Issues of Presumed Consent in Medical Interventions

Matthew Hodder - Writer

John Harris establishes that presumed, or proxy consent is no justification to medically treat patients, thus informed consent remains the most important method to ethically justify medical interventions, based on a respect for autonomy and a concern for welfare (Harris, 2003, p.10). This essay shall briefly explain Harris's justification for his ‘best interests test' which seeks to reject and replace presumed consent when medical intervention is needed in cases where consent is difficult to ascertain. In response I shall explain that there is not much of a difference between the `best interests test' and presumed consent. I shall then explore why presumed consent is adequate to allow physicians to act in cases of medical emergency, showing that Harris's concerns are not necessary.

In medical decision-making, informed consent is a key ethical driver. It feeds directly into the notion of autonomy as it allows the physician to administer treatment that may save lives which demonstrates “a dimension of respect for persons... consenting to things that affect us that we make... consistent with our own values'' (Harris, 2003, p.11). O'Neill also concurs that competency is needed for consent (2003, p.4) based on the realisation of autonomous and rational powers. In the case of an unconscious patient, no genuine consent can be obtained when proposing treatment, the unconscious patient is not able to exercise their autonomy. If no informed consent can be given in cases like unconscious patients, children or otherwise, then which guidelines can one follow to behave ethically? Harris says that a notion of presumed consent is not sufficient to ethically act (Harris, 2003, p.11), instead he uses the ‘best interests test' to justify medical intervention in such cases. A rather simple concept, instead of presuming that the patient would consent to medical treatment X, we may continue with X because it is “the right thing to do'' (Harris, 2003, p.11). X is right because it is in the patient's best interests to have X done. 

I will now argue for several issues that arise from Harris's observations. The first concerns the lack of difference between the best interests test and presumed consent. The second argues that presumed consent is ethically sufficient to medically intervene. Firstly, I am unconvinced of the practical difference between presumed consent and the test of the best interests, which I shall illustrate with an example. Imagine an unconscious patient is brought into the emergency room in a serious condition. The doctors simply don't have time to check the religious beliefs or nearest family members, so they presume consent that they may conduct surgery to save his life. If they had to remove a limb to save the life, then consent may be presumed because for most people, continued autonomous existence is a valuable thing, and most people would hypothetically consent to it if they needed it. 

In the same scenario, the doctors think that it is in the patient's best interests to medically intervene and that is what makes their actions right. I believe the supposed difference comes from the fact that the best interests are objectively that which save the patient, whereas with presumed consent, the doctors act on the assumption that the patient {\it would} accept the intervention. I find very little difference between the two in Harris's justification. Even with the best interest’s test, assumptions are made about the unconscious patient's best interests. According to autonomy, the rational choice about our sense of self and identity is linked to the independent decisions that we make (Harris, 2003, p.10) which includes our definition of the good life and, by extension, that which is in our best interests. Therefore, there is a certain level of assumption of best interests which is not too dissimilar to the assumption of presumed consent. This is because they align in this case: we would consent to that which is in our best interests. This challenges Harris's rejection of presumed consent in favour of the best interests, while showing that they are not that different. 

In defence of presumed consent, Raposo says that “the doctor must treat the patient as if he has given necessary consent, since this is the most reliable option from an objective perspective'' (2012, p.381). Since Harris also claims of the value welfare as “provid[ing] the conditions in which autonomy can flourish'' (Harris, 2003, p.11), it is not unreasonable to say that presumed consent matches what most patients would say if they were able to give full consent. They would accept the treatment if it will preserve life and allow for continued autonomous existence and to end life if the prognosis looks too bleak. This seems to me the outcome that would be correct the most amount of times and demonstrates the value of presumed consent.

Harris, J. 2003. Consent and end of life decisions. Journal of Medical Ethics. 29, pp.10-15

O'Neill, O. 2003. Some limits of informed consent. Journal of Medical Ethics. 29, pp.4-7

Raposo, V.L. 2012. To Act or Not to Act, That is the Question: Informed Consent in a Criminal Perspective. European Journal of Health Law. 19(4), pp.379-390


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