In Defence of Ethicists (Or: Dr No’s no-no)
25 Oct, 09 | by Iain Brassington
If you look at the comments thread in the post about Kerrie Wooltorton, you’ll see that there’s been an interesting debate between me and someone who calls himself “Dr No”. I don’t think that No and I will ever see eye-to-eye on quite a lot of stuff, but, then again, I don’t see eye-to-eye on a lot of things with the people whose offices are on the same corridor as mine, so there’s no surprise there.
Anyway - there’s a link to No’s own blog in one of the comments, and it, should you follow it, it’ll take you here. You know the aphorism about pictures being able to represent a thousand words? Here’s a picture:
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The post makes a couple of unwarranted jibes at lawyers in respect of the Wooltorton case, one being that they’re keeping quiet because they know they’ve got the law wrong. This is false on both counts. Lawyers are not keeping quiet - it’s just that there’s no real legal point to be argued. And that tells us the other thing: the law hasn’t been got wrong. But I’m not a lawyer, so I’m not to fussed about No’s attack on them.
Nor am I a doctor, so I’m not going to take issue with this claim:
The doctors are a divided camp. Some hold that their duty is to save life, and sod the law if it is at odds with this sacred duty, while others are of a more menial mind, and hold that the law is sacred, and sod the patient if the law demands that the patient should die.
- except to point out that British law hasn’t said that anyone should die since 1964. What it has said is that it’s sometimes wrong to prevent a death. But that is not the same by a long way.
What really rankles about No’s post is what he has to say about ethicists. I’ll quote at length here, albeit removing a bit of stuff for the sake of clarity.
And then there are the ethicists, with their argument and debate, and absence of conclusion, who all the while sow their malicious seeds of mischievous doubt.
Now, the first thing to note is that is that two of the main groups – lawyers and ethicists – are trained in the arts of argument and debate. Doctors, on the other hand, are not. One might suppose, therefore, that the doctors are at a disadvantage, and indeed they are; at least this one feels he is. Lawyers have a habit of tripping up doctors, and so Dr No is being careful where he treads.
The ethicists, on the other hand, appear to be playing a different game, a game of skirmishes on shifting sands, of shimmering chimeras, and arguments being popped out from behind bushes. As philosophers, they have mastered the unmasterable, and penetrated the impenetrable. They have even got their heads round the ideas of the likes of Kant and Heidegger, which enables them to explode the occasional deontological bomb when it suits them.
Now, the trouble with the ethical approach is that, as I have said before, it takes us to a place where the moral compass spins, anything goes, and nothing is beyond contemplation. Dr No does not have a problem with examining ideas, indeed he welcomes the process. In the safety of the debating chamber the compass can spin, and the world be turned inside out, just so long as we don’t export half-baked or chimerical ideas into the real world where they may mutate into doctrines of sinister lethality.
Whenever malicious seeds of mischievous doubt are sown, we should be on our guard. We must join the lawyers and the ethicists at their games, and play as hard as we can to ensure that those who are more skilled in the arts of argument and debate do not carry the day merely because of their greater skill in these arts.
Medical ethicists referring to Kant and Heidegger? Um… I suppose that might be me, then. It’s just a shame that No doesn’t know enough about philosophy to realise that Heidegger is certainly no deontologist, and is barely an ethicist at all unless you jump through some fairly hefty hoops (which is why the papers I’ve been meaning to write on him have been mainly unwritten for the past five years). But maybe that’s not a problem, because a lot of what motivates the post is that ethicists should be treated with suspicion because they - we - do occasionally upset the apple-cart. What else would underpin the suggestion that ethicists ought to be quarantined to some degree just in case what we think should make a difference to the world? This looks perilously close to the idea that ethicists are fine for as long as they make trivial comments or suggestions that cohere with everyday intuition, but that anything more than that happens, they’re a threat. To the idea that, in a clash between lay intuition and reflection, lay intuition has the trump card because… er… reflection clashes with it. And that’s just nuts. You might just as well have said that we should treat medics with suspicion because of their unsettling insistence that disease is frequently caused by the invisibly small blobby creatures crawling all over everything.
Besides: doubt is neither malicious nor mischievous. As a person with a broadly scientific training, No should know that doubt is fundamental to the scientific method. The same applies in the humanities. Doubt is good. It should be encouraged.
As for penetrating the impenetrable and mastering the unmasterable… God only knows what that means. I’ll take it charitably, though, as indicating that ethics is often harder than it looks. Fine: it is. It’s frequently counterintuitive. That doesn’t mean that ethicists are engaged in charlatanry - much less that there’s anything lethally sinister about what we do. It just means that ethics is often harder than it looks. Quick: someone tell the internet. What makes the difference between a philosopher and Dr No, though, is that if a counterintuitive conclusion is reached based on an apparently sound argument, it’s the conclusion that bites the dust. That’s not charlatanry: it’s brutal, cold, unflinching and steely honesty. If I don’t like my conclusions, then I’m willing to accept the possibility that it’s me, not they, that’s wrong.
Dr No? No, no, no.
(Oh, and this post is somewhere around 950 words long below the fold. So not far off the thousand painted by the picture.)
As I have said in previous posts, the problem we have with the sad case of Kerrie Wooltorton is that we do not know much about her state of mind or the events that led to her death. This, I suggest, is the reason why lawyers have for the most part been silent. If you were correct that “it’s just that there’s no real legal point to be argued,” we are indeed in a very sorry state.
It is strange that you defend the ’principle of the better of argument,’ but claim there is no argument when your “intuitions” are brought into question. You cannot say there is no argument given the available evidence.
The notion that medical ethics can in someway be likened to ’doing medial science’ is in my opinion, to use your phrase, just nuts. However, medical ethicists should attempt to understand how an argument in science is constructed in order to understand, if nothing else, how it differs from an ethical argument. There are of course similarities. You are correct - “Doubt is good. It should be encouraged.” As I have said in a previous post, I have my doubts about the Wooltorton case, and it worries me that some ethicists appear to have no doubts about it given the available evidence.
Many of Dr No’s criticisms of ethicists are not well founded, but some are. Equally your talk about the “clash between lay intuition and reflection” does appear to be coming from the armchair. The armchair can be used to reflect and do some speculative thinking, but it is a dangerous conceit to think that these thoughts trump “lay intuitions.” I am sure your understanding of Heidegger gives you some insight into this problem. The interpretation of Dasein starts with the average everydayness. No matter how Dasein ’takes hold’ of its existence, it will always be within phenomenal context of average everydayness. (As with Wittgenstein and the Tractates - it’s all ethics)
As usual I am left wondering why there is so much discord. Not sure this ’argument’ will be resolved if we cannot agree what makes for a better argument. I have some big doubts about ‘discourse ethics‘, but it might help us to clarify some of the rules.
Keith Tayler
October 27th, 2009 at 12:23 am
Heh - well, I am shamelessly armchair-centric… I don’t see that there’s any danger in lay intuitions being trumped and dumped. I think it’s frequently a good thing.
You’re right to say that there’re important differences between the humanities and the natural sciences - the roles of deduction and of appeals to authority are very different, for example - but there are also similarities, and systematic doubt is one of them. Indeed, it’d be foolish to forget that natural science as we know it only really got going because of a new-found willingness among 17th century philosophers to embrace doubt.
The more general point is this, though: given that we don’t accept lay intuition as a guide in any other discipline, even in academic philosophy, why should there be any such thing as bioethical exceptionalism?
(And a minor point about Heidegger: say what you will about Dasein’s “average everydayness”, but its analysis in Being and Time, is anything but. Ditto, for that matter, Kant’s analysis of the “common idea of duty” in the Groundwork, which is anything but common. In both cases, these thinkers should have said “Look, I’m doing something a bit strange here. Trust me; it’ll make sense later.”)
Iain Brassington
October 27th, 2009 at 11:34 am
‘Lay intuitions’ (this needs unpacking - but lets go with it) need to be taken seriously because bioethics is not a science. Many bioethics believe they are scientists, which they most certainly are not. (Many of them also have an ideological and distorted view of sciences such as genetics, psychology, computing, etc..) This at best leaves quite a lot bioethics as nothing more than pseudo-intellectual claptrap. Too often bioethics attempts to exclude lay intuition because “ethics is often harder than it looks“ and should be left to experts. We should not forget that bioethics is ‘applied ethics‘; if it is declared to be too hard for the lay person to understand and have their opinions treated equally, its normative claims to validity cease to function in practical and universal discourse.
For sure, all who wish to engage in ethical discourse need to accept some of the ground rules. We have Toulmin’s “What kind of things make a conclusion worthy of belief?”, and Habermas’ “Only those norms can claim to be valid that meet (or could meet) with the approval of all affected in their capacity as participants in a practical discourse” - etc. etc. etc.. A ‘lay intuition’ cannot be used to stop discourse; but there are times, as Williams described, when we cannot lay bare all our beliefs and intuitions (the ethics/science divide comes in here).
Having said all that - There are no moral experts, but ethicists’ arguments should carry weight because they should know the kind of things that make a conclusion worthy of belief. If they don’t - they might have to look at the things again.
Re. the Heidegger stuff. Heidegger made nothing simple including nothing. He claimed that “making itself intelligible is suicide for philosophy.” (This should not be read at face value - obviously, or perhaps unobviously) But I for one will not assist in the suicide of philosophy because it is intelligible.
PS. Blogging is intelligible - more philosophers should follow your example.
Keith Tayler
October 28th, 2009 at 6:02 pm
Keith - glad to see you are giving Iain a run for his money! I agree with much of what you say - as you will see below.
As it happens, I put together a comment earlier which I didn’t get round to posting. Well - here it is. The only thing I didn’t put in earlier was to say I only mentioned Heidegger in my OP because like Kant he has a reputation for being unintelligible - the point I was trying to make was that philosophers indulge in special pleading based on their ability to understand what others can’t!
Not only is Mr B shamelessly armchair-centric (more over-stuffed into oblivion prose again!); he also appears to spend much of his time with his hand over his eyes. Small wonder, then, that he doesn’t see very much.
Mr B asserts that there is no legal point to be argued. This is bonkers - the law could not be more central:
- the Suicide Act, and the meaning and interpretation of complicity, and aiding and abetting, in relation to passive acts (acts of omission)
- allowing the MCA to trump the Suicide Act, despite S62 of the MCA making it clear this should not happen
- the MCA and its operation in the real world, in real time, with a dying patient on the trolley, in particular in relation to the practical operation of the formal test of capacity.
So Dr No stands by his jibes at the lawyers - the law (which is made by lawyers (and sometimes lawyers dressed as politicians)) is largely responsible for the mess (including doctors being placed in damned if the do, damned if they don’t positions), and yet the lawyers remain largely and yet strangely silent…and so, quite reasonably, Dr No asks: why do they remain so silent?
Those are mainly practical matters. Then there is the wider question of whether the mess was the result of stupidity (cock-up theory) or a covert group hell-bent on getting euthanasia legalised (conspiracy theory). Whichever way you look at it, the law is central. There are many many legal points to be argued.
Which Mr B then concedes, because, although he asserts that there is “no legal point to be argued”, his next bit is all about the law, wherein he says “British Law hasn’t said anyone should die since 1964″. But that was exactly what the Norwich lawyers did say (the docs asked, and the lawyers said you must let her die), and of course it is what McLean has said. And it will be the law - not ethics or medicine - that will make euthanasia legal, should that day come to pass.
What I have just said must make it clear that I have doubts about the law, and that I think there are debates and arguments to be had. That is the thrust behind my posting, both here and in other places, and my frequent statements that there is a debate to be had. Doubt - about the law and ethics in this area - are central to my position. I fully appreciate the importance of doubt.
But, as the man said: there is nothing either good or bad, but thinking makes it so. By the same token, I see doubt as a double edged sword, a tool that can be used wisely, but it can also be misused. Consider this: a couple are happily married. An armchair, reflective philosopher asks each of them: how do you know that the other one is not having an affair? As it happens, neither is, but that malicious seed of mischievous doubt has been sewn. Two years later they end up divorced.
My point is that we need to be on our guard against against any disingenuous use of doubt, and when we do spot it, fight back against it. So: I am not against doubt, but I am against the misuse of doubt. As Kennedy might have said: The great enemy of the truth is very often not the lie — deliberate, contrived and dishonest, but the sowing of seeds of doubt.
Lastly, quite what Mr B means by lay intuition is beyond me. I cannot see how the doctor at the bedside is either lay (he is there in a professional capacity) or an intuiter (he isn’t intuiting what to do, he is guided by the duties and principles of both his profession and society at large). Quite why a reflective philosopher in an armchair with his hands over his eyes should trump the doctor at the bedside is completely beyond me.
Let’s have our doubt and argument, by all means, but at the end of the day we must let the man on the spot - the doctor at the bedside - make the final decision - a decision that is neither lay, nor based on intuition, but on everything that has gone before, including both the principles and practice of the profession, and any arguments with ethicists and lawyers that may or may not have happened.
Dr No
October 28th, 2009 at 8:51 pm
Hello, All.
I’ve enjoyed the discussion here, and on the earlier related blog.
I wanted to raise a couple of issues with Dr No, who I think is working from an incomplete understanding of the legal position, and an odd perception of what “the law” is and who lawyers are.
First: there is no doubt - eg see Lord Goff’s speech in the Bland case - that, whatever the ethics of the matter, a doctor is not legally complicit in a suicide when respecting a competent refusal of life-sustaining treatment. There are doubtless countless ethical issues to unpack here, and professional ones too, but the legal position is crystal clear.
Second - I think Dr No may conflate culpability with complicity. In response to the earlier blog, he says something about the complicity of a person who stands by at a road traffic accident, when that person could call an ambulance and see the victim rescued. There may be culpability in this situation, but there’s no complicity.
Third - the Mental Capacity Act is not “trumping” the Suicide Act; nor can it. Section 62, and 4(5) for that matter, have no bearing in the case under discussion. Nor does the Suicide Act. And that’s that. Again - clear.
Fourth - Who are lawyers? Judges, legal commentators, legal advocates, legislators, someone else? It’s not clear from Dr No’s posts quite what he’s getting at. I don’t believe there can be this sort of hinted-at conspiracy of silence. Some lawyers will be pro-euthansia and some anti it. What bearing this has on the law will likely be limited, but even if not, lawyers are not one group and it’s odd to talk about them in the way Dr No does.
Fifth - “The law” does not make things legal. That’s a very strange construction. If something is unlawful, Parliament - and arguably the courts - can make them legal.
I don’t quite know, though have suspicions about, the thrust of Dr No’s posts. But I do know where the legal picture is clear on these matters, and think Dr No is possibly exercising a bit of armchair legal analysis.
John Coggon
October 29th, 2009 at 4:28 pm
Making 2=5…
First point: in Dr No’s reading, Lord Goff is irrelevant to Wooltorton, for the simple reason that he was talking about a different set of circumstances. Bland was in a persistent vegative state, and the case was about the indignity or otherwise of prolonging his life. The oft-quoted passage from Lord Goff about the “the principle of the sanctity of human life must yield to the principle of self-determination” makes it very clear this applies only and only when the individual is of sound mind. There can be no absolute certainty that Wooltorton was of sound mind, and to the extent doubt exists, Bland does not apply. He even states, further on in the same paragraph: “I wish to add that, in cases of this kind, there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in doing so” which (a) makes it clear that Lord Goff wants us to be clear that he is not talking about cases of suicide and (b) begs the question: if it had been a case of suicide, would not Lord Goff has asked the question: did this amount to aiding and abetting?
And thirdly, Lord Browne-Wilkinson, in the same judgement said: “I am very conscious that I have reached my conclusions on narrow, legalistic, grounds which provide no satisfactory basis for the decision of cases which will arise in the future where the facts are not identical.”
So I cannot agree that the legal position is crystal clear. What I am clear about is: Bland is irrelevant.
Second point: Dr No hasn’t used the word culpability, and he doesn’t need to (or conflate it either for that matter). He uses complicity because that is the word used in S2 of the Suicide Act, and it seems to Dr No that what that Section is saying is that criminal liability arises when there is complicity.
Third point: exactly: the MCA is expressly not meant to trump the Suicide Act, but in Wooltortons case it appeared to: your learned friends advised the doctors at the bedside that the MCA held sway. So no, it is not at all clear.
Fourth point: all of them, in their various roles: the lawyers who drafted the MCA, debated it and the legislators who passed it into law (“which is made by lawyers (and sometimes lawyers dressed as politicians))”); the commentators including you lot (!). The conspiracy – if their one, and to many doctors it does seem as if their might be one – is to get euthanasia legalised – and to that end the conspirators speak and remain silent as best suits their purposes.
Fifth point: what is the instrument Parliament uses to make something legal? Dr No thought that on occasions the Acts were called laws – as in laws of the land – and to that extent it is the law that makes something legal (or illegal).
Dr No’s thrust is very simple. He objects to bad law interfering with good medicine. He is also personally anti-euthanasia, but not virulently so. And he accepts, indeed supports, the idea that those who are of sound mind have the right to self-determination, even when it causes them harm or death. Now – what could be clearer than that?
Dr No
October 29th, 2009 at 6:55 pm
Dr No - you are confusing legal clarity with factual clarity: whether or not Woolterton had capacity (not something I’m able to comment on), the law is, as I said, clear. And even leaving dicta from Bland aside, there have been cases of purposeful self killing, as well as refusals of life-saving treatment, where the doctors (or others responsible for care) have been deemed by the courts to have no right to interfere, and thus are not able to be convicted of assisting a suicide.
On culpability - I was criticising your use of the word “complicity” in an event that only had one actor (your road traffic scenario) - you need at least two people for there to be complicity. That the Suicide Act refers to complicity does not make it possible to condemn a “bad Samaritan” for his complicity.
On the MCA “trumping” - this claim still fails to make sense. The MCA is compatible with the Suicide Act, and was followed. There was no “trumping” going on. My “learned friends”, I trust, advised the doctors that the MCA was applicable because it is in such circumstances, but I find it incredible that 1. they saw the two Acts in conflict, and 2. (arbitrarily or otherwise) plumped for one over the other. Your understanding of the situation legally is flawed.
The conspiracy - I think if a patient presented with a view of a conspiracy on this scale you might question his/her capacity all together.
“The Law” - you were suggesting by your previous phraseology that the law makes the law. Maybe it was just clumsy shorthand. (Ie, Acts can be called laws without a stretch, but Acts do not pass Acts, and laws do not pass laws…)
I hope this helps, but fear you may just want this to be considered unclear when it’s not, and a conspiracy when it’s not.
John Coggon
October 29th, 2009 at 7:41 pm
@Dt No - Just a couple more things…
1. I don’t see why Dr no keeps talking about the Suicide Act, when nothing the doctors did aided or abetted Wooltorton’s suicide.
2. The law did not say in the Wooltorton case that she must die. It said that the doctors must not intervene to prevent her death. Had she somehow survived, the law would have been perfectly happy with the outcome.
3. In terms of lay intuition, all I’m talking about is the opinion of the man on the street. You can surely see the difference between a person who’s well-versed in a discipline (whatever it may be) and someone who’s not. Can’t you?
4. Your talk about the pro-euthanasia conspiracy is verging on the paranoid: you say “the conspirators speak and remain silent as best suits their purposes”, but hat just makes it look as though you’ve decided there’s a conspiracy and nothing that anyone says, does, doesn’t say, or doesn’t do, will change your mind.
5. Wooltorton is not a euthanasia case anyway.
6. Please don’t refer to yourself in the third person. It’s very annoying.
No matter how many times you repeat essentially the same point, it won’t make you any more correct, either about the ethics or the law. I’m beginning to wonder whether you’re perhaps just enjoying being… well, “troll” is a strong word… whether you’re being deliberately contrary.
Iain Brassington
October 29th, 2009 at 8:23 pm
@Keith - I don’t think that I quite agree with you, but I can see the thrust of your argument, and I think it’s one that deserves more engagement than I can give it right now. Maybe it’ll warrant another post of its own at some point in the future.
As for Heidegger - he seems to me to combine dazzling insight with a large amount of utter hokum. I reckon he’s about 20% FTW and 80% WTF.
Iain Brassington
October 29th, 2009 at 8:46 pm
@John
As I said in an earlier post in reply to Iain - “If you were correct that ‘it’s just that there’s no real legal point to be argued,’ we are indeed in a very sorry state.” We are discussing the Woolterton case and possible future cases where the capacity of the patient is at issue.
You say “…whether or not Woolterton had capacity (not something I’m able to comment on), the law is, as I said, clear.” If she did not have capacity she should not have been left to die. Both you and Iain appear to think that this has little or no bearing upon the case.
Again I repeat - we do not know enough about Kerrie Woolterton’s state of mind and the events that led to her death. Without the evidence it is not possible to say whether the law was clear in her case and will be in future cases were the patient’s capacity might be in doubt.
Like Dr No I “support the idea that those who are of sound mind have the right to self-determination, even when it causes them harm or death.” But, as I said in a much earlier post, I know that ‘most’ people with self-harm and suicidal tendencies will lose them given time. If the law is ’clear’ in these cases, the law is clearly wrong. But of course it is not.
@Iain
‘Lay intuition’. At sometime during your student days you must have been set the essay title ’Are there moral experts?’ I got it in my part one tripos and have ever since claimed it is a finals question (after all Kant made a mess of it). The answer you were expected to give was ‘No, but……..’ I still think that it is the correct answer, but the stuff I put in to fill the dots has changed.
As for Heidegger. I agree, every much the same you get from Wittgenstein, except Wittgenstein knew its utter hokum or, as he put it, nonsense.
Keith Tayler
October 30th, 2009 at 3:35 pm
I never had anything even close to “Are there moral experts?”, which is a shame, because it’s quite a nice question. Oh, well. Here’s my shot, though:
Maybe not moral experts, but certainly people with more expertise, and certainly people who’re expert at argumentation.
As for Wooltorton’s capacity: isn’t there a reasonable presupposition that unless there’s clear evidence beyond reasonable doubt that a person is incapable, we ought to assume capacity?
Iain Brassington
October 30th, 2009 at 3:50 pm
“Expert in argumentation”. Experts tend to have theories and I am not convinced as to how far argumentation can be theorised. Habermas, the grand theorist and expert in argumentation, once said that it was a shame that Wittgenstein never managed to develop ’language games’ into a proper theory. The problem with grand theorist and some experts is that they often fail to understand another’s argument because they assume it has (or should have) a theory beating within it. “Expert in argumentation” is just another problem.
If by “beyond reasonable doubt” you mean the standard of proof required in a criminal case, you appear to have raised the standard far too high. How on earth could a medical team in A&E unit confronted with an attempted suicide be ‘certain’ that their patient is capable? Obviously they would have to doubt the patient’s capacity because they do not know enough about the patient’s state of mind. Certainly an AD without a witness signature, or indeed an unverifiable witness signature, cannot be accepted as proof.
I do not believe that simple induction and probability equals certain knowledge and proof, but, as I have said before, in this type situation you cannot ignore it; which means you must doubt the capacity of the ‘individual’ because of your knowledge of the behaviour and state of mind of a ‘population’ in similar conditions.
Again we would appear not to be able to agree about the evidence. We (this includes the others in this debate) need to agree what does or does not count as evidence of capacity or incapacity (obviously there will be grey areas). I fully accept that people with clarity of mind can end their owns lives and that doctors should respect their wishes. But they must convince them of their state of mind. If they are unwilling and/or unable to do this, I for one would have no other option but to doubt their state of mind. Put very bluntly, if someone, who has capacity, cannot be bothered to do this, I fail to see why I should be bothered to help them or concern myself with their belief in their ‘rights.’
We are not going to agree about this evidence problem.
Keith Tayler
October 30th, 2009 at 6:29 pm
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