Module 1 – Chapter 2
Ethical Theory and Methods
1. What Ethics Tries to Do
2. How to Use Ethical Methodology 3. Standards for Ethical Argumentation
4. Six Key Concepts in Ethical Argumentation i. Relativism
ii. Situational Ethics
iii. Right Actions or Good Outcomes (Deontology and Teleology) iv. ―Prima Facie‖ Principles and Obligations
v. Virtue-Based Ethics vi. Ethics of Care
5. ―Bottom-Up‖ and ―Top-Down‖ Analysis 6. Summary
1. What Ethics Tries to Do
Ethics studies how individuals and groups behave in the moral arena. It asks what makes someone worthy of moral praise or censure; what kinds of behavior, acts, or conduct should be permitted; and what should be valued in life, what should be pursued, and why. It
incorporates, and tries to justify ideas about, definitions of, and foundations for, virtue, goodness, and their opposites. It offers recommendations for morally preferred behavior. The fundamental distinctions between right and wrong are reflected in norms for human behavior. Such norms are intended to define morally obligatory behavior1 and to answer a series of related questions such as:
1. What, if anything, is or ought to be ethically obligatory? 2. What might be ethically desirable, even if not obligatory?
3. What, if anything, should be classified as supererogatory—desirable and ideal but above and beyond ordinary ethical expectations?2
4. What types of special obligations, if any, might apply in particular circumstances and with respect to particular relationships? Examples of circumstances and relationships that are often broken out for special examination include friends and family,
professional colleagues, children, the disadvantaged or disempowered, and others who may claim special considerations.
5. Are there any absolute rules and obligations, or should rules be construed as guidelines only?
One of the traditional goals of philosophy has been to develop a comprehensive theory of ethics. A comprehensive theory of ethics would provide a reasoned and systematic approach to issues such as the definition, understanding, analysis and justification of concepts of right
and wrong behavior. These ideas are needed not only for the study of ethics in the abstract but also to explain and justify moral choice: moral decisions by individuals, and social and political policies by morally sensitive groups and societies. These explorations are often prompted by circumstances that result in moral ambiguity, or uncertainty as to the morally correct course of action. The problems of moral ambiguity are difficult to resolve. Here, for example, are two irreconcilable approaches to the just allocation of scarce medical resources:
a. First come, first served
b. Allocate according to contribution to society.
Both are superficially plausible. Neither really works in all situations. The first formula fails because our moral intuition leads us to conclude that coming first (temporal priority or preference) does not necessarily confer a compelling or dominating moral claim.3 Under mass casualty conditions, for example, if the first patients to arrive are the least likely to be helped, their moral claim to medical treatment may be displaced (or reduced, or pre-empted) by the claim of patients more likely to benefit. Temporal priority does not confer either absolute or dominating moral priority (priority of moral rights).
It is not hard to submit this statement to a practical test. Does the strength or the nature of the surgeon‘s obligation to treat patients in a mass casualty situation derive from when they arrived at the triage station? Should a moribund patient, for example, be treated before someone with life-threatening, but unquestionably survivable, injuries simply because he arrived first? That is not the principle that is generally accepted.
On the other hand, it would be wrong to argue that the surgeon has no obligation to care for such patients.4 The fact that they are injured and in need of care suffices to create some moral obligation on the part of the surgeon.5
The second formula also fails but for different reasons. How do we evaluate contributions to society? Are we discussing past contributions or future contributions? Do ―contributions to society‖ constitute a valid category of attributes or qualities? How does one reconcile
disagreements about the value of a given individual‘s contributions? What if there is no time to engage in such evaluations? Are these moral qualities? Does an individual‘s contribution to industry, the arts, science, or humanity necessarily result in an obligation on the part of society or on the part of an individual surgeon? Would such an obligation trump other moral obligations in a dispositive manner?6
Not every theory of ethics is workable. From a practical perspective, workable ethical theories incorporate four major elements:
1. a systematic approach to the definition, analysis, understanding, and defense of concepts of right and wrong behavior;
2. a method of reconciling various normative claims; 3. a critique of moral systems;
2. How to Use Ethical Methodology
The methodology of ethics is comparable in several ways to the methodology of experimental science. The methodology of experimental science is intended to confer
validity, relevance, and comparability. The methodology of ethics is intended to do the same. In both cases, the methodology is a process that must respect certain rules irrespective of subject matter or content.7
The relationship of ethical theory and ethical methodology can be confusing. Ethical methodology draws upon ethical theory to apply, extrapolate, and critique rules and principles and to evolve ethical codes into useful and relevant guidelines to which the standards of validity, relevance, and comparability may be applied. The theory is the equivalent of the basic science used to understand and explain fundamental principles and mechanisms of action.
From a practical perspective, the main ethical issues the surgeon may expect to encounter include:
1. Authority: On what basis is ethical authority bestowed or should an ethical decision or recommendation be made?8
2. Meaning: What is meant by terms such as ―good‖ and ―bad,‖ and other components of the language of ethics in the context of the decision at hand?
3. Norms: What are the pertinent ethical norms—the rules, principles, and implicit and explicit codes of behavior that govern, or that ought to govern, human behavior—and how are they to be applied?
4. Justification and validation: On what basis may these ideas be validated, justified, or criticized? How can one be sure they are right, or at least defensible? Are there reliable tests to judge the validity and relevance of ethical rules, principles, and decisions?
5. Consistency: As a matter of justice, are morally similar circumstances handled in morally similar manners?
6. Decision making: By what process should ethical decisions be undertaken?
7. Policy: How should ethical considerations influence matters of institutional and social policy?
3. Standards for Ethical Argumentation
At the most basic level, we are concerned in distinguishing things that are morally obligated or permitted from those things that are morally prohibited. The arguments marshaled to make these distinctions must meet certain standards. These standards are applicable to all moral argumentation including at the case level. The minimal standards include:
Impartiality/objectivity
Fairness/consistency
Material comprehensiveness
Impartiality/objectivity refers to a lack of partisanship—the ability and the willingness to consider all sides in an argument without prejudice or preference. Impartiality is often used to refer to a lack of prejudice, bias, or prejudgment.
Fairness refers to the principle that morally similar problems and situations be treated similarly. Judgments in similar, but not identical circumstances may differ but should differ only in relation to the materiality of the differences and should have clear justification for the divergence. Fairness embodies a quality of consistency and an element of moral universality (see below).
Material comprehensiveness refers to the obligation to possess all material data and information prior to undertaking a decision or a judgment. It is important to distinguish between the wish to have all data in hand and the importance of having all material data in hand. Material data are dispositive data—data with the power to affect a decision. This is always measured by a temporal component in that it is what is reasonably available at the time of a needed decision. While certainty with regard to material comprehensiveness is almost impossible to obtain, there is a positive ethical duty to attempt to collect all material data before coming to a decision.
Universality refers to the idea that ethical arguments ought to be tested for universal applicability; at the very least they should be consistent and applicable across all materially similar situations.9
4. Six Key Concepts in Ethical Argumentation
When attempting to apply or teach ethics, several key concepts often need to be addressed. These concepts are often raised as types of ―trump‖ cards, as if they have authority over actual reasoning. For instance, when a student says, ―That is your belief and this is my belief, and you cannot tell me what to believe‖ (relativism), it can appear to make the problem either intractable or settled before giving good reasons. Good ethical methods recognize that theory and categories should create opportunities for clear analysis rather than simply being appeals to authority.
i. Relativism
Relativism refers to the idea that two diametrically opposed ideas remain
simultaneously true.10 It is difficult to construct a consistent system of ethics based on relativism because the same decision or the same answer can be right and wrong at the same time. Several theories of ethical relativism have been used to argue that there is no absolute right and wrong. These theories have not garnered support in academics, but many students and patients purport to hold this type of system in an unreflective manner. It is true that many personal beliefs that do not affect rights and obligations of others are not open to be questioned. However, since medicine involves many people who have competing rights and obligations interacting, we need to have
some way to justify which idea ought to be put into practice. This must be a weighing of what is lost and gained by following one ideal over another.
ii. Situational Ethics
Situational ethics refers to a special theory of ethics in medicine propounded most eloquently by Joseph Fletcher, an Episcopalian theologian. In the beginning of the medical ethics movement in the United States, it was quite influential.
Fletcher constructed a moral system based on the maximization of selfless, self-sacrificing Christian love, or Agape (αγάπη). Agape is also sometimes construed as referring to Christian charity. It is the love alluded to in the rule ―Love thy neighbor.‖ Because love in this form is the greatest good, other laws may be set for its benefit. Fletcher distinguished situational ethics from two other approaches to ethics that he deemed flawed: a legalistic approach based on moral rules, whichever they might be, and an antinomian approach empty of rules that disputes validity of ethical principles and holds each situation to be unique. Situational ethics was meant to offer a middle ground between legalism or formalism, which is sometimes considered an over-emphasis on codes of conduct, and antinomianism, where there are no rules at all. It is used more commonly to refer to the idea that moral rules are neither absolute nor always binding but are instead open to subjective modification according to circumstance. The theory is criticized for its subjectivism, relativism, and
consequentialism; however, it highlights the importance of appreciating the unique circumstances of each clinical case and of avoiding stereotyping a case too quickly.
iii. Right Actions or Good Outcomes (Deontology and Teleology)
Deontology refers to an ethical theory in which the right and the good are defined by acts, duties, and obligations rather than outcomes. The extreme deontologist will argue that only acts matter, and not outcomes. Opponents of deontological theory argue that consequences are morally relevant and should not be discarded.
Teleology, in contrast, argues that the right and the good are defined solely, or at least primarily, by reference to consequences. The ways in which these consequences are formulated or evaluated distinguishes among the theories. Classical utilitarianism aims to maximize the good for the greatest number. It is also possible to select for acts that achieve this goal and rules that achieve this goal. Defining the set of people to whom the description ―the greatest number‖ applies can be difficult. Healthcare, for example, can be viewed in tiers or hierarchies. Should the good be greatest
locally? Regionally? Nationally? Internationally? How should that decision be made? Should the purchase of new MRI machines in Houston be deferred in order to fund mosquito eradication in East Africa? Opponents of teleology argue both that it is tricky to define and difficult to measure the ―good‖ and that maximizing the good over a population does not guarantee fairness or a just distribution of the good.11 The principles of fairness parallel the principles of distributive justice.
While teleological and deontological thinking may seem polar opposites, there are important elements of each that exist in well-reasoned justification of actions that are used in ethical analysis. Both how we do something and the reasonably expected outcomes of a situation are important in these decisions. The language and appeal to these theoretical concepts are mainly useful in assisting clinicians in being aware of the ethical elements. No one really accepts only one or the other of these theories.
iv. “Prima Facie” Principles and Obligations
―Prima facie‖ principles and obligations refer to a set of principles and obligations (e.g., truth telling) that are construed to hold true ―by default.‖ They possess a very high moral priority that remains valid except when overridden or displaced by more pressing considerations. W.D. Ross‘s seven prima facie obligations include fidelity (promise keeping), reparation (gratitude and returning favors or kindnesses), gratitude, non-maleficence, justice, beneficence, and self-improvement, and any number of these may apply to any given situation. Ross acknowledges that these obligations may be contradictory in some circumstances.
In any event, the idea of prima facie principles and obligations softens the view of absolute deontology and allows for a conversation about which of a list of compelling obligations ought to prevail. It is a very useful construct for discussing problems in clinical ethics. Simply, in clinical ethics cases, it helps to identify fundamental values that individuals believe are foundational to their lives.
v. Virtue-Based Ethics
Virtue-based ethics refers to the idea that ethics should focus on the development of character because good character is what reliably results in ethically good judgment and in motivation to act morally.12 It also argues that character can be formed by appropriate instruction. It is not rule- or principle-directed at first pass but rather character directed.
Virtue-based ethics was the preoccupation of much of classical ethics. It fell into decline but then rose to prominence once again in the latter half of the twentieth century.13 It has been criticized for dwelling on the agent rather than the action. The fact that an individual is virtuous does not necessarily and certainly not automatically explain why an action he takes is right. As an ethical theory, virtue-based ethics suffers from the lack of a mechanism to reconcile possible conflicts. The most important aspect of virtue theory may be the idea that a person may better him- or herself by acting in an appropriate manner, i.e., internal motive to sacrifice for others may be a reward in itself in making one a better person.
vi. The Ethics of Care
Ethics of care refers to an ethical system centered upon relationships, caring, and prevention of harm. It proposes that moral decisions be guided by feelings of attachment rather than detachment and informed by personal needs as well as by impersonal principles.14 This perspective on ethics has been very influential in the nursing literature and is sometimes used to explain, in part, the different ethical perceptions of nurses and physicians in any given instance. Rather than being used to attack the traditional establishment, it serves as a reminder to take into account the impact on all those who are important to and have relationships with patients. The illness and the related decisions have ripple effects for individuals, particularly caregivers, who might have a legitimate role in decision making that affects them. 5. “Bottom-Up” and “Top-Down” Ethics
Ethical analysis can be conducted along either ―bottom-up‖ or ―top-down‖ paradigms. These terms refer to two categories of moral analysis. The bottom-up analysis is more familiar. It involves examining every situation on its own merits, independently of any particular theoretical construct. The analysis is driven by the details of the case at hand. This is the analysis typically conducted to resolve an ethical problem that arises in the course of patient management.
―Top-down‖ analysis involves the identification of a moral theory to which one attributes credibility and that one believes to be generally correct. The case is then examined from the perspective of that moral theory.15 This approach is particularly useful in retrospective analysis of cases that prompts a change in practice or policy for future patients.
Bottom-up analysis is the tool more commonly used in clinical ethics, at least at first. Physicians typically examine ethical cases the way they examine patients: one at a time. Nevertheless, an appeal of some kind to ethical grounding almost always appears at some point in the discussion to provide a clearly articulated set of reasons why a position is permissible and preferable over other options.
6. Summary
This module is intended to provide a guide to the ―basic science‖ of ethical argumentation and to the resolution of ethical conflict through an overview of ethical theory and
methodology. Ethics studies how individuals and groups behave in the moral arena. Medical ethics is a form of applied ethics that begins by asking how the moral arena in medicine should be delineated. It seeks to determine the kinds of behaviors, acts, and conduct that should be valued and permitted. It investigates ethical argumentation and establishes criteria for rational ethical discourse. It incorporates, and tries to justify ideas about, definitions of, and foundations for, virtue, goodness, and their opposites in the practice of medicine. The next module will address the foundational concept of Western Medicine, Informed Consent. In the fourth module, Process and Conflict Resolution, we will provide more
practical guidance in solving ethical dilemmas faced in the actual course of neurosurgical practice that will be based on ethical methods and theory. Finally, the current module will be used again in the second section of these modules, Specialty Topics, in the specific ethics discussions.
Notes
1
An awkward, but useful term for this idea is moral ―oughtness.‖ The force of ―oughtness‖ is often and inappropriately exploited to wrap social convention in moral authority and justify the forcefulness of otherwise inexplicable indignation. Ethicists try to distinguish between moral and non-moral disapproval. Some ethicists have tried to explain the meanings of the terms ―wrong‖ or ―bad‖ (in the moral or aretaic sense) purely, or mainly, in terms of a profound, even emotional disapproval whose force is intended to impose and successfully enforce a prohibition (―You ‗ought not,’ ‘ must not,’ or ‗may not’ do this or that‖). One reason this interpretation is appealing is that it reflects common experience (―Don‘t do that! How can you? How awful!‖) and also tries to resolve a problem in circular reasoning (―How do I explain the moral meanings of the ―right‖ and the ―good‖ in non-moral terms that are not self-referential?‖). The majority of ethicists have concluded that this interpretation is appealing, but incomplete, because there are too many situations it fails to explain. A fuller discussion of this issue is beyond the scope of this work. See, however, Williams B: Morality. New York, Harper and Row,1972; and Beauchamp TL, Childress JF: Principles of Biomedical Ethics, 5th Edition. Oxford University Press, New York, 2001.
2
It is easy to dismiss the idea of supererogatory as overly analytical (―It‘s obligatory or not: how can it be ‗super‘-erogatory?‖), as hypocritical (―We‘re just afraid to make it obligatory because we know no one will take heed‖), or as hopeless idealistic (―Don‘t impose norms that no one can live up to‖), but in fact, the idea of the supererogatory is deeply embedded in Western and also in medical, and particularly neurosurgical, culture. Thus, the Congressional Medal of Honor bestowed in the United States for courage in combat commemorates bravery ―above and beyond the call of duty.‖ Neurosurgeons, too, have historically prided themselves on supererogatory devotion to the profession and to their patients.
3
That is, does not necessarily confer absolute moral claim or priority under all circumstances.
4
An obligation to relieve pain and suffering, for example, remains in place.
5
The difficult question is the nature of that obligation and its extent.
6
In the legal sense, something is dispositive when it is legally decisive.
7
The methods of astrophysics, metallurgy, radiation biology, thermodynamics, analytical chemistry, and proteomics may differ substantially. Neither the questions asked, nor the methods of investigation, nor the contents of scientific publications may be wholly accessible to non-experts. Nevertheless, the methodological principles are akin to one another and to other areas of experimental science.
8
Religious ethics, for example, ties ethical authority to religious authority. Religious ethics traditionally attributes ethical authority (what is ethically right and wrong) to authoritative religious texts, to knowledge specially revealed to the adept, or to expressions of the Divine will.
9
These are, perhaps, the most controversial characteristics of the list. It may be difficult to articulate the dimensions of materiality.
10
More formally: A and ~A [read ―not A‖] are both true simultaneously.
11
This idea of fairness is very important in medical ethics and recurs often. It is part of the discussion around triage for example (in mass casualty situations, is it fair that the most wounded get the least care—if that is, in fact, the rule?), transplantation (should kidneys for transplantation be apportioned without regard for age or for contribution to society?), and diversity in medical education (should medical students be recruited in proportion to their ethnic representation in society?).
12
Another take on virtue-based ethics that addresses this question in part, even though it did not intend to, is to be derived in Roderick Firth‘s Ideal Observer theory. In this theory, Firth argues that what we mean when we say something is right or good can be understood in terms of what would be selected by an ideal observer with certain definable characteristics. It is a small leap to identify these characteristics with a description of the virtuous man, although it might well be argued that Firth has described what it takes to know good but not to do good. The ideal observer might be a disembodied brain whose acts would be restricted to thinking and knowing but not doing. The virtuous man would do good, but would he also have to know good? Thus, a virtuous idiot savant might always choose the right path without having any idea of why? One can deal with this objection by incorporating the ability to choose consciously as one the characteristics of the mature virtuous man, but whether it is a necessary characteristic is certainly arguable. See Firth R: Ethical absolutism and the ideal observer. Philos Phenomenol Res 1952; 12(3): 317-345.
13 See, e.g, the brief but excellent discussion in the entry on ―Virtue ethics‖ in the Stanford Encylopedia of
Philosophy, revised July 18, 2007. Accessed on-line at http://plato.stanford.edu/entries/ethics-virtue, April 2, 2008. See also, Walker RL, Ivanhoe PJ (eds.) Working Virtue.Oxford: Oxford University Press, 2007.
14
See, e.g., Noddings N: Caring, a Feminine Approach to Ethics & Moral Education. Berkeley: University of California Press, 1984; and Held V: The Ethics of Care. New York: Oxford University Press, 2005.
15
This discussion takes after Hope T: Medical Ethics. A Very Short Introduction. New York: Oxford University Press, 2004, pp. 64–67.
