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3 The Modern 4—Principles Approach to Medical Ethics

3 The Modern 4—Principles Approach to Medical Ethics

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An Ordonomic Perspective in Medical Ethics



2.4



315



A Utilitarian Perspective on Medical Ethics



One might think that a utilitarian medical ethics (cf Singer 1994) would offer

solutions to the issues posed above because the utilitarian approach is ordered

precisely to the overall good: Act in such a way to benefit the most possible people

to the greatest degree possible: Utilitas suprema lex. It might seem that the

trade-offs would be acceptable for individual patients, the larger pool of potential

patients, and society in general because physicians would consider and choose

those medical treatments that generate maximum benefits. Indeed it is precisely this

argument that has been used by some of the physicians involved in the transplantation scandals. They have argued that their actions of manipulating patient data

were done with the intention of multiplying the utility of the donated organs. They

argued further that existing criteria for awarding organs were suboptimal and that

they were, so to speak, answering a higher call to justice. Yet this example also

demonstrates the great limitation of utilitarianism on the level of patient-physician

interaction.



2.5



Medical Ethics in the Human Rights Tradition



One can speak also about a rights-based ethical approach for medicine. This

approach bases its fundamental claims upon the broader tradition of the Universal

Declaration of Human Rights (UDHR 1948). This approach underscores the individual, the unique dignity of each patient and their basic human rights. A concrete

example of this approach can be seen in the International Council of Nurses’ Code

of Ethics for Nurses (ICN 1953 [2012]). The preamble of the code includes the

explicit responsibility of nurses to respect their patients’ human rights: “Inherent in

nursing is a respect for human rights, including cultural rights, the right to life and

choice, to dignity and to be treated with respect.” And the implementation of this

responsibility is stated this way in §1.1: “The nurse’s primary professional

responsibility is to people requiring nursing care.” The ethics code is quite comprehensive in the sense that it addresses the personal needs of the nurses themselves, their patients, professional environment, their profession and the larger

society. And it is also comprehensive in the sense that it addresses emotional and

physical aspects of care, but also the values of all of those people of the medical

community and those being served by it. The point here is that this is a very well

thought out and comprehensive code of ethics.

So the question we must ask is: What could we do to avoid the experience of the

ALS patient of our example above? Is there some way that the code could be altered

so that a nurse would not forget to properly place the call button? There are already

laws and hospital codes dealing with the necessity for such devices and outlining

their proper use (See DIN VDE 0834-1:2000-04 Rufanlagen in Krankenhäusern,

Pflegeheimen und ähnlichen Einrichtungen). The above example is illustrative of a



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deeper issue that cannot be addressed by appealing to individual nurses to amend

their personal values or be subject to additional moralistic directives. Rather, this

situation and others like it are best diagnosed as the effect of suboptimal incentive

structuring on the systems or institutional level. Codes of conduct that utilize

rights-based principles and arguments are ill-conceived—the error is a categorical

one. Take, for example, another clause from the code (1.6): “The nurse practices to

sustain and protect the natural environment and is aware of its consequences on

health.” This shows how the very reasoning of the code is directed at a social level

much more general than that appropriate for managing the relationship of nurses

and their patients.



3 The Necessity of a Change in Perspective

The very brief and selective overview of bioethical approaches above is meant to

draw attention to a very basic point regarding a common limitation shared by many

ethical approaches. The three case studies mentioned above were selected to

illustrate this limitation. And the present section makes the systematic argument for

this point.



3.1



The Concept of Ordonomics



Pies et al. (2009, 2010) introduced the term “ordonomics” into the international

debate on the societal role of business. Pies and his collaborators rely heavily on

Becker’s economic “imperialism”, Buchanan’s normative constitutionalism, so

called “constitutional economics” (Buchanan 1990) and Homanns “ethics in terms

of economics” (Homann and Lütge 2004). According to Pies et al. (2010) “[t]he

basic concern of ordonomics is the systematic exploration of the interdependencies

between social structure and semantics. To this end, ordonomics makes uses of

elementary game theory and a rational-choice-based analysis of institutional

arrangements” (ibid., p. 267). Ordonomics is distinctive in its realistic skepticism

that ethical actions can be achieved with moralistic appeals that challenge persons to

act against their own best interests. An ordonomic ethics differentiates the interpersonal level of action from more systematic and structural levels. It focuses upon

those levels and, with the aid of empirically-based social sciences, attempts to

achieve insight about how to order rules regimens to optimally align personal

interests with socially beneficial actions. Ordonomics explores the social structure,

i.e. “the institutional framework of society, including its incentive properties; ‘semantics’ has to do with the terminology of public discourse and the underlying

thought categories that determine how people perceive, describe and evaluate social

interactions and, in particular, social conflicts” (ibid., p. 267). Ordonomics is an

ethical position that draws from philosophical contractualism and places emphasis



An Ordonomic Perspective in Medical Ethics



317



upon the role of the particular conditions under which actors are asked to act morally.

Specifically, it examines the structure of rules, the “order”, within which persons are

acting, i.e., on the level of institutional social ordering (cf Lütge 2012, p. 89).



3.2



An Ordonomic-Ethical Perspective Surpassing

the Limits of Classical Individualistic Ethics



How does one implement moral rules or influence moral decision-making? The

answer is that one must structure institutions so that the actors in those institutions

will be incentivized to act in ways that are socially beneficial. Creating mutual

benefit scenarios on the rule level may not seem very much like classical moral

theories where morals often means acting without any self-interest (subjective

preferences in a broad sense, e.g. the subjective preference of a physician for his or

her patient instead of other patients unknown to him or her). The ordonomic

approach has made strides in developing ethics in ways that combine self-interest

with societal expectations. The approach is using advances of economic modeling

for working out optimal scenarios, and for recognizing sub-optimal situations that

are not ordered to sustainable value-creating practices.

Thus, behind this general ordonomic program are two basic convictions:

1. morality and self-interest must not be pitted against one another, and

2. ordonomics can achieve a great deal of good on the level where people actually

act by focusing on the more system-level of rules that govern the level of action.

This should certainly not be misunderstood as a retreat from morality on the

level of action. This approach is concerned with morality, but wishes to avoid

non-effective moral platitudes when structural issues are largely to blame. In the

transplantation scandal case, physicians were faced with a system for conferring

donated organs that they believed was not adequately serving them or their patients.

For such dilemma situations, Pies recommends an ordonomic approach using a

diagram of orthogonal positioning (Pies et al. 2009, p. 380) (Fig. 1).

Fig. 1 Ordonomic approach



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The use of economists’ tools for ethics reflects an ancient philosophical respect

for the context of moral action. Intentionality and moral culpability are precisely the

subject of ethics and this culpability is mitigated in suboptimal situations of

conflicting interests. This seems to be the case for the physicians who interpreted

the situation as one calling for them to prioritize the well-being of their own patients

over the need to respect official protocols. This is the reasoning of Homann’s

consistency postulate: Expectations of interpersonal action must be consistent with

the level of rules (Homann and Lütge, pp. 30 f.).

The question remains, how is consistency achieved and why is it important? The

answer begins with a realization that people only feel themselves bound by such

rules that are in their interest to follow. This is a basic contractarian point. “The

credible collective commitment to a system of moral rules is achieved only when

those rules serve their self-interests” (ibid., p 51). In other words: “This is the

incentive-compatible condition for the implementability of normative validity”

(p. 51). The basic conviction is that morality is not an individual but a collective

enterprise (cf. ibid, p 51).

Once this point is established, particular situations can then be addressed with

the goal of reforming the level of rules. This approach thereby differentiates itself

from the classic medical-ethics approaches. The ordonomic approach also differentiates itself by integrating concerns for the common good vis-à-vis the utility

achieved with reform of rules or conditions.

Lütge describes the difference between the ordonomic approach and classical

individualistic ethics systems: Individualistic ethics are recognizable because “in

morally questionable situations, the immoral motives and preferences of the actors

receive the blame” (Lütge 2012, p. 94). In our examples, such approaches place the

burden of ethical action squarely and exclusively upon physicians, nurses or

patients. This tends also to be the case in terms of the ways that the media tend to

report ethics violations. The underlying structural causes do not receive necessary

scrutiny, blame, or most importantly, attention for reform.

A game-theory analysis of this situation substantiates the value of the ordonomic

approach for the case of the transplantation scandals. This analysis abstracts

essential elements of the case within the framework of a decision diagram.

Specifically, it attempts to distill the subjective perspective of the actors in the

ethically-conflicted situation, in this case the physician facing the choice to cheat

the system to obtain a transplanted organ for their own patient. The key insight of

this analysis is that a good rule system can align individual interests with more

generally beneficial practices. Conversely, this approach can highlight social traps

—unwinnable or fundamentally disordered structures that leave the actor without

good choices.

In the scenario described in the diagram below, two organ-transplantation

physicians have critically-ill patients needing organ transplants. Transplants are

awarded on the basis of points describing the patient’s health, age and other factors

which represent their worthiness to receive a scarce organ for transplantation. Both

physicians are aware of a common practice of cheating the system by deceitfully

raising a patient’s points. The diagram below shows simply that the



An Ordonomic Perspective in Medical Ethics



319



Doctor A (cheats) raises



Doctor A plays by the rules



points for patient A



for Patient A



Doctor B plays by the rules



Patient A gets organ/Patient B



Fair situation for both patients



for Patient B



cheated, minimal risk of

scandal for doctor A



Doctor B (cheats) raises



Scenario of cheating – no



Patient B gets organ/Patient A



points for Patient B



respect for rules, elevated risk



cheated, minimal risk of



for scandal for both doctors



scandal for Doctor A



Fig. 2 Organ-transplantation physicians follow the rules or cheat the rules



organ-transplantation physicians in this scenario have two options: Either follow the

rules, which leaves their patient without a chance for an organ, or cheat the rules,

bringing risk of scandal (Fig. 2).

A well-established and properly run organ-transplantation system would be best

for all the physicians and patients because physicians would not have such a high

incentive to cheat and, in the absence of scandals, patients would benefit by the

greater availability of donated organs. The key is reducing incentives to cheat and

raising rewards for compliance. Physicians will be much less likely to cheat a

system that they know is fair and thus it gives their patients a predictable chance to

obtain an organ. Patients too would be less likely to single out doctors with a

reputation for gaming the system if there was a broad confidence that physicians

were objective in assessing patients’ points for organ eligibility. And the wider

public would be more like to be organ donors if they respected the integrity of the

whole transplantation system. This would obviously reduce the scarcity of organs

and likewise reduce the incentive for cheating.

The case of the ALS patient presents a different structural problem. The limitation of the system is that it methodologically assumes that compliance with

general standards is adequate for providing nursing care. The reality of medical

illness is that every patient presents unique needs. It is conceivable that standards

could be generated for every disease at every stage of its development, though such

standards must be adapted to each patient’s personal medical history. And the

nurses must have the motivation in the first place to generate and follow such

standards. In the case of ALS patient, good nursing care would involve knowing the

patient’s specific needs presented by the disease’s rapid onset of nerve paralysis.

The patient had very recently lost the capacity to move her limbs and her lungs

were unable to effectively expel mucus. A caring nurse would have known this and

not only placed the call button in the patient’s hand, but also checked on her during

the night. Care is a simple but immensely valuable element of the nursing vocation,

but it is not simply reducible to basic standards. The ordonomic approach cannot

provide a recipe for “care”, but it can recognize its worth and understand the ways



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that structures either provide incentives for it, or mitigate against it, as will be

shown below.

The ordonomic structural analysis is especially applicable to the case study on

the German healthcare system. The following diagram abstracts the basic dynamic

on the interpersonal level. It is simplified by limiting the system to two actors,

patients A and B. Both understand that the healthcare system is:

(a)

(b)

(c)

(d)

(e)



built upon the principle of solidarity,

a social good available for public utilization,

responds to individuals’ healthcare claims on “first come—first served” basis,

treats patients discretely (no public knowledge of healthcare utilization), and

involves no (or minimal) economic penalty for the specific services provided.



The diagram shows that when all the actors in a health care system make

unlimited demands upon the system, all the actors suffer adverse consequences.

They receive less adequate care and pay more for it (Fig. 3).

The diagram shows that by remaining simply on the interpersonal level, a

healthcare system depending solely upon the restraint of those using its services will

be at the mercy of those utilizing its services. Moreover, the discrete or anonymous

nature of medical care implies that there is no public shame involved in its use. The

only limitation of such services is the moral restraint of those individuals—a restraint

that places such “moral” persons at significant disadvantage by those exercising no

such moral restraint. Using economic analysis of the context described above, we

could even say that actors are being rational in showing no restraint, given that there

is no economic or other penalty for such choices. Thus the moral norms and appeals

of classical medical ethics for restraint are of little help here.

A more proportionate and effective approach must consider more aspects of

medical-ethical action, including individual, institutional, systematic, legal and also

theoretical. The ordonomic approach attempts to do this by differentiating the

sphere of ethical action into three distinct levels. These levels are, using Pies’

terminology (2012, 25):



Patient B demands limitless



Patient B claims limited



healthcare resources



healthcare resources



Patient A demands limitless



System pushed to limits, thus



A is advantaged, B is



healthcare resources



healthcare is both rationed and



disadvantaged



more expensive

Patient A claims limited



B is advantaged, A is



Best overall situation: System



healthcare resources



disadvantaged



allocates adequate healthcare at

reasonable cost



Fig. 3 Actors in health care system make unlimited demands upon the system damaging

themselves



An Ordonomic Perspective in Medical Ethics



321



(1) Rule Following: the interpersonal level of individual ethical decision making

(2) Rule Setting: the meta-level of systems, institutions, and organizations

(3) Rule Finding: the meta-meta-level of ideas or theory.

This paper’s three case studies illustrate the quandary faced by medical ethics

primarily focused upon the rule-following level, i.e., the personal choices of individual actors (physicians, nurses, patients). The case studies show that rule violations cannot be effectively avoided by focusing primarily upon interpersonal action:

upon codes of ethics, on professional ethics oaths, on moral pleas, or upon compliance with guidelines. Thus, there is a need to examine and reform the rule-setting

process. And this means dealing with ethical problems within the systematic,

institutional and even political domains where rules are set.

Setting rules requires ethical understanding and it is clear that the classical

medical-ethical discourse traditions have a great deal to offer the rule-setting process. The ordonomic approach does not seek to displace these traditions, but to

optimally achieve their goals of fostering ethical action within social institutions.



4 Towards an Integrative Medical Ethics (IME)

An “Integrative Medical Ethics” integrates the ordonomic ethical approach with

classical medical ethics approaches. In doing so, it recognizes that there are

deep-seated disagreements among classical theories. Nevertheless, it pragmatically

seeks overlapping consensus on matters of potential mutual agreement and action.



4.1



Rule Finding: The Meta-Meta Level of Ideas



The fundamental purpose of medicine is fostering the health of persons. Physicians,

nurses and other people in medical professions take appropriate pride in their work

and the great benefit they provide society. An Integrative Medical Ethics

(IME) recognizes that their “self-interest” includes not only compensation and

material benefits, but also their sense of identity, self-worth, and the confidence that

they are providing a great help for their patients. Thus, the term “self-interest”

should be understood in a very broad sense here.

This self-evident point must be kept in mind, because it is ultimately the measure

of effective rules—even as we recognize that healthcare is only one aspect of the

“common good”, which includes many other social goods (such as safety, education, leisure, family life, and so on). The “good” of the common good is fostered by

moral ideals, principles and practices that order all of social life—medicine

included. Despite the fact that there are contemporary debates about some aspects

of moral ideals, principles and practices, those debates should not mask the broad



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social consensus on fundamental moral matters that undergirds social action. We do

not live in Hobbes’ state of nature.

IME sees the value of the ordonomic ethics as potentially compatible with many

classical ethical theories, despite the fact that medical ethics must understand the

limited value of specific ethical demands in situations where they will inevitably

contradict with the perceived self-interests of individual actors. Ordonomic ethics

therefore systematically considers the subjective interests of patients, physicians,

doctors, nurses, and other medical officials and care-givers. It also respects that

these self-interests involve much more than simply financial, status and personal

health matters.

With this background, the essential task of IME is to participate in structuring

the rules that will effectively lead to persons acting in ways consistent with moral

ideals. Stated differently, IME seeks to reform rules that incentivize persons to act

in ways that are contrary to moral norms and thereby socially destructive.

Rule-setting is more than just an exercise in efficiency, it is properly a scientific

endeavor focused upon right action, i.e., ethics. Included in this endeavor is the

search for the overlapping consensus necessary for effective rule-setting. This

search often demands more abstract theoretical discourse that ordonomics describes

as “rule-finding”. Rule-finding discourse is what classical ethical theories have

often taken to be the whole of ethics.

Effective rules require the basic consensus of all stakeholders. Human rights

represent important consensus principles, especially as they are articulated in the

Universal Declaration of Human Rights and in subsequent international developments of those rights with respect to specific populations at risk (minority groups,

refugees, women, disabled persons, and others). These rights are complemented and

undergirded by the principle of human dignity declaring the inestimable value of

every human person. Because humans have dignity, they must be considered as a

subject themselves—and not merely an instrument for some purpose, including the

common good. The dignity principle claims the fundamental equality of all human

beings, with an implied right to at least basic access to adequate healthcare. This is

the best possible safeguard for the right to life and to physical integrity.

These foundations are shared with most ethical systems, including utilitarian

medical ethics, when the greatest happiness of the greatest number is understood to

require the rule of respecting the dignity and rights of every person. Rights and

dignity need not be understood universally as based upon metaphysical principles

or deontological standards of pure rationality (Knoepffler and O’Malley 2010).

Pragmatic ordonomic reflection seeks rather consensus on the level of practice, and

it is no stretch for utilitarians and others to recognize the great good that rights and

dignity provide society.

The four-principled approach of Beauchamp and Childress is also potentially

within a broad consensus on the principles of rights and dignity, as well as with an

ordonomic approach to medical ethics. Rights and dignity find functional equivalences in the principles of patient autonomy, beneficence, non-malevolence and

justice. And ethical perspectives characterized by the Hippocratic Oath or Christian



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