The President's Council on Bioethics
Thursday, September 11, 2008
Session 3: Conscience in the Practice of the Health Professions
Full Text
CHAIRMAN PELLEGRINO: Thank you very
much. Our next speaker is Dr. Howard Brody .
What I wish to do with you this afternoon is to
start with a very brief case study to simply give us a concrete example of
what we're talking about, and then I want to spend most of my time offering
an account of how to think about conscience and why its dictates may differ
from professional obligations and basically present to you what I'll call a
two-promises model. And then I will try to suggest at the end, perhaps
rather briefly, that there are helpful ways that this two-promises model
gives us suggestions that may possibly help in resolving conflicts.
DR. BRODY: I would like to echo Dr. Lyerly 's comments
of gratitude for the opportunity to speak with you this afternoon and be
part of this very important process. Dr. Pellegrino has already scolded me
with regard to the quantity of slides that I brought with me, so I promised
that I would move expeditiously. And I've also, at least by e-mail
attachment, made available to the Council a manuscript, which is a somewhat
fuller elaboration of what I have in the slides, and if any of you are
seriously bothered with insomnia, I trust that you'll be able to get copies
of that for your perusal.
What I wish to do with you this afternoon is to start with a very brief
case study to simply give us a concrete example of what we're talking about,
and then I want to spend most of my time offering an account of how to think
about conscience and why its dictates may differ from professional
obligations and basically present to you what I'll call a two-promises
model. And then I will try to suggest at the end, perhaps rather briefly,
that there are helpful ways that this two-promises model gives us
suggestions that may possibly help in resolving conflicts.
So the case study I'm going to focus on is the case that appeared
initially in the American Journal of Bioethics that a colleague and I
responded to in a paper that I suspect may have had something to do with my
having been invited to speak to you. And basically this is a situation of
the prescription of the morning-after pill or emergency contraception where
the prescription is presented to a pharmacist, and the pharmacist objects to
filling the prescription based on religious or philosophical grounds,
perhaps any use of this medication or perhaps for this particular patient.
And the key assumptions here are that the pharmacist here is a health
professional so that in important ways is analogous to a physician or nurse
or other health professionals, and the debate we're having - although we
need to talk about this some more - is not primarily a scientific one. It's
not that the pharmacist says the risks are much greater than what the
physician thinks or that the efficacy is much less than what the physician
thinks who wrote the prescription.
And I was not aware at the time that I started working on this the extent
to which apparently you wish to talk about end-of-life issues as part of
this general session, but I would suggest that this case is in important
ways analogous to end-of-life issues as well, because if you think about
end-of-life issues, either to provide aggressive life-sustaining treatment
or to provide palliative comfort oriented treatment that's providing a sort
of package of care to the patients, then, again, you have the situation
where the provider is being asked to provide a treatment of some sort to the
patient and the provider has a conscientious objection to offering that
package of care. So I think we can use this case as a jumping-off point for
the more general discussion.
So I want to talk about how we should construe a conscientious objection,
and all through I'm going to assume a good-faith, honest appeal to
conscience, not an insincere appeal to conscience. What is the relationship
between a conscientious objection and acting with professional integrity,
and do the requirements of personal and professional integrity differ?
So I think it's a little easier, actually, to start with professional
integrity, and I'll start with citing the work of Dr. Pellegrino here in
which he highlights the notion in some of his seminal papers on this the act
of profession or the verb "to profess" as being critical in understanding
professional integrity.
And I'm going to argue that to profess is to promise, and it has two
elements that are very important. It's a public promise, and it's a
collective promise. So the medical profession - in my case, we all stand up
together when we graduate and we all say the oath and we all say it
publicly. So the fact that we all do it together and we become a part of a
medical collective via the saying of the oath and that we do it in public
and the public is supposed to hold us accountable are both important
elements of what it means to act with professional integrity.
There's a lot of different accounts as to exactly what we promise, what
is the content of the promise, but virtually every account that I know of in
one way or other says that we elevate the patients' interests in some way,
shape, or form above our own personal interests.
Now, the question that might be asked is, does one own interest include
one's personal integrity? Now, the first answer to that question is, well,
it can't possibly because my personal integrity is my deepest moral
possession, if you will. So how could I give that up in the name of
professional integrity?
But I would remind you that that may be - we could raise at least a prima
facie question about that because many of us believe - I certainly believe -
that one of the things that we promise when we make this collective, public
promise is - as my infectious disease friends tell me when the H5N1 virus
mutates and we have a flu pandemic of an avian flu variant that's
transmissible person to person - that I have made a promise as a physician
to potentially risk my life to serve the patient.
So it could be asked, are you saying that health
professionals made a promise that they're willing to risk their lives but
that they're not willing to risk their personal moral views? So at least
that question can be raised. It doesn't answer the question, but I think it
legitimizes raising the question.
So it could be asked, are you saying that health professionals made a
promise that they're willing to risk their lives but that they're not
willing to risk their personal moral views? So at least that question can be
raised. It doesn't answer the question, but I think it legitimizes raising
the question.
So now let's turn to personal integrity, and I'm going to use conscience
and personal integrity largely as synonymous terms. Now, a very popular
account of this is that conscience is an inner moral sense which is attuned
to an external source of moral truth, such as divine law. And this has been
very popular, and I believe if you did a public opinion poll it would get a
lot of assents, but my colleague, Martin Benjamin, I believe very
thoughtfully in the analysis of conscience that he did for the Encyclopedia
of Bioethics showed that there are serious concerns with this popular
account.
First of all, some of us, at least on occasion, experience conflicts of
conscience internally. Our conscience seems to be telling us two different
things at the same time. And this account of conscience could not possibly
account for that.
And then there's a question ultimately of whether this creates a
viciously circular argument. Is our conscience right because the external
source is true? Do we know the external source is true because our
conscience is always right? And what comes first? So there are some serious
conceptual problems with this particular view of conscience.
So another account, then, says, well, let's forget about the external
source of moral truth and let's say that conscience is an internal standard.
And I think that's an appealing account in one very important sense, that if
you've honestly and earnestly consulted your own conscience, I don't think
we can imagine an effective appeals process.
It's incoherent at a certain level to say even though your conscience
tells you that you must do X, I'm telling you that you really ought to do Y
instead. It's very important to see that that assumes a level of appeal
which I think the whole concept of conscience disagrees that that level of
appeal exists. But a strictly internal account may fail to capture important
developmental and social features of conscience. And I didn't have the
opportunity to be here this morning for Father Paris , but I believe that he
may have alluded a little bit to that idea.
So I'm going to play philosopher here for a minute and go on a little
tangent, because I think there's an interesting idea that we can bring back
into the idea of conscience from John Rawls ' Theory of Justice.
Now, John Rawls ' Theory of Justice says that one of the most important
primary goods is this thing called self-respect. And what does it mean to
respect yourself? It's very, very important if you're going to have a life
worth living that you respect yourself, says Rawls, and a critical element,
as he gives an account of this, is having one's plan of life approved of,
affirmed, by a special group of people.
And he doesn't give a name to this group, so the only thing I can come up
is this unpronounceable acronym of the Rawlsian Life Plan Review Group.
Well, who are these people? Okay, so these are people you respect. You get
self-respect because people you respect respect you back again. These are
people who you think have special insights into who you are uniquely and
what would be a rational life plan for you, and these are people whom you
freely choose to occupy this role.
So we can imagine your parents, if you agree with the basic values of
your parents; special mentors that you had when you were growing up; and
perhaps some close friends are candidates for this life plan review group.
So the idea is, if this group of people affirms what you're making of your
life and show that they respect you because this is what you're doing with
your life, you are then entitled to have self-respect, and this sense of
self-respect is a very important good.
So I want to then say, can we play with this a bit. And in order to play
with this, I want to go off into an area that some would call a narrative
approach to ethics, but I think when people are asked to give a narrative
account to justify a moral choice, one thing that crops up in discussion
commonly is this idea of keeping faith. And it is sometimes expressed as "my
grandmother would turn over in her grave if I did that" or something along
those lines.
And what I'm going to suggest is the people who we feel a moral need to
keep faith with when we give this kind of justification for why we did
something that seems very deeply rooted in our core identity as a moral
individual suggests that those same kind of people who would be on the life
plan review group in the account given by Rawls might be the candidates to
be the ones with whom we have to keep faith in order to be people with
integrity.
The speculation I want to now bring to fruition with this is that the
idea that keeping faith in this sense seems to resemble an act of promise
keeping. It's as if I promised my grandmother or my mother or my father or
my favorite teacher when I was in grade school that I would never behave
that way, and I need now today to keep my promise. And my motive today, to
be sure that I do this behavior, is the felt need to keep my promise to
these very important figures that had this formative role in making me the
person today that I am as a moral being.
Now, this is not a good reason from a philosophical point of view, but I
think sort of indirectly supporting this is that it gives some credence to
popular culture depictions of conscience. The Jiminy Cricket idea, the voice
in one's ear, the miniature person sitting on one's shoulder that I used to
see in the Saturday morning cartoon shows suggest the idea of this person or
this group of people to whom I have made prior in my life this important
promise and now they're holding me to live up to that promise.
So basically what I'm suggesting here, to try to pull these threads
together, is that conscience is what my internalized group of special moral
mentors or guides from my early moral development tell me that I ought to do
as if I have promised them to behave in that way, again emphasizing they're
certainly not here now. I don't pick up the phone to call them. They may, in
fact, not even be alive anymore.
Now, does this mean that conscience is nothing but an internalized set of
social norms from early child development? And Benjamin again says that
would be a totally flawed and insufficient account. You could never defend a
serious moral weight being placed on the dictates of conscience if it was
nothing other than "Well, that was the way I was raised." So if I was raised
in a terribly bigoted and prejudiced society and that somehow justifies my
being a bigoted and prejudiced person. Absolutely not.
So it's important, I think, then, to see what's going on here, that this
Rawlsian narrative account of conscience's promise is different from merely
invoking social norms. It presumes a conscious and reflective act of
choosing certain individuals to be part of one's life plan review group or
promise-to-mentor group. And so, for example, it's interesting when people
exclude their parents, when people say, "My father was a bigot, and he
brought me up to be a bigot, and I'm not going to be a bigot. So I will not
allow my father to play this role in mentoring me for my moral behavior as
an adult. I reject my father's candidacy for membership in this mentor
group, and I didn't promise my father that I would be like him, and I
won't," so that there's a reflective processing of this input. It's not a
blind acceptance of the social environment in which one was brought up.
So I'm suggesting . . . that personal integrity or
conscience represents a private promise to behave in certain ways to this
special group of people who I feel I owe this role in my life to who helped
guide me to become the person that I am. Professional integrity grounded in
the act of the profession represents a public collective promise to act in
certain ways . . .So we have two promises which could easily come into
conflict, and there we have the so-called conflicts of conscience in the
clinician.
So I'm suggesting in summary that personal integrity or conscience
represents a private promise to behave in certain ways to this special group
of people who I feel I owe this role in my life to who helped guide me to
become the person that I am. Professional integrity grounded in the act of
the profession represents a public collective promise to act in certain
ways, specifically to be faithful to the interests of the patients, and
therefore it would not be a surprise if the content of the two promises
conflicted with each other. So we have two promises which could easily come
into conflict, and there we have the so-called conflicts of conscience in
the clinician.
Now, how do you resolve this? Well, the first important thing that
follows from this account is, you do not resolve this by denying the moral
weight of either personal integrity or professionalism. Each is an important
way to a considerable extent to the good professional identity constituting.
Certainly my personal integrity is identity constituting. Who I have
selected to be my special moral mentors and I feel obliged to act as if I
promised them to keep faith with them - I would behave in those ways- that
is at the very core of my moral identify.
And one of the things it means to say that I'm a professional and that
medicine is not a mere occupation, for example, is that that becomes a part
of one's identify, and my moral commitment to my field, my service
commitment to my patient, is part of who I am. So both of these are to some
extent, at least, identity constituting promises. Neither can be taken
lightly. Neither can be simply dispensed with.
Now, the rational conversation idea, the counseling idea that Dr. Lyerly
alluded to, highlights something that is complicated about the idea of
conscience. It may be that there is no higher court of appeal than my own
conscience. That does not mean my conscience cannot be mistaken. Conscience
is corrigible. So how can conscience be mistaken? I think it's very
important that we list these ways.
First of all, as was already pointed out, you could have the incorrect
facts. You could not know how certain drugs work, at least in the minds of
certain investigators who have elucidated the mechanism. You could certainly
adhere to moral principles or rules at one time in your life so that at that
time in your life that rule is the highest moral court of appeal, but at a
later time in your life on reinvestigating those moral rules you could find
they were flawed and you could come to what you hope is a higher level of
understanding of morality such that you no longer adhere in the same way or
to the same extent to those moral principles that guided you.
And then I think there's an under-appreciated way the conscience can be
mistaken, and that's what I would call single-issue conscience like
single-issue voting. That is when you allow one dictate of conscience to
assume such prominence in your thinking that you ignore other dictates of
conscience. And I'll come back with some examples.
Now, an important distinction that I think guides us into how easy or how
hard it's going to be to resolve conflicts of conscience in practical health
care settings is - I'll offer a distinction between a mild and a strong
interpretation of the dictates of conscience. A mild interpretation of the
dictates of conscience essentially requires that one stand aside: "I should
not participate in this procedure or this treatment that I morally object
to."
A strong interpretation of the dictates of conscience requires acts that
start to amount or actually amount to interfering with the patient's access
to those services. So refusal to refer is a common one, and I have heard at
least anecdotally of one instance where not only did the pharmacist not fill
the prescription, but the pharmacist confiscated the prescription, would not
give it back to the patient, so the patient was prevented from going to
another pharmacy even if there was one just up the road where they could
have gotten the prescription.
So those are strong interpretations of what conscience requires of you.
And there is where I think that we start to see what I mean by the
single-issue conscience, because let us take for a minute the pharmacist who
basically stole the prescription from the patient. That pharmacist would
say, "Well, my conscience told me I had to do this," but did this pharmacist
promise his mother and his grandmother in those moral guides that he grew up
with that he would become a thief? Probably not.
So this pharmacist, I would argue, was allowing one moral commitment,
which is a part of his conscience, to cause him to forget that he had made
other moral commitments also in his conscience, that none of our
consciences, if we're like most people, are single-issue voters. And if we
want to follow the dictates of conscience, we are duty bound to buy the
whole package. We have to remember what other commitments of conscience we
may have and not allow one single one which is particularly in focus at one
particular moment in time to cause us to lose sight of the other dictates of
conscience.
And this is going to lead to cases like the one -
the court case that Dr. Lyerly mentioned, where we're going to have to say
in some cases that a professional with such stringent dictates of conscience
ought not choose that particular career, that they cannot at the same time
promise they're going to serve the interests of the patients if their
individual personal integrity requires them to say no to so many things that
could possibly be a part of the needs of the patient.
So the kind of balancing act I think we're struggling with here in many
cases is the more that the strong interpretation is favored over the mild
interpretation, the more difficult it's going to be to reconcile the
individual professional's objection with basic duties owed to the patient.
And this is going to lead to cases like the one - the court case that Dr.
Lyerly mentioned, where we're going to have to say in some cases that a
professional with such stringent dictates of conscience ought not choose
that particular career, that they cannot at the same time promise they're
going to serve the interests of the patients if their individual personal
integrity requires them to say no to so many things that could possibly be a
part of the needs of the patient.
An extreme case that I was made aware - and I'll talk a little bit more
about that hearing later - in the State of Michigan a state senator, who
also happened to be a physician, remembered when he was in residency at the
University of Michigan that one of the anesthesiology residents was a
Jehovah's Witness and would not give a blood transfusion to a patient who
was bleeding out in surgery. And eventually they had to fire this resident.
So you could argue that you could be a Jehovah's Witness, but you can't
be a Jehovah's Witness and be an anesthesiologist. You've got to choose at
some point if it's that important a commitment for you.
Now, fortunately most of the time it's nowhere near as bad as the case of
the Jehovah's Witness anesthesiologist, and the more that a mild
interpretation prevails, the easier it seems to relocate responsibility for
handling conflicts at the system's level where we can replace the
professional temporarily who has objections with one who is willing to
provide the services and that these conflicts can be anticipated and allowed
for as you look at the scheduling issues and the way that you staff and deal
with your personnel in your particular pharmacy or your hospital or your L&D
unit or wherever you may be the manager of.
Obviously this is going to have problems in particular instances. It's
particularly going to be a problem in a rural health setting where there may
not be that many alternatives available, where the other facility may be
many miles away. This may, in turn, argue for limits on where a professional
with stringent dictates of conscience may elect to work. Alternatively, it
may require a greater personal willingness to participate in arranging
referrals and other alternatives if the person with the strong dictates of
conscience does elect to work in a more rural setting where they are the
only source of care available.
Now, just to give some illustrations of where I think this could cause
some problems or where some objections could be raised is the hearing that
we had in the State of Michigan before I moved to Texas in 2006, where I was
asked to represent the Michigan State Medical Society at a hearing of the
state senate to hear a piece of legislation that had been proposed which was
designed to specifically protect the rights of conscience of the health
worker.
And we were objecting to it, as were the hospitals and just about every
health care facility, frankly, in the State of Michigan was objecting to
this law because it seemed totally out of balance. It was all about the
right of conscience of the health professional and there was absolutely
nothing in the law about service to the patient or the needs of the patient.
So we were very concerned that this was a one-sided piece of legislation.
And it struck us as we went to testify against this legislation that when
asked what was the need, where were the instances that, for example, a
professional had either been fired or had been forced to provide service
over their conscientious objections, they in fact could not name a single
instance where this happened that created a practical need for this new
legislation.
All they could do was hypothetically say, "Well, down the road there
might be new drugs derived from stem cell research, and that would offend
many people's consciences, so we need a law today to be sure that in the
future people didn't have to administer these drugs to which they might have
a conscientious objection."
And another example from this hearing was one of the defenders of the
legislation said it was very important to extend the right of conscientious
objection to the system and not just to the individual. So it's not just a
matter of personal integrity, but it extends to the system. "So, for
example," said this expert, "the owner of a large business who has a
conscientious objection to contraceptives should be able to say that his
firm's health insurance policy will not cover contraceptives," because that
would violate his own conscience. So in this case it's the firm, the
corporation, and not the individual that objects to the treatment.
And I would say that this systems-level refusement makes perfect sense in
some settings. So the idea of a network of religious hospitals, for example,
saying our religion requires that we do not provide this procedure in any of
our hospitals, to me that make perfect sense and I think that's very
legitimate.
I would argue that in the case of the owner of the firm that it's
mis-described as conscientious objection and it seems to me to be something
quite different. I would submit to you that it's abuse of power. It's using
one's financial power, in this case, to impose one's own philosophical or
religious views on others of differing views, which I think is different
from the exercise of one's conscience.
So I would offer some conclusions from this rather hasty set of thoughts.
In cases that are reasonably analogous to our case study - the pharmacist
with the prescription for the emergency contraceptive - I have tried to
suggest to you that the two-promises account explains how conflicts may
arise and why both promises deserve moral respect, the public collective
promise of the professionals made to the patients to put their interests
first, and my personal promise that I made to my special internalized group
of moral mentors as to how I would behave in order to be the kind of person
that I want to be as a moral being, and that fortunately a system's level
attempt to resolve conflicts appears practically workable in many or even
most settings.
Now, an implication that comes out of my distinction between the mild and
the strong interpretations is a message for leaders of religious faith
communities, I believe. And I'm a little on shaky ground talking here
because I'm certainly not a theologian and have no expertise in religion,
but I'll throw this out for whatever it may be worth.
It may be that your religious tradition allows one
interpretation only, that the strong interpretation is the only one
consistent with your faith tradition. If that's so, nothing more should be
said. That's the way it is. But in many faith traditions interpretation is
possible, and it may be that a strong interpretation is correct or it may be
that a milder interpretation is correct, and there could be discussion and
debate within the faith tradition over which account is correct.
It may be that your religious tradition allows one interpretation only,
that the strong interpretation is the only one consistent with your faith
tradition. If that's so, nothing more should be said. That's the way it is.
But in many faith traditions interpretation is possible, and it may be that
a strong interpretation is correct or it may be that a milder interpretation
is correct, and there could be discussion and debate within the faith
tradition over which account is correct.
If the leader of the faith community encourages the health professionals
who are members of that faith community to lean toward the milder
interpretation, it follows as a practical consequence that social conflict
will be minimized and that it will be easier for that group of providers,
that group of health professionals, to adhere to both those promises that
they made, both the promises to their own conscience, to their own inner
voice, and the promise to the larger community to serve the patient.
To the extent that the religious leaders insist on the strong
interpretation and discount the validity of the mild interpretation, one can
predict that social conflict will increase, and it will be harder and harder
to engineer social systems or health care systems in such a way as to
revolve those conflicts. And I believe that then becomes partly the
responsibility of the religious leader if there had been at least the
possibility that another interpretation might have had some validity.
So what I personally hope is that in the future we will see more examples
of conscientious objection dealt with by a local accommodation in the spirit
of mutual respect and fewer instances where the use of political or
financial power favors only one promise over the other equally important
promise.
Thank you very much. [. . .F. Curlin]
Notes
The
President's Council on Bioethics
was appointed by President George W. Bush and operated from 2001 to 2009.
Source: Archived transcript of the session.