By Daniel Tippens
This is third in the series that began with Dan Tippens’ “A short note on the ethics of liver transplantation” and is a reply to Dan Kaufman’s “Moral judgment and medical resource scarcity.”
Dan Kaufman provided some very important insights into the discussion regarding the ethics of organ scarcity, and I am grateful that he took the time to respond to my short note. There are some things we agree on, but also several points of contention.
It is important to first note that the topic of the discussion has changed, in the wake of Dan K.’s essay. In my first post, I discussed one way of thinking about how to frame desert-based prioritization conditions (in terms of reward instead of punishment), assuming that moral considerations such as these have a role to play in the ethics of organ transplantation. However Dan K. argued for the view that no moral considerations should enter the picture at all. Only practical considerations such as expected return of life-years, or likelihood of the operation’s success should be appealed to. So for the purposes of this essay, for the most part, I will be putting aside questions about how to justly implement desert-based considerations, instead discussing whether moral considerations should enter the picture at all.
I said in my first essay that a discussion on the ethics of organ transplantation has implications for the ethics of scarce-resource allocation more broadly. Dan opens his reply piece by noting that we shouldn’t restrict a discussion on the scarce-resource allocation by simply looking at organ scarcity problems, because it is a unique case. I certainly wouldn’t disagree, but for the sake of being thorough, it’s worth noting that Dan’s suggestion is quite consistent with the idea that discussions about organ transplantation have implications for scarce-resource allocation ethics more broadly. It’s simply the case that such discussions aren’t going to be the start or end of the conversation.
But onto the more substantial points. Dan states toward the end of his essay:
I do not think that moral considerations should play any role whatsoever in the allocation of scarce medical resources. Prudential and practical considerations should always be overriding, and I think there is a way of construing the “who will benefit the most from it” principle of prioritization in prudential, rather than moral terms. Beyond that, medical resources should be provided on entirely value-neutral grounds, such as random selection, “first come first serve,” or some other such basis.
Dan thinks that no moral considerations should enter into the picture when discussing the allocation of scarce medical resources, only prudential and practical considerations. By “prudential and practical considerations,” Dan is referring to what I called “medically-related utilitarian considerations”– value-neutral things such as likelihood of a successful operation, and expected benefit in terms of extension of life-years.
I think this view is too strong. Suppose a man rapes a woman. The next day, the rapist is arrested and placed in jail. However, he has a cursory medical examination in prison, and it turns out that he is in need of a new liver, and so he is placed on the waiting list. His victim has a check-up the day after this, and finds out she is suffering from severe liver degeneration, and also needs a liver. Both have equal likelihood of a successful operation, and both are of a similar age. On Dan K.’s view, the rapist should get the liver, since he was placed on the waiting list first. I take this as highly counterintuitive, indeed unjust. The only way to appropriately explain why this would be counterintuitive is to admit that moral considerations should have played a role here, but on Dan K.’s view, they don’t.
Now consider a variation on Dan K.’s own case.
Suppose that there are two people of the same age, A and B. Both need liver transplants, but one is an Alzheimer’s researcher on the cusp of a cure, and only he understands the research thoroughly, the other is not. Practical considerations will not distinguish one from the other, as they both have the same expected return in life-years and same chance of a successful operation. Only one liver is available, so who should get it?
If we knew that someone were about to find a cure for Alzheimer’s disease, I’m pretty sure most of us would think that this person should be given priority. Ask the family of any Alzheimer’s patient and I’m sure they would agree. This isn’t to say that these considerations are always overriding, but simply that they seem relevant and important to consider.
So I take it as a starting point that moral considerations should play some role in scarce-resource allocation. The questions simply are: how much of a role should they play, when should they enter the picture, and which kinds of considerations should be brought in?
Dan K. then advances a criticism against any view that employs a desert-based framework in organ transplantation ethics. His concern is that, historically and presently, desert-based arguments have (and are) used to justify harming those that society condemns:
It seems to me that we engage in this sort of desert-based prioritization only with respect to those whom society currently holds in contempt, which, today, consists almost entirely of smokers, drinkers, and drug users, although you don’t have to go very far back in time to find a similar sort of deprioritization being applied to those suffering from AIDS.
In philosophy (and politics), there is a long history of extreme reactions to views which are shown to be highly problematic. When Chomsky criticized behaviorism, the philosophical community quickly abandoned and even stigmatized the behaviorist framework. Anyone who showed signs of flirting with the view was subject to social and professional penalties — assumed to be a full blown (bad) behaviorist.
This kind of thing can also be seen in politics when, for example, the civil rights movement was unfolding and affirmative action was implemented. The endorsement of the affirmative action policy has come to be viewed as the clear position to take if you are against racism. Indeed, if you hold the idea that affirmative action should be abandoned or even that it might be problematic, this is frequently equated with racism, something that Glenn Loury and John McWhorter have pointed out on more than one occasion, on their regular program on Blogging Heads TV. Flirtation with a view similar to one that has historically proven problematic is tantamount to endorsing the problematic view, or at best, advocating a dangerous position which shouldn’t be considered.
I suspect this disposition is being manifested here. Dan K. has seen how moral considerations can be problematic when used in medicine — indicated in the passage above — and has planted his feet firmly in the polar-opposite territory, holding that we should eschew any appeal to moral considerations in medical practice, for they have historically and presently been used for bad purposes. Further, he seems to think if you flirt with a desert-based view that involves moral considerations, it should be suspected of being in the category of the full-blown historically pernicious views. The analogy with behaviorism and affirmative action seems quite apt.
But, taking a cue from the history of behaviorism and affirmative action, that people abuse desert-based arguments is not a reason to abandon them altogether, it is simply a reason to be careful about how they are framed and about how they are implemented. Indeed, if you think that certain frameworks being misused historically is an argument to not employ them at all, then we would have to call Dan K.’s position into question as well. Recall that historically people have used all kinds of frameworks and arguments to oppress those who were socially disapproved of, even non-normative things, such as empirical work (phrenology, anyone?). People don’t just use moral arguments to oppress, they use whatever they can get.
Now remember, Dan K.’s position advancing the idea that expected life-years gained and likelihood of success should be the only considerations that precede the first-come-first-serve principle or the random generator. By his criteria, the elderly (people over the age of 45 based on statistics about organ-transplant needs), disabled, and certain genders (since certain genders have lower life expectancies and indeed different chances of success with an operation or treatment) would be widely deprioritized. But, historically people have discriminated against these groups using things like scientific data and prudential considerations. Should Dan K. be subject to the same “historical” criticism that I was subjected to? Perhaps you think the reason that my view is vulnerable to this objection, while Dan K.’s is not, is because I’m employing a desert-based framework while he is employing merely a value-neutral pragmatic framework. But then you are begging the question — for the very thing we are disputing is whether it is fair to appeal to moral considerations in scarce-resource allocation decisions. The upshot is that any prioritization criteria will be susceptible to the historically based argument that Dan K. advances, simply in virtue of deprioritizing some over others. But since Dan K. also thinks that prioritization criteria, albeit prudential ones for him, should be considered, the historical argument loses its force.
Dan K. also advanced an objection to my particular reward-based view, which is that it constitutes a distinction without a “relevant” difference. My position, as you may recall, is that when medically-related utilitarian considerations are equal between two patients, the nonalcoholic should get the liver over the alcoholic, and this is *not* because the alcoholic is being punished or has done anything wrong, but rather because the nonalcoholic deserves the liver more here.
My position is in contrast to deprioritization as a result of moral condemnation — the alcoholic should be deprioritized because he did something blameworthy, and is being, essentially, punished. Dan K. says:
Whether one characterizes the prioritization of one person over another in terms of punishing the denied person or rewarding the chosen one, it is based in part upon determining whether one of the parties has done various things that have led to his needing the scarce medical resource — the smoker needs cancer treatments because of his smoking, the alcoholic needs the liver transplant, because of his drinking, etc. This dimension of the choice is not changed by the fact that Dan T. wishes to characterize the prioritization itself in terms of the desert of the person who has not done these things and has, at least in that regard, taken better care of himself. That this is a distinction without a relevant difference – giving John the liver transplant over Bill because John deserved to get it versus giving John the liver transplant over Bill, because Bill deserved not to get it – quickly becomes evident, when you adopt Bill’s position and ask yourself whether you’d feel any better at being told you were going to die, because someone else deserved to live more, rather than because you deserved to live less.
Dan says my position simply advances a distinction without a relevant difference, and the reason is because it is functionally equivalent, in terms of who gets deprioritized, to the punishment-based view. His intuition pump involves imagining that you, as an alcoholic, need a liver and are told that you are going to die, because someone else deserves the liver more.
But I find this highly problematic for a couple of reasons. First, note that Dan says this is a distinction without a relevant difference. The question is, relevant to whom? Sure, my distinction makes no difference to Bill, but it makes a difference to medical students and nurses, and what attitudes they hold toward alcoholics — do they view alcoholics with condemnation, or without it? If the arguments they hear for deprioritization are constantly placing explicit blame and condemnation on alcoholics, their attitudes will reflect this, and will manifest in the way they care for such patients. If you keep the punishment-based arguments, this condemnatory attitude would, and indeed has, dissolve into society as a whole. This is an outcome that the reward based view mitigates.
The other problem I have with his intuition pump is that it says something about the tragedy of having to prioritize some over others generally speaking, but not something problematic about my particular distinction. Let me elaborate. First recall that Dan K. thinks that things like life expectancy and likelihood of success should play a role in determining who gets scarce resources, and he wants to frame these considerations in prudential and practical terms, instead of moral ones. Well, who is going to appear to be deprioritized by his criteria? As I said earlier, people over the age of 45, people with certain disabilities, and indeed even certain genders.
Now, when you tell the 50-year old man that our decision to relegate him to death instead of the 45 year old man not because of utilitarian moral reasons but because a 45 year old will prudentially get 5 more years than he will, will that really matter to him and his family? No, because he and his family will still suffer through his death. The point is that Dan K.’s intuition pump shows much less about my particular distinction than it does the tragedy of scarce resource allocation more broadly. Any time you outline prioritization conditions, it is not going to matter how those conditions are framed to the people who get deprioritized and are relegated to death. But the framing will matter for our societal attitudes toward these people, which is probably one of the reasons why I think Dan would want to frame his conditions in prudential and not moral terms.
Where does all of this leave us? Well, in my mind, any set of criteria for prioritization and deprioritization is going to face historical concerns about abuse, but I don’t think we should give up prioritization altogether. As such, the historical criticism is not a reason to abandon all forms of prioritization, but rather a reason to be careful about how we implement and frame our conditions. Dan K.’s intuition pump supporting the idea that I make a distinction without a relevant difference also fails, for the reason I provided earlier. If you are not willing to bite the bullet of the rape case mentioned at the beginning, then you should not be asking whether moral considerations should play any role at all in medical practice — you should be asking where and when they should, and which kinds we should appeal to.
Comments
20 responses to “Should moral judgments enter into medical decisions?”
Hi Dan T, I am having a hard time understanding if I should comment or not.
This was a nice rebuttal*, targeting an obvious weak point (or two) in Dan K’s position (and as it happens, mine). But I am familiar with these weak points and the responses I would make to defend them. Given our similar viewpoints (so far) I must assume that Dan K will likely take the same approach.
So should I wait and see what Dan K writes, then make additions at that time (if he takes a different tack)? Or should I go ahead and make my case now?
*It was nice enough that I will “like” it, despite remaining in opposition.
Hi dbholmes,
Feel free to make your points now! Dan K and I were hoping to see more lively discussion down here. In fact, our conversation in the OPs is supposed to be a series of cursory responses to one another so that more can be fleshed out in the comments.
First of all, for dbholmes and everyone else reading, yes, please, comment *now*, as we go along. The whole idea was to conduct our argument in such a way that people could participate with us and even affect future installments — i.e. in my next piece I might reply not just to what DT has said but to what commentators have said.
Second, kudos to DT for a robust and comprehensive reply. As before, I will save my full reply for the next essay in the series, but here’s a preview of what I’m thinking about:
1. I am very, very suspicious of the “rapist” argument *for* the moralizing of medical decisions. Scratch that — I think it’s utterly hopeless (and extremely dangerous).
2. It is *not* the case that my opposition to moralizing medicine is due to misuses of moral criteria. I think such criteria are *always* misapplied — that is, *cannot be* correctly applied.
3. DT’s takedown of my argument for the irrelevance of the distinction he wants to make — between denying someone a kidney, because they deserve to die, as opposed to denying it to them, because someone else deserves to live more — is a strong one to which I will have to give some hard thought. That argument, recall, was that if you asked the denied person whether it would make him feel any better to find out that that he had been denied because someone else deserved to live more, rather than because he deserved to die, they likely would say “no.” DT points out that they also wouldn’t be made to feel better by being told that they were going to die for prudential reasons — which I support the use of, in making medical scarcity decisions — and in doing so, he has revealed the weakness of this kind of case. I will have to come up with another one or else drop that critique altogether.
As interesting as I find this discussion, there’s a debate related to predictable outcome or success that already takes place in medical terms, and this discussion might have benefited from a discussion of current practices, though these likely vary depending on where one lives. https://optn.transplant.hrsa.gov/learn/about-transplantation/donor-matching-system/
I am finding this to be quite an interesting debate.
I found DanT’s reply fairly persuasive, and am leaning in the direction of his latest argument. It seems to me that a primary concern to the question of how to best allocate scarce medical resources resides in the inevitable variability that will characterize any individual case. How does a society devise a standard set of rules or criteria or guidelines for making these types of decisions even if based only on prudential values and how does the decision making process remove potentially corrupting influences such as the fame or wealth of the patient. What factors would go into the estimation of the utility of the medical procedure? It would seem lifestyle factors would have to play some role in the decision process if they are likely to effect the long-term success of the procedure. Or by success in prudential terms are we merely talking about the patient not rejecting the organ in the short-term? I will take a look at TJ’s link to see what some current practices are.
Is there a reasonably short definition of what most current philosophers see as the demarcating line between a moral and prudential value. The judgements being referred to here as prudential ( likely ‘success’ of procedure ) seem to overlap moral concerns to me. The judgement that a procedure that improves health prospects going forward as positive seems pretty uncontroversial, but it does seem like a moral judgement to me. Can one of the two Dan’s clear up my confusion here? Thanks as always.
TJ: It was so informed. Dan T.’s original essay made significant use of an AMA paper. The problem with medical ethics as conceived by medical practitioners is that they typically aren’t particularly expert in ethics.
Well, we’ll have to disagree on the point of expertise, Dan. I think that on the basis of time constraints alone, the ethical questions regarding the “suitability,” for lack of a better word, of the recipient will always be controvertible–assuming scarcity–and must yield to other practicalities, lest one create another ethical dilemma regarding the waste of a scarce resource that is posited as a given in this discussion.
“medical practitioners … typically aren’t particularly expert in ethics”? There are expert ethicists who can help with all our decisions somewhere? Who agree with one another? Medical students spend more and more time studying this stuff, and further deal with it on a everyday basis once graduated.
The current Australian guidelines for transplantation are pretty close to the consensus (rights based).
http://www.nhmrc.gov.au/_files_nhmrc/file/publications/16113_nhmrc_ethical_guidelines_fot_web_0.pdf
“there must be no unlawful or unreasonable discrimination against potential recipients on the basis of: race, cultural and religious beliefs, gender, relationship status, sexual preference, social or other status, disability or age; need for a transplant arising from the medical consequences of past lifestyle; capacity to pay for treatment; location of residence (e.g. remote, rural, regional or metropolitan); previous refusal of an offer of an organ for transplantation; refusal to participate in research.”
Their “Case Study 3”:
Sure, he might stop as soon as he undergoes transplantation…
and on retransplantation:
This idea of deprioritising based on so called moral reasons doesn’t take into account the fact that people aren’t islands – a death affects families and communities as well as the individual.
Take this scenario – two 45 year old men, one alcoholic and one not, who need transplants. Both have two young children and a disabled wife. Neither have life insurance. Wouldn’t punishing (sorry, “deprioritising”) the alcoholic also punish the family?
I find that sort of thinking disturbing, really. I also think the idea that if was only better administrated we could avoid abuse to be hopelessly naive.
That Australian document demonstrates that making these decisions is complicated enough without trying to make moral judgments.
I think that the complexity of the medical issues involved means that a prioritisation of these moral factors would come at the expense of medical factors.
I also would like to walk back the ‘hopelessly naive’ comment. I’m harsh when I’m typing in a hurry.
TJ and DavidL.Duffy:
I certainly put the point re: expertise too shortly and without sufficient elaboration. All that I really meant was that a medical ethicist coming to the subject from a philosophy Ph.D. as opposed to one coming from within the profession is going to be better educated in the Ethics literature and may see ethical dimensions of an issue that others might not. My original reason for saying what I did was in response to TJ’s claim that DT’s essay would have benefited from more appeals to the medical literature and current medical practice. I observed that much of DT’s remarks *were* based on an AMA medical ethics piece and that furthermore, ethicists who come from within the profession may not know the ethics literature as well as those who come from philosophy. In my view, the sources cited — not to mention the one DT cites — bears this out.
It was not meant as a particular important point. Nor especially controversial. It seems obvious to me that a medical ethicist coming from philosophy is more likely to know utilitarianism and deontology more thoroughly than one coming from within medicine.
Carefully written critical response, Dan T.
I am going to hold to the remark I made on DanK’s text, that there’s no way to keep a rewards-based criteria from looking like a punishment-based criteria. Your argument here is that such a distinction has social value – even if it doesn’t make the family of the unrewarded feel any better, it disseminates into the attitudes of practitioners and into the larger social web in which they all live. But the history of racism in America indicates that this is unlikely to be effective. I support affirmative action because certain selection practices, such as hiring, have always been held to be ‘reward’ based, respecting qualifications of applicants, and yet have proven time and again to involve bias on the part of those making the selections. So talk of ‘qualifications,’ while undeniably having some substance, also goes far to assuage the conscience of the biased, thus leaving their bias unchallenged.
Background biases of those making the kinds of selections we’re now discussing (transplants) will be present and will be involved in the selection process, and simply providing a redefinition of the moral implication of the selection, could easily be used as cover for those biases. The reason why certain laws and regulations (such as the Australian guideline davidlduffy provides) are often so sweeping is to make influence of such bias easier to recognize, and easier to challenge in court.
Such guidelines are probably as general as we can get in an issue like this. I feel like so far we have been searching for general principles applicable to generalized cases (‘the rapist’ actually stands in for rapists generally, ‘the victim’ for all those in similar circumstances), but this may be misguided. Ultimately practitioners do – and should – make their decisions on a case by case basis – as individuals, regarding individuals, responding to community interests. To do so properly they need to consider as many of the details of the candidate-recipient’s life and circumstance as possible – but often this not very possible, especially when there are time constraints. (And practitioners must also be aware of their own biases, which is unfortunately not often the case.)
So, we have an imperfect system, and probably no systematic way to perfect it. Putting the questions into play in order to raise awareness of the issues involved may be the best we can accomplish here.
Hi Dan T, sorry for the delay… This first part is a general setup…
Remember my claim from the first essay was that the issue we seem to be dealing with is a question of justice as it applies to distribution of (insufficient) medical services. As such it is pretty easy to point out that I am arguing a moral/ethical dimension (Justice) is of concern in medical decisions somewhere.
I just happen to believe that they come in prior to making decisions in particular cases, and are used to determine what general parameters are most useful to achieve those ethical goals. Thus I use an interest in Justice as applied to limited resources (this goes beyond medicine) to determine/argue that prudential concerns are the only relevant parameters to use when assessing decisions/actions in medical cases.
To deviate from this practice (as we have been arguing using specific examples) can be seen to lead to unjust outcomes.
Including moral assessments of individuals or the maximization of some general “good” during triage, is especially prone to generate unjust outcomes (in the sense of distribution of resources) rather than just outcomes.
Next I will get to your examples… 🙂
Hi Dan T, part two…
1) It is clear that no one is going to be happy about being denied an organ (or service) whatever the reason. So you are correct that a person being denied this on prudential grounds is likely not going to be any happier than if it were on moral grounds. The relevant question is exactly why they would be unhappy. There is a difference between “this sucks that I will not get it and will die”, and “this sucks because the decision itself was not based on criteria of direct relevance to the service being considered (which means it makes no sense) and so I will not get it and die… simply because they don’t like me as much.”
The example you gave (where age was a determining factor) is something everyone could face and has some direct bearing on the service. It is not an idea that people that have aged are less worthy, or in your alternative the young have done something laudable, to get the service. Thus there is a sense of equality in application, and in any case a reason related to the service itself, which makes it Just. One might complain about the injustice of the universe you need it, or that there is not enough of a resource you can get it, but I do not see how one argues arbitrary bias on the part of the medical staff in using that criteria.
The whole point here (with scarce resources) is someone is going to be upset when they do not end up with the service. So what system are you going to use to make it as “Just” feeling an outcome for all considered? What system is less likely to invite unjust results?
Note: I am skipping gender deprioritization for space but is addressable (there is an argument for gender neutrality).
More to follow…
Hi Dan T, part three…
2) On the example of the patient with a potential cure for Alzheimers (or anything else), if it really is something that everyone would agree is important then it would seem we could simply ask the person who would get the service under normal criteria if they would be willing to “sacrifice” their own safety for that person to get it.
But that is not the most important point I’d want to make. That example is flawed in that saving a person that is certainly going to provide a cure for another disease gives a prudential reason for treating them first, and not a moral one. Basically the scenario means operating on that one person will save countless millions of lives in addition compared to saving just one person.
3) The example of the rapist is simply a confounding of two different applications of Justice. I will be interested to see Dan K’s promised refutation, but agree it is going to fail. I will give one argument which is the first one I would use. Here you have built in something very different than the original question, which is if we should include moral considerations of the patient. The direct example you would need to use to make that particular case would be a rapist versus a nonrapist, or perhaps some woman who had been raped but not by him.
To use a rapist and his victim is to evoke emotions/concerns related to exacting Justice for the rape which occurred (so legal or moral Justice related to specific criminal acts that have caused harm). Indeed it seems to evoke an image of the rapist taking one more thing from his victim (so further victimization).
Hospitals are not courtrooms (or execution sites) where that kind of justice is dealt with or meted out. It is the same reason why medical personnel in the military are expected to treat friend and foe alike, sometimes to the detriment of friend. The type of justice being addressed in hospitals is different.
This is not to go into the horrific consequences such an idea (medicine as legal/moral enforcement) could lead to in the real world if adopted in general.
So yes, I would tend to bite the bullet as you suggest. That situation may seem tragic but one thing has nothing to do with the other… though there may be a legitimate practical/political argument for deprioritizing convicts in general (which would by happenstance benefit the hypothetical rape victim).
Fin.
If moral considerations were taken into play, at what point are they considered? Would it only be when the medical circumstances are otherwise identical (which would almost never happen) or would the moral trump the medical?
That is something I would like to see discussed in the next instalment.
A personal note here:
… so, let’s say I’m on a list of three candidates for receiving a liver. One other is a young black man (let’s call him Job), who has led a difficult life with frequent brushes with the law. The third is Donald Trump, possibly the next president of the United States.
I would much rather have this selection made on the basis of a roll of dice than by any criterion, moral or utilitarian. If I win, I’ll presume that gives me authority over the choice, and I defer it to Job (since this would simply make sense to me). If I lose (whether to Job or Trump), well – such is life.
So far, recipient candidate in-put has not been considered much in this discussion, perhaps on the presumption that they would insist on ‘life-at-any-cost.” But after all, they are have an ethical choice to make in such matters as well.
I must have missed something essential. I thought that almost every possible aspect of medicine (preventing disease and human physical and mental suffering, curing illness) inevitably has moral underpinnings one way or another. Isn’t the fact that medicine exists at all a proof of the fact that we have made moral judgements about the relationships among humans? Every decision in medicine is ultimately moral based.
Per Lundberg: I don’t see this at all. Why couldn’t the rise of medicine be the result of a combination of prudential and emotional considerations that have nothing to do with moral judgments whatsoever?
Hi Per Lundberg, what Dan K said is absolutely correct. While specific decisions an individual doctor or nurse might face in certain situations might rely on direct moral guidance or guidelines established previously by moral concerns, purely prudential or emotional concerns are enough. And–unfortunately to my point of view–a large part of medicine, including research, has become bound up or driven by legal and/or fiscal concerns.