Problems with Harm in Medicine

As to the more precise nature of harm and to the scope of harm-related duties, bioethics inherits some of the controversies of general ethical theory. A crucial question is to what extent there are objective criteria for identifying and evaluating harm. If such criteria could be found, this might, for example, justify a physician's overriding a patient's own "harmful" preferences. Or, such criteria could be adduced in surrogate decision making for noncommunicating patients, as well as in matters of allocative justice (where it becomes crucial to evaluate medical interventions in terms of their comparative tendencies to avoid or alleviate net harm).

The issue of determining criteria is linked to the objectivity/subjectivity debate concerning people's well-being and ability to live a good life (see Griffin), and the setbacks to these. With most experts agreeing that there is an irreducible plurality of harms, the subjectivist view takes harm to be a significant setback only to actual wants or desires, possibly after procedural safeguards have been met. Here, for instance, a patient's death due to intentional non-resuscitation would be harmful only if the patient, when informed and asked, would opt for treatment. In the objectivist view, harm is a significant setback also to interests that are want-independent, but related to ideals of a good life. Here, death due to non-resuscitation could be harmful to a patient, regardless of whether he or she wants it.

The fundamental distinction between "want regard" and "ideal regard" (as a difference between subjective versus objective concepts of interest) was introduced by Brian Barry in political philosophy. In that area, lack of autonomy in forming one's wants is less obviously a danger than it is in medicine, where patients can so easily be ill informed, manipulated, or otherwise incompetent when forming their preferences. Therefore, at least certain procedural safeguards— such as standards of informed consent—are not inconsistent with "want regard" in medicine. Other safeguards, like elevating standards for patient competence to a level commensurate with the expected harm that would result from acting in accordance with patient choice (e.g., Buchanan and Brock), arguably cross over into "ideal regard." In any case, there is room for hybrid positions between the extremes of pure want regard and ideal regard. Consider forcing a Jehovah's Witness to be transfused with blood. Justifying this by reference to the patient's presumed objective interest in the preservation of his life falls under ideal regard. Arguing that the patient would want the transfusion if she were not bound to her irrational belief system puts harm assessment by want regard under some ideal-regarding constraint.

A common argument in favor of taking harm as an objective concept stresses the broad consensus in what "rational persons desire to avoid for themselves" (Culver and Gert, p. 70). Reference to the obvious consensus about the desirability of avoiding disease, disability, pain, premature death, and suffering, presupposed in daily medical work, is familiar from the debate over concepts of disease (Culver and Gert). To concur on this point does not imply acknowledging universal standards for all sorts of harm. Rather, pain, disability, and premature death are seen as universal harms simply in being setbacks to very basic interests, the satisfaction ofwhich is instrumental to practically all conceptions of a good life. It would, of course, not come as a surprise to find this true for many kinds of harm, in contrast to mere lack of benefits.

Even more serious problems with defining medical harm hinge on the need to compare two instances of harm, such as those from alternative treatment courses or from alternative resource distributions. Such ranking judgments are needed on kinds of harm (for example, pain versus addiction; premature death versus disfigurement; disease versus a restricted lifestyle) and on how much, when, and for how long harm is to be accepted, and for what purpose. At least implicit comparative evaluations of risks of harm and benefit are involved in virtually any treatment decision or medical indication (Veatch). Here, more fundamental disagreement starts: Some authors emphasize the great variability in comparative harm assessment, pointing to its related-ness to the context of each patient's irreducibly personal or parochial conception of a good life (e.g., Engelhardt; Veatch). This position has nurtured so-called autonomy-centered bioethics, which considers the assessment of harms and benefits to be the patients' business only. In contrast to this position, other scholars want to keep at least some objective ground for evaluations: medical interventions should, according to them, be determined futile not by patients, but by professional standards whenever they appear to be disproportionately harmful and thus "not reasonable" (Brody); or these scholars see interpersonal variability in ranking harm— though it exists—as not predominant and therefore not ruling out a beneficence-centered bioethics.

Other fundamental problems relate to the legitimate scope and relative importance of the obligations to prevent or to remove harm. First, some such actions, although morally laudable, are not required of the agent because they pose undue burdens or risks for him. For example, a therapist need not risk his own death in treating a violent patient. But how far do these agent prerogatives go? And how are they determined and justified? Secondly, harm preventing or removing actions sometimes ought to give way to other overriding duties (e.g., the duty to remove still greater harm from another or to respect patient self-determination). However, there are many different views as to what counts as overriding duty. Between the two extremes—understanding nonmaleficence as the trivially indeterminate principle "avoid harm (whatever that is) unless it is outweighed" or having as many specified duties as there are different normative theories—attempts have been made to give a more specific meaning to nonmaleficence without leaving the middle ground of broader consensus.

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