Clinical Ethics

The Homeric Power of Advance Directives

By Charles Foster

[Image: Ulysses and the Sirens: John William Waterhouse, 1891: National Gallery of Victoria, Melbourne]

We shouldn’t underestimate Homer’s hold on us. Whether or not we’ve ever read him, he created many of our ruling memes.

I don’t think it’s fanciful (though it might be ambitious) to suggest that he, and the whole heroic ethos, are partly responsible for our uncritical adoption of a model of autonomy which doesn’t do justice to the sort of creatures we really are. That’s a big claim. I can’t justify it here. But one manifestation of that adoption is our exaggerated respect for advance directives – declarations made when one is capacitous about how one would like to be treated if incapacitous, and which are binding if incapacity supervenes if (in English law) the declaration is ‘valid and applicable.’ 1.

I suspect that some of this respect comes from the earliest and most colourful advance directive story ever: Odysseus and the Sirens. Continue reading

Three Observations about Justifying AI

Written by:  Anantharaman Muralidharan, G Owen Schaefer, Julian Savulescu
Cross-posted with the Journal of Medical Ethics blog

Consider the following kind of medical AI. It consists of 2 parts. The first part consists of a core deep machine learning algorithm. These blackbox algorithms may be more accurate than human judgment or interpretable algorithms, but are notoriously opaque in terms of telling us on what basis the decision was made. The second part consists of an algorithm that generates a post-hoc medical justification for the core algorithm. Algorithms like this are already available for visual classification. When the primary algorithm identifies a given bird as a Western Grebe, the secondary algorithm provides a justification for this decision: “because the bird has a long white neck, pointy yellow beak and red eyes”. The justification goes beyond just a description of the provided image or a definition of the bird in question, and is able to provide a justification that links the information provided in the image to the features that distinguish the bird. The justification is also sufficiently fine grained as to account for why the bird in the picture is not a similar bird like the Laysan Albatross. It is not hard to imagine that such an algorithm would soon be available for medical decisions if not already so. Let us call this type of AI “justifying AI” to distinguish it from algorithms which try, to some degree or other, to wear their inner workings on their sleeves.

Possibly, it might turn out that the medical justification given by the justifying AI sounds like pure nonsense. Rich Caruana et al present a  case whereby asthmatics were deemed less at risk of dying by pneumonia. As a result, it prescribed less aggressive treatments for asthmatics who contracted pneumonia. The key mistake the primary algorithm made was that it failed to account for the fact that asthmatics who contracted pneumonia had better outcomes only because they tended to receive more aggressive treatment in the first place. Even though the algorithm was more accurate on average, it was systematically mistaken about one subgroup. When incidents like these occur, one option here is to disregard the primary AI’s recommendation. The rationale here is that we could hope to do better than by relying on the blackbox alone by intervening in cases where the blackbox gives an implausible recommendation/prediction. The aim of having justifying AI is to make it easier to identify when the primary AI is misfiring. After all, we can expect trained physicians to recognise a good medical justification when they see one and likewise recognise bad justifications. The thought here is that the secondary algorithm generating a bad justification is good evidence that the primary AI has misfired.

The worry here is that our existing medical knowledge is notoriously incomplete in places. It is to be expected that there will be cases where the optimal decision vis a vis patient welfare does not have a plausible medical justification at least based on our current medical knowledge. For instance, Lithium is used as a mood stabilizer but the reason why this works is poorly understood. This means that ignoring the blackbox whenever a plausible justification in terms of our current medical knowledge is unavailable will tend to lead to less optimal decisions. Below are three observations that we might make about this type of justifying AI.

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Cognitive snobbery: The Unacceptable Bias in Favour of the Conscious

There are many corrosive forms of discrimination. But one of the most dangerous is the bias in favour of consciousness, and the consequent denigration of the unconscious.

We see it everywhere. It’s not surprising. For when we’re unreflective – which is most of the time – we tend to suppose that we are our conscious selves, and that the unconscious is a lower, cruder part of us; a seething atavistic sea full of monsters, from which we have mercifully crawled, making our way ultimately to the sunlit uplands of the neocortex, there to gaze gratefully and dismissively back at what we once were.  It’s a picture encoded in our self-congratulatory language: ‘Higher cognitive function’; ‘She’s not to be blamed: she wasn’t fully conscious of the consequences.’: ‘In the Enlightenment we struck off the shackles of superstition and freed our minds to roam.’ Continue reading

Philosophical Fiddling While the World Burns

By Charles Foster

An unprecedented editorial has just appeared in many health journals across the world. It relates to climate change.

The authors say that they are ‘united in recognising that only fundamental and equitable changes to societies will reverse our current trajectory.’

Climate change, they agree, is the major threat to public health. Here is an excerpt: there will be nothing surprising here:

‘The risks to health of increases above 1.5°C are now well established. Indeed, no temperature rise is “safe.” In the past 20 years, heat related mortality among people aged over 65 has increased by more than 50%.Hi gher temperatures have brought increased dehydration and renal function loss, dermatological malignancies, tropical infections, adverse mental health outcomes, pregnancy complications, allergies, and cardiovascular and pulmonary morbidity and mortality. Harms disproportionately affect the most vulnerable, including children, older populations, ethnic minorities, poorer communities, and those with underlying health problems.’ Continue reading

Is a Publication Boycott of Chinese Science a Justifiable Response to Human Rights Violations Perpetrated by Chinese Doctors and Scientists?

By Doug McConnell

Recently the editor-in-chief of the Annals of Human Genetics, Prof David Curtis, resigned from his position, in part, because the journal’s publisher, Wiley, refused to publish a letter he co-authored with Thomas Schulze, Yves Moreau, and Thomas Wenzel. In that letter, they argue in favour of a boycott on Chinese medical and scientific publications as a response to the serious human rights violations happening in China. Several other leading journals, the Lancet, the BMJ and JAMA have also refused to publish the letter claiming that a boycott against China would be unfair and counterproductive.

This raises two separate ethical issues: 1. Should journals refuse to publish a letter arguing in favour of a boycott on Chinese medical and scientific publications? 2. Should journals actually establish a boycott on Chinese medical and scientific publications? Continue reading

‘Waiver or Understanding? A Dilemma for Autonomists about Informed Consent’

by Roger Crisp

At a recent New St Cross Ethics seminar, Gopal Sreenivasan, Crown University Distinguished Professor in Ethics at Duke University and currently visitor at Corpus Christi College and the Oxford Uehiro Centre, gave a fascinating lecture on whether valid informed consent requires that the consenter have understood the relevant information about what they are being asked to consent to. Gopal argued that it doesn’t. Continue reading

Phobias, Paternalism and the Prevention of Home Birth

By Dominic Wilkinson,

Cross post from the Open Justice Court of Protection blog

In a case in the Court of Protection last week, a judge authorised the use of force, if necessary, to ensure that a young woman gives birth in hospital rather than at home.

The woman (call her ‘P’) has severe agoraphobia, and has barely left her home in four years. Her doctors believe that it would be best for her to deliver her baby in hospital. But P has an overwhelming fear of leaving her home and cannot agree to this. Their particular concern is that P might develop a serious complication during her home birth, need emergency transport to hospital, but be unwilling or unable to agree to this because of the severity of her phobia.

At the conclusion of a three-day hearing, Mr Justice Holman declared that P lacked capacity to make the relevant decisions and ordered that it was lawful and in her best interests for medical staff to transfer her to hospital a few days before her estimated due date, and for medical professionals to offer her a choice of induction of labour or Caesarean Section in hospital.  He also gave permission for the use of restraint, if necessary, in the event that she refuses to go to hospital voluntarily.

On the face of it, this looks like an extremely concerning infringement of a patient’s autonomy – a view that has been expressed by members of the public responding to media reports (e.g. see the blog post here).   We normally think that adults should be free to make decisions about their medical care, including the freedom to refuse treatments that doctors are recommending. Decisions about place of birth and mode of birth are deeply personal decisions that can be hugely important for many women. For that reason, doctors and courts should be extremely loathe to infringe upon them.

Is it justified in this case, then, to physically restrain P and treat her against her wishes? In particular, is it justified to do this pre-emptively, before a complication develops? Continue reading

Is Life-Sustaining Treatment Being Lawfully Withdrawn From Patients In Prolonged Disorders Of Consciousness? Nobody Seems To Know

By Charles Foster

From the time of the decision of the House of Lords in Airedale NHS Trust v Bland (1993) until the decision of the Supreme Court in An NHS Trust v Y (2018) (which I will refer to here as ‘Y”) it had been understood that the withdrawal of life-sustaining treatment (typically clinically assisted nutrition and hydration – ‘CANH’) from patients in a vegetative state should be endorsed by the court. Over the years, this practice had been extended to cover such withdrawals in Minimally Conscious States too.

In Y, the Supreme Court held that there was no requirement for court review or endorsement. Why? Continue reading

Ethics Doesn’t Rule, OK?

By Charles Foster

Ethics and law are different. Or they should be.

Law has the power to coerce. That is a frightening power. There should be as little law as possible. But there should be more ethics than there is.

The boundary between the two domains is not absolute. Clinicians are probably more frightened of being struck off by the General Medical Council (GMC) (after an adjudication on their ethics by the Medical Practitioners’ Tribunal Service) than they are about an order by a civil court that compels their insurers to pay damages for clinical negligence. The exercise of the GMC’s statutory powers can be draconian: the existence of those powers, and the associated sanctions, is certainly coercive.

But although the boundary is sometimes blurred, it is still real. It is the job of the law to keep it from becoming dangerously permeable. In a recent case the law was caught napping. Continue reading

Consent Without Alternatives

Written by Ben Davies and Joshua Parker

“COVID-19: Do not resuscitate orders might have been put in place without consent, watchdog says”. This recent headline followed an investigation by the Care Quality Commission into Do Not Attempt Cardio-Pulmonary Resuscitation (DNACPR) decisions early in the pandemic. In a recent post, Dominic Wilkinson highlights two misconceptions in the coverage of this report, one of which is the ‘consent misconception’.

Dominic’s view is that “there is no ethical requirement…to seek the agreement of patients not to offer or provide a treatment” which a medical professional judges inappropriate. Of course, his position is not that consultation and discussion around CPR is inappropriate, only that consent is not necessary. This is the standard view on consent in this context and, due in part to the Tracey judgment, reflects doctors’ practice. Thus, an important distinction emerges between consenting to the withholding of some treatment, and discussion of that decision. Doctors may be ethically required to discuss a decision without also having an obligation to seek the patient’s consent. The absence of consent, then, does not signal that the DNACPR was unethical, whereas a failure to consult probably will.

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