Philosophers in Medical Centers

PHILOSOPHERS IN MEDICAL CENTERS

edited by

WILLIAM RUDDICK New York University

for THE SOCIETY FOR PHILOSOPHY AND PUBLIC AFFAIRS

1980

Editorial Assistance: Typing: Typesetting: Book Design: Printing:

Carolyn Riehl Candace Rosen Bob Silver Jo Villar INC A Printing 129 Lafayette Street New York City Copyright: The Society for Philosophy and Public Affairs, ©1980

Table of Contents

Forew ord......................................................................................................................................i Acknowledgments ...................................................................................................................iii HOW CAN DOCTORS AND PHILOSOPHERS WORK TOGETHER? ....................1 William Ruddick, Ph.D. Department of Philosophy, New York University THE PH ILO SO PH ER IN THE HOSPITAL: PH ILOSOPHY IN M EDICINE AND PHILOSOPHY O F M ED IC IN E................. 13 Victor W. Sidel, M.D. Department of Social Medicine, Montefiore Hospital and Medical Center and Albert Einstein College of Medicine PHILOSOPHERS AND COMMITTEES: A LESSO N ................................................... 17 Steven Wasserman, P h.D ., J.D . Department of Social Medicine, Montefiore Hospital and Medical Center REFLECTIONS OF A PH ILOSOPHICAL B U R E A U C R A T ...................................... 25 Richard Roelofs, Ph.D. Department of Social Medicine, Montefiore Hospital and Medical Center PHILOSOPHY IN A M EDICAL SCHOOL: GETTING ESTABLISHED.................50 Natalie Abrams, Ph.D . and Michael Buckner, Ph.D. Philosophy and Medicine Program, Office of Urban Health Affairs New York University Medical Center CAVEAT Q U IPR A EM IU M A CCIPERE VULT ............................................................68 Bernard H. Baumrin, P h.D ., J.D. Department of Philosophy, Lehman College, City University o f New York WHAT DOCTORS WILL AND W ON’T D ISC U SS....................................................... 69 Sidney Morgenbesser, Ph.D . Department of Philosophy, Columbia University BIOETHICAL CONSULTATION: A HARD CASE AND A PROPOSAL ............. 73 Steven Wasserman, P h.D ., J.D . Department of Social Medicine, Montefiore Hospital and Medical Center FURTHER Q U ESTIO NS......................................................................................................77 Victor Marrow, M. A ., Dean of Continuing Education, Long Island University CONCLUDING NOTE William Ruddick, Ph.D.

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FOREWORD

For four years philosophers have been working in and around two New York medical centers. People often ask about this improbable project, “ Just what is it you are doing?” or, more skeptically, “ W hat have you actually accomplished?” These various essays are our answers. We trust that our reflections will be o f interest to clinicians, administrators, and philosophers with similar projects in mind or in motion. More generally, these accounts illuminate the scope o f “ applied ethics” and the prospects for professionally trained philosophers outside philosophy departments. We welcome comments and comparison with philosophy projects at other medical centers. Correspondence and requests for additional copies may be addressed to the editor, Department o f Philosophy, New York University, New York, New York 10012. Bioethics Committee, The Society for Philosophy and Public Affairs, New York Chapter: Bernard H. Baumrin (Lehman College, City University of New York) Jeffrey Blustein (Barnard College) Victor M arrow (Long Island University) Sidney Morgenbesser (Columbia University) William Ruddick (New York University) Peter Williams (State University o f New York at Stony Brook) Mary Wiseman (Brooklyn College, City University of New York)

ACKNOWLEDGMENTS O f the many people who have assisted and encouraged us we wish especially to acknowledge the following: at Montefiore Hospital and Medical Center, Nancy Dubler, J.D . (Department of Social Medicine) Alan Fleichman, M .D. (Department of Pediatrics) David A. Kindig, M.D. (Director) Jean Nardelli (Department of Social Medicine) Helen O ’Brien (Department of Social Medicine) Bennett Rosner, M .D. (Department of Psychiatry) Daniel Schwartz, Ph.D . (Office of the Director) Victor W. Sidel, M .D. (Department of Social Medicine) Eve Teitelbaum (Department of Social Medicine) at New York University-Bellevue Medical Center, Ivan L. Bennett, Jr., M .D. (Dean, School of Medicine; Acting President, New York University) Allan Dumont, M .D. (Department o f Surgery) Albert F. Keegan, M .D. (Department o f Radiology) Stephen Leslie, M .D. (Department of Medicine) Margaret M cHugh, M.D. (Department of Pediatrics) Lois Lyon Neumann, M .D. (Department o f Pediatrics) Carolyn Riehl (Office of Urban Health Affairs) Alex Rosen, Ph.D . (Office o f Urban Health Affairs) Candace Rosen (Office of Urban Health Affairs) Susan Wojtasik (Office of Urban Health Affairs) A rthur Zitrin, M .D. (Department of Psychiatry) We also thank James Dougherty and Valerie Peacock (National Endowment for the Humanities) Daniel Callaghan and Ronald Florence (New York Council for the Humanities) Barbara Bralver and Kay Ryan (Grants Office, Lehman College, City University of New York) M artha Dunne and Ann H. Greenberg (Office of Sponsored Research, New York University) and our project advisors and evaluators, Eric Cassell, M.D. (Cornell University Medical College New York Hospital) Martin Lieberman, Ph.D. (New York Academy of Medicine) Edmund D. Pellegrino, M.D. (Catholic University of America) Kenneth Schaffner, Ph.D. (University of Pittsburgh) This project was supported in part by grants from The National Endowment for the Humanities: PD 29638-77-1144 The New York Council for the Humanities: 76-107 iii

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HOW CAN DOCTORS AND PHILOSOPHERS WORK TOGETHER? William Ruddick, Ph.D.* Department of Philosophy, New York University Philosophers and physicians normally live in disparate worlds. In a single university their departments may be miles, even cities apart—a distance that reflects radical differences in their work. Indeed the stereotypes the philosopher and the physician have o f themselves and of one another would seem to make collaboration impossible. How then did this project at two New York medical centers come about? And what have philosophers and doctors produced by their joint efforts during the last four years? In this general introduction I’ll review the history o f the project and three kinds of collaboration: team-teaching, committee work, and discussion of morally arresting hospital cases. The one result I shall propose and illustrate is: professional self-consciousness. Philosophers and physicians have through these joint activities become aware o f their respective professional reflexes and assumptions. In some instances this new awareness has led to reforms, personal and institutional. The contrasting stereotypes have been called into question and somewhat altered. To appreciate this project and its results let us briefly examine standard differences in the training and goals o f doctors and philosophers. Doctors are therapists, attendants on individual patients. They must learn to observe carefully and to act decisively. They sharpen their sight and touch by examining and describing a variety of specimen organs, tissues, and patients—a version of “ Show-and-Tell.” And with varied experience they acquire that semi-articulate, confident “ clinical judgm ent” on which they rely if they and their colleagues fail to agree on a course of action (or inaction). Whether diagnosis and a therapeutic course are reached by discussion or “ clinical judgm ent,” physicians proceed then to secure a patient’s cooperation. The tradition of “ doctor’s orders” has been modified by informed consent forms, but physicians still get their way by means o f rhetoric. As with lawyers and other practical persuaders, doctors tend to view conversation with patients instrumentally. What a patient says to a doctor is heard with the diagnostic ear. (An old medical school joke: The five classical signs o f infection: Tumor, Calor, Rubor, Dolor, and . . . Clamor.) Conversely, what a doctor says to a patient is often part o f the treatment process—a verbal placebo meant to provide relief, or a verbal adjuvant meant to enhance other kinds o f remedy. This lack of candor is not condemned in any physician’s oath or code. Indeed, if “ Primum non nocere” is the overruling principle of practice, then it will govern a physician’s remarks as well as other interactions with patients. The therapist’s goals are Cure and Patient Welfare, not IVuth and Patient Autonomy. Philosophers, by contrast, train their wits not their senses by what might be ‘ Project Co-director (with Victor Marrow) 1976-77 Project Director 1977-80

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called “ Invent-and-Argue.” Rather than presenting and deciding actual cases, philosophers contrive and debate hypothetical cases. (“ Suppose one twin needs a kidney from a brother who dislikes him . . .” ) As in physics and jurisprudence, the philosopher’s inventions can sharpen theoretical issues which actual cases confuse. Like physicists and jurisprudents, philosophers are theorists, not casuists: they may ignore cases too complex or uncertain for theoretical analysis and decision. Yet this theoretician’s license has a price. Unlike practitioners (engineers, judges, physicians) philosophers cannot decide difficult cases by appeals to wide experience, intuition, or “ educated guess.” In philosophy there are no “ unprincipled” decisions, no magisterial exercises of “ clinical judgm ent.” Admittedly, philosophers declare that certain notions (“ better off dead,” “ proxy consent” ) are incoherent. But these displays of “ conceptual judgm ent” must be supported with reasons acceptable in principle to any “ rational being” with patience enough to follow the philosopher’s exposition. Or when philosophers declare some novel or common phrase “ nonsensical,” they speak not as authorities but as reflective speakers of our common language. Philosophers do attend inordinately to language and our use o f it. They are forever challenging us and one another to restate, define, and make precise. This philosophical kibbitzing may at times resolve disputes by showing differences, clearly stated, to be “ merely verbal.” On the contrary, philosophical examination may drive disputes to a more abstract metaphysical level where differences of principle allow no hope of resolution. Philosophers may make peace or trouble. But as theorists, not therapists, their goal is clarification, whatever the bearing on feelings or actions. Articulate clarity, not harmonious action, is their professional aim. Were there a philosophical analogue to the Hippocratic Oath it might read: I swear by the soul (or example) of Socrates . . . I will apply dialectic measures for the enlightenment o f my audience according to my ability and rational judgment; I will keep them from deception and error . . . I will not use false comfort, not even on sufferers from anxiety, but will Withdraw in favor of such people as are engaged in this work . . . And so forth, with each entry illustrating not the physicians’“ Primum non nocere,” but rather “ Primum non fallere” (Above all, do not mislead).Error, not harm, is the philosopher’s professional sin. O f course, error may lead to harm, but so too may clarity and truth. Why do philosophers take no Socratic Oath on graduation? Why do they not bind themselves ceremonially to one another and promise to serve the public with benevolent restraint? Philosophers are not collegial. Apart from occasional 2

testing of ideas by debate, philosophers tend to work alone, in the uncivil manner of Kierkegaard, Nietzsche and Wittgenstein. They tend to avoid committees where the level of discussion and decision falls short of rational ideals. They are not team-players: philosopher-kingship or nothing. And few aspire to kingship. Even those philosophers who now write about war, death, and sex are modest about the social import of their ideas. Admittedly, philosphers do have familiar professional trappings: journals, conferences, peer review, apprenticeships and reluctantly conferred credentials. They do form committees to define and apply standards of professional competence. (The Bioethics Committee played this role at the outset o f our project.) But these activities are in the service of philosophy, not of any public who might be influenced by philosophic efforts. In their own eyes as well as the public’s, philosophers engage one another in subtle problems of little practical consequence. If they constitute a profession, it is certainly no service profession. Enough stereotyping. However accurate or widely entertained, these images of physician and philosopher—with their contrasting attitudes toward experience, language, and social action—should have kept their real-life counterparts miles apart without complaint from either side. How then did the idea o f collaboration arise? What led philosophers to knock on the clinic door or physicians to open it? In the decade before our project, academic philosophy in America was being broadened by internal criticism and external political forces, while medical practice was being transformed by external criticism and internal technological forces. In the 1960’s philosophers began to criticize and to abandon their prior formal, methodological preoccupations for more “ substantive” and “ normative” interests. (Philosophers of science began to scrutinize particular scientific theories in historical, mathematical, and conceptual detail. Philosophers o f language studied grammatical theory and developmental psychology. Moral and political philosophers took up welfare economics and decision theory.) In addition to these theoretical shifts, philosphers were forced by their students, popular debate and the Vietnam War to address some o f the life-and-death issues that were disrupting civil and academic routines and assumptions. Abortion, kidney dialysis, and civil disobedience began to compete with lying and promise-keeping for class time in ethics courses. In 1969 a group of thirty philosophers met in New York to found a Society for Philosophy and Public Affairs. Unlike other new groups (the Hastings Center and the Society for Health and Hum an Values) founded in that anno mirabile, the Society addressed itself initially to the academic community. Its aim was to make discussion of pressing, gutsy issues intellectually responsible and respectable. Perhaps in time public and legislative debate might benefit from sustained academic attention. Some founding members were impatient to address non-academic audiences and criticized this “ trickle-down” strategy. In the early 1970’s social conditions further kindled impatience: philosophy departments began contracting and encouraged untenured faculty and graduate students to pursue other careers. In response the Society undertook to find or create new kinds of work for

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philosophers outside philosophy departments. O f several proposed projects, a program in medical ethics seemed to be the most promising, and a small group of philosophers in the Society’s New York chapter formed a committee to find funds, hospital sponsors, and suitable candidates.1 But, granted that philosophers had become both topical and hungry, why should physicians have shown any interest in them? Medical practice too had been changing in many ways that were propitious, at least in retrospect. There had been the internal pressures of higher technology and research which had driven physicians into greater dependence on hospitals and other health professionals. Medical practice had increasingly become team-work with physicians, nurses, social workers, psychiatrists, clergy and other hospital workers. To admit to the “ team ” yet another non-medical person, even as undefinable as a philosopher, was perhaps a novel thought, but not a startling one. Moreover, philosophers might help physicians think about and respond to the increasing public criticism and regulatory review by external funding bodies, federal and private. Through personal contacts we found two sponsors—Alex Rosen, Director of the Office of Urban Health Affairs, New York University School of Medicine, and Victor W. Sidel, Chairman o f the Department of Social Medicine, Montefiore Hospital and Health Center. Inspired by religious and political ideals, our sponsors and their associates (including an informal religious group at Bellevue, “ H olos” ) were trying to improve the quality and distribution of medical care in their hospitals, as well as in the communities and prisons these hospitals served. They were happy to have new allies in their understaffed good works, if new funds could be found. The Bioethics Committee, formed for the very purpose, approached the New York Council for the Humanities. To qualify for a grant we had to show that our project would be a “ public program ” for people beyond the range of university activities. We claimed that most nurses, doctors and medical students were, even within universities, so isolated from the Humanities by their training and work that they were the equivalent of a non-university audience for whatever we might say and do. With remarkable trust and generosity, the Council gave us funds for four part-time positions which we advertised as follows: . . . Philosophers will work with medical staff, nursing and medical students, and patient groups to further interest in and knowledge 1 The initial Bioethics Committee o f the chapter consisted of Professors Stefan Baumrin, Lehman College, CUNY; Jeffrey Blustein, Barnard College; Victor Marrow, New York University—now of Long Island University; Sidney Morgenbesser, Columbia University; William Ruddick, New York University. In the second year Professors Peter Williams, SUNY at Stony Brook and Mary Wiseman, Brooklyn College, CUNY joined the Committee. Professor Bertram Bandman, Long Island University and Elsie Bandman, H unter College School of Nursing and David Rosenthal, Lehman College, CUNY also took part in the project in its early stages. Our outside reviewers and consultants in the first year were Dr. Eric Cassell, Cornell University Medical College and Dr. Marvin Lieberman, New York Academy o f Medicine. In later years, our official reviewers were Dr. Edmund Pellegrino, Yale University School o f Medicine (now at Catholic University of America) and Professor Kenneth Schaffner, University o f Pittsburgh.

o f medical ethics and related philosophical topics. This may include committee work, lecturing, planning and coordinating symposia, writing for hospital newsletters, and informal discussion. . . . Qualifications: Ph.D . in philosophy, or equivalent. When a number o f clergy applied, we discovered an embarrassing syntactical error: we had meant “ Ph.D . or equivalent, in philosphy.” The Council director would have welcomed a cleric (or even a “ Dakota medicine m an” ). But we interviewed only people with standard (for the most part, recent analytic) philosophical training. We hoped to show that such academic philosophers could do useful work in medical centers. We left it to others to find funds to prove the hospital benefits of theologians, or other “ hum anists.” A “ hum anist” in foundation lingo need not be an atheist. It is enough to practice some primarily verbal, non-mathematical, non-experimental craft. We interviewed the applicants in groups o f ten, in the style o f medical intern interviews at one of our centers. We thereby hoped to test the candidates’ social capacities for informal philosphical chat with various clinicians and one another. In the final rankings, the philosophers tended to give more weight than the medical center judges to proven philosophical ability, especially previous written work. The clinicians, medical school administrators and students were more concerned with philosophers who could make their way in the medical centers with some social ease. And rightly so, for the social and political demands of medical centers far exceeded those o f ordinary university life. The first social task was to decide upon suitable forms of dress and address. After some debate the chosen candidates rejected white coats as deceptive, but not the title “ D octor.” For institutional titles they tended to resist “ Bioethicist,” or “ Medical Ethicist.” These terms had already been claimed by theologians and clerics who, at that time, were the most prominent figures in hospital work and in the literature of medical ethics. They preferred the less informative “ Philosopher-in-Residence,” or “ Philosopher-Resident:” these more general titles would allow them to define and redefine their work without apology as they learned their way about in the medical centers. Moreover, these general titles expressed their belief that bioethics must remain embedded in the whole of philosophy (theory of knowledge, metaphysics, logic, and political philosophy). For some clinicians and students, “ Philosopher-Resident” conveyed no inform ation at all. But once the philosophers had secured office space and telephones, curiosity and suspicion diminished, and they were left alone to ask and answer for themselves the unsettling question, W hat do philosophers do in a medical center? One of the successful candidates had during the interviews impressed everyone with the claim, “ A philosopher is a bullshit detector.” But that answer, even if true, was no guide to immediate action. The various reports in this collection constitute our detailed answers to the question, What can (and can’t) philosophers do in medical centers? I shall briefly review here the work that brought philosophers and doctors into closest 5

collaboration, and I’ll provide examples of that reforming professional selfconsciousness cited at the outset. 1. Team-teaching. Philosophers are not trained to teach but most o f them intend to teach and, willy-nilly, have the models of their own teachers to guide them. Even though teaching was to be a relatively small part of the project, we wanted philosophers who had a teacher’s ability to be clear and responsive when talking to people who had neither interest nor background in philosophy. (Everyone may be a philosopher in the sense of having philosophic opinions, but not in the sense of being able to identify, state, and critically examine such opinions.) At the same time we wanted to avoid candidates who had become pedantic or garrulous through too much lecturing to captive audiences of liberal arts undergraduates. Whatever time might be granted to philosophers would be measured in minutes, not hours, and most probably shared with medical school teachers as innocent of philosophy as their audience. Within the first year philosophers began team-teaching with clinicians (especially pediatricians) and lawyers. Gradually this work expanded to include first-year medical school course lectures, third-year clinical clerkship “ ethics rounds,” and house staff case conferences during grand rounds. A standard schedule for these joint sessions is: the clinician presents an actual case, the philosopher “ identifies the m oral/ethical issues,” the audience responds. The merits o f this “ case m ethod” are clear. The team-teachers divide the time along the recognized boundaries of their respective “ fields o f expertise.” The medical details of the case lure listeners suspicious of “ abstractions,” “ generalities” and “ unreal cases.” And cases tether subsequent discussion; if the philosophical kite soars out of sight, the case can be used to reel it in or even ground it. (“ How long did he live after dialysis was discontinued?” , “ Did the family sue?” , “ What was the daily cost of dialysis?” ) The demerits of this format are less obvious, but troubling. The clinician may present too many details, or too few, for the philosopher’s purposes. In order to set out moral issues clearly and quickly, the philosopher may have to simplify or, alternatively, elaborate the case, and thereby alienate the more clinically minded who treasure real cases. Moreover, this division of labor reflects the common view that, in scientific matters, facts are separable from both theory and values. A medical audience is prone to want “ Data first, Speculation (if necessary) after.” Philosophers of science now reject the separation of fact and theory as an Empiricist distortion of both history and logic of science. (“ Data are theoryrelative,” “ Data are taken, not given” ). And moral philosophers now reject the fact-value dichotomy as equally false to moral experience and ethical reflection. If “ the facts” are not separable from theory or values, then “ ethical analysis” must accompany, not follow the selection and description of “ the facts.” Medical histories, for example, are not value-free chronicles, even in their clinical details. 6

These deeper philosophical claims aside, we can see how easily morally indifferent clinicians can neglect crucial data and questions. (In interviewing a dialysis patient, no one had asked how his sister’s kidney had been secured for transplant.) Admittedly, clinicians who team teach with philosophers are not likely to be morally indifferent, even if the case in question is too sketchy without elaboration for full moral analysis. For example, one team-teacher presented a troubling case from his own obstetrical practice. He was called by a man who had contracted gonorrhea on a business trip. The man asked the clinician, who had delivered their four children and was currently giving his wife a routine examination, to treat her but conceal the diagnosis. The doctor complied for what he judged to be the best interests o f the marriage, but was subsequently troubled by his decision and asked the philosopher and medical students to review the case. In discussion various ethical concerns emerged: the wom an’s right to know the correct diagnosis, the difficulty of identifying and weighing harms and benefits even for patients a clinician knows well, and the distinction between moral and legal responsibility. But there were “ missing moral data” : Would the wife have agreed with the m en’s description o f the infidelity as “ a m istake” ? How would she have reacted if she later discovered a double deception by her husband and her physician? Was she likely to have transmitted the disease to others? Clinicians who are morally sensitive may also be ethically knowledgable: in addition to moral concerns they may have a vocabulary of theoretical terms and principles used among ethical theorists. If so, a philosopher may have the double task of analyzing the presented case and criticizing the clinician’s own analysis, a problem in time and civility. (A case in point: Another clinician, commenting on this case a year later, confused and angered the class with a mixture of “ utilitarian” and “ deontological” reasons for forcing the husband to confess to his wife in the presence o f the doctor, who would then play marriage counselor.) Time in a medical school curriculum or hospital day is always scarce. Time pressure and the threat of factual “ kite-grounding” encourage sloganeering. For philosophers, careful argument and exposition often count more than conclusion; ill-supported slogans are, even if not misleading, an almost equally unprofessional sin. There are some precautions team-teaching philosophers have discovered. Carefully co-select and discuss the case with the clinician in advance. Set out some general moral matters before the clinician presents the case in detail. Give up the need to do “ a thorough jo b .” The short-term goal is to make moral discussion professionally acceptable, even routine among medical students and clinicians. Hence one should not judge these brief encounters by the standards of clarity and sophistication philosophy teachers employ in their own classes. It is enough that certain questions, issues and sketchy answers come into play perhaps for the first time. Such classes can encourage current and future clinicians to think of moral questions about therapeutic decisions as a m atter for public analysis, rather than a matter of intuition or private conscience protected by professional authority. As semi-public occasions, team-taught classes contribute to the “ professional self-consciousness” our project produces. 7

Philosophers have also teamed with lawyers and psychologists, whose training and concern for analysis of human action make them kindred spirits in a medical center. But there are important differences that can make for disappointment. Unlike our (stereotypical) philosophers, lawyers and psychologists are practitioners committed to clients’ welfare. Although articulate and precise, they are likely to be impatient with theoretical notions that do not bear clearly and directly on the case at hand. However tortuous the route through the legal system or the unconscious, it is likely to seem shorter than the philosophers’ usual itinerary. (“ It is the philosopher’s business to take the long way round.” ) 2. Committee work. The philosophers soon discovered that in a medical center of otherwise separate departmental principalities, committees are the main form of communal life. It is in committee meetings that philosophers get to know (and get invitations from) clinicians, social workers, and nurses from various offices and departments. And it is in committee debate that philosophers can show, and press home in sustained argument if necessary, their distinctive concerns and methods. Steven Wasserman’s experience on the Montefiore Hum an Subjects Committee is instructive. As he explains in more detail, he had proposed that the Committee require clinical researchers to inform all potential subjects of their diagnosis and prognosis. Only with such inform ation, however dire, could patients make decisions about their own interests and those o f others who might be affected. An oncologist on the Committee persuaded the Committee to reject the proposal. Appealing to his personal experience with terminal cancer patients, he argued that patients could only be harmed by this information. It would not, he said, alter their decision to participate in research or chemotherapy: patients tend to consent, whatever information they have. The only effect of the information at issue would be to disturb patients, and, as their physician, he had a duty to protect them from needless harm. It was not his duty to provide them with occasions for full rational deliberation or for altruistic moral action. The philosopher took his defeat philosophically. He concluded on reflection that he had been preoccupied with familiar philosophical concerns (autonomy and rationality) more appropriate to the world o f the active well than to that of the passive ill. He had, as it were, championed not Care but Truth—the philosopher’s occupational reflex. But the oncologist too might have learned something about his own professional reflexes from this encounter. Like the paternalistic obstetrician above and many other doctors, he limited the categories of deliberation to harm and benefit and, moreover, he quickly declared what were the relevant harms and benefits to be weighed. Yet, however impressive his clinical experience, should we accept his assumption that disturbing a patient with a dire prognosis is harmful? And should we accept his assumption that depriving a patient of a last opportunity for altruistic action is not harmful? And, even if patients are not thereby harmed, are they nonetheless wronged? Do we have duties o f facilitation to enable one another to be more virtuous? The oncologist might not have welcomed a distinction between being harmed

and being wronged, for it introduces a notion o f rights which may confound the physician’s usual risk/benefit calculations. Rights, he might have said, are for the legal and snooping professions, not for the medical and other helping professions. Doctors at an institution such as this should be left to get on with their helping, with as little legal worry and supervision as possible. Whatever the oncologist’s thoughts about his Committee victory, the encounter at the very least forced him to begin to articulate his principles of practice. This kind of self-consciousness is discouraged by professional organization, duties and routine. C onfrontation with the outsider’s different sense o f proper procedure is a necessary first step toward professional selfknowledge, self-criticism, and change. (To coin or repeat a cliche: To raise consciousness we must first raise to consciousness.) Philosophers, too, are prone to unthinking routine even though more committed in principle to m ethod­ ological self-consciousness than hard-pressed practitioners can afford to be. The failure to persuade others can, as here, force philosophers to become clearer about their own routine suppositions about the place and force of argument and distinctions. Hence, working together on committees, physicians and philosophers can induce in each other a non-professional reflection that can expand or reform their orthodox professional self-conceptions. This is an aspect o f that “ reforming self-consciousness” I cited at the outset as a product o f our project. More specific accomplishments on committees are described by Richard Roelofs, Natalie Abrams and Michael Buckner in their essays. 3. H ard cases. Some hospital cases themselves challenge usual professional routines and assumptions, and doctors are at a loss as to what to do or think. Or, nursing and house staffs may divide over a course of action without being able to defend their conflicting intuitions. Or, there may be a consensus but no clear rationale to give the patient or the family. In these situations philosophers have on occasion been able to clarify options by noting questionable assumptions or neglected moral considerations that “ tip the scales.” An example (somewhat simplified) is one of the hard pediatric cases a philosopher was asked to consider at pediatrics grand rounds. A five-year old child was brain dead following general anesthesia. Some medical staff were inclined to decide the issue of continuing life-support by asking, What would I want for m y child in these circumstances? Others rejected that question as tending to suppress any relevant differences between the child’s parents and the doctor—differences, for example, in the value placed on minimal life without mental capacities, in their belief in miracles, in their emotional reactions and resources. The philosopher posed a different question: What do the pediatric staff owe the parents under the circumstances? Once the question was raised, there seemed to be ready agreement that the parents were owed more time to live with the news of their child’s unexpected morbidity and with the hope, however,

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irrational, of his recovery. Some medical staff agreed that they, as members of a hospital in which the child had suffered injury, had an institutional duty to compensate the parents as well as they could, even though they themselves had been in no way responsible for the injury. In short, the notions of institutional duties and compensation simplified the decision by shifting from the usual, but here unyielding, question about the best interests o f the child. In addition to finding “ the right question” philosophers have also played the role o f moral historian. They keep troubling cases alive by writing, retelling and reanalyzing them over time. They are—to keep our Greek analogies—like Attic bards, minus the gifts of music and poetry. (Richard Roelofs’ case of “ Dora Klein” and the case o f concealed gonorrhea come to mind). Medical staff and students take a keener interest in a case from their own institution. More importantly, a case that is told and retold, analyzed and reanalyzed becomes part of the conceptual life of an institution: it comes to illuminate and occasionally revise hospital procedures. (See Roelofs’ discussion, p. 25.) Philosophers are in an especially favorable position for the selection and retelling of cases. Clinicians involved in a case, once disposed of, may become preoccupied by new cases, and seldom have the time or inclination for careful, possibly unsettling review. Philosophers can provide occasions for review in classes and symposia. Thus do hard cases become test cases, for students in one sense and administration in another. There are, however, several problems for collaboration over hard cases. Their complexity often makes philosophic analysis less conclusive than it can be in simpler cases. Not all cases will yield to reflection: the right question or the right moral category may not emerge. And philosophic analysis may therefore not prove its value for decision-makers. On the contrary, the case may on analysis prove even more complex than it first seemed, and philosophers will be taken to be trouble-makers, rather than trouble-shooters. Rather than providing decisive clarity as in Steven Wasserman’s deliberation about surgery for his father ( p. 73), philosophers may, as in the stereotype, drive disagreement to a “ more abstract and irresoluble state.” But there is a deeper concern. By being caught up in the concern for cases and their solution within the routines and resources of the hospital, philosophers may lose the critical distance that has been their distinctive position since Socrates. Caught up in the hospital’s daily task, they will cease to view matters “ sub specie aeternitatis,” or even from a general point o f view. Some members of the Bioethics Committee have worried that philosophers, cut off from philosophy departments and more general and moral discussion, will be absorbed into the medical center ethos. (In Victor Sidel’s terms, they will become solely philosophers in medicine; in more critical terms, they will become collaborators in a flawed system.) This is a serious concern, with no obvious solution. If philosophers are to be part of the hospital life, they must (as we learned in the first year of the project) keep hospital hours: they must be available at various times, many of them unscheduled and unpredicted. Hence, half-time in a university department and half-tim e in a medical center would not be a totally satisfactory compromise. 10

Even if our stereotypes exaggerate the distance, the two worlds of hospital medicine and academic philosophy are too far apart for a commuter shuttle service. But if philosophers must be on call full-time at the hospital, how long will they keep a base in their own discipline from which to m aintain their philosophical perspective? Even if academic philosophy has become more tolerant o f “ applied philosophers,” how will philosophers resident in medical centers keep up professional ties and interests? W ithout those ties, the philosophers stand to lose, according to one of our evaluators, the confidence of clinicians who judge non-clinicians by their reported standing in their own professions. Although medical center residents, the philosophers in this project have kept wider perspectives and ties by various means, extra- and intram ural. They have studied and taught in areas remote from bioethics (philosophy o f mind, philosophy of religion) in the liberal arts college of the university, as well as in the medical center. They have taken part in conferences and regular discussion groups in other fields of philosophy and political thought. And they have insisted on appointments as lecturer in or professor of philosophy (rather than proposed narrower, practice-oriented titles such as “ bioethicist” ) in order to make clear the continuing dependence of bioethics on more general philosophical concerns. They agree with doctors who worry about professional standing that casuistry without theory is superficial, analogous to dermatology without physiology, or primary care without tertiary backup facilities. (Witness current attempts to think about informed consent without the resources of philosophical work on language, understanding, and rationality.) To well-meaning critics who worry that philosopher-residents will become physicians’ or hospitals’ collaborators in the pejorative sense, what finally can be said? As actual or potential “ team -players,” how can philosophers work for significant reforms, especially from relative weak positions as new-comers and as members o f programs at the periphery of medical center organization? There may be, as Victor Sidel suggests, benefits from a peripheral position. But “ working from within” at whatever distance from the center o f institutional power, philosophers can hold an audience only if their criticisms are very carefully formulated, directed, and timed. They will have little opportunity to play the gadfly to the sluggish hospital body-politic. Socrates’ other metaphor is more apt: the philosopher as midwife (of ideas). Both practice an unobtrusive art which makes delivery, hence conception itself, less fearful. O f course, like midwives, philosophers may be dismissed by physicians as amateurish invaders of well-governed territory. Professionals resent those who do not accept the technical routines by which professional practice is defined and justified. And institutions resist those who do not easily fit into the heirarchical routines by which daily life is ordered. But without the perspective of “ am ateurs” and “ outsiders” those routines become self-serving rather than client-serving. Physicians, we immodestly claim, need philosophers to enable them to remain therapists, in spite of professional and institutional pressures to become functionaries. We offer the following essays as evidence for that need and for the mutual benefits of collaboration in a good sense.

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THE PHILOSOPHER IN THE HOSPITAL: PHILOSOPHY IN MEDICINE AND PHILOSOPHY OF MEDICINE Victor W. Side), M.D. Fellow in Bioethics, Department of Social Medicine, Montefiore Hospital and Medical Center In 1976, the Bioethics Committee o f the Society for Philosophy and Public Affairs invited the Department o f Social Medicine at M ontefiore Hospital to collaborate in preparing a grant proposal to the New York Council for the Humanities for the placement of philosophers in two medical centers in New York City. Montefiore Hospital is a general hospital in the Bronx borough of New York City and is the principal teaching hospital of the Albert Einstein College of Medicine. Its Department o f Social Medicine, the only hospital-based department with that name in the United States (although there are a number in Europe), is a department equivalent in the hospital structure to other clincial departments such as Medicine, Surgery, Pediatrics, Radiology, and Psychiatry. The department works at the interface between the hospital and its community through programs that include, among others: the Community Health Participation Program, which trains residents in the local community in techniques of health prom otion and protection for their neighbors; the Occupational Health Program , which works with labor unions in health promotion and protection for their members as well as in other aspects of health in the workplace; and the International Health Program , with a number of education and organization projects, particularly in Hispanic America. Inside the hospital, the department is responsible, for example, for the Methadone Maintenance Treatment Program and for the work of the Ambulatory Medical Care Audit Committee; the Chairman o f the Department is Chairman of the Hospital Institutional Review Board for Research on Hum an Subjects. Finally, and of particular relevance to its collaboration with the Society for Philosophy and Public Affairs, the Department has for a number o f years conducted rounds, conferences, and other activiities in various aspects o f medical ethics. As a result of the funding of the proposal prepared by the Society and of other sources of funding that have followed it, including funds from the Hospital itself, for the past four years one or two professional philosophers have been working part-tim e or full-time at Montefiore. Elsewhere in this volume these philosophers, Dr. Richard Roelofs and Dr. Steven Wasserman, have reviewed aspects of their work during this period. Dr. Roelofs and Dr. Wasserman have made im portant contributions toward improvement o f the content and humanity of patient care and toward improvement in the content and quality of professional education at the hospital. These contributions have included work with the Hospital’s Institutional Review Board for Research on Human Subjects, with its Bioethics Committee, with several of its clinical departments, and with a large number of individual physicians, nurses, social workers, administrators, medical students, and others in the hospital. Subsequently their work has involved, among other topics, the rights of patients as the subjects of diagnosis 13

and treatment as well as the subjects o f research, the rights o f members of individual groups such as the Jehovah’s Witnesses, the ethical dilemmas posed by various forms o f technology, and the development of institutional as well as governmental policies in these areas. My purpose in this contribution, however, is not to review the specific work of the philosophers at Montefiore. The areas and styles o f work chosen by individual philosophers, in a setting in which there are few precedents for their functioning and in which new ground must be broken daily, is highly personal and depends on their interests, skills, and personalities. I propose rather to focus on the more generalizable lessons that having philosophers in the hospital and in our department have made us aware of, broader questions about the role of the philosopher and o f philosophy in the general hospital. The work o f a hospital is highly focused. It is targeted on effective response to the immediate medical care needs of the patients who come or are brought to its emergency room , who visit its am bulatory care services, and who fill its beds. Although considerable teaching and research, and some work in community health and patient education, indeed takes place in a hospital like Montefiore, these activities are usually subordinated to the task of direct care for the medical needs of the patient. It is not unusual, for example, for a house officer or a medical student to be called out of a lecture, seminar or conference to attend the needs of an ill patient. It is not unusual for researchers to be interrupted in their research in order to consult on or directly care for a patient. These abrupt removals from academic activity—these interruptions in thinking about the broader aspects of medicine and its relationships—are expected in the hospitals. They are part of its social milieu. No apology need ever be offered for the interruption nor do those interrupted usually consider themselves ill used. People who work in a hospital in part work there because there are immediate patient needs to be met. This attitude of course extends to the content of the rounds and conferences in which clinicians in the hospital participate. Most of these sessions are directed to an analysis of the problems of individual patients and their diagnosis and treatment. Discussion of underlying physiological, psychological or pathological issues is usually welcomed insofar as it appears relevant to an understanding of the patient’s—or even other patients’—needs. Discussion of the social and economic factors in the patient’s illness, on the other hand, is rarely welcomed but is tolerated if it contributes clearly and directly to patient care. In this vein, discussion o f ethical issues o f immediate concern to the hospital staff in the care o f the patient are acceptable; discussion o f broader questions are rarely acceptable except under special circumstances. In short, the comments of “ outsiders” are tolerated if they “ help” the clinicians do “ their w ork.” When a philosopher (or a sociologist, economist, or anthropologist, for that matter) enters such a milieu, for the work to be successful accomodation must be made to the primary purpose o f the institution and to the attitudes of its personnel. Even if responsiveness to immediate patient care needs in content and in style were not necessary for effective work with personnel in the hospital, the seduction of contribution to immediate patient care may be great. From such 14

contributions may be obtained the most visible short-term results, the greatest short-term gratifications. To be o f help to an individual patient produces a “ high” that is rarely matched by any form of academic stimulation. The net result of these pressures on the philosopher in a medical center is that the philosopher may spend most time working on and consulting and teaching about issues related to the care of individual patients. Examples include procedures for informed consent by patients to treatment or research, and appropriate decision-making (particularly where value conflicts are at issue) for, with, and by patients and their families. I don’t mean to make this role of the philosopher sound easy or easily-accepted; there is still considerable resistance by clinicians to even this “ co-opted” role for the philosopher. The consequences of an emphasis on “ cases,” while often extremely useful for the care of the individual patient involved and for the peace-of-m ind o f the individual care-givers, may be a de-emphasis on some of the other ways in which philosophers might contribute in the hospital. There may be more an emphasis on speed and facility o f response than on depth or breadth o f analysis. There may be fewer attempts at finding or teaching general principles. There may be an emphasis on “ bending the rules” or “ getting around the attitudes” for this particular patient at this particular time rather than changing the rules or changing the attitudes so that the next patient in this circumstance will also benefit from the effort. Their need to generalize will inevitably lead some philosophers in medical centers to work in committees and to work with administration in broader attempts to educate, to change attitudes, to change patterns of care, and to change the rules. Here the concern is usually with the next patient, not with this patient. In committee work there is at least a bit more time for the philosopher to analyze the issues, to seek theoretical sources and empirical precedents, and to explain the rationale for advice rather than simply to offer it. Committee members are usually more patient with what they view as discussion of “ philosophical” issues than are the clinicians at the bedside or in the case conference. Contributions by the philosophers at Montefiore have strongly influenced the work of several committees and materially helped shaped the outcome o f their work on a number o f issues. But the work described so far, whether around immediate answers to questions on a current patient or on work with clinicians, committees, or administration about the care o f later patients, is still designed to be of “ help” to the clinicians and the institution in what they perceive as the most effective prosecution of “ their” task. It is almost inevitable that the philosopher working in such an institution will want to be of help in this way. In order to have the help accepted the philosopher may avoid exploring some of the assumptions that underlie the institution, how it got to where it is, whom it serves, and at what cost, whether social, economic, political or moral. In short, what the philosopher in the medical center is likely to work on most may be termed “ philosophy in medicine.” It is extremely useful work, and can make m ajor contributions to the care of patients. This work must, however, be differentiated from work that may be called “ philosophy o f medicine.” This effort is of a very different kind. It explores the 15

basis of the medical care system, its structure, its methods, its recruitment and socialization o f personnel, the access of community members, and medicine’s overall impact on its community. Examples o f those working in fields not usually labeled “ philosophy” who are exploring these kinds of issues are Ivan Illich, Vicente Navarro, and Thomas Szasz.* The questions being asked by these analysts attack the very basis on which most hospitals (and many other medical institutions) in the United States (and in many other countries) were built or now function. Philosophy, like sociology, anthropology, economics, and political science, has a record o f concern with this type of problem. Many philosophers are concerned with distributive justice, with power and its distribution, and with exploitation of one group by another, as they relate to health and to health care.** These philosophers have made significant contributions to broad questions like the role o f medicine and its practitioners in the community and to only slightly narrower ones like universal health insurance, allocation o f scarce resources, and cost containment. The issues that the philosopher in the hospital explores are o f course not irrelevant to these broader questions, but there is often little time or patience for discussion of such questions in the hospital setting. More importantly, the tolerance for discussion of these issues—which appear to threaten the very existence o f the institution in its current form —by an “ outsider” may be limited. The problems o f whether the philosopher working in a hospital is an “ insider” or an “ outsider” and the extent to which the focus will be on immediate “ cases” leads to yet another question, that of the “ auspices” in the hospital under which the philosopher works. There are a number o f possible “ homes” for the philosopher in the hospital; among them are: a specific clinical departm ent, such as the Department of Medicine or the Department of Pediatrics; a unit o f the administration, such as a Bioethics Committee or a Patient Representative Office; or an “ outreach” department, such as a Department o f Am bulatory Care or a Department o f Community Medicine. Each of these “ homes” has potential advantages and drawbakcs. A home in a clinical department surely brings the philosopher closer to clinical problems and strengthens the “ insider” image, but may limit the extent to which broader issues are addressed. A home in administration surely implies that planning issues will be part of the philosopher’s agenda, but may lead to “ image” and access problems in relation to clinical care. A home in an “ outreach” departm ent usually permits consideration of clinical and administrative issues, but may label the philosopher with the special role of the department. The Department of Social Medicine at Montefiore, for example, •W orks which illustrate this orientation include, for example Illich’s Medical Nemesis (N.Y.: Pantheon Books, 1978), Navarro’s Medicine Under Capitalism (N.Y.: Prodist, 1976), Szasz’ The M yth o f M ental Illness (N.Y.: Harper and Row, 1974), and Ruth Sidel’s and my A Healthy State: A n International Perspective on the Crisis in U.S. Medical Care (N.Y.: Pantheon Books, 1978). “ Publications from this point of view include Robert Veatch and Roy Branson, editors, Ethics and Health Policy (Cambridge, Mass.: Ballinger Publishing Co., 1976), Elsie Bandman and Bertram Bandman, editors, Bioethics and Hum an Rights (Boston: Little, Brown and Co., 1978); and the essay by Sidney Morgenbesser in this volume.

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conducts almost no direct clinical programs but is involved in a wide variety of community programs and in planning and evaluation within the hospital; the department is also known for its “ public health” orientation and for taking outspoken positions on social and economic issues related to medical care. On the one hand the philosopher may become part o f—or at the least be viewed as a part o f—the special orientation of such a department; on the other hand, the department, hoping to be useful clinically, and to enhance its own influence in a milieu dominated by direct patient care, may lean over backward in urging the philosopher to be concerned with individual clinical problems. In any case, the “ hom e” is not a neutral choice; its character will profoundly influence the philosopher’s role in the hospital. One advantage o f working in a department like our Department of Social Medicine is that it provides the philosopher with structured opportunities in which to learn and to teach about the broader social questions related to the philosophy o f medicine. An example o f such an opportunity is the monthly series of medical ethics discussions on Sunday mornings which have been held in my home for the past seven years. The participants have included medical students, house officers, attending physicians, nurses, social workers, administrators, and philosophers. The topics have included the ethical issues in health care for prisoners, strikes by health workers, reporting of incompetence among physicians, affirmative action programs, hierarchical structures, and other elements of the organization and financing o f health services and the recruitment, training, and rewarding of health workers. A wide range of professional, political and social points of view are represented and the input o f philosophers— several of whom are invariably present at each session—is warmly welcomed by the participants. The work of our Department of Social Medicine illustrates yet another issue in the work of the philosopher in the hospital. The efforts of the department include the work of lawyers, on legal issues related to health and on legal analysis of health problems and health services. Legal analysis of course differs in many ways from philosophic analysis, although there is a great deal of overlap in the type o f issues addressed, the body o f case law which provides much o f the grist for the mills of both the philospher and the lawyer, and some of the conclusions reached. Differences, in the hospital, include the special physicians’ concern with legal questions—particularly those related to malpractice litigation—and the general concern with rights in the concrete (the realm o f the lawyer, to oversimplify a bit) as opposed to rights in the abstract (the realm of the philosopher). Whether, and how, to bring these two disciplines together in the hospital setting are among the unanswered questions of the field. Yet another set o f issues, which I am not competent to explore, include the benefits and the costs to the philosopher. A philosopher who moves into a hospital setting will probably have to give up a great deal in the academic aspects of the profession. W hat the philosopher gains from “ hands on” work in the hospital is of course valuable professionally, but there would appear to be an academic opportunity cost involved. It may be, from the philosopher’s point of view, that part-tim e work in the hospital and part-tim e in an academic 17

department of philosophy or in a philosophic “ think-tank” is the preferable structure. Such an arrangement may also permit the philosopher to bring to the hospital insights gained from his interaction with academic colleagues and to bring to academe some real world problems to which access is usually difficult. What the philospher will miss, however, by undertaking time-consuming regular obligations outside the hospital, is the opportunity for continuing interaction with members o f the hospital staff and the ability to respond reliably and quickly to the urgent requests for consultation or help that is the hallmark o f work in the hospital. On balance, although there are some who question it, the general hospital probably plays a net useful role in our society. And, on balance, with less dissent, a philosopher’s net contribution to the work of a hospital can almost certainly be a useful one. The benefits of the philosopher’s contributions are difficult to define, even more difficult to quantify, and impossible to express in terms commensurable with some o f the units in which cost are measured; many other aspects of the hospital’s work share these problems of measurement of benefit, of course. But the potential contributions of the philosopher to the care o f patients, to the satisfaction of clinicians, and to concerns of administrators seem clearly useful. On the cost side, compared to the costs of other elements o f the hospital’s work, purchase of the services of a philosopher is inexpensive indeed. Other elements of cost to the hospital and its personnel—time, space, “ distraction” from other issues—are undoubtedly real, but impossible to quantitate meaningfully. The opportunity costs for the philosopher compared to other work that might be done in philosophy are best commented on by others, but appear to me to be manageable. In sum, the role of philosophers in medical centers has only begun to be explored. While they are almost certain to have a difficult time in some ways and in some other ways to be co-opted by the objectives, by the structure, by the personnel, and by the processes o f the institutions in which they work, I believe philosophers can make significant contributions to the discipline of philosophy, to the life of the community, and to the care o f patients and their families by working in medical centers. Some exciting beginnings have been made by the Philosophers in Medical Centers Program, beginnings too im portant to be permitted to disappear.

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PHILOSOPHERS AND COMMITTEES: A LESSON Steven Wasserman, Ph.D ., J.D. Philosopher-Resident, Department of Social Medicine, Montefiore Hospital and Medical Center In the winter of 1976, I participated in a policy meeting of the Montefiore Hospital committee which is charged with establishing institutional standards of safety and of informed consent for research involving human subjects. The committee is comprised of representatives from the hospital’s various clinical specialties, Pathology and Social Medicine. In addition, the committee included at that time an attorney, two philosophers, a hospital adm inistrator, and a public health specialist assigned to represent community attitudes. Institutional review boards with this function and of similar composition were created in compliance with the government regulations promulgated by the Department of Health, Education and Welfare in 1973. Such committees provide an excellent vantage point for studying the interaction of physicians, attorneys, and academics in the field of bioethics, and a crucible in which the unexamined norms of each group are tested. The business of this policy meeting was to adopt an institutional handbook of the policies and procedures of the committee. I had been directed by the chairman of the committee to draft a formulation of the elements of informed consent that complied with the guidelines for federally funded institutions. I had gleaned from the working sessions of the committee that there were two competing conceptions of the underlying purpose of informed consent. For the most part, the clinicians conceived of informed consent as a means of protecting a patient’s physical welfare by disclosing what is known about the risks and side effects of a treatment that has been selected for its optimality and a calculation of risks and benefits to the patient. The patient is given an opportunity to veto the physician’s selection on the basis of its risks. By contrast, the other committee members, for the most part, regarded patient autonomy as the basis for informed consent; that the patient should have ultimate and intelligent control over his treatment was regarded either as his inherent right or as a goal to be achieved with the support of a physician. The competing conceptions make quite a difference in the content of disclosure that is required. The clinician’s view would not seem to require extensive disclosure about a patient’s diagnosis or prognosis, or the process of reasoning by which the treatment of choice was arrived at. Because the purpose of disclosure is protection, disclosure may justifiably be abridged for the sake of protecting a patient’s morale or disposition to recover. It is difficult to justify such omissions or abridgments if one proceeds from the principle that a patient must make the final decision on the choice of treatment. The Federal guidelines are set forth at a level o f abstraction that accomodates either view. In drawing up a formulation of required disclosures for clinical research, I was aware that the clinician’s view prevails in ordinary therapy. As a philosopher, and as a prospective patient, I had my reservations about the status 19

quo, but I felt sure it reflected a certain practical wisdom about the average patient’s needs and had been arrived at in good faith; on the other hand, it seemed to me that clinical research is quite another ball game, and it should not necessarily be governed by the same assumptions. Physicians have ancillary interests in clinical research that derive from their role as scientists, as teachers, and as servants o f society’s interests in conquering disease. Indeed clinical research is often sponsored by pharmaceutical companies and supervised by scientists who are not physicians. The laws o f the United States permit these ancillary interests to enter into the justification o f decisions that are made in connection with scientific research. Our laws are controversial because they contravene the Declaration of Helsinki adopted by the World Health Organization which restricts justification to the patient’s personal benefits. It seemed to me that any conception o f informed consent would require a complete disclosure of the basis on which the patient is undergoing risks. Furthermore, a large proportion o f research subjects are distinguishable from other patients because their selection has been based upon an unfavorable prognosis. This is true of the majority of cancer patients who are candidates for experimental drug therapies. As a patient’s prospects of recovery diminish there would be a logical tendency for a patient to consider options that promote values that lie beyond the purview of a physician’s calculations: the quality o f a patient’s remaining time, the deployment of his resources and efforts, the needs of family and friends. Therefore, it seemed to me that disclosure o f a discouraging prognosis might be an essential element of the government requirement that patients be told why they have been selected as research subjects. Accordingly, I drafted a formula o f required information for research that reflected a principle of autonomy. To my surprise there was also distributed at the meeting a more restrictive interpretation o f the minimal requirements. This draft had not been circulated before hand. It was prepared by an oncologist, who was active in clinical research. He and some of the other clinicians were unhappy with my draft. Sound strategy required that it not be the only draft before the committee. There ensued a lively controversy among interested parties, about what a doctor must tell a patient about a research project in order to obtain his participation. The most im portant lesson which I learned from this discussion is that the narrowly philosophic perspective on such practical questions is in its own way as inadequate as the narrowly medical perspective. In my effort to articulate what a research subject ought to be told, I had entirely neglected the equally fundamental problem of who, if anyone, should tell it to him. The proposition that a certain class o f patients should have certain inform ation is consistent with the view that it is not the business o f their doctors to give it to them, and that the legal burden of disclosure is too great an imposition upon physicians and upon their relationship to patients. My error resulted from the actual assumption that the physician is the patient’s only source of information. This assumption pervaded the entire discussion of the rival drafts, which is substantially reconstructed below with all o f its non-sequiturs. Notice that philosophers 20

defend one proposition, clinicians defend another and that no one ever really lays a glove on the opposing point of view. Philosophers: The disclosure which your draft requires for chemotherapy experimentation permits deception. Discouraging inform ation is material to the decision of a reasonable patient with advanced cancer. The process of obtaining informed consent is a mockery, if it excludes all information that would dispose a patient to refuse the experimental treatment in favor of another treatment or no treatment. Clinicians: A patient’s param ount objective in seeking medical treatment is to recover from his disorder. Our duty as physicians is discharged by giving the patient the information that he needs to make the most intelligent choice in pursuit of that objective. It is not incumbent upon us to promote refusals in pursuit o f other objectives. Most of us are forthright when a patient solicits specific information which we know to be discouraging. Moreover, the average candidate for experimental chemotherapy has already consented to and has received aggressive therapies. He has already embarked on the course of taking the most promising therapy. Far from dissuading him, discouraging information will only make him more inclined to submit to what we identify as his best hope. Some of the so called experimental therapies are known to be more effective than are conventional therapies, because they are used regularly in Europe. We are legally prohibited from administering these treatments outside the context of a research protocol. Why must we adopt the uncustomarily frank minimum standard and demoralize our patients in order to obtain access for them to a proven treatment that is the best for the goals they are pursuing? Perhaps the idea of “ research” or “ experiment” conjurs up strange and terrifying visions in your mind. Research subjects tend to receive additional high quality medical care in connection with the careful observations that are part of the research. Sometimes a patient’s sense of isolation is relieved by being part of clinical research. They derive encouragement from progress made by other participants. If by chance they have randomly been assigned to a control group, they derive all of these benefits with none of the risks. Philosophers: Some of this is news to us and much of this is beside the point. Informed consent is im portant, not only as a means of preventing mistreatment or exploitation. It is im portant that a patient have an understanding of the situation that is as adequate as possible so that he may exercise as much control over his life as he will. To be sure, there is a likelihood that he will transfer control to you in the final analysis, but you as custodians of this autonomy may not assume this in advance or attem pt to engineer a certain result through manipulation of a patient’s information base. The Federal guidelines do seem to require a higher level of disclosure than has been the custom in medical treatment. Perhaps it would be better if federal standards governed ordinary treatment as well. The distinction between research and ordinary treatment may be arbitrary at times, but any system that makes use of general rules will occasionally produce arbitrary distinctions. 21

Some of the benefits that you attribute to research participation are more disturbing to us than they are reassuring. If the research subjects get more and better medical attention, can we honestly convey the assurance that non­ participation is not prejudicial? Should it be required that patients share equally in the incidental benefits of the research projects? Has it occurred to you that a failure to be candid about the purpose of research may deprive patients of a valuable psychological benefit to which they are entitled? You are depriving them of the opportunity to appreciate the moral significance of choosing an experimental treatment. The government regulations do not require experimental treatments to be justified only by their potential benefit to the patient-subject. Their potential for yielding socially valuable knowledge can also enter into the justification. Societal benefits do not enter substantially into the justification of clinical research on patients classified as terminally ill. Are patients not entitled to the knowledge and to the satisfaction of knowing that their choice of a more aggressive treatment is expected to contribute to the conquest of cancer? This satisfaction is enhanced if they are given enough information about their prognosis for them to realize that it would be reasonable not to participate. By what medical standard do you determine that this knowledge and satisfaction are worth less than a greater confidence in their own recovery? Patients should not be deprived of the opportunity to be altruistic. Clinicians: We do not recognize an element of altruism in research participation and we never would ask a patient to engage in altruism. The ratio of risks to benefits of an experimental therapy always compares favorably with the ratio o f existing therapies. Philosophers: But only because the anticipated benefits of existing therapies are practically nil or quite small. Why not inform a patient that the most probable benefit to be derived from his treatment is knowledge of whether the treatment works? You say that you are not required as physicians to make a full case for non-treatment. But surely you are under a duty to disclose fully your nontherapeutic intent. Clinicians: The patient is told that the treatment we propose to give him is experimental. Learning and experience have always been a byproduct of treating patients. And experimental treatment differs only in the significance and reliability of the experience for the physician. A patient is not to be considered an altruist because of what his physician learns by treating him, especially if the learning process involves no imposition on a patient. Would a reasonable patient refuse a treatment simply because his physician or someone else might learn something from it that will help others? Physicians have always owed a moral duty to their patients to learn from what they are doing. This duty begins on the first day of medical education and continues throughout their careers. To require “ disclosure” of societal benefits of clinical research is to treat this duty as a dark secret for which we must make apologies. We don’t believe that we need a patient’s permission to learn from doing our work. Philosophers: It is a mistake to conflate the informal learning that is a normal consequence of practicing medicine with the learning to be derived from an 22

experimental protocol. The requirements of scientific validity may involve serious impositions on both patients and physician. For example, the control group that receives a placebo is being deceived and perhaps is being deprived of an effective treatment for the sole purpose of evaluating improvement in the experimental group. Even the patient’s physician may not know whether he is receiving the experimental drug so that the heightened expectations o f the physician do not distort the findings. Surely a patient who is asked to submit to all of this for the sake of scientific validity is entitled to all the information he needs to identify with the goals o f the research and to appreciate his contribution to it. Otherwise he is being used. Clinicians: We disagree. While this identification and appreciation is a desirable goal, the essential purpose of disclosure is to enable a patient to protect his own interests. It is consistent with this purpose for a physician to abridge disclosure when more information might hurt the patient without enhancing his capacity for self-protection. We tell patients that they may be assigned to a control group and that if the experimental treatment proves effective they will eventually be eligible for it, whether or not they participate in the study. This gives them all of the information that an intelligent decision to participate requires. It is reasonable for them to participate, because they may receive the experimental drug sooner than they otherwise might. Has it occurred to you that the goal of patient identification with all research that involves them would create a blizzard of meaningless paper work? Suppose that a researcher wishes to examine the medical records of all patients with a certain disorder, or to examine the blood or urine samples that normally would be taken in the course of their treatment. Must he present himself to each patient and give them enough information to appreciate and identify with his research? How many patients do you think would care and how many would only be puzzled or annoyed? Some research would come to a grinding halt in institutions that adhered to this policy and much research would migrate elsewhere. Philosophers: This is a red herring. The government requirements for informed consent exempt the situations where medical risk is minimal. Surely, disclosure may be abridged where the underlying rights are trivial and full disclosure would be very inconvenient. But abridgement may not be justified on grounds of inconvenience alone. The right of a candidate for experimental cancer chemotherapy to refuse participation or to identify personally with the advancement of medical science is far from trivial. Considerable effort must be made to establish the conditions of the intelligent exercise of these rights. *

*

*

The oncologist’s draft was adopted by a vote of seven to four. Some who waivered probably were persuaded by the oncologist’s strong personal interest and by his extensive personal experience which none of the outsiders were capable of disputing. In retrospect, it is my impression that only two or three o f the majority were opposed in principle to a patient’s knowing about an unfavorable prognosis, and that no one was opposed in principle to a patient’s knowing about 23

non-therapeutic intent. There was a pragmatic objection, that the pain and distress associated with full disclosure was not justified, because very few patients would actually be influenced by the disclosure. But the main objection to full disclosure was the burden which it imposes upon a physician and upon the therapeutic relationship. The responsibility for treating and for presenting the case for non-treatm ent, for assuring and for warning cannot be reposed in the same individual and cannot be imposed upon a single relationship. The lesson for philosophers working in medical centers is that complex problems may falsely appear to be standard philosophic controversies, especially to someone who has been trained mainly to identify and to manage standard philosophic controversies. The philosophic specialty, like any medical specialty, may tend to overlook or underplay the aspects of a problem for which it is not conceptually equipped. The problem of informed consent and clinical research is essentially an engineering problem in the allocation of institutional responsibility. Philosophers have much to contribute to its resolution, particularly in the area of articulating the ethical concerns. The pitfall for philosophers is the tendency to see a complex problem as being exclusively governed by the considerations that they are trained to emphasize.

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REFLECTIONS OF A PHILOSOPHICAL BUREAUCRAT Richard Roelofs, Ph.D. Fellow in Bioethics, Department of Social Medicine, Montefiore Hospital and Medical Center In his introductory essay William Ruddick has described how the Society for Philosophy and Public Affairs (SPPA) set out to establish programs in philosophy and medicine at two m ajor hospital centers in New York City. The initial grant from the New York Council on the Humanities provided for two part-tim e philosopher-residents at Montefiore Hospital and Medical Center (MHMC). Dr. Victor Sidel, Chairman o f the Department of Social Medicine (DSM), made the necessary arrangements for institutional identity, office space, and supporting services. Steven Wasserman and I took up our duties at M ontefiore in September o f 1976. Founded in 1884, Montefiore is a voluntary hospital committed to patient care, teaching and research. Over the years it has expanded and ramified in ways that defy simple description. Some idea of the size and complexity o f the Medical Center may be gathered from the fact that it comprises three geographically separated hospital facilities with a total capacity of 1800 beds, reporting more than 40,000 admissions, 61,000 emergency room visits, and 342,000 outpatient visits during 1977, plus two primary care services reporting a total of 63,395 patients for that same year. Under contract with the City of New York, Montefiore is responsible for the medical program at North Central Bronx Hospital, a new 415 bed municipal facility. Since 1968, also under city contract, the Division of Adolescent Medicine has provided comprehensive medical coverage to children remanded to the city’s juvenile detention center. This very successful program gave rise to a similar one, begun in 1973, to provide comprehensive medical services to a large part o f the population of the city jail on Rikers Island. Clinical facilities at Montefiore include an open heart surgery program that is among the largest in the nation, an active renal dialysis unit closely associated with a m ajor organ transplantation service, and an extensive program for cancer treatment and research. M ontefiore is also widely known for its initiatives in the areas o f community health and social medicine (see the contribution by Victor Sidel to this volume, p. 13). Since 1963 Montefiore Hospital and Medical Center has been the principal voluntary hospital affiliate of the Albert Einstein College of Medicine of Yeshiva University. Graduate physicians from other institutions are also attracted to M ontefiore by its excellent program of house-staff training, which in 1977 involved approximately 500 interns and residents. Although Wasserman and I had access, through the Department of Social Medicine, to certain teaching opportunities at Albert Einstein College of Medicine, we made only a minor commitment of time and energy to this aspect of the program. One reason for this was that to do more would have been improper 25

under the terms o f the grant. But apart from this, we would have found it difficult on account of the geographical separation of the College of Medicine from Montefiore Hospital and the Department of Social Medicine. We therefore found, or were offered, roles within the Hospital itself, in relation to clinical research, clinical care, and hospital policy. This was made easier by the fact that Dr. Sidel had already done much to establish ethical analysis and debate as a legitimate activity within the Hospital. In 1976-77, Wasserman helped to summarize and clarify the standards and procedures o f the Subcommittee on Protection of Hum an Subjects of Research at MHMC. I worked on a number o f issues which had been referred to the Department o f Social Medicine for review and comment, including proposed guidelines for informed consent and refusal of treatment, and FDA regulations covering experimental medical devices. I also represented the Department at meetings of the Bioethics Committee of the Hospital of the Albert Einstein College o f Medicine, and in the spring of 1977 I initiated the process which eventually led to the formation o f an analogous committee at Montefiore. In 1977-78, support for the program was continued by the SPPA under a considerably larger grant from the National Endowment for the Humanities (NEH). Wasserman had begun study for a law degree, but he stayed on as a parttime consultant, working on prison health care issues. I was retained as a full­ time consultant, with appointments as Lecturer in Philosophy in the Department of Community Health, Albert Einstein College of Medicine, and Fellow in Bioethics in the Department o f Social Medicine at Montefiore. The latter appointment, though purely titular, proved highly effective in legitimizing my presence as a philosopher in the clinical setting; the role of a departmental fellow is a familiar one, and if my specialization was a little odd, it was no more peculiar than the preoccupations o f Social Medicine staff in general. I took part in a number of rounds and conferences as a commentator on ethical aspects of difficult cases, and continued research and policy review for my Department, especially in the areas of clinical consent and refusal. After lengthy discussion and negotiation a standing committee on bioethics was established at Montefiore in the spring o f 1978, and I accepted m ajor responsibilities for research and the drafting of position papers as chief of staff to this committee. In the fall o f 1978 the NEH grant came to an end, and Wasserman left the Montefiore program to concentrate on his law degree. I was fortunate enough to secure support for another full-time year. Dr. Sidel secured for me an appointment as a National Research Service Fellow under a grant from the National Institutes o f Health; additional funds were made available through the Department o f Social Medicine from the National Science Foundation and from the Office of the Director, MHM C. During this year I was heavily involved in prison health care issues, planning and helping to conduct law and ethics rounds for health care staff at Rikers Island Prison and at the Spofford Juvenile Detention Center. Work with the Montefiore Bioethics Committee continued, as did rounds and consultations in various departments. Regular fortnightly neonatal ethics rounds were begun with the staff of the Special Care Nursery at North Central Bronx Hospital. 26

In what follows I can only suggest the rich variety of issues and tasks which engaged the philosophers at Montefiore. I shall not attem pt to cover all of them. Elsewhere in this volume, Steven Wasserman has reviewed some of his experiences in working with the Subcommittee on Protection of Human Subjects. The Prison Health Care Project, sponsored by the National Science Foundation, is to be surveyed in a forthcoming anthology o f papers and colloquia edited by Nancy N. Dubler. And the series o f neonatal ethics rounds which have been conducted over the past 18 months at North Central Bronx Hospital was discussed at the April 1980 meeting of the American Pediatric Society and is to be reported in an appropriate journal. My aim in the following sections o f this paper is to provide a closer look at a very few selected aspects of my work at Montefiore, hoping thereby to give the reader a more concrete and lively sense of what it was like to do applied philosophy in a large urban medical center in the late 1970’s, or what it was like for this philosopher, anyhow. First I shall describe three occasions, each o f which was, in its own way, an initiation: my first im portant policy session, my first encounter with conscientious refusal of treatment, my first clinical ethics consultation. I hope to show how these occasions alerted me to new nests of problems and set the direction for so much of my subsequent effort. Finally I shall describe the work o f the Montefiore Hospital Bioethics Committee, which has begun to address at a new level the very issues that so vexed and intrigued me in my first encounters here.

II When I commenced work at Montefiore in the fall o f 1976 a vigorous debate was in progress in the medical literature on the practices of withholding cardiopulmonary resuscitation (CPR) from certain patients who are critically or terminally ill. The American Heart Association had issued standards for CPR which stressed the inappropriateness o f using such techniques in cases where they would only prolong the process of dying. The final decision in Quinlan had only recently been announced, and, despite certain ambiguities, it was widely perceived as providing judicial support for medical discretion in such cases. Articles published in The New England Journal o f Medicine in August of 1976 appeared to describe formal decision procedures for selective withholding of treament in two prestigious Massachusetts hospital centers. At Montefiore, as elsewhere, there were differing opinions as to the circumstances in which it might be appropriate to withhold heroic measures, including CPR. Opinion was also divided as to who should make and review such a decision, and how it should be communicated to all those responsible for the patient’s care. The Director of the Hospital had appointed an ad hoc committee, representing various departments, to discuss the issues and make recommendations to him. One active and concerned member of this committee was my chief, the chairman of the Department of Social Medicine. When I took up my duties, therefore, one of my first tasks was to read through a fat packet of 27

background material and write comments on two draft proposals aimed at setting up at Montefiore a formal procedure for making and reviewing decisions to withhold treatment. Both proposals identified several parties whose rights, duties, interests and convictions might come into conflict around a decision to employ or to withhold CPR or other heroic measures in a particular case. Both advocated the establishment o f a review board with procedures for resolving disagreements among these parties, with the patient represented by an advocate. Both required signed written orders (e.g. “ Do not resuscitate” ) in place o f the oblique hints, informal understandings, or erasable notices frequently employed in hospitals for transmitting such decisions to subordinate staff. The principal difference between the proposals lay in the mechanism for bringing a case before the board; in one version only the responsible physician could call for review, while in the other any of the parties could secure it. I will not linger over the details of the proposals, for in the end neither one of them was adopted. When the ad hoc committee was reconvened in early October to present its report, Dr. Sidel invited me to come along as an observer. The meeting turned out to be very educational. A bright and articulate attorney from the office of the Hospital’s legal counsel was on hand to argue against the proposals. He pointed out that there was at that time neither legislative nor judicial authorization in New York State for any decision to withhold life support or resuscitative measures, and that the Hospital could not establish and acknowledge a formal system for making and reviewing such decisions without running very serious risks of both civil and criminal liability. Although the Administration might indeed elect to take these risks, the attorneys would advise against doing so. Change in the present practice should be effected by some other means. Confronted with this legal opinion, the reformers seemed to lose heart. Their proposals were tabled, and nothing more was heard from them. The ad hoc committee never met again. There were some hard lessons here for the philosopher-in-residence. I had come to this topic concerned about the proper balance o f power among the physician, the patient and patient’s family. I had not seen, or had failed to appreciate, the-ways in which this nice ethical problem is complicated by the organization of medical care and by the hospital’s concern about legal liability, as interpreted by its attorneys. A patient may or may not have a private attending physician. For those that do, there is no assurance that critical care decisions will be made appropriately; anecdotal information suggests that some private physicians may decide to limit treatment without consulting either patient or family in this matter. For patients who do not have a private attending, it is often difficult to specify the individual physician who is making these decisions. In theory, the full-time service attending is responsible, but in practice the patient’s care is in the hands o f a team of interns and residents, many o f whom rotate through the service on a short term basis. In theory, decisions to limit treatment, e.g. by withholding resuscitative measures, should be made only after a great deal is known about the patient; in practice the house staff may feel pressure to make such decisions early, and to use them as a basis for decisions about other sorts of intervention. 28

No matter who makes these decisions, or on what grounds, there is the problem o f communicating them to three shifts of caretakers, as well as to new house staff rotating on to the service. The presumption is that every patient is to be resuscitated; how does one indicate that, for this particular patient, the routine is not to be followed? One can write orders for treatment aimed at preserving life or restoring health, but a written order to withhold treatment is a wholly different sort of performance, and one which may be regarded as foolish and imprudent, if not actually illegal. Yet without written orders, nurses and others on the spot in an emergency cannot be sure o f their responsibilities. And without written orders, mistakes can be made. In more than one hospital, if the tales are at all reliable, newcomers have misread the local signals—check marks, asterisks, or circled minus signs employed to make the covert distinction between patients who are considered salvagable and those who are not. Finally, in addition to taking a larger view of the decision-making process and of the problems of communication in the hospital setting, the philosopher had to understand and take account of the interests o f the institution itself. The tacit and informal practice of making and transmitting ‘no-code’ decisions is not a matter of public knowledge. By issuing formal guidelines, the hospital would be accepting legal responsibility for it. It might indeed appear that a formal system of review and unambiguous written orders would be more defensible in court than any tacit, informal, and ambiguous practice of limiting treatment. But a hospital’s attorneys must consider not only what is appropriate and defensible in law and reason, but also what juries might actually do when swayed by emotional appeals, specious analogies, and invalid arguments. Moreover, since even a successful defense is costly, a hospital’s managers will seek to avoid litigation even if they think that they can win. In the light of all this, it is really no great wonder that the proposals o f the ad hoc committee were not adopted. However, the problem would not go away, and I determined to pursue it. But I had no illusions about doing the job alone. The prior need, as I saw it, was to find some way to institutionalize discussion o f this and similar problems. At about the same time, in the fall o f 1976, Dr. Sidel asked me to take his place at the monthly meetings of the Bioethics Committee at the Hospital of the Albert Einstein College of Medicine. The HAECOM Committee was relatively new, having been formed in December of 1975 as an adjunct to the hospital’s Medical Council. Its members represented all the major departments, e.g. Medicine, Surgery, Anesthesiology, Psychiatry, Nursing, Social Service, plus administrators and faculty from the College of Medicine. Meetings took the form of long luncheons at which two or three cases were discussed, some drawn from the experience of those present and others imported or hypothetical. At the first session I attended, discussion focused on a case involving refusal of treatment on grounds of religious conviction. The patient was a young married woman whom I will call Joanna Bell. It is not necessary to describe her medical problems in detail; suffice it to say that while hospitalized she suffered a serious hemorrhage, and her doctors determined that she should receive a transfusion. But Ms. Bell was a faithful member of the sect o f Jehovah’s Witnesses, and as 29

such was strictly forbidden to take into her body the blood of another living creature. On admission she had carefully written on her general consent form in large letters “ NO BLOOD TRANSFUSION.” Since she was still conscious, her doctors tried to change her mind. They explained that if she didn’t get blood she might well die. Ms. Bell was not moved by these explanations and warnings. Her husband and her pastor were with her at the hospital and they strongly supported her position. She continued to refuse consent for transfusion until she lost consciousness. At this point, with time running out, Ms. Bell’s doctors were faced with an agonizing decision. They could continue to respect her wishes, in which case she would surely die. Or they could find some way to give her blood covertly, so that neither she nor her husband and pastor would have to know what had been done. All of their medical training, as well as their deepest convictions, moved them to cherish and protect life; they were unwilling to let a patient bleed to death when they could so easily prevent it. Such was the depth of their concern that when the hospital’s blood bank director declined to issue blood for transfusion without a documented consent, they were willing to type and match blood from their own veins for Ms. Bell. Somehow the transfusion was accomplished, with patient, husband and pastor none the wiser. The surgical repairs were performed, and the patient made a good recovery. Did the doctors act rightly in saving Ms. Bell’s life by the use of a treatment which she had expressly forbidden? As was only to be expected, opinion was divided on this question. Those who defended the covert transfusion of Ms. Bell appealed to a variety of arguments. Some claimed that her deliberate refusal of life-saving treatment was equivalent to attempted suicide, and that her physicians had no duty to cooperate in such an attem pt or to allow it to succeed. Others appealed to the emergency doctrine: a physician may treat, without consent, an unconscious patient who is in danger of death. Perhaps the most ingenious argument was that, since for Jehovah’s Witnesses the sin consists not in being transfused but in consenting to it, to require a Witness to consent in order to receive a life-saving transfusion is in itself a violation of religious liberty.' The first o f these arguments was obviously fallacious. A suicidal individual wants to die, and does what he can to achieve that end; but Ms. Bell wanted to live, and would have accepted an effective alternate treatment if one had been 1 This argument may be derivative from some remarks of Judge J. Skelly Wright on a similar case: “ 1 was reluctant to press her because of the seriousness o f her condition and because 1 felt that to suggest repeatedly the imminence of death without blood might place a strain on her religious convictions. I asked her whether she would oppose the blood transfusion if the court allowed. She indicated, as best I could make out, that it would then not be her responsibility.” Application o f President and Directors o f Georgetown College, 331 F. 2d 1000 (D.C. Cir.) Certiorari denied 377 U.S. 978 (1964). See also Powell v. Columbia Presbyterian Medical Center, 267 NYS 2d (1965), in which the judge overrode a Witness’ refusal of blood on the grounds that the patient was willing to accept such treatm ent although, because of her religious beliefs, she would not direct it.

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available. The second argument was somewhat more subtle, but equally fallacious. Doctors are authorized to treat patients in emergencies without consent because, in the absence of information to the contrary, consent may be presumed. In Ms. Bell’s case, however, that presumption was conclusively rebutted by her repeated prior refusals. The third argument was that Witnesses are willing to receive blood if only they can avoid formally consenting to receive it, so that in their case “ N o” may be construed as “ Yes.” I had encountered this sort of argument before, as a defense of the claim that there is no such thing as rape, and I was no more impressed by this new version. But I had to admit that I didn’t know exactly what Witnesses were objecting to when they refused to sign consent for blood transfusion, and this led me to do some research into the history and doctrine of the sect. I was glad of this later. At this point I will only say that I learned enough to persuade me that the third argument is also fallacious, that Jehovah’s Witnesses are genuinely opposed to receiving blood, and that when they say “ N o” they generally mean it. All three arguments are, indeed, farfetched and implausible, and this is itself a significant fact. As Laurence T. Wren observes, such arguments are employed only by those who are “ leaning over backwards to justify a means reasonably believed necessary to save life.” 2 My chief, Dr. Sidel, was well aware of my continuing interest in the issue of refusal of treatment in general, and the position of Jehovah’s Witnesses in particular. From the outset he passed on to me everything he came across related to these topics. In this way I came to be involved in the review of new Montefiore guidelines on refusal of blood transfusion, which were circulated for comment. This in turn led to an exchange of memos and conversations with Daniel Schwartz, Associate Director of the Hospital for Legal and Malpractice Affairs. Although there were of course other commentators on the draft, I have reason to think that my response at least contributed to the adm inistration’s decision to withdraw that document and to undertake a comprehensive revision of the policies then in force in the area of consent and refusal. Conversations with Mr. Schwartz continued, and in 1978 he and I collaborated with Dr. Carey Andrews on an article summarizing some of the legal, ethical and medical aspects of surgery for Jehovah’s Witnesses. I turn now to my first clinical ethics consultation. It may serve as a picture of the philosopher called upon to deal, in unaccustomed fashion, with a real case of serious moral conflict requiring an immediate decision. Early in the fall of 1977 I took part in an orientation session for new graduate physicians entering the Residency Program in Social Medicine at Montefiore. My assignment was to describe the resources and programs of the Department of Social Medicine in the area of ethics and hospital policy. In listing resources I mentioned that full-time funding of my position for the current year made it possible for the Department to offer a clinical consultation service in bioethics. I said that I was available at any time to help sort out issues and define alternatives. 2 “ Status o f the Law on Medical and Religious Conflicts in Blood Transfusions,” Arizona Medicine 24 (October, 1976).

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Since these new physicians were to be training in several different departments (e.g. Medicine, Pediatrics, the outpatient clinic) I hoped that the ethics consultation would put me in touch with other house staff and attending physicians in these departments. I also hoped to come up with some interesting cases which could then be scheduled for discussion at ethics rounds or conferences. Some weeks later I received a telephone call from Leo Resnick, one of the physicians who had been present at the orientation. Dr. Resnick was now assigned to an affiliated hospital; he had inherited a difficult case and wanted to discuss it. I was intrigued by his summary, and we agreed to meet within the hour to review the patient’s record. I took advantage of the delay to glance at the appropriate sections of the Montefiore Hospital Administrative Procedures Manual, to skim parts of George A nnas’ handbook The Rights o f Hospital Patients, and to confer briefly with the Department of Social Medicine’s consulting attorney. I met Dr. Resnick on one of the upper floors of the affiliated hospital and we went over the chart. This patient, Dora Klein, was an elderly widow with no surviving relatives closer than a sister-in-law. Almost a month earlier she had been picked up at her home by an ambulance summoned by a neighbor who thought that Ms. Klein was acting confused. She was taken first to another hospital in the Bronx, and subsequently transferred for reasons which were unclear on the record. On admission the examining physician found signs of congestive heart failure, and she was placed on medication for this problem. It also turned out that Ms. Klein had undergone a mastectomy some two years previously, and there were new cancer nodules cropping up in the area of the scar. The initial workup, including brain and liver scans which appeared to rule out any metastasis o f the cancer to these organs, took about a week. Looking at the results, the medical team agreed that a test should be run to determine whether the cancer might respond to hormone therapy. Ms. Klein was not really sick enough, at this point, to require hospitalization; if both o f her major problems could be controlled by regular self-medication, she could be sent home. But Ms. Klein now refused to allow the biopsy which would take a tiny test sample of tissue from her scar. She also began refusing the medicine prescribed for her heart condition. It was for these reasons that she received her first psychiatric evaluation, eleven days after having been admitted for disorientation and confusion. The psychiatrist concluded that Ms. Klein’s refusal was based on mild paranoia and fear of her illness, that she was lonely and depressed, with thoughts of suicide, and that she needed someone to talk to. He entered in the chart a diagnosis of organic mental syndrome with impaired judgm ent and depression. Apparently he thought that on the basis of this diagnosis it was appropriate to recommend that a hospital administrator be called to sign the consent form for the biopsy. However, no action was taken for another four days, during which time Ms. Klein continued to refuse medication for her heart and spoke more openly of her wish to die. On the fifteenth day of her hospitalization she was again seen by a psychiatrist. During this interview she disclaimed any suicidal intent, explaining that she only talked that way in order to frighten the doctors. 32

She said that she felt she was in some sort of prison, and she dwelt on the happier days of her youth. The chart record is sketchy at this point, and it is very difficult to reconstruct the behavioral context of these remarks. At any rate, the psychiatrist’s diagnosis now was that Ms. Klein was disoriented and delusional, with impaired judgm ent and memory; he recommended that someone be found to help orient her. The drug was started, but apparently she continued to refuse the biopsy. Here matters stood when the new team of graduate physicians rotated on to the service and Leo Resnick inherited the case. Dr. Resnick was concerned about Ms. Klein’s deteriorating condition, but he was reluctant to proceed with the biopsy in the face o f her repeated, adamant, and well-documented refusals. I supported him in this. M ontefiore’s procedural guidelines at that time permitted minor biopsies to be performed without a signed consent form, but this meant only that verbal or implied consent would suffice; it was not a license to do a biopsy on a patient who had expicitly refused or on one who was actively resisting. Nor could the psychiatric diagnosis of mental incapacity be taken as authorizing the medical team to do anything to Ms. Klein against her will. We then discussed the potential benefits o f doing the biopsy. The medical team stood to gain from the assurance that they had done all that they might be expected to do for Ms. Klein on her current admission. But what did Ms. Klein stand to gain? There was good reason to predict that even if her cancer could be controlled by estrogen pills, she would refuse to take them. Forcing the biopsy on her would not improve her situation, and could only be perceived as a gratuitous assault. In the end Dr. Resnick and I agreed that, despite the diagnosis of mental incapacity, it would be inappropriate to do the biopsy over Ms. Klein’s strenuous objections. We agreed that although she was indeed a crotchety and unrewarding patient, with only a partial and intermittent awareness of her surroundings, some further effort should be made to communicate with her and, if possible, to win her cooperation. But who could succeed at this? She scorned and distrusted the young doctors who were trying to help her, and her sister-in-law, who might have served as an intermediary, was herself consumed by doubts as to what should be done and how much responsibility she should assume. Was there any physician outside of the Hospital who might be able to reach and persuade Ms. Klein? Whom had she consulted about her cancer two years ago? He turned out to be a surgeon in private practice elsewhere in the Bronx, and Dr. Resnick described the situation to him on the telephone: I pointed out that Ms. Klein was becoming increasingly disoriented and uncooperative in the hospital setting. We felt that the only way this woman would ever be willing to accept what the health care system had to offer her was in more familiar hands and more familiar surroundings. And I asked if he would be willing to follow her as an outpatient, and then, if he decided as her physician that it was appropriate, to biopsy her and to do the estrogen receptor tests and estrogen therapy. I asked him if he were willing to take that one, and he said he would do that. He said that it would be all right.

Ms. Klein was accordingly discharged on the twenty-ninth day of her hospitalization, without the biopsy. We later learned that the surgeon had seen her at his office, but that she had continued to decline further diagnosis and treatment. She died at home of heart failure several weeks after her discharge from the hospital. What did we learn from the case of Ms. Klein? In reviewing the case several months later, with the assistance o f an attorney, we arrived at something like the following analysis. On any clinical service there is pressure on house staff to discharge patients who do not really need hospital care. But it is im portant to doctors that patients benefit, if possible, from even the briefest encounters. Moreover, it could appear unprofessional, and perhaps reckless, to discharge a patient without having done everything that is medically indicated. Should the patient refuse to cooperate, the doctors are caught in a double bind from which they may seek to escape by securing authorization to override the patient’s refusal. And although the only legally proper way to accomplish this is through a court hearing and the appointment of a guardian for the patient, as a practical matter it often seems safe enough (and far less trouble) to proceed on the basis of a psychiatric diagnosis of mental incapacity. Psychiatric consultation may then be resorted to simply for the purpose of reducing legal risks. The consultant’s diagnosis fulfills its purpose in being recorded, and his other skills are not called upon. The case of Ms. Klein therefore raises not only the old familiar questions about the paternalistic use of medical power, but also some new questions about the possible misuse or abuse of the consultative relationship between the psychiatrist and the medical team. Since we felt that these matters deserved a wider hearing, we actively sought opportunities to discuss them. In the following months Dr. Resnick presented the case at rounds in the Montefiore Department of Medicine, and again at rounds in the Department o f Psychiatry. On each occasion I was one of the commentators, together with the DSM consulting attorney and a member o f the host department. These early ethics sessions in the familiar case rounds format opened the way for many more of the same sort in the clinical training program. One final note'should be added to round off this account. In the spring of 1978 Leo Resnick had to decide on a topic for his two-year research project in Social Medicine. He chose to collect data on the management of the mentally incapacitated patient in the general hospital, and he asked me to serve as one of his preceptors. When complete, the study will provide a profile of nearly one hundred patients for whom emergency psychiatric consultations were called in the course of a nine-month period. It will also indicate whether, and in what ways, these psychiatric consultations affected the patients’ care.

Ill By December of 1976, some four months into the job, I had come to believe that it would be useful to have a standing committee on bioethics at Montefiore 34

Hospital. I had learned a great deal from my observation of the Einstein committee, but I did not intend simply to replicate it; I visualized a somewhat different sort of committee, adapted to the special conditions and opportunities of the Montefiore setting. I hoped for a committee which would be able to work with Montefiore administrators in the formation and evaluation of hospital policy. I hoped for a committee whose members would take on clearly defined responsibilities for bioethics issues in M ontefiore’s huge clinical training program. There was need, as well, for some regular forum, open to the hospital community at large, in which significant questions of law and ethics in medicine might be discussed; I hoped the committee could be instrumental in establishing such a program. Finally, I hoped that a bioethics committee might enhance the credibility and effectiveness of the philosophers in residence at Montefiore, not least because it could provide a network o f natural and informal contacts with many different clinical departments. In order to check my perceptions and to anticipate objections, I discussed these thoughts with my chief, Dr. Sidel, and with Mr. Schwartz. Then on February 1, 1977, I addressed a memorandum to Dr. David Kindig, Director of the Montefiore Hospital and Medical Center, proposing the establishment of a bioethics committee designed to meet the needs described above. The proposal was accompanied by supporting memos from Dr. Sidel and Mr. Schwartz. The subsequent process of administrative consideration and approval was a lengthy one. Dan Schwartz was asked to observe and report on a session of the Einstein committee, but this could not be arranged earlier than the April meeting. By the middle of May I had concluded that administrative approval, if it came, would come too late. Funding from the New York Council for the Humanities in support of the philosophers at Montefiore was to terminate on June 30th, and I turned my attention to tasks which could be brought to completion by that time. On June 17th, word reached me that my proposal had been approved in principle, and that I should proceed to draft a charter for the committee; I was forced to reply that the time remaining was too short, but that I hoped to pursue the matter in the fall. Such are the vexations and perils of year-to-year funding, and the story might well have ended here if the National Endowment for the Humanities had not agreed to support the Montefiore project in 1977-1978.1 was able to return to the job in September with hope and trust renewed, and on the 15th I sent the following memorandum to Dan Schwartz for transmission to the Director: The following are my suggestions for implementing the proposal made in my memo of 2/1/77, in the light of discussions since that time. 1. It is suggested that the Director, MHMC, appoint a committee to be called the Montefiore Bioethics Committee (or similar title to the same effect). 2. It is suggested that the assignment of this Committee be as follows: a. The committee will address itself to general policy questions of an 35

ethical and legal nature, which arise out of medical practice, hospital and clinic administration, or legislative, judicial and regulatory impact on the provision of health care. The Committee will gather inform ation, formulate options, and attempt to develop areas of consensus on these questions. b. The Committee will report to the Director at least twice a year, summarizing its proceedings and making recommendations within the scope of its responsibility. c. The Committee will report to the Director in October, 1978, evaluating the year’s experience and making suggestions as to the modification or termination of its assignment. 3. It is im portant to note that the Bioethics Committee would not compete with or replace existing committees or subcommittees dealing with certain special questions of ethics or the assessment of care, e.g., review of proposed research involving human subjects, departmental audits, problems of professional discipline. Nor is it contemplated that the Committee would operate as the kind of “ ethics committee” recommended by Justice Hughes in his Quinlan opinion, i.e., as a committee to advise and support the physician in the management of difficult terminal cases. The sorts of issues which might properly come before the Bioethics Committee are exemplified by the following (some o f them dealt with by ad hoc committees within the past year): a. Should MHM C establish a mechanism for review of terminal cases and setting guidelines for orders not to resuscitate? b. What guidelines should MHMC establish for handling selective conscientious objection to medical treatment on the part of competent adult patients? For cases when competent adult patients, having originally refused consent, are now unconscious and a relative is willing to give consent? For cases in which persons responsible for incompetent adults or minors refuse consent on their behalf? c. What should be the hospital’s response to announcements of proposed regulatory guidelines, e.g., FDA regulations governing experimental medical devices, which appear to place excessive penalties for failure to comply? d. Are present practices in obtaining autopsy consent consistent with developing ethical and legal guidelines for securing valid consent? How, in this context, can the values of teaching and research best be balanced against the values of the individual’s sovereignty over his own body and the sensitivities o f the family of the deceased? 4. It is suggested that a maximum of 18 Committee members be appointed, representing a wide range of hospital constituencies: a. Full-time M .D .’s from such departments as Medicine, Neurology, Oncology, Pathology, Pediatrics, Social Medicine. 36

b. c. d. e. f. g.

Voluntary attending staff. Nursing staff. Social Service an d /o r Patient Advocate. Allied health care workers, e.g., Physical Therapy. Administration an d /o r Hospital legal counsel. Staff of outreach services, e.g., Martin Luther King Health Center, Beth Abraham Hospital, Spofford Juvenile Center. It is suggested that appointments be for one year in this initial trial period, and that the Director appoint one member to act as Chairman of the Committee. 5. In my judgement the Committee on Bioethics will be more effective if the Chairman is able to delegate responsibility for research, writing of position papers, preparation of records, follow-through on recommendations, etc. It is therefore suggested that the Committee provide for a small staff, to consist of: a. One person with legal training, e.g., Nancy Dubler. b. One person with training in ethical analysis, e.g., Richard Roelofs. c. One person with training and experience in hospital administration, e.g., one of the administrative residents. It is anticipated that these people can be found in existing positions within M HM C, and that their part-tim e services to the Bioethics Committee could be donated, at least for the initial year. 6. As to the form at, it is suggests that the Committee meet monthly in regular sessions for W i - 2 hours. Agenda for these sessions would be determined by the Chairman, presumably in response to requests from the Director or on topics proposed by members or staff. Staff might be expected to meet monthly with the Chairman for Vi -1 hour, and further among themselves as necessary to carry out their assignments. I think it would be very valuable if the Committee could find the means to sponsor two or three lectures, workshops or seminars in the course of the year, open to the wider hospital community. 7. It is suggested that regular meetings be open to the following in addition to members of the Committee: a. The Director, MHMC, or his deputy. b. Committee staff. c. Chief residents during their terms of service at MH. d. Heads of medical and nursing education affiliated with MHMC (e.g., Director of Nursing Education at Lehman, Dean at AECOM). e. Others at the invitation of the Chairman (including persons invited by members with the concurrence o f the Chairman).

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8. Budgetary considerations are scarcely worth mentioning at this point, but may become significant in future. The items are: a. Staff (donated time in 1977-1978) b. Secretarial (Presumably handled through the office o f the person serving as Chairman. At some point we may have to examine the presumption that the member chosen as Chairm an will be a member who has a secretary.) c. Office supplies and copying: This might be as much as $500.00. d. Special lecturers, workshop leaders: $1500.00 (Contingent on raising these funds from outside sources.) This memorandum also was discussed in advance with the chairman of my host departm ent, Dr. Victor Sidel, and supported by his covering memo. Within a few days it went forward from Mr. Schwartz to the Office of the Director, with an additional memo recommending that it be approved and that a panel be convened to develop a list o f qualified nominees. Here again the response was long delayed. The administration was making preparations against the possibility of a strike by hospital employees, and normal routines were disrupted. Approval of the charter was at last received in mid-November, and the nominating panel was convened on the 28th, ten months after the initial floating of the proposal. The nominating panel recommended a slate of 13 members, three of whom were drawn from the Department o f Medicine, two from Pediatrics, and one each from Psychiatry, Oncology, Surgery, Social Medicine, Cardiac Research, Neurology, and Patient Representatives (now renamed the Department of Patient Interest). Administration was to b^ represented by Dan Schwartz. Three other nominations were left open, to be filled after consultation with the Director of Nursing, the chairman of the Department o f Social Service, and the president of the House Staff. The panel’s recommendations were forwarded to the Office of the Director in early December, but soon thereafter, the holidays intervened, and it was not until early February that Dr. Bennett Rosner (Psychiatry) was asked to serve as chairman of the Montefiore Hospital Bioethics Committee and to invite the other nominees to become members. Letters of invitation went out in mid-February. The nominating panel had aimed high, hoping to assemble a group of clinicians whose opinions would carry weight in their respective departments. Most of the nominees were already very busy people, and the panel had feared that some would decline the invitation on the grounds that they could not spare the time and effort. To the astonishment o f nearly everyone involved, all the invitations were promptly accepted. The Committee held its first meeting on April 3, 1978. Over the following two years o f its existence the Montefiore Bioethics Committee has operated pretty much in accordance with the original proposal. This is due in part to the fact that the original proposal was not highly detailed; such matters as the size of a quorum and the method of making and recording decisions were left, along with much else, for the Committee to decide as it saw fit. It may also be the case that the press of urgent business has prevented the Committee from attending to its own structure and powers in any but the most brief and episodic fashion. Some minor modifications have been made, however. 38

In view of scheduling conflicts which made it difficult for the House Staff representative to attend, the number of regular members in this category has been increased to two, in hopes that at least one will be available for any given meeting. Members have expressed concern about the top-heavy ratio o f M .D .’s to other health professionals on the Committee, and among other remedies steps are being taken to enlarge representation from the Department o f Nursing. The Committee has not as yet sponsored any programs on bioethical issues open to the general Hospital community, but it appears that action on this has only been postponed. Probably the most im portant difference between the Committee in operation and the original proposal is in the area of funding. The Committee continued to depend on donated staff time, and most other expenses have been borne by the Department of Psychiatry. During the period in which the proposal for a bioethics committee was being considered by the Office of the Director, the M ontefiore guidelines on consent and refusal of treatment were coming under criticism from clinicians, administrators, and Hospital Counsel. A review o f some of these guidelines, now obsolete, may suggest some of the reasons for concern. One list, most recently revised in 1974, included blood transfusion and lumbar puncture as procedures which “ do not require specific consent.” There was, however, an elaborate form to be used in case blood transfusion was refused. This form for documenting refusal of blood, last revised in 1968, provided space for substituted refusals by parents or guardians of minors or incompetents; the corresponding guideline on refusal of blood, however, made no reference at all to the form. There were guidelines, last revised in 1969, entitled “ Refusal of Treatment” , but these covered only cases of substituted refusal. Cases in which a competent adult patient might refuse life-saving treatment other than blood transfusion were not discussed at all. The guidelines then in force were also criticized for permitting too facile use o f “ medical certification” of incompetency as a substitute for a full judicial hearing, thus giving the medical team excessive power in dealing with recalcitrant patients. For these and other reasons having to do with legal liabilities and moral concerns, the Office of the Director scheduled a revision of the relevant sections of the Hospital’s manual of administrative policies and procedues, and a proposed new draft was circulated in March o f 1978. At the Department o f Social Medicine it fell to me, and to our consulting attorney, Nancy Dubler, to review and comment on the new draft guidelines for consent and refusal o f treatment. Our responses went directly to the junior administrator responsible for carrying through the revision, and whatever the outcome o f the process, we had been given the opportunity to speak our piece. But we felt that the new Bioethics Committee should also be involved in the review. I was convinced that the Committee would have to assert itself strongly from the beginning and insist on doing its proper work. No task could be more appropriate to it than the reappraisal o f the Hospital’s guidelines on consent and refusal. Moreover, the Committee’s contribution to the review process would be unique in embodying the consensus reached after extended discussion among clinicians representing diverse opinions and interests. I was well aware that this contribution would only be advisory, and that the final version o f the guidelines would be written by the administration. Nevertheless, I hoped that the Bioethics

Committee would have the opportunity to consider the draft and compose a response. Fortunately the Committee chairman, Dr. Rosner, was able to secure from the Office of the Director a commitment to hold up the final revision o f the guidelines for a period o f several months. But the clock was running. The Bioethics Committee had now to organize itself, inform itself on the issues of consent and refusal, examine the new draft guidelines, and submit its report by the end of July. I cannot here provide anything like a full account of the Committee’s deliberations over the next three months. It must suffice to say that the complexity of the draft guidelines required the division of the Committee into several working groups whose findings were presented to the full Committee and synthesized in the final report. That report is also difficult to summarize, but it may be useful to mention some of the Committee’s main concerns. First, it was observed that through years of successive revision, the H ospital’s guidelines on consent and refusal had become a patchwork of fragmentary and inconsistent rules, formulated in several different vocabularies and embodying diverse and sometimes obsolescent legal theories. The Committee recommended a complete rewriting and recodification of the guidelines, rather than the proposed piecemeal repairs. Second, the Committee was hopeful that the new guidelines would clarify certain distinctions which had been obscured in earlier versions. Adequate guidelines would mark the difference between mental incapacity and legal incompetence, for example, as well as the difference between valid consent (which authorizes touching and invasive treatment) and mere permission (which serves principally to forestall litigation). Confusion on these matters perpetuates many myths, e.g., that the spouse or adult child o f an incapacitated patient is somehow entitled, by virtue of the relationship alone, to make decisions concerning the level o f the patient’s care. Third, the Committee addressed itself to the question o f communication with patients who are too young, or too ill, fully to understand and consent to their treatment; such patients may have the right to be informed though they cannot validly consent. On these and many other points the Committee attempted to appraise the draft guidelines and to make constructive suggestions for revision. Its report, of whch I was the principal author, was submitted to the Office o f the Director on July 31, 1978. How did the Com mittee’s recommendations fare in the final revision of the guidelines? The outcome was neither all that we had hoped nor as bad as we might have feared. Working against deadlines of their own, the administrators whose task it was to prepare the revised text made a number of im portant changes in the substance and language of the guidelines, but did not attempt the major overhaul we had suggested. This may have been due, in part, to the form in which the Committee’s report was submitted. At about the midpoint of its discussions the Committee had to decide whether to submit a series of critical comments on the draft or to formulate model guidelines embodying its positive recommendations. The latter seemed the better course, but it might also appear presumptuous; it was felt that the formulation of the language of the revised guidelines had already been assigned to others, and the role o f the Committee was

only to advise and to recommend. The final report took the form of an outline of the recommended model, with remarks on each section which said, but did not presume to show, how that section might be written. I now think this was overcautious. A straightforward model document would probably have been perfectly acceptable to the administrators concerned, and I am now convinced that it would have been far more helpful to them. The next item on the agenda of the Montefiore Hospital Bioethics Committee was to have been an examination o f the practice of selectively limiting medical intervention in cases where the outlook is hopeless or the quality of life extremely poor. But in April of 1979, as we were about to move from a survey of reported cases to the writing of a position paper, discussion was suspended so that the Committee could deal with a very troubling incident in which a patient had been transfused against her will. The Director of the Hospital, who had been compelled under a court order to provide the transfusion, had referred the case to the Committee for comment and advice as to how such incidents might be avoided in the future. Although most of the facts concerning the medical aspects o f this case are now a matter o f public record, there is no need to use the patient’s real name here; I will call her Rita Martinez. Ms. Martinez was twenty years old when she was admitted to the Hospital in the last week o f March, 1979. Previously in good health, she had developed a kidney problem which puzzled her doctors. She was willing to cooperate with the medical team in every respect save one: she stated that she was a member of Jehovah’s Witnesses and would in no circumstances consent to blood transfusion. Her mother and other family members spoken to supported her in this refusal. The physicians caring for Ms. Martinez respected her wishes, although this created problems in diagnosing and treating her condition. She needed blood transfusion to counter the severe anemia associated with her kidney failure; artificial blood extenders such as dextran and Ringer’s lactate would not suffice. Effective diagnosis required a kidney biopsy, but with transfusion unavailable to deal with possible complications, the risks of this procedure were judged to be unacceptably high. The medical team therefore fell back on efforts to persuade Ms. Martinez to change her mind. When these efforts met firm resistance, and the patient continued to deteriorate, her doctors began to face the fact that honoring her refusal might well end in her death. On April 6th I was invited to join one of the staff conferences on Ms. Martinez. It was a painful session for all of us. Several of the doctors expressed their frustration and dismay over the restrictions imposed by this patient on their best efforts to save her life. She was young, intelligent, and seemed to have a promising future. Why should she be allowed to throw it all away? Could she, even at twenty, make a decision of this magnitude? W hat was the basis o f her opposition to accepting blood? When it was my turn to speak I said that although in my opinion Ms. Martinez was mistaken in her moral beliefs about blood transfusion, I could not find in the facts before us any justification for giving her blood without her consent. She was only twenty, but eighteen is the legal age for consent to medical treatment in New 41

York State, and although it might be argued that the threshold o f maturity should be higher for refusal than for consent, the law is silent on this point. If we had any good reason to believe that the patient was immature or incapacitated, it would be possible to seek a court order for the appointment of a guardian to authorize transfusion, regardless of protests from relatives. But the only evidence that could be cited in support o f the view that Ms. Martinez was incapable of making an intelligent and mature decision to refuse life-saving treatment was that she had refused it on religious grounds, and this was surely insufficient. The position o f Jehovah’s Witnesses on blood transfusion, as I was now able to explain, is solidly rooted in the Judaeo-Christian tradition, and although it may look odd, it is scarcely more peculiar than the Orthodox Jewish dietary scruples or the Quaker pacifism to which it is akin. A literal reading o f certain scriptures leads Witnesses to regard blood as symbolic of, if not identical with, the life of a man or animal. The Biblical Commandment against “ partaking” of blood is observed as a dietary rule, and is extended to prohibit the taking of blood into the body by any means, including transfusion. In one sense the commandment is arbitrary: God might have assigned this life-significant function to the heart rather than to the blood, in which case, presumably, Witnesses would object to transplants but not to transfusions. But the commandment is not pointless: According to the official doctrine of Jehovah’s Witnesses, life (whether our own or that of another creature) belongs to God; it is not something we may appropriate and use for our own purposes as we see fit. Obedience in this m atter of blood transfusion thus expresses beliefs and attitudes which are fundamental to the Witnesses’ religious understanding of their place in the scheme of things. The conference ended with general agreement that the medical team would continue to respect the patient’s conscientious position with regard to blood transfusion, although the prospects for her survival under this limitation seemed remote. I took the position that the diagnostic biopsy should be done, since it might suggest an effective treatment and could hardly make the situation worse, but I had to defer to the doctors’ judgment that this would be inappropriate. My last question had to do with documentation: Ms. Martinez had refused to sign the form o f consent for blood transfusion, and her refusal had been noted in her chart on several occasions. But had she been given the opportunity to sign and file the form provided for recording refusal of treatment, in accordance with the revised administrative guidelines issued the preceding August? It turned out that she had not. It was agreed that she would be given the opportunity to sign the form, with the understanding that the team was by no means resigned to the situation and would continue efforts to change her mind. Rita Martinez did not change her mind, and her condition grew steadily worse. On or about April 9th she was transferred to the Intensive Care Unit, and a new team of doctors took charge. The debate over whether to override her refusal was now reopened. Her blood count was dangerously low, and she was beginning to have respiratory problems. If her life could be saved, blood would have to be given to her soon. The conflict was acute, but the responsible physician, Dr. Frederick Vanderhart, resolved it in favor o f the patient’s autonomy. Noting the 42

record of her repeated objections, and the signed refusal form executed in accordance with the Hospital’s administrative procedures, Dr. Vanderhart set aside the option of transfusing this patient against her will, and determined to address her problems by alternative means which would, in the nature o f the case, be largely palliative. Ms. Martinez was intubated and placed on a respirator. She was given a muscle relaxant which left her conscious but unable to move, plus a low level of sedation to reduce her anxiety. Another attem pt was made on April 12th to see whether Rita Martinez would consent to transfusion. Injections were given to reverse the effects of the muscle relaxant and sedative. Ms. Martinez was told that she would die if she did not receive blood, and she was asked whether she would consent. The endotracheal tube made it impossible for her to speak, but, clutching her throat, she shook her head from side to side: No. At some point during the week the patient’s father, Julio Martinez, appeared at the Hospital and was appraised o f his daughter’s condition. He had not previously been involved in any o f the discussions, having been separated from his wife for some years and apparently out o f touch with the family. He was not a Jehovah’s Witness, and he did not at all agree with the position taken by his daughter. He insisted the doctors proceed with a blood transfusion for Rita, regardless o f her documented refusals. Getting no satisfaction from Dr. Vanderhart, he decided to take the matter to court. Late on the afternoon of April 13th the Hospital’s administrators and attorneys learned that some sort of legal proceeding was imminent. They generally discounted the possibility that anything would come of Mr. M artinez’ attem pt to override his daughter’s decision. All the precedents were against it. But around 7:00 p.m. on that same day, at an ex parte hearing where only Mr. Martinez was represented by counsel, an order was issued appointing the Director of the Hospital as temporary guardian of Rita Martinez, with authority to consent to medical treatment and diagnostic procedures, and specifically the use of blood and its components, so as to preserve her health and well being.3 The order was returnable on the following Monday; that is to say, the Hospital could go into court at that time to argue against Mr. Martinez’ petition and perhaps succeed in having it dismissed. But meanwhile the Director had scarcely any choice but to comply. The patient’s blood volume had dropped to about 10% of normal, and it was becoming difficult to supply her tissues with oxygen, even with the respirator. She might well die before her case could be argued. Accordingly, she was given five units o f blood over the next 48 hours. I do not know whether she was conscious when this was done. On Monday, April 16th, Mr. Martinez’ petition was argued before a different judge, and it was dismissed on two grounds. The Court said, first, that absent ’ In an ex parte proceeding one party who fears impending harm may petition the court to issue an order which will maintain the status quo until arguments can be prepared and both sides can be heard. In such cases as this one, however, there is no way to maintain the status quo. As Judge J. Skelly Wright pointed out (loc. cit.J, if the court does not order the transfusion, the death o f the patient may well render the issue moot before arguments can be heard. On the other hand, if the transfusion is ordered, the patient’s right to refuse may be vindicated after it has already been violated.

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proof o f incompetency the State would not intervene to impose medical treatment on an adult who had conscientiously refused it. Second, the Court ruled that since Rita Martinez had already received blood transfusions and for the time being required no more, it was not now necessary to vest in anyone the authority to consent to them on her behalf. If she should need blood in future, said the Court, another hearing might have to be held to establish the religious basis o f her refusal and her capacity to understand its consequences. No further legal action was ever taken, however. Rita Martinez remained in a moribund condition despite the transfusions, and she died not long after the events I have described. This was the case referred to the Bioethics Committee, on very short notice, at its evening meeting April 16th. This session, and the one following it in May, were devoted to discussion of it, and I think it may be worthwhile to describe the process which was followed. The first meeting was essentially an attem pt to reconstruct the sequence o f events. The second was concerned with formulating comments and recommendations to be forwarded to the Director. Between the two meetings the Committee chairman and I held a debriefing with some o f the physicians who had been responsible for Rita Martinez prior to her transfer to the ICU. We also discussed some o f the issues with two representatives from the Jehovah’s Witnesses administrative headquarters in Brooklyn, New York. The initial report from the Bioethics Committee to the Director surveyed the problems posed by cases o f this kind, and noted some o f the particularly troubling aspects of the present case; it also offered some suggestions based on the Committee’s reflection. Since this report is a good example o f how such a committee can respond helpfully to an administrative request for advice and counsel, I feel justified in quoting extensively from it here.* Issues Implied in this Type of Case The right to refuse consent for treatment is well documented by law and clearly outlined in the hospital’s administrative guidelines. More particularly we have specific experience and practice o f respecting this right in cases involving Jehovah’s Witnesses. The Committee discussed at length, however, the fact that factual issues o f law, ethics and our hospital guidelines and practices are not well known to many of our professional staff. In addition, it must be acknowledged that many of our professional staff may not, in good conscience, totally agree with such guidelines. Another im portant m atter is that in our role as a major training center many o f our professionals are either inexperienced with the dilemmas presented by such a patient an d /o r find themselves in a process of evolution with respect to their own conscience and standards in such matters. Multiple caretakers in a medically complicated case with transfers of responsibility to new “ captains of the ship” are common situations in a hospital 4 The report was prepared immediately following the April 16th meeting of the Committee, and submitted to the Director on the 18th. It was based on summaries of the discussion and on the position paper prepared by the staff. The final language and organization is due to the chairman of the Committee, Dr. Bennett Rosner.

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such as ours. No matter how thoroughly a particular team of treating professionals may have thought through their management plan and communicated it to a new team of caretakers, the new people, faced acutely with a case, will inevitably have to rethink and reassimilate the issues. In addition, without the perspective of having known, worked and spoken with a conscious patient over a period of time, whatever gets communicated cannot carry the same force o f meaning. The Committee discussed at length many of the psychological ramifications of both an intrapsychic and interpersonal nature which are generated by such cases. Professionals trained and equipped with a medical armamentarium geared to treat, are inordinately conflicted when they are confronted with such a moral and ethical dilemma where the respect of patient’s wishes may lead to death. In such a climate many complicated analogies get raised to attem pt to rationalize conclusions and behaviors. A few o f these that have been expressed are such issues as to whether a patient is “ competent” or has been “ brainwashed” or is expressing a “ suicidal equivalent,” etc. In addition, guilt by professional staff, whatever an individual’s final decision of what is personally felt to be a correct course o f action, will often lead to anger and recrimination against others as a way of externalizing an internal conflict. Such an emotional burden can only be lessened over time by a process of discussion, reflection and “ working through” the feelings which are evoked. A final issue in such cases is the possibility o f an unexpected outside legal intervention which overrides any considerations or actions o f staff within the hospital. This possibility creates an additional burden on the decisions and management carried out by staff. Specifics of the Present Case with Regard to These Issues This case is extremely interesting in that almost every element possible to foster ambivalence and potential complication is present. The patient is young and barely past her age of majority. The ambivalence o f staff can only be heightened by the knowledge that if she were only a few years younger, an entirely opposite course o f action o f seeking the appointm ent o f a guardian o f a minor might seriously have been considered. The patient has an unknown disease, possibly treatable if more vigorous diagnostic and therapeutic intervention were allowed. The patient has parents of opposite persuasion with regard to whether she should be treated. A transfer of caretaking physicians is undertaken as she becomes more unresponsive and therefore unable to personally direct her care by people who have not known her. A court ordered intervention is sought unexpectedly on the eve of a holiday weekend, with almost no time available to respond. Outline of Preliminary Suggestions Prompted by this Case 1) The dissemination of factual inform ation regarding established law and hospital guidelines and practices is necessary. Such an educational effort should be broad and ongoing. 45

2) When a m ajor change of caretakers of such a patient can be anticipated, preparation for the change as far in advance as possible should be sought to allow for an easier transition. Anticipated professional staff should be brought into the case well in advance of transfer. 3) No am ount of factual guidelines or preparation by transmittal of information can mitigate the tension and emotional conflict raised by such cases. There is a need for ongoing meetings, such as available in some settings by the input o f Liason Psychiatry, as an effort to allow for the working through and acceptance and resolution of conflicting feelings. 4) Cases such as this one which present loaded with such overwhelming potential for ethical and legal complications should be brought to the attention of all concerned as soon as it is clear that this potential exists. There should be discussions in advance of plans for actions to be taken for all potential problems which can be anticipated. The Committee will expand on these suggestions after further discussion. We feel there is a basis for the development of a wider understanding o f these issues in the hospital community as well as potential for the development o f a more effective process for their management. In a subsequent report to the Director the Committee reaffirmed the H ospital’s guidelines upholding the adult patient’s right to refuse treatment. We said that we shared Dr. Kindig’s distress at having been compelled to order blood transfusion for Rita Martinez against her will. We suggested that the order appointing him as guardian and directing that blood be given raised doubts as to the willingness of the judiciary to protect the right o f competent adult patients5 and created uncertainty as to how the Hospital should proceed in future cases o f this kind. Finally, we recommended that the Director write to the administrative judge of the Bronx Supreme Court, bringing the matter to his attention and asking his advice. It was expected that, through this and other initiatives, we might move toward further discussions among physicians, hospital administrators, judges and attorneys, aimed at clarifying a number of issues of medical ethics and law. This whole incident was a very troublesome one for those involved and it generated a great deal o f conflict, rum or and recrimination. Having sifted the reports, members of the Committee were in a position to correct some of the most egregious misunderstandings. I was impressed by the members’ near unanimity on the question o f the patient’s right to refuse; I believe that this was the result of their having worked together during the previous year on the general guidelines for consent and refusal. And it seems to me that the Committee in this instance served the Director well by assembling the facts, formulating the issues, and presenting options. At this writing it remains to be seen whether the brave but 5 This is a serious concern. Many on the Committee would agree with the comment o f Laurence T. Wren that “ an ex parte order issued without a hearing or an opportunity to be heard by the affected party overlooks procedural safeguards which form the barrier between rule by law and rule by whim and caprice.”

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futile protest of Rita Martinez will lead to a new and productive dialogue outside the Hospital. It will be recalled that the Montefiore Hospital Bioethics Committe had broken o ff a discussion at m id-point in order to respond to the Director’s request for counsel in the case of Rita Martinez. I would like now to return to that discussion and follow it to its conclusions. The Committee had agreed to study selective limitation o f treatment, especially in critical or terminal care. In this it was responding to requests from its own members, in particular those from the Department of Medicine, who felt a need to develop more inform ation and some sort of ethical consensus on the issues. There was a nagging sense that decisions were being made without adequate consultation, and perhaps, in some cases, for inappropriate reasons. There was continuing concern about the practicality and acceptability o f various proposals for reform. The first stage in the Committee’s discussion was a series of reports, supported by case material, designed to show how the question of selective limitation of treatment arises in various departments and units of the Hospital, and how decisions o f this sort are usually made. It became apparent that although hard choices are faced daily in settings such as the Oncology program , the Intensive Care Unit, and the Special Care Nursery, consultation and review are easier to manage in these smaller, more tightly knit teams. The conflicts and uncertainties seemed most acute in the Department of Medicine, where the large numbers of patients, house staff, nurses, and attending physicians make communications more difficult. The Committee then addressed itself to the question whether the withholding of such measures as cardiopulmonary resuscitation can ever be justified. It was agreed that in administering ‘lifesaving’ or ‘resuscitative’ treatm ent, physicians and other health care workers are most often acting in the patient’s interest and with due regard for his legitimate claims. However, in certain cases this same regard for the rights and interests of patients can justify, and may even require, that such treatment be withheld. Hence, the generally recognized moral obligation to save and prolong the lives of patients is not strict or absolute; some exceptions may be made. Nevertheless, there is a strong moral presumption in favor o f resuscitative therapy and other emergency measures, and exceptions may be made only when it can be shown that such treatment would provide no significant benefit, or would be likely to do harm significantly in excess o f any benefit it might provide. The Committee agreed that decisions to limit treatment should, as far as possible, be based on full discussion with the patient and the patient’s family. Competent adult patients, of course, retain the right to refuse medical interventions, including CPR. Since it is widely assumed that hospital personnel will make every effort to prolong the patient’s life, patients and families who expect aggressive treatment may not think it necessary to say so. It is therefore the responsibility o f the physician, if he thinks such treatment is unwarranted, to raise the issue with patient and family in a way which will bring unexpressed values, wishes and expectations into the open. There will o f course be instances in which 47

a direct approach to this topic may be harmful, but the Committee noted that these cases should be carefully distinguished from those in which the physician himself finds it too painful or difficult to be frank. If, as is often the case, the patient is incapable of deliberation and choice at the time such a decision has to be made, discussion with relatives, friends and counselors may be helpful in reconstructing the patient’s own attitudes and values. However, the Committee agreed that information obtained in this way must be weighed with caution, since relatives and friends of the patient may not clearly distinguish between his interests and their own. Although the responsible physician remains the final arbiter o f what treatments will be provided or authorized, ordinary prudence suggests that an effort should be made to arrive at agreement with the patient’s next of kin in these cases. The Committee did not attem pt to specify the clinical conditions under which decisions to withhold resuscitative measures might be appropriate. Rather, it sought to outline an acceptable process for making such decisions, incorporating the sorts of disclosure, consultation and review which would minimize the likelihood of error and misunderstanding. With an outline of such a decision procedure in hand, the Committee consulted the Hospital attorneys and asked for their response. W hat was being suggested now, in the spring of 1979, was quite different from the proposals which had been floated in the fall of 1976. No new committees were to be created, with authority to hear appeals from doctors’ decisions in cases of conflict. Rather, it was suggested that the consultative mechanisms already in place within the medical service could be employed in better ways to yield the desired results. The Hospital was not being asked to intervene in any new and unaccustomed way, but only to endorse these or similar decision procedures so as to support reforms in the present practice. The Hospital’s attorneys were still reluctant to recommend endorsement, for many of the same reasons they had cited two and a half years earlier. In the end, then, the Committee agreed to suggest that certain members of the Department of Medicine organize a clinical training module based on the Committee’s outline of procedures, and that an effort be made to insure that all new house staff are given the opportunity to discuss these issues early in their rotation. Early reports suggest that this training module has been well received and that it has led to much further discussion of legal and ethical issues in patient care. The Committee thus showed that it was able to respond creatively to the problems which had created an impasse in the fall of 1976. And in so doing it had taken the first step toward sponsorship of a clinical training program in bioethics. In the long run, I think, this will prove to have been a most significant move. In these pages I have recounted some experiences and shared some observations drawn from the first three years o f the Philosophy and Medicine Program at Montefiore Hospital and Medical Center. I have sketched the milieu in which I worked. I have described some early incidents which I came later to see as both initiatory and thematic. And I have indicated how the issues raised in the

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early months were carried forward and addressed by the new Montefiore Bioethics Committee. The picture which emerges is o f the philosopher as consultant, as bureaucrat, as writer of memos and drafter o f position papers. There is some distortion here, since I have deliberately chosen not to report on formal teaching activities, either in the medical school or in clinical rounds and conferences. But the picture is not far from the truth. As time went on I found myself more and more drawn into the clinical and administrative workings of the Hospital, not merely as an academic commentator but as a staff person with more or less well defined responsibilities. Certainly it is possible to raise questions about this sort of role for philosophers. In his essay included in this volume, Victor Sidel asks some o f these questions. He asks whether in taking on this role the philosopher may be just helping the physicians do their work, and thus may risk being coopted into a system of medical care which is often inefficient and unjust. He asks whether philosophers may be seduced by the psychic rewards o f feeling helpful to individual patients, and come to prefer this activity to their proper activity of social criticism. I understand and appreciate these concerns, and I agree that there is an urgent need for more rational debate within the American medical establishment. However, I see no reason to believe that philosophers working on detailed concrete issues in a particular hospital are specially liable to be coopted in any way which would lead them either to accept or defend the prevailing inequity and waste. Nor do I think that philosophers in medical centers are likely to be seduced into the role of advocacy for individual patients. Philosophers cannot lay claim to any special competence for this role. In my experience the opportunities to play at patient advocate have been few, and (as my narrative makes clear) none of the experiences has been at all exhilarating. I have to construe Dr. Sidel’s worry in a different way, namely, that a philosopher working on many small scale administrative and clinical issues in a hospital setting may be diverted from giving enough time amd attention to broader questions of policy. I think that this is true, but I conclude that one ought not to try to do both. Finally, I agree that it is inappropriate for philosophers to help physicians and administrators to do their work, if that means making their work easier by smoothing over conflicts and providing an ideology to justify current practice. But philosophers may quite properly help physicians and administrators to do their work insofar as it is part of the physician’s job, part of the adm inistrator’s job, to be critical of how their jobs are being done. Philosophers may not make things easier by giving this sort of help, but their work may nonetheless make an im portant contribution to patient care. In an earlier report on the Philosophy and Medicine Program at Montefiore, I wrote that while in time-honored academic fashion I hoped to assist in stating and clarifying certain ethical issues, I hoped also to bring some of these issues to closure and to help embody the outcome in Hospital policies and procedures. It was my good fortune to find at Montefiore many physicians and administrators who shared these goals. I think that a beginning has been made.

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PHILOSOPHY IN A MEDICAL SCHOOL: GETTING ESTABLISHED Natalie Abrams, Ph.D., and Michael Buckner, Ph.D. Philosophy and Medicine Program, Office of Urban Health Affairs, New York University Medical Center Part I: History Being cast adrift in a major medical center, with a relatively am orphous job description, was nearly an overwhelming experience. Although our job descriptions as philosophers-in-residence at New York University Medical Center specifically mandated “ encouraging dialogue, critical reflection, and the assessment o f underlying value judgm ents,” there was no specific format or structure set up for this to occur. Were we simply to go up to various physicians on different services, introduce ourselves, and state that we wanted to question their profession’s role and conduct and attem pt to make them self-critical and reflective? How were we to establish contacts with physicians, nurses, social workers, and administrators? Were we expected to reach a few individuals or the Medical Center as a whole? Although our sponsoring groups were enormously helpful and encouraging, their members were only a small minority of the staff of the Medical Center, and they were furtherm ore not supported by any clinical departmental or institutional commitment to their activities. Other complications of our initial appointments resulted from constraints placed upon us by the mandate of the New York Council for the Humanities, our original funding source. The New York Council’s goal is to fund humanities programs for the “ public,” i.e. its funds are not meant to be used for teaching students. In theory at least, with the m andate to stimulate discussion with practicing health professionals, we were originally to be placed in University and Bellevue Hospitals, not New York University Medical School. Such a separation is not feasible, however, in university-associated or teaching hospitals. Almost all discussion of medical topics occurs in conferences which are partly designed for the educational benefit of the undergraduate medical students and the residents (technically considered post-graduate students) and partly for patient care decision making. How then were we to initiate or formalize any involvement without becoming part of the educational establishment? The fact that we were both trained to enter university teaching and saw this as our original career goal also tended to focus our attention on the educational or teaching component of our role. A second constraint of the New York Council grant was that attention was not to be directed exclusively at the medical profession but also at practicing social workers, nurses, and even patients. We very quickly discovered, however, that approaching patients without going through the medical and nursing hierarchies was virtually impossible, and, even if it were possible, was guaranteed to alienate one of our primary audiences, the medical profession. In addition, including social workers and nurses in our audience made our task that much more formidable.

A third constraint of the Council’s grant was its period of tenure, namely parttime (two days per week) for one year. The Council has an unwritten policy not to fund a project for more than one year. It wanted to serve as the impetus for starting innovative pilot projects which might them be taken over by the respective institutions. We therefore faced a difficult decision quite early in our first year. Should we each, independently, make contacts and attempt to learn about the institution o f medicine and its problems, with the primary aim being our own intellectual development? Should we view this as practical experience and exposure which could contribute towards our thinking, writing, and teaching (somewhere else) in the field o f philosophy and medicine? Or should we work together, engage in all of the necessary administrative activities, and work toward establishing an ongoing position for ourselves and our activities in the medical center? Following each deliberation, having known each other for only a few weeks, and with a minimal indication of support from our sponsors, we opted for the latter approach. This mandate of the New York Council grant and the realities o f a working medical center created considerable tension during the first several months of our appointment. In light o f all of the above, a significant am ount o f time during our first six months was necessarily spent in planning our approach in order to best fulfill our objectives without offending or alienating anyone. We might add that such planning and orientation time was sadly lacking from the original one year proposal submitted by the S.P.P.A. and funded by the Council. With our assumption that this was probably a one year appointment, the am ount of time spent in deliberation about tactics, implementation, and personalities, and therefore “ lost” to issues in philosophy and medicine, was extremely frustrating. As it turned out, then, the first year o f the program was separated into two phases, an orientation, observation, and planning phase, and then a phase when we actually attempted to organize conferences or sessions on philosophy and medicine and to establish a substantive dialogue. Given the size and complexity o f the Medical Center, it was clear from the outset that we could not closely observe or become involved with all o f its programs. We pursued a rather eclectic approach towards meeting representatives of various programs and clinics at both University and Bellevue Hospitals. Most o f these meetings were initiated by one o f our hosts. We postponed contacting some people who were not felt to be hospitable to our presence or at least would not be natural sympathizers with our cause, believing it better to establish a group of friends before encountering potential critics. For example, we were discouraged from becoming involved with Psychiatry in the beginning, in order to indicate clearly that our concerns were broadly defined and not limited to issues of that specialty. In our inital meetings with various individuals in the medical center, our aim was to explain our goals and our general orientation towards philosophy and medicine. Some wanted assurances that we were not muckrakers, others that we were not Marxists or existentialists, and still others that we were not theologians. They all were concerned, to some degree, about admitting outsiders into what has 51

traditionally been a closed “ society.” Fortunately, we both had a similar approach to philosophy and presented our basic orentation as that of analytical philosophy. Since many health professionals, as well as others, are unaware o f a philosopher’s approach to ethics, it was necessary for us to distinguish it explicitly from other disciplines and activities, including psychiatry, social work or religious counseling, and moralizing. Part o f this differentiation even affected our selection o f offices. A chaplain, who was on the Bellevue Hospital sponsoring committee, kindly offered us offices in the chaplain’s division. Following our own intuition and advice from a physician sponsor, we declined this offer and chose an old office in an original Bellevue Hospital building. We believed this was an im portant factor in maintaining a distinct professional profile. It was also im portant for us to avoid taking an adversarial position and generating suspicion. Another of the m ajor functions o f these first contacts was thus to establish a personal relationship and instill a sense of trust. In fact, this objective in some ways limited the publicity which could be given to our program. Towards the middle o f our first year, a New York Times reporter was interested in publishing an article on our activities. Unfortunately, he was not interested in limiting the story to an accurate description of our program at the time, but wanted to embellish it with misleading references to “ philosophers at the bedside” and with quotations from medical discussions of morally problematic issues. When we would not discuss these matters with the interviewer, the absence o f a dramatic hum an angle led the reporter’s editor to kill the story. Despite the New York Council’s strong desire to inform the public about this program, our primary obligation was to respect the confidentiality o f the medical personnel with whom we were working. There was an almost entrepreneurial aspect to these meetings and personal encounters during the first phase o f the program. We had a product— philosophical analysis— which we wanted to “ sell.” We wanted to convince members o f the medical and health care establishment that this was a worthwhile product which would help them in doing their work, namely educating the medical student, and would ultimately contribute toward a better end product, i.e. a more competent physician. This entreprenurial function was quite alien to us as academically trained philosophers, but not as individuals who were both committed to applying philosophy to solving or at least further understanding practical problems. We believe that a willingness to engage in this kind of salesmanship and to appreciate its role were essential factors in our program ’s growth. Since at times, even for us, the need to constantly convince others of the value of our work became somewhat depressing, it was very im portant that there were two o f us working together to provide support. In time, we were invited to attend numerous activities in the hospitals, such as medical case conferences, grand rounds in various departments, and select committee meetings, and we were encouraged to go on ward rounds with the p h y sic ia n We attended many of the conferences together, but divided up for rounds. Between the two of us, we went on rounds for various periods of time in four of the five m ajor clinical departments, including Pediatrics, Surgery, Obstetrics/Gynecol­ 52

ogy, and Psychiatry. To have another perspective, we also attended some courses with first and second year medical students. Our beginning attem pt to establish formal sessions on philosophy and medicine was somewhat easier than building personal contacts. This was primarily due to the existence o f an already established course in community medicine for first year medical students, offered by the Office o f Urban Health Affairs. The course consisted of a series o f lectures by invited speakers, and, upon our arrival, we were asked to teach a six week segment on moral issues in medicine, a topic not previously covered. Initial hesitancy to do this because of the New York Council’s m andate was quickly dispelled by the fact that the teaching would clearly involve additional hours, well beyond the two day per week S .P .P .A . commitment. Since we had realized that two days per week was insufficienct time to try to establish an ongoing program, we were prepared to contribute extra time. Because o f the interdisciplinary nature of the course, it turned out that teaching the ethics segment was an excellent way to meet a variety of medical center personnel, including physicians, nurses, and social workers, and to actually demonstrate the kind of philosophical analysis o f medical issues we had been describing. The ethics segment consisted of six three-hour sessions, a relatively unwieldy period of time, but the only time available in the curriculum. We decided on the following format: each session was divided into a normal half-hour lecture by one of us, followed by a half-hour lecture by a physician or nurse, invited to describe personal experiences in the field in relation to the day’s topic. Then, the class was divided into small discussion groups which included additional nurses, physicians, and social workers, thereby insuring widespread interdisciplinary cooperation in the program. The six topics included were ethical theory, abortion, the physician-patient relationship, death and dying, experimentation, and the allocation o f scarce resources. On the whole, the course went well (measured primarily by the attendance rate), although we were informed by many students (later substantiated by a questionnaire) that they did not generally like the lecture form at and would have preferred more discussion. Since they sat in lectures all day in their medical courses, they were looking to this course to provide a way of interacting and discussing their own ideas. This general student attitude has become a constant challenge to us. On the one hand we believe that students should have this opportunity to express their own ideas about ethical issues and consequently come to understand the source of much ethical conflict. On the other hand, some didactic material must be taught to provide them with the tools for philosophical analysis. Furthermore, if philosophical analysis is to occur, it is essential that a seminar not disintegrate into casual discussion of everyone’s opinion, which students could just as easily do on their own time, and certainly without a philosopher. Ideally, one begins from the students’ own beliefs and attitudes and through critical questioning introduces philosophical issues as necessary. In addition to this course for first year students, some fledgling attempts were made to reach second and third year students and nurses. We approached the Department of Pediatrics about scheduling sessions with third and fourth year 53

students and residents as they rotated through that service. It was decided that, at that time, scheduling additional required sessions would not be appropriate because o f the students’ and residents’ heavy schedules, but we were free to advertise and conduct elective seminars for students in pediatrics. We then decided to open them to second and third year students on all the services. A luncheon discussion group was formed, with four sessions organized around a particular topic, the first one being genetic issues in health care. Between three and twelve students attended each session. In terms of reaching medical students, we were disappointed, but the actual discussions were quite lively. There are definite advantages to providing elective offerings and cultivating a group (albeit small) o f interested, motivated students who become friends and supporters of the program. On the other hand, the small attendance demonstrated that time in the regularly scheduled curriculum was essential if the goal is to reach large numbers o f students. Our attempt to reach practicing nurses was totally unsuccessful. (New York University’s nursing school is at a different location.) Following numerous planning sessions with the assistant director of nursing at University Hospital, we scheduled and advertised three different seminars for nurses, one for each shift. Only one nurse showed up for one o f the sessions. This was quite a disappointment. Subsequent explanations included the fact that there had recently been nursing staff cut-backs and nurses could not be released to come, and in order to attract nurses after hours, it is necessary to offer continuing education credit. At the end o f the program ’s first year, however, we did organize a one day conference with University Hospital’s Department of Nursing and the S .P .P .A ., on ethical issues in nursing. The conference was attended by approximately one hundred nurses from the New York City area, and questionnaires indicated that it was successful. However, the questionnaires also indicated that most nurses would be interested in attending seminars on ethical issues if they were offered at their institutions. A discrepancy between nurses’ intentions and actions apparently exists. By the close of our first year, interest in our program had grown within the medical center. We were asked to give presentations to various groups, reflecting on our year of observation and informal discussion and describing our ideas for integrating discussion o f philosophical issues into the basic structure of the medical center. Presentations were made to such groups as the Pediatrics faculty, the Nursing Department at Bellevue, the Division o f Genetics, and the Department o f Social Services. Also, by this time, the Dean’s Committee on Ethical Issues in Medicine, one of our original sponsoring groups, had assumed a different role in the medical center. At our suggestion, instead o f simply sponsoring colloquia, the committee had become a faculty forum for the discussion of ethical issues, with representatives from the different clinical departments, the student body, the Departments o f Nursing and Social Work and the house staff. While most of our efforts were directed toward meeting and engaging medical center personnel in dialogue about ethical issues in medicine, we were also operating on a different front as well, attempting to secure an institutional 54

commitment for ourselves and our program (at least for the following year) and attempting to obtain grant support. We were quite concerned about the New York Council’s initial refusal to continue support for a second year and spent a considerable am ount of time meeting with members o f the S .P .P .A . and Dr. Alex Rosen discussing our future. The first breakthrough came when the New York Council agreed to entertain a grant proposal for the second year, provided it was submitted by the N.Y.U. Medical Center and not the S .P .P .A ., indicating the center’s support, and provided that different philosophers were hired to fill our role and continue our work! The council did not want to be funding the medical center to support two regular positions. Beyond our personal interest in remaining employed and continuing at the medical center, there were many substantive reasons for not changing individuals, including the fact that the trust and personal relationships which we had established with many physicians and nurses were not automatically “ transferable” to other individuals. From the beginning, this whole aspect of our role had not been fully anticipated. If a permanent program was ever to evolve at the medical center, it was necessary for the same people to remain at least for the first few years of its development. Certainly changing personnel every year would not have been desirable. After much persuasion, the Office o f Urban Affairs, under Dr. Rosen, submitted a grant to the New York Council for the second year, with the proviso that we remain, and that we be full­ time. It was clear to all those involved by the end o f the first year that in order to develop a worthwhile program, it was essential for us to be employed full-time. While this grant was pending, two other applications were submitted. At New York University, we hurridly submitted a proposal to the Department of Health, Education, and Welfare, Bureau o f Health Manpower. The S.P.P.A. also submitted a grant to the National Endowment for the Humanities, Office of Public Programs, to continue the project for a second year. To our delight, all three grants were awarded. The New York Council agreed to N. Y.U’s conditions, and both N .E.H . and H .E.W . provided awards for another year of operation. We were one o f five medical schools nationwide to receive the H .E.W . funding. Fortunately, H.E.W . agreed to allow us to use its grant over a two year period, so that during our second year we were primarily supported by N .E.W ., the New York Council, and only minimally by the H .E.W . grant. During our third year, we utilized the m ajor portion of the H .E.W . grant. Being able to defer the H .E.W . grant meant that early in our second year, we had the security of knowing our program would continue for yet another year. One unfortunate aspect o f the grant, however, was the fact that government funding cutbacks had reduced the award to one year when previous H .E.W . grants had been for three. This meant that seeking further grants would have to occur again during our third year, to support our fourth year o f operation. Needless to say, constantly pursuing funding and worrying over our future employment were very distracting. This was only the beginning, however, of a continuing existence fraught with two goals, trying to accomplish our objectives at the Medical Center and trying to secure financial support from both the institution and outside sources. The second year of the program began with much more direction. We began in

September to recontact many o f the key individuals whom we had met during the first year in order to attem pt to formalize some interactions with their specific programs or services. We also continued what had come to be called our “ in­ residence” period, attending rounds for short periods of time with attendings and residents in Pediatrics, Psychiatry, O b/G yn, and Surgery, and beginning to do so with the Department of Medicine. The Dean’s Ethics Committee continued to meet monthly with varied representation, and the ethics course for first year students was repeated in revised format. Instead of attending large lectures, the entire first year class chose one of four seminars on a selected topic in medical ethics: experimentation, rights and responsibilities in health care, death and dying, and values in medical science. After further discussion with the Pediatrics faculty in charge o f the third year curriculum, pilot one-hour case conferences (described in detail under Activities) were also tested as part o f the third year students’ regular schedule. These conferences focused around discussion of the ethical and philosophical issues presented by particular cases. Informal discussion with medical center personnel continued to be sought and select new activities were initiated. For example, following the previous year’s presentation to the Division of Genetics about philosophy and medicine, we were invited to participate in bi-monthly conferences on ethical issues in genetics; and a series called ‘Conversations with the Faculty,’ in which a few students would meet on an informal basis with a particular faculty member, was tested. Efforts were also underway to organize an interdisciplinary mind colloquium which would meet monthly to discuss issues in the philosophy of mind. We did not want our program to be limited to issues in medical ethics but rather preferred to include all issues and areas in which philosophy and medicine are related. Sixteen individuals, from such diverse fields as psychiatry, neurology, neurosurgery, physiology, psychology, English, and law, expressed interest in participating in such a colloquium and the first organizational meeting was held at the end of the second year. Plans were slowly developing to formally structure the Philosophy and Medicine Program. An im portant administrative issue had been developing since the end o f our first year. When it was decided that our positions should be full-time, it was not clear what status we would hold. Urban Health Affairs is an office within the Dean’s Office, and it does not have departmental status. Most of the other employees of the office are staff personnel rather than faculty, except for two physicians who have joint appointments with their respective clinical departments. In view of our educational function, which had clearly been emerging over time to be central, and in view of our doctoral degrees, we lobbied to receive academic appointments in the medical school. In September, 1977, with the support o f Dean Ivan Bennett, we were appointed full-time assistant professors of philosophy in the School o f Medicine (non-departmental), and given tenure-like appointments. Success in securing these appointments was one of the first signs of institutional commitment to our program. On the other front, towards the end o f our second year, we were again beginning to pursue funding for our fourth year. We developed a rather extensive grant proposal which we submitted to several private foundations. The response 56

from all o f these foundations was that they were not programatically interested in funding this area. By January o f our third year, all these proposals had been rejected. At that time, we submitted a proposal to N .E .H ., Office of Education, for a three year development grant to institutionalize the program at the Medical Center. This was awarded in June and we began our fourth year, 1979-1980, with the knowledge that our program would continue at least until August, 1982. More im portantly, in order to receive the development grant, our institution had to pledge increasing financial support over the three year grant period, as well as full support of the program at the expiration o f the grant period. Thus, the Philosophy and Medicine Program was slowly gaining institutional recognition and commitment, as well as a formal structure.

Part II: Organizational Structure and Program Development The development of a philosophy program within a medical center has to take into account the basic nature o f the host institution and integrate accordingly. Therefore, before describing our program as it presently exists, we will outline the functional structure o f the New York University-Bellevue Medical Center as we have come to understand it. Although every program must be responsive to the specific character o f its own institutions, we believe that our medical center embodies features common to most medical institutions. Three basic functions are realized in a large urban medical center: medical practice, medical education, and medical research. The two overlapping institutions in which these occur are the hospital complex and the medical school. The hospital exists mainly to provide patient care, but it also functions as the setting for students’ clinical education, and supports a significant am ount of research as well. Non-clinical basic medical research and the two “ pre-clinical” years of medical education, devoted to the basic medical sciences, occur within the medical school. At N.Y.U ., an administrative link connects the two institutions, as the chairmen of several of the medical school departments also serves as chiefs of the corresponding patient care services in the hospital. New York University’s medical school curriculum is a fairly standard one. The pre-clinical studies of the first two years attem pt to provide students with an understanding of normal and pathologic functions and processes, and to begin to relate the basic biological sciences to clinical understandings and applications. Students acquire an inform ation base and problem solving methodology independent of immediate questions o f patient treatment and management. Most schools, including N .Y .U ., have introduced into these pre-clinical years a broadly based course concerned with human behavior. The focus of this course is wider than the standard clinical psychiatry offerings, which deal mainly with behavorial pathology. Medical students begin their clinical education during their third year, when they serve an apprentice “ clerkship” on each o f the m ajor clinical services. The students are assigned to each service on a full-time, six days per week basis, for a varying number of weeks (e.g. eleven on medicine, six on psychiatry and 57

pediatrics). During this period the students attend conferences, work in small teams with physicians and house staff, follow patient care, and are tested comprehensively by the service at the end o f each rotation. Clearly, it is during the third year that the students are overwhelmed with the first attem pt to apply all o f the basic medical knowledge accumulated during the first two years, and with their first encounter with the norms and realities of clinical practice. Clinical education continues through the fourth year, when students are free to select elective rotations at their own or other medical schools. There are a variety o f ways to incorporate a philosophy program into the medical curriculum. One o f the most effective formats for the introduction of basic ethical issues, theories, and terminology is within the comprehensive behavorial science form at, since that is one course which attempts to integrate theories about human social behavior. Then, although students may not be in a position to appreciate more practical philosophical questions arising from the nature o f medical practice while they study anatomy and the biological sciences, development of interest in such questions should be established as a part of the clinically-oriented science courses. The possibilities for such introductory treatment o f issues range from elective seminars on a selected topic to presentations within the framework o f a specific course (e.g. considering the social or ethical aspects o f using placebos within a pharmacology discussion, the nature o f “ competence” within psychiatry, etc.). The allocation o f offerings during the clinical years is a difficult question. It is possible to develop a philosophy program within the precincts o f a single service, if it is one through which all students rotate on clerkship. The advantage to such an arrangement is that the philosopher will be able to learn o f the issues encountered on that service with an intensive concentration, becoming in a sense a specialist in those problems, well acquainted with the clinical faculty and visible to the students. But this arrangement may pose problems if the philosophy program has to justify its institutional existence in terms o f breadth o f offerings. Another danger with this intensive approach to a single service is that the fundamentally general character of philosophical inquiry may become subordinated to a special problem orientation. Students may perceive the philosophical com ponent as intensively present in one area and a matter of sloppy opinion in another. In developing our program, we considered this disadvantage a decisive one and opted for the risks inherent in an attem pt to cover the field by interacting with several different services. The Philosophy and Medicine Program at New York University is part of the Office of Urban Health Affairs, which is an office o f the dean o f the medical school. This administrative arrangement enables the program to integrate with the existing structure of the curriculum and develop as a general resource to all of the medical departments and services. There are other alternatives to this administrative plan. An academic philosophy departm ent could be housed within one of the standard clinical departments. However, this would subject it to the budgetary pressures that force programs to produce highly specialized work as a means o f justifying their allocation o f limited departmental funds. For example, this would preclude a program placed within Psychiatry from utilizing a m ajor portion o f time for work in Medicine and Surgery. Perhaps, if the faculty 58

positions themselves must be placed within a standard department, it would be best to have a joint appointment between two general clinical services, such as Medicine and Pediatrics. Another alternative that has been pursued at some newer medical schools has been to establish an independent department of the humanities in medicine. This is an extremely difficult option for established medical schools in which there is great inertia against changes which restructure the institution. However, with this arrangement, the departm ent’s chairman could benefit from a collegial interaction with the chairmen of the other departments. The danger in this sort of institutionalization is that, as one department among others, the small new unit may begin to establish competitive relations with the other departments. This is clearly inimical to building cooperative and collaborative relations with these same departments. Since the Philosophy and Medicine Program originated as a “ public issues” program instead of an educational one, it was understood that our efforts should be directed at the entire range o f professional communities within the medical center. This included medical students and physicians, in the context of both the primary clinical services, such as Internal Medicine, Surgery, or Pediatrics, and the clinical services which provide diagnostic and treatment support, such as Radiology and Nuclear Medicine, Pathology and Biochemistry. In addition, there are other health service professions interacting with physicians in the hospital, such as nursing, social work, and therapy. There is also a broader public constituted by the technical, clerical, and administrative staff, persons whose work, while not a form o f direct patient care, is nevertheless essential for the effective operation of the center as a health care institution. As we became familiar with the immensity of this “ public,” we concluded that only a few broad based lectures, panel programs, or films could be directed at a general audience. The program began to develop within the medical school, and our orientation became more conventional in the sense that most effort was directed towards planning and developing an integrated program for the medical students. Other programs in philosophy may develop different approaches towards the large and diffuse personnel of a medical center. For a program as novel to medical education as Philosophy and Medicine, there is an im portant need to familiarize the medical faculty with the issues as developed by the philosophy faculty. Beyond promoting understanding and acceptance, there is a more practical concern. Because students can only learn to recognize and appreciate the ethical and philosophical components o f their medical work through fairly continual discussion and exploration of these concerns, a small philosophy faculty cannot adequately reach a student body numbering over seven hundred. It is necessary to develop a philosophically sophisticated group of medical faculty to serve as co-teachers, who will incorporate professional concern with these issues into their own daily teaching and practice. There are basically two mechanisms for this sort of faculty development. The first utilizes a variety of opportunistic presentations to the faculty, in the form of luncheon discussions, staff meetings, and lectures at departmental colloquia. The second is based on the establishment of an ongoing forum for the discussion of 59

these issues among a stable group o f interested faculty and administrators. Faculty development is certainly a gradual process, but over time there is an impact. At New York University, we have benefited from the prior existence of the Dean’s Ethics Committee, which serves as a faculty forum for exploring ethical issues in medicine. Monthly meetings are held, and special guests are invited to present issues from the professional fields. We believe, however, that despite the valuable contributions which medical faculty can make to the interdisciplinary study of the ethical and philosophical foundations of medical practice, the primary faculty for such a program should be philosophers. With a professional faculty schooled in philosophy, especially social and ethical theory, philosophy of science, applied logic, and so on, a program can hope to contribute significantly to the education o f competent physicians; otherwise the program remains an amateurish frill. The establishment of a new academic program within an institution such as a medical center is a time consuming, gradual process, which places large demands upon the program ’s faculty to fulfill administrative and social duties essential for success, in addition to the academic responsibilities. The respect of the medical faculty and students is not easily gained. As professionals with a practical orientation, physicians demand evidence that philosophical work is necessary in order to produce a clearer understanding o f issues which are already subject to much common sense discussion. This challenge creates the need for considerable effort to produce intellectually rigorous work, to organize and present it well, and to foster receptivity to it through building social and professional relationships. The degree o f trade-offs between administration, teaching and research varies greatly, depending upon the pace of development being attempted. If there is sufficient time, the program can be established over a decade, the administrative tasks can be attended to at one’s discretion, and research and writing can be maintained. Unfortunately, this kind of planned and leisurely development is lacking for most new and experimental programs. Opportunities are not scheduled to one’s convenience but must be met when they occur. The students have their academic calendar, the residents their work schedule, the faculty their committees, and the administrators their deadlines for reorganizing and presenting new budgets. But, whatever the trade-offs, the one principle that should govern all efforts is that the program establish respect for its own professional activities and for the competence o f its faculty. There must be sufficient publicity to make available to the medical faculty information about the activities and successes of the program. It is extremely helpful if outside recognition can be secured for the program and its faculty. Beyond the usual channels o f professional publications, this can include invitations to speak publicly, to attend public conferences, and to participate at other institutions. Perhaps one of the most respected sources of outside recognition at a medical center is the winning of competitive grants for the educational program an d /o r for the research o f the faculty. It is im portant that the school provide some portion o f the support of the program from the outset, since there must be indication that someone in authority perceives it as a vital 60

activity for the educational mission of the medical school. Nonetheless, some success at securing outside funds is invaluable for gaining the respect of the school’s administration and senior faculty. Part III: Philosophy and Medicine Program Activities The following section is a description of the primary activities of the Philosophy and Medicine Program as it has evolved since its third year, 1978-79. The fundamental goals of the Program are the following: 1.

To make medical students, residents, and clinical faculty aware of the moral significance of the hospital and therapeutic decisions they must face, and o f the basic values that figure in such moral decisions. 2. To bring order and clarity to their deliberations about difficult medical cases, by acquainting them with the methods of moral reasoning, and the concepts of standard ethical theories. 3. To develop awareness of the philosophical context o f medical decisions, by exposing them to literary and sociological images o f man and society, and theories of the physician’s social role. 4. To develop awareness of the historic and theoretical context of medical practice, by making them conscious o f the tradition of medical discovery upon which their work is based, and o f the possible ethical implications o f such discoveries now and in the future. The program is based upon two fundamental beliefs: that many health care decisions presuppose substantive ethical and philosophical assumptions; and that delivery of quality care requires that health professionals study and reflect upon these issues. A. Courses 1. First year The first year medical ethics sequence has again been revised as a result of reorganization of the entire first year curriculum. The former Community Medicine course (which originally hosted the medical ethics sequence) has been merged with the Psychiatry course to form a new year-long Behavorial Science course. The present form at includes offering three sections, repeated twice a week, of an eight hour seminar in medical ethics to all first year students. Each seminar is designed to combine discussion o f representative clinical cases and basic research problems with a consideration o f substantive ethical and philosophical concepts. In accordance with our original interdisciplinary approach, physicians, lawyers, research scientists, nurses, and social workers make presentations to the seminars as well as actively participate in class discussions. Among the many possible topics for discussion during the introductory exposure, it was necessary to make a selection. Based upon experience at the Medical Center, the four topics chosen are professional responsibility, informed consent, allocation of resources, and human experimentation. 61

2. Second year The second year medical ethics sequence is an elective. This sequence consists of a series of intensive seminars limited to a single topic and extending over a period of four weeks. Readings are kept to a minimum consisting o f one case and one essay per session. Each session is conducted as a round table discussion encouraging maximum student participation. Although these seminars are primarily directed at second year students, they are open to third and fourth year students as well. The topics for these electives include such issues as the following: judging quality-of-life; genetic screening and counseling; the doctor-patient relationship; confidentiality; and the right to refuse treatment. Some underlying philosophical issues implicit in these topics are also pursued. They include the definition of a person; the acting-refraining distinction; the definition of rationality and competency; and the issue o f distributive justice and quality of care. An elective seminar series on law and medicine, taught by faculty members from the N.Y.U. School of Law, is sponsored by the program, primarily for second year students but open to all classes. 3. Additional offerings (a) Fellowship program We have begun offering to third and fourth year medical students, interns, and residents the opportunity to pursue sustained, intensive research on selected topics in philosophy and medicine. Stipends are awarded, and the fellowship period may last four to eight weeks. In the summer o f 1980, seven fellowships were awarded to students and residents, with the study topics including patient responsibility, ethical and philosophical aspects of the work of Freud, and ethical and legal issues in abortion. (b) Requested seminars Upon request from four or more faculty, students, or staff, we will organize a seminar to study intensively any area, issue, or writer o f philosophic significance. The length of the seminars depends upon the topic chosen and the nature of students’ interests. Faculty from the other schools of the University may be invited to participate and address the seminar. During 1978-79, two six-session sequences were offered, one on Moral Philosophy, and one on Philosophy of Mind. During 1979, a session on Professional Responsibility was offered. These seminars are open to all Medical Center personnel, including faculty, students, nurses, and administrative staff, as well as individuals from the Law and Dental Schools. (c) Dental seminars In cooperation with the School of Dentistry, which has established a new fouryear curriculum, we offer seminars on ethical issues in health care to first year dental students. Two sections of the seminars were offered over a five-week period during the spring of 1979. These seminars are part o f a trial program for the Dental School, sponsored by the University’s Humanities Council.

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B. In-residence We also periodically serve as philosophers-in-residence on the clinical services. During this time we round with the health care teams consisting of third and fourth year students, house staff, and faculty; attend conferences; and are generally available for informal discussion. This phase of the program serves several functions: to provide the students and staff during their clinical years with discussion of ethical and philosophical issues in medicine; to relate directly philosophical concern to specific medical cases; and to insure that our own teaching and research activities be informed by direct contact with the realities of actual clinical practice. C. Case conferences The weekly case conference has long been a component of medical education during the clinical years. In collaboration with the Departments of Medicine and Pediatrics, we utilize the case conference form at to focus attention on the ethical and social dimensions of patient care. 1. Third year sequence As a continuation of the students’ exposure to the ethical dimensions of medical practice, case conferences are scheduled as the students rotate through various departments. At present, we have regularly scheduled conferences in Pediatrics and Medicine. Each conference begins with a clinical presentation of a patient’s history and status. We then elicit discussion and analysis o f the ethical and philosophical issues presented by the case. Students are encouraged to follow-up issues discussed during the conference and to continue following developments o f the case on the service. The respective chief residents for the various services participate with the philosophy faculty in arranging these conferences. Consequently their scheduling and occurrence rate varies with each department, but the average is one conference every five or six weeks for each rotation. 2. Fourth year and house s ta ff sequence In cooperation with the various departments, we offer case conferences focusing on ethical and philosophical issues to the fourth year students and house staff. We have offered several pilot conferences as part o f the regular house staff series. These involve either formal presentation of the cases and ethical issues or discussions scheduled during a house staff luncheon seminar series. These conferences have been quite successful. One o f the m ajor reasons seems to be that the house staff who attend are actually facing the problems and cases we discuss and have primary responsibility for the patient’s care. D. D ean’s Ethics Committee The Dean’s Ethics Committee continues to serve as a faculty forum for discussion of medical ethics. The committee now consists o f 26 representatives from the medical departments, the nursing and social work staff, the house staff, and the student body. Members of the medical center community are invited to present for discussion cases or topics which arise within their particular specialty and which pose ethical issues. The committee also sponsors colloquia on special topics of current interest. We are members of the committee and participate in its executive planning group. 63

Some topics which have been discussed at the committee’s meetings and colloquia are: privileged communication and confidentiality; responsibility for the terminally ill; hum an experimentation; medical application o f genetic information; issues in genetic counseling and screening; peer review in medicine; psycho-surgery; ethical issues in medical student education; ethical issues in nursing practice; and the attending physician-resident relationship. E. Presentations and conferences In response to growing interest in philosophy and medicine, we offer presentations both on topics in the field and on the program at New York University Medical School. During the past few years, presentations have been delivered to the nursing and social work staffs, the Division of Genetics, the Department of Pediatrics, as well as to other divisions of the medical center. Outside o f the Medical Center community, the program ’s faculty have spoken to a variety o f organizations and institutions, such as other medical schools, professional societies, religious groups, and university departments. The program has sponsored and will continue to sponsor interdisciplinary conferences oriented towards academic, professional and community audiences. In 1979, we organized a one day workshop on value issues in hospital cost control. The conference consisted of two interdisciplinary panel sessions with an invited participant audience of clinicians, administrators, insurance representatives, and others. F. M ind Colloquium As noted previously, in cooperation with the departments concerned with research on the brain, we have initiated a special university-wide colloquium on the study o f the mind. This colloquium, composed of 16 members from departments within the University, serves to prom ote interdisciplinary discussion o f the philosophic foundations of research on the mind. The colloquium meets monthly at the Medical Center. G. Speakers Colloquium In order to encourage a broad exchange of ideas and to present research in the general area o f philosophy and medicine, we have recently organized a Speakers Colloquium. Attendance at the colloquium is open to Medical Center personnel and philosophy faculty from New York University and the New York City area. The colloquium meets once a m onth, with an invited speaker presenting a talk on his or her research. Such topics as the concepts of health and disease, the ethical issues in randomized clinical trials, and health policy and distributive justice have been discussed. H. Philosophy and Medicine Program Newsletter In recognition o f the need to reach a wider Medical Center audience than those persons who attend program seminars and colloquia, we have begun publication o f a newsletter. It contains notices o f program activities, book reviews, and commentary by physicians and philosophers on selected topics. The newsletter is currently published bi-monthly, and while it is intended primarily to be an inhouse document, is sent to others on the program mailing list.

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Part IV: Future Developments There are possibilities for future development and stabilization once a program has established a certain core o f institutionalization. The New York University Philosophy and Medicine Program is attempting to reach this first stage of institutionalization during its second three years of existence. As noted previously, for us this effort has been made possible by a development grant from the N .E .H . Office of Educational Programs. Regardless of funding, the stabilization which concerns us would still require a second developmental phase. In order to have a stable education program (setting aside budgetary and administrative issues) there is a need for a set of established teaching activities which are routinized to the degree that the medical school faculty knows when they will occur, what will be taught in general terms, and which and how many students will attend. If one’s teaching is fundamentally inter-disciplinary and collaborative, then one needs to be assured that one’s place in the host’s schedule is treated as an established feature o f that schedule. Since the first stage of any program is to present a variety of experimental offerings and then to revise them as a result of feedback, the second stage cannot be reached until one has established the basic form o f the offering and arranged for its periodic repetition. We would venture to say that a program cannot be treated as “ established” until this repetition has occurred. This first component of our educational program is the core behavorial science course for first year students. We have treated the first three years o f the course as experimental. Each year the format and content have both been revised. In the third year the host course was reorganized so that our component required its own revision in order to integrate with the new goals of the behavorial science course. At the suggestion of a faculty review committee composed of physicians from other departments, some of the material formerly in the course segment will be presented at a later stage of the medical students’ education. We were also subject to reevaluation by the directors of the host course due to a change in personnel. We expect the fourth year to be a year o f stabilization, with only minor revision of content, so that the planning needs of this component o f the program can be reduced. The second m ajor component of the program is the case conference schedule for third year students. Stabilization here means the routine inclusion of the ethics section within the standing schedules for the clerkship in each service. This has been achieved with Pediatrics. In Medicine, we are still exploring new formats, although it is our expectation that the current one will prove to be optimal from the departm ent’s as well as our own point of view. Nonetheless, it will take two or three years before this offering is perceived by the faculty and staff of the department as a routine part of their curriculum. The program also faces the decision as to whether to commit our manpower to just two or three services, or to expand coverage to several others. Since the third year students rotate through each service, the goal o f establishing contact with all

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third year students can be met in either fashion. In the former case a more intimate and extensive contact could be developed with the faculty o f one department, and the corresponding dialogue with the students would be a more pervasive part of their clerkship on that service. In the latter case, each contact would be briefer, but a wider variety of issues would be pursued in the various departments and specialty services. On the face of it, the former method might appear preferable. However, the m ajor services are so large that one philosopher could not possibly cover all of the teaching teams on each rotation and continue to perform any other academic functions. Since the presence o f the program as an academic service requires some general visibility and activities beyond the third year program, it is impractical to attempt the extremely intensive approach without several more faculty members. Instead we have decided to establish “ coverage” of at least four of the clinical services and increase our presence on Pediatrics and Medicine. Additional faculty secured for the program, either through expansion or by cooperative arrangements with other parts o f the university, will make it possible to build upon this base by increasing the assignments on a specific service or with a division of a service. The program does not administer an established course for second year students. Instead, we have attempted to review the courses currently constituting the second year curriculum, and establish liaisons with the departments whose courses have philosophically relevant components. A great deal of work remains to be done with this area of the program. Our aim is to establish several lectures within these courses which would serve to introduce some philosophical leaven to their production. We have discussed this possibility with the chairman of Pharmacology and have agreed to develop a lecture on placebos for that course. There are a number of other possibilities in courses covering clinical matters. Beyond the mandatory curriculum, there is a question o f electives. The school currently has a few electives which occur in the late afternoon, or when random hours can be stolen. There is no formally organized time period for electives. This has discouraged us from attempting to develop what would be seen as an add-on course. Instead we have developed mini lunch-time seminars. These are topic oriented seminars, akin to a journal club. They are announced throughout the academic year and run for four weeks. Initially these were aimed at second and third year students, but in the future they will be open to all students (beyond the first year) and faculty..If the school establishes a formal elective period, then we will develop standard offerings for that format. Since medical ethics is covered extensively by the core program in the first and third years, our elective offerings would most likely be on issues neglected by these formats, e.g. philosophy of medicine, health policy, political theory, and the philosophy of mind. During their fourth year, students are free to establish their own schedule. Many leave school for the m ajor portion of the year and pursue sub-internships at other institutions. We would like to establish a “ sub-internship” in philosophy and medicine, which would enable the student to focus upon a specific issue, pursue a reading program, and participate in a tutorial with the program ’s

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faculty. Our first student to express an interest in this option selected an arrangement in which he did a tutorial with us while cooperating with one o f the units in the Department of Medicine. We hope to make the students aware o f this kind of opportunity by receiving formal designation as an internship elective in their fourth year catalogue. The program has also initiated or assumed support o f a variety of interdisciplinary activities oriented toward the faculty, including the Mind Colloquium and the Dean’s Ethics Committee. Some Medical Center services have specialized units with problems that merit philosophical review, but which are not part of the teaching program in the medical school. The Philosophy and Medicine Program could sponsor special programs which would place a philosopher in these units as part of a research-education effort. For example, at Bellevue Hospital’s Prison Psychiatric Service there has been an informal arrangement in which a philosopher from Programs in Public Philosophy has been conducting a staff conference at the invitation of the unit’s director. The P .P .P . submitted a grant proposal to the New York Council for the Humanities in which the Philosophy and Medicine Program would serve as a co-host with the psychiatric unit to support a full-time philosopher for the year to develop their staff seminar as a philosophical activity. We expect our program to develop a series of such issues-oriented special projects during the next three years. Finally, beyond the precincts of the Medical School, the program has become involved with University initiated efforts to introduce a study of ethical issues into the curriculum of the other health professional schools, beginning with a set of five week courses in the Dental School. We expect that some version of that program, especially our sections on value issues in health care, will become an established part of their curriculum. In four years, our “ am orphous” job description has become well defined. The question no longer is, What can we do? but rather, What must we postpone? If we are still occasionally overwhelmed, it is less by uncertainty than by the press of projects and invitations.

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CAVEAT QUI PRAEMIUM ACCIPERE VULT Bernard H. Baumrin, Ph.D ., J.D.* Department of Philosophy, Lehman College, City University of New York When the decision was made in Spring, 1974, to seek funding for a program in medical ethics by a group from the New York Chapter of the S .P .P .A . we were not confident that we knew what would be the most effective form o f philosophic participation in a medical setting. Thus what we initially needed was maximum flexibility in planning the program after the proposal was funded. This single aspect took over a year and a half of proposal amendment and negotiation. When the initial grant was funded by the New York Council for the Humanities we had retained some flexibility but had committed ourselves on most issues. Nevertheless, there arose in the first year of operation misunderstandings between the Council and the Bioethics Committee, and questions of authority between the Executive Committee of the New York S .P .P .A . and its Bioethics Committee. What the Bioethics Committee was mainly concerned to protect was its planning flexibility and the research freedom and integrity of its four appointed ethicists. It was in the work of the latter that the value o f the program lay and they had to have as much freedom as possible from interference, publicity and premature commitment in order to find the forms in which ethics could best be pursued in medical settings. The ultimate success of the various formats developed was in no small measure the result of partially insulating the ethicists from the non-medical pressure of the actual grantors, of the S .P .P .A ., o f the Bioethics Committee itself, and from the press. All o f this would have been easier if there were truly experimental grants available in philosophy (not just ethics) which permitted researchers to proceed with a minimum of accountability restraints. The demand for pre-description and justification of innovative projects constitutes, without discernible benefit, a form o f prior restraint on their creative development. Some fiscal notes are in order. Had the Research Foundation of City University not advanced the funds for the initial grant, the project might have been forced to terminate after four months because o f unresolved ambiguities about when and why monies were to flow from grantor to grantee. No one embarking on new research should begin under such a handicap if it can possibly be avoided. Second, the fiscal complexity o f operating with 3 or 4 different authorities, though often bewildering, can be carried out with good will and done efficiently if one of the involved institutions is willing to go out on a fiscal limb to facilitate payment and ease the paperwork load. Otherwise the paperwork can become the chief ‘research’ output of at least one of the principal investigators.

* Project Coordinator, 1976-80

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WHAT DOCTORS WILL AND WON’T DISCUSS Sidney Morgenbesser, Ph.D. Department of Philosophy, Columbia University “ There is evidence to show that among physicians in this country the medical paternalist model is a dominant way o f conceiving the physician-patient relationship.” 1The statement is fair enough; its force however is not evident. The author does not claim that it is the dominant model; nor does he consider whether its domination is on the decline. In one area at least— that of medical experimentation - it is. It may have vanished. Not too long ago many doctors claimed that the issues raised by medical experimentation are so complex that those who agree to participate cannot be expected to give informed consent, even if their consent is sought. But few doctors seem to be making these claims today; at least this was the conclusion reached by some of us who have in the last 10 years or so served both as members of the Bioethics Committee of the Society for Philosophy and Public Affiars and as members of various ethics committees in hospitals in New York. Progress has been slow but steady. The various committees have required and succeeded in having the doctors learn to construct understandable consent forms and hence to communicate the relevant inform ation to patients or their representatives. O f course some doctors still claim that the regulations are reducing their areas of freedom and discretion; others resent the perceived implication that they are not to be trusted. But as a first-approximation it may be said that doctors seem to agree that in the area of medical experimentation paternalism by the individual doctor has little role to play and that the regulations have led to dignified and sensible procedures. These issues o f paternalism may not, however, have been settled. In my view the ethics committees may have become too paternalistic, and they ought to be required to cooperate more with patients’ representatives in hospitals, a view which in turn requires hospitals to have more patient representatives than many of them now do have. But I shall not pursue this issue here. Neither shall I raise the question about the role o f the committee that reviews the scientific acceptability o f the proposed experiment. I suspect that establishment medical and statistical views play too strong a role in the decisions reached by these committees. It is glib to argue that as a corrective statisticians and philosophers of science of diverse viewpoints should be members of such committees. But I shall neither try to justify this suggestion nor pursue kindred ones. One reason for silence - 1 have not been a member o f such committees; the other - the worries I have on these issues are not, I think, widely shared and do not count against my original claim that there is much agreement in belief and sentiment about the progress made possible by these committees. Contrary to much recent talk, here at least regulation has not led to strangulation. Allen Buchanan, “ Medical Paternalism ,” Philosophy and Public A ffairs 1 -.A(Summer 1979) p. 370.

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These broad agreements and sentiments were I think evident at the conferences which members of the Bioethics Committee arranged over the last few years and which were attended by various doctors. But some differences did surface at some panels at these conferences which resulted in discussions both fruitful and heated - far more fruitful than discussion at a session about the right to health care arranged by members o f the Committee a few years later. There is I think a moral to be drawn from this contrast. But first a few observations on the earlier conferences. At one session*, we had been discussing procedures followed in experimentation that involve drugs. As indicated there are two committees - one to pass on the scientific acceptability of the proposed experiment, another to consider the ethical tenability of the experiment and the acceptability o f the proposed consent forms. There are no comparable procedures followed as a matter of course in “ novel” forms of surgery, or surgical experiments. At least this was the belief some of us held at the conference, a belief which led to the obvious query, Why shouldn’t committees be instituted to assess novel surgery or surgical experimentation? The doctors, or at least some o f them, thought the question odd. They were not quite sure what the role of such committees would be; others noted that the individual surgeons are not necessarily at liberty (subject to the consent of the patient or his or her spokesman) to try new forms of surgery. They added that in many hospitals the surgeons must report to their colleagues before they try a new form of surgery. It was, however, agreed that procedures are not uniform and that more thought should be given to this problem. Similarly, for the issues about experiments with “ me-too-drugs,” experiments which technically involve new drugs but which do not promise new medical benefits. Since the drugs appear to be medical duplicates o f drugs on the market, th e experimentation with them is troublesome - so many of my colleagues and I claimed. The consent-forms about them are misleading. They describe the projected medical benefits o f the drugs under combination, but do not mention the fact that these benefits are already available from drugs which are not necessarily in short supply on the market. It is not clear why someone should be expected to run personal risks in experiments that don’t obviously increase social welfare. Neither is it evident that these experiments result in proper allocation of time and social resources. O f course, the thought was that these experiments involve a misallocation and can only be deemed warranted after an examination of the interconnection between doctors, hospitals and drug companies. This suggestion o f possible misallocation and a call for more thorough and objective study of these interconnections were further supported by reference to the often noted claim that drug companies will not finance drug experiments on diseases which afflict only a minor part o f the population, unless of course the investment promises to be financially rewarding. More coherent social planning may be needed on grounds of both fairness and efficiency. *[Ed. “ Institutional Settings and Medical Ethics,” M ount Sinai School of Medicine, March 25,1977.]

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These and other comparable queries called aspects of accepted medical practice into question. Some of them were not quite informed enough in the sense that they were supported by shady premises which the doctors noted and corrected. Nevertheless, the doctors were not defensive and were not hostile. They agreed that more thought was required about experiments involving me-too-drugs but no specific recommendations were made. No joint study by doctors and others was envisaged and no future joint action was contemplated. W ithout any followup, I now think these sessions were of limited value. Nonetheless, those sessions were good ones; a later conference on the right to health care was not. A few years ago there was much debate about the right to health care. More recently, the debate about our medical system centers over issues of rationality, among other things, over the rational allocation of resources to be decided, apparently, after a cost-benefit analysis. At a conference which was arranged and attended by some of us of the Society*, we argued that there were muddles here and that the issues about the right to health care cannot be, or at least should not be avoided. The problem of rational allocation of resources between claimants of rights, even competitive ones, is the same problem as the rational allocation of resources among any people who would benefit from them. For example, to increase resources available to medical care at the expense of retirement benefits for members of the Armed Service might be morally acceptable if there was a right to health care and no right to increased retirement benefits. It was further argued that these issues raised problems about the role of the medical profession and the responsibilities of doctors in a decent, if not just society. The thought here was that any decent society would be concerned with the health o f its members and any decent human being would not want to have a special competitive advantage over his fellow citizens in matters of the avoidance of illness and the regaining of health. We agreed that the problem of the rational allocation of resources is one which would have to be faced whatever the medical institutions in a society happen to be, but we tried to rebut what we took to be a currently popular mode of argument. There are many who seem to claim that the issue of the right to health care or its implementation can be decided only after a rational assessment of its costs and benefits. In reply we said: one may as well argue that no one can support the claim that we all have an inalienable right to education unless that claim be supported and accompanied by an econometric and utilitarian model which exhibits the relevant distribution of costs and benefits. Now I readily agree that I and others did not analyze these views with much subtlety and that often I and others were more evocative than analytic. But it must be added that the fault was not entirely ours. The suggestions were treated with hostility right off, at least by some doctors. These were — if I may be permitted to say so — grade-B movie responses to our suggestions. We were accused of being disloyal to Americans. We had little time for analysis; to get a hearing we had to recall traditional views about the role of the medical profession from Hippocrates to our day. *[Ed. “ Value Issues in Cost C ontrol,” New York University-Bellevue Medical Center, May 4, 1979.]

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These were not the only issues raised by us. We also claimed that the current set-up is still unfair to the poor and the aged; often the poor and the aged suffer first when changes in medical institutions or medical benefits are made. We also claimed that national health care is working well in many countries - e.g. in Canada. We noted that there is not much disappointment with the set-up in Canada and evidence to suggest that the National Health Care System in Canada is more efficient than the ones here. We should not have been that sure of ourselves, since at other points in the discussion we had already raised diverse questions about the exact meaning of efficiency and rationality in these contexts. But all in all these suggestions went no place; there was no fruitful interchange and no agreement even about what problems ought to be faced. It would be self-serving to conclude that we made little progress in the session just described because we raised deep moral issues which the doctors tried to avoid. Other issues played a role. It was a mistake to challenge the doctors and hospitals and not consider the role o f the insurance companies who are in part responsible for the burgeoning medical costs and now are claiming the right to “ control” costs in hospitals. It was also a mistake not to begin by considering the merits of alternative plans for new medical arrangements and thereby exhibit some familiarity with these possible alternatives. Perhaps our objectives were not clear - we were at the same time thinking of ideal medical arrangements and trying to suggest immediate changes. And it is quite a shift of intellectual gears to begin with notions of rights and an ideal society and then end up arguing, as we did, for medical insurance on the grounds of efficiency alone. But “ at this point o f time in our history” perhaps that is all we can expect. And so for a while philosophers may very well have to play the economist, hopefully the critical one. Perhaps this schematic tale of two conferences has a cynical (or is it a realistic?) moral: Doctors will react to challenges to their paternalism with more equanimity than to possible challenges to their economic power.

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BIOETHICAL CONSULTATION: A HARD CASE AND A PROPOSAL Steven Wasserman, Ph.D., J.D. Philosopher-Resident, Department of Social Medicine, Montefiore Hospital and Medical Center [Ed. To encourage reflection and to have a sharable record the Bioethics Committee asked the philosopher-residents to make monthly written reports from the start of the project. Although a burden (eventually lightened to bi- or tri-monthly reporting), this task proved its worth in reflections such as the following.] TO:

Members o f the Bioethics Committee of the Society for Philosophy and Public Affairs (New York Chapter), and other concerned individuals

FROM:

Steven B. Wasserman, Philosopher-Resident

CONCERNING:

Activities in Medical Centers Project, 12/77 - 1/78

My activities at Montefiore in December and January were much curtailed, both by the holidays and by a personal experience which has greatly influenced my thinking about bioethics. I relate this experience partly by way o f excusing the limited progress made on the projects outlined in my last report, but mostly by way of defining an area of decision-making to which philosophy might usefully address itself. My father recently underwent an am putation of both his legs at the thigh. He was a victim o f atherosclerosis caused by diabetes. He underwent nine separate surgical procedures in an effort to salvage his legs in the previous two months: three vascular grafts, two follow-up thrombectomies, and four partial amputations. He had been using his legs on borrowed time for eight years: He had the first of four earlier grafts in 1970. He spent the past three months, and one year of the past eight years in hospitals. He has made good progress since returning home last month, and so far all is well. The total cost of his vascular disease has been over $500,000, all but a tiny fraction of which has been paid by private insurance and Medicaid. My father had six different surgeons; four in New York and two in Florida. Prior to each procedure, the surgeons conveyed the same suitably melioristic attitude; not so optimistic as to raise false hopes (or to make them look bad if it failed), but yet not so pessimistic as to raise substantial questions about its advisability. The prognosis, all things considered, was always slightly in favor of the surgery. When the ordeal began, my father was fifty-two and eager to return to his job as a salesman. When it ended, he was sixty, and anxious to have his am putations and to meet the uncertainties of a life, which for all its limited 73

expectations, still seemed well worth living. Toward the end it was I who had to give consent to the procedures: Dad was either unconscious, or too demoralized to think things through. The ordeal presented at four stages a necessity to choose between alternatives that had incommensurable risks and values. No one involved was well equipped to weigh the alternatives, and no one was sufficiently disinterested in the various possible outcomes to make a decision that would affect everyone else. Those immediately involved were Dad and his doctors, his new bride of one year and her daughter with whom he lives in Miami, and his “ old family” which consists of my sister and me, my father’s siblings, and a cousin who is an orthopedic surgeon, all o f whom live in New York. The four principal questions we faced at various stages of the ordeal were: 1) whether Dad should undergo more surgery that might buy more time for his legs in exchange for pain and confinement that grew increasingly onerous, and the risk o f death and psychological injury which increased with every procedure 2) whether a slim chance to save one of his legs so that Dad would be able to stand, and perhaps return to w ork, was worth the time and pain 3) whether Dad should undergo amputations above the knee which were likely to succeed and lead to an earlier release from the hospital, or whether he should first undergo less promising amputations below the knee that would facilitiate prosthesis 4) whether Dad, with a weakened heart, should undertake the rigors and additional therapies required to walk with two completely artificial limbs, or whether he should settle for a less strenuous and less independent life in a wheelchair. Fortunately, it was D ad’s interests, and to a lesser extent, everyone else’s that had to be considered. Had the financial costs been a big factor, the question would either have become impossibly complex or entirely academic. As it was, even tem porary outlays for reimbursable expenses were a severe strain on us all. My father was ambivalent about every question he faced. He was fed up with angiograms, catheters, respirators and constant anxiety. Having been bedridden for so long, he had become partly reconciled to the prospect of never walking again, and he desperately wanted to get out of the hospital as quickly and painlessly as possible. On the other hand, he was determined not to be a “ quitter” ; long years of projecting an image of fortitude to his children and younger siblings had made him a prisoner of his own precepts. More significantly, he was terrified of being a burden to others, and was mindful that the less limb he had, the more of a burden he was likely to be. He wondered whether his new marriage would sustain his new problems. His “ old family” was reconciled to his being confined to a wheelchair. There was much concern for the condition o f his mind - his thought processes had been greatly affected by his medication, and the pain and isolation. The great unspoken fear was that his wife would be unwilling or unable to care for him. She 74

might leave him, and then we would be fully responsible for him. Moreover, the failure o f his marriage would have great emotional repercussions for him. I do n ’t know entirely what his wife and stepdaughter were thinking. They were unaccustomed to such difficult decisions, and perhaps because they haven’t known Dad very long, they felt a little uncertain of their standing. Certainly they had to consider their job situations at busy real estate firms. Their bosses had been patient and generous so far, but it would not persist indefinitely. We for our part were also uncertain of our standing. After all it was they who would bear the day to day consequences o f the decisions. The doctors, D ad’s cousin included, did not want to participate too vigorously in the decision-making, since there were so many non-medical factors to be considered. Physical therapists contributed much in the way of practical advice and offers to facilitate, but of course they could make no forecasts about our ultimate concerns. The decisions to be made at stages 2) and 3) fell more or less on me. After two partial amputations, Dad had lost his left foot but the pre-gangrenous condition in his left leg was not improving. The right leg was not yet infected, but the pressure and temperature in the leg were as low as in the left. He was almost certain to lose the left leg below the knee, surgery was possible though not promising for his left leg above the knee, and the prognosis for his right leg was declining, uncertain, but better than that of the left. Dad told me he was unable to decide what to do - his mind and his will were unequal to the task. He asked me to make the decision with the advice of his doctors and his cousin, and he would ratify whatever I decided. It was an impossible task. What is a proxy supposed to do here? Does he use his own best judgment, or what he conceives his principal’s best judgment to be? Or does he simply choose what his principal would most likely choose had he the will? Does he attem pt to adopt his principal’s present perspective, or his principal’s state of mind at an earlier, less agonizing stage? How much foresight should a proxy try to exercise? Should a proxy consider interests of people other than his principal, most notably the interests of others whom the principal himself would consider? And when the proxy arrives at a basis for deciding, how does he weigh someone else’s fear, pain, hopes and values? I finally decided that he should have a double am putation above the knees. My reasoning, as best I can reconstruct it, and for what it is worth, is as follows: the worst possible outcome for him was that he would die or lose his mind. Additional surgery was the eventuality most likely to bring these outcomes. Therefore, the proper choice was the one that minimized the possibility of additional surgery. The case was one for which a bioethical consultation was indicated: it involved value determinations that are outside medical competence, about which a patient is indecisive, and where those who are best situated to advise him recognized an imperfect coincidence of interests with him and with each other. I think that many, if not most situations involving the terminally ill, the defective newborn, or the disabled who must depend on others would be appropriate for a bioethical consultation under these criteria. I think that a suitably informed and experienced philosopher, social scientist, or clergyperson, would be a valuable 75

resource for the physician in the first instance, and perhaps ultimately for the patient and those concerned with him. Such a consultant would provide an im portant countervailing influence against professional and institutional policies and customs that by their very nature do not take account o f the particular circumstances o f the patient. Moreover, the consultant could greatly help the patient make his choice and the family to determine its responsibility, though great care must be taken that neither of these roles is preempted. There is no reason to suppose that such a resource person would infringe upon the therapeutic relationship; consultation occurs at the request of the physician when he and his patient perceive the patient’s inability to make a choice that is substantially non-medical in the physician’s estimation, and where tre n d s and relatives are not suitably objective by their own estimation. My experience was that despite a strong willed patient and a very involved family, personal value decisions with a medical component were relegated, fa u t de mieux, to physicians who were not notably wise or worldly, and whose mastery o f even the medical component was limited by the uncertainties o f the art. The physician, perhaps as often as not a prisoner of the omniscient image he is trained to cultivate, would welcome the opportunity to share the burden of such decisions with a specialist who has no pecuniary interest in the outcome. In an age where occasions for medical intervention have greatly increased, the traditional therapeutic relationship is not well designed to yield intelligent and humane decisions, especially where the intelligent and humane decision would involve forbearance. Where there is a terminally ill patient whose death would be a relief to the family, it is often uncritical feelings of guilt that prom pt families to endorse feckless intervention, and I suppose that some doctors become unwilling accomplices of the guilt ridden family. As my experience illustrates, a case involving untimely but more or less inevitable disability can bring about the same behavior. When a relatively young person is the untimely victim of a geriatric disease (Is such a disease ever timely?), a sense of cosmic injustice can lead to the same excesses that occur in cases of superannuation. A question which the Bioethics Committee might consider: What would be the appropriate limitations, and the main institutional obstacles, to the utilization of a bioethical consultant? (Ed. The question posed has not been fully considered, but the philosopherresidents have been asked to consult on hard cases before or after decisions by medical staff. A pediatrics resident has urged that philosophers be available for consultation before physicians present treatment options to parents. Clarifying, developing or adding options is work many philosophers would accept; rendering decisions or moral judgments is not. If philosopher-residents have hesitated to offer their services as consultants, it is from fear of being cast in the latter role of secular moral expert and judge.)

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Further Questions Victor Marrow, M. A.* Dean of Continuing Education, Long Island University

Philosophy seems to be the only profession which is proud to raise more questions than it answers. Certainly the Medical Centers Project raises its share of interesting and productive questions. Although I admit to having no answers to these questions, I think it will be useful to articulate and comment on four of them here. 1. A re all philosophers equal? The Bioethics Committee and the medical center representatives at the outset devised an interesting, two-stage method for hiring the four philosophers. First the Bioethics Committee was to screen the applications and generate a list of “ philosophically competent” candidates for interviews. Although the Bioethics Committee would take part in the interviewing and final selecting, the medical center representatives (physicians, administrators and students) were to play the greater part. And that was the method used. W hat’s troubling me is this notion of philosophical “ competence.” Can competence be defined in philosophy as in, for example, medicine? The competence o f a surgeon or a diagnostician can be confirmed by objective methods of testing. This is because there is little or no ambiguity in medicine as to the goal that is to be sought. All competent physicians should come to the same conclusions when confronting the same care. If physicians are o f equal compe­ tence, they should be interchangable in any given case. Is this so in philosophy? Should we expect all “ competent philosophers” to arrive at the same set of conclusions when analyzing the same case? Are philosophers interchangable? Clearly not. Yet, I believe many of the physicians involved in the Project understood “ competence” in philosophy in the same way that the medical profession speaks of a competent physician. They assumed that any competent philosopher confronting the same set o f facts would draw the same conclusions. Therefore, the conclusions articulated by the “ competent” philosopher would have the authority o f Philosophy (capital ‘P ’) behind them. I think that this conception of philosophical competence— fed by the analytical philosopher’s emphasis on “ analytical skills” and “ techniques” —is somewhat misleading. I now wonder if it would have been more difficult to convince the medical centers of the philosophers’ practical worth had it been recognized that able philosophers may draw competing conclusions when examining the same case. It is true that there are certain skills and techniques that analytically trained philosophers must master; the notion o f philosophical competence is unproblematical with respect to these. However, for the ’ Project Co-Director (with William Ruddick) 1976-77

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philosopher, like the novelist or musician, technique and skill are not enough. There is a creative, and therefore personal, aspect to philosophical production which goes beyond competence. That philosophical conclusions are not merely the product o f applying accepted procedures may trouble physicians looking for solutions to “ hard cases.” It remains for philosophers to explain—to health workers and to themselves—how the creative, personal aspect of philosophy fits into the work of the medical centers. 2. A re there new and competing obligations fo r the philosopher in hospitals and other non-academic institutions? I recall Dr. Lois Neumann, director of neonatal intensive care at Bellevue Hospital, asking philosopher-candidates what they would do if they found (what they considered to be) unethical practices within the hospital. An interesting question: What obligation(s) do philosophers incur towards the institution once they become “ insiders” ? I think that there is a “ chilling effect” on free and open discussion of information and cases once one is part o f a “ hospital staff.” As a member of the Medical Centers Project, I have participated in medical staff discussions of cases involving life-threatening decisions. I find that in this context I am extremely reluctant to add anything that might be harmful to the purposes of these discussions, even if I believe my potential contribution to be philosophically sound and im portant. Other philosophers in the Project have experienced the same tendency toward self-censorship—a consequence, I feel, of the obligations incurred by accepting even temporary membership in a new institution. Academic philosophers, o f course, recognize various obligations towards colleagues and university. But these obligations derive support from the philosopher’s belief that the university’s continued existence and health are im portant to philosophy itself. Medical institutions, however, certainly do not exist to promote philosophy. Clearly, philosophers contribute to the work of a medical center because they accept its goals and purposes as worthy of support and believe they should help health care workers where possible. I believe the philosopher’s staff membership in medical institutions constitutes the first modern example of the philosopher, qua philosopher, consciously accepting the goal of furthering the purposes o f another profession. Philosophy has been a fiercely independent activity (in the eyes o f its practitioners, if not of its sociological critics). Philosophers have never felt an obligation to be useful to another profession—however noble its purposes. Dr. Neumann was asking in effect whether philosophers would recognize new obligations which might well conflict with free philosophical inquiry and discussion. This potential conflict between traditional activities and new institutional obligations raises, or should raise, questions and concerns for a profession that prides itself on being self-critical. 3. H ow do philosophers differ fro m clergy in medical centers? In raising my first question above, I claimed that personal values and beliefs enter into a philosopher’s analysis of ethical issues in biomedicine. If so, what then distinguishes philosophers from the clergy in medical institutions?

If there is a clear and definitive answer to this question, it has not been communicated to physicians. Justifiably, they are confused about the difference. Both philosophers and clergy claim (some) expertise in helping the medical staff to clarify ethical problems which arise in their work. Both philosophers and clergy have suggestions for cases involving euthanasia, abortion, allocation of scarce resources, value and quality of life, etc. The clergy have long worked in medical centers; why are philosophers needed now? Two considerations make for a satisfactory answer. First, the clergy claim some “ higher authority.” Many now admit that they have no privileged access to that Authority, but the very assertion of a higher authority inhibits and devalues free, independent and strictly rational examination of difficult issues on the part of patients and health workers. By contrast, the pronouncements of a philosopher carry authority only to the degree that they are supported by reasons that convince his or her audience. Because philosophers take sole responsibility for their thoughts and conclusions, they implicitly invite, if not require, each medical staff member and patient to find their own answers, too. Philosophy promotes rather than stifles discussion. I doubt that many clergy would agree with my account of their influence. But we can hear all sides o f the matter only if the question o f distinguishing philosophers and clergy is raised. It is im portant for health workers and for philosophers themselves that a clear answer be stated. 4. A re philosophers ready to hang out a shingle? W ithout doubt philosophers can help, and have helped, health care workers understand and deal more effectively with ethical issues in medicine. They have aided medical staff confronting complex problems to achieve theoretical clarity, to expose weak arguments, to consider justifications for courses of action initially believed inappropriate, etc. If philosophers can serve these useful functions for health care workers, why shouldn’t they help the public, on an individual basis (perhaps on a fee-for-service basis), with ethical issues confronted in the course of daily life ? The prospect of hanging out the “ Philosophical Consultant” shingle may seem bizarre to most philosophers. But the question remains: If philosophers help medical workers, why do n’t they help others? In fact, one medical resident came close to recommending just such a philosopher-client relation, by proposing that philosophers make themselves available for consultations with residents who are preparing to discuss troubling ethical issues with a patient or family members. The more screamish of our profession should recognize that psychologists, physicians and the clergy already take it upon themselves to advise patients and families at such trying times. Wouldn’t a philosopher be more appropriate and more helpful? At the risk of shocking, I see no objection to philosophers offering their services even to a wider public. Philosophers certainly have much to say about individual rights, personal and social imperatives, and moral principles with respect to topics ranging from marriage and the family to the military draft and suicide. Now that some philosophers have moved beyond the ivy walls of the university, should other philosophers deinstitutionalize themselves altogether?

These are questions, not answers. They arise from the often novel working relations philosophers in the Medical Center Project have brought about. The difficulty or even impossibility o f answering these questions at this stage should not detract from their importance. After all, philosophers are required only to analyze questions, not to answer th em ...a ren ’t they?

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CONCLUDING NOTE

From the outset we have been hard-pressed to know how to evaluate our work in medical centers. In an evaluation plan required by the National Endowment for the Humanities, we proposed a variety of methods (self-assessment in written reports and reviews with members of the Bioethics Committee; site-visits by external consultants and evaluators; statistical analysis of student tests given before and after series o f ethics lectures), as well as two sets o f “ criteria of success:” Internal or institutional 1. invitations from clinical departments initially judged indifferent to the project; 2. appointment of philosophers to previously existing policy and review committees; 3. formation of new committees with the aid and membership o f the philosophers; 4. changes in hospital rules and procedures after discussions in which philosophers had taken an active part; 5. involvement of philosophers in the regular teaching of residents, nurses and medical students; 6. inclusion of philosophers in grant proposals submitted by their host departments or by other researchers, clinicians and administrators; 7. faculty and hospital status, as shown by titles, office space, and support from medical center funds; External, or professional 8. invitations to report on the project from other medical centers or professional groups; 9. publication of articles on issues related to the project in medical, nursing, hospital, and philosophical journals and anthologies; 10. use of the project as a model for medical center projects, in New York and elsewhere. (Five other New York hospitals had already wanted to join our project, but NEH thought we should postpone such expansion until our pilot project at Montefiore and NYU had been well tested.) For the most part these are indices of social acceptance, not of intellectual or institutional change. (In hospitals initially hostile to philosophers, acceptance might count as an institutional change, but our centers were far from hostile.) We rejected as inappropriate or spurious some of the statistical measures on which grantees often base claims to “ institutional im pact,” “ attitudinal changes,” and other causal influences. Even if we could have found better causal criteria, we would not have expected to satisfy them within a year or two: a philosopher’s influence is often more like that of a steady trickle than that of a thunderstorm. After several site-visits in our second year (1977-78), our external evaluators (Prof. Kenneth Schaffner and Dr. Edmund Pellegrino) gave the project a very

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favorable rating on the basis of the criteria we had proposed (with refinements of their own). In the last two years there have been further successes. But the self-confidence (and possible self-deception) needed for novel projects can be easily shaken, as a recent encounter reminded us. When one of these essays was circulated in draft form for comment, some clinicians and others responded with startling indignation. They raised no objection to publication, but they angrily complained that the philosopher had, it now appeared, been “ m anipulat­ ing” them as “ unwitting objects for his investigations.” Even after his careful explanation of the origin and purpose of our project and his essay, they continued to accuse him of “ unethical lack of candor.” They had thought he was a trustworthy, permanent colleague in the center, not a temporary “ investigator.” With support from other clinicians the philosopher rebutted their charges of deception and disloyalty, but was badly shaken by their loss of confidence. Perhaps, as he allowed, he had in haste been insensitive to implicit standards of medical center collegiality. But they, in turn, seemed to misunderstand the nature o f philosophical interests and reflection; otherwise they would not have so persistently confused his work with that of a social science experimenter. Even after four years there is still much to learn about the scope and limits of collaboration between physicians and philosophers. Whatever the occasional shocks, the existence and value o f continued collaboration are, we think, beyond any serious doubt. Some observers worry that bioethics may prove a passing enthusiasm. But so long as medical training and practice remain highly technical, specialized and institutional, there will be a need for “ a philosophic presence” in medical schools and centers. With the information gained by full-time residence, philosophers are uniquely suited to address, as well as raise, the unavoidable issues o f current medical training and practice. Whether Socrates and Hippocrates would have had much to discuss had they met, these essays show that their descendants clearly do.

— WR

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