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Jurisprudence
Ethics
Uncovering the Conflicting Approaches
There are various ways of addressing the moral issues which arise in the context of health care, and
each of these approaches to the issues is based upon a particular theoretical stance, which, broadly
speaking, stresses a particular set of values and beliefs. In the literature on ethics these moral
theories are usually identified as deontological, consequentialist, or virtue-based. Because they
stress different values as morally fundamental these moral theories are at least potentially in conflict
with one another.
Deontological Moral Theories
A deontological approach to ethical questions in general, and to the more specific moral
questions inherent in health care practice, makes the question of what we can rightfully do to
other people of central concern. Hence the emphasis on notions such as 'rights', 'duties' and
'obligation'.
Perhaps the principal proponent of a deontological approach to moral questions was the
eighteenth century German philosopher Immanuel Kant, who expanded on a much older tradition
of thought on the moral importance of human beings. Of importance and interest to us here is
the stress Kant places on the rationality of mankind, as opposed to other species, and the
implications for this for the question of how we must treat such beings. His Categorical
Imperative says, for instance, that we can never be acting rightly if what we do involves treating
another human being merely as a means to our own ends. And wrong actions are irrational
actions and vice-versa - because they are contrary to our essential human nature as rational beings.
The stress on rationality as the distinguishing feature of human beings - as that which makes them
morally important - was part of the older Judaeo-Christian tradition within which Kant was
working. But his exposition of this traditional line of thought has lead some thinkers to stress the
rational and autonomous nature of human beings above every other moral consideration. The
consequence of this has been to expose a difference of opinion or approach existing within
deontological moral theory:
1. An emphasis on duty
This approach to moral matters reflects the traditional Judaeo-Christian morality of the western world.
That is not to say however that it is necessarily religion based, but more that this sort of approach to
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ethical problems in the context of medical practice stresses the wrongness of contravening certain rules,
which are taken to be morally fundamental. This way of confronting ethical issues, based on some
notion of our duties to others, will usually give central place to a cluster of prohibitions on what we
may do to other people. For example, the Principle of the Sanctity of Human Life forbids the killing of
an innocent human being, in any circumstances. This duty-based approach is also likely to recognise
prohibitions on lying and torture, as well as upholding other traditional doctrines such as the view that
that there is a morally significant difference between killing a person and allowing them to die (the ActsOmissions Distinction); and that there is a limit to the amount and sort of harm which may be done in
order to bring about good (the Doctrine of Double Effect).
These views form the major content of a duty-based morality, but this approach will also preclude
breaches of professional codes of conduct such as the duty to avoid harming a patient and to respect
patient confidentiality. Also of great significance for health care practitioners is the emphasis within
this view of moral matters, on the duty to act in the best interests of the patient at all times.
Perhaps, this approach to the question of what is morally important may be best captured by pointing out
that it makes the moral agent, the person who must act, the centre of moral concern. He/she must do
what is morally required by the rules even if, for instance, the breaking of one of these rules would give
the patient what he wants and chooses, and even if it would result in a decrease in suffering overall.
Thus a duty-based practitioner will not contravene the Principle of the Sanctity of Life by performing
euthanasia even when it is the express wish of a fully competent patient or when that patient is suffering
greatly. (He or she may, though, and without any fear of contradiction, allow that patient to die earlier
rather than later, or reduce the suffering by the use of painkilling drugs even when these have the effect
of shortening the patient's life).
It would be mistaken to understand this approach to moral issues as one of the inflexible application of
rules. Doing the right thing here is not a matter of blindly following rules but is much more difficult and
subtle and - more than any other approach- it requires the exercise of good judgement.
2. An emphasis on rights
Within a deontological view of ethical questions we can also identify an approach to ethical issues
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where the central focus of concern is rational and autonomous persons and the respect that is due to
them. A rational and autonomous person is said to possess rights and these must be respected because
they enable him/her to determine what happens in their own life - even if what is chosen is detrimental
to their own welfare. Thus respecting a person's autonomy is of paramount moral importance (as long as
doing so does not infringe someone else's autonomy) and the focus of concern shifts from the moral
agent and whether he obeys certain moral rules to the way his actions impinge upon other autonomous
individuals. Hence, contrary to the views of a duty-based morality, the rights-based moralist will
contravene the Principle of the Sanctity of Life quite happily in a request for euthanasia, as long as the
request comes from a rational and autonomous patient. Indeed the rights-based moralist will condemn
any refusal to break this Sanctity of Life principle in such circumstances as an important violation of a
fundamental right.
Typically on this view, moral problems become issues about whether someone has been wronged (have
their rights been violated?) rather than issues about whether wrong has been done. Because the respect
for the autonomy of a person is of overriding importance it follows that one could wrong a person (by,
for instance, violating his right to choose the treatment he wants) even though one benefits him (by, for
instance, giving him the best treatment available). Conversely, one might harm him (by providing the
least efficacious treatment) without necessarily wronging him. A rights-based moralist would thus
regard the concealment of a possible treatment option from a patient, for instance, as an example of
wronging a person without harming her. And conversely, he would maintain that a doctor who
deliberately submits a patient who is informed and gives a valid consent, to a harmful piece of research,
for example, does not thereby wrong her. Contrary to both a duty-based and a consequentialist view of
ethical issues, both of which subordinate the value of respect for autonomy to other values, the rightsbased approach to ethical issues insists on the importance of individual choice or autonomy above every
other concern.
Consequentialist/utilitarian moral theory
Utilitarianism is both a theory of the good and a theory of the right.
As a theory of the good, utilitarianism is welfarist, holding that the good is whatever yields the
greatest utility --'utility' being defined as pleasure, preference-satisfaction, or in reference to an
objective list of values. As a theory of the right, utilitarianism is consequentialist, holding that
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the right act is that which yields the greatest net utility.
Utilitarianism was originally proposed in 18th century England by Jeremy Bentham and others,
although it can be traced back to ancient Greek philosophers such as Parmenides. Bentham
found pain and pleasure to be the only absolutes in the world: "nature has put man under the
governance of two sovereign masters: pleasure and pain." From this he derived the rule of
utility: that the good is whatever brings the greatest happiness to the greatest number of people.
Later, after realizing that the formulation recognized two different and potentially conflicting
maximanda, he dropped the second part and talked simply about "the greatest happiness
principle".
John Stuart Mill wrote a famous (and short) book called Utilitarianism. Although Mill was a
utilitarian, he argued that not all forms of pleasure are of equal value, using his famous saying
"It is better to be Socrates dissatisfied, than a fool satisfied." He disagreed with Bentham's
hedonic calculus holding that quality is better than quantity.
Utilitarians appraise any proposed course of action, not as to whether it is in line with exemplary moral
conduct as laid down by a particular moral code, nor as to whether it respects the rights of an individual,
but simply as to whether or not the consequences of the action produce as much good for as many
people as possible in the circumstances. There are sometimes difficulties; of course, about saying
precisely what counts as 'good'. But leaving aside the problems of defining and measuring the good,
utilitarians claim they have a rational method of resolving moral conflicts by ranking all possible
courses of action in terms of the total amount of 'good', or the least amount of 'harm', each would
produce.
The right action, morally-speaking, is the one that leads to the most benefit, or the least harm, for the
largest number of people. Hence a utilitarian is prepared both to break moral rules and to violate rights
if he/she can be certain that the total welfare will be increased by so doing. For a utilitarian, therefore, we
cannot do wrong, nor wrong a person, unless we harm or at least fail to benefit him. For instance, a
utilitarian faced with a request for euthanasia from a terminally-ill patient in great pain, would take into
account the suffering of the individual, the needs of his or her family and the interests of others who
may benefit from his death in terms of access to scarce medical resources. He/she would probably
conclude that, in these circumstances, complying with the patient's request would increase the total
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welfare and is therefore the right thing to do.
However, if complying with the request for euthanasia would for some reason not lead to an
increase in benefit more generally then the utilitarian would refuse the request for euthanasia even
though the individual patient may suffer greatly as a result. Thus, provided there is an overall
increase in benefit, even if a person is made to suffer one does no wrong (contrary to duty-based
morality) and neither does one wrong the individual concerned (contrary to rights-based morality).
In acting to maximise the 'good' utilitarians are prepared deliberately to impose burdens upon one
person in order to benefit others. For many -and perhaps in particular for health care workers
committed to individual patients - this will be morally unacceptable. (Though in a world of scarce
resources and responsibility for financial budgets that view may be changing!). But, to be fair,
contemporary utilitarians rarely reject outright the moral importance of following rules or of
respecting rights. On the contrary they have often worked assiduously to accommodate these
different moral concerns by arguing that, ultimately, following certain rules and respecting rights
are most likely to produce the most 'good' for society. On the other hand, it should be noted that the
place given by utilitarians to rules and rights is essentially conditional - it depends entirely on their
actually being conducive to the greatest good of the greatest number.
Other varieties of utilitarianism have also been proposed.
The traditional form of utilitarianism is act utilitarianism, which states that the best act is
whichever act would yield the most utility. A common alternative form is rule utilitarianism,
which states that the best act is the one that would be enjoined by whichever rule would yield
the most utility.
To illustrate, consider the following scenario: A surgeon has six patients: one needs a liver, one
needs a pancreas, one needs a gall bladder, and two need kidneys. The sixth just came in to
have his appendix removed. Should the surgeon kill the sixth man and pass his organs around to
the others? This would obviously violate the rights of the sixth man, but utilitarianism seems to
imply that, given a purely binary choice between (1) killing the man and distributing his organs
or (2) not doing so and the other five dying, violating his rights is exactly what we ought to do.
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A rule utilitarian, however, would look at the rule, rather than the act, that would be instituted
by cutting up the sixth man. The rule in this case would be: "whenever a surgeon could kill one
relatively healthy person in order to transplant his organs to more than one other person who
needs them, he ought to do so." This rule, if instituted in society, would obviously lead to bad
consequences. Relatively healthy people would stop going to the hospital, we'd end up
performing many risky transplant operations, etc., etc. So a rule utilitarian would say we should
implement the opposite rule: don't harvest healthy people's organs to give them to sick people.
If the surgeon killed the sixth man, then he would be doing the wrong thing.
Criticism of Utilitarianism
Critics of utilitarianism claim that this view suffers from a number of problems, one of which is
the difficulty of comparing utility among different people. Many of the early utilitarians hoped
that happiness could somehow be measured quantitively and compared between people through
felicific calculus, although no one has ever managed to construct one in practice. It has been
argued that the happiness of different people is incommensurable, and thus felicific calculus is
impossible, not only in practice, but even in principle. Defenders of utilitarianism reply that this
problem is faced by anyone who has to choose between two alternative states of affairs where
both impose burdens to the people involved. If happiness were incommensurable, the death of a
hundred people would be no worse than the death of one.
Utilitarianism has also been criticized for leading to a number of conclusions contrary to
'common sense' morality. For example, if forced to choose between saving one's child or saving
two children of strangers, most people will choose to save their own child. However,
utilitarianism would support saving the other two instead, since two people have more total
potential for future happiness than one.
John Rawls rejects utilitarianism, both rule and act, on the basis that it makes rights depend on
the good consequences of their recognition, and thus he argues that it is incompatible with
liberalism. For example, if slavery or torture is beneficial for the population as a whole, it could
theoretically be justified by utilitarianism. Utilitarians argue that justification of either slavery
or torture would require improbably large benefits to outweigh the direct suffering to the
victims and that Rawl's analysis excludes the indirect impact of social acceptance of inhumane
policies. (The issue in particular rests on who is included in the evaluation: animal welfare
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activists may argue that the suffering of farm animals is immoral on utilitarian grounds if
including other species in the overall assessment.)
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Virtue Theory:
According to the moral theories we have looked at so far, a good person is one who either respects
the rights of others or follows certain rules outlining our duties to others, or who always tries to
produce the greatest happiness for the greatest number of people. Despite their differences, all of
these theories give a central place to reason and not much to the role of feeling in moral decisionmaking. An alternative to this is an approach called virtue theory which has become very influential
in ethics literature recently but is, in fact, based on the writings of Aristotle (384-322 BC).
For Aristotle, the virtues are those qualities a person has which enable her to achieve well-being i.e.
to live a flourishing life, (Notice that this is a much broader conception of our usual narrowly
'moral' notion of virtue) To lack these virtues means that one can never attain the sort of life human
beings were created for -'the good life'.
So what is this peculiarly human virtue that enables us to lead a flourishing life? Aristotle says it is the
exercise of reason. So far, this emphasis on reason may remind us of the other sorts of moral theories
and in particular the views of Kant, who insisted that right action was action dictated by reason and set
against desire or inclination. But for Aristotle, the role of reason, though crucial, was only a small part of
what constituted right action. Many other things in addition to reason are necessary.
Some examples he gives are a congenial home life, material possessions, leisure time, a certain amount
of money, education, friends, beauty, health and freedom. And among these conditions for human
flourishing he places what we call moral virtues such as courage, honesty etc.
According to Aristotle, each person must develop the virtues in himself and thereby learn to judge what
is appropriate in each circumstance. He says it is easy to formulate rules of right conduct -such as 'Be
generous'- but to be generous to the right person at the right time and in the right amount, is difficult
and requires a fine moral judgement for which no specifications can be given. This has to be learned
through experience and habit.
Aristotle's point is that, without the possession of the virtues a person will sometimes do the right thing;
but, in general, such people will lack the means of ordering their emotions and desires or of deciding
rationally which emotions and desires to cultivate and which to quash. Hence he makes it clear that
virtues are not only dispositions to act in certain ways, but also to feel and think in certain ways.