Pragmatic Judgments in Direct Patient Care: Moral Theory at the Beginning of Clinical Ethics Consultation 3662668181, 9783662668184

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Bernhard Bleyer

Pragmatic Judgments in Direct Patient Care Moral Theory at the Beginning of Clinical Ethics Consultation

Pragmatic Judgments in Direct Patient Care

Bernhard Bleyer

Pragmatic Judgments in Direct Patient Care Moral Theory at the Beginning of Clinical Ethics Consultation

Bernhard Bleyer Faculty of Humanities & Cultural Studies University of Passau Passau, Germany

ISBN 978-3-662-66819-1 ISBN 978-3-662-66818-4 https://doi.org/10.1007/978-3-662-66819-1

(eBook)

© Springer-Verlag GmbH Germany, part of Springer Nature 2023 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer-Verlag GmbH, DE, part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

For Elena

Preface

This study was conducted in the course of completing my habilitation. It was prepared in order to obtain the “venia legendi” in the subject of moral theology at the Catholic Private University Linz. The title of the entire research project was “Deciding Well in Difficult Situations. Ethical issues in the practice of health care professions”. Professor Dr. Michael Rosenberger took on the responsibility of supervision. Without him, the project would not have been successfully completed. Professor Dr. Dr. Walter Schaupp from the Karl-Franzens-University Graz supported me with his advice throughout the process. This book is the English edition of a text originally published in German. For this publication, the text of the individual chapters was revised and the relevant references on the current state of research was taken into account. As with the German-language edition published under the title “Pragmatische Urteile in der unmittelbaren Patientenversorgung. Moraltheorie an den Anfängen Klinischer Ethikberatung” (2019), Dr. Brigitte Reschke of Springer-Verlag has again provided invaluable support to ensure that the ideas are accessible to a public audience. I would like to take this opportunity to thank Celina Ford. Her precise corrections of the manuscript made the publication possible. Thank you also to Marie-Therese Miess for her insights into the proper citation of English-language literature. Passau, Germany 1 October 2022

Bernhard Bleyer

vii

Contents

1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Subject and Method of the Investigation . . . . . . . . . . . . . . . . . . . . 1.2.1 Subject of the Investigation . . . . . . . . . . . . . . . . . . . . . . . 1.2.2 Method of the Investigation . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part I 2

3

1 1 3 3 9 10

Birthplace USA: Clinical Ethics Consultation and Pragmatism

Three Stages in the Development of Clinical Ethics Consultation . . . 2.1 Karen Ann Quinlan: Yes to Ethical Decision Making in the Field (1975/1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.1 The Prehistory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.2 The Judgment of the Supreme Court of New Jersey . . . . . . 2.2 The Babies Doe: No to the Centralization of Ethical Judgment (1982/1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 Baby Doe (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 Baby Jane Doe (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 The Presidential Commission: A Recommendation on Ethical Pragmatics (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 The “Deciding to Forego Life-Sustaining Treatment” Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 The Model Guidelines of the HHS and the Criteria of the JCAHO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Balance After Three Stages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17 21 21 22 29 30 33 38 40 43 48 57 60

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Contents

Part II

A Theory of Concrete Judgment: The Influence of Pragmatism on the Idea of Clinical Ethics Consultation

Basic Features of an Ethical Theory of Classical Pragmatism . . . . . 4.1 Review of Classical Pragmatism . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Ethical Understanding of Classical Pragmatism . . . . . . . . . . . . . . 4.2.1 Fragments of an Ethical Theory in Charles Sanders Peirce and William James . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.2 Ethical Theory According to John Dewey . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . .

65 65 68

. . .

68 83 92

5

Applied Pragmatic Ethics in Clinical Ethics Consultation . . . . . . . . 5.1 Theological Application Theories of Clinical Ethics . . . . . . . . . . 5.2 Pragmatic Application Theories of Clinical Ethics . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . .

101 101 105 109

6

Pragmatic Justification of Clinical Decisions: An Attempt at a Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Field of Evidence I: Pragmatism and the US Northeast . . . . . . . . . 6.2 Field of Evidence II: The Pragmatic Concepts for Clinical Ethics Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Field of Evidence III: Pragmatism and the Ethical Theory of Clinical Ethics Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.1 Indicator I: The Situational Practice as the Initial Situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.2 Indicator II: Discursive Multidisciplinarity as a Characteristic Feature . . . . . . . . . . . . . . . . . . . . . . . . 6.3.3 Indicator III: Argumentative Counselling as an Enabling Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.4 Indicator IV: The Formal Judgment Process as an Ethical Principle of Truth . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

7

113 113 115 117 118 119 123 125 126

Balance Sheet and Answer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Chapter 1

Introduction

1.1

Question

The patient was 39 years old. She had been accompanied by a social psychiatric service for 15 years. Originally treated for anxiety, the clinical picture changed. A chronic personality disorder was diagnosed. Several hospitalizations followed. After many years of medication and phases of psychotherapy, the patient’s condition had largely stabilized. She had begun a romantic relationship with another patient and became pregnant. Initially, she was unsure about whether to keep the child or terminate the pregnancy. Concerned about her still unstable relationship with her partner, her age and the side effects of many years of drug treatment, she became convinced that she could not possibly give birth to a healthy child. During a stay in a psychiatric hospital, this was made an issue in a meeting of the treating team. A massive conflict arose. One of the doctors, who was not her attending physician, stated firmly that a person who was unable to cope with herself could not be responsible for a child. This statement angered the entire team, which consisted mainly of women who supported the patient’s right to motherhood: The patient was emotionally unstable but very intelligent and considerate. One could not deny a psychiatric patient the right to motherhood. There were many examples of psychiatric mothers taking good care of their children, or the birth of a child even stabilizing a situation.1 The dispute about whether one should advise the patient in her conflict, whether one was obliged to protect the life of the child and whether one could speak of a selfdetermined decision in this situation, led to the decision to seek external advice. A clinical ethics consultation was to be requested. Further ambiguities arose. Most team members were familiar with social psychiatric counselling, Balint groups, supervision, pastoral counselling, medical consultations, case conferences and 1

Cf. Anonymous (2016), p. 98.

© Springer-Verlag GmbH Germany, part of Springer Nature 2023 B. Bleyer, Pragmatic Judgments in Direct Patient Care, https://doi.org/10.1007/978-3-662-66819-1_1

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2

1

Introduction

other counselling settings. What was “ethical” about a slightly differently organized meeting model was unclear to many. This study attempts to investigate this unresolved issue and therefore goes to the historical and systematic origins of clinical ethics consultation. It attempts to answer the question: Which ethical theory shaped the understanding of clinical ethics consultation in its early years? It places the search for answers under the title “Pragmatic Judgments in Immediate Patient Care. Moral Theory at the Beginnings of Clinical Ethics Consultation.” In doing so, the study focuses on a specific, institutionally framed area of communication in modern health care—ethics consultation in hospitals—and explores its background assumptions in terms of action theory. In order to highlight classical pragmatism as the essential school of thought that shaped the early phase of clinical ethics consultation, the study is able to follow the lead of previous research that suggests pragmatism as that background theory. Its proximity in content and form to theories of ethical decision-making within clinical ethics consultation realizes the principle that “good clinical bioethics is necessarily pragmatic, at least in practice.”2 How did the question of this study come about? First and foremost, it is the term “ethics committee” itself that requires clarification in terms of conceptual history and content.3 Secondly, the description of the tasks of clinical ethics consultation (ethical case consultation, ethical guidelines, ethical training courses), which is due to the standardisation efforts, also took over the emphasis on the ethical character.4 Overall, it is noticeable in this subject area that, in view of the large number of empirical studies, those on fundamental ethical foundations have been published much less frequently.5 Thirdly, it should be noted—and this will be the subject of Part II—that, from the mid-1980s onwards, renowned authors such as Stephen E. Toulmin, Jonathan D. Moreno, Joseph J. Fins, D. Micah Hester and John D. Arras pointed to connections between clinical ethics consultation and the theory of pragmatism. The study has to deal with the finding that neither in classical pragmatism nor in the theoretical drafts on clinical ethics consultation a clear and uniform distinction between the terms ethics and morality is to be found. Therefore, where necessary, specific reference will be made to existing differentiations in the individual chapters. In the overall conduct of the work, the term “ethics” will come to the fore as the understanding-oriented reflection on good and just action.

2

Light (2002), p. 84. Cf. Fox (1990), p. 209. Cf. Glaser (1989), pp. 275 and 276. 4 Although there is no strictly uniform international designation of the fields of activity, it is significant that the “ethical” claim to action is consistently expressed in the terminology, as in the English terms “ethics consultation”, “moral case deliberation”, “ethical decision-making”, “ethics committee” or in French “consultation d’éthique”, “unité d’éthique clinique”, “considérations éthiques”, “délibération morale” or in Spanish “comité de ética”, “educación ético-clínica”, “consulta de ética clínica”. 5 Exceptions are for example, Kettner and May (2001), pp. 487–499. Molewijk et al. (2011), pp. ii– iii. Fröhlich (2014), pp. 57–164. Further research is discussed under Chap. 5. 3

1.2

Subject and Method of the Investigation

3

In order to provide a comprehensible answer to the question posed at the outset, the object and method of the study are then explained. Part I reconstructs the history of the emergence of clinical ethics consultation in its institutionalized form, the clinical ethics committees. It establishes that the USA, particularly the Northeast, must be regarded as the birthplace of clinical ethics consultation, and that the Karen Ann Quinlan verdict, the Babies Doe debates, and the Presidential Commission’s “Deciding to Forego Life-Sustaining Treatment” report form the decisive landmarks. Using these three stages of development as a guide, the pragmatic implications in the respective conceptualization attempts will be elaborated and balanced at the end. Part II attempts to identify the influence of pragmatism on the idea of clinical ethics consultation. First, it clarifies the main features of an ethical theory of classical pragmatism and presents the relevant arguments of Charles Sanders Peirce, William James and John Dewey. It then looks at the first systematic concepts of clinical ethics consultation. At the end, an attempt is made to summarize the reception of pragmatic thinking in the US-American theoretical models of clinical ethics consultation and to present it as an answer to the study question.

1.2

Subject and Method of the Investigation

In order to articulate the concern of this study in a comprehensible way, it is necessary to follow a long tradition of the initial requirements of scientific epistemology, which Aristotle, above all, began in the second book of his writing “De anima” (II, 4, 412), which passed through the history of epistemology via many mediating stages and persists in the debates on the theory of science in late modernity.6 Regardless of the changes that this tradition underwent, it nevertheless carried a principle of differentiation in the philosophy of science through time: The determination of the object of investigation, i.e. the material object of observation, is, on the one hand, to be differentiated from the path of observation and, on the other hand, from the method as formal object.

1.2.1

Subject of the Investigation

Every scientific elaboration of an answer always remains in part a reconstruction of what has already been thought. This is especially true for those works that are dedicated to systematizing and classifying what has already happened. In relation to the question to be pursued here, a tendency can be worked out from the results, which will form the basis of an answer. It may be anticipated here in the form of a

6

Cf. Nussbaum and Putnam (2003), pp. 55 and 56. Polansky (2010), pp. 146–154. Maritain (1963), pp. 64–71 and 472–486. Adorno (1977), p. 599. Bourdieu (2004), pp. 45, 62, and 93.

4

1

Introduction

thesis: The ethical theory of pragmatism in the USA had a significant influence on the understanding of clinical ethics consultation in its beginnings. The Clinical Ethics Committee as an Institution for Ethics Consultation Clinical ethics counselling sees itself as a specific field of clinical ethics7 and serves the argumentative structuring of ethical dilemmas in therapeutic practice. We speak of ethical dilemmas when in an actual situation of action (1) conflicts arise between norms and rules of the same moral system, when (2) the claims of two moral systems are irreconcilably opposed to each other, or when (3) it is unclear to those acting how action should be taken in order to comply with the respective morality.8 Clinical ethics consultation is not intended to replace legal decision-making responsibility in therapeutic procedures, nor is it intended to replace day-to-day ethics-related discussions in ward operations.9 The concepts of clinical ethics consultation and the first clinical ethics committees emerged in the USA. Although it remains unclear where and when the foundation for today’s understanding of a “Hospital Ethics Committee” or a “Clinical Ethics Consultation” was first laid,10 it is possible to identify the main points in the development process of this form of consultation. In Part I, this is traced from the mid-1970s to the mid-1980s through the stages of the Karen Ann Quinlan case, the regulatory interventions in the Babies Doe cases, and the “Deciding to Forego Life-Sustaining Treatment” report. While this decade was still characterized by very heterogeneous conceptions, by the end of the 1980s we find a largely uniform, very general use of the term ethics consultation: Ethics consultation is the provision of specialized assistance – upon request – to identify, analyze and resolve moral problems that arise in hospital care.11

From this basic definition, a consensus quickly developed on the priority fields of activity. In the meantime, the idea of clinical ethics consultation has long since spread beyond the US context and has become professionalized and standardized. An international comparison12 of corresponding guidelines shows a number of features that are capable of consensus: The interdisciplinary character of the consultations and the composition of the committees, integration into clinical decision-making processes, flat hierarchical discourses, a culture of consultation

7

Cf. Bosk and Frader (1998), p. 97. Cf. Albisser Schleger et al. (2012), p. 72. 9 Cf. Schweizerische Akademie der Medizinischen Wissenschaften (2012), p. 996. 10 Although the history of similar forms of counselling and counselling bodies has been reviewed on several occasions, the origins of clinical ethics counselling remain unclear to this day. 11 This definition was agreed upon by the US Second National Conference on Ethics Consultation in Health Care in May 1988, cf. Fletcher (1990), p. 6. 12 Cf. UNESCO (2005), pp. 33–38. Gaucher et al. (2013), pp. 74–78. Schochow et al. (2016), pp. 1–7. McLean (2009), pp. 78–86. 8

1.2

Subject and Method of the Investigation

5

committed to conscience, as well as three essential fields of activity—these are briefly named.13 1. Ethical case consultation is offered in various forms as individual case consultation in difficult decision-making situations at the beginning or end of life, when resuscitation is waived, in the case of unclear expressions of will by patients and their representatives, and in all dilemma situations of direct therapeutic relevance14 as individual case consultation in different variants.15 This service is usually provided at the request of an affected party. It relates only to this case and attempts to deal with issues of direct patient care that are perceived as problematic by one or more of the parties involved by finding argumentatively viable proposals for solutions. Depending on the mode of discussion, advice (e.g. consultation models) or the outcome of the discussion (e.g. discourse models) is communicated to the parties involved.16 2. Ethical guidelines or recommendations for action serve to provide systematic orientation in case typologies that occur repeatedly.17 They often attempt to provide orientation in a concrete field of action from the self-image of the institution and within the framework of the applicable legal system. For example, the desire to refrain from blood transfusion in the case of Jehovah’s Witnesses, the handling of a request to refrain from resuscitation, or the procedure for limiting therapy at the end of life frequently call for the preparation of such internal statements.18 They offer criteria for decision support and can outline decision cascades. Such recommendations for action serve as guidance in individual case decisions and must therefore comply with legal regulations as well as scientific standards.19

13

Cf. Vorstand der Akademie für Ethik in der Medizin e.V. (2010), p. 150. Zentrale Kommission zur Wahrung ethischer Grundsätze in der Medizin und ihren Grenzgebieten (Zentrale Ethikkommission) bei der Bundesärztekammer (2006), pp. A1704 and A1705. Schweizerische Akademie der Medizinischen Wissenschaften (2012), pp. 997 and 998. Dougherty (1995), p. 409. Joint Commission International (2011), p. 192. American Academy of Pediatrics (2001), pp. 205–207. Hester and Schonfeld (2012), pp. 2–4. Slowther et al. (2004), p. A6. 14 Although there are now a large number of models for case discussion two main variants can be distinguished: Either the dilemma situation is discussed at a round table with all those involved according to a predefined process scheme under the leadership of an independent moderator, as envisaged by the Nijmwegen model, or a consultative service consisting of specially qualified and commissioned staff not directly affected by the case obtains all the information and, after internal discussion in the consilience team, gives advice to those concerned. Cf. Rushton et al. (2003), p. 94. Fox et al. (n.d.), pp. 14–16. Spike (2012), pp. 45 and 46. Banerjee and Kuschner (2007), pp. 142 and 143. Agich (2001), pp. 33–36. 15 Cf. Nilson et al. (2008), p. 359. 16 Cf. Swetz et al. (2007), p. 689. DuVal et al. (2001), p. i25. Orr and de Leon (2000), p. 29. 17 Cf. Flanigan (2006), pp. 25–28. 18 Cf. Slowther et al. (2001), p. i6. Lederman Flamm (2012), pp. 132 and 133. Smith (2008), p. 244. 19 Cf. Vorstand der Akademie für Ethik in der Medizin e.V. (2010), S. 152.

6

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Introduction

3. Ethical training addresses socially relevant or current or fundamental clinicalethical conflict areas in the hospital.20 The hospital organises its own training courses for staff, patients and, where appropriate, the general public (e.g. risks and opportunities in neonatology, living wills and health care proxy, assisted suicide). “The educational function of HECs [Hospital Ethics Committee; author’s note] is clearly their most important function”.21 For this reason, the staff of the ethics consultation require special training measures that provide them with a deeper understanding of the ethical relevance of clinical problems.22 If a distinction is made in the following between clinical ethics consultation and clinical ethics committee, it is because the term clinical ethics consultation refers to all the individual activities as well as the totality of those activities that are carried out by an ethics committee or similar organisational forms: Ethics consultation is a service provided by an individual or group to help patients, families, surrogates, healthcare providers, or other involved parties address uncertainty or conflict regarding value-laden issues that emerge in health care.23

The clinical ethics committee, by contrast, refers to a concrete institutional form of committee, to the organizational framework within which and through which ethics consultation is incorporated into the hospital. Pragmatism as a Theory of Ethical Judgment The explanations of the theoretical model of pragmatism are not intended to be a detailed presentation or an analysis of the works of outstanding authors. The influence of this theory on the history of the development of clinical ethics consultation remains the guiding principle of the analysis. Again and again, the assertion is made that different ethical theories have come into play in the practice of clinical ethics consultation. For example, the American Society for Bioethics and Humanities states in its guide “Improving Competencies in Clinical Ethics Consultation” (2009): “There are a variety of approaches to bioethics that can be helpful”.24 These included: Principalism, Casuistry, Unified theory, Virtue-based ethics, Phenomenological ethics, Pragmatism, Feminism, Narrative ethics.25 The impression is that all theories could contribute in some unspecified way to the design of clinical ethics consultation. How this is supposed to work with such different approaches remains an open question. Moreover, the American

20

Cf. Svantesson et al. (2008), pp. 404–406. Kinlaw (2008), pp. 206–208. Bayley and Cranford (1984), pp. 150–153. 21 Kuczewski (1999), p. 199. Cf. Kushner and Gibson (1984), pp. 104 and 105. 22 Cf. Glover and Nelson (2003), p. 56. Davies (2006), pp. 295 and 296. 23 Spencer et al. (2000), p. 45. 24 American Society for Bioethics and Humanities (2009), p. 15. 25 The second edition of the American Society for Bioethics and Humanities’ Core Competencies for Healthcare Ethics Consultation (2011) does add a separate chapter on “The Ethical Dimensions of HCEC as an Emerging Professional Practice” (47–50), but only lists individual “ethical obligations” and “issues” (e.g., confidentiality).

1.2

Subject and Method of the Investigation

7

Society for Bioethics and Humanities does not address at any point what theory clinical ethics consultation is based on to see itself as such. This question is now to be explored. The answer will be based on the thesis that the ethical theory of pragmatism significantly shaped the understanding of clinical ethics consultation in its early years. But what characterizes this philosophy, of which its intellectual founder Charles Sanders Peirce wrote as early as 1906: “pragmatism is going to be the dominant philosophical opinion of the twentieth century”26? Alan Malachowski begins his anthology on the emergence of pragmatism with John Dewey’s contribution “The Development of American Pragmatism”, first published in 1925. In it, Dewey, “the giant of the pragmatists”,27 looks back on the origins of the titled school of thought, which date back almost half a century,28 and sums up: The origin of pragmatism goes back to Charles Sanders Peirce (. . .). After William James had extended the scope of the method, Peirce wrote an exposition of the origin of pragmatism (. . .). The term ‘pragmatic’, contrary to the opinion of those who regard pragmatism as an exclusively American conception, was suggested to him by the study of Kant.29

In fact, Charles Sanders Peirce—“a free spirit in every sense”30—had himself admitted on several occasions that the entire foundation of pragmatism’s thought stands in the Kantian tradition, especially its “anthropology in pragmatic terms”.31 But an analysis of the writings of early pragmatism reveals neither a resulting unified philosophical direction of reception nor a systematic treatment of the sources. This led, among other things, to the fact that already in 1908 13 different currents of pragmatism could be distinguished.32 The Cambridge “The Metaphysical Club”, founded by Charles Sanders Peirce, a circle of intellectuals of different professions and interests, is considered the first place of discussion of these different drafts.33 In the first publications of Charles Sanders Peirce and William James, there are arguments with Alexander Bain’s theory of knowledge, Darwin’s theory of evolution, the philosophy of law of Nicholas St. John Green, the prognostic legal realism of Oliver Wendell Holmes, the philosophy of science of William Whewell, the methodological theories of several natural sciences (such as chemistry and meteorology), as well as the experimental psychological findings of Wilhelm Wundt, Gustav Fechner and Hermann von Helmholtz, which came from Germany.34 “The Metaphysical Club” brought the current scientific perspectives of the time into dialogue with each other. 26

Peirce (1965b), p. 346. Scheffler (1974), p. 187. 28 Cf. Fisch (1951), p. 19. 29 Dewey (2004), p. 3. 30 Smith (1963), p. 3. 31 Peirce (1965a), p. 1. Schiller (2002), p. 190. Feibleman (1969), pp. 32–46. 32 Cf. Lovejoy (1908), p. 5. 33 Cf. Wiener (1949), pp. 18–30. 34 Cf. Fisch (1964), p. 465. Murphey (1961), pp. 97–99. Menand (2001), pp. 337–375. 27

8

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Introduction

In the aforementioned article, John Dewey had thus attempted to expose the basic lines of pragmatism and for this he referred to the text “How to Make Our Ideas Clear” by Charles Sanders Peirce, which together with “The Fixation of Belief”35 documents the birth of pragmatism.36 It is the human reference to experience and its experimental access to perceptual phenomena that enables human cognition to make true statements about these phenomena in the first place. However, this also means that the phenomena can only be described when they are considered in their effect contexts. Only the effects that arise there can be perceived verifiably and described as non-random.37 The other notable first-generation author William James, at the beginning of his second lecture on pragmatism at the Lowell Institute in Boston and at Columbia University in New York (1906/1907), had summarized Peirce’s train of thought from “How to Make Our Ideas Clear” and translated it into an everyday theory of action by stating that human beliefs are to be regarded as rules for human action. In order to find out the meaning of a mental belief, one has to find out its practical effects, i.e. its ability to produce certain actions: Our conception of these effects, whether immediate or remote, is then for us the whole of our conception of the object (. . .). This is the principle of Peirce, the principle of pragmatism.38

The principle of pragmatism, then, consists in considering our conception of effects, whether direct or indirect, as the whole of our conception of the object. From these epistemological remarks, an early basic feature of the ethical theory of pragmatism can be discerned. The transfer of the orientation towards purpose and effect to the evaluation of actions is explained by Charles Sanders Peirce in his fifth lecture of the “Lectures on Pragmatism” (1903) on the topic of “The Three Kinds of Goodness”. There he comes to speak of the conditions of normative judgments. Like all normative judgments about right and wrong, moral normative judgments are also subject to the requirements of a logic of justification. This logic of justification must refer to the purpose of the action, i.e. to the willful act of giving the action a goal that does not originate in the action itself. Or, to put it another way: ethics is fundamentally the justifiable reflection on which goals of action the actor is willing to accept.39 At this point, Peirce does not answer the question how adequate goals of action can be found out. But his doctrine of analogies of logic, ethics, and aesthetics suggests that he holds the conviction that human intuitive creativity should be

35

Both texts were discussed at length at the Metaphysical Club and both appeared in 1878 in the “Illustrations of the Logic of Science” series of “The Popular Science Monthly”. Cf. Peirce (1965c), pp. 223–247. Peirce (1965d), pp. 248–271. 36 Cf. Martens (2002), p. 12, and on the early history of the use of the term, see pp. 55 and 56, endnote 30. 37 The accusation of utilitarianism that was attached to this led Peirce to switch from the concept of “pragmatism” to “pragmaticism”, cf. Peirce (1965e), pp. 276 and 277. 38 James (1975), p. 29. Cf. Smith (1978), p. 196. 39 Cf. Peirce (1973), p. 171.

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Subject and Method of the Investigation

9

regarded as the source of the setting of goals of action.40 However, in order to verify which of these should reasonably take precedence over the others, scientific methods of inquiry should serve as models for answering moral problems. Above all, their requirements of justifiability and impartiality are to be regarded as paradigms of moral judgment. If a goal of action is finally determined in a justified manner, then it is to be accepted until an error in the architecture of justification, which is to be proven, shows a different goal of action than the one that can be better understood argumentatively. The determination of moral rightness is thus committed to the general criteria of scientific truth-finding.41 Therefore, the truth of moral statements, like that of all other scientific statements, is fundamentally subject to their fallibility. As to Peirce’s form of an early ethics of pragmatism, it may be said by way of introduction: It rejects certainty as a legitimate intellectual goal; this generates a nondogmatic attitude to moral precepts and principles. It holds, secondly, that thought (. . .) is essentially goaldirected in a way that makes the refinement of the control we exercise over how we act (. . .) integral to achieving any cognitive goal such as that of truth.42

Without anticipating the connections between clinical ethics consultation and an ethical theory of pragmatism at this point already, it should be noted once again: The material object of this study is thus neither the practical philosophy of classical pragmatism per se, nor the theory of clinical ethics consultation alone, but the influence, the line of thought connecting the classical, pragmatic ideas of Charles Sanders Peirce, William James and John Dewey43 on that form of ethics consultation.

1.2.2

Method of the Investigation

Since it is not to be expected that the influence of a philosophical direction on a theory of clinical decision-making processes can be proven by means of a singular piece of evidence, i.e., a reference, a literature study, etc., a search for an answer must therefore choose the evidentiary route of a procedure familiar to secular law since the first century and to canon law at least since the thirteenth century:44 argumentative persuasion based on a field of evidence.45 The claim is that from the totality of the individual facts to be presented, it is possible to infer the factuality of the main facts. In the present case, the enterprise would consist of proving the 40

Cf. Anderson (1987), pp. 5 and 6. Bernstein (1999), pp. 191–199. Cf. Habermas (1998), p. 30. 42 Tiles (1998), p. 640. Cf. Misak (2004), pp. 190–195. Hookway (2013), pp. 26–29. 43 Cf. Pape (2008), pp. 157–179. 44 Cf. Michels (2000), p. 13. Mommsen (1955), p. 442. 45 Cf. Psiuk (1990), pp. 597–601. 41

10

1

Introduction

thesis that the ethical theory of classical pragmatism in the USA essentially shaped the understanding of clinical ethics consultation in its early phase. In order to be able to carry out this proof, the study analyses the relevant literature on clinical ethics consultation and the ethical theory of classical pragmatism. It narrows down its field according to the research question. Since in the course of Part I the context of the emergence of clinical ethics consultation can be defined as the period from the mid-1970s to the mid-1980s, the focus of the literature review is on this brief decade. It is only in this phase that corresponding journals and book series began to establish themselves, whereas previously the authors published in their respective legal, medical, theological, sociological or philosophical journals on ethics consultation. The intention is to provide an overview of the multifaceted treatment of topics within this decade. Only at significant points can individual publications be discussed in more detail. In addition, Part I attempts to show that concrete medical treatment decisions in the USA were the catalyst for the introduction of clinical ethics consultation. Although the instruments of ethics consultation have since been adopted in other fields of health and social care, such as care for the disabled, inpatient and outpatient care for the elderly, and psychiatric care, their origins are in the hospital system. Now, it has already been pointed out above that clinical ethics consultation and classical pragmatism have US-American roots.46 In order to give appropriate space to the original sources in both areas, the English-language texts are inserted by way of citation at prominent points of argumentation. The following Part I is devoted to the three most important stages in the history of the development of clinical ethics consultation. The medical lawyer Susan M. Wolf writes retrospectively: In the decade since the Quinlan decision, ethics committees have caught on. The President’s Commission endorsed the concept in 1983, and the federal Child Abuse Amendments of 1984 and Baby Doe regulations now recommend using Infant Care Review Committees.47

Within each of the three stages, the pragmatic implications of the concepts of clinical ethics consultation will be highlighted and a balance will be drawn at the end.

References Adorno, T. W. (1977). Anmerkungen zum philosophischen Denken. In T. W. Adorno (Ed.), Kulturkritik und Gesellschaft II. Eingriffe. Stichworte. Anhang. Gesammelte Schriften (pp. 509–607). Agich, G. J. (2001). The question of method in ethics consultation. American Journal of Bioethics, 1(4), 31–41. Albisser Schleger, H., Mertz, M., Meyer-Zehnder, B., et al. (2012). Klinische Ethik – METAP. Leitlinie für Entscheidungen am Krankenbett.

46 47

Cf. Pratt (2002), p. xi. Wolf (1986), p. 12. Cf. Annas (1984), pp. 54–58. Jaffe (1989), pp. 393 and 394.

References

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American Academy of Pediatrics. (2001). Institutional ethics committees. Pediatrics, 107(1), 205–209. American Society for Bioethics and Humanities. (2009). Improving competencies in clinical ethics consultation. An education guide. American Society for Bioethics and Humanities. (2011). Core Competencies for Healthcare Ethics Consultation. Anderson, D. R. (1987) Creativity and the philosophy of C. S. Peirce. Annas, G. J. (1984). Legal aspects of ethics committees. In R. E. Cranford & E. A. Doudera (Eds.), Institutional ethics committees and health care decision making (pp. 51–59). Anonymous. (2016). Ethics consultation in the context of psychological supervision: A case study. Clinical Ethics, 11(2/3), 97–104. Banerjee, D., & Kuschner, W. G. (2007). Principles and procedures of medical ethics case consultation. British Journal of Hospital Medicine, 68, 140–144. Bayley, C., & Cranford, R. E. (1984). Techniques for committee self-education and institution-wide education. In R. E. Cranford & E. A. Doudera (Eds.), Institutional ethics committees and health care decision making (pp. 149–156). Bernstein, R. J. (1999). Praxis and action. Contemporary philosophies of human activity. Bosk, C. L., & Frader, J. (1998). Institutional ethics committees: Sociological oxymoron, empirical black box. In R. G. DeVries & J. Subedi (Eds.), Bioethics and society: Constructing the ethical enterprise (pp. 94–116). Bourdieu, P. (2004). Science of science and reflexivity. Davies, W. (2006). Failure to thrive or refusal to adapt? Missing links in the evolution from ethics committee to ethics program. HEC Forum, 18(4), 291–297. Dewey, J. (2004). The development of American pragmatism. In A. Malachowski (Ed.), Pragmatism. The historical development of pragmatism (Vol. I, pp. 3–16). Dougherty, C. J. (1995). Clinical ethics. III. Institutional ethics committees. In W. T. Reich (Ed.), Encyclopedia of bioethics (Vol. I, pp. 409–412). DuVal, G., Sartorius, L., Clarridge, B., et al. (2001). What triggers requests for ethics consultations? Journal of Medical Ethics, 27(Suppl I), i24–i29. Feibleman, J. K. (1969). An introduction to the philosophy of Charles S. Peirce. Interpreted as a system. Fisch, M. H. (1951). The classic period in American philosophy. In M. H. Fisch (Ed.), Classic American philosophers (pp. 1–9). Fisch, M. H. (1964). A chronicle of pragmaticism, 1865-1879. The Monist, 48(3), 441–466. Flanigan, R. (2006). Ethics committee handbook – For new members orientation. Fletcher, J. C. (1990). Ethikberatung. Fox, E., Berkowitz, K. A., Chanko, B. L., et al. (n.d.). Integrated ethics. Improving ethics quality in health care. Ethics consultation. Responding to ethics questions in health care (pp. 14–16). www.ethics.va.gov/ECprimer.pdf Fox, R. C. (1990). The evolution of American bioethics: A sociological perspective. In G. Weisz (Ed.), Social science perspectives on medical ethics (pp. 201–217). Fröhlich, G. (2014). Theorie der Ethischen Beratung im klinischen Kontext. Philosophische Grundlegung eines anwendungsbezogenen Modells zur Falldiskussion und Lösung wertbasierter Konflikte. Gaucher, N., Lantos, J., & Payot, A. (2013). How do national guidelines frame clinical ethics practice? A comparative analysis of guidelines from the US, the UK, Canada and France. Social Science and Medicine, 86, 74–78. Glaser, J. W. (1989). Hospital ethics committees. One of many centers of responsibility. Theoretical Medicine, 10(4), 275–288. Glover, J. J., & Nelson, W. (2003). Innovative educational programs. A necessary first step toward improving quality in ethics consultation. In M. P. Aulisio, R. M. Arnold, & S. J. Younger (Eds.), Ethics consultation. From theory to practice (pp. 53–69).

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Habermas, J. (1998). Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats. Hester, D. M., & Schonfeld, T. (2012). Introduction to healthcare ethics committees. In D. M. Hester & T. Schonfeld (Eds.), Guidance for healthcare ethics committees (pp. 1–8). Hookway, C. (2013). “The Principle of Peirce” and the origins of pragmatism. In A. Malachowski (Ed.), The Cambridge companion to pragmatism (pp. 17–35). Jaffe, G. A. (1989). Institutional ethics committees. Legitimate and impartial review of health care decisions. The Journal of Legal Medicine, 10(3), 393–431. James, W. (1975). Pragmatism. A new name for some old ways of thinking. In F. H. Burkhardt, F. Bowers, & I. K. Skrupskelis (Eds.), The works of William James. Joint Commission International. (2011). Joint Commission International Standards for hospitals (4th ed.). Kettner, M., & May, A. (2001). Ethik-Komitees in der Klinik. Zur Moral einer neuen Institution. In J. Rüsen (Ed.), Jahrbuch 2000/2001 Kulturwissenschaftliches Institut im Wissenschaftszentrum NRW (pp. 487–499). Kinlaw, K. (2008). The hospital ethics committee as educator. In D. M. Hester (Ed.), Ethics by committee. A textbook on consultation, organization, and education for hospital ethical committees (pp. 203–214). Kohlen, H. (2009). Conflicts of care. Hospital ethics committees in the USA and Germany. Kuczewski, M. G. (1999). When your healthcare ethics committee “Fails to Thrive”. HEC Forum, 11(3), 197–207. Kushner, T., & Gibson, J. M. (1984). Institutional ethics committees speak for themselves. In R. E. Cranford & E. A. Doudera (Eds.), Institutional ethics committees and health care decision making (pp. 96–105). Lederman Flamm, A. (2012). Developing effective ethics policy. In D. M. Hester & T. Schonfeld (Eds.), Guidance for healthcare ethics committees (pp. 130–138). Light, A. (2002). A modest proposal: Methodological pragmatism for bioethics. In J. Keulartz, M. Korthals, M. Schermer, et al. (Eds.), Pragmatist ethics for a technological culture (pp. 79–97). Lovejoy, A. O. (1908). The thirteen pragmatisms I. The Journal of Philosophy, Psychology and Scientific Methods, 5(1), 5–12. Maritain, J. (1963). Éléments de philosophie. Introduction générale á la philosophie (32nd ed.). Martens, E. (2002). Einleitung. In Philosophie des Pragmatismus. Ausgewählte Texte von Charles Sanders Peirce, William James, Ferdinand Canning Scott Schiller, John Dewey (pp. 3–59). McLean, S. A. M. (2009). Clinical ethics consultation in the United Kingdom. Diametros, 22, 76–89. Menand, L. (2001). The metaphysical club. A story of ideas in America. Michels, K. (2000). Der Indizienbeweis im Übergang vom Inquisitionsprozeß zum reformierten Strafverfahren. Misak, C. (2004). Naturalization of Truth: Pragmatism and Deflationism. In A. Fuhrmann & E. J. Olsson (Eds.), Pragmatisch denken (pp. 189–216). Molewijk, B., Slowither, A., & Aulisio, M. P. (2011). The practical importance of theory in clinical ethics support services. Bioethics, 25(7), ii–iii. Mommsen, T. (1955). Römisches Strafrecht. Murphey, M. G. (1961). The development of Peirce’s philosophy. Nilson, E. G., Acres, C. A., Fins, J. J., et al. (2008). Clinical ethics and the quality initiative: A pilot study for the empirical evaluation of ethics case consultation. American Journal of Medical Quality, 23(5), 356–364. Nussbaum, M. C., & Putnam, H. (2003). Changing Aristotle’s mind. In M. C. Nussbaum & A. Rorty Oksenberg (Eds.), Essays on Aristotle’s De Anima [1992] (pp. 27–56). Orr, R. D., & de Leon, D. M. (2000). The role of the clinical ethicist in conflict resolution. The Journal of Clinical Ethics, 11, 21–30.

References

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Pape, H. (2008). Charles Sanders Peirce (1839–1914), William James (1842–1910) und John Dewey (1859–1952). In O. Höffe (Ed.), Klassiker der Philosophie, Bd. II. Von Immanuel Kant bis John Rawls (pp. 157–179). Peirce, C. S. (1965a). A definition of pragmatic and pragmatism. In C. Hartsthorne & P. Weiss (Eds.), Collected papers of Charles Sanders Peirce (Vol. V, pp. 1–9). Peirce, C. S. (1965b). Answers to the questions concerning my belief in god. In C. Hartsthorne & P. Weiss (Eds.), Collected papers of Charles Sanders Peirce (Vol. VI, pp. 340–355). Peirce, C. S. (1965c). How to make our ideas clear. In C. Hartsthorne & P. Weiss (Eds.), Collected papers of Charles Sanders Peirce (Vol. V, pp. 223–247). Peirce, C. S. (1965d). The fixation of belief. In C. Hartsthorne & P. Weiss (Eds.), Collected papers of Charles Sanders Peirce (Vol. V, pp. 248–271). Peirce, C. S. (1965e). What pragmatism is. In C. Hartsthorne & P. Weiss (Eds.), Collected papers of Charles Sanders Peirce (Vol. V, pp. 272–292). Peirce, C. S. (1973). Lectures on pragmatism. Polansky, R. M. (2010). Aristotle’s De Anima. Pratt, S. L. (2002). Native pragmatism. Rethinking the roots of American philosophy. Psiuk, E. (1990). Moralische Gewissheit allein aus Indizien. In K. Lüdicke (Ed.), Iustus Iudex. Festgabe für Paul Wesemann zum 75. Geburtstag von seinen Freunden und Schülern (pp. 597–612). Rushton, C., Youngner, S. J., & Skeel, J. (2003). Models for ethics consultation. Individual, team, or committee? In M. P. Aulisio, R. M. Arnold, & S. J. Younger (Eds.), Ethics consultation. From theory to practice (pp. 88–95). Scheffler, I. (1974). Four pragmatists. A critical introduction to Peirce, James, Mead, and Dewey. Schiller, F. C. S. (2002). Humanismus. In Philosophie des Pragmatismus. Ausgewählte Texte von Charles Sanders Peirce, William James, Ferdinand Canning Scott Schiller, John Dewey (pp. 188–204). Schochow, M., Rubeis, G., & Steger, F. (2016). The application of standards and recommendations to clinical ethics consultation in practice: An evaluation at German hospitals. Science and Engineering Ethics, 1–7. https://doi.org/10.1007/s11948-016-9805-y Schweizerische Akademie der Medizinischen Wissenschaften, Ethische Unterstützung in der Medizin. (2012). Schweizerische Ärztezeitung, 93(26), S996–S1004. Slowther, A.-M., Bunch, C., Woolnough, B., et al. (2001). Clinical ethics support services in the UK: An investigation of the current provision of ethics support to health professionals in the UK. Journal of Medical Ethics, 27(Suppl I), i2–i8. Slowther, A.-M. Johnston, C., Goodall, J., et al. (2004). A practical guide for clinical ethics support. Smith, J. E. (1963). The spirit of American philosophy. Smith, J. E. (1978). Purpose and thought. The meaning of pragmatism. Smith, M. L. (2008). Medical inappropriateness review: Appropriately performed by a Medical Committee. Health Matrix, 18(2), 237–244. Spencer, E. A., Mills, A. E., Rorty, M. V., et al. (2000). Organization ethics in health care. Spike, J. (2012). Ethics consultation process. In D. M. Hester & T. Schonfeld (Eds.), Guidance for healthcare ethics committees (pp. 41–47). Svantesson, M., Löfmark, R., Thorsén, H., et al. (2008). Learning a way through ethical problems: Swedish nurses’ and doctors’ experiences from one model of ethics rounds. Journal of Medical Ethics, 34, 399–406. Swetz, K. M., Crowley, M. E., Hook, C., et al. (2007). Report of 255 clinical ethics consultations and review of the literature. Mayo Clinic Proceedings, 82(6), 686–691. Tiles, J. E. (1998). Pragmatism in ethics. In E. Craig (Ed.), Routledge encyclopedia of philosophy (Vol. VII, pp. 640–644). UNESCO. (2005). Establishing bioethics committees. Guide no. 1. Geneva.

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Vollmann, J. (2010). Clinical ethics committees and ethics consultation in psychiatry. In H. Helmchen & N. Sartorius (Eds.), Ethics in psychiatry. European contributions (pp. 109–125). Vorstand der Akademie für Ethik in der Medizin e.V., Standards für Ethikberatung in Einrichtungen des Gesundheitswesens. (2010). Ethik in der Medizin, 22(2), 149–153. Wiener, P. P. (1949). Evolution and the founders of pragmatism. Wolf, S. M. (1986). Ethics committees: In the courts. Hastings Center Report, 16(3), 12–15. Zentrale Kommission zur Wahrung ethischer Grundsätze in der Medizin und ihren Grenzgebieten (Zentrale Ethikkommission) bei der Bundesärztekammer, Ethikberatung in der klinischen Medizin. (2006). Deutsches Ärzteblatt, 103(24), A1703–A1707.

Part I

Birthplace USA: Clinical Ethics Consultation and Pragmatism

Chapter 2

Three Stages in the Development of Clinical Ethics Consultation

Albert R. Jonsen and Robert M. Veatch anchor the beginning of US bioethics in the years around 1970. Within a short time, pioneering monographs—such as Van Rensselaer Potter’s “Bioethics: Bridge to the Future” (1971) or Paul Ramsey’s “Patient as Person” (1970)—and collections of essays1 came onto the market, academic institutes—such as the Kennedy Institute of Ethics at Georgetown University (1971), the Hastings Center (1969)2 or the first Department of Humanities at a medical school, the Penn State College of Medicine (1967)—were founded, specialized journals—such as the Hastings Center Report (1971) and, somewhat later, the journals “Law, Medicine and Ethics” or “Journal of Philosophy and Medicine” (both 1975)—started their first editions, and legislation—for example, with the Patient’s Bill of Rights (1973)3—created new challenges for therapeutic practice. Medical Ethics and Clinical Ethics Consultation Many of these efforts to make the relationship between medicine and ethics theoretically comprehensible were initially not suitable to support medical-therapeutic practice, as Elliot B. Tapper notes: “The field of biomedical ethics often had little to do with day-to-day medicine.”4 This distance from practice was primarily related to the following: The professional bioethicists came principally from two disciplines with a long tradition of intellectual analysis of moral problems, theology and philosophy. (. . .) Despite the

1

Somewhat later, cf. Hunt and Arras (1977). Beauchamp and LeRoy (1978). In his article on the founding years of the Hastings Center and its leaders, Eric J. Cassell writes in summary: “We were mostly pragmatists.” Cassell (2013), p. 20. 3 Paralleling the emergence of health law as a discipline in US law, see Annas (1995), pp. 88–91. Capron and Michel (1993), pp. 30–33. 4 Cf. Tapper (2013), p. 419. Clouser (1993), p. 10. 2

© Springer-Verlag GmbH Germany, part of Springer Nature 2023 B. Bleyer, Pragmatic Judgments in Direct Patient Care, https://doi.org/10.1007/978-3-662-66819-1_2

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persistence of disciplinary origins, a common bioethical vernacular emerged and a new breed of scholars, fluent in that vernacular, became the full-time bioethicists.5

The early stages of the development of the field of medical ethics and clinical ethics consultation bear witness to that conflict which the British writer Charles P. Snow describes as one of science and culture. In his widely received 1959 “Rede Lecture” at Cambridge University, entitled “The Two Cultures and the Scientific Revolution”,6 he points to a dichotomy of the academic: Two cultures of thought, he argues, confront each other in the modern scientific world almost without communication, the natural sciences and the humanities. Their ways of thinking and their languages have diverged to such an extent that communication is no longer possible. “They have a curious distorted image of each other. Their attitudes are so different that, even on the level of emotion, they can’t find much common ground.”7 Paradoxically, in the midst of this drifting apart, the discipline of medical ethics and clinical ethics consultation are coming into their own.8 With their knowledge acquired from the classical fields of the university humanities, the pioneers of medical ethics entered a field of medicine that had to cope with a “period of explosive growth”9 in the years after the Second World War until the mid-1970s: From 1946 onwards, the success of tuberculosis treatment by streptomycin was seen; in 1947, methotrexate—as a forerunner of chemotherapy—began to be used in the treatment of leukaemia; in 1949, polio vaccinations became possible; in 1952, the first open-heart surgery took place; in 1954, a kidney was successfully transplanted for the first time; in 1956, the defibrillator came into use; in 1962, haemodialysis followed; in 1967, the first heart transplant.10 The increasingly technologized system of clinical patient care also took another turn, beginning at the university level. Mark Siegler calls this the “Oslerian revolution”. At the beginning of the twentieth century, the Canadian physician William Osler had promoted a shift in emphasis in human medical training. The new forms of “bedside teaching”11 emphasized the individual “case”, the patient and the therapeutic treatment process related to him.12 As the technologization of medicine brought completely new ethical questions (termination of artificial respiration, distribution of transplantable organs, determination of the end of life, etc.), the individual patient orientation (strengthening of patients’ rights, changes in medical education, etc.) called on the medical profession to take a stand itself and not to leave it to the theological and philosophical ethicists,

5

Jonsen (2009), p. 483. Cf. Light and McGee (1998), p. 1. Fox and Swazey (1984), pp. 356 and 357. 6 “One of the 100 most important books published since World War II”. Reich (2013), p. 86. 7 Snow (1959), pp. 4 and 5. 8 Cf. DeVries (2002), pp. 156–158. Fox (1990), p. 213. 9 Cf. McGehee and Bordley (1976), p. 383. 10 Cf. Jonsen (1998), p. 12. Grodin (1995), pp. 3–7. 11 Siegler (1978), p. 951. 12 Cf. Silverman (2012), pp. 59 and 60. Knight (1973), p. 93.

2

Three Stages in the Development of Clinical Ethics Consultation

19

philosophers of law and religious scholars. Robert Baker, in his history of American medical ethics, points out that in the early 1970s the question arose as to which professional group could claim genuine medical ethical authority: The resulting vacuum of authoritative moral leadership created a need for action in the public sphere, as well as in critical care units, hospitals, and research centers. To meet this need, to fill that space left empty by organized medicine, as standard histories of bioethics recount in great detail, a coalition of bureaucrats, foundations, concerned humanistic physicians, and researchers joined with philosophers, lawyers, ex-theologians, and social scientists to create and valorize an alternative voice of moral authority that came to be known as ‘bioethics’.13

As will be seen in Part I, it was in this “vacuum of authoritative moral leadership” that committee-based procedures for precarious therapeutic decision-making emerged. Moral authority in applied clinical ethics became increasingly tied to structures and processes, not to individuals or professions. The two most famous, though very different, attempts in the 1960s illustrate this shift. On the one hand, the “Seattle Artificial Kidney Center’s Admission and Policy Committee”, founded in 196214 to approve or reject treatment for dialysis patients and, on the other hand, the Ad Hoc Committee of Harvard Medical School in 1968 “to examine the definition of brain death”15 reinforced the tendency to discuss new questions of medical ethics in specially convened committees.16 On the Way to Clinical Ethics Committees Anyone who wants to draw a historical reconstruction of the early phase of the subject of medical ethics on a few pages must refrain from presenting details. The same applies to a description of the history of the development of clinical committee forms. Summarized compactly:17 The history of committees to justify or prohibit sterilization in psychiatric institutions has existed in the USA since the 1920s.18 Somewhat later, committees were formed to evaluate neurosurgical interventions or to evaluate cases of abortion when the mother’s life was in danger. Catholic homes established “medico-morality” committees after the end of World War II.19 The Catholic Hospital Association had emphasized adherence to moral-theological norms with its 1949 publication Ethical and Religious Directives. Occupying a special position within these forms of committees are the Institutional Review Boards, which were federally mandated under the “Institutional Guide to DHEW Policy of Protection of Human Subjects” of 1971 (rewritten in 1974) and then under the “National Research Act of 1974”. Although the review boards were entrusted 13

Baker (2013), pp. 316 and 317. Cf. MacIntyre (1977), p. 211. Walters (1989), pp. 105–111. Cf. Sanders and Dukeminier (1977), pp. 608–610. 15 Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death (2006), p. 339. 16 Cf. Rothman (2003), pp. 168–189. 17 Cf. Hosford (1986), pp. 65–76. Frewer (2012), pp. 9–13. Kohlen (2009), pp. 53–68. 18 Cf. Blacker (1935), pp. 1353 and 1354. 19 These existed in part until the 1980s, cf. Bader (1982), pp. 82 and 83. Lisson (1982), p. 36. Kosnik (1974), pp. 40–42. 14

20

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with the task of monitoring the ethical and legal justifiability of medical research projects, they were initially referred to as “ethics committees”.20 Overall, it should be noted that until the mid-1970s a wide variety of nomenclatures existed for the designation of the organizational form of clinical ethics consultation (bioethics committee, institutional ethics committee, medical ethics committee), but the same terms were also used for other ethical bodies. Ultimately, the conceptual vagueness prevented the reconstruction of an exact point in time at which the history of clinical ethics committees began: “Origins are difficult to trace with precision”.21 A milestone in the current form of clinical ethics consultation is certainly the multi-professional Optimum Care Committee (as a subgroup of the previously existing Critical Care Committee) of Boston’s Massachusetts General Hospital, which was convened in 1974. Its main purpose was to organize what would later be called the “Ethics Consultation Service.”22 Thomas A. Brennan, who examined the documentation of 73 ethics consultations at Massachusetts General Hospital between 1974 and 1986, provided some insight into how they functioned: The Optimum Care Committee had consisted of at least four members covering the fields of medicine (psychiatry, internal medicine, surgery), nursing, and law. Only one representative of the medical profession had the right to call the chairman of the committee in case of need for advice. The chairman passed the request on to the other members and, as a rule, a physician member interviewed the inquirer. Where appropriate, the patient’s relatives were also contacted in addition to the patient. The committee nurse gathered information about the patient’s status, asked for the attitudes of family members, and the opinions of the attending nurses. Then, the committee members discussed the case among themselves, determined an outcome, and communicated it to the affected persons. One member filed the advisory outcome in the patient’s medical record.23 How the requesting physician handled this advice remained their responsibility because, the “committee’s role is entirely advisory, and the responsible physician is free to accept or reject its recommendations.”24 The Massachusetts General Hospital had thus described the basic characteristics of ethical individual case consultation.

20

Cf. May (1975), pp. 24–27. Fost and Cranford (1985), p. 2688. Bosk and Frader (1998), p. 96. 22 Cf. Critical Care Committee (1976), pp. 362 and 363. 23 Cf. Brennan (1988), p. 803. 24 Cassem (1979), p. 86. 21

2.1

Karen Ann Quinlan: Yes to Ethical Decision Making in the Field (1975/1976)

2.1

21

Karen Ann Quinlan: Yes to Ethical Decision Making in the Field (1975/1976)

The following three stages are intended to illustrate the pragmatic implications of the concepts of ethics consultation in the early years. The selection does not mean that the development of clinical ethics committees in the USA can only be depicted in this way,25 but rather that the influence of the idea of pragmatic decision-making on the initial phase of hospital ethics committees can be shown by way of example using the three most important design stages.26

2.1.1

The Prehistory

The emergence of the concept of clinical ethics consultation is closely linked to the name of Karen Ann Quinlan.27 Her tragic fate28 has shaped many publications on the history of ethics consultation to this day. A hospital ethics committee was discussed in detail for the first time in a US federal court ruling. Karen Ann Quinlan, a 21-year-old college student, was brought to the emergency room of Newton Memorial Hospital (Newton, New Jersey) in an unconscious state on April 15, 1975, after ingesting Valium, Librium, barbiturates, and gin at a party. Only a few days earlier, she had moved out of her adoptive parents’ apartment in New Jersey and had moved into an apartment nearby with two young men. On that April 15, she was invited to a birthday party. At a late hour, friends brought her home and put her to bed. When they came into the room again after about a quarter of an hour, no breathing was perceptible. One of the friends began to resuscitate the young woman, and the other called an ambulance. At Newton Memorial Hospital, she was taken to the intensive care unit. After her condition stabilized, the attending physicians decided to place a transnasal feeding tube to provide nutrition and hydration and to continue the mechanical ventilator. On April 24, 1975, Karen Ann Quinlan was transferred to Saint Clare’s Hospital (Denville, New Jersey). Robert J. Morse, a neurologist, administered the treatment. It was he who first described the patient’s

25 Moreover, the most authoritative case law in the time frame set here occurred in the cases of Bartling before the California Appellate Court in 1984, Torres before the Supreme Court of Minnesota in 1984, Barber before the California Court of Appeal in 1981, Saikewicz before the Supreme Judicial Court of Massachusetts in 1977, or Tarasoff before the Supreme Court of California in 1976. They also contributed to the popularization of the tools of ethics consultation in the hospital setting. Mark P. Aulisio adds the Cruzan case from 1990, see Aulisio (2016), pp. 549–550. 26 Cf. Pope (2009), pp. 262 and 263. McCormick (1984), p. 150. 27 Cf. Hosford (1986), p. 13. 28 The Quinlan family produced two publications themselves, Quinlan et al. (1977). Quinlan (2005). Cf. also the novel by: Coupland (1998).

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Three Stages in the Development of Clinical Ethics Consultation

condition as a “chronic persistent vegetative state” and who, on the basis of an EEG diagnosis with weak spikes, argued against a brain death diagnosis. The lawyer Paul Armstrong, in consultation with the father Joseph Quinlan, then filed a request for a court order to prevent further inpatient treatment by “extraordinary means” and against the patient’s will.29 This request was denied by the court. After the court declared the patient incapable of consent and legal capacity, on September 15, Attorney Daniel Coburn was appointed as Karen Ann Quinlan’s guardian ad litem for the duration of the trial. During these months, as Karen Ann Quinlan’s body became visibly marked by the effects of paralysis, she lost an enormous amount of weight, so that by September she weighed just over 30 kg.30 Her father Joseph, meanwhile, sought pastoral and theological support from Catholic priest Thomas A. Trapasso.31 Finally, through his attorney Armstrong, barely 30 years old, he petitioned the Superior Court of New Jersey with jurisdiction to appoint him as guardian with the intent: “authorizing the discontinuance of all extraordinary means of sustaining the vital processes.”32 After the legal representative of the hospital, who—in agreement with the appointed “Guardian ad Litem”, the responsible prosecutor and the Attorney General—expressed criminal concerns about the discontinuation of life-sustaining measures and communicated this internally in the hospital, the young attending physician Robert J. Morse decided to continue the life-sustaining therapy. The following months showed that an out-of-court settlement between the concerns of the father Joseph and the Quinlan family on the one hand and those of the treating physician, the guardian and the prosecution on the other could not be reached. Finally, at the end of October, the trial, scheduled for 5 days, took place in the Superior Court of New Jersey. On November 10, 1975, Judge Robert Muir of the New Jersey Superior Court in Morristown ruled that Joseph Quinlan would not be appointed as his daughter’s guardian and that life-sustaining therapy should continue.33

2.1.2

The Judgment of the Supreme Court of New Jersey

The legal battle continued nonetheless. Joseph Quinlan and Paul Armstrong took the case to the Supreme Court of the State of New Jersey. On 17 November, the application for appeal was made, among other things, with the argument that in

29

The litigation from September 1975 to March 1976 is documented in detail in, Robinson (1975). Robinson (1976). For an overview of US jurisprudence at the time on termination of artificial feeding, see Paris and Reardon (1985), pp. 2243–2245. 30 Cf. Devettere (2016), p. 197. 31 Cf. Stonecipher (2006), pp. 593 and 594. 32 Robinson (1975), p. 13. 33 Cf. McColl (1976), p. 3. Brandon and Casebeer (1976), p. 10. Robinson (1975), pp. 563–568.

2.1

Karen Ann Quinlan: Yes to Ethical Decision Making in the Field (1975/1976)

23

the present case the constitutionally protected “right of privacy” had not yet been duly appreciated by the courts. The federal court scheduled trial to begin January 26. Following oral and written submissions by the plaintiff, the New Jersey Attorney General, the treating physicians, the guardian, the prosecutor, Saint Clare Hospital, and the Bishop of Paterson, the verdict34 in this intensely publicized trial was expected in late March 1976. Looking back, philosopher Gregory E. Pence reminds us of the importance of the federal court decision: “Remember that in early 1976, no federal or state court had decided anything about death and dying that clarified the rights of patients or their families.”35 That’s why medical jurist George J. Annas calls the ruling “one of the most remarkable statements in American jurisprudence.”36 The court, referring to the constitutional issues, addressed six issues: (1) the free exercise of religion given the strong Catholic character of the Quinlan family as well as the same confessional character of the Saint Clare Clinic; (2) the charge of cruel and unusual treatment; (3) the right to respect for privacy; (4) the medical circumstances; (5) the alleged criminal liability; (6) the care of the person. Since not all points here play an equal role, the focus will be on two topics that are of particular importance in answering the question of the emergence of clinical ethics committees. These are, on the one hand, the plaintiff’s Catholic conviction and the related distinction to justify the use of extraordinary medical measures and, on the other hand, the assignment of duties of a Clinical Ethics Committee in the case of Karen Ann Quinlan. The Supreme Court had already confirmed the righteous and deeply religious character of Joseph Quinlan.37 For him, the medical-ethical evaluation from a Catholic point of view had an enormously important meaning. This was proven, among other things, by the fact that several times before important decisions he had sought a discussion with his Roman Catholic parish priest Trapasso and subsequently with the clinical chaplain of Saint Clare’s Hospital on the moral-theological evaluation of the therapy. This particular set of facts led the court to take the unusual step of taking special notice of the Catholic Church’s argument. In the role of “amicus curiae”, Bishop Lawrence B. Casey represented the Catholic bishops of New Jersey. He was asked to evaluate life-sustaining medical measures from the perspective of Catholic moral theology.38 After the Vatican authorities refused to comment when asked,39 the attorney for the New Jersey Catholic Conference submitted the local bishop’s letter in January 1976. In it, Pope Pius XII’s message to the Congress of Anesthesiologists

34

Cf. Robinson (1976), pp. 287–319. Pence (2004), p. 34. 36 Annas (1979a), p. 54. 37 Explicitly in the judgment of the Superior Court, see Robinson (1975), p. 568. 38 Cf. Robinson (1976), pp. 197–207. Jonsen (1997), p. 9. 39 Cf. Quinlan et al. (1977), pp. 225 and 226. 35

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of November 24, 1957, forms the central magisterial reference point.40 In the address, Pius XII had answered the question whether the anaesthetist had the right, or even the obligation in all cases of deep unconsciousness of a patient, to order artificial respiration, even if this was done against the will of the relatives.41 The Pope was of the opinion that, although there was no obligation to do so and even if the doctor had a fundamental right to use this therapy, it must always be borne in mind that he needed the patient’s consent to do so. The duties of the relatives were bound to the will of the patient who was incapable of giving consent, i.e. it was their task to see to it that those medical measures were carried out which represented an acceptable burden for the patient.42 Bishop Casey takes up the distinction between “ordinary” and “extraordinary means”. Ordinary means are those medical measures and medications which offer a reasonable hope of benefit to the patient and can be applied without undue pain, expense or inconvenience. Extraordinary means are those medical measures and medications which cannot be applied without undue pain, expense or inconvenience, or which, if applied, do not offer a reasonable hope of benefit. Bishop Casey concludes that artificial respiration and life-sustaining measures in this particular case are “extraordinary” and therefore there is no moral duty to continue them. The summary of the moral theological opinion of Bishop Lawrence B. Casey is: “the decision of Joseph and Julia Quinlan to request the discontinuance of this treatment is, according to the teachings of the Catholic Church, a morally correct decision.”43 Although the Supreme Court’s judgment takes detailed note of this statement and appreciates its main features, it casts doubt on the clear assignability of ordinary and extraordinary means in the present case.44 It was just not clearly determinable in which category artificial respiration was to be placed. Nevertheless, the conceptual distinction makes sense. However, the doctor seeking advice in his freedom of

40

Cf. Pius XII (1957), pp. 1027–1033. The entire text of Pope Pius XII’s address to the International Congress of Anaesthesiologists in Rome on 24 November 1957 was appended to the revision proposal, cf. Robinson (1976), pp. 31–40. 42 Without indicating his source, Pius XII refers to the Commentary on St. Thomas (On the Question of the Permissibility of Mutilation) by the Dominican Domingo Báñez, who introduced the concept of “remedia ordinaria et extraordinaria” into the Catholic tradition. Cf. Panicola (2004), p. 12. 43 Robinson (1976), p. 203. Explicitly, the Catholic position on the proportionality of means distinction is also discussed in the 1983 report of the President’s Commission to be discussed below, President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983a), pp. 82–90, esp. 82 and 83, footnote 114 as well as 88 and 89, footnote 132. Presumably it also appears there because the Congregation for the Doctrine of the Faith’s statement on euthanasia, “Iura et bona” of May 5, 1980, affirmed this doctrine. Since then, the controversy over the therapeutic applicability of this distinction has not ended, cf. Bayer (1986), pp. 90–92. Wildes (1996), pp. 511 and 512. McCartney (1980), pp. 219–222. Sullivan (2007), pp. 391–393. Calipari (2004), pp. 393 and 394. Bradley (2009), p. 374. 44 Cf. Robinson (1976), p. 310. On the fundamental therapeutic problem of clear determinability of distinction, Gillon (1986), p. 261. McColl (1976), p. 6. Savage (1980), p. 88. 41

2.1

Karen Ann Quinlan: Yes to Ethical Decision Making in the Field (1975/1976)

25

therapy45 must in principle be offered more in the way of ethical arguments than just a superordinate terminology: Nevertheless, there must be a way to free physicians, in the pursuit of their healing vocation, from possible contamination by self-interest or self-protection concerns which would inhibit their independent medical judgments for the well-being of their dying patients.46

The court is considering giving physicians the opportunity to go beyond their own subjective value patterns and arrive at a more neutral assessment of the upcoming therapy decision. In order to implement this, the court is now proposing the establishment of a clinical ethics committee, explicitly referring to an article by pediatrician Karen Teel, which appeared in the Baylor Law Review on the topic “The Physician’s Dilemma: A Doctor’s View: What Law Should Be”47 had appeared. Karen Teel argued that physicians are sometimes “ill-equipped” to make extreme medical decisions when deciding to limit the treatment of a newborn with Down syndrome at Johns Hopkins Hospital in Baltimore (Maryland).48 Tragically, “there is little or no dialogue in this whole process.”49 It would therefore be more appropriate to implement a regular forum that allows a dialogue about facts and views in individual situations, rather than letting the treating physicians decide alone. With regard to the criminal relevance, Karen Teel had pleaded: “to allow the responsibility of these judgments to be shared.”50 It is further said that in the US hospital scene it was possible to observe that at the beginning of the 1970s some interdisciplinary ethics committees (initially consisting of doctors, social workers, lawyers and theologians) were set up. Their task was to serve as “safeguards for patients and their medical caretakers”,51 to re-examine the individual circumstances of ethical dilemmas and to act as an advisory body. The concept of a Clinical Ethics Committee “would be (. . .) the most promising direction for further study at this point”.52 In its judgment, the Supreme Court is convinced by this proposal and concedes: “The most appealing factor in the technique suggested by Dr. Teel seems to us to be the diffusion of professional responsibility for decision”.53 According to the court’s opinion, a clinical ethics committee should fulfil the following tasks: (1) An ethics committee, as a system integrated into the hospital, should call for a structured dialogue on difficult decision-making situations. It has the potential to protect the 45

The American Medical Association, in a statement on euthanasia of 4 December 1973, had also resorted to the classical distinction of the use of means with regard to the justification for refraining from disproportionate measures. Cf. Ashley and O’Rourke (1978), p. 390. Rachels (1975), p. 78. 46 Robinson (1976), p. 311. 47 Cf. Spielman (2007), p. 41. Munson (2009), pp. ix–xvii. 48 Cf. Heitman (1995), p. 409. 49 Teel (1975), p. 8. 50 Teel (1975), p. 8. Cf. Levine (1977), p. 27. 51 Teel (1975), p. 9. 52 Teel (1975), p. 9. 53 Robinson (1976), p. 312.

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attending physician, the team as well as the hospital from erroneous decisions due to a regulated, communication-oriented process flow. (2) Ethics committees can help to ensure that all case-related data and opinions, which one person alone cannot comprehensively interpret, are screened out (“screening out”). (3) A multiperspective discussion opens up the possibility of overcoming, in the best possible way, the assessments of a medical history that are shaped by emotions, subjective interests and specialist narrowness, and of carefully weighing up and clarifying the application of ethical principles (of a material nature, such as the principle of “Primum non nocere”, or of a formal nature, such as the question of the proportionality of means). After recommending the general use of clinical ethics committees in cases of controversial therapeutic decisions, the court emphasized that in the case of Karen Ann Quinlan, the treating physician, together with an ethics committee to be established, must conduct a consultation on “the prognosis as to the reasonable possibility of return to cognitive and sapient life.”54 Only if the attending physician comes to the conclusion that there is no reasonable possibility to help Karen Ann Quinlan once again from her present comatose state to a cognitive and capable status with the help of medical therapy, and this is done in agreement with the caregiver and the Quinlan family, should the groups involved seek consultation with the facility’s internal “Ethics Committee”. If this consultation as a whole concludes that this conviction is conclusive and accurate, then permission is granted to discontinue the current life-sustaining measures and said action can be taken without any civil or criminal liability on the part of all involved.55 Reversing the Superior Court’s decision, the Supreme Court appointed Joseph Quinlan as guardian “with full power to make decisions with regard to the identity of her treating physicians.”56 There is, the statement said, no reason to doubt the father’s fitness as legal representative. Saint Clare’s Hospital nevertheless refused to go down the court-ordered route of setting up the prognosis committee. However, the now treating physicians Julius Korein and Arshad Javed agreed to gradual weaning from the ventilator. As of April 1976, the “MA-1 respirator” was helping Karen Ann Quinlan breathe. By now, a deep bedsore had formed near the pelvis. On May 15, the slow weaning process began. By the end of May, to everyone’s surprise, Karen Ann Quinlan was breathing completely on her own. In June, she was transferred to the Morris View Nursing Home. It was only there that the ordered Ethics Committee—consisting of two theologians, a lawyer, a social worker, a representative of the provider and a doctor57—could finally be established. They deliberated on the question if from now on any aggressive therapy of an acute problem should be classified as inappropriate.58 The committee concluded: “that 54

Robinson (1976), p. 313. Cf. Swazey (1980), p. 151. Cf. Robinson (1976), p. 315. Rothman (2003), p. 229. Stevens (2000), pp. 141 and 142. 56 Robinson (1976), p. 316. 57 Cf. Beresford (1977), p. 77. 58 Cf. Quinlan et al. (1977), p. 307. 55

2.1

Karen Ann Quinlan: Yes to Ethical Decision Making in the Field (1975/1976)

27

there is no reasonable possibility of Karen ever emerging from her present, comatose, condition, to a cognitive, sapient state. The committee unanimously agrees with this opinion”.59 It was not until June 11, 1985, more than 10 years after her collapse, that Karen Ann Quinlan died as a result of pneumonia.60 Just a few months after the ruling, a commentary on medical law summed up: The most potentially revolutionary aspect of the New Jersey Supreme Court’s decision in terms of the everyday practice of medicine was its reliance on the concept of an ‘ethics committee’.61

And another pointed out a flaw: The court gives almost no guidance as to the composition of the ethics committee and no guidance at all on the procedures it must follow.62

In accordance with the understanding of the Supreme Court of New Jersey, a clinical ethics consultation in the form of an ethics committee is only to be called when a decision is to be made on the removal of life-sustaining equipment in comatose patients who are incapable of giving consent and when there is already agreement between the physician, caregiver and relatives. Only then does the locally established ethics committee become active as the final decision-making authority on the question of whether or not the medical prognosis is correct. According to this ruling, the competence of an ethics committee was thus limited to a few decisionmaking situations.63 Nevertheless, important clues to answering the study question can be found in the Quinlan judgment. The first stage in the history of the development of clinical ethics committees shows the following characteristics of pragmatic ethical theory formation: (a) “In the real world”64—according to these words, the Supreme Court emphasizes the preference of decision-making by a clinical ethics committee on site. Not primarily legal, but pragmatic reasons would be the decisive factor in favouring this form of decision-making over a general appeal to a court (“would generally be inappropriate”). With its definition of “hospital ethics committees”, the Quinlan ruling had indeed created a new decision-making authority that intervened between the patient-treatment relationship,65 but nevertheless strengthened local decision-making. 59

Quoted from: Colen (1976), p. 19. After her death, her brain and spinal cord were extensively examined neuropathologically, see Kinney (1994), pp. 1472–1474. 61 Hirsch and Donovan (1977), p. 273. 62 Annas (1976), p. 30. 63 Cf. Congress of the United States (1987), p. 128. Pearlman (1997), p. 260. 64 Robinson (1976), p. 312. 65 See Sweeney (1987), p. 183. Paul W. Armstrong, the Quinlans’ lawyer, later pointed out the dangers of delegating responsibility to ethics committees and argued for an advisory role: “The surrogates for an incapacitated person and the health-care professionals should be the primary 60

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Three Stages in the Development of Clinical Ethics Consultation

When at the end of 1977 the Massachusetts Supreme Judicial Court66 in the Saikewicz case doubted the involvement of hospital ethics committees in accordance with the Quinlan ruling and left decision-making on medical prognosis and patient will to the judicial process,67 the Attorney General and the Commissioner of Health, through the Department of Health of the State of New Jersey, had already issued their own “Guidelines for Health Care Facilities to Implement Procedures Concerning the Care of Comatose Non-Cognitive Patients” in January 1977.68 In it, they support with an elaborate recommendation the establishment of hospital ethics committees as prognosis committees.69 Although in the long term prognosis control did not become established as a task of clinical ethics consultation, the debates following the judgements on the Saikewicz and Quinlan cases overall led to the strengthening of ethical decisionmaking on site—which a few years later was subjected to renewed scrutiny as a result of the therapy procedures of the Doe babies. (b) “The value of additional views and diverse knowledge”:70 Taking up Karen Teel’s draft, the Quinlan ruling presupposes the plurality and heterogeneity, the limitations and fundamental fallibility of individual views in clinically complex and existentially relevant decision-making situations. Teel envisaged a multiprofessional “Ethics Committee composed of physicians, social workers, attorneys, and theologians”,71 which should reflect the complexity of approaches to a case of illness and overcome the limitations of each individual’s own professional and life perspective. (c) By implicitly declaring this multiperspectivity to be a prerequisite for arriving at a “common moral judgment of the community at large”,72 the court rejected an apodictic understanding of ethical decision-making and preferred a procedural one.73 The keyword of the terms of reference is “screening out”. The different points of view entering into dialogue with each other should carefully bring in all dimensions of view related to the therapeutic decision and, on the basis of this argumentative interaction, bring them into a balancing relationship. Edmund

decision makers who, through the vehicle of the ethics committee, seek the keener insight of an interdisciplinary view in deciding on their course of action.” Armstrong (1984), p. 51. 66 Cf. Superintendent of Belchertown State School v. Saikewicz (1998), p. 157. Pozgar (2013), p. 128. 67 Cf. Annas (1979b), pp. 381 and 382. Wolf (1986), p. 13. 68 Cf. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983a), pp. 463–466. 69 Cf. New Jersey State Department of Health (1984), pp. 388–391. 70 Robinson (1976), p. 312. 71 Teel (1975), p. 9. 72 Robinson (1976), p. 308. 73 This precept at the time is still reflected in the expectations of ethics committees by those involved in clinical patient care almost 40 years after the Quinlan ruling, see Marcus et al. (2015), pp. 18–23.

2.2

The Babies Doe: No to the Centralization of Ethical Judgment (1982/1983)

29

D. Pellegrino therefore classified the ruling on the Quinlan case as a kind of democratization74 in the evaluation of medical ethical dilemmas. (d) “The focal point of the decision should be the prognosis”:75 In contrast to the later development of clinical ethics committees, the Quinlan ethics committee had to answer the question of the medical prospect of success. It was about that central aspect of prognosis, whether Karen Ann Quinlan could ever be helped back from her present comatose state to a cognitive, intelligible status with the aid of medical therapy.76 The later development of ethics committees will focus on the provision of advice on matters of immediate patient care. Nevertheless, clinical ethics consultation will integrate the prognostic weighing of different, possible therapeutic paths into its activities. It considers the effects of optional courses of action as a basis for ethical judgement—a procedure described below (see Sect. 4.2.2) by John Dewey as a form of imagined deliberation.

2.2

The Babies Doe: No to the Centralization of Ethical Judgment (1982/1983)

After the Quinlan ruling had elevated the individual medical history, the “case” to the object of the work of a clinical ethics committee, the Montefiore Medical Center in New York brought two further tasks into the debate on clinical ethics consultation with the establishment of the Bioethics Committee in 1977. The committee at Montefiore served to guide the establishment of guidelines and for educational purposes.77 As will be seen, these three tasks (case consultation, guidelines/recommendations for action, education) prevailed by the mid-1980s.78 The process took just under a decade. This can be attributed to the fact that the early phase of the emergence of clinical ethics committees in particular was characterised by very different variants of ethics consultation. Based on developments following the Quinlan ruling, Robert M. Veatch divided the emerging clinical ethics committees into four groups according to their functions as early as 1977: Into committees that provide individual case consultation, into those that also intervene in decisions of political consequence, into purely advisory committees, and into prognostic committees. His conclusion at the time: Hospital ethics committees are a new development, and it is still unclear which types will gain support and how they will evolve.79

74

Cf. Pellegrino (1999), p. 12. Robinson (1976), p. 313. 76 Cf. Prip and Moretti (1997), pp. 147 and 148. 77 Cf. Frewer (2012), p. 13. 78 Cf. Rosner (1985), p. 2694. 79 Veatch (1977), p. 25. Cf. Veatch (1979), p. 522. Veatch (1981), p. 3. 75

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The number of established ethics committees increased, albeit with great regional variation and to a large extent independently of one another.80 A study of 603 U.S. hospitals conducted by Case Western Reserve University School of Medicine in Cleveland in the early 1980s found that, overall, only one percent of the hospitals surveyed had an established ethics committee.81 At the same time, the Catholic Health Association published that 41% of Catholic hospitals had already established an ethics committee.82 During this phase of growth of clinical ethics committees in the USA, which was uneven in terms of content, structure, process and geography, two further cases of illness occurred which led to strong public debate: the Doe babies. Both fates had a decisive influence on the further development of clinical ethics committees in the USA.83 Both bear the name “Baby Doe.” One fate occurred in Indiana, the other in New York.84

2.2.1

Baby Doe (1982)

Baby Doe, a boy, was born on April 9, 1982, in Bloomington, Indiana.85 His physique with slanted eyes, round head shape and flat nose suggested Down syndrome. The low heartbeat and inadequate breathing turned his skin purple. Joe and Mary Doe, his parents, had two other children. At the hospital, Baby Doe was found to have physiological difficulties with food and fluid intake. Doctors’ attempt to place a catheter across the esophagus failed. A pocket-like narrowing blocked the insertion of the tube. In addition, digestive fluid was leaking into the trachea and lungs through an opening in the lower esophagus. The surgeons saw the possibilities of closing this opening, however, the parents, with the support of gynecologist Walter Owens, did not agree to the proposal. The clinic administration and the treating pediatricians, in turn, petitioned the Monroe County court to intervene. The local jurisdiction supported the parents’ request and also assigned a Guardian ad Litem, but he declined to serve. Thus, the guardianship was temporarily transferred to the prosecutor’s office. The next higher level of the County Circuit Court affirmed the judgment. After the county attorney sought review of the jurisdiction in the Indiana Supreme Court and requested that an attorney be appointed as the baby’s legal representative, the judgment was also 80

Cf. Ross et al. (1986), p. 6. The Minnesota Network for Institutional Ethics Committees played a pioneering role from 1982 onwards, Cranford and Van Allen (1985), pp. 22 and 23. Concrete descriptions of tasks can already be found there, cf. Minnesota Medical Association – Committee on Ethics and Medical-Legal Affairs (1985), pp. 611 and 612. 81 Cf. Younger et al. (1983), pp. 443–449. 82 Cf. Kalchbrenner et al. (1983), p. 47. 83 Cf. Murphy (1990), pp. 326 and 327. 84 Cf. Rosenblum and Grant (1986), pp. 391–393. 85 The detailed history of the disease is described in, Pless (1983), p. 664. Placencia and McCullough (2011), pp. 374–376. Koop (1987), pp. 42 and 43.

2.2

The Babies Doe: No to the Centralization of Ethical Judgment (1982/1983)

31

entered on April 14 to the effect that no surgical procedure should be performed. On April 15, the district attorney headed to Washington, D.C., to appear before Supreme Court Justice John Pauls Stevens by emergency medical petition. That same night, Baby Doe passed away. The fate of Baby Doe attracted enormous public interest.86 “Infant Doe was the first case of its kind to attract significant national attention.”87 Political debates about the ethical question of the right to life of children with disabilities ignited. Within the Republican Party the number of voices arguing that mandatory treatment rules should be established by the state for such cases, which, if not followed, could result in the withdrawal of public funding, grew. On April 30, 1982, President Ronald Reagan instructed the Secretary of the Department of Health and Human Services (HHS) to notify all health care workers that Section 504 of the Rehabilitation Act88 also applied to children as it did to other people with disabilities, i.e., that it was against the law to withhold artificial nutrition,89 medical or surgical treatment from a child with a disability who had a life-threatening condition—especially if the withholding was based on the child’s disability and if the disability was not the reason for the contraindication of the treatment or medical-artificial nutrition. A letter to this effect was sent to the 6800 federally-funded hospitals in the United States in May 18, 1982.90 In March 1983, the Department of Health and Human Services also ordered that a notice be posted in delivery rooms, pediatrics, and neonatal intensive care units stating, “Discriminatory failure to feed and care for handicapped infants in this facility is prohibited by federal law.”91 In addition, a public appeal was made to call a 24-h toll-free hotline in Washington, D. C. at HHS to report appropriate violations.92 It was not until the American Academy of Pediatrics, along with the National Association of Children’s Hospital and Related Institutions and Children’s Hospital National Medical Center, intervened in Federal Court that the Court declared the Department of Health and Human Services order unlawful on April 14, 1983.93 Immediately after this decision, Alexander Morgan Capron, the director of the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research—to which a separate section is devoted below—

86

Cf. Evans (2008), pp. 211–215. Sarno (1987), pp. 202 and 203. Meilaender (1982), p. 318. Smith (1986b), p. 789. 88 The Rehabilitation Act of 1973 was established as a federal anti-discrimination standard to protect and promote people with disabilities, see Vaughn Switzer (2003), pp. 24–28. 89 Cf. Paris and Fletcher (1983), pp. 210 and 211. 90 Cf. Cosby (1982), p. 705. 91 Quoted from, Annas (1984b), p. 619. Cf. Smith (1984), p. 713. DeCruz (2001), p. 404. 92 Cf. Merrick (1992), p. 46. 93 Cf. Roddey Holder (1985), p. 90. American Academy of Pediatrics – Committee on Bioethics (1983), p. 565. Annas (1993), pp. 18 and 19. 87

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spoke out in the Washington Post and argued for the establishment of ethics committees: They “are close enough to the situation to be aware of the relevant factors and the changing developments in each baby’s condition, but they can also be removed enough to provide an independent assessment of whether further treatment is unlikely to offer a net benefit to the baby.”94

Eventually, there was a redraft of the HHS order, which was published with a request for comments. Over 17,000 comments were received. Among them was the American Academy of Pediatrics with the plea: In addition to promoting the patient’s interests, consultation will protect physicians from charges of hasty or negligent decisions. To serve the interests of patients and physicians, however, there must be accountability in the form of an institutionally approved group such as a bioethics review committee. How such groups are formed, what procedures they should follow, and other procedural issues need to be further developed. (. . .) An institutional ethics committee will not be a panacea for making ethically correct decisions, but it should increase the probability that such decisions are informed and consistent with the broadest moral values of our society.95

This feedback was of enormous importance, since on the one hand it decisively rejected the official centralization efforts of ethical decision-making by the HHS and on the other hand it brought the practical concept of ethics committees into play for the ethical dilemmas in gynecological, pediatric and neonatological care. Case law, in this case the Second Circuit Court of Appeals, disagreed with the amended HHS guidelines in October 1983, finding them unlawful.96 Unlike the Karen Ann Quinlan case, at this stage it is not a specific judicial ruling, nor is it the HHS regulatory decrees that have directly advanced the substantive, structural, and procedural development of hospital ethics committees, but rather the public responses of medical and hospital professional societies and individual renowned experts. Some examples: Criticizing the Department of Health and Human Services order, medical jurist George J. Annas called for “We need more reflection, more accurate information, consultation, and public involvement in decision making regarding handicapped newborns. But we pay a very high price by rushing to assume that every physician is a potential child abuser and that every nurse must be a police informant to protect newborns from harm.”97 Neurologist Ronald E. Cranford noted, “If an ethics committee had been in place in Bloomington, that case would never have gone the way it did, because the first element of good decision making is that you have to have your medical facts straight.”98 Under the chairmanship of Edward A. Doudera, the American Society of Law and Medicine

94

Capron (1983), p. A15. American Academy of Pediatrics – Committee on Bioethics (1983), p. 566. Cf. Strain (1983), pp. 443 and 444. Smith (1982), p. 1137. 96 Cf. Drane (1994), p. 107. 97 Annas (1983), p. 27. 98 Hosford (1986), p. 55. 95

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The Babies Doe: No to the Centralization of Ethical Judgment (1982/1983)

33

convened its own “Committee on the Legal and Ethical Aspects of Health Care for Children” (in short: “Children’s Committee”). Its task was to provide recommendations for action and practical information for the infant children’s committees working in the field. Individual case consultation was not offered.99 Doudera presented this alternative concept to the HHS approach in his article “Section 504, Handicapped Newborns, and Ethics Committees: An Alternative to the Hotline”.100

2.2.2

Baby Jane Doe (1983)

As mentioned above, when the Baby Doe case is spoken about in the literature on medical ethics and medical law, it is important to take a closer look. This term is used to refer not only to the case described above, but also to a second case: Baby Jane Doe. The name was taken from legal publications in order to emphasize the thematic connection to the case described above.101 The girl’s real name was Kerri-Lynn, the first child of Dan and Linda, born October 11, 1983, at St. Charles Hospital on Long Island. Due to her severe illness, she was soon transferred to Stony Brook University Hospital in New York. KerriLynn suffered from an extreme form of spina bifida, a malformation of the neural tube in which the spinal cord protruded through the skin of the back, and a weakly developed prefrontal cortex. Secondary conditions diagnosed were hydrocephalus, a malformed brainstem, and a prolapse of the intestine. The arms were in spastic posture. In addition, the neurologist in charge, Arjen Keuskamp, and the pediatric neurologist, George Newman, expressed very different prognoses about the course of the disease and the chances of therapeutic intervention. Keuskamp saw an indication for immediate surgical intervention. Newman was more reluctant to do so, pointing to the consequences of paralysis, enormous mental limitations and susceptibility to infections of the bladder and intestines. Ultimately, the parents consented to the administration of nutrition and antibiotics and treatment of the open back. However, they objected to surgical interventions. This fate also caused an enormous legal and public sensation.102 George J. Annas describes the situation at the time by saying, “in the ‘Baby Doe’ regulation era, however, it was predictable that at least one child like Baby Jane Doe would be chosen to be a test case to determine the proper role of the state in decisions to withhold surgery from handicapped newborns.”103 And so it came to the effort for state intervention: 5 days after the girl’s birth, Lawrence Washburn Jr.—himself the father of a disabled daughter—filed suit in New York State Court challenging the

99

See Committee on the Legal and Ethical Aspects of Health Care for Children (1983), p. 204. Cf. Doudera (1983), p. 202. 101 On US case law in similar cases, see Pence (2004), pp. 217–220. 102 Cf. Horan and Balch (1985), pp. 54–58. 103 Annas (1984c), p. 727. 100

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Three Stages in the Development of Clinical Ethics Consultation

failure to treat. After an initially successful suit,104 the upper court of the New York Court of Appeals rejected the lower court’s decision on October 28, 1983, basing its ruling on the fact that not performing the surgery would not put the girl’s life in danger and that decisions for the child’s welfare should continue to be left to the parents.105 Furthermore, it could not be ruled out that a surgical intervention would destroy the weak function of the leg, damage the urinary tract and cause possible kidney and skin infections as well as swelling of the limbs. On October 18, 1983, the Birthright organization initiated a lawsuit to continue treatment. Just 2 days later, the hearing in the first instance took place. It was determined that the attorney William Weber would be appointed as guardian until further notice. After initially representing the parents’ view, he changed his mind after reviewing the prognosis evaluations. He now supported the surgical procedure. The parents, through their attorney, appealed to the State Supreme Court. Within 3 days, the State Supreme Court reversed the previous court decision and awarded the parents custodial responsibility over Kerri-Lynn. The reason given for this was that guardianship must remain with the parents until the present therapeutic decision between two medically justified variants had to be made. Lawrence Washburn, Jr. also appealed this decision to the New York Court of Appeals. On October 28, 1983, the Court of Appeals denied Washburn’s petition.106 The public discussions surrounding Baby Jane Doe also prompted the Department of Justice and the Department of Health and Human Services (HHS) to intervene. After receiving an anonymous call alleging discrimination under Section 504 of the Rehabilitation Act of 1973, HHS contacted Stony Brook Hospital and insisted on seeing Kerri-Lynn’s medical records. The hospital refused. A court action to obtain access to the records in the first instance was unsuccessful. Finally, HHS asked the Department of Justice for assistance. Another complaint in Federal Court for disability discrimination was prepared. This complaint also went to the New York Court of Appeals, which, on February 23, 1984, enjoined public authorities from inspecting Kerri-Lynn’s medical records. At the same time, the claim communicated in the above-mentioned letter from HHS (dated May 18, 1982) that the authorities had a right to intervene based on anonymous reports was rejected as unlawful.107 After nearly 6 months, Kerri-Lynn was able to be released home.108 Prior to this, the parents had agreed to the placement of a drainage of the hydrocephalus and to antibiotic therapy. In the winter of 1984, on January 12 to be exact, the HHS published the revised version of “Baby Doe Regulation II”. The official title was: “Nondiscrimination on the Basis of Handicap: Procedures and Guidelines Relating to Health Care for

104

Cf. Kerr (1984), p. 7. Paige and Karnofsky (1986), pp. 261 and 262. Cf. Roddey Holder (1985), pp. 93 and 94. 106 Cf. Steinbock (1984), p. 14. 107 Cf. Annas (1984c), p. 728. 108 Cf. Biklen and Ferguson (1984), p. 5. 105

2.2

The Babies Doe: No to the Centralization of Ethical Judgment (1982/1983)

35

Handicapped Infants”.109 Among other things, HHS recommended the establishment of so-called “Infant Care Review Committees (ICRC)”110 at the close to 7000 federally supported hospitals. George J. Annas summarized after meticulous analysis of the text: The only meaningful novelty in the January 1984 regulation refers to Infant Care Review Committees (ICRC).111

And Peter J. Riga added: Perhaps a serious dialogue can begin with the widespread use of ethics committees which has now been recognized by the federal government.112

When within a few weeks, in July and August 1984, the Senate passed the Baby Doe Amendment (Child Abuse Law) and the American Academy of Pediatrics published new recommendations for action on “Infant Care Ethics Committees”,113 the idea of Clinical Ethics Committees for the fields of obstetrics and pediatrics and adolescent medicine was massively strengthened.114 The American Academy of Pediatrics’ elaborations stipulated that parents, a practicing specialist, a nurse, a member of the administrative staff, social services, representation of persons with disabilities, a citizen representative and a member of the medical staff (chair) should be part of the “Infant Care Ethics Committee”. In addition, optional representation from pastoral care, legal counsel, personnel from specialized medical fields, and others able to contribute expertise in the treatment of children with disabilities could be appointed.115 In contrast to the Quinlan ruling, the “Baby Doe Amendment” emphasizes more clearly that ethics committees are not reducible to a dedicated prognosis control, but must function as an advisory body (“an advisory role”)116 for the preparation of treatment recommendations and for the retrospective discussion of completed cases. However, the Appendix to the Terms of Reference of the Infant Care Review Committees clearly states the intention of the HHS: In cases of doubt, the HHS reserves the right to contact the committee directly and to request a statement including reliable documentation within 24 h.117

109

Cf. N. N. (1992), p. 318. Lawlis Kuzma (1984), pp. 391–400. Cf. Todres (1985), p. 256. 111 Annas (1984b), p. 619. Cf. Klinefelter (1984), pp. 425 and 426. Brown (1986), p. 244. 112 Riga (1984), p. 256. Cf. Engelhardt (1986), p. 247, endnote 56. 113 A first preliminary draft was published: American Academy of Pediatrics (1983), pp. 6 and 7. The following text was published by the professional society, American Academy of Pediatrics Infant Bioethics Task Force and Consultants (1984), pp. 306–310. Cf. Walker (1988), pp. 563 and 564. After several updates, the currently valid version can be found at: American Academy of Pediatrics (2001), pp. 205–209. 114 Cf. Johnson and Thompson (1984), p. 729. Fleming et al. (1990), pp. 780 and 781. 115 Cf. Black (1987), pp. 272 and 274. 116 Cf. Smith (1984), p. 721. Reiser (1986), pp. 210 and 211. 117 Cf. Annas (1984b), p. 620. 110

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Three Stages in the Development of Clinical Ethics Consultation

Compared to the Quinlan ruling, two new aspects in the contouring of clinical ethics committees emerge after the Doe babies: a) “An institutionally approved group such as a bioethics review committee”:118 Surgeon and medical ethicist Arthur L. Caplan commented on HHS’s regulatory centralization efforts in the Doe babies’ cases: “It is one thing to allow federal officials outside the clinical setting the right to override provider decisions in the neonatal nursery. It is a different matter to argue that federal agencies ought to have the authority to see charts and records retrospectively in order to assess the quality of care.”119 The debate over the first version of the HHS regulations revealed a strong opposition, supported by medical associations, to the agency’s centralized form of therapeutic decision making in ethical dilemma situations. Political scientist Fred M. Frohock spoke of the “‘Big Brother’ attitude of the federal government in therapy decisions.”120 The voices for decentralized, communication-oriented, standardized support structures became louder.121 Here are two exemplary statements from this period: Pediatrician Alan R. Fleischman and bioethicist Thomas H. Murray traced this decentralizing trend of decision making in favor of ethics committees in their paper “Ethics Committees for Infants Doe?” Ethics committees, which are scarce and little used, have suddenly become the focus of attention as a means to handle decisions concerning seriously ill newborns. (. . .) We believe that, on balance, hospital ethics committees have the potential to promote good decision making with fewer disadvantages than the alternatives.122

David A. Smith, then assistant attorney general of New York, commented: In addition, recent government attention appears to have hastened the voluntary move toward the utilization of ethics committees as a form of institutional review of medical treatment decisions. (. . .) Government involvement will be relatively unobtrusive if the decision-making procedures are sound, equitable, understandable, and in conformance with existing law; thus, it certainly behooves medical institutions to spend a good deal of time and care establishing and periodically reviewing their own procedures.123

In contrast to the Quinlan decision, in which the prognosis judgement of the ethics committee was ordered by the court in that individual case, it was now fundamentally a question of structuring the procedure in ethical dilemma situations in obstetrics and pediatric and adolescent medicine. b) “An advisory role”:124 At least since the revised version of the HHS regulation of January 1984, the conviction has prevailed that clinical ethics committees

American Academy of Pediatrics – Committee on Bioethics (1983), p. 566. Caplan (1992), pp. 110 and 111. Goldworth and Stevenson (1989), p. 121. 120 Frohock (1986), p. 135. Cf. Moss (1987), p. 632. 121 Cf. Barry (1985), pp. 363–365. 122 Fleischman and Murray (1983), p. 5. 123 Smith (1986a), p. 130. 124 Cf. Smith (1984), p. 721. 118 119

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The Babies Doe: No to the Centralization of Ethical Judgment (1982/1983)

37

should be established as advisory bodies and should not be entrusted with prognosis evaluations (Quinlan), the evaluation of research projects (Institutional Review Boards), or distribution decisions (Seattle Artificial Kidney Center’s Admission and Policy Committee). As will be shown, in 1985, with the publication of the “Model Guidelines for Health Care Providers to Establish Infant Care Review Committees,” HHS created a role assignment for ethics committees that, while still ambivalent, also underscored that ethics committees are usefully employed when they are understood as “purely advisory”.125 An important impulse for this was probably already given in 1977 by the Massachusetts Supreme Judicial Court in its ruling on the Joseph Saikewicz case. Joseph Saikewicz was 67 years old at the time of the trial. Because his mental faculties were comparable to those of a toddler of 2–3 years, he was unable to communicate verbally. He expressed himself through gestures and sounds. Since 1928 he lived in the Belchertown State School (Massachusetts). In 1976 he was diagnosed with acute myeloid leukemia. Without treatment, the attending physicians estimated that his life expectancy would be a few months at most. Chemotherapy was offered, and a guardian was court-appointed. Litigation ensued. The guardian gave feedback to the court that he had received information that the leukemia was incurable, but that chemotherapy was nevertheless medically indicated. Since significant side effects were to be expected, he argued for refraining from chemotherapy treatment. In its ruling, the court strengthened the right to vicarious disallowance. In addition, it addressed the role of the ethics committee in the Karen Ann Quinlan case and corrected its position for the Saikewicz case to the effect that direct involvement in the decision-making process could not be represented. Rather, the ethics committee had a valuable support (“great assistance”) and advisory function on the path to decision-making.126 This was the first time that a federal court had attempted to formulate the role of ethics committees as advisory bodies.127 Even if a more concrete description of this activity was omitted, the advisory task visibly prevailed over the prognosis review. A few years later, the events surrounding the Doe babies underscored the functional description of ethics committees as purely advisory bodies in the face of complex therapeutic decisions.128 Surveying the entire process of the Baby Doe controversies, pediatrician Norman Fost writes: The Baby Doe rules were also accompanied by an acceleration in the development of hospital ethics committees. (. . .) As a result, decision making about treatment of critically ill and handicapped infants became more collaborative, including professionals and occasionally lay persons who work outside of the newborn intensive care unit.129

125

Haddon (1985), p. 582, footnote 130. Cf. Superintendent of Belchertown State School v. Saikewicz (1998), p. 157. 127 Cf. Berg et al. (2001), pp. 122 and 123. 128 Cf. Robertson (1984), p. 444. Robertson (1986), p. 228. 129 Fost (1999), p. 2041. 126

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Three Stages in the Development of Clinical Ethics Consultation

In the midst of this stage in the establishment of clinical ethics consultation, a publication by the highest bioethics body in the USA led to the implementation of an interdisciplinary description of tasks. For this third stage in the development of clinical ethics consultation, it is necessary to go back to the years 1982 and 1983.

2.3

The Presidential Commission: A Recommendation on Ethical Pragmatics (1983)

On March 10, 1983, the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research published the report “Deciding to Forego Life-Sustaining Treatment”—“the Commission’s most notable work”.130 The Commission, which was instructed by the US Congress in 1978 and began its work in 1980, was a group of renowned experts with a wide range of qualifications (such as the neurosurgeon H. Thomas Ballantine, the Jewish theologian Seymour Siegel, the sociologist Renée Claire Fox, the Catholic theologian Albert R. Jonsen and the geneticist Arno G. Motulsky) was entrusted, in varying compositions, with the task of succeeding the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research (1974–1978) by drafting statements on current biomedical controversial issues and submitting them to the President and Congress.131 As early as October 1982, the Commission issued a report, Making Health Care Decisions: the Ethical and Legal Implications of Informed Consent in the PatientPractitioner Relationship. The introduction states: Health care institutions should explore and evaluate various informal administrative arrangements, such as ‘ethics committees’, for review and consultation in nonroutine matters involving health care decisionmaking for those who cannot decide.132

While the topic of clinical ethics consultation plays no role in the first three parts of the report, the fourth part is devoted to all those patients who are unable to give consent or refuse a therapy offer. Under the heading “Procedures for Surrogate Decisionmaking”, the Commission lists the possibility of an “Institutional Review” as the last point of the entire document. The text refers to “Institutional Ethics Committees” instead of “Hospital Ethics Committees”, since their use is also recommended in non-clinical health care facilities. Such committees are close to the treatment situation, their consideration processes are informal, not public, and they are relatively easy to organise. However,

130

Jonsen (1998), p. 109. Cf. Placencia and McCullough (2011), p. 375. Cf. Gray (1995), pp. 263–269. Annas (1988), pp. 325–333. 132 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1982), p. 6. 131

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The Presidential Commission: A Recommendation on Ethical Pragmatics (1983)

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it is difficult for the Presidential Commission to make a uniform recommendation on the practice of ethics committees: The composition and functions of existing ethics committees vary substantially from one institution to another. Not enough experience has accumulated to date to know the appropriate and most effective functions and hence the suitable composition of such committees.133

The composition of a committee should depend on its task. If its role is primarily understood as a prognosis committee, then a predominantly medical composition would be appropriate. If the ethics committee was to contribute to a decision-making process that had to reflect the individually defined patient welfare or the “ethicality of decisions” as best as possible, then it seemed doubtful that this could be achieved by a group composed exclusively of physicians. If the task consisted in evaluating whether a representative was suitable to bring the interests of the patient to bear, then different perspectives should come to the fore. From what little is already known, it seems that ethics committees may be able to take a leading role in formulating and disseminating policy on decisionmaking for incapacitated patients, assisting in the resolution of difficult situations, and protecting the interests of incapacitated patients. Although committees can be reasonably prompt, efficient, sensitive, and private, having many of the decisions about health care for the incapacitated made in an informal manner between surrogate and provider is plainly a desirable objective as well, just as routine decisions for competent patients should be made by patient and provider without any outside intervention.134

The Commission recommends that institutions consider different forms (seeking advice in emergency situations, ethics committee, legal advice) of organised decision review and consultation. At the end of the report, it is admitted that too little is known about the everyday experiences of staff and patients in dealing with the instruments of clinical ethics consultation. Overall, it is noticeable that the 1982 report considered the studies on ethical counselling already published at that time, but only provided initial, appreciative and classifying comments on this new counselling instrument. While the report still focused on support in the treatment of patients who were incapable of giving consent, it also considered the possibility of its use in all ethically relevant decision-making issues in direct patient care. One year later, the Commission dealt with clinical ethics consultation in more detail.135

133

President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1982), p. 187. 134 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1982), p. 188. 135 Cf. Bernat (2008), p. 110.

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2.3.1

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Three Stages in the Development of Clinical Ethics Consultation

The “Deciding to Forego Life-Sustaining Treatment” Report

Of the eleven texts (e.g. on the definition of death, on the regulation of human experimentation, on whistleblowing in biomedical research) submitted by the Presidential Commission in the course of the more than 3 years under the chairmanship of jurist Morris B. Abram, “Deciding to Forego Life-Sustaining Treatment. A Report on the Ethical, Medical, and Legal Issues in Treatment Decisions” counts among the documents published at the end of the appointment period. As in all its publications, the Commission’s aim was to help clarify the issues and highlight those facts that appear particularly necessary for informed decision-making. In addition, the aim is to suggest improvements to public institutions and to offer guidance to people in positions of responsibility, without prescribing specific decisions based on moral principles.136 In 1983, the same year that the President’s Commission presented the report “Deciding to Forego Life-Sustaining Treatment,” the American Medical Association published the study “Physician and Public Opinion on Health Care Issues,” which impressively demonstrated the growing distrust of broad segments of the population in physicians’ actions: Only about 20% of U.S. citizens believed that physicians kept the costs of medical care low, two-thirds saw too much interest on the part of physicians in profit-making treatments, and more than half warned that the medical profession spent too little time with patients or did not explain matters well.137 “Deciding to Forego” is divided into two parts and a total of seven chapters. The first part is devoted to the practice of making treatment decisions. There, the legal framework and the basic conditions of good decision-making are described, oriented towards the guiding principle of “shared decision-making”. The second part discusses different groups of patients who have special requirements in such decisionmaking situations: Patients who cannot make current decisions, patients in a state of unconsciousness, seriously ill newborns, and clinical patients who may foreseeably be affected by resuscitation measures.138 When Commission Chairman Morris B. Abram delivered the report to President Ronald Reagan in a letter dated March 21, 1983, he elaborated on an issue that the commission had addressed in passing throughout its work. To ensure that the interests of incapacitated patients were protected, Abram said, the commission suggested that all health care institutions develop and use “internal review” methods that allow all relevant aspects to be examined and all opinions to be heard. They

136 Cf. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983b), p. 3. 137 Cf. Hosford (1986), p. 23. 138 Cf. Winkler (1985), pp. 81–84. Atkinson (1984), pp. 36–41 and 70.

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The Presidential Commission: A Recommendation on Ethical Pragmatics (1983)

41

should also have the effect of improving communication between the whole treatment team and patients’ families.139 What Morris B. Abram called “methods of internal review” is given its own subheading in the 550-page publication in chapter four “Patients who lack decisionmaking capacity” of the second part “Patient groups raising special concerns” with the title “Intrainstitutional review and the role of Ethics Committees.”140 In his study on the history of American medical ethics, Robert Baker confirms that the description of the structures and functions as well as the unresolved problems of the ethics committees, which is only about ten pages long,141 was of great importance for their further shaping: Of more immediate relevance to the practice of ethics committees was the model of nonpaternalistic, shared decision making in the end-of-life care articulated in the President’s Commission’s report, Deciding to Forego Life-Sustaining Treatment.142

The report admits that there is still no uniform terminology for the organizational units in health care that are dedicated to ethical aspects in patient care, but at the same time points out: “The institutional body most often mentioned in decision-making contexts is the ethics committee.”143 In accordance with the assignment to chapter four, the Commission document limits the case-typical competence of ethics committees to “effective decisionmaking for incapacitated individuals” and places the tasks predominantly described in the study literature at the beginning of the explanations. In all, four functional areas are presented.144 The first function describes the case-based prognosis review as envisioned by the Supreme Court of New Jersey in the case of Karen Ann Quinlan. In the future, these committees should better be called “prognosis review committees”.145 Secondly, there is an increasing number of “primarily consultative ethics committees”, which take into account the “broader social and ethical concerns raised by a particular case.”146 In this context, consultative ethics committees would play an

139 Cf. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983a), p. II. 140 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983a), pp. 160–170. Cf. Lynn (1984), pp. 25–30. 141 In addition, clinical ethics consultation is briefly mentioned at the beginning of the second part (“Patient Groups Raising Special Concerns”, p. 119) and therein in the presentation of current case law (fourth chapter, pp. 155–157), in the fifth chapter on permanently unconscious patients (194 and 195) and in the sixth chapter on seriously ill newborns (227). 142 Baker (2013), p. 305. 143 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983a), p. 161. 144 Cf. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983a), pp. 160 and 161. Cranford and Van Allen (1985), pp. 20–22. 145 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983a), p. 162. 146 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983a), p. 160.

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“important educational role” in practicing interdisciplinary case review (“a diverse membership (. . .) to share perspectives and views, which can lead to better decisions”147), in transferring knowledge of ethical principles into clinical practice, and in collecting paradigmatic cases. In addition, these committees could ultimately also serve as a “focus for community discussion and education”148 for broader, public discussion of current bioethical topics. From the practice—the third function—of case discussion, ethics committees have the opportunity to function as an integral part of institutional “policy and guidelines regarding such decisions”. The report does not describe how this task should be approached. The text adds another function:149 “to review certain decisions made by the family of an incapacitated person and his or her practitioner.”150 The committee would then serve to review whether the expressed interests of the relatives credibly correspond to the presumed interests of the incapacitated patient and whether the therapy offered is justifiable. Such an assignment of tasks was to be seriously discussed, because it must be clarified that the primary decision-making authorities—the attending physician and the relatives or authorized representatives—would not be replaced. At the same time, the committee must ensure that no control authority is created within the institution in which employees and relatives see themselves as suspects. Under no circumstances should the impression be created that a kind of pre-judicial clarification authority was being created. The fourth and final function listed in the report is that ethics committees sometimes also function as “actual decisionmakers.”151 The President’s Commission rejects this aspect, pointing out that the health professionals and deputies providing care are the primary decision-makers regarding persons who are incapable of giving consent. The assumption or delegation of decisions relevant to therapy to an ethics committee must therefore be avoided. The remaining six pages of the section “Intrainstitutional review and the role of Ethics Committees” summarize unresolved issues regarding the establishment of clinical ethics consultation. Concerns are raised about bureaucratization of clinical decision-making through overuse of the ethics advisory committee,152 the right to appoint members, the relationship of membership composition and hospital-specific

147 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983a), p. 163. 148 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983a), p. 163. 149 This function acts as an insertion because it does not appear in the preceding overview (160), nor does it fit in with the third and fourth functions. 150 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983a), p. 164. 151 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983a), p. 164. 152 Cf. Capron (1984), pp. 183 and 184. Viafora (2005), pp. 185 and 186.

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The Presidential Commission: A Recommendation on Ethical Pragmatics (1983)

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task assignment, the establishment of subcommittees or operational groups153 to expedite the organization of consultations, and the convening and attendance of meetings.154 Concluding its considerations on data protection and confidentiality, the liability of members and the legal clarification of the status of ethics committees in the various countries, the Presidential Commission maintains its position despite the unsettled legal situation and the divergent case law at this time: The Commission believes that ethics committees and other institutional responses can be more rapid and sensitive than judicial review: they are closer to the treatment setting, their deliberations are informal and typically private (and are usually regarded by their participants as falling within the general rules of medical confidentiality), and they are able to reconvene easily or delegate decisions to a separate group of members.155

Experience with Institutional Review Boards for the review of medical research projects over the past 15 years has shown that such boards are widely accepted in the clinical setting and can be used effectively.

2.3.2

The Model Guidelines of the HHS and the Criteria of the JCAHO

With the report “Deciding to Forego Life-Sustaining Treatment”, a national committee not only summarized the essential aspects of the US debate on clinical ethics consultation, but also gave concrete indications for its further development. Together with the public attention surrounding the Doe babies, the professionalisation of clinical ethics consultation began to progress rapidly from 1983/1984 onwards.156 Here are some highlights of this period: As already mentioned in Sect. 2.2, a study of 603 hospitals in the USA conducted by Case Western Reserve University School of Medicine in Cleveland at the beginning of the 1980s showed that overall only one per cent of the hospitals surveyed had an established ethics committee.157 Approximately at the same time, the American Academy of Pediatrics also found that two-thirds of 200 hospitals surveyed had established infant care review committees. Well-known pioneers such as Beth Israel Hospital in Boston, which had set up a rapidly established Ethics Advisory Group, thus found resonance in the medical

153

Cf. Morrison et al. (1989), p. 86. At this point, the President’s Commission inserts a proposal that was not later accepted. It recommends that all therapeutic decisions for seriously ill newborns and for patients who have no “natural surrogate” should be subject to review, cf. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983a), p. 167. 155 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983a), p. 168. Cf. Cranford and Doudera (1984), p. 13. 156 Cf. Bartholome (1994), p. 8 and 9. 157 Cf. Younger et al. (1983), pp. 443–449. 154

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community. As a special feature, all those involved in patient care were able to convene a meeting and call in as many external advisors (pastoral care, administration, medicine, nursing, legal department, etc.) as necessary.158 In 1984, the Hastings Center reported a flood of inquiries about the task of clinical ethics committees.159 At the same time, articles on the functioning of ethical case consultation were increasingly appearing in prestigious medical journals.160 A striking example of the increased attention to ethical issues in clinical procedures is the New York State Task Force on Life and the Law, convened by Governor Mario Cuomo. This was charged with developing public policy recommendations on issues such as determining the time of death, limiting therapy, organ transplantation, therapy for newborns with disabilities, and reproductive technologies. Special attention was paid to the recommendation issued in 1992, addressed to “each health care facility” in New York State, to establish its own “Bioethics Review Committee” or to participate in an existing one.161 In January 1984, the American Hospital Association issued the “Guidelines: Hospital Committees on Biomedical Ethics.”162 It had already founded its own “Special Committee on Biomedical Ethics” in 1982, which developed these guidelines with the intention of standardizing clinical forms of ethics consultation nationwide. In the report “Values in Conflict: Resolving Ethical Issues in Hospital Care”, concrete areas of responsibility were proposed,163 which were addressed to all members of the hospital society, but their implementation was not made obligatory. Four tasks of clinical ethics consultation were named: “(1) directing educational programs (. . .), (2) providing forums for discussion (. . .), (3) serving in advisory capacity (. . .), and (4) evaluating institutional experiences related to reviewing decisions.”164 The task of providing a kind of internal, legal substitute review as a permanent review body was rejected. The multidisciplinarity of the members, the advisory character and the permanent institutional anchoring were retained. The American Medical Association, the largest professional representation of the medical profession and medical students in the USA, adopted its first “Guidelines for

158

Cf. Bard (1990), pp. 259 and 260. Rabkin et al. (1976), p. 364. Cf. Levine (1984), p. 9. Specifically, on the “Infant Bioethics Committees”, Carter (1993), p. 144. 160 Cf. Purtilo (1984), p. 985. 161 New York State Task Force on Life and the Law (1997), p. 347. This form of “bioethics review committee” should always take into review-even in the absence of an expressed conflict by the parties involved-three sensitive groups of cases: (1) when a legal representative wishes therapy to be limited or terminated in the entrusted patient who is neither suffering from an incurable, terminal illness nor permanently unconscious, (2) when a decision to forgo life-sustaining measures is to be made and no legal representative is determined to be available, (3) when a mature adolescent wishes to forgo life-sustaining measures. Cf. Veatch (1995), p. 426. Moreno (1993), pp. 9 and 10. 162 Cf. American Hospital Association (1986), pp. 110 and 111. 163 Cf. Sherman (1984), p. 131. 164 American Hospital Association (1986), p. 110. 159

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The Presidential Commission: A Recommendation on Ethical Pragmatics (1983)

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Ethics Committees in Health Care Institutions” in December 1984.165 Compared to the recommendations of the American Hospital Association, these do not bring any fundamental innovations, but merely emphasize the voluntary nature of the use and include a separate passage on hospitals under the sponsorship of a certain religious group. It is striking that the Guidelines of the American Medical Association focus strongly on case consultation in imminent treatment decisions, for which concrete proposals were presented on the process flow of such consultation. Regarding the main task of clinical ethics committees, it is stated: Generally, the function of the ethics committee is to consider and assist in resolving unusual, complicated ethical problems involving issues that affect the care and treatment of patients within the health care institution and concern those persons who are responsible for their care and treatment. Typical are issues involving quality of life, terminal illness, and utilization of scarce, limited health resources.166

Finally, on April 15, 1985, the Department of Health and Human Services (HHS) published the “Final Rule” as the conclusion of the longstanding debate after the fates of the Doe babies, as outlined above, in which its own “Model Guidelines for Health Care Providers to Establish Infant Care Review Committees”167 were issued in the wake of the “Child Abuse Amendment” of 1984.168 These are of no small importance for the present topic and the further development of ethics consultation, because they summarize for the first time at the national level the three main tasks that still characterize ethics consultation in health care today. Infant Care Review Committees are recommended to all hospitals involved in the care of babies and young children, but especially to neonatology centres. At the outset, the text follows up on the Deciding to Forego Life-Sustaining Treatment report, input from several clinical and medical societies, and the Child Abuse Amendment. It is made clear that the guidelines are “purely advisory. They are not mandatory in any way.”169 The introduction is followed by the notes on establishment and objectives. There the three main tasks are summarized, which are later described under the numbers “IV. Educational Activities”, “V. Policy Development” and “VI. Council and Review in Specific Cases”. Under “III. Membership and Administration” detailed ideas on the multidisciplinary composition can be found. The “core membership” is presented as: One representative each from the medical profession, nursing, administration, social work, a representative of people with disabilities, a medical layperson, and another member of the medical profession who should hold the chair. In addition, local

165

Cf. American Medical Association (1986), pp. 112 and 113. American Medical Association (1986), pp. 112. 167 See Department of Health and Human Services (1985), pp. 14893–14901. Child Abuse and Neglect Prevention and Treatment: Final Rule (1998), pp. 238–246. Annas (1984a), p. 844. Bopp and Nimz (1992), pp. 96–99. 168 Cf. Gerry and Nimz (1987), pp. 342–355. Mumaw (1985), p. 528. 169 Department of Health and Human Services (1985), p. 14893. Cf. Shapiro and Barthel (1986), pp. 847–853. 166

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consideration could be given to involving pastoral care, lawyers, specialists or other persons with special knowledge of children’s health care.170 In listing the main tasks, the Model Guidelines begin with the educational mandate (IV. Educational Activities) of the Infant Care Review Committees. This is described extensively by stating that, in addition to internal continuing education for clinical staff, the ethics committee is to serve as a point of contact for organizations for post-hospital continuing care, information on rehabilitation programs, and other recreational opportunities for families of children with disabilities.171 The second main task, the creation of recommendations for action (V. Policy Development), is given the basic direction: “the basic policy should be to prevent the withholding of medically indicated treatment from disabled infants with lifethreatening conditions.”172 In line with the Child Abuse Amendment, it is explained that cooperation between the state child protection authorities and hospitals should be improved, which also means, among other things, that violations and suspected cases should be reported as quickly as possible. There are clear ideas on the organisation of ethical case consultation, the third main task. It could be used as a review or as an accompanying consultation procedure. For effective support in ongoing treatment, the processes should be designed in such a way that the continuation of therapy for children with disabilities in a life-threatening condition can be guaranteed until the Infant Care Review Committee reviews the case and gives advice—in emergency cases within 24 h at the most. Within the committee, one member should take on the role of a “special advocate” for the child.173 The Model Guidelines attempt to consider and structure the various constellations that make case consultation necessary. In doing so, they sometimes intervene very deeply in the treatment decision-making process: For example, in the case of an irreconcilable conflict between the treating physician and the child’s family, (a) the committee should recommend that the family’s wish to continue therapy be granted until the measures are contraindicated. If (b) the family prohibits continuation of therapy and the committee agrees, the committee should advise that this form of therapy (other than appropriate provision of fluids, nutrition, and medication) be discontinued. If, however, (c) the Infant Care Review Committee disagrees with the family’s prohibition of continued therapy, then it shall recommend that the conflict be adjudicated or reported to the state Child Protective Services Agencies and at the same time take all steps to continue therapy pending a decision. This procedure should also be followed if the family and the treating physician agree to discontinue life-sustaining measures and the committee does not share this decision. Overall, in addition to the general criteria for ethics consultation, the explanations concentrate exclusively on the legal, medical and social framework conditions in the

170

Cf. Gostin (1985), pp. 67–70. Cf. Department of Health and Human Services (1985), p. 14894. 172 Department of Health and Human Services (1985), p. 14894. 173 Cf. Fost (1992), p. 289. 171

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The Presidential Commission: A Recommendation on Ethical Pragmatics (1983)

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clinical care of “disabled infants with life-threatening conditions.”174 With the Model Guidelines, the Department of Health and Human Services placed clinical ethics consultation in a paradoxical situation of “Ethical Adviser or Legal Watchdog.”175 On the one hand, it was supposed to assume a purely advisory role in the internal clinical treatment processes, but on the other hand it was supposed to cooperate closely with the state authorities in all its main tasks, even reporting to the external authorities in cases of suspected medical malpractice.176 The idea that the committee should archive all weighing processes and recommendations and that “they should be made available to appropriate government agencies”177—a request that was rejected as illegal in the previous HHS guidelines—also proved to be problematic.178 This “quasi-authoritative” function of the clinical ethics committees was subsequently unable to gain further acceptance. On the other hand, there were individual efforts to secure their practice on a legal basis. For example, 2 years later (1987), the state of Maryland made a patient care advisory committee mandatory for all publicly recognized health care facilities,179 but emphasized their internal advisory mandate. This first legal directive to introduce clinical ethics consultation had such an impact that on the federal level, Senators John C. Danforth and Daniel Patrick Moynihan introduced the “Patient Self-Determination Act of 1989”, which provides, among other things, that every Medicare- and Medicaid-funded facility must implement an ethics program180 which helps in ethically difficult cases. A final step within the third stage has yet to be taken: In 1988, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), the central accreditation agency of the U.S. health care system, included criteria for ethics consultation for health care facilities in its review catalog. This step is of considerable importance for the acceptance of clinical ethics consultation, since the successful completion of accreditation is a prerequisite for the use of state Medicare or Medicaid benefits. In 1992, the Task Force on Accreditation recommended that every health care facility have access to a “bioethics review committee.”181 Accordingly, the 1992 Accreditation Manual for Hospitals refers to “Ethical Issues” in two places. In the chapter on nursing care, nursing leadership is required to develop hospital-wide care programs, policies, and processes that describe how nursing care assesses, evaluates, and meets the needs of patients. This also applies to ethical issues: “Nursing staff members have a defined mechanism for addressing ethical

174

Department of Health and Human Services (1985), p. 14894. Weir (1987), pp. 105–107. 176 Cf. Capron (1986), p. 17. 177 Department of Health and Human Services (1985), p. 14894. 178 Therefore, the Model Guidelines add: “or upon court order, or as otherwise required by law,” Department of Health and Human Services (1985), p. 14894. 179 Cf. Hoffmann (1991), p. 748. 180 Cf. Fletcher (1990), p. 5. 181 Cf. Fretwell Wilson (1998), p. 358. Baker (2013), p. 304. 175

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issues in patient care. (. . .) When the hospital has an ethics committee or other defined structures for addressing ethical issues in patient care, nursing staff members participate.”182 The crucial passage, however, is found in the chapter on patients’ rights. There, the Joint Commission requires hospitals to have policies and processes in place that protect the rights listed later and support their exercise. This includes the right of the patient or their representative to participate in the consideration of ethical issues that arise in the provision of care. The organization has in place a mechanism(s) for the consideration of ethical issues arising in the care of patients and to provide education for caregivers and patients on ethical issues in health care.183

Since this now addressed all clinical areas of direct patient care and all professional groups working there, the Joint Commission on Accreditation of Healthcare Organizations, with its Accreditation Manual for Hospitals of 1992, made a major contribution to establishing clinical ethics consultation as a standard service in US hospital care.184

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arcessitu Instituti Genetici “Gregorio Mendel”, Summus Pontifex propositis quaesitis de “reanimatione” respondit. Acta Apostolicae Sedis, 49, 1027–1033. Placencia, F. X., & McCullough, L. B. (2011). The history of ethical decision making in neonatal intensive care. Journal of Intensive Care Medicine, 26(6), 368–384. Pless, J. E. (1983). The story of Baby Doe. New England Journal of Medicine, 309(11), 664. Pope, T. M. (2009). Multi-institutional healthcare ethics committees: The procedurally fair internal dispute resolution mechanism. Campbell Law Review, 31, 257–332. Pozgar, G. D. (2013). Legal and ethical issues for health professionals (3rd ed.). President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. (1982). Making health care decisions: The ethical and legal implications of informed consent in the patient-practitioner relationship. Volume One: Report. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. (1983a). Deciding to forego life-sustaining treatment. A report on the ethical, medical, and legal issues in treatment decisions. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. (1983b). Summing up. Final report on studies of the ethical and legal problems in medicine and biomedical and behavioral research. Prip, W., & Moretti, A. (1997). Medical futility: A legal perspective. In M. B. Zucker & H. D. Zucker (Eds.), Futility and the evaluation of life-sustaining interventions (pp. 136–154). Purtilo, R. B. (1984). Ethics consultation in the hospital. New England Journal of Medicine, 311(15), 983–986. Quinlan, J., Quinlan, J., & Battelle, P. (1977). Karen Ann: The Quinlans tell their story. Quinlan, J. D. (2005). My joy, my sorrow: Karen Ann’s mother remembers. Rabkin, M. T., Gillerman, G., & Rice, N. R. (1976). Orders not to resuscitate. New England Journal of Medicine, 295(7), 364–366. Rachels, J. (1975). Active and passive Euthanasia. New England Journal of Medicine, 292, 78–80. Reich, W. T. (1994). The word “Bioethics”: Its birth and the legacies of those who shaped it. Kennedy Institute of Ethics Journal, 4(4), 319–355. Reich, W. T. (2013). A corrective for bioethical malaise: Revisiting the cultural influences that shaped the identity of bioethics. In J. R. Garrett, F. Jotterand, & D. C. Ralston (Eds.), The development of bioethics in the United States (pp. 79–100). Reiser, S. J. (1986). Survival at what cost? Origins and effects of the modern controversy on treating severely handicapped newborns. Journal of Health Politics, Policy and Law, 11(2), 199–212. Riga, P. J. (1984). The care of defective neonates, ethics committees and federal intervention. Linacre Quarterly, 51(3), 255–276. Robertson, J. A. (1984). Ethics committees in hospitals: Alternative structures and responsibilities. Connecticut Medicine, 48(7), 441–444. Robertson, J. A. (1986). Legal aspects of withholding treatment from handicapped newborns: Substantive issues. Journal of Health Politics, Policy and Law, 11(2), 215–230. Robinson, D. N. (Ed.). (1975). In the matter of Karen Quinlan, Vol. I. The complete legal briefs, court proceedings, and decision in the Superior Court of New Jersey. Robinson, D. N. (Ed.). (1976). In the matter of Karen Quinlan, Vol. II. The complete briefs, oral arguments, and opinion in the New Jersey Supreme Court. Roddey Holder, A. (1985). Legal issues in pediatrics and adolescent medicine (2nd ed.). Rosenblum, V. G., & Grant, E. R. (1986). The legal response to babies Doe: An analytical prognosis. Issues in Law and Medicine, 1, 391–404. Rosner, F. (1985). Hospital medical ethics committees: A review of their development. Journal of the American Medical Association, 253(18), 2693–2697. Ross, J. W., Bayley, C., Michel, V., et al. (1986) Handbook for hospital ethics committees. Rothman, D. J. (2003). Strangers at the bedside. A history of how law and bioethics transformed medical decision making.

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Sanders, D., & Dukeminier, J. (1977). Medical advance and legal lag: Hemodialysis and kidney transplantation. In S. J. Reiser, A. J. Dyck, & W. J. Curran (Eds.), Ethics in medicine: Historical perspectives and contemporary concerns (pp. 606–612). Sarno, J. J. (1987). Born to live or born to die: The handicapped newborn in New Jersey. Seton Hall Legislative Journal, 11(1), 201–222. Savage, D. (1980). After Quinlan and Saikewicz: Death, life and god committees. Critical Care Medicine, 8, 87–93. Shapiro, R. S., & Barthel, R. (1986). Infant care review committees: An effective approach to the Baby Doe dilemma? Hastings Law Journal, 37(5), 827–862. Sherman, S. R. (1984). Ethical implications of clinical judgment (the role of the Hospital Bioethics Committee). Connecticut Medicine, 48(2), 131–132. Siegler, M. (1978). A legacy of Osler. Teaching clinical ethics at the bedside. Journal of the American Medical Association, 239(10), 951–956. Silverman, B. D. (2012). Physician behavior and bedside manners: The influence of William Osler and The Johns Hopkins School of Medicine. Baylor University Medical Center Proceedings, 25(1), 58–61. Smith, D. A. (1986a). The law and intensive care. The role of the courts in the ethical decisionmaking process. Critical Care Clinics, 2(1), 123–132. Smith, G. P. (1984). Quality of life, sanctity of creation: Palliative or apotheosis? Nebraska Law Review, 63(4), 709–740. Smith, S. R. (1982). Life and death decisions in the nursery: Standards and procedures for withholding lifesaving treatment from infants. New York Law School Review, 27, 1125–1186. Smith, S. R. (1986b). Disabled newborns and the Federal child abuse amendments: Tenuous protection. The Hastings Law Journal, 37, 765–825. Snow, C. P. (1959). The two cultures and the scientific revolution. Spielman, B. J. (2007). Bioethics in law. Steinbock, B. (1984). Baby Jane Doe in the courts. The Hastings Center Report, 14(1), 13–19. Stevens, T. M. L. (2000). Bioethics in America. Origins and cultural politics. Stonecipher, M. (2006). The evolution of surrogates’ right to terminate life-sustaining treatment. Virtual Mentor, 8(9), 593–598. Strain, J. E. (1983). The American Academy of Pediatrics comments on the “Baby Doe II” Regulations. The New England Journal of Medicine, 309(7), 443–444. Sullivan, S. M. (2007). The development and nature of the ordinary/extraordinary means distinction in the Roman Catholic tradition. Bioethics, 21(7), 386–397. Superintendent of Belchertown State School v. Saikewicz. (1998). In A. R. Jonsen, R. M. Veatch, & L. Walters (Eds.), Source book in bioethics. A documentary history (pp. 153–158). Swazey, J. P. (1980). To treat or not to treat: The search for principled ethics. In V. Abernethy (Ed.), Frontiers in medical ethics. Applications in a medical setting (pp. 139–155). Sweeney, R. H. (1987). Past, present, and future of hospital ethics committees. Delaware Medical Journal, 181–184. Tapper, E. B. (2013). Consults for conflict. The history of ethics consultation. Baylor University Medical Center Proceedings, 26(4), 417–422. Teel, K. (1975). The physician’s dilemma: A doctor’s view: What law should be. Baylor Law Review, 27, 6–9. Todres, I. D. (1985). “Infant Doe”. Federal regulations of the newborn nursery are born. In A. Milunsky & G. J. Annas (Eds.), Genetics and the law-III (pp. 253–257). Vaughn Switzer, J. (2003). Disabled rights: American Disability Policy and the fight for equality. Veatch, R. M. (1981). A theory of medical ethics. Veatch, R. M. (1977). Hospital ethics committees: Is there a role? Hastings Center Report, 7(3), 22–25. Veatch, R. M. (1979). Choosing not to prolong dying. In J. M. Humber & R. F. Almeder (Eds.), Biomedical ethics and the law (2nd ed., pp. 517–524).

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Veatch, R. M. (1995). The definition of death: Problems for public policy. In H. Wass & R. A. Neimeyer (Eds.), Dying: Facing the facts (3rd ed., pp. 405–432). Veatch, R. M. (2013). The development of bioethics: Bringing physician ethics into the moral consensus. In J. R. Garrett, F. Jotterand, & D. C. Ralston (Eds.), The development of bioethics in the United States (pp. 163–177). Viafora, C. (2005). The ethical function in the health care institutions. Clinical ethics committees. In C. Viafora (Ed.), Clinical bioethics. A search for the foundations (pp. 181–192). Walker, C. H. (1988). ... officiously to keep alive. Archives of Disease in Childhood, 63, 560–564. Walters, L. (1989). Religion and the renaissance of medical ethics in the United States: 1965-1975. In V. Eid, A. Elsässer, & G. W. Hunold (Eds.), Moraltheologisches Jahrbuch 1. Bioethische Probleme (pp. 99–114). Weir, R. F. (1987). Pediatric ethics committees: Ethical advisers or legal watchdogs? Law, Medicine and Health Care, 15(3), 99–109. Wildes, K. W. (1996). Ordinary and extraordinary means and the quality of life. Theological Studies, 57(3), 500–512. Winkler, E. (1985). Decisions about life and death: Assessing the Law Reform Commission and the Presidential Commission Reports. Journal of Medical Humanities and Bioethics, 6(2), 74–89. Wolf, S. M. (1986). Ethics committees: In the courts. Hastings Center Report, 16(3), 12–15. Younger, S. J., Lackson, D. L., Coulton, C., et al. (1983). A National Survey of Hospital Ethics Committees. In President’s Commission for the study of ethical problems in medicine and biomedical and behavioral research, deciding to forego life-sustaining treatment. A report on the ethical, medical, and legal issues in treatment decisions (pp. 443–449).

Chapter 3

Balance After Three Stages

What began with the barely four-page essay “The Physician’s Dilemma: A Doctor’s View: What Law Should Be” by pediatrician Karen Teel, achieved widespread acceptance in the U.S. health care system through the stages shown by the end of the 1980s. This process eventually led to the adoption of clinical ethics consultation into the accreditation criteria of the Joint Commission on Accreditation of Healthcare Organizations. By 2007, 81% of U.S. general hospitals and all hospitals over 400 beds had clinical ethics consultation.1 This young form of consultation has been able to assert itself in the long term as an adaptable concept for all clinical care areas. While the recommendations on ethics consultation of the President’s Commission were written for decision-making in treatment situations of “incapacitated individuals”2 and the “Model Guidelines for Health Care Providers to Establish Infant Care Review Committees” of the HHS for therapy conflicts in “disabled infants with life-threatening conditions”3, the guidelines of the Joint Commission focused on direct patient care in all clinical disciplines. If one sums up the entire path along the three stages, considers the interim assessments at the end of each stage, and asks about the characteristics of an understanding of clinical ethics consultation that emerges there, the following can be stated: (a) Practice as the initial situation: Clinical ethics consultation develops from the outset as a concept for the practice of patient care. It responds to conflict-ridden decision-making situations in the face of ethical uncertainty on the part of those involved.4 What was referred to in Sect. 2.1.2, in the Quinlan judgement with the

1

Cf. Fox et al. (2007), p. 15. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983), p. 160. 3 Department of Health and Human Services (1985), p. 14894. 4 Cf. Weir (1992), pp. 1–3. Angell (1983), p. 660. 2

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expression “In the real world”5, in the statement of the American Academy of Pediatrics with “an institutionally approved group such as a bioethics review committee”6, or in the report of the Presidential Commission with “they are closer to the treatment setting”7, expresses the close interlocking with clinical care practice as a source of ethical dilemmas. Related to this is the criticism raised in the course of the Babies Doe discussion by medical associations against the outlined tendencies of the HHS in favor of a regulatory form of ethical decision making. Hematologist and medical ethicist Fred Rosner summarized this dispute over understanding medical ethics judgment between government oversight and clinical treatment responsibility at the time by saying: “Hospital ethics committees are emerging as an alternative to federal involvement in decisions about treatment for seriously ill newborns.”8And former Chairman of the President’s Commission Morris B. Abram, along with medical jurist Susan M. Wolf, emphasized: “Any centralization of substantial power over medical ethics is suspect.”9 (b) Multidisciplinarity as a characteristic: The justices of the Supreme Court of New Jersey spoke of “the value of additional views and diverse knowledge”10, the Presidential Commission of “a diverse membership (. . .) to share perspectives and views, which can lead to better decisions”11 and the Model Guidelines explicitly of the “multi-disciplinary approach”12. The multi- or interdisciplinary perspective already characterized the composition of the prognosis committees, but only emerged over time as a core element of clinical ethics consultation. It found its most far-reaching expression in the criteria of the Joint Commission. The reasons for the judgement in the case of Karen Ann Quinlan had described the possibility of “screening out” in the sense of a due diligence and protective function in controversial treatment processes, which could be assumed by clinical ethics consultation. In addition, the “value of additional views and diverse knowledge”13 was presented as a necessary extension to a multiperspective factual argumentation in order to break through the professional and subjective value-related restrictions. This task of clinical ethics consultation has not changed since then.14

5

Robinson (1976), p. 312. American Academy of Pediatrics – Committee on Bioethics (1983), p. 566. 7 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983), p. 168. 8 Rosner (1985), p. 2696. 9 Abram and Wolf (1984), p. 627. 10 Robinson (1976), p. 312. 11 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983), p. 163. 12 Department of Health and Human Services (1985), p. 14894. 13 Robinson (1976), p. 312. 14 Cf. Jansky et al. (2013), p. 779. Thomasma (1985), pp. 206 and 207. 6

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(c) Consultation as empowerment: “The focal point of the decision should be the prognosis”15 was the proposal in the first stage to Karen Ann Quinlan. The transfer of the idea of clinical ethics consultation to the form of “Infant Care Ethics Committees”—after the revision of the HHS guidelines, the “Child Abuse Law” and the recommendations of the American Academy of Pediatrics— displaced the mandate of prognosis control and replaced it with the “advisory role”—this was the result of the second stage. The President’s Commission ultimately held that “one of the central functions of ethics committees may be to advise patients, families, and practitioners.”16 Although the Model Guidelines formulated a paradoxical description of the tasks of clinical ethics consultation between “ethical adviser” and “legal watchdog”17, the basic understanding of ethics consultation ultimately prevailed in all three main task areas of clinical ethics committees. Thus, it serves to enable ethically reasoned judgment and decision-making in the field: “Some ethicists have strongly argued that HECs should not serve as professional ethics review boards, i.e., as substitutes for legal or judicial review, or as decisionmakers in biomedical ethics’ dilemmas.”18 (d) The judgment process as an ethical formal principle: The neonatologist Carol Lynn Berseth of the Mayo Clinics commented on the ethical understanding of ethics consultation with the remark: “The establishment of a more formal method of dealing with ethical problems may offer parents and physicians more support in making ethical decisions”.19 The reluctance to adopt principled theories of ethics while emphasizing a stringent decision-making process as an ethical formal principle represents another feature. The Model Guidelines also chose ambivalent formulations on this aspect, which on the one hand emphasized the free deliberative process, and on the other attempted to introduce a variety of criteria and definitions of terms. The New Jersey judges already understood the expression “common moral judgment of the community at large”20 in such a way that the process of ethical judgment could best ensure a generalizable moral judgment by including several perspectives. Tellingly, the subtitle of the second “Baby Doe Regulation” from 1984, in which HHS promoted the Infant Care Review Committee, reads as follows: “Procedures and Guidelines Relating to Health Care for Handicapped Infants.”21 The 1982 President’s Commission Report had also spoken of “Institutional Ethics

15

Robinson (1976), p. 313. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1983), p. 166. 17 Weir (1987), pp. 105–107. 18 Iserson et al. (1989), p. 74. 19 Berseth (1983), p. 429. 20 Robinson (1976), p. 308. 21 Cf. N. N. (1992), p. 318. Fost (1992), pp. 72 and 73. 16

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Committees” under the heading “Procedures for Surrogate Decisionmaking.”22 The consistent emphasis on the decision-making process as a formal ethical principle is therefore a striking aspect, since the academic discussion on the “Principles of Biomedical Ethics”—as will be shown—was also conducted intensively at almost the same time as the three stages in the development of clinical ethics consultation. For the early understanding of ethics in ethics consultation, it can therefore be said: “The last important ethical component of HEC ethics is (. . .) procedural.”23

References Abram, M. B., & Wolf, S. M. (1984). Public involvement in medical ethics: A model for government action. The New England Journal of Medicine, 310, 627–632. American Academy of Pediatrics – Committee on Bioethics. (1983). Treatment of critically ill newborns. Pediatrics, 72(4), 565–566. Angell, M. (1983). Handicapped children: Baby Doe and Uncle Sam. The New England Journal of Medicine, 309, 659–661. Berseth, C. L. (1983). A neonatologist looks at the Baby Doe rule: Ethical decisions by Edict. Pediatrics, 72, 428–429. Department of Health and Human Services. (1985). Services and treatment for disabled infants. Model guidelines for health care providers to establish infant care review committees. Federal Register, 50(72), 14878–14901. Drane, J. F. (1994). Clinical bioethics. Theory and practice in medical ethical decision making. Fost, N. (1992). Infant care committees in the aftermath of baby Doe. In A. L. Caplan, R. H. Blank, & J. C. Merrick (Eds.), Compelled compassion. Government intervention in the treatment of critically ill newborns (pp. 285–297). Fox, E., Myers, S., & Pearlman, R. A. (2007). Ethics consultation in United States hospitals: A national survey. The American Journal of Bioethics, 7(2), 13–25. Iserson, K. V., Goffin, F. B., & Markham, J. J. (1989). The future functions of hospital ethics committees. HEC Forum, 1, 63–76. Jansky, M., Marx, G., Nauck, F., & Alt-Epping, B. (2013). Physicians’ and nurses’ expectations and objections toward a clinical ethics committee. Nursing Ethics, 20(7), 771–783. N. N. (1992). Appendix. In A. L. Caplan, R. H. Blank, & J. C. Merrick (Eds.), Compelled compassion. Government intervention in the treatment of critically ill newborns (pp. 317–320). President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. (1982). Making health care decisions: The ethical and legal implications of informed consent in the patient-practitioner relationship. Volume One: Report. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. (1983). Deciding to forego life-sustaining treatment. A report on the ethical, medical, and legal issues in treatment decisions. Robinson, D. N. (Ed.). (1976). In the matter of Karen Quinlan, Vol. II. The complete briefs, oral arguments, and opinion in the New Jersey Supreme Court.

22 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1982), p. 6. 23 Drane (1994), p. 47.

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Rosner, F. (1985). Hospital medical ethics committees: A review of their development. Journal of the American Medical Association, 253(18), 2693–2697. Thomasma, D. C. (1985). Hospital ethics committees and hospital policy. Quality Review Bulletin, 11, 204–209. Weir, R. F. (1987). Pediatric ethics committees: Ethical advisers or legal watchdogs? Law, Medicine and Health Care, 15(3), 99–109. Weir, R. F. (1992). Life-and-death decisions in the midst of uncertainty. In A. L. Caplan, R. H. Blank, & J. C. Merrick (Eds.), Compelled compassion. Government intervention in the treatment of critically ill newborns (pp. 1–33).

Part II

A Theory of Concrete Judgment: The Influence of Pragmatism on the Idea of Clinical Ethics Consultation

Chapter 4

Basic Features of an Ethical Theory of Classical Pragmatism

This part is first devoted to the main features of an ethical theory of classical pragmatism. It attempts to identify the most striking argumentations in the works of Charles Sanders Peirce, William James and John Dewey. Afterwards, the focus is on the first systematic elaborations on the tasks of clinical ethics consultation. With them, the previous indications of a reception of pragmatic thinking in the early theoretical models of clinical ethics consultation—first in the basic and later in the applied theories—become clear. In the end, the study summarizes the influences of classical, US-American pragmatism on the understanding of clinical ethics consultation in its early years on the basis of three fields of evidence.

4.1

Review of Classical Pragmatism

In his genealogy of pragmatism, Cornel West points out that although American pragmatism had experienced its first flowering in the decades at the end of the nineteenth century, few receptions can be found in professional philosophical circles in the middle of the twentieth century.1 Looking back on this period, Richard Rorty also writes: “Indeed, for decades Peirce remained largely unread.”2 West and Rorty argue that the dominance of two philosophical directions was responsible for this: With the analytic theory of principles of Bertrand Russell and Alfred North Whitehead, a broad reception and further development of the questions on symbolic logic began, in which the category of subjective experience and its ethical management did not find an adequate place. Moreover, the theories of logical empiricism by Rudolf Carnap, Hans Reichenbach or Alfred Tarski would have had an enormous

1 2

Cf. West (1989), p. 182. Rorty (1998), p. 634.

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influence on the young generation of philosophers of the post-war period.3 Initially, there was little overlap between the ideals of precision, logic, and clarity and pragmatism, which was experimental and based on intuitive intellectual creativity.4 It was Willard Van Orman Quine’s essay on “Two Dogmas of Empiricism” in 1951 that revived the debates on pragmatism. In it, Quine rejects both the gap between analytic and synthetic truths presupposed in modern empiricism and the reductionist experiential reference of stated meanings. In six analytical steps on the shortcomings of these two dogmas, Quine concludes that the future truth-claim of propositions can in principle only be predicted in the light of past experience. This means that, for him, all science must be seen as “a continuation of everyday thinking” in order to give the “flow of experience a manageable structure.”5 Epistemologically, Quine thus performs an “approximation to pragmatism”,6 which helps to measure the empiricist truth theory of propositions “in terms of the degree to which they are conducive to our dealing with sense experience.”7 “The Quinean turn”,8 which this contribution accomplished in the US philosophical landscape, consisted mainly in pointing out the differences between the pragmatic concepts and logical empiricism, but understood both directions as currents of an Anglo-American, post-Humean empiricism, characterized mainly by a behaviorist understanding of language as an understanding-oriented articulation of sensory, semantically processed stimuli, and by an interactionist-constructivist understanding of truth.9 Although Willard Van Orman Quine later repeatedly criticized all interpretations of his essay as a revival of pragmatist thought10 or wanted to see him as “the last pragmatist”,11 it became the “turning point in the fortunes of pragmatism.”12 Ludwig Wittgenstein’s “Philosophical Investigations” (1953), published 2 years later, and Wilfrid Sellars’ “Empiricism and the Philosophy of Mind” (1956), together with Thomas Kuhn’s “The Structure of Scientific Revolutions” (1962), in their positivism-critical argumentations, also contributed to the fact that attempts at synthesization between pragmatic and analytic approaches could be found visibly.13

3

Cf. Richardson (2003), pp. 2–6. Cf. Reichenbach (1971), pp. 190–192. Putnam (1962), pp. 250 and 251. 5 Quine (1979), p. 49. 6 Quine (1979), p. 27. 7 Quine (1979), p. 49. 8 Pihlström (2015), p. 19. 9 Cf. Quine (1981), p. 37. Gibson (2009), pp. 104 and 105. 10 Cf. Murphey (2012), p. 195. 11 Gellner (1979), p. 199. Quine (1985), p. 415. 12 Misak (2013), p. 199. 13 Cf. Rorty (1982a), p. 21. Apel (1970), p. 107. 4

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In the midst of these powerful argumentative impulses, the “second life”, the “revival” of pragmatism began.14 It was a time of rediscovery of classical pragmatism and not yet of neopragmatic reconceptualization.15 This can be seen, among other things, in the large number of well-known publications: Murray G. Murphey, historian at the University of Pennsylvania, reconstructed “The Development of Peirce’s Philosophy” (1961) in a detailed source analysis. In 1965/1966 the three great thinkers of pragmatism were included in the book series “Great American Thinkers”. There, published by the Washington Square Press, appeared in quick succession Thomas S. Knight’s book on Charles Peirce, Richard J. Bernstein’s on John Dewey, and Edward C. Moore’s on William James. Richard J. Bernstein had already compiled selected writings of John Dewey in his book On Experience, Nature and Freedom (1960) and provided a detailed introduction to the works. Alfred J. Ayer, then teaching at Oxford, wrote his study of the philosophy of Charles Sanders Peirce and William James under the title “The Origins of Pragmatism” (1968). Other comprehensive studies, such as “Meaning and Action. A Critical History of Pragmatism” (by Horace S. Thayer 1968) or “The Pragmatic Movement in American Philosophy” (by Charles W. Morris 1970) attempted to structure and interpret the pragmatic paths of thought from their beginnings. It is also striking that within a few years several editions of his works were brought onto the American book market: After John Dewey’s Democracy and Education: An Introduction to the Philosophy of Education had already gone through 30 editions less than a decade after his death, further editions were published by various publishers in the 1960s. In 1964, the “Selected Writings” on George Herbert Mead appeared. The eight-volume “Collected Papers” of Charles Sanders Peirce were newly accessible (1965–1967). In addition, the same author’s “Selected Writings” (1966) were compiled, and Amélie Oksenberg Rorty, then wife of Richard Rorty, conceived the anthology “Pragmatic Philosophy”. In 1967, John J. McDermott brought out “The Writings of William James: A Comprehensive Edition.” In this year, the Center for John Dewey Studies, founded in 1961 at Southern Illinois University Carbondale, began editing the “Collected Works of John Dewey” in 37 volumes. At the same time as efforts were being made to make the original texts known again, the amount of secondary literature16 on this “philosophical movement which is (. . .) a distinctly American product”17 grew.

14

Cf. Margolis (2002), p. 25. Posner (2003), p. 35. Simonson (2001), p. 16. Putnam (1999), pp. 42 and 43. 15 Cf. Allen (2000), p. 135. 16 A selection on this: Murphey (1961). Moore (1961). Roth (1962). Smith (1963). Scheffler (1965). Wirth (1966). Gallie (1966). 17 Ayer (1968), p. 13.

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Ethical Understanding of Classical Pragmatism

“‘Pragmatism’ is a vague, ambiguous, and overworked word.”18 With these words Richard Rorty begins his essay “Pragmatism, Relativism, and Irrationalism” at the end of the 1970s. He fears a conceptual dilution by the common talk of pragmatic action and counters this with a concern to uncover and defend the characteristics of classical pragmatism anew. In one passage he refers to the latter’s theory of ethical thought, writing that its fundamental anti-essentialism also determines its ideas of good and just action. Moreover, for early pragmatism there was no epistemological distinction between the truth of what ought to be and the truth of what is; also none between facts and values, and none between morality and science. “For the pragmatists, the pattern of all inquiry – scientific as well as moral – is deliberation concerning the relative attractions of various concrete alternatives.”19 Taking up Richard Rorty’s hint, the ethical thinking of classical pragmatism will be examined in the following with regard to the question posed in this thesis.20 The fact that in the following the corresponding drafts of Charles Sanders Peirce, William James and John Dewey are brought into focus serves as an exemplary concentration. The reception in the contexts of origin of clinical ethics consultation can be shown most clearly in their drafts. Despite all the differences in the approaches of the three most influential classical pragmatists, it can be stated that pragmatism has, since its beginnings, articulated an interest that is uniform in its basic features and that guides action.21 Since pragmatism sees the practice of action as the cumulative point of all thought and demands that scientifically responsible statements be made about the nature of the practice—that it stands before the claim that statements about that nature are true—it designs, by being formulated, itself a normative theory of action. The beginning of this was made by Charles Sanders Peirce.

4.2.1

Fragments of an Ethical Theory in Charles Sanders Peirce and William James

Charles Sanders Peirce (1839–1914), son of the astronomer and mathematician Benjamin Peirce, grew up in the educated middle-class milieu of the American Northeast. After receiving a bachelor’s degree from Harvard College at the age of 20, he transferred to the Scientific School there to study chemistry. In addition to his many years of work for the United States Coast and Geodetic Survey, several 18

Rorty (1982b), p. 160. Rorty (1982b), p. 164. 20 The differences between the authors and their phases of thought have been elaborated elsewhere. For example, in the second part of the aforementioned work by, Thayer (1968), pp. 79–268. Or in: Oppenheim (2005), pp. 395–433. 21 Cf. Ormerod (2006), p. 893. 19

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research stays in Europe (Sicily, Germany, France), a teaching position at Harvard in philosophy, and a part-time position in logic at Johns Hopkins University in Baltimore, his life has been shaped by a wide variety of interests in writing. According to an estimate by Edward C. Moore, the publication of his complete works would comprise over 100 volumes.22 Peirce was a complex thinker. His interest extended over a vast range of topics: he did pioneering work in the fields of logic and mathematics; he was a trained chemist; and keenly followed the developments in biology and physics. (. . .) He was interested in the history of philosophy. He boasted of knowing a good part of Kant’s first Critique by heart. Moreover, he was interested in practical and ethical issues, and he contributed to the theory of probability. (. . .) He was also a restless thinker.23

The restlessness in his thinking and writing did not disappear toward the end of his life. In 1903, the same year that he delivered his pragmatism lectures at Harvard and his logic lectures at the Lowell Institute in Boston, he began an 8-year correspondence with the self-taught philosopher Victoria Lady Welby. This began after Peirce published a review of her book “What is Meaning?”. The letters deal mainly with ontological, scientific-theoretical and linguistic-philosophical arguments.24 On December 23, 1908, Peirce interprets various understandings of the term “faith” in light of a pragmatically-scientifically accountable theory of truth. This leads him to the question of whether a reasonably directed reality should be assumed. Peirce explains to Lady Welby the background of his phenomenological reception of modality from Kant’s theory of categories: the whole of reality, the universe of reality appears, according to Peirce, in three “modalities of being”:25 (1) as a universe of the sensuous effects of objects when they can be thought of without reference to anything else, as it were, as being perceived for themselves, (2) as a universe of what connects the objects and of the experiential knowledge of such connective phenomena, and (3) as a universe of the lawful changes of the objects which can be inferred by logical reasoning through the experiential knowledge. In his remarks on understanding what is to be called logical, he notes: The Truth is that an inference is ‘logical,’ if, and only if, it is grounded by a habit that would in the long run lead to the truth. (. . .) Then I trust you do not mean to lend any countenance to notions of logic that conflict with this. It is a part of our duty to frown sternly upon immoral principles; and logic is only an application of morality. Is it not?26

Truth, then, for Peirce, consists in the fact that an inference is logical; but only if it is sustained by a habit that leads to truth. In other words, truth is not the result of a single logical conclusion, but persistent logical reasoning leads towards the ideal of truth. Logical reasoning plays a role here in that the truth of statements cannot 22

Cf. Habermas (1991), p. 9. Debrock (1998), pp. 15 and 16. 24 Cf. Deledalle (2000), pp. 87–99. Schmitz (1985), pp. cxlviii–clviii. Deledalle (1992), pp. 297 and 298. 25 Cf. Peirce (1965e), pp. 305–313. 26 Peirce (1966a), pp. 405 and 406. Cf. Apel (2003), p. 175. 23

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contradict logical reasoning. Those who do not want to refuse a truthful approach to reality and enter into contradictions, but take the path of wanting to express their statements about the world truthfully, take on the moral duty of looking critically at immoral principles (those not committed to truth). In this respect, logic is but an application of morality. Peirce does not elaborate on the implied connection between logic and ethics in this letter. But he does take up the subject again 3 months later, in the letter of March 14, 1909. After emphasizing the differences with Welby’s theory of signs in “What is Meaning?” he swings over to the connection between ethics and logic, introducing with the sentence: I regard Logic as the Ethics of the Intellect – that is, in the sense in which Ethics is the science of the method of bringing Self-Control to bear to gain our Satisfactions.27

In this passage, Peirce presents logic as the ethics of the intellect. Ethics is thus the science of the method of exercising self-control in order to obtain the satisfaction of needs. This self-control to reasonably satisfy our needs in the long run, he says, is the expression of the freely formed will.28 Freedom of the will, however, can only be spoken of in the sense in which a person, after careful consideration, concludes as to what they should desire in concrete terms in order to make their life beautiful and admirable. The freedom of the will is therefore the freedom to want beauty, as expressed in the concept of kalokagathia.29 In this letter, too, no further explanation follows as to how Peirce understands this connection more precisely. These two passages are intended to give an impression of how difficultly transparent, at times erratic and abrupt some argumentations in the work of Charles Sanders Peirce appear at first glance,30 and how presupposed by earlier work the further developments of his theories in later years must be read.31 In order to better understand what has been said, therefore, the thematic embedding of what has been written will be reconstructed. It has already been pointed out that, since Peirce never presented an independently elaborated systematics of his ethics,32 his theory of ethics can only be understood as part of his view of the normative sciences, which was strikingly developed in his later work.33 The epistemological lines of argumentation from the early texts “How to Make Our Ideas Clear” and “The Fixation of Belief” are taken up and developed for this purpose. Peirce is fundamentally convinced that the real objects of the external world exist in their properties independently of the human conception of them that seeks to grasp them and the human conceptuality that signifies them. The human faculty of cognition has no immediate access to the objects of the external world. If man

27

Peirce (1966a), p. 415. Cf. Hookway (2012), p. 64. Petry (1992), pp. 683–687. 29 Cf. Skowroński (2009), p. 53. 30 Cf. Rorty (2014), p. 18, footnote 5. 31 Cf. Debrock (1998), p. 16. 32 Cf. Liszka (2012), p. 46. 33 Cf. Hooker (2008), p. 579. Potter (1965), p. 6. 28

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wants to know objects, he knows them by the effects they leave in their respective contexts. The sum of the effects to be signified then comprises the meaning of the concept. This is the starting point of what Charles Sanders Peirce, from 1900 onwards, calls the “pragmatic maxim” and to which pragmatic thinking is to be oriented.34 In one of the first and best-known variants from “How to Make Our Ideas Clear”, the maxim reads: Consider what effects, that might conceivably have practical bearings, we conceive the object of our conception to have. Then, our conception of these effects is the whole of our conception of the object.35

Pragmatic thinking demands a consideration of which effects can be attributed to the object of the concept. By forming the concept in this way, the whole of the concept of the object is ultimately described by all the concepts of the effects. But since man in his spatiotemporal existence has no access to a self-sufficient understanding of a singular effect of objects that could be interpreted detached from all other effects of objects, an understanding of effects is formed in comparing effects. This comparison of effects occurs in the process of human understanding—always mediated by signs (image, sound, language, etc.).36 The signs refer to the comparability of effects and through this the human mind intuitively checks its previously made experiences with the applicability of learned signs to a new situation. Each new constellation, each new situation, in turn, reveals the limitations of learned signs and their possible combinations.37 If the individual now attempts to overcome this limitation of his use of signs, he has at his disposal the intersubjective communication with other uses of signs by his fellow human beings and their traditional forms of language.38 It enables him not to remain in subjective uncertainty about the usefulness of his learned signs, but to check the correctness of his use of signs. In order for this comparison to be logically comprehended by all sign-users, a method must be developed that conveys the impression that the respective sign-use is true in comparison to the intersubjectively equally designated, perceptible effects of the objects, i.e. that it can also be used to describe comparable object-effects for future uses.39 For this purpose, Peirce’s epistemology demands a method of truth-finding that is intersubjectively agreeable: ‘Truth’ is explicated as the property of propositions that prove reliable in every case, that is, would never lead to surprising results if we were to act upon them. And ‘reality’, according to Peirce, is precisely that which belongs to the states of affairs (things, regularities, etc.) which are represented in true propositions.40

34

Cf. Misak (2010), pp. 78–82. Peirce (1965d), p. 258. Cf. Olshewsky (1983), pp. 199 and 200. Smith (1977), p. 110. Apel (1967), pp. 145–148. 36 Cf. Silverman (1983), pp. 19–21. 37 Cf. Mullin (2007), p. 137. 38 Cf. de Waal (2012), p. 91. 39 Cf. Singer (1985), pp. 402–405. Pihlström (2005), p. 28. 40 Cf. Kappner (2004), p. 86. 35

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This convergence theory of truth states that the complete attainability of convergence between perceptible effects and the signs used is a goal of the ideally correct access to reality that lies in the future and can never be comprehensively achieved.41 The path to this goal proceeds in an ongoing dialectic between being true and being doubtful. The young Peirce formulated his theory of conceptual meaning with an eye to the psychology of action of the Scottish philosopher Alexander Bain: whose analysis of the interplay of “doubting and believing” (“belief-doubt-belief”) he considered so important that he saw the whole of pragmatism as little more than its corollary.42 Already in his early writings, Charles Sanders Peirce held that creative human reason is ordered toward action and therefore is always able to think of possibilities of action in new situations, to design goals of action, and to bring them to consciousness. Human convictions thus arise in the interplay between experiences made and the urge to claim a truth content of these experiences. To experience something means to experience the effect of a temporal-spatial event and to interpret this experience. With these reflected experiences, the subject encounters ever new events in which it often has to act itself. If the subject asks itself the question of what is now ethically justified to do, it must become aware of the possible effects of its action, that is, it must think about the goals of action associated with it. Peirce refuses—in accordance with his theory of truth—also on the level of practice to align the goals of action solely with subjective desires.43 Rather, they can only be justified if the actual effects of these intentional goals of action have first been examined using the various instruments of the scientific disciplines,44 depending on the facts of the case. A fixed goal of action can reasonably be abandoned only by a demonstrable error in the logic of justification.45 Another goal of action, which can be shown to be the more argumentatively justifiable one, must take its place. The determination of whether an action is to be called ethically correct is thus made dependent on the general criteria of scientific truth-finding. Therefore, the truth of ethical statements, like all other scientific statements, must in principle be considered subject to their fallibility. Charles Sanders Peirce always saw himself as an experimental scientist and as a logician with a way of thinking appropriate to the laboratory way of working.46 Therefore, he starts from a speculative-thetical beginning of knowledge to be verified by experiment, which he characterized from 1867 with the term abduction:47 If you look carefully at the problem of pragmatism, you will see that it is nothing but the problem of the logic of abduction,48

41

Cf. Olesky (2012), pp. 193–198. Liszka (2021), pp. 112–124. Cf. Nagl (1998), p. 32. 43 Cf. Aydin (2009), pp. 438 and 439. Anderson (2008), p. 43. 44 Cf. Misak (2004b), p. 169. 45 Cf. Misak (1994), p. 740. 46 Cf. Bernstein (2011), p. 52. Parker (1998), pp. 48–50. 47 Cf. Psillos (2011), pp. 125 and 126. 48 Cf. Peirce (1973), p. 263. Anderson (1986), pp. 145–148. 42

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it says in the sixth lecture on pragmatism (1903). At the beginning of the lecture, he had explained that abduction must be understood as an original argument that initiates a process of reasoning by presenting a certain thesis. For Peirce’s oeuvre as a whole, it can be summarized in this respect: “Abduction represents, within the framework of Peirce’s logic of science, the fundamental mode of execution of all epistemological and interpretive performance. It is the only ‘genuinely synthetic’ mode of inference (. . .), since it not only finds an explanation for a puzzling or surprising circumstance, but also invents new theories.”49 Under the concept of abduction, Peirce combines his epistemological reflections on the subject with his theory of procedural truth-finding in experimentation and thus points the way to the question of ethically correct action, which all human truthfinding has to follow by entering into a process of continuous verification of the truthfulness of statements.50 But since the doubt of fallibility can never be completely excluded, Peirce thinks of this process as unlimited. For Peirce, the subjects of all countries and all times who are interested in the true comprehensibility of reality form the ideal of an infinite community of researchers who, in an argumentative exchange about comparable facts and objects, gradually form a more coherent and comprehensive approach to reality.51 Peirce explains truth as rational acceptability, i.e., as the redemption of a criticizable claim to validity under the communicative conditions of an auditorium of judgmental interpreters ideally extended in social space and historical time.52

How does this now relate to Peirce’s approaches to ethics? The studies on Peirce were able to uncover that he only came to a stronger structuring of his thoughts on ethics in his late writings. It has been demonstrated that in 1902, stimulated by corrections in the theoretical architecture of his pragmatism, by influences from William James and Josiah Royce, and by his engagement with several contemporary theories of ethics, a reassessment of the place of ethical thought took place.53 Or as he himself wrote to his friend William James on November 25, 1902: “My own view in 1877 was crude. (. . .) I had not really got to the bottom of it or seen the unity of the whole thing. It was not until after that I obtained the proof that logic must be founded on ethics, of which it is a higher development. Even then, I was for some time so stupid as not to see that ethics rests in the same manner on a foundation of esthetics”.54 This newly recognized “unity of the whole thing” can be exemplified by the reformulation of his Pragmatic Maxim and its connection with his conception of the

49

Wirth (1995), pp. 405 and 406. Cf. Frankfurt (1958), p. 593. Cf. Apel (2002), pp. 135–141. 51 Cf. Haack (2009), pp. 14 and 15. Misak (2004a), p. 150. 52 Cf. Habermas (1998), p. 30. 53 Cf. Sørensen and Thellefsen (2004), pp. 2–11. 54 Peirce (1966b), p. 188. 50

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normative sciences. In an article entitled “Pragmatic and Pragmatism” for the Dictionary of Philosophy and Psychology (1902), he formulates the maxim as: The doctrine appears to assume that the end of man is action – a Stoical axiom which, to the present writer at the age of sixty, does not recommend itself so forcibly as it did at thirty. If it be admitted, on the contrary, that action wants an end, and that that end must be something of a general description, then the spirit of the maxim itself, which is that we must look to the upshot of our concepts in order rightly to apprehend them, would direct us towards something different from practical facts, namely, to general ideas, as the true interpreters of our thought.55

Peirce has repeatedly varied the formulations of the Pragmatic Maxim. Here he confirms that pragmatism still says that man’s goal lies in action. However, he now reads the maxim in light of his theory of normative science. He concedes that all action strives towards a goal and that this goal, not yet realized, must be describable. It follows, he argues, that the maxim itself requires us to consider the end result of our terms if we are to understand it properly. This in turn means, however, that we then do not look at practical facts, but at action-guiding general ideas of our thinking. In addition to the aforementioned concise summaries in his letters to Lady Welby, he records these corrections at length in the fifth lecture of his Lectures on Pragmatism (1903), which is entitled: “The Three Kinds of Goodness”. At the beginning of the lecture, he repeats his division of philosophy into phenomenology, normative sciences and metaphysics and explains: Supposing, however, that normative science divides into esthetics, ethics, and logic (. . .). For Normative Science in general being the science of the laws of conformity of things to ends, esthetics considers those things whose ends are to embody qualities of feeling, ethics those things whose ends lie in action, and logic those things whose end is to represent something.56

Reiterating the thesis of the three normative sciences, he sets out their tasks: In general, the normative sciences show the laws of correspondence of things with purposes. Aesthetics considers those things whose purpose is to embody qualities of sensation. Ethics considers things whose purpose is actions. Logic considers things whose purpose is to represent something. Peirce’s understanding of ethics is thus analogous to that of aesthetics and logic.57 For him, all three theories belong to the normative sciences, whose task is to find out the universal and necessary regularities in the relations of phenomena to their purposes.58 Logic helps to know the true, aesthetics the beautiful, and ethics the right. Normative sciences are to be justified theoretically, that is, independently of practical knowledge. Peirce already separated the conception of ethics as a normative science from an understanding of ethics as applied ethics in his lecture

55

Peirce (1965c), p. 2. Peirce (1973), p. 168. 57 Cf. Brent (1998), pp. 12 and 13. Hamner (2003), p. 112. Peirce (1965a), p. 334. 58 Cf. Peirce (1965b), p. 117. 56

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“Philosophy and the Conduct of Life” (1898).59 Just as the task of the normative science of aesthetics is not to say about an individual work of art whether it is beautiful or ugly, but to say which criteria are to be applied in order to make a judgement about beauty in a concrete case, the task of normative ethics is to determine the applicable criteria, but not to apply them. The three normative sciences do not have the task of determining what is logically, aesthetically or ethically good or bad in a concrete situation, but rather how the true, the beautiful and the good can be fundamentally determined. The passage that is decisive for the present concern is introduced by Peirce with the statement that he is now approaching the “secret of pragmatism”:60 The science of logic has the task of classifying and criticizing arguments. Taking up his already mentioned epistemological analyses of earlier writings, he explains that every argument is constituted by analogous arguments helping to infer its meaning. If now a new conclusion is drawn from an argument, then the one who draws this conclusion can only assume that this conclusion is true insofar as he knows about the truth of all conclusions concerning the facts—thus also analogous facts. Therefore, he determines the affirmation of logical reasoning by the one who draws the conclusion as an act of will, as an act of self-control, for he assents to the rationally seen correctness of analogical logic. This gives rise to Peirce’s understanding of morality as consisting essentially in the approval of an act of the will, that is, the implementation of the self-discipline of thought and action on logical inferences, and an understanding of ethics as a scientific inquiry into what ends of action can be assumed to exist after logical deliberation: Now, the approval of a voluntary act is a moral approval. Ethics is the study of what ends of action we are deliberately prepared to adopt.61

Influenced by Josiah Royce’s conception of morality, which the latter had presented in the eighth lecture “The Moral Order” of his Gifford Lectures (Aberdeen, January 1900) and published in 1901 as a separate volume, “The World and the Individual. Nature, Man and the Moral Order”,62 Peirce expresses the conviction that the willful decision to self-control makes the application of what is morally and logically rightly recognized possible.63 As a reflection on the effect of moral ought, ethics is consequently a normative science that recognizes the ultimate, true goal of action as desirable.64 This last goal of action is named by Peirce as Summum Bonum, as a state of reality to be striven for, which presents itself as consistently reasonable and is

59

Cf. Massecar (2016), pp. 1–18. Peirce (1973), p. 171. 61 Peirce (1973), p. 170. Cf. Boero (2014), p. 270. 62 Cf. Royce (1976), pp. 335–375. 63 Cf. Peirce (1973), p. 171. Stuhr (1994), p. 8. 64 Cf. Atkins (2016), pp. 140–144. 60

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therefore to be striven for.65 This state must be conceived as an ideal, because the path to its practical realization can only be followed under the validity of the proviso of fallibility. Peirce therefore describes it only vaguely. He tries to bring together two conditions in the determination of the summum bonum: the conformity of the goal to the aesthetic qualities of the agent and the uninfluenceability of this ideal by external circumstances.66 Whether this ideal will ever exist, Peirce leaves open. Basically, Peirce holds two views on the summum bonum: he understands it as the growth of concrete reasonableness to an ideal endpoint of an evolutionary process of truth discovery. Moreover, he holds that one cannot say in advance what the substantive result of this evolutionary process will be.67 It merely presents this as the goal of all cognition, action and thought, which can always be assumed as a general goal in all situations of human life and can never be completely questioned.68 Therefore, ethics as a normative science is dependent on aesthetics, since the latter, as a science of cognition, does not enable the subject to recognize all reality as an ordered whole in detail, but it does provide partial experiences of the order of reality, which give the subject the feeling that there could be such an overall order of reality.69 Vincent G. Potter has summarized Peirce’s argumentation thus: esthetics guides ethics by defining what is an end in itself, and so admirable and desirable in any and all circumstances regardless of any other consideration whatsoever. (. . .) Peirce concludes that this summum bonum is nothing else than reasoned and reasonable conduct. Ethics and logic are specifications of esthetics. Ethics proposes what goals one may reasonably choose in various circumstances, while logic proposes what means are available to pursue those ends.70

Aesthetics guides ethics by intuitively recognizing the beautiful—the aesthetics of the summum bonum—and coming to the realization that the beautiful of the summum bonum is pursued for its own sake. Aesthetics, therefore, as a normative science, lays down the abstract criteria for structuring reality, stating what is an end in itself and what can be thought of as so admirable and desirable in all circumstances, independent of any other considerations.71 Ethics then establishes the criteria for evaluating the ends of action that help to approach the summum bonum—the ethics of the summum bonum. This is then nothing other than the ideal of justified and reasonable behavior to strive for. Finally, logic determines what criteria should be chosen for evaluating the means necessary to achieve the ends. According to Peirce, ethics and logic are special fields of aesthetics.

65

Cf. Peirce (1973), p. 173. Cf. Herdy (2014), pp. 275 and 276. 67 Cf. Liszka (2014), pp. 459–479. Habermas (2008), pp. 111–115. 68 Cf. Krois (1994), p. 30. 69 Cf. Apel (1975), p. 178. 70 Potter (1997), p. 34. 71 Cf. Tejera (1994), pp. 88–92. 66

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If the conception of pragmatism since the debates in the Cambridge “The Metaphysical Club” is to be seen as a joint project of the two friends Charles Sanders Peirce and William James that emerged in critical dialogue, then William James goes beyond Charles Sanders Peirce in the elaboration of its ethical implications.72 Although philosopher Cheryl Misak sums up that “Peirce, however, was no pathbreaker in moral and political philosophy”,73 political scientist Scott Philip Segrest adds that William James did not leave a “full-blown ethical theory”74 either and, according to philosopher Sarin Marchetti, a “heterodox interpretation”75 of his work follows, it can be stated that William James at least attempted a compact outline of a pragmatic ethics in his lecture “The Moral Philosopher and the Moral Life”.76 The essential aspects in which he differs from the ethical thinking of Charles Sanders Peirce will be discussed here. William James studied at various universities. As a young student at Harvard University’s Lawrence Scientific School, which early on embraced the theories of evolution, he met Charles Sanders Peirce, who was only slightly older. James continued his medical studies in Germany with Hermann von Helmholtz and Rudolph Virchow, took courses in empirical and ethnological psychology, studied the philosophy of Hegel, Kant, and Renouvier, and again completed his medical studies at Harvard. From then on, he remained attached to the northeastern United States throughout his life. In the 1870s he took up his teaching position at Harvard University. After switching from medicine to philosophy and writing the extensive volumes of his “The Principles of Psychology” between 1883 and 1890, he devoted himself more and more to questions of the psychology of religion, metaphysics, epistemology, and ethics. The speech in question, “The Moral Philosopher and the Moral Life”, was delivered by him in 1891 in front of the Yale Philosophical Club. In it, he attempts to clarify the role of the moral philosopher in the subject’s confrontations with systems of knowledge and rules that have practical significance for life. On the one hand, he distinguishes a pragmatic theory of ethics from New Heglian idealism, on the other hand from the British utilitarianism of his time. He begins the speech with the words: The main purpose of this paper is to show that there is no such thing possible as an ethical philosophy dogmatically made up in advance. We all help to determine the content of ethical philosophy so far as we contribute to the race’s moral life. In other words, there can be no final truth in ethics any more than in physics, until the last man has had his experience and said his say.77

72

Cf. Pihlström (2004), pp. 31–36. Misak (2000), p. 48. 74 Segrest (2010), p. 176. 75 Marchetti (2005), p. 253. 76 Cf. Mayorga (2012), p. 114. 77 James (1956a), p. 184. 73

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James is concerned with proving the impossibility of an a priori theory of ethics and the dependence of all moral convictions on experience. The rejection of a comprehensive, metaphysical ultimate justification and the clarification of the limited role of transcendental experiences interpreted in terms of the psychology of religion go hand in hand with a plea for the ethical primacy of intersubjectively shared, experientially verifiable individual and collective experiences.78 William James distinguishes three questions of ethics—the psychological, the metaphysical and the casuistic.79 The psychological question confronts man, as a living being with consciousness, with the historical origin of our moral ideals and judgments. Taking up the idea of pleasure orientation and suffering avoidance of the British utilitarians Jeremy Bentham, John Stuart Mill and Alexander Bain, he questions its universal validity. Pleasure and suffering, he argues, are emotional reactions to certain states of affairs, and there are, however, certainly emotional-internal dispositions that lead us to morally justifiable judgments without being immediately absorbed in a pleasuresuffering calculation, such as the longing for inner peace, dignified living, or personal truthfulness. These emotional orientations of moral psychology cannot be fully explained by considerations of utility. For the psychological question of ethics of his time, he concludes: “Our ideals certainly have many sources. They are not all explicable as signifying corporeal pleasures to be gained, and pains to be escaped.”80 The metaphysical problem of ethics seeks the meaning of the terms “good”, “evil” and “duty”. These concepts presuppose living beings with consciousness, i.e. a living being that can perceive and reflect on its immediate, manifold references to reality.81 Such a living being with consciousness—James admits that so far only man is known to be so—perceives something as good and thus makes it something good for him, “and being good for him, is absolutely good, for he is the sole creator of values in that universe, and outside of his opinion things have no moral character at all.”82 It alone bears responsibility for the coherence of its ideals. Now, if several people hold different ideals that are coherent for them, any desire arising from an ideal constitutes an imperative. James is silent on how to deal with the intersubjective collision of ideals at this point.83 In contrast to Peirce’s infinite community of interpretation84—which symbolizes the possibility of ethically correct judgments—James abandons the conviction of the recognizability of an ultimate truth in the realm of ethics, but nevertheless emphasizes under the third question of ethics—which for him is the question of casuistry— that there is nevertheless a “most universal principle”: “the essence of good is simply 78

Cf. Lekan (2022), pp. 10–12. Cf. Gale (1999), pp. 26–49. 80 James (1956a), p. 189. 81 Cf. James (1904), pp. 480–482. Flanagan (1997), pp. 43–47. 82 James (1956a), p. 191. 83 Cf. Aikin and Talisse (2011), p. 9. 84 Cf. Thompson (2002), pp. 202 and 203. 79

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to satisfy demand”.85 The essence of good therefore consists in satisfying a need. Every need generates an ethical demand.86 In order to understand this connection, it is advisable to consult the introductory chapter in his work “The Principles of Psychology” (1890).87 There James presents human consciousness with an urge to satisfy recognized needs. However, since the realization of all needs inevitably leads to intrapsychic and interpersonal conflict, experience teaches human consciousness that regulation of its need satisfaction is necessary. By structuring and organizing this human urge to be practiced, for which he uses the term “habits”88 human behavior becomes civilized. To civilize means to avoid the evils that arise uncontrollably from the drive to satisfy needs. Human culture can only develop if human needs are satisfied in a civilized way or are put aside:89 Moral effort for James is not characterized through the achievement of some special value, or set of values, but rather through the infinite striving of human beings engaged in a permanent struggle against evil (. . .). It is to such moral endeavor that human energies must be subordinated and from such a paramount moral ideal they must receive their moral qualification. (. . .) James took the term ‘evil’ to have the factual meaning it had in the social debate of his time, when disease, poverty, slavery, exploitation were routinely described.90

As the casuistic question of ethics now aims at the comprehensibility and weighting of the various goods and evils, it is referred again and again to the universal principle of the satisfaction of needs. Since the realization of all needs is impossible because of the limitedness of the world and of all life, the question of the criterion of weighing which need should have priority in its realization over another, and on what grounds, arises. James responds to this with a rhetorical insertion: Since everything which is demanded is by that fact a good, must not the guiding principle for ethical philosophy (since all demands conjointly cannot be satisfied in this poor world) be simply to satisfy at all times as many demands as we can?91

The guiding principle of philosophical ethics is accordingly realized through the best possible satisfaction of all needs. A hierarchy, which the casuistic question of ethics92 has to bring about, sets in the highest place those ideals which demand the least cost or by whose realization the fewest other ideals are destroyed. The goal of a hierarchical order of ideals is achieved by the imperative: invent a way to realize your own ideals that also satisfies the needs of others—“that and that only is the path of peace!”93 But because one does not know a priori which concrete ethical rules can

85

James (1956a), p. 201. Cf. Rorty (2000), p. 213. Cf. Hackett (2016), p. 56. 87 Cf. James (1981), pp. 15–24. 88 Cf. James (1981), pp. 109–131. 89 Cf. James (1895), pp. 14 and 22. 90 Franzese (2008), p. 7. 91 James (1956a), p. 201. Cf. Roth (1969), pp. 66–71. 92 Cf. Putnam (1993), pp. 71–76. Dooley (1974), pp. 74–82. 93 James (1956a), p. 201. 86

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de facto realize one’s own ideals and at the same time satisfy other needs, one must study the experiences of people who have made them with the practice of the most diverse rules. If one comes across such rules that were wanted and more effective than the present ones, one should transfer them; if one does not find any wanted and more effective ones than the present ones, one should not change anything. The ethical theory of William James as a whole pursues this anti-essentialist, experienceguided basic trait, which includes the possibility of a constant changeability of ethical convictions: In point of fact, there are no absolute evils, and there are no non-moral goods; and the highest ethical life (. . .) consists at all times in the breaking of rules which have grown too narrow for the actual case. There is but one unconditional commandment, which is that we should seek incessantly (. . .) so to vote and to act as to bring about the very largest total universe of good which we can see.94

In the reduction of all philosophical ethics to a single commandment, namely to strive for a reality in which as much of the good is realize—i.e. the satisfaction of human needs—we find the normative basis of an ethical theory according to William James. He thereby presupposes two things. For him, there is a pluralism of subjective approaches to reality,95 a pluralism of the realization of needs, and not the one ethical system in which all needs can be realized in the best possible way.96 Vis-à-vis Peirce’s idea of a conceivable summum bonum, he therefore shows himself reservedly sceptical.97 For him, there is only the possibility of a processual, experienceguided learning that is able to satisfy more and more needs in the course of history— without knowing where this will develop. Reality, then, for William James, is not a singular entity, but open with factual possibilities and contingencies in which human actions can lead to the tragic or the better. William James names the human approach to reality “radical empiricism” because this approach admits nothing that is not directly experienced and excludes nothing that is directly experienced. He affirms that “the relations which connect experiences are themselves experienced relations; and every kind of experienced relation must (. . .) count as real as anything else in it.”98 Man, as a living being with an awareness of his relations to reality and the capacity to perceive the needs of himself and others, cannot escape the responsibility for the shaping of reality that springs from this.99 As James explains in the third lecture on pragmatism (1906/1907),100 the rejection of total determinism follows from the recognition that reality and human existence are open to the future. This in turn leads to the question of the freedom 94

James (1956a), p. 209. Cf. James (1977), pp. 137–149. 96 Cf. Bernstein (2010), pp. 55–61. 97 Cf. Edel (1993), p. 5. 98 Oehler (2000), p. 9. 99 Cf. James (1962), pp. 283 and 284. Bird (1997), p. 280. 100 Cf. James (1975a), pp. 60–62. 95

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of consciousness. Whoever affirms the freedom of living beings with consciousness also affirms the concept of freedom of will; that concept which he names as a pragmatic postulate.101 The ethical claim that thus arises in the actions of man obliges him to lead the manifold world to the better in each case.102 He titles this concept with the term meliorism borrowed from Peirce.103 Closely connected with his psychological reflections on religion,104 with the Darwinian principle of historical development, and with the belief in the knowability of humanistic progress, he interprets the emergence of truth as an evolutionary process in which human practice (in its relation to the environment) accumulates truths as proven and adaptive knowledge. Meliorism now enables an evolutionary perspective on a future that can be shaped by human beings. It merely points to the fact that appropriate action opens up the chance for a better future.105 Therefore, in the Eighth Lecture on Pragmatism (1906/1907), James can say: “It is clear that pragmatism must incline towards meliorism.”106 What James understands as ethical truth can be derived from the sixth Pragmatism Lecture (1906/1907) “Pragmatism’s Conception of Truth”.107 Truth, fundamentally, is the correspondence with experienced reality. True conceptions, it goes on to say, are those that we can assimilate and assert, enact and verify in accordance with intersubjectively shared knowledge and experience about reality. Truth is, for the imagination, something that eventually happens.108 An idea is not true per se, but it becomes true by being made true through intersubjectively affirmed correspondence with events. This is best described by the term “verification”. Something is made true in a process in that it proves itself.109 Something attains validity by being asserted. From this it can be concluded: All human thinking gets discursified; we exchange ideas; we lend and borrow verifications, get them from one another by means of social intercourse. All truth thus gets verbally built out, stored up, and made available for everyone. (. . .) Truth for us is simply a collective name for verification-processes, just as health, wealth, strength, etc., are names for other processes connected with life (. . .). Truth is made, just as health, wealth and strength are made, in the course of experience.110

101

Cf. James (1975a), pp. 59–62. Cf. James (1956b), p. 76. Putnam (1987), pp. 80–86. 103 Cf. Krämer (2006), pp. 73–79. 104 For the theological implications of his ethical theory, see Boone (2013), pp. 13–15. Slater (2009), pp. 1–16. Joas (2001), pp. 45–51. 105 Cf. Diaz-Bone and Schubert (1996), pp. 121 and 122. Mullin (2007), pp. 37 and 38. 106 James (1975a), p. 137. Cf. Carrette (2013), p. 138. Myers (1986), p. 413. 107 Cf. James (1975a), pp. 95–113. Bird (1986), pp. 35–65. 108 Cf. Putnam (1997), p. 172. 109 Cf. James (1908), pp. 13–15. 110 James (1975a), pp. 102 and 104. 102

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What was later elaborated by the discourse theories based on linguistic pragmatics could draw from such foundations of classical pragmatism.111 All human thought is discursively integrated. People exchange ideas with each other and test whether they can be reconciled with perceived reality, whether they can be verified. Everything that can be called true is expanded in words, stored and made available to everyone.112 Verification processes for correct cognition and correct action are regarded by James—like Peirce—as similarly designed processes of a matching of theoretical ideas and practical verification in experiential, intersubjective exchange. Almost a century after William James gave his Gifford Lectures in Edinburgh (1901/1902), which were soon published under the title “The Varieties of Religious Experience: A Study in Human Nature”, Charles Taylor also dealt intensively with that text in the same lecture series at the same place. His lectures were entitled “Living in a Secular Age” (1998/1999). He expresses William James’ understanding of ethics—referring to the text “The Will to Believe” (1896)—as follows: This ethics proceeds from a view of what proper scientific procedure is: Never turn your hypotheses into accepted theories until they have been adequately proven. Then it promotes this principle to the rank of a moral precept for life in general. According to Taylor, this view presupposes the conviction that human dispositions unreflectively prefer certain hypotheses about reality and set others aside. The mature person, becoming independent, self-determined, could distance himself from these inclinations in order to turn to the universe as it really is. But the power of inclinations to give priority again and again to our unreflective preferences, to our individualsubjective needs, is so strong that we must make it an inviolable rule never to give our consent to it unless the evidence compels it.113 In one of his last works “The Meaning of Truth. A Sequel to ‘Pragmatism’” (1909) William James also emphasizes: Since man, as the measure of all reality, is not only the subject114 but also the object of action, and since his needs indicate a deficiency to be remedied in his concrete everyday mode of existence, there arises the permanent mandate115 to the insight into right action, formed by prudence, to satisfy needs in the course of time—in the words of William James, there is need for an “ethics (. . .) of prudence and the satisfaction of merely finite need.”116 Like Charles Sanders Peirce, William James represents a formal, procedural understanding of ethical thought.117 In his philosophy, reflection on good and right action remains committed to the conditions of thought of a pragmatism that arises from everyday experiences and is to be shared intersubjectively. For him, the satisfaction of needs is the first duty of ethics. Cognitive processes of abstraction 111

Cf. Habermas (1973), p. 216. Habermas (2002), pp. 225–228. Cf. White (2010), pp. 9 and 10. 113 Cf. Taylor (2002), pp. 53–60. 114 Cf. James (1975b), p. 142. 115 Cf. Marchetti (2015), pp. 109 and 110. 116 James (1956a), p. 213. 117 Cf. Putnam (2004), p. 42. 112

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enable the systematization and categorization of these subjective needs. However, those who seek to do so must concede that the entire reality of needs cannot be fully grasped. The only step toward coordinating and prioritizing the satisfaction of these needs that James points to—without elaborating on it—could be in intersubjective, discursive exchanges about intuitively grasped, subjective needs. James thus adds the intersubjectively articulable everyday situations of the subjects concerned and capable of conceptual abstraction to the possibility of knowing the truth of right action, which Charles Sanders Peirce had reserved primarily for scientific researchers.118

4.2.2

Ethical Theory According to John Dewey

Richard J. Bernstein begins his study of John Dewey with the words: No American philosopher has been more widely discussed and criticized than John Dewey. Yet despite this – or perhaps because of this – there is a great deal of confusion and misunderstanding about what he really believed and what is the heart of his philosophic outlook.119

Like Charles Sanders Peirce and William James, John Dewey (1859–1952) was a child of the US Northeast at the transition from the nineteenth to the twentieth century.120 Born in Burlington, he studied at the University of Vermont there. After briefly working as a teacher, he went to Johns Hopkins University, where he received his doctorate in 1884 for a dissertation on the psychological theories in the work of Immanuel Kant. In Baltimore he hears Peirce lecture on mathematical logic; the importance of which to philosophy he strongly doubts.121 He then takes up teaching positions at the University of Michigan and the University of Minnesota. After moving to the University of Chicago, he began a period of intensive study of experiential and democratic pedagogy, which he, beginning 1904, continued at Columbia University in New York. In addition, he takes up studies on questions of epistemology and metaphysics. How his attitude towards the thought of Charles Sanders Peirce and thus towards the foundations of the theory of pragmatism changed in the course of his life is exemplified by a review (1934) of Peirce’s Collected Papers, in which he recommends reading the texts and remarks on the author that he would be “the most original philosophical mind produced by this country thinking about fundamental matters.”122

118 Cf. Habermas (1991), p. 32. James (1975a), p. 94. Bauer (2009), p. xv. Marchetti (2005), pp. 252–257. 119 Bernstein (1966), p. vii. 120 Cf. Campbell (1995), pp. 7–22. 121 Cf. Martin (2002), pp. 64 and 73. 122 Dewey (1987), p. 421.

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How can John Dewey’s thinking on morality and ethics, integrated into a complete work of 37 volumes in total, be characterized in a few sentences? Jürgen Habermas tried: Dewey starts from the image of a cooperating community that copes aggressively with the contingencies of its surprising environment. It copes with challenging situations, whether they are theoretical or practical, in the same way, namely through “intelligent behavior”. By this Dewey means problem-solving behavior characterized by social cooperation, imaginative hypothetical thinking, and experimental intervention. And because human intelligence is indivisible, value orientations are no less under scrutiny than empirical beliefs. Problems always arise in situations, and are thus perceived and dealt with in contexts of action. Within this global frame of reference, empirical convictions form a network with interests, rational considerations, value orientations and overarching ethical goals, in which the convictions can correct each other.123

John Dewey devoted several extensive publications to this approach.124 Besides his two editions of the book “Ethics” (1908/1932), written with his former Chicago colleague James Hayden Tufts, the later works “Human Nature and Conduct. An Introduction to Social Psychology” (1922), “Theory of Valuation” (1939), and “Three Independent Factors in Morals” (1930), present systematic designs of an ethical theory within pragmatic thought.125 In doing so, he, like Peirce and James, places the realm of practical reason in the overall context of a comprehensive theory of knowledge and truth. Dewey’s thinking is devoted—as the title of a collection of essays says—to the “Problems of Men”,126 i.e. the real conditions of concrete human life and its relations to action. He starts from the everyday practical, social-psychological observation that man experiences a wide variety of deficiencies during his life (hunger, lack of love, linguistic limitations, physical deficits, lack of knowledge, etc.). Adding the developmental psychological observation that when infants, for example, are hungry, they cannot yet know that if they cry they will get something to eat, they cry out of a sense of hunger (without having any knowledge of what exact purpose this serves).127 Only when the baby learns that by crying it can achieve that its hunger feeling is satisfied and disappears, does Dewey conclude that it is not the desire for a purpose that is the original starting point for need satisfaction, but the impulse that lack triggers. In the process of socialization, people learn a variety of knowledge that helps them assign certain impulses to certain needs and these, in turn, to certain purposes in order to satisfy the needs. If they experience the coherence of this

123

Cf. Habermas (2000), pp. 561 and 562. See also, Lundestad (2015), pp. 222–227. Habermas (1995), p. 117. 124 A selection can be found in Guinlock (1994). Reference is also made to the early systematic outline, Dewey (1971), pp. 219–362. 125 Cf. Pappas (2021), pp. 3–9. Sleeper (1986), pp. 181–200. 126 Cf. Dewey (1968), pp. 8–10. 127 Cf. Dewey (1988), pp. 197 and 198.

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assignment, they form “habits”, routine assignments of theoretical knowledge and practical actions.128 If the subject encounters a reality in which this rehearsed classification no longer functions, it is faced with the challenge of subjecting its thinking and behaviour to a reflexive examination.129 Such processes of awareness result in the elements that prevent the rehearsed assignment being analysed, understood and brought into relation with that previous assignment.130 The success of future action presupposes an understanding of the previous action that is confronted with limits. In order to be able to plan this new action, Dewey presents his theory of imagined deliberation. At the beginning of the chapter “The Nature of Deliberation” of his work “Human Nature and Conduct” he states: Deliberation is an experiment in finding out what the various lines of possible action are really like. It is an experiment in making various combinations of selected elements of habits and impulses, to see what the resultant action would be like if it were entered upon. But the trial is in imagination, not in overt fact.131

For him, deliberation represents an experiment to find out what the different possibilities for action actually mean. It is a matter of imagining, with the help of the creativity of the human mind,132 different combinations of practiced habits and impulses in order to see what the resulting action would look like if put into practice.133 This, in turn, assumes that subjects have access to sufficient experiential resources (their own or others’) to make these imaginings possible in the human mind in the first place. His contribution “The Postulate of Immediate Empiricism” (1905) had already underlined the persuasiveness of James’s understanding of experience.134 According to this, the beginning of all science and the search for truth could only be sought in the spatiotemporally contingent worlds of experience of the subjects, which related to the traditional worlds of experience of other subjects. These different experiences, however, require an order in order to be able to orient themselves practically in life. The creation of an orderliness is in turn based on a certain degree of intelligence. For deliberation, this means that, as the subject makes practical experiences with justifiably meaningfully regulated behavior, deliberation itself can become a habit of the subject: Morality then, for Dewey, is not conforming to some rule but the intelligent consideration of alternative courses of action that enable us to better adapt our circumstances or modify the

128

Cf. Dewey and Tufts (1985), pp. 39–48. Dewey (1983), pp. 15–21 and 43–53. Cf. Dewey (1986a), pp. 196–220. 130 Cf. Dewey (1979), pp. 16–17. Rorty (1994), pp. 68 and 69. 131 Dewey (1983), pp. 132 and 133. Cf. Ralston (2010), pp. 38 and 39. Fesmire (1995), pp. 569 and 570. 132 Cf. Dewey (1917), pp. 13 and 14. Rosenbaum (2009), pp. 122–128. 133 Cf. Dewey (1986b), p. 14. McCollough (1991), pp. 16–18. Werner (1979), p. 287. 134 Cf. Alexander (2002), p. 3. 129

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circumstances to suit our purposes. An ethical life is one of continual intelligent reconstruction.135

Also in the second part of the pragmatic theory of moral life in the heavily edited second edition of “Ethics” (1932), written with James H. Tufts, Dewey states that successful deliberation is an indication of intelligent action.136 The corresponding deliberation is more intelligent the more precisely the definition of the problem can be formulated in terms of a precise observation of its relevant features, the more creative someone is in developing feasible solutions, the more comprehensible the observation of the consequences of implementation is made, and the better the decision corresponds to the expected consequences—weighed against the consequences of alternatives.137 Action based on practical judgments arising from deliberation is self-aware and therefore can regulate human desires, affects, and emotions.138 It is an active, personal and not a mathematically plannable, not a purely logical event.139 Dewey adds that for the pragmatic, experience-based theory of ethics, the difference between decisions cannot consist in the division of good and evil, right and wrong. If the decision alternatives were each clearly nameable by these terms, there would be no uncertainty of classification. The question of what should be done ethically would be clearly answerable. Only in all cases when the values or goods to be aimed at are to be weighed against each other, when good stands against good, right against right, good against right, then ethical weighing processes become practically necessary. The disclosure of the difference between the ethically better and the less good, the ethically worse and the less bad, the morally right and the less right as well as the morally wrong and the less wrong is the result of such deliberation processes to be striven for. Of course, every thinking subject can carry out such considerations for itself. If it reserves this process for itself, it does not escape the reproach of arbitrariness. If the subject pursues the claim that the result of his deliberation is true, he is forced to disclose his way of thinking and his result of thinking to the intersubjective access in a comprehensible way. The methodological and logical instruments of the intersubjective exchange decide on the justification of the truth claim. Impressed by the methodological persuasiveness of scientific research,140 Dewey further argues that the situation, in which the previous strategies of action are perceived as of limited use, bears the character of the indeterminate and the doubtful. Situations are what make objects or events appear in their contextual whole. They are grasped through observation. The creativity of human reason enables human

135

Eldridge (2011), p. 131. Cf. Dewey and Tufts (1985), pp. 272–275. 137 Cf. Dewey (1917), pp. 63 and 64. 138 Cf. Ryan (1995), p. 241. 139 Cf. Lekan (2003), p. 140. Grimm (2010), pp. 225–251. Fesmire (1999), pp. 135–139. 140 Cf. Bernstein (1966), pp. 115–129. Rost (2003), pp. 46–51. Dewey (1972c), p. 53. Eddy (2016), pp. 37–39. 136

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cognition to gain more certain access to situations through hypotheses and logical inferences. A comprehensive deliberation therefore does not remain in the autarkic claim of validity of the situation, but considers the situation embedded in “factors highlighted by traditional ethical theories, such as duties and contractual obligations, short and long-term consequences, traits of character to be affected, and rights.”141 This dialectically progressive process of adaptation between assumptions, doubts and new assumptions corresponds to the pragmatic basic methodology of scientific knowledge adopted by Charles Sanders Peirce from Alexander Bain. It is adaptive because human cognition always manifests and stabilizes itself in a learning interaction between the individual and the environment. In this process, human cognition remains creative, interprets the stimuli received and attempts to understand them in the refigurations. In his extensive late work “Logic. The Theory of Inquiry” (1938),142 Dewey elaborated a step-by-step process for the cross-disciplinary search for true knowledge already outlined in “How We Think” (1933).143 Taking up the processual understanding of Peirce’s epistemology144 and the importance of James’s imagination, he systematized a logic of inquiry defined thus: Inquiry is the controlled or directed transformation of an indeterminate situation into one that is so determinate in its constituent distinctions and relations as to convert the elements of the original situation into a unified whole.145

Uncertainty in dealing with a situational fact prompts the question of understanding it. As laid out in “Experience and Nature” (1925),146 the search for true knowledge presents itself as a controlled or directed transformation of an indeterminate situation into another, more determinable one, whose constitutive features and relationships are such that the elements of the original situation are transformed into a newly unified whole. Dewey draws this transformation of the situation in six successive stages: The first level is marked by an ambiguous situational state of affairs. From this “it follows (. . .) that at the beginning of a learning process ‘the feeling of a difficulty’ must be felt, comparable to Peirce’s ‘living doubt’.”147 Once the realization is added that there is a need for clarification and a proposal for investigation is introduced, the second level begins. The second step follows with a consideration of how these difficulties can be better understood, and then a draft of what the methodology of an appropriate investigation would need to be. This includes describing the problem underlying the difficulty in dealing with the situation as precisely as possible. The third level characterizes the generation of “abducted”

141

Fesmire (2003), p. 70. Cf. Mercer (1993), pp. 169–172. Cf. Dewey (1986c), pp. 105–122. 143 Cf. Dewey (1986a), pp. 200–206. 144 Cf. Bernstein (2011), pp. 59–64. 145 Dewey (1986c), p. 108. 146 Cf. Dewey (1981), p. 17. Dewey (1980), pp. 151 and 152. Pappas (2008), pp. 31–33. 147 Martens (2002), p. 51. 142

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ideas, i.e., intuitively formulated initial hypotheses for the subsequent construction of logical reasoning processes. As soon as the formulated hypotheses are compared with the empirical and logical lines of argumentation and—depending on the case— rejected, adapted or adopted, the process of cognition is on level four. The experimental verification of the theses is the focus of the fifth level. Finally, the sixth level attempts to re-sort the verified theses into the network of socially structured, human spheres of life. If the sorting succeeds, one can speak of a “warranted assertability”.148 Following Peirce’s infinite community of inquirers, Dewey democratizes the process of finding the truth. As already mentioned, Dewey understands the search process towards a “warranted assertability” as a collective, intersubjective process of cooperating subjects.149 Therefore it is correct to say: “Dewey liked to use the term social intelligence in his discussion of the importance of cooperative inquiry conducted in an experimental spirit. At the heart of social intelligence is the use of the best available information”.150 Dewey assumes that in this collective process of approximate truth-finding there is an analogy between the status of a theory of values and a theory of natural facts.151 Accordingly, moral problems are to be understood by analogy with scientific problems.152 For example, just as natural science attempts to find systematic solutions to organic, physical, or chemical problems, ethical thought attempts to find such solutions to problems of human coexistence. However, Dewey states that he is only advocating an analogy here, not an identity of the scientific claim to validity. He discusses a distinctive feature of social value judgments in the tenth chapter of his book “The Quest for Certainty” (1929), entitled “The Construction of Good”. Dewey formulates the idea that153 a desirable state of affairs is not the same as clarifying whether the situation is desirable.154 It is precisely this distinction that makes it possible to allow behavioural control on the basis of values: The (. . .) fundamental character of the distinction; of the difference between mere report of an already existent fact and judgment as to the importance and need of bringing a fact into existence; or, if it is already there, of sustaining it in existence. The latter is a genuine practical judgment, and marks the only type of judgment that has to do with the direction of action. Whether or not we reserve the term ‘value’ for the latter (. . .) is a minor matter; that the distinction be acknowledged as the key to understanding the relation of values to the direction of conduct is the important thing.155

According to this conviction, there is a difference between the mere reproduction of an already existing fact and the judgment about the importance and necessity of

148

Cf. Hildebrand (2003), pp. 132–138. Cf. MacLennan (1970), p. 256. Gronda (2020), pp. 122–131. 150 Moreno (2005), p. 65. Cf. Gouinlock (1981), p. 111. Moser et al. (1998), p. 72. 151 Cf. Putnam (2009), pp. 269 and 270. 152 Cf. Heilinger (2016), p. 153. Welchman (1997), p. 170. Dewey (1977a), p. 45. 153 Cf. Lundestad (2010), p. 186. 154 Cf. Dewey (1988), pp. 239–241. 155 Dewey (1984c), pp. 208 and 209. 149

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creating a fact, or, if it already exists, of maintaining it. The latter, he argues, is a genuine practical judgment and denotes the only kind of judgment that has to do with the direction of action. This distinction was to be regarded as the key to understanding the relation of values and to directing behavior.156 This affects both the question of the good life, which addresses the self, and the question of just coexistence, which aims at the intersubjectively constituted collective. In “Ethics” (1932), Dewey explains that in the process of ethical deliberation, the self is basically not to solve facts, but to find out what kind of personhood it most wants to aspire to. The collective constituted in intersubjective relations, on the other hand, must determine which principles and rules are best suited to enable the individuals thereby affected to realize their conceptions of personhood.157 In both cases, it is a matter of an “exercise of pragmatic intelligence”,158 of a comparison of ideas of what is desirable, fed by reflected experience, and its conditions of realization. In his main works, Dewey repeatedly points to the specific similarity of moral and empirical science in general, as well as to the multi-stage methodological process of establishing truth.159 By designing a systematics of pragmatic ethical judgment, an applicable sequence of steps that is pragmatic in the best sense,160 he goes beyond Charles Sanders Peirce and William James.161 As a result, Dewey lays out an experimental ethics on the model of the structure of inquiry,162 exemplified in “Logic. The Theory of Inquiry”. The sentence applies: “Dewey’s ethics cannot be understood in isolation from the larger fabric of the whole of his philosophy”.163 As will be shown, Dewey’s theory of pragmatic ethical judgment prepares the ground for a variety of models of ethical case consultation in the context of clinical ethics consultation. These adopt the main features of his methodological sequence of steps and adapt them to the requirements of clinical operations. In Sect. 2.3.2 it was pointed out that since the Model Guidelines for Health Care Providers to Establish Infant Care Review Committees of 1985 and the Accreditation Manual for Hospitals of the Joint Commission of 1992, clinical ethics consultation has been defined by three areas of responsibility. That Dewey’s situationally localized, intersubjectively justifiable, methodologically guided theory of ethical truth-telling has been translated primarily into concepts of case reviews is obvious. However, Dewey was also used in the other two areas—ethical guidelines and recommendations for action and ethical training: Accordingly, ethical rules and principles of action are regarded by him as expressions of a past search for truth that has been repeatedly confirmed by

156

Cf. Gouinlock (1989), p. 314. Festenstein (2008), p. 92. Cf. Dewey and Tufts (1985), p. 302. 158 Festenstein (2008), p. 103. Cf. Welchman (2008), p. 250. Fesmire (2021), pp. 25–27. 159 Cf. Putnam and Putnam (1995), pp. 205–210. 160 Cf. Thayer (1968), p. 383. 161 Cf. Oppenheim (2005), p. 12. 162 Cf. Grimm (2010), p. 246. Kitcher (2012), p. 16. 163 Pappas (2008), p. 4. 157

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experience. They are the results of successful processes of intersubjectively conducted research. They are accepted as valid as long as they solve problems of interpersonal coexistence and help to promote its success in the long term.164 In “Theory of Valuation” (1939), Dewey uses an analogy to define the term “health”: for example, there are no principles to be gained from theoretical logic and no rules by which the statement that a person is healthy can be uniformly and universally compared with the actual state of the person.165 Rather, such principles and rules for determining the health of human beings had developed out of experiences that corrected and solidified over long periods of time. They were found to be good or bad, right or wrong on the basis of their fitness in application.166 That is to say, the designation of whether and how a person can be judged healthy or sick is always only the provisional, but current result of an exchange of experience that condenses into rules and principles.167 At the end of the second part “Theory of the Moral Life” of “Ethics” (1932) one can read: Rules are practical; they are habitual ways of doing things. But principles are intellectual; they are final methods used in judging suggested courses of action.168

Rules, then, are an expression of habitual forms of action control, whereas principles take on a reflexive part of an evaluation of action. The purpose of moral principles is to provide points of view and methods that enable the individual to make his own analysis of the elements of good and bad in the particular situation in which he finds himself. In short, “A moral principle (. . .) is a tool for analyzing a special situation”.169 A theory of ethical guidelines and recommendations for action could be linked to this understanding. The third area of clinical ethics consultation, continuing ethical education, also found its foundations in John Dewey. Three years after his move to the University of Chicago and shortly after the founding of the Laboratory School, John Dewey published an educational creed divided into five articles in 1897. He prefaces the paragraphs seventy-nine times with “I believe.” At the beginning of the first article it reads: I believe that all education proceeds by the participation of the individual in the social consciousness of the race. This process begins unconsciously almost at birth, and is continually shaping the individual’s powers, saturating his consciousness, forming his habits, training his ideas, and arousing his feelings and emotions. Through this unconscious education the individual gradually comes to share in the intellectual and moral resources which humanity has succeeded in getting together.170

164

Cf. Dewey (1977b), p. 291. Cf. Dewey (1984b), pp. 287 and 288. 166 Cf. Morris (1970), p. 93. Welchman (2010), p. 167. Hackett (2009), p. 231. 167 Cf. Dewey (1988), p. 233. Dewey (1983), pp. 164–170. 168 Dewey and Tufts (1985), p. 280. Cf. Mou (2001), pp. 162–165. 169 Dewey and Tufts (1985), p. 280. 170 Dewey (1972b), p. 84. 165

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Although the text “My Pedagogic Creed” focuses on school education and thus takes a closer look at childhood and adolescence, the sections provide insight into Dewey’s basic beliefs in educational theory. In the first article, “What education is,” Dewey presents education as the comprehensive, lifelong participation of subjects in shaping social structure and culture. Education, he says at one point, is not preparation for life; education is life itself. It aims at the ability to act, draws on one’s own and others’ resources of experience and can only be understood as a social event. This applies in particular to moral education: I believe that the moral education centers upon this conception of the school as a mode of social life, that the best and deepest moral training is precisely that which one gets through having to enter into proper relations with others in a unity of work and thought.171

At the end of Article 3 on the object of education, Dewey adds: If education is life, all life has, from the outset, a scientific aspect, an aspect of art and culture, and an aspect of communication. (. . .) The progress is not in the succession of studies but in the development of new attitudes towards, and new interests in, experience. I believe finally, that education must be conceived as a continuing reconstruction of experience; that the process and the goal of education are one and the same thing.172

If education is life, then all of life has a scientific, artistic, cultural and communicative learning aspect from the very beginning. An overall concept of education is faced with the challenge of taking up the experiential fullness of the aspects to human life. Since this can only be thought of as an unfinishable process in view of the existing diversity of experience and the diversity of experience that is newly enriched at any time, educational progress does not fundamentally mean the accumulation of scientific studies, but rather the development of new attitudes towards interests in one’s own and other people’s human experiences. That is why Dewey can say that education is to be conceived as a continuing reconstruction of experience. This means that the process and the goal of education are one and the same. “Philosophy and Education” (1930) states: For the ultimate aim of education is nothing else than the creation of human beings in the fullness of their capacities.173

The goal of learning is therefore not the accumulation of knowledge about reality, but the development of a wide variety of skills in order to be able to act better and better, i.e. more effectively, in the areas that are important to life. For moral education, it follows that educational concepts can be justified if they can accordingly produce morally acting people.174 The truly moral person, “Ethics” (1908) states, possesses and uses the practiced attitude of viewing all faculties and habits of the self from a social point of view. The attitude pervades their plans, regulates their desires, and performs their actions with a view to the effects they have on the social 171

Dewey (1972b), p. 88. Dewey (1972b), p. 91. 173 Dewey (1984a), p. 287. 174 Cf. Noddings (2010), pp. 282–285. Dewey (1972a), p. 58. 172

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groups—of which the person is a part. This person finds their pleasure or satisfaction by promoting these activities.175 “Democracy and Education” (1916) represents the most comprehensive systematic compilation of Dewey’s basic philosophical reflections on educational theory. The last of the 26 chapters is entitled “Theories of Morals”.176 There, Dewey discusses much of what has been indicated here and summarizes the train of thought that also remains significant for ethical training in the context of clinical ethics consultation at the end. Ethical learning takes place particularly in the intersubjective communication process. The reflexive handling of experiences of problem solving and the tested effects of applied problem-solving strategies that takes place there produces successful moral learning.177 It is an expression of an interplay of experiential knowledge, applicable intelligence, and refigured behavior. A new fund of subjectively acquired, intersubjectively shared moral education emerges from the conflictual everyday situations in direct patient care and the comprehension-oriented based experiences that implemented solution strategies show their perceptible effects. Ethical case consultation and ethical training are pragmatically closely related.

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Putnam, H. (1962). What theories are not. In E. Nagel, P. Suppes, & A. Tarski (Eds.), Logic, methodology and philosophy of science. Proceedings of the 1960 International Congress (pp. 240–251). Putnam, H. (1987). The many faces of realism. Putnam, H. (1997). James’s theory of truth. In R. A. Putnam (Ed.), The Cambridge companion to William James (pp. 166–185). Putnam, H. (1999). Pragmatism and realism. In M. Dickstein (Ed.), The revival of pragmatism: New essays on social thought, law, and culture (2nd ed., pp. 37–53). Putnam, H. (2004). Philosophy as a reconstructive activity: William James on moral philosophy. In W. Egginton & M. Sandbothe (Eds.), The pragmatic turn in philosophy: contemporary engagements between analytic and continental thought (pp. 31–46). Putnam, H. (2009). Intelligence and ethics. In J. R. Shook & J. Margolis (Eds.), A companion to pragmatism (pp. 267–277). Putnam, H., & Putnam, R. A. (1995). Dewey’s logic. Epistemology as hypothesis. In H. Putnam (Ed.), Words and life (pp. 198–220). Putnam, R. A. (1993). The moral life of a pragmatist. In O. Flanagan & A. Rorty Oksenberg (Eds.), Identity, character, and morality. Essays in moral psychology (pp. 67–89). Quine, W. V. O. (1979). Two dogmas of empiricism. In W. V. O. Quine (Ed.), From a logical point of view. Nine logical-philosophical essays (pp. 27–50). Quine, W. V. O. (1981). The pragmatist’s place in empiricism. In R. J. Mulvaney & P. M. Zeltner (Eds.), Pragmatism: Its sources and prospects (pp. 21–39). Quine, W. V. O. (1985). The time of my life. An Autobiography. Ralston, S. J. (2010). Dewey’s theory of moral (and political) deliberation unfiltered. Education and Culture, 26(1), 23–43. Reichenbach, H. (1971). Dewey’s theory of science. In P. A. Schilpp (Ed.), The philosophy of John Dewey (pp. 159–192). Richardson, A. W. (2003). Logical empiricism, American pragmatism, and the fate of scientific philosophy in North America. In G. L. Hardcastle & A. W. Richardson (Eds.), Logical empiricism in North America (pp. 1–24). Rorty, R. (1982a). Keeping philosophy pure: An essay on Wittgenstein. In R. Rorty (Ed.), Consequences of pragmatism (Essays: 1972-1980) (pp. 19–36). Rorty, R. (1982b). Pragmatism, relativism, and irrationalism. In R. Rorty (Ed.), Consequences of pragmatism (Essays: 1972-1980) (pp. 160–175). Rorty, R. (1994). Hoffnung statt Erkenntnis. Eine Einführung in die pragmatische Philosophie. Rorty, R. (1998). Pragmatism. In E. Craig (Ed.), Routledge encyclopedia of philosophy (Vol. VII, pp. 633–640). Rorty, R. (2000). Religious faith, intellectual responsibility and romance. In K. Oehler (Ed.), William James. Pragmatism. A new name for some old ways of thinking (pp. 213–234). Rorty, R. (2014). Pragmatism, categories and language. In S. Leach & J. Tartaglia (Eds.), Mind, language, and metaphilosophy: Early philosophical papers (pp. 16–38). Rosenbaum, S. (2009). Pragmatism and the reflective life. Rost, S. (2003). John Deweys Logik der Untersuchung für die Entdeckung des Politischen in modernen Gesellschaften. Roth, J. K. (1969). Freedom and the moral life. The ethics of William James. Roth, R. J. (1962). John Dewey and self-realization. Royce, J. (1976). The world and the individual (Vol. II). Nature, man and the moral order. Ryan, A. (1995). John Dewey and the high tide of American liberalism. Scheffler, I. (1965). Conditions of knowledge. Schmitz, H. W. (1985). Victoria Lady Welby’s significs: The origin of the signific movement. In V. L. Welby (Ed.), Significs and language (pp. cxlviii–clviii). Segrest, S. P. (2010). America and the political philosophy of common sense. Silverman, K. (1983). The subject of semiotics.

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Simonson, P. (2001). Varieties of pragmatism and communication: Visions and revisions from Peirce to Peters. In D. K. Perry (Ed.), American pragmatism and communication research (pp. 1–26). Singer, M. G. (1985). Truth, belief, and inquiry in Peirce. Transactions of the Charles S. Peirce Society, 21(3), 383–406. Skowroński, K. P. (2009). Values and powers: Re-reading the philosophical tradition of American pragmatism. Slater, M. R. (2009). William James on ethics and faith. Sleeper, R. W. (1986) The necessity of pragmatism. John Dewey’s conception of philosophy (pp. 181–200). Smith, J. E. (1963). The spirit of American philosophy. Smith, R. (1977). The pragmatic maxim in 1878. Transactions of the Charles S. Peirce Society, 13(2), 94–111. Sørensen, B., & Thellefsen, T. (2004). Making the knowledge profile of C. S. Peirce’s concept of esthetics. Semiotica, 151(1), 1–39. Stuhr, J. J. (1994). Rendering the world more reasonable. The practical significance of Peirce’s normative science. In H. Parret (Ed.), Peirce and value theory. On Peircean ethics and aesthetics (pp. 3–15). Taylor, C. (2002). Varieties of religion today. William James revisited. Tejera, V. (1994). The primacy of the aesthetic in Peirce and classic American philosophy. In H. Parret (Ed.), Peirce and value theory. On Peircean ethics and aesthetics (pp. 85–97). Thayer, H. S. (1968). Meaning and action. A critical history of pragmatism. Thompson, P. B. (2002). Pragmatism, discourse ethics and occasional philosophy. In J. Keulartz, M. Korthals, M. Schermer, et al. (Eds.), Pragmatist ethics for a technological culture (pp. 199–216). Welchman, J. (1997). Dewey’s ethical thought. Welchman, J. (2008). Ethics. In J. Lachs & R. Talisse (Eds.), American philosophy: An encyclopedia (pp. 245–251). Welchman, J. (2010). Dewey’s moral philosophy. In M. Cochran (Ed.), The Cambridge companion to Dewey (pp. 166–186). Werner, R. (1979). John Dewey: Pragmatism and justification in ethics – A reconstruction. Personalist. An International Review of Philosophy, Religion and Literature, 60(3), 273–289. West, C. (1989). The American evasion of philosophy. A genealogy of pragmatism. White, H. (2010). William James’s pragmatism: Ethics and the individualism of others. European Journal of Pragmatism and American Philosophy, 2(1), 1–11. Wirth, A. G. (1966). John Dewey as educator. Wirth, U. (1995). Abduction and its application. Journal of Semiotics, 17(3/4), 405–424.

Chapter 5

Applied Pragmatic Ethics in Clinical Ethics Consultation

Now that an overview of the theoretical approaches to good and just action of the three most renowned representatives of classical pragmatism has been given, the following remarks look at the first systematic concepts of clinical ethics consultation. With them, the explicit reception of pragmatic thinking in the US-American theoretical models of clinical ethics consultation becomes apparent. The roots of this reception go back to the 1970s. Independent models of pragmatically conceived clinical ethics consultation were not published until the mid-1980s. Although they are outside the period under consideration here, they underscore the thesis formulated at the outset in that these models systematized the confluence of pragmatism and clinical ethics consultation. In his comprehensive study “The Birth of Bioethics”, Albert R. Jonsen analyzes the influence of individual Christian theologians on the early years of bioethics in the United States and concludes: “Three theologians presided over the creation of bioethics”.1 These were the theologian of the Episcopal Church of the United States of America Joseph Fletcher, the theologian of the Methodist Church Paul Ramsey and Richard A. McCormick, Jesuit and Catholic moral theologian.

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Theological Application Theories of Clinical Ethics

All three devoted their extensive complete works to questions of application of clinical ethics. Influenced by a Jesuit casuistic moral theology, Richard McCormick was significantly involved in the development of a proportionalist decision theory in the period after the Second Vatican Council.2 With it he denied the belief that fact

1

Jonsen (1998), p. 41. Cf. McCormick (1999), pp. 181–199. Tully (2006), pp. 113 and 114. Fuchs (1990), pp. 122 and 123.

2

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alone makes an action morally wrong. Rather, the act becomes morally wrong when, all things considered, there is no proportionate reason in the act to justify its unworthiness.3 It is not the actual act per se but its situational embeddedness that constitutes the ethical object of evaluation.4 Although echoes of what has already been said can be found, McCormick developed his position not from an engagement with pragmatism but from the scholastic sources of Catholic moral theology.5 He variously defended the application of proportionalism in bioethical fields. He also took a position on clinical ethics consultation on several occasions. McCormick pleaded for the establishment of such counseling structures and processes in the health care system in order to be able to duly comply with a practice of ethical judgment in the everyday life of the health care system, which has to be carefully justified according to the situation.6 With Paul Ramsey, McCormick edited the anthology “Doing Evil to Achieve Good. Moral Choice in Conflict Situations” on the evaluation of direct and indirect participation in the act.7 Paul Ramsey also shares the concern for a situationally grounded theory of ethical judgment. As early as 1970, in his influential book “The Patient as Person”, he wrote: “Medical ethics today must, indeed, be ‘casuistry’; it must deal as competently and exhaustively as possible with the concrete features of actual moral decisions of life and death and medical care.”8 In accordance with the Protestant-Methodist theology Ramsey argues his fundamental moral considerations more strongly from the biblical theology of revelation: The love for the fellow human being forms the starting principle of all ethics.9 He locates ethical judgement in the double relationship to principle orientation and casuistic application10 which he exemplifies in the decision-making process concerning Karen Ann Quinlan.11 In “Deeds and Rules in Christian Ethics” Ramsey deals intensively with Joseph Fletcher’s situational ethics. He evaluates this summarizing: “Fletcher’s announced program in ethics is to attach an exception-making criterion to every summary rule or principle.”12 Although Fletcher places the commandment of love at the centre of his ethics and accepts the validity of individual rules to safeguard this principle, he at the same time pleads for a fundamental, normative situation-binding nature of these rules. Ramsey criticizes Fletcher for citing individual examples and conditions in which situational exceptions to rules apply—e.g., lying to save a life—but failing to provide a criterion for when an exception to the rule applies. Despite various,

3

Cf. McCormick (1993), p. 230. Cf. Duffey (1990), pp. 148–162. Cf. McCormick (1973), pp. 70–106. 5 Cf. Cahill (1993), p. 101. 6 Cf. McCormick (1987), pp. 73 and 74. McCormick (1984), p. 150. 7 Cf. McCormick (1978), p. 262. 8 Ramsey (1970), p. xvii. Cf. Churchill (1977), p. 129. Hepp (1999), pp. 149 and 150. 9 Cf. Ramsey (1952), p. xi. Meilaender (1991), pp. 133–156. Werpehowski and Crocco (1994), p. x. 10 Cf. Long (1993), pp. 128 and 129. 11 Cf. Ramsey (1980), pp. 289–298. 12 Cf. Ramsey (1983), p. 220. 4

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sometimes serious differences in the positions of Paul Ramsey and Joseph Fletcher, who were sometimes “at opposite ends of a spectrum of doctrine and opinion”,13 they were united by the conviction that bioethics of relevance had to start with concrete application scenarios.14 After discussing McCormick, Ramsey, and Fletcher, Albert R. Jonsen introduces the passages on pragmatism in “The Birth of Bioethics” by saying, “The golden era of American philosophy spanned the last quarter of the nineteenth century and the first quarter of the twentieth.” This epoch cultivated a style of philosophizing that combined an erudite appreciation of the classic philosophers with an appealing public voice about contemporary issues.15

Of the three theologians mentioned, Joseph Fletcher of the University of Virginia devoted himself to translating pragmatic thinking into the application discourses of bioethics.16 Jonathan D. Moreno attests to his work being “strongly influenced by Dewey.”17 Mary Faith Marshall puts this influence into perspective by tracing the eclectic approach of his argumentation: “He was adept at appropriating particular components of various philosophical and theological doctrines and fashioned them into a unique conception.”18 Nevertheless, his situational ethical thinking remained strongly influenced by pragmatism. From William James, in particular, he adopted moral individualism as well as the rejection of moral determinism, from John Dewey the conviction of the hypothetical character of moral norms, which can assert their claim to truth only through articulable experiences.19 Due to this confrontation, the dimension of the individual, of the situationally occurring execution of life gains enormous importance for the formation of ethical judgement. Eberhard Schockenhoff aptly describes Joseph Fletcher’s influence on the bioethical debates of his time: He detached the controversial issues of medical ethics from the background in which their moral-theological treatment had hitherto found a fixed place. These are now discussed not within the framework of the fifth and sixth commandments of the Decalogue, but on the basis of individual liberties. Through this change of perspective, Fletcher takes up the philosophical tradition prevalent in Anglo-Saxon ethics and applies it to various biomedical spheres of action. In place of generally applicable norms that give people binding information about what they should or should not do in the individual spheres of action, there is the situation-specific decision of enlightened individuals who are to be informed about all aspects of the choices open to them.20

13

Jonsen (1998), p. 55. Cf. Jonsen and Jameton (2004), p. 1527. Cf. Ramsey (1968), pp. 125–135. 15 Jonsen (1998), p. 68. 16 Cf. Toulmin (1997a), p. 102. 17 Moreno (2005), p. 66. 18 Marshall (1993), p. 36. 19 Cf. Marshall (1993), pp. 41 and 42. 20 Cf. Schockenhoff (2013), p. 39. Fletcher (1979), pp. 3–33. 14

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Fletcher had presented the main features of his approach in the thematically closely related publications “Situation Ethics. The New Morality” (1966) and “Moral Responsibility. Situation Ethics at Work” (1967). Already in the preface of “Situation Ethics” Fletcher points out that, having previously quoted from the pragmatism lectures of William James, he was not willing to present an ethical system but an ethical method.21 He describes this method, which he calls “situationism,” thus: The situationist enters into every decision-making situation fully armed with the ethical maxims of his community and its heritage, and he treats them with respect as illuminators of his problems. Just the same he is prepared in any situation to compromise them or set them aside in the situation if love seems better served by doing so.22

Since the principle of interpersonal love—so to speak the Christian semantics of Peirce’s Summum Bonum23—is the horizon of unity and goal of all ethics,24 and since this only occurs in concrete relational events, thus evading objectification, it is necessary to think about how the realization of this principle can be secured in the historically conditioned contexts of the present.25 Fletcher therefore does not represent a radical situationism in the sense that the situation for itself and out of itself gives the reflector an answer to the right and good action, but that it is to be read as an event in the stream of experience of human behaviour interpretation and bound to the commandment of love.26 The core of his methodological approach is formed by four premises, which he calls “Working Principles”. He places pragmatism before the principles of relativism, positivism, and personalism by emphasizing, “In the first place, this book in consciously inspired by American pragmatism.”27 The author himself, it continues, has been influenced since his student days by the epistemology of the three great pragmatists Charles Sanders Peirce, William James, and John Dewey. They taught him that pragmatism is not a value-bound worldview, but a method that prompts one to first pose and clarify the question of the purpose of actions to subsequently arrive at concrete answers that are relevant to action. Although Fletcher only directly quotes the texts of the classical pragmatists in selected places, their foundations run through the chapters of “Situation Ethics. The New Morality” and “Moral Responsibility. Situation Ethics at Work”. From their fundus he constructed his drafts for the ethical theory of clinical ethics consultation.28 It is therefore not surprising that the book “Situation Ethics” concludes with a quotation from Dewey and Tufts’ “Ethics” (1908). This quote can be read as a 21

Cf. Fletcher (1966), pp. 7 and 11. Fletcher (1966), p. 26. 23 Cf. Fletcher (1968a), p. 260. Fletcher (1968b), pp. 329–333. 24 Cf. Fletcher (1967), pp. 11–21. Fletcher (1982), pp. 9 and 10. McCormick (1968), pp. 140 and 141. 25 Cf. Loewy and Springer Loewy (2005), p. 43. Outka (1968), p. 57. 26 Cf. Jonsen (2001), p. 119. Fletcher and Brody (1995), p. 401. 27 Fletcher (1966), p. 40. 28 Cf. Smith (1990), pp. 167–169. 22

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statement of Fletcher’s belief: If inquiries into good and right action are to be built on a firm foundation, the theorist must begin, he argues, with the problems people encountered in their behavior. He can define and refine them, divide and systematize them, contextualize and abstract them, but if he detaches the problems from concrete experience, he is talking about the self-invented and not about morality.29

5.2

Pragmatic Application Theories of Clinical Ethics

Like Fletcher, who as an evangelical theologian made use of the thought processes of classical pragmatism, others who were interested in basic theories of applied ethical questions in clinical care also proceeded. If one looks at the representatives of philosophical pragmatism, they do not in fact have their own field ethics for medical issues until the end of the 1970s.30 The path to systematization rather runs from the practice of clinical ethics consultation to its theoretical foundation.31 Only in this way do models of clinical ethics consultation emerge which decidedly fall back on pragmatic considerations. While Joseph Fletcher had merely pointed out the theoretical connection between pragmatic deliberation and clinical ethics consultation, other authors sought a more precise understanding of this connection. The following receptions of pragmatic ideas in U.S. bioethics go beyond the period under investigation here. Their outline shows that the theoretical foundation of the ethical theory of clinical ethics consultation was largely an afterthought, i.e., it was carried out more as a reaction to the three stages shown in Part I. In 1978, Richard M. Martin, a neurologist at the Medical College of Georgia, referred to John Dewey and the University of Michigan philosopher William Frankena in his article “A Clinical Model for Decision-Making”32 and combined their ideas with a decision-making model by the Methodist theologian William Waldo Beach at Duke University. This diffuse reception of pragmatism in applied medical ethics was soon followed by more profound work. Cambridge philosopher Stephen E. Toulmin wrote his dissertation on “An Examination of the Place of Reason in Ethics” (1950). Comparable to the inductively creative role of imagination among classical pragmatists, Toulmin also tests the various courses of action devised to solve a problem of action by the extent to which their strategies of practice can lead certain ways of life to satisfaction and fulfillment or minimize or eliminate misery and frustration. Although there are only a few references to John Dewey in the work33 Toulmin appeals for the ultimately preferred course of action to be tested

29

Cf. Fletcher (1966), p. 159. Cf. Oppenheim (2005), p. 237. 31 Cf. Schermer and Keulartz (2002), p. 42. 32 Cf. Martin (1978), p. 200. 33 Cf. Toulmin (1964), pp. 49 and 51. 30

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against the results of an empirical investigation to ensure that it is suitable for the pursuit of a desired way of life on convincing grounds.34 In later writings he referred to the parallel with pragmatism.35 After Toulmin was appointed in to the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research (1974–1978) the mid-1970s,36 the forerunner of the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research discussed above, he increasingly published on ethical issues in health care. Since the National Commission—at the suggestion of Stephen E. Toulmin and Albert R. Jonsen— discussed concrete cases in its meetings,37 Toulmin worked on the theoretical foundation of ethical judgment on the basis of real cases: “By reintroducing into ethical debate the vexed topics raised by particular cases”.38 He dealt intensively, and at times in a polemical tone, with the reviving influence of theories of principle in medical ethics. After the American Medical Association had published its revised “Principles of Medical Ethics” (1903, 1912, 1957, 1980) several times in the course of the twentieth century,39 several authors devoted themselves to the ethical justification of individual principles. The intensive discussion40 of the “Principles of Biomedical Ethics”—first edition 1977—by the authors Tom L. Beauchamp and James F. Childress attracted attention. This approach of a “principle-based (. . .) common-morality theory” applies the heuristics of ethical principles developed in the philosophical and Judeo-Christian-theological tradition to the field of biomedicine. The book, later revised several times, is certainly considered “the most influential locus for this position in U.S. bioethical principle theory.”41 Beauchamps and Childress pursued the concern of identifying core features of moral principles of biomedical fields of action. The approach, which also drew on the work of the National Commission,42 sought to specify, match, and apply the principles so that an argumentative link could be made between the morally challenging situation and the relevant principles.43 Toulmin’s reaction to the first edition was entitled “The Tyranny of Principles”.44 His critical view was directed against a one-sided form of ethical theories of principle, namely against those which claimed unchanging validity and whose practical application could take place free of exceptions and evaluations; an

34

Cf. Toulmin (1964), pp. 222–225. Cf. Toulmin (2004), p. 111. Toulmin (1996), p. 303. 36 Cf. Toulmin (1987), pp. 610–613. Kuczewski (1997), p. 136. 37 Cf. Toulmin (1988), p. 14. 38 Toulmin (1997a), p. 109. Cf. O’Neill (1988), pp. 84–99. Tong (1991), p. 424. 39 Cf. Baker et al. (1999), pp. xxix–xxxi. 40 Cf. Takala (2001), pp. 76 and 77. 41 Bardon (2004), pp. 398 and 399. Cf. Sokol (2012), pp. 9–21. 42 Cf. Engelhardt (2012), p. 14. 43 Cf. Beauchamp and Childress (1979), pp. 3–19. 44 Cf. Toulmin (1981), pp. 31–39. MacIntyre (1984), pp. 500–509. 35

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accusation which did not apply to the “Principles of Biomedical Ethics”. James F. Childress therefore replied: “In short, this casuistry-based attack on tyrannical principalism focuses on its absolutist versions rather than on versions that view principles and rules as prima facie binding and require balancing or other modes of interpretation in situations of decision.”45 This leads to the fact that the principleoriented approach presented there by no means excludes the procedural one completely.46 This was shown concretely in questions of application of medical ethics: James F. Childress expressly pleaded for the establishment of clinical ethics consultation.47 His most comprehensive elaboration of a situation-based ethics was presented by Toulmin together with Albert R. Jonsen in the book “The Abuse of Casuistry. A History of Moral Reasoning”. In this foray through the ancient philosophical and Christian theological foundations of this kind of decision-making shaped by case comparisons, the last chapter is devoted to an outlook on the future use of casuistry.48 Drawing on William James’s lecture “The Moral Philosopher and the Moral Life” and on Bernard Williams’s work “Ethics and the Limits of Philosophy” (1985), the authors confront the criticism that casuistic action theory must be able to explain that there are preferred ethical categories that do not remain limited to the case alone. This goes hand in hand with the need to clarify the way in which these categories can be criticized. Taking on this task, Toulmin and Jonsen finally unfold a “Revival of Casuistry.”49 They speak of a revival because since the 1960s—first and foremost in medicine—new fields of action have emerged that have called previous patterns of moral justification into question.50 Joseph Fletcher, Paul Ramsey, the Kennedy Institute of Ethics at Georgetown University and the Hastings Center in New York have done pioneering work in the field of a new foundation of applied medical ethics with their contributions. Toulmin also participated in interdisciplinary, empirical, clinical studies. “Standards of Care” compared clinical decision-making patterns in patient care. The research group carried forward their concern that clinical decisions were significantly influenced by the hospital’s legal representatives after the physician’s request. The study argues for strengthening clinical decision-making authority locally. The ethics advisor would have a crucial role in this, so it recommended.51 A year later, Toulmin dealt in detail with clinical ethics consultation, comparing the responsibilities of ethical case discussion and clinical ethics committees and, in the spirit of

45

Childress (1994), pp. 83 and 84. Cf. Arras et al. (2003), p. 41. 47 Cf. Childress (1985), p. 278. Winkler and Gruen (2005), pp. 117 and 118. 48 Cf. Jonsen and Toulmin (1988), pp. 281–283. 49 Cf. Jonsen and Toulmin (1988), pp. 304–332. 50 Cf. Toulmin (1997b), pp. 48 and 49. 51 Cf. La Puma et al. (1988), p. 124. 46

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John Dewey, arguing for a permanent link between clinical ethics committees and the concrete therapy discussions of ethical case consultation.52 Toulmin undoubtedly contributed to systematically underpinning the importance of a pragmatic decision theory in direct patient care.53 At the transition from the 1980s to the 1990s, several authors subsequently formulated their own decision matrices for process-driven clinical ethics consultation.54 As an example, this phase can be reconstructed on the basis of the anthology “Pragmatic Bioethics”, to which Jonathan D. Moreno, Joseph J. Fins, D. Micah Hester, John D. Arras and other authors inclined towards pragmatism had contributed.55 In addition, the medical ethicist Jonathan D. Moreno, who did his doctorate on Charles Sanders Peirce’s theory of signs, published some theoretical and empirical studies on clinical ethics consultation and pragmatic action theory. In particular, the idea of the collective deliberative process of approximate truth-finding through democratic procedures, developed by Dewey following Peirce, is the focus of his interest. In doing so, he discusses the objectives of ethical case consultation. He asks whether this could consist in a consensus of all participants at the end of the deliberation process. After an analysis of the different meanings of “consensus” in case consultation,56 he argues: placing ethics committees in the context of Dewey’s philosophy of social intelligence suggests that consensus should be regarded primarily as a condition rather than as the goal of inquiry.57

The goal of ethical deliberation processes cannot be the standardization of opinions. The goal to be striven for should rather be to reach an end of the exchange of opinions that in the best case formulates a proposal for a solution shared by all participants.58 A consensual, unanimous agreement would only have to exist regarding the method used for the intersubjective search for truth.59 In the mid-1990s, Joseph J. Fins, a medical ethicist and psychiatrist at Presbyterian Hospital-Weill Cornell Medical Center in New York, developed the case review methodology of “clinical pragmatism” with explicit reference to John Dewey’s stepby-step process for arriving at true knowledge outlined in “How We Think” (1933) and to the fallibilism proviso articulated in “The Quest for Certainty” (1929).60 Adapted from the differential diagnosis process, the methodology (“ethics 52

Cf. LaPuma and Toulmin (1989), p. 1112. Cf. Toulmin (1976), p. 37. Toulmin (1994), pp. 315–317. Mahowald (1994), pp. 68–71. 54 Cf. Drane (1994), pp. 47–56. 55 Cf. McGee (2003), pp. xv–xvi. Inguaggiato et al. (2019), p. 428. 56 Cf. Mitchell (1976), p. 23. 57 Moreno (1988), p. 411. Cf. Moreno (1990), p. 42. Moreno (1991b), pp. 54 and 55. Moreno (1995), pp. 70 and 117. Moreno (2003), pp. 15 and 16. 58 This is still seen as the goal of ethical case consultation, Hook (2013), p. 32. 59 Cf. Moreno (1988), p. 428. Moreno (1991a), p. 406. 60 See Miller et al. (1996), pp. 47–50. Fins et al. (1995), pp. 565 and 566. Miller et al. (1997), pp. 21–38. 53

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differential diagnosis”) goes through the steps of “Data collection, Interpretation, Negotiation, Intervention, Periodic review”.61 Fins thus presents a fully elaborated, application-oriented model of an ethical case discussion based on pragmatic thinking. Moving in a similar direction, D. Micah Hesters, philosopher at the University of Arkansas for Medical Science, also refers to “How We Think” (1933). He develops a theory of ethical case discussion for training purposes and thus connects the fields of ethical case consultation and ethical training. Following Dewey’s lead, he structures case discussion as follows: Confronting a problem, defining the problem, presenting alternative responses regarding the problem, weighing the reasons for the alternatives, testing or implementing the solution.62 He later systematized his approach in “Community as Healing. Pragmatist Ethics in Medical Encounters”63 and, drawing on radical empiricism in William James and ethical action theory in John Dewey, specifically on ethical issues at the end of life in “End-of-Life Care and Pragmatic Decision Making” (2009).64

References Arras, J. D., Steinbock, B., & London, A. J. (2003). Moral reasoning in the medical context. In J. D. Arras, B. Steinbock, & A. J. London (Eds.), Ethical issues in modern medicine (6th ed., pp. 1–41). Baker, R. B., Caplan, A. L., Emanuel, L. L., et al. (1999). Introduction. In R. B. Baker, A. L. Caplan, L. L. Emanuel, et al. (Eds.), The American medical ethics revolution: How the AMA’s code of ethics has transformed physician’s relationship to patients, professionals, and society (pp. xiii–xl). Bardon, A. (2004). Ethics education and value prioritization among members of U.S. hospital ethics committees. Kennedy Institute of Ethics Journal, 14(4), 395–406. Beauchamp, T. L., & Childress, J. F. (1979) Principles of biomedical ethics. Cahill, L. S. (1993). On Richard McCormick: Reason and faith in post-Vatican II Catholic ethics. In A. Verhey & S. E. Lammers (Eds.), Theological voices in medical ethics (pp. 78–105). Childress, J. F. (1985). Protecting handicapped newborns: Who’s in charge and who pays? In A. Milunsky & G. J. Annas (Eds.), Genetics and the law III (pp. 271–281). Childress, J. F. (1994). Principles-oriented bioethics. An analysis and assessment from within. In E. R. DuBose, R. P. Hamel, & L. J. O’Connell (Eds.), A matter of principles. Ferment in U.S. bioethics (pp. 72–98). Churchill, L. R. (1977). Tacit components of medical ethics: Making decisions in the clinic. Journal of Medical Ethics, 3(1), 129–132. Drane, J. F. (1994). Clinical bioethics. Theory and practice in medical ethical decision making.

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Cf. Fins and Miller (2000), p. 72. Fins (1998), pp. 68–70. Similarly, Holmes (1979), pp. 1131–1138. 62 Cf. Hester (2008), pp. 25 and 26. 63 Cf. Hester (2001), pp. 1–38. 64 Cf. Hester (2009), pp. 14–23 and 32–39 and 46–49.

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Duffey, M. K. (1990). A study of the principle of double effect. Its evaluation in contemporary philosophical ethics and Catholic moral theology, and especially its role in the thought of Richard McCormick. Engelhardt, H. T. (2012). Beyond the principles of bioethics: Facing the consequences of fundamental moral disagreement. ethic@, 11(1), 13–31. Fins, J. J. (1998). Approximation and negotiation: Clinical pragmatism and difference. Cambridge Quarterly of Healthcare Ethics, 7, 68–76. Fins, J. J., Bacchetta, M. D., & Miller, F. G. (1995). Framing the physician-assisted suicide and voluntary active Euthanasia debate: The role of deontology, consequentialism, and clinical pragmatism. Journal of the American Geriatric Society, 43(5), 563–568. Fins, J. J., & Miller, F. G. (2000). Clinical pragmatism, ethics consultation, and the elderly patient. Clinics in Geriatric Medicine, 16, 71–82. Fletcher, J. (1966). Situation ethics. The new morality. Fletcher, J. (1967). Moral responsibility. Situation ethics at work. Fletcher, J. (1968a). Reflection and reply. In H. Cox (Ed.), The situation ethics debate (pp. 249–264). Fletcher, J. (1968b). What’s in a rule: A situationist’s view? In G. H. Outka & P. Ramsey (Eds.), Norm and context in Christian ethics (pp. 325–349). Fletcher, J. (1979). Morals and medicine. Fletcher, J. (1982). Situation ethics revisited. Religious Humanism, 16, 9–13. Fletcher, J., & Brody, H. (1995). Clinical ethics. I. Elements and methodologies. In W. T. Reich (Ed.), Encyclopedia of bioethics (Vol. I, pp. 399–404). Fuchs, J. (1990). Conscience and conscientious fidelity. In C. E. Curran (Ed.), Moral theology: Challenges for the future. Essays in honor of Richard A. McCormick (pp. 108–124). Hepp, B. (1999). Bündnisse des Lebens. Medizinethische Perspektiven in den Werken Paul Ramseys. Hester, D. M. (2001). Community as healing. Pragmatist ethics in medical encounters. Hester, D. M. (2008). The “What?” and “Why?” of ethics. In D. M. Hester (Ed.), Ethics by committee. A textbook on consultation, organization, and education for hospital ethical committees (pp. 21–26). Hester, D. M. (2009). End-of-life care and pragmatic decision making. A bioethical perspective. Holmes, C. (1979). Bioethical decision making: An approach to improve the process. Medical Care, 17(11), 1131–1138. Hook, C. C., Swetz, K. M., & Mueller, P. S. (2013). Ethics committees and consultants. Handbook of Clinical Neurology, 118, 25–34. Inguaggiato, G., Metselaar, S., Porz, R., & Widdershoven, G. (2019). A pragmatist approach to clinical ethics support. Overcoming the perils of ethical pluralism. Medicine, Health Care and Philosophy, 22, 427–438. Jonsen, A. R. (1998). The birth of bioethics. Jonsen, A. R. (2001). Casuistry. In J. Sugarman & D. P. Sulmasy (Eds.), Methods in medical ethics (pp. 104–125). Jonsen, A. R., & Jameton, A. (2004). Medical ethics, history of the Americas. II. The United States in the twenty-first century. In S. T. Post (Ed.), Encyclopedia of bioethics (Vol. III, 3rd ed., pp. 1523–1537). Jonsen, A. R., & Toulmin, S. E. (1988). The abuse of casuistry. A history of moral reasoning. Kuczewski, M. G. (1997). Bioethics’ consensus on method. Who could ask for anything more? In H. Lindemann Nelson (Ed.), Stories and their limits. Narrative approaches to bioethics (pp. 134–149). La Puma, J., Schiedermayer, D. L., Toulmin, S. E., et al. (1988). The standard of care: A case report and ethical analysis. Annals of Internal Medicine, 108(1), 121–124. LaPuma, J., & Toulmin, S. E. (1989). Ethics consultants and ethics committees. Archives of Internal Medicine, 149, 1109–1112. Loewy, E. H., & Springer Loewy, R. (2005). Textbook of healthcare ethics (2nd ed.).

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Long, D. S. (1993). Tragedy, tradition, transformism: The ethics of Paul Ramsey. MacIntyre, A. (1984). Does applied ethics rest on a mistake? The Monist, 498–513. Mahowald, M. B. (1994). Collaboration and casuistry. A Peircean pragmatic for the clinical setting. In H. Parret (Ed.), Peirce and value theory. On Peircean ethics and aesthetics (pp. 61–71). Marshall, M. F. (1993). Fletcher the matchmaker or pragmatism meets utilitarianism. In K. Vaux (Ed.), Joseph Fletcher. Memoir of an ex-radical. Reminiscence and reappraisal (pp. 25–53). Martin, R. M. (1978). A clinical model for decision-making. Journal of Medical Ethics, 4, 200–206. McCormick, R. A. (1968). Notes on moral theology. In H. Cox (Ed.), The situation ethics debate (pp. 140–146). McCormick, R. A. (1973). Ambiguity in moral choice. McCormick, R. A. (1978). A commentary on the commentaries. In R. A. McCormick & P. Ramsey (Eds.), Doing evil to achieve good. Moral choice in conflict situations (pp. 193–267). McCormick, R. A. (1984). Ethics committees: Promise or peril? Law, Medicine and Health Care, 12(4), 150–155. McCormick, R. A. (1987). Health and medicine in the Catholic tradition. McCormick, R. A. (1993). On the new encyclical. Orientation, 57(21), 229–231. McCormick, R. A. (1999). Proportionalism: Clarification through dialogue. In C. E. Curran & R. A. McCormick (Eds.), Historical development of fundamental moral theology in the United States (pp. 181–199). McGee, G. (2003). Introduction to the second edition. In G. McGee (Ed.), Pragmatic bioethics (2nd ed., pp. xi–xvi). Meilaender, G. (1991). “Love’s Casuistry”: Paul Ramsey on caring for the terminally ill. The Journal of Religious Ethics, 19(2), 133–156. Miller, F. G., Fins, J. J., & Bacchetta, M. D. (1996). Clinical pragmatism: John Dewey and clinical ethics. Journal of Contemporary Health Law & Policy, 13(1), 27–51. Miller, F. G., Fletcher, J. C., & Fins, J. J. (1997). Clinical pragmatism: A case method of moral problem solving. In J. C. Fletcher, P. A. Lombardo, M. F. Marshall, et al. (Eds.), Introduction to clinical ethics (2nd ed., pp. 21–38). Mitchell, B. (1976). Is a moral consensus in medical ethics possible? Journal of Medical Ethics, 2, 18–23. Moreno, J. D. (1988). Ethics by committee: The moral authority of consensus. The Journal of Medicine and Philosophy, 13(4), 411–432. Moreno, J. D. (1990). What means this consensus? Ethics committees and philosophic tradition. The Journal of Clinical Ethics, 1(1), 38–43. Moreno, J. D. (1991a). Consensus, contracts, and committees. The Journal of Medicine and Philosophy, 16(4), 393–408. Moreno, J. D. (1991b). Ethics consultation as moral engagement. Bioethics, 5(1), 44–56. Moreno, J. D. (1995). Deciding together. Bioethics and moral consensus. Moreno, J. D. (2003). Bioethics is a naturalism. In G. McGee (Ed.), Pragmatic bioethics (2nd ed., pp. 3–16). Moreno, J. D. (2005). Is there an ethicist in the house? On the cutting edge of bioethics. O’Neill, O. (1988). How can we individuate moral problems. In D. M. Rosenthal & F. Shehadi (Eds.), Applied ethics and ethical theory (pp. 84–99). Salt Lake City. Oppenheim, F. M. (2005). Reverence for the relations of life. Re-imagining pragmatism via Josiah Royce’s interactions with Peirce, James, and Dewey. Outka, G. H. (1968). Character, conduct, and the love commandment. In G. H. Outka & P. Ramsey (Eds.), Norm and context in Christian ethics (pp. 37–66). Ramsey, P. (1952). Basic Christian ethics. Ramsey, P. (1968). The case of the curious exception. In G. H. Outka & P. Ramsey (Eds.), Norm and context in Christian ethics (pp. 67–135). Ramsey, P. (1970). The patient as person. Explorations in medical ethics. Ramsey, P. (1980). Ethics at the edge of life. Medical and legal intersections (4th ed.). Ramsey, P. (1983). Deeds and rules in Christian ethics.

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Schermer, M., & Keulartz, J. (2002). How pragmatic is bioethics? The case of in vitro fertilization. In J. Keulartz, M. Korthals, M. Schermer, et al. (Eds.), Pragmatist ethics for a technological culture (pp. 41–68). Schockenhoff, E. (2013). Ethik des Lebens. Grundlagen und Herausforderungen (2nd ed.). Smith, G. P. (1990). The ethics of ethics committees. Journal of Contemporary Health Law & Policy, 6(1), 157–170. Sokol, D. K. (2012). Doing clinical ethics. A hands-on guide for clinicians and others. Takala, T. (2001). What is wrong with global bioethics? On the limitations of the four principles approach. Cambridge Quarterly of Healthcare Ethics, 10(1), 72–77. Tong, R. (1991). The epistemology and ethics of consensus. Uses and misuses of “Ethical” expertise. The Journal of Medicine and Philosophy, 16, 409–426. Toulmin, S. E. (1964). An examination of the place of reason in ethics. Toulmin, S. E. (1976). On the nature of the physician’s understanding. Journal of Medicine and Philosophy, 1(1), 32–50. Toulmin, S. E. (1981). The tyranny of principles. Hastings Center Report, 11(6), 31–39. Toulmin, S. E. (1987). The National Commission on Human Experimentation: Procedures and outcomes. In H. T. Engelhardt & A. L. Caplan (Eds.), Scientific controversies. Case studies in the resolution and closure of disputes in science and technology (pp. 599–614). Toulmin, S. E. (1988). Medical ethics in its American context. An historical survey. Annals of the New York Academy of Sciences, 530, 7–15. Toulmin, S. E. (1994). Casuistry and clinical ethics. In E. R. DuBose, R. P. Hamel, & L. J. O’Connell (Eds.), A matter of principles. Ferment in U.S. bioethics (pp. 310–317). Toulmin, S. E. (1996). Rationality and reasonableness: From propositions to utterances. Revue Internationale de Philosophie, 196(2), 297–305. Toulmin, S. E. (1997a). How medicine saved the life of ethics. In N. S. Jecker, A. R. Jonsen, & R. A. Pearlman (Eds.), Bioethics. An introduction to the history, methods, and practice (pp. 101–109). Toulmin, S. E. (1997b). The primacy of practice: Medicine and postmodernism. In R. Carson & C. R. Burns (Eds.), Philosophy of medicine and bioethics. A twenty-year retrospective and critical appraisal (pp. 42–53). Toulmin, S. E. (2004). Reasoning in theory and practice. Informal Logic, 24(2), 111–114. Tully, P. A. (2006). Refined consequentialism. The moral theory of Richard A. McCormick. Werpehowski, W., & Crocco, S. D. (1994). Introduction. In W. Werpehowski & S. D. Crocco (Eds.), The essential Paul Ramsey. A collection (pp. vii–xxv). Winkler, E. C., & Gruen, R. L. (2005). First principles: Substantive ethics for healthcare organizations. Journal of Healthcare Management, 50(2), 109–119.

Chapter 6

Pragmatic Justification of Clinical Decisions: An Attempt at a Response

The balance after three stages (Chaps. 2 and 3) along the history of the development of clinical ethics committees revealed that four indications (practice as the initial situation, multidisciplinarity as a characteristic, consultation as empowerment, the judgment process as an ethical formal principle) point to a practice of clinical ethics consultation that has grown out of pragmatic thinking (Chap. 4). In addition, the study came across two further fields of evidence, which it will present in the following: Field of evidence I points to the regional proximity and the temporal connection between the field of activity of the classical pragmatists and the places of origin of clinical ethics consultation. Afterwards, the field of evidence II turns once again to the receptions from the mid-1980s onwards, which reveal a systematic connection between clinical ethics consultation and pragmatism (Chap. 5). At the end, the balance of Part I flows together with the remarks on the understanding of ethics of the classical pragmatists from Part II in the field of evidence III. All three fields of evidence are intended to support the demonstration that the ethical theory of pragmatism in the USA significantly shaped the understanding of clinical ethics consultation in its early years.

6.1

Field of Evidence I: Pragmatism and the US Northeast

The Northeast of the US is the area encompassing New England and the Mid-Atlantic states. Buoyed by the Industrial Revolution and strong, conflicting trade relations with the British Empire, New England’s manufactories and the heavy industry of the Mid-Atlantic states provided immigrants with new job opportunities in the nineteenth century, contributing to the region’s continuing cultural and ethnic diversity.1 There were also differences from the rest of the United States in political

1

Cf. Meyer (2003), pp. 281–290.

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terms. Abolitionists matured into a powerful political force under the strong influence of Protestant movements (Quakers, Baptists, Mennonites, Methodists). Groundbreaking developments took place on the cultural level. Even before the outbreak of the Civil War, intellectuals such as Ralph Waldo Emerson or Henry David Thoreau developed their skills and thus shaped the understanding of a new US-American literature.2 The geographer and later president of the Association of American Geographers Wilbur Zelinsky described the Northeast in 1955 as the region of the USA that was not only characterized by the earliest, permanent European settlements, but was also to be regarded as a cultural center because of its diversity:3 A center in which the public school system of the USA was founded in the first half of the nineteenth century. A center that was able to acquire an educational characteristic mainly because of its existing and new academic institutions since the founding years of the United States. As before, the density of “existing centers of academic knowledge production”4 is remarkably high compared to other regions of the USA. According to Karin and Dieter Claessens, it was above all the intellectual class in the nineteenth century that sought new “paths to a ‘pragmatic’ or ‘positive’ ethic”.5 Throughout the paper, events in places in the US Northeast that are significant to the emergence of pragmatism and to the emergence of clinical ethics consultation have been mentioned several times. They are summarized here: All three of the classic pragmatists presented here have strong biographical connections to the US Northeast. Charles Sanders Peirce was born in Cambridge, Massachusetts. His father, Benjamin, was a Harvard professor. Charles Sanders also studied at the local university in the “Golden Age at Harvard.”6 Later he himself taught both at Harvard and at Johns Hopkins University in Baltimore. He gave his logic lectures at the Lowell Institute in Boston. The last decades of his life he lived on a farm in Milford (Pennsylvania). One of his former listeners, Josiah Royce, who himself earned a doctorate at Johns Hopkins University and taught philosophy of history at Harvard, arranged for Harvard University to acquire part of the estate. In Cambridge, 17 years after Peirce’s death, the Collected Papers of Charles Sanders Peirce (1931–1935) were published for the first time. Peirce had his thoughts on pragmatism discussed at “The Metaphysical Club” in Cambridge. There the theses that documented the birth of American pragmatism in “How to Make Our Ideas Clear” and “The Fixation of Belief” matured. Peirce’s lifelong friend William James, who also supported him financially in his later years, grew up in the region and culture of the US Northeast as well.7 Born into affluent Manhattan circumstances, he went first to Newport (Rhode Island) for an artistic 2

Cf. Berkin et al. (2015), pp. 282 and 283. Cf. Zelinsky (1955), p. 320. 4 Jöns (2016), p. 322. 5 Claessens and Claessens (1987), p. 19. 6 Cf. Kuklick (1977), pp. 127–337. 7 Cf. Phipps (2016), pp. 12–16. 3

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Field of Evidence II: The Pragmatic Concepts for Clinical Ethics Consultation

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education. He later transferred to the Lawrence Scientific School at Harvard, where he met Charles Sanders Peirce. After traveling through Europe, he completed his medical studies again at Harvard, where he taught in various disciplines until his retirement. William James died in Chocorua (New Hampshire). John Dewey came from Burlington (Vermont), studied at the University of Vermont and received his doctorate at Johns Hopkins University in Baltimore. There he heard Peirce’s lectures on mathematical logic. After teaching in Michigan, Minnesota, and Chicago, he returned to the American Northeast following a call to Columbia University. John Dewey died in New York. Even though there are more than two decades between the death of John Dewey and the Quinlan judgement, it has already been demonstrated in Sect. 4.1 that a large number of secondary literature and editions of works on classical pragmatism appeared during this period. In retrospect, it can be said that a neo-pragmatic as well as a linguistic-pragmatic reconceptualization became possible only through the reception phase of the 1960s and 1970s, which can be regarded as a “revival” of pragmatism. It is striking that this revival of pragmatic thinking is temporally and regionally linked to the first stage in the history of the emergence of clinical ethics committees—even if it cannot be precisely defined, it is nevertheless striking: Pediatrician Karen Teel, who wrote the authoritative article “The Physician’s Dilemma: A Doctor’s View: What Law Should Be,” referred in her text to a decision to limit therapy for a newborn with Down syndrome at Johns Hopkins Hospital in Baltimore. Both Karen Ann Quinlan’s medical care and the legal battle over her took place in the state of New Jersey. Two landmarks leading to the current form of clinical ethics consultation were the Optimum Care Committee at Boston’s Massachusetts General Hospital and the Ethics Committee at Beth Israel Hospital in Boston. And finally, the fate of Baby Jane Doe occurred in New York State. It can be stated that both pragmatism and clinical ethics consultation emerged in the geographical area of the US Northeast—more precisely along the Northeast coast of the USA between Boston and Baltimore. It is indisputable that this bullet-point evidence does not in itself provide sufficient proof of the influence of pragmatism on clinical ethics consultation. They merely form a first field of circumstantial evidence which supports the statement that, in addition to the temporal proximity and the parallels in content to be discussed in field of circumstantial evidence III, a geographical proximity is also discernible.

6.2

Field of Evidence II: The Pragmatic Concepts for Clinical Ethics Consultation

Furthermore, it could be shown that only at the end of the last stage of the development of clinical ethics consultation described here a theoretical consideration of its ethical foundations gradually began. The approaches of Stephen E. Toulmin, Jonathan D. Moreno, Joseph J. Fins, D. Micah Hester and John D. Arras were

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mentioned. They further developed the approaches of the previously published method books, for example Howard Brody’s “Ethical Decisions in Medicine”,8 to which Joseph Fletcher wrote the foreword, or the case collections compiled with a didactic purpose, such as the “Case Studies in Medical Ethics” by Robert M. Veatch.9 In recent times, too, works on clinical-ethical deliberation oriented towards pragmatism have appeared again and again.10 Tom Tomlinson, for example, states in his introductory study of methods in medical ethics: “In recent years, there has been an awakening of interest in the use of ‘pragmatist’ approaches in medical ethics”.11 And beyond the field of clinical ethics, the authors of the anthology “Pragmatist Ethics for a Technological Culture” diagnose: “During the past few decades, pragmatism has made a remarkable comeback as a broad philosophical movement, not only in America”.12 That pragmatism primarily wants to be a method of knowing truth from experiential practice was already pointed out by William James at the beginning of his second lecture on pragmatism (1906/1907).13 This early concern to design a method of reflection so that moral, social, aesthetic truth-claims traverse comparable paths of cognition to those of the natural sciences was elaborated by John Dewey in his work “Logic. The Theory of Inquiry” (1938).14 This was followed not only by a number of theoretical drafts on clinical ethics consultation, as presented in the passage “Pragmatic application theories of clinical ethics”, but above all by practice manuals and guidelines. Part I of this thesis therefore aimed to show that this situational indeterminacy was also the starting point of clinical ethics consultation. Both the Supreme Court ruling on Karen Ann Quinlan and the Department of Health and Human Services (HHS) recommendations on the Infant Care Review Committee (ICRC) to the President’s Commission reports and the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) criteria focused on pragmatic solutions to situational clinical dilemmas. The field of evidence II now records the findings of Part II and underlines that from the outset it can be said that “the role of the ethics consultants generally has been pragmatic.”15 Therefore, it is not surprising that many practice guidelines developed later again adopt Dewey’s thoughts. Only bibliographical references can be made to numerous drafts. Examples include the widely used handbook “Ethical Dimensions in the

8

Cf. Brody (1976), pp. v and 5–27. Cf. Veatch (1977). 10 See Misak (2008), pp. 614–632. Misak (2010), p. 392. McGee (2003), pp. 30 and 31. Tollefsen (2000), p. 89. Hester (2003), pp. 558–560. Cooke (2003), p. 651. Trotter (2003), pp. 665 and 666. 11 Tomlinson (2012), p. xiv. 12 Keulartz et al. (2002), p. 11. 13 Cf. James (1975), p. 31. 14 Cf. Dewey (1986b), pp. 105–122. 15 Kanoti and Younger (1995), p. 405. 9

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Field of Evidence III: Pragmatism and the Ethical Theory of. . .

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Health Professions”,16 the Basel Guidelines17 and the “7 Steps Dialogue”,18 which emerged from the experience of clinical practice. In each model, a pragmatic structure of ethical truth-finding can be identified.19 All follow the principle that “A pragmatist ethics is more process- than product-oriented.”20 In the late 1980s, the focus of many US ethics committees shifted.21 More emphasis was placed on the development of internal hospital recommendations for action and policy documents.22 This move, in keeping with pragmatic thinking, was a logical step in addressing ethical dilemmas. Rules, Dewey had emphasized, are an expression of habitual forms of action control. They grow out of repeated experiences of successfully coping with problematic situations. The field of evidence II now wants to point to this: All three fields of clinical ethics consultation (case consultation, recommendations for action, further training) have their origin both historically (as shown in the three stages) and systematically (in close connection with John Dewey’s pragmatic understanding of experience-based judgement, moral rules and moral education) in situational uncertainty. The concrete “cases” are the starting points of all clinical ethics consultation, its case consultations, its recommendations for action or guidelines, and its continuing education concepts.23

6.3

Field of Evidence III: Pragmatism and the Ethical Theory of Clinical Ethics Consultation

“John Dewey, William James, and Charles Sanders Peirce have come to visit the clinic and find much to criticize.”24 With these words Susan M. Wolf describes the rise of a new pragmatism in US medical law and ethics debates in her contribution “Shifting Paradigms in Bioethics and Health Law”. At the end of Part I, it was summed up that four substantive indications in the formative phase of clinical ethics consultation bear pragmatic theoretical traits. By embedding these now in a résumé, an answer to the question posed at the outset (“Which ethical theory shaped the understanding of clinical ethics consultation in its early years?”) will be formulated.

16

Cf. Purtilo and Cassel (1981), pp. 27 and 28. Cf. Reiter-Theil (2005), p. 350. 18 Cf. Baumann-Hözle (2009), pp. 222–234. 19 Cf. Aroskar (1980), p. 659. Research papers in nursing science now also adopt the pragmatic foundations of ethical judgment, cf. Anderlik (2001), pp. 51 and 52. 20 Keulartz et al. (2002), p. 15. Cf. Arras (2003), pp. 75 and 76. 21 Cf. Cohen (1988), p. 23. 22 Cf. Thompson et al. (1992), p. 207. 23 Cf. Fost (1992), p. 289. DeGrazia and Beauchamp (2001), p. 39. Burns (2000), p. 176. 24 Wolf (1994), p. 398. 17

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Indicator I: The Situational Practice as the Initial Situation

It was shown that case consultation was the starting point of clinical ethics committees. It was the attempt to respond to directly patient-related care dilemmas in everyday clinical practice.25 The studies of recent years have been able to show that there are not an arbitrary number of issues that have been brought to clinical ethics consultation as situational dilemmas. The omission, discontinuation or implementation of a treatment, the change of therapy goal and the question of therapy benefit, the renunciation of resuscitation, the dispute about decision-making competence, problems of patient autonomy and family conflicts were among the most frequent occasions for case consultation.26 For pragmatic thinking, situations are what make objects or events appear in their contextual whole.27 Both the situational factual content and the rational meaning content related to it are viewed from their effects.28 For the field of ethics consultation, this assumption emerged most clearly in the Quinlan ruling, when the Justices of the Supreme Court of New Jersey ordered a Clinical Ethics Committee to serve as a prognostic committee. Without repeating what has been said about situational location, it should be noted that this very aspect echoes a consideration of Charles Sanders Peirce. He understood the situation under consideration as a delimitable space of cognition.29 Accordingly, what is ethically justifiable must be measured by the purposes of action. “Ethics is the study of what ends of action we are deliberately prepared to adopt”,30 Peirce had said in his lectures on pragmatism. In line with his theory of truth, Peirce also refuses to align the ends of action solely with subjective desires at the level of practice.31 William James broadened this focus of action and linked it to a practical life theory of need: “the essence of good is simply to satisfy demand.”32 The guiding principle of philosophical ethics is realized through the best possible satisfaction of all needs. Both the prognosis orientation of ethical counselling in the Quinlan judgement and the therapy goal discussions (Baby’s Doe) in ethical case counselling show the impact character of pragmatic judgement in clinical ethical counselling. In its case consultation methodologies in particular, Clinical Ethics Consultation assumes that the situation must be comprehensively described and thus linguistically signified, i.e. intersubjectively accessible. As shown, John Dewey specified this approach,

25

Cf. Fletcher and Moseley (2003), pp. 106–109. Cf. Swetz et al. (2007), p. 689. Hurst et al. (2007), pp. 52 and 55. 27 Cf. Hickman (2002), p. 28. Hick (2007), p. 302. 28 Cf. Rorty (1999), p. 32. 29 Bernstein (2011), p. 52. 30 Peirce (1973), p. 170. 31 Cf. Aydin (2009), pp. 438 and 439. 32 James (1956), p. 201. 26

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Field of Evidence III: Pragmatism and the Ethical Theory of. . .

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which is guided by the methodological persuasiveness of scientific research33 and argued that every social science and humanities procedure for gaining knowledge is also initiated by situations in which previous strategies for thinking and acting are perceived as having limited usefulness. At the latest with the publication of the “Baby Doe Regulation II” and the recommendation of the establishment of “Infant Care Review Committees” at the federally supported hospitals, the idea that the participants of the consultation process can gain a more secure access to the situation perceived as problematic in the creative use of their subjective reason, through hypotheses and logical conclusions was introduced into the course of ethics consultation. To do this, the situation should be considered in its contextual effects, which in turn requires the comprehensive gathering of medical, nursing, legal, biographical, social and psychological information. The “screening out” of the situation already called for in the Quinlan judgment is reminiscent of John Dewey’s theory of deliberation, which sees the ethical evaluation of the situation as embedded in the dialectically progressive process of adaptation between assumptions, doubts and new assumptions. To this end, Dewey had drawn on the conviction put forward by Charles Sanders Peirce and Alexander Bain that human cognition manifests and stabilizes itself in interactions between the individual and the environment in order, in the reconciliation of cognitions, to eventually arrive at a coping strategy for the original dilemma. This basic duct of a decision-making methodology, as Dewey describes it in “Logic. The Theory of Inquiry” (1938), was followed by the aforementioned case consultation models.34 Situational practice with its uncertainties to be overcome is thus the starting point of both the pragmatic process of cognition and clinical ethics consultation.

6.3.2

Indicator II: Discursive Multidisciplinarity as a Characteristic Feature

Ruth Anna Putnam summarized in a paper on the theory of moral intention regarding William James and John Dewey: to make sense of our moral lives we need to believe that there are other people with whom we share a common world and that our actions can make a difference to what that world will come to. Moral action (good or bad, right or wrong) is action that is chosen for reasons, among which are moral judgments, judgments that are as objective, and as fallible, as anything else that human beings believe.35

Pragmatic thinking assumes that situational dilemmas depend on a collective understanding of practical, human reason in order to meet the truth claim of their 33

Cf. Bernstein (1966), pp. 115–129. Dewey (1972), p. 53. Eddy (2016), pp. 37–39. Cf. LaPuma and Schiedermayer (2012), p. 254. 35 Putnam (1999), p. 68. 34

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management. Peirce had already introduced his concept of abductive cognition as a collective process. The ethically right action is to be sought on the path where the subject enters into a process of continuous verification of the reality-appropriateness of statements. The plurality of approaches to knowledge that James had so emphasized, and the possibility of fallibility, allow this process to continue indefinitely.36 Peirce drew the ideal of an infinite community of inquirers, i.e. of all those interested in true statements, who in argumentative exchange about comparable facts and objects gradually find a more and more coherent and comprehensive approach to reality. As seen, William James extended the formal procedural understanding of ethical truth-oriented thinking by the relevance of everyday experiences.37 No longer were the scientific researchers the sole thinking subjects of good and just action, but all subjects who come into contact with the practice of human life. The intersubjectively articulable everyday situations of the subjects concerned and capable of conceptual abstraction moved into the focus of a pragmatic theory of ethics. Following Peirce, he pleaded for the consideration of the effect of actions, which meant that something was made true in a process itself. It is “veri-fied.”38 Something acquires validity in action theory and practice by being asserted. “Truth for us is simply a collective name for verification-processes”.39 An interview study on clinical ethics consultation at German hospitals came to the following conclusion: On the one hand, the recognition of the incommensurability of different forms of practice and reflection perspectives is celebrated. HECs deal with the structural impossibility of generating a total perspective from different professional and practical perspectives. In contrast, the functional meaning of HECs appears to be to accomplish communicatively and to be decidedly able to forbear the use of such a perspective.40

Ethical counselling has to struggle with this paradox. The factual incompatibility of different practices and perspectives of reflection into a unified overall view, which occurs in everyday clinical practice, is contrasted by the functional significance of the ethical consultation processes, which are actually able to pursue the purpose of a multi-perspective “screening out” that is as comprehensive as possible in communicative terms. In all stages of the history of the development of clinical ethics committees, the multidisciplinary character was a characteristic of this form of consultation. In her contribution, Karen Teel had already proposed an “Ethics Committee composed of physicians, social workers, attorneys, and theologians”41 and Edmund D. Pellegrino commented on this demand cited in the Quinlan

36

Cf. Dewey (1984), pp. 221 and 222. Putnam (1999), p. 68. Tiles (1998), p. 640. Cf. James (1975), p. 94. 38 Cf. James (1908), pp. 13–15. Rorty (1983), p. 174. 39 James (1975), pp. 102 and 104. 40 Nassehi et al. (2008), p. 152. 41 Teel (1975), p. 9. 37

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judgement as a “kind of democratization”42 of the application-oriented medical ethics discourse—a diction reminiscent of John Dewey. This emphasis not only highlighted the significant individual perspectives of the various professions involved in patient care, but also the primacy of ethical decisionmaking in the field.43 Following the Department of Health and Human Services’ attempts to intervene in connection with the Doe babies, former President’s Commission Director Alexander Morgan Capron had aptly summarized: “the delays and vagaries in these decisions shows how problematic it would be to rely primarily on the courts to decide about treatment terminations.”44 Strengthened local decisionmaking by self-responsible subjects refers to the pragmatic postulate of Peirce’s, the infinite community of inquirers, which James had translated into life-practical terms and which was directed by John Dewey towards the goal of “warranted assertability”. Dewey added a democratizing element to that process of practical truth-finding that does not seek to delegate concrete ethical expertise to selected experts.45 What he labeled “warranted assertability” pointed to the collective search process of cooperating subjects. Oriented to the will to act rationally, a social intelligence comes into play that makes subjects aware of the added value of social cooperation. In the words of the medical ethicist Jonathan D. Moreno: “a Deweyan social philosophy would recast the notion of consensus altogether as primarily a condition of cooperative ethical deliberation”.46 This concept carries out what was implied in the expression of the “common moral judgment of the community at large”47 spoken of by the New Jersey Supreme Court. With the Quinlan judgment, the multiperspectivity of clinical ethics consultation was a desideratum of its institution. Later, in the course of the Babies Doe, it was defended by the associations and societies of the health care system against centralistic interventions, and codified with the 1983 report of the Presidential Commission. In keeping with the democratized and practical interpretation of pragmatic truthtelling, the equal relationship of argumentatively presented assessments allowed biographically and professionally-institutionally shaped subjects to enter the process of truth-telling with their different references to the clinical dilemma. “Ethical authority is grounded in rational persuasion using shared assumptions as starting points”,48 was one of the core beliefs, reminiscent of the universalization principle of discourse ethics according to Jürgen Habermas. At this point, the thesis that clinical ethics consultation originates from the theory of language-pragmatic discourse

42

Pellegrino (1988), p. 3. Cf. Tapper et al. (2010), p. 438. 44 Capron (1985), p. 422. 45 Cf. Thomasma (1991), pp. 138 and 139. Noble (1982), pp. 7–9. McAllen and Delgado (1984), pp. 27–30. 46 Moreno (2005), p. 101. 47 Robinson (1976), p. 308. 48 Reitemeier (2000), p. 250. 43

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ethics49 should be countered by the fact that this theoretical approach had not yet been taken up by the US-American philosophical debates in the period outlined in Part I: “Apel’s and Habermas’ work on discourse ethics was introduced to American readers in the misleadingly titled The Communicative Ethics Controversy, edited by Seyla Benhabib and Fred Dallmayer”50—i.e. in 1990. However, the theory of clinical ethics consultation has to contend with an accusation that has also been formulated against discourse ethics. For example, sociological studies in the 1990s showed that a claim of multidisciplinarity and heterogeneity of opinion formation had not infrequently been undermined by one-sided appointments to ethics committees.51 A survey by the Center for Bioethics (University of Pennsylvania) of 356 US hospitals that offered ethics consultation found: “Some of the most negative responses were reserved for physician arrogance or disrespect of the committee.”52 Or from a nursing perspective, “Fundamental conflicts between groups become labeled as moral conflicts.”53 In the effort to act well and correctly in concrete cases, the practice of clinical ethics consultation rarely occurs without interpersonal tensions between the participants.54 In order not to capitulate from the outset to the impending insurmountability of moral differences,55 there is a need for institutionally binding regulations on the course of tasks and the most concrete possible designation of the necessary prerequisites, so that ethics consultation can succeed in all three fields of action: case consultation, recommendations for action and further training.56 Despite the practical difficulties, every clinical ethics consultation remains bound to the advantage of multidisciplinary consideration and decision-making, as Dieter Birnbacher emphasizes: “Since moral action is subject to natural, social and historical conditions, it is clear that the tasks of a moral pragmatics can only be mastered in a multidisciplinary way”.57 The gathering of perspectives in the argumentative weighing of convictions brings, as Peter J. Riga noted in the wake of the Doe babies, “some form of societal consensus”58 into clinical practice, which otherwise would not be given any systematic space.

49

Cf. Kettner and May (2001), pp. 487–499. Kettner (2002), pp. 57 and 58. Kettner (2011), pp. 48 and 49. 50 Thompson (2002), p. 204. 51 Cf. DeVries and Forsberg (2002), pp. 253–255. Mahowald (1988), p. 798. Moss (1987), p. 644. Gordon and Hamric (2006), pp. 244 and 245. 52 McGee et al. (2002), p. 93. 53 Chambliss (1996), p. 95. 54 Cf. Frader (1992), pp. 41 and 42. Zaner (1996), pp. 273 and 274. 55 Cf. Engelhardt (2005), pp. 226 and 227. Engelhardt (2003), pp. 378–380. 56 Cf. Albisser Schleger et al. (2012), pp. 98–101 and 104. 57 Birnbacher (1998), p. 350. 58 Riga (1984), p. 264.

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Field of Evidence III: Pragmatism and the Ethical Theory of. . .

6.3.3

123

Indicator III: Argumentative Counselling as an Enabling Performance

The term with which this work is concerned already designates an ought to claim: ethics consultation. Unlike institutionally enforceable norms, this advice is merely available. It is an option that the person in charge can choose to support without being able to delegate their responsibility to it. The fundamental “obligation to justify medical and ethical decisions to patients, (. . .) to medical and nursing staff as well as to patients’ relatives”59 remains in the hands of the existing decisionmakers. This type of advice must dispense with institutional sanctions if the person who must decide does not seek or make use of the advice and subsequently opposes its recommendation in terms of content. Nevertheless, the advice contributes argumentative weight to the decision-making process, which the person seeking advice must weigh.60 “Strictly speaking, such recommendations are not binding, but they undoubtedly carry great weight, especially if they are cogently justified.”61 After the Quinlan ruling, debates about the binding nature of the recommendations made by clinical ethics committees began.62 They led away from the prescribed prognosis assessment via clarification of the function of “ethical adviser” or “legal watchdog”63 to the optional advisory service. This change was exemplified by the Bioethics Committee at Montefiore Medical Center in New York and the Optimum Care Committee at Massachusetts General Hospital. There the mandate was that “The committee’s role is entirely advisory, and the responsible physician is free to accept or reject its recommendations.”64 This characteristic was later found in the “Baby Doe Amendment” and thus came to national prominence. The new acceptance of advisory panels is closely related to the “vacuum of authoritative moral leadership”65 in the bioethical debates of the 1970s cited above. This void conditioned the acceptance of process-oriented ethical theories in which the procedure to be accepted was considered the remaining moral authority to be invoked. In order to secure this authority for applied ethical questions in hospital care, clinical ethics consultation, as the Society for Health and Human Values-Society for Bioethics Consultation Task Force pointed out in its position paper (1997) on the “Standards for Bioethics Consultation”, is dependent on three areas of competence (“Core Competencies”), which need to be taught: (1) Three types of “skills” are learned in ethics consultation. “Ethical assessment skills” served to identify and analyze the ethical aspects in patient care cases. “Process skills” aimed at applicable

59

Eibach (2004), p. 23. Cf. Forrow (2002), pp. 245 and 246. Cf. Howe (2000), pp. 179 and 180. 61 Lo (1997), p. 300. 62 Cf. Horan (1977), p. 533. 63 Weir (1987), pp. 105–107. 64 Cassem (1979), p. 86. 65 Baker (2013), pp. 316 and 317. 60

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knowledge of counseling procedures for communicative resolution of ethical conflicts. “Interpersonal skills” help along the entire counseling process to manage the communicative events and to involve the participants in the effort to find a solution. (2) In addition, the person responsible for ethics consultation needs in-depth knowledge (“knowledge”) in the following areas: (a) moral reasoning and ethical theories, (b) bioethical problems and concepts, (c) health care, (d) clinical contexts, (e) knowledge of the institution on site, (f) knowledge of its strategies, beliefs and perspectives on patients and staff, (g) knowledge of relevant statements of the mission statement, ethics guidelines or professional codes of conduct as well as the requirements of accreditation procedures, and (h) health care law.66 (3) The ethics advisor person should be able to bring certain virtues, such as “tolerance, patience, compassion, honesty, courage, prudence, humility, and integrity.”67 If one compares these three areas with the references to classical pragmatism, it can be seen that John Dewey in particular formulated his method of experiencebased truth theory as the basis of an experience-based empowerment pedagogy.68 It addresses all of the areas identified in the Standards for Bioethics Consultation: identifying ethical problems, using appropriate consultation processes, managing the communicative process to find solutions, acquiring knowledge in all necessary subject areas, and developing virtues for personal consultation.69 In Sect. 4.2.2 this was illustrated using passages from the works “Logic. The Theory of Inquiry” (1938), “How We Think” (1933), “Ethics” (1908/1932) and “Human Nature and Conduct” (1922).70 They express: Dewey’s understanding of formative experience is thus related to dealing with unknown situations and situations of conflict that make clear the fragility or inadequacy of previous orientations of action, traditional agreements or ways of life. The views and attitudes inherent in a specific experience can lose their self-evidence when the familiar interplay of subject and object experiences an irritation, resistance or the like. In this respect, the experience of a problem is accompanied by a distancing from the immediate (an)adaptation within the horizon of preferred routines and opens up or requires new creative patterns of behaviour, interpretation or meaning.71

Ethics counselling is such an empowering event. This means viewing the difficulties of everyday reality as something that can be shaped, relativising the individual claim to truth of imagined coping strategies, and critically trusting the collective process of subjects who actively speak out in order to solve problems. This should inform all of the empowerment work of clinical ethics consultation.72 The primary place to realize 66

Cf. Aulisio et al. (2000), pp. 61–64. Aulisio et al. (2000), pp. 64 and 68. Cf. Baylis et al. (2003), pp. 37–44. Larcher and Slowther (2007), p. 4. 68 Cf. Kolb (1984), pp. 4–8. 69 Cf. Cranford and Jackson (1984), p. 21. Rice (1996), pp. 272 and 273. 70 Cf. Dewey (1986b), pp. 105–122. Dewey (1986a), pp. 200–206. Dewey and Tufts (1985), pp. 39–48. Dewey (1983), pp. 15–21 and 43–53. 71 Bünger and Mayer (2009), pp. 839 and 840. 72 Cf. Oelkers (2000), p. 314. McGee (2002), p. 109. 67

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this systematically should be in the field of advanced training. Thus, as early as 1983, Chicago medical ethicist Mark Siegler rightly argued, “The principal role of ethics committees should be a broadly conceived program of education.”73 Current concepts of continuing education in ethics consultation still rely on “Dewsonian teaching methods”.74

6.3.4

Indicator IV: The Formal Judgment Process as an Ethical Principle of Truth

We would liken the movement of our philosophical methodology toward practice to the important strain of empiricism manifested in American pragmatism.75

With these words, medical doctor Edmund D. Pellegrino and Catholic philosopher David C. Thomasma align the methodological orientation of their 1981 book, “A Philosophical Basis of Medical Practice. Toward a Philosophy and Ethic of the Healing Professions.” Inspired by William James’ meaning of the lifeworld and John Dewey’s understanding of science, as well as continental European phenomenology, they present their analysis of the philosophical implications of medical practice. The theory on the “Anatomy of Clinical Judgments”76 generally shows many parallels to the theory of pragmatic decision-making. Clinical ethics consultation is no exception. What the basic work of Pellegrino and Thomasma exemplarily offers as a further indication was reconstructed in Part II. Already Peirce understood ethical thinking as a content-open, evolutionary process of finding the truth in moral questions. The merit of John Dewey lies in having developed a formal process of judgment about good and just action. Together with Peirce and James, Dewey shared the conviction that the realm of practical reason was part of a comprehensive theory of knowledge and truth; that is, that true judgments about scientific phenomena were not formally different from those about social phenomena. In “How We Think” (1933) he had sketched out the foundations of his logic of true knowledge.77 Rehearsed patterns of behavior would be analyzed, understood, and redesigned against the forum of critical thinking. To this end, Dewey outlined his theory of imagined deliberation. Imagined deliberation means that human thought has a creative potential that can imagine different variants of usual courses of action and desired purposes. Corresponding courses of action have to be represented mentally. For this purpose, memory accesses biographical or narrative resources of experience. Dewey’s theory of truth shows several parallels to the theory of clinical ethics counselling in its initial 73

Siegler (1983), p. 23. Cf. Moreno (2006), pp. 368 and 369. Brodeur (1984), p. 240. Kopelman (2013), p. 152. Truog et al. (2015), p. 12. 75 Pellegrino and Thomasma (1981), p. 51. 76 Cf. Pellegrino and Thomasma (1981), pp. 119–152. Cassell (1973), p. 57. 77 Cf. Dewey (1986a), pp. 196–220. 74

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stages: it points to the life-worldly spatio-temporal contingency of all experience as a condition of any knowledge of truth—the New Jersey Supreme Court had named this, among other things, with the expression of “contamination by self-interest or self-protection”.78 It shows that the subjective worlds of experience are in fact connected with each other and must communicate with each other if they want to make true statements—“screening out” had been said in the Quinlan judgement. Because lifeworld orientation must clarify this interconnection, a systemic order of experiences is needed, which is regulated by a course of imagined deliberation—this is what the organizational and process specifications for the institutionalization of ethics consultation attempt to do with the three areas of responsibility defined since the 1992 “Accreditation Manual for Hospitals” of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). The main value of ethics committees lies in their process.79

The formal process of judgment as an ethical principle of the search for truth is the strongest indication in field of evidence III of the thematic correspondences80 that the ethical theory of pragmatism in the USA had a significant influence on the form of clinical ethics consultation. The fields of evidence run in a striking way through all the stages traced and provided a theoretical connection for the later practice models of clinical ethics consultation.81

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Robinson (1976), p. 311. Fleetwood and Unger (1994), p. 324. 80 Cf. Albisser Schleger et al. (2012), pp. 133–152. 81 Cf. Steinkamp and Gordijn (2003), p. 236. 79

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Chapter 7

Balance Sheet and Answer

The last section of a balance and answer can be kept compact. At the end of the three stages and in the summary of the fields of evidence, the arguments of the study have already been summarized. The object of the study was to examine the influence of the ethical theory of pragmatism in the USA on the shape of clinical ethics consultation in its early days. To this end, the Clinical Ethics Committee as an institution of ethics consultation and the philosophy of classical pragmatism as a theory of ethical judgment were presented. Notes on the method of inquiry followed. It was explained that the method of proof is based on the argumentative persuasiveness of strong field of evidence. From the totality of the individual facts to be presented, it should be possible to infer the demonstrability of the main fact asserted. Part I was entitled “Birthplace USA: Clinical Ethics Consultation and Pragmatism”. The three most important stages in the history of the development of clinical ethics consultation divided this main part: The medical history of Karen Ann Quinlan and the corresponding decision of the Supreme Court of New Jersey, the fates of the two babies Doe and the interventions of the Department of Health and Human Services, as well as the report of the Presidential Commission entitled “Deciding to Forego Life-Sustaining Treatment. A Report on the Ethical, Medical, and Legal Issues in Treatment Decisions” including the publications on standardizing ethics consultation. The second part of the thesis was devoted to the influence of classical pragmatism on the idea of clinical ethics consultation. After elaborating the main features of an ethical theory of classical pragmatism, the theories of Charles Sanders Peirce, William James and John Dewey related to the topic of study were presented. Explicit receptions of pragmatic thinking could be demonstrated in well-known theoretical models—the authors Stephen E. Toulmin, Jonathan D. Moreno, Joseph J. Fins, D. Micah Hester and John D. Arras were mentioned—of clinical ethics consultation. The final chapter was devoted to a justification of the answer to the study question by summarizing three fields of evidence: (1) Both Pragmatism and clinical ethics consultation emerged in the geographic area along the northeast coast of the United © Springer-Verlag GmbH Germany, part of Springer Nature 2023 B. Bleyer, Pragmatic Judgments in Direct Patient Care, https://doi.org/10.1007/978-3-662-66819-1_7

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States—between Boston and Baltimore. The rediscovery of the works of the classical pragmatists coincides with the formative period of clinical ethics consultation. (2) A large number of later developed practice guidelines, models and manuals for clinical ethics consultation are based on the works of Peirce, James and Dewey. (3) The thematic proximity of a pragmatic theory of ethics to an ethical theory of clinical ethics consultation clearly reveals points of contact (situational practice as the initial situation, discursive multidisciplinarity as a characteristic, argumentative consultation as an enabling performance, the formal judgment process as an ethical principle of truth). From this totality of presented individual indications and indicative fields, the plausibility of the thesis presented at the beginning can be verified and the question of this study can be answered: The concept of clinical ethics consultation has been an expression of an ethics theory influenced by classical US-American pragmatism since its early years.