November 1985 VII/3
WHO WILL DETERMINE MEDICAL ETHICS?
Two recent court cases show the confused state of affairs in regard to the ethics of medicine. The Supreme Court of New Jersey, in the famous Claire Conroy case (see EIHC, January '85), determined that tube feeding could be withdrawn from a comatose patient if severe pain is present or there is some indication that the patient would choose removal of life-support systems were he or she able to do so. Last month in Dedham, Massachusetts, a probate judge issued an injunction blocking the removal of tube feeding from Paul Brophy, a comatose fire fighter, who had expressed a desire to die swiftly in case of severe disabling illness. The judge, in face of the realization that no therapy would restore Brophy's cognitive functions and discounting Mrs. Brophy's and her children's request to terminate life-support, declared that "it is ethically inappropriate to cause the preventable death of Brophy by the deliberate denial of food and water which can be provided to him in a noninvasive, nonintrusive manner which causes no pain and suffering, irrespective of the substituted judgment of the patient."
Principles
Clearly, the two courts are in disagreement because there is no accepted ethical norm in medicine for the treatment of persons who are in a vegetative state. Should life-prolonging therapy be withdrawn if cognitive function cannot be reasoned? Is nourishment furnished by tube feeding necessary only for comfort, or is it only a life-prolonging therapy? Or is it: both comforting and life-prolonging and/or comfort therapy? There is no well-reasoned, commonly accepted, moral imperative offered by physicians in this regard.
While I wish to express dismay at the decision of theˇMassachusetts court, I would attribute the cause of the confusion to the medical profession rather than to the legal profession. There is an intricate relationship between ethics and law: legislation and judges should express and protect existing ethical principles when they make decisions. Their proper mandate is not to formulate ethical norms, but rather to apply them. Law and court decisions should be founded upon ethics, not vice versa. Both law and ethics imply an obligation to follow the norm stated by either discipline. The obligation of law usually involves a material penalty of one kind or another: a fine or incarceration results if one violates a legal obligation. The obligation of ethics is one of conscience. While violating ethical norms may not involve material loss, one's integrity and authority are weakened or lost by violating ethical norms. Sceptics may state that ethics is less important than law, because violating law implies more definite penalties, but the professions, especially the profession of medicine, have always valued integrity and honesty above material goals.
Why is there a reluctance on the part of physicians in the United States to state ethical norms before the courts and legislatures do? What prevents physicians from agreeing upon ethical norms which would serve as the basis for ethical obligations, laws and legal decisions? There seems to be several viewpoints that prevent physicians from assuming this form of leadership:
(a) As Carlton Chapman pointed out in a recent work of outstanding insight and scholarship, "some physicians view medicine solely as bioscience." (l) Physicians of this mentality are more concerned with protecting their own prerogatives than they are with the delineation of the moral purposes of medicine and the rights and obligations that arise from the patient/physician relationship. Chapman proposes that this mentality has dominated the ethical statements of the American Medical Association for over 100 years.
(b) While some physician groups have sought to state principles of medical ethics, their efforts have not been forceful enough. There is a reluctance on the part of physicians to admit that ethical norms involve "should" and "ought;" that is, that they oblige in conscience. Thus, the American College of Physicians commissioned an ad hoc committee to formulate some principles of medical ethics. While the committee prepared a reasoned text considering many different cases and the ethical principles usable in different situations, the principles were submitted as guidelines. Ethical principles are not guidelines, if this means, as it usually does, that one is morally free to accept or reject these principles. Ethical principles are more than guidelines. Until physicians admit that ethical principles are norms which imply a "should" or "ought" in medical practice, all ethical statements will lack credibility and effectiveness. The "ethics as guidelines" mentality was reflected in a recent statement of the American Hospital Association. After approving a set of objective norms for ethical patient care, the Board of Trustees of the AMA stated: "By definition, there are no objectively right or wrong answers to the dilemmas generated by conflicting values." By opting for ethical norms which imply moral responsibility, I am not implying that detailed norms can be stated for every case and that a "cook book" of ethical actions could be published. Rather, I maintain that a set of norms could be developed by physicians which, in the words of the President's Commission on Ethics in Medicine, would contain "substantial rules identifying the various factors that look to ethically defensible decisions and which suggest procedures that would make careful considerations of these factors more likely." (3) Thus, some statements of ethics fail not because they are too particular, but because they are put forth as suggestions or guidelines instead of objective norms which involve moral obligations.
(c) Finally, some statements on medical ethics fail because the physicians do not utilize the help of ethicians and philosophers. Recently, a group of physicians ought to state norms for ethical treatment of "hopelessly ill patients" and failed to distinguish the ethical difference between patients who are "hopelessly ill" and those who are merely "pleasantly senile." (4) Statements of medical ethics will never have any force in medical and legal circles unless they are formulated by physicians. The basis for such formulations should be a reasoned analysis of the purpose of medicine and the responsibilities of the physician/patient relationship. But in the formulation of ethical norms for medicine physicians should be aided by those who have expertise in ethics and philosophy.
Conclusions
"The medical profession has never developed a forum within its structure that is suitable for the systematic discussion of such items (i.e., ethics) and as a consequence has been handicapped in many ways through the centuries." In these words Chapman indicates that physicians, in their professional societies, must pave the way for the formulation of ethical norms for medicine. In the words of another physician, "The point is that we physicians must be the ones to decide how we practice our profession." (5) If physicians don't decide the ethical norms for the profession, then the legislation and the courts will continue to decide for them.
Fr. Kevin O'Rourke, OP
Footnotes 1. Carleton Chapman, Physicians Law and Ethics.; New York: New York University Press, 1984; p.147.
2. Annals of Internal Medicine, 101, 1984; p.129-137; p.263-274.
3. Summing Up, 1983; p.66.
4. "The Physicians Responsibility Toward Hopeless ill Patients," Wanter et al.; NEJM, v.310, n.15; p.955-959; Apr.l2, 1984.
5. Charles Davidson, "Are we Physicians Helpless," NEJM, v.310, n.17; p.117; Apr. 26, 1984.
| INDEX | © Kevin O'Rourke, O.P.