Wednesday, January 19

Pogs, surgeries and consent

I've been trading since I was a kid. Whether it was hockey cards, recess snacks, Magic cards, Pokémon cards or pogs, we were always trading something.

There was a tacit understanding that the buyer-beware policy applied when making a trade. But it was also understood that it was bad practice to take advantage of an ignorant trader. No one liked situations where a kid went home to boast to their older brother about a trade, only to hear he'd been duped. It inevitably led to a big argument the next day: "I didn't realize the card I gave you was so good. No fair — I want it back."

Should a kid who unknowingly trades away a valuable pog be able to undo the trade? This was one of the tougher ethical questions we dealt with on the playground. You shouldn't make a trade if you're not sure about it. But on the other hand, if you didn't understand the trade you were making, how can you consent to it?

This issue of informed consent is what's at the heart of an article I came across in This magazine (disclaimer: it's a very dark article; those who are squeamish about surgery, blood, below-the-belt stuff and suicide will want to skip over the article).

In a PG-rated nutshell, two individuals agreed to a trade: a person without a medical licence would perform a surgery in exchange for money. I do not condone what the patient did; clearly, hiring someone off the street to perform surgery is not smart. But should it be against the law? No one was defrauded — the patient knew their surgeon wasn't a real doctor and both parties consented to the trade.

If we ran a poll, 99% of people would probably say that hiring someone off the street to perform a surgery is a very dumb move. But should it be against the law? Should adults step in when kids make a lopsided trade on the playground to ensure no one is taken advantage of?

In this case from This magazine, the surgeon was prosecuted for assault, against the wishes of the patient. It is not unusual for consensual acts to be prosecuted; selling heroin, for example, is illegal. According to the article, however, the assault charge was not levied because the so-called surgeon was selling something illicit. Rather, it was levied because the patient did not have the legal authority to consent to the surgery. It was a case where the law said she didn't know the value of the hockey card she was trading away, in a sense.

Frequent readers of this blog probably notice that I tend to offer black and white opinions. But this one has me puzzled. The libertarian in me says we should let people make their own trades, even when they seem extremely stupid. But there is another part of me that is revolted at this notion, as it can lead to some brutal trades, such as the one in This.

When should we let traders make their own mistakes, and when should parents or the government jump in when a trade is inappropriate?

4 comments:

  1. I've been thinking about this a good bit since yesterday. You pose a good question, and I agree that there is a lot wrapped up in this issue.

    The standard criteria for what a provider needs from a patient before entering into an agreement to perform some sort of activity (sorry for the really ugly phrasing there) is not 'consent', it's 'informed consent'. This is more complicated than just agreement (in some ways, the complexity is good, in others, maybe not). To answer your question, I think we need to approach the matter from that angle (though, yes, we could debate what level of informed consent is really necessary).

    It seems to me that information and knowledge, on both the 'surgeon' and patient are key. I still don't have an answer for you, but that's how I'm approaching the matter.

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  2. I think I understand what you're saying, and I think I agree with you, at least from a theoretical standpoint. If there's not "informed" consent, then something is wrong and it's OK for Big Brother to jump in.

    The difficulty in practice would be defining "informed consent. I think that's what troubles me about the magazine article. Clearly, the patient consented. Was it "informed consent"? I'd like to think not, because I don't like the decision that she made. But someone else could easily disagree.

    My follow-u question to you would be: how do you practically define "informed"?

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  3. Part of the issue about whether it was informed consent was whether or not the cutter was able to properly explain the potential risks of the surgery... and I don't think, legally, it's as simple as saying, 'you might bleed to death'. I can't comment on whether or not that was the case here. I believe the law functions in such a way that it assumes only a doctor (or similarly accredited individual) good give such information. Again, though, that's pretty problematic as it now turns the paternalism towards the practitioner, and not just the patient.

    There is also the question of the information that might be implicitly passed along to the patient, such as: the training/skill of the cutter, the sterility of the room, knowledge of proper follow up procedures (which, it appears, were lacking in this case).

    I tend to think of these situations in terms of the free market, and, as I'm sure you know, one basis of a truly free and competitive market is information symmetry. Though I'm pretty much a libertarian, I'm cool with some government safety regulations (say building/housing codes and safety regulations for cars), because there comes a point when it is unreasonable to expect the average citizen to have sufficient information to make a wise decision (how would you buy a house if there were no building codes and no way of testing safety?).

    Granted, that's all a little simplistic and not perfectly analogous to the situation at hand, but I think that is where I would tend to break regarding defining "informed consent". We have to cut (no pun intended) people a lot of slack in allowing them make their own decisions, but we also need to do what we can to break down information assymetries.

    I'm not sure there's anything, necessarily, wrong with suggesting that going to see a cutter is legal, the body modification is legal, but if, after the fact, the cutter did not sufficiently perform his or duties (in terms of the procedure, sterilizing the room, follow, advice, etc.) that the cutting becomes, retroactively, illegal. It seems a little odd, and not the fairest that of two identical acts, one could be legal and one could be illegal because of some quirk of fate affecting the outcome of the patient, but - and I think this can jive with the general libertarian sentiment that you've covered in your post - it puts the responsibility on the cutter. That person must make their own decisions and live with the consequences, no matter what the patient had said or consented to (or "consented" to).

    I'm not totally satisfied with that analysis (I'm just kind of thinking things through). Defining "informed consent" is kind of messy, as is restricting choice and infantilizing adults.

    I can't argue a whole lot with the internal conflict you note in the post. We should want to let adults live their own lives, but, at the same time, watching people make dangerous decisions can be gut-wrenching.

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  4. ...and apologies for the spelling/grammar/syntax/editing mistakes.

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