The problem Menzel tackles is the tension between two goals:
This is especially pressing when health care is rationed, that is, when beneficial treatments or technologies are not provided or developed.
He thinks this conflict has been miscast as a conflict between society and the individual. In fact, patients want both efficiency and care: greater efficiency means more resources are available for more care or for other valuable pursuits. Seeing it this way leads to the solution to the problem of rationing. We should ration our health care budget in ways that patients would consent to.
What are we supposed to imagine patients give their prior consent to and when are we supposed to imagine it is given?
For example, the best case for Menzel is artificial hearts. But it matters how we frame the question. If the question is, “should we have an artificial heart program at all?” the answer will presumably be “no.” But it will often be “yes” if the question is, “given that there is an artificial heart program, do you want an insurance policy that will give you access to an artificial heart if you should need one?”
By the same token, it’s not clear when we’re supposed to imagine prior consent as having been given. As the second chapter indicates, Menzel thinks of his project as involving hypothetical rather than real consent. But he also distinguishes his project from Rawls’s, or even Dworkin’s, by trying to imagine what people would consent to given full information about their circumstances. Thus people know their incomes (ch. 7) and they know if they have chronic health problems (p. 16). Nina effectively pressed the point that we don’t really know when in a person’s life we’re supposed to look to discover if they would give their consent to rationing.
And if we’re supposed to imagine people making choices pretty much in the world we inhabit, then the question they would face about artificial hearts, for example, would be the second one above rather than the first.
Menzel’s second chapter works through a number of examples in which hypothetical consent appears to be illegitimate or irrelevant. For example, the fact that I would have bought a bottle of wine at $3 doesn’t mean I’m contractually bound to give you $3 when you deliver the bottle to my doorstep. (Interestingly, Noah disagreed: he thinks he’d be obliged to pay $3.) He was trying to distinguish his own use of hypothetical consent from these deficient ones.
But this chapter doesn’t contain many positive cases in which hypothetical consent does any obvious work in explaining why one party has an obligation when she would otherwise be at liberty or another party is at liberty to do something that would otherwise be wrong.
The example that is generally thought to show that hypothetical consent is significant involves an unconscious patient who needs emergency surgery. Doctors are normally forbidden from cutting someone up without consent. But, it is thought, hypothetical consent can give them the liberty to do so in a case like this.
Daniel had doubts about whether Menzel had distinguished the legitimate from illegitimate uses of hypothetical consent. If you made the wine recipient unconscious, such that he couldn’t be asked for his real consent, nothing about the case would change. He still wouldn’t owe $3.
Alex N. supposed that the difference between the cases had to do with the importance of what was at stake. That seems right, though it leads naturally to Alex P.’s thought that consent does very little in this sort of case. Rather, he thought, it turns on the fact that doctors are obliged to try to save your life. You can restrict them by withholding consent to treatment, but when you’re unable to speak for yourself, they should go ahead and act on their professional duties. In other words, it’s the professional duties and not consent that explains why the doctor is allowed to cut up the unconscious emergency room patient. I thought that Mike agreed with Alex P., but maybe I’m mistaken about that.