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Reconciling informed consent with prescription drug requirements
  1. Nir Eyal

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According to Jessica Flanigan,1 ‘physicians and pharmacists must be legally required to allow universal access to whatever treatments they provide. Citizens have rights of self-medication for the same reasons that they have rights of informed consent.’ In particular, health outcome promotion, welfare promotion and respect for patient autonomy, ‘the most widely cited’ reasons for the doctrine of informed consent (DIC), equally support a libertarian drug access policy. Moreover, they support it regardless of the impact on the patient's future welfare or autonomy or the externalities for others. Outside catastrophic ‘superbug’ scenarios, we should all be able to procure any available drug without prescription, in a ‘behind the counter’ arrangement—after drug contents and risks, fully stated on labels, are assessed for our particular case and explained by pharmacists.

Flanigan's trenchant presentation forces us to question standard justifications of DIC, but remains unconvincing. The spirit of DIC allows some coercive interventions. For example, while it rules out coercing a person to participate in a risky study, it permits coercing non-participation in a pointless risky study. Liberal champions of informed consent typically support coercive seat belt laws, smoking zoning laws, centralised water fluoridation, taxation and traffic regulation. It is true that some bioethicists’ not-very-careful defence of informed consent includes sweeping declarations of the unrestricted primacy of negative rights against being coerced in any autonomous pursuit. Applied consistently, such an unrestricted primacy for non-coercion would have ruled out most drug prescription requirements, as well as research subject protection, seat belt laws and other widely accepted coercive policies.

Flanigan does make the case for non-coercion in the specific area of drug access. First, adducing the historical performance of prescription requirements, she claims: ‘On balance, a right to self-medication would have better medical consequences than the status quo.’ Flanigan's main explanation for the alleged counterproductivity …

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