An
Assessment of Rights Theory in a Specific Health Care Context.
Newham
General Hospital,
Glen
Road, Plaistow,
London.
mailto:edwardscath@yahoo.co.uk
I will assess the strengths and weaknesses of Rights Theory when applied to the following problem, a case which as a physician I was involved in recently:
P
was an in-patient with a heart problem. We strongly suspected he had AIDS, and
he eventually agreed to an HIV test. One day after the test was taken he died
suddenly. We received the HIV result (positive) two days after his death. Although
HIV was not the direct cause of his death it was certainly the reason he
had heart problems. There had been no indication from P of his wishes regarding
telling his friends and family. In fact for two weeks he had denied any risk
factors for HIV.
A
week after his death P’s sister came over from South America and asked to see
me. She wanted to discuss the cause of P’s death. She also wanted to know if he
had AIDS. Before seeing her I was told by my representative legal body that: my
duty of confidentiality to P persists after his death; and I may talk to her
about the cause of death only as it appeared on the death certificate (which
did not mention HIV). This position stems from the World Medical Association’s
International Code of Medical Ethics, which states that confidentiality is an
absolute requirement, even after the patient’s death (Gillon 1986, P106, Kuhse
in Bioethics 1999, P493).
To
examine Rights Theory as it applies to this case, a right must first be
defined. A right is a justified claim that individuals and groups can make upon
others or upon society (Beauchamp and Childress 1994, P69). Rights provide
protection of life, liberty, expression and property, as first set out by John
Locke. Moral, legal and institutional rules are created to distinguish valid
from invalid rights. The right requires action or restraint from others – that
is to say, a duty follows from a right. Gillon describes different sorts of
right – legal and institutional, universal moral rights and rights arising from
special social relationships – the right of confidentiality falls into the
latter category (Gillon 1986, P54).
The
case described raised the following moral questions: Firstly, does a dead
patient have a right to confidentiality? If so, then the doctor has a duty of
confidentiality to him. If not, then the doctor should concentrate on the
welfare of his relatives. His sister appeared to suspect already that he had
AIDS and she had travelled thousands of miles to know the truth. Does his
sister have a right to know, and should the Kantian ideal of truth prevail?
Should the ‘public health’ issue negate the rights of P – ie should his sexual
partners be informed? Does anyone (including the health care professionals)
have a right to know P’s HIV status since he himself did not know before his
death? Finally does the doctor have rights - for example the right to tell the
truth?
Clearly
some of these issues are contradictory, and therefore it is appropriate to look
at the strengths and weaknesses of the moral theory in the context of this
example (references for next two sections: Almond in Singer, 1991; Beauchamp
and Childress, 1994, P69-77).
Firstly, rights have been thought of as moral
trumps when an ethical question is in dispute – this was first set out by
Ronald Dworkin. In this way a right contrasts with utilitarianism, because the
rights of the individuals involved trump the overall consequences. So a
utilitarian might say that total happiness is maximised by P’s sister and
sexual partners knowing the truth: however, the rights of P could trump this
position.
Secondly,
every individual involved in this case has been considered in terms of his or
her rights and therefore it can be seen as an appropriate moral theory
for the health care situation. Also Rights Theory allows the ‘victim’s’
viewpoint to be the focus. In this example it protects P from harm, who is dead
and therefore cannot put forward his case. Linked to this is the viewpoint that
rights can be applied to all beings, including dead people, embryos and
foetuses, and animals. This raises the question of whether a dead person is a
being, which is beyond the scope of this essay.
Rights
and obligations are correlative – an obligation flows from a right, and this
provides clarity in action. For example if it can be agreed that P has a right
to confidentiality, then it is clear that the doctor has a duty not to breach
this.
The
theory also provides a moral framework for law. For example the rights
of P have a legal backing. This legal aspect is an essential component of
healthcare because it protects the weak. Rights are therefore compatible with
social responsibility.
Finally
Rights Theory is widely understood and accepted the world over, ie it has a
commonality; and is therefore a good basis for discussion of an ethical
problem.
…and its weaknesses
Rights
theories are often criticised because of the disagreement over who or what has
rights – this is particularly relevant in relation to, for example, abortion
but is also important here. Some require the capacity to suffer, or the
capacity to reason as criteria for possessing rights – this would exclude P
from having rights. Similarly, having interests has been used as a requirement
for rights, and again could exclude P because he is not living.
Next,
rights are applied to individuals. Because of this, the Theory can neglect
communal interests and public health, and this is seen clearly here. Rights are
sometimes incompatible with social ideals – they do not account for the moral
significance of motives and virtues. So they could be seen as minimalist – ie
simply statements of the minimum enforceable rules to be observed, and this
renders the Theory incomplete.
Further,
rights can be relinquished. Although this could be seen as a strength because
it allows flexibility, it can also be argued that it invalidates the theory: in
this case several people’s rights must be relinquished to reach a conclusion.
Beauchamp and Childress call this an infringement (a justified action
overriding a right) rather than a violation (an unjustified action against a
right). When the infringement clashes with another’s rights, this weakens the
theory.
So,
the major problem with the theory in this example is this: it does not
adequately answer the question ‘Whose rights are more important?’ Clearly the
rights of individuals in the case conflict with each other. Unless we have a
ranking system of rights we cannot reach a conclusion. This is reflected in the
UN’s doctrine on Human Rights: the UN has only one unqualified right –
that of the right not to be tortured. Even rights to life and liberty are
qualified by the UN.
Also
the emphasis on rights tends to encourage pursuance of moral demands at
the cost of neglect of duties (Gillon 1986, P56). Rights Theory has been
criticised because of the adversarial attitude it encourages, whereby
affection, sympathy and trust between the parties are undermined. In the
context of health care this is particularly pertinent.
Returning
to this question, we have the following factors in favour of respect for this
right:
One
of the arguments for maintaining confidentiality is the patient’s trust in the
medical professional. P’s right to confidentiality is a moral trump, as he is
the patient with the problem and the vulnerable should be protected. His trust
in the doctor, that was inherent in their professional relationship, is
preserved by maintaining privacy. His right as the patient overrides the wishes
of his sister, or the doctor’s right to tell the truth. Because his wishes were
not known before his death, and because he did not know his HIV result, the
moral trump effect of the Theory should prevail to protect him. His right to
confidentiality persists in the same way as his right to respect for his body
and a dignified funeral. Thus a limit is placed on how P is treated, regardless
of the good that might be achieved (Rachels 2003, P108). In other words it is
the least interfering way of acting. Further, giving P a right to
confidentiality might be a reflection of the desires he would have had
were he alive - P is being treated as an autonomous being after his death.
Dworkin describes it thus: the former
capacity for self-respect requires that we treat with dignity now, in relation to Alzheimer’s patients
(Dworkin in Bioethics 1999, P307).
P’s
right to confidentiality is backed up by law, hence the Medical Defence Union’s
advice.
P’s
right to confidentiality can be widely understood in different cultures and
societies. It is also a universally accepted right in health care – health care
professionals accept the corresponding duty to maintain confidentiality and
make efforts not to breach this right.
However
there are several factors which go against his right to confidentiality. The
most important of these is his death – he has no capacity to suffer or reason
and has no ongoing interests; he has relinquished his rights by dying -
therefore according to some he is excluded from the language of rights
altogether. Tooley calls this the requirement for self-consciousness. He
explains that ‘A has a right to X’ is synonymous with ‘A is the sort of thing
that is a subject of experiences and other mental states, A is capable of
desiring X, and if A does desire X, then others are under a prima facie
obligation to refrain from actions that would deprive him of it.’ (Tooley in
Bioethics 1999, P24). He also explains that it is the conceptual capability to
desire X, and not the desire itself, which is important. This allows exceptions
to be made for people in emotionally unbalanced states, temporary
unconsciousness and situations where an individual’s desires have been
distorted by conditioning or indoctrination. The argument does not include
people who have died. P at one time had the conceptual ability to demand a
right for confidentiality, but no longer does, and more importantly, never will again. Perhaps it is this
last fact which is overriding in the argument that his rights should be
relinquished.
The
public health issue could be seen as a moral trump in this scenario –P’s rights
are justifiably infringed to protect people that he may have infected with HIV.
Although this can be viewed as the rights of the public prevailing, it is
probably better described in utilitarian language – in other words the
maximisation of total happiness. It highlights again the conflicts between the
rights of each party, and confirms that there are very few cases where a right
can be justified as absolute (Gillon 1986, P109). This can only act to weaken
the Theory. Similarly, the right of P may depend on the nature of his illness.
If he had an entirely non-infectious disease, would his right to confidentiality
be greater?
The American and British Medical Associations have modified the World Medical Association’s rule on absolute confidentiality, to reflect doctors’ obligations not only to their patients but also to others. The British Medical Association’s guidance on confidentiality states: ‘The ethical duty of confidentiality extends beyond the death of the patient, although legislation covering records made since 1 November 1991 permits limited disclosure in order to satisfy a claim arising from the death…. Doctors may consider disclosure to be justifiable based on the particular circumstances and knowledge of the patient’s wishes…. Often a decision to disclose will not be based on the interests of the subject but is made to protect other people or the public at large. The decision to disclose is based partly on a balancing of several moral imperatives, including the risk and likelihood of harm if no disclosure is made, and the need to maintain the trust of the patient’ (BMA, 1999). This makes clear that doctors are responsible not only for the harm they do, but also for the harm they fail to prevent (Kuhse in Bioethics 1999, P494). This is a description of obligations without reference to rights, and seems to be appropriate for this circumstance.
P’s sister was asking the doctors to be
honest about something she already suspected. Armed with the truth she could
possibly have gone to his friends and prevented further suffering or death. As
his nearest living relative, and with no other apparent motive than
understanding the truth, did she have a right to know? If so this would have
resulted in infringement of P’s right to confidentiality, and again raises the
problem of the ranking of rights.
Since
P was not given his HIV result before his death, it could be argued that no one
has a right to know it, and it should not be released at all. He could have
died before the test was taken, in which case it would only have been done at
post mortem if it were thought to be relevant to the cause of death. So who
owns test results after someone’s death? Say this had been a different infectious
disease with less mystique and media hype attached to it – would that have
altered P’s ‘right’ to confidentiality? Why also were the doctors allowed to
discuss the cause of death (on the death certificate) without the permission of
the patient? That could also be seen as a violation of his rights.
The
right to tell the truth (or not to have to lie) may be viewed as important here
if the doctor feels moral unease at withholding the truth or lying. The
doctor’s rights are in direct conflict with the rights of the patient. Usually
this does not cause problems, but in this case the doctor’s right to be an
autonomous agent coincides with the truth being told. Although Kant argued that
lying was ‘the obliteration of one’s dignity as a human being’ and held that
the rule against lying was absolute (Rachels 2003, P122), few would disagree
nowadays that the moral rule not to lie has to be qualified by circumstance.
However withholding the truth about a dead patient is probably not something of
which Kant would approve!
Using
the language of rights has highlighted certain inconsistencies and confusion in
the approach to this problem, mostly because it has required a ranking of
rights, which then forces the rights of some parties to be withheld. It seems
difficult to reach a widely accepted consensus on the ranking order, so this
illustrates a problem with the Theory in general. In addition it has proved
impossible to decide whether the dead patient even possesses rights at all. In
conclusion, using Rights Theory is probably not the best way to approach this
particular health care problem.
Almond,
B: Rights. Chapter 22. A Companion to Ethics. Ed. Singer, P 1991. Blackwell.
Beauchamp,
T, Childress, J: Principles of Biomedical Ethics. 4th Edition 1994.
OUP.
Bioethics,
An Anthology. Ed. Kuhse, H, Singer, P. 1999. Blackwell.
BMA Guidance on Confidentiality and Disclosure of Health Information. 1999. BMA website: www.bma.org.uk.
Gillon,
R: Philosophical Medical Ethics. 1986. Wiley.
Rachels,
J: The Elements of Moral Philosophy. 4th Edition 2003. McGraw Hill.