Medical Ethics, Law and Communication at a Glance ebook

Patrick Davey

Anna Rathmell

Michael Dunn

Charles Foster

Helen Salisbury

1What is medical ethics?

Introduction

Medical ethics is a discipline concerned with the systematic analysis of values in healthcare.

But this definition only gets us so far. We need to be clear about what healthcare values are, what it means to systematically analyse these values, and what it means to do so in the varied policy and practice contexts in which healthcare takes place. The first issue relates to the content of medical ethics, the second to its methods and the third to its scope. Each of these issues will be considered in turn.

The content of medical ethics

Medical ethics is founded on the idea that there are discrete ethical values specific to healthcare. Put another way, practitioners working in health owe something to those whom they care for precisely because they are involved in healthcare provision, and such provision is importantly different from other professions and the general obligations that human beings owe to each other. The justification for this special set of ethical values is usually articulated by observing that one’s health is fundamental, in some sense, to one’s life plan. Because being healthy is a prerequisite to pursuing other valuable goals, having access to healthcare, being able to make decisions about the care one receives, and being treated well within the healthcare relationship, is morally significant.

Much work in medical ethics is concerned with specifying the correct ethical values that underpin good healthcare. This project is one that is necessarily sensitive to moral theory, and that most commonly takes the form of identifying so-called ‘mid-level principles’ that seek to reflect and combine different theoretical considerations to provide a coherent, and ethically justifiable, roadmap for good practice (see Chapter 2).

Once ethical principles for healthcare have been determined, the medical ethics project broadens out. One other activity is to attend carefully to how these abstract principles ought to be applied to specific healthcare decision-making settings in diverse parts of the world. The challenge of translating ethical values into practice is no small feat. The varied social, cultural, and economic differences that are characteristic of different healthcare institutions means that careful analytic work needs to be undertaken to know precisely what it means to do good for a patient, here.

Another activity that medical ethicists attend carefully to is the common situation in which it is evident that value conflicts arise between competing principles, and therefore where there is genuine uncertainty about what a healthcare practitioner or policy-maker ought to do. Such conflicts can take different forms. On the one hand, they might be akin to a traditional moral dilemma, where there are good ethical reasons for pursuing two different and mutually exclusive courses of action. What ought to be done, for example, when a teenage patient refuses a straightforward and life-saving blood transfusion on the basis that such a procedure would go against the religious beliefs that they hold dear? On the other hand, the conflicts might be less fundamental in nature, perhaps where a doctor is clear about what ought to be done, but is unable to act as they ought due to practical constraints, such as institutional rules or cultural expectations in her workplace. Addressing conflicts of this kind raises questions about the role of medical ethics in advocating for policy or practice changes, and also shifts the locus of analysis onto issues such as ‘moral distress’ that can arise when practitioners are prevented from acting as they ought.

The methods of medical ethics

Medical ethics is a broad church. Those contributing to medical ethics use a variety of methodological approaches, including both ethical analytic and empirical methods.

Methods of ethical analysis are deployed in order to develop arguments that aim to settle these conflicts – to determine what ought to be done in a situation of ethical uncertainty. Justification and argument are the methodological characteristics of this normative enterprise. A defence to the claim that ‘Doctors ought to do X’ depends on providing a justification, based on the reasons in support of this argument, against the reasons supporting the claim that ‘Doctors ought not to do X’ or ‘Doctors ought to do Y’. The extent to which a claim counts as a satisfactory answer to the question ‘What ought a doctor to do here?’ is judged in light of the standards of reasoning that apply to arguments generally. Thus, while rational argumentation of this form is generally seen to be philosophical in nature, it is in fact closely related to other analytic approaches, including the scientific method. Further information about ethical reasoning is provided in Chapter 3.

Empirical methods, on the other hand, are used primarily to describe how value conflicts arise within healthcare practice. Empirical methods can also be used to contribute to ethical argumentation by specifying evidence that can give substance to the reasons in favour, or against, a particular claim. If we think, for example, that a particular course of action is justified only if it would be widely accepted by the public, we need evidence that shows us whether the public would indeed accept that course of action. Finally, medical ethicists might draw on empirical methods to evaluate the impact of an ethical claim. If, for example, a research ethics committee is introduced in a healthcare setting to ensure that patients’ well-being is safeguarded when these patients are recruited to a clinical trial, we need to be able to show that the intervention does indeed safeguard well-being. If not, there is no ethical justification for introducing the committee on the basis of this argument.

The scope of medical ethics

As well as being an academic pursuit, medical ethics is also practised ‘on the ground’ in healthcare settings. Ethicists provide ethical guidance by the bedside, in the hospital boardroom, or as part of committees working in health settings. These ethics support functions are described in Chapter 7. In addition to recommending a specific course of practice, arguments within medical ethics might also focus on the regulations or laws that govern healthcare practice.

Similarly, the boundaries of what counts as a medical ethics issue is also open to dispute. Medical ethics might be differentiated from healthcare ethics, where the former is more narrowly focused on the moral duties of doctors, while the latter broadens its analytic lens to other professionals and to non-medical settings such as social and community-based care services. Equally, the boundaries between medical ethics and bioethics are difficult to ascertain, with the latter orientated more towards biotechnological issues than the professional world of healthcare. In common parlance, these different terms are used interchangeably, and little hangs on where the boundaries are drawn.

2Ethical theories and principles

Introduction

Consider the relatively common scenario in a district general hospital late one evening: an elderly patient who collapsed at home with a large intra-cerebral bleed is now intubated and ventilated in the emergency department. Prior to intubation the patient is deeply unconscious, with a Glasgow Coma Score of three. His case has already been discussed with the neurosurgeons who feel that the transfer to the regional neurosurgical centre for further management is not appropriate because the predicted outcome are universally poor (Figure 2.1).

What is the next course of action? He could be admitted to the intensive care unit (ICU) for further assessment and review the following morning on withholding of sedation. Or should you consider a planned withdrawal of treatment that evening with his extubation and subsequent transfer to a medical ward for palliation? Does the knowledge that he is on the organ donation register make a difference? Will the situation change if this is the last empty bed in the ICU? Now consider your responses when it transpires that the patient is 96, not 69 as first thought. Are the wishes of the patient known to the clinical team? The family have been called and will not arrive this evening. How important is their input into the decisions that are required during the evening?

Ethical reasoning is critical to resolve ethical issues such as this one. However, if such reasoning is going to be able to guide clinicians’ actions in ways that are justifiable, ethical theories and principles must be incorporated into this process. This chapter will provide the background to the main ethical theories, the ethical principles that are derived from those theories and that are relevant to contemporary medical ethics.

Three different ethical theories dominate the landscape of medical ethics. These function to determine how particular decisions or actions can be judged to be right or wrong in ethical terms. It is from these three theories that four ethical principles have been derived. The principles are well established in modern medicine. The method behind their application is intended to be simple and easy to apply across many clinical situations. These four principles are also described below.

Consequentialism

Consequentialist ethical theories claim that the rightness or wrongness of an action is judged solely by reference to the outcome of that action. For a consequentialist, the only morally relevant features of any action are its consequences.

Consequentialism is not a single ethical theory, rather it defines a category of theories. Utilitarianism is the most well-known consequentialist approach and the consequentialist theory that is most commonly applied and defended within healthcare. Utilitarianism gets its name from ‘utility’ – the value that ought to be maximised in determining the moral course of action. Utility is often interpreted in terms of ‘welfare’ or ‘well-being’. There are at least three alternative forms of utilitarianism that can be differentiated by the way that welfare is accounted for:

Part of the strength of utilitarian theories is that they are simple to comprehend and appeal to common sense. They also chime closely with the central activity of providing optimal outcomes for patients and endorse ‘well-being’ as their central value – a concept that is well recognised and understood within medical practice. However the theory faces a number of practical problems when applied to healthcare decision making. There can be difficulties in predicting and in evaluating the consequences of any particular action. For example, several consequences can arise from one act and it can be difficult to predict the probability of certain consequences following an act. The question is whether there is one consequence that will outweigh all others. Furthermore, problems can be encountered when the act under consideration will benefit one person or group but may be to the detriment of others.

Duty-based ethics

Duty-based approaches define another category of ethical theories. These theories focus on the quality of the action itself rather than the consequences of that action. This ethical approach is also called ‘deontology’ from the Greek for ‘duty’, deon. So duty-based ethics are concerned with what people are duty-bound to do, or how they are obliged to act. While such duties might extend to maximising the consequences of any action, it is not the maximisation of consequences per se that would make this action right, but that a relevant duty had been fulfilled. In other cases some actions will be wrong irrespective of the consequences. If one is duty-bound not to lie, for example, no reference to the benefits that might accrue from lying can provide an ethical justification for not telling the truth.

Much of the thinking behind duty-based ethics has arisen from the work of the eighteenth-century German philosopher Immanuel Kant, and Kantian deontology is the most common duty-based ethical theory. The basic premise of Kant’s theory is that rational human beings have the capacity to make reasonable decisions and choose the right course of action. Kant formulated his theory and account of moral duties in a number of formulations of what he called the ‘categorical imperative’, a rule that is true for all people in all circumstances. The right action must i) be one that is universal, ii) involve treating human beings as ends in themselves rather than merely as means to ends, iii) be autonomously willed by rational agents, and iv) establish the principles for a system of common laws.

More contemporary theorists have drawn upon and revised Kant’s work on the morality of actions and rationality to reconfigure how moral duties apply and can be identified. Thomas M. Scanlon offers a different duty-based theory of ethics. He proposes that the judgement as to whether an action is right or wrong depends upon individuals identifying principles that can be mutually recognised and justified by reference to the value of ways of living with others that it would not be reasonable to reject. Scanlon offers a view into the complexities of determining universal duties, which he summarises as ‘what we owe to each other’ – a form of contractual moral agreement.

Virtue-based ethics

Arising from the ancient Greek philosophies of Plato and Aristotle, virtue ethics are based on an understanding that the rightness or wrongness of an action is based upon the character of the individual, rather than by reference to the action at all. In addition, virtue ethics provides guidance on the characteristics and behaviours a good person will demonstrate.

Virtue-based ethics focuses on the character of the person rather than their actions. The traditional virtues included prudence, justice, fortitude or bravery and finally, temperance. While one of the strengths of a virtue-based approach is that it centres on the person, the weakness is that it is unclear whether this theory can provide any guidance for action in the face of a moral dilemma.

Alasdair MacIntyre has been a key figure in contemporary virtue-based ethics. He has called the virtues or qualities of character ‘internal goods’. MacIntyre has been a proponent of how virtues change over time while at the same time emphasising the historical context of ethics. The combination of the qualities of character viewed within both the historical and social context gives an understanding of how ethical issues arise and how the good life can be cultivated.

The four principles

Principlism is a method for ethical decision making in medicine that promotes the application of four principles. These four principles are second-order principles that have been derived from the three main ethical theories to form a useful and universal approach to working through ethical decision making. The aim is to be simple, easy to apply and culturally neutral. Henceforth, when confronting a problem, it can be helpful to apply each principle to allow some clarity and transparency to the situation, taking each different ethical theoretical insight into account.

The first principle, respect for autonomy, is the obligation to allow patients to self-govern their own lives, and to make decisions about their medical care in line with their own conception of their life plans. Respecting patient autonomy is usually understood as allowing healthcare providers to discuss and, if necessary, educate the patient about the different options available, but it does not allow the healthcare provider to make the decision for the patient. Implicit within this is the premise that medical practitioners must respect and follow those wishes, even if they believe that the decision is bad or incorrect.

The principles of beneficence and non-maleficence are closely related. Beneficence is the obligation to do good for patients: balancing the objective benefits of treatment against the risks and costs involved to provide the best medical care. This principle centres on the idea that welfare of patients is the main concern. This is often understood to mean that we must act in the ‘best interests’ of patients, a principle that has been invoked in English law although with rather different requirements. Conflict can arise when respecting a patient’s autonomy means allowing the patient to make a decision that conflicts with what is thought to be in their best interests.

Non-maleficence is the obligation to avoid the causation of harm. As many treatments involve some degree of harm the principle of non-maleficence implies that the harm should not be out of proportion to the benefit of the treatment.

The final principle is justice. Justice requires medical practitioners to treat patients, and potentially the patients’ caregivers, in a fair or just manner. What justice requires in any given situation will depend on which theory of justice is invoked in order to account for fair or equitable treatment. On some accounts, fair treatment will require equal treatment, but on other accounts a patient could be treated unequally but fairly. Justice considerations most commonly taken priority in dilemmas about the allocation of limited health resources between patients.

Applying ethical theories and principles

When applying theories and principles to real-world decisions such as the one detailed above a range of different considerations will need to be taken into account. From a utilitarian perspective, it is worth considering admitting the patient to intensive care and undertaking a sedation hold in the morning. At that point, a withdrawal of active treatment decision could be made and the process of liaison with the organ transplant coordinator could begin. From a deontological perspective, this approach should perhaps be reconsidered given that this is the last ICU bed available and the doctor is under an obligation to benefit the patient. Adopting a virtue-based approach, it is likely that the appropriate decision will have been reached having taken the time to assess the clinical situation and then seek the views of both the patient and his family, and also taken the time to explain the decision reached to the entire clinical team.

Following discussion with the elderly patient’s family, it transpires that the patient would not have wanted admission to an ICU and would not have wanted to be resuscitated in the event of a cardiac arrest (Figure 2.2). Tissue donation is still a possibility and would have been in keeping with his wishes. The patient’s autonomy has been respected. In view of the likely clinical consequences, this is likely to be in his best interests and no harm has been done: so beneficence has been practised. Given that there is now still an ICU bed available, it would appear that justice has been done. The application of the four ethical principles allows satisfactory resolution of a potentially complex situation.

Different outcomes may have followed. There is no single approach that is right or wrong but an understanding of the ethical theories and principles allows a decision to be made. The application of an ethical framework allows greater transparency and accountability in justifying the decisions that are reached while at the same time allowing different aspects of the problem to be taken into consideration together.

Further reading

3Ethical reasoning

Introduction

Most of the time in clinical practice, the essence of knowing what to do (and what not to do) in a given situation is fairly clear, given good medical training, experience and sound management. Ethical reasoning, as such, is rarely called for. Indeed, it would be hard to practise medicine in any useful way if one had to stop every 5 minutes and think hard about what to do, whether it was morally justified and so on. What is called for quite routinely is good practical judgement, well-developed communication skills, and medical and surgical proficiency. Compare legal knowledge: most of the time most of us are able to go about our daily lives rather successfully without knowing more than a few things about the law, and without needing to worry too much about what is lawful. While medicine does require doctors to have a good basic legal knowledge of matters relating to medical practice, and a thorough grasp of the guidance and rules of the General Medical Council (GMC), only occasionally will doctors need to stop and ask ‘Is this lawful?’ or ‘What is my legal duty here?’

So much for preliminary reassurances: there are nevertheless occasions when ethical reasoning is necessary. One kind of occasion when it is important is when thinking reflectively about one’s practice. It is impossible to practise medicine well without spending at least some time thinking quietly about one’s work, one’s motivations, one’s hard cases, one’s challenging colleagues, and patients and family members. It is no accident that so many great doctors have turned to the arts as a medium for this sort of reflection, nor that the arts have turned so often to medicine for subject matter when they wish to reflect on the human condition. But even on a more everyday level, reflecting on the choices that one makes, the tensions and difficulties that one faces, the values one tries to realise and live up to are part and parcel of the necessary ‘backstage’ work for successful and humane medical practice. It is also useful practice for the second kind of situation where ethical reasoning is called for: the hard case. And indeed it helps in the third kind of situation where ethical reasoning is essential: the making of policy.

Policy making might seem a bit remote from the everyday concerns of medical practice, but in fact ‘policy’ doesn’t just mean law making in parliament or the development of guidance by regulatory bodies like the GMC or professional bodies such as the BMA and the Royal Colleges. Policy, as a consensual decision about how to handle a specific issue or situation, can be made at any level of the profession or within an organisation, even down to the individual general practice or hospital ward. However, the test of good policy is how it helps guide in particular cases, and for that reason this chapter concentrates on ethical reasoning in cases.

It is only a slight exaggeration to say that ethical reasoning begins from a feeling – often just a feeling of unease, sometimes a feeling of anger or sadness, or perhaps shame or embarrassment or guilt: ‘There is something wrong here’, ‘I am not sure what to do here’, How do we get out of this one? The feeling gives us a clue to a mismatch or tension of some kind: between theory and practice, principle and willpower, conscience and orders, competing demands of different interested parties. So the critical first point in any process of ethical reasoning is tuning into that feeling, identifying what prompts it and trying to figure out what the question is. Once we’ve identified that question, we can start to refine it, probe more deeply, test whether we’ve really got down to the fundamental problem. The fundamental problem is not likely to be anything very metaphysical or profound – in most cases – but rather it will be something difficult, which will make a difference to what we should actually do.

For instance: a baby is born after 25 weeks’ gestation. It is in serious respiratory distress and has a low birth weight even for its gestational age. There is disagreement in the neonatal care team about what the best course of treatment for the baby should be – essentially, whether intensive efforts should be made to keep the baby alive, or not – and the baby’s parents are under great stress.

A couple of preliminary observations: first, in reality, no neonatal intensive care team would approach this case as a novel challenge, and there would be policies and protocols in place. Second, in reality, decision making would focus on the fine clinical details of how to give the best medical support to this specific baby (and our case example is far too coarsely described to allow for us to follow that reasoning in detail here). Nonetheless, what the case does illustrate is a type of scenario that does challenge and concern paediatricians and intensivists and nurses, and which also makes a fairly common appearance in public debates (not only about caring for sick babies, but also about abortion and end of life decision making). From this case, or more precisely, from a much more richly detailed clinical situation, we start to think. We think: What sort of case is this? Have we seen one like it before? How did we decide then? Were we happy with the decision we reached? Did it work out as we expected? Is there a principle we can identify in that previous decision that explains it and justifies it? Does this principle apply to the current case?

This kind of approach is known as casuistry. It can be developed with great subtlety and sophistication, but at its simplest it requires only three things: a sensitivity to and awareness of the ethical features of situations; an attention to consistency in argument; and an extensive range of settled cases for use in testing and comparing claims about the present situation. In this respect it is very like legal argumentation. Critics of casuistry claim that it falls into the trap of ‘mere’ pragmatism (doing what seems least likely to cause trouble or will be most popular without proper attention to principle) or even relativism (since it finds its principles in the habits and values of a particular community and doesn’t appear to rely on these being in any way objective or true). Many defenders of the use of principles in medical ethics make just these criticisms. But in practice, arguing from principles is never as deductive as it first appears, and the test of a principled argument is often how well it coheres with past experience, ‘common sense’, conscience and consensus among interested parties. Philosophers often call this process of testing one’s conclusions against empirical facts ‘well-understood comparison cases’, and the consensus in a group of well-informed people ‘reflective equilibrium’.