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Abstract
A central tenet of medical ethics holds that it is permissible to perform a medical intervention on a competent individual only if that individual has given informed consent to the intervention. Yet it occasionally seems morally permissible to carry out non-consensual medical interventions on competent individuals for the purpose of infectious disease control (IDC). We describe two different moral frameworks that have been invoked in support of non-consensual IDC interventions and identify five desiderata that might be used to guide assessments of the moral permissibility of such interventions on either kind of fundamental justification. We then consider what these desiderata imply for the justifiability of carrying out non-consensual medical interventions that are designed to facilitate rehabilitation amongst serious criminal offenders. We argue that these desiderata suggest that a plausible case can be made in favor of such interventions.
Notes
[The authors are grateful for the support of the Wellcome Trust and the Uehiro Foundation on Ethics and Education. They would also like to thank audiences at the St. Cross College, University of Oxford, and the University of Kyoto for feedback on earlier versions of this article.]
[Disclosure Statement: No potential conflict of interest was reported by the authors.]
1 Notice that it might be possible to prevent recidivism in ways that do not involve the rehabilitation of the offender. For instance, incapacitating offenders by incarcerating them can be understood as an anti-recidivist measure. Since it seems that neuro-interventions that serve to incapacitate an offender would face additional moral problems in comparison to rehabilitative neuro-correctives, we shall consider in this article only those interventions that might be used to prevent recidivism by facilitating rehabilitation.
2 See Eley et al., “Drug Treatment and Testing Orders”; Hough et al., “Impact of Drug Treatment.”
3 See Thibaut et al., “WFSBP Guidelines.”
4 See Crockett et al., “Serotonin Modulates Behavioral Reactions”; Crockett et al., “Serotonin Selectively Influences Moral Judgment”; Crockett et al., “Serotonin Modulates Striatal Responses.”
5 See Lu, Wang, and Kosten, “Stereotactic Neurosurgical Treatment.”
6 See Young et al., “Disruption of Right Temporoparietal Junction.”
7 See Sitaram, Caria, and Birbaumer, “Hemodynamic Brain-Computer Interfaces.”
8 See T. Douglas, “Criminal Rehabilitation”; Shaw, “Direct Brain Interventions”; Ryberg, “Punishment.”
9 See Bomann-Larsen, “Voluntary Rehabilitation?” For relevant arguments that are specific to the context of chemical castration, see Rosati, “Study of Internal Punishment”; McMillan, “Kindest Cut?”; Vanderzyl, “Castration as an Alternative.”
10 Derk Pereboom has discussed the possibility of providing a non-retributive justification of incarceration that is compatible with free-will skepticism by appealing to similarities between the justification of quarantine and incarcerating criminal offenders on the assumption that they do not deserve to be punished. See Pereboom, Free Will, Agency, and Meaning; Pereboom,“Free Will Skepticism”; and Pereboom, Living without Free Will. More recently, Gregg Caruso, in “Free Will Skepticism,” has developed Pereboom’s model within a broader justificatory framework of public health ethics. We are sympathetic to many of the claims made in these works, particularly Caruso’s claim that we should give greater priority to the prevention of recidivism in criminal justice. However, unlike Pereboom and Caruso, our interest in this article is not to establish a non-retributive justification of incarceration but rather to investigate the extent to which the moral justification of non-consensual medical interventions in public health might be used to justify the use of comparable non-consensual interventions in criminal justice. Furthermore, we consider alternative accounts of the justification of non-consensual public health interventions to Caruso’s. In fact, the arguments we make here may be understood to extend Caruso’s conclusions regarding the non-retributive justification of incarceration to the use of neuro-correctives as anti-recidivist measures.
11 Feinberg, Moral Limits of Criminal Law, vol. 3, 190.
12 See ibid., 191.
13 See Beauchamp and Childress, Principles of Biomedical Ethics; Faden and Beauchamp, History and Theory; Crisp, “Medical Negligence”; Meisel, Roth, and Lidz, “Toward a Model.”
14 See Ehreth, “Global Value of Vaccination”; Gostin, Public Health Law, 376.
15 See Anderson and May, “Immunisation and Herd Immunity”; Anderson and May, “Vaccination and Herd Immunity.”
16 In contrast to attaching costs to vaccine refusal, Australia offers financial incentives to citizens to get vaccinated. See Australian Government, “Immunisation Requirements.” For comprehensive reviews of vaccination policies, see Salmon et al., “Compulsory Vaccination”; El Almin et al., “Ethical Issues.”
17 See Center for Disease Control, “SchoolVaxView.”
18 See Nozick, “Coercion”; Feinberg, Moral Limits of Criminal Law, vol. 3, 190; Zimmerman, “Coercive Wage Offers”; Beauchamp and Childress, Principles of Biomedical Ethics.
19 Reynolds v. McNichols, 488 (10th Cir. 1973). State of Delaware, “Title 16,” 524–5; UK Health and Social Care Act 2008.
20 See Gostin, Public Health Law, 415; Iseman, “Treatment of Multidrug-Resistant Tuberculosis.”
21 See Gensini, “Concept of Quarantine in History.”
22 Wilkinson, “Contagious Disease and Self-Defence,” 343.
23 Gostin, Public Health Law, 21.
24 Ibid.
25 Other prioritarians claim only that situation of the worst-off should be given greater weight than the that of others in ranking alternative possible distributions.
26 See Doggett, “Recent Work.”
27 Wilkinson, “Contagious Disease and Self-Defence.”
28 There is, of course, much disagreement about the requirements of distributive fairness, but, on many accounts, harms to worse-off individuals detract more from distributive fairness than harms to better-off individuals.
29 Schabas, “Severe Acute Respiratory Syndrome.” Note that the marginal effectiveness should be considered; that is, the effectiveness the intervention will add to other means of preventing harm that will be pursued regardless. Suppose, for example, that either a medical intervention or an education program would alone lower the risk of harm from infectious disease compared to a baseline in which neither intervention were pursued. Suppose by contrast that the education program will be pursued regardless, and that the medical intervention adds nothing to the effectiveness of the education program—that is, that the risk of harm is not reduced by adding the medical intervention to the education program. In this context, the effectiveness of the medical intervention should be regarded as zero.
30 See Gostin, Public Health Law, 64–8.
31 See ibid., 68. Relatedly, the literature on self-defense frequently invokes a condition of minimal force; permissible acts of self-defense must involve the use of only the minimum force that is necessary to avert the threat. This application can be regarded as one gloss on the least restrictive alternative desideratum. See Wilkinson, “Contagious Disease and Self-Defence.”
32 See Gostin, Public Health Law, 68.
33 McMahan, Ethics of Killing, 412.
34 Uniacke, “Proportionality and Self-Defense,” 258. Although Uniacke herself argues against the equivalent harm view, she cites both Rodin, War and Self-Defense, 48–9, and Leverick, Killing in Self-Defence, 153, as advocating it.
35 McMahan suggests that moral responsibility and culpability can be distinguished in the following way: an agent’s degree of culpability is a function of a number of variables, including, inter alia, whether the agent poses the wrongful threat intentionally, recklessly, or negligently; whether the agent has an excuse and how strong that excuse is; and the magnitude of the threatened harm. However, even if the agent is fully excused for posing a threat of harm, he may still be liable to defensive harm if he bears some degree of moral responsibility for posing a threat of harm. For instance, McMahan suggests that agents who pose a threat of harm because they are acting under an irresistible influence may still be morally responsible for their act even if they are not culpable. This moral responsibility is sufficient to render the agent liable to some degree of defensive harm, on his view, although the proportionality restriction on that defensive harm will be more stringent by virtue of the fact that the agent is not culpable. See McMahan, Killing in War, 159–73.
36 See Uniacke, “Proportionality and Self-Defense,” 261.
37 See McMahan, “Self-Defense and Culpability,” 766; McMahan, Ethics of Killing, 401–11; McMahan, Killing in War, chap. 4.
38 See McMahan, Ethics of Killing, 412; McMahan, Killing in War, chap.4; McMahan, “Proportionate Defense.”
39 It is merely an indicator, rather than a determinant, because the intervention may also cause or prevent other harms that would need to be included in the consequentialist calculus, and because deontological side constraints may rule the intervention out even if it satisfies this desideratum.
40 Indeed, a consequentialist theory of this kind could hold that harms to culpable agents contribute positively to the overall good. See, generally, Miller, Social Justice for an influential desert-based theory of social justice. See Rawls, Theory of Justice for criticisms of desert-based theories.
41 McMahan draws a similar distinction in his discussion of the difference between proportionality in punishment and self-defense. See McMahan, “Proportionate Defense,” 22–3.
42 See Bentham, Theory of Legislation; Cullen, Reaffirming Rehabilitation; Carlen, “Crime, Inequality and Sentencing.”
43 See Hampton, “Moral Education Theory of Punishment”; Morris, “Paternalistic Theory of Punishment.”
44 See Golash, Case against Punishment, chap. 5.
45 Notice that even if one holds that criminal justice should not at all aim at rehabilitation, our argument will still have interesting implications. That public health ethics justifications for non-consensual interventions seem also to work for neuro-correctives suggests that there is a prima facie case for using neuro-correctives. Thus, even if one thinks that the latter could not permissibly be incorporated within criminal justice systems, our arguments suggest that there may be reasons to use neuro-correctives outside criminal justice; for instance, as part of some kind of separate public protection system.
46 See U.K. Ministry of Justice and Home Office, “2010 to 2015 Government Policy.”
47 See K. S. Douglas et al., “Assessing Violence Risk”; Fazel et al., “Use of Risk Assessment Instruments”; Harrison, “Dangerous Offenders.”
48 See K. S. Douglas et al., “Assessing Violence Risk” for a discussion.
49 A further higher-order problem with actuarial instruments is the number of difficulties in measuring their predictive accuracy. See Rice and Harris, “Violent Recidivism.”
50 See Offley, “Influenza Vaccination”; Doshi, “Influenza.”
51 Lösel and Schmucker, “Effectiveness of Treatment.” It should be acknowledged that these numbers refer to a sample that includes offenders who have received either chemical or physical castration.
52 See Gostin, Public Health Law, 68.
53 DOT has commonly been used for patients suffering from tuberculosis, and it is also occasionally used in the treatment of HIV. See Bayer and Wilkinson, “Directly Observed Therapy”; Mitty et al., “Directly Observed Therapy.”
54 It might be argued that we cannot legitimately appeal to a comparison between incarceration and neuro-correctives. See Barn, “Can Medical Interventions Serve?” For example, it might be argued that the two interventions are intended to serve different aims. On many accounts, the justification for incarcerating criminal offenders often appeals to retributive or deterrent purposes, rather than the prevention of individual recidivism. However, as we claimed above, the prevention of recidivism plausibly plays some role in the justification of incarceration. This is most clearly so in cases of civil commitment. In such cases, offenders have already served a sentence that has been deemed sufficient to serve the goals of deterrence and retributivism, but they nonetheless remain incarcerated on the basis that criminal justice authorities believe that there is a significant risk that they would reoffend if released. Note also that the least restrictive kind of incarceration compatible with retaining an anti-recidivist effect would plausibly be far less restrictive than prevailing kinds of incarceration, which arguably involve harms and rights violations that are gratuitous from the point of view of preventing recidivism, and indeed may serve to encourage it. It might be objected at this point that taking incarceration as the relevant comparator is illicit, since criminal justice systems frequently have at their disposal less restrictive means of preventing recidivism, such as psychosocial rehabilitation programs. We will respond to this objection in our discussion below by appealing to the importance of the effectiveness desideratum and its relation to the least restrictive alternative desideratum.
55 See T. Douglas, “Criminal Rehabilitation.”
56 Ibid.
57 Farah, “Emerging Ethical Issues,” 1126.
58 See Bublitz and Merkel, “Crimes Against Minds.”
59 See Taylor, Practical Autonomy and Bioethics, chap. 1.
60 See Cullen, Jonson, and Nagin, “Prisons Do Not Reduce Recidivism”; Chen and Shapiro, “Harsher Prison Conditions”; Smith, Goggin, and Gendreau, “Effects of Prison Sentences.”
61 See Ho and Ross, “Cognitive Behaviour Therapy”; Dennis et al., “Psychological Interventions for Adults.”
62 However, there are other contexts in which interventions that seem comparably restrictive to neuro-correctives are used non-consensually for the prevention of similarly problematic harms. For instance, many jurisdictions have mental health legislation that allows competent but mentally disordered individuals to be treated non-consensually with mind-altering drugs when they constitute a threat to themselves or others.