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Before yesterdayJournal of Medical Ethics blog

Beds, beds, beds — We need more addictions beds

By Austin Lam.

With recent news of a major private donation to transform addictions care in Vancouver, British Columbia, I have reflected on my experiences as a resident physician taking care of patients with substance use disorders.

Drawing from her personal exposure to the devastating effects of addiction through the death of her brother, Jill Diamond reflected on the existing gaps in care and the importance of a seamless continuum of care. She rightly pointed out the need for inpatient recovery-focused beds. This has clicked with a reflection that I have held for this past year: where are our publicly-covered inpatient addiction beds in our hospitals?

Beyond opportunistic interventions, we need systematic interventions. There is a glaring incommensurability between opportunities for intervention and actual intervention needs in substance use disorders in inpatient hospital settings. In the current landscape of opportunistic addiction treatment, a patient is admitted under a Most Responsible Physician (MRP) service, e.g., Internal Medicine, Psychiatry, Surgery, etc. However, we do not have focused inpatient beds with the express purpose to optimize addiction treatment and to arrange appropriate community follow-up.

In the current landscape, addiction treatment teams ‘jump’ on the opportunity to help when requested by the aforementioned MRP services. The teams can then assist with managing substance withdrawal, offer medication therapies, engage in motivational interviewing, and provide connections to psychosocial services. But the addiction teams do not have beds themselves. The length of the patient’s hospital stay is contingent on their ‘primary’ reason(s) for admission or other medical/psychiatric/surgical issue(s) that necessitate continued inpatient treatment — and these may well be the consequence of addiction, such as cellulitis from intravenous drug use. However, substance use disorder is not by itself a reason for inpatient treatment optimization (though collegial work environments offer the opportunity for addiction teams to advocate for longer inpatient stay to optimize treatment, e.g., opioid agonist therapy).

Are substance use disorders not disorders that merit treatment in and of themselves in inpatient hospital settings?

Hence, we are left with a hodgepodge landscape of care, contingent on the collegiality amongst addiction and MRP teams as opposed to a systematic continuum of care that may allow patients who have been medically/psychiatrically/surgically stabilized to then benefit from longer inpatient stay under the care of a specialized addiction team who can focus on optimizing addiction treatment and to engage the patient and their support system (e.g. family/friends) in their recovery journey.

The task before us is not only to meet patients ‘where they are at’, but also to show patients ‘where they can be’ by discovering anew their self-understanding of life goals and larger sense of meaning/purpose. The risk of merely meeting people ‘where they are at’ is that it can objectify people as static entities. We are not static. We are dynamic beings, perpetually engaged in understanding ourselves and our world in the act of living. There is a risk of indulging in the bigotry of low expectations if we view patients as static at their ‘baseline’.

Beyond the laudable and crucial aim of reducing harms, we must encourage and promote flourishing in patients’ lives. Aristotle spoke of eudaimonia; Maslow wrote of self-actualization; and Frankl wrote of the importance of meaning. All these ideas tie to the fact that there are things that make life purposeful. We share common aims as human beings geared towards the discovery of meaning. John Finnis elaborated on the basic goods of human life: life, knowledge, play, aesthetic experience, sociability of friendship, practical reasonableness, spirituality/metaphysical orientation, and partnership. These are the goods that we must promote in conjunction with reducing harms.

Accordingly, the types of inpatient beds we need are not the ones we currently have accessible. Importantly, many patients with substance use disorders do not want addiction treatment or are ambivalent. For the latter, we can lower the barrier to recovery by offering longer inpatient stays with the aim of addiction treatment optimization, continued psychosocial engagement, and arrangement of appropriate follow-up care. We can not only meet the patient ‘where they are at’ but also actively foster recovery: we can identify and work towards the patients’ goals and importantly, support the patient in aligning their goals with what it means to flourish.

Rudolf Virchow, pioneer of social medicine, is quoted as having said: “Medicine is a social science and politics is nothing else but medicine on a large scale … the politician, the practical anthropologist, must find the means for their actual solution”. However, rather than just ‘the politician’, we — as citizens in the public realm — hold the influence to push for change. Our collective society must have the will to invest in inpatient addictions beds as part of a systematic continuum of care. We must strengthen participatory democracy. As John Ralston Saul pointed out, against the specialized nature of non-governmental organizations, “self-interest or business cannot lead in a decent society. Society must lead them”.

 

Author: Austin Lam

Affiliation: Department of Psychiatry, University of British Columbia

The views expressed in this publication are those of the author. They do not purport to reflect the opinions or views of the UBC Department of Psychiatry.

Competing interests: None declared

Social media account of post author: @austinaldenlam

The post Beds, beds, beds — We need more addictions beds appeared first on Journal of Medical Ethics blog.

When and why does a genetic variation become a result?

By Rachel Horton, William Macken, Robert Pitceathly and Anneke Lucassen.

We’ve each got four to five million ways in which our DNA differs from the ‘standard’ or ‘reference’ genetic code. When our genome is looked at in a test, all these differences are logged. Most won’t affect our health at all, they’re just natural genetic variation, though they could be used to infer stuff ranging from where our recent ancestors probably lived, to what colour our eyes are likely to be. A few of these differences will have a clear impact on health – for example, they might influence our risk of developing cancer, or might mean that if we have children there’s a chance they could have a genetic condition like cystic fibrosis. For lots of these differences, we’ve got very little idea what they mean, or we know that they have slightly different effects in different people.

In getting from four to five million genetic differences per person to a clinical result from a genomic test, a huge amount gets filtered out along the way. This filtering is often seen as a very technical process, a way by which you find ‘the needle in the haystack’ – but that presupposes that we know what results look like and the challenge is simply to find them. In our article we talk through a case where genomic testing done to investigate muscle weakness found something off-target and uncertain: a genetic variation that possibly predisposes to kidney cancer, uterine fibroids and skin lumps. The ‘needle’ we were looking for was an explanation for the patient’s muscle weakness; what we saw instead wasn’t really needle or hay.

The variation in question isn’t causing the muscle weakness that led to the patient having a genomic test, and quite possibly it doesn’t really predispose to kidney cancer at all. It’s completely normal to have stuff that looks at least hypothetically concerning in your genetic code – on average, each person has 54 variations previously reported as disease-causing (i.e. in theory, we’re more confident than we are for the variation discussed here that they might cause trouble) in their genome. In practice, some of these might lead to disease in them or their family, but most won’t. However, in this particular case, a detailed family history asking about kidney cancer, uterine fibroids and skin lumps, and a careful clinical examination focussing on skin, might shed light on the meaning of this particular genetic variation.

So we argue that the variation should be discussed with the patient who had the test – not because it is medical information, but because further work might lead to its becoming so. But we reflect on some of the seemingly technical aspects of genomic testing that led to this variant being considered as a potential result – for example, the choice to examine the gene that the variant is in when exploring the cause of the patient’s muscle weakness, and how the person reviewing the genomic data happened to have a general genetics background rather than an exclusive focus on muscle conditions.

Our article suggests that when appraising genomic information, we should not leap to ask ‘what should we do about this result?’ before we have first questioned why and whether it constitutes a result. Ethical debates around genomics often focus on whether to look for, or how to respond to, genomic ‘results’, but finding results within a person’s millions of genetic variations is not a matter of waving a metal detector around and waiting for needles that make it beep – needle/hay distinctions are often in the eye of the beholder and the choices that need to be made as to why and when genetic variations should be viewed as results deserve more attention.

 

Paper title: Discussion of off-target and tentative genomic findings may sometimes be necessary to allow evaluation of their clinical significance

Authors: Rachel Horton (1, 2, 3), William Macken (4, 5), Robert Pitceathly (4, 5), Anneke Lucassen (1, 2, 3)

Affiliations:

  1. Clinical Ethics, Law and Society (CELS), Wellcome Centre for Human Genetics, University of Oxford, Oxford, UK
  2. Clinical Ethics, Law and Society (CELS), Primary Care Population Sciences and Medical Education, University of Southampton Faculty of Medicine, Southampton, UK
  3. Centre for Personalised Medicine, University of Oxford, Oxford, UK
  4. Department of Neuromuscular Diseases, UCL Queen Square Institute of Neurology, London, UK
  5. NHS Highly Specialised Service for Rare Mitochondrial Disorders, Queen Square Centre for Neuromuscular Diseases, The National Hospital for Neurology and Neurosurgery, London, UK

Competing interests: None declared

Social media accounts of post authors: @rach_horton, @w_macken, @RobPitceathly, @annekeluc

The post When and why does a genetic variation become a result? appeared first on Journal of Medical Ethics blog.

“We could use that as a tiebreaker” – Yes, but why should we?

By Borgar Jølstad and Erik Gustavsson.

Health care priority setting should be based on morally relevant factors such as need, severity, and maximizing health outcomes. But sometimes we must choose between health care allocations where these primary considerations are tied. It is sometimes suggested, and implemented in practice, that in these situations other, perhaps more controversial, factors can play the role of tiebreakers. For example, age, healthcare worker status, and first come, first serve, have been suggested as tiebreakers for ventilator guidelines in many U.S. states. This may seem an elegant solution, but tiebreakers are deeply problematic.

First, there is the issue of the value of the tiebreaker. If it is important enough to make a difference in ties, why is it not important enough to make a difference in other cases? That is, why are these factors only valuable in ties? Since any difference among the primary considerations in the priority setting system will offset the tiebreaker, any value ascribed to the tiebreaker will be miniscule. This is particularly strange in priority setting systems where ties are frequent, and the tiebreaker plays a major role in the end. The result is a minimal value making a big difference.

For example, in the Australian pandemic priority setting guidelines people are allocated to “high” and “low” priority groups based on likelihood of recovery and benefiting from treatment. Ties are to be broken by previous disadvantage and health care worker status. Presumably, the reason why these factors are ascribed the role of tiebreakers is that they are not important enough to decide whether someone is “high” or “low” priority. But strangely, they tip the scale in many cases. If a factor is important enough to make such a big difference, relegating it to the status of tiebreaker or secondary consideration seems strange.

Secondly, it is doubtful whether our reasons for implementing a tiebreaker can overcome our reasons for preferring a lottery. In Against Tiebreaking Arguments in Priority Setting we argue that lotteries are the reasonable way to break ties. Lotteries can be justified by referring to impartiality, respect for the separateness of persons, fairness, and the moral value of chances. Our reasons for preferring a lottery are particularly strong in ties, where people’s claims are, presumably, equally strong. If tiebreakers are only valuable enough to make a difference in ties, how can they overcome these reasons for preferring a lottery? Both fairness and impartiality are preserved by lotteries, whereas deciding using a tiebreaker involves allowing a professedly minimally important factor to be decisive for the outcome.

Tiebreakers are puzzling and seem notoriously difficult to justify for priority setting. If a factor is truly important, it should simply be part of our primary considerations, while ties should be decided by lottery.

 

Paper title: Against Tiebreaking Arguments in Priority Setting

Authors: Borgar Jølstad and Erik Gustavsson

Affiliations:

  1. Borgar Jølstad

(A) The Health Services Research Unit—HØKH, Akershus University Hospital (Ahus), Lørenskog, Norway.

(B)  Institute of Health and Society, Faculty of Medicine, University of Oslo, Norway.

  1. Erik Gustavsson

(A) Centre for Applied Ethics, Department of Culture and Society, Linköping University, Sweden.

(B) National Centre for Priorities in Health, Department of Health, Medicine and Caring sciences, Linköping University, Sweden.

Competing interests: None

Social media accounts of post authors: @Borgar_Jolstad

The post “We could use that as a tiebreaker” – Yes, but why should we? appeared first on Journal of Medical Ethics blog.

Vaccine mandates can result in people losing their jobs. Does that make them unethical?

By Maxwell J. Smith. 

Consider: Kelly is a nurse who has been employed by her city’s general hospital for nearly thirty years. She is single, has two kids preparing to go to university, and a mortgage to pay. Her job is threatened when she is told that, as a condition of continuing her employment, she must be vaccinated against a novel pandemic virus. Kelly is unwilling to get the vaccine and is fired as a consequence.

Recognizing there are many considerations that should inform the ethical assessment of vaccine mandates, is it sufficient to simply point to the harms associated with Kelly losing her job to show that the vaccine mandate is unethical?

No, it’s not, because terminating someone’s employment can be justified irrespective of the harms that may be associated with their termination. In other words, failing to meet certain employment conditions, including health and safety conditions, can be considered disqualifying irrespective of the harms visited upon those unwilling to meet them. This is important to emphasize because objections to vaccine mandates grounded in the harms resulting from people being fired do not necessarily entail the claim that vaccination is unnecessary for the effective and safe performance of their jobs. If this were the case, the objection should centre on the baseless nature of the requirement, not (only) the harms that may be experienced by existing employees who are unwilling to be vaccinated. Yet, commentators frequently point to such harms as sufficient reason to object to vaccine mandates: “It’s not right that Kelly lost her job because of the vaccine mandate. She has two kids to feed and a mortgage to pay.” Alternatively, some argue the harms outweigh the benefits: “The harms to these people losing their jobs outweigh the harms they are apparently trying to prevent with the vaccine mandate.”

Instead, the pertinent question (which may in fact tacitly underlie objections to vaccine mandates grounded in the harms experienced by those fired as a result of them) is whether the mandate is justified in the first place. If a mandate is not justified (e.g., if it is useless, arbitrary, etc.), then firing people for failing to comply with it is clearly wrong. While this may seem rather obvious, what it reveals is that the locus of scrutiny shouldn’t be on the magnitude of harms associated with people losing their jobs as a result of mandates, but rather on whether such mandates are necessary and justified in the first place. If they are, then the harms employees may experience as a result of being unwilling to get vaccinated should not on their own be dispositive of whether or not such mandates are ethical. We should therefore be sceptical of arguments that simply count the harms experienced by those who are unwilling to be vaccinated as a sufficient reason to think vaccine mandates are unethical.

Now, this argument says nothing about the overall justification of vaccine mandates. And nothing I’ve said here should be taken to suggest we shouldn’t attempt to limit the negative consequences experienced by employees affected by vaccine mandates, for example, by offering reasonable and available alternatives, like remote work, or by providing reasonable accommodations to those for whom vaccination is medically contraindicated or in accordance with human rights obligations, or that we should be indifferent to the consequences of vaccine mandates for existing employees. What I have argued is more narrow, i.e., that the fact that people can lose their jobs as a result of vaccine mandates, and that these harms may be rather severe, is not on its own sufficient to tell us that vaccine mandates are unethical.

 

Paper title: The ethics of firing unvaccinated employees

Author: Maxwell J. Smith

Affiliations: Faculty of Health Sciences and Rotman Institute of Philosophy, Western University

Competing interests: None declared

Social media accounts of post author: @maxwellsmith

The post Vaccine mandates can result in people losing their jobs. Does that make them unethical? appeared first on Journal of Medical Ethics blog.

Why we can almost guarantee that genetic enhancement will never be fairly distributed

By Sinead Prince.

We’ve been discussing the possibility of genetic enhancement, and the ethics of such technology, for some time now. Many people are quite cautious about the idea of genetically modifying embryos as well as adults, but others have begun waving the green flag rigorously.

Genetic enhancement is the modification of genes using technologies such as CRISPR, for the purpose of bringing about specific kinds of physical traits e.g., blue eyes, bigger muscles, more reliable memories, and empathetic personalities. There are many questions these possibilities raise. For example, should we be modifying human nature? Is this actually good for us? Can we distribute this technology fairly?

It is the last question that I am concerned with. Proponents and critics of genetic enhancements alike argue that this can be done. Some argue that we will eventually distribute genetic enhancements, like all other technologies, through trickle down economicsOthers argue that governments will actively distribute genetic enhancements equally because such technologies will boost productivity and therefore the economy. Others argue that we might be able to distribute genetic enhancements in such a way as to mitigate social or economic disadvantage.

The fundamental problem with all these solutions and ideas is that they misunderstand how genes produce physical traits. The process by which genes produce physical traits is complex and still not entirely understood. However, one important process is the gene-environment interaction. Our environments can directly impact our physical traits by, for example: physically changing our DNA sequences, activating or inactivating specific genes, or intervening in the chemical environment that is responsible for instructing our DNA to make proteins.

These environments are relevant to genetic enhancements. For example, although we cannot choose our parents, our skin colour, or our childhood environments, these all directly impact our physical traits including our cognitive abilities and capacities to manage stress. Our socioeconomic class also directly and indirectly impacts our physical traits. Those with low socioeconomic class, for instance, age faster than their chronological age. They also experience a disproportionate burden of morbidity, poor exerciseincreased alcohol and tobacco consumption, and poor diets, all of which are known environments that produce pathological changes to our physical traits. Furthermore, they lack the same opportunities to express and exercise certain physical traits, such as quality education, and extracurricular activities.

We have also begun to realise how some environments actually produce better outcomes when they interact with specific genes. For example, better responses to social feedback and better skill development.

Even if we all had access to genetic enhancements, those subject to social, racial, and economic inequalities, will still suffer the same pathological changes to their physical traits. They might still technically have the ‘smart’ or ‘music’ genes, but if they cannot also enjoy an adversity-free childhood or go to quality schools on a regular basis, or access musical lessons, they will not enjoy the same physical traits as their peers. Those with positive environments will therefore not only enjoy the benefits of being ‘smart’, but will not experience pathological changes to the very genes that were enhanced. Equal access to genetic enhancement will not produce a fair distribution of the intended benefits of genetic enhancements. We don’t know the exact extent of such inequality, but we do know that if we seek to justify genetic enhancements on the grounds that they can be fairly distributed, the distribution of such physical traits cannot arise without social change.

Even proposals to distribute enhancements to compensate those suffering from inequality, such as by only enhancing them with ‘smart’ genes or giving them ‘resilient’ genes to change, are not straightforward. First, how does being smart compensate for a life of inequality and exclusion? If you are smart, but still cannot go to school because of socioeconomic inequality, you cannot express such enhancements and develop your physical traits. Second, enhancing people to be resilient to inequality does not justify the inequality they continue to suffer. Being cognitively enhanced is not moral compensation for suffering racism. If ensuring equality of physical traits is the aim in our ethical reasoning, removing the inequalities that already pathologically interfere with people’s genes is our first priority.

The gene-environment interaction will prevent any method of distribution from arising as intended. This means that no matter which way we distribute enhancement to achieve fairness, the inequality from our social, racial, and economic environments will always prevent such outcomes from arising. Furthermore, such distribution will exacerbate inequalities by improving the genes of those already privileged with positive environments.

The gene-environment interaction is missing from debates about the distribution of genetic enhancements. This undermines the argument that genetic enhancements are morally permissible because they can be distributed fairly. This is not to say we must ban genetic enhancements, but to show how we can achieve equality, by removing barriers that cause people to experience disadvantage and harm in the first place.

Paper title: The gene-environment interaction: Why genetic enhancement might never be distributed fairly

Author: Sinead Prince

Affiliations: Australian Centre for Health Law Research, Queensland University of Technology

Competing interests: None

Social media accounts of post author: @sinead_prince

The post Why we can almost guarantee that genetic enhancement will never be fairly distributed appeared first on Journal of Medical Ethics blog.

Consent for medical treatment: What is ‘reasonable’?

By Abeezar I Sarela.

Consent is fundamental to good medical practice. The General Medical Council (GMC) advises doctors to comply with the law in obtaining patients’ consent for medical treatment. Currently, the law on consent derives from the judgment of the Supreme Court in the case of Montgomery v Lanarkshire Health Board. This judgment emphasizes that patients require information about more than just the risks of the treatment that is proposed by the doctor. Patients also need information about ‘reasonable’ alternatives to the proposed treatment because a meaningful choice cannot be made without awareness of options.

The duty to inform patients about reasonable alternative treatments is theoretically sound but it can pose serious practical difficulties. What if a doctor considers that only one treatment is appropriate for a certain patient; and that other treatments, whilst available in general for the patient’s disorder, are not suitable in view of that patient’s particular condition? Now, is the doctor required to discuss these other treatments with the patient? There are differing views on this issue. These differences are sufficiently serious that a case was recently heard by the Supreme Court, and the judgment is awaited.

The facts of the case before the Supreme Court exemplify the problem. The patient, Mr Neil McCulloch, was admitted under the care of an acute medical team. He had pericardial effusion. The acute team made a diagnosis of pericarditis and sought advice from a cardiologist, Dr Labinjoh, who disagreed with the diagnosis. In her view, the pericardial effusion was part of some systemic disorder, with co-existent ascites and pneumonia. Accordingly, she did not advise any specific treatment for pericarditis. Mr McCullough was discharged from hospital and, unfortunately, he died two days later because of pericardial tamponade. His widow, Mrs Jennifer McCulloch, has claimed that Dr Labinjoh should have discussed the option of non-steroidal anti-inflammatory drugs (NSAIDs), which are well-established as the first-line of treatment for acute pericarditis. Her claim is supported by two experts in cardiology. But another cardiology expert disagrees. In his view, NSAIDs were not indicated in Mr McCulloch’s particular case.

At trial in the Scottish Court of Session, the judge considered whether Dr Labinjoh’s advice was reasonable by posing two questions. First, was her advice supported by colleagues in cardiology? (In legal terminology, this question is called the ‘Bolam test’). Second, was her advice logically sound? (the ‘Bolitho test’). In law, a doctor’s action is deemed reasonable if the answer is ‘yes’ to both questions. As mentioned earlier, a cardiology expert endorsed Dr Labinjoh’s advice. Also, her advice was deemed logical because, as per evidence presented to the court, the primary purpose of NSAIDs in pericarditis is to relieve chest pain; and Mr McCulloch did not have significant pain. Accordingly, the judge concluded that Dr Labinjoh had acted reasonably in not advising Mr McCulloch of the option of NSAIDs. The trial judge’s decision was upheld at appeal in the Court of Session.

The argument before the Supreme Court is, essentially, that Dr Labinjoh’s advice was not the only reasonable advice. NSAID therapy, too, would have been reasonable. Two cardiologists, who supported Mrs McCulloch’s claim, would have prescribed NSAIDs for Mr McCullough. Although he did not have a typical presentation of acute pericarditis, he did have a pericardial effusion. It was suggested that NSAIDs might reduce the size of the pericardial effusion even in the absence of pain. As such, NSAIDs were a reasonable option, and the pros and cons should have been discussed with Mr McCullough in order for him to make an informed choice.

More than one treatment may be considered as a reasonable option in many situations. But, legal analyses take place after the event. In real time, a treatment option that is considered reasonable by some doctors can seem unreasonable to others. Doctors have no way of canvassing and debating the opinions of colleagues at every step. Surely, it is each doctor’s job to use their own clinical judgment to identify reasonable options, and then involve their patient in shared decision-making about these reasonable options only. In some cases, as for Mr McCulloch, the doctor might find that only one option is reasonable.

The crux is reasonability. The word ‘reasonable’ appears 13 times in the GMC’s guidance on consent; but the GMC does not clarify the meaning of this term. The meaning remains hotly debated in political and legal philosophy. The Supreme Court’s judgment in the McCulloch case might offer some answers. Yet, it does not seem fair to expect doctors to fathom the demands of reasonability from philosophical literature and case law. The GMC should act upon the Supreme Court’s forthcoming judgment by providing some guidance on what it means to be ‘reasonable’.

Author: Abeezar I Sarela

Affiliations: Department of Surgery, The Leeds Teaching Hospitals NHS Trust

Competing interests: None declared

The post Consent for medical treatment: What is ‘reasonable’? appeared first on Journal of Medical Ethics blog.

A new argument on personhood, based on pregnancy

By Heloise Robinson.

This blog post is about a JME article I have just written, in which I make a new argument on personhood, in relation to pregnancy. I argue that, if we follow a threshold concept of personhood, there are reasons to recognise a second threshold that would be reached because of pregnancy, and that would mean that pregnant women have a superior moral status. It is not an argument on the moral status of the fetus, but on the moral status of the pregnant woman.

Although the argument might seem radical in some sense, it also seems to me that in another sense it should be easy to accept, at least, if we are committed to accepting a threshold approach to personhood. The most surprising point might be that no one, as far as I can tell, has made the argument before. There has already been some consideration of the possibility of recognising two thresholds of personhood, but in the context of future persons who will have been cognitively enhanced through the use of new biotechnologies. I think these are interesting scenarios to think about, although they also make me think of how they might be in line with a rather eager form of enthusiasm for super-heroes – the super-intelligent man, or the super-powerful man. This is science fiction. But in real life, there are some people among us who actually do have real super-powers: and the power to create a new human being is not only real, but surely is much more beneficial. I am not quite sure what is the use of having a super memory, and, perhaps, memorising hundreds of thousands of digits of Pi. I do think it is useful to create another human being.

I doubt I would have started to write this article if I had not read some of the recent and exciting literature on the metaphysics of pregnancy, and which has been associated with the Better Understanding of the Metaphysics of Pregnancy (BUMP) project, led by Elselijn Kingma. I am in no way connected with it, but discovered it with great interest. Having conducted research on the law and ethics of abortion for some years, it was a relief to find an engaging and growing body of literature in philosophy that addressed the significance of pregnancy beyond that context, and where the questions examined were not only about whether or not a pregnancy can be ended. The credit goes to Andrea Mulligan for pointing me towards this literature, through a long and spirited conversation we had in an Oxford senior common room about a shared interest in medical law and ethics, the value of women’s voices, and the many amazing features of pregnancy.

But there was one distinct catalyst for the article, which came later, and which is not directly related to my argument. There has been a recent trend to change the language used to speak about pregnancy. One day I came across a new text speaking about persons undertaking gestational labour, and some mention of producing a ‘product’ of this labour undertaking. There was, I think, some discussion that this undertaking of gestational labour performance had nothing to do with motherhood, but I must admit I was not able to read much of it. It was written in a language I could not read. I think there might well be important reflections and suggestions in that text that I would agree with, but the language created such a barrier for me that I could not get to them. It was the language itself that pushed me in another direction, to another sort of argument, and that helped me to realise what I truly thought about pregnancy – that it was not just a form of labour, or production, or a good to share out, or an injustice to redistribute, but rather a most profoundly human experience, with metaphysical significance. It comes with burdens, but that is not the sum of it. Human pregnancy is not just about doing. It is also about being. And that recognition, for me, also requires a certain kind of language. I do not know what it means to produce a product of gestation as a gestational labourer undertaker. I know what it means to be pregnant, to feel life growing inside my body, and to hold a newborn baby in my arms.

Not everyone will agree with my argument that pregnant women can be regarded as having a superior moral status. A lack of agreement will inevitably arise in the context of any discussions on personhood, because such discussions necessarily rely in part on a metaphysical, or intuitive, understanding, and it seems like we have different intuitions. There are also, here, epistemic barriers arising from the fact that those who have not experienced pregnancy, and the birth of their child, might not be able to fully appreciate the significance of pregnancy which I am trying to convey. Still, we have been having babies for quite some time now, and I think the importance of pregnancy needs additional consideration. I hope that many people will seriously consider the argument, not only for its potential to provide, I think, a richer conception of personhood, but also for the many positive practical and legal consequences that I believe it could, and should, bring.

 

Paper title: Pregnancy and Superior Moral Status: A Proposal for Two Thresholds of Personhood

Author: Heloise Robinson

Affiliations: Singer Fellow in Law, Exeter College, University of Oxford

Competing interests: None declared

Social media accounts of post author: Twitter: @HeloiseRobinson

The post A new argument on personhood, based on pregnancy appeared first on Journal of Medical Ethics blog.

Patient data for companies: Patient privacy, private profits and the public good

By Adrian Thorogood and Eva Winkler.

Our paper tackles a question that policymakers and public healthcare systems are wrestling with around the world: should for-profit companies be given access to medical data derived from patients for research?

In public healthcare systems, medical data is generated as part of the routine care of patients, and through administrative processes like billing and reimbursement. Medical data is a valuable resource for research and innovation that can advance medical science and improve healthcare. Beyond academic research, for-profit companies are increasingly interested in access to “real world” medical data to inform the discovery and development of drugs, medical technologies, and data-based health applications such as AI. Many countries are actively promoting data sharing to advance public health and wealth goals.

Despite this enthusiasm, for-profit re-use of medical data from public healthcare systems continues to be a source of controversy. Hospitals and data sharing initiatives have often been criticized for a lack of transparency and social license. Some have even been shuttered or sued. Empirical surveys consistently suggest patients and members of the public are less comfortable with companies accessing their sensitive health information than healthcare professionals or academic researchers.  This tension between the interests of patients and those of the public and for-profit corporations calls for a closer look at the interests of all parties involved.

Inspired by political philosophy, our paper aims to identify and evaluate the competing claims of different stakeholders relating to for-profit re-use of medical data. This includes the patients providing data, the companies seeking to use data, the society who funds and relies on its public healthcare system, and the healthcare institutions and professionals who painstakingly generate medical data.

Patients have a right to have their medical data treated with confidentiality, and a right to actively determine who accesses this sensitive form of personal data and why. Any re-use of their data should be subject to strict privacy and security safeguards, and to high standards of consent, transparency, and accountability. Patients might expect to receive a direct share in profits generated from the contribution of data. Assuming such a scheme could be practically implemented, does this claim override those of companies, hospitals and society? We argue that this is a weak claim: while medical data certainly fall under patients’ control required by the right to informational self-determination, data are generated primarily for their healthcare and no right to share in profits  can be deduced.

For-profit companies in the health sector do not have a right per se to access publicly funded medical data. However, they are entitled to freedom of research – a defensive right restricting state influence on research activities – and a right to a level playing field where access is provided (non-discriminatory access). Companies do have a legitimate right to pursue and realize profits from developing high-quality, life-saving or improving health products. Where products do not offer true value, are overpriced or are not domestically available, however, commercial practices can threaten the sustainability of health systems and patient access. This seems all the more unjust for products developed using data provided by health systems and patients. As part of corporate social responsibility, companies have ethical and reputational reasons to protect patient privacy and to deliver benefits to society, reflected by the current proliferations of guidelines around responsible AI.

Hospitals and clinics are ultimately the places where patient data is generated, through the dedicated efforts of healthcare professionals and staff. Do physicians and hospital leadership own the data and have a claim to share in eventual profits? These claims are complicated by the public funding supporting healthcare delivery, patient self-determination, and the fact that data generation is only the beginning of a complex value chain. They do, however, have a valid claim to appropriate compensation for data generation and curation, one that is all too often overlooked.

Society can benefit from for-profit re-use through things like improved drug safety, as well as more accurate and cost-effective care. How can the  state ensure public funds invested in health systems and data infrastructure maximally benefit society, while also maintaining public and patient trust?

Two key tensions arise: between profit maximation versus societal benefit, and between commercial and societal interests in exploiting data versus patient self-determination and privacy. To address these tensions, we conclude by suggesting conditions for ethically sound for-profit re-use of medical data:

  • Limit for-profit re-use to uses that aim to improve health or health systems and ensure and document this return and contribution in a transparent way.
  • Strengthen consent practices and offer patients meaningful consent opportunities, supported by data access oversight bodies including patient representatives.
  • Establish privacy and security safeguards to minimize risks and hold companies to account for breaches.
  • Transparently document public support for companies, and track how this contributes to profits and societal benefit.
  • Explore mechanisms to encourage alignment between company and societal aims (e.g., fair licensing and pricing commitments, preferential health system access).

We conclude that there are good reasons to grant for-profit companies access to medical data if they meet certain conditions: among others they need to respect patients’ informational rights and their actions need to advance the public interest in better healthcare.

 

Paper title: Patient data for companies? – An ethical framework for sharing patients’ data with for-profit  companies for research

Authors: Winkler EC1, Jungkunz M2, Lotz V1, Thorogood A3, Schickhardt C2

Affiliations:

  1. University Hospital Heidelberg, Section for Translational Medical Ethics, Department of Medical Oncology, National Center for Tumor Diseases, Heidelberg, Germany
  1. German Cancer Research Center, Section for Translational Medical Ethics, National Center for Tumor Diseases, Heidelberg, Germany
  2. Terry Fox Research Institute, Vancouver, BC, CAN

Competing interests: ECW and CS have been receiving grants by the German Ministry of Education and Research (BMBF) in the frame of the German Medical Informatics Initiative (MII) and have been involved in the Working Group “Consent” of the MII

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Should we routinely reinterpret genomic results?

By Gabriel Watts and Ainsley J. Newson.

Data obtained from genomic sequencing has an interesting quality. Unlike most other kinds of health results, the stored information remains accurate over time, because it reflects a largely stable property of our bodies: our DNA.

Of course, during this time, sequencing methods themselves are likely to have advanced further such that new sequence data will be of better quality. Much in the same way that the resolution on a phone camera picture from 2013 is not as good as one from today – indeed, we are already seeing changes to high-throughput DNA sequencing quality with the advent of long-read sequencing. But still, that present day sequence data can retain diagnostic validity for as long as a decade is already exceptional. In our paper in the Journal of Medical Ethics, we refer to this property as the ‘diagnostic durability’ of genomic data.

Another important aspect of genomic information is that while the sequencing data itself is stable, the interpretation of that data can be quite dynamic, and may change within a short space of time. This means a result delivered to a patient at one point in time may have a different interpretation later on.

For patients who receive results such as ‘no pathogenic (disease-causing) variant identified’ or who are told they have a ‘variant of uncertain significance (VUS)’, the changing status of this result can be significant. If a finding is re-graded, it may open up new treatment options that they couldn’t previously access. A result can also go the other way, to benign from VUS.

These attributes of genomic data have important implications for the responsible implementation of genomic testing in health. One question is: should laboratories or clinicians routinely go back to the data they hold for patients with null or VUS results, to see if a new interpretation is possible? We consider this question in our paper.

An immediate issue here is whether routine reanalysis is even feasible. On the one hand, doing this is known to increase the ‘diagnostic yield’ of genomic testing: more patients receive definitive information that can inform their treatment. Yet on the other hand, until automation of reanalysis is in place (and this is coming) this process is time- and resource-intensive, and likely beyond the majority of health systems to provide at large scale.

One way around this limitation is to only provide reanalysis to those who ask for it. But this is likely to limit this benefit to those who know to do it, or to ask for it, and so raises equity concerns.

One part of reanalysis, however, is reinterpretation of variant classifications. This process can achieve increased diagnostic yields in a comparable way to a detailed individual reanalysis. But it is more sustainable because it occurs at the level of classes of variant rather than individual patient DNA sequences. As such, routine reinterpretation of variant classifications may be more feasible at scale, at least in the short to medium term.

Given this, do laboratories or clinicians have an obligation to undertake routine reinterpretation of variant classifications as a part of the responsible implementation of genomic health care?

In our paper we argue against the existence of any general duty to reinterpret genomic variant classifications. Yet, we contend that a restricted duty to reinterpret ought to be recognised.

Our initial motivation was drawn from the intuitive pull of the position we argue against. It is undoubtedly ideal that diagnostic laboratories routinely reinterpret all their variant classifications, in order to keep up with the rapid changes in our understanding of genomic testing results.

It is a different question, however, whether there is a moral duty to do so. At issue here is whether the potential benefits of routinely reinterpreting genomic variant classifications is likely to lead to a valid diagnosis for any particular patient. If not, then it is arguably better to invest resources in preparing patients for the high likelihood that genomic testing will produce results that are uncertain, and that are statistically unlikely to become clinically relevant in the future, than to hold out of hope of a statistically unlikely diagnosis through regular variant reinterpretation.

To be clear, we are not arguing that we should not aim to develop diagnostic systems on which all genomic variant classifications are routinely reinterpreted. For instance, developing diagnostic systems that automate the various elements of reanalysis – including reinterpretation of variants classifications, but also the re-prioritisation of previously unanalysed sections of a patient’s genome, as well as the re-annotation of sequence data – is a morally laudable aim.

What we do argue is that the best healthcare systems need to be developed within the limits of what is currently or imminently feasible. As automation expands, the obligation to reanalyse may become actual. Our point is that we best not confuse this with an obligation arising from certain peculiar properties of genomic sequencing data. For any obligations here only stretch so far, and better warrant investment in patient counselling concerning the inherent uncertainty of genomic testing than investment in the routine reinterpretation of all variant classifications.

 

Paper title: Is there a duty to routinely reinterpret genomic variant classifications?

Authors: Gabriel Watts, Ainsley J Newson

Affiliations: Sydney Health Ethics, University of Sydney – Australian Genomics

Competing interests: None declared

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Does our preoccupation with resilience mean we must tolerate the morally intolerable?

By Rebecca Farrington, Louise Tomkow, Gabrielle Prager, and Kitty Worthing.

Healthcare professionals are increasingly expected to be hardy and ‘suck it up’ to survive in complex and demoralising workplaces. As NHS clinicians, we saw staffing shortages and limited resources firsthand during the COVID-19 pandemic. These experiences magnified our scepticism about the onus on us, as individuals, to be ‘resilient’ as a solution to both the workforce crisis and wider societal problems.

Our paper ‘In critique of moral resilience’ describes the responses of NHS staff faced with navigating COVID-19 and caring for one of the most disadvantaged groups in our society – people seeking asylum housed in contingency accommodation. The staff we interviewed provided a social commentary on the state-sponsored neglect of vulnerable migrants in the UK. We don’t overlook this, but we focus on healthcare professionals’ understanding, responses and negotiation of their roles in this ‘Hostile Environment’.

Resilience was clearly important to staff for self-preservation, but so was an ability to see the limits of a biomedical approach to social suffering. The concept of moral resilience helped to unpick this but was not enough to describe the ideological changes and challenges to systems made by staff using their new insights. They did put up with the difficult bits of their work, and we describe how they survived. However, these coping actions alone did nothing to change the status quo in the political and social systems causing the underlying health problems. Some staff we interviewed made positive changes in the lives of the people seeking asylum through activism to improve their health and wellbeing. We found that the concept of resilience failed to capture these important moral actions: advocating beyond the clinic, beyond just doing their best on the job.

The popular focus on resilience is here to stay in much of our work and home lives, but we encourage caution in using it as a broad-brush solution to complex problems. Healthcare providers who see and yet continue morally problematic care in the name of resilience might be thought of as complicit in social suffering. Does moral resilience just promote acceptance of the status quo, even when it feels unbearable? What cost does this fixation on resilience bring to both care providers and patients?

Reflecting on our work in clinical medicine, research, and medical advocacy, we recognise that some of our most effective improvements to social conditions have been through collective action and joint resistance. In times of increasing moral outrage, such as against the UK government’s illegal migration bill, this feels a more appropriate response than just sucking it up in the name of resilience in the hope that we will survive.

 

Paper: In critique of moral resilience: UK healthcare professionals’ experiences working with asylum applicants housed in contingency accommodation during the COVID-19 pandemic

Authors: Louise Tomkow1, Gabrielle Prager1, Kitty Worthing2, Rebecca Farrington1

Affiliations:

1. Faculty Biology, Medicine and HealthThe University of ManchesterManchester, UK
2. Sheffield Children’s HospitalSheffield, UK
Competing interests: None declared.

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Overcoming impediments to medically assisted dying: A signal for another approach?

By Juergen Dankwort.

The proposal to provide assistance with voluntary assisted dying (VAD) has grown significantly over the past two decades at an accelerating rate. Right-to-die movement societies and organizations now number over 80 from around the world, 58 of which are members of the World Federation of Right to Die Societies. However, most are also increasingly beset with formidable challenges opposing their advances that raise profound ethical, moral and legal considerations.

The prevalent approach towards VAD

A review of these assisted dying regimes show how they were set up through legislative acts often resulting from initial court challenges to an existing assisted dying prohibition within that country’s criminal code. They reveal a common paradigmatic model whereby the criminal act remained intact with amendments added establishing a legislated framework to allow a service under specifically designated conditions and exempting the providers from punishment.

Generally, the legal criterion for accessing such a medically-centred service requires a person to be suffering intolerably from an existing, irremediable condition defined within legislated parameters, establishing who may access them, best practices, where and when they can be done, and who may perform them.

While not alone, Canada’s often-vaunted medically assisted dying regime (also known as MAID), implemented in 2016, is exemplary of this development with attendant massive challenges facing it. Its formulation illustrates an attempt to balance a previously court-declared constitutional right to life, liberty and security of the person with a perceived societal harm resulting from a state-sanctioned service to assisted dying.

Such legislated regimes have since been challenged legally numerous times by persons refused access, while featuring alarming stories in the media when access was sought and granted. A backlash to VAD has gained recent traction.

Traditional assisted dying opponents, including the orthodox religious, some disability groups, and conservative politicians who often troll to their populist base, are joined by additional academics and some physicians, providing more legitimacy with compelling arguments at stopping any wider access to a state-initiated and financially-covered national health service.

Germany breaks tradition

In a remarkable judgment by the German Federal Constitutional Court in February 2020, regarding assisted suicide, a ground-breaking option for any country or jurisdiction contemplating the creation of an assisted dying regime was identified that may well avoid much of the controversy and many of the challenges faced by existing ones. It does so by revealing a pathway to set up the service based on an entirely different orientation and approach from the existing one that began decades earlier in Europe, and later largely copied by others.

The German Court’s ruling stated for the first time that matters of quality of life and degrees of suffering are wholly subjective and that governments should therefore not prescribe nor proscribe assisted dying access based on categories of populations defined by such individually-experienced life-determinants because such restrictions would violate entrenched principles regarding personal autonomy and the liberal foundation separating state and personhood in pluralist societies. A VAD regime built on this premise could then also avoid all expressed objection to assisted suicide, no longer based on those normative criteria.

A recent study out of Europe contrasting two ways of how assisted dying services function, detail the actual process deciding for whom and when the service may be administered and who can perform it. The legislated regime of Belgium – a model used for Canada’s – was compared with the process in Switzerland.

Importantly, no legislated system was erected in Switzerland that specifies through amendments or exceptions how, when, by, and for whom it may be done. It has remained unlawful for decades with the simple caveat if it is done to exploit another vulnerable person. Several salient differences were observed by the researchers that also reveal the challenges presently facing existing VAD regimes. The Swiss model featured:

  • less hierarchical structure in decision-making,
  • less institutionalized through legislation,
  • less subject to resulting cultural and political opposition,
  • unencumbered by delays to service based on lengthy court decisions regarding eligibility, best practice, who was authorized to perform the service,
  • more pliant as the normative decisions for service provision and administration could be determined by those immediately implicated on a case-by-case basis in line with changing health determinants

While claims that Canada has become the wild west for assisted dying with catastrophic consequences is arguably exaggerated given its stringent access requirements, it is nevertheless exemplary of a heightened political drama resulting from the path it took historically that set it on its stormy course.

That begs the question if the many countries and jurisdictions now considering a VAD gateway might not consider taking a different route illustrated by the current Swiss way, recently given a legal foundation by its European neighbour.

Though convincing evidence is still lacking on how expanding assisted dying allegedly leads to a slippery slope of harming the most vulnerable, as reported by some right-to-die societies and as shown in studies, opposition and barriers to it will likely invite more impulsive, desperate suicides that may traumatize and endanger friends, family, and first responders.

 

Author:  Juergen Dankwort

Affiliations: Associate, University of West Virginia Research Center on Violence

Competing interests: Member, Right to Die Society of Canada; Supporter, World Federation of Right to Die Societies; Coordinator, Canada chapter, Exit International.

Declaration:

The author was not paid by any organization, group, government or individual in conducting research for and writing this article.

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College vaccine mandates benefitted students and society

By Leo Lam and Taylor Nichols.

The COVID-19 pandemic has greatly disrupted the operation of our society. To cope with a novel virus to which humans had no immunity, public health authorities took a multitude of actions such as lockdowns, mandates on non-pharmaceutical interventions such as masks, and later on vaccines in specific circumstances to protect the population. Naturally, whenever mandatory actions are enforced, ethical questions regarding liberty and the question of choice arise and the answers are not always clear.

One way to help guide us through such an ethical dilemma is to perform a risk and benefit analysis on the individuals and the community affected by these actions. This is also not a simple task as some risks/benefits may be superficially qualitative and as such, quantitative comparisons must be formulated carefully to avoid bias and therefore skewing the outcome of the analysis. Ethical positions must be informed by scientifically justifiable facts, not cherry-picked values that support preconceived notions.

In another word, the risk profiles for the risk and benefit must be closely matched for the analysis to be fair, defensible, and scientifically justifiable. Without this consideration, merely comparing numbers may create an illusion that sways the argument one way or the other, while the actions that optimally benefit society and individuals languish in the noise.

Vaccine mandates, especially those that apply to college campuses, have been a point of contention among experts and general society because the risk and benefit analysis is not as clear cut for the college-aged population as, for example, those who are over 65. The college-aged group does not get as sick when infected, and the death rate is lower. Yet regardless of age, some risks do exist and such risks must be carefully balanced against the perceived lowering benefit as we progress down the age groups.

To perform a robust analysis for this younger age group, details matter when it comes to examining the risk profiles. On the benefit side for this age group in decreasing severity, vaccines reduce the number of deaths, reduce the number of cases of severe diseases that require resource-intensive hospitalizations, reduce the overall number of cases, and lower the chance of Long COVID even for mild cases. Each one of these benefits reflects different levels of resource consumption for treatments and individual suffering with long-term and short-term implications. It is also clear that there are public health benefits that affect other age groups when this group is vaccinated. On the negative side, receiving the vaccines comes with risks such as Severe Adverse Events (SAEs), reactogenicity, and myocarditis, especially for the males in the group. Each one of these risks also requires the consumption of resources to treat and represent varying levels of personal suffering.

For example, using the number of cases to quantify the risk of SAEs seems straightforward, but the severity of such SAEs would determine which benefits should be compared. The SAEs reported in the Pfizer vaccine trial were “moderate persistent tachycardia, moderate transient elevated hepatic enzymes, and mild elevated hepatic enzymes” all of which were reported to be transient, self-resolved events that did not require hospitalization in the trial. It would be, therefore, inappropriate to compare this low level of severity to death or even to hospitalized cases of COVID given the differential in treatment resources and suffering. While still imperfect, it would be more reasonable to compare it to the number of COVID cases prevented. There is a spectrum of severity in COVID cases, some resources are still needed to treat on average, and with Long COVID being a non-insignificant possible outcome, the risk profile of a COVID case is still higher than the reported SAEs. Here, the precautionary principle applies, and erring on underestimating the benefits is not unreasonable to prevent harm.

Our paper that examines the ethics of college vaccine mandates uses the same process to identify the correct comparison pairs for SAEs, reactogenicity, and the chance of myocarditis. It can be demonstrated that the resources saved via vaccine mandates far exceed the resources needed to treat the risks and that the population in that age group benefits from vaccination far more than the risk they are exposed to from vaccination when risk profiles on both sides are carefully balanced. Attending college is also a privilege, not a right. We concluded that the vaccine mandates carry more benefits than risks on both an individual level and on a societal scale on quantifiable grounds. And thus, college mandates are ethical.

 

Paper title: The ethics of college vaccine mandates, using reasonable comparisons

Authors: Leo Lam, Taylor Nichols

Affiliations: University of Washington, University of San Francisco

Competing interests: None

Social media accounts of post authors: @SeattleiteLeo @tnicholsmd

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To breach or not to breach a patient’s confidentiality? A case study in the colorectal clinic

By Daniel Sokol.

A patient presents to the colorectal clinic with bleeding from the rectum.  “Doctor”, he says sheepishly, “I must tell you that I have sex with my dog.”

Intercourse with an animal, once known as ‘buggery with an animal’, is a criminal offence under s69 of the Sexual Offences Act 2003, with a maximum penalty on conviction of 2 years’ imprisonment.  The offence covers both the intentional penetration of a living animal’s vagina or anus with the offender’s penis, or intentionally causing or allowing one’s anus or vagina to be penetrated by the penis of a living animal.

Should the doctor breach the patient’s confidentiality and inform the relevant authorities?

The duty of confidentiality appears in the Hippocratic Oath and has been described by the 17th century French doctor, Jean Bernier, as the “soul of medicine”.[i]  The French call it “le secret médical” (“medical secret”), stressing the link between secrets and confidentiality.  There is a strong public interest in the maintenance of this duty.  Without it, the all-important trust between doctor and patient will be eroded.  Patients may be reluctant to share private information with their doctors, or may not attend their doctor at all, with adverse consequences to their health.  Would this patient have spoken so freely without a belief that the doctor was duty-bound to keep his secret?  Maintaining confidentiality may therefore benefit the health of the patient and, more broadly, society.

Yet, however strong, the duty is not absolute.  There are times when a doctor must, by law, disclose a patient’s information, as in the case of certain notifiable diseases and under terrorism legislation.

In this case, the doctor is under no statutory obligation to breach the patient’s confidences.  The question is whether the doctor may do so in the public interest.  There is, in my view, such an interest in protecting a dog from the likely harm, whether physical or psychological, of sex with a human and bringing offenders to justice.

On the other end of the scales, aside from the public interest in preserving a strong duty of confidentiality, must be placed the patient’s potential harm or distress from the disclosure, including the loss of his liberty in the event of a custodial sentence, financial loss if fined, and the loss of trust in the medical profession.  In my experience, patients whose confidentiality has been breached regard it as a betrayal, a break of an implicit promise of secrecy, and develop an antipathy to doctors.

In its guidance, the General Medical Council permits disclosure of confidential information if this is likely to be necessary for the prevention, detection or prosecution of “serious crime”. There is no definition of this term, although there is specific mention of crimes against the person.  While offences such as murder, manslaughter, rape, kidnapping, child abuse, and grievous bodily harm would plainly fall within the category of serious crime, it is doubtful that intercourse with an animal, whose ordinary sentence would result in a community order rather than imprisonment, would so fall.  The Department of Health’s supplementary guidance on public interest disclosures, published in November 2010, noted that a serious crime will “likely include…crimes which carry a five-year minimum prison sentence but may also include other acts that have a high impact on the victim.”

In my opinion, faced with this ethical conundrum, the doctor should have sought advice from colleagues, the Trust’s ethics committee, their defence organisation, or the British Medical Association’s ethics hotline, to help conduct the balancing exercise above.  If consulted at the time, I would have advised the doctor to maintain the patient’s confidentiality.  The public interest in disclosure does not appear compelling enough to tip the scales away from the strong Hippocratic duty to keep the patient’s secrets.

The doctor should nonetheless advise the patient of the medical risks of his sexual activity and recommend referral to a mental health professional.

[1] Bernier, J. Essais de médecine (Paris, Simon Langronne, 1689), p.268

 

Author: Daniel Sokol

Affiliations: 12 King’s Bench Walk Chambers, London, UK; medical ethicist

Declarations: This article does not constitute legal advice and should not be used as a substitute for such advice.

Competing interests: None declared.

Social media account of post author@DanielSokol9Website

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Abortion and regret

By Anthony McCarthy

Some women regret their abortions. Does this tell us anything interesting about whether abortion is, morally or prudentially, a choice worth making?

A number of empirical papers have assessed the prevalence of abortion regret, reporting that a large majority of women do not regret their abortions. While use of the Turnaway Study data set has been subjected to some critique, not least because of the high dropout rate, these papers have undoubtedly received huge media coverage. Much less well-covered is a study by some of the same researchers using the same data set which found that 96 per cent of women who were refused abortions did not regret having the child 5 years on.

One serious attempt to deal with the subject of abortion regret in terms of moral philosophy is Kate Greasley’s ground-breaking 2012 paper in the Journal of Medical Ethics, to which I recently responded in Theoretical Medicine and Bioethics. Greasley argues that regret over abortion decisions does not neatly track moral and rational justification. She suggests that any discrepancy there may possibly be between regret for abortion and for giving birth can be readily explained by the ‘affirmation dynamic’, an idea deriving from the philosopher RJ Wallace. Adopting this idea, Greasley explains that a pregnant woman will be subject to a parental duty to affirm the life of her child, which will preclude regret over her reproductive choice…there may have been serious objections to continuing the pregnancy. If this was the case, then such objections would continue to stand even if the girl chose to complete her pregnancy, thus finding herself in a position where she could not regret her choice…If the girl has her baby, we know that the non-availability of regret has nothing to do with justification. The presence of regret in the abortion scenario does not therefore take on justificatory significance simply because, had she kept the pregnancy, she would eventually have to affirm her decision.

Greasley argues that a woman who gives birth is morally obligated to love and value her child and therefore (Greasley thinks) is obligated not to regret a decision to have the child – she cannot regret a decision with an outcome she welcomes and should welcome. No such obligation exists for a woman not to regret her abortion.

In response to this, regretting a choice and regretting its outcome can be separated here as elsewhere. For example, can a woman not regret her abortion simply because it has resulted in a new child whom she loves and who would not have existed without the prior abortion? In the same way, a woman who conceived deliberately as a young teenager, a case discussed by Greasley, can reasonably love and welcome her child while still believing she was wrong to seek conception in less than adequate circumstances and morally regretting that she did so.

Moreover, simply because it may be psychologically difficult for a woman to regret having her baby does not mean her testimony should be set aside. Quite generally, if one group of people is, for reasons separate from the justification of a choice they made, less likely to have an opportunity to experience regret, this does not mean that any regret experienced by a contrast group is necessarily unreasonable, or that the possibility of such regret should not influence others’ decision-making.

Think of a group of soldiers who initially believe that use of ‘enhanced interrogation techniques’ is justified in certain circumstances where it can save lives by preventing acts of terrorism. If some are successful in saving lives this way, it may be harder for them to develop regrets – the success insulates them from such feelings – than it is for those who fail to extract information using the same techniques. But that does not mean that any regrets of the second group are irrelevant as evidence as to whether use of the techniques was morally justified. Such testimony can at least assist with discerning whether these techniques are right or wrong, even if those expressing regret are smaller in number than those who express no regret.

While regret is not morally infallible – justified actions can be regretted – regret for actions that end lives or otherwise cause serious harm should be listened to with particular care. And indeed, Greasley herself acknowledges that if at least “most people” experience regret at a decision to end a life, this is something that might “give one pause for thought.”

Greasley believes avoiding regret can be a reason to act or refrain from acting, even if regret’s “persuasive power only derives from the belief that regret will reflect justification”.  However, post-abortion regret is not a mere feeling but relates to a value or values: the woman who regrets her abortion will likely regret ‘what she missed out on’ and/or ‘what her fetus missed out on’ due to the choice she made and this will (or may) reflect a rational judgement as she sees it. In contrast, a woman who goes on to have her baby – even after being denied an abortion –  may regret aspects of her situation but is unlikely to regret having the child.

Even if most women do not regret their abortions, this does not deprive of justificatory moral significance, as Greasley appears to suggest (“regret has very little, if anything, to say about abortion’s moral or rational standing”), the reports of those who do regret their abortions. Nor does it deprive of justificatory moral significance reports of sadness, grief and guilt on the part of women who nonetheless deny regretting their abortions. In making a decision for herself, a pregnant woman who wants to avoid both regret (acknowledged or unacknowledged) and feelings of sadness, grief and guilt is justified in allowing the experience of women who undergo any of these reactions to inform her own decision.

 

Author: Anthony McCarthy

Affiliation: Bios Centre, London, UK

Competing interests: None declared.

Social media accounts:

https://twitter.com/BiosCentreUK

https://www.facebook.com/BiosCentreUK

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Re-thinking consent for treatment: clinical interests and the public interest

By Abeezar I. Sarela.

In its recent guidance on consent, the General Medical Council (GMC) advises doctors to not provide treatment that ‘you (the doctor) don’t think would be in their (the patient’s) clinical interests’. It follows that doctors should only provide treatments that are in the patient’s clinical interests. But, what exactly is meant by ‘clinical interests’?

The GMC does not explain the term. In practice, it is sometimes confused with ‘best interests’. However, best interests is a legal term that applies specifically to making decisions for people who lack the capacity to do so for themselves. For example, oncologists might consider that either chemotherapy A or chemotherapy B could be in the clinical interests of a patient without capacity. Best interest decision-making would then involve choosing between A and B, or avoiding any chemotherapy and giving supportive care only. Whereas, patients with capacity would make these choices for themselves and do not need others to decide their best interests.

The difference between clinical interests and best interests is similar to that between setting a menu and then choosing from that menu. Clinical interests set the menu of treatment options that is available to a patient. Patients can then choose any option from this menu or decline all options, regardless of the consequences, because we all have a right of self-determination. But, do patients have a right to participate in setting the menu, too? Some might say yes. They would argue that treatment availability comes down to a matter of informed consent, through a process of shared decision-making (SDM) between the doctor and the patient.

However, senior judges have been clear that consent is valid only if the proposed treatment is, in the first place, ‘proper’. If the treatment is not proper, then the patient’s consent is meaningless, regardless of the sharing of information. In other words, setting the menu is not a matter for SDM. Rather, informed consent has two distinct stages. In the first stage, the doctor has to identify treatments that are proper (reasonable or available) for that patient. Then, the doctor has to involve the patient in the choosing between available treatments (or not having any treatment). It is this second stage that requires SDM: a dialogue about the menu of available treatments from the first stage.

What is it that makes a treatment available in the first place? Judges have explained that for a treatment to be available it has to be in the ‘public interest’. This turn to public interest can be justified in various ways. In a civilised society, we all (the ‘public’) have an interest in each other’s welfare. And, in some cases, the public interest can override an individual’s own wishes. Furthermore, in a publicly-funded health service it is inescapable that making treatment available to one person reduces resources for others. Consequently, it is in the public interest to set limits on availability of treatment.

The GMC would seem to have re-phrased ‘public interest’ as ‘clinical interests’. The endpoint of both is the same: the identification of available treatments. Thus, in advising doctors to think about a patient’s clinical interests, the GMC is actually asking doctors to consider the public interest. The GMC leaves this task to the professional judgment of doctors; and judges have done similarly. This approach is consistent with a well-established sociological argument that the public grants the medical profession with the authority to make certain decisions on its behalf. As doctors, let’s celebrate this sociological mandate and strive to serve the public. Or let’s challenge it, and find an alternative way. But, in the meanwhile, let’s not hide behind smokescreens of SDM and consent to decide about the availability of treatment.

Author: Abeezar I. Sarela

Affiliation: Department of Surgery, The Leeds Teaching Hospitals NHS Trust.

Competing interests: None declared

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Have ethicists overlooked obvious benefits of financial incentives for antipsychotics?

By Nathan Hodson.

It is late evening on an acute psychiatry ward and I’m the on-call doctor responsible for clerking a new patient with acute psychosis. I look in the notes and see that despite a history of detention for paranoid schizophrenia, he has been well on an antipsychotic depot for 5 years. Why relapse now? Then I find the most recent letter and discover that he stopped accepting his depot two months ago and rapidly declined. This terrible pattern is a common occurrence in acute psychiatry. Patients are deprived of their liberty and detained under the Mental Health Act because of depot non-adherence. Financial incentives may be one way to address this problem but progress has been slow.

Two medium-sized RCTs have shown that adherence to antipsychotic depot injections is improved when patients are offered a small financial incentive (worth roughly 2 and a half hours at the minimum wage). These studies are conducted among patients who have discussed depot treatment and agreed to it but are at risk of missing doses perhaps due to distractions or inconvenience. Nevertheless, a range of ethical and practical issues have been raised in empirical and philosophical studies. These questions are fascinating and important and while there are some answers emerging from the literature, many questions have not been fully addressed. We catalogued the full range of published objections in our recent systematic review.

Some claims about financial incentives for antipsychotics are difficult to evaluate because there is no useful data. For example, we do not know whether incentives improve mental health outcomes, reduce hospitalization, or benefit patients with good compliance. There have been no studies comparing different incentive designs despite extensive evidence that different incentive designs have different results. Similarly, there is no evidence whether incentives mean patients explore their options less assiduously or hide adverse effects. Overall there is no useful evidence regarding cost effectiveness.

However, many questions which have been raised about financial incentives have been answered by empirical study. Can incentives increase depot adherence? Yes (in both RCTs). Can they increase overall engagement with treatment? Yes (44% of the time). Can they upset patients not offered incentives? Occasionally (one report of a patient missing a dose in protest from all studies so far). Does withdrawing incentives undermine intrinsic motivation and adherence? No (no difference between incentive and control group in intrinsic motivation). Will patients become financially dependent? No (not reported in any study so far).

But we also identified certain objections that were simply not amenable to direct empirical study. These included impact on patient dignity and autonomy, coercion, exploitation, and disrespect for settled decisions. These questions require philosophical research with empirical scaffolding.

Interestingly, a key part of that empirical scaffolding already exists. Our new paper Take patients seriously when they say financial incentives help with adherence reviews evidence to support the simple but important observation that patients view incentives favourably. Compared to mental health staff, patients are much more positive about incentives. They report that they enjoy having extra money. They dislike the idea of non-cash incentives. Altogether, patients are – and it is not surprising in retrospect – hugely positive about receiving some spending money for doing something they were probably going to do anyway. It is striking that mental health staff (just like me and my colleagues) overlooked this benefit

Patients also took a surprising moral view. Unlike mental health staff, they endorsed the idea that financial incentives are an appropriate reward for good behaviour and that, in this case, accepting their antipsychotic depot constitutes good behaviour. This view is more in keeping with Kohlberg’s preconventional stage of moral development where people are driven by reward and punishment. I think many ethicists would balk at this particular justice-based argument for incentivising people to accept treatment which is their best chance at staying well and out of hospital.

But in another sense, many of us view healthy actions as morally good. Working out, staying hydrated, avoiding sugary foods – we attribute moral value to them all. Does that mean we should all get incentives? Maybe not. But it does explain why incentives make sense to patients with schizophrenia. We could construe such incentives as celebrations or well dones. The fact that this view seems to be meaningful to patients perhaps suggests ethicists have overlooked a very simple dynamic in the relationship between psychiatrists and psychotic patients and the exact meaning given to any financial incentive.

It is nice to receive a celebration, or acknowledgement, that you have done something good. Evidence given by patients reveals a positive regard for incentives and this perhaps surprising ethical interpretation. In light of these findings, it becomes more difficult (although not impossible) to make the case that incentives are problematically paternalist or coercive. I suggest that these surprising findings do, however, make a prima facie case for further research into financial incentives for depot antipsychotics as one means of reducing psychotic relapses like the ones I see in hospital. The onus is on opponents of financial incentives for antipsychotic treatment to present arguments which outweigh patient preference.

Author: Nathan Hodson

Affiliations: Academic Clinical Fellow, Unit of Mental Health and Wellbeing, Warwick Medical School

Competing interests: None

Social media account of post author: @nathanhodson

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It seems important to study public values regarding priority setting principles, but why exactly?

By Erik Gustavsson and Lars Lindblom.

If you visit a conference or workshop on priority setting there will most certainly be several slots on empirical studies exploring public values about principles for priority setting. Over the last 20 years, there has been numerous such studies, and the interest among researchers to perform such studies accentuated during the pandemic. If you attend one of these slots and stay around for the discussion you will notice that questions and comments tend to focus on methodological design. Indeed, these issues are of general importance for the research community – but why are the results from these studies relevant? If you have some background in ethics you might, for example, wonder what weight should be ascribed to these studies when making moral judgments about how priority setting should be done. When one faces this question, one may start to reason along the following lines.

On the one hand, public values cannot reasonably tell the whole story about the ethical question: how scarce health care resources should be distributed. For example, suppose a majority in your country believe that people with red hair should be denied intensive care. Such a conclusion seems counterintuitive, to say the least. The mere fact that people express discriminatory views cannot reasonably have anything to do with the moral rightness of such views. On the other hand, public values cannot reasonably have nothing to say about how scarce resources should be distributed. This seems especially strange in a democratic society. Some people think that this discussion can stop here. The conclusion is quite straightforward they say: public values carry some weight for the moral question about how resources should be distributed. We found it difficult to accept this conclusion.

Therefore, we went back to Rawls’ notion of reflective equilibrium. Drawing on these Rawlsian ideas, we discuss the relevance and roles that empirical studies may plausibly have for the justification of principles for priority setting. Our paper develops a framework that can articulate these different roles in relation to empirical studies of public values and make explicit how different empirical results may have different implications for justification.

The framework distinguishes between four steps in the reflective equilibrium process: i) filtering moral judgements, ii) formulating principles, iii) working back and forth between (i) and (ii), and iv) from the individual to the social.

We also realized that it adds to the richness of the framework to distinguish between the content of moral judgements and the process according to which people arrive at those judgements. Four times two is eight which gave us a matrix of eight positions. Accordingly, there are at least eight different ways in which empirical studies of moral judgment may have relevance for moral justification.

With this matrix in hand, we show, for all eight of the positions in this matrix, how empirical results can inform moral deliberation. This, in turn, indicates several perhaps surprising ways that ethicists should be interested in empirical results. For instance, empirical research on the content of peoples’ judgements regarding priority setting forms input into the process of moral deliberation. Moreover, empirical work with relevance for the process of formulating principles will be important for that stage of the reflective equilibrium process. The matrix also suggests a number of interesting avenues for empirical researchers to pursue in order to enrich normative work on priority setting. For instance, empirical research on possible propensities to commit fallacies in the process of working back and forth between judgements and principles regarding priority setting would potentially seem very useful. Moving from the individual to the social level, further work on the content of social equilibria regarding priority setting would also seem highly important. The answer, then, to the question of why it would be important to study public values regarding priority setting principles is that empirical results play important roles at all levels of moral deliberation.

 

Title of paper: Justification of principles for health care priority setting – the relevance and roles of empirical studies exploring public values

Authors: Erik Gustavsson [1, 2], Lars Lindblom [1],

  1. Division of Philosophy and Applied Ethics, Department of Culture and Society; Linköping University, Sweden.
  2. The National Centre for Priorities in Health, Department of Health, Medicine and Caring Sciences, Linköping University, Sweden.

Competing interests

The authors declare that they have no competing interests.

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The furore around whole bodily gestational donation: a tale of misplaced anger?

By Anna Nelson.

Prompted by a sensationalist headline in the Daily Mail, there has been a furore on social media around an article published last year by bioethicist Anna Smajdor in which she defends ‘Whole Bodily Gestational Donation’ (WBGD). Put simply WBGD means that, with prior consent, the bodies of women in a permanent vegetative state could be used to gestate pregnancies on behalf of others.

The purpose of this blog is not to engage with the ethics of this proposal, nor is it to suggest that the paper on WBGD ought not to have been published (on this latter point, see J.Y. Lee). Rather, this blog reflects upon the widespread public response to the media reports on Smajdor’s article, and suggests that some of this anger could be more usefully focussed on present day challenges which threaten the rights and safety of women and birthing people.

Understandably, many of the concerns raised by social media users in response to WBGD were explicitly feminist in nature and highlighted worries about potential harm to women – physical harm to the bodies of the donor, harm to reproductive and bodily autonomy where coercion or lack of information undermines consent to such procedures, and broader, socio-cultural harm attached to the risk of WBGD compounding and perceptions of women as foetal environments.

I am not looking to address the legitimacy of such concerns, nor do I question people’s right to express these. Rather, I question why a theoretical exploration of a speculative aspect of reproductive science has attracted so much more attention and outrage – both by those in the media, and by those responding on social media – than the very real and very present way that women and birthing people are being harmed by the current under-investment in maternity services. I argue that those of us who are rightly worried about the way that future scientific developments could interact with society and medical institutions to sustain and perpetuate harm to women, need to have (at least) equal concern for that which is happening right now.

The disparity in outrage was powerfully illustrated by the fact that, only four days after WBGD came to widespread public attention, a shocking and heart-breaking story was published on BBC News, outlining how delays in post-birth treatment and poor interpretation services may have contributed to the post-partum death of a woman in Gloucester. While it would be inaccurate to suggest that this story went unnoticed, it received only a fraction of the attention that was prompted by Smajdor’s theoretical paper – both from the media and from the wider public.

This incident was not an isolated tragedy. Last year saw the publication of the final Ockenden Report on the independent investigation into maternity services at Shrewsbury and Telford Hospital NHS Trust, and the Kirkup Report on the independent investigation into maternity and neonatal services in East Kent. In both instances it was concluded that serious failings had resulted in avoidable harm to birthing women, their babies and their families.

Particularly shocking was the evidence laid out in the Kirkup Report about the “basic lack of kindness, care and understanding” being shown to “women and their families” (p48) and the failure to “ensure or preserve women’s dignity or meet their basic needs” (p50). Alongside this, both the campaign group FIVExMORE and the charity Birthrights published damning reports which highlighted the physical and psychological harm caused by systemic racism within the maternity services:

“There was one point in my labour right near the end where I remember looking at [my Partner] and saying, I’m going to be a Black statistic. I was so scared, and the epidural hadn’t come so I felt like people weren’t listening to me, it had been days…’

These reports clearly demonstrate that feminists are right to worry about the harms faced by women in the reproductive sphere – be those harms to physical safety, to bodily autonomy, to dignity or to psychological wellbeing. Yet, none of these issues attracted nearly as much attention or widespread public outrage as the theoretical discussion of WBGD. This, I suggest, illustrates that the groundswell of anger which was seen on social media following news coverage of Smajdor’s paper was somewhat misplaced; as reports about the ongoing, harmful experiences of women and others who birth within the current system do not attract the same levels of attention and public comment.

Of course, we should debate future scientific developments before they come to pass, and of course it is vital that we parse the potential intended and unintended consequences thereof (as someone whose PhD looked at partial ectogenesis, a speculative reproductive development, it would be incredibly hypocritical of me to suggest otherwise!). However, it is imperative that the same scrutiny is applied to the less sensational but arguably more materially significant harms which are experienced by women and birthing people, and their families, every day as a result of a maternity system which is underfunded, understaffed and undervalued.

While advances in reproductive science and technology do carry the potential to create new harms, it is more likely that they will serve to compound and magnify existing problems. Therefore, when we are thinking about these developments it is important not to lose sight of the forest for the trees. In order to truly protect women (and others who gestate), it would be helpful to direct some of the very vocal anger which was whipped up by Smajdor’s paper towards the very present and pressing fight to fund and sustain a maternity system which centres the dignity and safety of all who birth.

Author: Anna Nelson

Affiliation: Centre for Social Ethics and Policy, Department of Law, University of Manchester

Competing interests: None declared

Social media account of post author: @Anna_Nelson95

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Developing an honesty test for doctors

By Daniel Sokol.

When not working as a barrister, I teach medical ethics to doctors who are going through disciplinary proceedings.  The majority are in trouble because of dishonest conduct.  They may have lied on a job application, cheated in a membership exam, or forged a document for personal gain.

Medical Practitioners Tribunals have often noted the difficulty of remediating dishonesty.  If a doctor harms a patient because they cannot put in a central line safely, then a practical course on this clinical skill should remedy the problem.  But what is the equivalent intervention if the failure is not a demonstrable skill but a character flaw?

My goal was to find a way of helping doctors show their knowledge and understanding of honesty.

I discovered that some employers used ‘integrity tests’ to screen suitable candidates.  However, these tests were focused on selecting productive and dependable employees and were of limited application to doctors.  Personality tests, like the HEXACO Personality Inventory, were too broad in scope, assessing honesty but also emotionality, agreeableness and conscientiousness.

Following discussions with a number of testing experts, it was decided that a situational judgement test (“SJT”) that encompassed a range of clinical and non-clinical scenarios would be best.

I worked with Rob Williams, a Chartered Psychologist with over 25 years’ experience of designing tests.  He recommended producing scenarios which asked respondents for their best and worst answers, with each correct answer scoring one mark.

I compiled 31 scenarios from a mix of my own cases and published cases of the Medical Practitioners Tribunal Service (“MPTS”).  It was important, I felt, for the scenarios to be based on actual cases to avoid the criticism of a lack of realism.

Initially, doctors were asked what they would do if faced with the scenario.  The feedback from my erstwhile PhD supervisor, Raanan Gillon, was that this would unfairly penalise those doctors who answered honestly.  Rob Williams agreed.

Doctors are therefore asked what they believe is the best and worst answer.  Although there is no guarantee that the respondents would act honestly in these scenarios, the test at least shows their capacity to distinguish right from wrong in the domain of truth-telling and honesty.

The SJTs were then sent to Simon Fanshawe, a Diversity, Equity and Inclusion consultant, to check for bias and other impropriety in the scenarios.

Next, the SJTs were tested on 12 doctors, who were not told that this was an honesty test.  A modest payment was offered to each volunteer.  After this exercise, the number of scenarios was reduced to 23.  The dominant reason for removal of a scenario was that the circumstances were too unfamiliar for the average doctor.  The second reason was excessive variation in the answers selected.  Below is an example of a discarded scenario:

After the testing phase, I contacted the MPTS to ask if tribunal members could be approached to take the test. Their anonymous answers would represent what is “right” and “wrong”.  The MPTS was reluctant and so I turned to UK-based professors of medical ethics who are also medical doctors.  The medical requirement greatly limited the number of eligible respondents but it was necessary to avoid the likely criticism that the experts were unfamiliar with the realities of clinical practice and life as a doctor.  A sum of £100 was offered for their participation.  Six professors took part.  Again, I did not present this as a test of honesty but described it as a tool to be used in the ethical training of doctors.

As a result of the professorial feedback, one scenario on practising medicine without insurance was removed.  It was deemed of limited relevance to doctors without a private practice.  The scenario appears below:

In the remaining scenarios, there was unanimous agreement in 32 answers and, for the remaining 12 answers, 5 out of 6 experts selected the same responses.

To the best of my knowledge, this test is the first honesty test for doctors.  It cost approximately £4,300 to create, excluding my time and that of my assistant.  It was funded privately.  Everyone who has seen a version of the test has been asked to maintain strict confidentiality.  Only my assistant and I know the collective answers of the Professors of Medical Ethics.  To minimise the risk of a leak, the test is only administered in person.

At the end of the ethics training, I invite the doctors to complete the test.  This takes approximately 25 minutes.  Afterwards, we discuss each scenario, spending more time on those which the doctor found trickier.

Once they have completed the test, I invite the doctors to create their own scenario, based on their circumstances.  This encourages them to think critically, and from a different vantage point, about their case.  This genial idea came from Raanan Gillon, who told me that medical students at Imperial College had been asked to conduct a similar exercise in their ethics exams.

The feedback by doctors has so far been positive, with several observing that they had encountered some of the scenarios in their practice.

Recently, I approached a commercial research organisation to administer the test to 300 UK-based doctors.  This would establish an average score, against which an individual doctor’s performance could be measured.  However, as the proposed cost was close to £42,000, I was unable to implement this stage.  It would be fascinating to administer the test to a large number of doctors and, indeed, members of the public.  How would the scores of doctors undergoing disciplinary proceedings differ, if at all, from other doctors?  Would doctors score higher in the test than members of the public?  Would there be variations in test scores within the medical profession and, if so, why?  It is an area ripe for empirical research.

 

Author: Daniel Sokol

Affiliations: 12 King’s Bench Walk Chambers, London, UK; medical ethicist

Competing interests: Daniel Sokol is the creator of the Situational Judgement Test

Social media account of post author: @DanielSokol9; Website

 

 

 

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Dobbs v Jackson Women’s Health Organization and doctors’ conscientious commitment to provide abortion care

By Alberto Giubilini, Udo Schuklenk, Francesca Minerva. Julian Savulescu.

The reversal of the 1973 Roe v Wade ruling by the US Supreme Court in the 2022 Dobbs v. Jackson Women’s Health Organization removed the Constitutional protection of women’s right to access abortion services in the US. This decision has resulted in renewed interest in the morality of conscientious commitment by health care professionals to provide abortion care.

Typically, ethical debates on conscience in health care revolve around the morality of doctors refusing to provide professional services on idiosyncratic personal conscience claims. Here the issue is different in that conscientious doctors, motivated by a commitment to professional values, might want to provide services that are arguably in their patients’ best interest, but that are illegal.

Most of the time, the type of health care we are legally entitled to coincides with what is considered good medical and medical ethics standards by relevant professional bodies. At the moment, most non-sectarian (e.g. non-religious) mainstream medical organizations in Western countries, as well as the World Medical Association support the provision of abortion care.

However, as Dobbs v Jackson Women’s Health Organization shows, professional and legal expectations sometimes come apart.

The question arises as to what professional obligations healthcare professionals are subject to in such cases, and how professional organizations’ codes of practice should handle such cases. These are the questions we address in our article.

The central professional obligation for doctors is to act in the best medical interests of their patients. On the assumption that it is at least reasonable to think that foetuses do not have a moral status that outweighs the value of women’s health and autonomy, the “best medical interest” criterion implies that at the very least doctors will be professionally justified in providing abortions to women in jurisdictions where it is illegal, when there is a serious threat either to their life or to their health. As things stand now, professional organizations’ codes recognize the woman as the primary patient, which is consistent with a plausible understanding of the Best Medical Interest standard of professional obligations based on reasonable, defensible ethical arguments.

Importantly, that doctors are professionally justified in providing illegal abortions does not mean that they are all things considered ethically justified, or that they should be exempted from the legal consequences of acting against the law. The rule of law prevails and legal obligations trump professional ones. However, it means that professional organizations have a duty to support and to not sanction members who act according to professional standards, even if against the law. It is the responsibility of relevant authorities to enforce the law, but it is the responsibility of professional organizations to uphold professional standards.

At the moment conscientious commitment claims do not enjoy legal protection. This raises the question how professional organizations should regulate the matter in their professional guidelines and codes of practice, given this lack of legal protection.

Professional organizations often include in their professional codes of practice the professional requirement to operate within the law. This means that a practitioner who acts against the law, but according to what would otherwise be professional standards (e.g. beneficence) is acting unprofessionally and therefore could lose their licence.

If we think abortion is in the best medical interest of a woman and considerations of women’s interests trump considerations of a foetus’ moral status, then professional codes should remove the explicit professional requirement to operate within the law in their guidelines on abortion. Also, professional organizations should not punish their members and should indeed lobby to protect them against legal sanctions that pertain to the professional sphere, such as the deregistration of professionals that adhere to good standards of medical ethics.  After all, they were following professional standards, which is the only thing that falls within the area of competence of professional organisations.

When a law regulates a professional practice that is considered consistent with professional standards, like abortion, the potential for conflict should be acknowledged by the relevant professional organizations. To simply claim that professionals should act within the terms of the law is to refuse to acknowledge the possibility of a conflict between standards of medical ethics and the law. This is a mistake. The role of professional organizations is that of regulating professional conduct, not to enforce the law.

 

Paper title: Conscientious commitment, professional obligations, and abortion provision after the reversal of Roe v Wade

Authors: Alberto Giubilini1, Udo Schuklenk2, Francesca Minerva3, Julian Savulescu4

Affiliations:

1 Oxford Uehiro Centre for Practical Ethics and Wellcome Centre for Ethics and Humanities, University of Oxford

2 Department of Philosophy, Queen’s University, Kingston, Ontario, Canada

3 Department of Philosophy Pietro Martinetti, University of Milan

4: Centre for Biomedical Ethics, Yong Loo Lin School of Medicine, National University of Singapore

Competing interests: none

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