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MED1011 Introduction to Ethics and Biomedical Ethics

Objectives
At the end of this tutorial you will be expected to:
o Have a deeper understanding of the nature of ethics, its role in medicine and how it guides
decision-making in clinical practice

1. Introduction
Medical ethics is at least as old as the Hippocratic Oath, a late 5th century (BCE) guide for the
professional conduct of physicians usually attributed to Hippocrates, an ancient Greek physician often
referred to as the father of Western medicine. The Hippocratic Oath has served as a guide for the
medical profession for more than two millennia, and is still used in the graduation ceremonies of many
medical schools.
The following passage from the Oath makes explicit the inherently ethical character of medical
practice: Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all
intentional injustice (Edelstein, L (trans.) 1943, The Hippocratic Oath: Text, Translation, and
Interpretation, Johns Hopkins Press, Baltimore).
The same can be said of the World Medical Associations (WMA) Declaration of Geneva, which when
it was first adopted in 1948 was intended as a re-statement of the commitment to the humanitarian
goals of medicine originally enshrined in the Hippocratic Oath in the wake of the medical crimes
committed in Nazi Germany:
I SOLEMNLY PLEDGE to consecrate my life to the service of humanity;
I WILL GIVE to my teachers the respect and gratitude that is their due;
I WILL PRACTISE my profession with conscience and dignity;
THE HEALTH OF MY PATIENT will be my rst consideration;
I WILL RESPECT the secrets that are conded in me, even after the patient has died;
I WILL MAINTAIN by all the means in my power, the honour and the noble traditions of the
medical profession;
MY COLLEAGUES will be my sisters and brothers;
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;
I WILL MAINTAIN the utmost respect for human life;
I WILL NOT USE my medical knowledge to violate human rights and civil liberties, even under
threat;
I MAKE THESE PROMISES solemnly, freely and upon my honour (WMA 2006).
Until the 1960s medical ethics was largely regarded as a sacred trust between physician and patient
that did not require any sort of external regulation. This changed with developments in research
ethics, such as the requirement that all research subjects provide informed consent and have the right

to withdraw, which spilled over into clinical concerns as medical decision-making was made more
complicated and fraught due to the introduction of new medical technologies and treatments.
For example, the development of the artificial respirator not only saved the lives of those fortunate
enough to return to normal health, but also maintained the heart and lung function of those unlikely to
recover consciousness. With the subsequent development of organ transplants and the need for
donor organs, patients kept alive by respirators were regarded as both a burden on medical and
social resources, and a potential source of life-saving organs.
In response to this dilemma, the Harvard Medical School set up a committee in 1968 to consider
whether patients in this condition should be declared dead and their organs made available for
transplantation. The committee subsequently recommended that the traditional heart-lung criterion of
death be abandoned, and that a patients death be understood to have occurred when brain function
was so impaired as to leave the patient in an irreversible coma. This re-definition of death raised
important philosophical questions about the nature of human beings and persons, and has
implications for ethical concerns over when it is permissible to withdraw life-support from a patient,
and when it is acceptable to remove organs from one human being in order to transplant them to
another.

Activity 1.1
One of the Harvard Committee members, Henry Beecher, justified this re-definition of death as
follows in an address to the American Association for the Advancement of Science:
There is indeed a life-saving potential in the new definition, for, when accepted, it will lead
to greater availability than formerly of essential organs in viable condition, for
transplantation, and thus countless lives now inevitably lost will be saved. As whatever
level we choose to call death, it is an arbitrary decision. Death of the heart? The hair still
grows. Death of the brain? The heart may still beat. The need is to choose an irreversible
state where the brain no longer functions. It is best to choose a level where, although the
brain is dead, usefulness of other organs is still present. This we have tried to make clear
in what we have called the new definition of death (1971, pp. 120-121).
(a) Is determining what counts as death just a medical matter?
(b) Should the death of a human being be defined:
o In purely biological terms in a manner which is applicable across all living things: for
example, as the irreversible cessation of organic functioning which may occur well after
brain-death; or
o Should human death be defined in person-centred terms: that is, as the cessation of the
existence of a person due to an irreversible loss of consciousness, or of the capacity for
personhood?
(c) Identify which aspects of this dilemma can be appropriately addressed by the technical
knowledge of physicians, and which are the domain of patients understandings of their own
welfare and interests.

As in this and many other cases, traditional medical ethics was ill-equipped to deal with the
complexities of a technologically-driven medicine that was also increasingly practiced in larger and
more impersonal institutions which required regulatory bodies and standardised practices. The
application of moral theory to pressing ethical concerns in clinical care, as well as broader issues
such as abortion, euthanasia, patients rights and protecting the privacy of personal information,

transformed medical ethics into a more open and contested field in which not only physicians but
philosophers, lawyers, and other interested parties also played a role.
Including ethics training in medical degrees is one aspect of this broadening of the scope of medical
ethics. However, poor role models in the health care settings are major factors in determining whether
medical graduates act on the ethical principles taught to them during their undergraduate training.
This is because some clinicians continue to regard the ethical analysis of health care decisions as an
intrusion into their professional autonomy and relationships with patients, as well as being an entirely
subjective matter that leads to interminable debates that rarely yield the right answers anyway (in
fact, ethical decision-making is no more subjective or vague than medical diagnoses).
The corrosive influence of such clinicians on medical graduates is sometimes referred to as the
hidden curriculum in medicine. Hafferty and Franks (1994) borrowed the term hidden curriculum
from debates in education to describe influential institutional cultures that undermine the fundamental
principles of medical ethics:
In short, many of the messages transmitted via the hidden curriculum may be in direct
conflict with what is being touted in formal courses on medical ethics or with what are formally
heralded by the institution as desirable standards of ethical conduct. One consequences is
that students experience the educational process as something structured around
inconsistencies, contradictions, and double-messages The result is feelings of moral
relativism and cynicism regarding the sanctity of the standards that are supposed to govern
their professional lives (p. 866).
Goldie et al. (2003) found evidence of a progressive decline of ethical commitment during
undergraduate medical training in their study of students at the University of Glasgow Medical School.
When medical students were challenged with the same ethical problem (whistleblowing on a corrupt
colleague) in the first and last weeks of a four-year medical training course, the number of students
making the ethically correct decision was unchanged at 40%. However, when they were all asked
whether they would then go on to do anything about the decision, the number that confirmed they
would actually report the unethical behaviour declined during the medical course from a high of 13%
in the early weeks, to a low of less than 5% in the last weeks of training (see also Bolsin, Faunce &
Oakley 2005).

Activity 1.2
(a) From your perspective at the start of your medical schooling, what contribution do you think
formal ethics training can make to your development as a health care professional?
(b) Reflect upon the kind of messages transmitted via the hidden curriculum discussed above
that could undermine your the commitment to the humanitarian goals of medicine as
expressed in the Declaration of Geneva.

The following sections of these notes provide a brief introduction to ethical theory, including three
important moral theories: consequentialism, rights-based, and virtue ethics, as well as the fourprinciple approach which has served as a framework for ethical decision-making in health care since
the late 1970s.

2. Ethical theory: A very brief overview


The words ethics and morality both have their roots in words meaning customs. Ethics comes
from the Ancient Greek word ethikos, which also gives us ethos. Moral derives from the Latin word
mos, which is also the root of mores and morale. The two terms are commonly used
interchangeably, though some use the term morality to refer to the rules or guidelines that shape our
judgements as to what we ought or should do, and ethics to refer to the rational reflection on our
moral beliefs.
For the Ancient Greeks, ethical thought begins with the question: How should we live? It begins with
the simple observation that there are happy and unhappy lives, better and worse ways of living. As
soon as we start thinking in general terms about what is valuable in life, and about how that value
might be realised, we are involved in ethical reflection. At its most fundamental level, ethics is
concerned with finding what reasons there are for making one choice rather than another; for living
one way rather than another.
One way to approach the nature of ethics is to think about the distinction between intrinsic value and
extrinsic value. This is a distinction originally drawn by Aristotle in his Ethics (written in the Fourth
Century BCE). Many things are valuable because they are useful for some other purpose; for
example, knives are useful for cutting, and telephones are useful for communicating. Such things are
therefore extrinsically valuable because their value is determined by what they enable us to do. In
contrast, something is intrinsically valuable if we value it for its own sake, as we do happiness (some
philosophers think that happiness is the only thing that is intrinsically valuable).
The significance of this distinction becomes clear when we think about what it is to give a justification
of ones actions. Suppose, for example, we ask a swimmer why she spends hours in the pool
practicing her backstroke. She replies that she does this to perfect her technique. Why bother to
develop good technique? Because it helps to win swimming races. We then ask: Why do you want to
win swimming races? Clearly this chain of questions cannot continue indefinitely. It will end when the
swimmer asserts that some goal is intrinsically valuable. What she will then have explained is how
sound backstroke skills contribute to this intrinsically valuable goal. In general, intrinsic values are
what we require to provide moral justifications for our choices and actions.
Applying the same logic to a moral issue such as lying, you might think that lies are bad because they
can harm people. Alternatively, you might think that lies are bad in themselves, irrespective of the
harm they may or may not cause. To take the first option is to think that there is nothing intrinsically
bad about lying, as it is only wrong if it has harmful consequences. The alternative is to regard truth
as intrinsically valuable, which makes lying wrong regardless of its consequences. The general point
here is that actions or states of affairs can be judged right or wrong, good or bad, desirable or
undesirable, due to either their consequences, or because of their intrinsic value.
Two forms of moral disagreement follow from this conclusion: we might share the same basic values,
but disagree about the course of action that best realises those values; or we might disagree over
what is intrinsically valuable. For example, suppose we have a mutual friend and I propose to tell a lie
to protect that persons feelings. You might agree with me that our friends happiness is the most
important consideration here, but you dont think the lie will work. If the lie is discovered it may
increase the harm rather than lessen it. Or you might just think that I shouldnt lie to a friend
regardless of how painful the truth might be. These would be quite different arguments. The first
argument is about consequences, while the second is about the relative value of honesty and
happiness.
Disagreements such as these lead to moral dilemmas that force us to decide between either the
lesser of two or more evils, or the greater of two or more goods. Applied ethics has developed as one
way of responding to moral dilemmas by employing ethical concepts such as justice, welfare, utility,
rights, freedom, duty, obligation, equality, fairness and integrity to concrete situations. Because the
meaning and importance of all these and other basic ethical concepts is disputed, we also need a

means of deciding which concepts are most relevant for particular circumstances, which is where
ethical theory comes in. Ethical theory examines the meaning and usefulness of ethical concepts as a
way of identifying the real source of disagreement in moral disputes. It does so by offering a
systematic framework for making ethical judgements that are consistent with both one another and
what we believe is intrinsically valuable.
Another common source of disagreement in ethical matters is whether value judgements are valid
across different cultures; that is, if they are culturally relative. Superficially, at least, the fact that moral
beliefs and practices differ from one culture to another supports the view that right and wrong, or good
and bad, are culturally relative notions. This means that such judgements have meaning only within a
particular culture and historical period, and so for someone to judge that an act is right is to say no
more than it is permitted by that culture at that time. The cultural relativist therefore maintains that
there is no such thing as an objective moral truth.
While there is no doubt that moral values are culturally variable, many argue that there is also much
that is common between cultures, such as the value placed on caring for children, keeping promises,
and telling the truth. There are also significant problems with ethical relativism, foremost amongst
them is that it becomes impossible to criticise the moral value of culturally specific practices such as
child brides or female circumcision that we might think are harmful no matter who you are or where
you live.

Activity 2
The following passage from an article written by the North American philosopher and bioethicist
Ruth Macklin discusses the case of a Laotian immigrant from the Mien culture who presents her 4
month-old baby to a paediatrician for a routine check-up. The paediatrician finds burns on the
childs stomach which her mother explains are due to a traditional folk remedy for incessant crying
and loss of appetite.
The reluctance to impose modern medicine on immigrants from a fear that it constitutes
yet another instance of cultural imperialism is misplaced. Is it not it possible to accept
non-Western cultural practices side by side with Western ones, yet condemn those that
are manifestly harmful and have no compensating benefit except for the cultural belief that
they are beneficial? The commentators who urged respect for the Mien woman's burning
treatment on the grounds that it is practiced widely, the reasons for it are widely
understood among the Mien, and the procedure works, from a Mien point of view, seemed
to be placing that practice on a par with practices that work from the point of view of
Western medicine. Recall that if the skin does not blister, the Mien belief holds that the
illness may be related to spiritual causes and a shaman might have to be called. Should
the pediatrician stand by and do nothing if the child has a fever of 104 and the parent
calls a shaman because the skin did not blister? Recall also that the Mien woman told the
pediatrician that if the burns are not done in the right place the baby could become mute
or even retarded. Must we reject the beliefs of Western medicine regarding causality and
grant equal status to the Mien beliefs? To refrain from seeking to educate such parents
and to not exhort them to alter their traditional practices is unjust, as it exposes the
immigrant children to health risks that are not borne by children from the majority culture
(1998, pp. 19-20).
Respond to the following questions drawn from the quote above:
(a) Is it possible to accept non-Western cultural practices alongside Western ones yet still reject
those that are manifestly harmful and seem to have no compensating benefit except for
satisfying the cultural belief that they are beneficial?

Activity 2 continued
(b) Should the pediatrician stand by and do nothing if the child has a fever of 104 and the parent
calls a shaman because the skin did not blister?
(c) Must we reject the beliefs of Western medicine regarding causality and grant equal status to
the culturally-bound beliefs of people such as the Mien?
(d) Is it unjust to refrain from seeking to educate parents from different cultural backgrounds and
to not exhort them to alter their traditional practices given that immigrant children may be
exposed to health risks that are not borne by children from the majority culture?

The next three sections provide a very broad introduction to three influential moral theories:
consequentialism, rights-based, and virtue ethics, all of which offer different approaches to both
guiding and justifying moral judgements.

3. Consequentialism
Consequentialism is the view that actions should be judged solely according to their likely
consequences. It is motivated by the very simple but persuasive idea that the goal of morality is to
create the best possible world, and that with this end in mind the right act is always the one that has
the best overall consequences. This means that no act or state of affairs is ever intrinsically good or
bad. It is rather the likely consequences of an act or state of affairs that make it good or bad.
Consequentialism covers a range of ethical frameworks that share a common concern with the good
or bad consequences of actions, but differ on the nature of the consequences favoured; that is, to
decide whether consequences are good or bad we first have an idea about what makes a state of
affairs good or bad.
For classical or hedonistic utilitarianism the only consequences that matter are the increase or
decrease in pleasure or happiness caused by the action. For preference utilitarianism it is the
increase or decrease in the satisfaction of preferences that is important. The English philosopher G.E.
Moore (1873-1958) regarded pleasure, friendship, and aesthetic enjoyment as intrinsically valuable,
which makes right actions those that lead to more of these goods.
Accordingly, there are two parts to any consequentialist theory. First, it must give some principle for
ranking different likely outcomes from best to worst; that is, the theory must provide guidance on how
to define good and bad consequences. Second, consequentialist theories maintain that the right thing
to do is to aim for the best possible outcome.
One of the earliest and the most influential forms of consequentialism is utilitarianism, which was
originally proposed by the Scottish philosopher David Hume (1711-1776), but was given definitive
formulation by the English philosophers Jeremy Bentham (1748-1832) and John Stuart Mill (18061873).
For Bentham morality was not about pleasing God or being faithful to abstract moral rules, but about
making our lives as happy as possible. Bentham argued that that there is one ultimate moral principle:
the principle of utility, which requires us to always choose the action likely to have the best
consequences for everyone concerned:
By the Principle of Utility is meant that principle which approves or disapproves of every
action whatsoever, according to the tendency which it appears to have to augment or diminish
the happiness of the party whose interest is in question (1961 [1789], p. 14).

Bentham defined utility in terms of pleasure and pain, arguing that we should act in such a way as to
maximise pleasure and minimise pain a position known as hedonistic utilitarianism (as was
mentioned above).
However, we value all sorts of things, such as friendship, overcoming adversity, artistic creativity, and
parenting for their own sake. While these kinds of things give us pleasures, it is that the only reason
we value them? For example, we commonly regard friendship as a good thing, and there is no doubt
having friends more often than not gives us pleasure. But is this the same as cultivating friendships as
a means of maximising our pleasure?
In response to such criticisms John Stuart Mill argued that utility should be defined in terms of
happiness rather than pleasure, a position that is sometimes referred to as eudaimonistic
utiliitarianism:
The utilitarian doctrine is that happiness is desirable, and the only thing desirable, as an end;
all other things being desirable as means to that end (1998 [1861], p. 52).
A number of reasons support this redefinition of utility:
o We tend to think of pleasure as being primarily bodily or sensual in character, whereas
happiness is usually less immediately tied to the body or sensation.
o Pleasure is in general of shorter duration than happiness. This is because pleasure commonly
arises when a state of deprivation is replaced by a state of satiation or fulfilment, but once
satiated the thing that gave us pleasure often loses its allure. In contrast, happiness is
commonly associated with the realisation of certain goals, hopes, or plans for ones future.
Insofar as these are intrinsically rewarding ones, we do not usually tire of them in the same way
we tire of many pleasures.
o Happiness may encompass both pleasure and pain, as many would regard themselves as
happy despite the painful experiences we all endure, and it often happens that we experiencing
pleasure without also feeling happy.
However, there is an unavoidable element of evaluation in our notion of happiness that makes it more
difficult to quantify or weight when assessing which actions lead to the greatest happiness for the
greatest number. While we may want to distinguish between good and bad pleasures, or harmless
and harmful ones, we do not doubt that even bad pleasures are still pleasures. With happiness we are
likely to question whether someone is genuinely happy in a way that we do not question whether they
are genuinely feeling pleasure. The problem with weighing consequences is that it is much easier to
weight pleasure than happiness or ideal goals, yet pleasure is the least suitable standard.
Most modern utilitarians define utility (or the good) in terms of desires or preferences, which is more
or less the same meaning it has for contemporary economists. Because utility is a function of your
preferences, if you desire something very strongly that thing has a high utility for you. When utility is
defined in terms of individual preferences, the resultant theory is known as preference utilitarianism,
the basic thesis of which is that the right action is the one that produces the greatest overall
satisfaction of preferences.
According to preference utilitarians, the best world is the one where as many people as possible have
their desires satisfied, and the fewest people are frustrated. It is important to note that preference
utilitarians are subjectivists about what is desirable: considered in themselves, desires are not right or
wrong. Your good is entirely a matter of what you happen to desire, and my good depends on what I
desire. There is no standpoint from which we can say that one persons desires are better or worse
than anothers. The task of ethics is not to tell people what to desire, because there are no objective
facts about what is desirable.
Preference utilitarians think that to take the neutral point of view is to imagine yourself in the position
of an umpire adjudicating between the competing interests of different people. Everyones desires
must be given equal consideration, and so the most reasonable thing to do is to make as many

people as possible happy. In a way utilitarianism is like a kind of moral democracy, except that all our
desires count as votes, and the strength of desires is also relevant.
One of the strengths of utilitarianism is that the notion of rational choice that the theory uses is the
same one we use in everyday life. Think about the ordinary understanding of rational choice.
Suppose, for example, that you have the day off and you are wondering what to do. A range of
options present themselves. Normally the way you make such a choice is by ranking the available
options from most desirable to least desirable. The rational choice is simply to choose your first
preference. If, for some reason, that is unavailable, then you should choose your second preference,
and so on. It would be odd to rank your recreational options, and then to choose number four when
you could have chosen number one. It would be an odd thing to do to choose to watch a television
show you find boring, when your favourite show is on at the same time. A rational person aims to
maximise his or her satisfaction.
According to utilitarians, the difference between the moral point of view and your personal point of
view is that moral judgement requires us to give equal weight to the interests of others and our own.
From your own personal point of view the rational thing to do is to maximise your own happiness.
From the moral point of view the rational thing to do is to maximise overall happiness.

Activity 3
(a) For utilitarianism, as with consequentialism more generally, the end justifies the means: The
end is where we wind up; it is the consequences that we have to live with, and it is hard to
resist the idea that we should aim to wind up in the best possible situation.
(i) From your own experience, does the end always justify the means?
(ii) Does the end always justify the means in health care decisions?
(b) As was mentioned above, utilitarianism not only requires everyone to do what they can to
maximise utility, however defined, but to do so impartially:
The happiness which forms the utilitarian standard of what is right in conduct, is not the
agents own happiness, but that of all concerned. As between his own happiness and that
of others, utilitarianism requires him [or her] to be as strictly impartial as a disinterested
and benevolent spectator (Mill 1998 [1861], p. 52).
Impartiality is often regarded as an advantage in ethical judgements, as we tend to think that all
people should be treated fairly if we are to act morally. However, this requirement for equal
concern places what some believe to be too great a demand on us. This is because the accident
of finding ourselves in particular circumstances can force us to abandon our most cherished
projects in order to achieve better consequences in some other way.
The utilitarian requirement for equal concern also disrupts our personal relationships. In practice,
very few of us is willing to treat all people as equals, for it would require us to abandon our special
relationships with friends and family. We are all deeply partial where our family and friends are
concerned. We love them and we go to great lengths to help them. To us, they are not just
members of humanity - they are special.
But all this is inconsistent with impartiality. When you are impartial, intimacy, love, affection, and
friendship should not count when deciding what the right course of action is in particular
circumstances. Is this aspect of consequentialism a help or a hindrance in clinical care?

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As a result, utilitarianism has been criticised for being too demanding, as the well-being of
strangers counts as much as that friends, family and oneself.

4. Rights-based ethical theories


Approaches to ethical reasoning that fall under the heading of rights-based ethics are more diverse
than consequentialist theories as they do not share any single principle or rule. What they have in
common is that they are non-consequentialist in the sense that consequences are not believed to be
the only thing that matters.
One of the most common complaints against consequentialism is that it does not respect the
importance of justice or fairness. In trying to bring about the best overall consequences,
consequentialists may find it acceptable to sacrifice the interests of individuals for the greater good.
The objection here is that consequentialists think about people the way a chess player thinks about
the pieces in a game. Just as individual pieces might be sacrificed to achieve the goal of winning, a
consequentialist is prepared to sacrifice some individuals for the greater good.
Even though rights-based approaches differ in the particular rights they endorse, as well as the
reasons given for endorsing them, they all share the intuition that every individual should be
guaranteed certain liberties, protections and entitlements, such as the right to life or liberty, and that
rights are the most reliable way of ensuring these. To believe in inviolable rights is therefore to believe
that there are certain acts which are always wrong, regardless of the benefits that might be achieved.
For instance, the right to life forbids the killing of an innocent individual even if it is possible to save
the lives of several people by killing one healthy person and using his vital organs for transplants. One
random death to save, say, five other lives looks like a clear net gain, but most people think that an
act of this kind is intolerable, even if protecting the rights of one individual has unfortunate
consequences for others.
Rights express a certain kind of relationship between two parties: the rights holders, and the rights
observers. From the perspective of the rights holder, a right is a permission to act: an entitlement to
act, to exist, to enjoy, to demand. The rights-holder is entitled to claim whatever is covered or
guaranteed by the right. From the perspective of the rights observer, the right usually imposes a
correlative duty or obligation upon them. That duty may be either negative (to refrain from interfering
with the rights holders exercise of the right), or positive (to assist in the successful exercise of the
right), depending on the nature and scope of the right.
For example, we have a right to free speech which gives us permission (within certain limits) to say
whatever I want, and it obligates other people (within certain limits) to refrain from interfering with my
speech. The right of free speech is one of a group of rights that we call negative rights or rights of
non-interference.
The other groups of rights are referred to as positive or benefit rights, which are those that guarantee
a particular good to those who bear the right, though in doing so also imposes obligations on others to
provide that good. For example, the right to legal representation in court imposes an obligation on the
state to provide individuals with a lawyer if they cannot afford their own. Positive or benefit rights are
claimed for many different kinds of goods: education, health care, clean water and so on.
There are four broad approaches to establishing and justifying rights:
(i)

Appeals to self-evidence: This commonly arises when particular claims seem so obvious to
some that they find it difficult to understand how anyone could question them. The UN
Universal Declaration of Human Rights (1948) offers no arguments in support of its long list of
human rights, but simply seems to take their existence for granted. The difficulty with this kind
of justification is that even if it were true, it is unhelpful when others when others fail to also
find such claims as self-evident and so disagree.

(ii)

Appeals to divine foundations: A divine foundation for human rights offers the strongest
imaginable basis for claims of natural rights insofar as there is (by definition) no stronger
power imaginable than God to guarantee those rights. One of the other attractive aspects of
this kind of justification is that it places rights firmly in the basic structure of the moral

universe. Because rights come from God, they are part of the deep structure of the world
rather than merely superficial phenomena posited by individuals or governments. The obvious
problem here is that many contemporary societies are secular and so unlikely to be convinced
by appeals to divine foundations, while societies that take particular religious doctrines as
their foundation often include religious minorities that may disagree on key values.
(iii) Appeals to natural law: The theistic approach to natural law is based on a notion of the natural
order as fundamentally good (because it comes from, and is oriented toward, the divine).
Thus to call something natural is to attach a normative as well as a descriptive label to it. It
says that something is good, not simply that it is. The Catholic Churchs prohibition of birth
control, for example, is grounded in a view of the natural order that maintains that the sexual
act is naturally oriented toward procreation and that anything that thwarts that purpose is
immoral. Similar objections have been advanced against homosexuality.
Nontheistic approaches to natural law need some way of establishing that the natural order is
fundamentally good without recourse to its divine origins, otherwise there is no basis for
reaching a normative conclusion about rights without committing the naturalistic fallacy - the
claim that what is natural is inherently good or right, and that what is unnatural is bad or
wrong.
(iv) Appeals to human nature: Justifications for rights grounded in human nature commonly
involve the identification of traits regarded as characteristically human, along with the
accompanying claim that these traits are rights-conferring properties.
Two criteria are frequently cited when determining which traits qualify as rights-conferring
properties:
(a) The more essential a trait is to being human, the stronger the case for it being a rightsconferring property. These are commonly identified as: rationality, the ability to think;
autonomy, the ability to make free choices; sentience, the ability to feel and suffer; the
ability to be a self or person; the ability to have projects and plans.
(b) Rights-conferring properties are limited to those characteristics that are morally good or
morally neutral. There are strong arguments that human beings are by nature aggressive
and violent, yet even if one grants the soundness of such arguments, few would want to
conclude that we have a right to be aggressive and violent. It is this covertly normative
criterion that explains how such arguments seem to move from an essentially descriptive
premise stating a characteristic of human beings, to a fundamentally normative conclusion
about a right that human beings have. The normative element is buried in the selection of
characteristics that legitimately count as rights-conferring properties.

Activity 4.1
If we agree that rights impose morally legitimate claims on others as described above, there is
little controversy about acknowledging that adult human beings with normal capabilities possess
such rights; indeed, they are the paradigm case of rights-holders.
What is less clear is whether human beings who do not exhibit rights-conferring properties such
as rationality and autonomy also have a legitimate claim to the same rights. For example, do
foetuses, newborns, the unconscious, or severely demented have a right to life? If so, whats the
basis of such rights?

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The most influential rights-based ethical theory was developed by the 18th century German philosopher
Immanuel Kant, who argued that we become truly self-determining and therefore free only when we use
reason to determine our actions. Only reason can reveal to us how we ought to act, and so any human
with a capacity for rationality can determine what is right and wrong and perform morally good actions.
Kants Enlightenment project was to develop a morality in which any rational being has the opportunity to
live a moral life, to act in ways which are morally good, and is owed a certain basic respect. Thus, Kant
sought to underwrite a respect for persons which was independent of the contingencies of fortuitous birth
or social circumstances, since reason is a means of anyones seeking ethical guidance.
Kant's approach to the moral evaluation of actions revolves around what he calls the Categorical
Imperative, which provides a standard or criterion for assessing actions by evaluating the principles or
maxims upon which an agent is acting. Kant gives several formulations of the Categorical Imperative,
the first (and best-known) of which is:
Act only according to that maxim by which you can at the same time will that it should become a
universal law (Kant 1959 [1785], p. 421).
For Kant, the rightness or wrongness of an act is determined by whether or not it contravenes the
Categorical Imperative test which he applied to derive a range of duties, such as we should not make
false promises. As the contemporary English philosopher Onora ONeill explains, deception is morally
impermissible because it cannot consistently be universally willed without self-contradiction.
Maxims of deception cannot be universally adopted: deceptions work only in contexts where most
communication is non-deceptive. Deception undercuts others cognition, it treats others as things or
tools, and extracts their agreement. Any consent or agreement given to deceptive action, which preempts the victims cognitive capacities, is bogus. The victims are not genuinely treated as agents. A
maxim of deception could not underlie all action, since deception works only where conditions of trust
are established and maintained. Action which is fundamentally based on deception must be selective
and so forbidden on Kantian grounds. It allows the deceiver a position of privilege denied the victim
(1986, p. 139).
By using the reasoning employed in the Categorical Imperative, Kantians provide a theory of basic
moral rights. These rights include a right not to be deceived, and a right not to be coerced or
manipulated by others. The moral evaluation of an act is made according to what would or would not
infringe those basic rights. So, if we keep the duties which are correlative to those rights, we will not act
wrongly (even if we don't thereby do the very best that we could do).
The main concern contemporary Kantians have had in applying Kants theory to medical ethics is that we
should act with a due regard for the autonomy of moral agents. In doing so, they have been guided by
Kant's second formulation of the Categorical Imperative:
Act so that you treat humanity, whether in your own person or in that of another, always as an
end and never as a means only (Kant 1959 [1785], p. 429).
In other words, we should act so as to treat others as autonomous, self-legislating, moral agents. Thus,
for Kantians, autonomy (as the capacity for rational, universalisable, self-legislation) is intrinsically
valuable, because it is here that we express our true humanity as free, rational beings.

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Activity 4.2
As was mentioned above, Kant argued that deception is morally impermissible because it cannot
consistently be universally willed without self-contradiction. He also argued that we should act so as
to treat others as autonomous, self-legislating, moral agents.
Lies are morally wrong, then, for two reasons. First, lying corrupts the most important
quality of my being human: my ability to make free, rational choices. Each lie I tell
contradicts the part of me that gives me moral worth. Second, my lies rob others of their
freedom to choose rationally. When my lie leads people to decide other than they would
had they known the truth, I have harmed their human dignity and autonomy. Kant believed
that to value ourselves and others as ends instead of means, we have perfect duties (i.e.,
no exceptions) to avoid damaging, interfering with, or misusing the ability to make free
decisions; in other words - no lying (Mazur 1993, para. 4).
In contrast, utilitarianism would consider altruistic lies those intended to benefit others as morally
acceptable. Consider the following case:
A physician who tells a depressed and terminally patient that there is a 50-50 chance of
recovery, even though all tests confirm that the patient has only 6 months to live. The
physician knows from years of experience that if patients with this kind of psychological
profile are told the truth there is a strong chance of falling deeper into depression and
possibly committing suicide. With the hope of recovery, though, the patient will more likely
cherish the time remaining.
(a) Is the physician justified in deceiving the patient? Explain why.
(b) From the perspective of Kants moral theory, the physicians duty not to deceive the patient is
clear, and so what follows from discharging this duty (whether or not the patient spirals further into
depression and possibly commits suicide) is not the responsibility of the physician. Do you agree
with this position? Explain why.

who else is impacted?


dependants, family, other stuff not mentioned
5. Virtue ethics
Both consequentialist and rights-based ethical theories take acts as the objects of moral judgement,
and then offer principles for deciding whether an act is right or wrong. In contrast, virtue ethics is
concerned with the development of character. Rather than trying to define general principles of right
action, it focuses on what it is to be a good person - on what people should be like, rather than what
they should do. The focus is therefore on character traits or dispositions rather than actions.
The virtues are those character traits or dispositions considered essential for leading a good life, and
so provide a basis for addressing fundamental moral questions such as: What should we do?; Who
should we be?; and How should we live?
Different philosophical and religious traditions tend to enumerate different virtues, though there is
considerable overlap between them. A broadly representative list of the virtues commonly thought to
be relevant to contemporary western cultures would likely include politeness, fidelity, integrity,
honesty, prudence, temperance, courage, justice, generosity, benevolence, compassion, mercy,
gratitude, humility, simplicity, tolerance, purity, gentleness, good faith, humour, and love.
Virtue theorists argue that no set of principles or rules, or any amount of ethical reflection, could ever
substitute for wise judgement and the capacity and willingness to act accordingly. In life no problem is
ever exactly like another. Every situation has its own unique complexities, and it is unreasonable to
think that we could formulate rules that work in every situation. The alternative offered by virtue ethics

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is to rely instead on the cultivation of virtues, as a person of sound moral character is more likely to
choose and act ethically no matter what situations arise.
The main elements of virtue ethics were first expounded by the Ancient Greek philosopher Aristotle in
the 4th century BCE. Aristotles ethics is largely concerned with the question of what promotes human
happiness or flourishing (eudaimonia) - about what leads to a fuller and happier human life. Virtues
are those strengths or excellences of character that promote human flourishing. Courage, for
example, is a virtue because we have to be able to face and overcome our fears if we are to achieve
our goals in life.
Aristotle defined virtue as a (i) habit or disposition of the soul, (ii) involving both feeling and action, (iii)
that seeks the mean in all things relative to us, where the mean is defined through reason as the
prudent man would define it.
(i) Habit of the soul: Aristotle tells us that virtue is a hexis, a disposition or habit. We are not born
with virtues. Rather they are cultivated, often through practice. Moral education for Aristotle
thus focuses on the development of a persons fundamental character.
(ii) Feeling and action: For Aristotle, virtue is not simply a matter of acting in a particular way, it is
also a matter of feeling certain ways. Virtue includes emotion as well as action. The
compassionate person not only acts in certain ways that help alleviate the suffering of others,
but also empathises with their suffering.
(iii) Seeking the mean relative to ourselves: A virtue involves finding the mean between the two
extremes of excess and deficiency. Courage, for example, is that middle ground between
cowardice (too little) and foolhardiness (too much). We can err in regard to either factor, as we
may have too much or too little fear, or we may have too much or too little confidence in
ourselves.
Some have argued that Aristotles virtue ethics is culturally-bound and so shaped by the values of
ancient Athens. Yet there are some universal elements, and Aristotle provides a good hint about how
these can be established.
There are, he suggests, certain spheres of existence that all of us have to encounter. We all have to
develop an attitude toward the accomplishments and successes of other people: envy, admiration, or
belittling are some of the possible attitudes. We all have to develop an attitude toward the offences
and hurts that others inflict on us. Some people will be resentful and revengeful, others forgiving, still
others will just be doormats. Similarly, we all have to develop an attitude toward our own offences to
other people. Again, there are a wide range of possibilities, from being indifferent to being overly
guilty. Somewhere in the middle are the proper attitudes of remorse and reparation.
At the very heart of Aristotles understanding of the moral life is his notion of phronesis, which is
variously translated as wisdom, practical wisdom, prudence, and even intelligence. In discussing
phronesis, Aristotle stresses two elements:
o The practical dimensions of such judgments, which are essentially concerned with applying
something general a conception of the good life or of human flourishing to very specific
cases.
o By referring to this as a practical wisdom, he emphasises the fact that it goes beyond the mere
mechanical application of rules.
In this way, Aristotelian moral judgments are distinguished from calculations of the type we find in
utilitarianism, or the deductions of Kantianism. Indeed, phronesis is closer to art than it is to science.
Practical wisdom has several elements: It involves (i) the reflective and affective application of a
general disposition to right action of some kind (i.e., a virtue such as courage) to (ii) a particular
situation (e.g., a threat by a mugger) in light of (iii) an overall conception of human flourishing.

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Practical wisdom therefore consists in the application of a specific excellence of character to a


particular situation in light of an overall conception of the good life.

Activity 5.1
Virtue ethics has an obvious role in the professional lives of healthcare practitioners, as character
traits such as benevolence, integrity, honesty, fidelity and compassion enhance therapeutic
relationships, support effective health care, and prepare healthcare practitioners to better respond
to the often intensely personal nature of the ethical issues that confront them.
Consider again the case from Activity 4.2 of the physician who tells a depressed and terminally
patient that there is a 50-50 chance of recovery, even though all tests confirm that the patient has
only 6 months to live.
Working through each of the three elements of Aristotles conception of practical wisdom mentioned
above:
(a) Which of the virtues listed above (or others not listed) are relevant to this case?
(b) What conception of human flourishing does medicine serve?
(c) Apply the virtue or virtues identified in part (a) to the case in the light of the conception of human
flourishing identified in part (c) to decide whether or not you would deceive the patient.

Promoting the health of individuals and communities is the main aim of medicine. As Aristotle put it at
the beginning of the Nicomachean Ethics (1094a7), the end of the medical art is health, and given
the importance of health for human flourishing, medicine clearly counts as a virtuous profession.
Some of the character traits required to meet and further the goal of patient health, and so which
count as medical virtues, include:
o Benevolence, which disposes physicians to attend to their patients interests due to a genuine
concern for their well-being and the disposition to act on the basis of such concerns in particular
situations.
o Trustworthiness, which aids effective diagnosis and treatment by helping patients feel
comfortable about disclosing intimate information. A higher than ordinary level of
trustworthiness is required of clinicians due to patients vulnerabilities and regardless of how
much time has been with them.
o Courage, which is required by physicians when, for example, they face risks of serious infection
in treating patients, though in finding the appropriate mean should not disregard proper
precautions against becoming infected themselves. It may also be required when considering
blowing the whistle on unethical medical practices or an incompetent or reckless colleague.
When faced with the question of how to act ethically in particular circumstances, instead of asking
whether an action is in accordance with duty (as Kantians would) or is likely to maximise the good (as
utilitarians would), a virtue ethicist would ask: What type of person would do the sort of thing which I am
considering doing? Or, What sort of character would a person who normally did this have? For
example, we can ask whether an action was generous or mean-spirited, courageous or cowardly, friendly
or unfriendly. And we can ask whether this is the sort of thing which a kind person, a just person, or a
self-respecting person would do in these circumstances.
As a theory of right action, then, the most fundamental claim made by virtue ethics is that reference to
character or virtue are essential in the justification of right action. A virtue ethics criterion right action
can be stated in broad terms as follows:

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An action is right if and only if it is what an agent with a virtuous character would do in the
circumstances.
A right action is therefore one that is in accordance with what a virtuous person would do in the
circumstances, and what makes the action right is that it is what a person with a virtuous character
would do, as the following examples demonstrate:
o It is right to save anothers life, where continued life would still be a good to that person,
because this is what a person with the virtue of benevolence would do.
o It is ordinarily right to keep a promise made to someone on their deathbed, even though living
people would benefit from its being broken, because that is what a person with the virtue of
justice would do.
One of the most common criticisms of virtue ethics is that as a criterion of rightness it is too vague to be
an acceptable basis of justification in ethics. What would a virtuous agent do in the great variety of
situations in which people find themselves? Also, there is a plurality of virtuous character-traits, and not all
virtuous people seem to have these traits to the same degree. Moreover, these people might not always
respond to situations in the same way. Given a particular set of circumstances, is the right action here the
action which would be done by an honest person, a kind person, or a just person? Moreover, even if the
range of possible virtuous characters is narrower than this suggests, how do we know what a virtuous
person would do in a particular situation?
While it is true that virtue ethics does not deliver an algorithm of right action (as Aristotle put it), and that
a virtue ethics criterion of rightness is perhaps less precisely specifiable and less easily applicable than
that given by ethical theories which take acts as the objects of moral judgement, it is an over-reaction
to then claim that this undermines virtue ethics claim to provide an acceptable approach to ethical
justification.
The demand for clear and unequivocal answers to ethical dilemmas is a symptom of the modernist
emphasis on technical responses to clearly defined problems. Ethical theories such as
consequentialism and rights-based approaches are an expression of this, and the failure of these
theories to provide clear and unequivocal answers to ethical dilemmas is more likely to be a factor of
the complexity and ambiguity of the moral landscape than the need for a better theory.
With this in mind, an ethics of action is equally in need of an ethics of character for at least the
following two reasons:
o One of the single greatest difficulties that act-oriented moral theories face is in applying a moral
theory to a particular case. A morally sensitive character is more likely to ensure that we apply
a principle with insight and creativity. Without good character, we will often be able to apply
moral principles in only a mechanical manner, largely insensitive to the nuances of the
situation.
o Because there may be more than one approach to ethical reasoning relevant to particular
ethical dilemmas, one of the virtues of practical wisdom consists, in part, of being able to
balance such potentially competing concerns about rights, duties, and consequences. The wise
person is also an individual able to know when the concerns of one approach take precedence
over the concerns of another.
In this context, Aristotle makes an interesting and important point about the difference between
wisdom and mere cleverness. The simply clever person knows the best means to any particular end,
but does not know which ends are worth pursuing. The wise in person not only knows how best to
achieve a particular end, but which ends are worth pursuing as well.

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Activity 5.2
Reflecting on the point raised immediately above in relation to the need for an ethics of action to
be complemented by an ethics of character, it seems to fair to claim that the latter provides a
richer and more finely-grained range of evaluative possibilities.
For example, neither utilitarian nor Kantian approaches to meeting and furthering patients interests
address the affective dimension of medical practice. While the former insists that physicians should
act in ways that maximise benefits and minimise harms to patients, and the latter maintains due
regard for the autonomy of patients, neither provide guidance as to manner in which these acts
should be undertaken.
In contrast, and as mentioned above, the medical virtue of benevolence ensures that physicians to
attend to their patients interests due to a genuine concern for their well-being and the disposition to
act on the basis of such concerns in particular situations.
Think of some concrete situations from clinical settings where actions motivated by the expression of
relevant virtues would lead to better patient outcomes.

6. Principle-based ethics
In the now seven editions of their Principles of Biomedical Ethics, which was first published in 1979,
Beauchamp and Childress identify four ethical principles (or values): respect for autonomy, nonmaleficence, beneficence, and justice as the basis of a pluralistic framework for ethical decisionmaking in biomedicine.
According to Beauchamp and Childress (2013), these principles are drawn from what they refer to as
common morality. By this they mean the set of moral norms shared by all persons, regardless of
where they live or what they do, who are committed to promoting human flourishing by counteracting
conditions that cause the quality of peoples lives to worsen (p. 3). They also identify several more
specific, action-guiding rules derived from the four principles, such as veracity, fidelity, privacy and
confidentially, as well as the practice of informed consent, all of which are said to be broadly accepted
by most religious, cultural and intellectual traditions.

6.1 Respect for autonomy


The term autonomy carries the literal meaning of self-rule, and was used in its original rendering by
the ancient Greeks to refer to Greek city-states that made their own laws. For individuals, autonomy
means to be able to lay down the law for oneself, or to be self-determining, which has been
interpreted in the following ways:
(a) Autonomy as freedom from coercion. On this view, we act autonomously when we do so
without coercion by others, and our decisions are autonomous when they are not the result of
coercion or deception by others.
(b) Autonomy as following reason. This account maintains that a decision made or action
undertaken in the absence of coercion or deception is not yet autonomous, as we might also
be swayed by internal compulsions such as emotions, whims, impulses, or irrational beliefs. To
decide or act autonomously in this sense is therefore to be guided by reasons that can be
publicly expressed and defended.
(c) Autonomy as following our values. On this view, we decide and act autonomously when we do
so in the absence of coercion and in accordance with what we value. This does not preclude

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deciding and acting out of certain desires and emotions as long as theyre consistent with what
we value, no matter how seemingly irrational those desires and emotions may seem to others.
In accordance with this third interpretation of individual autonomy, Beauchamp and Childress state
the principle of respect for autonomy as follows: To respect autonomous agents is to acknowledge
their right to hold views, to make choices, and to take actions based on their personal values and
beliefs (2013, p. 103).

Activity 6.1
(a) Read again the three interpretation of the concept of autonomy provided above, and then list
some of the advantages and disadvantages of each of them in the context of clinical care. For
example, is freedom from coercion enough when a patient is considering whether to undergo
major surgery? How can we be sure that a patients decision is rational and so not swayed by
internal compulsions such as fear? Should all treatment decisions made by patients that are
consistent with what they value be respected if those values seem irrational and potentially
harmful (e.g., someone who genuinely believes the world is coming to an end in 6 weeks and
so refuses treatment for an infectious disease).
(b) On what basis might we distinguish between justified and unjustified restrictions of a patients
autonomy? For example, should physicians acquiesce to a patients autonomous demand for a
particular treatment even though the treatment is not regarded as being in best medical
interests of the patient?

6.2 Non-maleficence & beneficence


Non-maleficence literally means not doing bad, and so the principle of non-maleficence conveys an
obligation to do no harm. On some ethical views, the duty to avoid harming anyone takes priority
over the duty to do good. This view is expressed in the Latin saying that medical ethics texts are fond
of quoting: primum non nocere first, do no harm. This view is usually held together with the belief
that there is an important moral distinction between what one brings about as a result of an act, and
what one brings about as the result of an omission. For example, those who accept this distinction
might think that it would be right to withhold antibiotics from a very elderly patient with dementia who
develops pneumonia, knowing that this will lead to the patients death, but they would reject the idea
that one could take active steps to hasten the death of the same patient.
Beneficence (from the Latin words bene meaning well or good and facio meaning to do) is broadly
understood as actions that are intended to benefit or promote the good of another person. It is distinct
from benevolence, which means wanting or desiring good, as to be benevolent is to act from good
motives (for example, love or compassion), whereas to be beneficent is simply to do certain acts (like
helping others), whatever motive one may have. This distinction is significant because it is difficult to
say that everyone has a duty to be motivated by love or compassion for others (what happens if
someone just cannot feel the requisite emotions), whereas it is possible to say that everyone has a
duty to do certain actions, irrespective of what they may feel about it at the time.
The principle of beneficence therefore conveys an obligation to act for the benefit of others, which has
been interpreted as a duty to maximise possible benefits and minimise possible harms.

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Activity 6.2
We are all subject to the general duty of beneficence when we are in a position to produce great
benefit (or prevent great harm) to someone else at comparatively little cost to ourselves: for
example, stopping a child from chasing a ball onto a busy road.
Physicians and other health professionals have more specific and stringent duties of beneficence
due to their professional roles and training. For example, a physician would be expected to assist
a fellow passenger on a flight, or come to the aid of someone who collapses on a busy street.
How demanding do you think this duty of beneficence should be for physicians? For example,
should physicians risk their own lives to save others during an infectious disease outbreak?

6.3 Justice
Justice is commonly associated with notions of fairness and equity in the distribution of the things
people need and want (lets call them resources), or whats referred to more specifically as distributive
justice (not to be confused with retributive justice, or fairness in punishment). Unlike the principles of
autonomy, non-maleficence, and beneficence, which focus on how we should treat individuals per se,
the principle of justice appeals to the treatment of individuals in relation to others in their broader
social context.
For example, if there is a scarcity of beds in an intensive care unit (ICU), the former three principles
provide little guidance for how to choose which patients should be admitted. In contrast, theories of
distributive justice take as their starting point that resource are often limited or scarce, which directs
moral attention to the question of who should receive what and how much. In the example of scarce
ICU beds, such a decision might be made on the basis of the severity of the patients conditions, or
their chance of survival, though not on the basis of social factors such as ethnicity, religion, wealth, or
sexuality, as these betray a lack of impartiality which is one of the defining characteristics of moral
judgements.
There are several ways in which the just distribution of scarce resources has been cast, each of which
stipulates a property intended to guide considerations into what justice entails:
o
o
o
o
o

To each person an equal share;


To each person according to individual need;
To each person according to individual effort;
To each person according to societal contribution; or
To each person according to merit.

The most influential theory of distributive justice in recent decades was developed by John Rawls. His
account of justice as fairness is explained in terms of a hypothetical scenario in which rational, selfinterested individuals are asked to choose between principles of justice without knowing what their
position in a society governed by these principles will be. Behind this so-called veil of ignorance,
there is no knowledge of the social position, race, sex, state of health, wealth or other factors into
which they will be born. Rawls argues that rational agents in this scenario would choose to maximise
basic liberties, but would distribute primary goods - the basic things that people need to live a decent
life in such a way as to raise to the highest possible level those in society whose natural assets and
disadvantages would otherwise leave them worse off than others.

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Activity 6.3
Consider the following case:
Barry is a 32 year-old man with meningitis who is brought into the emergency department
a busy metropolitan hospital. He is unconscious with an extremely low blood pressure and
evidence of renal failure. His condition is grave and without intensive care support he is
almost certain to die, though with intensive care support he may make a full recovery.
Until this illness he has been fit and well. The Intensive Care Unit (ICU) in the hospital is
full, with some patients critically ill and some in a relatively stable condition but for who
optimum care would still require the facilities of an ICU. There is evidence that moving a
patient from an ICU early increases their chances of complications and may increase
mortality. There is an available bed in an ICU in another hospital which is 30 kilometres
miles away. The intensive care consultant on call must decide if Barry should be moved to
the other hospital or if a patient already in ICU should be transferred to allow Barry to be
admitted.
Given that the principle of justice requires the fair distribution of scarce medical resources, what
further criteria would you use to resolve this dilemma?

6.4 How the four principles work together


Together these principles reflect the relevance of consequentialist considerations in ethics
(beneficence and non-maleficence), but also hold that such considerations should be consistent with
a set of individual rights that limit or constrain consequentialist reasoning (respect for autonomy and
justice). Rights therefore act as side constraints that safeguard the interests, or liberties, of individuals
by protecting them against trade-offs for the greater general good.
These principles are also taken to be prima facie binding: that is, they are binding or obligatory other
things being equal, which means unless overridden by other principles or duties. Because no one
principle has precedence over the others, the particular context in which an ethical judgement needs
to be made often determines which principle holds sway, though this may remain indeterminate in
difficult cases.
Take as an example a number of actual cases of Jehovahs Witnesses who died from injuries
sustained in serious car accidents after refusing a blood transfusion on religious grounds. While the
principle of respect for autonomy requires us to accept the right of individuals to refuse treatment, the
principle of beneficence obliges us to act for the benefit of others and so may justify ignoring this right
in favour of saving a life.
More generally, ethical principles are indeterminate in at least the following respects:
o It is often unclear which principle/s a particular case falls under;
o A single principle may point in two different directions in the same situation; and
o There may be real or apparent conflicts among principles.
This indeterminacy can be reduced if not eliminated by specifying and/or balancing principles.
Specification is a process of providing principles with specific action-guiding content. For example,
without further specification the principle of non-maleficence (do no harm) is too abstract to help in
thinking through problems such as whether physicians may justifiably hasten the death of patients.
The general principle or norm has to be specified for this particular content.
Specification is accomplished by narrowing the scope of the principle by stipulating where, when,
why, how, by what means, to whom, or by whom the action is to be done or avoided. For example,
the principle that we are obliged to respect the autonomy of persons cannot, unless specified, handle

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complicated problems of what to disclose or demand in clinical medicine and research involving
human subjects.
One specification of respect for the autonomy of persons is respect the autonomy of competent
patients when they become incompetent by following their advance directives. This will work in some
context but not in others, thus requiring additional specification which can continue indefinitely as long
a transparent connection is maintained with the initial principle that gives it moral legitimacy.
It is simply part of the moral life that different persons and groups will offer different (sometimes
conflicting) specifications, potentially creating multiple particular moralities. On any problematic issue
(such as abortion, euthanasia, or health inequalities) competing specifications are likely to be offered
by reasonable and fair-minded parties. As a result, we cannot hold people to a higher standard than
to make judgements conscientiously in light of the relevant basic and specified principles while
attending to the evidence.
Where specification addresses the meaning, range, and scope of principles, the balancing of
principles is concerned with how much weight different principles should have in relation to each other
if they come into conflict. For example, it is commonly assumed that an act is right insofar as it is
truthful, or wrong insofar as it is a lie. However, a particular act in particular circumstances may have
features that express some principles while contravening others, such as when a truthful act may also
be unjust or cause harm.
Here balancing requires determining whether one principle or the other is weightier or stronger, which
is a judgement that cannot be made on the basis of prior, abstract formulations, and so is reliant to
some extent on moral intuitions.
In part to reduce (but not eliminate) the role of intuition in such judgements, several conditions have
been suggested:
o Better reasons can be offered to act on the over-riding norm than on the infringed norm.
o The moral objective justifying the infringement must have a realistic prospect of achievement.
o The infringement is necessary in that there is no ethically preferable alternative.
Ethical dilemmas such as abortion and euthanasia highlight the potential for moral disagreements in
pluralistic approaches to ethical decision-making due to the absence of a single principle (such as the
utility of maximising happiness and minimising suffering) which could decide between competing
principles or values. But given the limitations of all moral theories, this may be as much a reflection of
the messiness of moral life than an indication of the inadequacies of such approaches.

Activity 6.4
Consider the following case:
A 32 year-old woman (well call her Joan) with advanced Cystic Fibrosis lung disease, a
history of drug abuse, suspected possible psychiatric issues, and a complex and difficult
relationships with her parents expresses a very strong desire to become pregnant but will
require IVF treatment. Women with Cystic Fibrosis can and have had successful
pregnancies at all levels of lung function, although the risks to the mothers health and the
viability of the pregnancy increase with falling health status, particularly lung function.
Joans lung function is currently around 45%, and although reasonably stable it is unlikely
to improve significantly.
Identify the relevant ethical principles, and then go through a process of specifying and balancing
these (as discussed above) in order to decide and justify whether or not you would recommend
IVF treatment for Joan.

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7. Ethics and the law


Healthcare professionals are expected to adhere to legislative provisions and case law relevant to
their profession, such as the Health Practitioner Regulation National Law (Victoria) Act 2009, as well
as the code of ethics or code of professional conduct of their professional association such as the
Australian Medical Association (AMA). These codes commonly state in their opening paragraphs that
the law takes precedence over their own provisions, and in our everyday lives we tend to be more
conscious of what the law requires of us than our ethical obligations, if for no other reason than the
penalties we face for breaking laws. Nonetheless, the reach of our ethical obligations into most if not
all aspects of our lives means that they are often more fundamental and broad-ranging than legal
requirements, and so it is worth briefly examining the relationship between ethics and law.
Firstly, there are good reasons why acts we might consider immoral should not also be illegal. For
example, even if someone regards third trimester abortions as immoral, they might also believe that it
should not be illegal for the following reasons:
(a) Any such law might do more harm than good if it forces desperate or determined women
seeking late-term abortions into unsafe backyard operations;
(b) Behaviour that some regard as immoral, such as abortion or euthanasia, might be considered
an inherently private affair that the state has no legitimate business intervening in;
(c) Any such law might be too difficult to enforce, and so lead to widespread non-compliance which
could breed an unhealthy disregard for other laws; and
(d) In pluralistic societies with people from many different cultural backgrounds, there are good
reasons for valuing toleration rather than passing laws that prohibit practices that a substantial
minority might not regard as immoral.
None of this is to say that the morality of a particular practice is entirely irrelevant to the question of
whether it should be legally regulated, but that there is an important distinction between the moral
justification of a practice (such as abortion) and the legal justification for intervening in it.
Secondly, there is no clear agreement on what the relationship between ethics and law is, or at least
what it should be, though two broad ways of understanding this relationship have emerged:
Legal moralism claims that laws can justifiably enforce at least some moral standards, even if no one
is harmed by breaching them. Strong versions of this position maintain that laws should enforce all
moral values, though more moderate versions limit their claims to immoralities that would potentially
undermine societys shared moral fabric. For example, in the late 1950s Lord Devlin advocated
against the decriminalisation of homosexual acts between consenting adults in the UK, claiming that it
would threaten English societys shared moral values.
Even though Devlins concern with the moral fabric of society may now seem somewhat quaint given
the emphasis on individual liberties and tolerance in contemporary liberal, multicultural societies such
as Australia, the natural law position provides a more enduring alternative for those keen on
maintaining the idea that at least some moral standards should serve as the basis for laws.
Recall from the section above on rights-based ethical theories that natural law approaches tend to
claim that universal moral standards can be derived from an analysis of human nature; that is, from
an analysis of what constitutes the good in human lives. Human rights claims are often explained
and justified on this basis, as are actions judged to be inhuman or unnaturally cruel or a crime
against humanity.
In contrast to the natural law approach, legal positivism claims that laws are morally neutral
instruments for achieving socially valued ends that derive their validity from being issued by legitimate
authorities such as democratically elected governments. Legal positivists think of laws in much the
same way that we tend to regard by-laws made by local councils; that is, as sets of rules intended to
help people live together harmoniously, but with no intrinsic moral content. For example, a rule

21

prohibiting ballgames in a small park might enable it to be best utilised by the community in general,
but there is nothing intrinsically immoral about playing ballgames in small parks.
This understanding of the basis of laws is consistent with the reasons mentioned above for why we
might not want to pass laws prohibiting practices we regard as immoral. It also reminds us that many
laws have little to do with moral concerns, such as those governing the registration of healthcare
professionals, and has the virtue of explaining why citizens with divergent moral commitments should
accept the validity of laws.
One common criticism of legal positivism from natural law theorists is that there is no basis upon
which to consider laws as unjust and so defective even if they, for example, contravene fundamental
human rights.

Activity 7
(a) Come up with at least 5 examples each of (a) laws which enforce moral standards, and (b)
moral standards which are not enforced by laws. Are there common elements in each of the
two sets of examples that might explain they either have or havent been reflected in law?
(b) To what extent does the immorality of a law cast doubt on its justifiability and its claim to our
allegiance?

The next topic to be covered in your medical ethics training is Ethical Issues in Doctor-Patient
Relationships, which considers key features of the therapeutical relationship between physicians and
their patients. These include medical paternalism (which is when medical practitioners make
treatment decisions on their patients behalf, and/or withhold or disclose information to patients about
their diagnosis, prognosis, and treatment options as they saw fit), patient consent, and privacy and
confidentiality.

22

References
Beauchamp, TL & Childress, JF 2009, Principles of Biomedical Ethics, 6th edn, Oxford University
Press, New York.
Beecher, HK 1971, The New Definition of Death, Some Opposing Viewpoints, International Journal
of Clinical Pharmacology, vol. 5, no. 2, pp. 120-124.
Bentham, J 1961 [1789], An Introduction to the Principles of Morals and Legislation, Hafner, New York.
Bolsin, S, Faunce, T & Oakley, J 2005, Practical Virtue Ethics: Healthcare whistleblowing and
portable digital technology, Journal of Medical Ethics, vol. 31, no. 10, pp. 612-618.
Goldie, J, Schwartz, L, McConnachie, A & Morrison, J 2003, Students attitudes and potential
behaviour with regard to whistleblowing as they pass through a modern medical curriculum,
Medical Education, vol. 37, no. 4, pp. 368375.
Hafferty, FW & Franks, R 1994, The Hidden Curriculum, Ethics Teaching, and the Structure of
Medical Education, Academic Medicine, vol. 69, no. 1, pp. 861-871.
Kant, I 1959 [1759], Foundations of the Metaphysics of Morals (L.W. Beck, trans.), Bobbs-Merrill,
Indianapolis, IN.
Macklin, Ruth 1998, Ethical Relativism in a Multicultural Society, Kennedy Institute of Ethics Journal,
vol. 8, no. 1, pp. 1-22.
Mazur, TC 1993, Lying, viewed 30 November 2014, http://www.scu.edu/ethics/publications/iie/v6n1/
lying.html
Mill, JS 1998 [1861], Utilitarianism, R Crisp (ed.), Oxford University Press, Oxford.
ONeill, O 1986, Faces of Hunger: An Essay on Poverty, Justice and Hunger, Allen & Unwin, London.

23

MED 1011 Ethical Issues in Doctor-Patient Relationships

Objectives
At the end of this tutorial you will be expected to:
o Have a deeper understanding of the clinical relationship and the historical role of medical
paternalism.
o Understand what is meant by consent and some of its ethical complexities.
o Have an understanding of the ethical obligations that arise from concerns with privacy and
confidentiality in clinical medicine, its complexities, and its limits.

1. Paternalism
Paternalism has a long history in medical practice, and until quite recently (from around the mid1960s or later) it was fairly standard practice for medical practitioners to both make treatment
decisions on their patients behalf, and withhold or disclose information to patients about their
diagnosis, prognosis, and treatment options as they saw fit.
The term paternalism comes from the Latin word pater, meaning father, with the connotation that
to behave paternalistically is to act towards someone as a father would act towards his children; that
is, to act in their best interests when they are unable to do so for themselves.
In broad terms, paternalism has been defined as any restriction of, or interference with, an individuals
will or desire, motivated or presented as justified by considerations for that persons well-being.
Examples of paternalism outside of clinical contexts include laws requiring the use of seatbelts in cars
or helmets for motorcyclists. More specifically, medical paternalism involves overriding a patients
preferences in their own interests rather than for the sake of others, as is the case with compulsory
treatment orders for individuals with mental illness when there are genuine concerns for their safety
and/or the safety of others.

Activity 1.1
In his seminal work on liberal political thought, On Liberty, John Stuart Mill wrote: Each is the
proper guardian of his own health, whether bodily, or mental and spiritual (first published 1859;
London, Dent, 1960, p. 75).
Was John Stuart Mill right, or should we sometimes override peoples clearly stated preferences if
we strongly believe that we are a better guardian of their health than they are?

1.1 Strong and weak paternalism


The American political and legal philosopher Joel Feinberg drew a useful distinction between strong
and weak paternalism based on the state of mind of the person whose preferences are overridden:
Weak paternalism: Intervention to protect or benefit people who are, or are suspected of
being, somehow defective in their decision-making capacities. (They may be ignorant of
relevant facts, under the influence of alcohol or drugs, in a state of emotional shock, or
mentally ill.)

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Strong paternalism: Intervention to protect or benefit people despite their adequately


informed, voluntary and competent refusal to consent to what we are doing.

Activity 1.2
One of the most exhaustively analyzed and discussed clinical cases [of medical
paternalism] is that of Dax Cowart (originally named Donald), the young man who was
severely burned in an explosion in 1973 and desperately sought for many months
thereafter to compel the discontinuation of the excruciatingly painful medical procedures
deemed essential by his physicians to save his life and enable his ultimate rehabilitation.
Dax never received a judicial hearing on the issue of his capacity to refuse treatment,
despite his persistent and concerted efforts. Once released from the hospital, he
unsuccessfully sought to commit suicide, but later graduated from law school and now
practices law in Texas. He legally changed his name from Donald to Dax in order to make
the point that he had become a different person as a result of the ordeal he was forced to
endure and the permanent disabilities (including blindness) that now afflict him. Cowart
continues to insist, through the many speaking engagements that he has been afforded,
that his fundamental rights as a person and a citizen were violated when he was
compelled to receive treatment over his express refusal in the absence of any showing
that he lacked decisional capacity (Rich 2006, p. 90).
(a) Is this a case of weak or strong paternalism? What aspects of the case influenced your
response to this question?
(b) Do you believe the outcome of Dax Cowarts enforced treatment justifies this example of
medical paternalism? Which ethical principles guided your response to this question?

1.2 Justifying paternalism


To label an action or practice as paternalistic does not, in itself, indicate that the action or practice is
ethically questionable, especially as many clinicians and bioethicists believe that medical paternalism
is justified in some cases, even if they differ widely on when and why. So when is medical paternalism
justifiable?
Justifications of weak paternalism usually maintain that in some way the patient has consented, will
consent, or would consent to the paternalistic intervention, and so are based on the claim that it is not
really paternalism because what is done to the people involved is not contrary to what they really
want, or would want, if certain conditions could be satisfied.
Justifications of strong paternalism are grounded in the ways in which the intervention promotes or
protects the persons interests. For example, requiring people to wear seat belts when travelling in
cars is commonly suggested as justified by the significant reduction in deaths and injuries that such
laws have produced, especially when compared with the minor inconvenience of having to wear a
seat belt. This kind of justification appeals to the principle of beneficence, and the claim that it can
override the principle of autonomy when the good to be gained is significant and the infringement on
autonomy only minor. It can also be framed in consequentialist terms as a means of bringing about
the best possible outcome.

1.3 Objections to paternalism


Objections to paternalism typically draw upon one or more of the following claims:

25

(i)

A factual claim: As a general rule, though not in all cases, autonomous people are more
competent judges of what is in their own best interests than anyone else could be.

(ii)

A conceptual claim: Each person necessarily promotes his or her good better than any other
person could for him or her (even though others may sometimes have more insight into his or
her good), because my activity is only of value if I do it because I value it.

(iii) A moral claim: Liberty is such an important value that no other benefit could justify overriding
it, and so even if people sometimes act in ways that are contrary to their own interests, they
must be free to make their own mistakes.

Activity 1.3
Reflect on your response to Activity 1.2(b). If you answered that the enforced treatment of Dax
Cowart was unjustified, which of the three objections above (or combination thereof) best
captures why? If you answered that the enforced treatment of Dax Cowart was justified, do any of
the three objections above (or combination thereof) give you cause to reconsider your original
response?

1.4 Treatment decisions


Throughout the long history of medical paternalism, the principles or values of non-maleficence and
beneficence were the mainstay of traditional medical ethics, providing moral legitimacy for the
unchallenged prerogative of physicians to determine what constitutes a benefit or a harm to patients.
As Rich (2006) has pointed out, though, the presumption that physicians were best placed to make
such judgements was valid only insofar as the benefits and harms considered were clinically relevant:
A central problem with the dual principles of beneficence and non-maleficence in traditional
medical ethics is the one-dimensional way in which benefit and harm have been
conceptualized. Benefit is characterized solely and exclusively as the discovery and reversal
or amelioration of any disease process that threatens to shorten the life or limit the functional
capacity of the patient. Harm is characterized as anything that impedes or compromises the
efficacy of those diagnostic or therapeutic measures. By rigidly constraining benefit and harm
in this one-dimensional, disease-focused paradigm, the authority of the physician to be the
sole arbiter of beneficence and maleficence may have appeared, from the perspective of the
medical profession, unassailable (p. 98).
This perspective was challenged by the emergence of bioethics in the late 1960s, which enlarged the
scope of traditional medical ethics to include the principle of respect for patient autonomy (and a
principle of justice). By opening a space in clinical care for the values and preferences of patients, the
normative reach of the benefits and harms that could be considered in treatment decisions pushed
beyond the limits of physicians clinical expertise.
Decisions about what form of treatment to undergo, judgments about how the body will look
to others after various forms of surgery, whether to spend one's last days in a hospital or at
home--these are not technical, medical judgments. To suppose that these are matters of
expertise, decisions to be taken by experts, represents a denial of autonomy (Dworkin 1988,
p. 118).
Among the most discussed cases in contemporary medicine of the tension between paternalism and
patient autonomy are the refusals of Jehovahs Witnesses (JWs) to accept blood transfusions, with a
steady flles in medical journals documenting cases of JWs with severe anemia or undergoing major
surgery refusing the administration of blood products.

26

JWs believe that passages in the Old Testament prohibit the acceptance of whole blood and blood
components such as red blood cells, white blood cells, plasma, and platelets, as well as the pre- and
intra-operative storage of blood for later autologous transfusions. Tension between JWs and
physicians arise when the former refuse blood products on the basis of their genuinely held religious
values, and the latter insist that the patients interests are best served by accepting a transfusion.
Even though there is clear legal recognition that autonomous patients have the right to refuse medical
treatment, many physicians continue to find this difficult to accept.

Activity 1.4
1.

At the hospital where I work we have a procedure in place just for JWs. We have a stack
of court orders waiting. When the patient loses consciousness a doctor fills out a form
declaring them no longer capable of making their own decisions, someone fills in the
name and date on the court order and takes it to the judge wakes him up if necessary,
he signs, we give the transfusion. If parents are refusing treatment for a minor, we call the
police and they are arrested for criminal neglect of a minor. If the patient lives, we drop
the charges.
Sometimes, of course, this all takes too long and we lose them. But we try. Our most
recent case involved a mother 22 years old who had just given birth to twins. She had
bled so much she was in real danger of dying, and she knew it.
We saved her. I dont know if she is glad, but we are (Reacting to Jehovahs Witnesses
refusal to accept blood transfusions 2007, para. 2).

(a) How would you characterise this approach to managing JWs refusal to accept blood
products in terms of the tension between medical paternalism and patient autonomy?
(b) It is common for courts to order transfusions for the children of JW parents on the grounds
that parental autonomy has limits and children should not be harmed by their parents values
and beliefs. Do you think that such circumstances justify medical paternalism?
2. Consider the following case:
You are a doctor attending Mark, a 45 year-old patient who refuses permission for an
operation to amputate a leg that became gangrenous as a result of an accident while
hiking in a remote region. Mark appears in every way rational and emotionally stable, is
not suffering from delusions, and does not have any religious objections to amputations.
You explain to him that without the amputation he will almost certainly die. You also tell
him that many people live excellent lives with only one leg. You even bring in one of your
ex-patients, who strides up and down the room demonstrating how well he can walk with
his artificial limb. Mark accepts your verdict that only amputation can save his life, and
acknowledges that many people are happy with their lives after an amputation, but he
says, on several occasions, that he prefers to die than to live with only one leg.
Several days pass. Marks condition gradually deteriorates, and he becomes delirious,
drifting in and out of consciousness. You expect him to die in a matter of days. As long as
he was decisionally capable, he persisted in refusing permission for the amputation, but
now he is no longer decisionally capable. You think that, with an amputation, you may still
be able to save him.
What are the differences, if any, between this case and the previous one involving JWs?

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1.5 Truth-telling
As with treatment decisions, the traditional prerogative of physicians to withhold or disclose
information to patients about their diagnosis, prognosis, and treatment options was commonly claimed
to be justified by the presumption that patients were neither intellectually nor emotionally constituted
so as to be able deal rationally and maturely with such disclosures (Rich, 2006, p. 99). The following
passages from three historically significant medical texts are representative of the paternalistic
strategies of deception, evasion, and dissembling thought to promote patient well-being:
Perform your medical duties calmly and adroitly, concealing most things from the patient while
you are attending to him. Give necessary orders with cheerfulness and sincerity, turning his
attention away from what is being done to him revealing nothing of the patient's future or
present condition (Hippocates cited in Jones 1923, p. 297).
The life of the sick person can be shortened not only by the acts, but also by the words of the
physician. It is, therefore, a sacred duty to guard himself carefully in his respect, and to avoid
all things which have a tendency to discourage the patient and depress his spirits (American
Medical Association (1848) Code of Medical Ethics of the American Medical Association
(Adopted May 1847), p. 9).
Your patient has no more right to all of the truth you know than he has to all the medicine
in your saddlebags ... he should get only as much as is good for him (Holmes 1891, p. 388).
These and other similar strategies underline a significant yet rarely noted disparity between medicine
and other professions in which candour is an essential feature of fiduciary relationships. In
contemporary medicine the practice of withholding information from patients when the probable
effects of telling the truth are likely to be more harmful than beneficial is referred to as therapeutic
privilege. While there is evidence that psychological distress may be a harm to some patients, there
is also evidence that truth-telling is often beneficial:
What evidence exists also tends to suggest that information disclosure may actually increase
patients abilities to cope, their pain control and their satisfaction and compliance with care,
and that informing patients truthfully about a life-threatening disease does not result in a
greater incidence of anxiety, despair, sadness, depression, insomnia or fear (Kerridge, Lowe
& Stewart 2013, pp. 278).

Activity 1.5
Many health-care workers are concerned that the release of distressing information may
cause severe mental anguish and even physical illness for some patients. For example, it
is often questioned whether patients should be told the truth if members of their family
have been killed in a car accident and they themselves are unstable. It is feared that this
information might cause such patients to give up hope or die. It has been suggested that
in these circumstances health workers may be exempted from the normal duty of ensuring
veracity (Kerridge, Lowe & Stewart 2013, pp. 277-278).
Are such concerns an unfortunate remnant of traditional medical ethics, or an example of
justifiable paternalism in contemporary medical practice?

The therapeutic privilege is also referred to as the therapeutic exception, a term intended to convey
that withholding information from patients should be an exception to the general rule that disclosing
relevant information demonstrates respect for patient autonomy, and so should not be employed

28

simply because a physician is concerned that disclosure could lead to the refusal of potentially
beneficial treatment.
Nonetheless, respecting patient autonomy when disclosing information also requires an awareness
that the way patients exercise their autonomy is often influenced by factors such as age, gender, level
of education, religious convictions and cultural differences:
In pluralistic societies, health-care professionals and patients may not share assumptions
about appropriate disclosure of information. In many cultures it is seen as important to know
that one is dying in advance so that one can prepare for this eventuality both materially and
spiritually. However, in other cultures it is traditional that patients are not told about some
diagnoses, and that responsibility for healthcare decision-making is delegated to other family
members. But preferences for information disclosures varies not only between cultures but
between individuals, so health workers should not make assumptions about individuals from
particular cultures (Kerridge, Lowe & Stewart 2013, p. 281).
This is an important consideration that will also be raised in the section on consent.

Activity 1.6
The following passage describes an interaction between a New Zealand physician, Rex, who
worked for a number of years in the Marshall Islands and a patient he had diagnosed with
advanced cancer of the lung. Even though Rex felt he had been careful and considerate when
disclosing the diagnosis to the patient, he was unaware of the cultural sensitivities with
disclosures of this kind:
The man responded in a stoical manner that is typical of people of the Pacific. They shook
hands and on leaving the bedside, Rex felt their relationship was good and he had
handled the situation well. The next morning however he was confronted in the corridor by
four close relatives who demanded to know why they had not been informed of his
serious illness instead of the patient. Rex explained to them that this was the mans own
personal information to do with whatever he wished. The relatives did not agree they
were adamant that he should never have been told by anyone. When Rex asked whether
their relative would ever learn the truth they said Yes! We would have taken him home
and loved and cared for him so much that he would have known that he was dying
(Hunton 2001 cited in Kerridge, Lowe & Stewart 2013, p. 282).
How would you handle a similar scenario given the need to both respect both patient autonomy
and cultural sensitivities?

2. Consent
Most junior doctors are aware of the legal and ethical recommendations that the person
carrying out the procedure, such as the surgeon, should be the one to take consent, and in
their absence it should be someone who can perform that procedure themselves. However,
today, as on most days, an irate theatre nurse phones the ward demanding to speak to a
doctor. She says that the anaesthetist and the surgeon need the patient in the operating
theatre in 30 min and cannot do anything without a signed consent form. The junior doctor
knows that this is a planned operation, so the consent form could have been completed at an
outpatient clinic or on the ward. After attempting to contact the consultant and registrar and
hearing answer-phone messages both times, he decides that unless he lls in the consent
form, the patient will miss their operation entirely. He quickly searches for the condition and

29

the proposed operation on the internet and tries to ascertain the most common and most
serious risks of the procedure.
The junior doctor goes through the form carefully with the patient, explaining the benets and
possible complications of the surgery. He hopes that his lack of rst-hand experience of the
procedure may be offset by giving the patient time to read the form and ask questions, things
that are rarely encouraged if consent forms are completed on a busy ward round.
Unfortunately, the elderly patient is quite deaf, and asks the doctor to repeat some of the
information more slowly and loudly, which he does. She understands the treatment that is
being proposed and the principal benets and risks of the surgery, including the
consequences of not having the procedure, and the doctor is satised that she has the
capacity to make a decision. The patient says she did not realise what the surgery involved,
nor did she appreciate the recovery time, and she begins to ask a question when her family
interrupt her. They say to the doctor Do whatever you think is best, she wont understand
anyway and instruct their relative to Just sign the form. The doctors are busy. The doctor
knows that consent should be voluntary and free from coercion and that it would be preferable
to speak to the patient on her own, without the intrusion of her family. The porters have
arrived to collect the patient, who quickly signs the form, and tells the doctor and nurse that
she will go ahead as she would not like to waste anyones time, or upset the GP who
referred her, or make her family angry. When the doctor follows the bed down the ward still
explaining to her that it is her choice and no-one will be angry, she says she understands and
has made her mind up (Quarini 2010, p. 633-634).

The concept of informed consent was originally developed in the context of consent to medical
experimentation, and was formalised in the Nuremberg Code of 1947 in response to the infamous
human experiments conducted by physicians under the Nazi regime leading up to and during World
War II. Following various influential court decisions in the USA during the 1960s and 1970s, which
clarified patients rights regarding treatment decisions in clinical practice, informed consent requirements
were widely adopted. It is now a key element of patient-centred care, as it both encourages and supports
the active participation of patients in their healthcare, and is of particular importance when the
management of a patients medical issues requires invasive procedures and/or significant risks of harm.
Overturning the long tradition of strong paternalism in Western medicine, the practice of informed
consent allows patients to exercise their capacity for self-determination by making treatment decisions
for themselves, even if these conflict with medical advice. Informed consent is commonly thought to
be justified on the basis of the principle of respect for patient autonomy, although some argue that the
principle of beneficence is an additional (if not preferable) consideration. Much research indicates that
obtaining informed consent from patients is in their best interests. The following quote from Waller
and Repko (2008) offers a brief summary of the results of some of this research:
When patients are effectively informed and can exert knowledgeable control over their own
treatment decisions and therapy processes, [it] enhances recovery, strengthens the immune
system, promotes better pain tolerance, prevents depression, and encourages patient
cooperation and fortitude in treatment, rehabilitation, and preventative procedures (Waller &
Repko 2008, p. 66).
Forewarning patients about the likely effects of procedures therefore seems to be more beneficial
than withholding this information, because:
o Informed patients can prepare themselves better for post-operative effects by having the
chance to work through their likely reactions beforehand.
o Informed patients are less likely to suffer from ill-founded anxiety based on vague beliefs that
something has gone wrong.

30

o Informed patients are able to develop coping strategies, and so feel less helpless (and more in
control).

Activity 2.1
Consider the following scenario:
Once a drug is prescribed or a test ordered, nurses dispense the drug and porters will
collect the person for a scan, often without the patient being aware of what drug they are
being given, or what type of scan they are having or why. The rare, daring patient who
does ask questions on this ward round is usually given brief answers. The man in bed 1
ts into this category, and, as the doctors begin to walk away, still discussing his
hypertension and its possible causes, he asks for an explanation of what they are talking
about and what they have planned. He is told by the consultant that he is being given a
blood pressure pill. That is the extent of the information volunteered--possible side effects
and alternatives are not discussed (Quarini, 2010, p. 633).
Keeping in mind the potential benefits of the active participation of patients in their healthcare
mentioned above, how do you think this particular patient would feel about the standard of care he
is receiving, and how might this be improved?

2.1 Elements of informed consent


Regardless of how the practice is justified, there is general agreement that informed consent has
been obtained if and only if the patient:
o Has the capacity to make a decision.
o Has disclosed to them an adequate level of relevant information.
o Understands that information.
o Decides about their treatment voluntarily.
o Then consents to the treatment.
Informed consent therefore involves an uncoerced agreement to a proposal, with an understanding of
what that proposal entails in relation to what the patient values. Given that voluntariness is standardly
included as aspect of informed consent, medical ethicists sometimes refer to informed and voluntary
consent. Where doctors legal duties regarding consent typically emphasise the importance of
information disclosure to patients, doctors ethical obligations extend further, to helping patients
understand the medical information provided. Also, informed consent is rarely simply an event that
takes place at a particular time, but is often a process or a journey that the patient needs time to
work through.

Activity 2.2
(a) Refer back to the case at the start of this section, and identify which of the abovementioned
elements of the informed consent process were present, and which were not.
(b) What are some of the ethical shortcomings of consenting patients in a formulaic way (that is,
just going through the motions), or as no more than a means of physicians protecting
themselves from legal liability?

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2.2 Does consent need to be informed?


The notion of autonomous decision-making is more fundamental than the concept of informed
consent. We sometimes decide, perfectly autonomously, that we wish to proceed with certain
ventures without having much information about them at all. For example, some of us wish to avoid
spoiler alerts in learning about new films or television programs.
Some patients prefer not to be given details of treatment alternatives and their risks, but ask a doctor
whom they have good reason to trust to use her judgement. Delegating our decision-making
authority to someone else whose judgement we trust can itself be an autonomous decision. So, a
decision made without substantial information about treatment risks and alternatives could still be
autonomous. It depends on how much we really value knowing in these circumstances, and on the
adequacy of our reasons for trusting the other persons advice.
Of course, when it comes to decisions about undergoing a given medical procedure, many people do
value having information about the procedure, its risks, and some alternatives. (Also, in health care
as compared, say, to completing ones tax return the delegation of ones decision to someone else
can sometimes be an expression not of autonomy, but of unthinking compliance, intimidation or
simple submission to authority, and doctors should be alert to such tendencies.)
But even for patients who do wish to be provided with extensive details about likely risks and benefits of
a procedure, the information to be disclosed to and understood by the patient cannot include facts about
what the outcome will actually be for her. Autonomous decision-making does not require that we know in
advance how what we have agreed to will actually turn out for us. At best, the information to be
disclosed and understood will include available information about the risks of the procedure. Informed
consent requires understanding what the risks of a procedure are and having some idea of what it might
be like for various risks to eventuate, but it does not require our knowing which of those risks are
actually going to materialise.

Activity 2.3
What should a doctor do if a patient says they do not want information about a procedure?
A 55 year old post-menopausal woman comes to see you about whether she should take
Hormone Replacement Therapy (HRT). You start to talk about the pros and cons of HRT
but she stops you and says: I dont want to know about all the things that might happen to
me do what you think best and I will go along with that.
Should the doctor do what this woman asks, or should the doctor provide her with information
against her wishes?

2.3 Impediments to informed consent


Many health professionals seem to think that obtaining informed consent is a relatively straightforward
matter of disclosing the necessary information, followed by the agreement of the patient to the
procedure in question. But is this enough? We need to consider a number of possibilities:
o Consent may be manipulated in some way so that it is not freely given.
o Consent may be based on ignorance of significant relevant facts.
o The patient giving consent must have the capacity to do so. This means that patients must
understand what it is they are agreeing to, what other options are available, and what the
implications of their choice are.

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2.3.1 Voluntariness
The first of these possible impediments to informed consent is addressed by ensuring that the patients
consent is voluntary, meaning that there are no undue constraints on the patients freedom of choice. It is
not uncommon for patients to be exposed to emotionally-laden appeals from friends, partners and other
family members, who may seek to influence the patients treatment decisions.
The unequal or dependent relationship between patients and healthcare practitioners can itself be
unintentionally coercive, as patients are often in a vulnerable position due a number of factors, including
their state of health, finding themselves in unfamiliar surroundings, and being intimidated by their lack of
understanding of the treatment options available to them. Patients may also be reluctant to disagree with
their doctors if they fear this may harm the therapeutic relationship.
Moreover, a well-meaning physician may seek to influence a patients decisions from a paternalistic
concern for her or his well-being by framing the information provided in such a way as to make the
recommended treatment seem more attractive than the alternatives.
A considerable body of research has found that peoples ability to assimilate detailed medical information
is affected by a variety of distorting influences. Different ways of presenting the same basic information
about one medical treatment versus another can lead patients to change their preferences about which of
these treatments they wish to have. One well-documented type of influence here is known as the framing
effect. That is, when presented with a comparison between two treatment options couched in terms of
possible losses such as the probability of dying a significant number of patients are inclined to take a
risk which they would not take when presented with the comparison in terms of possible gains such as
the probability of survival. In other words, a substantial number of people tend to be risk-taking when
presented with two options framed in terms of possible losses, but risk-averse when the options are
framed in terms of possible gains.
One of the pioneering empirical studies (McNeil et al. 1982) of this phenomenon presented people with a
comparison between surgery and radiotherapy as treatments for lung cancer. Surgery was correlated
with a substantially lower long-term mortality rate than was radiotherapy (although a small number of
patients die during surgery, and so its immediate mortality rate is a little higher than that for radiotherapy).
More people opted for surgery when it was compared with radiotherapy in terms of the probability of
survival, than when it was compared with radiotherapy in terms of the risk of mortality. To put this another
way, we tend to be more conservative in our attitudes to risk when we are asked to choose between two
options framed as possible gains, whereas we tend to be more adventurous in our attitudes to risk when
asked to choose between the identical two options framed as possible losses.
Because of the many ways in which a patient may be coerced or manipulated deliberately or not
when making treatment decisions, Beauchamp (2010) has noted that the central question is not
whether we are entirely free of [coercive and] manipulative influences, but whether we are sufficiently
free to remain autonomousfree to perform our own actionsas opposed to controlled by the
actions of another (p. 71).

Activity 2.4
(a) As with Activity 7, refer back to the case at the start of this section. Do you regard the
informed consent process in this case as voluntary? Explain why.
(b) Is it ethically acceptable for doctors to use the framing effects discussed above to influence
patients treatment decisions?
(c)

Which of the two framing techniques discussed above in terms of possible gains or in terms of
possible losses would you have predicted would lead to more patients favouring surgery?

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2.3.2 Disclosure
Given that the complete disclosure of all possibly relevant information would be impractical even if it
was possible, the second impediment is best addressed by structuring the disclosure as a
conversation which aims to reach a shared understanding of the following factors:
o The nature of the procedure (for example, whether it is a test or treatment, whether it is
invasive, and how long it will take to perform).
o The risks of the procedure (what kind of risks are involved, their seriousness, their
probability of occurring, and when they might happen).
o The alternatives to the proposed procedure, including the option of no treatment (includes
information on the options nature, risks, and benefits).
o The expected benefits of the proposed treatment, including their extent and their likelihood
of being achieved.
o The purpose of seeking consent, along with its implications.
Three standards commonly used in legal contexts have been applied in discussions on how explicit
and specific consent disclosures should be:
o The professional practice standard directs physicians and other healthcare workers to disclose
the information conventionally required of competent professionals in similar circumstances.
This approach has been criticised for the often unwarranted assumption that such conventions
are adequate, that researchers are best positioned to judge what information is relevant to
subjects, and for failing to promote decisional autonomy (Beauchamp, 2010, p. 67).
o The reasonable person standard requires researchers to disclose information that a reasonable
person in the subjects circumstances would find relevant (or material) and be expected to
understand when making treatment decisions. Apart from assuming a greater consistency than
is probably the case in the kind of information reasonable persons would want disclosed,
especially with regard to risks and benefits, this approach also fails to meet the needs of
individuals whose preferences differ from the majority.
o The subjective or individual standard requires that in addition to the information a reasonable
person might find relevant, disclosures should be tailored to the interests and values of
individual subjects.
The subjective or individual approach standard is probably the most demanding of the three for both
doctors and patients, though it is also more likely to meet the information needs of particular individuals
given that assessments of potential benefits and harms are unavoidably value-laden.

Activity 2.5
A patients risks in surgery may vary partly according to which surgeon operates on them. Steve
Clarke and Justin Oakley (2004) have accordingly argued that informed consent requires making
individual surgeon performance information available to patients who regard such as information as
relevant to their decision about surgery.
Does the ethical obligation to help patients make informed and voluntary health care decisions extend
to providing patients with details about a surgeons track record with the procedure in question?

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2.3.3 Decisional capacity


With regard to the third impediment to informed consent mentioned above, while patients are generally
presumed to have capacity to give informed consent to a medical procedure unless there are good
reasons to think otherwise, capacity is not something like brown eyes or long legs that you either have
or not. Capacity is a task-related concept: that is, our capacity varies according to the situation in which
we find ourselves. We may be capable of driving a car but not a motorcycle, or be capable of doing both
or either when sober but not when drunk. Similarly, a patient with dementia might be capable of
choosing between items on a lunch menu but not to choose between treatment options, or may have
lucid periods during which they are capable of deciding in either context. Or more commonly, individuals
of varying capacities might be capable of making informed decisions in familiar matters but fail to
understand the implications of unfamiliar ones.
Nonetheless, the capacity of a patient to consent or refuse treatment options must be assessed, and so
mental status tests are sometimes used, either formally or informally, when this isnt entirely clear. It
remains a matter of debate as to precisely which mental abilities are necessary for the capacity to
consent, but the following list from Elliott (2009) is reasonably representative:
o The patient should have a relatively stable set of goals and values.
o Be capable of understanding the consequences of the decision, including its risks and benefits.
o Be able to reason about the relevant information and communicate a choice.
o Be able to appreciate how the decision will affect them personally.
Patients are commonly judged decisionally incapable when they are very young, temporarily or
permanently mentally impaired as in cases of mental retardation, dementia, psychosis, or alcoholism,
when unconscious or frail and confused. Even when otherwise capable, patients may be unable to give
informed consent when they are overwhelmed with fear or pain when emergency treatment is required, or
to complex medical intervention when simply feeling unwell.
When a patient lacks decisional capacity a paternalistic approach may be justifiable, such as when
the burden of decision-making is delegated to a surrogate (or proxy), who is often a family member.
For such patients, a hierarchy of decision-making standards has evolved.
(i)

When patients have expressed prior wishes about the treatment in question before losing
their capacity to make decisions (through an advance directive, for example), their surrogate
decision-makers should abide by those wishes.
(ii) When such patients have not expressed any such wishes, surrogates should rely on the
substituted judgment standard, according to which decisions are reached according to what
patients would have decided if they were able, based on the patients values, goals and
desires.
(iii) In the event that a patient has never been capable of making decisions for themselves - as in
the case of a young child, for example the surrogate must make a decision based on what
they believe is in the patients best interests (Elliott, 2009).

Activity 2.6
What are some of the shortcomings of using proxy consent? For example, even if patients have
autonomously expressed prior wishes via an advance directive or more informally in conversations
with family members, how likely is it that a patients preferences will not be altered by the
experience of their illness?

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2.4 Criticisms of informed consent


Despite the widespread acceptance of informed consent (and the principle of respect for autonomy) in
medical practice, it has been the subject of sustained criticism in addition to the many reports and
analyses of how poorly it is often implemented. The following quote from Kerridge, Lowe and Stewart
(2013) provides a brief account of two of the most common criticisms of informed consent:
Consent requirements in health care are perhaps the most visible representation of the sociocultural emphasis given to respect for autonomy. The pre-eminent role of autonomy in
bioethics and health law has, however, come under sustained attack. It has been suggested,
for example, that health-care decisions should depend less on respecting autonomy and more
on providing care and compassion; [this is] because the focus on autonomy and individualism
diminishes the importance of human relationships, caring and interdependence, and fails to
acknowledge how vulnerable people may become in the setting of serious illness. It has also
been noted that the choices that a person makes are only comprehensible within their social,
cultural and institutional context, and the emphasis on autonomy is largely a cultural
construction, as non-Western cultures tend not to place such value on the rights of
individuals. Neither of these criticisms require that the commitment to consent be abandoned
rather, they suggest that consent in medicine needs to be critically examined within its
social, cultural and relational context (p. 335).
As an example of how different cultural contexts alter (or at least should alter) the way informed consent
is obtained, McGrath and Phillips (2008) reported on one aspect of a study of how Indigenous and
biomedical perspectives on informed consent differ:
a fundamental premise of the doctrine of informed consent is that of individual autonomy
which, while privileged as a core value of non-Indigenous Australian cultures, is displaced in
Indigenous cultures by the honouring of the family unit and community group, rather than the
individual, as being at the core of important decision-making processes relating to the person (p.
22).
Even though there are cultural differences between and even within Indigenous language groups, whats
common is that it is not the individual patient but the extended family and sometimes community elders
who must be consulted when making treatment decisions:
As one participant stated: Quite often theres a conflict between the two cultures. A patient might
really want to have that operation, told the doctor, but first need to go through the cultural
process of consulting with family. Then it comes back that family say youre not to have that
operation. The patient might then go ahead and sign that form if they want to, but they do so at
their own risk of putting their family at risk of payback (p. 24).
Further to these kinds of criticisms, Neil Manson and Onora ONeill (2007) subjected the practice to a
sustained critique in their work, Rethinking Informed Consent in Bioethics, which maintains that
autonomy-based accounts of informed consent misleadingly portray patients as containers into which
information is disclosed. In contrast, they argue that the conclusions patients reach from consent
disclosures vary with the inferences they are able to draw from the terms used (p. 13), which are in
turn shaped by their past experiences, knowledge and expertise. This is explained in terms of the
manner in which all disclosures are necessarily made in the context of implicit assumptions and
agreements (p. 12) which can never be made fully explicit. As a result, Manson and ONeill (2007)
suggest that informed consent is better understood in terms of communication theory, as this better
captures the interactive nature of consent transactions, which in turn rely upon more fundamental ethical
considerations such as trust and beneficence:
informed consent does not and cannot offer freestanding ethical justifications, but rather is
used to waive other, more basic ethical standards [such as trust and beneficence] (which
informed consent requirements invariably presuppose) (p. xi).

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Activity 2.7
(a) Should we rethink informed consent in medical ethics?
(b) Would it be desirable, or realistic, to abandon routine informed consent procedures in health
care?

3. Privacy & Confidentiality


3.1 Privacy
In the most general terms, privacy has been defined as a state in which public access to ones body,
thoughts, actions, decisions, and personal information is, or at least should be, limited or restricted.
The moral significance of privacy is clearly demonstrated in the legal measures taken to protect it,
even at the cost of restricting other key social goods such as freedom of speech, efficient law
enforcement, and free access to information.
In general terms, when we protect peoples privacy in patient care were respecting their right to
prevent unwanted access to their bodies, as well as unauthorised use of their personal information:
o

Bodily privacy: This concerns what is done to ones body, by whom, and in what
circumstances. This kind of privacy is violated when the actions of others affect our bodies in
ways we have not consented to. For example, in some hospitals, medical students have,
without the consent of the patient, practised pelvic examinations on women under anaesthetic
for operations that did not require such procedures (see Activity 3.1 for more on this).

Informational privacy: This concerns the non-disclosure of private information about patients,
which is violated when information about a patient is disclosed to others without the patients
permission, for example, by doctors disclosing personal information about patients while
socialising with other doctors, or through unauthorised access to medical records.

Our interest in privacy has been justified in the following ways:


o

o
o

Individuals have a right to keep what they regard as personal to themselves, which means
having a degree of control over the extent to which we are the subject of physical contact,
observation and discussion by others, including the state.
An individuals body and personal information are commonly understood as forms of personal
property, and so unauthorised use of this information is akin to trespass.
Privacy is also regarded as a necessary condition for the formation and maintenance of
intimate personal relationships of love and friendship, as well as other kinds of relationships
such as those between colleagues, and professionals and clients. This is because we
commonly draw ever-diminishing circles of intimate contact and private information about
ourselves to mark out such relationships.

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Activity 3.1
Even though pelvic examinations are not particularly risky procedures, many women find them
unpleasant due to the associated pain, discomfort and loss of privacy, while some have even been
traumatised by the practice. On the other hand, there is a consequentialist case for medical students
to learn clinical examination skills by practising on current patients for the benefit of future ones. Yet,
consent should be obtained as a way of respecting patient autonomy and privacy. Unfortunately, both
anecdotal evidence and published studies indicate that this doesnt always occur. A survey of
students in one medical school in the UK found that neither written nor oral consent had been
obtained for most of the pelvic examinations they performed on sedated or anaesthetised patients
(Coldicott, Pope, & Roberts 2003).
Comments from the students surveyed suggested that in many cases students felt compelled to
perform pelvic examinations in the absence of consent when directed to do so by consultants:
Three of us were in theatre, the consultant told us to get our gloves on. There was no
chance to refuse or get consent. The consultant was a scary chief. [Second year student]
I have never felt able to refuse a consultant, even though I have really felt very unhappy
about it. [Third year student]
You are expected to obey consultants by the fourth year. You cant refuse, and as doctors
you have to do uncomfortable things, so you just have to start early. [Fourth year student]
You couldnt refuse comfortably. It would be very awkward, and youd be made to feel
inadequate and stupid [Fourth year student]
I was told in the second year that the best way to learn to do PRs [rectal examinations] was
when the patient was under anaesthetic. That way they would never know. [Fourth year
student] (p. 99)
(a) How do you think you would respond in similar circumstances?
(b) What strategies could you apply to meet your ethical obligation to protect patient privacy, but
without alienating the consultant?

3.2 Confidentiality
Confidentiality involves an obligation to respect the privacy of others. Etymologically, the term
confidentiality means with trust, which is why we speak of preserving the confidentiality of certain
information, or of keeping the confidences of those who trust us.
The practice of respecting patients privacy by keeping their personal information confidential has
been part of medical ethics since the Hippocratic Oath (written in the fourth century BCE). The
relevant passage has been translated from the ancient Greek as follows:
What I may see or hear in the course of the treatment or even outside of the treatment in
regard to the life of men, which on no account one must spread abroad, I will keep to
myself, holding such things shameful to be spoken about.
There are a number of reasons why healthcare professionals are believed to have a duty to protect
their patients confidentiality. These include:
(a)

Maintaining patient confidentiality is essential to respecting individual autonomy, as selfdetermination involves (at least in part) controlling the personal information others have

38

about us. Without this, we may be coerced by others, or in some other way prevented from
pursuing what we value.
(b)

There is an implicit promise between healthcare professionals and their patients to maintain
confidentiality, and so breaching confidentiality is wrong because it involves breaking a
promise.

(c)

Assurance of patient confidentiality is necessary for achieving the general medical goals of
effective diagnosis and treatment. It enables patients to seek medical advice and treatment
without risking public knowledge, and so encourages an essential openness in therapeutic
relationships.

In the hospital environment, the duty to maintain patient confidentiality is widely espoused but
frequently breached in practice, most commonly because of the way hospitals are organised: medical
records are easily accessible; patient histories are presented at open meetings and often displayed
on whiteboards; and physicians and other healthcare professionals can be heard discussing patients
in wards, corridors and lifts. Beauchamp and Childress (2009) discuss the case of a patient who
became concerned about the number of people in the hospital with access to his medical records,
and as a result threatened to leave prematurely unless the hospital could guarantee confidentiality:
Upon inquiry, [the physician] discovered that many more people than he had suspected had
legitimate needs and responsibilities to examine the patients chart. When he informed the
patient of the number, approximately seventy-five, he assured the patient that These people
were all involved in providing or supporting his health care services. The patient retorted, I
always believed that medical confidentiality was part of a doctors code of ethics. Perhaps you
should tell me just what you people mean by confidentiality? (as cited in Kerridge, Lowe &
Stewart, 2013, p. 302).

Activity 3.2
The following passage is taken from an article written by a medical student in the UK:
Todays meeting, as usual, involves an informal get-together at the nurses station-- a
work bench with computers usually situated near the entrance to the ward and no more
than a couple of metres away from patients beds. The rst thing that the junior
doctors do is add the details of the new patients to their list, including their presenting
complaints and basic medical history. Next, any updates on patients conditions are
discussed, and problems experienced with difcult patients and relatives are shared.
Many patients, still in their beds, are within earshot of the conversation and others are
walking past on their way to the bathroom. Not only are patients likely to overhear
private information, but the computer screen on which their personal information is
displayed often does not get closed down in the rush to get to the ward round,
remaining on the desktop for passing pharmacists, physiotherapists, medical
students and anyone else to view.
This rst breach of condentiality might be deemed a relatively minor matter, when
viewed in light of the main part of the mornings activities, the ward round. This
involves all the doctors on the team, usually a consultant, registrar, foundation
doctors and often a medical student, seeing each patient on the ward, checking their
progress, and organising management plans such as further investigations,
medication or discharge. There are generally about six beds in each room, the only

39

Activity 3.2 continued


privacy being a curtain that can be pulled around the bed. This set-up presents a
huge problem with maintaining condentiality--the doctors who do remember to pull
the curtains around each bed still do not manage to sound-proof the curtain before
talking to the patient, so the whole room hears the symptoms, likely diagnosis, and
answers to any questions the doctors may ask about bowel habits, alcohol intake, or
sexual history of their ward neighbours. Since the patient knows the answers are
shared with the rest of the room, the honesty and completeness of the answers may
be open to question (Quarini 2010, p. 632).
(a) Identify and list the breaches of confidentiality in this passage.
(b) What strategies could be put in place to address each of these types of breaches to
improve the possibility of maintaining patient confidentiality in hospitals?

3.3 Exceptions to confidentiality


While there are some who argue that medical confidences should never be disclosed under any
circumstances, the more common view is that there are several legitimate exceptions to the duty to
maintain patient confidentiality. In all such cases, there is an unavoidable tension between
professional obligations to respect patient autonomy and privacy by maintaining confidentiality, and a
broader duty of beneficence to assist those in danger of preventable harm.
Health professionals sometimes find themselves in circumstances where breaching patient
confidentiality is the only way to protect another person from great harm and even death. In such
cases, there is a conflict between respect for the autonomy and privacy of the patient, and a
consequentialist concern with preventing avoidable harm to third parties. For example, suppose a
patient diagnosed with HIV is unwilling to disclose this to his or her sexual partner. In such cases,
breaching confidentiality and warning the patients partner of the risk of infection may enable a health
professional to help protect the partner from contracting HIV. Similarly, mental health practitioners are
sometimes faced with clients who confide a genuine intention to seriously harm others. Breaching
confidentiality and informing the relevant parties of the clients intention may protect them from harm.

Activity 3.3
In an article written by Leonard Fleck and Marcia Angell (1991), the two authors offer contrasting
views of a case involving a young Hispanic man, Carlos, who is secretly homosexual, HIV-positive,
and being discharged from hospital after being treated for gunshot wounds. His sister, Consuela,
has agreed to care of his wounds when he returns home, which increases her risk to some extent of
contracting HIV herself. In fear of his family coming to know of his homosexuality, Carlos pleads
with the attending physician not to mention this to his sister.
In response to the question of whether or not the physician should maintain patient confidentiality in
this scenario, Fleck and Angell responded as follows:
No one doubts that becoming HIV-infected represents a serious and irreversible harm. But,
in reality, is that threat imminent enough to justify breaching confidentiality? If we were
talking about two individuals who were going to have sexual intercourse on repeated
occasions, then the imminence condition would be met. But the patients sister will be caring
for his wound for only a week or two, and wound care does not by itself involve any
exchange of bodily fluids ([Fleck] p. 39).

40

Activity 3.3 continued


In this scenario, does Consuela have any claims on the doctor [even though its her brother
who is the doctors patient]? I believe she does, and that her claims are very compelling. They
stem, first, from her right to have information she might consider relevant to her decision to
act as her brothers nurse, and, second, from the health care systems obligation to warn of a
possible risk to her health ([Angell] p. 40).
Which response do you find the most convincing? Explain why.

Breaches of confidentiality are also taken to be justified on paternalistic grounds; that is, in order to
prevent patients from harming themselves. One such example is the legal requirement for doctors in
the Australian state of Victoria to advise the vehicle licensing authority, VicRoads, if one of their
patients has epilepsy. Another is for employers to be advised if it is known that a prospective
employee has a life-threatening genetic condition which is likely to be exacerbated by that employers
work environment.

Activity 3.4
Consider these cases:
o A young man who has recently been appointed as the foreman at a saw mill is diagnosed with
type I diabetes mellitus. He reports that he has experienced severe hypoglycaemic reactions
while working late at night on his own. He is very anxious that his employer is not told about his
illness as he fears that he will lose his job.
o A patient reports that she wonders whether her partner is sexually abusing her 14 year old
daughter.
o The daughter of an elderly man calls to tell you that her father has had a number of driving
accidents lately and that she does not feel that he is safe to continue driving. You raise the issue
with the patient who responds angrily, saying that he intends to continue driving no matter what.
How would you respond in each of these cases? Explain with reference to relevant ethical
considerations.

Another aspect of contemporary medical practice that poses ethical quandaries is the introduction of
pre-symptomatic genetic testing, which has made it possible to obtain information about whether
people are susceptible to certain conditions and diseases.
Some large corporations are already making use of this technology to determine at least some of the
genetic susceptibilities of prospective employees in order to avoid offering positions to people with a
predisposition to certain kinds of conditions and diseases. Occupational health professionals who
perform genetic testing for this reason can save corporations significant amounts of money by
revealing genetic information about individuals that would normally be regarded as confidential.

41

Activity 3.5
Is it ethically acceptable for health professionals, regardless of the circumstances of their employment,
to breach patient confidentiality in such contexts? Justify your response with reference to relevant
ethical considerations.

Powers (2002) has argued that there are ethically significant differences between pre-symptomatic
genetic testing and the HIV and dangerous patient cases discussed above, and that these differences
should prompt caution with leaving it to health professionals to decide when to breach patient
confidentiality in the context of genetic testing. According to Powers (2002),
the patient is not normally the direct cause of potential harm to third parties [but] simply
fail[s] to assist others Thus, most cases of a patients failure to disclose genetic information
to a family member are not quite like the psychiatric or HIV cases, where we can claim that
individuals, through their own behaviour, may have forfeited their privacy rights (p. 375).

Activity 3.6
Should the results of genetic tests be disclosed to relatives who are likely to be affected by the
same genetic disorder? Consider the following case:
Steve knows that his uncle Geoff died at 42 from familial adenomatous polyposis (FAP), a
type of colon cancer. This genetic disorder is characterized by the formation of polyps in
the colon and without intervention virtually all of those with the disorder will have
developed the cancer by the time they are 50-year-old. However, effective treatments are
available if the condition is identified early. Steve knows that there is a chance that he is
also affected by the disorder and wishes to undergo a genetic test to identify whether this
is the case in order to allow early treatment if necessary. A genetic counsellor explains
that if the test reveals that Steve is affected then this implies that his father (Geoffs
brother) is also affected by the genetic disorder. He is advised to discuss this matter with
his father. However, Steves relationship with his father has broken down and he is
adamant that he does not want to tell his father he has been tested or the result of any
such test (Bennett 2007, p. 328).
(a) If Steves genetic test indicates that he has FAP, should this information be disclosed to
Steves father?
(b) Should genetic information be regarded as personal information and so subject to privacy
protections, or is it more properly regarded as a more general resource (like a joint bank
account) that should be made available to all of the patients genetic relations if they wish?
(c) Would making genetic testing services more widely available so that everyone is aware of
them and can make use of them help to resolve this ethical concern?

42

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