clinical ethics: theory or practice?

JOS V. M. WELIE

CLINICAL ETHICS: THEORY OR PRACTICE?

ABSTRACT. This article starts with a brief historical account of the ongoing debate aboutthe status of clinical ethics: theory of practice. The author goes on to argue that clinicalethics is best understood as a practice. However, its practicality should not be measured bythe extent to which clinical-ethical consultants manage to mediate or negotiate resolutionsto ethical conflicts. Rather, clinical ethics is practical because it is characterized by a pro-found concern for the well-being of individual patients as well as the moral parameters ofswift and urgent medical action in the face of limited supportive information.

KEY WORDS: alternate dispute resolution, clinical ethics, consultation, mediation, nego-tiation, theory of practice

1. A BRIEF HISTORY OF CLINICAL ETHICS

Ever since the emergence – three decades ago – of medical ethics as anindependent discipline, debates have abounded concerning its very nature.The original impetus to the development of medical ethics came fromscholars who would traditionally be considered “theoreticians”: moraltheologians and philosophers. From that very early beginning, “practi-tioners” objected against the intrusion of theoreticians into a field thatwas essentially non-theoretical. Medicine was a “techne,” not an “epis-teme,” an art rather than a science. Theoreticians would never be able toget a good sense of what clinical medicine was about. If there was anyneed for an ethical remake of medicine, it would have to be done by thepractitioners themselves. A second development emerged with establishedclinicians initiating ethics training programs and medical journal sectionsspecifically aimed at and designed for other clinicians and practicing healthcare providers.1

Naturally, theoreticians were quick to point out that if such practicalethics were to qualify at all as ethics, it would have to be theoreticallysound. While applied ethics might be more relevant to clinical practicethan traditional philosophical ethics, it would have to be anchored in ethicsproper. And so would applied ethicists: “An ethicist who is not also aphilosopher or theologian, is equally absurd as a clinician who is not alsoa physician or psychologist.”2 If one grants that clinicians neverthelesscould become familiar with that “foreign” trade of ethics, surely philoso-

Theoretical Medicine and Bioethics19: 295–312, 1998.© 1998Kluwer Academic Publishers. Printed in the Netherlands.

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phers and moral theologians could become familiar with the art of medicalpractice.

Not everybody was happy about this new marriage between clin-ical medicine and philosophical ethics. Some physicians worried thatthe intrusion of “one more of a growing number of back-seat drivers”3

would hamper or even undermine the trust that is essential to the patient-provider relationship. The physician must “enjoy total freedom of practiceto enable him to make clinical decisions without outside interference.”4

Others feared that bioethics would hinder scientific progress,5 and somephysicians bluntly stated that medical ethics is none of the philosophers’business.6

Applied ethicists responded that they merely “facilitate” the processof ethical reflection by discovering prevailing moral ideas and assesstheir applicability.7 Ethicists point out neglected features in discussionson moral subjects, spotting contradictions, mapping and critically evaluat-ing the conceptual commitments and values conflicts in particular actionsand choices, laying out alternatives, scrutinizing arguments, and listingsound reasons pro and con.8 But otherwise, competent ethicists remainat some distance from the actual provision of care without assuming anyresponsibility for the clinical decisions.

But that response, in turn, invoked criticism from (mostly continental)philosophers who objected that these “marital” partners simply are notcompatible.9 Ethics is the turf of philosophers and theologians. Whilemedicine justifiably focusses on solving emerging health-related problems,it is not the function of ethics to solve – or even worse – settle moralproblems. At best, the ethicist can participate in the interpretation of themoral experiences of those involved in the provision (and reception) ofhealth care. But the ethicist should not pretend to contribute directly to the“management” of moral dilemmas.10 If she or he does, ethics is likely tobecome the lubricating oil of the political machinery rather than its criticalwatchdog.11

In the meantime a number of (mostly American) bioethicists – physi-cians and philosophers alike – did not await the outcome of this heateddebate but set out to provide consultations on a regular, formalized, “pro-fessional” basis, while abiding by established protocols and ethics codesfor clinical ethicists. They obtained beepers and started rounding the wardsin white coats, writing consultations into the patients’ files, providingexpert testimonies in courts, and voicing professional opinions on televi-sion. Naturally, this practical revolution evoked an equally radical critiquefrom theoreticians. One Dutch philosopher of science boldly reacted thatall bioethicists should be done away with. Medical ethicists are superfluous

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amateur lawyers.12 Since they reduce complex dilemmas to simple proce-dures, to matters of rights and duties, interests and preferences, they may aswell leave the job up to lawyers who are better trained in problem-solvingtechniques. And if they leave it up to real philosophers to explicate the dis-sensus in the world of health care, the tragedies, the structural powers, andother real phenomena of significance, their jobs may as well be canceledcompletely.

“Let’s get rid of all ethics,” another Dutch philosopher summarized.Applied ethicists are “dirty old men” who manufacture their own prob-lems and then go about solving them with great aplomb.13 Dirty oldmen? Bioethicists are “moral engineers” and “media manipulators.” Theirsophisticated theoretical debates only serve to concoct consensus aboutdespicable practices (such as eugenics and euthanasia). They cannot andwill not be tolerated and the only proper answers to their practices isboycott, Germany’s anti-bioethics movement concluded. And so the move-ment set out to obstruct any and all bioethics (related) conferences.14

Nowadays, to survive as a clinical ethicist one not only needs bothextensive clinical and ethical skills but – notably in Germany – combatskills as well.

2. THEORY OR PRACTICE? – THAT IS THE QUESTION

The preceding summary account of the history of clinical ethics indi-cates that merely raising the question whether clinical ethics is essentiallya theoretical or a practical enterprise could literally spark an explosion.Surely the safest answer would be to consider clinical ethics a very, verytheoretical enterprise, the designated turf of esoteric philosophers in stuffy,dim offices in forgotten concerns of university campuses. Nevertheless, inthis article I will advance the opposite thesis that clinical ethics is essen-tially practical in nature. It is a practice in as much as theory and practicecan be distinguished meaningfully. That is not to say, however, that it islike, or even similar to, the practice of medicine or health care. Whiledirectly tied to and affected by the structure of clinical-medical practice,15

clinical ethics is characterized by a different, essentiallyethicalstructure.Clinical ethics is not first and foremost practical in nature because it isclinical (though that will be shown to bolster its practicality); it is practicalbecause ethics is itself essentially practical.

In this article I will first argue that clinical ethics is a reflective practice,aspiring to make a difference in the actual world of clinical medicine byeducating, that is, guiding those involved in the provision of health care

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towards morally sound behavior. While the manifold daily care relateddecisions of care providers make a moral difference, they would onlyqualify as ethics proper once they acquire an explicit reflective quality.Without that quality, such decisions remain in the domain of clinical healthcare – morally sound clinical care, but clinicalhealth carenevertheless.On the other hand, any kind of descriptive study of the moral aspect ofclinical care – and every practice has an intrinsic moral aspect – that isnot seeking to affect care providers’ behavior, would only qualify as aempirical backgroundtheoryof clinical-medical practice.

In the consequent section, I will examine whether the ever more preva-lent practice of ethics consultations by “on call” clinical ethicists qualifiesas clinical ethics proper. I will argue that such consultations do not qualifyas clinical ethics when they are aimed at dispute resolution through negoti-ation and medication. There is a growing tendency towards merging ethicsconsultations into the more recent (and more lucrative) Alternate DisputeResolution (ADR) movement.16 While attempts to reach a truce or evena pacification may be sound moral practice, it is a structurally differentpractice from clinical ethics.17 Granted, Engelhardt has argued that theonly justifiable manner of addressing moral dilemmas in the public domainis through negotiation. While he may be right (I do not believe so but willnot argue against his point of view in this article), Engelhardt’s thesis onlyshows that the public domain calls for a “political” approach, while (clin-ical) ethics is restricted to the more limited domain of small communities(such as the community of patient, family, and care providers). Disregard-ing or even denying the significant distinction between the political and theethical praxis is playing into the hands of both the German anti-bioethicsmovement and the Dutch philosopher-critics calling for an abolishment ofclinical ethics altogether.

3. ETHICS: SCIENCE OR ART?

There exists considerable difference of opinion as to the word “ethics,”notably in relation to the term “morality” (and such related terms as“ethos” and “etiquette”). As argued elsewhere,18 I am inclined to reservethe term ethics for thestudyof morality.19 However, in defining ethicsas a study of human endeavors under the aspect of morality, I do notmean the word “study” to refer to the appropriation of existing knowl-edge by learning, but first of all to the process of active procurement ofnew knowledge. Moreover, the knowledge thus acquired differs from mostother forms of knowledge by its practical cogency: Ethical knowledge


directs people toward moral behavior. Thus, the aforementioned distinctionbetween ethics and morality is primarily a heuristic one: Genuine ethicspertainsdirectly to morality.20

Along with De Visscher,21 I believe that the many contemporarydebates about ethical concepts, methods, arguments, models, theories, etc.,have generated a kind of “fog” that is about to obscure the very motivebehind all these meta-debates: Moral practice itself. Obviously, partici-pants to these ethical debates will strongly protest against qualifying theirendeavors as “foggy,” for their very goal is to elucidate moral quandaries.And yet, the question remains why one should even random one? It must beassumed that the elucidative discourse of applied ethics has more directivequality, if only in pointing out on what alternatives one ought not embark.

A similar consideration may be advanced in response to those whoreject applied ethics, opting instead for a more “modest” role of the bioethi-cist as the “interpreter.” A hermeneutic analysis and clarification of thesituation at hand, opening up various meaningful practical options, onlymakes sense if it is assumed that among these options,onemust be morallypreferable. Furthermore, this superiority must be recognizable. Lackingsome applicable meta-theory – for the very essence of hermeneutic ethicsis the denial of such a meta-theory – moral discourse itself must reveal themorally best alternative.

But ethics is not merely “practical” in that it is concerned with humanendeavors; nor is its “practicality” solely based in the underlying motiveto affect these practices. If that would be all there is to ethics’ practicality,ethics would still be theory in essence. In fact, Sidgwick might have beencorrect when he claimed that for the very sake of practical relevance,ethics should be understood as theory: Ethics’ “immediate object – toinvert Aristotle’s phrase – is not Practice but Knowledge . . . ; and perhaps amore complete detachment of the scientific study of right conduct from itspractical application is to be desired for the sake even of the latter itself.22

Except for those relatively rare sciences aimed at gaining knowledge forthe very sake of knowledge (after all, an examined life is not worthliving), the final goal of all theoretical enterprises is to influence humanendeavors. This is true for the biomedical sciences, microelectronics, andeconomics, but even for sciences underlying these, such as moleculargenetics, theoretical physics, or algebra.

All of the above mentioned sciences are aimed at and do in fact influ-ence human endeavors to some degree. The difference, however, betweentheoretical sciences and practical arts, is not one of degrees. The differenceis decisive. Theoretical knowledge can never fully “grasp” the practices ofthe arts; there is always going to be an unsurpassable distance between

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theory and practice, a gap, in “aporia” (to borrow Wieland’s term).23 Thisaporia is due to the categorical difference between the nature of scientificknowledge and the nature of practice. It is generated, among others, bythe long acknowledged impossibility to gain scientific, universally valid,and atemporal knowledge about the ever changing real world of uniquebeings and historical events. Conversely, an art can never be explainedand justified completely, for explanation and justification presuppose a(presumably) non-relativist frame of reference. The artist as well as his“clients” have to acquiesce in an ever lasting presence of uncertainty anddoubt – not about the reality of the practice, because it is (painfully) clear,but about “why” it is as it is.

So where do we situate ethics? It certainly “looks” like a science: pilesof articles and books, most of them composed with little if any aestheticappeal, to be read and reread, criticized, debated, refuted, and often com-pletely forgotten. Indeed, I started out defining ethics as astudy ofhumanendeavors under the aspect of morality, as an enterprise located at a meta-level to its object: human endeavors. And most importantly, is not the verypurpose of any ethics to uncover what human endeavors are “justifiable”and to demonstrate “why” others are not?

But is it ever possible to adequately justify human endeavors? Aristotlehas already pointed out that ethicspresupposesa sense of what is righteousand moral. Sidgwick admitted that all we can do is “start with certainethical premises” and “consider simply what conclusions will be rationallyreached” on that basis.24 It is but a step or two from this position to Hare’sdefining ethics as the logical study of the language of morals – granted,prescriptive language, but a studyof prescriptive language nevertheless,rather than a prescriptive study in moral language.25

The apparent incompatibility between prescription and justificationand, hence, the paradoxical nature of ethics, is hardly a new dilemma.26

What is new is the tendency to evade the dilemma by retreating into athoroughly non-prescriptive analysis of morality. And yet, ethics cannotafford to simply take for granted the moral status of certain premisesand proceed from there. This is what all sciences, including medicine,do: Take for granted a certain conditional axiomatic foundation that isitself pre-scientific and necessarily non-scientific. Conditional validity isthe hallmark of scientific proposition.27 But ethics is the very enterprisethat concerns itself with these pre- and non-scientific axiomata. and, hence,ethical imperatives are necessarily non-conditional.28

Medical science, for example, examines what generally to doifextremely premature neonates are to survive; but it is an ethical questionwhetherthey should. The latter question cannot be adequately rephrased in


conditional terms, such as “extremely premature neonates should surviveifthere are sufficient funds available andif the benefits outweigh the burdensof treatment.” The first condition does not concern themorality of treat-ment in reference to the neonates, but is concerned with thefeasibility ofthe – presumably moral – treatment in view of available resources. Thesecond condition is but a rephrasing of the key ethical question: Shouldextremely premature neonates be treated,that is, do the benefits outweighthe burdens. Such “escapist” rephrasing of the key questions is in fact quitecommon in clinical-ethical analyses where it may be concluded that “If theprinciple of autonomy in case X outweighs the principle of beneficence,and if the principle of justice only plays a secondary role in case X, strategyy rather thanz is indicated.” But again, the key ethical question iswhetherprinciple A, B, or C prevails in case X.

If this and similar clinical-ethical dilemmas demand a non-conditionalanswer, it cannot be a theoretical answer but must be a practical response.That is not to say that only actions will resolve the dilemmas, let alonethat any action will do given the impossibility of a theoretical justificationfavoring any particular action. Rather, the proper response will prescribean action (or omission) without that prescription demanding further justi-fication. That is to say, the prescription is self-evidently the proper, moralresponse to the present, contextual situation. Whenever we can askwhywe should abide certain presumably moral directives, they are not moralimperatives proper.29 It is in this sense that ethics is fundamentally apractical art rather than a theoretical science.

4. THE OBJECTIVITY OF PRACTICAL ETHICS

If ethics operates at the pre-scientific and – by definition – non-scientificlevel of the unconditional axiomatic presuppositions of any and all sci-ences, what is itsmodus operandi? Does ethicscreatethe moral basis ofall scientific knowledge much like the artist creates artifacts of beauty? Inthat case, ethics would lack all justificatory backing and, hence, no longerqualify as ethics. While no complete justification is ever possible givenethics’ pre-scientific status, it is not without an “objective” basis that grantsit its non-subjective, imperative character. This basis is the situation itselfthat “appeals” to us and “calls” for a particular responsive praxis.

Ethics, obviously, is not the only possible response to that call. It isn’teven the most common and appropriate response. Typically, the respon-sible and virtuous person will respond with appropriate and adequate, thatis, moralactions: When someone is bleeding, we attend to her wounds;

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when someone is shivering, we hand him a blanket. It is only out of wonderand doubt about the appropriate response that ethics is born. In formulatingthe appropriate, moral response to the situation at hand, ethics is a practicalenterprise. In basing that response on the appeal originating from the givensituation and in being, therefore, open to criticism in reference to that sameappeal, ethics is objective. an intersubjective situation not only appears tous in empirical and quantitative facts, but also as qualitative meanings andeven as ideal potentialities. As participants to the situation, we experienceboth what is the case and possible alternatives that could and/or should bethe case.

5. CLINICAL ETHICS

The same situational basis that grants ethics as justificatory, directivecharacter also grants certain forms of so-called “applied” ethics their speci-ficity. Structurally, these different ethics are the same, warranting theirdistinctly ethical character. Their specificity is granted by the context inwhich certain (sets of) moral dilemmas arise, and in which the respon-sive, morally justifiable courses of action yet to be uncovered have to berealized. Hence, clinical ethics, being essentially “bedside” ethics, will bespecified by the prescientific configuration of the bedside situation thatboth motivates, directs, and structures clinical care.

Central to the configuration of the clinical situation is the presenceof a diseased, handicapped, suffering human being whose needs invokea sense of “embarrassment”30 for other participants in the situation, acall for immediate and effective help. Those able to provide help, that is,professional health care providers, are “compelled” by the patient’s condi-tion to help, to do good, to be beneficent. This assistance takes the formof scientifically warranted, skillful, and cautions action, which, however,is also prompt, defying delays, irrespective of remaining diagnostic andprognostic uncertainties, and without guaranties for therapeutic success.Clinical medicine is not applied biomedical science. In as much as there isat all a theoretical science of clinical medicine, it arises from the acknowl-edgment that the care of the needs of individual patients remains lacking.Clinical medicine is first and foremost a practical response to the needs ofindividual patients.

Hence, clinical ethics – as the prescriptive study of clinical-medicalpractice under the aspect of morality – is necessarily characterized by aprofound concern for the well-being of individual patients, as well as themoral parameters of swift and urgent action in the face of limited sup-portive information. As Pellegrino and Thomasma point out, the clinician


mustmake moral decisions. He has not the scientist’s luxury of “on the onehand” and “on the other hand.” He just acts, and to act is to choose amongalternatives.31 Actions are never conditional because they are not revisable.Acting implies that any and all theoretical, hypothetical conditions are nolonger relevant. Hence, clinical-ethical reflections demand certainty con-cerning whether an intended clinical intervention is allowed, required, orprohibited: Conditional directives will not suffice.32

6. CLINICAL ETHICS CONSULTATIONS AND“THE ART OF MORAL ENGINEERING”

Can applied ethics be effective in health care and should it strive to be?33

While a negative answer to this rhetorical question seems out of thequestion, a positive answer does not go down easily either. The impliedassociation of ethics with the practice of engineering has already invokedcynical opposition. But why should such “moral engineering” raise eye-brows as long as it is practiced artfully (as Jonsen has suggested)?34 Is notthe very purpose of engineering to realize a course of action in a givencontext that common, established practices fail to realize? The engineerexamines the situation, specifies the exact nature of the problem, surveysdifferent possible strategies, weighs pro’s and con’s for each alternative,and enacts the appropriate strategy. Likewise, so it seems, once calledto the ward because of a moral deadlock, the clinical ethicist examinesthe case at hand, specifies the core dilemma, reviews different principlesand justifications, weighs, and recommends a specific moral course ofaction. Indeed, many decision-making diagrams for an ethical “work-up”of problematic clinical cases elaborate this basic pattern.

While the analogy between clinical ethics consultations and the art ofengineering is adequate in many regards, it is flawed in (at least) one verycrucial point: The engineermanufacturesa solution whereas the ethicistuncoversthe adequate and appropriate moral response in a given situation.Naturally, in manufacturing an effective solution, the engineer has to adjustto the situation in which the problem has arisen. But the primary criterionof success is effectiveness: the problem is solved. To attain this goal, ifnecessary the engineer may introduce elements into the situation that areradically foreign to the given situation. The situation itself is modified.And even if the solution to the problem can be found within the givencontext, its resolution and consequent disappearance already constitute ofmodification of the situation. On the other hand, an ethical analysis of agiven situation does not modify the situation but only increases our under-standing of it. And it may well happen that the ethical reflection leads one

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to conclude that there is no appropriate answer to this tragic situation butpassive acquiescence.

7. MEDIATING CLINICAL-ETHICAL DISPUTES

It may be objected that only in rare cases do the consultative interventionsby a clinical ethicist result in an enlightened interpretation that enablescare providers to again see the forest for the trees and act morally. Usu-ally the problem is a multitude of conflicting and incompatible ethicalinterpretations cherished by different care providers involved in the case,combined with an apparent unwillingness or inability to change one’s ownpoint of view or even to take serious other providers’ convictions. Moraldilemmas in clinical care generally do not arise out of a complete unclarityabout the values at stake, but out of clashes between the values of differentparticipants to the case.

This undeniable reality has led many an ethicist to conclude thatmodern societies, including most modern health care facilities, are utterlypluralistic in character. Care providers and patients are moral strangersto another: They do not “share enough of a concrete morality to allowthe common discovery of the basis for the correct resolution of a moralcontroversy.”35 Hence, it does not make much sense to even seek anenlightened interpretation and value clarification.

Fortunately, so it is argued, normative pluralism does not neces-sarily lead to anarchy. In their authoritativeThe Abuse of Casuistry36

(bio)ethicists Jonsen and Toulmin, recalling their experience as membersof the National Commission for the Protection of Human Subjects ofBiomedical and Behavioral Research, report that despite manifold diversebasic moral convictions, the Commission could come to agree on partic-ular ethical recommendations. As long as nobody asks “why?”. Likewise– so the story goes – after the signing of the 1948 United Nations Uni-versal Declaration of Human Rights, one of the representatives murmured:“Fortunately nobody askedwhywe agree.”

Rather than seeking a single, authoritative answer either via justifica-tory explanation or via judicial decree, the clinical ethicist should resolvebioethical disputes bymediatingthe manifold voices that are in conflict.“The purpose of mediation is to assist the parties by offering a process forreaching settlement. The mediator does not act as a judge and has no powerto impose an outcome upon the parties.. . . The outcome of the mediationis determined by the parties; they each exercise the authority to reject oraccept the offers presented them,” thus Dubler and Marcus suggest in their


recent guide onMediating Bioethical Disputes.37 Essential ingredients ofthis mediative process are the impartiality and neutrality of the mediatorand a “gain-gain” outcome (i.e., an outcome which each participant con-ceives as being more beneficial to him or her personally than continuingthe conflict).

Dubler and Marcus concede that mediation “is nothing more than auseful tool which, when applied with the right expertise, timing, andcare, can assist parties who are otherwise stuck in escalating conflict.”38

“[W]hen a determination has been made that a decision will be imposedupon one or all of the parties, either as a result of legal, moral, or clinicalconsiderations, and there is no room for negotiation, then mediation perse does not fit.”39 But how are such limiting considerations to be deter-mined and/or who determines them, notably when they are of a moralnature? While clinical and legal limitations may be obvious (e.g., a desiredintervention is technically impossible or prohibited by statutory laws),moral issues generally are not fixed. In fact, what are these bioethicaldisputes yet to be mediated all about, if not about moral issues? The meresuggestion that there may be moral considerations which arenot open formediation but set a limit to mediative efforts, undermines mediation as aresolutive mechanism for bioethical disputes.

Indeed, it had been reported by many clinical ethicists that their con-sultations often pertain to issues of poor communication between differentcare providers, of emotional disarray or burn-out, of hierarchy and colle-giality, rather than to genuinely ethical dilemmas. If we grant that clinicalethicists may and must address such non-ethical issues as well, mediationtechniques such as developed by ADR-experts are a valuable resource.But these techniques seem to have little or no bearing on the resolution ofethical dilemmas proper – unless, of course, one adopts the more radicalview that the mediated solutionis the ethical solution.

Indeed, Engelhart has disqualified any attempts to “convert” one par-ticipant to the debate to the view held by another as a form of forcingone’s own moral point of view onto someone else. The sole acceptablemodus operandiof clinical ethics is to seek “negotiated agreement.”40

Ethics establishes the formal constraints of such a process of free,negotiated agreement by designing procedures that guarantee a fair processof negotiation. A negotiated agreement to a moral dispute is an ethicalsolution and possibly the only ethical solution (at least in the context ofa pluriform society). There is but one ethical constraint to this process(Engelhardt prefers to call it a precondition to any ethics), that is, the freeand voluntary cooperation of each participant.

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As mentioned in the introductory paragraphs to this article, this is notthe proper place to review Engelhardt’s argumentation, leading us too faraway from the present theme; except for two related points. Firstly, bothADR-mediation and Engelhardt’s understanding of the role of negotiatedagreement suggest that the interests at stake in a bioethical dispute arethose of the participants to the debate, that is, the different health careproviders, maybe the institution, and at times the family. But their interestsare not central to the configuration of the clinical situation and the practiceof health care proper. As mentioned, it is the presence of a diseased, hand-icapped, sufferingpatientwhose needs invoke a sense of embarrassmentfor other participants in the situation. This sense of embarrassment maybe interpreted differently by different care providers, resulting in bioeth-ical disputes. But the interests at stake are those of the patient and it isupon those interests that any process of consensus formation should befocussed. Granted, all disputes on the wards, whether about patient careor otherwise, do involve costs for the care providers involved, and hencethey have an interest in the outcome. But fostering the patient’s interestsmay well involve a net loss for some or all care providers, rather than a“gain-gain” outcome.

Secondly, the impartial neutrality that characterizes the ADR-mediatorand the procedural formality that Engelhardt advocates are at odds withthe very essence of ethics as the active procurement of prescientific, non-conditional and directive knowledge. Mediated and negotiated resolutionsderive their imperative quality from the participants’ acknowledgement oftheprocessresulting in these resolutions, rather than from the resolutionsthemselves. Hence, these resolutions are conditionally rather than self-evidently moral. The prototype of conditional imperatives are laws andtheir imperative strength depends on the perceived fairness of the politicalprocess via which they were rendered. It is onlyif one underwrites thatpolitical process (orif one fears its power to punish) that laws are binding.

While there is an important part to be played by laws in the regulationof clinical practice, and while health care, therefore, is properly an itemon the agenda of politicians, we should not lose sight of the significantdifferences between legal and ethical imperatives. This is ever the moreimportant for those involved in clinical-ethical consultations. Not only arelegal directives conditional (although they tend to be perceived by careproviders as more authoritative than ethical directives); their groundingis external to the practice of health care. Whereas clinical ethics is con-cerned with the axiomatic presuppositions of clinical medicine itself (i.e.,its internal morality41), health care laws are intended to balance – and attimes even restrain – clinical medicine’s internal morality against external


concerns such as economic interests, scientific progress, personal libertyrights, or social justice.

8. CLINICAL CONSULTATIONS: CONCLUDING REMARKS

If clinical ethics does not speculate about the ideal foundations of clinicalmedicine (which is the proper task of a theory of clinical-medical practice);if it does not set the axiomatic conditions of clinical practice (for they areinternal to that practice); if it does not even attempt to balance that internalmorality with external moral imperatives (leaving that task to politics andlaw); what, then, is the proper function of clinical ethics?

Indeed, I propose that the task of the clinical ethicist is quite limited:To explicate, when and where necessary, what is in the best interests ofan individual patient and to clarify the care provider’s professional moralobligations in the given context, such that the care provider is educatedtowards delivering morally sound care. In most instances, this processof explication and clarification will require that the ethicist finds waysof “enabling appropriate and timelyhearings” of the many voices of theparticipants to the clinical situation.42 It may even involve dispute resolu-tion strategies to get the care providers to join in these ethical reflections.But it is not consensusper sethat is the measure of a successful ethicsconsultation. Rather, it is a shared conviction that the resulting course ofaction (or passive acquiescence) is, indeed, in the patient’s best interest aswell as appropriate in the given context, and hence indicated.

In many, if not most, instances no such completely shared convictionswill emerge. Time restrains and the obvious need to determine a course ofaction may not allow for extended dialogue. Reservations and uncertain-ties will remain. But then, clinical practice, by definition, occurs underconditions of uncertainty. It is not up to the ethicist to manufacture aresolution where none emerges. The authority and responsibility for act-ing despite uncertainties lies with the attending care provider. However,that is not to say that the ethics consultant should refrain from report-ing (e.g., in the patient’s file) the obtained explications and clarifications.Such reports can and should have educational value and hopefully foster adeeper understanding of future troublesome cases.

9. EPILOGUE

Ever since I started thinking about the title of this article, a thorny questionhas been bothering me: “What is the status of the article itself: theory or

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practice?” While strong arguments favor the view that clinical ethics isa thoroughly practical enterprise; while ethics itself may be best under-stood as essentially practical rather than theoretical – what is the nature ofthose “strong arguments” and that “understanding” such as outlined in thisarticle? If the article’s inclusion in this special issue on theory of practice isjustified, it is not ethics. On the other hand, if this article qualifies as ethics,in what sense is it practical? This dilemma is further complicated by thefact that any attempt to argue in favor or against one of the two possibleanswers will reinvoke the dilemma: What is the status of these epilogicreflections?

The evident answer seems to be the former: This article is best char-acterized as a theoryof ethics. Any talkabouta practice cannot be practicalitself. Meta-ethics is not ethics. Indeed, what generally goes under theheading of meta-ethics, the analysisof prescriptive language, is itselfdevoid of prescriptive, practical cogency. Furthermore, the realm of theoryseems to allow for an endless regression into ever higher meta-levels with-out ever becoming something else but theory – which also takes care of thestatus of this epilogue.

Meta-ethicists such as Hare, however, are bound to protest againstclassifying this article as a study in meta-ethics. Indeed, this article hardlydescribes how clinical ethic(ist)s actually work(s). Rather, the articleasserts how the practice of clinicaloughtto be understood. This proposed“self-understanding” of clinical ethics is developed as “meta-praxis,”whereby the Greek prefix “meta-” does not indicate a higher level, butrather “in the midst of” and “together with.”

A good clinician is concerned about each and every patient as anindividual person rather than as an example of a medical category withtheoretical significance. Nevertheless, the clinician’s practical concerns arealways “accompanied” by a tacit understanding of what clinical medicineis all about. An explication of that tacit understanding, such as may beevoked by a problematic case, involves some distancing from the prac-tical routines, but not from the practice as such. The patient remains theorigin and end of such reflections. Likewise, the practical considerationsof the ethicist involved in a bed-side consultation are always accompaniedby meta-practical reflections concerning the proper self-understanding ofclinical ethics.

Undoubtedly, the status of “meta-practical” considerations is ques-tioned more frequently and intensely where ethics is concerned ratherthan clinical medicine. This special issue ofTheoretical Medicineis astrange duck in the pool of medical publications. On the other hand, everyother ethics publication is concerned with the proper self-understanding


of clinical ethics. But then, this may be more indicative of the state ofaffairs of contemporary clinical medicine than of contemporary clinicalethics.

NOTES

1 See, e.g., the publications by University of Chicago based internist Mark Siegler, suchas his 1979 article: Clinical ethics and clinical medicine.Archives of Internal Medicine1979: 139: 914–195, and his 1981 article: Cautionary advice for humanists.Hasting CenterReport1981; 11(2): 19–20. A similar position is taken by La Puma and Schiedermayer(both physicians and both graduates of Siegler’s training program):Ethics Consultations:A Practical Guide. Boston/London: Jones & Barlett Publishers, 1994.2 Tongeren P van. Gebaarlijke Aandacht voor de Ethiek.Contact1992; 47: 1378–1379,p. 1378.3 Lyon-Loftus GT. What is a clinical ethicist?Theoretical Medicine1986; 3: 41–45,p. 42.4 Wynen A. The World Medical Association on the rights of the patient and euthanasia.Vita Humana: Tijdschrift voor Medische Ethiek1988; 15(3): 87–90, p. 87.5 Vandenbroucke JP. Medische ethiek en gezondheidsrecht: Hinderpalen voor de verderetoename van kennis in de geneeskunde.Nederlands Tijdschrift voor Geneeskunde1990;134(1): 5–6.6 Does de Willebois J van der. Studiedag, Het embryo, een mens.Katholiek NieuwsbladNov. 15, 1988.7 The model of applied ethics is aptly illustrated by the three functions outlined by Dutchbioethicists Dupuis and de Beaufort: Ethicists can (1) create terminological clarity, (2)devise a taxonomy of moral problems, and (3) apply normative theories to those problemsand suggest solutions. Dupuis HM, Beaufort ID de. Ethiek: Wat is het en wat kan men ermee? In: Beaufort ID, Dupuis HM, eds.Handboek Gezondheidsethiek. Maastricht/Assen:Van Gorcum, 1988: 7–20.8 Nielsen K. On the need for “moral experts”: A test case for practical ethics.The Inter-national Journal of Applied Philosophy1984; 2(1): 69–73, p. 72.9 Van Tongeren, 1992 (see note 2), p. 1378. See also: Tongeren P van. Ethiek en praktijk.Filosofie & Praktijk1988; 9: 113–127; and Zwart H.Ethische Consensus in een Pluralis-tische Samenleving. Amsterdam: Theis Publishers, 1993.10 In 1991 and in 1993 two Dutch reports were published examining the feasibilityof “moral management” in health care institutions, creating a common moral frame ofreference that can encompass all particular substantial moral perspectives. (1) WilligenburT van, Verweij M, Kleemans C, Kloot Meijburg H van der.Ethiek, Levensbeschouwingen het Moral Management in instellingen voor intramurale gezondheidszorg. Utrecht:National Ziekenhuisinstituut, 1991. (2) College voor Ethische en levensbeschouwelikjeAspecten van de Zorgverlening.Mogelijkheden voor Moral Management. Utrecht: Neder-landse Zorgfederatie, 1993.11 Van Tongeren, 1992 (see note 2). The Groningen Philosopher Van Epenhysen hasargued that the conclusions of ethics committees (such as IRBs) tend to be arbitrary;they provide a comforting pseudo-moral sanction of the research, but that has more to dowith the rhetoric than ethics. Epenhuysen LS van. Het biechtgeheim van medisch ethischetoetsingscomnmissies.Filosofie & Praktijk1993; 14, 1: 28–37.

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12 Vries G de. Medisch-ethici zijn overbodige amateur-juristen.VolkskrantMarch 4,1993.13 Boomkens R. Weg met de ethiek!Krisis 1992; 48: 56–61.14 Ph-Report (an anonymously published collection of contributions from Germanopponents of bioethics, issued in 1990). For a selection of these documents, see SassHM, Biefhues H, eds.Vierte Jahrestagung der European Society for Philosophy of Medi-cine and Health Care. Bochum, Zentrum für Medizinische Ethik, 1990 (MedizinethischeMaterialien, Vol. 59 – July 1990). For a critical discussion, see for example, Sass HM.Subcultural Technophobia and Medical Ethics.Newsletter of the European Society forPhilosophy of Medicine and Health Care1990; November: 19–25, and Schöne-Seifert B,Rippe KP. Silencing the singer; Antibioethics in Germany.Hastings Center Report1991;21(6): 20–27.15 For insightful analyses of the structure of medical practice, see Wieland W. The conceptof the art of medicine. In: Delkeskamp-Hyes C, Cutter MAG, eds.Science, Technology,and the Art of Medicine. Dordrecht/Boston: D. Reidel, 1993: 165–182. And: Wiesing U.Episemology and medical ethics.European Philosophy of Medicine and Health Care –Bulletin of the ESPMH, 1993; 3(1): 5–20.16 For a recent publication on the presumed affinity between alternate dispute resolutionand clinical ethics consultation, see Dubler NN, Marcus LJ.Mediating Bioethical Disputes.New York: United Hospital Fund of New York, 1994.17 La Puma and Schiedermayer take “facilitating negotiations” to be one of the ethicsconsultant’s skills. They emphasize that “negotiation requires an emphasis on commoninterests instead of on opposing positions” and propose a “Socratic give-and-take”approach (I am not sure which Socrates they are referring to, but the point is clear). Onthe other hand, they admit that “the role of negotiator may include using persuasion, asethics consultants have a professional obligation to effect ethically permissible outcomesin their cases”. La Puma and Schiedermayer, 1994 (see note 1), pp. 50–53.18 Welie JVM, In the Face of Suffering: Prolegomena to a Philosophical Foundationof Clinical Ethics(Diss), Nijmegen, The Netherlands, Catholic University of Nijmegen,1994.19 The adjective “ethical” will likewise refer to the study of moral issues, and “moral”to the practice or practitioners. Thus, a moral person is somebody with a good character,behaving in a justifiable manner. An ethical analysis, on the other hand, is an analysis thatemploys the philosophical methods for studying the justifications of actions.20 “Genuine ethics” as opposed to so called “meta-ethics”, the linguistic analysis of themeaning of ethical language, which supposedly is itself morally neutral.21 Visscher J de. Ter inleiding.Wijsgerig Perspectief1993; 33(4): 101. See also: Wal GAvan der. In praise of moralism: Pleidooi voor eerherstel van een verwaarloosde vorm vanethiekbeoefening.Wijsgerig Perspectief1993; 33(4): 102–107.22 Sidgwick H.The Methods of Ethics. 6th ed. London: MacMillan Publishing Co., 1901,p. vi, 12–13.23 Wieland W.Aporien der praktischen Vernunft. Frankfurt am Main: Vittorio Koster-mann, 1989. For (critical) discussions of Wieland’s ideas, see the articles of Hucklenbroich,Paul, and Wieseman elsewhere in this issue ofTheoretical Medicine.24 Aristotle, Nichomachean Ethics, Indianapolis: Bobbs-Merrill Educational Publishing,1981, § I.3.25 Hare RM.The Language of Morals. Oxford/New York: Oxford University Press, 1975,p. iii.26 See, e.g., Toulmin S.An Examination of the Place of Reason in Ethics. Cambridge:


Cambridge University Press, 1950. Baier K.The Moral Point of View. A Rational Basis ofEthics. New York: Random House, 1965. Perry TD.Moral Reasoning and Truth. An Essayin Philosophy and Jurisprudence. Oxford: Clarendon Press, 1976.27 Meith D. Moral und Erfahrung. Freiburg: Universitätsverlag\Verlag Herder, 1977,p. 23. See also Wiesing U. Epistemology and Medical Ethics.European Philosophy ofMedicine and Health Care – Bulletin of the ESPMH1995; 3(1): 5–20.28 Kant I. Grundlegung zur Metaphysik der Sitten. Frankfurt a.M.: Suhrkamp, 1974.29 Van Tongeren, 1988 (see note 9), p. 117.30 Zwart, 1993 (see note 9), p. 22.31 Pellegrino ED, Thomasma DC.For The Patient’s Good: The Restoration of Beneficencein Health Care. New York/Oxford: Oxford University Press, 1988, p. 35.32 Wieland W. Strukturwandel der Medizin und ärztliche Ethik: Philosophische über-legungen zu Grundgragen einer praktischen Wissenschaft. Heidleberg: Carl Winter Uni-versitätsverlag, 1986, p. 32. Wieland’s (and my) point of view is diametrically opposedto Skeel and Self who suggest that the clinical called in to consult on a troublesome casecan only make “probability statements but cannot provide definitive answers to complexquestions”. Skeel JD, Self DJ. Ethics in the clinical setting. In: Fletcher JC, Quist N,Jonsen AR.Ethics Consultatations in Health Care. Ann Arbor: Health AdministrationPress, 1989: 53–59, p. 55.33 I am borrowing the question form Caplan’s 1983 publication entitled: Can appliedethics be effective in health care and should it strive to be?Ethics1983; 93(Jan): 311–319;reprinted in Ackerman TF, Graber GC, Reynolds CH, Thomasma DC,Clinical MedicalEthics. Exploration and Assessment. Lanham: University of America Press, 1987: 131–143. The title of the present paragraph, i.e., “The Art of Moral Engineering”, Caplan usedfor the final paragraph of this 1983 publication. Unfortunately, in his article Caplan did notelaborate on what exactly constitutes the “art” of moral engineering.34 To counteract the negative connotations of engineering, the Dutch ethicist Theo vanWilligenburg has proudly and publicly proclaimed himself to be an ethics engineer (in hispublication with the same title: Ik ben een ethisch ingenieur! In: Brom FWA, Bergh BJvan, Huibers AK, eds.Beleid en Ethiek. assen: Van Gorcum, 1993: 189–204).35 Engelhardt HT.Bioethics and Secular Humanism: The search for a common morality.London/Philadelphia: SCM Press/Trinity Press International, 1991, p. xiv.36 Jonsen AL, Toulmin S.The Abuse of Casuistry: A History of Moral Reasoning.Berkely: University of California Press, 1988.37 Marcus LJ. Mediation and medical ethics: An Overview. In: Marcus & Dubler, 1994(see note 17): 13–32, p. 19.38 Ibid: 30.39 Ibid: 28.40 Engelhardt HT.The Foundations of Bioethics. New York/Oxford University Press, 1986(first edition) and 1996 (second edition).

It should be pointed out that Engelhardt uses the term “negotiation” in a broader sensethat ADR-experts such as Marcus. In ADR, negotiation is only one strategy to reach aresolution. In negotiation, the negotiator is partisan advancing one parties interests; inarbitration, the arbiter starts out being neutral but in the end does take sides in rendering ajudgment; in mediation, the mediator remains neutral and impartial. However, the variousparties to mediation may well perceive the process of reaching a “gain-gain” settlementas one of give-and-take, that is, of negotiation. This is the sense in which Engelhardt usesthe term. Nevertheless, it may be the partisan connotation of the term that has causedEngelhardt to use the term less frequently in the 1996 second edition of hisFoundations.

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41 For a discussion of the notion of medicine’s “internal morality,” see the contribution byTen Have and Lelie elsewhere in this issue ofTheoretical Medicine.42 Zaner RM. Voices and Time: The venture of clinical ethics.The Journal of Medicineand Philosophy1993; 18: 9–31, p. 28.

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CEREC Center for Southeast FloridaPO Box 2929323Ft. Lauderdale, FL 33329, USAandBarry University School of Pediatric Medicine11300 Northeast Second AveMiami Shores, FL 33161, USA

clinical ethics: theory or practice?

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