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Consent at Issue

May 3, 2009

Consent: 1.) give permission: to give formal permission for something to happen. 2.) Giving assent or approval. Consent implies a reasoned response to a proposal and is necessary to any type of agreement. Submission to the will of another where further protest or discussion is useless, such as in the case of threats, force, or violence, does not constitute consent.
Encarta ® World English Dictionary © & (P) 1998-2005 Microsoft Corporation. All rights reserved.

We are going to take a look at the legal and moral idea of consent.  Where we find the application of consent most often is in medicine.  There the idea is to provide patients with as much information as possible in order for them to make an informed decision - informed consent.  All fifty U.S. states have detailed informed consent laws. 

“Informed consent stems from the legal and ethical right an individual has to decide what is done to his or her body, and from the physician's ethical duty to make sure that individuals are involved in decisions about their own health care. The process of securing informed consent has three phases, all of which involve information exchange between doctor and patient and are part of patient education.” 1)

During the Nuremberg Trials in 1949, ten standards were established to quantify a finding of  physician experimentation on human subjects.  Considered to be war crimes, the Doctors Trial identified types of experiments performed on human beings held captive in concentration camps.  These experiments included High-Altitude Experiments,  Sterilization Experiments, Spotted Fever (Fleckfieber) Experiments, Freezing Experiments, Malaria Experiments, Mustard Gas Experiments, and others.   It is theorized that a result of these trials was the establishment of the modern concept of a human right to informed consent.  Medical tampering or intervention without benefit of a patient’s informed consent -  is considered an unlawful act.

However, the idea of consent goes beyond medicine.  Today it must be a part of any process by which a lay person is drafted into a program, group or organized endeavor.  Consent is required to enter the armed services, employment contracts, areas where emotional or bodily harm might result, sexual contact, and even to fly in aircraft.  What this body of law establishes is a broad demand in everyday life that individuals be made aware of the potential hazards in their actions.  In recognizing a woman’s right to offer or withhold consent to physical or sexual contact - we have established a legal protection against the use of force or coercion.  This is a standard set higher than other requirements of consent like risk-related work or medical procedures.  As a result the expanding requirement for consent in a broad arena of human behavior is a positive evolution in social consciousness. 

But we are engaged now in segments of society in which we are willfully discarding the concept of consent in fear of crime, terrorism and attack.  The more a society accepts the notion that they are endangered by external threats, the more individual rights and liberties they will give up.  Where once there was a reasonable expectation that a woman could change her clothes in a department store dressing room in privacy - there is no such expectation today.  The initial reason was theft protection, but now the reason includes anti-terrorism.  Just as there is a rapidly expanding network of municipal “traffic” cameras being installed in every city in every country of the world.  These cameras routinely observe the daily activities of the public and can be routed into any number of government departments and agencies.  On the one hand these networks provide a strong deterrent to street crime and perhaps better traffic routing.  On the other hand they open the gateway to unfettered intrusion into personal life.  

In the United States personal life is protected by the Fourth Amendment to the Constitution.  The Amendment states that each person has a right to privacy that prevents government from intrusion into an individual’s home, personal or public life.  While established law prevents police from unreasonable search and seizure in physical terms - there are few restrictions against wholesale search of people in public thoroughfares.  Each time you walk down a city street you can expect that your face is being photographed and analyzed by any number of anti-crime, anti-terrorism organizations.  Have you consented to these high tech searches?  Has the searching agency demonstrated a probable cause to search your face and body, digitally? Cybernetically?  Photographically? 

There are many issues surrounding the idea of consent and informed consent.  Going forward into a more globalized world where cultures clash and suspicions rise - we need to balance our desire to defend ourselves from real enemies, with our need for privacy, liberty, and expectation of consent.  The underlying principal in consent is information.  Giving individuals information necessary to make decisions is the foundation of the concept.  As we are now in the “information age” it is only appropriate for people to expect to be informed in enough detail for them to make reasonable and productive decisions.  Consent, like privacy, speech, habeas corpus, is an inalienable right implicit in the affairs of all human beings.  The Nuremberg Trials taught us that willful, knowing experimentation on human beings without their consent is a crime against humanity.  Today’s hospitals take great effort to inform their patients of the dangers and probabilities of medical procedures.  Indeed,  in common law we have moved toward a better standard of expectation of consent than ever before. 

But dangers await.  The suspension of individual liberty and consent lies buried in the vast expansion of the anti-terrorist state.  It is imperative to demand that any curtailment of liberty demonstrate on a daily basis the need to do so.  We must hold our law enforcement and security agencies to a very high standard of “probable cause” for actions of search and seizure expanded by digital technology.  Each and every human being has the right to expect to be informed in detail of the outcome of actions requiring consent.  And any process or program that endangers a person without benefit of informed, express consent must be found unlawful in national and international courts of law.

1) Gale Encyclopedia of Surgery, published by Thomson Gale