PHIL 223
Applied Ethics
Handbook + Lecture Notes
Michaelmas Term
2006
1
PHIL 223 APPLIED ETHICS
1. COURSE OUTLINE AND OVERVIEW
2. WEEKLY READINGS + SAMPLE QUESTIONS
3. ESSAY TITLES
1. Course Outline
Aims
•
To introduce you to the basic idea of applied ethics and what it might involve.
•
To introduce you to a number of applied ethical problems and to the principal arguments
that address these problems
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To enable you to engage in informed discussion about these problems
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To allow you to better understand, and to better engage with, practical ethical problems as
they feature in everyday life, in professional life, and in the media.
Objectives By the end of the course, you should be able to:
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Understand what the discipline of applied ethics is
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Explain and critically assess some of the central debates and disputes in applied ethics
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Appreciate the different views that can be taken in respect of the various problems
•
Understand and apply key ethical concepts that are relevant to a range of practical
problems
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Write critically about the philosophical debates on the topics we will have covered
Teaching and learning Each week there will be a one-hour lecture. Later in the week there
will be a two hour “workshop”: task-directed small group work followed by discussion
within the whole group
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Timetable:
All lectures are at Tuesday 12-12.50pm throughout both terms. NOTE: the location
changes below. Workshop time/place varies too. See note below.
Michaelmas Term
Lectures –. Week 1 George Fox B56; Weeks 2-10 George Fox LT 5/6
Workshop – all weeks Wednesday 11.00am-12.50pm Biology Lecture Theatre
Lent Term
Lectures – all weeks George Fox B56
Workshop – all weeks Furness LT2 but on THURSDAYS 12-1.50
Course Website https://domino.lancs.ac.uk/ieppp/phil223.nsf
Workshop questions; reading lists; lecture handouts and lecture notes all posted here.
Assessment Essay of 2500 words (which, when added to the essay from last term = 50%) and
a final examination (50%).
Essay Deadline.
5pm Friday 15th December
Lecturers Michaelmas: Neil Manson (n.manson@lancaster.ac.uk). Room C25 Furness.
Office hour [check on door] Lent: Sam Clark.
Useful Anthologies and “companions”
There is no “set text” for Michaelmas term. The following are useful anthologies and
companions. They are all on short loan in the library.
Core readings. The core reading for each week will be on the PHIL223 website or available
from the web. Many of the readings will be found in one, or more, of the anthologies or
companions below.
Hugh LaFollette (ed.) Ethics in Practice: An Anthology (Oxford: Blackwell 1997) A
collection of articles on applied ethics (from journals, books etc) (3hr loan)
Hugh LaFollette (ed.) The Oxford Handbook of Practical Ethics (Oxford: Oxford University
Press, 2003). A collection of survey articles arranged by topic, with good references
to pursue if you are writing an essay (3hr loan)
R.G. Frey and Christopher Heath Wellman (eds.) A Companion to Applied Ethics (Blackwell,
2003). Like the Oxford Handbook this is a (different) collection of survey articles. It
is on 3hr loan but is also available as an e-book via the library website.
Ruth Chadwick and Doris Schroeder (eds.) Applied Ethics: Critical Concepts in Philosophy
(London: Routledge, 2002).There are six volumes in this series. The most relevant
volume for our purposes is Volume I: Nature and Scope (3hr loan)
Helga Kuhse and Peter Singer (eds.) Bioethics: An Anthology (Blackwell, 1999) is useful for
weeks 2, 3, 4 and 9.
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Encyclopedias
The Routledge Encyclopedia of Philosophy provides good entries on all the major
philosophical topics, theories, and authors. Ruth Chadwick’s Encyclopedia of Applied Ethics
also has entries on many of the topics we will cover.
Michaelmas Term Overview
There are a vast number of topics and sub-topics in applied ethics and with only two terms at
our disposal we cannot cover all that many. The aim in Michaelmas term is to introduce
different kinds of topic. We begin with the general question of what applied ethics is. How
does it differ from just ethics? In what sense is it applied? In weeks two and three we will
look at two topics to do with human reproduction: abortion and ‘designer babies’. In week
four we pick up the topic from week three but look at it from a different angle. Rather than
asking if it is permissible for an individual to select traits for her offspring, we will look at the
question of whether society may, or should, interfere in human reproduction. This is the
debate about eugenics: given that we have genetic and reproductive science and technology
available which could radically adjust the make-up of future populations should we structure
society in that way?
Week five is a reading week. On weeks six and seven we continue with our focus on
how society ought to be structured. We will draw attention to J.S Mill’s ‘simple principle’
that, in effect, a just society is one that will permit any behaviour provided it does not harm
others (what is often called ‘the Harm Principle’).
In week six we look at the basis and limits of a right to free speech. There are a
number of considerations which justify freedom of speech (and the harm principle comes into
play here, as a way of determining when speech ought to be restricted). Freedom of speech
has seemed to many to be a fundamental right, one that ought to be vigorously protected in
society. But what about hate speech? Racist slurs? Blasphemy? What about lies and
deception? What about swearing and offensive speech?
One reason for restricting speech is if it invades or breaches a person’s privacy rights
(or, perhaps, relations of confidentiality). We accept that it would be wrong for a doctor to
tell the world about a famous patient’s embarrassing medical problem. But what if the
patient is the prime minister, and the doctor discovers that he has become seriously mentally
ill, with dangerous delusions? Or, what about the privacy rights of paedophiles? Should
neighbours be told when a paedophile moves into their area?
Our discussion of privacy connects back to general questions about the harm principle
and the limits of the law. Should the law place restrictions upon what people do in private, if
such acts do not harm others? What if people want to be, and consent to be, harmed (e.g.,
boxing; sado-masochistic sexual practices)? Should such practices be illegal? Surely people
should be allowed to decide for themselves? But if this right, shouldn’t heroin and other
drugs be legal provided the user does not harm others, but only herself? This debate is often
called the debate about legal paternalism: whether the legal system should be used to, in
effect, protect people from themselves.
Even if we believe that legal paternalism is not justified we might hold that
paternalistic practices are justified in some spheres of life. E.g., most (all?) people accept
that parents ought to act paternalistically towards their children. Medicine is another area
where paternalism is rife (“Doctor knows best”), but is medical paternalism justified? In
order to make sense of this, we’ll need to look at medical ethics more generally. In week
nine we look at medical paternalism and medical deception, and this will lead us onto current
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medical ethics and the core idea that informed consent is an essential part of good medical
practice. Informed consent, it is thought, provides the basis for nonpaternalistic medical
practice. But informed consent faces problems of its own: how informed must patients be?
What if they don’t want to be informed? Isn’t this just another form of paternalism (you
ought to be informed about risks of surgery because it’s in your own good, and, after all,
doctors (or, in this case medical ethicists) know best!).
There are obvious connections between these different topics. Informed consent is a
central part of medical treatment which, in turn, will feature in the practices which surround
abortion, reproductive decision making and genetic testing. Genetics clinicians rely upon the
ethical advice—or guidance—given to them by professional bodies, which, in turn, brings us
back to the issue we started with, about whether and how ethical theory can be applied to
practical problems and applied in practical contexts by those who may not understand the
abstract reasoning that lies behind the ethical claims.
Applied ethical issues are, typically, part of a complex web of problems and
challenges and it is hoped that these lectures will give you some sense, not just of what’s at
stake in the few issues, but of the way that these issues connect up and inform and influence
one another. In Lent term, Sam Clark will carry on with a different set of topics, and try to
draw out some more connections between issues, and between ethical theory and applied
ethics. We hope that you enjoy these topics and that they will stimulate a good deal of
critical reflection and debate!
1. Applied ethics and moral expertise
2. Abortion and Infanticide
3. Genetics and "designer babies"
4. Eugenics and Social Engineering
5. READING WEEK
6 Freedom of speech
7. The right to privacy
8. Legal Paternalism
9. Medical paternalism and medical deception
10. Informed consent and its problems
2. READINGS + SAMPLE QUESTIONS
WEEK 1
Applied ethics and moral expertise
Core readings
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Tim Dare, ‘Applied ethics, challenges to’ in Applied Ethics: Critical Concepts in
Philosophy Vol 1. PHIL223 website.
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Sample questions
1)
2)
3)
4)
5)
6)
7)
8)
9)
What exactly is applied ethics?
What is applied to what?
Do moral philosophers have moral expertise and what might this amount to?
In what sense is applied ethics applied?
Is applied ethics practical?
How does applied ethics differ from medical ethics?
What challenges does applied ethics face in nature of its applied nature?
Would it be wrong to act in accordance with what a moral expert tells us?
Does the fact that moral philosophers disagree rule out the idea of a moral expert?
Further readings
John Haldane, ‘Applied Ethics’ in Nicholas Bunnin and E.P. Tsui-James (eds.) The Blackwell
Companion to Philosophy, First Edition 1996; Second Edition 2003 (reference only,
in library)
Tom L. Beauchamp, ‘The nature of applied ethics’ in A companion to applied ethics
Peter Singer, ‘Moral experts’, Analysis 32 (1971-2) 115-7
Alasdair MacIntyre, ‘Does applied ethics rest on a mistake?’ The Monist 67 (1984)489-513;
also in Applied Ethics: Critical Concepts in Philosophy, I.
Richard Norman, ‘Applied ethics: what is applied to what?’ Utilitas, 12 (2), July 2000, 119136: (e-journal accessible via library website)
Arthur L. Caplan Can Applied Ethics Be Effective in Health Care and Should It Strive to Be?
Ethics, Vol. 93, No. 2. (Jan., 1983), pp. 311-319. (in Applied Ethics 1; and off
JSTOR in library website)
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WEEK 2
Abortion and Infanticide
Core readings
•
•
Judith Jarvis Thomson, ‘A Defense of Abortion’ Philosophy and Public Affairs, Vol. 1, No. 1.
(Autumn, 1971), pp. 47-66. (JSTOR) (reprinted in Ethics in Practice: An Anthology and in Peter
Singer (ed.) Applied Ethics (OUP, 1986); also in Bioethics: An Anthology)
See also Judith Jarvis Thomson’s 1995 Boston Review piece on abortion, available at
http://davidhildebrand.org/teaching/courses/thomson.php
Sample questions
1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
11)
12)
Is there any principled moral difference between abortion and infanticide?
Is there any principled moral difference between abortion and deliberate non-conception?
Does it matter for the abortion debate whether the foetus is a person or not?
Does it matter for the abortion debate that there is a definite point at which a person—or human
life—begins?
Who is harmed by non-conception?
If a woman did not choose to conceive, does she have any obligations towards the foetus if, by
chance, she does conceive?
How does abortion differ from the surgical removal of an organ?
How does abortion differ from murder?
If something is intrinsically wrong, does that mean it is always impermissible?
Suppose we hold that a foetus is a person. Does that imply that abortion is not permissible?
Can someone consistently hold that abortion is always impermissible whilst also holding that
killing in war is permissible?
What conditions must something meet in order to have rights?
Further reading
Margaret Olivia Little ‘Abortion’ in A Companion to Applied Ethics.
Jonathan Glover, Causing Death and Saving Lives. Harmondsworth: Penguin Books, 1977 Chapters 9, 10
and 11 (though reading the first 8 chapters will be of use too, especially if you are writing an essay
on this topic)
Michael Tooley ‘Abortion and Infanticide’ Philosophy and Public Affairs, Vol. 2, No. 1. (Autumn, 1972),
pp. 37-65. (JSTOR) (reprinted in Peter Singer (ed.) Applied Ethics (OUP, 1986); also in
Bioethics: An Anthology)
Nancy Davis ‘Abortion and Self-Defense’ Philosophy and Public Affairs, Vol. 13, No. 3. (Summer,
1984), pp. 175-207 (JSTOR)
Roger Wertheimer ‘Understanding the Abortion Argument’ Philosophy and Public Affairs, Vol. 1, No. 1.
(Autumn, 1971), pp. 67-95. (JSTOR)
Don Marquis, ‘Why Abortion is Immoral’ The Journal of Philosophy, Vol. 86, No. 4. (Apr., 1989), pp.
183-202. (JSTOR) (reprinted in LaFollette, Ethics in Practice: An Anthology; also in Bioethics:
An Anthology)
Responses to Marquis’ article ‘Why abortion is immoral’
Ann E. Cudd ‘Sensationalized Philosophy: A Reply to Marquis's "Why Abortion is Immoral"’ The Journal
of Philosophy, Vol. 87, No. 5. (May, 1990), pp. 262-264. (JSTOR)
Alastair Norcross ‘Killing, Abortion, and Contraception: A Reply to Marquis’The Journal of Philosophy,
Vol. 87, No. 5. (May, 1990), pp. 268-277. (JSTOR)
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WEEK 3
Genetics and "designer babies"
Core readings 1
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Ruth Chadwick ‘The Perfect Baby: Introduction’ in R. Chadwick (ed) Ethics
Reproduction and Genetic Control (London: Croom Helm, 1987) (PHIL223 website)
Sample Questions
1)
2)
3)
4)
5)
6)
What are genes? What do they do?
Do genes determine who you are?
What is a genetic test?
Why might someone want a genetic test?
What, if anything, is wrong with PGD (other than the abortion issue)?
What do considerations of ‘stigma’ for disabled groups imply for the permissibility of
genetic testing?
7) Is it wrong to test children for late-onset genetic diseases like Huntington’s disease?
8) What is the difference between genetic testing and gene therapy?
9) What is the difference between somatic gene therapy and germline gene therapy?
10) Is there a principled difference between treatment and enhancement?
11) ‘The parent who pays for her child to have private tuition is no different from the
parent who pays for a genetic ‘enhancement’ of her future child.’ Is this true?
Further reading
Glover, J. (1984). What Sort Of People Should There Be?. Middlesex, England: Penguin
Books. Chapters 2 and 3.
Erik Parens and Adrienne Asch, "The Disability Rights Critique of Prenatal Testing:
Reflections and Recommendations," Special Supplement, Hastings Center Report 29,
no. 5 (1999): S1-S22. (e-journal via metalib on library website)
Julian Savalescu ‘Procreative beneficence: why we should select the best children’ Bioethics.
2005 Feb;19(1):12-28. (Phil223 website)
Allen Buchanan, Dan W Brock, Norman Daniels, and Daniel Wikler From Chance to
Choice: Genetics and Justice Cambridge: CUP. Chapter Six ‘Reproductive Freedom
and the Prevention of Harm’
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In weeks 3 and 4 we will be looking at ethical issues that arise with regard to developments in genetic
knowledge and technology. It will help if you have some grasp of what genes are and what they do. A good
introductory resource is the US National Institute of Health introduction to genetic testing. If you google
"Understanding gene testing" you’ll hit it. Or, link to:
http://www.accessexcellence.org/AE/AEPC/NIH/index.html
Another good introductory resource is the recent document by the UK Human Genetics Commission Making
Babies:Reproductive Decisions and Genetic Technologies (2006) available from
www.hgc.gov.uk/UploadDocs/DocPub/Document/Making%20Babies%20Report%20-%20final%20pdf.pdf
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WEEK 4
Eugenics and Social Engineering
Core reading
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Nicholas Agar,. "Liberal Eugenics." In Bioethics: An Anthology, edited by Peter Singer and
Helga Kuhse. Blackwell, 1999. (PHIL223 Website)
Sample questions
1)
2)
3)
4)
5)
What is the difference between positive and negative eugenics?
What is the difference between enforced and ‘liberal’ eugenics?
Do objections against enforced eugenics rule out voluntary eugenic programmes?
Is there anything wrong with eugenics?
If it is right to eliminate smallpox, what’s wrong with using genetic testing, or genetic
engineering, to rid the world of genetic diseases?
6) Should we be worried about a ‘slippery slope’ here?
7) Should we be worried about ‘playing God’?
8) In what sense are eugenics programmes unnatural? And why should that matter to our
ethical evaluation of them?
9) Is there an important difference between the eradication of disease and eugenic programmes
whose aim is to rid the world of those of ‘low intelligence’?
10) Who would be harmed by a eugenics programme?
11) If we permit genetic screening
Further reading
Allen Buchanan, Dan W Brock, Norman Daniels, and Daniel Wikler From Chance to Choice:
Genetics and Justice Cambridge: CUP. Chapter two ‘Eugenics and its shadow’
John Harris "Is Gene Therapy a Form of Eugenics?" In Bioethics: An Anthology, edited by Peter
Singer and Helga Kuhse, 165-170. (Blackwell, 1999).
Jonathan Glover ‘Eugenics and Human rights’ in Justine Burley (ed.) The Genetic Revolution and
Human Rights (Oxford: Oxford University Press, 1999)
Francis Fukuyama Our Posthuman Future:Consequences of the Bioetechnology Revolution (London:
Profile Books, 2002)
There is a good annotated list of readings including historical references at the US National Reference
Center for Bioethics Literature
http://www.georgetown.edu/research/nrcbl/publications/scopenotes/sn28.htm
There are various pro and anti-eugenic movements. There are links at the bottom of the Wikipedia
article on eugenics. Many of these—especially in the “pro” camp—seem to be written by very
opinionated people without any good understanding of what heredity is. There is an excellent Boston
Review piece by the philosopher Ned Block on ‘How Heritability Misleads about Race’ at
http://www.nyu.edu/gsas/dept/philo/faculty/block/papers/Heritability.html
REMEMBER Week 5 is READING WEEK
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WEEK 6
Freedom of Speech
Core Readings
Over the next four weeks we will make appeal to John Stuart Mill’s “harm” principle
(excerpt on 223 website)
•
The core reading for this week is the survey article on freedom of speech by David
van Mill on the Stanford Online Encylopedia of Philosophy
http://plato.stanford.edu/entries/freedom-speech/
Sample Questions
1)
2)
3)
4)
5)
6)
7)
8)
9)
Should we be free to say what we like so long as it does not harm others?
What kinds of harm to others should be taken into account?
In what ways, and in how many different ways, can speech harm someone?
Do we need to supplement Mill’s principle with another, that takes account of the fact
that speech may cause offence to others?
Should a right to free speech permit lying?
Can Mill’s principle be extended to images, works of art, films, novels, and so on?
Should astrological forecasts be banned, because they might lead gullible people to
believe them?
Do considerations that support free speech also support freedom to produce and
consume pornography?
Do the same arguments apply to violent pornography?
Further reading
John Arthur ‘Sticks and Stones’ in H. LaFollette (ed) Practical Ethics (Blackwell, 1997) 364375 (on Phil223 website)
David A. J. Richards ‘Toleration and Free Speech’ Philosophy and Public Affairs, Vol. 17,
No. 4. (Autumn, 1988), pp. 323-336. (JSTOR)
Daniel Jacobson, ‘Mill on Liberty, Speech, and the Free Society’ Philosophy and Public
Affairs, Vol. 29, No. 3. (Summer, 2000), pp. 276-309. (JSTOR)
Freedom of speech and pornography
L.W. Sumner ‘Pornography and censorship’ in the Blackwell Companion to Applied Ethics
Danny Scoccia Can Liberals Support a Ban on Violent Pornography? Ethics, Vol. 106, No. 4.
(Jul., 1996), pp. 776-799. (JSTOR)
Rae Langton, ‘Speech Acts and Unspeakable Acts’ Philosophy and Public Affairs, Vol. 22,
No. 4. (Autumn, 1993), pp. 293-330. (JSTOR)
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WEEK 7
The right to privacy
Core Readings
•
•
James Rachels ‘Why Privacy is Important’ Philosophy and Public Affairs, Vol. 4,
No. 4. (Summer, 1975), pp. 323-333. (JSTOR) (223website)
Judith de Cew ‘Privacy’ [Stanford Encylopedia]
http://www.seop.leeds.ac.uk/entries/privacy/
Sample Questions
1)
2)
3)
4)
What is privacy?
Why should we hold that anyone has a right to privacy?
Is privacy necessary to form intimate relations?
Is there a right to privacy over and above other rights: against trespass; harm; and
“annoyances”?
5) What should privacy rights extend to?
6) Do child molesters have a right to keep their past unknown from their neighbours?
7) Should mothers be tested for HIV against their will, in order to better protect their
newborn infants?
8) Can the protection of privacy rights be against the public interest?
9) Should the police be permitted to tap phones, read emails, and track internet use of
those who have committed no crimes?
10) Is your privacy breached if someone takes pictures of you asleep in bed and you never
find out? What if nobody (other than the photo-taker) knows of these pictures?
Further reading
Judith Jarvis Thomson The Right to Privacy’ Philosophy and Public Affairs, Vol. 4, No. 4.
(Summer, 1975), pp. 295-314. (JSTOR) (+223 website)
Thomas Scanlon ‘Thomson on Privacy’ Philosophy and Public Affairs, Vol. 4, No. 4.
(Summer, 1975), pp. 315-322.
W. A. Parent ‘Privacy, Morality, and the Law’ Philosophy and Public Affairs, Vol. 12, No.
4. (Autumn, 1983), pp. 269-288.
Robert S. Gerstein ‘Intimacy and Privacy’ Ethics, Vol. 89, No. 1. (Oct., 1978), pp. 76-81.
Amitai Etzioni The Limits of Privacy (Basic Books, 1999) especially Chapter 2 ‘Sex
offenders’ privacy versus children’s safety: Megan’s Laws and the alternatives’
(Phil223 website)
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WEEK 8
Legal Paternalism
Core Readings
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•
Dworkin, Gerald, 2005 ‘Paternalism’ http://plato.stanford.edu/entries/paternalism/
Douglas N. Husak, ‘Legal paternalism’ in Oxford Handbook of Applied Ethics, 387412: (PHIL 223 website)
J.S. Mill is the classic source of liberal anti-paternalism: see the much quoted soft paternalist
‘dangerous bridge’ example in the 5th paragraph of Chapter V ‘Applications’ of On Liberty
http://etext.library.adelaide.edu.au/m/mill/john_stuart/m645o/chapter5.html
Sample Questions
1) What is the distinction between strong and weak paternalism?
2) Is the state ever justified in restricting individual behaviour which does not harm
others?
3) If Tom and Barbara consent to hurting each other, do they do anything wrong?
4) If Tom decides to chop off his own feet, should the law prevent this?
5) Should boxing be illegal?
6) Are there cases where people need to be protected from their own desires?
7) Does the fact that many of our desires and interests are short term justify paternalism?
8) Should we be free to take heroin if we wish?
9) What about cigarettes?
10) How does the debate about paternalism relate to the debate about freedom of speech?
Dworkin, Gerald, 1972, ‘Paternalism’, The Monist, 56, 64-84.
Joel Feinberg, Harm to Self, Volume Three of his The Moral Limits of the Criminal Law
(Oxford 19886), Chapter 17 ‘Legal Paternalism’ (you could also read his earlier
article, ‘Legal Paternalism’, Canadian Journal of Philosophy 1:1 (1971) on which his
later material is based): an excellent, illuminating survey of the principal issues in
defining and defending legal paternalism
David Archard, ‘Paternalism defined,’ Analysis 50:1, 1990, 36-42
Anne E. Cudd ‘Taking Drugs Seriously: Liberal Paternalism and the Rationality of
Preferences’
Robert E. Goodin, ‘Permissible Paternalism: Saving Smokers from Themselves’ (Cudd and
Goodin are reprinted in Ethics in Practice: an anthology, 309-19 and 320-5)
John Hospers ‘Libertarianism and Legal Paternalism’ Journal of Libertarian Studies IV, 3,
1980, 255-265 (PHIL 223 Website)
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WEEK 9
Medical paternalism
and medical deception
Core Reading
•
•
Buchanan, Allen, 1978, ‘Medical Paternalism’, Philosophy and Public Affairs, 7, 370390. (JSTOR) (+223 website)
Tom L. Beauchamp & James F. Childress, Principles of Biomedical Ethics Fifth
Edition (Oxford OUP, 2001) pp.177-187 (on PHIL223 Website)
Sample Questions
1)
2)
3)
4)
5)
Why is medical practice paternalistic?
Is paternalism in medicine avoidable?
Is paternalism in medicine justified?
How does paternalism show itself in medical communication?
Does the fact that doctors know more than patients about medical matters mean that
they have a right to decide what’s in a patient’s best interests?
6) Doctors know that patients may reject treatment if they believe that it is going to be
painful. They also know that in the long term patient’s will cope with, perhaps forget,
the pain, but reap the benefits of the treatment. Is it right for doctors to deceive their
patients about pain?
7) Is it wrong to withhold a fatal diagnosis from a patient?
8) Is it wrong for doctors to downplay the risk of side-effects, if they know that a patient
is likely to misunderstand the risks?
Further readings
Bernard Gert; Charles M. Culver ‘The Justification of Paternalism’ Ethics, Vol. 89, No. 2.
(Jan., 1979), pp. 199-210. (JSTOR)
Bernard Gert; Charles M. Culver ‘Paternalistic Behavior’ Philosophy and Public Affairs, Vol.
6, No. 1. (Autumn, 1976), pp. 45-57. (JSTOR)
Sisela Bok ‘Lies to the sick and dying’ Chapter XV of her Lying: Moral Choice in Public and
Private Life (London: Quartet, 1980) (223 Website)
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WEEK 10
Informed consent and its problems.
Core Reading
•
•
Onora O’Neill, “Some Limits of Informed Consent” (2003) 29 Journal of Medical
Ethics 4. (PHIL223 website)
Neil C. Manson ‘Consent and Informed Consent’ in Richard Ashcroft, Angus
Dawson, Heather Draper and John McMillan (eds.), Principles of Health Care Ethics
(2nd ed), London , John Wiley, forthcoming 2007. (PHIL223 website)
Sample Questions
1)
2)
3)
4)
5)
6)
7)
8)
What is informed consent?
How does informed consent differ from just consent?
Why is informed consent taken to be an important part of medical ethics?
Does informed consent provide a protection against paternalistic medical practice?
What should a patient be informed about?
What if a patient does not want to be informed?
What role does a fear of legal action play in establishing informed consent?
Is informed consent primarily a legal protection, rather than something of ethical
importance?
9) When is informed consent necessary in medical practice?
10) Can a fully informed consent ever be achieved?
Further readings
Michael A. Jones ‘Informed Consent and other Fairy Stories’ Medical Law Review Summer
1999, 103-134 (on PHIL223 website)
Kottow, M., “The Battering of Informed Consent” (2004) 30 Journal of Medical Ethics 565.
(via library website)
Ruth Faden and Tom Beauchamp A history and theory of informed consent. New York:
Oxford University Press, 1986.
If you want to explore the topic further see the bibliography
Sugarman, Jeremy et al., 1999, ‘Empirical Research on Informed Consent: An Annotated
Bibliography’, Hastings Center Report, Special Supplement, January-February, 1-42.
Tthere is large, searchable, bibliography where you can search for articles dealing with
‘disclosure’ problems or with ‘patients’ understanding’ etc., at:
http://www.va.gov/resdev/fr/informed_consent/bibliography_notes.cfm
For a quick introduction to medical ethics which may help situate the debate about informed
consent, see Alastair Campbell, Grant Gillett, Gareth Jones Medical Ethics (4th Edn) OUP
2005. Chapter 1, ‘Foundations’ (on PHIL223 website)
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Michaelmas Term Assignment
Essay titles
The selected readings for each topic should provide a good basis to answer these. There are
further readings suggested in the companions and anthologies listed earlier. You may also
want to make use of the web-based search facilities (e.g., MEDLINE; JSTOR; INGENTA;
ACADEMIC SEARCH; and, if stuck, google scholar, or just google!).
1. What would it be for applied ethics to succeed? [this is a tough question and requires
some careful thought beforehand!]
2. Does it matter for the abortion debate whether foetuses are persons?
3. Is pre-implantation genetic testing a private matter? What implications does your answer
have for the ethics of this kind of genetic testing?
4 Is any kind of eugenics defensible? If so, what kind, in what contexts?
5. Is it better to allow offence and suffering to a few than to risk undermining a general right
to free speech? Critically discuss using examples.
6. Why is privacy important? How does your answer help us decide about the limits of
privacy rights?
7. ‘The only defensible basis upon which the law should be allowed to limit individual
liberty is the harm principle’. Do you agree? Justify your answer.
8. Is medical deception ever justified?
9. What is informed consent? What role should it play in ethically sound medical practice?
You are welcome to formulate your own question, but you must agree this in writing with me
beforehand (e.g., by email). Essays should be up to 2,500 words in length. Work that is
between 10% and 50% over length will be penalised 5 marks. Work that is more than 50%
over length will not be marked at all. They should be handed in by *****
If you need an extension then come to see me as soon as you have difficulties, and in
any case before the assignment deadline. You will need to fill in a form with the reason
beforehand. Please note the University policy on late submissions:
Work not completed by the stated deadline and without an agreed extension
should lose 10% if it is between one and seven days late. Work more than seven
days late and without an agreed extension should receive zero.
Policy on assessment and marking criteria: please refer to Philosophy Part II Handbook
LANCASTER UNIVERSITY AND PLAGIARISM
University core value of academic integrity:
15
Core values of academic integrity (honesty and trust) lie at the heart of our academic
enterprise, and they underpin all activities within the University. The University values a
culture of honesty and mutual trust, and it expects all members of the University to respect
and uphold these core values at all times, in everything they do at, for and in the name of the
University. Academic integrity is important because, without honesty and trust, true
academic discourse becomes impossible, learning is distorted and the evaluation of student
progress and academic quality is seriously compromised. Consequently, the University is
committed to
a. defending the academic credibility and reputation of the institution
b. protecting the standards of its awards
c. ensuring that its students receive due credit for the work they submit for assessment
d. advising its students of the need for academic integrity, and providing them with
guidance on best practice in studying and learning
e. educating its students about what intellectual property is, why it matters, how to
protect their own, and how to legitimately access other people’s
The meaning of plagiarism:
Plagiarism involves the unacknowledged use of someone else’s work, usually in coursework,
and passing it off as if it were his/her own. This category of cheating includes the following:
1. collusion, where a piece of work prepared by a group is represented as if it were the
student’s own;
2. commission or use of work by the student which is not his/her own and representing it
as if it were:
ƒ
purchase of a paper from a commercial service, including internet sites,
whether pre-written or specially prepared for the student concerned
ƒ
submission of a paper written by another person, either by a fellow student or
a person who is not a member of the university;
3. duplication of the same or almost identical work for more than one module;
4. the act of copying or paraphrasing a paper from a source text, whether in manuscript,
printed or electronic form, without appropriate acknowledgement;
5. submission of another student’s work, whether with or without that student’s
knowledge or consent.
Why Plagiarism is unacceptable:
1. It involves unacceptable practices, particularly literary theft (stealing someone else’s
intellectual property, and breach of copyright) and academic deception (in order to
gain a higher grade)
2. It involves poor or careless academic practice (including poor note-taking and poor
procedures for preparing academic work)
3. It prevents the student who plagiarises from knowing how well they have performed
(by yielding a false grade), thus denying them the opportunity to learn lessons,
improve their study skills, and improve their knowledge and understanding
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4. If plagiarism goes undetected and unpunished, it effectively penalises and can
demoralise those students who do not plagiarise
Detection and Penalty
Academic markers will be making a positive effort to identify possible plagiarism, using a
variety of means, including electronic systems such as Copycatch and Turnitin.com. Where
apparent plagiarism is detected, the matter is investigated, the student's previous record on
plagiarism examined and, if necessary, a panel is arranged to discuss the matter with the
student. Plagiarism can attract a number of different penalties, depending on the severity of
the offence and how many offences the student has committed. Penalties range from a formal
warning and note on student records, through the awarding of 0, to appearance at Standing
Academic Committee, with the recommendation for exclusion from the University. Full
details of these procedures can be found on the CELT homepage or a copy is kept in the
Teaching Office, C18, Furness College.
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PHIL 223 APPLIED ETHICS
WEEK 1
Applied ethics and moral expertise
1. Brief historical note: recent arrival; huge expansion since 1960s
2. What is applied ethics? Is applied ethics part of philosophy?
(i) We apply ethical concepts in everyday life typically to particular events, situations, actions,
people. But this is not “philosophical”.
(ii) Philosophical ethics is (a) general, (b) abstract;
(a) Normative ethics (what is the right thing to do? how should we live? how should
society be organised?)
(b) Meta-ethics (what is the nature of ethical claims? are there ethical facts? do we know
ethical truths? Are ethical claims subjective?)
Philosophical moral theorizing may involve interplay between both (a) and (b).
At first sight: if it’s applied it’s not philosophical, and vice versa.
3. What we’ve left out: ethical problems and challenges
Everyday application of concepts is OK for clear cases. But many cases — real or hypothetical —
provide practical and conceptual ethical challenges. They are ethically unclear:
•
•
Practical unclarity: what is the right thing to do in situation x?
Conceptual unclarity: what is the right thing to say (or think) about situation x?
Example: a “doctor’s dilemma” – duty to be truthful seems to clash with duty to not harm one’s
patients (e.g., when being truthful will harm the patient)
4. Different reasons for unclarity
•
•
•
•
Complexity -Lots of different ways in which a situation can be complex (e.g., might
be hard to track all the implications of an action; or it might be morally complex (as
in the doctor’s dilemma)
Novelty (e.g., new technologies may make new kinds of action possible)
Weighing up competing interests and rights
Accommodating different ethical perspectives
Often have the form “on the one hand . . . but on the other . . .”.
6. Ethical challenges: do they need moral experts?
In other walks of life, if there are problems that we cannot solve using our everyday skills, we
consult experts (in person, in texts etc). E.g., an architect, an engineer (see Caplan for
criticisms of the “engineering” model). But does it make sense to talk of moral expertise?
7. Against the idea of moral expertise
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(i) Meta-ethical objections. Subjectivism and relativism. If morality is subjective, or relative, how
can there be experts? Disanalogy with scientific expertise.
(ii) Moral knowledge, by its nature, is evenly distributed. Ethical concepts are an essential part of
social interaction, so all normal human beings (sociopaths aside) need to have the requisite expertise.
(iii) Moral authority and deference. It would be immoral to defer to moral experts. Suppose
someone is taken to be a moral expert. They say to you “Oh, you ought to do this”. But this raises
another ethical question: should you listen to the expert?
8. But what kind of expertise does applied ethics require?
(i) Substantive expertise and moral authority. That is, being in a better position than the average
person to know what is right.
•
The authority of priests (or other religious figures) who are granted special moral authority
by other believers.
•
The consequentialist who views our everyday moral practices as irrational. 2
(ii) General “procedural” expertise
•
•
•
Analytical and rational expertise: Ability to analyse, and make explicit, what is
ethically relevant (e.g., laying out the “structure” of the abortion debate)
Imagination (e.g., being able to think about the implications of new technology in
advance of their development and use)
Familiarity with wide range of ethical situations (good for analogical reasoning
“This case is just like this other one, though you might not notice it”
(iii)“Situational” aspects of expertise
•
•
Disinterestedness (not directly involved, won’t be blamed etc)
Time and resources: (e.g., the doctor cannot spend weeks deliberating about a
dilemma, she has to act there and then).
Also a division of labour is a good way to approach any problem. I.e., it is good for society to have
institutions and agents devoted to critically thinking about applied ethical challenges
10. Conclusion. Even if we reject the “substantive” notion of moral expertise (in 8.i) there is room
for applied ethical expertise, and, though this expertise need not be the sole province of philosophers,
philosophers may have the requisite abilities. This is the kind of applied ethics we shall be doing.
2
E.g., two of the most prominent figures in applied ethics — Peter Singer, John Harris — are consequentialists,
both argue that our everyday moral beliefs and practices are wrong.
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PHIL 223 APPLIED ETHICS
WEEK 2
Abortion
1. Last week we looked at the nature of applied ethics. Applied ethics comes into play, as
something philosophical, as something more than just the “application of ethical concepts”
because there are ethical challenges which, in turn, are situations which are ethically unclear.
We also noted that complex situations can be ethically unclear in a variety different ways. But
they all seem to have the “on the one hand . . . but on the other” structure. Ethical experts might
be able to sort out these challenges better than the average person, but this raised questions about
whether the idea of an ethical expert makes sense (and further issues about who would be the
expert? who decides what counts as expertise etc).
This week we will turn to the first of many examples: abortion.
2. The subject matter of the abortion debate – a couple of easy starters
We are concerned with:
i) deliberately induced abortion, not “spontaneous” abortion or miscarriage; nor are we concerned
with accidental “by product” of, say, surgery.
ii) focus on post-conception and pre-natural birth (noting that premature birth might be induced
by way of bringing about the abortion) – but note that one of the constraints on the abortion
debate concerns how various positions an arguments have implications for (a) contraception; (b)
infanticide (e.g., many people hold that abortion is permissible but infanticide not, the question is
why? some people hold that abortion is impermissible but contraception is permissible, but
why?).
3. But very quickly – things get difficult! Is abortion killing?
It might seem that the next step is to bring in the fact that abortion is the killing of something. But
if it is killing, what is it the killing of?
There is a vast amount of development over the period of gestation: starting with a non-implanted
zygote (the fertilised cell); an embryo (first eight weeks in humans), a foetus; then birth.
Note that some forms of contraception, e.g. the IUD “coil” and “abortifacient” pills (the morning
after pill)“kill” the fertilised zygote by not allowing it to implant.
But this kind of abortion/contraception may not seem much different from say, removing an
appendix, or other surgical interventions. Part of a living body is removed. But once we accept
this it also may seem to be true of the embryo and, perhaps, the early foetus. We are not talking
about something that can live on its own apart from the mother’s body. We are not talking about
something that looks like a human (it looks like a tiny blob of cells). So one response here would
be:
Abortion of zygotes or very early embryos is no different from the removal of organs or
tumours.
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4. So why do people assume abortion is killing, rather than surgery on the mother?
There are two views that we might have here.
(i) The zygote or embryo is a potential person/human being.
(ii) The zygote or embryo is an actual person or human being.
And it is this status, as a person, that makes abortion different from surgical removal of part of
the mother. Note that there are two issues here:
The foetal personhood issue: is the zygote/embryo/foetus a person
The implications of personhood for the morality of abortion:
(i) suppose the foetus is a person, does that mean that abortion is morally
impermissible? (always? sometimes? if so, when?) (ii) suppose it is not, does that
mean that abortion is permissible (always? sometimes? if so, when?)
Let’s start with foetal personhood:
5. Problems with the “potential person” view.
Why should mere potentiality be relevant here?
The junk lying in my garden might be used to make a beautiful unique statue, but it does not
mean that it would be wrong to dispose of that junk because that would rule out the potential
object of value.
How can one harm or wrong a merely potential person? How can a merely potential person
have, say, the right to life when it is not yet in a position to possess such rights? If we hold that
germ cells have a right to life, then any process which rids us of germ cells without aiming to
bring about new children ought to be prevented if possible.
Worse still: what does potentially mean? We can’t mean that the zygote will become a person
no matter what. Most fertilised eggs do not implant. So maybe we mean that zygotes are meant
to become people, just as acorns are meant to become oak trees. But why should this be of moral
relevance?
Doesn’t the same argument apply to contraception? individual germ cells (sperm and egg) are,
in this sense, meant to become people. This suggests that the consistent position would be to also
be against deliberate non-conception. We’d be stopping certain things – sperms and eggs – from
becoming people.
Even worse!! Every cell in your body that contains DNA (i.e., virtually all of them, excluding
red blood cells) could be the basis for a cloned offspring. So when you shed skin, or spit, or cry
tears, you may be ridding yourself of things which could become a person (given new
technologies).
So, if we take the view that abortion is wrong because it is the killing of a potential – but not yet
actual - person, we should be against contraception too. (If you disagree with this, then: what’s
the difference?)
6. Problems with the “actual” person view
21
The “potential” person view is that the zygote is not a person but is going to become a person.
The actual person view is that the zygote is a person already! This raises the question: at what
stage in development does a person come into being. The answer to this question depends very
much on another
(b) what is a person?
(c) what is the correct criterion for something’s being a person
Here are some examples
(a) A person is something that has a soul, and the soul arrives in the zygote at conception.
(b) A person is something that has reason (but the zygote has no reason).
(c) A person is something that has interests (zygote may or may not have interests; this would
also include animals)
(d) A person is a conscious being (but what about people asleep, or in comas, or babies?)
(e) Anything that looks like a person is a person (statues? robots?)
If we draw upon these criteria of personhood then there will be disagreement about when
personhood begins. Which criterion of personhood is the correct one?
One underlying problem here is that different parties to the abortion debate may be drawing upon
different conceptions of what constitutes a person.
INITIAL CONCLUSION – the “personhood” debate doesn’t seem to get us very far.
Leads to taking sides, with little prospect of progress.
7. Marquis on why killing is wrong: depriving the foetus of a “future like ours”
Marquis moves us away from the “what is personhood” and focuses directly on why killing is
wrong. Killing is wrong when it deprives a creature of a future like ours. He argues that this
captures our intuitions about most cases, and that it is better than rival accounts of why killing is
wrong. We don’t have to worry whether the foetus is a person, we only have to ask: do we
deprive something (whatever it is) of a future like ours.
8. But does the fact that killing is wrong mean that is impermissible?
Suppose we accept Marquis’ argument, or, suppose we accept that an embryo is a person. Does
this mean that it is absolutely impermissible to ever kill an embryo?
Unless we hold that killing is never justified, it may be that abortion falls within the class of
permissible killings.
For example: we allow killings in cases of self-defence. This might be relevant if the mother will
die if she continues to carry the foetus.
Or, sometimes — e.g. in war —we accept a consequentialist argument, that killing is justified
because of its consequences. So might argue that if a woman’s life, or her family’s life, will be
made very hard by giving birth to another child, it is justifiable to kill the child.
9. Thomson and the famous violinist
Thomson, like Marquis, tries to move us away from the intractable debate about foetal
personhood. Suppose we accept that the zygote is a person: what follows? Judith Jarvis
Thomson offers a subtle argument.
22
But now let me ask you to imagine this. You wake up in the morning and find
yourself back to back in bed with an unconscious violinist. A famous unconscious
violinist. He has been found to have a fatal kidney ailment, and the Society of Music
Lovers has canvassed all the available records and found that you alone have the
right blood type to help. They have therefore kidnapped you, and last night the
violinist's circulatory system was plugged into yours, so that your kidneys can be
used to extract poisons from his blood as well as your own. The director of the
hospital now tells you, "Look, we're sorry the Society of Music Lovers did this to
you --we would never have permitted it if we had known. But still, they did it, and
the violinist now is plugged into you. To unplug you would be to kill him. But never
mind, it's only for nine months. By then he will have recovered from his ailment, and
can safely be unplugged from you."
Is it morally incumbent on you to accede to this situation? No doubt it would very
nice of you if you did, a great kindness. But do you have to accede to it? What if it
were not nine months, but nine years? Or longer still? What if the director of the
hospital says, "Tough luck, I agree, but you've now got to stay in bed, with the
violinist plugged into you, for the rest of your life. Because remember this. All
persons have a right to life, and violinists are persons. Granted you have a right to
decide what happens in and to your body, but a person's right to life outweighs your
right to decide what happens in and to your body. So you cannot ever be unplugged
from him."
I imagine you would regard this as outrageous. . . .
Suppose we agree that it is wrong to kill embryos. This does not imply that we have a duty to
provide the resources for life, when we are not responsible for standing in that relationship.
Involuntarily being placed in a relationship where another’s right to life depends upon one’s own
actions (I didn’t ask for this).
Related example – suppose seeds drifted in the wind and became implanted, and some people
grow this way – would it be wrong to remove them?
10. Objection: doesn’t the foetus have a “right to life”?
Well, we would have to say more about what that right is and, in turn, this would depend upon
whether or not we hold that the foetus is a person. But what Thomson’s argument does is prise
apart two different kinds of right:
11. Positive and negative rights
Negative right imposes obligation to refrain from acting in certain ways (e.g., right to free speech
imposes obligations to refrain from silencing)
Positive right imposes obligations on others to do certain things.
So a negative right to life would include the right not to be killed.
A positive right to life would be the right to be provided with the material and sustenance
necessary for life.
There are problems with both the negative and the positive right.
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The negative right – the right not to be killed – may be overridden for reasons of “self-defence”
(see Thomson’s “expanding baby”) e.g., when the mother risks being killed by her baby.
Suppose we hold that there is a negative right to life, and there is not serious risk to the mother.
The violinist example is meant to show that it may be much harder to establish the positive right
to be provided with whatever one needs to maintain life (see the “Henry Fonda’s cool hand”
example). The violinist has no right to use your kidneys. Similarly, Thomson argues, the mother
doesn’t seem to be obliged to provide the child with sustenance, at least in these cases where she
did not choose to get pregnant, and, indeed, took measures to avoid it.
So this raises the question: how does the foetus gain a right to use the mother’s body?
12. A note about moral vocabulary.
Thomson draws attention to the fact that the debate about abortion tends to be framed in an overly
simplistic moral vocabulary — in terms of whether abortion is right or wrong, or permissible or
impermissible. She notes that someone may be mean or indecent to another (e.g., by not sharing
their chocolates) without being unjust and without breaching any right that the other party has.
This is particularly important because it allows us to properly engage the variety of situations
within which an abortion might be performed. E.g., a fourteen year-old pregnant from her drugaddict boyfriend; a woman who wants a late term abortion because she would prefer a summer
birth, not autumn (and she’ll try again next year).
13. Conclusion
One key point to stress here is that there is much more, and much more subtlety, to the abortion
debate than just the debate centred on the question: is the foetus a person? We have viewed two
different arguments, pro and con, which try, in their own way, to move us beyond this simple
and, to be frank, stagnant “debate”. Marquis tries to get us to focus on what is lost in abortion: an
instance of a future like ours, whether or not the foetus is, or is yet, a person. One problem with
Marquis’ view is that it seems to apply equally to contraception. Another is that it is very much
an “all or nothing” view, and does not give us any sense in which some abortions might be
permissible (e.g., in cases of rape, or “self-defence”).
Thomson — though she doesn’t believe it — assumes that the foetus is a person, for the
sake of argument in order to see what follows from this. This gets us to focus, not on the issue of
foetal personhood, but upon why and when the killing of a foetus might be wrong, and upon the
richer moral vocabulary that we have available to describing such acts. Some abortions are
permissible, because the foetus doesn’t have a positive right to receive sustenance from the
mother, and though it may be mean to do so, abortion in certain contexts may not be unjust.
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PHIL223
WEEK3
Designer Babies
1. Review.
Last week we focused on the ethics of abortion, and upon the way that the abortion debate
tends to be framed in terms of the (intractable) “foetal personhood” issue. This week and
next, we turn to a related topic: new genetic knowledge and technology in shaping can help
parents, not just to achieve the birth of a child, but to select, in some sense or other, what kind
of child comes to be born. Is it right to select the traits of one’s child? Is it simply a matter of
parental choice? This week the aim is to do two things:
(i) To go through a brief and simple introduction to genetics (i.e., those bits that are
relevant to our topic)
(ii) To look at the ethics of individual reproductive decisions (e.g., parents deciding
about their future children).
Next week we turn to “eugenics” and to questions about whether society ought to have a say
in deciding what kinds of people there should be.
2. What are genes?
(a) Genes as units of heredity.
Gregor Mendel’s pea plants. Mendel (1822-1884) didn’t know how inheritance of traits
(observable characteristics) came about but he worked out something very important about
the orderly nature of inheritance of traits. Mendel bred tall pea plants (i.e., using “true
breeding” seeds from stock that always gives tall plants) with (true-breeding) short pea
plants. This gives rise to a new generation, not of medium sized plants, but all tall! But
when he bred a second generation of pea plants from these tall plants roughly a quarter of the
second generation turned out to be small (and the rest are tall). Mendel did the same kind of
experiment for other “traits” of pea plants (e.g., yellow seeded plants bred with green seeded
plants; green pods versus yellow pods). Mendel noticed that the inheritance of one trait (e.g.,
greenness of pod) seemed to be independent of other traits (e.g., height)
This is very odd. The first generation are all tall, even though one of their parents is
short; the second generation is ¼ short, even though both parents are tall; and the inheritance
of one trait seems to be independent of another, but each trait seems to exhibit the same
pattern. How do we explain these regular patterns of inheritance?
Mendel proposed that heredity involves discrete “units” or “factors” (what others later
called “genes”). Mendel suggested that, for traits like height, each pea plant has two of these
units (genes); the units can vary (i.e., be responsible for tall or short plants) – we now call
these the different alleles of a gene (i.e., the alternative forms a gene can take); each “parent”
plant only passes on one its units to the offspring plant. So, with our first generation we
have the following.
Tall plants each have two “tall” factors (let’s label them with “T”) = TT
Short plants each have two “short” factors (let’s label them with “t”) = tt
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If offspring inherit one factor from each parent then all the offspring will inherit a T from the
tall plant and a t from the short plant = Tt.
The second generation is bred from these “heterozygous” Tt plants. But now there are four
options. Each plant might inherit either a T or a t from its parent. So, the second generation
will be either TT, Tt, tT or tt.
Mendel suggested that we can make sense of the peculiar pattern of trait inheritance if
we postulate these hypothetical units, and, if we accept that there are certain “laws” of
heredity. First, that one trait can be dominant. If an offspring plant inherits one or more T
alleles it will be tall (it needs to have two “t”s if it is to be small). Smallness is a recessive
trait. Two tall plants can give rise to short offspring: i.e., if both of the parent plants are Tt,
there is a 1 in 4 chance that the offspring will inherit the t from each parent.
In modern terminology we would use terms:
“GENOTYPE” for the Ts and ts. T and t are two alleles of the gene “for” tallness.
“PHENOTYPE” is the term for the observable traits (yellow pods; tall plants; wrinkled seeds
etc)
A plant with the TT or tt genotype is “pure” or “homozygous” with regard to the “tallness”
gene; a plant with Tt is hybrid or “heterozygous”. A recessive trait need not be exhibited in
the phenotype of either parent (parents can be “carriers” of the allele for the trait in question).
(b) The molecular basis of heredity: genes as “functional” sections of DNA
Mendel did not know anything about the biological and chemical mechanisms of heredity.
In the twentieth century biologists and chemists worked out just how Mendel’s patterns of
heredity are brought about.
At the centre of all this is a complex molecule –
deoxyribonucleic acid, or DNA.
What is DNA? DNA molecules are arranged as a “double helix” – two strands interwoven
together in a spiral shape. Each strand consists of a long chain of four different molecules:
adenine (A); cytosine (C); guanine (G); thymine (T). The two strands that make up the
double helix are complementary: each molecule in one strand pairs with a complementary
molecule in the other strand (A with T; G with C). DNA is found in the nucleus of every cell
in our body (except for red blood cells). DNA is wound up into bundles known as
chromosomes. Human bodily cells (normally) have 23 pairs of chromosomes. Sex cells
(gametes) only have 23 pairs (and this fits in with Mendel’s idea that parents pass on half of
their genetic material to their offspring).
At the end of this handout is an appendix which outlines a bit more about what genes do. For
our purposes what matters is that new genetic knowledge and technologies allow us to learn
something about individual people’s DNA, and about how DNA sequence correlates with
certain traits. E.g., by testing a potential parent, one can tell whether they have the “allele”
(or gene) “for” a disease (see note of caution at the end about this way of talking).
3. The reproductive “lottery”
Up until very recent times, human beings had very little control over the results of their
reproductive efforts. If parents desired, say, a male child, their only option was to continue
26
procreating until they had one, without any guarantee that this would occur. Two healthy
parents can (and often do) fail to be able to produce children; similarly, healthy parents can
produce sick, unhealthy, short-lived offspring at a cost of deep distress and pain affecting
many individuals. .
4. Improving on the lottery – traditional “folk” knowledge of heredity
Knowledge of heredity, and Mendelian genetics, provide a limited resource for controlling
the outcome of reproduction. First, one can advise people as to their reproductive partners
(i.e., if both partners have a history of a recessive disorder in their family, detailed knowledge
of the family history will indicate the (increased) likelihood of that couple having an affected
child (the element of choice here is: reproduce with this person, or another). Second, one can
advise couples as to the likelihood of their offspring being affected (the element of
reproductive choice here is: reproduce or don’t reproduce).
5. Better still: genetic (DNA) testing
DNA testing is a much more informative resource for making reproductive choices.
Carrier testing
DNA testing allows potential parents to find out if they and/or their partner is a “carrier” of a
disease (e.g., cystic fibrosis; sickle cell anaemia). This may give people with a family history
of a recessive disease the “all clear” to go ahead and have children (or it may suggest that
other parenting options, such as adoption, may be more appropriate).
POSTNATAL/newborn genetic testing – not really to do with reproductive choice for the
child who has been born, but may affect decision to have more children (postnatal tests allow
appropriate treatment to be given to the child at an early stage before observable symptoms
develop).
PRENATAL genetic testing
Foetuses can be tested for certain genetic conditions whilst in the womb. E.g., Down
syndrome – (to determine whether the foetus has three copies, rather than two, of chromosme
21). Such tests are invasive (amniocentesis – drawing material from the sac surrounding the
foetus; chorionic villus sampling – drawing material from the placenta) and they involve
some risk to the foetus, though non-invasive tests are being developed.
Here the
reproductive choice is: continue with, or terminate, the pregnancy.
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PRE-IMPLANTATION GENETIC DIAGNOSIS (PGD) (sometimes “PID”)
Unlike prenatal genetic testing, the testing is done before implantation. PGD involves the use
of assisted reproductive technology (ART). The mother is injected with drugs that cause
her to ‘super-ovulate’ i.e., produce a number of eggs; these are removed and fertilised in
vitro. After about 3 days the fertilised cells have divided to form clusters of 8 cells (a
blastocyst). A cell is removed from each blastocyst and DNA is extracted, amplified, and
tested for various (suspected) conditions. Three of the blastocysts that “pass” the genetic test
are implanted in the womb, the remainder are destroyed. Some of the implanted blastocysts
develop normally and the parents are secure in the knowledge that the child will not have the
(tested for) traits in question.
Though PGD tests are available for dozens of genetic
conditions, PGD is expensive, only performed in a few clinics, and not widely used.
GENE THERAPY
Gene “therapy” is where “faulty” genes, or sequences of DNA, which cause or are relevant to
disease, are replaced with “normal” copies. Somatic gene therapy is where a “vector”
(typically a virus) is used to pass normal DNA into the faulty cells of a child or adult. Such
changes will not be passed on to further generations. Germline gene therapy by way of
contrast involves changing the DNA in “germ” cells (sperm or eggs) and this will have
implications for future generations. So far, germline therapy is in its infancy, and has not
been used on humans. For our purposes we will focus on gene testing, especially PGD.
6. What’s wrong with PGD?
(i) Destruction of embryos and foetuses
(a) Prenatal testing: abortion assumed to be the “favoured” option if genetic abnormality is found
(though medical practitioners cannot compel the parents to abort the foetus).
(b) PGD – destruction of (very early) embryos. Some religious groups (e.g., Roman Catholics) hold
that embryos have human status right from conception; other religious groups argue that only more
mature foetuses ought to be treated as human beings in their own right. Western Atheist ethics tends
to allow destruction of foetuses up to a certain age (in the UK up to 24 weeks unless there is
substantial risk to the mother’s life or if there are severe foetal abnormalities)
(ii) Stigmatising those who have the ‘rejected’ condition (see the article by Eric Parens on the
reading list)
Some people live full and rewarding lives even though they have certain genetic conditions, ones that
would be ‘screened out’ by genetic testing. Disability rights activists argue that the destruction of
these embryos and foetuses makes it seem as if it would be better if they had not existed. We’ll come
back to this in discussion.
(iii) Undermining the parent-child relationship.
If parents can select the traits that there child has, this undermines the view that parents should love
their children no matter what traits they have. Children may feel that they are not loved as
individuals but only because they happen to be healthy, clever, attractive etc.
(iv) The problem of low penetrance genes.
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The ‘penetrance’ of a gene is the likelihood that someone with the (harmful) allele will develop the
(harmful) trait. Some clinics offer PGD for low penetrance genes involved in cancer (and, in the
future, if PGD becomes more widespread, tests may be included for many low penetrance genes). But
this means that parents are ‘getting rid’ of an embryo that may not develop the trait.
(v) The ‘slippery slope’ objection.
If we allow parents to select children’s traits, why not allow them to select the sex of their offspring?
What about eye colour, hair curliness, height, tendency to obesity, skin lightness? What if
developments in genetics allow parents to test for (probability of) being an alcoholic, or being
extrovert? Should tests be allowed for ‘carrier’ status? What about ‘late onset’ conditions (like
Alzheimer’s disease) that will probably not affect the offspring until she is very old, and by which
time, who knows, a cure might be found?
(vi) The ‘playing God’ objection.
This appears in the media a lot. The idea is that (a) human beings have no right to do things that only
God can (or could) do; and (b) PGD involves playing god.
(vii) The ‘it’s unnatural’ objection.
The form of this objection is that there is something ‘unnatural’ about PGD and assisted reproduction
generally (this may be accompanied by, or viewed as a variant u pon, the ‘playing God’ objection.
7. Designer babies, genetic disease and the ‘treatment/enhancement’ distinction.
Parents spend a great deal of effort and money making sure that their offspring are healthy and happy.
Many parents are very keen that their children should succeed, or do better in life than they did, and,
to achieve that end, they are willing to make considerable sacrifices (paying for extra tuition;
educational trips abroad; private schools and so on). In the future it may be possible to identify some
of the genetic elements that contribute to psychological and behavioural traits (for example, there is
some evidence that there is a strong genetic component in ‘risk-seeking’ behaviour). If we allow
parents to select an embryo free of disease, why not offer them further choices? Why not allow them
to choose the most psychologically healthy, most competitive, most musical, most attractive child? If
we let parents ‘buy’ advantages in life for their children by paying for a rich educational environment,
why not let them buy a rich genetic endowment for their offspring too?
We’ll come back to this in the workshop tomorrow.
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APPENDIX
1. WHAT DOES DNA DO?
(a) Replication of individual creatures. DNA is involved in the replication of whole
creatures. Why is it that monkeys give birth to monkeys; dogs to dogs; people to people?
DNA is wound upon in 23 pairs of chromosomes. Sex cells or gametes (sperm, ova) are
formed by a process of meiosis where new cells are formed with only 23 chromosomes (i.e.,
half a bodily cell’s chromosomes) In sexual reproduction the genetic material from two
gametes recombine and the offspring has a full set of 46 chromosomes (half inherited from
each parent).
(b) Mechanism of inheritance. Each individual has DNA (in all their cells) that is a
mixture of their parents’ DNA and thus their parents’ genes. Most genes are the same for all
humans (which is why we all have two eyes, and no wings, etc.). But some genes are found
in variable forms: different alleles. DNA is the mechanism for the regular patterns of
Mendelian inheritance noted above. Certain traits “run in families” and this is because the
relevant sections of DNA responsible for the trait (i.e., the bits that play the role of Mendelian
genes) are “passed on” from one generation to another.
(c) Cell replication. DNA provides a way of replicating cells – in mitosis one cell gives
“birth” to two copies. The “double” and “complementary” nature of DNA explains how DNA
can replicate. The DNA strands separate and each strand is used as a template to build the
complementary strand, so we end up with two exact copies of the original double helix (like
unzipping a zip and using each half as the template for making a complete zip).
(d) Cell differentiation and development of complex organisms. Complex organisms
have many different types of cell, performing many different roles (e.g., muscle cells, brain
cells, cells in the retina etc). DNA contains the “instructions” that direct the formation of the
right cells at the right point in development.
(e) Making our bodies work. The precise arrangement of DNA within a cell determines
what goes on within the cell from moment to moment. Some sections of DNA control the
activity of other sections of DNA (i.e., some genes “tell” other genes when to switch on or
off). The arrangement of DNA determines the production of proteins (the basic building
blocks of living material) in the cells. Just what happens from moment to moment depends
on the kind of cell that the DNA is in and the kind of “environmental” input to the cell. All
our bodily activity – digestion, formation of blood cells, production of antibodies;
replacement of cells; hormone release; oxygen transport, brain activity, etc.– depends upon
the way that DNA influences the production of proteins in cells in certain contexts.
The above points are often made by saying that DNA contains “genetic information” – i.e.,
information that “tells” cells what to do and when; information that is passed on from
generation to generation. Popular metaphors include DNA as book; tape; code; blueprint; set
of instructions.
SOME POINTS FOR CAUTION
(i) Complexity. Genetics is more complicated than the simple Mendelian genetics example
above: e.g., (a) in many cases lots of different genes determine a trait (polygenic traits like
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eye or hair colour) so the patterns of inheritance may not be as clear cut as the simple
examples above. On the other hand, some genes, influence more than one phenotypic trait
(pleiotropy); e.g., the gene “for” sickle cell anaemia protects against malaria if the individual
has one copy of the allele, but causes anaemia if the individual has two copies. Genes are
not as independent as Mendel thought (alleles that are closer together on the genome are
more likely to be inherited together). Some genes have more than two alleles (e.g., the gene
“for” Huntingdon’s disease widely varies in the number of CAG repeats, only those with a
large number of repeats (CAGCAGCAG . . . at that point in the genome) will develop the
disease.
Diseases that are caused by alleles found on the sex chromosomes exhibit distinctive
patterns of inheritance. X-linked traits are inherited on the X chromosome. Females have
two copies of it, one from each parent, males have one X chromosome (from their mother)
and a Y chromosome from their father. Haemophilia, for example, is X-linked recessive: the
‘faulty’ allele is on the X chromosome, but women have a second ‘working’ copy; men only
have one X chromosome, so if they inherit the allele, they inherit the trait (women are
‘carriers’ for this condition).
(ii) Genetic determinism. Strictly speaking, genes don’t, by themselves, determine
behaviour, or thought. Genes don’t really determine anything, even the proteins that they
‘code’ for. In order for genes to do anything the right kind of environment has to be present
(e.g., a sex cell chucked into a fire, or into a vat of acid, is not going to produce anything.
Suppose that a creature is in an environment that allows it to live. What the creature’s genes
do depends upon what happens in that environment. E.g., if Mendel’s “tall” pea plants are
badly nourished, they will not grow tall. What genes do is determine the production of
proteins, relative to a certain environment (e.g., the arctic fox produces fur pigment only in
warm weather). What we usually do is take the “normal” or “typical” environment for
granted and then focus upon what different genes do (and this makes us leave out the
importance of the environment). In such contexts it may be quicker to talk about a gene
determining certain traits (i.e., relative to that environment) even if, strictly speaking, the
outcome is always a result of gene-environment interaction.
(iii) Genes “for” traits. It’s usually misleading (though very easy) to talk about a gene for
some trait (e.g., a gene for blue eyes). Eye colour is determined by a number of genes,
which, in turn, determine the amount of melanin produced in the iris. There is, for example,
no gene “for” producing a “blue pigment”, there is only an absence of the alleles of the genes
which produce large amounts of melanin in the iris.
(iv) Geno-hype. We need to be wary of hyped up claims about the status and importance of
contemporary genetics. E.g., recent reporting of the “completion” of the human genome
made it seem that we now have the “book of life”. What we have is a list of the nucleotides
that make up the DNA of (a few) human beings. This tells us nothing, by itself, about what
genes do, and how they do it.
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APPENDIX 2
USEFUL TERMS
Genotype – the genes present in an organism
Phenotype – observable characteristics (traits)
of an organism (e.g., being tall; having curly
hair; having blue eyes etc.)
Alleles – different forms of the same gene
Homozygous – same allele (e.g., TT, tt)
Heterozygous – different allele (Tt; tT)
Dominant trait – trait that is ‘expressed’ if the
subject has at least one copy of the allele (Tt; tT;
TT). 3
Recessive trait – trait that is expressed ONLY
if the subject has two copies of the allele (tt)
Gamete/germ cell – reproductive cell with one
(unpaired)set of chromosomes
Somatic cell – bodily cell with two, paired, sets
of chromosomes
3
Given that dominant disorders are rare in the population, dominant disorders are typically heterozygous (i.e.,
only involve a single copy of the allele, given that a homozygous dominant trait would require both parents to
have the dominant disorder allele, and this will be rare).
32
PHIL 223 APPLIED ETHICS
WEEK 4
Eugenics and Social Engineering
1. Health and reproduction: private versus public?
So far we have been thinking about reproductive choice, and genetic testing, as primarily a private
matter: individuals making decisions about the kind of child that they want to have; individuals
deciding whether or not they will seek genetic testing. But reproduction, health and child rearing are
not private matters. The reason why is that other people are implicated in these seemingly private
decisions.
(i) Reproductive decisions essentially have implications for another person who is not
involved in the decision-making process: the child/children.
(ii) Reproductive decisions typically have implications for many other people: e.g.,
suppose two parents, one of whom has a “dominant” genetic disorder, decide to have lots of children,
knowing full well that many of their children are likely to develop the disorder. This has implications
for those who have to care for the child (and in the UK, given the publicly-funded National Health
Service, the costs of caring for these sick children is passed on to other people.
More generally: we already accept that health is not a private matter. A person with rabies or
tuberculosis can be confined (against their will) in order to protect the public health. Child rearing is,
similarly, not a private matter. Parents who do not ensure a proper standard of care for their children
risk having their children taken away (to be ‘cared for’ in public institutions). There are massive
social and economic costs to a society and its members if those members are ill or diseased.
2. Disease and public policy
Governments and international agencies like the World Health Organization fully understand the
enormous costs of disease and have policies aimed at the reduction or eradication of disease. Some of
these are educational, others involve the supply of the right kind of (socially-funded) healthcare to
those who could not otherwise afford it; some policies have an element of compulsion. Disease and
ill health are bad, and it is right that national and international institutions should aim to eliminate or
reduce the prevalence of disease.
For example Smallpox used to kill two million people a year worldwide and many millions more were
left seriously disfigured and disabled by the disease. In 1967 the World Health Organization began a
worldwide vaccination programme. This involved the compulsory vaccination of individuals in areas
of the world where smallpox was rife. By 1980 the disease was eradicated.
The eradication of smallpox is, surely, a good thing. But there are also lots of genetic conditions that
cause a vast amount of suffering. About five percent of admissions to children’s hospitals are as a
result of single-gene genetic disorders.
3. Eradicating genetic disease?
Some genetic conditions seem to be amenable to eradication (at least in principle, leaving aside the
question of how much all this would cost). Wouldn’t the world be a better place if people did not
have to suffer cystic fibrosis (years of expensive treatment followed by early death); or, worse, LeschNyhan syndrome (a recessive genetic disorder) with a wide range of horrific symptoms (including
pain, vomiting, convulsions, the compulsion to viciously bite one’s own fingers and lips, followed by
early death). New genetic knowledge and genetic technologies allow a way of ridding the world of
such genetic conditions by genetic screening, testing, PGD and (in the future, perhaps) gene therapy
(see last week).
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4. Eugenics.
“Eugenics” is a word with negative connotations. ‘Eugenics’ is a word coined by Francis Galton (in
1883). It comes from the Greek for ‘good birth’. Galton (Charles Darwin’s cousin) argued that just
as farmers and animal-breeders don’t leave reproduction to chance, we should seriously consider the
selective breeding of human beings. Galton, like many nineteenth century thinkers, worried that
developments in medicine and hygiene might lead to degeneracy. This line of thought was thought
to be supported by the (then new) theory of evolution by natural selection. People who would once
have died of a disease in childhood were now living and reproducing. Some worried that ‘healthy’
people might eventually be ‘swamped’ by diseased people, allowed to reproduce.
In the early
twentieth century every Western country enacted eugenic policies of some kind or other.
(1) Positive Eugenics: aims to increase the breeding of children with favoured ‘good’
traits.
(2) Negative Eugenics: aims to decrease the breeding of offspring with ‘bad’ traits.
5. Four important points about ‘traditional’ eugenics
•
•
•
•
Very broad scope Traditional eugenicists were not solely concerned with the ‘breeding out’
of biological disease. A great deal of their concern was with behavioural and ‘personality’
traits. ‘Good’ traits like being strong willed; honest; clean were to be encouraged; ‘bad’ traits
like alcoholism; mental illness; dishonesty and theft were to be bred out.
Lack of Evidence: Traditional eugenicists’ beliefs had very little evidence in favour of traits
being heritable. What they did, roughly, was note that certain traits seemed to ‘run in
families’. Poor criminal families seem to give rise to poor criminal offspring; rich honest
families seemed to give rise to rich honest offspring (ignoring the widespread vice and
dishonesty in the ruling wealthy classes). For example, the prominent American eugenicist
Charles B. Davenport (1866-1944) argued that there was a (sex-linked) gene for
‘thalassophilia’ – or love of the sea – that predisposed male offspring of sailors to follow in
their fathers’ footsteps.
Downplaying environmental factors. Eugenicists tended to completely ignore the possibility
that environmental factors might be as important (or more important) than genetic ones
(children of poor parents grew up poor because, in those days, they received virtually no
education, and thus were severely restricted in terms of making a living).
Limited methods available. Eugenicists had limited methods available – if you wanted to
influence who was born this requires either – determining whom people reproduce with, or
ensuring that certain babies aren’t born (either by sterilizing (or worse, killing) certain kinds
of potential parent, or by forced abortion).
6. What was wrong with traditional eugenics?
Suppose we restrict our attention to eugenic reproductive policies: i.e., ones that determine what kind
of person will be born. What was wrong with the eugenic policies of the early Twentieth century?
Here we need to distinguish between
o
o
voluntary, or liberal, eugenic policies
authoritarian or enforced eugenic policies.
Many Western countries had enforced negative eugenics policies whereby the ‘feeble-minded’ were
incarcerated and/or sterilized (about 30,000 sterilisations in the U.S.). In Nazi Germany there was
selective breeding of the ‘racially pure’ enforced sterilisation of hundreds of thousands of mentally
‘weak’ individuals; and the state-run murder (‘euthanasia’) of children in institutions and adults
34
suffering from genetic diseases. These programmes were often based upon poor science, and are
ethically problematic because they are coercive and use force, they override or impinge upon
individual freedom, especially reproductive freedom, and, typically, such programmes force one
group’s (arbitrary/self-serving) idea of ‘favourable trait’ onto others
7. Contemporary liberal eugenics
There are few serious advocates of traditional state-centred authoritarian eugenics today. But there
are advocates of liberal eugenics: the idea here is that parents (who normally have the best interests of
their offspring in mind) should be permitted to select, or engineer, better children (or, relatedly, to
avoid having “poorer” children). Liberal eugenics is not forced upon people. It does not draw upon
the state’s idea of what all people ought to be like. Indeed, it may seem no different from allowing
parents to shape their children’s post-natal environment (with tuition, private schools, good food etc)
8. Problems with liberal eugenics –
(i) General objections to the methods (link to the abortion debate)
(ii) Injustice: Gene-rich and gene-poor
(iii) Undermining authenticity and autonomy of the child (who may be restricted in her life plans)
(iv) Undermining parent/child relationship (not loving children for their own sake, but as “trait
holders” - e.g., blonde piano playing thrill seeker)
(v) Misunderstandings and lack of knowledge (e.g., view that genes determine traits)
(vi) Need for some constraint on what parents might choose (e.g., deafness?); related problem –
stupid and ill-informed parents
(vii) Stigmatising the disabled (or those with other “unfavoured” traits)
(viii) Reducing diversity: if
(ix) Eugenics is ‘unnatural’/against God’s will/slippery slope objections.
35
PHIL 223 APPLIED ETHICS
WEEK 6
FREEDOM OF SPEECH
1. Review
In week 4, before reading week, we looked at eugenics and this raised questions about the
relationship between individual freedom (reproductive freedom) and the interests of others,
including the state and other institutions. This week we turn to a broader area where issues
arise about how we ought to balance various rights and interests in society: debates about the
scope and limits of a “freedom of speech” right.
2. Reminder: positive and negative rights
When we looked at the abortion debate and the “right to life) we distinguished positive and
negative rights. Rights imply obligations on others. A negative right implies an obligation
on others to refrain from certain actions (especially actions that impinge upon, or constrain,
the right-holder in certain ways) a right to life, you’ll recall, is typically a negative right (not
to be killed). A positive right, by way of contrast, implies certain “positive” obligations on
others. A child’s right to education implies that others ought to provide it (and not just to let
her fend for herself). Rights to speak freely are negative rights: a right against being
constrained, sanctioned, imprisoned, etc.
3. The interests that matter for debates about freedom of speech
One useful way of thinking about rights is that rights protect people’s important interests.
E.g., the “right to life” protects the interest that each of us has in remaining alive. What about
freedom of speech? What interests are involved here?
(i) Speakers’ interests
(ii) Audience’s interests
(iii) The interests of bystanders, others who are affected, and “society at large”
Now, each of these categories of interests is itself quite complex. Each of us plays the role of
speaker, audience, bystander, member of society. But all of us has many interests which are
served by free, truthful and reliable, communication. For example, if we are to live a
worthwhile life it is important that we know certain things (including: facts about how the
world is; facts about what kinds of activity are worth pursuing). Most of the things that we
know, we learn from others, from their “speech” (including, texts, books, TV, webpages etc).
Restricting speech radically restricts what people can come to know, and thus puts restrictions
on how they can reasonably act.
Speakers have various interests too. If we firmly believe that we have discovered
something true and important, and if we believe that others do not know of this important
fact, we may want to communicate it with others.
What about “society at large”? For a democratic society it is be important that free
and open debate about important issues and that criticism is allowed of those in power and of
their claims and arguments. If free speech is not allowed, then those in power may silence
criticism and, in effect, undermine the possibility of fair democratic participation in society.
36
In modern pluralistic societies, where there are different cultures and religions, a right
to free speech may seem to be even more vital otherwise one culture (the one in power) may
try to silence the culturally important claims and speech of members of other cultural groups.
Viewed this way, it seems that there is good reason for free speech to be protected:
that is, rather than having punishments or disincentives for those who speak freely, the force
of law should be brought to bear on those who seek to curtail speech.
4. Mill’s “Harm Principle”
A right to free speech protects a wide range of important interests. But sometimes speech
may impinge upon other important interests. One challenge that faces liberal democratic
societies—societies with good reason to be committed to a right to free speech—is that
certain kinds of speech can harm others.
J.S. Mill’s On Liberty (which is a central text in modern liberal political thought) is
concerned with the limits of state intervention in the lives of sane adults. Mill argued that
there is one simple principle which we should draw on (what later authors have come to call
“The Harm Principle”)
The only purpose for which power can be rightfully exercised over any
member of a civilised community, against his will, is to prevent harm to
others.
Mill’s harm principle is a liberal principle: people should be free (at liberty) to do whatever
they want, even if they harm themselves, provided that their actions do not impinge upon the
freedom of, or interests of, others in such a way as to constitute harm to them (we’ll come
back to this in later weeks when we look at paternalism).
Mill’s harm principle provides a simple line of argument. People ought to be allowed to say
what they wish, provided that what they say does not harm others.
But how could the state exercise its power to prevent harm? If someone wants to say
something, how can the state stop them without killing them, or cutting out their tongues etc?
On some occasions this may be possible if, say, the police know that a racist group intend to
torment a racial group with their chants. More generally, the state can play a role in
restricting speech by motivating people to refrain from saying certain things by the
introduction and enforcement of laws, together with sanctions and punishments. If you know
that might be sent to prison for ten years for saying or writing something, this cannot
absolutely stop you from doing so but makes it much more costly to do so.
5. What is harm? Badmouth Bob and Poor Mary . . .
Mill’s principle raises some key questions: first there is the question what constitutes harm?
There are many different kinds of and levels of harm. Consider some everyday examples
involving “Badmouth” Bob and his girlfriend, “Poor” Mary:
•
•
Bob promises Mary that he will help her to move house. Bob’s promise was “mere
words”, he had no intention of helping her. Mary relies on him, but ends up having to
move her stuff on her own, and badly hurts her back.
Bob reads out Mary’s soppy love poems, snorting with derision and in front of Mary,
in the pub to his braying “mates”. Mary is ashamed and devastated.
37
•
•
•
Bob learns that Mary’s mother is dying, and may not make it through the night and
that she wants to see Mary for the last time. Bob rings Mary up, chats for ages, but
deliberately fails to mention anything about Mary’s mother. Her mother dies. Mary
is devastated to have missed the chance to see her mother one last time.
To make amends, Bob rings up Mary the following week and tells her, falsely, that
her father, who has not spoken to Mary in years, is dying, and wants to see her. His
lies leave her devastated and the father annoyed.
Mary, bizarrely, forgives Bob: she “loves” him and knows that he is “the one”. One
warm evening Bob goes down on one knee and says “I have something important to
say” she thinks this is “the big question” but Bob simply informs Mary that he thinks
she is “pug ugly” and adds “no way could I ever love someone as worthless as you”.
Mary is devastated. etc etc etc
Now, in each of these examples, poor Mary is harmed by Bob’s speech in various ways. It is
clear that Bob is cruel, heartless, and a “bit psycho”, but should the force of law —and could
the law — be used to restrict or discourage this kind of speech?
6. Mill’s specific concerns: free and open expression and debate
In Mill’s view such speech — even though it clearly harms Mary — should not be the object
of legal sanction. There are two reasons for this.
(1) Mill’s concern is a narrow one: primarily with the kinds of speech that are involved in
free and open debate about how we ought to live (e.g., expression of religious, ethical, and
political views), and not with everyday petty nastiness.
(2) What Mill has in mind by “harm” is something quite extreme: i.e., the kind of harm that is
extreme enough to warrant to overriding a general protection of free and open debate.
The fact that you are annoyed by, or very upset by, what someone says is not enough to
outweigh the considerations noted above: that, in general, a right to free speech protects a
number of very important interests. After all, a politician might be very upset — and, harmed
— when his evil dishonesty is disclosed in the newspapers, but this fact does not mean that
the disclosure should be prohibited. If we were to make all harm-via-speech illegal, then free
and liberal debate would be silenced too!
Mill’s argument is that liberal societies need to err on the side of caution: the default
position is that speech should be allowed unless there is (or there is risk of) very serious
harm. This may permit countless instances of everyday minor harms. As an example of the
risk of serious harm Mill gives the example of “fighting words”. Suppose a person says to
his friend on the bus “McDonald’s are an evil institution. The world would be a better place
if the directors of that company were killed”. Now suppose the person shouts the same thing,
through a megaphone, when a vicious drunken crowd of vegans have gathered outside the
home of one of the directors. In the latter case, such words are likely to have a very different
effect, and may lead to the crowd attacking, perhaps murdering, the director.
Or, consider the UK Racial and Religious Hatred Bill (2005) – this makes it an
offence to say things (or produce images, texts, TV, webpages etc) which “stir up hatred”
against persons on racial or religious grounds. Why single out this kind of speech? One
reason is that the prejudice and hatred that one racial and religious group has for another may
lead to violence, distress, social problems (in the first instance, this is likely to be at the
expense of “minority” groups, but the knock-on effects (e.g., revenge; drift to extremism by
38
way of defending oneself) may be disastrous for everyone). This goes way beyond Poor
Mary’s everyday devastation.
7. Is harm enough? “Nuisance” and “Offence”
Some speech may not impinge upon fundamental rights and interests, but it might still have
detrimental effects upon others. For example, suppose a drunken group are swearing at high
volume outside a toddler’s playgroup. Or, suppose Bob (who is “not well” in the head)
cycles around the streets shouting the c-word into a megaphone, all day, every day. It is
arguable that such acts should not be permitted, not because they will lead to murder (unless
it is Bob’s own) or to a dissolution of society, but because a decent society should protect
people’s interests in leading a life without nuisance or offence. ty(e.g., consider related nonspeech actions like covering the front of one’s house with animal entrails, or walking around
with transparent bags of blood and vomit taped to one’s body). Some (e.g., see the references
to Feinberg’s “offense principle” (US spelling is “offense”) in the van Mill article) argue that
Mill’s harm principle is too weak, and needs to be supplemented: speech that causes offence,
or is a nuisance should be prohibited or subject to legal sanction (fines, imprisonment etc)
(strangely, Mill agrees about nuisances, but it does not seem to follow directly from the way
that he applies the “harm principle” elsewhere).
8. How much freedom of speech do we actually have?
As we have viewed things so far it might seem that, by and large, in a liberal democracy like
our own, we have an extremely wide ranging right to free speech. But is this right? Let’s
consider some more examples of Badmouth Bob
•
•
•
•
•
•
•
•
Bob impersonates a vicar, and “marries” a couple. But his words, and the false
marriage certificate he produces, have no validity.
Bob telephones the police saying that he has planted a nail-bomb in a local school. It
is a hoax.
Bob acts as an alibi for his friend “Scissors” who has brutally stabbed a complete
stranger for “eyeing him up”. He goes to court and lies, committing perjury.
Now bored, Bob posts a load of letters to random people telling them that they have a
£5,321.67 tax rebate due to them. There is a phone number and email address, but
they do not work. Many people are excited, then frustrated, then very disappointed.
One poor soul – who thought that his money troubles were solved – hangs himself.
Bob then goes into business selling “arthritis-rite” tablets to elderly folk. The tablets
are out-of-date laxatives which were meant to be destroyed: Bob creates new labels,
and promotional leaflets for them, engaging in false advertising and fraud.
Bob gets a job as a hospital porter. He reads the medical records of the local
headteacher and finds out that she once had syphilis. He goes on local “chat radio” to
tell all, breaching medical confidentiality.
Sacked from his job, he gets another job working for Coca-Cola in their factory. He
finds out the “secret recipe” and publishes it on the web, in breach of the “trade
secrecy” contract that he signed.
Sacked once again, he goes to work in a publishers. He sees the final chapter of the
final Harry Potter book, goes on talk radio and tells the world what happens to Harry.
When that doesn’t irritate enough people, he photocopies the chapter and publishes it
himself, for profit in breach of copyright law.
39
•
•
•
Disappointed with the results so far, he decides to start a newspaper solely devoted to
publishing harsh lies about minor celebrities, constantly libelling.
In order to raise money for his trial (hurrah!) he has to sell his house. He lies to the
buyers’ solicitor about many aspects of the property
Tired by all this, he gets a job as a teacher and spends the remainder of his years
telling young kids that the earth is flat and was made by Father Xmas a couple of
hundred years ago.
Bob cannot defend himself against charges of perjury, fraud, false witness, slander, libel,
false advertising, breach of contract by appealing to his right to “free speech”.
The debate about freedom of speech tends to focus upon central issues like: should “hate
speech” be permitted? should pornography be permitted? This may give a misleading
impression that in a liberal democracy people have a right to speak (or fail to speak) as
they like.
In fact, there are many different legal constraints upon speech. The examples above show
that speech takes place in many different contexts which, in effect, bind speakers to behave in
certain ways. E.g., witnesses in a court of law are legally required to be truthful. Signing an
employment contract commits the speaker (signatory) to certain things. Advertising goods
requires truthfulness and non-deceptiveness. Certain jobs require confidentiality (which, in
turn, places restrictions upon what one may say – we’ll come back to this next week when we
look at the right to privacy).
9. Speech acts and legal versus moral wrongdoing
One way of thinking about freedom of speech is to focus on the importance of free and open
debate and discussion for liberal democracy. This is Mill’s main focus. But this focuses our
attention on a particular kind of speech: truthful claims (i.e., where someone puts forward
something that they take to be true – they may not be right, but they are being truthful).
Truthful claims are a key part of democratic society. But there are many other contexts for
speech and many other kinds of “speech act” We can do things with words like (what J.L.
Austin called illocutionary acts):
State a claim; ask a question; make a promise; sign a contract; give consent
give an order; make a request; name a ship; condemn to death; etc..
Many roles (doctor; police officer; advertiser; politician; witness in court etc) place certain
special responsibilities on speakers: special obligations of confidentiality, truthfulness,
relevance and so on, that are legally binding. In our everyday life, of course, we ought not to
lie and we ought not to say cruel things, but lying or being cruel to your friends is, typically,
not illegal (but may be in certain contexts). In debates about the rights and wrongs of speech
we need to keep apart legal norms and moral norms.
Many of the legal restrictions on speech (especially on deception, fraud, perjury etc)
correspond to breaches of moral norms, but both the moral and legal norms might themselves
be justified in terms of preventing (or punishing) harm to others in a fairly direct way. 4 Some
4
Mill, who is a consequentialist, views ethical and legal norms as justified in terms of shaping human action so
that they bring about the best consequences (in terms of greatest happiness and least harm). Mill’s way of
viewing things, is, of course, not the only one (e.g., Kantian moral theorists view ethical principles as justified
in terms of whether or not a rational agent can commit herself to the universalisability of the principle)
40
restrictions on speech, by way of contrast, involve a much less direct link to harm (e.g., a
breach of confidentiality may not, in a particular case, harm anyone: but there may still be
good reason (making appeal to potential and general harm) to insist that, say, doctors, priests,
psychiatrists and lawyers keep certain information confidential. Some of the restrictions on
speech emerge out of the legal protection of commercial and economic interests (intellectual
property laws, copyright laws), rather than out of everyday moral norms.
10. Conclusion
In general, then, speech plays many different, but vitally important roles, in the workings
of any society: imagine a society where there were no sanctions against perjury, or against
false advertising, a society where teachers, lawyers, politicians, journalists, broadcasters, and
so on could say whatever they wanted.
Because of this, any liberal democracy is likely to be committed to many legal
restrictions on speech, and not just restrictions on “fighting words” nuisances, offensive
speech, hate speech or pornography. Restrictions on speech are essential to ensure that
basic, fundamental interests are protected.
This goes way beyond the protection of “freedom of expression” in the context of political
and religious debate.
41
Phil 223 Applied Ethics
The Right to Privacy
1. Review
Last week we looked at freedom of speech. In doing so we tried to resolve competing interests: the
interests that are served by free speech (speakers’, audiences’ and others’ interests) and the interests
that are served by putting legal restrictions upon speech. This week our focus is upon the right to
privacy. First we’re going to try to get clear about what the right to privacy is, if anything. We will
then go on to raise questions about how privacy rights ought to be balanced with other rights and
interests.
2. What is privacy?
It is helpful to start by clarifying what a state of privacy is. Privacy is something to do with ‘keeping
something apart’, usually, of keeping something apart or away from the public. A private meeting is
not open to all. A private collection of paintings cannot be viewed by the public (without the owner’s
consent). Private property involves certain rights on the property holder to keep others off her land
(or, in the case of objects, to stop others from taking, touching, using her object). A diary is private
in that the information in it is not available for public viewing.
3. Spatial versus Informational Privacy
Suppose we accept that privacy is something to do with this “apartness” from the public. This doesn’t
tell us much about whether or not there is a right to privacy. One way of viewing rights, as we have
noted already this term, is that rights protect people’s interests. What interests are protected by
keeping things apart from others?
Here we need to distinguish two broad kinds of privacy
•
•
Spatial Privacy (including bodily privacy)
Informational privacy
(1) Spatial and bodily privacy
This is the condition of being apart from, or concealed from, or not in contact with, the public. When
you are in your home, or in your bedroom, or in the toilet, you are in a state of spatial privacy. In
contrast, when you walk down the road, or attend a lecture, or go to the cinema, you are in a “public”
space. Now, obviously matters are complicated here (e.g., if you are at home with your friends, you
are with others, but still “cut off” from the public at large) – what is important here is that individuals
can decide whom to allow within their “zone of privacy”. This “zone of privacy” includes our own
bodies. It is important to us to control over access to this zone of privacy. We might allow a
Jehovah’s witness into our kitchen but not into our bedroom. You might allow a friend into your
bedroom but not into your bed (or to look through your possessions). Sexual partners may permit
forms of bodily contact not permitted to others, whilst, at the same time, holding that certain things
remain private (e.g., the contents of a diary or a handbag).
(2) Informational privacy
But spatial and bodily privacy are not the only kinds of privacy. Suppose Bob spies on Mary with a
powerful telescope when she is in her bedroom. He doesn’t directly invade her space, or enter her
property, or touch her body. But most of us would hold that her privacy has been invaded. Suppose
Mary tells Bob about her crippling disease that she wants to conceal from others (so as not to distress
them), and Bob then puts up a poster telling all. Bob surely breaches her privacy, but not her spatial
42
or bodily privacy. Many theorists of privacy hold that there is a second sense of privacy:
informational privacy. There are many facts about each of us, that we have an interest in keeping
private (unless we decide to tell others). Facts about our fears, medical history, about our sexual
history or interests, facts about political and religious commitment or about voting behaviour.
4.
Privacy Interests
In our discussion of rights, especially the right to free speech, we noted that one way of thinking
about rights is that they protect valuable interests. So what interests do we have in privacy? It
seems that each of us has a wide range of interests in both spatial and informational privacy. For
example:
1. Having a “zone of privacy” spatially apart from others, allows us to develop and sustain
intimate personal relations. [See James Rachels’ article on the readings]
2. The zone of privacy allows us to act, or express ourselves, in ways that might be important or
valuable to us, but not appropriate in public.
3. Controlling information about ourselves allows us to “present” ourselves in a particular way.
4. Controlling information about ourselves stops others from abusing that information (e.g., by
blackmailing us; by insulting or harming us; or, by bombarding us with junk mail).
5. Spatial privacy allows us to exercise our autonomy in deciding how we live, dress, think,
communicate.
In general, in our society (though perhaps not in all) we hold it “normal” to have an interest in
controlling access to objects, spaces, and to facts about ourselves for a variety of reasons. It is these
interests that a putative right to privacy would protect.
5. Is there such a thing as the right to privacy? Thomson’s “reductionist” account
But does it make sense to talk of a distinctive privacy right here? By way of comparison, think about
the right to life. We have already noted that, in its normal guise, the right to life is a negative right,
one that obliges others to refrain from acting in certain ways (killing). The right to life, however, is
fairly easy to define, except, perhaps at the “margins” (i.e., before birth, or in persistent vegetative
states). It is thus clear what the right is, and what the obligations are. It is also fairly clear that the
right to life is a distinctive right. It is not the same as the right to speak, or to eat, or to associate
with whom one wishes.
What about the right to privacy? Judith Jarvis Thomson argues in her “The Right to Privacy”
that it doesn’t make sense to think of there being a distinctive right to privacy over and above other,
better-defined, well-established, rights and obligations.
Think about our examples above. The examples about spatial privacy seem to be covered by
other rights: rights to property, or rights to control what happens to one’s body. The examples about
information privacy are similarly problematic. It is not so much the mere acquisition and possession
of information that is the important thing here, it is, surely, what people do with that information. If
personal information is used to blackmail someone, or to treat them unfairly, then the wrongdoing
stems from the fact that we have rights not to be harmed, or subject to unfair treatment, and so on.
When Bob discloses Mary’s personal information, or when your bank passes on your information to
junk mail companies, they breach a right to confidentiality which is not the same thing as a right to
privacy.
Thomson’s position is usually called “reductionism” about privacy. What this means is
that there is no such thing as a distinctive right to privacy, rather, apparent breaches of a right to
privacy are explicable as breaches of a range of other rights especially:
o
o
o
o
Property rights
Rights over the body
Confidentiality
Rights not to be harmed, or to be subject to threat or nuisance
43
In general, Thomson argues that the various things that seem to fall under the right to privacy exhibit
two features:
1) INCOHERENCE: the various things that fall under a supposed “right to privacy” don’t
actually have something in common.
2) NON-DISTINCTIVENESS: that the various supposed breaches of a “right to privacy” can
all be explained in terms of breaches of other rights.
She concludes:
It begins to suggest itself, then, as a simplifying hypothesis, that the right to privacy is
itself a cluster of rights, and that it is not a distinct cluster of rights but itself
intersects with the cluster of rights which the right over the person consists in and
also with the cluster of rights which owning property consists in. (p. 306)
6. Is Thomson right?
Thomson seems to right that a lot of different things seem to fall under the heading of “privacy” (as
we saw above) and thus, many different things would seem to fall under any (supposed) “right to
privacy”. But is Thomson right to argue that these various things are disconnected and have not much
to do with one another? Surely the thing that they have in common is that they all involve, if you like,
a negative rights against certain kinds of access to certain things, by certain others? The various
privacy interests have something in common. Also, it doesn’t seem clear that they are all adequately
characterized or captured by well-established rights and obligations. Does a person who takes a
photo with a long lens breach some well-established right (other than privacy) if the photo is taken in
a secluded part of a public space? Finally, in terms of the law, suppose Thomson is right that strictly
speaking many things fall under any supposed privacy right. Why does this matter?
One response we might have at this point is that we just need to be more careful (as we were
earlier) in distinguishing different kinds of privacy right: e.g., spatial privacy on the one hand,
informational privacy on the other. Thomson’s second line of objection would still apply, though,
that these supposed privacy rights are reducible to other rights and obligations.
A second response is that Thomson draws upon an implausibly broad notion of private
property rights – that is, she effectively expands the notion of property rights to include privacy rights
within it (so it is no wonder that there is no distinctive right to privacy). This then raises the tough
question about how we are supposed to distinguish different rights. 5 What makes the right to life
different from the right to free speech, and both of them different from property rights?
We have been working with the assumption that rights protect important interests. What
interests does the right to life protect? The interest in living. Last week we looked at the interests that
are protected by a right to free speech, and we saw that there was a distinctive cluster of interests – of
speakers, audiences, of other members of a democratic society, and so on. James Rachels (in the
readings) argues that our privacy interests are not the same as our interests in property, or in
confidentiality. Part of our privacy interests, as we saw above, is our interest in forming and
maintaining intimate and important relationships, and this is not the same as the interests we have in
acquiring or possessing space or objects. Privacy is important to us for a distinctive reason, and, if we
view rights as protecting important interests, then this suggests that there is a distinctive right to
privacy.
7. Privacy in practice
Suppose we accept that there it makes sense to talk of a distinctive privacy right, or better, to talk of
spatial and informational privacy rights. What is the scope of such rights? How do privacy rights
conflict with other rights?
5
Or, to use a common piece of philosophical vocabulary, the question is about how we individuate rights.
44
The first point to note is that privacy rights, as negative rights, are rights against other parties,
but there are different “Other parties” whom a privacy right may be against:
o
o
o
rights against state/government intrusion
rights against corporate/institutional intrusion (including the press + media)
rights against individuals
Article 12 of the 1948 UN Declaration on Human Rights identifies privacy as a key human right:
No one should be subjected to arbitrary interference with his privacy, family, home
or correspondence, nor to attacks on his honour or reputation. Everyone has the right to
the protection of the law against such interferences or attacks.
In the UK there is no specific legal right to privacy. Privacy is protected by a range of different
legal instruments. For example, the acquisition and use of personal information (including medical
information) is governed by the Data Protection Act 1998. This puts legal constraints upon the
acquisition and use of information about identifiable individuals. Other, more general, “privacy”
interests are protected by Article 8 of the Human Rights Act1998
ARTICLE 8
RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.
The Human Rights Act offers some protection against breaches of privacy by public authorities but
says nothing about protection from the press, from private corporations, or from other individuals (the
Data Protection Act, plus the protection of confidentiality, may go some way towards protecting our
privacy interests against the acts of corporations or individuals).
8. Threats to privacy and the limits of the right to privacy 6
We don’t have time here to go into the details of how the legal protection of privacy works, or how it
might be improved. In this final section I want us to turn to the way that privacy rights seem to
conflict with other rights (e.g., see the Etzioni chapter on the reading list).
Examples:
“Megan’s Laws”
In the US most states have laws which require the state to notify concerned parties when a sex
offender is released into their community. The laws are a response to the brutal rape and murder of 7
year old Megan Kanka in 1994. She was killed by a neighbour who had a record a serial child sex
offender. He had been released into the community and was sharing a flat with two other sex
offenders. Megan’s family argued that had they known that serial child rapists were living in the flats
6
See the pressure group Privacy International, for a survey of current “threats” to privacy in the UK
http://www.privacyinternational.org/survey/phr2003/threats.htm
45
next to their home, they could have warned their child (who was enticed into the house with the offer
of “seeing a puppy”), or taken other action to keep her safe.
Megan’s laws obviously conflict with the right to respect for a private life noted above, by disclosing
information about a person’s sexual behaviour and his criminal past. But many people hold that the
overriding of the right to privacy is justified in this case because it protects children (and their
families) from harm and distress, and prevents crime.
We will discuss this in more detail in the workshop tomorrow.
The Surveillance Society 7
The UK is very much a “surveillance society” we have many times more CCTVs than other European
countries (other countries demand a clear threat or danger that must be present – in the UK CCTVs
can be stuck up by local authorities and others without much by way of justification). Emails and
phones and web traffic are routinely monitored, we have one of the largest forensic DNA databases in
the world (pro rata, relative to the population size). This kind of routine surveillance is justified, post
9/11 by the threat posed to the public by terrorism.
To what extent does this present an infringement of privacy? CCTVs tend to be placed in public
spaces. Is it a breach of privacy to be filmed when one is in a public space?
There are two distinctions worth noting here:
(i) The distinction between
(A) The acquisition of knowledge (or information) about someone
(B) The sensory perception of that person (or her actions)
To illustrate the point, it is fair to infer that all of us have been to the toilet in the past 24
hours. The fact that each of us knows this seems to be very different from being watched (or listened
to) on the toilet.
(ii) The distinction between
(C) The acquisition of knowledge (including the acquisition of knowledge via sensory
perception)
(D) The use of the knowledge that one acquires.
Worries about surveillance fall into two categories:
First there are worries about being seen (even when one is not committing any crime)
Second there are worries about how information is used, and, more strongly, how it might be
used in the future. For example, we may not be too bothered if our current government gather
information to counter terrorism, but governments change: what if the BNP or a Neo-Nazi
organisation came to take power? Would you be happy for them to have access to large amounts of
information about what you buy, about what you look at on the web, about your medical history, and
so on?
Privacy and the Press
The press often publishes “intimate” information about people’s lives, often without their consent.
The justification for doing so is that this is in the public’s interest. Whilst this might be true if, say, a
7
See the report by the Surveillance Studies Network November 2006-11-20
www.ico.gov.uk/.../library/data_protection/practical_application/surveillance_society_full_report_2006.pdf
46
politician is taking bribes, or if a “pro family life” politician is sleeping with rent boys, it seems much
less clear as a justification for publishing long-lens photos of “celebrities” on holiday.
The Press Complaints Commission has a code of practice 8
i) Everyone is entitled to respect for his or her private and family life, home, health
and correspondence, including digital communications. Editors will be expected to
justify intrusions into any individual's private life without consent.
ii) It is unacceptable to photograph individuals in private places without their consent.
Note - Private places are public or private property where there is a reasonable
expectation of privacy.
The problem is that the PCC has no legal authority or power: it cannot run trials, levy fines, or
order other sanctions against newspapers. This raises questions about whether privacy is adequately
protected at all, and whether the power of the press and media is too great. But before concluding that
the press ought to be restricted, we need to take into account the arguments viewed last week in
favour of freedom of speech.
9. Conclusion
Whilst the “right to privacy” might seem like a simple and obvious bit of common-sense, a bit of
reflection shows that it has a lot of different aspects, involving the protection of different interests:
e.g., spatial versus informational privacy interests. We looked at Thomson’s “reductionism”, which
argues that there is no distinctive, coherent, right to privacy but, in response, we noted privacy
interests don’t seem to be adequately captured by, or reducible to, property interests. If there is a right
to spatial and informational privacy it is not an inviolable, absolute, right. There are plenty of areas
where intrusions upon, or breaches of, privacy are deemed to be justified.
Tomorrow in the workshop we will discuss some challenges that arise when we try to adequately
determine the limits of the right to privacy.
8
http://www.pcc.org.uk/cop/practice.html
47
PHIL 223 APPLIED ETHICS
WEEK 8
Legal Paternalism
1. Liberty and harm
In the past couple of weeks we have been looking at two broad kinds of right: the right to
privacy, and the right to free speech. Drawing upon Mill’s harm principle we saw how
speech and privacy rights protect fundamental interests but that such rights may be
overridden if a person’s actions are likely to harm others. A liberal state (and its legal
instruments) can be viewed as (at least) two roles: (i) Protecting individual liberty; (ii)
Protecting individuals from harm. Laws against hate speech impinge upon the liberty of
some to protect others from harm. Similarly, ‘Megan’s Laws’ impinge upon the liberty of
some (sex offenders) to protect others from harm. In these examples there is a “balancing”
act, between one person’s liberty and harm to others.
But in some cases an individual may freely decide, or aim, or prefer to do something
which will harm herself. If the state should protect people from harm, then shouldn’t it
protect the person who wants to harm herself? But how does this square with respect for
individual liberty? If someone wants to harm herself, isn’t that a matter for the agent herself,
and no-one else?
Or, consider a related kind of case. One person, S, wants another party T, to do
something that will harm S. But S knows this and consents to it. Should the state intervene
in preventing S and T from acting?
These two kinds of case: harm to self; consensual harm to others; raise questions
about paternalism. For simplicity’s sake, we will focus on the first kind of case.
2. What is paternalism?
Consider a simple example. A child wants to stay up late, eat lots of sweets, and to not do
any school work. The child’s parents do not respect the child’s wishes. This is not because
they hate the child, but, quite the contrary: they have the child’s best interests at heart. They
also have the power to intervene in the child’s life in such a way as to stop her from staying
up late, eating sweets, etc.
In general, then, a person P acts paternalistically to another person S if
1)
2)
3)
4)
S wants to do Φ 9
P judges that doing Φ is not in S’s best interests (e.g., doing Φ may harm S)
P knows that if P does Ψ then S is less likely to succeed in doing Φ 10
P does Ψ, and does it because Ψ is (as P views it) in S’s interests.
So, in our child example this would be
1)
2)
3)
4)
9
Daisy wants to eat sweets.
Dad judges that eating sweets is not in Daisy’s best interests.
Dad infers that if he lies and says that he has no money to spare, she will not succeed.
Dad lies to Daisy.
We might add - and S is capable of doing Φ in context C, for reasons R
e.g., P tells lies to S such that S becomes motivated against doing Φ; or P uses force to stop S from doing Φ
10
48
3. What’s wrong with paternalism?
Suppose we move away from the example of children. What would be wrong with
paternalistic actions towards adults? The main ethical objections are that (a) it treats the adult
without respect for her as free individual with the power to decide what to do; (b) the means
for acting paternalistically are themselves likely to be morally wrong (e.g., it will involve
lying, coercion or force).
4. Is paternalism ever justified?
Is paternalistic action ever justified then? In order to address this it’ll help if we focus upon
what is involved in agency (i.e., when people do things). When an agent does something we
can distinguish a number of different elements:
1)
2)
3)
4)
Preferences/aims/goals/desires
Beliefs
Competences and skills
Context + situation
5. Paternalism and incompetence
As we shall see next week when we look at medical paternalism, there may be occasions
where one agent (or institution) has to act in another person’s interests because the latter
party is unconscious, or mentally ill, or drunk, or drugged, and so on. The unconscious
person is not capable of acting at all, whilst others may be unable to act in a way that serves
their best interests.
For example, suppose Tom is out of his head and thinks that he can fly, and wants to
enjoy flying off the roof a high building. Even though Tom wants to jump off the building it
is clear that, at that moment, he is not competent to really identify what is in his best
interests.
6. Paternalism and ignorance
Similarly, there are cases where someone is ignorant of relevant facts. What we do depends
upon what we believe. Suppose Tom is about to walk over a rickety bridge to get home. Sue
knows that the bridge has recently been hit by lightning. Should Sue just let Tom get on with
it, after all, he is a free agent. No. Sue can intervene non-paternalistically by informing
Tom. Suppose Tom speaks no English, and Sue speaks no other language? Surely Sue would
be justified in trying to stop him in some other way, to save his life? But what if she does
inform him, and he decides to “take his chances”? Surely that is then up to him?
At this point discussions of paternalism usually distinguish different “strengths” of
paternalism. The strong paternalist holds that it is permissible to override people’s wishes
even when they are competent and when they do not have radically defective beliefs (like
Tom). The weak paternalist holds that strong paternalism is not justified but that it is
permissible to override people’s preferences when the person’s preferences are based upon
ignorance or false beliefs. 11
11
Essay hint: different authors use different labels here, so if you are going to make a distinction like this in
your essay, it’s best to say what you mean by it!
49
7. When is harm to self isolated from harm to others?
One general problem that comes up here is that of whether we can truly isolate “self” harm
from harm to others. For example: we may argue that smoking ought to be banned because it
harms smokers, but this is not the only harm, not only is there the harms of passive smoking,
but there are the harms, and costs, that befall those whose lives are affected by the harms to
smokers (e.g., if your parent/partner becomes ill and dies of a smoking-related disease; or,
think of the burden on the NHS). If we can show that a course of action will impose harm
upon others, then Mill’s harm principle comes into play. Prohibiting or preventing such
actions would not be paternalistic.
8. Problems with preferences
Suppose that we focus on cases where an agent has good knowledge, is competent, and
rational. Would it ever be justified to intervene in such a way as to override her liberty
because she has, as it were, the wrong preferences?
a. Mary is 20, she wants to take heroin. She knows that it may harm her, and
that she may become addicted, but she still wants to do it.
b. Tom is 19 and wants to take part in illegal bare-knuckle boxing. He knows
that he risks serious brain damage, but so what! Life’s too short to bother
about that kind of thing.
c. Sandra is 23 and wants to ride her motorbike without a helmet, so that she can
feel the rush of wind through her hair. She knows that there is an increased
risk of serious injury, but doesn’t rank that as too important.
d. Muggsy is 18. He wants to have the words “rotting flesh” permanently
tattooed on his face, one word on each cheek, with the c-word on his forehead
“just to finish it off”.
e. Arif is 21 and is a keen smoker. He knows that it is bad for him, but he can’t
stop.
f. Benji is 19, his girlfriend Sam has dumped him for “being too miserable”. He
decides to kill himself as “life has no point”.
In each of these, of course, there are issues about indirect harm (or costs). Suppose that we
could show that the costs to others are not great. Would there be any scope left for a
paternalistic justification for prohibiting heroin, bare-knuckle fighting, or riding without a
helmet? It would seem so. And the reason is that preferences are complex, variable and
dynamic phenomena.
Think about how the people above might feel when they are fifty, if they make it that
far. Muggsy’s actions at age 18, in effect, impinge upon the liberty of another person:
Muggsy at age 30, 40, 50 etc. We wouldn’t allow Muggsy to tattoo someone else without her
consent, but Muggsy’ future self (when he grows up) is likely to not want these words on his
face. Similarly, in later life, if Arif is racking with pain and spitting blood, he is likely to
regret Arif’s earlier actions. Ditto for Mary, Tom and Sandra. If Benji is successful there
will be no later Benji. But it is likely, if he does live, he will get over Sam and be glad that he
did not kill himself.
The underlying point here is that people’s preferences change over time, and from one
context to another. But our actions at one time may have serious implication for our wellbeing and for our liberty at a later date. One of the striking things about our examples is that
50
they all involve deferred self-harm and a “later self” may not want the harms or limitations
imposed upon her by her earlier actions. If we take a long term view, it may seem that it is
justified to intervene in the cases above, because, in doing so, we are, in effect protecting the
liberty of the agent in the longer term.
9. Short-term and long-term desires and preferences
If we take a long term view of people and their preferences then two things are clear.
(i) People’s preferences change over time
(ii) Against a backdrop of long-term preferences, there can be occasions when shortterm preferences go against the long-term preferences.
We have already seen examples of the first kind. Examples of the second kind include the
kinds of preferences we have when we are in a heightened emotional state, or when we are
drunk. For example, I used to have a “friend” Rik who would, fairly regularly, implore his
friends: “If I try to get off with Tricia when I am drunk later on, please stop me! Do
whatever you must. I really don’t want to do it again, but I know that when I am drunk, I
probably will”. Now, in reality, this never really worked out, because in his drunken state,
Rik was vehement that he never meant what he said earlier, and would violently defend his
right to do what he wanted. But our question is: would we be justified in, say, imprisoning
him, or lying to him (“She’s gone off with Basil, mate, you might as well go home”)?
Or, consider the example of Benji again. Suppose, in his emotionally distraught state,
he decides to castrate himself “I won’t be needing these anymore”. In the long term, such
actions are likely not to fit with his preferences and plans . . . .
It seems justifiable to give people’s long term preferences priority over their early
interests and short-term interests. First, because this fills up more of their life, and second
long term preferences are based upon more experience of the world.
10. Addiction
Addiction raises an interesting challenge here. Many addicts — e.g., to nicotine — have an
interesting conflict in their preferences and desires.
(a) wanting to smoke
(b) wanting to (not want to smoke)
The addict may have second-order desires to the effect that she did not have the first-order
desires (“I know I want fags, but I wish I didn’t want them!”). 12 Now, which desires and
preferences should we give respect to? There is a sense in which the first-order desires (to
smoke) are not a manifestation of freedom or liberty. So they move us away from the kinds
of preferences which we ought to respect (e.g., suppose a mad scientist temporarily alters
Tom’s brain so that he is compelled to eat masses of cabbage. Tom wishes he didn’t have the
desire for cabbage, and resents the actions of the evil scientist. Here we wouldn’t think that it
is was an infringement on his liberty if we made it much harder for the evil scientist to bring
it about that others were addicted to cabbage – we’ll come back to smoking in the workshop
tomorrow).
11. Problems with legal paternalism
12
The idea that higher-order desires are central to free agency is developed in a classic paper by Harry
Frankfurt, ‘Freedom of the Will and the Concept of a Person’ Journal of Philosophy 68 (1971) (JSTOR)
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To sum up: there do seem to be plenty of reasons why paternalistic interventions might be
justified: if people have false beliefs, are ignorant, or are in the grip of immature or shortlived preferences which are likely to run counter to their mature or longer term preferences
(we would, in effect, be ‘protecting people from themselves’). But we have not said much
about the law. Most of our examples have been about individuals intervening in the lives of
other agents. Would the state be justified in using legal instruments to ensure that people act
in ways that impinge upon or restrict their liberty? There are some problems here (see the
Husak reading for more on this).
Problems of differentiation and justice
One general problem is that in the examples above we have deliberately made it clear that
someone has odd preferences, or false beliefs. But how would this be specified in the law.
People can do things for lots of different reasons, and with different degrees of knowledge
and ignorance. E.g.,
a. Tom wants to start smoking because he thinks it will make him sexy.
b. Sue wants to start smoking because her friends do it, but she has no idea that it
will harm her.
c. Julio thinks that “scientific” claims about the harm of smoking are unclear,
and that, besides, “you might be killed by a bus tomorrow”
d. Sandra starts smoking but is convinced that she will stop when “she gets a
proper job”.
e. Mary only smokes a couple, now and again, especially, when she is stressed.
f. Simon smokes, he knows that he is likely to be a burden to society, so he has
taken out a special insurance policy to cover any burden that he will pose.
We could add countless more reasons, situations, and chains of reasoning and emotion that
might lead people to smoke. Some of them are much more “autonomous” than others, but
how is the law to distinguish between cases where a person smokes out of ignorance, from
cases where a person, in effect, makes a clear rational decision to smoke, perhaps a small
amount, or on occasions only. Now, if we had infinite time and infinite resources, perhaps
smoking could be permitted on licence if, but only if, people filled in a long questionnaire
(but even then, how would one ensure honesty?). In the real world, the choices are much
simpler e.g.,
(i) Prohibition of tobacco products
(ii) Taxation of tobacco products
(iii) Education and information
(iv) Banning of advertising
Such responses (especially (i) and (ii)) may seem deeply unfair to those who smoke
occasionally. Eating loads of pies increases the risk of self-harm and costs to society, but
there are not special taxes on pies. It seems unfair to tax those who use something
responsibly, in order to discourage the properly harmful cases.
Or, consider the prohibition of other drugs (cannabis, cocaine, heroin etc). But surely
such restrictions are justified:
(i) drug use causes harm to others
(ii) drug use causes harm to the users
But we have to be careful here. First there is the differentiation problem: most drug users
lead normal lives (just as most people who drink are not winos). Second, there is the problem
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that we have to weigh up the harms and costs of legalised drug use against the harms and
costs of prohibition. There are considerable social costs to prohibition (a) the price of the
drugs goes up, so those with heavy habits have to steal to fund it (thus, harm to others may
increase because of prohibition); (b) users are criminalised (at great cost to them and
society); (c) supplies are contaminated with whatever dealers think they can get away with
(harm to self as a result of prohibition); (d) huge societal resources are spent on the policing
of drugs (costs to others).
12. Legal paternalism and the alternatives
There may be problems with legal paternalism in some contexts, in that is seems to be unfair.
But, in conclusion, it is worth stressing three things:
(i) Many laws are only partly paternalistic (E.g., laws that require the wearing of seatbelts)
(ii) Legal paternalism may be better than the alternative (i.e., not having legal restrictions
at all). E.g.,
• Laws preventing people from working too many hours.
• Laws preventing people from contracting themselves to pay huge interest rates on
loans.
• Laws preventing people from selling their bodily organs.
• Laws preventing suicide (or voluntary euthanasia involving others)
What is interesting about these contexts, especially the first three, is that they come into force
where people’s preferences are likely to be distorted by circumstance. This brings us on to:
(iii) Legal paternalism needs to cohere with other elements of the legal and social
context.
E.g., a person who wants to sell their kidney may do so only because they are desperate. The
paternalistic prohibition of organ sales protects the poor from being exploited, but, if there is
no other social provision to assist or protect those who are likely to be exploited then
paternalistic laws may, once again, seem to be unfair (the poor person may argue “Look, my
choice is: I sell my kidney or my family starve” in this context the paternalistic law may
condemn the poor man’s family to starvation.)
In sum, there seem to be cases where paternalistic laws are justified. Tomorrow we will
discuss some examples. Next week we will look at paternalism in the context of medical
practice and medical research
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PHIL 223 APPLIED ETHICS
WEEK 10
INFORMED CONSENT AND ITS PROBLEMS
1. Review
Last week we looked at medical paternalism. We saw that there seemed to be a special case
for justifying paternalism in medicine, given that medical information is complex and
hard-to-understand, and given that there may be therapeutic benefits to lying and
deception. Given that the doctors’ obligation is to make her patient better and to avoid
harming her, this seems to justify paternalism.
But on closer reflection paternalism seemed to be much less justified. Considerations
of therapeutic benefit are narrow in scope (i.e., they only apply to some cases) and may not be
based on evidence. The argument that medical information is hard to understand is met by
the objection that what patients need is not all the information or expertise that the doctor
has, what she needs is to be informed of the relevant aspects of her diagnosis, prognosis,
treatment or lack of it. We ended up by noting that there have been major changes in society:
especially in terms of deference to authority, and in terms of the structure of medical practice.
Lying and deception is much harder to sustain if treatment is given by different people (some
of whom may not want to deceive). We ended last week with the challenge to find an
alternative. Many people believe that the best alternative to paternalism in medicine is one
that puts informed consent to the fore.
In this lecture the aim is to see what informed consent it, why it is an important part of
medical ethics, and to look at some problems with current informed consent procedures.
2. What is consent?
Let’s begin with a simple starting point. Informed consent seems to be a species of consent.
But what is consent? Consent is a ubiquitous part of everyday life. Consider three examples:
1a) Mary takes some apples from Tom’s garden. Tom did not want Mary to take these
apples. But Mary did not ask whether he could take the apples, she simply took them.
2a) Sue jumps out at Tom and cuts his thumb with a knife. Tom did not want Sue to do
this. But Sue did not ask whether she could cut Tom’s thumb, she simply cut him.
3a) Bill forces Tom, at gunpoint, to take part in a medical experiment where he is kept in
a room and denied food for 24 hours.
All of these involve one party wronging another. More specifically, they all involve a breach
of the rights of the “victim” in each case. Tom has property rights over his apples: Mary
breaches this right by stealing. Tom has rights over his body, rights against assault and
battery. Tom has “liberty” rights, which Bill breaches by coercing him and falsely
imprisoning him. Let us now consider a second set of examples.
1b) Tom asks Sue whether he may take some apples from her garden. She says that he
may. He takes the apples.
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2b) Tom asks Sue whether she would cut his thumb to remove a splinter. She agrees.
She cuts his thumb.
3b) Bill tells Tom about a medical experiment where he will be kept in a room and not eat
for 24 hours. Tom tells Bill that he would very much like to participate.
Consent acts as a waiver of rights. Where the first examples involve theft, battery, coercion
and so on, the second examples do not. The key difference between the first and second set
of examples is that in the second set the affected party—the one whose rights would be
breached—does something that effects a waiver of those rights. By saying that Tom may
take the apples Sue waives her right against theft (by Tom, of the apples). By asking Sue to
remove the splinter Tom indicates that he waives his right against battery (at least with
respect to the specific action of cutting the thumb). Consent is akin to related notions like
agreement, permission, authorization.
3. Consent and knowledge: all consent is informed to some extent
Consent has long been part of good medical practice. As we noted last week, doctors don’t
go around dragging people off the street, or forcing them at gunpoint to be cured. For a great
deal of everyday medical practice it is the patient who seeks the doctor’s help. Now, the fact
that the patient seeks the doctor’s help does not, by itself, mean that she consents to whatever
the doctor does (make up your own examples). So what is involved in giving consent to
something?
The key point for our purposes is that all consent requires the various parties –
those giving, those “receiving” consent — to know certain things. You simply cannot
consent to something without knowing something about it. When Sue puts up a sign saying
‘Apples: help yourself’ she knows something about the kind of action that she is consenting
to, even if she does not know who it is that might take the apples, or when, or in what
manner. In general, consenting to some action requires you to know something about what
that action is.
The “Mystery Tour” objection. It might be objected here that you can consent to something
without knowing anything about it. For example, you can agree to go on a “mystery tour”
without knowing where the tour would take you. But even here you will have knowledge and
expectations about the kinds of place that such a tour will go to (e.g., the seaside, a historic
house, some distance away: you would be understandably miffed if the tour bus drove round
the corner to the local animal carcass rendering factory.
4. Consent has always been part of good medical practice
Consent has long been an essential part of ethically sound medical practice. The reason why
is that medical practice involves many actions that if they were performed without consent
would be impermissible: acts of cutting; invading the body; causing pain; administering
material into the body; restricting movement; removing limbs and organs, and so on.
These first-order rights can be waived if the patient or research subject knows
something about them, and consents to their being done. In many cases this is routine and
simple: if the doctor asks to take some blood and you roll up your sleeve and offer your arm,
you give your consent in a certain way, for certain purposes (you don’t consent to her taking
all of your blood, or to her drinking your blood, or doing a fancy piece of conceptual art with
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it). Or, if a doctor is to gain her patient’s consent for, say, a surgical intervention, she has to
tell him something, perhaps in loose vague terms, about what she proposes to do (‘I’m going
to have to cut out the growth, I’m afraid’).
5. Informed consent in medical ethics
Although all consent is informed to some extent, the phrase ‘informed consent’ has come to
have a distinctive, specific meaning in medical ethics.
Informed consent is consent that is voluntarily given (or refused) in response to a prior,
explicit, disclosure, detailing the nature, risks, costs, benefits and side-effects of a proposed
course of action (perhaps with a specification of the risks, costs, benefits and side-effects of
alternative courses of action, or of taking no action at all).
The consenting party (the patient) may have to give her signature acknowledging that she has
understood the consent “disclosure” and that she gives her informed consent. But why
should medical practice require this distinctive kind of communication? Informed consent of
this kind is a ubiquitous part of contemporary medical practice (as you will know if you’ve
ever had surgery). Why do we view informed consent as ethically important, when simple
consent seems to do the job? Informed consent involves a disclosure of information about a
proposed intervention. Information about the reasons for performing it, information about
risks, side effects, information about the risks and costs of refusing this intervention,
information about the nature, availability and risk of various alternative treatments.
What this question amounts to is: why do we need specific disclosures about an
intervention (its nature, risk, alternatives etc)?
6. ARGUMENTS FOR INFORMED CONSENT
(A) Beneficence-based arguments. 13
Medical practitioners are governed by the duty of beneficence. Suppose that it helps the
patient get well, or helps her recover more quickly, if the practitioner tells the patient about
the intervention. Why might this be?
(i) Disclosure makes the patient more likely to give (simple) consent – that is, if you
tell the patient, they trust you, so they are more likely to receive the treatment which will do
them good.
(ii) Disclosure makes the patient feel better, recover more quickly, feel that they have
been treated properly and thus get well more quickly.
In these arguments disclosure ought to be made because of its positive effects upon the
patient. Should there be no positive effects (in a particular case) then disclosure is not
morally required. If lying or deception achieves better results for the patient’s well-being, or
if lying is the only way to get the patient to comply, then lying would seem to be allowed on
this kind of argument which is, at root, paternalistic.
(B) General utilitarian argument 14
13
See Ruth R. Faden and Tom L. Beauchamp, A History and Theory of Informed Consent (New York: Oxford
University Press, 1986) pp. 56-60
14
Utilitarians argue that we ought to do those things that bring about the greatest good, or greatest happiness.
56
(I.e., the right thing to do is to maximise well-being) One version of this is just a variant on
(A): that is, it is the patient’s well-being which is served by telling her something about the
intervention.
But we can run a utilitarian argument which does not rely on the duty of beneficence.
Such an argument would lay stress on benefits to people other than the patient. This would
not be a pure case of beneficence (e.g., the utilitarian might argue for disclosure even if it was
not in the patient’s interests). How might disclosure further well-being in a general way? It
might be argued that it increases trust in general between patients and practitioners, and this
increase in trust is, in turn, beneficial for everyone’s health (e.g., if the person with an
infectious disease, or a condition which stops them from making an optimal contribution to
society, is unwilling to visit a medical practitioner, then there are general social costs).
Neither of these arguments directly point us towards what should be disclosed. There is
no moral directive on the content of disclosure save: disclose that which brings about the best
effects (upon the patient, or more generally).
(C) The legal argument - informed consent as a ‘flak jacket’
There is long, sporadic history of litigation against medical practitioners for battery or
negligence. At the core of this type of litigation, is the claim by subjects that they would not
have consented to the treatment or intervention had the practitioner disclosed certain facts
about the proposed intervention. In order to protect themselves against potential litigation
medical bodies (and medical research bodies) establish a practice of gaining informed
consent. Subjects must be given information about the nature of the intervention, the likely
effects, alternative courses of action and their attendant risks, the risks and costs of failing to
intervene and so on.
The legal argument, unlike the ethical arguments viewed so far, puts much more
pressure on obtaining explicit consent, particularly some explicit record (e.g., a signed
‘consent form’) which indicates that the patient has received and understood the disclosure
and that they willingly consent to the proposed course of action in full knowledge of its
nature and implications.
(D) Transference from research to therapeutic medicine (+ research abuses)
In a traditional medical encounter, the patient seeks to get well and employs the practitioner
as a means towards that end. But in the context of research, matters are reversed. The
subject is a means towards the researcher achieving some goal of hers. The research subject
serves the researchers’ ends. This puts a demand upon the researcher to convey something
of the goals and nature of the intervention which is proposed in pursuit of her research-goal.
Many people have been abused in the name of medical research. A good example is
the U.S. Government’s “Tuskegee study of untreated syphilis in the negro male” which ran
from 1932 until 1972. The aim of this study was to observe the development of untreated
syphilis. Research subjects were recruited by being told they were taking part in a study of
‘bad blood’. They were offered meals and other incentives. But they were denied
information about their condition, and not offered any treatment. The key point here is that
the research subjects were not informed as to the real nature of the research. Had they known
that they were taking part in a study of the debilitating and painful effects of untreated
syphilis, it is doubtful that they would have agreed to take part.
After World War two it was discovered that Nazi doctors who performed systematic
and brutal experiments upon unwilling human subjects in concentration camps. The trial of
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these doctors at Nuremberg led to the establishment of the Nuremberg Code in 1949 as a
directive governing medical research. At the heart of this code is the idea of voluntary
consent and that this requires the subject to be informed of
the nature, duration, and purpose of the experiment; the method and means by
which it is to be conducted; all inconveniences and hazards reasonably to be
expected; and the effects upon his health or person which may possibly come
from his participation in the experiment.
(E) The rejection of paternalism, and ‘respect for autonomy’
In contemporary biomedical ethics there is one kind of justificatory ethical argument that has
gained prominence (such that it might seem to be the only possible argument for informed
consent). The argument is simple enough: medical paternalism is wrong, not just because it
involves unethical means (as we saw last week) but because the withholding of relevant
information from patients treats the patients without respect. In paternalistic medicine the
doctor makes a decision in light of what she takes to be the patient’s best interests. But the
patient herself doesn’t have a say in it. But in order for a patient to properly participate in the
decision whether or not to proceed with some medical intervention, she needs to be given
information, in a form that she can readily understand, about the nature of the intervention in
question.
This argument is not the same as the beneficence argument. The argument here
is that individuals have a right to receive information about proposed interventions
regardless of the effects that such information may have for their well-being, or for their
chances of agreeing to the intervention.
The key idea is that sane adults should be allowed to make responsible rational decisions
about what happens to them. In order to do this they require information.
So, there are a number of reasons why current medical practice involves informed consent
and the disclosure of information. But we saw last week that medical knowledge is often
technical and hard to understand (indeed, this was used as one of the arguments for the
paternalistic withholding of information). How can informed consent work? How can
difficult medical knowledge be “disclosed” to patients, and how on earth are they supposed to
base their decisions on this information? There are, then, numerous problems with informed
consent.
7. Some problems with informed consent
It will help us keep track of different problems if we take note of the “structure” of informed
consent (as it is standardly conceived) 15
THE KEY FEATURES OF INFORMED CONSENT PRACTICE
INPUT [disclosure] → RATIONAL SUBJECT → OUTPUT [act of consent/refusal]
(A) ‘INPUT’ PROBLEMS/PROBLEMS WITH DISCLOSURE
15
See Neil C. Manson and Onora O’Neill Rethinking Informed Consent (Cambridge: Cambridge University
Press, 2007) for a sustained criticism of this “standard” model of the informed consent process.
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(i) Exactly what information should be given?
(ii) How much information should be given?
(iii) How should it be conveyed, in what terms, via what medium? etc
SOLUTION 1 – BE EXHAUSTIVE - GIVE LOTS OF INFORMATION
(a) One still has to draw the line somewhere.
(b) If one lists all the risks, however small, subjects may be put off treatment.
(c) Giving information about risk is problematic (e.g., 1% die vs. 99% live)
(d) If too much information is given the subject may well ignore some of the information –
the consent fails to meet the standard set by the autonomy argument.
(e) The subject quickly reads the masses of information but feels coerced,
(f) Some subjects may become impatient or confused and decide not to proceed with some
intervention that would have been good for them. They may then bring a lawsuit claiming
that they have suffered thanks to the overly wordy nature of the disclosure.
SOLUTION 2 – KEEP IT SHORT - GIVE LESS INFORMATION
(a) How can one properly describe a complex medical intervention without going into
details?
(b) If one gives too little information, then the subject may not actually understand what the
intervention is, or what its risks are, or what the alternatives are.
(c) The risk of litigation. The subject claims that had they been given more information they
would not have consented to the intervention.
FURTHER PROBLEMS ON THE ‘INPUT’ SIDE
(a) There are issues about who should seek or accept consent.
(b) There are issues about how the disclosure should be presented – should someone speak to
the patient, should a video presentation be given, should the disclosure be given over several
days with time to think?
(c) There are issues about when a disclosure should be given. Studies have shown that if
consent is sought a few days before an operation, by the time of the operation people have
largely forgotten most of the relevant content of the disclosure!
Note that there are also practical and financial problems here – if one is spending a lot
of time and money trying to get the consent form right, the resources and money cannot
be used on healthcare or research!
B. STUCK IN THE MIDDLE – THE CONSENT SUBJECT
(a) Unconscious or sleeping subjects – OK – already covered by medical codes of practice
(b) But what about drowsy, tired, subjects? What about subjects who are in pain who are not
really in a position to think critically?
(c) What about those who are stupid? Or those who are poor at reasoning?
(d) What about those who have crazy false beliefs?
(e) People can give voluntary consent for reasons which are nothing to do with the disclosure.
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C. PROBLEMS ON THE ‘OUTPUT’ SIDE
(a) What counts as giving consent? Saying OK? Not refusing? Legal demand for a record
of consent.
(b) What does a person consent to when they give consent. E.g., the ‘lysergic acid
diethylamide’ vs. LSD example; the ‘tissue’ = ‘organs’ example. The failure of consent stems
from the fact that when we consent to something our consent is directed towards an action
described or conceived of in a certain way. The subject’s consent may not be directed
towards that action when it is described in some other way. (see O’Neill 2002, pp. 42-44)
D. REPLACING PATERNALISM WITH COERCION?
Lots of patients don’t want to receive lots of information, or to take part in medical decision
making. They want and expect their doctor to decide for them. But contemporary informed
consent procedures actually demand that the patient “go through the motions” of reading the
informed consent disclosure, and she must sign the informed consent form. If she does not,
she will not be treated. So, we seem to have replaced paternalism with a coercive demand.
The worry about paternalism, you will recall, is that the patient is not given a chance
to make her own decision about what it is in her best interests, but patients have interests with
regard to the amount of information they receive. Current informed consent procedures do
not respect these interests. This is either
(a) Because it is in the patient’s best interests (as viewed by the medical community)
– but this is a form of paternalism: informational paternalism. Or,
(b) It is because it is in the doctor’s interests (i.e., in providing protection from legal
suits). This may be ethically justifiable, but it is clearly not simply a matter of “respect for
autonomy”.
8. Conclusion
Consent is a way of waiving certain rights. Consent always involves knowledge and
expectations. Consent is always “informed” to some extent. Consent has always been part of
ethically sound medical practice. But in contemporary medical practice “informed consent”
means something much more specific. We have seen in this lecture how informed consent
procedures have come to be part of medical practice. In the final section we looked at
various problems that arise when we view informed consent as something that is ethically
required in order to achieve respect for patient autonomy. In the workshop tomorrow we will
go through some of these problems in more detail.
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