Is consent always possible?greenspun.com : LUSENET : Lessig's Contracts : One Thread
I started thinking about this after reading M.A.'s question. In both Thoroughgood and Brooklyn Gas there is the assumption that the lay party could have understood the terms of the contract if someone had been willing to honestly translate/explain them. The burden on the more powerful player was to provide an interpreter to insure that the weaker party knew what he was contracting for. But what if one party cannot contract. I have this one scenario in my mind that I have been thinking about. What about the cases of terminally ill patients asked to participate in medical trials. These patients havea 0 chance of living. The doctors faithfully explain to them that the medical trial will confer no benefit on them, it may even harm them. But inside their heads, the patients are thinking that if by some miraculous chance the drug works, then it is worth participating in the trial since that chance of recovery, let's say .00000000001 is still greater than 0. So what they are really contracting for is a last ditch cure. There is no meeting of the minds here -- the parties are contracting for two different things -- the doctor for a consenting subject to participate in a medical trial and the patient for one last try to live. Is it coercive to even offer the chance to participate in medical trials to the terminally ill since we know that many of them, even if partly motivated by altruism, are hoping they will get well -- we know they are not truly consenting to the reality of the medical trial. Or, is there a strong enough public policy argument that certain terminal conditions will never be treated without this research, etc. I know this is out there, but I am just wondering... jenn
-- Anonymous, November 18, 1998
Perhaps, in the situation Jenn describes, there is more of a meeting of the minds than perhaps is immediately evident. (I'm working off a little knowledge of late-phase pharmaceutical trials I picked up as an undergrad.) These trials, while often not executed with the aim of curing the terminal disease, are instead of drugs that are possibly capable of improving the quality of life of the victim. When anti-HIV drugs such as AZT were under trial, for example, the doctors and patients both understood that AZT would almost certainly not cure the disease; it might, however, serve to prolong life and/or improve the quality of life for the patients who participated in the test. In that sense, therefore, there was a meeting of the minds. If indeed there is coercion involved in late-phase pharmaceutical trials on terminally ill patients, it derives not from the doctors/contractors but from the disease itself, which compels the victims to undertake a study to which they otherwise would not consent.
-- Anonymous, December 01, 1998