Getting Back to the Fundamentals of Clinical Ethics

Abstract

I. INTRODUCTION

At the 2005 annual meeting of the American Society for Bioethics and Humanities, the lifetime achievement award was presented to Eric Cassell, M.D., of the Weill Medical College of Cornell University in New York City. ¹ Dr. Cassell was one of the founders of the field of bioethics, playing an instrumental role in the development of The Hastings Center from its founding and in producing an extraordinary body of scholarship in clinical ethics (Cassell, 1985a, 1985b, 1991). In his acceptance address, Dr. Cassell reminded his audience of the focus of bioethics and clinical ethics three decades ago on the fundamentals of the field. Dr. Cassell lamented the lack of intense focus on the fundamentals of the field and called on his audience to return to the older, richer, more challenging intellectual work of getting the fundamentals right. Although they were written before this address was given, the articles in this 2006 “Clinical Ethics” issue of the Journal of Medicine and Philosophy take up Dr. Cassell's challenge in interesting and important ways.

II MARKETS AND PROFESSIONAL INTEGRITY

There is a tendency in the literature of clinical ethics toward the view that market forces and market reforms are necessarily antithetical to professional integrity. Xiao-yang Chen (2006) takes up issues of clinical ethics in China and, in the process of doing so, challenges this tendency in ways that are very instructive about and important for the fundamentals of clinical ethics. Chen points out that the regulated market for medical care in China fosters economic conflicts of interest that threaten professional integrity. The principle source of these conflicts, Chen argues, is not market forces per se but the artificially low prices for physicians' services set by payers. It is no surprise that physicians seek alternatives to increase their revenues in such an environment, to meet their costs and salary expectations. Chen points out that common strategies include direct sale of medications, which also occurs in the United States, and soliciting “red packets,” i.e., informal remuneration outside of the official reimbursement system. This practice also has existed elsewhere, e.g., in Eastern Europe, where it is known as “tipping.”

On Chen's insightful ethical analysis the problem appears not to be with market forces per se, but with manipulation of the market by payers in ways that distort and even undermine rational market function. Chen proposes as the solution to this problem market reform. More precisely, Chen proposes to allow the medical market in China to function as a genuine market as the means to remove these sources of pernicious self-interest. The result will not be utopian elimination of economic conflicts of interest but, instead, changing the financing of medicine in a direction that will encourage, rather than corrupt, the professional integrity of physicians. As Chen puts it: “The integrity of the medical profession and the trust of patients in physicians can only be restored and protected if the distorting forces of contemporary public policy are altered” (Chen, 2006, p. 11). Professional integrity, a virtue that obligates physicians to practice medicine and conduct research to standards of intellectual and moral integrity, is among the fundamentals of clinical ethics. Indeed, in professional medical ethics it is the fundamental professional virtue.

III RESPONSIBLE MANAGEMENT OF PAIN AND SUFFERING

Pain, distress, and suffering are ubiquitous in the clinical setting. Sometimes they are owed to or themselves are part of a disease or injury. Sometimes they are caused by what clinicians do. Tomasz Okon (2006) addresses two concerns related to palliative care, the multidisciplinary clinical management of both disease-related and iatrogenic pain, distress, and suffering. The first concern arises from the close connection between palliative care and terminal illness, “whether these presumably expressible and discernible preferences of patients facing death are accessible to the comprehension and analysis accepted in medical practice” (Okon, 2006, p. 15). The second concern, Okon argues, arises in the inability of the discourses and conceptual frameworks of palliative care to think about and understand death. Okon characterizes the discourses of palliative care in terms of “cognitive empathy,” i.e., to understand how patients feel and then to communicate that understanding to patients, as a basis for creating the therapeutic alliance known as the physician-patient relationship. Okon then reviews the scientific literature on studies of how well clinicians understand severe suffering and communicate with the seriously ill patients about it, and raises serious questions about the adequacy of both. He then goes further and argues that there is not only an “empathic impasse” but a cognitive impasse as well. The latter impasse has its roots in the conceptual inadequacy of palliative care's account of death, especially its ontological status, and its discourses of death with patients. Okon concludes that “death resists understanding prescribed in the current physician-patient communication models” (2006, p. 38). Physicians should recognize this and fall silent.

One way to think about this conclusion is that dying and death are not doctors' work; they are patients' work. Physicians, to be sure, can relieve pain and ameliorate distress and suffering. But, as a secular, scientific profession, medicine has no account of death. Nor, I suggest, does it need or should it want one. A patient may understand death the way Plato has Socrates instruct his readers to understand it, either as endless sleep or as endless discussions in the underworld with those who have gone before us, especially cultural giants. In either case death is no harm. A patient may understand death as the transition to another embodiment, determined by how well or poorly one has lived one's life (and, perhaps, past lives). A patient may understand death as passing into the presence of a creator, judging God, as depicted on the portals of the great Roman Catholic cathedrals of medieval Europe. A patient may understand death as obliteration. Medicine has no particular wisdom in these matters and has no way to claim particular wisdom. This may be a very good thing; our work at the end of life, should our deaths occur as anticipated, will be interesting and demanding enough without the complication of assertion of power by physicians in the absence of intellectual and therefore moral authority.

IV ADVANCE DIRECTIVES IN THE CLINICAL MANAGEMENT OF DEMENTED PATIENTS

There has been recent controversy about the applicability of advance directives in the end-of-life care of patients with dementing disorders. Martin Harvey (2006) objects to the line of argument, advanced principally by Rebecca Dresser (1994, 1995) and John Robertson (1991), that advance directives do not apply to this patient population, because the demented patient is not, in important respects, the same person as the one who executed the directive, and because more harm than good will result. Harvey treats dementia as a process and relates key moments in that process to both a unified sense of self and a relational self, culminating in the destruction of the self in both senses by advanced dementia. Harvey advances his objection by arguing against the concept of merely or wholly present self because such a concept cannot make sense of ourselves as agents and by arguing that Dresser's view applies to all decisionally disabled patients, which would be “devastating for the use” of advance directives. Harvey also argues that judgments about whether implementing or overriding an advance directive is harmful to the demented patient are deeply problematic.

One could also argue that it is odd to think of a human being as having a self when that human being is wholly present in the sense of no longer having a past. Billy Pilgrim (Vonnegut, 1969) became unstuck in time and faced challenges about reconnecting to his past. He was still a self, though only more or less unified at any one time in his fragmented life. Patients with advanced dementia, in an important sense, are no longer in time at all. To think of them as selves is therefore very odd. Perhaps they cannot be harmed or benefited as selves at all.

V CLINICAL TRIALS AND CLINICAL ETHICS

It has long been recognized that the role of physicians in clinical practice may or does stand in tension with the role of physicians in clinical research. The former should be governed by the physician's fiduciary responsibility to provide medical care that is in the patient's health-related interests, based on the best available evidence. The latter should be governed by the investigator's responsibility to adhere to standards of intellectual and moral excellence in study design, execution, and evaluation. Randomization is ethically problematic, especially randomization to a placebo arm when there already exists effective clinical management of the patient's diagnosis. James Anderson (2006) takes up the ethical challenges posed by placebo-controlled randomized trials through the lenses of the assay sensitivity argument and the Duhem–Quine thesis. Assay sensitivity concerns the ability to “distinguish an effective treatment from a less effective or ineffective treatment” (ICH Expert Working Group, 2000, E10, 7). Anderson goes on to critique the assay sensitivity argument by arguing that it does not establish the methodologic preferability of placebo-controlled trials over active-controlled trials because both appeal to information external to the trial. Neither study design, especially in analysis and interpretation of results, is self-contained; both appeal to background assumptions and information. This is a version of the Duhem–Quine thesis. Anderson concludes that both placebo-controlled and active-controlled trials are “on all fours,” methodologically speaking. As a consequence, “the principle of clinical equipoise continues to promise a genuine resolution of the ethical dilemma posed by clinical research” (Anderson, 2006, p. 80).

This conclusion has important implications for the above-noted tension between clinical ethics and research ethics. The fiduciary responsibility to provide medical care to standards of intellectual and moral excellence is bedrock to clinical ethics. Clinical equipoise means that the best available evidence supports the conclusion that neither arm of a clinical trial is clinically superior to the other. Physicians can thus conduct such trials or refer patients to them in consistence with their obligations in clinical ethics.

VI REPRODUCTIVE TECHNOLOGY

Advances in reproductive medicine pose continuing clinical ethics challenges to physicians, as well as to female patients, their families, and society at large. Janet Malek (2006) takes up some of these ethical challenges, in the review essay for this clinical ethics issue of the Journal. Malek points out that a central ethical consideration about the clinical application of new reproductive technologies should be “whether or not those future children can be harmed by the use of such technology” (Malek, 2006, p. 83). Like Harvey, Malek frames the issues in terms of a more fundamental concern, the concept of identity in her consideration of two recent books. This complex and difficult concept can be understood in terms of both numerical and narrative identity, and Malek argues for the superiority of the latter over the former.

VII CONCLUSION

Eric Cassell was right when he said that the early discussions in the field of bioethics — he reported on those in which he participated in the working groups of the Hastings Center in the 1970s — focused on the fundamentals. He was also right to note that clinical ethics at times has become detached from such a focus and that it is therefore time to refocus on the fundamentals. The articles in this year's clinical ethics issue of the Journal do so. In the process of doing so, they help us see the underlying connections between topics in clinical ethics that at first seem disparate, e.g., the central place of concepts of identity in the ethics of both geropsychiatry and assisted reproductive medicine and the central place of fiduciary responsibility for patients in both clinical ethics and research ethics.

Notes

1. See the Annual Meeting program of the American Society for Bioethics at http://www.asbh.org/annual_meeting/ASBH_2005.pdf, accessed November 15, 2005.