The Problem is Choice

A Consequentialist Formulation of Autonomy in Clinical Medicine And a Consideration of Medical Paternalism

by

Gabriel N. R. Drapos

Submitted in partial fulfillment of the requirements for the degree of Bachelor of Arts with Honors in Philosophy at Harvard University.

Cambridge, MA

December 4, 2013

“It is with government, as with medicine. They are both but a choice of evils.”

- John Stuart Mill, “Principles of Legislation” (1830), Chapter X.

0. Introduction.

Informed consent is a practice in clinical medicine of ensuring patients in medical procedures

are fully aware of their medical options and the respective risks and rewards of each option,

at which point the patient authorizes treatment, permitting physicians to act on them. In

ancient Greece, such a practice was viewed as detrimental to the well-being of the patient, as

it would erode the patient’s confidence in medicine and his doctor. Better by far, the Greeks

thought, to remain in blissful ignorance while the physician set to the task of curing one’s

ailments.1 The consensus about the role of the patient in the medical process—whether (and

to what degree) the patient should be an active participant in his own treatment—has evolved

slowly but surely toward a modern status quo where the patient is the final arbiter of his own

medical treatment.

While patients in the United States have had a legal right to determine the course of treatment

by giving and withholding consent since 1914, the physician’s duty to ensure that the patient

was suitably informed about his choices was not made explicit until 1960. In Schloendorf v.

Society of New York Hospital, Supreme Court Justice Benjamin Cardozo, writing the majority

opinion, concluded, “[E]very human being of adult years and sound mind has a right to

determine what shall be done with his own body…”2 This was further codified in the first

explicit discussion of informed consent in Salgo v. Leland Stanford Jr. University Board of Trustees

in 1957, where the sovereignty of the patient was upheld on the notion that forced treatment

1 Peter M. Murray. “The History of Informed Consent.” Iowa Orthopedic Journal. 1990; 10: 104–109. 104. 2 Murray, 104.

was battery. Finally, in Natanson v. Kline, a negligence standard was applied to the physician,

with the rationale being that a patient, in order to truly ‘determine’ his own course of treatment

(in the sense in which Justice Cardozo used the term), required thorough-going self-

determination.

I have briefly outlined the legal history of informed consent in order to provide a framework

of the ethical evolution of the doctrine’s status quo over the last hundred years. Justice

Cardozo was doubtlessly asserting the right to consent via an argument from autonomy, an

argument that was upheld and fleshed out in Natanson’s ‘self-determination’ assertion. The

individual’s autonomy (and not simply a right to self-defense) has taken center stage as the

chief motivation for ensuring that the patient, not the doctor, is the final arbiter of medical

decisions.

While this justification has an apparent appeal, such legal guardrails are not enough to ensure

that the well-being of the patient remains the doctor’s cardinal pursuit. The law paints with a

broad brush and, even if its ethical foundations turn out to be sound, physicians must

understand the normative framework on which the law is built in order to abide by the spirit

of the rules in situations where answers are elusive or morally complex. These legal

protections must therefore be buttressed by a cogent ethical framework that ensures the

greatest benefit to the patient.

The failings of a legal scheme without the backing of a strong ethical understanding (no matter

how carefully laid out such a scheme may be), are predictable and evident. In a 2009 op-ed

for the New York Times, Dr. Pauline Chen explains the difficulties she confronted in her

journey to understand how best to ensure the patient’s well-being through informed consent:

Pete looked away from me and stared at the consent form. Yet even as I watched his brows knit together, his eyes widen then wince, I kept on talking. I had gone into my inform consent mode — a tsunami of assorted descriptions and facts delivered within a few minutes. If Pete had wanted me to pause and linger over something, I never knew. He couldn’t get a word in edgewise.… Pete signed the consent. But as he took the pen to paper, I couldn’t help noticing the tremor in his hand and the pall that had suddenly descended upon the room and our interaction.3

Dr. Chen’s testimonial should serve as a likely description of the status quo among a large

portion of the physician community. Consider that the common terminology among

physicians and nurses is ‘to consent the patient’. Linguistically speaking, this phrasing

represents a relationship where the patient is still the object; the verb ‘to consent’ implies an

act done to the patient and a barrier to treatment, a legal requirement that must be completed

before getting down to the real business of treating the patient’s physical ailment. As seen in

Dr. Chen’s anecdote, this neither helps the patient avoid harms nor (if we are to accept the

notion of degrees of autonomy) does it improve her autonomy in any meaningful way. A

better solution should be sought out.

Such a solution lies in constructing a better understanding of the normative weight and

position of autonomy in the physician/patient relationship. Since the standard of informed

consent arose from a history of precedents and jurisprudence, it is often conceived of as a

simple side constraint on action: the patient’s consent (justified by autonomy) is a barrier to

other actions, which are the goal. By constructing a principle of beneficence which takes

into account that the autonomy of the patient is a good—which interacts with other

goods that comprise the well-being of the patient—we change the normative character

of the act: informed consent becomes about respecting the autonomy for the patient

3 Pauline Chen. “Treating Patients as Partners, by Way of Informed Consent”, The New York Times, July 30, 2009.

because the physician is trying to improve the patient’s well-being, and improving the

patient’s autonomy is necessary to achieve that goal.4

Why do we need a better ethical framework as opposed to, say, better training of doctors?

Because better training in an incomplete or flawed ethical system will provide only incomplete

or flawed decisions, albeit ones that adhere more accurately to the system in which physicians

are trained. Simply put, the nearly absolutist stance on the inviolability of patient autonomy

that pervades much of modern thought on medicine is both insincere and normatively

unjustifiable. The distinction our society draws between allowing members of society to buy

whatever food they wish (even those foods which are demonstrably bad for them—and lethal

in the long run), and yet mandating prescriptions from a physician for most medications,

already demonstrates a belief that a separate sphere of ethical conduct exists, in which patients

do not have the same degree of freedom to which citizens at large lay claim in the rest of

society. By training physicians in a more nuanced, ethically justifiable vision of the role of

patient autonomy in clinical medicine, we can help engender a psychological shift that will

work to the mutual benefit of patients and physicians alike.

Importantly, while such a theory may have positive psychological effects in how physicians

think about informed consent, this is not a work in behavioral psychology. Nor is this ethical

framework valuable only insofar as it improves practical interactions; it is not merely a means

to a better end. There is a normative thrust to the claim that is crucial: to be more autonomous

actors is to better ourselves in important ways and the current view of autonomy as understood

4 It is important to bear in mind that the physician’s desire to improve the patient’s well-being does not position the physician and patient in an agent-object relationship. The physician strives to improve the autonomy portion of well-being precisely because he respects the person as a moral agent, but recognizes that the setting is such that full agency is difficult to realize in the present.

by physicians misunderstands this value. We can thereby lay a stronger groundwork for

autonomous choice that will foster both a better understanding of the normative importance

of autonomy in the medical context and, ultimately, a more constructive relationship between

physicians and patients.

In Part I, which will make up the vast majority of the project, I establish a foundational

understanding of the physician/patient relationship. I then turn to evaluating various

constructions through which we might view autonomy. While I will settle on a

consequentialist justification of autonomy, it is crucial at this time to point out that I will be

dealing with a consequentialist view of autonomy only at the intrapersonal level—dealing with

consequentialist and deontological debates over a slew of interpersonal thought experiments

is beyond the scope of this project. My use of the term ‘intrapersonal’ may be initially puzzling,

considering that the practice of clinical medicine involves two agents—the doctor and the

patient. Yet, as I will argue, the governing ethics of clinical medicine are concerned only with

the good of the patient, and it is therefore a balancing of the components of the patient’s goods

that poses the difficult ethical questions; it is not a weighting of the good of the patient against

the good of the doctor, or any other individual. The term ‘intrapersonal’ is meant to indicate

the singular focus.5 With a complete conception of autonomy understood, I will briefly

explore what effects this might have on the permissibility of various forms of paternalism.

However, I will not spend too much time on the effects of the theory in Part I, as Part II will

ultimately serve to mitigate some of the implications of the framework I have developed. If

5 For reference to many of the interpersonal problems that arise in medicine, see James Childress’ article “Respect for Autonomy”, Hastings Center Report, 1994.

Part I is the more theoretical, idealized ethical discussion, Part II examines the practical effects

that justifying our theory as part of an implemented practice of clinical medicine will have.

I

The Nature and Value of Autonomy in Clinical Medicine

In order to understand the value of autonomy in the medical context, it will first be necessary

to determine the purpose of clinical medicine.6 Not only will this help us root out why

autonomy is valuable in serving the purpose of medicine, it will further serve to justify the

importance of autonomy in the sphere of medicine—lest we should prove its importance in other

spheres of life, only to miss the fact that some special characteristic of the patient/physician

relationship preempts its value there.

I.1 What is the purpose of clinical medicine?

When attempting to determine the purpose of a practice, it is often difficult to determine the

level at which to start. The purpose of law, for example, is to uphold justice; but must a

successful definition of law also define justice? And if so, then the pillars of virtue, moral

worth or consequences on which justice stands as well? Bearing this in mind, I will try to keep

my claim to a suitably confined nature.

The purpose of clinical medicine is for a physician to promote the medically-relevant well-being

of the patient by certain medical means.7

6 I intend the term ‘clinical medicine’ to be descriptive of the physician/patient relationship in situations where the patient’s health is of immediate concern. This is in contrast to, for example, medical research, which may involve patients, where the patient’s role in the relationship is in part instrumental for other goods external to the health of the patient. 7 I use the terms ‘medically-relevant’ and ‘medical means’ to highlight the fact that the physician is concerned only with improving a certain set of goods that are relevant within the sphere of medicine. He is not, for instance, concerned with making sure the patient has more money (non-medically-relevant), and would therefore not be expected to give the patient some of his own wealth (non-medical means).

This claimed purpose places us in tension with the theory articulated by Tom Beauchamp and

James Childress in their Principles of Biomedical Ethics. It therefore leads us to a revised version

of Beauchamp and Childress’s Principle of Beneficence:

The Principal of Beneficence*: The patient’s well-being is sole justification for the course of action

a physician elects for his patient.8

This is straight forward enough. The complication arises when we attempt to define ‘well-

being’.9 As a starting point, we should briefly trace the history of what well-being has come

to mean in the medical context. The normative weight of the current consensus is certainly

dubious, but it should serve to launch our discussion.

In 1979, the National Commission for the Protection of Human Subjects of Biomedical and

Behavioral Research published a report titled Ethical Principles and Guidelines for the Protection of

Human Subjects of Research (or, simply, the Belmont Report). At the same time the report was

published, two philosophers, Thomas Beauchamp (who was on the board that published the

Belmont Report) and James Childress, published a similar work whose focus was mostly on

clinical medicine—The Principles of Biomedical Ethics. This work offered four principles for the

purpose of medicine that would guide medical treatment (both research and clinical); they are

now standard reading for all medical students. The four principles are: (1) respect for

autonomy, (2) beneficence (mindfulness of a risk/reward ratio in treating patients), (3) justice

8 While I have used the term ‘elects’, at this point in the dialectic we have yet to prove anything about the degree to which what the physician ‘elects’ to do should inform, guide, or coerce the patient. I therefore intend the term’s meaning to remain vague at this point. 9 Again, we are only concerned with well-being as relevant to the sphere of clinical medicine. There are certainly other goods that are part of a person’s general well-being, but the goods we incorporate into the patient’s well-being here are the only goods that should inform our understanding of well-being in the medical context.

(the proper allocation of costs and benefits for medical treatment among members of society),

and (4) non-maleficence (not committing unnecessary harms).

The concept of well-being has understandably developed serious complications when any of

the four principles have conflicted. It is further complicated by conflicting ideas about the

extent to which well-being should be understood to prioritize physical health or a more holistic

understanding that includes quality of life. A common criticism leveled at Beauchamp and

Childress is that, since their principles are essentially stipulated, there is no way to determine

normative priority when they come into conflict.

Consider this example of such a conflict. A doctor knows her patient has an aggressive form

of cancer that rarely responds to chemotherapy and radiation. She has two possible

recommendations for treatment: she can either recommend aggressive chemotherapy and

radiation, despite the grim rate of effectiveness, or she can suggest palliative care to make the

patient’s final months more comfortable. Were the physician to believe the principle of non-

maleficence should hold the most weight, causing the patient physical harm through

chemotherapy would be prohibited. Yet, if the physician thinks of the principle of beneficence

as dominant, and as applying only to patient physical health, she would likely choose to push

strongly for the aggressive treatment plan, because her understanding of the ‘patient’s well-

being’ as physical health and survival demands such risk for the possibility of success.

On the other hand, were the physician to think of the ‘patient’s well-being’ in a more holistic

sense, where the patient’s well-being is some combination of patient physical health, emotional

well-being, realization of goals and maintenance of lifestyle in accordance with personal values,

her recommendation might be very different. She might instead pose to the patient all of the

risks and potential rewards of the former option and, depending on her hope for success in

treatment, may indeed feel comfortable suggesting this as the medically sensible option. But

in the course of this process, she would be listening to the patient’s wishes, desires and

expectations, and use this information to inform her view on what would be the best

recommendation. The patient’s values become part of the doctor’s considerations for what

she believes to be the best treatment plan. Crucially, the patient may still elect to pursue a

second- or third-best option; the physician’s suggestion is just that, only a recommendation.

The physician both accommodates the patient’s values in her recommendation and respects

the patient’s wishes when the patient decides to follow another health plan—the physician

does not command. As a result, not only has the physician introduced notions of well-being

that expand beyond pure physical health to quality of life, she has also recognized claims of

the patient to determine the course of his treatment.

While this process requires care and sensitivity, and no simple rule can guide the physician’s

interactions with her patient in the course of the discussion, it raises an important question:

how do we balance the concerns that the physician must consider in this process?

As I see the problem, these are the competing claims that arise: (1) the physician must be

concerned both with the patient’s physical health and his quality of life, and (2) the physician

must respect the patient’s autonomy as justification for his being final arbiter of medical

decisions. This description makes it seem like the physician’s ability to improve the patient’s

well-being is limited by the patient’s autonomous choices. However, this perception depends

a great deal on how we understand well-being. The understanding I put forward alters the

implication of weighing well-being ‘against’ autonomy.

Patient’s well-being: A collection of cardinal goods that necessarily includes considerations of

patient physical health (including a more modern concept of ‘quality of life’) and patient

autonomy.

If the practice of clinical medicine is governed by the Principle of Beneficence* and the

Principle of Beneficence* is concerned only with the well-being of the patient, there is no

limiting factor on the physician’s ability to prioritize the patient’s well-being, because the

patient’s autonomy is a part of the well-being that the physician intends to improve. If we

accept this construction,10 then considering how to prioritize beneficence versus respect for

patient autonomy is a misguided way of viewing the problem, as concern for patient autonomy

is part of the concern of beneficence.

Now, one might argue that I have simply made a cosmetic change by ‘moving’ autonomy into

the definition of well-being. It is no longer a constraint on the promotion of well-being but it

nonetheless has the same effect in limiting the competing goods that comprise well-being.

However, if this construction of well-being sits on a stronger philosophical foundation and

leads to the most normatively plausible outcome (which both explains best the current

standard of relationships between physicians and patients, and also suggests necessary

improvements), then the conception is much more than a cosmetic difference. Moreover, it

implies that the value autonomy holds arises out of the ways in which it improves the patient’s

well-being, as we shall see.

I.2 How should we understand the discussion through a consequentialist lens?

10 Though I will justify it in the coming pages.

Before we can determine whether this construction is stronger we must understand the moral

framework in which we are working. How should we conceptualize the Principle of

Beneficence* in a consequentialist framework? Turning to John Stuart Mill’s discussion of

justice in Utilitarianism, we find strong parallels between justice as a guiding principle for society

and beneficence as a guiding principle in clinical medicine. This parallelism can provide a

helpful framework for our discussion.

In establishing a theory of justice, Mill distinguishes between perfect and imperfect duties.11

A perfect duty is an obligation with a correlative right for a corresponding party. When it

comes to perfect duties, I, as the recipient of the obligation, can justifiably claim that at a given

time or in a given situation, you have an obligation to perform an act for me. For Mill, these

rights are valuable because they improve the value of a practice (the state) that is necessary for

a better life (e.g. better than the state of nature).

An imperfect duty is one that has no correlative right for a corresponding party. As Mill

explains it, “The act is obligatory, [but] the particular occasions of performing it are left to our

choice.”12 In other words, it is generally thought that, at any given time, it is a good thing to

perform the acts demanded by imperfect duties, but I, as a potential recipient or beneficiary

of the act, cannot say that in a given situation x at time y, you must perform the act (that is, you

have wronged me by not performing it).

In the medical context, and specifically with regard to the relationship between physician and

patient, beneficence must surely be viewed as a perfect duty. Why should this be true? In

11 While Immanuel Kant formulated the distinction between perfect and imperfect duties first, I cite Mill to remain within the framework of consequentialism. 12 John Stuart Mill. Utilitarianism (1863). Chapter 5 (“On the Connection between Utility and Justice”).

order to justify the perfect duty, we must return to the justification of the practice: preserving

or improving the well-being of a patient. If a physician is caring for a patient, the physician

has entered into a specific type of relationship—the practice of clinical medicine. That

relationship can only be valuable if it guarantees a certain set of correlative duties and rights

that constitute a practice which tends to have valuable outcomes (in this case, the well-being

of the patient). This is, at its core, a claim for an agent-centric duty based on the role

necessitated by the agent to justify the consequences of the practice. The doctor has those

obligations because he is a doctor, and clinical medicine depends on there being an agent qua

doctor to fulfill those obligations.

Imagine a world in which a physician had only a contextless duty to help his fellow man (who

is only incidentally his patient) and in which the patient had no corresponding rights to expect

the physician will act in his interest. Such a practice would necessarily breed mistrust. This

mistrust, in turn, would jeopardize the patient’s ability to preserve or improve her own well-

being, as she would not be able to glean any guidance or expert advice from her physician

(since she would be unable to rely upon him). As a result, she would not know which course

of action would be most beneficial to her. Such a relationship will not do. The physician must

have a perfect duty to do what is in the patient’s best interest, and the patient must have a

corresponding right to expect such care in treatment.

How are such rights justified as rights under a consequentialist framework? Why should they

not just be considered other goods, like the good of happiness, which we have no duty to

uphold? Simply put, the goods that these rights protect (whether they be justified by the

practice of justice or clinical medicine) are of such value that society should want to protect

them for all individuals. Moreover, rights are unlikely to be overruled by competing goods,

unless they conflict with other rights, because no goods besides rights are of such paramount

value. For example, a hospital might require patients to eat three meals a day, because it is

generally good for patients to eat well and maintain their strength. This rule is a good (in that

it is good for patients to have this, as having the rule increases predictability and transparency

in the practice, etc.) but it is not a good of such import that food could be forced on a patient

who happened not to be hungry at a given meal:13 we should value the patient’s autonomy far

more than we do most hospital regulations (setting aside regulations for the patient’s own

safety, or the safety of others).

In the medical realm, well-being is a complex good consisting in a set of goods that ‘stand

higher’ than all other goods in this sphere, just as the goods that comprise justice stand higher

than all other goods in the sphere of interpersonal interactions within society. These goods

are supreme in their respective realms because they make the practice to which they pertain

justifiable and actionable: in other words, they are cardinal goods because protecting them

ensures the best performance of the practice.

Mill’s argument comes in two stages, though. He argues elsewhere that, for such goods, it is

not just that allowing ‘bad things’ to happen would be inexpedient (thereby defining those

things as bad due to the poor consequences they would bring about), it is also that the

proscription of certain activities is itself expedient. In many ways, this sounds like a

consequentialist justification of certain side constraints. While I will delve into this in more

depth in my discussion of side constraints (and again in Part II on my justification of the real

world practice), a brief point on the idea: indeed, it is possible that some of the cardinal goods

we are suggesting (e.g. autonomy) are side constraints on action, as well as goods that should

13 Barring situations involving mental health concerns, as we shall see.

be improved as much as possible. I will ultimately advocate a version of this claim, but it

cannot be defended until we establish a strong understanding of autonomy’s role in clinical

medicine.

So far I have made and defended three claims: (1) a practice must have a justification that gives

it meaning, (2) the justification of the practice of clinical medicine is the patient’s well-being,

and (3) well-being is a complex good composed of a set of patient goods that are rights because

they are of cardinal importance in medicine—that is, because defending them is necessary to

the preservation of well-being.

However, this argument does not by itself demonstrate the content of these cardinal goods

that comprise well-being. For this argument, I will assume that the patient’s health

(incorporating notions of quality of life) is an element of well-being. It seems self-evident that

the practice of clinical medicine should be concerned with keeping patients physically healthy.

However, it remains to be seen that autonomy is actually an element of well-being. In other

words, why should we view autonomy as such a cardinal good?

I.3 What is autonomy?

Before we can determine whether or not autonomy qualifies as a cardinal good, we must have

a common understanding of exactly what we mean by ‘autonomy’. It is, after all, a rather

vague notion. However, through the course of our discussion so far, we have implicitly

constructed the two main characteristics we want our definition of autonomy to exhibit: (1)

the autonomous actor has reasons for acting in a given way, and these reasons are recognized

by the actor as true and morally sound, and (2) the autonomous actor has the freedom to carry

out actions as guided by these reasons. I will refer to the first sense of autonomy as ‘moral

autonomy’ and the second sense of autonomy as ‘liberty’. In order to achieve both of these

characteristics, it will be necessary to ‘combine’ interpretations of two historic theories of

autonomy, both of which are necessary and the conjunction of which is jointly sufficient to

describe a moral agent as acting autonomously.

The Kantian view of autonomy is based on the notion of the self as law-giver for one’s own

actions. Acting autonomously in this sense is acting in accordance with formulated laws that

dictate how one should act, and it is the process by which each individual adopts these laws

that makes him or her act autonomously in the relevant sense.

Yet moral autonomy does not capture the idea of a person’s having control over his or her

life. A slave may be autonomous in the Kantian sense by having arrived at a set of moral

dictates about what the good is; and living his life, to the extent that he is able, in accordance

with these dictates. He is, however, still under the control of his master. He has an idea of

what is valuable, what is good, but he may not be able to live out that idea.

To bring this home to the medical context, imagine a person who is totally and completely

paralyzed but still has mental consciousness—commonly referred to as ‘locked-in syndrome’

in the medical community. She can think, love, hate, and consider complicated moral views

in part of a process to determine what the good is, but she cannot communicate in any way

with the outside world. While she may be autonomous in the Kantian sense described above

(in that she is her own moral law-giver), she is not autonomous in a very important way: she

has no control over what happens to her life. Her doctors and loved ones may decide to treat

her in a way not in keeping with her (unknown and unknowable) desires.

Since this ‘positive’ Kantian conception of autonomy is not enough, we must incorporate the

‘negative’ conception of autonomy, more in keeping with the Millian sense of liberty. Under

this view, autonomous agents are such insofar as their actions do not suffer undue

interference, except to the extent that those actions would interfere with or harm others. As

Mill describes it, “Over himself, over his own body and mind, the individual is sovereign.”14

While this is initially a somewhat limited view of autonomy—it seems to demand only

protection against unjust physical invasion or coercion—this limitation is not what Mill

intended. As he says elsewhere, “To individuality should belong the part of life in which it is

chiefly the individual that is interested; to society, the part which chiefly interests society.”15

The sphere of respect liberty demands is broader than prohibitions on physical interference,

it is a respect for the proper range of actions an individual may make without sanctions or

interference by others.

The notion of the ‘sovereign’ that Mill suggests is apt. The individual is akin to his own nation-

state in many ways: as long as his actions do not venture beyond his borders, he should not

suffer interference.16 This view of autonomy is in keeping with much of the current literature

in bioethics. As Thomas Beauchamp and James Childress wrote in their definitive work,

Principles of Biomedical Ethics, “The autonomous individual acts freely in accordance with a self-

chosen plan, analogous to the way an independent government manages its territories and

establishes its policies.”17

14 John Stuart Mill. On Liberty. Batoche Books, 2001. 13. 15 Ibid, 69. 16 Except, as I have been arguing, in instances where autonomy as a good is outweighed by other goods of a similar cardinal echelon. 17 Tom Beauchamp and James Childress. Principles of Biomedical Ethics. Oxford University Press. 2008. 99–100.

I.4.a The positive argument: why autonomy is a good.

Our ability to make autonomous choices makes our lives better in a crucial way. Consider

Nozick’s famous ‘experience machine’ thought experiment.18 The argument roughly proceeds

like this: if pleasure is the good, then one should wish to improve the amount of pleasure in

one’s life. If one could improve the amount of pleasure by plugging into an ‘experience

machine’—a device psychologists have created that produces the most blissful experiences,

which seem indecipherable from real life—then one should take that opportunity. Yet this

seems like a horrible waste of a life; it is a pretend fantasy land with no discernable legacy or

reality. Therefore, since we abhor the notion of living our lives in this false world made simply

of happiness, pleasure cannot be the only good.

There are additional implications of the experience machine thought experiment beyond the

obvious conclusion that experiential pleasure cannot be the only good with which we are

concerned, and these implications point towards the value of autonomy. Nozick suggests

three connected ideas: "It is only because we first want to do the actions that we want the

experiences of doing them…. Someone floating in a tank is an indeterminate blob…. There

is no actual contact with any deeper reality, though the experience of it can be simulated.”19

While analysis of the thought experiment often stops at the reality/fiction distinction, I would

argue a common thread throughout these suggested reasons is that the false nature of the

experience cheapens the value of it because we want to do actions, not just experience them.

Why should the experience of really doing an action be more meaningful than the experience

of an illusion of the action? Because the doing of an action necessarily involves a choice to

18 See: Anarchy, State, Utopia, by Robert Nozick. Basic Books, 1977. 19 Robert Nozick. Anarchy, State, Utopia. Basic Books, 1977. 43.

do that action, and that choice represents our autonomy, our actual interaction with an exterior

world in a way that has real consequences, which is crucial to expressing who we are.

The value of autonomy is inextricably connected to our relationship with reality (experiential

or otherwise). For similar reasons, we do not want to be ‘indeterminate blobs’, and the way

in which we make determined our otherwise indeterminate nature is by expressing our values

through our choices; they represent us and therefore define us. Our sense of identity is

essential to finding value in the experiences of our lives, and this identity can exist only if we

make choices and formulate opinions that come to define us—both our sense of selves and

our appearances to others. Indeed, our lives would be worse if we could not make such

choices,20 and this is why autonomy must be a part of our well-being.

This view of autonomy does more than characterize it as a good. It gives it cardinal

importance, placing it in a certain echelon of goods. Our lives would not be the same in a

very important way—that is, not have the same value—if it were not for our ability to express

ourselves to ourselves and others, and ground ourselves in reality by making choices that

simultaneously define us and have an impact on the exterior world. Certainly this seems to be

a good worthy of a special place and respect. To accept my argument is only to accept that

our ability to construct reasons for acting and carry out those reasons is a valuable component

of living a good life.

However, it may be that autonomy is a cardinal good in the broader sphere of general life, yet

has no special normative force in the sphere of clinical medicine, and as a result does not

20 This is not to say that our lives are worse for every autonomous choice we sacrifice the ability to make. For instance, I would not argue that one’s life is worse because he has joined a society that bars his ability to steal, even if this is technically a removal of choice that lessens his autonomy, if only in the strictest understanding of the definition we are working with.

deserve special recognition as one of the goods that comprises well-being and therefore

informs the Principle of Beneficence*. In order to show that autonomy demands special

concern in the physician’s decision-making process, and that respect for autonomy is therefore

required by the Principle of Beneficence*, we must show how concern for the well-being of

the patient seems worthless without being concerned for the patient’s ability to make a choice.

Consider this example.

Christian Scientist. At Time A, a young man is brought into the emergency room after a car

accident, completely unconscious, and with no friends or family accompanying him; his

identity is therefore unknown. A doctor dutifully resuscitates the patient, and in the course of

this life-saving act determines the patient is in need of a blood infusion, which she administers,

saving his life. We would surely say that the doctor has done her duty as a physician.

Let us now say that the extent of the patient’s injuries was more than was originally anticipated:

the patient has a damaged liver and it becomes evident that he will need a transplant. However,

prior to the transplant, at Time B, the patient wakes from his coma, and declares his identity as

a Christian Scientist21 and demands to be released from the hospital. Suddenly, forcing

treatment on the patient seems unacceptable (though we will return to this discussion in more

detail later). The doctor, who was at Time A fulfilling her duty of beneficence to the patient

by treating him, might at Time B be harming the patient if she forces treatment, potentially

violating that very same duty of beneficence, even though the act of medical treatment cannot be said

to be appreciably different at Time A than it is at Time B. That is, it seems an implausible claim to

suggest that there is any morally relevant distinction between a physician saving a patient’s life

through replacing lost blood and a physician saving a patient’s life through a liver transplant.

21 A member of the Church of Christ, Scientist—a religious sect that does not believe in the use of medicine.

The changed moral status of the act results from the identification of the patient’s values and

a necessity to respect those values.

Autonomy is clearly a part of the concern that guides the permissibility of a physician’s action.

Beneficence, then, cannot be concerned with only a single aspect of patient well-being. Or,

put another way, autonomy is likely part of the well-being with which beneficence is

concerned. In deciding whether or not to treat the Christian Scientist with a liver transplant

he does not want, the physician is choosing between two harms: the first harm is the traditional

bodily harm that is obviously a central part of healthcare (e.g. the harm to his body caused by

a failing liver); the second harm is against the patient’s autonomy. Whether or not this harm

can be justified remains to be seen.

I.4.b The negative argument: why autonomy is not a traditional side constraint.

In the previous section, I argued that autonomy is a good in the more general context of life

and showed that it should be taken into account in decisions of medicine. In this section, I

argue that it is not a side constraint as traditionally conceived. While I will ultimately suggest

a view in which autonomy is a good with a ‘threshold side constraint’ component, it cannot

be a simple side constraint22 because such a claim would imply a patient’s autonomy cannot

be balanced against other cardinal goods. Autonomy can be balanced in such a way.

In a section of Anarchy, State, Utopia, on side constraints, Nozick explains the distinction

between moral limitations on action based on a consequentialist theory, and similar (in focus,

not justification) limitations based on a side constraint theory, writing, “The side constraint

view forbids you to violate these moral constraints in the pursuit of your goals; whereas the

22 Where I mean ‘simple’ to indicate the sort of side constraint described by Nozick below.

view whose objective is to minimize the violation of these rights allows you to violate the

rights (the constraints) in order to lessen their total violation in the society.”23 In other words,

a side constraint is an absolute ban on certain types of conduct in virtue of a right that is

inviolable. We cannot sacrifice a side constraint now in order to make up for it with ‘more’

later, though this is permissible with goods under consequentialist theories that strive to

improve such goods.

Why might one prefer a side constraint view of autonomy? In answering his own question,

“Isn't it irrational to accept a side constraint C, rather than a view that directs minimizing the

violations of C?” Nozick explains, “Side constraints upon action reflect the underlying Kantian

principle that individuals are ends and not merely means; they may not be sacrificed or used

for the achieving of other ends without their consent. Individuals are inviolable.”24 As

discussed above, then, sacrificing another’s rights for the group, even if that might improve

the good overall, is impermissible on a side-constraint view, because it would use a person as

a means to an end (in this case, the good of the group).25

Focusing on the intrapersonal case: according to the side constraint view, one cannot prevent

A from doing x, when A has a right to do x, just because one knows that by preventing A

from doing x right now, A will have a greater opportunity to do x in the future. In other

words, one cannot infringe upon a side constraint in the present in order to better the same

person’s position in the future. This is one of the crucial differences between viewing respect

for autonomy as a side constraint and viewing it as a good to be promoted.

23 Nozick, 29. 24 Nozick, 31. 25 In the sphere of clinical medicine, where the good of the patient is the only concern, this is not relevant for our purposes.

Nozick’s reasoning is less intuitive here than in concerns of interpersonal justice. While we

are likely repulsed by the idea of overruling an individual’s rights or violating certain liberties

in order to benefit a group, I do not think such a similarly strong blanket judgment exists in

cases where we overrule or disregard an individual’s rights and liberties in the present in order

to make the same individual better off in the long run. Such trade-offs—between an agent’s

autonomy and other cardinal goods of his well-being—are constitutive of the sphere of

paternalism, and we cannot write off paternalism so easily, without seeing whether it might

not be justified in some cases. Such paternalism is in many ways the autonomy equivalent of

amputating a gangrenous leg to save the body. The doctor who acts paternalistically takes

away a bit of the patient’s autonomy, perhaps even forcefully, in order to improve the patient’s

well-being later. Certainly, it is a harm, but it remains to be seen whether or not it is a

worthwhile one.

Why might one be hesitant to view autonomy in the physician/patient relationship as a side

constraint? If we can devise a case where the physician should go against or subvert a patient’s

will, it would seem difficult to justify autonomy as a side constraint. Consider a case where a

patient is requesting care that is clearly not in the patient’s best interest.

Suicide. A patient intends to inject herself with a lethal substance for the purpose of ending

her own life, and requests her doctor to provide her with a syringe of some sort of poison.

She has decided she wants to die not because of a traumatic experience, nor because she is in

any state of chronic pain or suffering, nor as a result of anything else that could lead us to

question her state of mind; but instead after having come to a conclusion about the value of

her life, a conclusion which she came to after some time and deliberation.26 I contend that it

is impermissible for the physician to give the patient the syringe, even though the patient

believes that being given the injection will improve her well-being and the physician limits the

patient’s autonomy by not providing it.27

While I will later paint a fuller picture for why the physician should feel justified in withholding

the syringe, I now present a simple version of the moral landscape. In not providing the

syringe, the physician is implicitly arguing that one of the other components of well-being was

sufficiently compelling to overcome the requisite respect for patient autonomy. Perhaps he

believes disregarding the wish of his patient will keep her alive longer and thereby improve

overall autonomy, even giving her the opportunity to arrive at a better judgment regarding the

value of her life.

I anticipate two objections. First: it is only because of the extreme nature of the example I

have provided that it seems acceptable for the physician to ignore his patient’s wishes. That

is, it is only because it is a matter of the patient’s life or death, and this is such an extreme

outcome it surpasses a threshold of competing goods beyond which the side constraint of

respecting patient autonomy no longer holds. But the claim holds even in a far less extreme

situation.

Impotence. Imagine a male patient who goes to his doctor complaining of impotence. His

physician knows that, since the patient has hypotension (low blood-pressure), prescribing a

medication to remedy the problem is not an option, as it will expose the patient to extreme

26 One might suggest that the mere fact she wants to kill herself demonstrates she is not of sound mind. I find it unappealing to draw such a blunt line in the sand around decisions of a certain content. The reasons we have for acting are relevant. 27 See Section I.4.c for concerns about how this is limitation of autonomy.

health risks. He also knows that his patient is unaware of this contraindication and so will not

object to taking the medication. Finally, he knows that his patient has a history of debilitating

and heretofore untreatable anxiety and, since there is no other medical indication for his

problem, he deduces that the condition is almost certainly of a psychosomatic origin. Finding

himself in a bit of a Catch-22, he elects to tell the patient he is prescribing him a medication to

treat his impotence, but in actuality only prescribes him a placebo. He believes that the placebo

effect will be sufficient to alleviate the issue and will also avoid putting the patient’s health at

undue risk. Informing the patient of the problem and the fact that he is receiving a placebo

prescription, thereby respecting the patient’s autonomy, would actually limit the physician’s

ability to help (and, perhaps, limit the patient’s future autonomy by preventing him from being

able to have a healthy sex life).28

This seems to be a case in which it is permissible to disregard a patient’s autonomous request

for medication, and prescribe him a different ‘medication’ without the patient’s consent. If it

turns out that the patient’s problem is not psychosomatic and the placebo treatment is not

effective, little has been lost. The physician could then explain the uniquely difficult situation.

I reject as overblown arguments suggesting that the deception will somehow undermine the

aggregate of patient/physician relationships and be an overall harm to the practice of clinical

medicine. I believe that, were such a revelation to be made to the patient, most reasonable

people would understand that the physician was trying to improve the patient’s well-being,

and this positive intention would clearly outweigh concerns with the physician’s relatively

innocuous methods.

28 I credit this example as being inspired by one John Arras developed in his essay “Antihypertensives and the Risk of Temporary Impotence: A Case Study in Informed Consent” (though I have altered it to better suit my purposes).

And yet Impotence, much like Suicide before it, seems to involve the physician limiting the

autonomy of the patient—even though the physician in Impotence actually disregards the

patient’s autonomy via an act of manipulation, while the physician in Suicide disregards the

patient’s autonomy by refusing to act in accordance with the patient’s wishes. The physician

in Impotence harms patient autonomy for the purpose of avoiding bodily harm (not aggravating

the hypotension syndrome), improving patient health (alleviating the psychosomatic condition

affecting the patient), and improving patient autonomy (helping the patient exercise his ability

to have physical relationships with significant others).

A proponent of the side constraint view of autonomy may nonetheless suggest that Suicide and

Impotence were constructed to arrange the costs in avoiding limiting patient autonomy in such

a way that they reached a threshold beyond which the side constraint no longer holds. This

claim would be revising the concept of autonomy as a threshold side constraint: there comes

a point at which it would be so absurd to abide by the side constraint that it no longer serves

as a side constraint (e.g. not slapping an individual, even though it would save ten lives, just

because the individual has a right not to be slapped). However, I have a hard time imagining

that Impotence could possibly have reached such a threshold. Or, if it did, I would question the

distinction of threshold deontology from its more consequentialist cousins. It would seem to

me that such an instance of a threshold side constraint, with the threshold seemingly set so

low, would be indistinguishable from a method which weighs competing values against each

other. Perhaps the analogous consequentialist method might weigh certain types of values as

inherently more valuable (akin to an exchange rate between currencies), but we have already

accommodated such a hierarchical valuation of goods in this consequentialist theory with our

concept of ‘cardinal goods’.

The second objection is that it is wholly inconsistent to abide by the patient’s wishes in

Christian Scientist and not do so in Suicide, especially when the stakes are exactly the same in

each case. In either hypothetical, the ramifications of abiding by the patient’s wishes will mean

the patient’s death. I cannot yet address this objection at this point in the dialectic, as it

requires incorporating a concept introduced in the next sections, but I promise to answer it

later.

I.4.c Autonomy as both a good and a threshold side constraint.

Much of consequentialist literature focuses on maximizing values and minimizing pains. And

yet, one might reasonably object that autonomy is not as simple a good as other goods that

we might improve. For instance, one does not discount the future ability to make autonomous

decisions in the same way that one discounts other future goods, nor would one be expected

to abide by another’s forcibly taking some of his autonomy now in order to provide him more

at a later point. The reasonable person would not find acceptable a situation in which they

were forced into five years of slavery now in order to guarantee substantially greater autonomy

for five years of their life at a later date. Each autonomous decision—each instance of action

without the interference of other moral agents—is itself valued for entirely different reasons,

and this difference makes the notion of maximizing autonomy misguided. So the objection

goes.

I have shown that autonomy can be overridden by competing factors and taken this evidence

as a refutation of the notion of autonomy as a traditional side constraint. And yet there are

easily-imagined cases in which we believe that one’s autonomy should not be overruled. Can

it be that the nature of what is being done in those cases is different, even if autonomy is of

central relevance in both instances? I think so, and I believe it is because autonomy is a good,

but respect for autonomy can develop into a side constraint once interference reaches a certain

threshold of severity.

Autonomy is generally characterized accurately by our previous discussions of autonomy as a

good. It can be weighed against other goods, maximized or improved upon and sacrificed for

the sake of competing claims of well-being. Most reasonable people would be willing to give

up some autonomy in exchange for other goods of a certain value. Indeed, we regularly give

up the ability to make certain choices or do certain actions (e.g. killing people, stealing) in order

to participate in a civilized society that protects our other interests. But these are often

somewhat trivial notions of autonomy that we do not value very much—such that it even

seems silly to suggest that losing the ability to kill at random is a sacrifice of autonomy (even

if it is, in the strictest application of the definition we are using).

An even more telling example: a person might feel that being responsible for every decision

in his life has caused him too much stress, so he joins the army where he has more direction

(less control over his choices) in order to exchange it for other goods (peace of mind). He

might also sacrifice his autonomy for the period of enlistment because he knows that going

through the training that the military will provide him will, in the long run, improve his

autonomy by giving him more and truer options from which to choose. This does not seem

like a problematic instance involving ‘weighing’ autonomy as a value.

The problem arises when attempts at interfering with an agent’s autonomy in the sense above

seem to cross a certain threshold, at which point the nature of the interference has a distinctly

different characteristic. There is a problem with enslaving another person that does not arise

when a soldier enlists in the army, or when the state proscribes certain actions. It is not just a

limitation on another’s autonomy, it is an act in which one person harms the dignity of another.

Harmed Dignity: A state in which an agent’s autonomy has been compulsorily diminished by

another agent (or force, or event) in such a way that the agent is significantly worse off as a

result of the intervention. A severe enough harm to either moral autonomy or liberty is

sufficient to constitute a harm to dignity.

To highlight the significance of harmed dignity, consider what the difference between a

citizen-soldier and a slave is. Both the citizen-soldier and the slave have little control over

their own lives: they cannot leave their charge without facing severe, even mortal punishment;

they must follow the orders of their commanding officer or slave master or else risk

imprisonment, even when they might prefer, at that moment, to engage in other activities. Yet

I would suggest that the slave’s dignity has been harmed while the citizen-soldier’s has not.

The citizen-soldier volunteered to enlist, and as such made an autonomous choice that

exchanged some autonomy for other goods he valued. In contrast, the slave never made such

a voluntary choice to serve his master; his servitude is distinctly wrong and his master harms

him by forcing such a condition on him. This is because, at the moment of enslavement, the

master has forcibly diminished the slave’s autonomy to such an extent that he has placed the

slave in a state of harmed dignity.

My use of the term ‘dignity’ and my choice to use an example involving slavery are in some

respects unfortunate, because the term ‘dignity’ is often understood as carrying a certain

implication of moral worth. Someone who ‘does not have dignity’ is often someone who is

willing to debase themselves, or else is perceived by others as morally inferior in some other

way. ‘Dignity’ as used here should in no way be understood to include all of that baggage. It

should not imply a moral inferiority on the part of the harmed agent, even if such an

implication may exist subjectively from the perspective of the one doing the harming. Such

an implication may often go hand-in-hand with the act, but this is merely incidental and neither

a necessary nor sufficient condition to describe one’s dignity as having been harmed.

One might object that there are apparently-innocuous situations in which an agent’s autonomy

has been harmed that in no way seem equivalent to the act of being enslaved—e.g. a child that

is not allowed dessert because he has misbehaved. Are these situations in which the dignity

of the agent has been harmed? To this I would offer two suggestions. It may be that the child

(and an agent in any example with a similar thrust) is not a moral agent who is capable of

expressing full autonomy, and therefore limitations on it do not go so far as to harm the child’s

dignity. Taking away an adult’s dessert against his wishes certainly seems much worse by

comparison, even if the motivation is exactly the same (keeping each healthy). Yet neither

situation is as bad as being enslaved.

The other suggestion: not all instances in which an agent forcibly decreases the autonomy of

another go so far as to harm the dignity of the constrained actor. The taxed member of a state

has property which belongs to him taken away from him, and this forcibly limits his ability to

make choices about the way he governs his life, but in most cases we would not want to say it

limits his autonomy to such an extent that his dignity has been harmed. While one could

suggest the Lockean idea that he has consented to this taxation, a slew of philosophical

literature argues for why this is a difficult argument to accept in any real state. Yet in most

real states, we would not say that one’s dignity has been harmed by participating in the

enterprise and being subject to the state. Of course, this can be pushed past a threshold. The

British taxation of American colonies would likely be representative of this point.

Colonization in general would surely harm the dignity of the colonized. But the important

claim is that there is a range of limitation on autonomy that does not constitute a harm to

dignity.

This points us to a crucial distinction. The title of this section refers to autonomy as a

‘threshold side constraint’. I intend this term to distinguish dignity from traditional side

constraints that we previously recognized did not fit our notion of autonomy. Dignity is a

threshold side constraint because it has a realm of severity in which the concept applies, and

a realm in which it does not. While many discussions of threshold side constraints consider

the costs past which it would no longer be sensible to preserve the side constraint,29 the

threshold being considered here is concerned with the severity of the harm being done upon

the agent. Given that we are weighing only the agent’s own goods against itself, there is

unlikely to be any countervailing good the consideration of which would make it permissible

to harm an agent’s dignity (that is, to harm a patient’s autonomy to such an extent that we

view it as a singularly damaging harm). Dignity itself cannot be harmed for a patient’s own

good, as part of our respect for autonomy as a cardinal good—even the competing cardinal

goods simply cannot justify this severe a harm to autonomy. The nature of the harm changes

fundamentally once we reach the threshold of harming dignity; it is a non-linear ascent.

Instead, the threshold we are concerned with here is the point at which a limitation of

autonomy becomes severe enough to constitute a harm to dignity.

29 Such as the inviolability of life as a side constraint in many deontological theories that may nevertheless be compromised in situations involving the deaths of thousands or millions.

Any interference in another agent’s autonomy prior to the threshold of ‘harmed dignity’ is not

a harm; it is simply a factual matter that one’s ability to enact one’s autonomy has decreased.

Craig, who lives close to a library and has access to a great deal of knowledge, or who has the

financial means to make things to his liking, has increased autonomy insofar as he is able to

broaden his knowledge or interact more effectively with his peers, both of which could help

him make actions in keeping with his values, and with less interference. Gerry, who does not

live near a library, and who does not have the financial means to make quite so many things

to his liking, has less autonomy than does Craig, but his dignity has not been harmed. It is

another matter if Craig uses his financial means or other influence to lessen Gerry’s ability to

exercise his autonomy, or if the state is so unjust that Gerry’s autonomy has suffered undue

and unnecessary limitations of notable severity. In such instances, a harm has been done. The

act has crossed the threshold of harming Gerry’s dignity.

The limitation one can enact upon an agent’s autonomy therefore comes in two flavors. Any

limitation of an agent’s ability to govern decisions over his own life is a limitation of autonomy.

Such limitations are often considered justified if they benefit other goods—the function of the

state, a child’s worrisome obesity, etc. Once a harm to autonomy reaches a certain threshold

this triggers a harm to the agent’s dignity, and this harm to dignity is morally impermissible.

While pinpointing a formalized rule for the exact actions that would reach this threshold is

difficult, the harms are of a certain nature that they affect not only our ability to make choices,

but harm other aspects of our well-being as well: the acute sense of feeling confined, being

made to feel inferior to others in a distinctly normative sense, interference with our ability to

recognize moral claims in keeping with our values, etc. While these are mostly experiential

notions, I use them to illustrate the state in which one’s dignity has been harmed, not to

prescribe the origin of the harm’s impermissibility. That origin is in the forcible limitation of

another agent’s autonomy past a certain point, and the wrong nature of this act has nothing

to do with how the agent experiences the limitation.30

In order to establish a proper theory of The Principle of Beneficence*, we must concern

ourselves both with autonomy and harmed dignity, because patient/physician relationships

that are perceived to breach this threshold are where many of the difficult moral questions lie.

I.5.a Dignity considered with respect to moral autonomy and liberty.

We should briefly explore whether both forms of autonomy are vulnerable to harmed dignity.

That is, whether sufficiently harming an agent’s moral autonomy or sufficiently harming an

agent’s liberty constitutes an act of harming an agent’s dignity.

A sufficiently serious harm to either moral autonomy or liberty constitutes a harm to dignity.

As we have already seen, a slave who is unable to govern the course of his life may be

‘autonomous’ in the Kantian sense, in that he can still recognize moral claims and determine

his preferences and moral attitudes, but he is not autonomous in the sense of liberty, because

he has no control over the course of his life. The harm of slavery to liberty is certainly morally

outrageous enough that we should think it breaches the threshold of impermissible harm

which constitutes ‘harmed dignity’.

With respect to moral autonomy, the hypothetical is of necessity more far-fetched. Imagine a

situation in which Gary forces Ann to ingest a pill that prevents her from being able to

30 For example, a 1950s housewife may feel perfectly fine with her husband’s limiting her autonomy past a reasonable point because she has been socially conditioned to find it permissible, but her dignity has nonetheless been harmed.

recognize the things that she values. She is in all respects free to act as she wishes, but she

cannot formulate desires, she cannot recognize moral intuitions or convictions, and therefore

cannot generate any motivation for action. Ann is the ‘indeterminate blob’ that Nozick

referenced in his experiment machine thought experiment. She is not a moral agent, and is

hardly a ‘person’ in the way we would normally use the term. Gary has damaged her moral

autonomy in an impermissible way.

In either the moral autonomy or the liberty sense, then, the forcible limitation of autonomy

past a certain threshold is impermissible and therefore constitutes a harm to dignity.

I.5.b Justifying the impermissibility of harming dignity.

How should such a limitation on action as proscribing acts that harm the dignity of an agent

be justified in a consequentialist framework? Simply put, it is justified in a rule consequentialist

framework: because the consequences engendered as a result of the rule are better than those

that would exist in a society that did not have such a rule. Individual instances of harming

someone’s dignity could, in theory, potentially be justifiable—especially if we include

traditional interpersonal considerations like trolley problems. Even barring the question of

interpersonal weighting, some might argue that the scenario in which one might harm an

agent’s dignity in order to save his life would be worthwhile (from the agent’s perspective).

However, a society in which no limitations on harming dignity existed would be much worse,

on net, than a society that had such limitations. While there may be a small net gain in

consequences for the agent whose dignity is harmed in order to save his life (and this point is

certainly debatable—“Give me liberty or give me death!”), such slightly preferable

consequences are drastically outweighed by the societal implications such a practice would

involve. If a society viewed as justifiable the harming of an agent’s dignity for his own good

(or, even worse, the good of others), the insecurity members of that society would feel over

their own inability to govern predictably their own lives would make such a society

unworkable.31

I.6.a Disease and injury as sufficiently limiting autonomy.

Now that we have established a strong understanding of autonomy and dignity, we must apply

these concepts to the Principle of Beneficence* and understand how they dictate the doctor’s

actions in accordance with his duty to care for the patient’s well-being.

First, the easy cases—and I must emphasize my belief that the vast majority of doctor/patient

interactions fall into this category. If we consider the factual nature of autonomy as we have

described it, it is fairly evident that an illness or injury can lessen a patient’s autonomy. In

most instances, an illness (such as a cold or flu) or injury (such as a sprained ankle or broken

leg) will lessen the autonomy of the patient in a normatively trivial sense: that is, the patient

who has a cold or sprained ankle may have their daily choices confined in some ways by these

conditions, but not in any way that could reasonably be suggested to affect the patient’s liberty

or his moral autonomy past a substantial threshold. In this preponderance of cases, the patient

retains enough autonomy that he can surely make responsible and reasonable choices

regarding his own health, and the physician would therefore be unjustified in guiding the

patient’s will in any way more extreme than counseling the patient on the best options available

to him. If the patient disagrees and elects another option, even if this could cause a marginal

31 I set aside criminals and special considerations that might arise in the ethics of war, because the former does not suffer from unpredictability (the laws of a society are known, and the ramifications also known), and the latter would need special justification, if war can be justified at all.

or substantial harm to other aspects of the patient’s well-being, the physician is barred from

intervening, as this would constitute an act of harming the patient’s dignity.

There are, however, more extreme illnesses and injuries that can limit a patient’s autonomy to

such an extent that they would fit the criteria of agents whose dignity has been harmed. A

patient, Lisa, who has a debilitating mental illness is no longer able to make choices that reveal

her actual moral views, as her beliefs are colored and twisted by the illness—perhaps a

paranoid schizophrenia that makes her believe things that aren’t true. A patient, James, who

has life-threatening pancreatic cancer is affected in a similar way: fear interrupts rational

thought; his understanding of the situation is insufficient to come to a reasonable judgment

about preferable courses of action; the physical burden of the illness begins to limit his ability

to interact with life, causing pain and loss of bodily control, leaving him bedridden. An

unconscious patient, Larry, who is carried into the ER after a horrific car accident has suffered

a great limitation of both his moral autonomy and his liberty: he can neither recognize moral

views nor enact actions that comport to his view of the world.

Before we can determine the appropriate behavior of the doctor in these instances, though,

the claim that these states constitute states of harmed dignity demands some defense.

1.6.b Luck as capable of harming dignity.

It may be that, while illness and injury can harm autonomy to a considerable extent, a moral

agent’s dignity can be harmed only by another moral agent, not an occurrence involving luck.

Within a consequentialist framework, this argument is difficult to defend, as the notion of

harmed dignity applies only to the state of the agent whose autonomy has been sufficiently

harmed; it is not a claim of attributability or blameworthiness to another who may have done

the harming. Jill, whose liberty has been confined by imprisonment in the local jail, has had

her dignity harmed just as assuredly as Gail, whose liberty has been confined by imprisonment

due to a freak avalanche accident. Bob, whose moral autonomy was harmed by a pill Leonard

slipped him that causes him to react at all times out of paranoid fear (instead of in accordance

with his moral beliefs), has had his dignity harmed just as assuredly as Peter, who developed

paranoid schizophrenia and can no longer make moral judgments that aren’t plagued by the

influence of voices in his head.

When it comes to determining whether the state of the patient fits certain criteria, only the

fact that the patient has had his autonomy forcibly interfered with to a significant extent is

relevant, not how it occurred. Consider a doctor who, for whatever reason, forces unnecessary

cosmetic surgery on his patient, removing part of his nose. Now consider a patient who

develops a melanoma on his nose and as a result needs to have part of his nose removed. In

both cases, a certain element of choice was taken from the patient. In the former case, we feel

resentment towards the doctor because he was the driving force behind the ill effect. But we

still feel outrage for the patient who developed melanoma; it is simply that our moral disgust

is without a proper recipient beyond ‘luck’ and how unfortunate life can be.32

This is not relevant for concerns of how to justify treatment of the patient, though, even if we

described the ‘dignity threshold’ as one past which it is impermissible to decrease another’s

autonomy. Admittedly, talk of impermissibility makes little sense when discussing an illness,

as luck is not confined to ‘playing by the rules’ of permissibility. In instances that do not

32 These two events aren’t comparable with regard to well-being, as the first patient gained no well-being from the arbitrary procedure, and lost a great deal of well-being via his substantially diminished autonomy past the harmed dignity threshold, whereas the second patient was forced to make a trade that ultimately improved his well-being. I draw the similarity only insofar as choice was removed from each patient’s control.

involve a harm caused by a moral agent, we should not describe the act as ‘impermissible’, but

rather acknowledge that the patient has been harmed severely: the patient is worse off to an

appreciable extent.

I.6.c The relevance of harmed dignity to the physician/patient relationship.

Now that we have established that the framework of harmed dignity applies to instances in

which the agent’s autonomy was diminished by luck, we may apply this claim to the

relationship between physicians and patients. The central claim here is likely a controversial

one: a physician is justified in employing stronger forms of paternalism with patients who have had their dignity

harmed by an illness or injury.

Why should this be? Surely justifying limiting a patient’s autonomy by the fact that ‘bad luck

has already limited it’ feels like kicking someone when they are down. But this reaction forgets

the crucial rider that a physician’s paternalistic actions are permissible only if they are

motivated solely by the patient’s well-being. Further paternalism is justified in instances of

harmed dignity because the patient’s autonomy has been minimized by bad luck to such an

extent that further interference with his autonomy will have comparably minimal effect and

the potential for an improvement to well-being is so great (whether because of potential to

improve autonomy or physical health, quality of life, etc.).

Nor should this be understood only as a simple weighting of competing values (though this is

part of the picture). As Alan Goldman points out, “The magnitude of harm is rather to be

conceived as evidence that the person is not acting in accord with his own values and

preferences, that he is not acting autonomously in the deepest sense.”33 The interference is

doubly justified. We can weight autonomy considerations against other components of well-

being in situations where the patient’s autonomy has already been harmed for two important

and intertwined reasons: (1) the consequentialist calculus becomes much clearer when the

room for improvement in a patient’s autonomy is great and the ability to further harm

autonomy minimal; and (2) the patient with harmed dignity is in an especially vulnerable place,

where he is incapable of acting autonomously to a reasonable degree, and is therefore unlikely

to act in his best interest or in accordance with his true values.

To defend this claim, let us return to the relevant cases presented in Section I.6.a and

determine a framework of permissibility for physician intervention in patient autonomy. A

brief reminder: Lisa has paranoid schizophrenia, James has pancreatic cancer, and Larry is

unconscious as a result of a car accident. I previously argued that Lisa’s dignity has been

harmed via an extreme limitation of moral autonomy, that James’ dignity has been harmed by

a sufficient limitation of both moral autonomy and liberty, and that Larry’s dignity has been

harmed by an extreme limitation of both moral autonomy and liberty.

Of these three examples, I believe that Lisa and Larry are cases in which it is easy to justify

greater physician control in the patient’s treatment. Larry’s case is likely the most obvious: he

has no way to express his wishes, and extreme forms of paternalism are justified to improve

his well-being. The one caveat in such a case is any situation in which Larry has made

autonomous choices prior to this point that carry over, such as a living will, a DNR, or a

healthcare proxy. These are not exceptions, per se, because they are instances of Larry making

33 Alan Goldman. “The Refutation of Medical Paternalism”, Ethical Issues in Modern Medicine, 7th Edition. McGraw-Hill, 2009. 64.

an autonomous choice that apply to this situation, such that much of his autonomy is

preserved from a prior point. Therefore, while Larry’s autonomy is currently greatly

diminished, his past autonomy preserves his dignity in a very real sense, and a physician would

not be justified in acting as a result of a constraint on harming dignity.

Strong forms of paternalism are also justifiable in Lisa’s situation, where the patient suffers

from a mental illness that makes her a danger to herself and prevents her from acting in

accordance with her own view of the world.34 There may be other reasonable justifications

for paternalistic treatment that involve interpersonal weightings (e.g. potential harm to society)

but, while these strengthen the case, abiding by the Principle of Beneficence* necessitates that

the patient’s own well-being is a sufficient justification for her being treated with elevated

paternalism. If the claims that other members of society have to safety, etc. are part of the

justification, then the physician is no longer acting in accordance with the Principle of

Beneficence*. It must be that the patient’s well-being is justification enough.

The most debatable claim of the three presented here is that James’ moral autonomy has been

suitably diminished to constitute a harm to dignity. Certainly, such a claim will vary to some

degree from patient to patient, but I think that by and large notifications of potentially terminal

illnesses affect a person’s ability to deal with their situation rationally. Lisa’s case provides a

helpful guideline. Why should we think heightened paternalism of the mentally ill is justified

if not because their autonomy has been minimized? And if this is the reason, then there must

surely be a sliding scale of the permissibility of paternalism as a result of the degree to which

34 This argument depends on a metaphysical claim that the mental illness is separate from the patient and not part of her identity in the relevant sense. If we do not assume this, then the mental illness does not interfere with Lisa’s moral autonomy. While I will not defend the assumption here, I will point to our societal belief that mental illness is a mitigating factor in sentencing for a crime as, at the very least, evidence that my claim

one is or is not autonomous. The claim that heightened paternalism of James is justified

therefore depends on the claim that James’ disease has passed a sufficient threshold of harm

to his autonomy. Mark Komrad addresses this possibility in slightly different terms in “A

Defense of Medical Paternalism”,

Illness is an attenuation of autonomy in both Kantian and Millian terms. Physical incapacity mitigates the liberty of action and thus diminishes ‘autonomy of action’ in Mill’s sense. Mental or even physical illness can interfere with reason and thus deprive one of the faculty that is crucial for Kant’s ‘autonomy of will’. Parsons observes that even in purely physical illness, ‘the situation of the patient is such as to make a high level of rationality of judgment difficult’.35

To evaluate this claim, consider this analogy to a situation where a criminal has, in the course

of robbing a bank, taken a teller hostage. The police arrive in response to the situation and

designate two members of their team with crucial roles: the negotiator and the sniper. It is

the negotiator’s job both to talk to the criminal, attempting to defuse the situation, as well as

to comfort the hostage. If the negotiator decides it is prudent or morally justified, he can

instruct the sniper to attempt to kill the criminal. The sniper’s skills are such that he will not

miss the criminal (virtually 100% chance of success), but there is a 5% chance that he will hit

both the criminal and the hostage. In weighing whether or not he should indicate for the

sniper to fire, the negotiator considers the likelihood that the criminal will kill the hostage

himself, that the hostage might get harmed during the criminal’s attempted escape, that he can

talk the criminal down, etc. (as well as the moral value of catching the criminal and preventing

future crimes without resorting to violence).

While the negotiator is concerned with the hostage’s well-being, he is not evaluating his

potential courses of action based on the hostage’s preferences. The hostage is clearly

35 Mark Komrad. “A Defense of Medical Paternalism.” Journal of Medical Ethics. 1983. 38-44. Cit.: Parsons T. The Social System. London: Free Press of Glencoe, 1961: 440-441.

compromised by shock and his relationship to the situation, does not know enough about

handling hostage negotiations, and does not know which course of action is truly in his best

interest (since he lacks the expertise to know how to evaluate each course of action, or even

to know all of the possibilities available to him). If the situation progresses long enough, the

hostage may even develop Stockholm syndrome, or some other psychological condition that

further debilitates his ability to assess the situation objectively. As a result of these factors, we

would not say that the negotiator harms the hostage’s dignity in acting without care for the

hostage’s preferences:36 he is doing what must be done to create the best probability of saving

the hostage’s life, recognizing that he and he alone has the expertise to be able to achieve the

best outcome from the situation.

Just as the hostage is in a compromised state due to this unfamiliar, terrifying scenario, so too

is James. He can develop psychological disorders (even something as simple as an acute fear

of death could cause debilitating fear of action, action which might be necessary to succeed in

fighting off the illness), many of which might be difficult to detect and diagnose. He has little

to no understanding of the methods of combatting the illness (in most instances) and has the

least objective framework in terms of balancing various risks and potential rewards—he

cannot objectively determine the best possible course of action. If the hostage is analogous

to the patient, then so too is the criminal analogous to the disease: both the disease and

criminal have created situations that have harmed the dignity of the patient and hostage—the

patient and hostage are both being limited (by the doctor and criminal, respectively) in their

36 Even, let’s say, in some odd hostage negotiation in which the negotiator had plenty of opportunity to hear the hostage’s opinions about the situation.

choices of action going forward, and they are being limited in a way that is forcibly against

their desires and the nature of healthy, rewarding lives.

I.7 A framework for the relationship between autonomy and dignity.

I believe the root cause of the discrepancy between how we think of the proper roles of the

hostage and the patient, respectively, is a misconception of the source of the harm to dignity

in the doctor/patient relationship. Simply put, it is hard to conceive of the disease as being

morally relevant. The patient (and society too, in establishing a flawed ethical framework) has

conceptualized the disease or injury incorrectly in two distinct and crucial ways: (1) the patient

does not think of the disease as an entity capable of committing more than bodily harms; (2)

the patient does not view the disease as an entity of any normative relevance, and therefore

conceptualizes the interaction as only having two moral agents, misappropriating sole blame

or responsibility to the doctor.

While I have already addressed the idea that a disease harms more than the body, one might

wonder how an event like a disease or an injury could possibly be a source of anything of

normative value—where, by normative value, I mean that the moral content of an act can be

evaluated. A bullet does not have normative value, and it causes harm. But in fact, the bullet

does not cause the harm, the criminal does. 37 In a disease, there is no criminal. The illness

came about by luck.38 As a result, the disease is wholly ‘responsible’ for the harm done to the

37 Please ignore any unintentional similarity to the NRA slogan, “Guns don’t kill people, people do.” 38 I set aside situations of sexually transmitted disease or injury where the act causing the injury/illness was intentional and another party was at fault. The other party in these scenarios likely caused the relevant harm to the dignity of the patient, but this is more obvious than the case of a random disease resulting from luck. It is also more complicated to bring in a third party and the responsibility that they hold to the patient for having done that harm. What would the relationship be to the patient in such instances? Does their punishment void the harm to dignity, or is it permanent in a manner similar to the slave scenario? These questions are outside the scope of this project. Of course, if the third party’s interaction was unintentional, then it is a situation involving luck in just the same way a person develops cancer.

patient’s dignity—all of the psychological effects that come about from being ill, the feelings

of misplaced guilt and perceived inferiority to other people, etc.

The fact that the two conceptualizations of disease discussed above have gone

unacknowledged in the patient/physician relationship has a crucial effect. Were a physician

to act paternalistically to his patient, she may feel her doctor has harmed her dignity through

a forced reduction of her autonomy, when in fact it was the disease—not the doctor—that

has harmed her dignity (via harming either moral autonomy or liberty). The doctor may

therefore be justified in further decreasing her autonomy (in order to improve it and other

‘beneficence level’ goods in the long run) if he is motivated by beneficence. The patient may

nonetheless feel that the doctor has harmed her dignity, but the morality we are operating

within cannot be so subjective that the act becomes wrong simply because it may make the

patient feel bad.

Distinguishing between the degrees of reducing autonomy prior to harming dignity has a

crucial implication that solves the problem we confronted in Section I.4.a, where we were

puzzled by the difference between Suicide and Christian Scientist. In Christian Scientist the doctor

had a reasonable belief that the patient wanted the blood transfusion at Time A, and believed

he was helping to repair the patient’s autonomy by preventing him from dying and thereby

increasing his ability to formulate and act upon choices according to his own will. He was

justified in committing the act only because he was not harming the patient’s dignity. When

the patient awoke and declared his belief in Christian Science, the normative equation changed:

the doctor realized that the patient had a moral framework in which the disease did not harm

his dignity—he believed that the disease was God’s wish and was a means by which He called

him to Heaven. So his autonomy has not, in his eyes, been harmed past a sufficient threshold

to constitute a harm to dignity. As a result of this revelation, the doctor’s continued action

can no longer be justified by beneficence, because it cannot be aimed at the well-being of the

patient.

In Footnote 29 I suggested that, even if a 1950s housewife believed that her husband’s limiting

her autonomy was justified by her identity as a woman, this was not sufficient grounds to treat

her in a way that limits her autonomy to such an extent that it constitutes a harm to dignity.

This is in apparent conflict with the claim that the Christian Scientist’s perception that his

dignity has not been harmed negates the harm to dignity we would otherwise diagnose. While

some may feel that one’s belief in a religion is a result of indoctrination in just the same way

that a belief in a woman’s inferiority results from a problematically patriarchal society, a strong

argument can be made that faith is such a powerful good in so many people’s lives that it is a

legitimate reason for determining the course of one’s own treatment. I do not think such an

argument can be made about systems of belief that make a woman believe that otherwise

impermissible limitations of her autonomy are made permissible by her identity as a woman.

This reasoning is repugnant to our moral sensibilities. I certainly believe arguments can be

made that religious beliefs similarly impede our ability to make rational judgments, but it would

be too far from the topic at hand to entertain such arguments here. An objective morality

means that some reasons for acting are better than others, and I am simply assuming for the

purposes of this project that faith is a good reason for acting in a certain way, at least in

instances where only the believer’s own good is at stake.

Suicide operates on different considerations. The physician in Suicide was denying treatment,

not forcing it (as he would have to do to preserve the patient’s life in Christian Scientist). In

many instances, a consequentialist would have a hard time justifying an act/omission

distinction, but I believe it holds here, given the framework we have accepted. A physician

not consenting to provide a certain type of treatment (of any kind) limits a patient’s autonomy,

but it does not harm her dignity, because it does not limit her autonomy past a permissible

threshold. A patient who truly wished to die might find other means that did not involve a

lethal injection from a physician. She has alternatives available to her. No such alternatives

exist in Christian Scientist, where the patient is being forcibly given treatment to which he did

not consent.39 As a result, the doctor’s omission in Suicide does not reach the threshold of

harming the patient’s dignity, while the forcible treatment in Christian Scientist would. Hence

the theory prescribes different outcomes in seemingly similar cases.

I.8 The Principle of Beneficence** formalized.

At the beginning of this project, I put forward a very straightforward revision to Beuachamp

and Childress’s normative framework that incorporated autonomy as a value that was part of

beneficence and called this the Principle of Beneficence*. The Principle has ballooned and

grown far more complicated in the interim, so I will refine it formally.

The Principle of Beneficence**: The patient’s well-being is the sole justification for the course of

action a physician elects for his patient. The patient’s well-being is comprised of two primary

goods—bodily health and autonomy. Bodily health encompasses both blunt physical health

and quality of life. Autonomy comprises moral autonomy and liberty. By weighing these

goods, a physician can determine the course of action that is best for the patient’s well-being.

39 We can, however, easily imagine Suicide II where the patient has a terminal illness and is suffering excruciating pain: the physician would be justified in assisting the patient in killing herself here because, if there is indeed no hope of curative treatment, it would be the most humane way to ameliorate the harm the disease has done to the patient’s dignity (as well as the harms it has done to the other aspects of her well-being).

A physician is justified in weak paternalism in most cases. He is justified in strong paternalism

only in situations in which the patient’s autonomy has been sufficiently harmed by illness or

injury to such a degree that it constitutes a state of harmed dignity. Patients who have already

had their dignity harmed by illness or injury will have such a comparatively low autonomy

value that their ability to make rational choice is compromised by this diminished autonomy,

and so physicians have more leeway in further minimizing their (potentially unrealizable)

autonomy in order to improve it and bodily health in the future.

I.9.a Considering the framework in the context of paternalism.

What remains to be seen is exactly what sorts of paternalistic influences can be justified under

this framework, and in what instances.

Let us first define paternalism as action (or behavior) enacted by an individual or group on

another person for the good of the other person, usually in a way that infringes upon rights to

which the person generally has a claim. Why should we be concerned about paternalism? It

certainly has a necessary role in medicine that is unique to the sphere, compared to most other

parts of our lives, where we tolerate much less interference. Consider the fact that most

medications require prescriptions—another (expert) agent’s permission to treat ourselves with

a medication that may greatly reduce our suffering or even save our lives. Bad diet can be

equally detrimental to our health, but we do not need the permission of an ‘expert’ to purchase

particularly fatty or sugary foods.

Yet consider Seanna Shiffrin’s argument that “the most problematic feature of paternalism is

not that it aims to restrict freedom in the person’s own interest but that it seeks to substitute

a would-be trustee’s judgment or practical reason for the other’s and so fails to value and

respect the other as an equal person or rational agent.”40 But clinical medicine depends on

such an imbalance, and paternalistic acts on the part of the physician do not necessarily

indicate a lack of a respect for the patient, if the physician is guided by the Principle of

Beneficence**. This is because the paternalistic acts would be justified by the purpose of the

practice and therefore do not deviate from prioritizing the patient. Indeed, consider the claim

that rejection of paternalism in the medical context fundamentally misunderstand the role of

the patient:

But the notion that we could be 'ideal rational patients' cannot stand up to a moment's scrutiny…. Where autonomy is standardly reduced, paternalism must it seems be permissible; opposition to medical paternalism appears to reflect an abstract and inaccurate view of human consent which is irrelevant in medical contexts.41

By holding the patient to an ideal standard, we remove the possibility of beneficial action

through paternalism. This unwarranted bar on interference will likely leave the patient worse

off, and on a shaky philosophical grounding.

While paternalism is not prima facie impermissible, this does not say anything about particular

forms of paternalism, which may go too far to be justified by the Principle of Beneficence**.

Following popular convention in bioethics, we can divide paternalistic influence into three

categories most commonly accepted in discourse on the subject: persuasion, manipulation,

and coercion.42 In order for an influence to constitute persuasion, “a person must come to

believe in something through the merit of reason another person advances. Appeal to

reason—that is, attempted persuasion—is distinguishable from influence by appeal to

40 Stephen Darwall. “The Value of Autonomy and Autonomy of the Will.” Ethics, Vol. 116, No. 2 (January 2006), 263-284. 268. See: Seanna Shiffrin, “Paternalism, Unconscionability Doctrine, and Accommodation,” Philosophy & Public Affairs 29 (2000): 205–50. 41 Onora O’Neill. “Paternalism and Partial Autonomy.” Journal of Medical Ethics, 1984. 173-178. 174. 42 I attribute this categorization to Beauchamp and Childress.

emotion.”43 Persuasion is by far the most innocuous form of paternalism, unlikely even to be

impermissible. While it does imply an imbalance of knowledge that may seem denigrating in

certain spheres of discourse, such an implication is an inseparable part of the patient/physician

relationship. Moreover, persuasion is a process by which knowledge is balanced among parties

(to the extent possible) and, among the forms of paternalistic influence, it is the kind that most

obviously and immediately seeks to improve the autonomy of the patient (through improving

the patient’s understanding). In fact, it is arguably necessary for the practice of clinical

medicine to function properly. A physician needs to be able to supply a patient with the

relevant information (facts of treatment, prognosis, range of options, etc.) and voice his

opinion about the best course of action, as an expert. To the extent that he is appealing to the

rational faculties of his patient and acting in keeping with the principle of beneficence, he is

fulfilling his ideal role in the physician/patient relationship. This claim is unlikely to be

controversial.

Manipulation, on the other hand, can appeal to all sorts of non-rational forms of decision

making. Its definition is broadest and most elusive because it encompasses those forms of

paternalistic influence that are neither rational appeals (persuasion) nor forcible coercion.

Beauchamp and Childress attempt to highlight the relevant sense of manipulation, suggesting,

“In health care, the most likely form of manipulation is informational manipulation, a

deliberate act of managing information that alters a person’s understanding of a situation and

motivates him or her to do what the agent of influence intends.”44

43 Tom Beauchamp and James Childress. Principles of Biomedical Ethics. Oxford University Press, 2008. 139. 44 Ibid, 139.

Finally, coercion is often considered the most reprehensible form of paternalistic influence, as

it seems to limit the autonomy of the patient most extensively and forcefully. An act

constitutes coercion when it employs a threat of force (or force itself) to compel the patient

to act in a certain way (to accept a given treatment, for instance).45 While both manipulation

and coercion seek to usurp a person’s ability to make autonomous choices, and therefore could

be reprehensible based on the denigration of the act, only coercion features domination as

well, completely usurping the patient’s autonomous choice.

However, we can justify instances of manipulation and coercion under the framework I have

put forth. These instances are limited to situations where (1) the physician is acting in a

manner that is in keeping with the Principle of Beneficence**, and (2) the patient’s dignity has

already been harmed by some illness. Under a framework of consequentialist weighting, the

benefits greatly outweigh the costs. Beauchamp and Childress suggest that such instances of

manipulation—which they term ‘therapeutic privilege’ and which may be employed “only if

he or she has sufficient reason to believe that disclosure would render the patient incompetent

to consent to or refuse the treatment,” while usually legally permissible, are nonetheless

morally problematic, if justified only “on grounds that the disclosure of relevant information

might lead a competent patient to refuse a proposed treatment.”46 This is a notable difference

between the consequences of their moral framework and the one I have put forward.

The possibility that coercion may be justified under this framework is likely to be the most

stunning conclusion of the three. How can it be that forcibly treating a patient against her will

is in keeping with the Principle of Beneficence**? But coercive authority is reserved for those

45 Ibid, 138. 46 Ibid, 128.

instances where the patient’s dignity has already been harmed and the patient’s autonomy is

already in a drastically diminished state. In such situations, the bodily health of the patient will

have relatively more impact in the well-being calculus, especially if there is a potential to

remedy the lowered state of autonomy. Since the patient’s autonomy has already been

diminished to such a degree, there is not much counter-balancing or limiting the physician’s

ability to act, so even coercion could be justified.47

Indeed, the status quo of medical ethics already accepts coercion in many of the same instances

that our model would allow for it; the arguments are (in my opinion) just more cumbersome

and haphazard under a non-consequentialist framework. We accept that the mentally ill may

be coerced into treatment, but the most common justifications of treating people in such a

way are largely stipulative—it is the best way to deal with a difficult situation—or couched in

concerns that are extraneous to the well-being of the patient (concerns for public safety, etc.).

In contrast, the normative force of justification for such practices follows from the structure

of our framework, and the normative force of the argument originates with concern for the

patient, not for society. Under this framework, the mentally ill have had their dignity harmed

by disease: their autonomies have been diminished by their inability to make reasoned choices

that represent who they are. As a result, the well-being equation tips heavily in favor of

improving bodily (that is, mental) health and restoring autonomy. A slight further reduction

in current autonomy is justified in this weighting for two reasons: (1) the potential to improve

47 This also explains (in a much cleaner way) why ‘forcible’ treatment is justified in situations dealing with unconscious patients. We do not need to resort to arguments from ‘necessity’ and ‘reasonable person standards’ that seem rather arbitrary. We can simply point out that the patient’s autonomy is in such a drastically diminished state that there is so much room to improve both it and the patient’s bodily health that even coercion is justified.

bodily (mental) health is great (that is, the room for improvement is large) and (2) the potential

to improve autonomy and reverse harms to dignity is also quite large.

I.9.b Impotence revisited.

Now that we have a fully-developed theory of autonomy, dignity and paternalism, I will return

to the other controversial case we encountered earlier in the project. Impotence was a case in

which the will of the patient was subverted through manipulation: the physician does not

inform the patient that he is prescribing him a placebo and seeks to improve the patient’s well-

being via a deception. This is a particularly odd case to address with our framework because

it would be hard to argue that something as relatively innocuous (in the scheme of medical

problems) as treatable impotence could constitute a harm to dignity, even if we accept my

argument that illnesses can harm dignity. The condition at hand simply does not seem to

justify a claim that the dignity harm-threshold has been crossed. Or, if we were to make such

a claim, it would seem to make the threshold far too low, and thereby allow the physician too

great a range of cases in which strong paternalism is justified.

However, the situation becomes somewhat clearer if we keep in mind the complicating factors

presented in Impotence—the contraindication for ED treatment (i.e. the patient’s hypotension)

and the patient’s crippling anxiety. Were the doctor to inform the patient of the

contraindication, fulfilling his duty to preserve the patient’s autonomy, he would be harming

the patient’s dignity because he would be turning the condition at Time A from one that is

treatable impotence (because of the placebo effect) to one that is untreatable impotence at

Time B. The patient would no longer be able to benefit from the placebo effect because he

would know that he cannot receive real ED medication. In this unique case, the doctor’s informing

the patient would constitute a harm to dignity because it would change the nature of the patient’s

condition. Moreover, while manipulation can be a harm to dignity, in this case the patient’s

net well-being would be improved by the improvement to the physical condition, which would

also increase the patient’s future autonomy. The complicated nature of the various outcomes

is doubtlessly the source of our conflicted instincts. In situations where not employing strong

paternalism would thereby harm the patient’s dignity and would leave the patient’s well-being

worse off, the lesser harm should be chosen, and therefore the doctor is justified in

manipulation.48 This is a special case where there is a direct and paradoxical conflict between

the elements of well-being.

I.10 On the principle of non-maleficence.

While I touch on this only briefly, a few words should be said as to why the principle of non-

maleficence—often a keystone of medical ethics—has had no place in the theory I’ve put

forth. A paraphrase of part of the Hippocratic Oath, “Above all, do no harm” cannot survive

in a consequentialist model.49 There are too many cases in which harm is necessary given the

current limitations of modern medicine (e.g. chemotherapy, radiation treatment, amputation)

that a rule consequentialism cannot justify the rule.

A proponent of the principle of non-maleficence has three responses available, neither of

which hold much water. He may suggest that we do not justify the rule (in which case it is not

a principle at all), but rather limit the individual acts of harm as unjustifiable in each situation.

But either each act cannot justify the proposed harm, in which case the rule would have been

justified in the first place, or there are cases in which exceptions to non-maleficence have to

48 I do admit, however, that this is a particularly difficult case, and I welcome competing explanations. 49 I think it likely has problems under most theoretical models, but I will stick to my own turf here.

be made, in which case the principle just collapses into a weighting of benefits and burdens—

a standard consequentialist framework.

One might suggest that the principle of non-maleficence holds as a justifiable rule, but that

the conception of harm being prohibited does not include such harms that necessarily benefit

the patient, such as chemotherapy. Yet this is simply a principle against non-necessary harms,

which collapses it into the Principle of Beneficence**, since the physician must justify any

harms done to the patient by the patient’s overall well-being.

The final response a proponent of non-maleficence has available is a strong stand that no

harm should be done. This would have to ban much of medicine that has harmful side-effects.

However, the principle would be even more limiting than that: when one considers that

exposing a patient to the risk of harm must surely be assumed in the principle of non-

maleficence,50 the principle becomes so absurdly restrictive that it cannot possibly stand. Too

much of modern medicine is prohibited under such a framework.

50 Or, if this is not the case, the principle of non-maleficence becomes vulnerable to luck. A physician could violate it (or not) purely as a result of whether or not a patient happens to experience a harmful side-effect from a physician’s treatment.

II

Justifying the Practice of Informed Consent in Clinical Medicine

The conclusions we arrived at in Part I were guided by weighting procedures that concerned

only the Principle of Beneficence**, and placed it in an ideal setting. In order for applied

ethics to be of much use to us, however, we must consider the possibilities of how the ‘real

world’ will shape our ethical model—what competing concerns or principles there might be,

how the assumptions we have made might not hold, etc. This is not to say that the first ninety

percent of the project have no practical import. The normative framework we have laid out

is important in the same way that any ideal is important: it is a moral beacon. A system in

which physicians and patients can each conceive of their relationship with the other in the

ways dialectic suggested will be a normatively preferable system to the one we currently have.

Nonetheless, conceiving the idealized form without pointing out the hazards to which it may

be prone in the real world is a dangerous proposition. We must engage in both dialectics.

The majority of this paper focused on the normative justification for a specific relationship

between a doctor and his patient, and helped determine the normative priority of

considerations the doctor must take in order to demonstrate proper care for his patient. Yet

something about our conclusions seems unsettling. Granted, the vast majority of medical

interactions will abide by the Principle of Beneficence** by applying a practice of informed

consent and will make use of only persuasion. Nonetheless, under the framework I have

presented, there are few actions that a physician could not undertake given the right scenario,

especially if the patient’s dignity has already been harmed by illness or injury.

However, we must keep in mind that we have been working within the context of a specific

(and ideal) physician/patient relationship. The physician has always been acting only

according to the Principle of Beneficence**, he has always had nearly omnipotent knowledge

of the situation, he has had no competing interests nor distractions, and his judgment has

always benefited from the keen insight of a completely unbiased and uninvolved theoretical

ethical framework. Were we to have some way to ensure that a specific physician/patient

relationship met this ideal standard, then the physician might likely have the free reign our

framework has given him. But such a relationship would be so extraordinary that it would

also be characterized by extreme trust on the part of the patient, and so many of the concerns

we have addressed might never arise.

But it would be foolish to justify an applied ethical theory based on assumptions involving an

ideal state; we must derive the application from the ideal and couch it in a justification of the

realities of the actual practice as it really exists. The different burdens of justifying a utopia

and justifying a real world post-minimal state serve as a helpful analogy. We cannot make the

assumptions we have made about our physician/patient relationship and plausibly apply them

to actual physician/patient relationships. As Mill critiques in “Remarks on Bentham’s

Philosophy”, “It is not considered…whether the act or habit in question, though not in itself

necessarily pernicious, may not form part of a character essentially pernicious, or at least

essentially deficient in some quality eminently conducive to the “greatest happiness.”51 If the

Principle of Beneficence** nonetheless fails to account for real-world problems, it must be

mitigated. The scope of our approach to the problem cannot, in the end, be limited to the

vacuum of clinical medicine.

51 John Stuart Mill. “Remarks on Bentham’s Philosophy.” 1833. 8.

What concerns are there that might mitigate the degree to which our normative model grants

the physician freedom, then? This may not be an exhaustive list, but it is a good starting point:

1) The physician is unlikely to have perfect medical knowledge of the condition.52

2) The medical community is unlikely to have perfect medical knowledge of the

condition.

3) The physician is unlikely to have certainty about the efficacy of various treatments.

4) The medicine may not be as effective as intended for a specific patient.

5) There may be unforeseen side-effects that could drastically alter the realized effect of

treatment on bodily health (including quality of life) and even autonomy.

6) The physician may have competing interests that prevent him from acting purely by

the Principle of Beneficence**.

7) The patient may not have revealed all information that would allow the physician to

make an accurate assessment of the costs and benefits being weighed in the well-being

normative equation.

8) The costs of treatment may limit the freedom of physicians to treat in a manner in

keeping with the Principle of Beneficence**.53

9) Chilling effect. A society with a practice of clinical medicine in which the patient felt like

his wishes might be disregarded if he were to present himself for treatment may make

members of such a society less likely to seek medical treatment when they need it.

52 “They have no authority to decide the question for all mankind, and exclude every other person from the means of judging. To refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty” (On Liberty, 31). 53 This is the realm of Beauchamp and Childress’ ‘justice’ principle.

These concerns are of three different sorts: (1) there are factors outside the control of

physicians that may make their legitimate and justified attempts to abide by the Principle of

Beneficence** fail in such a way that they do not accomplish their goal (in that they make the

patient worse off) and therefore make interference with the autonomy of the patient

unjustified; (2) physicians are people and, like all people, they cannot as a group be trusted to

abide by a principle perfectly; and (3) there may be societal concerns that outweigh the

concerns of the individual patient.

In the realm of applied ethics, the Principle of Beneficence** must be tempered by the norms

of the society in which it exists. A society that mistrusts its physicians will have to avoid all

but the most innocuous forms of paternalism. A society in which physicians are talented and

trusted would be able to embrace the Principle more fully. But this is not the same as saying

that our society currently has it right, and we are arbitrarily adjusting the Principle in order to

match the rightness of societal conventions. The Principle of Beneficence** is, I believe, the

ideal guiding principle for physicians—they should be able to interact with the patient in such

a way and for such purposes as the Principle would suggest. Rather, this is a recognition that

there are factors that currently limit our ability to enact a proposed model, even if it is

consequentially the most preferable. Sudden changes could have consequences that outweigh

the benefits.

Nonetheless, I think these concerns push us toward a straightforward (if general) answer that

will help us move towards an idealized practice of clinical medicine. The degree to which a

physician builds trust with his patient will change the normative force of the external factors

(i.e. per the list above), while simultaneously making the justification of the more problematic

forms of paternalistic influence (manipulation and coercion) less necessary. While factors

attributed to luck or the skill of an individual physician cannot be improved by an ethical

framework, the Principle of Beneficence** helps structure a relationship that is conducive to

building this sort of trust. A physician abiding by the Principle of Beneficence** will be

striving to improve the patient’s autonomy in a real way, not abiding by it as a regulation on

his ability to treat. He will want to educate the patient in such a way as to make the patient

capable of formulating and acting upon a choice that represents the patient’s values best, while

simultaneously being mindful of objective notions of morality. He will recognize that the

patient has had her dignity harmed by an illness in much the same way that a slaver harms the

dignity of his slave, and this will foster an understanding of what a patient needs to be most

comfortable in making the best decisions for herself—namely, kindness, empathy, and

patience.

It may seem that what we are left with is relatively similar to the status quo of the

physician/patient relationship. Perhaps the consequences are similar, but—and I make this

claim in full recognition of its apparent irony in the context of a project in consequentialist

ethics—consequences are not all that matter in constructing a moral theory. What we started

with was an understanding of autonomy that misrepresented the nature of the value of

autonomous choice. We should not view autonomy as being in conflict with a principle to

improve our well-being. Rather, we should recognize that autonomous choice is part of our

well-being, that it has inherent value that we must foster and target for improvement, that to

be autonomous is to be healthy. The alternative is both normatively flawed and will lead to

the poor state of affairs we are currently witnessing in much of clinical medicine. By gradually

moving towards a society that is more accepting of the arguments that accompany the

Principle of Beneficence**, we can create a more ethically sincere and justifiable practice of

clinical medicine.

Works Cited

Beauchamp, Tom and James Childress. Principles of Biomedical Ethics. Oxford University Press, 2008. Chen, Pauline. “Treating Patients as Partners, by Way of Informed Consent”, The New York Times, July 30, 2009. Darwall, Stephen. “The Value of Autonomy and Autonomy of the Will.” Ethics, Vol. 116, No. 2 (January 2006), 263-284. Goldman, Alan. “The Refutation of Medical Paternalism”, Ethical Issues in Modern Medicine, 7th Edition. McGraw-Hill, 2009. Komrad, Mark. “A Defense of Medical Paternalism.” Journal of Medical Ethics. 1983. 38- 44. Cit.: Parsons T. The Social System. London: Free Press of Glencoe, 1961. Mill, John Stuart. On Liberty. Batoche Books, 2001. Mill, John Stuart. “Remarks on Bentham’s Philosophy.” 1833. Mill, John Stuart. Utilitarianism. 1863. Murray, Peter M. “The History of Informed Consent.” Iowa Orthopedic Journal, 1990. Nozick, Robert. Anarchy, State, Utopia. Basic Books, 1977. O’Neill, Onora. “Paternalism and Partial Autonomy.” Journal of Medical Ethics, 1984. 173-178. Shiffrin, Seanna. “Paternalism, Unconscionability Doctrine, and Accommodation,” Philosophy & Public Affairs 29 (2000): 205–50.