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Still saving the life of ethics.

Still Saving the Life of Ethics

Back when medicine was saving the life of ethics and offering refuge to moral philosophers, who brought with them their exotic languages and customs (but alas no cuisine), and ethics committees across the land were gathering around insensate patients, incanting words like deontology, teleology, beneficence, autonomy, and paternalism, the textbooks were of the trickle-down variety, presenting lofty moral principles as decision-making guides for resolving specific dilemmas in the clinical setting. Fine examples of such books continue to be issued and reissued, but as James Childress acknowledges:

The difficult question is not whether to invoke or apply principles and rules but rather which rules and principles should be adopted, how they should be interpreted, how much weight and strength they should be accorded, which have priority in a conflict, and in what relations and situations they apply. (In Robert M. Veatch, ed., Cross Cultural Perspectives in Medical Ethics: Readings. Boston: Jones and Bartlett, 1989.)

One recent book starts at the bottom, at the case level, and therefore is no less than revolutionary: Albert R. Jonsen and Stephen Toulmin's Abuse of Casuistry (Berkeley and Los Angeles: University of California Press, 1988). Its title seems designed to send it slipping into obscurity--which would be a shame, I think, because the book provides a kind of basic science for practitioners of clinical ethics. Elegantly written and scholarly, it traces casuistry from its rise in classical Greco-Roman times through several centuries of Christianity to its corruption and dishonor under the scornful gaze of Pascal in the seventeenth century. Casuistry, in the authors' words, is:

the analysis of moral issues, using procedures of reasoning based on paradigms and analogies, leading to the formulation of expert opinions about the existence and stringency of particular moral obligations, framed in terms of rules or maxims that are general but not universal or invariable, since they hold good with certainty only in the typical conditions of the agent and circumstances of action.

They trace this form of practical reasoning (phronesis) to Aristotle, who believed that "ethics deals with a multitude of particular concrete situations, which are themselves so variable that they resist all attempts to generalize about them in universal terms." It is similar to the reasoning of the Talmud, case law, and general medical decisionmaking, which is why it serves clinical ethics so well.

In matters of putting off and bringing on death, the most important recent publication took place not in a medical or ethical journal but in the record of the United States Supreme Court, when it decided the Cruzan case. Although legal scholars are giddy about the Court's discovery of a Constitutional right to refuse medical attention even where it could prolong or save one's life, the discovery is less significant to physicians and patients, since the right has been confirmed again and again in courts and legislatures around the country and endorsed by authoritative medical societies. The damage the Court has done in Cruzan is to allow states to impose "clear and convincing" standards that in my view could be impossible to meet even with duly executed living wills. For example, Mary O'Connor, a New York hospital worker, repeatedly told friends and family that she would not want to be kept alive by medical interventions if she were in a helpless condition similar to those which she witnessed daily. But her statements were deemed by the court to be unclear and unconvincing because she did not predict her own circumstances with sufficient exactitude. If a medically experienced person cannot find words that meet the clear and convincing standard, who can? The answer, of course, is that the courts will have to decide. Hence, if other states follow Missouri's lead in adopting "heightened evidentiary requirements," not to mention state-imposed vitalism, we will probably see more and more such complex and poignant decisions made, not by intimately involved families and physicians, but by judges and juries with varying and often irrelevant personal experiences and agendas.

Cruzan and O'Connor, it should be noted, are both women. In a brilliant analysis, "Courts, Gender and 'The Right to Die'" (Law, Medicine and Health Care 18 (1990), 85-95), Steven Miles and Allison August review state appellate court decisions involving incompetent patients without advance directives and find that "judicial reasoning about men stresses the role of personal autonomy in these controversial decisions. Judicial reasoning about women examines the role of caregivers." In other words, sexism rules to the very edge of life.

One other paper on this subject deserves mention: Wanzer et al., "The Physician's Responsibility Toward Hopelessly Ill Patients: A Second Look" New England Journal of Medicine 320 (1989), 844-49, wherein ten of these twelve prominent physicians and ethicists publicly state their belief "that it is not immoral for a physician to assist in the rational suicide of a terminally ill person." This suggests that euthanasia, like its equally controversial predecessor, abortion, will gradually overcome the medical establishment's opposition. The comparison is not made idly. Both represent desperate remedies; advocates are not clamoring for the procedures, but for choice.

Rationing and resource allocation have begun to draw both impassioned and scholarly attention. Best known to the public are Daniel Callahan's books Setting Limits: Medical Goals in an Aging Society (New York: Simon and Schuster, 1987) and What Kind of Life? The Limits of Medical Progress (New York: Simon and Schuster, 1990). Callahan sees the "powerful, unremitting public demand for better health and a longer life" as the major obstacle to controlling medical cost. There is mounting evidence, however, that most people do not want life-prolonging treatment when the quality of life is poor, but physicians are ignoring their wishes. Thus, Callahan may be underestimating the dominant role of medicine itself--what Paul Starr calls the "sovereign profession."

Other noteworthy books on the subject are Rationing Health Care in America: Perceptions and Principles of Justice by Larry R. Churchill (Notre Dame: University of Notre Dame Press, 1987); Who Lives? Who Dies? by John F. Kilner (New Haven: Yale University Press, 1990); and Strong Medicine: The Ethical Rationing of Health Care by Paul Menzel (New York: Oxford University Press, 1990). All these writers invoke the notion of the common good against unrestrained individualism as a value that must rise from the ashes of past practice before any kind of ethical rationing of medical care can take place. But can the community achieve consensus on an issue of such complexity? In the early 1950s, economist Kenneth Arrow showed that voters attempting to rank order more than three choices face a theoretically impossible task. And yet Oregon is doing just that, setting priorities to a vast array of medical treatments in order to determine which ones will be funded by the state. Theoretically impossible, yet we watch with amazement--calling to mind the apocryphal story of the bumblebee, grounded according to all aeronautical engineering principles, yet somehow managing to fly. An appropriate image for those of us in clinical ethics--it is a time of impossibility and surprise.

Lawrence J. Schneiderman is a professor and physician at The University of California, San Diego, School of Medicine, La Jolla, Ca.
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Title Annotation:The Best of Bioethics; readings in bioethics
Author:Schneiderman, Lawrence J.
Publication:The Hastings Center Report
Article Type:bibliography
Date:Nov 1, 1990
Words:1187
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