Whether and to what extent clinical ethics consultants have ethical expertise is an issue that has received recent attention in light of standardization efforts to describe what it is ethicists know and can do. In our society, the notion that one person can be a moral expert is bound to raise an incredulous eyebrow or two when it conjures images of one person saying to another, “Don’t get that abortion! It’s ok, I’m an ethicist, here’s my badge.” Critics have sought to delegitimize the field of clinical ethics by arguing that there is no such thing as ethics expertise, and yet without ethics expertise, we cannot have ethicists. Those who wish to counter this view begin in a dilemma. On the one hand, moral expertise asserts that some individuals can develop superior normative judgment, and those individuals should be involved in difficult decision making in the clinic. On the other hand the moral philosophy that undergirds such claims is in disarray; there is no consensus as to what makes one moral claim more justified than another [10]. How can ethicists claim expertise in normative matters when there is no agreement about the underlying meta-ethical issues upon which such expertise is based? How this issue is resolved will determine whether clinical ethicists are to be considered mediators or moral experts.
There are a variety of arguments against the possibility of ethics expertise. One strategy is to argue that the notion of moral expertise has no basis in a morally pluralistic society. Because our society is founded on the belief that individuals have the right to determine their own personal moral values with a wide degree of latitude (they cannot actively harm others), there can be no such thing as moral expertise. As critic of moral expertise Giles Scofield puts the worry, “[T]he ultimate problem with the claims ethics consultants make is that they cannot be true in a pluralistic, democratic society founded on the belief that each person is the moral equal of every other” [12]. Another, more recent critic, Christopher Cowley emphasizes the distinctly personal nature of ethical perception, which means “all these fancy ethical theories and principles,” which are supposed to tell us what is right and wrong despite our personal preferences, “lack normative force” [1]. Cowley goes on to add, “The mistake is to believe that moral philosophers have some added authority to which non-philosophers should defer just as I defer to my dentist: such a belief would make the philosopher’s behavior not ‘professional’, but presumptuous, moralistic, and preachy” [1].
Others have argued against the possibility of moral expertise on metaphysical and epistemological grounds. These arguments assert that either because there are no moral facts, or because even if there are moral facts we cannot know them, then there cannot be moral expertise. Moral expertise requires knowledge of a singular moral truth, a claim dismissed as false or absurd [11]. Dien Ho summarizes the epistemic version of the argument this way:
We do not know which ethical and meta-ethical theories are correct.
If we do not know which ethical and meta-ethical theories are correct, then ethical expertise is impossible.
Therefore, ethical expertise is impossible [7].
According to American philosopher and bioethicist Tristram Engelhardt, in the case of ethical theories, the primary difficulty is that they always end up presupposing what they set out to prove—they beg the question. The postmodern era in which we now find ourselves is a testament to the truth of the first premise above. We remain deeply divided on moral questions because the Enlightenment promise to adjudicate moral truth with reason has failed [3].
Another strategy is to emphasize the prevalence of not mere disagreement, but radical disagreement between so-called moral experts. As Australian philosopher John Mackie notes, disagreement “may indirectly support second order subjectivism; radical differences between first order moral judgments make it difficult to treat those judgments as apprehensions of objective truths” [8]. Some evidence exists to suggest that ethicists seem to lack continuity among their recommendations in all but the easiest cases. These findings, which studied recommendations for patients in persistent vegetative states specifically, have not changed significantly from 1991 to 2003, despite efforts to publish guidelines for appropriate treatment [5, 9]. However, this is likely due to the fact that Fox et al judged the guidelines “too nonspecific and nonprescriptive to suggest a particular best course of action” [5].
Others argue against ethics expertise by pointing out how ethics fails to measure up to gold standards of expertise—typically taken as medicine and science generally. Ethicist Ruth Shalit concisely states, “The problem with all this is basic. ‘Clinical ethics’ is not medicine, which is to say it is not science, which is to say it is to a very large degree whatever anyone wants it to be” [13]. Philosopher Bernward Gesang argues that expertise is stronger in science because there is an emphasis of experience over theory—meaning our experiences do more to shape what theories we hold. In ethics, there is a stronger emphasis of theory over experience—meaning our theories do more to shape how we see the world. He writes, “Moral experience is influenced by the concrete subject, its preferences, traditions, and so on. That is different from empirical science” [6]. On this view, because morality does not work like science, it does not admit of expertise.
I believe the project of articulating what sort of normative ability the clinical ethicist has is of critical importance, especially as the field moves toward standardization. Clinical ethicists should not resign themselves to the task of mere mediation. After all, clinical ethics was partly born out of a need for greater ethical oversight in medical practice. Such oversight is inherently normative, society has tasked ethicists with preventing the wrong and promoting the right in the medical context. Therefore, we need an account of normative authority in clinical ethics that avoids saying too much or too little.
The claim that ethicists have a kind of moral expertise is too ambitious—it carries expectations well beyond what a clinical ethicist is able to actually deliver. There are far too many moral questions ethicists cannot answer to justify calling their knowledge about what ought to be done a kind of expertise. Instead of ethics expertise, the normative judgment of ethicists is more accurately described as a kind of trusted normative sensibility. The training of ethicists produces a minimal, yet durable moral sensibility, capable of enforcing a kind of commonsense morality in the clinic. A trusted normative sensibility is one that reliably enforces rather uncontroversial ethical practices or sets rather uncontroversial boundary conditions on what decisions can be made in a moral dilemma. This amounts to a very circumscribed authority, but some sense of authority nonetheless. It is a far cry from the kind of ethicist Cowley imagines when he writes, “The ethicist comes to the committee and makes his moral judgment ‘euthanasia should be legalized’ and offers his reasons (utilitarian, deontological) etc..” [2]. Such a straw man only suggests that Cowley seems to have little experience with what clinical ethicists actually do.
The kinds of uncontroversial moral norms ethicists are able to enforce include things like not allowing physicians to force treatment upon patients with decision-making capacity that have refused such treatment, or not lying to patients for no good reason, or not casually discussing the confidential information of patients with others when it is not medically necessary. In cases of mediation, ethicists set the boundaries for acceptable decisions, which often admit to a wide degree of latitude. They do not make the decision, but they help determine what acceptable options are on the table—often using mediation to forge consensus within that acceptable range [4].
The fact that there is no consensus on questions of meta-ethics and normative theory is not a real obstacle to enforcing such uncontroversial claims. Just as the content of a biologist’s knowledge of evolutionary theory does not change whether they accept realism or anti-realism, neither too does the commonsense morality of the clinical ethicist change whether one is an error theorist or an emotivist. It is only in the more controversial cases where normative theory, metaphysics and meta-ethics can make a difference, and it is those controversial cases that are outside the purview of the clinical ethicist.
Although the more controversial issues are not within the purview of the ethicist when they are working in the clinic, a distinction should be drawn between this modest notion of normative sensibility, and the ability of ethicists to engage much more freely with moral questions outside the clinic. Ethicists should be encouraged to think deeply and boldly about issues in the twisting labyrinth of looming bioethical issues society will face. Bioethics needs thoughtful normative reflection on many topics. Ethicists are well positioned, and should be encouraged, to provide such reflection away from the bedside.
Calling clinical ethics ability what it currently is, a modest normative sensibility, does not relegate it to always be such, as any discipline that produces practitioners justifiably called experts necessarily had similarly modest beginnings. It would not have made much sense to call the first members of the Royal Society “experts” in science. The method of science was only first being formed and they hardly knew what they were doing. But it would have also been incorrect to claim these individuals possessed no special knowledge or ability whatsoever. These early scientists knew, for example, how to build and run experiments with air pumps. They also fiercely insisted that such knowledge could be acquired without reference to any metaphysics [14]. From these modest beginnings they eventually developed a methodology and body of knowledge that would change humanity forever. Therefore, modest normative beginnings do not preclude the possibility of ethicists one day having something like full-fledged moral expertise.
References:
1. Cowley, Christopher. 2005. A new rejection of moral expertise. Medicine, Health Care, And Philosophy 8 (3):273-279.
2. Cowley, Christopher. 2012. Expertise, Wisdom and Moral Philosophers: A Response to Gesang. Bioethics 26 (6):337-342. doi:10.1111/j.1467-8519.2010.01860.x.
3. Engelhardt, H. Tristram. 1996. The foundations of bioethics. New York : Oxford University Press, 1996. 2nd ed.
4. Fox, Ellen, and Robert M. Arnold. 1996. Evaluating Outcomes in Ethics Consultation Research. United States, North America.
5. Fox, Ellen, Frona C. Daskal, and Carol Stocking. 2007. Ethics Consultants' Recommendations for Life-Prolonging Treatment of Patients in Persistent Vegetative State: A Follow-up Study. Journal of Clinical Ethics 18 (1):64.
6. Gesang, Bernward. 2010. Are moral philosophers moral experts? Bioethics 24 (4):153-159.
7. Ho, D. 2016. Keeping it Ethically Real. J Med Philos 41 (4):369-383. doi:10.1093/jmp/jhw010.
8. Mackie, J. L. 1990. Ethics : inventing right and wrong. Penguin philosophy: London ; New York : Penguin, [1990].
9. Moseley, Ray, S. Van McCrary, Ellen Fox, and Carol Stocking. 1994. Variations in Recommendations of Ethics Consultants. United States, North America.
10. Rasmussen, Lisa M. 2011. Clinical ethics consultation's dilemma, and a solution. Journal of Clinical Ethics 22 (4):380-392.
11. Rasmussen, Lisa M. 2011. An Ethics Expertise for Clinical Ethics Consultation. Journal of Law, Medicine & Ethics 39:649.
12. Scofield, G. R. 1993. Ethics consultation: the least dangerous profession? Cambridge Quarterly Of Healthcare Ethics: CQ: The International Journal Of Healthcare Ethics Committees 2 (4):417-426.
13. Shalit, Ruth. 1997. When we were philosopher kings: the rise of the medical ethicist. New Republic (New York, N.Y.) 216 (17):24-28.
14. Shapin, Steven, Simon Schaffer, and Thomas Hobbes. 1985. Leviathan and the air-pump : Hobbes, Boyle, and the experimental life : including a translation of Thomas Hobbes, Dialogus physicus de natura aeris by Simon Schaffer. Princeton, N.J. : Princeton University Press, 1985.