HELP 2nd Series: BASIC MEDICAL ETHICS

June 28-30, 2018

1. The Nature of Ethical

Dilemma in Medicine
2. Defining Biomedical Ethics
Discourse
Prof. dr. Mohammad Hakimi
Center for Bioethics and Medical Humanities
Faculty of Medicine, Public Health and Nursing
Universitas Gadjah Mada

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 dilemma

• Any difficult or perplexing situation or problem;

in bioethics, a situation requiring a choice
between equally undesirable alternatives
Miller-Keane Encyclopedia and Dictionary of Medicine, Nursing, and Allied
Health, Seventh Edition. © 2003 by Saunders, an imprint of Elsevier, Inc. All
rights reserved.
• Predicament caused by confliction, difficult, or
otherwise unsatisfactory choices. (G. conflict of
choices, fr. di-, two, dual + lēmma, proposition)
Farlex Partner Medical Dictionary © Farlex 2012

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 discourse
Noun
1. written or spoken communication or debate
Synonym: discussion, conversation, talk,
dialogue, conference, debate, consultation
verb
2. speak or write authoritatively about a topic
Synonym: give a talk, give a speech, lecture

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Ethical Dilemma:
Deciding People’s Fate
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You are on a sinking ship and there is only
ONE lifeboat available. Posted on the side
of the lifeboat is a sign which reads,
“Maximum Occupancy” - 8 persons…this
boat will sink if over occupied.” Standing on
the deck and waiting on board the lifeboat
are nine adults and one child. You must
decide who dies. Be prepared to defend
your decision.

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 Persons on deck
1. You
2. A young mother and her infant son
3. A 75 year old retired physician
4. His 68 year old wife
5. A 17 year old, pregnant girl (this
counts as one person)
6. A professional athlete (male)
7. A member of the clergy
8. A middle aged school teacher and
9. Her husband, a banker
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 Ethical issue in our practice
• Did you recognize it?
• Did you know how to address it?
• Did you have an organized framework?
• Did you know what to say to the patient and
his or her family?
• Did you know what to do?
• Did you feel comfortable and confident in this
aspect of your practice?

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 Introduction
• For most of the history of western medicine,
ethics received relatively little attention because
the right course of action seemed obvious.
• A short list of basic rules (e.g., do no harm, put
the patient’s welfare before one’s own) sufficed
to guide medical professionals.
• Paternalism reigned supreme, placing
responsibility for medical decision-making
entirely in the hands of physicians.
• Over time, however, the situation has become
substantially more complicated.
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 Reasons for evolution in medical ethics

1. Some historic assumptions have not

translated well into the modern world.
For instance, the overriding emphasis on
beneficence (taken to its extreme in the form of
paternalism) has gradually given way over the last
century to a respect for patient rights and
personal choice (i.e., autonomy).

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 Reasons for evolution in medical ethics

2. In the aftermath of events such as the Nazi

prisoner experiments and the Tuskegee
syphilis study, physicians can no longer be
assumed to do the right thing, even when it
is obvious.

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 Reasons for evolution in medical ethics

3. Technologic developments in the practice of

medicine have created an unprecedented
level of complexity, such that well-
intentioned, principled clinicians can
reasonably disagree as to the best course of
actions in ethically fraught situations.

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 Ethical dilemma
• The bioethics literature has defined ethical dilemmas in
terms of conflict and choice between values, beliefs and
options for action.
• While some of the views about the nature of their ethical
dilemmas certainly accorded with this definition, other
explanations of the ethical nature of their problems
revolved around the publicity associated with the issues,
concern about relationships with patients, and anxiety
about threats to integrity and reputation.
• The variety of views about what makes a problem a moral
problem indicates that the moral domain is perhaps wider
and richer than mainstream bioethics would generally
allow.

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 Ethical dilemmas occasioned by the
explosion of technology
• Prior to the widespread use of ventilators and
artificially administered nutrition and hydration,
there was no occasion for debate as to the
definition of death or to professional obligations
toward patients in a vegetative state.
• Questions of decision-making capacity, quality of
life, and even personhood now arise frequently in
the practice of neurology and require a
structured ethical response.

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 Evidence-Based Medicine
• In the midst of technologic progress and
increasing reliance on evidence-based
medicine ethical dilemmas stand out because
they deal with conflicts of values, which are
neither measurable nor externally verifiable.
• Unlike other decision-making fields that
emphasize quantitative, structured analysis,
ethical decision-making is qualitative and
narrative.

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 Ethics teaching
• Even though ethics is taught at all medical
schools in the United States and Canada and
most postgraduate residency program, many
physicians possess only a rudimentary
appreciation of the subject.
• The four principles of bioethics and the four-
quadrant approach to ethical dilemmas may be
easy to remember, but applying these constructs
to real-life situations requires nuance, expertise,
and wisdom.

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 Ethics teaching
• Sometimes the constructs are so theoretical as to
defy application to particular situations, and at
other times the obligations that flow from them
are clear but conflict with other obligations.
• An effective method of resolving ethical
dilemmas must take theories into account but,
more importantly, provide practical guidance to
patients, families, and medical professionals.

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 What makes a problem an ethical
problem? An empirical perspective on the
nature of ethical problems in general
practice (Braunack-Mayer, 2001)
• The findings of this study suggest that
mainstream bioethics does contribute in
important ways to the delineation of ethical
problems, but that other, broader,
conceptions need also to find a voice within
bioethics.
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Ethical problems discussed by GPs
• Relationships with colleagues 4
• Paternalism 3
• Abortion 3
• Confidentiality 2
• Treating family and friends 2
• Chronic drug abuse 2
• Patients changing doctors 1
• Euthanasia 1
• Making mistakes 1
• Domestic violence 1
• Concealing information for a patient 1
• Sickness certificates 1
• Worker’s compensation 1

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 Resolving ethical dilemmas
• Dispel the common misperception that ethical
analysis is idiosyncratic or overly theoretic by
providing a structured approach for analyzing
moral problems in the practice of medicine.

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 Resolving ethical dilemmas
• An approach which bears striking (and
intentional) resemblance to the systematic
evaluation of patients used by clinicians will
be presented.
• In addition, this approach provides a method
for resolving ethical disagreements, which
often persist following a thoughtful and
comprehensive analysis of a clinical situation.

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 Resolving ethical dilemmas
• Unlike academic discussions of hypothetical
ethical dilemmas, clinical ethics involves the
very real problems facing patients, families,
and clinicians.
• As such, it is not sufficient to recognize the
complexity of a given situation by highlighting
the respective arguments for and against a
proposed course of action.

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 Resolving ethical dilemmas
• A decision must be made, often choosing
between alternatives of varying degrees of
undesirability.
• As such, clinical ethics has been described as
the search for the “least bad option,” since, if
a good option were available, someone would
have already identified it.

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 A structured approach to analyzing
ethical dilemmas
• Over the past three decades, many
approaches to analyzing clinical ethical
dilemmas have been proposed.
• there are profound similarities between these
methods, especially in the preliminary steps
they advocate.

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 A structured approach to analyzing
ethical dilemmas
• Thus, while some might reasonably question
the applicability and generalizability of the
conclusions reached by these methods, the
method of reaching these conclusions is
remarkably standardized and thus not open to
accusations of idiosyncrasy.

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 A structured approach to analyzing
ethical dilemmas
• In order to maximize applicability in the day-to-day
practice of medicine, the methods proposed tend to
bear significant resemblance to the time-proven
clinical assessment of a patient: subjective report
(medical history), acquisition of clinical data (through
physical exam, and laboratory and radiologic
evaluation), assessment, and plan.
• As such, these methods should appear familiar and
reasonable to clinicians, as they bring to bear well-
honed skills traditionally used for diagnosis and
treatment, now applied to the task of identifying and
resolving ethical dilemmas.

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 A structured approach to analyzing
ethical dilemmas
The approaches involve the following steps/
components:
1. Clarify and classify the dilemma
2. Review existing information
3. Acquire additional, relevant information
4. Analyze the ethical issue, with reference to
relevant legal and professional considerations
5. Formulate response, consider criticisms, and
identify lessons learned

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Principles/duties/concepts of medical
ethics
• Duty to provide care
• Assess decisional capacity
• Confidentiality
• Assess surrogate
appropriateness
• Truth-telling
• Respect for autonomy (patient
goals)
• Minimize harms
• Beneficence/caring (team
goals)
• Duty to warn
• Nonjudgmental regard
• Professionalism
• Trust/fiduciary responsibility
• Informed consent
• Justice (fair allocation of
scarce resources)
• Justify paternalism
• Futility (furthers no goals)
• No conflict of interest
• Professional competence
• Evidence-based practice
• Responsibilities to peers and
institutions
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Relevant legal and professional
considerations

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 Rights
• While there has long been a recognized need for
clinicians and patients to engage in shared decision-
making nevertheless, situations occur where patients
and clinicians disagree as to the appropriate course of
action.
• In such situations, the rights of the patient and family
might be seen as in conflict with the rights of the
professionals involved.
• While one could generate a long list of relevant human
and professional rights for the purposes of this
discussion we will focus on patient autonomy and
professional autonomy.

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 Patient autonomy
• The application of this right is not as clear cut as it first
appears.
• One reason for this is that “autonomy” can be
understood in two different senses.
• Classically, an “autonomous” choice was not only a
freely made choice, but also a rational one.
• On this understanding, an ill-considered, impetuous
decision would not be considered truly “autonomous.”
• In the medical literature, however, autonomy is often
reduced to a choice made without coercion and
without significant cognitive impairment, regardless of
the negative consequences for the patient.

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 Patient autonomy
• The concept of autonomy also needs to be applied
differently in situations in which a patient is requesting a
treatment, compared to one in which the patient is
refusing a treatment.
• Here the distinction between positive and negative rights
is critical.
• A negative right is one of noninterference, according to
which others cannot stand in the way of a person’s
obtaining something.
• A positive right, on the other hand, is a right of
entitlement, which necessarily incurs an obligation on
the part of another (often the government) to help
people obtain that to which they have a right, if they are
unable to do so on their own.
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 Professional autonomy
• The right to decide for oneself (e.g., autonomy) is a basic
human right, and as such it is considered inalienable and
nonnegotiable.
• Professional rights, on the other hand, are more
circumscribed, based on the social contract under which
that profession functions.
• Physician autonomy is often manifested in the form of the
professional right of conscience.
• If patients do not have an absolute right to any treatment
they request, to what degree should the physician’s own
moral beliefs be taken into consideration when determining
whether to provide that treatment?

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 Professional autonomy
• Often a physician’s refusal to provide a specific
treatment is a biotechnical decision that is
defensible based on the best available evidence.
• In other cases, however, the physician’s refusal is
based on ethical rather than empirical grounds.
• While some defend the physician’s right to
refuse, others assert that someone who is
unwilling to provide requested legal procedures
should essentially choose another profession.
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 Professional autonomy
• In balancing the patient’s right of autonomy and the
clinician’s right of conscience, the former typically takes
precedence based on the fiduciary responsibility of the
physician to the patient.
• In most situations, the physician may be able to transfer
care of the patient to a colleague who does not hold the
same moral reservations about the requested procedure.
• Where that is not possible – and the physician’s refusal
essentially determines that the patient cannot receive the
procedure – the physician may be obligated to provide the
treatment, as long as it is legal and consistent with the
standard of care.

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 Duties
• In addition to the rights of patients as human
beings and to physicians as conscientious
moral individuals, there are also specific
duties which the physician owes to the patient
by virtue of the professional relationship.
• Several of these are directly relevant to the
resolution of ethical dilemmas.

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 Nonmaleficence
• Perhaps the most compelling duty of a physician to a
patient is to “first, do no harm”.
• There may exist debate as to a patient’s right to a
certain intervention and whether that intervention
holds out the prospect of benefit, but before
proceeding with any intervention the physician must
be confident that it will not cause undue harm to the
patient.
• This duty applies to nearly all medical procedures,
since it is difficult to imagine a procedure that does not
hold out some risk of injury or suffering, however
minor.

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 Nonmaleficence
• The duty of nonmaleficence is an important counter-
balance to physicians’ recognized tendency towards
action, which some have termed “commission bias”.
• This tendency – especially when coupled with the
patient’s autonomous request for a specific treatment
– can make it very difficult for the physician to decline.
• Yet when there exists a significant risk of harm –
especially without prospect of proportional benefit –
physicians are permitted (even obligated) to refrain
from acting, or at least defer action until the
risk/benefit ratio improves.

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 Truth telling
• Another duty the physician has toward patients and
family is that of veracity, or truth-telling.
• This duty relates to the patient’s right of autonomy,
since it is not possible to exercise that right if the
patient does not have an accurate sense of the present
situation, future prognosis, and options available.
• One can imagine situations, however, when this duty
seems to conflict with other duties or responsibilities.
• For instance, in situations where certain information is
deemed potentially detrimental to a patient, some
physicians have invoked “therapeutic privilege” in
withholding that information.

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 Confidentiality
• Treating patient information as confidential has been
an integral part of medicine since the age of
Hippocrates, and is also explicit in the law.
• There are, however, specific legal obligations which
supersede the patient’s right of confidentiality, namely
the duty to warn or protect others at risk of harm, as
well as the duty to report certain situations or results,
such as specific communicable diseases or the abuse or
neglect of a child or vulnerable adult.
• Generally, the duty of confidentiality is compelling
unless there is a specific legal requirement to breach
that duty.

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Consequences

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 Beneficence
• In addition to the rights of patients and physicians, and
the professional duties of physicians toward their
patients, another major consideration in examining an
ethical decision is the expected outcome of that
decision.
• Physicians are tasked with determining a course of
treatment that not only reflects the patient’s goals, but
also represents the optimal balance of benefits and
burdens.
• While the future cannot be known with certainty,
recommendations should be based on the best
available evidence.

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 Virtues
• Up to this point, the analysis has focused on rights,
obligations, and outcomes, without taking into account the
motivation behind the actions.
• By contrast, some commentators place virtue in a pre-
eminent position in evaluating the propriety of a certain
decision, citing specific qualities of exemplary physicians, such
as compassion, fidelity to trust, and practical wisdom.
• Others situate virtue in a confirmatory position, asking
whether a presumptive decision is what “a consensus of
exemplary doctors would agree to”.
• Even scholars associated with supposedly “rival”
methodologies, such as principlism, recognize the importance
of virtue in determining an appropriate course of action.

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 The use of cases
• Some approaches to ethical dilemmas do not
emphasize principles at all.
• Casuistry, for instance, reasons inductively from
“paradigmatic cases,” using analogy to determine
whether a proposed course of action is ethically
acceptable.
• While some scholars criticize such an approach
precisely because it appears to be devoid of any ethical
theory, others appropriately claim that casuistry is
“theory-modest”, in that it takes a structured approach
based on the belief that ethics is “a series of practices
that arise from human moral experience”).

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 Formulate response, consider criticisms,
and identify lessons learned
• The approach outlined here attempts to divide
considerations into manageable and applicable
divisions – rights, duties, consequences, virtues, and
cases – while prioritizing arguably the most important
elements within each category (such as the right of
patient autonomy, the duty of nonmaleficence, and
goal of maximizing beneficial outcomes).
• Such a structure is helpful in identifying the nature of
an ethical dilemma by delineating relevant
considerations and generating potential responses.
• Because this approach does not rely exclusively on one
methodology, it is valuable in forging consensus.

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 Next steps in the absence of
resolution
• Despite its comprehensiveness, this approach is no guarantee
of reaching consensus regarding an ethical dilemma.
• In such cases, it is important to review the steps noted above
to determine if any relevant considerations have been
overlooked.
• Can more information as to the patient’s preferences or the
medical context be acquired? Have all persons with relevant
knowledge (whether personal or professional) been
consulted? Have any relevant considerations been overlooked
or misprioritized?
• If resolution is still not possible, certain intermediate steps
can be taken while the process of ethical deliberation
continues.

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 Temporize
• The first step is to buy time, if possible.
• Some situations are, by nature, not critical,
and thus deferring a decision may be the
wisest course of action.
• While this approach runs counter to the
“commission bias” noted above, it is often the
most prudent response which can, at the very
least, spare the patient from potential
unnecessary harm.

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 Options to avoid
• Clinical ethics tends to focus on identifying a
range of ethically permissible options, rather than
one clearly superior option.
• Thus, even if it is not clear what the optimal
course of action is, it may nevertheless be clear
what some clearly unacceptable responses are.
• At the very least, identifying these responses
prevents obvious errors, and at the same time
narrows the remaining list of possibilities.
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 Worst option
• While most potential responses to an ethical dilemma can be
ranked on a spectrum of varying propriety or acceptability, there
may be some options which definitely violate sacred oaths or
considerations, and thus can be excluded from consideration.
• Among these options are overriding the informed, voluntary refusal
of a patient with clearly intact decision-making capacity (a violation
of autonomy), putting a patient at disproportionate risk of harm (a
violation of nonmaleficence), and explicitly lying to a patient (a
stark failure of veracity).
• While it is true that duties are generally prima facie in nature – in
other words, they are compelling unless another more pressing
duty supersedes them – one could reasonably argue that some
obligations are so sacred that it is difficult (or perhaps impossible)
to imagine a realistic situation when that duty would not take
precedence.

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 Impractical solutions, or failure to
consider potential alternatives
• An appropriate solution to an ethical dilemma
must not only be ethically acceptable, it must
also be practical.
• It is all well and good, for instance, to conclude
that a reluctant adolescent patient should be
compelled to undergo chemotherapy for a
treatable malignancy, but that conclusion does
not answer the question of how to achieve this
goal over the patient’s objections.
• Overreliance on theory to the exclusion of logistic
considerations is not helpful.

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 Impractical solutions, or failure to
consider potential alternatives
• In addition to avoiding practical solutions, it is
important not to overlook any potential
alternatives.
• This approach may involve “thinking outside
the box” to identify previously unconsidered
options, and at other times carving out a
middle ground.

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 Rationing at the bedside
• The last pitfall to avoid is allocation at the bedside.
• The rising cost of medical care is well known, as is the
proportion of those expenditures – especially as a
fraction of medical care spending – devoted to care in
the last 6 months of life.
• It is tempting, therefore, to ration expensive but
potentially beneficial healthcare on a case-by-case
basis.
• In situations in which ethical consensus is not currently
achievable, the drive to rein in costs or shift resources
to patients with a better prognosis may seem
compelling.

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 Conclusion
• Given the highly personal and qualitative nature of the
enterprise, ethical deliberations do not lend themselves to
linear algorithms and neatly wrapped solutions.
• While the approach presented here does not guarantee a
universally accepted solution to ethical dilemmas, it does
represent a structured and comprehensive response.
• By incorporating elements of several methods of ethical
analysis – and by attempting to balance inductive and
deductive approaches – this approach allows an ethical
dilemma to be identified, clarified, and analyzed from
multiple perspectives.
• And in situations where resolution is not forthcoming,
intermediate steps provide practical guidance while additional
information is acquired, and further discussions pursued.

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 References
• Braunack-Mayer AJ. What makes a problem an
ethical problem? An empirical perspective on the
nature of ethical problems in general practice.
Journal of Medical Ethics 2001;27:98–103.
• MacAuley RC. The analysis and resolution of
ethical dilemmas. Chapter 2. Handbook of Clinical
Neurology, Vol. 118 (3rd series). Ethical and Legal
Issues in Neurology. J.L. Bernat and R. Beresford,
Editors. Edinburgh: Elsevier B.V. 2013.

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