``Effective consent'' is an expression that Faden and Beauchamp use to describe sets of policy rules designed to assess consent decisions according to institutional practices in different contexts. It aims to protect the patient, subject, or user by restricting and regulating the consent-seeker. This is quite different from the autonomous action in 1.2.1, and effective consent can, according to Faden and Beauchamp, be derived without any requirement for autonomous authorisation, but often relies on the concept of respect for autonomy for its justification. Although autonomous authorisation can occur within effective consent, and vice-versa, effective consent can (and often does) sidestep any need for specific autonomous authorisation by purely relying on fulfilling the requirements of disclosure and competence, which are more easily institutionalised. An example to illustrate effective consent is a lease agreement. In order for the lessee to consent to the agreement, they must first be judged competent to make the decision (that is, sufficiently mentally sound, not a minor, etc.), then the terms of the agreement need to be disclosed to the lessee, at which point the lessee makes their decision to abide by the terms (and gives informed consent to do so), or refuse the terms (making an informed decision not to consent). The same applies to the lessor. If the terms are consented to, the lessee and lessor are then bound by law to uphold their side of the agreement. The history of legislation surrounding informed consent has relied on the comparative enforceability of the concepts of disclosure and assessment of competence, with much literature surrounding the latter in particular. Legal institutions in the United States of America have incorporated the basic structure of effective consent into legislation along with appeals to autonomy and voluntariness, but not enough for it to satisfy the autonomous authorisation form of consent that Faden and Beauchamp put forward as a goal for informed consent.
Disclosure in effective consent refers to the release of information to a consenter by a consent-requester. In medical ethics, this usually means a full list of mechanisms, risks, and benefits of a particular procedure or similar, as well as any alternatives. It is usually considered that the more information there is, the better equipped the consenter will be to make a decision. It seems to me that there needs to be some sort of presupposition of autonomy in this theory, because in order to come to the point of making a decision at all, the consenter needs to be an autonomous person making an autonomous decision action, but Faden and Beauchamp reject the derivation of this theory from autonomy. In fact, their argument states that effective consent ``is a policy-oriented sense whose conditions are not derivable solely from analyses of autonomy and authorisation, or even from broad notions of respect for autonomy'' (p. 280) and that requirements for this sort of informed consent ``typically do not focus on the autonomy of the act of giving consent (as autonomous authorisations do), but rather on regulating the behaviour of the consent-seeker and on establishing procedures and rules for the context of consent'' (p. 280). This argument is thus a little misleading, since effective consent ultimately relies on a certain definition and requirement of autonomy because a decision based purely on the consent-requiring party's disclosure of information is not valid on its own. Although they state that autonomous authorisation can occur within effective consent, they do not specifically mention an effective consent situation that would be considered valid without the decision ultimately being autonomous in some regard. They also appeal to competence as an assessment of autonomy, which further rules out an autonomy-free sense of informed consent. Thus the effective consent model does in fact require derivation from and reliance on autonomy as a key concept, but it does not focus on autonomy in the same way that the autonomous authorisation model does.
Competence on the whole is a complicated concept, with varying methods for assessment depending on the context. There is much confusion over the difference between general competence and specific competence (or incompetence!), according to Faden and Beauchamp, and the levels of competence required for completion of a particular task. To attempt to overcome this, thresholds are usually established depending on the activity and the abilities required to perform it, and then, ideally, an empirical test is performed to determine the competence of the individual based on these thresholds. In the medical fields this usually involves individual assessment of each consenter, through tests, interviews, or other mechanisms depending on the context and the sensitivity of the situation [Faden & Beauchamp, 1986]. The sorts of tests seen in information technology situations are usually tests dealing with age restrictions or locality restrictions and ones making sure that the user isn't an automated response `bot'. Tests of age or location are quite rare, and are usually easy to fool by simply entering in incorrect information. It is highly unlikely that these sorts of tests would pass any sort of competence threshold according to this theory, which highlights the difficult nature of competence assessment, especially in information technology situations, where it would be expensive, time consuming, and tricky to automate.
It is not only Faden and Beauchamp who find the problem of assessment of competence tricky. The problem of dealing with incompetent patients stems back to the medical ethical conflict between a doctor's duty of care and the idea that ``every person's body is inviolate'' [Sullivan, 1988]. According to Sullivan, the British law states that treatment of patients unable to give their consent is permissible within the boundaries of that which was deemed ``acceptable in the ordinary conduct of everyday life''. Any other violation of person is deemed battery. However, Sullivan argues that the framework for dealing with mentally incapable patients is not well-established enough to determine the proper conduct when dealing with medical procedures for incompetent patients. Brooke argues that there is enough to cover the requirements for doctors to treat mentally incapable patients within common law without being concerned with potential charges of battery [Brooke, 1988]. As it is, however, there is a lot of debate about the appropriate sorts of exceptions that need to be made when dealing with patients incapable of consenting [Brooke, 1988,Sullivan, 1988]1.13
Ideally, Faden and Beauchamp wish to consolidate these two theories, using the autonomous authorisation theory to use effective consent procedures and policies as a component of an ultimately ``sufficiently autonomous'' informed consent decision. This split theory is useful as a descriptive tool to look at uses of consent and current consent strategies, and offers some good practical insight into applications of the various concepts that make up informed consent in the autonomous authorisation and effective consent senses of informed consent. Although they reject the idea that a fully informed consent action or a ``true'' informed consent action can be attained, their aim for sufficiently autonomous informed consent actions is quite idealistic in nature, since it is difficult to accurately assess how much is sufficient.