CHAPTER 3. Moral theory and the ethical practice of nursing
L earning objectives
▪ Explain moral justification.
▪ Discuss critically the importance of moral justification to moral decision-making and action.
▪ Outline the relationship between moral justification and moral theory.
▪ Define ethical principlism.
▪ Discuss critically how the moral principles of autonomy, non-maleficence, beneficence and justice might be used to guide decision-making in nursing and health care contexts.
▪ Discuss critically a moral rights theory of ethics and its application to nursing.
▪ Discuss critically virtue ethics and its particular significance to nursing ethics.
▪ Distinguish between deontological and teleological ethics.
▪ Differentiate between a moral right and a moral duty.
▪ Discuss critically the limitations and weaknesses of contemporary moral theory.
I ntroduction
When encountering an ethical problem during the course of their work nurses are confronted by at least three basic questions:
In seeking answers to these questions, it would be natural for a nurse to incline toward and draw on his or her own personal values, beliefs, professional knowledge and life experience. Whether this would be sufficient to provide the moral warranties or ‘moral authorisations’ being sought is another matter, however. Deciding the ‘morally right’ thing to do in a situation and taking moral action accordingly is rarely a straightforward process. Among other things it requires a broadly informed, systematic, and deeply experienced approach to thinking about the issues at stake and how best to resolve them. This, in turn, requires ‘mastery’ and ‘not just surface competence’ of relevant ethical concepts and principles as well as ‘the skill to navigate them when they tangle together in concrete situations’ (Little 2001: 35).
Most people have strong beliefs and opinions about the world. No matter how sincerely held, however, beliefs and opinions can sometimes be mistaken. For example, there was a period in history when people sincerely believed that the world was square and that if they sailed to the edge of it they would drop off. Although a sincere belief, the view that the world was square was obviously mistaken, as explorers and scientists later proved. People now hold very different beliefs about the shape and geology of the world and it is conceivable that these too may be challenged and changed in the future.
Most people also have strong beliefs and opinions about what constitutes ‘right’ (good) and ‘wrong’ (bad) conduct. Moral beliefs, like other kinds of beliefs, can be mistaken, however, as centuries of moral inquiry have shown. Indeed, the philosophic literature is full of examples demonstrating convincingly (and giving good reasons for accepting) that some moral decisions and actions are clearly better than others (e.g. acts of compassion are better than acts of cruelty), and that some moral beliefs and theories seem manifestly ‘wrong’ and ought to be rejected (e.g. women lack moral capacity, black people have no moral worth, gay and transgendered people are moral deviants, Nazis had a moral obligation to rid the German nation of its ‘Jewish disease’, and so on).
It is because moral beliefs and opinions can be misguided, misinformed and mistaken — and because people can make mistakes in their moral judgments — that those at the forefront of moral decision-making must provide strong ‘warranties’ (good reasons) for their decisions and actions. It is not acceptable for a person to claim that his/her point of view is more worthy and more moral than another’s (is ‘right’) just because it is his/her point of view. For instance, I cannot claim that my point of view counts more or is more ‘right’ than your point of view just because it is my point of view. Much more is required, namely, there must be a sound justification for holding the point of view that is put forward. I must put forward good reasons why reasonable thinking and ‘right minded’ people should accept the point of view I am advancing. The question that arises here is: What constitutes a ‘sound justification’?
In the discussion to follow, attention will be given to clarifying the nature and importance of justification to moral decision-making and the role of ethical theory (in particular, ethical principlism, moral rights theory and virtue ethics) in providing justification and warranties (moral reasons) for our moral decisions and actions in the workplace.
M oral justification
Moral conflict and disagreement occurs frequently in health care contexts. This is not surprising given the ‘value ladenness’ of the health care practices that occur in health care domains. And given the complexity of the values that operate in health care domains, sometimes the choices we make will be ‘problematic’ insofar as they may express moral values, beliefs and evaluations that are not shared by others or which others do not agree with.
When experiencing situations involving moral disagreement and conflict, it is tempting to rely on our own ordinary moral experience and personal preferences to sustain the point of view we are advocating. As mentioned previously, however, sometimes our own ‘ordinary moral experience’ and personal preferences may not be reliable or worthy action guides because, as Kopelman (1995: 117) warns us, these can result from ‘prejudice, self-interest or ignorance’. In light of this, we need to look elsewhere to strengthen the warranties of (in short, to justify) our moral choices and actions. Moral theory (which has as its focus showing why something is moral in addition to showing that it is moral) is commonly regarded as the definitive source from which such warranties (justifications) can be reliably sought.
Justifying a moral decision or action involves providing the strongest moral reasons behind them. According to Beauchamp and Childress (1994: 13), ‘the reasons that we finally accept, express the conditions under which we believe some course of action is morally justified’. This account is not, however, free of difficulties. As Beauchamp and Childress (p 385) later point out, ‘Not all reasons are good reasons, and not all good reasons are sufficient for justification.’ For instance, a majority public opinion supporting the legalisation of euthanasia may constitute a good reason for decriminalising euthanasia yet stop short of providing a sufficient reason for doing so. For example, other ‘good and sufficient’ reasons might be put forward demonstrating why public opinion is not relevant or adequate to justifying legalised euthanasia, such as: majority opinion tells us only that a certain class of people hold a point of view, not whether that point of view is morally right (euthanasia could still be morally wrong despite a majority view to the contrary); public opinion is notoriously fickle and hence unreliable as a moral action guide — what is deemed ‘right’ by the majority today, could equally be deemed ‘wrong’ tomorrow, (violating the standards of consistency and coherency otherwise expected in the case of sound moral decision-making). Decision-makers thus need to not only provide ‘strong reasons’ for their decisions and actions, but to also distinguish:
a reason’s relevance to a moral judgment from its final adequacy for that judgment, [and also] to distinguish an attempted justification from a successful justification.
(Beauchamp & Childress 2001: 385, emphasis original)
Here, relevance (from the Latin relev aֿre to lighten, to relieve) can be measured by the extent to which the reason (belief) has direct bearing on and makes a material difference to the evaluation made as part of the process aimed at making moral judgments and choices/decisions. Adequacy (from the Lain adaequare to equalise, from ad-to + aequus Equal) can, in turn, be measured by the extent to which it fulfils a need or requirement (in this instance to provide sufficient grounds for belief or action) without being outstanding or abundant. An attempt is simply to ‘make an effort’; to succeed is ‘to accomplish’.
The notion of moral justification is not, however, without difficulties. One reason for this is that there exist a number of different accounts of what constitutes a plausible model of moral justification, and even of how a given or ‘agreed’ model of justification might be interpreted and applied (Beauchamp & Childress 2001; Kopelman 1995; Bauman 1993; Dancy 1993; Nielsen 1989). Some even suggest, controversially, that there can be no adequate model of justification since there is always room to question the grounds that are put forward as ‘good reasons’ supporting a particular act or judgment (see, e.g. Hughes 1995; Johnston 1989).
The problem of moral justification has long been recognised as a crucial one in moral philosophy. As Kai Nielsen reflects (1989: 53):
In ordinary non-philosophical moments, we sometimes wonder how (if at all) a deeply felt moral conviction can be justified. And, in our philosophical moments, we sometimes wonder if any moral judgments ever are in principle justified. Surely, we can find all sorts of reasons for taking one course of action rather than another. We find reasons readily enough for the appraisal we make of types of action and attitudes. We frequently make judgments about the moral code of our own culture as well as those of other cultures. But how do we decide if the reasons we offer for these appraisals are good reasons? And, what is the ground for our decision that some reasons are good reasons and others are not? When (if at all) can we say that these grounds are sufficient for our moral decisions? [emphasis original]
Beauchamp and Childress (2001) suggest three possible answers to these questions, namely, that we can appeal to either: (1) moral rules, principles and theories; (2) lived experience and case examples of individual personal judgments; or (3) a synthesis of both these (theoretical and experiential) approaches. They conclude that of the three approaches, the one that is the most plausible and warranted is the synthesised (or a ‘coherentist’) approach. This approach, unlike the other approaches, involves a strong synergy between theory and practice, with each informing the other and neither being immune to revision. They explain that in everyday moral reasoning, ‘we effortlessly blend appeals to principles, rules, rights, virtues, passions, analogies, paradigms, narratives and parables’ and that ‘we should be able to do the same’ in bioethics (p 408).
This issue will be explored more fully in Chapter 5, Moral problems and moral decision-making in nursing and health care contexts.
T heoretical perspectives informing ethical practice
Western moral philosophy has given rise to many different and sometimes competing theoretical perspectives or viewpoints on the nature and justification of moral conduct. Having some knowledge and understanding of these different perspectives is crucial not just to enhancing our understanding of the complex nature of moral problems and the controversies and perplexities to which they so often give rise, but also to enhancing our abilities to provide satisfactory solutions to the moral problems we encounter in our everyday lives. Unfortunately it is beyond the scope of this book to give an in-depth account of the many ethical theories that have been and remain influential in Western moral philosophical thought (see Chapter 4 of the third edition of this work [Johnstone 1999a]). There are, however, three theoretical frameworks that warrant attention here, namely, those that involve respectively (and sometimes interdependently) an appeal to:
1. ethical principles ( ethical principlism)
2. moral rights ( moral rights theory)
3. moral virtues ( virtue ethics).
These three approaches have emerged as having the most currency and credibility in contemporary health care contexts. Reasons for this include:
▪ they have largely emerged from and been refined by practice
▪ they are able to be readily and meaningfully applied to and in practice
▪ they are amendable to being revised and refined in order to be more responsive to the lived realities of everyday practice.
E thical principlism
One of the most popular theoretical perspectives used today when considering ethical issues in health care is the perspective called ‘ethical principlism’. Ethical principlism is the view that ethical decision-making and problem solving is best undertaken by appealing to sound moral principles. The principles most commonly used are those of: autonomy, non-maleficence, beneficence and justice. These principles are generally accepted as providing sound moral reasons for taking moral action.
Although not free of difficulties, ethical principlism has become increasingly accepted as a reliable and practical framework for identifying and resolving moral problems in health care contexts (Benjamin 2001; Little 2001). Since ethical principlism has gained much currency in contemporary discussions on ethical issues in health care (largely because of the influential work on the topic by Beauchamp & Childress [2001]), it is important that nurses have some knowledge and understanding of this approach.
What are ethical principles?
Ethical principles are general standards of conduct that make up an ethical system. To say that a principle is ‘ethical’ or ‘moral’ is merely to assert that it is a behaviour guide which ‘entails particular imperatives’ (Harrison 1954: 115). In this instance the imperatives involve specification (in the form of prescriptions and proscriptions) that some type of action or conduct is either prohibited, required or permitted in certain circumstances (Solomon 1978: 408). By this view, an action or decision is generally considered morally right or good when it accords with a given relevant moral principle, and morally wrong or bad when it does not. To illustrate how this works, consider the action of making a measurement using a ruler. If the line you have drawn measures the desired length of, say, 12 cm — as measured against your ruler — you would judge the length as ‘correct’. If, however, the line you have drawn is only 10 cm long — not the desired 12 cm — you would judge the length to be ‘incorrect’. By analogy, principles also function like rulers, insofar as they provide a standard against which something (in this case, actions) can be measured. For example, if an action fails to ‘measure up’ to the ultimate standards set by a given principle, we would judge the action to be ‘incorrect’ or, more specifically, morally wrong. If, however, an action fully measures up to the ultimate standards set by a given principle, we would judge the action to be ‘correct’ or morally right. The next question is: What are these moral principles against which actions can be measured?
Moral principles commonly used in discussions on ethical issues in nursing and health care include the principles of autonomy, non-maleficence, beneficence and justice. It is to examining the content, prescriptive force and application of these principles that this discussion now turns.
Autonomy
The term ‘autonomy’ comes from the Greek autos (meaning ‘self’) and nomos (meaning ‘rule’, ‘governance’ or ‘law’). When autonomy is used as a concept in moral discourse, what is commonly being referred to is a person’s ability to make or to exercise self-determining choice — literally, to be ‘self-governing’. Included here is the additional notion of ‘respect for persons’; that is, of treating or respecting persons as ends in themselves, as dignified and autonomous choosers, and not as the mere means (objects or tools) to the ends of others (Kant 1972; Benn 1971). The principle of autonomy, however, is a little different, and is eloquently formulated by Beauchamp and Walters (1982: 27) as follows:
Insofar as an autonomous agent’s actions do not infringe on the autonomous actions of others, that person should be free to perform whatever action he or she wishes (presumably even if it involves considerable risk to himself or herself and even if others consider the action to be foolish). [emphasis added]
What this basically means is that people should be free to choose and entitled to act on their preferences provided their decisions and actions do not stand to violate, or impinge on, the significant moral interests of others.
Both the concept and the principle of autonomy have important implications for nursing practice. For example, if autonomy is to be taken seriously by nurses, nursing practice must truly respect patients as dignified human beings capable of deciding what is to count as being in their own best interests — even if what they decide is considered by others (including nurses) to be ‘foolish’. In short, nurses must allow patients to participate in decision-making concerning their care. Given this, it soon becomes clear that the whole practice of ‘negotiated patient goals’ and ‘negotiated patient care’ as advocated by contemporary nursing philosophy has its roots in the moral principle of autonomy, and the derived duty to respect persons as autonomous moral choosers. It is not derived merely from a concept of ‘acceptable professional nursing practice’.
In application, the principle of autonomy would judge as being morally objectionable and wrong any act which unjustly prevents autonomous persons from deciding what is to count as being in their own best interests. The kinds of act which might come in for criticism here include, for example:
▪ treating patients without their consent
▪ treating patients without giving them all the relevant information necessary for making an informed and intelligent choice
▪ withholding information from patients when they have expressed a considered choice to receive it
▪ forcing information upon patients when they have expressed a considered choice not to receive it
▪ forcing nurses to act against their reasoned moral judgments or conscience.
It should be noted, however, that while the moral principle of autonomy is very helpful in guiding ethically just practices in health care contexts, it is not entirely unproblematic. Indeed, its uncritical and culturally inappropriate application in some contexts may, in fact, inadvertently cause rather than prevent significant moral harms to patients, for reasons which are considered in Chapter 4.
Non-maleficence
The term ‘non-maleficence’ comes from the Latin-derived maleficent — from maleficus, (meaning ‘wicked’, ‘prone to evil’), from malum (meaning ‘evil’), and male (meaning ‘ill’). As a moral principle, non-maleficence (literally ‘refuse evil’), prescribes ‘above all, do no harm’ which entails a stringent obligation not to injure or harm others. This principle is sometimes equated with the moral principle of ‘beneficence’ (considered below under a separate subheading) which prescribes ‘above all, do good’. Trying to conflate these two obviously distinct principles under one principle is, however, misleading. As Beauchamp and Childress (2001: 114) explain, not only are these two principles obviously distinct (for instance, our obligation not to kill someone does seem qualitatively and quantitatively different from our obligation to rescue someone from a life-threatening situation), but it is important to distinguish between them so as not to obscure other important distinctions which might be made in ordinary moral discourse. One instance in which ‘other important distinctions might need to be made’ is in the case of where both principles might apply to a given situation, but where the strength of the respective moral imperatives of each may nevertheless differ significantly and thus might prescribe quite different courses of action. As Beauchamp and Childress (p 114) point out:
Obligations not to harm others are sometimes more stringent than obligations to help them, but obligations of beneficence are also sometimes more stringent than obligations of non-maleficence.
‘Stringentness’ thus stands as an important distinction that might be obscured if the principles of non-maleficence and beneficence were conflated into one single principle. Beauchamp and Childress (2001: 115) conclude, however, that generally ‘obligations of non-maleficence are more stringent than obligations of beneficence’, and, in some cases, may even override beneficence particularly in instances where beneficent acts, paradoxically, are not morally defensible (e.g. depriving one’s family of food for a week and failing to pay the rent [thereby increasing the risk of eviction] because of donating the household’s weekly budget to charity).
Applied in nursing contexts, the principle of non-maleficence would provide justification for condemning any act which unjustly injures a person or causes them to suffer an otherwise avoidable harm (such as in the first case scenarios presented in Chapters 1 and 2 of this book, involving nurses who mistreated elderly people in their care).
Before continuing, some commentary is warranted on the notion of ‘harm’ and how it might be interpreted (given that it is open to a variety of interpretations). For the purposes of this discussion, harm may be taken to involve the invasion, violation, thwarting or ‘setting back’ of a person’s significant welfare interests to the detriment of that person’s wellbeing (Feinberg 1984: 34; Beauchamp & Childress 2001: 116–17). Interests, in this instance, are taken to mean ‘a miscellaneous collection, consist[ing] of all those things in which one has a stake’ together with the ‘harmonious advancement’ of those interests (Feinberg 1984: 34). Interests are morally significant since they are fundamentally linked to human wellbeing; specifically, they stand as a fundamental requisite (although, granted, not the whole) of human wellbeing (Feinberg 1984: 37). Wellbeing, in turn, can include interests in:
continuance for a foreseeable interval of one’s life, and the interests in one’s own physical health and vigour, the integrity and normal functioning of one’s body, the absence of absorbing pain and suffering or grotesque disfigurement, minimal intellectual acuity, emotional stability, the absence of groundless anxieties and resentments, the capacity to engage normally in social intercourse and to enjoy and maintain friendships, at least minimal income and financial security, a tolerable social and physical environment, and a certain amount of freedom from interference and coercion.
(Feinberg 1984: 37)
The test for whether a person’s interests and wellbeing have been violated, ‘set back’, thwarted or invaded rests on ‘whether that interest is in a worse condition than it would otherwise have been in had the invasion not occurred at all’ (Feinberg 1984: 34). For instance, if a person (e.g. a patient) is left psychogenically distressed (e.g. emotionally distressed, anxious, depressed and even suicidal) or in a state of needless physical pain and/or disability as a result of his/her experiences (e.g. as a patient in a given health care setting) our reflective commonsense tells us that this person’s interests have been violated and the person him/herself ‘harmed’. As the American philosopher Joel Feinberg (1984) further explains, the violation of a person’s welfare interests renders that person ‘very seriously harmed indeed’ since ‘their ultimate aspirations are defeated too’.
Beneficence
The term ‘beneficence’ comes from the Latin beneficus, from bene (meaning ‘well’ or ‘good’) and facere (meaning ‘to do’). The principle of beneficence prescribes ‘above all, do good’; in practice, it entails a positive obligation to literally ‘act for the benefit of others’ viz contribute to the welfare and wellbeing of others (Beauchamp & Childress 2001: 166). Acts of beneficence can include such virtuous actions as: care, compassion, empathy, sympathy, altruism, kindness, mercy, love, friendship and charity. It is recognised, however, that bestowing benefits on others is not always without cost to the benefactor. Thus there are some limits to the principle; that is, it is not ‘free standing’ and its application can be appropriately constrained by other moral (for example, utilitarian) considerations. To put this another way, we are not obliged to act beneficently towards others when doing so could result in our own significant moral interests being seriously harmed or compromised in some way.
Although the notion of ‘obligatory beneficence’ remains a controversial one in moral philosophy (for instance, it is popularly accepted that we are not ‘morally required to benefit persons on all occasions, even if we are in a position to do so’), there are nevertheless a number of conditions under which a person can indeed be said to have an obligation of beneficence and that this obligation might, sometimes, be overriding. These conditions, devised by Beauchamp and Childress (2001: 171), are as follows:
a person X has a determinate obligation of beneficence toward person Y if and only if each of the following conditions is satisfied (assuming X is aware of the relevant facts):
1. Y is at risk of significant loss of or damage to life or health or some other major interest.
2. X’s action is needed (singly or in concert with others) to prevent this loss or damage.
3. X’s action (singly or in concert with others) has a high probability of preventing it.
4. X’s action would not present significant risks, costs, or burdens to X.
5. The benefit that Y expected to gain outweighs any harms, costs, or burdens that X is likely to incur.
They go on to suggest that it is only when these conditions are satisfied that a person’s ‘general duty of beneficence’ becomes a ‘specific duty of beneficence’ towards another given individual.
The principle stands to have an interesting and useful application in nursing practice. Consider the following case (personal communication; names have been changed).
Mrs Jones, a Jehovah’s Witness, is admitted to an intensive care unit in the final stages of life, suffering from advanced hepatitis B and severe liver failure. She has a slow internal haemorrhage and is only semiconscious. Before her alteration in consciousness she had given her doctors a written statement specifically requesting that she not be given a blood transfusion under any circumstances. Upon her arrival in the unit, however, the attending doctor prescribes a unit of blood and requests that it be given immediately. Mrs Jones’ husband and children are all present and, upon overhearing the doctor’s request, become very upset. Mr Jones approaches the doctor and asks that his wife not be given the blood transfusion. He reminds the doctor that Mrs Jones has made explicit her wish not to have a blood transfusion under any circumstances. Nurse Smith, the registered nurse caring for Mrs Jones, hears the discussion and has to make a decision whether or not to intervene on her patient’s behalf. In making her decision, Nurse Smith might appeal to the principle of beneficence in the following manner:
1. Mrs Jones, a Jehovah’s Witness in the final stages of life, is at risk of suffering a significant loss (a violation of her spiritual values and beliefs) if she is given the medically prescribed blood transfusion
2. action by Nurse Smith, the attending nurse, is needed to prevent Mrs Jones from experiencing the loss in question
3. Nurse Smith’s action of refusing to administer the prescribed transfusion would probably prevent Mrs Jones’ loss
4. Nurse Smith’s action will not present a significant risk to her (i.e. she will not lose her job)
5. the benefits gained by Mrs Jones outweigh any harms Nurse Smith is likely to suffer (given that Nurse Smith autonomously chooses to uphold Mrs Jones’ interests, and does not stand to suffer any morally significant consequences of her actions).
In this particular case the nurse refused to give the transfusion which had been prescribed. When the doctor insisted that it be given, the nurse pointed out that the transfusion would probably be of no clinical benefit to Mrs Jones, as she was clearly in the end stages of her disease — to put it bluntly, ‘she was dying’. Nurse Smith then suggested to the doctor that perhaps he would prefer to administer the transfusion himself. Interestingly, the doctor declined this invitation, and the transfusion was not given. Mrs Jones died a short while later, without having to experience a needless violation of her expressed wishes, values and beliefs.
In summary, by this principle, any act which fails to address an imbalance of harms over benefits where this can be done without sacrificing a benefactor’s own significant moral interests, warrants judgment as being morally unacceptable.
Justice
The principle of justice (its nature and content), unlike the principles above, is not so amenable to definition or quantification. As a point of interest, questions concerning what justice is and what its origins are have occupied the minds of philosophers for nearly 3000 years, and to this day remain the subject of intensive philosophical debate (MacIntyre 1988; Nussbaum 2006; Powers & Faden 2006; Solomon & Murphy 1990). Significantly, the end result of this great philosophical debate has not been the development of a singular and refined universal theory of justice, but the development of a range of rival theories of justice (MacIntyre 1988). Different conceptions of justice (from the Latin justus meaning ‘righteous’) have included: justice as revenge (retributive justice — e.g. ‘an eye for an eye’); justice as mercy (Christian ethics); justice as harmony in the soul and harmony in the state (Pythagorean ethics, 600 BC–1 AD); justice as equity (impartiality and fairness); justice as equality (‘equals must be treated equally, and unequals unequally’); justice as an equal distribution of benefits and burdens (distributive justice and redistributive justice); justice as what is deserved (‘each according to one’s merit or worth’); and justice as love (Beauchamp & Childress 2001; MacIntyre 1985, 1988; Nussbaum 2006; Outka 1972; Rawls 1971; Powers & Faden 2006; Nozick 2007; Singer 1991; Solomon & Murphy 1990; Waithe 1987). More recently justice has been conceptualised as reconciliation and reparation (restorative justice), a key purpose of which is to ‘restore broken relationships’ (Tutu 1999; see also Johnstone G 2002; Sullivan & Tift 2006). Arguably one of the most novel conceptions of justice is that of justice as a basic human need that, like other basic human needs (notably those famously depicted in Maslow’s hierarchy of human needs), is critical to producing the necessary conditions of life (Taylor 2003, 2006).
Given these different conceptions of justice, the problem arises of what, if any, conception of justice nurses should adopt? While it is beyond the scope of this book to answer this question in depth, there is nevertheless room to advocate at least three senses of justice which nurses might find helpful: (1) justice as fairness and impartiality (equity justice); (2) justice as the equal distribution of benefits and burdens (distributive and redistributive justice); and justice as reconciliation and reparation (restorative justice). It is these three senses of justice which will now be considered.
Justice as fairness and impartiality (equity)
Justice as fairness finds interpretation in terms of ‘what is owed or due’. Here, it can be said that ‘one acts justly toward a person when that person has given what is due or owed’; an injustice, by this view, would involve:
a wrongful act or omission that denies people benefits to which they have a right, or distributes benefits unfairly.
(Beauchamp & Childress 2001: 226)
If a person deserved something, justice is done when that person receives that particular something. Here, the ‘something’ may be either positive (a reward) or negative (a punishment). This view relies very heavily on an ‘intuitive’ sense of justice. For example, we may ‘feel’ it is unjust to punish or censure someone for a harm they did not cause, or not to punish someone for a harm they did deliberately cause. Likewise we may feel that it is unjust to reward someone for an accomplishment to which they contributed nothing, and yet not reward someone who contributed a great deal.
We do not need to look far in nursing practice to find sobering examples of where the principle of justice as fairness has been violated. Consider cases where nurses have been subjected to severe legal and professional censure, held solely responsible and have even lost their jobs because of making an honest mistake (Johnstone 1994; Johnstone & Kanitsaki 2006a).
Other examples involve cases where nurses have gained promotion or have secured employment on the basis of their claiming credit for the work of either their peers or their subordinates. At the other end of the continuum, some nurses have been denied promotion or employment because their superior has ignored, or refused for whatever reasons to recognise significant professional achievements the nurse applicant has in fact made.
How, then, might we make choices on this view of justice? One possible approach which has received widespread attention is that discussed by the contemporary American philosopher John Rawls. He argues, for example, that if parties are to exercise truly just or fair choices, they must choose from a hypothetically ‘neutral’ position, or from a position of what he describes as being ‘behind the veil of ignorance’ (Rawls 1971: 12). From such a position he argues (p 12):
no-one knows his [sic] place in society, his [sic] class position or social status, nor does anyone know his [sic] fortune in the distribution of natural assets and abilities, his [sic] intelligence, strength, and the like … [T]his ensures that no-one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. Since all are similarly situated and no-one is able to design principles to favour his [sic] particular condition, the principles of justice are the result of a fair agreement or bargain.
While Rawls’ view is problematic (it is open to serious question whether, in fact, all choosers are or could ever be ‘similarly situated’, as he assumes), it has nevertheless been extremely persuasive. A key reason for this persuasiveness relates to broader philosophical demands that are inherent in Western bioethics and which emphasise, among other things, that moral choice and judgment should be exercised from a position of impartiality and objectivity. However, whether in fact human beings are ever capable of exercising truly impartial and ‘objective’ choices — indeed, of choosing from behind that veil of ignorance — remains a matter of some controversy. Some critics also argue that Rawls’ theory is too narrow, pointing out that it has failed to take a more responsive approach to social cooperation and the needs of people who are disabled, ‘not equal’, disadvantaged, and who belong to other non-human species (see Nussbaum 2006). One reason for this is that it pays too much attention to patterns of distribution, rather than to the ‘procedural issues of participation, deliberations and decision-making’ (Young 2007: 600). Moreover, Rawls’ theory fails to take into account that what is important is not just the distribution of benefits and burdens per se, but how various distributions came about (Nozick 2007).
Despite its weaknesses, Rawls’ justice theory provides a useful catalyst for thinking about the notion of fairness and how it might be used in real-life situations. It also alerts us to some of the potential difficulties of trying to determine and apply an uncontentious view of justice.
Justice as an equal distribution of benefits and burdens
A second (and related) sense in which justice can be used is that pertaining to ‘distributive justice’; that is, an equal distribution of benefits and harms. By this view, all people are required to bear an equal share of their society’s benefits and burdens. Such a view admits that all persons must have equal claims to liberty and opportunity, but in a way that is compatible with the claims of others. As well as this, there must be equal access (and opportunity to gain access) to positions of authority and power, and there must be an equal distribution of wealth and income (a point often missed in conservative constructions of justice as equity — such as outlined above). The only morally acceptable exception to this would be if an unequal distribution would work to everyone’s advantage (Beauchamp & Childress 2001: 226), or where an unequal distribution of benefits would be necessary so as to ‘maximise the minimum level of primary goods in order to protect vital interests in potentially damaging or disastrous contexts’ (p 226). Simply put, inequalities in distributing benefits and primary goods are ‘just’ as long as this results in the least well-off (i.e. those who are already disadvantaged unfairly) achieving a decent minimum level of wellbeing (i.e. being advantaged by the benefits which have been conferred unequally).
As with the fairness sense of justice discussed earlier, we do not need to look far to find sobering examples in nursing where the principle of distributive justice has been violated. In many cases, nurses have had to (and continue to) bear unequal and intolerable burdens on account of certain inequities in the distribution of scarce health care resources. For example, historically nurses have had to endure poor and unsafe working conditions with a maximum of responsibility and a minimum of financial or personal reward (Johnstone 1994, 2002a).
In considering the fairness and the distributive senses of justice, it is instructive to note that both uphold two common minimal principles: formal equality (‘equals must be treated equally, and unequals must be treated unequally’); and a mixture of autonomy and beneficence (‘we all ought to bear certain burdens, usually of a minimal sort, for the common good’) (Beauchamp & Childress 1989: 256–306).
In calculating the balance or distribution of harms and benefits, notions of comparative and non-comparative justice are also used. Justice is ‘comparative’ when what a person deserves can be determined only by balancing the competing claims of others against the person’s own claims (Beauchamp & Childress 2001: 226–37). For example, whether a nurse qualifies for a job or a promotion will depend largely on the competing claims of the other applicants. If the other applicants are more qualified and more experienced, it seems reasonable to hold that they are more ‘deserving’ of the position being offered. Justice is ‘non-comparative’, on the other hand, when ‘desert is judged by standards independent of the claims of others’ (pp 227–30). For example, a nurse who is guilty of breaching acceptable professional standards of conduct deserves to be censured, or even deregistered, if the breach of conduct warrants such an action; a nurse who is innocent of professional misconduct, however, does not deserve to be censured or deregistered.
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