Monday, September 7, 2015

LD Sep/Oct 2015 - Adolescent Right to Make Medical Choices - Affirmative Position


Resolved: Adolescents ought to have the right to make autonomous medical choices.


Click here for part one of this analysis.



Affirmative Position

Let's consider some observations based up the wording of the resolution and anticipating certain counter-arguments.

First, the resolution asks us to consider granting the right to make medical choices to adolescents as a general principle.  There are no specific locales or jurisdictions specified, no particular nation, no particular cultural identities to consider. Conversely, there is no reason we can not isolate particular nations, cultures or jurisdictions as examples.

Second, we can take the position that adolescents who have the right do not necessarily have to exercise it.  The right to make autonomous medical decisions is a positive right and like many positive rights, one may choose not to exercise the right. So in this case the adolescents may still decide to allow their parents or others make the final decision. Related to this view, adolescents with the right may still consult with their parents, guardians or peers and seek advice from a number of sources. The fact an individual seeks consultation or advice does not harm autonomy since in the end the individual's final decision is the one that counts and is the one that cannot be overturned by a parent or guardian. (Of course in the U.S. even adult decisions can be challenged and ultimately reviewed by a court!).

Third, we must allow that not all situations that can be contrived in this debate are conducive to rational decision making.  Sometimes individuals are required to make very difficult medical decisions under very stressful or emotional conditions which may impede one's ability to make good decisions. But there is nothing unique about this with respect to adults versus adolescents.  Adults also face the same difficulties and in some cases may be so emotionally invested in their children, they make poor choices believing they are doing what is best for them.

Fourth, we must deal with the fact that medical treatments cost money and certainly cost is one of the factors which impacts one's choices. Most adolescents are not financially independent and most have little knowledge about the financial details of their parents or guardians and may not comprehend the impact of their decisions on the financial well-being of their families. Hospitals and medical personnel (in the U.S.) often recommend, more costly alternative treatments or procedures with minimal additional benefit to the patient, for the purpose of reducing the liability of the staff or pay for or promote new technologies which make the facility more attractive and competitive in the medical market-place.  In my opinion, we can easily argue that financial considerations are no more difficult to comprehend than the medical choices to be made. In addition, we can refer to the second point above and decide that in those circumstances where financial impacts are an important part of the decision calculus, the adolescent is still allowed to seek advice from others, including those financially responsible.

Finally, I want to talk about the emotional maturity of you, the debater.  It is possible this debate can deal with subject matter which is difficult to discuss.  Topics like abortion, birth-control, substance abuse issues, cosmetic surgery, assisted suicide, and other medical choices which may embarrass or impact your personal beliefs or evoke emotional responses from past experiences with self or other family members.  Your ability to debate this topic, rationally and with appropriate emotional expression will go a long way toward convincing an adult judge who must decide whether adolescents are capable of making good medical choices. I don't know if I needed to say that, but I said it.


Contention Layout

Since this is the first Lincoln-Douglas debate of the season, I have decided to outline the Aff position in a way that hopefully provides some understanding of one way a case can be built (there are many ways to structure your contentions, this is one). Since we intend to defend a V/VC (Value/Value Criterion) framework, we need to isolate a value and show how it relates to the topic at hand.

First, I will prove that adolescents have capacity to make autonomous medical choices. I begin by showing there is a problem in the status quo which needs corrected, namely that current views toward adolescent consent are built upon false assumptions. Next I will show how adolescents are competent at making medical decisions.  But first, I must acknowledge the adolescent brain is still developing, but despite this fact, adolescents still have competency in making medical decisions. Now that we've shown that the resolution CAN be true, we need to show why it OUGHT to be true, and we will say it ought to be true because the resolution upholds a core value. Therefore...

Second, I will provide a link to some core value. Actually, I will provide sources which provide direct links between adolescents' (or anyones') capacity to make autonomous medical choices and several different core values to make it as easy as possible.  This "link" is very important because we can claim adolescents are capable of making good medical choices and we can talk about really important values like dignity or freedom or justice but unless we show how the claim is linked to the value, what is the point? The best you can do without a link to a value is hold to a very pragmatic, perhaps legal justification for the resolution.

Third, I will discuss how to wrap it up.


The Current Situation

While there is a predisposed belief that minors are incapable of giving informed consent for medical treatment, such presumptions ignore the reality that adolescents are already given limited decision-making rights in many states throughout the U.S. Exceptions are already made for so-called emancipated minors, those who are living on their own and supporting themselves or who may be serving in the military; as well as some who fall under mature-minor rules in which a legal authority determines a minor is capable of providing informed consent.

Hill (2012)
...all states have statutory exceptions allowing minors to consent to medical treatment for at least some purposes. For example, all fifty states and the District of Columbia allow minors to seek testing and treatment for sexually transmitted diseases (STDs) without parental consent. In addition, many states allow minors to consent on their own to substance abuse treatment, mental health services (on an outpatient basis), examination and treatment for sexual assault, prenatal care, and contraceptive services. A complex set of rules, moreover, governs minors‘ access to abortion.50 Many states require parental consent or notification before a minor can receive an abortion, but the Constitution has been interpreted to require that a minor be given the opportunity to bypass that requirement by proving to a judge that she is sufficiently mature and well-informed to make the decision without parental involvement or that the abortion would be in her best interests. [42-43]

The Supreme Court decisions granting adolescents access to abortion without parental consent suggests that within the United States, there exists a Constitutional right to bodily integrity for all individuals.

Hill (2012)
Though it does not appear that this doctrine has been widely applied in cases outside the reproductive health care context, it nonetheless seems likely that minors possess some sort of right to bodily integrity that may limit the power of the state to restrict their health care choices.91 Finally, when confinement for treatment is at issue, the Supreme Court has held that minors have a protected liberty interest and a procedural due process right not to be arbitrarily deprived of their liberty.[48]

As for parental rights, again there is a presumption parents have a right to make decisions on behalf of their children free from state coercion. Indeed, the Supreme Court has overruled some state laws regulating educational requirements granting parents authority in these situations. Nevertheless, in relation to medical choices, courts have recognized parental rights but have been reluctant to give them much legal weight. For example, parents are usually restricted from denying their children medically necessary treatments even when included with religious freedom arguments (Free Exercise Clause).

Hill (2012)
Parental rights are often invoked to argue that parents should have a right to dictate their children‘s medical decisions, but those arguments often fail. Parents generally cannot deny medically indicated care to their children—even when the parental rights claim is combined with a claim under the Free Exercise Clause. In addition, while parental rights claims are sometimes discussed in the context of state laws allocating decision-making authority over minors‘ health care, they rarely seem to make any difference to the outcome.[58]

We see the default assumptions of parental control and inability of minors to make informed consent are not necessarily valid in all circumstances. Moreover, it is doubtful challenges to these assumptions can withstand Constitutional scrutiny. However, we need not limit our investigation of the status quo to the U.S. and its Constitution.

Ruggeri, et al.(2014)
As part of an attempt to increase children's participation in decision making, Articles 12 and 13 of the United Nations Convention on the Rights of the Child specify that minors have the right to express themselves freely, be heard on all matters affecting them, and have their views taken seriously. In recent years, there has been a shift from a paternalistic medical model, where physicians and parents hold an authoritative role in determining a child's treatment, to one advocating minors' involvement in their medical treatment

Ruggeri, et al.(2014)
According to the Article 6 of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, ratified in Italy in 2001, “the opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.”

The Ruggeri, et al study was probably the first to measure the desire of children and adolescents to participate in and even decide important medical choices for themselves rather than defer the decision to a parent or the doctors. According to Ruggeri, "children and adolescents want to be involved in the decision process, even when the outcome involves serious negative consequences" (Ruggeri 2014) and their findings correlate with the research of others which claim a strong desire in adolescents in particular to be more autonomous in many important issues which affect their lives.

Ruggeri, et al.(2014)
As hypothesized (Hypothesis 1), this willingness to make autonomous decisions and not to let parents make the choice was stronger for adolescents than children. Our findings, thus, are nicely aligned with results of previous developmental research showing adolescents' greater desire for autonomous decision making in more everyday contexts with less difficult outcomes.

Adolescent Brain Development and Competence

Much scientific research is available to show that the prefrontal cortex (pfc) region of he adolescent brain is not fully developed. This region is associated with decision-making insofar as it appears to regulate impulsive behavior. While research is ongoing, the hypothesis is made "that a less-developed pfc may correlate with a lesser ability to control impulsiveness, weigh future consequences, and engage in rational, cost-benefit analysis-hallmarks of typical behavioral differences between teens and adults."(Pustilnik & Henry 2012:7). The research suggest teens are more likely to evaluate risks by considering the impact on their social life as a primary consideration. While peer-influence may play an important role in normal adolescent decision calculus, what happens when peer-pressure is not an issue?

Pusilnik & Henry (2012)
Based on these and other findings, we might expect-and data confirms-that teens are most likely to act impulsively, break the law, and make bad choices in situations where peer salience is high. When teens are on their own, however, or are structurally insulated from peer-related considerations, their cognition and decision making is equivalent or even superior to that of adults. This kind of finding could be useful in evaluating and constructing legal regimes related to adolescent decision making. [8]

While perhaps, a lesser developed prefontal cortex presupposes a tendency toward impulsive behavior, the question is are adolescents capable of making reasonable and informed decisions even if the analytical processes by which they reach decisions are substantially different than adults?

Hattab & Kohn (2007)
Weithorn and Campbell (1982), administered to 96 children and adolescents a measure developed to assess competency according to 4 legal standards. Their findings confirmed that access to formal thought was necessary for a subject to be able to consent [to medical treatment]. While minors of 14 years of age had a degree of competence identical to that of adults, children of 9 had lesser understanding of the difficulties of taking into account the various factors involved in the choice they are being asked to make. However, they were found to be capable of expressing, like adults, their preferences concerning treatments, and of participating actively in decisions. [2]

McCabe examined this question of competence against the backdrop of the legal standard for informed consent.

McCabe (1994)
There are three legal requirements for consent to medical treatment: (a) The decision must be informed, including information about the risks and benefits of alternative treatments; (b) the decision must be voluntary, or free from coercion; and (c) the individual must be "competent" (e.g., Lidz, et al., 1984; Weithom, 1984). There are actually various standards for competence, including (a) evidence of a choice; (b) a "reasonable" decision; (c) a reasonable decision-making process; and (d) the most stringent standard, "appreciation" of the information provided, with the ability to make inferences about it (Roth, Meisel, & Lidz, 1977). [506-507]

McCabe also cites several studies which confirm that even young children have some capacity to "understand simple information and ask questions". Citing the innovative Weithorn & Campbell, 1982 study, Mccabe notes that even children as young as nine years match decision outcomes with adults and minors are age 14 matched the competency level of adult groups.

McCabe (1994)
Results suggested that children in the 9-year-old group were less competent than adults in terms of the higher standards of understanding the information provided and rational reasons; not surprisingly, they used one or two concrete factors in their decisions. However, they did not differ from adults in the standards of evidence of choice or reasonable outcome; that is, they still tended to arrive at logical decisions which were similar to those of adults. In terms of all four standards, the 14-year-old group demonstrated the same level of competency as the two "adult" groups; they showed a similar level of understanding and reasoning, and made similar choices. [508]

So we conclude this contention with an excerpt from Dr. Sabrina Derrington's essay...

Derrington (2009)
With support from legal cases and professional societies this body of work has resulted in general agreement that we ought to obtain informed consent from adolescents with “appropriate decisional capacity”, usually those [greater than or equal to] 14 years, and that we should seek the assent of younger children along with informed permission of their parents.


The Value of Autonomous Medical Choice

In this part I will provide the link between the resolution and the specific values you can pick up and close the case with.  I will highlight each value in bold text.

Kettle (2002)
In moral philosophy four principles are particularly relevant to biomedical ethics: the principle for respect for autonomy (self-governance), the principle of nonmaleficence (obligation not to harm others), the principle of beneficence (obligation not to harm others and also to contribute to their welfare), and the principle of justice (fairness, equality, entitlements). For the theory of informed consent as it applies to clinical settings, the principles of respect for autonomy and beneficence are most relevant

Kettle nicely isolates several intrinsic values in this statement.  Autonomy, as a value is a clear choice since it is included in the resolution.  But, autonomy is often itself, a value which links to many others. The value of justice is often defended in Lincoln-Douglas debate conceptualized as "giving each her due" or the concept of "just desserts". In this link, Kettle suggests another conception of justice as fairness which potentially provides a connection to the philosophy of John Rawls.  The ideas of nonmaleficence and beneficence are expressions of the value of morality which provides connection to a number of moral philosophers such as Aristotle, Kant or Singer.

Hartman (2008)
Adolescents realize personal dignity in large measure by participating in decision-making processes that impact matters of importance to them and in having their participation regarded and respected by others who talk with rather than to them. An inability to express their voices and views about significant personal matters or a perception of unjust deprivations of their interests demoralizes adolescents. The demoralizing effects from withered self-concepts and damaged identities can harm adolescents in the long-term. Deprivations of dignity are not inconsequential for anyone, let alone adolescents who seem more sensitized to perceiving affronts to their abilities and hence to their worth.[87]

Hartman gives us a good connection to dignity, another core value often defended in Lincoln Douglas debate.  Dignity also links to self-worth as a valued concept which is easily connected to this resolution. Hartman also gives a back-door to justice.  By using the language "unjust deprivations" he is telling us, the denial of autonomous choices, results in demoralization, deprives them of dignity and harms their sense of self-worth. Justice (defined as giving each her due) is upheld when we avoid these deprivations by allowing adolescents to make autonomous medical choices.

Kettle (2002)
The moral philosophies of Thomas Reid, Jeremy Bentham, and Immanuel Kant provided “the normative belief about the dignity and worth of the individual that led to conceptions of morality as self-governance.” According to this view, we all have “an equal ability to see for ourselves what morality calls for and are in principle equally able to move ourselves to act accordingly, regardless of threats or rewards from others.” The two points mentioned here, an equality in determining the demands of morality and self-motivating ability to meet those demands without fearing punishment or having expectations of rewards from others, gained wide acceptance in moral philosophy to the extent that most contemporary moral philosophy simply assumes them. The significance of the notion of morality as self-governance is that it supplies a conceptual structure for “a social space in which we may each rightly claim to direct our own action without interference from the state, the church, the neighbors, or those claiming to be better or wiser than we.”

This particular link requires a thorough reading of Kettle's thesis. She spends many paragraphs, particularly with the philosophy of Immanuel Kant drawing the links between autonomy (or self-governance) and rational decision-making. In Kant's philosophy, rationality is a trait which sets humans apart as moral agents.

Hartman (2008)
The freedom for determining boundaries of bodily integrity and the dignity that is derived from decision making about one's body, whether adult or adolescent, involve liberty interests that trigger procedural safeguards. Minimally, this includes the due process essentials of fairness, impartiality, and orderliness required by the Court in [re:] Gault whenever minors' liberty interests are implicated. By explicitly including minors in due process's protections, the Court implied that adolescents, like adults, must experience an ethic of mutual respect and self-esteem-in a word, dignity." One could even say that dignity is the most fundamental of all values anchored in the liberty protections of the Due Process Clause.(86)

Again, Hartman strongly links adolescent choice with dignity along with bodily integrity which is the idea that our body is our property (a natural right) and only we can decide what should be done with it. The main theme of Hartman's paper deals with the implications of the Supreme Court decision re Gault, 387 U.S. 1 (1967) which extended due process rights to juveniles accused of crimes. It is significant as one of several SCOTUS decisions which established constitutional rights and protections for minors and as Hartman clarifies, implies adolescents are constitutionally due "mutual respect and self-esteem". Hartman provides the link to civil liberties as well from which we can extract liberty as a conceptual value or specific liberties expressed in the U.S. Bill of Rights.

Kettle (2002)
Some (Beauchamp, Childress, Faden) define informed consent as autonomous authorization, which relies on the principle of respect for autonomy or autonomy as self-governance. Others (Katz, Moreno) define informed consent as the right to self determination, which is "a legal equivalent of the moral principle of respect for autonomy." The right to self-determination refers to “the right of individuals to make their own decisions without interference from others.” Some define autonomy the same way. Both definitions rely on the principle of autonomy, which Immanuel Kant envisioned as the capacity for rational action and the supreme principle of morality [1]

Finally, I will close this part of the discussion with the above snippet from Kettle's thesis. The link between informed consent and autonomy is pretty clear in her later analysis. Here again we see her express the connection between informed consent, rationality and morality and so we can conceive of a case supporting morality as a value, upheld by the value criterion of self-determination (i.e. autonomy).

The Closing

At this point in the case we make our pitch for the value and explain to the judge why it is of supreme importance she votes Affirmative because only by permitting adolescents to make autonomous medical choices do we maximize; dignity or justice or autonomy or fairness or equality or morality. Of course we do need to tell the judge why the chosen value is important to everyone, even minors. You will have no trouble finding information on chosen values and wrapping up this case by running it full circle back to the resolution, so I will leave this last little bit of work to you.  See my other links on this site which explain in detail, how to write your first case, if you've never done it before and hopefully I have given you enough of everything else in the analysis to get you off and running.


Click here for the Neg position


Sources:

Derrington, SF (2009), Advocating Autonomy: Fulfilling Our Duty to Adolescents at the End of Life, Section on Bioethics 2009 Essay Contest 1st Prize Essay, accessed Aug 18, 2015:
https://www2.aap.org/sections/bioethics/PDFs/EthicsEssayDerrington.pdf

Hartman, RG (2008), Gault's Legacy: Dignity, Due Process, and Adolescent's Liberty Interests in Living Donation, 22 Notre Dame J.L., Ethics & Pub. Pol'y 67 (2008). Accessed Aug 18, 2015 at:
http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1114&context=ndjlepp

Hattab, JY, Kohn, Y (2007), Informed Consent in Child Psychiatry – A Theoretical Review, Journal of Ethics in Mental Health (ISSN: 1916-2405), 2007, accessed Aug 18, 2015:
http://www.jemh.ca/issues/v2n2/documents/JEMH_V2N2_Article_InformedConsent.pdf

Hill, BJ (2012), "Medical Decision Making by and on Behalf of Adolescents: Reconsidering First Principles" (2012). Faculty Publications. Paper 82. Accessed Aug 18 at:
http://scholarlycommons.law.case.edu/faculty_publications/82

Kettle, NM (2002), "Informed consent: its origins, purpose, problems, and limits" (2002). Graduate Theses and Dissertations. accessed Aug. 18, 2015:
http://scholarcommons.usf.edu/etd/1523

Mccabe, MA (1994), Involving Children and Adolescents in Medical Decision Making: Developmental and Clinical Considerations, Journal of Pediatric Psychology. Vol. 21. No. 4. 1996. pp. 505-516, accessed Aug. 18, 2015:
http://jpepsy.oxfordjournals.org/content/21/4/505.full.pdf

Pusilnik, AC, Henry, LM (2012), Introduction: Adolescent Decision Making and the Law of the Horse, Journal of Health Care Law and Policy
, Vol 15 Issue 1, accessed Aug 18, 2015 at:
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2295&context=fac_pubs

Ruggeri A, Gummerum M, Hanoch Y (2014) Braving Difficult Choices Alone: Children's and Adolescents' Medical Decision Making. PLoS ONE 9(8): e103287. doi:10.1371/journal.pone.0103287, accessed Aug. 18 at:
http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0103287

3 comments:

  1. This was very helpful! :)

    ReplyDelete
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    ReplyDelete

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