In this post, we will review Jessica Flanigan’s thoughtful essay on “Libertarianism and medicine,” published in the new Routledge Handbook of Libertarianism. (Dr Flanigan is an ethicist at the University of Richmond.) Professor Flanigan points out a potential asymmetry in the way the market for medical services is regulated. On the one hand, we have the doctrine of informed consent: doctors are not allowed to mislead, trick, coerce, or force their patients to undergo treatments they don’t want. But at the same time, the right of doctors to prescribe certain drugs or treatments–as well as the right of patients to obtain new drugs or treatments–is severely restricted, regardless of whether there is consent or not. Specifically, the FDA–in the name of health and safety–has the power to veto doctor and patient decisions, or as our friend and colleague Alex Tabarrok has so often noted (Tabarrok, an economist at George Mason U, has written extensively about the FDA’s paternalistic policies), the FDA may flat out prohibit doctors from providing risky treatments and experimental therapies, even when patients are willing to consent to such treatments or therapies. On balance, we agree with Flanigan’s (and Tabarrok’s) libertarian critique of the FDA: patients should be free to make their own choices, even risky ones. That said, however, why should the moral concept of consent trump the need for ex ante, third-party (non-patient) measurement of the harms and benefits of new treatments? In the alternative, might there not be an optimal amount of paternalism in medical markets? After all, just as the doctrine of informed consent does not apply to medical emergencies, one could argue that the market for medical services requires some level of oversight and some restrictions in order to prevent doctors and drug companies from exploiting severely ill patients. We have to draw a line somewhere; the question, as always, is where?
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