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Doctors should be morally common: a reply to Rosamond Rhodes
  1. Charles Foster1,2
  1. 1 Faculty of Law, University of Oxford, Oxford, UK
  2. 2 Green Templeton College, University of Oxford, Oxford, UK
  1. Correspondence to Professor Charles Foster, Faculty of Law, University of Oxford, Oxford OX1 3UL, UK; Charles.Foster{at}gtc.ox.ac.uk

Abstract

​Rosamond Rhodes contends, by reference to seven examples, that medical ethics is distinctly different from non-medical ethics. Each of those examples, on proper examination, illustrates precisely the opposite contention. It is clear not only that medical ethics relies on the same principles as non-medical (and indeed non-professional) ethics, but that it should so rely. A distinctively medical ethics would be dangerous: it would divorce ethical medical decision-making from the patients whom medicine exists to serve.

  • morality
  • ethics
  • doctors

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Rosamond Rhodes believes that medical ethics is ‘distinctly different from the ethics of everyday life and cannot be derived from it’.1 She seeks to demonstrate this by reference to seven examples. Every one of those examples illustrates very well that she is wrong. Cumulatively, they amount to a devastating case against her own thesis.

I consider each of her examples in turn, and then consider her more general points about the origin and nature of medical duties.

1. The nurse who reads the newspaper and drinks coffee instead of responding to patient needs .

The nurse is being paid to do her job. People who do not do the job they are paid to do—whatever the job is—are generally thought to be behaving badly. We rightly censure a builder who drinks tea instead of building walls, calling him dishonest and lazy.

If people are harmed by someone’s inaction, there are additional grounds of censure—again regardless of someone’s profession. Consider Peter Singer’s man who famously refuses to help the drowning child,2 or the Pharisee who walked past the half-dead traveller.3 We applaud the Samaritan, though he was not a physician or a member of the emergency services.

2. Medical professionals are expected to rely on evidence rather than on gut feelings .

It is hard to see how this assertion has any moral content at all. But if it does, I would observe merely that I expect a plumber to act on evidence of the location of a blocked pipe rather than ripping up my floorboards on the basis of a hunch.

3. Medical professionals are expected to keep confidences: ordinary people are not .

I expect my friends to keep confidences, and am disappointed when they do not. Gossips are reviled in all cultures. The law (at least in England) is clear: if information is disclosed in circumstances of confidentiality—even if the context is not professional—a duty of confidentiality arises.4 That accords with our moral intuition. So far as the professions are concerned, there is nothing at all unique about medical confidentiality: the ethical codes governing doctors’ disclosures are identical in substance to those governing lawyers, accountants and so on.1 And the priestly confessional is even more sacrosanct than the physician’s consulting room.

4. Medical professionals are expected to minister to patients medical needs without judgment about patients character or worth .

In ordinary life, we rightly disapprove of those who dismiss other humans on the basis of arbitrary criteria. A taxi driver who refuses to take a passenger on the basis of their politics—let alone on the basis of their skin colour or their sexual orientation—will, most of us would say, be acting immorally, and in the latter two cases (if not the first) is likely to be acting illegally, too. We can argue about whether commercial bakers should be required by the law to bake cakes for gay weddings,2 but the very fact that we are arguing contradicts Rhodes’ contention.

5. Doctors cannot sleep with their patients , though sexual activity between consenting adults is generally acceptable .

The usual justification for the prohibition on sexual relationships between doctors and their patients is that they can affect adversely the doctor–patient relationship and/or be an abuse of a position of authority, and so harm the patient. Harming people—whether in the context of a sexual relationship or otherwise—is generally thought to be a morally bad thing.

6. Doctors ask personal questions: normal people don’t .

Well, many normal people do—within limits. It is regarded as polite and considerate to show an interest, rather than to talk obsessionally about oneself or boringly about the weather. Of course limits are important, in social as in medical life. A doctor who asked a question about bowel movements or the regularity of sexual intercourse when she was investigating a painful finger would be regarded as ethically out of order. In a merely social context, personal questions designed to elicit information that will allow the interrogator to help the interrogatee are generally regarded as acceptable. As we are repeatedly seeing, doing good or avoiding harm are equally morally potent at dinner parties and in the clinic.

7. Doctors are entitled or obliged to admonish patients for bad choices affecting their health: a n ordinary person similarly admonishing would be showing insufficient respect for autonomy .

It is simply not true that ordinary people (if there are any such entities) do not admonish—even in the context of health. If X cares about Y, she will often tell Y to stop smoking, or to take more exercise. The more X cares, the more she will nag. And ordinary people will tend to approve the honesty, concern and straightforwardness of X. Outside the context of healthcare, there are endless examples of duties to admonish: accountants will urge prudence, electricians will say that the house needs to be rewired urgently, priests advise sexual continence, and so on. We’re back to justification on the basis of doing good or avoiding harm.

That deals with Rhodes’ seven examples. They all highlight areas where the moral standards applicable to both physicians and non-physicians spring from the same source. We can argue about whether Beauchamp and Childress5 and Gert et al 6 have traced the source of the morality sufficiently far back. I, for instance, contend that the Four Principles are second-order principles, derived ultimately from human dignity.7 But that is not the point here. Whatever the source identified by Beauchamp, Childress, Gert et al and me, by the time the principles flow into everyday life they are running in a common stream that runs alike through hospitals, lawyers’ offices, schools and bedrooms. It is not true to say, as Rhodes does, that ‘the same premises lead to contradictory conclusions for medical professionals and others…’ Beauchamp, Childress and Gert are problematic not because they wrongly apply lay standards to medical decision-making (to do so is correct) but because they are algorithmic oversimplifications which, while generating useful rules of thumb, sometimes do not do justice to the complexity of humans and the societies in which they are embedded.

Rhodes discusses at length the issue of the moral and legal duties owed by physicians and embodied in the ethical codes of the medical profession and the laws relating to medical conduct. She criticises Beauchamp, Childress and Gert et al for failing to give an adequate account of why or how ‘moral ideals are transformed into duties…’ It is not clear how this criticism is relevant to her argument, simply because precisely the same transformation occurs in relation to all professions, and indeed to the duties owed by non-professionals: again, there is nothing uniquely medical about it.

Her argument would have been stronger if she had sought to be less ambitious, seeking to defend the claim, ‘Professionals are morally different’ rather than ‘Physicians are morally different’. But even this more modest claim would have been unsustainable. Distinctively professional duties are to do only with regulation—with ethical and legal accountability: professionalism does not determine anything at all distinctive about the content of a professional duty. Regulation is necessary because physicians (and lawyers, and accountants, and surveyors) have a particular capacity to do and to prevent harm. That fact may demand closer regulation than for people who do not have, in their everyday lives, a similar capacity.

Ethics and law occupy different but overlapping domains,8 but the process by which ethical duties become hardened into legal obligations and prohibitions is identical in relation to laypeople and all professional people. A negligent plumber is judged by materially the same standard in the law of tort and contract as a negligent obstetrician. The use of the Bolam test in determining breach of duty in cases designated as 'professional' does not entail a divergence of approach between 'professional' and 'non-professional' cases that is significant in the context of this discussion.3 If the plumber’s negligence is gross, and it causes death, his criminal liability for manslaughter will be determined in the same way as the criminal liability of a doctor for manslaughter would be determined. The judgment (both moral and otherwise) of the proverbial English man on the Clapham omnibus4 (and presumably the American woman on the Manhattan metro) pervades civil and criminal law—whether the defendant is a plumber or a physician.

Rhodes gives one example of the law giving a truly unusual dispensation that is not available to ordinary citizens. It is the ability of ‘those in the military [to] explode bombs to kill other humans…’ But that is not truly a dispensation given to an individual soldier: it is a dispensation given to the State. If there are comparable dispensations in a medical context, they are all, similarly, given (in a public health context) to organs of the State.

There is, then, no true medical exceptionalism. Nor should there be. Physicians have distinctive technical skills, but technology should not drive morality. Medicine should not be an island, unconnected morally to the rest of the world, to which separate rules apply. If it becomes morally distinct, there is a danger that it will become morally divorced from the patients who are supposed to be at its heart: that the doctors who are meant to be the servants of the patients will become their masters. Rhodes’ contentions are not only wrong: they are dangerous.

References

Footnotes

  • Contributors CF is the sole author of this article.

  • Competing interests None declared.

  • Patient consent for publication Not required.

  • Provenance and peer review Not commissioned; internally peer reviewed.

  • Compare, for instance, the ethical guidance of the (UK) General Medical Council re confidentiality (Confidentiality: good practice in handling patient information: 2018: https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/confidentiality) with the Handbook of the International Code of Ethics for Professional Accountants, International Federation of Accountants, 2018.

  • See Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission (2018) 138 S Ct 1719 (US Supreme Court) cp Lee v Ashers Baking Company [2018] UKSC 49 (UK Supreme Court).

  • The 'Bolam test' (from Bolam v Friern Hospital Management Committee [1957] 1 WLR 58; see also Bolitho v City and Hackney Health Authority [1998] AC 232) is a rule both of substantive law and evidence. It is ubiquitous in English professional negligence law, and provides that a professional will not be negligent if she has acted in a way that would be (and will at court be - hence the evidential element) endorsed by a responsible body of opinion in the relevant specialty. It recognises that there are often supportable divergences of opinion between professionals, and that the judge, in adjudicating technical disputes outside her own sphere of expertise, will need the assistance of experts in the relevant field. The importance of the test in medicine has been radically truncated by the growth of evidence-based medicine. It is essentially the law's attempt to apply, in a technical context, the judgment of the notional 'reasonable man' - by substituting 'reasonable professional'. The moral justification for the imposition of a duty on a professional is identical to that for the imposition of the duty on the non-professional. In non-professional cases, as in professional cases, there may well be a fairly broad spectrum of 'reasonable' behaviour. The substance of the duty in both cases is also identical - although the exact way in which the duty is framed is necessarily (but morally irrelevantly) coloured by the professional context.

  • The ‘man on the Clapham omnibus’ is the notional man whose judgment is used in English law (and many other jurisdictions) to decide whether a defendant has been negligent: see McQuire v Western Morning News [1903] KB 100, at 109.

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