The Dark Side of Choice: When Choice Impairs Social Welfare - Literature review Example

Critically discuss issues other than ‘freedom of choice’ for individuals are important in creating social policy relating at least TWO of the following (Name) (Institution) (Course) (Tutor) (Date) Introduction Social policy is the study of the necessary social relations for human welfare and systems which promote it. It represents a wide range of issues extending beyond government actions by checking the promotion of welfare and the social and economic issues which shape welfare. This paper discusses other issues other than freedom of choice that are important in creating social policy related to marriage and death. Value of choice Some scholars argue that society evaluates the benefits of choice on the basis of normative and cultural underpinnings. Therefore, some policy makers instinctively draw on the concept of choice as the remedy for the problems in social welfare. The prevailing ideology among many policy makers is that more choices increase the chance of a better outcome. Botti and Iyengar argue that the benefits of the provision of choice are limited to issues with manageable decision complexity. As decision complexity rises, the provision of choices, which were previously desirable and beneficial, becomes paralyzing and debilitating resulting in suboptimal decision making (Botti and Iyengar, 2012, P.2). Polygamous marriage Proponents of polygamy argue that a person wishing to marry an extra wife in a legal system that prohibits polygamy could contest that their right to marry was being infringed. However, this argument fails because the right to choice in marriage contained in the international law is subject to limitations set by national law. These limitations are lawful if they do not infringe on the rights of large groups of the population (Fried, 1978, P.7). For instance, in the case of Johnston and Others v Ireland (1986) the applicants argued that the prohibition against divorce imposed by the Ireland’s Constitution violated their right to marry. The European Court maintained that the right to marry should not be interpreted as a right to divorce in with the motive of remarrying, and thus it does not endorse polygamy. Therefore, monogamous systems that have ratified human rights treaties endorsing the right to marry cannot be forced to allow polygamy (Coote, 1992, P55). The other aspect of polygamy is discrimination on the grounds of sex since a system of law that permits men to marry many wives, but prohibits women from doing the same contravenes the provisions against discrimination on the basis of sex. The International Covenant recognizes that polygamy is an inadmissible discrimination against women as it violates their dignity and should be abolished in all parts of the world. The Committee on the Elimination of Discrimination Against Women (CEDAW) asserts that polygamy contravenes women’s rights to equality with men and can have serious emotional and financial consequences for the woman and her dependents. CEDAW further States that polygamy is incompatible with the integrity of women and should eliminated regardless of how deep it is rooted in tradition (Dean, 2006, P.68). Since all global and regional human rights conventions prohibit discrimination, then the principles of equality are part of the international customary law. Thus, it can be argued that polygamy infringes international customary law. Consequently, polygamy is a violation of the principles of equality which transcend personal choice as personal choices must not infringe the rights of others (Dean, 2006, P.68). Polygamy has been associated with child marriage since it drives down the age of marriage for females. This practice contravenes international human rights law. In addition, it creates a shortage of females available for marriage leading to male family members controlling female relations, and as a consequence such females might end up in forced marriage. The practice of forced marriage denies children the right to education and infringes on their right to protection from sexual exploitation (Mooney, 2005, P199; (Kassam, 2010, P.124)). Polygamy encroaches upon the dignity of women; this violation is particularly acute where multiple wives are required to live in one household. Requiring women to cohabit also contravenes their right to privacy and family life as articulated in the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights. This is because every individual has a right to live in a loving family and work for the benefit of the family. This right is breached when a man marries another wife. Polygamy undermines the institution of marriage due to loss of exclusivity and co-wife rivalry. When co-wives or their children are expected to live an accommodation that cannot house them adequately, then their right to an adequate standard of living is infringed (Engineer, 2008, P.76; Mallat, 1993, P.167). In some societies, polygamous wives are subjected to physical violence. What is more, female genital mutilation is commonly practiced in polygamous societies as a means to inhibit the sexual expression of multiple wives. Violence and FGM breach the Rights of the Child to health and protection from harmful practices. In any case, physical violence and FGM constitute torture, inhuman and degrading treatment, which is prohibited under the UDHR. Researchers like Cook and Kelly (2006) argue that polygamy closely resembles slavery in some contexts. This is because women in polygamy are often required to perform various roles with reproduction being part of the role and; therefore, they become sexual slaves (Gaffney-Rhys, 2011, P.3). UK law only recognizes a polygamous marriage contracted overseas by a person domiciled there, but only allows one spouse to enter and reside. This is because the UK has a legitimate right to preserve monogamy, and the state cannot be required to recognize all polygamous marriages or admit every plural spouse into the country (Ward and Bélanger, 2011, P.43; Joseph, et al, 2003, P.385). Some Muslims might argue that outlawing polygamy infringes their religious rights as provided in the UDHR, but a closer look at all the conventions reveals that states are allowed to put limits on the freedom to practice religious beliefs that are detrimental to health, safety, morals and freedoms of others. Given the negative outcomes associated with polygamy, states can legitimately outlaw it without compromising their international obligations. In any case, some researchers assert that Islamic law does not require or encourage polygamy and that its prohibition does not restrict Muslim practice. Most judicial precedents prioritise the rights of women over freedom of religion in cases of litigation (Ward and Bélanger, 2011, P.43). Same-sex person (current marriage/CP legislation) Same-sex partnership in England is recognized under the Civil Partnership Act 2004, which created a legal union that is almost similar to marriage. Civil partners enjoy similar rights and responsibilities as married couples in several aspects. A marriage can only be legally valid if it is between a man and a woman, whereas a civil partnership is allowed only for same-sex couples (Burns, 2005, P.151). The most significant difference between civil partnerships and marriage is that a valid marriage can only be entered into by only a man and a woman. Furthermore, a civil partnership can only be civil and is not religious, whereas opposite-sex couples can choose between a religious and a civil marriage ceremony. Civil partnerships cannot be dissolved on grounds of adultery unlike in the case of divorce. Civil partnerships are formed when both partners sign the relevant document. In contrast, a civil marriage becomes legally binding when the couple exchanges spoken word and is the register is signed. Essentially, a civil partnership is a legal contract unlike marriage which bears socially recognized responsibilities, in addition to legal obligations (Burns, 2005, P.151). The government asserts that, for legal purposes, civil partners cannot claim to be married and married couples cannot claim to be partners. The UK law does not permit same-sex marriages, and according to the Family Division, this is not a breach of human right laws. In the case of Wilkinson v Kitzinger, a same-sex couple had been married in Vancouver and wanted their marriage to be recognized in the UK. The couple sought act that declares marriage to be void unless the parties involved were male and female revoked as it was incompatible with the European Convention on Human Rights. They argued that civil partnerships were not equal to marriage symbolically. The court rejected the couple’s argument by declaring that withholding the actual title and status of marriage from same-sex partners did not constitute a breach of their convention rights (Burns, 2005, P.151). The rationale for withholding the actual title and status of marriage to same-sex partners was that the government had refused to alter the deep-rooted and universal recognition of marriage as a union between a man and a woman. However, the court argued that the distinction did not interfere or fail to recognize the right of same-sex couples to the extent that they needed protection. Withholding such recognition did not criminalize or affect the intimacy of the couple (Lamanna and Reidmann, 2012, P.567). The European Court for Human Rights argues that there is not obligation under European law for states to recognize same-sex marriages and that the decision to or not to allow same-sex marriage is the responsibility of Member States national law. The court further argues that marriage is a deep-rooted social and cultural institution, which varies largely from one society to another, and retaliates that it “cannot rush to substitute its own judgment in place of that of the national courts” that are at the best position to assess and manage the needs of society (Kendall, 2013, P.342). A counter argument to the opposition of same-sex marriage asserts that marriage for all couples is about equality and commitment. Furthermore, ties bind people together, and society is stronger when people exchange vows and support each other. Several legislators have in the recent past argued that having one provision for homosexual couples and another for heterosexual couples promoted misconceptions and discrimination. However, proponents of such legislation are quick to state that no changes would be made to oblige religious organizations to solemnize religious marriages between same-sex partners and that civil partnerships would still remain (Corr, Corr and Bordere, 2013, P.267). In a raft of proposals suggested by the House of Commons late 2012, the government allowed people to preach the belief that marriage can only be between heterosexuals without censorship or legal action for hate speech. Teachers were also allowed to describe their belief that marriage is between heterosexuals while acknowledging that same-sex couples can also marry. Schools were required to ensure that pupils were not taught content that is inappropriate for their age, religious or cultural background. However, they should be able to receive broad and balanced advice on marriage (Corr, Corr and Bordere, 2013, P.267). Teachers in faith schools would be free to describe their belief that marriage is between heterosexuals while acknowledging the new legislative disposition, which enables same-sex couples to get married. Teachers are also expected to ensure that they do not express their personal beliefs in a way that exploits pupils’ vulnerability or discriminates against them. Therefore, these proposals if enshrined into the law would allow freedom of choice while respecting others right to practice religion, traditions, and acceptable and desirable norms in society (Fairbairn, 2012, p.4). Restriction on right to assisted suicide The Suicide Act of 1961 abrogated the rule of law that defined suicide as a criminal offense. Consequently, committing suicide or attempting to commit suicide ceased to be a crime. However, section 2(1) of the 1961 act after amendment by the coroners and justice act of 2009 criminalizes complicity in another’s suicide. Therefore, it is an offense for a person to encourage or assist a suicide. Any proceedings under the suicide act must be approved by the office of the DPP (Downie, 2004, P.33). During the passage of The Coroners and Justice Bill 2009 two unsuccessful amendments to the law on assisted suicide were sought. Lord Falconer in defense of the amendments argued that his was an effort to avoid marginalizing the law. The law was not being applied by the DPP as it no longer fitted the prevailing situation. As a result, of the law not being applied, people were going earlier to clinics abroad without their loved ones being present at the time of their death. The law was also not protective against abusive people or of those under mistaken impression of what illness they had. The safeguard as at the time only addressed the fear of prosecution (Downie, 2004, P.33). In response to these assertions, Baroness Campbell, who suffered from a degenerative condition spinal muscular atrophy, argued that if the amendments were to succeed, they would endorse despair as socially acceptable, and would be remedied with early state sanctioned death. Therefore, it was critical for the government to guarantee disabled people support for continued life and its value. It would be careless and irresponsible for the state to give up on such patients when they needed it most. The Not Dead Yet UK where Campbell is a member asserts that in giving in to demands for assisted suicide, parliament would be reinforcing attitudes that claim that the lives of the disabled are not worth living. They would be supporting the view that the disabled are a burden to themselves, their relatives, friends and state. This would be outright discrimination, which would further alienate and exclude the disabled (Battin, Rhodes and Silvers, 1998, P.35). The British Medical Association (BMA) has by tradition being opposed to any form of assisted dying. However, in 2005, its policy making body recognized that there were diverse opinions within society and the profession. Nevertheless, most of its members opposed any possible legislation of assisted dying by a vote in 2006. It current policy asserts that ongoing improvements in palliative care allow patients to die with dignity. It insists that physician-assisted suicide should not be legalized in the UK; neither should voluntary euthanasia be legal in the UK. If euthanasia was to be legalized, there should be a clear demarcation between those doctors who would practice it and those who would not. It also opposes legal immunity for those who accompany patients to an assisted death abroad (Battin, Rhodes and Silvers, 1998, P.35). Opponents of euthanasia argue that rather than empowering individuals facing terminal illness to make their decisions, the mere availability of physician-assisted suicide can pressure the sick, depressed, elderly and the disabled patients to end their lives. Opponents in the US argue that the term ‘terminally ill’ is so broad that virtually all persons could claim some sort of need for physician assisted suicide. For instance, suicide advocates in Baxter v. State defined a terminally ill adult patient as a person over 18 years of age who has an incurable or irreversible condition that without access to life-sustaining treatment would in the opinion of the physician result in death in a relatively short time. This definition is not limited to incurable or irreversible medical situations but includes conditions like diabetes and asthma (Buchanan and Brock, 1998, P.126). Furthermore, there is no specific timeline for the suspected death under this definition. Therefore, the dangers inherent to legalized suicide range from untreated depression to elder abuse to the slippery slope of outright euthanasia. To avert these dangers, and affirm that the lives of all Americans are valuable, states must reject efforts to extend the legislation of physician-assisted suicides (Buchanan and Brock, 1998, P.126). Research indicates that most of the terminally ill patients who express wish to die meet the diagnostic criteria for depression. Depression is often under-treated or under-diagnosed in elderly patients with chronic or terminal medical conditions. Safeguards in states like Oregon, where the practice is legal, rarely receive psychological evaluation or treatment prior to receiving the lethal drugs. In 2010, only 1 in 65 such patients, in Oregon, was referred to psychiatric or psychological counseling prior to the physician-assisted suicide. In some cases, physicians who had known a patient for only one week would provide the lethal drugs (Buchanan and Brock, 1998, P.126). Euthanasia advocates argue that assisted suicide is needed for terminally ill patients who face or fear great pain, yet most pain management experts believe that 95-98% of such pain can be relieved. Furthermore, most patients who request assisted suicide on the basis of pain withdraw the request after pain management, depression and other concerns are addressed. Studies reveal that when offered palliative care, most patients live a normal life. The legalization of physician assisted suicide would be profoundly dangerous for individuals who are ill and vulnerable and whose options are already compromised by poverty, advanced age or membership of a stigmatized group (Downie, 2004, P.33). The American Medical Association (AMA) argues that physician-assisted suicide is incompatible with the physician’s role as a healer and would be difficult or impossible to control posing serious societal risks. It recommends other measures such as specialty consultations, hospice care, pastoral support and family counseling among others (Downie, 2004, P.33). Many people who request physician-assisted suicide do it out of pressure, coercion or to relieve their families of the burden of supporting them. In the case of Oregon, health insurance companies and other healthcare payers provide coverage for suicide assistance but not for treatment of disease and palliative care. Thus, a lack of options may effectively pressure patients into assisted suicide (Downie, 2004, P.33). Restriction on right to refuse life-sustaining medical treatment to persons without legal capacity A person is said to lack capacity if, at the time of decision-making, he/she is unable to make or communicate the decision because of impairment in the functioning of the brain. Where a patient lacks the capacity to make a decision, an advance directive by the patient rejecting life-sustaining treatment is respected. Some mentally incapacitated adult patients have a legally appointed guardian. The guardian is legally entitled to give consent for the treatment considered to be of the best interest to the patient, or to refuse treatment considered futile to the patient. The medical professional should guide the guardian in making a decision, and together they arrive at a consensus (Potts and Mandleco, 2012, P.595). Where a patient is mentally incapacitated but lacks a legally appointed guardian, the final decision should be a decision serving the best interests of the patient. The medical team should reach a consensus with the family unless the view of the family is clearly contrary to the patients best interests. In this case, the factors considered in determining the patient’s best interests should balance the burdens and benefits to the patient. Such factors include a clinical judgment of the effectiveness of the proposed treatment, the likelihood of the patient suffering severe unmanageable pain the likelihood of irreversible loss of consciousness, likelihood of improvement in the patient’s condition if treatment is provided and whether the invasiveness of the treatment is justified under the circumstances (Buchanan and Brock, 1998, P.126). In case of clear-cut physiological futility of treatment, the medical team can choose not to provide the treatment despite the patient’s family insistence. When faced with requests to continue with treatment even when there is no chance of recovery, healthcare providers have a duty to make the best use of the available resources. Physicians have the mandate to decline requests that make irrational demands on the use of the available resources (Corr, Corr and Bordere, 2013, P.267). Where the family and the health care provider do not agree on the futility of treatment, the care-giver should clearly convey the likelihood of the irreversibility of the illness to the patient’s family. The futility and the potential risks should be openly communicated. The other option is to offer a trial of life-sustaining treatment with specified therapeutic goals and endpoints. If no progress is registered at the end point and futility is established, a resolution can be reached to withdraw the life-sustaining treatment (Corr, Corr and Bordere, 2013, P.267). Conclusion Freedom of choice is critical to an organized and free society. However, social policy must be made in a manner that it does not suppress the rights of some members of society especially the vulnerable in an attempt to grant freedom of choice to others. Professionals such as health-care providers and law makers are duty bound to use their discretion in determining the best choice in a situation where there are competing interests. Most importantly, the sanctity of life must always be upheld in making decisions.   Bibliography: Battin, M., Rhodes, R. and Silvers, A. (1998). Physician assisted suicide: expanding the debate. London: Routledge. Botti, S. and Iyengar, S. (2012). The Dark Side of Choice: When Choice Impairs Social Welfare. Accessed on 17th April 2013 from: http://faculty.london.edu/sbotti/assets/documents/Dark_side_of_choice.pdf. Buchanan, A. and Brock, D. (1998). Deciding for others: the ethics of surrogate decision making. Cambridge [u.a.]: Univ. Pr. Burns, G. (2005). 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