Michael Palmieri (University of New Hampshire School of Law (formerly Franklin Pierce Law Center)) has posted Consent Without Continuity: Psychedelic-Assisted Therapy and the Structural Failure of Informed Consent Doctrine on SSRN. Here is the abstract:
American informed consent doctrine rests on an unexamined premise: the stable-agent assumption—that the patient who authorizes a medical intervention and the patient who experiences its consequences share a continuous evaluative framework. Materiality doctrine presupposes this continuity; causation doctrine embeds it; capacity doctrine assumes it. For most of modern medical practice, the assumption held because treatments did not alter the cognitive architecture through which patients assess risk.
Psychedelic-assisted therapy disrupts that continuity. Compounds such as psilocybin and MDMA, now administered under state regulatory frameworks in Oregon and Colorado, produce documented and sometimes durable changes in patients’ values, self-concept, and evaluative frameworks—not as incidental side effects but as intended therapeutic outcomes. When a treatment transforms the cognitive architecture through which risk is assessed, the temporal bridge between the consenting self and the experiencing self collapses.
This Article proposes a dynamic consent model comprising four components: pre-session identity-impact disclosures with a meta-disclosure acknowledging the structural limits of pre-treatment consent; staged reaffirmation checkpoints across post-treatment intervals; integration-phase consent validation; and longitudinal documentation reforms. Without reconstruction, materiality lacks a stable decisional perspective, causation lacks a stable counterfactual subject, and capacity assessment fails to account for a treatment designed to alter the cognitive framework it purports to assess.