Montgomery and the Information needed for Valid Informed Consent

In the light of Montgomery case  the Royal College of Surgeons  has warned the NHS that failure to fully implement informed consent rules opens the way to more litigation. In this case the court held that doctors must ensure patients are fully aware of any and all risks that an individual patient, not mainstream medical practice, might consider significant. This judgement appears contrary to the judgement given in the Bolam case which held the information necessary for consent to be considered valid was the information most doctors would consider necessary. In other words, the medical profession could act in a paternalistic manner with regard to the amount of information it provided.

I have some sympathy for the Montgomery decision because I believe that patients rather than their doctors should decide how much information they need to make informed consent decisions. Nonetheless I also believe there is now a clear danger of some patients being over informed making it hard for them make informed consent decisions. There is a difference between doctors simply acting paternalistically and acting paternalisticlly if asked to do so. In this posting I will argue it is possible to over inform some patients and that it is possible to give adequate consent on limited information.

 In making by argument I will use an example provided by Steve Clarke.

“Consider the case of ‘Squeamish John’. Squeamish John cannot bear to hear the details of medical procedures; hearing these make him feel weak at the knees and dramatically diminishes his capacity to make sensible decisions. Nevertheless he does not wish to abrogate responsibility for his decision about whether or not to undergo an operation. Squeamish John wishes to participate in a restricted informed consent process in order to make his decision. He wishes to make a decision based only on the disclosure of the risks and benefits of the operation couched in cold, impersonal, statistical language. He does not wish to have any significant details of the procedure described to him.” (1).

In addition, let us assume John is lying in hospital bed suffering from type2 diabetes and needing a leg amputation. Let us assume John gives consent in the restricted way outlined by Clarke and he regains consciousness minus one leg. Intuitively such a situation seems very wrong. Nonetheless I would argue it is possible for John to make an autonomous decision based on restricted information. John is making a decision to trust his doctor and it is possible to make an autonomous decision based solely on trusting the advice of another. If I trust the advice of my lawyer or financial advisor I am making an autonomous decision I can identify myself with. Are then doctors any less trustworthy than lawyers or financial advisors? It seems obvious to me that they are not. Does then the context in which informed consent takes place differ from other contexts such as the law and finance in respect of an agent’s ability to make autonomous decisions? Once again I would suggest it does not. It follows if squeamish John is permitted to make a decision in the way he prefers it would be an autonomous decision.

However, let us put questions of autonomy to one side. Let us assume John’s doctors follow the Royal College of Surgeons advice and do not allow him make his informed decision based on restricted information. Let us further assume John refuses to listen to or read most of the information they provide. In this situation it seems to me that John’s doctors have two available options. First, they might discharge him simply because he won’t listen knowing that his discharge will probably lead to death. In less life threatening cases than that of John this would be the probable outcome. It seems wrong to condemn summon to die because he simply won’t listen. Secondly they might decide his refusal to listen to all the details of his projected operation makes him incompetent to give consent. This decision would have to be validated by the courts. Let us assume this decision is validated and a decision on John’s treatment is made by a surrogate. This surrogate should make a decision based on John’s best interests, his best interests will be decided by his doctors. The outcome would be identical to that if it was accepted that John could make a valid informed consent decision based on trusting his doctors.

I accept my example is an extreme one but I believe it nonetheless raises some interesting questions. First, the Montgomery case seems to show that informed consent is not simply based on respect for autonomy. I have argued it is perfectly possible to make an autonomous decision based on trusting the advice of another person. Some patients at a very stressful time might want to make extremely complicated decisions and would prefer to make simple autonomous decisions. The Montgomery decision seems to deny them the possibility of making such decisions. The Montgomery judgement seems to require that much more information needs to be provided in order to make a valid informed consent decision as opposed to an autonomous decision. Secondly if doctors must ensure that patients are fully aware of any and all risks involved in their procedure, must doctors ensure they understand these risks including the probabilities involved or only have the capacity to understand. Must doctors ensure that their patients listen intently or fully read the information provided? Lastly even if doctors can be sure that patients understand the information should they also insist patients actually use it when making decisions? In conclusion I believe there are problems connected to the Montgomery case’s requirement that patients must aware of any and all risks involved their procedures. I also believe patients must have the possibility of becoming aware of any and all risks involved their procedures but that this awareness should be driven by patients’ needs. It seems this awareness is at moment being driven by fear of litigation rather than any genuine concern for patients’ real needs.

1. Steve Clarke, 2001, Informed Consent in Medicine in Comparison with Consent with Consent in Other Areas of Human Activity, The Southern Journal of Philosophy, 39, page 177

Terminally ill patients and the right to try new untested drugs

In the United States nearly half of the states have passed a “right to try” law, which attempt to give terminally ill patients access to experimental drugs. Some scientists and health policy experts believe such laws can be harmful by causing false hopes and even suffering.  Rebecca Dresser argues that states should not implement such laws due to dashed hopes, misery, and lost opportunities which can follow from resorting to unproven measures, see  hastings centre report . For instance, someone might lose the opportunity to spend his last days with his family in a futile attempt to extend his life. In this posting I want to examine the right of terminally ill patients to try experimental drugs which have not been fully tested.My comments here will only apply to experimental drugs but I would suggest that they could equally apply to all experimental treatments such as the use of Crispr gene editing tools. In what follows experimental drugs will refer to new drugs which have not yet been fully tested. Of course pharmaceutical companies must be willing to supply these drugs. I am only examining the right of patients to try experimental drugs which pharmaceutical companies are willing to supply and not patient’s rights to demand these drugs. In practice pharmaceutical companies might be unwilling to supply such drugs because of a fear of litigation, I will return to this point at the end of my posting.

I fully accept Dresser is correct when she asserts that experimental drugs might cause dashed hopes, misery, and lost opportunities. Untested drugs can cause harm. It is this harm that forms the basis for not allowing terminally ill patients access to these drugs. I now want to examine in more detail the harm that access to experimental drugs might cause to the patients who take them. I will then examine how access to these drugs might harm future patients by distorting drug trials.

How might access to experimental drugs harm the patients who take them? Firstly they might further limit a patient’s already limited lifespan. Secondly they might cause a patient greater physical suffering. Lastly they might cause him psychological suffering by falsely raising hopes and then dashing these hopes if they fail. I will now examine each of these three possible harms in turn. Previously I have argued that terminally ill patients, those suffering from Alzheimer’s disease and other degenerative conditions should have a right to assisted suicide, see alzheimers and suicide  . If terminally ill patients have a right to end their lives it seems to follow that the fact that experimental drugs might possibly shorten someone’s life does not give us a reason to prohibit the taking of such drugs. It might be objected that someone taking a drug to end his life and someone taking an experimental drug to extend his life have diametrically opposed ends. However, even if this is true a patient taking a drug to try and extend his life should be aware that it might do the opposite. Provided a patient is reasonably competent and aware that such a drug might shorten his life it should be up to him to decide if he is prepared to accept the risk of shortening his life in order to have the possibility of extending it. It might now be objected that by providing experimental drugs to someone we are not acting in a caring way, we are not acting beneficently. In response I would argue the opposite holds and that if we prohibit the use of these drugs we are caring for patients rather than caring about them. Caring for differs from caring about. If I care for a dog I must care about what is in its best interests. If I care about a person I must care about what is in his best interests and what he thinks are in his best interests. Failure to do so is a failure to see him as the sort of creature who can decide about his own future and displays moral arrogance. I have argued elsewhere that If I care about someone in a truly empathic way I must care about what he cares about, rather than simply what I think might be in his best interests, see woolerscottus . It appears to follow that competent patients should not be prohibited from taking experimental drugs which might shorten their lives provided they are aware of this fact. After all smoking shortens many smokers’ lives but because we respect autonomy smoking is permissible.

It might be objected that the above argument is unsound as often terminally ill patients are not the sort of creatures who can really make decisions about their own future. The above objection as it stands is unsound as the terminally can make some decisions about their treatment. For instance, it is perfectly acceptable for a patient to choose forgoing some life extending treatment in order to have better quality of life with his family. The above argument can be modified. It might be argued that terminally ill patients are not good at making decisions about their future or lack of it. This might be caused by stress, a disposition for false or exaggerated optimism and an inability to understand probabilities. In response I would point it is not only the terminally ill but the public and some doctors who are not very good at understanding probability, see Helping doctors and patients make sense of health statistics . Nonetheless false optimism remains and this false optimism might distort a terminally ill patient’s decision making capacity. What exactly is meant by false optimism? Is it just a failure to understand probability or is it someone assigning different values, weights, to the things he finds to be important? No decisions are made without reference to these weights, our values, and it follows changing our values might change the decisions we make without any alteration to the probability of certain events occurring. What might appear to us as false optimism might be someone giving different weights to what he finds to be important. I would argue we must accept that the terminally ill have a right to determine their own values and assign their own weights to things they find pertinent to their decision-making for two reasons. Firstly, we should recognise that the terminally ill remain the sort of creatures who can and should make decisions about their own future. Secondly, most of us are in a state of epistemic ignorance about what it means to experience terminal illness and if we criticise the values of the terminally ill we are guilty of epistemic arrogance. It would appear if we accept that the terminally ill are the kind of creatures who can make decisions about their own future the fact that experimental drugs might shorten their lives does not give us reason to prohibit them from using such drugs.

Patients who take experimental drugs might cause themselves physical harm. The first principle in medical ethics is to do no harm, non-maleficence, so it might be argued that the prescription of such drugs by medical practitioners should be prohibited. The above argument is unsound. Chemotherapy harms patients but this harm is offset by its benefits. Let us accept that an experimental drug might harm a patient but that it might also benefit him. Indeed, such drugs are only tested because it is believed that they might benefit patients. The above argument might be modified. It might now be argued that that the prescription of experimental drugs by medical practitioners should be prohibited until such a time as the benefits of taking these drugs can be shown to offset any harm they cause. However, the above argument is also unsound. Chemotherapy does not always benefit patients and so does not always offset any harm it causes. If we accept the above argument then we should prohibit chemotherapy, such a suggestion is nonsensical. However, the modified argument might be still further modified. It might now be argued that that the prescription of experimental drugs by medical practitioners should be prohibited until such a time as the benefits of taking such drugs can be shown to offset any harm they cause in the majority of cases. This further modified argument is about how much risk patients should be exposed to.

The reason we don’t want to expose patients to excessive risk is because we care about them. However we don’t prohibit paragliding because we care about those who participate. Who should determine what risks are acceptable? I can use the same argument I employed above, showing that patients have the right to risk shortening their lives if there is some limited chance of life extension provided they understand the risk involved, to deal with the risk of patients harming themselves. I would suggest that if we prohibit the use of experimental drugs which might harm patients but also might benefit them that once again we are caring for patients rather than caring about them. I argued above that we should care about people in a different way to the way we care for dogs. Failure to do so is a failure to see patients as the sort of creature who can make decisions about their own future and displays moral arrogance. If patients understand the risks involved it should be up to patients to decide if they are prepared to accept these risks. The last way the use experimental by patients might harm them is by causing psychological suffering by raising false hopes and dashing these hopes if these drugs fail. I believe in this context the above argument can once again be applied and I will not repeat it. To summarise it would seem that possible harm to actual patients is not a reason to prohibit access to experimental drugs provided patients are aware of this possible harm.

Even if we accept the above somewhat tentative conclusion it doesn’t follow that we don’t still have a reason to prohibit access of experimental drugs to terminally ill patients. Future patients might be harmed because the effectiveness of drugs might not be fully tested in the future. Drug trials are expensive and if pharmaceutical companies can rely on data obtained by using a drug on terminally ill patients then they might be reluctant to finance fully fledged trials. Doing so might lead to two problems. Firstly, some drugs which appear not to harm terminally ill patients might harm other patients. The long term effects of a drug, which extends a patient’s life in the short term, might not become apparent. Secondly some drugs which do not appear to have any effect on terminally ill patients might be effective on less seriously ill patients. Such drugs might not become available to future patients. Can these two problems be solved?

Regulation might solve the first problem. Experimental drugs might be used on terminally ill patients if they desire them but their use should not be permitted on other patients until after undergoing a full clinical trial. It might appear that because there are less terminally ill patients compared to other patients that pharmaceutical companies would continue to conduct full clinical trials on experimental drugs. However this appearance might be unsound. Pharmaceutical companies might try to extend the definition of a terminally patient so as to continue using some drugs without them ever having to undergo a full trial. This problem might be overcome by regulatory authorities insisting that experimental drugs are only used on those who are terminally ill. Applied philosophers might aid them in this task by better defining what is meant by terminal illness. The well-known physicist Stephen Hawking has motor neurone disease and it is probable that this disease will kill him but at the present he would not be classed as terminally ill. Terminal illness should be defined by how long someone will probably live rather than the probability that his illness will kill him. Perhaps someone should not be considered to have a terminal illness unless it is probable that he has less than six months to live. Let us consider the second problem. Might some pharmaceutical companies be tempted not to fully trial some drugs which might benefit some patients on the basis of incomplete evidence gathered from their use on terminally ill patients? Once again regulation might solve this problem. I would suggest that provided that terminal illness is defined tightly enough that this problem shouldn’t arise. A tight definition of terminal illness means fewer terminally ill patients for pharmaceutical companies to test drugs on forcing them to conduct full clinical trials. To summarise once again it appears harm to future patients does not give us reason to prohibit access to experimental drugs for the terminally ill provided that terminal illness is tightly defined.

Lastly at the beginning of this post I suggested that in practice pharmaceutical companies might be unwilling to supply experimental drugs due to a fear of litigation. It should be possible to overcome this fear if patients are required to sign a comprehensive consent form making it clear not only that there are risks involved but also that these risks include as yet unknown risks.

The above discussion leads to the rather tentative conclusion that the terminally ill should not be prohibited from trying experimental drugs subject to certain safeguards. These are,

1. Terminal illness must be clearly and tightly defined. Philosophy can play an important part in doing this.
2. No drugs which have not been fully tested should be used on non-terminally ill patients except for the purpose of testing
3. Any terminally ill patient taking an experimental drug must sign a comprehensive consent form in the same way patients taking part in trials do. This form must make it clear that they are prepared to accept as yet unknown risks.

Autonomy and Beneficence Revisited

I have previously argued that if someone asks me to buy him cigarettes and I was not going to be significantly inconvenienced that I have reason to do so. I assumed that he was an adult fully aware of the dangers of smoking. I am a non-smoker and believe smoking is harmful. However I also believe in giving precedence to respecting autonomy over acting beneficently. Recently a posting by Michael Cook in bioedge has caused me to question my position. Cook considers the case of a North Carolina woman called Jewel Shuping. Ms Shuping wasn’t born blind but was convinced that she was meant to be blind.  According to her doctors she had Body Integrity Identity Disorder. A psychologist gave her some counselling and after this failed gave her some eye-numbing drops before washing her pupils with drain cleaner. Cook asks was the psychologist right to destroy his patient’s eyesight even if she freely requested him to do so and was happy with the result of this treatment? The case of Shuping is an extreme one, however let us assume I am a carer for someone who becomes housebound and unable to buy the cigarettes he had previously enjoyed. Let us further assume that I buy these for him for a number of years and that eventually he develops lung cancer. In this situation am I partly to blame for his condition or have I only been respecting his autonomy? In this posting I want to examine the way in which we should respect someone’s autonomy. This examination is important for as Cook points out it has wider implications in difficult contexts for informed consent such as gender reassignment surgery and euthanasia.

Why did I argue that if it didn’t inconvenience me that I should buy a smoker a packet of cigarettes when he asked me provided he was an adult and fully aware of the dangers involved? I argued by doing so I was respecting his autonomy. Most people would object that my buying someone cigarettes has nothing to do with respecting autonomy. Respecting someone’s autonomy to most people simply means not interfering with someone doing something he cares about provided that by so doing he doesn’t harm others. If this is all it means to respect autonomy then respecting a smoker’s autonomy gives me no reason to buy him cigarettes when he asks me to do so. Let us accept informed consent is based on respect for patient autonomy. It then also follows that Shuping’s informed consent gave her psychologist no reason to acquiesce to her wishes. He might of course thought he was acting beneficently.

I now want to argue that the account of autonomy outlined above is an incomplete one. I will argue that a more complete account means that someone’s autonomous wishes must carry some weight for me. Let us suppose someone asks me to do him a favour and that doing so would not significantly inconvenience me. If I respect him I must feel it would be better to satisfy these wishes, provided by doing so I do no harm. If this was not so I would be indifferent towards him. Being indifferent to someone is not compatible with showing respect. At this point it might be argued that satisfying someone’s wishes has more to do with acting beneficently towards him than respecting his autonomy. However I would reject such an argument. I can act beneficently towards my dog by satisfying his needs but this doesn’t mean I respect him. I may of course love my dog but love differs from respect. Respecting someone as a person means accepting him as the sort of creature that can determine his own future. Respecting someone as a person means accepting what he determines to be his wishes must have some sort of weight for me. If I see someone as the sort of creature who can determine his own future but give no weight to his wishes then I am indifferent towards him rather than respectful. It does not of course automatically follow on from giving weight to his wishes that I have to satisfy them. Doing so might may harm others or cause me significant inconvenience. However it does follow that if I respect someone as a person and can satisfy those of his wishes which do no harm others without any significant inconvenience that I have reason do so. It further follows a more complete account of autonomy requires satisfying someone’s autonomous wishes provided these wishes do no harm to others or cause significant inconvenience.

Let us accept this more complete account of autonomy. If we accept that informed consent is based on respect for autonomy then I would suggest Shuping’s psychologist did have reason to acquiesce to her demands. It might be objected even if Shuping’s desire did have some weight him that her psychologist should not have acted as he did due the harm caused. Cook poses the question,

“Was the psychologist right to destroy his patient’s eyesight if she freely requested it, was happy with the treatment, and was living in psychological torment because she could see.”

Let us assume that Shuping would have been satisfied if the psychologist had blinded her but that he didn’t do so. Perhaps he believed his refusal to act was in her best interests. However if he did this he might be accused of epistemic arrogance. Moreover he might be accused of failing to respect her autonomy because he is failing to see her as the sort of creature who could make her own decisions. If the above is accepted then when respecting someone else’s autonomy requires that ‘the doing no harm condition’ should be replaced by ‘doing no harm on balance’. At this point it might be objected that such a concept of autonomy is far too demanding as people cannot always decide what on balance does no harm and we should retain the simpler condition of doing no harm.

I now want to argue we should accept the condition of ‘doing no harm on balance’. Let us assume that embedded within our thicker account of respecting autonomy is the simpler Millian account. Let us assume our smoker makes an autonomous decision to buy cigarettes. It follows that if I respect his autonomy that I should not act to stop him buying cigarettes by hiding his wallet according to the Millian account. Now let us now assume that he has broken his leg and that it would not inconvenience me to buy him the cigarettes. However I believe the cigarettes will cause him harm and refuse. In both scenarios I can prevent this harm by refusing to buy cigarettes when he has broken his leg and by hiding his wallet when he hasn’t. In both of these scenarios the outcome doesn’t change. If I hide someone’s wallet then I am acting to block him from exercising his autonomy. And if I refuse to buy him cigarettes I am omitting to act. A discussion of autonomy is an unusual place for the act’s/omissions controversy to occur. Does the difference between acts and omissions apply in this context? Indeed is there any real difference between acts and omissions in practical deliberation, see Julian Savulescu’s posting in practicalethics . In both of the above scenarios we are aware of the effects of our choice of behaviour. Christine Korsgaard argues that “choosing not to act makes not acting a kind of acting, makes it something that you do.” (1) I would suggest provided Korsgaard is correct then if someone chooses to act or chooses to omit to act that there is no meaningful difference between acts and omissions. It is still possible that acts and omissions might differ provided ones actions are ones he is fully conscious of and are omissions are unconscious choices. However is such a difference one between acts and omissions or a difference between degrees of consciousness concerning our behaviour? The above suggests to me that when it comes to respecting autonomy there is no meaningful difference between acts and omissions. It follows if I believe smoking will harm the smoker but refrain from hiding his wallet but refuse to buy him cigarettes I am acting inconsistently.

What conclusions can be drawn from the above? Firstly that a purely Millian account of autonomy is an incomplete account. A more complete account means that respecting someone’s autonomy requires that one must sometimes act beneficently towards him by attempting to satisfy his desires provided so doing does not harm him on balance and does not cause significant inconvenience. Autonomy and some forms of beneficence are linked. Of course I accept that someone might have other reasons to act beneficently which are independent of respecting autonomy. Secondly it follows I should buy the smoker his cigarettes. Lastly it would seem Shuping’s psychologist acted correctly. I am somewhat reluctant to accept this conclusion. Perhaps in cases in which the stakes are so high there must be some doubt as to whether one is in fact causing no harm on balance and the precautionary principle should be applied. Nonetheless in spite of my reluctance I am forced to conclude that provided he was sure he was causing no harm that on balance Shuping’s psychologist was acting correctly.

1. Christine Korsgaard, 2009, Self-Constitution, Oxford University Press, page 1.

Prisoners serving Life Sentences and Voluntary Euthanasia

In previous postings I have suggested that prisoners serving life sentences have a right to be assisted to commit suicide, see Prisoners serving Life Sentences. In this posting I will argue that this right should only apply to assisted suicide and should not extend to euthanasia. Before commencing my argument I will make some definitions I will use clear. Euthanasia means someone deliberately ends another’s life to end his suffering. Involuntary euthanasia means this is done when he does not consent. Non voluntary euthanasia means this is done when he is incapable of giving consent. Voluntary euthanasia means this is done with his consent. Assisted suicide means someone deliberately provides the means for another to end his own life. I will assume without any further argument that involuntary and non voluntary euthanasia are inapplicable to prisoners serving life sentences. In what follows I argue voluntary euthanasia should also be inapplicable to such prisoners.

Let us consider a prisoner serving a life sentence for some gruesome murder of an innocent person. Let us further assume this prisoner decides he wants to die. Why if he fully consents shouldn’t someone end his life? One reason might be that, unless the prisoner was suffering, doing so would not be a case of voluntary euthanasia. Moreover, unless the prisoner was suffering, it is not clear what would be the motive of whoever carried out the act. The motive could not be one of punishment for punishment should not depend on the wishes of the prisoner. However let us now assume our hypothetical prisoner is suffering. Why in these circumstances, provided the prisoner fully consents, shouldn’t someone end his life? One reason might be that the prisoner’s suffering could and should be relieved by other means. If his suffering is caused by poor penal conditions then these should be addressed. Voluntary euthanasia should never be used to tackle poor penal conditions; even if it tackles overcrowding! Let us now further assume that the prisoner’s suffering is not caused by poor penal conditions. Perhaps his suffering is caused by mental health problems. If a prisoner suffers from a physical illness such as diabetes then his suffering should be addressed by medical means. Similarly I would argue if a prisoner suffers from mental problems his suffering should be addressed by mental health experts. Voluntary euthanasia should not be used to address mental health problems. Lastly let us consider a scenario in which the prisoner’s suffering is not caused by penal conditions or any mental health problems. Perhaps he simply does not want to spend the rest of his days in prison or more unlikely perhaps he suffers from remorse because of the terrible crimes he committed. Surely if assisted suicide is permissible in such circumstances then so should voluntary euthanasia? I will now argue that voluntary euthanasia should also remain inapplicable even in these circumstances.

In my previous postings I have argued that a prisoner should retain some limited autonomy. Part of that limited autonomy is the right to commit suicide. As the state deprives a prisoner of the means to commit suicide it should provide him with these means in a controlled environment. The prisoner’s right to be assisted to commit suicide depends on his ability to make an autonomous decision. At this point an objector might point out voluntary euthanasia also involves an autonomous decision. She might proceed to argue, if I use a prisoner’s retention of limited autonomy to justify assisted suicide that, the same justification could apply to voluntary euthanasia.

I have two responses to my objector’s argument. Firstly I would suggest we have no need to kill someone provided he can be assisted to commit suicide. My objector might respond by suggesting that there is no real moral difference between killing and assisting someone to die. This is simply a variation of the acts and omissions problem and I will not deal with his suggestion here. My second response carries more weight. I would suggest we can never be completely certain whether someone’s decision is an autonomous one or not. I will then argue we can be more certain that someone has made an autonomous decision to commit suicide than when he gives informed consent to voluntary euthanasia. I will base my argument on the importance of what we care about when making autonomous decisions, see (1). Frankfurt argues autonomous decisions are decisions the agent cares about. I have suggested that autonomous decisions are decisions which are not discordant with what the agent cares about, see autonomous decisions . However I would agree with Frankfurt by suggesting an agent’s actions are better indicators of his autonomous decisions than the choices he makes or what he decides to do. The choices he makes and what he decides to do are only intentions. Sometimes when we come to act we find we cannot carry out our prior intentions because it was not clear to us what we really care about until we came to act. A prisoner giving informed consent to voluntary euthanasia is making a choice and deciding what would be best for him. His intentions are of course an indicator of an autonomous decision. However in the light of the above a prisoner’s actions in committing assisted suicide are a much better indicator of his autonomous decision.

1. Harry Frankfurt, 1988, The Importance of What We Care About. Cambridge University Press, page 84.

More Autonomy

In Melbourne Australia Harry Kakavas lost $20.5 million to a casino. He sued the casino arguing it should have known he was a pathological gambler and as a result not taken his money. He lost his case in the Australian High Court. The Court ruled that Kakavas did not show that he suffered from a disability, special to him, which was exploited by the casino. What sort of disability is relevant in such a case? It would seem in this particular case that Kakavas did not have the ability to make meaningful decisions, decisions which were in his own interests, whilst gambling. Gambling affected his autonomy. The Kakavas case raises questions about the nature and extent of autonomous decisions. In this posting I will examine both of these questions. I addition I will consider when we have a duty to intervene when someone makes a non-autonomous decision; provided of course we have the power to do so as the casino involved with Kakavas did,

Which of the decisions we make are autonomous? It might be thought that these decisions must be important decisions which we make only after careful consideration. A patient giving informed consent might be seen a paradigmatic example of such an autonomous decision. If this is so someone making a decision without appropriate reflection might be said to be making a non-autonomous decision. It might then be argued we can safely ignore her decision because it does not represent her ‘real self’, see Berlin (1). It is not a decision she would have made if he had more adequately reflected on it. I would suggest such an attitude is one of moral arrogance.

I now want to argue almost all of the decisions we make are autonomous. A common theme throughout all my postings is that someone’s autonomy depends on what she ‘cares about’. Caring about in this context means not merely wanting something; it means someone’s identity, her ‘real self’, is dependent on what she cares about. Moreover I have argued in previous postings what someone ‘cares about’ is defined by what she is satisfied with. Satisfaction in this context simply means no resistance to a decision, no restlessness with that decision (2). There is no desire to change the decision. It is important here to be clear satisfaction with a decision does not equate with being happy about a decision. As I have argued before someone with a terminal illness may decide to commit suicide and be completely satisfied with her decision but nonetheless her satisfaction does not imply she is happy about it. Accepting the above means if someone is satisfied with some decision and has no inclination to change her decision that her decision is an autonomous one. I would suggest that people are satisfied, as defined above, with almost all of their decisions. The above leads to the tentative conclusion that almost all of the decisions we make are autonomous.

At this point an objector might be prepared to accept that for a decision to be autonomous it must be based on what we care about. However she might be unwilling to concede that it naturally follows that almost all of our decisions are autonomous. My objector might argue we can only know what we care about after adequate reflection. She might then further argue that because most of our decisions are non-reflective that most of our decisions are non-autonomous. If my objector’s argument is to carry any weight then she must accept one of two options. Firstly someone may make an autonomous decision based on what she cares about and be dissatisfied with her decision. Or secondly she must accept that being satisfied with a decision is a necessary condition for that decision to be an autonomous decision based on what the agent cares about but argue it is not a sufficient condition. Let us examine the first option. An agent can make an autonomous decision and be dissatisfied with it. I accept an agent can make an autonomous decision she’s not happy with, see above, but I can’t accept she can make an autonomous decision she’s not satisfied with. Let us accept satisfaction with a decision does not simply mean the agent has some smug feeling but means she has no resistance to her decision, no restlessness to change it. It follows if an agent is dissatisfied with a decision that she either resists the decision or seeks to change it. She is ambivalent about her decision. I don’t accept that any decision someone is ambivalent about and seeks to change can be an autonomous decision. It follows an agent cannot make an autonomous decision she is dissatisfied with.

Let us consider my objectors second option that being satisfied with a decision is a necessary condition for that decision to be an autonomous one based on what the agent cares about but that it is not a sufficient one. My objector might suggest that for a decision to be an autonomous one not only must the agent be satisfied with it but that she must have reflected on it. This suggestion would mean most decisions we make are non-autonomous. Of course for many of the decisions we make this doesn’t matter. No one is really concerned whether someone’s decision to have an ice cream is an autonomous one or not. However let us consider a family on a summer’s day sitting on the bank of a fast flowing river eating ice cream. Let us assume one of the children falls into the river and without any thought the mother jumps in and saves the child. Was this a non-autonomous decision? I would argue it was an autonomous decision. Indeed the mother might feel hurt if someone suggested afterwards her actions were mindless. She might say she minded very much, she loved her child, and that she couldn’t act any other way, reflection was pointless. The above suggests for a decision to be autonomous all that matters is that the agent cares about it. It suggests that caring about a decision is both a necessary and a sufficient condition for that decision to be autonomous in conditions in which the agent has been neither coerced nor deceived. Of course sometimes an agent may have to reflect on what he cares about but it is caring about rather than reflection that guarantees a decision is autonomous. Indeed it might be argued the fact that an agent feels a need to reflect on a decision make the autonomy of the decision less certain.

My objector might accept that for a decision to be an autonomous one the agent must care about her decision but suggest we don’t really care about many of our decisions. For instance she might point out my decision to buy an ice cream on a sudden whim is not based on what I really care about in the way we have been using the term. We only care about important decisions and only these decisions can be autonomous or non autonomous, mere whims don’t count. I believe this might be the position Frankfurt would adopt, see (3). I however would adopt a slightly different position. I would suggest an autonomous decision need not be one an agent cares about but any decision he makes which is not discordant with what he cares about. If my suggestion is accepted then most of the decisions we make, including my whim to buy ice cream, would be autonomous. At this point my objector might point out my suggestion seems to weaken the connection between autonomy and personal identity. Frankfurt argues our identity is linked to what we care about.

“Caring is important to us for its own sake, insofar as it is the indispensably activity through which provide continuity and coherence to our volitional lives. Regardless of whether its objects are appropriate, our caring about things possesses for us an inherent value by virtue of its essential role in making us the distinctive kind of creatures that we are.” (4).

I agree our identity is connected to what we care about. It might appear that because identity and autonomy are connected that autonomous decisions must be decisions we care about. I believe appearance is unjustified. I have suggested above that autonomous decisions are connected to what we care about, our identity, by being decisions which are not discordant with what we care about, our identity. Of course when making most decisions we don’t reflect about our identity. Nonetheless I would suggest our identity is always present even if only in the background. I would further suggest this presence gives continuity and coherence to our lives. If autonomous decisions are any decisions which are not discordant with what we care about then not all autonomous decisions play an equal part in defining our identity. Indeed some like my decision to have an ice cream may play no part. Nonetheless if I continually buy ice cream I may be said to be someone who likes ice cream and this plays a small part of my identity. In the light of the above it appears an agent caring about her decision is not necessary for her decision to be an autonomous one. Moreover someone’s being satisfied with her decision is both a necessary and sufficient condition for the decision to be an autonomous one in circumstances in which she has not been deceived or coerced.

I have argued that most of the decisions we make are autonomous decisions. In addition I believe we should always accept an autonomous decision even if this decision harms the decision maker provided of course the decision does not harm others. I believe we must give precedence to respecting autonomy over acting beneficently. It seems to me someone’s identity is tied to her autonomy, tied to what she finds appropriate, what satisfies her. If we fail to respect someone’s autonomy we fail to respect her. Let us consider an example. Personally I detest is smoking. Moreover smoking harms smokers. Let us assume I one of my friends is a smoker who on hearing I am going to a shop asks me to buy her some cigarettes. As I am going to the shop anyway I will not be inconvenienced if I buy her cigarettes. Let us also assume she is completely satisfied with her decision, she will not smoke in my presence or that of other non-smoker and that she fully understands the dangers of smoking and is not deceiving herself. Let us further assume I refuse to buy her cigarettes because I believe these will harm her. I am helping her to prevent harming herself by not respecting her autonomous request even though satisfying her request would not inconvenience me. I am giving priority to acting beneficently over respecting her autonomy. I would suggest in this example I am merely paying lip service to respecting her as a person. Perhaps I might console myself that I am respecting her real self, but this real self is really an ideal self created by me. In this example I believe I could justly be accused of some sort of arrogance.

If we accept we should respect autonomy over acting beneficently and most decisions we make are autonomous in the sense used above then we have to accept a large number of decisions which are unwise or even foolhardy. Kakavas’ decision to gamble in the casino was certainly an unwise one but was it also a non-autonomous one? If it was an autonomous one then the casino should respect his decision however unwise it was. In theory it seems there might be completely satisfied gamblers. However in practice most gamblers feel guilty about their gambling and have some resistance to their compulsion to gamble. It follows most gamblers’ decisions to gamble are non-autonomous decisions. It seems probable that Kakavas’ decision to gamble was a non-autonomous one. It follows the casino could not justify, allowing Kakavas to continue gambling, on respect for his autonomy.

In normal life we generally accept peoples’ decisions, even if many of these are not autonomous decisions, provided we have no reason to suspect that these decisions will harm the decision maker. Kakavas’ gambling clearly harmed him. How could a casino possibly justify allowing Kakavas to gamble if his gambling was both non-autonomous and harmed him? One possible justification concerns the nature of the harm involved. Kakavas’ gambling harmed him financially but it might have done only limited harm to his capacity to make autonomous decisions. Kakavas’ capacity to make autonomous decisions was impaired whilst gambling but perhaps it remained unimpaired at other times. He could have made an autonomous decision not to go to the casino in much the same way a recovering alcoholic makes a decision not to go to a bar. The casino might argue even if Kakavas was harmed it was respecting his autonomous decision to go gambling and it was justified in respecting this decision because respecting autonomy should take precedence over acting beneficently. I would accept the above argument. However I would be some what sceptical about a gamblers ability to make a decision she knows will make her feel guilty without any resistance to her decision.

Autonomy and Love Enhancement

In a paper Earp, Sandberg and Savulescu suggest individual couples should be free to use pharmacological interventions, provided these interventions allow us to keep our values and our environment intact, to sustain and improve their romantic connection. They then proceed to suggest some parents might have an obligation to do so in order to enhance their relationships for the sake of their children. They further suggest that this might be done by the use of “love drugs” such as oxytocin. Their arguments run as follows. First they argue,

1)      Parents have an obligation to protect their children from harm, all else being equal.

2)      Marriage breakdown, and especially outright divorce, is harmful to children.

3)      Therefore parents have an obligation (all else being equal) to preserve and enhance their relationships—for the sake of their offspring.

They then proceed to argue,

1)      Parents have an obligation (all else being equal) to preserve and enhance their relationships for the sake of their offspring.

2)      In many cases, the only way to do this is through pharmacological intervention, in conjunction with other more conventional strategies like couple’s therapy.

In assessing this argument it is crucial to understand what is meant by all else being equal. I will assume that all else being equal means any pharmacological intervention must have no damaging physiological or psychological side effects. However it also seems the authors believe all else being equal also means our keeping values and our environment intact. In what follows I will firstly argue such a belief is mistaken. I will then consider the implications of this mistake for the argument as a whole.

Firstly it is clear any love drug must of necessity change the environment we live in if it is to be effective. Such drugs will not of course change our physical environment but they will change our psychological environment. If parents live in a psychological environment characterised by lots of minor discords, waning love and a general unhappiness then love drugs should change this environment. Indeed the whole point of parents taking love drugs is to change their psychological environment in order to stop them divorcing. However people take anti-depressants all the time in order to change their psychological environment with no ill effects. This suggests to me the fact that someone who takes love drugs will have her environment changed is not a reason to reject Earp, Sandberg and Savulescu’s argument.

Does the taking of love drugs change someone’s values? Change in the context of values could have two meanings. Firstly change might means someone acquires new values or loses some of her existing ones. Secondly change could mean she alters the priorities she gives to her existing values. Let us assume someone’s values are linked to what she cares about. Let us further assume her identity as a particular person depends on what she cares about, upon her values. It follows if she acquires new values or loses some of her existing values she alters her identity to some degree. However I would argue someone’s identity is tied not only to those values she possesses but also to the priorities she gives to these values. For instance someone might value both being a mother and being good teacher. However someone who values being a mother first and a teacher second has a different identity to someone who reverses these priorities. It follows if someone changes the priorities she gives to her values she also changes her identity. The taking of love drugs does not appear to change someone’s values using my first meaning. However the purpose someone has in taking of love drugs would be to change the priorities she assigns to her various values in order to benefit her children. It follows the taking of love drugs changes someone’s values using the second meaning of change outlined above. It further follows the taking of love drugs changes someone’s identity.

If we accept that someone taking love drugs will have her identity altered does this give us a reason to reject Earp, Sandberg and Savulescu’s argument? It might be concluded the taking of these drugs would make someone inauthentic and this fact alone gives us reason to reject the authors’ argument. However such a conclusion seems premature. Just becoming a parent might also change someone’s identity and alter her values. Indeed it might not only alter the priorities someone assigns to her values but generate new values. The fact someone’s identity sometimes changes over time is natural and should usually give us no cause for concern. Someone might accept that natural changes in our identity do not give us cause for concern but object that the taking of love drugs is unnatural. In response I would suggest simply talking about something being natural or artificial is not really helpful; it doesn’t really do any work. My objector might respond by arguing what really matters is the way the change is caused. I accept her point. I further accept if love drugs alone cause a change in someone’s identity that their use is unacceptable and that we should reject Earp, Sandberg and Savulescu’s argument because of the damage these drugs do to her autonomy.

However I am reluctant to accept love drugs alone cause a change in someone’s identity. After all someone doesn’t just take a drug randomly with no purpose in mind. She takes a drug for a purpose and it follows she uses the drug instrumentally. In what follows I will argue firstly that love drugs might enable a parent to make a better decision and secondly these drugs might enable a parent carry out a previously made autonomous decision. Prima facie it might appear there is no reason as to why the taking of a love drug might enable us to better decision. However the truth of this appearance depends on how a specific drug works. Some drugs enhance our cognition. It seems plausible that a cognition enhancing drug might permit parents to see beyond their short term marital problems and see that remaining married will give them greater satisfaction in the long term as well as benefiting their children. Indeed studies have shown oxytocin, a potential love drug, is involved in nursing behaviour, trust, and mind-reading (1). If oxytocin enhances mind reading it enhances cognition and might enable parents to make better marital decisions resulting in fewer divorces and less harm to their children. Moreover the taking of such a love drug might be seen as enhancing rather than damaging someone’s autonomy.

I now want to consider the situation when love drugs might be seen as enabling someone to enact her previously made autonomous decision. Let us return to my example of someone who is both a mother and teacher. Let us assume she desperately wants to be a good mother but finds it hard to bond with her child and gives far greater priority to her teaching. Let us also assume after some reflection she makes an autonomous decision to shed some of her teaching load in order to become a better mother. Let us still further assume she still finds it difficult to implement this decision and bond with her child. After some further reflection she makes an autonomous decision to take oxytocin to enable to enact her previously made autonomous decision. Prima facie it appears the taking of a love drug has once again enhanced rather than damaged someone’s autonomy and we have no reason to reject Earp, Sandberg and Savulescu’s argument. However I have some reservations about accepting this appearance.

My first reservation is connected to what sort of autonomy we want to respect. Let us accept the mother’s decision to take oxytocin is an autonomous one. However it is perfectly possible for someone to make an autonomous decision which has the result of damaging her capacity for autonomy. One can decide to take heroin or perhaps more realistically a terminally ill patient might decide to commit suicide. Is it possible that a love drug such as oxytocin might also damage someone’s capacity for autonomy? Perhaps such a drug might bind someone so close to her partner that this affects some of the other things she cares about and perhaps even her cognitive judgements. Of course if we give priority to respecting someone’s autonomous decision over preserving her capacity for autonomy this reservation becomes groundless. Personally I favour respecting autonomous decisions over respecting someone’s capacity for autonomy. For instance if we respect a terminally ill cancer patient’s capacity for autonomy rather than her autonomous decision to die then she might be left with her capacity for autonomy but use it only to make decisions to die which she is prevented from implementing.

My second reservation concerns whether a mother’s decision to love her child more is always truly autonomous. Let us accept she had all the relevant facts and was un-coerced. Moreover she was under no pressure from her partner, friends or grandparents. It might be thought by many the mother’s decision was clearly autonomous. However the fact that she needed to take oxytocin to implement her decision suggests this might not be so. I would agree with Frankfurt that for her to make an autonomous decision means she has to come to care about certain things and she must come to care about some of them more than others rather than simply reflect upon her decision (2). Frankfurt uses the example of a mother who after some reflection decides it would be in the best interests of her child if he was adopted. However when the moment for adoption comes she cannot go through with her decision. Her purely reflective decision was one she was unable to implement because she discovered what she truly cared about (3). Helm also holds that we sometimes discover our values rather than reach them purely through reflection (4). I would question whether, if the mother in the above example took love inhibiting drugs to enable her to let her child be adopted, we would say these love inhibitors enhanced her autonomy. Indeed it might be argued these inhibitors damaged her autonomy. The above example of course does not show love drugs might damage someone’s autonomy but it does support my reservations and emphasises the need for caution.

1. Domes, G., Heinrichs, M., Michel, A., Berger, C. & Herpertz, S. C. (2007) Oxytocin improves “mind-reading” in humans. Biological Psychiatry 61, 731–733.
2. Frankfurt H, 1988, The Importance of What We Care About. Cambridge University Press, page 91.

3.      Frankfurt H, 1999, Necessity, Volition, and Love. Cambridge University Press, page 111.

4.      Bennett Helm, 2010, Love, Friendship & the Self, Oxford University Press, page 131.

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Sexually Coercive Offers

James Rocha asks what is wrong with the following coercive offer.

“Hal is Vera’s supervisor at food services company which is expanding into the global market. The company decides to staff its international offices with workers from the US. Hal must send one of his employees to the new Paris or Bucharest office. Vera, while happy to accept a new foreign assignment with much higher pay, would much prefer Paris. Unfortunately the company has randomly assigned her to Bucharest. Hal, knowing the contents and strength of Vera’s preferences, offers to change her to Paris in exchange for sex. If Vera refuses, she will simply be assigned to Bucharest, which has the benefit not only of higher pay, but gets her away from Hal” (2011, The Sexual Harassment Coercive Offer, Journal of Applied Philosophy, 28(2)).

Rocha connects the wrongness of Hal’s action to his disrespect for Vera’s autonomy. He states it is possible to respect an agent’s autonomy whilst changing her actions to a more preferable autonomous action, page 206. I have argued in this blog that autonomy is not simply about choices. Autonomy concerns what the agent cares about or values. I have also argued respecting autonomy means simply respecting the choices autonomous agents make about provided these choices do not harm others. Rocha argues Hal disrespects Vera’s autonomy by inserting influence over her sexuality standards, page 210. Caring about something means you identify yourself with that thing and that this identification must have persistence. It seems to me provided Vera cares about her sexual standards Hal’s offer is unlikely to influence these standards. It follows provided Hal accepts any decision Vera makes he does not disrupt her autonomous decision making.

Nevertheless there seems to be something morally wrong about Hal’s offer. Before continuing to consider disrespecting autonomy I will briefly point out two of these. Firstly Hal seems to have no natural sympathy or empathy for Vera. Slote defines a morally wrong action as one that reflects or exhibits or expresses an absence (or lack) of a fully developed empathic concern for (caring about) others on behalf of the agent. If Hal felt empathic concern for Vera he might offer her the Paris posting unconditionally. Secondly a virtue ethicist might point out Hal’s proposed offer is simply not one a virtuous man would make.

Rocha argues what is disrespectful in connection with autonomy in Hal’s offer is that it seeks to alter Vera’s ends. I would agree with Rocha that Hal’s offer is disrespectful to Vera’s autonomy but would argue this disrespect is not primarily connected with Hal seeking to alter Vera’s ends; it is connected to Hal failing see Vera as an end in herself. Hal sees Vera primarily as a means to his own sexual gratification. We respect autonomy because it has value. Autonomy has both instrumental and intrinsic value. According to Dworkin,

“there is a value connected with being self-determining that is not a mater of either of bringing about good results or the pleasure of the process itself. This is the intrinsic desirability of exercising the capacity for self-determination. We desire to be recognized as the kind of creature capable of determining our own destiny.” (1988, The Theory and Practice of Autonomy. Cambridge University Press page 112)

I have argued Hal’s offer is unlikely to disrupt Vera’s decision making. It follows in practice Hal’s offer is unlikely to disrupt the instrumental value of Vera’s autonomy. Perhaps then Hal’s offer does not disrespect the instrumental value of Vera’s autonomy. However Hal by making his offer fails to see Vera as the kind of creature who can fully determine her own future. Hal’s offer means he disrespects the intrinsic value of Vera’s autonomy and as a consequence fails to truly respect her as a person. I would suggest we value being truly respected as a person more than we desire good options to choose from. My suggestion is open to empirical investigation. However provided my suggestion is correct then the real harm Hal’s offer does to Vera’s autonomy is that he fails to respect its intrinsic value.

Prisoners serving Life Sentences and Assisted Suicide

In his posting on practical ethics Shlomit Harrosh connects the rights of death row inmates in certain states of the USA to choose the method of their execution and those of terminally ill patients choosing when to die, see Harrosh . Harrosh believes some personal autonomy is important even in the difficult circumstances of death row and that by choosing how to die a prisoner is to some limited degree choosing how to live as an expression of who he is and what he values as an autonomous agent.

“Like the choice of a last meal, the choice of method of execution is a final exercise in personal autonomy. Within limits, it gives prisoners the opportunity to choose the final experiences of their lives and express their values and preferences.”

Harrosh goes on to suggest that by choosing when to die terminally ill patients are making a similar choice.

“Terminally ill patients who choose voluntary euthanasia are similarly choosing how to live. The choice to hasten death is simply a means to an end: ensuring that their remaining time is lived according to their standards of a worthwhile life, expressing their values and preferences.”

Harrosh believes both of these rights have the same basis. He concludes if the right of death row inmates to choose between methods of their execution is permissible it follows that terminally ill patients have the right to choose when to die. I agree with Harrosh’s conclusion even though some might argue choosing when to die is not the same as choosing how to die.

The public at large appears to believe if some murderer, paedophile, terrorist or mass rapist attempts to commit suicide whilst in prison that no attempt should be made to prevent him doing so. In this posting I want to subject this common belief to some philosophical scrutiny. I will initially restrict my consideration to offenders who have committed terrible crimes which mean they will never be released from custody. In what follows offenders will specifically refer to those offenders who never be released from custody unless I specify otherwise. Harrosh makes a connection between the right of prisoners on death row to choose the method of their execution and the right of the terminally ill to choose when to die. I want to connect the right of terminally ill patients to choose when to die and a right of offenders to choose when to die. In what follows I will propose if terminally ill patients possess a right, to choose when to die, then so should these offenders. At the outset I must make it clear this is not an argument in support of capital punishment and that I personally do not believe in such punishment.

Do terminally ill patients have the right to choose when to die? Most people working in applied philosophy would accept this right and as a consequence I will only present a brief argument to support the right. Harrosh believes terminally ill patients have this right because they have the right to choose how to live their lives. I agree with Harrosh and would further argue these patients have the latter right because we should see such patients as the same sort of creatures as ourselves. Harry Frankfurt believes the intrinsic value of our autonomy is connected to the recognition of us by others as the kind of creature capable of determining its own destiny (1). Christine Korsgaard believes that by choosing we determine our identity (2).  If we accept that Frankfurt and Korsgaard’s views are correct then were we to deny terminally ill patients the right to choose when to die then we appear to be failing to accept these patients as the same sort of persons as ourselves. Someone might object this appearance is false and that we do see these patients as the same sort of persons as ourselves even if we deny them the right to choose when to die. He might argue we see ourselves as the sort of persons who can normally choose how to live our own lives but whom, if we became terminally ill, would have this choice restricted. I would counter argue due to our identity being so closely tied to our ability to choose if someone becomes terminally ill and his health is damaged and as a result his choices are restricted then even though he remains a person he is treated as a damaged person. I would suggest damaged health should not automatically mean a damaged person.  My objector might now argue my argument carries little weight because I have failed to adequately specify what I mean by a damaged person. I accept his argument. I suggested above our identity as persons is closely tied to our ability to choose. I would now suggest this ability to choose is not just the ability to make any choice but an ability to make an autonomous choice. The above means a damaged person might be defined as one whose capacity to make autonomous decisions has been damaged. I see no reason why most diseases or injuries must of necessity damage someone’s autonomy, diseases of or injuries to the brain might be exceptions. It follows even if disease or injury damages someone’s health that it does automatically damage him as a person and that we should continue treating him as such. Let it be accepted without any further argument that terminally ill patients do have the right to choose when to die because they have the right to choose how to live their lives. However, it is certainly not true that offenders have the same rights as the rest of us. My objector might now argue even if not all terminally ill patients are damaged persons all offenders are. I would reject such an argument as I have defined damaged persons as people whose capacity to make autonomous decisions has been damaged. I would suggest for the most part these offenders are damaged moral persons rather than damaged persons. Korsgaard would disagree with my suggestion. However I must accept some offenders are damaged persons unable to make autonomous decisions due to physiological or psychological conditions. I believe such offenders should be in secure mental health institutions such as Broadmoor rather than normal prisons. In the light of the above I will limit my discussion further to offenders in a normal prison who will never be released. I believe we should see such offenders as basically the same sort of people as ourselves, autonomous persons. Indeed history teaches us that evil is not usually perpetrated by people who are vastly different from ourselves. The Milligram Experiment further supports this point, see my previous posting. It follows even though these offenders have committed some terrible crimes they are not damaged as autonomous persons. The recognition of such offenders as undamaged autonomous persons means we should accept that they retain some choice about how to live their lives provided these choices will not harm others. For instance they may have the choice of attending religious services, which library books they choose or attending literacy classes. Should these limited choices include the right to choose to die? 

The answer to the above question depends on why we send offenders to prison. We send offenders to prison for three reasons; firstly to protect ourselves, secondly to punish the offender and lastly to rehabilitate him before he is released. We can disregard the last reason in this discussion. Prima facie if we should treat offenders as persons like ourselves then these offenders should retain all choices about how to live their lives provided these choices don’t endanger the public at large or detract from any punishment involved. Clearly giving offenders, who will never be released from prison, the right to choose when to die will not endanger us. The only question that remains to be answered is whether giving such offenders the right to choose to die detracts from their punishment? The answer to this question is not clear cut. Let it be accepted our sense of common humanity, our sense of seeing others as persons rather than monsters, does not permit us the option of cruel punishments such as simply putting an offender in a cell and metaphorically throwing away the key. It follows we must give offenders some quality of life including limited choices about how to live their lives. Provided prisoners must have some quality of life and enjoy certain limited choices it seems to me giving offenders the right to choose to die does not detract from their punishment. In the light of the above it might be concluded because the terminally ill have a right to choose when to die then so do offenders who will never be released from prison. 

I will now consider four objections to the above conclusion. This Blog is concerned with applied philosophy and someone might object it is pointless to give rights to people who will never use them. In particular it might be argued even if such offenders are the given the right to end their lives that in practice they will never avail themselves of this right. However there is some empirical evidence to show that at least some such offenders desire to die. Consider for instance consider the cases of Fred West the Gloucestershire builder who murdered 12 people and Harold Shipman who had 215 murders ascribed to him who both committed suicide in prison. Further evidence is provided by the need to place some prisoners on suicide watch.

Our objector might advance a second objection. He might point out there are a lot of mentally unstable people in prison and invariably among these people there will be some offenders who will never be released. Some of this mental instability may be due to depression. He then might argue if we give these offenders the right to choose to die rather than face life long imprisonment that some of those who exercise this option will not have made an autonomous choice due to depression. Indeed he might still further argue that if this option is made available some of offenders might feel they are being pressurised into taking it. If offenders are simply offered this choice then I believe this is a perfectly good argument. However I believe the argument loses its validity provided some safeguards are introduced. These safeguards must ensure that only offenders capable of making an autonomous decision are offered this choice. Our objector might now introduce a counter argument. He might argue these safeguards would involve counselling the offenders to ensure they can make an autonomous decision and that counselling is expensive. He might then proceed by arguing such offenders do not merit such expense and hence conclude these safeguards should not be introduced. In reply to this counter argument I would make two points. Firstly I would point out keeping people in prison for a lifetime is very expensive. If an offender who will never be released chooses to die his choice saves the taxpayer a great deal of money even if this choice includes expensive counselling. Secondly and I believe more importantly I would question whether these safeguards really need to include expensive counselling. For I would suggest all that is needed for a decision to be autonomous is that it is wholehearted and un-ambivalent. I would suggest if an offender expresses a constant un-ambivalent desire to die over a period of a few months, then his decision is an autonomous one and as such ought to be respected. Our objector might respond that my suggestion means a severally depressed offender might choose to die. In reply I would simply point out being depressed may well be the natural state of affairs for such an offender and suggest his depression does not preclude him from making an autonomous decision to die.

I have argued the reason why we should allow such offenders the right to die is based on their autonomy. I further argued that the basis of autonomy is seeing others as basically the same sort of persons as ourselves. However our objector might mount a third objection. He might argue if we allow these offenders the right to die then we are sending them a message that even at this basic level they are not the same sort of persons as ourselves. He might point out if we saw someone about to jump from a high building we would try and talk him down rather than simply pass by or tell him it’s his choice whether to jump or not. Indeed our objector might accuse us of double standards. The same objection might also be made if we allow terminally ill patients to choose when to die. I would reject his objection by arguing the difference in our attitudes is due to a difference in circumstances rather than a supposed difference in persons. An offender may be depressed and as I have suggested this depression may be both natural and normal considering his circumstances. His depression may be natural because his ongoing circumstances will not significantly change.  Someone about to jump from a building may also be depressed but his depression may not be natural and certainly need not be ongoing as his circumstances might change. These different circumstances mean the offender’s decision, subject to certain safeguards, is an autonomous one whilst the decision of the man about to jump from a high building may not be. An autonomous decision is a constant un-ambivalent decision. If we permit an offender to die we can be fairly certain his decision is an autonomous one because the prison authorities would require that he had expressed an un-ambivalent desire to die over a period of some months. The same requirement cannot be applied to someone about to commit suicide by jumping from a high building.

Our objector might now point out, offenders do not have a handy means of suicide readily available, and that if my conclusion is accepted the means of suicide would have to be approved of and brought into prison by the relevant authorities under strictly controlled conditions. I accept the objectors point. He might then use this point to raise a fourth objection to my conclusion. He might argue accepting my conclusion reintroduces capital punishment by the back door and once again accuse me of double standards due to my stated opposition to capital punishment. In reply I would reject his argument by firstly pointing out capital punishment is imposed and not simply optional. Secondly I am not proposing that the prison authorities kill these offenders even with the offender’s approval. I am proposing that the prison authorities make the means of suicide available to such offenders in controlled circumstances. These circumstances might be the much the same as those in the Dignitas clinic in Geneva. The person committing suicide in this clinic takes an anti sickness drug followed half an hour later by the overdose that kills him. In similar circumstances the offender would not have the drugs administered to him but would have them provided for him to take them himself. The fact that these drugs would be self administered would be an important additional safeguard of the offender’ autonomy, for often someone may believe he should take some course of action but when he tries to implement this action finds he cannot. For as Frankfurt points out someone’s decision only show what he intends to will and that when he attempts implement his decision he might be surprised to find out his decision does not in practice represent his will (3). In the above circumstances it would be hard to characterise the assisted suicide of an offender as capital punishment. Recently in Belgium Frank Van Den Bleeken who is serving a life sentence for rape and murder has been allowed by a court to undergo euthanasia, see bioedge . However I agree with Frankfurt that someone’s decision only show what he intends to will and in practice his decision may not always truly represent his will. For this reason whilst I believe offenders should have the right to commit suicide I would be doubtful whether this right should extend to euthanasia. 

In conclusion it appears all my imagined objector’s objections remain unconvincing. Finally I wish to consider an additional reason to that of the offender’s limited autonomy to support my position. Harrosh suggests if a prisoner on death row chooses a method of execution involving greater suffering that his choice can be a form of atonement. I would extend Harrosh’s suggestion further by suggesting if an offender chooses to die this might also be a form of atonement. In practice I don’t believe the need for atonement would be a major factor in decision making of most these offenders’ decisions to die. Rather it would be a desire to escape from life long imprisonment. None the less I believe it might be a factor in some such cases. Such atonement should be accepted not only because it is an expression of an offender’s limited autonomy but also because the acceptance of responsibility by the offender for his offences is something which may benefit the victim or victim’s relatives.

 

1. Harry Frankfurt, 1999, Necessity, Volition, and Love, Cambridge University Press, page 163.
2. Christine Korsgaard,  2009, Self-Constitution, Oxford University Press.
3. Frankfurt 1988, The Importance of What We Care About, Cambridge University Press, page 84