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Just Doctoring: Medical Ethics in the Liberal State.

Troyen Brennan and Ezekiel Emanuel--both M.D.s with other advanced degrees, both affiliated with Harvard's Division of Medical Ethics, and both past Fellows in its Ethics and the Professions Programs--have written books with nearly identical subtitles. Both emphasize that medical practice does not take place on a desert island, but in institutions shaped and constrained by economic and political forces, principles, and values. For both, medical ethics is a subspace of political philosophy; both reach for "communitarian" solutions that go beyond classical liberalism. Both make ambitious claims.

Despite these similarities, these are strikingly different books in style, tone, and content, proving that no one should judge a book by its subtitle. Brennan's central thesis is that we must replace an old medical ethics, based on "beneficence" and a "patient comes first" paternalism, with a "new" medical

ethics (dubbed "just doctoring"), which better reflects "the public morality of liberalism" (p. 23). Just doctoring rejects paternalism, reinforces patient autonomy, respects the resources constraints of "market justice," avoids conflicts of interest in the medical practice, and endorses and "altruistic 'patient comes first' ethic." This ethos obliges practitioners politically to shape a system and a medical community that is concerned about justice and nurtures that altruism (p. 95). Brennan surveys the implications of just doctoring for informed consent (his most interesting chapter), quality of care, AIDS, limits on care, and conflicts of interest. Despite the packaging Brennan offers, this is well-trodden ground--much more heavily traveled than Brennan indicates in his eclectic survey of existing accounts.

Brennan seems undecided between offering us a historical explanation and a justification. At points he only seems to be claiming that the inexorable intrusion of the apparatus of the liberal state on medical institutions forces us to embrace just doctoring, which simply "fits" better with the liberal system than the ethics of beneficence. If so, the historical thesis is remarkably undeveloped. Why has the market asserted itself so forcefully in some liberal states and not others? Why have we not emphasized equality in health care as much as other states? (Paul Starr, on whom Brennan draws heavily, is more careful to explain why American medical institutions developed so differently from European and British ones.) In any case, why settle for one historical development rather than strive for another?

Ultimately, we require a justification. Brennan must argue philosophically in his own voice in favor of some version of modern liberalism and show in detail how it uniquely support just doctoring. Unfortunately, he fails to probe the strength or weakness of the liberal theory that he paraphrases, and he omits the careful argument necessary to show that the theory yields specific conclusions--for example, about how to solve the problem of limits to care (an issue that vexes Emanuel).

Brennan claims that the altruistic "patient comes first" ethos involved in just doctoring "goes beyond liberalism" and requires a "communitarian project" by practitioners (p. 87). For Brennan, a physician who leaves a dinner party to reassure a patient moves "beyond the behavior expected of members of the liberal state" (p. 92). But, trivially, any special obligation we undertake not binding on every citizen would in this sense "take us beyond liberalism," yielding a paper-thin communitarianism. Thus all special obligations physicians owe to their patients (or lawyers owe their clients or teachers their students) "go beyond liberalism," even where negotiation between the profession and liberal society sets the limits of these obligations.

Brennan's invocation of communitarianism may result from confusing obligations and motives. Physicians' motivations in undertaking their special obligations to patients may or may not be altruistic, but their obligations are to act in patient-regarding ways. To counter the suggestion that physicians who do not "partake at all in the notion of altruism" (p. 159) might not have an obligation to treat HIV-infected patients, Brennan replies that modern liberalism requires equal concern and respect, even without the addition of a communitarian commitment to altruism, and this is sufficient to prohibit physicians from refusing to treat HIV patients. But "equal concern and respect" do not require physicians to face risks from HIV patients unless they have already accepted an obligation to face some level of risk from all patients. Because physicians (whatever their motives) undertake that obligation on entering the profession, they cannot then refuse HIV patients, while accepting comparable risks from other patients. Brennan is right that we do not need a communitarian commitment to altruism to ground the prohibition on refusals to treat HIV patients, but for the wrong reason.

Whereas Brennan's appeal to communitarianism is simply an odd-on to a modern liberalism he accepts, Emanuel argues passionately, sometimes brilliantly, that liberalism is unable to solve two central and urgent problems of medical ethics. Specifically, liberals (to scan properly, Emanuel's use of the term must sometimes be read with the vehemence, although not the politics, we expect from Pat Buchanan or Dan Quayle) cannot solve crucial questions about the termination of treatment for incompetents or the allocation of medical resources because they are committed to being "neutral" about what counts as a good life, at least for purposes of justice. Only communities committed to certain values can face these issues squarely and with integrity. Indeed, since we live in pluralist societies, we must tolerate many different communitarian responses to these problems, each driven by a commitment to a particular conception of the good life. Sensitive to the criticism that communitarians often do not really say what they mean by a community, Emanuel provides details, at least for the case of health care, sketching a system through which different "community health programs" attempt varied approaches to termination and rationing problems.

Before testing Emanuel's communitarian medicine, consider his diagnosis of the liberal's illness. He argues it is "incoherent" to attribute a right to refuse treatment to irreversibly incompetent individuals, as the New Jersey court did in the Quinlan case. The point of a right to refuse is that it ensures individuals can "exercise and realize their capacity for self-determination"; we justify saying there is such a right by showing how it supports the ideal of the person as free, as having "the capacity to choose, to reform, and to pursue his own conception of a meaningful life" (p. 53). With irreversible loss of the capacity, there is no point in asserting the right. Does Emanuel prove too much here? Do incompetents lose all rights, since the justification for any of these rights may make reference to capacities incompetents lack? If so, then why are we constrained to pursue the best interests of incompetents, rights aside, as Emanuel later concludes? Even if we agreed with Emanuel that an adult who becomes irreversibly incompetent loses her right to refuse, we might think that the right way to treat her would be in accord with her expressed wishes (advance directives) or with our best judgement about how she would want to be treated ("substituted judgement").

Emanuel argues that "substituted judgements" are untenable whether or not incompetents ever had the capacity to develop relevant intentions. The problem is not just one of abuse. Rather, the assumption that we can extrapolate from a person's settled preferences (her past conception of a good life) to what she would want done about terminating treatment violates the underlying liberal conception of the person as someone capable of "revising" her conception of the good (p. 69). It "fixes" the person by reference to a conception of the good the person holds at a given time, whereas liberal theory (Emanuel believes) refuses to constitute persons in that way for matters of public policy. Emanuel's argument misapplies a liberal concern (the tail wagging the dogma?): for certain purposes, it is important to remember that people can revise their plans of life, but this does not mean that in responding to the immediate problems of individuals, we must always step back from the conception of the good expressed over their course of life and refuse to recognize their wishes. Here, as elsewhere, Emanuel uncharitably puts liberalism in a strait jacket and then complains it cannot move its arms.

We are forced, Emanuel concludes, to adopt a "best interests" standard, but that standard presupposes a way of saying what quality of life is best for this person (p. 73). For society to make a personal quality-of-life judgment for an incompetent, it must have what we lack, a socially shared citerion for what count as benefits and burdens. Since liberalism must be "neutral" about competing conceptions of the good (another use of Emanuel's strait jacket?), it cannot solve the termination of treatment problem. One possible line of reply to Emanuel's deep and interesting challenge is that, even though there are plural conceptions of the good, there may be an "overlapping consensus" on some central features of what count as benefits and burdens, permitting at least a partial solution to the problem. In other areas of public policy, in torts, for example, we also characterize benefits and burdens in a way that yields policy despite pluralism.

Just as liberal "neutrality" blocks solutions to termination of treatment problems, so too it makes it impossible to specify limits on care in the face of scarcity. We can shape packages of medical services in rather different ways, each delivering different kinds of benefits, including opportunities, to different categories of people. One package might favor acute care over long-term care; another might do the opposite; another might emphasize services that promoted independent living; yet another might select services by cost-effectiveness criteria, giving no particular priority to those who were sickest. According to Emanuel, we cannot decide among these benefit packages without appealing to a robust conception of the good, contrary to the constraint of liberalism. Moreover, a criterion (such as mine in Just Health Care) for defining the benefit package according to its ability to protect individual's fair shares of the "normal opportunity range" does not tell us which opportunities to protect when scarcity prevents us from equally protecting everyone's.

Emanuel is right that the equal opportunity account does not tell us just how to limit services under resource constraints. The problem, however, not only has a different source from the specific criticisms Emanuel offers of my account, but it is a very general problem that infects a broad range of accounts, whether or not they are liberal; the problem also arises with regard to other goods than health care. We need, I suggest, a theory of rationing that answers questions such as these: When is it fair to ask people to give up equal chances at a scarce good to promote better outcomes using it? How much priority should we give to those who are worst off when we can produce greater benefits by giving a service to those already better off? When should modest benefits to the many outweight significant benefits for the few? What fair procedures should we use when we have no other way to give answers to these questions? Appeals to equality of opportunity do not by themselves answer these kinds of questions. Nor do appeals to other deontological principles, which is why the problem is so general. For example, the same questions face us when we try to ration legal services, abiding by the principle that all must be equal before the law. The incompleteness Emanuel ascribes to the equal opportunity account, and to liberalism more generally, derives from a general incompleteness of distributive theories that do not incorporate a theory of rationing. Even if we adopted a particular conception of the good that favored a particular rationing scheme, we would still face the problem of incomplete determination I sketch here. Communitarians in general can no more solve the problem of rationing by direct appeal to their values than adherents to liberal principles.

Is Emanuel's communitarian cure worse than the liberal disease it treats? Emanuel proposes that we establish a universal access voucher system entitling every individual to join a "community health program" (CHP). Members of each CHP would "deliberate democratically," relying on consensus, not mere majoritarianism, to make decisions about allocating health care services. Since different communities have fundamentally different values, "Let a thousand flowers bloom."

It is not clear, however, how Emanuel derives a universal entitlement to participation in this multi-flowered health care system without relying more explicitly on the very liberalism he finds theoretically and practically unacceptable. He does imagine that liberal communitarians will all recognize certain basic rights, necessary for democratic deliberation. This feature distinguishes his position from other communitarians. Nevertheless, the rights he lists (p. 169) do not include welfare rights, and it is unclear how to derive welfare rights from the undeveloped liberalism Emanuel attaches to his communitarianism. It is also unclear why Emanuel believes that geographically limited CHPs (p. 185), organized around preexisting neighborhood health centers, unions, community hospitals, or HMOs, are likely to contain people who share the same conception of the good in a highly pluralist society. In large metropolitan areas, some CHPs might form around shared values, but that is an unlikely event in most contexts. More troubling are the exclusionary powers of CHPs. To protect the "integrity" of their conception of a good life, Emanuel admits, a lesbian CHP might exclude men, even if they agreed to live by the policies of the CHP, or a Hispanic CHP might exclude those from other cultures who might want to perpetuate their own traditions. Could an Aryan CHP exclude blacks and Jews because they undermine the "integrity" of a group interested in community living built around "shared racial values"? Emanuel is unclear, but this liberal gardener would prefer to pull some flowering weeds.

There may be a point of convergence, however, between a liberal account and Emanuel's liberal communitarianism. We may have to rely on procedurally fair ways of resolving disputes about limiting services, either because that is what rationing theory requires, or because we cannot construct such a theory. What is not obvious is that liberals must insist that such procedures yield decisions that apply uniformly to the whole population. Local variation might be accepted, especially since the reliance on fair, democratic procedures means there is a class of fair outcomes. Liberalism with local variation might avoid the difficulties facing Emanuel's account.

Whatever my disagreements, I heartily recommend Emanuel's book. It provides insight even where arguments fail, and Emanuel's energy and passion make the book engaging reading.
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Author:Daniels, Norman
Publication:The Hastings Center Report
Article Type:Book Review
Date:Nov 1, 1992
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