Description
Define the following terms from Chapter 2 of your text and describe how each relates to the healthcare environment, either as a healthcare leader, provider, technician, or policy maker.
Nonmaleficence
Beneficence
Autonomy.
Answer each scenario or question completely with a minimum of 3 sentences.
Complete answer/thought with a clear beginning, middle, and end.
Answer is the original work of the student.
Response and/or explanation accurately describe the theory/material
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Chapter 2 Principles of Healthcare Ethics
open a door to help someone in a wheelchair
may be discourteous in most settings or perhaps even rude. However, if healthcare personnel take this action, it is unprofessional and
may result in disciplinary action. Acting with
kindness, compassion, and understanding,
even under extremely stressful circumstances,
is part of the description of professionalism
in health care. In addition, active beneficence
requires the ability to see every patient as a
unique person who has worth. It also requires
a balance between beneficence and clinical
decision-making for the best patient care. Such
a balance is often difficult, especially in times
of great change and challenge.4 Despite its
challenges, beneficence is part of the common
morality of health care.
Nonmaleficence and Beneficence
Are Insufficient Principles
Historically, the main problem that emerged
from emphasis on nonmaleficence and beneficence is that in most healthcare situations, the
physician was the person who defined “harm”
and “good.” Historically, most people were
ignorant of what the physician was doing or
talking about or why he or she prescribed certain treatments. Thus, the physician defined
the patient’s self-interest and carried it out.
When the person who is receiving a benefit or
avoiding harm has little or no say in the matter,
that person receives paternalistic treatment.
The term paternalism comes from the Latin
pater, which means “father.” Paternalism, by
definition, means that one treats the patient
as one would treat a child.5 While the concept
of paternalism is still part of health care today,
changes such as the ACA 2010 and Internet access to healthcare information affect
the patient–provider relationship. Patients
increasingly assert their desire to make decisions for themselves and see themselves as
partners in their own care. Thus, we have to
move beyond nonmaleficence and beneficence
to include the principle of autonomy.
▸▸ Autonomy
If a health professional makes a decision for
a patient from the “First do no harm, benefit
only” perspective without involving the patient
in the decision, then the patient’s autonomy has
been violated. Even if the professional’s entire
intent is to put the patient’s interests before his
or her own, leaving the patient out of decisions
violates the patient’s “self.” While the motivation
may be beneficence, the patient may not experience this action as one of kindness or compassion. Taking the appropriate action for patient
decision-making requires an understanding of
the principle of autonomy and its application in
clinical and administrative decisions.
Autonomy and the Kantian
Deontological Tradition
Autonomy as a concept means that the person
is self-ruling. The term auto is from Greek and
means “self.” The rest of the term comes from
the Greek nomos, which means “rule” or “law.”
Thus, one can understand autonomy as selfrule.6 Underlying the concept of autonomy is
the idea that we are to respect others for who
they are. This view is honored in the medical
tradition as far back as the Hippocratic writings. Therefore, the duty of the physician is to
treat people’s illnesses, not to judge them for
why they are ill. It might be necessary for the
physician to try to get patients to change what
they are doing or who they are, but that is part
of the treatment, not a character judgment.
Autonomy in Health Care
In the healthcare setting, it is often unclear
whether the patient does or does not possess the
conditions required for autonomy. Two important conditions must be met for autonomy:
■■
■■
Are patients competent to make decisions
for themselves?
Are patients free of coercion in making
decisions?
Theories of Justice
These questions reflect the idea that autonomy
implies the freedom to choose. Typically, people have an understanding of what it means to
be competent and be able to make choices on
their own behalf. However, that is not all there
is to competence and autonomy.
A competent person also needs to be free
of coercion. Coercion could mean he or she is
trying to please someone—parents, children,
or care providers—and thus is hiding his or her
real choices. In health care, coercion that might
prevent free choice occurs in many ways. Providers often encounter patients whose choices
are compromised or coerced. For example, an
abused spouse may not feel free to discuss the
causes of injuries. A raped daughter may avoid
discussion of a sexually transmitted disease.
Drug abusers may hide their condition for fear
of job loss.
An interesting approach to competence
is the idea of specific competence as opposed
to general competence.7 Competence can be
understood as the ability to complete a task.
This may mean you are able to do and understand some things but not others. For example,
a person with a transient ischemic attack might
be unable to balance a checkbook. However, that
same person might be able to understand the
consequences of medical procedures and thus
might assent to them or might not. This is an
example of specific competence. A person may
be intermittingly competent because of his or
her medical condition. Thus, the person is competent to assent to treatment right now but was
not so 2 hours previously and might be unable
to do so 2 hours in the future. Given the complexity of defining competence and the need
to respect the autonomy of patients, clinicians
must serve as gatekeepers for decision-making
based on their ability to determine a patient’s
competence for decision-making. Fortunately,
there are tools and standards to assist with this
gate-keeping role.8
At this point, we have examined the
importance of nonmaleficence, beneficence,
and autonomy as principles of healthcare ethics. Application of these principles is essential
45
to providing high standards of patient care and
to the function of mission-based healthcare
organizations. The community assumes that
these three principles are a given in all healthcare organizations. However, consistently
practicing them is often challenging, especially in a complex, ever-changing healthcare
environment.
The last of the four principles of ethics,
justice, often tests the healthcare system in
both patient and organizational ways. This
last section examines the theory and application principle of justice in today’s healthcare
environment. It provides a foundation for
understanding the need to practice justice and
the difficulties in defining and practicing this
principle.
▸▸ Theories of Justice
In general, to know something is unjust is to
have a good reason to think it is morally wrong.
However, we must be able to decide whether
that action is truly morally wrong. Therefore,
we can ask questions like “What kinds of facts
make an act unjust rather than simply wrong
in general?”
People use the term injustice to mean
that they are unfairly treated. Injustice in this
sense occurs when patients with similar cases
do not receive similar treatment. Following
Aristotle, many believe that healthcare professionals are required, as a formal principle of
justice, to treat similar cases alike except where
there is some relevant or material difference
in the cases. The equity requirement in this
2400-year-old principle is critical.
Justice usually comes in two major categories, procedural and distributive. Procedural
justice asks, “Were fair procedures in place,
and were those procedures followed?” Distributive justice is concerned with the allocation of
resources. In some cases, both of these justice
issues will be in play at the same time. Both of
these justice principles start from the idea that
in the distribution of burdens and benefits,
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Chapter 2 Principles of Healthcare Ethics
the allocation should be equal unless there is a
material reason to discriminate.
Procedural Justice
Procedural justice can be defined as due process. For example, in the legal system, we
speak of being equal before the law as part
of procedural justice. In the legal sense, then,
procedural justice or due process means that
when you get your turn, you receive the same
treatment as everyone else. One can apply this
concept to health care. For example, when you
were waiting to see your primary care physician, did you receive the same attention care
as the person who preceded you? Or as procedural injustice, were others seen before you
without any clear medical reason?
Procedural injustices occur in patient
care, but they are more common when dealing with healthcare employees. For example, if
a healthcare administrator has to terminate a
few employees because of economic considerations, are the procedures for determining who
will go applied without bias? In such cases,
the issue is not so much whether what happened was in itself just or fair but whether the
method used followed the stated procedures.
No one would claim that it is fair to terminate
good employees with long careers of service
who have done nothing wrong. However, if
economic circumstances dictate that employees must be terminated, the procedural justice question of whether there were standards
and procedures for making the selections and
whether the decision maker followed those
standards and procedures correctly emerges.
Failures of due process or procedural justice
can also occur in the health policy arena, and
policy makers should carefully watch for these
failures. For example, at a public hearing concerning a health program that is controversial
within the community it is attempting to serve,
the chair allows each speaker 3 minutes to present his or her comments. You will not think it
justice if some speakers are allowed 10 minutes,
whereas others are constrained to 3 or told to sit
down after only 1 minute. You would also not
think it just to only allow speakers who agree
with the committee to have a voice.
The concept of distributive justice is also
important for maintaining an ethics-based
healthcare system. Because of its importance,
it merits its own section and a discussion of
principles and issues. This information should
assist healthcare professionals and others in
the difficult task of providing justice related to
resources.
Distributive Justice
The concept of distributive justice relates to
determining what is fair when decision makers are determining how to divide burdens
and benefits.9 The Kaiser Family Foundation
data suggest that there are distributive justice
issues related to the extent of the resource
allocation disparity in healthcare demand and
spending.10 For example, in the United States,
the average cost of health care in 2010 was
$8402 per person and totaled over $2.6 trillion
dollars. The United States also spends more
money on health care than any other developed nation. In addition, an estimated 20%
of the total healthcare costs expenditures are
caused by waste and fraud. Is this fair?
When it comes to distributive justice on
the national level, many questions emerge:
Why is health care so expensive in the United
States as opposed to other countries? Does the
amount of expenditure mean that Americans
are healthier than anyone else on earth? Are
there less expensive ways to achieve healthcare
goals? Will the changes created in the changing
ACA era provide better health care for more
people and reduce the cost of care overall?
Such questions continue to be debated. However, for our discussion, the point is to understand the difficulty of distributing the burdens
of healthcare costs, while seeking the holy grail
of affordability, availability, and quality all at
the same time.
To understand distributive justice, you
must first understand that resource allocation
Theories of Justice
issues occur at all levels. For example, a physician has to decide how much time to spend
with each patient. Busy nurses have to decide
how quickly to respond to a call button relative
to the task in which they are currently engaged.
Nurse managers have to effectively allocate too
few nurses to too many patients.
Justice issues also exist for health administrators whose duties include hiring employees.
In trying to be just in providing compensation,
they must decide the best method to use to
increase salaries. Should the increase be across
the board or by merit or seniority? If by merit,
then who decides which employees deserve a
pay raise, and is the method fair? The latter
question is one of procedural justice.
In the bigger picture, organizational leaders have to decide whether to spend scarce
money on capital improvements on buildings and equipment, new employees, current
employees, new services, or advertising or
whether to save the money. In health care,
allocation of scarce resources can be a matter of life and death. Those who must allocate
funds often face difficult decisions related to
distribution. For example, in Texas, persons
with acquired immunodeficiency syndrome
(AIDS) and human immunodeficiency virus
(HIV) infection pleaded at a Texas Department of Health public hearing that funding
not be cut. On the line was a drug assistance
program facing budget cuts. At that time, the
drugs for treating AIDS and HIV cost $12,000
per year, and the state was considering only
allowing coverage if income levels did not
exceed $12,400. If a person with AIDS or HIV
made $13,000 a year, he or she would have
only $1000 on which to live. In addressing
this issue, patients with HIV or AIDS told the
panel members to look them in the eye so they
would know who they were killing. Hearing
attendees promised “not to slip quietly into
their graves.”11
Regardless of the outcome of that policy
decision, the emotional consequences, coupled
with necessary fiscal decisions, highlight the
need for the reflective equilibrium in making
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decisions about distributive justice. Reflective
equilibrium is discussed later in this chapter.
To be knowledgeable about why decisions are
made with respect to distributive justice, one
must explore issues related to these types of
decisions.
Material Reasons to Discriminate
The basic principle of distributive justice is
that each person should get an equal share
of the burdens and benefits unless there is a
material reason to discriminate. What are the
reasons to discriminate?12 One can summarize the multiple reasons to discriminate for
material reasons in two different concepts: the
person deserves it or the person needs it. Society believes that those who work hard and do
well deserve their success. That is the common
moral thinking in the United States. In contrast, a person who breaks the law and hurts
people deserves punishment. This common
moral thinking is often held by healthcare professionals and organizations. However, it also
includes a more complex element—need. The
following list includes the most common candidates for material reasons for health care to
discriminate, all of which are subsets of need
or being deserving:
■■
■■
Deserving or worthy of merit includes
one’s contribution or results and effort.
It also includes the needs of individuals or
groups, such as the following:
•
Circumstances characterized as
misfortune
•
Disabilities of a physical or mental
nature or, more generally, unequal
natural endowments
•
A person’s special talents or abilities
•
The opportunities a person might
have or might lose
•
Past discrimination against a group
that is perceived as having negative
effects in the present
•
Structural social problems perceived
as restricting opportunity or even
motivation.
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Chapter 2 Principles of Healthcare Ethics
In the larger society, there is also a need to discriminate on the basis of material need. One of
society’s views of distributive justice is that you
get what you deserve or merit. Your results or
contributions are what count the most in getting what you deserve. The most common form
of getting what you deserve comes from the
market. Therefore, if you are good at what you
do, the market rewards you. If you are not, the
market does not reward you, or even punishes
you. For example, a physician who sees the
most patients should be the one with the higher
income. In addition, healthcare administrators
who meet revenue or productivity goals should
get higher pay than their peers who fail to do so.
In the larger society, effort matters, too.
Many people seek rewards based on their effort,
and often, this effort is rewarded by our institutions or culture. In some cases, we cannot determine whether the results that did or did not
occur were within the person’s control. However,
we can observe their effort, and it translates into
rewards. Thus, the healthcare administrator,
who supervises the more complex healthcare
system, receives more pay than a department
manager. Researchers in biomedicine might
work long and hard without necessarily getting
the results they seek, yet they receive compensation for their expertise and labor.
Many people are willing to assist a person
whom they perceive as putting forth effort and
give up on a person who is not. This applies
to healthcare treatments as well. For example, patients who follow “doctor’s orders” and
do not ask too many questions are viewed as
working hard to solve their health problems.
They will likely elicit more support and effort
from the clinical team. These situations are
common in the management of chronic diseases and in behavioral health. What of the
reasons to discriminate on the basis of need?
Discrimination on the
Basis of Need
It is exceedingly difficult to put an upper
limit on the concept of need. For example, the
classic World Health Organization (WHO)
definition of health is “a state of complete
physical, mental, and social well-being and not
merely the absence of disease or infirmity.”13
This definition sets up a model of need that
is theoretically impossible to meet. However,
some approaches are more useful than others.
These include the following:
Need based on misfortune. In health care,
the common morality is to discriminate
for or against patients on the basis of their
need for care. For example, persons with
emergencies are treated first, no matter
how long one has waited in line. Persons
in accidents, regardless of whose fault it is,
are seen as having experienced a misfortune. Victims of natural disasters generally are perceived the same way. However,
many of the conditions we treat in healthcare organizations are not owing to an
infection, a bad series of decisions, or a
natural disaster. People may suffer from
genetic defects that vastly restrict their
functioning. Others have reduced abilities in physical or mental capacity. One
can consider these conditions a form of
misfortune.
Even in the healthy population, significant disparities exist between people
as to physical and mental ability, including factors such as motivation. For example, one could consider a person’s special
talents or abilities as a potential area for
discrimination. Although we normally
do not think of discriminating in favor of
someone because of special talents or abilities, it does occur. In health care, the clinical team may make more efforts to help
someone with a special talent. For example, each Olympic athlete competing in
Rio, Brazil, had a primary physician, who
worked with the athlete during his or her
preparation for the games. In addition, the
U.S. Olympic Committee had 80 medical
professionals to care for the athletes. There
was also a full-service clinic to address the
Theories of Justice
needs of athletes’ coaches and staff. The
average American certainly does not have
this type of access to care. However, it was
determined that the abilities of these elite
athletes and their representation of the
United States merit discrimination based
on their special talents.14
From a healthcare organization’s
viewpoint, administrators make hiring
and promotion decisions on perceived
ability, speculating that past performance
will be a guide to future performance. In
that sense, the criteria for hiring are a mix
of something the candidate for employment has done and a gamble that he or
she will continue to perform well. Policy
decisions sometimes are made this way as
well, such as when awarding a contract or
a grant or funding a program. Decisions
on rewards or funding are based on the
appearance that those involved have the
ability to accomplish necessary goals of
the policy makers or organizations.
Children and the elderly also receive
special consideration based on abilities
or talents. For example, the argument for
spending money on children’s health care
ties into the idea of their future abilities.
This echoes the natural law argument to
maximize potential. Many clinical workers will go to great lengths to help a child
become whole because the child has so
much life yet to live. Advocates for the disabled and the elderly also are concerned
with ability. They worry that the reduced
potential and ability of the elderly can
lead to discrimination and thus loss of
opportunity.15
Need based on past discrimination. Other
forms of need might include redress of
past injustices to social groups, which
overlaps with the need to provide opportunities and prevent the loss of ability.
In the United States, this thinking led
to the Civil Rights Act of 1965 and affirmative action laws. It could also be argued
49
that past discrimination means that the
protected groups deserve special dispensations. Clearly, the opportunities of many
persons in those groups were restricted.
Many special talents went undeveloped
because the conditions included in discrimination. In health care, we have seen
the nation respond to special groups and
their needs by the development of entire
healthcare systems for them. For example, the creation of the Veterans Health
Administration was in response to the
needs of those who served the country. In
addition, the Indian Health Service was
created to provide care to a limited and
specific group that experienced discrimination on many levels.
For some disadvantaged groups, the
effects of adverse discrimination have led
to access and structural problems that
prevent some of the members from taking advantage of available opportunities.
These burdens, such as poverty, poor educational and housing systems, and poor
transportation systems, often contribute
to the difficulties experienced by some
individuals. Regardless of the root cause of
problems, one knows that structural burdens have adverse health consequences.
Many people who claim to have a
need also say they have a right to our services. The debate about whether health
care is a right or a privilege is still part of
the national discussion today. Let us look
at the concept of rights, because they are
intertwined with the concept of justice.
Distributive Justice and Rights
The efforts toward addressing changes in the
ACA 2010 and other healthcare reforms continue the debate over whether access to health
care is a right or a purchased commodity.
Much of the language in the debate is confusing because there are many types of rights.
One thing is clear: to claim a right means that
a person believes there is some legal reason
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Chapter 2 Principles of Healthcare Ethics
that he or she is entitled to something or that
there is at the least a moral claim supported
by ethics principles and theories. Categories of
rights range from ideal rights to legal rights.
When a person claims that something is a
right, the typical reaction of the other party
is to consider the basis of the claim. Is it a
legal one? Is it moral? Alternatively, is it not
a right but simply a wish or a statement of a
preference?
Ways of Categorizing Rights
FIGURE 2.1 provides a visual reference for the
types of rights and their relationships. One
can find all the rights within the circle of ideal
rights, which are rights we wish we had. All of
the rights within the larger circle are subsets of
the ideal right. Rights that are partially within
one or more other circles are rights that share
common characteristics with their shared circles. For example, natural rights include elements of substance rights and negative rights.
Some of the substance rights and negative
rights have become legal rights. A positive
right is a certain type of thing or social good to
which you have a legal right. All positive rights
are a subset of legal rights.
Process
Rights
Legal
Rights
Positive
Rights
Negative Rights
Substance
Rights
Natural Rights
Ideal Rights
FIGURE 2.1 Types of rights and their relationships.
The size of the circle also indicates the relative importance of each type of right within
the common morality of the United States.
For example, in the United States, the common morality puts more emphasis on negative
rights than on substance rights. Some other
nations place a greater emphasis on collective
welfare as opposed to individual opportunity.
In these cases, the substance rights category
would be larger, and more of it would fit inside
the legal rights circle.
The list of rights here is by no means
exhaustive. The following discussion of the
types of rights in Figure 2.1 provides a synopsis of the issues involved.
Major literature exists on the topic of
rights and includes others that are not part
of Figure 2.1.16 The best of all rights, from the
point of view of the claimant, are enforceable
and legal rights.
Legal and Positive Rights
Margaret Mahoney notes that positive rights
used to be called “social goods,” which society
may or may not provide. The change to calling them “rights” was part of a rhetorical technique to give them a greater sense of legitimacy
for the public.17 A legal right means that someone has a legal obligation to fulfill your right,
whatever it happens to be. A positive right is
a narrow example of a legal right, because it
is a specific social good. For this reason, it
is shown in Figure 2.1 as a circle completely
within the set of legal rights. These rights are
written into law and are described as entitlements. However, a legal right can include more
than simply entitlements. For example, the
legal system protects the right to due process,
but it is not the provision of a good. One could
say the same of the legal right to privacy under
the Health Insurance Portability and Accountability Act (HIPAA). Thus, like due process,
a right to privacy is not a positive right, even
though it is a legal right.
When rights are under pressure because
of budget shortfalls, political pressure to cap
Theories of Justice
government spending, or the like, the real
meaning of a legal right is that you can go to
court to get it enforced. Legal rights are not as
strong as they were once thought to be in protecting the person with the right. For example,
you may have a legal right to abortion or to
Medicare and Medicaid, but if no one is providing it, your right has little value. Apparently,
even the strongest version of a right does not
mean that you will be able to exercise whatever
rights you have.
Substance Rights
Substance rights may or may not be legal
rights. They are rights to a particular thing,
such as health care, housing, a minimum wage,
welfare, food stamps, safe streets, a clean environment, and the like. In this sense, they are
similar to positive rights but not necessarily
legal, as with an entitlement. This is somewhat
of a nuanced difference, because a substance
right might imply that it is a right to something
basic needed to maintain life. Nations, such as
those in Europe, can be concerned with substance rights and attempt to guarantee an outcome or a basic minimum for their citizens.
In those nations, the substance rights became
legal rights. The positive legal rights noted
earlier for health care also are substance rights,
as would be the right in the United States to
get treatment at an emergency department
regardless of the ability to pay.
Negative Rights
In Figure 2.1, depending on the common
morality of the United States, the circle for
negative rights is relatively large and extends
into the legal rights domain. The terminology
used for negative rights comes from the British tradition and essentially means that you
have the right to be left alone. You have the
right to do anything not strictly forbidden by
the law.
Negative rights are clear and enshrine liberty. For example, the Bill of Rights is primarily
51
a list of negative rights, for example, speech
and assembly will not be restricted. The Bill of
Rights also includes the idea that a state will
not enforce a religion. It also reinforces the
negative right that allows individuals to have
weapons because “a well-regulated militia,
being necessary to the security of a free state,
[means] the right of the people to keep and
bear arms shall not be infringed.”18
In the realm of health care, one major
negative right is that we have the freedom to
pursue our lives as we see fit. For example,
motorcyclists claim they have a negative right
to be free from having to wear protective helmets. Another negative right enshrined in law
in some places is the right not to have smokers
in your workplace, eating area, or public areas
generally. Smokers maintain this is a major
affront to their freedom. One person’s negative
right to be free of smoke is the cancellation
of another person’s negative right to be free
to smoke. Therefore, there are often conflicts
about how individuals view these rights and
their effect on others.
Other legal protections that ensure you
are left alone involve the protections against
sexual harassment and hostile work environments. The privacy protections in HIPAA are
yet one more legal negative right. An individual’s medical information cannot be accessed
unless he or she authorizes it or unless there
are medically necessary reasons related to his
or her care. As in the case of positive substance
rights, the costs for those who must honor
these rights and take responsibility for ensuring that individuals are free of these hazards
can be large.
Process Rights
Given the Bill of Rights, many laws relate to
ensuring that due process is followed, at least
for most people. As noted in the discussion of
the layout of the diagram in Figure 2.1, process
rights do overlap with natural rights. In the
United States and in most developed nations,
process rights also are legal rights.
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Chapter 2 Principles of Healthcare Ethics
Natural Rights
Natural rights have a long history. The concept of a natural right means that we should
respect attributes that humans have by nature.19
For Aristotle and St. Thomas Aquinas, these
features would be those that best support the
achievement of our highest good. The appeals
to natural rights within our common morality
that are most well-known go back to the Founding Fathers. Drawing heavily on John Locke,
Thomas Jefferson proclaimed in the Declaration of Independence, “We hold these truths to
be self-evident, that all men are created equal,
that they are endowed by their Creator with
certain unalienable Rights, that among these
are Life, Liberty, and the pursuit of Happiness.”20
One practical advantage of the natural
rights approach to determining a person’s rights
is that people from very different perspectives
use the same language. Thus, even if their views
are philosophically inconsistent, they can agree
that someone has a natural right. For example,
many will say that there exists a natural right
to that which is necessary to move toward one’s
full potential, and health is important to this. To
the extent that health care is related to health,
one should be able to sustain the argument that
morally one has a right to health care. Note
that the philosophical reasons for why anyone
should be able to develop his or her potential
are manifold. However, people of differing
religious and philosophic views could agree
about having a natural right to develop potential without having to even acknowledge their
underlying philosophical differences. Thus,
simply as a matter of rhetoric, the language of
natural rights plays an important role in making right claims within our common morality.
Ideal Rights
An ideal right is a statement of a right that is
meant to be motivational, a goal to seek. WHO’s
definition of health and its subsequent claim that
everyone has a right to the highest-attainable
health falls into this category. Ideal rights serve to
guide organizations, communities, and nations
to go beyond the minimum concept of human
rights and seek to provide higher standards for
their patients or constituents.
Reflections on Rights
One element of the reflective equilibrium
model (discussed later in this chapter) that
comes into play is the weighting of rights. The
fact that we have a right seldom means that it
trumps all other considerations. Consider the
issue of conflicting rights at the policy-making
level. Ass
