The Danger of “Presumed Consent”

On August 5^th of this year it was reported in the news that Parliament is close to passing an overhaul of the organ donation scheme in England through the so-called “Max’s Law”, under which “adults will be presumed to be organ donors unless they have specifically recorded their decision not to be.¹” This is in contrast to the current system where potential donors have to explicitly record their consent on the NHS Organ Donation Register.

One should always be particularly wary of laws that are named after specific individuals or events – almost certainly the story of some child or tragedy has been deployed in order to tug at our heart strings so that we wave through a state intervention while struggling to hold back our tears. In this case, the tragedies are, according to the BBC, the 411 people who, in 2017, died before a donor organ became available to them, and of the plight of approximately 5,000 people currently on the waiting list for such an organ in England.²

We might start by pointing out that the real cause of a shortage of donor organs is, of course, the fact that they are forcibly prevented by the state from trading at a market price. The supply of something that is in high demand can rarely be met by altruism alone and so it is always likely to be the case that either under-pricing a good or removing any benefit, cash or otherwise, from those who could be prepared to supply it will lead to its shortage. That may be an uncomfortable fact for those who cannot bear to imagine people “profiting” from the sale of organs. They might, however, wish to consider whether transmuting a monetary cost into the cost of forcing 5,000 people to wait in limbo for a voluntary donor under the shadow of death is sufficient to justify their moral scruples. Further, they may wish to ponder whether it is worth pushing the trade in organs out of the light of legitimacy and into the shadows of the black market – a highly lucrative underground industry worth between $600m and $1bn in profits per year, and where organs are often sourced from kidnapping and murder specifically for the purpose.³

In fact, the shortage is all the more incredible given that the number of deaths in the UK each year amounts to approximately half a million. This means that for each of those 5,000 people currently waiting for a donor organ there will be around 100 opportunities to source one just this year – roughly two every week. Moreover, the organs of a single, deceased individual can be distributed to multiple recipients – the heart to one, kidneys to another, etc. – so the actual number may be more like 1 in 400 or 600. Of course, not every deceased person’s organs will be suitable for transplant and, even if the organs are healthy at death, there are, no doubt, issues with compatibility with or rejection by a specific recipient, etc. Moreover, some people will never agree to donate their organs regardless of the benefit they could receive in return. Nevertheless, these numbers should at least give one pause for thought as to why it seems to be so difficult to find a willing supply of donor organs to match demand.⁴

However, the specific problem we wish to address here is not the supply of donor organs; neither also will we address the question of who, from applying  libertarian theory, possesses rights to a deceased body and whether you may, in fact, be said to possess any right whatsoever as to how your physical body is handled after your death.⁵ For the sake of argument we will assume that it is your right to so decide and that any action by another individual contrary to your decision is a breach of your rights.

Rather, the issue we will discuss here is the problem of “presumed consent” – that the state will deem you to have granted your consent to a specified act occurring if you have not taken steps to explicitly withdraw that consent.

Presuming a fact may be perfectly reasonable when the cost of establishing that fact outweighs the downside of the presumption being wrong. Sampling, for instance, attempts to determine certain facts by examining only a minority of the subjects of interest before extrapolating the results to the subjects as a whole – i.e. we presume that what applies to the few applies to the many. This is something a company is likely to do before marketing a new product. Asking every single person in one’s target market whether they would buy that product would clearly come at a prohibitive cost, whereas asking a representative sample and proceeding according to the results may be worth the risk of loss in the event that no one, in fact, wants to buy the product.

In other cases, however, an incorrect presumption could land one with an enormous downside. For instance, stepping off one side of a ravine while presuming the existence of a bridge to the other side could obviously end in disaster if the bridge is not, in fact, there. Indeed, presuming such a fact amounts to nothing more than careless stupidity.

It does not require an overwhelming dose of cynicism to conclude that if the state decides to presume a fact then it is because it needs a convenient method of circumventing the obstacle of that fact being untrue. Indeed, when it comes to presuming a decision of a particular individual the obstacles are quite formidable.

The state would like you to think that the decision presumed is a binary choice, i.e. that the presumption “person A has decided in favour of outcome X” excludes only the possibility that person A does not, in fact, favour outcome X. This is not the case however; for a presumption in favour of outcome X must also presume that person A has decided against pursuing outcomes U, V, Y or Z also. We are all faced with thousands of choices as to what to do with the means we have available at our disposal and so the question of what I should, for instance, do with my Friday evening is not whether I should, say, go to the cinema or not go to the cinema – it is a choice between whether I should go to the cinema, or to the restaurant, or to the bowling alley, or to the pub, or just stay at home. Only an actual, explicit choice by me reveals my desires to the exclusion of all others whereas a presumption is just picked out of the air from a myriad of possibilities. Similarly, therefore, there is no reason for us to presume that an individual has consented to have his organs donated ahead of presuming that he consented to have his body turned into compost.⁶ The only reason why the presumption of consent is invoked with regards to organ donation is, of course, because such consent is an outcome desired by the state.

However, the more specifically libertarian problem with “presumed consent” is that the state is placing the legal burden on you to prevent the violation of rights which you (should) already have.⁷ It is akin to a burglar announcing that he will presume your consent to have your house burgled unless you forfeit your time and effort to communicate to him that you would rather be left alone.

It is true, of course, that we all take positive steps to prevent our rights from being violated. These, however, are simply acts of prudence to make such a violation less likely. For example, if I do not wish to be burgled it is probably a good idea for me to lock my doors and windows before leaving my house. If I fail to do so then I should probably not be too surprised to return home to find that my home has been ransacked. Moreover, my friends and neighbours may well be justified in lacking any sympathy. Nevertheless, foolish as I may have been, such a failure does not mean that I have consented to the burglary – it is still the case that my rights have been violated and the burglar has still broken the law. This is not so with “presumed consent” – you’re failure to act means that you have waived whatever rights you had.

Moreover, the presumption goes deeper than simply presuming your consent to a particular outcome – it presumes also that you considered the specific choice in the first place whereas, of course, you might not have given it any thought at all. In other words, the state is dictating to you which choices are important to make and if you don’t make them the state will do so for you.⁸ Indeed, as we indicated earlier, the world is full of thousands if not millions of possible decisions and choices that can be made, all the way from what to have for dinner tonight up to intellectually heavy and contentious questions of moral philosophy. A person has to ration his time to deciding upon issues that he regards as important while dismissing those that he deems to be not (or less) important. Liberty includes the freedom to refrain from making particular decisions as well as the freedom to make them.

However, even if advocates of “presumed consent” will not view the doctrine as an affront to liberty, they might at least like to remember the wider principle of “first, do no harm”. If you do not know for sure to what a person has consented then is it not best to leave things alone rather risk harming them through some intervention? In other words, the downside of an incorrect presumption – the invasion of another person’s body or property against his will – is not a trivial cost that is “worth” risking.⁹

Bearing all of this in mind, there at least three, real, related dangers threatened by the invocation of “presumed consent” in this age of statism.

First, through the “opt-out” mechanism, “presumed consent” can boast of preserving the choice and bodily integrity of the individual; consequently, the illusion of control serves to soften the blow of a statist intrusion into your rights in order to produce a “good” or popular outcome. We can probably expect, therefore, neo-liberal and utilitarian free marketers to be supportive of such a scheme, particularly those for whom the superficial sanctity of “choice” is a favourite buzz word. Indeed, “presumed consent” bears close resemblance to the kind of “libertarian paternalism” (a derivative of so-called “behavioural economics”) preached by the likes of Richard Thaler and Cass Sunstein.¹⁰ Such “libertarians” do not demand a certain outcome through the use of brute force but, instead, suggest that legal mechanisms should, say, be used to change the default position to an outcome that people “should” regard as better. In other words it is a slightly less matronly version of the nanny state.

The upshot of all of this is that such intrusions may prove to be extremely difficult to fight, with most of the easily understandable notions in favour of freedom (i.e. “choice”) having been effectively neutered. Indeed, the only reason why consent isn’t simply overridden entirely and the state just scoops out everybody’s organs after death regardless of what they want is because it simply cannot get away with it. Consequently, they have to use the illusion of preserving people’s freedom in order to achieve their objective.

Second, and as a corollary of this, “consent” itself may end up, one day, being completely redefined as “presumed consent”. We may, in other words, reach a point when the state deems you to have granted your consent to a whole array of intrusions precisely because you have failed to opt out – and/or that acts to which we currently have to grant our consent explicitly may one day have that consent granted by our failure to deny it.

Redefining a concept out of existence is not a new trick that the state has conjured in getting our freedom to vanish. Perhaps the worst example is the fact that the word “liberal” has morphed over the decades into the equivalent of a social democrat, leaving genuine devotees to liberty such as ourselves to adopt the slightly more jarring label “libertarian”. Moreover, a redefinition of “consent” is one that the Thalers and Sunsteins of this world would usher in with glee.

In fact, a popular justification for the state itself already relies upon a bastardisation of the notion of consent (albeit one from which you cannot opt-out) through the fiction of the “social contract”. It would be one thing for statists to simply call a spade a spade and admit that the state uses brute force to achieve outcomes that it wants; any justification of the state on such terms at least has the merit of honesty. It is entirely another thing, however, to redefine the reality of the state as the antithesis of that reality – that force is consent; that oppression is freedom; that you really want the gun to be pointed at your head while your wallet is raided. Such dishonesty simply betrays the fact that the state is ultimately unjustifiable. “Consent” morphing fully into “presumed consent” is of this ilk.

Worse still, the citizenry may one day come to accept the notion that it is your civic duty to explicitly opt out of any statist intrusion if the idea that you “should have known” of the opt-out requirement takes hold. Indeed, the state already repeats the mantra that “ignorance of the law is no excuse”. This old adage, however, dates from a time when the law was based upon ancient, well established and, moreover, quite obvious principles – principles the ignorance of which would suggest an inexcusably inhumane character. We would not accept, for instance, the plea by a murderer that he somehow “didn’t know” murdering was against the law; the obvious abhorrence of killing another individual would rightly outweigh the fact that one may not have stumbled across the specific provision in a statute book.

Matters are completely different, however, when the law consists of tens of thousands of pages of arbitrary rules and regulations in small print – a library so extensive that not even lawyers could possibly recite them all. This has created the absurd situation in which you could breach several laws a day without even realising it. Yet the state, somehow, has managed to convince us that it is still our duty to be aware of everything that it decrees. There is every possibility that duties to “opt-out” could reach a similar burden of compliance and yet people could still regard them as your reasonable responsibility.

Third, while “presumed consent” to organ donation is not a new idea and is already in operation in numerous other countries, its introduction here may be the state’s way of testing the water to expand this kind of intrusion into a number of areas in which explicit intervention against one’s will remains contentious.

Thin end of the wedge (or “slippery slope”) arguments are not always credible, of course. However, we have to acknowledge the fact that people are more than willing to accept the crushing burden of statism from which we suffer today partly as a result of it having been introduced incrementally. Indeed, if we had the ability to uproot any ordinary person from the eve of the First World War and plant him in 21^st Century Britain he would probably gasp in horror at the scope and extent of the state compared to that of his own time. Instead of the proverbial frog which is dropped into boiling water before leaping out immediately to save himself, we are the frog dropped into cold water which is then heated gradually until it boils to death.

“Presumed consent” may, therefore, be a stepping stone for the state on the way to fuller interventions – a way of softening us up to explicit and forceful interference by moving us into passive compliance with outcomes that the state desires. Indeed, we have already slept walked into granting the state intimate knowledge of every detail of our lives simply by embracing various forms of so-called “social media”. In fact, controversial record keeping and sharing – perhaps DNA databases, for example – may one day be a prime candidate for some kind of “presumed consent” on the way to making such schemes explicitly compulsory.

One particular area for worry is that we are fast reaching a point where the burgeoning welfare state will drive the state into bankruptcy. Although the entire edifice of taxing, borrowing, inflating and wasting will collapse at some point, we will probably have to endure, in the meantime, a gargantuan effort by the state to a) decrease the eligibility for entitlements and b) increase its predations upon the vestige of the productive citizenry – all without provoking civil unrest.

In order to achieve these objectives, the state will need to develop mechanisms that allow it to demonstrate that fewer people are “deserving” of entitlements to medical care, social security, etc. while the people mulcted to pay for whatever is left to dish out are less entitled to the fruits of their productivity than they already are. It is difficult to believe that the doctrine of “presumed consent” – particularly when coupled with its orientation into a civic duty, as we outlined above – would not be a useful tool in this endeavour. We might even get to a point when, say, state medical care is so overburdened by demand that the state will presume your consent to withhold certain treatments in the event of an accident or illness; or to non-resuscitation; or to switching off your life support if you don’t regain consciousness after, say, a week.

Worse still, actively opting out of such consent could come to be regarded as a shame, as if you would be taking “selfish” steps to deny precious and scarce medical resources to someone more “deserving”. Needless to say, such a shame would fall entirely upon members of the indigenous, working and productive population – the welfare recipients that grant the state its purpose through their endless dependency would, of course, be exempted. Moreover, as the debt burden is shared throughout the Western world all countries would be looking to move in concert in arousing similar attitudes.

One does, of course, hope that this nightmare vision of the future is entirely wrong. There is, however, every reason for us to block off an avenue for its arrival in the form of “presumed consent”. What seems implausible and impossible to one generation becomes normal and routine for the next. In fact, the time it takes for a notion to move from impossibility (or absurdity) to normality is reducing remarkably. Moreover, it is no good for us to start at the position of adopting “safeguards” in any preliminary introduction of “presumed consent” so that it isn’t abused or extended in this way or that – for example to ensure that, with organ donation, clinicians are not motivated to hasten the end of the life of a patient whom they know has not withdrawn consent, or who may be unaware of the requirement. Placing the responsibility to police safeguards in the hands of the very institution – the state – that has an interest in rolling back those safeguards will mean that they are, one day, rolled back.¹¹

Instead, “presumed consent” must be recognised as an abomination, an affront to liberty which veils itself with malice in liberty’s language – the language of choice, of freedom, and of autonomy. As a tool in the erosion of genuine consent, it may one day take its place alongside the gradual dilution of other ancient rights that we have enjoyed relatively intact until the most recent decades – habeas corpus, trial by jury, free speech, and so on. Libertarians should be unwavering in their opposition to any attempt to introduce it – and so we must start by opposing “Max’s Law”, working instead to replace it with a genuine, free market solution to the donor organ crisis.

Notes

¹https://www.bbc.co.uk/news/health-45056780

²Ibid. Max himself is actually a survivor and successful donor organ recipient.

³https://en.wikipedia.org/wiki/Organ_trade

⁴Also of note is the fact that the United States is able to achieve a donor rate of 25.97 per million of population through an “opt-in” system, a figure which most of the more explicitly socialised healthcare systems in Europe can only match or exceed by employing the method of “opt-out”. Indeed, Britain – which perhaps has the most explicitly socialised system of all – is close to the bottom of the list at 12.9 donations per million under the current “opt-in” system. Perhaps, if such a study has not already been carried out, the possible correlation between socialised medicine and donor organ rates is worth investigating? https://en.wikipedia.org/wiki/International_organ_donor_rates.

⁵Although we may point out that if libertarian theory denies you such a right then the latter is certainly denied to the state.

⁶This is not a jest – http://www.bbc.com/future/story/20150219-i-will-be-composted-when-i-die.

⁷Another way of putting it in a more “legalistic” sense is that presumed consent binds people to positive obligations as the result of an omission rather than as the result of an explicit act – i.e. that your failure to act suddenly grants rights to others over your property.

⁸In fact, another term for “presumed consent” is “mandated choice”.

⁹None of this should be take to mean that “presumed consent” is an illegitimate tool in, say, clauses in a contract, either to distribute risk or to avoid costs of gaining explicit consent by defaulting the parties to the most likely choice. An employer, for instance, may offer an opt-out benefits or pension scheme, or the vendor of a product may offer an opt-out guarantee or warranty in exchange for a higher price. Here, the obvious difference is that one has to consent explicitly to the entire contract in the first place, whereas the state’s presumption of your consent as a result of a decree is simply an imposition.

¹⁰Cass R Sunstein & Richard H Thaler, Nudge: Improving Decisions about Health, Wealth and Happiness, Yale University Press, 2008. Technically, libertarian paternalism concerns only choices that benefit oneself whereas a wider application of “presumed consent” – such as to organ donation – exceeds this boundary.

¹¹Moreover, we can, no doubt, look forward to failures of state record keeping and the “hacking” of state IT facilities where people’s opt-out data is stored.

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