1/ Understanding Ethics and the Art of Moral Reasoning

Ethics

Introduction

The ethical dilemmas of modern medicine are frequently encountered in critical care practice and there are recurring practical opportunities to reinforce one's knowledge of ethics for trainees and intensive care workers generally. The authors of this module do not attempt to provide all the answers to difficult decisions, but will point out some ways in which you can approach hard cases.

Many critically ill patients are too ill to give or withhold their consent to treatment. It is often necessary to find a way to make difficult decisions, which may involve the initiation, or the foregoing, of intensive life-sustaining therapies, on a patient's behalf. The module outlines approaches which respect the autonomy of the patient in reaching therapeutic decisions.
In the absence of consent it could be argued that research and innovative therapies which cannot be known to benefit the patient should be prohibited. Yet research continues and is necessary to the improvement of the evidence base which justifies the therapies which patients undergo. In this module you will learn how intensive care doctors have tackled problems of consent to both treatment and research.
Intensive care technology has given practitioners the ability to sustain the body's metabolic processes even when recovery to independent existence becomes impossible. This has led to the need to redefine death and to establish ways of switching from 'aggressive' to 'palliative' treatment at the end of life without breaking laws which prohibit the taking of life. You will learn what ethics and the law have to say on these difficult matters.
Beyond the private interests of the doctor-patient relationship, there is a valid public interest in the work physicians do. Some of the issues of public concern will be explored.
The complexity and invasiveness of intensive care treatments may cause unintended harms to our patients; this module will draw your attention to some of the ways errors and accidents happen, and to the fact that even accepted practices are sometimes found in retrospect to be harmful. What are your duties to your patients in dealing with unintended harm? / Intensive care practice poses a number of special case challenges to conventional ethical thinking about the doctor-patient relationship

1/ Understanding ethics and the art of moral reasoning

By one definition, 'Ethics' is the study of morality and moral reasoning, and helps us to answer the question 'what ought I to do?' in any given circumstance where a choice must be made. Some people seem to believe that 'Ethics' when applied by an expert will reveal a single correct or 'ethical' answer to any given moral dilemma. This is certainly not true.

Moral reasoning:

Deontological ethics

If you regard certain acts as morally wrong regardless of the consequences, you are applying deontology; perhaps it is your belief that it is always wrong to bring about the death of another person, perhaps you may believe that it is always wrong to tell a lie. In the 18th century Immanuel Kant formulated a Practical Philosophy which supported the existence of God, and he identified a Categorical Imperative, which in one formulation says:
'So act that you treat humanity in your own person and in the person of everyone else always at the same time as an end and never merely as means.'
The rules that Kant derived from the Categorical Imperative, and the Ten Commandments of the Judeo-Christian Old Testament, are examples of deontological ethics. / Your approach to moral reasoning may be broadly 'deontological' (pertaining to duty) or 'teleological' (pertaining to the purpose or design of developments). Here 'consequentialist' is substituted for 'teleological'

Consequentialist ethics

A consequentialist approach is commoner in secular thought. The correct thing to do is that which brings about the morally superior outcome. But what is moral superiority? A utilitarian would argue that the practitioner ought to do that which brings about the greatest happiness or benefit for the parties concerned. Act utility chooses as morally superior the choice that brings about the most desirable outcome for the specific persons under consideration. Jeremy Bentham was a 19th century philosopher who developed the concept of utilitarian ethics, which he described as follows:

'Ethics is the art of directing men's actions to the production of the greatest possible quantity of happiness, on the part of those whose interest is in view.'

Bentham believed that every man is the best judge of his own advantage, and advocated three ethical principles; prudence (in one's own personal conduct), probity (forbearing to diminish the happiness of one's neighbour) and beneficence (studying to increase one's neighbour's happiness).

Rule utility

Perhaps occupying a middle ground between deontology and act utilitarianism is rule utilitarianism, in which the rule to be followed is that which would bring the greatest happiness or benefit if it is applied in all similar cases. Lawmakers tend to apply rule utilitarianism.

Principlism - a dominant approach in western practices

The most commonly quoted set of modern ethical principles is that enumerated by Beauchamp and Childress of Georgetown University in the USA:

Respect for autonomy, the patient's right to self-determination
Beneficence, the moral obligation to promote the patient's welfare
Non-maleficence, the avoidance of harm to the patient
Justice, society's expectation that everyone will be treated fairly

They have gained broad acceptance and are so regularly quoted that they have been dubbed the Georgetown Mantra. More recently a physicians' group calling themselves the Medical Professionalism Project has advocated three fundamental principles and a set of ten professional responsibilities (commitments).
Their principles are:

Primacy of patient welfare
Respect for patient autonomy
Promotion of social justice

/ In each ethical dilemma, consider how best to enhance the patients welfare, respect his autonomy, and promote justice

The particular emphasis on respect for autonomy, or the right to self-determination, is characteristic of modern 'Western' morality. In this view, patients are sometimes thought of as consumers.

What rights do consumers have in your country? What are the arguments for and against applying consumer rights to the doctor-patient relationship?

The following reference puts a historic perspective to moral reasoning in medical practice.

Pluralism

It is said that respect for the family and the community are generally valued more highly than individual and consumer rights by traditional 'Eastern' cultures. In the reference on the next screen Ip and colleagues describe their practice in Hong Kong. Feminists have claimed that women's values are inadequately addressed by standard ethical approaches, and that women would give greater weight to caring, empathy and the preservation of relationships than academic male ethicists do. Faiths and laws tend to recognise a sanctity of life, or at least of human life. The ethics to be applied in any clinical situation will therefore depend upon the religious and moral convictions of the patient and his health care professionals, and the culture of the institution in which care is delivered.
Surveys of critical care physicians' attitudes to ethical matters and their practice in making difficult choices show substantial individual and international variability. Indeed, some physicians report that they do not always act in the way they believe they ought. / Is there such a thing as a universal morality?

It is said that the commonest model of doctor-patient relationship in the intensive care unit is based on paternalism, and patient's rights advocates complain of being infantilised by the imbalance of medical knowledge.

Think / We have not mentioned social justice. How can an intensive care doctor serve both his patient and the interests of society?

Improving your ethical skills

A dilemma entails a necessary choice between two or more available options, each of which is in some way undesirable, and so it's resolution will entail a degree of compromise. It has been said that too much teaching of ethical theory can provide a new vocabulary of words with which to impress listeners, but which add nothing to understanding. Develop your practical wisdom and clinical judgment by considering and discussing ethical dilemmas, as you encounter them, with peers and teachers. This way you will accumulate a wealth of experience on which you can draw, comparing and contrasting each new dilemma with cases you have previously been party to resolving. Engage in discussions about difficult choices with your patients and, where appropriate, their families. Learn how to respect their point of view and win their trust so that difficult choices can be made in partnership. / You possess a sense of what is right and what is wrong, a moral intuition. Use practical clinical situations to learn to integrate this with ethical theory
Think / What influences your sense of right and wrong? To what extent did your parents, your teachers, your religion, or your exposure to the humanities (art, literature, performing arts) shape your personal ethic? Think of ethical attitudes which are widely held but different to your own and try to understand how they might have been formed.

The American College of Physicians has published a Manual which commends principlism and recommends 'a case method for ethical decision making'.

Making difficult decisions : Four considerations
Anecdote / In 1988 Samuel Linares, an infant with hypoxic brain injury, had been ventilated in a Chicago intensive care unit for eight months. His parents were visiting him when Mrs Linares left the room, and Mr Linares produced a pistol and instructed the staff to keep away. He then took his son in his arms, disconnected the ventilator, and cradled Samuel until he was dead. Mr Linares surrendered his weapon, and was arrested. A Grand Jury refused to issue a homicide indictment.

1/ The facts of the case

It is a professional responsibility to ensure that any ethical debate is informed by the relevant clinical facts, based on the best available evidence.
2/ Personal values
Communication / The patient, friends and family, health care professionals including nurses,doctors and others, may each have differing values and ethical approaches to some of the hard choices that arise from time to time in clinical practice. Expertise in negotiation and mediation will be of value in achieving consensus, if necessary provided by an ethicist. Health professionals must take care they do not impose personal values or use undue coercion to achieve only the reluctant acquiescence of the parties to the consensus.
3/ Professional custom, practice and ethical guidelines
Awareness of relevant institutional and national professional rules, and adherence to them, will define good clinical practice in your hospital and may minimise the incidence of moral dilemmas in your practice. Nonetheless there will always be 'hard cases' for which such rules alone do not point to a morally satisfactory answer. / Be aware of ethical guidance from national bodies applicable to practice in your country
4/ The law
National laws have been influenced by international agreements since the Geneva Conventions of 1864. Military Judges at the Nuremberg trials (1945- 1947) drew up the Nuremberg Code to protect human subjects of medical experiments, and the United Nations drew up a Declaration of Human Rights (1948) which has been the predecessor of the European Convention on Human Rights, which is given great weight in European laws. Politicians and judges often recognise that the patient and public interest lies in accepting responsible medical opinion and accepted medical practices will usually, therefore, be legal. However, the law does from time to time disapprove of practices that professional consensus holds to be 'ethical'. In the west, the law often puts precedence on the rights of the individual relative to those of the 'community'.
/ Law has the final word when there is conflict or disagreement between parties.
For more about the Nuremberg code, see:

In some countries and in some institutions, clinical ethics consultations are available to assist with difficult decisions.
Give some examples of proposed practices that might be 'ethical' yet 'unlawful', or 'lawful' but 'unethical'.
/ Look at the European Convention on Human Rights - first link below [click Treaties, Convention for the Protection of Human Rights and Fundamental Freedoms CETS No. 005] - especially Articles 2-12 and 14. Consider how they might influence the rights of patients. Visit the World Medical Association's website - second link below - and examine the Declarations of Helsinki and Geneva. Consider how they are applicable to your intensive care practice and research.
2/ Issues of consent
We will take as our starting point the ethical principle that each person has a right to self-determination, and is entitled to have their autonomy respected. The classic legal formulation comes from a decision by Justice Cardozo in a New York case in 1914; 'Every human being of adult years and sound mind has a right to determine what shall be done with his own body: and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages.'
Voluntary treatment: Informed consent
Seeking consent to treatment is an essential part of respect for a patient's autonomy. The successful delivery of health care requires the patient (and/or his guardian/s and carer/s) to be informed of the proposed treatment and its consequences, instructed about his contribution, and to be a willing and active participant. Before a patient is asked to give his consent therefore, he should be given information about the nature, benefits and significant risks of the proposed treatment. Where appropriate, he should also be advised of alternatives to the proposed treatment, including the option of no treatment. A practitioner can be found guilty of negligence if he falls short of the standard of care expected in gaining his patients consent; typically, a claim will be made when a patient suffers a complication of which s/he was not forewarned. / It is fashionable to talk of informed consent, but whether consent can be anything other than 'informed' is debatable
The legal purpose of consent includes the protection of the practitioner from a criminal charge of trespass; see, for instance the words of Justice Cardozo . The standards of consent required to protect a practitioner from either professional liability or a charge of trespass varies from country to country. In exceptional circumstances, the law may grant a doctor a 'therapeutic privilege' to withhold relevant information from a competent patient where she believes that disclosure would cause undue harm to the patient. The following reference analyses the important concept of consent.
Refusal of treatment
Logically, the right to consent to treatment means nothing if the patient may not also refuse treatment. In practice we rarely question a patient's ability to consent, but when the patient refuses a treatment which the doctor sees as important to the preservation of life and health, her consideration will turn to whether the patient is of sound mind. The responsibility for deciding whether a patient is competent to decide lies with a medical practitioner. / Fit to refuse?
Decision-making capacity
Justice Cardozo mentioned 'sound mind'. What do we mean by that today?In the French study referenced on the next screen, a mini-mental state test was used as a screening test for competence in critically ill adults. When you have reason to doubt a person's decision-making capacity you should determine whether the person understands and remembers information he is given about the treatment, and has the ability to weigh the information before making a free choice. Importantly, you should not decide the patient lacks capacity merely on the grounds that he has a psychiatric illness, is receiving drugs which affect the mind, is mentally distressed, has previously changed his mind, or that the choice he makes is illogical, self-harming, or one with which that you happen to disagree. / Across the western world, persons who have reached the age of majority are presumed to have the capacity to give or withhold their consent to proposed medical treatment, but this presumption may sometimes be rebutted
When there is doubt about a patient's capacity and the choice he wishes to make is contrary to medical advice, get an expert opinion from a psychiatrist. We will consider how to deal with the patient who lacks decision-making capacity later.
Five elements of informed consent
We can summarise the consent process in the following way:

The doctor should disclose relevant information on which the patient may make a decision.
The patient should (be able to?) understand the information.
The patient should be competent to weigh the information.
The patient should be at liberty to make a truly voluntary choice free of undue influence by others.
The patient or guardians/representative should make a decision.

Involuntary treatment: The public interest

When a competent person refuses appropriate medical treatment it would normally be unethical and illegal to administer treatment 'involuntarily'. The law will often make provision for involuntary treatment of certain patients.
Under what circumstances could we be justified in treating competent patients against their expressed wishes?
Advance directives (living wills)
In many countries the law has extended the right of self-determination to include the right to make advance directives. Advance directives can be used to indicate the patient's wishes and values in the event that they should lose decision-making capacity. This may include nominating a person to make decisions on their behalf.