Can Consent be Presumed?

Proponents of an opt out scheme of organ donation seem to assume that in such a scheme, provided someone has not opted out, his consent for organ donation may be presumed. Govert Den Hartogh argues out such an assumption is unsound (1). In this posting I will briefly outline Den Hartogh’s argument. I will accept his argument. Nevertheless I will then argue that nonetheless an opt out scheme still respects donor autonomy.

Consent is roughly defined as the giving of agreement or permission for some act. Clearly the dead cannot give their permission for organ removal. Proponents of an opt out donation scheme argue someone’s consent may be presumed provided he hasn’t opted out of the scheme. Den Hartogh argues “presumed consent” depends on a particular conception of consent. The mental state conception of consent “according to which consent to an action refers to a disposition to prefer or wish or desire that action to be done” (2). “Presumed consent” means it may be presumed that a donor had a disposition to donate her organs and by transplanting some of her organs a transplant team are simply fulfilling her wishes. It is clear that not all potential donors who have failed to opt out had would have had a disposition to donate at the time of donation. It follows that accepting presumed consent would mean accepting that some people who did not have a disposition to have their organs transplanted would nevertheless have had these organs transplanted. It further follows that “presumed consent” as defined above would be better described as “probabilistic presumed consent”. “Probabilistic presumed consent” simply means it was more probable a potential donor had had a disposition to donate than he did not. There are two problems associated with “probabilistic presumed consent”. Firstly accepting “probabilistic presumed consent” seems also to presume the majority of potential donors did have a disposition to donate. However as Den Hartogh points out evidence from the Netherlands would suggest this presumption may be unsound (3). Howevereven if we accept that a majority of potential donors did in fact have a disposition to donate why should we accept this majority view? After all in criminal cases jurors do not presume the defendant guilty because the majority of the evidence points to his guilt. The evidence must be overwhelming, beyond reasonable doubt.

More importantly in my opinion Den Hartogh argues the underlying conception of consent as a disposition to prefer, wish or desire that action is done is unsound. He argues that any form of genuine consent must involve the idea of authorisation. Possibly someone who has died and made a valid will might be said to have authorised some action. However if he has not made a will the idea of his presumed authorisation clearly seems nonsensical. It follows provided we accept Den Hartogh’s arguments that “presumed consent” is a fiction and hence not really a form of consent.

If we accept “presumed consent” is not a genuine form of consent does this mean that doctors should only be able to transplant organs from those who have registered as donors? I will now argue it does not. I will argue however even though “presumed consent” is meaningless in the context of organ donation it does not follow we cannot take healthy organs from donors who have not opted out. The reason why consent is central to medical ethics is respect for autonomy. Because I have argued consent is meaningless in this context I will base my argument directly on respect for autonomy. Den Hartogh believes when we presume someone consents the following holds. There is no compelling evidence to hold that someone would consent, nevertheless we proceed as if he had consented, unless there is sufficient evidence to show he wouldn’t have consented (4). In an opt out system we only have probabilistic evidence a donor might have consented to donate his organs. However I will now argue we do have evidence that a potential donor who did not opt did not care much about what might happen to his organs after his death. If he had cared enough he would have opted out. Autonomy is linked to caring about. If someone cares about nothing he is merely a wanton and it is difficult to see how he can lead any sort of coherent life. If autonomy is based on caring about then an opt out system offers evidence that a potential donor, who had not opted out, would not have made an autonomous decision to refuse to give consent to the removal of his organs. It follows we have some grounds to presume that if we transplant his organs we are not disrespecting his autonomy.

In the light of the above it seems reasonable to conclude that an opt out system of organ donation might be justified by respect for donor autonomy. And that it is permissible to transplant organs from all potential donors who have not opted out of the system. At this point I want to make it exactly clear what I am suggesting. I am not suggesting a potential donor would have made an autonomous decision to donate had he been in a position to do so. What I am suggesting is that a potential donor is someone who would not have made an autonomous decision not to donate. I would further suggest the needs of the potential recipients of his organs means we are justified in taking these organs provided he has not opted out.

It might be objected that if an opt out system is introduced some people who would have made an autonomous decision not to donate will not opt out because they were unaware of the need to do so. I accept my objectors point. However it seems to me her objection can be nullified to some extent provided the introduction of an opt out system is given sufficient publicity. My objector might then further object that some time after the introduction of the scheme people’s awareness of the need to opt out if they don’t wish to have their organs transplanted will diminish. I accept my objector’s further point. However once again I think this point may also be nullified to some extent. If an opt out system of organ donation is not to infringe donors autonomy must include an ongoing information program. Respecting autonomy involves making sure people have the opportunity to exercise their autonomy it does not involve ensuring they actually do so. This information should actively be made available in doctor’s surgeries and perhaps taught as part of citizenship in schools. Providing such information should not be costly. It follows that provided such information continues to be provided that an opt out system of organ donation will not lead to a diminishment of people’s awareness of the need to opt out if they don’t want to have their organs transplanted. Finally my objector might object that even if people are for the most part aware of the need to opt out that some people who don’t wish to have their organs available for transplant might delay doing so. She might suggest any opt out system does not fully respect the autonomy of these people. I would reject this last objection. Respecting autonomy involves making sure people have the opportunity to exercise their autonomy; it does not involve ensuring they actually do so.

1. Govert Den Hartogh, 2011, Journal of Applied Philosophy, 28(3)
2. Den Hartogh, page 296.
3. Den Hartogh, page 299.
4. Den Hartogh , page 297