Week 2 - Blumenthal
Week 2 - Blumenthal
Week 2 - Blumenthal
,
"!2"9s"%47%%.2%!3/.!.$#/%2#)/.
J. S. Blumenthal-Barby
Kennedy Institute of Ethics Journal Vol. 22, No. 4, 345–366 © 2012 by The Johns Hopkins University Press
[ 345 ]
+%..%$9).34)454%/&%4()#3*/52.!,s$%#%-"%22012
I
n bioethics, the predominant categorization of various types of influ-
ence has been a tripartite classification of rational persuasion (mean-
ing influence by reason and argument), coercion (meaning influence
by irresistible threats—or on a few accounts, offers), and manipulation
(meaning everything in between; Faden, Beauchamp, and King 1986).
The standard ethical analysis in bioethics has been that rational persua-
sion is always permissible, and coercion is almost always impermissible.
However, many forms of influence fall into the broad middle terrain—and
this terrain is in desperate need of conceptual refining and ethical analysis.
This is especially true given the recent interest in using behavioral sci-
ence insights to change individual and group health related decisions and
behaviors through techniques that fall somewhere in between reason and
coercion. Examples include but are not limited to the use of subconscious
cues to trigger healthy behaviors, incentives for weight loss and smoking
cessation, framing and focusing effects to get patients to focus on certain
risks or benefits, default HIV screening for all adults entering hospitals
(recommended by the Centers for Disease Control), default Sickle Cell
Trait screening for all college athletes (recommended by the National
Collegiate Athletic Association), and vivid images on cigarette packages
(now mandated by the FDA).
The use of behavioral economics and behavioral psychology principles
to shape health decisions and behaviors is likely to grow due to several
factors. In the United States, the National Institutes of Health (NIH) has
made “The Science of Behavior Change” a priority by designating it as a
Roadmap Initiative (National Institues of Health 2009); the NIH and the
Agency for Healthcare Research and Quality awarded 7 grants totaling 20
million dollars on “Behavioral Economics for Nudging the Implementation
of Comparative Effectiveness Research”; the U.S. Department of Agricul-
ture awarded 2 million dollars in 2010 for research on how behavioral
economics can improve federal food policy; and the Robert Wood Johnson
Foundation awarded eight $100,000 grants in 2012 to study “Applying
Behavioral Economics to Perplexing Health and Health Care Challenges”
such as obesity and lack of consumer engagement. In the U.K., the Insti-
tute for Government and the Cabinet Office published a ninety-six-page
report, “MINDSPACE: Influencing Behaviour Through Public Policy,”
exploring how behavior change theory can meet policy challenges; the
Department of Health issued “guidance on the most effective behaviour
[ 346 ]
",5-%.4(!,
"!2"9s"%47%%.2%!3/.!.$#/%2#)/.
[ 347 ]
+%..%$9).34)454%/&%4()#3*/52.!,s$%#%-"%22012
There are two main problems with Faden, Beauchamp, and King’s
typology. The first is with the labeling of the category “manipulation.”
On their account, many cases get labeled as manipulation that most of us
would not consider manipulation under ordinary usage of the term. For
example, on their account, when a professor tells her students that if they
attend a lecture they will get extra credit, she is manipulating them. When
a spouse makes flattering remarks to get his partner to cheer up at the end
of a tough day he is manipulating her. Insofar as we want our typology to
map onto ordinary usage, this one does not since too many acts or behav-
iors get labeled as cases of manipulation that do not strike most people as
cases of manipulation given the usual negative connotations of the term.
The related yet bigger problem with the account is with the breadth of the
category of “manipulation.” This becomes especially problematic when
moving to the normative stage where one is expected to make claims about
the moral status of “manipulation.” I will expand on this point below in
my suggested conceptual revisions.
[ 348 ]
",5-%.4(!,
"!2"9s"%47%%.2%!3/.!.$#/%2#)/.
[ 349 ]
+%..%$9).34)454%/&%4()#3*/52.!,s$%#%-"%22012
ETHICAL ANALYSIS
[ 350 ]
",5-%.4(!,
"!2"9s"%47%%.2%!3/.!.$#/%2#)/.
AUTONOMY
[ 351 ]
+%..%$9).34)454%/&%4()#3*/52.!,s$%#%-"%22012
Finally, Daniel Hausman and Brynn Welch argue that all forms of influence
other than rational persuasion, including these nonargumentative influ-
ences, or “nudges,” interfere with autonomy by diminishing the extent
to which the agent has control over her evaluations and deliberations
(Hausman and Welch 2010, pp. 128, 135).
[ 352 ]
",5-%.4(!,
"!2"9s"%47%%.2%!3/.!.$#/%2#)/.
[ 353 ]
+%..%$9).34)454%/&%4()#3*/52.!,s$%#%-"%22012
[ 354 ]
",5-%.4(!,
"!2"9s"%47%%.2%!3/.!.$#/%2#)/.
[ 355 ]
+%..%$9).34)454%/&%4()#3*/52.!,s$%#%-"%22012
[ 356 ]
",5-%.4(!,
"!2"9s"%47%%.2%!3/.!.$#/%2#)/.
this paper I set those issues aside to focus on ethical components beyond
the usual focus on ends. Having addressed the impact on autonomy of the
influenced, I now turn to the second major factor to consider in the ethi-
cal analysis of the permissibility of nonargumentative influence in health
care and health policy contexts: the nature of the relationship between
the influenced and the influencer.
[ 357 ]
+%..%$9).34)454%/&%4()#3*/52.!,s$%#%-"%22012
Damage to Relationships
Because this paper focuses on contexts of health care and health policy,
I want to note an aspect of the relationship factor that goes beyond the
obligations of one party to the other, namely that in health care, the re-
lationship between physician and patient is importantly built on trust.
Insofar as nonargumentative influence damages the physician–patient
relationship, it is ethically problematic. Nonargumentative influence might
damage the relationship in any of these cases:
(1) if the patient feels that in failing to engage her reasoning capacities the
physician is failing to show respect for her by treating her as lesser, not
an equal, and not capable;
(2) if the patient feels that in failing to engage her reasoning capacities the
physician is failing to show respect for her by outright dismissing her
views and judgments as not worthwhile; or
[ 358 ]
",5-%.4(!,
"!2"9s"%47%%.2%!3/.!.$#/%2#)/.
(3) if the patient feels that the physician is exploiting her weaknesses (Baron
2003, p. 50).
Here are two contrasting examples that get at these points well. Doctor
1 thinks that Patient 1 needs a surgery. Doctor 1 shows Patient 1 a vivid
video of what might happen if the patient does not get the surgery. Doctor
1 does this with all of the humility in the world, thinking that the video
is the best way to get the patient to deeply appreciate the consequences in
a way that sitting down and talking through the reasons with the patient
would not. Patient 1 senses the care and motivation with which the doc-
tor presents the video and perceives it as such. Doctor 2 also thinks that
Patient 1 needs surgery and Doctor 2 also shows Patient 1 a vivid video
of what might happen if the patient does not get the surgery, but Doctor
2 shows the patient the video because he thinks that Patient 1 is an idiot
who would not understand or appreciate the reasons that he would give
the patient were they to sit down and talk through it, and he thinks that
Patient 1 is weak and overly emotional and thus the video would trigger
the patient’s emotions and fears. Patient 1 senses this and perceives the
video as a scare tactic, damaging the relationship. In both cases we have the
exact same nonargumentative influence mechanism, but Case 2 is ethically
problematic because of damage posed to the physician–patient relationship.
[ 359 ]
+%..%$9).34)454%/&%4()#3*/52.!,s$%#%-"%22012
tions and obligations that arise in that relationship, and preserve or damage
the relationship? The FDA is a governmental body employed to protect
and promote public health. As such, they do indeed have an obligation to
protect and promote health, and it is reasonable for the public to expect
that they would work to decrease tobacco use, given that it is an addictive
drug that results in many negative health consequences. In some ways no
risks of damage to the relationship are posed by the campaign. After all,
the FDA does not fail to engage the public with arguments and reasoning
because they view the public as incompetent, but rather because (1) to
truly engage in dialectic reasoning about the pros and cons of smoking
would be highly impractical if not impossible, and (2) they are countering
the nonargumentative influence employed by cigarette advertisers. The
efforts of the FDA are aimed at respecting the worth of individuals by
taking up concern for the health of all citizens, not just those of wealthy
upper socio-economic status. It is well documented that the majority of
smokers are of a lower socio-economic class. On the other hand, the public
may perceive the campaign as consisting of scare tactics that demonstrate
an intimidating and power-abusing federal agency. Hausman and Welch
make a similar point when they raise the concern that “nudges” from the
government may be seen as disrespectful towards citizens (Hausman and
Welch 2010, p. 138). For this reason empirical work can and should be
done to test public perception before a technique is employed. Moreover,
the public and key stakeholders can and should be engaged in the design
and implementation of such interventions or policies so that they feel a
part of the project and relationships are preserved as opposed to damaged.
[ 361 ]
+%..%$9).34)454%/&%4()#3*/52.!,s$%#%-"%22012
[ 362 ]
",5-%.4(!,
"!2"9s"%47%%.2%!3/.!.$#/%2#)/.
have the same answer. The patient may see it as perfectly reasonable that
a physician would try to influence a patient to make healthy decisions,
but still not endorse her decision being formed in that way.
To finish the application of the analysis to the example, let us now ex-
amine the extent to which framing the surgery in terms of survival rates
in order to get the patient to consent fulfills or violates expectations and
obligations that arise in that relationship, and preserves or damages the
relationship. As noted earlier, the relationship between a physician and a
patient involves certain obligations and expectations. Physicians have an
obligation to protect and promote the health interests of their patients,
but they also have an obligation to protect and promote their autonomy.
Patients may reasonably expect that their physician will try to protect and
promote their health, but they also reasonably expect that their physi-
cian will be straightforward with them. I do not expect my mother to be
straightforward with me when she tries to promote my health interests, I
expect her to exaggerate about the negative effects of smoking for example,
but I do expect my physician to be. To make due on her expectation to be
as straightforward as possible, I would expect the physician to go ahead
and initially frame the surgery in terms of survival rates, but also say to me,
“That also means that so and so number of people die from the surgery.”
The situation might be different when we are discussing my yearly failure
to exercise, in which case I expect a little less straightforwardness and a
little more nonargumentative influence. For example, I would expect her
to remind me that 500 people die every year from not exercising, without
also saying, “That also means that millions of people do not!”
Whether the framing to get the patient to consent to surgery will
damage the relationship between the physician and the patient depends
on whether the patient discovers the influence attempt and on how the
patient responds to it. Whether discovery is damaging will depend on the
individual psychology of the patient and the physician, and their individual
relationship, and as such it is difficult to make general claims here. That
said much hinges on whether the patient perceives the physician as acting
from care and courage vs. arrogance and laziness. Moreover, as I have
emphasized before, trust is an essential component of the physician–pa-
tient relationships, so the physician should carefully consider whether the
patient would perceive this framing as a violating of trust if discovered.
[ 363 ]
+%..%$9).34)454%/&%4()#3*/52.!,s$%#%-"%22012
CONCLUSION
NOTES
[ 364 ]
",5-%.4(!,
"!2"9s"%47%%.2%!3/.!.$#/%2#)/.
REFERENCES
Andre, Judith. 1985. Power, Oppression and Gender. Social Theory and Practice
11 (1): 107–122.
Baron, Marcia. 2003. Manipulativeness. Proceedings and Addresses of
the American Philosophical Association 77 (2) (November 1): 37–54.
doi:10.2307/3219740.
Benn, Stanley. 1967. Freedom and Persuasion. [An earlier version of this paper
was read to the Eighth Annual Conference of the Australasian Political Studies
Association, Canberra, August, 1966.] Australasian Journal of Philosophy
45 (3) (January): 259–275. doi:10.1080/00048406712341211.
Blumenthal-Barby, J. S. 2013. Choice Architecture: A Mechanism for Improving
Decisions While Preserving Liberty? In Paternalism: Theory and Practice, ed.
Christian Coon and Michael Weber. Cambridge University Press.
Buss, Sarah. 2005. Valuing Autonomy and Respecting Persons: Manipulation,
Seduction, and the Basis of Moral Constraints. Ethics 115 (2) (January):
195–235. doi:10.1086/426304.
Cave, Eric M. 2006. What’s Wrong with Motive Manipulation? Ethical Theory
and Moral Practice 10 (2) (December): 129–144. doi:10.1007/s10677-006-
9052-4.
Christman, John. 2009. The Historical Conception of Autonomy. In The Politics
of Persons: Individual Autonomy and Socio-Historical Selves, 133–163. New
York: Cambridge University Press.
Dworkin, Gerald. 1988. The Theory and Practice of Autonomy. Cambridge
University Press.
Faden, Ruth R., Tom L. Beauchamp, and Nancy M. P. King. 1986. A History and
Theory of Informed Consent. New York: Oxford University Press.
Fahmy, Melissa Seymour. 2011. Love, Respect, and Interfering with Others. Pa-
cific Philosophical Quarterly 92 (2) (June 1): 174–192. doi:10.1111/j.1468-
0114.2011.01390.x.
Fischer, John Martin. 2004. Responsibility and Manipulation. The Journal of
Ethics 8 (2) (January 1): 145–177.
Frankfurt, Harry. 2002. Frankfurt-Style Compatibilism: Reply to John Martin
Fischer. In Countours of Agency: Essays on Themes from Harry Frankfurt,
ed. Sarah Buss and Lee Overton. Massachusetts Insititue of Technology Press.
Greenspan, Patricia. 2003. The Problem with Manipulation. American Philo-
sophical Quarterly 40 (2) (April 1): 155–164.
[ 365 ]
+%..%$9).34)454%/&%4()#3*/52.!,s$%#%-"%22012
Hausman, Daniel M., and Brynn Welch. 2010. Debate: To Nudge or Not to
Nudge. Journal of Political Philosophy 18 (1) (March): 123–136. doi:10.1111/
j.1467-9760.2009.00351.x.
National Institues of Health. 2009. NIH Science of Behavior Change. Meeting
Summary. Bethesda, Maryland.
Noggle, Robert. 1996. Manipulative Actions: A Conceptual and Moral Analysis.
American Philosophical Quarterly 33 (1) (January 1): 43–55.
Taylor, James Stacey. 2009. Practical Autonomy and Bioethics. New York:
Routledge.
[ 366 ]