Reasoned disagreement is a pervasive feature of public life, and the persistence of disagreement is sometimes troublesome, reflecting the need to make difficult decisions. Fogelin suggests that parties to a deep disagreement should abandon reason and switch to non-rational persuasion. But how are the parties to know when to make such a switch? I argue that Fogelin's analysis doesn't clearly address this question, and that disputes arising in areas like medical decision making are such that the parties to them have (...) reasons to act as if they can be rationally resolved even if they are deep. Fogelin's analysis is thus of limited value as regards the practical moral demand of addressing concrete moral dilemmas. (shrink)

The model of clinical ethics consultation (CEC) defended in the ASBH Core Competencies report has gained significant traction among scholars and healthcare providers. On this model, the aim of CEC is to facilitate deliberative reflection and thereby resolve conflicts and clarify value uncertainty by invoking and pursuing a process of consensus building. It is central to the model that the facilitated consensus falls within a range of allowable options, defined by societal values: prevailing legal requirements, widely endorsed organizational policies, and (...) professional standards of practice and codes of conduct. Moreover, the model stipulates that ethics consultants must refrain from giving substantive recommendations regarding how parties to a moral disagreement in the clinic should evaluate their options. We argue that this model of CEC is incomplete, because it wrongly assumes that what counts as the proper set of allowable options among which the parties are to deliberate will itself always be clearly discernible. We illustrate this problem with a recent case on which one of us consulted—a neonate born with trisomy 18 (T18). We try to show that law, policy, and standards of practice reveal no clear answer to the question posed by the case: namely, whether forgoing gastrostomy tube feedings for a baby with T18 is allowable. We suggest there may be other kinds of cases in which it may simply be unsettled whether a given choice falls within the set of allowable options within which consensus is to be facilitated. What should an ethicist do when confronting such unsettled cases? We agree with the facilitation model that an ethicist should remain neutral among the allowable options, when it is clear what the allowable options are. But, in unsettled cases, the role of a consultant should be expanded to include a process of moral inquiry into what the allowable options should be. We end by raising the issue of whether this means an ethicist should share his or her own conclusions or views about the allowability of a given clinical option. (shrink)

In this article I take up a central question posed by the article jointly authored with Bill Winslade in this issue of JCE: What should be the role of clinical ethics consultants (CECs) in (what we call) an unsettled case: that is, a situation in which the range of allowable choices, among which the parties to a bioethical disagreement must select, cannot be clearly or completely specified? I argue here that CECs should, in such cases, guide the parties by presenting (...) their own reasoned conclusions about what the scope of allowable choices should be taken to include. Since this position challenges the received view that CECs must not express their own moral positions or conclusions in their role as ethicists, I try to defend my view of the CEC’s role in unsettled cases against several objections. (shrink)

Volume 19, Issue 11, November 2019, Page 67-68.

_The Code of Ethics and Professional Responsibilities for Healthcare Ethics Consultants_ instructs clinical ethics consultants to preserve their professional integrity by “not engaging in activities that involve giving an ethical justification or stamp of approval to practices they believe are inconsistent with agreed-upon standards” (ASBH, 2014, p. 2). This instruction reflects a larger model of how to address value uncertainty and moral conflict in healthcare, and it brings up some intriguing and as yet unanswered questions—ones that the drafters of the (...) _Code_, and the profession more broadly, should seek to address in upcoming revisions. The objective of this article is to raise these questions as a way of urging greater clarification of the _Code’s_ overall approach to professional integrity, its meaning, and implications. (shrink)

In this paper I attempt to address what appears to be a novel theoretical and practical problem concerning physician-assisted suicide (PAS). This problem arises out of a newly created set of circumstances in which persons are hospitalized in jurisdictions where PAS, though now legally available to patients, remains morally contentious. When moral disagreements over PAS come to divide physicians, patients, and family members, it is quite likely they will today find their way to the hospital’s consulting ethicist, a member of (...) an emerging group of professionals charged with the responsibility (so we are told) of resolving moral conflict in the clinic. What can or should an ethics consultant do to fulfill this mandate in such circumstances? I argue that the now predominant conception of clinical ethics consultation is importantly deficient in that it provides no final guidance to ethicists on how they should respond in such cases. The ethicist may only recommend—or assist others to reach—solutions to moral disagreements falling within the limits of established norms. Since the normative landscape of PAS appears to be changing, whether it falls within these limits is unsettled. I conclude that the accepted goals of ethics consultation require a revised and expanded conception of the ethicist's role in cases involving PAS. I close by outlining what that revised understanding would look like and the further questions it raises. (shrink)

A curious and comparatively neglected element of death penalty jurisprudence in America is my target in this paper. That element concerns the circumstances under which severely mentally disabled persons, incarcerated on death row, may have their sentences carried out. Those circumstances are expressed in a part of the law which turns out to be indefensible. This legal doctrine—competence-for-execution —holds that a condemned, death-row inmate may not be killed if, at the time of his scheduled execution, he lacks an awareness of (...) his impending death or the reasons for it. I argue that the law of CFE should be abandoned, along with the notion that it is permissible to kill the deeply disturbed just so long as they meet some narrow test of readiness to die. By adopting CFE, the courts have been forced to give independent conceptual and moral significance to a standard for competence that simply cannot bear the weight placed upon it. To be executable, CFE requires that a condemned prisoner meet a standard demonstrating an awareness of certain facts about his death. Yet this standard both leads to confusing and counter-intuitive results and is unsupported either by the reasons advanced by the courts on its behalf or by any of the standard theoretical justifications of criminal punishment. If executing the profoundly psychotic or delusional is wrong the law needs a better account of the wrong done when prisoners like Ford are killed. I suggest wherein that wrong might be located. (shrink)

We argued in our joint article that the facilitated consensus model of clinical ethics consultation is incomplete because it does not address the problem of what we have called “unsettled cases.” Sabrina Derrington and April Dworetz, Mark Aulisio, and Al Jonsen have each usefully challenged our claims and conclusions. In this brief article we respond to some of their arguments.

Several philosophers, including most prominently Theodore Benditt, have recently urged that the discourse of rights, widely thought to be a central, if not foundational feature of moral and political thought, is in reality a mere “redundant” appendage---a discourse that holds no distinctive place in moral or legal reasoning owing to the fact that it is thoroughly derivative because collapsible into other forms of moral or legal language. In this paper I attempt to (1) flesh out this “Redundancy” Thesis (RT) and (...) (2) identify and criticize at least two general arguments that might be thought to give rise to it: the claims that rights reduce (respectively) to duties (the Correlativity Thesis) or to permissions (the Permissibility Thesis). I try to show how and why these arguments fail and why they do not therefore support RT. (shrink)

Several philosophers, including most prominently Theodore Benditt, have recently urged that the discourse of rights, widely thought to be a central, if not foundational feature of moral and political thought, is in reality a mere “redundant” appendage---a discourse that holds no distinctive place in moral or legal reasoning owing to the fact that it is thoroughly derivative because collapsible into other forms of moral or legal language. In this paper I attempt to (1) flesh out this “Redundancy” Thesis (RT) and (...) (2) identify and criticize at least two general arguments that might be thought to give rise to it: the claims that rights reduce (respectively) to duties (the Correlativity Thesis) or to permissions (the Permissibility Thesis). I try to show how and why these arguments fail and why they do not therefore support RT. (shrink)

PHILOSOPHICAL PROBLEMS IN THE LAW is the perfect introduction to the philosophy of law. This collection of articles and cases helps you consider philosophical problems associated with the law through examples, case studies, and decision scenarios. Case examples and recent decisions such as Boumediene v. Bush (rights of Guantanamo detainees) and Brown v. Entertainment Merchants Association (freedom of expression and violent video games) coupled with new readings help you see the real-world relevance of what you are learning.