Ethics, Medicine and Public Health (2020) 12, 100430 Available online at ScienceDirect www.sciencedirect.com PHYSICAL CONSIDERATIONS Medical complicity and the legitimacy of practical authority Complicité médicale et légitimité de l'autorité pratique K.M. Ehrenberg School of Law, University of Surrey, Frank Whittle Building, GU2 7XH Guildford, United Kingdom Reçu le 22 novembre 2019 ; accepté le 26 novembre 2019 KEYWORDS Joseph Raz ; Legitimacy ; Medical complicity ; Moral duty ; Practical authority Summary If medical complicity is understood as compliance with a directive to act against the professional's best medical judgment, the question arises whether it can ever be justified. This paper will trace the contours of what would legitimate a directive to act against a professional's best medical judgment (and in possible contravention of her oath) using Joseph Raz's service conception of authority. The service conception is useful for basing the legitimacy of authoritative directives on the ability of the putative authority to enable subjects to comply better with reasons that already apply to them. Hence, the service conception bases the legitimacy of practical authority on a certain kind of greater knowledge or expertise. This helps to focus the conundrum regarding complicity on the clash of expertise between the medical expert and the governing body tasked with coordinating behaviour and otherwise devising rules for the social good. The ethical dilemma presented by a hypothetically legitimate directive to act against a professional's best medical judgment also serves to highlight the moral dimension of one's duty to obey a legitimate authority. © 2019 L'Auteur. Publié par Elsevier Masson SAS. Cet article est publié en Open Access sous licence CC BY-NC-ND (http://creativecommons.org/licenses/by-nc-nd/4.0/).MOTS CLÉS Résumé Si la complicité médicale est comprise comme le respect d'une directive visant Joseph Raz ; Légitimité ; à agir à l'encontre du meilleur jugement médical du professionnel, la question se pose de savoir si elle ne peut jamais être justifiée. Ce document tracera les contours de ce qui légitimerait une directive visant à agir contre le meilleur jugement médical d'un professionnel Adresse e-mail : k.ehrenberg@surrey.ac.uk https://doi.org/10.1016/j.jemep.2019.100430 2352-5525/© 2019 The Author. Published by Elsevier Masson SAS. This is an open access article under the CC BY-NC-ND license (http:// creativecommons.org/licenses/by-nc-nd/4.0/). 2 K.M. Ehrenberg Complicité médicale ; Devoir moral ; Autorité pratique (et contrevenant éventuellement à son serment) en utilisant la conception de l'autorité de Joseph Raz. La conception du service est utile pour fonder la légitimité des directives faisant autorité sur la capacité du gouvernement à permettre aux sujets de mieux se conformer aux raisons qui leur sont déjà applicables. Par conséquent, la conception du service fonde la légitimité de l'autorité pratique sur un certain type de compétences. Cela permet de centrer l'énigme en matière de complicité sur le conflit d'expertise entre l'expert médical et l'instance dirigeante chargée de coordonner le comportement et de définir par ailleurs des règles pour le bien social. Le dilemme éthique présenté par une directive hypothétiquement légitime visant à agir à l'encontre du meilleur jugement médical du professionnel sert également à mettre en évidence la dimension morale de son devoir de respecter une autorité légitime. © 2019 L'Auteur. Publié par Elsevier Masson SAS. Cet article est publié en Open Access sous licence CC BY-NC-ND (http://creativecommons.org/licenses/by-nc-nd/4.0/). I W s r p b o a c i e w u u w t a t N m s c f t c l t t p h k a a f l h t w c i t p h s d i f m t t w l p t l m i i medical professional's legal system, that it is constitutional and was issued following proper legal procedures. In saying it is legally valid, we are not thereby assuming anything aboutn most discussions of medical complicity (at least since orld War II), the focus is on more egregious uses of medical kill in ways directly harmful to the patient [1-4]. In more ecent years, there has been an understandable focus on the articipation of medical professionals in torture thought to e necessary to save large numbers of innocents [5-8], and n the force-feeding of hunger strikers [9-11]. These cases re certainly more challenging to reach the morally correct onclusion than instances in which the medical professional s co-opted for inhumane experimentation or in a quest of nhancing harm for military success [12-14,15 p. 3]. However, if we are going to explore the moral contours of hen such complicity might possibly be justified, we need an nderstanding of complicity that doesn't automatically lead s to assume that no justification can be found. After all, if e define medical complicity in such a way that it is concepually impossible to justify as a necessarily wrong act, we re begging the question of whether any government direcive to act against the patient's interests can be legitimate. evertheless, complicity clearly must involve some notion of oral compromise on the part of the medical professional, ome contravention of the standard medical oath1. For the purpose of this paper, I will define medical omplicity as compliance with a demand that a medical proessional act against her best medical judgment with regard o an actual or potential patient, where that demand is oming in the form of a lawful directive on the part of her egally constituted and recognized government. This undersanding is in keeping with one made by Edmund Pellegrino, hat the more morally problematic instances of such comlicity were any instance in which the physician2 is required 1 Since this paper may reach legal professionals and academics, I ave been advised to include the caveat that we are not here taling about complicity as a concept or offense within criminal law, lthough there are some obvious areas of overlap [16 p. 132]. We re dealing specifically with complicity on the part of medical proessionals with (we will assume) lawful directives of their otherwise egitimate governments. 2 I will use ''physician'' and ''medical professional'' somewat interchangeably. Of course, not all medical professionals are p a p a t i h s t p s o i p o use her medical knowledge for a purpose other than the elfare of the patient [13 p. 372-3]. This understanding learly side-lines some instances of concern, such as those n which the medical professional is faced with the quesion of whether to use medical knowledge obtained through ast immoral actions for the benefit of the patient facing er. It also marginalizes instances where the medical profesional is faced with a simple conflict between her medical uty and her own reasons of prudence. While some instances n which a government is demanding an act or information rom a physician will be ones in which the government is aking threats to the physician as well, we will assume that hose threats do not themselves bear upon the morality of he decision the physician faces3. The definition I suggest ill help us to focus on the tension between what might be egitimate governmental interests and the interests of the atient facing the medical professional. Our definition of complicity includes the stipulation that he directive which creates the challenge of complicity is awful and coming from an otherwise legitimate governent. This also needs to be unpacked a bit. In saying that it s a ''lawful directive'', we are assuming that the directive s legally valid, in keeping with validity conditions for thathysicians, and there may be aspects of the moral calculation that re more applicable to physicians, and others more applicable to sychologists, nurses, paramedics, etc. Where these distinctions re relevant, they will be highlighted, but otherwise the two will be reated as equivalent. One additional factor we will discuss briefly s whether the medical professional has taken an oath not to do arm. 3 This assumption is very likely counterfactual. Where the phyician's profession garners a livelihood upon which others depend, hreats to that livelihood certainly have moral implications for the hysician's non-professional duties. Similarly, threats to the phyician's person or liberty may have implications for the wellbeing r happiness of others. But we will bracket these considerations n order to focus on the conflict between the directive and the hysician's medical duties. j i j a a t o t c n S g o a t t g m s p c t o p w d e p o a i t l w a p m o r f o a t c l a Medical complicity and the legitimacy of practical authority the morality of the directive itself. Some might think this commits us to a legal positivist way of looking at the law [17,18]. But it would also be consistent with some weaker versions of natural law (in which immoral positive laws are still legally valid, though defective) [19,20]. In saying that the government is ''otherwise legitimate'', I simply mean to assume away cases in which the government is so morally defective that none of its directives can possibly obligate. We will see shortly that legitimacy is not an all-or-nothing affair when it comes to political obligation4. By focusing only on those cases where it is possible for the government to issue morally binding directives, I am hoping to focus on the instances in which medical complicity is a moral conundrum for the medical professional. If the government was incapable of issuing morally binding directives, then its directive for the professional to do something against her better medical judgment could only give a prudential reason (e.g., to avoid sanction), which we have already assumed does not itself present a moral reason that needs to enter our consideration here. Furthermore, we would be back in the position of begging the question against the possibility of a morally binding obligation to be complicit. The question is then essentially what could make a legal directive to a medical professional to act against her better medical judgment morally legitimate. The focus on legitimacy is apt because we are concerned precisely with what could be the moral justifications for compliance with these directives. That is, a concern for the conditions of legitimacy of a legal directive is one that focuses on its moral justifiability, its moral authority, what gives the commander a right to issue the directive and thereby give the subject the duty to comply5 [33-35]. Hence, we are not concerned with mere power (understood as the ability of the commander to get others to comply). Nor are we concerned with de facto authority understood as the belief that the commander has the right to command. We are concerned with what people are attempting to track with their judgments about legitimacy, rather than the beliefs that are a result of those judgments. Some might think that de facto authority is the only kind of authority that need concern us. Even if there is something that people are trying to get right in their beliefs about legitimacy, it is not something to which we have reliable access; we cannot be sure that these judgments are ever correct. Hence, under this view, de facto authority is the only thing we can really talk about. But in asking when complicity might be morally justified, we are assuming already that there is an answer to this question that people can get right or wrong. We are asking for an analysis of what it is to be morally justified and not merely to be believed to be justified. Our question would otherwise be what makes people believe that complicity is morally 4 While Jospeh Raz distinguishes between political obligation and the obligation to obey the law [21 p. 127], we will treat these as equivalent here, following the majority of the literature [22 p. 217, agreeing with Raz but noting the prevalence of the conflation, 23]. 5 Some people suggest that the right to command and the duty to obey can come apart [24-29]. But we will follow Raz in seeing the right to issue commands and the duty to obey them on the part of the audience of those commands as two sides of the same coin [30 p. 235, 31 p. 6, 32 p. 1012]. d s d o m a j o I a 3 ustified, rather than what makes those beliefs correct or ncorrect. In effect, it would all just be a matter of subective opinions about legitimacy; there would be no right nswer6. Furthermore, if want therefore to say that our nalysis of what might make medical complicity morally jusified is tracking something other than the psychological fact f beliefs about that justification, we are thereby relying on he conceptual possibility that the directives demanding the omplicity are themselves potentially morally legitimate. To begin our discussion of the legitimacy of authority, we eed to recognize first that authority comes in two flavours. ometimes we use the word ''authority'' to refer to the reater knowledge of an expert. Generally, when we think f the medical professional herself, we think of her as an uthority on the subject of health and disease or injuries o the human body. When the physician gives a directive o a patient, we usually think of that as a form of advice, iving information about what course of action would be ost beneficial to the patient. While we might take it quite eriously, we don't usually conceive of the directive of the hysician to the patient as akin to the orders of military ommanders, parents, or government officials. In those later cases, we say instead that a person is ''in authority'' r ''in a position of authority'' rather than saying that the erson is ''an authority'' on a given subject - which is what e say of the physician. In the literature on authority, this istinction is explained by saying that the authority of the xpert is 'theoretical'' or ''epistemic'' in that the expert's ronouncements give you reasons to believe a given piece f information or interpretation of information, while the uthority of the commander is ''practical'' or ''deontic'' n that the commander is giving you reasons to act in cerain ways [30 p. 8, 43, 44 p. 399, 45]. So, the challenge of egitimating medical complicity is in navigating a clash beteen the practical authority of the state and the theoretical uthority of the physician. While this is an important distinction, especially for our urposes, a quick look at the authority of parents and of ilitary commanders shows that sometimes the legitimacy f practical authority can be based on theoretical authoity. That is, one reason among others that we might have or saying that parents have the right to give directives that ught to be obeyed by their children (where the children re old enough to bear this duty) is that parents know better han the children what is best for them. Similarly, military ommanders are thought to be in a position of greater knowedge of the goals of military action and facts salient to the ttainment of those goals. Even though they may not be irecting their subordinates in ways that are best for those ubordinates individually, we would still say that the suborinates have a duty to sacrifice their own interests for those f the wider community (assuming that the military action 6 There are metaethical positions in which there can be no correct oral judgments. Some say that moral claims are not judgments t all, merely expressions of emotion [36,37]; some say all such udgments are wrong [38,39]; some say there are no moral truths n the basis of which such judgments can be true or false [40-42]. admit I may be treating some or all of these metaethical positions s incorrect in making the assumptions I do in this paper. 4 i s r i t [ t m i p t k s o p r i t e t e a p p t i t h t i d t r p a s [ t d t fi c c I b a i t m l g i g a m d f c U d p o o a g o o w n s t a t Y c b a r b g t r A t p l b w d r t m a r t l w b o t t l H m c d w w no longer applies because of more pressing concerns is one for whom the command was illegitimate. If these considerations are leading us in the right direction, we would want a 7 Raz captures this intuition by saying that governments claim that all of their legally valid directives are morally binding, but we assess s itself justified), and that following those commands is the ubstance of that duty. A word of caution, however: to say that practical authoity can be based on theoretical authority is not to say that t can be reduced to theoretical authority. If we were to say hat practical authority is reduced to theoretical authority 25 p. 14,46], we would be saying that no one ever really gets he right to tell others what to do. Instead, putative comanders are merely giving people information about what s in their interests or meets their pre-existing duties. This osition is perfectly coherent and can likely be accommodaed by the analysis of this paper, although it implies a certain ind of philosophical anarchism. If all instances of suppoedly legitimate practical authority are merely instances f legitimate theoretical authority, then the commands of utative authorities are not giving their subjects any new easons they didn't already have. The most they can do s inform them of pre-existing reasons to behave in cerain ways. With this understanding, a legal directive, for xample, is generally just informing us how to avoid sancion by telling us which behaviours will incur it. We will be ngaging with a theory that holds what legitimates practical uthority is its ability to get those subject to it to comly with the best balance of reasons. A view that reduces ractical authority to theoretical authority is simply holding hat that best balance of reasons cannot be changed by the ssuance of the directive itself. But since it is very unlikely hat a demand for the medical professional to act against er best medical judgment will be morally justified unless here is an already existing set of serious reasons to do so, t is highly likely that the legitimating conditions of such a emand will be the same whether we believe it possible for he commander to issue new practical reasons or only to eport those pre-existing reasons. While there have been many attempts to justify the ossibility of legitimate political authority throughout the ges, we will focus on a more contemporary theory, the ervice conception of authority advanced by Joseph Raz 21,30-33,47-52]. Raz's theory has a number of advanages. First of all, his theory is non-voluntarist in that it oesn't require consent of the person subject to the direcive for it to be legitimately authoritative [53]. Some might nd it a bit surprising that I cite this as an advantage. But onsider whether we really think that all instances of practial authority are only legitimate when the subject consents. don't think consent is necessary for parental authority to e legitimate. Similarly, I can imagine situations in which the uthority of military commanders would be legitimate even f those subject to that authority were conscripted against heir will. Finally, even when it comes to governments, we ight wish to say generally that government authority is imited to governments that rule with the consent of the overned, but I'm not sure that is always the case. We can magine situations in which, because of some national emerency threatening many lives, the directives of an otherwise uthoritarian or undemocratic government become legitiate, at least when concerning that emergency and for its uration.As a way of testing the idea of consent being unnecessary or legitimate authority, away from governmental situations, onsider the following thought experiment owed to Edna llmann-Margalit [54 p. 350-1]. You are in a room with two t f t t K.M. Ehrenberg oors, marked (on both sides of the door) ''A'' and ''B'' resectively, each on the opposite side of the room from the ther. There are 100 people inside the room and 100 people utside of the room, spread out relatively uniformly inside nd outside the room. Because of some unspecified emerency, all 100 inside the room need to get out and all 100 utside the room need to get in. If everyone simply learned f the emergency at the same time, you can imagine what ould happen: everyone would run to the nearest door and o one would be able to enter or leave. But now, imagine omeone jumps up on a table and says in a voice loud enough o be heard inside and outside, ''Use door A to exit the room nd use door B to enter the room!'' No one inside or outside he room consented to this person's right to issue commands. et, everyone now is under a moral duty to comply with that ommand as it solves the collective action problem caused y the emergency. Another advantage of Raz's theory is that it legitimates uthority in a piecemeal way. Just as in our thought expeiment, we don't imagine the person's authority extending eyond the emergency or to matters not covering the emerency, there doesn't seem to be a prima facie reason to hink that once a government possesses legitimate authoity, it must extend to all of the government's directives. gain, we are conceiving of authority as a right to control he behaviour of others corresponding to a duty on their art to obey. It therefore seems more reasonable that the egitimacy of that authority is to be assessed on a directivey-directive basis, rather than in a blanket way. Granted, e are used to thinking about government's authority extening to all of its directives7. But upon reflection, we don't eally think even the most legitimate government has a right o command whatever it wants. Many situations can underine the legitimacy of a command for certain people and/or t certain times. Where a directive couldn't have consideed a certain exigency, we think we are in an exception to he legitimacy of that directive. Even if the law against vioating posted speed limits did not include an exception for hen you are rushing someone to the hospital, we would still elieve that the law against speeding is not morally binding n the person rushing to the hospital. We might say that cerain people are in situations of morally more pressing duties hat justify their disobedience. One way to address this is to say that the directive is egitimate but outweighed by those other considerations. owever, if we are serious about seeing the right to comand and the duty to obey as opposite sides of the same oin here, then someone in a situation where his duty of obeience is outweighed is no longer bound by that duty. That ould be akin to saying that the command was not issued ith a right in that instance. A person to whom the dutyhat claim on a case-by-case basis. Each directive is to be assessed or legitimacy with regard to each subject each moment, such that he claim could be true of a given directive for me but not you, or rue now for me but not in ten minutes for me [33 p. 69]. t T ( g ' e [ o t a g w i p a t t s a f i t W t i r h t h t a s t s m c p c l w c t s putting the directive on the scales in favour of compliance. In order to help her to act according to the best balance of reasons that apply to her, the directive must exclude at 8 To say that the reasons for the directive must ''reflect'' reasons that already apply to those subject to the directive is not to say that a legitimate directive cannot be based on reasons other than those applying to the subjects. But the actions required by the directive should be ''justifiable by the reasons that apply to the subjects.'' That is, sometimes the authority may need to adopt ''an indirect strategy'' for the subjects to comply with the best balance of reasons [33 p. 51].Medical complicity and the legitimacy of practical authority theory of legitimate practical authority that explains why a given directive might be legitimate for me but not for you, or legitimate for me now, but perhaps not in ten minutes. Raz's theory does just that. Raz's theory captures the idea that legitimate authority must be exercised for the sake of those subject to it, either in the service of their interests, or in the service of their preexisting moral responsibilities, without making it depend upon their consent. After all, if we take seriously the value and requirements of autonomy, the only thing that could overcome the right to self-determination that is generated by that value is something that appeals to a value that is more basic or of greater import. Raz's answer is to base the legitimization of authority on the overriding concern we have to act on the best balance of reasons. That is, the value of autonomy stems from the fact that we are generally in the best position to assess what is best for us, given our own personal ambitions, projects, and goals, which are themselves based upon our individual talents, tastes, and desires, as well as our pre-existing moral duties. But all of those talents, desires, ambitions, goals and duties give us reasons to act in certain ways. Our talents and tastes, along with our pre-existing duties, give us reasons to adopt certain goals over others. When we decide which goals to adopt, we are trying to assess what the best balance of those reasons are. Once we adopt those goals, they give us further reasons about how to pursue those goals. We decide on the means to pursue those goals by again trying to assess the best balance of reasons that apply to us. If autonomy itself is generally subservient to the value of leading one's life according to the best balance of reasons that applies to one, then it can and should bow out in situations where acting non-autonomously would aid in acting according to the best balance of reasons. This is where the service conception picks up. It says that the normal way to justify authority is to say that it is justified where obedience to it helps the subject conform better to the best balance of reasons that already apply to her, than she would be able to accomplish if left to her own devices. Raz calls this the ''Normal Justification Thesis'' (NJT) [33 p. 53]. Now, one might justifiably think that sometimes it's better for people to prioritize autonomy even at the risk of not acting in accord with the best balance of reasons. That is, there are some areas of human life where it is more important to make one's own mistakes than it is for people to reach the right conclusion about what to do. Raz realizes this and gives two examples of where this is likely to be true: certain matters in which children need increasing selfreliance (and so must be allowed to make their own mistakes in order to learn properly), and the decision about whether and whom to marry [32 p. 1015-6]. He, therefore, qualifies the NJT by saying that it is subject to what he calls an ''independence condition'', such that the matter is not one in which it is more important for people to make mistakes than to get it right [32 p. 1014, 33 p. 57, 55 p. 1180]. One might also wonder how these areas are determined. I'm not entirely sure how to answer that but suspect it might have something to do with the balance of reasons requiring that some specific actions be the result of one's own choices. Since the reasons on the basis of which we are ultimately justifying the authoritative directive here are the reasons that already apply to the subject, there is another condition s m s 5 hat is generally necessary for the directive to be legitimate. hat is the requirement that the directive be based upon or at least reflect8) reasons that already apply to the taret audience of the directive [33 p. 47]. Raz calls this the 'dependence thesis'', conceiving of these particular prexisting reasons as ''dependent reasons'' for the directive 33 p. 41]. Of course, those dependent reasons need not be nes the subject is aware of, or would agree with, or even hat are in her interest (as reasons - usually moral - that pply to her can require a sacrifice on her part). When a directive is legitimate for a given subject at a iven point in time, Raz claims that it presents the subject ith ''pre-emptive reasons'' [33 p. 57]. That is, when we magine undertaking a decision procedure about a contemlated action, we would generally add up all of the pros nd cons, thinking of each as a reason in favour or against he action, giving each a weight according to the strength of he consideration in favour or against. In a non-authoritative ituation, if someone were to request that you undertake the ction, that request would count as an additional reason in avour of the action, with a weight corresponding to how mportant it is to make the requester happy, how imporant it is to the requester that the action be done, etc. e might similarly say that if someone were to order you o undertake the action, that would count as some reason n favour of undertaking it, even if we might discount that eason because of thoughts that the person didn't express is desire regarding the action in a very nice way. (Where he order comes from someone whom we wouldn't think of aving any right to order us around, we may very well count he order as a reason against the action as well.) But thinking bout the dependence and normal justification theses a bit hows that when directives are legitimately authoritative, hey are a bit different. In order for authoritative directives to perform the ervice that generally determines their legitimacy, they ust pre-empt the subject's reasons against the action ommanded9. They are authoritative to the extent that they re-empt the reasons that the authority was meant to have onsidered in issuing the directive [21, p. 140]. That is, if egitimately authoritative directives were simply additional eighty reasons in favour of the action commanded, they ouldn't provide the service of helping the person subject to he directive to comply better with the best balance of reaons. She would be left balancing the reasons as she sees fit,9 For Raz, to say that the directives pre-empt the subject's reaons against the action commanded does not mean that the subject ay not still deliberate upon or consider those reasons. The subject imply may not act upon them [33 p. 39]. 6 l c r o c r b t a b i o w t f s c i u m s t i w w p h l s o o o a g c r o p i o t c r m a m t e w i b g a n w w u n E t T p i b o p o t t o I c I p o t s w o p f p a m t m I a n a t d c r l c e f t t n a t l g m t t w b t r s east some of those reasons (the ones counting against the ommanded action) [21 p. 140-1, 33 p. 61]. Furthermore, since in order to be legitimately authoitative, the directive is already based upon a balancing f the reasons that apply to the subject (along with other onsiderations), to see the directive as simply a weighty eason (rather than seeing it as excluding some), would e to double count the reasons in favour of the action hat the putative authority already accounted for. That is, legitimate directive must be allowed to pre-empt the alancing of reasons that the subject would do (at least n determining the action, if not the deliberation), since therwise seeing the directive as an additional reason ould be to give undue weight to the reasons in favour of he action - they would appear a second time as the basis or the directive [33, p. 58]. A legitimately authoritative directive, therefore, is a reaon to act in conformity with the content of the directive, oupled with a reason to exclude certain reasons not to act n conformity with it. We exclude those reasons by not acting pon them. With this picture of legitimate practical authority in ind, let us return to the situation of the medical profesional. Generally, the medical professional's responsibility o her patient is to act always in the patient's best interest n terms of the patient's continued or recovered health or ellbeing [56-58]. An instance of complicity, we have seen, ould be where the medical professional is not acting in the atient's best interest as a result of other considerations, ere the lawful directives of her government. As we've seen using Raz's theory, even if we imagine a aw that is general in that it is aimed at all medical profesionals, or all medical professionals in a certain speciality, r in a certain circumstance, or dealing with a certain kind f patient, if that general law is legitimate at all, it may nly be legitimate for a subset of those at whom it is aimed, nd/or only for part of the time the law is in effect. It would enerally depend upon whether the law is helping the medial professionals to conform better with the best balance of easons that apply to them than they would be able to do n their own. Since we generally think that one of the highest resonsibilities of the medical professional is to her patient, t would likely be a very high bar that would need to be vercome for a directive to act against that responsibility o be legitimate. The only thing that we usually think can ontravene such a responsibility would be a more pressing esponsibility, perhaps to another patient whose needs are ore severe. Putting aside the government directive for moment, two kinds of physicians come immediately to ind who must balance the considerations of others against he patient in front of them: emergency room doctors and pidemiologists. Emergency room doctors of course must ork on a triage system. It is likely that what is in the best nterest of the patient in front of them at the moment is to e treated right away. However, if there are patients with reater needs waiting for treatment, we expect them to put side the interests of this patient for the one with greater eeds [59-62]. While emergency room doctors are the ones e expect to confront this situation on a regular basis, e actually expect almost all medical professionals to act pon this principle, so long as the patient with greater r d v g K.M. Ehrenberg eeds is one that the particular professional can treat. pidemiologists must confront a similar situation, but where he other people to be considered may not yet even be ill. hey may be in a situation where little can be done for the atient in front of them, but by acting against that patient's ndividual interests, a large number of other people may e prevented from becoming ill [63-65]. Indeed, this is ne area in which a physician can function as a legitimate ractical authority rather than as a theoretical authority. In rdering that a given patient be quarantined, for example, he epidemiologist is exercising practical authority rather han giving advice. This is an order that creates a duty (and ne that, in most cases, the state is prepared to enforce). n that, they may be helping the individual infected patient onform better with the best balance of reasons facing him. t is likely his moral responsibility to forgo his freedom, and ossibly sacrifice his health and even his life, to prevent thers from becoming infected. The directive quarantining he patient is helping him to conform to that overriding reaon. The epidemiologist is therefore also prioritizing those ho are not in front of her for treatment or protection, ver the patient immediately confronting her. Now, we may be tempted to use emergency room hysicians and the epidemiologists as models for when lawul government directives to act against the interests of atients are legitimate. That is, we might start by saying government directive that is successfully protecting a uch larger number from serious risks, or is redirecting he physicians' efforts toward treating those confronting ore serious threats to health, is a legitimate directive. t is likely that the government's central position gives it ccess to information that the individual physician canot obtain and so directives based on these considerations re helping those individual physicians to conform better o the best balance of reasons than she would be able to o on her own. The problem is that this doesn't look like omplicity any more. That is, if we already think of the esponsibilities of emergency room workers and epidemioogists as generalizable to all medical professionals when onfronting similar situations (even if their speciality is not mergency medicine or epidemiology), then the directive or physicians of other kinds to sacrifice the interests of he patient in front of them is not a moral compromise of he kind that raises the issue of complicity. The directive is ot asking the physician to do something that she doesn't lready have a direct medical responsibility to do (indeed, hat is precisely why we imagine that the directive is egitimate). In order to reach complicity, therefore, we have to imaine that the directive is issued not for the sake of a greater edical need. Those will certainly be much harder to jusify, but perhaps not impossible. First of all, it is clear hat the considerations behind the government directive ill have to be moral ones, in order to have a chance to e legitimate as against the physician's responsibilities to he patient. We generally think of moral reasons as a kind of easons that trumps other kinds of reasons. Since the phyician's responsibilities to the patient are themselves moral esponsibilities, only moral reasons behind the government irective will have any chance of doing a better job of proiding a better balancing of the best reasons for action in a iven circumstance. a s b t m m b t a u n f o p t n w F a i w b i t w i w n l ( d c f b r p i a t o c t u o t s b o t i w l n w d i Medical complicity and the legitimacy of practical authority One might imagine here that the physician's oath, if one has been undertaken, is relevant here. After all, if we understand the oath to be a promise to treat patients a certain way, then that would be an additional moral consideration against acting in a way that goes against the physician's best medical judgment of the patient's interest. However, once the physician has the requisite skills to render aid to a patient, it would seem that the responsibilities to do so are already in place and that the oath doesn't add anything to the moral picture [66]. Indeed, if we think of the oath as akin to a promise, it is not clear to whom the promise has been made: other physicians, potential future patients, the physician herself? If the oath does have moral effect, it is likely only to magnify somehow the physician's pre-existing duties, perhaps as against her other responsibilities. Whereas before undertaking the oath, she may have been entitled to discount certain responsibilities towards strangers, in favour of other responsibilities of slightly lesser absolute weight owed to friends and family, now perhaps she must put those strangers' interests in a higher position. So, for example, while non-medical personnel may be permitted to refuse to render relatively minor aid to a stranger where doing so would necessitate missing his child's piano recital, a medical professional who has undertaken certain professional oaths may not have the same moral permission. With these considerations in mind, we will put the oath aside in order to focus more broadly on the legitimizing conditions for government directives that any medical professional act against her better medical judgment, given that not all of those professionals will have taken such an oath. We have seen that for a government directive to be a legitimately authoritative reason for the physician to engage in complicity, it would have to be based on moral reasons that do not stem from a pre-existing moral duty on the part of the professional to render medical aid to others. This is not to say that medical considerations cannot play into the reasons for the directive at all. But they can't be the same medical considerations that would be directly applicable to the physician such that they would already entail that her medical obligation is to act against the interests of the patient in front of her. To explore the contours of such a case more precisely, we will resort to a time-honoured technique in moral theory, the thought experiment [67]. But the contours of our thought experiment will not render it the kind difficult to imagine ever taking place in reality. Imagine the legitimate government is concerned about public order in a way that dwarfs its ability to respond to threats. A long-time brutal dictator has recently been deposed and a democratic government has been installed. The problem is that this dictator was very popular among a minority of the country. In one area in particular, the dictator's policies meant for particular hardship and oppression of the majority group in order to keep the minority in that area in relative comfort. Now, this dictator has an illness that is serious and lifethreatening, but treatable with very expensive procedures that have not yet begun in earnest. Overthrowing the dictator was possible because of his need to seek treatment and was done while he was in the care of his doctors. Allowing the treatment will induce further hardship for the majority in that particular area. Because of the notoriety of the case and the access of the now-free press, all of this is known b m e s 7 nd believed across the country, although the tense political ituation in that particular area is not widely known. It ecomes apparent that if the physician treats her patient, here will be an insurrection in that part of the country and any people will die. Mainly, these will be members of the inority who had benefited from the policies of the dictator, ut that includes many young children recently born during he dictator's regime, which encouraged the minority in that rea to have as many children as possible. While it would sually be the government's responsibility to keep order and ot the physician's, this newly elected government is quite ragile, came to power initially dependent upon the votes f the majority, and does not yet have much independent olice power in that area, relying instead on the support of he majority of the local population. The government would ot be able to put down the insurrection or prevent it, and e are sure that many innocent people will die as a result. urthermore, the insurrection, if successful will institute nother unjust, authoritarian regime with a racist leader n that part of the country, although this time the policies ill be directed against the minority that had benefited efore. Giving in to the demands of those threatening the nsurrection will lead to so much injustice that resisting he insurrection would clearly be the more just option. If e were to imagine that the government had the patient n question under its direct control, we would say that it ould be the correct course of action for the government ot to allow the patient to undergo treatment if it would ead to the insurrection. But instead, the patient is not yet) in government custody and its now re-instituted laws o not allow the government to take custody of any person urrently under medical care for a serious illness. In such a case, it would seem that the government's lawul directive to the physician not to treat the patient would e helping the physician to conform to the best balance of easons. Furthermore, the information that not treating the atient is in conformity with the best balance of reasons s not something that the physician is likely to have direct ccess to in such a situation, and so the government's direcive is helping the physician to conform to the best balance f reasons that apply to her. Finally, it still appears to be a ase of complicity since, while the physician refraining from reating the patient will save more lives, those lives are not nder immediate medical threat. We might be bothered by the thought that risk to the lives f the innocents is still a medical consideration and hence his might still not be a case of complicity. While it does eem true that once the fighting breaks out, there would e a medical need to treat the injured, it is not the kind f risk that would count as a medical consideration before he fact. If it helps to sharpen the example on this front, magine that the insurrection would explode a device that ould vaporize all of the threatened innocents in an instant, eaving no injuries. In such a situation, the threat to life is ot one that medical expertise can mitigate directly. While e all share the duty to minimize the loss of life, the special uty of medical professionals kicks in when their expertise s necessary to minimize that loss of life. Here, there would e no way that their expertise is being called upon to miniize the loss of life and so their duty would be the same as veryone else's. The point of the thought experiment is to how that it is possible for that more general duty to still be 8 g t c w a t p o o i S o t t t s d c o r T h l r h c a y U p t e m t t t b c j i p w g p t a E p t o c p a t g t s o c c o a w m i d d c e a p c o e H T e I T p F T i A A C A D T fi i R reater than the physician's professional medical duty, even hough we usually consider the physician's medical duty to ome before her other moral duties. We generally think it is the duty of governments to deal ith such threats, where possible, and possibly to negotiate round them. It is usually the government's responsibility o do so without interfering with the physician and her atients. But the thought experiment shows the possibility f a legitimate directive that requires complicity on the part f the physician. Again, a virtue of Raz's service conception s that it legitimates such directives on a piecemeal basis. o, it might legitimately obligate certain physicians but not thers, perhaps on the basis of whom they happen to be reating and what the particular wider implications of that reatment might be. Now, one complaint that might arise is that it is hard o imagine a law being drafted that would cover such a ituation and be legitimate. That is, if a law were to direct octors not to treat patients when ordered not to do so by ertain government officials given the threat of certain kinds f insurrection, it is very unlikely for such a law to be geneally legitimate (although, ex hypothesi, still legally valid). he flip-side of the advantage of Raz's piecemeal approach, owever, is that even a generally illegitimate law could be egitimate for certain people at certain times. This is one eason that even an authoritarian government may come to ave greater legitimacy in times of disasters and emergenies, and more democratic governments may justifiably take uthoritarian steps in such emergencies (consider whether ou think Lincoln's suspension of habeas corpus during the S Civil War was illegitimate). One additional issue that should be mentioned is how the hysician is supposed to assess the legitimacy of the direcive. This is where the clash between the physician's medical xpertise and the government's central position becomes ost stark. While Raz says that the legitimacy of a direcive must be ''knowable'' by its subjects [21, p. 147-8], hat does not mean that it must be something about which he subject would always be correct. The key is to rememer that legitimacy is a fact about whether the directive is apturing the best balance of reasons that applies to the subect. It is likely to be very difficult to assess this, although f the subject were in possession of the same facts as the utative authority, the idea is that a clear-thinking subject ould have reached the same conclusion. The physician has reater knowledge about the condition and needs of her atient. It may be that the government doesn't have access o that information but has other information that militates gainst the treatment that the physician is contemplating. ach, we assume, is lacking at least some of the information ossessed by the other. But there is still a fact about wheher the directive is justified based on the correct balancing f those considerations. While neither may have had suffiient information to perform that balancing perfectly, it is ossible that the government's considerations would cover wide range of potential patients and conditions. Where hose considerations wouldn't yield to the interests of a iven patient, then the directive would be illegitimate, even hough the government wouldn't know that and would have till issued the directive. Another problem is that intuitions might differ about ur though experiment. It is true that those with lessK.M. Ehrenberg onsequentialist moral intuitions may think that the physiian's duty is fixed by the patient's interest regardless of the utcome. In the starkest form, we can lay this intuition aside s begging the question against the possibility of ever alloing for legitimate medical complicity. But as long as one's oral beliefs allow for the possibility of conflicting duties, t does appear possible for certain kinds of more general uties to come into conflict with the physician's medical uties in a way that those more general duties still win out. What we have seen is that it is possible to justify medial complicity in the face of a government directive not to xercise a physician's best medical judgment with regard to given patient. While such cases are likely quite rare, comlicity would be morally justified where the non-medical onsiderations upon which the directive was based are nes that would themselves undermine the physician's prexisting moral duty to treat the patient. uman and animal rights he authors declare that the work described has not involved xperimentation on humans or animals. nformed consent and patient details he authors declare that the work described does not involve atients or volunteers. unding his work did not receive any grant from funding agencies n the public, commercial, or not-for-profit sectors. uthor contributions ll authors attest that they meet the current International ommittee of Medical Journal Editors (ICMJE) criteria for uthorship. isclosure of interest he authors declare that they have no known competing nancial or personal relationships that could be viewed as nfluencing the work reported in this paper. éférences [1] Lippman M. 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