Resolving Ethical Dilemmas



Resolving Ethical Dilemmas





Clinical-ethical dilemmas can be defined as clinical problems in which all feasible solutions require breaking a moral rule. Whether to continue painful aggressive treatment of an incompetent, gravely ill patient in order to preserve his life or to provide only palliative treatment and allow him to die in order to prevent his suffering is a common example of a clinical-ethical dilemma. Both solutions can be defended on moral grounds but both decisions also break moral rules. The dilemma can be resolved first if one decides whether, when, why, and how it is justified to break a moral rule, usually by appealing to a higher moral duty through a process of rigorous analysis. Second, non-moral clinical facts must be ascertained and clarified, including the patient’s prognosis, outcomes and degrees of suffering with various treatment courses, and the patient’s or surrogate’s preference for aggressive or palliative treatment in this circumstance.

Not all ethical problems encountered in clinical practice rise to the level of dilemmas. Ethical issues can complicate clinical decisions, for example, when clinicians sense that a patient’s valid consent to treatment is not being respected properly, when clinicians feel it is justified to make minor decisions for patients without their knowledge, when clinicians are uncertain what to do when incompetent patients have not made explicit their wishes for life-sustaining treatment, and when patients make poor clinical decisions and clinicians are uncertain whether to respect and follow them. Resolving medical-ethical problems and dilemmas requires gathering and processing correct medical and social facts as well as applying sound ethical reasoning.1 Experienced clinical ethicists frequently cite the maxim: “Good ethics begins with good facts.”

Clinicians and philosophers have offered systematic approaches to resolving medical-ethical problems and dilemmas that require consideration of both moral and clinical issues. These approaches differ in their degree of rigor and practicality. They comprise a spectrum from the purely analytical to the purely practical. The moral philosopher Bernard Gert’s method is the most rigorous method of justifying the morality of an act that violates a moral rule but requires additional information to apply usefully in a clinical context. Principlism offers an accessible and popular guide to ponder ethical issues but provides no means for reconciliation in situations in which the principles conflict (such as the common tension between duties to promote autonomy and practice beneficence). The principle of double effect is analytical but can be applied to only one type of medical-ethical predicament, though admittedly a common and important one. Casuistry is an iterative system of ethical analysis that relies less on principle than on precedent.

The methods for resolving ethical problems offered by ethicists Mark Siegler, Bernard Lo, John Fletcher, and the American College of Physicians are generally less rigorous but more practical. They require physicians to thoughtfully and systematically consider the medical
and social factors most relevant to the decision. Clinical pragmatism relies on fusing a scientific approach to studying problems with an interpersonal process of mediation in settling disputes. Whichever approach a clinician finds most useful and adopts, it should be practiced systematically for the same reason a clinician systematically performs the elements of a physical examination. In this chapter, I present outlines of the more prominent of these approaches for clinicians to consider adopting in their practices. I end with several comments about the limits of clinical ethics expertise and the extent to which expert ethical opinion is objective or is based on a subjective political interpretation of ethical concepts.

The first step in any approach is to recognize that an ethical problem exists. Every clinician can measure her degree of discomfort with a clinical problem. When the discomfort results from trying to decide if a situation is morally (as opposed to medically) right or wrong, an ethical problem may be present. Some scholars have coined the term “moral distress” to refer to a situation in which physicians or nurses intuitively sense an ethical problem by analyzing their feelings of moral discomfort in response to the problem.2 The identification, analysis, and resolution of moral distress has been most thoughtfully studied by scholars in nursing ethics.3 Moral distress can be generated by: (1) clinical situations such as perceiving that a patient is receiving inappropriate life-sustaining treatment or is being treated without having provided adequate informed consent; (2) internal factors, such as when disempowered nurses or house officers feel powerless to change the wrong direction of a patient’s medical care; or (3) external factors such as those generated by an institutional culture that is harmful to patients, lack of administrative support, or compromised care resulting from pressures to reduce costs.4


ETHICAL PROBLEMS ARE COMMON IN NEUROLOGICAL PRACTICE

Neurologists encounter ethical problems frequently in their practice. Perhaps the most common issue arising in outpatient practice is the extent to which a patient’s informed consent conforms to modern concepts of shared decision making and patient-centered medicine, as discussed in chapter 2. The balance of free patient choice and paternalistic physician guidance to make the “right” choice is delicate and requires physicians to possess virtues such as compassion and respect and to have excellent communication skills. The ideal location of the balance point varies among patients: some patients wish to maintain free rein to choose their own treatment; others request and follow their physician’s advice. The wise physician intuitively understands each patient and adjusts her approach accordingly. But how should a wise physician act when a patient makes a clearly bad decision?

Ethical issues of nearly equal frequency arise from a physician’s decision to perform testing while trying to make a challenging diagnosis. Some physicians rely heavily on their experience to reach diagnoses and believe that ordering many tests to exclude rare disorders is wasteful and unnecessary. Other physicians believe it is their professional responsibility to prove the diagnosis beyond reasonable doubt, a belief that may be enhanced consciously or subconsciously by financial considerations (for example, income from self-referral for electrodiagnostic testing), and by the practice of defensive medicine to prevent lawsuits. The ethical question is the extent to which physicians’ duties to conserve and not squander society’s finite resources should impact on clinical decisions about patients under their care, as discussed in chapter 3.

Ethical issues arise commonly in the care of patients who are at the end of life. Advance planning for end-of-life care is essential in patients with ALS and other fatal neuromuscular diseases. The clinician must know and uphold each patient’s choice with regard to a feeding gastrostomy tube, ventilator, and other life-sustaining treatments (chapter 14). Advance care planning for patients with Alzheimer’s disease includes encouraging them to execute advance directives early in their illness that will govern future decisions about feeding tubes and other treatments in order to ensure that their
wishes are followed (chapter 15). Ethical issues in palliative care of dying patients include the debates about the propriety of palliative sedation or physician-assisted suicide (chapter 9). Whether to provide continued intensive treatment for hopelessly, critically ill and dying patients in intensive care units raises the ethical, legal, and societal question of whether physicians are justified in asserting medical futility as grounds for refusing to order further life-sustaining treatment (chapter 10). The vexing decision of parents and neonatologists of to continue or stop life-sustaining treatment of a profoundly brain-damaged infant contains numerous ethical considerations (chapter 13).

The satisfactory resolution of these and other medical-ethical problems requires a systematic approach combining moral analysis and ascertaining the relevant clinical facts. Philosophers and clinicians have recommended procedural approaches to resolving these problems, allowing clinicians to consider the relative merits of both formal and practical analyses. I next offer examples of some of the most useful ones.


FORMAL APPROACHES

Formal approaches to resolving ethical dilemmas use analytical tools devised to dissect and rigorously study the question at hand. They use methods of analytic philosophy to identify and classify the nature of the problem, and they provide a rigorous means to decide whether the violation of a moral rule is justified. Usually, they need to be linked to relevant medical and social facts and a process to settle a dispute that takes into account patient and surrogate preferences. They are a prerequisite for resolving clinical-ethical dilemmas but are insufficient alone.


Gert’s Method

Bernard Gert’s analytical method to justify the violation of a moral rule (presented in chapter 1) is the most formal and rigorous technique to analyze and justify the morality of an act. It complements the more procedural approaches I later consider. Gert poses ten questions that must be sequentially answered for one to justify the violation of a moral rule.5 I will illustrate the value of using Gert’s analysis to examine the morality of providing palliative sedation to a patient dying of ALS who has refused further ventilator treatment, but who may die more quickly with the sedation than without it. Is such an act, which could be construed to violate the moral rule: “Do not kill,” morally acceptable?



  • What moral rules are being violated? The moral rule arguably being violated is: “Do not kill.” Some commentators (including me) claim that a physician’s act to discontinue a ventilator that has been refused by an ALS patient is not killing but allowing her to die because the disease is fatal in the absence of life-sustaining therapy that the patient has a right to refuse.6 But for the purposes of applying Gert’s method to rigorously justify a moral rule violation, we will accept that the act could be construed as a type of killing.


  • What harms are being avoided, prevented, or caused? The harm avoided is unnecessary suffering while dying that can be prevented by timely and appropriate palliative medical treatment.


  • What are the relevant desires and beliefs of the person toward whom the rule is being violated? The patient should be asked if he will consent to palliative sedation. Most patients prefer not to suffer from air hunger or other preventable sources of suffering while dying, and readily agree to or demand proper palliative treatment.


  • Is the relationship between the person violating the rule and the person toward whom the rule is being violated such that the former has a duty to violate moral rules with regard to the latter independent of the latter person’s consent? Physicians should always seek consent for therapy when possible. It is usually possible in patients with ALS because, although they may have some cognitive impairment, it is usually not sufficient to render them incompetent.



  • What goods (including kind, degree, probability, duration, and distribution) are being promoted by the violation? The goods are freedom from pain and suffering. Indeed, the moral rule: “Do not cause pain” is being followed by (arguably) violating the moral rule: “Do not kill.”


  • Is the rule being violated toward a person in order to prevent her from violating a moral rule when the violation would be unjustified or weakly justified? No.


  • Is the rule being violated toward a person because he has violated a moral rule unjustifiably or with weak justification? No.


  • Are there any alternative actions or policies that would be preferable? No. Palliative treatment is customary and, as a matter of excellent end-of-life care, should be required during removal of ventilation in ALS patients and in any other patients capable of suffering.


  • Is the violation being done intentionally or only knowingly? The violation is being done knowingly. The intent is not to kill the patient but to permit the patient to die comfortably. The goal is palliation.


  • Is the situation an emergency such that no person is likely to plan to be in that kind of situation? No, ventilator discontinuation usually is performed after a process of informed consent or refusal that yields a treatment plan to discontinue the ventilator.

Analyzing the violation of the moral rule: “Do not kill” in this way justifies the act of providing palliative sedation during ventilator removal is the ALS patient, even though the act could be construed as violating the moral rule: “Do not kill.”


Double Effect

The principle of double effect is an analytical technique to justify the morality of a single act that produces two morally opposite effects, one beneficial and one harmful, the former intended and the latter foreseen but unintended. The principle was devised by theologians to justify the morality of an act that otherwise could be considered immoral because it caused harm in a predictable way. Over the past two generations medical ethicists have adopted and applied the principle to difficult cases in clinical medicine to analyze the morality of clinical decisions that have double effects. Advocates of the principle have provided five criteria all of which must be present to justify the morality of single acts that produce double effects:



  • The act must not be intrinsically wrong.


  • The intended effect must be the good effect, even though the bad effect may be foreseen.


  • The bad effect must not be a means to the end of creating the good effect.


  • The act is undertaken for a proportionately serious reason.


  • The good resulting from the act must exceed the evil produced by the bad effect.7

Clinical examples of the principle of double effect are common. Consider the case in which a physician prescribes a palliative dose of morphine to relieve a dying patient’s pain and shortness of breath, but the patient dies sooner than he would have without the morphine because of respiratory depression. (The acceleration of death in this setting has been grossly overestimated and, in fact, occurs only rarely in clinical practice.8) The intent of the physician was to relieve the patient’s pain and shortness of breath and the choice of drug and the dosage administered were appropriate for palliative purposes. The acceleration of death was a foreseen but unavoidable and unintended consequence. The physician, therefore, has performed an act with a double effect: one intended and the other foreseen but unintended. Is the prevention or palliation of pain and air hunger morally justifiable despite the simultaneous occurrence of acceleration of the moment of death?

The physician’s act in our example is moral because it satisfies the five conditions for the principle of double effect: (1) giving morphine in the dosage administered to relive suffering is not intrinsically wrong; in fact it is
an accepted element of excellent palliative care; (2) relieving suffering was the desired effect even though a small risk of death was foreseen; (3) death was not the means for providing the desired effect because the morphine relieved suffering independent of accelerating death; (4) prevention of suffering during dying is important and is a clear goal of palliative medicine; and (5) prevention of suffering in a dying patient exceeds the evil of possibly dying slightly sooner.

Once the principle of double effect has established that the act is morally acceptable, the consent of the patient or surrogate also is necessary. The patient or surrogate should be adequately informed that a palliative dosage of morphine is indicated but possibly may accelerate the moment of death. If she has consented to receiving a palliative dosage of morphine with this knowledge and if the criteria for double effect have been satisfied, the act is morally justified.


Principlism

The four well-known “principles of biomedical ethics” advocated by Tom Beauchamp and James Childress were discussed in chapter 1. The Georgetown “principles” of autonomy, nonmaleficence, beneficence, and justice are cited widely in bioethics analysis. Danner Clouser, Bernard Gert, and Charles Culver correctly pointed out their shortcomings as ethical principles9 but they remain useful as easily-recalled and understood concepts for clinicians to sequentially consider in the analysis of clinical-ethical problems. Their lack of rigor and the absence of means to resolve situations in which they conflict limit their usefulness as a moral system as discussed in chapter 1.


Casuistry

Casuistry is a time-honored method of case-by-case ethical analysis with roots in antiquity, common law, and early Christian theology. It was used by Roman Stoics, Chinese Confucians, Jewish Talmudists, Muslim Qur’anic commentators, medieval European scholastics, and most recently and prominently, Roman Catholic Jesuits. Casuistry attempts to resolve moral dilemmas by applying general moral or religious rules embodied in precedent-setting cases to novel situations that seem to elude ethical resolution because they pose conflicting duties. Casuists argue by analogy: they explore the aptness of precedents for settling new questions.

Casuistry relies on developing a consensus on index cases on which everyone can agree. They end their analysis by developing the so-called “rebuttable conclusion”: a penultimate stopping point that might or might not withstand another round of critical scrutiny. Involved parties are expected to review the reasoning that yielded this conclusion and to accept it or reject it as decisive in the new situation. Casuistry was a dominant mode of ethical analysis over centuries of scholarship and is used currently in the development of case law. Casuistry has experienced a revival of popularity in contemporary clinical ethics.10

Casuistic analysis is most prevalent today in judicially written case law. In their interpretation of statutory, administrative, and constitutional law, judges cite and apply relevant legal precedents. Each new ruling adds a new layer to the growing corpus of existing case law. The current judge’s fresh insights and connections to previous decisions further clarifies the meaning of the law and helps to distill the essential concept on which the law was based and extends its reach to novel cases.


PRACTICAL APPROACHES

Clinical ethicists have used their experience analyzing medical-ethical dilemmas in the context of hospital ethics consultations to propose systematic processes for analyzing and resolving these cases. I briefly discuss several of the most useful systems.


Fletcher’s Method

In his monograph, the philosopher and clinical ethicist John Fletcher proposed one of the most popular approaches.11 Fletcher’s approach was selected by the American Academy of Neurology (AAN) Ethics, Law and
Humanities Committee (on which John Fletcher formerly served as a consultant) as the standard tool to systematically analyze each of the cases in the neurology residents’ ethics casebook Ethical Dimensions of Neurologic Practice published by the AAN in 2000.12 This casebook has been rewritten, expanded, and now is titled Practical Ethics in Clinical Neurology. It is co-published by the AAN and Lippincott Williams & Wilkins and is cross-referenced to this book.13 Readers can review the cases and their analyses in this accompanying casebook to inspect the clinical application of this analytic model. Fletcher’s analysis poses the following questions grouped by category, including medical, social, and ethical factors.

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Aug 2, 2016 | Posted by in NEUROLOGY | Comments Off on Resolving Ethical Dilemmas

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