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(7) Ethics in medicine

Euthanasia - an Ethical Dilemma

MEDICAL ETHICS & EUTHANASIA

Eistein

Einstein used thought experiments as a tool for the scientific understanding of the universe. Thought experiments are a vital tool in ethics as well.

A tool-box for reasoning

Let me add a certain virile reply recorded by De Quincey (Writings XI,n 226). Someone flung a glass of wine in the face of a gentleman during a theological or literary debate. The victim did not show any emotion and said to the offender: ‘This, sir, is a digression: now, if you please, for the argument.’ (The author of that reply, a certain Dr Henderson, died in Oxford around 1787, without leaving us any memory other than those just words: a sufficient and beautiful immortality.)  (J. L. Borges, The Art of Verbal Abuse, 1933)

Medical ethics is, in my view, a questioning and a critically reflective discipline. Doctors, nurses, and other health professionals will normally have good reasons for doing what they do. It would be foolish not to give careful consideration to what experienced practitioners do and think is right. But the role of philosophy is to demand reasons and to subject these reasons to careful critical analysis. Socrates saw himself as an intellectual gad-fly irritating the status quo with awkward questions. Medical practice should be continually improving through subjecting itself to the scrutiny of those twin disciplines, science and philosophy.

Science asks: What is the evidence that this is the best treatment? How good is that evidence? What evidence is there for alternative treatments?

Philosophy demands reasons for the moral choices made: Is it right to help this single woman to conceive a child using methods of assisted reproduction? Should all attempts be made to prolong the life of this patient using the facilities of intensive care, or should she be allowed to die but in as little distress as possible?

Everyone expects philosophical reasoning to be rigorous, to be logically valid. But what makes philosophy in general, and ethics in particular, so exciting is that providing reasons, and giving arguments, requires not only intellectual rigour but also imagination. Ethics uses many tools of reasoning, but it is not just a question of learning how to use the tools: there is always the possibility of a leap of the imagination – of a different perspective or an interesting comparison that puts the whole question in a new light and takes our thinking forward.

The first tool: logic

A valid argument must be logically sound. An argument is a set of reasons supporting a conclusion. A deductive, or logical, argument is a series of statements (called premises) which lead logically to a conclusion. A valid argument is one in which the conclusion follows as a matter of logical necessity from the premises. The conclusion from a valid argument may or may not be true. We put forward a logically valid argument in the form of a syllogism but we claimed that the conclusion was false on the grounds that one of the premises was false.

A syllogism is an argument that can be expressed in the form of two propositions, called premises, and a conclusion that results, as a matter of logic, from the premises. There are two main types of valid syllogism.

Valid syllogism – type 1

Premise 1 (P1) - If p then q (If statement p is true then statement q is true)

Premise 2 (P2) - p (i.e. statement p is true)

Conclusion (C) - q (therefore statement q is true)

The technical name for this type of syllogism is modus ponens. An example is as follows:

P1 - If a foetus is a person it is wrong to kill it

P2 - A foetus is a person

C - It is wrong to kill a foetus

Valid syllogism – type 2

Premise 1 - If p then q (If statement p is true then statement q is true)

Premise 2 - Not q (it is not the case that q is true; q is false)

Conclusion - Not p (therefore statement p is false)

The technical name for this type of syllogism is modus tollens. An example is as follows:

P1 - If a foetus is a person it is wrong to kill it

P2- It is not wrong to kill a foetus

C - A foetus is not a person

There is one type of invalid, or logically false, argument that people often make. It is worth being on the look-out for this.

An invalid argument in the form of a syllogism

Premise 1 - If p then q (If statement p is true then statement q is true)

Premise 2 - Not p (i.e. statement p is false)

False Conclusion - Not q (therefore statement q is false)

An example is as follows:

P1 - If a foetus is a person it is wrong to kill it

P2 - A foetus is not a person

C - It is not wrong to kill a foetus

There may be reasons why it is wrong to kill a foetus other than its being a person.

When you are examining an argument in medical ethics it can be useful to try and boil the argument down to its basic form, as I did in Chapter 2 when discussing what I called ‘playing the Nazi card’.

This enables the premises to be clearly identified – and examined - and will help expose any fallacy in the argument itself. Medical ethics, and applied philosophy more generally, is concerned with constructing arguments about what we should do, based on premises that we should all accept.

The second tool: conceptual analysis

An important component of valid reasoning is conceptual analysis. There are four types of conceptual analysis: providing a definition; elucidating a concept; making distinctions (splitting); and identifying similarities between two different concepts (lumping).

Not that these components can always be kept separate. This process of defining is part and parcel of making distinctions; they are not separate activities. The clarification of concepts is a crucial and demanding task in medical ethics. We often use concepts that are unproblematic in most situations but become quite opaque when applied in a new context.

An important concept in medicine is that of the best interests of a patient. In both English and US law a doctor is usually obliged to treat a patient in his best interests. If the patient is a young man with appendicitis it is pretty clear that his best interests are served by removing the appendix. It is much less clear what management plan is in the best interests of a man with severe Alzheimer’s disease who also has cancer of the bowel. Part of the issue is what factors make up ‘best interests’ in this situation, and who is to make the judgments. The issue is even more problematic when we are talking about the best interests, or the welfare, of a child who may exist in the future.

The third tool: consistency and case comparison

The underlying principle of consistency is that if you conclude that you should make different decisions, or do different things, in two similar situations then you must be able to point to a morally relevant difference between the two situations that accounts for the different decisions. Otherwise you are being inconsistent.

Before we made a comparison between what Dr Cox did (inject potassium chloride) and what many doctors quite legitimately do (inject morphine) in situations similar to that faced by Dr Cox. So why, we asked, should Dr Cox, but not those doctors who inject morphine, face the serious criminal charge of (attempted) murder? Is this inconsistent practice, or is there a morally relevant difference? The obvious difference is that Dr Cox intended that his patient die, whereas those who inject morphine do not intend death although they might foresee it. Whether this distinction between intending and foreseeing is morally relevant is an issue requiring further analysis.

Thought experiments

The cases used for case comparison, or for examining consistency, may be real or hypothetical, or even unrealistic. Philosophers frequently use imaginary cases in testing arguments and in examining concepts. These are called ‘thought experiments’ – like many scientific experiments they are designed to test a theory. We have already used several thought experiments. One of the uses of the imagination is in thinking of thought experiments that take the argument forward, or that challenge our routine ways of thinking.

The fourth tool: reasoning from principles

Several books and many articles organize the analysis of medical ethics around four principles and their scope of application. These principles might best be seen as perspectives rather than as the premises of a logical argument. They can act as a useful check that a full range of perspectives has been taken into account. When considering whether or not a doctor should breach a patient’s confidentiality, for example, it may be helpful to identify the key issues by examining the situation from the perspective of each principle. This is, however, only the beginning. Further conceptual analysis (e.g. what do we mean by best interests in this situation) and judgment will be needed.

Another form of ‘top–down’ reasoning is to argue, not from one of the four principles, but from a general moral theory such as utilitarianism. In essence such top–down reasoning involves identifying a moral theory that you think is generally right and then exploring the implications that that theory would have in the specific situation you are considering.

Reasoning about morality involves, in my view, a continual moving between our moral responses to specific situations (or cases) and our moral theories. Rawls called this process reflective equilibrium.

During the process both the theories and the beliefs about individual situations can undergo revision. When there is lack of agreement between theory and our intuitions about individual cases, there is no algorithm, or computer program, that can tell us which or what we must change. That has to be a matter of judgement.

Four principles in medical ethics

  1. Respect for patient autonomy

Autonomy (literally self-rule) is the capacity to think, decide, and act on the basis of such thought and decision, freely and independently (Gillon 1986). Respect for patient autonomy requires health professionals (and others, including the patient’s family) to help patients to come to their own decisions (e.g. by providing important information) and to respect and follow those decisions (even when the health professional believes that the patient’s decision is wrong).

  1. Beneficence: the promotion of what is best for the patient

This principle emphasizes the moral importance of doing good to others and, in particular in the medical context, doing good to patients. Following this principle would entail doing what was best for the patient. This raises the question of who should be the judge of what is best for the patient. This principle is often interpreted as focusing on what an objective assessment by a relevant health professional would determine as in the patient’s best interests. The patient’s own views are captured by the principle of respect for patient autonomy.

The two principles conflict when a competent patient chooses a course of action which is not in his or her best interests.

  1. Non-maleficence: avoiding harm

This principle is the other side of the coin of the principle of beneficence. It states that we should not harm patients. In most situations this principle does not add anything useful to the principle of beneficence. The main reason for retaining the principle of non-maleficence is that it is generally thought that we have a prima-facie duty not to harm anyone, whereas we owe a duty of beneficence to a limited number of people only.

  1. Justice

There are four components to this principle: distributive justice; respect for the law; rights; and retributive justice. With regard to distributive justice: first, patients in similar situations should normally have access to the same health care; and second, in determining what level of health care should be available for one set of patients we must take into account the effect of such a use of resources on other patients. In other words, we must try to distribute our limited resources (time, money, intensive care beds) fairly.

The second component of justice is whether the fact that some act is, or is not, against the law is of moral relevance. Whilst many people take the view that it may, in some situations, be morally right to break the law, nevertheless if laws are made through a reasonable democratic process they have moral force.

The types and status of rights are much disputed. The fundamental idea is that if a person has a right it gives her a special advantage – a safeguard so that her right is respected even if the overall social good is thereby diminished.

‘Retributive’ justice concerns the fitting of the punishment to the crime. In the medical context this issue is sometimes raised when a person with mental disorder commits a crime.

Spotting fallacies in reasoning

Logicians like to spot, and name, fallacious arguments, rather as ornithologists spot birds. We came across the argumentum ad hominem.  Spotting fallacies is a useful exercise in medical ethics because it helps us to see through a rhetorically powerful but ultimately false argument. Here are two of my favorite fallacies named and defined by Flew (1989).

The No-True Scotsman Move

Someone says: ‘No Scotsman would beat his wife to a shapeless pulp with a blunt instrument’. He is confronted with a falsifying instance: ‘Mr Angus McSporran did just that’. Instead of withdrawing, or at least qualifying, the too rash original claim our patriot insists: ‘Well, no true Scotsman would do such a thing!’

What seems to be a statement of fact (an empirical claim) is made impervious to counter-examples by adapting the meaning of the words so that the statement becomes true by definition and empty of any empirical content.

The Ten-Leaky-Buckets Tactic

This is presenting a series of severally unsound arguments as if their mere conjunction might render them collectively valid: something that needs to be distinguished carefully from the accumulation of evidence, where every item possesses some weight in its own right.

Nature and Playing God

There are two arguments: the argument from Nature and the argument from Playing God.

The argument from Nature

Stated baldly the argument from Nature boils down to the assertion: this is not natural, therefore this is morally wrong. The argument has been used against homosexuality, and it is often brought out in the context of medical ethics, not only when considering euthanasia but also when discussing possibilities arising from modern reproductive technology and genetics. The argument is problematic in at least three ways. First, it is not entirely clear what it means to say that something is unnatural. If about 10 per cent of humans are predominantly homosexual, and homosexual behavior is seen in other species, what is meant by saying that homosexuality is unnatural? Second, it seems quite unclear why it follows from the fact that something is unnatural, that it is morally wrong. What kind of reason could be given in support of this? Third, there are an enormous number of counter-examples, not least from medical practice itself, to the claim that what is unnatural is morally wrong. The life of a child with meningitis may be saved by antibiotics and intensive care. Neither treatment is ‘natural’ by any meaning that can be given to that term. Perhaps it is wrong to help couples to have babies using in-vitro fertilization (IVF) but, if it is wrong, that cannot be on the grounds that IVF is unnatural.

The argument from Playing God

The argument from Playing God can also be stated baldly as: this act is morally wrong because it is playing God. The argument is problematic in ways analogous to the problem with the argument from Nature. What criteria can be used to distinguish between our carrying out God’s will, and our usurping his role? Which of the following is playing God: providing IVF; withdrawing life support; injecting antibiotics; transplanting a kidney? It seems to me that we have first to decide which acts are right or wrong before we can determine those that might be described as playing God. The concept of Playing God is therefore of no help in determining what it is right to do.

The slippery slope argument

I want finally, in this chapter on methods of reasoning, to turn to the slippery slope argument. This is often used in medical ethics. The core of the argument is that once you accept one particular position then it will be extremely difficult, or indeed impossible, not to accept more and more extreme positions. If you do not want to accept the more extreme positions you must not accept the original, less extreme position.

Suppose, for example, that a supporter of voluntary active euthanasia gave an example of a situation when it seemed plausible to agree that euthanasia, in that situation, is acceptable. The case of mercy killing carried out by Dr Cox might be such an example. The slippery slope argument could be used against killing the patient, not on the grounds that it would be wrong as a matter of principle in this case, but on the grounds that allowing killing in this case would inevitably lead to allowing killing in situations where it would be wrong.

The main counter to the slippery slope argument is to claim that a barrier can be placed part way down the slope so that in stepping onto the top of the slope we will not inevitably slide to the bottom – but only as far as the barrier.

There are two types of slippery slope argument: a logical type and an empirical type.

The logical type of slippery slope argument and the sorties paradox

The logical type of slippery slope argument can be seen as consisting in three steps:

Step 1: As a matter of logic, if you accept the (apparently reasonable) proposition, p, then you must also accept the closely related proposition, q. Similarly, if you accept q you must accept proposition r, and so on through propositions s, t, etc. The propositions p, q, r, s, t, etc. form a series of related propositions such that adjacent propositions are more similar to each other than those further apart in the series.

Step 2: This involves showing, or gaining agreement from the other side in the argument, that at some stage in this series the propositions become clearly unacceptable, or false.

Step 3: This involves applying formal logic (modus tollens) to conclude that since one of the later propositions (e.g. proposition t) is false, it follows that the first proposition (p) is false.

In summary, step 1 is to establish the premise: if p then t. Step 2 is to establish the premise: t is false. Step 3 is to point out that from these premises it follows, logically, that p is false. It is the first step in the argument that is special about slippery slopes. The crucial component in the argument is to establish a series of propositions such that adjacent members of the series are so close that there can be no reasonable grounds for holding one proposition true (or false) and its adjacent proposition(s) false (or true).

This logical form of slippery slope argument is related closely to a class of paradoxes known as the ‘sorites paradoxes’ first identified by the ancient Greeks (purportedly by Eubulides).

The name ‘sorites’ comes from the Greek ‘soros’, meaning a heap. An early example of this type of paradox involved arguing that one grain of sand does not make a heap, and adding one grain of sand to something that is not a heap will not make a heap, so you can never have a heap of sand.

These types of paradox arise because many (perhaps most) of the concepts we use have a certain vagueness: if a concept applies to one object then the concept will still apply if there is a very small change in that object. But a casual observation of children playing on the beach will show that heaps of sand do exist and that the logical form of slippery slope argument is unsound. Proposition t may be false while proposition p is true. There are three possible responses to a slippery slope argument.

1. To argue that each small change makes a small, if imperceptible, moral difference (like each grain of sand).

2. To draw the line, or place a barrier, at some stage along the slope. The precise drawing of the line is arbitrary; but it is not arbitrary that a line is drawn. In order to ensure clear policy (and clear laws) it is often sensible to draw precise lines even though the underlying concepts and moral values change more gradually.

3. A third response, which is not always appropriate, is to place a barrier at a position that is not arbitrary but is justified for some principled reason. In the case of euthanasia a proponent might argue that there is a difference between voluntary active euthanasia and other types, such as non-voluntary active euthanasia. In accepting the possibility of voluntary active euthanasia one does not have to slide into accepting non-voluntary, or involuntary, active euthanasia: the logical relationships are more like a stairway than a slippery slope.

The empirical form of slippery slope argument

The second form of slippery slope argument is empirical, or ‘in practice’, not logical. An opponent of voluntary active euthanasia might argue that if we allow doctors to carry out such euthanasia, then, as a matter of fact, in the real world, this will lead to non-voluntary euthanasia (or beyond). Such an opponent might accept that there is no logical reason to slip from the one to the other, but that in practice such slippage will occur. Therefore we should, as a matter of policy not legitimate voluntary active euthanasia even if such euthanasia is not, in principle, wrong.

This empirical form of argument depends on making assumptions about how the world actually is and therefore raises the question of how compelling is the evidence for such assumptions. What will in practice happen will often depend on how precisely the policy is worded, or enforced. It may be possible to prevent slipping down the slope by putting up a barrier; or by careful articulation of the circumstances under which an action is, or is not, legitimate.

In this text we have stepped back from specific issues in medical ethics in order to reflect on some of the tools of reasoning. We will now return to issues and we will claim that the law is unjust in the way it deals with people who are mentally ill. We will start with the claim that the law is inconsistent.

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