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  please see attachments  below for guidance to complete this  discussion assignment. I have attached    

Practical Decision Making in Health Care Ethics: Chapter 3 and will be adding chp 13,14  to help complete this assignment.

Compare and contrast the position of Devettere in chapter 3 on “Intentionally Causing Death and Letting Die,” and Kelly’s treatment of “Forgoing Treatment, Pillar Two: Killing and Allowing to Die,” found in chapter 14 of his text. Also, compare and contrast the position of Devettere on the use of the ordinary/extraordinary means in preserving life with that of Kelly in chapter 13 of his text. How has Kelly helped you understand the application of each distinction in medical ethics?

THREE The Language of Health Care Ethics WE USE LANGUAGE in many different ways. Some sentences state facts, others ask questions, tions, and still others give commands. Our words may be simple descriptions, or they may change our lives. The man who says “I do” when someone asks him whether he likes ice cream is simply reporting a preference, but the man who says “I do” when asked whether he takes a woman as his wife is, if the consent is mutual, making a marriage. The meaning of language depends to a great extent on what is going on when the language is used. We have to know the “language game,” as the philosopher Ludwig Wittgenstein put it, to know what words and sentences mean. For example, normally we think stealing is immoral and shameful, yet we are delighted when a member of our team steals second base. One important use of language is classifying and distinguishing the realities we encounter. When classifications and distinctions bring order and clarity to the expression of our thoughts, they can be very helpful. Yet classifications and distinctions can become a source of mischief and sometimes mislead us. In health care ethics, this can happen in two ways. First, some well-established classifications and distinctions are not always suitable for newly developed techniques and technologies, yet we continue to use them. Instead of recognizing the newness and originality of recent developments, we force or shoehorn them into traditional classifications fications and distinctions. This distorts our descriptions of them, and the distortions undermine our moral deliberations and judgments. The confusion that results fromusing traditional classifications for new procedures can be seen readily in the following example. When long-term nourishment by feeding tubes became a reality not so long ago, there were two ways people could classify it. They could say feeding tubes were (i) a way of feeding people or (2) a medical treatment. Neither classification is really fitting. Inserting nutrition and fluids through a tube running into the stomach through the nasal passages or surgically inserted through the abdominal wall is not what we call feeding in any ordinary meaning of the term. Nor is it a typical medical treatment, because it does not provide medicine or medication but what everyone, sick or healthy, needs for life-nutrition and fluids. These techniques niques are too much like treatment to be classified as feeding, but too much like feeding to be classified as treatment. For purposes of moral deliberation, nourishing people by feeding tubes is better understood and classified as a new category of action. Worse than the misleading classification of new techniques and technologies is the tendency to substitute distinctions for moral reasoning. For example, some use the distinction between ordinary nary treatment and extraordinary treatment to justify a moral judgment. They claim that (r) the refusal of an ordinary treatment such as an antibiotic for an infection is never morally justified, whereas (2) the refusal of an extraordinary treatment such as an artificial heart is morally justified. This looks like moral reasoning, but it really is not. Proponents have simply made a distinction between ordinary treatment and extraordinary treatment and then claimed that the former is always morally obligatory but not the latter. Sometimes poorly classifying a new technique or technology, or substituting a distinction for authentic moral reasoning, is unintentional and harmless. The process looks like legitimate reasoning soning and is carelessly accepted as such, but no great harm is done because the conclusion happens to be morally sound.Sometimes, however, poorly classifying things or substituting distinctions for reasoning is not unintentional and harmless. People may deliberately employ poor classifications and substitute distinctions for reasoning in order to avoid authentic discussion about issues on which they have already taken a firm position. They do not use classifications and distinctions to clarify a subject but, rather, to convince an audience. People tend to do this when their minds are already made up. Ideologues have nothing to gain from careful classifications and thoughtful distinctions in controversial moral matters. Ideologues logues are not about to change their minds for any reason. They believe there is nothing to figure out-they already have the right answer. If withdrawing a feeding tube undermines their commitment ment to the right to life, they will classify it as feeding and insist that patients must always be fed. If withholding antibiotics undermines their conception of the value of human life, they will make a distinction between ordinary and extraordinary treatment, call antibiotics “ordinary treatment,” and conclude that they cannot be withheld. All attempts to show these people that using feeding tubes to keep permanently unconscious patients alive for decades is not reasonable and therefore not morally obligatory fall on deaf ears. A classification has become an ideology: “Feeding tubes feed, and if we do not feed those who cannot feed themselves, they starve to death, and that is wrong.” Similarly, attempts to show that using antibiotics to reverse the pneumonia of a ninety-year-old man dying in discomfort of metastasized cancer is not reasonable, and therefore not morally obligatory, fail. A distinction has become an ideology: “Antibiotics are simple, inexpensive, painless, and ordinary treatment, and we are not according human life its proper value if we fail to use ordinary means to preserve

This chapter will first call attention to several distinctions that often cause confusion in the reasoning and debates about health care ethics and then will note several other distinctions that can be helpful in our prudential reasoning. DISTINCTIONS THAT CAN MISLEAD The following distinctions need to be used with exceptional care or not at all because their use so often hinders good prudential reasoning. Actions and Omissions The distinction between action and omission, doing something and not doing something, is certainly tainly valid. I can take my medicine or not take it; I can treat or not treat a patient. The distinction between action and omission, however, can easily mislead us in ethics. A major problem arises when the distinction is used in situations in which the foreseen outcome is not wanted or desired, and a distinction is made between actions and omissions giving rise to the unwanted outcome. For example, the unwanted outcome of removing life-support equipment is the patient’s death. Since many people believe that it is immoral to perform an action leading to the patient’s death, they think of what will be done as an omission, the omission of technology needed to support life. This enables them to claim that they are not performing an action leading to death; they are simply omitting inappropriate treatment. Using the action-omission distinction this way obviously twists language in an unacceptable manner. The action of removing life-support equipment is just that-an action. It is not an omission. sion. Twisting language this way is objectionable because it undermines moral reasoning. We cannot reason well if our language is distorted. Using the action-omission distinction this way also camouflages an important moral consideration. eration. The unspoken assumption behind using the action-omission distinction is often the belief that omissions contributing to a death are easier to justify morally than actions contributing to a death. Sometimes this is true, but not always. Omissions can be as immoral as actions. Not doing something we should do is as morally significant as doing something we should not do. Some actions are ethical, and some are not; some omissions are ethical, and some are not. The danger is that making a distinction between action and omission can blind us to the fact that omissions can be as immoral as actions. Unless we see this, we will not properly consider ourselves morally responsible for the foreseen bad outcomes that follow our omissions. In health care ethics the basic action-omission distinction appears in two widespread formulations: lations: the distinction between withdrawing and withholding treatment, and the distinction between intentionally causing death and letting die (or permitting a person to die). We need to say a few words about each. Withdrawing and Withholding Treatment There are two major problems associated with this distinction. First, the distinction between withdrawing drawing and withholding treatment is not always clear. It is not clear, for example, in situations in which we stop treatment by withholding the next step. If we interrupt a series of discrete chemotherapy therapy treatments (one today, one tomorrow, and so on), we could say either that we are withdrawing drawing the chemotherapy treatment or that we are withholding the remaining treatments. The same can be said of discrete dialysis treatments. And some have claimed we do not really withdraw medical nutrition-we simply withhold the next drop in the tube or line.At other times of course, the distinction between withholding and withdrawing treatment is clear. One example is the distinction between not connecting a patient to a ventilator and disconnecting the ventilator. Even when the distinction is clear, however, it is not really relevant for making a moral judgment. Both withdrawal and withholding are moral in some situations and immoral in others. Second, the distinction between withholding and withdrawing treatment can distort our moral judgment. A widespread conviction, for example, holds that it is more difficult to justify withdrawing treatment than withholding it. Psychologically of course, it is more difficult to withdraw than to withhold life-sustaining treatment from a patient, especially when he will die moments after the withdrawal. But this does not mean that it is more difficult to establish the moral justification of withdrawal than to establish the moral justification

At other times of course, the distinction between withholding and withdrawing treatment is clear. One example is the distinction between not connecting a patient to a ventilator and disconnecting necting the ventilator. Even when the distinction is clear, however, it is not really relevant for making a moral judgment. Both withdrawal and withholding are moral in some situations and immoral in others. Second, the distinction between withholding and withdrawing treatment can distort our moral judgment. A widespread conviction, for example, holds that it is more difficult to justify withdrawing treatment than withholding it. Psychologically of course, it is more difficult to withdraw draw than to withhold life-sustaining treatment from a patient, especially when he will die moments after the withdrawal. But this does not mean that it is more difficult to establish the moral justification of withdrawal than to establish the moral justification of withholding. Actually, withdrawal of treatment is often easier to justify morally than withholding it in the first place. This is so because in questions of withdrawal we have important information that we do not have in cases of withholding, namely, we know how the therapy actually affects the patient’s condition. Moral judgments require the best possible information, and we have better information when we are actually using the treatment than when we have not yet tried it. The added information tion we have from using a treatment puts us in a better position to make a good moral decision about its benefits and burdens. Failure to acknowledge the advantage we have in making decisions about treatment withdrawal drawal can lead to unfortunate consequences. For example, if providers think it is morally more difficult to justify withdrawing a ventilator than withholding it, they may not begin the ventilation when they are unsure of its medical value for fear that once they start it, they can not stop it.This means a patient who could have benefited from the ventilator will not have the chance to benefit from it. Again, if providers think it is morally more difficult to justify withdrawing a ventilator than withholding it, they may not withdraw a ventilator that they never would have started in the first place if they had known it would be so burdensome. This means a patient who is unreasonably burdened by a ventilator will be left on it. Intentionally Causing Death and Letting Die This is the most sensitive variation of the distinction between action and omission. From childhood we are taught “Do not kill.” Later most of us learn to accept the morality of exceptions, most notably killing as a last resort in self-defense or killing enemy soldiers in what is traditionally called just warfare. And many people also make an exception for the killing in legal executions. But a long tradition of medical ethics going back to the Hippocratic writings condemns the killing of patients by physicians. There were always challenges to this tradition, and today, as we will see in chapter 13 on euthanasia and assisted suicide, these challenges are stronger than ever in recent history. Nonetheless, less, the American Medical Association’s (AMA) ethical guidelines continue to say that “the physician cian should not intentionally cause death.” What the guidelines mean is clear-the AMA is opposed to physicians giving lethal injections-but the language is misleading. It forces physicians to think of behaviors with a causal impact on a patient’s death as if they were not causal in any way. Thus, some describe the action of removing life-support equipment as “letting die” and maintain tain that the disease, not the life-support removal, is the only cause of death. Sometimes the distinction between intentionally causing death and letting die (or, to put it another way, between causing death and letting the disease cause death) is clear. If I intentionally give a lethal injection, I cause death, and if I do not attempt CPR, I am letting the person in cardiac arrest die. But frequently the distinction between intentionally causing death and letting die is not clear because the providers’ actions play a definite causal role in patients’ deaths. Consider the following behaviors. i. Physician gives a lethal injection to the patient. 2. Physician assists a patient with suicide. 3. Physician gives a dying patient medication needed for pain relief although the drugs will hasten death. 4. Physician withdraws nutrition and hydration through tubes or lines. 5. Physician withdraws needed5. Physician withdraws needed life-sustaining equipment.

Physician withholds nutrition or life-sustaining treatment. The first five behaviors all involve causal impact on the death of the patient. The causal impact is strongest in the first behavior and weakest in the fourth and fifth. Only the sixth behavior makes no causal contribution to death. Withholding nutrition and treatment is the only real case of letting die on the list. In every other situation the provider’s actions have a causal impact on the patient’s death. The distinction between intentionally causing death and letting die is too simplified to serve as a substitute for moral reasoning. It is disingenuous to ignore the causal impact, for example, of withdrawing a ventilator from someone who will die without it. We would have no trouble acknowledging that a stranger walking into an ICU and withdrawing a ventilator causes the patient’s death. Yet if a physician withdraws the same ventilator, some want to pretend that the action plays no causal role in the patient’s death. They claim that the physician is only “letting the patient die.” What is really happening when a ventilator is removed from a person needing it, of course, is that both the disease and the withdrawal are causes of death, but neither alone is a sufficient cause of death. For death to occur at this time, the disease must be making it impossible for the patient to live without the ventilator and someone must remove or shut off the ventilator. Sound moral analysis will admit that the physician’s action has a causal impact on the patient’s death at this time and then go on to ask whether the withdrawal of the ventilator is morally reasonable in the circumstances. Paternalism and Autonomy The distinction between paternalism and autonomy rests on where we place the power of authorizing izing medical treatment and on how we perceive the relationship between what the physician thinks is good for the patient and what the patient wants. In general the older medical tradition made physicians the authorities and made the paramount moral value doing good for, or at least no harm to, patients. This tradition argued that the physician knows more than the patient and has more experience and that the patient’s ability to think clearly and to choose rationally is often undermined by the illness. Hence, it made sense to say that the physician should do what he thought was best for the patient. The relationship between physician and patient thus resembled the relationship between a wise and caring father and his child. When the physician acts like a caring father toward a patient, who is a beginner or a child in the world of medicine, we call it paternalism. The physician-father knows best, and the patient-child is expected to follow doctor’s orders. Some claim that the Hippocratic Oath, a cornerstone of medical ethics for centuries, is one of the sources of this medical paternalism. This oath is thought to have originated around the fourth century B.C.E. among a group of Greek-speaking people, the Pythagoreans, who flourished for a time in southern Italy, then a part of the Greek world. These followers of Pythagoras (known to every high school student as the discoverer of the geometric theorem that bears his name) formed a distinct social group with shared religious, philosophical, and moral beliefs. Most people of that era did not share those beliefs, and thus the Hippocratic Oath represents the views of a small and somewhat idiosyncratic group in the classical world. The physician taking the oath says he will take measures “for the benefit of the sick according to my ability and judgment.” This does suggest medical paternalism, especially since there is no mention of any judgment by the patient. The oath also says that the physician will not provide lethal drugs to patients requesting them or give an abortifacient to a woman, but these prohibitions were probably not so much paternalistic as important moral values for the Pythagorean physician, who would have accepted the strong belief of his group in the interconnection and value of all life, human as well as animal. Perhaps an even stronger source of medical paternalism in the tradition was the realization that the power of medical knowledge should be used for good and not for harm. Many people were horrified by the thought that physicians would use their expertise for evil-to devise more exquisite techniques of torture, for example. So the tradition insisted that the physician should always act for the patient’s good and do what he thought was best for the patient. In most cases the physician knew better than the patient what was good for the patient. From this the tradition concluded that, if he really cared abouthis patient, he should simply do what was best for the patient. If this meant doing things without the patient’s knowledge and consent, so be it. The important thing was to do what was good for the patient, and the physician was the authority in determining this. The physician was like a parent, responsible for the well-being being of the patient, and must act accordingly. This commitment to paternal beneficence, to the good of the patient, was one of the great moral values of traditional medicine. Recently, however, all forms of paternalism in our culture have been widely criticized. In the past few centuries various philosophies have arisen that locate the source of decision making more and more in the individual rather than in political or religious authority. Examples of this trend are many and well known. The Lutheran Reformation in Christianity, tianity, for example, encouraged vernacular translations of the Bible so each individual could read and interpret it rather than have church authorities interpret the Latin text. The powerful political theory of John Locke made the right to liberty one of the three basic natural rights, and his theory is a major source of the right to choose and the right to privacy that we hear so much about today. The influential moral philosophy of Immanuel Kant held that the moral law comes not from God, nor from the law of nature, but from ourselves-we are morally autonomous in that we give the universal moral law to ourselves. The popular philosophy called utilitarianism, developed extensively sively in the nineteenth century by John Stuart Mill, stressed liberty and placed minimal limitations on human freedom: we are not free to do things that will harm others or undermine the greatest good for the greatest number. Finally, various existentialist philosophies beginning with Kierkegaard gaard and Nietzsche in the nineteenth century held that choosing and willing, rather than thinking and knowing, are the hallmarks of human existence. Kierkegaard urged individuals to move beyond ethics to what he called a “religious” stage; Nietzsche saw only decadence in existing European morality and encouraged individuals to exercise a will-to-power that would inaugurate a transvaluation tion of all values. Major trends such as these, different as they are from each other, all reinforce a central notion, namely the important value of self-determination and personal choice. Medical paternalism was bound to run into difficulties with the many modern philosophies and theologies of individual choice. The major value is no longer what someone else, even a caring physician, thinks is good but what the patient thinks is good and what the patient chooses. Beneficence cence remains an important value-no patient in his right mind wants anything bad done to him-but the autonomy of the patient has become a crucial value as well. In the language of those who conceive of ethics as a matter of principles, the principle of autonomy has emerged and in some cases has come to dominate the principle of beneficence in health care ethics. The beneficence supporting traditional medical paternalism meant doing good for the patient in a medical sense; that is, it meant trying to achieve a good clinical outcome. It did not really take into account the patient’s personal commitments that might conflict with good clinical care. A classic example of this is the treatment of a Jehovah’s Witness when blood is needed. The physician may know the unconscious patient in the operating room will die without a transfusion and is thus driven by beneficence to give it, but the patient may have insisted for religious reasons that blood not be given. In this case most ethicists, and several important legal decisions, say that respect for the autonomy of the patient should take priority over the beneficence of the physician trying to save the patient’s life. Autonomy, self-determination, and

respect for persons are important notions in medical ethics. Sometimes as in the above example they can clash with the older idea that the doctor should do what is good for her patient. This leads some to think that we must make a choice between medical paternalism and beneficence on the one hand and patient autonomy and self-determination tion on the other. Almost always when the choice is presented this way, it is the paternalism that is rejected. Now things are changing again. In the past few years ethicists have been moving away from the language of autonomy as they recognize that patients, especially very sick or elderly patients, are really not that autonomous. Moreover, some patients and proxies have misused autonomy and self-determination to demand medically inappropriate treatments. This places physicians in a difficult ficult position. No physician wants to order inappropriate medical treatments simply because his patient or the patient’s proxy wants them. The choice forced by the distinction between paternalism and autonomy, however, is not helpful, and that is why the distinction is best avoided. Both paternalism and patient self-determination nation reflect important values in a rich ethic of health care. The driving force of paternalism is doing good for the patient, and the driving force of self-determination is the recognition that patients remain persons who cannot be disenfranchised of the responsibility and freedom to make important personal choices in life. There is no need to distinguish between paternalism and autonomy and to prefer one over the other. Given the physician’s experience and knowledge, and a lack of the same in most patients, and given the way in which disease makes it difficult for patients to remain in control of their lives, a paternal (or maternal) attitude has its place in medicine and health care. And given the importance tance of respecting the personal commitments of patients who see the world differentlyfrom the physician, autonomy or self-determination also has its place. The ideal will be to maintain the best of both paternalism and self-determination, and the most promising way to do this is to have the physician and the patient share the decision making. This avoids having the physician behave like a parent with his child. It also avoids reducing the physician to a hired hand ordered around by a patient autonomously authorizing his or her medical treatment in such a way that the physician no longer exercises professional judgment but simply carries out the patient’s decisions. It is important to avoid considering the physician’s paternalism morally suspect and the patient’s autonomous decisions morally acceptable. It is not this simple. In some situations paternalism nalism can be justified, and in some situations the decision of the patient is simply immoral. The fact that a patient exercises her right to choose what will be done to her body does not thereby justify the morality of what she chooses. It is not enough to say, “This is what the patient wants; therefore, this is the right thing to do.” The test of the right thing to do is whether what is done achieves the truly good, not whether the patient autonomously chooses it. Important as autonomy or self-determination is, it is not a criterion of what is morally right. Ordinary and Extraordinary Means of Preserving Life This distinction has been losing the popularity it once enjoyed. It originated several centuries ago in Roman Catholic moral theology, and, when medical treatments were much simpler, it served a useful purpose. It has been kept alive by a number of landmark court cases where judges described respirators and tubal feeding as extraordinary and then used that description in justifying withdrawal. drawal. The New Jersey Supreme Court, for example, described Karen Quinlan’s respirator as extraordinary treatment, and the Massachusetts Supreme Judicial Court found that Joseph Saikewicz’s wicz’s chemotherapy and Paul Brophy’s tubal feeding were extraordinary. These courts then allowed medical personnel to honor requests of proxies for the patients to forgo the life-sustaining treatments. The fundamental idea behind the distinction between ordinary and extraordinary treatment is this: Although human life is an important value, ethics does not require people to use extraordinary nary means to preserve it. Hence, if a patient chooses to forgo extraordinary treatment, providers withholding or withdrawing that treatment are acting morally even if death follows. On the other hand, the patient’s decision to forgo so-called ordinary treatment is not morally justified. There are several problems with this approach. The first is now familiar-the temptation to rely on a distinction instead of moral deliberation and reasoning to determine what is morally good behavior. The second problem centers on just what we are to consider extraordinary life-sustaining treatment. Those supporting the value of the distinction speak of treatment that is very expensive, or unusual, or very painful, or very risky, or highly technological. Sometimes it is easy to use these notions. Most everyone would agree that a heart transplant is, at least at the present time, extraordinary. But in many other situations the distinction is simply not clear. The courts have considered respirators extraordinary, but many people would consider a respirator in an operating room or in an intensive care unit quite ordinary. And the courts have considered long-term use of a feeding tube for an unconscious person not expected to recover an extraordinary treatment, but many people consider nutrition supplied by a simple tube an ordinary means of nutritional support. Because there is no way to provide a satisfactory definition of extraordinary treatment in modern medicine, the distinction is not helpful and, in fact, can be misleading. If used instead of moral reasoning, for example, it would require us to give ordinary antibiotics to fight the pneumonia monia of an elderly dialysis patient on a ventilator and dying of painful cancer. The distinction between ordinary and extraordinary means of preserving life, no less than the others we have considered, is no substitute for the prudential reasoning and moral reflection we need to determine what achieves the human good in any situation. Futile Treatment and Effective Treatment Futile treatment was not a problem until recently. When physicians were the sole decision makers, there was no futile treatment-if the physician thought a treatment was futile, he would never provide it. The recent upsurge of patient autonomy and self-determination has created the problem of futile treatment. At first this trend toward patientautonomy and self-determination centered on the patient’s right to refuse treatments, but now the other side is beginning to show itself. Patients or their proxies are demanding treatment, and sometimes the providers are convinced the treatment they demand is futile or useless. This presents a problem for providers. If they honor the patient’s request for treatment they believe is inappropriate, they act contrary to their professional judgment. Sometimes they can transfer the patient to other providers, but sometimes they cannot, and this leaves them in a difficult cult position. Parents, for example, have demanded painful treatments for their children that providers viders believed were medically useless. This is upsetting for providers because they are being asked to do something that causes suffering for their patient but which they perceive as providing no benefit. To resolve this difficulty, some now propose a new distinction: futile treatment and effective treatment. They would like to use the distinction to justify morally a physician’s refusal to supply inappropriate medical treatments demanded by a patient or a proxy. The idea is simple: once the treatment is deemed futile, providers have no obligation to provide it even if the patient or proxy wants it. In fact, some argue that there is a moral obligation not to provide treatment defined as futile. The main effect of the judgment of futility, then, is to limit the autonomy of patients by allowing them to authorize only effective treatment. Once physicians determine a treatment is futile, they no longer have the obligation to provide or continue it, and they do not need the consent of the patient to withdraw or withhold it. One example of this thinking can be seen in some recent policies about providing cardiopulmonary monary resuscitation (CPR) in hospitals. Some new policies allow writing a do-not-resuscitate (DNR) order without the patient’s consent if the physician believes resuscitation efforts would be futile. This is a new development; hitherto, most hospital policies required consent from the patient or proxy before the DNR order could be written. This development reflects the new idea that providers can define futile treatment and then unilaterally withhold or withdraw it. Another example is the 1999 Texas Advance Directives Act (ADA) that was extended to cover children in 2003. It provides legal protection for physicians to stop treatments they consider futile despite what the patient or family wants. We will consider the pros and cons of this legislation in chapter V. At first glance this approach seems reasonable because, at least in some cases, the distinction between effective and futile treatment is clear and does suggest a basis for moral judgment. Treatment ment of people on life support who have suffered whole brain death, for example, is obviously futile. So is periodontal surgery to prevent the loss of teeth ten years from now when thecases, where the futility is clear. In most cases the distinction between futile and effective treatment is not so clear. This is primarily because the notion of futility is so complex it is useless, much as the confusing notion of extraordinary rendered the ordinary-extraordinary distinction useless. Suppose, for example, the probability of a painful treatment’s success is one in a thousand. Providers may consider it futile to provide such a treatment, but a desperate mother may think that one in a thousand is a worthwhile chance for her baby. Again, suppose the respirator is merely preserving an irreversible vegetative state. Providers may consider the treatment futile, but the proxy may consider the treatment effective tive because it is still preserving human life. We will consider such a case-the Wanglie story-in chapter 7. We can see from this that the judgment of futility is often not a clear and objective judgment and that many factors other than medical effectiveness are involved. The distinction between effective tive and futile treatment is too controversial to serve as the basis of ethical judgments. The distinction tion should not become a substitute for thoughtful moral deliberation, no more than should the other distinctions we have considered. Providers may well conclude a treatment is futile, but that alone is not enough to justify its removal. Other relevant values and circumstances must be considered. The futility debate intensified in the 19gos for at least two reasons: the increasing number of cases where families demanded unreasonable CPR efforts and life-sustaining treatments and the upsurge of managed care. We will consider some of the better-known cases-Helga Wanglie, Baby K, Baby L, Catherine Gilgunn, and Barbara Howe-in later chapters. In response to these conflicts some institutions developed policies on futility, but the difficulty in finding an acceptable objective definition of futility remains a weakness in policies trying to identify any treatment that might prolong life as futile. One state, Texas, has an Advance Directives Act that does allow hospitals to define treatment as futile and stop treatment unilaterally, but as we will see in chapter 17, it has produced some unfortunate situations that may do more harm then good. The AMA has taken a different approach. In March 1999 its Council on Ethical and Judicial Affairs issued a helpful report that recommended that institutions avoid policies that try to define futility and develop instead a fair and open multistep process to resolve conflicts about treatments at the end of life. The process can help but unfortunately does not always resolve the dispute. A major reason why the “futility” debates can be so intractable in the United States emerged in an article published in the Archives of Surgery in 2008 that suggested many Americans are basing their demand for treatment on their belief in miracles. Even in cases where there is no reasonable hope of reversing the condition or preventing death, some people believe treatments should be continued to allow for the possibility of a miracle. Researchers found, for example, that 61 percent of the public believe, despite the impossibility of medical reversal, in the real possibility of a miraculous lous reversal of persistent vegetative state (PVS) and that 27 percent of the public believe life-sustaining sustaining treatments should be continued even when it is obvious there is no hope of medical recovery since there is always the real possibility of miracles. However, only zo percent of health care professionals think it makes sense to believe a miracle might reverse PVS, and very few think advanced life support should be continued when there is clearly no hope of medical recovery. The disparity between what the public believes and what health care providers believe obviously sets up an environment where disagreements about what is and what is not “futile” will easily emerge. Belief in miracles is indigenous to many major religions-both the Hebrew and Christian biblical books recount numerous stories of miracles, and both Jesus and his followers reversed many physical and mental illnesses, even death itself, thanks to miracles-and it does not usually give way to reason. However, belief in the possibility of a miracle does not necessarily mean that medical nutrition and other life-sustaining treatments should be continued indefinitely. One can believe in miracles and also decide that feeding tubes and ventilators should be withdrawn. The following examples look like good reasoning but are not. •A miracle could restore awareness and cognitive ability for a patient in PVS. •Mother was diagnosed as being in PVS two years ago. •Therefore, we should continue the feeding tube. There is no logical connection between believing in the possibility of a miracle and concluding that life support

cases, where the futility is clear. In most cases the distinction between futile and effective treatment is not so clear. This is primarily because the notion of futility is so complex it is useless, much as the confusing notion of extraordinary rendered the ordinary-extraordinary distinction useless. Suppose, for example, the probability of a painful treatment’s success is one in a thousand. Providers may consider it futile to provide such a treatment, but a desperate mother may think that one in a thousand is a worthwhile chance for her baby. Again, suppose the respirator is merely preserving an irreversible vegetative state. Providers may consider the treatment futile, but the proxy may consider the treatment effective tive because it is still preserving human life. We will consider such a case-the Wanglie story-in chapter 7. We can see from this that the judgment of futility is often not a clear and objective judgment and that many factors other than medical effectiveness are involved. The distinction between effective tive and futile treatment is too controversial to serve as the basis of ethical judgments. The distinction tion should not become a substitute for thoughtful moral deliberation, no more than should the other distinctions we have considered. Providers may well conclude a treatment is futile, but that alone is not enough to justify its removal. Other relevant values and circumstances must be considered. The futility debate intensified in the 19gos for at least two reasons: the increasing number of cases where families demanded unreasonable CPR efforts and life-sustaining treatments and the upsurge of managed care. We will consider some of the better-known cases-Helga Wanglie, Baby K, Baby L, Catherine Gilgunn, and Barbara Howe-in later chapters. In response to these conflicts some institutions developed policies on futility, but the difficulty in finding an acceptable objective definition of futility remains a weakness in policies trying to identify any treatment that might prolong life as futile. One state, Texas, has an Advance Directives Act that does allow hospitals to define treatment as futile and stop treatment unilaterally, but as we will see in chapter 17, it has produced some unfortunate situations that may do more harm then good. The AMA has taken a different approach. In March 1999 its Council on Ethical and Judicial Affairs issued a helpful report that recommended that institutions avoid policies that try to define futility and develop instead a fair and open multistep process to resolve conflicts about treatments at the end of life. The process can help but unfortunately does not always resolve the dispute. A major reason why the “futility” debates can be so intractable in the United States emerged in an article published in the Archives of Surgery in 2008 that suggested many Americans are basing their demand for treatment on their belief in miracles. Even in cases where there is no reasonable hope of reversing the condition or preventing death, some people believe treatments should be continued to allow for the possibility of a miracle. Researchers found, for example, that 61 percent of the public believe, despite the impossibility of medical reversal, in the real possibility of a miraculous lous reversal of persistent vegetative state (PVS) and that 27 percent of the public believe life-sustaining sustaining treatments should be continued even when it is obvious there is no hope of medical recovery since there is always the real possibility of miracles. However, only zo percent of health care professionals think it makes sense to believe a miracle might reverse PVS, and very few think advanced life support should be continued when there is clearly no hope of medical recovery. The disparity between what the public believes and what health care providers believe obviously sets up an environment where disagreements about what is and what is not “futile” will easily emerge. Belief in miracles is indigenous to many major religions-both the Hebrew and Christian biblical books recount numerous stories of miracles, and both Jesus and his followers reversed many physical and mental illnesses, even death itself, thanks to miracles-and it does not usually give way to reason. However, belief in the possibility of a miracle does not necessarily mean that medical nutrition and other life-sustaining treatments should be continued indefinitely. One can believe in miracles and also decide that feeding tubes and ventilators should be withdrawn. The following examples look like good reasoning but are not. •A miracle could restore awareness and cognitive ability for a patient in PVS. •Mother was diagnosed as being in PVS two years ago. •Therefore, we should continue the feeding tube. There is no logical connection between believing in the possibility of a miracle and concluding that life supportof the double effect. It recognizes that our actions often have bad as well as good effects, and it justifies our performing such actions when the reasons for acting override the bad we cause. This famous principle, although not really helpful in an ethics of prudence and not used by Aristotle and Aquinas, is a principle of moral realism. It reminds us that if we are not prepared to do bad things for good reasons, then ever more terrible bad things will multiply in life. And it reminds us we need good reasons to compensate for the bad we know will follow from the good we are trying to do. Immoral and Intrinsically Immoral Some ethicists advocate a distinction between what we might call the simply immoral and the intrinsically immoral or the intrinsically evil. They argue that some actions are immoral by their very nature. To understand their point, it is helpful to analyze moral behavior into several components. i. The actual physical action that is performed 2. The intention of the agent in performing the action 3. The circumstances in which the action is performed 4. The consequences resulting from the action The idea behind the notion of intrinsically immoral actions is that some physical actions are immoral regardless of the agent’s intention, the circumstances, or the consequences. Other actions may also be immoral, but their immorality depends on the intention, the circumstances, or the consequences. In other words, intrinsically immoral actions are always and everywhere immoral-there there are no exceptions. Once the notion of intrinsically immoral actions is accepted, the ethicist invariably proposes a set of moral laws or rules forbidding these actions always and everywhere. The laws or rules allow no exceptions, no matter what the intentions, circumstances, or consequences. Actions that are not intrinsically immoral, on the other hand, may or may not be immoral, depending on the circumstances stances and consequences, and no moral laws or rules forbidding them can be absolute-exceptions are always possible. What actions do ethicists propose as intrinsically evil? The list, as you might expect, varies, but many ethicists who promote the notion of intrinsically immoral actions include lying, suicide, contraception, sterilization, abortion, extramarital sex, and masturbation. Killing another human being is not proposed as intrinsically immoral because it is morally justified in some situations-war and self-defense, for example. However, some ethicists consider killing the innocent intrinsically immoral, and its prohibition a moral absolute.

of the double effect. It recognizes that our actions often have bad as well as good effects, and it justifies our performing such actions when the reasons for acting override the bad we cause. This famous principle, although not really helpful in an ethics of prudence and not used by Aristotle and Aquinas, is a principle of moral realism. It reminds us that if we are not prepared to do bad things for good reasons, then ever more terrible bad things will multiply in life. And it reminds us we need good reasons to compensate for the bad we know will follow from the good we are trying to do. Immoral and Intrinsically Immoral Some ethicists advocate a distinction between what we might call the simply immoral and the intrinsically immoral or the intrinsically evil. They argue that some actions are immoral by their very nature. To understand their point, it is helpful to analyze moral behavior into several components. i. The actual physical action that is performed 2. The intention of the agent in performing the action 3. The circumstances in which the action is performed 4. The consequences resulting from the action The idea behind the notion of intrinsically immoral actions is that some physical actions are immoral regardless of the agent’s intention, the circumstances, or the consequences. Other actions may also be immoral, but their immorality depends on the intention, the circumstances, or the consequences. In other words, intrinsically immoral actions are always and everywhere immoral-there there are no exceptions. Once the notion of intrinsically immoral actions is accepted, the ethicist invariably proposes a set of moral laws or rules forbidding these actions always and everywhere. The laws or rules allow no exceptions, no matter what the intentions, circumstances, or consequences. Actions that are not intrinsically immoral, on the other hand, may or may not be immoral, depending on the circumstances stances and consequences, and no moral laws or rules forbidding them can be absolute-exceptions are always possible. What actions do ethicists propose as intrinsically evil? The list, as you might expect, varies, but many ethicists who promote the notion of intrinsically immoral actions include lying, suicide, contraception, sterilization, abortion, extramarital sex, and masturbation. Killing another human being is not proposed as intrinsically immoral because it is morally justified in some situations-war and self-defense, for example. However, some ethicists consider killing the innocent intrinsically immoral, and its prohibition a moral absolute.pluralistic society also intrinsically evil. And the “promotion of racism” is a new arrival not found on the centuries-old lists of intrinsic evils. In December 2008 the Vatican’s Congregation for the Doctrine of the Faith released a new Instruction titled Dignitas personae (The Dignity of the Person), which concerns “certain bioethical questions.” The Instruction continues the Vatican’s theology of intrinsically evil actions, specifically mentioning in vitro fertilization and intracytoplasmic sperm injection, pregnancy reduction, as well as other kinds of abortion including any research that destroys a human embryo, “artificial fertilization,” and human cloning even if confined to research. The adoption of this ethics of intrinsically immoral actions by the leaders of the Catholic Church has had a major impact on health care ethics in the United States, where many hospitals are under Catholic auspices. It explains why the Ethical and Religious Directives for Catholic Health Care Services (fourth edition, 2001) imposed by the American bishops on these facilities forbid all abortions, even for ectopic pregnancies; all vasectomies, tubal ligations, and medical interventions for contraception, regardless of the circumstances; and all masturbation, even to obtain sperm for fertility diagnosis or for reproductive assistance within marriage by procedures considered acceptable, able, e.g., husbands and wives using artificial insemination or the transfer of gametes (sperm and ova) to the fallopian tubes. Immanuel Kant The second major source of the current idea that some actions are intrinsically immoral (that is, always and everywhere immoral regardless of the agent’s motive, the circumstances, or the consequences) quences) is the extremely influential moral philosophy of Immanuel Kant. Kant’s basic moral principle ciple was a general imperative that reason imposes on all of us. He called this principle thepluralistic society also intrinsically evil. And the “promotion of racism” is a new arrival not found on the centuries-old lists of intrinsic evils. In December 2008 the Vatican’s Congregation for the Doctrine of the Faith released a new Instruction titled Dignitas personae (The Dignity of the Person), which concerns “certain bioethical questions.” The Instruction continues the Vatican’s theology of intrinsically evil actions, specifically mentioning in vitro fertilization and intracytoplasmic sperm injection, pregnancy reduction, as well as other kinds of abortion including any research that destroys a human embryo, “artificial fertilization,” and human cloning even if confined to research. The adoption of this ethics of intrinsically immoral actions by the leaders of the Catholic Church has had a major impact on health care ethics in the United States, where many hospitals are under Catholic auspices. It explains why the Ethical and Religious Directives for Catholic Health Care Services (fourth edition, 2001) imposed by the American bishops on these facilities forbid all abortions, even for ectopic pregnancies; all vasectomies, tubal ligations, and medical interventions for contraception, regardless of the circumstances; and all masturbation, even to obtain sperm for fertility diagnosis or for reproductive assistance within marriage by procedures considered acceptable, able, e.g., husbands and wives using artificial insemination or the transfer of gametes (sperm and ova) to the fallopian tubes. Immanuel Kant The second major source of the current idea that some actions are intrinsically immoral (that is, always and everywhere immoral regardless of the agent’s motive, the circumstances, or the consequences) quences) is the extremely influential moral philosophy of Immanuel Kant. Kant’s basic moral principle ciple was a general imperative that reason imposes on all of us. He called this principle the

In his Lectures on Ethics (178o), Kant had toyed with the idea of distinguishing falsehood from lying and had suggested that deceiving a person who had no right to know the truth was a falsehood and not a lie. However, in the essay titled On the Supposed Right to Lie from Altruistic Motives, published in 1797 to answer this very critic, Kant made no such distinction and insisted on the absolute prohibition against lying. Regardless of the circumstances and the terrible consequences that follow when the murderer tracks down my friend after I tell the truth, Kant held that I must tell the truth if I cannot avoid answering the question. The moral law simply forbids all lying; there are no exceptions. Lying is always immoral. Today many ethicists claiming allegiance to moral principles and rules grounded in Kant’s moral philosophy simply ignore many of the strict negative duties his theory generates. It is not unusual to see those who consider themselves Kantians in theory accepting,

PHI 324 – Critical Thinking Questions As you read the assigned material in each module, you should apply the following critical thinking questions:

1. What is the purpose of the article [or chapter]? 2. What is the author trying to accomplish? What issues or problems are raised? 3. What data, what experiences, what evidence are given? 4. What concepts are used to organize this data, these experiences? 5. How is the author thinking about the world? 6. Is his/her thinking justified as far as we can see from our perspective? 7. And how does he/she justify it from his/her perspective? 8. How can we enter his/her perspective to appreciate what he/she has to say?

Paul, R. Critical Thinking: How to Prepare Students for a Rapidly Changing World. Dillon Beach, CA: The Foundation for Critical Thinking, 1993

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