Kolber, Adam J.

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Brooklyn Law School: BrooklynWorks

Brooklyn Law School BrooklynWorks Faculty Scholarship 12-2009 How Placebo Deception Can Infringe Autonomy Adam J. Kolber Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty  Part of the Science and Technology Law Commons Placebos in Clinical Practicedangerously misleads patients, is not substantiated as ef- Foddy, B. 2009. A duty to deceive: Placebos in clinical practice.fective, and cannot be ethically supported as a treatment. 0 American Journal of Bioethics 9(12): 4-12.REFERENCESAmerican Medical Association (AMA). 2009. Opinion 8.083. In Codeof Medical Ethics, June 2007. Chicago, IL: AMA.Miller, F., and L. Colloca. 2009. The legitimacy of placebo treatmentsin clinical practice: Evidence and ethics. American Journal of Bioethics9(12): 39-47.How Placebo Deception Can InfringeAutonomyAdam Kolber, University of San Diego School of LawIn "A Limited Defense of Clinical Placebo Deception"(Kolber 2007), I argued that, given our current understand-ing of placebo efficacy and patient preferences, we shouldnot categorically prohibit physicians from using placebosdeceptively. While Foddy (2009) supports my conclusion,he goes much further in his defense of placebo deceptionin ways that are unwarranted. I will limit my brief com-ments to Foddy's discussion of autonomy. In particular, Iwill show why Foddy fails to establish his claim that theresponsible use of placebo deception "is never a threat topatient autonomy" (4) and "does not diminish the patient'sautonomy at all" (4).Foddy (2009) never tells us precisely what he takesautonomy to be. But he does address claims that placebodeception infringes patients' autonomy by reducing theirability to determine their medical futures. He argues, forexample, that placebos "cannot prevent the patient fromseeking worthwhile alternatives" (4) because, in cases ofresponsible placebo deception, there are no worthwhile al-ternatives.As autonomy is usually understood, however, so longas people have certain basic mental capacities, we treat themas autonomous decision-makers even when they are actingirrationally. The unavailability of rationally-desirable alter-natives does not change the fact that placebo deception canrestrict patient autonomy. A law that prohibits you fromcounting grains of sand at the beach may limit your auton-omy even if counting grains of sand serves no worthwhilepurpose. Similarly, a medical ethics regime that, in effect,prohibits you from declining placebo treatments may limityour autonomy, even if you have no worthwhile alterna-tives.Foddy (2009) says that physicians can "characterizeplacebos as a source of temporary, symptomatic relief"(2009) so that patients can still autonomously choose othertreatments. But when patients do so, they will not be choos-ing with the sort of information that many of them wouldlike to have. Sometimes the desire for the information couldbe quite rational. If a person ends up in the emergency roomin an unfamiliar locale, he wants to give his treating physi-cians the most accurate information possible about his cur-rent medications. With false information, his doctors maydecline to use a highly effective treatment out of fear thatit could interact with the medication the patient mistakenlythinks he is taking. Concern about such possibilities hardlyseems irrational.More importantly, placebo deception can limit a pa-tient's autonomous ability to decline treatment, even whenthe patient would have declined for entirely idiosyncraticreasons. Suppose, for example, that a patient has religiousdietary restrictions that prohibit him from eating the inertgelatin in a placebo capsule, unless the capsule constitutesmedication. Let us also assume that placebo treatments donot qualify as medications for purposes of overriding his re-ligious restriction. In such a case, deceiving the patient aboutthe placebo nature of the treatment does interfere with thepatient's autonomous decision to respect his dietary restric-tion. It does so whether his religious practices are rationalor irrational, worthwhile or pointless. Foddy (2009) seemsto be defending paternalistic deception, not autonomousdecision making.Rather than claiming that placebo deception neverthreatens to reduce patient autonomy, I have argued thatplacebos may interfere with patient autonomy but do so lessfrequently than one might think (Kolber 2007,106-108; 114-127). In fact, if we knew that a particular patient was gener-ally willing to be deceived, refusing to deceive the patientmight limit the patient's autonomy (Kolber 2007, 117-118).The mere fact that placebo deception sometimes infringesautonomy, however, is not enough to justify categoricallyDecember, Volume 9, Number 12, 2009Address correspondence to Adam Kolber, University of San Diego School of Law, 5998 Alcala Park, San Diego, CA 92110-2492. E-mail:akolber@sandiego.eduajob 25The American Journal of Bioethicsprohibiting placebo deception. After all, lots of laws infringeautonomy. Autonomy is hardly the only relevant consider-ation. In fact, I argue, a better reason for limiting placebodeception is that it is a scarce medical resource. The morethat doctors prescribe placebos deceptively, the more pa-tients will have reason to be suspicious about the efficacy ofall treatments they receive-whether placebos or not (Kol-ber 2007, 124-127).Another problem with Foddy's (2009) article is that,even though it has the title, "A Duty to Deceive," he neveractually defends such a duty. It is not clear from the arti-cle who, if anyone, is supposed to have a duty to deceive.He states that the American Medical Association (AMA[Chicago, ILl) should endorse placebo use, but endorsingplacebo deception is not itself deception. So, he is not ar-guing that the AMA has a duty to deceive. Nor does anAMA endorsement of placebo deception necessarily givedoctors a duty to deceive. It depends on the nature of theendorsement. Thus, it is not clear whether Foddy believesthat, in certain circumstances, a physician has a duty to useplacebos deceptively.If Foddy believes that physicians have duties to useplacebos deceptively, he has yet to defend the claim. Afterall, physicians have autonomy interests, too. The mere factthat some treatment may be in a patient's best interestsdoes not automatically mean that the physician has a dutyto provide the treatment. There is controversy over whetherdoctors must prescribe treatments to which they have moralor religious objections. Indeed, doctors might have moralobjections to deceiving their patients using placebos. Again,even if they should have no such qualms, they may still haveautonomy interests in conducting themselves according totheir own moral and religious values.While the concept of autonomy is extraordinarily am-biguous and often clouds meaningful debate, under anyplausible conception of the term, placebo deception can in-fringe patient autonomy. And if doctors have duties to useplacebos deceptively, then such duties may infringe theirautonomy, too. I believe that, given our current understand-ing of placebo efficacy and patient preferences, there aregood reasons not to categorically prohibit placebo decep-tion. Unlike Foddy, however, I defend placebo deceptionunder limited circumstances, even though such deceptionsometimes infringes legitimate autonomy interests. *REFERENCESFoddy, B. 2009. A duty to deceive: Placebos in clinical practice.American Journal of Bioethics 9(12): 4-12.Kolber, A. J. 2007. A limited defense of clinical placebo deception.Yale Law & Policy Review 26: 75-134.The Placebo Response: The SharedConstruction of Reality and the Illusionof AutonomyJames D. Duffy, University of Texas at MD Anderson Cancer CenterAutonomy defined by Beauchamp and Childress (2001) asthe "personal rule of the self that is free from both control-ling interferences by others and from personal limitationsthat prevent meaningful choice, such as inadequate under-standing" (57-59) has become one of the central organizingbioethical principle of (post) modern medicine.Patients are typically described as 'healthcare con-sumers' who must navigate a modern marketplace floodedby a tidal wave of highly technological medical options. As aconsumer, the modern 'patient' is viewed as an autonomousagent whose healthcare decisions are created through theirparticular idiosyncratic thought processes. Under the guiseof 'therapeutic neutrality' and supporting 'patient-centereddecision-making', clinicians are trained to avoid being pa-ternalistic out of fear that they may violate their patients'right to autonomous decision-making. This "abandonmentto autonomy" (Loewy 2005) often leaves our patients con-fused, anxious, and sometimes vulnerable to manipulation.This is particularly concerning in the context of profit drivenindustry-sponsored drug trials built on the foundation ofplacebo-controlled randomized clinical trials that includea placebo control. Despite the apparent ethical supportfor such clinical and research standards of practice, recentneuroscientific discoveries about the placebo response andthe decision-making process challenge the ethical validityof 'autonomy' and suggest that patients would be betterDecember, Volume 9, Number 12, 2009Address correspondence to James D. Duffy, MD Anderson Cancer Center, 1515 Holcombe Boulevard, Houston, TX 77030. E-mail:jamesduffymd@gmail.com26 ajob

How Placebo Deception Can Infringe Autonomy

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How Placebo Deception Can Infringe Autonomy

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