I am grateful for the opportunity to respond to Alison Bateman-House’s thoughtful and insightful response essay. Bateman-House argues that while autonomy is perhaps the most important principle of medical ethics, it is not the only important principle we ought to consider. Other values, such as beneficence or justice, can outweigh the value of autonomy in some cases, and in light of these other values public officials can justify some limits on rights of self-medication. In this response essay, I agree with Bateman-House’s argument that it can be important to consider other values, but I disagree that those values outweigh autonomy. In other words, autonomy sets limits on the extent that public officials can permissibly promote other values.
Bateman-House discusses four kinds of choices where other values weigh against the importance of autonomy. These include patient choices in clinical and research contexts, citizens’ choices in community and public health contexts, physicians’ choices, and manufacturers’ choices throughout the development and marketing process. In all four domains, Bateman-House suggests that public officials may permissibly limit people’s choices either paternalistically or to prevent them from violating the rights of others. I agree that officials may permissibly limit people’s choices to prevent them from violating other people’s rights, but I disagree about paternalism. On my view, it is not permissible for public officials to paternalistically coerce competent people in any of these contexts.
Consider first Bateman-House’s discussion of patient choices in clinical contexts. She argues that in these circumstances, justice and beneficence matter too. But even though this is true, the principle of autonomy still limits the extent that physicians can permissibly promote justice or beneficence. For example, physicians and public officials may not compel people to donate their bone marrow to sick relatives, even if doing so would save their relatives’ lives. And even the most consequentialist health system would not allow researchers to forcibly draw blood from a person who was immune to a contagious disease in order to develop a cure. Nor do any places currently enforce a kidney tax for the benefit of people in need of transplants. This is true even if the violation of bodily rights would be very minor compared to the number of lives these policies would save.
This view is not necessarily committed to the claim that people are never liable to be interfered with for beneficent ends. It is committed to the claim that when decisions involve people’s bodies, patients do not forfeit their bodily autonomy simply because another person could benefit. This is the underlying moral principle that justifies other rights that are central to a liberal approach to medicine, such as the right to choose abortion or to refuse to donate one’s organs to a patient in need, even if it could save several lives.
Bateman-House worries that respect for patient autonomy outside of clinical and research contexts would be especially dangerous though, citing concerns about drug interactions and accidental poisonings. This is an empirical conjecture, but even if it were true, it would not justify prohibition as a first line of response to the problem of patient ignorance. Even when it is difficult for a person to understand the nature of a choice, such as dietary or financial decisions, it is better if officials equip people with the information they need to understand their choices rather than making choices for them. There are four reasons for this. First, people may be ignorant about particular aspects of complicated medical, dietary, or financial decisions but they are experts about their own values and capacities. And while officials can communicate general information about medicine, diet, and finances to people in ways that inform their decisions, it is less feasible for each person to communicate particular information about her values to officials in ways that enable officials to promote people’s interests.
Second, the fact that people are deprived of the authority to make decisions may in part explain why they seem to lack the capacity to do so. Without any incentive to educate themselves about medicine and their medical options, patients may rationally respond by remaining ignorant of the relevant facts because they are unlikely to have the opportunity to act in light of them anyhow. Third, if patients are not capable of understanding complex information, there is nothing about rights of self-medication that prevents them from consulting with experts, such as pharmacists or physicians, and deferring to their advice as they currently do. Fourth, public officials who are concerned that patients may accidentally poison themselves should reconsider existing policies that prevent patients from accessing and monitoring their medical records and managing their own health choices. And it’s not clear that pharmacists screen for drug interactions better than patients would if they were given the same resources for detecting potentially dangerous interactions.
Bateman-House also argues that public health officials may permissibly limit citizens’ choices in public health contexts in order to promote the community’s health on balance. Bateman-House provides three examples of permissible public health interventions: quarantine, water fluoridation, and trans fat bans. She also argues more generally that all population health requires officials to weigh risks and benefits for an entire population.
I agree with Bateman-House that it can be permissible to quarantine patients when it is necessary to prevent contagious transmission and when it is the least restrictive alternative. This is because contagious transmission of an illness violates other people’s bodily rights. It is for this reason that I also think public officials may permissibly limit access to antibiotics when it is necessary to prevent the contagious transmission of antibiotic-resistant bacteria or require vaccination in some cases. Water fluoridation is also not objectionably paternalistic. To the extent that water is a public service, people are not entitled to determine the nature of public benefits that do not violate people’s rights. Even though some libertarians object to taxation, which finances the public provision of water, it would not be a further injustice that the water has fluoride in it.
On the other hand, trans fat bans do violate people’s rights, (depending on how they are enforced). When public officials make it illegal to manufacture or sell foods with trans fats, they coercively prevent people from buying and selling certain foods not because it is harmful to others but in order to benefit those who are being coerced. In some ways public health paternalism is even worse than paternalism in clinical contexts because the officials who act paternalistically coerce a large and heterogeneous group of people they’ve never met, and are therefore even more likely to fail to promote people’s overall wellbeing. Officials are also influenced by electoral and fiscal incentives that may prevent them from acting in people’s interests.
It is for this reason that, as I have argued elsewhere, paternalistic public health policies such as seatbelt mandates and the prohibition of recreational drugs (including methamphetamine) are misguided. In contrast to speed limits or laws that prohibit pollution, which prevent people from violating each other’s rights by prohibiting activities that carry a high risk of harm, public health paternalism prevents people from making choices that are within their rights but might cause them to harm themselves. These paternalistic polices are disrespectful not only because they violate people’s rights and are likely to fail to promote people’s wellbeing, but because they fail to treat citizens as equals and instead express the offensively condescending view that public officials are in a better position to decide for citizens than the citizens themselves.
Bateman-house also considers the value of physicians’ autonomy. She notes that physicians are not morally required to facilitate all of their patients’ medical choices. For example, physicians are not morally required to break the law for a patient who requests voluntary euthanasia. I agree with this claim, but I also think that physicians are not morally required to comply with unjust laws, including the law that prevents patients from using deadly medicines. But whatever one thinks about physician’s legal responsibilities, rights of self-medication would reduce the number of circumstances in which physicians faced these dilemmas by shifting decisional authority to patients.
Rights of self-medication would also go some way in addressing physicians’ scarce time, a concern that Bateman-House raises regarding the availability of expert advice, because without a system of prescription requirements patients would not be legally forced to consult with physicians in order to access drugs. So physicians could focus on treating patients who were genuinely interested in their physician’s care and advice if all patients had rights of self-medication.
On the topic of physician autonomy, Bateman-House also addresses physicians’ right to refuse to provide care to patients when it violates their conscience. I also think physicians have this right, and that it illustrates the importance of autonomy more generally. Why should doctors have the freedom to refuse to participate in a treatment choice that is inconsistent with their values but patients do not have the freedom to choose the treatments that most reflect their values?
Let’s turn to Bateman-House’s discussion of pharmaceutical development and marketing. She claims that manufactures support the current system and appreciate its predictability and reliability. But a system of self-medication could also be predictable and reliable for manufacturers. Manufacturers may favor the current system because removing existing barriers to entry in the pharmaceutical marketplace could make the industry more competitive, but manufacturers are not entitled to be protected from competition by the current system. Bateman-House also notes that there are other ways, short of deregulation, to include patients’ perspectives in drug development, citing the Maestro Rechargeable System weight loss treatment trial. Efforts at including patients’ voices are commendable. But the reasons that a principle like “nothing about us without us” is morally praiseworthy also tells in favor of rights of self-medication. After all, self-medication would enable even more deference to patients’ perspectives and could reflect people’s judgments about risk and benefit even better than merely including patients’ voices in the current system would.
To close, Bateman-House raises a question about pharmaceutical marketing, noting that only the United States and New Zealand allow direct to consumer marketing of prescription drugs. Polices that prohibit direct to consumer pharmaceutical marketing are not only paternalistic, they are a form of censorship. Freedom of speech is justified not only because speakers have an interest and a right to express their views, but because listeners have interests and rights to hear them. Censorship prevents people from accessing information but censors are not well placed to know in advance which information is harmful or useful to people. To the extent that using a prescribed drug is currently lawful conduct, laws that prohibit marketing for prescription drugs amount to content-based restrictions on speech that advocates for lawful conduct. It is for this reason that officials should not only allow for direct to consumer pharmaceutical advertising, but off-label marketing as well.
Bateman-House is right to point out that autonomy is not the only value that matters, but it is the value that matters the most. And one feature of emphasizing respect for autonomy over all other values is that doing so enables people to pursue whatever other values they think are important as long as they respect each other’s entitlement to do the same. But even if one doesn’t value autonomy as highly as I do, as I argued in this and the previous essay, there are also consequentialist reasons to support rights of self-medication. Like other paternalistic policies that aim to balance autonomy against beneficence and wellbeing, paternalistic pharmaceutical policies are potentially dangerous and likely to fail. It is far less morally risky for officials to respect citizens’ authority to make decisions about their own bodies that reflect their own values.