Informed Consent: Using Behavioral Science to Make It Easier to Accept … and Easier to Nullify at the Court?

Abstract

Abstract

This article is about perceived safety and its impact on liability and insurance. In the framework of private commercial human spaceflights, spaceflight participants (SFPs) are required to sign an informed consent to fly. Operators have to inform SFPs both orally and in writing comprehensively on the risks of spaceflight, so that the latter assume the risk of flying and the former are exonerated from potential liability. Behavioral science has proven that people's risk perception depends on various factors. Considering these factors when providing information to SFPs can facilitate their acceptance of the risk. The article consists of two parts. First, it explains the factors that influence risk perception and suggests methods to reduce the perceived risk of SFPs. Potential SFPs will find spaceflight less risky if they associate flying with vivid positive images and feelings; consider spaceflight as a pioneering activity with significant benefits for society and themselves; are convinced that they participate voluntarily in the activity and can change their mind any time before the flight at a reasonable cost; are given the chance to familiarize themselves with the flight through training and simulation; and do not doubt on the trustworthiness and sincerity of the operator and its employees, and private spaceflights are exposed to positive media coverage. Second, this article explores the impact of using such methods on the validity of the informed consent, that is, whether such methods could be deemed a form of fraud or misrepresentation. This affects both the operator's liability, because only a valid informed consent can exclude liability, and its insurance coverage, since insurers do not cover liability for fraudulent acts. It is submitted that most of the times such methods will be a legal form of marketing, upon condition that operators provide all relevant information to SFPs in a written and legible form, give them adequate time to think on the risks, and enable them to withdraw from the contract at any time before the flight with a partial ticket refund.