1
Healthcare Workers’ Duty to
Care and Severe Infectious
Diseases
by
Daniel K. Sokol
A thesis submitted in partial fulfilment of the requirements for the degree of
Master of Science in Medical Ethics.
Imperial College Faculty of Medicine, London
September 2003
2
ACKNOWLEDGEMENTS
The idea for this thesis came to me as I worked as an Intern in Clinical Bioethics at
Mount Sinai Hospital in Toronto, Canada, during the summer of 2003. Mount Sinai
was at the forefront of the battle against SARS, and I thank all the staff members who
recounted their experiences to me. I wish to thank, in particular, Dr Kerry Bowman,
the clinical ethicist at Mount Sinai, who took the time to answer all my questions and
exposed me to the realities of clinical ethics in a most friendly and supportive way.
I also owe thanks to Martin McKneally, a retired surgeon, who commented on my
initial ideas, and to all the research assistants at the University of Toronto’s Joint
Centre for Bioethics, with whom I shared a less than luxurious study and many joyful
moments.
Finally, I wish to thank my supervisor, Dr Piers Benn, for his guidance and
encouragement.
3
ABSTRACT
The recent outbreaks of SARS in 2003 have revived the debate about the limits of the
‘duty to care’. What is meant by the ‘duty to care’? What should doctors do when
the duty to care conflicts with other, personal duties? What are the limits of this duty?
This thesis attempts to answer these questions by delving into the history of medicine
and examining the various conceptual and ethical implications of the duty to care. I
argue that, on its own, the phrase ‘duty to care’ is both vacuous and ethically
dangerous. To be of any use, the concept needs to be fleshed out and the limits of the
duty clearly defined. Drawing on a number of arguments, using versions of virtue
theory, contractualism, and consequentialism, I propose ways to define these limits.
Word Count: 13 050
4
TABLE OF CONTENTS
1.
Introduction
5
2.
The Duty to Care, Past and Present
8
Historical Insights on the Duty to Care
Medical Oaths and Codes of Ethics
8
11
The Duty to Care: Conceptual and Ethical
Considerations
18
Doctors as Members of Two Communities
The Duty to Care and the Four Principles of Biomedical Ethics
The Asymmetry Between Patients and Doctors’ Autonomy
The Virtues of Patients and their Duty to Care
18
19
23
24
The Dangers and Limits of the Duty to Care
29
SARS in Toronto and the Dangers of the Duty to Care
The University of Toronto’s Joint Centre for Bioethics Report
on SARS and its deficiencies.
The Duty to Care as a Vacuous Concept
Defining the Limits of the Duty to Care
29
Conclusion
47
Bibliography
49
3.
4.
5.
31
35
39
5
CHAPTER 1
Introduction
In the city of Toronto, Canada, one can buy T-shirts saying ‘I survived SARS, West
Nile, Mad Cow, SARS (again!)’.
Two of these lethal afflictions are emerging
diseases, discovered only in the last twenty years; the other appeared for the first time
in North America in 1999. Yet thirty years previously, in 1969, US Surgeon General
William Stewart confidently announced to congress: ‘it is time to close the book on
infectious diseases’.1 The emergence of new, highly virulent pathogens and the rapid
transfer of disease from one continent to the next has meant that hitherto unaffected
areas are at risk of outbreaks of severe infectious disease. Doctors and nurses,
accustomed only to diseases prevalent in their geographical area, are now
occasionally faced with tropical or exotic pathogens, of which little is known. In
1988, John Arras wrote that ‘the current generation of physicians has experienced
very little exposure to serious occupational risk’.2 This is bound to change. Major
Western hospitals have in recent years accommodated patients with HIV/AIDS, Ebola
Haemorrhagic Fever, Lassa Fever, West Nile Virus, SARS and a range of other lethal
pathogens from Africa and Asia.
Quoted in Mirsky, S. (1997), ‘Home, Bacteria-Ridden, Home’, Scientific American, July 19.
Available. Online. http://www.sciam.com/article.cfm?articleID=0009078D-A418-1C769B81809EC588EF21&ref=sciam
2
Arras, J. (1988), ‘The Fragile Web of Responsibility: AIDS and the Duty to Treat’, Hastings Center
Report, April/May, p. 10.
1
6
Doctors and nurses have more stringent obligations of beneficence than most. By
virtue of their profession, they owe duties to certain persons (‘patients’) that teachers,
bankers, philosophers or truck-drivers have no obligation to help. The term ‘duty to
care’ refers to these special obligations. Part of this duty is to treat patients in spite of
the inherent dangers associated with close physical contact. There are, however,
limits to this duty. The doctor of a patient in desperate need of a kidney is under no
obligation to donate his own, for example. He may, of course, choose to do so, but
his act will be considered beyond the call of duty, or
- as philosophers say –
supererogatory. In short, doctors have an obligation to treat their patients within the
bounds of reason. This last clause is problematic, as the bounds of reason are not
clearly delineated. They are defined by personal and contextual factors. Individual
doctors attribute different strengths to the moral duty to care, and a doctor working in
the Democratic Republic of the Congo might be willing to incur more risk than one
working in Oxford. Nevertheless, most of the time, doctors believe their work falls
within the bounds of reason.
Things are not quite so clear when patients contract unusual infectious diseases with
high lethality rates.
Historically, healthcare personnel have often been the first
victims of epidemics (and, indeed, this is also true of the 2003 SARS epidemic in
Toronto). Doctors are usually aware of the perils of treating infected patients. The
appearance of an exotic, highly virulent disease therefore challenges doctors to
question their interpretation of the duty to care, in particular the limits of the duty.
This was apparent in the HIV/AIDS epidemic of the 1980s in the United States, and,
more recently, in the 2003 SARS outbreaks in Toronto when a number of healthcare
workers refused to treat afflicted patients on the grounds that they presented too great
7
a danger. More than self-preservation, many doctors with partners and small children
at home were reluctant to expose their loved ones to the disease. In such situations,
which duty should prevail – the duty to patients, to children, to oneself? Which
carries more moral strength?
How can this tension between professional and
personal duties be reconciled, if at all? This is a thorny ethical question, which - apart
from a post-AIDS spurt - has received relatively little attention from medical ethicists.
Although outbreaks of exotic, infectious diseases in the West are still a rare
occurrence, we can reasonably expect that this will change. Air travel, population
movements, drug resistance, global warming and a host of other factors will ensure
the dissemination of virulent pathogens around the globe. With a likely increase in
frequency comes a pressing need to examine the nature and limits of the duty to care,
as the result will ultimately affect doctors, nurses and patients alike. This thesis is a
modest attempt to fill this need. It critically evaluates the concept of the duty to care,
and suggests ways to resolve some of the ethical problems associated with it.
8
CHAPTER 2
The Duty to Care, Past and Present
Historical Insights on the Duty to Care
In 166 AD, an epidemic of smallpox struck Rome. Galen, who had already required a
reputation for his dissections, fled the city.3 In classical Greece and Rome, doctors
carefully selected their patients, choosing those that would most enhance their allimportant reputation.4 The idealized tenets of the Hippocratic Oath are, according to
Amundsen, ‘often inconsonant with the larger picture of Greco-Roman medical
ethics’.5 The abandonment of patients during epidemics was not necessarily frowned
upon by fellow doctors or, for that matter, the population at large. Indeed, one treatise
in the Hippocratic Writings urges doctors to refuse treating unsalvageable patients. In
a chapter entitled ‘The Science of Medicine’, the author asserts that part of medicine
consists in ‘the refusal to undertake to cure cases in which the disease has already
won the mastery, knowing that everything is not possible to medicine.’6 7
During the Middle Ages, however, chroniclers started to criticize doctors for
abandoning patients during severe and widespread epidemics.
When the plague
reached Venice, for example, doctors fled in flocks to avoid contagion. In 1382, the
problem had reached such proportions that the city passed a law forbidding doctors to
Nutton, V. (2002), ‘Logic, Learning and Experimental Medicine’, Science, 295, 5556, 800-801.
Amundsen, D. (1978), ‘The Physician’s Obligation to Prolong Life: A Medical Duty without
Classical Roots’, The Hastings Center Report, 8, 4, 23-31.
5
Amundsen, D. (1978), p. 27.
6
Lloyd, G. (ed.) (1983), trans. Chadwick, J. and Mann, W., Hippocratic Writings, London, Penguin, p.
140.
7
Due to Hippocrates’ fame, many Greek medical texts were attributed to him. It is therefore
impossible to know for certain whether or not he actually wrote this.
3
4
9
flee in times of plague, and other major European cities followed suit shortly
thereafter. 8 The very existence of these laws indicate the extent of the practice.
Those who did stay did not always do so on ethical grounds. Some were bound by
their religious beliefs to remain with their patients, others were motivated by fame and
respect, others still by the financial incentives the city officials offered them. In
exchange for their medical services, these ‘plague doctors’ were given homes and
generous salaries.
Whatever the reason, treating plague patients was extremely
hazardous, and the risk was not confined to the then unknown Yersinia Pestis. The
prolonged contact with victims and their association with the upper class made
doctors potential scapegoats - alongside beggars and prisoners - for the general
population. In 1468, following the end of the plague in Parma, Italy, doctors and
medical workers were arrested and imprisoned by the authorities, accused of murder
and other crimes, and other examples of doctor-bashing throughout the medieval and
early modern period abound.9
When the Plague hit London in 1665, the majority of the city’s doctors - the great
Thomas Sydenham included – fled the city. Again, similar examples of doctors
fleeing afflicted cities are easily found, right up to modern times. I have, so far,
offered a one-sided account of doctors’ responses to epidemics throughout history.
There is no doubt that many doctors and nurses remained by the bedside irrespective
of personal risk.
Shortly before passing away, a patient at a Toronto hospital
consulted the medical ethicist about an event that had plagued her for over 50 years:
in 1942, the patient, Eleanor, had been posted as a military nurse in Penang,
8
9
Zuger, A., Miles, S. (1987), ‘Physicians, AIDS, and Occupational Risk’, JAMA, 258, 14, p. 1925.
Fabre, G. (1998), Epidémies et Contagions, Paris, PUF, 98-101.
10
Malaysia.10 The Japanese Imperial Army was swiftly approaching, and hospital staff
were asked to evacuate the hospital. All ambulatory patients and staff were to walk
11 miles over difficult terrain to be picked up by British naval ships. The 126 nonambulatory patients had no choice but to remain in the hospital. The usual practice
for the Japanese Army was to kill the bed-ridden soldiers with bayonets, and either
kill or imprison the rest. The moral dilemma for Eleanor was between saving her own
life and caring for her patients. The vast majority of nurses, including Eleanor, left
the hospital, but two stayed behind with their patients.
Another notable and tragic example is the 1976 outbreak of Ebola in Yambuku, a
small town in the Democratic Republic of the Congo (DRC), where 11 of the 17
hospital staff died from the disease. When Ebola hit Kikwit General Hospital (DRC)
in 1995, however, hospital personnel were not so devoted, no doubt remembering the
events of Yambuku. Tom Ksiazek, of the Centers for Disease Control, arrived at the
hospital to find 30 expiring patients, left alone amid rotting corpses, some even
sharing beds with the deceased.11 All the doctors and nurses had fled. The bottom
line, it seems, is that history provides little guidance as to what constitutes the ‘duty to
care’. Daniel Fox writes:
Much of the evidence about physicians abandoning patients during epidemics,
when read in context, furnishes no proof that such conduct violated prevailing
ethical norms.12
Doctors throughout history largely defined the nature and limits of the duty to care
according to personal motives and beliefs, rather than strict professional prescriptions.
10
Bowman, K. personal communication, July 2003. Henceforth, we shall refer to this episode as the
‘Nurse Eleanor story’.
11
Virus, BBC Radio 4, March 9, 1999.
12
Fox, D. (1988), ‘The Politics of Physicians’ Responsibility in Epidemics: A Note on History’
Hastings Center Report, 18, 2, p. 6.
11
But what did these prescriptions actually require of doctors? What do medical oaths
and codes of ethics have to say - if anything - about the duty to care?
Medical Oaths and Codes of Ethics
Medical oaths and codes of ethics might shed further light on the duty to care. Both
share the common purpose of exposing a code of conduct designed to guide
practitioners in their day to day practice of medicine. Today, around half of medical
students in the United Kingdom and the United States take an oath at graduation.13
The value of such oath-taking has been the subject of considerable debate recently,
and many medical schools have devised new or modified versions of oaths to better
reflect the current ethical and medical climate.14
The Hippocratic Oath - whose authorial and chronological controversies need not
concern us - is silent about the limits of the duty to care. The most pertinent line is:
‘Whatever houses I may visit, I will come for the benefit of the sick […]’.15 It does
not specify whether there is any obligation to enter the house in the first place. The
Prayer of Maimonides is also often recited by medical graduates but, like the
Hippocratic Oath, it offers little guidance on the limits of the duty to care.16 One part
reads: ‘Thou hast chosen me to watch over the life and health of Thy creatures’.17
Patients are thus creatures of God whose life the doctor must protect. This, however,
does not imply that the duty to care is absolute, as all other persons – including the
Hurwitz, B., Richardson, R. (1997), ‘Swearing to Care: The Resurgence in Medical Oaths’ British
Medical Journal, 315, 1671-1674.
14
Moscrop, A. (2003), ‘Is it Time to End Taking Oaths?’ Student British Medical Journal, 11, 133-134.
15
Edelstein, L. (1943), ‘The Hippocratic Oath: Text, Translation and Interpretation’ Bulletin of the
History of Medicine, supp. 1, p. 3.
16
Moses Maimonides was a 12th century Jewish philosopher and doctor. The Prayer, however, is
believed to have been written by Marcus Herz, a German doctor living in the 18 th century. See Nevins,
M. ‘Did Maimonides Write “The Physician’s Prayer”?’ Online. URL:
http://www.apfmed.org/chevra/maimon.htm
13
12
doctor and his loved ones – are also creatures to be protected from illness. The doctor
would be justified in refusing to treat patients if he truly believed that this might
endanger himself or the lives of others.
Although the Hippocratic Oath and the Prayer of Maimonides do not specify the
limits of the duty to care, both clearly urge doctors to devote themselves to the art of
medicine and to the welfare of the patient. These two documents, then, express ideals
to which doctors should aspire, yet we do not know the extent to which doctors
adhered to these exhortations, nor do we know for certain how prevalent oath-taking
was among doctors. It would be unwise to extrapolate the values of two doctors,
however respected, to reconstruct dominant beliefs among the medical profession.
The Hipprocratic Oath, the Prayer of Maimonides and a historical glance at the
attitudes of doctors during epidemics have so far provided few insights into the nature
and limits of the duty to care. Doctors, it seems, have interpreted the duty in diverse
ways.
Religion, financial gain, reputation, personal character, social context,
geographical location, severity and nature of disease, the climate of fear - these are all
influential factors in doctors’ decision to treat, perhaps more so than historical period.
For most of Western history, any person could call himself a ‘doctor’. Up until the
Medical Reform Act of 1858 in England and state licensing during the 1880s in the
United States, the title ‘doctor’ or ‘physician’ was not strictly regulated. 18 Newly
created Societies and Colleges of medicine, which mostly appeared in Europe and
North America from the 17th to 19th century, developed professional codes of conduct.
Like oaths, however, one can object that codes are not representative of doctors
17
Herschel, A. J. (1982), Maimonides, translated by Joachim Neugroschel, London, Faber.
13
generally, but are motivated by the profession’s desire to gain or retain status. Zuger
and Miles, for example, write that the American Medical Association’s (AMA) first
code of ethics in 1847:
[…] probably owes more to a determination to establish honor and prestige of
the profession than to physicians’ actual abilities, at this time, either to
understand or cure epidemic diseases.19
Veatch, however, considers codes a useful insight into the ‘basic ethical views of the
organizations that have endorsed them’.20 Codes differ from oaths in that they are
generally far more comprehensive and specific than the virtue-oriented pontifications
of oaths. Whereas oaths focused on honour, devotion, virtue and good character,
reflecting the crucial importance of reputation to a successful medical career, codes
represent a more pragmatic need for ethical guidance. Although still general, a code’s
rules target specific concerns encountered by doctors at the time of composition. As
such, I consider codes more useful than oaths in establishing the true ethic of modern
doctors.21
In the aforementioned AMA code of medical ethics, written in 1847, one reads
[…] when pestilence prevails, it is their [doctors’] duty to face the danger, and
to continue their labors for the alleviation of the suffering, even at the jeopardy
of their own lives.22 (emphasis added)
This unprecedented call for self-sacrifice during epidemics can be attributed to two of
the main goals of the newly founded AMA - the drawing up of standards for medical
education and the improvement of public health - as well as a desire for public
Lennon, T. (2002), ‘If it walks like a quack and quacks like a quack…’. Cl@ssmate Online. URL.
http://ink.news.com.au/classmate/takchall/quackery/tkcharc_quackery_intro.html
19
Zuger and Miles, p. 1926.
20
Freedman, B. (1998), ‘Health Professions, Codes, and the Right to Refuse to Treat HIV-Infectious
Patients’ Hastings Center Report, April/May, p. 25.
21
By modern, I mean after the establishment of medicine as a regulated profession, so around the 17th
and 18th centuries.
18
14
respect.23 It is notable that this passage was removed in 1957, when the code was
shortened. When AIDS emerged in North America in the early 1980s, the AMA
issued a written statement:
If the health professional is unable to care for a patient with AIDS, that
individual should ask to be removed from the case. Alternative arrangements
for the care of a the patient must be made.24
This is far removed from the fearless and altruistic spirit of the original 1847 version!
A year later, in 1987, the AMA modified its statement, making clear that doctors were
required to treat seropositive patients.
According to the General Medical Council (GMC) of the United Kingdom, the first
duty of a registered doctor is to ‘make the care of your [the doctor’s] patient your first
concern’.25 This does not necessarily mean that a doctor must treat any patient that
presents himself, but rather that he must at the very least refer the patient to another
doctor. As long as this is done, refusal to treat is permitted. But what if no one else
can treat the patient? What if a patient is in urgent need of a lung, and the only person
who can save his life is the doctor? As his first concern, should the doctor donate one
of his lungs to the patient? Surely not. The GMC’s dictum, although applicable as a
general guideline, is too idealistic to define plausible limits to the duty to care. To
make the patient a doctor’s ‘first concern’ is, stricto sensu, to place him above all
other considerations, including the doctor’s own well-being.
This is clearly too
demanding a duty.
22
American Medical Association (1871), Code of Ethics Adopted May 1846. Philadelphia, Turner
Hamilton, p. 32
23
Podraza, A. (2003), ‘Founding of the American Medical Association’ Online. URL.
http://www.ama-assn.org/ama/pub/article/1916-4493.html
24
American Medical Association, Council on Ethical and Judicial Affairs (1986), ‘Statement on AIDS’.
15
A booklet entitled ‘Serious Communicable Diseases’, also published by the GMC,
asserts that ‘all patients are entitled to good standards of practice and care from their
doctors, regardless of the nature of their disease or condition.’ (emphasis added)
Nevertheless, two paragraphs down, one reads the following: ‘you should always take
appropriate measures to protect yourself and others from infection’. 26 These two
statements could, in certain circumstances, be contradictory, as it is conceivable that
the only guaranteed way to protect yourself and others from infection is by not
approaching the infectious patient. This would be the case if a poorly equipped, rural
hospital admitted some highly infectious Ebola patients requiring immediate care.
The doctor would be torn between his duty to treat the Ebola patients with his duty to
protect himself and the other patients from infection. As the only doctor in the
hospital, the GMC’s instructions would provide little guidance on which duty should
prevail.
The International Code of Medical Ethics, written by the World Medical Association,
states that ‘a physician shall owe his patients complete loyalty’ but that ‘whenever
examination or treatment is beyond the physician’s capacity he should summon
another physician who has the necessary ability’ 27 But what is meant by ‘capacity’?
Does it refer only to clinical abilities, or can it also incorporate emotional factors? If
the latter, then how emotionally distraught must the doctor be to abrogate his duty?
And, again, what if there is no other physician to take over the patient’s care? In short,
this rather vague statement fails to illuminate the limits of duty to care. This appears
to be the case across the board; Zuger and Miles assert that no modern codes of ethics
25
General Medical Council (1995), Duties of a Doctor. Online. URL. http://www.gmcuk.org/standards/default.htm
26
GMC (1997), Serious Communicable Diseases, London, GMC, p. 2.
16
(at least in the United States) address the issue of doctors’ obligations to patients in
the face of severe personal risk.28
Our attempt to elucidate the nature and limits of the duty to care through the lens of
medical history and modern codes of ethics has revealed little. The evidence of
history is too inconsistent to draw any clear conclusions, apart from the one drawn
previously: that interpretations of the duty itself were variable. Codes and oaths,
perhaps reflecting this plurality, are usually vague and non-committal in their
discussion of the limits of the duty. As a result, we cannot say with any confidence
that doctors in place X at time Y interpreted the duty in such-and-such as way. The
heated debate on the duty to care which followed the emergence of HIV/AIDS and,
more recently, SARS is testimony that this discord holds true even in modern times.
The increasingly frequent appearance of exotic and emerging pathogens in Western
hospitals calls for a detailed examination of the complexities of the duty to care. The
end result must be a set of guidelines for healthcare workers that are mutually
acceptable to doctors, nurses and patients. This requires an analysis of the ethical
dimensions of the duty, as well as empirical work designed to gather the beliefs and
opinions of doctors on the subject.
Empirical studies will allow us to unearth not only the attitudes of doctors vis-à-vis
the duty, but also the reasoning underlying their beliefs. Asking doctors how they
interpret the duty, how they balance it with other duties, and why they rank the duties
the way they do will provide useful information on the current understanding of the
duty among doctors. In this thesis, I argue that members of the public should also
27
International Code of Medical Ethics, World Medical Association. Online. URL.
http://www.bioethics.com/code_intercodemedeth.htm)
17
have a say in defining acceptable limits to the duty to care. I call for a dialogue
between the general population and healthcare professionals. This is, to my mind, the
first step in trying to establish clear and acceptable guidelines on the requirements of
the duty. However important, the empirical dimension is beyond the scope of this
work. We shall focus instead on the ethical and conceptual difficulties associated
with the duty to care.
28
Zuger and Miles, p. 1926.
18
CHAPTER 3
The Duty to Care: Conceptual and Ethical
Considerations.
Doctors as Members of Two Communities
All persons belonging to a community have duties towards others; duties dictated by
the laws of the community itself, but also by the prevalent common morality. I have,
for instance, a duty to keep promises, not to harm others, to respect the laws, and so
on. Indeed, the concept of duty is closely linked with the language of rights, both
legal and moral. If a person possesses a right, others have a corresponding duty not to
infringe it. The right to life, for example, entails a duty not to kill.
Doctors, although belonging to their own professional community and adhering to its
set of rules, are also part of the broader community, and therefore subject to the same
rights and duties as other members. This is of course true of all the professions, and,
taken sufficiently far, each individual can be said to constitute his own idiosyncratic
community, possessing its own beliefs, moral rules and even language. But, for our
purposes, we shall distinguish between a doctor’s professional rights and duties and
his personal ones.
The two spheres of obligation, professional and personal, are both separate and
overlapping. They are separate in that the obligations of a doctor towards his patients
gives him rights that other non-medical members of the society do not possess, such
as opening someone’s belly to remove an appendix. The spheres are overlapping,
however, in that his role as a doctor does not completely absolve his responsibilities
19
as a member of the broader community. The immunity from sanction is specific, not
general. A gynaecologist may legitimately examine intimate parts of his patient, but
cannot drive his car beyond the speed limit, or steal apples from the market stall.
With the acquisition of additional duties and rights conferred by the profession, the
doctor also accepts to relinquish certain rights enjoyed by others. By entering into the
profession, a doctor agrees not only to abide by new rules but also to accept dangers
that would be unacceptable to most.
Following Sumner and Ross, I believe that both rights and duties are not absolute.29
Rights have different strengths, and duties are prima facie (i.e. binding unless
conflicting with other prima facie duties). This thesis deals with the ethical dilemmas
created when professional and personal obligations clash, when a doctor is torn
between his duties to his patients and his duties to himself or to his family. Such
conflict is particularly apparent during epidemics of severe infectious disease, when
the line between everyday risk and exceptional risk is transgressed. To resolve this
conflict, or at least to attempt to do so, we shall need to examine the duties of doctors
to their patients and - more controversially - the duties of patients to doctors.
The Duty to Care and the Four Principles of Biomedical Ethics
In Chapter 2, we concluded that the ‘duty to care’ was, on its own, a nebulous concept.
Fleshing out the concept of the duty to care is no easy task. Like the four principles
of Beauchamp and Childress, the content of the duty cannot simply be listed.30 The
prima facie quality of the duty requires awareness of context and of the relative
Sumner, L.W (2000), ‘Rights’ in La Follette (ed.), The Blackwell Guide to Ethical Theory, Tyne &
Wear, Blackwell.
Ross, W.D. (1930), The Right and the Good, New York, OUP, 2002.
30
Beauchamp, T., Childress, J. (2001), Principles of Biomedical Ethics, 5th Edition, New York, OUP.
29
20
strengths of competing duties. The comparison between the duty to care and the
principles of biomedical ethics is illuminating, as it highlights some of the conceptual
difficulties of the duty to care.
The four principles have been criticized for their lack of substantive content. Gert and
Clouser have called the principles no more than ‘checklists of moral concerns’.31 Yet
if the four principles are vacuous, then the ‘duty to care’ is even more so, as it
encompasses at least three of the principles (possibly not the principle of Justice, as
the duty is patient-centred).32 It is not surprising, then, that the phrase is seldom used
by medical ethicists, who resort instead to more specific rules and duties to underpin
obligations. From 1975 to 2003, no article has included the phrase ‘duty to care’ in its
title in the Journal of Medical Ethics, and the Journal of Medicine and Philosophy has
no results under ‘duty’ in its 25-year subject index, and only 6 articles under ‘care
theory’. 33 The definitional vagueness of the term renders its use confusing and
unhelpful.
If rules are generated by principles, then principles are generated by the duty to care.
This could be represented diagrammatically as follows:
Gert, B., Clouser, K.D. (1994), ‘Morality vs. Principlism’ in Gillon, R. (ed) Principles of Health
Care Ethics (Chichester, Wiley), p. 252.
32
The principle of Justice could also be included, however, as priority choices among patients are often
made by doctors . A surgeon, for instance, might be faced with a person with appendicitis and one
with an open bone fracture, both needing urgent treatment. The surgeon will then make a choice based
on need and benefit. These are often referred in the literature as ‘microallocation’ issues.
31
21
Duty
Principles
Rules
Duty to Care
Beneficence
Non-Maleficence
Respect for Autonomy
Gain informed consent
Tell truth
Respect confidentiality
Communicate well
Etc.
The duty to care encompasses the principles and specified rules. The link between
principles and rules will be similar to that between principles and the duty to care.
The categories will adjust mutually using a Rawlsian reflective equilibrium until a
satisfactory equipoise has been reached. One’s interpretation of the duty to care will
therefore depend on one’s personal ‘specification’ – as described by Richardson - of
the principles and their relationships to rules. 34 By ‘specification’, I refer to the
‘filling in’ of categories through casuistry to provide practically useful content. The
duty to care, therefore, is subject to considerable fluctuations based on personal
interpretation. It is not an objective, unchanging, yardstick that can be used to beat all
considerations into submission. One cannot give a solid answer to ‘what is a doctor’s
duty to care?’ without discussing our position vis-à-vis the lower branches of the tree.
The phrase ‘duty to care’ is elliptical; one cares about something or someone. To
whom, exactly, is this duty owed? I have assumed that a doctor owes this duty to his
patients. This explains why the principle of Justice (at a societal level), which is
concerned with the fair allocation of scarce resources, lies outside the scope of the
duty to care. But, on reflection, this assumption is based on an interpretation of the
22
doctor as part of only one community, and a one-sided one at that. A weakness of
both the duty to care and the four principles is that they focus primarily on patients,
ignoring an entire side of the patient-doctor interaction. A further problem is that the
appeal to the duty to care fails to consider the holder of the duty as a person
possessing a much broader set of duties (and rights), some of which may conflict with
one another. This plurality of duties cannot be ignored in favour of a monolithic duty
to care. A more complete diagram might look like this:
Duty to care
Patients
Non-Patients
Strangers
Principles of Medical Ethics
Family
Friends
Animals
Ethical principles
All persons, then, have a duty to care but healthcare workers differ in that they have a
special duty to a group whose members are, to most others, ‘strangers’. Doctors and
nurses owe a greater duty of beneficence to patients than the average person. They
must take care of them in times of illness. I, as a humble student, do not. So,
although there is arguably a duty of beneficence to both patients and non-patients, it is
a more stringent requirement in the first group than in the second. The principles
deriving from our duties to the various categories (patients, friends, family, animals,
etc.) might be similar in nature, but will invariably differ in strength.
34
Richardson, H. (2000), Specifying, Balancing, and Interpreting Bioethical Principles’, 25, 3, 285-307.
23
The Asymmetry Between Patients and Doctors’ Autonomy
H.E. Emson (1992) has pointed to the asymmetry between the rights and duties of
doctors and patients. 35 Patients have a plethora of rights and few duties, whereas
doctors have a multitude of duties and comparatively few rights. This asymmetry is
partly explained by the difference in social status between the two agents, and the
mentally or physically weakened state of the patient. The doctor-patient interaction is
very different from the exchange between two friends in a pub. Yet this cannot totally
account for the discrepancy between the richness of patients’ rights and the paucity of
their duties. I believe an explanation lies in the recent predominance of patient
autonomy or, in the parlance of principlism, the principle of respect for autonomy.
The shift from a largely paternalistic model to an autonomy model, which started
roughly in the 1960s, has empowered the patient by giving him an authoritative voice
in medical decision-making. The ubiquitous paternalism prevalent throughout the
history of Western medicine is now confined to specific situations when the patient is
not substantially autonomous. The word ‘paternalism’, usually synonymous with
strong paternalism, today verges on the taboo. With this newfound empowerment
came a corresponding loss of power for doctors, who became inundated with
institutional rules and regulations protecting patients’ rights and acting as a barrier
against litigation. As McKinlay argues, this change is the direct result of the growing
bureaucratization of medicine, which has lead to a decrease in the freedom and
autonomy of the medical profession and its practitioners.36
Emson, H.E. (1992), ‘Rights, Duties and Responsibilities in Health Care’, Journal of Applied
Philosophy, 9, 1, 3-13.
36
Hafferty, F., McKinlay, J. (1993), The Changing Medical Profession, New York, OUP, p. 15.
35
24
The current patient-centered climate has obscured the rights of healthcare
professionals, often reducing them to mere service providers. The consumer (or
informative) model of the doctor-patient relationship views doctors as little more than
technicians, whose role is to provide information and to satisfy the patient’s desires.37
The medical transaction becomes similar to the purchase of a product. I believe that
the invocation of patients’ rights should be balanced with the rights of doctors, and
that the principle of respect for autonomy should be considered from the viewpoint of
both patient and doctor. Doctors often wear a number of incompatible hats - doctor,
spouse, parent, etc – and this plurality of roles must be acknowledged. It is ludicrous
to expect doctors to put their patients’ lives ahead of their own, as the AMA realized
after initially espousing this unrealistically demanding philosophy. When, in the story
of Nurse Eleanor, the non-ambulatory patients in the military hospital found out that
the Japanese were coming, they told the medical staff to leave at once. Some asked
for hand grenades, vowing to fight to the end. These patients, aware of the significant
danger to the medical staff and the futility of all treatment, did not consider the duty
to care to extend to such situations. Of course, this is an extreme example, but it
shows that patients can - and, indeed, should - acknowledge the limits of a healthcare
professional’s duty to care. A person’s right to treatment does not trump another
person’s right to self-preservation.
The Virtues of Patients and their Duty to Care
Whereas much has been written on what constitutes a good doctor, little attention has
been given to the good patient. Pellegrino and Thomasma, in For the Patient’s Good
37
Hope, T., Savulescu, J., Hendrick, J. (2003), Medical Ethics and Law, London, Churchill
25
(1988), devote a chapter to the ‘Good Patient’.38 ‘Patients’, they write, ‘must relate to
physicians in all of the virtuous ways that govern human interrelationships and social
conduct.’39 The authors identify four key virtues for the good patient: truthfulness,
compliance, tolerance and trust.
The virtue most pertinent to our discussion is
tolerance. In their discussion of tolerance, Pellegrino and Thomasma mention the
patients’ need to understand the limitations and fallibility of medicine, and to care for
the well-being of their fellow patients.
It seems to me that the virtue of tolerance also requires patients to acknowledge the
fears and concerns of healthcare workers in the face of severe risk. When these fears
reach such a level that medical staff are worried for their life or that of their loved
ones, the virtuous patient ought to allow them to step down from their role as carers.
The patient is entitled to ask for a replacement who is less anxious or prone to panic,
but he cannot force another person to undergo extreme stress against his wishes. This
shows compassion for the healthcare worker whose life is made miserable by his
obligation to treat, as well as consideration for fellow patients whose care might be
affected by the terrified nurse of doctor.
The situation is more complicated if there is no one else to replace the dismissed
doctor. What if all other doctors have been dismissed by their virtuous patients and
only one equally terrified doctor remains? Should he be obliged to treat the highly
infectious Ebola patients, who are coughing and sneezing and bleeding from every
orifice? The answer depends, at least in part, on the actual risk to the doctor and the
potential benefit that his presence will bring to the patients. If the actual risk of
Livingstone, 54-55.
26
serious illness or death for the doctor is 1% and the benefit of his treatment is that ten
patients - who would otherwise die - recover fully, then I would argue that he has an
obligation to remain. If, however, the lack of protective equipment means that his
chance of infection is 70% and there is no, or a trivially small, benefit to his patients
(as is often the case with Ebola), then he may justifiably abandon his doomed patients.
No virtuous patient, aware of the high risk and the futility of treatment, would force a
doctor to care for him in such circumstances. Patients too have a duty to care for
healthcare workers. Part of this duty is not to require doctors to transcend the bounds
of reasonable risk during treatment, and to respect and acknowledge their roles
outside the realm of medicine.
How much of a threat to life must there be to justify infringing the right to treatment?
The Nurse Eleanor story is an example where the threat is maximal, but with
infectious diseases the severity of the threat ranges from trivial to considerable.
Quantifying the danger is difficult, especially when the disease is newly identified,
and the case-fatality rate and mode of transmission are unknown. The climate of fear
that invariably accompanies epidemics adds to the confusion, although I believe it
should not form part of the calculus used to establish the likely threat to medical staff.
Members of the public may be terrified of a disease which, to medical professionals,
is in fact quite harmless. The level of societal panic is thus not necessarily linked to
the severity of a disease. The historian Paul Slack writes:
So superficial a feature as the symptoms of an infection may have profound
social and intellectual effects: the physical horrors of plague, syphilis and
cholera account in large part for the revulsion which has given them a leading
place in the history of epidemics (in contrast to influenza, for example) 40
Pellegrino, E., Thomasma, D. (1988), For the Patient’s Good, New York, OUP, 99-110.
Pellegrino and Thomasma, p. 107.
40
Slack, P. (1992), Epidemics and Ideas, Cambridge, CUP, p. 8.
38
39
27
The duty to care may be annulled by sufficient health risk to the doctor and his loved
ones, not by a loss of reputation, status or even by stigmatization, unless the latter
may result in significant harm to the doctor or his family. We shall examine the limits
of the duty to care in more detail in the next chapter.
The justified abandonment of patients by doctors, it can be argued, will result in the
harm or even death of these patients. Besides, public trust in doctors will diminish as
people realize that they might, as soon as the risk reaches a certain level, be left on
their own, like the 30 forsaken patients at Kikwit General Hospital during the 1995
Ebola epidemic. There is little doubt that patients afflicted with, say, Ebola will die
without medical care. The patients at Kikwit also died alone, abandoned by medical
staff as well as by their frightened or deceased relatives. So tragic is the situation that
it seems counterintuitive to justify the actions of the nurses and doctors. Yet before
passing judgment, it might be useful to compare this with another hypothetical
situation.
If a swimmer in an isolated but supervised beach starts drowning fifty yards from the
shore, it is reasonable to expect the lifeguard to attempt a rescue. This, after all, is the
lifeguard’s duty as a qualified professional. If, however, the person is drowning two
miles out and is surrounded by a school of hungry, man-eating sharks, then one
cannot expect the solitary lifeguard to dive among the sharks to save the swimmer,
even if that means the swimmer will certainly die and even if the lifeguard has a
reasonable chance of saving him (at great personal risk). The lifeguard cannot be
criticized for his non-interference, even though his prima facie duty is to rescue
drowning persons. Likewise, the fact that doctors can, in exceptional circumstances,
28
omit their duty to care to the detriment of their patients does not necessarily entail a
moral wrong, however serious the consequences to the abandoned patients.
As we previously mentioned, one possible consequence of the abandonment is a loss
of public trust in doctors.
People have certain expectations vis-à-vis healthcare
professionals. They expect them, at the very least, to help them in times of ill-health.
Any failure to do so will lead to a loss of faith in the medical profession. This would
certainly be true if doctors regularly refused to treat patients, but this would not be the
case. Justifiable abandonment would be a very rare occurrence indeed and, as such,
would entail no - or at most a negligible, or temporary - diminution in the public’s
trust of doctors. Besides, I believe members of the public have a responsibility to
acknowledge and accept the limits of doctors’ duty to care. I do not think that the
lifeguard’s failure to rescue the swimmer will impact the public trust in lifeguards,
precisely because the vast majority of persons would not expect lifeguards to brave
man-eating sharks to save people. Similarly, the public should not expect doctors to
put themselves at unreasonable risk of harm for the sake of their patients. As long as
patients hold realistic expectations of the limits of doctors’ duty to care, there will be
no loss of trust when these limits are transgressed. The patients might be harmed by
the non-interference, but not wrongly harmed, as there would be no duty on anyone to
remedy the harm. The difficulty lies in establishing the limits of the duty.
29
CHAPTER 4
The Dangers and Limits of the Duty to Care
SARS in Toronto and the Dangers of the Duty to Care
Severe Acute Respiratory Syndrome (or SARS) is a severe form of pneumonia,
originating in Southern China.
Symptoms include high fever, cough, headache,
diarrhoea, muscle aches, shortness of breath and malaise. There currently exists no
specific treatment. The disease is believed to be transmitted by droplets in the air and
through contact with contaminated surfaces.
During February 2003, the disease
spread from China to various locations around the globe via air travel. As of July 11,
there have been 8437 documented cases of SARS worldwide, with 813 fatalities.
Toronto was the most affected city outside Asia, with 250 people affected and 41
fatalities. Of those affected, over half were healthcare workers.41 The World Health
Organization declared Toronto officially SARS-free on July 2, 2003.
Throughout much of the SARS epidemic in Toronto, people talked of the healthcare
staff’s duty to care. By entering into the medical profession, it was claimed, doctors
and nurses have a ‘duty to care’ towards their patients and must therefore incur the
significant risks of infection to treat their patients. Since patients in Canada (and the
United Kingdom) have a right to health care, doctors must have a corresponding duty
to care. In its bare form, however, the phrase ‘duty to care’ is unhelpful in that it
gives no indication as to the precise nature of the duty, nor to its limits. It is as useful
as saying that a lifeguard or fireman has a ‘duty to save’.
We have already
30
established that the duty is not absolute but prima facie (i.e. binding unless conflicting
with another prima facie duty)? The question then is: what are the limits of the duty in
any given context?
Much worse, the term may be ethically harmful as it can be used to justify actions
without the need for rational deliberation. During the SARS outbreak in Toronto, the
phrase was often used as a self-standing argument for active involvement on the part
of medical staff, without any critical examination of its meaning. The message was
simple: medical staff must come to work because of their ‘duty to care’! The
argument assumes the situation falls within the limits of the duty. Used in this
manner, the term becomes a subtle instrument of intimidation, pressuring the guiltridden health care worker into working in circumstances which he considers morally
or physically unacceptable. It becomes a slogan devoid of any meaningful substance.
The invocation of the duty as a persuasive argument must be supplemented with
reasons why the duty holds. It could be argued, for instance, that the risk of infection
is too low, or that no one else will treat the patients. Whatever the reasons, appealing
to the duty alone is insufficient to justify the forced involvement of medical staff.
Indeed, it could be considered a psychological version of an argumentum ad baculum
(appeal to force), implying that any non-complying doctor will face the consequences
of neglecting their primary duty.
Detsky, A. (2003), ‘New Study Provides Detailed Evaluation of SARS Outbreak in Toronto’, Journal
of the American Medical Association. Online. URL. http://www.amaassn.org/ama1/pub/upload/mm/36/jama_sars_release.doc
41
31
The University of Toronto Joint Centre for Bioethics Report on SARS and its
Deficiencies42
Shortly after the end of the SARS epidemics in Toronto, bioethicists from the
University of Toronto Joint Centre for Bioethics issued a report entitled ‘Ethics and
SARS: Learning Lessons from the Toronto Experience’. One section dealt with the
duty to care. It is worth analysing this segment in detail, as it reflects some of the
conceptual problems and possible abuses of the duty to care.
The report grounds the duty to care on ‘several ethical considerations’:
The first is ‘virtue ethics’ which means being of good character. The health
care professional is seen as a ‘good person’ who may be relied upon to
demonstrate altruism by putting the patient’s needs foremost.
Although it is conceivable that a virtuous doctor would treat his patients irrespective
of personal risk, one could easily adopt an opposing virtue theoretical argument
justifying the non-treatment of patients. The doctor might want to protect his family
and acquaintances from the risk of illness, or stay with his young children at home in
times of great fear and anxiety. Such motives would display an array of virtues:
prudence, compassion, non-malevolence, conscientiousness, etc.
Being a ‘good
person’ might not be the same as being a ‘good doctor’. Arguably, the doctor who
refuses to work to protect his six month old baby and elderly father is a good person
but not a good doctor (although not necessarily a bad doctor). In short, there may be
a clash between the duties of a virtuous doctor and those of a virtuous parent. The
appeal to virtue ethics and ‘good character’ does not help to justify the duty to care in
outbreaks of disease. Solid arguments can be presented on both sides, each invoking
a different list of virtues. Furthermore, focusing only on the ‘virtuous doctor’ reduces
42
One of the authors informs me that the report has been accepted for publication by the British
32
the person to his professional role, ignoring his membership of a broader community
and his manifold roles (e.g. parent, spouse, sibling, etc.).
The danger of using the language of virtue in the argument is that it sends a sinister
message to healthcare workers: that those who fail to come to work are unvirtuous or
wicked.
Such denunciation is, to my mind, undesirable.
Moreover, it is not
necessarily true. If, from a deontic perspective (i.e. what ought to be done), the agent
has failed to fulfil his duty, it does not logically follow that the agent is wicked.
Examining the act alone is not sufficient; consideration must be given to the agent’s
motives. If Smith fails to fulfil his duty X, one must know why he failed to do X
before passing aretaic (i.e. virtue-based) judgements on Smith’s character. In short,
there is no straightforward link between deontic and aretaic judgements, and
accusations of wickedness cannot be derived solely from the failure to perform one’s
duty.
The authors’ use of the term ‘altruism’ is at odds with their claim that healthcare
professionals have a duty to care. Altruism, by most definitions, is a supererogatory
act, i.e. beyond the call of duty. A supererogatory act is praiseworthy not only
because it goes beyond what duty requires, but because the agent is under no
obligation to perform that act. Altruism, as an act of supererogation, is thus not
required by the duty to care. Furthermore, Glannon and Ross believe the recipients of
the altruistic act must not be tied to the agent: ‘[…] altruism is directed toward
individuals to whom one has no special ties and therefore no special obligations’.43 It
is clear that doctors do have ‘special ties’ to their patients. The report confuses the
Medical Journal. The date of publication is not known.
33
language of duty with that of supererogation, which has the unfortunate effect of
contradicting various claims in the document.
A similar inconsistency is made later in the report, when the authors conclude that
‘there is a duty for the public and persons in authority to recognize the heroism of
front-line medical workers during the SARS outbreak’. Deconstructing the concept of
heroism is in itself an arduous philosophical endeavour, rapidly engaging us in
definitional obstacles. Emerson asserted that heroes ‘raise the standard of civil virtue
among mankind’.44 Whatever one’s interpretation of heroism, a common trait is that
a hero stands out from the crowd, and performs meritorious actions that most others
would not perform. Like altruism, heroism appears to be supererogatory, rather than
obligatory. It is therefore odd to ascribe healthcare workers with a duty to be heroic!
The report continues: ‘When they enter their profession, physicians take an oath that
they will be competent, and will use their skills in caring for the sick’. Which oath
are the authors referring to? In any case, the extract predictably tells us little on the
nature and limits of the duty to care. The statement is incomplete, and open to
interpretation. The authors assume the existence of an elliptical prepositional clause
tagged on to the end: will use their skills in caring for the sick [at all costs]. This is
indeed a possible interpretation, but an unlikely one. Even in the absence of empirical
evidence, I suspect few doctors would accept this extreme interpretation. We have
already determined that the vagueness of medical oaths provide no guidance on the
limits of the duty to care.
43
Glannon, W., Ross, L.F. (2002), ‘Are doctors altruistic?’, Journal of Medical Ethics, 28, 68-69.
34
The report then draws on an analogy:
As one member of the panel put it, “when we sign on as health care providers
we must accept the risks. Fire-fighters don’t get to pick whether they will
attend at a particularly bad fire, and cops don’t get to select which dark alleys
they walk down.
Are the authors asserting that doctors and nurses have an absolute duty to care, or are
they merely stating the obvious: that some risks must be accepted? The analogy does
not support an absolutist argument, as both fire-fighters and policemen are not asked
to commit acts that would seriously jeopardize their safety. Policemen call for backup
when facing risky situations and firemen wait before entering an enflamed or unstable
building.
To do otherwise would be considered bad practice or straightforward
foolishness. Like doctors, both professionals have limits to their obligations.
‘To me’, the panel member continues, ‘it would be unethical to deny care even if
there is ‘someone else’ that could take that patient’. This may be so, but this personal
belief cannot be generalized or imposed on others. It is wrong to conflate one’s selfmotivated duty to do X with a general duty to do X. An act can be supererogatory
without being considered so by the person performing that act.
After severe
epidemics, many nurses or doctors affirm that they deserve no praise for their actions
(“it was only my job”, “it was only my duty”), yet such modesty should not take
anything away from the moral worth of their actions. It is often heard from people
who have performed extraordinary acts of bravery.
Subjective evaluations of a
situation need not alter the objective merit of an act.
Emerson, R.W. (1841), ‘Heroism’ in Porte, J. (ed.) (1983), Emerson: Essays and Lectures, New
York, Library of America, p. 376.
44
35
Although the report does not claim to be comprehensive and is not primarily aimed at
ethicists, the authors appear confused about the nature and limits of the duty. The
report certainly lacks depth in its analysis of the duty to care. The arguments put
forward for an absolute or, at the very least, a stringent duty to care are too thin and
undeveloped to be persuasive. The appeal to virtue ethics is incomplete, as the
authors must show that it is indeed more virtuous to care for your patients than to care
for your loves ones.
Through using terms such as ‘altruism’ and ‘heroism’ in
conjunction with ‘duty’, the report muddles the language of obligation and the
language of supererogation, creating internal contradictions. The invocation of the
medical oath (the authors do not specify which one) relies on a radical interpretation
of the limits of the duty, and the analogy with fire-fighters and policemen also fails to
elucidate the limits of the duty.
The Duty to Care as a Vacuous Concept
To be of any use, the phrase ‘duty to care’ needs to be given content. This is no easy
task. There is little doubt that the strength and content of this duty are subject to
variation, based on personal interpretations of the means and goals of medicine. For
some, the duty to care will justify lying to terminally ill cancer patients. Others will
disagree, and argue that the duty always requires the honest revelation of grim news
to the patient. Depending on who you ask, the duty to care may or may not justify
paternalism, or abortion, or euthanasia. As it stands, the duty to care entails different
things to different people. What are the goals of medicine? How should these goals
be achieved? Our own answers to these questions will shape our understanding of the
‘duty to care’. If the interpretations of the duty are variable, so too are the limits of
the duty. Few, however, would deny that there are limits. A doctor is under no moral
36
obligation to donate one of his organs to a patient, for example. If he does, his act
will clearly be beyond the call of duty.
So the question arises:
do healthcare
professionals have a duty to care in high-risk situations or is it an optional,
supererogatory act of beneficence?
Judging from the posters hanging on the walls of Toronto’s hospitals and the language
of the media, the healthcare workers were ‘heroes’ during the SARS epidemic. I do
not question this. I do, however, question the inconsistency of heralding workers as
‘heroes’ while invoking a duty to care. As I mentioned earlier, if duties are moral and
institutional obligations, then performing them cannot be heroic, but ordinary. Yet
heroes transcend the ordinary, and exceed the simple fulfilments of duty.
Furthermore, the very need to invoke the duty to care during the SARS epidemic
suggests that the relevance - let alone the fulfilment - of this duty was not obvious.
Persuasion was needed, and persuasion entails pre-existing doubt. It is clear that
many healthcare workers believed the risks transcended the bounds of reason, and
exceeded the limits of the duty.
The reality is that the limits of the duty to care are defined by other competing rights
and duties. A doctor may have a duty to care for his SARS-infected patient as well as
a duty to care for his own child by protecting him (and thus himself) from infection –
this plurality of duties cannot be ignored in favour of a sole duty to care. Should he
fulfil his duty to care or his parental obligations? Such decisions are, to my mind,
deeply personal ones which do not require institutional intervention or condemnation.
They may be tough moral choices. Like the dilemma faced by Sartre’s pupil, who
could not decide whether to join the Resistance or care for his elderly mother, these
37
choices may not possess a uniquely correct answer.45 So a further problem with the
duty to care, aside from its vagueness, is that it fails to consider the holder of the duty
as part of a broader community, itself possessing rights and duties.
The phrase ‘duty to care’ is, at best, unhelpful and, at worst, misleading. It is
unhelpful in that it is little more than a truism: to say that a doctor has a duty to care
is to say that a doctor must care for his patients. It gives no indication as to the
precise nature of the duty, nor to its limits (or scope). Is the duty absolute or prima
facie? The duty, it may be argued, derives from an implicit promise on the part of the
doctor to care for his patient. As soon as the transition from person to patient takes
place, the doctor is bound by the promise to treat his patient. Before the transition, a
doctor may, in certain circumstances, choose whether or not to accept a patient. As
long as he is not ‘on call’, a surgeon need not accept all the cases presented to him.
He can, to some extent, select his patients but, once selected, he is under obligation to
treat.
This distinction between refusing an assignment and abandoning a patient is made
clear in a recent ‘special note’ issued by the College of Nurses of Ontario during the
SARS outbreaks in Canada.46 According to the note, nurses may refuse assignments
‘that they feel puts them or clients at risk; however nurses should have a justifiable
rationale for their refusal’. The problem here relates to what constitutes a ‘justifiable
rationale’. The difference between refusal and abandonment is that, in the latter, the
refusal occurs after the acceptance of the assignment. Once accepted, the patient and
Sartre, J.P. (1946), trans. Kaufman, W. ‘Existentialism is a Humanism’, Available Online: URL:
http://hosting.uaa.alaska.edu/cameron/texts/txt_sartre_existentialism.pdf
46
College of Nurses of Ontario (2003), ‘Clarification on what Constitutes “Abandonment”’, Online.
URL. http://www.cno.org/new/specialnotes/sars/abandonmment.htm
45
38
healthcare worker are bound by an implicit contract requiring the worker to treat the
patient to the best of his ability.
Although the distinction is valid, virtually no one - Kant aside - considers promises to
be unbreachable. If I promise to meet a friend for dinner but on my way find a
toddler drowning in a pond, I would be morally justified to rescue the child at the risk
of missing the dinner and breaking my promise. The duty of beneficence, in this
particular case, outweighs the duty to keep promises, as failing to save the child will
lead to a more tragic outcome than missing my dinner. Circumstances can affect the
rightness or wrongness of the breach. So the invocation of an implicit promise is not
sufficient to settle the matter of the duty’s limits, as breaking a promise is not
necessarily wrong.
The term may be misleading in that it can be used to justify actions without resorting
to rational deliberation or reflection. The phrase can be invoked as an appeal to
authority, as a sort of commandment which lies outside the bounds of argument.
Indeed, during the SARS outbreak in Toronto, the phrase was often used as a selfstanding argument for active involvement on the part of medical staff. Without any
critical examination of its meaning, the phrase can be used as a beating stick to
intimidate reluctant healthcare workers. A surgeon told me of a colleague, a plastic
surgeon, who was due to perform a delicate operation on a seropositive patient. The
operation, which was purely cosmetic, would bring the patient’s chin further forward
by threading dozens of tiny wires through his chin.
As metal gloves are too
cumbersome for such a delicate procedure, the surgeon would have no choice but to
wear double gloves. With so many wires involved and wearing only double gloves,
the chances of getting pricked were not high but significant. In light of the increased
39
risk-level, the patient’s seropositive status, and the cosmetic purpose of the operation,
the surgeon refused to operate. When the case came before a committee, however, he
was forced to operate simply on the grounds that he had a ‘duty to care’.47 Whether
the decision was right or wrong, this story is a good example of the way in which the
duty to care can be used to bypass reasoned deliberation.
Defining the Limits of the Duty to Care
The duty to care should be performed until the level of risk reaches a certain limit.
The question then is: how risky is too risky? In the case of SARS in Toronto, there
were 250 diagnosed cases, and 52% of those were healthcare workers (i.e. 130
healthcare workers). Forty one persons died from the disease (as of 21 July 2003).
The case fatality rate was 16.4%. Much to the disgust of the city officials, the
seriousness of the epidemic was reflected in the World Health Organization’s travel
ban on Toronto and by a Centers for Disease Control (CDC) travel alert. Do these
statistics help us to ascertain the level of risk? Certainly, it provides information
about the extent of the epidemic, the focal points of infection (i.e. hospitals), and the
severity of the disease, but there is nothing there to calculate the risk to individual
healthcare workers. Besides, this information was not available to healthcare workers
during the outbreak. One of the problems of defining the limits of the duty lies in
establishing a normal level of risk, let alone an unacceptable one. But how does one
quantify risk?
It seems reasonable to define the limits of the duty to care relative to a normal risklevel. This would allow for the geographical and chronological variations in what
47
Personal Communication, August 6, 2003.
40
constitutes an acceptable level. A doctor practising in Kinshasa, Democratic Republic
of Congo, for instance, is going to incur more risk than a doctor in rural Dorset.
Likewise, a doctor working in the 18th century was more at risk than a doctor working
in a modern, state of the art hospital. Every nurse or doctor, by accepting a post, is
also accepting to work at that normal risk-level.
It is important, therefore, that
hospitals inform employees of the risk-level prevalent in the working environment of
the prospective healthcare worker. This entails telling prospective nurses or doctors
of any unusual diseases likely to be encountered or procedures to be performed. The
hospital should also delineate what is expected of medical staff in certain eventualities,
such as outbreaks of infectious disease.
Taking as an example the Canadian
experience with SARS, hospitals in affected areas ought to make explicit the
possibility that medical staff might in the future be involved in the care of SARS
patients. Armed with this information, prospective healthcare workers can make
informed decisions regarding the appropriateness of the job. This would avoid the
difficulties encountered during the last SARS outbreaks, when some staff refused to
work on the grounds that exposure to the disease presented unacceptable risk-levels.
The refusal to work of a few healthcare workers had a negative impact on the care of
patients, but also on the morale of their co-workers. Medical staff at Mount Sinai
Hospital, who had admitted 45 SARS patients, were unhappy with the fact that
neighbouring Toronto General Hospital only admitted one SARS patient. A nurse
working at Mount Sinai told me:
Staff started asking ‘why are we disproportionately at risk?’. We needed a
sense that everybody was doing their bit. Also, some hospitals offered to pay
nurses double-time (‘danger pay’), but they couldn’t get staff to work in the
SARS unit, even with double pay. So there was lots of variation in
41
commitment from hospital to hospital. As a result, SARS workers based in
hospitals which didn’t offer double pay weren’t at all pleased.48
Clarifying hospitals’ expectations of the duties of medical staff during routine care
and exceptional circumstances will avoid mishaps of this kind to happen in the future.
Perhaps special training could be offered to those willing to incur higher risks and
salaries modified in accordance to risk-level. Already, such risk-consideration exists
with pregnant healthcare workers. Pregnant doctors and nurses may refuse to work
with X-ray machines, assist with fluoroscopies, or work in environments likely to
endanger their unborn baby. An obvious lesson from SARS is that hospitals must
make explicit what they require of their employees at the time of hiring, not just
regarding pregnancies but also the extent of their duty to care for infectious patients.
Another important factor in defining acceptable risk-levels relates to the healthcare
worker’s specialty. It seems obvious that, within the same hospital, an Accident &
Emergency doctor, as a first port of call to many critically ill or injured persons, is
more at risk than, say, a gerontologist, who deals mostly with elderly patients. During
the SARS outbreaks in Toronto, the persons most at risk were nurses and infectious
diseases (ID) specialists. The ID specialists, understaffed to deal with an epidemic of
such proportions, worked long hours every day of the week. By virtue of their
specialty and training, they felt a stronger obligation to participate than doctors in
other areas of medicine.4950 The limits of the duty to care, therefore, are specialtyspecific, as opposed to applying to healthcare professionals generally. In light of this,
it might be desirable for medical schools to provide students with information on the
48
Personal Communication, August 8, 2003.
Personal Communication, August 8, 2003.
50
Despite her expertise, one of the ID team, who was also the director of Infection Control at Mount
Sinai Hospital, contracted the disease.
49
42
risks involved with each specialty before they decide to embark on a particular career
path, and the same holds true for senior medical staff to house officers.
One difficulty of warning prospective staff of potential dangers is that it is unfeasible
for hospitals to list all the possible diseases that could arise in the hospital, just as it is
absurd for doctors to expose all the possible side-effects of a drug to patients. On the
other hand, there must be more detail than merely referring to some ‘reasonable’
amount of risk, or some equally vague term. One possible solution to the problem of
borderline cases is to call a special committee meeting in which a decision will be
made based on known clinical data, epidemiological information and the general
consensus of specialists. If the situation is deemed beyond the acceptable risk-level,
staff will have the option to opt out and new staff will have to be recruited from
elsewhere. If, however, the situation is considered acceptable, then staff will be
forced to work, and any day off work will be unpaid or considered holiday leave.
The solution above does not seem satisfactory. It is too time-consuming to cope with
a sudden outbreak of disease which could turn an entire hospital topsy-turvy in the
space of a few hours. Medical staff would be needed on the floors, treating patients,
rather than sitting on a committee. And what if the committee judged the situation
beyond the acceptable risk-level? What if no one volunteered to treat the patients?
The functioning of the hospital might fail before there is time to recruit volunteers
from elsewhere. Besides, it is not even guaranteed that there will be volunteers,
unless this has been stipulated in the contracts of certain risk-loving healthcare
workers. During the SARS outbreak in Toronto, the shortage of ID specialists led
43
hospital administrators in a major hospital to send an e-mail asking for volunteers
among medical staff. Only one person volunteered. A rushed ad hoc meeting, by
creating an array of logistical problems, would not serve the best interests of both
patients and healthcare workers. However problematic, it is preferable to define the
limits of the duty to care before the emergence of the ‘event’, rather than during it,
when panic, anxiety, and fear may affect rational thought.
Another possible solution to the problem of unending lists is the use of comparisons
and statistics. Although it is impracticable to list every disease, it might be feasible to
draw comparisons with other conditions and offer statistical information as general
guidelines. Details could include mode of contagion (airborne, body fluids, etc.),
fatality rate, severity of symptoms, prevalence, and other relevant facts. A typical
employment contract might state that ‘healthcare workers in this hospital are not
expected to care for patients with an infectious, airborne disease, with a reported casefatality rate in excess of 50%; examples include X, Y, Z. These patients will be
treated by specially trained staff or, if sufficient staff numbers are unavailable,
transferred immediately to another facility. However, care would be expected if the
mode of contagion is not airborne, irrespective of lethality; examples include Rabies
and HIV/AIDS.’ This level of detail would provide enough information to cover most
diseases. But what about new diseases, like SARS, about which there is little or no
existing clinical knowledge? In the absence of any definitive information, it seems
best to assume that the disease falls within the bounds of acceptable risk until
evidence shows otherwise. The default mode should favour treatment.
44
One consequence of the variations in acceptable risk-levels among hospitals is that
patients in one area are likely to obtain treatment whereas patients in another area are
not, depending on their proximity to ‘risk-taking’ hospitals. In unified health systems
such as those in the United Kingdom and Canada, the system should ensure that all
patients have access to these hospitals.
In Toronto, the Department of Health
designated a SARS-alliance which consisted of four major hospitals selected to
receive the bulk of SARS patients. Although logistically burdensome, transportation
of affected patients to these special hospitals ought to be planned in advance. This
would form an integral part of the preparedness of the healthcare system for
epidemics of severe infectious diseases, as well as fulfilling the egalitarian ideals of a
unified health system.
In Chapter 3, I argued that patients too have a duty to care for healthcare professionals.
Virtuous patients have a duty to acknowledge the fears and concerns of medical staff
and, should these impair the psychological or professional capacities of the healthcare
worker, patients should dismiss the carer and ask for a more suitable replacement.
The non-ambulatory patients in the Nurse Eleanor story, for example, urged the
nurses to flee with the rest of the patients. They considered their own care beyond the
limits of the nurses’ duty. The limits of the duty to care should be established through
a dialogue between members of the public and healthcare workers. Such a dialogue,
bringing together the perspectives of doctors and patients, would result in a set of
limits and conditions that would be mutually acceptable to both parties. There is
therefore an urgent need for empirical work examining the beliefs of the public
regarding the limits of the healthcare professional’s duty to care.
45
Boundaries to the duty to care could also be justified using a straightforward
consequentialist argument. The agent is here relegated to the background and the
focus shifts to outcomes. If the suffering prevented by the duty to care causes more
suffering to others, then this would be grounds for not fulfilling the duty. The limits
are therefore dictated by calculating which option will produce the maximal outcome.
This would be acceptable if taking care of one patient would mean failing to care for a
dozen other patients, as the conflict would be between the duty to care for patient A
and the duty to care for patients B-M. Clearly, all other things being equal, the latter
is the preferable option. Needless to say, the practical difficulties of calculating
maximal outcomes seriously limit the use of the consequentialist argument to resolve
real-life problems.
But what if the conflict is between the duty to care for patients and duties to nonpatients, such as the doctor’s children and parents? As I mentioned above, it is
virtually impossible in practice to quantify which option will produce the most
welfare. And even if quantification were possible, what if the doctor would incur 9
units of suffering by treating the patient and the patient incur 10 units of suffering
from not being treated?51 Should he discard his tendency to favour himself and treat
the patient? It is, after all, natural to disproportionate one’s own interests. Many
philosophers would claim that this disproportionality be rejected in favour of unbiased
judgment, but this seems unrealistic. With this approach, the duty to care would be
excessively demanding, requiring the agent to incur too great a sacrifice. What is
morally right must be accessible to the average person, or, as Kant professes, ‘ought’
51
To avoid ridiculous conclusions, the suffering must represent a significant burden to the doctor.
46
implies ‘can’.52 Unless the difference is considerable (the meaning of which is, again,
open to debate), I believe the doctor is justified in favouring himself over his patient.
This conclusion reinforces the need for a pre hoc dialogue between members of the
public and healthcare workers.
Defining the limits of the duty to care is a daunting task, strewn with philosophical
and logistical difficulties. This chapter has discussed some of these difficulties and
offered tentative solutions. I argued that the limits of the duty must be a function of
the normal risk-level, based on time, space and the healthcare worker’s specialty. I
suggested that hospitals explain - using comparisons and statistics - the limits of the
duty to prospective staff before employment to avoid complications during the event.
I also emphasized the importance of a dialogue between the public and the medical
profession to establish a mutually acceptable set of limits. This is based on the belief
that patients too have a duty to care for healthcare workers. Finally, I presented a
consequentialist argument in favour of limiting the duty to care to optimific cases,
while acknowledging the tendency for agents to disproportionate their own interests.
52
Hill, T. (2000), ‘Kantianism’ in LaFollette, H. (ed) The Blackwell Guide to Ethical Theory, Oxford,
47
CHAPTER 5
Conclusion
Although few would question the existence of a duty to care for healthcare
professionals, little attention has so far been given to the precise nature and limits of
this duty. As new and exotic pathogens continue to appear with alarming regularity in
Western countries, there is a pressing need to examine the concept in detail. The
recent pandemic of SARS is a wake-up call for medical professionals and ethicists to
examine the concept and flesh out what, in its present state, is a vacuous and
misleading slogan.
Our attempt to elucidate the concept by turning to medical history revealed only that
which we already knew: the duty to care means different things to different people.
Medical oaths and codes either failed to address the issue entirely or were too vague
to provide any concrete insights on the limits of the duty to care. In Chapter 3,
therefore, I endeavoured to explain why the interpretations of the duty vary and
exposed the conceptual and ethical implications of the duty. As members of different
communities, healthcare professionals possess a plurality of duties to different people,
not just patients. I called for an end to the radical asymmetry in autonomy between
doctors and patients and argued that the latter, as virtuous agents, also possess a duty
to care for their doctors.
A doctor’s duty to care can be annulled in certain
exceptional circumstances when the risk to himself outweighs the benefit to the
patient, no matter how grim the consequences to the patient. I also emphasized the
need for a dialogue between healthcare professionals and members of the public. This
Blackwell, p. 241.
48
would result in an agreement on the justified abandonment of patients by doctors and
nurses, and prevent a detrimental loss of trust in the medical profession by the
public.53
In Chapter 4, I pointed to the potential dangers of the phrase ‘duty to care’, using the
example of SARS in Toronto and dissecting the report of the University of Toronto’s
Joint Centre for Bioethics. The report uses a weak virtue theoretic argument to
support a stringent duty to care and muddles the languages of duty and supererogation.
I argued that, on its own, the phrase could be used as a self-standing argument,
intimidating healthcare workers to work in unacceptable conditions. The final part of
the chapter proposed limits to the duty to care. I attempted to answer a number of
questions: What is a ‘normal’ risk-level? What factors are involved in defining this
level? How can the definitional vagueness of normality be resolved? I suggested that
hospitals inform prospective staff of what is expected in crises at the time of
employment, rather than in the midst of the emergency. As potential participants in
the drama, the public too should be involved in setting limits to the duty.
This is no more than an exploratory work on the duty to care. The subject is, to my
mind, vast and difficult. Some of my arguments no doubt require refinement and
development. Others may be shown to be inadequate or misguided. Nevertheless, I
hope, at least, to have revealed the complexity of the concept, and highlighted the
need for devoting the matter more attention than it has hitherto received.
53
Once agreed, it would of course no longer be considered ‘abandonment’.
49
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