Monstrous Impersonation: A Critique of Consent-Based Justifications for Hard Paternalism

Restricting a person\u27s substantially voluntary, self-regarding conduct primarily for the sake of that person is hard paternalism. Particularly in the public health context, scholars, legislators, and judges are devoting increasing attention to discussing the conditions and circumstances under which hard paternalism is justified. One popular type of argument for the justifiability of hard paternalism takes its normative warrant from the consent of the restricted person. In this Article, I argue that scholars and policymakers should abandon consent-based arguments for the justifiability of hard paternalism. Such arguments are torn between incoherence and lacking moral force. Very few consent-based arguments successfully resolve this tension. But even these arguments appeal, at bottom, to a notion of beneficence for their justificatory force. Policymakers should not make strained efforts to demonstrate that the subject of hard paternalism has consented to the limitation of liberty. They should, instead, calibrate the moral scales to ascertain the circumstances under which restricting liberty achieves benefits of sufficient weight to justify overriding individual liberty. A balancing framework reveals the tradeoffs at issue. And using such a framework will lead to clearer, more consistent, and more legitimate public policy

Voluntarily Stopping Eating and Drinking: A Legal Treatment Option at the End of Life

Despite the growing sophistication of palliative medicine, many individuals continue to suffer at the end of life. It is well settled that patients, suffering or not, have the right to refuse life-sustaining medical treatment (such as dialysis or a ventilator) through contemporaneous instructions, through an advance directive, or through a substitute decision maker. But many ill patients, including a large and growing population with advanced dementia who are not dependent upon life-sustaining medical treatment, do not have this option. They have the same rights, but there is simply no life-sustaining medical treatment to refuse. Nevertheless, these patients have another right, another option to avoid suffering at the end of life. Patients with decision-making capacity may choose (through contemporaneous instructions) to voluntarily stop oral eating and drinking to accelerate the dying process. Moreover, patients without capacity often have the same option. Voluntarily stopping eating and drinking (VSED) is a clinically validated “exit option” that enables a good quality death. Significant and growing evidence supports VSED as a means of accelerating the dying process. Nevertheless, VSED is widely resisted by healthcare practitioners either because they think that it is illegal or because they are uncertain of its legality. There has been little legal analysis of a right to VSED. In this Article, we aim to fill this gap and to clarify the legal status of VSED. Specifically, we argue that both contemporaneous and (most) non-contemporaneous decisions for VSED are legally permissible. Individuals may refuse nutrition and hydration just as they may refuse other intrusions on their personal autonomy. This right is grounded in the common law of battery, statutes, state constitutions, and even the U.S. Constitution. Moreover, VSED does not, as many believe, constitute abuse, neglect, or assisted suicide. Even ex ante decisions for VSED (exercised through an advance directive or a surrogate decision maker) are legal in most United States jurisdictions

Counting the Dragon\u27s Teeth and Claws: the Definition of Hard Paternalism

n his classic 1897 essay, The Path of the Law, Oliver Wendell Holmes Jr. warned against blind imitation of the past and called for enlightened skepticism toward the law. He described the first step of this critical examination as getting the dragon out of his cave and on to the plain and in the daylight so that you can count his teeth and claws and see just what is his strength. Over the past thirty years, disagreements over the appropriate definition of paternalism have often masked further disputes over the circumstances under which the restriction of substantially autonomous self-regarding conduct is permissible. Holmes\u27 dragon, hard paternalism in this case, has remained hidden in its cave. In this article, I pull the dragon out of its cave so that we can get a good look at him. I address the conceptual problems surrounding paternalism by rigorously defending a definition of hard paternalism containing logically individually necessary and jointly sufficient conditions. Moreover, the benefits of a clear and comprehensive definition are not only conceptual. Defining hard paternalism with an adequate degree of precision will enable more useful normative dialogue about the conditions under which hard paternalistic restrictions are justifiable

The Growing Power of Healthcare Ethics Committees Heightens Due Process Concerns

Complex ethical situations, such as end-of-life medical treatment disputes, occur on a regular basis in healthcare settings. Healthcare ethics committees (HECs) have been a leading dispute resolution forum for many of these conflicts. But while the function of HECs has evolved from mediation to adjudication, the form of HECs has not evolved to adapt to this expanded and more consequential function. HECs are typically multidisciplinary groups comprised of representatives from different departments of the healthcare facility: medicine, nursing, law, pastoral care, and social work, for example. HECs were established to support and advise patients, families, and caregivers as they work together to find solutions for delicate circumstances. HECs generally have been considered to play a mere advisory, facilitative role. But, increasingly, HECs have been playing a decision making role. Both in law and in practice, state governments and healthcare facilities have been giving HECs more authority to adjudicate conflicts and more responsibility for making treatment decisions. For example, HECs sometimes make decisions on behalf of incapacitated patients with no friends or family. Other times, HECs adjudicate medical treatment disputes between providers and the patient or patient’s family. Unfortunately, HECs are not up to this task. They are not ready to evolve from being mere advisers to being deciders. HECs are overwhelmingly intramural bodies. That is, they are comprised of professionals employed directly or indirectly by the very same institution whose decision the HEC adjudicates. But a lack of neutrality and independence is not the only problem. HECs typically also lack sufficient diversity, composition, training, and resources. Consequently, HECs make decisions that suffer from risks of corruption, bias, carelessness, and arbitrariness. In prior published work, I have argued that the adjudicatory authority of HECs be relocated to a multi-institutional HEC. Thereby, no single institution’s HEC would have a controlling voice in the adjudication of its own dispute. A multi-institutional HEC preserves the expertise and extrajudicial nature of HECs. But in contrast to an intramural HEC, a multi-institutional HEC possesses better resources, a greater diversity of perspectives, and the neutrality and independence required by due process. In this Article, my primary objective is not to further articulate this or any other solution. Instead, the objective of this Article is to further articulate the problem. As the power of HECs grows, concern over HEC fairness grows. There is a direct and positive correlation between the power of HECs and the importance of developing a fairer dispute resolution mechanism that better accords with procedural due process. In short, because we are giving HECs more authority, we must demand more accountability

The Maladaptation of Miranda to Advance Directives: A Critique of the Implementation of the Patient Self-Determination Act

In this Article, Thaddeus Pope argues that the Patient Self Determination Act (PSDA) is a failure on its own terms. The Article first identifiesthe central purpose of the Act as the protection of patient autonomy. The Article then reviews much of the empirical research on the implementation of the Act. This research suggests that the medical preferences expressed in advance directives completed pursuant to the PSDA are usually not based on real understanding because patients are merely Mirandized of their right to direct their post-autonomous medical care. Although some scholars contend that this is the most that can be expected of the PSDA, Mr. Pope argues that patient autonomy is not an impossible goal. The Article concludes that patient autonomy can still be protected if advance directives are completed with adequate informed consent

Is Public Health Paternalism Really Never Justified? A Response to Joel Feinberg

n the preeminent scholarly legal treatise on paternalism, The Moral Limits of the Criminal Law: Harm to Self, Joel Feinberg argues that hard paternalism is never justified because it is superfluous; all reasonable restriction of self-regarding conduct can be justified on (more palatable) soft paternalistic grounds. In this article, I argue that Feinberg\u27s strategy seems to work only because he stretches soft paternalism to justify liberty limitation that is properly described as hard paternalism. I expose Feinberg\u27s strained appeals, and argue for honesty and transparency regarding the bases for paternalistic liberty limitation. If the rationale for public health restrictions on liberty is hard paternalism, then that normative appeal should not be masked. Rather it should be made explicit so that it can be subjected to constructive criticism and debate

Multi-Institutional Healthcare Ethics Committees: The Procedurally Fair Internal Dispute Resolution Mechanism

2.6 million Americans die each year. A majority of these deaths occur in a healthcare institution as the result of a deliberate decision to stop life sustaining medical treatment. Unfortunately, these end-of-life decisions are marked with significant conflict between patients\u27 family members and healthcare providers. Healthcare ethics committees (HECs) have been the dispute resolution forum for many of these conflicts. HECs generally have been considered to play a mere advisory, facilitative role. But, in fact, HECs often serve a decision making role. Both in law and practice HECs increasingly have been given significant authority and responsibility to make treatment decisions. Sometimes, HECs make decisions on behalf of incapacitated patients with no friends or family. Other times, HECs adjudicate disputes between providers and the patient or patient\u27s family. Unfortunately, HECs are not up to the task. They lack the necessary independence, diversity, composition, training, or resources. HECs are overwhelmingly intramural bodies, comprised of professionals employed directly or indirectly by the very same institution whose dispute the HEC adjudicates. HECs make decisions that are corrupted, biased, careless, and arbitrary. To address the problems of intramural HECs, I propose that their adjudicatory authority be relocated to a multi-institutional HEC (MI-HEC). Thereby, no HEC could have a controlling voice in the adjudication of its own dispute. A multi-institutional HEC preserves the best but avoids the worst of intramural HECs. Specifically, the MI-HEC preserves the expertise and extrajudicial nature of the HEC. But in contrast to an intramural HEC, a multi-institutional HEC possesses better resources, a greater diversity of perspectives, and the neutrality and independence required by due process