John Rawls' 'A Theory of Justice'

Philosophy

Some people are multi-billionaires; others die because they are too poor to afford food or medications. In many countries, people are denied rights to free speech, to participate in political life, or to pursue a career, because of their gender, religion, race or other factors, while their fellow citizens enjoy these rights. In many societies, what best predicts your future income, or whether you will attend college, is your parentsâ income.

          To many, these facts seem unjust. Others disagree: even if these facts are regrettable, they arenât issues of justice. A successful theory of justice must explain why clear injustices are unjust and help us resolve current disputes.

          John Rawls (1921-2002) was a Harvard philosopher best known for his A Theory of Justice (1971), which attempted to define a just society. Nearly every contemporary scholarly discussion of justice references A Theory of Justice. This essay reviews its main themes.

https://1000wordphilosophy.com/2018/07/27/johnrawls-a-theory-of-justice/ John Rawls' 'A Theory of Justice' Author: Ben Davies Category: Social and Political, Ethics Word Count: 999 Some people are multi-billionaires; others die because they are too poor to afford food or medications. In many countries, people are denied rights to free speech, to participate in political life, or to pursue a career, because of their gender, religion, race or other factors, while their fellow citizens enjoy these rights. In many societies, what best predicts your future income, or whether you will attend college, is your parents' income. To many, these facts seem unjust. Others disagree: even if these facts are regrettable, they aren't issues of justice.[1] A successful theory of justice must explain why clear injustices are unjust and help us resolve current disputes.[2] John Rawls (1921-2002) was a Harvard philosopher best known for his A Theory of Justice (1971), which attempted to define a just society. Nearly every contemporary scholarly discussion of justice references A Theory of Justice. This essay reviews its main themes.[3] 1. The 'Original Position' and 'Veil of Ignorance' Reasonable people often disagree about how to live, but we need to structure society in a way that reasonable members of that society can accept.[4] Citizens could try to collectively agree on basic rules. We needn't decide every detail: we might only worry about rules concerning major political and social institutions, like the legal system and economy, which form the 'basic structure' of society. A collective agreement on the basic structure of society is an attractive ideal. But some people are more powerful than others: some may be wealthier, or part of a social majority. If people can dominate negotiations because of qualities that are, as Rawls (72-75) puts it, morally arbitrary, that is wrong. People don't earn these advantages: they get them by luck. For anyone to use these unearned advantages to their own benefit is unfair, and the source of many injustices. This inspires Rawls' central claim that we should conceive of justice 'as fairness.' To identify fairness, Rawls (120) develops two important concepts: the original position and the veil of ignorance: The original position is a hypothetical situation: Rawls asks what social rules and institutions people would agree to, not in an actual discussion, but under fair conditions,[5] where nobody knows whether they are advantaged by luck. Fairness is achieved through the veil of ignorance, an imagined device where the people choosing the basic structure of society ('deliberators') have morally arbitrary features hidden from them: since they have no knowledge of these features, any decision they make can't be biased in their own favor. Deliberators aren't ignorant about everything though. They know they are self-interested, i.e., want as much as possible of what Rawls calls primary goods (things we want, no matter what our ideal life looks like). They are also motivated by a minimal 'sense of justice': they will abide by rules that seem fair, if others do too. They also know basic facts about science and human nature.[6] 2. Rawls's Principles of Justice Rawls thinks a just society will conform to rules that everyone would agree to in the original position. Since they are deliberating behind the veil of ignorance, people don't know their personal circumstances, or even their view of the good life. This affects the kinds of outcomes they will endorse: e.g., it would be irrational for deliberators to agree to a society where only Christians have property rights since if, when the veil is 'lifted,' they turn out not to be Christian, that will negatively affect their life prospects. Similarly, deliberators presumably won't choose a society with racist, sexist, or other unfairly discriminatory practices, since beyond the veil, they might end up on the wrong side of these policies.[7] This gives rise to Rawls' first principle of justice: all people have equal claims to as much freedom as is consistent with everyone else having the same level of freedom.[8] Rawls further claims that, because their ignorance includes an ignorance of probabilities, deliberators 2 would be extremely cautious, and apply what he calls a 'maximin' principle: they will aim to ensure that the worst possible position they could end up in is as good as possible in terms of primary goods. If we imagine ourselves as deliberators, we might be tempted by the idea of total equality in primary goods. This ensures, at least, that nobody will be better off than you for arbitrary reasons. However, some inequality might be useful: the possibility of earning more might incentivize people to work harder, growing the economy and so increasing the total amount of available wealth. This isn't a wholehearted endorsement of capitalism, as Rawls' second principle, which addresses social and economic inequalities, makes clear. The second principle has two parts: First, people in the original position will tolerate inequalities only if the jobs that pay more aren't assigned unfairly. This gives us the ideal of fair equality of opportunity: inequalities are allowed only if they arise through jobs that equally talented people have equal opportunity to get. This requires, for instance, that young people receive roughly equal educational opportunities; otherwise, a talented individual might be held back by a lack of basic knowledge, either about their own talents, or about the world. Second, since their reasoning is governed by the 'maximin' principle, deliberators will only tolerate inequalities that benefit the worst off:[9] since, as far as they know, they might be the worst off, this maximizes the quality of their worst possible outcome. This is called the difference principle. These principles are ordered, which tells us what to do if they clash: equal liberty is most important, then fair opportunity, and finally the difference principle. So, neither freedoms nor opportunity are governed by the difference principle.[10] 3. Conclusion We can now see how Rawls' theory might evaluate the issues raised earlier. At least within specific societies, each seems to violate his basic principles of justice, and so would be condemned as unjust. So, even if we ultimately reject Rawls' approach, it at least seems to offer intuitively correct answers in several important cases, and for plausible reasons. ' Notes [1] For instance, some think that if someone's money is fairly earned, it is not unjust that she does what she wants with it, such as spending it to increase her children's opportunities (e.g., Nozick, 1974; Narveson, 2001). Others will say that there are no genuine 'rights', and a society should permit or restrict various activities depending on what will promote the 'common good': this charge has been made with considerable force against utilitarianism, though it is not one that all utilitarians accept (see Glover (1990), Section 3). [2] Rawls' basic view has been importantly extended to several areas which he either did not explicitly comment on: e.g., Daniels' (2007) extension of the view to healthcare justice, and Rowlands' (1997) extension to animal rights; or in ways with which he would have himself explicitly disagreed: compare Beitz's (1979) 'Rawlsian' approach to global justice with Rawls' (1999a) own published views. [3] A Theory of Justice is a work of considerable length and detail, and this essay omits many elements of interest. For instance, this essay does not review Rawls' discussion of his intellectual debt to the work of Immanuel Kant, e.g., in his criticism of utilitarian theory as failing to respect the 'separateness of persons' (191), and his reliance on the idea of grounding justice in a contract that is understood not as an historical event, but as a theoretical constraint (see Kant, 1793). [4] A Theory of Justice focuses on 'domestic' justice, i.e., justice within a particular society. Rawls (1999a) addresses the distinct question of global or international justice. Rawls suggests that justice at the global level exists between peoples (groups bound by, e.g. a common culture, language, or history) not individuals, since there is no common global structure equivalent to the 'basic structure' of a society. While international justice is also developed by reference to a veil of ignorance, the deliberators are representatives of societies. As such, Rawls believes that their concerns would be very different, including a strong emphasis on respect for national sovereignty, with exceptions only in cases of severe human rights violations. In addition, so long as all peoples or nations have institutions that enable their members to live decent lives, any remaining inequality is not morally troubling. As outlined below, this is in stark contrast to his theory of domestic justice. 3 [5] Rawls' view is therefore a 'hypothetical contract' theory (i.e. it rests on what would be agreed under certain idealised assumptions), as opposed to the 'actual contract' view (e.g. Gauthier, 1986; Gilbert, 2006). [6] One further condition that deliberators know, which Rawls borrows from David Hume (1738: Book 3, Part 2, Section 2), is that they exist in a condition of 'moderate scarcity', which according to both authors is a 'circumstance' of justice. The basic idea is that justice is only necessary where there are potential conflicts (i.e., when we do not have an abundance of goods), but if there is not enough even to meet everyone's basic needs (i.e., 'extreme scarcity'), those who lose out cannot be expected to abide by the rules. So society – and with it our system of justice – will break down. [7] In fact, though, Rawls' is remarkably silent on racial injustice, and there has been considerable debate about whether his system of thought has the space to properly address such issues. See e.g., Mills (2009); Shelby (2013). Related critiques have also been made with respect to other forms of injustice, such as gender-related injustice (e.g. Okin, 1989) and injustice against people with disabilities (e.g. Sen (1980); Nussbaum (2006)). [8] This was later revised to a weaker requirement: that people have access to a "fully adequate" set of basic rights and liberties (2001: 42-3): these rights cannot be overridden by appeals to the common good. [9] However, the 'worst off' here are to be understood only in reference to "social and economic inequalities" (Rawls, 1999b: 53). Inequalities of 'natural' goods (which includes health) are not included because they are not things we can directly redistribute between people, unlike social goods such as money and opportunity. [10] However, there is some apparent inconsistency across Rawls' work here. Later (2001: 266), he seems to suggest that some inequalities of opportunity are inevitable, and that they must therefore be turned to the benefit of those with the least opportunity: this view looks remarkably like a difference principle for opportunity. References Daniels, Norman (2007), Just Health: Meeting Health Needs Fairly Cambridge University Press Gauthier, David (1986) Morals by Agreement Oxford University Press Gilbert, Margaret (2006) 'Reconsidering Actual Contract Theory' in A Theory of Political Obligation: Membership, Commitment, and the Bonds of Society. Oxford University Press. 215-238 Glover, Jonathan (1990) Utilitarianism and its Critics Macmillan Publishing Hume, David (1738) A Treatise of Human Nature Mills, Charles (2009) 'Rawls on Race/Race in Rawls' The Southern Journal of Philosophy (2009): 161-184 Moller Okin, Susan (1989) Justice, Gender and the Family New York: Basic Books Narveson, Jan (2001) The Libertarian Idea Broadview Press Nozick, Robert (1974) Anarchy, State and Utopia Wiley-Blackwell Nussbaum, Martha, (2006), Frontiers of Justice: Disability, Nationality, Species Membership, Cambridge: Harvard University Press. Rawls, John (1971) A Theory of Justice Cambridge, MA: Harvard University Press Rawls, John (1999a) The Law of Peoples Cambridge, MA: Harvard University Press Rawls, John (1999b) A Theory of Justice: Revised Edition Cambridge, MA: Harvard University Press Rawls, John (2001) Justice as Fairness: A Restatement Erin Kelly ed. Cambridge, MA: Harvard University Press Rowlands, Mark (1997) 'Contractarianism and Animal Rights' Journal of Applied Philosophy 14 (3):235–247 Shelby, Tommie (2013) 'Racial Realities and Corrective Justice: A Reply to Charles Mills' Critical Philosophy of Race 1(2): 145-162. Sen, Amartya, (1980), 'Equality of What?' in Tanner Lectures on Human Values, S. MacMurrin (ed.), Cambridge: Cambridge University Press. For Further Reading Beitz, Charles (1979) 'Bounded Morality: Justice and the State in World Politics' International Organization, 33: 405–424. 4 Harsanyi, John (1975) 'Can the Maximin Principle Serve as a Basis for Morality? A Critique of John Rawls' Theory' America Political Science Review 69(2): 594-606 Kant, Immanuel (1793) 'On the common saying: this may be true in theory but it does not apply in practice' in Kant's Political Writings (1970), edited by Hans Reiss, translated by H. B. Nisbet. Cambridge University Press (61-93) Rawls, John (2002) The Cambridge Companion to Rawls edited by Samuel Freeman. Cambridge: Cambridge University Press Rawls, John (2005) Political Liberalism: Expanded Edition Columbia University Press Sandel, Michael (1998) Liberalism and the Limits of Justice Cambridge: Cambridge University Press Sen, Amartya (1992) Inequality Reexamined Cambridge, MA: Harvard University Press Taylor, Charles (1985). 'The nature and scope of distributive justice' in Philosophy and the Human Sciences: Philosophical Papers 2 Cambridge: Cambridge University Press: 289-317 Wenar, Leif, (2017) 'John Rawls', The Stanford Encyclopedia of Philosophy (Spring 2017 Edition), Edward N. Zalta (ed.) Related Essays Moral Luck by Jonathan Spelman Introduction to Deontology: Kantian Ethics by Andrew Chapman About the Author Ben completed his PhD in Philosophy at King's College London in 2015. He is currently a Research Assistant in applied ethics at the University of Oxford's Uehiro Centre. He works mainly on moral and political issues in healthcare, as well as animal ethics, and why death is really bad. www.bendaviesphilosophy.com FOLLOW 1000-WORD PHILOSOPHY ON FACEBOOK, TWITTER AND SUBSCRIBE TO RECEIVE EMAIL NOTICE OF NEW ESSAYS AT THE BOTTOM OF 1000WORDPHILOSOPHY.COM


Philosophy

The current ethical and regulatory framework for research is often charged with burdening investigators and impeding socially valuable research. To address these concerns, a growing number of research ethicists argue that informed consent should be adapted to the risks of research participation. This would require less rigorous consent standards in low-risk research than in high-risk research. However, the current discussion is restricted to cases of research in which the risks of research participation are outweighed by the potential clinical benefits for the individual research participant. Furthermore, current proposals do not address the worry that risk-adapted informed consent may result in enrolling participants into research without their autonomous authorization. In this paper, we show how the standard view of informed consent â consent as autonomous authorization â can be adapted to risk even when the research does not have a favourable risk-benefit profile for the participant. Our argument has two important implications: first, it implies that current and proposed consent standards are not adequately calibrated to risk and, second, that consent standards also need to be adapted to factors other than risk.

PAPER Can informed consent to research be adapted to risk? Danielle Bromwich,1 Annette Rid2 1Department of Philosophy, University of Massuchessetts, Boston, USA 2Department of Social Science, Health & Medicine, King's College London, London, UK Correspondence to Dr Annette Rid, Department of Social Science, Health & Medicine, School of Social Science & Public Policy, King's College London, Strand, London WC2R 2LS, UK; firstname.lastname@example.com Received 3 November 2013 Revised 2 May 2014 Accepted 23 September 2014 To cite: Bromwich D, Rid A. J Med Ethics Published Online First: [please include Day Month Year] doi:10.1136/medethics2013-101912 ABSTRACT The current ethical and regulatory framework for research is often charged with burdening investigators and impeding socially valuable research. To address these concerns, a growing number of research ethicists argue that informed consent should be adapted to the risks of research participation. This would require less rigorous consent standards in low-risk research than in high-risk research. However, the current discussion is restricted to cases of research in which the risks of research participation are outweighed by the potential clinical benefits for the individual research participant. Furthermore, current proposals do not address the concern that risk-adapted informed consent may result in enrolling participants into research without their autonomous authorisation. In this paper, we show how the standard view of informed consent-consent as autonomous authorisation-can be adapted to risk even when the research does not have a favourable riskbenefit profile for the participant. Our argument has two important implications: first, it implies that current and proposed consent standards are not adequately calibrated to risk and, second, that consent standards also need to be adapted to factors other than risk. INTRODUCTION Biomedical research exposes participants to risks primarily for the benefit of others. It is widely held that this is ethically permissible only if competent participants have given valid informed consent and other ethical requirements for research are met.1 On the standard view, consent is valid when a competent adult receives relevant information about the study and adequately understands this information before voluntarily agreeing to enrolment.2–4 This view is enshrined in most research regulations and guidelines.1 5–8 On the standard view, investigators are responsible for ensuring that the conditions for valid consent-competence, disclosure, understanding and voluntariness-are met. For example, the Council for International Organisations of Medical Sciences Guidelines state that 'by informing the potential subjects...and by ensuring that each individual understands each procedure, investigators elicit their informed consent...'.5 But this view seems to place quite a burden on investigators. They need to ensure that information is disclosed in an understandable way and must also guarantee that enrolment decisions are based on a thorough understanding of that information and are free from coercion and undue influence. These standards can seem overly demanding in low-risk research that involves a low likelihood of experiencing physical, psychological or other harm (e.g. a single blood draw), or in research where the risks are thought to be outweighed by the potential clinical benefits for participants (e.g. a comparative effectiveness study of two established treatments with no other research procedures). To ease the burden, some research ethicists argue that the standards for obtaining informed consent should be adapted to the risk–benefit profile of the research. Gopal Sreenivasan contends that understanding a trial's risk-benefit ratio is not required when the risks of the study are outweighed by the potential clinical benefits for participants.9 Franklin Miller and Alan Wertheimer take this idea one step further, arguing that defective understanding does not invalidate consent to studies comparing clinically indicated treatments.10 Robert Truog and colleagues question the need to seek specific consent altogether in certain randomised controlled trials of licensed interventions,11 and others are currently extending this idea to comparative effectiveness research.12 Recent proposals for regulatory reform seem to embrace these ideas. For example, the European Clinical Research Infrastructures Network suggests disclosing no more than 'light information' in trials with marketed drugs that are used for a new indication.13 All this suggests that consent standards need not be as rigorous when the research has a favourable risk-benefit profile for the individual participant. However, current discussions are limited insofar as they only pertain to 'win-win' scenarios in which the research is expected to clinically benefit current participants as well as benefiting future patients. But more difficult questions arise about the permissibility of adapting consent to risk when a study offers participants no prospect of clinical benefit. Furthermore, adapting the standards for disclosure and understanding to risk might suggest that participants can be enrolled into research without their autonomous authorisation when the research is unlikely to pose serious harm to them.2 Some consequentialists may be unconcerned about this when studies are socially valuable. But a question naturally arises for deontologists: how can the plausible intuition that consent standards should be adapted to the level of risk posed by a study be reconciled with the impermissibility of enrolling participants into research without their autonomous authorisation? Some commentators are sceptical that the two can be brought together. For example, Miller and Wertheimer have recently argued that the standard Bromwich D, et al. J Med Ethics 2014;0:1–8. doi:10.1136/medethics-2013-101912 1 Research ethics JME Online First, published on October 28, 2014 as 10.1136/medethics-2013-101912 Copyright Article author (or their employer) 2014. Produced by BMJ Publishing Group Ltd under licence. group.bmj.com on February 18, 2015 Published by http://jme.bmj.com/Downloaded from view of informed consent as autonomous authorisation does not have the conceptual resources to be adapted to risk.10 If correct, their argument implies that current regulations and guidelines, as well as recent proposals for regulatory reform, rest on shaky normative ground. It also suggests that any attempt to promote risk-adapted consent inherently conflicts with the standard view of informed consent. In this paper, we argue that the standard view of consent as autonomous authorisation can be reconciled with the plausible intuition that requirements for the informed consent process should be adapted to the risks posed to participants. We assume the standard view of risk as the likelihood of experiencing harm, as well as standard frameworks for evaluating the risks of research interventions and studies; these frameworks require investigators, research ethics committees (REC) and others to evaluate the risks and potential benefits (if any) of individual research interventions before judging the aggregate level of risk posed by the study as a whole.14 15 We show that investigators can often discharge their duties in an abridged consent process when the risks of research participation are low, while a more rigorous consent process is required as the risks of the research increase. Importantly, our argument applies to studies whose risks are not, or not entirely, outweighed by the potential clinical benefits for the participant. Our argument also has important practical implications. It shows that current and proposed consent standards are not adequately calibrated to risk and, interestingly, that consent standards also need to be adapted to factors other than risk. THE PURPOSE OF INFORMED CONSENT Consider a simple natural history study that involves undergoing a single blood draw. When the risk of research participation is so low, why is it important to obtain valid informed consent? The answer is simple: because competent adults have autonomy rights. That is to say, they have the right to control certain aspects of their own lives, which includes the right to control what happens to their bodies. Their right to bodily control generates a duty on others not to control decisions about their bodies or trespass on them without their permission. This explanation is at the heart of the concept of informed consent that underlies the standard view found in most research regulations and guidelines: informed consent as autonomous authorisation.1 5–8 According to Ruth Faden and Tom Beauchamp, who have developed the most influential conception of this view, '...informed consent is rooted in concerns about protecting and enabling autonomous or self-determining choice by patients and subjects.' (ref. 2, p.235). Autonomy rights protect competent adults from unwanted interference and they also give them the opportunity to live their lives in accordance with their own interests, preferences and values. Competent adults have the power to exercise their autonomy rights and permit, among other things, bodily contact. By giving valid consent, they can permit acts that would otherwise be rights violations. For example, if an investigator draws a participant's blood without his valid consent, she violates his right to bodily control. But no such rights violation occurs if the participant gives valid consent to this procedure. Consent only has this morally transformative power if it is valid, and to be valid the competent person giving consent must do so voluntarily and in enough understanding of the act being consented to. This implies that a token of consent is invalid if it is proffered by a mentally incompetent individual, given in substantial ignorance or obtained as the result of coercion, deception or fraud. This standard view of informed consent should be familiar to most readers. But what often goes unnoticed is the connection between the disclosure requirement and the voluntariness (or non-control) requirement for valid informed consent. Even Beauchamp, the chief exponent of the standard view, claims that commentators have given too much emphasis to disclosure and not enough to voluntariness.16 Disclosure is important because of its relationship to control. Illegitimately controlling a participant's enrolment decision can render the resultant token of consent involuntary and thereby invalid. The most widely discussed forms of illegitimate control are coercion, intentional deception and manipulation. But there are subtler forms of control, and these relate to inappropriate disclosure. To see this, notice that in some contexts, the act being consented to is familiar enough to rescind the duty to inform the person giving consent. For example, if you ask your hairdresser to take a couple of inches off your ends, you convey enough understanding of what it means to get a haircut; she does not have to explain that procedure to you. The research context is different, however. Various facts about a given study might influence a potential participant's enrolment decision, but he cannot be expected to know these facts on his own. For example, the purpose of the study might make a difference to his decision, but he cannot know this until it is disclosed to him. When an investigator fails to appropriately disclose information that might influence a participant's enrolment decision, she (advertently or inadvertently) exercises control over his decision and thereby fails to respect his right not to be illegitimately controlled in the consent process.17 This illustrates that in addition to not coercing or unduly influencing potential participants, investigators have another duty not to exercise illegitimate control in the informed consent process: they must not withhold relevant information or disclose such information in an incomprehensible way.i RESPONSIBILITIES IN THE INFORMED CONSENT PROCESS When the purpose of informed consent is properly understood, it becomes clear that investigators' responsibilities in the informed consent process are not as burdensome as is often supposed. Additionally, potential participants have responsibilities if they want to make good decisions about study participation. Investigators' responsibilities Regardless of the risk level of the research, investigators have a duty not to illegitimately control a potential participant's enrolment decision. This implies that they must guard against the ways in which they can undermine or reduce the voluntariness of this decision. In addition to avoiding acts of coercion, deception and certain forms of manipulation, discharging this duty involves disclosing relevant information in an understandable way and in an appropriate situational context.17 Appropriate disclosure requires investigators to disclose all those facts that they know about the research, and have reason to believe would be relevant to the participant's enrolment decision. This should include 'known unknowns', e.g. the possibility of unknown side effects of an investigational drug, or uncertainty about its riskbenefit profile. Moreover, the manner in which information is iTo improve readability, we refer to investigators' responsibilities although nurses, study coordinators and others may be responsible for obtaining consent. We also recognise that duties in the informed consent process are shaped and shared by policy makers, RECs and others responsible for ensuring the ethical conduct of research. 2 Bromwich D, et al. J Med Ethics 2014;0:1–8. doi:10.1136/medethics-2013-101912 Research ethics group.bmj.com on February 18, 2015 Published by http://jme.bmj.com/Downloaded from disclosed is as important as the information itself. An investigator would exercise illegitimate control over a participant's enrolment decision if she disclosed information in a foreign language, or using complicated scientific terminology. Disclosure is, therefore, only appropriate if information is disclosed in a manner that gives a prospective participant a fair opportunity to understand. Finally, since investigators cannot know exactly what would influence an individual's enrolment decision, they must give potential participants the opportunity to ask questions and answer their questions honestly.17 However, discharging the duty not to illegitimately control a participant's enrolment decision does not require investigators to ensure that a potential participant understands everything that ought to be disclosed to him. Nor does it require investigators to ensure that the participant makes a decision that best protects his particular interests, preferences and values. After all, not ensuring that he has achieved this advanced level of understanding does not amount to exercising illegitimate control over his enrolment decision. At the same time, investigators have a duty not to accept a token of consent from a person who is substantially ignorant of what they are authorising or who lacks capacity. This implies that investigators must form a reasonable belief that a potential participant has capacity and has achieved the requisite level of understanding before accepting his consent.18 There are some uncertainties about exactly what participants need to understand for consent to be valid. Yet, according to the standard view of informed consent as autonomous authorisation, '[a]t minimum, persons understand only if they have acquired pertinent information and have relevant beliefs about the nature and consequences of their actions. Their understanding need not be complete, because a grasp of the material facts is generally sufficient...' (ref. 16, p.68). Unless there is evidence that a potential participant lacks decision-making capacity, investigators are justified in assuming his competence. That is, it is widely accepted that investigators do not need to test capacity unless there is reason for doubt. We believe that the same is-or should be-true when assessing the requirement of material understanding in the context of uncomplicated and low-risk research. To illustrate this point, consider the informed consent process for a natural history study that involves three blood draws with no prospect of clinical benefit. The investigator has a duty to inform potential participants in clear and simple language about the purpose of the study, the three blood draws and their associated risks, the collection of anonymised personal medical information and the absence of negative implications for their clinical care if they decide against enrolment. But if a potential participant agrees to enrol in the study, the investigator can take his token of consent as valid without testing his understanding. To test his understanding of what it means to have his blood drawn after this has been explained to him would be tantamount to testing his capacity to give consent. When a potential participant shows no signs of cognitive impairment and the material information about the study is easily comprehensible, an investigator is permitted to presume that the participant has achieved adequate understanding. Potential participants' responsibilities By virtue of having the right to control their own lives, competent adults are free to make poor decisions. Others should respect these decisions unless they are the products of illegitimate control or substantial ignorance.19–21 By implication, if a potential participant wants to make a good enrolment decision, he also has responsibilities in the informed consent process. As a prudential decision maker, a potential participant must ensure that he has all the necessary information to make a decision consistent with his interests, preferences and values. Investigators are responsible for tailoring the information disclosed to the informational needs of the person thinking about study enrolment. Since the investigator cannot know what facts will be dispositive for the given person, disclosure should include those facts that the study population usually finds relevant, in addition to any other facts that the investigator believes this particular person would find relevant. This information will suffice for most people, but it may be incomplete when a potential participant has unusual preferences and values. Moreover, if a potential participant wants to best protect his own interests, then he has a responsibility to ensure that he understands the information disclosed to him. There are obvious perils of agreeing to enrol in a study without material understanding, despite being perfectly capable of comprehension. Giving lazy consent puts the participant at risk of incurring harm if the investigator non-culpably takes his consent to be valid- that is, if the investigator reasonably (but mistakenly) assumes that the participant has achieved adequate understanding. Giving lazy consent also puts the participant at risk of not being able to benefit from study participation when his failure to achieve adequate understanding results in exclusion from the study. CAN INFORMED CONSENT BE ADAPTED TO RISK? With the responsibilities clarified, it is now possible to explain how informed consent standards can be adapted to the risks of the research. We have argued that when research is low-risk and otherwise simple, investigators' responsibilities in the informed consent process are not as burdensome as is often assumed. We now argue that, as the risks of research increase, so do concerns about the validity of consent given by the average potential participant. In turn, this argument reveals that the informed consent process should be adapted to risk and also to other factors, such as the controversy surrounding study goals or the complexity of the information disclosed, when that information is material to a potential participant's enrollment decision. Risk and the validity of consent The risk-adapted argument starts from the well-known empirical evidence on participants' understanding of research risk. A wide range of studies surveying apparently competent adults enrolled in research around the world show that many fail to understand the risks of study participation.22–24 In one interview study, 63 out of 263 clinical research participants reported no risk of any sort from the research and 37 only reported the risks of standard treatment provided as part of the research.25 Similarly, in a recent literature review, 14 out of 23 studies found that ≤50% of participants could recognise or name trial side effects and risks. By comparison, most studies reported adequate understanding of the study purpose, study design and the right to withdraw in the majority of participants.23 Low numeracy skills in the population-even among the highly educated-heighten concerns about otherwise competent participants' understanding of research risk.26 The same applies to widespread biases in the perception of risk. For example, familiar activities often seem less risky than they really are.27 Additionally, patient participants frequently have difficulty evaluating risks in relation to the potential clinical benefits of the research. Many are optimistic, often unreasonably so, about their potential to benefit from the research and tend to discount Bromwich D, et al. J Med Ethics 2014;0:1–8. doi:10.1136/medethics-2013-101912 3 Research ethics group.bmj.com on February 18, 2015 Published by http://jme.bmj.com/Downloaded from its risks.22 Many also suffer from a 'therapeutic misconception'-a mistaken belief about the nature of research, especially regarding the lack of individualised treatment, that typically results in underestimating risks and overestimating benefits.28 It can be difficult to distinguish between mistaken beliefs about the prospect of benefit and positive attitudes towards the future,29 and some of the empirical studies on consent have methodological weaknesses (e.g. potentially measuring recall of information rather than understanding22). Nonetheless, these data cast doubt on investigators' ability to communicate information about research risk clearly and participants' understanding of this often complex and abstract information. On the standard view of informed consent as autonomous authorisation, material understanding is a necessary condition,16 and the risks associated with an activity are material to most people's decisions about whether to engage in that activity. Usually, as the risks of an activity increase, a rational person's willingness to take part in that activity decreases. This applies especially to activities that pose risk but offer no prospect of direct benefit. When this consideration is coupled with the fact that many research participants have a poor understanding of the risks of study participation, those willing to enrol in highrisk studies are more likely to have misunderstood the risks of the research than those willing to enrol in low-risk studies. This gives investigators reason to doubt that the consent given by candidates for high-risk research is valid. Doubts about the validity of consent in high-risk research are exacerbated by the fact that riskier research is often more difficult to understand than research involving lower risks. For example, high-risk studies often include numerous research procedures whose risks can have complex additive and interactive effects. Moreover, riskier procedures and studies typically involve a higher likelihood of experiencing moderate or serious harm than low-risk research, and the inevitable uncertainty around likelihood estimates therefore becomes both more relevant and more confusing. Risk-adapted standards for the informed consent process Our analysis of informed consent implies that an investigator should not exercise illegitimate control in the informed consent discussion and only accept a token of consent when she reasonably believes that a potential participant has achieved material understanding. When the research is low-risk and otherwise simple, investigators can discharge their duties in the informed consent process by properly disclosing relevant information and obtaining a token of consent. But more is required to discharge the duty not to exercise illegitimate control over participants' enrolment decisions as the risks of research increase. Investigators cannot merely assume that consent is valid after appropriate disclosure in moderate or high-risk research; they need to verify it and shape the informed consent process such that it promotes understanding. In order not to exercise illegitimate control over potential participants' enrolment decisions, investigators should consider the available evidence on how best to communicate risk, uncertainty and information about research more generally.22 30–32 Although some of this evidence is mixed, there are several reliable approaches. For example, data support using plain language and pictographs, conveying risk information in frequencies rather than percentages and adopting a 'less is more' approach to selecting information.30 Investigators should also consider how the situational context of the consent discussion might influence uptake of risk information. Furthermore, to prevent investigators from accepting a token of consent when a potential participant lacks material understanding, investigators should test comprehension as the risks of the research increase. Informal testing may be sufficient in research involving moderate risks, whereas formal quizzing is likely required in high-risk research.18 For example, in a study involving a research-only lumbar puncture, the investigator might ask the participant informally to explain why he is willing to enrol in the study given the risk-benefit profile. In high-risk research, it can also be appropriate to delegate the consent discussion to an independent colleague in order to avoid misperception of study risks and benefits. For example, to obtain consent for a phase 1 trial of a novel brain cancer treatment with a research-only lumbar puncture, a qualified professional who is independent of the study might test the potential participant's understanding with a set of validated questions before obtaining his consent. Several studies have explored how to formally test understanding of material facts and participants' motivations.22 33 These additional risk-adapted duties in the informed consent process help to ensure valid consent, protect participants in high-risk research, safeguard investigators' professional integrity and promote public trust in research. FACTORS BEYOND RISK Exploring the ways in which risk can undermine the validity of consent allows us to identify other factors that might have the same effect. These factors are often, but not always, associated with risk. Just as investigators have additional responsibilities in the informed consent process as the risks of research increase, so too do they have additional responsibilities as studies pursue increasingly controversial goals. On occasion, the complexity of study inventions can also change investigators' responsibilities. Controversy The purpose of a study is often material to a participant's enrolment decision. Just as a rational person's willingness to participate in research is likely to decrease as the risks of research increase, so a person's willingness to participate in research is likely to fluctuate depending on the purpose of the research. For example, some people may not wish to contribute to research whose results may be misunderstood or abused. Examples are studies on the genetic determinants of alcoholism that could exacerbate stigma and discrimination of already marginalised groups, or studies on bioterrorist defence that could actually facilitate terrorist attacks. Given that certain studies are expected to be the subject of reasonable disagreement among the targeted research population, willingness to participate in such research is more likely to reveal a misunderstanding or confusion about its purpose than willingness to enrol in uncontroversial research. By extension, the consent of candidates for controversial studies is less likely to satisfy the requirement of material understanding, and hence, less likely to be valid on the standard view of informed consent.2 Furthermore, enrolment in such studies may constitute a significant setback to a participant's invested interests or values. Investigators should, therefore, consider whether a study is likely to be controversial in the target population. This should include consideration of whether the research might violate religious or other deeply held beliefs, such as a study of porcinederived products in predominantly Muslim, Hindu or Sikh populations.35 When a study is expected to be controversial, investigators should informally or formally test whether participants comprehend what they are signing up for. However, when a potential participant may consider a study controversial due to his idiosyncratic preferences and interests, it is his responsibility 4 Bromwich D, et al. J Med Ethics 2014;0:1–8. doi:10.1136/medethics-2013-101912 Research ethics group.bmj.com on February 18, 2015 Published by http://jme.bmj.com/Downloaded from to ensure that he has all the necessary information to protect these preferences (see above). Complexity The empirical literature finds that the average competent participant has difficulty understanding the risks of study procedures as well as complex research interventions. This pertains especially to randomisation.22 23 For example, in the recent literature review, 11 out of 17 studies reported that ≤50% of participants in randomised controlled trials understood their treatment would be determined by chance.23 These data give cause for concern when randomisation is material to a potential participant's enrolment decision-for example, when a participant has joined a placebo controlled study because he falsely believes that he will be selected for the experimental treatment. In such cases, investigators cannot assume that consent is valid after appropriate disclosure. In order not to exercise illegitimate control over potential participants' enrolment decisions, investigators may have to use or develop methods for communicating complex interventions that are commonly misunderstood. For example, participants judge some descriptions of randomisation to be clearer than others.34 Furthermore, investigators may need to test understanding to ensure that they have disclosed complex information in an understandable way. Although controversy and complexity can influence investigators' responsibilities in the informed consent process, risk is typically the most important factor. Most research studies pose some level of risk to participants, while only a few studies pursue potentially controversial goals. Thus, context-dependent consent standards will generally give greater emphasis to risk than to other factors. Moreover, complexity is not of concern per se, but only when we have reason to suspect that, had the potential participant understood the complex intervention, he would not have enrolled in the study. THEORETICAL AND PRACTICAL IMPLICATIONS Drawing on the standard view of informed consent as autonomous authorisation,2 16 we have shown that concerns about the validity of consent increase as the research becomes increasingly risky, controversial and (in some cases) complex. Our arguments support adopting an approach to consent that adapts investigators' responsibilities in the consent process to risk and these other factors. This analysis has important theoretical and practical implications. In theoretical terms, our analysis shows that the standard view of informed consent can be adapted to risk, and that it can do justice to the transactional nature of consent. Miller and Wertheimer have recently argued that the autonomous authorisation model of consent needs to be replaced because it cannot accommodate risk-adapted criteria for the validity of consent.10 Given that the standard view of consent is enshrined in most research regulations and guidelines,1 5–8 their argument would require a sweeping overhaul of current practice. Fortunately, our analysis suggests that we do not have to go there. However, this is not Miller and Wertheimer's only concern. They also worry that informed consent as autonomous authorisation jeopardises socially valuable research in failing to give investigators fair notice about when consent can be considered valid.10 If autonomous authorisation cannot make sense of transactional fairness, it threatens the other values that are served by consent, such as making mutually beneficial arrangements that would otherwise be impermissible. We show that this concern is unfounded. We derive conditions for a fair consent transaction (see the section on Risk-adpated standards for the informed consent process) and specify the consenting parties' respective responsibilities in the informed consent process (see the section on Responsibilities in the informed consent process). In practical terms, our analysis reveals that consent standards should be adapted to risk and also to controversy, occasionally complexity, and possibly other factors. This is a novel insight, which will help to develop a nuanced and robust approach to how investigators should discharge their responsibilities in the informed consent process. Further work is necessary to systematically evaluate which factors risk undermining the validity of consent on our analysis. However, the available evidence suggests that participants currently have most difficulty processing risk and complex or abstract information.23 Importantly, because our argument for risk-adapted consent standards starts from the empirical data on participant comprehension, investigators' responsibilities in the informed consent process will be dynamic. As investigators learn to better communicate risk, their responsibilities will become less demanding. Conversely, novel research methods may introduce complex interventions or concepts that could make investigators' responsibilities more exacting. Furthermore, our analysis suggests that the current discussion about risk-adapted informed consent is incomplete. Research ethicists9 10 11 and stakeholders in research13 focus almost exclusively on relaxing consent standards in low-risk research. However, as our argument shows, a comprehensive risk-adapted perspective on informed consent requires shedding consent requirements in low-risk and otherwise simple research, while adding safeguards for consent to higher-risk and more controversial research. OBJECTIONS AND REPLIES Grades of consent Adapting the standard view of consent to risk might be seen as diluting the concept of consent. It appears as if investigators only have to obtain low-grade consent in low-risk research, while something more substantial is required as the risks of the research increase. Why call what is acquired after mere appropriate disclosure 'valid consent' when what is obtained after testing understanding and voluntariness seems so much more morally robust? This objection misses the deontological constraints present in the standard view of consent that have guided our argument. Regardless of a study's risk level, investigators have a duty not to exercise forms of illegitimate control over a potential participant's enrolment decision, as well as a duty to test understanding of material information when there is reason to suspect a lack of understanding. As we have argued, discharging these duties is often much harder in research involving higher risks. The additional responsibilities help to ensure that investigators obtain valid informed consent when higher risk, controversy and perhaps other aspects of the research such as complexity may compromise the validity of consent. This implies that investigators' additional responsibilities apply even when the research is low-risk, but otherwise controversial or (in some cases) complex. Unnecessary Not all commentators will agree with recent critics that informed consent as autonomous authorisation is insensitive to risk; some may, therefore, consider our analysis unnecessary. The autonomous authorisation view of consent assumes a reasonable person standard of disclosure.2 Since a reasonable person is likely to judge low risks to be less material to her Bromwich D, et al. J Med Ethics 2014;0:1–8. doi:10.1136/medethics-2013-101912 5 Research ethics group.bmj.com on February 18, 2015 Published by http://jme.bmj.com/Downloaded from enrolment decision than high risks, the autonomous authorisation view could recommend adapting the informed consent process accordingly. This would imply an abridged disclosure and, consequently, a lower threshold for understanding in low-risk research, as well as a more thorough disclosure and higher requirement of understanding in high-risk studies. We agree that informed consent as autonomous authorisation can be adapted to risk in this way, but our analysis shows that deriving a risk-adapted informed consent process solely from the reasonable person standard of disclosure is likely to compromise the validity of consent. By determining what ought to be disclosed based on what a reasonable person would want to know, investigators may withhold potentially relevant information from the actual person giving consent. Actual participants perceive risk in different ways, and some may view the risks associated with a study differently than a reasonable person. For actual participants to be able to judge whether study risks are appropriate for them, they must be given comprehensive information about these risks. Our analysis explains how and why investigators ought to disclose a good deal of information to potential participants, but need not test understanding of that information when studies involve low risks. It, therefore, guards against ways of adapting consent as autonomous authorisation to risk that are likely to compromise the validity of consent. Too burdensome Our argument could be seen as increasing the burden on investigators by adding to their duties in the informed consent process. After all, we are proposing that investigators sometimes delegate consent discussions and formally test participants' understanding, neither of which is currently required (although sometimes practiced, e.g. ref. 36). Balancing appropriate subject protection with the need to minimise the burden of conducting socially valuable research requires being attentive to those factors that might compromise the validity of consent. Our analysis indeed reveals that investigators have more demanding responsibilities in research involving higher risk. However, minimal risk research represents between 40% and 50% of new protocols for ethical review.37 38 When minimal risk studies are otherwise simple and uncontroversial, our analysis implies that it is permissible to obtain a token of consent after mere appropriate disclosure. If a more robust consent process is required to ensure the ethical conduct of high-risk studies, we are prepared to defend the additional burden, even if it would delay or stifle some valuable research. Current guidelines and regulations largely fail to specify the factors that can undermine the validity of participants' consent. Our analysis alerts investigators to these factors and specifies responsibilities to mitigate their influence on participants' enrolment decisions, thereby helping to close a gap in current subject protections. With this said, future empirical research will likely show that investigators' overall responsibilities are considerably lighter on our analysis than on the standard view of informed consent. Determining what ought to be disclosed should itself be informed by careful analysis of empirical research on what potential participants generally want to know. Studies show that participants in minimal risk research seek less information than is currently listed on informed consent documents.39 40 Furthermore, the available data suggest that shorter and simpler consent forms facilitate understanding or do not compromise it.41–43 Currently, many consent forms are excessively long, replete with legal boilerplate and written at too high a reading level for the intended reader.44 45 Giving participants a fair opportunity to understand the information that ought to be disclosed to them likely involves shortening and simplifying consent forms. Nothing new Critics might regard our abridged informed consent process in low-risk research as being already implemented. Anecdotal evidence suggests that it is common practice for investigators to have brief informed consent discussions when a study poses only limited risks. Furthermore, some research regulations allow modifications of some or all elements of informed consent in minimal risk research.8 However, this practice is not consistent with the standard view of consent as autonomous authorisation set out in most research regulations and guidelines.1 5–8 The existing literature suggests that some investigators indeed discuss less information than is normally required.46 47 But the worry is that investigators inadvertently exercise illegitimate control over participants' enrolment decisions by omitting information they ought to disclose. Moreover, when investigators fail to explain poorly understood concepts in a clear and understandable way, they fail to disclose appropriately and they may even inadvertently violate the material understanding requirement for valid informed consent. For example, only 65 of 117 investigators in a multinational randomised controlled trial emphasised issues related to randomisation,47 a concept that is sometimes material to enrolment decisions and often poorly understood.22–24 Our analysis explains and justifies why an abridged informed consent process in low-risk research is acceptable and offers a framework to systematically specify investigators' responsibilities in the informed consent process. This gives a proper normative grounding for those aspects of current practice that are justifiable, but helps to correct problematic practices. Incomplete Critics might agree that current fascination with risk-adapted standards for informed consent can distract from other factors that potentially compromise the validity of consent. But they might object that our list of additional factors is not exhaustive. Our analysis is not designed to be exhaustive. It is just designed to show that the view of informed consent found in most of the guidelines and regulations can be adapted to risk, and the arguments that support risk adaptation also support sensitivity to other features of research. Furthermore, our analysis underscores the normative significance of empirical work conducted on informed consent. All too often, the value of this research is seen primarily in its use in challenging the standard view of consent. But this research- and research in related fields, such as health communication and cognitive psychology-is an invaluable source of information for identifying other features of medical research with the potential to undermine the validity of consent. Such research helps to specify how investigators can better discharge their obligations in the consent process, and consequently allows potential participants to make better enrolment decisions. Too complicated To implement risk-adapted consent standards, it is necessary to classify risks to participants in categories (e.g. low, moderate, high) and specify risk-adapted consent standards for each category. Practically minded critics will likely object that such classifications are notoriously complex and controversial,13 14 and developing and implementing risk-adapted consent standards is therefore difficult. Moreover, risk-adapted standards can falsely 6 Bromwich D, et al. J Med Ethics 2014;0:1–8. doi:10.1136/medethics-2013-101912 Research ethics group.bmj.com on February 18, 2015 Published by http://jme.bmj.com/Downloaded from suggest that risk is the main or only factor that influences the informed consent process. These are genuine concerns and need to be addressed. Risk categories should be defined as precisely as possible and illustrated with evidence-based examples, and there should be clear guidance on how to apply the categories. Ideally, a collection of examples would cover the most common research interventions in each category. These examples could then be used as default or paradigm judgements about risk, to be interpreted by investigators and RECs in relation to the protocol under consideration. Moreover, new risk categories should be tested before they are adopted and stakeholders educated. Finally, it is critical to set out clearly how other factors (e.g. controversy) influence informed consent standards. All this is a tall order, and residual uncertainties about how to classify risks will likely remain. But the benefits of risk-adapted consent standards arguably outweigh the disadvantages; not adapting the informed consent process to risk and other factors results in a 'one-size-fits-all' approach to consent, which can unnecessarily delay or stifle valuable research. CONCLUSION A proper understanding of the standard view of informed consent reveals that consent is more likely to be invalid as the risks of research increase. This implies that the informed consent process should be adapted to risk. However, risk is not the only factor that can compromise the validity of consent to medical research participation. Other factors, such as the potentially controversial nature of the research or the complexity of the information disclosed, also may invalidate consent. This paper explains and justifies why investigators' responsibilities in the informed consent process should be adapted to risk, complexity, controversy and potentially other factors. Our argument abides by the deontological constraint that study participants must give valid informed consent to invasive research interventions, whether or not the risks of these interventions are significant. At the same time, it captures the plausible intuition that consent standards should be less rigorous in low-risk research. The paper, therefore, offers the lacking normative justification for the risk-adapted consent standards, which significantly ease the burden on investigators in low-risk research while offering missing guidance on how to obtain valid consent to research involving higher risks. Acknowledgements We thank Bob Goodin, Barbara Koenig, Frank Miller, Joseph Millum, David Wendler, and Alan Wertheimer for comments on previous versions of this paper. We are also grateful for the suggestions from audiences at the NIH Department of Bioethics, the WHO Ethics and Health Unit, and the 2012 Society of Applied Philosophy meeting. Contributors The authors jointly developed the argument, wrote, reviewed and revised the manuscript, and approved the final manuscript as submitted. Both authors contributed equally to the paper. Funding Our work on this paper was supported by the Brocher Foundation. Annette Rid received funding from the People Programme (Marie Curie Actions) of the European Union's Seventh Framework Programme (FP7/2007–2013) under REA grant agreement n° 301816. Competing interests None. Provenance and peer review Not commissioned; externally peer reviewed. REFERENCES 1 Emanuel EJ, Wendler D, Grady C. What makes clinical research ethical? JAMA 2000;283(20):2701–11. 2 Faden RR, Beauchamp TL, King NM. A history and theory of informed consent. New York, NY: Oxford University Press, 1986. 3 Levine RJ. Ethics and regulation of clinical research. New Haven, CT: Yale University Press, 1988. 4 Berg JW, Appelbaum PS, Lidz CW, et al. Informed consent: legal theory and clinical practice. Fair Lawn, NJ: Oxford University Press, 2001. 5 Council for International Organizations of Medical Sciences (CIOMS) in collaboration with the World Health Organization (WHO). 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Eur J Cancer 1994; 30A:907–10. 47 Sabik L, Pace CA, Forster-Gertner HP, et al. Informed consent: practices and views of investigators in a multinational clinical trial. IRB 2005;27:13–18. 8 Bromwich D, et al. J Med Ethics 2014;0:1–8. doi:10.1136/medethics-2013-101912 Research ethics group.bmj.com on February 18, 2015 Published by http://jme.bmj.com/Downloaded from to risk? Can informed consent to research be adapted Danielle Bromwich and Annette Rid published online October 28, 2014J Med Ethics http://jme.bmj.com/content/early/2014/10/28/medethics-2013-101912 Updated information and services can be found at: These include: References #BIBL http://jme.bmj.com/content/early/2014/10/28/medethics-2013-101912 This article cites 32 articles, 6 of which you can access for free at: service Email alerting box at the top right corner of the online article. Receive free email alerts when new articles cite this article. Sign up in the Collections Topic Articles on similar topics can be found in the following collections (371)Legal and forensic medicine (239)Informed consent Notes http://group.bmj.com/group/rights-licensing/permissions To request permissions go to: http://journals.bmj.com/cgi/reprintform To order reprints go to: http://group.bmj.com/subscribe/ To subscribe to BMJ go to: group.bmj.com on February 18, 2015 Published by http://jme.bmj.com/Downloaded from