Toward a Social Bioethics Through Interpretivism: A Framework for Healthcare Ethics.

Dougherty, R., & Fins, J. (2023).

Cambridge Quarterly of Healthcare Ethics, 1-11.

doi:10.1017/S0963180123000452

Abstract

Recent global events demonstrate that analytical frameworks to aid professionals in healthcare ethics must consider the pervasive role of social structures in the emergence of bioethical issues. To address this, the authors propose a new sociologically informed approach to healthcare ethics that they term “social bioethics.” Their approach is animated by the interpretive social sciences to highlight how social structures operate vis-à-vis the everyday practices and moral reasoning of individuals, a phenomenon known as social discourse. As an exemplar, the authors use social bioethics to reframe common ethical issues in psychiatric services and discuss potential implications. Lastly, the authors discuss how social bioethics illuminates the ways healthcare ethics consultants in both policy and clinical decision-making participate in and shape broader social, political, and economic systems, which then cyclically informs the design and delivery of healthcare.

My summary: 

The authors argue that traditional bioethical frameworks, which focus on individual rights and responsibilities, are not sufficient to address the complex ethical issues that arise in healthcare. They argue that social bioethics can help us to better understand how social structures, such as race, class, gender, and sexual orientation, shape the experiences of patients and healthcare providers, and how these experiences can influence ethical decision-making.

The authors use the example of psychiatric services to illustrate how social bioethics can be used to reframe common ethical issues. They argue that the way we think about mental illness is shaped by social and cultural factors, such as our understanding of what it means to be "normal" and "healthy." These factors can influence how we diagnose, treat, and care for people with mental illness.

The authors also argue that social bioethics can help us to understand the role of healthcare ethics consultants in shaping broader social, political, and economic systems. They argue that these consultants participate in a process of "social discourse," in which they help to define the terms of the debate about ethical issues in healthcare. This discourse can then have a cyclical effect on the design and delivery of healthcare.

Here are some of the key concepts of social bioethics:

• Social structures: The systems of power and inequality that shape our society.
• Social discourse: The process of communication and negotiation through which we define and understand social issues.
• Healthcare ethics consultants: Professionals who help to resolve ethical dilemmas in healthcare.
• Social justice: The fair and equitable distribution of resources and opportunities.

The meaning of ‘reasonable’: Evidence from a corpus-linguistic study

Lucien Baumgartner & Markus Kneer

In Kevin P. Tobia (ed.), The Cambridge 

Handbook of Experimental Jurisprudence. 

Cambridge University Press (forthcoming)

Abstract

The reasonable person standard is key to both Criminal Law and Torts. What does and does not count as reasonable behavior and decision-making is frequently determined by lay jurors. Hence, laypeople’s understanding of the term must be considered, especially whether they use it predominately in an evaluative fashion. In this corpus study based on supervised machine learning models, we investigate whether laypeople use the expression ‘reasonable’ mainly as a descriptive, an evaluative, or merely a value-associated term. We find that ‘reasonable’ is predicted to be an evaluative term in the majority of cases. This supports prescriptive accounts, and challenges descriptive and hybrid accounts of the term—at least given the way we operationalize the latter. Interestingly, other expressions often used interchangeably in jury instructions (e.g. ‘careful,’ ‘ordinary,’ ‘prudent,’ etc), however, are predicted to be descriptive. This indicates a discrepancy between the intended use of the term ‘reasonable’ and the understanding lay jurors might bring into the court room.

From the Discussion section

Our research reports an intriguing discovery: the expression ‘reasonable’ is most often not just a straightforward descriptive term. In fact, only 17.18% of uses in our sample fall into this category.  Interestingly, other words that are commonly used to elucidate ‘reasonable’ in jury instructions, like ‘average,’ ‘ordinary,’ ‘rational,’ and ‘prudent’ are primarily descriptive. In terms of multidimensional proximity, ‘reasonable’ inhabits a very different part of the space. Considering that these terms are used somewhat interchangeably in jury instructions, our data suggests that jurors enter the courtroom with a different concept than the one intended or expected by legislators. However, it is important to keep in mind that we are not directly comparing the language of laypeople and experts and therefore cannot make direct inferences about possible differences between the two. And yet, judging from the fact that laypeople use ‘reasonable’ in a completely different way than other terms used to characterize ‘reasonable’ in the jury instructions, this suggests, at least indirectly, a certain discrepancy in language use. Furthermore, our results align with the findings by Willemsen et al. (2023) that laypeople tend to use certain terms in a more evaluative manner, compared to legal professionals—at least if the jury instructions are used as a proxy thereof. This disparity in understanding can have significant ramifications during trial, as jurors and legal professionals may not be on the same page. For a more comprehensive investigation of this discrepancy, further comparative studies are required.

A pdf is here.

My quick summary:

The authors argue that beliefs surrounding reasonableness has implications for the law. They suggest that the reasonable person standard should be interpreted as an evaluative standard, rather than a descriptive one. This would mean that jurors would be more likely to consider the social and cultural context when making their judgments about what is reasonable.

The authors also found that other terms that are often used interchangeably with "reasonable" in jury instructions, such as "careful" and "prudent," are more likely to be used in a descriptive sense. This suggests that there is a discrepancy between the way the law intends these terms to be used and the way lay jurors might understand them.

The article concludes by calling for more research on the meaning of "reasonable" in the context of the law. The authors argue that this research could help to improve the fairness and accuracy of the legal system.

US prison labor is cruel and pointless legalized slavery.

Dyjuan Tatro

The Guardian

Originally posted 22 Sept 23

Here is an excerpt:

It costs New York around $70,000 a year in taxpayer money to imprison someone. It costs the BPI about $10,000 a year to educate an incarcerated student. New York’s recidivism rate is 40%, while graduates of the BPI and similar programs recidivate at only 4%, a tenfold decrease. Yet, despite its clear positive record, only 300 of New York’s 30,000 incarcerated people are enrolled at the BPI in any given semester. I was one of a lucky few.

Prisons are designed to warehouse, traumatize and exploit people, then send them back home in worse shape than when they entered the system. Despite having worked every day, the vast majority of people are released with no job experience, no references and no hope. Some would take this to mean that the system is failing. And it is with regard to public safety, rehabilitation and justice, but it’s horrifyingly successful at two things: guaranteeing jobs for some and perpetuating slavery for others.

Over the years, I learned that prison officials were not interested in giving us fruitful educational and job opportunities that allowed us to go home and stay home. The reality is much more sinister. Prisons are a job program for officers that requires us to keep coming back.

The article is here.

Here is my summary:

The article is a personal account of the author's experience working in prison. Tatro argues that prison labor is a form of legalized slavery, and that it is cruel and pointless. He writes that his work in prison was meaningless and dehumanizing, and that it did not teach him any skills or prepare him for life outside of prison. He also argues that prison labor undermines the living standards of workers outside of prison, as businesses that use prison labor are able to pay their workers less.

Tatro's article is a powerful indictment of the US prison system, and it raises important questions about the role of labor in the rehabilitation of prisoners.

Property ownership and the legal personhood of artificial intelligence

Brown, R. D. (2020).

Information & Communications Technology Law, 

30(2), 208–234.

https://doi.org/10.1080/13600834.2020.1861714

Abstract

This paper adds to the discussion on the legal personhood of artificial intelligence by focusing on one area not covered by previous works on the subject – ownership of property. The author discusses the nexus between property ownership and legal personhood. The paper explains the prevailing misconceptions about the requirements of rights or duties in legal personhood, and discusses the potential for conferring rights or imposing obligations on weak and strong AI. While scholars have discussed AI owning real property and copyright, there has been limited discussion on the nexus of AI property ownership and legal personhood. The paper discusses the right to own property and the obligations of property ownership in nonhumans, and applying it to AI. The paper concludes that the law may grant property ownership and legal personhood to weak AI, but not to strong AI.

From the Conclusion

This article proposes an analysis of legal personhood that focuses on rights and duties. In doing so, the article looks to property ownership, which raises both requirements. Property ownership is certainly only one type of legal right, which also includes the right to sue or be sued, or legal standing, and the right to contract.Footnote195 Property ownership, however, is a key feature of AI since it relies mainly on arguably the most valuable property today: data.

It is unlikely that governments and legislators will suddenly recognise in one event AI’s ownership of property and AI’s legal personhood. Rather, acceptance of AI’s legal personhood, as with the acceptance of a corporate personhood will develop as a process and in stages, in parallel to the development of legal personhood. At first, AI will be deemed as a tool and not have the right to own property. This is the most common conception of AI today. Second, AI will be deemed as an agent, and upon updating existing agency law to include AI as a person for purposes of agency, then AI will also be allowed to own property as an agent in the same agency ownership arrangement that Rothenberg proposes. While AI already acts as de facto agent in many circumstances today through electronic contracts, most governments and legislators have not recognised AI as an agent. The laws of many countries like Qatar still defines an agent as a person, which upon strict interpretation would not include AI or an electronic agent. This is an existing gap in the laws that will likely create legal challenges in the near future.

However, as AI develops its ability to communicate and assert more autonomy, then AI will come to own all sorts of digital assets. At first, AI will likely possess and control property in conjunction with human action and decisions. Examples would be the use of AI in money laundering, or hiding digital assets by placing them within the control and possession of an AI. In some instances, AI will have possession and control of property unknown or unforeseen by humans.

If AI is seen as separate from data, as the software that processes and interprets data for various purposes, self-learns from the data, makes autonomous decisions, and predicts human behaviour and decisions, then there could come a time when society will view AI as separate from data. Society may come to view AI not as the object (the data) but that which manipulates, controls, and possesses data and digital property.

Brief Summary:

Granting property ownership to AI is a complex one that raises a number of legal and ethical challenges. The author suggests that further research is needed to explore these challenges and to develop a framework for granting property ownership to AI in a way that is both legally sound and ethically justifiable.

I Have a Question for the Famous People Who Have Tried to Apologize

Elizabeth Spiers

The New York Times - Guest Opinion

Originally posted 22 September 23

Here is an excerpt:

As a talk show host, Ms. Barrymore has been lauded in part for her empathy. She is vulnerable, and that makes her guests feel like they can be, too. But even nice people can be self-centered when they’re on the defensive. That’s what happened when people objected to the news that her show would return to production despite the writers’ strike. In a teary, rambling video on Instagram, which was later deleted, she spoke about how hard the situation had been — for her. “I didn’t want to hide behind people. So I won’t. I won’t polish this with bells and whistles and publicists and corporate rhetoric. I’ll just stand out there and accept and be responsible.” (Ms. Barrymore’s awkward, jumbled sentences unwittingly demonstrated how dearly she needs those writers.) Finally, she included a staple of the public figure apology genre: “My intentions have never been in a place to upset or hurt anyone,” she said. “It’s not who I am.”

“This is not who I am” is a frequent refrain from people who are worried that they’re going to be defined by their worst moments. It’s an understandable concern, given the human tendency to pay more attention to negative events. People are always more than the worst thing they’ve done. But it’s also true that the worst things they’ve done are part of who they are.

Somehow, Mila Kunis’s scripted apology was even worse. She and Mr. Kutcher had weathered criticism for writing letters in support of their former “That ’70s Show” co-star Danny Masterson after he was convicted of rape. Facing her public, she spoke in the awkward cadence people have when they haven’t memorized their lines and don’t know where the emphasis should fall. “The letters were not written to question the legitimacy” — pause — “of the judicial system,” she said, “or the validity” — pause — “of the jury’s ruling.” For an actress, it was not a very convincing performance. Mr. Kutcher, who is her husband, was less awkward in his delivery, but his defense was no more convincing. The letters, he explained, were only “intended for the judge to read,” as if the fact that the couple operated behind the scenes made it OK.

The article is paywalled here.

Here are my observations about the main theme of this article:

Miller argues that many celebrity apologies fall short because they are not sincere. She says that they often lack the essential elements of a good apology: acknowledging the offense, providing an explanation, expressing remorse, and making amends. Instead, many celebrity apologies are self-serving and aimed at salvaging their public image.

Miller concludes by saying that if celebrities want their apologies to be meaningful, they need to be honest, take responsibility for their actions, and show that they are truly sorry for the harm they have caused.

I would also add that celebrity apologies can be difficult to believe because they often follow a predictable pattern. The celebrity typically issues a statement expressing their regret and apologizing to the people they have hurt. They may also offer a brief explanation for their behavior, but they often avoid taking full responsibility for their actions. And while some celebrities may make amends in some way, such as donating to charity or volunteering their time, many do not.

As a result, many people are skeptical of celebrity apologies. They see them as nothing more than a way for celebrities to save face and get back to their normal lives. This is why it is so important for celebrities to be sincere and genuine when they apologize.

The Young Conservatives Trying to Make Eugenics Respectable Again

Adam Serwer

The Atlantic

Originally posted 15 September 23

Here are two excerpts:

One explanation for the resurgence of scientific racism—what the psychologist Andrew S. Winston defines as the use of data to promote the idea of an “enduring racial hierarchy”—is that some very rich people are underwriting it. Mathias notes that “rich benefactors, some of whose identities are unknown, have funneled hundreds of thousands of dollars into a think tank run by Hanania.” As the biological anthropologist Jonathan Marks tells the science reporter Angela Saini in her book Superior, “There are powerful forces on the right that fund research into studying human differences with the goal of establishing those differences as a basis of inequalities.”

There is no great mystery as to why eugenics has exerted such a magnetic attraction on the wealthy. From god emperors, through the divine right of kings, to social Darwinism, the rich have always sought an uncontestable explanation for why they have so much more money and power than everyone else. In a modern, relatively secular nation whose inequalities of race and class have been shaped by slavery and its legacies, the justifications tend toward the pseudoscience of an unalterable genetic aristocracy with white people at the top and Black people at the bottom.

“The lay concept of race does not correspond to the variation that exists in nature,” the geneticist Joseph L. Graves wrote in The Emperor’s New Clothes: Biological Theories of Race at the Millennium. “Instead, the American concept of race is a social construction, resulting from the unique political and cultural history of the United States.”

Because race is a social reality, genuine disparities among ethnic groups persist in measures such as education and wealth. Contemporary believers in racial pseudoscience insist these disparities must necessarily have a genetic explanation, one that happens to correspond to shifting folk categories of race solidified in the 18th century to justify colonialism and enslavement. They point to the external effects of things like war, poverty, public policy, and discrimination and present them as caused by genetics. For people who have internalized the logic of race, the argument may seem intuitive. But it is just astrology for racists.

(cut)

Race is a sociopolitical category, not a biological one. There is no genetic support for the idea that humans are divided into distinct races with immutable traits shared by others who have the same skin color. Although qualified geneticists have debunked the shoddy arguments of race scientists over and over, the latter maintain their relevance in part by casting substantive objections to their assumptions, methods, and conclusions as liberal censorship. There are few more foolproof ways to get Trump-era conservatives to believe falsehoods than to insist that liberals are suppressing them. Race scientists also understand that most people can evaluate neither the pseudoscience they offer as proof of racial differences nor the actual science that refutes it, and will default to their political sympathies.

Three political developments helped renew this pseudoscience’s appeal. The first was the election of Barack Obama, an emotional blow to those adhering to the concept of racial hierarchy from which they have yet to recover. Then came the rise of Bernie Sanders, whose left-wing populism blamed the greed of the ultra-wealthy for the economic struggles of both the American working class and everyone in between. Both men—one a symbol of racial equality, the other of economic justice—drew broad support within the increasingly liberal white-collar workforce from which the phrenologist billionaires of Big Tech draw their employees. The third was the election of Donald Trump, itself a reaction to Obama and an inspiration to those dreaming of a world where overt bigotry does not carry social consequences.

The info is here.

Here is my brief synopsis:

Young conservatives are often influenced by far-right ideologues who believe in the superiority of the white race and the need to improve the human gene pool.  Serwer argues that the resurgence of interest in eugenics is part of a broader trend on the right towards embracing racist and white supremacist ideas. He also notes that the pseudoscience of race is being used to justify hierarchies and provide an enemy to rail against.

It is important to note that eugenics is a dangerous and discredited ideology. It has been used to justify forced sterilization, genocide, and other atrocities. The resurgence of interest in eugenics is a threat to all people, especially those who are already marginalized and disadvantaged.

Consent GPT: Is It Ethical to Delegate Procedural Consent to Conversational AI?

Allen, J., Earp, B., Koplin, J. J., & Wilkinson, D.

(July 25, 2023). http://dx.doi.org/10.2139/ssrn.4520613

Abstract

Obtaining informed consent from patients prior to a medical or surgical procedure is a fundamental part of safe and ethical clinical practice. Currently, it is routine for a significant part of the consent process to be delegated to members of the clinical team not performing the procedure (e.g. junior doctors). However, it is common for consent-taking delegates to lack sufficient time and clinical knowledge to adequately promote patient autonomy and informed decision-making. Such problems might be addressed in a number of ways. One possible solution to this clinical dilemma is through the use of conversational artificial intelligence (AI) using large language models (LLMs). There is considerable interest in the potential benefits of such models in medicine. For delegated procedural consent, LLM could improve patients’ access to the relevant procedural information and therefore enhance informed decision-making.

In this paper, we first outline a hypothetical example of delegation of consent to LLMs prior to surgery. We then discuss existing clinical guidelines for consent delegation and some of the ways in which current practice may fail to meet the ethical purposes of informed consent. We outline and discuss the ethical implications of delegating consent to LLMs in medicine concluding that at least in certain clinical situations, the benefits of LLMs potentially far outweigh those of current practices.

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Here are some additional points from the article:

• The authors argue that the current system of delegating procedural consent to human consent-takers is not always effective, as consent-takers may lack sufficient time or clinical knowledge to adequately promote patient autonomy and informed decision-making.
• They suggest that LLMs could be used to provide patients with more comprehensive and accurate information about procedures, and to answer patients' questions in a way that is tailored to their individual needs.
• However, the authors also acknowledge that there are a number of ethical concerns that need to be addressed before LLMs can be used for procedural consent. These include concerns about bias, accuracy, and patient trust.

Moral injury in post-9/11 combat-experienced military veterans: A qualitative thematic analysis.

Kalmbach, K. C., Basinger, E. D.,  et al. (2023). 

Psychological Services. Advance online publication.

https://doi.org/10.1037/ser0000792

Abstract

War zone exposure is associated with enduring negative mental health effects and poorer responses to treatment, in part because this type of trauma can entail crises of conscience or moral injury. Although a great deal of attention has been paid to posttraumatic stress disorder and fear-based physiological aspects of trauma and suffering, comparatively less attention has been given to the morally injurious dimension of trauma. Robust themes of moral injury were identified in interviews with 26 post-9/11 military veterans. Thematic analysis identified 12 themes that were subsumed under four categories reflecting changes, shifts, or ruptures in worldview, meaning making, identity, and relationships. Moral injury is a unique and challenging clinical construct with impacts on the individual as well as at every level of the social ecological system. Recommendations are offered for addressing moral injury in a military population; implications for community public health are noted.

Impact Statement

Military veterans who experienced moral injury—events that violate deeply held moral convictions or beliefs—reported fundamental changes following the morally injurious event (MIE). The MIE ruptured their worldview, or sense of right and wrong, and they struggled to reconcile a prior belief system or identity with their existence post-MIE. Absent a specific evidence-based intervention, clinicians are encouraged to consider adaptations to existing treatment models but to be aware that moral injury often does not respond to treatment as usual for PTSD or adjacent comorbid conditions.

The article is paywalled, with the link noted above.

My addition:

The thematic analysis identified 12 themes related to moral injury, which were grouped into four categories:

• Changes in worldview: Veterans who experienced moral injury often reported changes in their worldview, such as questioning their beliefs about the world, their place in it, and their own goodness.
• Changes in meaning making: Veterans who experienced moral injury often struggled to make meaning of their experiences, which could lead to feelings of emptiness, despair, and hopelessness.
• Changes in identity: Veterans who experienced moral injury often reported changes in their identity, such as feeling like they were no longer the same person they were before the war.
• Changes in relationships: Veterans who experienced moral injury often reported changes in their relationships with family, friends, and others. They may have felt isolated, misunderstood, or ashamed of their experiences.

Police are Getting DNA Data from People who Think They Opted Out

Jordan Smith

The Intercept

Originally posted 18 Aug 23

Here is an excerpt:

The communications are a disturbing example of how genetic genealogists and their law enforcement partners, in their zeal to close criminal cases, skirt privacy rules put in place by DNA database companies to protect their customers. How common these practices are remains unknown, in part because police and prosecutors have fought to keep details of genetic investigations from being turned over to criminal defendants. As commercial DNA databases grow, and the use of forensic genetic genealogy as a crime-fighting tool expands, experts say the genetic privacy of millions of Americans is in jeopardy.

Moore did not respond to The Intercept’s requests for comment.

To Tiffany Roy, a DNA expert and lawyer, the fact that genetic genealogists have accessed private profiles — while simultaneously preaching about ethics — is troubling. “If we can’t trust these practitioners, we certainly cannot trust law enforcement,” she said. “These investigations have serious consequences; they involve people who have never been suspected of a crime.” At the very least, law enforcement actors should have a warrant to conduct a genetic genealogy search, she said. “Anything less is a serious violation of privacy.”

(cut)

Exploitation of the GEDmatch loophole isn’t the only example of genetic genealogists and their law enforcement partners playing fast and loose with the rules.

Law enforcement officers have used genetic genealogy to solve crimes that aren’t eligible for genetic investigation per company terms of service and Justice Department guidelines, which say the practice should be reserved for violent crimes like rape and murder only when all other “reasonable” avenues of investigation have failed. In May, CNN reported on a U.S. marshal who used genetic genealogy to solve a decades-old prison break in Nebraska. There is no prison break exception to the eligibility rules, Larkin noted in a post on her website. “This case should never have used forensic genetic genealogy in the first place.”

A month later, Larkin wrote about another violation, this time in a California case. The FBI and the Riverside County Regional Cold Case Homicide Team had identified the victim of a 1996 homicide using the MyHeritage database — an explicit violation of the company’s terms of service, which make clear that using the database for law enforcement purposes is “strictly prohibited” absent a court order.

“The case presents an example of ‘noble cause bias,’” Larkin wrote, “in which the investigators seem to feel that their objective is so worthy that they can break the rules in place to protect others.”

The story is here.

My take:

Forensic genetic genealogists have been skirting GEDmatch privacy rules by searching users who explicitly opted out of sharing DNA with law enforcement. This means that police can access the DNA of people who thought they were protecting their privacy by opting out of law enforcement searches.

The practice of forensic genetic genealogy has been used to solve a number of cold cases, but it has also raised concerns about privacy and civil liberties. Some people worry that the police could use DNA data to target innocent people or to build a genetic database of the entire population.

GEDmatch has since changed its privacy policy to make it more difficult for police to access DNA data from users who have opted out. However, the damage may already be done. Police have already used GEDmatch data to solve dozens of cases, and it is unclear how many people have had their DNA data accessed without their knowledge or consent.