Does the offer involve treating patients unwisely?

The first consideration is that an offer may involve treating patients unwisely and, in particular, that the offer may have significant unwanted negative consequences. These negative consequences might be for the individual patient, or for other patients. Materially advantaging a patient to encourage treatment adherence could bring short-term benefits but have negative effects in the long term. The evaluation of consequences as positive or negative depends on the model of mental healthcare that is drawn upon to substantiate the professional duty to benefit patients. For example, within a ‘recovery model’ of mental healthcare, a reward could be judged to undermine the patient's development of personal responsibility in the journey towards recovery.22

Alternatively, an offer might benefit the individual patient, but might have negative consequences for other patients. For example, providing an inducement to a patient to encourage treatment adherence might lead other patients, when hearing of this, to stop taking their medication unless they were given a similar inducement.

Offers may, in addition, lead to fundamental changes in the way practitioners see the role of treatment, leading to their abandoning a belief in the possibility of progress. The resultant disillusionment in benefiting patients could have further effects for all patients within a service. Whether this form of ‘therapeutic nihilism’23 would in fact develop through making offers to patients is an empirical question that deserves closer scrutiny.

Does the offer involve exploiting patients?

The second consideration is that offers may exploit patients. Exploitation, which can be defined broadly as a situation in which X takes unfair advantage of Y,24 has been considered more in the contexts of research ethics,25 26 and the sale of human organs,27 than in clinical practice. Exploitation requires the exploiter to benefit unfairly, as is the case in the rare but clear-cut examples of financial and sexual exploitation in clinical practice. Clearly, offers that benefit the practitioner and that involve such obvious abuse of a patient, are wrong.

However, when a practitioner is attempting to benefit a patient when considering whether to make her an offer, the key consideration from the point of view of exploitation is to clarify whether the practitioner is acting with the primary intention of benefiting herself. This benefit could operate at a systemic rather than personal level, such as when an offer is proposed as a means for a practitioner to meet targets for treatment adherence in order to avoid sanction by the employing organisation. Personal benefit might be relevant in offers used with the primary intention of guarding against reputational damage should the patient harm himself or others on stopping her medication.

The key point from the perspective of exploitation is that, when considering making an offer, the benefits to the practitioners should be identified and removed from the decision process, with the offer being proposed only if it is justified in the interests of the patient. There may be rare occasions when the benefit to the practitioners tips the balance in favour of making the offer, in which case that decision will need clear and explicit justification to demonstrate that it will not unfairly disadvantage patients.

Does the offer raise broader questions of fairness?

Szmukler2 has argued that an offer (eg, a payment) made to a patient in the situation where that patient has withdrawn from treatment may be unfair to those patients who adhere to treatment without benefiting from the offer. Thus, questions of fairness in relation to offers made to patients arise at the broader institutional and societal level, rather than solely in the context of individual patient-professional relationships. Determining whether the situation outlined by Szmukler is unfair depends on the view taken about patient responsibility in relation to treatment adherence. In a service which does not generally consider patients responsible for treatment adherence, the offer envisaged would not be ethically problematic on the grounds of being unfair. In a service that held patients responsible for their own recovery, however, whether on grounds of principle or as a therapeutic tool, such an offer might be unfair to patients who take medication without the inducement of the offer.

Considerations of unfairness also arise at the broader societal level of resource allocation. An offer using more resources than was justified given the overall resources available might, for that reason, be unfair. Such a justification could be fleshed out in terms of cost-effectiveness or need.

Does the offer undermine the voluntariness of patients' decision-making?

Finally, there is intuitive appeal in the idea that an offer can, if sufficiently attractive, undermine the voluntariness of a patient's decision on the grounds that the offer is, in some way, irresistible. We disagree with this. Wertheimer distinguishes between situations in which a person acts non-volitionally from those when a person makes a decision under conditions of constrained volition.8 In the first situation the person has no choice to make, or is unable to make a choice. No proposal is made and the individual is either compelled to take a particular course of action (eg, through physical restraint or the forcible administration of medication), or is unable to understand the decision-making process. In neither case is the individual acting as a moral agent.

In contrast, in situations of constrained volition, a proposal is presented that has the effect of restricting a person's choices. Crucially, however, the person retains the ability to make a decision from the (limited) choices presented. Thus, even in the paradigmatic coercive threat, ‘your money or your life’, the person can decide not to hand over her money, remaining in charge of how she acts.28

As Mackie29 observes, actions made under duress, danger or temptation will at most complicate how these actions are described as intentional and “the only kind of compulsion that makes an act unintentional is simple physical compulsion or constraint, which really makes it not an act of this agent at all”. We concur: the complexity—and concern—in making a proposal to a patient lies in the wrongfulness of any constraints the proposal places on her freedom, the negative consequences that would result from the proposal being accepted, the unfairness of the proposal to the patient or other patients, or the exploitative nature of the relationship between the parties involved. It does not lie in the failure to respect personal autonomy that would result from the proposal undermining the voluntariness of the patient's decision-making.

While we have suggested that the connection between threats and involuntary decision-making is open to challenge, other philosophers take quite the opposite position. They maintain that threats and offers can undermine the voluntariness of a person's decision-making because of their coercive force. The ‘lecherous millionaire’ case14 is often discussed in support of this claim.30 31 Here, A's child will die without expensive surgery that she cannot afford and for which the state will not pay. B, a millionaire, offers to pay for the surgery if A becomes his mistress. Feinberg contends that B's offer manipulates A's options in such a way that A has no choice but to comply with the terms of the proposal in order to avoid an alternative that she finds unacceptable. While we agree that B's offer is ethically problematic, the wrong of B's manipulation of the choice options available to A is not captured by any interference by B on A's ability to make a decision between these choices. On our view, A remains able to decide whether she becomes B's mistress.

Similarly, in Shakespeare's Measure for Measure, Isabella refuses to have sex with Angelo even though he offers to save her brother's life if she does so. “Better it were a brother died at once, than that a sister, by redeeming him, died forever… More than our brother is our chastity.” (Act 2, Scene IV) is her response to Angelo's proposal. This response captures something important about the reason for rejecting the argument that proposals such as this can undermine voluntariness. It is precisely at times when our choices are restricted in some important way that the shape of the answers to the questions ‘what do I want?’, ‘what do I value?’, ‘what is important to me?’ are at the forefront of our minds and become most apparent to us. Thus, rather than being unable to resist making considered decisions in light of such offers, these offers require us to scrutinise, examine and develop our commitments, values and priorities in life.

We agree with other commentators that the wrong in the lecherous millionaire case and others should not be understood in terms of coercion, but rather in terms of B's exploitation of A.32 33 In other words, this is a case of sexual exploitation, not one of coercion in which a person's decision-making is rendered involuntary.

In the context of community mental healthcare, the only consideration relevant to the voluntariness of the patient's decision to accept an offer is to ascertain whether the patient's psychopathology limits her agency. In the context of offers, this is an issue that will be relevant specifically to patients with drug dependencies, rather than those with long-term affective or psychotic illnesses. It is also a complex question and one on which there are many conflicting views. On the one hand, it is argued that ‘internal influences’ can render a person's action involuntary because such an action will not be intentional. This is because the action is causally determined by a desire over which the person has no effective control.34 On the other hand, it is argued that drug-orientated desires are formed in an identical way to regular desires and, therefore, that drug dependency does not impact on the voluntariness of action.35 36 Most importantly, for our argument here, is that, even if we accept the analysis of Nelson and colleagues, it is difficult to imagine a situation in which making an offer that the patient cannot decide to accept voluntarily would not constitute a breach in the duty of care (and that, accordingly, the offer ought to be identified as a threat).

Separate to the issue of voluntariness is the issue of the patient's decision-making capacity. While Szmukler and Appelbaum1 consider decision-making capacity at length in their analysis of treatment pressures, it is unlikely that decisional capacity will be at issue in the types of offer we are considering. This is because these offers are being made specifically with the aim of influencing the patient's decision. It will be uncommon in clinical practice, therefore, for the patient to lack the capacity to decide whether or not to accept the offer.

Do offers raise problems of value incommensurability?

Szmukler2 has raised a further ethical issue: that offering financial rewards to encourage treatment adherence raises problems of value incommensurability. Recognising that resource allocation considerations mean that healthcare encounters are necessarily commodified, Szmukler identifies the incommensurable values as money and patients' competent decisions made in light of their considered interests. On his argument, it is wrong to offer money to patients because the intrinsic value of a patient making her own considered decision is incommensurate with such an instrumental value. By seeking to replace the value of a patient's considered decision with an incommensurable value, practitioners act wrongly because they fail to show due respect to that patient qua person.

There are two main objections to this argument. The first is to deny that the two values are incommensurate. We frequently weigh up different interests when making decisions in our lives and on many occasions such interests will reflect instrumental values. For example, the supermarket owner who makes a two-for-one offer may influence purchasing decisions but it would be incorrect to conclude that the value in a customer making her own decision had, in some way, been contaminated precisely because a weighing up of financial considerations could lie at the heart of the decision that she has made. The second objection is that, even were the values incommensurate, it does not follow that introducing an instrumental value into the decision-making process fails to show the patient respect. Indeed, if the effect of a decision to withdraw from treatment means that a patient requires increased levels of support in the future and becomes unable to act upon her interests, giving ethical primacy to a narrow, ‘in-the-moment’ refusal of treatment rather than the broader scope of the duties of care that shape the provision of treatment could itself be considered to fail to show due respect to the person.

Step 1

The first step is to decide whether the proposal is a threat or an offer. In distinguishing a threat from an offer it is necessary to clarify, independently of the proposal, what duties the service owes the particular patient. Establishing such duties is a general responsibility of health practitioners, teams and services. The duties will depend on how ethical values are interpreted and applied in practice and will vary between different mental healthcare systems, between services within a system and between different patients in a service.

Having established the duties of care, the key question is whether the proposal, if accepted, or not accepted, will lead to an outcome consistent with the practitioner having failed to act in line with these duties. If this is the case, then the proposal is a threat and should not be made. If this is not the case, then the proposal is an offer. If the proposal is an offer then further issues need to be considered before an ethical judgement is made (steps 2–5).

Step 2

Once a proposal has been identified as an offer, the second step asks: is the offer likely to be unwise? This question focuses particularly on consequences, both for the specific patient and for others. Although the offer might be of value to the patient in the short term, it may have longer-term detrimental effects for that patient, or detrimental effects on other patients.

Step 3

The third step asks: does the offer exploit the patient? The key consideration is whether there are benefits to the health professionals, or system, if the patient accepts the offer. In making the final judgement about the ethical status of the offer it will be important to separate benefits to the patient from benefits to the professionals and system.

Step 4

The fourth step asks: does the offer raise broader questions of fairness? At the micro level the question is whether the offer treats other patients in the relevant service fairly. At the macro level the question is whether the offer represents a good use of healthcare resources.

Step 5

The last step asks: does the offer compromise the voluntariness of the patient's decision-making? The main issue here is to ascertain if there is any way that the patient's psychopathology impacts upon on her agency such that her decision to accept the offer would not be a voluntary decision. The attractiveness of the offer per se (we have argued) does not affect voluntariness.

Having taken steps 2–5, the ethical issues relevant to the decision as to whether it is right or not to make the offer should have been identified. The fact that there are ethical problems with the offer does not necessarily mean the offer is unethical. In the case of offers (as opposed to threats) the overall anticipated benefits of making the offer will need to be balanced against the ethical problems identified. Here, judgement is required.

This framework does not provide an algorithm, but it does provide practitioners with a practical tool for making decisions. Because the normative considerations that are salient within this framework are generally those with which practitioners are familiar—professional duties of care, foreseeable consequences and decision-making capacity—such a framework is likely to be useful for the practice of community mental healthcare. The judgements that need to be made require considerable understanding of the patient and they will often best be made after integrating information from several sources. The case conference might be an appropriate setting within which this framework is applied. However, it is important to recognise that this framework will need to be applied pragmatically in light of the evidence available and must be subject to continual reassessment as the contextual factors relevant to making judgements about each step within the framework change.