Medical Ethics and Personal vs. Public Conscience: a Malaysian context

Medical Ethics and Personal vs. Public Conscience: a Malaysian context

By Dr David KL Quek, President, Malaysian Medical Association

 [published recently:

Quek DKL. Medical Ethics and Personal vs. Public Conscience: a Malaysian Context. 

World Med J. 2011; 57(1):2-4.]

Some time ago, New York Times columnist Professor Stanley Fish, (NY Times 12 April 2009)[i] wrote about “Conscience vs. Conscience”, where he discussed the conundrum about how people in general and physicians in particular, under different circumstances should or shouldn’t abide by their own conscience.

The contending issue was that physicians should not refuse treatment or procedures based on their own personal moral or religious grounds. Professor Fish argued that there is such a thing as a collective “public conscience” which should supersede that of one’s personal conscience and value systems, no matter how entrenched these may have been.

During the Bush administration, the culpable clause, called the Provider Refusal Rule, allows health care providers to refuse to participate in procedures they find objectionable for moral or religious reasons. The main bone of contention was of course regarding freedom to choose abortion, pro-choice, or conversely, pro-life.

In Fish’s article, he underscored an earlier statement by Mike Leavitt, Bush’s Secretary of Health and Human Services, who had said that, “Doctors and other health providers should not be forced to choose between good professional standing and violating their conscience.” The direction of the Bush doctrine was of course to urge the conservative right against unfettered abortion on demand, which continues to divide the American people.

Professor Fish reviewed the etymology of “conscience” as ascribed to English philosopher Thomas Hobbes. Here one of the earliest definitions of conscience, referred to those occasions “when two or more men know of one and the same fact . . . which is as much to know it together,” and where, violation of conscience meant that knowing together, men prefer their “secret thoughts” to what has been publicly established.

Fish acknowledged that Hobbes understood that many consider conscience to be the name of the private arbiter of right and wrong. But Hobbes regards this as a corrupted usage invented by those who wished to elevate “their own . . . opinions” to the status of reliable knowledge and try to do so by giving “their opinions . . . that reverenced name of Conscience.”

Hobbes’s main argument is that if one can prefer one’s own internal judgments to the judgments of authorized external bodies (legislatures, courts, professional associations), the result will be the undermining of public order and the substitution of personal whim for general decorums: “. . . because the Law is the public Conscience . . . in such diversity as there is of private Consciences, which are but private opinions, the Commonwealth must needs be distracted, and no man dare to obey the Sovereign Power farther than it shall seem good in his own eyes.”

Following his article, Fish was roundly criticized for being half-right in his interpretation of conflicting conscience, but intellectual disagreement continues to divide mostly implacable and partisan ethicists. Nancy Berlinger in an ensuing Hastings Center Report[ii] has this to say: ‘Stanley Fish… recognizes that defining “conscience” more loosely – as “moral intuition,” or those “secret thoughts”…  does not solve our contemporary problem. When medical professionals believe that they are being forced to do harm or are prevented from doing good, the ethical solution may not always be the conscience-clause remedy of stepping away from troubling situations.’

Where does this leave the medical professional when it comes to ethical underpinnings of doing what’s right or wrong? Would our personal conscience suffice? Or, should we subsume to the greater wisdom of our collective professional voice (e.g. national medical associations, professional bodies, world medical association, medical councils, etc.), which through the long arduous passage of time and historical experiences, would have honed a burnished if straitjacketed version of what’s generally accepted as “ethically and publicly correct”?

Be that as it may, does this mean that the medical professional would then have no need to rely on his own personal conscience and moral standing? No, but surely if these are diametrically opposed to the greater wisdom of peers, then one has to justify one’s personal convictions all the more!

Again, this cannot be taken out of context of the prevailing society and sociopolitical situation. This becomes extremely relevant in societies such as in Malaysia and other quasi-democratic nations, where governments tend to be paternalistic, even arrogant or worse.[iii] The instruments and institutions of power are often abused to forcefully interpret laws or even medical findings in a slanted manner, which severely test the mettle and autonomy of physicians under their charge.

In certain authoritative or political circumstances, the medical professional is called upon to exercise extreme judgement calls, which can be sorely tested by either threats from or fears of authority (e.g. police, superior officers, military, even political powers) or worse, direct or indirect ‘rewards’ for passive compliance!

The 1^st century AD Hindu code, Charaka Samhita[iv], exhorts doctors to “endeavour for the relief of patients with all thy heart and soul; thou shall not desert or injure thy patient for the sake of thy life or living”, which have been restated in many codes of professional conduct including our own. Yet, these are often pushed to the backburner, when conflicts of duties, arise.

Recently in Malaysia, public spats on medical testimonials and reports have arguably cast long shadows as to the so-called impartiality, ethics or professionalism of some of our medical colleagues.[v] Forensic pathologists are facing some intense scrutiny of late, due to questionable lapses, incoherent practices and perhaps even perceived selective memories, and slipshod standards of duty of care.[vi]

Other physicians making medical reports are also put under the microscope for their perceived biasness or slant of their reports, one way or the other, until the truthfulness of one vs. the other, appears difficult or impossible to discover![vii]

Such ambiguous if disingenuous medical findings or reports cast a dismal if disappointing view on our profession.[viii] While some of these appear coerced, some might conceivably be simply venal, just as if medical veracity can be made to sway according to the purchasing power of the most damning and powerful!

Physicians must be reminded that for that patient (deceased or detainee) under his/her charge, there is frequently no other person whose interests can be represented, except from the physician’s unbiased assessment…

Sadly some of these dubious practices place us at odds with the perceived wisdom and conventions of some greater external collective conscience. These conventions although seemingly unenforceable, have long been articulated by world authorities such as the World Medical Association and even the United Nations Human Rights Commission.

The UN High Commission for Human Rights Istanbul Protocol[ix] is categorical in stating that:

“Dilemmas arising from these dual obligations are particularly acute for health professionals working with the police, military, other security services or in the prison system. The interests of their employer and their non-medical colleagues may be in conflict with the best interests of the detainee patients. Such health professionals with dual obligations, owe a primary duty to the patient to promote that person’s best interests and a general duty to society to ensure that justice is done and violations of human rights prevented. Whatever the circumstances of their employment, all health professionals owe a fundamental duty to care for the people they are asked to examine or treat. They cannot be obliged by contractual or other considerations to compromise their professional independence. They must make an unbiased assessment of the patient’s health interests and act accordingly.”

Unfortunately, this protection by convention appears so remote to the lonely physician standing in the grips of perceived authoritarian powers, whose influence are imaginably all-powerful!

Seen in this context, society must exert its moral imperative of the public good on a universal basis, and demand the application of such universal conventions, to protect the hapless physician at the centre of such political or partisan storms, lest such pressure lead to further erosion of already debilitated institutions.

Similarly, the onus is on members of the medical profession to remain steadfast to the doctrine of public conscience and universal principles rather than personal ones, when carrying out our duties, including when making judgement or pronouncement on some of our possibly errant colleagues. Sectarian perceptions whether religious or political, clearly must take a back seat, and should not be allowed to colour our thinking or decision making.

Personal bias or experience or even conviction should yield to the more nuanced, perhaps more balanced decision based on strict interpretations of statutes, codes of professional conduct, and perhaps legal precedents.

The US Supreme Court[x] has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws — laws not promulgated with the intention of affronting anyone’s conscience — the violations will not be allowed and will certainly not be celebrated; because: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Therefore, we must be quite clear to dissect conscionably our dilemma of which is the superior right.

Similarly, in the context of political or authoritarian pressure, especially where democratic institutions are weak, and where risk to the individual may seem likely, it behooves the professional to be reminded about the World Medical Association’s Declaration of Geneva[xi], which is a modern restatement of the Hippocratic values, as well as to be cognizant of UN Conventions such as the Istanbul Protocol. Doctors are reminded that the health of their patients is their primary consideration and that we must devote themselves to the service of humanity with conscience and dignity.

We must learn from and adhere to our historical memories, which are collectively acknowledged as “correct” and first and foremost for our patients’ interests. Certainly, in this context, every professional should not let religious, political or sectarian reasons from influencing our decision-making.

But does this mean that these are fixtures which cannot or should not be modified with the passage of time and perhaps move in tandem with the “fashion” or faddism of current perceptions or even societal movement or direction?

Clearly this will depend on the circumstances and the human aspects of all patient-physician interactions. Although ethics these days are not as immovable or as permanently cast in stone, societal views do evolve. Like sometimes shifting tides, ethical perceptions may very gradually ebb and flow, but often with the anchored moorings and underpinnings of moral public good and greater and greater foundation of universal values.

So changes may occur, but again these must be based on contextual interpretation which should be carefully justified so that the newer interpretation can withstand scrutiny and/or rigorous re-examination, by an increasingly knowledgeable public and also by even more discerning generations of similar professionals.

Thus, personal conscience and public conscience must be employed together to shape our moral compass when we are dealing with ethics and medical professionalism. It helps when we all undertake to reexamine our own values and learn more and more as to how these ethical dilemmas and questions are evolving in this day and age. We must not be cowed into a mindset of convenient way out or of callous expediency.[xii]

References:

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[i] Stanley Fish. Opinionator. Conscience vs. Conscience. The New York Times. The Opinion pages. 12 April, 2009. http://opinionator.blogs.nytimes.com/2009/04/12/conscience-vs-conscience/ (Accessed 26 Jan 2011)

[ii] Nancy Berlinger. Conscience: We’re Not Donne Yet. Bioethics Forum. The Hastings Center Report. 07 May 2009. http://www.thehastingscenter.org/Bioethicsforum/Post.aspx?id=3404&blogid=140 (Accessed 26 Jan 2011)

[iii] David KL Quek. Unbiased treatment for all. Malaysiakini, March 23, 2010. http://myhealth-matters.blogspot.com/search?q=ethics+conscience (Accessed 26 Jan 2011)

[iv] Roy, P. Gupta, H. Charaka Samhita . A scientific synopsis. 2nd Ed., Indian National Science Academy, New Delhi, India, 1980.

[v] David KL Quek. Kugan’s Autopsy Findings & Inquiry: Unsettling Questions remain Malaysiakini 8 April 2009. http://myhealth-matters.blogspot.com/2009/04/kugans-autopsy-findings-inquiry.html (Accessed 26 Jan 2011)

[vi] David KL Quek. Ethics, medical confidentiality vs. political pressures. Malaysiakini July 31, 2008. http://dq-liberte.blogspot.com/2008/07/ethics-medical-confidentiality-vs.html (Accessed 26 Jan 2011)

[vii] Debra Chong. Teoh family disappointed with British pathologist’s report . Malaysian Insider 26 April 2010. http://www.themalaysianinsider.com/index.php/malaysia/61368-teoh-family-disappointed-with-british-pathologists-report (Accessed 26 January 2011)

[viii] David KL Quek. Physicians must be more vigilant. Malaysiakini 11 March 2009. http://myhealth-matters.blogspot.com/2009/03/doctors-must-be-vigilant-when-dealing.html (accessed 26 Jan 2011)

[ix] Istanbul Protocol. Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS. United Nations, Geneva, 1999. 
[x] Scalia, J., Opinion of the Court. SUPREME COURT OF THE UNITED STATES; 494 U.S. 872. Employment Division, Department of Human Resources of Oregon v. Smith. CERTIORARI TO THE SUPREME COURT OF OREGON No. 88-1213 Argued: Nov. 6, 1989; Decided: April 17, 1990

[xi] WMA Declaration of Geneva. Revised 173rd Council Session, Divonne-les-Bains, France, May 2006. http://www.wma.net/en/30publications/10policies/g1/index.html (Accessed 26 Jan 2011)

[xii] David KL Quek. A New Malaysia still possible. Malaysiakini, March 9, 2010. http://dq-liberte.blogspot.com/2010/03/malaysiakini-new-malaysia-still.html (accessed 26 Jan 2011)