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Communicating consent.

Rethinking Informed Consent in Bioethics. By Neil C. Manson and Onora O'Neill. Cambridge University Press, 2007. 226 pages. $34.99. Paperback.

It is by now a platitude that informed consent is one of the most central and discussed concepts in bioethics. In Rethinking Informed Consent in Bioethics, Neil Manson and Onora O'Neill argue that the notion of informed consent has been fundamentally distorted and in various ways overemphasized in bioethical discourse and in medical practice. Drawing on George Lakoff and Mark Johnson's discussion of structuring metaphors, they argue that bioethicists have understood the informed consent process as a kind of abstract transfer of "containers" of information along "conduits" that run between doctors and patients. In contrast, they draw upon pragmatic speech act theory in the philosophy of language to develop an account of informed consent as a communicative transaction: a concrete, norm-bound social transaction by way of speech acts.

To take this view of language is to understand communication as being something that agents perform. In contrast, they write, "much contemporary discussion of information, including discussion of informed consent, manifests a 'drift from agency'. Information is viewed as detachable from the action by which the communication is achieved and from the norms that govern action" (p. 49). One of their main points is that, like all communicative transactions, informed consent transactions presuppose and can only be successful against the background of a whole web of implicit and explicit norms: "Unless speakers and audiences adhere to certain mutually accepted epistemic and ethical norms, and take one another to adhere to these norms, communication cannot succeed ... This rich normative context ... is occluded or downplayed when we think of communication merely as the transmission or flow of information from person to person" (p. 42).

In order to understand the heart of the theoretical shift that Manson and O'Neill propose, it may help to look at a classic philosophers' example of how speech acts are performances situated within webs of norms, and so dependent for their success on these norms being in place. (The book is frustratingly free of such examples.) Many such stock examples come from J.L. Austin's seminal work from 1962, How to Do Things with Words. For instance, consider the act of pronouncing two people married ("By the power vested in me by the state of Florida, I now pronounce you husband and wife.") First, notice that this speech act does not merely disclose information; rather, it accomplishes what it pronounces, making the couple married rather than just reporting on the marriage. We have to understand this statement as something an agent does, rather than as an abstract container of information. Next, notice that this pronouncement does not count as an act of marrying at all except in the proper context. The speech act must take place during a ritualized marriage ceremony, and the people there must understand themselves to be part of it. The speaker must have officially sanctioned authority in order for her pronouncement to have, as Austin would put it, its performative force. Also, the people getting married must meet certain requirements--for example, in Florida, they must be of the opposite sex. And so forth. Merely shouting this sentence at people as you run down the street does not marry them. The heart of Manson and O'Neill's proposal is that the speech acts involved in informing and consenting, like pronouncements and vows in marriage ceremonies, accomplish a social transaction and do not just transfer information. Accordingly, like marriage pronouncements, they are effective and comprehensible only when situated within an appropriate web of norms and practices.

Taking this pragmatic perspective, Manson and O'Neill ask just what informed consent transactions accomplish. Their theory is that these transactions should properly be understood not as hallmarks of decisional autonomy, but rather as waiving prohibitions and obligations that are already in place and form part of the normative background, such as prohibitions against invading another person's body or using her private information. This proposal leads them to at least three key conclusions. First, informed consent deserves a demoted role in medical practice, as it is needed only when otherwise-established norms must be overridden. Second, "since its use always presupposes whichever norms are to be waived, it cannot be basic to ethics, or to bioethics" (p. 149). Third, written consent forms containing information about risks and benefits are only tenuously connected at best to the actual informed consent process since they are detached from any concrete communicative transaction. (Throughout the book, Manson and O'Neill presuppose that only direct oral encounters count as agential communication, despite the fact that giving someone a written document is itself a concrete, agential act, and often a communicative one. Particularly in the age of the Internet, this privileging of oral over written communication seems problematic to me.)

In later chapters, Manson and O'Neill apply their account of informed consent and their critique of the conduit/container metaphor to ethical questions concerning privacy and confidentiality in general, and the use of genetic information in particular. In keeping with their emphasis on pragmatic transactions as opposed to informational content, they suggest that our privacy regulations should focus on preventing communicative acts that are invasive, intrusive, and harmful, rather than on erecting barriers around certain types of private content. They argue convincingly against "genetic exceptionalism"--portraying genetic information as ethically special and in need of distinctive protection. Near the end, they include a fairly abstract chapter on the nature of trust and accountability in which they argue that medical practitioners and institutions must be not just trustworthy but actually trusted. This excellent discussion relies heavily on O'Neill's previous independent work on trust and fits uneasily with the rest of the book. A final chapter proposes revisions in how we negotiate informed consent in practice.

Readers may find this book frustrating for two reasons. First, their proposals for how informed consent should be managed in practice are overwhelmingly negative. The authors criticize our reliance on written consent forms and our emphasis on content over communicative transactions yet offer little in the way of positive, practical suggestions for how to do things better. They repeatedly insist that they want to "regulate specific types of communicative transactions" as opposed to regulating content (p. 122), but they never explain how to design policies that apply to categories of communicative transaction. What language would such policies use to identify these categories? And by what standards should we judge various transactions acceptable or unacceptable?

A second reason for frustration is that their discussion does not respond to bioethical literature on kindred topics. Many bioethicists have criticized the idea that informing is a transparent process of transferring information to patients. Many have also pointed out that informing is always partial, and that its context matters to its success. Paul Appelbaum and his colleagues' work on therapeutic misconception is one good example, as is work by Susan Sherwin, Carolyn McLeod, and others who have sought to develop a relational, transactional model of autonomy in bioethics. Yet Manson and O'Neill do not engage any of this literature and take little care to identify their interlocutors. They often seem to be doing battle with a straw monolithic tradition made up of unnamed bioethicists who have not yet questioned the "ideal of 'fully explicit' consent" and still "assume that what is disclosed will be intelligible and relevant to the audience."

Nonetheless, the heart of Manson and O'Neill's project--that is, focusing on the pragmatic structure of the speech acts that make up informed consent transactions--is exciting and philosophically rich. I think they are clearly right that we cannot understand informed consent and its ethical place in medicine until we take seriously its character as a discursive practice embedded in and enabled by complex social norms. Indeed, I would advocate pushing substantially farther than they do in this direction. Although they argue for an emphasis on the pragmatic structure rather than the propositional content of informed consent transactions, they still display what seems to me a philosopher's weakness for understanding concrete transactions between agents in fundamentally propositional terms. Consent, on their model, is an attitude toward a proposition, and it is expressed in a propositional speech act. But we can ask for and offer consent through embodied interactions that do not translate into propositions in any easy way; consider the subtle ways in which we negotiate distance from one another as we converse, or settle on a proper level of affection (for instance, a hug or a handshake) when greeting an acquaintance. Is it realistic to think that such embodied negotiations are proxies for propositional attitudes? Manson and O'Neill rightly emphasize that explicit consent relies, for its performative success, on a background of implicit rules and understandings about appropriate and inappropriate interaction to which we have already consented. But it is implausible that this implicit background web of consent--to norms of conversation, touching, respect for various kinds of authority, etc.--is or even could be made up entirely of more speech acts (or speech-act-like thoughts). Much of the transactional practice of consent is bodily and prediscursive. Likewise, they assert that "trust is primarily given or refused to others' speech acts" (p. 160), but this strikes me as a philosophers' fancy. As we move through our day, we trust others not to assault us as we walk down the street; we trust the bus driver to drive the planned route; we trust the cook in the restaurant not to poison us. None of this has much to do with trusting or not trusting someone's speech acts or propositional claims.

The reason this is important is that a rich pragmatic analysis of the norms and practices that make informed consent possible will have to attend to all of these material, nondiscursive conditions and negotiations; speech-act theory will not be enough. Consider, for instance, a patient, Janet, who is giving informed consent to her doctor, Sarah, to have a biopsy of a lump in her breast. Sarah will talk to her about risks and benefits of the procedure, its protocol, and what the next steps might be given various outcomes. As Manson and O'Neill would point out, only a small subset of the risks, benefits, and aspects of the procedure will be explicitly discussed and agreed upon. The consent transaction presumes a background of understandings and agreements not made explicit: that the surgical tools will be sterile, that Janet will let someone touch her breast (and also how and under what circumstances this touching is acceptable), that the doctor's medical license is up to date, and so forth. Many of these understandings and agreements will be--or will already have been--negotiated at a bodily, nonpropositional level. Furthermore, the consent transaction will be successful only if it is situated in the right way within a concrete social context: Whatever speech acts are uttered by Janet and Sarah, the transaction does not count as Janet giving informed consent if Sarah is not Janet's doctor, or if Janet and Sarah understand themselves to be having a hypothetical rather than a binding conversation. The setting and the rituals of the clinic--including, perhaps, the ritual of signing a consent form--are not merely the scene where the consent transaction occurs; rather, they are essential to giving the transaction the pragmatic form that it has, and hence enabling it to be a consent transaction in the first place, just as the rituals of the marriage ceremony make the officiator's speech act a genuine pronouncement of marriage.

Once we broaden our attention from propositional speech acts to the larger material, embodied context in which consent occurs (or fails to occur), another crucial feature of consent is thrown into relief: the only context in which informed consent can occur is one that is "home turf" for one party to the transaction (the doctor) and not to the other. The institutional and material setting of the clinic affords special social and cognitive authority to the doctor. In the context of the clinic, even a patient who has plenty of authority in other social arenas is inherently at the doctor's mercy in various ways. For instance, the terms of the transaction are for the most part set by the doctor, while the patient can opt in or out. This, after all, is why we generally focus on patients' informed consent, which implies acquiescence to a plan proposed by someone else, rather than on informed decision-making or informed action. (This asymmetrical relationship is also evident in the common practice of using "consent" as an active verb in medical contexts--as in, "Have you consented the patient yet?") Furthermore, a doctor's offer of an intervention makes something possible for the patient that would not otherwise be possible, and the doctor fundamentally controls the conditions and shape of that possibility; the offer does not merely communicate a preexisting option.

This type of asymmetry is not something that should be criticized, in and of itself; rather, it is built into the institution of professional medicine. However, we need to remember that the process of obtaining informed consent is not just a communicative transaction, but a transaction shaped by relations of authority and control, even when it goes well. A narrow focus on propositional speech acts will not reveal this type of structure or its role in conditioning the communication.

One reason this matters is that it makes sense out of some of our emphasis on written and signed documents in the domain of informed consent. Transactions in the medical context are often complicated and risky for both doctors and patients alike, fraught with potential for coercion, manipulation, misplaced blame, unrealistic expectations, disrespect, silencing, compromises of agency, and so forth. Given the power asymmetries involved, it is not surprising that we have developed institutional and legal protections for both parties. Manson and O'Neill question the importance of signed informed consent forms, dismissing them as mere legal formalities; they point out, rightly, that offering and signing a form does not in and of itself constitute anything like the relevant kind of communicative transaction. However, we cannot understand the communicative transaction or its quality apart from its asymmetrical power dynamic, and how that dynamic is concretely negotiated. The existence of a document offering such legal protection can change what a doctor is willing to say and do, as well as how the patient hears and assesses what he is told. A patient who has signed such a document may feel differently about his choice and his role in his treatment plan. While signing an informed consent form is by no means sufficient to ensure that successful communication has occurred or that either party is protected from coercion, exploitation, or misplaced culpability, the ritual of signing the form and the availability of this form later can play a crucial role in appropriately managing power relations between doctor and patient. The legal protections offered and legal responsibilities imputed by the ritual of signing are not somehow separable from the full pragmatic, ethical context in which the transaction occurs.

Manson and O'Neill, in contrast, dismiss legal considerations as irrelevant to understanding the ethical character of informed consent, mostly by way of silence on the topic. Their one explicit mention of liability issues in the book reads as follows:
 The only parties who may be genuinely opposed to a retreat from the
 excessive formalisation of informed consent procedures and
 protocols may be those who value it as a source of evidence that
 protects them against liability for clinical or scientific
 malpractice. ... Signatures, let alone ticks in boxes, may have
 legal weight, but they lack ethical weight.... It is a further
 question--which we did not explore--whether routine and formalized
 indicators of consent should be taken as protection against
 liability. ... We must leave this question for another occasion"
 (p. 192).

Here, the presumption is apparently that the legal and the ethical are fully separable. But in not questioning this easy division, Manson and O'Neill betray their own purported pragmatism. The legal context is just one more important dimension of the total normative context that gives pragmatic shape and ethical meaning to a particular informed consent transaction.
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Title Annotation:Rethinking Informed Consent in Bioethics
Author:Kukla, Rebecca
Publication:The Hastings Center Report
Article Type:Book review
Date:May 1, 2009
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