Abstract
The previous two chapters were primarily concerned with justifying the demands of persons for autonomy as being ethically respectable in the interplay of personal autonomy and biographical identity. Now the question is whether arguments for a justification of paternalistic medical actions can be developed on the basis of the conception of biographical identity unfolded here. Thus the ethical line of attack of the previous two chapters will be reversed; at the same time, the general strategy of the previous chapters will be retained and the theme of medical paternalism limited to the question of the suitability of personal identity as a justifying principle in biomedical ethics. For this reason, in the following not all the aspects of paternalism can be taken up: only the area of medical action will be taken into consideration. Nor shall all justification strategies which have been developed in the almost unwieldy literature be discussed and subjected to critical examination in the course of this chapter. But rather, it will be shown that personality is a relevant aspect in the justification of paternalistic medical action.
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Notes
- 1.
In this chapter I also start from the simplifying assumption that personality and the capacity for competent, autonomous decisions are coextensive determinations. Furthermore, I understand competence such as to include voluntariness. And I assume that it is unquestionable in the discussion of the evaluation of A’s paternalist intervention that B’s actual and documented decision is competent in the sense that prima facie it deserves to be respected.
- 2.
This finding is bit surprising, as Beauchamp tries to manage without such a conception of personality. The deliberations presented in this chapter can thus be counted as additional arguments against his attempt (cf. Chap. 5).
- 3.
Those readers who have already been convinced by the argumentation in the previous chapter of the ethical relevance of this difference can understand the deliberations presented here as an extension of their scope. The other readers might like to view it as a cumulative argument for my thesis that the personality and biographical identity represent a significant ethical principle in biomedical ethics.
- 4.
The pejorative connotation of the term “paternalism” must therefore be stringently ignored in our context.
- 5.
For a recent analysis of this context cf. Düber (2016).
- 6.
- 7.
At this point I cannot deal with the epistemic problem of determining whether the external conditions are met.
- 8.
To be exact, the tenth condition formulates that A shall not have a specific belief in action. I presume the simplifying assumption that one can understand not having a belief p as a logical conjunction of other beliefs. Those readers who do not accept this assumption can alternatively interpret condition (10) as external.
- 9.
This characterization is adequate for the purposes of this chapter, even if it is not satisfactory from the viewpoint of the theory of action. Incidentally, the above definition does not commit me to a causal theory of action, since no ethical difference is to be justified by the distinction between doing and omitting.
- 10.
However, medical experiments are not included, no matter whether serving the future use of B or entirely for someone else’s use.
- 11.
This also applies in the context of psychopathies such as the clinical picture of so-called multiple personalities; the question of how the principle of personal identity can be brought to bear in the context of psychopathies is beyond the scope of this study; cf. Gunnarsson (2010).
- 12.
The situation is different when A performs a medical act (e.g. an amputation) without training in an emergency with the emphatic consent by B. But this case is certainly not paternalistic action.
- 13.
This formulation is at least misleading, since one can very easily understand the qualification of the excluded cases as “not substantial” such that they are ethically without severe problems or even justified. This surely wouldn’t be plausible since nudging etc. surely can be ethically problematic or wrong; cf. Fateh-Moghadam and Gutmann (2014), Gutmann (2014) and Schöne-Seifert (2009) for such critique. Therefore, I have to make explicit that “substantial” here means only that these cases do cause deep ethical problems on a conceptual level.
- 14.
Through the inclusion of this intervention criterion I am allowing for objections which show that the criteria of coercion towards B or the limitation of B’s freedom are too narrow; cf. on this the discussion in Kleinig (1983, p. 5 ff.).
- 15.
Cf. VanDeVeer (1986, p. 19); my formulation diverges from VanDeVeer’s analysis, because he limits paternalistic actions on the one hand to the interference in actual values (“operative preferences, intention, or disposition”) whilst on the other hand not limiting it to competently and autonomously held values. In contrast, I firstly also include intentions, then secondly, extend the relevant area to the competent decisions documented in advance directives and thirdly, limit the area to just such competent decisions made by B. In the previous chapter I already developed my reasons for taking into account not only actual competent decisions, but also those manifested in advance directives. The other divergence from VanderVeer’s tactic arises from his endeavor to develop as comprehensive a conception of paternalism as possible whereas I am trying to isolate the most contentious cases for ethical theory.
- 16.
Since the availment of a right not to know can also be a legitimate expression of personal autonomy; vgl. Quante (2014b, chapter VII).
- 17.
The example frequently mentioned in the literature, in which a physician, on being asked by a dying mother whether her son is OK conceals that he was killed in a traffic accident the previous day, is, however, not a case of medical paternalism. Physicians can also perform paternalistic actions which are not medical actions. This fact, and the fact that non-physicians can also perform some medical actions, does not allow the area of paternalistic actions relevant to my questioning to be defined through the proviso that A must be a physician. I have therefore chosen the alternative strategy, even though I thereby have to take into account the less attractive consequence that there are possibly cases of justified paternalistic action by physicians which I cannot appropriate. However, I fail to see how the charitable lie can constitute a specific problem of medical paternalism, whereas some paternalistic actions by relatives are definitely applicable. For this reason I consider my strategy to be more fitting.
- 18.
The reason for this is first and foremost that the permissibility of human experiments in the medical field is not primarily a question of paternalism and least of all one of paternalism towards competent patients (as in the sense of paternalism defined here). Since I am reconstructing the problem of paternalism as a conflict between personal autonomy and patient wellbeing, it is expedient to ignore the non-congruent problem of the permissibility of human experiments; cf. McNeill (1993).
- 19.
Here, the condition of competence must be understood as a threshold concept. It does not mean that a greater measure of competence on B’s side requires a higher level of paternalism on A’s side, even if it is true that the concurrence of B’s decisions that are the expression of his personal autonomy to a greater degree does demand stronger bases of paternalistic justification on A’s side than the concurrence of less well anchored decisions by B; cf. Kleinig (1983, p. 9). However, it does mean here that only from a certain measure of competence onward can one even speak of paternalistic actions towards B (cf. also Faden and Beauchamp 1986). Kleinig (1983, p.69), who interprets this condition as the voluntariness of B’s decision, comes to the same conclusion. Please note that here I understand a competent decision to be one which implies voluntariness in the sense of the absence of external coercion, disruptive psychological factors or massive misinformation.
- 20.
Arneson (1980) also takes documented competent decisions into account. However, his definition (ibid. p. 471) does not count the intervention into an actual competent decision by B as paternalism if B’s previous decision explicitly overrules the actual one. A conception of paternalism without any acknowledgment of documented decisions is developed e.g. by VanDeVeer (1986, p. 19 and p. 22 ff.); it should also be noted that clauses (i) and (ii) of my condition (5) can both be fulfilled at the same time (it is not a matter of an exclusive “or”). This was relevant to my analysis of Ulysses contracts (cf. Sect. 7.4.2 of the previous chapter).
- 21.
So it is possible that A gives recurring paternalistic justification of condition (7) for x even though x isn’t a paternalistic action at all.
- 22.
A classical formulation of the Harm-to-Others-Principle as regards state paternalism can be found in Feinberg (1986, p. xvi): “It is always a good reason in support of penal legislation that it would be effective in preventing (eliminating, reducing) harm to persons other than the other (the one prohibited from acting) and there is no means that is equally effective at no greater cost to other values”.
- 23.
It is not possible for me to go into detail about the concept of harm here. On the one hand, it includes minimization of the probably achievable wellbeing of the harmed individual, whereby wellbeing is not limited to experiential interests. On the other, the death of an individual can itself also be harmful for this individual if further existence had represented wellbeing for this individual; cf. on this traditionally controversial question of whether death can be an evil (Feldman 1992, Chap. 8 and 9).
- 24.
For the application of the Harm-to-Others-Principle in case (ii) cf. the third section of this chapter.
- 25.
Competence here includes B knowingly precipitating this limitation of his wellbeing through his decision. An intervention aimed at determining whether B’s decision is competent in this sense is interpreted as weak paternalism by Feinberg, cf. Feinberg (1986, p. 12 – there Feinberg used the distinction of “soft” versus “hard” paternalism). However, it is more sensible not to regard these interventions as forms of paternalistic action (cf. also the discussion in the third section of this chapter).
- 26.
Such argumentation can be found in e.g. Regan (1983, p. 122 ff.); cf. also the discussion of this strategy in Kleinig (1983, p. 45 ff.) and VanDeVeer (1986, p. 155–163). Ludwig Siep (1987, p. 253 f.) also sees in this option – above all of Derek Parfit’s version of personal identity – positive opportunities for ethics, but is more skeptical than Parfit as regards the trade off with possible costs. Since I myself consider even the underlying theory of personal identity to be mistaken, this strategy is excluded here through condition (1).
- 27.
The case described by Fairbairn (1995, p. 168), in which a woman adapts her husband’s nutrition for reasons of animal ethics without his noticing, therefore does not count as paternalistic action. Fairbairn formulates a definition of paternalism which forgoes my seventh condition (ibid. p. 167 f.).
- 28.
The expression “promote wellbeing” can be rendered even more precisely; cf. VanDeVeer (1986, p. 22): “A does (or omits) x with the primary or sole aim of promoting a benefit for B [a benefit, which, A believes, would not accrue to B in the absence of A’s doing (or omitting) x] or preventing a harm to B [a harm which, A believes, would accrue to B in the absence of A’s doing (or omitting) x]” (The abbreviations have been adjusted to mine; M.Q).
- 29.
In his earlier publications, Feinberg uses the characterizations “weak” and “strong”, whereas later he uses “soft” and “hard”. Both characterizations are according to his own information “perfectly interchangeable” (Feinberg 1986, p. 377 fn. 16). In the following I use the distinction between strong and weak paternalism that is currently more in use in the literature of biomedical ethics; cf. Beauchamp (1995, p. 1915).
- 30.
It is clear that according to my own definition of paternalism this is not a case of paternalistic action. Feinberg’s remark that this action would appear paternalistic under a certain aspect expresses the fact that he himself has accepted Beauchamp’s criticism and meanwhile argues the thesis that “soft paternalism is really no kind of paternalism at all” (1986, p. 16). My discussion in this section does not serve to rehabilitate this distinction, but rather, that I wish to show that Beauchamp’s criticism can be grounded through my conception of personality.
- 31.
In a somewhat different context Beauchamp uses the term “injury” instead of “harm” to circumvent problems in Mill’s conception of “harm”; cf. Beauchamp (1977, p. 71). I will not discuss these complications in the following and use both terms interchangeably. This means that “harm” contains the connotation of requiring ethical justification.
- 32.
In contrast to mere behavior, actions are not purely acts of nature, even when they for this reason do not need to have anything supernatural about them. However, they are intended by the agent. If one intervenes in a purely natural process initiated and intended by an action by e.g. diverting a boulder that is rolling towards a group of people, then one can assess that as an indirect intervention in the competent decision by the assassin. But the intervention can be justified through recourse to the Harm-to-Others-Principle and is thus likewise no paternalistic action.
- 33.
Here I am not dicussing the additional complications of assumptions of probability and B’s risk-taking.
- 34.
To be exact, herewith cases are being captured in which one intervenes in B’s decision, action or behavior because one regards the probably resulting harm as unintentional. The other kind of cases, in which one intervenes sporadically in order to find out if B intends this consequence or knowingly takes it into account, are not directly embraced in this way. Such temporary interventions will not be dealt with in the following. I view them as occasional interventions with the aim of primarily clarifying the ethical situation rather than availment of paternalism or the Harm-to-Others-Principle.
- 35.
The example given by John Stuart that has become a topos is that of the man who intends to cross a bridge and does not know that it will collapse when he sets foot on it.
- 36.
In the case of mere behavior, it is a matter of a purely natural process; in the case of an action one must decide between those that can be described as intended and those that are the expression of personal autonomy. There are deliberate actions which are too isolated from the agent’s personality to be able to be counted as the expression of personal autonomy (cf. Sect. 8.3.4 of this chapter).
- 37.
For the attempt to compass the unity of a self in a frame of naturalistic theory, i.e. exclusively in the observer perspective, cf. for example Brook (1994). A comprehensive theory in which both aspects of consciousness (the naturalistic unity of self and the evaluative level of personality) are tied to each other is developed in Hurley (1998). Hurley also differentiates between various forms of the distinction internal versus external, since this distinction has a different meaning in the personal perspective tied to the participant perspective and the sub-personal naturalistic perspective coupled to the observer perspective respectively.
- 38.
This distinction of two forms of ‘mineness’ (Jemeinigkeit) is not identical with the differentiation between the consciousness of the demarcations of self and the subject’s action knowledge as proposed by Graham and Stephens (1994). The two differentiations are independent of one another and have their own right for various diagnostic or theoretical purposes.
- 39.
This interpretation is contradictory to the analysis by Häyry (1991, p. 65 f.), who deduces from the fact that competence accumulates continuously and that therefore the cases meant by Beauchamp and Kleinig merge that “there is no clear-cut separation between cases of hard and soft paternalism” (ibid. p. 66). Admittedly, I share their opinion that in the classification it depends at all events on the concrete situation: “So much depends on the particular circumstances and relationships between people that no precise and concise overall measuring methods can be spelled out anyway” (ibid. p. 73). This basic particularistic insight does not however preclude that there are also clear cases. But above all, the trained perception of such a situation does not depend on such measuring systems, even if such objectivizations, whether through measuring processes or the specification of principles, are indispensable for the level of justification; cf. Quante and Vieth (2002).
- 40.
I am thereby limiting myself to the weaker variant, whereby paternalistic interventions are ethically admissible. However, I will not discuss the question of whether they are moreover possibly even ethically imperative; cf. Fulford (1989, p. 189 f.). From the ethical viewpoint, this involves a continuous spectrum of aspects needing to be weighed up. If, in a case, the wellbeing and integrity of the patient bear great weight, then a paternalistic intervention in his minimally competent decision or action can be ethically imperative.
- 41.
I have already rejected the “argument of the future selves”, since it rests on an implausible conception of personal identity.
- 42.
The remaining differences will either be traced back to deviant metaethical and ethical premises or have to be understood as the expression of diverse emphasis.
- 43.
I differentiate these two levels, which one must keep apart in the development of a holistic conception of personality, in Quante (1997b). Liberalists tend always to attribute to a holistic conception in the ontological sense the thesis of ethical holism, according to which it is justified to override the wellbeing of an individual in favor of general social wellbeing. However, this argumentation rests on a “non sequitur”; cf. Quante (2001c).
- 44.
The limits of such a justification have, however, been reached when the marginality of wants and convictions which are to be overruled paternalistically cannot be made plausible (think of Faust’s ‘two souls’). Different from such cases of massive psychopathies, which due to absence of competence do not count as paternalistic actions in my theoretical framework, an intervention in such a torn personality, whilst being paternalistic, would not be justified in my view. The coherence of personalities permits tensions, so that one cannot intervene through recourse to integrity. The cases of actions arriving at installing autonomy or to help in the development of an own personality (e.g. upbringing) or to restore the capacity of making competent decisions discussed by Kleinig (1983, p. 67 f.), Fairbairn (1995, p. 185 ff.) or Harris (1985, p. 203) do not count as paternalistic action according to my understanding.
- 45.
If one takes the empirical I as merely the sum total of the factually psychological elements of a subject, then this lacks the evaluative and critical-normative dimension of autonomy; cf. Wolf (1990, Chap. 2). In contrast, if one conceives the real self on the basis of e.g. fundamental ontology, an essentialist philosophy of history or a normative theory of the noumenal self, the there is a risk of ignoring a person’s real wants in favor of a philosophical construction; cf. for an analysis in which aspects of an idealist and a social conception of personality are combined, Bosanquet (1910).
- 46.
This kind of usage of the hypothetical rational consensus also contains the implausible premise that one can segregate ideals and convictions, or questions of value and fact cleanly (i.e. analytically); cf. on the effects of these models on the self-image of the biomedical ethician, critically Caplan (1992, p. 33 ff.) and Brock (1993, Chap. 2).
- 47.
I have suggested to take this into account via choosing a default-and-challenge strategy in analyzing personal autonomy; cf. Quante (2013b).
- 48.
The interval [t1-t2] only begins when it has been established that B has made his decision knowingly and deliberately. Before that, an intervention is not paternalistic action according to my definition.
- 49.
This could also be justified on the misguided basis of a metaphysics of “successive selves”, in which the new personality would be counted as a new individual. However, presupposing such a conception the Harm-to-Others-Principle would be appropriate and no paternalistic intervention would be on hand.
- 50.
It is not my aim to discuss here whether such interventions can be ethically justified, although in both cases one must be very cautious with the intervention in personal autonomy; cf. Walker (1994).
- 51.
Alongside the case of personality-changing drugs, an aspired sex change is also perhaps a case of this third type. However, here the intervention mostly serves to clarify whether B is certain enough and adequately informed about the various aspects of his desire (and is thus not paternalistically motivated). However, I do not wish to allege that a sex change results in a personality change in every case. The more the orientation to the other sex formed B’s personality before the sex change, the more probable it is that that is not the case.
- 52.
The possibility that “it could be the case that undergoing preference change against one’s will can improve one’s life all things considered” is also conceded by Arneson (1994, p. 74 f. fn. 27), whereby one must not interpret “life” as biography. His ethical valuation of the permissibility of such an intervention turns out to be less clear cut, however.
- 53.
For simplicity’s sake, I am here assuming that one can only intervene in B’s personal autonomy paternalistically by intervening in competent decisions or autonomous actions. This must then be colligated so broadly that the limitation of the capacity for competent decisions and autonomous actions through the administration of drugs or unnoticed and undesired manipulations of B’s convictions and ideals can also be subsumed under these.
- 54.
Such a model is above all necessary in the area of the treatment of the chronically sick or patients with permanently only limited competence, since the treatment target cannot here consist in the restoration of the patient’s complete autonomy; cf. Caplan (1992, Chap. 14 and 15) and above all Agich (1993).
- 55.
Such a cooperative model can thereby find its limits in an insoluble conflict of values or incompatible convictions between physician and patient. Then, if the Harm-to-Others-Principle cannot be implemented, the question of paternalistic intervention arises, whereby the respect for personal integrity should normally tip the scales; cf. O’Neill (1984, p. 176 f.).
- 56.
To characterize this difference, the concept of “parentalism” (Kultgen 1995) has been suggested. This should not only eliminate the sexist connotation of paternalism, but also express that no paternalistic action is existent here.
- 57.
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Quante, M. (2017). Medical Paternalism. In: Personal Identity as a Principle of Biomedical Ethics. Philosophy and Medicine, vol 126. Springer, Cham. https://doi.org/10.1007/978-3-319-56869-0_8
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