v Introduction
o Fundamental Relationship between Law, Medicine, Public Health and Ethics
§ Law provides answers to the question of what can we do and ethics provides answers to what we ought to do
§ Just because something is legal does not mean its ethical; law provides a minimum of ethical conduct
o What is Bioethics (3-13)
§ The study of ethical principles in medical and biological sciences
o Philosophical Principles informing Bioethics (13-31)
§ Meta-Ethics
· Comes from:
o Religion: Divine Law
§ Revelation, scriptures, traditions and experiences
o Secular Sources: Natural Law or Social Contract
§ Reason, experience/observation, intuition, social agreement or contract
o Relativist: culture, personal preferences and actual social contract
§ One’s own thoughts
§ Normative Ethics
· Consequentialism (Utilitarianism)
o An action is right if and only if, the action will produce the best consequences as compared to the alternative actions that could be alternatively taken by the agent
o The consequences and utility of an act are what matter
o An act is morally right if it maximizes the good: could cause problem of equal good to equal bad
o A benevolent spectator is the one charged with making determination
o Act Utilitarianism
§ Judged on its specific utility in the specific circumstance, in the absence of other factors or aggregated considerations
§ Does the act have utility itself? If yes then ethical
§ Ex. act of giving someone to much meds to make sure get rid of disease is ethical but under rule: greater chance of resistance or building up tolerance so not ethical under rule utilitarianism
o Rule Utilitarianism
§ General rule assessed according to its overall utility
· Deontology (Kantianism)
o An action is right if and only if the action is either
§ A) required by a moral duty, or
§ B) allowed by a moral permission, and NOT
§ C) forbidden by a moral prohibition
o The principles and reasons for an act are what matters; not the consequences
o Act in a way that you wouldn’t mind that act becoming universal law (do unto others as you would have others do unto you)
o Treat all of humanity as an ends; not merely as a means to an end
o Perfect v. Imperfect Moral Duty
§ Perfect: should always follow
§ Imperfect: should obey but may be some exceptions at times
· Areataic (Virtue)
o An action is right if and only if the action is one which a virtuous moral agent would characteristically perform under the circumstances
o The qualities of the actor are what matter
o Virtues are states of character concerned with choice; examples include courage, temperance and justice
o Virtues can derive from secular, religious or professional sources
§ Bioethics Principles
· Principlism (none given authority/more importance)
o Autonomy
§ Notion that person has the ethical right and ability to act as they please
o Nonmaleficence
§ Duty to do no harm
o Beneficence
§ Actively doing good to others
o Justice
§ Equality of opportunity
§ Ethical principles should be made in a veil of ignorance; those decisions will be ethical
§ Each person has an equal right to the most extensive liberty compatible with a like liberty interest for all
§ Inequalities must be arbitrary unless reasonable to think that those inequalities will work out to the benefit of all (difference Principle)
§ Inequalities to be worked out so that:
· Offices and positions must be open to everyone under conditions of fair equality of opportunity
· They are to be of the greatest benefit to the least-advantaged members of society (difference principle)
§ Liberal Individualism
· Individuals have rights that protect them from intrusion, especially from the government
§ Communitarianism
· Ethical actions are those that place the good of the community above those of specific individuals
§ Ethics of Care
§ Rules and Rights
· Rules: duties we owe to others
o Ex. Doctors have a duty to protect patients information: Confidentiality
· Rights: duties owed to us
o Ex. Patient has a right to confidentiality
· Codes of ethics and other rule- and rights- based incorporation of ethics into formalized documents
· How rigidly do rules apply:
No Rules Apply__________________________________________________________Apply Rigidly
Antinomianism situationalism rules of practice Legalism
(rules of thumb)
§ Casuistry
· Using individual case examples to discern ethical pronouncements
o A case based comparison system allows ethical principles to emerge
§ Critical Perspectives
· Central recognition is the reality of existing inequalities along gender, race, ethnicity, class and other lines
· Ex. Feminist Perspectives
o Medical Ethics and Bioethics (31-39)
§ Hippocratic Oath
o Culture, Health, Disease, and Science (39-44)
v Autonomy and Bodily Integrity
o Informed Consent (48-71)
§ Shloendorff v. Society of NY Hospitals (1914)
· Ct first recognizes right of information to patients
· Cordozo says every human being should have right to control
· Minimizing External Influence: both parties have pressures
· Decision: dr. must actually get decision from patient; either written or oral
§ Greenberg v. Miami Children’s Hospital Research Institute
· Must researchers get informed consent on what to do with tissue samples taken or the consequences of taking tissue samples?
· Ct said not going to extend duty of informed consent to economic consequences of research to participants of the research-
o don’t want to chill medical researchers and
o don’t want participants to control the research after donation
· Distinguish this case from Moore v. Regents of California; did research on cells and made him come in more often to get more cells- had cause of action because this was a clinical setting and he was being lied to (told it was to get him better but was really research)
§ Cause of Action for Informed Consent (Negligence framework)
· Duty: to provide sufficient info
· Breach: depends on what standard state uses; reasonable physician or patient
· Causation: most cts focus on objective determination whether would have changed position
o A lot of cts will actually instruct a jury on both objective and subjective determination of whether would have changed position or not if given sufficient informed consent
· Harm
o Once competent patients and Consent (73-75, 82-87)
§ 2 Approaches
· Best Interests of the Patient Standard
o Cost/benefit analysis
o Emphasis on beneficence
· Substituted Judgment
o Emphasis on Autonomy: may not be in patients best interests though
o Judgment patient would have made had they been able to make the decision themselves
§ Written or oral agreement (records)
§ Religious argument
§ Statements made that can be assumed to mean there was a preference of patient
o Difficult if no evidence or ambiguous
§ Sell v. United States
· Won’t be able to bring to trial, for non-violent crime, if not competent, can government involuntarily administer anti-psychotics?
· Looked at past cases:
