APPENDIX 6: ETHICS AND BEHAVIOUR CHANGE
SEMINAR HELD AT THE HOUSE OF LORDS
10 February 2011
Members of the Sub-Committee present were Baroness
Neuberger (Chairman), Baroness O'Neill of Bengarve, Lord Patel
and the Earl of Selborne. In attendance were Daisy Ricketts (Clerk)
and Rachel Newton (Policy analyst).
The speakers were: Professor Thomas Baldwin
(Department of Philosophy, University of York); Professor Luc
Bovens (Department of Philosophy, Logic and Scientific Method,
London School of Economics); Professor Theresa Marteau (Professor of
Health Psychology, Kings College London).
Other participants were: Professor Richard Ashcroft
(School of Law, Queen Mary, University of London); Dr Bennett
Foddy (Institute for Science and Ethics, University of Oxford);
Dr Jessica Pykett (Institute of Geography and Earth Sciences
Aberystwyth University).
An introduction to ethics in policy making (Professor Thomas
Baldwin)
Professor Baldwin argued that it was a core
value of liberal societies that citizens should be treated as
rational agents, capable of taking responsibility for constructing
their own lives. He outlined JS Mill's 'harm principle': the only
reason that governments can exercise power against the will of
an individual is to prevent harm to others. This principle would
however limit the role of Government in public health to health
protection and health promotion through the provision of advice
(except where others might be harmed, as by smoking or failing
to take steps to prevent the transmission of infectious or contagious
diseases).
Professor Baldwin suggested that the example
of obesity demonstrated that the 'harm principle' would not provide
an adequate approach for Government intervention. He noted that
obesity was not an infectious disease and that, although there
had been much advice about healthy eating and exercise, rates
of obesity continued to rise. He argued that the rise in obesity
had not been caused by a collapse in personal responsibility but
rather by changes in physical and social environment (as claimed
in the Foresight report).[348]
Tackling obesity was nevertheless a matter for Government because
of its implications for the health of the population and the financial
burden on public funds. Professor Baldwin suggested therefore
that Government had a broad responsibility for the welfare of
citizens that went beyond protecting them from harm from others.
He further noted that the example of obesity highlighted the significance
of equality; child obesity was correlated very closely with social
deprivation.
The example of obesity linked three core aims for
public policy: protecting personal responsibility, dealing with
major challenges to public welfare, and promoting equality (at
least equality of opportunity for health). The stewardship model
proposed by the Nuffield Council on Bioethics (NCOB) illustrated
how these values could work together: the Government's role was
to act as 'steward' of the public environment in which individuals
can exercise responsibility for their own choices. The NCOB proposed,
in the light of this, that public policies should be seen as rungs
of a ladder, with the bottom rungs representing minimal and less
controversial interventions, and higher rungs representing more
intrusive intervention that require stronger justification.[349]
The NCOB recommended that governments should start
at the bottom of the ladder and only move to policies higher up
the ladder when a lower rung policy was not working; there was
reason to think that a higher rung policy would be more effective;
and when the goal of the policy was important enough to warrant
more intrusive intervention. Professor Baldwin noted that
the NCOB ladder had found its way into current Government policy,
including the Public Health White Paper Healthy Lives, Healthy
People.[350] It
was used in this White Paper to justify avoiding the regulation
of businesses, although the Nuffield Ladder was only intended
to apply to policies directed at individuals.[351]
Intervening to change behaviour: factors influencing
acceptability to members of the public (Professor Theresa
Marteau)
As a psychologist, Professor Marteau outlined
how what was known about human behaviour and evidence for the
effectiveness of interventions, might bear on the judgments about
the ethical acceptability of behaviour change.
Professor Marteau said that behaviour could
be explained by dual process models of human behaviour, which
distinguished between the reflective system and the impulsive
system. The model represented the reflective system as driven
by conscious decisions, taking into account considerations of
the future and requiring a high cognitive capacity. It represented
the impulsive system as driven by immediate perceptual input,
giving no consideration to the future, operating quickly and requiring
little or no conscious cognitive capacity. Professor Marteau
said it was widely agreed that much behaviour was driven primarily
by the automatic system, and was therefore closely linked to our
environment, both physical and social. Professor Marteau
outlined some experiments which demonstrated the impact of the
physical environment on behaviour.
Professor Marteau argued that those who thought
that behaviour was as driven primarily by the reflective system
often took a negative attitude towards changing the physical environment
to produce behaviour change. Conversely, those who thought that
behaviour was primarily driven by the automatic system took a
positive attitude towards intervening to change the environment,
sometimes claiming that such interventions enabled individuals
to behave as they really want to behave. Professor Marteau
noted that most people mistakenly thought that the reflective
system was most influential in causing behaviour. Psychologists
referred to this misunderstanding as the 'fundamental misattribution
error'.
Professor Marteau then discussed how evidence
of effectiveness of interventions could affect public acceptability.
She used the example of financial incentives for stopping smoking
to demonstrate that though an intervention might initially be
conceived negatively, public levels of acceptability might improve
with evidence of effectiveness. Professor Marteau offered
two examples of current policies to demonstrate that government's
trade off the effectiveness of an intervention against other considerations.
First, it was estimated that the current Government policy of
placing a very low cost price minimum on alcohol would save 27
lives per year, whereas imposing a minimum cost of 40p per unit
was estimated to save almost ten times as many lives. Secondly,
a voluntary agreement on salt reduction in the United Kingdom
achieved a reduction in average daily intake of 1g, saving 6000
lives per year by reducing cardio-vascular diseases, whereas regulation
that reduced the average daily intake by 4g would, it was estimated,
save 20000 lives per annum. Professor Marteau noted that
these examples raised ethical question about the other factors
which governments might consider more important than effectiveness,
and the extent to which this affected the acceptability of an
intervention.
Discussion: when, and how, is it appropriate for
the Government to intervene to change people's behaviour?
The discussion began with consideration of whether
governments could only restrict choice to prevent harm to others,
or whether they could justifiably also intervene to prevent individuals
harming themselves. It was noted that it was considered appropriate
for government to intervene to restrict children's choices because
they weren't considered to have full ability to make rational
choices.
The implications of knowledge about the automatic
and reflective system of behaviour for measures to restrict choice
were discussed. First, it was noted that understanding behaviour
demonstrated that people sometimes behave in ways which they do
not really want (for example, 77% of smokers wanted to stop smoking
and 70% of people who were obese wanted to lose weight). It was
suggested that this might explain why some policies which were
at first unpopular and considered unacceptably restrictive of
choice, became accepted, indeed welcomed when effective. This
could justify implementing unpopular policies; though a policy
might initially restrict choice, it might then allow individuals
to behave in the way they want to behave. Others noted that if
governments assumed that they knew what people 'really' wanted
better than the individuals themselves, this might be the start
of a slippery slope and could be used to justify interventions
which were not acceptable.
Secondly, some policies which restricted choice for
some enabled choice for others. For example, restricting alcohol
consumption through fiscal measures could restrict choice for
some by making it more expensive to drink, but might enable choice
for others who could walk home safely at night (assuming a reduction
in crime and anti-social behaviour as a result of reduced alcohol
consumption). Certain restrictions on individual choice limit
population harm and could be justified on Millian and many other
grounds. Alcohol, smoking and obesity also harm the population
by their cost to the NHS and, in the case of alcohol, increased
rates of crime. It could therefore be argued that tackling these
problems did prevent harm to others, so fell within the meaning
of the 'harm principle'.
The role of social norms was then discussed. It was
suggested that understanding the impact of social norms entailed
understanding automatic and reflective processes which determined
behaviour. Science had not been able to explain how and why social
norms were produced but they reflected views of what was acceptable.
For example, socials norms of alcohol consumption made interventions
in this policy area difficult. If it was understood how to create
a culture in which nobody would boast of having been "legless"
this would support, or provide an alternative to, health promotion
measures restricting access to alcohol.
Discussion: what makes a policy intervention coercive
and how is this related to the restriction of choice?
A problem found during the course of the inquiry
was outlined: those opposed to the use of legislation and fiscal
policies to change behaviour had often defended their position
by arguing that such measures were coercive. They had moreover
cited the Nuffield Ladder in support of this claim. It was noted
that in the text of the Nuffield report there was no claim that
the top of the ladder represented forms of coercion, only that
it represented more powerful or intrusive interventions. They
were however characterised as coercive in a box within the report.[352]
It was argued that a distinction should be drawn
between policies which were coercive and those which required
coercive backing. Even interventions at the bottom of the Nuffield
Ladder might require coercive backing if introduced as a matter
of public policy, for example if businesses were legally required
to provide certain information on food packaging. It was noted
that coercion was felt by many to be intrinsically bad but that
legislation was not in and of itself coercive. If legislation
was seen as coercive, then the rule of law was itself a form of
coercion. The link between coercion and financial incentives to
change health behaviour was also discussed. It was noted that
though the media sometimes described incentives as a form of coercion
or bribery, it was very difficult to "pin the coercive tail
to the incentive donkey".
The Ladder was intended as a mechanism for thinking
about issues of acceptability in the first instance; it was not
meant to be the last word on policy justification. It was suggested
that the Ladder was being asked to do more than it was capable
of doing by policy makers, particularly in the Public Health White
Paper Healthy People, Healthy Lives.[353]
Though the Ladder was useful, it only had one dimension, and so
did not reflect the complexity of policy interventions. For example,
providing information was at the bottom of the Ladder but the
provision of information could be legally required, and the requirement
would have the same coercive backing as other legislation.
Freedom of choice was discussed. It was suggested
that the Nuffield Ladder had been used by policy makers because
it fitted in with a politically "popular choice agenda".
It was noted that there was a wide range of understandings about
what sorts of choice should be protected. These included: freedom
to make equal choices, freedom to choose as we like, equal freedom
to choose as we like, or freedom as non-domination by others.
There were problems with all of these understandings of freedom,
but the conception of freedom as non-domination by others should
be given particular consideration.
Ethics and "Nudge" (Professor Luc
Bovens)
Professor Bovens first defined the concept of
nudging, citing four criteria that made an intervention a nudge:
the intervention must not restrict choice; it must be in the interests
of the person being nudged; it should involve a change in the
architecture or environment of the choice; it should exploit a
mechanism of less than fully deliberative choice. These were relevant
to judging what make a nudge permissible.
Professor Bovens noted that most people's immediate
reaction to nudging was to think that they were being manipulated.
He discussed the differences between subliminal advertising and
nudging. He noted that there were two sorts of transparency; transparency
could mean that people were told about an intervention or it could
mean that people were able to discern for themselves that an intervention
had been implemented. In the case of subliminal messaging, the
first sort of transparency makes no difference to whether the
messaging is manipulative. Similarly, for some interventions,
such as placing health food first in a cafeteria, the first sort
of transparency might prevent it from working as well. The second
sort of transparency, that a perceptive person should be able
to discern the intervention, was considered the most important
sort.
Professor Bovens highlighted four other facts
which should be considered when thinking about the ethics of nudging:
the urgency of the problem to be solved; the cost of the intervention
for responsible agents (not only financial cost but the cost,
for example, of restriction of choice or intrusiveness); the extent
to which the nudge is in the interests of the person being nudged;
the identity of the organisation doing the nudging.
Discussion: are nudges ethically acceptable?
The extent to which businesses nudge people was considered.
It was noted that experiments showed that food adverts influenced
people's behaviour in ways that they were not aware of. Adverts
exploited the same mechanisms but advertising was not generally
considered unethical, unless it was deceptive or inappropriately
targeted, for example, at children.
The justifiability of governments intervening to
change social norms was discussed. It was suggested that many
people would not be happy for government to seek to change the
culture of society. Others argued that it was legitimate for the
government to look at social norms which were already changing,
as in the case of binge drinking.
In conclusion, it was agreed that thinking about
choice was very difficult and there was a tendency to fall back
on the 'harm principle'. The problem however was that governments
would not be able to protect all choices and so they must decide
which were most important. Thinking about choice was complicated
by different conceptions of autonomy, particularly given the distinction
between automatic and reflective choices. The extent to which
autonomy should include both automatic and reflective choices
was considered. How autonomy was conceived would have a direct
impact on the acceptability of nudging, which sought to influence
automatic choices. The concepts of informed and fully informed
choices were then discussed. It was argued that there was often
hypocrisy in public policy, particularly medical ethics, about
whether only informed choices should be protected. It was agreed
that governments should think very carefully about what they what
they meant if they said that an intervention would restrict choice.
348 Tackling obesity: future choices, op.
cit. Back
349
Public health: ethical issues, op. cit. Back
350
Healthy Lives, Healthy People, op. cit. Back
351
Public health: ethical issues, op. cit. Back
352
Ibid. Back
353
Healthy Lives, Healthy People, op. cit. Back
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