Wednesday, March 05, 2014

Regulatory Bias and Unseen Harms

Our medical system exhibits a systematic bias whereby erroneously allowing a harmful treatment is seen as much more morally significant (and important to avoid) than is erroneously withholding a beneficial treatment, regardless of which kind of error is actually likely to result in a greater amount of avoidable human misery and suffering. (Similarly, a small risk of harm to some patients may be treated as outweighing a large likelihood of benefits for most patients. Such over-the-top risk aversion can be especially restricting to pregnant women, who may be warned against anything on the flimsiest of evidence.) Given that we are so sensitive to the first kind of error, and so blind to the second, we should expect there to be more "low hanging fruit" -- or easily achievable ways to improve human health and flourishing -- attainable via medical deregulation than by increasing medical regulation.  Yet bioethicists tend to be more interested in the latter than the former.  This seems unfortunate.

This bias may be partly due to the greater visibility of erroneous permissions in comparison to erroneous prohibitions. It is easier to identify when a new harm has (but needn't have) occurred than when an existing harm hasn't (but could have) been prevented. And it makes for a more dramatic story, making it more likely to be publicized in the media, and whipping up sentimental opposition.

Some deontologists might claim that this is not a bias at all, but an appropriate application of the doing / allowing distinction: harming really is worse than merely failing to benefit, they might claim, and so it's entirely appropriate that new drugs and treatments are considered "guilty until proven innocent", so to speak.  But I think that even those who are partial to putative deontological asymmetries in other contexts should be wary about applying them here, for two reasons.

Firstly, I think it's a mistake to categorize the prohibition of beneficial treatments as a mere "failure to benefit".  Rather, it amounts to positively obstructing patients from taking the necessary means to relieving themselves of pre-existing harms.  That is, it is both (i) obstructing, rather than merely not interfering; and (ii) concerning treatment -- or the alleviation of suffering and ill-health -- rather than enhancement of health and happiness beyond "normal" levels.

Secondly, deontological constraints and asymmetries are more plausible in the sphere of personal ethics, and much less plausibly appropriate when it comes to matters of public policy and public health. (Compare Goodin's Utilitarianism as a Public Philosophy.)

None of which is to suggest, of course, that we should be blanket opposed to all medical regulation.  But we should, perhaps, be more wary of it than we might otherwise have been, and take care to consider the hidden costs that we might otherwise have neglected.


  1. Drugs with known fetal risks are given to pregnant women where their health care is seen to demand it - eg cancer, severe epilepsy, severe infectious illness. The other point is that testing medications for harm to the unborn child is avoided by the manufacturers - it is cheaper to just recommend against it - as I understand it anyway. Most modern drugs are not so superior to preexisting treatments as to make it attractive to risk adverse effects in such a trial.

  2. Here's a consequentialist reason for thinking the kind of bias you're attacking here might be okay: *given* "the greater visibility of erroneous permissions in comparison to erroneous prohibitions," the fact that a harm "makes for a more dramatic story, making it more likely to be publicized in the media, and whipping up sentimental opposition," the fact that various cognitive biases might make people more scared of medical mistakes than natural deaths, etc., we can expect that implementing a harmful policy will have bad effects in terms of making people less likely to go to the doctor, more likely to trust alternative medicine, etc. that wouldn't arise from failing to implement a helpful policy. Of course, whether this concern justifies the strength of the current bias is a different (largely empirical) question.


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