How Legal Theory Can Save the Life of Healthcare Ethics

This book argues that legal theory provides a jumping-off point for the study of controversial topics related to the work of Practicing Healthcare Ethicists (PHEs). Healthcare ethics consultation has had a place in healthcare for many decades yet the nature of the work is not well understood by many of its critics as well as its defenders. PHEs have been described as compromised and ineffectual, politicised and undemocratic, and their promise to offer sound advice has been deemed irredeemably incoherent in the context of value pluralism. Legal theorists have long attended to the relationship between law and morality, and the supposed tension between democracy and the role of an expert judiciary. An appreciation that these debates are not unique to the practice of healthcare ethics can help PHEs to engage critics with a renewed confidence and some fresh approaches to perennial, and hitherto unproductive, arguments. This book will be of great interest to practicing healthcare ethicists, as well as those who rely upon their services (healthcare professionals and healthcare leaders, patients, and their families) as well as academics working in the broader field of bioethics. Preface 7 Acknowledgements 9 Introduction 10 Contents 16 Chapter 1: A Compromised and Ineffectual Field? 18 1.1 Professing to Be Professionals (What Is the Nature of the Work?) 18 1.2 Consultation Content and Method 21 1.3 Sophistry and the Status Quo 25 1.4 The Art (or Artifice) of Compromise 27 1.5 Research Ethics: Rules, Regulations, and Review 28 1.6 Institutional Interests and the Obligations of Ethicists 34 1.7 Conflict of Interest (COI) for Ethics Consultants: A Primer 37 Chapter 2: Conflicted Consultants: Surveying the Canadian Context 40 2.1 Outside Interference: Laundry Lists and the Efficacy of Efforts to Come Clean 43 2.2 The Case of the Committed Graduate Student: Interests Worth Worrying About? 46 2.3 COI, Reflexivity, and the Nature of Ethicists’ Interests 51 2.4 Stark’s Contrasts: Intrinsic COI and the Character of Professional Identity 54 2.5 Agency Relationships and Ethical Obligations 57 Chapter 3: Scrutinizing the Standing of Principles: On the Politics of Bioethics 60 3.1 Conflict of Interest or Political Interference? Bioethicists Eating Their Own 61 3.2 PHEs and Public (Health) Ethics: Building a Better Bioethics 63 3.3 Who Abides and Who Decides? Joan Tronto on Authority in Ethics 67 3.4 Public (Health) Ethics: Fostering Reflection and Playing the Long Game 69 3.5 Wicked Problems and Virtuous Solutions: Beyond Bioethics’ Boundaries? 72 3.6 Progressive Lenses: Illuminating Ethical Issues or Distorting Experience? 74 Chapter 4: Ethics as Interpretation: Lessons from Legal Theory 77 4.1 What Makes a Hard Case Hard? 79 4.2 Practising in the Penumbra: Variation and Values 81 4.3 The Core and the Penumbra: Settled Questions and Unsettling Ones 84 4.4 MAID in Canada: Making Sense of Our Legal and Ethical Obligations 87 4.5 Inside Traders or Honest Brokers? Examining the Terms of the PHE’s Relationships 94 4.6 Taking Sides or Occupying the Middle Ground? An Insider/Outsider Approach to the Practice of Healthcare Ethics Consultation 96 4.7 Integrity in Interpretation: The Right Answer(s) for Applied Ethicists? 98 4.8 Philosophizing in the Penumbra: Advising on Access to MAID 101 4.9 Illuminating the Ethical Penumbra: How Jurisprudence Can Help 105 4.10 Fruits of the Living Tree: What a Common Law Conception Offers Healthcare Ethics Consultation 106 4.11 Imagining McLachlin: A Hercules for Healthcare Ethics? 107 Chapter 5: Professionalizing PHEs: The Promise of a Practice Worth Wanting 111 5.1 Scofield’s Critique: Gathering Wool or Communicating Appropriate Concerns? 111 5.2 Hard Cases, Philosophizing, and the Practice of PHEs 112 5.3 Professionalization and Professionalization: Skepticism or Systemic Thinking? 112 5.4 Certification, Accreditation, and Public Protection: McLachlin Meets MAID 113 5.5 Closing Thoughts: Consultation in the Context of Crises 115 Bibliography 117 Index 128