International Library of Ethics, Law, and the New Medicine 70 Pedro Serna José-Antonio Seoane Editors Bioethical Decision Making and Argumentation International Library of Ethics, Law, and the New Medicine Volume 70 Series editors David N. Weisstub, University of Montreal Fac. Medicine Montreal, QC, Canada Dennis R. Cooley, North Dakota State University, History, Philosophy, and Religious Studies, Fargo, ND, USA The book series International Library of Ethics, Law and the New Medicine comprises volumes with an international and interdisciplinary focus. The aim of the Series is to publish books on foundational issues in (bio) ethics, law, international health care and medicine. The 28 volumes that have already appeared in this series address aspects of aging, mental health, AIDS, preventive medicine, bioethics and many other current topics. This Series was conceived against the background of increasing globalization and interdependency of the world’s cultures and govern- ments, with mutual infl uencing occurring throughout the world in all fi elds, most surely in health care and its delivery. By means of this Series we aim to contribute and cooperate to meet the challenge of our time: how to aim human technology to good human ends, how to deal with changed values in the areas of religion, society, culture and the self-defi nition of human persons, and how to formulate a new way of thinking, a new ethic. We welcome book proposals representing the broad interest of the interdisciplinary and international focus of the series. We especially welcome proposals that address aspects of ‘new medicine’, meaning advances in research and clinical health care, with an emphasis on those interventions and alterations that force us to re-examine foundational issues. More information about this series at h ttp://www.springer.com/series/6224 Pedro Serna (cid:129) José-Antonio Seoane Editors Bioethical Decision Making and Argumentation Editors Pedro Serna Universidad Internacional de La José-Antonio Seoane Rioja (UNIR) Research Group Philosophy, Constitution Logroño , Spain and Rationality School of Law Research Group Philosophy, Constitution U niversidade da Coruña and Rationality A Coruña , Spain Universidade da Coruña A Coruña , Spain ISSN 1567-8008 ISSN 2351-955X (electronic) International Library of Ethics, Law, and the New Medicine ISBN 978-3-319-43417-9 ISBN 978-3-319-43419-3 (eBook) DOI 10.1007/978-3-319-43419-3 Library of Congress Control Number: 2016953138 © Springer International Publishing Switzerland 2016 T his work is subject to copyright. 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Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. Printed on acid-free paper This Springer imprint is published by Springer Nature The registered company is Springer International Publishing AG Switzerland Foreword T he roots of B ioethical Decision-Making and Argumentation lie in a research proj- ect funded by the Spanish government1 and carried out by a group of Philosophy of Law lecturers and researchers with a long-standing interest in bioethics and in the theory and practice of argumentation, especially in legal contexts. The goals of this project were threefold: 1 . F irst, to provide a critical analysis of the prevailing paradigm in bioethical decision-m aking, namely, North American principlism, propounded by Beauchamp and Childress 2 . S econd, to provide a similar critical analysis of other proposals arising from the debate surrounding the above 3 . F inally, to put forward the fundamental lines of an alternative model combining substantive principles and procedural guidelines, robust enough not only to over- come the shortcomings of principlism and its alternatives but also to stand up to the criticisms usually levelled at ethics, regardless of whether they focus on moral contents or merely on discursive procedures T he initial hypothesis is that the principlist model of decision-making is open to improvement and replacement by a model combining substantive principles and procedural guidelines, the former consisting of a set of basic rights that are part of the Western cultural heritage and the latter of criteria relating to prudent discursive practical reasoning. Such a model makes it possible to conserve the more valuable elements of the principlist model whilst avoiding some of the pitfalls highlighted by its critics. The team of academics working on the project took as their starting point the close links between bioethics and law, not only in the historical or genetic sense, 1 Research project Principialismo y teorías de la argumentación en la toma de decisiones médicas (DER2010-17357), led by Professor Pedro Serna and funded by the Spanish Ministry of Science and Innovation. v vi Foreword which is hardly open to discussion, but also in a much deeper sense. Indeed, in modern Western societies, the goods at stake in the doctor-patient relationship are protected by law and usually at the highest possible level, that of the constitution. This in turn permits us to suppose that the principles and forms of argumentation developed in the fi eld of the law are able to throw light on the task of constructing a bioethical decision-making model, with particular reference to the clinical sphere, able to withstand the most pertinent criticisms made against principlism. Thus, the contemporary debate on principles and their application to individual cases, norma- tive systems theory, balancing theory and its practice and, more broadly, argumenta- tion theories together with the constitutional dogmatics of basic rights supplies useful elements with which to design a biomedical decision-making model contain- ing both substantive elements (human rights) and procedural ones (discursive argu- mentation and prudential models). *** Ever since it was fi rst formulated in the United States in the late 1970s, principlism has been the paradigm for biomedical ethics, particularly in the clinical fi eld. This, however, has not spared it from numerous critiques attacking its ambiguity and incompleteness and putting forward alternatives such as casuistry, virtue bioethics or the model based on so-called common morality. Moreover, a specifi c form of principlism has developed in Europe that proposes replacing the principles of non- malefi cence, benefi cence and justice with those of dignity, integrity and vulnerabil- ity, whilst retaining that of respect for autonomy. Some authors have proposed other modifi cations to principlism, such as the introduction of hierarchies governing the application of principles, whilst others go further, assuming many of the critiques as valid and proposing a more fl exible model that replaces the four principles with a decision-making process based on balancing values. One of the common characteristics of modern Western societies is that they are home to a variety of groups and individuals who hold different and partially incom- patible moral ideas (“comprehensive doctrines”, according to the expression coined by Rawls, 2 or “moral communities”, in Engelhardt’s words3 ) . As is well known, the existence of this radical pluralism poses some of the biggest challenges faced by the theory of justice and, more widely, by the law today. Bioethical prob- lems are no exception to this and indeed even constitute the fi eld in which the confl icts deriving from this irreducible pluralism are most sharply expressed, and thus the one in which the models used to channel and resolve them must prove their effectiveness most robustly. Similarly, just as in the medieval world it was incon- ceivable to think of ethics without the idea of God and salvation, in the modern world, it is impossible to conceive of models of social ethics that fail to take this pluralism into account. For some authors, Rawls amongst them, this implies a political rather than metaphysical idea of justice and social ethics in general. 2 Political Liberalism, Columbia University Press, New York, 1993. 3 The Foundations of Bioethics, 2nd ed., Oxford University Press, New York, 1996. Foreword vii Furthermore, bioethics is specifi cally destined to be the source of the paradigm of ethics in modern society, precisely because it deals with problems arising from scientifi c and technological progress, coming at a time when the theocentric world- view is fast losing currency.4 A specifi c feature of modern bioethics is that generally speaking the problems it poses arise not from a traditional deontological perspective, i.e. that of a doctor or health professional’s moral obligations, but from a relational standpoint, i.e. within the framework of the relationship between health professional and patient or user of health services, which are usually considered as public services in the social and democratic constitutional state that is generally accepted as the model in the societ- ies we are referring to. This obliges us to consider whether bioethics is really, as some insist, part of morality or ethics in the traditional sense or, on the contrary, whether the problems it deals with are inevitably legal ones, since the goods at stake in the relation referred to above (life, physical and moral integrity, health, personal autonomy, etc.) are recognised and protected by law in the whole of the Western world. I t therefore comes as no surprise that proposals for the “juridifi cation of bioeth- ics” have been made as a consequence of the above.5 Indeed, the origins of bioethics as a discipline cultivated by a professional and academic community are legal ones in the countries in which it arose: to cite only the cases of the United States and Canada, the legal system itself has encouraged, if not forced, this juridifi cation in the form of a judicialization that should be credited as having been the starting point for bioethics considered as an academic discipline.6 This, however, is not without its perverse effects or consequences; a case in point would be the way in which it has modifi ed the doctor-patient relationship, traditionally characterised by features of debatable value, such as paternalism, but also by others whose value is beyond dis- cussion, such as trust, and which are nowadays severely threatened, especially in Western societies. Juridifi cation, in the sense of judicialization, allows the great majority of bioethi- cal confl icts to be resolved a posteriori but at the same time fails to provide social and healthcare professionals with a decision-making model enabling them to decide their course of action within a time frame that is at best limited and at worst almost non-existent. This may be the reason behind the tendency to exacerbate the princi- ple of patient autonomy as the key governing factor in the clinical relationship, with the de facto consequence that it functions more as a defence mechanism or a means of offl oading responsibility on the part of health professionals than as an expression of respect for a patient’s autonomy or a manner of exercising informed consent. For 4 Cf. Drane, “ What is Bioethics? A History”, in Lolas and Agar (eds.), Interfaces Between Bioethics and the Empirical Social Sciences , Regional Program on Bioethics OPS/OMS Publication Series, Santiago de Chile, 2002, downloadable from http://www.paho.org/English/BIO/interfaces.pdf . 5 Atienza, “Juridifi car la bioética. Una propuesta metodológica”, Claves de razón práctica 61 (1996). 6 On the infl uence of the law on the shaping of bioethics, see Annas, Standard of Care. The Law of American Bioethics, New York, Oxford University Press, 1993. viii Foreword this reason, the most appropriate form of juridifi cation would appear to move in the direction of the contribution that the modern theory of law and legal argumentation can make as a reasoning tool in the decision-making process. T here are those who consider bioethics to be based on substantive principles, normally originating from comprehensive views of the world, mankind and human existence that are very often linked, either implicitly or explicitly, to religious out- looks on life. However, the prevailing paradigm in modern-day biomedical ethics is the one put forward by T.L. Beauchamp and J.F. Childress (henceforth Beauchamp and Childress) in P rinciples of Biomedical Ethics (1979), now considered a classic work in the fi eld and widely endorsed in both academic and professional circles. Nevertheless, and in spite of its widespread acceptance, the 1990s saw the appear- ance of intense debate and criticism of this model, causing its authors to modify their stance in subsequent editions, of which there are now seven, the most recent of which was published in 2013. Curiously enough, this debate has until now been circumscribed to the North American social and cultural stage, even though European authors are involved in it. B eauchamp and Childress’ proposal (henceforth principlism) is based on a set of ideas which clearly display the infl uence of John Rawls, an author whose work they cite profusely; they include the irreducible nature of the substantive moral concepts that co-exist in our societies and the numerous ethical and philosophical theories that currently abound, rendering any kind of bioethics based on material principles unworkable and making it necessary to base proposals for bioethical decision- making models on intermediate-level principles. 7 Although the content of these intermediate principles is substantive, they show a noticeable tendency to operate in a formal and procedural way. According to Beauchamp and Childress, the princi- ples in question are respect for autonomy, non-malefi cence, benefi cence and justice, and their model deals fundamentally with the decision-making process, leaving lit- tle room for what would have constituted the basic elements of a more traditional view of medical deontology, namely, the ethos of doctor-patient relations, on the one hand, and the virtues of health professionals, on the other. Although Beauchamp and Childress deal with both of these matters, they do so only marginally. T he principlist proposal has been widely scrutinised in the bioethical literature, being criticised by some authors whilst others defend it or suggest amendments. The critics who propose alternative models to principlism can be divided into two camps: those who approach the subject from the point of view of casuistry and those who do so from the standpoint of so-called common morality. Both schools of thought, however, generally coincide in pointing out the lack of functionality of the principlist model, attributing it to the fact that the principles listed above are by themselves insuffi cient to create a normative system endowed with unity, consis- tency and completeness (or fullness). 7 In the sense put forward by Wildes, “Principles, Rules, Duties, and Babel: Bioethics in the Face of Postmodernity ”, Journal of Medicine and Philosophy 25/3 (2000) and subsequently accepted by Beauchamp and Childress in the 5th edition of their classic work (2001), p. 407. Foreword ix Casuistry8 has its roots in both the theories of moral casuistry and the Anglo- North American legal tradition, based on precedent. True to its origins, casuistry makes no claim to construct a system and instead proposes a problem-solving method that is not without issues of its own, including those deriving from the con- stantly shifting scenario and the constant novelty that is a characteristic of ethical problems, linked to the ongoing progress of life sciences in general and biotechnol- ogy in particular. F or its part, so-called common morality9 holds that intermediate principles are unable to fulfi l the objectives for which they were created, namely, to take the place of substantive moral theories and act as guidelines for deciding on the morally cor- rect course of action. The authors who take this view stress principlism’s lack of unity and consistency and highlight its conceptual and epistemic gaps, precisely with regard to what exactly constitutes a principle and how to work with them. With this as their starting point and drawing the distinction between morality and moral theory, they propose a model based on the former in which public or commonly accepted morality becomes the source for bioethical criteria, since it is recognisable and acceptable to any serious moral agent. Beauchamp and Childress, together with some of their followers, have based their response to their critics on a strategy of eclectically integrating a selection of the proposals put forward as critiques of their theory. For example, in order to redress the lack of functionality and consistency, they have seen fi t to add two fur- ther elements to the principlist model: specifi cation and balancing. Specifi cation has mainly been dealt with by Richardson,1 0 whilst the authors who have developed the concept of balancing include, amongst others, DeMarco and Ford.1 1 Beauchamp, meanwhile, has answered his critics directly in a number of journals,1 2 even though some of the suggestions relating to balancing and specifi cation were added to the principlist model in the fi fth edition of P rinciples of Biomedical Ethics (2001). Curiously enough, it is the very lack of precision and consistency denounced by 8 C f., for example, Jonsen and Toulmin, T he Abuse of Casuistry, Berkeley, University of California Press, 1988; Arras, “Getting Down to Cases: The Revival of Casuistry in Bioethics”, Journal of Medicine and Philosophy 16 (1991); Wildes, “The Priesthood of Bioethics and the Return of Casuistry”, J ournal of Medicine and Philosophy 18/1 (1991); Strong, “Specifi ed Principlism: What Is It, and Does It Really Resolve Cases Better than Casuistry?”, Journal of Medicine and Philosophy 25/3 (2000); and Jonsen, “Strong on Specifi cation”, J ournal of Medicine and Philosophy 25/3 (2000). 9 Cf., for example, Clouser and Gert, “A Critique of Principlism”, Journal of Medicine and Philosophy 15 (1990); Green, Gert and Clouser, “The Method of Public Morality vs. the Method of Principlism”, Journal of Medicine and Philosophy 18 (1993). 10 Cf., for example, Richardson, “Specifying, Balancing, and Interpreting Bioethical Principles”, Journal of Medicine and Philosophy 25/3 (2000). 11 “ Balancing in Ethical Deliberation: Superior to Specifi cation and Casuistry”, J ournal of Medicine and Philosophy 31 (2006). 12 Cf. initially, Beauchamp, “Reply to Strong on Principlism and Casuistry”, Journal of Medicine and Philosophy 25/3 (2000); Beauchamp, “Methods and Principles in Biomedical Ethics”, Journal of Medical Ethics 29 (2003); and the 5th (2001), the 6th (2009) and the 7th (2013) editions of Beauchamp and Childress, Principles of Biomedical Ethics, Oxford University Press, New York.