Is it possible to invoke the use of moral responsibility as part of the selection criteria in the allocation of livers for transplant? Criticism has been applied to the difficulties inherent in including such a criterion and also the effect that employing such a judgement might have upon the relationship between the physician and patient. However, these criticisms rely on speculation and conjecture and do not relate to all the arguments put forward in favour of applying moral responsibility. None of the present arguments against using moral responsibility in the allocation of livers for transplant are good enough to warrant its dismissal.
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Important questions have been raised about how organs, a scarce commodity, are allocated. Much of the discussion centres on justice, autonomy and rights in respect of decision-making and treatment. Under the present transplant allocation system in the UK it is fair to say that local waiting list patients compete with each other. On occasion clinical eligibility will be similar, if not exactly the same, for more than one potential recipient. Length of time on the waiting list will be the decisive factor. Social status and moral responsibility are given no weighting at all. What happens when a stalemate occurs and a decision needs to be made between two patients at the time of transplant? Could moral responsibility be used as the tie-breaker in just such a situation?1
Within this area of resource allocation, those who oppose the use of moral responsibility direct their arguments principally to the allocation of liver transplants to people who are alcohol dependent. Discussions concentrate on assigning a lower priority for and/or excluding alcohol-dependent individuals from the transplant waiting list. According to Cohen and Benjamin2 and Ho3 moral responsibility should not be included as part of the selection criteria for a liver transplant because: measuring degrees of responsibility is arbitrary; there are practical difficulties in attributing responsibility in a way that is fair (p 1300);2 using moral responsibility as a criterion would undermine the physician/patient relationship and the functioning of medicine in general (p 78).3
These arguments underpin the conclusion that moral responsibility should not be used, in general, as a criterion for the allocation of medical resources. I would like to explore and comment on these two arguments separately. I wish to apply my argument not towards alcoholic-dependent individuals being excluded from the transplant waiting list but to the pertinent and critical time when a choice between patients must be made at the coalface. Such a dilemma could be prevented if moral responsibility were to be taken into consideration. Do Cohen and Benjamin2 and Ho3 provide a persuasive enough argument to demonstrate that the use of moral responsibility is morally inappropriate? When selecting patients for a liver transplant, I believe that these opponents do not provide sufficient evidence to support this assertion when applied to arguments put forward by philosophers such as Glannon,4 which place responsibility for one’s alcoholism and subsequent alcohol-related end-stage liver disease (ARESLD), retrospectively. As part of my response to concerns regarding trust, I would like to invite opponents to consider the importance of the public’s trust and the wider impact this may have upon organ donation and availability for transplantation in the future.
Assessing moral responsibility
Two different philosophical arguments have been presented by Glannon4 and Moss and Siegler5 attributing the alcohol-dependent individual with moral responsibility for their ARESLD. These, they contend, provide justification for assigning lower priority to some alcohol-dependent people waiting for a liver transplant. Moss and Siegler5 accept that alcoholism is a disease; this legitimises medical treatment. However, it can take years before an alcohol-dependent individual may require a liver transplant. The question of moral responsibility becomes important for Moss and Siegler prospectively, once alcoholism presents (p 1296).5 Should the alcohol-dependent individual not pursue treatment, from the onset of the disease, these are sufficient grounds on which to attach responsibility for their deterioration and eventual need for a life-saving transplant. If, through no fault of their own, the treatment they have sought fails, then this should not affect their opportunity of receiving a transplant. However, should an alcohol-dependent individual wilfully desist treatment then they should receive lower priority. However, potential cravings associated with the addictive nature of alcoholism could compromise the control of an alcohol-dependent individual and subsequently their responsibility for developing ARESLD, rendering the prospective use of moral responsibility problematical. Conversely, for Glannon, an agent’s moral responsibility can be attributed to the decision to drink in the first place, conferring retrospective responsibility upon the individual for becoming dependent upon alcohol (p 35).4 At this time one’s decision to drink is sufficiently voluntary and one is able to understand the ill effects of sustained heavy drinking.1 This circumvents the problem that may arise with using the prospective use of moral responsibility over issues to do with autonomy and voluntariness.
After careful and considered reflection, Ho3 declares that if an alcohol-dependent individual is not responsible for his alcoholism (a position that Moss and Siegler5 support) it is unfair to discriminate against such people in respect of their liver disease when non-alcohol-dependent individuals are not discriminated against for developing liver disease through circumstances beyond their control (p 80).3 Ho3 also believes that the system of lowering priority in accordance with prospective moral responsibility would be unfair and pragmatically very difficult to execute. To support this he refers to the arguments of Cohen and Benjamin2 demonstrating the technical problems associated with assigning moral responsibility. They question how degrees of responsibility and voluntary behaviour could be defined accurately and applied consistently (p 1300).2 Scientific evidence showing that some are more susceptible to addiction than others6 serves to highlight potential inconsistencies that might arise from such a task. Who could accurately differentiate those alcohol-dependent individuals deemed more responsible for their liver disease from those less responsible and would it not be open to legal contention? The potential need for a detailed history of personal habits renders such a scheme unacceptably intrusive and the inadvertent labelling of the patient, as either vicious or virtuous, unjust (p 1299).2
One possible issue with the account by Moss and Siegler,5 which Ho3 does not discuss, is autonomy and how this may, in fact, serve to undermine their justification for applying moral responsibility to some alcohol-dependent individuals. The National Council on Alcoholism and Drug Dependence’s definition of alcoholism7 demonstrates a variety of external and internal, social, environmental and genetic factors that can contribute to the disease. Psychological and physical dependency can result in impaired control over drinking and distorted perception due to one’s preoccupation with alcohol. The definition casts doubt on the natural association between a person’s free will and the disease trajectory. How can all alcohol-dependent individuals be deemed autonomous, whose disease (as accepted by Moss and Siegler)5 may result in a preoccupation with drinking and twisted thought processes? Periods of lucidity and rationality may be too short to permit a proper, rational evaluation of one’s actions once alcohol dependency develops. Moss and Siegler5 appear not to consider that addiction affects individuals in different ways. Some may not abstain for long enough to think rationally or behave “responsibly”. Others may not be able to seek help due to their addiction or for practical reasons (p 80).3 Moss and Siegler5 do not have an argument that resolves these problems, raising concerns over their position. Cohen and Benjamin voice just such a concern when describing how alcohol-dependent individuals would all be castigated for their lack of commitment towards receiving help (p 1301).2
Whereas the arguments of Ho3 opposing the use of moral responsibility apply directly to the prospective model of Moss and Siegler,5 they do not concern an alcohol-dependent individual’s retrospective responsibility, which centres on one’s capacity to exercise causal control: the crucial premise of Glannon’s argument (p 32).4 If an individual has the capacity to think, reflect, decide and act upon one’s own thoughts and decisions freely and independently8 but chooses not to exercise this causal control then they are to some extent responsible for what happens to them (p 34).4 Extensive media publicity and health promotion campaigns have provided the public with information about how addictive alcohol can be. The Department of Health has provided advice on a safe number of units that can be drunk per week; the recommended maximum number of units of alcohol per week is 14–21 for women and 21–28 for men.9 Ignorance of the dangers of alcohol is a less convincing plea in light of this publicity drive. Even if there is a genetic predisposition to alcohol dependency6i a person still has to drink between two and three times in excess of the recommended safe levels to risk becoming dependent (p 8).10 The various factors associated with alcoholism do not, in themselves, compel an autonomous individual to drink. An autonomous person may not be aware of their genetic susceptibility, but they still initially have to choose to drink large quantities, aware of the general risks associated with drinking. Consequentially, embarking on such behaviour bestows upon us responsibilities associated with this knowledge.
Glannon acknowledges certain caveats relating to applying moral responsibility retrospectively (p 36).4 Causal control can only be used to link responsibility to alcoholism when a person is not affected by pre-existing external factors or internal factors that act to coerce. Abuse, or extreme poverty, for example, may genuinely compromise a person’s decision-making capacity (although one could argue that this, in itself, may not force one to drink). One might also enquire whether a young person has sufficient capacity to understand the risks involved with drinking, thereby affecting any assessment of their moral responsibility. Are Ho’s arguments relating to the technical difficulties (p 80)3 now also applicable to the positions of Glannon?4 Any investigation into a patient’s history to discover the reasons behind initially choosing to drink is surely just as intrusive2 as ascertaining their responsibility in respect of treatment sought?
Establishing the patient’s medical history is an intrinsic part of the decision-making process regarding treatment. Ascertaining whether pre-existing factors might render the patient’s alcoholism a secondary condition could not only be crucial in the provision of appropriate care but also be of subsequent benefit to the patient. One’s drinking could also be symptomatic of depression resulting from a poor social situation. As the cause of the alcoholism, the depression could then mitigate against moral responsibility. Cohen and Benjamin2 censure the use of extensive probing into an alcohol-dependent individual’s medical/social history believing it to be morally reprehensible, describing the “highly intrusive investigations into patients’ moral habits (to be) universally thought repugnant” (p 1300).2 However, I would argue that providing details is essentially in the best interest of the patient. It is not merely a tool on which to pin moral responsibility, but, more importantly, a way of securing the right treatment; therein lies the utility of a detailed medical history. Moreover, moral responsibility need only be used when two patients are otherwise equally eligible for one liver. If the alcohol-dependent individual is deemed most suitable when a liver becomes available for transplant then the criterion is not required. An alcohol-dependent individual’s history will therefore only be used as a tie-breaker.
With regards to underage drinking and capacity, two responses can be offered. First, as pointed out earlier, even if there is a genetic predisposition to alcohol addiction, one still has to drink in excess of the safe limit over a sustained period of time. If a child begins to drink at the age of 12 years and gradually develops liver disease, a history of any resulting treatment could be tracked. Transplantation is not normally a first-line treatment when other treatments may potentially resolve the liver failure11 (the exception being patients listed super urgently for a liver transplant who will die within approximately 72 h unless they receive a liver graft. This is an acute emergency; alcoholism is understood to be a chronic disease.) Medical history might provide a clue, at a later date, as to how young a person was when alcohol use began to take effect. In accordance with responsibility being considered retrospectively, decisions regarding capacity would have to reflect this. One might contend that treatment may never be sought, especially in circumstances in which the person is homeless or too unstable to seek medical help. If this is the case then unfortunately it is unlikely that this person would ever be in a position to be assessed for transplantation. It is important to acknowledge here that Glannon discusses responsibility in terms of the autonomous decision to drink (p 34).4 He does not refer to the age that one becomes dependent on alcohol. A young person may start to drink at the age of 12 years. However, they will not become dependent on alcohol immediately. It is unlikely that consumption will be excessive from the first drink (moreover, there is no one definitive way of calculating the length of time taken to become dependent on alcohol).4 11 As they mature their knowledge in respect of the dangers of excessive alcohol consumption should improve. By the age of 16 years they could understand the risks well but decide to throw caution to the wind and drink anyway. Does their autonomous decision mean nothing? Second, is it really so intrusive, as Cohen and Benjamin2 suggest, to enquire as to the age a person was when alcohol was first consumed? A difficulty in corroborating any answer given may present an issue; however, the initial enquiry is fair when calculating the point at which normal liver function may have been affected. One could equally contest that a patient who is sensitive over their weight may feel offended by questions about diet and lifestyle; a smoker could similarly feel affronted at the question “when did you start smoking?” Should such questioning therefore be stopped? Questions asked sensitively, within a collaborative consultation, are valuable to both clinician and patient.
Both these caveats, then, do not challenge the position in respect of retrospective responsibility strongly enough to dismiss its use on moral grounds due to the impractical, meddling nature of such a criterion.
A question of trust
Even if one can attribute moral responsibility to the alcohol-dependent individual for their ARESLD, Ho3 believes that introducing a moral responsibility judgement for allocating resources could impact negatively on the trust between physician and patient, if the doctor takes on the role of judge and jury. This, he says, “risks undermining the proper functioning of medicine. We can see why this is so important by appreciating the importance of trust between a patient and his physician” (p 81).3 Treatment should only be based upon need. In a pluralist society in which different values are held12 singling out alcohol-dependent individuals and then applying arguably subjective, value-laden judgements regarding their moral responsibility could be understood to be arbitrary and prejudiced. A more knowledgeable patient may “play the system” knowing which personal details she should withhold in order that her care not be compromised. The less knowledgeable patient would “rightly” worry that their honesty and openness would be “self destructive” (p 82).3 Moreover, why should the alcohol-dependent individual’s rights to advocacy and receiving treatment, based on clinical need, be jeopardised when other forms of risky activity are not judged upon or discriminated against in the same way?
Extra financial provision may be able to treat patients successfully who indulge in other risky activities but the Human Tissue Act, 2004, outlaws any form of payment as an incentive to donate organs. Under these constraints livers cannot be bought and remain a scarce resource. There is also a direct correlation between end-stage liver disease and alcoholism. Other illnesses cannot be directly attributed to end-stage organ failure (applicable for transplantation) or tracked back to risky behaviour in the same way. If it were possible to prove the same association with other illnesses, then assigning responsibility could indeed be applicable.
There is no substantive evidence to support Ho’s speculation as to the consequences of a breach of trust between the alcohol-dependent patient and the physician. His argument could be compared with the potential consequences of jeopardising the trust the public places in those responsible for making decisions regarding the fair distribution of resources. Organ availability is severely limited; scarcity presents a problem with any allocation system. The toleration of risky behaviour and providing for those who suffer from their risks are two different expectations affording different responses. Whereas the community may tolerate risky behaviour it may also expect the person taking the risk to accept responsibility and bear the brunt of any consequences of that risky behaviour. The public may trust that decisions regarding the allocation of scarce resources reflect this view. Paying a higher insurance premium to cover certain risky recreational activities that may affect one’s health is already an accepted practice. Political philosophers such as Dworkin13 and Arneson14 encourage a system in which individuals not be indemnified by society against unfortunate consequences deemed within their control. Receiving a transplant could be understood to be just such a practice requiring assessment for indemnity. Surveys have also suggested that members of the public are more frugal when asked to allocate scarce resources (hypothetically) to patients whose illness was believed to be self-inflicted.15 16 This view has been observed in Oregon, where a scoring system was devised in which the public were asked to rank 714 condition–treatment pairs. Patients requiring a liver transplant for non-alcoholic liver disease were ranked 364 but those with alcoholic liver disease were ranked 695.15 If alcohol-dependent individuals are seen to receive liver transplants over those who are not alcohol dependent this public trust may be weakened. This could result in a negative impact upon the number of organs made available for transplant through a reduction in the number of organ donations. For example, in 2002, George Best received a liver transplant. Shortly afterwards he started drinking; the media were highly critical of this. The BBC reported that his recidivism had impacted negatively upon the decision made by some potential donor families in respect of whether they allowed their loved one’s liver to be donated.17
One could speculate that on the one hand patient trust (an alcohol-dependent individual’s trust in particular) could be undermined if assessment of moral responsibility were introduced in the allocation of livers for transplant, but on the other hand the public’s trust could equally be undermined if alcohol-dependent individuals are seen to be transplanted over those who are not alcohol dependent, and then subsequently proceed to drink again thereafter. A reduction in the number of organ donors could present a far greater threat of harm to the alcohol-dependent individual (and all others awaiting a transplant) than the introduction of an assessment of moral responsibility. Both types of speculation can be seen to be equally well supported. What this demonstrates is that speculation is not strong enough to warrant dismissal of the use of moral responsibility as part of a selection process for liver transplantation.
Patients unwittingly vie for the scarcest of resources. When this happens, patients’ needs have to be calculated carefully. At present, when two people require a liver transplant and there is nothing to discern one from the other, in respect of their medical need or waiting time, some other criterion is required in order to help towards making a timely decision. On occasion uncomfortable decisions need to be made because scarce resources necessarily force selection. The association between alcoholism and end-stage liver disease is an established one. In the absence of autonomous decision-making on behalf of the patient, the use of moral responsibility would be harsh; however, when a person has previously been able to make an autonomous decision their responsibility could be assessed. Such a system could be used only when a decision needs to be made acutely (ie, when one liver is available for two patients). As part of the selection process one could ascertain whether the patient is understood to have been autonomous at the time he or she started drinking; if yes, is the patient morally responsible for making the choice to drink? The patient’s behaviour around the time drinking commenced would have been discussed as part of an appropriate treatment plan from the outset, ruling out the need to make such an enquiry when a decision needs to be made as to who should receive a liver. One is able to make choices with regard to their health and social habits but they must take responsibility for these choices; this provides a clear message to the public. With the exception of extenuating circumstances one’s choice to drink (heavily) might impact upon one’s eligibility for a liver transplant, regarded as a scarce resource (if only one were available for two potential contenders), should the need arise.
The arguments of Ho3 only serve seriously to contest the use of applying moral responsibility prospectively. Moreover, although highlighting possible bad outcomes in his speculation over trust, equally worrying possibilities can also be mooted in response to his concerns. A more robust argument covering every angle is required to demonstrate effectively that using moral responsibility as a criterion when deciding which patient should receive a liver transplant is morally problematical.
The author would like to thank Dr Tom Walker, Centre for Professional Ethics, Keele University, Keele, for very helpful comments on a previous draft of this paper.
Competing interests None.
Provenance and Peer review Not commissioned; externally peer reviewed.
↵i Evidence (p 363)6 suggests that having this gene can result in dependency from daily alcohol consumption as low as six UK standard units or drinks, which is relatively small for most individuals dependent on alcohol.