The Right Way to Think About Medical Ethics

Posted on June 11, 2008
Filed Under Medical ethics |

Wherein long-time readers of this blog (or anyone who has merely read the title of this post) will be reminded that DrRich, not unlike some more well-known figures, does not mind audacity.

Both Dr. Gault and Sandy Szwarc have recently revisited the current state of medical ethics, and once again, both have found modern medical ethics wanting. Dr. Gaulte recounts the recent, sad history in which ethicists steeped in utilitarianism have seen fit to add the ethical precept of Social Justice to the individual physician’s ethical obligations. While this change brings medical ethics more in line with the actual behavior of American doctors in the wild, Ms. Szwarc nicely elaborates for us why this change in ethical precepts poses a grave threat. (She even bravely uses the “other” N-word, that word which today is invariably banned in polite conversations on ethics, but which, for better or worse, is unfortunately quite illustrative of the ultimate fruits of utilitarianism. Utilitarianism has again become fashionable after an all-too-brief time-out, and so we must not insult or embarrass respectable modern ethicists by dwelling too deeply on the lessons of history.)

DrRich himself has pointed out that by making Social Justice a chief ethical mandate of physicians at the bedside, doctors have not only committed professional suicide, but have formally embraced the covert rationing of their patients’ healthcare, and all of the social ills that flow therefrom (social ills whose enumeration is the main subject of this blog).

So several of us in the medical blogosphere have made, and continue to make, the point that the “new” medical ethics is counterproductive to the medical profession, to society, and to patients. But still, it must be acknowledged that the “old” ethics, under which the doctor’s only obligation was to the rights and welfare of the individual patient, no longer seems feasible. Any doctor who doggedly sticks to classic medical ethics today is likely to find him/herself out on the street in short order. And besides, the argument of the utilitarians that Social Justice must be honored within the healthcare system is, in fact, legitimate and essential.

Acknowledging that it does little good to criticize the status quo without offering something better, DrRich feels obligated to propose a different way of looking at medical ethics that a) honors the classic ethical obligations of physicians, and b) honors the needs of society. If he has seen fit to label this proposed solution for medical ethics “the right way,” it is more in the way of challenging his critics to engage in debate than to declare a final victory. Though, if critics fail to engage, DrRich will naturally assume he must indeed have nailed it.

“Classic” medical ethics.

Classically, doctors have been obligated to recognize two ethical precepts: Patient Welfare and Patient Autonomy.

The precept of Patient Welfare (also called the precept of beneficence, or “first, do no harm,”) obligates the doctor to always behave in a way that accrues to the benefit of the individual patient. The doctor’s patient comes first, and must be the doctor’s primary concern, above, for instance, personal and financial considerations.

Under the precept of Patient Autonomy, patients are acknowledged to have the right to self-determination regarding their own healthcare. Fundamentally, this means that patients have the right to know, and the doctor is obligated to inform them, of any and all information that might help them make their decisions regarding their own healthcare.

So classically, doctors were obligated to do whatever they must to assure that their individual patients were fully informed about all their medical options, and to act to assure that their patients got the care they needed (as long as, fully informed, they agreed to it).

Since under classical medical ethics the doctor’s one and only ethical obligation was to the patient, classical ethics did not allow the doctor to recognize any limits. Whatever bit of medical care promised even a small hope of benefitting the patient, doctors were obligated to offer it, no matter how expensive it might be to do so. This ethical system worked well enough until 40-50 years ago, since medical technology up to that time was relatively primitive, limited, and cheap.

The “New” medical ethics.

DrRich will not review here how skyrocketing costs, produced by rapidly advancing technology and an aging population, eventually led to the unavoidable need to ration healthcare, or how, because we’re Americans and Americans don’t ration, the unavoidable rationing was necessarily covert. (See virtually any post ever written on this blog for details.)

But, by the 1990s, medical ethicists became troubled that doctors who were forced to conduct covert rationing at the bedside could not do so under the classic ethical precepts that obligated the doctor to the welfare of their individual patients. But rather than pointing out that their behavior had become unethical, and calling for doctors to insist on being allowed to practice medicine without violating their fundamental ethical and professional obligations, ethicists instead began calling for a “new ethics” that would encompass doctors’ actual behavior.

This feat was accomplished in 2002, when the ABIM Foundation, the ACP-ASIM Foundation, and the European Federation of Internal Medicine published their manifesto, Medical Professionalism in the New Millennium: A Physician Charter. In it, these respected organizations proclaimed a third ethical precept: The principle of Social Justice. Social Justice charges physicians to work for “the fair distribution of healthcare resources.” That is, it specifically and directly justifies bedside rationing. (For a fuller discussion of this point, go here.)

That this third medical precept so directly contradicts the first two is either ignored by ethicists or celebrated as “balance.” DrRich’s only surprise is that ethicists have not (yet) found within this utter contradiction the virtue of diversity (the uber-virtue, from which the seven classic - though subsidiary - virtues must necessarily spring).

The negative implications of this official “new” medical ethic on doctors, patients, and society are truly staggering. For a masterful discussion of those implications, DrRich refers you to again to Ms. Szwarc. Here, DrRich will take only enough space to reiterate for his physician colleagues that once we physicians adopted this new ethic, we surrendered any claim we might have had to the title “professional,” and accordingly, we made ourselves fair game to any treatment, tactic, or travesty that any more powerful interest group (such as trial lawyers, Congress, or doctor-nurses) can get away with foisting on us. Physicians no longer have any ethical standing for turning such attacks aside. Rather, as non-professionals, our ability to withstand attacks can only be proportionate to whatever socioeconomical or political pressure we can muster.

So if “classical” medical ethics has been rendered obsolete by rising costs that mandate limits on spending, and if “new” medical ethics is irredeemably bad, then what are we to do? The answer of course, is “right” medical ethics.

The “Right” medical ethics

Medical ethics would be “right” if it could be made to comport with the classic notion of the doctor’s primary obligation to his/her individual patients, and yet respect society’s need for cost control. That is, the “right” ethics will recognize that society’s needs and the needs of individual patients are often in conflict, and will provide an ethical framework for resolving these conflicts.

We can profitably address this problem if we think of the ethics of healthcare as being organized into two concentric spheres. The outer sphere holds the ethical precepts adopted by society in order to guide the behavior of the healthcare system for the entire population. These outer-sphere precepts help ensure that the needs of society as a whole are served in an ethical manner by the healthcare system.

Contained within (and therefore subject to) that outer sphere of societal precepts is an inner sphere which holds the ethical precepts that govern the behavior of the healthcare system (including the behavior of physicians) toward individual patients. Inner-sphere precepts help ensure that individual needs within the healthcare system are addressed in an ethical manner - yet, in a manner consistent with outer-sphere (societal) precepts.

So, while the physician’s primary ethical obligation must be for the benefit of the individual patient, and thus while the physician must operate according to ethical precepts that honor this duty to individual patients (the inner-sphere precepts), their behavior must also conform with the ethical constraints imposed by society on the entire population (the outer-sphere precepts).

Because doctors and patients operating within the inner sphere must honor outer-sphere ethical precepts, it would be easy to surmise that the needs of society must always take precedence over the needs of the individual. To some degree this is the case. But it is more useful to think of the inner-sphere precepts as an immutable core of ethical beliefs that serve the fundamental American commitment to the autonomy of the individual, and of the outer sphere as a coating, fashioned by society and therefore changeable, that places a limit on individual autonomy, while protecting its essential immutability.

The inner sphere - ethical precepts for individuals

The inner sphere of ethical precepts - the core - obligates physicians to place the interests of their individual patient above all else, within the bounds imposed by society. This inner sphere holds the two ethical precepts of classical medical ethics, described above - patient welfare and patient autonomy.

While individual autonomy is critical, it has its limits. When a patient demands that everything possible be done for them, they are exceeding the bounds of autonomy if doing “everything” means that some other individual would thereby be deprived of what otherwise would be rightfully theirs. These bounds of autonomy are defined by the outer sphere.

The outer sphere - ethical precepts for society.

Under any equitable healthcare system we are going to have to carefully define our outer sphere ethical norms, because those are the standards that bound and govern the inner-sphere behaviors of doctors and patients. The outer sphere also consists of two ethical precepts, societal beneficence and distributive justice.

Societal beneficence (or social welfare) requires the healthcare system to maximize the overall public good realized from whatever resources society expends on healthcare. Social welfare is not the same as patient welfare, because what is optimal for an individual patient may often reduce overall benefit to society, and vice versa.

Distributive justice requires the benefits of the healthcare system to be distributed fairly, that is, in a way that does not discriminate against individuals or groups based on who they are.

The outer-sphere precepts honor society’s right to accrue optimal benefits from whatever resources society provides collectively toward healthcare. That is, the outer-sphere precepts recognize society’s legitimate interest in limiting and equitably distributing society’s collective resources.

Medical ethics and the spheres.

Now it is easy to see why the American healthcare system is presently inequitable and unethical. A hallmark of our system is the lack (thanks to our culture of no limits) of effective outer-sphere societal norms that would bound the appropriate behavior of individual physicians and patients. This lack makes it entirely feasible and very common for some patients to soak up a disproportionate share of publicly funded healthcare resources while others (though they are also paying into the system) are left with next to nothing.

Establishing equity should have nothing to do with adjusting the inner-sphere precepts. Individuals in the United States (to paraphrase the Declaration of Independence) have a self-evident right to their individual autonomy. The inner-sphere precepts are granted to us by the Creator, by natural law, or at the very least, by the Magna Carta and its derivative documents. As Americans we should avoid modifying the inner-sphere precepts at all costs, since, once we do, we are abandoning our foundational principles.

It is the outer-sphere precepts - those that can be negotiated legitimately by society, and which can legitimately limit the scope of inner-sphere behaviors - that we need to get into proper order.

A properly functioning system of medical ethics, therefore, would have society negotiate a set of outer-sphere precepts that would transparently define the rules for how society has chosen to set limits on healthcare spending. Then, within that system of societal rules, doctors and patients would work together, under a fully restored doctor-patient relationship, to assure that every patient receives all the information he needs on all the legitimately available medical options, and that the doctor leaves no stone unturned in obtaining those legitimate medical services for her patient.

In stark contrast is the process which gave birth to the “new” medical ethics now being promulgated by medical ethicists and the medical establishment now under their thrall. The current ethical model was the result of ethicists responding to the lack of functional outer-sphere precepts by simply moving the principles of societal beneficence and distributive justice (lumped together as Social Justice) down into the inner sphere, where individual doctors are expected to deal with them. You can’t actually do that, of course, because these are intrinsically outer-sphere norms. But our present-day ethicists have deemed it so, thus formally placing doctors into the position of having to serve the best interest of their patients (individual beneficence and autonomy) while at the same time, rationing healthcare covertly, at the bedside (societal beneficence and distributive justice). These interests, being often in stark conflict, simply are not possible for a physician to manage at the bedside. Charging doctors with the obligation to act in such an illogical, nonsensical and indeed impossible manner produces no good, and much harm.

Ethicists behaving badly

DrRich has thought long and hard about why medical ethicists have created such a non-solution for us. Are they stupid? DrRich thinks not, having tried unsuccessfully to read some of the arcane literature they produce, which is chock full of logical legerdemain, and by which (it appears to DrRich) they can justify almost any behavior you care to imagine. The stupid could simply not do that.

Rather, DrRich sadly concludes, it is cowardice. For, once ethicists determine that it is the obligation of society to establish the rules for limiting the rising cost of healthcare, the ethicists will be placed squarely in the line of fire; that is, the ethicists themselves will be asked to lead the process. Finding that to be a very scary prospect (many ethicists having chosen their field of endeavor, it seems to DrRich, precisely because it allows them to substitute critical commentary for difficult action), they instead have placed doctors in the position of having to ration healthcare for society at the same time they are supposed to be advocating for their individual patients. If there ever was an example of ethicists behaving badly, this is surely it.

If it’s any consolation to them, DrRich would like to assure modern ethicists that, having observed their recent behavior, he personally would never choose to burden them with the task of determining society’s rules for rationing healthcare. Indeed, if DrRich were in charge ethicists would have nothing to worry about, and might just as well tell us the truth.

Comments

4 Responses to “The Right Way to Think About Medical Ethics”

  1. Vijay Goel, M.D. on June 13th, 2008 1:08 pm

    Great posting.

    Its an interesting tension that we have between cost and access to/consumption of services. The current payer system separates the two and therefore makes these questions top down vs. bottom up in a binary (yes/no) fashion vs. gradated (cheap but good enough all the way to very expensive and feature rich).

    Our problem is that the discretionary nature of most health purchases is better suited to a bottom-up gradated (retail) type control on pricing rather than the binary coverage decision we see today.

    The binary coverage decision makes sense in insurance where terms are negotiated up front and the risk is uncontrolled, but predictable. Our system, as much of health “insurance” is about access rather than risk isn’t built to accomodate this complexity and moral hazard. We constantly receive the expensive, overengineered product/service as a result of the discretionary elements of a non-risk based transaction.

    Until we move management of chronic care, primary care, and wellness to the retail model, we’ll never get control over the gradated, discretionary choices that must be made in serving those needs.

    Instead, our model of top-down yes/no coverage decisions without the ability to negotiate up front leaves us in the ethically challenging environment we exist today.

  2. James on June 14th, 2008 2:22 pm

    Sure, medical ethicists might be talking about social justice. But, I don’t think doctors themselves have really embraced the concept. The culture of medicine still demands that we advocate for the patient, always keeping their best interests in mind. Occasionally, doctors give lipservice to “the obligation to society,” and then they turn around and essentially defraud the patient’s insurance company so he or she can get needed care without batting an eye.
    This is why we need mechanisms in place to ensure that everyone is entitled to affordable healthcare. Then, nobody needs to defraud anybody and we can all go back to behaving ethically.

  3. Kim on June 17th, 2008 4:05 pm

    The dual-circle ethic theory proposed in this blog is logical, accurate and achievable.

    It also shows the pressure that doctors have in trying to serve two masters: the patients individually and society as a whole. This is a conflict I was not consciously aware of and yet I encounter it everyday in the emergency department.

    Finding this blog is one of the reasons I love Grand Rounds so much. I’ll be visiting again - and probably citing the blog in a paper for an ethics class!

  4. Dragonfly on June 30th, 2008 4:54 pm

    Great post!!

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