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Charles Foster’s Posts

Not all philosophers are equal

Not all ethical issues are equally important. Many ethicists spend their professional lives performing in sideshows.

However entertaining the sideshow, sideshow performers do not deserve the same recognition or remuneration as those performing on our philosophical Broadways.

What really matters now is not the nuance of our approach to mitochondrial manipulation for glycogen storage diseases, or yet another set of footnotes to footnotes to footnotes in the debate about the naturalistic fallacy. It is: (a) Whether or not we should be allowed to destroy our planet (and if not, how to stop it happening); and (b) Whether or not it is fine to allow 20,000 children in the developing world to die daily of hunger and entirely avoidable disease  (and if not, how to stop it happening). My concern in this post is mainly with (a). A habitable planet is a prerequisite for all the rest of our ethical cogitation. If we can’t live here at all, it’s pointless trying to draft the small print of living.Read More »Not all philosophers are equal

Killing by praying

Dale and Leilani Neumann are Pentecostal Christians. Their 11 year old daughter, Kara, fell ill. In fact she had (undiagnosed) diabetes. Her parents refused to obtain medical help. Instead they prayed.

‘Kara’s father testified that death was never on their minds.  He testified that he knew Kara was sick but was “never to the alarm of death,” and even after she died, her father thought that Jesus would bring Kara back from the dead, as he did with Lazarus.

The parents and friends testified that the parents took tangible steps to help Kara.  The mother tried to feed Kara soup and water with a syringe, but the liquid just dribbled out of Kara’s mouth.  The father tried to sit Kara up, but she was unable to hold herself up.  At some point, Kara involuntarily urinated on herself while lying unresponsive on the couch, so they carried her upstairs and gave her a quick sponge bath while she lay on the bathroom floor.

At one point, Kara’s maternal grandfather suggested by telephone that they give Kara Pedialyte, a nutritional supplement, in order to maintain the nutrients in her body.  The mother responded that giving Kara Pedialyte would be taking away the glory from God.  Kara’s mother had told another visiting friend that she believed that Kara was under “spiritual attack.”

Friends Althea and Randall Wormgoor testified that they arrived at the Neumanns’ home on Sunday at approximately 1:30 p.m.  The Wormgoors saw that Kara was extremely ill and nonresponsive.  Her eyes were partially open but they believed she needed immediate medical attention.  Randall Wormgoor pulled Kara’s father aside and told him that if it was his daughter, he would take her to the hospital.  The father responded that the idea had crossed his mind, and he had suggested it to his wife, but she believed Kara’s illness was a test of faith for their family and that the Lord would heal Kara….’ [1]

But the Lord did not. Or at least not physically. Kara died from diabetic ketoacidosis. The evidence was that, with conventional medical care, she would have lived. Read More »Killing by praying

Casinos should say: ‘Enough. Go home.’

Over about 14 months, Harry Kakavas lost $20.5 million in a casino in Melbourne. It could have been worse. He put about $1.5 billion on the table. He sued the casino. It knew or should have known, he said, that he was a pathological gambler. It shouldn’t have continued to take his money. It should have protected him from himself. Nonsense, said the High Court of Australia.

Here’s why:

‘Even if, contrary to the findings of the primary judge, the appellant did suffer from a psychological impairment, the issue here is whether, in all the circumstances of the relationship between the appellant and Crown, it was sufficiently evident to Crown that the appellant was so beset by that difficulty that he was unable to make worthwhile decisions in his own interests while gambling at Crown’s casino. On the findings of fact made by the primary judge as to the course of dealings between the parties, the appellant did not show that his gambling losses were the product of the exploitation of a disability, special to the appellant, which was evident to Crown.

Equitable intervention to deprive a party of the benefit of its bargain on the basis that it was procured by unfair exploitation of the weakness of the other party requires proof of a predatory state of mind. Heedlessness of, or indifference to, the best interests of the other party is not sufficient for this purpose. The principle is not engaged by mere inadvertence, or even indifference, to the circumstances of the other party to an arm’s length commercial transaction. Inadvertence, or indifference, falls short of the victimisation or exploitation with which the principle is concerned.‘ (paras 160-161 of the judgment).

So it all turned on findings of fact (it wasn’t ‘sufficiently evident’ that his losses were the result of a disability, and if they were, they weren’t the product of a disability ‘special to the appellant.’)

That last criterion is interesting. The court seems to be implying that everyone who puts themselves in the position of losing large amounts of money in a casino is necessarily not quite right in the head. To establish liability you need a degree of vulnerability over and above that possessed by the ordinary punter. By accepting the trial judge’s finding that Kakavas did not suffer from a ‘psychological impairment’, the court was presumably saying: ‘Right: so Kakavas is weak and easily exploited: but that’s true of everyone who walks through the door, buys some chips and sits down at the table. That sort of weakness is within the general bell curve of human flabbiness. But Kakavas wasn’t particularly, dramatically, visibly weak.’Read More »Casinos should say: ‘Enough. Go home.’

Non-consensual testing after needlestick injury: A legal and ethical drama

By Charles Foster and Jonathan Herring

Scene 1: An Intensive Care Unit

Like many patients in ICU, X is incapacitous. He also needs a lot of care. Much of that care involves needles. Late at night, tired and harassed, Nurse Y is trying to give X an intravenous injection. As happens very commonly, she sticks herself with the needle.

Nurse Y is worried sick. Perhaps she will catch HIV, hepatitis, or some other serious blood-borne infection? She goes tearfully to the Consultant in charge.

‘Don’t worry’, he says. ‘We’ll start you on the regular post-exposure prophylaxis. But to be even safer, we’ll test some of X’s blood for the common infections. I doubt he’ll be positive, but if he is, we’ll start you straight away on the necessary treatment. We needn’t take any more blood: there are plenty of samples already available.’

A sample of blood is submitted for analysis. Read More »Non-consensual testing after needlestick injury: A legal and ethical drama

What happens when you die

I have just watched someone die. Just one person. But a whole ecosystem has been destroyed. Everyone’s roots wind round everyone else’s. Rip up one person, and everyone else is compromised, whether they know it or not. This is true, too, for everything that is done to anyone. Death just points up, unavoidably, what is always the case.

This is trite. But it finds little place in bioethical or medico-legal talk. There, a human is a discrete bio-economic unit, and there’s a convention that one can speak meaningfully about its elimination without real reference to other units.

In some medico-legal contexts this is perhaps inevitable. There have to be some limits on doctors’ liability. Hence some notion of the doctor-patient relationship is probably inescapable, and the notion requires an artificially atomistic model of a patient.

But ethics can and should do better.Read More »What happens when you die

Facebook: You are your ‘Likes’

By Charles Foster

When you click ‘Like’ on Facebook, you’re giving away a lot more than you might think. Your ‘Likes’ can be assembled by an algorithm into a terrifyingly accurate portrait.

Here are the chances of an accurate prediction: Single v in a relationship: 67%; Parents still together when you were 21: 60%; Cigarette smoking: 73%; Alcohol drinking: 70%; Drug-using: 65%; Caucasian v African American: 95%; Christianity v Islam: 82%; Democrat v Republican: 85%; Male homosexuality: 88%; Female homosexuality: 75%; Gender: 93%.Read More »Facebook: You are your ‘Likes’

Too long in gestating: an overdue inquiry into the Abortion Act

Whatever your view of abortion, there are too many abortions, and too many of them are too late. Even abortion’s fiercest advocates don’t pretend that it’s a Good Thing – just the lesser of two evils.

In 2010 there were 189,574 abortions in England and Wales – an 8% increase in a decade. The tightly policed regime envisaged in 1967, when the Act became law, hasn’t existed for ages, if indeed it ever did. There is abortion on demand, whatever the statute book says.

1967 was a long time ago. There have been many medical advances and societal changes since then. It’s time to take stock of the Act.

That’s what a recently announced cross-party commission, to be chaired by Fiona Bruce MP, will do.

It will focus, rightly, on two issues: medical advances and attitudes to discrimination.Read More »Too long in gestating: an overdue inquiry into the Abortion Act

Abortion and the cognitively impaired mother

It will be interesting to watch the reception of a recent Court of Protection case, as yet unreported, in which a woman with profound learning difficulties was found to have capacity to decide not to terminate her pregnancy.

As so often, the case decided nothing new. But it is a timely reminder of the trite but often overlooked principle that capacity is not an all or nothing thing. The question: ‘Does she have capacity?’ is always dangerously incomplete. The correct question is always ‘Does she have capacity to decide X?’

There was no doubt that she did not have capacity to manage many aspects of her affairs. She was in the bottom 1% of the population so far as intellectual function was concerned. Deputies were appropriately appointed. But, so far as the continuation of her pregnancy was concerned, so what?

It was decided as a matter of fact that she had capacity to decide whether or not to continue with, or to terminate, the pregnancy. And that meant that the Court of Protection had no jurisdiction to decide the matter. No best interests determination could lawfully be made.Read More »Abortion and the cognitively impaired mother

Informed consent deserves a little less respect

The conclusions of a ‘citizens’ jury’, reported recently in the British Medical Journal [1] shed light on some important weaknesses in the doctrine of ‘informed consent’. The doctrine is commonly thought of as canonical. Be careful about questioning its exalted status: you’ll be branded paternalistic at best, and the indictment may well involve unflattering comparisons with Dr. Mengele.

The ‘jury’, composed of 25 women,  commented on how a leaflet on breast cancer screening should be re-drafted. The jury preferred:

– the term ‘overtreatment’ to ‘over-diagnosis’

-to express benefits in the language of lives saved rather than deaths avoided

– to talk about ‘benefits’ and ‘risks’ rather than ‘pros’ and ‘cons’

– to begin the leaflet by an up-beat reference to the numbers of lives saved by screening, followed by the caveat that a small number of women would be over-treated.

What was the priority: reassurance or accuracy? The majority (15), wanted both; 3 thought that reassurance was most important; 7 thought that accuracy was the priority.

How should one list the benefits and harms? Four thought they should be listed together in the same sentence, 8 that they should be listed separately, and 12 for mentioning them first separately and then together.

The point of all this  is that there are innumerable different ways, all of which would be smiled on by Bolam [2], in which entirely accurate information can be conveyed. And yet tiny nuances are seen by the receivers of the information as significant.Read More »Informed consent deserves a little less respect

A Dyslexic boy in a Trojan horse

‘Come in’, said the Well Known Educational Psychologist. We did. ‘Please sit down’, she said, and we did. She didn’t waste time, and quite right too. We wanted to know.

‘Tom and I have had a very interesting afternoon.’ That sounded bad.

‘He’s a very able child indeed’. That sounded worse, because it came with the emphatic pause that always indicates a big ‘but’.

In the pause I wondered why we’d done this. Why we’d taken a little boy out of the woods and out of his playground to have someone fumble inside his head with blunt tools: indices, probes, inventories, and assumptions about normality.

‘He’s quite dramatically dyslexic, I’m afraid.’ My wife shared her fear. There was a lot of it sloshing around. ‘But his IQ is so high that he’ll be able to use lots of coping strategies. And he’s still very young: there’s lots that can be done.’ And she told us what it was. Regulations could be invoked, tribunals could be convened, cards could be flashed, phonemes could be chanted. He could be imprinted like other children. It would just take longer. It would be hard work, for Tom and for us, but there was every reason to be hopeful of a ‘good result’.

And what the hell did that mean? I asked myself. I was too polite to ask her. I didn’t want a result. I wanted my son.Read More »A Dyslexic boy in a Trojan horse