Consent has emerged as a concept central to modern medical ethics. Often the term is used with a modifier, such as informed or voluntary or full, as in loosely used phrases like "fully informed and voluntary consent." In some form or another, modern ethics in health care could hardly function without the notion of consent.
While we might occasionally encounter an old-guard retrograde longing for the day when physicians did not have to go through the process of getting consent, by and large consent is now taken as a given, at least at the level of theory. To be sure, we know that actual consent is not obtained in all cases and even when consent is obtained, it may not be adequately informed or autonomous. For purposes of this discussion, we shall not worry about the deviations from the ideal; rather the focus will be on whether consent ought to be the goal.
This consensus in favor of consent may turn out to be all too facile. Consent may be what can be called a transition concept, one that appears on the scene as an apparently progressive innovation, but after a period of experience turns out to be only useful as a transition to a more thoroughly revisionary conceptual framework.
This paper will defend the thesis that consent is merely a transitional concept. While it emerged in the field as a liberal, innovative idea, its time may have passed and newer, more enlightened formulations may be needed. Consent means approval or agreement with the actions or opinions of another; terms such as acquiescence and condoning appear in the dictionary definitions. In medicine, the physician or other health care provider will, after reviewing the facts of the case and attempting to determine what is in the best interest of the patient, propose a course of action for the patient's concurrence. While a few decades ago it might have been considered both radical and innovative to seek the patient's acquiescence in the professional's clinical judgment, by now that may not be nearly enough. It is increasingly clear if one studies the theory of clinical decisionmaking that there is no longer any basis for presuming that the clinician can even guess at what is in the overall best interest of the patient. If that is true, then a model in which the clinician guesses at what he or she believes is best for the patient, pausing only to elicit the patient's concurrence, will no longer be sufficient. Increasingly we will have to go beyond patient consent to a model in which plausible options are presented (perhaps with the professional's recommendation regarding a personal preference among them, based on the professional's personally held beliefs and values), but with no rational or "professional" basis for even guessing at which one might truly be in the patient's best interest. To demonstrate that the concept of consent will no longer be adequate for the era of contemporary medicine, some work will be in order. After briefly summarizing the emergence of the consent doctrine, we will look at what we learn from axiology--the philosophical study of the theory of the good--that calls into question the adequacy of consent as a way of legitimating clinical decisions. This, I suggest, will provide a basis for demonstrating why experts in an area such as medicine ought not to be expected to be able to guess correctly what course is in the patient's interest, and therefore should not be able to propose a course to which the patient's response is mere consent or refusal.
The History of Consent
The history of consent reveals that it is a relatively recent phenomenon. None of the classical documents in the ethics of medicine had anything resembling a notion of consent, informed or no. Autonomy of decisionmaking, especially lay decisionmaking, was not in the operating framework. For example, neither the Hippocratic oath nor any of the other Hippocratic writings says anything about consent or any other form of patient participation in decision-making. …