The End of Medical Ethics Albert R. Jonsen, PhD s the end of the twentieth century draws nigh, it has become fashionable to proclaim the “end” of this, that, or whatever. Last year, intellectuals vigorously argued about the end of history, and a host of books and articles describe the end of modernity, of ideology and, of course, of the “cold war.” These endings may take us by surprise, for something we presumed to be an indelible feature of our existence is now declared no longer to exist. I am about to declare an end to medical ethics, which we assume to have been part of medicine since its dimmest beginnings. This may seem a shocking declaration for two reasons. First, venerable antiquity lends to medical ethics the aura of permanence, as it did to the French monarchy in 1782. Second, a renewed interest in medical ethics has only recently stimulated vigorous discussion and scholarship and teaching. Rather than coming to an end, medical ethics seems just to have come alive. Yet, despite venerable antiquity and vigorous interest, I insist that we are nearing the end of medical ethics. The renewed interest began some thirty years ago. Advances of medical technology began to manifest a shadow side: the ability to save and sustain lives formerly doomed to death appeared not only to be a ’miracle” but also to pose a paradox. Life saved, but of what quality, and at what cost? The phrase, “Who lives? who dies? who decides?”became the anthem of a renewal of medical ethics. Philosophers and theologians joined physicians and scientists in the task of working through these questions. A large literature began to appear, professors were appointed, courses were taught, and conferences were convened. Courts opined on these questions, and legislatures enacted statutes. This new medical ethics seems to flourish unto today. The new medical ethics consisted not only of new problems generated by technological advances. It had a new content, the analytic methods and concepts of philosophy. These had never before been so prominent in the discussion of ethical problems in medicine. The British philosopher John Locke was himself a physician, but despite two centuries in good standing as a philosopher, he was probably never quoted in a medical journal until a decade ago. This new content of philosophical analysis lends a new tone to medical ethics. It has undergone a mutation from what Chauncey Leake once called ‘an etiquette”to something much more like an ethic.’ This means that its positions are more rigorously justified and more clearly stated than in the past. In addition, its moral imperatives are more deeply rooted in ethical theory than in professional custom.
Dr. Jonsenis Professor of Ethics in Medicine at the University of Washington, Seattle, Washington.
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Despite the new problems and the new content, the new ethics was grafted onto a very old one. The Greek physician Hippocrates is usually cited as the first voice of that old ethic, His admonition, ‘be of benefrt and do no harm” and the phrase of the Oath often attributed (probably wrongly) to him,“I will use treatment for the benefit of the sick according to my ability and judgment and not to do them harm and injustice” were the anthems of the old medical ethics, chanted in various tones from ancient times through the formative ages of the medical profession in the 15th century and down to the contemporary era of modem scientific medicine. The new medical ethics does not repudiate the perennial obligation of benefiting the patient; it merely recognizes that when so many technical effects can be produced, it is often unclear which effects are beneficial. The new ethics attempts to provide some clarity to these unprecedented problems. My thesis is that this entire tradition, the old medical ethics and the new, is about to come to an end. The nature of scientific medicine and the conditions of its practice are such that the tenets long thought essential to medical ethics will no longer be necessary and will wither away. The ethical traditions, old and new, of western medicine will be as antiquated as the physiological theories and therapeutic practices endorsed by Hippocrates and his colleagues. The renewed interest of the last three decades, with its professors, its literature, and its conferences will be seen as nothing but a penultimate burst of energy in a dying tradition. Three recent articles in the New York Times entitled “Doctors in Distress” present the signs and symptoms of the end of medical ethics. The first paragraph of the first article tells the story: Over the past quarter-century, and especially in the last 10 years, doctors have seen their autonomy eroded, their future earning potential jeopardized, their prestige reduced, and their competence challenged by everyone from oversight boards to hostile, litigious patients.’ The articles developed these themes by a sad litany of complaints from physicians. They said they no longer recognized the medicine they had entered and long enjoyed. They could not care for patients to the best of their ability since their judgment was continually second-guessed. Their peace of mind was constantly troubled by the threat of malpractice. They were judged on their productivity rather than on their competence and their compassion. Many of them would counsel their children away from medicine and some now regret that they themselves entered medical school. Scarcely a single word of enthusiasm or hope appeared in these articles. It is impossible to say how representative were the words and feelings related to the authors of Doctors in
Distress. A few studies report similar results. One of these, examining the role of physicians as gatekeepers, interviewed 64 family physicians in different practice settings. The author concluded, "the overwhelming impression is of conflict, alienation, and apprehension on the part of doctors" and added, "the types and levels of conflict that they reported are broadly similar to those described in other ~tudies."~ Anyone who works in or around medicine has heard these complaints. Unquestionably, major changes have restructured the institutions of health care and the practice of medicine in recent years. Readers of this Journal find these changes chronicled in almost every issue. The acronymic shorthand of HMO, PPO, DRG, PRO, URC, etc. reveal them in forms of practice, financing, and clinical care. Even those physicians who have accepted all or most changes with equanimity are forced to admit that medicine is no longer what it was until a few years ago. Younger physicians are often unhappy with the medicine they know, even though they cannot compare it to a better past. The structural changes in medicine and its practice, whether one likes them or not, render medical ethics superfluous. One characteristic of medicine (and of other professions as well) makes ethics necessary: fallible authority. When persons possess the power to act in ways that can significantly affect others, they have authority. All authority, being in the hands of humans who may be malevolent, ignorant, or careless, is fallible. The ethical side of fallible authority is personal responsibility. In Western culture, the concept of ethics is inextricably linked to the concept of personal responsibility. The view that humans are free, accountable for their actions, and liable to fail makes up the concept of responsibility. Ethics arises from the recognition that this fallible authority, although rooted in freedom, must be shaped by moral law, obligations, and duties. Various ethical systems view the origin and extent of those obligations differently; yet, with the exception of absolute moral skepticism, all ethical systems reflect a structured responsibility. This is true of ethics in general and of professional ethics in particular. To the extent that persons are deprived of authority, the application of ethical concepts to their lives and behaviors withers. Indeed, we are vividly aware of the efforts of totalitarian systems to extinguish responsibility in their subjects. They attempt to shrink the nuanced structure of responsibility into an attenuated reflex obedience. The thesis of this essay is that, to the extent that the structural changes in the institutions of health care, taken cumulatively, deprive physicians of the authority appropriate to their work, a distinctive ethics of medicine becomes less and less necessary. The thick volume in which the ethical admonitions and practices of 25 centuries has been collected will become a rare book in a library of medical history. It will have no relevance to modern practice. We count those 25 centuries from the days of Hippocrates, first voice in the ethical tradition of medicine. However, my radical thesis about the end of medical ethics is more clearly illustrated by selecting a later voice in the tradition. The year 1113 AD deserves an
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important place in the history of western medical ethics. In that year, in the City of Jerusalem, the Knights of the Hospital of St. John of Jerusalem were f ~ u n d e d . ~ The Knights Hospitallers, as they were called, were a Christian religious congregation devoted to the care of pilgrims, especially sick pilgrims, travelling between Europe and the Holy Land. In the first written rule of those monastic physicians and nurses appeared the phrase, "our lords, the sick." In the vows taken by the entrants to the Order, each one promised to care for "our lords, the sick." In the literature of the Order, which became in time as much a military as a medical fraternity, those words appear again and again. The phrase represented the ethos of the Order. Formed in the era of feudalism, its members recruited from the nobility, the Order saw its charge as the care of the weak, the sick and the poor. The Knights vowed that they would treat those in their care as if they, the weakest and sickest and poorest, were lords and they, the providers of care, their vassals. Our lords, the sick were to be treated with reverence and courtesy, given preference in food, lodging, and comfort. The Knights were to defend their charges even at risk to their own lives. This was, to the best of my knowledge, the earliest expression of duty to the patient even at cost to the caretaker. This ethos commanded a dedication to the patient that asked much from the provider. This assumes that the provider has a monopoly on strength and must utilize that strength not for personal benefit but for those being served. This was the religious version of noblesse oblige, imposing a duty of voluntary service on those who bore authority. Voluntary service enters western medicine as a duty and an ideal of the responsible physician. Even after the Knights faded from history and the religious ethos that supported their dedication was no longer culturally dominant, the ethic of service continued to inspire practitioners. It continued to be taken seriously long after the work of caring for the sick passed from vowed religious to secular professionals. The first paragraph of the first book entitled Medical Ethics, written by English physician Thomas Percival in 1803, bears witness in antiquated phrases to that ethos: Hospital physicians and surgeons should minister to the sick with due impression of the importance of their office, reflecting that the ease, the health, and the lives of those committed to their charge depend on their skill, attention, and fidelity. They should study, also, in their deportment, so to unite tenderness with steadiness, and condescension with authority, as to inspire the minds of their patients with gratitude, respect, and ~onfidence.~ This paragraph was quoted as the opening admonition of the Principles of Medical Ethics of the American Medical Association from 1847 until the third revision in 1912. While some might scorn these words as empty rhetoric for advertising purposes, and others comment on how they were honored more in the breach than in the observance, the ethic of service long stood as an
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ideal of the good physician and as the standard of excellent practice. Many contemporary physicians who know nothing of the Knights Hospitallers, or of Thomas Percival, subscribe to that ethic, and most patients expect their doctors to do so. It is shameful when one reads that a recent Gallup poll reports that 26% of respondents said that they respected doctors less than they did 10 years ago and that the most frequent reason given for the loss of respect was that "doctors were in it for the money."6 It is significant to recall that the Knights were recruited from the families of feudal lords and that Percival's colleagues were prosperous British gentlemen. They were required by this ethic to "unite condescension with authority." Ethics makes little sense until it aims to restrain the excesses of power and authority. Whether one follows the philosopher Nietzche who claimed that ethics was an invention of the weak to control the powerful by guilt, or Plato who proposed that ethics consists of ideals that limit the exercise of power and pleasure, ethics bears most stringently on those who have the ability to dominate and exploit. The structured responsibility that underlies the concept of ethics also implies power. Ethics is, then, the moral limitation placed on power. Thus, the origins of medical ethics lie in the realization that the power of knowledge and skill brought to bear on the vulnerability of the sick can be used to exploit and dominate. The ethics of service nourished in the history of western medicine goes beyond prohibiting the abuse of power and demands that power be dedicated to the strengthening of the weak. It instills not only responsibility for one's own action, but takes responsibility for others who are in need. At the same time, ethics arises from the recognition that those who have and assume responsibility are fallible. They can make mistakes, be self-serving and sinful. The ideals and rules of ethics speak to that fallibility in imperative tones. Over the centuries, the literature of medical morality exhorted physicians to integrity of character, competence, and discretion in practice and compassion in feeling. These exhortations aimed to strengthen physicians against their inherent fallibility and to accuse them when they failed. The new medical ethics discovered two lacunae in the old ethics of service. First, it noticed that the old ethics was paternalistic, that is, its use of authority was, to recall Percival's word, condescending. Physicians were commanded to "act for the benefit of the patient," but it was presumed that the physician decided what the benefit of the patient was to be. One of the most prominent of the new medical ethicists, Robert Veatch, noted that the Hippocratic admonition to act for the benefit of the patient was followed by the phrase, "according to my (the physician's) ability and judgment." Where, he asked, was the "ability and judgment" of the patient?' Patients, while titled "our lords, the sick," remained, as far as decision and choice were concerned, in servitude. The concept of patient autonomy, congenial in the political and cultural climate of the 1970's, was introduced into the old ethic. A philosophical foundation for it was found in the influential
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thought of Immanuel Kant and John Stuart Mill. Having autonomy as a central and, for some, even the sole principle of the new ethics was revolutionary. It granted distinct rights to patients, as the American and French political revolutions did to citizens. Authority at least equal to that of the physician now resided in the patient. Patient preferences were to be expressed in an "informed consent," and physicians were to accept them. Our lords, the sick now truly ruled, at least in theory. The new ethics discovered a second flaw in the old ethics. While evincing a concern about the sick poor and requiring charitable service, the old ethics had little to say about the structure of the institutions of service. Care of the poor flowed from the physician's personal charity and was not enforced by any sanction other than his or her conscience. The new medical ethic insisted that the system of care must be seen as unjust. The manner of allocating services and financing them was radically unfair. The charitable services of the old ethics were, at best, a superficial and inadequate remedy. The principle of justice, hardly mentioned in the old ethics, became a central tenet of the new ethics of medicine. Philosophical foundations were sought in the treatises on social, political and economic justice such as the seminal work of Harvard philosopher John Rawls. The principles of autonomy and of justice were new, necessary, and revolutionary additions to the old ethics. As new principles, they imposed unfamiliar responsibilities on physicians, requiring changes of values and habits. As necessary ones, they assumed an importance that forced into being structural changes in practice and institutions. For most persons interested in medical ethics, these principles filled up lacunae in the old ethics. But, as is so often true of new ideas, they had revolutionary implications. As they worked themselves out into public consciousness and into policy, they began to overturn what had been the long accepted basis of medical ethics, the responsibility of physicians for their patients. Physicians learned that they should not be condescending or paternalistic but must respect the autonomy of their patients. At the same time, they found themselves facing patients who chose less than adequate treatment, demanded unproved treatment, and some patients whose ability to choose was seriously undermined by social disadvantages and psychological disabilities. The proper introduction of the requirement of informed consent not only empowered the patient, it seemed to attenuate the responsibility of the physician. Yet, paradoxically, the bad outcomes of patients' choices did not, it seemed, excuse physicians from liability. Similarly, the perception of the health care system as unjust strengthened the moral imperative for universal access. The call for universal access had preceded the new medical ethics, but it was now reinforced by the awareness that this was not simply an economic issue but a moral one as well. At the same time, the principle of universal access was coupled with the apparently inconsistent, but equally moral principle of rationing of care. If adequate care was to be available
to all, some forms of care had to be limited and even denied to some. To achieve this, the authority for allocation of services had to be moved from the physician making clinical decisions to the administrator making policy decisions. As demand for access rose, the demand for containment of costs did also. Those demands took the form of increasingly detailed oversight and review of physician's decisions. The third party, who appeared in the 1930's as an insurance payor, gradually grew into fourth, fifth and ad infinitum parties, all claiming their stake in the care of the patient. All of this was not, of course, the result of the new medical ethics. The new ethics was in large part the result of academic speculation, but it flowed readily into social, cultural, political, and economic channels ready to receive it and then partially shaped by its flow. Similarly, many of the policy and practical limitations on physicians' responsibility came, as had been noted by many reasonable critics of medicine, from public reaction to the medical profession's own failure to observe its ancient ethic of service. Professor Ewe Reinhardt commented in the Doctors in Distress article, 'when Medicare was formulated, doctors refused to accept limits on the amount they could charge patients, so they ended up with limits on the clinical procedures for which they would be paid."' Also, the new ideas were often only ideas; practices often remained much as they had been. But a new ethos was abroad in the land, one to which medical practices and the law gradually responded. All of these changes appear to be having a radical and revolutionary effect, namely, the dismantling, in theory and in fact, of the responsibility of physicians. The presupposition of the old ethics was no longer valid; namely, that physicians must use their power morally, and that dedication to the patient's welfare was the standard for its moral use. Rather, the physician does not have power except as delegated by the patient, by the institutions, and by the government. The metaphor, our lords, the sick, now becomes literally true, but in language suited to market economy democracy: consumer demand dictates provider behavior. The consumers, of course, were not the sick as such, but those who paid for the care of the sick, sometimes the patient, often the insurers, the employers, the government, and the taxpayers. This is a radical transformation. It is, in effect, the end of the old order and its ethics of voluntary service. Where there is no authority, there is no need for an ethics. Fallibility is defined only as technical error, not as moral weakness. Only rninimal performance is required. Standards are set, not by personal and professional ideals but by institutional guidelinesand policies. The ethics, if any remain, are the ethics of bureaucrats: meticulousness, adherence to protocol, abhorrence of exceptions to rule, and myopic vision. Mark Siegler once expressed the concern that clinical decisions would be made by administrators concerned only with "bureaucratic parsimony."' This is beginning to happen, but it will go further until the physicians themselves assume the behavior and ethics of bureaucrats.
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1do not wish my thesis to be misread as a reactionary advocacy for a return to untrammeled paternalism and a disregard for social justice in health care. I believe that the contemporary affirmation of patient autonomy and of social justice is a necessary addition to the canon of medical ethics. I do not believe that physicians have some mystic, quasi-divine authority merely because they know medical science and that the revolution has unjustly deprived them of that divine right. Rather I propose that medical science and medical skill, together with their public acknowledgment by diploma, certification, and licensure, constitute the grounds of a special authority. I claim that professional authority is integral to the responsibility that physicians must assume and to which they must be held. This professional authority is not a political authority, nor a familial authority that in any way ovemdes the rights of individual. It is rather what was once called 'spiritual authority," that is, an enhanced capacity to offer to others something of great value that cannot be obtained by commercial exchange alone. In our culture, clergy and teachers have long been accorded such spiritual authority. They brought to their congregations and their students the values of faith and of understanding. From ancient times, debates raged over the issue of appropriate compensation for the work of these spiritual authorities. This was, in part, because what they offered was not an easily priceable and comparable product and because, in part, while they could offer their value, it could be realized only by the acceptance and active response of the recipients. The spiritual value was, in essence, an understanding about how to direct one's own life. This is equally true of the authority of the physician. He or she offers the value of understanding how to restore health or to survive illness. Medicine has always had its techniques and products, but the physician was more than a performer and a dispenser; he or she was a teacher and advisor. Thus, the spiritual authority consists in having the source of that understanding and being willing to offer it. Just as the clergy need a sphere of freedom in which to preach-we call it freedom of religion-and the educator requires a sphere for free exchange of ideas-academic freedom-the physician must have a clinical freedom within which advice can mature and communication can be fostered. Spiritual authority does not establish a ruler-subject relationship, but rather a sphere for responsible collaboration, into which each party brings the best of which he or she is capable. It must be recalled that the relation between vassal and lord in medieval times was not quite the absolute power of ruler over subject that came about later; it was a collaboration between individuals who, though unequal in power, were in need of each other. A punctilious ethic of duties and responsibilitiesgoverned both parties. Thus, our lords, the sick imposed duties upon the Knights Hospitallers and assumed certain responsibilities, to the extent possible, toward their caretakers (chief of which was the duty to pray for them!). So, any medical ethic requires the exercise of authority, the freedom to fulfill responsibilities, and
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the willingness to undertake service. To the extent that medical ethics is a hyperbole. Doctors are not entirely social conditions inhibit these, medical ethics ceases to stripped of authority; bureaucracy does not entirely exist. stifle doctor's discretion. However, as these trends and The tradition of medical ethics, old and new, might tendencies increase and become installed in the instibe seen as the effort to create the institutional, social, tutions of health care, the ethic of voluntary service and economic conditions for that responsible collabo- and the spiritual authority from which it springs will ration. In so doing, medical ethics widens its scope to be slowly extinguished. encompass policy, but with a view to the protection of REFERENCES the sphere for responsible collaboration between phy1. Leake, CD. Perdval's Medical Ethics. Huntington, New York Robert E. sicians, patients, and institutions. Publishing Co, 1975. All proclamations of "the end" are likely to be hy- 2. Krieger Doctors in Distress, The New York Times, February 18, 19, 20, 1990. perbole, stated in exaggerated and lurid terms. They 3. Taylor TR. Pity the poor gatekeeper: A transatlantic perspective on cost containment in clinical practice. Br Med J 1989;299:1323-1325. are so stated in order to make an impression rather 4. Jonsen AR. The New Medicine and the Old Ethics. Cambridge, MA: than to assert the plain facts. Indeed, it is often because Harvard Univ. Press, 1990. plain facts are lacking, and trends and tendencies are 5. Leake CD. Percival's Medical Ethics. Huntington, New York Robert E. Publishing Co; 1975. troubling, that such declarations are made. The last 6. Krieger Doctors in Distress, New York Times, Feb. 20, 1990, p. 1. book of the Christian Bible, the Apocalypse, was such 7. Veatch RM. A Theory of Medical Ethics. New York Basic Books; 1981. a declaration about the end of the world. It made an 8. Doctors in Distress, New York Times, February 19, 1990, p. 9. Siegler M. The progression of medicine: from physician paternalism to impression that has lasted 20 centuries, but what it 9. patient autonomy to bureaucratic parsimony. N Engl J Med 1985;145: predicted has not happened yet. Similarly, the end of 713-715.