Opting out of informed consent?

In the process of conducting research for a project, I have recently encountered “opt-out” provisions in two separate contexts: medical research and organ donation. An opt-out provision presents a situation where consent is assumed, and in order to not participate in the research/procedure/donation an individual must take active steps to refuse consent. This stands in stark contrast with informed consent where before any type of procedure is done, the patient (or donor/donor’s next of kin) must affirmatively agree to any type of procedure being done to him/her. The National Institutes of Heath defines informed consent to mean “You are informed: you have received information about your health condition and treatment options. You understand your health condition and treatment options.You are able to decide what health care treatment you want to receive and give your consent to receive it.”(see here). Informed consent is the standard in the United States for both research and treatment. Beyond being just an example of the value placed on autonomy in the United States, it is our response to past harms and proactive approach to prevent exploitations of people in the future (think of the Tuskegee experience, for example).

So why are opt-out provisions even being considered? In both of the spaces where I have seen opt-out provisions being implemented (see this article) or proposed (see this article regarding a bill in Vermont), the commonality seems to be an extreme need and not enough resources to meet it. However, despite the extreme need, I believe we can come up with solutions that are not at the expense of informed consent.

I believe we need to be very cautious about adopting opt-out provisions. While I understand the need to find a creative approach to meet a need where there is a major lack of resources, I think that opt-out provisions present many other, and potentially more serious, concerns. What are your thoughts on opt-out provisions? Can you think of situation where they have been used in an ethical manner? Can you think of other creative approaches to dealing with meeting a lack of resources that maintains the standard of informed consent? I’m interested to learn more about your interactions with consent in an opt-out format.

Leave a Reply

Please Login to comment
3 Comment threads
0 Thread replies
Most reacted comment
Hottest comment thread
2 Comment authors
Jon HolmlundBarry Orvell, MD Recent comment authors
newest oldest most voted
Notify of
Barry Orvell, MD
Barry Orvell, MD

Good question. Is it OK for organs to be taken without specific consent? I don’t know? Say it isn’t. Then, Let’s say you get a form for the first time. “What is this?”, you say? I want to opt out of this ” request”, and here is how I can do that. OK. And you thnk, ‘sure am glad they put “opt out” in this’. Let’s say, “I never thought about it’ OK i’ll opt out. OR IN. So once you send a communication, you m= might as will be complete

Barry Orvell, MD
Barry Orvell, MD

to continue:
Set’s say is is legal to take my organs without consent.
Oy Vey, I happen to be Jewish. or Muslim or something else. /that would prevent my burial, lead me to hell, or require endless reincarnations in the form of lawyers etc.

So again, OP me OUT
We all need to consider these and many other related questions:
in my case opt me in.

Jon Holmlund
Jon Holmlund

Thanks for this post, Courtney. Implied consent is a dubious and potentially dangerous practice that should be revisited regularly in bioethics discussions.

For organ donation, we already have “opt in.” It’s called the donor card. And it has legal force.

OUT must be the default position. Consent is not implied unless affirmatively given after being appropriately sought.