Ethical and Legal Issues in Neurology

James L. Bernat, Richard Beresford

• Publisher: Elsevier
• Year: 2014
• Print ISBN: 9780444535016
• eBook ISBN: 9780444535047
• Topic: Medicine
• Subtopic: Neurology

Advances in our understanding of the brain and rapid advances in the medical practice of neurology are creating questions and concerns from an ethical and legal perspective. Ethical and Legal Issues in Neurology provides a detailed review of various general aspects of neuroethics, and contains chapters dealing with a vast array of specific issues such as the role of religion, the ethics of invasive neuroscience research, and the impact of potential misconduct in neurologic practice. The book focuses particular attention on problems related to palliative care, euthanasia, dementia, and neurogenetic disorders, and concludes with examinations of consciousness, personal identity, and the definition of death. This volume focuses on practices not only in North America but also in Europe and the developing world. It is a useful resource for all neuroscience and neurology professionals, researchers, students, scholars, practicing clinical neurologists, mental health professionals, and psychiatrists. - A comprehensive introduction and reference on neuroethics - Includes coverage of how best to understand the ethics and legal aspects of dementia, palliative care, euthanasia and neurogenetic disorders - Brings clarity to issues regarding ethics and legal responsibilities in the age of rapidly evolving brain science and related clinical practice

Chapter 1

Ethical principles and concepts in medicine

Robert M. Taylor*, Department of Internal Medicine and Center for Palliative Care, Ohio State University Wexner Medical Center, Columbus, OH, USA, ^*Correspondence to: Robert M. Taylor, M.D., 453 W 10th Ave, Columbus, OH 43210, USA. Tel: + 1-614-366-8726, E-mail: [email protected]

Abstract

Clinical ethics is the application of ethical theories, principles, rules, and guidelines to clinical situations in medicine. Therefore, clinical ethics is analogous to clinical medicine in that general principles and concepts must be applied intelligently and thoughtfully to unique clinical circumstances. The three major ethical theories are consequentialism, whereby the consequences of an action determine whether it is ethical; deontology, whereby to be ethical is to do one’s duty, and virtue ethics, whereby ethics is a matter of cultivating appropriate virtues. In the real world of medicine, most people find that all three perspectives offer useful insights and are complementary rather than contradictory. The most common approach to clinical ethical analysis is principlism. According to principlism, the medical practitioner must attempt to uphold four important principles: respect for patient autonomy, beneficence, nonmaleficence, and justice. When these principles conflict, resolving them depends on the details of the case. Alternative approaches to medical ethics, including the primacy of beneficence, care-based ethics, feminist ethics, and narrative ethics, help to define the limitations of principlism and provide a broader perspective on medical ethics.

Keywords

autonomy; beneficence; care-based ethics; consequentialism; deontology; feminist ethics; justice; narrative ethics; nonmaleficence; virtue

Introduction

Clinical ethics is the application of ethical theories, principles, rules, and guidelines to clinical situations in medicine. Clinical ethics is analogous to clinical medicine because general principles and concepts must be applied intelligently and thoughtfully to unique clinical circumstances. Thus, it is important for clinicians to have a basic grounding in the ethical theories and principles and to develop a method for applying these to challenging clinical cases. The purpose of ethical analysis is to provide both a perspective from which to judge whether a past action was or was not ethical and a framework from which to determine which of one or more possible future actions would be ethical.

Ideally, clinical ethics should be taught from cases encountered on the wards. Ethical issues arise frequently, but too often are not recognized or are avoided rather than confronted and employed for teaching purposes. Most ethical issues, once recognized, are easily resolved based on a consensus established in previous cases. However, some ethical issues, commonly called ethical dilemmas, do not allow for such easy resolution because there is no widespread consensus for such a case. For such cases, there may be no consensus about the proper resolution, and more than one possible resolution may be defensible. Indeed, in such cases, potential resolutions may appear to carry both benefits and burdens, such that the best resolution may be one that is least bad and to which the least profound objections can be raised. In such situations, careful ethical analysis, as well as attention to the process of ethical analysis and clinical resolution, is required.

Overview of ethics

One common approach to ethics is to begin with ethical theories from which we derive ethical principles, which in turn lead to rules (such as truth-telling or maintaining confidentiality), which then guide and determine our particular judgments and actions. Several general theories of ethical analysis have been proposed. The three most widely employed are consequentialism, deontology, and virtue ethics. These three approaches are often referred to as normative ethics, or the study of ethical action. According to the normative ethics, the purpose of inquiry is to determine how best to act in a given situation.

Ethics is the study of actions taken by moral agents, to determine if they are good (praiseworthy) or bad (blameworthy). Only moral agents can act ethically or unethically. A moral agent is one who is capable of knowing and understanding good and bad and capable of rationally choosing one over the other. Thus, when a wild animal kills a person, that results in suffering and harm, but the act is not considered an unethical or immoral act on the part of the animal; the animal is incapable of knowing or understanding the harms done and is more likely acting out of instinct rather than rational choice. Even humans who lack certain intellectual or moral development may not be capable of acting ethically or unethically, such as a young child who recklessly, but unintentionally, injures or kills someone by discharging a firearm, or a severely demented person who inadvertently starts a fire by leaving a stove on and causes the death of another.

Indeed, the capacity to make moral distinctions and to act on them is a distinguishing characteristic of the normal adult human being. Thus all normal adult human beings are moral agents. Moral agents are expected to act within the boundaries of ethical behavior. Furthermore, moral agents are expected to want to be ethical.

Although there are basic ethical rules that apply to everyone, professionals typically have specific ethics that apply uniquely to them. For example, there are legal ethics, business ethics, and medical ethics. Medical ethics is often understood to be a subset of bioethics, which also includes biomedical research ethics, nursing ethics, and other ethics related to biology and medicine. Clinical ethics is the branch of medical ethics that applies to practitioners involved in caring for patients, as opposed, for example, to research ethics.

The distinction between research ethics and clinical ethics is important for several reasons. The most important distinction is that, when dealing with a patient in a clinical situation, providing the best possible care for that patient, within very broad parameters, is the primary goal, whereas, in the research setting, the individual patient is participating in an enterprise primarily for the benefit of others. Because participating in research may not benefit the patient, and may even cause him or her harm, those overseeing the research project have distinct and specific ethical obligations that are not relevant to the clinical situation.

Within clinical medical ethics, there are additional distinctions, based on the specific profession of the healthcare provider, that sometimes become relevant. For example, each profession, such as nursing, pharmacy, psychology, define their ethical obligations based on their specific and unique relationship to patients. Thus, although it is reasonable to consider clinical medical ethics as a global perspective, it contains within it complexities and nuances that may occasionally be confusing and confounding.

Another important consideration is the relationship of the law to ethics in general and medical ethics in particular. The law defines broad limits of behavior, most of which apply to everyone, and some of which apply to physicians and other healthcare providers. However, it is important to understand that, because the law stipulates a minimal level of acceptable behavior, one can act within the law and yet still act unethically.

Furthermore, even within ethics the distinction is often made between obligatory actions and supererogatory actions. An obligatory action is one that is ethically required, whereas a supererogatory action is one that goes above and beyond what is ethically required. Supererogatory actions are generally considered especially praiseworthy precisely because they are not required. Just as one can act more ethically than required by law, there are situations where one can act more ethically than required by ethics. An example of this may be when a physician is at a point at which it would be ethical to turn the care of a patient over to a cross-covering colleague but, because of the complexity of the case and/or the relationship he or she has developed with the patient and family, the physician chooses to continue to care directly for that patient.

Ethical theories

Consequentialism

Consequentialism is a system of ethical analysis, most closely associated with John Stuart Mill, that bases the correctness of one’s actions on the consequences of the action (Sinnott-Armstrong, 2011). Hence, simplistically, if an action produces good effects, it is ethical, whereas if an action produces evil or bad effects, it is unethical. There are several problems with this simplistic analysis, however. First, it may be unclear (or open to interpretation) which effects are good and which are bad. Second, many actions produce both good and bad effects, so there must be some way of balancing those. Third, an action may have good effects for some people and bad effects for others, so there must be some way of balancing the effects on different people or groups of people. Fourth, although it may be clear after one has acted whether the effects of the action were good or bad, it may be very difficult to predict the effects of an act prior to acting. Since ethical analysis is most useful when it provides a guide for our current or future actions, rather than merely allowing us to determine whether or not a past action was ethical, we would like to be able to predict the effects prior to acting. Finally, although it may be very difficult to predict the consequences of particular acts, it may be easier and more useful to predict the consequences of categories of actions.

This problem of predicting the consequences of individual actions has led to the development of rule-based consequentialism (or “rule-consequentialism”): rules are derived based on the likely consequences of particular categories of actions, rather than individual actions. Thus, although there may be situations in which lying may result in good effects, because lying generally has bad effects, rule-consequentialism requires truth-telling as a general or universal rule. In contrast, act-consequentialism would require the agent to determine the consequences of each act prior to acting.

However, even rule-consequentialism has its limitations. A commonly cited example is the situation where the sacrifice of one innocent person could save the lives of many. Any number of hypothetical scenarios can be imagined, such as a gunman who takes 10 people hostage and says he will only let them go if his ex-wife, who he wants to kill, is brought to him in exchange for the hostages; if she is not brought to him, he will kill all 10 hostages. A straightforward consequentialist analysis would argue that it is preferable to sacrifice one person for the lives of 10 people. But this conclusion powerfully contradicts our moral sense and seems profoundly unethical. What it fails to consider is our commonly perceived duty to treat each individual as profoundly and uniquely important in his or her own right (see the discussion of deontology below). An ethical framework that permits us to sacrifice the lives of innocents for the benefit of others strikes us as extremely dangerous and prone to abuse.

Deontology

Deontology is a system of ethical analysis, most closely associated with Immanuel Kant, that bases the correctness of one’s actions on fulfilling the duties of the actor (Alexander and Moore, 2008). Thus individuals have moral obligations to others and, if they fulfill those obligations, they are acting ethically; if they do not, they are acting unethically. Among the major challenges of deontology is to determine the basis of one’s duties and the nature of one’s duties. Religious ethics typically is deontological. For example, the 10 commandments of the Old Testament define both specific duties all persons are expected to fulfill and also the basis for the duties – i.e., the commandments of an almighty deity. Thus, for persons who are committed to a particular religious tradition, their ethical duties are often defined by that tradition. However, for those who do not subscribe to that tradition, those duties may not be perceived as binding. Furthermore, in a pluralistic secular society, no one religious perspective is likely to be endorsed by all individuals. Therefore religiously based deontology cannot provide a common framework for such a society’s ethics.

However, some scholars have argued that duties can be defined on bases other than religion. Most importantly, Immanuel Kant argued that duties could be defined based on reason alone. He argued that, because humans are inherently rational beings, our ethical duties derive directly from rationality. If we are to be rational, we are obligated to act such that our actions could be universalized. This is Kant’s categorical imperative: “I ought never to act except in such a way that I could also will that my maxim should become a universal law.” Thus, anything we are permitted to do, everyone else must be permitted to do.

For example, if we are permitted to lie, according to the categorical imperative, everyone is permitted to lie. Although we might be tempted to argue that some specific circumstances might permit lying, once we argue that there are exceptions to the categorical imperative, we give tacit permission to others to define exceptions for themselves and others and the imperative is no longer categorical (i.e., universal). The advantage of Kant’s approach is that the categorical imperative applies to everyone equally and is not dependent on religion or ideology. However, it is problematic in that it defines universal duties in a form that permits no exceptions.

The other maxim attributed to Kant’s deontology is the statement that morality requires that we "act so as never to treat another rational being merely as a means." Thus we can never knowingly and intentionally sacrifice the good of one person for the good of another. This maxim is widely accepted throughout the western ethical tradition.

The limitations of deontology become apparent when we consider situations in which doing our duty leads to very bad consequences. A classic example is the situation confronted by those who hid and protected Jews in Nazi Germany. If German soldiers came to the door and asked the homeowner if he or she were hiding any Jews, it is hard to argue that ethics would obligate one to tell them the truth. One response to this is that this situation creates a conflict of fundamental duties – the duty to tell the truth and the duty to protect innocents from harm. However, deontology does not resolve this conflict satisfactorily. Indeed, one could argue the duty always to tell the truth is more fundamental than the duty to protect innocents from harm, if only because the latter is entirely under one’s own control, whereas the latter is rarely entirely under one’s own control. Indeed, there is no guarantee that lying to the soldiers will prevent them from discovering and murdering the Jews hidden in the house. It appears that the only satisfactory way to resolve this dilemma is to consider the consequences of one’s actions: Telling the truth will likely lead to the deaths of innocents (a profound evil) whereas telling a lie will more likely prevent that outcome and instead result only in the deception of those who would do great evil (a minor evil at most, and arguably a good).

Virtue ethics

Another approach to ethics, most closely associated with Aristotle and, more recently MacIntyre (1981) and Pellegrino (1993), is to focus on the qualities of the moral agent, or actor, rather than the agent’s acts (Hursthouse, 2012). In this approach, to be ethical is to cultivate in oneself appropriate character traits, such as honesty, altruism, courage, and perseverance, and also to work to cultivate such character traits in others. According to this approach, if we are perfectly virtuous, we will necessarily do the right thing. Of course, no one can ever be perfectly virtuous so, to the extent we are imperfect, we will require judgment and humility when determining how best to act. Thus virtue ethics emphasizes not only cultivating virtues, but also self-knowledge, especially understanding the limitations of human beings in general and ourselves in particular. Two important concepts associated with virtue ethics are phronesis or practical wisdom and eudaimonia.

Phronesis or practical wisdom is the capacity to adapt our thinking and decision-making to the specific circumstances before us, as opposed to rigidly applying a set of rules. It is the recognition that, although duties and rules are important, it is unlikely duties and rules can be perfectly defined so that they can always be applied directly to every situation. Likewise, although the consequences of our actions matter a great deal, there are situations in which our duties require us to accept consequences that we consider bad or evil. Phronesis, or practical wisdom, is the capacity to navigate these complexities of human existence in a manner that maximizes the good and minimizes evil.

Eudaimonia is often translated as human happiness or human flourishing. According to virtue ethics, all of our efforts are ultimately directed toward this end, whether we realize it or not. All humans desire to be happy and to flourish. The fact that m...

Table of contents

• Cover image
• Title page
• Table of Contents
• Copyright
• Handbook of Clinical Neurology 3rd Series
• Foreword
• Preface
• Contributors
• Chapter 1. Ethical principles and concepts in medicine
• Chapter 2. The analysis and resolution of ethical dilemmas
• Chapter 3. Ethics committees and consultants
• Chapter 4. Legal process, litigation, and judicial decisions
• Chapter 5. Law, ethics, and the clinical neurologist
• Chapter 6. Religion and medical ethics
• Chapter 7. Professional conduct and misconduct
• Chapter 8. Medical error and disclosure
• Chapter 9. The good doctor: professionalism in the 21st century
• Chapter 10. Palliative treatment of chronic neurologic disorders
• Chapter 11. Care of the dying neurologic patient
• Chapter 12. Withdrawing and withholding life-sustaining treatment
• Chapter 13. European perspectives on ethics and law in end-of-life care
• Chapter 14. Medical futility
• Chapter 15. Assisted suicide and euthanasia
• Chapter 16. Brain death
• Chapter 17. Coma and disorders of consciousness
• Chapter 18. Ethical issues in the care of the neurologically devastated infant
• Chapter 19. Ethical issues in states of impaired communication with intact consciousness and language
• Chapter 20. Ethical issues in the neurology of aging and cognitive decline
• Chapter 21. Ethics in neurodevelopmental disability
• Chapter 22. Ethical issues in neurogenetic disorders
• Chapter 23. Public policy and healthcare systems
• Chapter 24. Research involving human subjects: ethical and regulatory issues
• Chapter 25. The ethics of clinical research in low- and middle-income countries
• Chapter 26. The ethics of surgically invasive neuroscience research
• Chapter 27. The ethics of neuroenhancement
• Chapter 28. Neuroethical issues in clinical neuroscience research
• Chapter 29. Neurologic disorder and criminal responsibility
• Chapter 30. Pragmatic neuroethics: the social aspects of ethics in disorders of consciousness
• Chapter 31. The nature of consciousness
• Chapter 32. Dementia and personal identity: implications for decision-making
• Chapter 33. The definition and criterion of death
• Index