HEALTH CARE ETHICS

HEALTH CARE ETHICS.

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HEALTH CARE ETHICS

Critical Issues for the 21st Century

FOURTH EDITION

Edited by Eileen E. Morrison, EdD, MPH, LPC,

CHES Professor, School of Health Administration

Texas State University, San Marcos San Marcos, Texas

Beth Furlong, PhD, JD, RN Associate Professor Emerita, Center for Health

Policy and Ethics Creighton University Omaha, Nebraska

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Library of Congress Cataloging-in-Publication Data Names: Morrison, Eileen E., editor. | Furlong, Elizabeth, editor. Title: Health care ethics: critical issues for the 21st century / edited by Eileen Morrison, Beth Furlong. Other titles: Health care ethics (Morrison) Description: Fourth edition. | Burlington, Massachusetts: Jones & Bartlett Learning, [2019] | Includes bibliographical references and index. Identifiers: LCCN 2017043204 | ISBN 9781284124910 (pbk.: alk. paper) Subjects: | MESH: Bioethical Issues | Delivery of Health Care—ethics | Ethics, Clinical Classification: LCC R724 | NLM WB 60 | DDC 174.2— dc23 LC record available at https://lccn.loc.gov/2017043204

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Writing is always a collaboration. While writers have unique ways of seeing the world, they are influenced by their experiences, research,

and education. Therefore, I dedicate this edition of Health Care Ethics: Critical Issues for the 21st Century to all those who contributed to

chapters in this work and those who supported me through its creation. First, there is my immediate family, Grant, Kate, Emery Aidan, and

Morrigan Leigh, who listened and encouraged. There are also colleagues, relatives, and friends who provided feedback and a lift of spirit when I needed it. Finally, there is my publisher, Michael Brown; my coeditor, Beth Furlong; and my Jones & Bartlett Learning editor,

Danielle Bessette. They each added much to the quality and integrity of this work.

–Eileen E. Morrison

Mentors facilitate one’s journey. My gratitude goes to Dr. Amy Haddad and colleagues at Creighton University’s Center for Health Policy and

Ethics. I value the ever-present support of my husband, Robert Ramaley. Furthering the ethics education of others with this book is possible because of the collegiality and support of my coeditor, Dr.

Eileen Morrison. It has been a professional pleasure to work with her.

–Beth Furlong

Contents

Contributors About the Editors Preface

PART I Foundations in Theory

Chapter 1 Theory of Healthcare Ethics Introduction

Ethics and Health Care

Ethical Relativism

Ethics Theories

Ethics Theories and Their Value to Healthcare Professionals

Summary

Questions for Discussion

Notes

Chapter 2 Principles of Healthcare Ethics Introduction

Nonmaleficence

Beneficence

Autonomy

Theories of Justice

Reflective Equilibrium as a Decision-Making Model

Summary

Questions for Discussion

Notes

PART II Critical Issues for Individuals

Chapter 3 The Moral Status of Gametes and Embryos: Storage and Surrogacy Introduction

The Moral Community

Making Decisions

Surrogacy

Storage

Summary

Questions for Discussion

Additional Readings

Notes

Chapter 4 The Ethical Challenges of the New Reproductive Technologies

Introduction

Two Inadequate Approaches to Evaluating Alternative Reproductive Technology

A Basis for Developing an Ethical Position

A Proposed Ethical Standard

The Family

Donors and the Cultural Ethos

Summary

Questions for Discussion

Notes

Chapter 5 Ethics and Aging in America Introduction

The Growing Population Needing Care

Issues of Access

Forces for Improving Access

What Are the Prospects for Improved Access?

Update from a Practitioner’s View

Summary

Questions for Discussion

Additional Resources

Notes

PART III Critical Issues for Healthcare Organizations

Chapter 6 Healthcare Ethics Committees: Roles, Memberships, Structure, and Difficulties

Introduction

Why an Ethics Committee?

The Function and Roles of Ethics Committees

Ethics Committee Membership

The Healthcare Ethics Committee’s Background and Education

Institutional Commitment

Challenges for Healthcare Ethics Committees

Update from a Practitioner’s View

Summary

Questions for Discussion

Notes

Chapter 7 Ethics in the Management of Health Information Systems Introduction

Operational Definitions

Ethical Dilemmas Involving Data on HISs

Smartphone Network of Healthcare Awareness—Good Idea or Violation of Privacy?

Is Health Care a Right or a Benefit? What Data Protection Should Be Provided to PHI?

Ethical Decision-Making Models for the Management of HIM

Acknowledgment

Questions for Discussion

Notes

Chapter 8 Technological Advances in Health Care: Blessing or Ethics Nightmare?

Introduction

Medical and HIT Defined

The Ethical Obligation

Science and Technology Innovations and Ethics Concerns

Recent Innovations Involving Technology and Their Ethics Concerns

HIT and the Medical Group Practice

Summary

Questions for Review

Notes

Chapter 9 Ethics and Safe Patient Handling and Mobility Introduction

Extent of the Problem

Problem-Solving

Ethics Concerns

Summary

Questions for Discussion

Notes

Chapter 10 Spirituality and Healthcare Organizations Introduction

Evidence-Based Practice: The Answer and the Challenge

This Thing Called Spirituality

Is There a Place for Spirituality in the Healthcare Workplace?

Spirituality in the Business of Health Care

Integration of Spirituality into Healthcare Workplaces

Ethics Theories and Spirituality

Ethics Principles and Spirituality

Summary

Questions for Review

Notes

Chapter 11 A New Era of Health Care: The Ethics of Healthcare Reform Introduction

Healthcare Reform in the United States

Health System Reform in the 20th Century

Key Provisions of the Healthcare Reform Legislation of 2010 (ACA)

How Well Have the Reforms Met the Expectations of a Just Healthcare System?

Ethics Considerations Underlying Healthcare Reform

Summary

Questions for Discussion

Notes

PART IV Critical Issues for Society’s Health

Chapter 12 Health Inequalities and Health Inequities Introduction

What Are Health Inequalities?

Why Are Some Health Inequalities also Health Inequities?

How Can We Measure Health Inequalities?

What Is the Best Way to Reduce or Eliminate Health Inequalities?

Conclusion

Summary

Questions for Discussion

Notes

Chapter 13 The Ethics of Epidemics Introduction

Epidemics, Ethics, and Public Health

Modern Epidemics

Determination of the Decision-Making Responsibility: Individual Autonomy Versus Paternalism

International Perspectives and the Bioethics Model

Summary

Questions for Discussion

Acknowledgment

Notes

Chapter 14 Ethics of Disasters: Planning and Response Introduction

Disasters in U.S. History

Disaster Planning and Response by the Federal Government

Disaster Preparedness and Response for Healthcare Institutions

Professional Readiness for Disasters

Individual Response to Disasters

Update from a Practitioner’s Point of View

Summary

Questions for Discussion

Notes

Chapter 15 Domestic Violence: Changing Theory, Changing Practice Introduction

Personal and Social Barriers

Systemic Barriers

Impact of Theory on Clinical Practice

Structural Constraints

Implications for Training and Practice

Conclusion

Summary

Questions for Discussion

Notes

Chapter 16 Looking Toward the Future Introduction

New Considerations in Ethics Theory

Summary

Questions for Discussion

Notes

Glossary

Index

Contributors

Omolola Adepoju, PhD, MPH Assistant Professor School of Health Administration College of Health Professions Texas State University San Marcos, TX

Karen J. Bawel-Brinkley, RN, PhD Professor School of Nursing San Jose State University San Jose, CA

Sidney Callahan, PhD Distinguished Scholar The Hastings Center Garrison, NY

Kimberly A. Contreraz, BSN, MSN, FNP, ACHPN Director of Palliative Care St. Vincent Anderson Regional Hospital Anderson, IN

Dexter R. Freeman, DSW, LCSW Director Master of Social Work Program Army Medical Department Center & School Army-Fayetteville State University Houston, TX

Janet Gardner-Ray, EdD CEO Country Home Healthcare, Inc. Charlottesville, IN

Glenn C. Graber Professor Emeritus Department of Philosophy The University of Tennessee Knoxville, TN

Nicholas King, PhD Assistant Professor Biomedical Ethics Unit McGill University Faculty of Medicine Montreal, QC, Canada

Scott Kruse, MBA, MSIT, MHA, PhD, FACHE, CPHIMS, CSSGB, Security+, MCSE

Assistant Professor and Graduate Programs Director School of Health Administration College of Health Professions Texas State University San Marcos, TX

Christian Lieneck, PhD, FACMPE, FACHE, FAHM Associate Professor School of Health Administration College of Health Professions Texas State University San Marcos, TX

Richard L. O’Brien, MD University Professor Emeritus Creighton University Omaha, NB

Robert W. Sandstrom, PT, PhD Professor and Faculty Associate School of Pharmacy and Health Professions Creighton University Omaha, NB

Jim Summers, PhD Professor Emeritus School of Health Administration College of Health Professions Texas State University San Marcos, TX

Carole Warshaw, MD Director National Center on Domestic Violence, Trauma & Mental Health Chicago, IL

Michael P. West, EdD, FACHE Executive Director University of Texas Arlington-Fort Worth Campus Fort Worth, TX

About the Editors

Eileen E. Morrison is a professor in the School of Health Administration at Texas State University, San Marcos, Texas, USA. Her educational background includes a doctorate from Vanderbilt University, Nashville, Tennessee, USA, and a master of public health degree from the University of Tennessee, Knoxville, Tennessee, USA. In addition, she holds an associate degree in logotherapy and a clinical degree in dental hygiene.

Dr. Morrison has taught graduate and undergraduate courses in ethics and provided workshops to professionals, including those in medicine, nursing, clinical laboratory services, health information, and dentistry. She has also authored articles and chapters on ethics for a variety of publications. In addition, she is the author of Ethics in Health Administration: A Practical Approach for Decision Makers (3rd ed.), published by Jones & Bartlett

Learning, and a children’s book called The Adventures of Emery the Candy Man.

Beth Furlong is an associate professor emerita and adjunct faculty in the Center for Health Policy and Ethics at Creighton University, Omaha, Nebraska, USA. Her academic background includes a diploma, BSN, and MS in nursing, an MA and PhD in political science, and a JD. Dr. Furlong has taught graduate ethics courses and provided continuing education unit (CEU) workshops for nurses on ethics issues. Her publications are in the areas of health policy, vulnerable populations, and ethics.

Preface

he history of health care is filled with change. For example, providers and systems have embraced changes that lead to cures for disease, new ways to

care for patients, regulation, and funding. However, during the creation of this fourth edition of Health Care Ethics: Critical Issues for the 21st Century, the healthcare system has been in change overload. It must address changes from technology, the emphasis on patient-centered care, and fiscal challenges. It is also trying to address the truly unknown. For example, legislators continue to consider the appeal of the Patient Protection and Affordable Care Act of 2010, while others are debating its repair. Since healthcare funding, programs, and regulations are linked to this legislation, the healthcare system will continue to engage in multilayers of contingency planning for survival and service.

Readers will also notice changes in this edition as its authors consider the implications of change with respect to their content areas. However, the fourth edition still reflects the organizational model that was used in previous editions. Therefore, the Greek temple image remains its organizational framework as a model for addressing ethics issues in health care (see Figure FM.1).

Like all buildings, this temple needs a firm foundation and ethics theory and principles serve this purpose. It also makes sense if one is going to be able to analyze the ethical implications of an issue. An appropriate analogy would be that a surgeon cannot be successful unless he or she understands human anatomy. Likewise, a student who wishes to analyze the ethics of a particular issue in health care must have knowledge of theories and principles of ethics. Dr. Summers provides a strong foundation for applying ethics in the chapters “Theory of Healthcare Ethics” and “Principles of Healthcare Ethics” of this edition.

FIGURE FM.1 Healthcare Ethics Organizational Model.

The three main pillars of the temple model illustrate sections to organize the ethics issues faced in healthcare situations. Note that the center pillar represents individuals who are called patients in the healthcare system. This is because the healthcare system would not function unless there are patients who need care. The remaining two pillars represent issues relevant to healthcare organizations and society and reflect challenges to the future of healthcare organizations and their ability to care for patients.

Given the current environment in the healthcare system, the potential for chapters and their content was extensive. The challenge for the writers was to select example of topics that represent ethics challenges for the future and avoid a non-readable tome. While it was not possible to address each potential issue, topics were updated and

expanded within a 16-chapter format. For example, under the “Critical Issues for Individuals” section, attention was given to the most vulnerable patients. Therefore, there are chapters related to the moral status of embryos and infants and reproductive technology. To address patients at the other end of the life continuum, major revisions were made to the discussion of aging patients and the ethics of their care. The other pillars of healthcare organizations and society also include major revisions of existing chapters. New chapters that reflect current ethics issues in today’s environment have also been added. For example, there are chapters on the ethics of health information management and the ethics of epidemics.

Health care is truly in the epoch of change, but ethics will always matter. Even experts in ethics and health care cannot predict the future of health care with absolute certainty. However, this does not mean that ethics should not be part of making decisions amid a challenging environment. In fact, the ethics of what we do maybe even more important because health care is always held to a higher standard, even when it must meet unknown challenges.

However, Morrison and Furlong are optimistic that students will continue to ask themselves, “Is this the best ethical decision to make?” and “How do I know that this it is the best?” as they progress through their careers. Patients, healthcare organizations, and the community rely on their answers so that health care can be patient-

centered, cost-effective, and fiscally responsible. What a challenging combination to face in the epoch of change!

PART I Foundations in Theory

Change is not new, but it appears to be the theme of the current era of health care. The Patient Protection and Affordable Care Act (ACA 2010) became a law in 2010 and created major changes in the health care system. Regardless of the outcome of its status, healthcare organizations will be expected to provide patient-centered care that complies with legislation, uses qualified and compassionate professionals, and is conducted with fiscal responsibility. In addition, the foundation of health care must also be centered in ethical policies and action.

To address necessary ethics-based decisions amid an environment of consistent change, you must have a foundation in ethics theory and principles. While some think that ethics is just about “doing the right thing,” in an epoch of change, one must justify decisions. In addition, the professionals employed in healthcare settings have ethics guidelines and duties encoded in their practices. Of course, patients expect healthcare providers and facilities to be concerned about their best interests, which include ethical behavior and practices. How can you justify your decisions in the practice or administration with an ethics rationale? The first section of this new edition of Health Care Ethics: Critical Issues for the 21st Century begins with two chapters that will provide this foundation.

The foundation in ethics theory and principles provided in the chapters “Theory of Healthcare Ethics” and “Principles of Healthcare Ethics” give you practical tools for analyzing ethics-related issues. In the chapter “Theory of Healthcare Ethics,” Dr. Summers presents a well-researched

overview of the theories commonly used in healthcare ethics. He includes a model that illustrates the position of ethics in philosophy. Following that, he discusses theories that indirectly relate to healthcare, such as authority-based ethics, egoism, and ethical relativism. Then, he provides a thorough analysis of theories that are most commonly applied in healthcare practice. These include natural law, deontology, utilitarianism, and virtue ethics. In his discussions, he uses several examples to improve understanding concerning the application of these theories in professional practice.

In the chapter “Principles of Healthcare Ethics,” Summers continues his scholarly discussion of ethics by presenting the most commonly used ethics principles in health care. These principles are nonmaleficence, beneficence, autonomy, and justice. Because justice is the most complex of the four, he provides additional definitions of types of justice and includes information for making decisions about justice in healthcare practice. At the end of the chapter, Summers also presents a decision-making model called the reflective equilibrium model. This model demonstrates the application of ethics theory and principles in the practice of making clinical and business decisions.

You can apply the information given in these two chapters to your understanding of the remaining chapters in this edition. You will find that having a solid grounding in theory and principles will allow you to have greater clarity in making ethics-based decisions in your own area of

health care. Certainly, as Summers suggests, principles and theory should be an important part of your ethical decision-making throughout your practice of health care.

CHAPTER 1 Theory of Healthcare Ethics Jim Summers

I Introduction

n this chapter, Dr. Summers provides a scholarly review of the main theories that apply to the ethics of healthcare situations. Why is knowledge of theory

important to busy healthcare professionals? In this time of great change and challenge within the healthcare system, there is a need to apply ethics in all types of decision- making. To make this application successfully, one needs a foundation in ethics, in addition to data and evidence- based management tools, including those offered by advanced technologies. An understanding of ethics theory gives you the ability to make and defend ethics-based decisions that support both fiscal responsibilities and patient-centered care. While these kinds of decisions are difficult, without a foundation in ethics theory, they might prove impossible. Therefore, this chapter and the one that follows, on the principles of ethics, will serve as your ethics theory toolbox.

Ethics and Health Care From the earliest days of philosophy in ancient Greece, people have sought to apply reason in determining the right course of action for a particular situation and in explaining why it is right. Such discourse is the topic of normative ethics. In the 21st century, issues resulting from technological advances in medicine will provide challenges that will necessitate reasoning about the right course of action. In addition, healthcare resource allocations will become more vexing as new diseases threaten, global climate change continues apace, and ever more people around the world find their lives increasingly desperate. In the Patient Protection and Affordable Care Act of 2010 (ACA 2010) era, managers of healthcare organizations will find the resources to carry out their charge increasingly constrained by multiple levels of change, differences in payment structures, and labor shortages. A foundation in ethics theory and ethical decision-making tools can assist healthcare leaders in assessing the choices that they must make in these vexing circumstances.

With the current emphasis on patient-centered care, knowledge of ethics can also be valuable when working with healthcare professionals, patients and their families, and policy makers. In this sense, ethical understanding, particularly of alternative views, becomes a form of cultural competence. However, this chapter is limited to a1

discussion of normative ethics and metaethics. Normative ethics is the study of what is right and wrong; metaethics is the study of ethical concepts. Normative ethics examines ethics theories and their application to various disciplines, such as health care. In health care, ethical concepts derived from normative theories, such as autonomy, beneficence, justice, and nonmaleficence, often guide decision-making.

As one might suspect, when normative ethics seeks to determine the moral views or rules that are appropriate or correct and to explain why they are correct, major disagreements in interpretation often result. These disagreements influence the application of views in many areas of moral inquiry, including health care, business, warfare, environmental protection, sports, and engineering. FIGURE 1.1 lists the most common normative ethics theories to be considered in this chapter. Although no single theory has generated consensus in the ethics community, there is no cause for despair.

FIGURE 1-1 Normative ethics theories.

The best way to interpret these various ethics theories, some of which overlap, is to use the analogy of a toolbox.

Each of these theories provides tools that can assist with decision-making. One advantage of the toolbox approach is that you will not find it necessary to choose one ethics theory over another for all situations. You can choose the best theory for a task, according to the requirements of your role and the circumstances. Trained philosophers will find flaws with this approach, but the practical advantages will suffice to overcome these critiques.

All of the theories presented have a value in the toolbox, although like any tools, some are more valuable than others. For example, I can argue that virtue ethics has much value for healthcare applications. Before explaining why this chapter has chosen to present particular theories, a quick overview is in order.

Authority-based theories can be faith-based, such as Christian, Muslim, Jewish, Hindu, or Buddhist ethics. They can also be purely ideological, such as those based on the writings of Karl Marx (1818–1883) or on capitalism. Essentially, authority-based theories determine the right thing to do on the basis of what an authority has said. In some cultures, the authority is simply “that is what the elders taught me” or “that is what we have always done.” The job of the ethicist is to determine what that authority would decree for the situation at hand.

Natural law theory, as considered here, uses the tradition of St. Thomas Aquinas (1224–1274) as the starting point of interpretation. The key idea behind natural law is that nature has order both rationally and in

accordance with God’s wisdom or providence. The right thing to do is that which is in accord with the providentially ordered nature of the world. In health care, natural law theories are important because of the influence of the Roman Catholic Church and the extent to which the Church draws on Aquinas as an early writer in the field of ethics. Several important debates, such as those surrounding abortion, euthanasia, and social justice, draw on concepts with roots in natural law theory.

Teleological theories consider the ethics of a decision to be dependent on the consequences of the action. Thus, these theories are called consequentialism. The basic idea is to maximize the good of a situation. The originators of one such theory, Jeremy Bentham (1748– 1832) and John Stuart Mill (1806–1873), called this maximization of good utility; thus, the name of their theory is utilitarianism.

Deontological theories find their origins in the work of Immanuel Kant (1724–1804). The term deon is from Greek and means “duty.” Thus, deontology could be called the science of determining our duties. Most authors place Kant in extreme opposition to consequentialism, because he argued that the consequences themselves are not relevant in determining what is right. Thus, doing the right thing might not always lead to an increase in the good. More contemporary deontologists, including John Rawls (1921–2007) and Robert Nozick (1938–2002), reached antithetical conclusions about what our duties might be.

Virtue ethics has the longest tenure among all of these

Virtue ethics has the longest tenure among all of these views, except for authority- based theories. Its roots can be traced to Plato (427–347 BCE) and Aristotle (384–322 BCE). The key idea behind virtue ethics is to find the proper end for humans and then to seek that end. In this sense, people seek their perfection or excellence. Virtue ethics comes into play as people seek to live virtuous lives, developing their potential for excellence to the best of their abilities. Thus, virtue ethics addresses issues any thinking person should consider, such as “What sort of person should I be?” and “How should we live together?” Virtue ethics can contribute to several of the other theories in a positive way, particularly in the understanding of professional ethics and in the training necessary to produce ethical professionals.

Egoistic theories argue that what is right is that which maximizes a person’s self-interest. Such theories are of considerable interest in contemporary society because of their relationship to capitalism. However, the ethical approach of all healthcare professions is to put the interests of the patient above the practitioner’s personal interests. Even when patients are not directly involved, such as with healthcare managers, the role is a fiduciary relationship, meaning that patients can trust that their interests come before those of the practitioners. Egoistic theories are at odds with the value systems of nearly all healthcare practitioners.

Ethical Relativism Before exploring any of these ethics theory tools in depth, it is first necessary to confront the relativist argument, which denies that ethics really means anything. Those who deal with ethical issues, whether in everyday life or in practice, will inevitably hear the phrase “It is all relative.” Given that the purpose of this text is to help healthcare professionals deal with real-world ethical issues, it is important to determine what this phrase means and what the appropriate course of action is. Philosophers have not developed a satisfactory ethics theory that covers every situation. In fact, they are expert at finding flaws in any theory; thus, no theory will be infallible. In addition, different cultures and different groups have varying opinions about what is right and wrong and how to behave in certain situations.

Does the fact that people’s views differ mean that any view is acceptable? This appears to be the meaning of such statements as “It is all relative.” In that sense, deciding that something is right or wrong, or good or bad, has no more significance than choices of style or culinary preferences. Thus, ethical decision-making and practice is a matter of aesthetics or preferences, with no foundation on which to ground it. This view makes a normative claim that there is no real right, wrong, good, or bad.

One could equally say that there is no truth in science, because scientists disagree about the facts and can prove nothing, only falsify it by experiment. However, the intrinsic lack of final certainty in the empirical sciences does not render them simply subjective. As one commentator on the rapid changes in scientific knowledge put it, these changes reveal “the extraordinary intellectual and imaginative yields that a self-critical, self-evaluating, self-testing, experimental search for understanding can generate over time.” Why should we expect any less of ethics?

Sometimes, there is a claim made that because there are many perspectives, there cannot be a universal truth about ethics. Therefore, we are essentially on our own. Hugh LaFollette argued that the lack of an agreed-upon standard or the inability to generalize an ethics theory does not render ethical reasoning valueless. Rather, the purpose of ethics theories is to help people decide the right course of action when faced with troubling decisions. Some ethics theories work better in some situations than in others. The theories themselves provide standards, akin to grammar and spelling rules, as to making decisions and supporting them with a particular theory.

Thus, even though ethics might not produce the final answers, we still must make decisions. Ethics theories and principles are tools to help us in that necessary endeavor. The lack of absoluteness in ethics theory also does not eliminate rationality. Often, we simply must apply our rationality without knowing whether we are correct. The

better our understanding is of ethics, the more likely it is that the decision we reach will be appropriate. The ability to reach the appropriate decision is especially important in the field of health care, where our decisions affect the health, well-being, and even the lives of our patients.

Ethics Theories Let us begin to examine the tools in the toolbox, not only knowing that we are fallible, but also knowing that we are rational. The first tool has little application to healthcare ethics; however, it is widely believed and therefore needs to be addressed. It involves the idea of egoism in ethics.

Egoism Egoism operates from the premise that people either should (a normative claim) seek to advance solely their self-interests or (psychologically) this is actually what people do. The normative version, ethical egoism, sets as its goal the benefit, pleasure, or greatest good of the self alone. In modern times, the writings of Ayn Rand and her theory of objectivism have popularized the idea of ethical egoism. For example, Rand said, “The pursuit of his own rational self-interest and of his own happiness is the highest moral purpose of his life.” This is a normative statement and a reasonable description of ethical egoism.

Although this theory has importance to the larger study of ethics, it is less important in healthcare ethics because the healing ethic itself requires a sublimation of self-interests to those of the patient. A healthcare professional who fails to do this is essentially not a healthcare professional. No codes of ethics in the healthcare professions declare the

9 10

interests of the person in the professional role to be superior to those of the patient.

Healthcare professionals who do not understand the need to sublimate their own interests to those of the patient or their role have not yet become true healthcare professionals. An understanding of the need to sublimate one’s own interests for the sake of the patient is essential in providing patient-centered care, which has become a key emphasis in healthcare delivery.

Although occasionally healthcare professionals do not put the patient’s best interests first, it is not a goal of the profession to put one’s self ahead of the client or patient. A realist might complain, “Yet this is the way most people behave!” Although that may be true, the fact that many people engage in a particular kind of behavior does not make it into an ethics theory. Ethical egoism constitutes more of an ethical problem than anything else. Most people who think of an ethics theory consider it something that is binding on people. However, ethical egoism is not binding on anyone else beyond self-interest. It is not binding on all (i.e., normative) and, thus, does not meet the criteria of a true ethics theory but is simply a description of human behavior. Indeed, to care for someone else above your self-interest, as required by codes of ethics in health care, is antithetical to the human behavior of truly pursuing only your self-interest. Later, we shall see how Rawls uses the idea that people pursue their self-interests to develop a theory of a just society in which solidarity seems to be the outcome, as opposed to

the extreme individualism ethical egoism typically suggests.

Authority-Based Ethics Theories Most teaching of ethics ignores religion-based ethics theories, much to the chagrin of those with deep religious convictions. A major problem with these theories is determining which authority is the correct one. Authority- based approaches, whether based on a religion, the traditions or elders of a culture, or an ideology, such as communism or capitalism, have flaws relative to the criteria needed to qualify as a normative ethics theory. Each of the authority-based approaches, to be an ethics theory, must claim to be normative relative to everyone. Because many of these authority-based approaches conflict, there is no way to sort them out other than by an appeal to reason. Not only do we have the problem of sorting through the ethical approaches, but also arguments inevitably arise concerning the religion itself and its truth claims. If two religions both claim to be inerrant, it is difficult to find a way to agree on which of the opposing inerrant authorities is correct.

In spite of the philosophical issues arising from the use of religion in healthcare ethics, it is important for healthcare providers to understand the role of religions and spirituality in healthcare delivery. For example, all religions provide explanations of the cause or the meaning of disease and suffering. Many theologies also encourage believers to take steps to remove or ameliorate causes of disease and

suffering. Over the millennia, some of these religions have even formalized their positions by becoming involved with healthcare delivery by providing inpatient and hospital care.

In addition, patients often have religious views that help them understand and cope with their conditions. Understanding a person’s faith can help the clinician and health administrator provide health care that is more patient-focused. For some patients, an ethical issue may arise if their faith or lack of faith is neither recognized nor respected. This failure to address or respect the faith needs of patients also conflicts with the tenets of patient- centered care.

Beyond direct patient care, a second reason to understand the authority-based philosophies common in the healthcare environment is their effect on healthcare policy. The role of authority-based ethical positions appears to be gaining importance in the 21st century. Effective working within the health policy arena, whether at the institutional, local, regional, state, federal, or international level, requires an understanding of the influence of the religious views of those involved in the debates and negotiations. This knowledge can only serve to strengthen your ability to reason with them. In other words, it is important to understand the “common” morality of those engaged in the debate. The greater the diversity in beliefs and reasoning, the more important the need for understanding what those beliefs and reasoning might be.

Religion also plays an important role in the creation of healthcare policy, because religions have provided a multiplicity of philosophical answers to questions about the nature and truth of the world. They also provide guidance on that how we should act in the world. They explain what is right or wrong and why it is right or wrong. They also help people define their identities, roles in the world, and relationships to one another. In addition, religions help us understand the nature of the world and our place in it.

Thus, as a tool, understanding authority-based philosophical systems has value because it can help in the treatment of patients. It also increases your understanding regarding the positions of persons who may be involved in debates over healthcare issues, such as resource allocations, or clinical issues such as abortion. In addition, it is important to understand authority-based philosophical systems relative to yourself. As a healthcare professional, your role requires that you do not impose your religious views on patients. At the same time, it is not part of the role for you to accept the imposition of another’s religious values, even those of a patient.

These complex issues relate to professional ethics and are not part of the scope of this chapter. However, it does seem incumbent on all healthcare professionals to evaluate their own faith and to recognize the extent to which they might impose it on others. From the earliest tradition of Hippocrates, the charge was to heal the illness and the patient. More recently, the Declaration of Geneva from the World Medical Association stated that members

of the medical profession would agree to the following statement: “I will not permit considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, social standing or any other factor to intervene between my duty and my patient.” In addition, patient-centered care requires that healthcare professionals avoid judging patients and treat them as individuals with a caring and concerned manner. Let us now turn our attention to the oldest non-authority- based ethics theory—virtue ethics.

Virtue Ethics Virtue ethics traces its roots most especially to Aristotle (384–322 BCE). Aristotle sought to explain the highest good for humans. Bringing the potential of that good to actualization requires significant character development. This concept of character development falls into the area of virtue ethics because its goal is the development of those virtues in the person and the populace.

Aristotle’s ethics derived from both his physics and his metaphysics. He viewed everything in existence as moving from potentiality to actuality. This is an organic view of the world, in the sense that an acorn seeks to become an oak tree. Thus, your full actuality is potentially within you. As your highest good, your potential actuality is already inherent because it is part of your nature; it only needs development, nurture, and perfecting. This idea is still part of the common morality.

Finding Our Highest Good Just what did Aristotle conclude was our final cause or our highest good? The term Aristotle uses for this is eudaimonia. The typical translation is “happiness.” However, this translation is inadequate, and many scholars have suggested enhancements. Many writers prefer to use the translation “flourishing.” Because any organic entity can flourish, such as a cactus, so the term is not an adequate synonym.

The major complaint about translating eudaimonia as “happiness” is that our modern view of happiness would render it subjective. No one can know whether you are happy or you aren’t; you are the final arbiter. Aristotle thought eudaimonia applied only to humans because it required rationality that goes beyond mere happiness. In addition, Aristotle’s eudaimonia includes a strong moral component that is lacking from our modern understanding of happiness. In this sense, “happiness” would necessarily include doing the right thing, that is, being virtuous. Others could readily judge whether you were living a virtuous or “happy” life by observing your actions.

For Aristotle, happiness is not a disposition, as in “he is a happy sort.” Eudaimonia is an activity. Indeed, children and other animals unable to engage self-consciously in rational and virtuous activities cannot yet be in the state translated as Aristotle’s “happy.” Because it is commonplace to describe children as being “happy,” this is clearly not an adequate translation. Given these translation problems, I shall use the term eudaimonia

rather than its translations of “happiness” or “flourishing.” Essentially, you can understand eudaimonia best as a perfection of character nurtured by engaging in virtuous acts over a life of experience.

The most important element of eudaimonia is the consideration of what it takes to be a person of good character. Such a person seeks to develop excellence in himself or herself. Because Aristotle recognized the essential social and political nature of humans, developing individual excellence would also have to include consideration of how we should live together.

Developing a Professional as a Person of Character Consider what it takes to develop a competent and ethical healthcare professional. The process involves a course of study at an accredited university taught by persons with credentials and experience in the field. It also includes various field experiences, such as clerkships, internships, and residencies or clinical experiences with patients. Part of the education includes coming to an understanding of what behaviors are appropriate for the role, which is the definition of professional socialization.

For all healthcare professions, the educational process includes a substantial dose of the healing ethic by specific instruction or by observation of role models. The most fundamental idea behind this healing ethic teaches healthcare professionals to sublimate their self-interests to the needs of the patient. This education also includes

recognition of the idea that the healing ethic means first doing no harm and second that whatever actions are done should provide a benefit.

An Example of Professional Socialization: The Character of a Physician The goal of professional education and socialization is to produce healthcare professionals of high character. Many professional ethics codes describe the character traits that define high character, or what could be called virtues. For example, the 2016 American Medical Association statement of the principles of medical ethics notes that the principles are “standards of conduct which define the essentials of honorable behavior for the physician.” Essentially, the principles define the appropriate character traits or virtues for a physician.

Relative to virtue ethics, these traits or virtues combine to create not only a good physician but also a person of good character. Like Aristotle’s person of virtue, engaging in the activities of eudaimonia produces practical wisdom. “Moral virtue comes about as a result of habit.” The virtues come into being in us because “we are adapted by nature to receive them, and they are made perfect by habit.”

Not only is practice required, but the moral component is essential, too. Good physicians are not merely technically competent; they are persons of good character. How do we know this? Their actions coalesce to reveal integrity in all levels of their practice. In addition, a physician or any other person of good character does not undertake to do

what is right simply to appear ethical. In a modern sense, the properly socialized physicians have internalized the ethical expectations of their profession. To do the right thing is part of their identities.

To use Aristotle’s term, physicians have become persons of practical wisdom. In describing practical wisdom, Aristotle says the following:

[I]t is thought to be the mark of a man of practical wisdom to be able to deliberate well about what is good and expedient for himself, not in some particular respect, e.g. about what sorts of things conduce to health or to strength, but about what sorts of things conduce to the good life in general.

The mere fact that inculcation of such character traits is so important in all healthcare professions indicates that these ancient teachings are part of the common morality, or at least the professional morality of healthcare professions. In short, persons of virtue nurture eudaimonia because they believe it is the right way to live and that “[w]ith the presence of practical wisdom [they] will be given all the virtues.” Good physicians are living excellent lives; perfecting themselves is part of their self-identities. These persons will act on the ethics principles that form the core of their identification of themselves with their role. In health care, these principles function as virtues.

Principles of Biomedical Ethics as Virtues

Beauchamp and Childress have popularized what they call the principles of biomedical ethics in a textbook of the same name that has gone through seven editions from 1978 to 2013. The following list provides brief definitions of these principles:

Autonomy is the ability to decide for oneself. The word derives from the Greek words for “self” (auto) and “rule” (nomos). Autonomy means that people are free to make their own decisions. The failure to respect the personhood of others, making decisions for them without their consent, is paternalism.

Beneficence is from the Latin root bene, meaning “to do well.” More specifically, it derives from the Latin word benefacere, meaning “to do a kindness, provide a benefit.” It is the practice of doing the good thing. Health care has clearly valued beneficence from its early Hippocratic origins. It is the second part of the dictum “First do no harm, benefit only.” As an active beneficence, professionalism requires healthcare practitioners to put patients’ interests before their own. When combined with beneficence, healthcare professionals hold dear the virtue of altruism.

Nonmaleficence derives from the Latin word mal, meaning “bad.” A malevolent person wishes ill of someone. Thus, nonmaleficence means to not do wrong toward another.

Justice is a concept with a vast history and multiple interpretations. The etymology is Latin and suggests more than just fairness. The words just and justice include elements of righteousness (“She is a just

person.”), equity (“He received his just due.”), and lawfulness (“She was brought to justice.”). A just person is fair, lawful, reasonable, correct, and honest. Most writers in ethics discuss two kinds of justice, distributive and procedural. Distributive justice determines the proper sharing of property and of burdens and benefits. Procedural justice determines the proper application of the rules in the hearing of a case.

These concepts are foundational principles of healthcare ethics. A person having these virtues as part of his or her character structure, self-definition, and actions is considered a person of good character. In healthcare terms, such a person would be walking the talk of the healing ethic and would be a person of practical wisdom.

Elitism A person who seeks to nurture eudaimonia through his or her actions achieves this goal after long practice of Aristotle’s practical wisdom. In applying practical wisdom, the person has learned to live well, exemplifying what we would call a person of virtue or integrity, a good person. Such a person often sets the standard for the right action in a particular situation. Thus, virtue ethics has the problem of being elitist. Owing to his view of the hierarchical nature of reality, Aristotle thought that some people were simply not capable of maximizing their potential to reach the highest good.

Aristotle noted the difficulty in encouraging many to a character of virtue, a life of nobility and goodness.

Aristotle believed that living in fear, living by emotions, and pursuing pleasures are the motivations for most people. They lack even a conception of the noble and truly pleasant, having never known it. Aristotle seemed to despair that once these bad traits have long been in place, they are impossible to remove. He concluded, “We must be content if, when all the influences by which we are thought to be good are present, we get some tincture of virtue.” The person of practical wisdom becomes the standard for ethical decision-making. This leads to an understanding of how virtue ethics can facilitate the management of ethical conflicts.

Balancing Obligations from the Virtue Ethics Perspective Because different principles of ethics or different virtues conflict, it is not possible to practice in the healthcare professions for long without encountering some kind of ethical dilemma. Some treatments involve harm (we are to do no harm) yet provide a benefit (benefit only). An experienced healthcare professional must be able to explain the relative benefits and risks of such treatments and gain the cooperation of the patient for the treatments.

Sometimes, one principle alone might create conflict. For example, physicians must know how to tell the truth to patients. Even though information can be regarded as therapy, information delivered at the wrong time or in the wrong way can be devastating. Information not delivered at the right time or never delivered at all could mean that the physician is not being honest and is guilty of

paternalism. Learning how to deal with these issues effectively takes experience (practical wisdom) and theoretical knowledge.

A major component of the patient–clinician relationship is the patients’ trust that their caregivers have their best interests at heart and that they are competent. If patients perceive caregivers as persons of integrity, virtue, or practical wisdom, their confidence in their caregivers will increase. That increase in patients’ confidence has documented effects on enhancing the placebo effect. How caregivers communicate, and even how they carry themselves, will do much to influence these perceptions. A caregiver who knows how to do these things is a person of practical wisdom, at least when it comes to medical practice.

Caregivers with practical wisdom, which, by necessity, includes being of good character, or virtuous, will also be able to make appropriate decisions about the means to ends. This has significant implications for healthcare ethics. When faced with ethical challenges in medical care, such caregivers will have the practical wisdom to know how to weigh the various issues and concerns and form a conclusion. Because wise and good people can, and do, come to different conclusions about an ethically appropriate choice of action, persons of practical wisdom should consult with one another.

Healthcare organizations have sought to institutionalize this approach by using ethics committees. Those with

practical wisdom in health care are far ahead of most professionals in having a decades-long tradition of ethics committees, ethics consultations, and institutional review boards. The key here is that persons of good character, pursuing virtuous ends, are much more likely to make an appropriate choice than those without such experience or such character. These choices would appear to refute one of the usual criticisms levied against virtue ethics—that there is no clear way to resolve disputes when those who have practical wisdom disagree about the correct course of action. Mechanisms such as ethics committees lead the deliberators to make a decision, even though it may not be unanimous.

Virtue ethics thus leads to the conclusion that within health care at least, the probability is good that persons socialized to put the patient’s interests first will come up with the ethically correct ranking of options. They will also respect the patient’s wishes, even if they do not agree with those wishes.

Of course, this depiction makes the situation sound much better than it is. Persons well trained in the healing ethic take unethical actions. Is that a fault of the education or the person? Aristotle would fault the person. In Aristotle’s view, some people, by nature, are unable to control their passions, their desires, and their emotions. Others are unable to act rationally. Some are just wicked. Yes, the theory results in a form of elitism. However, it seems fair to say that health care has a major advantage over many other fields in that it has a strong educational and

socialization process for developing the right character. In a sense, the purpose of the educational process is to develop a cadre of elite professionals. In doing so, they should become persons of high character.

Ethics Theories and Professional Roles Knowledge of virtue ethics offers one further advantage. Persons of practical wisdom should be better prepared to know when to use a particular ethics theory, depending on the role in which they find themselves. Again, take physicians as an example. Although physicians have a primary obligation to their patients, it is not their only role. Consider the following physician roles, none of which involves patients directly: conducting scientific studies; negotiating with vendors selling equipment and supplies; and hiring, firing, and supervising employees. In addition, physicians might be negotiating with third-party payers, lobbying on behalf of health policy issues, and conducting peer reviews of other physicians. They might also be involved in the management of healthcare organizations and be part of various advisory and regulatory agency boards. Many other non-patient-related tasks could be listed, such as working with community groups or serving as faculty, as needed.

Some of the ethics theories work better in certain roles than others. How do physicians choose the appropriate theory? The socialization process seeks to develop caregivers who are persons seeking the highest good, at least in health care. This foundational process should develop persons of integrity and practical wisdom who can

manage the inevitable ethical dilemmas and make the best ethical decisions in any role. They can apply reason to the situation and make the best-possible decision within their respective role.

Natural Law The theory of natural law owes a great debt to Aristotle. Natural law also is important to Roman Catholic theology, given its origins with Aquinas. Many texts on ethics and medical ethics leave out natural law or give it short shrift. Some authors consider the theory a version of moderate deontology, defining deontology as simply any view that defines the right thing to do as dependent on something other than consequences. Thus, there is consequentialism and everything else. In the realm of healthcare ethics, such an approach appears overly limiting. As a tool in the ethics theory toolbox, there are a number of good reasons to know natural law theory. Even if philosophically one can reduce this theory to another, natural law is sufficiently definitive and important to consider on its own merits.

One key to understanding natural law is its assumption that nature is rational and orderly. This theory goes back to the ancient Greeks, who believed that the cosmos was essentially unchanging in its order. Aristotle certainly believed this. This is now a statement of physics—a statement about the nature of the world—rather than a statement about ethics.

Natural Law’s Relationship to Aristotle, St.

Thomas Aquinas, and the Catholic Church Aquinas’s beliefs gained prominence in the Catholic Church at the Council of Trent (1545–1563). In 1879, Pope Leo XIII declared Thomism (Aquinas’s theology) to be eternally valid. Nearly all writers recognize Aquinas as setting the standard for natural law theory, just as Aristotle serves as the standard-bearer for virtue ethics. Aquinas developed his theory in his work titled Summa Theologica, meaning “the highest theology.” Aquinas structured the work in the form of a series of questions, which he answered.

The Thomistic conception of natural law proceeds as follows: “All things subject to Divine providence are ruled and measured by the eternal law” (ST IaIIae 91, 2). “The rational creature is subject to Divine providence in the most excellent way . . . . Wherefore it has a share of the Eternal Reason, whereby it has a natural inclination to its proper act and end: and this participation of the eternal law in the rational creature is called the natural law” (ST IaIIae 91, 2). This establishes that natural law is given by God and thus authoritative over all humans. Not only can we know the law, but also as rational and moral creatures, we can violate it.

Recall Aristotle’s concept of practical wisdom; Aquinas used the same concept. In fact, he called Aristotle “the philosopher” and cited him as frequently as Scripture. One can find the importance of practical reason, how it works, its similarity to Aristotle’s conception of it, and the most

concise statement of what the natural law compels in Aquinas’s writings.

The first principle of practical reason is one founded on the notion of good, namely that good is that which all things seek. Hence, the first precept of law is that good is to be done and pursued and evil is to be avoided. All other precepts of the natural law are based upon this: whatever the practical reason naturally apprehends as man’s good (or evil) belongs to the precepts of the natural law as something to be done or avoided (ST IaIIae 94, 2).

Unfortunately, some have stopped at this quote and simply say that natural law means to “do the good and avoid the evil.” Because this lacks clarity about what the good might be or about any decision rule by which to decide what to do when goods conflict or when rankings are required, this statement alone does not constitute an ethics theory. It sells the theory short.

Aquinas also drew on Aristotle’s idea of potentiality moving to actuality and states that in the realm of what is good, “all desire their own perfection” (ST Ia 5, 1). Again, following Aristotle’s lead, Aquinas noted that when it comes to practical reason, the rules might be clear but their application might not be. In short, the details make the principle more difficult to apply (ST IaIIae 94, 4).

Aquinas then offered an excellent example that shows the difficulty at hand. Everyone would agree that in general, “goods entrusted to another should be restored to their

owner” (ST IaIIae 94, 4). However, Aquinas noted that “it may happen in a particular case that it would be injurious, and therefore unreasonable, to restore goods held in trust; for instance, if they are claimed for the purpose of fighting against one’s country. And this principle will be found to fail the more, according as we descend further into detail” (ST IaIIae 94, 4). Taking this practical wisdom approach even further, he generalized that “the greater the number of conditions added, the greater the number of ways in which the principle may fail” (ST IaIIae 94, 4).

Aquinas even went so far as to note that although all are governed by the natural law, all might not know it or act upon it: “In some the reason is perverted by passion, or evil habit, or an evil disposition of nature” (ST IaIIae 94, 4). So what are we to do? In seeking a principle to determine what is good and what is bad, it is not difficult to find specific behaviors listed by Aquinas. However, an excellent philosophical overview of natural law by Michael Murphy concluded that there are no obvious master principles but only examples of flawed acts. The Catholic Encyclopedia suggested a number of things that would be wrong or right under the dictum to always do good and avoid harm. However, there was nothing about how to resolve conflicts among these requirements. This seems to add a quandary. All decisions are specific, and the details will change, so are there any decision rules?

At this point, scholars disagree on exactly how Aquinas resolved the quandary, and we do not need to follow them in those debates. However, there is still a need for a

decision principle when there are disputes regarding which of the various actions to take. There are two such principles, and the one most closely associated with natural law theory is that of the double effect.

Principle of Double Effect The first principle that proposes to distinguish between a good and an evil is the theory of double effect. Derived from Summa Theologica, the principle has four key points:

The act must be good, or at least morally neutral, independent of its consequences.

The agent intends only the good effects, not the bad effect.

The bad effect must not be a means to the good effect. If the good effect were to be the causal result of the bad effect, the agent would intend the bad effect in pursuit of the good effect.

The good effect must outweigh the bad effect. The theory of double effect has use in medical ethics when dealing with abortion, euthanasia, and other decisions where there is a conflict between a good and an evil. For example, under this view, abortion is an evil, but saving the life of a mother is a good. Under this view, euthanasia is an evil, but relieving pain by the use of morphine is a good. If the person dies and the death was not intended, then is it acceptable? Major issues arise in the application of the theory concerning how to determine a person’s intent. We know that not everyone is a person

of practical wisdom who only has a good intent. However, how would we know the intent in a particular case?

At the policy-making level, is it acceptable to cut taxes for the rich at the expense of the poor? What good comes of it? Because there are few rich and many poor, does the good of the rich count more than the good lost by the poor? Note that the further we delve into these types of questions, the more important consequences seem to become, until natural law becomes a form of consequentialism, perhaps rule consequentialism. It is not necessary to resolve these disputes here, because the purpose is to understand the theories for the purposes of making appropriate decisions in health care. Relative to that end, a second decision rule for natural law is available.

Entitlement to Maximize Your Potential The key to understanding this proposed decision rule relates to metaphysics: “Ethics especially is impossible without metaphysics, since it is according to the metaphysical view we take of the world that ethics shapes itself.” The Thomistic ethic draws heavily on the Aristotelian metaphysics that describes the world as a hierarchy of being, with all entities in it striving to reach their own complete state of actualization of their potential. This means that it is part of the natural order for all entities to strive to maximize their potential. To deny something its ability to actualize its potential is to violate its very nature. Such a violation causes harm to the entity and would be a violation of its nature and of the natural law to avoid harm.

Thus, natural law proscribes any activities that would violate an entity’s potential. Concerns about termination of potential, at least for rational creatures, are evident in several contemporary healthcare issues.

Many religions and social activists place considerable emphasis on social and political factors that prevent humans from actualizing their potential. These groups often are at the forefront of social justice movements addressing poverty, ignorance, unhealthy living conditions, and slave-like working conditions. Clearly, healthcare professionals need to understand natural law theory when working with patients who believe in its tenets and with those who advocate social justice. This might include those who are working to improve public health, social conditions, or human rights. Now let us look at another common ethics theory, deontology.

Deontology The derivation of deontology comes from the Greek word deon, which means “duty.” Thus, deontology is concerned with behaving ethically by meeting our duties. The ethics theory of deontology originates with the German philosopher Kant (1724–1804). Although Kant’s influence on deontology is significant, many other thinkers are part of the deontological tradition as well. Nonetheless, just as we relied on Aristotle for virtue ethics and on Aquinas for natural law, Kant sets the standard for deontology. Following the review of Kant, we shall

examine some of the more contemporary advocates of deontological theories.

Kant’s Metaphysics and Epistemology Grounded His Ethics Kant is most well-known for his work in metaphysics and epistemology, the Critique of Pure Reason, but he also did groundbreaking work in ethics. Kant’s writings on ethics appear in several different volumes, with titles such as Groundwork of the Metaphysics of Morals and Critique of Practical Reason among others.

The concept of honoring commitments clearly did not start with Kant, but his approach to the issue led to the identification of his ethics theory with deontology. Kant’s work in metaphysics and epistemology had a significant influence on this approach and his ethical views. As seen with Aristotle and Aquinas, a complete understanding of ethics often includes a view about the nature of the world and how we know it—in other words, the disciplines of metaphysics and epistemology. Kant concluded that the belief that perception represented the world was incorrect, or at least incomplete. Instead, the structure of consciousness processes sense data through the means of categories of thought and two forms of intuition, space and time.

Of these categories of thought, the one that relates most directly to ethics is causality. All experiences are subject to causation, which in Kant’s view undermines free will. In the Newtonian world of his time, it was widely believed

that if you could completely know the behavior of all the matter in existence, you could predict the future behavior of anything material. This did not pose a problem for most people at this time because of the earlier dividing of mind and matter by Rene Descartes (1595–1650). Like most people, Kant found free will to be essential for ethics. If one’s every act is determined, how can one be held responsible for one’s choices?

At the same time, Kant’s reasoning inexorably led him to conclude that we cannot know what the world is like in and of itself. It is beyond knowing, because we cannot experience anything without use of the categories and forms of intuition. Kant, thus, divided the realm of being into the phenomenal world of experience and the noumenal world. We can think about the noumenal world, but we cannot directly experience it. Thus, we have “an unavoidable ignorance of things in themselves and all that we can theoretically know are mere appearances” (B xxix). Relative to ethics, it should be clear from Kant’s perspective that the metaphysical issue of whether free will is possible is foundational.

Kant argued that knowledge of the sensible world was insufficient for knowing the moral law. Yet he also argued that free will makes ethics possible. Free will is the precondition of ethics. If all things are determined by natural causes, then our supposed ethical choices are specious, an illusion. Humans, as a natural phenomenon, are determined by natural laws; causality applies to all

natural phenomena. However, the self, in and of itself (the soul), is free from these laws.

Kant recognized that this puts morality beyond the pale of empirical science, and indeed, the question about free will is beyond such testing. However, Kant believed that he left a “crack in the door” that is wide enough to allow for morality. He did this by arguing that the concept of freedom, although not knowable in a scientific way, is something we can think about without contradiction: “Morality does not, indeed, require that freedom should be understood, but only that it should not contradict itself, and so should at least allow of being thought” (B xxix). In this sense, Kant redefined humans as participating in two kinds of reality, the phenomenal and the noumenal. According to Kant, “There is no contradiction in supposing that one and the same will is, in the appearance, that is, in its visible acts, necessarily subject to the law of nature, and so far not free, while yet, as belonging to a thing in itself, is not subject to that law, and is therefore free” (B xxviii).

Freedom of the Will Like Aristotle and Aquinas, Kant certainly thought good character was laudable. However, he was concerned that the properties that constitute good character, without a good will to correct them, could lead to bad outcomes. For example, we can misuse courage and perseverance without the direction of a good will. Kant went so far as to argue that one should act on the duty of obligation to the moral law regardless of any relationship that might

have an outcome such as eudaimonia: “A good will is good not because of what it performs or effects, not by its aptness for the attainment of some proposed end, but simply by virtue of its volition, that is, it is good in and of itself” (AK 4:394). In other words, a good will is good because it wills properly. Thus, Kant set a high standard. Some of his language even suggests that the true test of a good will is whether the person continues to act out of duty and reverence for the moral law, even when doing so has no personal benefit and might “involve many a disappointment to the ends of inclination” (AK 4:396).

Reason, Autonomy, the Moral Law, and the Will Kant was distinctive relative to his predecessors in seeking to ground our duties in a self-governing will. This is an appeal to reason itself being autonomous, meaning that we are free to choose. If we choose according to reason, we shall conform to the moral law: “If reason completely determined the will, the action would without exception take place according to the rule” (AK 5:20). One can see the extremely prominent principle of autonomy coming into play here.

Typically, an autonomous agent is one who makes his or her own rules and is responsible for his or her actions. To violate that autonomy is to violate a person’s innermost selfhood, something Kant developed as one form of the categorical imperative. Thus, one does not seek the foundation of ethics in the development of a person of good character seeking to actualize his or her intrinsic

nature in order to seek the end of eudaimonia. Instead, the subject matter of ethics is not character but, rather, the nature and content of the principles that determine a rational will. Free will is determined by moral principles that cohere with the categorical imperative. This abstruse approach, for many, simply disconnects the moral law and free will from real life.

The idea of autonomy here is not the view that individuals make their own laws. It means that the laws that bind you in some sense derive from your own making, your own fundamental nature as a self. For Kant, the will is free in the sense that you choose to be bound by these principles of reason. You freely choose to bind yourself to the constraints of the categorical imperative and the dictates of reason.

The requirement of the duty to obey the moral law to express a good will brings the notion of intent into the discussion. Why a person acts in such a way as to conform to the moral law is an important component of ethical evaluation in the Kantian scheme. Let us turn to what Kant saw as rational principles that would ground ethics or the moral law.

Kant attempted to discover the rational principle that would ground all other ethical judgments. He called this principle the categorical imperative. The categorical imperative is not so much a rule as a criterion for determining what ethics principles meet the test of reason. The imperative would have to be categorical rather than hypothetical, or

conditional, because true morality should not depend on individual likes and dislikes or on abilities and opportunities. These are historical “accidents.” Any ultimate principle of ethics must transcend them in order to meet the conditions of fairness. We shall later see how Rawls used similar ideas in developing his concept of a veil of ignorance. Kant developed several formulations of the categorical imperative. The most commonly presented ones follow:

“Always act in such a way that you can also will that the maxim of your action should become a universal law” (AK 4:421). This principle often is caricatured as the Golden Rule: Do unto others as you would have them do unto you. This does not capture the full meaning of what Kant had in mind and may, indeed, miss the essence of his teachings, as he specifically disavowed that this was his intended meaning (AK 4:430).

“Act so that you treat humanity, both in your own person and in that of another, always as an end and never merely as a means” (AK 4:429). Kant spoke of the good society as a place that was a kingdom of ends (AK 4:433–434).

The Categorical Imperative as a Formal Decision Criterion Although Kant believed that these two statements of the categorical imperative were formally equivalent, the first illustrates the need to apply moral principles universally. That a principle be logically consistent was important to Kant. This principle of universal application is also what

allowed ethical egoism to be dismissed as something humans do when making decisions but not as something that is an ethics theory. The second formulation points to making the radical distinction between things and persons and emphasizes the necessity of respect for persons.

Kant’s theory evaluates morality by examining the nature of actions and the will of agents rather than goals achieved. You have done the right thing when you act out of your obligation to the moral law, not simply because you act in accordance with it. Note the fundamental importance of intent as compared with any concern with outcomes. One reason for the emphasis on duties in Kant’s deontology is that we are praised or blamed for actions within our control, and that includes our willing, not our achieving.

Kant did care about the outcomes of our actions, but he thought that as far as the moral evaluation of actions was concerned, consequences did not matter. As Kant pointed out, this total removal of consequences “is strange enough and has no parallel in the remainder of practical knowledge” (AK 5:31). Let us now look at the second version of the categorical imperative, which is foundational in healthcare ethics.

The Categorical Imperative as Respect for Persons The second version of the categorical imperative emphasizes respect for persons. According to Kant, you should “[s]o act as to treat humanity, whither in thine own

person or in that of any other, in every case as an end withal, never as means only” (AK 4:429). People, unlike things, ought never to be merely used. Their value is never a means to our ends; they are ends in themselves. Of course, a person might be useful as a means, but you must always treat that person with respect.

Kant held this view because of his belief that people are rational and that this bestows them with absolute worth: our “rational nature exists as an end in itself” (AK 4:428). This makes people unique in the natural world. In this sense, it is our duty to give every person consideration, respect, and dignity. Individual human rights are acknowledged and inviolable in a deontological system. The major emphasis on autonomy in health care springs from these considerations and others like them. Although most people who defend autonomy and treat people as ends and not merely as means do not use these formalistic Kantian reasons, this principle of autonomy is foundational in healthcare ethics. It is part of health care’s common morality.

The Categorical Imperative and the Golden Rule According to the categorical imperative, if the maxim or the rule governing an action is not capable of being a universal law, then it is unacceptable. Note that universalizability is not the same as universality. Kant’s point is not that we would all agree on some rule. Instead, we must logically be able to accept that it could be universal. This is why the concept seems very much like

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the Golden Rule. If you cannot will that everyone should follow the same rule, your rule is not a moral one. As indicated earlier, many think Kant’s first formulation of the categorical imperative implies or even is a restatement of the Golden Rule. However, Kant specifically repudiates the Golden Rule interpretation (AK 4:430, note 13).

Kant saw the justification for the Golden Rule in terms of consequences and fairness. If it is fair for me to do something, then it should be fair for everyone. Alternatively, in consequential terms, we typically hear officials, merchants, managers, and parents, when they are considering exceptions to policy, say, “If I do X for you, I have to do X for everyone.” If one made exceptions for each individual, then the consequences would be unfair for others.

Kant wanted to get beyond such issues. He wanted to know whether a person performed an act out of duty to moral law and thus expressed a good will. He stipulated that the moral agent acting solely out of a good will should ignore empirical considerations such as consequences, fairness, inclinations, and preferences. For Kant, an act carried out from an inclination, no matter how noble, is not an act of morality (AK 4:398). Indeed, he went so far as to say that the less we benefit from acting on the moral law, the more sublime and dignified it is (AK 4:425).

Acts have moral worth if the person acts solely from duty to the moral law, absent any emotional inclinations or tangible benefits. This sets up the difficult standard that we

can only know whether persons are morally worthy or obeying the moral law when there is nothing in it for them. Their actions would be opposed to their desires, inclinations, and even their self-interests. Taking such an extreme position essentially disconnected Kant from the real world in which people live and make ethical judgments.

Virtue Ethics and Kant’s Moral Law Although likely controversial, it seems, for purposes of healthcare ethics, that the best way to make sense of Kant is to conceive of the person of a good will in a manner akin to Aristotle’s virtue ethics. Thus, to make Kantian deontology useful, you could say that a person of a good will also is a person of practical wisdom, as described by Aristotle. Does this inclusion of Aristotle reject Kant’s work? No, but a critical analysis and comparison to virtue ethics are warranted.

Although Kant’s theory suffers from disconnection from any normal motivational structure in human life, it still has applications in healthcare ethics. The deontological theory emphasizes the attention to duty found in all codes of ethics in health care. Kant put into sharp relief the ethical idea that it is wrong for people to claim they can follow a principle or maxim that suits their interests but would not want others to do the same. Most important for health care is the recognition of human dignity and autonomy. To use people solely as a means to an end, whether as teaching material in medical schools, prisoners

in research experiments, or slaves, is fundamentally a violation of all beings.

Deontology poses two problems that lead many to reject it. First, the statement of categorical imperatives, maxims, duties, rules, or commandments yields only absolutes. Kant really had only one absolute—you must act solely on the basis of a good will. You must have a reverence for, and an obligation to, the moral law formalized by the categorical imperative. However, the lack of prescriptive content leaves many unsatisfied. Actions either pass or fail, with no allowance for a “gray area.” Virtue ethics handles the gray areas by depending on the wisdom of the person of practical wisdom. This is one reason virtue ethics as an ethical tool enables us to handle the problems of healthcare ethics more robustly.

The inability to make distinctions between lesser evils or greater goods is the other problem. We face moral dilemmas when duties come into conflict and there is no mechanism for resolving them. Kant, with his limited description of only one ethical duty (to obey the moral law), could claim to escape this problem within his philosophy. He used the radical view that such decisions are outside the bounds of morality if based on inclinations or consequences. Defining the real world of ethics in this radical way does not help much when faced with decisions that involve your inclinations and the weighing of consequences. Even if you have, as Kant seemed to think, only one duty, it is a formal one, and its various manifestations could conflict.

Virtue ethics and natural law theory face this problem of conflicting duties as well. For example, whereas abortion is clearly wrong under natural law theory, the outcomes of unwanted children, starving children, child abuse, malnutrition, etc., also have a moral bearing. Duties also conflict in healthcare situations. For example, if I tell the truth in some situation, it may lead to someone getting hurt, whereas a lie could have prevented it. However, my duty is both not to lie and not to do things that cause harm to others. Therefore, any decision violates a duty. Pure deontology theory does not allow for a theoretically satisfying means to rank conflicting duties. However, most duty-driven people will not be so literal with the Kantian version of deontology that they are unable to rank conflicting duties. Virtue ethics offers guidance for people using practical wisdom with available tools such as considered judgments, common morality, ethics theories, and ethics principles.

Of the theories presented so far, virtue ethics offers a much more useful and helpful approach in achieving ethical processes and ethical outcomes in the realm of health care. Virtue ethics is more interested in the development of ethical persons than in the development of maxims and imperatives. The normal understanding of the Golden Rule works perfectly well in ethical decision- making within the framework of virtue ethics, even if Kant himself disavowed it.

The policy implications for deontology are significant because of the emphasis on duty and the training of most

healthcare professionals in the duties incumbent upon them. The emphasis on duty leads most clinicians to consider themselves deontologists. However, most would balk at the pure Kantian version of duty and would more readily assent to the duties experienced by a person of practical wisdom. Duty-driven clinical staff can walk into a meeting and know in advance what the right thing to do is: maximize the benefit to their patients. This is their duty, and their professional code of ethics codifies this duty. If they had to rank their duties, it would be patients first, their profession second, other clinical professionals third, with maybe their employing organization a distant fourth.

Having such a clear sense of their duties makes it easy for clinicians to talk about their obligations to patient care. In contrast, healthcare administrators and officials who make policy have a more difficult ethical chore. They must balance competing claims among many groups, and their loyalty is not simply to one group. Administrators represent the organization, whereas clinicians represent individual patients. The ethical obligations of administrators are much more complex; if the organization fails, the clinicians will not be able to help the patients. Let us now look at two deontologists whose theories have a more practical influence on the issues involved in healthcare policy decisions. Their theories are important because of the need to allocate burdens and benefits such as access to health care that is of high quality and that is not delivered in a way that denies us other social goods because of its high costs.

Non-Kantian Versions of Deontology: John Rawls and Robert Nozick This section presents two influential and relatively recent theorists from the deontological tradition. Rawls and Nozick have different ideas of what is right. They argue that by following their principles of what is right, a more just society will result. Of course, as philosophers do, they disagree over not only what is right but also what is just. These two thinkers have influenced the debate on the provision of health care in our nation, including the recent healthcare reforms.

John Rawls (1921–2002) Rawls’s A Theory of Justice, published in 1971, is considered a seminal text. Knowledge of his ideas is part of the common morality of most policy makers, even if many expressly reject those ideas. The basic idea behind Rawls’s theory of justice is “justice as fairness.” Rawls limits his plan to a theory of justice that would apply to a society where the rule of law is respected. People in such a society will differ with regard to their goals and their views of what counts as just. Yet, they recognize agreed- upon methods to arbitrate disputes so that they are capable of continued functioning within society. In other words, a disappointment or a disagreement does not lead to violence or rebellion. Rawls identified himself as being in the tradition of social contract theorists and, as a

deontologist, even a Kantian. Rawls said that his theory is essentially deontological because it is not consequentialist.

The idea of a social contract as the origin of society goes back to Thomas Hobbes (1588–1679), John Locke (1632– 1704), David Hume (1711–1776), and Jean Jacques Rousseau (1712–1778). All of these thinkers conceived of the beginnings of civil society as a compact or contract made among consenting adults to give up certain things in order to achieve others, such as order, harmony, trade, security, and protection. They agreed about the idea of a hypothetical situation that could be altered by persons acting to obtain some rights and privileges in exchange for others without the use of coercion. Rawls used a similar hypothetical situation and called it the original position, in which rational people are behind a veil of ignorance relative to their personal circumstances. The decisions about the principles of a just society that they select when they know nothing about their circumstances are what Rawls described as the principles of a just society.

Rawls emphasized that people seek to protect and maximize their self-interests. He argued that fundamental to that goal is liberty. He further argued—his most controversial point—that to have a just society requires an infrastructure and a system of rights that protect the minority and those who have fared less well in life’s “lottery” than others. The key to his theory is the situation in which bargaining takes place about the nature of society and includes what those who are bargaining know about

their society and themselves. Rawls called this the original position.

The Original Position and the Veil of Ignorance In explaining the original position, Rawls took as rational the ethical egoist’s position that everyone would want to maximize his or her personal self-interest. However, while negotiating the most just society for yourself, you are asked to voluntarily draw a veil of ignorance over yourself. This veil of ignorance is, from a personal perspective, absolute. You know nothing about yourself at all. You do not know your station in life, your preferences, your motivational structure, your willingness to take risk, your age, your health, your socioeconomics, your intelligence, your demographics—nothing. In one fell swoop you have lost all the reasons for protecting your particular advantages or for hedging your bets to protect you from your disadvantages. You know you want to be in the best- possible circumstances when the veil of ignorance is lifted and you leave the original position. Not knowing exactly what to protect, we are then inexorably forced to the kind of considerations that are common in medical ethics when treating patients about whom we lack information of any useful sort.

It is not unusual in healthcare settings to have patients who are in need of treatment but are unable to communicate their wishes. We know nothing of their families, their station in life, etc. Often, we cannot find anyone to speak for them, and they cannot speak for

themselves. We have no clue about what they would have wanted. Normal notions of informed consent, durable power of attorney, and substituted judgment fall away as tools for us. We are forced back onto the position of deciding what to do for such persons on the basis of the idea of what a rational person would want in such circumstances. This position is sometimes called the best interests standard. We could say that persons with such a complete inability to speak for their own interests are in the original position. In this situation, this original position, they are all truly equal because we know nothing of their circumstances.

Now, although we are behind this veil of ignorance relative to our personal circumstances, we nonetheless have a considerable amount of knowledge about other things. Rawls allowed those who are behind the veil of ignorance to know general laws pertaining to political affairs and economic theory and to know something of human psychology. Indeed, he assumed that the parties will “possess all general information” but no information about their own particulars. Thus, they have no way of calculating the probability that they will be in a certain position as a result of their choices. Only by such extreme means did Rawls believe that one can ensure the fairness of the result. It is a hypothetical thought experiment that, he argued, guarantees that whatever principles are chosen will be just.

In his view, everyone should get an equal share of the burdens and benefits, unless there is a material reason to

discriminate. If our job is to come up with a set of principles that will decide what these material reasons are, then we should carry out our job with the least bias. If we go back to the ideal of justice as blind, we see that the blindfold has become a veil of ignorance. Rawls did not at all advocate that we would seek an equalitarian outcome. He assumed that we are persons who want to maximize our self-interests, but he did not assume concepts such as benevolence or even nonmaleficence. Once we determine the principles of a just society, then we can use them to develop material reasons to discriminate in the distribution of burdens and benefits.

Two Basic Principles of Justice The first principle of justice meets with little objection, but the second inspires considerable debate. Rawls ordered these principles serially, in that liberties in the first principle cannot be rationally traded for favorable inequalities described in the second principle. The prioritizing of liberty above other principles of justice was how Rawls distinguished himself from consequentialists. Their perspective, according to Rawls, is that there is only one principle: the greatest good for the greatest number.

Rawls described the first principle of justice as follows: “[E]ach person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” This type of right is similar to the liberties protected in the U.S. Bill of Rights and can be called a process right. He described these rights as follows:

Political liberty (the right to vote and to be eligible for public office)

Freedom from arbitrary arrest and seizure (which goes back to habeas corpus)

Freedom of the person, along with the right to hold (personal) property

Freedom of speech and assembly Liberty of conscience and freedom of thought Rawls took a controversial position relative to the distribution of inequalities of office, income, wealth, and goods. He called this the “difference” principle. In this second principle of justice, social and economic inequalities are appropriate if they are arranged such that the inequalities actually help out the least fortunate persons in society. In addition, the inequalities should be connected to positions, offices, or jobs in society that everyone has an equal opportunity to attain. The inequalities that Rawls saw as permissible are (i) inequalities in the distribution of income and wealth and (ii) inequalities set up by institutions that use differences in authority and responsibility or chains of command. Rawls also said that society cannot justify a decrease in liberty by an increase in social and economic advantages. In this sense, liberty is the most important of the principles.

A classic example of how Rawls’s principles might apply relates to physicians. Physicians often command superior incomes and social status, which are clearly inequalities. This circumstance requires an explanation. Once everybody is out of the original position and back in the

real world, the hope is that anybody can become a doctor if he or she has the talent. Suppose a person decides that he or she wants to become a physician. However, obtaining the education needed to actually become a physician requires an inequality: less fortunate people help pay for this education with their taxes. In the just society envisioned by Rawls, the person desiring the education would have to compensate the less fortunate in some way once he or she became a physician. The physician is free to keep the wealth, or at least some of it. But because gains in wealth are allowed only if they benefit the least advantaged along the way, the physician would never escape an obligation to help the less fortunate.

Some Concerns with Rawls’s Theory According to the difference principle, inequalities may be justified but only if they are to the advantage of the least well off. Rawls considered it “common sense” that all parties be happy with such a principle. Rawls also stated that “the combination of mutual disinterest and the veil of ignorance achieves the same purpose as benevolence.” However, it is not difficult to imagine that many would voice concerns over forced beneficence and the government mechanisms and taxing schemes that would be needed to identify what counts as a natural gift or talent and is therefore unearned.

Consider the relatively bitter discussion of reparations to the descendants of slaves. Recall the still active debates over affirmative action or over how to treat illegal immigrants or their American-citizen children. Many if not

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most of the wealthy would also be unlikely to assent to the thought experiment of putting on a veil of ignorance, because they would not accept the forced benevolence that the difference principle imposes. Simply put, many are less interested in justice than in keeping their advantages for themselves and their children. Thus, Rawls’s position, although just, runs into human nature.

Some might argue that because Rawls was running up against human nature, his theory should be dismissed. Rawls addressed such arguments. He was perfectly aware of the imperfections of the real world outside the veil of ignorance; that is why he invented the thought experiment. The fact that the distribution of burdens and benefits by nature is unequal is not an excuse. “Occasionally this reflection is offered as an excuse for ignoring injustice, as if the refusal to acquiesce in injustice is on a par with being unable to accept death.” Rawls believed that “the natural distribution is neither just nor unjust.” As Rawls stated, “[T]hese are simply natural facts. What is just and unjust is the way that institutions deal with these facts.” Thus, it is up to us to decide the principles of a just society and to take steps to create that society.

Rawls conceded that one might affirm his or her contract approach but eschew the difference principle, or vice versa. To understand Rawls’s theory and its application, we need to examine his most famous opponent, Nozick, the philosophical defender of libertarianism. Nozick accepted neither the contract

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approach of the original position nor the difference principle.

Robert Nozick (1938–2002) and Libertarianism Nozick and Rawls both worked in the Department of Philosophy at Harvard University at the same time, but their philosophies disagreed considerably. However, both described themselves as coming from the deontological tradition relative to ethics theory in that they rejected consequentialism. Nozick’s first, and most famous book, Anarchy, State, and Utopia (1974), was an attack on Rawls’s work that focused on the extensive state envisioned as necessary to bring about Rawls’s ends.

In the healthcare field, Nozick’s work in political theory helps provide the theoretical underpinnings to the debate that argued that there are no positive rights to health care, nor should there be any. On the other side, Rawls’s difference principle can be used to argue for health care as a component of the primary social goods. Thus, Rawls and his followers represent the liberal tradition that the government should step in to help people disadvantaged in life’s lottery, while Nozick and his followers represent the conservative tradition that if you want something you should obtain it yourself.

Like Rawls, Nozick claimed roots in Kant. However, Nozick focused on the second formulation of the categorical imperative. You may recall that Kant said, “So act as to treat humanity, whither in thine own person or in

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that of any other, in every case as an end withal, never as means only” (AK 4:429). Nozick drew on this formulation, earlier described as the emphasis on autonomy. In the first sentence of the book, he stated his approach clearly: “Individuals have rights, and there are things no person or group may do to them (without violating their rights).” He said that this imperative puts a constraint upon how others may be used. He stated that this version of autonomy can “express the inviolability of others.”

Nozick argued that Kant, in his categorical imperative, did not simply say we should minimize the use of humanity as a means. Rather, he said we should treat others as ends in every case, never as means only. The word “only” leaves the meaning of this statement open to alternate interpretations that would suggest that minimization is all anyone could really mean in the actual world. In Nozick’s view, people obviously are means to ends. If people are means to ends, then how is it possible to treat them only as ends?

Nozick also said that if we take his view of Kant and the inviolability of persons seriously, then we misspeak when we say that someone must make a sacrifice for the social good. He argued that there is no social entity to whom we can make a sacrifice; there are only other persons. Social entities are simply abstractions. “Using one of these people for the benefit of others uses him and benefits others. Nothing more . . . Talk of an overall social good covers this up.” To use a person in this way is to fail to

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respect him or her as a separate person: “No one is entitled to force this [sacrifice] upon him—least of all a state or government.”

Nozick also objected to Rawls’s difference principle. He opposed the forced redistribution of benefits and burdens so that the less fortunate are made better off as the price for the more fortunate being more fortunate: Holdings to which people are entitled may not be seized, even to provide equality of opportunity for others. In the absence of magic wands, the remaining means toward equality of opportunity is to convince each person to choose to devote some of his or her holdings to achieving it.

Simply put, if you do not like what you have, take steps to get more. If you want people to help others, convince them to do it. Is this justice? Are we really being just if we tell people who are severely disadvantaged to choose to improve themselves?

Rawls would hold that such outcomes are arbitrary—not just—in that they are based on the natural lottery, over which we have no control. The veil of ignorance is intended to get us to think about the principles of justice that would follow if we did not know our personal circumstances. For Rawls, what is just is what persons in that original position would choose. The principles that result are the distributive justice principles of a just society. Nozick claimed that theories like Rawls’s could be defeated by voluntary agreements. Indeed, he opposed the use of the term “distributive justice” because it implied

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a central distribution authority. This is not the reality of free adults, so he preferred the term “holdings” and talked of how they are acquired and transferred. Nonetheless, he was unable to escape completely from the long tradition of the term “distributive justice” and continued to use it. He specified three conditions that meet the requirements of distributive justice:

“A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding.”

If a person is entitled to the holding and transfers the holding, the person to whom it is transferred is now entitled to it.

No one is entitled to anything except by gaining a holding from a previously unheld state (principle 1) or obtaining it from such a person by voluntary transfer.

An interesting outcome of Nozick’s reliance on these three principles is that it is unnecessary to argue that anyone deserves the outcome that results. Nozick, thus, rejected the basic idea of distributive justice; the principle is that everyone should get an equal share unless there is a material reason to discriminate. He complained that any reason to discriminate results in an inappropriate end state or patterned outcome. What was appropriate was the three principles that he enunciated relative to historical entitlement and then subsequent transfers of holdings.

Most puzzling, at the end of his chapter on distributive justice, Nozick did take up what should be done to rectify

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the problems of historical injustice. Justice prevails only in following the three principles that described proper acquisition and transfer. If these are followed, there is no injustice in the resultant outcomes, whatever they are. “If, however, these principles are violated, the principle of rectification comes into play.” He then allowed that a specified (he used the term “patterned”) outcome might be appropriate to rectify the past injustice. Nozick provided the following view of how this could be done: “A rough rule of thumb for rectifying injustices might seem to be the following: organize society so as to maximize the position of whatever groups end up least well-off in the society.”

This remarkable statement by the champion of libertarians sounded very like the difference principle. However, it left out Rawls’s idea that the better off can be better off but only if the less well off benefit as well. In Nozick’s formulation, it seems we have moved back to equalitarianism because our only interest, when tasked to correct injustice, is maximizing the position of the least well off. The only possible outcome of this logic must be a leveling or rising of everyone to the average.

Because what happened historically is what counts as justice, it would be hard to find a significant case in which the original holdings were justly gained. For example, when Thomas Jefferson made the Louisiana Purchase, it was certainly a great surprise to the Native Americans, who had been living there for thousands of years, that they had no ownership rights in their land. This loss of

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ownership rights ended up being true for them no matter how much labor they had mixed in with the land.

As a libertarian, Nozick’s principles resonate loudly with those who emphasize the free market and a meritocracy. Typically, these will be the same people who resist calls for allocation of resources to healthcare needs, especially if this is done by taxation.

The extent to which these libertarian views are part of the common morality has a great influence on healthcare policy.

At this point we have examined all but one of the major ethics theories. Let us now examine the ethics theory that describes how most administrators work: consequentialism.

Consequentialism Consequentialist moral theories evaluate the morality of actions in terms of progress toward a goal or end. The consequences of the action are what matter, not their intent. This is in contrast to previously noted theories (e.g., deontology, virtue ethics, and natural law) that consider intent. Consequentialism is sometimes called teleology, using the Greek term telos, which refers to “ends.” Thus, one finds that the goal of consequentialism is often stated as the greatest good for the greatest number. Consequentialism has several versions, the best known of which is utilitarianism. Utilitarianism defines morality in

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terms of the maximization of the net utility expected for all parties affected by a decision or action. For the purposes of discussion, consequentialism and utilitarianism are used here as synonyms.

For the consequentialist, the person’s intentions are irrelevant to the ethical evaluation of whether the deed is right or wrong. Outcomes are all that matter. The consequentialist will agree that intentions do matter, but only to the evaluation of a person’s character, not to the evaluation of the morality of his or her acts. In natural law, virtue ethics, and deontology, part of the ethical assessment concerns the person’s intention. The consequentialist would say that intention simply confuses two issues: (i) whether the act itself is leading to good or bad outcomes and (ii) whether the person carrying out the act should be praised for it or not praised. Consequentialists consider the second issue to be independent of moral consideration relative to the act. It is relevant only to the evaluation of the person’s moral character. Of course, to leave out intentions completely seems to violate a deep sense of our understanding about what it means to be ethical. Most people find something wrong with saying an act is ethical if it happened by accident.

Types of Consequentialism The two major types of consequentialism are as follows:

Classical utilitarianism (or act consequentialism). Each

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Classical utilitarianism (or act consequentialism). Each act is considered on the basis of its net benefit. This version of utilitarianism has received the most criticism and is not supported by modern ethicists. Nonetheless, it makes a convenient target for those who dislike consequentialism. For example, determining the consequences of something is often an exceedingly data-intensive undertaking, and the data may be lacking. The facts regarding the consequences are also themselves in debate. Imagine the difficulty if an administrator had to make decisions on the basis of the consequences of each employee’s actions rather than a standard or rule.

Rule consequentialism. The decision maker develops rules that will have the greatest net benefit. The development of rules to guide conduct is similar to the actions of administrators who develop policies. This rule version of consequentialism includes two subspecies, negative consequentialism and preference consequentialism.

In organizational healthcare settings, policy- making is an important component of providing patient-centered care and meeting organizational needs. Consequentialism is often used as a basis for decision-making. For example, one could readily see that the creation of a diversity policy is justified by rule consequentialism. Lawmakers and administrators who develop health policies at the national level also use consequential arguments to justify decisions, such as requirements to provide indigent care or emergency services. To better understand the use of

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consequentialism, we first must examine classical utilitarianism and consider rule utilitarianism.

Classical Utilitarianism Classical utilitarians spoke of maximization of pleasure or happiness. Classical utilitarianism is most often associated with the British philosopher Mill (1806–1873). He developed the theory from a pleasure-maximizing version put forward by his mentor Bentham (1748–1832). As clearly stated by Mill, the basic principle of utilitarianism is that actions are right to the degree that they tend to promote the greatest good for the greatest number.

Of course, it is unclear what constitutes “the greatest good.” For Bentham, it was simply the tendency to augment or diminish happiness or pleasure. Bentham, being a hedonist in theory, did not try to make distinctions about whether one form of pleasure or happiness was better than another.

For Mill, not all pleasures were equally worthy. He defined “the good” in terms of well-being and distinguished, both quantitatively and qualitatively, between various forms of pleasure. Mill is closer to the virtue theory idea of eudaimonia as a goal in that he specified qualitative distinctions rather than simply adding up units of happiness or pleasure. Indeed, Mill said that one is duty-bound to perform some acts, even if they do not maximize utility.

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A defining characteristic of any type of consequentialism is that the evaluation of whether an outcome is good or bad should be, in some sense, measurable, or that the outcome should be within the realm of predictability. Thus, in the realm of consequentialism, ethics theory attempts to become objective, seeking a foundation that is akin to the sciences. This principle is enshrined in the world of commerce, trade, management, and administration as the cost–benefit analysis approach.

As a theory, consequentialism is not as closely tied to its founder as are the previous three theories discussed. Thus, rather than probing the depths of Mill’s writing, a more free-ranging approach is used, and the section presents various versions of consequentialism that are in play today. This approach will avoid the considerable controversies surrounding what Mill meant by his theories. It presents tools derived from consequentialism tools that are useful to persons dealing with issues in healthcare ethics.

Relative to what consequentialism means, Bentham insisted that “the greatest number” included all who were affected by the action in question, with “each to count as one, and no one as more than one.” Likewise, in Bentham’s version of the theory, the various intrinsic goods that counted as utility would have an equal value, such that one unit of happiness for you is not worth more than one unit of happiness for me. Quite clearly, to talk about “units of happiness” is far-fetched, and indeed, that is one of the criticisms of the theory. However,

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numerous correctives to the theory have been advanced over the years, and some of these are helpful.

Unlike deontology and natural law with their conflicting absolutes, consequentialism of any form allows for degrees of right and wrong. If the consequences can be predicted and their utility calculated, then in such situations, the choice between actions is clear-cut: always choose those actions that have the greatest utility. For this reason, the theory has had great appeal in economic and business circles. However, in healthcare decision-making, the economic view of utility is not fully satisfactory. For example, how do you compute the suffering of someone whose spouse has become disabled? Although attorneys do calculate the monetary value of life years lost when there is an injury, whether monetary settlements can really compensate for a lost livelihood or a broken future is debatable.

In spite of this objection, administrators of healthcare organizations, including managers, must often think in terms of the aggregate when evaluating their decisions. Persons taking the tack of a deontologist and trying to fulfill their duty can readily say that their obligation is to the patient. Administrators have to consider patients in the aggregate, the organization, the larger community, and their employees in their decision-making. Their divided duties and obligations are part of their job descriptions, as opposed to the single obligation to the patient that clinicians enjoy. Administrators also are trained to consider their decisions in terms of maximization—the

best outcome for the resources expended is the greatest good. They would say that utilitarianism assists them in obtaining the “biggest bang for the buck.” Of course, in administration, as in ethics, problems arise:

It is not always clear what the outcome of an action will be, nor is it always possible to determine those affected by it.

The calculation required to determine the right decision is both complicated and time-consuming.

Because the greatest good for the greatest number is described in aggregate terms, the good might be achieved under conditions that are harmful to some so long as that harm is balanced by a greater good. This leads to the attack that consequentialism means “the end justifies the means.”

The theory fails to acknowledge that individual rights could be violated for the sake of the greatest good, which is sometimes called the “tyranny of the majority.” Indeed, the murder of an innocent person would seem to be condoned if it served the greater number. The complaint is that consequentialism ignores the existence of basic rights and ethics principles such as autonomy and beneficence. The fact that Mill would categorically deny this by saying some acts are wrong regardless of the consequences appears to be a violation of his own stated philosophy. Of course, we are not seeking doctrinal purity but useful tools to help us in healthcare ethics.

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Finally, who has the time to run endless computations every time a decision is needed? “Analysis paralysis” would be the predicted outcome, which would not maximize any version of utility. In any case, because of these problems, few philosophers today subscribe to act consequentialism. The proposed improvement to several of these problems is rule consequentialism.

Rule Consequentialism The idea behind rule consequentialism is that one evaluates behavior by rules that would lead to the greatest good for the greatest number. At this point, the theory begins to tie in more clearly to virtue ethics and to the person who has achieved practical wisdom. It takes a person of some experience to know how to develop rules that will likely lead to the greatest good for the greatest number. Healthcare administrators and government officials would call these rules policies.

Once there is a policy, presumably developed by an evaluation of its likely outcomes, then the person who needs to make a decision refers to the applicable policy. Indeed, a person of practical wisdom might well conclude that long-term utility is undermined by acts of injustice. He or she would then develop a policy that recognizes and respects autonomy. Rule utilitarianism would thus use the utility principle to justify rules establishing human rights and the universal prohibition of certain harms. Such rules would codify the wisdom of experience and preclude the need for constant calculation.

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Thus, rule consequentialism looks like the same activity in which healthcare administrators and policy makers engage when they make policies and procedures. A policy is a general statement meant to cover any number of situations. The person creating it makes the decision that following the policy is the best way to achieve the organization’s goals. The person then uses procedures as the means to carry out the created policies. Healthcare administrators and government officials have been using this process for a long time. Overall, it works well, even though rules or policies do not work fairly in every situation.

Indeed, the failure of the rules to fit every situation is one of the reasons to have humans in charge instead of machines. At this point, the inclusion of a person of practical wisdom, from the virtue ethics tradition, comes into play. Administrators or clinicians (persons of practical wisdom) can decide whether the special circumstances warrant making an exception to the rule when they need to make judgments. If so, they could modify the rule to consider the special circumstances. In this way, fairness is preserved.

These exceptions might be justified by material reasons such as need, merit, potential, and past achievement. The manager or policy maker will also have to recognize, and be willing to accept, that sometimes the enforcement of a rule will lead to unfair outcomes. However, the principle is still sound and much better than the chaos of trying to

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evaluate the probable consequences of a situation each time a decision is required.

Rule consequentialism can also incorporate the goals of negative consequentialism. The idea behind negative consequentialism is that the alleviation of suffering is more important than the maximization of pleasure. Further, to have the alleviation of suffering as a goal incorporates into the goal the protection of the powerless, the weak, and the worse off. Thus, from a social policy point of view, rules that operate as safety nets can accomplish this goal. Allowing access to emergency treatment regardless of the ability to pay is an obvious healthcare example. Now let us look at the last version of consequentialism, preference consequentialism.

Preference Consequentialism Preference consequentialism argues that the good is the fulfillment of preferences and the bad is frustration of desires or preferences. People, in this sense, are not seen as having preferences for pleasure or happiness per se; their preferences are left to them. Thus, autonomy becomes a bedrock value.

How can someone know another person’s preferences when making decisions that involve that person? To answer this question, health care has developed clearly enunciated procedures in the area of informed consent. One can speak of substituted judgment when one knows the preferences of a person who is now incompetent. In case the person has not communicated his or her

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preferences, we are forced to fall back on what is called the “best interests standard,” or, more commonly, the “reasonable person standard.” What would a reasonable person want in the circumstances at hand?

Healthcare ethicists have done well in discerning what the preferences are of an individual who has become incompetent. However, policy-making decisions have an impact on large groups of people, most of whom will be personally unknown to the decision makers. Development of tools to ascertain the preferences of a large aggregate of individuals is a much different task. The direction that seems to occur is that the decision maker applies the “reasonable person standard” to the aggregate. However, considerable evidence suggests that such a standard may fall short of meeting a specific person’s actual preferences, whether it is what a reasonable person would want or wouldn’t want. Simply put, the preferences that humans have are so diverse and changeable that it might not make sense to use them as a standard for maximization. Thus, although this preference standard may work at the individual level, it seems to have less value as a policy statement to use in the aggregate. When one institutionalizes the reasonable person standard as a rule, its implementation might run roughshod over individual preferences that are “unreasonable.”

Evaluation of Consequentialism One of the most common criticisms of consequentialism is that it appears to allow some to suffer if the net outcome is an improvement for a greater number. This argument is

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specious. The theory presumes respect for autonomy by the very statement that the good sought is the greatest good for the greatest number. Although consequentialists might talk about utility, the good in mind has to include respect for the personhood of others as a minimum requirement. If respect for the other is not presupposed, then it seems the theory would really devolve into a form of egoism. Thus, respect for the wants, preferences, hopes, and choices of others must be implicit for the theory to remain intact. A lack of this foundational component would mean that the theory really does boil down to the ends justifying the means, as noted earlier. However, such a view is off base relative to the intent of the theory.

Mill stated this quite clearly in his classic essay “On Liberty”: “The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.” It is difficult to think of a more obvious reference to respect for the autonomy of others and their liberty to pursue it. Some argue that this meant that Mill was really a deontologist. However, such arguments seem arcane, academic, and irrelevant to our purposes. Thus, I consider it a compliment to Mill that he recognized the need to temper his “greatest good for the greatest number” with respect for basic principles of autonomy and freedom.

The post HEALTH CARE ETHICS appeared first on Infinite Essays.

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HEALTH CARE ETHICS

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