IN my other article , I discussed the paradigmatic use of generally valid rules to translate the moral principle into practice. As I argued, generally valid rules can help avoid the moral difficulties posed by case-by-case decision making. I also argued that the distinction between assisted suicide and withdrawal of medical treatment reflects the need for a generally valid rule to sort morally justified from morally unjustified patient deaths.
The second paradigmatic approach for the translation of principle to practice involves the effort to avoid perverse incentives, When implemented, rules, judgments, and other policies' take on a life of their own. They not only resolve prior dilemmas; they also influence subsequent behavior. Accordingly, when an ethical or legal policy is employed to restore justice to an existing situation, it might also have the undesirable effect of inviting future injustice in new situations. In other words, rules and judgments can create counterproductive incentives, incentives that will undermine either the moral principles on which the policy is based or other important moral principles. This kind of unintended consequence of a policy makes the policy less desirable as an option. Hence, it is important to fashion rules or judgments in a way that avoids perverse incentives.
Once ethical and legal policy takes into account the possibility of perverse incentives, rules or judgments may no longer reflect straightforward applications of their underlying moral principles. Rather, they may appear to be inconsistent with their underlying principles. This apparent inconsistency, however, is simply the consequence of giving consideration to the concern about perverse incentives. In other words, there is no inconsistency between principle and practice once the moral analysis takes into account the impact of practice on future behavior.
Suppose, for example, that a mentally ill patient plans to harm another person and discloses that intent to a psychiatrist. The psychiatrist does not warn the person at risk, and the patient kills the person. when the family of the dead person sues the psychiatrist for failing to warn of the risk of harm, a court might conclude that justice requires some imposition of liability on the psychiatrist. In one view, the psychiatrist acted wrongly in failing to warn of the risk of harm, and liability can both compensate the family of the dead person and deter other psychiatrists from repeating the wrongful action of the patient's psychiatrist.
However, a rule of liability might breed subsequent injustices. If it is clear that psychiatrists will no longer protect the confhdentiality of threatening patients, those patients might reject the optiOn or psychiatric treatment entirely. Without treatment, the patients may pose a greater risk to other persons. They will not have a psychiatrist to issue a warning, and, more importantly, they will not be receiving the treatment that might diminish their desire to harm other persons. The public may actually be better protected by a rule that requires psychiatrists to preserve the confidentiality of their patients, even when a patient 1s threatening to harm another person. Having dangerous patients receive treatment without warnings to persons at risk is safer than having dangerous patients not receive treatment at all.
In short, if the goal is to protect the public from harm, concerns about perverse incentives might lead to the conclusion that ethics and law should not impose on psychiatrists a duty to warn individuals ot threats issued during therapy by mentally ill patients. Even though a straightforward application ot principle might indicate the need for a duty to warn, accounting for the possibility of perverse incentives could result in the conclusion that a duty to warn is inappropriate.
The approach of avoiding perverse incentives recognizes that ethical and legal decisions are forward looking, as well as backward looking. That is, a rule or judgment not only serves to resolve an existing dilemma, it also influences the behavior of people in the future.
Of the three paradigmatic approaches for translating principle into practice, etforts to avoid perverse incentives are probably the most widely recognized. Utilitarian analysis is concerned with all of the consequences of moral and legal decisions, whether desirable or undesirable, and should therefore lead to consideration of perverse incentives. Moreover, the perspective of law and economics has become highly influential in recent years, making judges increasingly attentive to the incentives that their decisions create.
Accordingly, discussions of issues in medical ethics and the law often address the perverse incentives of a policy option. I have already mentioned the example of a duty for psychiatrists to warn about dangerous patients. Physicians preserve conhdentiality in other contexts to avoid perverse incentives. lf a patient needs a kidney transplant, for example, family members might be advised of the possibility of donating one of their kidneys to the patient. Blood testing would be needed to determine whether family members had compatible immune systems such that the patient's immune system would not reject a kidney transplanted from a family member. In some cases, a family member would be a compatible donor, but would not want to give up a kidney. In those cases, physicians will report to the patient and the other family members that the unwilling donor was not medically compatible. If physicians disclosed family members' real reasons for declining donation, unwilling donors might feel coerced into becoming organ donors against their true willthey might find it too difficult to face their sibling, child, or other relative once that person knew of their unwillingness to donate.
Public health measures also invite consideration of the possibility of perverse incentives. As states were developing their responses to the HIV epidemic in the 1980s, they shied away from mandatory testing programs or mandatory reporting of persons with positive HIV tests, on the ground that such requirements would deter persons with HIV infection from seeking medical care and therefore increase rather than decrease the spread of HIV. Similarly, states routinely permit adolescents to consent to treatment for venereal diseases, drug abuse, or other sensitive conditions, out of concern that a requirement of parental consent would deter minors from seeking timely medical care."
Although the perverse incentives that would be created by ethical or legal policies play a critical role in deciding whether a proposed policy is desirable, the incentives can easily be overlooked. When considering a bioethical dilemma, one is inclined to decide how best to resolve that particular dilemma. Consider, for example, the Baby Richard case. Baby Richard's mother had placed him for adoption when he was four days old, without telling the child's father. Nearly two months later, the father found out about his child and filed for custody. The adoptive parents opposed the petition, and the resulting legal proceedings consumed four years before Richard's father was finally awarded custody. The decision was harshly criticized,' and, in terms of that case alone, the outrage was understandable. The birth father and the adoptive parents both had legitimate claims to custody, but, from the perspective of the child's interests, it seemed clear that Richard should have stayed with the parents who had raised him for all but four days of his four years of life.
However, if one looks beyond the Baby Richard case to the implications of a rule or judgment in favor ot the adoptive parents, it is much easier to justify the court's decision. If the adoptive parents had retained custody, the court would have sent the following message to other people: If you are in a custody dispute over an infant, and you currently have custody, you should drag out legal proceedings as long as you can. That way, the courts will be faced with the fact that you have served as the child's parent(s) for nearly all of its life and that it would be disruptive and psychologically traumatic for the child's custody to be changed. Such a message creates worrisome incentives. Moreover, the incentives favor wealthy persons since they are in a much better position than poorer persons to attord a protracted legal struggle. In short, we can often develop better rles and judgments when we consider not only whether we do justice in the cases before us but also by taking account of the implications of our rules or judgments for future behavior.
I will further illustrate the paradigm of avoiding perverse incentives by demonstrating its importance for a key life-and-death issue in medical ethics-refusals of treatment by pregnant women when the treatment is necessary to preserve the life (or health) of their fetuses.
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