Module 3: Resolving Dilemmas
Upon completion of this module, the resident should be able to:
- Identify and differentiate various meanings of the "good" to be achieved in clinico-ethical decision making.
- Define casuistic ways of resolving clinico-ethical problems.
- Utilize a method for systematically analyzing and resolving clinico-ethical problems.
- Evaluate possible ways of resolving clinico-ethical problems from multiple ethical perspectives.
Module: 3 / Clinico-Ethical Problem-Solving and Reasoning
The role of ethics in medicine: In practicing medicine—i.e., in diagnosing, treating, and caring for patients—is clinical reasoning different and separate from ethical reasoning? Are clinical decision making and ethical decision making in medicine different and separable processes? Are ethical problems in medicine different from clinical problems? These are seemingly simple—but, in reality, profound—questions. Nonetheless, tentative responses to them can be formulated by referring back to module 2, specifically, to the argument found there that medicine is an inherently moral or ethical endeavor. In other words, the “ethical” aspects of medicine cannot be neatly separated from the “clinical” aspects: ethics is neither ancillary nor tangential to clinical medicine. One would be hard-pressed to identify some aspect of medicine that is free of ethical significance. The very way in which a physician first approaches and engages her patient has ethical import.
To better understand the significance of ethics for medicine, consider the process of clinical reasoning and judgment. The physician-philosopher Edmund D. Pellegrino argues that this process can be “anatomized” such that the resulting “anatomy of clinical judgment” reveals three key questions:
(1) the diagnostic question of What is wrong with this patient?
(2) the therapeutic question of What can be done for this patient with this diagnosis?
(3) the prudential—that is, an ethical—question of What should be done for this patient?
In answering the first question, the diagnostic question, the physician interprets the patient’s presenting signs and symptoms in light of knowledge derived from the biomedical sciences. Differential diagnosis entails the generation of the most likely competing explanations of the patient’s signs and symptoms and further analysis and, perhaps diagnostic testing, are undertaken with the aim of generating a working diagnosis—an ideally single best explanation of the patient’s complaint. In answering the second question, the therapeutic question, the physician again resorts to the body of scientific and clinical knowledge, which distills individual as well as collective experience with therapeutic interventions targeted at the patient’s diagnosis (or diagnoses). For each possible therapeutic intervention, the physician identifies the known benefits and the known risks of that treatment. In answering the third question, the prudential question, however, the physician can no longer appeal to scientific knowledge or evidence per se. Instead, in answering this final, ultimate question—in deciding what to do for this patient—the physician has no choice but to reason ethically rather than scientifically. The physician must seek to place and understand the recommended healing action in the multilayered contexts of the patient’s life. Thus the final ultimate question—the question that leads patient to physician in the first place—is an ethical question, not a scientific or technical one.
In giving an account of why this rather than that particular course of healing action should be taken, the physician must appeal to ethical reasons—not simply to intuitions or feelings or opinions. Contrary to a widespread misconception, ethics is not mired in subjectivism: one’s views of right and wrong are not like one’s likes or dislikes of food.
Law and ethics: In an era when concerns about liability in the practice of medicine are widespread and, indeed, legitimate, it is understandable that in potentially difficult situations, the first question on physicians’ minds might be “Will I be sued?” rather than “Is this the right, the good, or the just thing to do?” It is the frequency of that first question that accounts, in part, for the practice of what is now known as “defensive” medicine—and the consequent reduction of ethics to the law. In analyzing and attempting to resolve clinico-ethical problems, however, it is critical to put each, law and ethics, in its proper place. For example:
- Law—in the sense of the acts of state legislatures, the U.S. Congress, and law-making bodies at the local level—represents the achievement of a social consensus on some question or issue and not necessarily the soundest thinking from an ethical point of view. Law, in this sense, is the creature of some majority; history is replete with examples of unethical thinking and actions by a majority.
- Law—in the sense of the decisions and reasoning embodied in opinions issued by courts at various levels—often reflects processes of problem solving and judgment that are identical to those deployed in ethical problem solving and reasoning. Indeed, decisions rendered by courts of appeal and by the U.S. Supreme Court have been a significant force in shaping the evolution of bioethics in this country.
- Although this does not amount to a hard and fast rule, one way of understanding the difference is this: law deals in the empirical realm of the “is,” while ethics deals in the normative realm of the “should.”
The first method: In their now classic text, Clinical Ethics, Jonsen, Siegler, and Winslade advocate the following “method,” which is a way of organizing and considering the information and data relevant to a decision.
- medical indications: clarify the diagnosis and prognosis and evaluate the effectiveness of the therapeutic options
- patient preferences: determine, first, if the patient has the capacity to make health care decisions and if not, who will make these decisions; then ask if the patient has expressed relevant wishes regarding his/her care and treatment and whether this was done in an informed and voluntary way and with understanding
- quality of life: ask how the patient experiences quality of life and would experience any changes brought about by the illness and by therapy; ask how caregivers view the patient’s quality of life
- contextual features: identify and clarify the various dimensions of the context in which care for the patient is provided, including the patient’s relationships with others, the immediate health care setting, the organizational and institutional setting, the broader legal and societal context and then ask what factors relative to each dimension may influence treatment decisions or be affected by the decision
The chief advantage of the first method is its simplicity: in using this method, information and considerations relevant to a case are “sorted” into one of four categories.
The second method: This method of working up the ethical dimensions of a clinical situation is especially useful in analyzing options for treatment in complex circumstances. It is a step-by-step approach; the results of each successive step are cumulative in the sense that each successive step builds upon the preceding one(s).
1. Clarify the facts in the case:
- Salient aspects of the biography of the patient and the patient’s values and preferences
- The identity of significant others, e.g., family and friends
- The “clinical facts,” i.e., the diagnosis(es), the prognosis (with and without therapy), the therapeutic options, the goals of care
- The chronology of events and any time constraints relative to the decision to be made
- The medical setting (e.g., intensive care unit, emergency room, nursing home)
2. Identify the ethical issues in the case:
- Does the issue involve a conflict between patient preferences or values and clinician recommendations or values?
- Is the difficulty in the case actually a communications (rather than ethical) issue?
3. Frame the ethical issues in the case:
- Analyze and clarify various dimensions of the possible “goods” to be achieved in this case:
- The patient’s biomedical good, i.e., in light of the diagnosis and the prognosis, what is the goal of care and what therapeutic interventions are best suited to achieving that goal
- The patient’s broader goods and interests, i.e., the patient’s preferences and values with respect to the relationship between his or health and care, on the one hand, and, on the other hand, his or her spiritual commitments, familial and affective relationships, hopes and beliefs about the future, etc. Focus on these dimensions of the patient’s good requires demonstrable respect for the patient (or surrogate) as an autonomous, self-determining individual, e.g., through the process of valid decision making and informed consent or refusal.
- The goods and interests of relevant others, i.e., of the patient’s family or friends, of the health care professional’s involved in the patient’s care, of the institutional setting, the community, and ultimately, of the society as a whole.
- Identify the appropriate decision maker in the case, the legally as well as morally valid surrogate
4. Situate or contextualize the ethical issues in the case:
- Is this case analogous to others for which a broad ethical consensus has been achieved? Are there any precedents? If so, what are these precedents? How closely does this particular case parallel other paradigmatic cases?
- Are there any relevant precedents or constraints of a legal nature?
5. Evaluate the possible, alternative courses of action by asking:
- Which alternative would be consistent with any relevant, non-negotiable moral obligations or duties that are incumbent upon physicians?
- Which alternative would be a defensible application of the principle of beneficence, non-maleficence, respect for autonomy, and/or justice?
- Which alternative would help one develop and maintain the clinical virtues, i.e., valuable traits of character (e.g., be a person of courage or compassion?)
- Which alternative best respects and protects the moral rights of individuals?
- Which alternative is most responsive to the individualized needs of each of the persons involved, persons with unique narratives and plans?
- Which alternative would lead to the best overall consequences?
- Which alternative reflects an awareness of differences in power, i.e., differences based on differences in gender, as well as age, ethnicity, socioeconomic status, etc.
6. Answer the prudential question, What should be done for this patient?, i.e., make a decision and take action
7. Evaluate the decision, prospectively and retrospectively
- What are the merits of this decision?
- What are the drawbacks of this decision?
- Retrospectively, did the decision achieve the intended outcomes?
It is obvious that the second method is more complex than the first—but its complexity mirrors the often nuanced considerations involved in systematic, sound clinico-ethical problem solving and decision making. This method also prescribes an orderly sequence of steps to be taken and followed in resolving a problem and making a decision. A few other observations about this method:
- Its first step reflects the conviction that the facts are the critical point of departure for such a process of problem solving and decision making. It also reflects the degree to which this method is influenced by casuistry. The fourth step of situating or contextualizing the ethical issues in a particular case is also casuist in inspiration. What is casuistry? Casuistry (from the Latin, casus, for case) is a mode of reasoning that begins and ends with cases, rather than principles or theories. The casuist first clarifies the facts and details of the case at hand and then seeks to find, either within his own experience or through some form of reference, a similar, paradigmatic case—a case in which a resolution has already been achieved. The challenge for the casuist is to determine whether the ethical resolution of the paradigmatic case is, indeed, applicable to the case at hand.
- On the face of it, the method—especially in the fifth step—is theoretically eclectic, i.e., it does not privilege a particular ethical theory. Instead, with the fifth step, the method urges a consideration of alternatives from multiple perspectives, in part, because such “sweep” and diversity is more faithful to the complexities of the moral life in medicine. Taking up the alternatives from multiple perspectives is a way of ensuring “due diligence,” ethically speaking. No one theoretical perspective can do justice to the ethical richness of medical practice.
- The method culminates in the sixth step, in answering the prudential question of what should be done for this patient?—that is, in the very same question in which the process of clinical reasoning and judgment, always and ever, culminates. Thus ethics is not an afterthought vis-Ã -vis clinical reasoning and judgment; it is inextricably bound up with the day-to-day decisions that physicians must make in caring for their patients and practicing their profession.
You are treating and caring for a young male patient, who is 17 years of age and has been diagnosed with testicular cancer. In your best clinical judgment, he needs surgery. He is a Jehovah’s Witness and he tells you that he will refuse a blood transfusion should he need it—which is a distinct possibility during or after surgery.
- What is the fundamental ethical issue in this case?
- How is the “biomedical good” of this patient to be understood and defined?
- How are the broader goods and interests of this patient to be understood?
- Who is the appropriate decision maker in this case, in light of the fact that the patient has not yet reached the age of majority?
- How could this particular case be situated or contextualized (see the fourth step)?
- What are the origins of the Jehovah’s Witness prohibition on blood transfusions (this will obviously require some research)?
- What if you were to learn that this young man’s parents are pressuring him to refuse a blood transfusion?
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