Ethics Work-Up: A Practical Method for Ethical Case Analysis and Argument

1. Ethics Work-Up:A Practical Method for Ethical Case Analysis and Argument Laurence B. McCullough, Ph.D. Professor of Medicine and Medical Ethics Center for Medical Ethics and Health Policy Baylor College of Medicine Houston, Texas

2. Objectives • Identify the components of the ethical concept of the physician as fiduciary of the patient • Identify four professional virtues and two ethical principles that implement the ethical concept of the physician as fiduciary of the patient in clinical practice • Identify a six-step “Ethics Work-Up” for the practical management of the ethical dimensions of clinical cases

3. Physician as Fiduciary of the Patient -1 • This concept was introduced into the history of medical ethics by Dr. John Gregory (1724-1773) and by Dr. Thomas Percival (1740-1804) • Gregory was Professor of Medicine, University of Edinburgh and First Physician to His Majesty the King, in Scotland, author of the first modern, English-language text on medical ethics • Gregory J. Lectures on the Duties and Qualifications of a Physician 1772 • Percival was an accomplished physician, scientist, and ethicist, author of the first book entitled Medical Ethics in any language • Percival T. Medical Ethics … 1803 • Both had enormous influence on the subsequent history of medical ethics through the nineteenth century

4. Physician as Fiduciary of the Patient -2 • The physician should become and remain scientifically and clinically competent • Based on scientific method of Francis Bacon (1561-1626), a nascent form of evidence-based medicine • The physician should commit to the protection and promotion of the health-related interests of the patient as the physician’s primary concern and motivation • The physician’s self-interests are blunted by professional virtues and obligations to the patient • Physicians should maintain, strengthen, and pass on medicine to future physicians and patients as a public trust, not merchant guild

5. Four Virtues of the Physician as Fiduciary – 1 • Virtues are traits or habits of character that make routine our judgments about what are obligations are and our fulfillment of them • The moral life should not be a constant struggle to discern one’s obligations • The moral life should not be a constant struggle to fulfill one’s obligations, especially when those obligations are demanding of oneself

6. Four Virtues of the Physician as Fiduciary – 2 • Integrity: Practice medicine according to standards of intellectual and moral excellence • Intellectual standards come from evidence-based scientific evaluation of clinical judgment and practice • Moral standards come from putting patient’s interests first

7. Four Virtues of the Physician as Fiduciary – 3 • Compassion: Routinely recognize when patients are or at risk for being in pain, distressed, or suffering and act promptly to relieve and prevent the patient’s pain, distress, and suffering

8. Four Virtues of the Physician as Fiduciary - 4 • Self-effacement: routinely put aside and not act on irrelevant differences between the physician and the patient, so that the patient’s interests (and not the physician’s) remain the primary concern

9. Four Virtues of the Physician as Fiduciary -5 • Self-sacrifice: routinely take reasonable risks to one’s life, health, income, and job security for the sake of protecting and promoting the interests of the patient • Setting ethically justified limits on self-sacrifice was for Gregory a major ethical concern and remains such • How should a physician respond to a summons to an emergency on the Sabbath?

10. Professional Virtues and Ethical Principles • Professional virtues turn the physician’s attention to the patient’s health-related interests and motivate the physician to protect and promote those interests • Ethical principles provide specific action guides for how the physician should protect and promote the patient’s health-related interests

11. Two Ethical Principles - 1 • Beneficence: The physician should protect and promote the patient’s interests by acting in ways that are reliably expected to result in a greater balance of clinical goods over harms for the patient, as those goods and harms are understood and balanced in rigorous clinical judgment

12. Two Ethical Principles - 2 • Respect for Autonomy: The physician should protect and promote the patient’s interests by acting in ways that are reliably expected to result in a greater balance of clinical goods over harms for the patient, as those goods and harms are understood and balanced from the patient’s perspective • By the patient himself or herself • By the patient’s surrogate when the patient cannot participate in the informed consent process

13. Disciplined Ethical Reasoning About Cases -1 • Step 1: Information gathering • What is known about the case? • What remains uncertain about the case? • Can the uncertainty be reduced by further fact-gathering • Remaining uncertainty managed by disciplined ethical reasoning of subsequent steps

14. Disciplined Ethical Reasoning About Cases -2 • Step 2: Identify ethical obligations of the physician to the patient, based on the ethical concept of the physician as fiduciary of the patient • From the perspective of the professional virtues of integrity, compassion, self-effacement, and self-sacrifice • From clinical perspective: beneficence • From patient’s perspective: respect for autonomy

15. Disciplined Ethical Reasoning About Cases -3 • Step 3: Identify ethical obligations of health care professionals and health care organization to its population of patients

16. Disciplined Reasoning About Cases -4 • Step 4: Identify any conflicting obligations

17. Disciplined Reasoning About Cases -5 • Step 5: Provide an argument for how that conflict should be managed • Attempt to establish a consensus approach • Seek guidance from ethics statements of professional associations of physicians • Provide reasons that are accessible to any open-minded, rational person that establish priorities among conflicting ethical concerns by appealing to professional virtues and ethical principles • Recognize and manage ethical controversy • Distinguish carefully analyzed and well argued positions from those that are poorly analyzed and argued • Clarity, consistency, coherence, clinical applicability, clinical adequacy • Eliminate poorly analyzed and argued positions from further consideration • Implement agreed-upon carefully analyzed and well argued position

18. Disciplined Reasoning About Cases -6 • Step 6: Preventive Ethics • Identify and implement organizational practices and policies that are reasonably expected to prevent the conflict from occurring/occurring in a hard-to-manage form • Periodically review these practices and policies so that they do not become part of the problem

19. References • Gregory J. Lectures on the Duties and Qualifications of a Physician. London: W. Strahan and T. Cadell, 1772. In McCullough LB, ed. John Gregory’s Writings on Medical Ethics and Philosophy of Medicine. Dordrecht, Netherlands: Kluwer Academic Publishers, 1998: 161-248. • Percival T. Medical Ethics, or a Code of Institutes and Precepts, Adapted to the Professional Conduct of Physicians and Surgeons. London: Johnson & Bickerstaff, 1803.

20. Ethics Work-Up:A Practical Method for Ethical Case Analysis and Argument Laurence B. McCullough, Ph.D. Professor of Medicine and Medical Ethics Center for Medical Ethics and Health Policy Baylor College of Medicine Houston, Texas