Medical Ethics - Study Notes
MEDICAL ETHICS by Tony Hope
Tony Hope is Professor of Medical Ethics at Oxford University and an Honorary Consultant Psychiatrist. His studies include not only medicine but also philosophy so that he has a good knowledge of the moral, logical and conceptual issues that arise within medical ethics.
In Chapter 1 he gives a few examples of the sorts of questions that fall within this field, such as easing death and the morality of killing; is it a crime for a doctor to practise euthanasia; how should limited health care resources be fairly distributed; when can a mentally ill person be treated against their will – and so on. Also, he says modern medical science creates new moral choices (and, I would add, a few new dilemmas too).
He maintains that although scientific evidence is important in clinical decision making, so also are ethical values (and sometimes, of course, ethical obligations). But one perspective that is common to all the chapters in his book is the importance of reasoning, giving reasons for the view you take and being prepared to change your views in the light of other reasons.
Chapter 2 is entitled ‘Euthanasia: good medical practice, or murder?’
He states that the practice of euthanasia contradicts one of the oldest and most venerated moral injunctions: ‘thou shalt not kill’. But he goes on to say that ‘the practice of euthanasia, under some circumstances, is morally required by the two most widely regarded principles that guide medical practice: respect for patient autonomy and promoting the patient’s best interests’. The question he must answer is, are these sufficient to override the injunction not to kill? And how can the ‘best interests’ of a person include being put to death?
In the Netherlands active euthanasia [to be defined in just a moment] is legal, subject to the following criteria:-
1. The patient faces a future of unbearable, interminable suffering;
2. The request to die must be voluntary and considered;
3. The doctor and patient must be convinced there is no other solution;
4. A second medical opinion must be obtained and life must be ended in a medically appropriate way.
Physician assisted suicide is also legal in Switzerland and in Oregon, U.S.A.. But in the UK the House of Lords has rejected euthanasia three times over the past century.
A very common but invalid argument against euthanasia is what Hope calls ‘playing the Nazi card’. To put it in a nutshell, this is to say that ‘the Nazis practised euthanasia, therefore euthanasia is wrong’. But this is insufficient, just as it stands; you might as well say ‘the Nazis wore uniforms, therefore it is wrong wear uniforms’. Hope says ‘the point at issue is whether euthanasia in certain specific circumstances is right or wrong...’, this depending on what those circumstances are and what is meant by euthanasia.
He begins with some standard definitions:-
Euthanasia: X intentionally kills Y, or permits Y’s death, for Y’s benefit [to be explained very shortly].
Active euthanasia: X performs an action which itself results in Y’s death.
Passive euthanasia: X allows Y to die, withholding or withdrawing life-prolonging treatment.
Voluntary euthanasia: Euthanasia when Y competently requests death himself, i.e. a competent adult wanting to die.
Non-voluntary euthanasia: Euthanasia when Y is not competent to express a preference, e.g. Y is a severely disabled newborn.
Involuntary euthanasia: Death is against Y’s competent wishes, although X permits or imposes death for Y’s [presumed] benefit.
Suicide: Y intentionally kills himself.
Assisted suicide: X intentionally helps Y to kill himself.
Physician assisted suicide: X (a physician) intentionally helps Y to kill himself.
It is generally accepted by all parties to the debate that involuntary euthanasia amounts to murder.
Voluntary euthanasia however is more controversial. A very basic question is, how can it be in someone’s best interests to die? In everyday life the whole idea seems absurd, bizarre or perverse. But Hope is not talking about everyday life; he is talking about the exceptional circumstances where an individual is incurably ill and/or in severe pain or discomfort which cannot be alleviated. He is fully conscious, aware that the future holds nothing but continued suffering and decides that death is the only escape from the pain and suffering. Of his own volition, he asks the doctor(s) to give him a lethal injection. To refuse this request would be contrary to the patient’s wishes and would result in continuing that person’s pain and suffering. This is hardly in their best interests, and is arguably a significant moral wrong in itself. This is the basic case for voluntary euthanasia.
But under UK law, a doctor who complies with the patient’s request and administers a lethal injection would be guilty of murder and convicted accordingly. On the other hand, UK law according to Hope seems to permit ‘passive euthanasia’ in certain circumstances. Patients can refuse treatment so that a doctor, at the patient’s request and quite legally, withholds a life-prolonging drug, where both parties are aware that death may result. Now, to withhold a drug is not an action, it is an omission, albeit deliberate. But if it is deliberate an omission can be as culpable or as condonable as an action. So it appears that under UK law, active euthanasia is illegal, passive euthanasia is not (always) illegal. Is this an anomaly?
Hope concludes this chapter by noting that killing is normally a great wrong because dying is normally a great harm. But if a patient of sound mind decides it is in his or her best interests to die now rather than suffer a prolonged and painful death, then death now is a benefit, not a harm, in which case killing is not a wrong in these specific circumstances. He adds that when suffering is the result of following a moral principle then we need to look carefully at that principle and ask whether we are applying it too inflexibly.
Chapter 3 of Hope’s book is entitled ‘Why undervaluing ‘statistical’ people costs lives’.
The critical question is, what is the cash value of a human life? A very understandable response is to say you can never put a cash value on a human life, but when you are budgetting the cost of medical care, you can – because you have to. This is because financial resources are always finite, never infinite. As Hope says, ‘there is no health care system in the world that has sufficient money to provide the best possible treatment for all patients in all situations’. This includes the richest countries such as Germany and the U.S.A..
It follows unavoidably that priorities have to be set between what sort of treatment for what sort of medical complaint, and by what criteria. He concentrates on life preserving or extending treatments, although he notes in passing that some medical treatments such as hip replacement have little or no effect on life-span but significantly improve the quality of life. So - suppose there is a choice between three new medical treatments for three different medical complaints and there is only enough money left over from a limited budget for one of them. The first could benefit 10 people, total life-years gained between them being 35. The second benefits 15 people, total life-years gained 30. The third benefits 2 people, total life-years gained 16 (8 years each). How do you choose? Hope’s favoured option is treatment (1) where the total life-years gained is the highest, at 35.
Whilst his argument is very cogent, he seems to give top priority to the criterion of preserving or extending life-spans when it comes to choosing priorities in medical care policies. But he acknowledges that ‘no health care system in the world behaves remotely in this way’. There are various reasons for this, the principal one being the ‘rule of rescue’. This gives priority to identifiable persons whose lives are at high medical risk now rather than prioritizing expenditure on people who may face medical problems in the future - for example heart attacks or strokes if they do not receive statins early which would lower their blood pressure. His case is that the ‘rule of rescue’ neglects these people.
I think Hope is right to register concern if insufficient priority is being given to medical treatments whose benefits will not reach fruition until sometime in the future. But I think he is wrong to down-grade the ‘rule of rescue’ quite so much, even acknowledging its costs and sometimes risks. The fact remains that like fire-fighting medical care must often be provided now, for the relief of illness and pain now, whether it is the need for a hip-replacement, for urgent dental treatment, removal of the appendix or whatever.
Chapter 4 is intriguingly entitled ‘People who don’t exist; at least not yet’.
Hope commences by quoting the Human Fertilisation and Embryology Act (1990) which stipulates that ‘a woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment...’. Hope relates how in the early days of IVF a hospital in Manchester had a policy that couples wanting IVF should satisfy the general criteria used by adoption societies in assessing their suitability as parents. As commonsense would suggest, if we have a child X and possible adoptive parents A, B, C etc., then, if we have good reason to believe that parents A will be better parents than B, C, D etc., then it is in child X’s best interests to be adopted by parents A. In principle, it would appear that the criteria for IVF should be the same as for adoption.
But Hope says it is not that simple – and this is where he sets out certain views which I do not agree with. Assuming in theory that we have the resources to help only one couple, if couple A seems a better prospect than couple B, then it would appear that we should help couple A to conceive, not couple B, for this would serve the best interests of ‘the child’ (as with adoption). But Hope says this is wrong – it will be a different child depending on which couple we help, and (corresponding to the couples) child (b) is not the same as child (a). It is in potential child (b)’s best interests that couple B should be helped, he says. And this is where, he goes on, the analogy with adoption breaks down (where there is only one, pre-existing, child). If we help couple A he says we are acting against the best interests of potential child (b) who would have existed if we had helped couple B instead.
This is beginning to get altogether too conjectural. If in real life we helped one couple A but not couple B on grounds of unsuitability, how can we be guilty of a wrong against a child (b) who in real life does not exist? Hope goes on to argue however that because child (a) is likely to have a better life than a child (b), this would make the world a better place and turns the question into the entirely different one of welfare maximization. This is reasonable, but I am not clear how this is so very different from the original guidelines for adoption. We do seem to have gone ‘all around the houses’ to do a short, straightforward journey.
Hope also discusses the 59 year old woman a few years back who received IVF treatment privately and gave birth to twins. The outcry at the time was that the life of a child born to a 59 year old would not go as well as children born to a younger mother; mention was made (as I recall) of an older parent’s greater propensity for illness or infirmity over the years whilst the child is still a young person. This point can be debated, but Hope says it is not relevant to the children the woman had because ‘they could not exist as children of a younger mother’. But this comment is purely abstract and does not address a difficult but real question.
Hope continues in this chapter to arrive at dubious conclusions. For example a deaf couple want their child to be deaf as well so as to be part of the ‘deaf community’. All would agree it would be wrong for a doctor to administer a drug which would cause a normal foetus to become deaf. But suppose a deaf couple needing IVF treatment choose an IVF implant with the ‘deafness gene’ and ask the doctors to arrange this instead of a genetically normal embryo. Some people might say this would be wrong. But Hope argues it is false to say their action was harmful to ‘the child’, for no harm has been done to a child (without the deafness gene) which was never conceived in the first place. This is ‘technically’ true, but beside the point. The critically important point is that if the parents deliberately chose to bring into the world an individual with a disability when they could have done otherwise, most people would say that that was the wrong. It could perhaps be argued that a deaf couple would be inappropriate parents for a child with normal hearing, but that too could be debatable. Parents with disabilities can in fact receive excellent support from professional specialists.
Hope concludes Chapter 4 with a couple of other questionable examples.
He claims that normal intuitions are often wrong because they are based on ‘false metaphysics’, but I would argue with respect that it is sometimes Hope who uses the ‘false metaphysics’. He relies upon a distinction between ‘identity preserving actions’ and ‘identity affecting actions’. For example a pregnant woman drinks sufficiently heavily to damage the foetus’s brain. The identity of the foetus remains the same whether it suffers brain damage or not, but on the other hand if a woman delays reproduction from the age of 30 to when she is 40, it is true that a different child will be born as a result. But in the cases we have been looking at, the distinction is not relevant and fails to address the points at issue. For, using the indefinite pronoun ‘any’, we can make perfectly meaningful general statements about the well-being or otherwise of any child in one set of circumstances or another, or the dubious morality of deliberately bringing into the world any child with a disability such as deafness.
In Chapter 5 Hope discusses the importance of valid reasoning and avoiding fallacious arguments within ethics.
He gives a few examples that illustrate what is meant by logical validity and I summarize these in the Appendix to these notes.
Conceptual analysis is closely related to logic. It is central to philosophy (and some philosophers say that conceptual analysis is what philosophy is, but let us not digress).
The four main types of conceptual analysis are:
(i) providing definitions;
(ii) elucidating concepts;
(iii) making distinctions between different concepts and
(iv) identifying similarities between different concepts.
As an example of conceptual analysis in the abortion debate, it could be asserted that a foetus has no separate identity from that of its mother. Because it is connected to its mother by the umbilical cord, it is part of the mother and cannot therefore have a separate identity of its own. But it was discovered that the DNA of a foetus is different from that of its mother, and DNA is as unique to each individual as a fingerprint. Therefore even if a foetus is connected to its mother, its identity is nevertheless different.
Consistency and case comparison mean that if you make different decisions or do different things in broadly similar situations, you must be able to identify a morally relevant difference between the two situations otherwise you are being inconsistent. This is particularly important in moral reasoning and in legal reasoning.
Thought experiments. These involve the use of imaginary examples in testing arguments and clarifying concepts for inconsistency or otherwise. Thought experiments can be very useful in theoretical reasoning but must be carried out with care, otherwise they can be misleading (as we found with one or two of Hope’s own thought experiments in Chapter 4!).
Reasoning from Principles. This applies in any discipline, and four general principles apply in medical ethics:-
1. Respect for patient autonomy: i.e. to help the patient in coming to their own decisions on medical care and to respect those decisions.
2. Beneficence: promoting what is best in medical terms for the patient.
3. Non-maleficence: avoiding harm to the patient (or others).
4. Justice: basically, that patients in similar situations should normally have access to comparable health-care; laws should be complied with; rights should be respected (although it can sometimes be disputed what ‘rights’ are).
The last few pages of Chapter 5 are concerned with spotting fallacies in reasoning. The examples he gives on pages 67-74 are very common ones, especially – in medical ethics - the argument from ‘Nature’; the argument from ‘playing God’ and the ‘slippery slope’ argument.
The ‘argument from Nature’ boils down to the assertion that because something is not ‘natural’, it is therefore wrong. The argument has been used against homosexuality, euthanasia, contraception, IVF treatment, etc.. The problem is, many things are ‘unnatural’ but hardly ‘morally wrong’, for example electric light bulbs, contact lenses, dentistry, chiropody, medical practice of any sort, so the argument reduces to absurdity. Likewise it is insufficient to say that something is ‘not normal’, for what is so wonderful about normality? ‘Normal’ human behaviour includes, sadly, selfishness, impulsiveness, stupidity, aggression and so on. The argument from ‘playing God’, likewise, cuts both ways. If we say IVF treatment is ‘playing God’, so is the use of antibiotics or heart surgery to save a person’s life.
Probably one of the most tricky arguments to deal with is the ‘slippery slope’ argument which has to be taken seriously. One thing leads to another, so how can we be certain that voluntary euthanasia (for example), even if it is ethical, will not lead in practice to involuntary euthanasia, which is not? Of course, there can never be any firm guarantee against future malpractice in any field. In politics, Hitler came to power perfectly legally and democratically in 1933, but this is not an argument against democracy. Hope’s main argument against the slippery slope danger in medical ethics is that barriers can in practice be set up at the appropriate stages along the ‘slope’. For example the difference between voluntary and involuntary euthanasia can be clearly defined, which can then be reflected in legislation which can stipulate the necessary safeguards in practical terms.
Chapter 6, ‘Inconsistencies about madness’, is mainly about one single issue.
Summarizing very briefly, his principal concern revolves around ‘the different standards used in enforcing treatment for those with and [those] without mental disorder’. Most Western countries, he says, have special legislation to allow patients with mental disorder to be kept in hospital, and treated, against their will (p76). He contrasts this with criminal law where a person without mental disorder who commits a serious violent crime is typically sent to prison. He deserves to be punished, and society must be protected. However, once he has served his sentence he must be released.
But if you have committed a similar violent act as a result of a mental illness you can be detained in a psychiatric hospital as long as it is thought you pose sufficient risk to others. This may well be much longer than a mentally healthy criminal would have been imprisoned for a comparable act. In fact you may be detained even if you have not yet committed a violent act. Under criminal law a person who has not yet committed a crime cannot be ‘preventively detained’. But a mentally ill person can be, quite legally. Is there an inconsistency here? Hope’s argument is that there is, and that it amounts to an injustice.
Chapter 7 is ‘How modern genetics is testing traditional confidentiality’. Since ancient times doctors have adhered to the Hippocratic oath which requires them to maintain strict confidentiality about their patients. They must not divulge information, medical or non-medical, to a third party, even to a close relative, without consent. But consider the case of a married couple who have had a child with a severe, inherited disorder and attend a genetics clinic for DNA tests from both of them to assess whether any future child of theirs will have the same disorder. The geneticists discover that the faulty gene was not on the mother’s side, but they also discover that the husband is not the natural father of the child they have just had. This implies that any future baby is unlikely to have the same condition as was inherited from the natural father. Should they disclose to the husband that he is not the natural father of their child, compromising the mother’s right to confidentiality?
The General Medical Council in the UK upholds the right of the patient to strict confidentiality with one proviso: ‘disclosure of personal information without consent may be justified where failure to do so may expose the patient or others [my italics] to risk of death or serious harm’. On this basis, not telling the husband the facts about his child’s true paternity does not amount to ‘risk of death or serious harm’. So the wife’s confidentiality is not breached (although a lawyer might wonder where this leaves the husband’s rights not to be deceived on questions he may consider relevant to the marital relationship.... but let us not digress).
Hope then relates a case discussed in the Lancet in 2001 concerning a woman who refused to share genetic information about herself with her sister so as to prevent the sister from knowing about a serious genetic condition that could affect any child she might have. Disclosure, she said, might cause her sister to opt for an abortion, which she said would be wrong (it was mentioned that the two of them were not good friends). You will appreciate the potential consequences of this woman’s insistence on her right to medical confidentiality. Hope agrees with the authors of the article that unlike most medical information, genetic information should be available to all genetically related family members. This would be a departure from the traditional practice of strict confidentiality.
Chapter 8 is entitled ‘Is medical research the new imperialism?’
The principal question is how research should be regulated. Regulations are in fact very strict, promulgated by the Declaration of Helsinki in 1964. Hope notes that the guidelines stipulate that research participants should not be put at more than ‘minimal risk of harm’, so that the guidelines are in fact much stricter than the safety guidelines which apply to many sporting activities.
But Hope’s principal concern in this chapter concerns the use of placebos (i.e. dummy, neutral medications) as used in control groups in Third World countries where research is carried out. Placebos are not however used in tests carried out in richer countries. In a drug trial carried out in the UK or the USA, you would be treated either with the new drug being tested or with the current best treatment. You would not be given a placebo (p107). Hope’s point is that this (amongst other things) perpetuates global inequalities in health care.
Chapter 9 is where ‘Family medicine meets the House of Lords’.
Hope begins by explaining how, with the example of a 70 year old man suffering from dementia and lung disease, the question of whether he should be hospitalized or treated at home raises quite complex dilemmas, not only medical ones. The patient wishes to stay at home; his wife thinks he should go to hospital so the doctor, rather like a social worker, has to negotiate a viable solution.
Then Hope moves on to the vexed question of a pregnant 15 year old girl who wants an abortion but does not want her parents to know about it. This raises major questions about parental rights, client confidentiality and medical consent with respect to children under 16. In the early 1980s the DHSS issued guidelines for doctors on family planning services which included the statements (a) that a doctor would not be acting unlawfully if s/he prescribed contraceptives for a girl under 16 and (b) that a doctor should normally only do this with the consent of her parents but in exceptional cases could act without parental consent if the doctor considered it clinically desirable to prescribe contraceptives.
A Mrs. Victoria Gillick sought assurances from the NHS that none of her daughters would be given contraceptives without her knowledge and consent. This assurance was not forthcoming, so the case ended up in the House of Lords where five judges heard the case. By a majority of three to two, Mrs. Gillick lost.
In conclusion I think Hope’s book is very useful and informative in taking us through some of the principal problems that arise within medical ethics. A notable omission however is the absence of any discussion on the pros and cons of abortion which does I think fall within the purview of medical ethics. I cannot of course comment on questions of medical fact or practice in Hope’s book, and I think his discussion of ethical and philosophical issues was on the whole adequate. But I do think he went off the rails rather badly in Chapter 4 with his discussion of “child (b)” etc.. He became far too conjectural, reminding me in many ways of what Bertrand Russell said in his Theory of Descriptions about logical fictions such as ‘the present king of France’.
RHS, 2013
APPENDIX
Notes on Logical Validity
A logically valid argument is where the conclusion necessarily follows from the premises. For example:-
Premise 1: If a foetus is a person it is wrong to kill it.
Premise 2: A foetus is a person.
Therefore, it is wrong to kill a foetus.
This is a standard syllogism called Modus Ponens. If premises 1 and 2 are both true, then the conclusion must be true. This applies to any argument of this format, irrespective of its subject-matter. But if either or both of the premises are false, the conclusion does not follow. Logic does not in itself tell you whether a premise is true or false. That requires separate investigation.
Another type of syllogism is called Modus Tollens:-
Premise 1: If a foetus is a person it is wrong to kill it.
Premise 2: It is not wrong to kill a foetus.
Therefore, a foetus is not a person.
This conclusion follows from the premises. But if this conclusion is false, then one or both of the premises must be false. There can also be invalid arguments where even if the premises are true, the conclusion does not follow. A very common example is denying the antecedent and drawing a false conclusion:-
Premise 1: If a foetus is a person it is wrong to kill it.
Premise 2: A foetus is not a person.
Therefore, it is not wrong to kill a foetus.
This does not follow.
There may be other reasons why it is wrong to kill a foetus whether it is a person or not.