In his article “Nudging and Informed Consent,” Shlomo Cohen (2013) argues, among other things, that 1) “to the extent that the nudge-influenced decision making is rational—in whatever sense,” there...

Medical practitioners are duty-bound to tell their patients the truth about their medical conditions, along with the risks and benefits of proposed treatments. Some patients, however, would rather not receive medical information. A recent response to this tension has been to argue that that the disclosure of medical information is not optional. As such, patients do not have permission to refuse medical information. In this paper I argue that, depending on the context, the disclosure of medical information can undermine the (...) patient’s ability to exercise her autonomy or have therapeutically detrimental effects. In the light of these insights I go on to develop a context-sensitive approach to medical disclosure. The advantage of this account is that it addresses concerns on both sides of the debate; whilst it acknowledges that patients do not have an exercisable ‘right not to know,’ it allows that in some cases medical information ought to be withheld. (shrink)

In this chapter, I consider the idea that physician-assisted death might come into question in the cases of psychiatric patients who are incapable of making autonomous choices about ending their lives. I maintain that the main arguments for physician-assisted death found in recent medical ethical literature support physician-assisted death in some of those cases. After assessing several possible criticisms of what I have argued, I conclude that the idea that physicianassisted death can be acceptable in some cases of psychiatric patients (...) who lack autonomy ought to be taken into account in assessing the moral and legal acceptability of physician-assisted death. (shrink)

In bioethics, the predominant categorization of various types of influence has been a tripartite classification of rational persuasion (meaning influence by reason and argument), coercion (meaning influence by irresistible threats—or on a few accounts, offers), and manipulation (meaning everything in between). The standard ethical analysis in bioethics has been that rational persuasion is always permissible, and coercion is almost always impermissible save a few cases such as imminent threat to self or others. However, many forms of influence fall into the (...) broad middle terrain—and this terrain is in desperate need of conceptual refining and ethical analysis in light of recent interest in using principles from behavioral science to influence health decisions and behaviors. This paper aims to address the neglected space between rational persuasion and coercion in bioethics. First, I argue for conceptual revisions that include removing the “manipulation” label and relabeling this space “nonargumentative]influence,” with two subtypes: “reason-bypassing” and “reason-countering.” Second, I argue that bioethicists have made the mistake of relying heavily on the conceptual categories themselves for normative work and instead should assess the ethical permissibility of a particular instance of influence by asking several key ethical questions, which I elucidate, that relate to (1) the impact of the form of influence on autonomy and (2) the relationship between the influencer and the influenced. Finally, I apply my analysis to two examples of nonargumentative influence in health care and health policy: (1) governmental agencies such as the Food and Drug Administration (FDA) trying to influence the public to be healthier using nonargumentative measures such as vivid images on cigarette packages to make more salient the negative effects of smoking, and (2) a physician framing a surgery in terms of survival rates instead of mortality rates to influence her patient to consent to the surgery. (shrink)

Critics have long dismissed paternalistic choice architecture as conceptually muddled at best and oxymoronic at worst. In this article, I argue that this criticism remains true despite recent replies to the contrary. Further, I suggest that a similar conceptual criticism also applies to non-paternalistic choice architecture. This is due to a three-way tension between the effectiveness, avoidability, and distinctiveness of each nudge. To illustrate this tension, I provide a novel explanation of the mechanics of nudging and a taxonomy of these (...) interventions. I then argue that choice architects who defend the distinctiveness of nudging according to how it guides our behaviour via our unreflective intuitive reasoning encounter a trilemma because the distinctiveness of nudging hinges on interventions being both avoidable and effective. Choice architects cannot achieve this aim without harnessing both our automatic and reflective systems of thought in tandem. However, this diminishes the distinctive character of nudging by bringing it closer to other traditional policy interventions. This establishes the choice architect’s trilemma: a nudge is likely to be either ineffective, effective via some morally unacceptable means, or effective in a manner that is conceptually indistinct from other evidence-based policy interventions. (shrink)

A governing principle in medical ethics is respect for patient autonomy. This principle is commonly drawn upon in order to argue for the permissibility of assisted dying. In this paper I explore the proper role that respect for patient autonomy should play in this context. I argue that the role of autonomy is not to identify a patient’s best interests, but instead to act as a side-constraint on action. The surprising conclusion of the paper is that whether or not it (...) is in the best interests for the patient to die is a morally objective matter. This allows for the possibility that it can be in the best interests of the patient to die even if she autonomously considers it to be in her best interest to continue living. I argue that concerns about ‘mandatory’ euthanasia can be met when patient autonomy is respected as a side-constraint on action. Ultimately, this means that assisted dying is permissible, not because the autonomous patient views her suffering to be unbearable, but because it is in her objective best interests and she permitted it via her consent. (shrink)

Is implementing the beneficent nudge program morally permissible in worlds like ours? I argue that there is reason for serious doubt. I acknowledge that beneficent nudging is highly various, that nudges are in some circumstances morally permissible and even called for, and that nudges may exhibit respect for genuine autonomy. Nonetheless, given the risk of epistemic injustice that nudges typically pose, neither the moral permissibility of beneficent nudging in the abstract, nor its case-by-case vindication, appears sufficient to justify implementing a (...) nudge program in worlds like ours. Drawing on Miranda Fricker’s account of epistemic injustice, I argue that the cogent defense of any nudge program, relative to worlds like ours, stands in need of serious attention to its potential for fostering or sustaining epistemic injustice. A more specific point hinges on recognizing a form of epistemic injustice not enough attended to in the literature to date, which I call reflective incapacitational injustice. This includes relative disadvantages in the attaining of the capacity to engage in critical reason, such as the capacity to go in for potentially critical reasoned deliberation and discursive exchange concerning ends. Since Cass Sunstein’s First Law of behaviorally informed regulation would be taken, in worlds like ours, to justify indeterminately many nudges leading to such epistemic injustice we have general grounds for doubting the moral permissibility of this nudge program. We should hence oppose the implementation of any such program until it is shown not to violate the demands of epistemic justice. (shrink)

Choice architecture is heralded as a policy approach that does not coercively reduce freedom of choice. Still we might worry that this approach fails to respect individual choice because it subversively manipulates individuals, thus contravening their personal autonomy. In this article I address two arguments to this effect. First, I deny that choice architecture is necessarily heteronomous. I explain the reasons we have for avoiding heteronomous policy-making and offer a set of four conditions for non-heteronomy. I then provide examples of (...) nudges that meet these conditions. I argue that these policies are capable of respecting and promoting personal autonomy, and show this claim to be true across contrasting conceptions of autonomy. Second, I deny that choice architecture is disrespectful because it is epistemically paternalistic. This critique appears to loom large even against non-heteronomous nudges. However, I argue that while some of these policies may exhibit epistemically paternalistic tendencies, these tendencies do not necessarily undermine personal autonomy. Thus, if we are to find such policies objectionable, we cannot do so on the grounds of respect for autonomy. (shrink)

In the article “Nudging and Informed Consent”, Cohen argues that the use of “nudging” by physicians in the clinical encounter may be ethically warranted because it results in an informed consent where obligations for beneficence and respect for autonomy are both met. However, the author's overenthusiastic support for nudging and his quick dismissal of shared decision-making leads him to assume that “soft” manipulation is un-problematic and that “wisdom” on the side of medical professionals will suffice to guard against abuse. Opposing (...) this view, we propose that: 1) patient preferences and values should not be boiled down to rational or irrational decisions based on cognitive reasoning alone, 2) potential threats to the physician-patient must be mitigated and could be minimized by employing alternative strategies that acknowledge the impact of cognitive heuristics in shaping decision-making but maintain transparency and trust, and 3) patient preferences and values can be legitimately influenced only under specific circumstances. The latter include: (1) exhaustion of other means; (2) evidence that nudging is effective in a specific context; (3) evidence of clear and active public misinformation (e.g., industry promoting smoking); (4) explicit pubic dialogue between various stakeholders including medical professional societies about nudging; (5) upholding shared decision-making as a preferred approach; and (6) a rich understanding of clinical reality beyond the simple dichotomy of beneficence-autonomy. (shrink)

Das von Cass Sunstein und Richard Thaler ausgearbeitete Projekt eines Libertären Paternalismus stellt fraglos einen der zurzeit meistdiskutierten neopaternalistischen Theorieentwürfe dar. Als hybride Mischung zwischen Theorieprogramm, politischer Bewegung und praxis- und anwendungsorientiertem Policy-Manual, das zuweilen Züge eines populären philosophischen Lebensratgebers trägt, hat Libertärer Paternalismus viel Zuspruch, aber auch heftige Kritik auf sich gezogen, die in diesem Aufsatz auf ihre Plausibilität geprüft werden. Zu diesem Zweck geben die Autoren zunächst einen kurzen Überblick über Ausgangspunkte, Leitorientierungen und Problemvorgaben des Theorie- und Politikprogramms (...) des Libertären Paternalismus. In einem zweiten Schritt werden zentrale Konzepte und Unterscheidungen des libertär paternalistischen Rationales vorgestellt und problematisiert. Daran anschließend werden drei der prominentesten Kritikpunkte an Libertärem Paternalismus auf den Prüfstand gestellt. Hierzu gehören der Manipulationseinwand, Kritiken, die sich auf grundlegende Rechtfertigungsprobleme des Libertären Paternalismus beziehen, und Einwände, die auf langfristige negative Folgen des Nudging verweisen. (shrink)

Strategies for improving individual decision making have attracted attention from a range of disciplines. Surprisingly, neuroscience has been largely absent from this conversation, despite the fact that it has recently begun illuminating the neural bases of how and why we make decisions, and is poised for further such advances. Here we address empirical and normative questions about “nudging” through the lens of neuroscience. We suggest that the neuroscience of decision making can provide a framework for understanding how nudges work, and (...) how they can be improved. Towards this end, we first examine how nudges can be incorporated into a leading model of decision making supported by neurobiological data, and use the model to make predictions about the relative effectiveness of different classes of nudges. We then use the model to demonstrate how nudges can both infringe upon and promote autonomy. Finally, we explore the normative implications of the converging consensus from neuroscience and related fields that many everyday decisions are susceptible to covert external influences. (shrink)