A Flourishing Practice? looks at the moral problems that currently seem prevalent in UK health care.
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A Flourishing Practice?
By Peter D. Toon
Royal College of General PractitionersCopyright © 2014 Royal College of General Practitioners
All rights reserved.
MacIntyre's fragmented moral universe and its impact on health care
In the first chapter of After Virtue Alasdair MacIntyre imagines an Orwellian future in which there is a Luddite reaction against natural science; laboratories are smashed and the culture of scientific discourse is destroyed. Some time later people try to recreate scientific knowledge, but all they possess are fragments, without any real understanding of the nature and purpose of science. So:
adults argue with each other about the respective merits of relativity theory, evolutionary theory and phlogiston theory, although they possess only a very partial knowledge of each. Children learn by heart the surviving portions of the periodic table and recite as incantations some of the theorems of Euclid.
He goes on to suggest that our understanding of morality and the language we use about it is in a similar state of disorder to that of science in his imaginary world. The destruction of tradition that he argues was a consequence of the Enlightenment has broken up the moral framework in which we live, as the wreck of a ship breaks up its hull. We are left with fragments, pieces of theory and their implications, which hold together in themselves but that are not connected to each other. We are clinging to this wreckage, but without the underlying consensus of a shared tradition there is nothing to hold the fragments together. This, he argues, is why many of our ethical discussions cannot be resolved; they are conducted between people clinging to separate bits of the moral wreckage, shouting at one another across a sea of chaos.
The debate on abortion illustrates this. Some believe that the fetus is a person just as much as any adult is. Like an adult it has a 'right to life', and any action that interferes with that right counts as murder. Others argue that a woman has a 'right to choose' whether or not to go on with a pregnancy she does not want and has tried hard to prevent. Yet others believe that a decision on an unwanted pregnancy should depend on the likely outcomes of going on with the pregnancy or terminating it; sometimes abortion offers the best chance of happiness for the pregnant woman and/or her existing children, and so is best; at other times it does not. Each conclusion follows logically from its premises, but we lack a way to reconcile the differences between premises with conflicting outcomes; in philosophical jargon they are 'incommensurable'.
To test whether this idea is helpful in understanding the moral problems that health care faces we must examine the conceptual frameworks within which we currently organise our values. If MacIntyre is right then we will find separate 'fragments' of the moral shipwreck that do not fit together. This does seem to be the case. Much of the discussion of values in health care today can be seen as taking place within the framework of 'fragments' of moral discourse, each of which makes sense separately but which are not coherently related. An outline of one possible analysis of value 'fragments' and how they are used in health care, with some examples of how these seem to be used incommensurably to address some aspects of medical practice, forms the rest of this chapter.
The deontological fragment
Since the Enlightenment, approaches to ethics based on rights and duties (deontological) or on the results of actions (consequentialist) have dominated moral philosophy, and so it is not surprising that they are major influences in thinking about values in medical practice. Ethicists see the two as alternatives and there is much discussion of the rival merits of each, but health care appears to use them both, but for different purposes.
Deontological ethical systems are based on rights and reciprocal duties. Thus the right to life imposes on others a duty not to kill. This is a 'negative duty' (a duty not to do something) and it is linked to a 'liberty right' – the freedom not to have harmful things done. There are also 'claim' rights, linked to 'positive duties'. Thus, for the right of children to education to be meaningful, someone (parents, the local community or the state) must have a duty to provide that education; without someone with a positive duty to meet a claim, rights are just a rhetorical device, or as Bentham suggested 'nonsense on stilts'.
The language of rights has become increasingly popular in recent years, particularly in the UK since the inclusion of the European Convention on Human Rights in our law by the Human Rights Act 1998. The NHS constitution is framed largely in terms of rights, most of which impose duties on health professionals or institutions that provide health care. Evans suggested that health care might be more collaborative if there were more emphasis on patients' duties; interestingly, the NHS constitution uses the weaker term 'responsibilities' when discussing what is expected of patients. (This may reflect the influence of consumerism, another 'fragment' discussed below.)
Discussions of professional standards in health care are usually conducted in terms of duties. In the UK for medical practitioners the General Medical Council's (GMC) 'Duties of a doctor' is central. Other professional codes are similarly phrased. Although the Nursing and Midwifery Council Code does not explicitly speak of duty, it mentions patient rights and uses a repeated 'you must' stem that is typical of deontological imperatives.
The language used in these statements has been criticised for lack of realism. For some, duty is a gloomy word, the 'Stern daughter of the voice of God' bringing to mind obligatory Sunday afternoon visits to boring aunts, sharing your chocolates with hated cousins and finishing your greens. We do our duty because we have to rather than because we want to. Indeed, some dour deontologists have suggested that an act only counts as good if you don't really want to do it. Visiting a friend in hospital because you care for him and enjoy his company isn't morally praiseworthy; it is acting according to duty but not from duty. This view is often attributed to Kant, although not all commentators accept this interpretation of his views.
Certainly 'Duties of a doctor' can feel depressing. With so many demanding duties one may be excused for asking 'Why bother?' Someone with the natural gifts and educational achievements needed to practise medicine could surely have more fun and earn three times as much by being an accountant or a lawyer without taking on such onerous burdens?
Another criticism of deontological ethics is that the theory cannot resolve conflicts between the rights of different people, for example those of the mother and of the fetus in the rights-based approach to abortion discussed above. Duties may also conflict; for example, the duty of confidentiality may conflict with a duty of care for others, as with an epileptic who drives or a patient infected with human immunodeficiency virus (HIV) who will not tell his wife of his condition. There is the conflict between the duty of GPs in commissioning groups to obtain the best possible health care for the local population and the interpretation of the GMC's duty of the doctor to 'make the care of your patients your first concern' as meaning the patient in the consulting room. This is one example that is currently often discussed of how deontological thinking can be problematic in health care.
The consequentialist fragment
Moral theories that focus on trying to maximise the good, rather than on rights and duties, are known as consequentialist because they judge the rightness of actions by their consequences. If deontology is the fragment of moral discourse to which the GMC and professional bodies are clinging, then public health and its input into health policy and resource allocation seem to be attached to consquentialism. Because this theory considers the total sum of good that an action produces, irrespective of who benefits from it, it seems the ideal way to look at the health of populations. In the UK, health policies, decisions by the National Institute for Health and Care Excellence (NICE) and the inclusion of activities in the GP Quality and Outcomes Framework (QOF) are often justified on grounds of 'health gain' – a consequentialist concept often measured in terms of QALYs – quality-adjusted life years.
Although taken as axiomatic in these areas, consequentialism and QALYs are also widely criticised. It is suggested that QALYs further disadvantage the disadvantaged, because a life-extending intervention will add fewer QALYs to someone whose quality of life is already poor for some other reason than to someone otherwise in good health. QALY-based analysis finds it hard to take account of individuality and different perceptions of the good. It has to assume that everyone shares the same consequentialist vision of the good. It also risks treating people as means rather than ends. If everyone with a high cholesterol takes a statin, we know how many heart attacks will be prevented in a population (assuming that the research data are valid and reliable) – but we have no means of knowing which individuals will avoid a heart attack, so a policy of promoting statin treatment for all at risk (such as the QOF) focuses on the good of the population as a whole rather than the choice of the individual.
Consequentialism cannot take account of the structure of an individual human narrative. In this view life is a series of episodes linked in an arbitrary manner; all that matters is the overall good of the episodes. When I was a child we used to play a game called 'Consequences' at Christmas. Pieces of paper were passed round, and each person added a line to a story, not knowing what went before or after. The resulting 'narrative' of who met whom, where, what they said and the consequence, was nonsensical, though often amusing. The consequentialist view of life is like this. The only sense that can be made of this meaningless tale is to maximise pleasurable episodes – to eat, drink and be merry.
Because consequentialists emphasise the quantity of good in a life, rather than seeing it as a narrative with a purpose and shape, they have problems with its inevitable end in death. A philosophy that sees good as a longer and less painful life will naturally see death as something to be avoided for as long as possible. The postponement of death is of course doomed to failure (and often an expensive failure, as more and more resources are poured into resisting the inevitable) and society pays a high cost to support a long, slow decline by dementia and increased disability. Conversely, however, when the pain of life outweighs its pleasure and will always do so, death is to be welcomed and indeed assisted. Thus consequentialist arguments are often used to support making elective death more easily available when the balance of good and suffering in a life becomes irreversibly negative.
Other value-laden fragments
The two fragments I have discussed so far are traditional approaches to ethics. The incommensurable criticism each makes of the weaknesses of the other, which I have tried to summarise above, are well rehearsed in the moral philosophy literature. The other four fragments in our moral universe that I want to suggest are helpful in understanding the current state of confused moral discourse in medicine – legalism, managerialism, capitalism and consumerism – are less obviously ethical. Indeed they are often thought of as value free, but each of them in fact contains implicit values. As so often in health care because the values in these fragments are rarely explicit they are easily overlooked, and seen either as self-evident truths or statements of fact rather than evaluations.
These fragments are not totally separate; there are strong links between them and perhaps some of them might be better considered as one fragment rather than two – for example, are capitalism and consumerism different fragments, or two aspects of one conceptual framework that emphasise different aspects of it? This may be an interesting question but from the point of view of the purpose of this chapter, which is to establish whether MacIntyre's view that we live in a fragmented moral universe applies to health care, we only need to establish that such fragments exist and are incommensurable. It is not necessary to establish a definitive analysis of those fragments or the boundaries between them.
The legal fragment
If duty is the stern daughter of the voice of God, then the law is her even sterner granddaughter: a codification of rights and duties. The law takes suspicion as axiomatic, in a similar way that Descartes started from the premise that the only thing he could confidently believe was 'I think'. In the law nothing is taken on trust, nothing believed without evidence. The Anglo-Saxon legal system in the UK has at its heart an adversarial relationship, since both civil and legal cases are tried by the two opposing parties each presenting their case. Although legalism derives its values from the law taken to extremes, its effect on health care cannot be blamed on lawyers. Lawyers may be free from legalism whilst non-lawyers may be extremely legalistic.
Legal frameworks for medical practice and health have existed in most times and places, but usually these set general boundaries, and within these limits professions were trusted to be self-governing, and much of the detail was left to the judgement of individual practitioners. Recently, however, legal and quasi-legal practices seem to have had a growing impact on medicine and health care. For example the GP Contract of 1947 defined the services that GPs were required to provide as 'those services usually provided by general practitioners'. This circular definition was replaced by a tighter contract in 2004, in which many of those services were spelt out and the standards expected (and paid for) were defined in detail. Forty years ago the GMC policed doctors with a light touch, and so long as they avoided the 'Five As' (Alcohol, Abortion, Adultery, Advertising and Association with non-licensed practitioners) it was assumed that their practice was satisfactory. Sadly medicine, like other professions, did not always justify this trust; doctors became 'a conspiracy against the laity', banding together to conceal incompetence and impropriety. Those within the profession responsible for patrolling the boundaries of judgement and good practice often did not use the tools that existed to address inadequate performance. Too much was left to individual judgement, and the result was a series of catastrophes and scandals. As a result trust in the medical profession as a whole broke down for many politicians, managers and patient representatives, and multiple legal and quasi-legal procedures have been put in place to police the profession. A naïve assumption that professionals are always to be trusted and respected by virtue of their position was replaced by a 'hermeneutic of suspicion'. Consequently, rather than expecting that practitioners try to do their best and practise virtuously, this has to be proven regularly.
Another factor that may have contributed to the growth of legalism in medical practice is that our society, perhaps imbibing cultural norms from the United States, has become both more litigious and more risk averse. The latter stems in part from the former, because when legal challenge occurs the cost is enormous – in money, time and disruption. People therefore go to great lengths to avoid risk of litigation; placing as it were a 'fence around the law'. (This is an expression used of rabbinic laws (gezeirah), which are intended to protect Jews from violating a mitzvah, the commandments of the Torah, the Five Books of Moses in the Hebrew Bible. A classic example of building a fence around the Law relates to Exodus 23:19: 'You are not to boil a kid in the milk of its mother.' From this comes the rabbinical law that forbids mixing dairy products with meat in the same meal.)
This phenomenon is seen for example in health and safety and data protection where practice driven by fear often goes far beyond what the law actually requires. Health care involves both these issues and so is subject to these general social forces. Defensive practice is another example of risk aversion more specific to health care. Health professionals sometimes feel constrained to follow guidelines for fear of complaint or legal action, even if they are unconvinced of their relevance for a particular patient. This concern was for example expressed in a debate at the RCGP Annual Conference 2011 in Liverpool. In response to this, Prof. Sir Michael Rawlins, then Chair of NICE, pointed out that NICE issues guidelines, which as Sackett made clear need to be integrated with clinical judgement. Sir Michael estimated that NICE guidelines would be applicable in perhaps 80% of cases; however, it is often assumed that they are protocols rather than guidelines, and that deviation from them always reflects substandard practice.
If at one time professions were a law unto themselves, 'conspiracies against the laity' banding together to conceal incompetence and impropriety, the pendulum seems now to have swung to the other extreme, so that multiple checks are in place, which take considerable time and money. In GP training, rigorous documentation requirements are driven by the need to be able to defend a judicial review of a decision to fail a student (and ideally make it clear to students who do fail that this is the case so that they don't even try), and the need to be able to defend a charge of contributory negligence in training a doctor who goes on to kill someone. The rather chilling view expressed by a respected teacher at my medical school – 'most of you will probably kill someone at some point.... but that will be far outweighed by the number of lives you will save' – is no longer seen as an acceptable assessment of the balance of risks.
Excerpted from A Flourishing Practice? by Peter D. Toon. Copyright © 2014 Royal College of General Practitioners. Excerpted by permission of Royal College of General Practitioners.
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Table of Contents
Chapter 1 MacIntyre's fragmented moral universe and its impact on health care, 7,
Chapter 2 The practice of health care, 28,
Chapter 3 Flourishing and the internal goods of the practice, 39,
Chapter 4 Concepts of disease and a narrative of flourishing, 56,
Chapter 5 Flourishing professionals, 73,
Chapter 6 Some thoughts on professional virtue, 84,
Chapter 7 Institutions that sustain a flourishing practice, 101,
Chapter 8 Towards a flourishing practice, 119,