How Can We (and Why Should We) Analyze the Ethics of Paternalistic Policies in Public Health? February 2018 How can we perceive and address ethical suspected of being paternalistic. This document challenges in public health practice and policy? offers indicators that will help public health actors One way is by using ethical concepts to shed light determine whether a policy is actually on everyday practices. This document is part of a paternalistic. Thus, they may become versed in series of papers intended to introduce arguments that can be used to refute unfounded practitioners, professionals and managers to accusations of paternalism and to reframe debate some concepts, values, principles, theories and and analysis. For policies that, upon scrutiny, approaches that are important to public health prove to be truly paternalistic, this document ethics. The documents in this series are available proposes a nuanced approach to their analysis at www.ncchpp.ca › Projects › Ethics. that involves distinguishing between different types of paternalism and taking into account the values that a policy promotes as well as those on Introduction which it impinges. In the view of certain authors, "public health is in The approach proposed in this document is essence paternalistic because it tends to use the rooted in a theoretical stance that fits broadly power of the State to intervene on behalf of the within the framework of political liberalism. health of individuals (even where this has not Political liberalism refers to a set of political been requested)" (Royo-Bordonada & Román- theories which assign great importance to the Maestre, 2015, p. 3). This type of statement is values of individual freedom and autonomy, problematic for public health, because without necessarily granting absolute primacy to paternalism often has a strongly pejorative these values. In order to reflect generally-held meaning and is used to criticize, disparage or value for freedom and autonomy, in what follows dismiss policies, interventions or actions we will, like the majority of authors discussing characterized in this way without further paternalism, propose adopting a generally assessment (Elvebakk, 2015; Feinberg, 1986; antipaternalist stance for the ethical analysis of Grill, 2013; Wikler, 1978). As Parmet points out, policies or interventions. This position should not even when a policy is not actually paternalistic, be interpreted to mean that paternalistic policies attaching this label to it is a formidable rhetorical are to be rejected without further analysis. and political weapon, because it "resonates with a Rather, it implies that a paternalistic policy or public that distrusts government and values intervention should immediately be viewed as individual liberty" (Parmet, 2016, p. 962). It potentially problematic from an ethical standpoint follows, according to Bayer and Fairchild, that and that further analysis should be conducted to one of the central challenges for public health determine if the policy is ethically justifiable; in ethics is to "define those moments when public fact, it may be justifiable for very good reasons. health paternalism is justified and to articulate a We believe that, whatever their underlying set of principles that would preserve a political orientation, public health actors can commitment to the realm of free choice" in liberal benefit from familiarizing themselves with this democracies, including that of Canada (Bayer & very widespread theoretical position, even if they Fairchild, 2004, p. 492). ultimately interpret paternalism from another theoretical standpoint. Once familiar with the The purpose of this document is to equip public liberal interpretation of paternalism, they will be health actors to conduct a critical and nuanced better prepared to argue with those who adopt ethical analysis of public health policies or this interpretation, often implicitly. population-based interventions accused or Briefing Note up-to-date knowledge relating to healthy public policy For 2 Briefing Note How Can We (and Why Should We) Analyze the Ethics of Paternalistic Policies in Public Health? To deepen understanding of paternalism and help an ethical analysis of policies that are called public health actors conduct this type of ethical paternalistic? analysis, this document has been structured around five main questions: According to Dworkin, "paternalism, is the • What is paternalism? interference of a state or an individual with another person, against their will, and defended or • What are some healthy public policies that have motivated by a claim that the person interfered been called paternalistic? with will be better off or protected from harm" • Why might we be attracted to policies or (2014). interventions that have been called paternalistic in public health? In other words, we are being paternalistic when we • Why might (or should) we be reluctant to accept intervene to protect or promote the well-being of a public policies that are called paternalistic? person who does not desire such protection or • How might we conduct an ethical analysis of assistance. Thus, "the normative core of policies that are called paternalistic? paternalism," as stated by Grill, is "the conflict between on the one hand respect for liberty and In the final, more practical, section, we offer a three- autonomy and on the other hand the protection and step approach to conducting a more nuanced ethical promotion of well-being" (2013, p. 37). More analysis of population-based policies or interventions specifically, "paternalism" refers to instances where that are accused or suspected of being paternalistic. the conflict between respect for autonomy or freedom and the principle of beneficence is resolved by privileging beneficence over individual autonomy What is paternalism? and freedom (Grill, 2013). Thus, one is acting in a paternalistic manner when one infringes on the The term "paternalism," whose first use can be autonomy or freedom of people for their own good. traced back to the end of the 19th century,1 evokes the relationship between a father and his children While paternalism exercised by the government or through its Latin root pater, meaning "father" one of its representatives toward one or more (Childress, 2013; Grill, 2011). Thus, paternalism is populations is an important public health issue, the often first understood as referring to actions or questions it raises nevertheless extend beyond the interventions that are akin to the behaviour of a good scope of public health action. Indeed, this type of father (or a good parent) towards his children. More paternalism – which we will refer to as "state specifically, paternalism refers to actions or paternalism" – more generally raises the question of interventions that are akin to those of parents who where the boundaries lie of the areas in which a limit the freedom of their children or who make democratic government can legitimately intervene 2 decisions for them, for their children's own good. (Grill, 2013). There are many philosophical definitions of The issues associated with the limits of democratic paternalism that detail and clarify this understanding legitimacy differ in several ways from the issues based on the parental analogy. In this document, we raised by the type of paternalism that can emerge will refer to Dworkin's much-quoted definition. We between small numbers of individuals, such as will also introduce a few distinctions proposed by physicians, their patients and their patients’ relatives. various authors in the section How might we conduct This type of paternalism – which we will refer to as 1 To be more precise, according to The Compact Oxford English strategic benevolence in hierarchical relationships, such as Dictionary, the first appearance in English of the term that between King and subject, factory owner and worker, and "paternalism" dates back to June 11, 1881 and is found in an owner and slave" (Grill, 2011, p. 1). This idea that paternalism article in the Chicago Times. According to the Centre national implies a hierarchical relationship is probably connected to the de ressources textuelles et lexicales, the term "paternalisme" visceral reactions that paternalism evokes in some persons. was first used in French in 1894, in a book by J. Novicow, According to Smiley (1989), intervention that is truly entitled Les gaspillages des sociétés modernes : contribution à paternalistic always takes place within the context of such l’étude de la question sociale. unequal relationships where there is a risk of domination. This, 2 according to Smiley, is one of the main problems with In fact, according to Grill, when the term became more common, "it was then mostly used to refer to more or less paternalism. We will revisit this idea. Tel: 514 864-1600 ext. 3615 • Email: [email protected] • Twitter: @NCCHPP • ncchpp.ca Briefing Note 3 How Can We (and Why Should We) Analyze the Ethics of Paternalistic Policies in Public Health? "inter-individual paternalism"3 – has been extensively paternalistic, without passing judgment on the discussed in the literature on bioethics in general, legitimacy of this characterization, here is a selection and more specifically in the fields of medical ethics of such policies specific to the field of healthy public and clinical ethics. One of the premises underlying policy. Included are, for example, policies that: the approach proposed in this document is that state • Prohibit the sale of cigarettes to minors; paternalism varies