Hostname: page-component-78c5997874-s2hrs Total loading time: 0 Render date: 2024-11-10T12:34:38.014Z Has data issue: false hasContentIssue false
  • English
  • Français

Toward a Theory of Process

Published online by Cambridge University Press:  29 April 2021

Susan M. Wolf
Get access Rights & Permissions [Opens in a new window]

Extract

Bioethics has no theory of process. We have labored to develop a widely shared set of substantive values, but have been slow to spell out exactly what processes our values command. Nor have we examined process itself, to gauge the impact of different procedures and debate what we should value in process itself.

The little work that has been done on process focuses almost exclusively on what action should be taken in one-to-one encounters. Thus, much has been said on the obligation of the physician to speak with the patient, share information, and seek consent. Indeed, it would have been difficult to advocate respect for patient autonomy at all, without at least requiring this minimal and individualistic sort of procedure. But the requirement of certain behaviors in individual encounters has not been set in any broader vision of institutional process.

Type
Article
Information
Law, Medicine and Healthcare , Volume 20 , Issue 4 , Winter 1992 , pp. 278 - 290
Copyright
Copyright © American Society of Law, Medicine and Ethics 1992

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Dennis Thompson has made a closely related point, noting recently that “It is surprising that hospital ethics—and institutional ethics more generally—has been so neglected.” Thompson, Dennis F., “Hospital Ethics,” 3 Cambridge Quarterly of Healthcare Ethics 203, 203 (1992). He goes on to examine ethics committees, favoring an advisory role in case consultation coupled with “expanded authority” to formulate standards and make policy. Id. at 208–09.CrossRefGoogle Scholar
Wolf, Susan M., “Ethics Committees and Due Process: Nesting Rights in a Community of Caring,” 50 Maryland Law Review 798.Google Scholar
See, e.g., Mashaw, Jerry L., Due Process in the Administrative State 5 (New Haven: Yale University Press, 1985) (“the attempt to separate questions of substance and process…can never be wholly successful”).Google Scholar
See, e.g., Meisel, Alan, The Right to Die 474–75 (New York: Wiley, 1989).Google Scholar
See Hoffman, Diane E., “Regulating Ethics Committees in Health Care Institutions—Is It Time?” 50 Maryland Law Review 746, 749–50 & nn.17, 18 (1991).Google Scholar
See Wolf, Susan M., “Ethics Committees in the Courts,” Hastings Center Report 12 (June 1986).Google Scholar
See id. at 13–14 (discussing In re Torres and In re Spring).Google Scholar
The first opinion to so order was, of course, In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922 (1976). A recent case to recommend committees is In re L.W., 482 N.W.2d 60 (Wis. 1992).Google Scholar
See Hoffmann, , supra note 5, at 746–97, 750 & n.18 (discussing a Maryland State Bar Association proposal).Google Scholar
See, e.g., In re A.C., 573 A.2d 1235, 1237 n.2 (D.C. 1990).Google Scholar
See Md. Health-Gen. Code Ann. §§ 19-370 to -374 (1990 & Supp. 1992); N.J. Admin. Code tit. 8, §§ 43G-5.1(h)2. and 3. (1992), reprinted in New Jersey Commission on Legal and Ethical Problems in the Delivery of Health Care, The New Jersey Advance Directives for Health Care Act (and the Patient Self-Determination Act): A Guidebook for Health Care Professionals 76–77 (1992); New York State Task Force on Life and the Law, When Others Must Choose: Deciding for Patients Without Capacity 137, 261 (1992), as modified by New York State Task Force on Life and the Law, Letter to Hon. Richard N. Gottfried (Dec. 31, 1992).Google Scholar
Beauchamp, Tom L. and Childress, James F., Principles of Biomedical Ethics (3d ed., New York: Oxford University Press, 1989).Google Scholar
See, e.g., Danner Clouser, K. and Gert, Bernard, “A Critique of Principlism,” 15 Journal of Medicine and Philosophy 219 (1990). For a different attack on top-down (or deductive) versus bottom-up (or inductive) ethics, see Green, Ronald M., “Method in Bioethics: A Troubled Assessment,” 15 Journal of Medicine and Philosophy 179 (1990); Hoffmaster, Barry, “The Theory and Practice of Applied Ethics,” XXX Dialogue 213 (1991). See generally Degrazia, David, “Moving Forward in Bioethical Theory: Theories, Cases, and Specified Principlism,” 17 Journal of Medicine and Philosophy 511 (1992).CrossRefGoogle Scholar
For discussion of each of these, see Degrazia, , supra note 13.Google Scholar
See, e.g., Daniels, Norman, Just Health Care 108 (New York: Cambridge University Press, 1985).Google ScholarPubMed
I am grateful to Dennis Thompson for this point.Google Scholar
Though the legal literature on process is vast, a number of these formulations are stated or suggested in selections in Cover, Robert M. and Fiss, Owen M., The Structure of Procedure (Mineola, NY: Foundation Press, 1979). The first two listed in text are taken from the selections by Michelman, Frank I. and Mashaw, Jerry L. On therapeutic process see Wexler, David B., Therapeutic Jurisprudence: The Law as a Therapeutic Agent 243–305 (Durham, NC: Carolina Academic Press, 1990). On process as communication see Minow, Martha, Making All the Difference: Inclusion, Exclusion, and the American Law 295 (Ithaca: Cornell University Press, 1990).Google Scholar
A classic in this vein is Fuller, Lon L., “The Forms and Limits of Adjudication,” 92 Harvard Law Review 353 (1978).CrossRefGoogle Scholar
See, e.g., Mashaw, , supra note 3, part of the considerable literature spawned by what he (at 33) calls “the due process revolution.”Google Scholar
Emanuel, Ezekiel J., The Ends of Human Life: Medical Ethics in a Liberal Polity 34 (Cambridge: Harvard University Press, 1991). See also Arras, John D., “Toward an Ethic of Ambiguity,” Hastings Center Report 25 (Apr. 1984).Google Scholar
See Thompson, , supra note 1.Google Scholar
See, e.g., Donaldson, Thomas, Corporations & Morality (Englewood Cliffs, NJ: Prentice-Hall, 1982).Google Scholar
See French, Peter A., Collective and Corporate Responsibility (New York: Columbia University Press, 1984); May, Larry and Hoffman, Stacey, eds., Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics (Savage, MD: Rowman & Littlefield, 1991).CrossRefGoogle Scholar
See, e.g., Wolgast, Elizabeth, Ethics of an Artificial Person: Lost Responsibility in Professions and Organizations (Stanford, CA: Stanford University Press, 1992).Google Scholar
American Hospital Association, Ethical Conduct for Health Care Institutions (Chicago: American Hospital Association, 1992).Google Scholar
Catholic Health Association, Social Accountability Budget for Not-for-Profit Healthcare Organizations (St. Louis: Catholic Health Association, 1989).Google Scholar
See, e.g., Miles, Steven H., Singer, Peter A., and Siegler, Mark, “Conflicts between Patients' Wishes to Forgo Treatment and the Policies of Health Care Facilities,” 321 New Engl. J. Med. 48 (1989); Annas, George J., “Transferring the Ethical Hot Potato,” Hastings Center Report 20 (Feb. 1987).CrossRefGoogle Scholar
See Katz, Jay, The Silent World of Doctor and Patient (New York: Free Press, 1984).Google Scholar
Jorge Garcia has pointed out that bioethics has almost entirely ignored service workers. See Garcia, Jorge L.A., “African-American Perspectives, Cultural Relativism and Normative Issues: Some Conceptual Questions,” in African-American Perspectives on Biomedical Ethics 11, 57–58 n.49 (Flack, Harley E. and Pellegrino, Edmund D., eds., Washington, DC: Georgetown University Press, 1992).Google Scholar
See Katz, , supra note 28; Burt, Robert A., Taking Care of Strangers (New York: Free Press, 1979).Google Scholar
See Wolf, , supra note 2, at 826.Google Scholar
See id., at 827 & n.106.Google Scholar
See, e.g., Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying (Bloomington: Indiana University Press & The Hastings Center, 1987).Google Scholar
Annette Dula writes: “Institutional racism has been an effective barrier to health care…. [That] racism…is manifested in the way African-Americans are treated and in the way that institutional views about poor people overlap with views about African-Americans.” Dula, Annette, “Yes, There Are African-American Perspectives on Bioethics,” in African-American Perspectives on Biomedical Ethics 193, 195 (Flack, Harley E. and Pellegrino, Edmund D., eds., Washington, DC: Georgetown University Press, 1992).Google Scholar
See, e.g., Sherwin, Susan, No Longer Patient: Feminist Ethics & Health Care 223–26 (Philadelphia: Temple University Press, 1992); Wenger, Nanette K., “Exclusion of the Elderly and Women from Coronary Trials: Is Their Quality of Care Compromised?” 268 JAMA 1460 (1992); Wenneker, Mark B. and Epstein, Arnold M., “Racial Inequalities in the Use of Procedures for Patients with Ischemic Heart Disease in Massachusetts,” 261 JAMA 233 (1989); Blendon, Robert J., Aiken, Linda H., Freeman, Howard E., and Corey, Christopher R., “Access to Medical Care for Black and White Americans: A Matter of Continuing Concern,” 261 JAMA 278 (1989); Svensson, Craig K., “Representation of American Blacks in Clinical Trials of New Drugs,” 261 JAMA 263 (1989).Google Scholar
See Wenger, , supra note 35; Wenneker, and Epstein, , supra note 35; Blendon, et al., supra note 35.Google Scholar
By suggesting that some others might share the patient's standpoint, I do not mean to suggest that all members of certain gender, racial, and ethnic groups share the same standpoint. I merely mean to suggest that committee members and caregivers who do not share the same groups as the patient may find they have to deal with additional barriers to understanding her viewpoint. Clearly, members of the same groups may also find substantial differences and barriers to understanding each others' views. Note that I use “groups” in the plural to recognize that a person may be part of more than one, and that the identification and delimitation of different groups is almost always problematic. See, e.g., Crenshaw, Kimberle, “Whose Story Is It Anyway? Feminist and Antiracist Appropriations of Anita Hill,” in Raceing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality 402 (Morrison, Toni, ed., New York: Pantheon Books, 1992).Google Scholar
See, e.g., Beauchamp, , Childress, , supra note 12.Google Scholar
Martha Minow discussed a striking example of the latter approach in her book, supra note 17, at 341–49.Google Scholar
Cf. Mashaw, , supra note 3, at 177 (“Participation is an obvious candidate for our set of dignitary process values….[to protect] dignity and self-respect”).Google Scholar
See, e.g., Tyler, Tom R., “The Psychological Consequences of Judicial Procedures: Implications for Civil Commitment Hearings,” 46 SMU Law Review 433; Wexler, , supra note 17.Google Scholar
See, e.g., Mashaw, , supra note 3, at 158–253.Google Scholar
See, e.g., Hoffmaster, , supra note 13.Google Scholar
There is already some important work on this. See, e.g., Greenfield, Sheldon, Kaplan, Sherrie, and Ware, John E., “Expanding Patient Involvement in Care: Effects on Patient Outcomes,” 102 Annals of Internal Medicine 520 (1985).CrossRefGoogle Scholar
Note that the recent proposals of the New York State Task Force on Life and the Law, cited supra note 11, would give committees greater authority than my analysis recommends.Google Scholar
Cf. Mashaw, , supra note 3, at 174 (“The simple dynamics of processes may subtly advantage or disadvantage certain types of claims or claimants.”).Google Scholar
For a court confusing ethics and law, see Brophy v. New England Sinai Hospital, 497 N.E.2d 626 (1986).Google Scholar
It should go without saying that judges should never consider ethics committee advice or communicate with members of the ethics committee off the record. This gives counsel no opportunity to challenge the relevance or quality of the committee's determination. It also leaves the judge with few tools by which to evaluate the committee or its advice. Indeed, it leaves the judge entirely vulnerable to the confusion of ethics and law. Most importantly, it leaves the patient completely exposed to having those injustices that may have been perpetrated by the committee now written into law through the court's judgment.Google Scholar
This is not to dismiss the controversies in jurisprudence and the philosophy of law over the nature of adjudication, nor to dismiss the debates over the nature and utility of legal rights. Indeed, there is a vigorous critique of the language of “rights” in law. See, e.g., Tushnet, Mark, “An Essay on Rights,” 62 Texas Law Review 1363 (1984). I also do not mean to overlook particularly thoughtful students of judicial process who do search for forms of process that protect both rights and caregiving bonds. See, e.g., Minow, , supra note 17. I merely mean to suggest that ethics committees have no viable way to escape the complexities I enumerate; there is no defensible role or formal posture in which they can hide from the fact that they are usually dealing with a sick and dependent patient in need of caregiving, and in a controversial moral domain in which “rights” are only one of several dominant categories.Google Scholar
“Between the idea/ And the reality/ Between the motion/ And the act/ Falls the Shadow.” Eliot, T.S., The Hollow Men, in Selected Poems 75, 80 (New York: Harcourt Brace Jovanovich, 1964).Google Scholar