Excerpts from LB McCullough, PhD. Primer on Bioethics

Excerpts from LB McCullough, PhD. Primer on Bioethics Ill. What Morality Ought to be For Health Care Professionals: The Ethical Obligations of Health Care Professionals to their Patients and to Third Parties to the Health Care Professional Patient Relationship. The health care professional patient relationship as a moral relationship is other directed, from the health care professional to the patient (for the most part) and from the patient to the health care professional. (For the latter, see next section.) That is, the health care professional's concern, as the patient's fiduciary, ought to be directed primarily to the patient's interests rather than primarily to the health care professional's own interests. Indeed, it has been a staple of the history of Western medical ethics that the health care professional's primary ethical obligation is to protect and promote the patient's interests. Medical, dental, allied health, and medical social work ethics are based on the same general obligation. In this respect, the ethics of the health care professions is the same. This basic ethical obligation is not free floating. It must be attached to, by being made real in the lives of, individual health care professionals. That is, a commitment to discerning and fulfilling this basic ethical obligation must be constitutive of the health care professional s character. An account of what morality ought to be for health care professionals therefore reliably begins with the virtues of heal th care professionals that make the obligation to protect and promote the patient's interests a way of life for health care professionals. Forming oneself and living according to these virtues make one a fiduciary of patients. Four Fundamental Virtues. The health care professional is expected to be a fiduciary of patients. Four virtues seem fundamental to the health care professional becoming and remaining a fiduciary, because these virtues (a) direct the health care professional's attention primarily to the patient's interests and, as a rule, secondarily to the health care professional's interests and (b) move the health care professional to act to protect and promote the patient's interests. Two virtues seem essential to the first of these two tasks. The first virtue is self effacement, the willingness routinely to put aside differences that should not count in the care of patients. Thus, such matters as the patient's manner of dress or speech or religious beliefs or lack of same should not count. The health care professional should focus neither on these nor on his or her responses to them, whether an adverse reaction or an attraction 1

(e.g., sexual attraction). Otherwise, the health care professional s own interests become the health care professional's primary focus of concern and the patient's interests slip from view. The second virtue is self sacrifice, the willingness to risk one's other relationships, as well as health and even life that are threatened in and by the care of patients. Self effacement and selfsacrifice blunt the health care professional's understandable inclination to focus on himself or herself in favor of focusing on the interests of the patient Two virtues seem essential to the second of the two tasks of the virtues in the health care professional patient relationship. Compassion is willingness to acknowledge, to respond to, and to relieve the suffering and distress of others. Compassion thus has an intellectual component, the capacity to identify reliably when someone is suffering and distressed. Compassion also bas a motivating component; it moves the health care professional to relieve the suffering and distress of the patient. Integrity is the willingness to form rigorous, well made clinical and ethical judgments about how to protect and promote the interests of others. This is crucial in the health care professions, because of the enormous power that health care professionals can wield in the care of patients. Integrity therefore requires the health care professional to act within and not exceed the limited competencies of their profession to protect and promote the patient s interests. Compassion and integrity together move the health care professional to protect and promote the patient's interests. In the absence of these four virtues, the health care professional can have at most only a minimalist contractual relationship with patients. In such a minimalist relationship, the health care professional is to negotiate to provide contracted services and then to provide those services nothing more or less. This view of the health care professional patient relationship is not adequate even in the law, which requires and expects the health care professional also to be the fiduciary of each patient to look out for the interests of the patient beyond those that might be the object of a contract for services. The law, though it expects the health care professional to be a fiduciary of each patient, does not explain well what it takes to do so; ethics does, with the language of virtues. The virtues of self effacement, self sacrifice, compassion, and integrity explain what it takes to be in practice, day to day, for each and every patient someone who is primarily committed to protect and promote the patient's interests. 2

The moral demands of these virtues are not absolute, i.e., without limits. Indeed, one of the central questions of the ethics of health care professionals is what ought to count as limits to such obligations. That is, health care professionals themselves have legitimate self interests that they are justified into taking into account and sometimes wanting to protect. Legitimate s e l f interest a c o n t r o v e r s i a l category i n contemporary bioethics includes at least three sorts of interests of health care professionals. The first are the requisites for providing good patient care, e.g., adequate rest, time to study and reflect, etc. The second are the obligations that the health care professional owes to others than patients in his or her life beyond medicine, e.g., spouse, children, friends, etc. The third are those activities beyond clinical practice in which the health care professional finds meaning and the possibility for as coherent a life as conditions in the late twentieth century permit. Unless a compelling case can be made for them, other forms of self interest of health care professionals should be regarded as mere self interest. 5 An important but little appreciated threat to these legitimate interests and thus to making the fundamental virtues vices comprises institutional practices and policies that invite health care professionals to make mere selfinterest primary or to set limits on or compromise the fundamental virtues in unreflective and arbitrary ways. Many economic incentives utilized in health care institutions, including academic medical centers, m a y i n v i te health c a r e p r o f e s s i o n a l s t o m a k e r e m u n e r a t i o n a p r i m a r y concern. Adequate remuneration, job security, and job advancement are surely among the legitimate interests of health care professionals, but should be secondary to and the result of the commitment to excellence in patient care. Institutional policies and practices as distinguished from institutional rhetoric may be a threat to this ethical relationship. One challenge to health care executives is to see to it that this aspect of institutional practice and policy is minimized or even eliminated. The Ethical Principles of Beneficence and Respect for Autonomy in Clinical Judgment and Practice. The four fundamental virtues of the health care professional make real the ethical obligation to protect and promote the interests of each and every patient. But what does it mean to protect and promote the patient's interests in one's clinical judgment and practice in the care of each patient? This question is addressed by the ethical principles of beneficence and respect for autonomy. That is, these two principles can be thought of as practical, clinically applicable and adequate tools for translating into daily clinical practice the general, 3

abstract ethical obligation to protect and promote the patient's interests. The key to doing so is the recognition that there are two perspectives on those interests: (a) that of medicine and the other health care professions, translated into clinical practice by the ethical principle of beneficence; and (b) that of the patient, translated into clinical practice by the ethical principle of respect for autonomy.6 The ethical principle of beneficence requires the health care professional to act in such a way that the consequences for the patient of the health care professional's behavior in patient care are reliably expected to be a greater balance of goods over harms, as those goods and harms are understood from a rigorous clinical perspective. The various health care professions have important contributions to make to the development of this perspective. This is the most ancient of all the ethical principles of bioethics. For example, the Hippocratic Oath states: I will apply dietetic measures for the benefit of the sick according to my ability and judgment.7 To this the Epidemics, a text accompanying the Oath, adds: Declare the past, diagnose the present, foretell the future; practice these acts. As to diseases, make a habit of two things to help, or at least to do no harm.8 Notice that both texts emphasize acting for the benefit of the patient as the primary consideration, not the avoidance of harm as the primary consideration. That is, "primum non nocere" or "first, do no harm" is not the primary meaning of the principle of beneficence. "First, do no harm" occurs nowhere in the Hippocratic texts; indeed, its historical origins are unknown. "First, do no harm," a version of the ethical principle of non maleficence, is not a first principle of bioethics, because, if it were, modern medicine and health care would have to cease their work virtually none of what they offer patients is free of harm. Because medicine and health care are fundamentally oriented to benefitting patients on balance, beneficence is the primary ethical principle, with non maleficence a limiting principle. That is, when the health care professional is on balance doing more harm than good to the patient or even doing only harm, which can sometimes happen, the health care professional ought to cease to do so. To employ the principle of beneficence reliably in clinical judgment one must be able to do the following. First, one must be able to specify 4

reliably the goods to be sought and the harms to be avoided for patients. Otherwise, the principle of beneficence becomes an empty slogan. The goods and harms of beneficence based clinical judgment can reliably be specified on the basis of the competencies of the health care professions. (There is nothing unique to medicine, nursing, or dentistry in this respect, because the divisions of labor among the health care professions result more from historical accidents than rigorous conceptual differences.) That is, the health care professions are capable of seeking limited, but surely important, health related goods on the basis of accumulated scientific knowledge and accumulated clinical experience and skills. (These are not the functions of an idiosyncratic perspective of an individual health care professional, but the product of well formed, rigorous clinical judgment.) The goods that the health care professions are competent to seek for patients are the prevention of premature or unnecessary death and the prevention and management of disease, injury, handicap, and unnecessary pain and suffering. Death is premature when it occurs before life expectancy, adjusted for underlying irreversible morbidity. Death is unnecessary when it can be prevented at an ethically justified cost in terms of iatrogenic pain, suffering, injury, disease, or handicap. Pain and suffering become unnecessary when they do not result in the achievement of any of the other goods of beneficence. They then become harms to be avoided. Second, one must be able to reach reliable clinical judgments about which courses of intervention or non intervention are reliably expected to produce a greater balance of goods over harms and thus protect and promote the interests of the patient to some reasonable degree. Usually, it will be the case that beneficence based clinical judgment identifies a range or continuum of responses that protect and promote the patient's interests. Thus, one should beware of the language of best interests, where this is taken to mean that beneficence based clinical judgment should routinely identify the only response that is in the patient's interest. One of the principal sources of paternalism (restricting the patient's autonomy and acting on beneficence based judgment) and ethical conflict in the clinical setting is failing to see that there are other alternatives that are justified in beneficencebased clinical judgment. 5

The goods and harms to which beneficence based clinical judgment can speak are limited by the competencies of the health care professions. The latter are capable of addressing some but surely y not all human goods. This feature of beneficence based clinical judgment is crucial for understanding religiously based objections by patients to certain forms of medical interventions, e.g., the refusal of blood products by Jehovah's Witnesses. Members of this faith community value their health and life, but they value more their faithful obedience to God's commands, which members of this faith community understand to include the prohibition of blood products. Medicine and the other health care professions are not competent to speak to whether this hierarchy of values is reasonable, inasmuch as the health care professions, as scientifically based and therefore secular professions, can claim no competence in theological matters. The principle of respect for autonomy requires the health care professional to act in such a way that the consequences for the patient of the health care professional's behavior are reliably expected to be a greater balance of goods over harms, as those goods and harms are understood from the patient s perspective. That is, each of us brings his or her own values and beliefs to being a patient and can form preferences on the basis of those values and beliefs. Respect for autonomy translates the patient's perspective on his or her interests into clinical practice. This ethical principle is entirely a creature of the twentieth century and has its origins outside of the social institutions of medicine and health care, in the common law of informed consent (with origins in the nineteenth century and dating from landmark cases at the beginning of our century) and in ethics (starting in the sixth decade of our century). 9 To employ the principle of respect for autonomy in clinical practice the following elements of the informed consent process must occur. First, the health care professional must disclose an adequate amount of information to the patient or to the surrogate of patients not capable of making their own decisions about the patient's condition, about all alternatives for its management, including doing nothing (i.e., a trial of non intervention), and about the benefits and risks of each clinical management strategy, including doing nothing. It is important at this early stage of the informed consent process that the health care professional attempt to identify and correct mistaken or false factual beliefs of the patient about these matters. Second, the health care professional must elicit from the patient or the patient's surrogate when the patient has lost decision making capacity values and beliefs of the patient relevant to the task of evaluating the patient's condition and alternative 19 6

management strategies. That is, the patient needs to understand the disclosed information cognitively (in terms of the consequences of various management strategies) and evaluatively (in terms of the worth or importance of those consequences for the patient by the patient's own lights). 10 As with beneficence based clinical judgment, the goal is to identify the full range or continuum of management strategies that, on the basis of the patient's or surrogate's patient values based evaluation, protect and promote the interests of the patient to some reasonable degree. Beneficence and Respect for Autonomy Together. When the principles of beneficence and respect for autonomy are properly utilized in clinical judgment and practice, clinical decision making becomes a shared process of negotiating clinical management strategies for the care of the patient on the basis of the common ground created by identifying all beneficence based and autonomy based management strategies. An ethical challenge to health care executives concerns the extent to which informed consent in your institution routinely resembles this meaningful process, as opposed to the largely meaningless, bureaucratic ritual epitomized in the request, "go get the consent." 11 19 7