Ryan Hubbard

In this article, we argue that physicians have normative authority over patients. First we elaborate on the nature of normative authority. We then examine and critique Arthur Isak Applbaum's view that physicians lack authority over patients. Our argument appeals to four cases that demonstrate physicians' authority.

Health professionals seeking religious exemption from caring for some patients or providing some interventions receive robust legal protection. Similarly, religiously affiliated organizations have great latitude in deciding which services to offer. These protections could soon become stronger, as the US Supreme Court considers 2 cases that revisit constraints on exemption claims established in Employment Division, Department of Human Resources of Oregon v Smith (1990). This article contends that overturning this case's precedent might result in clinicians claiming more religious exemptions, which, barring acts of US Congress, would erode the rule of law and increase risk of harm to patients.

The increasing accuracy of algorithms to predict values and preferences raises the possibility that artificial intelligence technology will be able to serve as a surrogate decision-maker for incapacitated patients. Following Camillo Lamanna and Lauren Byrne, we call this technology the autonomy algorithm (AA). Such an algorithm would mine medical research, health records, and social media data to predict patient treatment preferences. The possibility of developing the AA raises the ethical question of whether the AA or a relative ought to serve as surrogate decision-maker in cases where the patient has not issued a medical power of attorney. We argue that in such cases, and against the standard practice of vesting familial surrogates with decision making authority, the AA should have sole decision-making authority. This is because the AA will likely be better at predicting what treatment option the patient would have chosen. It would also be better at avoiding bias and, therefore, choosing in a more patient-centered manner. Furthermore, we argue that these considerations override any moral weight of the patient's special relationship with their relatives.

Jeffrey Berger’s article “Marginally Represented Patients and the Moral Authority of Surrogates” makes an important contribution to the literature on surrogate decision making by raising the important issue of whether merely related, non-intimates should serve as surrogates. In this commentary, we highlight two important claims he makes and raise a number of concerns.

A survey of the recent literature suggests that physicians should engage religious patients on religious grounds when the patient cites religious considerations for a medical decision. We offer two arguments that physicians ought to avoid engaging patients in this manner. The first is the Public Reason Argument: we explain why physicians are relevantly akin to public officials. This suggests that it is not the physician's proper role to engage in religious deliberation. This is because the public character of a physician's role binds her to public reason, which precludes the use of religious considerations. The second argument is the Fiduciary Argument: we show that the patient-physician relationship is a fiduciary relationship, which suggests that the patient has the clinical expectation that physicians limit themselves to medical considerations. Since engaging in religious deliberations lies outside this set of considerations, such engagement undermines trust and therefore damages the patient-physician relationship.

Laura Odwazny and Benjamin Berkman have raised several challenges regarding the new reasonable person standard in the revised Common Rule, which states that informed consent requires potential research subjects be provided with information a reasonable person would want to know to make an informed decision on whether to participation in  a study. Our aim is to offer a response to the challenges Odwazny and Berkman's raise, which include the need for a reasonable person standard that can be applied consistently across IRBs and that doesn't stigmatize marginal groups. In response, we argue that the standard ought to be based in an Ordinary rather than Ideal Person conception of reasonable person and that the standard ought to employ what we call a Liberal Constraint: the reasonability standard must be malleable enough such that a wide variety of individuals with different, unique value systems would endorse it. We conclude by suggesting some of the likely consequences our view would have, if adopted.