The Problem of Moral Responsibility in Medicine

The Problem of Moral Responsibility in Medicine
SUMNER
B. Twiss,
JR.
Downloaded from http://jmp.oxfordjournals.org/ at Monash University on February 27, 2013
INTRODUCTION
Rhetoric of Responsibility The term "responsibility" is used with ever-increasing frequency in medical circles. It is used not merely as a term of moral (and legal) approbation but also as a normative standard for medical decision making and practice. Clinicians talk about the responsible physician and the distinctive responsibilities of the medical profession. Researchers wrestle with responsibilities owed to research subjects, the general public, and even future generations. Administrators and bureaucrats argue over issues of the allocation of responsibility for the development and delivery of health care services. The central role that responsibility plays in discussions of medical ethics is obvious from surveying the literature. It is noteworthy too that the rhetoric of moral responsibility, involving a good deal of namecalling, is on the rise in medical contexts. For example, physicians and researchersindeed, the whole medical professionare attacked by the public for being morally irresponsible in the research and provision of medical care. At the same time medical professionals maintain that the public itself is morally irresponsible in allowing the government to allocate funds in the way it does for the research, development, and delivery of medical technology. From the way that responsibility and its cognates are used in such discussions and debates, it appears that the parties to these disputes often argue past each other because they are employing differentperhaps mutually incompatibleconceptions of (moral) responsibility. The numerous, but relatively uncritical, references to moral responsibility in medicine strongly suggest that the expression is used in a vague and equivocal manner, so much so that philosophers are inclined to ask what * Associate professor of religious studies, Brown University.
The Journal of Medicine and Philosophy, 1977, vol. 2, no. 4. 1977 by The Society for Health and Human Values. All rights reserved. 330
Sumner B. Twiss, Jr. sense of responsibility is intended. What are its conditions and criteria (logical features)? Who precisely is responsible? To whom? And for what? Conceptual unclarity exists. This needs to be remedied, particularly if the language of moral responsibility is going to continue to be used in specifying and evaluating medical policies and practices. It is evident that unraveling the notion of moral responsibility and showing how, in its various senses, it is related to medicine are important tasks. In what follows I intend to help remedy this unclarity about the concept of moral responsibility in medical practice, research, and policymaking. My primary aim is to provide an analytic account of different conceptions of responsibility in medicine in order to explore their moral and social implications. A secondary and related goal is to develop an ethic of role responsibility and an ethic of long-range responsibility that are relevant to aspects of clinical medicine and biomedical research, respectively. Contextual Variance in Medicine The very title of this article raises the question of whether there is any single problem of moral responsibility in medicine. Is there a common core of meaning associated with such responsibility? Is there a common problem or tension peculiarly characteristic of moral responsibility in medicine? These questions are surely worth entertaining, at least for the insight that their answers may shed on the moral structures and dilemmas of modern medicine. To anticipate a bit, I suggest that the use of moral responsibility in medicine is context-variant, so that it is difficult to identify one common meaning or problem of what may be called medical responsibility. Rather, corresponding to discrete contexts of activity in the medical field, there are nuanced notions of moral responsibility and distinctive moral problems that need to be carefully elucidated. Given the diverse rhetoric of responsibility in medicine and the systematic ambiguity of the term "responsibility," it would be unwise to assume that there is a single notion of moral responsibility applicable to medicine. In fact, the term "medicine" itself is systematically ambiguous and is used to refer to a variety of activities ranging from clinical care by the physician all the way to policymaking by the Department of Health, Education, and Welfare. In the following inquiry I propose to examine the uses of moral responsibility in three medical contexts: (1) clinical medical care (physician/patient relationship), including some attention to public health; (2) biomedical research, including human experimentation (therapeutic and nontherapeutic) and basic biological research of medical relevance; and (3) health-care administration, including hospital administration and government policy making about medical care and research. These contexts are neither exhaustive nor mutually exclusive, though they are fairly discrete and paradigmatic. By exploring moral responsibil331
The Journal of Medicine and Philosophy ity in these contexts, I hope to avoid prejudging questions about the common meaning or the contwextual variance of moral responsibility in medicine. These and related questions about moral problems or tensions characteristic of responsibility in medicine cannot be answered a priori, unless one wants to stipulate meanings and legislate problems into or out of existence. However, even at the outset I would like to suggest (hypothesize) that there may well be at least three basic problems or tensions in what is commonly called the ethics of medicine. The first is the tension between the personal and the social, for example, ministering to the health of the individual versus protecting the health and welfare of the population. The second is the tension between efficiency and equality, for example, efficient use of medical resources versus fair allocation of such resources. And the third is the tension between the present and the future, for example, delivery of adequate health care to the present population versus development of medical technologies that can only benefit future generations. Each of these tensions or conflicts has the classic form of a moral dilemma (cf. Rescher 1975). It would be well to keep these moral problems in mind throughout the subsequent inquiry into responsibility in medicine. LOGIC OF MORAL RESPONSIBILITY In order to structure and facilitate this inquiry, certain categories of moral analysis need to be elaborated. This task requires me to identify common elements in the notion of responsibility, elucidate the systematic ambiguity of (moral) responsibility, and articulate two preeminent conceptions of moral responsibility. After completing this task, I will sketch some normative proposals regarding these latter two conceptions. Common Elements Although there is extensive philosophical literature on the concept of responsibility, the writings tend to focus on the moral implications of the freewill controversy and the legal implications of theories of human causation (see, e.g., Hart and Honore 1959; Glover 1970). As important as these investigations may be for clarifying, for example, theories of punishment, they do not address systematically the issue of moral responsibility. Thus, there is no easily accessible and definitive analysis of the concept of moral responsibility upon which this inquiry can rely. I want to begin my homespun logical analysis by reflecting on certain notions that come immediately to mind when one thinks about a responsible agent, a person who acts responsibly. It seems clear that responsibility is paradigmatically attached to agents by virtue of the consequences or outcomes of their voluntary
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Sumner B. Twiss, Jr. actions, whether already performed or merely intended. This brief initial characterization suggests two common features of the notion of responsibility. First, the reference to voluntary actions implies that a responsible agent is accountable for his actions, as distinguished from consequences, by virtue of being capable of giving an account (reasons) for past and future actions. As John Ladd maintains, such accountability is part of the very meaning of the concept of action performed by a competent agent (1975, pp. 109-10). This logical remark, of course, indicates that there are certain capacity requirements that must be satisfied by a responsible agent (more on this later). The second feature suggested by the characterization is that responsibility pertains to the relationship between an agent's action(s) and the state(s) of affairs brought about by such actions^), that is, strictly speaking, an agent is responsible or liable for the consequences or outcomes of his actions. This too is a logical point, and it indicates the need to specify certain conditions of liability in addition to capacity requirements (more on this later). The upshot of the initial characterization is the identification of two common elements in the notion of responsibility: accountability for actions, implying capacity requirements, and liability for consequences of actions, implying conditions of liability. Certain other common features of the notion of responsibility can be adduced by reflecting on another commonplace. A responsible agent ordinarily is expected to have forethought and circumspection in performing actions; that is, responsibility is ordinarily attributed to an agent who thinks about what he is doing or going to do (cf. Baier 1966, pp. 64-66). This second characterization suggests two further elements common to the notion of responsibility. First, inasmuch as a responsible agent is expected to exercise judgment by means of thoughtful decision making in light of probable consequences, the notion of responsibility implies rational deliberation. Second, insofar as a responsible agent fails to live up to this expectation, the consequent absence of rational deliberation implies culpable neglect or negligence (cf. Ladd 1975, p. 112). In short, there are two additional elements common to the notion of responsibility: rational deliberation (practical reason) and the absence of negligence in the performance of actions. As J. R. Pennock suggests, each of these two pairs of common elements in the notion of responsibilitythat is, accountability/liability and rationality/absence of neglecttends to influence the other (1960, pp. 13-14). In any particular application of the notion, either set may be dominant, but the other is there in the background. For example, if agent A is held responsible (liable) for the harmful outcome of his action, then A is assumed to have had the reason and foresight to avoid that outcome (if he had exercised his judgment or not been negligent); or, from the other side, if A is deemed to be responsible in the rational sense, then A
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The Journal of Medicine and Philosophy is assumed to be aware of his accountability and liability for his actions and their consequences. Indeed, the logical interdependence of these common elements can be inferred from an examination of capacity requirements and conditions of liability. H. L. A. Hart argues a vigorous case for viewing the capacities of understanding, reasoning, and control of conduct as necessary conditions of responsible agency. In Hart's words, "the expression 'he is responsible for his actions' is used to assert that a person has certain normal capacities. These constitute the most important criteria of moral liability-responsibility" (Hart 1968, p. 227). As the analysis above suggests, Hart's claim is somewhat overstated, since these criteria pertain mainly to accountability for actions and only secondarily to liability for consequences. But Hart is clearly on the right track: the conditions of an ability to understand what conduct rules require, an ability to deliberate and reach decisions concerning these rules, and an ability to conform to decisions made specify capacities necessary to account for actions. Hart's criteria aptly indicate what I mean by capacity requirements for accountability. Specifying the conditions of liability is a little more difficult. Hart himself points up the difficulty. He asserts that the capacity requirements are the conditions of (moral) liability-responsibility. Yet it is obvious that as formulated these capacity requirements omit reference, for example, to foreseeability of consequences, surely a likely candidate for inclusion within conditions of liability. Furthermore, in another passage where Hart does attempt to specify conditions of liability, he says explicitly that these "conditions [are] mainly, but not exclusively, psychological" (psychological meaning normal mental capacities as formulated above) (Hart 1968, p. 217). The implication is that capacity requirements comprise only a part of the conditions of liability. This is certainly correct. Conditions of liability must include not only capacity requirements but also reference to an agent's knowledge and intention and to the causal connection between an agent's action and its outcome. Thus, additional conditions of liability at least include adequate knowledge of the situation, ability to foresee the consequences of actions, intention to achieve certain outcomes of actions, and recognizable causal connection between a given action and its outcome. These conditions of liability are fairly evident and noncontroversial. But one sticking point, so to speak, remains. In law and morality agents are often held liable for the consequences of actions done by other persons related to them in a special way. This type of liability is called "vicarious," since the agent did nothing and yet has liability delegated to him (see Hart and Honore 1959, pp. 60-61). An example of (moral and legal) vicarious liability is a parent's liability for the harm done by his child. If the validity of this type of liability is admitted, then another
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Sumner B. Twiss, Jr. condition of liability must be added: special (personal) relationships with the agent. The problem with admitting this notion and its corresponding condition is that to do so seems inconsistent with the view that an agent is only liable for the consequences of his own actions. There are at least three ways to handle this problem: (1) deny the validity of vicarious liability (from the moral point of view); (2) admit a category of exceptions to liability in the usual sense and live with the inconsistency (not everything in the moral life need be logical); or (3) interpret vicarious liability so that it fits in with the usual sense of liability (e.g., say that a parent qua parent is liable for the consequences of his child's actions, since he helped bring his child into existence and thereby set up a range of situations where damage done by his child could be foreseen in the long run). Of these three alternatives (there may be others), I prefer the third and can live with the second. In either case, however, it seems wise to formulate another condition of liability: special relationships with the agent which the agent brought into being. Systematic Ambiguity Up to this point an important systematic ambiguity in the use of responsibility has been ignored. It is now time to elucidate this ambiguity and to distinguish three senses of responsibility: descriptive responsibility, normative responsibility, and role responsibility. Discriminating these three senses may help to clarify certain problems that will arise in subsequent sections. As will be seen, each sense or use of responsibility has a distinctive logic which requires careful adumbration. These logical forms and correlative notions of responsibility intersect in important and interesting ways. Ladd observes that "there is a basic ambiguity in the term 'responsibility' itself, namely that it may be used descriptively or normatively" (1975, p. 112). Descriptively, responsibility refers to an actual relationship between an agent's action and its outcome; while normatively, responsibility refers to such a relationship that ought to exist according to some standard. For example, I am descriptively responsible for the consequences of an auto accident that I brought about by running a stop sign; and I am normatively responsible for reporting the accident, calling an ambulance, compensating an injured party, etc., according to both moral and legal standards of conduct. As Ladd rightly argues, ascriptions of descriptive responsibility differ logically from those of normative responsibility (1975, pp. 113-16). Attributions of descriptive responsibility are generally causal in character, for responsibility in this sense generally pertains to a causal relationship between an agent's action and its outcome. (Although Ladd fails to discuss it, the qualification, "generally," is needed because of the controversial condition of special relationship associated with vicarious 335
The Journal of Medicine and Philosophy liability; this will not be discussed any further here.) Descriptive responsibility ordinarily is used retrospectively to indicate an agent's liability for a specific undesirable outcome of his past action. Furthermore, this sense of responsibility is exclusionary in that the liability incurred by the agent cannot be transferred to some other agent (Ladd 1975, pp. 114-15). These, then, are the fundamental logical features of descriptive responsibility. By contrast, attributions of normative responsibility need not be causal, for responsibility in this sense pertains mainly to the fulfillment of duties. Of course, some duties may stem from descriptive responsibilitythat is, liability for the outcome of a past action (e.g., consider the duties following from the auto accident case)but this is not the sole or principal source of duties. We all have duties (normative responsibility) to further the welfare of others, and these arise in various ways, for example, by agreement, contract, or promise, by virtue of personal relationships or moral principles, etc. Normative responsibility ordinarily is used prospectively to point out an agent's accountability and liability for performing actions required by duties in the future. These duties are related to the advancement of the welfare of others; that is, they specify desirable outcomes of actions. Moreover, the sense of normative responsibility associated with these duties is inclusionary in that accountability and liability for the performance of duties are incurred by all agents. That is, from the fact that a particular agent has a duty to advance the welfare of another, it does not follow that no one else has this duty; when normative responsibility devolves on an agent, this does not cancel the normative responsibility of other agents. Of course, there is no gainsaying, the fact that normative responsibility in particular cases may vary in intensity and exigency for an agent (e.g., such responsibility for children, friends, colleagues, neighbors, etc., varies in intensity and exigency according to personal, social, and even physical distance). As Ladd poignantly puts it, "I am more responsible for my children and friends than for the children and friends of a Chinese peasant. But that does not mean that I have no responsibility at all for the latter" (1975, p. 115). This, then, is the basic logical character of normative responsibility. The notions of descriptive and normative responsibility are logically distinct, but they are related in important ways. For example, as already suggested, attributions of normative responsibility can arise out of attributions of descriptive responsibility; consider the normative implications (duties) of descriptive responsibility (liability) for the auto accident. Another significant relationship is that in most instances abrogation of normative responsibility implies the propriety of attributing descriptive responsibility. Breaches of duty result in undesirable outcomes for which agents are liable. Yet another connection is that most ascriptions of descriptive responsibility presuppose normative responsibility as a stan336
Sumner B. Twiss, Jr. dard for appraising liability for undesirable outcomes of actions. For instance, in the auto-accident case, I had a prior normative responsibility for performing such duties as stopping at stop signs, being cautious at intersections, driving defensively, etc. A relationship often discussed in the philosophical literature is the identification of the causal connection in descriptive responsibility as a necessary condition for ascribing normative responsibility; or, as it is more commonly phrased, causal responsibility is one of the necessary conditions for moral responsibility (see, e.g., Taylor 1975, p. 167). This condition appears reasonable except perhaps in cases of vicarious responsibility (liability), where the causal connection is not so obvious. The categories of descriptive and normative responsibility do not exhaust the basic senses that go to make up the systematic ambiguity of responsibility, for there is another sense or kind of responsibility which typically is attached to social roles and offices: namely, role responsibility. Ladd develops a correlative category called "official responsibility" and suggests that it is a hybrid of descriptive and normative responsibility, inasmuch as it is exclusionary, like descriptive responsibility, and generates duties, like normative responsibility (1975, pp. 116-18). I am inclined to agree with this bald characterization but not for the reasons that Ladd advances. Two of Ladd's main points are noteworthy. First, official responsibility is exclusionary not because of the logic of human action and agency, as in the case of descriptive responsibility, but because "it is a correlate of authority and tasks that are delegated by the superior [in a bureaucratic organization]" (1975, p. 117). Second, official responsibility differs from both descriptive and normative responsibility in that the "duties associated with offices are alienable" (ibid.). Hence, concludes Ladd, "the official has only official responsibility, which being non-moral [i.e., nonnormative], has only a casual relationship to morality and . . . moral (normative) responsibilities" (p. 118). If Ladd is right in his analysis of official responsibility, then I want to contend that there is yet another sense of responsibility typically attached to social rolesnamely, role responsibilitywhich his analysis overlooks. Rather than proliferate senses of responsibility, however, I prefer to argue that Ladd's analysis is wrong and that when corrected it points in the direction of a third sense of responsibility which I call role responsibility. Ladd is simply wrong in saying that the responsibility typically attached to social roles is a correlate of authority and tasks delegated by a superior. How can this characterization ever possibly account for the responsibility attached to the social roles of parent, citizen, lawyer, physician, etc.? It cannot. Moreover, is it true that the duties associated with these roles are alienable? Again, the answer is no, for to try to transfer these duties to another person while remaining in the role (if this
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The Journal of Medicine and Philosophy makes any sense at all) is inconsistent. To try to transfer these duties to another person is to give up the role and to fail in the transfer. One cannot act in the role (e.g., be a parent) and alienate the duties (e.g., delegate or even extinguish parental duties of nurture) at one and the same time. The duties define the role and are not alienable. Furthermore, Ladd's contention that the duties associated with social roles are only casually related to normative (moral) responsibility exhibits a fundamental misunderstanding on his part about the nature of roles, role relationships, and normative responsibility. Roles and role relationships give rise to normative (moral) responsibility; this is hardly a casual affair. But enough of polemic. Let me now turn directly to the logical features of role responsibility. Role responsibility is that kind of responsibility typically attached to social roles and role relationships of a semipermanent nature, such as those between parent and child, lawyer and client, doctor and patient, as contrasted with more casual ad hoc relationships based on short-term agreements, contracts, promises, and the like. Role responsibility resembles descriptive responsibility in certain respects. For example, it is used retrospectively to indicate a role agent's liability for undesirable outcomes of his actions; often this liability is determined by the role recipient (e.g., a client). Moreover, this sense of responsibility is exclusionary in that the liability incurred by the role agent cannot be transferred to some other agent. Role responsibility also resembles normative responsibility in certain respects. First, role responsibility pertains mainly to the fulfillment of duties designed to further the welfare of others, albeit a defined class of others. Second, role responsibility is used prospectively to point out a,role agent's accountability and liability for performing actions required by these duties in the future. In the case of role responsibility, these other-regarding duties are often quite general and diffuse, simply enjoining broad desirable outcomes for the role agent (e.g., nurturing a child, restoring the health of a patient). Third, the notion of responsibility associated with these duties is inclusionary, though it perhaps represents a limiting case of what is meant by inclusionary. That is, role responsibility devolves more heavily on the role agent than on other agents, to the extent that it is an extreme case along the spectrum of exigency varying inversely with distance. Noting these resemblances does not provide an adequate logical characterization of role responsibility, for, as it now stands, the account leaves open the question of whether role responsibility is a genuine hybrid of descriptive and normative responsibility (a third sense) or simply an instance of normative responsibility. The inability to give a decisive answer to this question implies that the account of role responsibility is incomplete. Clearly, the concept of a social role offers a purchase on the notion 338
Sumner B. Twiss, Jr. of role responsibility precisely because agents so often appeal to their roles when they want to understand and defend themselves as acting responsibly. Social roles and relationships are ongoing constitutive elements in the social and institutional fabric of life. They advance accepted social purposes or goals in the form of exigent duties aimed at providing for the welfare of others. To act in a social role entails the cooperation of others who impute legitimacy to activity within the role, especially those others who are the recipients of the role activity. Thus, by virtue of the special relationship established by a social role, the role agent is concerned for the welfare of role recipients within the frame of a conception of responsibility (cf. Downie 1971, pp. 128-34). To act in a social role involves taking the point of view of the role and operating within its normative context (cf. Moline 1968, pp. 194-95). This context refers to both evaluative aims, ends, or goals (desirable outcomes of action) and prescriptive, regulative, or constraining rules (criteria of deliberation and action). Evaluative aims comprise a spectrum ranging from specific tasks and institutional functions all the way to background social and moral norms. Prescriptive rules include constraints on reasoning (e.g., within the priorities of the role's aims) and constraints on action, that is, duties specified by the role (Kadish and Kadish 1973, pp. 18-23). Since this normative context will be treated in more detail later, I will focus only on duties at this point. And what I have to say about these duties now concerns only their logical character as it bears on the notion of role responsibility. The duties that arise out of the interpersonal relationship established by a social role have distinctive logical features. First, these duties are strongly other-regarding in the sense that they aim to further the welfare of others, namely, the class of role recipients. Second, these duties are exclusionary in the sense that they devolve on the role agent, though the liability of other agents for the performance of these duties is not canceled. Third, these duties are often nonpreemptive in character (i.e., not claimed as rights) because they enjoin the kinds of actions that are performed out of loyalty, devotion, and respect (other-regarding attitudes). Examples include parental duties to children, familial duties to relatives, and even perhaps physicians' duties to patients. Fourth, these duties represent moral requirements that fall under a general concept of concern, where concern means concern for another's welfare by virtue of the special relationship defined by the integrity of the corresponding social role. Finally, these duties are relatively complex, extensive, and diffuse in character, specifying a sphere of responsibility requiring care and attention over a protracted period of time (cf. Hart 1968, p. 213). Consequently, responsible decision and action within the role relationship require consideration of many factors relevant to the recipient, such as needs, desires, benefits, and risks, that must be weighed carefully in 339
The Journal of Medicine and Philosophy order to reach a final discretionary judgment about a course of action (cf. Ladd 1977). This all too brief analysis of the dutiful aspects of role responsibility is sufficient to suggest a third sense or notion of responsibility: role responsibility. It is distinct from descriptive responsibility insofar as accountability and liability mean answerability to another person within the role relationshipnamely, the recipient. Although it resembles normative responsibility in many respects, the logical features of otherregarding attitudes, concern by virtue of a special relationship, and discretionary judgment are sufficient to distinguish role responsibility from the more general notion of normative responsibility. Preeminent Concepts of Moral Responsibility Having elucidated the systematic ambiguity of the uses of responsibility and identified certain common elements in these uses, I am now able to articulate two dominant conceptions of moral responsibility: the traditional (general) concept of moral responsibility and the special notion of (moral) role responsibility. The analysis of the traditional concept will be brief and will take the form of answering three questions. What does it mean to say that a person is morally responsible for his actions and their outcomes? Under what conditions is it justifiable to hold a person morally responsible for actions and outcomes? What conditions or factors give rise to moral responsibility in the first place? To say that a person is morally responsible for his actions and their outcomes means that (1) he is accountable for his actions and (2) he is liable for the (undesirable) outcomes of his actions and for the performance of his duties (cf. Taylor 1975, p. 166). This characterization implies that the person must have a positive commitment to pursue desirable ends and to fulfill his duties. Those conditions under which it is justifiable to hold a person morally responsible include capacity requirements and conditions of liability. Furthermore, they include reference to (the absence of) what are commonly called "excusing conditions." If none of these excusing conditions are applicable to a person, then he is held morally responsible. The set of excusing conditions are related logically to capacity requirement and conditions of liability and include such criteria as nonnegligent ignorance of the nature or outcomes of action, presence of external or internal coercion of free will, circumstances beyond one's control, and absence of ability or opportunity to do the right thing, etc. (Taylor 1975, pp. 146-50). Conditions giving rise to moral responsibility are, as Ladd suggests, characteristically vague and fuzzy (1975, pp. 119-20). Typical examples of such conditions include power and competence on the one hand and proximity on the other. A person who has the power or competence to bring about a desirable outcome through his action tends to acquire moral responsibility for
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Sumner B. Twiss, Jr. attaining that outcome. Moreover, as has been seen, social or physical proximity to other persons tends to generate moral responsibility for advancing their welfare. Analysis of the special concept of (moral) role responsibility will require more detailed attention. Role responsibility is attributed to an agent acting within a social role that prescribes certain other-regarding duties. Roughly speaking, for such an agent to be (morally) responsible means that he takes these duties seriously, sees the point of fulfilling the duties, adjusts the performance of the duties to the particular circumstances of the role recipient, and thereby acts with discretion and fittingness (Twiss 1974, p. 229). In this case, the notions of accountability and liability involve answerability of the role agent to the role recipient for the proper performance of duties specifying the relationship between the two. The conditions under which it is justifiable to hold any person morally responsible apply mutatis mutandis to a role agent. There are further conditions associated with role responsibility that distinguish it from the more general traditional concept of moral responsibility. These conditions are bound up with the notion of discretionary judgment and action peculiar to role responsibility. It was suggested earlier that a social role establishes a distinctive point of view or normative context involving certain evaluative aims and prescriptive rules. This normative context requires further explication. A social role or role relationship exists to achieve certain evaluative aims; and prescriptions within the role serve to regulate (constrain) the conduct of the agent in trying to attain these aims. Various types of aims shape the normative context of the role. The most immediate and least abstract type of aim refers to the specific tasks undertaken by the role agent, for example, the parental tasks necessary to nurture, educate, socialize, or otherwise raise a child or the medical interventions necessary to cure or comfort a patient. A second type of aim is connected with the role's function within the larger social and institutional fabric of life, for example, to raise an autonomous and moral person or to improve health. Clearly, task aims are designed to serve these broader social or institutional aims. A third type of aim refers to background sociomoral norms, for example, basic moral principles of nonmaleficence, mutual respect, fairness, etc., and basic moral rights of self-determination, personal inviolability, liberty, etc. These background norms serve to justify, criticize, and even humanize task aims and institutional aims within the role (cf. Downie 1971, pp. 121-28; Kadish and Kadish 1973, pp. 21-23). Prescribed rules of various types also shape the normative context of a social role or role relationship. Two kinds of rules warrant special attention: constraints on deliberation and constraints on action. The first class of rules sets limitations on what count as acceptable reasons for understanding actions in the role relationship. Such limitations help to
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The Journal of Medicine and Philosophy structure the role so that its aims can be achieved and the recipient be well served. Thus, for example, in the normative context of a social role, the agent knows that certain considerations must always be taken into account (e.g., the recipient's needs), other factors may or may not be considered relevant depending on the situation (e.g., the recipient's desires and wants), and yet other factors are simply not relevant (e.g., the recipient's social class or status). Limitations on deliberation depend logically on the priorities assigned to various aspects of the role's aims. Prescribed rules relating to action within a social role simply refer to the other-regarding duties constitutive of the role. These duties help to insure that the aims of the role will be achieved and that the welfare of the recipient will be advanced. They specify what sorts of actions are justifiable within the role. In general, these duties are of a relatively complex, extensive, and diffuse character, establishing a sphere of activity that requires the use of reason (Kadish and Kadish 1973, pp. 20-21). The normative context of a social role or role relationship encourages the agent to reason and act at his discretion within limits. Indeed, the very concept of discretionary judgment is intelligible only within this normative context, for an agent acting with discretion must have a way of determining what considerations are relevant and important and what activity is proper within the role relationship. Evaluative aims and prescribed duties require the rational exercise of discretion, that is, serious attention to relevant aims, reasons, and duties, relevant not just to the role as a sociological abstraction but relevant to the concrete recipient in the role relationship (cf. Hart 1968, p. 213). Thus, a necessary condition of role responsibility is the agent's rational ability to make discretionary judgments about what is in the best interests of the recipient. ETHICS OF RESPONSIBILITY Both this special notion of role responsibility and the more general (traditional) concept of moral responsibility imply two ethics of responsibility which are particularly applicable to biomedical activities. From the notion of role responsibility, one can derive an ethic of role responsibility, and, from the general concept of moral responsibility, an ethic of long-range responsibility. Ethic of Role Responsibility The analysis of role responsibility showed that especially exigent moral requirements in the form of other-regarding duties are associated with social roles and their semipermanent role relationships. These duties are logically connected with such other-regarding attitudes as loyalty, devotion, respect, and fidelity and fall under a concept of role responsibility that entails the agent's concern for the recipient's welfare by virtue of the
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Sumner B. Twiss, Jr. special relationship between the two (cf. Ladd 1977). The upshot of this analysis was the articulation of a rather exclusionary notion of responsibility on the part of the role agent for the welfare of the role recipient. One important consequence of this characterization was the identification of the necessary condition of the agent's ability to make discretionary judgments about what is in the best interests of the recipient. My suggestion now is that this notion of role responsibility implies a distinctive ethical stance. Emerging from the notion of (moral) role responsibility is what may be called an ethic of role responsibility. This ethic has two principal components. First, it implies the moral primacy of need as a criterion for decision and action within the role. By virtue of the role relationship and its emphasis on other-regarding duties and the recipient's welfare, the agent ought to give maximal attention to the recipient's needs in the performance of duties, as contrasted, for example, with the recipient's social worth or merit. Second, it implies respecting what Charles Fried calls "the integrity of a relationship" such that the conduct of the agent strengthens and coordinates the mutual interest of both agent and recipient in advancing the recipient's welfare (1974, p. 74). The role agent is enjoined to act in the role in such a way that both agent and recipient mutually respect one another in their devotion to a common goalserving the best interests of the recipient. Ethic of Long-Range Responsibility In the analysis of the traditional (general) concept of moral responsibility, the notions of accountability and liability for action and its outcome are limited in a number of respects. For example, under the traditional concept, human action is viewed as having a rather small effective range, so that assessment of an agent's liability presumes minimal short-term causal connections between actions and their consequences, limited foresight of such consequences, limited knowledge of the situation, limited control over circumstances, etc. Ascription of moral responsibility is based on a notion of causal responsibility in which liability for causal connections and consequences is severely constrained by the horizon of the immediately foreseeable (Hart and Honore 1959, pp. 230 ff.). Of course, liability for a course of action and its consequences is limited also at the point at which another agent intervenes voluntarily in the causal chain of events initiated by that course of action. This limitation has an important exception: another agent's voluntary intervention generally exculpates the original agent except when the latter's action negligently provides an opportunity known to be commonly exploited for harm. All in all, this traditional concept of moral responsibility, together with its assumed limitations, is neatly characterized by Hans Jonas's observation that this concept implies "an ethical universe of contemporaries" (1974, P- 7).
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The Journal of Medicine and Philosophy Modern technologies, including those in the fields of biology and medicine, have the effect of reshaping or extending this traditional concept and its assumptions. The wider scale of ends, means, and consequences of technological activities injects new factors of moral significance and alters the concept of moral responsibility. Here one thinks of the impact of the extended spatial spread and time span of causal chains of events, the possible irreversibility of long-term harmful consequences, and the like, which are to an ever-increasing degree foreseeable or predictable. Furthermore, on the basis of past historical experience and increasing sophistication in the development of predictive methods, more can be known about the potential exploitation of opportunities provided by technological innovations. Given these circumstances and developments, the horizon of the foreseeable is expanded, greater control over events is posited, the limit of another agent's exculpating intervention is deemphasized, and the notions of accountability and liability are extended. Moreover, the notion of negligence becomes a more significant category in assessing liability, and predictive knowledge assumes ethical importance. The upshot of these developments is the emergence of what may be called an ethic of long-range responsibility. This ethic has two primary components. First, it implies the moral imperative of acquiring relevant predictive knowledge before implementing a technology that involves a wide-ranging causal scale of actions and outcomes. Second, it implies that ignorance about possible (conceivable) indirect, delayed, secondorder consequences, particularly when they may be harmful and irreversible, constitutes a significant moral reason for restraint and caution in developing and. implementing a technology on a large scale. A third implication of this ethic is at least worth mentioning: moral responsibility for technology and its consequences begins to touch on concerns related to not only the present but also the future interests of the social community. An exclusive focus on the ethical universe of contemporaries is no longer warranted (Twiss 1976, pp. 28-29). MORAL RESPONSIBILITY IN CLINICAL MEDICINE Most, if not all, descriptions of clinical medical care indicate the logical relevance of the concept of role responsibility and its corresponding ethic. Moral responsibility in this medical context is most appropriately characterized in terms of role responsibility. Consider, for example, the following statements by Eric Cassell, a clinician, and Charles Fried, a lawyer: Medicine is inherently moral. That is to say, that the practice of medicine is a "doing" function . . . caring for the sick. . . . [M]edicine
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is called an art, not a science, because a necessarily inherent part of it is decision-making linked to human values. . . . In the process of [medical] care . . . a number of . . . ethical matters have been handled along the waymatters that involve both fact and value, in which both patient and doctor interact in making decisions. [Cassell 1973, pp. 51, 54] The traditional concept of the physician's relation to his patient is one of unqualified fidelity to that patient's health. He may certainly not do anything that would impair the patient's health and he must do everything in his ability to further it. . . . The paradigm of the physician [is one] who bears unreserved loyalty to the interests of his particular patient. . . . The role of the physician . . . the role of trusted adviser and helper is a distinctive and significant one, as a total role and not just for the discrete benefits conferred within it. . . . Because of the significance of the role it is important that the commitments of that role be honored. [Fried 1974, pp. 50, 57, 74] Statements like these strongly suggest that clinical medicine not only employs a notion of moral responsibility predicated on a social role (relationship) but also refers to moral requirements in the form of otherregarding attitudes and criteria distinctive to the ethic of role responsibility (cf. Morgan and Engel 1969, chap. 1). The foregoing, of course, only makes a prima facie case. What is required to make this case conclusive is a careful analysis of responsibility in the clinical role. And only with such an analysis in hand can one identify and possibly resolve certain problems associated with moral responsibility in the clinical context.
Clinical Role The medical clinician's role (physician/patient relationship), like any social role, exists to achieve certain evaluative aims related to the welfare of othersin this case, individual patients. Various aims, in differing degrees of generality, help shape the normative context of this role. The most immediate aims are the specific tasks of ministering to the patient's health; these constitute a spectrum of medical interventions which are, by their very nature, situation-specific. Broader institutional aims are bound up with the role's function in the social fabric of life, namely, to maintain the integrity of the person, with special reference to the physical substratum of that integrity, and to help preserve life capacities necessary for personal realization of life plans in pursuit of a good and happy life (cf. Fried 1974, pp. 95-99). Finally, within the role there is reference to background moral aims that justify and constrain task and institutional aims: that is, adherence to basic moral principles such as nonmaleficence, mutual respect, minimal beneficence, and fidelity, and recognition of 345
The Journal of Medicine and Philosophy basic moral rights of autonomy, personal inviolability, liberty, etc., all of which are comparable with what Fried identifies as "rights in medical care"lucidity, fidelity, autonomy, and humanity (1974, pp. 101-3). Again, like any social role, the normative context of the clinical role is also shaped by certain prescriptions, particularly duties that pertain to the promotion of health, the alleviation of pain and suffering, and the maintenance of dignity and respect. These duties are other-regarding in character, and they are logically related to other-regarding attitudes of care, concern, devotion, loyalty, and fidelity. The role's normative context clearly enjoins the physician to consider the mesh between aims and duties, to reason and act with discretion in the best interests of his patient's health, well-being, and personal integrity. The physician is responsible for taking his duties seriously and acting with reason and due deliberation. To say that the physician is responsible, then, means that he is answerable to his patient for the performance of his duties, that is, he is accountable and liable to the patient for his actions and their outcomes. It seems fair to say that in virtue of this role (relationship) the clinician bears (moral) role responsibility for fulfilling his duties and acting in the best interests of his patient. Clinical Ethic The role of the medical clinician appears to be a particularly apt candidate for the application of the ethic of role responsibility. To put it more strongly, the clinical role positively embraces this ethic. This is so for two reasons. First, the clinical role gives rise to a role relationship (between physician and patient) that has the welfare of the role recipient at its very cor&: the medical and health needs of the patient form the raison d'etre of the clinical role. Second, the role is founded on the assumption that "the relationship of assisting a person in need is an action and a relationship which have a special integrity of their own" (Fried 1974, p. 69). The physician/patient relationship forms a special unit of value in which both agent and recipient have an exigent mutual interest, the agent (clinician) because of his loyalty and commitment to the patient, and the recipient (patient) because his personal welfare and integrity are at stake. This mutual interest is expressed by the clinician's devotion and by the patient's trust. The first feature implies the logical and moral primacy of need as the standard for the clinician's discretionary judgment in the fulfillment of his duties. The second feature implies mutual respect and concern for the integrity of the relationship itself on the part of both clinician and patient. Together these implications entail the recognition of the ethic of role responsibility as constitutive of the clinical role and relationship. The role and the ethic, then, are mutually implicative in this case.
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Sumner B. Twiss, Jr. Problem of Public Health Given this rather straightforward analysis of the clinician's role responsibility, it may be thought that there can be no significant problems or tensions about moral responsibility in the clinical setting. But this is not at all the case. An important problem is generated by an ambiguity in the institutional aims of the clinical role. Recall that these aims are to maintain the bodily integrity of the person and to help preserve capacities necessary for pursuing life plans. Now it is fair to say that such aims represent the primary goals of health care, which set the agenda, so to speak, for biomedical activities in general. Furthermore, it may be argued plausibly that these aims imply at least two broad sorts of duties to act in the interest of maintaining good health. First, there are duties to serve the welfare of the individual, that is, the patient. These duties have just been discussed. They comprise what may be called the personal medical care model, which involves medical interventions that minister to the health and integrity of the individual patient. Second, and this is the new move, there are duties to serve the welfare of the communitythe collective patient. These duties involve medical and social interventions that attempt to optimize, or at least protect, the health aspects of the life environment of the population. They comprise what may be called the public health model, and they are of particular interest to the state. One important question is whether, and to what extent, the public health duties shape the clinical role. A second unavoidable question is whether, and to what extent, these duties introduce a tension or conflict into the clinical role. And a third question is how, if at all, do these duties affect the notion of moral responsibility in the clinical context of medicine. A number of observations, both empirical and logical in character, bear on the answers to these questions. The first observation is that what is called "public health" covers not only (or even primarily) clinical problems (e.g., infectious and contagious diseases) but also environmental problems (e.g., background radiation), social problems (e.g., drug abuse), and even economic and public policy issues (e.g., tax on tobacco and alcohol). Hence, it is not clear that clinical medicine can do much, if anything, about a whole range of public health problems. Applying, then, the maxim "ought implies can" in modo tollendo (negatively) to the clinical role has the result of limiting the extent to which public health concerns and duties can and ought to shape the role. However, a certain number of public health duties may still be relevant to the clinical role, for example, the duty to report the outbreak of a serious contagious disease, the duty to quarantine a patient, the duty to inform third parties about a patient's venereal disease, etc. Even after identifying a limited range of public health duties, the question remains whether these ought to shape the clinical role. The
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The Journal of Medicine and Philosophy answer is not clear. Following the ethic of role responsibility, perhaps a conditional rule of thumb regarding the inclusion of public health duties can be formulated: if performing a public health duty would benefit a patient directly, then that duty may be admissible to the clinical role ceterus paribusfor example, only if a rational patient could perceive the benefit, etc. Under this rule few public health duties appear to be admissible to the clinical role; quarantine may be an example. A second observation refers to the state's interest in clinical medicine and the clinical role. For example, it seems clear that the state can mandate that clinicians perform one or more public health activities or duties, regardless of whether this would be in their patients' best interests (from their point of view). The example of reporting cases of venereal disease comes to mind; compulsory screening and vaccination programs are also relevant examples. The state's rationale is clear: it is using its police powers to minimize illness in the population. Whether or not the state is morally justified in using its powers in a given case is less clear. But the real question here is how this observation affects the clinical role. Must the clinical role accommodate the state's interest in public health? That is, is the clinician bound by his role responsibility to represent the public health concerns of society at the possible expense of his patient's best interests? Clinicians appear divided in their answers. Some maintain that because the physician is licensed by the state and given a great deal of support he should conceive his role as partly representative of society and its values (see, e.g., Morison 1973, pp. 209-10). Others argue that the state's, wishes should be as little determinative as possible of the clinical role, which has an inviolate integrity (see, e.g., Munray 1974, pp. 196-98). Following this second line of reasoning, it seems that the clinician, as part of his role responsibility, ought to become a conscientious objector to attempted state interference in the clinical role and the physician/patient relationship. This position appears cogent, except for one thing. In being a conscientious objector out of regard for the integrity of the physician/patient relationship, the clinician may jeopardize the health and well-being of others in avoiding the performance of public health activities. Then the question arises: has the clinician the right to do this? Or, better, is not such avoidance an irresponsible course of action? The answer is complex. From the point of view of his role responsibility, the clinician may not be morally irresponsible. Yet from the viewpoint of the more general concept of moral responsibility, he may well be irresponsible, liable, and negligent. At this point it seems that there are two alternative approaches to resolving the problem of moral responsibility in the clinical context. First, it could be maintained that the clinician is morally responsible in two senses: he has special role responsibility for individual patients, and 348
Sumner B. Twiss, Jr. he is morally responsible in the traditional sense for performing public health duties. Second, it could be argued that the role responsibility of the clinician would not be grossly violated or distorted by the inclusion of public health duties if patients were made aware of such inclusion. The first alternative admits two concepts of moral responsibility to the clinical context; the second only one. Of course, choosing either alternative assumes the acceptance of a position not yet clearly defendednamely, the clinician qua clinical role has public health duties to perform. A third observation needs to be made. It is a logical point, though logic is sometimes skewed by ideological bias. It appears that the duties regarding clinical medical care have logical and moral primacy over those relating to public health. This is so because the aims and duties of the clinical role provide the rationale for public health measures. A public health agency is concerned with community welfare precisely because protecting or optimizing the health aspects of the environment in the final analysis benefits the health and bodily integrity of each individual member of the community. Thus, this observation assigns priority to the duties of personal medical care, over and against the duties of public health (Twiss 1976, pp. 25-26). Presumably, the inference to be drawn from this priority relationship is that public health duties should not be permitted to shape in any significant way the clinical role. The inference requires comment, if not rebuttal. The main critical point to be made is as follows. The inference drawn, or, better, the claim made, is no more than a normative recommendation that hardly follows logically from the observation in question. So we are still faced with our original questions about the role of public health duties in the clinical relationship. Based on the limited empirical data that have been introduced, it seems that public health duties do shape the normative context of the clinical role. The extent to which this is true is not at all clear, particularly since the state has been easing up on required reporting of venereal disease, compulsory vaccination, and the like. It is probably safe to say that at present public health duties do not enter significantly into the clinical role. The normative questions are much more difficult to answer. Given what has been said so far, it seems that the clinical role ought only to incorporate public health duties that relate to emergency situations, for example, of epidemic proportions. These duties may well be consistent with the integrity of the clinical role relationship, since in emergency situations patients themselves will be personally at risk. A good rule of thumb for incorporating public health duties is the conditional formula stated earlier: if performing a public health duty would benefit a patient directly, then, other things being equal, the duty may be admitted to the clinical role. Indeed, in logic, such a duty can also be regarded as a clinical duty. To go further than this risks undermining or destroying
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The Journal of Medicine and Philosophy those other-regarding attitudes of loyalty, devotion, trust, and fidelity so integral to the existence of the clinical role and the physician/patient relationship. Do public health duties presently create a tension or conflict in the clinical role? Not if these duties do not significantly shape the clinical role at present. Could these duties create a tension or conflict? Yes. One need only consider the controversy surrounding the articulation of the role of the genetic counselor: loyalty to client versus representation of societal interests. The lesson of this controversy is clear. The genetic counselor who has divided loyalties is bound to fail to act in the best interests of his client by failing to take adequate account of the client's needs and by meddling with the client's personal integrity and life plans. He is also unlikely to act in the best interests of society by failing to press eugenic and economic concerns to their fullest extent. The tensions and conflicts generated in this one case have already proven damaging to the development and acceptance of medical genetics as a speciality in clinical medicine. With the introduction of public health concepts to clinical medical genetics, scientific and public outcries of the new eugenics have cast grave suspicions on accepting this new medical speciality (see, e.g., the articles in Hilton et al. 1973). Public health duties can indeed generate significant moral tensions in the clinical role. How do or how could public health duties affect the notion of moral responsibility in clinical medicine? Following from the preceding discussion of the state's interest in the clinical role, it seems that public health duties could affect clinical moral responsibility in two major ways. First, if they were incorporated into the clinical role, these duties could effect a reconceptualization of clinical role responsibility. This reconceptualization would have three major facets or consequences. It would compel the clinician to adopt a dual stance as patient advocate and as public health agent for the community. In turn this stance would affect deleteriously, if not violate (destroy), the physician/patient relationship in which undivided loyalty and devotion to the patient are the necessary constitutive elements. In its turn such a blow to the integrity of the clinical relationship would undermine the ethic of role responsibility in the clinical context: moral primacy of the patient's need would be demoted, and mutual respect would dissipate. Public health duties could affect moral responsibility in clinical medicine in a second way. If they were admitted to be duties but were excluded from the clinical role, public health duties could generate two conceptions of moral responsibility in clinical medicine. The admission of two notions of responsibility to the clinical contextrole responsibility for patients and more general moral responsibility for the performance of public health dutiescould easily result in a conflicting and unstable situation. If traditional moral responsibility for public health duties ever 350
Sumner B. Twiss, Jr. took precedence over role responsibility for a patient, the notion of role responsibility and its ethic would be seriously damaged in the clinical setting. If role responsibility took precedence, its integrity and ethic would be sustained. If, however, conflicts resulted in alternative resolutionsindeed, if role responsibility were overridden just oncethe notion of role responsibility and its ethic would be seriously undermined. Even if role responsibility always took precedence, an odd situation would develop. For role responsibility and its ethic would govern the clinical setting, yet their position would be forever precarious, being constantly tested and rejustified in conflict situations involving public health duties. Such a position is not necessarily undesirable, but it might be wiser to opt clearly for the moral concept of clinical role responsibility and thereby support the integrity of the physician/patient relationship. What appears undesirable, by contrast, is the outright rejection of clinical role responsibility in favor of the ascension of the traditional (general) concept of moral responsibility in clinical medicine. The consequent loss of the physician/patient relationship based on the attitudes of loyalty, devotion, mutual respect, and trust would be devastating for the clinical context of medical practice. MORAL RESPONSIBILITY IN BIOMEDICAL RESEARCH The analysis of moral responsibility in biomedical research is complicated by the fact that, strictly speaking, biomedical research applies to both cJinical and noncHnical (laboratory) research contexts. The matter is further complicated by the fact that clinical research applies to both therapeutic and nontherapeutic human experimentation. These facts imply, contrary to the standard view, that the so-called responsible investigator is a systematically ambiguous category (cf. Beecher 1970, p. 79). In biomedical research responsible investigator can be used to refer to at least three types of researchers (roles, relationships, activities): clinical care physician (doctor/patient relationship, experimental therapeutics), clinical researcher (investigator/subject relationship, nontherapeutic experimentation), and nonclinical researcher (biological scientist, basic and applied science). At the very outset it appears that different senses of moral responsibility may well be applicable to the context of biomedical research. At least it cannot be assumed that only one concept of moral responsibility is operative. So much has been written about the ethics of human experimentation that I am reluctant to add to this voluminous literature (see, e.g., Katz 1972). Nonetheless, it is important to note that the rhetoric of responsibility runs through much of the literature about human experimentation and, more generally, medical researchfor example, "the responsible investigator" (Beecher 1970); "moral responsibility of the [medical] scientist" 351
The Journal of Medicine and Philosophy (Sieghart et al. 1973); "the social responsibility of scientists" (Siekevitz 1972); "[biomedical scientists'] responsibility to and for 'the future' " (Gustafson 1970). In spite of this rhetoric, the uses of moral responsibility in this research context have not received systematic attention. I hope that the following inquiry will help clarify these uses (concepts), though little will be said about the notion of informed consent and the like. Experimental Therapeutics It has been claimed that "experiment as part of therapythat is, directed toward helping the subject himself [patient] . . . raises its own problems, but hardly philosophical ones" (Jonas 1974, p. 127). Presumably, the implication of this claim is that medical experimentation in the clinical role does not significantly (conceptually) affect the logic or the morality of the physician/patient relationship. This implication may be true, but it is not obviously true, particularly when one considers the character of clinical role responsibility and its ethic as examined above. To see that the implied claim is not obviously true, consider Fried's assertion that the physician "may certainly not do anything that would impair the patient's health" (1974, p. 50). If experimental therapy involves any risk of harm to the patient, then something must give way: either experimenting on patients or the modality of Fried's assertion. Or consider the claim that clinical role responsibility and its ethic involve the primacy of the criterion of need and exclusive devotion to the patient's best interests. If experimental therapy is administered even partly in the interests of advancing the state of medicine, then it can, in principle and in practice, violate the integrity of the clinical role relationship. At the very least a prima facie tension results for the notion of moral responsibility in clinical care. So "experiment as part of therapy" does raise moral and philosophical problems. What implications, then, does experimental therapeutics have for the notion of (moral) role responsibility in clinical medicine? Logically speaking, a number of answers are possible, though not all are reasonable. At one extreme it might be held that the logic and ethic of the clinical role exclude the administration of experimental therapy, since this would violate an inviolable relationship in the sense of risking the patient's welfare, diverting the physician's attention away from the aims of the clinical role, and encouraging the physician to make indiscretionary judgments about his duties and actions in the clinical role. This position is not reasonable, however, for the following reasons. To begin with, any therapy for a given patient is experimental in a limited sense, for patients do not respond in a uniform manner to medical interventions (cf. Gorovitz & Maclntyre 1975, p. 20). For example, in the administration of penicillin, many patients respond favorably and are cured, while others do not respond at all, and still others respond adversely due to allergic 352
Sumner B. Twiss, Jr. reaction. This is not to say that a legitimate distinction cannot be drawn between standard therapies (well founded in practice) on the one hand and overtly experimental therapies (not yet well founded) on the other, although when the distinction is drawn it is somewhat stipulative and every standard therapy is always open to falsification, so to speak. A second and more important reason for rejecting the extreme position is this. In many cases where the patient is suffering from a hitherto incurable illness or is not responding to standard therapies, the clinician is duty bound by his role to administer an experimental therapy that might benefit the patient. This duty to administer experimental therapy follows from the clinical role responsibility to exercise discretionary judgment in advancing the welfare and best interests of the patient. Of course, this duty is limited by the notion of rational exercise of discretion intrinsic to clinical role responsibility. The duty can be fulfilled properly only if the judgment can be made that the anticipated benefit far outweighs any risk of significant harm to the patient's welfare. Moreover, this duty is constrained by the notion of mutual respect inherent in the role relationship; in weighing benefit versus risk, the physician must consult the patient about whether undergoing the experimental therapy and being subjected to actual or potential risks conform to the patient's conception of having his personal integrity maintained and his life capacities preserved. Whenever possible the patient's informed consent to the administration of the experimental therapy must be obtained, as is the case with all medical interventions. Furthermore, discretionary fulfillment of this duty appears to require the physician to consult with others knowledgeable about the experimental therapy in order to insure as fully an informed discretionary judgment as possible. These two lines of reasoning clearly undermine the rationale of the extreme position regarding experimental therapeutics; they imply that the position is unreasonable and, more strongly, irresponsible. Moreover, they suggest that experimental therapeutics is a legitimate constituent of the notion of clinical role responsibility. Experimental therapy, or at least the offer of such therapy to the patient, seems to be covered (required) by the general and diffuse duties of the clinical role (more on this point later). A more moderate position regarding experimental therapeutics is that admission of experimentation to the clinical role would modify the notion of clinical role responsibility in a significant manner. Such modification would result in important moral tensions or conflicts. The logic of this position is relatively accessible and not unreasonable on its face. The fundamental premise of the position is that the clinical care physician and the physician/investigator represent two different social roles. The difference derives from divergent institutional aims associated with the normative contexts of these roles. The clinical role is concerned with the 353
The Journal of Medicine and Philosophy welfare of the patient, while the investigative role is concerned with achieving a medical advance. Fusing these roles, it is argued, would result in a hybrid clinical role. Now, it should be evident that this hybrid can be construed to yield a clinical role with a primary focus on patient welfare and a secondary focus on medical research and advance. The question is how this reconceptualization of the clinical role would affect the notion and ethic of role responsibility in the physician/patient relationship. The answer seems straightforward in some respects and more subtle in others. First, it appears that this role implies a notion of role responsibility which is not substantially different from the ordinary notion of clinical role responsibility: the other-regarding attitudes and duties remain intact. Second, the ethic of role responsibilityinvolving the criterion of need and the notion of mutual respectseems to be similarly unaffected. Third, it appears that this reconceptualized clinical role not only justifies but also openly encourages the recognition of the duty to administer experimental therapy in relevant circumstances; this duty is clearly enjoined and does not require derivation from other more general and diffuse duties. Fourth, it seems that this role positively encourages the clinician to seek out cases where the patient is likely to have a need and desire for experimental therapy. There is, however, a more subtle and important point to be considered. It seems that the reconceptualized clinical role embodies two fundamental attitudes: devotion to patient and devotion to advancement of medical knowledge. Although precedence may be given to the first attitude, along with its concomitant duties and activities, there is always the possibility that the second basic attitude may come to dominate the clinician's judgment and action in a clinical situation, that is, he may focus his attention on the advancement of medical knowledge to the possible detriment of his patient's best interests. A complex social role with divided loyalties is inherently unstable. In this case, the normative context of the reconceptualized role encourages, or at least allows, the clinician to consider the mesh between two sets of potentially conflicting sets of aims and duties. Although the clinician would still be answerable and liable to the patient for the outcome of his actions, it seems fair to say that this clinical role lacks the strong integrity of the physician/patient relationship, which has the patient's welfare exclusively at its core. Consequently, the ethic of role responsibility may not always rule the day in the reconceptualized, hybrid clinical role. The role lacks sufficient integrity to insure that need and mutual respect will always win out on behalf of the patient. In short, this role does not imply the ethic of role responsibility, as in the traditional clinical role, nor does the ethic imply this modified clinical role. Thus the initial apparently straightforward implications of the reconceptualized are not straightforward at all; in this 354
Sumner B. Twiss, Jr. regard the role is deceptive. The upshot is that admitting experimentation to the clinical role by fusing the roles of clinical care physician and physician/investigator would tend to undermine the notion and ethic of clinical role responsibility. If the premise of the moderate position is correctthat is, if experimental therapeutics requires the fusion of two different rolesthen the implications of this position provide a powerful criticism of admitting experimentation to the clinical role. The premise, however, is false. For in rebutting the first extreme position it was shown how clinical role responsibility morally requires experimental therapeutics in relevant clinical circumstances. And this was shown without having to invoke a second social role of physician/investigator. The conclusion to be drawn from examining the extreme and moderate positions on experimental therapeutics is simply that medical experimentation in the clinical role is both justified and constrained by the notion and ethic of clinical role responsibility. The concept of moral responsibility applicable to therapeutic human experimentation is the notion of clinical role responsibility. Nontherapeutic Clinical Research The question of what sense of moral responsibility is applicable to nontherapeutic human experimentation is a controverssial issue, though few (if any) writers on this type of research are explicitly aware of the controversy. None frame the issue in terms of moral responsibility. The controversy, however, can be elucidated by reflecting on typical descriptions or characterizations of this research. Consider, for example, the following statements by two clinical investigators, Herrman Blumgart and Henry Beecher, and by a lawyer, Charles Fried. First, the statements of the clinical investigators:
In the former [investigator/subject relationship], the main objective is to secure knowledge; in the latter [doctor/patient relationship], the welfare of the patient is the overriding consideration. As stated initially, the former relationship may be characterized as a scientific alliance; the investigator's concern for his subject's welfare should, however, be no less than the physician's for his patient. [Blumgart 1969, p. 47] These relationships [of investigator and subject] are very often identical with those of patient and physician. . . . The doctorinvestigator cannot be any more neglectful of the interest . . . of individuals . . . for the sake of science, than he is of one patient . . . who comes for therapy. [Beecher 1970, pp. 83, 90]
In spite of their descriptive or empirical tone, these statements are 355
The Journal of Medicine and Philosophy intended to be normative characterizations of the investigator/subject relationship in nontherapeutic clinical research. Now for the statements of the lawyer:
To the extent that the experimentation is non-therapeutic, the fact that it is being carried out by doctors should be entirely irrelevant. . . . [T]he usual special doctrines according to which the liabilities of doctors are judged should not be applicable. . . . [I]n non-therapeutic research, the doctor confronts his subject simply as a scientist. [Fried 1974, pp. 26-271
Clearly, these statements are explicitly normative. Why contrast these characterizations of nontherapeutic clinical research? The answer should be obvious. The statements of Blumgart and Beecher suggest a concept of moral responsibility very much akin to clinical role responsibility. By contrast, the statements of Fried suggest the applicability of the traditional concept of moral responsibility, not role responsibility. The question is which notion of moral responsibility is truly applicable to nontherapeutic clinical research. A great deal hangs on getting the correct answer to this question. Perhaps for the first time this inquiry is coming to grips, in a very real sense, with the phenomenon of contextual variance regarding moral responsibility in medicine. A fundamental question that must be addressed is: what is the logical nature of the investigator/subject relationship in nontherapeutic clinical research? is it anything like the physician/patient relationship? if so, does it imply a notion of (moral) role responsibility? if not, what concept of moral responsibility is attributable to the physician/investigator in this type of research? Unlike the role relationship between physician and patient, the investigator/subject relationship is not a special otherregarding interpersonal relationship. The social role of the investigator exists to advance medical knowledge (institutional aim) by means of performing nontherapeutic experiments on the subject (task aims), justified and constrained by basic moral principles and rights (background norms). Prescriptive and limiting rules within the role's normative context include duties to perform (or learn about) prior animal experiments, to gather all relevant medical data, to design scientifically valid experiments, to assess the benefits and risks of the proposed experiments, to obtain voluntary and informed consent from subjects, to avoid inflicting serious harm on subjects, to consult with peers and human experimentation committees, etc. These duties are designed to help insure that the aims of the investigative role will be achievedfor example, acquisition of important medical knowledgeand to protect the health, welfare, and integrity of research subjects. These duties are not strongly otherregarding in the sense of advancing subjects' welfare, though they do 356
Sumner B. Twiss, Jr. prescribe limits for the protection of their welfare. Further, the investigator is expected to make discretionary judgments based on risk/benefit calculus, foresight of immediate and longer-range hazards to subjects, and the like. But these discretionary judgments are neither based on the moral criterion of need (of the subjects) nor predicated on other-regarding attitudes such as those forming the basis for mutual respect in the physician/patient relationship. From this brief analysis it is difficult to avoid concluding that the investigator/subject relationship does not constitute a special role relationship founded on any genuine concern for advancing the welfare of the research subject. As contrasted with parental, familial, and even physician/patient relationships, the duties specifying the investigative role or relationship are preemptive and can be claimed as rights by research subjects. Although they define a sphere of responsibility requiring attention and discretionary judgment, these duties are not moral requirements performed out of the other-regarding attitudes of loyalty, devotion, fidelity, care, and concern (in the deep sense). As a consequence of these and other considerations, one is compelled to conclude that at first view the investigative role does not imply the notion of role responsibility and its corresponding ethic. The case for this conclusion is only prima facie, but it seems wise to search for an alternative notion of moral responsibility. In point of fact, on close and careful reading, most discussions of nontherapeutic clinical research suggest that the traditional or general concept of moral responsibility is operative in this medical context. Thus, an investigator is held accountable for his research activity and liable for harmful results to research subjects and for any failure to perform the duties prescribed by the investigative role. Conditions of liability referring to adequate knowledge, proper intentions, foreseeability, causal connections between actions and consequences, etc.are very much in evidence. Even those who want to model the investigator/subject relationship according to the physician/patient relationship tend to employ categories associated with the traditional concept of moral responsibility. For example, Beecher writes about foreseeable risks and possible hazards, and even goes so far as to cite I. Ladimer: "The safeguards employed to protect the subject can be generalized into a set of precepts similar to that governing malpractice, to serve as a guide. Thus, willful or negligent deviation, resulting in injury, would constitute a basis for liability" (Beecher 1970, p. 82). Or, to refer Blumgart, in spite of his interest in analogizing investigator/subject to physician/patient he allots considerable space to the Nuremberg Code, the Board of Regents of New York State's decisions on human experimentation, state laws, etc., and employs the categories of consent, negligence, untoward results, knowledge of risks, discernible harm, and the like (Blumgart 1969, pp. 47 ff.). These
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The Journal of Medicine and Philosophy quotes and references are cited for their rhetorical force; it is difficult to speak about moral categories applicable to nontherapeutic clinical research without invoking at the same time conditions relating to descriptive, normative, and general moral responsibility. The alternative notion of moral responsibility which I was seeking for this type of research, therefore, appears to be the traditional concept of moral responsibility. At this point it seems that one should settle simply for the applicability of this traditional concept to the nontherapeutic research context in clinical medicine. There is, however, one sticking point: the claim that even nontherapeutic medical research requires that the investigator be a physician and that any physician/investigator bears responsibility for the subject's welfare is not so implausible. Does clinical role responsibility apply after all to the physician/investigator in nontherapeutic research? Or is it better to say with Otto Guttentag that "experiments done not for the immediate good of the experimental subject but for the welfare of mankind [shjould be performed only by experimenters who are not simultaneously responsible for the clinical care of these experimental subjects" (Guttentag 1968, p. 212)? Guttentag indicates the correct approach. To see this one need only reflect on the implications of answering the first question affirmatively. An affirmative answer to the first question, admitting the applicability of clinical role responsibility, would have the following results. Two notions of moral responsibility would be operative in nontherapeutic clinical research: the traditional concept and role responsibility. If this were the case, then the question arises: which notion would take precedence? if the traditional concept, what need would be served by role responsibility? Answer: greater protection for the welfare of the research subject. This answer, in turn, raises another question: would not the application of role responsibility, in devotion to the subject's welfare, prohibit any nontherapeutic experimentation carrying any degree of risk, no matter how minimal? Given the notion and ethic of role responsibility, the answer seems to be yes. Thus, qua clinician the researcher could never inflict a nontherapeutic experimental procedure on a subject qua patient. The result of this line of reasoning would be an absolute prohibition on the physician qua clinician ever performing nontherapeutic experiments. This prohibition represents a viable policy for the clinical role. Note, however, that nontherapeutic research could still be done by physicians not acting in the clinical role and not bound by clinical role responsibility. If the notion of role responsibility were to take precedence, the same line of reasoning would ensue. But then what need would be served by the traditional concept of moral responsibility? Answer: to hold the physicians not acting in the clinical role accountable and liable for nontherapeutic experiments and their outcomes. Thus, this brief excursus supports the conclusion of the original analysis of moral 358
Sumner B. Twiss, Jr. responsibility for nontherapeutic clinical research. The physician/ investigator is bound only by the traditional concept of moral responsibility and not by clinical role responsibility in this context. Nonclinical Research The analysis of the concept of moral responsibility in nontherapeutic clinical research has immediate implications for the examination of moral responsibility in the context of nonclinical biomedical research. If clinical role responsibility is not applicable to nontherapeutic clinical research, then it can hardly be applicable to nontherapeutic nonclinical research. Moreover, the applicability of the traditional concept of moral responsibility in the preceding research context suggests that the traditional concept or some variation (extension) of it will probably be applicable to nonclinical biomedical research. There have been some explicit discussions of moral responsibility in nonclinical biomedical research, most recently in connection with recombinant DNA research. For convenience, recombinant DNA research (molecular genetics) will be used as an occasional example in the following discussion since it raises archetypal issues about the meaning(s) and criteria of moral responsibility in basic (biomedical) research. Even before the recombinant DNA controversy, scientists and humanists alike discussed notions of moral responsibility in connection with basic research. Issues raised but not resolved included the following: is biomedical research in itself morally neutral? does the researcher bear moral responsibility for either the acquisition of knowledge or its social applications (or both)? to whom is the researcher morally accountable and liable: the public? the present generation? immediate future generations? remote future generations? (cf. Gustafson 1970, pp. 156-62). Although these questions will be taken up, it should be made clear that the focus is on determining what concepts and problems of moral responsibility are logically germane to nonclinical biomedical research. Following from earlier sections of this inquiry, a number of candidates need to be consideredfor example, role responsibility, traditional concept of moral responsibility, ethic of role responsibility, ethic of long-range responsibility, together with certain categories used in the relevant literature such as social responsibility or obligations, responsibility or obligations to future (unborn) generations, etc. It has already been stated that clinical role responsibility is not applicable to basic biomedical research. However, this denial does not settle the question of whether some other notion of role responsibility is applicable to the researcher in this context. No doubt this question is not often raised because the researcher qua researcher is not usually conceived in relationship with others. Yet it is hard to deny that the researcher or scientist acts in a social role. So inquiring about role respon359
The Journal of Medicine and Philosophy sibility is not illogical. After all, researchers have some sort of relationship with their colleagues, laboratory technicians, employers, the public (perhaps), future generations (perhaps). Indeed, one working group of scientists in England claims that just as parents have special obligations (role responsibility) to their children and physicians to their patients, so also do researchers have special obligations (role responsibility) to others in society (Sieghart et al. 1973, pp. 10-13). A sophisticated analysis of the social role of the biomedical researcher should perhaps draw strong distinctions between science and technology and between basic research and applied research. For convenience, however, I shall speak rather loosely of research in biomedical technology. Biomedical technology has two aspects, one theoretical, the other technical. The theoretical aspect refers to basic research essentially aimed at acquiring scientific (medical) knowledge. The technical aspect refers to applied research, that stage lying between laboratory research and clinical development and subsequent experimental applications of scientific knowledge (Twiss 1976, p. 23). Briefly, the social role of the researcher is shaped by a variety of aims, ranging from specific laboratory experiments (task aims) and acquisition of scientific knowledge and innovations in biomedical technology (institutional aims) to background moral principles and rights that justify and constrain the other task and institutional aims. Prescribed rules within this role specify certain duties that check the researcher's exercise of power by setting limits on what he can do to achieve the role's aimsfor example, duties to avoid research aimed at the development of instruments for killing or injuring persons, to avoid research having the high probability of being applied with very harmful consequences, to avoid research whose conduct presents hazards to others that outweigh anticipated benefits, to undertake research for which there is an urgent social need, to warn the public about hazardous, injurious, or intentionally lethal research being contemplated or already under way, etc. (cf. Sieghart et al. 1973, pp. 13 ff.; Cohen 1977). These duties are otherregarding to the extent that they serve to protect the public welfare, that is, the welfare of society and even the larger human community. Further, the normative context of the rolespecified by these aims and duties clearly requires the researcher to reason and act with discretion. This brief sketch of the social role of the researcher presents the elements of a prima facie case for the ascription of role responsibility. The case is only prima facie, however, because it is not clear that the researcher's duties are moral requirements, nonpreemptive in character, that derive logically from other-regarding attitudes in virtue of a special role relationship akin to parent/child or physician/patient relationships. Available discussions of moral responsibility in scientific research, including reflections by researchers themselves, appear divided on the question 360
Sumner B. Twiss, Jr. of the logical character of the researcher's duties. Some maintain that these duties are moral requirements that arise out of a special relationship (between researcher and society) characterized by the attitudes of trust, stewardship, devotion, and loyalty. For example, Sieghart's group holds "that scientists are in one of those special positions which give rise to special obligations" so that there are "particular moral responsibilities of scientists which are not enforced" (Sieghart et al. 1973, pp. 10-11). For another example, at a New York Academy of Sciences conference, "The Social Responsibility of Scientists," Van Potter typified the view of some participants by stating that "scientists have a responsibility to society in their role as scientists over and above their role as responsible citizens" (Potter 1972, p. 200). Yet at the same conference other scientists were inclined to link the notion of their social responsibility to the concept of the rights of the public and therefore to preemptive sociomoral duties. In the recombinant DNA debate, Daniel Callahan explicitly articulated a position contrary to that of Sieghart's group, Potter, and many others, when he stated: "The scientist is to be held to ordinary standards of moral responsibility and accountability. . . . There is no special ethic of responsibility applying to scientists" (Callahan 1976, pp. 2, 4). The issue should not be left unresolved. There are a number of considerations against admitting the notion (and ethic) of role responsibility to the context of nonclinical scientific research in medicine. First, since the notion of role responsibility does not appear to apply to nontherapeutic clinical research, precisely because the special therapeutic relationship is absent, it would be odd to find it suddenly present in nonclinical research which also excludes the therapeutic relationship. To argue for its applicability to nonclinical research, after denying its applicability to nontherapeutic clinical research, would be inconsistent. Second, the claim that the social role of the researcher generates a role relationship logically on par with the physician/patient relationship is not convincing. The analogy between researcher/society and physician/patient appears to be a forced analogy, if not an outright category mistake. Third, so many researchers still maintain a belief in the moral neutrality of their work that it seems implausible to argue that the role of the researcher implies a notion of role responsibility. If this implication is correct, then why do the majority of researchers fail to see it? For these and other reasons, it appears that the notion of (moral) role responsibility is not operative in the context of nonclinical biomedical research. This implies, of course, that the ethic of role responsibility also is not applicable to this context. What, then, do (some) researchers mean when they talk about their social responsibility and their social obligations? Under what concept of moral responsibility do their duties logically fall? In short, what concept of moral responsibility is applicable, both descriptively and normatively, to nonclinical biomedical research? One plausible answer is provided by 361
The Journal of Medicine and Philosophy Callahan: "Ordinary standards of moral responsibility and accountability" (1976, p. 4). A study of the literature about the social responsibility of scientists supports Callahan's claim, but only in part. Recent discussions about the impact of technology on the environment and about controversial biological research suggest that the traditional (ordinary) concept of moral responsibility must be reshaped in the research context. Another plausible answer is provided by thinkers like Hans Jonas: "the indefinite future, rather than the contemporary context of action, constitutes the relevant horizon of responsibility. This requires imperatives of a new sort" (1974, p. 11). A study of the literature about the environmental crisis and, more especially, about research in molecular genetics supports the Jonas-type claim, but again only in part. Study of the relevant literature, then, suggests that two concepts of moral responsibility may be applicable to nonclinical biomedical research, depending on the specific type of research activity at issue: the traditional concept of moral responsibility and another extended concept associated with long-range responsibility. This working hypothesis is not meant to deny that these two concepts may be logically related, for example, the second being a logical extension of the first. What is intended, however, is the following. The uses of social responsibility and social obligations by researchers are equivocal: sometimes their use conforms to the logic of the traditional concept of moral responsibility; at other times to the logic of long-range responsibility. It is wise to heed the counsel of James Gustafson in this regard: "The ascription of moral responsibility, insofar as it is bound to causal responsibility, to and for future scientific and historical developments is, indeed, no simple matter" (1970, p. 162). The case for the applicability of the traditional concept of moral responsibility to biomedical research rests on two claims. First, as Callahan puts it, researchers are held to "ordinary standards of moral responsibility and accountability" (1976, p. 4). Second, no special ethic of responsibility is applicable to researchers under ordinary circumstances. Such modest claims as these are put forward by researchers who are in the moral vanguard of the scientific community (see, e.g., the articles in Siekevitz 1972). Their point in making these claims is to inform colleagues that the research and development of biomedical technology, whether at the stage of basic or applied research, are not morally neutral enterprises, as believed by many. Further, the researcher's role is such that he bears moral responsibility for his work. The validity of these points is unquestionable and follows from the previous analysis of the social role of the researcher. The concept of moral responsibility implied by these claims is the traditional one. Thus, biomedical researchers are morally responsible in the sense that they are committed to pursue desirable ends (aims of the role) and are constrained in their activity by 362
Sumner B. Twiss, Jr. prescribed rules (duties of the role). As a consequence, researchers are accountable for their activities and are liable for harmful outcomes and for the failure to perform their duties. Presumably researchers are held to account and assessed for liability not only by their peers (scientific community) but also by public mechanisms of social control (local, state, and national); after all it is the public who may be let down (by lack of commitment to aims) or even harmed (by failure to fulfill duties and/or negligence). The capacity requirements, conditions of liability, and excusing conditions are clearly in force. Moreover, the conditions that give rise to the researchers' moral (normative) responsibility characteristically include both power/competence (scientific know-how) and the social role of scientific, particularly biomedical, research. This account is by no means complete, for it contains an important ambiguity: What is meant by the "outcomes" of biomedical research for which a researcher is liable? Do outcomes refer to hazards intrinsic to the conduct of the research, or injurious misapplications of research results, or the failure to provide benefits to meet an urgent medical need, or all of the preceding? The answer to this question is both simple and complex. The simple answer is that outcomes refers to all three categories. But the reasons why outcomes refers to these categories are different in each case; in this sense the answer is complex. First, a researcher is liable for intrinsic hazards to the extent that these are foreseeable and are caused by his activity. Furthermore, he may be liable for hazards by virtue of his powerful position in society, if position in society counts as a condition of vicarious liability. Second, a researcher is liable for injurious misapplications (social abuses), insofar as they are foreseeable, caused by his activity through a chain of events and possibly intended by him. Again, vicarious liability may also be applicable to this category. Finally, a researcher is liable for the failure to provide, or at least try to provide, needed benefits through research, inasmuch as the failure is intended (or due to negligence) and is caused by his intended (or negligent) act of omission. Once again, vicarious liability may be applicable, particularly if the researcher's position in society is predicated on a commitment to do beneficial research and a duty to meet urgent needs if possible. This analysis clarifies the ambiguity, but it raises three other important questions. First, should a researcher be held vicariously liable for the outcomes of his research activity? Second, what are the criteria or limits of foreseeability? Third, how important is the category of negligence in the research context? These issues are significant for two reasons. First, they articulate current and exigent controversies. Second, their resolutioninsofar as they can be resolvedleads ineluctably to an extension of the traditional concept of moral responsibility. Let me now document these two claims and answer the three questions posed. To begin with, anyone who models the concept of moral responsibil363
The Journal of Medicine and Philosophy ity according to the concept of legal liability in the realm of public policy will be likely to argue for the moral validity of vicarious liability on the part of the researcher (see Hart 1968, pp. 215 ff.), One who does not appeal to this model will be likely to deny the moral relevance of vicarious liability (see ibid., p. 226). Since I agree with Hart and Honore in accepting vicarious liability as a noncausal ground of moral responsibility, I am inclined to hold the researcher vicariously liable for the outcomes of his research activity (Hart and Honore 1959, pp. 60-61). Thus, I propose that the researcher's position in society be considered a condition of (moral) liability. To turn to the second question, if a scholar is familiar with and influenced by the analytic and predictive powers of technology assessment, then he is likely to have extensive criteria for foreseeability (see Baram 1973). The opposite is true here also. Since predictive methods have been applied to the biomedical field with prospects of success, I am inclined to apply rather extensive criteria of foreseeability to the researcher (see, e.g., Jonsen 1973). How one answers the first two questions is likely to influence his answer to the third question about negligencethat is, the acceptance of vicarious liability and extensive foreseeability result in a broadening of the importance of negligence in the research context. This is a consequence that I endorse. Even those who profess the traditional concept of moral responsibility for the research context tend to elaborate far-reaching criteria for liability, particularly in regard to negligence and foreseeability. Callahan is a case in point. He simultaneously denies broadening the traditional concept and yet prescribes what he calls the "historical principle" (relevance of past history) and the "imagination principle" (projection of remote consequences) as criteria of foreseeability (1976, pp. 3-4). In doing this, Callahan admits that he is "thereby laying a moral burden of responsibility upon the basic researcher": "He [the researcher] must, in our time, try to imagine ahead in a way Mendel or Bohr were not morally required to" (1976, p. 4; his italics)! It seems, then, that answering these questions about the conditions of the researcher's liability compels the articulation and application of another more extensive concept of moral responsibility for nonclinical biomedical research. This concept is logically bound up with what I earlier called the ethic of long-range responsibility. Before turning to a brief treatment of that ethic, however, a few loose ends need to be tied up. First, is the traditional concept of moral responsibility applicable to nonclinical biomedical research? In spite of the quick and necessary move to extend that concept, it is very clear that the traditional concept is applicable to many research activities in this context. Indeed, in using the language of social responsibility, most researchers are employing precisely this traditional concept. The work of Sieghart's group is a good example. In discussing the social responsi364
Sumner B. Twiss, Jr. bility of the researcher, they discuss the grounds for "refusing to do work" (because of injurious misapplications), "choosing one's work" (because of urgent need for a technology), "thinking out the consequences" (especially harmful social results), and "informing the public" (i.e., warning others about hazards and social abuses) (Sieghart et al. 1973, pp. 13-14). Is the researcher solely liable for the injurious misapplications of his research? The preceding analysis is misleading inasmuch as it focuses exclusively on the researcher. It seems clear that Gustafson is correct in saying that researchers "often rightfully plead that their own control over subsequent uses of knowledge is very limited" (1970, p. 160). Certainly, the researcher must share in the liability for injurious misapplications if they could have been forseen. But it is equally certain that one cannot lay an undifferentiated liability on the researcher alone for subsequent social abuses of his work. This is so for two reasons. First, the abuser is liable for such misapplications, since he is directly bringing them about. Second, the public policymaker must take responsibility for averting the abuse of research results; this is part of his role and he is liable for the outcome of preventive measures. These two reasons do not exculpate the researcher entirely, but they suggest that liability for the injurious misapplications of research results is shared with the abuser and the public policymaker. It is now appropriate to return to a brief discussion of the applicability of the extended notion of moral responsibility to nonclinical biomedical research. As suggested earlier, increasingly sophisticated predictive methods are being developed and applied successfully to the outcomes of scientific research, including biomedical technology. This predictive power expands the moral liability of the researcher and supports the claim that an extended concept of moral responsibility is applicable to biomedical research. The recognition of this claim and concept has a number of important implications, not all of which can be explored here. However, a few remarks are in order. First, it is possible to hold the researcher liable for delayed second-order consequences intrinsic to the conduct of the research, that is, potential or actual hazards associated with the research activity. Second, it is proper to hold the researcher liable (e.g., negligent) for delayed second-order consequences extrinsic to the research and involving the subsequent actions of other agents to the extent that the research provides opportunities for harmful exploitation which can be predicted (foreseen) at the time the research is done (i.e., injurious misapplications predictable by the methods of technology assessment). Third, the applicability of this extended concept implies that the researcher must abide by the ethic of long-range responsibility. In the context of nonclinical biomedical research, the ethic of longrange responsibility holds the researcher liable for using reason and 365
The Journal of Medicine and Philosophy discretion in performing two principal duties. First, the researcher is duty bound to pursue his research activity with both caution and restraint if he is ignorant about possible delayed hazardous outcomes intrinsic to the very conduct of the research. For example, in the case of recombinant DNA research, which may involve biohazards of grave risk to man and the environment, the researcher discharges this duty by operating under stringent guidelines that make an assumption contrary to fact or what is known, namely, that recombinant organisms are infectious disease agents. Second, the researcher is duty bound to acquire relevant predictive knowledge about the probability of his research being misused with injurious consequences to others in the near or remote future, before he engages in the research and/or releases research results. Again, in the case of recombinant DNA research, the researcher discharges this duty by obtaining estimates of the probability of initiating a resurgence of biological-warfare weapons development or a new eugenics movement with a sophisticated technological base. Assuming these probability estimates are low, then the research may be pursued. These duties clearly imply that nonclinical biomedical research must be preceded by an evaluation of both intrinsic risks (hazards) and extrinsic risks (social abuses). Thus, in the context of this research, the ethic of long-range responsibility appears to coincide with the scientific maxim, "do not undertake an important experiment whose results cannot be evaluated." Here is wisdom in the true sense; such is the character of genuine scientific responsibility. MORAL RESPONSIBILITY IN MEDICAL ADMINISTRATION AND PLANNING Analysis of moral responsibility in the context of health-care (medical) administration and planning involves reference to roles and activities quite different from those characteristic of medical practice and research. In medical practice the focus is on the immediate provider of medical services to the patientthe clinician within the role relationship of physician and patient. In medical research attention is concentrated on the investigator or researcher interested in advancing scientific knowledge and biomedical technology. By contrast, medical administrators and planners (policymakers) are concerned mainly with the proper allocation of resources to the clinical and research contexts in medicine. Their social roles dictate concern for shaping the economics of medical care and assigning priorities to optimal forms of health-care delivery and promising avenues of biomedical research. As Fried puts it, these roles are committed "to optimize scarce resources so as to reduce mortality, morbidity or some other index of welfare in the general population as a whole" (1974, p. 117). Needless to say, these statements sketch an 366
Sumner B. Twiss, Jr. oversimplified picture of the administrative and planning context. This picture must be refined, but exhaustive accuracy cannot be attained here. Within the limited scope of this inquiry, the best that can be done is to examine the concept(s) of moral responsibility logically applicable to hospital administration on the one hand and governmental planning for the research and development of biomedical technologies on the other. And even this examination will be limited mainly to the role of government planners in relation to biomedical research. In defense of this limitation, it should be observed that policymaking about biomedical research raises issues that are paradigmatic for the use of moral responsibility in medical administration and planningnamely, issues about the macroallocation of scare resources in the biomedical field. Hospital Administrator Before elucidating these issues, however, it is important to examine the role of the hospital administrator, for it seems to suggest the applicability of two alternative (and conflicting) notions of moral responsibility in the administrative and policy context of medicine. The social role of the hospital administrator is shaped by the following sorts of aims (in increasing order of generality): to provide medical services needed by individual patients who are being treated by clinicians in a hospital setting (task aims); to make decisions about capital improvement and expansion, staffing and personnel, and optimal utilization of available resources (institutional aims); to adhere to basic moral principles and rights, especially regarding fairness and equal access (background aims). This social role is further defined by the following sorts of duties: to aid clinicians in ministering to the health of patients, to foster or at least protect the moral integrity of physician/patient relationships within the hospital setting, to serve the medical needs of the community in which the hospital is located, to allocate scarce resources as efficiently and as fairly as possible, etc. The interesting and crucial question is whether these duties stem from other-regarding attitudes of devotion, loyalty, fidelity, and concern for the welfare of patients. If the answer is affirmative, then the administrative role may employ a notion of (moral) role responsibility akin to that of the clinical role. If the answer is negative, then either the traditional concept of moral responsibility or the extended notion of long-range responsibility is likely to be operative. An affirmative answer is not entirely implausible for, as Fried points out, hospital administrators at least partially adhere to the clinical role or the model of personal medical care: "Like private physicians they continue to hold themselves out as offering their traditional services and the only allocational devices resorted to are queuing (waiting lists) and financial barriers" (1974, p. 129). Moreover, a case may be made for claiming
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The Journal of Medicine and Philosophy that the hospital administrator perceives his duties as moral requirements arising out of the other-regarding attitudes associated with the clinical role. I have only anecdotal evidence to support such a case, but even so it bears intuitive plausibility. Assuming that supporting evidence could be acquired systematically (empirically), then it would imply the applicability of clinical role responsibility and its associated ethic. However, even the intuitive plausibility of this position is weakened significantly by the following consideration. First, the institutional aims of the administrative role can conflict, both in principle and in practice, with the implications of the concepts of total devotion and loyalty that are logically associated with the clinical role and clinical role responsibility. In fact, careful reflection of the administrative role reveals a divided loyalty between ministering to the patient's welfare and making optimization decisions on behalf of the hospital. As has been shown earlier, divided loyalties ultimately undermine efforts to maintain the integrity of the physician/patient relationship. Second, the administrative role incorporates a duty of service to the community that is logically equivalent to public health duties discussed in the clinical context. Insofar as public health duties tend to undermine the notion and ethic of clinical role responsibility, so also does this administrative duty of service to the community. Third, the administrative role explicitly includes a duty to foster or protect clinical physician/patient relationships within the hospital setting. Rather than implying that the administrative role gives rise to such a relationship, this duty suggests that a role other than the administrative generates physician/patient relationships in the first place. Fourth and finally, the position trades on a false analogy between the clinician's role responsibility to his patient and the administrator's role responsibility to his collective patientthe community. Not only does this analogy beg the question at issue, it has also been debunked many times throughout the course of the present inquiry. The conclusion to be drawn from these considerations is that the role of hospital administrator neither implies nor employs a notion of (moral) role responsibility. Another concept of moral responsibility, therefore, must be applicable to the administrative role. Without belaboring the issue, it appears that the traditional concept of moral responsibility is serviceable. To argue for the applicability of the more extended concept of long-range responsibility seems otiose. The sole ground for pursuing this line of argument appears to be the following consideration. In having to make decisions about capital improvement and expansion, the hospital administrator thereby is committed to determining what recources will be available to future generations. And this commitment, so the argument goes, implies the applicability of an extended notion of moral responsibility. The argument, however, does not wash, for it rests on a false premise: 368
Sumner B. Twiss, Jr. that the hospital administrator ought to and therefore can affect the welfare of future generations. The premise of this argument is simply false. First, to aim at capital improvement is unlikely to affect future generations in any important sense of future. At most, one generation beyond the present one may possibly be affected; this hardly implies the need for or applicability of the concept and ethic of long-range responsibility, which seems more relevant to moderately remote or even very remote future generations. Second, it is not at all obvious that the administrative role entails a duty to serve anything more than "the medical needs of the community in which the hospital is located," that is to say, the medical needs of the physically and temporally proximate community. Consequently, it is not evident that the administrative role either requires or implies any notion of moral responsibility other than the traditional concept, which is limited to "an ethical universe of contemporaries." Government Planner Analysis of moral responsibility in the context of governmental policymaking about medical and health care is complicated by the fact that the social role of the government planner in this area is not well defined or understood. What little can be said about the role is this: the social role of government planner or policymaker seems rather far removed from the role of clinician, medical researcher, and even hospital administrator. For the planner almost exclusively makes priority and allocational decisions about the use of funds for biomedical research and development and for the delivery of health care to the population. My interest in the planner's role focuses on decisions regarding the research and development of biomedical technology, particularly how these decisions affect the resources available to present and future generations. My strategy in trying to clarify the planner's role and elucidate relevant notions of moral responsibility involves working through certain issues about the macroallocation of scarce resources for the research and development of biomedical technology. For obvious reasons the problem of scarce resources has a direct bearing on the planner's setting priorities for the research and development of biomedical technologies. Moreover, since many of the technologies will result from biomedical research, the planner's macroallocational decisions about the distribution of funds to support this research represent a particularly exigent area of concern. His decisions will strongly influence the directions of biomedical research and therefore will determine in large part whether certain technologies will ever exist. There are a number of considerations that indicate that the social role of the government planner has not yet been finally shaped. First, it is
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The Journal of Medicine and Philosophy not uncommon for reflective members of the biomedical community to apply to biomedical policymaking George Bernard Shaw's caustic observation that medical treatments are governed by fashion just as are clothes (see, e.g., Zuckerman 1972). The same observation is also made from the standpoint of technology assessment: biomedical interests and available capital for these interests tend to run in tides (cf. Twiss 1976, p. 33). Second, it is not uncommon for reflective clinicians and researchers to assert that much biomedical research has little, if any, bearing on the prevention of disease or the improvement of health or medical care for the public (see, e.g., Burnet 1971). The point here is that much policymaking about biomedical research may well divert significant resources from the delivery of presently available modes of health care. A related point is that the benefits of this research may never redound to the welfare of the investing generation but only to their successors. Third, it is sometimes observed by reflective physicians and economists alike that the direction of biomedical research and technology is often controlled by vested interest groups in the biomedical community, rather than by rational planning undertaken by government policymakers. All three of these considerations indicate the importance of clarifying the social role of the government planner in terms of evaluative aims and prescriptive rules. Three generic features of the macroallocation of scarce resources may help to specify the role of the government planner vis-a-vis decisions about biomedical research. First, macroallocations can affect the welfare of an entire class of (potential) patients and can determine virtually whether or not certain diseases or illnesses will receive attention and to what extent. Thus, at the macroallocation level it is possible to discriminate against certain classes of patients, certain diseases, and even categories of diseases. Second, at least in principle, macroallocations involve rational planning and deliberationthey are not made on an ad hoc basis. Thus, at the macroallocational level it is possible to make decisions according to carefully formulated and rationally defensible norms. Third, by their very nature macroallocations are matters of public policy; and decisionmakers at this level are accountable and liable to large constituencies, often at the state or national scene. The important point that emerges from this brief characterization of macroallocation is the idea that there is a dialectical process between the constituency's claims of right to fair access to available resources for its medical needs on the one hand and the government planner's duty to create an allocation system that distributes resources efficiently and justly to meet these needs on the other. This idea is important because it helps to specify the social role of the planner. Briefly, the social role of the government planner exists to achieve the following evaluative aims:
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Sumner B. Twiss, Jr. to establish budgets and allocate funds for the research and development of biomedical technology (task aims), to serve the health and medical needs of the population in both the present and the future (institutional aim), and to adhere to norms of efficiency and equity (background aims). Without belaboring the obvious, prescriptions within the role include duties to identify needed biomedical technologies, to encourage the research and development of these technologies, to allocate funds efficiently and fairly, to maintain adequate capital for future medical needs, etc. The implications of the normative context of this social role are myriad; however, only a few can be mentioned here. First, this context implies that the sole norm of Pareto efficiency is not adequate for macroallocation decisions regarding biomedical technology, since this norm is a weak criterion from the point of view of justice (see, e.g., Varian 1975). Second, efficiency must be constrained by a norm of equity cast in the form of justice as fairness; in conditions of scarcity, equity requires equal access to the resources and tolerates inequalities in macroallocation only if these benefit the least advantaged (Rawls 1971, chap. 2; Twiss 1976, p. 35). Third, equal access negates macroallocations that systematically discriminate against certain diseases within the population. And, as one contemporary author puts it, "so it goes" or "and so on." The normative context of the government-planner's role clearly implies the applicability of the traditional concept of moral responsibility. Thus, the planner concerned with proper macroallocations for biomedical research is morally responsible in the sense that he is committed to pursue desirable ends (aims) and is liable for failure to perform the duties specified. That is, he is accountable and liable to the public for creating an allocational system that distributes resources efficiently and fairly in the research and development of biomedical technology. Two points made in the preceding analysis raise the question of whether an extended concept of moral responsibility is also applicable to the context of planning macroallocations for biomedical research. The first point was that the benefits of this research may only redound to the welfare of successive generations. The second point referred to the articulation of the planner's institutional aim: to serve the health and medical needs of the population in both the present and the future. Hence, the poignant question: do present planners have any moral responsibility to allocate funds to research and develop biomedical technologies for the benefit of future generations? Upon reflection it can be seen that the ethic of long-range responsibility does not provide an answer to this question. So we are faced with a notion of extended responsibility different from the one encountered in previous contexts. Although there is a growing philosophical literature on obligations to 371
The Journal of Medicine and Philosophy future generations, most of it is irrelevant to the present question. This question is concerned with an extended concept of normative responsibility for a positive duty, rather than an extended concept of descriptive responsibility involving liability for a harmful outcome. Given the planning or macroallocation context, it seems plausible to frame the question in terms of equity or justice between generations. Thus, one approach to tracking the issue raised by the question is provided by John Rawls's theory of justice which cannot be detailed here. Suffice it to say that within a theoretically powerful contract theory Rawls develops a notion of justice which states in part that inequalities are to be arranged so that they are to the greatest benefit of the least advantaged. To this he adds the following assumptions: the long-term prospects of the least advantaged extend over future generations, and the parties to the contract represent family lines with lines of sentiment between successive generations. The result is the recognition of duties incumbent on each generation to preserve the gains of culture and civilization, with this savings coming in various formsfor example, net investment in technology, education, etc. (Rawls 1971, pp. 284 ff.). The problem is to determine a just savings principle, a rate of savings. Though Rawls admits that it is not possible to define precise limits for this rate, he suggests that there are ethical constraints that permit limits to be determined by each generation. For example, one asks what is reasonable for members of adjacent generations to expect of one another, analogous with parents balancing goods for their children against what they believed they were entitled to receive from their own parents. And one adopts the standpoint of the least advantaged in each generation and requires that their expectations be maximized, subject to the savings that they would acknowledge. The upshot is that different generations have duties (of justice) to future generations seriatim. The implications of this position for the question about the extended moral responsibility of planners are obvious. First, they may well be duty bound to allocate funds to research and to develop biomedical technologies for future generations to the extent that this allocation sits well with the least-advantaged group in the present generation. Second, this line of reasoning mitigates the negative force of the observation that such research may never redound to present investors but only to their successorsthe point is that the performance of an extant duty on the part of government planners is at stake. Third, this line of reasoning seems to imply that an extended concept of moral responsibility is indeed applicable to the planning context. The government planner is accountable and liable for serving the medical needs of the population in the future by performing his duty to allocate resources (efficiently and fairly) to the research and development of biomedical technology for use by future generations of the population.
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Sumner B. Twiss, Jr. CONCLUSION This inquiry attempted to clarify the language of moral responsibility in medicine. It also tried to contribute to the ethics of responsible action in medicine. If successful on both fronts, then the present work has advanced the conceptual and normative dimensions of an important area in the philosophy of medicine.
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