A Decisional Analysis of Consent

Salomon, C. Mathers, and A. Lopez. Geneva: World Health Organisation. Olsen, J. A., C. Donaldson, and J. Pereira. 2004. The insensitivity of willingness-to-pay to the size of the good: New evidence for health care. Journal of Economic Psychology 25: 445 460.

Ubel, P., E. Nord, M. Gold, P. Menzel, J. L. Pinto-Prades, and J. Richardson. 2000. Improving value measurement in costeffectiveness analysis. Medical Care 38: 892901. Copyright c Taylor & Francis Group, LLC DOI: 10.1080/15265160600686109

The Limited Utility of Utilitarian Analysis

Carson Strong, University of Tennessee College of Medicine

Jonathan Baron claims that approaches to bioethics decision making other than utilitarian decision analysis often cause harm that could be avoided (Baron 2006). Because of this problem, he makes the following suggestion:
Applied bioethics could instead appeal to a coherent theory paired with an expertise in the knowledge of that theory. Namely, it could embrace utilitarian decision analysis. Utilitarianism holds that the best option is the one that does the most expected good (maximizes expected utility) (46).

Adopting this approach, according to Baron, would avoid the harms caused by applying the other, more commonly used methods of decision making. It is not clear whether Baron is claiming that we should abandon the more commonly used approaches in favor of utilitarian decision analysis or that we should sometimes replace them with decision analysis. If the former, then Baron seems to be advocating that we embrace utilitarianism in general. Given this ambiguity, it is necessary to distinguish two theses: 1) utilitarianism, or at least some form of it, is the most plausible ethical theory; and 2) even if utilitarianism is not the most plausible ethical theory, utilitarian analysis often is the preferred approach for resolving bioethics issues and cases. In his article, Baron seems to be advocating one or the other of these theses. I shall argue that both are mistaken.
WHY UTILITARIANISM IS MISGUIDED

My argument that utilitarianism is not a plausible ethical theory rests on several main points. First, there are persuasive considerations supporting the view that there is a common morality. If we were to drop the adjective common and ask whether there is such a thing as morality, virtually everyone would acknowledge that there is such a thing. Many would maintain that there are in fact numerous distinct moralities, arising from different cultures, times and value commitments. If we accept the idea that

there are moralities, then the question arises as to whether there is a core of moral commitments that is found in all of the distinguishable moralities. This question can be posed at various levels of generality. One might ask, for example, whether there is a common morality within all the moralities of contemporary pluralistic American society. One might ask whether there is a common morality across all contemporary cultures. Or one could ask whether there is a common morality across all cultures and times. Some moral philosophers have dealt with the latter question, in part because there is theoretical interest in considering it (Gert 1973, 2005; Beauchamp and Childress 2001). For present purposes, it is sufcient to focus on contemporary American morality, in part because all of Barons examples are drawn from relatively recent events within the United States. Also, making the question specic in this way helps make the answer a bit more clear. Certain moral precepts are shared widely enough to support the view that there is a common morality within the United States. Despite their diversity, it seems that virtually all Americans who sincerely claim to have a morality and who understand the concept of morality, accept certain moral principles and rules. These include, among others, rules against lying, breaking promises, injuring persons, and depriving persons of their freedom. Although disagreements are common concerning such matters as how to apply moral principles in particular cases and determining who counts as a person, there also appears to be nearly universal agreement concerning this core of general principles and rules as well as moral intuitions concerning certain paradigm cases. Second, utilitarianism yields conclusions that differ from those of common morality. One example, widely recognized, is that utilitarianism permits the causing of harm to an innocent victim when doing so would likely cause benet to others greater than the harm to the victim. Common morality, by contrast, does not accept this precept. Utilitarians have attempted to correct this problem by arguing

May/June 2006, Volume 6, Number 3

ajob 67

The American Journal of Bioethics

that rules protecting individuals from such harms would maximize utility, and that utilitarianism therefore does not condone such practices. The problem with this attempted defense is that it is not at all obvious that the rules in question would result in more utility than the practices they would aim to prevent. Calculations of the longterm utility of rules across an entire society are exceedingly complex and difcult, as most utilitarians would acknowledge. Interestingly, this does not seem to prevent them from claiming that certain rules and not others would maximize utility. In other words, utilitarians do not provide convincing arguments for their assertions about these matters. Another difference is that utilitarianism makes it a matter of duty to maximize utility. In doing so, it eliminates the distinction between duty and supererogation. Common morality, in contrast, does not make it a requirement that we strive endlessly to maximize utility. Utilitarianism also fails to recognize that common morality is composed of irreducibly heterogenous components. That we should avoid harming others, that we should respect autonomous decisions, and that we should be fair in our dealings with others are distinct ethical concepts. They reect different aspects of common morality. To try to convert each to units of utility is to attempt to impose on them a commensurability they do not have. For reasons such as these, utilitarianism does not accurately describe common morality. That is why it is not an acceptable ethical theory. It is, in fact, an alternative to common morality (Gert 1973, 8). Perhaps some utilitarians recognize this but regard utilitarianism as an improvement over common morality. The problem with ethical theories that differ from common morality, obviously, is that they differ from what is at the core of morality. Some utilitarians think that they can make utilitarianism yield the same answers as common morality by converting the disparate values such as autonomy and justice into units of utility. But the incommensurability of these values means that once the utilitarian has begun the enterprise of converting them to utility, he or she has departed from common morality. So, the game is lost at the outset, regardless of the outcome of a particular utilitarian decision analysis . This leads into criticism of a specic part of Barons article. His analysis of the utility of consent (Baron 2006, 46 52) reects a thoroughly utilitarian perspective, which regards all ethical considerations as transformable into utility. Baron seems to imply that if obtaining consent causes disutility, then consent should not be obtained. If this is what he means, then his analysis misses the point of why autonomy is important. Respect for autonomy derives from a certain way of viewing persons, according to which they are ends in themselves, which means literally that they are capable of choosing their own ends, plans and values. This can be understood as an ontological view about what

persons are and an ethical view concerning how they should be treated because of what they are. These views have little to do with utility. Even if it could be shown that respecting autonomy in a given scenario caused disutility that would not necessarily be grounds for not respecting autonomy. It would only provide a consideration to be weighed against autonomy.
PRACTICAL PROBLEMS IN APPLYING UTILITARIAN ANALYSIS

Presumably, one could attempt utilitarian decision analysis from the perspective of either a rule or act utilitarian. A rule utilitarian would advocate adopting, as an approach for dealing with a case or policy issue, that rule or set of rules the implementation of which would maximize utility. The ethically correct resolution of a case would be obtained by applying the utility-maximizing rules to the case at hand. To implement this approach, one should identify the possible policies (i.e., rules) for handling the type of value conict in question and compare them in terms of expected utilities. The difculty, which becomes apparent when one attempts to apply this approach in the clinical setting, is that usually there are a number of alternative policies and we cannot reasonably predict which one would maximize expected utility. Similar problems arise for act utilitarianism. Rather than focusing on policies, the act utilitarian would attempt to choose the option in each case that maximizes utility. Again, the task of making reasonable predictions about utilities is beyond our reach. Of course, utilitarians are accustomed to this type of objection and have a standard reply to it. They acknowledge that often there is not as much information as one would like to have for evaluating the alternative policies and that estimates of expected utilities sometimes are not accurate. However, they point out, utilitarianism only requires that one do the best one can, that one try to obtain the most reasonable estimates of expected utilities given the available data. Utilitarians assure us that, even though data is limited, thoughtful deliberation and common sense will enable us to arrive at defensible estimates of expected utilities. Unfortunately, this reply seriously underestimates the difculty in calculating and comparing expected utilities in the clinical setting. The problem is that the psychosocial and medical features of typical clinical dilemmas are sufciently complex and uncertain that usually we do not even have enough data to construct defensible best guesses concerning which alternative policy would maximize expected utility. For cases that illustrate the problem, I refer the reader to other discussions of this topic (Strong 1988, 194198; 1997, 6668). The examples of decision analysis in Barons article, as he may well recognize, do not come close to dealing with complexity in sophisticated ways. There is a huge gap in

68 ajob

May/June 2006, Volume 6, Number 3

A Decisional Analysis of Consent

complexity between actual clinical cases and the simplied scenarios to which Baron applies decision analysis. For example, in his hypothetical research study (Baron 2006, 4652), he makes the assumption that each research subject knows in advance whether he or she will be beneted or harmed by participating in the study. In the real world, research subjects usually do not have such knowledge. But even a more sophisticated decision analysis would be stymied by the uncertainties that pervade clinical medicine. It is noteworthy that Baron does not provide a successful example of how utilitarian decision analysis can resolve an actual clinical ethical problem. In the Gelsinger example, Baron appears to argue that because the risk to adults would be greater than the risk to children, concerns about impediments to parental autonomy should be set aside. In the emergency research example, he seems to claim that the prospect of benecial research is sufcient to set aside concerns about consent. Although his analysis is somewhat sketchy, he appears to claim in each example that any degree of net utility that would arise from not obtaining consent, taking into account the utility of consent itself, is grounds for not respecting autonomy. As I have pointed out, this utilitarian perspective is at odds with common morality, overlooks the rationale for respecting autonomy,

and fails to recognize the incommensurability of autonomy and utility. For all the reasons discussed, utilitarian decision analysis has limited utility.

REFERENCES
Baron, J. 2006. A decision analysis of consent. American Journal of Bioethics 6(3): 4656. Beauchamp, T. L., and J. F. Childress. 2001. Principles of biomedical ethics, 5th edition. New York, NY: Oxford University Press. Gert, B. 1973. The moral rules: A new rational foundation for morality. New York, NY: Harper Torchbooks. Gert, B. 2005. Morality: Its nature and justification, revised edition. New York, NY: Oxford University Press. Strong, C. 1988. Justication in ethics. In Moral theory and moral judgments in medical ethics, ed. B. A. Brody, 193211. Dordrecht, Netherlands: Kluwer Academic Publishers. Strong, C. 1997. Ethics in reproductive and perinatal medicine: A new framework. New Haven, CT: Yale University Press. Copyright c Taylor & Francis Group, LLC DOI: 10.1080/15265160600686141

Consent: Moral Rightness Versus Non-Moral Goodness

Jacqueline L. Colby, University of Colorado

In A Decision Analysis of Consent, Baron proposes that clinicians and researchers base their advice on decision analysis, which is designed to identify the best outcomes, rather than on tradition or intuitive judgments, the use of which he nds sometimes causes avoidable harm (Baron 2006). Because many of the bad outcomes that decision analysis could prevent involve consent, he uses examples involving it to describe how his general approach works. He explains how decision analysis can help determine when and from who consent should be sought, so that the best outcomes will be realized. While I am sympathetic with Barons claim that actual clinical and research decision making in medicine needs to be improved and should be based neither on appeals to tradition nor on mere subjective intuition, the reason such decision making needs to be improved and the reason we should reject the decision methods he criticizes is not because they sometimes lead to avoidable harm. Rather, decision making based on an appeal to tradition alone, viz. Thats the way its always been done, should be rejected

because it is an instance of the fallacy of argumentum ad verecundiam, whereas decision making based on intuition alone should be rejected because it may be ad hoc, inconsistent across cases, and lack a sound theoretical basis. The central question then is how important it is in applied bioethics to employ a decision making method designed to identify the best outcome. Baron assumes it is of primary importance to have such a method, but this answer rests on embracing a controversial moral theory. Barons argument in support of decision analysis goes astray early in his article as he begins with a misleading characterization of utilitarianism. He describes utilitarianism only in terms of its providing an account of the good the best optionrather than correctly characterizing it as giving a distinctive account of morally right action. This initial mischaracterization of utilitarianism is crucial to the central argument of Barons article in two respects: 1) it provides the necessary basis for the similarity he nds between utilitarianism and decision theory, viz. that both dene the best option as the one that does the most expected good;

May/June 2006, Volume 6, Number 3

ajob 69