Abstract
This paper argues that substantive ethical rules serve a critical ethical function, even in those cases where we should deviate from those rules. Assuming that the rules are valid provides decision-makers with the context essential to reaching a well-justified decision. Recognizing this helps to reconcile two attractive but incompatible positions regarding the evaluation of healthcare ethics consultants. The first position is that ethical rules can validly be used to evaluate the quality of consultants’ advice, ensuring conformity to standards promoted by a significant portion of medical ethicists. The second position—the message of ethical particularism—is that we should not evaluate consultants according to strict rules, since good ethical advice may deviate from even the most carefully wrought moral rules. Steering a path between these extremes, I argue that we should evaluate the quality of consultations by examining whether consultants have communicated the relevant ethical rules to participants as ethical presumptions. In communicating presumptions, a consultant provides an indispensable ingredient to ethical decision-making, while leaving open the possibility that the ethical course of action involves violating the very ethical rules that one should presume.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
I use “substantive ethical rule” in the sense endorsed by Beauchamp and Childress (2009, pp. 13–14) to describe moral norms that are more “specific in content and more restricted in scope than principles,” concerning such matters as truth-telling, confidentiality, informed consent, et al.
The “boundary view” is implicit in parts of the ASBH’s description of their preferred model of ethics consultation, wherein the consultant “helps the relevant decision-makers fashion a plan… that is within the bounds of legal and ethical standards.” Similarly, the report criticizes the “pure consensus” approach, because it might foster agreements that “fall outside the boundaries of widely accepted ethical and legal norms and standards.” As my criticism of the boundary view makes plain, I think these boundaries should typically be interpreted as something other than strict dividing lines between the ethical and the unethical (ASBH 2011, p. 7).
Ullmann-Margalit’s topic is presumptions in general, rather than ethical presumptions. The biggest departure in my analysis from Ullmann-Margalit is the third condition. Ullmann-Margalit holds that a presumption is “…called for in a situation which, when described generically, presents a recurrent pattern inherent to which is a decision problem such that those required to act can be anticipated to be stuck with an inconclusive or an aborted deliberation process and where arbitrary or haphazard decisions are otherwise likely to be made” (1983, p. 156). Ullmann-Margalit seems to me to overstate the importance of inconclusiveness, arbitrariness, and haphazardness in justifying a presumption. For example, left to their own devices, a jury might have no difficulty coming to verdicts that were neither arbitrary nor haphazard—but no matter how swift and well-reasoned their verdicts, it would be extraordinarily difficult for them to deliberate well insofar as the standards they employed in their deliberations were not coordinated with those of other juries, and this is essential to deliberating well with respect to the application of the law.
Presumptions can be justified independently of the truth of the prescribed assumptions, since assumptions can be justified independently of their truth. For example, I can be justified in assuming that the solar system is geocentric just for the sake of argument, or to more easily create a fairly accurate star map, or to reconstruct the views of a medieval philosopher, etc. These varieties of justification are open to us because an assumption does not commit one to actually holding that its content is true; assumption does not entail belief, if it did, it could not be justified unless we had some reason to believe that the assumption were true.
References
American Academy of Pediatrics Committee on Bioethics. (2001). Ethical issues with genetic testing in pediatrics. Pediatrics, 107(6), 1451–1455.
American Society for Bioethics and Humanities (ASBH) Core Competencies Task Force. (2011). Core competencies for healthcare ethics consultation (2nd ed.). Glenview, IL: American Society for Bioethics and Humanities.
Aune, B. (1979). Kant’s theory of morals. Princeton: Princeton University Press.
Beauchamp, T., & Childress, J. (2009). Principles of biomedical ethics (6th ed.). New York: Oxford University Press.
Berger, J. T., DeRenzo, E. G., & Schwartz, J. (2008). Surrogate decision making: Reconciling ethical theory and clinical practice. Annals of Internal Medicine, 149(1), 48–53.
Dubler, N., Webber, P., Swiderski, D., & The Faculty and the National Working Group for the Clinical Ethics Credentialing Project. (2009). Charting the future: Credentialing, privileging, quality, and evaluation in clinical ethics consultation. Hastings Center Report, 39(6), 23–33.
Engelhardt, H. T, Jr. (2011). Core competencies for health care ethics consultants: In search of professional status in a post-modern world. HEC Forum, 23(3), 129–145.
Fox, E., & Stocking, C. (1993). Ethics consultants’ recommendations for life-prolonging treatment of patients in a persistent vegetative state. JAMA, 270(21), 2578–2582.
Herman, B. (1993). Moral deliberation and the derivation of duties. In B. Herman (Ed.), The practice of moral judgment (pp. 132–158). Cambridge, MA: Harvard University Press.
Lampert, R., Hayes, D. L., Annas, G. J., Farley, M. A., Goldstein, N. E., Hamilton, R. M., et al. (2010). HRS expert consensus statement on the management of cardiovascular implantable electronic devices (CIEDs) in patients nearing end of life or requesting withdrawal of therapy. Heart Rhythm, 7(7), 1008–1026.
Simpson, C. (2012). Mapping our practice? Some conceptual ‘‘bumps’’ for us to consider. HEC Forum, 24(3), 219–226.
Ullman-Margalit, E. (1983). On presumption. The Journal of Philosophy, 80(3), 143–163.
Acknowledgments
The author is grateful for the exceptionally helpful feedback on earlier versions of this paper provided by Marion Danis, Paul Johnson, Alan Wertheimer, and the two anonymous referees from this journal.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Chan, B. Towards Substantive Standardization: Ethical Rules as Ethical Presumptions. HEC Forum 28, 175–185 (2016). https://doi.org/10.1007/s10730-015-9290-8
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10730-015-9290-8