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Douglas MacKay has recently argued that opt-out organ procurement systems are not sufficiently respectful of people's autonomy (D MacKay. Opt-out and consent. J Med Ethics forthcoming). One of his targets is a paper of mine in this journal.1 Here, I reply to some of his criticisms. First, let me summarise my position. I argued that an opt-out system of organ procurement should not be identified with ‘presumed consent’ because various (putative) justifications are available for such a system (ref. 1, p. 69). I then proposed that an opt-out system can be understood as relying on tacit consent (ref. 1, p. 70). Since there is no ‘natural’ act of consent, the state can specify various acts and procedures, such as carrying a donor card or signing up to a register (ref. 1, p. 71). One possibility is to decree that consent is given by the act of not registering one's objection (opting out). I note that certain background conditions—principally widespread public awareness of the system—are necessary for this consent to be valid (ref. 1, pp. 71–2). Nonetheless, consent is not simply presumed, but actually given, although implicitly (ref. 1, p. 71). MacKay accepts that implicit consent can be valid consent (D MacKay. forthcoming, p. 3). However, he suggests that a further understanding condition is needed. It is useful to distinguish between the weaker claim, that understanding is necessary for valid consent, and the logically stronger claim that understanding is necessary for consent simpliciter . MacKay appears to endorse the latter (D MacKay. forthcoming, p. 3). I reject the strong claim and then question the weaker one. As MacKay rightly notes, my claim is not simply that ‘a failure to opt out can be construed as consent by a legal system’ (D MacKay. forthcoming, p. 4). …

The notion of “consent” is frequently referred to as “informed consent” to emphasise the informational component of a valid consent. This article considers aspects of that informational component. One misuse of the language of informed consent is highlighted. Attention is then directed to some features of the situation in which consent would not have been offered had certain information been disclosed. It is argued that whether or not such consent is treated as sufficiently informed must, from a moral point of view, take account of four conditions. When these are applied to the operation of consent in relation to criminal responsibility for HIV transmission, the approach in some recent cases is shown to be morally questionable.

In his latest defence of opt-out organ donation, Ben Saunders argues that opt-out does not depend on presuming consent but instead entails a donor tacitly consenting to making her organs available for transplantation.1 Consent is implied, not merely presumed, in the absence of a registered objection because consent is always an act—a purposeful action or inaction—not a mental attitude of approval. Saunders' argument hinges on a strong interpretation of consent as a performative utterance in which the act is sufficient and the mental attitude is unnecessary. Once social conventions have established which (in)action constitutes consent, Saunders argues, a person who has performed the relevant act—whether expressly or tacitly—incurs the obligations pursuant to giving her consent. The fact that she may have performed this act without intending to consent is immaterial. This last point seems to take us a step too far. Instead of insisting that an act constitutes consent regardless of a person's intention to approve, it seems more reasonable to adopt the view that, under normal circumstances, acts of consent ought to be minimally approval-tracking. We might think a consent procedure to be ‘minimally approval-tracking’ when the probability of the consenting act coinciding with what the ‘consenter’ really wants (independently of the procedure) satisfies some threshold value—for example, more than 50%. Or, in comparative terms, we might evaluate two different consent procedures according to how well they appear to track what ‘consenters’ really want. Take the familiar example of the …

In her commentary, Alderson makes four major criticisms of the family rule. She claims that: consent must be explicit; that consenting parties should be reasonably equal; that the concept of a family rule adds little to current understanding, and that the effect of applying the concept in practice will be to impair the consenting process. However, there are other important examples of implicit consent in daily life, and consent between unequals is common and unexceptionable. The family rule establishes an unequivocal ethical base for the role of children, parents and practitioners in the consenting process, which is sorely needed. This base structures practitioners' interventions towards children in an appropriately empowering manner. Therefore, Alderson's critical objections fail.