In a paper I’ve mentioned here before, Pierre LeMorvan and Barbara Stock discuss a moral dilemma that arises from the ubiquity, in health care, of what they call “the medical learning curve.” The idea is that neophyte health care workers face a learning curve that puts patients at risk: the earlier I am in my career as a health care worker, the less skilled and knowledgeable I’m apt to be, and the more prone to error. The more error-prone I am, the more likely to impose medically dangerous risks on patients. Since health care workers need to practice their knowledge and skills on patients in order to achieve proficiency, this situation is ineliminable, even with the best supervision by more experienced practitioners.
If I’m a neophyte surgeon, for instance, I have to practice surgery on actual patients. Even if I do so under the supervision of a more experienced surgeon, the fact remains that in many or most cases, only one surgeon can actually perform the surgery–by hypothesis, me, the neophyte. The supervisor only steps in if the neophyte makes a mistake or needs help–i.e., at the precise moment when the neophyte has already imposed extra risk on the patient. But the overall medical set-up can’t in principle be controlled in such a way as to eliminate the risks presented by neophytes’ need to master the learning curve in the first-person, in vivo, on actual risk-bearing patients.
LeMorvan and Stock argue (plausibly, though not conclusively) that this medical need seems at least prima facie to violate the Kantian injunction always to treat persons as ends-in-themselves, and never as mere means. The neophyte needs to master the learning curve, but mastering the learning curve requires treating patients as mere means. Either we eliminate the risk imposed by the learning curve, or we modify or reject the Kantian constraint against treating others as mere means. No matter how we slice it (so to speak), we face a problem that requires resolution.
As a health care worker, I happened to get the Pfizer-BioNTech COVID-19 vaccine this past Friday. Because we were informed early in the week that it would be available, I was able to overhear maybe a dozen conversations in the hallway or break room among my co-workers about whether or not to get it, and if so, when. Many of the people I overheard or spoke with said that they were willing to get the vaccine, but only after others had first gotten it, the idea being to wait and see whether the first-comers suffered adverse side-effects from the vaccine. In a very clear and explicit way, these would-be latecomers were saying that they wanted to exploit (or more neutrally, rely on) the risk-calculus of the first-comers, using them as experimental vaccine subjects before deciding whether or not to get the vaccine themselves.
At some level, this may well seem morally unproblematic. The first-comers received the vaccine under conditions of explicit, informed consent. We all got several emails explaining the process of getting the vaccine, plus the pros and cons of getting it, along with an account of the knowns and unknowns of getting it. We then received a 5+ page hard copy “Fact Sheet for Recipients and Caregivers” explaining the basics, with links to websites that went into more detail. I read the whole thing through and found it clear, to the point, and unobjectionable. We were also required, more than once, to give explicit, signed consent to get the vaccine (I lost count of how many times it ended up being, but I seem to recall at least three separate occasions).
So it might seem implausible to think that the would-be latecomers were treating the first-comers as mere means: the first-comers were consenting to the vaccine and assuming the risks of getting it; the would-be latecomers were assuming a “watch and wait” posture on that consenting behavior. That may be a case of the one group treating the other as a means, but not as mere means, with informed consent and voluntarily-assumed risk differentiating the one thing from the other. You can’t be treated as a mere means (one might think) if you explicitly consent to being treated a certain way.
Fair enough,* but I do think there’s something at least slightly morally dodgy about the would-be latecomers’ approach. Take the case in which I refuse to take the vaccine because I think the risks of taking it are generally too high. Recall that the vaccine was released for distribution under an Emergency Use Authorization (EUA) that involved a waiver of FDA approval. So the release was a dramatic departure from the usual protocols. Suppose I happen to believe that the usual non-emergency protocols are a necessary condition for a proper assessment of the risks of taking a vaccine (any vaccine), and then infer that vaccines released under EUA waivers are ipso facto overly risky to take.
Notice that what I believe in this case is that I should not get the vaccine because no one should get it: my refusal to get it follows, not from some idiosyncratic fact about me, but from a set of entirely general facts applicable to humans qua humans, or human patients qua patients (or some medically general category broader than “me”). In this case, it seems like there’s something morally problematic about my relying on others’ getting the vaccine, especially if I cheerfully encourage them to take it, while also believing that no one should be taking it. It’s as though I were to say:
Yeah, definitely: take some of that shit that I would never take, so that I can see whether you die or get paralyzed or HIV from it. If you do, I won’t take it; if you don’t, I’ll consider taking it. Meanwhile, I’ll congratulate you for taking it while concealing the fact that I regard you as a human guinea pig of sorts.
If this attitude amounts to moral delinquency, many, many people out there are morally delinquent.
What is the delinquency? How do we characterize it? It probably isn’t a case of treating someone as a mere means. Perhaps it’s an invidious case of exploitation? Or of free-riding? Sort of, but not quite. I can’t think of a term or formulation that perfectly fits the bill. I just know moral trouble when I see it.
I can’t say that I’m all that exercised about this. I find it interesting, but feel little indignation or outrage. You could, after all, plausibly accuse people like me–health care workers facing moderate risk, in First World countries where the vaccine is readily available–of monopolizing the earliest doses of the vaccine. But hell, somebody’s got to get the earliest doses, right? I’m grateful for the fact that one of those people is me. As for guilt, well–that’s not a side-effect I’ve experienced. But I’ll keep you-all posted if I experience any. LOL.
*I say “fair enough” simply for expository purposes, to get from the one topic to the next in the post, but it isn’t really clear to me that consent is a sufficient condition for not treating someone as a mere means. In other words, it seems possible to treat a consenting person as a mere means. At any rate, it seems obvious (to me) that a person can be treated unjustly even if she consents to the mistreatment. But discussing this complication here would have taken me too far afield.
I want to express my gratitude to everyone involved in the production and release of the vaccine, from Pfizer-Biontech down to the Hunterdon Medical Center ER. This post was written solely to express my personal views, and is not intended represent the views of Hunterdon Healthcare, any of its affiliates, or any department or unit within the Hunterdon Healthcare organization (including the HMC OR, where I’m employed).
And no, I’ve suffered no side-effects whatsoever.
Postscript, January 10, 2021: I got the second dose on January 6. No side effects, not even the proverbial “sore arm.”