March 6, 2017
In his lucid and fascinating February 2017 article in the AMA Journal of Ethics, “What is the Relevance of Procedural Fairness to Making Determinations about Medical Evidence?,” Govind Persad, an Assistant Professor in the Department of Health Policy and Management in the Bloomberg School of Public Health and in the Berman Institute of Bioethics, considers the following questions: How can fair procedures “help address epistemological and factual questions in medicine”?
As Persad sees it, dilemmas in medical ethics and health policy often involve two questions. One is a factual or descriptive question concerning “which benefits an intervention will have.” (183) The other is an ethical question concerning “how to distribute those benefits.” (183) Persad provides the following example to tease out the distinction:
determining who should receive priority for scarce vaccines in a pandemic involves answering two questions: the descriptive (factual) question of which benefits these vaccines are expected to have for their recipients and the normative (value) question of how those prospective benefits should be distributed. (183)
Persad is interested in considering how fair procedures can be used to address questions of the first sort—the “epistemological and factual questions in medicine.” (183) He sets for himself the following task: to “consider how fair procedures have been and can be used to develop and weigh factual evidence in medicine.” (184) Persad foresees an increase in both the significance and frequency of “debates over the validity and weight of medical evidence” as the amount of medical evidence that is both required and amassed increases. He foresees an acceleration in this trend, which he credits to
the expansion of clinical data collection and analysis; the growing relevance of scientific evidence to medical practice…; and the use of evidence to support payment and insurance coverage decisions that have financial implications for patients and providers. (184)
Persad contrasts the procedural approach that is the focus of his article from other “theoretical approaches [that] have been proposed for resolving debates regarding distributive fairness in medicine.” (183) The crux of the distinction is that, whereas other, substantive approaches (utilitarian, deontological, decision analysis, allocative) favor “the promulgation of specific principles” (183) in accordance with which distributive decisions are to be made, the approach contemplated by Persad “focuses on the establishment of fair procedures for choosing principles.” (183) It is tempting to put this question to Persad: To what extent can the procedural fairness approach really be set apart from these principle-promulgation approaches? Or, more precisely: Does the procedural fairness approach make it unnecessary to consider the substantive approaches? That is, if we accept that the procedural fairness approach can be used to develop and weigh factual evidence in medicine, are we thereby relieved of the need to decide among different substantive approaches by which we might develop and weigh that same evidence? The answer here seems to me to be “no,” since it is built into Persad’s own account that the very purpose of these procedures is “for choosing principles.” (183) So, as I understand it, the approach does not dispense with substantive considerations altogether (nor do I think Persad would need to defend such a dispensation to make sense of the procedural approach he is considering).
Further, as Persad acknowledges in the section of his article entitled “Limitations of Procedural Approaches,” it may be that procedural approaches are ill-equipped to “resolve substantive disagreements” concerning certain factual questions. (189) To bring this point into focus, Persad provides the following example: Imagine that there is disagreement among scientists as to “which kinds of evidence are relevant—for instance, a disagreement regarding whether to give any weight to anecdotal patient reports regarding antidepressant efficacy.” (189) In this case, Persad seems to suggest that a procedural approach could not by itself provide guidance as to which scientists’ perspective(s) should be endorsed. Still, Persad contends, in those cases where there is already agreement concerning which sorts of evidence have “been established as relevant for some nonprocedural [substantive?] reason,” “fair procedures may be more effective at settling factual questions” than substantive principles-based approaches. (189)
Persad applies his discussion of the use of procedural approaches to medical evidence to the contemporary debate concerning “the efficacy of antidepressant medications.” (185) As Persad points out, studies have pointed in different directions regarding the question “whether antidepressant medications are more effective than a placebo at combatting depression.” (185) And, it matters very much how the factual evidence regarding the efficacy of antidepressants is weighed, as it will surely have downstream implications for prescription, prioritization, and policy questions. (185)
But, how can “procedural approaches to the epistemology of medical evidence…help to address these questions” (185)? Persad answers this question by considering a specific type of “procedural framework for weighing factual evidence [that] focuses on avoiding epistemic injustice by making procedures for collecting factual evidence fairer and therefore more epistemically reliable.” (189) The procedural approach Persad has in mind is one on which “the perspectives of nonexperts” (186), and not just physicians and scientists, would be included when “answering factual questions about the effects of medical interventions on different patients” (185). Persad argues that including the perspectives of nonexperts when answering factual questions about the effects of medical interventions is justifiable
because the goal of clinical practice is … to understand whether providing [a particular] intervention improves the life of its recipient. Assessing the capacity of an intervention to improve patients’ lives frequently requires attending closely to the details of their reports of their own experiences. Some approaches to medical research, however, might fail to attend sufficiently to others’ testimony. (186-187)
Relying on Miranda Fricker’s influential work on the topic, Persad considers how four different types of epistemic injustice might adversely affect the collection and weighing of evidence concerning the efficacy of antidepressants—testimonial injustice, hermeneutical injustice, epistemic objectification, and exclusion. Consider Persad’s examples:
Persad provides this example of how the phenomonenon of testimonial injustice might arise in the collection and weighing of evidence regarding the efficacy of antidepressants: Researchers or clinicians might discount “women’s reports regarding antidepressant side effects on the basis that women are unreliable reporters.” (187)
Persad provides this example of how the phenomonenon of hermeneutical injustice might arise in the collection and weighing of evidence regarding the efficacy of antidepressants: Researchers or clinicians might “ignor[e] reports that antidepressants affect the formation of nurturing relationships because the framework does not discuss nurturing relationships.” (187)
Persad provides this example of how the phenomonenon of epistemic objectification might arise in the collection and weighing of evidence regarding the efficacy of antidepressants: Researchers or clinicians might “fail to attend to research participants’ feedback about their experience of antidepressant treatment.” (187)
Persad provides this example of how the phenomonenon of exclusion might arise in the collection and weighing of evidence regarding the efficacy of antidepressants: Researchers or clinicians might “exclude[e] relevant research participants from an antidepressant trial or us[e] a trial design that provides no scope for patients to share relevant information they have about their experience of antidepressant efficacy and side effects.” (187)
So, procedural frameworks devised to counteract the effects of epistemic injustice by “making procedures for collecting factual evidence fairer and thereby more epistemically reliable” (189) may contribute to better resolutions to debates over factual evidence in medicine than substantive principles-based approaches.
In a brief email exchange with Persad on March 3, he provided the following perspective on why a procedural approach (and a procedural approach attuned to concerns about epistemic injustice in the collection and weighing of medical evidence, in particular) could provide better resolutions to debates over medical evidence:
because developing and evaluating medical evidence is a social process and not a purely theoretical and individual exercise, fair procedures are an important way of organizing that social process.
* * *
 Govind Persad, “What is the Relevance of Procedural Fairness to Making Determinations about Medical Evidence?” AMA Journal of Ethics. February 2017, Volume 19, Number 2: 183-191, 183. doi: 10.1001/journalofethics.2017.19.02.pfor1-1702.
 Persad provides the following definition of testimonial injustice: “Discounting someone’s testimony on the basis of unjustifiable biases.” (187)
 Persad provides the following definition of hermeneutical injustice: “Ignoring testimony that cannot be conceptualized or expressed within the prevailing framework for discussion.” (187)
 Persad provides the following definition of epistemic objectification: “Treating others as passive states of affairs from which information can be gleaned, rather than as agents who convey information.” (187)
 Persad provides the following definition of exclusion: “Using methods for collecting information that exclude relevant individuals or relevant information.” (187)