Ethics and professional medical ethics

Ethics is the disciplined study of morality. Morality concerns right and wrong behaviour and good and bad character. Professional medical ethics is the disciplined study of morality in medicine and identifies the obligations of clinicians to patients. Medical ethics should not be confused with the many sources of morality in a pluralistic society. These include, but are not limited to, law, the world’s religions, ethnic and cultural traditions, families, and personal experience. Professional medical ethics seeks to bridge these differences and identify the obligations of clinicians to their patients in all global cultures and national settings.

The first step in doing so is to recognise that professional medical ethics is secular. This recognition was achieved in the 18 ^th -century European and American Enlightenments. Secular professional medical ethics makes no reference to deity or deities or to revealed tradition, but to what reasoned, evidence-based discourse requires and produces. At the same time, secular professional medical ethics is not intrinsically hostile to religious beliefs. Therefore, ethical principles and virtues should be understood to apply to all clinicians, regardless of their personal religious and spiritual beliefs and regardless of their nationality or place of practice.

The traditions and practices of medicine constitute an obvious source of morality for physicians. These traditions provide an important reference point for professional medical ethics because they are based on the obligation to protect and promote the health-related interests of the patient. This obligation tells physicians what morality in medicine ought to be, but only in very general, abstract terms. The provision of a clinically applicable account of that obligation is, in clinical practice, the central task of professional medical ethics, using ethical principles. Two ethical principles play a central role in professional medical ethics.

The first is the ethical principle of beneficence. In ethical reasoning generally, the principle of beneficence requires one to act in a way that is reliably expected to produce a greater balance of benefits over harms in the lives of others. In professional medical ethics, this principle requires the physician to seek a greater balance of clinical over clinical harms in the lives of patients. The task of beneficence-based clinical judgment is to reach reasoned judgments about the appropriate balance of clinical goods and harms when not all of them can be achieved in a particular clinical situation, such as a request for an elective caesarean delivery.

Beneficence-based clinical judgment has an ancient pedigree. Its first expression in the history of Western medical ethics occurs in the Hippocratic Oath and accompanying texts. These texts make an important claim: to interpret reliably the health-related interests of the patient from medicine’s perspective. This perspective is provided by accumulated scientific research, clinical experience, and reasoned responses to uncertainty. As rigorously evidence-based, beneficence-based clinical judgment is not based on the idiosyncratic judgment of the physician (i.e. merely on clinical impression or intuition). On the basis of this rigorous clinical perspective, focused on the best available evidence, beneficence-based clinical judgment identifies the clinical benefits that can be achieved for the patient based on the competencies of medicine. The clinical benefits that medicine is competent to seek for patients are the prevention and management of disease, injury, disability, lost functional status, and unnecessary pain and suffering, and the prevention of premature or unnecessary death. Pain and suffering become unnecessary when they do not result in achieving the other goods of clinical care (e.g. allowing a woman to labour without effective analgesia).

The ethical principle of non-maleficence requires the clinician not to cause harm and is best understood as expressing the limits of beneficence-based clinical judgment. This ethical principle is also known as Primum non nocere or ‘first do no harm.’ This commonly invoked dogma is really a Latinised misinterpretation of the Hippocratic texts, which emphasised beneficence while avoiding harm when approaching the limits of medicine to maintain or improve the patient’s condition or to alter the course of disease or injury. Non-maleficence should be incorporated into beneficence-based clinical judgment: when the physician approaches the limits of beneficence-based clinical judgment (i.e. when the evidence for expected clinical benefit diminishes and the risks of clinical harm increases), then the clinician should proceed with great caution. The clinician should be especially concerned in such clinical circumstances to prevent serious, far-reaching, and irreversible clinical harm to the patient.

We acknowledge that there is an inherent risk of paternalism in beneficence-based clinical judgment. By this, we mean that beneficence-based clinical judgment, if it is, mistakenly, considered to be the sole source of professional responsibility and therefore moral authority in obstetrical care, invites the unwary obstetrician to conclude that beneficence-based judgments can simply be imposed on the pregnant woman in violation of her autonomy. Paternalism can be dehumanising treatment of the pregnant woman and, therefore, should be avoided in obstetric practice.

The antidote to paternalism is respect for the pregnant woman’s autonomy. This ethical principle requires the clinician to empower the pregnant woman to make informed decisions about the management of her pregnancy. The most important way that clinicians fulfill this obligation is to identify medically reasonable alternatives to the pregnant woman and to identify alternatives that, while technically possible, are reliably judged to be medically reasonable. ‘Medically reasonable’ means that there is a beneficence-based clinical judgment that a form of clinical management or intervention has a reliable evidence base for expected net clinical benefit. There is no ethical obligation to offer a technically possible alternative that does not meet this test for being medically reasonable. When this is met, the alternative should be offered, along with all other medically reasonable alternatives. Sometimes, the evidence clearly supports one alternative as clinically superior to others or as the only medically reasonable alternative. In such clinical circumstances, the clinician should recommend this alternative to the pregnant woman. Sometimes, the evidence clearly supports an alternative as not medically reasonable. In such clinical circumstances, the clinician should not offer this alternative to the pregnant woman. Sometimes, the evidence clearly supports an alternative as not only not medically reasonable but, on balance, clinically harmful. In such clinical circumstances, the clinician should recommend against this clinical alternative and not carry it out.

Patients exercise their capacity for autonomous decision making in response to alternatives that are offered or recommended by the clinician in the informed consent process. The capacity for autonomous decision making has three components: (1) absorbing and retaining information about her condition and the medically reasonable diagnostic and therapeutic responses to it; (2) understanding that information (i.e. evaluating and rank-ordering those responses and appreciating that she could experience the risks of treatment; and (3) expressing a value-based preference. The clinician has a role to play in each of these. They are, respectively, as follows: (1) to recognise the capacity of each patient to deal with medical information and not to underestimate that capacity, provide information (i.e. disclose and explain all medically reasonable alternatives) and recognise the validity of the values and beliefs of the patient; (2) not to interfere with but, when necessary, to assist the patient in her evaluation and ranking of the medically reasonable diagnostic and therapeutic alternatives for managing her condition; and (3) to elicit and implement the patient’s value-based preference.

The common law in the USA played an important role in clarifying the clinician’s obligation to provide information to the patient to empower her to make informed decisions. Two major contributions were made in the 20th century: the concepts of simple and informed consent. The concept of simple consent was established in a landmark gynaecologic case, Schloendorff v. the society of the New York hospital . Simple consent concerns whether the patient says ‘yes’ or ‘no’ to medical intervention. To this day, in the medical and bioethics literature, this decision is quoted: ‘Every human being of adult years and sound mind has the right to determine what shall be done with his body, and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.’ ⁹

The concept of informed consent further evolved to include disclosure of information sufficient to enable patients to make informed decisions about whether to say ‘yes’ or ‘no’ to medical intervention. Two accepted legal standards emerged. The professional community standard defines adequate disclosure in the context of what relevantly trained and experienced clinicians actually tell patients. The reasonable person standard, which is used by most states in the USA (where the states regulate the practice of medicine, not the federal government), goes further and requires the clinician to disclose ‘material’ information. This means information that any patient in a particular patient’s condition needs to know and that the lay person of average sophistication should not be expected to know. Patients need to know what the physician thinks is clinically salient (i.e. the physician’s beneficence-based clinical judgment about medically reasonable alternatives: what they involve and their clinical benefits and risks). The reasonable person standard has emerged as the accepted ethical standard. We, therefore, use it in this chapter. On this standard, the clinician should disclose to the pregnant woman her or the fetus’s diagnosis (including differential diagnosis when that is all that is known), the medically reasonable alternatives to diagnose and manage the patient’s condition, the short-term and long-term clinical benefits and risks of each alternative, and the evidence-based, deliberative judgment of the clinician that the clinical benefits outweigh the clinical harms.

Respect for autonomy does not require the clinician to implement a patient’s preference simply on the basis that the patient has freely expressed it. Put another way, the exercise of rights by the patient should not be regarded as an absolute determinant of the clinician’s clinical practice.

The ethical principles of beneficence and respect for autonomy should guide professional obstetric clinical judgment and practice. There are beneficence-based and autonomy-based obligations to the pregnant woman: the clinician’s perspective on the pregnant woman’s health-related interests provides the basis for the clinician’s beneficence-based obligations to her, whereas her own perspective on those interests provides the basis for the clinician’s autonomy-based obligations to her, as described above. Because of an insufficiently developed central nervous system, the fetus cannot meaningfully be said to possess values and beliefs. Thus, there is no basis for saying that a fetus has a perspective on its interests. There can, therefore, be no autonomy-based obligations to any fetus. Obviously, the clinician has a perspective on the fetus’s health-related interests, and the clinician can have beneficence-based obligations to the fetus, but only when the fetus is a patient. Because of its importance for obstetric clinical judgment and practice, the ethical concept of the fetus as a patient requires detailed consideration.

Developments in fetal diagnosis and management strategies to optimise fetal outcome have become widely accepted, encouraging the development of the ethical concept of the fetus as a patient. This concept has considerable clinical significance because, when the fetus is a patient, directive counselling (i.e. recommending a form of management for fetal benefit), is appropriate, and when the fetus is not a patient, non-directive counselling (i.e. not recommending a form of management for fetal benefit) is appropriate.

One prominent approach for establishing whether or not the fetus is a patient attempts to show whether or not the fetus has independent moral status. ‘Independent moral status’ for the fetus means that one or more characteristics that the fetus possesses in and of itself and, therefore, independently of the pregnant woman or any other factor, generate and therefore ground obligations to the fetus on the part of the pregnant woman and her clinician. Many fetal characteristics have been nominated for this role, including moment of conception, implantation, central nervous system development, quickening, and the moment of birth. It should come as no surprise that there is considerable variation among ethical arguments about when the fetus acquires independent moral status. One view is that the fetus has independent moral status from the moment of conception or implantation. Another view is that independent moral status is acquired in degrees, thus resulting in ‘graded’ moral status. Still another view holds, at least by implication, that the fetus never has independent moral status so long as it is in utero .

Despite a centuries-old, global, and an ever-expanding theological and philosophical literature on this subject, there has been no closure on a single authoritative account of the independent moral status of the fetus. Given the absence of a single method that would be authoritative for all of the markedly diverse theological and philosophical schools of thought involved in this endless debate, closure is impossible. All attempts to explain the ethical concept on the basis of the purported independent moral status of the fetus are irresolvably controversial, and thus provide no reliable clinical basis for the application of the concept.

A clinically reliable explanation of the ethical concept of the fetus as a patient starts with the recognition that being a patient does not require that one possess independent moral status. The ethical concept of being a patient is clinically straightforward: a human being (1) is presented to a clinician (or other healthcare professional); and (2) there exist clinical interventions that are reliably expected to be efficacious, in that they are reliably expected to result in a greater balance of clinical benefits over harms for the human being in question. In the technical language of normative ethics, this is known as the dependent moral status of the fetus.

The authors have argued elsewhere that beneficence-based obligations to the fetus exist when the fetus is reliably expected later to achieve independent moral status as a child and person. That is, the fetus is a patient when the fetus is presented for medical interventions, whether diagnostic or therapeutic, that reasonably can be expected to result in a greater balance of goods over harms for the fetus and therefore the child and person the fetus can later become during early childhood. The ethical significance of the concept of the fetus as a patient, therefore, depends on links that can be established between the fetus and its later achieving independent moral status.

One such link is viability. Viability, however, must be understood in terms of both biological and technological factors. It is only by virtue of both factors that a viable fetus can exist ex utero , and thus achieve independent moral status. When a fetus is viable, that is, when it is of sufficient maturity so that it can survive into the neonatal period and achieve independent moral status given the availability of the requisite technological support, and when it is presented to the clinician, the fetus is a patient.

Viability exists as a function of biomedical and technological capacities, which are different in different parts of the world. As a consequence, there is, at the present time, no worldwide, uniform gestational age to define viability. In the USA, we believe, viability presently occurs at about 24 weeks of gestational age.

Before viability, the only link between the fetus and its later becoming a child is the pregnant woman’s decision to continue her pregnancy to viability. The pre-viable fetus is therefore a patient solely as a function of the pregnant woman’s autonomous decision to confer this moral status on her fetus(es).

When the fetus is a patient, directive counselling for fetal benefit is ethically justified. In clinical practice, directive counselling for fetal benefit involves one or more of the following: recommending against termination of pregnancy; recommending against non-aggressive management; or recommending aggressive management. Aggressive obstetric management includes interventions such as fetal surveillance, tocolysis, caesarean delivery, or delivery in a tertiary care centre when indicated.

Non-aggressive obstetric management excludes such interventions. Directive counselling for fetal benefit, however, must take account of the presence and severity of fetal anomalies, extreme prematurity, and obligations to the pregnant woman.

Directive counselling for fetal benefit must occur in the context of balancing beneficence-based obligations to the fetus against beneficence-based and autonomy- based obligations to the pregnant woman. Such balancing must recognise that a pregnant woman is obligated only to take reasonable risks of medical interventions that are reliably expected to benefit the viable fetus or child later.

Obviously, any strategy for directive counselling for fetal benefit that takes account of obligations to the pregnant woman must be open to the possibility of conflict between the clinician’s recommendation and a pregnant woman’s autonomous decision to the contrary. Such conflict is best managed preventively through the informed consent process as an ongoing dialogue throughout a woman’s pregnancy, augmented as necessary by negotiation and respectful persuasion.

This approach to obstetric ethics is known as the professional responsibility model of obstetric ethics. This model provides an antidote to the rights-based reductionism that characterises much of the literature on obstetric ethics. This oversimplification of obstetric ethics occurs when the only or overriding ethical consideration is rights of either the pregnant woman or the fetus.

Right-based reductionism is best illustrated by the abortion controversy. One extreme asserts that fetal rights always override the rights of the pregnant woman. This is fetal-rights reductionism. Termination of pregnancy at any gestational age or for any reason is impermissible, regardless of whether the pregnancy is voluntary or not or viable or not. The other extreme asserts that the pregnant woman’s rights always override fetal rights. This is woman’s-rights reductionism. Termination of pregnancy is therefore permissible at any gestational age and for any or many reasons.

Such rights-talk is initially appealing because of the simple dichotomy at its heart: one either has rights or one does not and, if one does, others must respect one’s rights. This simple dichotomy is simplistic and does not withstand close clinical ethical scrutiny. Unavoidable controversy surrounds the nature and limits of fetal and women’s rights. Such rights are based on many factors, including cultural, political, and religious beliefs that do not lend themselves to compromise and are outside of the physician–patient relationship.

Consider the simplistic claim that a pregnant woman has unconditional right to control what happens to her body. The claim ignores a fundamental question: should this right be understood to come with limits or with no exceptions throughout the entire pregnancy? Professional integrity sets justified limits on the preferences of pregnant women. For example, a distraught woman who is 34 weeks pregnant reports that her husband has deserted her and insists on termination of pregnancy immediately. The professional responsibility model requires her obstetrician not to implement her request because feticide is ruled out by the obstetrician’s beneficence-based obligation to protect the life of this fetal patient. The obstetrician should therefore recommend against feticide and explain that no conscientious obstetrician should implement her request. There are many such circumstances in which a pregnant woman’s request for a termination of pregnancy should not be implemented unquestioningly.

Consider the simplistic claim that the fetus has an unconditional right to life or to complete gestation. The presence of a fetal anomaly incompatible with life belies such claims as lacking scientific and clinical foundation, because medicine has no capacity to correct such anomalies. Such claims lack an authoritative foundation in either religion or philosophy. There is no single authoritative perspective from which the incompatible differences of these diverse views on fetal rights can be resolved. To insist on an unconditional right to life or to complete gestation, therefore, has no place in professional obstetric ethics.

The woman’s-rights reductionism approach can apply to intrapartum management. This approach asserts an unconditional right of the pregnant woman to control her body in all aspects of the management of pregnancy, including the performance of caesarean delivery: ‘ … the moral and legal primacy of the competent, informed pregnant woman in decision making is overwhelming.’ ¹² Another expression of this approach at first seems to be non-reductionist. Its authors acknowledge patient safety as a ‘first-order issue’ ¹⁶ and support what they call ‘restrictive guidelines’ based on protecting the life and health of pregnant women. This more nuanced approach, however, is abandoned in favour of the woman’s-rights reductionism model when it is asserted: ‘Crucially, even when restrictive guidelines are warranted the rights of pregnant women to bodily integrity must be maintained.’ Some express this approach explicitly (e.g. that ‘women have fully endowed rights that do not diminish with conception, nor progressively degrade as pregnancy advances to viability and birth.’ ¹⁷ The woman’s-rights reductionism approach has been used to claim the right of pregnant women to have a clinically non-indicated caesarean delivery. Another example is the assertion of the pregnant woman’s autonomy as an ‘unrestricted negative right’ (i.e. an unconditional right to non-interference with refusal of caesarean delivery): ‘autonomy is an inter-relational right — ultimately there is no circumstance in which someone should be brought to an operating room against their will.’

Rights-based reductionism in obstetric ethics is a fallacy, because it unacceptably distorts the professional nature of the relationship of an obstetrician to his or her patients. The professional obligations of the obstetrician originate in the ethical concept of medicine as a profession. This concept was introduced into the history of medicine by Drs. John Gregory (1724–1773) of Scotland and Thomas Percival (1740–1804) of England. This concept requires the clinician to make three commitments: (1) becoming and remaining scientifically and clinically competent; (2) protecting and promoting the health-related and other interests of the patient as the physician’s primary concern and motivation; and (3) preserving and strengthening medicine as what Percival called a ‘public trust,’ a social institution that exists primarily for the benefit of society not its members (in contrast to the concept of medicine as a merchant guild). In the professional responsibility model obstetricians have beneficence-based an autonomy-based obligations to the pregnant patient and beneficence-based obligations to the fetal patient. The evidence-based clinical judgment about diagnostic and therapeutic measures that are reliably expected to result in a greater balance of clinical goods over clinical harms. The pregnant woman’s autonomy is empowered by offering or recommending medically reasonable alternatives, as explained above.

The contrast with rights-based reductionism is stark. Fetal-rights reductionism, despite its simplicity and powerful initial appeal, is fallacious because it leads obstetric ethics into conceptual and such clinical failure. This model, therefore, should be abandoned. Woman’s-rights reductionism is a failure as well and requires the obstetrician to implement birth plans that unconditionally exclude caesarean delivery or the unconditional right to planned home birth. This model eliminates the obstetrician’s beneficence-based obligations to both the pregnant and fetal patients, and therefore reduces the obstetrician to a mere automaton. This model also has absurd implications (e.g. ruling out, as potential paternalism, strongly and repeatedly recommending that pregnant women who abuse tobacco and alcohol seek help and be supported in doing so). Respect for the pregnant woman’s rights allows simply accepting such clinically choices by patients because they have made clinically unwise, but autonomous, choices. This is abandonment from the perspective of professional responsibility for patients. The woman’s-rights reductionism model, despite its simplicity and powerful appeal for many, is fallacious because it leads obstetric ethics to conceptual and clinical failure. This model, therefore, also should be abandoned.