In the article “The Concept of Informed Consent,” Faden and Beauchamp discuss two ways of understanding informed consent: informed consent as autonomous authorization and informed consent as effective consent. The first sense of informed consent would require that a specific patient actively agree to a given procedure; to simply acquiesce — the way someone might acquiesce to punishment that she does not desire — is not sufficient. Instead, the patient must autonomously authorize the procedure 1) knowing the nature of the procedure, 2) not being controlled in her decision making, 3) intending to undertake the specific procedure, and 4) saying “yes” explicitly. This idea of informed consent would seem to require some discernible mental event in the patient; its identification might be very fact specific. Faden and Beauchamp distinguish this type of informed consent from that of “shared decision making” because informed consent does not require that the patient participate in the identification of possible treatments. It simply requires a clear and autonomous decision to go forward with one of the treatments presented by the doctor.
The second sense of informed consent is as effective consent; this means that the physician has accorded with procedures that satisfy the rules in a particular medical context. Here the doctor must satisfy disclosure and competency rules. He must, for instance, tell the patient what the procedure is and the possible outcomes that might result. He must also make sure that the patient is of age and mentally competent. However, there doesn’t necessarily need to be some autonomous mental event within the patient in order for the doctor to proceed. Faden and Beauchamp find the second option less satisfying philosophically because, instead of getting at whether informed consent truly took place, it simply provides a framework by which to make inferences about possible consent. It gives circumstances that often go along with consent rather than necessarily identifying it in a given case. I agree that Faden and Beauchamp’s first sense is more philosophically compelling because it requires the showing of autonomous consent under particular circumstances. On the other hand, the second theory might be a more efficient legal test, because it doesn’t require as much scrutiny about the patient’s state of mind (which is difficult to identify) and instead gives certain observable criteria — such as age, mental capacity, or sobriety — that can stand in for autonomy, understanding, and intentionality.