A Limited Defense of Clinical Placebo Deception

60 Pages Posted: 3 Mar 2007 Last revised: 27 Jul 2015

See all articles by Adam J. Kolber

Adam J. Kolber

Brooklyn Law School; NYU School of Law

Abstract

Placebo treatments, like sugar pills and saline injections, are effective in treating pain and perhaps a host of other conditions. To use placebos most effectively, however, doctors must mislead patients into believing that they are receiving active medications. While placebo deception is surprisingly common, its legality has rarely been tested. In November 2006, the American Medical Association (AMA) adopted a new ethics provision categorically prohibiting doctors from using placebos deceptively. In so doing, the AMA shifted the legal landscape, making it almost certain that courts will decide that placebo deception violates informed consent requirements.

I argue that the AMA's new policy is overbroad, insensitive to patient preferences, and likely to have unforeseen consequences. While deception is often exploitative, placebo deception can genuinely benefit patients. Absent stronger evidence to justify a ban than we currently have, deceptive placebos should be treated as scarce medical resources--used sparingly but not categorically prohibited.

Keywords: Bioethics, Placebo, Deception, Health Law

Suggested Citation

Kolber, Adam Jason, A Limited Defense of Clinical Placebo Deception. Yale Law & Policy Review, Vol. 26, 2007; San Diego Legal Studies Paper No. 07-87. Available at SSRN: https://ssrn.com/abstract=967563

Adam Jason Kolber (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

NYU School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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