Challenging the Status Quo

Dominic Wilkinson

Received: 9 March 2009 /Accepted: 12 March 2009 /Published online: 3 April 2009# Springer Science + Business Media B.V. 2009

Abstract Harold Jaffe argues that we should adoptopt-out testing for HIV. There are paternalistic andutilitarian arguments for such an approach. In thiscommentary I draw attention to some similaritiesbetween his arguments and debates about opt-outsystems of organ donation. I argue that the status quobias provides both part of the reason that opt-outapproaches work, and an explanation for why suchapproaches are sometimes resisted.

Keywords Organ transplantation/ethics . Ethics,medical . HIV. Tissue and organ procurement/ethics

In this issue, Harold Jaffe argues that the paradigm forhuman immunodeficiency virus (HIV) testing shouldchange (Jaffe 2009). Instead of offering HIV tests to

patients who are suspected to be potentially infectedfollowing informed consent, testing would be routinein populations with elevated risk—unless the patientdeclined.

Such a policy has some precedent. As Jaffe pointsout, opt-out testing is already the norm for pre-nataltesting of pregnant women in the UK. It has recentlybeen embraced as a general approach to testing forHIV by the Centers for Disease Control andPrevention (CDC) in the United States. But loweringthe consent requirement for HIV testing could beseen to threaten patient autonomy. After all, thereason to switch to opt-out testing is that morepatients will end up being tested. Some of thisincrease may relate to more patients being offeredtesting. But there are also likely to be some patientstested under an opt-out system who would havedeclined consent for testing if offered in theconventional way. Such patients might not under-stand what testing involves, or may not feel able torefuse the test.

Why, then, should we make the change? Jaffepresents two main arguments in favour of opt-outtesting (Jaffe 2009). Identifying patients as being HIVpositive enables them to receive anti-retroviral drugsthat reduce their risk of HIV-related morbidity andmortality. It would thus be better for patients if theyfound out their HIV status than if they remainedignorant. This is the paternalistic argument for opt-out HIV testing.

Bioethical Inquiry (2009) 6:235–237DOI 10.1007/s11673-009-9148-3

Dominic Wilkinson is supported by an Oxford NuffieldMedical Fellowship, Eric Burnard Fellowship, and RoyalAustralasian College of Physicians Astra-Zeneca MedicalFellowship. The funders had no involvement in this work.

D. Wilkinson (*)Oxford Uehiro Centre for Practical Ethics,The University of Oxford,Littlegate House, St Ebbes,Oxford OX1 1PT, UKe-mail: dominic.wilkinson@gtc.ox.ac.uk

D. WilkinsonThe Ethox Centre, Department of Public Health andPrimary Health Care, The University of Oxford,Oxford, UK

Paternalism in medicine has a bad name. But thereare different degrees of paternalism. Opt-out testing isat worst a form of mild paternalism since patients arestill given the option of declining to be tested. Thosewho have strong preferences not to be tested arelikely to refuse. The main difference is that individ-uals who are equivocal about testing, or somewhatfearful of testing, are more likely to end up beingtested. And this same degree of paternalism operatesfor almost all other diagnostic tests (with theexception perhaps of some genetic tests). The doctoridentifies and orders investigations or screening teststhat are believed to be of benefit. Consent is assumed.

The other argument for opt-out testing is utilitar-ian. This strategy is likely to benefit other individualsin society. Identifying patients as being HIV positiveleads to reduction in high-risk sexual behaviour, andanti-retroviral treatment reduces viral load. Bothreduce transmission of the virus. The utilitarianargument for opt-out testing is particularly powerfulin parts of the world where there are very high rates ofHIV. The only way to stop the epidemic of HIV is toreduce the “case reproduction number” to less thanone (Granich et al. 2009). Modelling suggests that apolicy in sub-Saharan Africa of universal voluntarytesting and early treatment would prevent millions ofdeaths from HIV (Granich et al. 2009).

The question of opt-out testing in HIV has obviousanalogies with another debate in public policy—thatof organ donation consent. The UK Organ DonationTaskforce has recently considered a move to opt-outconsent for organ donation in the UK (OrganDonation Taskforce 2008), and other countries in-cluding New Zealand, Australia and the United Statescontinue to debate the issue. There are paternalisticreasons for such a policy: 65–95% of people in theUK are in favour of donating their organs after death,though only 25% sign on to organ donation registries(Organ Donation Taskforce 2008). An opt-out systemwould respect the wishes of more people about theuse of their organs. There are also strong utilitarianarguments in favour of such a policy. An opt-outsystem of organ donation would be likely to lead to a25–30% increase in organ donation rates (Rithalia etal. 2009). This could correspond to approximately650 extra organs in the UK each year.

Given the strong reasons in favour of opt-outsystems for HIV testing and for organ donation, whyis there so much reluctance to contemplate them? Part

of the explanation may be a phenomenon known as thestatus quo bias, a serious and widespread cognitivebias in decision-making (Samuelson and Zeckhauser1988; Bostrom and Ord 2006). One way of counteringthis bias is to imagine that the status quo is reversed(Aberegg et al. 2005). Imagine that the current consentprocesses for HIV testing were on an opt-out basis. Dothe concerns about possible harms from opt-out testingprovide sufficient reason to make a change to an opt-inconsent given the benefits that would be lost? It is hardto believe that they would.

Ironically, the status quo bias is also part of thereason why opt-out consent leads to higher testing ororgan donation rates. Given the same preferencesand reasons, patients are more likely to take up analternative when it is presented as the default thanwhen it is an active choice (Samuelson andZeckhauser 1988). This bias makes it hard forindividuals to do what they have most reason todo. We can reduce the effect of the bias by the wayin which choices are presented. Given that there arestrong prudential and moral reasons to undertakeHIV testing or to agree to donate organs after death,it makes sense to present these as the defaultposition.

Jaffe makes a strong case for rejecting AIDSexceptionalism, and offering HIV testing on the samebasis as other diagnostic and screening tests (Jaffe2009). But he also identifies the potential costs ofsuch a policy. Individuals could be subject to stigmaor discrimination as a result of being diagnosed withHIV. Some patients may be diagnosed with HIV, butbe unable to access anti-retroviral treatment. Theseare important concerns, and there are good reasons tomitigate such harms. But they should not stop us fromchallenging the status quo and moving to an opt-outapproach to testing for HIV.

References

Aberegg, S.K., E.F. Haponik, and P.B. Terry. 2005. Omis-sion bias and decision making in pulmonary and criticalcare medicine. Chest 128: 1497–1505. doi:10.1378/chest.128.3.1497.

Bostrom, N., and T. Ord. 2006. The reversal test: Eliminatingstatus quo bias in applied ethics. Ethics 116: 656–679.doi:10.1086/505233.

Granich, R.M., C.F. Gilks, C. Dye, K.M. De Cock, and B.G.Williams. 2009. Universal voluntary HIV testing with

236 Bioethical Inquiry (2009) 6:235–237

immediate antiretroviral therapy as a strategy for elimina-tion of HIV transmission: A mathematical model. Lancet373: 48–57. doi:10.1016/S0140-6736(08) 61697-9.

Jaffe, H. 2009. Increasing knowledge of HIV infection statusthrough opt-out testing. Journal of Bioethical Inquiry, 6(2). doi:10.1007/S11673-009-9147-4

Organ Donation Taskforce. 2008. The potential impact of an optout system for organ donation in the UK: An independentreport from the Organ Donation Taskforce. http://www.dh.

gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_090312. Accessed March 7, 2009.

Rithalia, A., C. McDaid, S. Suekarran, L. Myers, and A. Sowden.2009. Impact of presumed consent for organ donation ondonation rates: A systematic review. BMJ (Clinical ResearchEd.) 338: a3162. doi:10.1136/bmj.a3162.

Samuelson, W., and R. Zeckhauser. 1988. Status quo bias indecision making. Journal of Risk and Uncertainty 1: 7–59.doi:10.1007/BF00055564.

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