On April 29th 2006 our own Dr. Brendan is being honored by the Bioethics Network of Ohio (BENO) is recognition for his role as a founding member and its first president. As part of this recognition ceremony, Dr. Minogue was asked to submit an essay for publication in BENO’s publication Bioquarterly. The full text of that essay is posted below:
BENO and the Modern Bioethics Movement
The nineteen-sixties were not only the decade of youthful revolution, but also the decade of bioethical revolution. While BENO was not present at the creation, it was nevertheless, a natural outcome of this new revolutionary approach to medicine, which now has become the new standard of care. Many factors contributed to this bioethical revolution. Generally speaking, it was an ongoing movement in which individual autonomy, under the banner of patients’ rights, as well as social considerations, were reluctantly admitted into the practice of medicine. More specifically, the health care system began receiving an enormous amount of economic support from private and governmental insurance programs, such as Medicare. These insurance programs demanded a voice in determining how the medical system treated the sick. In addition the early stages of the bioethical revolution were driven by technological transformation. Medical technology itself forced us into revolutionary change by creating new problems, which required us to think about our old assumptions regarding the practice of medicine. New technologies, such as Dialysis, produced skyrocketing medical inflation during the later decades of the sixties, and this inflation spawned our current concerns with rationing. Cardio Pulmonary Resuscitation entered the practice of medicine at about the same time, and the ongoing challenges associated with end of life care became an everyday topic of conversation. Transplantation and the associated challenges to redefine “death” were also gaining the public’s attention and challenging some of our most basic ethical concepts. Finally the development of extensive new tools associated with managing neonates entered our shared consciousness and challenged our deepest values regarding our children.
But while economics and technology surely made us aware of our new bioethical problems, they did not provide any new understanding regarding the ethical management of these emerging medical technologies. Indeed many health care professionals felt a little bit like Dorothy in the Wizard of Oz, who exclaimed to her dog “Toto I don’t think that we are in Kansas anymore.” To come to grips with these ethical problems, our society turned to the humanities…. the great wellspring of free and open conversation regarding ethical values. The humanities had taught us that we need not have all the answers to our challenges in order to have a thoughtful, factual, and caring conversation regarding our alternatives. Practically speaking, this meant that the health care system needed to admit philosophers, theologians, and writers, as well as social scientists into the discussion of how best to treat patients.
At first many medical professionals considered this admission of the humanities and social sciences into the practice of medicine a “messy business.” Health care professionals want answers not just questions. As a philosopher, I remember feeling a little uncomfortable with this demand for answers. I was much more comfortable with exploring questions rather than providing detailed answers. However, if humanities educators were going to be bioethical educators, then we had to respond to this demand for something more than humanistic exploration. But how were we supposed to meet this demand for positive, content rich answers, which our new medical colleagues were demanding?
For many of us, who were new to bioethical education, the answer involved turning to that humanities discipline, which most resembles concrete shared values…the law. This is worth repeating. The law is part of the humanities. The law was and never will be a set of facts, though factual considerations are very relevant to it. It is more accurate to view the law as our shared response to problematic facts. Furthermore, the law is more than a set of mere opinions. In addition, the law is neither a purely private nor a purely public matter. Furthermore, the law was no stranger to the “messy business,” associated with making tough decisions even in the presence of ambiguity and opposing visions of the good life. Finally, every health care professional spends their working days dealing with the subjective, private patient, who has an objective, public disease. Health care professionals know what it means to treat the patient….not just the disease. This notion that we humanists could use the discussion of relevant legal decisions to entice health care professionals into the discussion of fundamental values and rights was the cornerstone for building a revised body of knowledge called Bioethics.
This use of the law enabled bioethics education to become clarified by the nineteen eighties. We bioethics educators were not going to be pure philosophers or pure theologians or pure historians or literary theorists. We were going to accept a set of abstract values, which were beginning to emerge within a developing legal consensus. However, bioethics educators were not going to leave their concern with exploring values completely behind. Bioethics was going to continue to explore the ways in which public values, expressed within the emerging legal consensus, needed to be continually revised in the light of medical practice. In short because medicine always required more than our legal abstractions could provide, bioethics began to concentrate on hospital based ethics policies and guidelines, which more concretely directed the use of medical technology. These policies and guidelines were not laws. They did not have the coercive force of law. But these hospital policies and guidelines were not mere private, ethical opinions. While hospital ethics policies had no binding legal force, they did rest on experience, successful practice and ethical reflection. They emerged from the application of new technologies but they were also thoughtfully responsive to the challenges present within the management of these new medical technologies. In short, hospital ethics policies were viewed as tools aimed at bringing about respect for the rights of persons, as well as good medical consequences. Most importantly, they were the subject of constant review by multi-disciplinary professionals. This was the soil in which BENO grew, and it is this same soil which continues to fertilize our organization.
But it was not just bioethical educators who needed to change, if we were to effectively manage the new bioethical problems. Traditional physicians, nurses and health care administrators were also going to change as well. We were all going to try something slightly new! We were going to take seriously the idea that patients not only had kidneys and livers, but they also had rights and values, which also needed to be understood. Biology and ethics were essential, if we were to become expert care givers. In short, while understanding bodily organs would continue as the primary focus of the health care professional, appreciating the rights and values of the patient would grow in importance within this new, technologically altered practice of medicine.
Thus by 1990, many of us had slowly started to come to a new self-understanding. We were Bioethicists. Out of this new self-awareness, BENO took root here in Ohio. Following a bioethics meeting at Youngstown State University, a number of us including Martin Smith, Jackie Slumka of the Cleveland Clinic, and Jim Reagan of St Elizabeth’s Hospital began meeting at the Cleveland Clinic and other medical and educational facilities around the state. Our goal was to build an organization which would continue the conversation about improving bioethical education and policy development. But in addition, we were also thinking broadly about those procedures which we should follow when, in conjunction with physicians, we actually began to manage bioethics cases on the floor of the hospital or other health care facility.
Organizations like BENO were developing across the country and all of these organizations were taking root because there was a felt need to put flesh on the bioethical, legal skeleton. For example, it was easy to admit that we should respect a patient’s right to say “no” to a prolonged technological death, but it was quite another to ethically manage an Intensive Care Unit. This latter task involved asking a host of new questions such as: what do we do when a patient or family demands technological services, which only produce “prolonged death.” In short, the abstract nature of rights makes them very easy to misuse. Rights can indeed be used to support improved quality of care but rights can also function as a pseudo substitute for quality medical care. At the time, it was quite common to spend a king’s ransom in the ICU with no clear prospect of accomplishing any medical value other than profoundly debilitated, biological existence. Furthermore, while we had law to give us some general guidelines, we also had concrete judges telling us that they did not want to be called to the bedside every time we faced a problem.
To replace this ‘ad hoc” system of appealing to judges to make the difficult decisions, hospitals were suddenly required to develop ethics committees, which could develop ethics policies, which would effectively manage the difficult cases, which our problematic technologies had precipitated. Hospitals were also required to develop educational programs aimed at preparing physicians to apply these new ethics policies. Finally, hospitals were obligated to set up procedures, which represented a reasonable approach to managing these new bioethics cases. As we have said, the common legal consensus was abstract. To apply it required concrete decisions. While the courts did not require hospitals to find the right answers, it did obligate hospitals to show that doctors were not being arbitrary or making their own decisions based on their private ethical values. Hospitals were being obligated to demonstrate that their practitioners were making decisions in the light of the common legal consensus. Legislatures and jurists had given us an abstract, common consensus regarding the management of bioethical cases, but when it came to particular persons, in particular crisis settings, hospitals were obligated to follow reasonable policies and procedures which were aimed at providing a thoughtful and respectful approach to the patient.
These new obligations, which were being imposed on health care institutions, gave BENO its purpose. BENO was going to be the professional organization, which helped both individuals and organizations practice bioethics in Ohio. However, BENO took a somewhat creative approach to accomplish this goal. We were going to rely on ourselves. We were going to form a network of our fellow Bioethics practitioners here in Ohio with the aim of sharing our best bioethical practices. We concentrated on identifying professionals, throughout the state, who worked within health care institutions, and who were both interested and responsible for bioethics policy development and education.
Institutions were reluctant at first to spend time and money on issues related to ethics. Ethics was not a revenue source. The ethics committee was not a dialysis unit, which generated income. If anything, it was a revenue drain. But there was no doubt that institutions were going to face ethical challenges. Facing these challenges required that hospitals demonstrate that they were not flying by the seat of their pants. Institutions needed a multi-disciplinary, “in house” mechanism aimed at applying a “best practices” approach to the challenges of bioethics. These practices would be broadly consistent with good medicine, as well as the national legal consensus, which was slowly taking shape.
To accomplish its task, BENO needed to attract practicing health care experts into our membership, and we wanted them to enter into a feedback relationship with all of our members. We wanted them to educate us, and we wanted to offer them a network of fellow professionals, who were developing the required best practices. We wanted to be Ohio’s resource for best ethical practices and education. When something worked, BENO wanted to know about it. When something did not work, we were especially concerned to learn about it, so that our members did not repeat it. This remains our ongoing task.
FUTURE CHALLENGING OPPORTUNITIES
Allow me to close with a few remarks regarding what, I think, lies ahead for us. The first challenging opportunity we face involves new medical technology. While medical technology continues to alter the face of medicine, it has not done so without some unexpectedly negative consequences. Indeed it seems as if technology’s beneficial opportunities always come with some disruptive challenges. Because this pattern of technological innovation is likely to continue, BENO should be prepared, not only to understand these new technological developments, but also to separate the wheat (the beneficial opportunities) from the chaff (the unexpected harmful consequences). BENO will surely need to keep abreast of emerging medical technologies. But BENO is more than a collection of technologically competent health care professionals. Because our roots remain in the humanities, we sometimes need to call “time out” so that all of us can think about how to manage the unexpected consequences and implications of new medical technology. The ethics of human subject research has taught us that medical technological development can harm patients, even if it is well intentioned. We therefore need to find ways to validate our technological applications before we universally introduce them into hospitals across the state. If you wish to call this medicine’s “guilty until proven innocent” attitude, then so be it. But whatever you name this medical attitude, we need to incorporate a critical approach to new medical technologies, which impact the lives of patients.
The second challenging opportunity, which we face, has been brought on by the successes which, American medicine has made over the past decade on the issue of cost containment. Medical inflation is being reduced across the medical economy. This was needed. During the first stages of the war against medical inflation, cost containment was accomplished with relatively benign strategies such as reducing the over-supply of health care services. This accommodation of supply to need seemed necessary as well as very practical. In addition, public and private health insurance companies have driven medicine in the direction of cost conscious case management and the preferred use of generic medications. These forces, with some exceptions, have seemed beneficial and consistent with patient interests and patient rights. Many of us accept the idea that there is no fundamental inconsistency between the health care professional having a duty to keep costs under control, as well as a fiduciary responsibility to the patient’s rights and medical welfare. However, even if we accept this broad consistency, we need to be aware of how easy it is to cross the line and sacrifice the patient’s rights and/or medical interests for the sake of cost containment. Once again, BENO cannot predict what cost containment tools will be introduced to reduce medical inflation. Many such strategies will work in the sense that they will be effective and consistent with our fiduciary commitment to the patient. But it is my hope that BENO will apply a critical attitude toward anti-inflation practices, which sacrifice important medical and human values for the sake of cost containment.
Brendan Minogue
Professor emeritus Philosophy and Religious Studies
Youngstown State University
February 2016
