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Defending secular clinical ethics expertise from an Engelhardt-inspired sense of theoretical crisis

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Abstract

The national standards for clinical ethics consultation set forth by the American Society for Bioethics and Humanities (ASBH) endorse an “ethics facilitation” approach, which characterizes the role of the ethicist as one skilled at facilitating consensus within the range of ethically acceptable options. To determine the range of ethically acceptable options, ASBH recommends the standard model of decision-making (informed consent, advance directives, surrogates, best interests), which is grounded in the values of autonomy, beneficence, nonmaleficence, and justice. H. Tristram Engelhardt Jr. has sharply criticized the standard model for presuming contentful moral claims in circumscribing the range of ethically acceptable options, which, he argues, cannot be rationally justified in a pluralistic context. Engelhardt’s solution is a secular clinical ethics based on a contentless principle of permission. The first part of this article lays out Engelhardt’s negative claim, that reason cannot establish contentful moral claims, and his positive claim, that secular clinical ethics ought to be based on a contentless principle of permission. The second part critiques these negative and positive claims. The purpose of this paper is to defend secular clinical ethics expertise—defined as the ability of ethicists to offer justified moral recommendations grounded in consensus positions endorsed by the American Society for Bioethics and Humanities—from the radical critiques of Engelhardt, who argues that no moral or metaphysical claims, and hence no bioethical consensus, can be rationally justified. Engelhardt’s critiques have caused some to worry that secular clinical ethics is in a state of theoretical crisis; this article concludes that Engelhardt’s view is an unstable basis for that worry.

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Notes

  1. The perceptive reader will note that the fundamental topic of this paper (whether moral and metaphysical claims can be justified using reason), has deep intellectual roots that reach back to the origin of Western philosophy and implications that extend well beyond clinical ethics. Even Engelhardt attributes his central argument to Agrippa the Skeptic [3, p. 24]. It is not far-fetched to see those opposed to clinical ethics expertise (like Engelhardt) as falling in line with the ancient sophists, and those who affirm clinical ethics expertise as having greater philosophical affinities with figures such as Socrates, Plato, or Aristotle. The debate over ethics expertise extends well beyond the inception of clinical ethics consultation.

  2. The practice of secular clinical ethics endorsed by ASBH is distinct from other secular approaches, such as common European models that use the method of moral case deliberation, in which the ethics consultant does not offer advice or attempt to justify any moral conclusion [5, p. 24].

  3. As Jeffrey Berger et al. have shown, the standard model provides a defeasible hierarchy, one that can move in the opposite direction (e.g., best interests trumping substituted judgment) in particular circumstances [9, p. 50].

  4. An excellent example of a recent evolution of the standard model of decision-making is offered by Jason Wasserman and Mark Navin in their work on the value of preferences expressed by patients who lack decision-making capacity, which they apply their work to adult and pediatric contexts [14, 15].

  5. To the list of controversial practices in health care, Mark Cherry adds the prescription of Viagra to enhance the sex lives of gay and single men, as well as the use of in vitro fertilization by lesbian and single women to conceive children outside the bounds of traditional marriage [20, p. 2]. The topic of conscientious objection is another issue that has produced heated debate, with some conservative physicians arguing against even the permissibility of the disclosure and referral requirement that allows physicians to step away but not between patient and safe, effective, legal medical services [21].

  6. Engelhardt would apply this logic to all the intractable disputes in bioethics mentioned above (e.g., the permissibility of abortion, organ sales, stem cell research, etc.).

  7. Engelhardt acknowledges that definitions of death are not purely clinical, but inevitably interact with moral and metaphysical commitments [26].

  8. The principle of permission would imply a view in line with Robert Veatch’s case for allowing patients to choose among definitions of death [27].

  9. Griffin Trotter’s work in clinical ethics is also premised on the acceptance of Engelhardt’s negative claim that reason cannot settle disagreement among moral strangers [28].

  10. I have chosen to begin with the critiques of Engelhardt’s positive claim to highlight the practical difficulties that immediately arise by trying to operationalize the principle of permission to clinical practice as opposed to the more theoretical critiques of Engelhardt’s negative claim (e.g., his problematic metaethical view of moral justification).

  11. Determining what treatment options to offer a patient involves determining what treatments have an acceptable balance of benefits and harms for the patient. However, on the principle of permission, the content of judgments regarding benefits and harms can be made only by the patient.

  12. There are several competing views of decision-making capacity, all of which presume different values about how to best determine a patient’s capacity [33, p. 47].

  13. Many physicians or legal standards look to the family as the appropriate decision-makers when it has been determined that a patient lacks decision-making capacity, and this practice requires arguments about the moral authority of family members to serve in this role [34].

  14. This question gives rise to the conscientious objection debate in health care.

  15. One caveat to this claim comes from a paper by Stephen Hanson, in response to the following passage from Engelhardt: “Choosing for [children] does not violate the principle of permission, unless it is clear that their permission would not be given…. But where the wishes of future persons are far from certain, the most one can say with surety is that one should not directly act to affect those persons in ways that are very likely to be against their wishes” [18, p. 260]. Yet, as Hanson observes, “if the parents are sufficiently thorough in their abuse of the infant that they kill it, or leave it with a mental handicap such that it never develops into a full person, then the parents cannot be held accountable in secular society on this ground” [35, p. 197n1].

  16. The standard model of decision-making does not permit these sorts of religiously motivated refusals in pediatrics. ASBH materials reference a policy from the American Academy of Pediatrics that claims religious exemptions in state law to child abuse and neglect for parents who do not seek medical treatment for their children on religious grounds ought to be repealed [37, p. 962]. The standard model categorically rejects the idea that children may be denied pain medication, stating “Palliative care for children is ethically obligatory” [8, p. 78]. In the adult context, ASBH claims a surrogate’s right to refuse life-sustaining treatment for a patient does not include the right to refuse pain medications [13, p. 49].

  17. More on why Engelhardt believes these parental refusals of life-saving medical treatments should be permitted is outlined in the critique of his unanimity requirement below.

  18. Specifically, Hanson and Khushf both cite the following passage by Engelhardt: “By appealing to ethics as a means for peaceably negotiating moral disputes, one discloses as a necessary and sufficient condition (sufficient when combined with the decision to collaborate) for a general secular ethics the requirement to respect the freedom of the participants in a moral controversy … as a basis for common moral authority” [18, p. 69]. However, given that positing the peaceful resolution of conflict as an end would assert a substantive value—the very thing his skeptical view of reason prohibits—Engelhardt quickly walks back this position on the following page, stating that “this view of ethics and bioethics is not grounded in a concern for peaceableness. It is not based on an interest in establishing a peaceable community” [18, p. 70]. Of course, whether Engelhardt’s transcendental argument can succeed without positing peaceful resolution of moral disagreement as a value depends on whether talk of praise and blame does, in fact, presume the minimal grammar of the principle of permission. In his later work, Engelhardt moves away from the transcendental justification and begins describing his approach as, at best, a modus vivendi, “an arrangement with which one is willing to live for at least the time being” [45, p. 18].

  19. Arguments that procedures inherently presume certain value commitments have also been made by others [47, 48].

  20. Rasmussen argues that this requirement for certainty is especially inappropriate within the clinical context, which is shot through with uncertainty. She appeals to an argument by William James that non-certain belief and subsequent action are justified for situations that are live, forced, and momentous—conditions that aptly describe the clinical context [32, p. 392; 49].

  21. It may also be the case that Engelhardt’s view of reason is self-defeating insofar as his view of justification itself is not known with certainty, where certainty is interpreted as self-evident (e.g., simple mathematical truths) or incorrigible (e.g., beliefs about one’s own experience, such as “I am in pain”) [50, p. 116].

  22. A moral judgment counts as “considered” if it is screened for obvious sources of error and bias, held with a high degree of confidence, and stable. To be a “wide” as opposed to a “narrow” reflective equilibrium, this process should also include relevant non-moral background theories (e.g., metaphysical, social, scientific beliefs) [55].

  23. The evaluative principles presented here are common, but not exhaustive, principles drawn from a variety of sources [50, p. 70; 52, p. 352; 56, p. 109; 57, p. 12]. This list builds on that presented in previous work [54].

  24. It is this standard being used to critique Engelhardt when scholars point to content in his “contentless” view.

  25. One may object here that even a topic like confidentiality still engenders significant moral dissensus in medical ethics. While it is true that some questions around confidentiality still result in disagreement, the general notion that confidentiality is an important prima facie principle enjoys wide consensus. Furthermore, certain specific cases of violating confidentiality have developed significant consensus. For example, Robert Veatch and Laura Guidry-Grimes note that the Hippocratic view of confidentiality was invoked in the 1970 when Dr. Robert Browne disclosed to the father of his sixteen-year-old patient that she was on birth control—a disclosure he made because he believed it was in the patient’s best interest for her father to know given his concern about the “moral health” of the adolescent [71, p. 121]. Bioethical consensus on confidentiality no longer holds that it is permissible to violate confidentiality in the name of similar concerns about the moral status of an adolescent’s sexual behavior. Therefore, although there remains significant dissensus over some questions of confidentiality, significant agreement remains about the prima facie weight of the principle and consensus prohibiting some specific violations of patient confidentiality has emerged.

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Acknowledgements

I would like to especially thank Jeffrey Bishop, Griffin Trotter, and Lisa Rasmussen for the many hours they have spent discussing Engelhardt’s work with me. Although I never had the privilege of meeting Engelhardt in person, I have been privileged to learn from scholars who trained under him in the chewing of texts and ideas.

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Brummett, A. Defending secular clinical ethics expertise from an Engelhardt-inspired sense of theoretical crisis. Theor Med Bioeth 43, 47–66 (2022). https://doi.org/10.1007/s11017-022-09566-3

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