TheNature of the Doctor-Patient Relaticfrtship Health Care Principles Through the Phenomenology of Relationships with Patients----~---. SpringerBriefs in Ethics
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Pierre Mallia
The Nature of the Doctor-Patient Relationship
Health Care Principles Through the Phenomenology of Relationships with Patients
~ Springer Pierre Mallia Medical School University of Malta Msida Malta
ISSN 2211-8101 ISSN 2211-811X (electronic) ISBN 978-94-007-4938-2 ISBN 978-94-007-4939-9 (eBook) DOl 10.1007/978-94-007-4939-9 Springer Dordrecht Heidelberg New York London
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Springer is part of Springer Science+Business Media (www.springer.com) Contents
1 Introduction......
2 Critical Overview of PrincipIist Theories ...... 7 2.1 The 'Four-Principles' Approach ...... 7 2.1.1 Theoretical Basis ...... 9 2.1.2 The Paradigm Case...... 13 2.1.3 The Doctor-Patient Relationship...... 15 2.2 Robert Veatch's Model of Lexical Ordering...... 18 2.3 The Principle of Permission...... 21
3 Phenomenological Roots of Principles...... 27 3.1 The Nature of the Physician-Patient Relationship...... 29 3.1.1 Communication...... 29 3.1.2 Goals of Medicine...... 31 3.1.3 The 'Care' in Health Care...... 32 3.1.4 The Special Bond...... 34 3.2 The Principle of Beneficence and Virtue ...... 35 3.3 Nonmaleficence...... 37 3.3.1 Patient Authority or Trust ...... 38 3.3.2 Epistemology...... 40 3.4 Respect for Autonomy...... 42 3.4.1 A Historical and Epistemological Perspective of Autonomy ...... 43 . 3.4.2 A Cultural Appraisal...... 46 3.5 The Dual Nature of Justice...... 50 3.5.1 The Justice of Society...... 50 3.5.2 Justice in Health-Care...... 52
v vi Contents
4 Principles as a Consequence of the Relationship ...... 55 4.1 Need for Grounding Principles in the Relationship ...... 55 4.2 Defining the Ontological Entities...... 57 4.3 The Physician as an Entity...... 59 4.3.1 Levelling-Down of Medical Relationships...... 60 4.3.2 Being as Understanding...... 62 4.4 The Patient as Entity: Potential for being Truly-Autonomous. . . 65 4.4.1 Dimensions of the Illness Experience ...... 66 4.4.2 True Autonomy and the "Authenticity" of the Relationship ...... 68 4.5 Hermeneutics of the Relationship ...... 71 4.6 Phenomenology of the Clinical Encounter ...... 73
5 Conclusion...... 79 Chapter 1 Introduction
A warmth filled the room, a trust, a plea to help, a promise to try. It was what medicine might be ... And I realised that the reason the House Slurpers tolerated the Fat Man's bizarre ways was that he was a terrific doc. The mirror image of Putze!.' Economic, social, legal, and political factors have combined in recent years to effect major changes in medical practice and health care policy.2 Concern for patient rights and patient autonomy have transfonued the practice of medicine which is rooted in the doctor-patient relationship.3 A change took place between 1965 and 1970 which put into question what this relationship is supposed to accomplish. Prior to this date medical ethics was generally thought of do's and don'ts for the physician and the primary principle was to benefit the patient, giving authority to the physician to coerce, deceive and 'do things impermissible' in other human relationships. After that date the patient's benefit was not the only moral principle but of special importance was the principle of autonomy, often thought of as the right to self-determination.4 Medical ethics was no longer the field of physicians but also of philosophers, theologians, people involved in health care and the layman. Robert Veatch considers it a mistake to consider medical ethics to be the same as ethics of the physician.s He suggests that the term patient is not a good one6 as it implies suffering and passivity within the relationship. Many patients, he says, can
I Shem S., The House of God, Black Swan Books, 1992, p. 89. Brody B.A., Holleman W.L., "Ethics in Family Practice", in Textbook of Family Practice, 5th edition, ed. Rake!., Saunders, 1995, p. 153. Veatch R.M. The Patiel1l-Physician Relation-The Patient as Partner, Part 2, Indiana 1991, p. I Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship.: the Need for a Better Linkage", in Principles (!f Health Care Ethics, ed. Oillon, Wiley 1994, p. 362 Cassell E.J., The Nature of Sl(/fering and the Goals of Medicine, Oxford 1991, p. 66. 4 Brody, H. "The Physician/Patient Relationship.", in Medical Ethics, ed. Veatch R.M., Jones and Bartlett 1989, p. 67. 5 Veatch R.M. The Patient-Physician Relation, p. I. 6 Ibid., p. 2.
P. Mallia, The Nature of the Doctor-Patient Relationship, SpringerBriefs in Ethics, DOl: 10.1007/978-94-007-4939-9_1, © The Author(s) 2013 2 Introduction no longer be passive especially in present times when most are healthy and visit the medical profession for check-ups, immunisations and other services. Other patients have chronic illnesses such as heart disease and cancer. But none are really sick so as not to be able to participate in their treatment.7 He views the relationship as a contract between the two in which both are partners. 8 In contrast Edmund Pellegrino, advocate for virtue ethics, argues that the fact of illness and the fact that the physician has the knowledge and the trust of the patient who has come to him for help puts the physician in a superior position.9 He thus affirms that some form of reconciliation between virtues and principles is in order. IO Central to the arguments of the physician-patient relationship and to moral choices in health care in general are the four principles put into a theoretical framework by Tom Beauchamp and James ChildresslI: Beneficence (the obliga tion to provide benefits and balance benefits against risks), Non-Maleficence (the obligation to avoid the causation of harm), Respect for autonomy (the obligation to respect the decision-making capacities of autonomous persons), and Justice (obligations of fairness in the distribution of benefits and riskS).I2 Rules for health care ethics can be formulated by reference to these principles together with other moral considerations, although these rules cannot be straightforwardly deduced from such principles because additional specification and interpretation would be neededY Examples of such rules are truth-telling, confidentiality, privacy and fidelity, as well as more specific guidelines to current moral problems in bioethics as physician-assisted suicide, withdrawal of life support systems etc. 14 Clouser and Gert first referred to these four principles as 'Principlism' in a critique they gave of Beauchamp and Childress' theory. IS Although acknowledging that it was used in a pejorative way the authors continue to use it when referring to various principle oriented approaches. I6 Albert Jonson, in the forward to a book of essays criticising principlism 17 notes that "The Oxford English Dictionary gives us one more definition: "ism," it states, "forms the name of a system of theory or practice" as in Protestantism, Buddhism, Platonism, and Toryism" suggesting that principlism in bioethics is somehow a
Idem. 8 Ibid., p. 3. 9 Pellegrino E.D., "Toward a Virtue Based Normative Ethics for the Health Profession", in Kenn. Inst. of Ethics J., Vol.S, No.3, p. 267. 10 Ibid., p. 274. II Beauchamp. T.L., Childress I.F., Principles of Biomedical Ethics, Oxford 1979. 12 Beauchamp. T.L., "The 'Four-principles' Approach", in Principles ofHealth Care Ethics, p. 3. 13 Idem. 14 Idem.
IS Clouser K.D., Gert B., "A Critique of Principlism", in J. of Medicine and Philosophy 15, p.219-236. 16 Childress I.F.,"Principles-Oriented Bioethics. An Analysis and Assessment from within", in A Matter of Principles?, ed. DuBose et ai., Trinity Press International 1994, p. 73. 17 Ionsen A.R., A Matter of Principles? p. XV. Introduction 3 system of theory and practice with principles as its creed and having devoted adherents. Many, he continues, arcastically refer to the "Georgetown mantra". The Belmont Report 18 promulgated the principlist statement. Tom Beauchamp parti cipated as a consultant and later James Childress reworked the three principles into four; separating Beneficence and Non-Maleficence. 19 It is argued that the main faults with the four-principle approach is that they provide no direction, whereas the theories of Veatch and Engelhardt point toward autonomy, the main concern for non-acceptance of principle-oriented theories. Engelhardt indeed moves from autonomy to 'permission' which allows any moral decision to be decided upon between the two parties concerned?O One opponent of Principlism admits though that "the principles of respect for autonomy, non-maleficence, beneficence and justice are so fundamental that they cannot be contested,,?l Edmond Pellegrino, pioneer in virtue-based theory, notes that, "the framework of prima facie principles has unquestionably advanced the quality of ethical decision-making at the bedside. Its utility must not be lost in the current zeal for replacing it with alternative approaches which have their own inherent difficulties", and that "it would be a retrogressive step, indeed, to drop the principles and return to some simplistic conviction of the sufficiency of the Hip pocratic Oath to which many doctors subscribe.,,22 Pellegrino recommends retaining principles but supplementing them more fully by in sights from other ethical theories and importantly ground principlism more fully in the phenomena of the doctor-patient relationship.23 This would be the tentative, if not presumptuous aim of this book. After examining the phenomenology of each principle an proposal is made to insert them within the realm of the phenomenology of the health care relationship itself. At the same time principlism is supplemented by tradition24 to give a theoretical basis. Far from subscribing to a form of relative ethics, it grounds itself in the ever-growing tradition of medical thought but at the same time respects values, cultures and religious beliefs. The phenomenology of the relationship lends itself to a patient oriented thought process, which enters the phenomenology of the patient and the hermeneutic of the situation. The four principles continue to be the
18 A report to write "ethical principles" for the National Commission for the Protection of Human Subjects of Biomedical and Behavioural Research, following the 1974 National Research Act (Public Law 93-348). 19 Ibid., p. XV 20 Engelhardt H.T., Jr., Foundatiolls of Bioethics, 1994. 21 Wulff H.R. Against the Four Principles: a Nordic View, in Principles of Health Care, p.277-286. 22 Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship.: the Need for a Better Linkage", p. 360-362. 23 Ibid., p. 362. 24 The term 'tradition' is used as defined by MacIntyre. It incorporates culture, religions, systems of Justice and also professions. MacIntyre A. After Virtue Duckworth, Indiana. University of Notre Dame Press, 1984 p. 204-225. 4 Introduction
'modus operandi' of the whole framework. No one principle loses its weight, least of all respect for autonomy but the direction given guarantees the ethos of medical practice and removes the danger of medicine becoming the hired hand of the patient or subject to inappropriate demands by third parties (insurance companies, employers, state, etc.)25 Least of all it prevents the goals of medicine become subject to socially induced, or social construct, theories. Whilst society can view medicine and medical technologies in terms of rights and in terms of having to abide by a secular or traditional moral theory, medicine is interested in the health care it can provide. Justice for scarce resources, respect for autonomy, beneficence and non-maleficence occur in a micro-level within the physician-patient relationship and within a macro-level at the medicine/society interface. But whilst the phenomenon of the first is to give care and advise on health; the latter is one in which medicine has somewhat to settle within a framework worked out by society (whilst at the same time the autonomy of the profession remaining respected). It moves within the economical, social, legal and political constraints, having to allocate scarce resources, fight over rights of confidentiality with third parties as are those with insurance and employment, especially over the new advances such as genetic screening and engineering, and resist attempts to make doctors do what the state orders and avoid tragedies that happened to Nazi doctors. Whilst the state may make laws, medicine needs ethics. Unfortunately in the United States the breach between law and ethics has become so wide that they are now two separate entities?6 O'Rourke laments the 25th anniversary of the Roe vs. Wade abortion case which gave precedent to the killing of "over 35 million children" since that time. Resulting from this case is a growing erosion of worthwhile ethical process?? Medical knowledge can contribute to protect society from harming itself. This knowledge needs to overcome forces of autonomy; over prescription of antibiotic drugs for example will cause harm to the individual's intestinal flora and cause resistant strains which eventually find themselves in other people causing antibiotic-resistant infections.28 A system of Justice has to liaison between the medical community and society. On the one hand more respect for traditions will help the medical community adapt their ethics to cultures and religions from which these same traditions may arise; on the other hand rules formulated with the knowledge obtained from medical advances will allow resources to go to the right quarters. Gate-keeping need not be care-free, but at the same time abuses need be curbed as for example with the
25 Brody B., Holleman WALL "Ethics in Family Practice" in Textbook of Family Practice, p. 153. 26 Q'Rourke K. (Editorial) in, Health Care Ethics USA Vol. 6 No.l, 1998. 27 Idem.
28 Norris P.F. "Antibiotic Prescribing: Ethical Concerns", in, Health Care Ethics USA Vol. 6 No.l, 1998, p. 4-5. Introduction 5 supply of Emergency Medical Services (EMS).29 Similarly medical technologies like cloning and IVF need not be offered blindly to all who request them, but one may easily point out the naturalistic fallacy committed if one says that repro ductive technologies should not be used because they are not 'natural', or because they bypass the natural process of human sexuality (which, considering the couple would have been trying all along, if after all not a convincing argument). If in nature babies are fertilized through intercourse, it would be false to state that as a consequence it should always be that way. After all disease is a natural conse quence, and so is survival of the fittest. Should we not treat it, even at the cost of many diseases that would otherwise have been eliminated by reproductive age continue to penetrate society? This means that rules must cover somewhat the symbiotic relationship that exists between the profession and society. In deciding on these issues rules may have to be found which, whilst protecting autonomy, confidentiality and the interests of the patients, at the same time do no harm to hospital personnel and other patients, and to society at large. Principles will help in determining these rules but simply balancing and specifying may not be enough unless one has a general direction founded in the phenomenology of medicine-that of providing help and good, safe public health. Again one falls on whether the value of virtue is pertinent here. Heraclitus said that Justice is conflict. Of course if one is seeking justice, one does not have it yet, and therefore there is a conflict between two sides. Not so much a conflict as decreed in a court of law, although this is also the case, but also a seeking of justice, as we have seen above, of whether we should help the poor, or whether it is right or wrong to have children without sexual contact. Clearly there will be some who will argue in favour of the latter or argue why they should help the poor at all. The outcome of the U.S. civil war on slavery may have been won materially, but its true victory was in the minds of men, that using people as slaves is wrong. It was a question of the value of all men, irrespective of whether we like their race or not. This question of value is one which is asked by a moral agent, by a person who sees the wrong. To convince others of this wrong necessitates a premise that it can be seen and be perceived to be wrong. This is what virtue is about. It goes beyond and comes perhaps a priori to the principle, on which others then can abide by. It certainly took a virtuous person to speak out against slavery; someone who empathized with the other race and took the plunge and the risk of speaking to his fellow brothers. When doctors act as patient advocates, arguing for a biopsychosocial approach, and therefore including also cosmetic surgeries in a national health scheme; or when they see reproductive technologies not merely as an extended service, a benefit, if you may, of science to medicine, but see that couples have a right to this form of therapy, then it is also empathy (although we shall speak certainly of external goods-the making of profit as a motive force) which one must appeal to. Virtuous people will act on
29 Trotter G., "Responding to Unreasonable Requests for EMS". in Health Care Ethics USA Vol. 5 No.3 1997, p. 4-5. 6 Introduction their behalf, as indeed the views on homosexuality and other more liberal issues necessitated a natural convergence. Indeed, since justice is conflict, we may always face the conflicts of liberal society with the more conservative and reli gious. But religion is perhaps something to be chosen at will as well and certainly the act of tolerance and acceptance of plurality is a virtue being sought in today's 3o theological environment . It is only in a utopian world where all come to believe in the same thing-and perhaps it would not be utopia at all, for it removes our diversity and cultural differences. The key is perhaps not trying to convert but converting to acceptance and faith in the freedom of man who can make a choice and give up one way for another if he or she feels it is more beneficial to his or her well being. In short, we need to study the phenomena of the doctor-patient and health-care relationship and understand which principles conform to these phenomena and which are manifestations, outcomes, of a priori phenomena. This will help ground principles in the ontology of the doctor-patient relationship and henceforth understand how moral problems can be resolved in this context.
30 Gambon, E. Trinita'. Modello Sociale, Citta Nuova Editrice, Rome, 1999 Chapter 2 Critical Overview of PrincipIist Theories
In this chapter three approaches to principles are reviewed. Firstly the Four Principle approach as described by Tom Beauchamp and James Childress.' Secondly Robert Veatch's theory of medical ethics2 based on a contract relation and lexical ordering of principles giving priority to autonomy. Finally Engel hardt's Principle of permission,3 amending his first edition which was based on a two-principle approach of beneficence and autonomy.4 Clearly the authors of these three models are 'principlists' themselves and the scope here is to go beyond simple principles. One however, must start with understanding the implications of these models and perhaps why they feel that virtue may not be that necessary. Common to all three positions is the philosophical and non-clinical background of the authors. All argue from a liberal point of view and indeed view beneficence, or rather, statements like 'for the good of the patient', as paternalistic. At least, my reading of them shows that this is where they are coming from. Although Engelhardt has a medical background as well, his carrier is academic philosophy; and it is perhaps significant that of the three theories he is the one to take a warmer view to character, which led him to be more reductionist in the number of prin ciples. He is left with the two main contentions-that of doing good, and that of justice, which aims to do good to society and the patient as well.
2.1 The 'Four-Principles' Approach
The idea of moral principles in medical ethics has been around for at least two centuries. McCullough5 refers to John Gregory (1724-1773) who wrote about the
I Beauchamp. T.L., Childress J.F., Principles of Biomedical Ethics, 1989. 2 Veatch R., A Theory of Biomedical Ethics, New York: Basic Books, 1981. 3 Engelhardt H.T., Jr., Foundations of Biomedical Ethics, 1994. 4 Engelhardt H.T., Jr., Foundations of Biomedical Ethics, 1986. 5 McCullough L.B., "Bioethics in the Twenty-First Century: Why We Should Pay Attention to Eighteenth-Century Medical Ethics", in Kenll. Inst. of Ethics l., Vol. 6, No. 4, pp. 329-333.
P. Mallia, The Nature of the Doctor-Patient Relationship, SpringerBriefs in Ethics, 7 DOl: 10.1007/978-94-007-4939-9_2, © The Author(s) 2013 8 2 Critical Overview of Principlist Theories duties and qualification of a physician using David Hume's moral philosophy of the Scottish Enlightenment period.6 Beauchamp7 notes that it was the British physician Thomas Percival who furnished the first well-shaped doctrine of health care ethics which also served for the formulation of the American Medical Association's first code of ethics.8 He notes that Percival's beneficence-based viewpoints became the creed of the medical profession. However, Beauchamp states that "[iJn recent years ... the idea has emerged-largely from writings in law and philosophy-that the proper model of the physician's moral responsibility should be understood less in terms of traditional ideals of medical benefit, and more in terms of the rights of patients, including autonomy-based rights to truthfulness, confidentiality, privacy, disclosure and consent, as well as welfare rights in claims of justice".9 Beauchamp and Childress argue that the principles they identify "-respect for autonomy, nonmaleficence, beneficence (including utility or proportionality), and justice, along with such derivative principles or rules of veracity, fidelity, privacy, and confidentiality-are only prima facie binding. None can be considered absolute".1O The justification for the choice of these four principles is in part historical in the fact that some are deeply embedded in medical tradition, and in part because they point to an important part of morality-respect for autonomy which has traditionally been neglected. 11 The difference the authors ascribe to principles (by which they refer collectively to the four principles and rules) is that they are prima facie binding, meaning that one is obliged to respect them unless one comes into conflict with another. 12 In fact there have been three major interpretations of the weight of principles. They may be viewed as absolute, prima facie, or as relative maxims or rules of thumb. 13 Childress quotes Paul Ramsey as viewing principles as absolute and Joseph Fletcher in his "situation ethics" as viewing principles as rules of thumb. 14 This is very important in that being prima facie binding, "the moral agent has to justify departures from principles by showing that in the situation some other principles have more weight. However, the assignment of weight or priority depends on the situation rather than on the abstract, a priori ranking". 15
6 Ibid., p. 331. 7 Beauchamp. T.L., "The 'Four-principles' Approach", in Principles of Health Care Ethics, pp. 3-12. 8 Ibid., p. 5. 9 Idem. 10 Childress J.P. "Principles-Oriented Bioethics, An Analysis and Assessment From Within", in A Matter of Principles? p. 79. 11 Beauchamp. T.L., op.cit., p. 4. 12 Childress 1.P., op. Cit., p. 79. 13 Ibid., p. 78.
14 Ibid., pp. 78-79. 15 Idem. 2.1 The 'Four-Principles' Approach 9
2.1.1 Theoretical Basis
l6 Clouser and Gert still provide one of the strongest criticism of principles. 17 They lament a lack of any theoretical basis which principlism, somewhat misleadingly, tends to suggest. IS The utilitarian principle of John Stuart Mill and the principle of Justice of John Rawls are summaries of comprehensive and unified theories underneath them. 19 Rather, Clouser asserts that each principle functions more of a reminder that there is an ethical value the agent ought to consider. The principle does not tell the agent how to think. Receiving no guideline the agent then determines, interprets and gives his own weight to each principle. He asks where the principles come from, whether there is a priority and to what does one appeal when they conflict. "It looks as if each principle simply focuses on the key aspect of some leading theory of ethics: justice from Rawls, consequence from Mill, autonomy from Kant, and nonmaleficence from Gert. Thus they represent some historically important emphases, but without the underlying theories-and worse, without an adequate unifying theory to co-ordinate and integrate these separate, albeit essential, features of morality,,20 and
lilt is a kind of relativism espoused (perhaps unwittingly) by many books (usually anthologies) of bioethics. They parade before the reader a variety of "theories" of ethics Kantianism, deontology, utilitarianism, other forms of consequentialism, and the like and say, in effect, choose whichever of the competing theories, maxims, principles, or rules suits you for any particular case. Just take your choice! They each have ftaws which are always pointed out-but on balance, the authors seem to be saying, they are probably all equally goOd!21 After reading through the textbook by Beauchamp and Childress one will be more fully informed and appreciative of that principle and the different theories where relevant but when dealing with an actual problem one would find oneself confused.22 Clouser suggests common morality as a system23 in a theory developed with Bernard Gert24 which although suggesting a set of rules is not rule based but in
16 Clouser K.O., Gert B., "A Critique of Principlism", pp. 216-236. 17 Beauchamp. T.L., "The 'Four-principles' Approach", p. 8. 18 Clouser K.O., "Common Morality as an Alternative to Principlism", in Kel1ll. Inst. of Ethics J. Vol. 5, No. 3, p. 223. 19 Idem. 20 Ibid., p. 224. 21 Idem. 22 Ibid., p. 225. 23 Ibid., pp. 226-235. 24 Gert B., Morality: A New Justification of the Moral Rules, New York: Oxford University Press, 1988. 10 2 Critical Overview of Principlist Theories which the rules are understood only as functioning within that system.25 Their emphasis is thus on morality as a system.26 Beauchamp contends that Clouser and Gert's 'Impartial Rule Theory' does not fare any better when comparing their principles to their rules. He admits that their rules have more specific content and direction but only because they are one tier less abstract than principles?? Moreover, elsewhere he cites that although Gert and Clouser start with particular moral judgements about which one is certain and then abstract and formulate the relevant features to help decide the unclear case, this is precisely what he and Childress have supported since the first edition of their book.28 He compares a sample of rules they defend under principles with a directly related sample of basic moral rules defended by Gert and Clouser29:
Beauchamp and childress Gert and c10user 4 rules based on non maleficence 4 of the 10 basic rules I. Do not kill. I. Don't kill. 2. Do not cause pain. 2. Don't cause pain 3. Do not incapacitate 3. Don't disable 4. Do not deprive of goods 4. Don't deprive of pleasure
Their theories are similar and it is hard to find how the Impartial Rule Theory is any better.30 He and Childress have always readily admitted the shortcomings of principlism and that Gert and Clouser's criticism are important problems which, however, they themselves do not solve?1 Beauchamp and Childress, on the other hand, have sought to arrive to moral decisions by a process of 'balancing' and 'specification' . 'Balancing' fits best with a conception of principles as prima facie binding but potentially in conflict in particular cases. The third edition of 'Principles of Biomedical Ethics' (now in its sixth edition) attempted to reduce the intuitive assignment of weights to conflicting principles in a situation by a more formal procedure for resolving conflicts among principles. Specifically, if two prima facie principles come into conflict, several conditions need to be met before one can override the other.32
25 Clouser K.D., op. cit., p. 227. 26 Idem.
27 Beauchamp. T.L., "Principlism and Its Alleged Competitors", in Kenn. Inst. of Ethics J. Vol. 5, No. 3, pp. 186-187. 28 Beauchamp. T.L., "The 'Four-principles' Approach", p. 9. 29 Beauchamp. T.L. op. cit., pp. 187-188. 30 Beauchamp. T.L., "Principlism and Its Alleged Competitors", p. 190. 31 Beauchamp. T.L., "The 'Four-principles' Approach", p. 8. 32 Childress J.F. "Principles-Oriented Bioethics, An Analysis and Assessment From Within", in A Matter of Principles?, p. 81. 2.1 The 'Four-Principles' Approach 11
"Specification" is the attempt to give content to a principle involving speci fying the cases which fall under it. 33 Childress states that although their fourth edition of 'Principles of Biomedical Ethics' proposes that specification be tried first (as they were helped into seeing matters more clearly by the work of "specified principlism" by Richardson and DeGrazia34) he remains rather skep tical that it may serve as an exclusive model because moral conflict is inevitable within a moral universe?5 But the fact that both Beauchamp36 and Childress37 do not take the problem of an underlying theoretical basis seriously is cause for concern. Although principlism provides the framework38 it was intended to give, the substance for that framework needs more than just specification and balancing in particular cases. Although they provide useful slogans39 similar to the Golden Rule they "oversimplify moral reasoning" and have "no value in determining what is the morally right way to act". Although they have great "rhetoric value", the attempt to reduce morality to slogans undermines the complex albeit not difficult matter at arriving to moral solutions. Gert and Clouser expound a theory which is based on what an impartial person would respond to a given situation. Having four main components (moral rules, moral ideals, the morally relevant features of situations, and a detailed procedure of dealing with conflicts) it is not rule based but rules form only one component. Being superficially defined they find difficulty and confusion with some principles. In particular Justice "is the prime example of a principle functioning simply as a check list of moral concerns. It amounts to no more than saying that one should be concerned with matters of distribution; it recommends just or fair distribution without endorsing any particular account of justice or fairness" .40 The principle of Justice does not make distinction between what is morally required and what is morally encouraged. John Rawls makes this error in his theory of Justice when referring to the moral duty to obey laws and the moral ideal encouraging one to make just laws (which Rawls regards as a single duty) and this is carried into the Justice used in principlism41. This failure to distinguish between what is morally required and what is morally encouraged creates significant confusion in both the principle of autonomy and the principle of beneficence. In fact the principle of autonomy as stated by Beauchamp and Childress is: Autonomous action and
33 Ibid., p. 82. 34 DeGrazia D. "Moving Forward in Bioethical Theory: Theories, Cases, and Specified Principlism." In J. of Medicine and Philosophy 17(October); pp. 511-39. 35 Childress I.F., op.cit., p. 82. 36 Beauchamp. T.L., "Principlism and Its Alleged Competitors", in Kenn. Inst. of Ethics J. Vol. 5, No. 3, p. 190. 37 Childress I.F., op. cit., p. 75. 38 Idem.
39 Clouser K.D., Gert B., "Morality vs. Principlism", p. 260 40 Clouser K.D., Gert B., op.cit., p. 253. 41 Rawls I. A Theory of Justice Harvard University Press, 1971, p. 115. 12 2 Critical Overview of Principlist Theories choices should not be constrained by others. It simply is picking out one evil, the loss of freedom, and giving it a principle all to itself.42 The addition of 'autono mous' is what causes most problems as non-autonomous choices are not included. Thus one can over-ride what are deemed to be non-autonomous choices. If one deems that a patient's refusal is irrational, claiming therefore it is non-autonomous one may over-rule it. Conversely one may reason that although the choice is irrational, the patient is competent and therefore autonomous. Both can claim they are respecting the principle of autonomy and therefore the principle of autonomy may encourage one to act with unjustified paternalism depriving a person of freedom without adequate justification.43 Clouser and Gert also note that not distinguishing between 'protecting autonomy' and 'promoting autonomy' is dan gerous and makes it more difficult to solve moral problems.44 Not protecting (i.e. violating) autonomy is breaking a moral rule and thus requires adequate justifi cation. Not promoting autonomy is not following a moral ideal which does not require justification. Since Beauchamp and Childress say that the primary function of informed consent is to protect and promote individual autonomy, then one can not give informed consent without needing to adequately justify oneself.45
Thus principlism's centrepiece, 'the principle of autonomy', embodies a deep and dan gerous level of confusion. That confusion is created by unclarity as to what counts as autonomous actions and choices and the consequent blurring of a basic moral distinction between moral rules and moral ideals. The unnecessary introduction of the metaphysical concept of autonomy inevitably results in making it more difficult to think clearly about moral problems. The goal of moral philosophy is to clarify our moral thinking, not to introduce new and unnecessary complications. Clouser and Gert also complain about the lack of distinction between moral ideals and rules in the principle of beneficence. Beauchamp and Childress often refer to beneficence as a duty. This is not incorrect only because beneficence is a moral ideal; rather because it obscures the true meaning of duty which they (Clouser and Gert) attribute to the duty spelled out by one's profession.46 Thus specific duties determined by the profession are packed into a principle of "mis conceived" general duties and this is tantamount to substituting a slogan for substance.47 However, Beauchamp insists that in effect they are agreeing with Gert and Clouser on all substantive issues about what is morally required and that therefore they cannot be criticising their obligation of beneficence.48 Also Gert commits himself to beneficence when acknowledging that people do have a duty to help and
42 Clouser K.D., Gert B., "Morality vs. Principlism" p. 254. 43 Ibid., pp. 254-256. 44 Ibid., pp. 256-257. 45 Idem. 46 Ibid., pp. 258-259. 47 Ibid., p. 259. 48 Beauchamp. T.L., "Principlism and Its Alleged Competitors", p. 190. 2.1 The 'Four-Principles' Approach 13 that there are some duties that seem more general.49 Beauchamp is in fact confi dent in the method of specifying50 and especially the method of 'reflective equi librium' developed by John Rawls for the specification of principles,51 although Childress portents to remain somewhat skeptical because of the inevitability of moral conflict. Beauchamp contends that principlism starts from paradigms of what is morally proper and morally improper and then searches for principles that are consistent with these paradigms and consistent with each other.52
2.1.2 The Paradigm Case
Jonsen53 looks at principlism from its origins asking first why it came out and secondly how it came out to answer the important question of what a moral principle is and how it may be invoked in the clinical decision making of a moral process. He notes that in the 70s the new-born field of bioethics was primarily a scholarly interest without a method.54 Philosophers brought in their respective disciplines. But these had their respective problems. Thus utilitarianism conflicted with the traditional medical principle of beneficence.55 It was during the writing of the Belmont Report that the first three principles came into being56. This is treated further when discussing the phenomenology of principles in which their historical role is very relevant to the question 'Why these principles and not some others?' .57 What is relevant here is that in deliberating about which principles Jonsen and Stephen Toulmin noted they were doing Casuistry-reasoning which principles by discussing cases.58 "We noted that one task of the commission, the development of ethical principles to govern research, was peiformed at the end, 59 rather than the beginning, of the Commission's life, after it had proposed recommendations for many specific cases of research, such as that involving children, the incarcerated, and the mentally disabled" .60 Also, whilst casuistry is the art of building an argument and drawing conclusions from it by defining "topoi" (or 'topics') and
49 Ibid., p. 189. 50 Beauchamp. T.L., "The 'Four-principles' Approach", p. 10
51 Ibid., p. I!. 52 Beauchamp. TL, op. cit., p. 11. 53 Jonsen A.R., "Clinical Ethics and the Four Principles", pp. 13-30. 54 Ibid., p. 14 55 Idem.
56 Jonsen A.R., op.cit., p. 14. 57 Clouser K.D., "Common Morality as an Alternative to Principlism", p. 224. 58 Jonsen A.R., "Casuistry: An Alternative or Compliment to Principles?", in Kenll. Inst. (if Ethics J. Vo!. 5, No. 3, p. 239. 59 italics mine 60 Ibid., p. 239. 14 2 Critical Overview of Principlist Theories then defining the features within those topics, principlism is doing just that; each principle is a topic and to arrive at a moral conclusion one must build the details of the case within each topic.61 Thus "circumstances make the case". Therefore whilst casuistry defined principles, it may also be used in conjunction with principles to arrive at conclusions about cases. Principlism uses 'specifica tion' of each principle which Beauchamp acknowledges is doing casuistry.62 In my opinion it makes logical sense to deduct general principles from cases and then use those principles to interpret other cases. The problem remains one of theoretical content as one can arrive to any conclusion depending on how one interprets morality. It thus does not help much when solving a moral dilemma without having a clear idea of what we are doing and what we want to achieve (whether it is beneficence, autonomy etc.). Beauchamp in fact acknowledges that principles are "too indeterminate" and shares the fear that "they may be interpreted inflexibly" .63 Jonsen does not commit himself that Casuistry is a source of prin ciples but states that stronger claims might be made.64 He strongly suggests it however, when referring to the process of the commission arriving to the princi ples in the Belmont Report. This thus leads to the questions which Jonsen poses of what is a principle.65 Deriving from the latin 'principum' he reasons that "reasoned thought is princi pled thought,,66. It is what people often refer to as "in principle ... ". In their simplicity and directedness principles gave moral philosophers a language to speak in.67 G.E. Moore and William James also advocate the importance of casuistry in arriving to moral solutions.68 Jonsen's conclusion is that "the ultimate judgement about what should be done will flow from an interpretation of the principles in light of the circumstances and constant topics of clinical care. Principles alone do not lead to ethical decisions; decisions without principles are ethically empty".69 Thus while principles provide an indispensable guiding direction other features of the problem must be taken into consideration.7o Nevertheless Jonsen admits that a nonprinciplist bioethics is possible and necessary (italics mine), and that principlism is an abbreviated version of moral life. 71 Indeed Childress admits that he and Beauchamp become casuists when they
61 Ibid., pp. 242-243. 62 Beauchamp. T.L., "Principlism and Its Alleged Competitors", p. 191. 63 Idem.
64 Jonsen A.R., "Casuistry: An Alternative or Compliment to Principles?", p. 250. 65 Jonsen A.R., "Clinical Ethics and the Four Principles", p. 15. 66 Ibid., p. 16. 67 Jonsen A.R., Forward in A Matter of Principles? p. XVI. 68 Jonsen A.R., "Casuistry: An Alternative or Compliment to Principles?", p. 247. 69 Jonsen A.R., "Clinical Ethics and the Four Principles", p. 21. 70 Ibid., p. 18. 71 Jonsen A.R., Forward in A Matter of Principles?, p. XVI. 2.1 The 'Four-Principles' Approach 15 examine cases.72 Principlism is not, in Jonsen's view, "an orthodoxy but a utili tarian abbreviation of moral philosophy and theology that served the pioneers of bioethics well and may continue to be useful" ,73 but since "moral philosophy has rejoined the world of action and moral theology has been liberated from moral ism", he advocates consideration of in sights from hermeneutics, narrative and phenomenology but at the same time they too will have to meet the demands of policy formulation and practical, clinical decision processes?4
2.1.3 The Doctor-Patient Relationship
Edmund Pellegrino argues that principles should not be abandoned but should be grounded more firmly in the phenomena of the doctor patient relationship?5 The first problem he finds is that they are prima facie binding.76 This creates the problem that when they conflict one cannot 'trump' over another since now we face the problem of one principle having more weight than the other and that moreover, there is no convincing argument or formal mechanism that would grant trumping privileges to one principle over the other.77 Clearly, prima facie principles cannot be used to resolve conflicts amongst prima facie principles unless there is some external mechanism. This mechanism may be the circumstance of the case but in this case either the circumstances become a prima facie principle with moral force, or they would have to be justified by one of the prima facie principles themselves. In this case the problem is which one? Pellegrino argues that autonomy has shifted the centre of gravity from the doctor more and more unto the patient.78 The cause of this was increasing moral pluralism, a decrease in religious forces and an overall mistrust of authority and the misuse of that authority by professionals. Autonomy assures patients of par ticipation in their treatment alternatives, the right to accept and reject any of them, and to retain control of these intimate and personal decisions. It also guarantees respect in multiculturalist societies of different moral reasoning. 79 The emphasis on autonomy has fostered contract type relationships like the consumer-type and
72 Childress J.F., "Principles-Oriented Bioethics, An Analysis and Assessment From Within", p.87. 73 Jonsen A.R., op. cit., p. XVII. 74 Idem.
75 Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship: the Need for a Better Linkage", pp. 353-365. 76 bid., p. 353. 77 Ibid., p. 361. 78 Ibid., p. 354. 79 Ibid., p. 355. 16 2 Critical Overview of Principlist Theories the negotiated contract. But the very nature of having a contract fosters mistrust in the relationship as it determines the conduct.8o Indeed Pellegrino asserts that while these autonomy inspired models seem to protect individual rights they are in fact illusory and may even be dangerous since they are oblivious to the fact that the patient is in fact vulnerable because she is a patient; because of the power of the doctor's personality and charisma; and because there is the force of social sanction of medicine and its monopoly of medical knowledge which operates regardless of the details of the contract. Moreover, because of this signal of distrust, the doctor may withhold or restrain her inclinations to be beneficent.81 Pellegrino thus argues that autonomy must be more closely linked to beneficence and justice. Principlism has put autonomy at loggerheads with beneficence. Pellegrino notes the emergence of this clearly in Beauchamp's book with L.B.McCullough 82 who equate beneficence with paternalism.83 Although this is treated more profoundly when dealing with the phenomenology of principles, it is of note here that the principle of autonomy can be said to have originated out of paternalism. In fact, in my opinion, it was separated from what should have been an evolving principle of beneficence. This remains the contention throughout this book. But one has to arrive to it logically. Pellegrino also notes the conflicts between autonomy and Justice when it comes to dealing with third parties.84 He himself proposes that autonomy cannot rule over inflicting possible harm to third parties, for example keeping the confidentiality of an HIV patient who does not wish to disclose the information to close contacts85 yet with a negotiated contract model one may always make autonomy over-ride all other principles of justice. 86 The potential conflict between autonomy, beneficence and justice becomes more acute in matters of proxy decisions when the doctor has to evaluate against possible abuse by the proxy, and safeguard the welfare of the patient. Although Pellegrino proposes grounding principles in the phenomena of the doctor-patient relationship he does not work out a mode other than suggest that it should include insights from casuistry, moral psychology etc. However, he seems
80 Ibid., p. 356. 81 Idem. 82 Beauchamp. T.L. and McCullough L.B. Medical Ethics: the moral responsibilities of physicians, Prentice-Hall, Englewood Cliffs, NJ 1984. 83 Pellegrino argues that Paternalism assumes that the doctor knows better what is in the patient's best interest. "Paternalism, whether benignly intended or not, cannot be beneficent in any true sense of the word. Beneficence, and its corollary, non-maleficence, require acting to advance the patient's interest, or at least not harming them. It is difficult to see how violating the patient's own Perception of his welfare can be a beneficent act. Paternalism is obviously in a polar relationship. With autonomy, but it is also diametrically opposed to beneficence and non maleficence as well", Pellegrino E.D., op. cit., p. 357. 84 Idem. 85 Ibid., p. 358. 86 Ibid., p. 355. 2.1 The 'Four-Principles' Approach 17 to be suggesting that beneficence be the trump principle since it has traditionally been closest to the phenomenon of the relationship. Elsewhere with David Thomasma he argues for beneficence to be the main moral principle.87 His dis position is however, towards a better influence of virtue-based ethics.88 Basing his work on MacIntyre's conclusions89 Pellegrino notes that since moral differences for humans is diverse, hoping for a virtue-based general ethics demands too much90 but since the general good in medicine can be defined, hoping for a virtue based ethics in medicine is not only viable but paradoxically some of the reasons arise out of the deficiencies of principles; others arise from the more limited scope of professional ethics within the larger field of bioethics.91 More importantly however, is the fact that the moral agent, who performs the act, cannot be left out of moral judgements. In order to see what is good and not merely what are the rights involved, one has to look at virtue and intentions of the person acting.92 He acknowledges that virtue cannot stand alone and needs to be related to other ethical theories, including principlism, into a more comprehensive moral philos ophy than currently exists93 Beauchamp94 believes that he and Childress have always given the highest importance to virtues. He commends Pellegrino in proposing to relate virtue-ethics to principle-based ethics in contrast to some who seem to want to downgrade principles in favour of viltues,95 although he seems at odds with him when Pel legrino emphasises the more foundational importance of virtue theory and refers to his account as 'virtue-based' .96 Also, although he acknowledges that the two kinds of theories have different emphasis but are compatible97 he overlooks how this may be done. This is true particularly in view of their main difference of thought in which principles are prima-facie binding whereas for Pellegrino and Thomasma, "beneficence remains the central moral principle of the ethics of medicine" .98
87 Jonsen A.R., "Casuistry: An Alternative or Compliment to Principles?", p. 247. 88 Pellegrino E.D., "Toward a Virtue-Based Normative Ethics for the Health Professions", p.253. 89 MacIntyre, A, After Virtue, 1984. , Whose Justice? Which Rationality?, Indiana: University of Notre Dame Press, 1988. , Three Rival Versions of Moral Enquiry, Indiana: University of Notre Dame Press, 1990. 90 Pellegrino E.D., op. cit., p. 263. 91 Ibid., p. 266. 92 Idem. 93 Ibid., p. 254. 94 Beauchamp. T.L., "Principlism and Its Alleged Competitors", p. 194. 95 Baier. A., Moral Prejudices, Cambridge: Harvard University Press, 1994 96 Beauchamp. T.L.. op. cit., p. 194. 97 Ibid., p. 195.
98 Pellegrino E.D., Thomasma D.e., For the Patient's Good: The restoration of Beneficence in Health Care, New York: Oxford University Press, 1988 pp. 7-8. 18 2 Critical Overview of Principlist Theories
2.2 Robert Veatch's Model of Lexical Ordering
Robert Veatch proposes to resolve conflicts among principles by a method which involves both some amount of balancing and ranking of principles in a lexical order.99 Veatch basis his thoughts on a contractual model of the doctor patient relationship in which the patient is seen as a partner. 100 He reviews four possible models to govern the physician-patient relationship and rejects three of them (The "Priestly model" which is basically the old paternalistic model, the "Engineering Model" which gives decision-making power to the patient and reduces the phy sician to the role of a technician, and the "Collegial Model" which assumes shared responsibility in decision-making and in which the patient and physician are treated on equal counts).101 In the remaining "contractual model", the decision is taken according to circumstance. The physician takes responsibility for all purely technical decisions whilst the patient retains control over decisions which involve personal moral values and life-style preferences. Both are respected as free moral agents. 102 Thus a patient can decide whether to opt for a surgery which the doctor feels would produce most benefit. Contractual models have been faulted for their limited features of the ideal core or essence of the physician-patient relation ship.103 It contrasts for example with Pellegrino's assertion that contract rela tionships are based on mistrust which can jeopardise beneficence on the part of the physician, and that in any case there is no evidence that a relationship based on mistrust is any better than a relationship based on trust, i.e. in a covenant rather than a contract. 104 Veatch however, is adamant on this model disagreeing with Pellegrino where he stresses the vulnerability of the Patient,105 and in fact stresses that the term 'patient' is not a good one; people go to physicians for check-ups, child birth, immunisation, etc. and are frequently very healthy. Also in chronic diseases, although they have an illness, people are otherwise healthy. 106
99 Veatch R.M., "Resolving Conflict Among Principles: Ranking, Balancing, and Specifying, in Kenn. Inst. of Ethics J., Vol. 5, No. 3, pp. 199-218. 100 Veatch R.M., "Models for Medicine in a Revolutionary Age." In Hastings Cent Rep. 2 No. 3 (1972), pp. 5-7. , A Theory of Medical Ethics, 1981. , The Patient-Physician Relation, 1991. 101 Brody H., "The PhysicianlPatient Relationship.", in Medical Ethics, ed. Veatch R.M., Jones and Bartlett Publishers, 1989, p. 70. 102 Idem. 103 Ibid., p.7!. 104 Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship.: the Need for a Better Linkage", p. 356. 105 Idem. 106 Veatch R.M., The Patient-Physician Relation, p. 2. 2.2 Robert Veatch's Model of Lexical Ordering 19
7 In his "mixed strategy" approach for resolving conflicts among principles lO Veatch classifies beneficence and non maleficence as utility Consequence-Maxi mising Principles insofar as these two principles try to bring out the maximum good consequence.108 Autonomy and Justice he calls Nonconsequentialist Principles since they do not focus on maximising consequences.109 A limited amount of balancing has to occur here between the two principles in each category. Finally one lexically ranks the nonconsequentialist over the consequentialist thereby ranking autonomous decisions above the outcome of balancing beneficence with nonma leficence. In this respect he uses a limited amount of balancing which he considers to be the weakness of the four principle approach used by Beauchamp and Childress. 11O The reasons for this are that historically balancing is connected to intuitionism as it can be argued that balancing theory is nothing more than an elaborate rationale for letting preconceived prejudices rise to the surface in which one principle is always made more weighty than another. He also notes that with balancing alone, one may consider that the overall good to society or the individual outweighs the autonomy of the individual. Again, why this is so is probably a result of his own argument that the balance is found in nothing but preconceived preju dices. If the society one li ves in does not conform to my moral understanding, why should it trump over one's own autonomy. As an example one could take previous communism which trumped over religious freedom of individuals. Veatch himself comtends that there should be occasions where, when justice and autonomy enter into conflict, justice takes priority. III "The real question is when autonomy must give way", prophesizing this as the critical moral project for the future of biomedical ethics. 112 There is however, an inherent fault with Veatch's model. Veatch divides the consequence maximising principles into 'Individual' and 'Social', i.e. those brought forward by the 'Hippocratic utility' of the doctor towards the patient and those of 'social utility' which considers the benefits and harms on all parties concerned brought about by the action. 113 Yet he states that he has, "no doubt that some social consequences not only deserve consideration, they even deserve to be overriding. The problem is determining which social consequences" .114 This means effectively that he is willing to admit that there are instances in which the consequence maximising principles will be lexically ranked over the
107 Veatch R.M., "Resolving Conflict Among Principles: Ranking, Balancing, and Specifying", pp. 199-218. 108 Ibid., p. 20 I. 109 Ibid., p. 202.
110 Ibid., p. 209.
III Veatch R.M., "Which Grounds for Overriding Autonomy Are Legitimate?" in Hastings Cent. Rep. Vol. 26 No. 6, p. 43. 112 Ibid., p. 42.
113 Veatch R.M., op. cit., p. 210 & p. 212. 114 Veatch R.M., op. cit., p. 43. 20 2 Critical Overview of Principlist Theories nonconsequentialist ones. This goes against his model which strongly affirms the converse. Whilst one has to concede that in general he would not allow social consequences to overrule autonomy, it is of course these problem cases that create the dilemma, which models are supposed to solve. Veatch suggests finding a method which would sharply distinguish the "mere aggregate" social consequences, "which can never by themselves overcome autonomy", from other specific concerns such as the promotion of justice. 115 But since social utility is after all a balance between social good and social bad, then justice does not always remain a nonconsequentialist principle. A second fault with the 'lexical ordering' model is that it does not cater for situations in which beneficence can override autonomy without being paternalistic but for the simple sake of beneficence-the good of the patient, and, more importantly without destroying the physician-patient relationship. Such is the case when the patient asks for a treatment which is futile. This could be simply the prescription of an antibiotic to asking for medication which is still controversial which the patient would have heard about. Another example would be when a patient requests something that is deemed immoral on the part of the physician. The physician can appeal to justice but in reality one is making consequentialist arguments. Another situation is in dealing with a proxy deciding on, say, a ter minally ill patient, and who the physician has reason to suspect as having a conflict of interest. 116 This in fact points to a weakness of the 'contractual' physician patient rela tionship. Whilst this partnership is supposed to respect the physician as a moral being and not simply as an equal,117 it does not say what the physician can do in such cases. In this respect, Pellegrino notes that, "In practical terms this will mean that, institutionally and ethically, mechanisms be devised to permit doctors as well as patients to withdraw from their relationship .... The doctor cannot withdraw without first making provisions for transfer to another doctor, because to do so would constitute abandonment, in itself a serious breach of ethical obligation" .118 This can be problematic however, in cases of abortion and assisted suicide. The Catholic Catechism, for example, would consider such action as being an accomplice. 1I9 Clearly if a patient puts trust in a physician, the definition of this trust must include the physician as a moral being and therefore his acceptance for what he is and believes in, which may include not participating in acts which the physician deems immoral.
115 Idem.
116 Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship.: the Need for a Better Linkage", p. 359. 117 Veatch R.M., The Patient-Physician Relation, p. 4. 118 Pellegrino E.D., op. cit., p. 359.
119 Giacchi E., "Amerai il prossimo tuo come te stesso", Parte Terza: La Vita in Crista, Sezione seconda: I dieci Comandamenti, Capitolo secondo: Articolo 5: Il quinto Comandamento, nn 2272. 2.2 Robert Veatch's Model of Lexical Ordering 21
Veatch's principle argument therefore is to give autonomy the highest impor tance amongst the principles. Although he acknowledges that there may be cases where justice can and should prevail, the model of lexical ordering and the rela tionship based on a contract does not answer these questions. He refers to this as a challenge to bioethics in the future. 120 "Autonomous individuals are self-legis lating, but that means legislating only for themselves. If this is the case, auton omy's triumph is truly temporary. The real challenge in medical ethics is deciding which version of community should dominate when our ethic tums social" .121
2.3 The Principle of Permission
Engelhardt also puts a different emphasis on principles, giving autonomy priority as a "side constraint" .122 Whilst at first assigning priority to two principles, autonomy and beneficence,123 his later treatment of 'Foundations' argued for a single principle of 'permission' .124 This is described as a negotiated contract model in which the notion of a universally applicable set of principles beyond autonomy is irrelevant: "doctor and patient may pursue any course they wish, provided it is mutually agreed upon. That which is agreed upon is no concem of third parties. It might include active euthanasia, assisted suicide or an advance directive that calls for the involuntary or non-voluntary euthanasia." 125 Engelhart l26 recognises the impossibility of discovering the secular, canonical, concrete ethics. He attempts instead to secure a content-less secular ethics without establishing the moral worth or moral desirability of any of the particular choices. The fact is recognised that persons within a particular moral community will not be appreciated by moral strangers as having a claim on them unless the latter convert to the particular view of the former. 127 Indeed Engelhardt laments the fact that people "should join a religion"; but outside this we are in a sense doomed to living in a society which can have no state regulating morality.128 The morality that binds moral strangers thus has to be by default libertarian,129 not because of
120 Veatch R.M., "Which Grounds for Overriding Autonomy Are Legitimate?", p. 43. 121 Veatch R.M., The Patient-Physician Relation, p. 161.
122 Childress J.F. "Principles-Oriented Bioethics, An Analysis and Assessment From Within", p.77. 123 Engelhardt H.T., Jr., Foundations ()f Biomedical Ethics, 1994. 124 Engelhardt H.T., Jr., FOllndations of Biomedical Ethics, 1986.
125 Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship.: the Need for a Better Linkage", p. 359. 126 Engelhardt, H.T., op., cit., p. vii, 127 Idem. 128 Ibid,. p. xi. 129 Ibid., p. x. 22 2 Critical Overview of Principlist Theories any value attributed to freedom but because in the light of the failure of the enlightenment project and the modern moral project, this is the only way they can meet. 130 Thus conceived the principle of autonomy is re-named as the principle of permission. 131 Elsewhere, with Kevin Wildes, he argues that if one rejects the principle of autonomy so construed, and if not all hear or acknowledge the voice of God in the same way, and moreover, if secular society cannot provide a content full morality on which to go on, one cannot complain through secular reasoning. 132 Those who accept the principle have to find a moral basis. Engelhardt argues that if one refuses to participate, one simply has discovered a limit to the area of agreement. It is through this, Engelhardt says, that true equality is appreciated; by having the right not to participate in any particular community. 133 In summary therefore, since there are as many theories of fairness and content full understanding of distributive justice as there are major religions in the world, and since the definition of what is good may vary between individuals, justice and beneficence have to be defined and agreed upon within a permissive relation ship.134 This is particularly true, within this vision, for the principle of beneficence since morality involves willing the good of others and since there is no canonical, content-full definition of good outside particular moral narratives. 135 Thus middle level principles are very ambiguous, they argue, when it comes to defining what they are. 136 When one argues the case for procurement of organs from third world countries, for example, opponents will say that this is exploitation of people vulnerable to poverty. In fact all four principles can be invoked in opposition. But those in favour will argue that it is they who forbid such sales who are in fact exploiting the poor to satisfy their own moral sentiments which are not shared by many inhabitants of the developing worldp7 "In that there is no pos sibility in general secular terms of resolving the disputes regarding the moral probity of the sale of human organs or of commercial surrogacy, choices in this area fall by default beyond general secular moral authority.138 The same conclu sions are unavoidable in the case of health care social welfare because there is no canonical secular understanding of distributive justice. 139 Thus principles are
130 Engelhardt H.T., Wildes KW., "The Four Principles of Health Care Ethics and Post modernity: why a libertarian interpretation is unavoidable", in Principles of Health Care Ethics, p. 136. 131 Engelhardt H.T., op. cit., p. x.
132 Engelhardt H.T., Wildes KW., op. cit., p. 137.
133 Engelhardt H.T., op., cit., p. 70.
134 Engelhardt H.T., Wildes KW., op. cit., p. 138. 135 Ibid., p. 137.
136 Ibid., p. 143.
137 Ibid., pp. 144-145. 138 Ibid., p. 145. 139 Idem. 2.3 The Principle of Permission 23 simply 'chapter headings' under which one clusters various considerations of each one. 140 James Lindemann Nelson 141 concedes that Engelhardt remains faithful to the methodology of modern philosophy and that he will not accept that achieving coherence among principles together with our conceptions and morals of the world will be enough to warrant any judgements. 142 Also it is not coincidental that Engelhardt supports such a view, himself being an Orthodox Catholic believing that God reveals himself only to some. It is only with God's revelation that one can come to understand morality the Christian way. Outside any particular religious view we are in a sense doomed to this principle of permission. 143 Engelhardt sincerely laments the poverty of the implications of 'permission'. 144 "The book acknowledges that, when individuals attempt to resolve controversies and do not hear God (or do not hear him clearly) and cannot find sound rational arguments to resolve their moral controversies, they are left with the device of peaceably agreeing how and how far they will collaborate" .145 Although Nelson recognises Engelhardt's arguments to be forceful (in that whatever normative justification you favour, it will always presuppose the very thing it is trying to justify), he does find fault with giving oneself a reason why one should adhere to such an agreement being proposed. 146 If it turned out that what we agree with within the relationship does not serve my interest, why should one adhere to the agreement? In the sense, why should one be 'moral' in observing this agreement in the view that the agreement gives 'moral authority'? "What is there in what Engelhardt has said which would provide me with anything that I could rationally count as a moral reason-a secular, public kind of moral reason-for sticking to the agreement?" .147 One could, say, argue for the sake of peace, but even Engelhardt agrees that 'this view of ethics and bioethics is not grounded in a concern for peaceableness' .148 If there is no common morality, some people may opt for not wanting peace. 149 Another possibility could be that it is within one's interests to act peacefully if one is to secure a way without force to reach agreements. But Nelson points out that this leaves me thinking only strategically rather than morally; the only way one can claim to have made a moral act is by adhering to my agreements. This is rather a restricted and qualified view of
140 Ibid., p. 146.
141 Nelson J.L., "Everything Includes Itself in Power: Power and Coherence in Engelhardt's Foundations ofBioethics", in Reading Engelhardt, Kluwer Academic Publications 1997, pp. 17 -18. 142 Ibid., p. 18. 143 Ibid., p. 16.
144 Ibid., p. 17.
145 Engelhardt H.T., op. cit., p. X. 146 Nelson J.Loo, op. cit., p. 21. 147 Ibid., pp. 21-22.
148 Engelhardt H.T., op. cit., p. 70. 149 Nelson J.L., op. cit., p. 22. 24 2 Critical Overview of Principlist Theories morality. Apart from strategic considerations therefore, if one is advantaged in the relationship there is no reason why one should care about the other. It seems impossible how permissions and agreements, as such, count as moral reasons for action. 150 The only way one can see the principle of permission working is when moral strangers meet within a relationship and agree upon it only when their respective moralities have points on which they agree. Therefore, we will both be doing, on that particular occasion something which we both deem to be moral. If one then wishes for something else which the person in this relationship will not agree on moral terms, one simply goes to another (albeit, moral stranger) with whom at least some overlap in view exist on this second thing. This way people do not give each other permission to do anything against our moral beliefs within a relation ship; but give permission to leave the relationship for another one should it suit us to do so. Rather than permission this would be tolerance to each other's views. On that particular point with which we are agreeing we will not be moral strangers. The only way which one can permit something, with which one morally does not agree, to happen within the contract would be to allow oneself to do something immoral. This would turn one into an immoral agent however, and may even give reason to the other person not to refuse trust in the first place. If the only morality available to allow one to participate with moral strangers serves as a trump to ones own moral values then there clearly is a reductio ad absurdum in the view of relationships for how can one conceive oneself to have done something moral when by the very act one commits an immorality? How is the person to trust me not to break this moral agreement when I have given proof of my willingness to waiver morality? In speaking about Kant, Engelhardt criticises how he "smuggled" content into his moral conclusions,151 putting respect for persons, beneficence and the will as part of secular morality. But at least one person, Stanley Hauerwas,152 has doubts whether Engelhardt can show that the principle of permission is the "core" of the morality of the mutual respectl53 as such an "account seems too close to Kant for someone who has disavowed the Kantian deduction." Although Engelhardt sees liberal democracies morally neutral by default l54 and moreover, committed to being morally neutral, Hauerwas challenges whether one such democracy even exist, for governments always have particular sets of
150 This argument in itself points to the phenomenology of the doctor-patient relationship: based on beneficence; for there can be no other reason, other than for strategic gain, why a doctor should enter into such a relationship. This view is recalled in the section of the phenomenology of the Physician-patient relationship. 151 Engelhardt H.T., Jr., Foundations of Biomedical Ethics, New York: Oxford University Press. 1986, pp. 105-108. 152 Hauerwas S., "Not All Peace is Peace: Why Christians Cannot Make Peace with Engelhardt's Peace", in Reading Engelhardt, p. 39. 153 Engelhardt H.T., Jr., Foundations of Biomedical Ethics, p. 117. 154 Ibid., p. 120. 2.3 The Principle of Permission 25 interests. 155 Engelhardt's may thus be only a thought experiment, but even so the "peace" offered is too coercive. 156 Moreover, why should people care for others simply because they fall ill? And why should society pay for people who waste their time caring for the sick? In reasoning this way Hauerwas thinks Engelhardt to be basing his thoughts on his own Christian beliefs. IS? If there is an alternative, Hauerwas says it is in being an alternative and that that is what Christian hospi tality towards the ill is all about. 158 Clearly all these theories lament a common external morality or Justice. In shifting from the phenomenology of medicine they do not resolve dilemmas. Rather they confuse them and try to justify anything libertarian. What follows is a phenomenological look at each principle to attempt its insertion in a physician patient phenomenology-based model. This will hopefully give us a new insight into the evolving nature of the doctor-patient relationship.
155 Hauerwas S., op. cit., p. 40. 156 Idem. 157 Ibid., p. 41. 158 Ibid., p. 42.
Chapter 3 Phenomenological Roots of Principles
After having considered the important theories and frameworks the phenomeno logical roots of each principle are now examined. If one is to try to ground principlism within the phenomenology of the physician-patient it is important to examine what the phenomenology of each principle is, or in which phenomenon it has its origin. In order to do this one must first define what the phenomenology of the doctor-patient relationship is, and secondly see if any of the principles either derive directly from this phenomenon or correspond directly to it. The latter would mean that it either forms part of the phenomenon or is in fact the phenomenon itself. If there are any remaining principles one has to find from which phenom enon other than the doctor-patient relationship it derives from and see how it is related to that phenomenon which directly derives or coincides with that of the relationship itself. This would hope to achieve three goals: first a better understanding of princi ples vis-a-vis the physician-patient relationship, second how the principles can come together to work within the framework of the relationship, and third, a contemporary view of the phenomenology of the doctor-patient relationship. Whilst it would be unwise to ignore principles I altogether; it is equally unwise to use them simply as a check-list2 or use them in ignorance of the phenomenon of the physician-patient relationship.3 It was seen that both latter methods do not help to resolve dilemmas when they arise within the relationship.4 This after all is the reason why principles, whilst widely accepted 'in principle's have found consid erable difficulty when proposed as a framework6 for resolving dilemmas. If one can find a way to respect all four principles whilst ground them in the most obvious place: that of the physician-patient relationship itself, following the
1 Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship: the Need for a Better Linkage", p. 361. 2 Clouser K.D., "Common Morality as an Alternative to Principlism", p. 223. 3 Pellegrino E.D., op. cit., p. 361. 4 The articles of the above two footnotes are two of the many that argue this point. 5 WulffH.R., "Against the Four Principles: a Nordic View", p. 277. 6 Beauchamp T.L., "Principlism and Its Alleged Competitors", p. 182.
P. Mallia, The Nature of the Doctor-Patient Relationship, SpringerBriefs in Ethics, 27 DOl: 10.1007/978-94-007-4939-9_3, © The Author(s) 2013 28 3 Phenomenological Roots of Principles thoughts of Pellegrino,7 one would hopefully have found a way which could lead to the just resolution of moral problems acceptable to society. The term phenomenon as defined by Heidegger is used here.8 A phenomenon is 9 that which manifests itself in itself. A distinction is made from "appearance" ,10 which is a manifestation of a phenomenon. Thus a symptom is not a phenomenon if it is a manifestation of an underlying disease. I I It is an 'appearance'. If however there is no underlying disease then the symptom itself will be the phenomenon (although the analogy is not totally adequate as the term 'symptom' implies an underlying disease. In this case the symptom will then have to be defined itself the disease). I2 Therefore if one concludes that a principle is in fact the phenomenon which is the make-up of the doctor patient relationship, it can be said to define the phe nomenology of the same relationship. If a principle is an outcome, an external manifestation of the phenomenology of the relationship (and therefore also of the first principle) it is by the above definition an 'appearance'. That is, one principle may be the 'appearance', the 'manifestation' of another principle. The following points are argued: 1. That the doctor-patient relationship is based on beneficence. Beneficence does not therefore have roots in the relationship but is itself a composite part of the relationship, both as conceived traditionally and if it is to retain the phenom enological human condition of care (as defined in 'health care'). 2. Nonmaleficence, being a recognition of the harm one can do by having the power within the relationship, is a manifestation of the principle of beneficence, a principle which arises because of the first principle. 3. The concept of Autonomy finds roots in the concept of liberty. Therefore if liberty is a phenomenon of the expression of the human condition, autonomy is a manifestation of this phenomenon. Conversely however 'respect for auton omy' is an action of the party who has the power in the relationship (as conceived in usual discourse; since the professional as well has autonomy I3 which is to be respected ) and therefore although an obligation, as is the
7 Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship: the Need for a Better Linkage", p. 364. 8 Heidegger M., Being and Time, Basil Blackwell Ltd., 1962 (translation), pp. 51-58. 9 Ibid., p. 51. 10 Ibid., p. 52. 11 Idem.
12 '''Phenomenon', the showing-itself-in-itself, signifies a distinctive way in which something can be encountered. "Appearance, on the other hand means a reference-relationship. Which is an entity itself, and which is such that what does the referring (or the announcing) can fulfil its possible function only if it shows itself in itself and is thus a 'phenomenon'''. Ibid., p. 54.
13 Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship: the Need for a Better Linkage", p. 355. 3 Phenomenological Roots of Principles 29
obligation to carry out correct treatment and non maleficence, is, like the latter a manifestation of beneficence. This however has been understood owing to the prominent expressions of the phenomenological roots of autonomy and not traditionally as nonmaleficence. 14 4. Justice is itself a phenomenon of society but brings to medicine its phenomenon of conflict, such as choosing how to allocate resources. It is also that phe nomenon which seeks order and law, but which may also appeal to one's conscience. As such therefore, it is a phenomenon which lies outside the physician-patient relationship but to which this relationship will have to appeal to when deliberating moral conduct. 15
3.1 The Nature of the Physician-Patient Relationship
3.1.1 Communication
Raanan Gillon 16 notices how the contributions to the section on health care relationships in his "Principles in Health Care Ethics" have underlying them a common notion that in order to achieve moral objectives, good communication with the patient is essential. There are also two commonly shared assumptions; first that health care is essentially beneficial 'in intent' but that secondly this beneficence is dependent on consent for the cared-for. Nonmaleficence and Justice are described as 'constraints'. 17 In effect therefore the essential principle in the physician-patient relationship is beneficence; the other principles being imposi tions, qualifiers, of what we intend by beneficence today. Robert Rakel 18 describes compassion, interest, and thoroughness as the essential components of successful patient care. Traditionally these are terms referred to as 'bedside manners', which also include qualities of "concern, kind ness, friendliness, wit, and cheerfulness". These lead to trust and confidence between the patient and the physician which in turn lead to the essential element of good communication. The greatest deterrent is an attitude of indifference or lack of interest on the part of the physician. 19
14 referred to in old maxims as 'primum non nocere' and in the Hippocratic oath and more recent oaths of the World Medical Association. 15 The question of which justice should one appeal to is dealt within another chapter.
16 Gillon R., "Client-Health Care Worker Relationships and Health Care Ethics-Introduction", in Principles of Health Care Ethics, p. 340. 17 Idem.
18 Rakel R.E., "Establishing Rapport", p. 249. 19 Idem. 30 3 Phenomenological Roots of Principles
It is therefore the communication within the relationship which is essential to an understanding of the nature of the doctor-patient relationship. The tension between beneficence and autonomy lying at the heart of bioethical debate should therefore be understood in terms of what one understands by this communication. The guidelines for the practice of medical ethics of the British Medical Associa tion state that patients by reason of their illness are vulnerable and it cannot therefore be assumed that the individual patient necessarily understands the problems and possibilities which the situation presents?O While the doctor should strive to deserve the patient's trust and confidence, equally he should trust and understand the patients' judgments about themselves. And whilst originally the relationship relied on paternalistic approaches today a respect for autonomy is advocated. Indeed the paternalistic response caused a failure in communication21 and lack of trust. It was this paternalistic attitude which led to the mysticism of the doctor?2 Nevertheless it is wrong to conclude that because of paternalism, beneficence is to be put below the autonomy of the patient. Paternalism in itself is wrong and not beneficent23 in any true sense of the word. It is a misuse of authority.24 Rather what is necessary is a redefining of beneficence. Pellegrino argues that contract models of the physician-patient relationship are based on lack of trust and that the patient can only suffer under these circum stances.25 The doctor's charisma and personality, and moreover his knowledge of medicine, combined with the fact that the patient is ill, all put the doctor in an advantageous position. A situation of mistrust might restrain the doctor from being beneficent. In the phenomenology of the rapport Alessandro De Natale distinguishes two compo nents,26 one 'specific' relating to the technical competence on the pathological charac teristics and on the relevant therapies, and another 'non-specific' deriving from the doctor's capacities to control the rapport and thus regulate interactions with the patient. The relationship depends on the psychology and the disease of the patient, the psychology and objectives of the doctor and finally on the situation into which the relationship develops?7
20 "The Social Contract: Autonomy and Paternalism", in Philosophy alld Practice of Medical Ethics, BMA, 1988, p. 7. 21 Ibid., p. 8. 22 Idem. 23 Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship: the Need for a Better Linkage", p. 357. 24 Ibid., p. 354. 25 Ibid., p. 356. 26 De Natale A., "Fenomenologia ed eticita' dell a relazione medico-paziente", in Bioetica e Cultura, semestrale IV (1995) 7, p. 59. 27 Idem. 3.1 The Nature of the Physician-Patient Relationship 31
3.1.2 Goals of Medicine
It is difficult to touch upon the goals of medicine without touching upon the meaning of medicine and its purpose. A promising way is to focus on the sick . person as done by the Hastings Centre group?S The goals were classified in four 29 categories : 1. The prevention of disease and injury and the promotion of maintenance and health. 2. The relief of pain and suffering caused by maladies. 3. The care and cure of those with a malady, and the care of those who cannot be cured. 4. The avoidance of premature death and the pursuit of a peaceful death. The committee issuing the report said that contemporary culture and medicine have seen death as the enemy?O This has led to giving lethal disease too high a proportion of research money, sometimes neglecting other important areas of health care. While avoiding premature death should be a high goal for medicine as it deprives the individual to live his or her potential life to the full, the seeking of increasing life expectancy for its own sake "does not seem an appropriate medical goal". Since death will come to all, the seeking of a peaceful death by creating appropriate clinical circumstances is commendable. But medicine should avoid treating death as a medical failure. Terminating life-sustaining treatment has made death a more, not less, complex problem. It is death at the wrong time, for the wrong reasons and in the wrong way (without pain relief, for example) which is the enemy. The moral goals of medicine should be to seek appropriate ways how to stop life-support treatment when death is in the process. Conversely, the report states that there are inappropriate goals of medicine. 31 The use of medicine as torture or to inflict pain and the use of medical subjects for research purposes without their consent are considered wrong and unacceptable. Acceptable non-medical uses of medical knowledge include use of medical skills for family planning (e.g. contraception, and sterilisation). Although from some religious and philosophical perspective some methods are morally wrong, it is generally accepted that medicine help in non-medical uses. 32 Uses to enhance human characteristics are acceptable under certain circumstances (e.g. plastic surgery) but the use of growth hormones and anabolic steroids for sport and to enhance the body are met with scepticism. Use of medical information, especially genetic, for insurance, employment and welfare prospects are considered
28 Specifying the Goals of Medicine, Special Supplement, Hastings Centre Report, Nov-Dec 1996, p. S9. 29 bid., pp. SIO--SI4. 30 Ibid., p. S 13. 31 Ibid., pp. SI4--S16. 32 Ibid., p. S 15. 32 3 Phenomenological Roots of Principles inappropriate. Coerced abortions, mandated genetic screening to improve popu lation and prenatal diagnosis are all temptations which can harm human dignity, especially in the light of the eugenics movement of the late nineteenth and early twentieth centuries. The report concludes that just as it is a mistake to see autonomy as a primary goal of medicine, it would be no less a mistake to see social well-being "exces sively communitarian" as a primary goal. It is not medicine's goal to define what is the overall good of society; but a society which abused medicine would "soon cease to have its own centre and its own integrity". These goals of medicine are inherent in the nature of the physician-patient relationship. They implicitly imply an overall attitude of beneficence and care. What is necessary then in understanding the nature of the relationship is how the physician relates to 'care'.
3.1.3 The 'Care' in Health Care
If one has to understand the phenomenon of the doctor-patient relationship, and if one is to speak about 'goals', or 'ethos', one is using philosophical jargon. The phenomenological school has a lot to offer in our understanding of this area. Man's being-in-the-world is often appealed to. Man's phenomenology is presented (to him), as it were, in the state he finds himself in the world. Heidegger,33 indeed, describes the existential fact of Dasein34 (the being which sees itself in itself) as Being-in-the-world. This being-in-the-world can be seen in different ways: having to do with something, producing something, attending to something and looking after it, making use of something etc., All these ways of Being-in have concern35 as their kind of Being. The expression concern is used as an ontological term for "existentiale" -the existential nature of Being-in-the-world is 'concern'. The word is chosen by Heidegger because "the Being of Dasein itself is to be made visible as care?6 "This expression too is to be taken as an ontological structural concept.,,37 Dasein, when understood ontologically is care; since Being-in-the-world belongs essentially to Dasein, its Being towards the world is essentially concern.
33 Heidegger M., Being and Time, p. 83. 34 discussed in more depth in Chap. 4. 35 Heidegger points out that the word 'Besorgen' (translation, 'concern') has many usage's. The translators note that the word 'concern' has many usage's in the English language where 'Besorgen' would be inappropriate in German, such as 'This concerns you'. "That is my concern', 'He has an interest in several banking concerns'. '''Besorgen' stands rather for the kind of 'concern' in which we 'concern ourselves' with activities which we perform or things which we procure", 36 The authors note that the important etymological connection between 'Besorgen' ('concern') and 'Sorge' ('care') is lost in the translation. Ibid., p. 84. 37 Idem. 3.1 The Nature of the Physician-Patient Relationship 33
Now Heidegger never had the doctor-patient relationship in mind and therefore 'care' may seem to be quoted out of context here. But both doctor and patient enter into the relationship out of concel11. The doctor enters into the relationship out of concel11 (care) for the patient and the patient enters into the relationship out of concel11 for himself or herself. To be sure, 'care' can also have a significance of deficient care-leaving undone, neglecting, renouncing. 38 For this argument it is assumed however that the doctor enters the relationship out of concel11 and thus care for the patient, to do the job of his/her profession and provide health-care. Admittedly the doctor can enter the relationship for 'goods intel11al' and 'goods extel11al'39 to the profession (or 'practice', as defined by Alasdair MacIntyre). Goods extel11al need not be bad in themselves, such as profit and popularity, but do not directly concel11 themselves with the goals of medicine. Goods intel11al on the other hand are those goods which are oriented to enhancing the profession, the personal satisfaction, and of course in this case the welfare of the patient. Phenomenologically however it would not be incorrect to say that physicians seek the goods intel11al when caring for a patient. The relationship exists outside its potential to render money and prestige. Although some may enter the profession solely for this reason, they are in fact using the goods intel11al which have been built by the profession in the past; an abusive or parasitic relationship to the profession.40 To enter a practice is to enter into a relationship with the profession; one has to respect the viltues and codes of conduct of that profession.41 Another important element is 'intentionality' .42 The intention for which the physician enters into a relationship with the patient is important. Whether he enters for goods intel11al or for goods extel11al will determine his/her self-individuation.43 But it is only if he or she enters for the goods intel11al to the relationship (albeit even for the goods extel11al, but not for this alone) does he or she contribute to the overall goods intel11al of the profession and of the physician-patient relationship as a consequence. Only 'care' therefore understood as entering the relationship to achieve the health and good-in-general of the patient will the doctor truly benefit the relationship and the name of the profession; moreover he/she contributes to his/ her own process of self-individuation. This kind of care is in fact beneficence. Beneficence is thus the phenomenon with which a doctor seeking goods intel11al enters into the physician-patient relationship. It does not have roots in the rela tionship but is itself the phenomenon which describes the bondage. If Being in-the-world is defined as 'care' ,44 the Being of the doctor within the relationship
38 Ibid., p. 83. 39 MacIntyre A., After Virtue, pp. 188-191. 40 Ibid., p. 196.
41 Ibid., p. 194.
42 Grundberg L., "The Human Condition in the Context of the Phenomenology of Life", in Plzellomell%gica/ Ellquiry. vol. 19 Oct., 1995, p. 89. 43 Ibid., p. 91.
44 Heidegger M., Beillg and Time, p. 84 34 3 Phenomenological Roots of Principles as defined by this 'care' is beneficence and is taken to be the meaning of 'care' in 'health care'.
3.1.4 The Special Bond
However one also needs to define Being-in-the-relation for the patient. The care (concern) the patient has in the relationship is for himself or herself. Self individuation thus comes through the role played in this relationship. The patient will want the doctor to act beneficently and competently and so puts trust in him/ her. The 'care' (concern) this time is for the potentiality-for-Being (healthy). The patient phenomenologically enters as a concern towards himself/herself. Why enter a relationship with a doctor? Is it only because the doctor possesses specialised knowledge? Or is it for something more? One may say that a patient may enter the relationship simply for the expertise the doctor has to offer; a contractual relationship in which the doctor is expected to observe rules of conduct to respect his individuality.45 The suffering and the patient in general know that they need not approach the physician the way they would approach a normal businessman who has profit primarily in mind.46 Patients believe that in contrast to a car salesman, they can trust their doctor to do what is best for them.47 "This trust and admiration for physicians reflects the general human tendency to regard with special admiration individuals whose lives are devoted to the service of others" .48 Eric Cas sell cleverly points out that the relationship does not require a doctor; nurse, shaman, or anyone in the role of healer can be substituted. But in our culture that role is called the doctor.49 The power of hope is invested in the physician.5o That the relationship has social and cultural dimensions is reflected in an emergency department where the patient does not know the doctor and yet the doctor can make the pain ease, the panic subside and the patient feel better.51 He asserts that the role also works on the body as people in a hypnotic state can demonstrate bodily changes when simply prompted with a word to which they have an emotional attachment.52 The special bond relates both ways and even the physician is open to physical and emotional
45 Veatch R.M., The Patient-Physician Relation, p. 2. 46 Gunderman R., "Medicine, The Pursuit of Wealth", in The Hastings Centre Report, vo!. 28, no. I, Jan-Feb 1998, p. 11. 47 Idem. 48 Such admiration can be seen for example in that given to Mother Theresa, notwithstanding her religious position. 49 Cassell E.J., The Nature of Suffering, p. 66. 50 Ibid., p. 70. 5l Idem. 52 Ibid., p. 71. 3.1 The Nature of the Physician-Patient Relationship 35 danger and to manipulation by the patient. 53 The patient puts trust in the doctor to act on his or her behalf and to be constant towards him or her. 54 In summary the physician-patient relationship is entered upon by two indi viduals with different concerns which paradoxically is the same concern-that of the well-being of the patient. One enters with a concern for the other; one enters with a concern for oneself. The special bond is provided by the trust one puts in the other to act on his/her behalf. For this trust to develop, good communication and constancy on the part of the physician are necessary. But foremost it is the trust in beneficence by one and the seeking of internal goods by the other (the beneficence itself) which defines the phenomenon of the relationship.
3.2 The Principle of Beneficence and Virtue
Although the principle of beneficence has been defined as the phenomenon of the physician-patient relationship, further qualifications are necessary to define it. If Being-in-the-world was defined as 'care' or concern and the Being of the doctor in the relationship as concern for the patient and hence beneficence; this principle is in effect what the doctor is or ought to be. A good doctor ought to be beneficent. Rather than a principle, beneficence is thus a state of Being of a good doctor. Cassell55 defines a good doctor as one who is self-disciplined and trustworthy. Self-disciple is a resultant of the trust; it is a personal self-discipline as a reaction to the emotional involvement of the doctor as a person and also an attention to detail in the discernment of the disease process. Thus a diagnosis of pneumonia is not enough; one wants to know if there is any underlying cause such as a malignancy. A diagnosis of appendicitis is not enough; one wants to know whether there is some hidden factor which increases the risk for surgery. But self discipline and trustworthiness are involved more than simply control of details; constancy is also necessary. "Constant attention and maintained presence are not difficult when things are going well.,,56 It requires self-discipline when things are going wrong: when the patient has a difficult character or when the wrong diagnosis has been made. When constancy is lost the patient loses that new found stability arising from the physician-patient relationship, in the "uncertain world of sickness". The use of words trustworthiness, constancy, self-discipline, respect and even communication all relate to character traits of the doctor often reflected in virtues. Beauchamp and Childress57 conversely say that a person who does the morally
53 Ibid., p. 74. 54 Ibid., p. 76, 78. 55 Ibid., pp. 76-78. 56 Ibid., p. 78. 57 Beauchamp. T.L., Childress J.F., Principles of Biomedical Ethics, p. 375. 36 3 Phenomenological Roots of Principles required obligation need not be a virtuous person. If the act is right the actor is not blameworthy even though he may be a non-virtuous person who does not have any feeling for the patient. They affirm that a virtue-based theory is no better than an obligation-based theory in making a morally correct choice.58 They recite the case of the Cracow physician who opted for non voluntary active euthanasia so as not to let four immobile patients abandoned to the Nazi SS troops who were brutally killing all captives and patients. Whilst the physician was a virtuous person, noted by the fact that he could have opted to take a prepared escape route rather than stay by the side of the patients beds, being a person of good moral character did not help him make the correct moral choice. Indeed he chose a route which is blameworthy by his profession.59 Whilst on the one hand they do not refute virtue based theories but acknowledge them to be compatible and mutually reinforcing to principle-oriented theories (although not acknowledging a primary role), on the other hand the only support they provide in rebutting the emphasis on virtue and character to obtain the trust which is central to the doctor-patient relationship is Veatch's affirmation (which has already been shown limited in significance) that character will play a generally less significant role than principles and rules that are backed by sanctions.6o What Beauchamp and Childress do not address in the case of the Cracow physician was the very fact that it was his virtue which led him to the act. Indeed the conflict with normal rules put on him a great burden, but finally he acted in benevolence towards the patients. One may not agree with the act but it is significant that Beauchamp and Childress dO. 61 A doctor without virtue or who went strictly by rules would not have been better off in making a choice; indeed he may have allowed them to suffer the Nazi troops. Any choice could have been taken and not being a virtuous person he would not have been burdened either way. The virtuous doctor was willing to take on his shoulders an act considered wrong for the sake of those persons. Not to act would not have made him blameworthy for he could not take responsibility for the vicious acts of the Nazis. It is significant therefore that his act came through another act of self-denial; out of beneficence. And some moral decisions are made worse because there is no time to deliberate. It is virtue which provides the burden of the situation therefore; because of its very nature we find ourselves in dilemmas. Having clear rules, if they were at all possible, removes the burden and allows us not to CatTY out an act. Assisted suicide may be such a case; a rule oriented person may be against and therefore find no qualm in allowing a person to spend the last few hours in agonising pain. A virtuous person, involved phenomenologically with the patient may find it in his heart to attend to the patient's request even though it will cost him in front of his own beliefs and in front of society.
58 Ibid., p. 379. 59 Ibid., p. 378. 60 Ibid., p. 383. 61 Ibid., p. 378. 3.2 The Prineiple of Beneficence and Virtue 37
A moral dilemma arises for the virtuous person; if it arises for the rule-oriented then somehow their feelings have appeals to inner virtues which make them question those rules. Thus virtues come a priori in the moral decision. Whilst it would be a retrogressive step to ignore principles,62 beneficence as the phenom enon of the relationship needs to be the guiding rod for resolving conflicts amongst principles. This phenomenon is reflected in the 'good' doctor. If the doctor is to obtain communication (considered as the sine qua non63 to arrival at moral objectives), trust, obtained through virtues of compassion, interest, thoroughness, respect64 etc. need to be present a priori to any principle-oriented approach. Even when illness is not involved the physician cannot but enter with the phenomenon of his Being: beneficence. If this is the case then there is an argument for virtue to be one of the motive forces in resolving dilemmas whilst at the same time respecting the remaining principles. With this approach one has grounded one of the principles (beneficence) in the relationship.
3.3 Nonmaleficence
Clouser and Gert65 describe this principle as the only principle that does not have major problems. It can be reduced to a few simple rules, which whether using common morality (which they propose) or the four principles, are the same.66 They attribute this to the fact that it is not an invention of philosophy but a long standing principle of medicine.67 Nonmaleficence can conveniently be divided into prohibitive68 and iatro genic.69 The iatrogenic in turn can be divided into those caused on the individual (specific), and those caused to society (generai).70 Jack Dowie argues that the balancing of avoiding harm when trying to do good involves probabilities on the chances of a harm occurring and utilities on the outcome to quantify the relative desirability/undesirability?] However this thinking gets very complicated. One
62 Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship: the Need for a Better Linkage", p. 361. 63 Gillon R., "Client-Health Care Worker Relationships and Health Care Ethics-Introduction", in Principles of Health Care Ethics. p. 340, 64 Rakel R.E., "Establishing Rapport", p. 249. 65 Clouser K.D., Gert B., "A Critique of Principlism", p. 253. 66 Beauchamp T.L., "Principlism and Its Alleged Competitors", p. 188. 67 Clouser K.D., Gert B., op. cit., p. 253. 68 As an example, Steinberg A., "A Jewish Perspective on the Four Principles", in Principles of Health Care Ethics. p. 70. 69 Sharpe V., "Why 'Do No Harm '?", in The Influence of Edmulld D. Pellegrino's Philosophy of Medicine. ed Thomasma D.C., Kluwer Academic Publishers, 1997, p. 212. 70 Gillon R., "Preface: Medical Ethics and the Four Principles", p. xxiv.
71 Dowie J., "Decision Analysis: the Ethical Approach to Medical Decision-making", p. 427. 38 3 Phenomenological Roots of Principles could improve if there were reward incentives for those who analyse systemati cally.n In giving treatment one has to consider any potential social harms such as occurs with over-prescription of antibiotics73 or the potential side effects of genetic testing?4 Conversely nonmaleficence can be prohibitive in the general sense as occurs in the potential abuse to coerce individuals to donate organs as has been the concern in Pakistan75 and in the prohibition of families to take potentially harmful deci sions on their children, although there may be legal uncertainty and disagreement on this issue.76
3.3.1 Patient Authority or Trust
In order to understand what is the phenomenological root however of nonmalef icence one must examine how it relates to the physician-patient relationship. Clouser and Gert (above) have said that there exists no controversy over the principle because it is rooted in medical history and not in philosophy. Engelhardt does however try to ground it into philosophy by attributing it to the principle of permission.77 Since moral authority can be obtained only from actual agreements78 the principle of beneficence is not required?9 Beneficent acts are merely "meri torious" rather than "required". 80 Since nonmaleficence is a special application of 8 the principle of beneficence ! then the moral force of nonmaleficence is simply that the physician do not do anything which in the moral framework of the patient is harmful. It is justified by permission and if harm is to be avoided, this has to be stated in the agreement. Individuals may choose to convey trust to institutions either because they do not value their autonomy or because they agree with the morals of that institution.82 The only blameworthy omission is a breach of contract.
72 Ibid., p. 428.
73 Norris P., "Antibiotic Prescribing: Ethical Concerns", in Health Care Ethics USA vol. 6, no. I, 1998, p. 4. 74 Norris P., "Concerns about Genetic Testing: Is a Little Knowledge Dangerous?", in Health Care Ethics USA vol. 5, no. I, 1997, p. 2. 75 Zaki Hasan K., "Islam and the Four Principles: a Pakistani View", in Principles of Health Care Ethics, p. 100. 76 Dickens B.M., "Legal Approaches to Health Care Ethics and the Four Principles in Principles of Health Care Ethics, pp. 312-313. 77 Engelhardt H.T., Jr. The Foundations of Bioethics, 1996, p. 114. 78 Ibid., p. 73. 79 Ibid., p. 105. 80 Ibid., pp. 106-107. 81 Ibid., p. 114. 82 Ibid., p. 320. 3.3 Nonmaleficence 39
Engelhardt's views are however rather incoherent with the view that the patient is in a vulnerable position. Patients are expected to know beforehand what benefit they will get and harm that may be involved. Moreover doctors need not be affiliated to a professional body.83 But if doctors are not affiliated to a profession then the patient must devise his own agreement. If she omits to include nonma leficence, the doctor cannot be held liable. Moreover, in a free market Engelhardt's view does not put individuals on equal opportunity levels. Clearly if a pharmacist needs a doctor, she has a better understanding of the pharmacodynamics and pharmacokinetics of drugs and is in a better position to assess benefit and harm than a history teacher who may not know that the words pharmacodynamics and pharmacokinetics even exist, let alone know the difference and use them for knowledge of the treatment. Indeed he may not know the difference between an antibiotic and another drug, say, an anticongestant. Clearly some form of trust in the doctor is necessary. This position is taken by Pellegrino and Thomasma.84 Given the inequality that exists between the patient and the physician, the patient depends on the fiduciary role of the physician to avoid harm. They characterize the healing relationship into three elements. 85 First the 'act of illness', which calls medicine and health pro fessionals into existence; this gives rise to 'the act of profession'. When one enters the medical profession one makes a 'declaration' that he is part of the profession, possesses knowledge and is providing services. He is declaring that he has the knowledge and skill and that he will be acting in the patient's best interest. The physician thus invites the trust of the patient.86 The third feature is the 'act of medicine' or 'act ofhealing,.87 This joins the physician and patient together in the relationship and is the telos of the medical encounter. Virginia Sharpe says that the healing is right if it is technically, scientifically and logically sound. 88 The ontology of the healing relationship provides the broadest meaning of the maxim 'do no harm'; it is oriented to the patient's well-being. 89 It summons practitioners to be faithful to the trust they have invited.9o Thus for Pellegrino and Thomasma, nonmaleficence is not grounded in common morality but in the fiduciary nature of the relationship. Sharpe admonishes that with market forces on medicine today we risk losing the sight that patients are not merely consumers of health care but are
83 Ibid., p. 308. 84 Pellegrino E.D., Thomasma D.e. For the Patient's Good: The Restoration of Beneficence in Health Care, New York: Oxford University Press, 1988, Chap. 2-4. 85 Sharpe V., "Why 'Do No Harm'?", p. 202. 86 Ibid., p. 203. 87 Pellegrino E.D., "Toward a Virtue-Based Normative Ethics", p. 267. 88 Sharpe v., op. cit., p. 204. 89 Jonsen A.R., "Do No Harm: Axiom of medical Ethics", in Spicker S. and Engelhardt H.T. Jr., eds. Philosophical Medical Ethics: Its Nature and Significance. Dordrecht: Kluwer Academic Publishers, 1997 pp. 27-41. 90 Sharpe V.A., op. cit., p. 204. 40 3 Phenomenological Roots of Principles its direct object. Only with a fiduciary model do patients have legitimate moral expectations that medicine will serve their goOd. 91
3.3.2 Epistemology
So far three views on the ontology of non maleficence have been seen; that of Beauchamp and Childress which is grounded in common morality; that of Engel hardt grounded in libertarian philosophy and that of Thomasma and Pellegrino grounded in trust. The epistemology of medicine helps in identifying which of these three views truly represents the phenomenological roots of 'do no harm'. Urban 92traces the steps from the epistemology of medicine to its practical difficulties and conflicts.93 He notes that whilst sciences have produced knowledge about nature, medicine obliges one to act94 and that mathematical certainty in medicine never existed. While natural science helped in the past and still does today to solve the problems medicine faces, no one can predict a point in time when all problems will be solved. Medicine thus goes forward with a certain amount of uncertainty.95 There was a gradual transition of medicine in fact from an art to a science and indeed some believed it never would become a science since humanity was "too deeply involved" in it. 96 At the turn of the nineteenth to the twentieth century medicine was at most described as a 'practical science,.97 Karl Edward Rothschuh in asking where the origin of the obligation to act on well-founded knowledge commenced notes that the task of medicine is an 'unprovable determination' and therefore, lacking proof, cannot be called a science.98 The foundation of medicine is not scientific, it is found in the act. Wiesing argues that this fact is historically well founded. Medicine thus started with 'the act' to heal and built scientific knowledge as it went along. To act well in the individual case was thus historically always the primary task of medicine. The physician cannot remove the uncertainties of his profession but he can guarantee 'care' and 'conscientiousness'; demanding therefore a disposition or a virtue. Wiesing hence argues that when medical ethics considers the regulating of medical acting it will do so insufficiently if it does not consider the physician's disposition or virtue.99
91 Idem., p. 213. 92 Wiesing U., "Epistemology and Medical Ethics" in European Philosophy of Medicine and Health Care, Bulletin of the ESPMH, vol. 3, no. I, 1995, p. 5. 93 Ibid., pp. 6-13. 94 Ibid., p. 7. 95 Ibid., p. 9. 96 Idem. 97 Ibid., p. 12. 98 Ibid., p. 13. 99 Ibid., p. 15. 3.3 Nonmaleficence 41
Medical ethics is thus ethics of a special situation and historically it was based on viltues. The maxim 'primum non nocere' achieved an admonition to physicians to be careful how to act in view of the fact that scientific knowledge was not always available and there were always uncertainties. 100 Wiesing argues that even today in the face of new technologies whose application to medicine still has to be determined, such as somatic gene-therapy, these virtues can continue to help. An understanding of virtue as a starting point should not (he says) be founded in the 'nature' of medicine, as Pellegrino and Thomasma state, but rather on a more historical view: the 'culture' of medicine. 101 "There is no medicine as such, no 'true' medicine but a historically proved kind of medicine. This should certainly be examined carefully and its implications should be analysed." 102 Although Pellegrino uses his argument to propose that medical ethics should look into this tradition of medicine, the argument here is used to explore the phenomenological roots of nonmaleficence. It is clear from the foregoing that non maleficence is the result of uncertainty lying in choices of medicine. Even though science backs the physician, the latter is always faced with decisions of all sorts. There is no statistical study for every decision. Even statistical analysis then are simply guidelines which may not have included a parameter relevant to the case at hand and Sharpe notes, quoting studies from medical journals, how the last half of the twentieth century has brought increased attention to medically induced illness. 103 Such maleficence is certainly not the result of malevolence in a system of health care. 104C ontmumg.. e d ucatlOn . programmes cannot guarantee nonma lfie cence b ut can reduce it and is indeed a moral obligation of all physicians to provide better care. But it remains a fact that medicine started as and continues to be, an area of the humanities supplemented heavily by science which in its turn can obscure this origin. Nonmaleficence is rooted in the 'act' of doing good. It tells the physician, "Before you act see that you do no harm" and to "learn from the experience of colleagues". From a simple procedure of not moving a fractured limb (because scientific observation and reporting has taught that a nerve or vessel may be damaged turning a simple fracture to a compound one), to whether to operate an old man, experience always teaches. But all of medical knowledge cannot be put down to statistics. At the end of the day the physician is dealing with this patient who presents with parameters which may alter a clinical decision. The better one knows one patient as is humanly possible, the less chances of doing harm. Medical knowledge has accumulated enough to obscure this view. In this context Cassell
100 Ibid., p. 16. 101 Ibid., p. 17. 102 Ibid., p. 18. 103 Sharpe V., "Why 'Do No Harm'?", p. 212.
104 Habgood J., "An Anglican View of the Four Principles", in Principles of Health Care Ethics, p.61. 42 3 Phenomenological Roots of Principles describes a case of an old gentleman admitted with the diagnosis "sick old man". When bathed he could not be revived. 105 Nonmaleficence is thus a consequence of the act of beneficence. Its phenom enological roots lie historically in the virtue insofar as medicine was an art. 106 Although the nature of medicine has changed with the accumulation of scientific knowledge, the fact that someone approaches a physician with trust has not changed. Thus even if the content of nonmaleficence has come to rely more on scientific fact, it can never do so entirely, 107 and the structure of the 'act' of beneficence still depends on the virtue. 108 Nonmaleficence is a result of this virtue to act beneficently and is expressed more clearly in the virtue of trustworthiness. It is in other words an 'appearance', or 'manifestation' of beneficence. 109
3.4 Respect for Autonomy
Autonomy is the most discussed principle. It has perhaps become a household 1 name. Clouser and Gert 10 say it has become the 'centrepiece of principlism'. It is cited more frequently than any of the other principles and has taken 'a life of its own'. They say that there is a general confusion in understanding autonomy. III Indeed Beauchamp and Childress fail, for example, to distinguish between 'respecting' autonomy and 'promoting' autonomy.112 Someone may claim that since the patient is acting irrational, his autonomy may be over-ridden; conversely one may say that even though the patient is acting irrationally, the patient is competent and therefore refusal is an autonomous choice. This confusion is clearly seen among debates of the younger generation involved in bioethics, which has also led to confusion of the definition of Paternalism. This is seen as opposing autonomy and even beneficence. 113 Under this thesis, paternalism can never be beneficent. Nina Nikku argues, following Beauchamp and Childress' definitions of prima facie principles, that the two notions of promoting autonomy and respecting autonomy are prima facie equal. One 'trumps' over the other when it is more important in the circumstance. Thus to save one's life may be regarded as pro moting one's autonomy; therefore if the patient out of irrationality does not want
105 Cas sell EJ., The Nature of Suffering, p. 68. 106 Weising U., "Epistemology and Medical Ethics" p. 8. 107 Ibid., pp. 15-16. 108 Ibid., p. 15. 109 Heidegger M., Being and Time pp. 51-58.
110 C10user K.D., Gert B., "Morality vs. Principlism" p. 254. I11 Ibid., p. 257. 112 Ibid., pp. 254-255.
113 Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship: the Need for a Better Linkage", p. 357. 3.4 Respect for Autonomy 43 treatment one can trump 'respect for autonomy' by promoting autonomy (albeit sounding contradictory) if the net result is gain to the autonomy of the patient. In a criticism to this view Ivan Moselyl14 argues that such arguments are shallow and do not really solve the problem; he suggests seeing autonomy as a means and not as an end in itself. 115 He argues that actions in which informed consent is not appropriate need not be defined as paternalistic as they still require that the net result be beneficent. Nikku maintains that defining an action paternalistic may nQt necessarily be automatically unjustified but is a sign of warning and ethical analysis may be needed. I 16 Such arguments show how the concept of autonomy is relatively young to the field of medical ethics.
3.4.1 A Historical and Epistemological Perspective of Autonomy
Clouser and Gert say that the principle of autonomy probably caught on so strongly for two reasons: Kantian ethics and paternalism in medicine. 117 Immanuel Kant introduced the notion of autonomy, and the notion that physicians are paternalistic gave boost, or reason, for philosophy to invest its energies in health care and introduce the principle of respect for autonomy. Clouser and Gert note that on Kant's view one is not acting autonomously if one kills oneself or allows oneself to die as pleasure or pain are not part of the rational self and therefore cannot be allowed to determine one's actions. In contrast one of the major argu ments today for allowing people who are in intractable pain to make the choice of dying is the principle of autonomy. In tracing the history of informed consent Tom Beauchamp and Ruth Faden note that epistemological changes to what is in fact inferred by consent may prove perilous in interpretation. 118 Moreover one cannot simply conclude, from referral to patient consent in historical papers or documents, that true 'consent' was obtained or that there was any policy or practice of obtaining informed consent. 119 They contrast two recent historical analyses by historian Martin Pernick and psychiatrist Jay Katz. Where Katz sees no informed consent Pernick sees it in abundance. 120 Pernick notes that "truth-telling and consent-seeking have long
114 Mosely I., "Coming Up. Trumps: A Critique of Nina Nikku's Paternalism and Autonomy in Health Promotion", European Philosophy of Medicine and Health Care vol. 4, no. 1, p. 24. 115 Ibid., p. 23. 116 Nikku N., op. cit., p. 29. 117 Clouser K.D., Gert B., "Morality vs. Principlism", p. 257. 118 Beaucharnp T.L., Faden R., A History and Theory of Informed Consent, Oxford University Press: New York, J986, p. 54. 119 Ibid., p. 55. 120 Ibid., p. 57. 44 3 Phenomenological Roots of Principles been part of an indigenous medical tradition, based on medical theories that taught that knowledge and autonomy had demonstrably beneficial effects on most patients' health" However he emphasizes that nineteenth-century views differ both in content and in purpose from those entailed by modern concepts of informed consent which are more rights-oriented121 ; views supported by John Fletcher and the belief by judges in legal writings that cases of law suits in informed consent were not new. 122 In contrast to this Katz argues that the history of medicine has never respected the patient in the capacity of participating in choice of treatment. He is more concerned with meaningful conversation with the patient; he does not seem to be in disagreement that truth-telling and consent-seeking have long been part of medical tradition. 123 Pernick does not seem to be suggesting that there has been meaningful dialogue in the past; yet both he and Katz believe that they disagree. Pernick believes that Katz views differ from his own because of the methodology that Katz uses in tracing the history of 'informed consent' as if it were an isolated entity that could be extracted from its historical context. 124 Katz, unlike Pernick, has legal doctrine in mind. They both agree that the current controversy of informed consent is recent and that until about thirty years ago the justification for the practice was beneficence whilst now it is autonomy.125 Beauchamp and Faden affirm that consent and autonomy are scarcely men tioned in traditional historical writings of medicine. The major issue is truth telling. In ancient medicine the Greek religious sect Pythagoreanism-not secular Greek philosophical ethics-appears to have been the inspiration underlying Hippocratic thinking (although this has never been proved); from which envi ronment the Hippocratic Oath emerged. 126 Consent by patients is not mentioned. Yet it remains the first set of Western thought of medical professional conduct and remains the most influential today. It is principally based on beneficence towards the sick and in keeping them from harm and injustice. Medieval medicine is characterised by the Hippocratic tradition strengthened by theology-it advocated medical authoritarianism and obligations of obedience by patients. 127 Writings from these periods show that physicians were authorized to lie to their patients if it benefits them, always to promise a cure, but to tell the relatives the truth of the matter. Patients were conversely advised to obey whatever the surgeon had advised them. Pernick interpreted obtaining the patient's
121 Pernick M.S., "The Patient's Role in Medical Decisionmaking: A Social History of Informed Consent in Medical Therapy," in President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioural Research, Making Health Care Decisions, (Wash ington: U.S. Government Printing Office, 1982), vo!. 3, 3. 122 Beauchamp T.L., Faden R., op. cit., p. 56. 123 Ibid., p. 58. 124 Idem. 125 Ibid., p. 59. 126 Ibid., p. 61. 127 Ibid., p. 63. 3.4 Respect for Autonomy 45 confidence as obtaining their consent (although Beauchamp and Faden see this as over-reaching). However Pernick concedes that the recommendations of the time cannot be seen or interpreted to be invoking an autonomy model. 128 The Enlightenment period sees the writings of prominent physicians like Benjamin Rush who was a committed revolutionary and signer of the American Declaration of Independence, and John Gregory, one of Rush's teachers. Rush believed that doctors are to share information with their patients. His thoughts were 'rooted heavily in an Enlightenment philosophy'. 129 Believing that harm may be caused by unchecked commitment to Hippocratic beneficence, he recom mended truthful and comprehensive information, as well as educating the patient and the public. However nowhere does he refer to seeking consent. Moreover he saw patients as obliged to obey doctors' prescriptions and also that patients should never oppose the advice of their physicians. He also believed in the need for deception, especially when dealing with unenlightened patients. Although Beauchamp and Faden affirm that Rush's Enlightenment ethics was not a principle of respect for patients' decisions but a principle of truth-telling for the sake of medically beneficent outcomes, one should note that a changing of ideas in ethical medical conduct occurred pari passu with the onset of libertarian philosophies. Medical conduct and attitudes towards patients are therefore also defined by the times. Even Gregory, also an important Enlightenment figure and Professor of Medicine in the University of Edinburgh, in fact viewed the physi cian's role in traditional terms of beneficence but saw a duty in truth-telling and disclosure 130: "In effect, the principle of beneficence is invoked to develop the idea that the physician has a prima facie obligation of beneficence-not of respect for autonomy". Katz concludes that both favoured deception when enlightenment was not able to manage the physician-patient relationship. 131 In modern western medical practice we find Percival who mixed enlightenment medicine with the ideal of the Christian gentleman. Yet he also held that truth fulness should yield to beneficence in the critical cases. Rights never achieve the same status as virtues in his ethics. 132 Percival influenced considerably the first publication of the American Medical Association code of ethics.133 Yet in the inaugural address the physician Worthingtom Hooker criticised heavily physi cians' deception of patients. 134 The fact that Katz fails to mention Hooker135 is unfortunate and may be note-worthy of bias in such historical arguments.
128 Ibid., p. 64.
129 Ibid., p. 65.
130 Ibid., p. 66.
131 Ibid., p. 67.
132 Ibid., p. 68.
133 Ibid., p. 70.
134 Ibid., p, 71.
135 Ibid., p. 72. 46 3 Phenomenological Roots of Principles
Beauchamp and Faden thus conclude that although obtaining consent was practice for over one hundred and fifty years of the past medical American history, it was primarily for reputation and decency more than "concern for the autonomy of patients. Informed consent as a practice of respecting autonomy has never had a sure foothold in medical practice, as both Katz and Pernick would agree." 136 The autonomy model, in the light of history, is a novel idea and it is this model in fact which underlies the movement towards informed consent. 137 In the early twentieth centuries therefore the connection between consent and autonomy had yet to be made; consent was obtained only for benevolent reasons. 138 Informed consent first appeared as an issue in American medicine in the late 1950s and early 1960s. 139 Respect for autonomy and individualism were instances of the new rights orientation that various social movements introduced into society. Civil rights movements, including consumer rights, women's rights and rights of prisoners and mentally ill often included health care issues including right to care, reproductive rights and human experimentation. 140 At the same time the Nazi experience and the abuse of research subjects in the United States raised suspicions about the general trustworthiness of the medical profession. In fact the post war rise in awareness of the informed consent process may have been as much as result of changing social forces other than legal developments alone. 141 From what has been said thus far, it is implied that autonomy has does not have roots phenomenologically in medical practice; although it now incorporates ideas like consent which were used before by practitioners. Rather, autonomy has its roots in social rights movements. There is evidence of nascent thoughts in the enlightenment period, although patient issues remain largely confined and restricted by beneficence. It thus would not be incorrect to state that the phe nomenological roots of autonomy lie in post-modern liberal thought, as a con tinuation of societal forces which started mostly being noticed during the enlightenment. This can be supported by a horizontal look at cultural attitudes towards autonomy.
3.4.2 A Cultural Appraisal
The historical and epistemological analysis of autonomy can be said to be 'ver tical' approaches insofar that they discuss temporal changes. What is taken here to be a 'horizontal' approach are contemporary changes or differences in
136 Ibid., p. 74. 137 Ibid., p. 75. 138 Ibid., p. 76. 139 Ibid., p. 86. 140 Ibid., p. 87. 141 Idem. 3.4 Respect for Autonomy 47 interpretation across cultures. 142 When one speaks of a multicultural society one usually implies individuals from many nations and diverse religious groups.143 Yet multicultural societies also have movements and groups which may be composed of individuals from diverse religions and nations but which have in common a trait which distinguishes them from the rest and which leads to problems and issues of their own and which therefore also appeal to principles and rights. These can be called subcultures, but here the term is used to encompass all. Critics of 'mainstream bioethics' in the United States complain about the narrow focus on autonomy and individual rights arguing that most of the world embraces a value system that places the family, the community, or society as a whole above that of the individual person. 144 Ruth Macklin acknowlegdes that the intent of autonomy was to counteract the predominant paternalism on the part of the medical profession and there was no presumption that a family-centred approach was contrary to individual rightS. 145 Yet Nelson 146 argues that families need to be taken more seriously. In the United Kingdom, the social services take families to court for decisions parents take on behalf of their children. In some instances the child is forced to undergo operations to which the parents have not consented. Richard Nicholson 147 argues that courts have viewed such cases as maltreatment of children by the parents; a fact which is not the case. He relates the story of a couple who refused a heart transplant to their second child because of fear of family breakdown in dealing with the child afterwards. They had already had one child which underwent the procedure and had to be giving a large regimen of medication daily. Another issue is disclosure of information. Many cultures do not accept the predominant norm in the United States to disclose diagnosis of serious illness. Macklin argues that many interpret the principle of autonomy as having to tell the truth and thus impose onto the patient news which he or she may not want to know. 148 She argues that this is largely a misinterpretation of autonomy and that a doctor who decides not to tell a patient a diagnosis recognising the patient's fear of misunderstanding the diagnosis is still respecting autonomy.149 This shows how
142 By 'culture' it is not intended to refer only to racial and religious diversity, but includes also groups and movements (as are for example deaf people and the feminists respectively) insofar as they give rise to a culture of thinking which may give rise to questions of autonomy and rights. 143 Macklin R., "Ethical Relativism in a multi cultural society", in Kelln. lnst. Of Ethics 1.., vol. 8, no. 1, 1998, p. I. 144 Idem.
145 Ibid., p. 2.
146 Nelson J.L., "Taking Families Seriously", in Hastings Centre Report vol. 22, no. 4, 1992, pp. 6-12. 147 Nicholson R.H., "In The Family's Best Interest", in Hastings Centre Report vol. 27, no. I, 1997, p. 4. 148 Macklin R., op. cit., p. 2. 149 Ibid., p. 4. 48 3 Phenomenological Roots of Principles
misinterpreted the principle of autonomy is. 150 However when it comes to respecting autonomous decisions of people who hold cultural beliefs the question is not so simple. Such is the case for mercury sprinkling by Puerto Ricans (living in America) to send away bad spirits. They would argue that western people are imposing their form of scientific findings upon their religious practices. 151 Clearly, even in the United States respect for autonomy needs to have a broad meaning but does promote reflections on cultural differences and a favour toward tolerance. Literature shows that for the deaf community, be they a culture or not, the question of preservation of the community and hence the rights to respect the autonomy of the deaf arise from their reality of being deaf. 152 They oppose any beneficence which medical technology may be offering them. What is considered by some parents to be beneficent for their child is considered maleficent by the community. This points to another issue in finding the phenomenological roots of autonomy: the tension which exists between individualism and community. In African traditional ethics, autonomy, the ability to act and think independently is limited by the emphasis put on communalism. 153 The individual has obligations to the community and excessive individualism is regarded as 'denial of one's cor porate existence'. There is a high degree of Paternalism and an individual is expected to conform to the decisions of the community even in questions of health care. 154 In traditional health care it is common for the traditional healer or the family to decide what is good for the patient, even if it is against the her best interest. Beneficence thus has a higher value. 155 The rationale behind this rea soning is the 'vital force' principle. A sick person is considered to have a decrease in the vital force. Health care is meant to restore this force. 156 The vital force descends from God, through the ancestors and the elderly to the individual. It is thus society-dependent. 157 Cultural diversity can also lead to cultural judgement. Traditional female cir cumcision in Asian and African countries have been widely condemned by wes tern feminists, physicians and ethicists. 158 It is argued that even women who undergo such procedures voluntarily cannot be considered to be truly informed about the serious complications of the custom. Also children who are circumcised
150 Ibid., p. 3. 151 Ibid., p. 9.
152 Crouch R.A., "Letting the deaf Be Deaf. Reconsidering the Use of Cochlear Implants in Prelingually Deaf Children", in The Hastings Centre Report, vol. 27, no. 4, 1997, pp. 14-23. 153 Kasenne P., "African Ethical Theory and the Four Principles", in Principles of Health Care Ethics, p. 187. 154 Ibid., p. 188. 155 Ibid., p. 189. 156 Ibid., p. 191. 157 Ibid., p. 184. 158 Lane S.D., Rubinstein R.A., "Judging the Other. Responding to Traditional Female Genital Surgeries", in Hastings Centre Report vol. 26, no. 3, 1996, p. 31. 3.4 Respect for Autonomy 49 have no say in the matter. 159 However, many members of these societies do not view the practice as mutilation. Indeed to be called the 'son of an uncircumcised woman' or to call a woman uncircumcised is a terrible insult. They consider circumcision as an important preparation for marriage and womanhood. 160 In Europe the sociocultural context of medical practice has changed; there is an influence of American bioethics, although it still lags behind. 161 In southern Europe especially the emphasis is still on medical deontology. In general then medical ethics is more reflective than the American counterpart which tends to be analytical. 162 Not all are happy with 'American Bioethics,163: it has been accused of limiting itself to application of moral theories and principles to cases whilst the European approach is more appreciative of the fundamental 'internal morality' of medicine. 164 It is clear that for Europeans autonomy as a principle needs to be seen within a larger framework of medicine's morality and not simply a principle to be trumped or not by another principle. From the selective foregoing 'horizontal' view of autonomy it is clear that the conception of autonomy is still new and being defined even in the western world. Moreover its importance takes on a dimension of the culture concerned. Whereas for western cultures, especially the American, autonomy is very important, in Europe there is a 'phase difference' and in Africa autonomy is not all that important as to the libertarian mind. The question of autonomy has however given rise to debates of rights of subcultures and also a better understanding of tolerance in multicultural societies. When combining the conclusions of the historical and cultural appraisal of autonomy it would seem clear that the roots of autonomy lie phenomenologically in libertarian philosophy. Interpretations of autonomy by other cultures, such as the African, is an accommodation to the newly-found principle of autonomy. Even when one considers the main reason often invoked for autonomy as a response to paternalism one cannot but notice that such a response originated in the Western post-Nuremberg world. It is largely to the credit of US bioethics that autonomy as a principle evolved. Clearly it was noted that autonomy does not have roots in medicine. Part of what is today under the shelter of the principle of autonomy were originally to be found under the mantle of beneficence within the medical com munity. But the concept is purely a cultural philosophy of rights and freedom finding first-time expression in Immanuel Kant's philosophy of respect for the person. As noted by Gert and Clouser the meaning has changed with the times.
159 Ibid., p. 32.
160 Ibid., p. 35.
161 Ten Have H., "Principlism. A Western European Appraisal", in A Matter of Principles? p. 103. 162 Ibid., p. 104.
163 Holm S., "American Bioethics at the Cross-roads. A critical appraisal', in European Phi!. Of Med. and Health Care vol. 2, no. 2, 1994, p. 7. 164 Ten Have H., op. cit., p. liD. 50 3 Phenomenological Roots of Principles
Naturally the danger of these phenomenological roots are evident. If principles are to work within a framework based on the phenomenology of the physician patient relationship it is the principle of autonomy which has to be applied care fully in order to avoid errors of cultural judgement and tolerance.
3.5 The Dual Nature of Justice
It is argued that the phenomenological roots of justice lies in man's Being-with one-another. This entails a 'concern' or 'care' as defined earlier. Whereas within the health-care context this 'care' has been defined as beneficence, within society the definition 'care' (or 'concern') has changed. Vis-a-vis health-care there is a dual nature to justice; one defined on the phenomenology of the relationship (of medi cine) and one which is social and ever changing in interpretation. If the former does not rely on its phenomenological roots it stands the danger of taking the form of the latter. What this means in practice is that from the point of view of the health care relationship we can define justice through the goals of medicine. If these goals are defined through the phenomenological nature of medicine, the fate of justice in health care will follow suit. Conversely if we define the goals of medicine broadly as simply a servant standing to the capricious orders of society, defining justice in health care would be just as difficult as defining justice towards society. In this chapter these two faces of justice are overviewed within the scope of our dwelling into the nature of the doctor-patient relationship. The final chapter of this book will then deal more broadly with whether we should adopt a teleological approach to medicine or if a socially constructed theory is more appropriate.
3.5.1 The Justice of Society
In Greek mythology, justice (Dike) is a quality attributed to the godS. 165 Justice is essentially a moral quality, the natural tendency to obey the rules and laws of a civilised society and to treat other men to their deserts and is described by Simonides as, 'rendering to every man his due' .166 It is primarily social in its application. John Rawls refers to it as the first virtue of social institutions, as truth is to thought. 167 In a just society the liberties of individuals are taken as settled and the rights secured are not subject to political bargaining.168 Men disagree about
165 Grant M., Myths of the Greeks and Romans, The New American Library, pp. 89,91, 112, 170,184. 166 Plato., Republic, I 331e. 167 Rawls J., A Theory of Justice, p. 3. 168 Ibid., p. 4. 3.5 The Dual Nature of Justice 51 what is just and unjust but they understand the need for there to be a system which protects rights and sees to a fair distribution of the benefits and burdens of social co-operation. 169 Those who engage in social co-operation choose the principles of justice together, such as equality and fairness. 170 These principles are thus the result of agreement and bargaining.17! For Alisdair MacIntyre the "diversity of contemporary moral debate and its interminability are indeed mirrored in the controversies of analytical moral phi losophers. But those who claim to be able to formulate principles on which rational moral agents ought to agree, cannot secure agreement on the formulation of those principles from their colleagues who share their basic philosophical purpose and method". There is therefore once again, according to MacIntyre, prima facie evidence that their project has failed, even before we have examined their par ticular contentions and conclusions. Each of them in his criticism offers testimony to the failure of his colleagues' constructions."I72 Analytical philosophers decipher the meaning of human expression, which is why as a theory emotivism was rejected. And yet emotivism has not died and many philosophical writings reduce morality to personal preference, although the authors would not consider themselves emotivists. 173 Morality is not what it once was and it is just to say at many people act as if emotivism were true, no matter what their theoretical standpoint is. !74 If one were to contend that the roots of justice is only rationality, one cannot assert it has sound roots insofar as the disagreement between diverse rationalities has not led to a comprehensive justice acceptable to all. Yet humans seek a justice by their nature in order to be able to exist peacefully in relation to each other. In this state of Being-with-one-another, man stands in subjection to others. 175 Now in Being-with-one-another, each Being comes into a relationship of 'concern' with the Other as described above. There is here a concern for self as well as a 'concern' for others. Engelhardt observes that most appeals of justice can be understood as being at root a concern with beneficence. 176 Principles of justice that support the distribution of goods under a particular moral vision are special
169 Ibid., p. 5. 170 Ibid., p. 11. 171 Ibid., p. 12. l72 MacIntyre A., After Virtue, p. 21. 173 Ibid., p. 20. 174 Ibid., p. 22.
175 Heidegger M., Being and Time, p. 164. 176 Heidegger argues that in being with others, man's Being is taken away by the Others. "These Others are not definite others. On the contrary, any Other can represent them. The Others are those who 'are there' for the Being. In this Being-with-one-another, one's own being (Dasein) is dissolved completely into the kind of Being of the Others (the 'they'). Thus people tend to conform to an averageness of attitudes. The 'they' maintains itself in the averageness of that which belongs to it. Engelhardt H.T., Foundations of Biomedical Ethics, 1994, p. 121. 52 3 Phenomenological Roots of Principles instances of attempting to do the good. m There are divergent claims such as 'everyone his due' or a more ideal distribution of good. Some may appeal to rights, others to a more moral vision. But it seems quite clear that justice results from this 'concern' of Being-with-one-another.178 The phenomenological roots of justice is thus the nature of society itself; without it there can be no peaceful being-with one-another.
3.5.2 Justice in Health-Care
Daniel Callahan reminds us that during the 1960s and 1970s when the main social issue was justice and equality, little attention was given to the discussion about the ends of medicine. 179 Clearly there are two possible goals of medicine; one dealing with disease and its prevention and a second which includes also possible uses of advanced technology for enhancement, such as use of growth hormone and the use of genetic enhancements to improve physical appearance and intelligence. ISO While medicine still has the capacity from within significantly to determine its own course, it is highly influenced by the mores, values, economics, and politics of the societies of which it is part. 181 Whether the nature of medicine should be defined from within its own traditions or whether it should let society do this from the outside is still an open question. Of course a continuing dialogue is most plausible. 182 This is discussed further in the next chapter. Clearly the debate in phenomenological terms relating to justice is whether one should chose justice as relating to society or justice which finds roots in the phenomenology of medicine. If one is to relate principles to the phenomenology of the physician-patient relationship however, by default the choice would be the second, for attention to the sick would seem a more likely goal of medicine than physical enhancement. This does not exclude the possibility for further dialogue of course. One can understand this in relation to internal and external goods of medicine. The internal goods can be seen as curing of illness and prevention of disease; also palliative
177 Idem.
178 'concern' as justice is only one way of Being-with-one-another. It can also come as conflict or simply being part of the 'they': "This Being-with-one-another dissolves one's own Dasein completely into the kind of Being of 'the Others', in such a way, indeed, that the Others, as distinguishable and explicit, vanish more and more. In this inconspicuousness and unascertain ability, the real dictatorship. of the 'they' is unfolded. We take pleasure and enjoy ourselves as they (man) take pleasure ... " Heidegger M., op. cit., p. 164 179 Callahan D., "Is Justice Enough? Ends and Means in Bioethics", in Hastings Centre Report, vol. 26, no. 6, p. 9. 180 Callahan D., Project Director, The Goals of Medicine, p. SS. 181 Ibid., S6. 182 Ibid., S7. 3.5 The Dual Nature of Justice 53 care and prevention of premature death. IS3 Extell1al goods would be acceptable non-medical uses of medical knowledge and uses of medicine under some cir cumstances such as improving upon natural human characteristics. 184 The pursu ance of these non-medical goods cannot be condemned under a phenomenological approach; but certainly not to the detriment of intell1al goods. Medicine has a relationship with business and economy, which can be said to be fundamental forces behind it. To let these forces use medicine only to their ends would jeopardize the intell1al goods; to exclude them completely would also be limiting supply of technology and pharmaceuticals for the same intell1al goods and hence also endangering it. What is necessary is a justice which reaches a symbiotic relationship. The Project Group of the Hastings Centre recommend an honourable medicine directing its own profession which is affordable, socially sensitive and pluralistic; a medicine that respects human choice and dignity.185 Insofar as these are goods intell1al to medicine, the justice which they seek can be said to have roots in a phenomenology of the relationship.
183 Ibid., S9-S14. 184 Ibid., S 15.
185 Ibid., S24.
Chapter 4 Principles as a Consequence of the Relationship
4.1 Need for Grounding Principles in the Relationship
Pellegrino was the first to point out that principles become obligations, not merely check lists when grounding them in the nature of medical activity.l The obliga tions that arise from the nature of the relationship provide the theoretical grounding lacking in the approach through prima facie principles. Beneficence becomes a requirement not of a system of philosophy applied to medicine, but of the nature of medicine; it encompasses the whole of the patient's well-being. He notes that the teleological approach which he describes does not by itself constitute a system of medical ethics; rather this approach has to link obligations and its primary principles to virtue ethics and incorporate insights from casuistry, moral psychology and experiential ethical systems? Full accounts of the moral life, palticularly as it regards judgements, accountability and justification, require an integral assessment of the four elements of a moral event: the agent, the act, the circumstance, and the consequence in relation to each other? "Today's challenge is not how to demonstrate the superiority of one normative theory over the other, but rather how to relate each to the other in a matrix that does justice to each and assigns to each its proper normative force".4 Although there is little hope of reviving virtues in general ethics, he sees a definite possibility in professional
I Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship: the Need for a Better Linkage", p. 363. 2 Ibid., p. 364. 3 Pellegrino E.D., "Toward a Virtue Based Nonnative Ethics for the Health Profession", p. 273. 4 Humorously he adds that he is "not suggesting a feeble eclecticism, a cafeteria-style ethics, that would add a spoonful of virtue here, a principle there, and a dash of consequence in another place. Nor do I suggest a formless syncretism based in egregious compromises for the sake of a unity that enervates conflicting theories. Rather, the strength of each theory must be preserved, drawn upon, and placed in dynamic equilibrium with the others in order to accommodate the intricacy, variety, and particularity of human moral acts."
P. Mallia, The Nature of the Doctor-Patient Relationship, SpringerBriefs in Ethics, 55 DOl: 10.1007/978-94-007-4939-9_4, © The Author(s) 2013 56 4 Principles as a Consequence of the Relationship ethics where a telos is involved. Whilst the good of society is difficult to define, a telos for medicine-the good of the patient-is clear to all.s Howard Brody6 is convinced that 'formal frameworks', for all their value, need to be supplemented with other ethical approaches based more on interpretation and judgement than on algorithm and formal deduction. Whilst the formal approach relies on a small number of general principles for decisions, a 'narrative' approach would require a detailed inquiry into its historical and cultural context.7 Conversely whilst in the formal approach the energy is focused on rational manipulation of the principles, in the narrative approach ethical analysis can be rational and rigorous but not according to the deductive and mathematical models. Rather it relies on 'inter pretation' of the particular facts of the case within the specific context and history and on 'reasoning by analogy' with other cases, to see the similarities and draw insights into the resolution of the case. In this approach one cannot simply identify key facts of the case but has to give a detailed account in order to illustrate them all. Before one hears this detailed account one cannot give any decision as one would not have predicted exactly which aspects of the case have moral weight. Issues of moral character are also critical; "and these involve questions of what it means to live a complete life in such a way that one's actions embody core moral values and com mitments. One is likely, after the process of detailed enquiry, to find oneself iden tifying emotionally with the participants. This is an aid to ethical insight and not a threat to objectivity. One tries to decide by giving a very detailed story.s When applying the four principles to a particular case we need somehow to connect and link these "abstract and general ideas" into concrete circumstances and actions.,,9 Larry Churchill warns however, that the focus should not be on the relationship itself but on the patient. 10 Doctors can best embark on therapeutic encounters not by making the relationship with the patient central but by focusing on the patient's needs. He directed this criticism not towards Pellegrino's philosophy of medicine but rather to a 'white paper' which had been published which sounded to him rather paternalistic. He means that the concern should not be on the methodology of the relationship but on the patient who forms part of the 'damaged humanity'. In this the report however, did not portray to understand Pellegrino's philosophy."
5 Ibid., p. 274. 6 Brody H., "The Four Principles and Narrative Ethics", in Principles of Health Care Ethics, p.207. 7 Ibid., p. 208. S It is interesting to note that when people have a difficult decision to take, whether of moral character or not, many find themselves speaking with others in a sense of relating all the details. Indeed many realise the importance of this and use it as a 'tool'. Relating the same story over and over will bring out further insights which will ultimately help. In the final choice or decision. 9 Ibid., p. 214. 10 Churchill L.R., '''Damaged Humanity': The Call for a Patient-centred Medical Ethic in the Managed Care Era", in The Influence of Edmund D. Pel/egrino's Philosophy of Medicine, p. 115. 11 Indeed by focusing on the patient one is phenomenologically creating the relationship; but in the sense the aim is at the 'end' of the relationship. (the 'telos') and not on the means. 4.1 Need for Grounding Principles in the Relationship 57
David Thomasma says that for too long medical ethics has been drifting toward resolution of conflicts and dilemmas without a proper theory of resolution and to practical decisions without a proper theory of praxis. 12 These lead to cultural, ethical and historical relativism which can be very destructi ye. A moral philosophy of medicine is thus required. 13 Conversely, Eric Cassell says that medicine is fundamentally a moral enterprise because it is devoted to the welfare of the person it treats. 14 Although primarily therapeutic it does not have science at its roots. Rather it is a field where science and morality are joined. Science cannot domi nate; it must be conceived as being something fully responsible to human needs. "A systematic basis for a return to ideals of physicianship in medicine ... cannot be created without a deeper understanding of the goals of medicine. 15 This includes, he says, a knowledge of the nature of suffering and the full implications of what is required for its relief: understanding, training and theories of medicine; that pathophysiology alone does not work. 16 "The goal is to find out what is happening in the body (pathophysiology) as well as who the patient is; to uncover what (about the pathophysiology, the patient, or the context) threatens the patient, and why it does so at this time." 17 Doctors have to know more about the sick person and the illness than just the name of the disease and its pathophysiology. 18 Beauchamp l9 reassures us that the theory of the Four Principles and other theories (virtue, impartial rule-based, casuistry) are all compatible but with different emphasis. But what exactly does he mean by compatible? Is it simply that they have the same aim? Or can they be incorporated into each other? The job of grounding the four principles in the phenomenon of the physician-patient rela tionship is now attempted with the hope of shedding light on these questions.
4.2 Defining the Ontological Entities
Important aspects of the physician-patient relationship are discussed by consid ering both physician and the patient as entities separately and then important phenomenological aspects of what makes up the bond, or linkage, in the rela tionship. To do this selected arguments of 'Being' from Heidegger are again taken and applied to each in turn. Phenomenology being the science of 'being' of entities
12 Thomasma D.e., "Antifoundationalism and the Possibility of a Moral Philosophy of Medicine", in The Influence of Edlllulld D. Pellegrillo's Philosophy of Medicine. p. 128. 13 Idem.
14 Cas sell E.J., The Nature of Suffering. p. 28. 15 Idem,
16 Ibid., p. 152. 17 Ibid., p. 155. 18 Ibid., p. 156.
19 Beauchamp. T.L.. "Principlism and Its Alleged Competitors". p. 195. 58 4 Principles as a Consequence of the Relationship
(ontology),20 this base is important. Casse1l 21 and other authors quoted in the passage point out important aspects of the nature and phenomenology of both the doctor and the patient (and indeed these quotes form a good part of the argu mentation). However, they do not go to the root of terms such as 'understanding', 'choice', 'communication', 'empathy', etc., as understood through the philosophy of phenomenology and then applied to the science of the relationship. Sciences are ways of Being in which the entity that questions (Dasein) comports itself towards entities which it need not be itself?2 Phenomena may be covered up in the sense that they have been undiscovered or had been discovered and forgotten. Heidegger calls these the most dangerous:
This covering-up can become complete; or rather - and as a rule - what has been discovered earlier may still be visible, though only as a semblance. Yet so much sem blance, so much 'Being'. This covering-up as a 'disguising' is both the most frequent and the most dangerous, for here the possibilities of deceiving and misleading are especially stubborn. Within a 'system', perhaps, those structures of Being - and their concepts - which are still available but veiled in their indigenous character, may claim their rights. For when they have been bound together constructively in a system, they present them selves as something 'clear', requiring no further justification, and thus can serve as the point of departure for a process of deduction. 23 This passage immediately brings to mind what may have happened to the concept of the physician-patient relationship. One often finds reference to the relationship as a phenomenon24 and one finds no challenge to this term as it is applied. Yet this fact is largely ignored in models of the physician-patient rela tionship25 (it is partially 'covered-up' so that what remains is a 'semblance'). Indeed, if this is correct, the dangers of 'deceiving and misleading' have been portrayed in the relationship as being referred to as nothing but a 'contract'; and even a contract which forms its own morals as recommended by Engelhardt. These misleading deceptions "are especially stubborn". It is hoped that the arguments presented can to some extent 'bind together' those structures of the Being of the doctor and of the patient "constructively in a system ..... as something 'clear'''. The meaning of phenomenological description as a method lies in interpreta tion. "Phenomena, as understood phenomenologically, are never anything but what goes to make up Being, while Being is in every case the Being of some entity,,?6 The 'entities' in the context of the physician-patient relationship are the 'physician' (or 'doctor'-the terms are used interchangeably) and the 'patient'.
20 Ibid., p. 61.
21 Cas sell EJ., The Nature of Suffering alld the Goals of Medicine, Oxford 1991 22 Heidegger, M., Being and Time, p. 33. 23 Ibid., p. 60. 24 Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship: the Need for a Better Linkage", p. 362. 25 The contract models of Veatch and Engelhardt are clear examples. 26 Heidegger M., op. cit., p. 61. 4.2 Defining the Ontological Entities 59
Thus we have two ontological entities and therefore they must be treated separately before seeing how they relate into the 'ontical entity' of the relationship itself. 'Hermeneutics' being the study of interpretation, the phenomenology of Dasein (and hence of the doctor and the patient) is a hermeneutic. Furthermore Heidegger points out, "to the extent by uncovering the meaning of Being and the basic structures of Dasein in general we may exhibit the horizon for any further ontological study of those entities which do not have the character of Dasein, this hermeneutic also becomes a 'hermeneutic' in the sense of working out the conditions on which the possibility of any ontological investigation depends". 27 What this translates to is that through the meaning of 'doctor' and 'patient', one may uncover the phenomenon (and hence the interpretation-through the phe nomenological description) of the doctor-patient relationship. Admittedly only relevant characteristics of the doctor and patient are chosen, but through these those characteristics which interpret the relationship become relevant. Thus what makes up the doctor in his 'understanding', 'considerations', 'empathy' etc. and the patient in his 'deprivation', 'fear', 'concern', 'depression', reveals the nature of how one comes to relate to the other (Being-with-one another), to the relationship itself. From this one may arrive to a better understanding of Beneficence, Autonomy (as its manifestation), and Justice not only as principles but as parts inherent in the relationship. From this one sees how they become obligations as Pellegrino asserts. To be sure, Being as 'care' has already been described and interpreted as beneficence which in turn was described as the phenomenological entity of the relationship itself. This will not be repeated; but further expansion on 'commu nication', 'understanding' etc. will allow a better description and elaboration of beneficence in the doctor-patient relationship. In so doing one will be accounting for principles within this (what will be interpreted as) teleological approach.
4.3 The Physician as an Entity
As has been mentioned Pellegrino and Thomasma ground their theory in three phenomena of the healing relationship: the act of illness, the act of profession and finally the act of healing?8 When persons become patients they acknowledge that they sufficiently are ill enough to seek help. This act of illness leads then to the necessity of the act of a healer. We have seen how Cassell points out to us that what a society can consider a healer varies. 29 In some societies it may be a witch doctor. For our society it is the doctor. This doctor has a history and tradition. A doctor does not learn as an apprentice as was the case in the past, although
27 Ibid., p. 62. 28 Pellegrino E.D., "Toward a Virtue Based Normative Ethics for the Health Profession", p. 267. 29 Cas sell E.J., The Nature of Suffering, p. 66. 60 4 Principles as a Consequence of the Relationship communication and peripatetic teaching during ward rounds still form a good part of medical education. Essentially there are three ways in which a doctor can learn: learning from watching and listening to older or more experienced (or specialised) colleagues; through the literature, from which he leal11s of the experiences (including trials and experimentation) of colleagues across the world and from the past; and finally from his or her own hands-on experience. The last falls into two parts-one as a trainee (formally), the other as a practising physician. In this last sense he leal11s not only about illness but also about patients and people. Accumulated knowledge is transmitted and made 'uniform' in medical schools so that medicine has come to be perceived as a science. It was discussed however (when dealing with the phenomenological roots of nonmaleficence), that medicine is essentially a humanistic field which has put on the tool of science. This has brought on the act of profession (in contrast to the act of healer). Finally after the encounter with the patient the act of healing takes place. The doctor comes of necessity in this dual mode therefore: as a human being and as a professional.3o By a professional he is attesting that he has met certain requirements and standards, and is telling the other person to trust him. As a person he comes with the possibility of understanding. Understanding requires knowledge and empathy. Understanding as a person is different from understanding as a profession. As a professional he has put on the tools of science and technology which he can convey to the patient. For many ailments this alone may be sufficient; but to 'understand' the person in his or her suffering, weakness and in the nature of helplessness the doctor involves himself as a human. It shall be pointed out that for beneficence and autonomy to be realised in their fullness, one needs to involve oneself in a special communicative process which leads to mutual discel11ment. Not only, but in the act of the doctor and the act of the patient, autonomy becomes dependent on beneficence so that true autonomy, even after being given legal dimensions to its definition, is a result of trust in beneficence. Indeed the person giving this beneficence has a manipulative role which only by virtue is put aside. The process of understanding is a process of understanding the patient as a being, an entity (and thus a phenomenon). Depth can only be achieved by detailed commu nication and understanding not only of the relevant facts but also of peripheral facts which will in fact reveal themselves after an elaborate 'narrative,?1 The validity of this last statement is now analysed.
4.3.1 Levelling-Down of Medical Relationships
For a person in general, Being with others belongs to the Being of Dasein,32 "which is an issue for Dasein in its very being. Thus as Being-with, Dasein 'is'
30 Ibid., p. 74. 31 Brody H., "The Four Principles and Narrative Ethics", pp. 207-216. 32 Heidegger M., Being and Time, p. 160. 4.3 The Physician as an Entity 61 essentially for the sake of Others". Even if the person does not turn to others, his existentiality lies in this being-with. Because of this, a person's understanding of oneself implies an understanding of others.33 "Knowing oneself is grounded in Being-with, which understands primordially. It operates in accordance with the kind of Being which is closest to us-Being-in-the-world as Being-with; and it does so by an acquaintance with that which Dasein, along with the Others, comes across in its environmental circumspection and concerns itself with-an acquaintance in which Dasein understands." Thus because of the existential nat ure, and not because of any knowledge that comes from the other, one being knows the other. The entity which is the other has the same kind of being as (Dasein)?4 Through this one can come to understand the 'psychical life of Others'-"In this phenomenally 'proximal' manner it thus presents a way of Being with one another understandingly" .35 This phenomenon is known as 'empathy', which provides the first ontological bridge.36 This has important implications often ignored in the physician-patient rela tionship. The physician has the possibility of empathising-with the patient because of the very fact that in essence they are of the same nature. Although this is too obvious it is in reality the first thing which is ignored in many relationships. He idegger explains how in reality this possibility of empathy, of fullness of rela tionship fails to hold. Because besides Being-with, Dasein is a Being-with-one another, which is not a sum of Being-with of a number of subjects. The latter presupposes a hermeneutic of empathy; the former simply a coming-towards one another (in the sense that "Being-with 'reckons' with the others without seriously 'counting on them', or without even wanting to 'have anything to do' with them" .37 This can be applied purely (or compared) to much of the technically- and sci entifically-based medicine of today. In coming towards patients as 'entities with a disease' or 'entities with symptoms' to be interpreted there has been a doing away with the necessity of true empathy with the sufferer or troubled patient; even if used it is seen as superftuous38 though a lot of lip-service is paid. The total possibility of the relationship does not occur in most everyday relationships. This Being-with-one another dissolves one's own Dasein completely into the kind of Being of the 'Others' which one encounters casually. The relationships to these 'Others' (the 'they') gives a 'distantiality' of relationships,39 grounded in the fact that Being-with-one-another concerns itself with averageness, which is the essential characteristic of the 'they' .40
33 Ibid., p. 161. 34 Ibid., p. 162. 35 Ibid., p. 161. 36 Ibid., p. 162. 37 Ibid., p. 163. 3S Beauchamp. T.L., Childress J.F., Principles of Biomedical Ethics, p. 375. 39 Heidegger M., op. cit., p. 127.
40 "We take pleasure and enjoy ourselves as they (man) take pleasure; we read, see, and judge about literature and art as they see and judge ..... " (Idem.) 62 4 Principles as a Consequence of the Relationship
'They' is 'man' in general. There is a "levelling down" of all possibilities of Being. In other words relationships become superficial. In the medical environment which handles many patients every day this levelling-down is seen in the uniformity of medical management; in the conformity of medical education, in hospital admin istration and construction etc. "Distantiality, averageness, and levelling down, as ways of Being for the 'they' constitute what we know as 'publicness'. Publicness proximally controls every way in which the world and Dasein get interpreted" .41 In Dasein's everydayness the agency through which most things come about is one controlled by the 'they'. Medicine has become a form of 'publicness'. 'They' in the sense of the present argument can be taken as the medical community. In its becoming uniform and in its averageness, 'they' (the doctors) do this and this in such and such a situation. This is the existential state of doctors, of the medical community, today. Each doctor has taken on a 'they'-self instead of the potential authentic self.42 The doctor has been dispersed into the 'they'. This dispersal is the 'subject' of that kind of Being (doctor' s-Being) which we know as concernful. This 'they' describes (or dictates) the way in which doctors should interpret the world. That there is a tendency to 'average' things cannot be disputed. The very search for 'algorithmic' solutions to moral problems and comparing of cases attests to this. We need a simple way of tackling moral problems. But moral choices lie within the mind of the Being which is the patient. It is the patient who has to come to terms and decide what to do. Even in a state which accepts abortion, a woman who herself accepts abortion if her foetus is not normal, can find it difficult to make a choice.43 What is necessary is a return to Being-there as Understanding, which is the existential Being of the Doctor's own potentiality-for-Being; and it is so in such a way that this Being discloses in itself what its Being is capable of.44 In doing so it gives possibility to the potentiality-for-being of the patient. Underlying everything is the search for an 'authenticity' of the doctor-patient relationship.
4.3.2 Being as Understanding
What has been suggested thus far is that the Physician as entity and as Being has the possibility of understanding the Patient insofar as they have the same pri mordial nature as Beings. This understanding is empathy; which is not the action of empathy referred often to in psychology and counselling (which is an action)
41 Ibid., p. 165. 42 Ibid., p. 167. 43 Zaner R.M., "Experience and Moral Life: A Phenomeno10gical Approach to Bioethics", in A Matter of Principles?, pp. 211-236. ' 44 Heidegger M., op. cit., p. 184. 4.3 The Physician as an Entity 63 but an empathy resultant from the very nature of being. The accumulation of scientific and technical knowledge has reduced this understanding to an under standing of the diseases and their symptoms and signs. In reality therefore the possible empathy fails to hold because they have been levelled down to aver ageness dictated by an accordance to 'correct medical practice'. This is how the they (medicine as a community) has made publicness (in the Heideggerian sense) out of medical relationships. One should clarify that as such there is nothing wrong with this publicness, even if it deprives a lot of the potential humanity which can go into every physician-patient relationship. As long as a doctor deals safely with signs and symptoms and makes correct diagnoses and treatments, the medical (albeit tech nical) job is done well. Moreover there is a lot of bonding which goes into a physician-patient relationship anyway simply because of its nature.45 This is pursued in the subsection of the patient as entity below. When confronted with a dilemma the patient is confronted with a choice. The physician can consider such a job as not part of his work. Surely however, if the relationship is to have its complete value and potential it must help the patient confront this choice. It does so with the possibility of understanding the hermeneutic of the whole situation. In the case history given by Richard Zaner46 the woman is confronted with a choice of whether to abort or not. The doctor explains to the ethicist (which was Zaner himself) that the patient seemed annoyed at the suggestion of abortion when all tests where indicative of her baby being born with a neurological deficit. There was also a time limit within which the abortion would have had to occur. The dilemma for the woman was not the abortion itself however, but the risk that the tests may be wrong and she and her husband would kill a healthy child. Conversely if the child were handicapped and they let it live they felt that it would be unfair to bring a child into the world with everything against it. This was revealed by bringing out the details (narrative) of the situation.47 This narrative can only come forth if the doctor deliberately takes the step to involve himself in a more
45 Cassell E.J., The Nature of Suffering, p. 66. 46 Zaner R.M., "Experience and Moral Life: A Phenomenological Approach to Bioethics", pp. 213-215. 47 A similar situation is illustrated in the narrative brought our by a patient in the following case. A girl who attended the clinic regularly presented with amenorrhoea and subsequently found to be pregnant. Her first reaction was to look for an abortion. When asked and probed what was truly troubling her she found for herself that indeed she loved her boyfriend, was ready to have the baby and ready to marry him. Her problem was she was young and without finances. Moreover her greatest fear was her step-mother. It transpired that her step-mother beat her regularly and called her a prostitute. Her two step-brothers abused her sexually; a fact which the step-mother always denied-and thus the accusations. Amidst all this the father tried to maintain neutrality. Along with the mother of a close friend of hers' we convinced her to look for a place to live, not rush into marriage and leave her stepmothers' home. We also told her to see the parish priest and see what he thought. He actually arrived to the same conclusion. She had her baby and eventually married the father. 64 4 Principles as a Consequence of the Relationship
'primordial' communication-by understanding himself what the patient is feeling and bringing forth all the narrative. If medicine poses dilemmas to patients then it stands to reason that doctors should involve themselves more deeply to understand the patient; this should be a part of the doctor's Being. As a human being, the doctor can come to an understanding of self and through this understanding, understand the position of the patient. Understanding is a primordial state of Being48 when interpreted as part of the existential nature of Being; conversely it is an existential derivative of the primary understanding when it is interpreted as one possible kind of cognising among others. In its existential understanding therefore, the Being understands its potentiality-for-Being.49 The understanding presses forward into possibilities because it exists in a state of projections. 50 In its projective character, The Being goes to make up existentially its "sight" .51 This sight can refer to a self-knowl edge; which it does so by Being-alongside the world and Being-with Others.52 It is rooted thus in an opaqueness of self, which it projects itself to understand and thus 'sees', coming to a clearedness. However, this opaqueness is rooted not only egocentrically in self but also in a lack of acquaintance with the world. According to Heidegger 'intuition' and 'thinking' are both derivatives of understanding. In coming with an acquaintance of the hermeneutic of the Patient, the Doctor can 'see' (or help the Patient to 'see'). This sight refers to an understanding and interpreting of the situation, for interpreting is grounded on understanding.53 Assertion is a derivative mode of interpretation. That which is articulated as such in interpretation is the meaning. Assertion therefore has meaning.54 Heidegger phenomenologically arrives at the definition of assertion as a "pointing-out which gives something a definite character and which communicates" .55 Naturally Heidegger referred even to simple understanding of statements like "the hammer is heavy". As such one may say that this is irrelevant to the situation of the patient. And yet it is very relevant for its simplicity. It points out that interpretation can only come through a clear understanding of what is ready-at hand. The doctor can limit himself to understanding and interpreting signs and symptoms and interpret with what he already has as part of his state-of-mind (medical knowledge); conversely he can interpret deeper by his state as another human being. In doing so he comes into an empathy with the patient. But to do this one must go beyond a simple lay-out of the medical facts into the experiential nature of the patient.
48 Heidegger M., Being and Time, p. 182. 49 Ibid., p. 183. 50 Ibid., p. 185. 5i Ibid., p. 186. 52 Ibid., p. 187. 53 Ibid., p. 195. 54 Ibid., p. 196. 55 Ibid., pp. 196-199. 4.3 The Physician as an Entity 65
'Concern' for a doctor can have two meanings: a 'concern' for (or with) the medical facts. This is good medicine insofar as the 'they' are concerned. It is a mode of coming into contact with everyday work. Conversely the doctor can come into a deeper 'concern' by understanding existentially the patient in this situation. This method helps in understanding choices which pose dilemmas: from the choice of whether to carry out an operation or take radiotherapy, to a moral choice. The doctor can exchange information and explain that when he says for example, "the chances are .. " he means 95 % and not 50 %, a quantification which the patient may understand better. Such a 'concern' is a better interpretation of 'care' in the sense of beneficent care. The doctor has the potential-for-becoming a beneficent entity (beneficence itself) if he/she so chooses. This is a true respect for autonomy. If the patient is to make an autonomous choice he needs enough knowledge to help make that choice and interpretation. Only the doctor is in a position to provide such material and help in the interpretation. This is now looked further into.
4.4 The Patient as Entity: Potential for being Truly Autonomous
A patient is a mixed bag of needs sought for in the doctor. The doctor is approached in a state of 'hope', of expectation. What is required from the doctor first and foremost is a state of concern and to be understanding. A suffering patient may have fear; seeks understanding both of the disease and his or her future potentiality-for being, which indeed may mean a search for a new discovery for meaning, which may project back to a revision of the primordial understanding of existential nature. What is the significance of the cancer? What will life be without a limb? How will this pregnancy test change my life? That which is unmeaningful can be absurd:
This interpretation of the concept of 'meaning' is one which is ontologico-existential in principle; if we adhere to it, then all entities whose kind of Being is of a character other than Dasein's must be conceived as unmeaning, essentially devoid of any meaning at all. Here 'unmeaning' does not signify that we are saying anything about the value of such entities, but it gives expression to an ontological characteristic. And only that which is unmeaning can be absurd. The present-at-hand, as Dasein encounters it, can, as it were, 56 assault Dasein's Being; natural events, for instance, can break in upon us and destroy US.
The disease and the suffering are entities which need to be given meaning; ifnot they remain something absurd. Svenaeus speaks about 'at homeness' in this 58 regard. 57 He re-iterates this argument in a more recent article where homelikeness
56 Ibid., 193.
57 Svenaeus, F. The izermeneutics of medicine and the phenomenology of health. Linkoping: The Tema Institute, Linkoping University, 1999. 58 Svenaeus, F. Illness as unhomelike being-in-the-world: Heidegger and the phenomenology of medicine. Medicine, Health Care and Philosophy, 2011, 14, pp. 333-343 66 4 Principles as a Consequence of the Relationship is an ontological state of an authentic existence. 59 Rolf Ahlzen, in the same issue of Medicine, health Care and Philosophy, comments on the difficulty, as a General Practitioner himself, of converting a philosophical approach to homelikeness into normal clinical practice, although he finds the concept as interesting and perhaps promising.6o Certainly a disease is always an (ontological) assault on the person,61 but we must not forget that defining health is not easy and certainly a large section of the world's population live with chronic diseases and must identify with their illness whilst still living an authentic 'homelike' existence. It can perhaps be argued for the 'assaulting' diseases which take our daily lives away. But to enter into a philosophical debate on all the biopsychosocial aspects of illness can be very SUbjective to the individual on whether the authenticity of ontological existence, or at least the extent to which, is absent or reduced. Whether it is possible to do so or not, the doctor plays a key role into providing as much material as possible to provide an understanding and hence a meaning. The Patient can affront a Doctor in a state of 'fear'. The fear of having a disease. Phenomenally the fear is of the detrimentality of the 'fearsome,62-the disease entity. The target is the Being itself; the fearsome not yet within striking distance; it mayor may not strike-but it is approaching and the closer it gets the stronger this 'it mayor may not strike' becomes. That which fear fears about is that very entity which is afraid-Dasein.63 One can 'fear for' Others. Yet this fearing for others is truly a fearing-for-oneself in the sense of being apprehensive that one's Being-with with the Other is tom away. Fearing-about is therefore not a weaker form offearing, for although it knows that in a certain way it is unaffected, it is affected in so much as the being-with for which it fears will be affected. Hence a relative of the patient may express the same fear as the patient: parents of children, the spouse, the daughter etc.
4.4.1 Dimensions of the Illness Experience
Richard Zaner provides a set of dimensions of illness.64 The illness interrupts daily life; whether temporarily as with a broken leg or trivially as when one has the flu,
59 Tyreman, S. The happy genius of my household: phenomenological and poetic journeys into health and illness. Medicine, Health Care and Philosophy, 14, pp 301-311. 60 Ahlzen, R. Illness as un homelike being-in-the-world? Phenomenology and medical practice. Medicine, Health Care and Philosophy, 2011, 14, pp. 323-331 61 Pellegrino, E.D., "Being ill and being healed: some reflections on the grounding of medical morality", Annual health Conference of the New York Academy of Medicine, the Patient and the Health Care Professional: The Changing Pattern of their Relations (Conference held at the Academy, April 24 and 25, 1980). 62 Heidegger M., op. cit., p. 179. 63 Ibid., p. 180. 64 Zaner R.M., "Experience and Moral Life: A Phenomenological Approach to Bioethics", pp. 224-230. 4.4 The Patient as Entity: Potential for being Truly-Autonomous 67 daily routines are on the whole upset. A part of the body which is ill and which up till now was in the background suddenly comes to dominate awareness. It can become conspicuous by the absence of its normal functioning or even by its physical absence, as in the case of an amputation. The patient enters a realm of unavoidable trust. 65 Whether they like it or not patients have to trust the doctors they find themselves under, or indeed the one's they may have the lUxury of choosing. Not in all situations (the emergency situ ation for example) one may be able to choose his doctor or surgeon. On their part health professionals, as a response to the clinical encounter, find themselves caring for the suffering. On the other hand the very necessity of placing trust in others instigates the need in patients to be genuinely cared for. 66 There is uncertainty and ambiguity. Even when one goes to the doctor with a cough one does not know whether it is simply the flu or if there is an underlying chest infection or even the possibility of cancer. Illness provokes the need to know and understand. There may be fear, which may be even exaggerated due to recent scares broadcast on the media. During the flu season when some cases of meningitis occur, parents commonly evoke a response and a fear to any sign of headache or fever not withstanding the reassurances broadcast by the department of health that there is no epidemic or endemic areas. The need to be examined and cared for brings the need for intimacies among strangers.67 Cassell humorously notes that the odd thing about the relationship is that the patient, within the span of a few minutes, meets a stranger (the doctor) and suddenly finds himself with his clothes off, is examined in an awkward place and afterwards says thank yoU!.68 All this in the name of being cared for. Commu nication can be adversely affected when meeting strangers in a hospital environ ment. 69 Moreover there is a fundamental asymmetry within the relationship which gives rise to power on the part of the carer and vulnerability on the part of the patient.7o The healer possesses what the patient lacks-the knowledge to deal with the illness. Pellegrin071 notes that the charisma or personality of the doctor can operate in subtle ways, often unnoticed, which have a powerful force even on the independently-minded patient. The patient is put in a supplicating position. The illness is individuating, becoming the centre of the person's-this person's-life.72 The patient may be heralded to be dying; death is made 'present' and others around him experience the fear of loss of that individual (discussed above). Finally
65 Ibid., p. 224. 66 Ibid., p. 225. 67 Ibid., p. 226. 68 Cassell E.J., The Nature of Sl{fferillg, p. 68. 69 Zaner. R., op. cit., p. 226. 70 Ibid., p. 227.
71 Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship.: the Need for a Better Linkage", p. 356. 72 Zaner R., op. cit., p. 228. 68 4 Principles as a Consequence of the Relationship some illnesses help in the process of self individualisation. This experience of the "telling" illness73 may help the patient understand the value of her life. They may also experience the luck they have to be able to live longer (or a while longer) with the aid of medicines and technological advancements like dialysis and transplants. Cassell74 argues that although the relationship is not a transference (although sometimes it may be) in the sense that the physician does not take the place of a parent, there is an inherent bond which develops; the patient investing hope and trust in the physician?5 Autonomy is a myth if these considerations are not recognised. Respect for autonomy should mean respecting these considerations and deliberations which will all affect the capacity of the patient-as-person to make what in her normal state of health would be an autonomous choice. True autonomy requires some amount of self-individuation of the patient in this state; in turn this will prepare him for choice. A look is now taken at autonomy from this perspective.
4.4.2 True Autonomy and the "Authenticity" of the Relationship
Each disease may present with a spectrum of symptoms and signs and recom mended treatments; each patient presents uniquely and has to make an autonomous choice on those treatments. What is a truly autonomous choice? Faden and Beauchamp give the necessary conditions for autonomous choice: with inten tionality, with understanding, and without controlling influences. 76 As seen above, insofar as a disease does not have a being with which the Patient can be-with, it is something absurd-without meaning. The suffering brought along with a terminal illness, or the loss of a limb brings about changes in the concept of the self of the Patient. There has to be a new identification with the illness as part of the self. This concept is not straightforward. Cassell speaks of the self-conflict that exists in patients who cannot conform to society the way they used to before.77 Living with everybody else becomes a burden causing emotional pain; "watch a person with helpless legs using crutches in an attempt to get on a bus and comprehend the price paid for living 'like everybody else'. Not only are the physical exertions strenuous, but the rhythm and duration of the act ensure that everyone on the bus watches the effort-and notes the delay in moving on. The person has committed two breaches of social rules: attracting stares and slowing everybody down." Despite the difficulty and complaining, sick people try to make it work for themselves: they need friends, companions, conversations and need to achieve all the things other people need to achieve. Cassell explains how the
73 Ibid .• p. 229. 74 Cas sell E.J .• The Nature of Suffering. p. 69. 75 Ibid .• p. 70. 76 Beauchamp. T.L.. Faden R .• A History and Theory of Informed Consent. p. 238. 77 Ibid .• p. 54. 4.4 The Patient as Entity: Potential for being Truly-Autonomous 69 people around the sick tell them to try to be like everybody else and it is precisely this urge which causes the suffering-they cannot be like everybody else.78 What is needed he says is a way of teaching disabled persons how to be themselves to the fullest extent possible. In view of the suffering which an illness may bring with it, it is rather a denial of facts to speak of 'autonomous choice'. A person with a permanent disability who asks for assisted suicide is a person who has failed to reach self-individuation. Before succumbing to offer these people such possibilities one needs to ask whether all has been done for them to find self acceptance and individuation again. Acceding to these choices may simply be a way of acknowledging our own failure to help them lead a full life, either because as a society we are not ready to put in the extra luxuries necessary or because we cannot imagine ourselves in that position. By allowing such suicides to occur we give a possible solution. In reality such a solution is no solution at all. It allows us to live in a state of denial of this truth of illness which can capture us all. The true enemy is fear. 79 A fear of the future in this situation; on the rest of the world it is a fear projected from the patient. By our nature we identify and empathise with the feelings of helplessness of the patient. People who agree with assisted suicide are all prone to say, "If I were in that situation I would not want to live and would want the right to terminate my life". But if this right is given to us when we are helpless why should it not be given to us when we are not helpless? By acknowledging this light only to the sick we acknowledge that we deny it to fully autonomous patients; hence acknowledging the lack of autonomy of patients because of their health. The autonomy which we give them, to terminate their lives (and misery), is an autonomy not accorded to the autonomous-a self-reducing absurd concept of autonomy. Acknowledging death denies the possibility of meaning of the present suf fering; it affirms itself in the 'absurdity' of the illness and does not find self individuatiol1. It is a life terminated in a 'lost-self' -a self which has lost its individuation. The absurdity also lies in the fact that in granting a person the autonomous choice of assisted suicide, we allow the person to terminate the Being from which the autonomy comes, and thus the autonomy itself. We therefore acknowledge a self-destructing autonomy, not for the sake of autonomy but for the sake of the helplessness which the illness produces. But if a person is helpless he/she is not fully autonomous; in granting this autonomy we grant a victory to a partially autonomous self. This granting has meaning only insofar that it finds empathy with the Patient when projected into ourselves. It grants a denial of helplessness by giving an autonomy which really is not there-it grants a false sense of security. Conversely, illness is an opportunity to understand the potential of one's true potentiality-for-Being. Zaner cites patients who through their illness suddenly
78 Ibid .• p. 55. 79 Ibid., p. 58. 70 4 Principles as a Consequence of the Relationship discovered the value of life. so Only the particular Being decides its existence, whether it does so by taking hold or by neglecting. The question of existence never gets straightened out except through existing itself. 81 The person is prey to fall back to interpret itself in terms of the world and the traditions to which it is used to. 82 Heidegger argues that the Beings' projection of itself understandably is in each case already alongside a world that has been discovered. 83 "From this world it takes its possibilities, and it does so first in accordance with the way things have been interpreted by the "they". This interpretation has already restricted the possible options of choice to what lies within the range of the familiar, the attainable, the respectable ... " Also he argues that the Being (Dasein) "is authentically itself only to the extent that, as concernful Being-alongside and solicitous Being-with, it projects itself upon its ownmost potentiality-for-Being rather than upon the possibility of the they-self". 84 The entity which anticipates its non-relational possibility is forced by this very anticipation to take over from itself its ownmost Being, diverting away from the 'they' and discovering its new potential. Moreover it does so "of its own accord". This is here called 'true autonomy'. It is not an autonomy founded in what the person has been dri ven to believe by the society around him all along, but an autonomy found from within oneself. It is a new-found autonomy which may therefore not have been there before. Cas sell describes a patient who presented to her doctor with the complaint of blood in her stool. 85 When told of the possibility that the blood may be due to cancer she actually acknowledged that she had been seeing the blood for a few weeks; later she re-admitted that the blood really started 3 months before. She had been living in denial; an apprehension of the conse quences of cancer. Chronic illness can cause an internal personal conflict. This self-conflict is largely due to interaction with the social world to which the 'self' constantly meets the expectation of others "in all the multitude of possible ways in which such demands are placed" .86 In helping the patient come to terms with illness it is therefore crucial to deal with the self-conflict of how the present state-of-being will relate to the world as it used to. This can be done by bringing the patient from the they-self (that self which conforms to the world) so that he/she becomes "authentic(ly) Being-one's-self. This must be accomplished by making up for not choosing. But "making up" for not choosing signifies choosing to make this choice-deciding for a potentiality-for-Being, and making this decision from one's own Self. In choosing to make this choice, Dasein
80 Zaner R.M., "Experience and Moral Life: A Phenomenological Approach to Bioethics", p.229. 81 Heidegger M., Being and Time, p. 33. 82 Ibid., p. 42. 83 Ibid., p. 239. 84 Ibid., p. 308. 85 Cassell EJ., The Nature of Suffering, p. 62. 86 Ibid., p. 63. 4.4 The Patient as Entity: Potential for being Truly-Autonomous 71 makes possible, first and foremost, its authentic potentiality-for-Being."87 Heidegger does not refer to the ill person, but besides there is now a need to find new meaning and self-individuation, it is a road to true autonomy. Making an autono mous choice must come from the inner being of the person; he/she must be helped to come in touch with this true identity. From the foregoing it is clear that if there is to be any understanding a complete nan'ative of the hermeneutic has to occur.
4.5 Hermeneutics of the Relationship
Drew Leder suggests that through a hermeneutical process of understanding one enters into and comprehends living experience rather than simply 'explains' a scientific object. 88 He agrees with Heidegger that we interpretatively construct and experience the world in all its dimensions; thus in reading a book one interprets the black marks on a paper; one interprets the facial expressions on the face of a friend during a conversation; one interprets traces on an oscilloscope. Hans-George Gadamer, a student of Heidegger, suggests that we interpret subjectively and approach the interpretation through our background. Thus when reading a passage from the Bible a woman bereaving her husband will interpret differently than a theologian gathering evidence for a scholarly paper; a modern priest may interpret it differently than a fifteenth century counterpart. Heidegger notes that "any interpretation which is to contribute understanding, must already have understood what is to be interpreted" .89 He calls this a "vicious circle". Heidegger and Gadamer reject the notion that this is unscientific.9o In the circle however, is hidden a positive possibility of the most 'primordial kind of knowing' .91 A sen sitive reader permits the interpretative object its otherness, entering into a respectful dialogue and can extend, modify or challenge the text. 92 Extending this argument to bioethics, Leder notes that although here there is the problem of a multileveled discourse (the patient, the hospital committee, an author on a bioethical journal, etc.), bioethical reflection has meaning if one focuses on the unfolding case. The text one tries to interpret involves persons, bodies, pictures, numbers, speech, procedures etc.93 Each individual enters with a different set of prejudices: the patient with emotional, financial and existential concern; the hospital lawyer with a concern for liability. The hermeneutical complexity arises from the lack of clear social consensus on what to do in
87 Heidegger M., op. cit., p. 313. 88 Leder, D., "Toward A Hermeneutical Bioethics", p. 241. 89 Heidegger M., Being and Time, p. 194. 90 Leder D., op. cit., p. 242. 91 Heidegger, M. op. cit., p. 195. 92 Leder D., op. cit., p. 242. 93 Ibid., p. 243. 72 4 Principles as a Consequence of the Relationship certain situations.94 Leder argues that praxis is central to the unfolding inter pretative work because interpretation is intimately bound with practical conse quences. For example one seeks to look at juridical situations and sees how the law applies to the current case. How each interprets will affect the unfolding story (as opposed to when one reads a book); even doing nothing is doing something. "As the insurance company hesitates, the cancer multiplies and metastasizes" .95 Leder argues that even truth-telling should undergo a hermeneutical analysis sensitive to multiple contexts-historical, psychological, social, political-within which a story unfolds.96 Should the patient be told details of the metastasis, survival rates and the neoplastic characteristics of the cancer? Which truths empower the patients' autonomy? The argument of empowering the patient with clinical information to the degree possible to restore autonomy does not take the above hermeneutical contexts into consideration. Which truths are truly empow ering to the patient's autonomy?97 Twentieth-century hermeneutics rejects the notion that there is only one mode of interpretation of a bioethical dilemma. Each reading is equally significant or useful. Multiple interpretations may overlap or clash with one another.98 This however, is the advantage of hermeneutics for with these multiple possibilities one can arrive to the solution which caters better for the culture, tradition and society of the setting. A hermeneutic bioethics then is not just one approach as opposed to others (phenomenological, feminist, cross-cultural, and so on) but the "very space wherein these perspectives are articulated and engage in dialogue" y9 Gadamer stresses that hermeneutics begins with a spirit of dialogue and openness. 100 The individual who is pro-life might not change his stance with hermeneutic reflection but may realise the possible hypocrisy of being 'pro-life' and leaving unchallenged policies which enhance poverty, racism and igno rance.101 Hermeneutics moreover reveals that the "expulsion of religion is itself a constricting prejUdice of the modem age" .102 In the face of death, justice, risk and existential crises, individuals are likely to turn to religious sources which in turn give rise to modes of interpretation and action which are "complex, consistent, sensitive, and illuminating". This is also the realm of new discoveries in the
94 Ibid., p. 244. 95 Ibid., p. 245. 96 Ibid., p. 249. 97 Ibid., p. 250. 98 Ibid., p. 252. 99 Ibid., p. 253.
100 Ibid., p. 255. 101 Ibid., p. 256.
102 Ibid., p. 257. 4.S Hermeneutics of the Relationship 73 application of Trinitarian ontology.103 All interpretation is grounded on under standing. In so far as judgements and assertions are grounded on understanding and present us with a derivative form in which an interpretation has been carried out, it too has 'meaning'. 104
4.6 Phenomenology of the Clinical Encounter
Although Leder was quoted earlier as saying that phenomenology and other perspectives are articulated and engage in dialogue within the space of herme neutics, it is very difficult in matter of fact to separate the two. Narrative, phe nomenology and hermeneutics are really all saying the same thing: look into the details of the situation. The narrative view does this by describing a case in all of its details and interprets and validates words, psychology, sociology and histories of the situation. \05 Similarly, Zaner states that the phenomenological method suggests that in clinical situations which present a moral dilemma, moral issues are presented for deliberation, decision, and resolution solely within the contexts of their actual occurrence. There is a work of circumstantial understanding; every situational constituent, including any moral issue, is presented solely within an ongoing relationship between patient and physician. 106 Whilst each method may differ in minor particularities, the narrative method seems to be applicable to the 'ethicist' who narrates all the details of the story from the perspective of those involved. \07 Thus he/she will view the attitudes, feelings and experience of the patient and also those of the physician. Conversely, the approach through the phenomenology of the relationship is more adapted to someone within the rela tionship and thus suited to the role of the physician. \08 One important implication of a phenomenological perspective is that the best understanding of a person's behaviour is obtained through his or her internal frame of reference: how the patient sees the situation. \09 Subjective experience is thus the key to understanding because these are the ultimate causal agents behavior. Every situational participant
10) Mallia, P., Ten Have, H. Applying theological development to bioethics issues such as genetic screening, Ethics Med, 200S, 21(2): 9S-107 104 Heidegger M., op. cit., p. 19S. 105 Charon R., "Narrative Contributions to Medical Ethics. Recognition, Formulation, Interpre tation, and Validation in the Practice of the Ethicist", in V.S. Bioethies, p. 260. 106 Zaner R.M., "Experience and Moral Life: A Phenomenological Approach to Bioethics", p. 231. 107 Charon R., op. cit., pp. 260-283. Brody H .. "The Four Principles and Narrative", pp. 207-2IS. IOS Zaner R.M., op. cit., p. 230. Pellegrino E.D., "The Four Principles and the Doctor-Patient Relationship.: the Need for a Better Linkage", p. 364. 109 Hjelle L.A., Ziegler 0.1., Personality Theories, 2nd ed., McGraw-Hill International Editions, 1987, p. 406. 74 4 Principles as a Consequence of the Relationship not only experiences but interprets the encounter within his or her own biography. I to The physician within a relationship needs a model on which to visualise going about this phenomenological approach. To do this he must understand the possible positions with which he/she can view the patient and the possible positions his/her role takes during interaction with the patient. A possible visual pattern is suggested here which explains these roles. Thus there is the objective and subjective roles of both physician and patient. These come into an interplay with each other which determine the ontological possibilities of how one relates to the other. The Objective Physician is defined as the physician who looks at the patient in an objective way; the Subjective Physician conversely is defined as the physician who looks subjectively (through his own inner being) at the patient. The Objective Patient is the patient as seen through objective facts relevant to the case (his history, examination and investigation). The Subjective Patient is the patient as a whole (his personal narrative, attitudes towards his disease, fears, potentially self individuating and potentially truly-autonomous). Now Cas sell rightly so notes that the words 'objective' and 'subjective' may have different connotations in medicine and philosophy. I 11 Physicians tend to use "objective" to stand only for that which can be measured. Thus the reading on a clinical thermometer is objective but that the patient feels feverish is considered "subjective". Moreover the statement of the patient that he/she is feeling feverish and/or the meaning that the patient attributes to fever is also subjective. Conversely, for the philosopher, the meaning of the patient would be objective. The reason they differ may be because the meaning is buried inside the subject, "but in that case the core temperature of the body would be subjective". Cassell argues that to the contrary, both the meaning of patient's words and the temperature of the patient's body are objective and can be deter mined by others. While the patient's feeling of feverishness is irreducibly sub 2 jective, the patient's report of the symptom is objective. 11 This is true for all symptoms reported by the patient. The physician must however, elicit the precise meaning of a symptom before it is made objective. Thus pain itself is subjective. When described in its nature (where, when, radiation, relieving and aggravating factors etc.) objective use of this symptom can be made use of. The objective physician gives objective meaning thus to the information gathered from the patient and investigations. The history of medicine has alternated between the physiological and ontological concepts of disease. The ontological point of view is that diseases are things, entities with a separate existence from the person who has them. 113 The old view of disease is that it is a 'parasite' and that people become ill because they have a disease. Concepts
110 Zaner R.M., "Experience and Moral Life: A Phenomenological Approach to Bioethics", p.230. III Cassell EJ., The Nature of Suffering, p. 183. 112 Ibid., p. 184.
113 Ibid., p. 82. 4.6 Phenomenology of the Clinical Encounter 75 today are changing: cancer and pneumonia do not simply 'invade' the body. Molecular insights and treatments of cancer with hormones and chemotherapy have made people move from the view that cancers are merely foreign things. 114 Although it is not proven that emotion can have an effect on the course of an illness, it is true that they have an enormous impact on the social factors of the patient's life. 115 The Objective Physician would look at the Objective Patient. All that can be elicited will contribute to the diagnosis. Diagnostic criteria have come to rely on specific tests. What was once deduced as a heart attack merely from symptoms and signs, now has to be supplemented by blood tests (for cardiac enzymes) and electrocardiographic changes. I 16 The Subjective Patient and the Objective Patient have different needs. The Objective Patient is often associated with a focusing entirely on the function of the organ or system. Newer technologies have allowed this focus besides reducing the uncertainty about what is wrong with the function. "While the two are often the same-what the patient needs and what the patient's coronary arteries require-they are frequently not identical". 117 Conversely the Subjective Physician would look at a Subjective Patient. Whereas when no cause for a symptom is found, the symptom would almost invariably be attributed to a psychological reason by the Objective Physician, the Subjective Physician would continue to look for a reason: "It is an unusual doctor who continues to pursue the problem until the reason for the pain becomes clear, whether the cause is an undiscovered disease-the previous hunt having stopped too soon-or some odd knot in a muscle that has pinched the nerve that goes to the place where the pain is experienced." lIS Cassell notes that today doctors concern themselves with the 'hard' data (the signs of the illness); the patient's symptoms being sUbjective and often called 'soft' data. Despite this it is the symptoms which initially guide doctors toward a diagnosis.11 9 Again, the Subjective Doctor would not allow himself to be guided by the "averageness" of medicine, but would consider 'this' patient's needs. In 'aver age' medicine, since treatment is directed at disease, the treatment would be the same no matter which person carried the disease to the doctor. 120 This would be the attitude of the Objective Physician. Cas sell describes cases of patients who argue with staff about their needs when the latter follow rigid rules about treatment. 121
114 Ibid., p. 83. 115 Ibid., p. 84.
116 Ibid., p. 88. 117 Ibid., p. 91.
118 Ibid., p. 95. 119 Ibid., p. 97. 120 Ibid., p. 99. 121 Ibid., p. 98. 76 4 Principles as a Consequence of the Relationship
For the patient, a symptom is usually a symptom of something. It is more than merely a dysfunction. It is a manifestation of something underneath. Some may think the worst; others build an idea of the phenomenon underneath based on what they read, hear and know about illnesses. Thus if an acquaintance has died of lung cancer, a cough can easily prompt the conclusion that this cough may be cancer as well. It is often the symptom plus the meaning which makes people go to the doctor. 122 It is a human characteristic that once a person believes there is really something wrong, they think the worst. 123 Cassell counsels that doctors should look more at the particulars and at the 'soft' facts of the illness. Judgement is precisely the ability to deal with the particular. Diseases do not have independent existence; they are abstractions, conceptual entities. "The object of the Physician's search, the disease, does not exist as an entity but is merely an abstraction without independent existence. The only thing the clinician can work on (a paradox for medical science) is this sick person." 124 Also, medicine should find definitive causes of diseases. The cause of a pneumonia in an old gentleman can easily be attributed to the bacterium iden tified by microscopy. But that the pneumonia was caused by malnutrition because the old man had not been going out to buy food owing to his arthritis and that ever since his wife died it has been difficult for him buy supplies is also a cause. The care is simply incomplete if it stops at antibiotic treatment l25 Illness is thus a story-the medical story continuing into the patient's body. What is often the case in intensive therapy units is that each malfunctioning system is treated and supp0I1ed until the patient is better. Even if no underlying cause is found, treatment by pathophysiology keeps the patient alive and gives the necessary time for recovery. The family often view this as a miracle. Yet the same miracle can be considered a curse if it simply keeps alive a person who is suffering from terminal cancer. 126 The Subjective Physician would enter into the story of the patient, understand what the patient's true wishes are and see if they are and were consistent over time. The Subjective Physician would look at himself or herself as a being-with possibilities. The understanding can go as far as the disease; but if necessary it will go into the fullness of the situation seeking truth in dilemmas through bringing forward the possibilities-for-being of the patient; enhancing one's potentiality and feeling of being-understood. This enhances true autonomy in the patient; conversely it is true beneficence on the part of the physician. Beneficence thus takes on a different view than simply correct medical treatment (as opposed to the autonomy of the patient). This would be synonymous with objective beneficence.
122 Ibid., p. 101. 123 Ibid., p. 102.
124 Cassell E.1., The Nature of Suffering. p. 108. 125 Ibid., p. Ill.
126 Ibid., p. 122. 4.6 Phenomenology of the Clinical Encounter 77
Fig. 4.1 The physician Objective Objective oscillates between the Physician Patient (biological) objective and subjective self but overall there is an t empathic and more holistic , 'patient-centered' shift Subjective Subjective Physician .. Patient (psycho/sociaVreligious)
The beneficence of the Subjective Physician is subjective; being autonomy enhancing. To be sure, the subjective physician needs to be objective as well in the sense that he needs to consider objectively the patient. There is however, an oscillation and a general shift to the subjective state, empathising overall with the patient's being (Fig. 4.1). Nonmaleficence occurs at three levels. It is a balance of the benefit and side effects or other harms for this patient; it considers the patient's wishes respecting true autonomy and thirdly it balances this patient on a level of justice with the community (but as far as is possible, responsibility is towards this patient). Justice will be discussed further in the next chapter. It does not concern itself only with a balancing of the good and the bad of treatment options but takes into consideration what respects the patient's true autonomy and a true patient centered approach. Nonmaleficence thus becomes also a subjective experience, being, as was discussed in Chap. 4, a manifestation of beneficence. True non maleficence can only come from this 'subjective shift' therefore, as only by knowing the patient in his or her true subjective state and hence bringing forward true autonomy can we exert true nonmaleficence. A considerable amount of harm can be done to the patient whilst obeying all objective rules, from simply discharging a patient home on a weekend when all stores are closed to sending someone home where the relatives are unable to cope. In this chapter the main focus was on the concept of beneficence as a phe nomenon and how nonmaleficence and autonomy are manifestations of (and should be understood through) this phenomenon. The physician-patient relation ship must rest however, on a system of justice. Justice can range from simply not giving an antibiotic to avoid harm to society, to greater problems confronting sanctity-of-life vs. Quality-of-life issues. The next chapter deals with justice and the problem of seeking a common morality in a secular society.
Chapter 5 Conclusion
In this short book, an attempt was made to show the phenomenological roots of the four principles, beneficence, nonmaleficence, respect for autonomy and justice, and how they can better be understood through the phenomenology of the physician-patient relationship if they are to be given the direction of the lelos of medicine. An overview of the approach adopted by Beauchamp and Childress has shown that although in many ways 'obvious', principlism has no direction and even the authors admit that one can abuse them towards one's own ideas. The reason for this, it has been argued, is that arguments built on the proposed framework of the four principles do not depart from any fixed premises. Conversely the models of Veatch and Engelhardt depart from a purely liber tarian premises, and accordingly arrive at conclusions which themselves are found in a libertarian society: market forces and individualism. These contractual approaches give supremacy to the concept of autonomy of the patient. The lelos in . this case is not conforming to that of medicine but to that of a libertarian philo sophical base. Whilst the model adopted by Veatch for lexical ordering tries to give some order to the four principles, it is rather a futile exercise, as the problem really arises when one is faced with a dilemma. Ordering principles in an algo rithmic manner does not help. It is only natural that one does not give a treatment which the patient explicitly does not want. But the algorithm does not tell us when and at what stage should one gives in and complies with the patient's wishes. Should one not, for example, try to understand further whether the patient indeed knows enough about the treatment and if not whether a better knowledge may make him/her change heart? If this is possible, not only a different outcome has been reached, but it has been argued that the patient has been brought to the point of 'true autonomy'. The only autonomy which is worth the while, is that autonomy taken from a premise s of enough knowledge to make the autonomous choice. One can say that this has been argued all along by principlists. If so, they have been arguing for an autonomy which flows through beneficence. For true auton omy can only come through a conferring of sufficient information made possible
P. Mallia, The Nature of the Doctor-Patient Relationship, SpringerBriefs in Ethics, 79 DOl: 10.1007/978-94-007-4939-9_5, © The Author(s) 2013 80 5 Conclusion by an understanding of the hermeneutic of the patient. Such is true beneficence and through such does true nonmaleficence manifest itself. Nonmaleficence needs be understood historically. An epistemological approach shows that the maxim primum non nocere came to be before there was any scientific knowledge at hand. In doing good, first see that you do no harm. But the intention of doing good is there a priori to caution the doing of no harm. Indeed without this a priori premises of beneficence, there is no need for the maxim. Like autonomy, therefore, nonmaleficence is a manifestation of the phenomenon of beneficence in the relationship. Autonomy is however, a recent recruit whilst nonmaleficence was one of the very first manifestations once the act of profes sion\healer had been established. In fact even up till the last century, no mention was ever made of autonomy. This is not any malevolence on the part of medicine; simply a fact of the times which reflect a change in attitude to human rights in all areas of life. But if one where to argue therefore that autonomy is a manifestation of libertarian philosophy, or indeed its phenomenon, one would be doing little help to the physician-patient relationship. How can this concept enter a realm in which the patient, by default, is at a disadvantage? One can take two approaches. The first is to try to devise models which put doctor and patient on equal grounding. Such are the models of Veatch and Engelhardt. But these rather ignore that 'fact of illness', as outlined by Pellegrino and Thomasma. It has been argued, patients are never at equal levels with their doctor because of the knowledge and power at hand of the latter. Indeed patients between themselves are not on an equal level. A pharmacist, it has been argued, who approaches a doctor is in a better position than an Engineer when it comes to understanding the drugs he/she is being prescribed. Edward Rosenbaum wrote a book on his experience as a cancer patient ("A Tase of My own Medicine") which eventually became the film THE DOCTOR. He says that it was not until he was a patient that he learned that the doctor and patient are not on the same track and that there are completely different points of perspective from the bedside to the bed itself. I So how can doctor and patient be on equal ground, or at least approach this ideal? It is (it has been suggested) through the second approach, which indeed lingers throughout the history of medicine but has become obscured by technology and perhaps various degrees of paternalism and 'goods external'. This is the phenomenological approach which directs the relationship to the telos of medi cine-health care. 'Care' was defined from the phenomenological concept of 'concern'. Although this concern can have both beneficial and non-beneficial meanings, it is obvious that when a patient approaches a doctor (from the simple attention for a common cold to a request for cosmetic surgery) it is with the former in mind. The phenomenology of the physician-patient relationship not only incorporates all the principles but, as has been suggested, is a way in which they can (and maybe should) be understood. It has been suggested that the bond of the
I Rosenbaum, E., The Doctor, Ballantine Books, 1988, p. vi. 5 Conclusion 81 relationship itself is in fact what brings forth the phenomenon of beneficence. To speak of beneficence in the physician-patient relationship is to speak of the relationship itself. It is difficult to conceive of another way for the relationship to exist if we are to respect the telos of medicine. Any contractual definition does not fulfil this ideal; and therefore it is futile to speak of beneficence. These latter definitions have, rather, confused beneficence with correct medical practice. This medical practice is usually a scientific or technological procedure which, as shown through the epistemology of medicine, have not always been at the service of medicine but have been recruited only recently. Nonmaleficence and respect for autonomy are therefore manifestations of the phenomenon of beneficence. They are not phenomena in themselves; that is they do not manifest themselves in themselves as does beneficence within the rela tionship. Rather they manifest themselves as "symptoms", outcomes, of a phe nomenon underneath-beneficence. Finally, medicine is not there to define for society what is good. Because of advancing technologies and liberal philosophies medicine has been put in the public eye, as if it were the cause for the debate for abortion, end of life decisions, euthanasia etc. These are issues which society and not medicine alone need deal with. Indeed they are issues which have in themselves given birth to bioethics. It is not reasonable therefore to try to formulate a framework whereby physicians and their patients may solve these problems outside their system. Medicine must therefore rest on a concept of Justice. It has thus been suggested that Justice has a dual nature. On a micro-level a doctor may decide, following guidelines issued to the medical community, not to treat a patient in a particular way for the overall benefit of society. Thus over prescription of antibiotics, even if they may do some good to the patient when prescribed empirically, is not justified because of resistant strains which develop. When these resistant strains are transmitted from person to person a resistance to an otherwise good antibiotic develops in the population which can result in death for some from a simple infection. Another clear example is the rationing of emergency medical services. It is not wrong to send away people who turn up with non-emergency reasons to a casualty department. At most one may make an appointment at the out-patient department. Whilst one may appreciate the stress old people may find in the normal procedures and how easier they find it by turning up at a casualty department, especially if often they do indeed find well meaning doctors who are willing to close an eye and treat them, one has to appreciate that often in treating these patients, someone with a more urgent matter may be waiting in the reception. On a macro-level, there is the justice which a society decides to abide by. It is unreasonable for the physician-patient relationship to over-ride these laws of justice even if morally they feel they are wrong. If they do so they both must be willing to pay the price for being pioneers. One may feel abortion is justified, but if the laws of the country do not permit it they stand the pain of justice. Rosenbaum affirms that many physicians prefer to keep a detached attitude toward patients, it being emotionally and too difficult and time-consuming to encounter the suffering 82 5 Conclusion that accompanies human illness.2 Conversely Poulson reflects that he wished his patients to be Gods, which they could not; but he also wanted them to understand his illness and feelings, some of whom did not. 3 This is the answer proposed therefore if one had to ask what advantages does the phenomenological approach of principles through the physician-patient rela tionships (or health care relationships in general) give over any contract or simple principle-based approach. It respects the teleology of medicine. It brings forth a richer beneficence and a deeper autonomy; what has been ventured to be called true beneficence and true autonomy. As a result nonmaleficence is more specific. Also this approach permits a concept of justice as defined in one's tradition, providing it is willing to be confronted with contemporary challenges. The approach believes in common values even though it as yet cannot define them rationally; knowing that it has always been on faith in values that societies have moved forward. When challenged they stand up to the questions rather than retreat meekly into the crust of tradition or simply loose faith in any tradition.
Since beliefs are expressed in and through rituals and ritual dramas, masks and modes of dress, the ways in which houses are structured and villages and towns laid out, and of course by actions in general, the reforrnulations of belief are not to be thought of only in intellectual terms; or rather the intellect is not to be thought of as either a Cartesian mind or a materialist brain, but as that through which thinking individuals relate themselves to each other and to natural and social objects as these present themselves to them. 4 The answer to bioethical questions, at the end of the day, is also therefore phenomenological rather than rational. Rationality can only build on the premises of tradition and not beyond them. Phenomenology lives out these traditions by confronting them and relating them to each other. The society which lives out a set of rules is a society which does not respect the free dimensions of human nature; who notwithstanding their freedom strive to reach out to each other, by their nature or otherwise, to reach a comfortable state of being-with-one-another. The Justice we strive for is a justice reached phenome nologically through relating traditions to each other. In doing so we provide a link of being-with-one-another of the physician-patient relationship with respect to the rest of society.
2 Poulson J., op. cit., p. 1846. 3 Rosenbaum E., op. cit., p. vi. 4 MacIntyre, Whose Justice? Which Rationality ?, p. 355. Bihilography
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