A Defense of Subsequent Consent

Abstract

Prior consent is morally transformative; it has moral magic. In other words, whether an intervention is morally permissible sometimes depends on whether it was consented to beforehand. On this everyone agrees. However, from this assumption I argue it follows that subsequent consent—the kind that occurs after the intervention for which it is consent—can be morally transformative as well. This is important because if subsequent consent is merely a natural extension of prior (and concurrent) consent, then it could justify many interventions which cannot appeal to prior (or concurrent) consent, for example clinical research in emergency settings, and which would therefore otherwise have to appeal to potentially less reputable sources for their justification, such as paternalism or counterfactual consent—what a subject would have consented to in some relevant counterfactual situation. Gerald Dworkin was the first to suggest that subsequent consent might be efficacious, but his comments on the subject were quite condensed, and he never followed up on his brief suggestion, which was also unnecessarily restricted to parental paternalism toward their children: