The Professional-Client Relationship

The Professional-Client Relationship
Michael D. Bayles
From Professional Ethics (Belmont. CA: Wadsworth Publishing Co.. 1981), pp. 60-70.

...Many analyses have been offered of the professional-client relationship. Some analyses are empirical; they describe the relationship as it normally exists. That is not the purpose of this section. Rather, the purpose here is to develop an ethical model that should govern the professional-client relationship. However, ethical models and norms often assume certain facts. For example, an ethical model of the appropriate relationship between parent and child makes certain assumptions about a child's abilities. A model of full equality would not work for very young children simply because they lack the physical and mental abilities to engage in such a relationship. Thus, although an ethical model of the professional-client relationship is not simply to describe it, a model can be inappropriate because it makes false empirical assumptions about one or the other parties.

The impulse of philosophy is to generalize. The present aim is to develop general statements of obligation that can require different conduct depending on the situation. The obligations to keep promises and make reparations for past injustice remain constant although the required conduct varies with the situation. There is no a priori reason why general obligations of professionals to clients cannot be established even though their application to particular cases requires different conduct in different situations. This does not imply ethical relativism.

To develop an ethical model that has the broadest scope, the model should not be based on unusual situations, such as a defendant charged with a capital crime or an unconscious patient. Unusual situations are so simply because they lack features of the usual or have additional features. An analysis based on unusual situations is therefore likely to distort normal situations. Professional ethics should be based on the usual sort of contact average clients have with professionals. Individual citizens are most likely to see lawyers in connection with real estate transactions, divorces, making wills, and personal injury negligence cases. Lawyers also spend much time drafting commercial contracts and advising about business matters. The average client will probably have a physician's attendance during a fatal illness or injury, but most physician-patient contacts are for more mundane matters such as a bacterial infection or a broken bone. Only gross neglect by the patient or physician-for example, the failure of a patient to take any medicine at all or of a physician to ask whether the patient is allergic to penicillin before prescribing it-is apt to turn these matters into seriously life-threatening illnesses or injuries. Engineers are apt to be consulted by companies or governments that want a project designed. Similarly, certified public ac- counts are most often hired to audit the books of a corporation. Both accountants and architects also deal with individuals for such purposes as income tax preparation and designing houses.

The central issue in the professional-client relationship is the allocation of responsibility and authority in decision making-who makes what decisions. The ethical models are in effect models of different distributions of authority and responsibility in decision making. One may view the professional-client relationship as one in which the client has most authority and responsibility in decision making, the professional being his employee; one in which the professional and client are equals, either dealing at arm's length or at a more personal level; or as one in which the professional, in different degrees, has the primary role. Each of these conceptions has been suggested by some authors as the appropriate ethical model of the relationship. Each has some commonsense support.

AGENCY
According to this view, the client has most of the authority and responsibility for decisions; the professional is an expert acting at the direction of the client.1 The client hires a professional to protect or act for some interest; the professional provides services to achieve the client's goal-purchase of a house, removal of a gallbladder, design of a building. According to this conception, not only does the professional act for or in behalf of the client, but also acts under the direction of the client as in bureaucratic employer-employee relation- ships. This conception is especially plausible for lawyers. In filing a complaint or arguing for a client, a lawyer acts for and in behalf of the client. According to some people, a lawyer is merely a "mouthpiece" or "hired gun." It is not a plausible view of accountants performing public audits, for they are supposed to provide an independent review and statement of the clients' financial conditions.

In some contexts, professionals are prone to adopt the agency view of the professional-client relationship. Professionals are sometimes "identified" with their clients and charged with the client's alleged moral failings. Lawyers offer the defense that in representing clients, they do not thereby ascribe to or support clients' goals or aims.2 They are merely employees hired to perform a specific task. If the projects are bad or immoral, the fault lies with the clients, or perhaps with the legal system for permitting them.

The agency model most clearly exemplifies what has been called the "ideology of advocacy." This ideology has two principles of conduct: (1) that the lawyer is neutral or detached from the client's purposes, and (2) that the lawyer is an aggressive partisan of the client working to advance the client's ends.3 This ideology is readily applicable to physicians, architects, and engineers. A physician, for example, should not evaluate the moral worth of patients but only work to advance their health. The second element of the ideology does not apply to accountants performing audits, for they are to present independent statements of clients' financial conditions. It applies in other accounting activities though. For example, an accountant preparing a client's income tax statement should try to take every plausible deduction on behalf of the client.

Some aspects of this ideology appear inescapable in professional ethics. If professionals accepted only clients whose purposes they approved of and did not consider clients' interests any more than those of others, many persons with unusual purposes (such as wanting an architectural style of a building that is completely inconsistent with those nearby) might be unable to obtain professional services. And even if they did, the services might not be worth much, as no special consideration would be paid to their interests.4 The chief problem with the ideology of advocacy, where it does be- come an ideology, is that sometimes devotion to a client's interests is thought to justify any lawful action advancing the client's ends, no matter how detrimental the effect on others.

The agency view of the professional-client relationship is unduly narrow. A number of considerations indicate limits to a professional's proper devotion to a client's interests, and consequently to a client's authority in decision making.

1. ...Professionals have obligations to third persons that limit the extent to which they may act in behalf of client interests.

2. The agency view arises most often in the context of defending professionals, especially lawyers, from attribution of client sins. This focus is too narrow to sustain a general account of the professional-client relationship. It best pertains to an adversarial context in which two opposing parties confront one another. In counseling, a lawyer's advice "need not be confined to purely legal considerations. ...It is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally pennissible."5

3. Professionals emphasize their independence of judgment. Unlike a soldier who is not expected to think for himself but to do things the army's way, professionals should exercise their training and skills to make objective judgments. The agency view ignores this feature.

4. Except in cases of dire need-medical emergencies, persons charged with crimes-professionals may accept or reject specific clients. With a few restrictions, they may also stop the relationship. Consequently, the agency view is too strong. Professionals must also be ethically free and responsible persons. For their own freedom and the protection of others, they should not abdicate authority and responsibility in decision making.

The strongest possible claim of supremacy has been suggested, namely, that, like the common law doctrine of the merging of the identity of the husband and wife, the attorney and client are similarly merged in the identity of the client.6 The proposal was made in the context of attempts by professional has the special knowledge produced by long training, knowledge a client could not have without comparable training. Second, a client is concerned about some basic value-personal health, legal status, or financial status-whereas a professional is not as concerned about the subject matter of their relationship. The client usually has more at stake. Third, a professional often has a freedom to enter the relationship that a client lacks. A professional is often able to obtain other clients more easily than a client can obtain another professional. Especially if a potential client has an acute illness or has just been charged with a crime, he or she is not free to shop around for another professional. From this point of view, the bargaining situation is more like that between an individual and a public utility.

These considerations are not as important for the usual situation in architecture, accounting, and engineering. The clients of these professionals are often better informed about the subject matter of the transaction than are clients of lawyers and physicians. For example, businesses and corporations have accountants working for them who can give advice about auditors. Often firms hiring consulting engineers have had previous experience working with engineers in that field. Governments, even local ones, frequently have one or two engineers working for them who can advise and help. Moreover, they are freer than the professional to conclude an arrangement with another firm. Thus, in these situations the factual basis for the contract model is most nearly present. However, the consulting engineer or architect has some special knowledge and ability the client lacks, or else a professional would probably not be hired, so the contract model's empirical assumptions do not quite hold even in these cases.

FRIENDSHIP
Instead of viewing the relationship as one between two free and equal persons dealing at arm's length, some authors suggest that the relationship is more personal. One does not relate to a professional as one does to a grocer or public utility. The personal element is most closely captured by viewing the relationship as one of pals or friends. According to this view, professional and client have a close relationship of mutual trust and cooperation; they are involved in a mutual venture, a partnership.

Perhaps the most sophisticated version of this conception is that proposed by Charles Fried.10 He is primarily concerned with the legal and medical professions. Fried seeks to justify professionals devoting special attention and care to clients and sometimes seeking ends and using means that they would not seek or use for themselves. Friends are permitted, even expected, to take each others' interests seriously and to give them more weight than they do those of other persons. Fried suggests that the attorney-client relationship is analogous to a one-way limited friendship in which the lawyer helps the client secure legal rights. The lawyer helps the client assert his autonomy or freedom within the bounds society permits. Others have suggested that the physician-patient relationship should similarly be viewed as a cooperative effort of friends or pals to deal with the patient's illness or injury.

The many dissimilarities between friendship and the professional-client relationship, however, destroy the analogy. First, as Fried recognizes, the professional-client relationship is chiefly in one direction; the professional has a concern for the client's interests but not vice versa. Second, friendship is usually between equals. Even in friendships between employer and employee, the employer's superiority in the office is changed to a position of equality in the bar for a drink. As the above discussion of the contract model indicates, professionals and clients are not equals. Third, the affective commitment of friendship is usually lacking .11 Professionals accept clients for a fee, not out of concern for individuals. Thus, one commentator concludes that "Fried has described the classical notion, not of friendship, but of prostitution."12 As the factual assumptions of this model are in- correct and the analogy supporting it is weak, its ethical implications are unfounded.

The friendship analogy is not needed to justify a professional paying special attention to a client's interests. The role of a professional is to provide services to clients, and the acceptance of a client is sufficient to justify the special attention. A barber who accepts a customer pays special attention to a customer's hair over that of others who need a haircut more. One need not postulate the barber as friend to justify this attention. It is presupposed by any system of services for a fee. would not seek or use for themselves. Friends are permitted, even expected, to take each others' interests seriously and to give them more weight than they do those of other persons. Fried suggests that the attorney-client relationship is analogous to a one-way limited friendship in which the lawyer helps the client secure legal rights. The lawyer helps the client assert his autonomy or freedom within the bounds society permits. Others have suggested that the physician-patient relationship should similarly be viewed as a cooperative effort of friends or pals to deal with the patient's illness or injury.

PATERNALISM
Once one abandons models that assume the professional and client are equal and accepts that the professional is to some extent in a superior position to the client, one faces the problem of the proper extent of professional authority and responsibility in decision making. Parents have knowledge and experience that children lack, and it is often ethically appropriate for them to exercise their judgment on behalf of their children. Similarly, as a professional has knowledge and experience a client lacks and is hired to further the client's interests, perhaps the relationship should be viewed as one of paternalism.

Paternalism is a difficult concept to analyze. A person's conduct is paternalistic to the extent his or her reasons are to do something to or in behalf of another person for that person's well-being. What is done can be any of a number of things, from removing an appendix to preventing the person from taking drugs. One can also have a paternalistic reason for acting in behalf of a person-for ex- ample, filing a counterclaim or asserting a legal defense. The key element of paternalism derives from the agent, X, acting regardless of the person's, Y's, completely voluntary and informed consent. X's reason is that he or she judges the action to be for Y's well-being regardless of Y's consent to it. y may be incapable of consent, as when a physician treats an unconscious patient in an emergency, or y may never have been asked, or may have refused to consent to the act.

Conduct can be paternalistic even when y in fact consents.13 For example, if X is prepared to do something to y regardless of Y's consent, then X's reason is paternalistic even if y does consent. , Parents frequently manipulate a child into assenting I' to actions, although they were prepared to do them without the child's assent. The key element is that X would have done the action, if he could, even if y had not consented. Such claims are difficult to establish, but this difficulty is a practical problem and does not affect the conceptual matter. In manufacturing consent, information can be withheld, false information provided, or more emphasis placed on some facts than others. Professionals sometimes manufacture consent when action cannot legally be taken without client consent, such as accepting a settlement or performing an operation. The concept of doing something to or in behalf of someone includes failure to do something. Suppose y requests X to do something for him, but X refuses because she thinks it would be detrimental to Y's well-being; for example, a physician refuses to prescribe a tranquilizer for a patient. This also counts as doing something to or in behalf of a person without his consent; y does not consent to the tranquilizers being withheld.

A voluminous literature exists concerning the justification of paternalism. The brief discussion here will outline only the major arguments. Paternalism requires justification because it involves doing something to or in behalf of another person regardless of that person's consent. It thus denies people the freedom to make choices affecting their lives. They lack the freedom of self-determination. ...The loss of control over their own lives, especially to professionals, is one reason for people's concern about professional ethics. Thus, paternalism is of central importance in professional ethics.

Three arguments are often offered to justify paternalism.

1. The agent has superior knowledge as to what is in a person's best interest. Because the agent knows better than the person what is best, the agent is justified in acting to avoid significant harm to, or to procure a significant benefit for, the person. This argument is perhaps the central one in favor of paternalism by professionals. As noted before, a professional possesses a relevant knowledge the client lacks, so he or she is better able to perceive the advantages and disadvantages of alternative actions. Consequently, the professional rather than the client should have primary authority and responsibility for decisions.

2. The client is incapable of giving a fully free and informed consent. By "fully free" is meant without duress, psychological compulsion, or other emotional or psychological disturbance. By "informed" is meant with appreciation of the consequences of a course of conduct and its alternatives. If people cannot give such consent, then their decisions will not adequately reflect their reasonable desires and will not be expressions of their "true selves." This argument, which in some respects is a subcase of the previous one, is also popular in the professions, especially medicine. It is often claimed that people who are ill have a strong feeling of dependency, are worried by their illness, and are in a weakened state, and so lack their usual mental command. A somewhat similar argument can be made about lawyers' clients. If charged with a criminal offense, a person is fearful and disturbed. Even in civil suits, a client's emotions might be aroused, preventing an objective view of the situation.

3. A person will later come to agree that the decision was correct. Although the person does not now consent, he will later .For example, an unconscious accident victim with a broken limb will agree that a physician was correct to set the bone. Parents often require their children to do things, such as take music lessons, on the ground that later the children will be glad they did-"You'll thank me later!" An engineer might see a way to improve an agreed-upon rough design to better serve a client's needs, although it involves a significant alteration from the rough design. She might make the change in the belief that the client will agree when he sees the completed design.

To decide whether these justifications support viewing the professional-client relationship as paternalistic, it is useful to consider when reasonable people would allow others to make decisions for them. First, a person might not wish to bother making decisions because the differences involved are trivial. For example, an executive authorizes a secretary to order any needed office supplies, be- cause the differences between brands of paper clips and so forth are not important. Second, the decisions might require knowledge or expertise a per- son does not possess. For example, an automobile mechanic knows whether a car's oil filter needs changing. One goes to a mechanic for knowledge and service. Third, a person might allow others to make judgments if he or she is or will be mentally incompetent. Some people voluntarily enter mental hospitals. The first of these reasons does not directly relate to the arguments for paternalism, but the second and third do relate to the first two arguments for paternalism. Reasonable persons would allow others to make decisions for them when they lack the capacity to make reasonable judgments. However, most clients do not have sufficiently impaired judgment to reasonably allow others to make important decisions for them. This incapacity argument has little or no plausibility for the common clients of architects, engineers, and accountants. Business and corporate clients of lawyers are unlikely to have significantly impaired judgment, even if they are biased. Moreover, even with individuals, the view is not plausible for the common legal and medical cases. A person who wants to purchase a house or make a will, or who has the flu or an infection, is rarely so distraught as to be unable to make reasonable decisions. Consequently, the argument from incapacity does not support adopting a paternalistic conception of the professional-client relationship for most cases, although it supports using that conception in special cases. The first argument for paternalism, that from superior knowledge, fits with reasonable persons allowing others to make decisions when they lack knowledge. Moreover, clients go to professionals for their superior knowledge and skills; such knowledge and skill is a defining feature of a profession. However , many decisions require balancing legal or health concerns against other client interests. As many authors have noted, crucial professional decisions involve value choices.14 They are not simple choices of technical means to ends, and even choices of means have a value component. Professionals have not had training in value choices. Even if they had, they might not know a client's value scheme sufficiently to determine what is best for him when everything is considered. An attorney might advise a client that he or she need not agree to such large alimony or child support payments, but the client might decide that for personal relations with the former spouse or the welfare of the children, the larger payments are best. Similarly, a physician can advise bed rest, but because of business interests a client can decide her overall interests are best promoted by continuing to work on certain matters. The client might especially need the income or be on the verge of completing a business deal that will earn a promotion. Physicians sometimes fail to realize that a patient's other concerns, even a vacation trip with the family, can precede health. They write and speak of the problem of patient noncompliance just as parents speak of noncompliance by children. Yet, one does not have everything when one has health. Similarly, a client might want an engineering or architectural design to use one type of construction rather than another because its subsidiary supplies such materials. Although a professional and client are not equals, sufficient client competence exists to undermine the paternalistic model as appropriate for their usual relationship. Clients can exercise judgment over many aspects of professional services. If they lack information to make decisions, professionals can provide it. Sometimes professionals argue that clients can never have the information they have. This is true, but not directly to the point. Much of the information professionals have is irrelevant to decisions that significantly affect client values. The precise name of a disease and its manner of action are not relevant to deciding between two alternative drug therapies, but the fact that one drug reduces alertness is. Similarly, clients of engineers do not need to know the full weight a structure will bear, only that it is more than sufficient for all anticipated stress. To deny clients authority and responsibility by adopting the paternalistic model is to deny them the freedom to direct their own lives. Clients are not capable of determining the precise nature of their problem, or of knowing the alternative courses of action and predicting their consequences or carrying them out on their own. They need and want the technical expertise of a professional to do so. However, they are capable of making reasonable choices among options on the basis of their total values. They need professionals' information in order to make wise choices to accomplish their purposes. Finally, when the professional-client relation- ship is conducted on the paternalistic model, client outcomes are not as good as when the client has a more active role. Douglas E. Rosenthal studied settlement awards in personal injury cases.15 The actual awards received were compared to an expert panel's judgments of the worth of the claims. The less the client participated in the case by not ex- pressing wants or seeking information from the lawyers, and so on, the more the awards fell short of the panel's estimates of the worth of claims. Not only does the paternalistic model sacrifice client freedom and autonomy, but as a result client values and interests are also often sacrificed.

FIDUCIARY
As a general characterization of what the professional-client relationship should be, one needs a concept in which the professional's superior knowledge is recognized, but the client retains a significant authority and responsibility in decision making. The law uses such a conception to characterize most professional-client relationships, namely, that of a fiduciary .In a fiduciary relationship, both parties are responsible and their judgments given consideration. Because one party is in a more advantageous position, he or she has special obligations to the other. The weaker party depends upon the stronger in ways in which the other does not and so must trust the stronger party.

In the fiduciary model, a client has more authority and responsibility in decision making than in the paternalistic model. A client's consent and judgment are required and he participates in the decision-making process, but the client depends on the professional for much of the information upon which he gives or withholds his consent. The term consents (the client consents) rather than decides (the client decides) indicates that it is the professional's role to propose courses of action. It is not the conception of two people contributing equally to the formulation of plans, whether or not dealing at arm's length. Rather, the professional supplies the ideas and information and the client agrees or not. For the process to work, the client must trust the professional to accurately analyze the problem, canvass the feasible alternatives, know as well as one can their likely consequences, fully convey this information to the client, perhaps make a recommendation, and work honestly and loyally for the client to effectuate the chosen alternatives. In short, the client must rely on the professional to use his or her knowledge and ability in the client's interests. Because the client cannot check most of the work of the professional or the information supplied, the professional has special obligations to the client to ensure that the trust and reliance are justified.

This is not to suggest that the professional simply presents an overall recommendation for a client's acceptance or rejection. Rather, a client's interests can be affected by various aspects of a professional's work, so the client should be consulted at various times. The extent of appropriate client participation and decision making can be determined by advertence to the reasons for allowing others to make decisions for one. Professionals do not have expertise in a client's values or in making value choices. Their superior knowledge and expertise do not qualify them to make value choices significantly affecting a client's life plans or style. However, they do have knowledge of technical matters. A patient will certainly let a physician determine the dosage of medicines. A client can reasonably allow an engineer to determine the general specifications of materials for a job. A lawyer may decide whether to stipulate facts, object to testimony, or agree to a postponement.16 Clients allow professionals to make these judgments, be- cause the effects on their values are small and they do not wish to be bothered. In short, client consent and involvement are not necessary when (1) the matter is chiefly a technical one or (2) the value effect is not significant.

The appropriate ethical conception of the professional-client relationship is one that allows clients as much freedom to determine how their life is affected as is reasonably warranted on the basis of their ability to make decisions. In most dealings of business and corporate clients with accountants, architects, engineers, and lawyers, the relationship is close to a contract between equals. As clients have less knowledge about the subject matter for which the professional is engaged, the special obligations of the professional in the fiduciary model become more significant. The professional must assume more responsibility for formulating plans, presenting their advantages and disadvantages, and making recommendations. Because of the increased reliance on the professional, he or she must take special care to be worthy of client trust. Thus, although the fiduciary model is appropriate throughout the range of competent clients and services, the less a client's knowledge and capacity to understand, the greater the profession- al's responsibilities to the client.

Finally, some clients are not competent to make decisions. In this case, the paternalistic model becomes appropriate. These cases of an incompetent client will almost always be restricted to members of the legal and health professions. Even then it does not follow that the professional should make the decisions. If a client is incompetent, a legal guardian should be appointed to make decisions. When this is done, the professional has a fiduciary relationship to the guardian. Consequently, the appropriate occasions for professionals to adopt a paternalistic role are restricted to those in which a client is incompetent and a guardian has not yet been appointed. ...

NOTES
1. See Robert M. Veatch, "Models for Ethical Medicine in a Revolutionary Age." Hastings Center Report 2:3 (June 1972): 5-7, p. 5. Veatch calls this the engineering model of the physician, but this assumes it is appropriate for engineers.

2. See American Bar Association (ABA) Commission on Evaluation of Professional Standards, Model Rules of Professional Conduct: Proposed Final Draft (Chicago: American Bar Association, 30 May 1981), 1.2(b).

3. See William A. Simon, "The Ideology of Advocacy: Procedural Justice in Professional Ethics", 1978 Wisconsin Law Review: 29-144, p. 36.

4. Simon's [op. cit.] proposed alternative to the ideology of advocacy suffers these defects to some extent. He does not allow for professional roles. Thus, all professional obligations are at best specifications of ordinary norms. "The foundation principle of non-professional advocacy is that problems of advocacy be treated as a matter of personal ethics. ...Personal ethics apply to people merely by virtue of the fact that they are human individuals. The obligations involved may depend on particular circumstances or personalities, but they do not follow from social role or station." Ibid., p. 131.

5. ABA, Code of Professional Responsibility and Code of Judicial Conduct (Chicago: ABA, 1979), EC [Ethical Consideration] 7-8; see also ABA Commission, Proposed Model Rules, op. cit., 2.1 and comment.

6. Roger M. Grace, "Invading the Privacy of the Attorney-Client Relationship." Case and Comment 81 (July-August 1976): 46-49, p. 47.

7. ABA, Code of Professional Responsibility, DR [Disciplinary Rule] 4-101(C)(3); ABA Commission, Pro- posed Model Rules 1.6(b).

8. Veatch, op. cit., p. 7. 9. See, for example, Roger D. Masters, "Is Contract an Adequate Basis for Medical Ethics?" Hastings Center Report 5:6 (December 1975): 24-28, p. 5; William F. May, "Code, Covenant, Contract, or Philanthropy?" Hastings Center Report 5:6 (December 1975): 29-38, p. 35 H. Tristram Englehardt, Jr. "Rights and Responsibilities of Patients and Physicians," in Medical Treatment of the Dying: Moral Issues, ed. Michael D. Bayles and Dallas M. High (Cam- bridge, MA: G. K. Hall and Schenkman, 1978), pp. 16- 17; Richard Wasserstrom, "Lawyers as Professionals: Some Moral Issues," in 1977 Conference on Teaching Moral Responsibility: Pre-Conference Materials, ed. Stuart C. Goldberg (Detroit: University of Detroit Law School, 1977), pp. 122-22.

10. Charles Fried, "The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation," in Gold- berg, op. cit., pp. 129-58; and Fried, Right and Wrong (Cambridge, MA: Harvard University Press, 1978) chap. 7; see also Veatch, op. cit., p. 7.

11. Edward A. Dauer and Arthur Allen Leff, "The Lawyer as Friend," in Goldberg, op. cit., p. 164.

12. Simon, op. cit., p. 108.

13. Cf. Joseph S. Ellin, "Comments on 'Paternalism in Health Care,' " in Contemporary Issues in Biomedical Ethics. ed. John w. Davis, Barry Hoffmaster, and Sarah Shorten (Clifton, NJ: Humana Press, 1978), pp. 245-46.

14. See, for example, Glenn C. Graber, "On Paternalism and Health Care," in Davis et al., eds., op. cit., p. 239; Allen E. Buchanan, "Medical Paternalism," Philosophy and Public Affairs 7:4 (1978): 370-90, p. 381; and Alan H. Goldman, The Moral Foundations of Professional Ethics (Totowa, NJ: Rowman and Little- field, 1980), pp. 179-86.

15. Douglas E. Rosenthal, Lawyer and Client: Who's in Charge? (New York: Russell Sage Foundation, 1974), chap.2.

16. See ABA, Code of Professional Responsibility, op. cit., EC7-7; but see ABA Commission, Proposed Model Rules, op. cit., 1.2(a), 1.4.

Lying and Lies to the Sick and Dying

Lying and Lies to the Sick and Dying
By Sissela Bok
[From Lying: Moral Choice in Public and Private Life (New York' Pantheon. 1978) -- selections from chapters I, 2, 6. 14. and 15]

TRUTH AND TRUTHFULNESS
..."Truth"- no concept intimidates and yet draws thinkers so powerfully. From the beginnings of human speculation about the world, the questions of what truth is and whether we can attain it have loomed large. Every philosopher has had to grapple with them. Every religion seeks to answer them. ...

In all such speculation, there is great risk of a conceptual muddle, of not seeing the crucial differences between two domains: the moral domain of intended truthfulness and deception, and the much vaster domain of truth and falsity in general. The moral question of whether you are lying or not is not settled by establishing the truth or falsity of what you say. In order to settle this question, we must know whether you intend your statement to mislead. ...

Any number of appearances and words can mislead us; but only a fraction of them are intended to do so. A mirage may deceive us, through no one's fault. Our eyes deceive us all the time. We are beset by self-delusion and bias of every kind. Yet we often know when we mean to be honest or dishonest. Whatever the essence of truth and falsity, and whatever the sources of error in our lives, one such source is surely the human agent, receiving and giving out information, intentionally deflecting, withholding, even distorting it at times. ...

We must single out, therefore, from the countless ways in which we blunder misinformed through life, that which is done with the intention to mislead; and from the countless partial stabs at truth, those which are intended to be truthful. Only if this distinction is clear will it be possible to ask the moral question with rigor. And it is to this question alone-the intentional manipulation of in- formation-that the court addresses itself in its request for "the truth, the whole truth, and nothing but the truth."

DEFINING INTENTIONAL DECEPTION AND LYING
When we undertake to deceive others intentionally, we communicate messages meant to mislead them, meant to make them believe what we ourselves do not believe. We can do so through gesture, through disguise, by means of action or inaction, even through silence. Which of these innumerable deceptive messages are also lies? I shall define as a lie any intentionally deceptive message which is stated. Such statements are most often made verbally or in writing, but can of course also be conveyed via smoke signals, Morse code, sign language, and the like. Deception, then, is the larger category , and lying forms part of it. ...

LYING AND CHOICE
Deceit and violence-these are the two forms of deliberate assault on human beings. Both can coerce people into acting against their will. Most harm that can befall victims through violence can come to them also through deceit. But deceit controls more subtly, for it works on belief as well as action. Even Othello, whom few would have dared to try to subdue by force, could be brought to destroy himself and Desdemona through falsehood. The knowledge of this coercive element in deception, and of our vulnerability to it, underlies our sense of the centrality of truthfulness. ...

All our choices depend on our estimates of what is the case; these estimates must in turn often rely on information from others. Lies distort this information and therefore our situation as we perceive it, as well as our choices.

THE PERSPECTIVE OF THE DECEIVED
Those who learn that they have been lied to in an important matter -say, the identity of their parents, the affection of their spouse, or the integrity of their government-are resentful, disappointed, and suspicious. They feel wronged; they are wary of new overtures. And they look back on their past beliefs and actions in the new light of the discovered lies. They see that they were manipulated, that the deceit made them unable to make choices for themselves according to the most adequate information available, unable to act as they would have wanted to act had they known all along.

It is true, of course, that personal, informed choice is not the only kind available to them. They may decide to abandon choosing for themselves and let others decide for them-as guardians, financial advisors, or political representatives. They may even decide to abandon choice based upon information of a conventional nature altogether and trust instead to the stars or to throws of the dice or to soothsayers.

But such alternatives ought to be personally chosen and not surreptitiously imposed by lies or other forms of manipulation. Most of us would resist loss of control over which choices we want to delegate to others and which ones we want to make ourselves, aided by the best information we can obtain. We resist because experience has taught

us the consequences when others choose to deceive us, even "for our own good." Of course, we know that many lies are trivial. But since we, when lied to, have no way to judge which lies are the trivial ones, and since we have no confidence that liars will restrict themselves to just such trivial lies, the perspective of the deceived leads us to be wary of all deception. ...

Deception, then, can be coercive. When it succeeds, it can give power to the deceiver-power that all who suffer the consequences of lies would not wish to abdicate. ...

THE PRINCIPLE OF VERACITY
...I believe that we must at the very least accept as an initial premise Aristotle's view that lying is "mean and culpable" and that truthful statements are preferable to lies in the absence of special considerations. This premise gives an initial negative weight to lies. It holds that they are not neutral from the point of view of our choices; that lying requires explanation, whereas truth ordinarily does not. It provides a counterbalance to the crude evaluation by liars of their own motives and of the consequences of their lies. And it places the burden of proof squarely on those who assume the liar's perspective.

This presumption against lying can also be stated so as to stress the positive worth of truthfulness or veracity. I would like … to refer to the "principle of veracity" as an expression of this initial imbalance in our weighing of truthfulness and lying. ...

TYPES OF EXCUSES
What is it, then, that can conflict with the requirement for truthfulness so as to make lies permissible at times? Say you are caught in a compromising lie. What excuses might you offer? What kinds of excuses?

An excuse seeks to extenuate, sometimes to remove the blame entirely from something which would otherwise be a fault. It can seek to extenuate in three ways. First, it can suggest that what is seen as a fault is not really one. Secondly, it can suggest that, though there has been a fault, the agent is not really blameworthy, because he is not responsible. And finally, it can suggest that, though there has been a fault, and though the agent is responsible, he is not really to blame because he has good reasons to do as he did.

(a) Excuses of the first type may claim that the supposed lie is not really a lie, but a joke, perhaps, or an evasion, an exaggeration, a flight of fancy. Or else such an excuse may argue that since it is impossible to give objective distinctions between truth and falsehood, the supposed lie cannot be proved to be one.

(b) The second type of excuse holds that, though there may have been deception, the agent is not really or not completely responsible. The liar may claim he never meant to mislead, or was incompetent, perhaps drunk, or talking in his sleep, or coerced into deceiving. Or else he may take refuge in arguing that no one can ever be held responsible for lies, that free choice in that respect is a myth.

Both these types of excuses obviously cover a vast territory and are in constant use by liars. But it is the third type which will be the focus of [our] attention … - the type of excuse which is most fundamental for the process of evaluating deliberate lies. In this third type of excuse, the liar admits the lie, accepts responsibility for it, but offers reasons to show that he should be partially or even wholly cleared of blame. All three kinds of excuses are often present in the same effort to extenuate anyone lie. ...

(c) The third type of excuse, then, offers moral reasons for a lie, reasons to show that a lie ought, under the circumstances, to be allowed.

PATERNALISM
...To act paternalistically is to guide and even coerce people in order to protect them and serve their best interests, as a father might his children. ... The need for some paternalistic restraints is obvious. We survive only if protected from harm as children. Even as adults, we tolerate a number of regulations designed to reduce dangers such as those of infection or accidents. But it is equally obvious that the intention of guarding from harm has led, both through mistake and through abuse, to great suffering. The "protection" can suffocate; it can also exploit. Throughout history, men, women, and children have been compelled to accept de- grading work, alien religious practices, institutionalization, and even wars alleged to "free" them, all in the name of what someone has declared to be their own best interest. And deception may well have outranked force as a means of subjection: duping people to conform, to embrace ideologies and cults-never more zealously perpetrated than by those who believe that the welfare of those deceived is at issue.

Apart from guidance and persuasion, the paternalist can manipulate in two ways: through force and through deception.

One reason for the appeal of paternalistic lies is that they, unlike so much deception, are felt to be without bias and told in a disinterested wish to be helpful to fellow human beings in need. On closer examination, however, this objectivity and disinterest are often found to be spurious. The benevolent motives claimed by liars are then seen to be mixed with many others much less altruistic-the fear of confrontation which would accompany a more outspoken acknowledgment of the liar's feelings and intentions; the desire to avoid setting in motion great pressures to change, as where addiction or infidelity are no longer concealed; the urge to maintain the power that comes with duping others (never greater than when those lied to are defenseless or in need of care). These are motives of self-protection and of manipulation, of wanting to retain control over a situation and to remain a free agent. So long as the liar does not see them clearly, his judgment that his lies are altruistic and thus excused is itself biased and unreliable.

The perspective of the deceived, then, challenges the "helpfulness" of many paternalistic lies. It questions, moreover, even the benefits that are thought to accrue to the liar .The effects of deception on the liars themselves-the need to shore up lies, keep them in good repair, the anxieties relating to possible discovery , the entanglements and threats to integrity-are greatest in a close relationship where it is rare that one lie will suffice. It can be very hard to maintain the deceit when one is in close contact with those one lies to. The price of "living a lie" often turns out not even to have been worth the gains for the liars themselves.

JUSTIFICATION?
The two simplest approaches to paternalistic lying, then, have to be ruled out. It is not all right to lie to people just because they are children, or unable to judge what one says, or indeed because they belong to any category of persons at all. And the simple conviction voiced by Luther and so many others that the "helpful lie" is excused by its own altruism is much too uncritical. It allows far too many lies to go unquestioned. Both of these views fail to take into consideration the harm that comes from lying, not only to the deceived but to the liars and to the bonds they share.

DECEPTION AS THERAPY
A forty-six-year-old man, coming to a clinic for a routine physical check-up needed for insurance purposes, is diagnosed as having a form of cancer likely to cause him to die within six months. No known cure exists for it. Chemotherapy may prolong life by a few extra months, but will have side effects the physician does not think warranted in this case. In addition, he believes that such therapy should be reserved for patients with a chance for recovery or remission. The patient has no symptoms giving him any reason to believe that he is not perfectly healthy. He expects to take a short vacation in a week.

For the physician, there are now several choices involving truthfulness. Ought he to tell the patient what he has learned, or conceal it? If asked, should he deny it? If he decides to reveal the diagnosis, should he delay doing so until after the patient returns from his vacation? Finally, even if he does reveal the serious nature of the diagnosis, should he mention the possibility of chemotherapy and his reasons for not recommending it in this case? Or should he encourage every last effort to postpone death?

In this particular case, the physician chose to inform the patient of his diagnosis right away. He did not, however, mention the possibility of chemotherapy. A medical student working under him disagreed; several nurses also thought that the patient should have been informed of this possibility. They tried, unsuccessfully, to persuade the physician that this was the patient's right. When persuasion had failed, the student elected to disobey the doctor by informing the patient of the alternative of chemotherapy. After consultation with family members, the patient chose to ask for the treatment.

Doctors confront such choices often and urgently. What they reveal, hold back, or distort will matter profoundly to their patients. Doctors stress with corresponding vehemence their reasons for the distortion or concealment: not to confuse a sick person needlessly, or cause what may well be unnecessary pain or discomfort, as in the case of the cancer patient; not to leave a patient without hope, as in those many cases where the dying are not told the truth about their condition; or to improve the chances of cure, as where unwarranted optimism is expressed about some form of therapy. Doctors use information as part of the therapeutic regimen; it is given out in amounts, in admixtures, and according to timing believed best for patients. Accuracy, by comparison, matters far less.

Lying to patients has, therefore, seemed an especially excusable act. Some would argue that doctors, and only doctors, should be granted the right to manipulate the truth in ways so undesirable for politicians, lawyers, and others.1 Doctors are trained to help patients; their relationship to patients carries special obligations, and they know much more than laymen about what helps and hinders recovery and survival.

Even the most conscientious doctors, then, who hold themselves at a distance from the quacks and the purveyors of false remedies, hesitate to for- swear all lying. Lying is usually wrong, they argue, but less so than allowing the truth to harm patients. B. C. Meyer echoes this very common view:

[O]urs is a profession which traditionally has been guided by a precept that transcends the virtue of uttering truth for truth's sake, and that is, "so far as possible, do no harm."2

Truth, for Meyer, may be important, but not when it endangers the health and well-being of patients. This has seemed self-evident to many physicians in the past-so much so that we find very few mentions of veracity in the codes and oaths and writings by physicians through the centuries. This absence is all the more striking as other principles of ethics have been consistently and movingly expressed in the same documents.

The two fundamental principles of doing good and not doing harm -- of beneficence and nonmaleficence -- are the most immediately relevant to medical practitioners, and the more frequently stressed. To preserve life and good health, to ward off illness, pain, and death-these are the perennial tasks of medicine and nursing. These principles have found powerful expression at all times in the history of medicine. In the Hippocratic oath physicians promise to:

use treatment to help the sick…. but never with a view to injury and wrong-doing.3

And a Hindu oath of initiation says:

Day and night, however thou mayest be engaged, thou shalt endeavor for the relief of patients with all thy heart and soul. Thou shalt not desert or injure the patient even for the sake of thy living.4

But there is no similar stress on veracity. It is absent from virtually all oaths, codes, and prayers. The Hippocratic Oath makes no mention of truthfulness to patients about their condition, prognosis, or treatment. Other early codes and prayers are equally silent on the subject. To be sure, they often refer to the confidentiality with which doctors should treat all that patients tell them; but there is no corresponding reference to honesty toward the patient. One of the few who appealed to such a principle was Amatus Lusitanus, a Jewish physician widely known for his skill, who, persecuted, died of the plague in 1568. He published an oath which reads in part:

If I lie, may I incur the eternal wrath of God and of His angel Raphael, and may nothing in the medical art succeed for me according to my desires.5

Later codes continue to avoid the subject. Not even the Declaration of Geneva, adopted in 1948 by the World Medical Association, makes any reference to it. And the Principles of Medical Ethics of the American Medical Association 6 still leave the matter of informing patients up to the physician.

Given such freedom, a physician can decide to tell as much or as little as he wants the patient to know, so long as he breaks no law. In the case of the man mentioned at the beginning. ..some physicians might feel justified in lying for the good of the patient, others might be truthful. Some may conceal alternatives to the treatment they recommend; others not. In each case, they could appeal to the AMA Principles of Ethics. A great many would choose to be able to lie. They would claim that not only can a lie avoid harm for the patient, but that it is also hard to know whether they have been right in the first place in making their pessimistic diagnosis; a "truthful" statement could therefore turn out to hurt patients unnecessarily. The concern for curing and for supporting those who cannot be cured then runs counter to the desire to be completely open. This concern is especially strong where the prognosis is bleak; even more so when patients are so affected by their illness or their medication that they are more dependent than usual, perhaps more easily depressed or irrational.

Physicians know only too well how uncertain a diagnosis or prognosis can be. They know how hard it is to give meaningful and correct answers regarding health and illness. They also know that disclosing their own uncertainty or fears can reduce those benefits that depend upon faith in recovery. They fear, too, that revealing grave risks, no matter how unlikely it is that these will come about, may exercise the pull of the "self-fulfilling prophecy."

They dislike being the bearers of uncertain or bad news as much as anyone else. And last, but not least, sitting down to discuss an illness truthfully and sensitively may take much-needed time away from other patients.

These reasons help explain why nurses and physicians and relatives of the sick and dying prefer not to be bound by rules that might limit their ability to suppress, delay, or distort information. This is not to say that they necessarily plan to lie much of the time. They merely want to have the freedom to do so when they believe it wise. And the reluctance to see lying prohibited explains, in turn, the failure of the codes and oaths to come to grips with the problems of truth telling and lying.

But sharp conflicts are now arising. Doctors no longer work alone with patients. They have to consult with others much more than before; if they choose to lie, the choice may not be met with approval by all who take part in the care of the patient. A nurse expresses the difficulty which results as follows:

From personal experience I would say that the patients who aren't told about their terminal illness have so many verbal and mental questions unanswered that many will begin to realize that their illness is more serious than they're being told. ...

Nurses care for these patients twenty-four hours a day compared to a doctor's daily brief visit, and it is the nurse many times that the patient will relate to, once his underlying fears become overwhelming. ...This is difficult for us nurses because being in constant contact with patients we can see the events leading up to this. The patient continually asks you, "Why isn't my pain decreasing?" or "Why isn't the radiation treatment easing the pain?" ...We cannot legally give these patients an honest answer as a nurse (and I'm sure I wouldn't want to) yet the problem is still not resolved and the circle grows larger and larger with the patient alone in the middle.7

The doctor's choice to lie increasingly involves co-workers in acting a part they find neither humane nor wise. The fact that these problems have not been carefully thought through within the medical profession, nor seriously addressed in medical education, merely serves to intensify the conflicts.8 Different doctors then respond very differently to patients in exactly similar predicaments. The friction is increased by the fact that relatives often disagree even where those giving medical care to a patient are in accord on how to approach the patient. Here again, because physicians have not worked out to common satisfaction the question of whether relatives have the right to make such requests, the problems are allowed to be haphazardly resolved by each physician as he sees fit.

THE PATIENT'S PERSPECTIVE
The turmoil in the medical profession regarding truth telling is further augmented by the pressures that patients themselves now bring to bear and by empirical data coming to light. Challenges are growing to three major arguments for lying to patients: that truthfulness is impossible; that patients do not want bad news; and that truthful information harms them. ...

The second argument for deceiving patients refers specifically to giving them news of a frightening or depressing kind. It holds that patients do not, in fact, generally want such information, that they prefer not to have to face up to serious illness and death. On the basis of such a belief, most doctors in a number of surveys stated that they do not, as a rule, inform patients that they have an illness such as cancer.

When studies are made of what patients desire to know, on the other hand, a large majority say that they would like to be told of such a diagnosis.9 All these studies need updating and should be done with large numbers of patients and non-patients. But they do show that there is generally a dramatic divergence between physicians and patients on the factual question of whether patients want to know what ails them in cases of serious illness such as cancer. In most of the studies, over 80 percent of the persons asked indicated that they would want to be told.

Sometimes this discrepancy is set aside by doctors who want to retain the view that patients do not want unhappy news. In reality, they claim, the fact that patients say they want it has to be discounted. The more someone asks to know, the more he suffers from fear which will lead to the denial of the information even if it is given. Informing patients is, therefore, useless; they resist and deny having been told what they cannot assimilate. According to this view, empirical studies of what patients say they want are worthless since they do not probe deeply enough to uncover this universal resistance to the contemplation of one's own death.

This view is only partially correct. For some patients, denial is indeed well established in medical experience. A number of patients (estimated at between 15 percent and 25 percent) will give evidence of denial of having been told about their illness, even when they repeatedly ask and are repeatedly informed. And nearly everyone experiences a period of denial at some point in the course of approaching death.10 Elisabeth Kubler-Ross sees denial as resulting often from premature and abrupt information by a stranger who goes through the process quickly to "get it over with." She holds that denial functions as a buffer after unexpected shocking news, permitting individuals to collect themselves and to mobilize other defenses. She described prolonged denial in one patient as follows:

She was convinced that the X-rays were "mixed up"; she asked for reassurance that her pathology report could not possibly be back so soon and that another patient's report must have been marked with her name. When none of this could be confirmed, she quickly asked to leave the hospital, looking for another physician in the vain hope "to get a better explanation for my troubles." This patient went "shopping around" for many doctors, some of whom gave her reassuring answers, others of whom confirmed the previous suspicion. Whether confirmed or not, she reacted in the same manner; she asked for examination and reexamination.11

But to say that denial is universal flies in the face of all evidence. And to take any claim to the contrary as "symptomatic" of deeper denial leaves no room for reasoned discourse. There is no way that such universal denial can be proved true or false. To believe in it is a metaphysical belief about man's condition, not a statement about what patients do and do not want. It is true that we can never completely understand the possibility of our own death, any more than being alive in the first place. But people certainly differ in the degree to which they can approach such knowledge, take it into account in their plans, and make their peace with it.

Montaigne claimed that in order to learn both to live and to die, men have to think about death and be prepared to accept it.12 To stick one's head in the sand, or to be prevented by lies from trying to discern what is to come, hampers freedom - freedom to consider one's life as a whole, with a beginning, a duration, an end. Some may request to be deceived rather than to see their lives as thus finite; others reject the information which would require them to do so; but most say that they want to know. Their concern for knowing about their condition goes far beyond mere curiosity or the wish to make isolated personal choices in the short time left to them; their stance toward the entire life they have lived, and their ability to give it meaning and completion, are at stake.13 In lying or with- holding the facts which permit such discernment, doctors may reflect their own fears (which, according to one study,14 are much stronger than those of laymen) of facing questions about the meaning of one's life and the inevitability of death.

Beyond the fundamental deprivation that can result from deception, we are also becoming increasingly aware of all that can befall patients in the course of their illness when information is denied or distorted. Lies place them in a position where they no longer participate in choices concerning their own health, including the choice of whether to be a "patient" in the first place. A terminally ill person who is not informed that his illness is incurable and that he is near death cannot make decisions about the end of his life: about whether or not to enter a hospital, or to have surgery; where and with whom to spend his last days; how to put his affairs in order-these most personal choices cannot be made if he is kept in the dark, or given contradictory hints and clues.

It has always been especially easy to keep knowledge from terminally ill patients. They are most vulnerable, least able to take action to learn what they need to know, or to protect their autonomy. The very fact of being so ill greatly increases the likelihood of control by others. And the fear of being helpless in the face of such control is growing. At the same time, the period of dependency and slow deterioration of health and strength that people undergo has lengthened. There has been a dramatic shift toward institutionalization of the aged and those near death. (Over 80 percent of Americans now die in a hospital or other institution.)

Patients who are severely ill often suffer a further distancing and loss of control over their most basic functions. Electrical wiring, machines, intravenous administration of liquids, all create new dependency and at the same time new distance between the patient and all who come near .Curable patients are often willing to undergo such procedures; but when no cure is possible, these procedures merely intensify the sense of distance and uncertainty and can even become a substitute for comforting human acts. Yet those who suffer in this way often fear to seem troublesome by complaining. Lying to them, perhaps for the most charitable of purposes, can then cause them to slip unwittingly into subjection to new procedures, perhaps new surgery , where death is held at bay through transfusions, respirators, even resuscitation far beyond what most would wish.

Seeing relatives in such predicaments has caused a great upsurge of worrying about death and dying. At the root of this fear is not a growing terror of the moment of death, or even the instants before it. Nor is there greater fear of being dead. In contrast to the centuries of lives lived in dread of the punishments to be inflicted after death, many would now accept the view expressed by Epicurus, who died in 270 H.C.:

Death, therefore, the most awful of evils, is nothing to us, seeing that, when we are, death is not come, and, when death is come, we are not. 15

The growing fear, if it is not of the moment of dying nor of being dead, is of all that which now precedes dying for so many: the possibility of prolonged pain, the increasing weakness, the uncertainty, the loss of powers and chance of senility, the sense of being a burden. This fear is further nourished by the loss of trust in health professionals. In part, the loss of trust results from the abuses which have been exposed-the Medicaid scandals, the old-age home profiteering, the commercial exploitation of those who seek remedies for their ailments; 16 in part also because of the deceptive practices patients suspect, having seen how friends and relatives were kept in the dark; in part, finally, because of the sheer numbers of persons, often strangers, participating in the care of anyone patient. Trust which might have gone to a doctor long known to the patient goes less easily to a team of strangers, no matter how expert or well-meaning.

It is with the working out of all that informed consent17 implies and the information it presupposes that truth telling is coming to be discussed in a serious way for the first time in the health professions. Informed consent is a farce if the information provided is distorted or withheld. And even complete information regarding surgical procedures or medication is obviously useless unless the patient also knows what the condition is that these are supposed to correct.

Bills of rights for patients, similarly stressing the right to be informed, are now gaining acceptance.18 This right is not new, but the effort to implement it is. Nevertheless, even where patients are handed the most elegantly phrased Bill of Rights, their right to a truthful diagnosis and prognosis is by no means always respected.

The reason why even doctors who recognize a patient's right to have information might still not provide it brings us to the third argument against telling all patients the truth. It holds that the information given might hurt the patient and that the concern for the right to such information is therefore a threat to proper health care. A patient, these doctors argue, may wish to commit suicide after being given discouraging news, or suffer a cardiac arrest, or simply cease to struggle, and thus not grasp the small remaining chance for recovery. And even where the outlook for a patient is very good, the disclosure of a minute risk can shock some patients or cause them to reject needed protection such as a vaccination or antibiotics.

The factual basis for this argument has been challenged from two points of view. The damages associated with the disclosure of sad news or risks are rarer than physicians believe; and the benefits which result from being informed are more substantial, even measurably so. Pain is tolerated more easily, recovery from surgery is quicker, and co- operation with therapy is greatly improved. The attitude that "what you don't know won't hurt you" is proving unrealistic; it is what patients do not know but vaguely suspect that causes them corrosive worry. It is certain that no answers to this question of harm from information are the same for all patients. If we look, first, at the fear expressed by physicians that informing patients of even remote or unlikely risks connected with a drug prescription or operation might shock some and make others refuse the treatment that would have been best for them, it appears to be unfounded for the great majority of patients. Studies show that very few patients respond to being told of such risks by withdrawing their consent to the procedure and that those who do withdraw are the very ones who might well have been upset enough to sue the physician had they not been asked to consent beforehand.19 It is possible that on even rarer occasions especially susceptible persons might manifest physical deterioration from shock; some physicians have even asked whether patients who die after giving informed consent to an operation, but before it actually takes place, somehow expire because of the information given to them,2° While such questions are unanswerable in anyone case, they certainly argue in favor of caution, a real concern for the person to whom one is recounting the risks he or she will face, and sensitivity to all signs of stress.

The situation is quite different when persons who are already ill, perhaps already quite weak and discouraged, are told of a very serious prognosis. Physicians fear that such knowledge may cause the patients to commit suicide, or to be frightened or depressed to the point that their illness takes a downward turn. The fear that great numbers of patients will commit suicide appears to be unfounded.21 And if some do, is that a response so unreasonable, so much against the patient's best interest that physicians ought to make it a reason for concealment or lies? Many societies have al- lowed suicide in the past; our own has decriminalized it; and some are coming to make distinctions among the many suicides which ought to be prevented if at all possible, and those which ought to be respected.22

Another possible response to very bleak news is the triggering of physiological mechanisms which allow death to come more quickly-a form of giving up or of preparing for the inevitable, de- pending on one's outlook. Lewis Thomas, studying responses in humans and animals, holds it not unlikely that:

There is a pivotal movement at some stage in the body's reaction to injury or disease, maybe in aging as well, when the organism concedes that it is finished and the time for dying is at hand, and at this moment the events that lead to death are launched, as a coordinated mechanism. Functions are then shut off, in sequence, irreversibly, and, while this is going on, a neural mechanism, held ready for this occasion, is switched on.23

Such a response may be appropriate, in which case it makes the moments of dying as peaceful as those who have died and been resuscitated so often testify. But it may also be brought on inappropriately, when the organism could have lived on, perhaps even induced malevolently, by external acts intended to kill. Thomas speculates that some of the deaths resulting from "hexing" are due to such responses. Levi-Strauss describes deaths from exorcism and the casting of spells in ways which suggest that the same process may then be brought on by the community.24

It is not inconceivable that unhappy news abruptly conveyed, or a great shock given to someone unable to tolerate it, could also bring on such a "dying response," quite unintended by the speaker. There is every reason to be cautious and to try to know ahead of time how susceptible a patient might be to the accidental triggering-however rare--of such a response. One has to assume, however, that most of those who have survived long enough to be in a situation where their informed consent is asked have a very robust resistance to such accidental triggering of processes leading to death. When, on the other hand, one considers those who are already near death, the "dying response" may be much less inappropriate, much less accidental, much less unreasonable. In most societies, long before the advent of modem medicine, human beings have made themselves ready for death once they felt its approach. Philippe Aries describes how many in the Middle Ages prepared themselves for death when they "felt the end approach." They awaited death lying down, surrounded by friends and relatives. They recollected all they had lived through and done, pardoning all who stood near their deathbed, calling on God to bless them, and finally praying. "After the final prayer all that remained was to wait for death, and there was no reason for death to tarry."25

Modem medicine, in its valiant efforts to defeat disease and to save lives, may be dislocating the conscious as well as the purely organic responses allowing death to come when it is inevitable, thus denying those who are dying the benefits of the traditional approach to death. In lying to them, and in pressing medical efforts to cure them long past the point of possible recovery, physicians may thus rob individuals of an autonomy few would choose to give up.

Sometimes, then, the "dying response" is a natural organic reaction at the time when the body has no further defense. Sometimes it is inappropriately brought on by news too shocking or given in too abrupt a manner. We need to learn a great deal more about this last category, no matter how small. But there is no evidence that patients in general will be debilitated by truthful information about their condition.

Apart from possible harm from information, we are coming to learn much more about the benefits it can bring patients. People follow instructions more carefully if they know what their disease is and why they are asked to take medication; any benefits from those procedures are therefore much more likely to come about.26 Similarly, people recover faster from surgery and tolerate pain with less medication if they understand what ails them and what can be done for them.27

DEONTOLOGY

SOME OF THE MAIN KINDS OF DEONTOLOGY

ROSS'S SYSTEM OF PRIMA FACIE DUTIES (RD):

KANT'S IMPERATIVES

• The Formula of Universal (Moral) Law
• The Formula of Respect

RIGHTS GROUNDED THEORIES (RR)

• Negative right
• Positive rights

ROSS'S SYSTEM OF PRIMA FACIE DUTIES (RD)

An action, A, is morally right if and only if (iff) no alternative to this action is a more stringent prima facie duty.

"I suggest ‘prima facie duty' or ‘conditional duty' as a brief way of referring to the characteristic... which an act has, in virtue of being of a certain kind (e.g., the keeping of a promise)... Whether an act is a duty proper or an actual duty depends on all morally significant kinds it is an instance of" (Ross: The Right and the Good, pp. 19-20).

THE MAIN KINDS OF PRIMA FACIE DUTIES

1. Fidelity
2. Reparation
3. Gratitude
4. Justice
5. Beneficence
6. Self-improvement
7. Non-maleficence

KANT'S IMPERATIVE(S) -- FORMULA OF UNIVERSAL (MORAL) LAW

Kant believes that actions are not merely bodily movement -- to use an example, blinking is not the same thing as winking. What distinguishes actions from mere bodily movement is their intentionality. When we act, we think of what we do in general terms. For example, right now

• I write
• I telling the truth
• I am teaching students

Kant thinks that, when we evaluate whether action is right or wrong, we may have in mind one of two things.

• (A) We may wonder whether or not the action is an efficient way to achieve a certain goal.
• (B) We may wonder whether the action is good (or right) even when taken in itself.

As he observes:

"The hypothetical imperative, therefore, says only that the action is good to some purpose, possible or actual. In the former case it is a problematical, in the latter an assertorical, practical principle. The categorical imperative, which declares the action to be of itself objectively necessary without making any reference to a purpose, i.e., without having any other end, holds as an apodictical (practical) principle.... " (Immanuel Kant, "The Categorical Imperative")

Thus, Kant distinguishes two kinds of imperatives:

• Hypothetical Imperatives link actions with a desirable goal.
• Categorical Imperative asserts that some actions are absolutely and unconditionally necessary. (We might say that Kant idea is that we can determine that some action is morally desirable (or right), when we consider what kind of action it is

Kant asserts that there is only one categorical imperative, and that all moral duties can be inferred from this imperative:

"if I think of a categorical imperative, I know immediately what it contains. For since the imperative contains besides the law only the necessity of the maxim of acting in accordance with this law. while the law contains no condition to which it is restricted, there is nothing remaining in it except the universality of law as such to which the maxim of the action should conform; and in effect this conformity alone is represented as necessary by the imperative.
There is, therefore, only one categorical imperative. It is: Act only according to that maxim by which you can at the same time will that it should become a universal law. " (Immanuel Kant, "The Categorical Imperative")

Let us state Kant's idea in the form:

(KI1) An act is morally right if and only if this act is based on a maxim (or a subjective principle of will) that may become universal (moral) law (that you may rationally will to become such a law).

To see how this principle is supposed to work, think that maxims are subjective rules that actually motivate a person. Generalized maxims are principles that we achieve by eliminating all references to individuals. Here are some examples:

MAXIMS ("subjective" rules)	GENERALIZATIONS (objective rules)
I will lie when I'm tempted to lie.	Everyone will lie when one is tempted to lie.
I will keep change when I can get away with this.	Everyone will keep change when one can do this.
I will break my word when it's beneficial for me.	One will break one's word when it's beneficial for her.

Imagine now that someone considers a certain action. This person must consider his or her maxim. Then she needs to consider a generalized form of this maxim. Finally, she has to determine this generalized maxim can becomes a moral rule in a society. That is, she or he must consider what would happen when everyone acted on the same maxim. Can we rationally will (want) that everyone follows the same rule?

• If YES ===> his or her action (based on this maxim) is morally right.
• If NO ===> his or her action (based on this maxim) is morally wrong.

Consider Kant's example #2: "Another man finds himself forced by need to borrow money. He well knows that he will not be able to repay it, but he also sees that nothing will be loaned him if he does not firmly promise to repay it at a certain time. He desires to make such a promise, but he has enough conscience to ask himself whether it is not improper and opposed to duty to relieve his distress in such a way. Now, assuming he does decide to do so, the maxim of his action would be as follows: When I believe myself to be in need of money, I will borrow money and promise to repay it, although I know I shall never do so. Now this principle of self-love or of his own benefit may very well be compatible with his whole future welfare, but the question is whether it is right. He changes the pretension of self-love into a universal law and then puts the question: How would it be if my maxim became a universal law? He immediately sees that it could never hold as a universal law of nature and be consistent with itself; rather it must necessarily contradict itself. For the universality of a law which says that anyone who believes himself to be in need could promise what he pleased with the intention of not fulfilling it would make the promise itself and the end to be accomplished by it impossible; no one would believe what was promised to him but would only laugh at any such assertion as vain pretense."

A person in Kant's example acts on the following maxim:

(Max) When I believe myself to be in need of money, I will borrow money and promise to repay it, although I know I shall never do so.

The generalization of this maxim goes as follows:

(GenMax) Anyone who believes himself to be in need could promise what he pleased with the intention of not fulfilling.

Kant now asks whether (GenMax) can become the universal moral law for a society. He thinks that it cannot. For, if (GenMax) were adopted, no one would believe any promising. So, no one could borrow money by making a false promise.

PROBLEMS FOR KANT

MAXIMS ("subjective" rules)	GENERALIZATIONS (objective rules)
I will never be the first to arrive at a party.	No one ever be the first to arrive at a party.
I will never be the last to leave a party	No one ever be the last to leave a party.

Actions based on these maxims are morally innocent (permissible). But I cannot rationally will that the generalized maxims become moral rules. So, (K1) implies that my actions are wrong.

KANT'S SECOND IMPERATIVE -- THE FORMULA OF RESPECT

Kant asserts also what follows: "...man and, in general, every rational being exists as an end in himself and not merely as a means to be arbitrarily used by this or that will. In all his actions, whether they are directed to himself or to other rational beings, he must always be regarded at the same time as an end . . .
The ground of this principle is: rational nature exists as an end in itself. Man necessarily thinks of his own existence in this way; thus far it is a subjective principle of human actions. Also every other rational being thinks of his existence by means of the same rational ground which holds also for myself, thus it is at the same time an objective principle from which, as a supreme practical ground, it must be possible to derive all laws of the will. The practical imperative, therefore, is the following: Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only. " (Immanuel Kant, "The Categorical Imperative")

We can extract from this passage the second formulation of categorical imperative:

(KI2) An act is morally right iff the agent does not treat anyone (any person) merely as a means but also as an end in itself.

Important things to remember

• Treating someone as a means is not the same thing as treating someone merely as a means.
• Kant is not very clear what it means to treat someone merely as a means (as opposed to, as a means and also as an end in itself).

  A "HARM" INTERPRETATION OF KANTIAN ETHICS

  • X treats Y merely as a means if X harms (or hurts) Y.
    X does not treat Y merely as a means if X benefits Y (or at least does not harm/hurt) Y

    A PROBLEM: Sometimes we harm a well informed volunteer. In such a case, our action is not wrong (as this interpretation implies).

  A "RESPECT FOR AUTONOMY" INTERPRETATION OF KANTIAN ETHICS

  • X treats Y merely as a means if X does not respect autonomy of Y.
    X does not treat Y merely as a means if X respects autonomy of Y.

  SOME PROBLEMS RELATED TO RESPECT FOR AUTONOMY
  In general, we respect one's autonomy if we act in accordance with his or her evaluations.

  AN "EXPLICIT CONSENT" INTERPRETATION OF RESPECT FOR AUTONOMY

  • X treats Y merely as a means if Y does/did not explicitly consent to this treatment.
    X does not treat Y merely as a means if Y explicitly consents to this treatment.
    • A PROBLEM: We do not consent to some forms of "emergency" treatment; they do not require any explicit consent.
    • A FURTHER PROBLEM: Sometimes we do have an explicit consent and yet the action is wrong (the consent is not rational).

  AN "INFORMED CONSENT" OF KANTIAN ETHICS

  X treats Y merely as a means iff Y does not give rational and informed consent to this treatment.

  AN INFORMED CONSENT:
  Consent given after full disclosure of risks, benefits, and alternative treatments to any proposed procedure; such consent would be autonomous.

  AN "INFORMED HYPOTHETICAL CONSENT" INTERPRETATION OF AUTONOMY

  X treats Y merely as a means if Y would not rationally consent to this treatment, if Y were well informed.

  X does not treat Y merely as a means if Y would rationally consents to this treatment, if Y were well informed.

  TWO LEVEL VIEW

  • Clear cut cases: we base the decisions on informed hypothetical consent
  • Hard cases: when it is not clear whether Y would consent or not (e.g., Y can be seriously harmed, there are serious risks involved, etc)…
    we require that Y gives an explicit and rational consent to some treatment or else Y is treated merely as a means

  SOME PROBLEMS

  • Would a burglar to our calling police (see Gert, "Morality vs. Slogans")?
  • Would a criminal not consent to being sent to jail? Would an enemy consent to being spied upon?

RIGHTS GROUNDED THEORIES (RR)

An act is morally right if and only if the act does not violate any rights.

There is a difference between negative and positive rights.

X is a negative right iff X is a right not to be interfered with.
X is a positive right iff X is a right to receive some benefits.
Negative rights are correlated with negative obligations or duties.
Positive rights are correlated with positive obligations or duties.

OBJECTIONS TO UTILITARIANISM

OBJECTION TO HEDONISM (ASSUMED BY CLASSIC UTILITARIANS):

In addition to pleasure, there are other intrinsically valuable things.
Notice that this is not an objection to utilitarianism, or consequentialism, in general. This objection questions only a theory of intrinsic value assumed by some utilitarians.

THE JUSTICE OBJECTION TO UTILITARIANISM
The central idea of this objection is that utilitarianism and justice are incompatible.

An Assumption: Some acts have the following features:

1. there are gravely unjust, e.g. they violate human rights, go contrary to our duties, etc. (===> hence, they are morally wrong)
2. yet, these gravely unjust acts maximize utility (===> hence, they are right by utilitarian standards)

An Argument against Utilitarianism:

1. If utilitarianism is true, then gravely unjust acts are morally right.
2. Gravely unjust acts are not right; they are morally wrong.
3. Therefore, utilitarianism is false. [from (1) and (2)]

Possible replies:

• Hidden alternatives.
• Hidden utilities (unforeseen consequences, long run consequences)
• Different Value theory.

UTILITARIANISM AND SUPEREROGATORY ACTS

The central idea of this objection is that utilitarianism is incompatible with there being any supererogatory acts.

1) If classical utilitarianism is true, then we always ought to do our best; nothing less than the best is ever permissible.
2) Sometimes we are not require to do our best; supererogatory acts are possible.
Therefore, 3) classical utilitarianism is false. [from (1) and (2)]

UTILITARIAN EVALUATION OF ACTS

The factors that must be taken into account in a thorough utilitarian evaluation of the moral status (rightness/wrongness) of an action

• A) the short-term consequences of the action
• B) the long term consequences of the action
• C) the positive utility produces by the action
• D) the negative utility produced by the action
• E) the utility produced for everyone affected by this action
• F) how the utility the act produces compares to the utility produced by alternative actions

RULE UTILITARIANISM (INDIRECT UTILITARIANISM)

Step 1: Chose the best system of moral rules; this is the system that is the most beneficial (in a long run) for the society to adopt.
That is, chose the system of rules that, as a whole, maximizes utility

Step 2: Evaluate the actions in accordance with the system so chosen
That is, an action is right if it is in accordance with the system so chosen

The main idea, we ought to act in accordance with the rules even if and when, breaking a rule may maximize utility.