by Craig Klugman, Ph.D.
This week I was teaching autonomy and paternalism to my Introduction to Bioethics class. We talked about how one of the founding myths of bioethics is that we saved patients from paternalistic medicine by forcing a turn to autonomy: Instead of being objects on which doctors did medicine, we became subjects with whom doctors worked to heal. My students felt this was all fine and good in theory, but in practice it seemed to them that healers and patients are actually losing freedom. Our conversation led me to wonder if we have entered the age of neopaternalism.
I say neo, because paternalism was about doctors making decisions for patients, but in the new model, governments and corporations make decisions for both patients and their health care providers. In paternalism, doctors held that patients could not know enough or understand enough about medicine to be entrusted with making their decisions. In neopaternalism, the government holds that health care providers cannot be trusted to make decisions for their patients and companies hold that doctors cannot make financially-sound decisions for themselves or their patients.
Consider the War on Drugs Part Dieux that we have recently begun. According to the Washington Post, the DEA arrested many prescribers, pharmacists, and people “who handle controlled substances.” This recent action is part of an effort to crackdown on the illegal distribution of opioids. A new CMS proposal would limit doctors from prescribing more than 90 mg of morphine per day to Medicare patients. Such limits are problematic because patients who experience chronic pain can require higher doses than that to control their physical condition. Others question whether this regulation is a takeover of medical decision-making by the federal government: “Dozens of other academics, doctors, and editors of pain journals have signed on to a letter claiming the proposed rule constitutes overreach by CMS into medical treatment and would carry serious consequences for the 1.6 million Medicare beneficiaries who .” In other words, this action may subject some patients to a lifetime of untreated pain, unless they go the illegal route. Apparently, legislators and federal administrators with no medical background feel that they are better at understanding and helping patients than the patient’s own doctors.
In another example, you may have noticed many sex and health related resources disappearing from the internet: Craigslist recently removed its personal ads. For the years it existed, this space that has been credited with saving the health and lives of many sex workers. Not only are personal ads being stripped from websites, but also information on safe sex, screening tools, and online communities of a sexual nature. Reddit has removed all of its communities relating to sex. Why? Apparently, people cannot be trusted in their own sex lives or in seeking education about their sexual health. FOSTA/SESTA is a bill just passed by the Senate and headed to the President’s desk that would “subject website hosts to more criminal and civil liability for the content that third parties publish on their platforms.” The idea behind the bill is to crack down on sex trafficking, which most everyone agrees is a bad thing. However, opponents claim the bill conflates sex trafficking with consensual sex and sex workers. The bill is also retroactive, so if a former sex worker had written online about her experiences in the trade in the past, she could be banned from the website now and have her previous words wiped. This is nothing but censorship about sex.
In a third example, a slew of states are passing draconian abortion obstructionist laws because they know better than women and their doctors. Mississippi just passed a 15-week ban, which was almost immediately stayed by a court pending a lawsuit against the law. Fifteen weeks gestation is before viability, the currently federal standard, and even before a fetus has brain waves and has been scientifically shown to have a reaction to pain. Ohio, Indiana, North Dakota, and Louisiana have passed laws banning abortion if it is sought solely because the embryo or fetus has been diagnosed with Down’s Syndrome. Utah is considered such a bill. An even more restrictive bill introduced in Ohio would ban all abortions, even for cases of rape or incest. Let’s not forget that many states require physicians to read prepared statements to women seeking an abortion. The statements contain disproven myths and unscientific information about the effects of an abortion. Legislators are seeking to reduce abortion not through effective and proven public health measures like sex education and making contraception available, but rather by forcing doctors to lie, creating restrictions on the standards clinics must meet as well as limiting the diagnosed conditions for which they can be permitted.
A fourth example concerns the medical use of marijuana. While there is not a lot of research on the use of this plant for medicine, there are scores of case descriptions of its benefits. The few studies that have come out have shown that opioid prescriptions drop in states with legal marijuana, which seems to be effective in treating pain. In states that permit its use, the discussion and decision whether to medically use marijuana is between a physician and a patient. Under Eric Holder, Attorney General under President Obama, the federal government did not interfere with state decisions on marijuana policy. However, the current Attorney General, Jeff Sessions, is re-igniting the war on marijuana and has claimed that the federal government will crack down on the plant’s use, no matter what states and health care providers say.
In a cost-saving move, insurers are increasingly restricting the choices and actions of physicians. Although not a new tactic, insurers often require prior approval for treatment options which means another physician, hired by the insurer and perhaps not actively practicing, takes a second look at the recommended treatment. Other insurers require patients to go through several therapies before getting a new or expensive one. These step therapies require patients to go through several cheaper drugs even if the patient had previously tried (and perhaps failed to find effect) from the medication. More and more companies are increasing the list of drugs excluded from coverage in their drug plans. Insurers and health care systems second-guess physician decisions not for medical oversight, but in attempts to limit the amount of money they pay out—an attempt to maximize profits.
Finally, physicians are losing control over their practice. As outlined in The New York Times in the fall, over the last decades, physicians no longer control hospitals or medical organizations. Instead, a bureaucratic class has arisen that controls how doctors spend their time, how long they spend with each patient, even what drugs they are permitted to prescribe. This lack of professional autonomy is part of the epidemic of physician burnout, depression and suicide that is affecting healers.
Neopaternalism is motivated by an attempt to put forward a political, economical or ideological perspective. Old-time paternalism focused on the idea of the physician believing they knew what was best for the patient. Thus, the concern was a best interest standard and that patients, lacking a medical education and practice experience would not be able to understand what that was. The goal was to provide care for the patient. Neopaternalism is focused on having people conform to a political, economic, or ideological agenda. The patient’s interest (or even the physician’s) is not a factor except insofar as they help prove a pre-existing notion (e.g. of how people should behave) or meet an external agenda (e.g. maximize profit). In neopaternalism, the patient and the physician are simply widgets rather than independent-thinking actors with desires and needs.
The turn toward neo-paternalism is one in which the government and corporations make, or at least curtail, medical decision-making. In neopaternalism, not only patients are viewed as untrustworthy to understand their health conditions and make choices, but neither are their health care providers.