Session 3 Ethical principles Guidelines for ethical thinking

Session 3 Ethical principles

Guidelines for ethical thinking n What sources do professionals use to help them in their ethical thinking?

Principlism n widely applied bioethical approach based on fundamental moral principles developed by American philosophers Thomas Beauchamp (utilitarian) and James Childress (deontologist) - ‘Principles of Biomedical Ethics’, first published in 1979 n principlist approach applies the principles of autonomy, non-maleficence, beneficence and justice to contemporary ethical dilemmas n the rules for informed consent, truthfulness, privacy and confidentiality are all derived from the principle of autonomy n principlism widely used as a starting point for practical ethical decision-making in the healthcare professions.

The bioethical principles of Beauchamp and Childress characteristics : n n n role-specific prima facie duties mid-level principles - below universal, foundationalist principles such as the categorical imperative or the principle of utility but above concrete judgments about particular matters principles useful in decision-making – ethical theories too general to guide particular decisions compatible with either deontology or utilitarianism no intrinsic priority to any of the principles; they are all of equal weight

The bioethical principles of Beauchamp and Childress n conflict in principalism n conflicts are to be overcome by series of ‘prudential maxims’ n maxims are supportive in balancing the conflicting principles against each other n principles are prima facie and in no absolute hierarchy, they cannot be directly applied and must therefore be negotiated

The fundamental bioethical principles n Autonomy: right to self governance, self rule, self-determination; limited by the rights of others to exercise their autonomy n Beneficence: doing good n Nonmaleficence: above all do no harm n Justice: fair distribution of limited resources

Ethical issues in relation to Four Principles n Autonomy n decisional capacity n Nonmalefience – Beneficence n life sustaining decisions, QOL, euthanasia & assisted suicide n Justice n rationing & managing health care costs

Medical Ethics and Evolving with Society n Hippocratic Era n nonmalefience – beneficence n Contemporary Era n above constrained by autonomy and justice

The Four Bioethical Principles n Autonomy n derived from Greek ‘autos’ an ‘nomos’ – self-rule. n autonomy or self-determination a dominant principle of medical ethics. n encompasses the capacity to think and decide and to act on the basis of such thought and decision closely related to the notion of choice. n informed consent to medical treatment lies at the heart of autonomy and privacy and confidentiality, and are all derived from the principle of ‘respect for persons’

Autonomy n n respect for autonomy – requires health professionals to help patients come to their own decisions and to respect and follow those decisions person’s autonomy may be restricted in certain circumstances, for example: n to prevent that person from harming others (harm principle) n to prevent that person from harming him/herself (soft paternalism) n to benefit that person (hard paternalism) n to benefit others (social welfare principle)

Autonomy n Autonomy (cont) n paternalism (not an ethical principle) overrides the principle of respect for autonomy n the agent/actor will usually try to justify her/his actions by appealing to the principles/ of beneficence and/or non-maleficence. n paternalism is recognised as ‘weak’ and ‘strong’; or ‘soft’ and ‘hard’: n weak (soft) paternalism § overriding an incompetent person’s wishes n strong (hard) paternalism § overriding a competent person’s wishes.

Non-maleficence n Non-maleficence (primum, non nocere or "first, do no harm. " - a simplification of Hippocrates - "As to diseases, make a habit of two things--to help, or at least to do no harm. ") n prima facie duty not to harm anyone n Beauchamp and Childress: n n principle of non-maleficence defined as “the principle that we ought not to inflict evil or harm on others. ” "the obligation not to injure others intuitively seems more stringent than the obligation to rescue them. "

Non-maleficence n expresses the commitment to the protection of patients from harm n affirms the requirement of competence and the standard of duty of care - failure to prevent harm to the patient from errors and malpractice represents failure to act in accordance with the principle of nonmaleficence n withdrawing or withholding of life-sustaining treatment, the treatment of terminally ill patients and the provision of futile treatment, all raise issues concerning the principle of non-maleficence

Beneficence n principle of beneficence means that healthcare providers have a duty or obligation to promote the health and welfare of the patient, and not merely refrain from causing harm n beneficence requires positive action, to always act in the best interests of the patient or client n the principle of beneficence is a primary goal of healthcare providers n may conflict with the principle respect for patient autonomy - without an appropriate balance has led to considerable paternalism in health care

Beneficence n assisted suicide and euthanasia inevitably prompt discussion of respect for autonomy and beneficence as well as non-maleficence n Hippocratic Oath: 'I will use treatment to help the sick according to my ability and judgement, but I will never use it to injure or wrong them'.

Justice n justice often synonymous with fairness; a moral obligation to act on the basis of fair adjudication between competing claims n equality is at the heart of justice - Aristotle's formal Principle of Justice n important to treat equals equally (horizontal equity) and n to treat unequals unequally in proportion to the morally relevant inequalities (vertical equity) n justice requires that morally defensible differences among people be used to decide who gets what

Justice n justice is to show respect for people by not making arbitrary or capricious distinctions and by not discriminating against some groups on that basis n logical opposite of justice is discrimination n fair distribution of benefits and burdens n patients in similar situations should normally have access to the same health care n try to distribute limited resources (time, money, care, etc. ) fairly

Ethical Principle of Justice n principle of justice n n involves giving to all persons their "rights" or "desserts" the distribution of various resources in society often is governed by different philosophies: n to each according to their need, n to each according to their merit, n to each according to their worth/contribution to society n to each an equal share n to each according to their effort

Distributive justice n society uses various rules and principles (moral, legal, and ethical) to decide how to distribute in a just manner its benefits and burdens n process is called ‘distributive justice’ n distributive justice becomes an important issue when a resource is limited and when there is competition for it

Theories of Distributive Justice n Egalitarian (deontological) n everyone should be treated the same n Utilitarian n what produces the most benefit for society as a whole n Libertarian n emphasize rights to social and economic liberty (invoking fair procedures rather than substantive outcomes) n Communitarian n stresses principles and practices of justice that evolve through tradition in a community n Rawls’s theory of justice n fair opportunity/fairness

Rawls’s theory of "justice as fairness" n John Rawls n n n claimed that people are to be treated equally unless there are relevant differences among them or unless an unequal distribution would be to everyone's advantage Rawls’ idea that a society is just or fair if and only if it is governed by principles that reasonable people would agree to if they knew nothing about their own place in society at the time of drawing up the agreement (original position) any principles chosen in the original position (from behind the veil of ignorance) would be justified, and so any state that ran according to those principles would be justified

Rawl’s Two Principles n two principles to govern the basic structure of society: n n FIRST PRINCIPLE: each person has an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme of liberties for all SECOND PRINCIPLE: Social and economic principles are to satisfy two conditions: n n first, they must be attached to offices and positions open to all under conditions of fair equality of opportunity (the opportunity principle); and second, they must be to the greatest benefit of the least advantaged members of society (the difference principle).

Scarce medical resources n Ethical question is: "Who should be treated when not all can be treated? "

Scarce medical resources n Selecting recipients of scarce resources: n moral principle of medical utility use resources carefully to maximise the number of lives saved: i. e. given first to those whose chance of survival with them is very high but whose chance of survival without them is very low n chance/lottery – impersonal justified by equality and fair opportunity n first come, first served n random choice n weighing the lives in question n moral principle of social utility n social value of potential recipients n triage n

Economics of Health Care n Continually increasing health care costs: n inflation based on overall increase in n n population increase ageing population increase demand for healthcare new technologies, new procedures personnel and other resources

Healthcare resources n the claim to health care n health care as a right ? n health care based on justice according to need (fairness) n what is meant by healthy? n e. g. infertility treatment n inequalities of health care n age; learning disability; social class; women; access to certain treatments; rare disorders

Healthcare resources issues n risky lifestyle/detrimental behaviour by the individuals: n n n n sky-divers/high risk sports smokers alcohol-related problems drug addicts coronary artery disease obesity drug addiction sexually transmitted diseases (STD), HIV n genetic disorders n genetic testing

Rationing in the NHS n “ The NHS - just like every other health system in the world, public or private - has never, or will never, provide all the care it might theoretically be possible to provide. That would probably be true even if the whole of the UK gross domestic product was spent on health care. So within our expanding health system there will always be choices to be made about the care to be provided. ” Alan Milburn 2000 (former Secretary of State for Health)

Allocation of health care resources n priorities for the allocation of resources for and in healthcare: n mega-allocation n n macro-allocation n n determine how much should be expended and which health care services should be available; decisions at governmental level meso-allocation n n what percentage of society’s resources should be spent on health care purchase plans - trusts micro-allocation n n which individual gets which goods or services rationing or triage decisions determine who will receive the available resources

Health care under the NHS Limits to provision n List some examples:

Right to Health care? n World Health Organisation (WHO) n Promotion of Rights of Patients in Europe 1995 n EU European Social Chapter n Chapter 13 n European Convention Of Human Rights n Article 2 n UN Universal Declaration of Human Rights n Article 25 n Patient’s Charter

Legal Framework of the NHS n National Health Service Act 1977 n n n Section 1: broad general duty imposed on the Secretary of State ‘to continue the promotion in England Wales of a comprehensive health service to secure improvement in the physical and mental health of people and in prevention, diagnosis and treatment of illness’ Section 2: grants the Secretary of State power to provide “such services as he considers appropriate” for the purpose of discharge of his duties Section 3: that such provision is “to such extent as he considers necessary to meet all reasonable requirements. ”

Statute Law (cont) n Specific statutory duties n n n Mental Health Act 1983 Chronically Sick and Disabled Persons Act 1970 NHS and Community Care Act 1990 n Anti-discrimination legislation Race Relations Act 1976 n Sex Discrimination Act 1975 n Health Act 1999 n Imposes a statutory duty on health authorities/PCTs/NHS Trusts to monitor and improve quality of health care n Human Rights Act 1998 n

Judicial Review n NHS rationing of health care resources n judicial review of rationing raises questions of: n n n legality of rationing – statutory duties; priority setting; services within NHS; NHS Directions and Guidelines reasonableness of rationing - allocation of resources; clinical freedom; evidence-based guidelines: NICE; discretion procedural propriety – processes for consultation and appeal

Access to health services Public Law cases n R v Secretary of State for SS ex p Hincks (1980) n provision of services not absolute – subject to resources n R v Central Birmingham HA ex p Walker (1987) n court will not interfere unless public body has acted unreasonably n Re J (1990) n resources limited and choices by health authorities on allocation necessary n R v Cambridge HA ex p B (1995) n court not the arbiter of merit; health authority legally charged with making decisions

Public Law cases (cont) n R v North Derbyshire HA ex p Fisher (1997) n n Health authority should not operate a ‘blanket ban’ on treatments A, D and G v North West Lancashire HA (1999) n rationing acceptable but must be based on proper assessment of competing need

Civil Law/negligence n Breach of statutory duty n Re HIV Haemophiliac Litigation (1990) n must establish a statutory duty existed; duties under NHS Act 1977 not intention of Parliament to impose duty enforced by civil action n Negligence n DHSS v Kinnear (1984) n n able to challenge operational issues but not policy issues Bull v Devon AHA (1993) n Health authority must carry out its functions properly

Summary n Courts unwilling to be drawn into policy questions concerning distribution of finite resources claims based on failure to provide a service because of insufficient resources unlikely to succeed n ‘blanket bans’ on a particular procedure have been challenged successfully n

Some questions n How much of society’s wealth should be spent on health care ? n How should the health care funds be allocated n prevention vs. treatment n What categories of disease should have priority, n HIV or cancer? n infertility treatment n cosmetic surgery n Within each disease category, which technology or procedure should be funded? n transplants n How far can/should doctors be advocates for their patients and ignore the public and societal implications of their decisions?