Just Doctoring: Medical Ethics for the 1990s
In the last chapter, I may have created an impression that I perceived doctors as monopolists, interested in defending their power over patients at any expense. I may have also created the impression that there was concerted and conscious action on the part of the profession to maintain a set of prerogatives at odds with the normal principles of the liberal state. In my focus on the political context of medical practice, I may have alienated readers who are confident of the good intentions of their physicians, as well as physicians who feel the characterization of them as being concerned as much with power and profits as with their patients is deeply unfair.
I intend now to counter these negative impressions and to begin the constructive portion of the book. Having elaborated the conceptual framework that I believe is the necessary foundation for thinking about medical ethics in our society, I would like to move forward with some proposals, which will only be as helpful as they arc concrete. To maintain a sense of the real world, I will use examples from my own medical practice, and from the experiences of my colleagues.
My colleagues are fairly representative of the kind of physicians who have become commonplace in the last twenty years. We are all employees of one hospital, with no direct fee-for-service relationships with our patients. We provide the primary internal medicine practice for our medical center. We share the responsibility of being on call and teach residents and medical students. Many of my colleagues are women. My colleagues' research interests are in such areas as the con-
duct of the medical interview and the education of medical students. They are committed to providing excellent primary care to their patients, and would readily respond that they owe their patients special duties, including respect for the patient's autonomy. They practice medicine not out of an interest in profit, although we are well paid, but because it is a challenging and enriching occupation. They are not the power-hungry, self-centered individuals I may have portrayed in the previous chapter.
Nonetheless, many of my colleagues are wary of state influence over medical practice. They think a patient is best treated if the physician follows her personal and ethical code in dealing with sensitive issues. The division between law and ethics is carefully drawn; there is no sense of the "law as integrity" or as having a moral purpose in itself. Nor do most of my colleagues think that medical ethics should define a public role for physicians, or that health law and policy should represent moral challenges for physicians.
Rather, they tend to think, as do most physicians, that medical morality is restricted to the doctor-patient interaction. My colleagues would never lie to patients, or consciously treat them in a paternalistic fashion. They make every effort to be honest and to help their patients cope with illness. Most are far more adept at this aspect of medical practice than am I. In other words, they respect the patient's autonomy.
Yet I am sure they feel, as I do, that this respect for autonomy is not the same as respect for the autonomy of other individuals in the liberal state. For example, I occasionally do some consulting on hazardous substance litigation. I respect the autonomy of the person who hires me, and I deal with him honestly and openly. I rarely have a contract, but he and I respect the efficiency of the market and the constraints it imposes. In other words, I am paid appropriately and he gets the work he expects.
This is not the relationship my colleagues have with most of their patients. Recently one of my colleagues took care of a lawyer in his late thirties, Mr. Z., a very intelligent gentleman with a job at a respected firm. His girlfriend and his father are both physicians. He came to see my colleague, Dr. A., for a well-patient visit, "just needing a physical." On examination, he was fine and Dr. A. said she would see him in one year. Several weeks later, however, Mr. Z. called somewhat concerned. He was having dark diarrhea and felt weak when he stood. Dr. A. recommended he come to see her at the office that day. As Dr. A
suspected, Mr. Z. was suffering from gastrointestinal bleeding, and he was hospitalized.
The story does not end there. Mr. Z. did not want to come to the hospital that first night. Dr. A. pointed out that Mr. Z. would be endangering himself if he went home, although his blood counts had not dropped very much. Because Dr. A. wanted him to stay in the hospital, she painted a fairly grim picture for Mr. Z., but she was willing to accommodate him if he wished to go home. He consulted relatives and friends and decided to stay.
The next day there was another similar discussion. The gastroenterologists had been consulted and recommended endoscopy, in which a small device is passed into the stomach to look for ulcers. The patient was hesitant. Dr. A. did not feel strongly, as her understanding of the medical literature was that endoscopy at this point would be optional. Dr. A. said she would respect his decision, although she felt the slight uneasiness that comes with disagreeing with subspecialists (presumably they know best). In addition, she would have been more confident about treatment if they could confirm what they all expected, a small ulcer.
Over the night, Mr. Z. changed his mind and agreed to have the endoscopy. His decision was the product of his own careful reasoning. But he also expressed his fears, and sought Dr. A.'s advice. He told her that the illness had made him feel vulnerable and that he did not like hospitals. She gently reassured him, revealing she felt the same way when sick. After a long, somewhat personal conversation about Mr. Z.'s fears, he felt much better. Neither patient nor doctor understood their relationship as being similar to one in which Mr. Z. had hired Dr. A. to consult about a case!
The endoscopy surprisingly revealed an ulcer with a bleeding artery in its crater. Mr. Z.'s counts dropped still lower, and Dr. A. consulted the surgical staff. It was necessary that Mr. Z.'s counts had to be stabilized before surgery, but they showed no sign of increasing over the course of several days, indicating some bleeding still at the site of the ulcer. A special X-ray of the stomach, called an air contrast upper GI series, did not reveal any bleeding. Yet Mr. Z.'s blood counts remained low.
As might be expected, these clinical issues caused some changes in the attitudes of both patient and doctor. The patient, while not intimidated by medical authority, seemed to want to take a less active role in the decision making. Feeling more vulnerable, he wanted med-
ical expertise to guide the decision making.1 However, as he recovered, he became frustrated with the conflicting diagnostic reports, and with the physicians' inability to pinpoint the nature of the bleeding and to treat it. He had many questions, and Dr. A. and others labored to answer them.
Mr. Z. maintained his autonomy. He forced doctors to share their uncertainty with him by asking difficult questions that probed the doubts doctors prefer to keep to themselves. Dr. A. wanted to maintain Mr. Z.'s confidence in her medical knowledge, but she knew she could do this only by being honest with him. Indeed, his care was made less difficult because he was willing to help make decisions, and to take some authority and responsibility for his treatment. To this extent, the relationship approximated a typical relationship in a liberal state, approaching the norm encouraged by advocates of patient autonomy. Having said this, we still see in the case of Mr. Z. how the relationship of doctor and patient defies such definition.
Just after his first endoscopy, Mr. Z.'s blood counts had stabilized. One Saturday night, they fell again. He was concerned and called Dr. A. Dr. A. reassured him this was common and told him not to worry. Mr. Z. was uncertain when the blood counts would be checked again, and was quite anxious. To allay his fears, and to ensure the counts were being checked properly, Dr. A. drove over to the hospital, excusing herself from a dinner party. Mr. Z. was very happy to see her, and the counts were checked appropriately.
This kind of visit is one of the most gratifying aspects of medical practice. But it is not really part of relations between citizens in the liberal state. Dr. A. could have called the house officer physicians and ensured that the blood counts were to be checked. That would have been adequate. Yet it would not have fulfilled the sense of duty and affection Dr. A. and other doctors have for their patients. Dr. A. knew quite well the patient would be reassured to see her and to know someone was watching out for him. This visit did not decrease his autonomy. It did not remove the relationship from the liberal state or help maintain Dr. A.'s power over Mr. Z. Rather it involved moving beyond the relationship required by the liberal state. While I would hardly call a simple visit like this one a virtuous or altruistic act, it does represent a morality in which more than a simple "contract" between two autonomous people is expected.
Perhaps this is the best way to think of medical ethics in the liberal state of the 1990s. The patient is owed all the respect due any other
person in the liberal state. The fact that he bears rights as a citizen should preclude any form of medical paternalism. Moreover, the doctor-patient relationship should remain firmly within the public morality of the liberal state, and the market should provide procedural justice in health care. This will eliminate the physician influence that created a health care system centered on, and highly profitable for, doctors. But the physician's ethical code should still comprise duties to patients that go beyond those normally owed other citizens in the liberal state. Altruistic behavior should be expected of physicians in their vocation as caregivers. So long as the justice provided by liberal laws and the public morality of the state are respected, the patient should come first.
Of course, this means the patient should come first not only in the intimate dealings between doctor and patient, but also in the relations the physician has with the institutions of medical care. As noted in chapter 3, one of the most debilitating aspects of medical ethics in this country in the first three-quarters of this century was the proposition that the doctor should consider only the patient, and that institutional aspects of medical care should be ignored. This code isolated doctor and patient from market and governmental control, creating an enormously expensive system of care. This kind of isolation was wrong, as I have argued. Medicine must heed the public morality of liberalism.
Ending the isolation of the doctor-patient relationship requires not only respect for patients' rights but also concern for the institutions in which medical practice occurs. In the liberal state, a medical ethics that respects rights but expects altruism in the case of the individual must also provide guidance for action in the realm of politics and economics.
Fortunately, these political and economic issues do not arise in the care of every sick patient. Returning to Mr. Z.'s case, for instance, there is little in his care that would raise larger social issues. One could, however, imagine circumstances in which his case might do so. For example, suppose that instead of working for the hospital and medical group, Dr. A. worked for an aggressively for-profit health maintenance organization. Say the HMO allowed only ten days for treatment of an acute gastrointestinal hemorrhage. As the tenth day approached, Dr. A. knew that she would face personal economic penalties if Mr. Z. stayed in the hospital past that deadline. The HMO would only be guilty of integrating some marketplace concepts into health care. But Dr. A. would suffer economically, and she might be induced to send
the patient home earlier than we would prefer. Perhaps this example only shows the personal ethical dilemmas that arise in for-profit medicine, but perhaps it also raises questions about the extent to which we should regulate the market in health care.
Consider a more poignant if not tragic example. Later when I go to my office, I will be seeing Mrs. J. She is always several minutes early for her appointment, delightfully polite to the people in the office, yet painfully shy. She carries herself with a great deal of dignity. She likes early afternoon appointments, from which she can leave directly for work at an electronics plant where she assembles microchip boards. She does not earn much there, and she is routinely laid off every, couple of months so that the employer does not have to pay for health insurance. She is one of the working poor that our fiscally embattled state is committed to helping.
Her medical problems are chronic and fairly severe. She suffers from hypertension (high blood pressure) and diabetes. She also has very. high cholesterol levels in her blood. Her high blood pressure has been difficult to control, and she is now on three medications. Diet alone has done little to help her high cholesterol. Given that she has a family history of heart disease and is fifty-five years old, she has a very high risk for developing a heart problem. I would like to use a new medication to bring her cholesterol down, but she cannot afford it.
During each visit, she takes out her medicines and we go over the cost of each. We try to decide what to add, and then figure out what to subtract in order to bring the total cost down. Right now, we have controlled her blood pressure and lowered her cholesterol with a less effective medication than the one I would like to use. At first, this process seemed to me to be a challenge, especially in working out the details of the antihypertensive regimen, which became more and more peculiar because of Mrs. J.'s inability to pay for the typical medications. Now it saddens me. To make matters worse, Mrs. J. was laid off for four weeks owing to poor demand for her company's products. Her regimen of medications will have to be narrowed. In the meantime, someone has left a copy of Automobile magazine in our waiting room. Paging absentmindedly through it, I notice that Ferrari is selling over a thousand cars costing $160,000 each in the United States this year. This raises questions in my mind regarding the distribution of goods in our society.
I have to ask, do not I as a physician who believes in a fundamental
responsibility to patients have some duty to help people like Mrs. J. obtain medications at a lower cost? Once I have cast aside the isolation of medical ethics of the past, do I not have to address the social and economic issues that harm my patients' health? Do I not have duties to address policy issues?
We live in a liberal state, and the public morality of the liberal state provides important parameters, guaranteeing justice as fairness and essential liberties. The particulars of the governance of that state are not, however, cast in stone. The liberal state is flexible. If enough citizens believe that the market should be regulated to create a cooperative polity, this is done. Citizen participation creates reform in the liberal state.
Thus while physicians should welcome integration of the principles of liberalism into medical care, with their focus on patient rights, decreased physician hegemony, and market efficiency, physicians should also be expected to modify those principles wherever necessary to protect patients. Just as we are willing to visit sick patients late at night, physicians should be willing to address political and legal issues to help our patients. In the rest of this chapter, I will discuss the nature of this public medical ethics that accepts liberalism yet still puts the patient first.
The Idea of Professional Ethics
Since I am now preparing to develop a theory of professional medical ethics, it is necessary, to return briefly to a more conceptual discussion. First, it is important to specify my understanding of the nature of a profession, and its relationship to an ethical code. As discussed in chapter 2, sociologists have long been interested in professions, and especially in medicine. Weber, as interpreted by Parsons and the functionalism school of American sociology, has had great influence on our conception of a profession.
Michael Bayles has elaborated and summarized the Weberian view.2 He notes that a profession has three aspects. First, the profession must provide important, if not essential, services. Thus lawyers, teachers, and physicians are seen as playing especially important roles or func-
tions in our society. Second, a profession should have monopoly control over a certain body of information. Again, lawyers' knowledge of legal matters and doctors' knowledge of medicine are the best exam-pies. The lay person would not claim to understand to any great extent the knowledge of the physician. Moreover, professions maintain this monopoly by controlling access to it; they accredit the schools where students learn the trade. This highlights the third aspect of professions for Bayles: there is no public control over them. Society expects the professions to police themselves,
What Bayles does not discuss at the time he defines the professions (although it is the topic of his book) is that they all possess a self-assumed ethical code. Society. grants such extraordinary authority to professions because society trusts in the professions' adherence to codes. These codes, and the moral intent they reflect, are meant to regulate the relations between professions and the public, especially the client.
Bayles characterizes five models of relations between clients and professionals. They include agency, contract, friendship, paternalism, and fiduciary models. The agency and contract models are similar to what I have called the formal relations between citizens in the liberal state. Both sets of relations involve highly formalized expectations that bind the parties overtly. The friendship and paternalism models draw closer to the nature of medical ethics found in this country before 1975. The physician acted as a friend, but was prepared to act paternalistically and overlook the patient's autonomy, whereas the fiduciary relationship involves trust without usurpation of autonomy. The professional in a fiduciary relationship acts on behalf of the patient but respects the patient's rights. It is this kind of relationship that I would argue doctors should advocate as the norm of medical ethics.
Others would say that I am mistaken even before I start, on the premise that the liberal state itself, not physicians, should dictate the nature of professional ethics. Veatch, for instance, believes that any efforts by physicians to dictate the nature of medical ethics will lead to usurpation of patient rights.3 Bayles takes the same position. He argues that professions are meant to serve society, and thus society should develop a set of expectations for professions.4 Many observers have called for a decrease in the power of doctors to monopolize the means of entry into the profession. The lack of public trust in the profession and the attendant decrease in prestige have been noted by
many sociologists.5 That trust and prestige are now sorely missed by many physicians, who often have failed to see their own part in the loss.
While acknowledging the causes of the "deprofessionalization of medicine" and the good intentions of those who advocate further erosion of the professional model and its monopolization of power, I would like to offer a model of an ethical medical profession that defines for itself the nature of ethical practice. I do not see medical ethics as a mere pledge or a matter of group loyalty.6 Nor do I see medical ethics as the consensus that the profession develops.
Rather, I understand professional ethics in medicine as an evolving set of principles. Physicians participate in this evolution, as do all members of the liberal state. The primary principles in medical ethics are the special needs of the patient and the commitment physicians have to the patient's well-being. With this commitment, there must be a capacity for altruistic behavior beyond that which the liberal state can expect of citizens generally. In addition, however, there must be respect for the public morality of liberalism, especially respect for patients' rights, their liberty, the integrity of the law and the sense of justice it reflects, and the pure procedural justice of the market. This sense of medical ethics calls for debate within the profession and active efforts by its members to make rational arguments that convince their peers of the necessity of certain ethical duties.
For example, many people are quite concerned about the problem of physicians' refusals to care for patients infected with the human immunodeficiency virus (HIV).7 One could argue that health care professionals have a duty to treat all patients, including those with HIV infection, despite personal risk. Some physicians have stated unequivocally that any theory of medical ethics requires that physicians provide care for AIDS patients.8 Indeed, both the American Medical Association and the American College of Physicians maintain that physicians are ethically required to care for those with HIV-related illnesses.
Do these assertions by some physicians and organizations of physicians necessarily mean that there is an ethical obligation for physicians to care for people with HIV-related disease? The answer is no. Individual physicians' opinions about ethical duties are helpful as a form of encouragement, but they carry no more intellectual force than do opinions that doctors have no ethical responsibilities. Professional societies' ethical guidelines arc at best codifications of a professional
censensus. They do not themselves create obligations of an ethical nature. Indeed, many physicians deny they have any duty. to care for AIDS patients.
To understand the scope of the debate over the duty to treat every patient, one must understand the fluid nature of medical ethics and the difference between individual and professional ethical obligations. The critical elements of an individual's ethical obligations are that the obligations are self-assumed and that they derive from a set of rational principles. Professional ethical obligations are those that exist because the rational principles that give rise to them are closely related to the enterprise of the profession. Professional ethical obligations are related to individual ethical obligations in that both are self-assumed and both involve reasoning from principles to actions.
Professional ethical obligations are meant to bind the members of the profession. Of course, there is a possibility of disagreement within the profession about those obligations. Anyone can assert that members of a profession should recognize a certain ethical obligation. Someone else may assert that the ethical obligation does not follow rationally from principles of ethical action and thus should not be recognized. In this case, the second individual asserts that the profession will not recognize the obligation asserted by the first because the obligation is not reasonable. Thus any single assertion about professional ethical obligations does not mean there is an accord about those obligations.
Indeed, there is a dynamic relationship between individual assertions about professional ethics and an accord about professional ethical obligations. This dynamic relationship creates the fluid nature of medical ethics. Individuals may put forth their own interpretations about professional obligations. They will try to convince other members of the profession that they are correct in their choice of principles, and in their reasoning from those principles to action. Others will counter these assertions and disagree both about principles and the reasoning from those principles to action. This lively debate can and often does lead to an accord about ethical obligations.
Of course, not all ethical obligations are the subject of controversy. The paradigm of the debate can also explain ethical obligations upon which there is agreement. For example, physicians have argued that one principle is to do no harm to their patients. Understanding that sick patients are especially vulnerable both emotionally and physically, and that the patient's sharing of intimate life details is necessary for
optimal therapy, doctors recognize an ethical obligation not to engage in sexual relations with patients. Since most physicians agree with these principles and reasoning, there is professional accord about this obligation.
I call these ethical obligations upon which there is professional accord or consensus "mature professional ethics." The public can and does rely on these obligations. They are the resolutions, at least in a theoretical sense, of debate. Issues that still provoke lively debate are not yet mature professional ethics. In addition, professional ethical propositions once thought to be mature can come under new scrutiny, the subject of active reflection.
Indeed, I have argued that the mature (in the sense of being settled, not particularly well-reasoned) professional ethics of the early 1970s has come under intense scrutiny over the past ten or fifteen years. As we have seen, there are many reasons for this. Foremost, the incredible costs of health care awakened society to the need for change in our medical system. The marketplace has as a result become a more dominant force in medical care. But as the medical profession has been drawn closer to the values of the liberal economy, there has been less and less agreement possible about the fundamental principles that should guide decisions about right and wrong. This is perhaps the great weakness of the liberal state. Liberalism, which celebrates individual choice, tends to disrupt the consensus that leads to mature professional ethics. The social morality of our society is incredibly diverse. For these reasons, many moral philosophers have begun to focus on contextual decisions, and to forego efforts to identify fundamental concepts of duty and obligation.
Where does this leave us with regard to the ethical obligation to treat AIDS patients? We cannot easily re-create a time in which there was less pluralism in medicine. Indeed, there are many reasons to prefer the changing social context of medicine and physician's freedom to partake in, and be guided by, the overlapping consensus that defines the liberal state. However, as we shall see in a later discussion, medicine imbued only with the marketplace concepts and the principles of liberalism may prove to be quite hostile to the idea of an ethical obligation to treat all patients, including those with HIV-related disease. At this point, however, we can only say that the dynamic process is ongoing, and that there is still disagreement within the profession about a duty to treat all patients.
I will return to this issue later in the book. Indeed, most of the
remaining chapters will present a series of arguments about particular subjects I would like to submit to the ongoing medical ethics debate. I will be arguing that a new medical ethics should embrace certain propositions, given that medical ethics must accept the liberal public morality, yet move beyond that morality in the direction of altruism. Before delving into these specific arguments, however, I will indicate in more detail the broader role I see for medical ethics in the liberal state.
The Cooperative Liberal State
In previous chapters we noted the difference between negative and positive freedom. In the liberal state, these two types of freedom are in tension. The liberal state, as I have defined it, cannot be wholly libertarian (as conservatives like Nozick would suggest). As Rawls notes, there must be a sense of cooperation among citizens for a polity to exist. In Rawlsian terms, the rules of liberalism are convened from a mere modus vivendi to an overlapping consensus by the cooperation between citizens.9
Indeed Rawls and other liberals have arrived at such conclusions only after becoming the targets of political philosophers who believe that the concept of liberalism, defined for example in A Theory of Justice, is too individualistic to constitute the grounds for a community. The "communitarian" critics of liberalism are many. A review of one such critic's work can help highlight the deficiencies of the theory of classic liberalism and also suggest some different aspects of the modern liberal state as I have defined it. Moreover, notions of community in liberalism can help define the appropriate place of medical ethics.
Throughout much of his influential book, Liberalism and the Limits of Justice, Michael Sandel disagrees with Rawls and other liberals. He begins his critique by defining what he calls deontological liberalism, whose core thesis he describes as follows:
Society, being composed of a plurality of persons, each with his own aims, interests, and conceptions of the good, is best arranged when it is governed by principles that do not themselves presuppose any particular conception of the
good; what justifies these regulative principles is... that they conform to the concept of right.10
For the liberal the primary good is justice, along with the neutrality of rights, that guarantees liberty.
In deontological liberalism, a nonempirical foundation justifies the primacy of justice. As Kant asserts, the basis for primacy of justice and the importance of rights is the autonomous will of a rational man.11 The bearer of rights is the deontological self, or what Kant calls the noumenal self. Rights are therefore secured not by social interest or desires, but by the nature of relations between autonomous beings. This foundation of the notion of rights in individual persons provides the primacy for negative freedom secured by rights. Thus the public morality of the liberal state, justice as fairness, outweighs any other collection of social moralities; negative freedom takes precedence over positive freedom.
Sandel has two objections to this foundational role for rights and justice. We can call them sociological and philosophical objections. The sociological objection is that the neutrality of the public morality of the liberal state is untrue. As Sandel puts it: "All political orders thus embody some values; the question is whose values prevail and who gains and loses as a result. The vaunted independence of the deontological subject is a liberal illusion. It misunderstands the fundamentally social nature of man."12
Sandel argues that the neutrality of liberal rule, of the primacy of negative freedom, is not neutrality at all, but an endorsement of a particular social order brought about by the market. Sandel never moves from this argument to one concerning the class nature of society or the profit certain classes extort from others. Rather than pursuing a Marxist path, he shifts grounds slightly to emphasize that human beings do not have neutral relations with one another, but instead enjoy relations imbued with a variety of social meanings. The example he uses is the family, and he endorses the rich relations between family members as a model that makes greater sense for society than the proto-contractual models of market liberalism.
Sandel's philosophical objections to a foundational role of rights continues in this vein. He argues that modern liberals have had to recast Kant in order to move Kantian political and moral philosophy away from Kant's noumenal world. Sandel argues that Rawls and others have recognized that deontological liberalism must have empirical
grounds. The original position is not—it cannot be—a completely and essentially idealistic world in which there are no needs and desires. Understanding this, Rawls addresses the primary goods that individuals would want to apportion in the original position and tries to create a balance between a "thin" and a "thick" theory of the good. But in so doing, Sandel believes, Rawls irretrievably harms the justifications for the emphasis on liberty and justice and neutrality that issue from Kant's synthesis. As he notes, Rawls cannot find the proper balance between Kantian metaphysics and an empirical basis; that is, Rawls fails to achieve "a standpoint neither compromised by its implication in the world nor dissociated and so disqualified by detachment."13
Throughout Liberalism and the Limits of Justice Sandel employs these arguments to undermine the liberal insistence that neutral justice and negative freedom define relations between citizens. He argues that once one descends, even thinly, to the empirical world, it is no longer clear why justice should be the primary means for ordering relations between individuals. Sandel, for one, can imagine a number of associations in which brother- or sisterhood, or a sense of allegiance to a common cause, would provide the means for ordering relations. He sees no reason why individual virtues and group solidarity should not provide grounds for a real community, in which justice is secondary. Again, however, he does not elaborate a Marxist utopia; he only suggests that communitarian values are also important. Liberalism is not exhaustive.
Sandel does allow that Rawls sees nothing wrong with communitarian values.14 Sandel also suggests that some communitarian values are alive in the liberal state. For instance, he argues that affirmative action is sensible only as a communitarian project; it cannot be understood as a portion of a truly liberal state.15 However, since he refuses to step toward Marxism, and yet appears to reject liberalism, it is never clear what Sandel thinks communitarianism should be. Is it a philosophy of a new state or is it an adjunct to liberalism? What Sandel seems to be saying is that liberalism has certain limits, and that the best community would be one that moved beyond these limits to establish some grounds for communitarian ideals.
Amy Gutman has made this notion explicit in an article in which she criticizes Sandel and other communitarians.16 Gutman argues that Sandel has underestimated Rawls's theory. She notes that "Rawls need not claim that 'justice is the first virtue of social institutions' in all
societies in order to show that the priority of justice obtains absolutely in those societies in which people disagree about the good life and consider their freedom to choose a good life an important good."17 For liberals, justice is absolutely necessary in a state that favors pluralism. It is my thesis, as well as that of Gutman, that modern liberalism can accommodate some of the virtues of communitarianism within its commitment to equal concern and respect for each individual.
The liberal need not, however, exchange the emphasis on personal liberty for a poorly defined sense of communal needs, as the more radical communitarian may require. For example, Gutman objects to Sandel's either/or classification of political theories: "Either our identities are independent of our ends, leaving us totally free to choose our life plans, or they are constituted by community, leaving us totally encumbered by socially given ends."18 Gutman's point is that there is no need to choose just one approach. She argues that communitarian policies do have a place within the liberal state. While justice provides the primary virtue for the public morality of the liberal state, communitarian virtues and an ethics of social cooperation can flourish. The social morality of the state has plenty of room for communitarian enterprise, so long as individual freedom is respected.
The modern liberal, unlike the classic liberal, realizes that an equal concern and respect for each human being is the key to a just polity. This requires personal liberty, but it need not be unfettered personal liberty. At times personal liberty must be constrained in order to decrease substantive inequalities in society. Thus the market, the preferred distributional mechanism in the ideal liberal world, may have to be modified in a manner that obstructs some individuals' choices, so that others may enjoy equal opportunities. These modifications of the law may well reflect what Sandel calls communitarian values. For example, affirmative action binds some people's liberty so that others may enjoy opportunities traditionally denied them. The modern liberal accepts these modifications, many of which can be characterized as communitarian. Communitarian reforms need not threaten the essentially liberal nature of the state. While justice is the first virtue of the state, cooperation and community are encouraged. Communitarianism helps to define the cooperative aspects of the modern liberal state and reminds liberals of the importance of community, of the importance of monitoring the antiegalitarian aspects of the market.
Some may argue, however, that the emphasis on equality and the
acceptance of communitarian values make what I call modern liberalism into a form of socialism. I counter by reminding these critics that the guiding prescriptions of this state are negative freedom and the market for purposes of distribution. Restrictions on the market, and on negative freedom, may be necessary at times to reiterate the equal concern for and respect of the individual. Modern liberals will not accept a community definition of rules that restricts individuals' choice.
I will use communitarianism as a model for the function of medical ethics in the liberal state. I would propose that we physicians think of medical ethics as a communitarian project that respects the public morality of the liberal state, as well as the procedural justice of the market, vet strains to improve liberalism by helping create a community for health care. This builds a foundation for a medical morality based on physicians' altruism whereby the patient indeed "comes first," but also keeps his autonomy. It also encourages a social ethic for physicians that enables them to understand the law and policies of health care and to strive for a form of health care that benefits patients in a just manner.
Michael Walzer's notion of spheres of justice enriches this theory of medical ethics. Walzer, searching for a means to guarantee the virtues of egalitarianism, suggests that there are different spheres of justice within a state,19 corresponding to the fact that there are different goods, each implying different distributional concepts. Thus a medical sphere might be partially detached from the usual market sphere because one would want to distribute health care differently from the way one distributes other goods. The sphere of justice for health care would thus be somewhat independent of the procedural justice of the market, yet the values of the liberal state would remain primary.
This does not mean that physicians can be free to set up a distributional pattern that benefits physicians. Walzer is very clear that in the state he envisions, the power of professions would be carefully constrained. Indeed, Walzer notes that "any fully developed system of medical provision will require constraint of the guild of physicians."20 I would argue that one aspect of medical ethics should devote attention to political and economic issues, but that attention should be driven by concern for one's patients and should voluntarily constrain any power-maximizing aspects of the profession.
In this theory of medical ethics in the liberal state, physicians should accept the market as the prime means for obtaining procedural justice
in the liberal state, but they should also be willing to modify it when good medical care requires distributional patterns that the market cannot fully provide. Physicians must respect the integrity of the law, but also be willing to work democratically to modify the law when it unnecessarily constrains the communitarian aspects of medical care. An altruistic medical ethics, both in direct relations with patients and in the development of a just system of health care, will then contribute to a sense of social cooperation in the liberal state.
This is how I believe medical ethics should function. But I will be successful in defining a new medical ethics only insofar as I can convince others it is sensible, and I will only convince people if I can show more clearly the shape of medical ethics as a form of social cooperation in the modern liberal state. Indeed, it will be important to begin to move, in the next few chapters, from my reified notion of modern liberalism, to particular liberal states—especially the American one.
Doctor-Patient Relations in the Liberal Community
I have argued that medical ethics in the future must have two not entirely separable aspects. One retains a focus on relations between doctors and patients. The other moves beyond that focus to address economic and political issues in health care. Traditional ethics allowed physicians to ignore the overall social repercussions of medical ethics. This is no longer possible, even if it were desirable. In accepting the public morality of the liberal state, physicians must develop a medical morality that combines selfless action with the goal of promoting social cooperation and a sense of community within the liberal state. We must now see how my notion of medical ethics takes shape in the setting of the doctor-patient relationship.
While not employing the same theoretical framework I have, many other commentators have addressed the problems of combining traditional notions of medical ethics with respect for individual liberal. In the medical ethics literature, these problems usually take the form of a debate over the relative merits of an autonomy-based medical ethics versus a beneficence-based one. The supporters of the latter, almost always doctors and their collaborators, argue that medical ethics must
be motivated by the best interests of the patient. On the other hand, proponents of autonomy-based ethics demand that patients' choices be respected.
At first glance, there would appear to be little real debate between the opposing factions: will not patients usually make decisions that are in their own best interests? The answer is yes, but medical ethics thrives on tough cases. The doctor may decide in a difficult case that the patient's decision is wrong, that the patient is incapable of making the decision he would make if he were healthy. The beneficence model therefore calls for different action than would autonomy-based ethics.
Respect for beneficent practice runs deep in medical traditions. Veatch has noted that the Hippocratic oath itself is paternalistic and consequentialistic.21 The physician is instructed by Hippocrates to follow the system that according to her own judgment will benefit the sick. Such paternalism raises deep suspicion in a liberal state and has caused many ethicists to create defenses against it on behalf of patients. These defenses usually center on covenant models, in which respect for patient autonomy is formally integrated into the moral relationship.22
In at least partial recognition that traditional medical ethics was out of step with the liberal state—leaving aside my claim that the liberal state has been actively seeking to reintegrate the practice of medicine into its broader public morality—new models of beneficence that include greater respect for autonomy have been developed. Pellegrino and Thomasma have led the way in this regard.23 They argue that medicine is beneficent at root because patient problems are the primary concern of medicine, harm to patients must be avoided, and both patient autonomy and physician paternalism must be superseded by a focus on the patient's best interests. They elaborate on this basic proposition by noting that the patient's existential experience is the basis for any moral reasoning in medicine, that doctors and patients must negotiate when difficult situations arise, that any medical decision should be based on the consensus of doctor and patient, and that the moral values of both parties must be respected.24 In short, Pellegrino and Thomasma understand medical ethics as a moral relationship between two individuals, each of whom is worthy of respect.
But we have seen how a singular focus on the doctor-patient relationship has been associated with a set of beliefs that legitimated the moral and economic power of physicians over patients. This is not to say that Pellegrino and Thomasma have bad intentions. To the contrary, much of their argument is fueled by a belief in, and insistence
on, an altruistic medical ethics. Indeed, they argue forcefully that sickness and disease weaken patients' capacities and that doctors' devotion to care is a part of the healing process.25 Health is not a relative value for physicians, but a primary one.
Most patient-rights advocates are unconvinced even by this compromised beneficence model that Pellegrino and Thomasma outline. Their major objection is that the role of physician in this model has great potential for abuse. Jay Katz has outlined the reasons why well-meaning physicians could abuse the authority granted them by the beneficence model, In his careful analysis of the doctor-patient relationship, The Silent World of Doctor and Patient, Katz explores the relation of doctor to patient through historical and legal research and from a psychoanalytic perspective. His conclusion is that doctors have never placed a premium on communicating with their patients and in fact have significant psychological and professional obstacles to overcome before such communication will be possible.
Without attempting to do justice to the texture of his arguments, I would like to summarize some aspects of Katz's book that explore the reasons underlying many observers' fears regarding "beneficent" physicians. In particular, Katz has formulated three key insights. The first of these is the historical point that there has never been any emphasis in medical ethics on open discussion with the patient. Katz notes that "from the decline of the Greek city states to the eighteenth century no major primary or secondary documents on medical ethics... reveal even a remote awareness of a need to discuss anything with patients that relates to their participation in decision making."26 Moreover, as modern professional ethics was developing in this country, physicians chose to emphasize the lonely role of the doctor as decision maker, thus precluding patient participation. While some may differ with Katz on certain points of this analysis,27 it is difficult to escape his conclusion that the historical relation of doctor to patient is one of silent authority.
The second and third points I have culled from Katz's book concern the psychoanalytic notions that underlie physicians' opposition to open communication and patient decision making. Katz introduces his psychoanalytic perspective by instructing us about the importance of the rational and irrational in any relationship. Autonomy itself, he argues, relies on the "simultaneous operation of rationality and irrationality."28 One of the most troubling parts of the doctor-patient relationship is that doctors assume they are completely rational, and
that patients are generally irrational. This tends to preclude self-examination on the part of physicians and closes off the possibility of real communication with their patients.
The obstacle to open communication represented by the physician's failure to consider his or her own irrationality is buttressed by the manner in which physicians cope with uncertainty. Katz argues that uncertainty places a psychological burden on the doctor, and this burden is typically relieved by denying the existence of uncertainty. "Physicians' denial of awareness of uncertainty... makes matters seem clearer, more understandable, and more certain than they are."29 Even more disconcerting is Katz's statement that "professing certainty serves purposes of maintaining professional power and control over the medical decision-making process as well as maintaining an aura of infallibility."30 Thus physicians are motivated to profess certainty and to overlook the interplay of rationality and irrationality in their interactions with patients.
Certainly, Katz's insights here are fundamental. In the example I used previously of Mr. Z., the lawyer with gastrointestinal bleeding, one can uncover exactly the motives Katz discusses. Dr. A. really wanted to be certain, and she had to resist constantly the desire to appear certain to the patient. Moreover, Dr. A. wanted to view the patient as irrational when he balked at being tested, but on reflection Dr. A. could see she was the one who was irrationally "digging in" and refusing to consider options.
Viewed in this light, it is easier to understand the suspicion many harbor regarding physician beneficence. Dr. A. wanted what was best for Mr. Z. and was even willing to go far beyond any contract in her dutiful approach to his care; but Dr. A. also wanted some authority. She wanted to exercise some control, given her greater knowledge and experience in dealing with sickness. Mr. Z.'s desire to control matters thus appeared irrational to her. Katz's argument, that the dynamic of the doctor-patient relationship pushes even the most beneficent relation toward paternalistic behavior, is therefore of extreme importance.
Given the psychodynamics of the doctor-patient relationship, it seems that medical ethics must first guarantee autonomy. The patient's liberty and negative freedom must be overtly recognized and respected. Any beneficent components of medical ethics must be added onto, and constrained by, respect for individual autonomy. Physicians should be encouraged to act in a beneficent manner, but they should never expect that in return the patient's liberty will be diminished.
Pellegrino and Thomasma have offered a series of possible models for the doctor-patient relationship.31 Included among these are business, contractual, covenant, preventive, and beneficent models. The authors defend, on the one hand, the beneficent relationship in which trust and the good of the patient, who is in a state of "wounded humanity," are central. The covenant model, on the other hand, explicitly involves respect for patient autonomy and also patient trust.32
The best model seems to me to lie somewhere in between. I believe that autonomy of the patient must be central. The patient must be treated and should expect to be treated without condescension. Issues should be aired openly and alternatives discussed in a rational fashion. Those patients who have difficulty understanding must be accorded the respect of further discussion. The patient should maintain his realm of negative freedom, and the physician should not trespass this barrier.
In addition, the physician must be willing to move beyond the behavior expected of members of the liberal state and act for the good of the patient. The physician should make sure the "patient comes first." The way in which the physician accomplishes this "moving beyond" is not only to respect patient autonomy, but to help the patient maintain autonomy. The physician must deal with the sick patient's wounded humanity by doing everything necessary to restore that humanity.
Consider again Mr. Z. The night Dr. A. drove over to the hospital to discuss his decreasing hematocrit with him, he was greatly concerned. He was young, but his body was failing him and he felt vulnerable. Dr. A.'s reassurances helped him to begin to think clearly about the options before him. He could shake his depression, if not completely, at least enough to think rationally about the treatment plan. This kind of action would not necessarily be expected in the classic liberal state. It requires respect for liberty, not efforts to promote it or restore it. Medical ethics should thus provide a sense of cooperation and "other regardedness" often lacking in classic liberalism. Yet it should not subvert the public morality.
I am not, by any stretch of the imagination, the first to suggest this kind of interpretation of medical ethics. But others who do so go further. Pellegrino and Thomasma, for instance, develop the theory of beneficence in a way that leads to a discussion of virtue. They note that a virtuous physician, like Aristotle's virtuous person, has special knowledge, chooses acts for their own sake, and has a secure and confident
character.33 Physician altruism in this model leads to truly selfless activity on behalf of patients. Aristotlean virtue thus seems the model for the moral action of physicians.
For reasons already stated, I do not condone such reliance on virtue, for fear it may lead physicians to disrespect, in some ways, negative freedom. The physician altruism I posit is simply an other-regardness that goes beyond what is expected of liberal citizens, but in no way trespasses autonomy. If you like, it is a thin theory of altruism that fits well with liberalism. In the following chapters, I will illustrate it further.
For now, the point I want to make is fairly simple. Medical morality or ethics must involve both respect for patient autonomy and altruistic efforts on the part of physicians to maintain patient autonomy. Physicians must be willing to act in an other-regarding manner while carefully considering the constraints of liberalism. Indeed, there should be little conflict between physician altruism and liberal morality. Physician altruism is based on patient autonomy; without asserting any "right" to act on behalf of the patient, it adds the warmth of cooperative relations to the somewhat colder exchanges between citizens of the liberal state. We can say, then, that the ethics of the doctor-patient relationship involve the following principles: (1) rejection of physician paternalism and professional efforts to usurp authority; (2) endorsement of the altruistic "patient comes first" ethic; (3) actualization of patient autonomy through reassurance and careful, mutual negotiation of a treatment plan.
These principles cannot be restricted to the doctor-patient relationship, at least in its narrow meaning as a personal relation between two people. As I have argued in previous chapters, the great mistake of medical ethics and the medical profession was the failure to understand the economic and political repercussions of the structural organization of medical care. The "patient comes first" attitude created a "physician profits most" system that eventually called into question physician altruism. Since I am now advocating physician altruism in the liberal state, that altruism must also be applied within the structure of medical care.
Physician altruism should help nourish a Walzerian health care sphere. The public morality of liberalism garners respect in the sphere of health care, but certain compromises in the particulars of a market economy may be necessary to create the proto-communitarian atmosphere necessary for maintaining patient autonomy. The market
should be taken as a given, not as a foreign interloper in medical care. Where necessary, however, the procedural justice of the market may need to be replaced by just regulatory devices.
The same is true of the law. Legal rulings should be understood as representing the integrity of the law, as renditions of the justice inherent in the public morality of the state (while recognizing that not all laws, in even the most liberal of states, reflect the principles of liberalism). Legal imperatives should not necessarily be rejected as secondary to ethical considerations; rather, they should be viewed as efforts to maintain and respect patient autonomy. Nevertheless, legal mandates must be examined from the vantage point of medical ethics. The health care sphere, for example, may call for different mandates than that of the securities trading sphere.
Physicians should play a role in this scrutiny of market relation and legal imperatives. As patient advocates, and as people who are altruistically committed to patient autonomy, physicians should be willing to question whether the unregulated market is the best organizational device, both for financing and delivering medical care (a distinction that will assume some prominence in subsequent chapters). If the answer is no, then physicians should offer solutions in the form of regulations that support patient autonomy without subverting the market to physician control. Physicians should also scrutinize laws carefully to ensure the integrity they represent is truly appropriate for medical care.
Others disagree that physicians should play this institutional role. Pellegrino and Thomasma would argue that health is an absolute value for physicians and that other goods are beyond the ken of medical ethics.34 Veatch argues that physicians must be committed to individual patients, and this commitment precludes a physician role in policy decisions.35
I reject these positions without hesitation. To create a health care sphere, a sense of medical care imbued with cooperation and community, and thus a set of institutions in which physicians' altruistic behavior can operate without transgressing the public morality of liberalism, physicians must be willing to address policy issues. The same other-regardedness that drives medical ethics in the doctor-patient relationship must be directed toward consideration of health law and economics. Medical ethics in the liberal state must address not only interpersonal relations, but also institutional relations. The communitarianism of medical care must benefit the liberal state at both the human and institutional level.
Returning to the examples I outlined above, Dr. A. is committed as a physician who behaves ethically to go the extra step necessary to maintain Mr. Z.'s autonomy. She must reassure him, yet be willing to share her uncertainty. She must make sure he "comes first" by acting on his behalf, and yet she must recognize that his irrationality is matched by her own.
In the case of Mrs. J., the same rules must hold. I cannot simply stand by and see her autonomy and health diminished by the fact that she cannot pay for her prescription medicine. I must respect the market in most cases and the procedural justice it brings to relations, but I must also be willing to regulate the market to maintain human dignity. I must therefore try to help find solutions to situations like Mrs. J.'s, and in so doing restore a sense of community to health care and indeed to the liberal state. I cannot focus, as an ethical physician, on a narrow definition of doctor and patient. I must be willing to pursue efforts to overcome institutional arrangements that diminish autonomy.
Thus medical ethics in the liberal state involves a number of principles beyond those mentioned above. A complete list would include:
1. rejection of physicians' paternalism and efforts to usurp authority;
2. endorsement of the altruistic "patient comes first" ethic;
3. actualization of patient autonomy through reassurance and careful, mutual negotiation of a treatment plan;
4. careful attention to the institutional setting for the practice of medicine;
5. respect for the public morality of the liberal state and its reliance on individual liberty and market justice;
6. conscientious efforts to mold the health care sphere so that it conforms to the liberal state yet evinces a spirit of cooperation and community that nurtures the "patient comes first" ethic.
Admittedly these principles are quite abstract. To outline my view of the medical ethics as a moral enterprise within liberalism, not as an alternative to liberalism, I would like to review a series of developments in the law and governmental regulation of health care. I will then propose the manner in which a just physician should act with regard to such initiatives. This is not to say that my positions will be a reflection of how physicians do act; my aim is prescriptive, not de-
scriptive. Given the model of professional ethics I outlined above, I seek to stir debate within the profession as we develop a set of ethical norms appropriate to liberal medicine.
Since the theory of medical ethics I envision overtly recognizes principles of liberalism, as well as the institutions of medical care, it centers more on justice than do traditional medical ethics. Nonetheless, I seek to retain the traditional virtues of altruism and selflessness that characterized the art of patient care, or doctoring. Hence I term this characterization of medical ethics, "just doctoring," In the following chapters I hope to specify what just doctoring means.