I am grateful to Tomi Kushner for inviting commentaries on my paper, “Medical Ethics: Common or Uncommon Morality?”Footnote 1 and for the authors who submitted their remarks, Leonard M. Fleck,Footnote 2 Leslie Francis,Footnote 3 Tuija Takala, and Matti Hӓyry.Footnote 4 I appreciate their investment of time and effort and sharing their insights. Their articles provide a banquet of food for thought, and, in return, I now tender my smorgasbord in response. For the most part, they each raise different issues and I respond to them separately. Professor Francis as well as Professors Takala and Hӓyry, however, challenge one core thesis, and I reply to them together near the end of my defense.
Reply to Leonard Fleck
Professor Fleck’s observations in his paper, “Medical Ethics: A Distinct Species of Ethics,”Footnote 5 are remarkable in that they provided me with insight into my own position and offer a perceptive defense against some of my critics. Fleck’s suggestion that “medical ethics should be seen as a distinct species of ethics, not capable of interbreeding with common morality” captures what I tried to explain. I agree that medical ethics, as well as common morality, have evolved over time. Also, medical ethics guides the choices made by medical professionals in ways that function alongside of decisions made by others in our society. In those ways, medical ethics interacts harmoniously with other species of ethics.
That said, neither common morality nor any other species of ethics offers the perspective for answering the questions that medical professionals have to address. The principles and methods of common morality are too abstract and abstruse to be useful in the clinical environment, and the clinical arena is too radically different from everyday life for the principles of common morality to provide useful guidance. As Fleck noted, “illness make a person a patient.”Footnote 6 That transformation converts people who are typically somewhat suspicious and guarded in their interactions with strangers into patients who almost immediately bestow an inordinate level of trust on the strangers who care for them.
In addition, from his comments, it is clear that Fleck has understood both my negative and positive arguments for the distinctiveness of medical ethics and my distinction between professional roles and other roles. My negative argument consisted of counter-examples to illustrate ways in which medical professionals are expected to behave differently from others and, thereby, show that common morality does not provide the ethics of medicine. In spite of the efforts by Tuija Takala and Matti Hӓyry to debunk those examples, Fleck and I still find them telling, as I will explain.
In my paper, I granted that taking on any role involves a personal commitment to doing things or performing them with greater diligence and consistency than would otherwise be demanded of people in ordinary circumstances. Even though a person who assumes a role may have a stringent duty whereas others have freedom, aside from professions, roles are consistent with common morality in that a person who takes on a role is not called upon to do anything that is impermissible in common morality. Professional roles, however, involve duties that are incompatible with common morality. Fulfilling a professional duty can require a person to do things that are impermissible in everyday life or abstain from doing things that are acceptable or required in common morality. As Fleck’s examples show, medical professionals may have duties to hasten death (e.g., turnoff a ventilator or provide an increased dose of morphine for a fragile but competent patient in agony who requests it) that others would not be permitted to do. At the same time, a medical professional would violate duties by not offering dialysis treatment to a patient with end-stage kidney disease, even though others would not even be able to act on such requests. In the sense that the duties of medical professionals call for actions that are different or inconsistent with common morality, these species of ethics are incompatible with each other.
There is certainly significant overlap in what common morality and medical ethics would identify as right or wrong action, but the points on which one is more stringent than the other, and the positions on which they are diametrically opposed, show that common morality and medical ethics do not fit the same mold. As Fleck writes, medical ethics is not “just an elaboration of the tenets of common morality.”Footnote 7 In that sense, these two species of ethics are different from each other and they are incompatible. Nevertheless, society accepts and expects the ethical standards of medicine to be different from everyday ethics, so, in that sense, these two species of ethics coexist with very little tension between them.
Distinguishing professional roles from other roles sets the stage for my positive argument in support of the distinctiveness of medical ethics. I suggest that society allows professionals to employ powers and privileges that are forbidden to nonprofessionals, and grants them immunity from the standard penalties associated with such actions and the untoward consequences of employing their remarkable license. Those distinctive powers, privileges, and immunities are what make professions radically different from other roles. A profession’s exclusive powers and privileges are not allowed outside of the profession because they are inherently dangerous. In common morality, we therefore find no rules or principles to guide their use precisely because they are prohibited. Professional ethics is therefore needed to provide the standards that assure the safe employment of the profession’s unique set of permissions.
Cognizant of the moral responsibility inherent in wielding their uncommon liberties, professions create and publicly announce their creeds of ethics. As Fleck appreciates, “multiple species of professional ethics exist (and need to exist).”Footnote 8 Because professions can only exist when a society entrusts them to employ the powers and privileges that are necessary for serving some specific needs of the community, the morality of all professions must share the commitment to employ their particular powers and privileges in a trustworthy way and in the service of the community. The rest of a profession’s ethics reflect its specific focus, circumstances, and complexity.
Fleck grasps the point of my account of professions comprising only a narrow subset of roles. There is, however, a crucial element of my position that he seems to have missed. I count a group as a profession because the group is allowed powers and privileges that are typically prohibited. Even though ordinary language extends the title “professional” broadly to include people who perform a task as their job, I am constricting the term based on my criteria. In my use of the designation, the title “profession” is ethically significant because it implies both trust and fiduciary responsibilities.
So, I agree with Feck that medicine and law are professions, and I am open to argument on whether journalism is a profession, but I doubt that business is. I would not count the “learned professions” including economics, history, and philosophy as professions in my sense, because anyone may study a subject, develop mastery of a field of knowledge, or a skill. Society does not grant the learned professions powers and privileges that others are not permitted to employ. I would, however, include legislators, judges, and those who are delegated to serve under their authority as professionals because they are allowed extraordinary powers and privileges (e.g., to tax, legislate, and declare war) and therefore are ethically required to be trustworthy agents who uphold their fiduciary responsibilities.
Reply to Leslie Francis
Professor Francis acknowledges the importance of trust in my account of medical ethics. To be clear, yes, I am referring to what philosopher Annette Baier has called warranted trust.Footnote 9 I am also drawing on work by philosopher Onora O’Neill on the importance of trust and trustworthiness in the professions.Footnote 10 , Footnote 11 , Footnote 12 I regard all professional duties to be based on the trustworthy employment of the powers and privileges granted to professionals by society. That is why my list of duties of medical ethics includes first, “Seek trust and be deserving of it” as one of the two fundamental duties of the profession. The rest of the duties that I enumerate are either derived from the first two or specifications of what is entailed by the ethical use of medicine’s distinctive powers and privileges.
Francis takes issue with what she calls my “positive thesis… that precepts in medical ethics must be derived from an account of the special nature of what physicians do, and that this account is to be understood through an overlapping consensus of rational and reasonable medical professionals.”Footnote 13 Actually, my account is based on the powers and privileges that society allows the profession to employ in doing what they do. That said, Frances takes my 16 duties of medical ethics to be “effectively meaningless”Footnote 14 because ethical decisions should be informed by medical and social facts and because “answers cannot and should not rely solely on the expertise of medical professionals.”Footnote 15
Francis offers a dilemma of confidentiality raised by a contagious patient as an example that cannot be resolved by considering what a trustworthy medical professional should do. My approach actually acknowledges the complexity and contextuality of medical decisions. It requires a clinician to take all of the scientific and social facts into account and consider the entire range of foreseeable consequences from divulging patient information or upholding confidentiality. In fact, when I discuss confidentiality in my book, The Trusted Doctor: Medical Ethics and Professionalism, I analyze four case examples of how confidentiality issues may be resolved by taking the scientific and social facts into account.Footnote 16 Furthermore, the book includes an entire chapter on “Resolving Moral Dilemmas” to guide medical professionals in navigating conflicts of duty that inevitable arise in medicine. That chapter even includes a detailed analysis of social and medical factors involved in a confidentiality dilemma and explicitly discusses social judgments and attitudes as relevant considerations.Footnote 17 As I see it, medicine is not merely biological science; it is a socially created endeavor that employs the biomedical sciences in serving the interests of patients and society. That means clinicians must be informed about the social milieu and take into account social factors such as a patient’s values, goals, insurability, and access to resources, legal constraints, institutional policies, impact on the community and the environment, and so on.
Taking issue with my second fundamental professional duty, “to advance the interests of patients and society,”Footnote 18 Francis, on the one hand, suggests that physicians should narrowly concern themselves with “treating patients”Footnote 19 and exclude consideration of social benefit. On the other hand, she also suggests that ethical decisions have to take social circumstances into account. As infectious diseases demonstrate, and as the COVID-19 pandemic has dramatically revealed, decisions involving the allocation of scarce resources, disease containment, visitors to hospitals and long-term care facilities, and vaccination priority all involve medical professionals making judgments about benefits to patients and society. Some of those decisions require sacrificing the interests of one for the other.
Reply to Tuija Takala and Matti Hӓyry
I find Professors Tuija Takala and Matti Hӓyry’s table of historical theoretical influences on bioethics instructive and intriguing, and I cannot deny the Kantian, utilitarian, and Aristotelian influences that they recognize in my thinking. Yet, without taking issue with how their map situates these different philosophical positions, I do object to the oversimplification of some of my favorite authors. For example, Aristotle is profoundly interested in identifying principles of right action as well as cultivating the inclinations (i.e., virtues) that incline a person to do the right thing. And Kant explicitly discusses the importance of developing love for one’s neighbors as well as acting from a good will.
Turning, specifically, to their criticism of the counterexamples that I present in my negative argument to show the distinctiveness of medical ethics, perhaps I did not make my position sufficiently clear, and perhaps they are reading too much into my examples. Takala and Hӓyry object to all seven of my examples. I will reply to the kinds of objections they raise, one argument at a time and in the order they present them.
I agree that other professions have some duties that are similar to duties of medical ethics. I also maintain that all professions share similar versions of the same two fundamental duties, to (1) seek trust and be deserving of it, and to (2) use their powers, privileges, and immunities to advance the interests of individuals and society. So, yes, confidentiality is a duty for physicians, lawyers, and clergy because it is necessary for the provision of their professional service to society. Similarly, medical professionals and judges are also allowed distinctive powers and privileges. Members of those professional groups must maintain nonjudgmental regard because preferential treatment would undermine their ability to serve the interests of society. And neither medical professionals nor military professionals should employ their distinctive powers (e.g., dispensing poisons and dropping bombs) to the detriment of individuals or their society because professional duty prohibits doing so. My point is that professions have distinctive powers and privileges that require uncommon limitations on how they employ the freedoms that are uniquely theirs. To the extent that similar concerns arise in different professions, those professional groups will have similar duties. At the same time, those professional obligations do not generally apply to people outside of those professions.
Takala and Hӓyry complain that relying on scientific evidence is not a duty for medical professionals. Neither their assertion that it is often a good idea for nonprofessionals to base decisions on evidence, nor their assertion that medical professionals sometimes fail to uphold that responsibility, shows that clinicians are ethically free to make decisions that are not science-based.
Following Aristotle, I regard justice to be ethically required in interpersonal actions. Justice involves treating others as we should and giving them their due. Whereas imprudent actions may be a failure of a duty to myself, and thoughtless or cavalier choices may be imprudent, they need not violate a duty to others. For professionals who are entrusted to make decisions in the interest of others, however, offhanded or careless decisionmaking is a violation of duty. And for medical professionals, science is the standard that defines trustworthy decisions.
When it comes to my position on autonomy, I agree with Takala and Hӓyry that showing respect for a patient’s values and priorities is critical for establishing and maintaining patient trust. That said, when patients express a preference for a course that appears to oppose their interests, physicians have a duty to at least press them for their reasons. Doing so is paternalistic, but the insertion of a cautious probing question is a long way from presuming that patients who disagree are “nonautonomous.”Footnote 20 I am certainly not suggestion that clinicians should leap to that conclusion.
At the same time, because medical decisions can have serious consequences, and because patients who face serious medical decisions can be impaired by disease, medication, fear, or denial, or be confused by unfamiliar medical terms and misinformation, physicians need to inquire into the reasons for their patient’s refusal of a recommended treatment. Often enough, the patient’s values or reasons explain their choice. Frequently, there is time for the patient to mull over a decision without any seriously detrimental consequences. Overriding a patient preference when no justifying reasons are provided, and when a situation is critically urgent, and when a medical intervention is like to provide a great benefit and refusing it involves a likely and irreversible significant harm, can be a medical duty. Understanding that such rare circumstances do arise, society grants physicians (and no one else) the power to determine that a patient lacks decisional capacity and that the urgency and seriousness of the circumstances require imposing treatment over a patient’s objection.
Finally, Takala and Hӓyry fault me for ascribing an impossible duty to render aid to a fellow medical professional when summoned to assist in patient care. Acknowledging that I frequently take lessons from Kant, I admit to sharing their view of moral duty as limited by human capacities.Footnote 21 As Kant explained, “The action to which the ‘ought’ applies must indeed be possible under natural conditions.”Footnote 22
In that light my example was intended to make a far more modest point than what they presume. For the most part, when someone asks for your assistance, it would be nice for you to lend a hand, but you are free to refuse. In other words, Kantian beneficence is an imperfect duty. Yet, when a nurse asks for help from another nurse in starting an intravenous medication because he cannot find the vein, or when a surgeon asks another surgeon for assistance because she cannot close the wound, the requested medical professional has a perfect duty and, to the extent that they can (i.e., yes, ought implies can), they must provide their assistance. In my eyes, the difference between “it would be nice if you would” and “it is your duty to” marks a significant difference between the ethics of common morality and medical professionalism.
Reply to Francis, Takala, and Hӓyry
Finally, Professors Francis, Takala, and Hӓyry all take issue with my claim that the ethics of medicine “is constructed by the profession for the profession.”Footnote 23 Because medical professionals understand the substance of their powers and privileges, what must be done to make effective use of them, and the potential dangers of misusing them, better than those outside of the profession, and because their expertise, experience, and professional vantage point provide them with a unique perspective for evaluating professional behavior, I maintain that only they are adequately prepared to identify what the constraints on their professional behavior must be. None of that however denies the relevance of social context or patient perspective which must always be included considerations.
A COVID-19 example may help clarify my position on this issue. Early on in the pandemic, most of us outside of medicine did not understand the relevance or necessity of “flattening the curve,” but medical professionals did. They had the expertise and experience to recognize that flattening the curve would be critically important for serving the interests of both individual patients and society. They therefore had the job of explaining the purpose of flattening the curve to the public and encouraging society to accept it as a goal for social policy. Formulating the directive comes from the profession, but professionals have the job of sharing the justifying rationale with society to gain social endorsement for their recommended policies.
Similarly, with the interests of patients and society in mind, medical professionals identify and define their professional duties. When medical professionals publicly declare the duties that society should expect them to uphold in an oath or in posting a professional code on a medical association website, society is invited to endorse and accept those standards as reasonable. Since at least the time of Hippocrates, that is how confidentiality, evidence-based practice, truthfulness, and the rest have come to be, and known to be, duties for medical professionals. That is why patients and society expect those professional commitments to be upheld, aside from extraordinary circumstance that society can accept as justifying exceptions.
Concluding Thoughts
As Professors Takala and Hӓyry note in their conclusion, offering a new theory of “medical ethics is an ambitious undertaking.”Footnote 24 My paper, “Medical Ethics: Common or Uncommon Morality” presents a sketch of the argument for my heretical position that medical ethics is not a piece of common morality but an autonomous domain of ethics. As a sketch, many of the details and nuances are omitted, claims are not made as clear as they need to be, and there is insufficient space for all of the illustrative examples that are needed to flesh out how points are to be understood and how the enumerated duties are to be applied. My hope is that my recently published book, The Trusted Doctor: Medical Ethics and Professionalism, fills in many of those gaps and provides the clarification would have aided my commentators.
In closing, I once again express my gratitude for my friends’ commentaries and the opportunity to engage in argument and rebuttal. I fully appreciate the points that they note as issues requiring elaboration and clarification, and I look forward to further engagement in critical philosophical debate.
