JMBR: A Peer-review Journal of Biomedical Sciences June 2005 Vol. 4 No.1 pp-22-30

Obligation of non-maleficence: moral dilemma in physician-patient relationship

Peter F Omonzejele

ABSTRACT This paper highlights the principle of non-maleficence from sections of the Hippocratic oath and those entailed in various declarations of medical and conduct. The moral dilemmas associated with adherence or efforts at adherence to the principle were indicated with the use of prepared cases. The centrality of the paper is the moral conflict encountered by physicians in their efforts at maintaining the relationship that they have with patients. The concepts of dignity, identity, harm and the definitions of brain death as different from biological death, ordinary and extraordinary health care and the principle of double effect were analysed in an attempt to resolve the moral conflict in physician-patient relationship. Cost-benefit analysis, detriment-benefit assessment and the notion of justice were also brought to bear in the effort to resolve the moral dilemma in physician-patient relationship as it borders on the of non-maleficence.

INTRODUCTION kinds of relationships could be entered into as a result of the demands of professions and Relationships between two or more persons duties, as is the case with the physician- depict some sort of connection that is beyond patient relationship. mere exchange of pleasantries or show of In the course of duty and relationship with civility. Rather, it indicates some sort of patients the physician must adhere to certain intimacy that usually emanates from contact principles of (autonomy, non- and communication. Relationships are freely maleficence, beneficence and justice), rules developed amongst individuals such as the (fidelity, , privacy and veracity) cultivation of friendships and acquaintances, and virtues (compassion, kindness, respect, while other relationships are not as freely etc). A physician may be sanctioned if he cultivated. In contrast, they are determined, breaches the principles and rules of medical such as relationships between brothers and ethics, but he may not necessarily be liable sisters, cousins and relatives in general. Other or compelled to uphold the virtues entailed in his line of practice and duty. It is, however, KEY WORDS: Hippocrate, justice, ethics, physician, patient morally upright (but not obligatory) for a physician to be compassionate, kind and to Correspondence: Peter F. Omonzejele, Department of show respect for his/her patients. Respect for , University of Benin, Benin City, Nigeria. patients and the wishes of patients are two Tel: 2348043271636, 2348043271722; E-mail: different issues that must not be confused. [email protected] © CMS UNIBEN JMBR 2005; 4(1): 22-30 Obligation of non-maleficence: moral dilemma in physician-patient relationship 23 The principles and rules of medical ethics While the International Code of Medical Eth- are derived from the Hippocratic oath and ics (English text) states that: various declarations (Declaration of Geneva as amended in Sydney 1968, Declaration of A doctor must always bear in mind the obligation of preserving life. Tokyo 1975, Declaration of Oslo 1970, Declaration of Helsinki 1975, etc) regulating In other words, the duty and of medical practice. Despite the Hippocratic oath physicians to their patients remain unequi- and various declarations, a certain aspect vocally that of beneficence and non-maleficene. (non-maleficence) of the oath and declaration The principle of non-maleficence revolves is sometimes breached in what seems to be in around the concept of harm. Harm brings the “interest” of patients in circumstances that about pain and pain brings about distress. constitute moral dilemmas. Harm may be incidental, intended and intrinsic.1 According to Thomasma and PRINCIPLE OF NON-MALEFICENCE Graber, incidental harm is brought about The physician-patient relationship is through carelessness and negligence, fiduciary. The patient and trusts that intended harm is calculated and inflicted pain, the physician would apply his professional while intrinsic harm is such that harm is expertise in his/her (the patient’s) interest and directly brought about. They explained further benefit. Even more importantly, the patient that to kill a person deliberately has the believes that his/her physicians (based on the intrinsic effect of harming (the patient), thus principle of non-maleficence) would do it violates the negative duty not to harm. nothing to harm him/her. The principle of Physicians’ obligation not to harm is reflected non-maleficence runs through from the in various codes and declarations of medical Hippocratic oath to current versions and ethics. amendments of medical ethics. In the Non-maleficence in general, and medical Hippocratic oath (in the translation preferred non-maleficence in particular, recommends by the British Medical Association), the aspect that one ought not to inflict evil or harm.2 that is instructive and serves as guide to Albert Jonsen in his work Do no Harm physicians in respect of non-maleficemce itemised medical non-maleficence into four states that: categories: physicians must (a) dedicate themselves to the well-being (not harm) of I will follow that system of regimen, which, according to my ability and judgment, I patients; (b) provide adequate care; (c) properly consider for the benefit of my patients, assess the situation, that is, risk/benefit and abstain from whatever is deleterious analysis; and (d) make proper detriment- and mischievous. I will give no deadly benefit assessments.3 The physician’s medicine to anyone if asked, nor suggest provision of ‘standard due care’ is central to any such counsel. the avoidance of harm. According to the American Reports, elements inherent in In the declaration of Geneva, and as amended due care may be said to be violated and harm in Sydney 1968, physicians were expected inflicted when and if the: (1) professional and indeed mandated to: (physician) has a duty towards the affected ... maintain the utmost respect for party (patient); (2) professional (physician) life from the time of conception; even breached that duty; (3) the affected party under threat, ... not [to] use medical (patient) must experience a harm; and (4) this knowledge contrary to the of harm must be caused by the breach of duty.4 humanity. Based on these elements, the obligation of

© CMS UNIBEN JMBR 2005; 4(1): 22-30 24 Journal of Medicine and Biomedical Research medical non-maleficence could be defined as 1. The action itself (independent of its con- not imposing risks of harm as well as not sequences) must not be intrinsically inflicting actual harm.5 Veatch explains wrong (it must be morally good or at least further that it is the responsibility and duty of morally neutral). physicians (and based on the fiduciary 2. The agent must intend only the good effect relationship between physician and patient) and not the bad effect. The bad effect can to keep patients away from harm.6 Mason and be foreseen, tolerated and permitted but McCall Smith also indicated, in line with must not be intended; it is therefore Veatch, that based on their ability and allowed but not sought. knowledge, physicians must not engage in 3. The bad effect must not be a means to the medical procedures that may be harmful to end of bringing about good effect, that is, their patients.7 This is because, and based on, the good effect must be achieved directly the obligation of non-maleficence, the by the action and not by the way of the responsibility of physicians is to maximise bad effect. health and not to inflict harm. 4. The good result must outweigh the evil In real life situations physicians do inflict permitted, that is, there must be propor- harm on patients but generally for the purpose tionality or favourable balance between of achieving some kind of good. According to the good and bad affects of the action.9 Beauchamp and Childress, a harm we inflict such as a surgical wound may be negligible Beauchamp and Childress explained or trivial yet necessary to prevent a major further that some ethicists currently harm such as death.8 emphasise some of these conditions while Infliction of harm (that is, negligible harm) they downplay others. However, traditional purposed at arresting harm for the purpose of moralists still require that all conditions realising good does not constitute a moral should and must be met before double effect dilemma. This is because negligible harm is treatments may be justified. It is important to usually inflicted by physicians based on state that the conditions indicated for the detriment-benefit analysis in favour of justification of double effect treatments have patients. However, infliction of harm is not not eliminated the moral dilemma associated always negligible. Sometimes, and increasingly with the principle, as it pertains to the regularly, physicians inflict fatal harm with physician-patient relationship and the the use of double effect medications in what obligation of non-maleficence. seems to be in the patient’s interest as well as to his/her benefit. The moral dilemma is this: MORAL DILEMMA could the infliction of fatal harm that breaches In order to address the question raised, that the obligation of non-maleficence ever be in is, if the infliction of fatal harm could ever be the interest and benefit of patients? in the interest of the patient, it is appropriate The principle of double effect attempts to and for proper comprehension to use prepared differentiate intended and non-intended cases. This situates the moral dilemma with effects of an action. The intended effect is good which physicians are faced in real life and primary; however, associated with the circumstances. intended effect is the necessary but bad and unintended (secondary) effect. According to Case one Beauchamp and Childress, the principle of Okeke suffered from advanced and terminal double effect must satisfy certain conditions skin cancer, which had resulted in extensive for it to be morally justifiable, and these destruction of his body. He was constantly in conditions are: © CMS UNIBEN JMBR 2005; 4(1): 22-30 Obligation of non-maleficence: moral dilemma in physician-patient relationship 25 acute pain. If his physicians continued with dignity. Dignity is an integral part of all the current and standard line of treatment, he that must be retained at any point of would live for about a year and probably our existence, even at the moment of death. more, but all the time he would be in acute However, it is argued on the other side of and unrelenting pain. However, and to relieve the divide that physicians must at all times Okeke of pain and suffering, his physicians adhere to the code of medical ethics not to (based on Okeke’s ) decided to give inflict harm, that is, the obligation of non- doses of strong pain killers that had the maleficence. Based on Kant’s duty ethics, it is unintended effect (principle of double effect) argued that what is good is good in itself, since of shortening Okeke’s life span by about six good is without qualification.13 Perhaps, this months. Harm inflicted on Okeke (though argument could be pursued further to state unintended) seemed to contravene the that what is good (if it is really good and good obligation of non-maleficence, which was in itself) cannot and is not capable of indicated in the Hippocratic Oath (and other producing evil, except if the good was amendments and declarations) that: “I will corrupted, in which case it was not really good give no deadly medicine to anyone if asked, in the first instance. In other words, it is wrong nor suggest any such counsels.” Herein lies to inflict harm (even if unintended) whatever the moral dilemma associated with double the reason(s) for the primary and initial effects medical treatments (such as Okeke’s). intension. This is because what is good is The argument usually made in favour of unconditionally good, hence, action done physicians when they help to relieve pain and from duty has its moral worth, not from the suffering with double effect drugs that hasten results it attains or seeks to attain, but from a death is that it is the physician’s obligation to formal principle of doing one’s duty whatever alleviate pain and suffering. Patients (and that duty may be.14 indeed everyone) have the right not to suffer The duty and responsibility physicians when it can be avoided. According to Cassell, owe to patients and society is to do well it was the responsibility of physicians to (beneficence) and not to inflict harm manage pain and suffering of terminally ill (maleficence). Ironically, could patients.10 Liebeskind and Melzack posit also be used the other way round to support further that by any reasonable code, freedom the principle of double effect (infliction of from pain should be a basic human right, harm) if one focused on just duty or act and limited only by our knowledge to achieve it.11 ignored the consequences in line with Pellegrino indicates that relief of pain deontological ethical theories. This is because should not generate much moral debate, (and according to Kant) our actions have arguing that if a physician is unable to moral worth in themselves, in which case it achieve cure he should at least be able to would seem that only physicians’ intended relieve suffering.12 The inference is that it is actions should be morally evaluated in double unfortunate, if in the physician’s efforts to effect treatments and the unintended alleviate pain and suffering, some kind of consequence (e.g., hastened death) should be harm (even if fatal and unintended) may be ignored as of no moral consequence or even inflicted on patients. Physicians cannot, relevance. therefore, be held morally responsible as their Christian moralists urged strict physicians first line of duty to patients is to relieve pain to adhere to the obligation of non-maleficence and suffering. Perhaps it should also be added based on their perception of freedom. that double effect treatments (as in the case of According to this perception, man does not Okeke) do not just relieve pain but also enable have the freedom to decide when to return back patients die (even if death was hastened) in to his creator, as no one (neither physician © CMS UNIBEN JMBR 2005; 4(1): 22-30 26 Journal of Medicine and Biomedical Research nor patient) ought to play God.15 Hence, it was requested that his physicians withdraw the morally wrong for any human to decide to feeding tubes and other life support equipment embrace death, or for anyone to assist so that he could be given a befitting burial in someone else in embracing death when God line with African burial rites. These very has not occasioned or determined it. They important rites cannot be undertaken while therefore argued in addition that human life he remains on life support. After the is sacred and must not be terminated, that physicians reviewed Bode’s case, they obliged pain and suffering are not enough reasons for the request of his family members and anyone to play the role of the creator.16 Based withdrew the life support equipment and he on Christian theology, meaning could be died quietly. The moral question is: Did Bode’s derived from pain and suffering, as suffering physicians breach the obligation of non- gives man the opportunity to participate in the maleficence? Surrogate decision-making, as suffering of Christ.17 However, eastern was the case in Bode’s situation, or advance theological perspectives (Buddhism, Confu- directives such as a living will, if Bode had cianism, Hinduism, etc) are not in agreement made his decision known while he was with the views expressed by most Christian healthy, do not change the moral question moralists. They support and encourage inherent in withholding and withdrawing life physicians to relieve pain and suffering by support fluids and equipment from PVS whatever means, even if such medications patients. have the unintended effect of hastening death. What is crucial in responding to any In most traditional African , pain and alleged breach of the obligation of non- suffering are to be stoically endured to the maleficence (as in Bode’s case) should start very end. This may be connected with the from the concept of personhood in relation to strong in reincarnation, ancestral PVS patients. Persons have certain values, worships and second burial rites. Anyone who rights and privileges by the very nature of their hastens his/her death, or gives consent for his/ personhood. These values, rights and her death to be hastened, is not entitled to privileges are not usually associated with second burial rites and would consequently non-human beings such as animals. Hence, not be allowed into the ancestral realm. in analysing the concept of person, Edge and Grooves asked, “What types of beings can be Case two thought of as humans.”18 In response, Fletcher Bode, a 50-year-old truck driver, was involved and Feinberg provided an answer as to what in a near fatal accident, and although Bode they thought were the criteria that qualify a survived, his brain artery was ruptured. Bode person as a bearer of rights, which are: was taken to a teaching hospital where he (a) Possession of certain beliefs, values and underwent unsuccessful surgery. He intuitive awareness. eventually slipped into coma and persistent (b) One for whom something could be in his/ vegetative state (PVS). Bode’s family members her interest. consented to gastronomy for him. PVS (c) Possession of the concept of time, that is, patients could survive on life support of past, present and future. equipment for many years without hope of (d) Ability for social interactions with regaining consciousness. After a few days, others.19 20 Bode’s family members thought it was senseless for their loved one to remain in this In other words, when these vital criteria state. According to one of his family members, are no longer present in humans, they do not he was neither alive nor dead. Hence, they have rights and privileges usually associated

© CMS UNIBEN JMBR 2005; 4(1): 22-30 Obligation of non-maleficence: moral dilemma in physician-patient relationship 27 with persons; in which case physicians may be made available. According to Pope Pius XII, not be considered to have breached the obli- life may be prolonged with the use of ordi- gation of non-maleficence when they either nary care, subject to the circumstances of per- withhold or withdraw life support from PVS sons, places, time and culture. He explained patients. However, it is not in dispute or in further that ordinary health care should not contention that the physician has inflicted constitute grave burden to self or another. harm, whether compassionate or unintended While extraordinary health care, which may harms. It contravenes the International Code involve intravenous fluids, nasogastric of Medical Ethics, which states that “... a feedings, etc, for PVS patients may be regarded physician must always bear in mind the as optional, ordinary care may be regarded as obligation of preserving human life.” Moral obligatory. It would seem that extraordinary dilemma once again surfaces in physician- care begins where ordinary care has become patient relationship. useless and of no benefit. It seems, however, Efforts at resolving the moral dilemma in that the demarcation of ordinary care from withholding and withdrawing life support for extraordinary does not really resolve the PVS patients may be found in the definition moral dilemma inherent in the physician’s of death. Death may be defined from two obligation of non-maleficence in physician- perspectives: brain stem death and biological patient relationship, as what constitutes death. Brain death may be defined as a extraordinary care still remains unclear. For condition of unreceptivity and unrespon- instance, what may constitute extraordinary siveness, no movement or breathing, no care in developing countries may be regarded reflexes and flat EEG of confirmatory value.21 as ordinary care in developed countries. However, brain dead patients could be sustained on life support equipment, such as Case three a ventilator, feeding tubes, IV fluids, for years. Omole, seven days old, with extensive In which case biological organs remain physical deformities coupled with severe functional in so far as life supports remain in mental retardation and other health place and not withdrawn, but the patient complications was born to Mr. and Mrs. would never regain consciousness. The Kimba. The couple had no formal education moment artificial life support equipment is and were casual factory workers who earned removed the patient dies biologically. In other about N20,000 a month (about US$150) with words, biological death is when bodily organs which they sustained themselves and their cease to function. It means one could lose three children (besides Omole) aged five, intuitive awareness in its entirety (brain seven and nine years. According to Omole’s death) and yet retain some sort of existence physicians, if he was kept on special diet and that could be sustained artificially. It is the given monitored health care, all the while he inability to definitely resolve the concept of must remain in hospital, he would probably death that gears some physicians to resort to have lived to his fifth birthday but not more. extraordinary care while others do not and the The Kimbas would be required to pay about moral dilemma remains. What is to be done? N15,000 a month (about US$115) for Omole’s To resolve the question, it is mandatory upkeep and health care (Nigeria and indeed for one to demarcate where ordinary care ends most African countries have no national and when extraordinary care begins. Perhaps health insurance schemes). If Omole must live this would assist physicians to arrive at to see his 5th birthday, the options open to decisions regarding withholding and with- the Kimbas are: (a) sustain Omole in hospital, drawing life support. Loosely defined, ordi- in which case their other children must have nary health care has to be beneficial and must © CMS UNIBEN JMBR 2005; 4(1): 22-30 28 Journal of Medicine and Biomedical Research to drop out of school, move to a one-bedroom be in danger from malnutrition. The physicians apartment and considerably reduce the qual- may even stretch their arguments further, that ity and quantity of their diet; (b) request that it is morally wrong for Omole’s siblings to bear the physicians allow Omole to die since (i) the consequences of their parents’ decision Omole could never really live a normal life, to prolong Omole’s life, and if anyone must and (ii) his brief existence would only bring bear the consequences it should be the couple more grief and distress for everyone, that is, alone and not their children (Omole’s to himself and family members. The Kimbas siblings). Their children’s interests should not decided to take option B, which they be undermined if they decided to bear the communicated to Omole’s physicians. The consequences of prolonging Omole’s life, and physicians consented to his parents’ request, since it seemed that nothing could be done medication was discontinued and Omole died without undermining the interests of Omole’s two days later. Could Omole’s physicians be siblings, then Omole should be allowed to die said to have breached the obligation of non- in order to protect the interests of the other maleficence? children. Consequently, the physicians may Attempts to make a moral judgment of the have concluded that they acted justly and physicians’ role in Omole’s death should take morally under the circumstances. However, into account the concept of justice based on it is not in doubt that Omole’s physicians utilitarian and Kantian ethics. From a Kantian inflicted harm, even if on compassionate perspective, an action is morally evaluated to grounds, hence, the moral dilemma remains. be just if approval of that action could be universalised for everyone.22 While utilitar- CONCLUSION ian ethics focuses on the greatest happiness Efforts at resolving the moral conflict or for the greatest number in evaluating moral dilemma associated with PVS patients must and just actions, the idea of justice in tradi- be accompanied with conscious efforts at tional, and to a great extent contemporary, resolving the lacuna that exist between brain Africa is essentially interpersonal and social death and biological death. Without bridging 23 with a basis in human welfare. In the light this lacuna, the moral dilemma associated of these definitions, was Omole justly treated? with withholding and withdrawing artificial Omole’s physicians may have acquiesced to life support for PVS patients would always Omole’s parents because it was the just thing remain contentious as far as the physician’s to do based on utilitarian ethics, which pro- obligation of non-maleficence remains total motes the interest of the majority over that of and binding on all physicians under all the minority; in this case, the welfare of circumstances, that he shall respect human Omole’s parents and siblings over Omole’s life and studiously avoid doing it harm.24 welfare. Perhaps it should be added that even if the The physicians’ position and judgment developed world with functional and viable may be further strengthened based on the low health insurance schemes could afford almost quality of Omole’s life. Again, in line with classical utilitarianism, they may have indefinitely to sustain PVS patients on life evaluated that it would be morally wrong for support, it would be morally wrong for the Kimbas to sustain Omole’s interest (an physicians in developing countries, where individual who would with luck on his side health resources are scarce, to embark on ex- probably live to see his fifth birthday) over traordinary healthcare, when the same those of five persons. This is because, for resources could be more beneficially used for Omole’s sake, his siblings would not only ordinary care in line with cost-benefit have to drop out of school; their lives may also analysis. This means that physicians in © CMS UNIBEN JMBR 2005; 4(1): 22-30 Obligation of non-maleficence: moral dilemma in physician-patient relationship 29 developing countries are confronted with 5. Beauchamp T and Childress J. Principles of harsher forms of moral dilemmas than their Biomedical Ethics. Oxford: Oxford Univer- counterparts in the developed countries if sity Press, 1989; 125. they must adhere in totality to the obligation 6. Veatch R. Case Studies in Medical Ethics. of non-maleficence. Massachusetts: Havard University Press, On the use of double effect medications 1977; 357–358. in relieving pain and suffering, it might be 7. Mason JK and Smith M. Law and Medical necessary to know the innate quality of Ethics. London: Butterworths Publishers, human life in general and particularly the 1983: 257. quality of human life at the moment of death. 8. Beauchamp T and Childress J. Principles of This is because the breach of the obligation Biomedical Ethics. Oxford: Oxford Univer- of non-maleficence is sometimes based on the sity Press, 1989; 122. concept of dignity and identity, which must 9. Beauchamp T and Childress J. Principles of be retained even at the moment of death since Biomedical Ethics. Oxford: Oxford Univer- sity Press, 1989: 128. mental suffering often accompanies physical pain in terminal illnesses such as cancer.25 10. Cassell E. The nature of suffering and the goals According to Weisman and Hackett, it is the of medicine. N Eng J Med 1982; 306(11): 639. responsibility of physicians to help the dying 11. Liebeskind J and Melack R. The International patient preserve his/her identity and dignity Pain Foundation: meeting a need for educa- tion in pain management. J Pain Symp Mgt as a unique individual despite the disease, or, 1983; 3(3): 132. in some cases, because of it.26 But the recurring question remains: could a physician 12. Pellegrino E. The clinical ethics of pain man- agement in the terminally ill. Hospital For- be held morally, if not legally, liable when in mulary 1982; 17(ii): 143. the course of duty he breaches the obligation 13. Kant I. Groundwork of the Metaphysics of of non-maleficence? It seems the moral Morals. 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Jonsen A. Do no harm. In: Beauchamp T and 19. Fletcher T. The problem of personhood. In: Childress J (Eds.). Principles of Biomedical Beauchamp and Childress (Eds.). Contem- Ethics. Oxford: Oxford University Press, porary Issues in . Wadsworth Pub- 1989; 126. lications, 1972; 1–4. 4. Necessity and sufficiency of expert evidence 20. Feinberg J. Indicators of Personhood. Hast- and extent of risks of proposed treatment. ings Report Center, 1982. American Law Report 1977; 1084. 21. Ad hoc Harvard Committee on Definition

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