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Cass R. Sunstein, Behaviorally Informed Health Policy? Patient Autonomy, Active Choosing, and Paternalism, in Nudging Health: Health Law and Behavioral Economics (I. Glenn Cohen, Holly Fernandez Lynch & Christopher T. Robertson eds., 2016).

Abstract: Many people have insisted on an opposition between active choosing and paternalism, and in some cases, they are right to do so. But in many contexts, the opposition is illusory, because people do not want to choose actively. Nanny states forbid people from choosing, but they also forbid people from choosing not to choose. If and to the extent that health insurers, employers, hospitals and doctors forbid that choice, they are acting paternalistically, and that particular form of paternalism might be unjustified. It is true that active choosing has a central place in a free society, and it needs to play a large role in the health care system. But for those involved in that system, as for everyone else, the same concerns that motivate objections to paternalism in general can be applied to paternalistic interferences with people’s choice not to choose. These points have implications for health insurance, for food safety, for wellness programs, and for the idea of "patient autonomy."