The principle of legal paternalism justifies state coercion to protect individuals from self-inflicted harm, or in its extreme version, to guide them, whether they like it or not, toward their own good. Parents can be expected to justify their interference in the lives of their children on the ground that “daddy knows best.” legal paternalism seems to imply that since the state often can know the interests of individual citizens better than the citizens know them themselves, it stands as a (...) permanent guardian of those interests in loco parentis. Put in this blunt way, paternalism seems a preposterous doctrine. If adults are treated as children they will come in time to be like children. Deprived of the right to choose for themselves, they will soon lose the power of rational judgment and decision. Even children, after a certain point, had better not be “treated as children,” else they will never acquire the outlook and capability of responsible adults. (shrink)

It is commonly thought that exploitation is unjust; some think it is part of the very meaning of the word ‘exploitation’ that it is unjust. Those who think this will suppose that the just society has to be one in which people do not exploit one another, at least on a large scale. I will argue that exploitation is not unjust by definition, and that a society might be fundamentally just while nevertheless being pervasively exploitative. I do think that exploitation (...) is nearly always a bad thing, and wul try to identify the moral belief which makes most of us think it is. But I will argue that its badness does not always consist in its being unjust. (shrink)

This is the third volume of Joel Feinberg's highly regarded The Moral Limits of the Criminal Law, a four-volume series in which Feinberg skillfully addresses a complex question: What kinds of conduct may the state make criminal without infringing on the moral autonomy of individual citizens? In Harm to Self, Feinberg offers insightful commentary into various notions attached to self-inflicted harm, covering such topics as legal paternalism, personal sovereignty and its boundaries, voluntariness and assumptions of risk, consent and its counterfeits, (...) coercive force, incapacity, and choice of death. (shrink)

It is commonly thought that exploitation is unjust; some think it is part of the very meaning of the word 'exploitation' that it is unjust. Those who think this will suppose that the just society has to be one in which people do not exploit one another, at least on a large scale. I will argue that exploitation is not unjust by definition, and that a society (such as Our own) might be fundamentally just while nevertheless being pervasively exploitative. I (...) do think that exploitation is nearly always a bad thing, and will try to identify the moral belief which makes most of us think it is. But I will argue that its badness does not always consist in its being unjust. (shrink)

In patient centred care, shared decision making is a central feature and widely referred to as a norm for patient centred medical consultation. However, it is far from clear how to distinguish SDM from standard models and ideals for medical decision making, such as paternalism and patient choice, and e.g., whether paternalism and patient choice can involve a greater degree of the sort of sharing involved in SDM and still retain their essential features. In the article, different versions of SDM (...) are explored, versions compatible with paternalism and patient choice as well as versions that go beyond these traditional decision making models. Whenever SDM is discussed or introduced it is of importance to be clear over which of these different versions are being pursued, since they connect to basic values and ideals of health care in different ways. It is further argued that we have reason to pursue versions of SDM involving, what is called, a high level dynamics in medical decision-making. This leaves four alternative models to choose between depending on how we balance between the values of patient best interest, patient autonomy, and an effective decision in terms of patient compliance or adherence: Shared Rational Deliberative Patient Choice, Shared Rational Deliberative Paternalism, Shared Rational Deliberative Joint Decision, and Professionally Driven Best Interest Compromise. In relation to these models it is argued that we ideally should use the Shared Rational Deliberative Joint Decision model. However, when the patient and professional fail to reach consensus we will have reason to pursue the Professionally Driven Best Interest Compromise model since this will best harmonise between the different values at stake: patient best interest, patient autonomy, patient adherence and a continued care relationship. (shrink)

Although the traditional physician ethic sees nothing objectionable about the doctor's influence over patients, superficial conceptions of the patient's right to self-determination imply that this influence may be manipulative. On the contrary, there are several different lines of argument which can reconcile self-determination with the physician's influence. Nevertheless, drawing the boundaries between legitimate methods of persuasion, and manipulation or coercion sometimes proves difficult.

Proposes a theory of evolution that accounts for the development of human intellect from animal mentality.

Different ideas of the normative relevance of autonomy can give rise to profoundly different action-guiding principles in healthcare. If autonomy is seen as a value rather than as a right, it can be argued that patients’ decisions should sometimes be overruled in order to protect or promote their own autonomy. We refer to this as paternalism in the name of autonomy. In this paper, we discuss different elements of autonomy (decision-making capacity, efficiency, and authenticity) and arguments in favor of paternalism (...) for the sake of autonomy that have been proposed in the bioethical debate. We argue that if autonomy is valuable, then paternalism for the sake of autonomy may be justified. However, policies allowing paternalism in the name of autonomy may be self-defeating. (shrink)

Imagine you are walking down a city street. It is windy and raining. Amidst the bustle you see a young woman. She sits under a railway bridge, hardly protected from the rain and holds a woolen hat containing a small number of coins. You can see that she trembles from the cold. Or imagine seeing an old woman walking in the street at dusk, clutching her bag with one hand and a walking stick with the other. A group of male (...) youths walk behind her without overtaking, drunk and in the mood for mischief. It doesn't need an academic to say what vulnerability is. We can all see it, much more often than we care to. (shrink)

The law of informed consent to medical treatment has recently been extensively overhauled in England. The 2015 Montgomery judgment has done away with the long-held position that the information to be disclosed by doctors when obtaining valid consent from patients should be determined on the basis of what a reasonable body of medical opinion agree ought to be disclosed in the circumstances. The UK Supreme Court concluded that the information that is material to a patient’s decision should instead be judged (...) by reference to a new two-limbed test founded on the notions of the ‘reasonable person’ and the ‘particular patient’. The rationale outlined in Montgomery for this new test of materiality, and academic comment on the ruling’s significance, has focused on the central ethical importance that the law now accords to respect for patient autonomy in the process of obtaining consent from patients. In this paper, we dispute the claim that the new test of materiality articulated in Montgomery equates with respect for autonomy being given primacy in re-shaping the development of the law in this area. We also defend this position, arguing that our revised interpretation of Montgomery’s significance does not equate with a failure by the courts to give due legal consideration to what is owed to patients as autonomous decision-makers in the consent process. Instead, Montgomery correctly implies that doctors are ethically obliged to attend to a number of relevant ethical considerations in framing decisions about consent to treatment, which include subtle interpretations of the values of autonomy and well-being. Doctors should give appropriate consideration to how these values are fleshed out and balanced in context in order to specify precisely what information ought to be disclosed to a patient as a requirement of obtaining consent, and as a core component of shared decision-making within medical encounters more generally. (shrink)

Most anti-paternalists claim that informed and competent self-regarding choices are protected by autonomy, while ill-informed or impaired self-regarding choices are not. Joel Feinberg, among many others, argues that we can in this way distinguish impermissible “hard” paternalism from permissible “soft” paternalism. I argue that this view confronts two related problems in its treatment of ill-informed decision-makers. First, it faces a dilemma when applied to decision-makers who are responsible for their ignorance: it either permits too much, or else too little, intervention (...) to satisfy its proponents. Second, the most promising rationales in favor of the view ignore the distinction between an agent’s voluntarily bringing about some state of affairs, on the one hand, and an agent’s voluntarily assuming a risk, on the other. I conclude that a decision-maker’s ignorance is irrelevant to the permissibility of intervention on her behalf. If it is permissible to intervene in a given ill-informed choice, it would be permissible to intervene in an otherwise similar but informed choice, at least provided that intervention would produce similar benefits in both cases. This shows that we should sometimes accept straightforwardly paternalistic rationales. (shrink)

Amid neglect of patients’ contribution to error has been a failure to ask whether patients are morally responsible for their errors. This paper aims to help answer this question and so define a worthy response to the errors. Recent work on medical errors has emphasised system deficiencies and discouraged finding people to blame. We scrutinise this approach from an incompatibilist, agent causation position and draw on Hart’s taxonomy of four senses of moral responsibility: role responsibility; capacity responsibility; causal responsibility; and (...) liability responsibility. Each sense is shown to contribute to an overall theoretical judgment as to whether patients are morally responsible for their errors . Though how to weight the senses is unclear, patients appear to be morally responsible for the avoidable errors they make, contribute to or can influence. (shrink)

Patients have not been entirely ignored in medical ethics. There has been a shift from the general presumption that ‘doctor knows best’ to a heightened respect for patient autonomy. Medical ethics remains one–sided, however. It tends (incorrectly) to interpret patient autonomy as mere participation in decisions, rather than a willingness to take the consequences. In this respect, medical ethics remains largely paternalistic, requiring doctors to protect patients from the consequences of their decisions. This is reflected in a one–sided account of (...) duties in medical ethics. Duties fall mainly on doctors and only exceptionally on patients. Medical ethics may exempt patients from obligations because they are the weaker or more vulnerable party in the doctor–patient relationship. We argue that vulnerability does not exclude obligation. We also look at others ways in which patient responsibilities flow from general ethics: for instance, from responsibilities to others and to the self, from duties of citizens, and from the responsibilities of those who solicit advice. Finally, we argue that certain duties of patients counterbalance an otherwise unfair captivity of doctors as helpers. (shrink)

Book reviewed in this article: Protecting The Vulnerable: A Reanalysis of Our Social Responsibilities. By Robert E. Goodin. Chicago: University of Chicago Press.