Abstract
Recently Jason Hanna has argued that a particular type of susceptibility to framing effects—namely, the tendency to reverse one’s choice between certain logically equivalent frames—invalidates actual tokens of consent. Here I argue that this claim is false: proneness to choice-reversal per se between the relevant types of frames does not invalidate consent.
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Notes
Studies like this have been replicated dozens of times, across a variety of different choice situations. Indeed framing effects are perhaps the single most well-established conclusion of the ‘heuristics and biases’ tradition in cognitive psychology and behavioral economics. For typologies and overviews of the empirical literature on framing effects see Levin et al. 1998 and Keren 2011.
Below I take up what counts as ‘equally informative frames.’ Hanna calls the view of consent here—on which consent waives rights and makes otherwise wrong acts permissible—the ‘proprietary gate’ model. I assume the proprietary gate model throughout. See in particular Feinberg 1986 and Thomson 1990 (chapters 13 and 14).
All of which Hanna himself endorses in the course of his argument.
Hanna appears to claim that consenting to an act beneath an adequate or ‘morally relevant’ act description is both necessary and sufficient for giving valid consent. This, however, seems false. I agree that (typically, at least) acts must be adequately described for consent to waive rights. But this is not sufficient, since there is more that can render consent ineffective than a faulty description of the act. Someone might be coerced or manipulated into consenting to the act, in a way that renders consent invalid, even if the act is described appropriately.
Perhaps most prominently, Ronald Dworkin and Judith Thomson both argue that facts about hypothetical consent and dissent act merely as heuristic devices to reveal an independently justified position or claim. See Dworkin 1975: 17–18; and Thomson 1990:187–188. For defense of the idea that hypothetical consent at least sometimes has intrinsic moral weight see Stark 2000 and Kuflik 2010.
This comes through in Hanna’s endorsement of “the following informed consent principle: a subject’s consent to an act is insufficiently informed if he is disposed to dissent … under a more informative act description.” Hanna then goes on to say: “This principle obviously explains why JW’s consent is invalid … Notice that if the informed consent principle is correct, the disposition to dissent does matter, insofar as it shows that the subject’s actual consent is insufficiently informed” (Hanna 2011: 524; my emphasis).
These two interpretations of ‘insufficiently informed’ are related but distinct. Someone who is insufficiently informed in the first sense (because the act is not described adequately) will typically be insufficiently informed in the second sense (by failing to understand everything they must in order to give valid consent). But not always. Someone could fail to be informed in the first sense but not the second if they already have knowledge of the information that is withheld. Likewise, those who lack the subjective understanding needed to give valid consent will often suffer this lack because the act is not described adequately. But this is, again, not always or necessarily so. It is possible for failures of understanding to occur in the person from whom consent is sought even if the act is described adequately.
Hanna seems to recognize that some logically equivalent frames may not be equally informative (Hanna 2011: 521, footnote 12).
The possibility of asymmetries in subjective understanding between the Survival and Mortality Frames also casts doubt on Hanna’s claim that these frames are both adequate for securing valid consent. If it turns out (for example) that negatively-valenced frames consistently lead to subtle glitches in subjective understanding, or less robust understanding than positively-valenced frames, and if the person seeking consent know this, then (arguably at least) negatively-valenced frames (such as the Mortality Frame) may not by themselves be adequate for describing the act.
I am grateful to an anonymous referee for encouraging me to press this point.
I am especially grateful to Frank Miller, Alan Wertheimer, and Rebecca Johnson for extremely helpful comments on multiple earlier drafts. I am also grateful to Sean Aas, Doug MacKay, Joe Millum, John Phillips, Tina Rulli, Daniel Sharp, and Dave Wendler for helpful feedback and discussion along the way.
References
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Feinberg J (1986) Harm to self. moral limits of the criminal law, 3rd edn. Oxford UP, New York
Hanna J (2011) Consent and the problem of framing effects. Ethic Theor Moral Pract 14:517–531
Keren G (2011) On the definition and possible underpinnings of framing effects: a brief review and critical evaluation. In: Keren G (ed) Perspectives on framing. Psychology Press, New York
Kuflik A (2010) Hypothetical consent. In: Miller FG, Wertheimer A (eds) The ethics of consent. Oxford UP, New York
Levin IP, Schneider SL, Gaeth GJ (1998) All frames are not created equal: a typology and critical analysis of framing effects. Organ Behav Hum Decis Process 76:149–188
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Thomson JJ (1990) The realm of rights. Harvard UP, Cambridge
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Gelinas, L. Frames, Choice-Reversal, and Consent. Ethic Theory Moral Prac 18, 1049–1057 (2015). https://doi.org/10.1007/s10677-015-9581-9
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DOI: https://doi.org/10.1007/s10677-015-9581-9