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better treatments, without invading bodily integrity in ways that may
hurt or harm, and at the limit damage, health, life and limb. Invasive
and potentially damaging action is generally prohibited: it may cause
pain, injure, poison and even kill. However, in medical and research
practice there may be good reasons for consenting to specific inva-
sive interventions. They may benefit individual patients, or establish
how to benefit patients with a certain disease. Even when potentially
beneficial invasive interventions go well, they may cause discomfort,
pain, anxiety and harmful  side effects; and where things go badly,
they may lead to complications, serious injury, even death. If
invasive and risky action were undertaken without consent, it
would normally violate very significant ethical and legal norms.
Medical treatment, let alone surgery, done without consent might
constitute assault or injury. Administering powerful drugs without
consent might amount to poisoning. Conducting clinical trials with-
out consent might treat others as guinea pigs. Informed consent
requirements provide effective ways of waiving requirements and
expectations in limited and defined ways in some cases, while insist-
ing that these requirements and expectations nevertheless be
respected whenever they are not specifically waived. Although the
centrality of consent in discussions of clinical and research ethics has
3
Cf. Roger Brownsword  it is a mistake to view consent as a free-standing or detached
principle (on the same level as privacy, confidentiality and non-discrimination);
rather, consent is implicated in the right to privacy, the right to confidentiality,
and the right against discrimination  in each instance, the right-holder may consent
to waive the benefit of the right in question .  The Cult of Consent: Fixation and
Fallacy , King s College Law Journal, Vol. 15 (2004), 223 51 (p. 225). We would add
that consent can be used to waive a far wider range of basic norms.
76 Rethinking Informed Consent in Bioethics
grown massively in recent decades, these realities have been recog-
nised for far longer.4
Anybody who inflicts medical treatment without consent, or
conducts research on others without their consent, is likely to violate
important ethical norms and legal requirements. Those who inter-
vene against the will of a patient or research subject are likely to
breach ethical norms and laws that prohibit the use of force, duress or
coercion. Those who do not intervene against the will of a patient or
research subject, but nevertheless act without consent, are likely to
breach ethical norms (and possibly laws) that prohibit deception,
manipulation or fraud. In some cases, action without consent
breaches norms of both types. Invasive investigations, treatment
and experiments undertaken without informed consent normally
violate significant ethical norms and legal requirements, and are
likely to violate fundamental rights of the person, as well as to
flout or neglect a range of legitimate expectations.
Consent requirements offer a routine way of obtaining a limited
waiver of requirements that are generally inviolable. They confer a
special right  a permission  on certain medical practitioners or
researchers to act in ways that would otherwise be prohibited.
Consent may not be sufficient to waive such norms in all cases5 
but it functions reliably as an everyday way of permitting action that
would otherwise violate important norms and standards. So, far from
providing the fundamental ethical standard for biomedical practice,
informed consent justifies action only against the background of
other important ethical and legal norms, and is used to give limited
4
See P. Dalla-Vorgia, J. Lascaratos, P. Skiadia, and T. Garanis-Papadotos,  Is
Consent in Medicine a Concept Only of Modern Times? , Journal of Medical
Ethics 27 (2001), 59 61.
5
For example, consensual cannibalism and consensual torture may be prohibited in
some jurisdictions. But this is not invariably the case. For examples of legal
uncertainty consider the 2004 trial of the German cannibal, Armin Meiwes, who
claimed in his defence that his victim consented, where the court reached a verdict
of manslaughter, and the appeal court a verdict of murder; or consider R. v. Brown
[1993] 2 All ER 75 (HL), in which the lower court finding that certain sado-
masochistic practices were lawful if consensual was overruled on appeal to the
House of Lords.
How to rethink informed consent 77
permission to act and intervene in ways that would otherwise do
wrong to others, or otherwise fail to meet legitimate expectations.6 It
provides a way by which individuals who would otherwise be wronged,
or whose legitimate expectations would otherwise be denied, can
waive those requirements on others in limited ways in a particular
context, or agree to adjust legitimate expectations in limited ways in
a particular situation.
SCOPE AND STANDARDS
We do not doubt that the consent of patients and research subjects to
invasive procedures can be of high importance. There have been [ Pobierz całość w formacie PDF ]