Distributing responsibility for decision making in medical ethics

Paul Jewell, Flinders University

Rodney Syme A Good Death: An Argument for Voluntary Euthanasia Melbourne, Melbourne University Press, 2008 (320 pp). ISBN 9-78052285-503-6 (paperback) RRP $32.95.

Paul Komesaroff Experiments in Love and Death: Medicine, Postmodernism, Microethics and the Body Melbourne, Melbourne University Press, 2008, (320 pp). ISBN 9-78052285-567-8 (paperback) RRP $49.99.

It is a cliché that patients are ‘under doctor’s orders’, yet a lawyer will ask a client ‘What are your instructions?’ It is significant that the medical profession does not use the term ‘client’ but insists on ‘patient’, that is, a recipient of decisions rather than the initiator.

Perhaps the relationship between client and lawyer is simpler. Both are clear about its purpose and structure. Clients want acceptable outcomes in the form of favourable verdicts, negotiated settlements, or ways of avoiding legal conflict in the first place. They engage lawyers to act on their behalf within legal and ethical constraints, constraints that are codified and mandated by the wider community. When patients and doctors have clear agreements about outcomes and their respective roles, then ‘Whatever you think best, Doctor’ may be a more prudent approach than analysing terminology and power relationships. On many issues, though, doctors, patients and the wider community do not agree on what constitutes acceptable outcomes, who should decide, and how power, responsibility, obligation and authority should be allocated between the state, the profession and the patient. The issues range from the ownership of medical records to euthanasia, and are the subject of ongoing public and professional debates about medical ethics (Anaf & Jewell 2007).

Is it the primary duty of doctors to save lives? Or is it to alleviate suffering? Is it to attend to the patients’ welfare and health outcomes, or is it to attend to patients’ wishes, respecting and promoting their autonomy? Should doctors’ relationship to patients be seen as intensely personal and private, akin to priests, or should it be impersonal, impartial and publicly regulated, akin to lawyers? It is a matter of grave concern that the medical profession itself is seriously confused and conflicted on these issues, as we can see by comparing two recent books by physicians—Rodney Syme’s A Good Death: An Argument for Voluntary Euthanasia and Paul Komesaroff’s Experiments in Love and Death: Medicine, Postmodernism, Microethics and the Body.

Komesaroff rejects traditional and familiar ethical theories.

Komesaroff is as interested in the minutiæ of the encounters between doctors and patients as he is in the life and death questions. He is concerned about microethics, about patients’ life histories, about meaning and suffering, about the complexities of ethical choices doctors make when, say, choosing exactly what words to use in delivering bad news. He maintains that:

Traditional accounts of medicine do not recognise the multifaceted intricacy and complexity of the clinical process … the encounter between patient and doctor … is highly heterogeneous and contingent … is highly volatile and ambivalent … The clinical dialogue evokes and creates memories, causes and alleviates pain, disassembles and rejoins, dissembles and enjoins promises (p. 124).

Komesaroff is more counsellor than technician, more post-modern and contextual than rational and impartial. He has a strange fascination with what he calls the phenomenon of evil and its manifestation in the lives of his patients. He insists that ‘The doctor’s task is always to assist in giving expression to, and facilitating, understanding of silent voices’ (p. 153). This would surely come as something of a surprise, and justifiably considered an impertinence, by a patient who had dropped in for antibiotics or technical advice on how to manage arthritis.

Bemused patients would be further unsettled by Komesaroff’s rejection of traditional and familiar ethical theories because they do not ‘reflect key issues’ or apply to ‘day-to-day decision making’. He dismisses ‘Aristotelianism, deontology, utilitarianism …’ and ‘modern ethical thought in general’ (pages xvi, xvii, xviii). In this regard he is seriously mistaken. Modern ethical thought and its traditional foundations are directly applicable to medical ethics and microethics. Aristotle would promote the use of rationality and technical competence (Aristotle 1933). Utilitarians would recommend maximising patients’ welfare and deontologists would insist they be respected as self-determining persons (Mill 1984; Hare 1963; Kant 1981). When choosing exactly the right words to use with a patient, whether delivering bad news or recommending a therapeutic intervention, Komesaroff could ask himself ‘What would enable my patient to achieve an outcome which in the patient’s judgement is the best, given the circumstances?’ Unfortunately, Komesaroff is unwilling to either place the responsibility for ethical decision making in the patients’ hands, or to commit himself to any decision-making procedure or ethical foundation. He devotes two chapters of his book to euthanasia but steadfastly avoids revealing his own position.

Syme takes care to define euthanasia as a decision by the patient.

Rodney Syme, in contrast, is perfectly clear. It is the moral duty of doctors to alleviate suffering and to respect the autonomy of patients. It is reasonable for patients who are suffering intolerable ravages of terminal illness to choose the time and manner of their dying. It is an obligation of legislators to remove legal barriers and ambiguities surrounding euthanasia. While coroners, politicians and prosecutors dither, and while doctors wrestle with legal and moral ambivalence, real people are subjected to appalling pain, dependence, loss of control and despair. His stories of their lives and deaths are as harrowing as they are persuasive.

Syme takes care to define euthanasia as a decision by the patient, not the doctor. It is ‘An action taken by, or at the request of, a rational, fully informed individual, whose intention is to be relieved of intolerable and otherwise unrelievable suffering, that hastens death in a dignified manner’ (p. 30). Such an action, he argues, should be unequivocally legal for both the individual and the doctor who agrees to assist.

The majority of people in our society apparently agree, but there is sufficient resistance from a minority to stall legislative reform (Kanck 2000; Voluntary Euthanasia Society 2003). Against euthanasia are instinct, faith, and a reverence for the sanctity of life. In favour of its legalisation are practical moral reasoning and sympathy (Glover 1984). Confronted with someone about to suicide, many of us would instinctively move to prevent it. Faced with an intolerable illness, many of us would fervently hope for a miracle cure. For some of us, euthanasia is an affront to our religious beliefs.

Our instinct to preserve life, however, should not blind us to the realisation that death is inevitable for all of us, and imminent for some. Hastening death is a reasonable decision in some circumstances. In a democracy, an individual’s right to make that decision should not be constrained by forlorn hopes, other people’s moral ambivalence or religious beliefs.

Syme’s position is driven by sympathy, which, according to the seminal moral philosopher David Hume (1902), is the source of moral action. Hume argues that we are rational and social beings too, using our reasoning capacity and our social arrangements to bring about morally acceptable outcomes.

Respecting patients’ autonomy requires patients to exercise autonomy.

Moral reasoning supports the legalisation of euthanasia as Syme defines it. Three foundational ethical theories that drive moral reasoning are deontology, utilitarianism and social contract. Deontology insists that we respect other people as ends in themselves, as self-determining persons (Kant 1970). Doctors and the law already respect the autonomy of patients by recognising their rights to refuse treatment. Refusing them the means to choose the manner and timing of their death does not respect autonomy. Legalising euthanasia would not compromise others’ autonomy. It would not require unwilling doctors to participate, nor pressure unwilling patients. Legislation can and should respect and facilitate the autonomy of all involved. Utilitarianism focuses on outcomes as the measure of moral reasoning. The moral decision is that which results in the maximisation of welfare and the minimisation of suffering (Ayer 1963). Preference utilitarianism recommends that the best person to judge what constitutes good outcomes or unacceptable distress is the person who experiences them; in this case, the patient. Social contract theory suggests that laws are just only if they bring about the sort of social arrangements to which fully informed and impartial people would agree (Rawls 1971, 1993).

It follows that if we are to be sympathetic to people’s plights, seek to alleviate suffering, respect autonomy, and establish social arrangements that accord with justice and democracy, then we should legally and unequivocally respect a right to euthanasia.

Respecting patients’ autonomy requires patients to exercise autonomy. It is likely that many doctors would welcome a shift in the burden of ethical decision making from doctor to patient in both microethics and in end of life issues. It would sit well with Komesaroff’s post-modern approach by individualising and contextualising every decision. It is an essential theme in Syme’s argument. But if patients were to assume responsibility, it follows that legislators have an obligation to facilitate that, and remove legal ambiguities and obstacles. It is apparent from Syme’s report that legislators are derelict in that duty but he might be heartened by the current Parliamentary Inquiry (2008). As the demographic bulge of baby boomers approach end of life decisions, legal and cultural changes may be expected.

REFERENCES

Anaf, G. & Jewell, P. 2007, ‘Medicare Item 319 after 10 years: A range of concerns’, Australasian Psychiatry, vol. 15, no. 5, pp. 372–74.

Aristotle 1976 (c330 BC), The Ethics of Aristotle: The Nicomachean Ethics, trans J.A.K. Thomson, Penguin Books, London.

Ayer, A.J. 1963, Philosophical Essays, MacMillan, London.

Glover, J. 1984, Causing Death and Saving Lives, Penguin, London.

Hare, R.M. 1963, Freedom and Reason, Clarendon, London.

Hume, D. 1902 (1888,) Enquiries Concerning the Human Understanding and Concerning the Principles of Morals, Clarendon, Oxford.

Kanck, S. 2000, Social Development Committee: Voluntary Euthanasia Bill, Hansard, South Australian Government, Adelaide.

Kant, I. 1970 (1797), The Categorical Imperative; A Study in Kant’s Moral Philosophy, trans. H. Paton., Hutchinson, London.

Kant, I. 1981 (1797),. Grounding for the Metaphysics of Morals, trans. J. Ellington, Hackett Publishing Company, New York.

Mill, J. 1984 (1861), Utilitarianism, on Liberty and Considerations on Representative Government, J.M. Dent & Sons Ltd, London.

Parliament of Australia Senate 2008, Inquiry into the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008 [Online], Available: http://www.aph.gov.au/SENATE/committee/legcon_ctte/terminally_ill/index.htm [2008, Oct 10].

Rawls, J. 1971, A Theory of Justice, Harvard University Press, Boston.

Rawls, J. 1993, Political Liberalism, Columbia University Press, New York.

Dr Paul Jewell is a philosopher who teaches ethics for the Department of Disability in the School of Medicine at Flinders University. He is a member of the Ethics Centre of South Australia and the editor of ‘Policy as Ethics’, the recent special issue of the journal Policy and Society.

View other articles by Paul Jewell: