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“ETHICAL DILEMMAS IN THE PRACTICE
OF MEDICINE”
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Committee on Medical Ethics and Human Values
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SYLLABUS FOR 1978-1979 NOONTIME SEMINAR SERIES
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PREPARED BY
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RICHARD T. HULL, Ph.D.
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UNDER THE DIRECTION OF THE
COMMITTEE FOR HUMAN VALUES AND MEDICAL ETHICS
SUNY at Buffalo School of Medicine
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Robert Dickman, M.D. and Norman Solkoff, Ph,D,, Chairmen
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NOONTIME SEMINAR SERIES
Sponsored by The
Human Values and Medical Ethics Education Committee,
SUNY at Buffalo
School of Medicine
The 1978-1979 Noontime Seminar Series will be organized
as follows. In the fall term there will be five seminars
organized about the general theme of utilitarian versus
deontological ethics in medicine. In the Spring term there
will be five seminars devoted to the general theme of Hippocratic
ethics versus social responsibility. Each seminar will be
advertised with a case study and associated readings provided
in advance. The seminars will be conducted by 3-4 panelists
and a moderator, will run 11/2 hours in length, and will allow
for a 10 minute presentation by each panelist, a 15 minute intra
panel discussion, and a 40 minute period for audience questions
and participation followed by a brief distribution and completion
of questionnaires. The moderator will begin each session with a
brief introductory statement, relating the specific seminar topic
and case to the theme of the series and identifying some of the
chief issues to be discussed.
The panelists are to be selected and instructed to enhance
the bi-polar character of each seminar topic; they will be pro
vided the reading materials well in advance, and a preliminary
meeting of the panelists with the moderator to plan their
remarks will be held three weeks in advance of the seminar.
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1978-1979 Noontime Seminar Series
Sponsored by
Committee on Human Values and Medical Ethics
School of Medicine
State University of New York at Buffalo
All seminars will be held at 144 Farber Hall, Main Street Campus
from 12:45 - 2:15 p.m.
Fall Theme:
1.
Informed Consent and the Right to Withdraw Consent to Treatment
Monday, September 11, 1978
2.
The Right to Psychiatric Treatment
Monday, October 9, 1978
3.
Involuntary Sterilization of the Retarded
Monday, October 30, 1978
4.
Euthanasia and the Dying Patient
Monday, November 13,.. 1978
5.
Issues in Abortion
Monday, December 4, 1978
Spring Theme:
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Utilitarian and deontological patterns of decision
making in medicine
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Conflicts between the Hippocratic/free enterprise
and the civil service views of the profession
1.
Justice and Health Care Delivery
Monday, January 15, 1979
2.
Allocation of Scarce Medical Resources
Monday, February 5, 1979
3.
Confidentiality of Psychiatric Information
Monday, March 12, 1979
4.
Incompetent Practice
Monday, April 2, 1979
5.
Nontherapeutic Medical Experimentation
Monday, April 23, 1979
FALL SERIES:
Utilitarian and Deontological Reasoning in Medical Ethics
One who listens to a typical dispute over some ethical
issue - some question of what ought to be done in a particular
situation - is sometimes struck by the occurrence of two
patterns in the arguments. One pattern points to the probable
consequences for human happiness of this or that alternative, and
ends up by recommending that alternative that seems to have the
best prospects for making the most people involved happier, or
the least prospects for an increase in unhappiness for those
involved. The other pattern tends not to focus on consequences
but rather on the actions involved. Some actions will seem to
be obligatory and others to be prohibited, no matter what the
results. Let us call these patterns of reasoning and argument,
respectively, utilitarian and deontological.
It is not surprising that these same patterns may be observed
in the contexts of arguments and reasoning over ethical issues in
medicine. Indeed, these patterns often underlie positions that
receive names of their own: in the contexts of both abortion and
euthanasia, the quality-of-lifers square off against the sanctityof-life proponents, and many (although not all) of the arguments
the former carry the utilitarian pattern, with the latter being
decidedly deontological in character.
With the increase in the public character of decision-making
in medicine and the lack of a central, unitary religion and ethic
in our rather pluralistic society, has come an increased need for
health-care professionals to understand better their own ethical
commitments as well as those of their patient-clients. This series
seeks to illustrate these historically and contemporarily important
patterns of thought as they arise and occur in decision making in
the context of six important issues in biomedicine.
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INFORMED CONSENT AND THE RIGHT TO WITHDRAW
CONSENT TO TREATMENT
Should the physician be compelled to adhere to the requirements
of informed consent in providing therapy to the patient, and to
withhold or withdraw treatment that the patient refuses, even if
to do so is not, in the physician’s judgement, in the patient’s
best interests?
DATE, TIME, AND PLACE:
Sept. 11, 1978, 12:45-2:15 p.m., 14 4 Farber Hal1
Case Study: THE SIGNED FORM VERSUS THE PATIENT’S WISHES
(adapted from Howard Brody, Ethical Decisions
in Medicine, No. 14, p. 59 (Boston, Little,
Brown and Company, 19 76)).
Suppose that a 35 year old, attractive, popular, married
woman is referred to your surgical practice with a lump in her
right breast which, under both her physician’s manual examina
tion and yours, strongly suggests malignancy. You explain to
her that an accurate diagnosis will require doing a surgical
biopsy, and that if examination of the tissue is positive for
a malignancy, your opinion is that only a complete removal of
the breast and associated lymph nodes and muscle tissue will
offer hope of a cure. The woman tells you that she will
authorize the biopsy, but that she will consent only to having
the lump, not the entire breast, removed. She strikes you as
"another of those women who are so emotionally messed up about
their breasts that they would die of cancer rather than lose
one", and you privately decide to give the appearance of going
along with her whims for the present while reserving the option
to remove the entire breast in her long term interests once she
is under anesthesia.
As you are reviewing the records on the day of surgery,
you note that they contain a consent form, signed by the patient,
for "the operation of mastectomy". As you see her just before
she is taken up, she reiterates her desire that you remove only
the lump,but somewhat less forcefully (you suspect she may be
weakening in her resolve). Her husband, who is present now but
was not at the first consultation, appears distressed but says
nothing. Do you have consent to perform right mastectomy when
the biopsy comes back confirming the diagnosis of malignancy?
At that point, should you seek consent to the radical procedure
from her husband, on the grounds that it is unnecessarily risky
to put her through two surgical procedures and that he, both as
her husband and as one who is affected in important ways by the
decision, is an appropriate proxy (and is likely to give the
consent you want)?
It is tempting to fall back on the requirements of the
law, but that temptation should be resisted as providing the
final- answer, for three reasons. First, the law does not tell
you what you ought to do, morally speaking, in this or other
cases: it only tells you what the patient's legal rights are
and what may happen to you if you don't observe them. Second,
the law itself is not immutable and may change as the result
of various social and economic pressures. Third, there is no
guarantee that if you don't perform the radical procedure the
patient won't later change her mind and hold that you didn't
have her fully informed consent. You are probably better off
on firm ethical footing (particularly if you think the woman's
decision is not one she will stick with).
A utilitarian argument that might be constructed for
going ahead with the radical surgery would be partly statis
tical, partly psychological, The mastectomy offers, in the
case of most malignancies, a significantly greater likelihood
of survival than does the simple lumpectomyf Most women who
lose breasts to surgery adjust to that loss rather well,
particularly with the assistance of the various support groups
and prosthetic devices available, and most husbands come to
accept their wife's disfigurement without it affecting an
already stable marriage. You may judge that this woman will
not be ultimately happy with the conservative procedure, particu
larly since it is quite likely to cost ner her life; and you
may even judge that she has begun to waver as she has had time to
think about it. Thus, her happiness, her husband's happiness,
and certainly your own satisfaction with the outcome, are all
likely to be maximized by ignoring her dissent. At the same
time, there seems to be no point in trying to pressure her
into consenting prior to surgery, since that would only distress
her (and perhaps needlessly, if the biopsy is negative) and
since you can most likely get her husband's consent when the
need arises. Finally, delaying surgery while she comes (or is
brought) around to your viewpoint is medically inadvisable and
will upset the surgical schedule of the hospital.
It is interesting to note that opposing deontological
arguments can be constructed, depending on how the actions in
the situation are described. Consider, for example, the type
of argument given by Rabbi Moshe Tendler, who is also a prac
ticing M.D., at a Symposium on Ethical Issues in Human
Experimentation in 1972: "It is not necessary in a system of
ethics to where I adhere—a biblical system of ethics—to have
informed consent if you know for sure, with the best of your
scientific and ethical ability to evaluate, that the action is
for the benefit of the patient. Just as a man cannot commit
suicide under our ethical system, he cannot refrain from
benefiting from medical advances and by doing so forfeit his
life passively. If indeed a procedure is looked upon as a
proper medical procedure, it will be proper to institute it
even without informed consent." (quoted by Brody, ibid.,p.66)
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On this reasoning, then, to withhold surgical procedure which
has the best likelihood for preserving life because the patient
doesn't want it, is viewed as tantamount to assisting a suicide,
which is prohibited. Thus, the physician on this view would be
obligated either to leave the case entirely or to go ahead with
the surgical procedure which, in his judgement, is grH ng to be
most beneficial to the patient.
(And if the surgeon were the
only one effectively available to the patient, perhaps the only
moral alternative would be to operate without consent.)
On the other hand, a deontological argument which turns
on a different description of the surgery, emerges from con
sidering the Kantian grounds for the requirement of informed
consent. Kant held that the supreme moral principle was that
we should always treat each moral agent "never as a means, but
always also as an end as well." The informed consent require
ment, an absolute limitation on the physician's powers, is
viewed as an expression of this moral law. For the physician
treats the patient as a means to his own ends--the preservation
of the patient's life--when he does not respect that patient's
right to refuse treatment. In this situation, to proceed with
the surgical procedure against the patient's informed and
expressed wishes is to fail to respect that person as a moral
agent, charged with a responsibility for self which the rest
of us are not empowered to assume.
Review of Background Readings:
While I did say that falling back on the requirements
of the law was questionable as a tactic of ethical decision—
making, it is not without its merits. The articles by Robert
M. Byrn ("Compulsory Lifesaving Treatment for the Incompetent
Adult", Fordham Law Review 44 (1) : 1-36 (October, 1975) ;
reprinted in Thomas L. Beauchamp and LeRoy Walters, eds. ,
Contemporary Issues in Bioethics, Encino: Dickenson Publishing
Co., Inc., 1978 (pp. 150-161) and Kenny F. Hegland ("Unauthorized
Rendition of Lifesaving Medical Treatment", California Law Review,
53 (3) :860-877 (August, 1965); reprinted in Beauchamp and Walters',
Eds., op.cit.(pp.162-168) present pro and con articles from the
perspectives of the law (but with a lot of implicit moral rea
soning as well) over the question of whether it is permissible
to provide compulsory (i.e., un-consented-to) lifesaving treat
ment for a competent adult. Both seem to be chiefly deontological
in their reasoning; with Byrn more a Kantian and Hegland more in
agreement with Tendler.
Byrn’s article examines five cases in which "courts,
deferring to rights implicit in the American concept of personal
liberty, have given priority to patient choice"-, and five cases
in which "various governmental and private interests have been
found sufficiently compelling to over-balance patient choice."
The relevant fundamental patient rights that are exhibited
as concomitants of the concept of personal liberty are "(1)
the right to determine what shall be done with one’s body...,
and its corollary, the right to acquiesce in imminent and
inevitable death..., and (2) the right of free exercise of
religion..." There are few compelling state interests which
have been held to overrule patient choice in such matters;
and Byrn finds "only the state’s interests in the welfare of
the minor child and the protection of the public from communi
cable disease" to be proper bases for limiting the competent
adult's freedom to reject life-saving medical treatment.
Specifically, he rejects the view that the state's interest
in preventing suicide, or a paternalistic exercise of the
police power, justify such limitation.
Hegland argues, on the other hand, that the "rendition
of emergency lifesaving medical treatment on the person of
the objecting adult patient is proper"; and that "the law’s
traditional view of the sanctity of human life and the impor
tance of the individual’s life to the welfare of society, deny
the individual a right to, in effect, consent to his own death".
He argues that "the physician should be allowed to save the
patient’s life without" a court order, at least in the case of
the hospitalized patient.
If you have time, read through the articles (including
the two above) on reserve in the Learning Center (42a Farber);
but at any rate, think about the case study, issues and argu
ments , and come to the seminar prepared to hear and participate
in further discussion of them.
THE RIGHT TO PSYCHIATRIC TREATMENT
In involuntarily committing a psychiatric patient on the grounds
that he constitutes a danger to himself or to others, is there
an absolute obligation to provide psychiatric treatment?
DATE,
TIME,
Case Study:
AND PLACE:
Oct. 9 , 1978, 12:45-2:15 p.m., 144 Farber Hall
THE INVOLUNTARILY COMMITTED PATIENT'S RIGHT TO
PSYCHIATRIC TREATMENT (adapted from Wyatt v.
Stickney (344 F. Supp. 373 (1972)) and Wyatt v.
Aderholt (503 F.2d 1305 (1974)))
This was a class action, originally filed in behalf of patients
involuntarily confined at Bryce Hospital, Tuscaloosa, Alabama.
"The
case began...when a cut in the Alabama cigarette, tax forced the state
to fire 99 professional, subprofessional, and intern employees, at
the Bryce Hospital.... The complaint alleged that the defendants
had effected the staff reductions purely for budgetary reasons;...
and that as a result of the discharges the patients at Bryce would
not receive adequate treatment." The complaint was later amended
to question the "overall adequacy of the treatment afforded at the
Alabama state mental hospitals." The plaintiffs requested that the
Court affirm that "patients confined to a state mental health
facility are entitled to 'adequate, competent treatment'."
The defendants alleged that there was no constitutionally
guaranteed right to treatment and that the U.S. District Court
therefore lacked jurisdiction in the case. But the Court struck
down this argument and affirmed that a right to treatment for
mental illness is found to be within the purview of the 14th
Amendment. Specifically, the Court held that "patients 'involun
tarily committed through noncriminal procedures and without the
constitutional protections that are afforded defendants in criminal
proceedings1 are 1 committed for treatment purposes1 and so 'unques
tionably have a constitutional right to receive such individual
treatment as will give each of them a realistic opportunity to be
cured or to improve his or her mental condition'." (Wyatt v.
Stickney , 374 et passim) The Court also held that the patients
in Alabama mental hospitals were being denied their right to treat
ment, and it laid down detailed and complex standards for adequate
care and treatment, ordering the state to provide (i) a humane
physical and psychological environment; (ii) qualified staff in
numbers sufficient to administer adequate treatment, and (iii) indi
vidualized treatment plans.
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On appeal. Governor George Wallace argued that "the principal
justification for commitment lies in the inability of the mentally
ill and mentally retarded to care for themselves. The essence of
this argument is that the primary function of civil commitment is
to relieve the burden imposed upon the families and friends of the
mentally disabled", and inferred from this that the need for care,
together with the burden that such placed upon families and friends,
justified involuntary commitment for the purpose of custodial care.
"The families and friends of the disabled are the 'true clients' of
the institutionalization system."
The U.S. Court of Appeals for the Fifth Circuit decided this
appeal in Wyatt v. Aderholt. The argument was, in essence that
(1) even in those cases where custodial care was all that could
be effectively provided for the patient, due to the hopelessness
of that patient's condition, certain standards of custodial care
had to be adhered to: minimally adequate habilitation and care
must be "beyond the subsistence level custodial care that would
be provided in a penitentiary".
(2) Governor Wallace's argument
was rejected:
"...we find it impossible to accept the Governor’s underlying
premise that the "need to care" for the mentally ill —
and to relieve their families, friends, or guardians of
the burdens of doing so—can supply a constitutional
justification for civil commitment. At stake in the civil
commitment context... are "massive curtailments" of indi
vidual liberty. Against the sweeping personal interests
involved, Governor Wallace would have us weigh the state's
interest, and the interests of the friends and families
of the mentally handicapped in having private parties
relieved of the "burden" of caring for the mentally ill.
The state interest thus asserted may be, strictly speak
ing, a "rational" state interest. But we find it so
trivial beside the major personal interests against which
it is to be weighed that we cannot possibly accept it as
a justification for the deprivations of liberty involved....
It is the essence of our holding... that the provision of
treatment to those the state has involuntarily confined
in mental hospitals is necessary to make the state's
actions in confining and continuing to confine those
individuals constitutional. That being the case, the state
may not fail to provide treatment for budgetary reasons
alone."
Review of Background Readings:
In writing about this case, Robert Veatch says: "The first
question raised by this case is whether it poses an ethical
problem at all." He then goes on to identify as the real problem,
"(W)hat the mental health commissioner and the judges ought to do
when they realize more funds are needed to provide constitutionally
required medical care, but the funds cannot be obtained from the
state. The one legal remedy seems to be to release the patients. II
(Robert Veatch, Case Studies in Medical Ethics, Cambridge:
Harvard U. Press, 1977, p. 103). Morton Birnbaum, an M.D. and
lawyer, recognized that "To release a mentally ill person who
requires further institutionalization, solely because he is not
being given proper care and treatment, may endanger the health
and welfare of many members of the community as well as the health
and welfare of the sick person; however, it should always be
remembered that the entire danger to, and from, the mentally ill
that may occur by releasing them while they still require further
institutionalization can be removed simply by our society treating
these sick people properly.... For if repeated court decisions
constantly remind the public that medical care in public mental
institutions is inadequate, not only will the mentally ill be
released from their mental prisons but, it is believed that public
opinion will react to force the legislature to increase appro
priations sufficiently to make it possible to provide adequate
care and treatment so that the mentally ill will be treated in
(Morton Birnbaum,
mental hospitals (rather than mental prisons)."
"The Right to Treatment", Am. Bar. Assn. Journal, 46:499-505
(May, 1960), p. 503)
It seems clear that Veatch, and to a lesser
extent Birnbaum, see the chief problem in this case to be a
political, strategic one.
By contrast, Thomas Szasz ("Involuntary Mental Hospitalization:
a Crime Against Humanity", in James M. Humber and Robert F. Almeder,
Biomedical Ethics and the Law, New York: Plenum Press, 1976, the
original version appeared as"Science and Public Policy: The Crime
of Involuntary Mental Hospitalization" in Medical Opinion and
Review, 4:24-35 (May, 1968)) argues that involuntary commitment is
always a form of imprisonment even when done protectively and with
the availability of treatment aimed at restoring the patient to
functional freedom. His reasons are: (1) that 'mental illness1
is a metaphor, since it is a diagnosis predicated upon no findings
of a "disorder of the physiochemical machinery of the human body";
it is thus "impossible to 'treat' them for any sickness". (2) "The
claim that commitment of the "mentally ill" is necessary for the
protection of the "mentally healthy" is more difficult to refute,
not because it is valid, but because the danger that "mental patients"
supposedly pose is of such an extremely vague nature.... (I)f "mental
illness" is not a disease, there is no medical justification for pro
tection from disease. Hence, the analogy between mental illness and
contagious disease falls to the ground: The justification for iso
lating or otherwise constraining patients with tuberculosis or
typhoid fever cannot be extended to patients with "mental illness."
...,If an individual threatens others by virtue of his beliefs or
actions, he could be dealt with by methods other than "medical": if
his conduct is ethically offensive, moral sanctions against him
might be appropriate; if forbidden by law, legal sanctions might be
appropriate." Szasz concludes that the "mental disease" of (an
involuntarily hospitalized mental patient)...—unless the use of
this term is restricted to demonstrable lesions or malfunctions of
the brain—is always the product of interaction between psychiatrist
and patient.... A psychiatrist who accepts as his "patient" a person
who does not wish to be his patient, defines him as a "mentally
ill" person, then incarcerates him in an institution, bars his
the ----institution and from the role of mental patient,
escape from -and proceeds to "treat " him against his will—such a psychiatrist,
I maintain, creates " mental illness" and "mental patients." He
does so in exactly the same way as the white man who’sailed for
Africa, captured the Negro, brought him to America in shackles,
and then sold him as if he were an animal, created slave and
slaves."
Finally, even when the term "mental illness" is restricted
to organic dysfunctions of the brain, Szasz still holds that
"when patients with demonstrable diseases of the brain are
involuntarily hospitalized, the primary purpose is to exercise
control over their behavior; treatment of the disease is, at
best, a secondary consideration. Frequently, therapy is non
existent, and custodial care is dubbed "treatment.""
Fundamentally, then, Szasz sees the ethical question to lie
not with the question of whether the involuntarily committed have
a right to treatment, but with whether involuntary commitment
apart from criminal proceedings is morally just. He holds that
it only has the appearance of being just through the verbal trick
of the metaphor of "mental illness" and the covert appeal thereby
to the public right of quarantine. Although he does not explicitly
address the case of Wyatt v. Stickney, it seems clear that he would
reject both Governor Wallace's line of reasoning and that of the
Court — the former because it is an instance of the utilitarian's
willingness to sacrifice the rights of the individual in the pursuit
of the common good, and the latter because it is predicated upon
what Szasz regards as an unjust imposition of the medical model
on one who does not want to be fitted into that model.
We are thus left with two tiers of questions for discussion.
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(1). Is the classification of a patient as "mentally
and "dangerous
dangerous to self or others" a legitimate grounds for his
(2)
or her involuntary commitment?
(2).
In presuming to involuntarily
commit one who has not committed a crime (or who has been found
inculpable for a crime committed by reason of insanity), is the
utilitarian justification for placing such individuals in simple
custodial care as a way of serving both the interests of the state
and of families and frinds (a matter of shifting the burden of care
efficiently to the state) sound, or should the sorts of deontological considerations involved in the quid pro quo requirement that
deprivation of freedom must be offset by the positive opportunity
to regain freedom through therapy, limit what can be done to
individuals in the name of public interest? Or, is such depriva
tion of freedom, deontologically viewed, always so great an
injustice as never to be justified?
A set of readings for this case and issue (including those
abstracted above) is available in the Learning Resources Center
(42A Farber); if you have the chance, drop by there and read through
some of them. But in any case, be sure to come to the panel dis
cussion to listen and participate.
INVOLUNTARY STERILIZATION
Should nontherapeutic, involuntary sterilization be provided
for retarded individuals either on the grounds of controlling
the spread of their genetic disorders, or on the grounds that
they are not suited for parenthood, or on the grounds of the
need to control the effects of sexual behavior of institution
alized individuals?
DATE, TIME, AND PLACE:
Case Study:
■Oct. 30/ 1978, 12:45-2:15 p.m., 144 Farber Hall
STERILIZING THE RETARDED CHILD
(adapted from "Case Studies in Bioethics - Case
No. 538", in Hastings Center Report 8(2):13
(April, 1978))
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D", a retarded eleven-year-old girl from Sheffield, England,
suffering from Sotos Syndrome (cerebral giganticism: characterized
by large hands, feet and skull; poor coordination; epilepsy; vari
ous endocrine problems; and intelligence ranging from normal to
severe retardation with most mildly retarded; inheritability
uncertain), is being raised along with her two sisters by her
widowed mother in impoverished circumstances. She has been
attending a special education school with good success; she is
in the normal intelligence range and has a fair academic record
and the understanding of a nine-to-ten year old.
Her mother is fearful, now that her daughter has reached
puberty, that her daughter might be seduced and have an abnormal
baby for which she would then have to care. she thinks her daughter
will never improve enough to be a responsible parent. A consultant
pediatrician who had taken an interest in the family agrees with the
mother's view, and added his concern that the girl's epileptic
condition might cause her to harm any child. He has recommended
sterilization with parental consent; the mother has discussed the
operation with the daughter (who has yet to show any interest in
the opposite sex, and who has little opportunity for promiscuity).
However, an educational psychologist at the girl's school
strongly opposes the operation and had brought legal proceedings
aimed at blocking the surgery by having the girl made a ward of
the court. She has the support of the National Council for Civil
Liberties and a movement in the House of Commons.
This case involves a confrontation of utilitarian and deontological reasoning. On the utilitarian side is the argument which
holds that the chance of genetic abnormality in the offspring of
this girl, together with the problems that she may well have, due
both to her epilepsy and to the poor prospects of her achieving
an adult level of autonomy, in caring for such issue, combine to
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make the chances of increasing the general welfare by allowing
her full reproductive rights lower than by denying them. Even
if this girl later experiences distress at being unable to bear
children, her distress is more than offset by the peace of mind
that the surgery will bring to her mother and by the avoidance
of the social burden that public assistance to her ^r assisting
in the care of her offspring (whether deformed or not) would
constitute. In addition, the possibility of misery in any
abnormal children which she would otherwise bear would be avoided.
Such reasoning underlies the famous Supreme Court Decision of
1927 in Buck v. Bell, in which the court found that Carrie Buck,
mentally retarded and promiscuous, was "the probable potential
parent of socially inadequate offspring, likewise afflicted, that
she may be sexually sterilized without detriment to her general
health and that her welfare and that of society will be promoted
by her sterilization." (Buck v. Bell, 274 U.S. 200(1927))
A first-line deontological argument would hold that there
is a human right to reproduce which comes from the more general
right to control what is done in and to one’s own body; that an
11-year-old is incapable of giving informed consent to the
sterilization procedure; that the procedure is not medically
necessary; and that an injustice would thus be done to her were
she sterilized at this point, because such sterilization would
be involuntary and nontherapeutic.
Review of Background Readings:
This case was discussed in the same issue of the Hastings
Center Report by LeRoy Walters t Director of the Center for
Bioethics of the Kennedy Institute at Georgetown, and Willard
Gaylin, President of the Institute of Society, Ethics and the
Life Sciences. Neither opposes nontherapeutic, nonvoluntary
sterilization in principle; however, each recognizes certain
limitations or conditions to be placed on the procedure.
Walters argues for three formal requirements to be applied.
(1) There should be a just cause, or strong reason, for the
sterilization, since in the absence of a valid consent sterili
zation is a significant invasion of the body and intrusion into
"the sphere of reproductive privacy". (2) Sterilization should
be a last resort, since it is irreversible and since equally
effective, reversible techniques are available.
(3) Due process,
or an adequate procedure for representing the interests and rights
of concerned parties, must be observed.
Walters found that none of these criteria were met in "D"’s
case. First, the evidence concerning the probability of a handi
capped child, of "D"’s continued inability to make informed
decision concerning reproduction, and of her potential danger to
any child, is all inclusive. Further, the party to be benefited
by the procedure is not clearly specified, and such is essential
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to an assessment of benefits and rights. Second, the proposed
sterilization is not a last resort, since no evidence is pro
duced concerning the ineffectiveness or inappropriateness of
reversible techniques. Third, due process in such a case where
there is no medical indication and where there is likely conflict
of interest on the part of the mother, is not to be served by
leaving the decision in the hands of the parent and physician.
"In cases where the performance of an irreversible, nontherapeutic
procedure on a child is contemplated, due process seems to require
either the appointment of a guardian for the child or formal
approval by an independent review committee."
Gaylin probes into the wider range of issues involved in
such cases as these, issues such as the rights of the retarded
to have "affection, tenderness, and sexuality...be a fundamental
part of their lives...(as partial compensation) for their lack
of ordinary intellectual pleasures." He is disturbed by the
character of the decision and its reception by most parties as
a victory of "good over evil", and identifies a need in the
public discussion for some "understanding of the value of
sterilization in the mentally retarded." In any such case,
once it is established that the mental retardation "is of a
degree that precludes the role of parent", the procedure deprives
the individual "only of the ’privilege* of conception and, pre
sumably, abortion". It provides that individual new freedoms,
and it provides her parents peace of mind. He agrees with
Walters that in this case it is too early to determine whether
the incapacities to be a mother of this girl will continue; but
if they "are still evidenced when she is fifteen..., she, through
agents of her care, that is, her family, ought to have the right
to exercise the privilege of sterilization."
Thus, Gaylin takes a much more openly consequentialist, if
not utilitarian, stance in assessing this case, while Walters
views it as requiring a strong commitment to conservatism and
procedural safeguards that is typical of the deontologist
(although Walters’ deontologism doesn't dictate a simplistic
proscription against sterilization per se). Their commentaries
are brief, and you may have opportunity to look them over, and
perhaps some of the other associated readings, before coming to
this seminar and listening to and participating in the discussion.
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EUTHANASIA AND THE DYING PATIENT
Is there any morally relevant difference between deliberately
withholding treatment that would temporarily prolong the life
of a dying patient, easing that patient's suffering with
analgesics in dosages that are known to shorten life, and
deliberately ending a dying patient's life with the injection
of a toxic substance, bubble of air, or other means of killing?
DATE, TIME, AND PLACE: Nov. 13, 1978, 12:45-2:15 p.m.. 144 Farber Hall
Case Study:
TO END THE AGONY
(adapted from Robert M. Veatch, Case Studies in
Medical Ethics, No. 106, p. 328 [Cambridge:
Harvard University Press, 1977))
Matthew Donnelly, a physicist who had conducted research on
the use of X-rays for 30 years, lay dying of progressive skin
cancer which had persisted despite removal of part of his jaw,
his upper lip, his nose, his left hand, two fingers from his
right hand and portions of the skin of his right arm. He was
blind, in constant agony, with no further treatment possible
except further surgery and analgesia. His predicted life span
was about one year with continued surgery, less without.
Of his three younger brothers, he had always felt closest
to Harold, who was 36. His pleas for relief were dismissed by
the two other brothers, who said that the doctors were doing
all that could be done. But for two months he had made explicit
pleas to his youngest brother to help him die.
After drinking at several local bars one afternoon and
evening, Harold took his .30-caliber pistol to the hospital
during the evening visiting hours. While he was there his
brother died of a gunshot wound in the temple. At his trial,
Harold claimed that he could remember nothing else, including
how his brother was shot and killed. His brothers testified
against him in the trial.
One of the major areas of disagreement between utilitarians
and deontologists is in that of our dealing with dying patients.
Deontologists characteristically approach such cases as this by
giving an analysis of the various possible acts involved. The
most simple deontological analysis, however, applies a rule which
requires the physician to preserve life; hence, any action
followed by the death of the patient sooner than necessary. is
a violation of the physician's prime directive, whether it is
an action'of omission to treat or an act that is committed,
The more sophisticated deontological positions view the motive,
or intended result, of one's action as critical in the analysis
(There are other factors that enter into
of what one has done,
the analysis as well. For example, if you are my physician and
have agreed to provide me with medical care, and I need and want
a certain procedure done in order to prolong my life, and you
omit to do it, your omission may be negligent because, in
becoming my physician, you agreed to provide me with medically
necessary treatments to which I consented; you then undertook a
duty which you now have neglected to do — no matter what your
reason for the omission.)
If you give me analgesics in quantities
which (i) are necessary to relieve my suffering, but (ii) hasten
my pending death by depressing respiration, your intending conse
quence (i) only makes of your act one of simple relief of pain.
Had you intended consequence (ii) only, however, your act would
be viewed by the deontologist as a deliberate killing, murder in
(depending on whether it was premeditated, your state of mind at
the time, and so forth) the first or second degree. Of peculiar
interest to this position is the claim that there can be two
effects of my action, both known to me; but which effect becomes
part of my action's description depends on (a) which comes first,
and (b) which I intend. Thus, suppose I inject morphine intra
venously with the intent of relieving the suffering of Mr. Donnelly,
and it does relieve his suffering but hastens his death (shortly
thereafter); on this analysis I am not morally responsible (given
that this means was necessary to relieving his suffering, etc.) for
killing him. On the other hand, if I shoot him in the temple in
order to relieve his suffering (as his brother Harold may well have
done), and his death and the relief of his suffering may occur
simultaneously, I am morally responsible for killing him. With
the characteristic deontological rule against killing (innocent)
humans, I would properly be held culpable for his death in the
latter, but not the former, case (because in the latter case I
had intentionally killed him in order to end his suffering, whereas
in the former case I had acted to end his suffering with the other
foreseen but unintended effect being his death).
Utilitarians focus on the results of our actions in assessing
their moral characteristics. While not denying that intentions
and motives have moral importance (the utilitarian would not want
to condone the hypothetical killing of Mr. Donnelly by another
brother who stood to gain a substantial inheritance sooner by his
brother's early death), the utilitarian would see that the death
of the patient was inevitable (in the case of the dying patient)
and would thus tend to focus on the other considerations involved:
the amount of suffering involved for the patient and loved ones;
the cost of maintaining the patient; what the wishes of the patient
and family are; and so forth. A decision among the various alterna
tive courses of action would thus be dictated by the net effects of
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each on the balance of good over evil: that course of action which
served to maximize good (defined as happiness,, pleasure, or whatever, is taken to be the primary (set of) good(s)) would be obligatory. This might, in some cases, involve aggressive therapy, in
others keeping the patient comfortable and letting the patient die
of "natural causes", in still others heavily sedating the patient
and thereby hastening his or her death, and in some actually acting
so as to kill the patient quickly. It is this last alternative over
which deontologists and utilitarians most frequently part company.
The second issue over which deontologists and utilitarians often
differ is over the question of the voluntariness of euthanasia
(whether passive or active). Again, a variety of subtle distinctions
can be involved, but deontologists of the Kantian variety frequently
lay great stock in the satisfaction of the informed consent require
ment as a necessary condition for any significant change in the
physician's dealings with the patient. Thus, the deontologist views
as unethical even a well-intentioned withholding or withdrawal of
life-prolonging measures without the patient's knowledge or consent,
on the grounds that the necessary condition for such a departure
from the normal regimen of therapy lacks the necessary approval of
the patient. Hence, the deontologist finds himself morally most
comfortable with passive, voluntary euthanasia in the case of a
dying patient who chooses not to prolong the dying process; and the
deontologist becomes progressively more uncomfortable in moving into
involuntary and active euthanasia.
Utilitarians, on the other hand, generally don't value patient
autonomy and control as ends in themselves, but see them only as
sometimes a means to the end of human happiness. A utilitarian
would regard it as ridiculous to view onself as locked into a course
of action, no matter how much distress it may cause, because the
patient is unable to consent to a change. Had Mr. Donnelly been
unable to consent to his brother's shooting him, with the conditions
as they otherwise are the utilitarian would in all likelihood regard
the shooting as justified and a highly courageous, moral act.
Review of Background Readings:
Veatch presents this case in contrast with two others, involving
the death from leukemia of a young adult under intensive care and of
a Jehovah's Witness as the result of a refusal of transfusion. He
notes that the literature has involved at least five relevant distinc
tions: that between actions and omissions; that between prolonging
the living of a living patient and that between prolonging the dying
of a dying patient; that between voluntary and nonvoluntary decisions;
that between direct and indirect killing; and that between the
interests of some interested parties such as (independent) family
members and friends.
Veatch notes that there is difficulty in maintaining a
difference- between actions and omissions: in the case of actions
and omissions that produce deathz the result is the same (the
party dies); in both cases someone makes a decision that results
in an earlier death than would otherwise have occurred; and we
hold persons responsible for the resultant deaths in some instances
of both cases. Nonetheless, several reasons are traditionally
urged for retaining the difference in practice, however difficult
to define theoretically.
(1) Acting to hasten death is psychologically different for
most people from simply letting death occur. But this may be
merely a product of the view that action and omission differ morally.
(2) There is a professional obligation of physicians to preserve life.
This, however, does not preclude the moral permissibility of someone
else being designated the euthanizer. Moreover, it needs to be
argued independently that the physician should not be viewed as
rather obligated to serve his or her patient's health interests,
which might well include on occasion the ending of the patient's
life if the patient comes to have a greater interest in death
than in life.
(3) Legitimization of active killing of patients
who are dying in agony might serve as a wedge to legitimate other
killing (e.g., of the aged, the mentally ill, those judged
undesirable). While a very persuasive argument, one needs to be
clear whether the legitimization forseen is psychological or logical.
For if it is psychological, independent empirical evidence needs to
be provided that such would indeed by the result of the envisoned
liberalization: the experience of Nazi Germany may be historically
too small a sample, and confounded with too many other variables
(such as state control), to yield a reliable prediction.
If the
claim is that the legitimization is a logical one, it needs to be
shown that that is so, particularly if such safeguards are built
in as a requirement of voluntary assent to an act of active eutha
nasia, proceedural reviews, etc. (4) The cause of death is different
in the case of letting die from that of killing. This, of course,
does not suffice to exonerate any human of responsibility, as when
a parent lets a child die by not feeding it. Or to put the matter
differently, while there is no difference in the cause of death in
a case of passive euthanasia and in the case of a patient similarly
afflicted on whom aggressive therapy is being pursued at the time
of death, that does not seem to resolve the moral questions.
Veatch's discussion of these issues is an air-clearing one, but
reaches no final conclusion as to the ultimate permissibility of
any or all forms.
A pair of articles by Joseph Fletcher and Leonard J. Weber
("The Control of Death" and "Against the Control of Death",
Intellectual Digest, October, 1973, pp. 82-85) present opposing
views and arguments. Fletcher’s piece turns on the centrality
of the value of a life of an acceptable quality, while Weber's
makes major use of the notion of the sanctity of (human) life.
’?>•
Fletcher thus stands in tie utilitarian tradition, judging moral
matters in terms of the contribution of an act's outcome to human
happiness; while Weber*stands in the deontological tradition,
refusing to view morality as exhausted by considerations of the
resultant quantity of happiness, but holding to an absolute value
of (human) life itself with the attendant obligation to do nothing
that would deliberately cut it short.
Fletcher argues that, all else being equal, active and passive
euthanasia are morally indistinquishable; but that passive eutha
nasia ("letting the patient go") is usually an inferior alternative,
since it frequently involves greater suffering and dehumanization
than would "taking it into our own hands to hasten death for our
selves (suicide) or for others (mercy killing) out of reasons of
compassion." Since "the end, or purpose of both negative and
positive euthanasia is exactly the same: to bring about the patient's
death", "acts of deliberate omission are morally not different from
acts of commission". He argues that even the Hippocratic Oath's
injunction to "carry out regimens for the benefit of the sick" and
to "keep them from harm and wrong", depending on how we understand
wrong’/ may make refusing "to
'benefit of the sick' and 'harm' and 1'wrong',
welcome or even to introduce death" a violation of that code.
(Apparently Fletcher finds it convenient to overlook the trouble
some portion of the Oath which reads: "I will neither give a deadly
drug to anybody if asked for it, nor will I make a suggestion to
this effect.")
Fletcher discusses the way in which the distinction
between active and passive euthanasia, and between voluntary and
involuntary euthanasia, combine, and one should carefully note
the way some of them turn on regarding informed consent as less
than absolutely limiting what we may do to another in the name of
our conception of his or her benefit.
Weber jumps onto something like this point when he observes
that Fletcher's "quality-of-life ethics implies that only some
lives are valuable and that only some lives are worthy of this
respect that condemns physical violation.... It immediately denies
that the fact of human life is sufficient reason for inviolability;
it ends by saying that some lives can be taken." Weber holds that
actively putting an end to a life, "while done with the best of
intentions, is logically part of the view that human life itself is
not enough to warrant our respect". However, not fighting death
"is fully compatible with the humanistic nature of medicine itself."
Weber shows his deontologist's colors rather clearly in maintaining:
"There is more to morality than good intentions.... (A)cts have a
moral quality, regardless of intention or purpose. By their very
nature, actions produce consequences that often enhance or attack
the well-being of man. Killing, for example, is a direct attack
upon human well-being.... Killing in war, cold-blooded murder, and
mercy killing are all different, morally speaking, because the
circumstances are different. Yet, there always is evil in the act
of killing - the evil of rendering a previously alive person dead and this evil is the starting point for all considerations of the morality
of any kind of killing." Weber ends his argument with an interesting
analogy between the ecology movement's decentralization of humans
and their purpose in the scheme of nature, with its accompanying
ethic of less technological control; and the value of simply ceasing
to prolong life medically, as opposed both to prolonging life as long
as possible and bringing about death by mercy killing- tiowever,
given his previous elevation of human life to the position of highest
value, the analogy may strike some as imperfect.
These are profound issues facing the practicing physician, and
they deserve careful study and thought, You are invited to partake
of the sampling of articles on the subject on file in the Learning
Resources Center (42A Farber), and to come to the seminar to hear
and participate in a discussion of the issues.
ETHICAL ISSUES IN ABORTION
What, if any, compelling reasons can be given for the view
that it is morally wrong for a woman to obtain an abortion
of an unwanted pregnancy?
DATE, TIME, AND PLACE: Dec. 4, 1978, 12:45-2:15 p,m., 144 Farber Hall
Case Study:
ABORTION FOR THE PURPOSE OF SEX SELECTION
(adapted from a case reported by Theodore Schulman,M.D.,
at a seminar on abortion held in April, 1978, at
SUNY at Buffalo School of Medicine)
You are a specialist in gynecology and obstetrics, A
former (twice, for prenatal care) patient of yours, a woman
M.D. (pediatrics) in her 40's applies very early in her third
(planned) pregnancy for amniocentesis to check for chromosomal
aberrations (particularly for trisomy-21). You do the check
at the earliest possible date, run the examination of fetal
cells quickly, call her in and inform her that she is expecting
a perfectly healthy boy.
She then states that they already have two boys and want
their third (and last) child to be a girl, She asks for an
abortion.
You are about to refuse on the grounds that the reason is
trivial, but you hesitate, not wanting to insult a "fellow"
physician. She notes your hesitation and first says: "It's still
early; the fetus is not yet viable; it's my body and my right to
determine the purposes to which it is put." As if having to
counter those battle cries were not enough of a task, she goes
on to tell you the background for her decision.
She and her husband have already had two boys,
In this
conception they have employed what few measures exist to
influence the sex of the prospective baby (alteration of
vaginal Ph being the chief one, short of sperm selection, which
they regard as risky). Having a girl is particularly important
to them, for they are both researchers in child development and
have spent important parts of their careers devising methods
for spacing of children, prenatal development, and child rearing
that are designed to enhance and accelerate intellectual
development. Judging by the results of their two sons, their
methods have been highly effective. But they want to try them
on a daughter before publishing them or even moving to experiment
on a larger population. She insists that these grand designs are
the expression of their great love and devotion for their children
(and indeed all children), that it has been a lifelong dream of
theirs to show in genetically and environmentally controlled
f 1
experiments the enormous benefits of low sibling pressure,
early nutrition, and intensive development and education during
the early years. She ends her statement with a repetition of
the request for an abortion. so that they can try again for a
daughter without overcrowding their family and overtaxing their
careers and lives with a long delay in this next step in their
"family experiment."
Do you do the abortion? If so, for what reason
that she
has demanded one, that her reasons are good, in the name of
science?
This case embodies a number of issues centering on the
question of abortion.
(The adaptation beyond the second para
graph is almost wholly fanciful, although not entirely implausi
ble.) A useful set of questions in terms of which to come to
grips with some of these issues follows.
(1)
Is, and if so at what point is the fetus a person
with a serious right to life?
(2)
If, and at- those points after which, the fetus is
a person with a serious right to life, does the
right of the mother to control what is done in and
to her person ever take precedence over the fetus 1
right to life?
(3)
If not, or at those points when the fetus is not
a person with a serious right to life, should the
right of the mother to control what is done in and
to her person always be respected (is there ever
any rationale for restricting abortions when the
fetus is thought not to be a person)?
In answer to (1) there have been a host of positions
developed and articulated. For purposes of simplification, let
us assume that all parties to the dispute agree on the (partial)
definition of the concept of a person as "a being with a serious
right to life"; their disagreement is rather over the criteria
for application of the term so defined, and as a result over
the point in time at which the developing human organism is a
person (has a serious right to life). There follows a review
of the more influential representatives of these positions in
the philosophical literature.
Review of Background Readings:
(a)
The traditional Judeo-Christian (mostly Orthodox Jewish
and Catholic) position has it that the fetus is a person from the
point of conception.
(Paul Ramsey, a protestant theologian who
is mostly in agreement with the traditionalists, places the point
of personhood a week or so after impregnation, on the grounds that
F1
only then is one beyond the possibility of "twinning"; he
thinks it nonsense to speak of one person becoming two persons.)
On this view the criterion for being a person involves being an
individual human, in the biological sense of being a genetically
distinct, unique member of the species homo sapiens, where
membership in the species is understood as having the distinctive
number and type of human chromosomes (or "something close to it",
to handle embarrassing cases like that of the extra Y chromosome
male, etc.). This is the position defended by John T. Noonan
in his "How to Argue About Abortion" (in Tom L. Beauchamp and
LeRoy Walters, eds.. Contemporary Issues in Bioethics, Encino:
Dickenson Publishing Co., Inc., 1978 (pp. 210-217) and assumed
by Judith Jarvis Thomson in her "A Defense of Abortion" in
Philosophy and Public Affairs, 1(1): 47-66 (1971); reprinted
in Beauchamp and Walters, eds., op cit., pp. 199-209).
(b)
Baruch Brody ("On the Humanity of the Foetus,"
Foetus, in
Robert L. Perkins,
Perkins, ed., Abortion: Pro and Con, Cambridge, Mass.:
Schenkman Publishing Co., Inc., 1974: reprinted in Beauchamp
and Walters., eds., op cit., pp. 229-240) reviews a large number
of proposals for where to draw the line between morally relevant
personhood and its precursor stage. The thrust of his criticism
of the traditional position is that it mistakes the genetic
potential of the conceptus for developing distinctive human
features for those features themselves, and that the traditional
position makes an invalid reference to the presence of person
hood on the basis of the presence of that genetic potential.
After criticizing other positions, he settles on one of his
own.
"...(P)roponents of the claim that the foetus becomes a
living human being at about six weeks are primarily impressed
with the fact that it is about that time that electroencepha
lographic waves have been noted, and that, therefore, the foetal
brain must clearly be functioning after this date.
(One main
reason) for taking this development to be the one that marks
the (point of personhood is that)...it is just this indicator
which is used in determining the moment of death, the moment
at which the entity in question is no longer a living human
being. So, on grounds of symmetry, it would seem appropriate
to treat it as the moment at which the entity in question
becomes a living human being."
A utilitarian might well reject this criterion, not so
much on the grounds of some internal flaw, but on the grounds
of its disutility. For, a woman who is regular in her monthly
period might go several weeks before she had grounds to suspect
pregnancy. She would either be faced with the need to take
abortifacent measures — diethyl silbestrol or dialation and
curretage — or have her pregnancy confirmed or disconfirmed
by test (the rabbit test or an attempt at chemically inducing
menstruation). This would leave very little time to act before
the foetus became a person, even if the results of the test
were readily obtainable. The effective period for moral abortion
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would thus drop enormously, and since the utilitarian is
interested in a criterion which maximizes the happiness and
welfare of all parties involved, such an early criterion might
well seem not consistent with that aim.
(c)
The position developed by the U.S. Supreme Court in
Justice Blackmun's "Majority Opinion in Roe v. Wade" (410
United States Reports 113, Decided January 22, 1973; reprinted
in Beauchamp and Walters, eds., op cit., pp. 243-247) claims
not to involve an explicit criterion for personhood; instead
it supposes that the state has an interest in preserving life,
which it dates as beginning with viability. But in our limited
sense of 'person', to say that after the point of viability
there is human life which the state may protect with increasingly
strict limitations on abortion, is very close to asserting that
the viable fetus has a right to life, and is thus (in our sense,
although perhaps not that of the term in constitutional law) a
person. The rationale seems to be that viability is the critical
point since only after that can one begin to speak of the foetus
as independent of the mother, as worthy of separate (because
separable) consideration. A very important point about this
criterion is noted by Daniel Callahan in his "Abortion and
Medical Ethics" (Annals of the American Academy of Political
and Social Sciences, 437:116-127 (May, 1978)). In Danforth v.
Planned Parenthood of Missouri (1976), the Court held that, for
purposes of the constitutional law, ’viability' is to be defined
as "that stage of fetal development when the life of the unborn
child may be continued indefinitely outside of the womb by
natural or artificial life-support systems...." As Callahan
observes, "But the technological possibilities here are in
principle unlimited, subject only to our present lack of skill
and knowledge. It is thus not only conceivable, but also likely,
that it will soon be possible to keep babies alive outside the
womb down to 18 weeks, then 15, and so on. 'Viability' does not,
therefore, represent a fixed biological point, but is a function
of technical capacity."
In addition, it may be noted that if we seek some sort of
consistency between our criteria for personhood in a fetus and
our criteria for personhood in the dying patient, treating the
criterion of technological viability as sufficient for person
hood in the fetus would seem to require treating the same
criterion as sufficient for personhood in the individual with
a flat EEG who is on a respirator.
(d) Michael Tooley, in his paper "Abortion and Infanticide"
(in Philosophy and Public Affairs, 2(1):37-65 (1972); reprinted
in Samuel Gorovitz et al., -eds. Moral Problems in Medicine,
Englewood Cliffs: Prentice-Hall, Inc., 1976 (pp. 297-317),
argues that the capacity to desire one's continued existence
is necessary for the presence of the right to life and that
that capacity in turn requires a concept of one's self as the
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continuing subject of experiences, a concept of past and
future, and self-consciousness (or the capacity for it), He
thus places the point of personhood at somewhere around/ or
even beyond, the first year of life after birth.
Tooley's approach is an interesting one, for several
reasons. First, his approach comes out of a typical utilitarian
position that frustration of a desire is prima facie evil and
thus to be avoided. Second, he insists that connections be
made, rather than assumed, between the concepts "person" and
"human being". Third, he insists on reasons being formulated
for where one wants to "draw the line" which point to a
morally relevant difference in those things that fall on one
side of the line from those that fall on the other. Fourth,
he proposes that what makes for a morally relevant difference
in this issue is the possession of a right not to be killed,
with that right being grounded in the capacity to desire to
continue to exist and the moral principle that it is wrong to
frustrate such a desire. Since fetuses and newborns lack the
consciousness of themselves as continuing subjects of experiences,
and thus lack one necessary requisite of desiring that they con
tinue to exist as the continuing subjects of experiences (which
is the desire to live), they cannot be said to have the right
to life.
(Tooley goes through various contortions to avoid
problems with sleeping and unconscious patients.)
(e)
H. Tristam Engelhardt ("The Ontology of Abortion",
in Ethics, 84(3): 217-234 (April,1974); reprinted in Gorovitz
et al., eds., op cit., pp. 318-334) would seem to be committed
to a position as extreme as Tooley's, for he holds that "the
rights of the mother regarding abortion are paramount, After
all, she is actually the only person involved.... No one else's
personal rights are intimately involved: the fetus has no
personal rights." This is so, he argues (against the supposed
necessity for symmetry between the fetal personhood criterion
and the brain death criterion proposed by Brody), because though
the fetus has an operating brain (a necessary condition of
personhood) it lacks the embodiment of a mental personal life
which is present in the sleeping person.
In another article
("Viability, Abortion, and the Difference Between a Fetus and
an Infant", in American Journal of Obstetrics and Gynecology,
116:429 ff., 1973) Engelhardt offers an argument similar to
Tooley's but based on the notion that only rational, self aware
beings can be of value in themselves and thus have rights (a
Kantian position). As a commentator, Howard Brody notes,
"... While things other than end-in-themselves may not have
rights in that sense, they may still have very high value and
be worth protecting. Thus,- while infants are not 'persons'
in the strict sense of being rationally self-aware, good child
raising practices demand that we treat them as if they were
persons. While not persons in Engelhardt's strict sense, infants
occupy the social role of persons and as such have very high
social value. Thus, Engelhardt would allow abortion up to around
the point of viability, but would prohibit infanticide (and late
term abortions, except under extraordinary threat to the mother's
life)." (Brody, Ethical Decisions in Medicine, Boston: Little,
F 1
Brown and Co., 1976, p. 517) The argument seems to be a
slippery slope type; in order to protect all children who
are not persons from undue exploitation, as well as to raise
them to become persons, it is important to treat all of them
as though they were possessors of rights. For if we don't,
many won't develop into persons due to a failure in their
developmental dynamic, and that would be a loss of the potential
value inherent in beings that can become rational agents. Late
term abortions, as well as infanticides, ought to be treated as
violations of rights in most cases because it is generally
valuable to cast fetuses and infants in the social role of
person before the enter the developmental stage in which person
hood becomes actualized.
(f)
One of Engelhardt's former students, Larry McCullough,
a philosopher at the Texas A & M Branch at College Station,
argues for a graded conception rights coordinated with a graded
notion of the development of the person.
If we think of the
person in terms of a set of capacities and abilities, and if
we reflect on how the law recognizes specific incapacitations
and loss of specific rights and responsibilities in mental
patients and prisoners, we see how the right of the fetus to
life is an increasing matter as the fetus begins to increase
in its development of capacities for consciousness, independent
existence, suffering of pain, etc. Rather than speak of the
right to life as either present or absent, McCullough speaks
of it as present to a greater or lesser degree, as commanding
a greater or lesser consideration in our determination of the
relative weights to be assigned to the fetus' interest in
living and the mother's interest in an abortion.
(McCullough's
paper was presented this past spring before the American Society
of Value Inquiry in Cincinnati.)
To the second question raised earlier ("If, and at those
points after which, the fetus is a person with a serious right
to life, does the right of the mother to control what is done in
and to her person ever take precedence over the fetus' right
to life?"), Judith Jarvis Thomson answers with a "Yes, sometimes."
(See (a) above for her citation.) Thomson weaves a large number
of clever (but contrived) examples and arguments together to
establish the following conclusions:
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(1)
A woman may defend her life against the threat to
it posed by an unborn child, even if doing so
involves its death.
(2)
While no given third party must accede to a mother's
request that he perform an abortion to save her life,
he may.
(3)
Having a right to life does not guarantee either
the right to be given the use of, or a right to
be allowed continued use of, another person's
body, even if one needs it for life itself.
(4)
If the pregnancy results from a voluntary act,
undertaken in full knowledge of the chance a
pregnancy might result from it, with a voluntary
lack of use of contraceptives, an abortion would
be an unjust killing.
(5)
The right to an abortion is not a right that the
child be killed, if it is possible to detach the
child alive.
In sum, then, Thomson's position amounts to a rejection of
the view that saying that a fetus has a right to life entails
the moral impermissibility of abortion in all cases, or even
in all cases in which the life of the mother is not threatened
by the pregnancy. The situation that generates the conclusion
that abortion is here impermissible is complex and does not
consist solely in any one factor, including the fetus' right
to life.
Engelhardt's and McCullough's positions may serve as
negative responses to the third question raised ("If not, or
at those points when the fetus is not a person, should the
right of the mother to control what is done in and to her
person always be respected?")
The same may be true of the
Supreme Court's decision in Roe v. Wade, where the Court
held that the state could limit the right of the mother to
obtain an abortion during the second trimester on the grounds
that abortion is statistically riskier thain coming to term,
and that the state has an interest in protecting the health
of the mother that becomes compelling over her interest in
obtaining an abortion at the start of the second trimester.
Finally, there is an argument that the use of medical resources
for abortions on demand where there is not medical or psychiatric
reason present is a misuse of those resources, insofar as it
takes hospital or clinical facilities and even federal resources
away from those whose need for them is medically more justified,
it uses friviously the time of physicians and nurses, etc. (This
doesn't appear too persuasive unless its proponents are pre
pared to ban cosmetic surgery, nurses working at jewelry counters
piercing ears, etc.)
In your struggles with this issue, perhaps it is wise to
keep in mind two comments from individuals who have been
involved in various ways in shaping our present policies on
abortion. John Hart Ely ("The Wages of Crying Wolf: a Comment
on Roe v. Wade", The Yale Law Journal, 82:923-947 (April, 1973) ;
reprinted in Beauchamp & Walters., eds., op cit., pp. 247-251)
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suggests that there is an enduring discomfort in even the most
liberal position: "Some of us who fought for the right to
abortion did so with a divided spirit. We have always felt
that the decision to abort was a human tragedy to be accepted
only because an unwanted pregnancy was even more tragic. H
"Abortion is too much like infanticide on the one hand, and
too much like contraception on the other, to leave one
confortable with any answer; and the moral issue it poses is
as fiendish as any philosopher's hypothetical." Daniel
Callahan (pp cit.) replies: "Perhaps that is the way it should
always be--abortion is not the kind of moral issue that is
once and for all solved."
If indeed abortion is a moral issue to be struggled with,
you may want to look through the file of articles on it
(which includes the above) shelved in the Learning Center
(Farber 42A); come to the seminar to hear others who struggle
with the issue.
Discussion Notes
f 1
SPRING SERIES:
The Hippocratic Oath Vs. the Physician's Social Responsibility
I
"I will follow that system of regimen which according to my
ability and judgment, I consider for the benefit of my patients,
and abstain from whatever is deleterious and mischievous....
Whatever, in connection with my professional practice, or not in
connection with it, I see or hear, in the life of men, which
ought not to be spoken of abroad, I will not divulge, as reckoning
that all such should be kept secret." Oath of Hippocrates (Sth
Century B.C.)
Traditionally, physicians have taken an oath pledging their
skills to the service of the health of their patients. This oath
has been historically interpreted in the West to allow the
physician absolute freedom in choosing his patients, and access
to available resources for treating them, without the necessity
of recognizing any moral or professional obligations to distribute
either his services or other resources in consideration of the
needs of a wider class of humans than those he selects as patients.
With the enormous increase in public support of medical
research and education there has come an increased public expec
tation that physicians will, distribute themselves in such a
manner that equal access to minimally necessary health care will
be assured all citizens of the society, and that the physician
will make decisions in the distribution of his services in such
a fashion that the goal of general accessibility to health care
will be assured.
This series brings into focus the ethical conflicts arising
from the perpetuation of this ancient ethic (by both physicians
and patients) in a time of egalitarian demands for health care as
a general right.
JUSTICE AND HEALTH CARE DELIVERY
Should the physician be compelled to provide a period of service
to areas otherwise unable to obtain needed medical services?
DATE, TIME, AND PLACE: Jan-15 . 1979 f 12:45-2.:15- -p.m
Case Study:
144 Farber Hall
THE PHYSICIAN AND COMPULSORY PUBLIC SERVICE
(adapted from Robert M. Veatch, Case Studies
in Medical Ethics, No. 17, pp. 69-72 (Cambridge:
Harvard University Press, 1977))
Congressman Gerald Crawford has considered introducing a bill
with the following aim:
Every physician educated in a medical school that receives
federal funds shall, after his or her one year of internship but
before being licensed to practice medicine in any state, serve
for two years with a National Health Corps. Compensation will
be at the civil service rate for GS-8 ($11,029-14,341 per year).
This National Health Corps shall be a division of the U.S. Public
Health Service, and shall supply needed medical service to any
municipality, county, state, or federal health facility unable
to obtain needed medical services, or to any other segment of
the population unable to obtain adequate health services.
Congressman Crawford bases his arguments for this bill on
two claims: (1) the public subsidizes doctors by providing them
with state- and federally-funded education in almost all cases,
so that the doctor incurs a debt which should be paid off through
public service; (2) there is a right to health care that derives
from the right to life, liberty, and the pursuit of happiness.
Veatch observes that, given only the first point, ’’it is hard to
see why medical students should not be allowed to buy their way
out of the bargain, either by paying their full tuition or by
repaying the full loan at the going market interest rates...
(But on the second point,) (b)eing given the opportunity to gain
the lifesaving knowledge and being licensed by the state to use
that knowledge generates a public trust—an obligation to serve
the people who are the source of the special opportunity.
If
such is the basis of the National Health Corps, then it is no
more sensible to make public service optional in a time of health
crisis than it is to make military service a matter of choice in
a time of military crisis."
1
Review of Background Readings:
Robert M. Sade, M.D., ("Medical Care as a Right: a
Refutation," NEJM 285 (23) :1288-1292) attacks this second
point. Sade recognizes but one primary right: the right to
one's own life. This right, he asserts, involves three
corollary rights: the right to select the goals that one
judges to be necessary to self-preservation; the right to
choose courses of action to achieve those goals; and the
right to dispose of those achievements freely and without
the coercions of others. Sade holds that this entails a
right to private property, by which he means goods and
services which one produces by virtue of his individual
effort. The only proper function of government is the
exertion of retaliatory force to protect individuals from
physical harm, including the expropriation of one's property
by others against one's will.
On Saders view, medical care is a service provided by
doctors (and others) to those who wish to purchase it. To
speak of a patient as having a right to health care is to
speak of the patient as owning the services of some doctor
without having earned them or receiving them as a gift from
that doctor. And to speak of the state as enforcing the right
to health care is to speak of government violating its primary
function, which is to protect the doctor (and others) from the
deprivation of life and property. Sade takes the extreme
position that any governmental intervention in the practice of
medicine, whether being forced to join a hospital or group not
of his choosing, or being prevented from using a drug he thinks
is in the best interests of his patient, or being compelled to
make any decision he would not otherwise make, is immoral
(unless it is done in the face of a danger posed by that
physician’s practice to those who purchase it). He draws this
conclusion from the points made previously, together with the
observation that any outside regulation of his practice forces
the physician to violate his fundamental professional commit
ment of using his own best judgment for the greatest benefit
of his patient. He calls for a system that "proscribes the
imposition by force (legislation) of any one group's conception
of the best forms of medical care.” Sade explicitly criticizes
the Kennedy-Griffiths bill, the system of socialized medicine
in Sweden, and Bill 41 of the 1970 Quebec parliament, as all
instances of misdirected governmental control of physicians.
r
I
I
In an article partly devoted to a criticism of Sade's
position; Gene Outka ("Social Justice and Equal Access to
Health Care," J. Rel. Eth. 2(l):ll-32) returns to Congressman
Crawford’s first point: "...the amount of taxpayer support
for medical research and education is too enormous tu make
any such unqualified case for provider-autonomy plausible."
The point may be further extended by holding that the public,
by providing funds for the conduct of medical research and
the construction and operation of public medical schools, has
contracted implicitly with those doctors who choose to benefit
in their education and practice from such expenditures of
public funds to provide "comprehensive health services for
every person irrespective of income or geographic location".
Outka argues for a conception of basic needs that parallel’s
Sade's notion of natural rights, needs which are "assumed to
be given rather than...constituted by any action for which
the person is responsible by virtue of his or her distinctively
greater effort...So very often the advantages of health and the
burdens of illnessstrike one as arbitrary effects of the
(natural) lottery."
The underlying conception of justice with
which Outka works holds that goods that are earned by effort
are appropriately distributed unequally according to merit, but
that goods demanded by essential needs are properly distributed
unequally according to need. Outka discusses a number of pro
posals for such distribution of access to health care, as well
as several other conceptions of social justice.
3
Leon R. Kass (“The Pursuit of Health and the Right to
Health”, The Public Interest, No. 40, Summer, 1975) cautions
against viewing this notion of basic need too broadly: "I
would myself guess that well more than half the visits to
American doctors are occasioned by deviations from health for
which the patient, or his way of life, is in some important
way responsible." He cites as instances most cases of chronic
lung disease and cirrhosis of the liver, much cardiovascular
disease, many gastrointestinal disorders, many muscular and
skeletal complaints, venereal disease, nutrition-related
problems, various renal and skin problems, most physical traumas,
and possibly most cancer occurring in the population above the
level where its incidence is lowest. He observes that "All the
proposals for National Health Insurance embrace, without quali
fication, the no-fault principle. They, therefore choose to
ignore, or to treat as irrelevant, the importance of personal
i
responsibility for the state of one's health. As a result, they
pass up an opportunity to build both positive and negative induce
ments into the insurance payment plan, by measures such as refusing
or reducing benefits for chronic respiratory disease care to per
sons who continue to smoke." Thus, while the burdens of illness
may "strike one as arbitrary effects of the natural lottery",
Outka's impression would be a better basis for a social policy
based on basic needs if limited to disease that was not the effect
of one's own folly or ignorance.
We thus seem to be left with several related questions for
discussion at this seminar.
(1) Is the ethically proper view of
the current profession of medicine captured best under the notion
of private enterprise or of civil service? (2) Is there a right
to health care possessed by each citizen, and are there respon
sibilities which go along with that right? (3) Ought Congressman
Crawford's proposal,or something like it,be enacted?
If you have time, read over the file of articles (which includes
the above) on reserve in the Learning Center (42A Farber); but at
any rate, think about the above issues and arguments, and come to
the seminar to hear and participate in further discussion of them.
THE ALLOCATION OF SCARCE MEDICAL RESOURCES
Should a totally implantable artificial heart (TIAH) be developed?
If so, how should allocation of available units be made?
DATE, TIME, AND PLACE: February 5, 1979, 12:45-2:15 p.m., 144 Farber Hall
Case Study:
THE ARTIFICIAL HEART
(adapted from Robert M. Veatch, Case Studies in Medical
Ethics, No. 76, pp. 235-236 (Cambridge: Harvard
University Press, 1977))
You are a member of the National Institute of Health Artificial
Heart Assessment Panel, a group charged with determining the cost,
need, feasibility, and desirability of funding an all-out effort to
develop a totally implantable artificial heart (TIAH), and with
making recommendations of criteria for its allocation in individual
cases. You learn that research and development has been going on
since 1948, and that hundreds of units have been implanted in
animals (but with controls and energy sources external). While
development of TlAH’s has not progressed to the point that permits
testing in humans, perhaps by the early 19 80's it will be technically
feasible to enter such a testing period.
Development costs to date have been borne by the federal govern
ment, and one of the issues to be dealt with is whether to turn over
the present level of technology to private industry, or to maintain
federal control of the means of production, at least to the extent
of contracting out the final product. But even if the TIAH is per
fected, the individual unit and installation cost will be high.
"Cost estimates range from $15,000 to $25,000 and probably somewhat
more for a nuclear-powered heart. It is estimated that there are
between 17,000 and 50,000 candidates per year, producing a total cost,
conservatively estimated, at between $255,000,000 and $1,250,000,000
per year. This figure would have to be multiplied by the number of
hearts needed per person, for it is probable that there will be some
mechanical breakdowns. One estimate is that the life span of the
heart might be five to ten years." "This is a great deal of money.
The entire American national health budget is only approximately
$110 billion per year."
If these kinds of costs weren’t enough, it should be borne in
mind that the same sorts of calculations "should be made for other
potential recipients of the approximately twenty-five different
kinds of organs and tissues that have now been used in human trans
plantation, for hemophiliacs, for cancer patients needing chemotherapy,
and even for psychiatric patients. The total will certainly far
exceed the present national health budget even if it is limited to
American cases—a limitation hard to justify."
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Furthermore, it is difficult to see how these expenses would
be offset by savings elsewhere; in fact, the result may well be
an increase in other health problems that are not amenable to
present foreseeable technological solutions. For example, there
will generally be an increase in both cancer and stroke in that
population of individuals whose lives are substantially prolonged
with artificial hearts. Frequently, conditions that produce the
need for an artificial heart will also produce other health problems
which are not solved by the implantation of a substitute heart.
Since the majority of health expenses come in the later years,
increasing survival time of individuals will more or less auto
matically be followed by increased health costs per life.
Thus, even ir
if ir
it is -cecnnoiogicaiiy
technologically possible to meet a range
of health care needs, it may not be economically possible. The
demands for time, ability and attention of health care professionals,
added to these other costs, may well necessitate dealina with the
question of individual allocation. How do you as a member of this
Assessment Panel decide the macro-allocational question of whether
the TIAH should be developed, and what criteria should be recommended
for deciding the micro-allocational question of who should receive it?
Discussion and Review of Background Readings:
The Macro-Allocational Question
The traditional Hippocratic ethic has the physicians offering
the full scope of his/her skill, including its technological
extensions, in the service of the health of those individuals that
have been accepted as patients. Hence, on this ethic there would
seem to be an obligation to support any technological advance, and
any investment in equipment, that offers one’s patients a greater
chance of survival. On this traditional view, the physician does
not have a professional obligation to consider the impact on society
of preferring such technological advances. Since the selection of
those who are to be one’s patients is, under this ethic (and the
interpretations of it by the AMA), a morally neutral one that is not
constrained by that ethic, it is a matter of no ethical consequence
that preferring technological advances in defense of one’s patients
may result in health care services being increasingly limited to
only those segments of the population able to pay for them, or may
result in a decrease in other social benefits (like museums, orchestras,
libraries) in order to pay for them.
H. Tristam Engelhardt ("The Counsels of Finitude," The Hastings
Center Report) argues that the medical profession is irrationally
preoccupied with trying to fulfill the striving for immortality,
and should in stead recognize that its dedication to the welfare of
patients has definite limits. If one views the physician as a human
with the normal sorts of human obligations to the general welfare, one
sees that the pursuit of extension of the quantity of a patient’s
life is only one of many obligations that the physician must balance.
Implicit in this is a criticism of that imperative to save or prolong
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one's patients' lives at any cost. On the other hand, Rabbi Moshe
Tendler (as reported in Howard Brody, Ethical Decisions in Medicine,
Boston: Little, Brown & Co., 1976 , pp.
indirectly criticizes an
implicit assumption in Engelhardt's position, which is that some
lives are of less than infinite value. Tendler's ethics (which he
characterizes as a biblical one) seems closer to the traditional
Hippocratic attitude towards the patient than does Engelhardt's.
By contrast, the physician who sees his/her duty determined
under principles of general social service may well be faced with
a moral requirement to forego the development and implementation
of costly therapies, at least so long as a basic level of health
care has not been achieved for all humans. Applying this egalitarian
principle, there would be no question but that development of the
TIAH with public funds, and provision of it to only those who can
pay by physicians, would be immoral so long as there are substantial
segments of the population that lack adequate health care. Even if
such distribution were achieved in this country, there would be the
problem of the low standard of health care in so many other countries.
This line of reasoning has some similarities to one found in support
of a no-allocation policy for dealing with situations in which not
all who need and want scarce lifesaving medical resources can be
provided them.
(See the discussion of this view in the following
section.) The idea is that there is some sort of unjust elitism
involved in developing therapies which are not accessible to all
who need them, since to do so involves a commitment of resources
(skills and money) at the expense of some for the benefit of others.
The standard line of argument against this view (also see below)
turns on the view that some merit a greater portion of scarce
resources than do others, or on the view that some are sufficiently
important to the general welfare to justify allocation to them of
extraordinary quantities of resources.
The Micro-Allocational Question
There have been a number of schemes, or principles, adduced for
distributing scarce lifesaving medical resources (SLMR). For our
present purposes f they may be grouped according to whether they
assume a Hippocratic view of the profession of a social service view.
The Hippocratic alternatives: Allocation according to the
ability to pay; allocation according to the ability to benefit
medically; allocation according to order of application. The first
of these, which largely reflects the present system, depends upon
viewing entry into the system of health care as a privilege which
the patient buys, and is a manifestation of the combination of the
Hippocratic ethic with the free enterprise view of the medical
profession defended by Robert M. Sade ("Health Care as a Right: .a
Refutation," New England Journal of Medicine, 285(23:1288-1292
(Dec. 2, 1971)). The second seems to extend a common decision
principle that has accompanied the Hippocratic tradition and has
been applied as the principle of triage, whereby a physician is
enjoined to minister, in the time of a disaster, only unto those
that can most clearly benefit from medical treatment. The third
alternative combines a kind of random selection (in order of pre
sentation for treatment) with the Hippocratic ethic, and involves
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no selection among those presenting themselves by any other
criteria (except, perhaps, ability'to pay or the physician’s
willingness to accept them as patients).
The social service alternatives: Allocation according to
social worth; allocation by lot; allocation according to degree
of need; allocation as a form of compensatory justice. The first
of these sees the physician in the service of straightforwardly
utilitarian goals, where allocation aims at benefitting the
greatest number by acting to preserve first the lives of those on
whom the most depend. As Veatch puts it illustratively, "...if
forced to choose between John F. Kennedy and some hypothetical
senile alcoholic who happened to need medical attention on that
fateful day in Dallas, some would feel compelled to turn their
attention to the President. Treating a mother supporting three
small children may seem more compelling than caring for another
person without dependents." The second of this group of allocation
alternatives reflects the view of the profession defended by
Gene Outka ("Social Justice and Equal Access to Health Care,"
Journal of Religious Ethics, 2(l):ll-32 (Spring, 1974)), at least
in reference to basic or unavoidable, needs. The third suggests
an allocation principle to be employed in those cases when a
patient’s situation is the result of some unjust prior allocation
of medical or other resources (as when the patient has been in a
"ghetto" — physicial or educational -- all his life). All of these
principles involve viewing the profession as in the service of some
social principle, goal or movement that involves a group that is
wider or other than that which would most likely be selected by
the physician under a Hippocratic ethic.
Finally, some argue that selecting between humans according
to criteria of social worth or any other sort is implicitly to
make judgements between humans as better or worse than other humans
by intentionally selecting some to die, for to do so is to take (or
close to taking) the life of an innocent party which is always wrong.
Unless individuals select themselves out to a degree that those who
are left may all receive SLMR’s, this view holds that it as more
moral to withhold all SLMR’s.
"No one should receive such (artificial)
hearts until there are enough for all to receive" (Veatch, in reference
to a "conscientious thinker, worried over the allocation of the
artificial heart paid for by all through government funds").
The thorniness of the decision of what criteria to employ, if
any, is rather nicely illustrated in a series of three cases presented
by Howard Brody (in op cit., cases 41-43). Brody reports that medical
sociologists observe that the inclination toward random selection
procedures is correlated positively with the absence of information
about candidates, and that the inclination toward applying one or
another set of criteria is correlated with the availability of
additional information. Veatch notes that "Patients whose social
characteristics resemble those of the medical staff may get a higher
priority", which suggests that the decision on criteria for alloca
tion may be an unavoidably political one.
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Anyone who enters the medical profession will be unavoidably
faced with both sorts of allocational questions repeatedly. You
are urged to take this opportunity to do some thinking and some
reading on these issues (a packet of readings is available in the
Learning Resources Center (Farber 42a), and to come to the seminar
prepared to listen and participate.
Discussion Notes
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THE RIGHT TO CONFIDENTIALITY OF PSYCHIATRIC INFORMATION
Should a psychiatrist who knows of information about a patient’s
psychiatric diagnosis keep such information confidential, even if
it indicates that the patient is potentially dangerous to self or
society?
DATE, TIME, AND PLACE: Mar. 12 , 1979, 12:45-2;15 p.m., 144 Farber Ha]1
Case Study:
THE PSYCHIATRIST AS DOUBLE AGENT
(adapted from "Case Studies in Bioethics: The Psychiatrist
as Double Agent," in Hastings Center Report, 4:12-14
(February, 1974))
A freshman medical student, suffering from agitation, anxiety,
uncertainty about whether he could continue his studies, acute
distress, and on the verge of a disintegrative breakdown, went first
to the school psychiatrist and then to a private one. The school
psychiatrist had diagnosed him as a latent schizophrenic and had
referred him to the private one. The private psychiatrist started
intensive psychotherapy in an attempt to avoid hospitalization.
The student seemed on the verge of a schizophrenic break, with
impaired ability to test the reality of his perceptions of others’
intentions, an inclination to interpret the indifferent remarks of
others as referring to him, and an apathetic mood combined with
grandiose self-appraisal was developing. The private psychiatrist
wrote a letter for the student, stating that he was treating him
for "emotional problems" and recommending a medical leave, The
student succeeded in obtaining the leave at the end of the semester,
and withdrew in good standing.
However, the school psychiatrist had entered into his records his
own diagnosis of latent schizophrenia. The next fall, when the
student applied for readmission with the support of a letter from the
private psychiatrist, who stated that he was now medically able of
continuing, he was turned down on the sole grounds that he was con
sidered not suitable. Furthermore, he was turned down by every other
medical school to which he applied, for when these other schools wrote
to his original school, the reason given for his non-readmission was
the medical leave with latent schizophrenia. Presumably he was
regarded as a high risk, both as a student and as a potential surgeon:
about half of those with schizophrenia in remission have another
episode, and the power of the surgeon combined with grandiose ideation
would pose a serious risk to patients.
While the private psychiatrist recognized that the psychiatric
condition might be a valid reason for exclusion from medical school,
he questioned whether the school psychiatrist saw the patient in his
role as the patient’s physician or in his role as representative of
I1
school's administration, and whether these two roles could be kept
separated.
Is it acceptable for a physician on the staff of any
organization with which the patient has an independent relationship
(as of employee or student) to serve as both the organization's and
the patient's agent?
Review of Background Readings and Discussion:
In his discussion of this case in his book, Case Studies in
Medical Ethics (Cambridge: Harvard University Press, 157'7 (Case“
No. 19, pp. 76-82)), Robert Veatch points out that there are really
three possible conflicting obligations that the school psychiatrist
and the private psychiatrist feel: to the patient, to the medical
school, and to society in general. On the traditional Hippocratic
ethic, the psychiatrist is duty bound to regard as his or her pri
mary obligation service of the interests and needs of his or her
patients, and to allow no other obligation to take precedence.
This traditional ethic has been somewhat modified to allow physicians
to quarrantine carriers of dangerous, contagious diseases, and commit
those whose psychiatric conditions make them a clear danger to self
and others (although it can be argued that even this relaxation of
the physician's primary obligations is objectionable on moral grounds).
Such revisions in the Hippocratic code seem defensible,. if at all,
on the grounds that the physician is responding to the clear, immediate
and certain danger to others. By contrast, here the psychiatrist is
reacting only to a most probable danger to the health of future
patients, and may be representing only the economic interests of the
school.
In his commentary on this case in the Has tings Center Report y
Willard Gaylin defends the traditional conception of the psychiatrist 1 s
primary obligation being to the student,
student.
"In order to sustain a
relationship in which one individual places his very life in the hands
of another, there must be some assurance that the relationship will
be governed by its primary purpose: that is, the good of the patient,
the preservation of his life, the protection of his well-being. The
physician is under oath to 'do no harm.' It is the basis of trust
on which the profession of medicine has survived. Any infringement
on the inviolability of his contract threatens the whole medical
structure.... Had the student only seen the private doctor, he would
have been readmitted. The student's problems arose because he had
assumed that the school psychiatrist was indeed a psychiatrist, bound
by the codes of conduct, oath and ethics of his general profession."
Gaylin's argument can be even stronger: it is clear that it is to the
benefit of society that schizophrenics (and persons with contagious
diseases) receive treatment for their conditions, since that pre
sumably lessens the likelihood of their harming others. But without
being able to trust the physician to serve only his interests, the
patient whose condition poses a threat to others may well delay or
avoid seeking medical help and thereby increase the threat to the
general welfare. Hence, a strong case can be made that preserving
the traditional Hippocratic ethic does serve the general welfare, at
least in regards to the importance of observing strict canons of
confidentiality .
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At the same time, Gaylin grants that the physician has
responsibilities to the future patients of the would-be physician,
and that on rare occasion the physician may have to violate his
contract with the patient in service of a greater good.
"Never
should this violation of contract be a matter of diffidence or
routine, as is too often the case with ’company’ physicians. To
use the diagnostic skills of the physician to the detriment of
the patient, albeit for a larger good, should be a decision made
with the personal agony that always accompanies a moral dilemma."
Daniel Callahan has also commented on this case in the Hastings
Center Report, arguing that while a good case can be made that the
school made the correct decision given the information it had about
the student, the decision was made in an unjust manner and the
information was obtained by the school psychiatrist under what
amounted to false pretexts: "the school provided no formal review
mechanism for its procedurally arbitrary decision, and nothing
remotely approaching due process"; and "it is highly doubtful that,
when the student initially went to the school psychiatry, he was
informed that ’anything you say to me may be held against you,'
which was exactly what turned out to be the case." Callahan sees
a difference between the obligations of the psychiatrist and of the
medical school admissions committee: the psychiatrist's obligation
is either to maintain the confidentiality of the patient or to warn
the patient that he may use information disclosed by the patient to
his detriment; the admissions committee has obligations to society
and future patients (as indeed do the student’s instructors), and
to other "qualified candidates for medical school (who are not
latent schizophrenics and who could be taken but for lack of space)".
In a discussion ("Discussion", Psychiatric Progress, 1:2
(September, 1966)) in which the journal invited several physicians
to comment on the question, "Under what circumstances, if any, is
a breach of doctor-patient confidentiality justified?", a variety
of formulations of the principles governing disclosure were given.
The one which appealed to the principles of the Hippocratic ethic
most skillfully went like this: "The physician’s fundamental purpose
is to protect the patient. This includes protectinq him from him
self. It seems, therefore, that a breach is justified when it clearly
benefits the patient. Thus it is incumbent upon us to protect him
from becoming a murderer, because his act will...result in penalties
and punishment to him...." Such reasoning might be thought to pro
vide a rationale for disclosing the damaging psychiatric diagnosis
to the medical school in the present case, on the grounds that doing
so protects the student against a possible future suit for malpractice.
However, such appears to be a disguised form of paternalism, in which
the physician presumes to act for the patient rather than leave up
to the patient the responsibility of acting on the information himself.
This points up another feature of the traditional Hippocratic ethic,
namely, the incipient paternalism that characterized the patient
physician relationship in that traditional model.
f1
Henry A. Davidson (in "Professional Secrecy", in Ethical
Issues in Medicine, ed. by E. Fuller Torrey, Boston: Little /
Brown and Co.r 1568 (pp. 190-194); reprinted as "Role of
Physician and Breach of Confidence/’ in Moral Problems in Medicine,
ed. by Samuel Gorovitz et al., Englewood Cliffs: Prentice-Hall,Inc.,
1976 (pp. 87-90)) argues that the physician’s obligation extends
beyond protecting the patient to protection of others as well:
"...there is the problem of protecting public interest when it means
revealing a confidence. If you know that the driver of a school bus
is an alcoholic or epileptic, you should report it. Last year 30
people were killed when a bus driver had a heart attack and plunged
his bus into the East River in New York City. The driver’s physician
had known about the bad heart, had cautioned him not to drive, but
felt he could not report it to the company since the patient might
lose his job. In New Jersey some years ago, six people were killed
when a bus driver had a petit mal seizure. The treating doctor
knew about the epilepsy, pleaded with the patient to stop driving,
but didn’t think he ought to report it to the motor vehicle depart
ment." Again, one might argue that such disclosures are consistent
with the Hippocratic obligation to protect the welfare of the patient,
in that the drivers were ar risk for death or injury as a result of
accidents caused by their conditions, and were at risk for criminal
and civil liabilities for accidents caused by conditions about which
they had been duly warned and had concealed from their employers and
government, Davidson,
r
from the licensing organs of government.
however, clearly
views the responsibility of the physician in this case extending
beyond the pale of those persons who are his or her patients,r to a
much wider group of individuals; in such a conception, the physician
is clearly conceived of as a kind of public servant who is obligated
to use his relationship of trust with the patient for the benefit of
society in general.
Thus, in the specific issues of disclosure of psychiatric
information in this case, or the general issue of breaking confi
dentiality, there are two ways of viewing the issue (1) Does the
physician have a moral responsibility to society which on occasion
overrides obligations to the patient, or not?
(2) Is the physician
obligated to act in the stead of his or her patients, when they do
not act responsibly in their roles on the information disclosed to
them and the advice given them in their dealings with the physician?
In regards to this last question, it may be noted that "A few states,
such as New Jersey, require that any person who has knowledge of any
crime must report such knowledge to the authorities, otherwise he
becomes guilty of a crime himself. However, there are no reported
cases arising under this statute and it is thus doubtful if it, or
statutes similar to it, have ever been enforced. Most states adhere
to the more realistic standard of requiring the reporting of certain
criminal acts such as gunshot and stab wounds." (Neil L.Chayet,
"Confidentiality and Privileged Communication," The New England Journal
of Medicine, 275 (18) :1009-1010 (November 3, 1966)) .
f1
These questions, as well as other related ones, will be
discussed in the seminar. You are invited to consult the file
of readings in the Learning Resources Center (42A Farber), and
urged to come to the seminar to listen and participate in the
discussion.
Discussion Notes
Mp' ^0
t
ri
n
oi 2
INCOMPETENT PRACTICE
Does a member of the health care team have a moral obligation to
report instances of incompetent practice which he or she observes?
If so, to whom?
DATE, TIME, AND PLACE: .April 2, 1979, 12:45-2:15 p.m., 144 Farber Hall
Case Study:
THE BLUNDERED DIAGNOSIS AND THE PHYSICIAN’S RESPONSIBILITY
(adapted from Robert M. Veatch, Case Studies in Medical
Ethics, No. 33, pp. 113-114 (Cambridge: Harvard
University Press, 1977))
You are the resident house officer in a private urban hospital
on duty one Friday night, when a married man in his late fifties
comes to the emergency room complaining of abdominal discomfort and
a temperature. He explains that he has been unable to reach his
private physician, who is out of town and who has instructed his
answering service to direct his patients to the hospital emergency
room.
This man gives a history of a loss of appetite and loss of 30
pounds of weight over the past eight weeks, and complains of a
melon-sized mass in the upper left quadrant of his abdomen. When
questioned about the condition for which he was being treated by
his physician, the man indicates that he had a heart attack in
1968, and has had high blood pressure, but that during his last
visit to his physician a week ago, his blood pressure and heart
were checked and he was told he was "doing fine". You ask if he
mentioned his loss of appetite and weight, and he indicates that
he did but that the physician did not examine his abdomen. This
is confirmed by the man’s wife, although she was not present in the
examining room. The doctor had made no arrangements with any other
physician to cover for him while he was gone, a common practice on
his part despite Medical Board rules requiring staff physicians to
provide back-ups.
He is admitted for diagnostic evaluation. Routine lab tests
(all that are done in your hospital on the weekend) reveal ”a Hgb
of 9.1, a WBC of 74,000 (70 percent lymphocytes), and a very low
platelet count of 22,000. These values suggested a leukemia-like
state."
That night the man spikes a fever of 104°F, and begins to
bleed in his gastrointestinal tract. Blood platelet transfusion
is begun, but before the cause of the fever can be determined, he
dies. An autopsy reveals cancer of the lymph glands, with an
enlarged spleen of 200 grams and peritonitis as the immediate
cause of death."
r 1
You suspect that the private physician has been grossly
negligent and would probably be found guilty of malpractice in
a law suit. You consider suggesting a suit to the family but
are cautioned not to by your attending physician, who tells you
of another doctor in the hospital who was sued for libel after
reporting a colleague.
"This incident had since kept the hospital's
Medical Board from taking punitive action against any doctors who
failed to provide back-up coverage when not available." You are
advised not to get involved and not even to write a letter to the
local medical society, for fear of being charged with libel. "'After
all,'it (is) pointed out, 'how do you know that (the doctor) didn't
know that (the patient) had cancer but thought it would not be in
(his) best interest to tell him?'"
Review of Background Readings and Discussion:
Veatch states that "One of the stickier but normally ignored
ethical dilemmas in medicine is the problem faced by a member of
the health care team who realizes that a colleague has made an
obvious error in technique or ethics." That it is normally ignored
is perhaps confirmed by the absence of readings in the standard
collections on medical ethics on this subject.
Veatch notes that n The Hippocratic oath is first of all an oath
of secrecy and loyalty to one's medical colleagues." Thus the
dilemma arises, for the oath enjoins the physician to develop trust
as both the basis of the patient-physician relationship and as the
basis of the collegial relationship between physician and other
members of the health care team. When a physician does not live
up to the requirements of the covenant with the patient, the
colleague who contemplates reporting that breach contemplates
breaching another covenant. As Veatch notes, "The dilemmas of the
health care team member, especially if that person is a nonphysician,
if often between his duty to do what is best for the lay person, who
is not necessarily his own patient,...and his need to maintain a
cordial, collegial, trusting relationship with his errant colleague.
The sociopsychological pressure to 'be a team player' maintaining
loyalty to the medical group can be great indeed."
A further complication that Veatch notes is that the question
of trust between patient and physician "can be used to justify
either intervention to point out a medical colleague’s error or
nonintervention. On the one hand, the patient's trust--in the entire
health care delivery system as well as in the individual physician
can be maintained better if the patient is not informed of the error.
On the other hand, the general refusal to disclose errors certainly
erodes patient trust."
The third area of complication that is raised by this case is
that of the influence on the would-be informer's decision of the
fear of reprisal. That is represented in the present case by the
threat of a suit for libel, but it can also involve the potential
loss of one's job (particularly acute for employees of the hospital,
such as nurses), or the potential of loss of good recommendations
(as in the case of the medical student on clinical rotation, or even
the intern or resident).
f1
In response to this point, it is frequently argued that a
nurse or physician in training may lack either sufficient knowledge
and skill in assessing the facts of a case to make a fair judgement
as to the correctness of some procedure; or because of lack of
detailed knowledge of the individual case and its management, or
of the "professional judgement" made by the responsible physician,
it may be that what appears to be an inexcusable omission is in
fact the result of a considered and defensible judgement.
All of the above seem to point to the need for an institu
tionalized means for patients and colleagues to be able to raise
questions about the propriety of a physician's decisions and con
duct without either personal risk or necessarily reflecting upon
the competence of the physician. One alternative that has been
proposed and is being implemented in some hospitals is the socalled Patient's Advocate, or Ombudsman, or Medical Arbitrator,
an individual or office charged with impartially receiving and
investigating charges of professional misconduct, patient dissatis
faction, or interprofessional disputes. The idea is based upon the
notion that it is easier to arbitrate a dispute in which feelings
may run high as a disinterested party than as an interested one.
Dr. Harry Gordon, Professor Emeritus of Pediatrics and Director
Emeritus of the Rose F. Kennedy Center for Research in Mental
Retardation and Human Development, Albert Einstein College of
Medicine, has been active in developing such a program at the
Bronx Municipal Hospital Center, and there is interest in developing
a similar office at Meyer Memorial Hospital (The Erie County Medical
Center) .
The alternatives to institutionalized handling of apparent
cases of incompetent practice on a case-by-case basis are: (1) deal
ing with individual cases through the legal system, with malpractice
suits being the patient's chief means of achieving redress;
(2) recognition that in medical practice, as in any profession,
there is a certain unavoidable measure of error, and treating cases
which fall within that measure as regrettable but to be expected.
For some cases of mistaken diagnosis or so-called "unnecessary
surgery" this second alternative is rather clearly defensible, e.g.,
it is necessary in order to maximize successful treatment of atypical
appendicitis to remove a certain percentage of health appendixes.
But it is clearly difficult to achieve a policy whereby one can
always judge between necessary and unnecessary errors, and such
policies frequently sound to patients like self-serving rational
izations dreamed up by physicians to protect themselves against
malpractice suits.
Instead of merely dealing with the problem solely on the
individual case-by-case basis, the profession has also taken the
route of establishing standards*of professional competence in which
physicians must qualify to gain the right to practice and must engage
in a certain amount of continuing education in order to maintain that
right. No doubt such promulgation of professional standards decreases
f1
the number of instances of incompetent practice by keeping the
physician abreast of developments in his or her field, but
physicians do not have to repass competency examinations on a
periodic basis. This system also provides no means for dealing
with the residue of instances of incompetent practice.
Concerning the question of whether one member of the health
care delivery team should report apparently incompetent practice
by another, the Hippocratic tradition would seem to yield a clear
affirmative only when the patient of the incompetent professional
is also a patient of the person who has evidence of the malpractice,
and then only if doing so is in the interests of the patient. In
the present case, the family of the dead patient are not patients
of the house officer; the dead patient cannot be benefitted by
exposing the mal-diagnosis; and the Hippocratic pledge of secrecy
and loyalty to one's colleagues would be violated by "going public".
(The major recourse, of course, is for a private and personal con
tact with the private physician. Peer pressure can be an effective
means of modifying behavior, but it is generally not effective when
not brought by one who is regarded as an equal.)
Viewed from the stance of the physician as social servant, the
obligation to disclose the error would seem to be clearer. Insofar
as one regards himself or herself as having a primary duty to a
wider population of individuals than one's own patients, stopping
a pattern of incompetent practice on the part of another physician
(or other health-care professional) would seem to be required by
one's obligation to further the medical welfare of the society at
large. Again, though, this is complicated by the dilemma of trying
to maintain both the individual patient's trust in his or her
physician and the trust of patients as a class in the health care
system; it is also complicated by the question of how one's dis
closures will affect one's own continued effectiveness in the delivery
of health care.
Every physician is bound to encounter the apparent effects of
malpractice, or to witness apparent instances of malpractice, in
his or her career. You are invited to look over the (small) file of
material on reserve in the Learning Resources Center (Farber 42a)
and to attend this seminar as a part of your efforts to decide how
to deal with the phenomenon of incompetent practice.
r1
NONTHERAPEUTIC MEDICAL EXPERIMENTATION
Is it every morally permissible to conduct an experiment on a
patient that does not carry a strong potential of therapeutic
benefit to that patient, particularly when the patient is not
able to give informed consent?
DATE, TIME, AND PLACE: Apr
Case Study:
23,1979,12:45-2:15
144 Farber Hall
BENEFITTING MENTALLY RETARDED CHILDREN BY GIVING
THEM HEPATITIS
(adapted from Robert M. Veatch, Case Studies in
Medical Ethics, Case No. 87, pp. 274-275
(Cambridge: Harvard University Press, 1977))
In 1949 , endemic hepatitis was recognized in Willowbrook State
Hospital, Staten Island, New York, an institution for the care of
the mentally retarded. Other infectious diseases such as measles,
shigellosis, and various parasitic and respiratory infections,
were also prevalent at the institution. In 1954 Dr. Saul Krugman
was appointed as a consultant in pediatrics and infectious diseases,
and in 1956 he and his associates initiated studies on hepatitis in
the hope of developing techniques for controlling the disease in
the institution. The average number of residents at any one time
was about 5,000 children.
Four times a year for the next 14 years, 12-15 children were
admitted into a special research unit. Thus, more than 700 retarded
children had infected serum injected to produce hepatitis, with the
objective being "to gain a better understanding of the disease and
possibly to develop methods of immunizing against hepatitis." The
research was initially approved by three review bodies: the Executive
Faculty, New York University School of Medicine; New York State
Department of Mental Hygiene of the New York State Department of
Health; and the Armed Forces Epidemiological Board (one of the
funding agencies for the research). Later parts of the study were
reviewed and approved by the New York University and Willowbrook
State School committees on human experimentation.
Saul Krugman defended the decision to deliberately infect
children with strains of hepatitis virus in a letter to The Lancet
(May 8, 1971) , in response to a letter from Dr. Stephen Goldby (The
Lancet, April 19, 1971), who had called the experiments ones”conducted solely for the acquisition of knowledge” and who had charged
Krugman with a violation of the World Medical Association’s Draft
Code of Ethics on Human Experimentation, 1961 (which states, "Persons
retained in mental hospitals or hospitals for mental defectives should
not be used for human experiments"). Krugman’s defense was that
"(1) they were bound to be exposed to the same strains under the
i
natural conditions existing in the institution; (2) they would be
admitted to a special, wel 1’-equipped, and well-staffed unit where
they would be isolated from exposure to other infectious diseases
which were prevalent in the institution... thus, their exposure in
the hepatitis unit would be associated with less risk than the type
of institutional exposure where multiple infections could occur;
(3) they were likely to have a sub-clinical infection followed by
immunity to the particular hepatitis virus; and (4) only children
with parents who gave their informed consent would be included.”
Review of Background Readings and Discussion:
Daniel Callahan, in commenting on an unrelated case, sets the
question for an initial examination of the ethical issues involved
in the Willowbrook study.
"I have long been troubled by the pro
blem of whether there can be ethically correct decisions within
settings which are inherently unjust or immoral, i.e., in those
situations where certain kinds of ethical dilemmas would not ordi
narily arise but for the fact of distorted or corrupt institutions.
In the era of slavery, for example, acute ethical dilemmas used
to arise (for some, at least) over the most moral way of separating
children from parents when all were to be sold at auction, Obviously
the very institution of slavery was immoral. But does that entail
that each and every decision made within the given context of such
an institution was also and equally immoral, regardless of what the
decision was?...My answer is "no": correct ethical choices can
sometimes be made in unjust contexts. But the larger ethical question remains that of the unjust context, which requires correction."
(Daniel Callahan, commentator, "Case Studies in Bioethics
Bioethics:: the
Center Report 4 (February, 19 74) :
Psychiatrist as Double Agent," Hastings
________
Paul Ramsey
12-13; reprinted in Robert M. Veatch', op cit. , 79-80)
("Children in Institutions", in The
___________________
Patient as Person (New Haven:
Yale University Press, 1970), pp. 40-58 ;* reprinted in Samuel Gorovitz
et al., eds., Moral Problems in Medicine (Englewood Cliffs: PrenticeHall, Inc., 1.9 76) , pp^ 129-142T brings this concern to bear on
Willowbrook, noting that in Krugman's reports there is an implicit
acceptance of the endemic diseases as "natural" (Willowbrook "had
endemic infectious hepatitis and a sufficiently open population so
that the disease could never^uieted by exhausting the supply of
susceptibles" ("Studies with Children Backed on Medical, Ethical
Grounds," Medical Tribune and Medical News 8 (19):1, 23 (February
20, 1967)), is attacked by Ramsey as undefended: "Nothing is said
about attempts to control or defeat the low-grade epidemic at
Willowbrook by more ordinary, if more costly and less experimental,
procedures... Clearly it would have been possible to secure other
accommodation for new admissions away from the infection, while
eradicating the infection at Willowbrook building by building....
If this had been an orphanage for normal children or a floor of
private patients, instead of a school for mentally defective
children, one wonders whether the doctors would so readily have
accepted the hepatitis as a "natural" occurrence and even as an
opportunity for study." Callahan's principle, that it is possible
to make ethical decisions in an unjust context, is implicitly
modified by Ramsey with the proviso, "unless one thereby helps
to maintain the unjust context".
f1
Veatch is clearly bothered by this aspect of the case: ’’All
things considered, there is the possibility that the patients in
a research project such as this, who are undergoing controlled
exposure to hepatitis but are receiving high-quality general health
care, might be better off than their peers in the general institu
tional wards.... Is it ethically acceptable to justify an experiment
on the grounds that the subject will benefit from the research, when
he will benefit from it only because of the social condition in which
he finds himself? In this case it is clear that if the residents at
Willowbrook received optimum health care and lived in minimally
sanitary conditions, the argument that the subjects in the research
unit would on balance be better off by receiving the intentional
exposure to hepatitis would collapse.’’
It is difficult to judge retrospectively whether Krugman and
associates were, or even honestly thought they were, relatively
powerless to proceed with a direct assault on eliminating the source
of the infections "building by building". But two lingering doubts
remain. First, Krugman admits to an appreciation of the large
implications of finding an immunization against hepatitis: "It is
unnecessary to point out the additional benefit to the world-wide
populations which have been plagued by an insoluble hepatitis
problem for many generations." (Krugman, in his letter to The
Lancet of May 8, 1971). Second, Ramsey points out that there was
already "some evidence from the beginning that gamma globulin pro
vided at least some (temporary) protection... It is axiomatic to
medical ethics that a known remedy or protection -- even if not
perfect or even if the best exact administration of it has not been
proved -- should not be withheld from individual patients. It seems
to a layman that from the beginning various trials at immunization
of all new admittees might have been made, and controlled observation
made of their different degrees of effectiveness against "nature" at
Willowbrook. This would doubtless have been a longer way round,
namely the"anecdotal" method of investigative treatment that comes
off second best in comparison with controlled trials. Yet this seems
to be the alternative dictated by our received medical ethics, and
the only one expressive of minimal care of the primary patients
themselves."
A possible and plausible interpretation of the Willowbrook
studies sees them as resulting from physicians (i) viewing them
selves as under a primary obligation to a wider population than
those who are their direct patients, and (ii) dedicated to pro
viding that wider population with the best, most reliable scien
tific knowledge in service of its interests and needs. Obtaining
such knowledge requires the use of controlled clinical trials (thus,
the administration to some subjects of various doses of gamma
globulin and the withholding of any from others, who served as
controls; thus the administration of gammas globulin to a group of
subjects and then their division into two groups, one of controls
and the other of subjects fed hepatitis virus "in concentrations
estimated to produce hepatitis with jaundice in half the subjects
f1
tested" (Ramsey, op cit.)). The infected patients are described
thusly: "The liver became enlarged in the majority, occasionally
a week or two before the onset of jaundice. Vomiting and anorexia
usually lasted only a few days."
(Krugman, et al., "Infectious
Hepatitis: Detection of the Virus during the Incubation Period and
in Clinical Inapparent Infection," New England Journal of Medicine
‘c
261 (15):(October 8, 1959)). We now know, points out Ramsey, that
"cirrhosis of the liver results from infectious hepatitis more
frequently than from excessive consumption of alcohol". Thus, while
"their exposure in the hepatitis unit would be associated with less
risk than the type of institutional exposure where multiple infections
could occur" (Krugman, letter to The Lancet, op cit.), one must be
quite sure that there were no alternatives to that institutionalization
save the ones provided by the study in order to accept the deliberate
infection with hepatitis as the least risky alternative (acceptance
of which seems necessary to regarding the experiment as therapeutic
as well).
One of the major sources of Ramsey’s opposition to non-therapeutic experiments on children and other populations that are
incapable of giving fully voluntary, informed consent, is just that:
they are subjected to experimentation on the authority of others who
provide "proxy consent" for the risks of the experiment. Ramsey
contests whether the consent of a parent to such nontherapeutic
exposures to risk is a valid substitute for the (impossible to
obtain) consent of the child. His view seems to be that parental
consent is constrained to decisions on what will benefit children;
that while an adult may validly consent to participating in a
nontherapeutic experiment, none may so consent for another (save
one who has been empowered as a real proxy by that other).
Richard A. McCormick ("Proxy Consent in the Experimental
Situation", in Perspectives in Biology and Medicine, 18 (1) :2-20
(Autumn, 1974)) examines the notion of parental consent to therapy
and finds that "it is morally valid precisely insofar as it is a
reasonable presumption of the child’s wishes, a construction of
what the child would wish could he do so... (And, T)he child would
wish this therapy because he ought to do so. In other words, a
construction of what the child would wish (presumed consent) is
not an exercise in adult capriciousness and arbitrariness, subject
to an equally capricious denial or challenge when the child comes
of age.... To see whether and to what extent this type of moral
analysis applies to experimentation, we must ask, Are there other
things that the child ought, as a human being, to choose precisely
because and insofar as they are goods definitive of his growth and
flourishing? Concretely, ought he to choose his own involvement
in nontherapeutic experimentation, and to what extent?.... (I)f we
can argue that a certain level of involvement in nontherapeutic
experimentation is good for the child and therefore that he ought
to choose it, then there are grounds for saying that parental
consent for this is morally legitimate and should be recognized
as such." (McCormick does not notice that the converse of this
f 1
consequent is that ‘parental dissent to nontherapeutic experi
mentation is morally legitimate and should not be recognized'.)
McCormick then argues that there is a duty, arising from our
nature as social beings, to further the good of health in others;
"to share in the general effort and burden of health maintenance
and disease control is part of our flourishing and growth as humans.
To the extent that it is good for all of us to share this burden,
we all ought to do so. And to the extent that we ought to do so,
it is a reasonable construction or presumption of our wishes to
say that we would do so. The reasonableness of this presumption
validates vicarious consent (to participating in nontherapeutic
experimentation) ."
However, McCormick also recognizes that there is a limitation
on what may be consented to under this principle. "(W)hen a par
ticular experiment would involve no discernible risks, no notable
pain, no notable inconvenience, and yet hold promise of considerable
benefit, should not the child be constructed to wish this in the
same way we presume he chooses his own life, because he ought to?
I believe so." When he addresses the question of which experiments
are permitted under these strictures, McCormick notes "that the
notions of 'discernible risk' and 'undue discomfort' are themselves
slippery and difficult, and probably somewhat relative"(my emphasis).
Although he does not spell these out, the kinds of relative considera
tions he has in mind are presumably those natural conditions of the
background situation in which the child exists; so that while it
would be impermissible to expose a normal child in a suburban home
to hepatitis, relative to the risks inherent in the natural situation
at Willowbrook, such exposure might (as Krugman has argued) involve
a positive gain in the risk/benefit ratio for such a child.
(It is
surprising, then, to find McCormick seeming to exempt children who
are institutionalized from what is implied by the foregoing. How
ever, the essence of what he urges for such children is extra
special care, that their disadvantaged condition not tempt us to
regard them as "lesser human beings" and thus presume to impose
even greater burdens on them (as we do on nonhuman experimental
animals) .)
McCormick's position may be seen as an attempt to escape
between the horns of the dilemma of the physician who feels equally
strongly the obligation to protect his or- her patients from harm,
and the obligation to further the general welfare. For, McCormick
reads that latter obligation into the patient, and argues that,
within limits, it is moral to expect patients (and other humans)
to participate in nontherapeutic experimentation. The physician
who holds to only one horn, the Hippocratic ethic, will have none
of this; the physician who holds only to the other horn, the ethic
of social responsibility and service, will not be particularly
bothered by situations in which an individual's welfare must be
subordinated if the general welfare is to be served. The Willow
brook studies~Twhich also involved, by the way, the development of
a highly effective measles vaccine) stand as an exemplar of the
kind of situation that produces the widely divergent moral judgements
incipient in these two ethical traditions: and the comment of
Robert H. Moser, editor of the Journal of the American Medical
F 1
Association (editorial in vol. 277:432 (1974)) to the question of
whether weare ever justified in the use of children in experi
mentation, needs to be seriously questioned: "It is an insoluble
dilemma. All one can ask is that each situation be studied with
consummate circumspection and be approached rationally and com
passionately. " For, the danger in that approach, as Callahan
notes, is that we focus only on the question, what is the moral
thing to do in this situation? and lose sight of the questions,
Is this situation itself moral? and If not, can I do anything
about it?
Physicians engaged only in providing therapeutic medicine
may well think themselves rendered immune to confronting these
dilemmas by their choice against actively doing research. Howevery, they stand to serve as beneficiaries of such research,
and the question of whether it is moral to use knowledge gained
by questionably moral means, thereby tending to perpetuate what
ever patterns of ethically questionable experimentation has pro
duced those advances, is one that every physician may have to
grapple with. You are invited to look through the file of articles
on reserve in the Learning Resources Center (Farber 42a) and to
come to the seminar as a participant-observer.
I \
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