Cohen (2013) is so committed to the theory of nudging that he argues it is ethically justifiable in some circumstances when the act of nudging takes advantage of flaws in a patient’s decision-making process. His defense of nudging is predicated on beneficence to the individual. However, we contend that while nudging is common and sometimes desired, it should always be made explicit, rather than obscured in order to prey on flaws in a patient’s decisionmaking process.

Our point is better understood if nudges are framed along a spectrum from “hard” to “soft.” We consider presumed consent approaches as hard nudges because they require an active “opting out” to avoid that which is undesired. Presumed consent models are clearly actions on the part of providers designed to exert a strong influence on patients by altering the “choice architecture” of consent. While Cohen suggests that many nudges are justifiable based on their benefit to the individual, we suggest that the harder nudge, the more the concern for violations of autonomy. The concern for hard nudges is evident because hard nudges are rarely implemented based on appeals to the benefit to individuals. In most cases, the basis for presumed consent is the need to promote public health, or the common good. At one extreme, consent becomes a nonissue. For example, partner notification or other public health policies override individual privacy considerations because of prevailing public health interests. In addition, the administrations of vitamin K and ophthalmic antibiotic ointment in the delivery room are additional examples of hard nudges; it becomes very difficult to avoid these interventions. Of course, presumed consent has been advocated as a policy approach to organ donation as well; the communal benefit associated with a greater number of transplantable organs has been argued to outweigh the harms to deceased donors. The presumption of cardiopulmonary resuscitation in the hospital setting is a rare example of a hard nudge that truly is predicated on the benefit accruing to the individual.