A Christian framework for professional ethics

Paper presented by Denise Cooper at the CLS breakfast on 8/11/05

In 1979 Prof. Ian Kennedy, an academic lawyer, gave a lecture to doctors and medical students at the Middlesex Hospital. He began by reminding his audience that he was a lawyer – so that “they could reach for their blood pressure tablets or turn off their hearing aids”. So let me begin by reminding you that I am a doctor and a medical ethicist. Prof. Kennedy referred to the “state of undeclared war “ between the two professions in the US, but the war now seems to be well and truly declared. In 2004 Dr. Chris Hawk, a surgeon, brought a proposal to the American Medical Association asking it to adopt the position that it was not unethical to refuse medical care to attorneys involved in medical malpractice cases and their spouses, as was already occasionally happening. Some doctors have also refused to treat legislators who oppose caps on the amount of damages which can be awarded in medical malpractice suits. Now it should be emphasised that this proposal did not include the refusal of emergency treatment, and even more importantly, it was overwhelmingly opposed at the AMA meeting. It was argued that since doctors are obliged to offer treatment even to mass murderers and enemy combatants, lawyers could not be turned away. But this might give you some idea of the strength of the hostility between our two professions.

Fortunately I have never experienced the hostility of the legal profession towards doctors first hand, though when studying two units of law in New Zealand I gained some insight into it. A very successful barrister spoke of the blood sport of cross examining medical expert witnesses. The overall impression was that lawyers needed to protect people from doctors who were either incompetent or arrogant or both, and that the medical profession required constant scrutiny and increasing legislation to keep it honest. This I think is where the real problem lies. Sure, doctors feel threatened by lawsuits, but at a much more profound level they feel that the very character of their profession is being eroded and taken over by outsiders, particularly the law. And that, actually, I don’t think is the fault of lawyers. Or at least not of the legal profession, though perhaps of some individual lawyers. The main problem is the ethical vacuum at the centre of our liberal secular society. Vacuums must be filled, and the law is a prime candidate to step in when there is no agreement about morality.

It’s easy to see the conflicts between doctors and lawyers as being the fault of bad practitioners – lazy or incompetent doctors, unscrupulous or rapacious lawyers. Actually I think the conflict arises ( or I’d prefer to say a creative tension exists) when doctors and lawyers are behaving well, behaving ethically, according the standards of their own professions, precisely because they are different professions and they have different goals, different values, different ethics. In other words, when professional ethics are in good order there is bound to be tension between different professions. Doctors and lawyers in some sense actually see the world differently. Let me give you some examples. When I was studying a unit in law and psychiatry, our lecturer proudly told us of a number of psychiatric patients whom he had successfully had released from compulsory hospital treatment, and he mentioned that some of them went on to commit suicide. I can’t describe how horrified I was. I asked him how he could cope with knowing that he had in that way been partly responsible for a patient’s death. He replied that his duty to his client was to uphold her legal rights not to be detained if she didn’t fit the criteria. “It’s sad,” he said, but that’s not my responsibility”. I simply could not understand his point of view, as he could not understand mine. He saw a client, I saw a patient. His goal was the client’s legal rights, mine (and the doctors who wanted the patient detained) her health and life. Our priorities and aims were quite different.

Another example is the question of whether doctors may perform an emergency Caesarean section on a woman who has refused the procedure and is competent to do so, when there is a serious risk to her life and that of the unborn child. A lawyer sees this situation in terms of competing rights: the pregnant woman who has an almost absolute right to self determination over her own body versus the unborn child, who actually has no legal existence or “rights”. The goal is legal justice. But the obstetrician sees the situation quite differently, instead of one client he has two patients, to both of whom he owes a duty of care. The goal is the life and health of each, which actually are intimately bound up with one another, in a relationship of mutual dependence. From a legal perspective, there can be a “winner” – the mother, even if she dies in the process. From a medical perspective there can be no winners: it is a truly tragic situation.

One way to resolve the conflicts between professions is to flatten out the differences between them. To remove any distinctive moral commitments they have and say we should all pursue the same goals and operate on the same ‘universal’ values. I wonder if I can give you any idea of what it’s like to belong to a profession which is increasingly told it cannot set its own values and ethical standards? In his lecture, Prof. Kennedy warned his medical audience he was an outsider, but went on to tell them that they needed to strictly separate technical medical decisions, for which he admitted they had some expertise, from moral decisions, for which he said they had no training or expertise (so they should be guided by people like him). He said that they should make moral decisions not on the basis of their own moral convictions, or even on those of the medical profession as a whole, but on general moral principles. He did not explain what these general moral principles were, in fact in our society I would say there are no such things, but let us say that we could approximate them, perhaps by taking opinion polls or by using legal standards. What he is saying is that doctors should set aside their own moral judgment, their conscience, their medical tradition, and become the tool of the general moral standard of the community. Fortunately I can only think of one example where doctors have actually done this, and that was Nazi Germany. I wonder if Prof. Kennedy would apply the same rule to the legal profession. Would he advise lawyers to give up their ancient traditional ethical standards, say in relation to client privilege, or to set aside their individual moral convictions in favour of the way the general public thinks they should behave? What would we lose if doctors stopped thinking and acting like doctors and lawyers like lawyers? In other words if there was no such thing as professional ethics?

Well let’s look at one example Prof. Kennedy gives: abortion. He believes that a doctor working for the NHS in Britain (almost all of them) should not have the right to conscientious objection to performing abortions – since Parliament has voted to allow abortion (and therefore presumably he thinks it is a general moral principle that is it is permissible) and the doctor must be guided by this rather than his own moral view or indeed that of his profession. He says “it is no part of the doctor’s role qua doctor to legislate morality for others and impose his views on others”. Quite apart from the enormous question begging of whether because something is legally permitted that makes it morally permissible, let alone obligatory, Kennedy is working with a model of the doctor as a kind of vending machine, dispensing services on demand. Presumably the same kind of argument would apply to euthanasia when it is legalized: no right of conscientious objection. Can you imagine being forced by law to perform abortion or euthanasia against your own moral judgment? With the choice of leaving your profession if you don’t want to do it? The medical profession has objected to both practices for millennia- even in pre Christian societies. It is telling that the analogy Kennedy uses to support his argument comes from the law- a barrister cannot refuse to represent even a terrorist on conscientious grounds, because of abhorrence of terrorism. Neither can a doctor refuse to treat a terrorist, or an abortionist out of abhorrence for their deeds. But they can refuse to perform an abortion, just as a barrister can refuse to perform a terrorist act in the course of representing his client. Do we really want doctors or lawyers who do just what their patients/clients ask without question? As long as it fits with general community standards? Or do we recognize that there is a difference between thinking in a general way that something is permissible, such as abortion or euthanasia, and actually being prepared to do it yourself? And might we not think that the people who have to actually do it might see it differently, even more truly than those at a distance?

But let’s look at these “general moral principles” that Kennedy thinks should replace professional moral judgment and see how far they get us.

First we need to resolve the question of meta-ethics. Is there any objective basis for calling something right or wrong, or is it subjective? Can anything be either right or wrong depending on your point of view, or more likely, your cultural point of view? Most people agree that such radical relativism is incompatible with the discipline of ethics- there’s simply nothing to talk about. In that case, public opinion and /or the law just steps in and tells us what we can and can’t or must do. We can’t meaningfully talk about moral decisions. But if we can use the terms right and wrong in nay meaningful way, what objective standard or basis will we use?

This is the concern of normative ethics: the question, “What makes something right or wrong?", and there are only three basic answers. The first is that x is wrong because it produces harm to someone. Or more subtly, it produces more harm overall than benefit. If this is the way you think we ought to determine ethical questions, then you are a consequentialist. This normative theory of ethics says that:

An action is right if and only if it promotes good consequences. The most prevalent version of this theory is utilitarianism, which specifies that

An action is right if it promotes the best consequences.

Another way of thinking about this is as a harms/benefits analysis. This seems to make “ sense” in many situations, but it sometimes produces odd results, or conclusions which run counter to some of our deepest moral intuitions. What is being claimed here is that no action is right or wrong in itself, but is only made so by the consequences it promotes. So, in unusual circumstances, murder, lying, theft, torture, may not only be permissible but obligatory. There can be no such thing as individual “rights” because only the overall benefit counts. It’s simply a matter of doing the sums and maximizing the consequences.

Running counter to consequentialism, and absolutely incompatible with it, are the non-consequentialist normative ethical theories which claim that there are some actions which should never be done, no matter what good consequences they promote. The classic example is the punishment of an innocent person. In consequentialist theory, the only ethical justification for “punishment” and the only way to determine what form it should take is the consequences. If prevention/deterrence of future this can be achieved by the punishment even execution of an innocent person, then this is entirely justifiable. Similarly, torture can be justified on the basis of prevention of very bad consequences.

There are two types of non-consequentialist normative ethical theories: deontological, and virtue. Deontological theory says that:

An action is right if it is in accordance with a moral rule or principle

Such moral rules or principles may be derived from divine law, natural law, or reason. One very important contemporary version of deontological theory is the Human Rights Movement. To proclaim a right, such as the right to life, or free speech, or the right to die with dignity and so on, is to invoke a moral rule, to claim that there is a duty to provide, or at least not to interfere with, these things. Rights language is very strong moral language and is inherently incompatible with utilitarianism. You must not violate such and such a right, no matter what the consequences. In Australia, powerful rights language coexists with a strong emphasis on utilitarianism, which may explain some of our ethical confusion.

Among academic philosophers and ethicists these have been the two dominant approaches to “general moral principles” since the Enlightenment. Apart from divine command theory, both attempt to derive ethics from human reason, but they are illogically incompatible, and interminably in disagreement. There are very few if any “general moral principles” which ethicists agree on, or even if there can be such things. This has led to what some call the moral bankruptcy of Western liberal secular societies.

But there is another non-consequentialist ethical theory, which brings us back to the idea of professional ethics. Virtue theory says that

An action is right if it is what an agent with a virtuous character would do in the circumstances.

Virtue theory was the dominant way of doing ethics in the classical Greek era, and throughout the medieval period of Catholic ethics. Then it fell into disrepute with the so called Enlightenment, but has enjoyed something of a renaissance since the 1980’s largely due to the work of Alasdair MacIntyre. Put simply, it says that there is more to the moral life than what a person does or does not do. The kind of person that you are is also relevant. It focuses on the development of good character and the acquisition of virtues or character traits, which it is claimed will then flow on to right decisions.

Does this ring any bells for you? What does Jesus say about character and action? The beatitudes commends a series of virtues: meekness, hunger for righteousness, mercy, purity of heart. The rest of the sermon of the mount makes clear that not only external actions but attitudes of the heart are significiant, indeed, words and actions reflect what is in the heart, whether good or evil. He told the Pharisees whose behaviour was impeccable, to “Clean the inside first” for “it is from within, from within the human heart, that evil intentions come: fornication, theft, murder, avarice, deceit etc… all these evil things come from within, and they defile a person” (Mark 7: 21-23)

So there are certain universal Christian virtues (we could also think of the fruit of the Spirit in Galatians 5). But it is also true that particular qualities or virtues are important in different professions: in the health professions they are compassion, kindness, sincerity, humility, patience, respectfulness, wisdom and so on. In contrast there are also well recognised vices, at least among the medical profession: arrogance, thoughtlessness, rudeness, insensitivity. What about the legal profession? The particularity of different professions, which forms the basis for distinctive professional ethics, is not spelt out as such in scripture. But it is hinted at in the way scripture assigns responsibilities to different roles and relationships. Husbands and wives have specific moral obligations to each other, as do parents and children, masters and slaves, which are not covered by universal general moral principles. So, the unique doctor patient and lawyer client relationships generate particular obligations. Virtue ethics allows for different people to see things differently, because they stand in different places in relation to the decision. It does not assume a universal “out there”, detached position for the ethical decision maker. Different roles carry different priorities and responsibilities. A lawyer’s responsibility to a client is different to a doctor’s responsibility to a patient, which is different to a parent’s responsibility to her child.

And all of these roles bring responsibilities to clients, patients, children which are not owed to every other person in the community. In contrast to other theories, virtue theory allows that there is no one right answer for everybody to an ethical question should x do a to y? rather, who x is, in what role they are acting, and the nature of relationship between x and y is morally relevant. So we would expect lawyers to come up with different answers to doctors.

Historically, one of the marks of a profession is the profession of certain distinct values and codes of conduct, which derive from the distinctive, intrinsic goal of that profession. The Hippocratic Oath did not reflect the broad consensus of society in general but the particular convictions of a group of physicians.

We can explore this idea further using MacIntyre’s concept of a moral practice.

Any coherent and complex form of socially established cooperative human activity through which goods internal to that form of activity are realised in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of, that form of activity. (i)

And he then defines a virtue as:

An acquired human quality the possession and exercise of which tends to enable us to achieve those goods which are internal to practices and the lack of which effectively prevents us from achieving any such goods. (p.191)

This allows for different moral practices, such as education, law, nursing, and medicine to have distinctive goals, or aims, or core values, or mission statements, which MacIntyre calls internal goods. These in turn shape the qualities of character or virtues which people engaged in those practices need in order to do them well. A person who is a good doctor would not necessarily make a good lawyer.

But moral practices do not, cannot exist in a vacuum. And this explains why the specific character of our ancient professions has been so eroded – certainly medicine, and I suspect, law. Moral practices need to be sustained by rich or thick moral traditions, such as the Judeo Christian tradition. Only such a tradition can give significant content to concepts like health and justice, which I take it are the respective goals of our professions. But we no longer have such a rich tradition in our society in general to sustain these practices. The liberal individualist tradition is very thin, it’s pared back to a minimalist notion of both health and justice which amounts really to individual autonomy. Health is what the patient, increasingly the client) wants it to be, and justice is primarily about individual rights. We leave it up to market forces to deal with the distribution of both, which are increasingly seen as commodities. Whereas the Christian tradition has very rich contentful and complex reflections on both health and justice. So Christian doctors, and I think Christian lawyers will increasingly find themselves uncomfortable with their professions as they both drift away from their Christian foundations and from their distinctive commitments.

Some lawyers are pretty keen to tell doctors how to behave, but according to MacIntyre the argument about the nature of the goals of a practice is validly conducted only by those people actually engaged in the practice, not ethics experts or advisers from outside. So I can only point you in the direction of what I believe is a useful framework for understanding, and perhaps finding a way through, your genuine predicament.

(i)  A MacIntyre After Virtue 2nd ed. Notre Dame: University of Notre Dame Press, 1984 p.187.