When Not to Even Ask: A Defense of Choice-Masking Nudges in Medical Research

37 Pages Posted: 27 Sep 2021

See all articles by Susanna McGrew

Susanna McGrew

Government of the United States of America - Department of Clinical Bioethics

Sarah Raskoff

Government of the United States of America - Department of Clinical Bioethics

Benjamin Berkman

Department of Bioethics, National Institutes of Health

Date Written: August 20, 2021

Abstract

In this article, we examine the legality and ethics of a controversial but widespread practice in clinical research: choice-masking nudges. A choice-masking nudge (CMN) exists when a research team explicitly obscures a meaningful choice from participants by presenting a default decision as the standard way forward. Even though an easy-to-use opt-out mechanism is available for participants who independently express concerns with the standard default, the fact that a default has been pre-selected is not made obvious to research participants. To opt out of the nudge, a participant would need only to ask the researchers to receive non-standard treatment. We argue that use of such nudges in medical research can be justified by their individual, collective, and social benefits, provided that they respect autonomy and satisfy our four further acceptability conditions. The Article is organized as follows. In Part II, we provide background on nudging and explain how our proposed CMNs fit into the large existing literature on nudging and libertarian paternalism. In Part III, we explain how the reasonable person standard as employed by US research regulations can be used to support CMNs. In Part IV, we anticipate some of the strongest objections to CMNs by explaining how CMNs are compatible with a wide range of plausible accounts of autonomy. Finally, in Part V, we discuss four additional core considerations an acceptable CMN must meet: legitimate policy goals; benefits outweighing harms; burdens distributed fairly; and absence of ethically superior feasible alternatives. In light of those considerations, we analyze three existing controversies in medical research that involve CMNs and show how each would benefit from the conceptual clarity offered by our analytic framework. Medical research is complicated and can be difficult for participants to understand; thoughtfully designed CMNs can play an important role in gently guiding large numbers of research participants toward decision outcomes that really are best for them and their communities.

Note:
Funding Information: This research was supported in part by the National Institutes of Health Clinical Center and the Intramural Research Program of the National Human Genome Research Institute.

Declaration of Interests: The authors have no financial, personal, academic, or other conflicts of interest in the subject matter discussed.

Keywords: research ethics, nudging

Suggested Citation

McGrew, Susanna and Raskoff, Sarah and Berkman, Benjamin, When Not to Even Ask: A Defense of Choice-Masking Nudges in Medical Research (August 20, 2021). Journal of Health Care Law & Policy, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3908716

Susanna McGrew (Contact Author)

Government of the United States of America - Department of Clinical Bioethics ( email )

Warren G. Magnuson Clinical Center
Bethesda, MD 20895-1156
United States

Sarah Raskoff

Government of the United States of America - Department of Clinical Bioethics ( email )

Warren G. Magnuson Clinical Center
Bethesda, MD 20895-1156
United States

Benjamin Berkman

Department of Bioethics, National Institutes of Health ( email )

9000 Rockville Pike
Bethesda, MD 20892
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
72
Abstract Views
251
rank
430,945
PlumX Metrics