Not to be sneezed at. On the possibility of justifying infectious disease control by appealing to a mid-level harm principle

Abstract

To protect population health against infection risks it may be necessary to restrict the liberty of individuals, e.g. by mandating quarantine or by imposing work restrictions. This study examines whether common measures in infectious disease control – including restrictions of liberty – can be morally justified by appealing to a mid-level harm principle. The harm principle roughly holds that the state may restrict the liberty of some to prevent harm to others. In moral justification a mid-level version of the harm principle would serve as a bridge: between people (by providing common terminology); between normative theories (by enabling or expressing common ground between theories); and between normative theories and practice (by connecting practical moral deliberation to normative theories). It is examined whether a selection of normative theories (libertarianism, communitarianism, rule-utilitarianism, Scanlonian contractualism) can morally support potential trade-offs between liberty and population health by appealing to the same version of the harm principle. Two versions of the harm principle are examined: HP1 (it is justified to restrict the liberty of A to prevent A from causing harm to B); and HP2 (it is justified to restrict the liberty of A to prevent harm to B). It is shown that while our selection of theories rejects zero tolerance of infection risks, and can support liberty-restrictions on harm principle grounds in cases involving high infection risks, the possibility of a mid-level principle in infectious disease control also faces several problems. A first problem is that HP1, on which our selection of theories converges, is still quite general, leaving much room for disagreement about when coercion can be justified (the “Constraint Problem”). Second, morally justifying all common measures to prevent infection risks would require appealing to HP2, on which our selection of theories does not converge (the “Trade-off problem”). The Constraint Problem can be reduced by finding additional mid-level considerations that can help limit the scope of the harm principle. It is argued that our selection of normative theories also converges on the “Requisite of Reasonableness”, entailing that preventive measures must be effective, that we should preferably use the least intrusive option available, and that preventive measures should be proportional. This helps to constrain the scope of the harm principle, but also yields the “Proportionality Problem”, entailing that different normative theories may assign different relative weights to individual liberty and population health. It is argued that we can adequately deal with the potential divergence that results from this by accepting a “division of normative labour” between applied ethicists/philosophers and infectious disease professionals. Among other things this entails that where the harm principle cannot offer a clear moral justification for common infectious disease control due to diverging theoretical views, there is room for professional autonomy and judgement of public health professionals. Several recommendations are made to promote the proposed division of normative labour, e.g. by increasing the competence of infectious disease professionals in ethical deliberation and judgment. A structure for ethical decision-making is offered that can assist these professionals in their moral deliberations.