Assisted death legislation has been one of the most controversial issues in Canada

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Assisted death legislation has been one of the most controversial issues in Canada. Familiarize yourself with this issue by reading the material posted in the Week 10 folder. 

In Chapter 4 of your textbook, Professional Ethics, read the following two articles:

The Nature and Limits of Professional Autonomy and Professional Responsibility

- Patient and Physician Autonomy: Conflicting Rights and Obligations in the Physician-Patient Relationship, Edmund D. Pellegrino

-Why Medical Professionals Have No Moral Claim to Conscientious Objection Accommodation in Liberal Democracies, Udo Schuklenk and Ricardo Smalling

What approach does Pellegrino take in his exploration of the moral conflicts that exist between patients and physicians regarding autonomy? What approach do Schuklenk and Smalling take in their exploration of the moral conflicts that exist between patients and physicians regarding autonomy? In liberal democracies where all individuals have both rights and responsibilities, explain what actions could be taken when patient/health professional rights and professional obligations regarding assisted death are in conflict?

 

Chapter 4

?Patient and Physician Autonomy: Conflicting Rights and Obligations in the Physician-Patient Relationship Edmund D. Pellegrino For centuries, physician beneficence went unchallenged as the first principle of medical ethics. To be sure, some physicians had, at times, violated this principle. But no creditable ethical opposition was mounted until a quarter of a century ago when patient autonomy was asserted as a prima facie moral principle of equal or greater weight than beneficence.' Progressively since then, patient autonomy has become the dominant principle shaping physician—patient relationships. Three serious moral conflicts have emerged as a result: first, beneficence and autonomy have been polarized against each other when they should be complementary; second, the physician's moral claim to autonomy has received little attention; and third, the "autonomy" of medical ethics, itself, has come under a serious threat. This essay will examine each of these three consequences resulting from the rise of patient autonomy. It shall do so from the point of view that the Source From Journal of Contemporary Health Law & Policy 10, (1994) 1,47-67. Reprinted with permission. II LE 111111 166 4 Professional Ethics physician—patient relationship is a moral equation with rights and obligations on both sides and that it must be balanced so that physicians and patients act beneficently toward each other while respecting each other's autonomy. Effecting this balance is a morally mandatory and exacting exercise. The compass points that might guide this balancing are to be found in a reflection on the concepts of autonomy and beneficence, the way the content of these abstract notions is provided by the clinical encounter, and the way conflicts may be resolved in particular clinical situations. Out of this reflection, five conclusions will emerge: (1) in concept, autonomy and beneficence are complementary and not contradictory; (2) in theory and in practice, autonomy is a positive as well as a negative principle; (3) the actual content of the concepts of beneficence and autonomy is defined in specific actions and decisions in the light of which conflicts are best understood and resolved; (4) the physician's autonomy as a person and a professional must be factored into the equation; and (5) medical ethics, as an enterprise, must maintain a certain "autonomy" in the face of political and socio-economic pressures. I. The Concept of Autonomy A. Autonomy in General Autonomy is one of those widely applauded concepts which, on closer inspection, turns out to be difficult to define with precision.2This is not the place to review the range of construals of the term. Rather, I will limit myself to that construal which centers on the etymology of the word itself, which means "self-rule." What is common to most definitions is the notion that an autonomous person is one who, in his thoughts, words, and actions, is able to follow those norms he chooses as his own without external constraints or coercion by others.3 The history of the concept is complex, and its roots are political as well as moral. Politically, autonomy came into prominence during the Enlightenment as an assertion of the individual's right to be free from tyrannous government—not of law per se, but of unjust law.4Morally, autonomy encompasses the right of persons to freedom of conscience and to respect as agents capable of making their own judgments in accord with universal moral principles,' or in accord with freely arrived at decisions.6 Autonomy gets its status as a moral right of humans from the fact that human beings have the capacity to make rational judgments about their own lives, choices, and interests. Self-governance deserves respect because it is the way human beings actualize their powers of choice, and choice is a distinctly human activity. To obstruct the capacity for autonomy is to assault an essential part of a personb humanity because the choices we make are so much an expression of our membership in the human community, of who we are or what we want to be as individual members of that community. Human beings are owed respect for their autonomy because they have an inherent dignity. They do not have dignity because they are autonomous. Human beings who lack or have lost the capacity for autonomous actions are nonetheless humans who retain their inherent dignity. Respect for persons comprises more than respect for autonomy. Autonomy has taken on a distinctive negative connotation. Arising, as it did, as a moral claim against invasion of human rights by tyrannous government, it has come to mean a right of self-determination against those who would usurp that right. In medical ethics, it is conceived largely as a moral and legal defense against physician paternalism and against those who would impose their values—social, moral, or otherwise—on others. But autonomy is also a positive concept. It implies an obligation to foster the human capacity for self-determination, to enhance it, and to remove the obstacles to its full operation. This is especially important in clinical medical ethics where pathophysiological, emotional, and social realities complicate the actualization of patient autonomy. If taken as a strictly negative concept of non-interference, autonomy can be selfdefeating for patients and self-serving for physicians. This positive aspect of autonomy will become clearer as I fill in the content of the concept as it operates in the clinical situation. B. Patient Autonomy and Physician Beneficence Twenty-five years ago, the political and moral notion of autonomy was appropriated as one of the prima facie principles of medical ethics.' There were good reasons for the emergence of patient autonomy at that time. The rights of patients to refuse unwanted treatment had been neglected for entirely too long. In the mid-sixties, these rights could no longer be denied as participatory democracy, better public education, and the civil rights movements became realities. All authority claims came under suspicion. The abuses of professional and bureaucratic power were widely publicized and no longer tolerable. Moreover, the unprecedented powers of medicine made the choice of medical treatments a far more significant matter than it had ever been in the past. The principle of patient autonomy was seen as the patient's protection against usurpation of his right to participate in decisions that affected his life. Pellegrino: Patient and Physician Autonomy This amounted to a denial of the long tradition of medical paternalism (or parentalism), which considered the duty of physicians to decide what was best because the patient lacked medical knowledge and might lose hope if he knew the whole truth about his options or prognosis. Since paternalists acted in the name of beneficence, beneficence was equated with paternalism and thereby came to be interpreted as a counter-principle to autonomy. Morally valid and invalid forms of beneficence and autonomy were not distinguished from each other. The dilemmas of medical decision-making soon were reduced to weighing the principles of autonomy and beneficence against each other.8 Medical paternalism and parentalism, however, are not to be equated with beneficence, conceptually or in practice. Paternalism does not account for the patient's preferences or values that are part and parcel of her good or best interests.9Paternalism makes the medical good of the patient the only good and subverts other goods to that good. Paternalism violates the patient's autonomy in the name of the patient's best interests while ignoring or overriding some of the most vital of those interests. This cannot be a beneficent act because the patient's own choices are so much an expression of his or her own life story or personhood. To violate or ignore the patient's choices is, by definition, a maleficent act, an injury to the patient's humanity. Only when the patient's human capacity to act autonomously is impaired (i.e., when the patient is incompetent) may we resort to paternalism as a beneficent act to override objections to treatment.10 This is the negative aspect of autonomy. Important as it is, it is a distortion of the idea of autonomy to equate it with total independence from the physician or others in making treatment decisions. The cultural bias against dependence or even the semblance of dependence is strong in American life. However, total independence is unrealistic in any walk of life. Human beings live in community and personal association, especially when they are patients. Patients especially need the input of others if their own choices are to be genuine ones. Physicians are needed to provide information and to discuss this information with patients to enable and empower them to use their autonomy wisely. Patients must compare their values with those of others in the context of some community of belief which they accept in whole or in part. Patients cannot identify with their current choices without reference to some structure of values which they formed in the past and which they reaffirm or reject at the moment of choice. This is part of knowing ourselves, and we know ourselves largely in relation to others. As Dworkin points out, autonomy implies a "capacity to reflect upon one's motivational structure and make changes in that structure."n Without associating with others and drawing on their preferences and values, we lack the opportunity to alter or reaffirm our values because we do not know what alternatives are available and why they might be preferable. To move from the abstract realm of concept to actual decisions, autonomy needs content, and this comes from reflection not only on our own past values but on the values of others at the moment of choice. It is the physician's obligation to enhance, empower, and enrich the patient's capacity to be autonomous. An autonomous choice requires that we fill in, to the extent possible, the action or choice that maximizes realization of the patient's values. Thus, autonomy has a positive as well as a negative aspect. To become a reality, patient autonomy requires cooperation and assistance from the physician. In short, it requires the physician's beneficent attention to make the patient's autonomy an authentic, as well as an independent, reality. C. Physician Autonomy In all the current discussions about the moral status of patient autonomy, the autonomy of the physician is often neglected. This philosophy has serious defects. The physician—patient relationship is one of mutual obligation—like any truly ethical relationship. The physician as a human being has the same claim to respect for his or her capacity to make personal choices, to follow his or her conscience about what is good medicine and what is morally acceptable as a person. Personal and professional ethics are not fully separable from each other. Therefore, the patient's moral right of autonomy must be balanced with respect for the physician's autonomy. Autonomy cannot be a unilateral moral right for either patients or physicians. Physician autonomy may be considered under three headings: (1) autonomy as a person, which gives moral status to the physician's personal moral values and conscience; (2) autonomy as a physician, which gives moral status to the physician's knowledge and obligation to use it wisely and well; and (3) autonomy as a member of a profession, of a moral community with collective obligations to patients and society. I have written elsewheren of the moral obligations and the autonomy of medicine as a moral community, and will confine myself here only to the first two construals of the physician's autonomy as an individual. The autonomy of the physician as a person has its roots in the same ground as the autonomy of any other person (i.e., the physician's capacity as a person for rational judgment and expression of preference with I I 11111 Mid 4 Professional Ethics respect to values and choices). The physician, therefore, cannot be expected to lay aside or ignore his deeper personal beliefs, values, or religious commitments. To be sure, patient autonomy requires that the physician not impose his values in his decisions for the patient. But patient autonomy cannot require the physician to sacrifice his personal moral integrity even for what the patient may believe to be a morally good purpose. Respect for the physician's autonomy also derives from the fact that, under normal circumstances, the physician must write the orders that are carried out by others. The physician cannot avoid the fact that she is the focal point through which harm and benefit of a clinical decision will flow in a majority of cases. The physician therefore is a de facto moral accomplice in what happens to her patient. She cannot place responsibility on others for morally indefensible decisions or for cooperation in decisions that violate her conscience. This inescapable fact of the physician—patient relationship places unavoidable obligation on the physician to avoid action she deems harmful to her patient, even if that action is "required" by state regulation, policy, or law." The physician's autonomy as a physician is also grounded in the possession of expert knowledge needed by sick people and society. The power, itself, conferred de facto by the possession of such knowledge, demands that the physician be free to use it according to her best judgment.'4If the physician is to fulfill the moral requirement to make her knowledge available to those who need it, she must be allowed sufficient discretionary latitude to apply that knowledge as rationally, efficiently, and safely as possible. This is essential if physicians are to fulfill their part of the covenant with society and with individual patients. Physicians enter this covenant from the first day in medical school, when they accept the privileges and the obligations that go with the acquisition of medical knowledge and skill.15 Clearly, this third sense of physician autonomy can never be absolute. If the physician is incompetent, acts in his own self-interest, or acts paternalistically in the sense I defined earlier, he misuses his expertise and violates his covenant with both the patient and society. That covenant is based on trust in the doctor's Oath which commits him to use his knowledge primarily in the service of the sick. The physician's autonomy as a physician is also limited when she mistakes medical expertise and authority for expertise in questions of values. The physician has no standing as an expert in human values and no authority to set the goals or priorities of public policy relative to the allocation or distribution of health care resources. To be sure, the physician's knowledge provides essential factual data on which rational social policy should be based. But the actual choices of values are not the prerogative of physicians or any other "experts"—politicians, economists, or even ethicists. Social value questions are a matter of concern for the whole of society In this respect, the expert is like any other member of society with no authority over the values of other individual members of that society or over the society as a whole. The arguments of experts may have more cogency but no more authority than those of others. II. Autonomy: Its Content in the Clinical Context Autonomy in general, and physician and patient autonomy in particular, might conceivably be defined in the abstract in some general way congenial to a large number of people. However, when we begin to give it content in the context of illness, the problems with absolutism and abstraction become evident, as do the implications of autonomy as a solely negative moral right. First of all, no two persons experience illness the same way. No two persons have the same way of expressing their capacity for autonomous choice. Very few patients demand only "the facts." Some will seek a wide variety of opinions before deciding on their own; some will not. Some patients will prefer to exercise their autonomy by giving it up to a surrogate (i.e., someone they trust to make the decision for them, or perhaps even the physician). The majority will want to express their own way of being autonomous by asking not only for facts but also for the doctor's opinion and the opinions of family and friends. Thus, the content of the idea of autonomy, when it is actualized, will vary with the patient's prior values and cultural, personal, and social relationships. These, in turn, condition a patient's response to illness. Sickness forces a confrontation with the self and with the need to adapt to this illness, here and now. Sickness is a test of our values. For each of us, our response to sickness is unique, and thus the way we express our autonomy is also unique.'6Patients will vary in the degree of dependence or independence they desire depending on their relationship with the physician, on their relationship to their society or community, and on the degree of trust they impute to others. Second, no matter what degree and kind of autonomy a patient chooses, the very fact of illness physiologically or psychologically compromises the actual expression of autonomy to some degree. The sick person is dependent on the physician's knowledge and Pellegrino: Patient and Physician Autonomy help; otherwise she would not need or seek medical help. In addition, in varying degrees, she is in pain, anxious, fearful, and vulnerable. Brain function may be temporarily or permanently compromised by fever, shock, medication, age, or dementia. To restore autonomy, physicians must first attend to reversing these physiological and psychological impediments to the optimal exercise of autonomy. In such cases, medical treatment is essential to restore autonomy. This may require temporarily downplaying or overriding the patient's autonomy until normal sensorial states are attained and then enhancing and empowering it as the capacity for self-determination returns. During this transition, beneficence (i.e., acting in the patient's best interest) modulates the physician's move from "weak" paternalism to enhancement of the patient's full autonomy. Third, no matter what degree of autonomy a patient may want or in what way he wants to express it, the patient is vulnerable to deception in the information he receives. The patient is dependent on the physician's disclosure of diagnosis, prognosis, treatment options, side effects, effectiveness, outcomes, etc. Which facts the physician chooses, which she emphasizes, and which she represses are often subtly or frankly conditioned by her judgment of what she thinks is in the patient's best interests. As any clinician knows, she can get almost any decision she wants from most patients. Therefore, even the most conscientious physician must exert great care to avoid manipulating the patient's choices, even for good reasons. The fact that physicians can so easily influence the patient's choice makes the full operation of patient autonomy problematic. For that very reason, it is morally incumbent on the physician to protect patient autonomy as scrupulously as possible and to try to help the patient realize its positive content. This cannot mean, as some erroneously argue, that autonomy in a sick person is a fiction, that to try to enhance it is a sham, and that we should return to the Hippocratic tradition of benign authoritarianism. Such a reversal would be an intolerable suppression of the patient's human right as a rational being to make uncoerced choices. Physicians and others, therefore, have an obligation not to take advantage of the patient's vulnerability. Informed consent is an empty notion or a charade if the information on which it is based is biased in favor of the physician's preferences. None of this means that physicians cannot advise or persuade patients to do what they think is right. Not to do so is a species of moral abandonment. Patients are entitled to know what physicians think is "best," all things considered. Although the extremes of this spectrum are not difficult to identify, no one can draw precise lines between advice, persuasion, manipulation, and coercion. But the difficulty of drawing a line does not justify a presumption in favor of paternalism. Rather, it increases the physician's obligation in beneficence to protect autonomy by the most scrupulous selfexamination of his own motives in obtaining consent. Much, therefore, still depends on the physician's character and sensitivity and her possession of the virtue of benevolence. The physician's character may turn out to be the last safeguard of the patient's autonomy and well-being. But, ultimately, the physician and patient must decide together what is to be done. Only in this way can patient autonomy become a cooperative and beneficent enterprise, rather than an adversarial one. All of this applies with special force to surrogate decision-making and to advance directives, which become operative when a competent patient loses the capacity to make his own decisions. Here, the patient's wishes are represented by others or by a written document. The surrogate's wishes have the moral status we usually attribute to a competent patient and should be respected as such. However, family and friends can be in a financial or emotional conflict of interest with the welfare of an incompetent patient. They may even wish, consciously or subconsciously, to relieve themselves of the emotional and physical burdens of caring for a chronically ill person. Their representations of what the patient's autonomous decision would have been were he competent are open to serious question. When "autonomy" is expressed in a living will or other advance directive, an assessment must be made of whether the decision executed in the past, when a person was competent, represents what the patient would want now, when the patient is no longer competent. Is this person, now in a persistent vegetative state, the same person who originally made out that living will? Is autonomy, in its full meaning, so absolute that it binds us to decisions the benefits and the import of which the patient could not possibly have anticipated and which, in the actual context of a particular decision, may not be in his present interests?