Soft Paternalism II
Michael A. Gillette, Ph.D.

In previous newsletters I have presented the soft-paternalist approach to making choices for people who are incapable of making their own decisions. I explained that this approach is based on the idea that what is good for one person may not be good for another. If one person must decide for another regarding treatment, then she should consider what the subject of interference would want if he could decide for himself.

This structure of reasoning has been used by the courts even to the extent that homeless individuals have been allowed to leave hospitals against medical advice and die of complications stemming from untreated frostbitten and gangrenous feet. In such cases the courts have asked what values individual patients have, and whether refusal of treatment for frostbite and gangrene is consistent with their values. So long as choices are consistent with values, it is reasoned, no moral wrong is done by allowing people the freedom to govern their own lives. This way of thinking has some limitations.

Last month I presented the following problem case for the theory of soft paternalism: Mr. C is a 15 year old resident of a state mental retardation facility who suffers from serious genetic anomaly and has a history of poor nutritional status, reflux disorder and aspiration pneumonia... a gastroenterology consult, recommended that Mr. C be taken off all oral feedings. Mr. and Mrs. C (Mr. C's parents and legal guardians)... refuse to allow a feeding tube to be placed... The nutritionist involved is convinced that Mr. C will improve with better nutrition. Does the Training Center have the right to force treatment with a feeding tube over parental objections?

As I argued two months ago, this case is not a good candidate for the application of soft-paternalistic principles precisely because the patient involved does not have any values relevant to the choice at hand. Since Mr. C has never been able to formulate any desires whatsoever regarding tube-feedings, there is no way that anyone can base a choice on what Mr. C would want if only he could consider the situation carefully. In this situation, soft paternalism is inapplicable.

The failure of soft paternalism in this situation may not be particularly troubling. It is possible to argue that when a person has no values whatsoever regarding a particular choice, there is no way to either honor his values or to contradict them. Since Mr. C cannot be frustrated in his desires, there is no need to worry about respecting individual autonomy-- which is the basis of soft paternalism-- so another method of choice may morally be applied. The most common fall- back position is then to consider the patient's "best interests".

Those of us who have been following this argument carefully will immediately object by reminding us that the soft paternalist project was motivated out of a recognition that 'best interest' cannot be defined objectively. How, then, can a best interest approach be made with regard to Mr. C.

The answer here is claim that in ethics, as well as in every other human endeavor, it is often necessary to avoid greater evils rather than achieve optimal outcomes. Mr. C either has no values relevant to tube feedings, or he is incapable of expressing his values. If he has no values, then we cannot frustrate his values. If he has values that cannot be communicated, we would stand the best chance of honoring those values by assuming them to be similar to the most prevalent values held by human beings in general. The result: Do what an average person would most probably want done. This is likely to do no harm, and might possibly do some good. It isn't a perfect answer, but it is based on a best estimate of what will serve Mr. C's interests.

Additionally, we must ask whether Mr. C is capable of experiencing pleasurable stimuli? Is he in pain? How can we best serve the interests that Mr. C already has?

The ability to come to a morally responsible decision in the case of Mr. C does not end our discussion, however. The mental health institute is a source for an even more troubling counter-example to all that has been argued in this and previous newsletters. Consider the following case:

Ms. D is a 40 year old schizophrenic woman who has been treated over the years with various psychotropic medications. Her condition has deteriorated to the point where she experiences auditory hallucinations on a regular basis. Ms. D's delusional experiences are remarkably consistent, and seem to tell Ms. D that she ought not to accept the medication being offered by her physician. In fact, Ms. D is convinced that she is the last psychologically healthy woman left on the planet, and that her avoidance of medication is necessary for the salvation of the human species.

Ms. D's case is particularly troubling because none of the approaches to decision making discussed thus far will help in this case. It seems inappropriate to honor Ms. D's wishes, since they are based on mental illness. Nevertheless, I cannot ignore soft paternalism, because Ms. D does have relevant values (unlike Mr. C in the last case). I feel trapped!! I must either ignore desires that are based on clearly espoused values, or I must allow Ms. D to go without treatment.

If I take the first route, then what stops us from trampling any person's choices when they seem to be based on unreasonable, uncommon or seemingly false beliefs? What protects the religious minority from governmental intervention "for their own good"? If I take the second route, then what of Ms. D who desperately needs care? The case of Ms. D most definitely requires further discussion.