Abstract
H. Tristram Engelhardt, Jr.’s critical gaze has come to rest more than once on the practice of clinical ethics consultation; he has articulated potent arguments against the intellectual coherence of the field, labeling it a “conceptive ideology.” In this essay, I discuss Engelhardt’s critiques and explore what implications they have for the practice. I also argue that his critiques themselves rely on contestable metaethical/metaphysical assumptions about the need for certainty in moral justification. An alternative metaethical assumption, that we cannot have certainty regarding moral decisions (in the absence of stipulated metaphysical foundations such as religion), implies that we must search for what constitutes “non-certain justification.” A full articulation of such “non-certain foundations” is beyond the scope of this paper, but I do explore some implications for the practice of clinical ethics consultation of an acceptance that moral judgments in a pluralist society cannot be taken as certain.
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Notes
- 1.
See (Engelhardt 2002, 72, particularly footnote 40), in which he discusses cases that “stripped medicine of many of its guildlike self-regulatory privileges….”.
- 2.
- 3.
However, a clinical ethics consultation which exists within a robust moral community consisting of “a body of men and women bound together by common moral traditions and/or practices around a shared vision of the good life” – a clinical ethics consultation among moral friends, in other words – makes no such claim to rational proof (Engelhardt 1996, 7). Engelhardt explicitly notes this possibility: “In health care institutions with a strong religious affiliation or with very particular morally concrete mission statements, ethics consultants may very well be expected to play a frankly normative moral role by giving actual normative moral direction” (2009, 300).
- 4.
This labeling of consultation as “arriviste” opportunistically ignores the effect of time. For someone so historically situated and inspired, Engelhardt is suspiciously atemporal when he compares the professions of clinical ethics consultation and medicine, because these internal professional values had to be worked out in medicine and law in just the way they are being worked out in clinical ethics consultation. One can easily imagine an Engelhardt of old critiquing the early scribes of the Hippocratic Oath in similar fashion; after all, different versions of the Oath swear to a Christian God or the Greek gods or promise to teach the sons of fellow physicians for free or not (Reiser et al. 1977, 3–4).
- 5.
This is a significant part of the reason consultants say they seek professional status – because a profession can establish a self-understanding and exclude those who fail to comply with it, thus reassuring consumers of the service that they can rely on a consistent product. However, Engelhardt undercuts the force of this point by observing that “there is no hard evidence of serious harm to others from the current fluid character of this group of service providers,” and argues that credentialing consultants with a brittle and static set of skills “runs the risk of curtailing the natural adaptation of this service enterprise to changing needs and conditions” (2009, 304).
- 6.
- 7.
As Engelhardt puts it, “Justified action requires choosing one particular account of proper action” (2002, 81).
- 8.
Even here, he assumes that certainty is required for justification, and derives his solution from a transcendental argument. See Khushf (Chap. 7, this volume) for an extensive consideration of the mechanism and success of Engelhardt’s transcendental argument.
- 9.
- 10.
See Khushf’s excellent essay for a thorough treatment of the mechanism of and problems with Engelhardt’s transcendental argument for the principle of permission. Khushf argues that one of the problems with Engelhardt’s argument is that “it assumes that demonstration of contingency associated with a standard disqualifies any ethical theory using such a standard from serving as an ethic for moral strangers” (Khushf, Chap. 7, this volume, 100). But because in some cases decisions must necessarily be made, contingency is omnipresent, and Khushf argues that “Engelhardt needs to provide criteria that enable us to distinguish which kinds of contingency are problematic” (Khushf, Chap. 7, this volume, 100). In this respect, I think my response to Engelhardt’s work is very similar to Khushf’s. I have certainly benefited from reading Khushf’s work during the preparation of this essay.
- 11.
As Engelhardt puts this point, “Without such permission or consent there is no authority” (Engelhardt 1996, 122).
- 12.
- 13.
- 14.
Engelhardt in fact proceeds very far in this direction: “…as long as health care ethics consultants act within the constraints of law and public policy, it is no more unethical to be a well-paid partisan ethicist for hire than for a lawyer to be the well-paid advocate of a client” (2011, 141); and “Ethicists do not have a professional integrity, history, and character that are independent of the institutions purchasing their services, as is the case with regard to the professional integrity of physicians and lawyers who can practice independently of hospitals or law firms” (142).
- 15.
See, for example, the proposed code of ethics for the field (ASBH 2014).
- 16.
This does not mean that we should behave as atomic individuals and leave each other to our own devices with minimal interaction. This “non-certainty” is compatible with a wide range of interactions between people, including strongly, considerately, lovingly, or harshly worded conversations regarding what one person feels about another’s choices. It is also compatible with refusing to participate in a choice or situation that one finds reprehensible.
- 17.
I hasten to acknowledge the difficulty this may pose. Anecdotes are readily available of consultants who attempt the “on the one hand/on the other hand” approach and are deemed useless by clinicians. But the need to be helpful to healthcare providers does not erase the need to be honest and transparent, nor does it mean that a brief acknowledgment of the ways a variety of moral foundations could cut in a given situation would be out of place.
- 18.
I have, however, begun to work in this direction in a variety of papers. See my (2011a) for an argument about proscriptive standards in clinical ethics consultation, and my (2011b) for arguments regarding the non-certain expertise which consultants can possess. In a separate paper in preparation, I am arguing for the inclusion of a checklist as a means of achieving rigor in a consultation, where the checklist serves as a repository for important features of cases that should not be overlooked.
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Rasmussen, L.M. (2015). Non-certain Foundations: Clinical Ethics Consultation for the Rest of Us. In: Rasmussen, L., Iltis, A., Cherry, M. (eds) At the Foundations of Bioethics and Biopolitics: Critical Essays on the Thought of H. Tristram Engelhardt, Jr.. Philosophy and Medicine, vol 125. Springer, Cham. https://doi.org/10.1007/978-3-319-18965-9_11
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