The Importance of Disambiguating Questions about Consent and Refusal

Guest Post: Rob Lawlor

Re: Cake or death? Ending confusions about asymmetries between consent and refusal

Imagine you have an adolescent patient who is in need of life saving treatment. You offer him the treatment, assuming that he would consent, but he refuses. As he is not yet a competent adult, you decide to treat him despite the fact that he wishes to refuse treatment.

Now consider the question: does it make sense to say that there is an asymmetry between consent and refusal?

If you are familiar with the term “asymmetry between consent and refusal”, the chances are that you will believe that you know what the question means and you are likely to have an opinion regarding the answer. And if you are like John Harris, you may also think that the answer is obvious and that any other answer would be “palpable nonsense”. However, if you are not familiar with the term or with the relevant literature, you may be far less confident that you even understand the question.

Despite their lack of familiarity with the question, I believe the latter group may have a better understanding of the issue than the first group. Why? Because these people are wondering, “What does this question mean?” My claim is that we would make more progress if more people took the time to ask this question. The phrase “the asymmetry between consent and refusal” allows us to capture the topic of a particular debate in a fairly succinct way, but I suggest that it obscures the ethical issues, rather than illuminating them.

What does it mean, in ordinary language, to ask whether there could be an asymmetry between consent and refusal?

When we ask this, we could be asking any of the following questions (and possibly more):

Is it possible for someone to be competent to a certain degree to consent to treatment, but then be less competent to refuse that same treatment?

Is it possible for someone to be competent enough to consent to treatment, but not competent enough to refuse treatment?

Is it permissible (or even coherent) to offer a person two options – to consent to treatment or to refuse treatment – and then deny them the right to refuse treatment, but still insist that they had a choice?

Is it permissible to give a person a legal right to consent to treatment, but not a legal right to refuse treatment?

Is it permissible to test more carefully whether a person is competent based on whether the refuse or consent to treatment?

These are all different questions – and some differ radically from each other. Yet they could all be understood to be asking whether there could be an asymmetry between consent and refusal. But they are not just different ways of asking the same thing. They are substantially different questions, and we can coherently answer yes to some and no to others. Once we identify and separate these questions we will have a better chance of finding the right answer to each of these questions.

Essentially, from my perspective, the question I started with was a trick question – because the answer to that original question depends on what we think it means. And, as I have stated above, it can mean very different things. Yet, many authors answer this question – does it make sense to say that there is an asymmetry between consent and refusal? – without distinguishing clearly between the various different interpretations. As a result, many of the authors involved in the debate have been talking past each other. In “Cake or Death? Ending Confusions about Asymmetries between Consent and Refusal” I argue that we will only make progress if we recognise that we have a number of different questions that need answering, and if we recognise that we should not give the same answer to the different questions.

Incidentally, the title of my paper comes from Eddie Izzard’s “Cake or Death?” comedy routine, which is actually pivotal to my argument in this paper.