Strong or Weak Consent in Medical Law? Identifying the Values Protected in Transplantation Medicine in Europe.

Abstract

Across European legal systems, there is a consensus on the importance of consent in medical ethics as recently emphasised by the European Court of Human Rights in Pindo Mulla v Spain. Yet, consent in medical law poses several challenges in practice which includes the need to reduce mistakes in the consent process. We argue that consent is scalar and includes 'strong' consent (where a patient has maximum capacity to express a fully informed, voluntary decision) to weak consent (where a patient has said 'yes' but with limited understanding or liberty. We propose a 'model of disaggregating consent' which highlights the range of values that consent protects albeit to varying degrees in different cases. We apply our model to the example of organ donation and organ transplantation to illuminate how our model paves the way for improving decision-making in the consent process by factoring in the pluralistic values at play.