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Coercive offers and research participation: a comment on Wertheimer and Miller
  1. John McMillan
  1. Correspondence to John McMillan, School of Medicine, Flinders Medical Centre, Flinders University, GPO Box 2100, Room 5E: 209, Adelaide SA 5001, Australia; john.mcmillan{at}flinders.edu.au

Abstract

Concepts such as ‘coercion’ and ‘inducement’ are often used within bioethics without much reflection upon what they mean. This is particularly so in research ethics where they are assumed to imply that payment for research participation is unethical. Wertheimer and Miller advance our thinking about these concepts and research ethics in a significant way, specifically by questioning the possibility of genuine offers ever being coercive. This commentary argues that they are right to question this assumption, however, more needs to be said about the plausible coercive offer cases and to explain the normativity of these cases.

  • Informed consent
  • research on special populations
  • social control of human experimentation

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Wertheimer and Miller1 (W&M) are right to ask hard questions about the way concepts such as ‘coercion’ are used in research ethics. The worry that some levels of payment might be ‘undue’ and ‘induce’ research participation is often expressed without much reflection about what these terms mean and their moral force. They're also right to distinguish the concern that payment might tempt some participants to make an ill-informed decision from the claim that some levels of payment might be coercive. However, I am less convinced by their reasons for rejecting the possibility of coercive offers in research. I offer two arguments for why we should continue to use this concept. First, some examples of unethical research appear to be unethical partly because they involve coercive offers. Second, Feinberg makes a more plausible case for coercive offers than W&M claim and there might be a way to ground them that they do not consider.

Arguing against Ruth Macklin's claim, W&M state that ‘how large a payment constitutes a coercive offer is one for ‘which no clear answer is forthcoming’.’1 In their view, there is a clear answer to this question—namely, that payment for research participation can never constitute a coercive offer because genuine offers cannot coerce. It doesn't follow from this claim that there can never be coercion in research, as W&M point out:If A threatens not to treat B or to withhold treatment from B unless B enrols in a research study, that might constitute coercion, since B may have a right to receive treatment from A. By contrast, A's offer of financial payment if B enrols in the study is not coercive, since B has no right to receive payment from A if B does not enrol in the study.1

The point is that for W&M a threat can be coercive when it violates B's rights. Offering B payment for research participation does not, on their account, violate B's rights. While W&M opt for a rights-based account of coercion, we might also analyse this kind of case in terms of the limitation or expansion of choices: coercive threats are aimed at constraining choices, while coercive offers, to be genuine offers, must expand the range of choices. One other point to note is that this analysis of coercion here is as a ‘normative’ notion: although coercion can be justified when there are other, more weighty moral considerations, prima facie it is a wrong.

When coercion is viewed as restricting choice or violating rights, there are good reasons for being sceptical about coercive offers and the implication that paid research participants can be coerced. Threats attempt to remove choices by making at least one of them undesirable and therefore sit more naturally alongside the idea of coercion, which also implies that choices are rendered involuntary. Offers, on the other hand, tend to create choices that otherwise would not exist. How is it possible for something to create a choice and remove a choice at the same time?

Nonetheless, it is tempting to frame the wrongs of some unethical research in this way. At Willowbrook, parents consented to their children being deliberately infected with hepatitis and admitted to a special ward where the progression of this disease could be observed and managed with γ-globulin.2 Parents were given patchy information before making this decision, so we have grounds for doubting whether their consent was adequately informed. However, even if parents had been given better information, the fact that agreeing to take part in this research meant that children would be given a place where they otherwise might not appears, intuitively, coercive.

As W&M note, coercive offers are defended by Feinberg in Harm to self.3 An example of his that they don't mention is ‘the governor and the prisoner’. Consider…a governors' proposal to a prisoner on death row that his sentence be commuted if and only if he agrees to be a subject in a medical experiment. This translates as1 if you do not agree to be an experimental subject, I will have you executed;2 if you do agree, I will commute your sentence.3

It is clear that the governor is coercing the prisoner and we have good grounds for being sceptical about the voluntariness of consent that is given under these conditions. While the governor is threatening the prisoner and this is important to this being an instance of coercion, it is doubtful that the offer in this case is a genuine offer—that is, one that is independent of the threat. If the offer to commute the prisoner's sentence is not independent of the threat of execution, then we might plausibly describe this as a coercive threat. While this would mean that it is still an instance of coercion, it would cease to be an ‘offer’ and therefore would not be analogous to the payment of research participants. A more plausible example is Feinberg's ‘lecherous millionaire’:Suppose opportunistic A holds out to unfortunate B the prospect of rescue or cure—but for a price. B is in an otherwise hopeless condition from which A can rescue her if she gives him what he wants. He will pay for the expensive surgery that alone can save her child's life provided that she becomes for a period his mistress. A thus uses his superior advantages to manipulate B's options so that she has no more choice than she would if a gunman pointed his pistol at her healthy child's head, and threatened to shoot unless she agreed to become his mistress.3

Like the prisoner, B is being coerced and has little choice but to do something that she strongly prefers not to do. As was the case for the prisoner and the parents of children at Willowbrook, this choice occurs in a context where there is a disparity in power and vulnerability. The difference between the lecherous millionaire and the prisoner is that in the latter case the governor makes a threat and in the former the millionaire does not. There's no doubt that he is taking advantage of B's vulnerability in a morally deplorable way, but he is not responsible for B's dire situation or (arguably) for helping her out of it. While it would be good if he did pay for the expensive surgery with no strings attached, he is not under an obligation (at least one that would take the form of a perfect duty) to aid her in this way. For this reason, his offer is plausibly thought of as an offer and is not parasitic upon a threat.

In a number of respects, the lecherous millionaire's offer is like the offer that was presented to the parents of children admitted to Willowbrook. The doctors at Willowbrook were not responsible for the bad situation that the parents found themselves in and, like the lecherous millionaire, didn't have an obligation (arguably) to do something else to alleviate that situation.

W&M consider the possibility that coercive offers might involve taking advantage of another's vulnerability and say:B would not agree to hire a roofer if her roof was not leaking, but B's vulnerability does not preclude her consenting to have the roofer repair the leak. The need for assistance does not preclude voluntary consent.1

This is a counterexample to the claim that whenever an arrangement is consented to and one of the parties consents because of vulnerability, the consent is non-voluntary. Fair enough, but this doesn't capture the intuition that there's something coercive about the way the doctors at Willowbrook and the lecherous millionaire took advantage of vulnerabilities. It doesn't follow from the fact that it is not always wrong to take advantage of vulnerabilities that it isn't wrong on some occasions. While none of us are likely to be happy about having to pay for repairs to a roof, having to perform this action does not wrong us in the same way that agreeing to one's children being infected with hepatitis or becoming the mistress to a lecherous millionaire would. W&M seem to think that the only way in which a coercive offer could wrong someone is by compromising the voluntariness of consent:Since Feinberg holds that a freedom-enhancing offer does not invalidate consent, and since we are interested in coercion in the research context precisely because of its effect on the validity of consent, to refer to such offers as coercive is highly misleading.1

This is hasty: their view that a genuine offer does not invalidate consent is plausible if we focus in on voluntariness as a precondition of consent. However, it is not unreasonable to suppose that there is another normative aspect to these cases, over and above the voluntariness of consent. While the parents of children at Willowbrook and the millionaire's mistress might have given consent that was voluntary and informed, they are still wronged by taking up this offer even though it might have been rational and voluntary and made them better off than they would otherwise have been. Permitting one's children to be infected with hepatitis because there are no other options for their care or agreeing to become a mistress so as to pay for life-saving surgery are actions that are likely to cause moral harm. By moral harm, I have in mind the moral damage to agents who know that the choice they have made is one that would not ordinarily be reconcilable with their status as moral agents: while circumstances might dictate that the rational thing to do is to start an affair with the millionaire or permit one's children to be infected with hepatitis, this is a significant departure from a person's normal moral baseline, and hence performing that action can damage the person's integrity as an agent. When viewed in this way, the wrongness of coercive offers has more to do with the willful creation of choices that take advantage of others' vulnerabilities when it should be known that this will cause them moral harm than it has to do with worries about voluntariness or temptation.

Macklin's suggestion that it is not clear how large a payment must be for it to be a coercive offer seems right, although this is not the only vagary surrounding coercion and research ethics. While W&M give us good reasons for being sceptical about whether the normativity of coercive offers is grounded in voluntariness, they have not made the case that they are conceptually incoherent, nor that they are not a useful lens through which to view the badness of some research. Instead of banishing coercive offers from the lexicon of research ethics, W&M have highlighted the need for further work on explaining what coercive offers are and in what sense they are wrong.

References

Footnotes

  • Competing interests None.

  • Provenance and peer review Not commissioned; externally peer reviewed.

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