Philosophical Bases for Medical Ethics
Legal Principles in Medical Practice
CMA Code of ethics
Making an Ethical Decision
Ethical issues in prenatal screening
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Changes in medical practice have brought ethical issues to the forefront: genetic screening; medical assistance in dying; stem cells, etc. At the same time patients are better informed; litigation is more common; physicians have to be aware of the cost implications of their treatment for society.
Ethics deals with right and wrong conduct, with what we ought to do and what we should refrain from doing.
Medical ethics concerns how to handle moral problems arising out of the care of patients; often clinical decisions must consider more than just the patient's medical condition.
"Ethical issues arise when not all values can be respected. The values in conflict must then be prioritized and the essence of 'doing ethics' is to justify breaching the values that are not respected." (Margaret Somerville, November 2008)
Ethics is not the only discipline that deals with these issues: the law and theology also prescribe certain behaviours. Law is concerned with rules enacted by a certain society and that have effect within geographical boundaries. Religious tenets differ from ethical principles in the source of their authority: they are based on the word of God as interpreted by believers, rather than on a process of reasoning. Religions can permit reasoning about rules of behaviour, but this can only occur within the framework of the fundamental beliefs of the religion. Over time, our approach to ethics has evolved from a religious basis towards a secular code of ethics.
Discussion topic: should you prescribe an antibiotic for a viral illness when a patient demands it? Core question to ask yourself: What does this patient want (relevant to autonomy)? What can be done for them? (beneficence) Is the request fair? (justice)
Traditional approaches to medical ethics quote the four fundamental principles described below.
Discussion points: Your class discussions will cover questions such as the limits to autonomy: the doctor is not required to respect autonomous decisions that are illegal, for example. Also, can a patient autonomously ask the doctor to make a decision for him? A brief response may be that if the patient has good reasons to do so it does not contradict their autonomy. But if they perennially avoid making decisions, then they are not acting autonomously.
Rights confer protection on the individual by constraining collective social goals. The potential tension between seeking the collective good (e.g., protection against terrorism) and protecting individual freedom (e.g. right to privacy of your phone calls) is constantly adjusted as societies evolve, and can reflect the political tone of the government. Few rights are absolute, and balancing rival rights is a constant task for moral and legal judgments.
This refers to a person’s ability to make a particular binding legal agreement. Capacity must be assessed in each specific circumstance. Capacity implies having understanding and communication ability, reasoning and consideration of the issue, plus having a conception of the advantages and risks of the procedure under discussion. Adult patients are assumed competent unless a court has declared them incompetent, or unless you or the family have clear reservations about their ability to receive information and to make choices based on that information.
Discussion point: How do you handle conflicting opinions among family members over an elderly patient's competence?
See The case of Mr Golubchuk for an example
Confidentiality forms a cornerstone of the doctor-patient relationship; it implies respecting the patient's privacy, encouraging them to seek care and preventing discrimination on the basis of their medical condition. To maintain trust between doctor and patient, the physician cannot release personal medical information without the patient's consent. Like other ethical duties, however, confidentiality is not absolute. It may be necessary to override privacy in the interests of public health, as in contact tracing for partners of a patient with a sexually transmitted disease; you are legally obliged to report a possibly HIV infected patient to the public health authorities. However, this should always be done in a way that minimizes harm to the patient.
Discussion topic: A patient's relative gives you information on the patient but asks you not to reveal where the information came from. Do you have to keep this secret?
Disclosure. For the patient to be well informed and to make informed choices (i.e., autonomy), the doctor must disclose information that is materially relevant to the patient's understanding of their condition, their treatment options and likely outcomes. This would include, for example, information on medical errors made in their care. As the American College of Physicians says: "Errors do not necessarily constitute improper, negligent, or unethical behavior, but failure to disclose them may."
Discussion topic: A teenage patient requests an abortion but asks you not to tell her parents. How do you balance protection of the patient's confidentiality against the rights of her parents?
There are some circumstances under which you may choose not to disclose information to a patient, including when the patient specifically asks not to be told (you should still offer them the chance to know the truth); when a patient is incapacitated (here you typically inform the family); during an emergency when the patient's condition is unstable and immediate care is required; and the controversial notion of 'therapeutic privilege', which means that the doctor deems that the risk of informing the patient is worse than not doing so (e.g., they might attempt suicide, or refuse necessary treatment).
Link to Disclosing adverse events
Informed Consent follows from the principle of patient autonomy, and consent is required before you may provide care. "No medical intervention done for any purpose - whether diagnostic, investigational, cosmetic, palliative, or therapeutic - should take place unless the patient has consented to it" (Hébert, p. 84). Informed consent also serves as a significant protection to you against possible litigation.
That said, much of what you do is on the basis of implied consent. If a patient makes an appointment to see you and volunteers a history, answers your questions and submits without objection to a medical examination, you may safely infer that consent for the examination was implied. The Canadian Medical Protective Association (CMPA) provides very useful guidelines on the legal aspects of consent to treatment: "Consent, a guide for Canadian physicians", CMPA, 2008.
Consent may be expressed or implied; the former (e.g., via a signed consent form) typically occurs in hospitals and relates to specific procedures. Consent may be given verbally, but a consent form provides evidence of consent. It is not a contract, however, and the patient can withdraw consent at any time. For routine procedures such as a blood pressure check, consent may be implied if the patient comes voluntarily to the doctor’s office for a check-up.
For consent to be ‘informed’ the patient must receive a full description of the procedure, its risks and benefits, the prognosis with and without treatment, and alternative treatments. The patient must have the mental competence to comprehend the information, and must give specific authorization for the doctor to proceed with the plan. The onus is not exclusively on the doctor: the patient should ask questions when they are uncertain and should think carefully about their choices.
Note the distinction between consent and assent, which may mean merely following the doctor’s orders. Consent forms that the patient typically signs in a hospital are chiefly for information, and will not necessarily protect the doctor from litigation. Patients commonly do not remember the contents of the consent form.
Laura Weiss Roberts has written on this topic, and the following diagram is adapted from her articles:
Link to CMPA brochure "Consent: a Guide for Canadian Physicians
First, be aware of a distinction between ethical arguments that are based on set principles ("lying is always morally wrong", or "our religion forbids it"), which is called principlism and more flexible arguments in which the circumstances of a case influence the decision. This is called casuistry, or case-based argument. Here, theory plays a lesser role, and judgments are reached by referring to paradigms or 'pure cases' that illustrate accepted appropriate ways of acting. This is also how the law works, and you may see a parallel with the difference between deductive and inductive reasoning.
Our approach to medical ethics is evolving and is influenced by many currents of thought. Codes of ethics can aspire to be general (universal), or particular. In a culturally diverse country such as Canada, this distinction is significant as minority groups may not accept the mainstream approach, and seek to adopt a particular code.
Hope et al. offer the following classification of philosophical bases for ethical codes:
|General approach||Examples||Strengths & Limitations|
An action should be judged as good or bad via its consequences, not by the intentions of the actor.
Utilitarianism: Actions are right if they promote the greatest well-being or happiness for the greatest number of people.
Teleology refers to judgment by outcome. For example, do not tell a patient their diagnosis if this will further increase their suffering.
- It treats all people as equal, and so is democratic;
- Can be hard to anticipate consequences;
- Hard to measure & establish equivalency of different forms of happiness;
- Some things are wrong even if they have some good consequences (e.g., killing a prisoner to harvest organs for transplant);
- Improving overall happiness does not guarantee equity.
|Duty-based ethics, or Deontology
An action is judged in terms of set criteria (e.g., Ten Commandments). Rules are derived by rational argument or, in earlier times, claimed to be handed down from God
Kant's moral theory (c.1780). There is one rule that governs all others: the categorical imperative. E.g.: "Act only in a way that you would wish to see as a universal law", or "Never treat people solely as a means, but always as an end."
- Often specifies what one should not do; tends to be less clear on what one should do;
- How to proceed when duties conflict? (Lying to the authorities versus betraying someone).
|John Rawls (1972). Definition of what is right derived from principles chosen by rational people, based on their goals and preferences.|
Ethical guidelines based on what a virtuous person would do in this situation. Focuses on the character of the person.
Aristotle (c. BC 300) tried to define virtues such as kindness and generosity.
This approach often judges an act (e.g., abortion, or killing someone in self-defence) in terms of the motives underlying it, rather than the act itself, as would be the case with duty-based ethics.
- Brings in motives that may be omitted from other approaches to ethics;
- Focuses attention on the characteristics of a good doctor;
- But the basis for defining virtue is not clear (and may require other ethical approaches!);
- May tend to be egocentric (I could propose 'virtues' such as becoming prosperous);
- Definition of virtue tends to be tied to cultural norms;
- Generally fails to indicate a clear path of action in a difficult situation.
We should act as responsible as members of a community
The common good establishes the criterion for what is right. Hence, smoking bans are appropriate, even though they inhibit liberty and happiness of some people.
As we all stand to gain from medical research, people have a moral duty to participate in studies, so the protection of individual autonomy via consent forms may go too far.
- The common good approach fell from favour in North America with the legal protection of individual rights, although a turning point seems to have been reached;
- Closely related to politics of the left (common good) versus right (individual rights)
- Approaches such as utilitarianism or virtue-based ethics can favour the individual's interests.
Reference: Hope T, Savulescu J, Hendrick J. Medical ethics and law: the core curriculum. Edinburgh, Churchill Livingstone, 2003.
The Best Interests of the Patient. This seems to be central to medicine: evidently you serve the best interest of the patient. But how do you decide what is in their best interest? This is often loosely defined in terms of well being, but this does not help very much. Your judgment of 'best interests' may consider the patient's expressed wishes and the factors they would consider (if they were able to do so); any written express wishes of the patient (living will, etc); family members or others (priest, ...) may assist in judging this; any action you take should probably place the least restriction on the patient's freedom of action and future choices. When a patient is incapacitated (coma, dementia, etc) it may be especially problematic to decide what is in his or her best interest.
Duty of Care. An obligation to take care to prevent harm occurring to another person. Doctors generally owe a duty of care to their patients, as does the hospital that employs the doctor. Outside of her office or hospital, a doctor does not normally owe a duty of care, unless she stops and represents herself as a doctor (by word or deed). She is then legally liable for any care she provides. Doctors are not legally required to act as Good Samaritans, but moral duty generally suggests that they will respond to the call "'Is there a doctor in the house?"
Link: A duty of care issue always arises in treating dangerous diseases; a recent article reviews health care workers' duty of care in virulent epidemics
Negligence. To prove negligence requires that the plaintiff establish that the doctor owed a duty of care; that the care provided was below the appropriate standard, and that this caused the patient harm.
Standard of Care. Negligence is usually defined in reference to the standard of an ordinary person exercising the skill in question (e.g., being an ordinary general practitioner).
Physician's Personal Ethics. A physician is not obligated to provide services (such as abortion, sterilization, contraception) that conflict with their personal moral standards. But they do have a duty to inform the patient about options or refer them for such treatments, so that the patient's rights and autonomy are not compromised.
Withdrawing or Withholding Treatment. These are equally justifiable in the law; treatments should not be withheld out of a fear that they cannot be subsequently withdrawn once commenced. For example, it is acceptable to undertake a time-limited trial of a treatment in a terminally ill patient to clarify prognosis.
Medical Assistance in Dying, Physician-Assisted Suicide and Euthanasia. The topics of easing the dying process, avoiding needless pain and suffering, and avoiding unwanted treatments often lead to discussion over the distinction between assistance in the dying process and assisting suicide. "Physician-assisted suicide occurs when a physician provides a medical means for death, usually a prescription for a lethal amount of medication that the patient takes on his or her own. In euthanasia, the physician directly and intentionally administers a substance to cause death." (American College of Physicians, 2005).
Different constituencies have made differing laws concerning physician-assisted suicide. For example, the American College does not support its legalization, while Oregon does allow physician-assisted suicide. In Canada it was formerly illegal to assist a person in committing suicide (even though suicide itself is not illegal), but iIn February 2015, the Supreme Court of Canada struck down the constitutional ban on physician-assisted suicide. Details on the Palliative care page.
Advance Care Planning (Advance Directives, Living Wills ). Advance planning allows a competent person to express their preferences for future care, especially should they cease to be competent to make decisions. It allows their values and preferences to be considered, and generally identifies a surrogate decision-maker. All patients should be encouraged to undertake such discussions with their family members; documentation about their preferences should be included in their medical record. The discussion should cover topics such as do-not-resuscitate orders, as such topics cannot be undertaken under crisis circumstances such as a cardiopulmonary arrest.
Discussion point: Sometimes family members desperately wish to have 'everything possible' done to save their relative. Are there circumstances where a doctor could write a DNR order for a terminally ill patient against the family's wishes?
Power of Attorney transfers decision-making authority to a designated person.
American College of Physicians. Ethics Manual (fifth edition). Ann Intern Med 2005;142:561-583. [Medical Library R724.A59 2003] This gives practical guidance on a wide range of topics
The CMA code of ethics places considering the well-being of the patient at the centre. It speaks in terms of the physician's responsibilities.
The code is divided into three main sections: Fundamental Responsibilities; Responsibilities to the Patient, and General responsibilities. It addresses the core activities of medicine, such as diagnosis, treatment, rehabilitation, palliation, health promotion, advocacy and prevention. It is based on the principles of compassion, beneficence, nonmaleficence, respect for persons, justice and accountability.
Here are selected examples of guidelines:
Several groups have proposed frameworks that help you address the ethical aspects of a difficult situation in a systematic manner. Hébert's book (page 20) suggests the following steps in reaching an ethical decision:
Hébert PC. Doing right: a practical guide to ethics for medical trainees and physicians. Oxford University Press, 1995
The Ottawa Hospital has developed guidelines suitable for an ethics consultation service (in English et en français) that you may find helpful.
Some moral dilemmas the clinician will experience "Moral dilemma" all of the options require you to sacrifice something "Moral distress" you know what should be done, but lack the resources "Moral residue" your best choices still leave something undone "Ethics as tragedy" you can only seek the least bad option.
Several books provide good, practical introductions to how to apply these ethical principles.
Prenatal screening highlights potential conflicts between various sets of rights and values: the rights of the unborn child; the dignity of people who differ in health characteristics (such as those with a disability); the rights of the mother and her autonomy; the rights of the broader society and corresponding values of diversity, of population health, and so on.
Margaret Somerville argued that widespread, publicly-funded screening can risk contravening individual rights: she asks whether we may be on a "search and destroy" mission to wipe out certain groups of people? She argued that, given legalization of abortion, we must approach pre-natal screening bearing in mind the possible systematic targeting of certain types of person (Margaret Somerville; Ottawa Citizen, Nov 20, 2008, page A15).
She raises the following points:
Taking a detailed family and medical history can reveal potential issues, and these should be discussed with the pregnant woman.
Do not assume that something that can be screened for should be screened for. The choice is personal; the physician's task is to ensure the parents are informed. They need to weigh the risks of undergoing the testing and the benefits of knowing the results.
You should be aware of the laws in the area in which you practice, and of what prenatal screening is undertaken there.
During the first half of the 20th century, various medical experiments occurred that exploited vulnerable people to acquire scientific knowledge. Prisoners, children and poor people were deliberately exposed to infections to learn about the natural history of gonorrhea, herpes, and hepatitis. The most extreme examples were the experiments on mentally ill and disabled people by physicians during the Nazi era; this stimulated the creation of the Nuremberg Code of ethics in 1947. The World Health Organization subsequently expanded this in the Helsinki Declaration of 1964.
In 1966, an article by Henry Beecher in the New England Journal of Medicine showed that despite the Helsinki Declaration all was not well in medical research. He described 22 scientific reports that did not respect ethical codes. For example,
In Canada, the Medical Research Council established a set of ethical guidelines for research; this was later merged with similar guidelines from natural science and social science councils into the Tri-Council Guidelines. These cover procedures for the ethical review of projects; how to establish consent to participate; how to ensure privacy and confidentiality; conflict of interest; they promote inclusiveness (e.g., involving women in studies); special considerations for clinical trials, genetics and human tissue studies.
The guiding ethical principles include
Updated November 21, 2018