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Risk and Luck in Medical Ethics
  1. R Tong

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    D Dickenson. Polity Press, 2002, £15.99, pp 280. ISBN 0745621465

    In Risk and Luck in Medical Ethics Donna Dickenson explains in brilliant fashion the tension between ethics and luck, be it luck in outcomes of action on the one hand or luck in antecedent circumstances, in the problems that have to be faced, or character on the other. According to Dickenson, most of the philosophical debate so far has focused on how luck in outcomes affects agents’ ability to act as morally responsible people. But Dickenson thinks it is equally important to discuss how to modify one’s own luck through character development and environmental changes.

    Throughout her lively inquiry, packed with interesting real life case studies, Dickenson requires her readers to consider philosophers’ desire “to minimize the effects of chance on moral character and the rightness of ethical choices” (p 2), a desire so intense that it led Kant to proclaim that even if the good will was “…wholly lacking in power to accomplish its purposes … it would [still] sparkle like a jewel in its own right, as something that had full worth in itself” (p 2). Philosophers want to believe that human beings control their own destiny. Yet they fear that nothing is really in their own control, and that the foundation of morality—autonomy, choice, freedom—is illusory.

    Dickenson claims that we can both acknowledge the role luck and risk play in our lives and maintain a robust Kantian sense of self (free, autonomous, and, above all, morally responsible) if we properly limit that for (Dickenson’s emphasis) which we are responsible (p 19). Moral agents are not responsible for all the outcomes of their actions, but only for some. Similarly, moral agents are not responsible for the way they initially find themselves in the world; but they are responsible (to a greater or lesser extent) for how they shape themselves and their larger environment. Like Kant, wise moral agents are proud to be persons who can make choices; but not so obsessed about doing the right thing that they fear doing anything at all.

    The first three chapters of Dickenson’s book (on deontology, virtue ethics, and utilitarianism, respectively) provide Dickenson with the theoretical framework she uses to analyse the realm of medical ethics. Dickenson claims that neither virtue ethics (as formulated by Martha Nussbaum) nor utilitarianism can help us resolve the moral luck dilemma. But this fact does not overly concern Dickenson. Unlike some other contemporary philosophers (for example, Bernard Williams and Thomas Nagel), Dickenson thinks she has an “escape route” from the moral luck dilemma as formulated by Michael Zimmerman:

    1. A person P is morally responsible for an event e’s occurrence only if e’s occurring was not a matter of luck.

    2. No event is such that its occurrence is not a matter of luck.

    3. Therefore, no event is such that P is morally responsible for its occurrence (p 13).

    As Dickenson sees it, Nagel denies the conclusion (3) but accepts both premises (1) and (2), whereas Williams accepts (2) but denies (1). Neither of them, in her estimation, deny (2). But Dickenson does deny (2) on the grounds that “[a]lthough all events are a matter of luck, they are not all a matter of moral luck, nor are they all moral events” (Dickenson’s stress, p 13).

    Not surprisingly, in applying her theory to particular problems in medical ethics, Dickenson identifies consent to treatment as “… a promising area in which to begin exploring the practical implications of moral luck for medical ethics—along with the associated concerns of risk analysis, uncertainty and rationality” (p 65). Provided that the physician obtains proper (my stress) informed consent for treatment from the patient, the (non-negligent) physician is not responsible if something goes wrong during or after the treatment. The patient’s informed consent to treatment shifts risk and luck onto his or her shoulders and off the shoulders of the non-negligent physician. Thereafter, if some harm befalls the patient, the physician has no reason for remorse, although the physician may feel regret that things turned badly.

    Equally as instructive as Dickenson’s chapter on informed consent is her chapter on death and dying. Dickenson believes properly executed advance care directives ordinarily make patients responsible for how aggressively they are or are not treated. However, Dickenson is not a slave to patients’ advance care directives. In particular, she dispels the worry that physicians must honour a patient’s advance care directive about refusing life support in situation X, even if the patient now seems to be enjoying life in the previously dreaded situation X. When it comes to making a possibly wrong decision about withholding or withdrawing life sustaining treatment, Dickenson opines that “clinicians should err in favour of treatment” (p 103).

    In order to defend her view about erring on behalf of life in some situations, Dickenson focuses on the case of Anthony Bland, an 18 year old patient in a persistent vegetative state (PVS), who was kept alive by a nasogastric feeding tube. At first, Dickenson thought it was right to release Tony from his “living death;” but the more she thought about his case, the less inclined she was to rush to judgment. In the end, Dickenson decided that because physicians “… are more responsible for cutting short the life of someone in their care who might conceivably [make] some degree of mental recovery than for continuing to maintain someone in a “living death” (p 91), medical practitioners should treat PVS differently from other diagnoses, requiring a year before treatment can be withdrawn.”

    A chapter of considerable interest in Dickenson’s book deals with moral luck and the allocation of resources at both the “micro” and “macro” level. Dickenson notes that in delimiting that for which they are responsible, clinicians may wish to focus on two competing criteria for the just allocation of scarce medical resources. These two competing criteria are (1) Clinical criteria: prognosis, by which Dickenson understands the maxim that “resource[s] should go to those with the best chance of recovery (utilizing the input with maximum productive efficiency)” (p 107); and (2) Equality, by which Dickenson understands the maxim that “everyone should be treated equally in deciding how to share out the resource, regardless of need or merit” (p 108).

    Dickenson decides that between these two competing criteria, equality is more likely to yield justice for patients. Specifically, she recommends that medical practitioners confront luck head on and “explicitly incorporat[e] chance into the allocation mechanism, in the form of randomized allocation or the principle of first come, first served” (p 110). Because luck plays a role in patient prognosis just as much as in patient diagnosis, social worth, and outcomes, the fairest way to handle the allocation of scarce organs, for example, is randomisation, even if “a ninety-year-old patient with terminal renal cancer gets the kidney” has been waiting in line for it longer than a “thirty-year-old with no other symptoms than kidney failure” (p 110).

    Different sorts of questions about risk and luck arise in the area of reproductive ethics. Dickenson analyses a surrogacy case gone so wrong that it could provide several months of scripts for the typical US television soap opera. Specifically, she discusses three ways to manage luck and risk in the surrogacy business. The first approach bans at least commercial surrogacy, thereby deciding (paternalistically) that surrogate mothers may take no risks. The second approach permits surrogate mothers to bear any risks to which they give informed consent, including the risk of not having the terms of the surrogacy contract enforced in certain jurisdictions. The third approach, Dickenson’s approach, claims that although there is a role for contract in “surrogacy”, it is limited “to contracting for the women’s labour, pain, and suffering in pregnancy and childbirth. Contract should not extend to the right or duty to contract away the baby” (p 130).

    Although questions about risk, luck, and informed consent loom large in the world of surrogacy, they loom even larger in the realm of psychiatry. Because of the nature of many mental diseases, some of which undermine agents’ ability to think and act morally and others which erode agents’ ability to give proper informed consent, psychiatrists are sometimes tempted to unnecessarily confine and/or over treat their patients. Psychiatrists face particularly difficult decisions when, during therapy, patients share confidences about inclinations to harm others. Should the psychiatrist keep the patient’s “secrets” in order to build the relationship of trust that is necessary for effective therapy, or should the psychiatrist instead betray the patient and report threatened harms to third parties? Dickenson has much advice for psychiatrists who find themselves in such uncomfortable moral spots, but her main words of wisdom are distilled in a memorable maxim: “Withholding information means that one bears full responsibility for an adverse outcome, where sharing information with patients or other agencies might have averted tragedy” (p 148).

    As interesting as I found all of Dickenson’s discussions, I found most interesting her discussion of luck in character. What if a person is born totally unable to develop any sort of character, even a weak willed one? Does the presence of such troubled “souls” (if souls they have) in the human community make ethics impossible? Dickenson suggests that there are no such “souls”; that every human being able to think reasonably well probably has some capacity to develop a character, albeit a very weak one.

    In the spirit of saving some of the best for last, Dickenson continues her discussion of the role of genetics with Ronald Dworkin’s observation that the possibility of genetic engineering will dislocate the “crucial boundary between chance and choice” which constitutes “the spine of our ethics” (p 167). Suddenly, we will discover that we can use genetic technology to make ourselves in any image and likeness that strikes our fancy. Or, alternatively, we will discover that our genes are indeed us—that we are fools if we think we have choices and that we are moral agents.

    Dismissing genetic determinism with the observation that “[t]he sort of extreme genetic determinism that denies all power of choice is ultimately paradoxical, because I have a choice about whether or not to accept genetic determinism” (p 186), Dickenson tackles relativism, the other enemy of morality. She sees in global ethics, particularly feminist versions of it, a way to find a measure of unity in our diversity. She shares my view that health care must become attentive to people’s differences so that it can help people become the same—that is, equally autonomous and equally the recipients of beneficent clinical practices and just healthcare policies. Although risk and luck pervade the medical realm, we can find in moral consensus the weapons we need to withstand their assaults on our good intentions. Dickenson’s Risk and Luck in Medical Ethics is an optimistic book which teaches that failures to properly delimit moral responsibility for the antecedents and consequences of our actions, rather than good intentions, pave the path to the hell of remorse we often unnecessarily create for ourselves in the realm of medicine and elsewhere.