The Doctrine of Informed Consent and Respect for Autonomy

In this posting I want to examine the relationship, if any, between the doctrine of informed consent and respect for autonomy. In doing so I will try to answer three important questions. Firstly is the doctrine of informed consent based on respecting autonomy or is it a sui generis doctrine? The fact we talk about a doctrine of informed consent seems to suggest the latter. Secondly if informed consent isn’t based on respecting autonomy should it be so based? Lastly if informed consent is based on respecting autonomy what type autonomy should that be?

Is informed consent based on respecting patient autonomy? According to Charles Foster the doctrine of informed consent is in a mess.

“Informed consent, in practice, is a bad joke. It’s a notion created by lawyers, and like many such notions it bears little relationship to the concerns that real humans have when they’re left to themselves, but it creates many artificial, lucrative, and expensive concerns.” Practical Ethics

Let us accept that the principles underlying informed consent are unclear. Let us try to start understanding these underlying principles by examining the process of informed consent in practice. When taking informed consent a patient’s doctors propose some form of treatment and provide the patient with the information he needs in order to make a good decision. The patient then agrees or refuses to agree to this treatment. What is the purpose of this process? The purpose of the agreement part of this process seems clear. The agreement part prevents the patient being treated against his will and his doctors from being accused of assault. The purpose of the information part is different. The purpose of this part is to enable patients to make good decisions. What exactly do we mean by a good decision? A decision which is in the patient’s best interests or an autonomous decision? In a medical setting a decision which is in a patient’s best interests is one which minimises harm to the patient,  maintains or improves his physiological health. The amputation of a patient’s gangrenous leg would be an example of acting in a patient’s best interests by minimising harm. The provision of drugs to control a patient’s blood pressure would be an example of acting in a patient’s best interests by maintaining his physical health. A kidney transplant would be an example of improving a patient’s health. Autonomy is concerned with self-government and very roughly speaking an autonomous decision is one by which someone governs himself. However self-government is simply governing oneself and need not always be good government. We can govern ourselves badly. Let us assume that a patient simply wants to accept his doctors’ judgement about his treatment and doesn’t want to receive any additional information. Intuitively such a decision can be seen as a decision by which he governs himself and as a result is an autonomous decision for after all we can simply choose to follow our lawyer’s advice and most would regard such a decision as autonomous. However under The General Medical Council’s proposed guidelines such a decision might not be seen as a valid informed consent decision.

“If, after discussion, a patient insists that they don’t want even this basic information, you must explain the potential consequences of them not having it. This might include being unable to proceed if you are not confident that their consent would be valid, or if you are not confident that the proposed course of action would be beneficial to the patient overall.” (1)

In the light of the above it would appear that The General Medical Council’s guidelines are not really based on respecting autonomy and the purpose of providing information when taking informed consent is to enable patients make decisions which are in their best interests.

It might be objected that I have only briefly sketched a certain account of autonomy and that a different account might mean that the doctrine of informed consent could be based on respect for autonomy. After all in my brief account the patient in my example above who fully trusted his doctors to make a decision on his behalf might wake up to unexpectedly find himself with only one leg. It might be suggested such a decision isn’t an autonomous one and that we should adopt a more substantive account. For the sake of argument let us assume an autonomous decision must be one that concurs with some generally accepted set of norms. If these norms are to be generally accepted then they must concern what is good for people. Autonomous decisions become linked to good decisions. An autonomous decision must be a good decision and a bad decision cannot be an autonomous one. I now want to argue against accepting such a substantive account of autonomy. If an autonomous decision must be a good decision because it must concur with some accepted norms then it might be questioned whether such an account of autonomy is really doing any useful work. A substantive account of autonomy puts itself out of business because we only need to consider good and bad decisions. We don’t need to consider autonomous decisions at all. Using a substantive account of autonomy an autonomous decision must of necessity be a good decision according to some accepted norms whilst on a content neutral account of autonomy an autonomous decision can be a bad decision. Of course it is preferable that an autonomous decision, using a content neutral account of autonomy, is a good decision which benefits the decision maker but the purpose of respecting autonomy remains simply to respect the decision maker as a person and the actual decision doesn’t of necessity need to be a good one. If we accept the above then we have two options. Firstly we could abandon the pretence that underlying the doctrine of informed consent is respect for autonomy or secondly we could accept that underlying the doctrine of informed consent is respect for a content neutral or primitive account of autonomy and modify the doctrine accordingly.

If we accept the above then there is not only a difference in complexity between substantive and primitive accounts of autonomy but more importantly these different accounts have a different focus. A substantive account focusses on respecting good decisions, a primitive account focusses respecting persons by simply accepting their decisions. Adopting a primitive account requires adopting a certain degree of humility. Let us accept that if the concept of autonomy is to remain a relevant one that it must be a primitive or content neutral concept based on respecting persons. Such a concept might be classed as a Millian concept. In the rest of this posting ‘autonomy’ will refer to such a concept. Let us also accept the first of the above options that the doctrine of informed consent is a doctrine in its own right and isn’t based on respect for autonomy. The informed consent process starts with a patient’s doctors proposing a course of treatment which they believe to be in his best interests, the patient then consents or refuses to consent to the proposed treatment. I argued above that the purpose of informed consent is to get a patient to consent to treatment which his doctors believe to be in his best interests. In almost all cases the patient simply consents and no problems arise. What is interesting are cases in which the patient refuses to consent. In these cases according to the doctrine of informed consent a patient’s doctors must be sure, or take steps to ensure, that the patient knows the consequences of his actions. However let us assume that the patient maintains his refusal of consent. By what standards is his competence to refuse treatment measured by and how is it assessed? If someone takes a driving test his competence to drive is based on his actual driving. This is not true when assessing someone’s ability to give informed consent. Someone’s competence to give informed consent isn’t based on his actual decisions. His decision might of course trigger a competence assessment but his competence isn’t dependent on his actual decision. Someone’s competence to give informed consent is based on his ability to make good decisions based on his best interests. I would suggest that someone who has the ability to make good decisions based on his best interests is self-governing, is autonomous.

As mentioned above the purpose of a driving test is to measure someone’s competence to drive and the criteria by which his competence is measured is by his actual driving. The same isn’t true of informed consent. I have argued above that the purpose of informed consent is to enable patients to make good decisions. I have further argued above that the way in which a patient’s competence to make good decisions is assessed is by his ability to make autonomous decisions. Such a mismatch creates problems and perhaps is one of the reasons why the doctrine of informed consent is in a mess. Two solutions might be suggested to remedy this mismatch. First the purpose of informed consent should be to enable a patient to make a good decision in particular circumstances and the patient’s competence should be assessed by his ability to make a good decision in these circumstances. Secondly the purpose of informed consent is to enable a patient to make an autonomous decisions and his competence to do so should be assessed by his ability to make an autonomous decision.

Let us consider the first of these options. Let us accept that a good decision is one that is in the decision maker’s best interests and that a decision is a competent one only if the decision is in the decision maker’s best interests. Clearly if someone makes a decision to do something which he believes isn’t in his best interests then he isn’t making a good decision. If a patient’s competence depends on him making a good decision then he is incompetent. Perhaps he is paralysed by fear. However in practice most people make decisions which they believe to be in their best interests. Moreover in a medical setting there is usually agreement between the patient and his doctors about what these best interests are. Unfortunately in a few cases in which there might be disagreement about what is in a patient’s best interests. Let us accept that a patient who makes a decision which he believes to be in his best interests, but which is generally believed not to be in his medical interests by his doctors, is making an incompetent decision. In practice if a child or cognitively challenged adult makes a decision which others believe isn’t in his best interests his competence might be questioned and he might be treated against his will. Unfortunately if a competent decision must be a good decision then the same considerations would seem to apply to all patients. Accepting the above would mean that if any patient makes a decision which is generally regarded as not being his best interests then his decision is an incompetent one. In these circumstances the patient’s doctors might be accused of paternalism or even epistemic arrogance. Fortunately in most cases a patient’s medical best interests and what the patient believes are his overall best interests concur. However this isn’t true in all cases. In cases in which these interests don’t concur do we insist that a competent decision is based on a patient’s best medical interests or what he believes to be in his overall best interests? Practical considerations and the need to avoid the charge of paternalism suggest that we should choose the second option. However if we accept that a patient is making a competent decision when it concurs with what he believes are in his overall best interests we are back to assessing a patient’s competence to make a good decision by assessing his ability to make an autonomous one and the above mismatch remains unresolved.

The above difficulties suggest that we should choose the second option. The purpose of informed consent should be to enable patients to make autonomous decisions about their treatment and that any competence assessment should be based on their ability to make autonomous decisions. This provides an answer to the second of my three initial questions. Informed consent should be based on respect for patient autonomy. Moreover if a substantive account of autonomy makes itself redundant as I have argued above the type of autonomy underlying informed consent must be a primitive or Milliian account. This answers the third of my three initial questions. Accepting this option has consequences for the amount of information which needs to be supplied to patients when taking informed consent. In the past under the doctrine of informed consent a patient’s doctors determined what risks the patient should be made aware of. However the Montgomery ruling Montgomery ruling stated that a patient’s doctors must ensure that the patient is aware of any and all the risks involved. If patients are to make informed consent decisions based on respect for autonomy they don’t always need to be aware of any and all the risks and the Montgomery ruling seems to suggest that informed consent shouldn’t be based on respect for a primitive account of autonomy. However if we accept that if an account of autonomy is to remain a meaningful account that it must be a primitive account then if informed consent is based on respect for autonomy  it must be based on a primitive account. Accepting the above means that a patient’s doctors should have a dialogue with him about any suggested medical procedure. How this dialogue proceeds shouldn’t be preordained by some doctrine but driven by the patient’s needs. In most cases this will include informing him about any major risks and life changes he faces. However some patients might need less or more information in order to make an autonomous decision. As mentioned above an autonomous agent can make an autonomous decision to trust the advice of his lawyer or financial advisor. If someone is non-autonomous someone else might be given power of attorney to act on his behalf. Are doctors any less trustworthy than lawyers or financial advisors? It would seem to me they aren’t. Does then the context in which informed consent takes place differ from other contexts such as the law and finance in respect of an agent’s ability to make autonomous decisions? Provided the patient isn’t incapacitated by fear it isn’t. It follows if informed consent is based on respect for autonomy that a patient should be able to make a competent decision simply to take his doctors’ advice. Other patients might need more information than is usually supplied in order to make an autonomous consent decision. Doctors should make it clear that they are willing to supply more information when this is requested. For instance it might matter greatly to a Jehovah’s witness whether there would be any possibility of a blood transfusion however remote this possibility might be.

It might be objected that I have already introduced an example which shows that it would be absurd to base the doctrine of informed consent on a non-substantive or Millian account of autonomy. Let us agree that if we accept such an account that a patient can make a competent decision simply to trust his doctor. Let us recall the patient with the gangrenous leg. Let us assume that this patient simply wants to trust his doctor and refuses to listen to any information provided. He wakes up and unexpectedly finds he has only one leg. Such a scenario seems absurd. Perhaps then the basis of informed consent should be a substantive account or the doctrine of informed consent should be a self-contained doctrine. Let us assume the patient still wants to simply trust his doctors and refuses to listen to any information concerning his procedure. Should he should be forced to listen to brief details connected to his proposed treatment? Do doctors really want to force someone to listen? Is it possible to force someone to listen and digest information? Should he be left to die? In this situation it seems more likely that the patient would be judged as incompetent. He would then be treated in accordance with his best interests and his leg removed. He wakes up with only one leg. In this case adopting a substantive account of autonomy or considering the doctrine of informed consent as a sui generis doctrine changes nothing. It follows that whilst adopting a non-substantive might lead to some highly undesirable consequences in a few rare cases that it doesn’t lead absurd ones.

1. Supporting patient choices about health and care: Draft Guidance for consultation, GMC, 2019, [33]-[35]

Lying and Autonomy

  

We live in a world surrounded by fake news and lies. According to Terry Pratchett in the Truth “A lie can run round the world before the truth has got its boots on.” However even if lies sometimes spread more easily than the truth, perhaps in part because they are more palatable and we want to believe them, in the long term the truth matters because the truth has persistence which lies don’t. Perhaps the dwindling number of climate change deniers supports the above. Are there any circumstances in which lying is beneficial? Stephen Rainey writing in practicalethics  suggests that some lies “can also be a kindness, when the truth might serve no good”. Let us accept that in most circumstances lying damages both individuals by depriving them of the truth and trust. Nonetheless is Rainey correct when he suggests some lies might be beneficial in some circumstance? For instance might a government be acting beneficently if it lied about the harm done by the coronavirus to prevent panic? The fact that lying hasn’t been eliminated from human culture over time suggests it isn’t harmful in all circumstances. In this posting I want to examine what these circumstances might be. It might be thought that this is merely an interesting rather than important question, however in seeking to answer this question raises a further question about the balance between acting beneficently and respecting autonomy. I will argue that if I lie to someone and even if my lie benefits him that I also fail to respect him by failing to respect his autonomy.

Most people have no problems with defining a lie. The definition I shall adopt here is that of Sam Harris

“To lie is to intentionally mislead others when they expect honest communication.” lying

Lies so defined can explicit when liars intentionally give someone false information. Lies can also be acts of omission when the liar intentionally withholds information others expect him to provide. Perhaps passive aggression can be a form of lying if it involves withholding information. Liars can be practised by individuals, institutions or even governments.

Let us now consider whether it is ever acceptable to lie for beneficent reasons. Because lying is so prevalent our intuitions suggest that it is. Everyday examples seem to confirm our intuitions. For instance the mother who lies to her child by saying she has no money left when her child demands a second ice cream. Someone who lies to his partner about a surprise party. A government which lies to its citizens about the seriousness of some disease outbreak, such as that caused by the coronavirus, in order to prevent mass panic. Nonetheless as Harris points out we need to be extremely cautious about our intuitions. Firstly we must be sure about our motives being really beneficent. Is the mother above really worried about her child becoming obese or simply taking an easy option? Secondly we must be careful not to damage trust. The government above might avert mass panic but in the future its pronouncements on health matters might not be so readily trusted. If a lie cannot be maintained then it is better not to lie at all in order to retain trust. The Chinese government’s attempt to suppress the full extent of the coronavirus outbreak in Wuhan seems to support the above. However let us accept that there are at least some cases in which we might lie for beneficent reasons in which our motives are clear and we don’t damage trust. For instance it would be perfectly acceptable to lie to a stalker carrying a knife about the whereabouts of his ex-girlfriend.

Let us accept that in certain circumstances we can act beneficently by lying, telling white lies. Let us further accept that in some of these circumstances trust isn’t damaged. In such circumstances is Rainey correct when he suggests that lying might be an act of kindness? It certainly seems that because we are behaving beneficently that our actions might be classed as acts of kindness. However I now want to argue even if our lies serve a beneficent purpose and can be classed as acts of kindness that nonetheless it is almost always wrong to lie. Most pet owners are kind to their pets and act beneficently towards them but most people don’t want to be treated in the same way as pets however kindly. They want to be recognised as the sort of creatures who can make their own decisions. To be autonomous. Autonomous people govern themselves and this requires making decisions that matter to them. To make decisions that matters to someone requires information and lying deprives him of some of that information. It follows if we lie to someone we fail to respect his autonomy. Moreover if someone becomes aware of being lied to this lack of respect is a form of rudeness see the philosophy of rudeness.html or form of contempt. It further follows if we believe it is right to respect someone’s autonomy that we shouldn’t lie. It further follows if a government lies to or intentionally misleads the electorate over some issue such as Brexit that it not only deprives the electorate of some of the information needed to make a good decision it also shows a lack of respect for the electorate and perhaps even democracy itself. This lack of respect is similar to the lack of respect many colonialists showed for native people even if their motives were beneficent.

I now want to consider two objections to accepting the above conclusion. My first argument will be based on respecting autonomous persons and my second on respecting autonomous decisions. Firstly it might be objected that we should give precedence to acting beneficently over respecting autonomy and that sometimes lying is the only effective way to act in someone’s best interests. I now want to present two counter arguments against accepting the above. Let us accept that if we need to lie to someone in order to act in what we believe to be their best interests that there must be a clash between what we believe to be in their best interests and what they perceive to be in their best interests. It would appear that we believe we know better than the agent about what is in his best interests or should be in his best interests. In this situation we might be accused of epistemic arrogance. Secondly I would argue if we accept the above objection we don’t really understand what respect means. We can sometimes act beneficently towards someone but part time respect isn’t respect we can’t respect someone only some of the time. We can of course respect someone’s courage but not her wit. However when we respect her as a person we can’t respect her only some of the time. Part time respect just isn’t respect at all. It follows if we lie to someone in order to act beneficently we are not giving precedence to acting beneficently over respecting autonomy we are in reality failing to respect autonomy at all.

Now let us consider respecting autonomous decisions. Let accept to respect an autonomous decision means to accept it. It might be objected that any difference between respecting someone’s autonomous decisions and acting beneficently towards him is largely illusory. This objection depends on accepting a substantive account of autonomy in which autonomous decisions must concur with some accepted norms, autonomous decisions must be good decisions. Accepting such an account means that if we lie to someone, who is making a bad decision, in order to act beneficently towards him we are still respecting his autonomy. Bad decisions just aren’t autonomous decisions. However I am reluctant to accept a substantive account of autonomy. A substantive account has become more prominent recently largely in order to make respecting autonomy concur better with the doctrine of informed consent. Unfortunately as I have argued elsewhere a substantive account of autonomy puts itself out of business, see autonomy and toleration . If autonomous decisions must be good decisions in accord with some accepted norms then we can just consider good decisions and autonomy becomes a redundant concept. Of course if someone is to make an autonomous decision he mustn’t be misled or coerced but it follows that if autonomy is to remain a meaningful concept that we should adopt a primitive or Millian account. It further follows if autonomous decisions needn’t be good decisions that if we lie to a mature adult in order to protect him from a bad decision that we are failing to respect his autonomy. I would suggest accepting the above has implications for apology. Insincere apology is a form of lying. Perhaps in most circumstance apologising without really mean it is a form of white lying. Nonetheless such apologising just compounds any wrong by showing a lack of any real respect to the one lied to.

I have argued that it is always wrong to lie if this means we fail to respect someone’s autonomy even this is done for beneficent reasons. The question now arises is lying ever acceptable? If the mother of a young child who pesters her to buy another ice cream lies then her lie can be justified. The child isn’t autonomous yet and having two ice creams isn’t in her best interests. However caution is needed if we accept a primitive account of autonomy as I suggested above then slightly older children who are capable of making autonomous decisions and lying to them fails to respect their autonomy. Sam Harris uses an extreme example and asks should we lie even if with “Nazis at the door and Anne Frank is in the attic”. Of course we should lie. We should lie to protect Anne Frank and her autonomy. Lying to someone who is infringing someone else’s autonomy is perfectly acceptable, lying to protect autonomy is lying to respect autonomy.

What conclusions can be drawn from the above? Firstly we should never lie if this means failing to respect autonomy even if our lies might be in what we consider to be someone’s best interests. Even white lies are wrong. Secondly if autonomy is to remain a meaningful concept we must always give precedence to respecting autonomy over acting beneficently. Lastly lying to autonomous agents can never be kind.

Different Degrees or Different Types of Rape?

Rape is an offence which can vary greatly in the degree of its seriousness. Unlawful killing is split into two different offences, manslaughter and murder. In this posting I want to examine whether it might also be beneficial to split rape into two different offences or continue to accept a single definition. If we continue with the later course then because the seriousness of the rape can vary greatly this variability might lead to some less serious cases not being prosecuted. Perhaps if we allow for different types of rape these less serious cases might become more likely to be prosecuted. Perhaps also if we define different types of rape it might be clearer to some potential rapists that cases which might be considered as borderline cases under a single definition are indeed forms of rape.

I want to start my examination by considering four examples which are all very different. These differences suggest that our concept of rape is really an umbrella one. These examples highlight the differences involved. The first case was used by Mike LaBossierre.

“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pyjamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.” talking philosophy

My second example is that of 78 year old man who had sex with his wife who was suffering from Alzheimer, see Hastings Center  . She didn’t resist his advances but was incapable of giving any form of consent. My third example is of someone who is violently raped by a stranger. My last example is that of a paedophile having sex with an underage child.

Do these examples suggest any ways in which how different types of rape might be defined? Firstly it might be suggested that different types of rape might be differentiated by the amount of violence is involved. If we accept the above suggestion then my first two examples would be considered as a less serious type of rape and my third example a more serious type. Unfortunately my fourth example shows any such a suggestion to be unsound. Consider a paedophile having sex with a child who is neither forced nor unwilling. If we accept that rape can be differentiated by whether violence is involved then this case might be classed as a less serious type of rape. However this seems to be a clear example of extremely serious rape. It follows that different types of rape cannot be differentiated by the use of violence.

Next it might be suggested that different types of rape might be differentiated not simply by the violence involved but by the actual harm inflicted. Let us accept that not all the harm involved in rape need be physical harm. Accepting the above would mean that my example of the paedophile need not be considered as a less serious type of rape. Let us now consider this suggestion using my other examples. In my third example the victim would suffer physical harm and great psychological trauma. However the victims in my first two examples wouldn’t suffer the same degree of harm. The student in my first example suffered no physical harm and only believed she was raped in retrospect and so any psychological trauma would seem to be slight whilst in my second example we are even unable to say if any trauma took place at all. In spite of the above I would be reluctant to accept that different types of rape might be differentiated by the harm involved for two reasons. Firstly theft is not split into different types based on how much the thief steals, theft is theft, and I can see no obvious reason why rape should be different in this respect. Secondly the old man having sex with his demented wife might not be considered as a less serious form of rape but not an example of rape at all.

Lastly might different types of rape might be defined by differences in the refusal of consent. In what follows I will assume that a refusal of consent can not only be verbal but take the form of active resistance to sexual intercourse. According to the Oxford English Dictionary rape is,

“Typically committed by a man, of forcing another person to have sexual intercourse with the offender against their will.”

Let us consider my first and third examples. Let us assume in my third example that the victim fought back and maintained her refusal of consent provided she wasn’t prevented from doing so. In my first example the victim refused to consent but it might be questioned whether her actions maintained that refusal. She wasn’t prevented from maintaining her refusal to consent but didn’t do so. It might be suggested that type one rape should be defined as one in which the victim refuses consent and that whilst undergoing sexual intercourse maintained her refusal or is prevented from doing so. Type two rape might be defined as one in which the victim refuses consent but whilst undergoing sexual intercourse but fails to maintain her refusal whilst remaining capable of doing so. This division of rape into two different types might appear attractive because by allowing these two different types might mean some cases of rape might be prosecuted as type two rapes which wouldn’t have been prosecuted if we retain a unified concept of rape. However these are incomplete definitions because they fail to deal with cases in which the possibility of consent doesn’t exist such as in my second and fourth examples. It might be suggested that this difficultly might be avoided if we define type one rape as one in which the victim is unable to give valid consent or if she is able give consent refuses to so and whilst undergoing sexual intercourse maintains her refusal or is prevented from doing so. Initially his suggestion seems to be an attractive for one for in most cases in which sexual intercourse taking place without the possibility of consent are serious cases. Sex with children or adults unable to give consent due learning difficulties are serious offences. Unfortunately my second example gives us a reason to question adopting this approach provided we accept that the old man having sex with his demented wife was a form of rape. Intuitively it seems wrong to class his rape as the same type of a rape as that of a violent rapist for whilst we might still blame the old man for his actions we can also pity him. We would have no such pity for the violent rapist. Perhaps then we should include cases in which consent is impossible with type two rapes. Type two rape might now be defined as rape defined cases in which the victim is unable give valid consent or if she is able do so refuses to consent and her refusal of consent is not maintained whilst undergoing sexual intercourse when it is possible for her to do so. Unfortunately my fourth example shows the difficulties with adopting this approach. It would seem to be wrong to put a paedophile having activity with a child in the same class of rape as that of someone having activity with a victim who only comes to realise that she has been raped in retrospect. At this point it might be objected that my first example isn’t a less serious type of rape, it isn’t a type of rape at all. Underlying my definition of both types rape is the idea that consent can sometimes be implicit rather than explicit. It might be argued that the student in my first example by not maintaining her refusal of consent was in practice giving implicit consent. Perhaps if the student in question hadn’t initially refused consent then her actions might be construed as giving implicit consent. I would suggest that explicit and implicit consent cannot be mixed up and that an explicit refusal of consent can only be changed by the explicit giving of consent. Explicit consent is stronger than implicit consent. It follows the student was indeed raped. Her failure to maintain her refusal of consent doesn’t show she wasn’t raped but I would suggest it does show her rape was a less serious type of rape than some others. It also illustrates why the idea of type two rape could be a useful concept.

In the light of the above it seems my initial intention to split rape into two types fails. It fails because of difficulties in accommodating cases in which no consent is involved within either of these two types. When I started writing this posting my intention was to show that rape should be split into two types, the above shows that in philosophy one must always be prepared to change one’s mind. Can anything be salvaged from the above discussion? Perhaps if we want to prosecute an increased number of rape cases then rapes might be split into three types. Category one rape might be defined as one in which the victim refuses consent and whilst undergoing sexual intercourse maintains her refusal of consent or is prevented from maintaining her refusal. Category two rape might be defined as one in which the victim refuses consent but whilst undergoing sexual intercourse fails to maintain her refusal of consent whilst remaining able to do so. Category three rape might defined as any form of sexual intercourse in which the victim is unable to consent. What might be the consequences of adopting these three different types? One consequence might be a greater number of prosecutions for rape. Cases such as the student in my first example might be prosecuted whilst he might not have been prosecuted using the current definition. Splitting rape into three types would have an effect on sentencing. The sentencing of rapists guilty of category one rapes would remain unchanged. The sentencing of rapists guilty of category two rapes might be best dealt with by restorative justice. It might be objected that restorative justice doesn’t deal with the serious of the crime. In response I would point out restorative justice is not easy for the offender. The offender doesn’t simply have something done to him but has to seriously address behaviour, doing so means confronting the sort of person he is and learning to make changes. One of the aims of restorative justice is not just to make the offender feel he has done wrong but also feel the wrongness itself. I would also point out that whilst category two rape isn’t a trivial offence it is a much serious offence than category one and should be considered as such. I have suggested that the severity of sentencing for category one and two rapes should have a fairly tight domain the same isn’t true of category three. A paedophile might attract expect a severe sentence whilst the old man having sex with his demented wife is to be pitied and simply needs to learn his actions were wrong.

What conclusion can be drawn from the above? Clearly splitting rape into three different types is a messy business. However life is sometimes a messy business and this messiness might be a price worth paying if it leads to the prosecution of some cases which might not otherwise be prosecuted and a clearer understanding of what it means to rape someone. Should we do so? I’m not sure

The Logic of Relieving Suffering and Voluntary Euthanasia

Recently a seventeen year old Dutch girl, who had been repeatedly raped as a child and who suffered from post-traumatic stress disorder, anorexia and depression, starved herself to death. This was widely reported as an example of euthanasia, see BioEdge . Simply starving oneself to death isn’t euthanasia. It was unclear in this case whether her doctors helped to control her suffering. In this posting I want to explore whether doctors who relieve the suffering of a patient who starves himself to death should be regarded as assisting in suicide. In order to make my argument I will first explore what can be considered as the legitimate use of medical skills. Let us start with the premise that the decreasing of someone’s suffering is a legitimate use of medical skills. However accepting this premise is too simplistic. Surgery might actually increase someone’s suffering in the short term and surgery is clearly a legitimate use of medical skills. Let us revise the premise so that decreasing someone’s overall suffering is always a legitimate use of medical skills when this is possible.

Let us now agree that decreasing someone’s suffering is usually a legitimate use of medical skills but is it always so? I now want to examine two arguments suggesting it isn’t. Firstly it might be argued that some people deserve to suffer and that it would be wrong to alleviate their suffering due to dessert. Consider a convicted rapist who became infected with HIV when committing his crime. Let us assume that he is now serving his sentence in relative isolation due to the hideous nature of this crime and as a result is unable to infect others. Would treating him for his HIV would be an illegitimate use of medical skills? What reason could be advanced for illegitimacy of treatment in this case? It might possibly be argued that in this case the rapist deserves to be HIV positive and that as a result treating him for this state should be an illegitimate use of medical skills. This extreme example might concur with many people’s intuitions but seems to run counter to the caring ethos of medicine. I would argue linking the legitimacy of the use of medical skills to dessert is problematic in all circumstances. Accepting that it is illegitimate to treat some people whilst it is legitimate to treat others because of dessert appears to imply that it is legitimate to use medical skills to achieve dessert. The domain in which the employment of legitimate medical skills is extended from simply treating suffering to treating suffering and ensuring just dessert. We might link suffering and dessert together but nonetheless they remain independent conditions. Someone can suffer without deserving to do so and someone may deserve to suffer without actually doing so. If we accept that the legitimate use of medical skills is linked to dessert in addition to suffering then provided a death sentence could be considered as just it would be a legitimate use of medical skills to carry out this sentence. An interesting account of the death penalty and the proper ends of medicine is to be found can Silver (1).

Secondly it might be argued that medical professionals have no duty to alleviate suffering when this is caused by self-harm and the sufferer is fully aware his behaviour is the cause of his suffering. In practice accepting this argument might mean that there is less of a duty to treat conditions when these conditions are caused by alcoholism, obesity and anorexia. Clearly alcoholics, the obese and anorexics suffer even if this suffering is caused by their own behaviour. What reason could be advanced as to why treating them would be regarded as an illegitimate use of medicals skills? One reason might be that because their suffering is self-imposed they can simply stop the suffering by changing their behaviour and there is no need to employ medical skills. I’m doubtful whether the eating habits of anorexics or the obese can simply change their behaviour and alcoholism is an addiction.  However let us assume that someone’s suffering is self-imposed and that can change his behaviour and he will cease to suffer. In this context is the use of medical skills to alleviate his is an illegitimate use? It might be suggested he deserves to suffer because his suffering is self-imposed. However if we accept this suggestion it would re-introduce all the problems of dessert outlined above. Both of the above arguments as to why medical professionals don’t always have a duty to alleviate suffering when this is possible appear to be unsound. It follows that we should accept the premise that the decreasing someone’s overall suffering is always a legitimate use of medical skills when this is possible. It is of course possible that there are other legitimate uses of medical skills, see Cosmetic Surgery, Enhancement and the Aims of Medicine . 

I now want to consider the relationship between the relief of suffering and voluntary euthanasia. In particular I want to focus on the relief of suffering of those people who voluntary stop eating and drinking (VSED). Most people who adopt VSED do so because they have a terminal illness but this isn’t true in all cases as the Dutch girl shows. Let us assume that the relief of someone’s suffering caused by VSED is assisting in voluntary euthanasia. I have argued above that decreasing someone’s overall suffering is always a legitimate use of medical skills. It follows relief of someone’s suffering caused by VSED is a legitimate use of medical skills. It further follows that assisting in voluntary euthanasia is a legitimate use of medical skills. Some might be unhappy to accept these conclusions but being unhappy about these conclusions has nothing to do with the logic of the argument or the validity of the conclusions. 

Lastly let us assume that the relief of someone’s suffering caused by VSED isn’t assisting in voluntary euthanasia. If this is the case then there would seem to be no reason to be unhappy about the deployment of medical skills to alleviate someone’s suffering caused by VSED. However I find hard to see how alleviating someone’s suffering, when this suffering is caused by a desire to die, shouldn't be regarded as a case of physician assisted suicide without using the principle of double effect.

1. Silver D, (2003) Lethal Injection, Autonomy and the proper ends of Medicine, Bioethics 17(2), pp. 205-211.