Tollefsen and Curlin: Conscience and the Way of Medicine

Stephen Kershnar         June 28, 2021 at 8:55 AM

DUDE, WHAT HAPPENED TO MY RIGHTS?

C & T ignore people’s rights.

(1) In a free market medical model, every right of the parties to a medical transaction is respected.
(2) If every right of the parties to a transaction is respected, then no one is wronged.
(3) Hence, in a free-market medical model no one is wrong. [(1), (2)]
(4) If no one is wronged, then there is no wrong act (ignore consequential override).
(5) Hence, in a free-market medical model there is no wrong act. [((3), (4)]

Consider Robert Nozick’s barber example. A barber who cuts the hair of people who want their hair cut, but do not need it cut, acts permissibly because he does not infringe anyone’s right. This is true even if the barber were to violate the Way of the Barber.

Perhaps C & T view the Way of Medicine as a moral boundary on the practice as medicine and think that the free-market model should set the legal boundary. It is hard to see, though, what is the moral-wrong-maker in the case of a free market medical transaction. Here is the idea.

(a) If one person acts wrongly, then he wrongs someone.
(b) If one person wrongs a second, then he fails to satisfy a duty he owes to a second.
(c) A duty is a right (that is, claim).

If (a) through (c) are true, then a person who respects others’ rights, does not act wrongly.

Perhaps C & T think that we should be interested in maximizing the good rather than focusing on deontological duties. The problem is that this duty in some cases – whether possible or actual – justifies ignoring informed consent, killing terminally ill patients with a negative future, and sabotaging birth control. I doubt they support this.

Stephen Kershnar         June 28, 2021 at 8:55 AM

FREEDOM FOR ME BUT NOT FOR THEE

“The physician who refuses to care for patients with HIV because of antipathy toward homosexuals, or for patients of another race because of racial prejudice, or for criminals because of revulsion at their crimes violates the constitutive professional obligation to seek the health of patients precisely because they are sick, without regard to their other characteristics.” (C&T, p. 571)

In terms of rights and conscience, one physician who refuses to treat gays with AIDS, rape-murderers, and illegal aliens is similar to a second physician who refuses to perform abortion, take part in physician-assisted suicide, and counsel married couples on contraception. Assume these physicians believe their refusals are the all-things-considered right thing to do. Let us call them the ‘refuseniks’.

There is no right-infringement because the physician owns his body and his labor. If a physician can waive his right in return for a medical license, then the waiver would apply to both sets of activities.

There is no difference in conscience because each physicians acts according to his best judgment about how he ought to act. They might even do so to the same degree.

As a result, we end with the following argument.

(1) The practice of medicine should be restricted by, and only by, justice and conscience.
(2) If (1), then the legal rights and privileges of the two refuseniks should be the same.
(3) Hence, the legal rights and privileges of the two refuseniks should be the same.

Hence, C&T’s above statement is implausible.

Stephen Kershnar         June 28, 2021 at 8:57 AM

THE GREAT PRETENDER

When considering whether the essence of justification justifies something (for example, Way of Medicine), we need to know if it is a basic justifier or a non-basic justifier (for example, a mere means to an end). It is a justification-pretender.

(1) If the essence of medicine is a basic justifier, then it is backward- or forward-looking.
(2) The essence of medicine is not a basic backward-looking justifier.
(3) The essence of medicine is not a basic forward-looking justifier.
(4) Hence, the essence of medicine is not a basic justifier.

Backward-Looking

(a) If the essence of medicine is a backward-looking basic-justifier, then, by itself, it justifies acts or policies.
(b) The essence of medicine is not a basic justifier.

For (b), consider that the essences of acting, engineering, farming, law, massaging, plumbing, teaching, etc. are not basic justifiers. Medicine is similar to them.
Note that the essence of medicine is distinct from a non-moral basic justifier (for example, autonomy or interest) or a moral basic justifier (for example, desert or rights). In any case, if one of them were a basic justifier, the essence of medicine would be a means to protect or promote it.

Forward-Looking

(a) The essence of medicine is at best a heuristic guide to maximizing (or satisficing) the good.
(b) If (1), then it is not a basic justifier.

For (a), consider that in some possible cases, acting in ways consistent with the essence of medicine does not maximize the good.

A proponent might claim that rule-consequentialism justifier justifies the Way of Medicine. This is correct only if rule-consequentialism is true. It is not. Consider the standard objections, for example, irrationality.

Stephen Kershnar         June 28, 2021 at 8:59 AM

LIGHTEN UP, FRANCIS

“By contrast, the Way of Medicine calls on the physician, as a member of the profession, to personally deepen and specify a commitment the physician already has made: attending to those who are sick so as to preserve and restore their health – to raise that commitment to the level appropriate to a vocation-defining profession.”

The essence of a physician’s practice is not preserving and restoring health.
(1) Not Necessary. Consider cosmetic surgery, psychiatrists who determine whether a person is competent to stand trial for a capital crime, a physician who seeks and accomplishes a lessening of the patient’s pain with no gain in her health, and a physician who counsels a fertile couple about birth control or puts an IUD in a woman. According to ordinary English, our intuitions, and the law, they are practicing medicine.

(2) Not Sufficient. Consider an army drill sergeant who seeks to restore a recruit’s health through a plan of exercise, nutrition, and positive psychology. He is not practicing medicine.

Replies

Bob Kelly          July 5, 2021 at 7:23 PM

Hi Steve,
Curious what you think of the following replies.

On the examples in (1) (not necessary):
--Cosmetic surgery has that label, I presume, precisely to distinguish it from *medical* surgery. Consider: "What's the medical procedure, John?" "Oh no, it's not a medical procedure; it's just cosmetic." This conversation makes perfect sense to me.
--The psychiatrist is not practicing medicine, but is instead acting as a medical expert. I don't think I want to say a chemist who testifies that a substance's chemical compound is toxic, and thus a suitable candidate for the cause of death, is practicing chemistry. If they conduct the psychiatric evaluation, then they are presumably acting towards the patient's health since a proper evaluation is, ultimately, intended to benefit their mental health (e.g., by avoiding an incompetent testimony that might undermine their mental health by resulting in prison time instead of treatment).
--Lessening of pain is, to my mind, reasonably seen as a promotion of a patient's mental health.
--The counseling itself may promote their mental health (e.g., they are in therapy and are anxious and stressed about their options, perhaps because they lack sufficient information). Alternatively, if by 'counsels' you mean 'informs' (e.g., while sitting in their office or over the phone), then the physician is not practicing medicine but is basically acting as an expert source of evidence as in the legal case.

Basically, I wonder whether C&T might just think some of these sorts of examples beg the question, and might resist the claim that describing these as 'practicing medicine' is intuitive by default. I didn't share the intuition in each case. Lastly, what it legal should not be the metric here. We can make acts legal or illegal without any regard for the essence of medicine or the right answer to the philosophical question of what does or does not justify a conscientious refusal.

Bob Kelly          July 5, 2021 at 7:24 PM

Sorry, on (2), do C&T (or proponents of an internal morality of medicine generally) need *promoting health* to be sufficient for practicing medicine? I'm not sure why they would, but maybe I'm missing something?

Stephen Kershnar         July 6, 2021 at 6:16 PM

THE NATURE OF A PRACTICE: ORDINARY ENGLISH, LAW, TRAINING, AND PROFESSIONAL GOVERNANCE

Bob:

Great points. Thank you for them. Let us consider the necessary condition first.

You respond that in in the first two cases I listed, the person is not practicing medicine, but merely using his medical expertise.

(a) Cosmetic surgery
(b) Psychiatric expertise in a criminal trial

In the second two cases, you note that it is plausible that the professional is practicing medicine.

(c) A physician seeks and accomplishes a lessening of the patient’s pain with no gain in her health.
(d) A physician counsels a fertile couple about birth control or puts an IUD in a woman.

You point out that in the second two cases, the physician either promotes patients’ mental health or is not practicing medicine but, instead, acting as an expert source of advice or evidence.

Still, in ordinary English, we would expect to hear a physician who did one or more of (a) through (d) as most of his work, say that he was practicing medicine.

Legally, what authorizes his activity – prevents it from being a battery – would be the part of the law that addresses medical practice.

Professionally, a person who did these things was trained in medical school, rotations, or residency to do exactly what he is doing.

Professionally, he would be governed by the accrediting medial agency.

The pattern of (i) ordinary English, (ii) law, (iii) training, and (iv) professional governance all suggests he is practicing medicine. If a four-part parallel pattern were true of a lawyer, we would say he is practicing law. A similar thing is true of an accountant or engineer.

Thus, while I think your point is a strong one, the presumption created by (i) through (iv) is, to my mind, stronger.

In addition, if lessening pain without other gain in health counts as promoting mental health, than all long-term pain-relief techniques are a way of practicing medicine. Yoga instructors and masseuses, though, are not practicing medicine.

Best,
Steve K

Stephen Kershnar         July 6, 2021 at 6:16 PM

THE MYSTERIOUS SECOND CONDITION: CONVENTION, GOVERNMENT-REQUIREMENT, SOCIAL UNDERSTANDING, OR UNIQUE GOOD

Bob:

Great points. Thank you for them. Let us consider the sufficient condition.

You point out that the drill sergeant case is unconvincing because promoting (specifically, preserving and restoring) health need not be sufficient for practicing medicine. If this is correct, the drill sergeant is not practicing medicine.

Consider what else would be required to practice medicine in addition to promoting health.

If it is a convention, government-requirement (for example, being licensed), or social understanding, this cannot account for what an unlicensed physician does or what a physician does before these things are in place. Consider, for example, what a physician might do in the state of nature. Consider, also, a physician in a society that lacks the relevant convention, requirement, or understanding.

If, instead, it is something that is not a not a convention, government-requirement, or social understanding, then it focuses on the nature of the good provided. The problem is that this means whenever a physician in fact fails to promote this type of good, health – for example, the patient was too far gone – then he was not practicing medicine. But he was. Ditto for when he tried to help but ended up worsening the patient’s condition.

The problem, then, is that if your point were correct, there would be a condition in addition to the promoting-health condition. I do not think there is such a condition beside one which undermines the promoting-health condition in at least some cases.

Such a condition prevents the promotion of health from being necessary (for example, the physician fails to promote health) or sufficient (for example, drill sergeant) for the practice of medicine.

If this is correct, then promoting-health is neither necessary nor sufficient for the practice of medicine.

Best,
Steve K

Harvey Berman            June 29, 2021 at 3:36 PM

First, I wish to desribe to my Romanell colleagues that I chose this paper because I agree with the theme that medicine — and I add in nursing as well — is more than providing a service to walk-in clients, more than vacuum repair, selecting draperies and, in a nod to a Romanell friend, more than selecting a financial advisor. I remember thinking how shallow was the 2017 thesis of Stahl and Emanuel, and I couldn’t understood why Stahl and Emanuel were taken so seriously, that if a student were to become a physician he would be obligated to perform every procedure associated with medicine. Even a bus driver — demanding to drive only buses fueled on sustainable energy, but not fossil fuels — or a barista — demanding to make only lattes based on plant-based ingredients and no animal products — can see the flaw in such thinking.

I like how Curlin and Tollefsen take with equal seriousness decision-making of the obvious disputes that arise in considering abortion, end-of-life decisions (assisted suicide), genetic enhancements, gender reassignment, and who knows what else the future holds, from the seemingly less obvious disputes that physicians might encounter on a daily basis, e.g., being asked to provide antibacterial therapy for a viral-mediated condition. It is in the latter dilemmas, the small nudges a physician will bear — in which he weighs his own enrichment and satisfies a shallow notion of patient approval — that personal character and professional integrity are foretold. If a physician will abjure responsibility on the “small” questions, what will he do when he comes to the bigger and more difficult life-death questions of practice?

I agree with the goals of this essay, but I ask how it is to be put in practice, cognizant that medical schools are now big business, many encompassing high-tech centers, and many others franchising their names while satisfying minimalist standards.

Curlin and Tollefsen throw down a marker and raise a high bar for medical schools in preparing students for professional — rather than technical — medicine. But, sadly, it is much easier to teach technology and diagnostic algorithms, even to the least of the students, than it is to make students aware of thir coincident moral obligations to the patient and to the profession.

Replies

Stephen Kershnar         June 30, 2021 at 1:04 PM

THE WAY OF THE MASSEUSE

Harvey:

Is there a Way of Acting, Engineering, Farming, Law, Massaging, Plumbing, and Teaching that carries with it duties or permissions other than what the buyer and seller have agreed to?

(1) Yes. If yes, then I wonder how far this extends. Is there a Way of Selling Baseball Hats? In any case, how do others rights get undermined - thereby creating greater permissions or generating conflicting duties - if not via waiver or forfeiture?

(2) No. If no, why is medicine distinctive? It cannot merely be because it is more important. First, it's not more collectively important than farming and sewer work. Second, even if it were more important, this would override rights rather than creating new ones or destroying those in non-doctors.

Best,
Steve K

Harvey Berman            June 30, 2021 at 9:04 PM

Steve

Tell me where I am wrong.

It is not a matter of importance, and it is not a zero-sum game of what seems to be a value-judgment on your part.

Farming and sewer work are important. Medicine is important.

It seems you are implying a syllogism: Because farming or sewer work are important and medicine is important, they must engender similar degrees of conscientious objection.

I am afraid to ask: What in sewer work does CO come into play?

Harvey

Harvey Berman            June 30, 2021 at 9:05 PM

That should read: WHERE in sewer work does CO come into play?

Stephen Kershnar         July 1, 2021 at 8:41 AM

Harvey:

C&T argue that the Way of Medicine requires of a physician that he preserve and restore health or at least not act contrary to this goal. As a result, it permits conscientious objection to anti-health practices.

Their argument appears to be that there is an essence of medicine and that it carries duties and permissions above and beyond that people which ordinarily have in a right-based system.

My question is whether other professions - acting, massaging, and plumbing - have essences and whether these essences carry with them duties and permissions above that which is found in a right-based system.

I hope life is treating you well,
Steve K

Harvey Berman            June 29, 2021 at 4:01 PM

I ask Curlin and Tollefsen if The Way of Medicine is a play on Alan Watts’ The Way of Zen, laying out history and principles?

Replies

Stephen Kershnar         June 30, 2021 at 1:25 PM

THE WAY OF THE DRAGON

Harvey:

I think the article is named after The Way of the Dragon (1972), despite the fact that Lee's character is analogous to rights theory.

Best,
Steve K

Pat D    July 2, 2021 at 2:21 PM

I see that C&T have a book coming out in August called "The Way of Medicine," which hopefully clarifies what tradition(s) that they are drawing on. I take it to refer to Tao (Dao) as the Way of Wisdom - that is, the way disclosed by sound knowledge of first principles. Whether or not they are alluding to Alan Watts' specifically, they appear to be drawing from a similar wisdom tradition.

C.S. Lewis made a lot of the Dao tradition in his "Abolition of Man" - which dealt with the problem that the authors are addressing in historical/cultural terms and not simply medical terms. So, while I am in general agreement with them about the importance of conscientious professional judgment, I do not think that the issue can be resolved in logical terms. Arriving at agreement about first principles to distinguish between "justified and unjustified refusals" is more than a matter of logic. It calls for respectful dialogue, which Emmanuel and Stahl aim to preempt.

Harvey Berman            June 29, 2021 at 4:25 PM

I wonder how Curlin and Tollefsen agree or disagree with Stanley Goldfarb's opinion piece in the WSJ (Sept 12, 2019: Take two aspirins and call me by my pronouns).

His concern was that so-called 'woke' medical schools were increasingly focused on promoting social justice, climate change, and gun control more so than how to cure patients (paraphrasing).

What role does The Way of Medicine play in ideas of wokeness and potential faddish issues?

Which is to ask, how does The Way of Medicine determine what to include or exclude in a medical curriculum?

David H            June 29, 2021 at 5:20 PM

Tension between conscience and the way of medicine:

If conscience is an all things considered judgments about what one should do, then why can’t utilitarian doctors appeal to conscience and engage in conscientious refusal (CR) and let a patient to obtain his organs or let him die for he has lived many good innings and use scarce resources on the younger or let her die because her disability will prevent her from ever reaching the well-being that others can obtain. Or why doesn’t the appeal to conscience not only allow say a utilitarian MD to refuse to do something but to engage in an action that violates the Way of Medicine by inducing a pathology in one to raise utility in others? Why can’t a pro-choicer appeal to their conscience and ignore a ban on intranational aid being used to provide to access or information about abortion or a Bush presidency ban on using any new lines of stem cells derived from aborted fetuses? Are the authors just concerned with conscientious refusals and not protecting conscientious actions? That line can’t be defended by appeal to conscience. What work is conscience-based refusals doing that isn’t done by Way of Medicine, which I take to be what others (Boorse) have called “a pathocentric internal morality of medicine.” Isn’t an appeal to an Internal Morality of Medicine IMM enough? In fact, it prevents conscience-based appeals to provide abortion. I think Wicclair points out that conscience objection involves a symmetry that would allow not just refusals to do something that is legal but to do something that is illegal.

Replies

Stephen Kershnar         June 30, 2021 at 1:11 PM

IS THE C&T THESIS LEGAL OR MORAL?

David:

This is an excellent point.

If The Way of Medicine is a moral thesis, C&T still need to argue that the law should recognize this moral reason.

If The Way of Medicine is a legal thesis, C&T need a clearer argument as to why the law should track the essence of a field or the good consequences it brings about. The law permits many activities that do not track the essence of the field - for example, doctors putting IUDs in a woman - and activities which likely do not maximize the good - for example, smoking. If this were true, the argument is thin and unconvincing.

Best,
Steve K

Phil Reed          July 8, 2021 at 2:35 PM

David,

Wicclair does not defend a symmetrical view. His view is that we should not dismiss positive appeals to conscience outright, since the reasons for supporting refusals based in conscience may also apply to positive acts of conscience.

At some level, it is harder to justify forcing someone to do something that he thinks is gravely wrong than it is to prohibit someone from providing something he thinks he ought to provide.

It would be interesting to hear what C&T have to say about how their argument applies to conscientious actions.

David H            June 29, 2021 at 5:21 PM

Would Tollefsen and Curlin not on some occasions appeal to conscience to refuse the Way of Medicine?

They insist that one must treat the homosexual, criminal, and persons of other races on pain of violating “the constitutive professional obligation to see the health of patients precisely because they are sick, without regard to their other characteristics.” (571) Imagine a soldier who wants to be treated for something minor like flat feet which would result in him being sent off to fight in an unjust war or a futile war so he will either kill unjustly or be pointlessly killed. Or a soldier could be more quickly restored to health in order to stand trial in a corrupt court martial. If he remains sick – say loopy or unconscious a bit longer, he will avoid the kangaroo court. Would T & C allow doctors to refuse to so treat patients? They don’t let MDs refuse to treat HIV patients or criminals. I would imagine that they would object to doctors imposing an injury –flat feet or temporary loopiness or unconsciousness - that is, causing a pathology for the same ends – participating in an unjust or future war or kangaroo trial. If they would allow the earlier hypothetical conscientious refusals to engage in the Way of Medicine, would they try to save the Way of Medicine by claiming it is not a conscientious refusal qua doctor but a conscientious refusal qua citizen? That sounds like a stretch because they are not providing medical services they were expected to provide or asked to provide. Do the authors believe that is the duty of doctors to never pass on treatment that restores health (barring considerations of scarcity in which one person’s health comes at the expense of the health others?

Replies

Stephen Kershnar         June 30, 2021 at 1:23 PM

A PHYSICIAN CAN CHOOSE TO ACT AS A NON-PHYSICIAN BY TAKING OFF HIS PHYSICIAN-COLLAR

David:

(1) Tarasoff-Type Case. A therapist hears his patient say that he is planning to kill his business partner. He knows that if he turns the patient in, the patient will kill himself before the police can take him into custody. Assume the law requires the therapist - a psychiatrist - to turn in the patient.

If he should do so, then he acting contrary to the Way of Medicine because he will be worsening someone's health.

C&T might claim that is not his intent. This type of exception could disable the whole rule as whenever physicians are acting contrary to health, they could always say that they are not intending to set back their patient's health. It is merely foreseen.

(2) A physician works Monday through Friday as a psychiatrist. On Sundays, he calls himself a schmiatrist and works with the CIA and FBI on fine tuning the torture of enemies of the state.

Is this wrong because of the Way of Medicine? He is not acting in a physician role and surely he can do non-physician things in his off-time (for example, sponsoring parties for Never Trumpers at McDonald's).

(a) Yes. Yes, it is wrong. But then it is not voluntary whether someone occupies a role.

(b) No. No, it is not wrong. But then a physician can always take off his collar priest-wise and act contrary to health without violating the Way of Medicine.

Best,
Steve K

Stephen Kershnar         June 30, 2021 at 1:28 PM

CONSCIENCE IS A CONTENT-INDEPENDENT REASON

David:

Great point.

(1) As you point out, conscience can be used to justify a treatment or a refusal.

(2) If conscience as a justifier is independent of the rightness of an action (for example, a treatment), it is unclear why it does not apply to refusing to treat criminals.

If conscience is a reason, then it is a content-independent reason.

Best,
Steve K

Harvey Berman            June 30, 2021 at 6:52 PM

RE: Tarasoff. The law in California is that if a therapist believes that a third party is in danger of harm, then that therapist is obligated to warn the third part.

If the therapist does nothing, then Tarasoff is endangered, possibly fatally.

If he does warn Tarasoff and the police, then the patient survives and the therapist's patient is detained.

I see no problem of conscience.

Stephen Kershnar         July 1, 2021 at 8:45 AM

Harvey:

Interesting point.

The above Tarasoff case is one in which a physician - if he follows the law - acts contrary to his patient's health. He does so on behalf of someone who is not his patient.

My question is whether the duty to promote or preserve health, or at least not to act contrary to it, is overridden or undermined in this case.

If the response is that one person's health can be traded off for another, this introduces the sort of tradeoff morality that appears to be in conflict with the Way of Medicine.

Best,
Steve K

David H            June 29, 2021 at 5:22 PM

Is the restriction to limiting medicine to the way of medicine (which clearly includes treatment and probably prevention of disease as well mitigating the symptoms of dseases) too strong?

It isn’t clear to me what their view is of doctors refusing to do enhancements and cosmetic surgery. I wasn’t sure if their view of medicine just ruled out doctors inducing pathologies (abortion, sterilization, euthanasia etc.) or also would allow them to refuse to engage in non-therapeutic interventions (cosmetic surgeries, off label uses to enhance the attention of the healthy etc.). I would think it unappealing and difficult to defend the treatment of disease only line for that would mean dentists could refuse cosmetic teeth whitening or psychiatrists could refuse to treat non-pathological grief, or ob-gyns need not provide epidurals to women suffering contractions when delivering on the grounds that birth pains are not the result of pathology. Likewise, for PMS medicine which doesn’t treat a disease, sleeping pills for travelers passing quickly through time zones and other treatments for those who aren’t ill, drugs that help tired but not pathologically exhausted muscles to recover more quickly after exertion etc. In the paper’s abstract, the authors speak of just refusing to “contradict” the professions goals to “seek the patient’s health” healing goals of the profession of medicine and so if medicine is construed pathocentrically to contradict it would be to induce a pathology, therefore, enhancements would not contradict the nature of medicine, just not promote it. However, in the same abstract, the author’s write “…allow physicians to refuse requests for any intervention that is not unequivocally required by the physician’s profession to restore and preserve the patient’s health.” (p. 550) That would seem to allow to refuse to do the above things -epidurals, PMS medicine, teeth whitening, sleeping pills, grief counseling or other help with mental problems that aren’t pathological.

I suppose the authors could reject enhancements on the grounds that it took resources (scarce medicine and scarce experts away from treatments, but we can imagine that need not always be the case.) But one can read the following sentences to suggest more a more restrictive practice of medicine. P. 562 “This commitment to the patient’s health gives physicians a reasonable standard for discerning which requests should be accommodated and which refused.” Now it could be this reasonable standard isn’t exhaustive, meant to demarcate all cases, but it is natural to read it as doing so. On page 566 “For practitioners of medicine, then the central obligation in each of the four cases above is clear: act reasonably to preserve and restore the patient’s health, and refuse to act otherwise.” Perhaps C & T just mean to restrict the refusal to act otherwise to these four cases, not to limit MDs in all cases to just serving health promotion. Also, page 570 “The Way of Medicine, by contrast, distinguishes not between the professional and the personal but between that which fulfills the physician’s profession, and that which departs from or contradicts that profession.” I assume the disjunct of “departs” is meant to add something to the extension, not just include everything that the disjunct “contradicts” does. It isn’t just a description of a contradiction.

Replies

Phil Reed          July 8, 2021 at 2:58 PM

David,

What exactly is the downside for C&T to take the stronger view that physicians can refuse anything that departs from health? Why is that unappealing and difficult to defend?

If a dentist says to me, "sorry I don't do teeth whitening here because stained teeth are not dysfunctional and there is no health benefit in whiter teeth"...I wouldn't see any problem with that. It certainly is more awkward to turn down epidurals...but maybe anesthesiology is not the way to go if you want to practice the way of medicine.

As long as it's not an attempt to ban such practices from medicine (and medicine-adjacent practices) altogether, I'm not sure why it's a bullet to bite.

David H            July 8, 2021 at 3:10 PM

You are somewhat right. There is no real harm with refusing to do teeth whitening but is it principled to refuse to treat people whose non-pathological suffering (pain, grief, fatigue, sleepiness, cramps etc.) can be removed by medical expertise? It is not in principle at odds with a profession of healing, and it is impractical to train a different batch of technicians to do enhancements. Moreover, enhancements may be needed to prevent illnesses of the future as a ravaged environment leads to more diseases that say enhanced immune systems could resist. Informed consent is not essential to pathoocentric medicine but seems to me to be something external to medicine that we want imposed upon medicine by the broader morality

David H            June 29, 2021 at 5:23 PM

Is the restriction on transition surgery too strong?

The authors write “that certain practices are simply incompatible with commitments to patient health. Abortion, euthanasia, and sex reassignment surgeries, for example, would be seen as simply not the business of physicians.” (572) But we have the acceptable practice of Inducing pathology to prevent a worse pathology. We cut off gangrene limbs and remove cancerous organs to prevent diseases from spreading; we make those addicted to heroin become addicted to the lesser evil of methadone; we cut and damage skin to perform operations. So, if gender dysphoria is a disorder, and surgical transitioning is not a cure but the addition of another pathology, as I suspect the authors believe, then there is still the possibility that is the lesser of two harmful disorders. Maybe it prevents the worse symptoms of dysphoria, as well as depression and suicide So maybe it shouldn’t be categorically ruled out. Perhaps the authors will respond that the relationship between dysphoria and any gains from transitioning are not as intimately linked as the other pathologies that we induce to prevent greater pathologies.

David H            June 29, 2021 at 5:24 PM

What would the authors say about someone who has joined a medical practice knowing that the partners expect him to treat diseases as well as induce pathologies when they are thought to enhance patient well-being, but later comes around to wanting to conscientiously refuse to engage in such practices?

Can they refuse to do some of what they were hired for and had explicitly or implicitly consented to do? I am somewhat sympathetic to their discovering the nature of medicine and how distasteful it is to induce a pathology in the healthy. Perhaps they didn’t appreciate what it was like to act contrary to medicine’s nature. Maybe they were unaware of medicine’s essence. I think that respecting the nature and the integrity of the professional can override the professional’s consent to be hired to do such things. Steve K will no doubt think this is opening up a Pandora’s box that undermines contracts and promising.

Replies

Stephen Kershnar         June 30, 2021 at 1:42 PM

YOU CAN RUN BUT YOU CANNOT HIDE FROM WESLEY HOHFELD

David:

I do think this. Even worse, it is moral alchemy. People have natural rights and those rights derived from them. They likely exhaust the duties and permissions we have to others - more specifically, our claims, liberties, powers, and immunities against others.

(1) How can one eliminate a right except through waiver or forfeiture?

(2) How can one person owe a second a duty unless the second has a claim? Ditto for a permission and a no-claim.

Here are some more general questions.

(A) Do you deny the role of rights (more specifically, Hohfeldian relations) as exhausting our moral relations tied to others?

(B) If you do not, could you explain how this can be changed other than through waviver, forfeiture, or promising?

Best,
Steve K

David H             July 1, 2021 at 3:37 PM

Steve
I don't believe rights exhaust our duties to others. I should treat my friends with kindness but I don't think they have a right in the sense that they can use state power to punish me with fines, loss of opportunities , public shaming, and imprisonment etc. if I don't treat them kindly. So, they have a claim (of sorts) that I treat then with kindness, but it is not the business of legal system concerned (mostly?) with justice. So I tend to limit rights talk to what the state should enforce and protect even thought there is a sense of claim that the others have that I treat them kindly, charitably, respectfully etc.

It also doesn't seem very deontological in the sense that I can decide not to treat them kindly for other reasons - say I can not do what kindness to them requires because I want to help others or pursue some extremely important meaning-giving project of my own. so I can fail to show them kindness in order to act in the greater interests of others (say, being kind to others instead of being kind to my friend) or myself, while rights don't seem to be so easily outweighed by the interests of others.

Likewise, there may be some duties to animals but I am not sure that it is best accommodate by rights talks. It seems I shouldn't do certain things to animals - kill them to see what it feels like to take a life - but to kill one hedgehog to save five hedgehogs seems permissible. But it is wrong to kill one person to save five persons. So it seems like animals can't be treated like I do my basketball but they don't seem to have the rights that protect against being outweighed by the intererest of others so it doesn't sound very right-like in the standard deontologicals mmaner. So perhaps there is something to McMahan-like two tier ethical systems - a morality of respect for persons like us and a morality of interests for animals.

I also think there is something to Velleman's Kant-inspired idea that I have duty to myself, a duty of self respect, but it doesn't seem very natural to say that I have a rights claim against myself. It seems odd to complain that my right to respect was violated by myself. I can't be fairly punished for that lack of self respect as that would punish the victim of my disrespect as well. Velleman's argument is sometihng like I have the same value as you, so if I should respect your value even when it goes against my interests, then I should respect my value when it say goes against my interests. His case was when someone was tired of life, not getting enough out if, and thus wanted to discard it like a care that was no longer worth the trouble. In Kantian terms, We have a dignity that we have to live up, not a price that is comparable and can be exchanged for something comparable of of a lower value

I suppose I have given you ammunition for four long indignant posts. But I want to elicit one more indignant and hopefully humorous response:

I also suspect that there are limits to what one can contract. So if I take a job as a teacher and it is understood that my duties are those listed as well as those my employer may later add, it could be some aren't binding if they aren't an appropriate response to the nature and values of the institution. So if it is expected, legal, and standard for teachers to not teach the least intelligent to think critically so they will be content with following orders of their bosses in certain degrading employment or second class citizenship, I think I should refuse to teach them to accept authority. So it is not that a contractual right is waived, forfeited but that it didn't exist. Likewise for certain marriages. If MC paid you to marry her under certain conditions: be a submissive husband, attentive to her needs, to expect no reciprocity, to make no emotion demands upon her, to expect no support when you are sick or troubled, to expect no children, to speak only when spoken to etc., you might not be bound to that contract as it contradicts the nature of marriage.

Stephen Kershnar         July 5, 2021 at 3:52 PM

IF A RIGHT IS NOT A CLAIM, THEN WHAT IS IT?

David:

Very interesting post. Thank you.

You give three arguments against the assertion that (deontological) wrongness entails right-infringement. I make no such claim about consequentialist wrongness.

Let us begin with my three assertions.
(i) If an act is wrong, then it wrongs someone.
(ii) If an act wrongs someone, then it fails to satisfy a duty owed to that person.
(iii) If an act fails to satisfy a duty owed to someone, then it fails to satisfy a right (specifically, a claim-right).

Here are your arguments.
(a) Rights are limited to what the state should enforce and protect.
(b) Utility (interests) trumps some deontological duties, but not rights.
(c) We have duties to animals that do not correspond to rights [because we should be utilitarians toward animals and Kantians toward people.]
(d) A person can have a duty to himself that is not a right.
(e) There are limits to non-right-infringing contracts.

Propositions (a) through (b) fail because of the following assertions.
(1) If A owes a duty to B, then B has a claim against A.
(2) A right is a claim.
The first is an analytic truth and the second is quite plausible.

Proposition (a) is false. You would say that even if the state is illegitimate, a person has moral rights that others should respect. You would also say that certain acts are right-infringing even if a minimum state is justified and, hence, should not enforce some of the rights. Consider, for example, a right against defamation.

If a right is not a claim, then, on your account, what is a right?

Best,
Steve K

Stephen Kershnar         July 5, 2021 at 3:57 PM

AGAINST SLAUGHTERING KILLER WHALES

David:

Very interesting post. Thank you.

You give three arguments against the assertion that (deontological) wrongness entails right-infringement. I make no such claim about consequentialist wrongness.

Let us begin with my three assertions.
(i) If an act is wrong, then it wrongs someone.
(ii) If an act wrongs someone, then it fails to satisfy a duty owed to that person.
(iii) If an act fails to satisfy a duty owed to someone, then it fails to satisfy a right (specifically, a claim-right).

Here are your arguments.
(a) Rights are limited to what the state should enforce and protect.
(b) Utility (interests) trumps some deontological duties, but not rights.
(c) We have duties to animals that do not correspond to rights [because we should be utilitarians toward animals and Kantians toward people.]
(d) A person can have a duty to himself that is not a right.
(e) There are limits to non-right-infringing contracts.

If proposition (a), then it would be impossible to say that there are certain rights that are so unimportant, the state should not enforce them. But this is not only possible, we do in fact say this.

Proposition (b) confuses trumping weak rights (for example, a purported right to be treated kindly) and strong rights (for example, a right to one’s body). That is, the example is unclear and, when filled out, consistent with a rights thesis. In any case, I doubt there is a right to be treated kindly because this would be a right to get treated according to a specific motivation.

Proposition (c) confuses the discussion. A consequentialist duty is not owed to an individual. Rather, it aims to maximize utility. That is why if utilitarianism were true, we would have a duty to reproduce. If we should be utilitarians regarding animals and Kantians regarding people, this is consistent with my thesis.

On a side note, this is monstrous. Imagine we maximize utility by killing all killer whales because they creates ecological space for more dolphins (each of which has as much utility as a killer whale).

Do you really think we are permitted to do so? Even worse, do you think we are obligated to do so?

Your and Aristotle’s hatred of killer whales is clouding your thinking.

Proposition (d) does not defeat the thesis. First, just because we do not often label a duty to oneself a right does not mean it is not one. Second, an inalienable right is still a right. Third, a duty to oneself is mysterious if a person owns the related claim and, thus, has the (Hohfeldian) power to waive it. I am not sure how you are using dignity or why a dignified being does not have power over his claims. Who owns you?

Proposition (e) is odd. This is just a replay of proposition (d) and not a separate point. Again, why think an inalienable right is still not a right.

Best,
Steve K

David H            June 29, 2021 at 5:24 PM

If Health is not the highest, are the goods ranked?

I take it from previous RC papers by Chris Tollefsen and Pat Lee that modern natural law theory maintain that the goods are incommensurable. How does this cohere with the p. 573 claim that health is not the highest good? I suppose that s logically it is compatible with there being incommensurable goods, so none is the highest. But that is not the natural reading.

Replies

Stephen Kershnar         June 30, 2021 at 1:36 PM

IS INCOMMENSURABILITY PLAUSIBLE?

David:

Can you think of a good reason to think that token-goods - for example, a massive gain in virtue versus a very small gain in knowledge - are incommensurate.

This is different from type-goods being incommensurate. Consider, for example, knowledge, love, and virtue in general.

You clearly think the incommensurability thesis is extremely implausible.

Could you please explain why you think this.

Best,
Steve K

Pat D    July 2, 2021 at 2:49 PM

I take C&T's example of a patient's declining the benefits of medical technology (e.g. ventilator, dialysis, etc) to prioritize self-determination (or economically burdening one's survivors) over living longer. But the bigger question for me is what they mean by health. Can health take into account one's personal relationships, one's acceptance of finitude...as well as longevity? I am sympathetic to C&T's belief in an objective basis for determining evaluative standards, but their claim that health is an objective standard and well-being an arbitrary one is unsupported.

David H            June 29, 2021 at 5:26 PM

Unintended Consequences of the PSM that are unwelcome:

C & T claim that “Paradoxically patient choices reduced insofar as patients wanted able to find clinicians who share their judgement that such practices contradict the purposes of medicine.” (573) Why would any patients care that some MDs won’t do what those patients don’t want them to do?

David H            June 29, 2021 at 5:31 PM

Do C &T exaggerate the lack of medical expertise available on the PSM?

(573). I think that MDs can still provide patients with their expertise on what maximizes patient health. It would be very odd if they didn’t do that when obtaining informed consent. So I don’t see the worry that “patients will often navigate treacherous medical terrain without adequate medical guidance.” (573) Is the worry that MDs won’t rely upon their medical expertise and provide the patients with their opinion about what will make them healthy, but just wait to hear what the patients want to do and then nonjudgmentally fulfill it? I don’t see why the most common practice will not be to advise the patient of their objective medical well-being and thus there needn't be the worry that “patients will gain technicians committed to cooperation and lose healers committed to their good.” (573)

David H            June 29, 2021 at 5:32 PM

Moral antagonism of the patient and doctor:

C & T fear that MDs will be pitted against patients as patients seek the doctors to be forced to do what they think is immoral. But the pathocentric Way of Medicine refusals prevent patients from doing what they think it is ethical to do. So, such refusals give rise to a moral conflict between MD and patient. Do the authors think it is a morally worse conflict if MDs are forced to do what they think is immoral than the patient is forced to do without services they think it ethical to receive? Still, refusals increase moral conflict. Maybe protected refusals aren’t really “forcing” anyone but it is still a moral conflict if patient is denied what they feel is ethical and perhaps no other MD provides it.

Replies

Phil Reed          July 8, 2021 at 3:28 PM

Of course it is worse if MDs are forced to do what they think is immoral than the patient is forced to do without services they think it is ethical to receive. Forcing an agent to do something she thinks is wrong interferes more with that person's agency than refusing to give a person something he thinks he ought to have (all things being equal).

Hence, refusals do not increase moral conflict more than denying refusals. Moral conflict is unavoidable here.

Stephen Kershnar         July 12, 2021 at 11:58 AM

FORCING DOCTORS TO DO WHAT THEY THINK IS IMMORAL

Phil:

Here is your statement, “Of course it is worse if MDs are forced to do what they think is immoral than the patient is forced to do without services they think it is ethical to receive. Forcing an agent to do something she thinks is wrong interferes more with that person's agency than refusing to give a person something he thinks he ought to have (all things being equal).”

I think this is misleading.

(1) Badness. It is a contingent matter as to whether it is worse to make someone do what he thinks is wrong than to deprive someone of his service.

For example, it is better if an overdosed drug addict will die without Naloxone, it is better that a police officer be forced to give it even if he disagrees than that a drug addict does without it.

(2) Wrongness. The wrong-maker for forcing someone to do what he thinks is wrong is the use of force.

That he thinks it is wrong is beside the point.

For example, a resident on the Texas border has the only supply of antivenom in a large region. The police show up and forcibly take it from him to save the life of a murderer on death row who was bitten by a Texas coral snake. Does it matter whether the antivenom owner thinks it is morally wrong to save such a person’s life? Intuitively, it does not seem so.

If the issue is force, then, other things being equal, forcing physicians to do things is wrong. This is independent of why a physician thinks an act is wrong and whether he is correct in his thinking.

If, instead, the issue is unjust force, then we are back to figuring out what justice requires. That is, we are back in the realm of rights.

Best,
Steve K

David H            June 29, 2021 at 5:34 PM

The authors claim that there is a Loss of moral seriousness with PSM:

I take it that the (573-574) worry is that MDs are just concerned with patient’s subjective construal of well-being instead of the objective good of health dictated by conscience. But the patient is pursuing what they take to be the objective good of their overall well-being. The MD is pursuing the objective good of health. Why is the patient’s pursuit of overall objective well-being less morally serious than their objective health? If either is a pro tanto good it is health, as that can be outweighed by other well-being enhancing goods – dignity, independence, etc.

David H            June 29, 2021 at 5:38 PM

Could medicine cease to be pathocentric and the way of medicine no longer characterize the medical profession?

This could be because medicine evolves and remains the institution of medicine, perhaps because it is defined as a cluster concept and other sufficient conditions move to the forefront (this may be how Schuklenk and Smalling should be interpreted when they claim the focus just on treatments is a practice of the past that is less prevalent today). Either fighting pathologies or engaging in biological-based enhancements or well-being raising patient preferences is sufficient but neither are necessary. Alternatively, if the institution called medicine becomes more focused on increasing well-being than restoring heath and preventing disease, then it has just been replaced by another institution. I wonder whether the authors think that this is possible in the near future – either medicine is replaced or remains in non-pathocentric form? Then their objection must just be based upon a broader morality than a role morality and medical integrity. What also could occur is that medicine gets outsourced and non MDS provide contraception and abortion pills through the mail or over the counter.

Now I think conceptual analysis can presently show that medicine is still pathocentric if one imagines individuals only doing enhancements and others only combatting pathologies. I take it we would be reluctant to call the first doctors, but not the second. But I wonder whether this response will change sooner than later and both are considered doctors.

David H            June 29, 2021 at 5:47 PM

Does the demoralizing of doctors not work in both directions?

The authors write “…the PSM contributes to a crisis of medical morale, because the PSM quite literally de-moralizes medicine. If medicine merely provides desires services to maximize the patients vision of well-being, then medicine pretense to moral seriousness is a charade and its attempt at professionalism a façade.” (574). Would there not be many MDs demoralized if the Way of Medicine meant they couldn’t can’t end someone’s suffering by hastening their death? Would not some MDs be demoralized by being unable to help their patient with an unwanted pregnancy, especially if due to rape? Could they not be demoralized by not being allowed to help someone transition who had been living for years as a closet woman or man when biologically classified as the other? See the author’s list on page 572 of what services physicians can’t provide if accordance with the Way of Medicine. (This is not to say that I think doctors should do these things as I am a pro-lifer who would seek to legally ban abortion even in the case of rape; and I believe health professionals should be able to refuse to offer any interventions that produce pathologies as I advocate a pathocentric internal morality of medicine).

Perhaps the authors can accept this and their point is just to highlight that the demoralization resulting from patients demanding they perform actions that they have objections of conscience towards is a consequence of not allowing conscientious refusals. I suspect that they can argue it is a worse demoralization from the perspective of medicine as the refused interventions may harm patients (leave them with less well-being than if the desired act had occurred) but they don't cause them medical harm. So doctors are being demoralized qua doctors is they can't refuse, while doctors not allowed to induce wanted pathologies are not being demoralized qua doctors

David H            June 29, 2021 at 5:52 PM

Isn’t it possible for medicine to be construed as a profession on the PSM?

The authors write "Unfortunately, by surppressing conscientious practice, the PSM reduces medicine to a demoralized job and augures the end of medicine as a profession" (562). Couldn’t medicine be a profession if the commitment was to alleviate suffering or maximize patient well-being. Doctors could profess an allegiance to eliminating suffering and thus defend Euthanasia and PAS on such moral grounds.

David H            June 29, 2021 at 5:53 PM

The goal of Medicine according to the PSM and the role of medical Professionals:

The authors also claim that “Because the PSM eschews any objective end for medicine, the professional obligations of the physician must come from outside the practice of medicine.” (566) But why couldn’t the goal of medicine of the PSM be interventions that are medical (or if that is circular, then biological) that improve the patient’s well-being? The obligations of the physician would be then to enhance the patient’s well-being by using their medical/biological expertise for interventions (or withdrawals of omissions.) I think Boorse argued in his published Goals of Medicine paper and in his earlier RC conference keynote presentation of that paper, that there was an internal morality of medicine, just a thin one aimed at the patient’s needs or well-being. He claimed there was no golden pathocentric age of medicine as ancient Greek doctors prescribed contraception and Victorian doctors started anesthetizing women in delivery so they wouldn’t suffer non-pathological pain due to the heads of babies being too big for their exits.

David H            June 29, 2021 at 5:53 PM

Defining the Personal and the Professional:

The authors write that the problem with distinguishing the personal from the professional “…is that the term personal” has no meaning in these debates except not professional and not professional has no meaning unless one can specify the content of the physician’s profession.” (569) I suspect that “personal” can be understood as the patient’s own conception of well-being that can be advanced by biological interventions and contrasted with other alleged goods and goals such as the doctor’s values or the goals of health. One doesn’t need to first define the profession of medicine to define personal. But I do find convincing the author’s claim the professional standard the advocates of the PMS appeal to is rather amorphous and arbitrary (dare I say, “personal”?) – caring for immigrants but not fetuses on the basis of nonmaleficence or allowing refusal of Physician-assisted suicide as it is still controversial while abortion is settled medically. Perhaps Emmanuel and Stahl mean that abortion is national-wide and constitutionally protected law and supported by medical organizations while Physician-assisted suicide is only legal in some states and the medical organizations are divided or opposed to Physician-assisted suicide

David H            June 29, 2021 at 5:55 PM

A Better Respect for Pluralism:

The authors write some practices are “simply incompatible with commitment to patient health. Abortion, euthanasia, and sex reassignment surgeries, for example, would be seen as not the business of physicians. Yet there would be considerable room for disagreement, given the complexity of health and the vagueness of indeterminacy around its boundaries...” (572) What would be some examples of medical plurality endorsed by the Way of Medicine? Would it be cases where there were controversies about whether some condition was a disease and so doctors could refuse to treat it or could refuse to produce that condition in their care of their patients? Does anyone have examples in mind? I was sort of surprised that what sounded like a pathocentric account of medicine was being touted for its respect for pluralism. One might think pluralism in medicine would allow sex changes as there are conception of health in which someone’s dysphoria is cured by the transition or was never ill but just unhappy with “assigned sex.” Some intellectuals defending transition decry the medicalization of the issue. I understand that because the authors are advocating for the acceptance of more medical refusals that they are allowing a greater pluralism in who practices medicine than the advocates of PSM advocates, not requiring say pro-life doctors to be radiologists or leave the field rather than provide treatments that they conscientiously object to. But it doesn’t seem like they are allowing more pluralism in the procedures that doctors can provide.

Replies

Phil Reed          July 8, 2021 at 4:06 PM

Here are some examples: a patient requests ivermectin for treatment for Covid-19 or Ambien for treatment for insomnia. These treatments presumably are not "simply incompatible with commitment to patient health" but some MDs might judge them to be in fact incompatible with commitment to patient health. C&T want there to be room for disagreement here (which seems fair). The point I think is more about treatment than what counts as disease.

I am worried that "health" cannot do as much work as C&T want here (a point that is connected to some of your above comments about well-being and also Pat Daly's comment).

David H            June 29, 2021 at 5:56 PM

PSM leads physicians to provide conflicting ends:

The authors criticize the PSM for it would allow this fetus to live as the mother wants to continue her pregnancy but would kill another fetus as that mother wants the pregnancy to end. (572) Now I think it is difficult for a doctor to be both a killer and a healer but that is not the author’s point, but one that Kass makes. However, contradictory ends will be common with informed consent on either model of medicine. One woman fearing cancer will want her breast removed, another will want her breast saved. We could generate many such cases. Patients in identical states will disagree whether to continue treatment or call it quits and so doctors will treat one patient but not the patient’s medical doppelganger

Stephen Kershnar         June 30, 2021 at 1:13 PM

DIALOGUE PART I

Any resemblance to actual persons, living or dead, or actual events is purely coincidental


Part One: Slaves of the State

Thrasymachus: I do not understand the concern about conscientious objection. Shouldn’t this just be part of physicians being in private practice? After all, both doctors and patients own themselves and therefore can reshape their right and duties regarding medical treatment.

David: Physicians and patients do not own themselves. Instead, they are either unowned or owned by the state. The fact that one of these things is true explains why they can, and in fact must, refuse to provide medical care that does not promote health.

Thrasymachus: How can someone be unowned? Does no one have a say as to what can happen to his body?

David: Good point. In fact, they are not unowned. Instead, the state owns their bodies. Of course, the state must make decisions based on Rawlsian principles with suitable modification for social-justice considerations.

Thrasymachus: So, we are slaves of the state?

David: Well, I would not put it that way. But, in a very real sense, yes.

Phil: No, no, no. David is not right. The inner logic of medicine justifies conscientious objection. This inner logic prevents physicians from counseling, performing, or making referrals relating to abortion, euthanasia, fornication, physician-assisted suicide, and recreational use of alcohol.

Thrasymachus: But how can we have rights and duties distinct from natural rights and those rights derived from them?

Phil: There is a magical transformation – alchemy if you will – that occurs when a physician puts on his or her lab coat or scrubs. This creates whole new rights and duties justified by the coat or scrubs. These duties compete against the above-mentioned rights and often trump them, although I do not like the word “Trump” because I am a Never Trumper.

Thrasymachus: But how can clothing justify new moral factors?

Phil: Well, it is not the clothing per se, but the role they represent. Let me put it this way, if a physician were to wear different clothing or call himself a “shmysician,” he would not have these duties.

Thrasymachus: Wow, I guess it really is possible to do medical ethics without a narrow focus on rights and consent. But do other professions – engineers, lawyers, plumbers, or professors – have the right to conscientious objection?

Phil: Obviously not. Do they were distinct clothing?

David: Phil is right, but not for the right reason. Physicians are our best and brightest. Hence, it is unsurprising that they have conscientious-objection rights that the rest of us lack.

Thrasymachus: [Grumbling] My parents told me that if I did not become a physician, I wasted my Cornell education. But who knew this would affect my moral world?

Replies

Phil Reed          July 8, 2021 at 4:30 PM

Thrasymachus: my earlier comment entails that the only account that makes sense of someone having a say over what happens to his body is self-ownership.

David: But the things that we own we can sufficiently distinguish from ourselves, such that, for example, we can sell them to others. Do you think we can sell ourselves?

Thrasymachus: Of course! You can sell yourself to the state, for example, and be a slave of the state. This is what Joe Biden and other communists prefer, and they actually think that we already have tacitly done this by accepting services from the government.

Phil: why do you think we have a right to sell ourselves?

Thrasymachus: Because there is a natural right to do so.

Phil: where does that right come from?

Thrasymachus: nature! as I already mentioned. When you are a person, there is a magical transformation - alchemy if you will - that occurs when you become distinct from someone else at birth that gives you a whole set of rights that exhaust the content of morality.

Phil: so if my neighbor is starving and I'm in a position to help him with little cost to myself, it's a mistake to say that I ought to do so because he has no right to my help?

Thrasymachus: Right! As long there are no rights violations, justice is the advantage of the stronger, as I told Socrates.

Stephen Kershnar         July 12, 2021 at 12:44 PM

DIALOGUE PART IA

Transitivity versus Cain and Britney Spears’ guardian

Thrasymachus: My apologies. I think I am missing something obvious here. If I have a duty to help a neighbor (owed to him), then – necessarily - he has a claim against me.

Phil: Absolutely.

Thrasymachus: And a right is a claim?

Phil: Exactly. On some accounts, a right is a power or power and a claim, but I reject these accounts. After all, killing or torturing an infant infringes her right and she does not have a power.

Thrasymachus: But if (1) a duty entails a claim and (2) a claim entails a right, then (3) a duty entails a right. As a result, the neighbor has a right that I save him (assuming he can, others cannot, the cost is low, etc.).

Phil: Yes indeedy.

Thrasymachus: But if (3a) the starving neighbor has a right that I help him, then he owns my body, labor, or food.

Phil: Dig it. Dig it.

Thrasymachus: But he clearly does not own my body or labor for I am not his slave. He does not own my food because he did not own the ingredients that went into it. Nor did he anything to create, preserve, or transfer it.

Phil: The neighbor owns you. He does not own your food. He has no connection to your food. C’mon man, focus.

What Cain (from Genesis) teaches us is that I am my brother’s keeper. As a result, we should all be treated like Britney Spears. We do and should have guardians who get to decide whether and with whom we have sex, marry, or have children.

Thrasymachus: Freedom really is overrated.

Phil: Freedom is the last refuge of scoundrels and Trumpers, but I repeat myself.

David H            June 30, 2021 at 1:32 PM

Dialogue between Hippocrates and Steve Kershnar:

Hippocrates: I take it that Steve’s view is that it would be morally permissible for a physician to give two gladiators pain killers and steroids before and during a deadly duel to increase the excitement, barbarism and longevity of a battle until one is dead or incapacitated?

Steve: Sure, if they were all competent when they agreed.

Hippocrates: If one gladiator is alive but too injured to continue to fight , it is permissible for the doctor to cut off his head or stab him through the heart to put him down and keep the day’s duels on schedule?

Steve: Sure, as long as he has the consent of the beheaded or the parents or proxy of the dead teenage gladiator. In fact, perhaps the wishes of the teenage gladiators can be overridden as the owner of the property or the organizer of the duel could lose thousands of dollars if any of the events are postponed and ticket holders refunded but staffers and vendors still have to be paid. Postponements, like taxes, are theft.

Hippocrates: If the gladiators agreed that the winner can sodomize the corpse of the loser, should the doctor prescribe Viagra to facilitate the necrophilia?

Steve: It would be unprofessional if the physician did not do so. Who the f&$k does he think he is?

Hippocrates: If the gladiators agreed prior to the fuel that the dead gladiator should be carved up and eaten by the winner in a feast celebrating the victory, should the physician use his surgical skills to cut and carve up the body of the dead, sodomized corpse?

Steve: Of course. Everyone owns themselves. Not allowing people to transfer their bodily property is a rights violation.

Stephen Kershnar         June 30, 2021 at 3:26 PM

DIALOGUE PART II

Part Two: Saint Thomas to the Rescue

Jim D: David and Phil, are well-intentioned, but off track. The right of conscientious objection is a right based on natural reason. Natural reason is sound reasoning informed by God’s law. A millennium ago, Saint Thomas Aquinas broke the moral code wide open much as today’s scientists recently broke the DNA code wide open.

Thrasymachus: If everyone has this right, then may people conscientiously object to doing anything, except to avoid touching others’ bodies and stuff?

Jim D: No. The rights and duties must be consistent with God’s law. This prevents people from conscientious objecting to things that God’s law mandates. Consider a wife who conscientiously objects to having sex with her husband. God’s law mandates her participation and so she may not conscientiously object.

Thrasymachus: If God’s law justifies conscientious objection, then only those whom God gives the right to conscientiously object have that right. And he gives this right to physicians alone. Do I have this right?

Jim D: Yes! A physicians’ right to conscientious objection is just a general application of natural reason informed by God’s law. God views physicians as his chosen people and so gives them an extra right as a way of helping others join him in loving union.

Thrasymachus: Still, I wonder if God – as great and wonderful as he is – gets to decide who may conscientiously object. One would think he would need a reason for this. Perhaps his divine plan is his reason. This might seem empty – his plan justifies his law – but a plan feels so very different than a law.

Jim D: Exactly.

Thrasymachus: Better yet, we can combine the theories. God owns us like chattel slaves and, so, wants us to act according to his inner logic of creation, which in turn is natural reason informed by God’s law. This would combine the insights of David, Phil, and Jim D, yet explain why they are feeling different parts of the elephant, albeit the best parts.

Phil Reed          July 9, 2021 at 9:03 AM

MEDICAL CONSENSUS AND JUSTIFIED REFUSALS

The 2017 Stahl and Emanuel paper is bad and Curlin and Tollefsen do us a great service in criticizing it. Nevertheless, let me say something in defense of S&E.

C&T insist that S&E’s position has no principled or nonarbitrary standard to adjudicate when a physician can refuse a service a patient wants and when the physician cannot. I think S&E have a stronger case than C&T allow.

S&E believe that the profession of medicine is committed to a patient’s well-being. They claim that whether some treatment contributes to well-being is worked out via physicians’ reflective equilibrium. How do we know if reflective equilibrium tells us whether abortion, say, can be legitimately refused by a physician? S&E’s answer is: professional consensus. “Professionals debate issues until there is consensus but not necessarily unanimity” (1382). When allowing that PAS, e.g., can be legitimately refused by physicians, they cite polling data that shows a majority of physicians do not view PAS as a legitimate medical treatment (note 27)!

So the standard is: if a consensus of physicians believe that treatment X is a legitimate part of medicine, then physicians should not be able to conscientiously refuse X.

Physicians can refuse PAS and medical marijuana because there is currently a medical consensus that these are not part of medicine. (How do we know? look at the polls.) Physicians can also refuse requests for antibiotics for viral infections and hemodialysis for lung cancer because there is a medical consensus that these are not effective for these indications. Physicians cannot refuse abortion because there is a consensus that it is part of medicine (i.e. the majority of doctors are pro-choice).

So contrary to what C&T claim (570), it is not enough, according to S&E, that a practice be “controversial” for it to be legitimately refused by a physician. _Societal_ disagreement is irrelevant. Instead, what the majority of physicians think seems to make all the difference for S&E.

Is this a nonarbitrary and objective standard? It depends on what one means by these terms. It is nonarbitrary and objective in the sense that it does not depend on what any one individual believes. Nevertheless, if the consensus view changes then legitimate refusals will change. If PAS comes to be approved by the majority of physicians (which should be soon if we aren’t already there), then a physician should not be able to refuse PAS according to S&E’s argument.

One might not find this standard compelling (I don’t), but it is a petter position than C&T acknowledge. And if it is not compelling, it is frustrating that C&T conclude their article by appealing to consensus: “unless and until consensus is forged regarding the ends of medicine, refusals of controversial practices cannot be shown to violate physicians’ professional obligations” (574). Why should consensus about the ends of medicine matter, given their argument emphasizing an objective standard for the medical profession?

Replies

Phil Reed          July 12, 2021 at 11:18 AM

On p. 570, C&T do discuss consensus directly and claim that S&E’s view about it is arbitrary and self-contradictory. I’ve argued above that it’s not arbitrary (in some sense). In what sense might it be self-contradictory? C&T say that there is a consensus among physicians to allow conscientious refusal...so physicians pay attention to consensus sometimes and not others. This objection is better, however consensus about conscientious refusal is not consensus about a treatment, so there is not necessarily a formal self-contradiction here. S&E believe that we should defer to the consensus view about what constitutes standard medical treatment, but not defer to the consensus view about whether physicians should be able to withhold treatments that there is a consensus supporting.

Jonathan Vajda            July 13, 2021 at 2:05 PM

Very interesting paper. There are lots of aspects I am very sympathetic to, not just the premises but also the general ballpark of what physicians should be focusing on. In other words, I am rather contrary to the PoS model (*ahem* - that stands for provider of services, just to clarify).

While the Way of Medicine thus described gives fairly clear boundaries for what is a doctor's professional goal, I think this does not reflect either the current or the historical telos of the profession. The obligations to seek patient’s health are among the goods to be secured, but other aspects of well-being are as well. A doctor has other interests for a patient’s well-being than their health.

Perhaps the author can say that there is an order of goods to be secured, and when all things are considered health is what the doctor focuses on or maximizes. This is not the same as saying it is the most valuable, but rather that if a patient can’t have both X and Y, and if X is a health-good then the doctor will try to preserve X, irrespective of Y.

For example, to keep private information confidential; this may in some cases not affect health, but promote well-being, but it is not only best to keep information private but also obligatory.

Likewise, a doctor should be cognizant of the costs of care, so that they can assist a patient in recognizing what they are getting into, in terms of treatment options, among which there may be ones that maximally promote health but cannot be afforded.

Jonathan Vajda            July 13, 2021 at 2:16 PM

Even if PSM is the preferred model for physicians, I'm not sure it can be the only one anyway. Doctors are not only providing services that are wished by the patient, but also making health determinations and treatment decisions when a patient's idiosyncratic goals are completely unknown. The doctor in that case usually promotes health, maximally I might add, until the patient is in a condition to choose otherwise.

Jonathan Vajda            July 13, 2021 at 2:24 PM

Robert Veatch argued that informed consent should be replaced with a value-pairing model, so that doctors can be better situated to provide a patient with treatment options and information that matches their life goals. For examples, a traditional catholic is paired with a catholic doctor; a feminist patient is paired with a feminist doctor; etc. Without getting into the argument in favor of that view, it seems if we adopted it, there would be an important shift in conscientious objection as well.

First, conscientious objection would almost certainly diminish in frequency. Doctors and patients are already mostly aligned in values.
Second, physicians would probably have *less* ground to raise objections, then, because they would be even more idiosyncratic.

Does the PSM better fit into this model? Does the Way of Medicine eradicate the impetus for a value-pairing model?

Thanks to the various participants in this blog for reading and commenting on our paper, and, entertainingly, on one another. I am going to start with some general remarks that situate our project; those remarks will help to address some of the issues that are raised early in this discussion (roughly pp 1-5) and also by Jonathan Vajda in his comments at the end. And then I’ll make a number of more piecemeal comments in response to the various objections, arguments, and interventions that can be found amidst the 27(!) pp of comments.  I won’t address everything worth addressing – some things need more thought or more space than I have at the moment; some interesting conversations seem to reach back into the history of interactions between the participants (David said in extending the invitation: “the Romanell Center Fellows  have a tendency to go off on tangents and try to settle old scores with each other on the blog (Steve Kershnar is the worst offender, and I often take his bait), so there may be times that you are left wondering what paper we are talking about.” What could he possibly have been referring to???!!)

Our book The Way of Medicine, from which this paper is adapted, emerged from a summer seminar Farr and I have taught for over ten years in which we traded off sessions, with his drawing from his clinical experience and mine from natural law thought.  I student once said “Isn’t it convenient that your two perspectives always end in the same answer?” and that then led to the structure of the book, which begins, across a variety of different issues, such as medical norms, doctor-patient relationship, role of double effect, beginning and end of life issues, and conscience, with a treatment from the “internal” ethics of medicine, and then proceeds to look at the same issues in terms of a broader natural law approach.

That broader natural-law-enhanced approach differentiates our work from some of the internal ethics of medicine approaches to which we are deeply indebted, such as that of Leon Kass. The enhancement is important: one could perhaps have an internal ethic of torture, but it, unlike the internal ethic of medicine, would not find vindication if set in the broader natural law context.

In order to avoid some of the rhetorical downsides of talk of “natural law” we identify the broader framework as “principles of practical reason knowable to all persons by natural reason”, which is pretty much Lewis’s definition of the Tao, which makes “The Way of Medicine” an appealing title, at least to my ears. However, no classic Hong Kong action film was consulted in the writing of this book.

To set things in an even broader context, I think a helpful way to understand what we are doing is to see it as continuous with the revolution in methodology of study of social practices and institutions initiated by HLA Hart and completed by John Finnis. Hart recognized the importance of the “internal point of view” for understanding such practices and institutions as the law: the point of view of someone for whom the law makes sense and offers reasons, for whom there is an answer to the questions “Why have law”, or “why obey the law”. This enables a move from seeing the “nature” of law as being a matter of patterns of behavior – commands of a superior backed by threat with a habit of obedience, e.g. – to seeing law as a matter of (particular kinds of) reasons for action – reasons for having law, and reasons for obeying it.

In Natural Law and Natural Rights Finnis extended the thought by arguing that the “internal” standpoint most relevant to understanding as social practice or institution was not just any practical standpoint, but the practical standpoint of a fully reasonable agent. So the way to understand the nature of medicine is not by conceptual analysis or observation of what is typically called “medicine” or identified as medicine by its gatekeepers, or by looking for common denominators across the history of medicine, but by identifying the point of such a practice (and its larger professional setting) from the standpoint of a fully practically reasonable agent.

We identify that point as: the committed pursuit and preservation of human health in relationships of solidarity between physicians and patients. And we identify as among the central norms of the practice so understood that: the physician is never to intend damage or destruction of the health of her patients. Finally, going very briskly here, we identify “health” in our account as having two forms of objectivity.  Health is an objective norm for an organism in a particular species, a norm in regard to which physicians have a special expertise; and health is an objective and basic good, one of several constitutive aspects of human flourishing, but the aspect to which physicians are specially committed.

An account such as ours can distinguish, as Finnis does in regards to law, between paradigm cases of medical practice, and cases that decline from that paradigm in some way but are called “medicine”: some forms of cosmetic surgery, elective abortions, euthanasia, getting unruly boys to behave in class by treating them as if they have a disorder. And it would identify the reasonable parameters within which contractual arrangements between physicians and patients should be made, rather than understanding medicine on the basis of the contractual arrangements that are in fact made.

Much later, David asks “Could medicine cease to be pathocentric and the way of medicine no longer characterize the medical profession?” This is like asking whether law could cease to be oriented towards justice. In one sense yes and in one sense no: the law did cease to be so oriented in Nazi Germany; but it thereby ceased to be law in the proper sense.  The same, mutatis mutandis, could certainly happen to medicine, and is to some extent happening.

Harvey Berman, who chose the paper (thank you!) writes: “I agree with the goals of this essay, but I ask how it is to be put in practice, cognizant that medical schools are now big business, many encompassing high-tech centers, and many others franchising their names while satisfying minimalist standards.”

And he also writes: “What role does The Way of Medicine play in ideas of wokeness and potential faddish issues?
Which is to ask, how does The Way of Medicine determine what to include or exclude in a medical curriculum?”

Wrt the second set of questions, we agree that wokeness and social justice fervor are threats to the conception of medicine we present. When the importance of health of a doctor’s patient is subordinated to broader social considerations of equity, then on our view, the Way of Medicine is being contravened and the most fundamental commitments of physicians are violated. And when social justice concerns generate absurdities like punishment for a physician who speaks of “pregnant women”, then the objective dimensions of health are being ignored in ways that we think will inevitably be detrimental to. e.g, the health of female patients. The medical curriculum needs to focus on health, objectively understood (while acknowledging that of course there are grey areas – nature has paradigm cases, and cases that decline from the paradigm, just as social practices do).

This is not to say that concerns about justice, fairness, discrimination, and the like have no place: it is also a violation of the Way of Medicine if a patient is not receiving adequate care from his or her physician because of personal racial discrimination or systemic disadvantages. But you just can’t say, on the Way of Medicine, that the remedy to racist discrimination is antiracist discrimination; I would argue that the physician’s solidarity with his or her patient is compromised if the relationship is made instrumental to the rectification of societal ills.

Wrt the first of Harvey’s questions, we think it is important to start where you can. If you work in a medical school, create support structures for medical students who feel besieged.  Make the case to friendly colleagues for something like the Way of Medicine. I don’t teach medical students, but I have a group of pre-med students who meet on my porch every so often to chat about their concerns for their future.  Farr runs the Theology and Medicine program.  A former student, Brewer Eberly, started a forum for student formation, Phronesis, in medical school. There is no quick or easy fix in the renewal of any large-scale social reality, but small steps can make a difference.

David Hershenov asks, “What work is conscience-based refusals doing that isn’t done by Way of Medicine, which I take to be what others (Boorse) have called “a pathocentric internal morality of medicine.” Isn’t an appeal to an Internal Morality of Medicine enough?”

In the context of the most heated disputes over conscientious objection and accommodation in medicine there is a tendency, manifest in Stahl and Emmanuel, to frame conscience as a matter of private judgment.  To the extent that there is such a thing as “private” judgment that stands in contrast to the norms of medical professionalism, that does seem like it would be problematic.  Our point is that for a physician working within the Way of Medicine, conscientious judgments – that is, the physician’s final judgments in practical reason about what is and is not to be done – about these disputed actions emerge or can emerge precisely on the basis of a principled understanding of the nature of medicine and hence medical professionalism.  Those judgments cannot be contrasted as private, in the way that judgments based on private animosity or prejudice might be. So framing a discourse about conscience within the “pathocentric internal morality of medicine” helps to address a particularly misleading form of objection.

David also asks about the relation between conscientious refusals and conscientious judgments that something ought to be done. Phil Reed says in response: “At some level, it is harder to justify forcing someone to do something that he thinks is gravely wrong than it is to prohibit someone from providing something he thinks he ought to provide. It would be interesting to hear what C&T have to say about how their argument applies to conscientious actions.”

I’ve talked about this is some other places, and I do think there is an asymmetry between cases in which someone judges that they must not do a certain kind of action, whether because they think no one should do it, or because they think no one with their roles and responsibilities should ever do it, and affirmative judgments of conscience that one should do such and such.  The latter are typically all things considered judgments, which can be adjusted if new reasons come to light; the former are sometimes absolute judgments, which no further information can change.

I think religious hospitals can prevent certain kinds of conscientious actions, such as conscientious abortions. And in general the bar is lower for preventing an action than requiring one, though there are exceptions; given the nature of medical commitments, it makes sense to require of emergency room physicians that if they are going to provide that sort of care, they must be willing and ready to provide it to everyone who needs it. But this brings us to a core issue: medicine, like any profession, does need gatekeepers, and that gatekeeping function cannot be exercised only wrt skills and medical expertise: an adequate commitment to the values of a profession is also a requirement for entry.  And thus we get back to David’s question about conscience, and the problem on which our paper is predicated: are physicians who believe that killing or mutilating human beings is as such incompatible with their commitment to health so outside the pale of medicine that they should be prohibited from practicing?

There are pragmatic reasons for answering in the negative: why purge the profession of members who have the integrity to resist threats and inducements to violate their conscientious commitments? But overall, the thrust of our argument is principled in the way described above: it is not just that such practitioners are reasonable in a Rawlsian sense: they are, we argue, right.

Stephen Kershnar writes:

A physician works Monday through Friday as a psychiatrist. On Sundays, he calls himself a schmiatrist and works with the CIA and FBI on fine tuning the torture of enemies of the state. Is this wrong because of the Way of Medicine? He is not acting in a physician role and surely he can do non-physician things in his off-time (for example, sponsoring parties for Never Trumpers at McDonald's).

(a) Yes. Yes, it is wrong. But then it is not voluntary whether someone occupies a role.

(b) No. No, it is not wrong. But then a physician can always take off his collar priest-wise and act contrary to health without violating the Way of Medicine.

I like this question because it illustrates that no story about the internal ethics of medicine or even the full Way of Medicine is complete for a physician unless and until it has been incorporated into a broader story about that physician’s life. Commitments are needed in a good life in order to pursue goods adequately and socially; but the various commitments an agent makes need to be themselves ordered in relation to one another – physicians who give little thought to how their medical commitments and marital commitments stand in relation to one another will often have bad marriages. The relationship of commitment to commitment in a person’s life should be coherent and make sense in a way that the part time doctor-part time torturer’s commitments aren’t and don’t. Certainly some political commitments could be incompatible with an agent’s medical commitments. On the other hand, being a physician does not mean that health is your only end any more than it means that it is the only end of your patients, and the occasional McDonalds, or better, Five Guys, does not seem problematic to me.

This is a good point to say that some rule of double effect seems a rational necessity for the Way of Medicine. Inevitably, the good physician is not going to always be engaged in the practice of medicine, and some things she does may have negative effects on her health or the health of others. If not intended, those are not necessarily contrary to her professional commitments, and it is false, on DE reasoning, to say “The above Tarasoff case is one in which a physician - if he follows the law - acts contrary to his patient's health. He does so on behalf of someone who is not his patient.”

And DE is even more of a necessity within the practice of medicine, since medicine inevitably involves therapies and interventions which in one way or another also do some damage to a patient – damage that is proportionate to the goods sought, to the extent that the intervention is reasonable, but that is not itself intended.

So I disagree with David when he writes:

But we have the acceptable practice of Inducing pathology to prevent a worse pathology. We cut off gangrene limbs and remove cancerous organs to prevent diseases from spreading; we make those addicted to heroin become addicted to the lesser evil of methadone; we cut and damage skin to perform operations. So, if gender dysphoria is a disorder, and surgical transitioning is not a cure but the addition of another pathology, as I suspect the authors believe, then there is still the possibility that is the lesser of two harmful disorders. Maybe it prevents the worse symptoms of dysphoria, as well as depression and suicide So maybe it shouldn’t be categorically ruled out. Perhaps the authors will respond that the relationship between dysphoria and any gains from transitioning are not as intimately linked as the other pathologies that we induce to prevent greater pathologies.

I think the gangrene – a clear health deficit – is the object of the surgery and loss of the leg a proportionate side effect; I’m not sure that addiction just as such is a health impairment – I’m addicted to caffeine – and it is the damage of addiction to heroin that is being mitigated but substituting methadone; the damage done to skin and organ in cutting is a side effect, as nicely discussed in Tom Cavanaugh’s book on Hippocratic Medicine.

Dysphoria and depression are also failures of health; but having the secondary sex characteristics of one’s biological sex is not.  So cutting those in order to treat depression seems to me to be a form of mutilation, disanalogous to removal of a gangrenous leg; and there are reasons to doubt that it “prevents the worse symptoms of dysphoria, as well as depression and suicide”. (I think that means I agree with David’s act analysis here: it is inducing one pathology to mitigate another, but I think that kind of act is wrongful.)

A quick point: I am more sympathetic to Phil than David as to the reasonableness of a physician simply saying no to something that is not health related; but sympathetic to David’s modest broadening of the consideration of how an intervention can be health related.  It is not obvious to me that reducing pain during an otherwise painful surgery or delivery has no bearing on health, and as David says, some enhancement might have health benefits down the road.  In general, I am not on fire to ban medicine adjacent practices anyway when the physician’s skills have obvious bearing on them in the way I am opposed to medically-contrary practices.

Another quick point: I am again sympathetic to Phil rather than David as regards this: “it is worse if MDs are forced to do what they think is immoral than the patient is forced to do without services they think it is ethical to receive. Forcing an agent to do something she thinks is wrong interferes more with that person's agency than refusing to give a person something he thinks he ought to have (all things being equal).”

On incommensurability: I see why saying “health is not the highest good” might suggest that there is one, but no, I deny any such ranking of goods good-wise.  This extends to tokens even within the same type, which has as a consequence that even medical expertise is often in no position to say what is best health-wise.  Much less are medical experts in a position to say what the patient should do overall, given the way that the good of health intersects with the varieties of other goods available to patients at any given time (including the good of avoiding this or that bad – since most health promoting interventions are associated with some bad side effects. 

Pat writes on this: “But the bigger question for me is what they mean by health. Can health take into account one's personal relationships, one's acceptance of finitude...as well as longevity? I am sympathetic to C&T's belief in an objective basis for determining evaluative standards, but their claim that health is an objective standard and well-being an arbitrary one is unsupported.”

To repeat from earlier, we think heath is objective in two senses: it is an objective (non-moral) norm for an organism in a species and it is an objective good for human beings. I have limited knowledge of that norm for human beings, but I do know some things: losing a limb is a privation of health, cancer is a privation of health and causes further privations, etc. If a physician is told that a woman has a mass of cells growing in her uterus and that it will continue to do so rapidly unless destroyed by chemical or surgical means, I think it makes a difference whether the mass is (a) an endometrial cancer or (b) an unborn human being. Specifically, it is not up to the physician or patient whether or not either counts as good or bad health: just as such, not looking at further health related consequences, the former is a privation of health, the latter is not.

On the other hand, how one addresses the fact of the health deficit that is cancer depends massively on the variety of other goods and bads one is faced with, and the “one” who is most relevant here is the patient.  I think this is the ground for patient authority in the clinical setting: the patient is the one who knows how the threat of cancer intersects with her personal relationships, acceptance of finitude, concern (or not) for longevity and more generally the whole range of other good-related commitments in her life.  So the physician ought not force some preferred health outcome, or some one conception of where health stands in the constellation of goods, on the patient.  But, going back to the specific topic of the paper, neither can the patient demand of the physician an intervention simply because it fits into her broader conception of well-being, even though it is other than or contrary to her health. The physician can say no to interventions that don’t serve health, and, we think, must say no to those that are contrary to health.

I don’t think this reduces to the kind of problem we see in the PSM.  Yes one patient will want to preserve her breast and another to have it removed. But the physician will only offer the removal option insofar as it actually offers some health-related benefit and if, in her view, keeping the breast is a bad idea health-wise, she will say so, and defer to the patient’s choice because she honors patient authority, and not because she believes that autonomous choice is sufficient for making the choice either morally or medically right. By contrast, to deny an abortion or an assisted death to a patient who wants one is, on the PSM, a failure to provide health care (this is something that is said over and over again); but that seems akin to saying that whether or not the cancer is unhealthy is a matter of the patient’s choice.

[Here, there was once what future generations will refer to as a Lost Dialogue of Tollefsen.  The Lost Dialogues were known for their philosophical sophistication, wit, and astute portrayals of the human character. Few could read them without being deeply affected. Yet none remain. It is a damned shame.]

Phil raises an objection to our claims about Stahl and Emmanuel that their view has “no principled or nonarbitrary standard to adjudicate when a physician can refuse a service a patient wants and when the physician cannot” and suggests that they do have such a standard, viz., consensus (not the same as unanimity). Understood as a standard that makes it the case that x is a service that can be refused and that y is not, I think this is indeed arbitrary and unprincipled, a version of might makes right. It is not the consensus that makes it the case that, say, PAS is radically contrary to the commitments of medicine; rather it is the fact that PAS radically contravenes the normative end of medicine that makes it wrong and, I think, not tolerable within the medical practice – the practice of medicine was under no obligation to tolerate Jack Kevorkian’s “conscientious” killings.

 Yet we close with our own appeal to consensus: “In conclusion, unless and until consensus is forged regarding the ends of medicine, refusals of controversial practices cannot be shown to violate physicians’ professional obligations. In the meantime, the practice of medicine should be open to anyone willing to commit themselves unreservedly to caring for those who are sick so as to preserve and restore their health.”

And Phil responds: Why should consensus about the ends of medicine matter, given their argument emphasizing an objective standard for the medical profession?

We perhaps could have been clearer, but the thought is this: consensus is necessary to some degree for anything to happen in any profession, and is required to some degree for norms to be established within the profession. And a lack of consensus on important matters suggests that there is work to be done within the profession, that its house is in disarray. How is that consensus to be gained? We have an answer: focus on the ends of medicine: that is where we need consensus, even more than on this or that procedure.

We think that approach has two advantages: first, it seems to us that many physicians do know, to varying degrees of explicitness and ability to articulate, that medicine is for the sake of health. So that focus is perhaps able to generate the needed consensus, though I think there are no guarantees (see my early response to David about what might happen to the medical profession). Second, becoming clearer about the end of medicine – or even about the plausible contenders to be the end of medicine – makes it clear that the location of the relevant controversy, over abortion, PAS, euthanasia, and certain other surgical interventions, occurs within the space of a reasonable claim about that end. I think this can be helpful for generating sufficient pluralism within the profession to allow defenders of the Way of Medicine to continue to practice. But if the practice of medicine moves too far away from our account, I seriously doubt such pluralism will be sustainable or sustained.

These were fantastic comments, from you all and I know I have not done them anything like justice. I hope you’ll take a look at the book, which drops on August 15^th. Thanks for the opportunity to respond!