My L.A. Times Op-Ed: In Defense of the Evidence-Based Nudge

by Michelle Meyer, Bioethics Program Faculty

The op-ed, which appeared a couple of days ago, is online here. It’s co-authored with Christopher Chabris (who happens to be my husband). Here—where I’m writing only for myself—I thought I’d say a bit about what motivated us and elaborate on a few points whose force may have been blunted by the process of condensing our thougts into our allottted 1,000 words.

The news hook for the article was an August memo leaked to Fox News in which the Obama administration announced that it is looking to hire behavioral scientists to help shape policy. Notwithstanding that the explicit model for this initiative is the U.K.’s “Behavioral Insights Team,” formed in 2010 by Conservative Prime Minister David Cameron, in the U.S., some on the right went completely off the rails about the Obama announcement.

A typical reaction was from Fox News’s Monica Crowley, who described the initiative as “really frightening,” “insane,” “outrageous,” “unconstitutional,” “an Orwellian horror show”—and all of the aforementioned mostly because, so far as I can tell, she believes that nudges constitute a form of “psychological warfare” akin to “what our military does to our enemies.” There are certainly legitimate criticisms of nudges to be made by both the right and the left, but that they are a form of Communist mind control is not among them. (For starters, even if nudges did rely on something like subliminal messages, those messages have been shown to have no effect on consumer behavior, much to the chagrin of marketers.)

The impetus for our piece, then, was to disabuse the Crowleys of the world (or at least that portion of them who are open to persuasion on this matter) of that notion, and then to offer some affirmative reasons why conservatives and libertarians should embrace the nudge (its preservation of all options in the choice set; its ability to incentivize personal responsibility; its efficiency), especially relative to its often perfectly viable alternative: the shove. (To that end, the piece was originally intended for a periodical with a right-of-center audience but wound up in the L.A. Times, where some of it may admittedly amount to preaching to the choir.)

In making our case…

…we tried to avoid overselling nudges, as some others who have defended Obama’s nudge unit have done, including the administration itself. The memo recruiting behavioral scientists says, for instance, that its nudges are designed to “help people to achieve their goals.” But not everything that has been characterized (perhaps wrongly) as a “nudge” aims primarily at helping the nudgee act in her own best interests, as seen by the nudgee’s own—or even the nudger’s—lights. Our example, touted as a nudge by David Brooks, is an opt-out default rule for organ donation. I myself am in favor of organ donation opt-out defaults, but falsely characterizing such defaults as libertarian paternalism can only play into the right’s paranoia about nudges and thereby undermine the whole effort. Better simply to acknowledge that arranging the choice architecture in this way promotes the state’s values, while noting that elections have consequences, and in urging its citizens to act in ways the state deems good, nudges should be preferable to shoves.

Even where a nudge does aim to make it easier for nudgees to act in ways that reflect the nudgee’s own good, as she herself sees it, no nudge policy will in fact have that effect on everyone, since we all have different visions of the good and find ourselves in different circumstances. As I’ve argued elsewhere (in the context of risk-benefit analysis by IRBs), central planners (1) cannot possibly know every individual citizen’s preferences and, in any event, (2) cannot enact a single policy that caters to those preferences, since human beings happily tend to be rather diverse. So it’s disingenuous to pitch nudges as helping everyone achieve their goals; they can’t, and they don’t. But when a central planner has to make some decision—someone, whether it’s the government or your boss, has to set the default for retirement savings plans on behalf of many diverse people, not all of whom, it must be conceded, decline to save out of irrationality—nudges (1) preserve the idiosyncratic citizen’s ability to make a different choice and (2) sensibly set the default to what the government has good reason to believe will serve most people.

We also try to highlight some advantages of nudges that have been given short shrift. For instance, Crowley is apparently alarmed by the fact that the government will be “experimenting” on citizens. (For her, as for so many others, the word “experimentation” seems to conjure images of vivisection, Frankenstein’s monster, and the like.) In our piece, we argue, to the contrary, that regulation is most appropriate only if it has first been tested on citizens in randomized, controlled trials (RCTs). Regulations have costs, and we ought to have some evidence that they will yield benefits that justify those costs. This is true even of nudges: what for the individual citizen is a gentle nudge will often be a very big, very expensive shove for business.

But on this score, nudges are at a considerable advantage over other forms of regulation. One time-honored way of the government incentivizing citizens to do what they want, for instance, is to amend the tax code. Before implementing them across the nation, could the government test proposed changes to the tax code to ensure that they have the intended effects on behavior? Maybe. But dealing with multiple versions of the tax code would be administratively difficult and would likely raise several legal (e.g., equal protection) objections. Because nudges by definition neither mandate nor forbid any choice, nor do they significantly alter the economic incentives to choose among options, they can more easily, ethically, and legally be subject to randomized experiments to test their efficacy. The Obama administration suggests that its Nudge Unit will only implement empirically tested nudges. But, as we discuss, the costly Obamacare rule requiring chain restaurants to display calories counts was not tested in advance, and evidence for its efficacy in reducing caloric intake is inconclusive, at best.

Our take-away, then, is that nudges have the potential to serve ends that people across the ideological spectrum should embrace. At the same time, we critique the administration for a somewhat wavering fidelity to best practices in imposing new regulations. In short, we say that nudges are good, especially compared to the alternatives, but only if they’re done right.

[This blog posting originally appeared on The Faculty Lounge. The contents of this blog are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

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Hunger Games: Guantanamo Bay

by Theresa Spranger, Bioethics Program Alumna (MSBioethics 2012)

Guantanamo Bay is back in the news.  It seems that several of the inmates are currently participating in a hunger strike that began in February of this year.  It was started to draw attention to the camp and make a political statement that it should be closed as President Obama promised it would be during his 2008 campaign.

The hunger strike started with just a few prisoners and has expanded to over 100 of the 166 detainees.  About 45 of them have lost a significant amount of weight and require forced feeding to keep them alive.

So, what does “forced feeding” entail exactly?  Twice each day the prisoner is restrained at the hands, feet, and head, in a chair, a feeding tube is inserted into the stomach though the nose, and a protein shake (Ensure, or the like) fed to the prisoner through this tube.  The process can take up to 2 hours per person, per feeding.  With 45 people on feedings, each twice a day, this is no small operation for the Guantanamo Bay medical staff.

Some activist groups consider the forced feedings to be torture.  To back up their claim they look to the world of medical ethics.  The World Medical Association and American Medical Association, among other organizations, accept that patients have the right to refuse life sustaining treatment, including tube feedings.  This has been established through cases like that of Terri Schiavo, the Florida woman in a vegetative state whose story made headline news in the early 2000s.

Reprieve, a human rights group, recently released a video of Hip-hop artist/actor, Yasiin Bey (also known as Mos Def) undergoing the same forced feeding procedure that is happening in Guantanamo Bay.  In the video, Mr. Bey is unable to complete the procedure and it is stopped before the tube is even completely lowered into his stomach.  For much of the 4 minute video he is seen screaming and crying in an orange jumpsuit while being restrained in a chair, with people in white lab coats attempting to place the tube in his nose.  He continues to scream and struggle, until an off screen voice tells them to stop the procedure.

The video was made to illustrate the painful nature of the forced feeding procedure; the group considers the procedure a form of torture and has openly called for the feedings to be stopped.  The tag on the Reprieve website is, “Reprieve delivers justice and saves lives, from death row to Guantanamo Bay.”   Given their current argument about the forced feedings I find this tag line to be ironic.

It seems Reprieve has missed a major memo, so let me break it down here:

If we stop the forced feedings and the prisoners still refuse nourishment, they WILL die!

So, the question becomes: can you live with that?

If you will please look to the left of our military you will see a rock and to the right a hard place…now choose.

The military defends their decision to pursue the forced feedings saying they don’t allow suicide by any other means, so they choose not to allow it in the form of starvation.  I understand their position and that they are trying to prevent the loss of life.

My personal feelings however, are against the forced feedings.  Not because they are torturous or painful, though I’m sure the procedure is less than pleasant.  I am against them because I think our military and our country are being manipulated by the prisoners at Guantanamo Bay.  They stop eating and what has been the American reaction?

  • The New York Times printed an editorial about the horrors of Guantanamo Bay in a prisoner’s own words.
  • We discuss how the forced feedings could interfere with Ramadan, therefore violating the prisoners’ right to freedom of religion.  (Side note: The feedings are currently being performed at night to respect the religious traditions of the prisoners.)
  • Human rights activist groups, like Reprieve, take up the cause and renew the fight for the camp to be closed.

I don’t think the men of Guantanamo Bay actually want to die the miserable death of starvation, but rather they have found a captive audience for this new game of theirs.  If the feedings continue the hunger strike will never end.  The only way I can see to convince the men to start eating again is to let them see their decisions play out in some of their comrades.

I understand that my opinion is probably not a popular one, I don’t even like it myself to be honest, but what choice do we have?  Many will certainly say, “Close Guantanamo Bay…there is your choice.”  To them I say:

Whether you choose to believe it or not, there is a reason these men are being held in Guantanamo Bay and a reason that our current President, like the last one, has not closed the facility.

[This blog entry was originally posted in a slightly edited form on Ms. Spranger’s blog on July 15, 2013. Its contents are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

Unintended Consequences: Obstruction of Patient Choice

by Sue Dessayer Porter, Bioethics Program Alumna (MSBioethics 2011)

Oregon was the first state to legalize aid-in-dying. Since 1998 it has implemented “Death With Dignity (DWD),” which allows eligible terminally ill people to end their lives peacefully with a legal prescription.

Contrary to fears asserted by the opposition, there has been neither a slippery slope, nor granny panels, nor hordes of people clamoring to Oregon in order to die. With fifteen years experience, DWD has demonstrated successfully that cautious adherence to the law provides safe choice and dignity at the end-of-life.

But in spite of this flawless record, there is increasing obstruction against choosing this autonomous and personal end-of-life option. The problem? As Catholic hospitals merge with financially imperiled medical centers or acquire independent medical practices, they are instituting religious policies which prohibit doctors from any participation with DWD. This restriction applies to all doctors, not only Catholics. Therefore, a Jewish physician treating a Protestant patient is dictated by Catholic doctrine. – Doctors are not even allowed to have a conversation with their patients about DWD, so the “duty to refer” to another physician is not even a consideration.

An unintended consequence? Section 127.885 (5) (a) of Oregon’s DWD Act allows a health care provider to prohibit another health care provider from participating in DWD (http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ors.aspx). This was a compromise incorporated into the law in order to appease the opposition and move the law forward. But in retrospect, lawmakers in the early 1990’s could not have predicted the merger activity by Catholic hospitals twenty years into the future. The state of medical economics has changed so dramatically in the last two decades, that private practitioners cannot sustain on their own; for survival, they are bought by medical centers. Therefore, doctors who previously supported patients through DWD can no longer do so. Washington state voted DWD into law in 2008 and is facing the same obstacles.

Catholic health care leaders claim to be in a savior mode, in that if it were not for them, many communities would be bereft of medical care. They state that they are “driven by a mission to serve the underserved” and profess a commitment to help every human being (http://www.nytimes.com/2013/05/13/us/hospital-mergers-in-northwest-).” This is a guise of altruism, as patients requiring end-of-life choices are being denied lawful alternatives. This pervasive barrier to aid-in-dying is affecting ever-increasing numbers of qualified terminally ill patients who try to avail themselves of DWD. Because their state voted DWD into law, residents of Oregon and Washington reasonably assume that their doctor-patient relationship entitles them access to aid-in-dying. Although this is a credible expectation, it is proving to be false too frequently.

Doctors are individually protected by conscience clauses to deny services that are in conflict with their personal beliefs. Alternatively, as long as freedom of choice is protected for doctors who do not want to participate in specific procedures, the same principle of choice should be guaranteed for doctors who do choose to offer what they consider responsible, ethical and dutiful medical care. And logically, a patient should be assured their right to self-determination.

Medical beneficence should be defined by the doctor and patient, not dictated by the religious views of a separate entity which controls with economic power.

[The contents of this blog are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

On Hunger Strikes

by Jacob Dahlke, Bioethics Program Alum (MSBioethics 2012)

“We will not allow a detainee to starve themselves to death and we will continue to treat each person humanely.” Lt. Col. Samuel House.

Under what circumstances can physicians treat their patients over their objections? Do prisoners (or more accurately in this case detainees) have a right to refuse medical intervention? How might a military physician reconcile a situation in which the two professional obligations directly conflict with each other?

Questions like these have arisen in the news recently in which military officials have dispatched medical officers to manage the treatment of detainees at Guantanamo Bay. I personally am troubled by my initial reading of these headlines, but upon my realization that it may have been a purely visceral response, I decided to evaluate the situation a bit more objectively, if possible.

Good ethics begins with good facts; one way to organize those facts is to compile them into four quadrants: medical indications, patient preferences, quality of life considerations, and other contextual features.

Lt. Col. House has indicated that 100 of the 166 current detainees are participating in the strike, although lawyers for some of the detainees said that the number was around 130. Let’s be clear on this: the lowest estimate is that 60% of the detainees are voluntarily withholding nutrition, or nutrition and hydration. The high estimate indicates 78% participation.  21 detainees are currently being fed with nasogastric tubes over their objections. Five of the participants are currently hospitalized, likely due to side effects of malnutrition.

The detainees have not been evaluated for decisional capacity. In a case where that has not taken place, one would presume that a person has the capacity to make their own decisions. Regardless of a person’s capacity to make medical decisions, all persons retain the right to refuse treatments. If a person refuses a treatment, then the physician (or other medical professional) has two choices: they can honor the person’s refusal and manage the person’s side effects of the refusal (malnutrition in this case), or the professional can treat the person over their objection. This is technically medical assault or battery, so a special provision must be made in order to ethically justify it. That provision is that the person is suffering from a psychological, psychiatric, or somatic illness that is interfering with the person’s ability to properly evaluate the medical decision. That is, if the person is too ill to appropriately refuse (they lack capacity), then we can be justified in treating this person over their objection in order to achieve their greater goal of survival or life prolongation. (Since they have not be sufficiently been evaluated for their capacity, one cannot determine whether their goal is to prolong their lives.)

If we cannot make a definitive assessment based upon the first two categories, we must use the latter two. First, a caveat: I am making assumptions and judgments. I try to make them as objectively as possible, but due the general lack of good facts in this case, it will likely be overall inadequate.

These persons are currently detained in a military prison. They have been there for the better part of a decade (many for longer). While they are technically in a legal limbo of awaiting a trial, there are many indications that there is no intent to ever do that. Translated: this is their life, for the rest of their life. The only other prospect is that they get transferred to another prison. For all other practical purposes, they can be considered prisoners convicted of any other crime: they are treated for illness, provided limited access to personal belongings, etc.

There are likely many cultural biases at play in this case, and probably too many to begin to consider. To some Americans the detainees represent the antagonists to our global goals and achievements. “They” attacked “us”, and therefore in this course “we” captured “them”. To others, the detainees represent all that is wrong with America’s relationship with the rest of the world. Muslim v. Christian. American v. the “Middle East”. Us v. them. I contend that all of these cultural biases, while real and present in this case, are irrelevant. What I find interesting instead is the cultural clash among the health care professionals. There is a culture associated with being a health care professional, one that highlights a fiduciary responsibility to reduce suffering, treat illness, and respect individuals. There is a culture associated with being in the military, one that highlights a fiduciary responsibility to provide security, to reduce or eliminated harm or threat of harm. The structures, processes, and outcomes of these two cultures directly conflict here. It is relevant to note that the news has indicated the arrival of Navy medical personnel included “nurses, specialists, and hospital corpsmen who are trained to provide basic medical care“, which indicates to me that the medical personnel did not include physicians. This is an important distinction, particularly if one wanted to criticize AMA president Lazarus’s letter to Secretary of Defense Hagel on the subject. Translated: Lazarus is opposed specifically to treating over objections if it is physicians who are asked to do it, but will not commit to objecting to the practice in general, since the medical personnel are not technically physicians (and therefore technically beyond the AMA’s scope). Classy. But I digress.

One partial justification for the feeding tubes is that some of the detainees (being force fed) have occasionally voluntarily eaten, when removed from the general population of other detainees participating in the hunger strike. A relevant question then is at what point does peer pressure- which still represents an individual’s autonomous decision- change to coercion, which includes a threat of harm to the person? And what if the situation were reversed, and there was peer pressure on detainees to stop their hunger strike? Would the military intervene in that case of ‘peer pressure’? Likely no, because it’s not the peer pressure that matters; it’s that the detainees are doing something (hunger strike) that the military doesn’t want them to.

Ethical principles to consider

For me, this situation abounds in contrasting ethical principles. The first surrounds the right of a patient to express their autonomy, balanced with the health care professional’s obligations to beneficence (doing good- like treating illness or reducing suffering) and non-maleficence (avoiding doing harm, such as standing idly by while a person’s decisions reduces the quality of their health). I repeat my interest in noting that the military personnel are not physicians. (It is surely worth exploring the professional ethical codes for the personnel, but not for this dialogue.)

There is an apparent conflict between beneficence and non-maleficence. This is only perceived however, because we don’t actually know what the detainee’s goals are. If the goal is to minimize suffering, and if living this way is worse than death itself, then it would be beneficent to allow this and harmful to prevent it. It would thus be an ethical violation to treat this patient over their objection. Thus, the military is keeping these people alive, against their wishes… do what with them? Keep them in this limbo state, presumably.

If however, the detainee’s goal is to protest their treatment, to highlight the numerous abuses and illegal that are being imposed upon them, then the detainee’s goal is indeed life prolongation. Their refusal of food and overall nutrition and hydration, then, represents an irrational decision. How can one want to live, and yet refuse nutrition which will prolong your life? Here is a well-written article on the perceived noble explanation by the military that they are preventing suicide.

There is additionally the role that justice plays in this case. If the goal is to prosecute these individuals for their presumed crimes, then I can see an argument to treating them over their objections in order to see them through their course of justice.

In a strictly medical setting, if a patient refuses a treatment, there is a medically ethical obligation to pause and reconsider patient’s goals; if he has capacity, we should honor patient’s right to refuse. To treat the patient with capacity is to violate his rights, thus conducting battery on the person (doing something to him that he doesn’t want). If the patient doesn’t have capacity, we still can’t do something to someone that doesn’t want it. We must go to court, and get special permission to break the law (do something to someone that they don’t want us to do).

But let’s face it, it won’t. This is Guantanamo Bay. The whole place is one big quagmire of questionably dubious if not full-on illegal activity. Its very existence is questioned by the UN as a breach of international law. But I have drawn enough breath for tonight, and clearly I am not the only one thinking about this.

[This blog entry was originally posted on Mr. Dahlke’s blog on May 2, 2013. Its contents are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]