Bernard Gert Dartmouth College An ethical theory should make explicit, explain, and, if possible, justify morality or the moral system. It must provide an explicit account of common morality, including its limitations. This account of morality should be given in terms that everyone can understand and, given sufficient information about the situation, use in coming to a decision or in making a judgment. It should also make clear that although morality does not always provide a unique right answer to every question, it always provides limits to the range of morally acceptable answers. None of the standard moral theories provide anything close to an adequate account of common morality. Even the best of these theories, including those of Hobbes, Kant, and Mill, provide only a misleading schema of the moral system that is commonly used. Unfortunately they are not even completely clear about the distinction between their account of this common morality and their attempt to justify it. No one seriously holds that any of these theories will settle any of the controversial issues in bioethics such as abortion, physician assisted suicide, genetic testing, or gene therapy, not to mention the particular problems that arise in actual medical practice. The most that is done is to mention some slogans like autonomy or respect for persons, do no harm, justice or treating people fairly, and beneficence or doing good, as justifying one’s decision or judgment. These slogans have even been combined in "principlism," which provides what passes for an ethical theory in bioethics. One reason for the irrelevance of most ethical theories in bioethics is that the solution to most actual particular problems is determined by the facts of the case. There is often no dispute about anything to which a moral theory would provide a solution, or even be of any assistance. Once the facts, including prognoses, are known and agreed upon, there is often complete agreement about what should be done. The common claim that we agree on facts, but disagree on values, is wrong in almost all real cases. Most moral theories are equally useless in dealing with controversial issues, because these controversial issues have no unique correct solution, and the theories provide no explanation of why the disagreement is unresolvable. These controversial issues are usually such that equally informed, impartial, rational persons not only can, but do disagree about what should be done. Most moral theories do not allow for such disagreement, and even those that do, do not have the resources to explain the source of the disagreement. Partly this is due to the fact that most moral theories have not availed themselves of the resources of common morality. Indeed, many so-called moral theories are not even attempts to explain or justify common morality, but are used to generate guides to conduct intended to replace common morality. These proposed guides, those generated by most of the standard consequentialist, contractarian, and deontological theories, are far simpler than the common moral system and sometimes yield totally unacceptable answers to moral problems. Common morality does not provide unique answers to every moral question, but almost all moral theories generate codes that do provide unique answers to every question. This is one reason why those philosophers who put forward these theories have usually dismissed common morality as confused. This is also why those who take morality seriously, including many who do medical ethics, do not regard moral theory as having any practical value. I take common morality very seriously. My moral theory begins with a detailed description of the common moral system. Although it does not provide all of the details, it provides a sufficient amount of detail to be of use in dealing with actual moral problems that arise in medical practice. Although most actual moral problems do not involve more than finding out all the relevant facts, my moral theory helps to identify which facts are morally relevant. The primary use of a moral theory is not to provide a solution to controversial problems, but to clarify how actions should be described. The usefulness of a moral theory is in providing a framework for describing actions. My explicit account of common morality, in which I list the moral rules, the moral ideals, and the morally relevant features that are part of the two-step procedure for determining whether a violation of a moral rule is justified, serves as such a framework.1 This framework can actually be of some help in providing the morally appropriate description of an action. The Moral Rules The moral rules that I list are a universally accepted part of common morality. They merely state the simple kinds of actions that are prohibited or required, unless there is an adequate justification if the prohibited action is done, or the required action is not done. The two-step procedure for justifying a violation of a moral rule makes explicit what is involved in providing an adequate justification. It makes clear what is meant by the requirement of common morality that the moral rules must be obeyed impartially. The rules are not normally used to resolve moral problems, rather they are most useful in determining whether one needs to be concerned about doing, or not doing, a particular action. If the action is appropriately described as a violation of one of these rules, then a justification is needed, if the action is not appropriately described in this way, no justification is needed. The following is a list of the moral rules.
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1. Do not kill. |
6. Do not deceive. |
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2. Do not cause pain. |
7. Keep your promises. |
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3. Do not disable. |
8. Do not cheat. |
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4. Do not deprive of freedom. |
9. Obey the law. |
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5. Do not deprive of pleasure. |
10. Do your duty. |
These rules are understood by all to prohibit not only actual violations, but also attempts to violate them, even if the attempt is unsuccessful. They are also understood to prohibit not only intentional violations, but also violations done knowingly but not intentionally. They even prohibit some unknowing violations. However, as will be apparent in the discussion of the two cases on which I will concentrate, these rules are in need of some interpretation. "Do not kill" does not mean simply do not do any act that has the result that someone dies. "Do not deprive of freedom" does not mean simply do not do any act that has the result that someone does not have the freedom or opportunity to do something he would have had if you had not done that act. If, in the normal course of affairs, you arrive at a parking lot before another person, you do not deprive him of the opportunity to park in that lot if you take the last parking place. You do not need to justify doing that. Knowing about the practices of a particular field or profession, especially the duties involved, is sometimes necessary to provide the proper interpretation of the rule. Furthermore, it is knowledge of the field or profession, not knowledge of moral theory, that is essential for determining the duties that are involved. These duties are not derived from a moral theor y, but from the history and practice of the profession. The Moral Ideals The moral ideals have the same point as the moral rules, to lessen the amount of harm suffered. Whereas the moral rules seek to lessen the amount of harm by prohibiting those actions that cause harm or increase the likelihood of harm being suffered, the moral ideals directly encourage the lessening of harm. Some moral ideals can be formulated in a way that parallels the formulations of the moral rules. The following is a list of such ideals.
Prevent killing. 6. Prevent deception. Prevent causing pain. 7. Prevent breaking of Prevent disabling. promises. Prevent deprivation of 8. Prevent cheating. freedom. 9. Prevent disobedience Prevent deprivation of to the law. pleasure. 10. Prevent neglect of duty.
The most important moral ideals, however, deal directly with the harms the moral rules prohibit causing. "Prevent avoidable death," "Prevent or relieve pain." "Prevent or relieve disability," "Prevent or relieve loss of freedom." and "Prevent or relieve loss of pleasure. The first three of these ideals seem to constitute the primary goals of medicine, so it is no surprise that practicing medicine is regarded as following the moral ideals. No one doubts that as long as no moral is rule is violated, morality encourages following these ideals. Following these ideals sometimes even justifies violating a moral rule. Whether it does so, depends on the morally relevant features of the violation and estimates of both the consequences of ever yone knowing that a violation with these features is allowed and the consequences of everyone knowing that it is not allowed Describing the Kind of Act Involved The serious work of bioethics is framing the problem so that the moral system can apply to it. A moral theory should contain an explicit formulation of the framework to be used in providing the appropriate description of an action. If the case is described in the appropriate way, applying the rest of the moral system is relatively simple. Once the appropriate description of the action has been determined, then either everyone agrees that it should be done, or not be done, or there is a further disagreement. If this disagreement is based on a disagreement about the facts, then the moral theory does no further work. If the disagreement is not due to a disagreement about the facts, including probabilities, and if it is determined that a moral rule has been broken, then a moral theory can be of some use. However, usually not in the way those putting forward moral theories think. A moral theory is best used to assure the contending parties that they are both holding acceptable moral views, and to explain the source of their unresolvable moral disagreement, rather than being used to resolve the dispute. I was initially surprised that the part of my theory that physicians took to be most helpful was the list of morally relevant features. They regard the list as useful because it makes explicit what facts are relevant to their decision-making. Everyone knew that finding out the facts was important, but there had been no previous explicit account of how to determine which facts were morally relevant. The morally relevant features not only make explicit which facts are morally relevant, but by providing a description of the kind of act to be publicly allowed, they also make clear why these facts are relevant.
Morally Relevant Features A morally relevant feature of a moral rule violation is a feature that if changed could change whether some impartial rational person would publicly allow that violation. All morally relevant features are answers to the following ten questions.
Which moral rule is being violated? Which harms are being caused, avoided (not caused), and prevented by the violation? What are the relevant desires and beliefs of the person toward whom the rule is being violated? Is the relationship between the person violating the rule and the person(s) toward whom the rule is being violated such that the former has a duty to violate moral rules with regard to the latter independent of their consent? Which goods are being promoted by the violation? Is the rule being violated toward a person in order to prevent her from violating a moral rule when the violation would be (1) unjustified or (2) weakly justified? Is the rule being violated toward a person because he has violated a moral rule (1) unjustifiably, or (2) with a weak justification? Are there any alternative actions or policies that would be preferable? Is the violation being done intentionally or only knowingly? Is the situation an emergency such that no person is likely to plan to be in that kind of situation?
Once one has described the situation using only those facts that are answers to these questions, then the second step of the two-step procedure is to estimate the consequences of everyone knowing that they are allowed to break the rule in those circumstances, and of ever yone knowing that they are not allowed to break the rule in those circumstances. The two-step procedure is (1) describe the act solely in terms of its morally relevant features, then (2) estimate the consequences of everyone knowing that they are allowed to break the rule in those circumstances and everyone knowing that they are not allowed to break the rule in those circumstances. The outcome of this two-step procedure determines whether one would be willing for everyone to know that they are allowed to break the rule in those circumstances. This does not presuppose that all equally informed impartial rational persons would decide in the same way. It is important to realize that equally informed impartial rational persons, besides disagreeing on the interpretation of the rules, can disagree on (1) the scope of morality, who beyond other moral agents are protected by the moral rules, either fully or partially; (2) the rankings of the various evils involved; and (3) ideological views, such as their views about human nature that affect what they think will happen if everyone were to know that they are allowed to break the rule in those circumstances. Realizing that disagreements on these issues do not mean that either party to the dispute must be ignorant of some facts, partial, or irrational, results in that kind of productive attempts at compromise that most moral theories discourage. Bioethics does present a serious challenge to all of the traditional moral theories, including consequentialist, deontological, contractarian, virtue theories, and others. None of these moral theories provides more than a schematic outline of our common morality. They are not only useless in making moral decisions and judgments, they are actually harmful insofar as they encourage persons to think that all controversial issues can be settled by use of the theor y. A detailed description of common morality focuses attention on the relevant facts. Also, contrary to traditional moral theories, a moral theory that emphasizes that there are not always unique correct answers to controversial moral questions, promotes moral tolerance, that is, helps all parties to a dispute realize that there is often more than one morally acceptable answer. Making this point explicit promotes fruitful discussion that may result in a compromise that will be acceptable to all the parties concerned. Failing that, it allows subordinates or those in the minority, to accept the decision of the person in charge, or the majority, without feeling that in going along with the decision they have sacrificed their moral integrity. Two Examples I will provide two examples of how moral theory and bioethics work together. Both examples started as individual cases, but the first can be considered on the general level without even mentioning the details of the particular case. The question is whether taking a competent ventilator-dependent patient off of the ventilator in response to his rational refusal to continue, counts as killing him or even assisting his suicide.2 The decision in this case has some important implications for the controversial policy issue concerning the legalizing of physician-assisted suicide. The question in the second example is when not providing a patient with some information counts as deceptive withholding. This is a slightly altered version of an actual problem that was considered by an ethics committee. It, too, has general implications, but unlike the first example, the particular details of the case are crucial, and so the details must be given. Both examples require knowing what the duties of doctors are, because this knowledge is important in deciding how to interpret a moral rule. The first example involves interpreting what counts as violating the rule prohibiting killing; the second involves interpreting what counts as violating the rule prohibiting deceiving.
Killing Versus Allowing to Die In distinguishing killing from allowing to die, it is necessary to determine whether a physician has a duty to prolong the lives of competent patients who rationally prefer to die. Although it is tempting to claim that the question of whether physicians have this kind of duty can be determined by philosophical reasoning, it is more plausible to hold that it requires knowledge of the practice of medicine. On the basis of the current practice in this country, it seems clear that physicians do not have a duty to prolong the lives of patients who rationally prefer to die. The next issue is whether not treating such patients counts as killing them. If not treating is killing, then not treating must itself be justified, for it involves killing, perhaps the most serious violation of a moral rule. If not treating is taken as simply failing to follow the moral ideal of prolonging life in the circumstances of a competent patient’s rational refusal, then it does not have to be justified. Indeed, following this moral ideal when a competent patient has refused treatment would not justify breaking the moral rule against depriving of freedom.3 Not treating is sometimes correctly regarded as killing. If a physician turns off the respirator of a competent patient who does not want to die, with the result that the patient dies, the physician has killed him. In the same circumstances, the physician has killed the patient if she discontinues antibiotics or food and fluids. It even counts as killing if the physician refuses to start any of these treatments for her patient when the patient wants the treatment and there is no medical reason for not starting it. Just as parents whose children die from not being fed can be regarded as having killed their children, physicians who have a duty to provide life-saving treatment for their patients can be regarded as killing them when they do not provide that treatment. However, a physician does not have a duty to provide life-saving treatment for a competent patient who rationally refuses such treatment. Not treating counts as killing only when there is a duty to treat. In the absence of such a duty, not treating does not count as killing. If a competent patient refuses treatment and there is no duty to treat, then it does not make any moral difference whether the physician stops treating by an act, e.g., turning off the respirator, or an omission, e.g., not giving antibiotics. It also makes no moral difference whether the physician stops some treatment that has already started, e.g., turning off the respirator or discontinuing antibiotics, or simply does not start such treatment. Granted that it may be psychologically easier to omit rather than act and not to start than to stop, nevertheless, there is no moral difference between these different ways of abiding by a patient’s refusal. Similarly, it makes no moral difference whether the treatment is extraordinary, e.g., involving some elaborate technology, or is quite ordinar y, e.g., simply providing food and fluids, or whether or not the death is due to natural causes. If there is no duty to treat, not treating is not killing. If a competent patient rationally refuses treatment, there is no duty to treat. Therefore, if a competent patient rationally refuses treatment, abiding by that refusal is not killing. Further, since the refusal is rational, it is, in fact, morally prohibited to override the patient’s refusal by treating, and to do so is an unjustified deprivation of the patient’s freedom. 4 It might be objected that the analysis given above does not apply to providing food and fluids because providing food and fluids is not a treatment, and so failing to provide food and fluids is not merely not treating, it is killing. As noted before, children who die because their parents do not feed them are correctly regarded as having been killed by their parents. Similarly, it may objected, patients who die because their physicians do not provide them with food and fluids are killed by them. This objection is based on the mistaken view that the issue turns on the concept of treatment. Parents have a duty to feed their children, that is why not feeding them counts as killing. Physicians have no duty to overrule rational refusals by competent patients, so their not doing anything to prolong the life of these patients, including not providing them with food and fluids, does not count as killing. When a patient wants not to be kept alive and it is rational to want not to be kept alive, then it is morally required that a physician not force the patient to keep living. However, a physician should continue to provide comfort and palliative care. Contrary to what is widely assumed, dying because of lack of food and fluids is not painful when there is even minimal nursing care.5 When no medical treatment is keeping the patient alive, stopping food and fluids may sometimes be the only way of allowing a patient to die. This kind of dying process is usually painless; it takes long enough for the patient to have the opportunity to change his mind, but it is short enough to provide significant relief from pain and suffering. Actually, death usually comes earlier than with any of the current proposals for physician-assisted suicide. Furthermore, stopping food and fluids is compatible with all palliative care, including permanent sedation. Recognizing that abiding by the rational refusal of treatment, or of food and fluids, by a competent patient is not killing, but, at most, allowing to die, solves most of the practical problems with passive euthanasia that have led many to recommend legalizing physician-assisted suicide or active euthanasia.
Analysis of Killing Some people consider abiding by a patient’s refusal of treatment when it requires the physician to perform some identifiable act, such as turning off a respirator that results in the patient’s death, as the doctor having killed the patient. This seems to have the support of the Oxford English Dictionary that says that to kill is simply to deprive of life. That the doctor is morally and legally required to turn off the respirator, one might argue, justifies her killing the patient, but it does not mean that she has not killed him. Even those who accept the death penalty, and hold that some prison official is morally and legally required to execute the prisoner, do not deny that the official has killed the prisoner. Killing in self defense is both morally and legally allowed, yet no one denies that it is killing. Similarly, one could agree that the doctor is doing nothing morally or legally unacceptable by turning off the respirator, even that the doctor is morally and legally required to turn off the respirator, yet claim that in doing so the doctor is killing the patient. If this analogy is accepted, then it might even seem plausible to say that an identifiable decision to omit a life-prolonging treatment, even if such an omission is morally and legally required, also counts as killing the patient. Why not simply stipulate that doctors are morally and legally required to kill their patients when their action or omission is the result of a competent patient rationally refusing to start or to continue a life prolonging treatment? Isn’t the important point that the doctor is morally and legally required to act as she does, not whether what she does is appropriately called killing? However, having a too simple account of killing could cause numerous problems. Although a doctor is morally and legally required to abide by a rational refusal, it is still significant to determine whether such an action should be regarded as killing. Many doctors do not want to regard themselves as killing their patients, even justifiably killing them. More importantly, all killing requires a justification or an excuse. When all the morally relevant features are the same, the justification or excuse that is adequate for one way of killing will be adequate for all other ways of killing as well.6 Thus, if a justification is not publicly allowed by all for other ways of killing, e.g., injecting a lethal dose of morphine, then it will not be publicly allowed by all for this way of killing, disconnecting the patient from the respirator. This means that if it is justifiable to prohibit physicians from granting a competent patient’s rational request to be killed by lethal injection, it should also be justifiable to prohibit physicians from killing competent patients by abiding by their rational refusals of life-sustaining treatments. Furthermore, since almost no one, including supporters of active euthanasia, propose that doctors should ever be morally and legally required to kill their patients, doctors would not be morally and legally required to abide by rational refusals of treatment by competent patients. Unless one favors such restrictions on patients’ ability to hasten their death by refusing life prolonging procedures, changing the way killing is understood, i.e., counting abiding by a patient’s rational refusal as killing him, would have significant risks. Almost none of those who favor legalizing active euthanasia want to require doctors to kill their patients; they merely want to allow those doctors who are willing to kill, to do so. Similarly, for physician-assisted suicide, no one suggests that a doctor be required to comply with a patient’s request for a prescription for lethal pills. Since doctors are morally and legally required to abide by a competent patient’s rational refusal of life-sustaining treatment, abiding by such a refusal is not regarded as killing, or even assisting suicide. Providing a patient who refuses life-sustaining treatment with palliative care is not controversial either. Although some physicians feel u