Libertarian paternalism allows individuals' well-being to be helped without impacting on freedom of choice, writes Martin O'Neill

Most political decisions involve trade-offs between different interest groups. Changes in the tax system, for example, typically leave some better-off and others worse-off. Even when trade-offs between different individuals aren’t at stake, political decisions will be a balancing act between different values.

For example, airport security restrictions limit our freedom, in at least the hope of increasing our physical security; those who benefit are the same as those who bear the costs, but everyone has to take a loss (of freedom) in order to create a gain in security.

What is remarkable about the government’s new ‘presumed consent’ proposals on organ transplantation is that they involves no such trade-offs. No-one will be made worse-off in any way, although others will benefit, and no important value is sacrificed in pursuit of some other goal. It’s a rare case of the sort of ‘win-win’ solution that governments may occasionally hope to find to difficult political problems. We should support these kinds of ‘win-win’ policies wherever they crop up, and governments should do more to identify them in other areas.

At the moment, organ transplantation in the UK is based on an ‘opt-in’ system. Organs are harvested for use in transplants only when the dead individual was a carrier of a Donor Card, or where the individual’s family have volunteered his or her organs for use.

This contrasts with the system in countries like Spain, where there is ‘presumed consent’ for everyone to give their organs for use in transplants. Individuals remain free to opt-out of these arrangements if they so wish, and families retain the right to refuse permission for their loved-one’s organs to be harvested.

Put simply, in answer to the question of whether a dying person’s organs will be available for transplant, the default answer in Spain is ‘Yes’, whereas the default answer in the UK is ‘No’.

Unsurprisingly, this difference in the ‘default position’ has a large influence on the number of transplants that are actually carried out each year in the two countries. In Spain the figure is 33.8 per million of population, whereas in the UK it is just 12.9 per million.

Accordingly, thousands of people in the UK are waiting for organ transplants, and many will die before the end of their wait. If enough organs for transplant could be found, about 1,000 extra lives could be saved every year.

The government’s Chief Medical Officer Sir Liam Donaldson backs the move to the Spanish model of ‘presumed consent’, as does the government’s task force on organ donation. It looks like we can expect the Brown government to bring in a thoroughly sensible change of policy following these recommendations, thereby saving hundreds of lives every year.

As well as the move towards ‘presumed consent’, the UK will also be adopting something closer to the Spanish model of having highly-trained ‘organ procurement officers’, who will deal with relatives at the fraught but crucial time just before and just after death. (To see such a ‘procurement officer’ at work, and to see how deep this culture of organ donation now runs in Spanish society, it is instructive to watch Pedro Almodovar’s wonderful film All About My Mother, in which the central character, Manuela, works as a procurement officer.)

The move to the Spanish model of ‘presumed consent’ is a win-win situation because it makes many people better off (i.e. those who will receive organs), whilst leaving no-one worse off. Indeed, by relieving some of the pressure on the difficult decision of whether to donate, it arguably makes things somewhat easier for family members. So, everyone benefits. It also involves no trade-offs in terms of values because it increases the life expectancy and quality-of-life of organ recipients without restricting the freedom of choice of anyone else. Donors and their families still have the entitlement to withhold organs, for whatever reason, and so they face no limitation on their freedom. It is just that ‘default position’ against which they make their choice has been changed.

The Spanish model with it’s ‘soft’ opt-out thereby contrasts with ‘hard’ opt-out in operation in Austria, where family members are not consulted. Perhaps the Austrian policy is the best option all-things-considered, but, by curtailing the freedom of choice of family members, it does not have the ‘win-win’ structure of the Spanish model.

These sorts of win-win policies can crop up all over the place. For example, some American corporations found that, where they offered their employees a huge range of investment products for their retirement savings, the choice was simply too bewildering, and employees instead chose to save nothing. Too much choice, after all, is useless when we do not have the right kind of information at our fingertips. What such companies have instead done is to sign-up their employees for a sensible and prudent investment plan as the default option, whilst still leaving them the full entitlement to ‘opt-out’ of that plan, or to transfer to an alternative.

The American legal theorist Cass Sunstein has called these sorts of policies forms of ‘libertarian paternalism’ – ‘libertarian’ because no-one’s freedom of choice is affected, but nevertheless a form of ‘paternalism’ because the well-being of individuals is helped directly by the policy. These sorts of ‘libertarian paternalist’ policies are the ‘one-person’ version of the many-person ‘win-win’ policy involved in the Spanish model of organ donation. Individuals gain in terms of their future well-being, but lose nothing in terms of freedom, because they can still choose to do whatever they were entitled to do before.

The lessons of the ‘Spanish model’ are twofold. Firstly, one can do a lot in health policy and social policy just by manipulating what the default option might be, without interfering with anyone’s freedom of choice. Secondly, although politics is usually about making tough choices, the existence of these kinds of ‘win-win’ policies means that sometimes doing the right thing in politics can be surprisingly easy.

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