ABSTRACT
The first thing we must do is distinguish between hypothetical consent and hypothetical contract. Hypothetical consent is best understood by looking at the context in which it is most frequently invoked: the practice of medicine. In medicine, hypothetical consent works like this: hospital patients are generally asked to consent to surgical procedures being carried out on them. Otherwise, legally the invasion of their bodies would be an assault. The surgeon will take a view on what course of treatment is in the best interests of the patient and explain a recommended plan of action. At this point the patient can either consent to the treatment or decline. Some patients, notably those who are comatose, cannot give such a consent. How is the surgeon to proceed? It may appear that the answer to the question is obvious. The surgeon should make exactly the judgement as to what is in the best interests of the patient and proceed on the basis that the patient would share this view. At this point we should notice that there is an alternative course of deliberation that the surgeon may follow. Instead of asking simply what is in the patient’s best interests (as considered by the surgeon), the surgeon may ask a different, hypothetical, question: would the patient consent were he conscious, rational and fully informed of the nature and likely success of the proposed operation? Surgeons’ temperaments dispose them to intervene, to save life or cure illness or advance medical science, so it is important to see that the answer to the hypothetical question may be ‘No’ when the surgeon’s judgement of the patient’s best interests may lead her to say ‘Yes’.
