Stoljar challenges the mainstream bioethical view that informed consent is both necessary and sufficient for patient autonomy. This is because according to Stoljar, informed
consent simply fails to guarantee patient autonomy once we understand autonomy relationally (as we should). By appealing to the general conditions for relational autonomy described above, Stoljar gives two arguments against the idea that informed consent is sufficient for securing patient autonomy. The first argument concerns the conceptual incompatibility of informed consent and relational autonomy, and the second has to do with the particular demands of relational autonomy. Each of these arguments is intended to show that informed consent cannot be a mechanism for promoting autonomy, where autonomy is understood relationally. To be clear, her claim is not that we should do away with the legal requirement for informed consent, but rather that the moral requirement for informed consent cannot be grounded in the promotion of patient autonomy.
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As with the standard theory of autonomy, not all relational autonomy theorists agree on exactly how social contexts influence the development and exercise of autonomy.
Stoljar’s first argument begins with the assertion that informed consent and relational autonomy are fundamentally different types of concepts. The former, she maintains, is an opportunity concept, while the latter is an exercise concept. She uses this
opportunity/exercise concept distinction that Taylor (1985) uses to describe the
differences between negative and positive liberty. In his work, Taylor construes negative freedom as an opportunity concept and contrasts it with positive freedom, which he characterizes as an exercise concept. Taylor maintains that having negative freedom (that is, being without external impediments) “is a matter of what we can do, of what is open to us to do, whether or not we do anything to exercise these options” (Taylor, in Stoljar, 2011, p. 381). In this way, it is an opportunity concept. By contrast, positive freedom is an exercise concept: it involves a degree of self-realization or the engagement of our will when exercising autonomy. The willing of a particular course of action is what separates negative and positive freedom. Positive freedom is a matter of what we do, whereas negative freedom is a matter of what we can do. Negative freedom understood as the opportunity for action, which is free from external impediments, is qualitatively different from positive freedom, understood as an agent’s ability to exercise her authentic choices.
According to Stoljar, informed consent is qualitatively different from relational autonomy because the former merely opens up a space for action, while the latter requires that agents act in a certain way, namely, with a degree of self-realization. As Stoljar
understands it, informed consent involves only “the weighing up of medical evidence that is presented” and ignores the factors or oppressive social conditions that can have an impact on decision-making (Stoljar, 2011, p. 382). Stoljar maintains that “informed consent as an opportunity concept is inadequate to ensure that agents exercise their preference formation with the required subject-referring attitudes” (Ibid). Stoljar’s point here, I believe, is that the appropriate self-referring attitudes are prerequisites for the activity of self-realization. The opportunity to choose a medical treatment from a number of options (as characterized by informed consent) does not recognize the fact that
oppressive social contexts can damage self-referring attitudes, such as self-trust or self- worth. Without the appropriate self-referring attitudes, patients cannot engage in the
activity of self-realization and thereby exercise their authentic choices. Since informed consent does not recognize or promote the importance of these self-referring attitudes, informed consent fails to guarantee the exercise of autonomy.
Stoljar’s second argument concerns the failure of the informed consent process to ensure that patients exercise normative competency when making their decisions. According to Stoljar, informed consent does not require agents to exercise strong evaluation of their desires. Rather, it only requires that patients exercise a weak evaluation (Ibid) and merely identify their strongest preference. She maintains that requesting an agent’s informed consent will not “encourage her to make a qualitative assessment of the internalized value or to imagine other options so that she can properly evaluate whether the internalized value is a relevant consideration in this case” (Ibid). By this, Stoljar means that informed consent will not require an agent to normatively evaluate the personal values that one refers to when making decisions. Informed consent normally requires that patients weigh the costs and benefits of certain medical procedures and decide the course of treatment based on how the medical options satisfy their strongest preferences. Since informed choice allows a patient to choose without strongly evaluating whether their preferences or desires are valuable or worth having, Stoljar maintains that informed consent cannot guarantee that patients will choose autonomously.
An obvious objection to Stoljar’s criticism of the standard informed consent process is that there is little way for physicians to guarantee that patients will engage in the
normative critical assessment required. In addition, a patient may reflect on their desires but fail to drop those (deformed) desires that contribute to her own oppression within patriarchy. Normative evaluation can be especially difficult for patients because desires which stem from oppressive socialization can be, or appear to be, deep and natural desires. A charitable interpretation of Stoljar does not take her to be requiring that physicians guarantee patients perform the required evaluation, rather that they be able to recognize and promote normative evaluations of desires, especially when those desires conform to oppressive socialization. Nor does Stoljar require that patients reject all
desires that cohere with oppressive socialization. Stoljar’s claim, as I understand it, is not that agents need to decide against the terms of their oppression, but rather that they need to be critical of their desires, considering oppressive social contexts. However, as it stands, the process of informed consent (and the standard non-relational account of autonomy) does not require that patients evaluate the worth of their desires and values. Ultimately, Stoljar claims that informed consent does not ensure that patients make autonomous decisions either to accept or forgo medical treatment (Stoljar, 2011, p. 382).
From the above arguments, Stoljar concludes that informed consent should not be
grounded in the principle of respect for patient autonomy. Stoljar’s arguments concerning informed consent draw attention to some serious feminist concerns regarding the impact of oppressive socialization on some patients’ choices. I agree with Stoljar that, at present, the informed consent process fails to identify or challenge the impact of oppressive socialization on patient autonomy. Where we disagree, however, is about whether the appropriate response to this problem is to sever the relationship between autonomy and informed consent or, instead, to re-conceptualize informed consent in a way that better reflects our commitments of relational autonomy. While Stoljar thinks that we are forced to concede that informed consent cannot be grounded in autonomy, I suggest that
informed consent should be re-conceptualized. Before I respond to Stoljar’s argument and outline a model of informed choice, I present two real-life oncofertility cases. I shall use these cases to illustrate how oppressive social norms, such as pronatalism and
biologism, might impede autonomy in the FP decision-making context. I will later return to these case studies to show how an ethical process of informed choice is useful for promoting patient (relational) autonomy.