Medical ethics

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chapter 20 Medical ethics

INTRODUCTION

‘Ethics’ is a word derived from the Greek ethikos, which means ‘habit’ or ‘custom’. Put simply, in modern usage it is the study of how we ought to live or act in response to the situations confronting us in daily life. Medical ethics in particular is a branch of bioethics and is the study of how we ought to live or act as doctors. Ethics, being a branch of philosophy, relates to things such as ‘right’, ‘wrong’, ‘duty’ and ‘morality’. Making decisions of an ethical nature in medical practice is often difficult and demanding, and the clinician has to balance medical considerations with legal and moral ones.

Taking the time to reflect upon ethical issues, and having a structured approach to doing this, can help clinicians to navigate through many potentially challenging situations. Not taking time for this can compound ethical and moral concerns. This has effects upon our wellbeing and can also have medico-legal implications. As with many medico-legal dilemmas, ethical problems are often compounded by poor communication.

This chapter does not present a detailed analysis of particular and complex bioethical issues such as euthanasia, stem cell research or abortion. Nor does it make concrete pronouncements about the ‘correct’ view on given topics or course of action in given situations. It does, however, give an overview of generic ethical terms, concepts and methods that can be applied by the clinician to particular situations. We are interested here in ‘applied ethics’ and not simply ‘theoretical ethics’ or ‘meta-ethics’.

DEFINITIONS, TERMS AND MEANING

Many ethical conflicts lie in our understanding and interpretation of words. It is therefore useful before considering principles and concepts in more detail that some remarks are made about the language of ethics and the meaning of words commonly used in ethical discourse. It is easy to assume that different people mean the same thing by a word when they use it. This assumption gives rise to many misunderstandings. For example, one person might interpret ‘freedom’ as having all external restraints removed from their behaviour, whereas another might equate freedom with an internal state of self-awareness, balance and self-control. One person might equate happiness with pleasure or wealth, whereas another might equate it with spiritual enlightenment. One of the first points is that we should reflect on the meaning of the words we often take for granted.

As was mentioned, there is a distinction between meta-ethics and applied ethics. Meta-ethics is the ‘philosophical inquiry into the concepts, theories, language and intellectual foundations of ethics—as opposed to practical ethical questions’.1 So when a moral philosopher seeks to say what it means to say that something (a value or action) is ‘right’ or ‘wrong’, they are seeking to clarify the language or concepts of moral judgments rather than to say what one ought or ought not to do.2 It is like standing beside (meta) ethical actions and seeking to provide conceptual clarity to the usage of moral language.

Normative ethics is ‘concerned with establishing basic ethical principles or standards (“norms”—from the Greek for builder’s rule or square). Examples include normative theories (e.g. deontology or teleological), normative principles (e.g. the principles of bioethics), and declarations or statements whether on the core values of medicine or on specific duties of doctors and nurses in particular circumstances’.1 The following definitions of terms commonly used in ethical discourse are from the Oxford Dictionary.

ETHICAL APPROACHES

MICRO-ETHICS AND MACRO-ETHICS

In ethical discourse, community debate and media coverage, most attention is given to macro-ethical issues such as euthanasia, abortion, stem cell research and genetic engineering. These issues, as important as they are, are nevertheless far removed from the vast majority of clinical encounters between doctors and patients. All clinical encounters contain ethical issues but they are generally not obvious. These micro-ethical issues include everyday ethical concerns relating to such things as the doctor–patient relationship, communication, information giving, certificate writing, the management of common problems, and physical examination. As every clinical encounter contains ethical content and is ethically relevant, it is deserving of consideration, whether it be:

It is therefore important to be reflective about all aspects of clinical medicine and not just those aspects that are more prominent in the media. When considering the factors that affect patient satisfaction or have potential medico-legal implications, it is far more common for these to involve the micro-ethical rather than the macro-ethical.

MEDICAL ETHICS AND THE LAW

It is beyond the scope of this chapter to give a detailed discussion of the laws pertaining to medical practice. In any case, laws vary so widely between and within countries that any such overview would be of little relevance. The best source of information relating to medical law is likely to be one’s medical defence association. The broader issue relevant to ethicists regarding the relationship between law and ethics is: are they the same and do they lead to the same course of action?

The case could be made that they reflect each other in that laws reflect ethical principles and morality, and ethical and moral precepts are enshrined in law. Indeed, some would argue, as Plato did, that ethics is the bedrock of the law. If you offend one you offend them both, if the laws of the land are just.

Another case could be made that ethics and law are different. They may overlap but they are not the same, in that what is considered legal is generally, but not always, ethical. For example, a law could be made that some might consider unethical, such as apartheid being written into law. Equally, a thing that some people might consider ethical could be illegal, such as abortion.

In an endeavour to resolve the potential conflict, some might argue that if ethics and law appear to conflict then we may be confused about what is ethical, or an unjust law has been enacted. Either:

From a clinician’s perspective, when there is concern about a course of conduct that seems ethical but conflicts with the law, it is pertinent to seek advice from a legally qualified person or organisation. If there is no way of following what seems to be legal and ethical at the same time then it might be useful to reflect more deeply on our assumptions about what is truly ethical. Sometimes, in an attempt to preserve both, a difficult decision remains that depends upon a clinician weighing up how important the ethical principle is versus how severe the legal consequences are for not following the law.

PRINCIPLES-BASED ETHICS3

The meaning of the word ‘principle’, in the broadest sense, comes from the Latin principium meaning ‘beginning or source’. It also carries the meaning of a fundamental truth, law or motive force. It is also a starting assumption as the basis for further reasoning or the foundation upon which many other things are based. The principle ‘Do no harm’, for example, spawns a vast array of other societal morals, manners, customs, precepts, rules and laws. Whether we accept the validity of traditional principles or not, principles of one sort or other, consciously or unconsciously, form the basis of our actions. We may govern our actions with one overriding principle, a number of complementary ones, or even a number of conflicting principles. We could be consciously aware of those principles we live by or completely oblivious to them; nevertheless they govern our conduct.

Principles-based ethics has been the most widely adopted and taught paradigm in contemporary medical ethics. Some of these, such as autonomy and paternalism, and beneficence and non-maleficence, are complementary, like two sides of the same coin. In medical ethics discourse, the most commonly cited principles are:

A common argument against principles-based ethics, or a potential weakness in it, is that principles don’t necessarily provide us with consistent, unambiguous conclusions and therefore we have to trade one principle off against another. Put another way, some would say that no principle is ever found to be absolute—that is, operating under all cases—and so in order to maintain autonomy, for example, you might sometimes have to sacrifice beneficence. Such might be the case if a doctor recommends a course of management that appears to be beneficial to the patient but the patient chooses to decline the treatment. Even more problematic is when a patient requests a course of management that appears to be detrimental. Here the ethicist may say that the doctor needs to prioritise their principles and also to remember that, at the end of the day, the doctor is an autonomous agent as well. Regardless of what a patient chooses, the doctor is largely concerned with determining what they will do rather than what the patient will do.

It is often assumed that the various considerations affecting decisions necessarily conflict or compete. They need not, but it is often difficult to transcend apparent contradictions in competing principles and values as well as to balance medical, legal, social and moral ‘goods’. Reflecting upon values is often considered a luxury that busy clinicians do not have time for, but many ethical conflicts arise as the result of an unreflective and inflexible approach to understanding values and principles. Conflicts are often resolved as a result of taking the time for a broader or deeper view of the issues involved.

Autonomy and paternalism

The balance between autonomy (personal freedom to choose) and paternalism (respect for the advice of an authority figure) is a hotly contested ethical issue. The boundaries of personal freedom and liberties are being pushed ever further, often at the expense of traditional values and authority figures such as parents, governments, teachers and, of course, doctors. The traditional role of the doctor has been that of a ‘paternal’ or parental figure who, like a parent, has knowledge, skills, objectivity, experience, integrity, self-sacrifice and strength that the patient—child—needs but may not have. Like a parent, a paternalistic doctor is obliged to care wholeheartedly for the wellbeing of the patient, who may be unwell and vulnerable.

Being paternalistic can also encompass the fostering of the eventual independence or autonomy of the patient, although conventional use of the word in ethical discourse tends to ignore this aspect of paternalism. Paternalism has therefore come in for considerable criticism in recent times, and perhaps rightly so, if it is missing one or more of the abovementioned pillars upon which a reasonable application of paternalism rests (that is, knowledge, skills, objectivity, experience, integrity, self-sacrifice and strength). For example, a doctor may be deficient in knowledge or skills about technical or human matters. The doctor may lack objectivity, care, integrity or strength, or may seek to gain some personal benefit by fostering the dependence of the patient. These examples of how paternalism breaks down are not an argument against the need for authority altogether but, rather, against its misuse. A more enlightened view of paternalism may encompass the practice of a beneficent, compassionate, moderate and reasonable style of paternalistic medicine, also aimed at educating the patient towards independence and informed decision-making. That form of paternalism which is associated with the dependency and negation of a rightful use of self-determination is rightly coming under close scrutiny.

To say that autonomy or self-government is inherently and always good is as questionable as asserting that paternalism is always bad. Reflecting on the rightful use of autonomy also raises the question, ‘Which part of the “self” should one be governed by?’. What is the natural order of the elements in human nature for sound self-government and ethical behaviour? Are there some aspects of ourselves that we would do well not to be governed by? It would seem obvious that many impulses, emotions and unreflective reactions are not a sound basis for autonomy and can lead to much harm for oneself and others. For true autonomy we need competence that is associated with internal qualities such as awareness, reason, emotional regulation and impulse control as well as the more commonly recognised requirements such as having and understanding information (informed consent) and freedom from coercion. Therefore, a simple and more enlightened conception of autonomy can coexist with and support a more enlightened view of paternalism. When the rightful use of either breaks down, ethical complexity and conflicts tend to follow.

Consent

Consent is a principle that links closely with autonomy and relates to our innate right to self-determination. For someone to have a treatment or any limitation of their freedom against their consent would have to be underpinned by very powerful arguments for such strong use of paternalism. Such arguments could include that the person was a significant danger to themselves or others or that their competence was so severely affected that they were unable to make a reasonable decision.

When ethicists speak about consent it is nearly always linked with the word ‘informed’. When a patient gives consent we assume that they have been informed of all the relevant information in a way that they can understand. Being aware of and responsive to the amount of information that an individual patient requires and wants is an important micro-ethical aspect of the doctor–patient relationship.

Patients who are considered incompetent—such as children, the unconscious, the demented, the intoxicated and those with a major mental illness or brain syndrome—would not generally be considered able to give informed consent. Although such a person (a child, for example) may not be able to give informed consent because of their inability to understand information, this does not mean that a treatment should be given to them without trying to enlist their trust, willingness and cooperation. When a person is unable to give informed consent, the duty for making decisions may move to another party such as a parent, the doctor, someone who has been granted power of attorney or a guardian determined by the courts. It is not that the decision-making principle has changed—the decision should still be ruled by reason and compassion, but the reason and compassion will be delivered from another source until the person is able to give consent themselves.

Justice

In most ethical discourse, justice is generally interpreted as being related to the fair and equitable distribution of resources—distributive justice. To consider justice in such a narrow way is to do an injustice to its full meaning and importance. Distributive justice is just one way of expressing justice, but there are many more. The more important question relates to what justice is in a more universal sense.

Plato’s conception of justice related to a harmony and order of the psyche from which flowed the actions of a just person or community, whether in relation to money or anything else. Others relate justice to observing basic rights, obedience to natural law or the laws and conventions of society as dictated by the law makers and interpreters. The fact that many have received justice according to the laws of the land but still feel that they have been treated unjustly suggests that community laws do not always reflect justice. Reflecting upon the relationship between law and justice raises a number of questions, including the following:

Humankind could see itself as the master of the law or the servant of the law. For example, an assertion that all laws of morality and human conduct are human-made, and that there is no higher authority, has many implications. It will be likely to lead to a law-making process based on the opinions and fashions of the time. We have the freedom to make them as we choose. On the other hand, an assertion that laws are absolute and made by some higher authority, although expressed in different ways by different societies, makes it imperative to delineate and obey these laws. In this view, anything but obedience is futile, as true laws are non-negotiable. By one means or another, nature will enforce its own laws and will teach us the principles of morality.

Our answers to questions such as those posed above also lead to quite different interpretations of the origin of natural phenomena such as illness. One interpretation might say that illness is a chance event, and another might call it the working of natural justice.

Beneficence and non-maleficence

Two of the most fundamental ethical principles since the time of Hippocrates have been beneficence (do good) and non-maleficence (do no harm). They would seem to be self-evident and simple ethical principles against which no reasonable ethicist would argue, and about which there should be no contention. They are not, however, as simple as they appear. One reason is that we all value different things and what we value has a direct effect upon what we believe are ethical and unethical actions. What one person thinks is a good another thinks is a harm, and vice versa. For example, say one person values personal integrity and another values material wealth or status. In both cases each person is pursuing what they value as they perceive it, and interpretations of benefits and harms will be interpreted through the filter of such perceptions. Secondly, we can value physical, psychological, social, economic and spiritual goods and will prioritise them differently. Good on one level might also be associated with harm on another. So, for example, a person might benefit physically from receiving an organ transplant but perceive a moral harm if that organ was attained in an unethical way.

Other questions that could be asked include:

The more usual usage of beneficence and non-maleficence implies that it is the doctor’s duty at all times to benefit their patients—physically, psychologically and socially—and not to harm them in any way unless the harm (e.g. performing a painful procedure) is an unavoidable result of attaining a greater benefit (e.g. curing an illness). Harms occur in clinical medicine even with the best intentions in the world, but it is incumbent upon the doctor to take all reasonable steps to prevent such harms and to intervene if they occur. Indeed, with the rise of technology, the increasing tendency towards intervention and the increasing use of pharmaceuticals, the potential for harm has escalated enormously in modern medicine. Harms as a result of an unforeseen side effect of a medication, however, would be seen as far less an ethical concern than the same harms as a result of medical negligence.

VIRTUE ETHICS

Virtues have been written about and exhorted in myth and fable in every culture since the dawn of human history. Cultures often vary widely on particular customs but they tend to agree on the core virtues, although they may give slightly different emphasis or precedence to one or another.

Virtues were previously defined as moral excellence, uprightness and goodness. Although they may bear a resemblance to the principles previously described, they are not the same thing. Virtues are qualities of our nature that are reflected in our words and conduct. We may feel unfamiliar with an overarching definition of virtue or find it less than instructive, but we will all be familiar with the common virtues. The four cardinal virtues (the original meaning of cardinal is ‘hinge’) spoken of by Plato are wisdom, justice, temperance (moderation) and courage. In Christian theology were added the other three virtues of faith, hope and charity. The list, however, could be extensive: patience, kindness, compassion, honesty, determination, magnanimity and so on. Although we might agree about the importance of virtues, we often disagree about them in practice. In viewing events, individuals often vary in their interpretation of virtue or its absence. For example, what one may interpret as patience and meekness another may interpret as weakness.

Some philosophers and ethicists, like Plato, exhorted people to observe a purity and kind of transcendent quality in their pursuit of virtue. Plato said that they are the expression of an enlightened, happy and refined soul or psyche. Aristotle, on the other hand, exhorted the middle ground between virtues and vices, or the ‘mean’ between the two as being the more practical path.

To use virtues as a moral guide for decision-making means that one would have to reflect on them sufficiently to be able to recognise them and then to practise them over a considerable period of time until they became natural to us. Thus, upbringing and education are the first and most important training grounds for the development of virtue.

CONSEQUENTIALISM AND DEONTOLOGY

In ethical debate there are two popular ways of deciding the rightness or wrongness of an action. These can be broadly categorised as conseqentialism and deontology.

Deontology (deon is a Greek word meaning ‘duty’) is the oldest and most widely used approach to ethics. It says that actions are right or wrong depending upon whether or not they accord with duty. In this view, consequences are not irrelevant, but are of secondary importance compared to what one is duty-bound to do. The eighteenth-century philosopher Immanuel Kant is the most often quoted deontologist in the study of ethics, and ethical formulations such as the Ten Commandments and the Hippocratic Oath would be considered well-known deontological frameworks. Most deontological codes contain broad and concrete statements about what should or should not be done, and such codes are a common part of daily life. Codes of conduct and practice guidelines could also be considered examples. Common arguments against deontological approaches are that it is a simplistic approach but not reflective or perhaps reasoned. Further, although they may help to guide conduct in the majority of cases, they are not flexible enough to accommodate all situations. It would not be difficult to come up with circumstances where one deontological precept conflicted with another. In such a situation one would either need to sacrifice a duty, prioritise duties, or have a more flexible interpretation of them.

Consequentialism is an approach which says that actions are right or wrong not because of anything inherently right or wrong in them but because of the consequences that those actions are expected to produce. Utilitarianism, originally described by Jeremy Bentham and John Stuart Mill, two eighteenth-century English philosophers, is the most popular form of consequentialism and has three main tenets. First, consequences are the mark of the ethical rightness of actions; second, the best consequence is to maximise happiness (that is, the greatest happiness for the greatest number); and third, happiness largely equates with pleasure (that is, what pleases the greatest number). Some would say that the approach could be summed up by the statement, ‘The end justifies the means’. There are some difficulties with this approach despite the fact that it is attractive at first glance. Although it sounds simple in theory, in practice it is very difficult to predict the outcomes of actions, especially in complex moral, political or social situations. Furthermore, it is not difficult to justify actions that would otherwise seem unjust, on the basis that the injustice affects a smaller segment of the community and if one appeals to some future desirable outcome. It would not be difficult to make a utilitarian argument to support many things that might otherwise be considered morally repugnant.

RIGHTS AND DUTIES

Another way of considering ethical decisions is by appeal to basic rights. Most would agree that we have, for example, a right to food, water, education, shelter, safety and basic medical care. To have these things is right and to be denied them is wrong. Hence there are an increasing number of bills of rights with their spheres of influence, all the way from international politics to family conduct.

Unfortunately, much discussion about rights tends to revolve around the things that people expect to be provided with, but tends to ignore the fact that a right to anything is only meaningful in relation to the duty required to provide that right. If, for example, we have a right to healthcare then that implies that someone has a duty to provide it, such as government, community, doctors or other health workers. Rights without duties are largely meaningless. Therefore, if one wishes to promote human rights then one really needs to promote human duties.

Another problem with the rights-based approach is that although most would agree about basic rights like the ones mentioned above, many would argue about rights in relation to more contentious issues. For example, some would say that the right to freedom of speech only goes so far and that at some point speech has to be censored if it is harmful to individuals or communities in some way. A socially liberal view might support the right to gay marriage, but a more conservative or religious view might deny that there is any such right when it is counter to their definition of ‘natural’ laws. People also argue about who is or is not a morally relevant entity with regard to rights. For example, some argue for animal rights and against the rights of the unborn fetus. If one is deemed to be morally irrelevant and therefore not protected by rights, then, as a natural consequence, a range of actions become valid which would have otherwise have been considered wrong, such as animal abuse or abortion.

THEOLOGICAL APPROACHES AND NATURAL LAW

A small number of major religions give moral guidance to the majority of people on the planet. This should make ethical decision-making a simple process, but it does not. There are enormous variations within those religions through the various denominations and sects, and there are a large number of minor religions. Further, cultural influences on religious precepts and interpretations are enormous and blur the distinctions between what is spiritually right and what is culturally expected. Added to this is the fact that, rightly or wrongly, groups and individuals interpret those religious precepts in many different ways.

Despite this, the similarities between different religions’ ethical instructions are probably greater than the differences, although the differences are often what attracts the most attention. Although religions might differ in emphasis and expression, they largely condone virtues such as compassion, truthfulness, justice and wisdom, and denounce such things as stealing, taking life and adultery.

The main underpinning of religious-based ethical approaches is through the appeal to natural law. In this view, nature—whether it be the nature of the physical universe, society or human psychology—is governed by natural laws given by a higher being. Human-made laws exist only to reflect these laws and uphold them. Disobedience of these laws, no matter whether it seemed expedient at the time, will inevitably lead to greater problems later on.

Problems with this approach obviously relate to disagreement about what these natural laws are, even among people from the same religious group. The other issue is that we live in an age where an increasing proportion of the community hold secular views and do not recognise that such laws exist. As a result there is an increasing move towards the separation of religion and the judiciary and parliament in most countries around the world.

OTHER THEORIES