Bernard Gert, a leading moral philosopher, has rigorously defined morality: it is “an informal public system applying to all rational persons, governing behavior that affects others, and includes what are commonly known as the moral rules, ideals and virtues, and has the lessening of evil or harm as its goal.”² Ethics was defined by a neuroscientist as “a group of moral principles or set of values … governing the behavior of an individual or profession.”³ Some authors use the terms “morality” and “ethics” synonymously; others make subtle distinctions between the two. Still others prefer to use the word “ethics” for all clinical contexts because they consider the word “morality” to have religious connotations because it was used originally in religious traditions. Because the similarities in the meanings of both terms far exceed their differences for the purposes of clinical medicine, they are sufficiently synonymous for me to use them interchangeably in this book.

The study of ethics can be divided into normative and non-normative divisions. Normative ethics refers to the substance and content of ethical living, including ethical theories, concepts, and rules, and their application in solving specific ethical problems. All discussions of ethical concepts and practices in this book and, indeed, almost all writings on clinical ethics concern claims of normative ethics.

By contrast, non-normative ethics does not concern itself with the content of an ethical life but rather with a description of the process of ethical deliberation. Descriptive ethics, the largest branch of non-normative ethics, defines the anthropological, sociological, psychological, and historical study of why and how people reason and make moral judgments as they do. Another branch, metaethics, provides a philosophical analysis of ethical discourse, including what is meant by moral judgments. Metaethics attempts to define precisely such terms as “right,” “good,” “wrong,” and “bad.”⁴

Each of the world’s major religions is bound by a sacred body of scriptural writings on morality that comprise an essential component of its teachings and beliefs. The biblical Ten Commandments of Judaism and Christianity, and the volumes of associated commentary, exemplify the sophisticated moral systems of organized religions. In general, these systems are based on theological and religious beliefs in which moral laws represent the direct words of God revealed and communicated to humankind. Morality in these terms is not merely the product of human effort. That said, some religious thinkers have employed tenets of secular, rational ethics to flesh out the claims of their faiths. For example, “natural law,” as taught by Thomas Aquinas, recommended for all persons a morality similar to that of his religion. But knowledge of this morality did not require revelation from God and could be acquired and understood by all rational persons who put their minds to it.

By contrast, secular ethics is solely the product of human rational discourse. Secular ethics assumes that humankind can devise a complete and universal system of morality without necessarily invoking a foundation of theological beliefs.⁵ The clinical ethics discussed in this book are secular. Later in this chapter I briefly summarize the morality systems of several major religions. In subsequent chapters, I discuss the religious dimensions of specific problems in clinical ethics.

Theoretical ethics is to applied ethics as physics is to engineering. Theoretical ethics consists of the systems of morality and their derivative
abstract concepts. The field of applied ethics attempts to solve specific clinical-ethical problems through an analytical process using abstract concepts. Medical ethics, clinical ethics, and bioethics all are examples of applied ethics.

Clinical ethics has been defined in a leading textbook as “the identification, analysis and resolution of moral problems that arise in the care of a particular patient.”⁶ I define clinical ethics somewhat differently as “the identification of morally correct actions and the resolution of ethical dilemmas in medical decision- making through the application of moral concepts and rules to medical situations.”⁷ Clinical ethics comprises medical and nursing ethics as well as ethics of other professionals in clinical healing practices.

Bioethics, having a broader scope than clinical ethics, embraces the intersection of biology with ethics; therefore, bioethics encompasses all clinical ethics but not vice versa. The major field of bioethical inquiry outside the strict purview of clinical ethics is the ethics of research. Research specifically involving human subjects also may be considered within the realm of clinical ethics, however. Because they enroll their patients in research studies and supervise them during such protocols, physicians retain ethical responsibilities toward these patients.

The founders of the utilitarian (or consequentialist) school of morality were David Hume (1711-1776), Jeremy Bentham (1748-1832), and most notably John Stuart Mill (1806-1873). Utilitarian philosophy determines the morality of an act solely by an analysis of its consequences. The greater the extent to which an act leads to nonmoral goods, such as happiness, pleasure, or health, the more it is likely to be morally right. The tendency of an act to yield such nonmoral goods is its “utility.” Conversely, the greater the tendency of an act not to produce nonmoral goods, the greater is its “disutility.” Mill wrote: “Actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness.”¹⁰

Commonly, a given act will have complex effects, producing both harms and benefits for one person, or combinations of benefits for one person and harms for another. In this situation, the degree of moral rightness of an act is directly proportional to its net utility, defined as the difference between its overall utility and disutility. The principle of utility is not a sophisticated philosophical concept. It is a common, intuitive process that judges, legislators, policymakers, and other responsible public officials in our society use to reach complex and difficult decisions that simultaneously help and hurt others.

The utilitarian school can be divided into those who believe that the principle of utility should be applied directly to individual acts on a case-by-case basis and those who believe that the principle should be applied to classes of acts indirectly through rules derived from the principle. The former are known as act-utilitarians and the latter as rule-utilitarians. Act-utilitarians examine the net utility resulting from a single act and thereby determine the morality of the act. In clinical practice, this process involves a comparison between the
benefits accrued and the burdens borne from the performance of a given act. Rule-utilitarians apply a general rule derived from the principle of utility, such as “do not kill,” and render a moral judgment independent of the details of a particular act.

The founder of the most important modern school of deontology was Immanuel Kant (1724-1804). The term deontology is derived from the Greek deon, meaning “duty” or “that which is binding.” Unlike utilitarians, who determine the morality of an act solely on the basis of its consequences, deontologists determine the morality of an act on the basis of the intent of an act, the sense of duty that motivates an act, the intention to do one’s duty, and the other factors that determine why and how a person acts. Kantian deontologists are concerned more with the moral rightness of intentions that drive acts than with the results of acts. Kant criticized utilitarianism because it failed to account for our complete set of moral intuitions. He pointed out that if an act performed with the intent of helping another person that ordinarily would be expected to help the person ends up—through no fault of the actor—producing a net harm to the other person, it should not be considered immoral, as it would be from a purely utilitarian perspective. Kant argued that the actor’s intention to do his duty should outweigh the bad consequences and thereby make it a moral act.

Kant’s test for the moral rightness of an act was his “categorical imperative”: “I ought never to act except in such a way that I can also will that my maxim should become a universal law.”¹¹ This imperative means that in everyday living, persons should always act in ways that they can rationally and rightly expect others to act. Consider “telling the truth,” a duty universally expected of physicians. Kant believed truth-telling to be universally rational and right because the contrary default mode, deception, is so obviously irrational. It would be impossible to know how to act rationally if deception were the default mode of behavior. The universal rightness of truth-telling follows from its rationality: because one can legitimately expect the truth from others (in order to have the best chance at acting rationally), one must always tell the truth to others to give them the same chance at rationality that one claims for oneself. Kant believed in the universality of morality and in its scope as a public system. The rightness of ethical action is independent of the observer and should be universally accepted by all impartial persons.

Deontologists can be divided into those who apply the categorical imperative directly to acts and those who apply it indirectly through rules to classes of acts. Act-deontologists examine the intentions and sense of duty behind a given act to assess its moral rightness, whereas rule-deontologists develop a set of moral rules based on intrinsic features of acts that they subsequently apply to classes of cases.

Most contemporary philosophers are rooted in both utilitarianism and deontology because neither approach alone can fully account for the richness and completeness of our body of moral intuitions.¹² They recognize that we can determine the moral correctness of an act only by understanding its intentions and other intrinsic characteristics as well as its consequences. Contemporary moral theories differ on the extent to which they emphasize the intentions or consequences of an act in assessing its morality and their systems of moral justification. Interestingly, a comparison of the lists of moral rules devised by rule-utilitarians and rule-deontologists reveals a remarkable similarity. It is the derivation of the rules and their justification processes that differ more than the content of the rules themselves.

Bernard Gert is a leading contemporary moral philosopher with roots both in rule-deontology and in rule-utilitarianism. In his Morality: Its Nature and Justification, (revised edition, 2005), a work in evolution and refinement for four decades, Gert has formulated a complete public system of morality composed of moral rules, moral attitudes, and moral ideals that provides a rigorous process to analyze and justify the morality of actions. Gert explains that morality has two features as a public system: “(1) everyone who is subject to
moral judgment must know what kind of behavior morality prohibits, requires, discourages, encourages, and allows, and (2) it is not irrational for any of them to use morality as a guide for their own conduct.”¹³

Ten moral rules form the backbone of Gert’s account of our moral system. Gert formulated these rules to summarize the essential universal guidelines for ethical behavior. All impartial, rational persons would publicly advocate that everyone obey the ten moral rules at all times, unless there exists adequate justification for breaking them, because obeying them protects a person and those for whom the person cares from suffering unnecessary evil.

Gert’s moral rules are delineated in two groups that rank their importance. The first group of five usually has the highest priority. When these rules are violated, serious evils such as death, pain, disability, and loss of freedom, opportunity, or pleasure are inflicted directly on people. The first set of rules is:

The second group of rules generally has a lower priority. If they are violated, the probability that someone will suffer an evil increases, although this effect is neither as direct nor as certain as that resulting from a violation of a moral rule from the first set. As was true for the first set, all rational, impartial persons should advocate universal and public adherence to these rules, unless there is adequate justification for not doing so, because obeying the rules prevents evils from occurring to persons and those for whom they care. The second five rules are:

Nonetheless, all rational persons would not want these moral rules to be followed mindlessly at all times without exception. Gert devoted considerable attention to analyzing the justifiable violations of the rules. There exist justifications for violating the moral rules that all rational persons should advocate publicly. Consider, for example, the second moral rule “Do not cause pain.” Clinicians are morally justified in producing a temporary and small degree of pain as they diagnose and treat a patient’s serious disease, because they have the patient’s consent and because the pain they inflict is a prerequisite for initiating effective treatment that can prevent the patient from suffering much more serious evils, such as death, disability, or more severe pain. Gert’s system of morality provides a rigorous analytical process to test violations of moral rules for their adequate justification. Acts violating moral rules that fail the justification test are immoral.

Gert has defined the “moral attitude” as the attitude that a person should take when considering whether or not to violate a moral rule. A person taking this attitude makes it clear that no one should violate a moral rule unless “a fully informed, rational person can publicly allow violating it.” That is, a person should be willing for everyone to know that this kind of violation is acceptable.¹⁶ No impartial, rational person would be willing to allow any kind of violation publicly unless he believed that less harm would result if everyone knew that this violation was allowed than would result if everyone knew that this kind of violation was not allowed. Willingness to adopt the moral attitude, with the accompanying risk that one might be mistaken, is the strongest indication that the rule violation has been made rationally, impartially, and justifiably. Gert has identified 10 questions whose answers determine what constitutes the morally relevant features that are necessary to justify violating a moral rule.

When considering the harms being avoided, prevented, or caused and the benefits being promoted, one must consider not only the kind of benefit or harm involved but also its seriousness, duration, and probability. If more than one person is affected, one must consider the number of affected people as well as the distribution of harms and benefits. If two violations are the same in all their morally relevant features, they count as the same kind of violation. Anyone who claims to be acting or judging as an impartial, rational person in allowing one violation publicly must hold that the other also be publicly allowed. This follows from the account of impartiality. However, this does not mean that two people, both impartial and rational, who agree that two actions count as the same kind of violation, must always agree on whether or not to advocate that this kind of violation be publicly allowed. Both parties may differ in their estimate of the consequences of allowing this kind of violation publicly, or they may rank the benefits and harms involved differently.

In our case of the physician causing the patient mild, temporary pain, violating the moral rule not to cause pain is justified because: (1) with testing and treatment, the physician can prevent the patient from suffering the evils of death, disability, and severe pain; (2) the patient wants to be treated and has given consent; and (3) the evils of temporary pain are very much less than those probably avoided. Physicians should be willing to defend this position publicly, and, in fact, they do so commonly, in their practices and in formal clinical practice guidelines. Gert has explained why a theoretically coherent and practically trustworthy public ethics requires a combination of utilitarian and deontological features. The deontologist is correct in that a moral system requires rules, and the utilitarian is correct in that a system of morality must have a purpose. The pure deontologist errs in not understanding that all rules have exceptions and therefore require interpretation in light of the goal that the rules achieve. The pure utilitarian errs in not understanding that a public system, available to all rational persons, must have rules to provide guidance. A complete public system of morality must include moral rules for guidance and moral attitudes that interpret and offer the means to justify violations of the rules, it must give them moral direction, and it must explain how and why the rules should be obeyed.¹⁸ Gert recently defended his system against the criticism that it was not useful to resolve moral dilemmas in medicine.¹⁹

The concept of respect for personal autonomy or self-rule is derived from the moral rules not to deprive of freedom and not to disable. Respect for autonomy implies a respect for persons and for the decisions they make for themselves unconstrained by others.²³ Some authors prefer to talk of “autonomous choices” rather than “autonomous persons,” emphasizing that it is only the freedom to choose and the breadth of available choices that permit a person to have self-rule. Other authors emphasize that it is the requirement to obtain the permission of the individual for any act affecting the person that is paramount in a concept of autonomy.²⁴

Beauchamp and Childress have outlined the criteria that make an action autonomous: the action is made intentionally, with understanding and without influences that determine it.²⁵ In the common clinical situation in which patients are asked to give their consent for treatment, for example, the patient cannot make a truly autonomous treatment choice unless he has the capacity to decide, has received adequate information necessary to make his decision, and has not been coerced into this decision.²⁶

Respect for patients’ autonomy resonates with American tradition. In American law, respect for personal autonomy is embodied in the doctrine of “self-determination.” This concept of law arises from the American Constitution and its amendments, which provide inalienable liberty rights for all citizens based on innate human dignity, freedom, and respect for persons. The concept of personal autonomy in the clinical context was epitomized by future U.S. Supreme Court Justice Benjamin Cardozo in a landmark decision in a medical malpractice case in which a surgeon neglected to seek a patient’s consent before an elective operation. Justice Cardozo famously wrote, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”²⁷

Daniel Brock explained why autonomy is such an important objective in any system of morality. Autonomy, or self-determination, encompasses a person’s interest to make decisions for himself, according to his own concept of what constitutes the good life, and to be free to act on those decisions. Respecting self-determination is important because it permits persons to live in accordance with their concept of the good life within the constraints of justice and with the responsibility to respect the rights of the self-determination of others. When we respect our right of self-determination, we take full responsibility for our lives and our actions, and for respecting the possibility of the same by all others. The major component of human dignity is found in the capacity of persons to direct their lives by self-determination and to respect this capacity in all others.²⁸

One of the defining trends of Western medical ethics in the early 21st century is a growing emphasis on respect for patients’ autonomy, with a concomitant lessening influence of medical paternalism.²⁹ Today, more patients are asserting their right to make their own medical decisions and are not accepting their doctor’s recommendation unquestionably. The trend to grant primacy to the patient’s treatment preferences and values over those of the physician has been called “patient-centered medicine.”³⁰ In the United States, the growing emphasis on respect for personal autonomy parallels the growing authority of the civil rights and human rights movements.³¹ Concomitantly, the reduced professional authority of physicians parallels the diminished influence and respect for all authority figures in contemporary society.

Strengthening of respect for autonomy and weakening of paternalism has costs, one of which is that the traditional medical value of promoting the patients’ best and most beneficial interests has been put on the defensive.³² Further, growth of respect for autonomy may diminish the physician’s role as medical advisor to the patient’s detriment. Making autonomy absolute is undesirable because autonomy is only one of many competing goods in the total sphere of morality.³³ If autonomy alone were paramount, society would disintegrate as individuals pursued their own personally valid goals and ignored the rights of others. Complete and unbridled autonomy would signal the end of professional beneficence because there would be no way of justifying the special powers that professionals possess, powers that they may use to provide sound counsel and sometimes must use to prevent autonomous persons from making terrible mistakes.³⁴

Childress has argued that respect for autonomy is a prima facie principle of morality (see my previous disclaimer of “principle”), but one that can be overridden by four conditions: (1) proportionality, that is, when other more binding moral factors take precedence; (2) effectiveness, that is, when there is a high likelihood that another moral consideration would take precedence; (3) last resort, that is, when compromising respect for autonomy is necessary to protect the more important moral factor; and (4) least infringement, that is, when compromising respect for autonomy is the least intrusive or restrictive condition consistent with upholding the competing moral factor.³⁵ This method of hierarchical analysis is similar to but less systematic than the process embodied in Bernard Gert’s account in which it is necessary to rigorously justify violations of moral rules by appealing to an understanding of their impact and purpose.