A Coercion Paradox
What happens when we know a patient has been coerced?
Note: If you’re in Portland, Oregon this week, let’s meet up!
Informed consent is an ethical and legal requirement for health care when a patient has decision-making capacity. There are some narrow exceptions to this, such as when life and limb are at risk and there isn’t time to get informed consent. But even then, if the patient says “don’t touch me”, then the healthcare provider shouldn’t touch them. Failing to get informed consent is ethically wrong and constitutes battery.
As I’ve described in another post, the conditions for informed consent involve decision-making capacity, information, understanding, and voluntariness. There are difficulties specifying and determining each of them, but voluntariness is the most troublesome. As I showed using the case of money, figuring out what separates a voluntary decision from an involuntary one can be tricky, and it’s hard to identify the threshold whereby enough coercion, manipulation, pressure, and so on make consent no longer valid. For instance, we pressure our loved ones all the time—about where to go for dinner, which movie to watch, whether to get a puppy—but we don’t think that pressure of this form on its own invalidates consent. We need, in other words, to sort out when voluntariness is thwarted and when, as Daniel Brudney puts it, it’s just families being families.
A different question is what ought to happen when we know that coercion has occurred. Specify coercion however you like; what’s the right thing to do when it has happened? Obviously, we should figure out the patient’s authentic preferences, then act on those, but this can be difficult. Imagine a patient who has been indoctrinated in a way that affects an important medical decision, and suppose that we know that the indoctrination is so severe that the patient has never had the chance to form their own independent, authentic preferences relevant for the choice.
One thing we might do is give them more time and hope that they’re able to form preferences of their own, but this could take years of therapy and is therefore unworkable for current decision making. The remaining options appear to be as follows. First, the provider could decide that, since voluntary consent is impossible in this situation, and since the patient otherwise has decision-making capacity, the provider ought not to perform any of the medically indicated interventions.
This is bad. After all, the proposed intervention is medically indicated, and involuntariness shouldn’t block the possibility of any treatment. That would add the tragedy of blocking off healthcare access to the tragedy of indoctrination.
Another option is to use a substitute decision-maker. If a patient’s indoctrination means they’re unable to consent voluntarily, then perhaps they lack decision-making capacity. When a patient lacks capacity, the best approach is to have a substitute decision-maker decide for them. SDMs are supposed to make decisions based on the patient’s values, if known, and, if unknown, to decide in their best interest. In this case, we know the patient’s values, but they’re inauthentic. Therefore, it seems that the best interest standard is most appropriate.
There’s a tragedy here too. The indoctrination affected voluntariness—affected the patient’s autonomy—so not allowing the patient to make their own choices now similarly fails to respect their autonomy. Though, perhaps, the point is that they lack autonomy to promote.
The indoctrination case shows how coercion permeates through the decision-making process. Other cases that aren’t as global as indoctrination have a similar effect. Suppose a patient’s partner says, “If you don’t get this treatment, I’m taking the kids and leaving you.” I’m going to stipulate that this is coercion and that it can invalidate consent; if you don’t agree, choose another case.
Suppose the patient believes that the partner’s threat is sincere. Now what? It seems that, given the coercion, voluntary consent is impossible, though notice that, unlike the indoctrination case, this coercion is decision-specific. The patient can still make other medical decisions that don’t involve the partner’s threat.
What should happen? Notice that, unlike in the indoctrination case, the patient might be able to report their genuine preference, though we (and they) might not be able to distinguish the authentic from coercion-affected preferences. But voluntariness is affected either way. Even if the patient says “I promise that this is what I really want”, the coercion invalidates consent. It would be great if we could get the partner to rescind the threat—e.g., “you shouldn’t go around threatening your partner like this”—but the odds of success are low. (I speak from experience: I had a clinical ethics consult of this sort, and one of the staff said, “You’re the ethicist. Can’t you tell them that what they’re doing is wrong?”)
I don’t have a good answer here. And, to my knowledge, there isn’t much about this in the academic literature. There also isn’t much in the bioethics literature on specifying when coercion invalidates consent to treatment, so there are some big gaps.
Using a substitute decision-maker is possible, but that would represent a big deviation from standard practice, since the patient can still have capacity, information, and understanding. It would be weird to bring in an SDM in such a case (though weird things can be correct).
What standard should the SDM use? Even though the patient can’t make a voluntary choice, it isn’t obvious that the SDM should decide without considering that one option will lead to the dissolution of the patient’s marriage. Isn’t that a relevant factor that a best-interest account should consider? But then doesn’t that undercut the point of using the SDM, since the patient is capable of deciding based on that information?
There’s a paradox here. The partner’s threat coerces the patient, making voluntary choice impossible. But the threat is a real threat that, it seems, is relevant to the decision. Saying to the patient or the SDM, “Don’t worry about the threat; put it out of your mind while making this decision” doesn’t strike me as the right way to go. But if the threat makes voluntariness impossible for the patient, accounting for the threat also makes voluntariness impossible for the SDM, so then we might as well let the patient decide, but the patient is coerced and can’t give informed consent.
I’m not sure how to get out of this.