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Whose harm? Which metaphysic?

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Abstract

Douglas Diekema has argued that it is not the best interest standard, but the harm principle that serves as the moral basis for ethicists, clinicians, and the courts to trigger state intervention to limit parental authority in the clinic. Diekema claims the harm principle is especially effective in justifying state intervention in cases of religiously motivated medical neglect in pediatrics involving Jehovah’s Witnesses and Christian Scientists. I argue that Diekema has not articulated a harm principle that is capable of justifying state intervention in these cases. Where disagreements over appropriate care are tethered to metaphysical disagreements (as they are for Jehovah’s Witnesses and Christian Scientists), it is moral-metaphysical standards, rather than merely moral standards, that are needed to provide substantive guidance. I provide a discussion of Diekema’s harm principle to the broader end of highlighting an inconsistency between the theory and practice of secular bioethics when overriding religiously based medical decisions. In a secular state, ethicists, clinicians, and the courts are purportedly neutral with respect to moral-metaphysical positions, especially regarding those claims considered to be religious. However, the practice of overriding religiously based parental requests requires doffing the mantle of neutrality. In the search for a meaningful standard by which to override religiously based parental requests in pediatrics, bioethicists cannot avoid some minimal metaphysical commitments. To resolve this inconsistency, bioethicists must either begin permitting religiously based requests, even at the cost of children’s lives, or admit that at least some moral-metaphysical disputes can be rationally adjudicated.

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Notes

  1. Two arguments are commonly given in support of the presumption of parental authority. The first argument is that parents are generally in the best position to know the current and future interests of their child. The second argument is that parents have to live with the consequences of decisions made for their children [1, pp. 181–182; 2, p. 264].

  2. Although there are many formulations of the best interest standard—Erica Salter identifies and analyzes six [1]—the canonical formulation is often attributed to Allen Buchanan and Dan Brock, who define best interest as choosing the option that offers the greatest net benefit to the child [5].

  3. Diekema is clear that it is only the state that can use force to override parental decisions, but because clinicians and ethicists are the ones who trigger these requests for state intervention, it is important that they all appeal to the same moral standards [10, p. 15].

  4. Several ethicists have advocated for the harm principle as the basis for determining when state intervention is appropriate [11,12,13]. I focus on Diekema’s arguments because they have contributed significantly to the current consensus among ethicists that serious harm is the appropriate moral concept for triggering state intervention [14, p. 452; 15, p. 111]. I also target Diekema’s work specifically because I find his argument—that it is the harm principle, and not the best interest standard, that is used when constraining parental authority in pediatric cases—convincing. Additionally, Diekema’s explicit claims about the effectiveness of the harm principle in cases of Jehovah’s Witnesses and Christian Scientists situate the discussion squarely within the metaphysically tethered cases I have in mind.

  5. A thetan can be defined in Scientology as a spirit that gets “stuck” on or near a human body, causing problems (often psychological) for the host. A winti is a spirit in an Afro-Surinamese religion that takes possession of human persons, switches off their consciousness, and reveals things or causes/heals illness.

  6. For an excellent overview of the right, the good, and moral worth, see Mark Timmons [17].

  7. Jonathan Moreno refers to this view as the doctrine of liberal neutrality [18, p. 57].

  8. Rosalind McDougall et al. have rightly noted an ambiguity in the notion of challenging, or “overriding,” parental authority [14, p. 451]: does challenging parental authority mean questioning parents’ decisions and attempting to persuade them to change their minds, or does it mean involving state authorities? In Diekema’s usage, both of these senses are invoked in separate contexts—he argues that the best interest standard should be used to challenge parents verbally, whereas the harm principle should be used to challenge parents through involvement of state authorities [8].

  9. Salter concurs, writing that an alternative to the best interest standard that at least does away with the word “best” would be an improvement [1, p. 196].

  10. Diekema also notes that the state may intervene in cases where a parent’s decisions place the population or others at likely risk of harm (e.g., forced vaccinations).

  11. To help make this point, Diekema cites John Lantos, who writes, “The interests of children are neither absolute nor unambiguous. They are always intertwined with the interests of others, and often must be weighed against those other interests” [21, p. 57].

  12. Diekema critiques the best interest standard for offering “little meaningful guidance” in actual clinical cases [7, p. 246]. He cites a paper by Isabel Traugott and Ann Alpers, which outlines cases involving adolescents who wish to refuse life-prolonging medical treatments with serious adverse effects and long-term administration [24]. The paper includes the case of sixteen-year-old Billy Best, who was diagnosed with stage II Hodgkin’s disease; Billy was undergoing combination chemotherapy with an 80% chance of cure when he decided to discontinue treatment. Although Diekema cites cases like Billy’s as particularly difficult for a best interest standard, it is not clear how the harm principle fares much better. Whether one believes Billy’s refusal should be honored depends upon whether a shorter life without chemo is judged to be less harmful than a longer life with it—a judgment that will, again, be “inherently a question of values” [7, p. 246]. Cases like Billy’s are difficult because they pit one reasonable value judgment against another, not because they are evaluated in terms of one’s best interests as opposed to the harm principle. Billy decided to treat his cancer with alternative medicine and natural therapies. He lives today and has given talks to the Boston University School of Medicine and Harvard Medical School about a patient’s right to refuse treatment; see http://www.billybest.net/index.html.

  13. Birchley has also critiqued the harm principle for using pejorative language that insinuates parents are responsible for substandard care. He writes, “it seems arguable that judges see evaluative overtones in a conclusion that a parent is harming their child, which they do not (explicitly) read into best interests … the label of substandard care appears insensitive to pluralism [15, p. 113].

  14. What exactly follows from disagreement itself is anything but straightforward [28].

  15. My argument in the second part of this paper significantly expands on the work of Birchley and Bester, as I attempt to give an account of why so much disagreement over the application of the harm principle arises in metaphysically tethered disputes. I take this not as a reason for rejecting the harm principle, but as a path for improving it.

  16. These authors give plausible examples but do not provide an account of how such plausible disagreements arise in the first place. The shortcoming is akin to Euthyphro’s listing examples of justice to Socrates without giving an underlying account of the form of justice. It is this underlying account that I hope to provide via application of Salter’s schema further in the paper.

  17. I refer to Salter’s schema as a sketch only because it is unlikely to be exhaustive of how harm can be conceived. For example, I would add an additional category of harm that Salter mentions throughout her discussion (e.g., [1, p. 185]) but does not explicitly include in her list—namely, financial harm. Determining financial harm involves considering the impact of a treatment decision upon a family’s financial security.

  18. Diekema also critiques the best interest standard for its difficulty of application in cases where parents want to refuse treatments involving less serious threats to a child’s health, such as cleft lip and palate repair [7, p. 246]. I find his use of these examples puzzling, since the best interest standard offers rather straightforward advice in such cases. If parents are committed to doing what is in the best interest of their child, they would opt for the cleft lip surgery. Rather, these cases seem to pose more of a worry to the harm principle, as they force one to face the tricky issue of exactly how much harm is needed to trigger the harm threshold to warrant state intervention.

  19. For all his criticism of the best interest standard, Diekema claims it is easiest to apply in situations where a child’s life is in jeopardy and death can be avoided with safe and effective treatments—cases exemplified by the refusal of blood transfusions for children of Jehovah’s Witnesses and the refusal of insulin for diabetic children of Christian Scientists [7, p. 246]. It is true that such refusals are often overridden on the basis of the best interest standard, but the fact that they have been overruled does not show that they should be overruled. Diekema offers no precise argument as to why the best interest standard justifies this result.

  20. Diekema is certainly not alone in offering an appeal to harm as a way to adjudicate metaphysically charged disagreements in bioethics. For example, in the debate over conscientious objection, several authors have offered some version of an argument for constraining clinician conscience in order to avoid “harm” to third parties [30,31,32,33]. But whether honoring a conscience claim causes harm to others is precisely what is up for debate in these metaphysically tethered discussions. Those who object to the practices of abortion, physician-assisted death, hormone treatment for transsexual adolescents, and the like do so because they see such activity as wrong or harmful and do not want to be involved. The use of ametaphysical appeals to harm to resolve bioethical disagreements is a trend that extends well beyond the question of how to establish harm thresholds for state intervention in pediatric care.

  21. In Islamic bioethics, the “principle of necessity” may be invoked to get around such obstacles to medical treatment [35].

  22. Pediatric cases involving Christian Scientists and Jehovah’s Witnesses may be considered extreme, but they are not uncommon in Western society. In the United States, Jehovah’s Witnesses make up approximately 1.2 million people, or a little less than 1% of the total population [36]. Christian Science reports millions of members in seventy countries worldwide [6, p. 354].

  23. Other churches whose teachings may require refusal, limitation, or a preference for prayer over medical treatment for children include: Church of the First Born, Christian Catholic Church, Faith Assembly, Followers of Christ, End Time Ministries, Believers’ Fellowship, Faith Temple Doctoral Church of Christ, Christ Miracle Healing Center, The Source, No-Name Fellowship, The Fellowship, Faith Tabernacle, First Century Gospel, Pentecostal Church, and Evangelistic Healers [6, p. 352].

  24. With minor linguistic modifications (as the above hypothetical case focuses on requests rather than refusals), one can include here Diekema’s remaining requirements. While Diekema applies his principle to refusals, my hypothetical case here applies it to requests. However, I think the result is the same. The harm principle is intended to constrain harmful decisions, whether they come in the form of requests or refusals.

  25. Some relatively recent exceptions have provided examples of Jehovah’s Witness adolescents being permitted to refuse blood transfusions, even when death results. Consider the cases of Dennis Lindberg [37] or Josh McAuley [38]. My thesis does not take a position on whether these adolescents should have been permitted to refuse these transfusions, I argue only that where it has been determined that a minor does not have decision-making capacity, a moral-metaphysical conception of harm is needed to protect the child from metaphysically tethered claims of harm.

  26. Consider the case of state intervention where seventeen police officers were sent to the home of a Hmong family to transport an adolescent girl to the hospital for forced chemotherapy despite the religious objections of her parents [24, p. 923].

  27. This is in reference to a 2003 case in which an evangelist, Ray Hemphill, killed an eight-year-old boy after holding his knee on the boy’s chest during an exorcism [41, p. x].

  28. This is in reference to herpes outbreaks in 2004 and 2012 in New York City as a result of circumcision by mohels, people who perform the Jewish right of circumcision, some of whom were using their mouths to suck the blood from infants’ penises after circumcision. New York City officials estimate the procedure is performed on about thirty-six hundred babies in their city each year [41, p. xi].

  29. Metaphysical or religious claims are about one’s worldview—about what exists and how to live. This definition intentionally includes beliefs by atheists or naturalists. In the literature around how to treat religiously motivated medical requests, Robert Orr and Leigh Genesen adopt a more inclusive definition of religion [43] in response to Julian Savulescu’s critique that their earlier iteration amounts to “religious prejudice and special pleading which is offensive to atheists and treats them as second-class citizens” [44, p. 382]. The inclusion of atheism/naturalism in the category of religious/metaphysical belief is an important move that recognizes metaphysical claims to come in positive and negative forms and involve any claim about the ultimate nature of reality—whether it be naturalistic or supernatural.

  30. Although this paper is focused on the harm principle, there are other moral principles that have been proposed for pediatric ethics that could also benefit from metaphysical elaboration. For example, Joel Feinberg has argued for state intervention based on a child’s right to an open future [45]. However, what constitutes the kind of futures worth keeping open to a child is a metaphysically loaded question. In 2009, a seventeen-year-old girl was admitted to a hospital in northeastern Pennsylvania with severe anemia. Both she and her parents refused a blood transfusion based on their Jehovah’s Witness beliefs. The doctor sought a court order to allow the transfusion, which saved her life. However, the girl returned to the hospital four years later, now married, and addressed a group of medical students about the mistake she believed the doctor at the hospital had made. Recounting this scene, Paul Offit writes, “Intelligent, well-spoken, and attractive, with long brown hair and a disarmingly calm demeanor, she stood in front of a group of stunned students and explained how eternal paradise could no longer be hers. ‘I would rather have died pure,’ she said, ‘than to live impure.’ So moving was her speech that several medical students said that, if confronted with a similar situation, they wouldn’t give a blood transfusion” [41, p. x]. Would Feinberg’s open future standard have helped the doctors in this case? It seems not, where the question of what futures are worth keeping open hinges upon metaphysical beliefs usually absent from such pediatric standards.

    The open future standard has also been critiqued by Joseph Millum, who has argued that if protecting a child’s right to an open future is to be understood as acting as to keep a child’s options maximally open, then it leads to absurd results. This is because there are an “incredible number” of such options, and acting so as to keep them all maximally open would require parents and the state to exhaust their respective resources [46, p. 530]. Millum writes,

    To take one example, consider all the actions that are protected by the right to freedom of political speech: talking with other citizens, broadcasting one’s views on television, publishing a newspaper, and so forth. If children needed to be able to exercise their right to freedom of political speech whenever, as adults, they wanted to, then parents or the state would have to ensure that they reached the age of majority with the means to do all these actions. But this would require each to be given a vast amount of resources. If parents were the duty-bearers, they would then lack any discretion about how they spent their time and money. If the obligation fell on the state, its commitments would have a similar effect on the citizens that constitute the tax base. [46, p. 530]

  31. These pressures have also resulted in an unsteady relationship between moral theory and bioethics. Bioethics has generally passed from a period of embracing high moral theory, to being anti-theory, to the middle-level theory of principlism so influential in contemporary practice [54]. Where high moral theory has overemphasized the power of identifying vaulting moral principles from which solutions to actual moral dilemmas can be deduced, and anti-theory has overemphasized the ability of intuition and triangulation, middle-level theory has come forward as an uneasy compromise that permits some, but not too much, moral theory in bioethics.

  32. Intellectual insight, for Engelhardt, includes such services as analyzing key concepts, assessing crucial arguments, displaying the geography of possible solutions to a problem, and clarifying the range of possible ways that the rightness or wrongness of a particular intervention may be regarded [55, p. 370].

  33. This approach, sometimes referred to as proceduralism, is driven by the belief, articulated by Engelhardt, that morality is available at two levels. Morality can be done between moral friends who share substantive ethical commitments or between moral strangers who need to find a way forward despite their fundamental differences [34, p. 9]. Proceduralism in clinical ethics reflects the belief that, in our postmodern community of moral strangers, ethical reasoning is left with a proceduralistic basis for resolving moral disagreements.

  34. Additionally, Engelhardt refers to the appearance of this argument in Georg Hegel’s work [57, p. 138]. The argument also goes by the name of Münchhausen Trilemma, coined by the German philosopher Hans Albert [61]. This name is based on the story of Baron Munchausen, who pulled himself and the horse on which he was riding out of a mire by his own hair.

  35. The reason it has proven so difficult for Diekema (and anyone else) to articulate a principle to guide decision-making is because the moral pluralism to which Engelhardt points gives rise to a dilemma that Lisa Rasmussen has described as facing the field of clinical ethics. Clinical ethics can either fail to provide moral standards, or it can provide moral standards that will be criticized as “arbitrary or deeply contested” [64].

  36. Importantly, I take this thesis to apply to any moral standard or standards. For example, I would argue that the principlism of Tom Beauchamp and James Childress [65] also fails to offer substantive guidance in metaphysically tethered disputes for the same reasons that trouble the harm principle. If individuals have radically different metaphysical views on the way the world is, then talks of beneficence, autonomy, and justice will all need some metaphysical scaffolding to serve as substantive standards that resist being co-opted and applied by every party in the dispute. For example, both Jehovah’s Witnesses and the state think they are promoting beneficence with their view of blood transfusion. A moral-metaphysical account of beneficence is required, one that includes some claims at the worldview level—for example, whether blood transfusions are or are not connected to eternal salvation.

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Acknowledgements

I would like to thank Jeffrey Bishop, Erica Salter, Stephanie Cargill, and Harold Braswell for their guidance in the preparation of this manuscript, as well as the reviewers and editorial staff at Theoretical Medicine and Bioethics for their help refining and clarifying my arguments.

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Brummett, A. Whose harm? Which metaphysic?. Theor Med Bioeth 40, 43–61 (2019). https://doi.org/10.1007/s11017-019-09480-1

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