One the most vexed questions in healthcare involves patient autonomy, and the extent to which patients are able to make decisions about their healthcare. It may not always be the case that patients will be able to understand the information that they have been given and decide what advice regarding their treatment they should follow. The question of autonomy and the extent to which patients are able to give informed consent to the treatment being recommended to them becomes more difficult as their health deteriorates. These issues will be explored in this chapter.

The idea that patients need to be asked to consent to the medical and healthcare treatment that is being proposed to them is reasonably modern. After all, the healthcare practitioner is the professional, the person with the expertise to decide what treatments are needed by the patient in order to return to health. If a patient needs an operation to remove a tumour, they are expected to accept the surgeon’s advice and have the operation. The Hippocratic Oath states nothing about asking patients for their informed consent before the physician prescribes medication or performs surgery. Despite this, it has generally become accepted that, because patients are autonomous, self-determining human persons, they need to be fully informed of the treatment options available to them, and to decide, having assessed the available information and taken appropriate advice, what treatments they will undertake. This is the recognition that a pathway to health will involve the active participation of patients – that is, it is not simply a matter of patients passively receiving treatment. The whole person needs to be involved in recovery to full health.

The transplantation of tissues and organs from deceased donors is well established in Australia, beginning with the first corneal transplant in 1941 and the first kidney transplants in the early 1960s (NHMRC, 2007). In 2013, a total of 391 deceased organ donors gave 1122 Australians a new chance in life after they received an organ transplant (Donate Life, 2014). Transplantation medicine is clearly one of the most dramatic success stories of modern medicine. It is, however, also one of the most ethically controversial, with significant personal, interpersonal and societal dimensions to consider. The practice of donation after death is a source of many of these controversies, especially when the demand for organs far exceeds their supply: around 1500 people are on Australian organ transplant waiting lists at any one time (Donate Life, 2014).

Transplantation medicine has always been guided by the primary ethical requirement that patients must be declared dead before any vital organs can be procured. However, the definition of death is not as straightforward as it once seemed. Whereas patients were once understood to be dead when they ceased to have evidence of circulation, respiration and brain functioning, with the loss of any one of these functions leading to the loss of the other two over a short period of time, the development of modern intensive-care medicine now allows the continuation of circulation and respiration in the absence of detectable brain function. This has made the question ‘When is a person dead?’ far more complicated (Truog & Robinson, 2003) and the ethical and legal requirements for organ donation far more controversial. This chapter critically examines the clinical and philosophical basis for the determination of death by neurological criteria (‘brain death’) and provides ethical analysis of emerging proposals for the ethical transplantation of vital organs.

The legal and moral dimensions of rights talk

The person who asks, ‘Is there a right to life or a right to die?’ may be looking for a legal answer or a moral one. The inquirer looking for a legal answer may be wanting to know what are their present legal entitlements or obligations: ‘What must I do to avoid trouble with the law?’ or ‘What can I avoid doing without running into trouble with the law?’ For example, the nurse may want to know whether she has a duty to assist with an abortion or the duty to assist a patient to commit suicide. The patient may want to know whether they can terminate a pregnancy without fear of criminal sanction or involve their spouse in assisting with their death, confident that their partner will not face prosecution after the peaceful death which would come more quickly than if the patient simply accepted good palliative care. The questioner looking for a moral answer is not so much interested in the present way of dealing with life at either end of the life-cycle, but rather with pondering how best we and our society might in future deal with people in such situations. The moral questioner is concerned with asking, ‘What ought we do? In a more ideal world, what ought we do? Even in a messy and broken world, what ought we do? How could laws and policies best be formulated to regulate, guide and determine how people respond and act when confronting life at either end of the life-cycle?’ When speaking of the right to die, we are usually wrestling with the moral dilemma of how best to order the doctor–patient relationship, how best to provide legal underpinning for the decisions made by patients and their next of kin, and how best to allow a patient to decide their options for life or death. If there is a right to die, it is a right to die at the time and in the manner of one’s choosing?

The concept of natural law has a venerable past in the Western world, having its beginnings in ancient Greece. For example, in the Theban plays, Sophocles illustrates how human actions have to conform to the laws governing human beings that have been ordained by the gods. Natural law theory holds that an understanding of human nature reveals that there are basic human goods, which all human beings need in order to flourish and be fulfilled. Although there are differing views about what is to be included in the list of basic human goods, the broadest list includes life, work and play, beauty, truth, friendship, self-integration, peace of conscience, marriage and religion. Natural law holds that these goods are incommensurable, and one cannot be preferred over another – although some goods may be dominant in particular lives. Crucially, whether some goods dominate or not, we need to share in all the goods to some extent. This leads to some potential problems in terms of ethical decision-making.

The idea of a law

The idea of the natural law is very broad, and not only encompasses views about natural science and the laws governing natural phenomena, but also extends across a number of disciplines, such as law, politics, theology and, of course, ethics. In some respects, all of these areas in the natural law tradition intersect with one another, and arguably the natural law that lies at the base of all of these disciplines is the same natural law. It is claimed that it is the natural law that justifies our intuitions about what is morally right. It is morally right to do our best to heal our patients, for example, because one of the basic human goods is life and health. It is one we all need to lead flourishing lives. We shall provide a brief account of what we might understand by a natural law or law of nature, and then outline how the idea can be applied to develop a normative ethical theory with universal application.

In the last decade, there has been a resurgence of utilising a Kantian theoretical approach in healthcare ethical reasoning. Kant (1909, 1991, 1997) argues that morality does not depend on how one feels about a particular action, but rather on whether one approaches the action with a good will. Kant believes that the moral life is based purely and simply on duty or obligation, and not on a utilitarian calculation of the best consequences or on a natural law respect for the basic human goods. So Kant holds a deontological view of ethics – an ethics of duty or obligation. Kant says that the most important thing is to will to do what is rational to do, and what reason commands. He says that the principle according to which we should act is to do what we would want to be a universal law – that is, we would want everyone to act in the same way. In healthcare ethics, this means that duties and rights are taken into account in our ethical decision-making.

Kant’s deontological approach to ethics

Kant’s main discussion of ethics can be found in Groundwork for the Metaphysics of Morals (1997), The Critique of Practical Reason (1909) and The Metaphysics of Morals ((1991). The first of these is generally taken to encapsulate Kant’s novel contribution to the discussion of ethics. Throughout his work on ethics, Kant takes a contrary view to those who claim that we can determine what is morally good by an appeal to the good, which he claims we cannot know, as well as those – such as virtue ethicists – who claim that the end of ethical behaviour is happiness. The latter, he thinks, cannot adequately be established. Kant provides us with a view of ethics that he believes is based on reason, the distinguishing mark of a human being. He distrusts emotion, holding that doing what is good is an imperative of reason: the recognition of doing what is right and the will to do this, irrespective of how one feels about what one has to do.

Ethical principlism is a popular ethical theory in healthcare ethics. It is based around four principles: beneficence, non-maleficence, autonomy and justice. Some codes of ethics, which try to provide guidance in healthcare, make use of these principles. This chapter will first explore what each of these principles involves, consider some examples of the principles in action and look at some of the difficulties and limitations of principlism. Principlism is at its best when the four principles work together to provide a framework for moral action, and at its worst when principles come into conflict. For example, showing respect for patient autonomy may not always lead to treatment that would be in a patient’s best interests, and so could conflict with the principle of beneficence.

It is no surprise that when we discuss standards of moral conduct or seek guidance in moral decision-making that we appeal to moral principles that help us make decisions about how we should act. Different normative moral theories have different starting points, so we can arrive at different views about what is good and what is morally right. Different theories, starting from different principles, result in different moral rules. This suggests that where there are challenging moral issues in the healthcare area, there will be considerable difficulty in finding agreement about what course of action is morally appropriate. Ethical principlism is a possible way forward: it proposes that, despite differences among ethical theories, there is a common core morality, and invites us to consider our moral decision-making within a framework of four moral principles. That is, it is claimed that whatever our starting point in moral theory might be – whether it is utilitarianism, virtue ethics, deontology or natural law – if we begin from the framework of ethical principlism, then the more likely we are to reach an agreed decision on a moral question. The appeal of ethical principlism is that it will help us to make justifiable moral decisions rather than establish what is objectively morally right. Principlism assumes that because there will be an overlap among the various moral rules enunciated by different normative theories which yield a common core morality, there will be acceptance of the four principles that form the framework within which moral questions are considered.

Moral virtue is a central notion in ethics, and understanding it is a challenge for action theory and moral psychology. It is no easy task to provide an account of it, but even a plausible account of what moral virtue is leaves largely open the difficult question of what it is to act virtuously and the related question of how we can ensure that we do so act. To see the problem that I want to address, consider two points. First, although we can fulfill our obligations by doing the right things – call this behavioral fulfillment of obligation – we deserve little or no credit for doing them if we do not do them for one or more reasons of the right kind. Such creditworthiness is a necessary condition for virtuous fulfillment of obligation. Second, given that acting virtuously is in part a matter of acting for the right kind of reason, and that (as I shall argue) we cannot at will determine for what reasons we act, we cannot act virtuously at will. This holds even when the act that virtue calls for, such as apologizing, is one we can perform at will. Apologizing can be done for a reason of mere self-protection, which is inappropriate to virtue – at least to the kind of virtue, such as respectfulness, which an apology should express. This limitation on acting virtuously is disturbing, perhaps even paradoxical. We think of ourselves as having the voluntary power to conduct ourselves in morally admirable ways. Do we not have that power after all? I shall argue that, in certain ways and under certain conditions, we do. The theory to be presented here will indicate those ways and conditions. It will also bear on the extent to which Aristotle was right in thinking that virtue itself is up to us.

I Moral virtue as an element in character

My purposes do not require a full-scale account of moral virtue.

With this book, An Introduction to Catholic Ethics since Vatican II, Andrew Kim explodes onto the scene of the discipline of moral theology with a wise, hospitable, and challenging overview of Catholic ethics. The book's title aptly names two contexts where Kim makes an important and successful contribution, and I'll allow these to structure my thoughts in this foreword.

“Catholic ethics since Vatican II”: By all accounts, Catholic moral theology was in need of renewal at the time of the Second Vatican Council in the 1960s. The key figure in that post-conciliar renewal is Fr. Servais Pinckaers, O.P. In important ways the ongoing project of renewal is a further execution of the characteristic features of his work. With this book Kim joins the ranks of those of us who seek to join and advance that renewal. Allow me to identify four features of this book that make it exemplary of renewal in Catholic moral theology since Vatican II in the vein of Pinckaers's work.

First, as explicitly mentioned in the oft-quoted Optatam totius no. 16 call for the perfection of moral theology, and as particularly evident in the work of Pinckaers, Catholic ethics must be nourished by Scripture. This is no small task, as it is easy for moralists to merely proof text Scripture to adorn their predetermined conclusions. Not so for Kim. This book is replete with nourishment from Scripture. The chapter on justice, Chapter 7, relies nearly wholly on the Old and New Testaments. At key points in numerous chapters, Scriptural passages play formative roles in the presentation of the topic at hand. Examples include Genesis 18 on war, the Prodigal Son on justice, the Good Samaritan on universal human dignity, Job on suffering, the Magnificat on preferential option for the poor, and, by far my favorite, a reflection on the Annunciation in his treatment of commercial surrogacy.

The power of skepticism depends on the apparent possibility of rationally asking, for virtually any kind of proposition commonly thought to be known, how it is known or what justifies believing it. Moral claims are among those commonly subjected to skeptical challenges and doubts, even on the part of some people who are not skeptical about ordinary claims regarding the external world. There may be even more skepticism about the possibility of justifying moral actions, particularly if they are against the agent's self-interest. Both problems – how to justify moral claims and how to justify moral action – come within the scope of the troubling question ‘Why be moral?’ Even a brief response to moral skepticism should consider both kinds of targets of justification, cognitive and behavioural, and should indicate some important relations between the two types of skeptical challenge. I will begin with the cognitive case – with skepticism about the scope of theoretical reason in ethics – proceed to practical skepticism, which concerns the scope of practical reason, and then show how an adequate account of rationality may enable us to respond to moral skepticism.

I Skepticism: general, moral, and practical

There are many kinds of skepticism, far more than can be even catalogued here. Call the view that there is no knowledge or justification, whether theoretical or practical, comprehensive general skepticism. This has rarely been held, but the view that no one has knowledge or justified belief regarding the external world – a kind of general cognitive skepticism – is an arguably defensible position. (Comprehensive cognitive skepticism – the view that there is no knowledge or justified belief whatever – has not been plausibly defended.) Most who are inclined to hold this version of external world skepticism would also tend to maintain that there is no moral knowledge and no justification for holding moral views. Call that position cognitive moral skepticism.

Reasons for action, for belief, and for desire are central in human existence. We regularly stake our future on our reasons. For one or another reason, we promise resources and time, trust other people, buy and sell property. Reasons can be good or bad, conclusive or inconclusive, premeditated or spontaneous. They may arise from inference, but they may also produce it. They may or may not be moral in kind; and when they are moral, they may or may not be based on intuition and may or may not be grounded in some conception of moral rights. Reasons are both central in the constitution of virtue and essential in the motivation of action that expresses virtue. In our political activities, reasons play a special role. How they should figure in the conduct of conscientious citizens, and whether religiously based reasons are on a par with secular reasons is much debated. This is a central question for understanding civic virtue, and that in turn is important for the theory of liberal democracy.

This book is about reasons in all the connections just indicated, and it approaches the topic of reasons with an eye to structure, content, and grounds. The place of reasons in ethics is often directly in view, and the book bears on the nature and scope of moral obligation as well as on the nature and basis of intrinsic value. Related to all these topics is the question of how we can know what reasons we have and what acts are rational on the basis of them. What follows is an indication of the focus of the individual chapters.

I Reasons for action

Reasoning is characteristic of human beings. But what is it? Is it essential for rational action? How is it related to reasons? And how, in turn, are reasons related to value? The essays in Part I provide accounts of all four of these notions and say much about their interconnections.

CHAPTER I

Review Questions

1. What do philosophers mean when they use the words “objective” and “subjective” and what relevance does this have for the discipline of ethics? What do ethicists mean when they speak of “the foundations problem,” and what are some ways ethicists have attempted to deal with this?

2. What is moral relativism? What does moral relativism assume about the nature of ethical reality? Is there any truth in the various versions of moral relativism? What are some key areas in which moral relativism fails?

3. What does Bentham mean by “the principle of utility” and how does Mill expand this view? Where does Mill agree and disagree with Bentham and what difference does this make for utilitarianism as an ethical theory?

4. How does “act-utilitarianism” differ from “rule-utilitarianism,” and in what ways does Kant's categorical imperative inform the latter? How is Kant's ethical theory importantly different from all forms of utilitarianism?

5. Imagine an ethical debate between a slave abolitionist and a slave owner in the United States in, say, 1835. They are debating about whether slavery is morally acceptable or reprehensible. Now imagine that Hobbes, Hume, Hegel, Bentham, Augustine, and Socrates all show up. Based on what you learned in this chapter, who do you think would end up on the side of the slave owners, and who would end up on the side of the abolitionists?

Important Thinkers

Socrates, Plato, Aristotle, St. Augustine, Thomas Hobbes, David Hume, Georg Wilhelm Friedrich Hegel, C.S. Lewis, Jeremy Bentham, Richard Brandt, Immanuel Kant, J.S. Mill.

Terms to Know

Cultural relativism, emotivism, historicism, historical relativism, moral relativism, objective and subjective, the romantic ideal, Ring of Gyges, romanticism, social contract theory, absolute moral norms, act utilitarianism, rule utilitarianism, consequentialism, deontology.

Further Reading

For issues of clarity and scope, I have not dealt with the more contemporary forms of moral relativism.