Medicine, Health Care and Philosophy 6: 227–233, 2003.© 2003 Kluwer Academic Publishers. Printed in the Netherlands.

Ethical case deliberation and decision making

Diego GraciaDepartment of Public Health and History of Science, School of Medicine, Complutense University of Madrid, 28040 Madrid, Spain(E-mail: dmgg@med.ucm.es)

Abstract. During the last thirty years different methods have been proposed in order to manage and resolve ethicalquandaries, specially in the clinical setting. Some of these methodologies are based on the principles of Decision-making theory. Others looked to other philosophical traditions, like Principlism, Hermeneutics, Narrativism,Casuistry, Pragmatism, etc. This paper defends the view that deliberation is the cornerstone of any adequatemethodology. This is due to the fact that moral decisions must take into account not only principles and ideas,but also emotions, values and beliefs. Deliberation is the process in which everyone concerned by the decision isconsidered a valid moral agent, obliged to give reasons for their own points of view, and to listen to the reasons ofothers. The goal of this process is not the reaching of a consensus but the enrichment of one’s own point of viewwith that of the others, increasing in this way the maturity of one’s own decision, in order to make it more wiseor prudent. In many cases the members of a group of deliberation will differ in the final solution of the case, butthe confrontation of their reasons will modify the perception of the problem of everyone. This is the profit of theprocess. Our moral decisions cannot be completely rational, due to the fact that they are influenced by feelings,values, beliefs, etc., but they must be reasonable, that is, wise and prudent. Deliberation is the main procedure toreach this goal. It obliges us to take others into account, respecting their different beliefs and values and promptingthem to give reasons for their own points of view. This method has been traditional in Western clinical medicineall over its history, and it should be also the main procedure for clinical ethics.

Key words: clinical medicine, conflict of value, decision-making, deliberation, ethical problem, nosology, reason

Since the Hippocratic writings at the beginning ofWestern medicine, ethics and clinical medicine havebeen two inseparable concepts. This is due, in the firstplace, to the fact that, as the author of the Hippocraticwriting The Physician points out, “possessions veryprecious” (Hippocrates, 1981, p. 313) pass through thehands of physicians. However, there is also anotherreason, which is perhaps more important than thefirst. And this is that medicine and ethics share thesame methodology. At first hearing, this may appearstrange but after calm reflection it ceases to do so.An ever-surprising fact is that ethics methodology verylikely stems from clinical methodology, more specific-ally from the Hippocratic clinical methodology. Aris-totle was the author of this modification. Son of adoctor, always concerned about medical issues and atireless investigator into biological matters, Aristotlevery probably became interested in ethics through hisinterest in medicine. In his Nicomachean Ethics, wherehe describes the logics of practical reasoning, he isnot only thinking of ethics and politics but also, ashe himself points out, of technology, especially thatwhich in his age had become paradigmatic, the téchneiatriké, medical technique, medicine. The theories

of deliberation, practical wisdom, intermediate point,probable reasoning, decision making in uncertain situ-ations, etc., are applied to medicine and ethics in thesame way (Aristotle, 1995, p. 295).

However, things have changed greatly since Hippo-crates’ times, especially in the last few decades. Thisis due to many reasons, the first one being the qual-itative change in medical technology. Our technologyis no longer the téchne of Hippocrates or Aristotle. Itis something completely different. According to theancient Greeks the aim of technology was to changethe state of natural substances – a mere change of acci-dents without altering the substance. It should also bepointed out that ancient technology changed (accident-ally) but did not transform (substantially). This wasthe alchemists’ great challenge, they did not just wantto change reality but transform it, transmute it, tran-substantiate it through the use of technical processes.Their condemnation was unanimous. The technicianhad to look for more humble objectives, such as thoseof the carpenter or the ironmonger. Neither of themproduced the substances they worked with; wood oriron. They did not aim to create wood or iron, onlyto change its state as regards quantity, relation, etc.,

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in order to make a table, a chair or a coat of arms.Aiming to substantially change nature was not onlythought to be practically impossible but also ethicallyunacceptable. It would be like playing God.

Modern technology, however, has taken this greatleap, which for many centuries was thought to beimpossible. The alchemists were right when theywanted to transmute metals as this has been achievedby modern chemistry. The human being not only playsGod: he is in fact a “little divinity,” as Leibniz (Leibniz,1995, p. 639) points out. Human beings cannot createa new reality from nothing, as God does, but theycan transmute or transform it. Such is the origin ofmodern technology. Human beings are not the servantsof nature but its masters; they have the power in theirhands to make and unmake, to manipulate everything,including life and death. The old idea that trans-formation of nature is intrinsically perverse can nolonger be sustained. This ethical barrier has also fallen.However, this does not mean that all ethical controlhas been lost. Much to the contrary, it is now moreimportant than ever. Taking this into account, ethicsand technology, ethics and the technical aspects ofmedicine, i.e., ethics and clinical medicine, meet againthrough a different route. This new encounter compelsus to define the rules of the game, right from the start.

The clinical method

Clinic comes from the Greek word klíne, the meaningof which becomes clear when we think of other wordsthat derive from it such as “inclination,” “triclinic,”“climate” or “climacteric.” The most usual meaningof klíne was “bed.” “Clinical” also derives from klíne,a clinical activity is one carried out at the patient’sbedside. It is always a specific, individual activity,its aim being to diagnose and treat a certain, specificpatient. It is different from nosology or the study ofthe so-called morbid species, or universal diseases.The study of a morbid species such as pulmonarytuberculosis is not the same as the diagnosis andtreatment of a specific patient with tuberculosis. Thespecies is universal whilst the patient is particular. Thesame difference exists between them as that whichexists between a botanical or zoological species anda specimen of one. Nevertheless, the categorisationof diseases as species is much more problematic anddisputable than that of animals and plants because apatient may have several morbid species, but an animalor plant specimen can only be of one species.

In any event, Western medicine in its originsdecided that there are morbid species and specificpatients, and that the same difference exists betweenthem as exists between natural species and individuals

or specimens. This is the origin of expressions stillused today such as the “natural history” of diseases.Western medicine opted for understanding disease as anatural occurrence, attempting to interpret it by usingthe same categories as in nature, especially livingnature.

Such is the origin of the standard distinctionbetween nosology and clinical medicine, which allhealth professionals learn in the first years of theirtraining. Nevertheless, there is one thing that is nottaught, although it is of utmost practical importance,i.e., the different logic of these two types of knowl-edge. The reasoning of nosology and that of clinicalmedicine is completely different and has been differentsince the origin of Western medicine. The logics ofnosology cannot be claimed by those of clinical medi-cine, nor vice versa. The classical theory, in effectfrom ancient Greek times until the 17th century, wasthat the same difference existed between clinical medi-cine and nosology as that between primary substanceor ousía and secondary substance or tò tí estín. InLatin the first is substantia, and the second essentia.Substance is particular whilst essence is universal.They differ in the same way as a human being differsfrom humanity. All human beings form part of thesame species and therefore we share the same specificessence, even though we may have individual vari-ations. Essence, therefore, is what makes us part ofthe human species. Aristotle defined the human speciesas zóon lógon échon; translated into Latin as animalrationale. This is the essence of a human being andconsequently, of the human species. An individual isa member of the human species if he or she possessesthese two characteristics, i.e., he is animal and he isrational.

For ancient people species had reality, but thisreality is not the same as that of individuals. We areaware of the reality of individuals through senses,their properties and characteristics. In contrast, thereality of species, i.e., of the universal essence, is notdirectly accessible by senses, only by understanding,by reason. Reason is what differentiates the commonand specific from the individual, and in this way penet-rates into the essence of things. By being universal,knowledge of essences is by definition certain. Thereis no room for doubt here. For this reason, Aristotleassigned this type of knowledge to the category ofepistéme, “science.” Here science means necessary,universal knowledge; therefore certain. In medicinethis type of knowledge is proper to nosology, there-fore knowledge of morbid species is universal andcertain, i.e., “scientific.” On the other hand, knowledgeof a specific individual’s disease is always uncertain,as it depends on our capability to interpret signs andsymptoms of this specific reality, and this is always

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limited. In classic thinking concretion is always moreproblematic than abstraction. As regards specific indi-viduals, “science” is never appropriate, only “opinion”(dóxa). Therefore, the logics of nosology are notthe same as the logics of clinical medicine. Thelogics of nosology, according to the ancients, are“apodictic” and “demonstrative;” they have a truevalue similar to those of mathematical theories. Thereis little room for error and even less for uncertainty.On the other hand, the logics of clinical medicineare those of uncertainty. We shall never be able toexhaust the wealth of a specific reality, and thereforeour judgements on it shall be at the most “prob-able.” Against the apodicticity of nosology there is theprobability of clinical medicine. That is why “uncer-tainty” always rules in clinical medicine. Certainty isimpossible. Consequently, one can or should neverexpect that one’s conclusions are “certain;” they canonly be “reasonable.” Coming to a reasonable decisioninvolves always carefully weighing up the main inter-vening factors, in order to be as reasonable aspossible. The Greeks named this reasonable weighingup boúleusis, “deliberation.” And the reasonabledecision arrived at after prolonged deliberation theynamed as being “wise” or “prudent.” When epistémesays “demonstration,” dóxa adds “deliberation,” andwhen epistéme says “certain,” dóxa says “wise” or“prudent.” “Deliberation” and “practical wisdom” arethe two basic conditions for “practical reasoning,” inthe same way as “demonstration” and “certainty” arethose for “theoretical reasoning.” For the ancients,the paradigmatic example of theoretical reasoningwas mathematics. In contrast, practical reasoningwas concerned with ethics, politics and techniques ingeneral.

We can now understand why clinical medicineand ethics have shared the same logic throughouttheir history: because both used a similar type ofreasoning, the two main characteristics being deliber-ation and practical wisdom compared to demonstra-tion and science. Nobody expects that their clinicaldecisions will be absolutely certain, and that theywill not need future rectification. What’s more, inmedicine it is quite possible that two wise and exper-ienced professionals, deliberating on the same case,will reach different diagnostic, prognostic and thera-peutic decisions. Always admitting more than onesolution is characteristic of wise reasoning. One ormore decisions can be reached on the same event,all of them prudent, and not only different but evenopposing. This is characteristic of clinical medicineand also of ethics.

This way of thinking did not begin to change untilthe 17th century, due to works by Empiricist philos-ophers such as Locke and doctors such as Sydenham.

Empiricism showed that Aristotle’s analysis of prac-tical reasoning was much more consistent than thatof the speculative reasoning, and therefore that hispractical wisdom theory was more coherent than hisscience doctrine. According to the empiricists allempirical knowledge is imperfect, and this imper-fection increases when the formulation of universalpropositions are attempted, which is what sciencedoes. On this point, about the truth of science Aristotlewas mistaken. There is no absolutely true empiricalknowledge. This only applies to relations of ideas,in the so-called analytical judgements, which areproper to non-experimental sciences, such as logicand, perhaps, mathematics. Nosology is an experi-mental science and therefore by definition it is uncer-tain. Nosology shares the same fate as clinical medi-cine: furthermore, it may and should be conceived asuniversalised clinical medicine, i.e., as the universal-isation of the specific data collected during the clinicalprocess. Nosology is arrived at, therefore, throughclinical medicine, and consists of the generalisationof data acquired in the clinical process. From the17th century, therefore, purely “nosologic” or essentialprocedure had given way to a very different procedureof a “nosographic” or descriptive character. Since the17th century up to the present time there have beenrepeated attempts to reintroduce essential, speculativeknowledge into both medicine and ethics. There havebeen three significant movements in this respect: 17thcentury Rationalism, 18th century Idealism, and 19thcentury Positivism. All three movements attempted tore-establish empirical knowledge on certain, scientificbases, and all three have failed in this attempt. Neverhas there been such an apparent awareness of thisfailure as in the 20th century, and more specifically,in the last few decades. In spite of the fact that thereare still many dogmatic doctors, anti-dogmatic aware-ness in medicine has never been so apparent as it istoday. And in spite of the fact that there are still manydogmas in ethics and bioethics, never has there beenthe possibility for extensive, shared deliberation onthese issues in search of reasonable, wise decisions,as there is today.

The method of clinical ethics

Moral judgements, as well as medical ones, are pri-marily empirical and specific. They comply with theprinciple that the specific reality is always richerthan our intellectual thinking and therefore surpassesit. Thus, the decision-making procedure is not apure mathematical equation, but a careful, thoughtfulanalysis of the main factors involved. This is whatis technically known as “deliberation.” There is clin-

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ical deliberation, which the health professional carriesout every time he treats a patient, and there is ethicaldeliberation. Ethical deliberation is not an easy task.In fact, there are many people who do not knowhow to deliberate, and then there are others whoconsider deliberation to be unnecessary or even unim-portant. That which occurs in clinical deliberationalso occurs in ethical deliberation. Some professionalsmake decisions quickly, as a reflex reaction and do notgo through the long patient evaluation process. This isoften justified appealing to the so-called “good clin-ical eye.” Just as some professionals think they have agood clinical eye, others think they have good moralinstinct (Gracia, 1991, pp. 9–10). These professionalsthink they already know the answer, and there is noneed for deliberation. This is usually due to fear or alack of confidence as regards the deliberation process.For this reason, practicing deliberation may be said tobe a sign of psychological maturity. Those dominatedby anxiety or unconscious emotions, do not deliberateon the decisions they make, but act automatically, onan impulse, as a reflex reaction. Only those who areable to control their feelings of fear or anxiety willhave the integrity and presence of mind that deliber-ation requires. Our emotions cause us to make extremedecisions, complete acceptance or refusal, love or hate,and turn conflicts into dilemmas, i.e., into problemswith only two solutions, these also being extremeand opposed (Gracia, 2001, pp. 223–232). Reducingproblems to dilemmas is generally due to anxiety.Deliberation attempts to analyse problems in all theircomplexity. This means weighing up the principlesand values involved as well as the circumstances andconsequences of each case, and thus enable all, orat least most, of the possible courses of action to bedetermined. As a general rule there are always fiveor more possible courses of action; if less are deter-mined then the analytical process is likely to be flawed.Furthermore, the best course of action is not gener-ally one of the extremes; it is one that is midway orclose to it. The result of a deliberation process, there-fore, is usually very different from that of dilemmaticprocedures. As Aristotle said, virtue is usually at anintermediate point.

The deliberation process requires careful listening(anxiety prevents a person from listening to another,precisely because they are afraid of what the othermight say), an effort to understand the situation athand, analysis of the values involved, rational argu-ment of the possible courses of action and of the mostappropriate one, non-directive advice and help even ifthe chosen option by he or she who has the right andduty to make this choice, does not coincide with thatwhich the professional considers to be the correct one,or else referral to another professional.

Deliberation in itself is a method, a procedure.Therefore, correct deliberation must go through certainestablished stages. Critical analysis of bioethical casesshould always consist of the following basic steps:

1. Presentation of the case by the person responsiblefor making the decision.

2. Discussion of the clinical aspects of the medicalrecord.

3. Identification of the moral problems that arise.4. The person responsible for the patient chooses the

moral problem that concerns him or her and thathe or she wishes to analyse.

5. Determination of the values in conflict.6. Tree of courses of action.7. Analysis of the best course of action.8. Final decision.9. Decision control consistency: Check the consist-

ency of the decision made by putting it to thelegality test (is this a legal decision?), the publi-city test (“would you be prepared to defend itpublicly?”), and to the consistency in time test(“would you arrive at the same decision in a fewmore hours or a few more days time?”).

It is always desirable to follow some kind of procedure,whether it is this or another one. Ethical problems arealways connected to conflicts of value, and values aresupported by facts. Therefore, the procedure must startwith a detailed study of the clinical facts. The clearerthese are the more accurate the identification of valueconflicts will result. A good medical record is alwaysthe basis of a good clinical round, and also of an ethicalround.

The most complex point of the above procedure ispoint seven – deliberation on the morally most appro-priate course of action. Assessing the quality of acourse of action consists of two stages: 1. Checking itscompliance to the principles at issue and 2. Assessingthe likely consequences. Extreme principlists oftenclaim that decisions should be made based on abso-lute, immutable principles. Extreme consequentialists,on the other hand, consider that the correctness of anact may only be measured by its consequences. Boththeories have been, and are, defended in Ethics, butthey are clearly extreme standpoints, and as such along way from being that of the majority. Some authorsrefer to some kind of “common sense” or “commonmoral sense” and claim that there are universal deont-ological principles such as do not kill or do notlie. However, these authors consider that there areexceptions to all principles, and these are justifiedby the circumstances of each case and the likelyconsequences.

There is no known deontological principle that canbe said with absolute certainty to have or probably

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have no exceptions, unless this principle is formu-lated purely analytically and consequently tautolo-gically. This is an error of logic that often occursin ethics. Analytical judgements are those in whichthe conclusion is already contained in the premises:that is why they say nothing new but just repeat thatwhich we already know from the premises. Analyt-ical judgements are named as such because they wereassumed as being independent of or prior to empir-ical experience. On the other hand, synthetic judge-ments come about as a result of interaction betweenexperience and human intelligence. These days mostphilosophers do not agree with this, due to the factthat they think that the so-called analytical judge-ments are also based on experience. They are onlydifferent because that which is asserted in them is oftenincluded in the subject, so they are always and neces-sarily tautological. Therefore, always necessarily true.For example, in the judgement that “cruelty is alwaysmorally reprehensible,” cruelty already has a negativemoral quality; what is more, if we were capable ofimagining a circumstance in which cruelty did nothave a negative moral connotation, judgement of itwould not be analytical, and it could not be precise.Acts of cruelty by a mentally deranged person or asleepwalker for example would be considered as notsubjectively reprehensible (because the subject lackedthe voluntariness to commit this act). However theyare objectively reprehensible because the act in itself isstill wrong. But here is where the true difficulty arises.Kant clearly saw that only bad will is bad “withoutqualification” (Kant, 1995, p. 1062). Bad will cannever be good will, because of its subjective nature.However if we take the voluntariness away from the actand focus on its objective dimension, it is impossibleto consider it as being always morally reprehensible.Sometimes a person may lie, or may kill, even an inno-cent person. It is true that these circumstances makethe case more serious and moral justification muchmore difficult, but it cannot be said that there is not orcannot be a situation that would make it morally justi-fiable. Amongst other things, because we do not knowall the possible situations and therefore, we cannotclaim that these justifying circumstances did not existor never could exist. History is a good witness in thiscause. And even if it were not, the logical principlethat absolute or unconditioned universality and neces-sity, which are characteristic of analytical judgement,cannot be applied to synthetic judgements which moraljudgements are, would still prevail.

The practical consequences of all of the above isthat moral deliberation should take place in two stages.The first stage is to check that the course of actionobeys the deontological principles. The second stageis to evaluate the circumstances and consequences in

order to determine if these allow or require an excep-tion to the principles. The primary obligation is tocomply with the principles and he/she who wishesto make an exception takes on the burden of theproof, and therefore must prove that the exceptionmay and should be made. This is just a mere excep-tion, not another principle. An exception is alwaysexceptional, and ceases to be so when it becomes aprinciple. It is true that there is a risk of escalatingexceptions into principles. This abuse is not justifiedby theory. Theory only says that there are circum-stances that allow certain exceptions to principles. Inmedicine, there are situations that justify breachingthe principle of veracity. This is the origin of the so-called “white lie,” or of the exception to informedconsent known as “therapeutic privilege.” Telling thetruth in all circumstances is, at the least, irresponsible.Ethics that articulate principles and consequences goby the name of “ethics of responsibility.” Bioethics ispractised by the majority of its cultivators (althoughnot all, because there still exist strict deontologicalstances that consider certain deontological principlesto be absolute and with no exceptions, and strictteleological viewpoints for which the correctness ofan act is measured only by the maximisation of itsconsequences) according to the categories character-istic of the ethics of responsibility.

In practice the following steps may be taken toassess the ethical quality of a course of action:

I. Check the compliance of the course of action withmoral principles:

1. Analyse the principles involved in the case:autonomy, beneficence, nonmaleficence, justice.The principles of nonmaleficence and justicehave a public nature, and therefore determineour duties towards each and every human being,both as regards their biological life (principleof nonmaleficence) and their social life (prin-ciple of justice). These principles define dutiesthat may be demanded of every one equally, andmay even be coerced. For this to be possible,these principles must be formulated in a wayacceptable to everyone or the majority, andconsequently acquire a legal form. On the otherhand, the principles of autonomy and benefi-cence are of a private nature and each personmust manage them according to his/her ownbeliefs or life ideals. The first two principlescorresponded to that referred to as the “minim-alist ethics” and the latter two to the “maximalistethics.”

2. Identify conflicts between values or principles.The duties related to the minimalist ethics aremore limited or restricted than those of the

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maximalist ethics, but they are generally moreexacting, consequently in a situation of conflictthey usually take priority over the obligationsof maximums. Moral conflicts often arise asa consequence of the conception of what ispublic and what is private. For example, artificialcontraception has been characterised as a publicduty of nonmaleficence, included as an offencein the Criminal Code, whereas these days it is aduty of private management (in accordance withthe principles of autonomy and beneficence).

II. Evaluate the likely consequences:

1. Evaluate the circumstances of a particular caseand the likely consequences of the decision. Thisevaluation can never be all-inclusive, however itshould be carried out very carefully. In ethics, asin law, circumstances may be aggravating, exten-uating or exempting. When there are exemptingcircumstances, the obligation is overridden bythe specific circumstance. The reason is alwaysthe same: because in these circumstances itappears that the indiscriminate application of theprinciple is incompatible with the respect dueto human beings. There are times, for example,when telling the truth would clearly be offensive.

2. Determine if an exception to the principles mayand should be made. The exception is justi-fied as long as we have reason to believe thatthe application of a norm or principle wouldundermine the dignity of a human being. In thecase of public duties that have become legal,exception may be granted by the judge or bythe law, legalising or decriminalising the rule incertain circumstances. This is what has happenedfor example with regard to abortion in Spanishlegislation and as regards euthanasia in Dutchlegislation. It is important to point out that theselegalisations do not define the moral rightness orwrongness of such acts; they just state that incertain circumstances these acts are consideredto be of private management and not, as waspreviously the case, of public management. Itshould also be remembered that the most diffi-cult part always falls to the person who wishes tomake the exception, as this person has the burdenof proof or the responsibility of proving that theexception is possible and necessary.

Experience has demonstrated that by following theabove procedure many moral conflicts can be resolved,or if the problems are not completely resolved at leastsituations may be clarified.

Finally, it should be remembered that the aim ofthis process is not to make decisions. It does not have

executive or decision-making properties, but consul-tative ones. Moral decisions cannot be easily trans-ferred. Over the wide range of privately managedduties it is the patient, the doctor responsible, thefamily member, or the health manager who has theright and obligation to make his/her own decisions.The deliberation rounds cannot exonerate them fromthis responsibility. What it can and tries to do is helpthem in this process, in the conviction that in this wayit contributes to improving the quality of healthcareand professional and user satisfaction with the healthsystem. Public managed duties, on the other hand, mayonly be demanded by others if they have become legalrules. The jury in some cases, the judge in others willdeliberate and pass sentence. In this case deliberationhas a decision-making character. In any event, deliber-ation must not be confused with decision-making. Oneperson or a group of persons different from those whohave to make the decision may deliberate. A significantexample of this are healthcare ethics committees.

One last comment is that, as has just been hinted,deliberation may be individual or collective. As Aris-totle says, “we enlist partners in deliberation on largeissues when we distrust our own ability to discern.”(Aristotle, 1995, p. 295). The same takes place inethics as in clinical medicine. The most complex casesare presented at a clinical round so that they can beanalysed by more than one professional. The samething happens at a Court of Justice when appeals areconsidered by more than one judge, as it is thought thatserious cases should not be judged by just one person.There is no reason why ethical deliberation should bedifferent from other kinds of deliberation. The healthprofessional carries out his own deliberation when hehas made decisions regarding a patient. The doctor-patient relationship is a deliberative process (Emanueland Emanuel, 1992, pp. 2221–2226). Healthcare ethicscommittees also deliberate (Couceiro, 1999, pp. 239–310 and 3290-334). Their function is very similarto that of clinical sessions: analysis of the complexproblems and help with the most difficult decisions.Clinical and ethical deliberation is the core of clinicalactivity.

Note

1. This paper is based on and adapted from: Gracia D.: (2001),‘La deliberación moral: El método de la ética clínica’, MedClin (Barc) 117, 18–23. This was the introductory chapterof a series of articles that were published under the title“Bioethics for clinicians” in the same journal during thesecond half of the year 2001 and January 2002. The authorwould like to thank the Foundation for Health Sciences forthe permission to use this previous paper in the present one.

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