Back to Prindle Institute

She-Hulk: Superhero?

photograph of She-Hulk billboard with crowd walking below

What is the responsibility of those with power? Do they merely
have an obligation to refrain from the misuse of that power? Or
do they have a duty to protect those without it?

—Jennifer Walters

These are the very first lines of dialogue spoken by the character Jennifer Walters in the series She-Hulk: Attorney at Law. They echo words attributed to many others. In 1793, the French National Convention declared “they must recognize that great responsibility follows inseparably from great power.” In 1854, the Rev. John Cumming stated that “wherever there is great power, lofty position, there is great responsibility.” Winston Churchill, in 1906, asserted in Parliament that  “where there is great power there is great responsibility.” And, of course, this ideal appears in the Spiderman comics and adaptations: “With great power comes great responsibility.”

Jen’s invocation of this moral ideal, however, is distinct from these other versions.  Of the versions quoted, none of them tell you anything about the nature of responsibility. Each of these simple versions are consistent with a minimalist moral code instructing merely ‘do no harm.’ In other words, just saying you have responsibility may only invoke obligations of non-maleficence. This is the gist of Jen’s second question about refraining from misuse of power. But Jen’s third question explicitly suggests something missing in all these other versions, namely, that there is an obligation of beneficence, a duty to help those without power.

This inclusion of a responsibility to benefit others may strike some as odd. In the United States, we have a strong tradition of only recognizing negative responsibilities.

Negative responsibilities are those that require we avoid performing harmful actions. This is often expressed as an expectation that we not interfere in the lives of others. For example, our notion of property rights includes the negative responsibility to refrain from stealing or destroying someone else’s belongings. Similarly, our conception of liberty tends to be understood as merely negative: in order for me to exercise my freedoms to life, liberty, property, and the pursuit of happiness, other people and institutions must refrain from creating obstacles to my exercise of those freedoms. It is a rare exception to these cultural understandings that we have any positive moral, political, or legal responsibilities.

A positive responsibility is an expectation that my actions will go beyond mere non-interference.

A negative right to life merely means I should not be causally involved in your demise. But, a positive right to life would require, if I am able with little or no chance to harm myself, to help you when your life is threatened.

A common example to make this point is to consider the situation where you walk by a fountain and notice that a person is face down in the water unconscious. If we only have negative rights, it is morally permissible to walk by without trying to help the unconscious person, even if they die as a result. The only requirement is that we do not act in a way that puts the unconscious person in a life-threatening situation, say, placing an unconscious person face down in the water. If, however, we have a positive right to life, I can’t just walk by and do nothing.  If I am physically capable of lifting the person out of the water and have a phone to call 911 for additional help, then I must do both.

It might surprise some to know that each of the three major ethical traditions – consequentialism, Kantianism, and virtue ethics – all seem to recognize some form of a requirement to benefit others. Consequentialism, of course, focuses on whether your actions create the best outcomes, and thus often require that you benefit others. But Kantianism also has a requirement of beneficence.  It is one of the examples of an imperfect duty to others mentioned in the Groundwork of the Metaphysics of Morals. Imperfect duties provide leeway in terms of how the responsibility is discharged, but benefiting others is nevertheless a duty for a Kantian. Virtue ethicists of the Aristotelian variety include benevolence as an important moral virtue. Developing this virtue requires acting beneficently. So, it seems as if we have a requirement to perform beneficial actions, either because of moral rules or because performing them will develop an important moral virtue.

But now, something odd comes up. There is general agreement that we have positive obligations to benefit others when we can. This is an important element in realizing that there might be a paradox of heroism.

We often hear in superhero narratives that part of being a hero is recognizing the moral duty of beneficence, namely, that they must use their powers to help others. However, it is also the case that part of being a hero is acting in ways that go beyond the expectations of duty.

Such actions are called supererogatory actions. They are permissible actions but not required. But, if these two statements—a duty of beneficence and the performance of supererogatory actions—describe two individually necessary conditions for being a hero, can there actually be heroes, super or otherwise?

The duty of beneficence might eliminate the possibility of supererogatory actions. If one only has a negative duty to refrain from hurting others, then there is a large class of permissible but not obligatory actions – the supererogatory – that we can perform.  As just indicated, heroism seems to require that there is such a class of actions because a hero is someone who performs these actions that benefit others, and are permissible but not obligatory. But, if heroes also have a positive duty to benefit others – to help others when we can do so – then it is unclear whether there is any type of action that is permissible but not obligatory: due to human limitations in terms of self-sufficiency, She-Hulk, Captain Marvel, and the rest of the MCU characters would be obligated to help anyone near them with no opportunity for doing something supererogatory.

Quite frankly, each of us, superhero or not, seem to have that obligation. But then supererogatory actions define a category that is empty — there are no possible supererogatory actions. This, in turn, means that it is impossible to meet both requirements of being a hero.

If this is correct, how are we to make sense of our esteem for She-Hulk or any superhero? Jen doesn’t have a moral choice in the matter of whether to be a heroic She-Hulk. The larger community has enforceable expectations of her now that she has power. This is the point of Bruce, in what seems to be a throwaway comedic moment, explaining that the moniker ‘Smart Hulk’ was not his choice, but a decision made by the community that he must accept. Similarly, the obligation to benefit others with her Hulk powers is also not Jen’s choice.

Jen tries to reclaim that freedom to be something other than a Hulk.  She literally states “I didn’t want to be a Hulk” and “I’m not gonna be a superhero.” Instead, she is going to choose “to help people in the way that [she] always wanted to,” as a lawyer in a District Attorney’s office prosecuting those who prey on the vulnerable. Kantianism, with the idea that imperfect duties can be discharged through many different types of actions, might initially agree with this, and thus recover the supererogatory. Jen has to benefit others. But can she meet this requirement by merely being a good lawyer?

It doesn’t appear to be possible. Despite Jen’s attempt at living a normal life, and her claim that she was right to believe that she never has to be a Hulk, we quickly learn that this isn’t true. Bruce Banner’s predictions come to pass. He points out that the appearance of the Sakaraan Class-8 Courier craft isn’t really an accident. It is just another instance of the rule that when you are a Hulk, “weird stuff just kinda finds you.” How better to explain the event of Titania interrupting Jen’s closing arguments. With the arrival of Titania, Jen immediately accepts Bruce’s prediction that she is now a superhero. With a courtroom of non-Hulks and the arrival of enhanced individuals, Jen Hulks-out and protects everyone in the courtroom. Thus, she answers the rhetorical question of her closing argument: those with power have a duty to help those without power.

She has that duty. She accepts that duty. She acts in accordance with that duty. She chooses to do so because she has free will. But that is not a choice of supererogatory behavior; it is merely a choice to follow the minimum requirements of morality.

Jen acts beneficently; the moral choice is an obligation, and not supererogatory. She is not acting like a super hero.

But she is acting like a moral exemplar. In other words, she is someone who understands the moral expectation placed upon her, recognizes the possibility that she does not have to meet those expectations even in a minimal way, and yet chooses to meet those expectations anyway.

And often, even the minimal expectations, especially in terms of benefiting others, are quite demanding. Many of us fail, regularly, to meet those minimal moral demands.

Hopefully, we are all trying to better recognize them and choose to become better. Moral exemplars, then, are people to admire and aspire to be.

And that should be enough. Whether or not it is even possible to be a superhero, it is possible to be a moral exemplar. Furthermore, no one, not even our favorite fictional characters, need to be perfect – what Susan Wolff derisively calls moral saints – to be moral exemplars. We just need to make choices that help us each become a bit more like these exemplars, a bit more consistent with our moral ideals. And if Jennifer Walters’ narrative arc plays out this way and she heeds the call of beneficence, she will be worthy of our esteem, and maybe that’s what it truly means to be a superhero.

Treating Psychopathy?

photograph of 1896 sketch of the brain and it's parts

Most of us are familiar with the idea of the psychopath – emotionally vacant, devoid of empathy, and possessing poor behavioral control. Despite psychopathy not being a recognized mental condition in its own right (or at least, not in that exact terminology), as personality disorders go, it is almost undoubtedly archetypal. Many of the names we attach to the idea of evil certainly qualify for the label, including Ted Bundy, Charles Manson, Jeffrey Dahmer, and David Berkowitz. Beyond the real world, the psychopath is also a staple of fiction, with some of the most heartless villains being written with the disorder in mind, including Hannibal Lecter, Annie Wilkes, Patrick Bateman, and Norman Bates.

However, despite these colorful examples, not all psychopaths stalk the night looking for victims. Most real-life psychopaths navigate the world without making the headlines for slaughtering the innocent or starting nationwide manhunts. For every John Wayne Gacy, there are countless more who, while being manipulative and callous, get through their lives without turning their neighbors into a rug. Indeed, estimates place the prevalence of severe psychopathy in the general population at around 1%. That means, statistically speaking, you probably know a psychopath. And while this is the general prevalence, some groups of society appear to have more psychopaths than others, such as those in corporate leadership positions (≈12%) and prisons (≈20-30%).

Several studies examining the brains of psychopaths have found that they appear to have abnormal neurological structures and functionality. Specifically, the areas of the brain associated with empathy are underdeveloped and lack an average level of responsiveness to external stimuli. Some suggest that this is evidence of a neurological basis for psychopathy and that the abnormal brain structure is why psychopaths behave in the way they do. Following this, others argue that, if possible, we might be justified in using medical techniques and technologies, such as neurosurgery, to alter the brains of criminally violent psychopaths, thereby removing the psychopathy and instilling a level of empathy previously absent.

But can medical techniques reducing or eliminating psychopathic tendencies be justified, or are we medicalizing a group of people out of existence to satisfy societal desire?

We often think that medical interventions, be they as minor as a course of antibiotics or as radical as brain surgery, should only occur when said intervention benefits that person. This requirement is one of the central components separating treatment from research; the former benefits the individual while the latter benefits society (and maybe the individual). While there are exceptions to this rule of thumb – living organ donation, for example – the idea that medical treatment must have some individual benefit is both widely accepted and intuitively appealing. For instance, it would be unjustifiable for a surgeon to operate on you if that operation knowingly provided no beneficial outcome. The idea of an intimate link between a medical treatment’s justification and its potential for a positive result is one of the central pillars underlying one of the most influential theories in medical ethics – principlism.

As conceptualized by philosophers Thomas L Beauchamp and James F. Childress, and formulated in their book Principles of Biomedical Ethics (now in its 8th edition), beneficence is one of the four fundamental concerns when it comes to the ethical permissibility of medical interventions; the others being autonomy, non-maleficence, and justice. According to Beauchamp and Childress, each principle is equally important when looking for ‘reflective equilibrium’ (a coherence between the principles). However, here we’ll focus on beneficence, and specifically positive beneficence, which requires persons to provide benefits wherever possible.

So, would treating psychopathy have a beneficial effect on the psychopath?

This question can be broken down into two parts: (i) do psychopaths suffer as a direct result of their psychopathy?; and (ii) do psychopaths suffer as an indirect result of their psychopathy?

Whether psychopaths suffer as a direct result of their psychopathy is, to a degree, disputed for several reasons.

First, it is unclear whether psychopathy is an illness or a disease. While we might think it causes people to act in less than desirable ways from a social standpoint, this is very different from claiming that psychopathy represents an impairment to health on behalf of the person with psychopathy. If the disorder is of a social (rather than medical) basis, then it would seem highly inappropriate to try and use medical techniques to remedy what is socially disvalued.

Second, even if we accept that psychopathy is predominately medical in nature, that doesn’t mean that its removal would provide a direct benefit. This is because the psychopath would need to experience relief from suffering in a subjective sense for such a direct benefit to occur. Much like how taking a painkiller can’t ease your suffering if you’re not in pain, psychopathy’s removal cannot provide the individual with relief if it didn’t cause suffering in the first place. From the evidence available, it’s not clear whether psychopathy does cause direct suffering. Unlike having a broken bone or terrifying delusions, there’s no clear casual line between psychopathy and suffering. Just because psychopathy is a disorder, doesn’t mean it is harmful.

However, psychopaths don’t exist in a vacuum. Like all of us, they’re situated in the world around them, alongside its complex social, economic, religious, educational, and legal systems. And psychopathy might cause suffering by separating the individual from those systems and, more generally, from society. For example, I suspect many of us would experience suffering if we went to prison for committing a crime. This type of suffering exists regardless of our personality, whether ordered or disordered, because prisons are subjectively unpleasant environments that frustrate our life plans. This is just as true for psychopaths as for everyone else; psychopaths generally don’t want to go to jail. So, by eliminating the root cause of psychopathy, we might be able to prevent psychopaths from being sentenced to prison and thus, help them avoid the indirect suffering they would otherwise experience.

This line of arguing applies beyond prisons, though. Without their psychopathic tendencies, those persons might be better equipped to engage with society, find meaningful connections with others, and empathize with the rest of humanity.

However, appeals to such indirect suffering avoidance are rarely effective for justifying medical treatments in other contexts, especially when the therapy offered has the potential to alter one of the foundations of a person’s personality. For example, we wouldn’t think that someone who lives on the street as a matter of personal preference should have their mental state altered because a result of their choice is the ostracization from society’s mainstay.

We might think their choice is odd, and we might try to convince them that they would be better off living another way of life. But this is very different from using their disordered lifestyle as a justification for a medical procedure based on the idea of harm prevention and reduction.

So what does this mean for our psychopaths? Other arguments might justify medical intervention. For example, it could be that removing psychopathy may restore that person’s autonomous decision-making (although psychopathy’s coercive potential is disputed). One might argue that, as psychopathy is so prevalent in prison populations, its elimination from that sector of society might reduce the pressure on valuable social resources (although this opens up a can of worms regarding the value of autonomy vs the interests of the state).

At the end of the day, if the availability of psychopathic-centric media is any indication, the question of how society handles psychopaths isn’t going away anytime soon, and neither are the psychopaths.

Back to School: America’s Uncontrolled and Unethical Experiment

photograph of middle school science clasroom

As of this writing, several school districts in the United States have already reopened at some level, but most of the nation’s 40 million school-age children are scheduled to return sometime from mid to late August. One major argument for the reopening is so parents can return to work (assuming there is a job to go to), and help rebuild America’s faltering economy. The American Academy of Pediatrics has also supported this back-to-school movement, though this support concentrates on the emotional and social needs of the students that can be better met by returning to school.

There is, however, one argument against going back to school that few consider: Going back to school amid an epidemic is America’s uncontrolled experiment using our children as the sample. Even the nation’s top epidemiologist, Anthony Fauci, told teachers in a recent interview: “You’ll be part of the experiment in reopening schools.” This experiment is neither scientific, nor ethical.

We scientists live in a world of unknowns, and we traverse that world through the use of the scientific method and research ethics. The controlled scientific experiment goes like this: (1) A research question is formulated when the researcher makes the best “guess” as to what to expect from the data to be collected; this “guess” is based on what is already known about the topic, (2) a sample of people is identified that will participate in the experiment with as little risk to them as possible, (3) variables are identified which, as much as reasonably can be, are controlled for, (4) after considering any risks, and obtaining consent to participate from the sample members, the experiment is run, (5) the data are collected, (6) analyzed, and (7) conclusions are drawn. Through this controlled and ethical study, hopefully we find some answers that can be used to solve the problem at hand. Of utmost importance, however, is that these steps must be accomplished within the boundaries of research ethics. In the field of healthcare, these are typically four in number.

The four basic ethical considerations when doing research in the public health and healthcare arenas in general are (1) autonomy, or the power to make an informed, uncoerced, freely given consent to participate in the research; (2) justice, assuring a fair distribution of risks, benefits, and resources over participants, (3) beneficence, that no harm is done; and, (4) nonmaleficence, keeping participants from harmful situations. These ethical considerations came about after WWII when atrocities of uncontrolled experiments on human subjects by the Nazi regime were discovered. These considerations are now guides in designing ethical research. By carefully adhering to the scientific method and ethical principles of research, controlled experiments can be carried out.

Unfortunately, none of these guidelines are being met in the uncontrolled experiment America is about to run on its children when they go back to school this fall. The assumption is that getting students back in school will help solve the economic problem as well as the social and psychological problems the nation’s children are facing. These are important problems, and there are ethical ways of addressing them; the uncontrolled experiment on which America is embarking is not one of them.

If we compare this uncontrolled experiment with an ethically-sound controlled experiment, we can see the many pitfalls; pitfalls that may have dire consequences for all involved.

First of all, there is no research question. There is only a hope that things go OK and not too many get hurt. We don’t have enough information about the virus and its effect on children to even formulate a research question. What are we looking for and hoping to find? In essence, we are saying, “Let’s reopen schools, get the economy going, and help meet students’ social and emotional needs,” inferring that this is the only avenue open to us to accomplish these goals.

Secondly, variables such as the age, race, and gender of students, teachers, school staff, and bus drivers — along with their underlying medical conditions — are just some of many variables that are difficult, if not impossible, to control for in the school environment. Even when good-faith attempts are made to control for some of these variables, several ethical problems emerge.

One example is school transportation. The average school bus occupancy is 56; if social distancing without masking is practiced, only 6 students can ride the bus; if masking alone is practiced, only 28 can ride. It costs districts about $1000 per pupil per year to transport students to and from school. Additional costs to the districts by adding routes and making more trips to get students to school using either masking or social distancing, will be a strain on precious resources that could be spent on helping students with the ability to use remote learning.

Additionally, many states have regulations that mandate only students who live beyond a one-mile radius of the school they attend can ride a bus. Others must walk, ride their bikes, or use public or private transportation. Assuming that the family can afford public transportation, or, has a car, lives in a neighborhood that is safe for walking, and has weather that cooperates, these options work. However, marginalized children who live within this one-mile radius (and are thus not candidates for school transportation) may be further marginalized — kept from the emotional and social contacts they need and potentially missing vital instructional activities. These concerns are further complicated when we think about special needs students, whose medical vulnerabilities might put them at-risk in these new school environments.

Thirdly, the sample used (children) is a protected one. The Office of Human Research Protection (OHRP) identifies several protected populations that deserve special consideration when they are involved in research using humans. Pregnant women, prisoners, those with lessened cognitive abilities, and children are a few examples. Extra precautions must be taken to assure these subjects are not simply being used with little protection from specific harms that may come. Children are not mature enough to make their own decisions as to whether they want to participate in a research project. They seldom, if ever, are even allowed to make their own medical decisions. Children have no say in whether they want to go back to school amid a pandemic projected to have taken the lives of more than 180,000 in our nation by the end of August. We are sending this protected group back to school blindly, with few safety precautions. We also know that when schools were closed statewide during the months of March through May, there was a temporal association with decreased COVID-19-related deaths in those states.

Fourthly, how will we be able to keep the participants (children, faculty and staff, bus drivers) from harm? Masking and social distancing can be practiced at school; however, some age groups will be better at that than others. The benefits and risks involved are not spread evenly over the sample of students. Not only the students are at risk, but teachers are, as well.

Education Week recently reported that as many as 1.5 million public school teachers are at a higher risk of contracting COVID-19 due to their underlying health problems. The research on school staff vulnerability is sparse, but, given the law of large numbers, many staff members are at high risk as well when in a building of several hundred children. Children do get COVID-19, and with 5.5 million children suffering from asthma alone this could be a disaster waiting to happen. When race is taken into account, African-American children are 2.5 times as likely to contract COVID-19 as are Caucasian children, and American Indian and Hispanic children are 1.5 times as likely. Schools may be breeding grounds for transmitting the virus to these vulnerable populations. Children have more of the COVID-19 virus in their noses and throats than do adults, which makes children just as likely to spread the disease. They may not get the disease as easily as adults, but they do transmit it just as easily.

Do the benefits of returning to school (and there are many) outweigh the associated costs of spreading the disease?

There are many reasons other than academic ones for children needing to be in school. We know that at least 14 million children do not get enough to eat on a daily basis and this is dependent on race; 30% of these children are Black and 25% are Hispanic, less than 10% are Caucasian. Additionally, when children are home for extended periods of time with adults, the probability of child abuse increases. Yet, during this summer, schools found a way to deliver lunches, if not breakfast also to their students who were in need of that service.

Some local municipality police departments and county sheriffs have instituted a “Drop By” program. In these programs, homes where abuse may be more likely to occur, are irregularly visited as a “Drop By” to see how things are going and if anyone needs anything. During the visits law enforcement officers are able to get a feel for any evidence of domestic violence doing so in a non-threatening and non-accusatory manner.

School attendance both mediates and moderates the potential problems of food insecurity and abuse. But, as seen with programs such as outlined, there are other ways to ameliorate these injustices to our children. A re-allocation of dollars is needed along with creative ways to supply the needed services that children and families need during this pandemic. Sending kids back to school under the current implementation is not the solution. The potential nonmonetary costs are not worth the benefits that may accrue by returning to school under the present conditions.

Eventually, we will have to come to terms with the outcomes of this uncontrolled experiment. Will we have learned that it was a bad idea? That there should have been more planning to control for the safety and well-being for all at school? That we should have controlled for transportation safety? That dollars should have been reallocated for technology and given to those without it for remote learning? That home visits by school personnel to aid those experiencing difficulty learning remotely would have been worth the money?

Is America prepared to deal with the outcomes of this uncontrolled experiment where children are the sample? Neither science nor the ethics of research accept the premise of “we’ll do it and then see what happens.” But uncontrolled experiments do just that at the peril of those who are participants in unethical, uncontrolled experiments. America sits poised to conduct such a trial.

The Inherent Conflict in Informed Consent

photograph of doctor's shingle with caduceus image

A recent study has drawn attention to the relatively poor medical reasoning capabilities of terminally-ill patients. When confronted with complicating factors, a group of terminal cancer patients demonstrated decreased appreciation and understanding of their prognosis in comparison to their healthy adult counterparts. More concerning, perhaps, is the study’s finding that attending physicians were not consistent in recognizing these deficiencies in competence. Ultimately, the study supports mounting evidence that the bright line we draw to separate individual autonomy from institutional paternalism is too simplistic. Patient competence is overestimated and physicians’ impact is underappreciated. These findings have important implications for our conceptualization of informed consent.

Informed consent is a process, made up of the many communications between a doctor and a patient (or clinical investigator and research participant). Details regarding the purpose, benefits, and risks of, as well as alternatives to, a given treatment are relayed so as to enable potential clients to deliberate and decide whether the medical intervention offered aligns with their interests. As a patient has all the freedom to decide what should or should not happen to her body prior to undergoing a clinical trial or medical procedure, the decision is to be made free from coercion; the doctor acts so as to facilitate patient decision-making. Achieving this requires adequate, accurate information be provided in terms the patient can easily understand.

Legally, informed consent represents a basic threshold of competency that a patient must be assisted in meeting in order to legally acquiesce to a medical procedure. It exists to safeguard bodily integrity — the right of self-determination over our bodies. It grants legal permission and protects healthcare providers from liability.

Morally, informed consent is a compromise between epistemic merits and welfare interests. Informed consent balances doctors’ medical expertise against patients’ unique knowledge of their preferences. While physicians might know best how to treat injury and combat afflictions, they are less equipped to make determinations about the kind of risks a patient is willing to take or the value she might place on different health outcomes. As patients must live with the consequences of whatever decision is made, we tend to privilege patient autonomy. Once properly informed, we believe that the patient is best-positioned to determine the most suitable course of treatment.

The trouble, as studies like this show, is that patients are not the autonomous healthcare consumers we assume them to be. They are often dependent on the doctor’s expertise and medical advice as many suffer from some combination of informational overload and emotional overwhelm. Patients’ weak grasp of their medical prognosis is offset only by the trust they have in their physician and a general deference to authority.

This means that informed consent is, in many cases, simply not possible. Patients who are very young, very ill, mentally impaired, or even merely confused are not capable of demonstrating sufficient competence or granting meaningful permission. Unfortunately, patient literacy is overestimated, communication barriers go undetected, and patient misunderstanding and noncompliance continues. Findings suggest that thorough assessment of patient competence is rare, and patients’ comprehension is questioned only in those cases where a patient’s decision deviates from the physician’s recommendations.

An increased focus on patient education may not be enough to combat these problems. Efforts to present information in a more accessible manner may bring some improvement, but there are many medical situations where the sheer complexity or volume of the information involved outstrips the decision-making capacity of everyday patients. Some types of medical information, like risk assessments, use probability estimates that would require formal training to fully appreciate and thus overburden patients’ capacity to adequately comprehend and reasonably deliberate. In such cases, no amount of dialogue would allow a patient to attain the understanding necessary for informed decision-making.

In the end, the possibility of an equitable doctor/patient consultation is rarely a reality. As Oonagh Corrigan explains,

“There needs to be a realisation that the type of illness a patient is suffering from, her anxiety about the likely trajectory of her illness, her expectations about treatment and, in general, her implicit trust in the doctor and medical science mean that ‘informed choices’ based on an adequate understanding of the information and on careful consideration of the potential benefits and risks, are difficult to achieve in practice.”

We cannot maintain our idealistic divide between autonomous decision‐making on the one hand, and autocratic paternalism on the other. From framing effects to geographic bias, a physician is bound to have a greater hand in decision-making than our common conception of the dynamic allows.

Some may say that this liberty is sufficiently curtailed by the Hippocratic Oath. A doctor’s duty to the health of a patient is thought to limit the possibility of abuse. But the physician’s obligation to do no harm offers little guidance on the ground. The duties of nonmaleficence and beneficence share no necessary tie to the particular social and cultural values of patients. They would, for example, recommend the administering of blood transfusions to patients whose deeply-held religious beliefs disallow it.

Finding a suitable middle ground between individual autonomy and institutional paternalism is particularly tricky. The territory of informed consent is already a political battleground. One need look no further than the dispute concerning mandatory pre-abortion counseling or talk therapy for transgender patients. While we may wish physicians to take a larger role in the care of those who genuinely lack capacity, this would inevitably lead to the silencing of legitimate interests. Any acceptable resolution of this tension is bound to be hard-won.