Alternatives to Prescribing

The thought of eliminating prescription writing and making all pharmaceuticals available over the counter probably seems radical to many. Surely, however, for anyone who accepts the moral power of the ethical principle of autonomy, such an option must be considered. Let us consider two policy options, one a more purely libertarian view that elevates autonomy to a central place, at least taking precedence over strong paternalism that would attempt to protect drug consumers from their own poor choices, and another that retains some features of moral paternalism while coming to terms with the recognition that prescription writing requires a value judgment about which clinicians cannot be presumed expert.

The Libertarian Option

The first possible policy we can call the “libertarian option.” It is firmly grounded in the ethical principle of autonomy. It is the policy already in place for chemicals like alcohol, tobacco, and warfarin for pest control. Competent adults would be free to purchase drugs on the open market. They would, of course, also have the moral responsibility to become educated consumers learning about the evidence that the drug is effective (for which they might rely on websites such as those of NIH or WebMD), even if there would be no legal requirement that they become so educated. They would also be able to consult experts and would, for serious drug choices, presumably want to talk to their physician. In doing so, however, they would rely on these sources for knowledge of the medical facts, or, if they asked for advice, they would do so after making a judgment about whether the source’s value judgments should be relied upon.

Libertarians since the days of John Stuart Mill (1956 [1859]) have recognized that the individual’s autonomy-based rights to consume something like a drug must be limited by the “harm to others” principle. Even a libertarian should accept the need for controls on methamphetamine and probably narcotics—drugs that pose a risk to third parties. This could be the basis for restricting purchase of a drug like pseudoephedrine. In our liberal democracy, we actually tolerate liberty at a higher threshold than libertarians would. We allow individuals to do many things that harm other unwilling people, for example, smoking in public or owning a gun. These activities pose a risk to those around the practitioners, but we tolerate them because of the premium we place on autonomy. If we are consistent, we would permit patients to make drug choices even when they pose similarly modest risks to third parties. Since relatively few drugs pose significant third-party risks, this is not a serious limitation to a libertarian policy of permitting competent adults to purchase drugs without a prescription.

Also, the libertarian option would have to come to terms with the fact that some potential consumers are not competent adults. Such a policy would presumably limit purchases by children and others who are not mentally competent. Not only would children not be permitted to make purchases, but adults as well would not necessarily be permitted to make purchases for them and administer the drugs based on their own value judgments. Just as society imposes limits on the right of adults to buy and give children alcohol and tobacco, so presumably some drug-use choices made by adults for a child would also be constrained.

These constraints on the use of pharmaceuticals by both incompetent and competent persons in a way that poses significant risks to third parties are consistent with libertarian principles, in particular, the notion that it is not paternalism to take action to protect those who are not substantially autonomous or to take action when the purpose is to protect not the consumer of the drugs but rather third parties.

This is a plausible conclusion for anyone who accepts a moral theory that places the principle of autonomy over the principle of beneficence when it is used in such a way to bring benefits to one who, while substantially autonomous, does not want the presumed benefit. Still, many would find this goes too far. Some believe that, at least in extreme cases, autonomy is not a lexically ranked principle that always should take precedence over beneficence, even beneficence directed toward the one being benefited (Beauchamp and Childress 2013: 220-223 and passim). We may be worried that the libertarian option at least poses the risk that some drug-use decisionmakers will not be acting in an adequately autonomous way because they are not adequately informed or free to choose. We may also be worried that some adequately autonomous decision-makers may make such bad choices that some limited form of paternalism may be justified, that is, we may hold an ethical theory that sometimes permits the ethical principle of beneficence to take precedence over autonomy. If so, we might consider a second, more conservative policy as an alternative to the purely libertarian policy regarding the practice of prescribing.

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