Wednesday, May 27, 2009

Best interests

Reader Bob Hunt, commenting on Abortion and execution clarifies his position regarding a physician's interaction with a patient:
You defined the matter in terms of the patient's best interest "in the patient's own terms," not the physician's. That's a big wrench to throw into the equation. ... Obviously, a physician would judge a treatment as contrary to his or her conscience because he or she believes that it would not be in the patient's best interest, even if that means disagreeing with the patient on what is in the patient's best interest.
Mr. Hunt's position brings up a critical question for all utilitarian ethical accounts, including subjective accounts: on what basis do we determine any individual's best interests in a fundamental way? Determining an individual's best interests is an issue for all ethical situations, not just specifically medical situations, but an examination of medical situations can, I think, provide important insights.

(Whether a fetus has its own "best interests," interests that a physician is obliged to consider, is an interesting and profound question (albeit a question with one good answer), but it is a completely different question than the issue under discussion in this post. We are, per Mr. Hunt's explicitly stated position, discussing the methodology a physician uses to determine the patient's best interests, not which patients the physician must determine the best interests of.)

On an objectivist utilitarian account, we can, at least in principle, determine an individual's best interests without taking into account her specific subjective mental characteristics, indeed we can determine best interests without taking into account any person's or group of person's subjective accounts. I'm aware of no serious objectivist account that takes into account any external non-mental contingencies (e.g. the phase of the moon or the price of tea in China); we may confidently conclude that an objectivist account of "best interests" is therefore a universal account: all people in the same objective, physical circumstances would therefore have the same best interests.

On a subjectivist account, an individual's best interests does substantively depends on her specific subjective mental states, or the mental states of some person or group of persons. In other words, the truth of any statement of best interests is, on a subjectivist account, relative to the subjective state of some person or persons. Since we cannot directly observe anyone's mental states, we must somehow infer those states.

Ordinarily, we infer a person's mental states by asking her or listening to her speak. If someone says, "I want a hamburger," we infer that she presently has the mental state of "wanting a hamburger." Such an inference is the simplest explanation to account for the facts, in this case the fact of the utterance.

Sometimes determining all the mental states relevant to a particular circumstance is non-trivial. People sometimes have conflicting desires and preferences: a person might desire a tasty hamburger, but not desire the consequences of the fat and cholesterol. Most desires must be fulfilled through the objective, material world: if (all things considered) a person wants to eat a hamburger, there are definite, bounded ways she must interact with the material world to actually eat a hamburger. People sometimes have false beliefs about reality; they might believe that if they want a hamburger, the best way to satisfy that desire is to go to Taco Bell.

A subjectivist account of best interests, then, entails that we ask the individual to speak, make the best scientific inference as to the corresponding mental states, and determine the best interests that correspond to those mental states.

In medicine specifically, it's clear that there is a strong subjectivist component to account for the best outcome, and an strong objectivist account for the best treatment to achieve that outcome. For example, if some treatment is especially risky or entails significant side effects, it is the patient's choice whether to face those risks or endure the side effects, or leave the underlying condition untreated. Affording this choice is determining the patient's best interests as corresponding to her subjective mental states. Indeed even if a physician believes the patient has an exaggerated subjective evaluation of undesirability of the risk or the side effects, the physician cannot simply override the patient's subjective evaluation; she must persuade the patient to accept the risk: she must attempt change the patient's subjective state and thereby change the patient's subjectively defined best interests.

On the other hand, if a patient desires a particular outcome (e.g. having her cancer cured), it is a matter of objective truth that there is a well-defined bounded set of actions scientifically known to achieve that outcome, and a well-defined bounded set of actions scientifically known to not achieve that outcome. A patient's subjective desires regarding treatment are indeed irrelevant precisely because efficacy and risk are matters of objective truth.

A pregnant woman comes to a physician seeking an abortion. It's uncontroversial on any account that the physician must, of course, ensure that the woman really does want to be not pregnant: He* must determine that not being pregnant really is in the patient's subjectively defined best interests. Once he has determined that she really does want to be not pregnant, it is a matter of uncontroversial scientific truth that there is a specific set of procedures one of which must be performed to achieve that end, that are known to achieve that end, and have known risks and side-effects comparable to other routinely condoned and performed medical procedures.

*I'll use the male pronoun only to easily disambiguate the physician from the patient; the latter being in this context always female.

What, however, are we to make of a physician whose domain of practice includes abortion, but seeks an exemption from ever performing that procedure? We must ask: on what basis does he seek the exemption? What are the overall effects of privileging the principle of allowing individual physicians to make medical decisions on that basis?

The physician must be referencing the ends (not being pregnant), since the relevant characteristics of the means (the various procedures for performing an abortion) are matters of uncontroversial, settled scientific truth. The physician therefore must have either an objective or subjective basis for objecting to the ends.

If a physician has an objectivist objection to the ends, he is saying in effect it is objectively true that it is never in a pregnant woman's best interests to not be pregnant. But if this is his position, basing this position on conscience is inept: Matters of objective truth — at least in medicine — must be settled by scientific inquiry, not individual opinion. Furthermore an objectivist position implies a universal position: any other physician who disagrees with him must be mistaken, since there is by definition exactly right answer to yes-or-no questions about objective truth. If this were truly his belief, then he has a moral obligation not just to personally abstain, but to do everything in his power to correct the mistake of his colleagues. Seeking only a personal exemption should be seen as nothing but moral cowardice.

Lacking an objectivist objection, the physician therefore must have a subjectivist objection. There are only three general subjectivist bases to object: the patient's own subjective state, the physicians own subjective state, or statistical, collective properties of the subjective states of the members of the community, culture, society or state.

We can eliminate the latter: the Supreme Court in Roe v. Wade determined that — all things considered — the state (and therefore the community, culture and society) does not have a collective opinion relevant to the desirability of having an abortion in the first trimester; abortion may neither be compelled nor prohibited on this basis.

An objection based on the patient's subjective state poses the same problem. The process of inferring an individual's subjective state is a scientific process. A physician must state that we never infer a woman's relevant subjective state to be those that correspond to the best interests of being not pregnant. To make this statement, however, the physician must propose and defend a definite scientific, evidentiary methodology to support such a statement; an appeal to conscience is not a scientific methodology. Alternatively, a physician could propose that there are no subjective states at all that correspond to the best interests of being not pregnant. Again, he must put forth some sort of logical or philosophical argument for such a determination; personal conscience is no more a philosophical argument than it is a scientific methodology.

(The physician could also assert that every pregnant woman who desires to be not pregnant is ipso facto insane, in the same sense that we determine that everyone who wants to die (and who is not terminally ill) is insane. I don't think anyone serious advocates this position, so I will waste no more ink rebutting it.)

There is simply no basis for relying on a physician's "expert judgment" in determining a patient's subjective states in a general, when the actual determination is substantively different from the ordinary method that most everyone is competent in employing: querying a person and taking their answers (more or less) at face value. If we use the ordinary methodology for determining subjective states and determining the corresponding best interests, is is uncontroversially the case that millions of pregnant women's subjective states and the corresponding best interests are to be not pregnant. Not only must a physician offer a better reason than "conscience" to make a different determination, but also there are no better reasons a physician can rationally offer.

So we're left with the physician's own subjective state. But if the previous constructions are merely unreasonable, the idea that the best interests of the patient are dependent on and relative to the subjective state of the physician is so wildly counter-intuitive as to verge on the ridiculous.

When the scientific truth of the efficacy or safety of some procedure is equivocal, ambiguous or not well-established, I would certainly trust a physician's more-or-less subjective judgment on the desirability of some specific procedure to achieve the typically desired end of good health. If one physician considers an experimental procedure to be worth trying, but another considers it too risky relative to its efficacy, and the current state of scientific knowledge is objectively ambiguous, there's no objection to permitting one physician to perform the procedure and another to refuse it.

There is no basis, however, other than insufferable arrogance or blatant irrationality on which a physician could determine, when a patient is in possession of all relevant scientific knowledge and is demonstrably sane, that the patient is incompetent to determine and articulate her own fundamental best interests. Such a physician should not only be drummed out of the medical profession, but earns our contempt as a human being.

10 comments:

  1. Please keep in mind that the issue under discussion concerns only the methodology a physician may use to determine the best interests of a woman seeking an abortion, which overwhelmingly occurs during the first trimester of pregnancy. There are other interesting questions about abortion, including but not limited to whether a fetus also has best interests a physician must consider and whether the Supreme Court should be relied upon to determine the relevant collective opinion regarding (first trimester) abortion. These question are, however, not under discussion in this post.

    If you want to discuss other questions you may: post the discussion on your own blog and link to it here or send me an email with your position: If it meets my editorial standards, I'll publish it as a post. Please include specific permission for me to post your email; absent explicit permission, I treat all email as private. I typically do not get into involved philosophical or political discussions by email: if I'm going to take the time and trouble to write something, I want to use it on the blog.

    ReplyDelete
  2. Dear Mr. Bum,

    I know you said not to post off-topic items here but I cannot find your e-mail address or I would have respected your wishes in this matter. Please forgive me this transgression.

    I didn't see it in the postings (I may have missed it) but wanted to point out the best interests of the fetus are in some sense make believe. No one knows what the fetus desires. We can guess, we can speculate, etc. but we cannot know. It seems to me what we guess about the best interests of the fetus only reflect our "best interests" or ideology. It's a bit like when people say things like, "Jesus wouldn't want you to do that" or "the Founding Fathers would be rolling over in their graves". Fact is, know one knows what those guys would believe, or say, or do in our modern times.

    Also when people say things like "if we could ask the fetus what it wants, it would want to live", it makes me think we didn't consult the fetus about it's creation; I'm not sure we should consult it in it's demise. Fact is, we make these life/death decisions all the time. Life is created and it expires. Conception is a death sentence.

    Best wishes,
    -AA

    ReplyDelete
  3. Well said. That was thoughtful, articulate, and quite rational. I realised the other day I only ever seem to try to comment here when I have nitpicking to do, so I wanted to also mention that I find the vast majority of your posts quite thought-provoking and well done. This, I think, is one of your recent best.

    ReplyDelete
  4. AA: Sorry. I just now included my email address in my profile.

    [T]he best interests of the fetus are in some sense make believe. -

    Indeed, and not just in some sense. A fetus (in the first trimester) does not have anything even remotely resembling functioning nervous system and thus cannot have any interests of its own whatsoever.

    Further development of this line of thought will have to await another post.

    ReplyDelete
  5. Mozglubov: Thank you! I aim to please.

    ReplyDelete
  6. Bob Hunt, RN5/31/09, 6:10 AM

    Mr. Hamelin,

    There are a few comments I will make in response:

    You ask, "What ... are we to make of a physician whose domain of practice includes abortion, but seeks an exemption from ever performing that procedure?"

    A physician whose domain of practice includes abortion is an abortionist. Why would an abortionist seek an exemption from performing abortions? If you're thinking of obstetricians, there are more than 40,000 OBs in the U. S. There are only around 2,000 abortionists. Clearly the great majority of OBs don't consider abortion as within their domain of practice. Why should you?

    You write, "A physician [who seeks an exemption from performing an abortion] must be referencing the ends (not being pregnant), since the relevant characteristics of the means (the various means of performing an abortion) are matters of uncontroversial, settled scientific truth."

    The relevant characteristics of the means of not being pregnant are hardly uncontroversial. One of the means, after all, of attaining the end of being not pregnant, a means you fail to consider, is to carry the child to term. So, the end of not being pregnant does not necessarily require the means of direct abortion. When a woman chooses to attain the end of being not pregnant by the means of direct abortion, that is the heart of the controversy for doctors who seek an exemption. Such an OB, after all, wouldn't seek an exemption from assisting the woman to carry the child to term.

    You write, "An objectivist position implies a universal position, any other physician who disagrees with him must be mistaken..." Except for your insistence that it is only the end, and not the means to the end, to which the physician must be objecting, I agree with this statment down to the end of the paragraph.

    Regarding the objection of the woman's subjective state:

    The physician need not assert that "every pregnant woman who desires to be not pregnant is ipso facto insane..." My goodness, I suspect that would include nearly every pregnant woman in her last few weeks of pregnancy! The physician need only assert that the pregnant woman who desires to be not pregnant by means of direct abortion either lacks "possession of all relevant scientific knowledge" (ie: the humanity of the one in her womb), is a victim of the culture of death that has clouded and/or misrepresented the status of the one in her womb and her relationship to that one, or, being fully aware of the above and still wanting to kill her child, is mentally or morally impaired, if only temporarily (this might include everything from being under the unjust pressure of others, being compelled to the act by oppressive circumstances of any number of varieties or, frankly, being the kind of morally bankrupt person who would kill by infanticide as easily as by abortion). In the case of the first two, it is certainly the physician's responsibility to educate the woman. In the last case, it may be a matter of doing what the physician can to rescue the woman from an oppressive situation. Nevertheless, it would certainly not be his responsibility to assist her in killing one whom she knows and understands to be her child.

    Gotta go!

    ReplyDelete
  7. A physician whose domain of practice includes abortion is an abortionist. Why would an abortionist seek an exemption from performing abortions?The specific terminology is irrelevant. We are, presumably, interested in a fundamental ethical point, i.e. personal exceptions from otherwise applicable socially-constructed standards. It's entirely uncontroversial (or controversial in an entirely different sense) to afford the individual liberty to choose a field and domain of practice that does not offend a person's conscience.

    If you're thinking of obstetricians, there are more than 40,000 OBs in the U. S. There are only around 2,000 abortionists.

    When you mention facts (unless those facts are uncontroversially matters of common knowledge) it's helpful to provide a citation to provide substantiation, meaning, context, and an understanding of inherent bias to those facts.

    For example, if "abortionist" is a legitimate medical specialty, you should be able to provide a reference to a medical authority, such as the AMA, establishing the existence of that specialty.

    The relevant characteristics of the means of not being pregnant are hardly uncontroversial. One of the means, after all, of attaining the end of being not pregnant, a means you fail to consider, is to carry the child to term. So, the end of not being pregnant does not necessarily require the means of direct abortion.

    I will clarify: the relevant characteristics i.e. the efficacy and risk — of all the means of not being pregnant, including carrying the child to term are well known and uncontroversial. The generally accepted medical criteria picking out the best means to some desired end include speed, side effects, risk of mortality, and best general health; by any of these objective measures, abortion is the medically best way to achieve the end of not being pregnant.

    Except for your insistence that it is only the end, and not the means to the end, to which the physician must be objecting...

    Again to clarify: I mean the physician cannot rationally or scientifically have a dissenting opinion regarding the efficacy and risks of any of the means.

    The physician need not assert that "every pregnant woman who desires to be not pregnant is ipso facto insane..." -

    That's one of the alternatives; a good philosopher must consider all the alternatives.

    (continued)

    ReplyDelete
  8. My goodness, I suspect that would include nearly every pregnant woman in her last few weeks of pregnancy!

    You ought to be well-enough educated to know that late term pregnancy does not entail any of the symptoms or characteristics of actual medical insanity.

    I do not permit misogyny in comments here. I will let this instance slide with a warning, but another instance will result in a ban, regardless of the other characteristics of our discussion.

    The physician need only assert that the pregnant woman who desires to be not pregnant by means of direct abortion either lacks "possession of all relevant scientific knowledge" (ie: the humanity of the one in her womb) -

    The physical and genetic characteristics of fetuses is a matter of common knowledge, and the specifically medical knowledge about efficacy and risk is entirely favorable to abortion. For a categorical exception, a physician must irrationally conclude a stunning degree of ignorance in the general population.

    The moral status of a fetus is not a matter of objective, scientific knowledge, unless you have a better argument than I've encountered in a lifetime of study on the issue.

    [A woman might be] a victim of the culture of death that has clouded and/or misrepresented the status of the one in her womb and her relationship to that one, or, being fully aware of the above and still wanting to kill her child, is mentally or morally impaired, if only temporarily (this might include everything from being under the unjust pressure of others, being compelled to the act by oppressive circumstances of any number of varieties or, frankly, being the kind of morally bankrupt person who would kill by infanticide as easily as by abortion). -

    Mr. Hunt, you are assuming what you set out to prove: these are moral, not scientific objections. If you want to argue the moral status of the fetus, that's a completely different issue than the one we're presently discussing.

    You appear unable to stay focused on a particular topic, in this case the justification for making exceptions to socially-constructed ethical standards on the basis of individual conscience.

    My blog is not a platform for you to propagandize your moral beliefs -- beliefs about which I have until now kept my abhorrence in check. I will now subject your comments to moderation; any comment with content unrelated to the topic under discussion will be rejected without notification or explanation.

    ReplyDelete
  9. If, hypothetically speaking, you were to admit defeat on the current topic, admit that you were mistaken about the justification of individual exceptions to socially-constructed rules, or that physicians are not competent to judge the best interests of the ordinarily mentally competent patient, we could consider that topic closed and move on to another topic, such as the idea that abortion is categorically immoral.

    ReplyDelete
  10. Bob Hunt, RN5/31/09, 6:25 PM

    Mr. Hamelin,

    My comment, "My goodness, I suspect that would include every pregnant woman in her last few weeks of pregnancy" was quite obviously a reference to their desire to not be pregnant (ie: looking forward to the day when the baby is born, not only because of the joy it would bring, but because of the relief it would bring to her body), not an accusation that every woman in the last few weeks of her pregnancy is insane. I did say that the physician need not assert their insanity.

    I know we don't know each other well, but I don't take lightly accusations of mysogeny, and it is my opinion that what I wrote was clear enough that to take it as a mysogenist statement was a choice on your part.

    Look, I've said on more than one occasion that I am not a philosopher. When I write, I write in the ordinary language people use when they are talking at the water cooler, or at the grocery store, etc... Neither do I have the time to put in to make sure every possible nuance is well accounted for. I don't have the time and space to account for every conceivable mis-application of my thoughts (ie: the actions of the criminally insane v. the legitimate reservations of conscience possessed by healthy people - though I did address this one, you ignored it).

    You call me a mysogenist and threaten to ban me if I'm bad again. That's fine. It's your blog. I'll ban myself.

    The conversation is moot, anyway. Conscience rights are here to stay. Health care workers will not tolerate their abrogation, and there are more of us than there are of you.

    ReplyDelete

Please pick a handle or moniker for your comment. It's much easier to address someone by a name or pseudonym than simply "hey you". I have the option of requiring a "hard" identity, but I don't want to turn that on... yet.

With few exceptions, I will not respond or reply to anonymous comments, and I may delete them. I keep a copy of all comments; if you want the text of your comment to repost with something vaguely resembling an identity, email me.

No spam, pr0n, commercial advertising, insanity, lies, repetition or off-topic comments. Creationists, Global Warming deniers, anti-vaxers, Randians, and Libertarians are automatically presumed to be idiots; Christians and Muslims might get the benefit of the doubt, if I'm in a good mood.

See the Debate Flowchart for some basic rules.

Sourced factual corrections are always published and acknowledged.

I will respond or not respond to comments as the mood takes me. See my latest comment policy for details. I am not a pseudonomous-American: my real name is Larry.

Comments may be moderated from time to time. When I do moderate comments, anonymous comments are far more likely to be rejected.

I've already answered some typical comments.

I have jqMath enabled for the blog. If you have a dollar sign (\$) in your comment, put a \\ in front of it: \\\$, unless you want to include a formula in your comment.