We usually consent to some
action immediately prior to that action. Sometimes our past consent may be
thought to extend into the future. Living wills or last directives are now
widely accepted and may be thought of as a kind of extended consent. Even if extended
consent is widely accepted there remain some problems connected to the concept.
The Law Commission’s report defines extended consent in section 2.11 of "Consent
in Sex Offences" as follows,
“If what is relied on is past
agreement, this will mean both, (a) that, when previously given, the agreement
must have extended to the doing of the act at that later time, and (b) that it
must not have been withdrawn in the meantime. We believe that it should be made
clear that consent may be express or implied.”
The same report gives the
following example of extended consent in section 4.54.
“For example, at 8 pm P makes
it clear that she is looking forward to having intercourse with D that night.
By 11 pm she is too drunk to know what she is doing, but D has intercourse with
her anyway. Can it be said that she does not (because she cannot) consent to
the intercourse at the material time, namely the time of the intercourse? In
our view it cannot. Consent is not a state of mind which must invariably exist
at the time of the act consented to, but an expression of agreement to that act
– the granting of permission for it.”
The report’s authors seem to
believe P’s consent is valid and that D commits no offence. Their belief seems
to be based on the assumption that there are no conceptual problems with
extended consent. The starting point for this posting originated in a piece by
Jeremy Stangroom in the Philosophers Magazine’s blog, see 'More Sex
when drunk'. Stangroom believes, as I do, that P’s extended consent
would not be valid. If we are correct then either there is no such thing as
extended consent or the report’s definition is inadequate. In this posting I
will attempt to give a more adequate definition of extended consent.
The concept of extended
consent is certainly useful. For instance, if a patient is about to undergo
surgery then her informed consent is usually sought sometime prior to the
actual surgery rather than when she is being wheeled into the operating theatre.
The use of extended consent in this instance is good practice as it gives the
patient time to absorb the information she needs to make a balanced decision and
means she is less likely to make a decision under stress than if she made her
decision immediately prior to her operation. Of course such a patient may
withdraw her extended consent at any point up to the time her surgery takes
place. The idea of extended consent is also useful in cases in which a decision
has to be made whether or not to resuscitate a terminally ill patient. Such a
decision is made much easier if the patient has made a last directive or living
will. It might be thought the further consent is extended into the future the
more likely it is to lose its validity. However the above examples from medical
practice show that in practice this is not always true. None the less I shall
argue below that extended consent should not be extended too far. Intuitively
someone’s consent to surgery is perfectly valid tomorrow or even the day after
but the same does not apply to intercourse. In what follows I will firstly argue
what really matters for extended consent is the basis on which the consent
giver makes her decision and secondly how far her consent is extended.
If someone consents to
intercourse on what does she base her decision? Someone certainly doesn’t make
a decision to have intercourse based on pure reason. I would suggest her
consent is simply based on how she feels, on her mood. If this is accepted then
it is hard to see how she could possibly extend her consent for intercourse into
the future. She cannot know what sort of mood she will be in, how she will
feel, in a few hours time. If I am correct then consent to intercourse may only
be given at the time intercourse is going to take place contrary to the Law
Commissions report. However if someone consents to surgery then her mood at
either the time she made her decision or when surgery takes place seems to be irrelevant.
When someone consents to surgery she makes an informed consent decision. Her
decision is made using practical reason and based on the information provided
by her medical team together with her belief about what is best for her.
Practical reason doesn’t vary as moods do. It follows provided the patient’s
circumstances don’t change her consent decision would be the same tomorrow or
even next week. It further follows consent based on ongoing factors using practical
reason can be extended to some degree.
I now want to examine just
how far consent based on continuing facts using practical reasoning can be
extended. Can for instance the hypothetical withholding of consent be extended
years into the future as happens with living wills? The nature of practical
reason does not change over time so changes in practical reason cannot be used
to justify limiting the extension of consent. An essential element of any
living will is that the state of affairs relevant at the time the will is
implemented is the same as the facts envisaged when the will was made. It might
be thought provided this element is satisfied that there is no problem in
extending the withholding of consent as expressed in living wills. Such a
thought would be premature for what also matters is someone’s beliefs about
what is best for her given these facts. Her belief about what is best for her
depends on what she “cares about”. In this posting as in previous postings in
this blog I will assume to “care about” something means someone identifies
herself with which she cares about, see (1). Caring about in this sense has
nothing to do with whether someone is in the mood for intercourse or not. When
someone “cares about” something this “caring about” must have some persistence,
see (2). Of course when someone attends to other things she doesn’t have to
actively care about something she cares about but she does have to have a
disposition to care about it in the appropriate circumstances. It would seem to
be nonsensical to say if someone “cares about” something she could suddenly
abandon this care for ever. When the term “care about” is used in the above
sense it is roughly equivalent to loving something, see (3). It once again
might be thought because what we love, or “care about”, must have persistence
that that there is no problem in extending the withholding of consent as
expressed in living wills. Once again such a thought would be premature. Love
must have some persistence but both someone and what she loves can gradually change
over time.
The above suggests that
whilst consent can be extended there are limits to just how far this extension
can go. In particular there might be problems with extended consent in relation
to living wills. The first problem concerns the persistence of what someone
“cares about”. What someone “cares
about” must have some persistence, perhaps a few years, but does what someone
“cares about” always persist for a decade or even decades? The second problem
with living wills is that they anticipate hypothetical events. The will maker
may have no experience of these events to guide her. The patient giving her
consent for surgery tomorrow is not simply considering a hypothetical event but
one that is actually going to happen. Someone attempting to give her consent to
intercourse later that night has presumably some experience of intercourse. The
realness of these situations gives someone’s decisions focus. It may be that
someone when faced with a hypothetical situation may believe she would choose a
particular course of action in that situation. Later when actually in this
situation, she may discover she was wrong and that she cannot follow that
particular course of action. I would argue much the same is true of living
wills. Someone may specify in a living will she would not consent to treatment
in a certain hypothetical situation. However were this situation to occur she
might well have consented had she been able.
In spite of these problems I
believe living wills can be useful subject to the proviso that these wills are
fairly recent. For instance if a patient learns she has a terminal disease this
would be the ideal time to make a living will. If a living will is fairly
recent it should be realistic to assume it represents a patient’s extended
consent because what she “cares about” should not have changed during period
between the making and the implementation of the will. I also believe if the
validity of a living will is limited by time that this limitation is likely to
force the will maker focus on the hypothetical situation more seriously than
she would do if considering situations decades into the future. Perhaps living
wills should only be valid for up to five years.
In the light of my discussion
above I would redefine an extended consent decision as follows. An extended
consent decision is one made using practical reason which is based on what
someone “cares about” rather than her current mood, which is valid only for a
limited period of at the most a few years and has not been revoked. Someone
might object that this is not a useful definition in practice as it is
difficult to separate what someone “cares about” from her fleeting moods and
emotions. I accept this difficulty but would argue it doesn’t have the same
weight when applied to extended consent. I would suggest “caring about” a
decision involves being satisfied with that decision. I would further suggest
this is true irrespective of whether caring about is defined as simply a matter
of will or is connected to some emotional dispositions. I would further suggest
that being satisfied with a decision simply means no restlessness with the
decision or any desire to change it. If my suggestions are accepted then,
because extended consent by its nature allows ample time for any restlessness
with someone’s consent decision to become apparent, we can be satisfied in the
absence of this restlessness that her decision is based on what she “cares
about”.
1.
Frankfurt , H. (1988)
The Importance of What We Care About. Cambridge University Press page
83.
2.
Frankfurt , H. (1988),
page 84.
3.
Frankfurt , H. (1999)
Necessity, Volition, and Love. Cambridge University Press, page 165.
