Abstract
Abram Brummett and Christopher Ostertag offer critiques of my argument that clinical ethics consultants have expertise but are not “ethics experts” (Brummett and Ostertag 2018). My argument begins within our less-than-ideal world and asks what a justification of a clinical ethics consultation recommendation might look like under those conditions. It is a challenge to what could be called an “inflationary” position on ethics expertise that requires agreement on or rational proof of metaethical facts about the values at stake in clinical ethics consultation. Brummett and Ostertag critique three distinct steps in the argument. Two of those I have a brief answer for, and an assessment of the third demonstrates that Brummett and Ostertag do not consider the premise upon which I based my account. Instead, they assert a counter-premise without argument, which at best results in a stalemate between our two accounts. However, the reasons supporting my premise still seem to me to be stronger, so I am in the end unconvinced by their critiques.
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Notes
A suppressed epistemological premise here is that it must also be possible for clinical ethics consultants to come to know the morally correct positions or judgments.
There are several avenues for such a consensus view. For example, it could derive from the bare agreement of the majority of a society (how much constitutes a majority is not clear). It could derive from an argument conclusively proving the foundations of morality, whether or not most people in fact agreed with it. Or it could result from people merely agreeing to be governed by a particular moral account (even without agreeing that it’s correct). Often, though not always, these arguments are based on varying views of moral realism, i.e., the view that there are moral facts in the world and that we can know them.
Wesley Smith seems to rely on this kind of argument, for example: “… training in bioethics adds little to resolving outcomes, since the field cannot provide ultimate verdicts on moral questions” (2001, p. 4, emphasis added). Satel pursues a similar line: “The matter of ethical expertise—what it looks like, who can claim it—is a profound one. Bioethics’ place in the academy, in the clinical realm, and in society turns on it. For most of us, the very idea of ‘right’ answers to complex moral and philosophical dilemmas such as euthanasia, embryonic stem cell cloning, or organ remuneration is absurd on its face. After all, deriving an “answer” depends upon which type of moral theory one favors” (2010, emphasis added).
I leave aside the possibility that if such an account existed, it too could justify ethics expertise in the field.
Particularly given the fact that at some point, one’s general moral commitments likely have some stance on or implication for how one views the duty to abide by, or transgress, human, local laws.
Others have argued for similar distinctions. Judith Jarvis Thompson, in her book Normativity, argues that there are two main classes of normative statements: “directives” and “evaluatives,” and they are not both moral statements: “Our judgment that A ought to be kind to his little brother is presumably a moral judgment; our judgments that B ought to move his rook and that C ought to get a hair cut are presumably not moral judgments” (2008, p. 1). In another example, Jonathan Dancy has edited a volume (also entitled Normativity) that addresses mainly epistemic normativity (2000).
“The normativity of all that is normative consists in the way it is, or provides, or is otherwise related to reasons. The normativity of rules, or of authority, or of morality, for example, consists in the fact that rules are reasons of a special kind, the fact that directives issued by legitimate authorities are reasons, and in the fact that moral considerations are valid reasons [respectively]. So ultimately the explanation of normativity is the explanation of what it is to be a reason, and of related puzzles about reasons” (Raz 2000, pp. 34–35).
Obviously, one way to justify a moral decision is to show that it is true as a matter of fact. Since I am arguing that this is not possible in a pluralist context given our different foundational beliefs about what would establish matters of moral fact, I am investigating other opportunities for justification.
Another option is to adopt an individualist procedural solution to this problem, i.e., defaulting to allowing individuals to make decisions for themselves (Engelhardt 1996, especially ch. 2; the default in other countries may be to families rather than individuals; see Fan 2015). There is much to recommend this default strategy, and in fact it tends to be the norm rather than the exception in the United States. However, I also argued (Rasmussen 2016, §IV) that the problem with this account is that it still requires us to articulate a standard of justification for recommendations under conditions of moral pluralism; namely, the value-laden decision about the necessary and sufficient conditions for deeming someone to be autonomous or for determining appropriate substitute decision-makers.
Consider a common example: a patient lacks capacity and has not named a decision-maker. Moreover, each of two potential surrogates is equally positioned to be a decision maker according to the law and to caregivers’ evaluation of their relationship with and knowledge of the patient, yet they disagree about what ought to be done. We cannot defer to the individual in question or to a named or legally established proxy. What should be done? We need a conception of justified or successful ethical decision-making under conditions of pluralism in order to make any progress in this case.
One could argue that this patient was a practicing member of a given faith and that the appropriate religious leader should be consulted. But this still requires value-laden decision-making within a pluralist context: what constitutes evidence for membership in a faith community and for the degree of adherence this individual observed with respect to that faith? Self-declared allegiance? Presence at religious ceremonies? The attestation of their family members? The reader can supply multiple examples of cases in which these assumptions would be wrong.
This is part of what makes decisions in a case like that of Tim Bowers, a deer hunter paralyzed after a fall from a tree, so difficult (O’Malley 2013). One widely-shared value in the United States, for example, is respect for autonomy (in this case, Bowers’ declared wish to be removed from life support), yet another is a recognition that, empirically speaking, “the quality of life, self-esteem, and outcomes that emergency health care providers imagine after [spinal cord injury] are considerably more negative than those reported by [spinal cord injury survivors]” (Gerhart et al. 1994, p. 807). Whose autonomy should we respect: present Tim Bowers, or future Tim Bowers’ statistically likely position?
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Rasmussen, L.M. Against Inflationary Views of Ethics Expertise. HEC Forum 30, 171–185 (2018). https://doi.org/10.1007/s10730-018-9353-8
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DOI: https://doi.org/10.1007/s10730-018-9353-8