2 Dr. Charles Hinkley Greetings Students, Sincerely, Welcome to Professional Ethics! Virtually everyone has some idea about what it means to be ethical and what it means to be a professional. Ethics is the study of right and wrong, good and bad, virtue and vice.The professions are honored and authoritative occupations devoted to the public good. Such professions include law, medicine, engineering, teaching, the ministry, politics, business, and journalism.Professional ethics, then, covers a broad range of moral issues related to the duties of professionals such as doctors and nurses, attorneys and judges, business leaders, politicians, and other professionals and the institutions and systems which shape the professions.In this course, we will focus on law, business, and politics. We have a good array of subjects to analyze, and I look forward to learning from the books and our discussions.Sincerely,Dr. Charles Hinkley
3 Syllabus Instructor: Dr. Charles Hinkley Office hours: Psychology Bldg. Rm. 134 TTh 10:00-11:00 and by appointmentRequired Textbooks:Luizzi, Vincent, A Case for Legal Ethics: Legal Ethics As a Source for a Universal Ethic, SUNY Press, 1993.Zitrin, Richard and Carol M. Langford, The Moral Compass of the American Lawyer, Ballantine Books, 1999.Course Description:Philosophy is the intelligent exploration of life’s most profound questions. Ethics is a branch of philosophy that addresses the nature of moral goodness, virtue and vice, good and evil, and right and wrong. Ethics is not merely a disinterested search for moral truths but an honest and often passionate quest to live well in a complex and changing world. Professional ethics focuses on the moral duties and virtues of professionals; traditionally, physicians and nurses, attorneys, and people in business. Today, professional ethics has expanded into many other fields and most companies have ethics policies covering such topics as sexual harassment, discrimination, confidentiality, and informed consent. We will focus on business, legal, and political ethics.
4 Assignments and Grading: Objectives:By the end of this course, you will have achieved three important goals. First, you will be conversant about the major schools of ethical thought and how they might apply to concrete situations. Second, you will become a better thinker and writer. Becoming a more logical person involves clarifying words, phrases, statements, and questions and understanding the fundamentals of inductive and deductive logic and fallacious thinking. Moreover, specific instructions will be provided to improve students’ sentence structure, rhetoric, and defense of a thesis. Third, you will gain insights about your beliefs, values, doubts, and limitations. Specifically, you will better judge your level of knowledge, more intelligently interpret your moral experiences, and better recognize sources of conflict and resolutions to conflict. It is clear that although we will focus on professional ethics, the concepts that we learn apply to other facets of life.Assignments and Grading:Students are required to write two 4-5 page essays, each worth 100 points. The final exam will be an “in-class” essay worth 100 points. Class participation is expected. Students who contribute to class discussions impressively can receive 10 additional points towards their final grade. Grades will not be curved, and there will be no extra credit assignments. Any student found guilty of academic dishonesty will receive an “F” for the course.A: B: C: D: F: 50-59Attendance:Attendance is required. Absences will be considered unexcused without sufficient reason (illness, funeral, university-sanctioned event, etc.) presented by the student. Students with more than two unexcused absences will have their final grade dropped one letter.Schedule:Assignments will be posted at the beginning of each class time. Generally, we will read one chapter for each class.
5 What are the characteristics of a professional? ProfessionalismWhat are the characteristicsof a professional?
6 1) ExpertiseProfessionals such as physicians and attorneys have specialized knowledge that requires several years of study and training. Professionals usually excel in academics, are among the few accepted into advanced professional academic programs, and must pass rigorous exams to be licensed practitioners.
7 2) Honor and PrestigeConcomitant with their expertise, professionals often hold prestigious and privileged offices that command respect.
8 3) AutonomyAutonomy means having the ability and authority to make choices. The public regards professionals as experts; thus they have a high degree of autonomy at the workplace. In other words, professionals have a great degree of decision-making power.
9 4) Public GoodProfessionals serve an important social role in making a good society. Ideally, attorneys are dedicated to justice; physicians to health; teachers to education; journalists to truth, and so forth. Although it is acceptable for professionals to sell their services, the virtuous professional is dedicated to serving an important social role and to realizing or furthering the goal of that profession.
10 QuestionsWhat characteristics would you add to the meaning of a professional?Although not everyone at the workplace is a professional, professional conduct is expected from all employees in many organizations. Do you think discussing personal matters (e.g. family issues, or dating habits) is appropriate at work?To what extent should supervisors and managers be friends with subordinates and other managers and supervisors? Is it appropriate to have drinks after work with other employees?What should be expected from all employees at office parties?
12 GlobalizationGlobalization refers to the increasing financial and cultural interconnectedness among nations and societies. The benefits of globalization include more opportunities for trade and investment. The burdens include outsourcing, the economic exploitation of third-world citizens, and the homogenization of culture.
13 CapitalismCapitalism is an economic system based on property rights. In capitalist societies individuals have a right to own and profit from owning private property. So, in capitalist societies individuals have the right to own businesses and natural resources (e.g. land). In Marxist terms, capital is the means of production such as businesses that produce goods and services. Capitalist systems are also known as free-market economies. A capitalist system opposes the government ownership of industry. Capitalism is known for providing individuals with opportunities to gain wealth but with also being exploitive.
14 Laissez-Faire Capitalism Adam Smith is the intellectual father of laissez-faire capitalism. Smith believed that governments should not intervene too much in the economy, and that people should have the right to embark on and profit from their own ideas and endeavors. Smith believed that people are naturally egoistic or self interested and acquisitive. We want to gain wealth. Smith envisions a society where people will meet their own needs and the needs of others if governments do not impede people from profiting from their work. The idea is that intelligent, industrious people will develop goods and services that satisfy people’s needs and desires. This system does not need government intervention, but is guided by the invisible hand of supply and demand.
15 CommunismKarl Marx is the intellectual father of communism. Marx was writing in the mid to late 19th century where he witnessed the capitalist exploitation of wage earners around the world. According to Marx, capitalism is an oppressive system, because capitalists exploit their workers by providing meager wages and benefits and taking the lion’s share of the profits for themselves. Marx also believed that capitalism was inefficient with its boom and bust cycle. This problem is exemplified by stock market rises and crashes. For Marx, workers (the proletarians) should seize private property through revolution; property is to be communally owned. Communists believe that the government should be more proactive in planning economic development, rather than relying on free enterprise to meet needs. Communist societies are known for a more egalitarian distribution of wealth but also for limiting opportunities and for being authoritarian.
16 Social Contract Theory Social contract theory is one of the great traditions of political philosophy in Great Britain and the United States. The idea is that political authority must be justified. Social contract theorists believe that for a government to be legitimate, the citizens must consent to be governed. In other words, there must be a social contract between those who govern and those who are governed. The key question is, to what are citizens consenting? Different theorists answer this question differently. Thomas Hobbes believed citizens consent to a powerful government in exchange for security. John Locke, however, argued that governments must protect natural rights. Other notable social contract theorists include Jean-Jacques Rousseau and John Rawls.
17 Distributive JusticeThe issue of distributive justice pertains to how a society’s wealth should be distributed. Some people believe that people are entitled to whatever they rightfully (i.e. without theft or violating people’s rights) gain in a free-market economy. Given the enormous disparity in wealth, others believe that the government should play a role in redistributing wealth. Wealth can be redistributed through taxation, raising the minimum wage, and welfare programs.
18 Social Responsibility Today, businesses are asked and pressured to be socially responsible. There is even a niche in personal finance known as socially responsible investing. A socially responsible business should attempt not to harm the environment and should have a record of treating its workers well. Socially responsible mutual funds might also divest of tobacco companies or corporations that use child labor.
19 McCain-FeingoldThis bill sets out to reform campaign finance by placing limits on “soft money”—money from corporations, labor unions, and wealthy individuals. The bill prohibits national political parties from receiving unlimited contributions for support of national elections. The bill requires more disclosure of campaign contributions and expenditures. The bill also seeks to limit ads financed by corporations and unions that are disguised to support particular candidates. Finally, the bill would strengthen laws prohibiting foreign nationals from financially contributing to elections.
20 Pork-Barrel PoliticsPork barrel politics refers to congressional representatives using federal funds or manipulating legislation for their own constituents at the expense of the nation’s interest. When bills are proposed politicians often will only support the legislation if something is added to the bill that serves their interest or their constituents’ interest.
21 Keynesian EconomicsJohn Maynard Keynes believed that a mixed economy is best. That is, free enterprise in combination with government intervention is needed. Remember that capitalism is characterized by a boom and bust cycle. During an economic downturn businesses typically institute layoffs and hiring freezes. To combat rampant unemployment, Keynes recommended government spending on programs, even if that meant creating a deficit. Those interested in balancing the federal budget will find Keynesianism difficult to accept.
22 Supply-Side Economics Supply-side economics is also known as “trickle-down” theory. The idea is that the government provides tax breaks for the wealthiest Americans to boost the economy. Why? Because the rich will then have more money to develop new businesses, expand or renovate old businesses, and invest in new technologies. These entrepreneurial endeavors will create new jobs so everyone in society ultimately benefits. By embarking on new projects the wealth will trickle down to middle and lower class Americans. Critics claim that the middle and lower classes are not likely to benefit from such tax breaks.
23 MonetarismMonetarism is an economic philosophy developed by Milton Friedman. Friedman believed that governmental interventions, especially involving the supply of money, did more harm than good. Other economist had thought that more needed to be introduced into the economy, because the wealthy were saving their money instead of embarking on new ventures that helped everyone. Friedman believed that market forces would eventually improve the economy. The supply of money should be held constant unless it is introduced to keep pace with the natural growth of the economy. We can’t just print more money to combat poverty; that just leads to inflation (rising prices).
24 Doing/AllowingThe doing/allowing distinction is a fundamental concept of ethics that is relevant to medical, legal, and political issues. The heart of this distinction is this: all other things being equal, doing harm is worse than allowing harm. An application of this principle is that people can be held legally liable for harming others but not for failing to help, unless their job requires them to help in some capacity (e.g. a doctor is required to help his or her patients). This concept is relevant in the light of Margaret Thatcher’s claim that, “You are not doing anything against the poor by seeing that the top people are paid well”(p.23). The idea is that it might be true that government and business are not helping the poor, but they are not harming them. The moral and legal significance of the doing/allowing distinction is debatable.
25 Self InterestGreat philosophers such as Plato, David Hume, Thomas Hobbes, and many others have claimed that people’s self interest is a fundamental moral and political problem. The fear is that people will attempt to satisfy their own interest at the expense of others. Hobbes and Adam Smith believed that it is human nature to be selfish. Even when philosophers believe that genuine altruism is possible, there is still the problem that many people will mistreat others for their own gain.
26 World Trade Organization (WTO) The WTO is an international organization that regulates trade between nations. The WTO attempts to foster free enterprise by eliminating or limiting taxes, tariffs, and laws that impede trade. Supporters of the WTO argue that free trade benefits all countries involved. Critics claim that the WTO’s purpose is to advance the interests of multinational corporations. Consequently, they claim that the WTO undermines human rights, labor interests, and environmental interests. Why? Because laws that protect rights, the poor, and the environment are often regarded as anti-business.
27 North American Free Trade Agreement (NAFTA) NAFTA is an agreement among Canada, Mexico, and the United State to remove barriers to trade. Like the WTO, the goal was to foster business. The hope was that NAFTA would create jobs, raise living standards, protect the environment, and transform Mexico from a third-world country into a new market for American and Canadian exports. Critics say that NAFTA isn’t so much a trade agreement as it is an investment agreement. Critics maintain that the pursuit of profits has resulted in relaxing laws and regulations that protect our food supply, environment, and our jobs. The bottom line is that foreign investors now have more incentive to relocate factories and to privatize public goods such as energy and healthcare.
28 Questions What does Hertz means by the “silent takeover”? Do you believe corporations have too much power?Should the minimum wage be raised? If so, by how much?Should citizens be entitled to a living wage?Why do you think fewer than half of American citizens vote in national elections?
29 Tort Reform What is tort? What is a civil wrong? What is tort reform? What is a contingency fee?What are the reasons for defending tort reform?What are the reasons for opposing tort reform?What changes have been proposed?
30 What is a tort?A tort is a civil wrong where a person seeks compensation for damages from a person or corporation alleged to have caused the damage. The tort system refers to the judicial process related to compensating victims who suffer injuries from various accidents such as automobile collisions and medical malpractice.
31 What is a civil wrong?Civil law involves the judicial resolution of a claim by one person against another person. Civil law is codified by the legislature. In civil proceedings the judge’s role is to apply the existing laws to the facts of the case; the judge does not have an opportunity to interpret the law. In these cases, a judge is not bound by precedents set forth by other judges because in these cases the judges do not make the law according to their own interpretation. Instead, these judges are bound by the existing statutes. The civil law was developed to limit the power of the judicial branch of government. Civil law is contrasted with the criminal law where the state prosecutes a person for criminal conduct. The standards of evidence to prove a case differs in civil and criminal proceedings. In civil proceedings a case must be proven by the preponderance of the evidence, whereas in criminal proceeding a case must be proven beyond a reasonable doubt.
32 What is tort reform?Tort reform refers to proposals to limit the number of lawsuits and the monetary amount a victim can receive for damages.
33 What is a contingency fee? If something is contingent is means that it depends. So, a contingency fee means that the client pays the attorney a fee depending on whether the case is won and the settlement. In this situation, the plaintiff’s attorney must bear the financial cost of preparing the case.
34 What are the reasons defending tort reform? The current tort system encourages lawsuits, because lawyers and victims are hoping for huge settlements.Suits against doctors are escalating the cost of medical malpractice insurance, thereby driving some doctors out of medical practice.
35 What are the reasons opposing tort reform? Victims of accidents deserve to be compensated for damages.The threat of lawsuits provides an incentive to avoid causing harm to others.
36 What changes have been proposed? Limit non-economic damages (damages for pain and suffering) to $250,000.Limit attorney fees. The suggestion is that the larger the compensation award, the less of a percentage the attorney should receive.Allow members of the jury to consider benefits that victims have received through their insurance policies.Require awards over $50,000 to be made in payments.
37 QuestionsIn general, do you support or oppose tort reform? Clarify your reasons.Why do Zitrin and Langford oppose tort reform?What should be done with attorneys like Sam Hammond?
38 Sexual Harassment What is sexual harassment? What criteria are used to judge whether conduct constitutes sexual harassment?What laws pertain to sexual harassment?What is Texas State University’s policy on sexual harassment?Why does sexual harassment occur?Could your conduct be interpreted as sexual harassment?What should you do if you believe that you are being sexually harassed?
39 What is sexual harassment? Sexual harassment usually involves unwanted verbal or physical behavior of a sexual nature that interferes with a person’s ability to perform his or her work. Sexual harassment can be a single severe incident or a series of incidents that accumulate to create a hostile environment. In a legal sense, sexual harassment means conduct that discriminates against a person on the basis of gender whether or not the discriminatory conduct is of a sexual nature.
40 Quid pro quo sexual harassment involves an offer of something for something. In these cases a person guilty of sexual harassment offers some benefit such as a position of employment, pay raise, promotion, or better working conditions in exchange for a sexual favor.Hostile environment harassment involves sexual conduct that creates an intimidating, hostile, or offensive work environment that interferes with a person’s job performance.
41 What criteria are used to judge whether conduct constitutes sexual harassment? The subjective test for sexual harassment includes the idea that the alleged victim of harassment in fact feels that his or her working conditions have been adversely affected by the behavior.
42 The objective test for sexual harassment is whether conduct adversely affects conditions of employment. Since people often disagree as to what constitutes sexual harassment a common standard is needed to guide employees, employers, and judges. It is natural to ask whether a reasonable person would find such conduct as sexual harassment, but some critics say that men and women tend to view harassment differently and that the reasonable person standard is really a reasonable man standard. To avoid applying a reasonable man or a reasonable woman standard, some have begun to use a reasonable victim standard of judgment.
43 What laws pertain to sexual harassment? Title V11 of the 1964 Civil Rights Act and Title 1X of the 1972 Education Amendments are understood to prohibit sexual harassment at work and school. Thus, sexual harassment is considered a violation of the victim’s civil rights. The Equal Employment opportunity commission drafted guidelines describing employers’ obligations to prevent and stop sexual harassment.
44 What is Texas State University’s policy on sexual harassment? Texas State University defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” that is the basis of a condition of employment or academic decisions. Sexual harassment includes behavior such as repeated and unwanted requests for dates, sexual flirtation, sexual statements or questions about a person’s clothes, body, or sexual activities, subtle pressure for a sexual relationship, unnecessary touching, direct or implied threats, leering, physical assaults, or a pattern that causes humiliation or discomfort.
45 Why does sexual harassment occur? There are three models for understanding sexual harassment.The biological model contends that sexual harassment is a natural outcome of people seeking sexual relations. Although seeking sexual relations is natural, sexual harassment is the inappropriate attempt to find sexual gratification.The socio-cultural model asserts that sexual harassment is part of patriarchal society in which men seek to dominate women. This model is consistent with research that shows harassers are typically men and victims typically women.The organizational model claims that harassment is a result of hierarchical institutions. There are asymmetrical power relationships within organizations that provides the avenues for individuals to extort sexual relations with their subordinates.
46 Could your conduct be interpreted as sexual harassment? You should ask yourself three questions. First, would want our spouse or lover to be aware of our conduct? Second, would you want your conduct to become public? Third, is your conduct necessary for conducting business? Err on the side of caution.
47 What should you do if you believe that you are being sexually harassed? Different situations call for different solutions. There are, however, guidelines to follow. It might be appropriate to communicate to the perpetrator that you do not find his or her conduct appropriate and that such conduct makes you feel uncomfortable. You might also seek to limit your conduct with the perpetrator.If the harassment continues or the perpetrator denies the harassment, it might be appropriate to suggest a meeting with a supervisor or individuals within the human resources department. Legal counsel might be needed. The more accurately you document the offenses, the more likely the situation will be resolved in your favor.
48 QuestionsIs it ever appropriate to tell jokes of a sexual nature at work?Is it ever appropriate to compliment a person at work on his or her appearance?Is it ever appropriate to discuss one’s relationships or sexual history at work?Is it ever appropriate to date someone at work?If employees engage in a lover’s quarrel while at work, how should the immediate supervisor address the situation?
50 1) Virtue EthicsVirtue ethics focuses on what it takes to be a good person, on character development, on virtue and vice. Plato and Aristotle advanced views on virtue ethics by focusing on improving the soul and cultivating the right attitudes and habits. For Aristotle, at least, the good life is the life of the excellent person. Aristotle believed that the excellent person lives moderately. In other words, being immoral means going to extremes.
51 Golden MeanAristotle is known for the concept of the golden mean in which he states that virtue is found between two vices, a vice of excess and a vice of deficiency. For example, courage is a virtue found between cowardice (the deficiency) and foolhardiness (the excess). The virtue of friendliness is found between the vice of unfriendliness and being a sycophant.
52 HabituationAccording to Aristotle, we learn to be virtuous through the practice of correct behavior (habituation) from people who are excellent, the virtuous role models. We must develop virtuous habits. A challenge to virtue ethics is that virtuous people still might disagree as to what constitutes virtuous conduct in complicated matters such as cloning, terrorism, abortion, and other controversial social issues.
53 2) DeontologyDeontological ethics focuses on what makes an action the right thing to do. Deontologists such as Immanuel Kant and William David Ross argue that right action is determined by the inherent nature of the action, rather than the consequences of the action. This means that right action is not determined by what happens after the action is performed but by the intrinsic qualities of the action. For Kant, a morally right action demonstrates respect for persons and is universally (always) true. For Ross, duties have exceptions.
54 Categorical imperative “Categorical” means true for a whole category or without exception. An imperative is a command or a claim about what ought to be done. Hence, the categorical imperative is a claim that some actions ought to be done without exception. Kant is famous for his two versions of the categorical imperative. Kant is often criticized for being an absolutist in that moral principles are universally true and that we should never make exceptions to these principles to suit our interests.
55 categorical imperative 1st formulation of thecategorical imperativeKant states that persons should follow maxims (principles) that a person should will to be a universal law. This means that we should conduct ourselves in accordance with principles that we would want everyone to follow. For Kant, immorality means having one set of rules for ourselves and another set for others. When we are wondering what we should do, we should ask ourselves what we would want everyone else to do.
56 categorical imperative 2nd formulation of thecategorical imperativeKant states that we should never treat a person as merely a means to an end; people are ends-in-themselves. Kant claims people should never be treated as mere instruments to suit our purposes. No one should be treated or used as merely a thing.
57 Ross’s PluralismFor Ross, there is more than one moral principle. A morally right action abides by a moral principle such as keeping a promise or treating people fairly. Ross is famous for thinking that moral principles can conflict. Therefore, there are cases where we cannot do everything that is moral.
58 Prima facie dutiesIn cases of conflicting moral principles, each principle is true prima facie but only one principle in each case can be our duty proper. A prima facie principle is one that we should ordinarily follow but one that can be overridden in some circumstances. The duty proper is the prima facie principle that is the overriding principle for a particular situation. It can, however, be difficult to determine what is right.
59 IntuitionismRoss is described as advocating intuitionism because he believes good persons will have an intuition (an instinct) about what is the right thing to do. Ross is widely criticized because people often have different intuitions about what is right and wrong.
60 3) UtilitarianismUtilitarian ethics also focuses on what makes an action right. Unlike deontologists, utilitarians argue that the right action is the one that results in the best consequences. Utilitarianism is the view that we should promote the greatest good for the greatest number of people. Some utilitarians (Bentham) believe that pleasure is the good that should be maximized, while others (Mill) believe that happiness should be maximized and that there are higher and lower pleasures. Contemporary utilitarians can also be pluralists in the sense that there is more than one intrinsic good.
61 Act & Rule Utilitarianism Utilitarians disagree as to whether we should try to do the greatest good for the greatest number in every situation (act utilitarianism) or if we should try to follow rules that usually result in the greatest good for the greatest number (rule utilitarianism). The problem with act utilitarianism is that it seems to allow for the sacrifice of individuals for the greater good in some situations. The problem with rule utilitarianism is that it seems that we should sometimes make exceptions to rules.
62 4) Care EthicsCare ethics focuses on developing and maintaining caring relationships. Care ethicists emphasize the need to find inclusive (win-win) solutions to moral conflicts. Care ethicists also emphasize that we have stronger obligations to those with whom we have caring relationships. We have personal obligations to friends and family members but we also have impersonal obligations to strangers. Because care is important, healthy emotions have a more pivotal role in care ethics than in other ethical theories. One challenge for care ethicists is to prove that care can be the foundation for ethics in a world that is often impersonal.
63 QuestionsWhich theory do you think will be most relevant for discussing ethical issues that arise in the context of medical, legal, business, and political professionals?Do you expect any difficulties in applying ethical theories to practice?Are we supposed to be able to resolve all ethical conflicts?Are we all supposed to agree as to how to resolve an ethical conflict?If people disagree as to whether conduct is unethical, how can we discover the right answer? If we cannot always discover right answers, how are we supposed to respond to ethical conflicts?
64 Confidentiality What is confidentiality? What is the moral basis of confidentiality?Are there legitimate exceptions to upholding confidentiality?What is a fiduciary relationship?
65 What is confidentiality? Confidentiality—Confidentiality involves the protection of information regarded as private for interpersonal or professional reasons. Confidential information is often intimate, embarrassing, and potentially damaging. There are deontological and utilitarian reasons why information disclosed to professionals in their official capacity should be regarded as confidential.
66 What is the moral basis of confidentiality? Deontology & Confidentiality—Deontologists believe that confidentiality should be maintained because it is inherently right to do so. A breach of confidentiality shows a lack of respect for persons by violating trust. A Kantian approach would say that violating confidentiality cannot be universalized and that the person’s confidence breached has been used as merely a means for the end of gaining information. Information disclosed between client and attorney involves an implicit or explicit contract not to divulge the information to anyone not working on behalf of the client.
67 Utilitarianism & Confidentiality—Utilitarians would say that upholding confidentiality produces the greatest good for the greatest number. If attorneys could not be trusted to maintain confidentiality, citizens would not be forthcoming with information that is essential to providing justice that maximizes happiness. Without full disclosure, attorneys will not be able to defend their clients optimally. Without confidentiality justice will suffer, thereby undermining the good of the client and society.
68 Are there legitimate exceptions to upholding confidentiality? Confidentiality & Exceptions—An attorney may reveal confidential information if the client consents after consultation, the attorney has reason to do so in compliance with a court order, the attorney has reason to believe it is necessary to prevent the client from committing a criminal or fraudulent act, to carry out representation, when necessary to defend against various allegations, or in consultation with members of the attorney’s firm, unless otherwise instructed by the client. W.D. Ross’s philosophy is especially helpful in understanding exceptions to rules.
69 What is a fiduciary relationship? Fiduciary relationship—A fiduciary is a person to whom property or power is entrusted for the benefit of others. A fiduciary relationship between a professional and client involves a trust that the professional will act in the interest of the client for the good of the client and society.
71 Whistle Blowing What is whistle blowing? Are there legal protections for whistle blowers?What is the Sarbanes-Oxley Act of 2002?Is there anything wrong with blowing the whistle?What is the justification for whistle blowing?What should a potential whistle blower consider?What are the moral grounds for protecting whistle blowers?What constitutes an effective whistle blowing policy?
72 What is whistle blowing? Whistle blowing involves an employee’s exposure of institutional abuse, fraud, or other criminal activity or immoral activity, or activity not in the public interest. Only a member of the organization alleged to be guilty of wrongful conduct can be considered a whistle blower. Information disclosed by the whistle blower must constitute a serious wrong or have the potential for serious wrong.
73 Are there legal protections for whistle blowers? The False Claims Act of 1863 (revised 1986) defended whistle blowers to combat fraud by suppliers to the federal government during the Civil War. The act stipulates that whistle blowers are entitled to a percentage of monies recovered or damages won in fraud cases. The Civil Service Reform Act of 1978 also protects whistle blowers from wrongful dismissal or retaliation. Many states have additional laws protecting whistle blowers.
74 What is the Sarbanes-Oxley Act of 2002? This act is considered to be one of the most important laws related to whistle blower protection. While most whistle blower protection laws address remedies for wrongfully treated employees, this act requires publicly traded corporations to establish procedures to accept whistle blower complaints. Such corporations must also establish audit committees that accept internal whistle blower complaints regarding accounting and auditing matters. The Act also requires attorneys to report violations of securities law. Furthermore, the Act provides for the suspension or debarment of a public accounting firm that refuses to cooperate in an investigation conducted by the Public Company Accounting Oversight Board. All complaints must be filed with the Department of Labor. Whistle blowers who are victimized by their employers are entitled to reinstatement, back pay, interest, compensatory damages, special damages, and attorney fees. The law does not provide for punitive damages.
75 Is there anything wrong with blowing the whistle? Whistle blowers are frequently criticized for being disloyal to their organization. Organizations rely upon trust to act effectively. Moreover, information disclosed by the whistle blower is often considered confidential, and employees are expected to file complaints within the organization.
76 What is the justification for whistle blowing? Although loyalty to employers and trust within an organization are values worth protecting, these values, like most values, have prima facie value. Remember that prima facie values or principles can be overridden by other values or principles. In cases of whistle blowing, there are conflicts between values. On the one hand, it is valuable to be loyal and trustworthy toward employers, colleagues, and peers; conversely, it is valuable to protect the public interest by reporting criminal or seriously immoral behavior. Few if any values or principles are absolutely true. Most values or principles have exceptions. So, the potential whistle blower must weigh, balance, or prioritize the conflicting values. That is why whistle blowing is more justifiable the more serious the wrongful conduct.
77 What should a potential whistle blower consider? Is the situation serious enough to warrant blowing the whistle?Are there enough facts to establish serious wrongdoing?Are there established internal avenues to follow?What is your responsibility within the organization?What is the best way to blow the whistle?Should the information be revealed anonymously?
78 What are the moral grounds for protecting whistle blowers? Utilitarianism—Whistle blowers should be protected because it encourages people to reveal conduct that is harmful to the community and the long-term interest of the organization. By protecting whistle blowers happiness is maximized.Deontological—Protecting whistle blowers shows respect for the whistle blower. Failure to do so could constitute treating the person as merely a means for the sake of corporate profits, for example.
79 What constitutes an effective whistle blowing policy? Organizations should have a clear ethics policy that is reflective of the institutions values. There should be procedures for reporting immoral or illegal conduct, and personnel should be trained to investigate such complaints. Employees should be protected against retaliation. Organizations that make a commitment to cultivating an ethical culture will have fewer problems.
81 Medical Ethics What are the fundamental principles of medical ethics? Are there alternative models of medical ethics?What is the 4-topics method?
82 What are the fundamental principles of medical ethics? The great ethical traditions of virtue, deontology, utilitarianism, and care influenced medical ethics in a profound way. Some principles of medical ethics have been around for thousands of years. The Hippocratic Oath, which was formulated in ancient Greece, instructs physicians to do no harm. And Plato and Aristotle expressed their views on euthanasia and suicide. Contemporary medical ethics, however, has been influenced by the work of Tom Beauchamp and James Childress. Beauchamp and Childress articulated the following 4 ethical principles for issues in medicine:
83 Autonomy—Autonomy means freedom, so this principle means that we should respect people’s freedom or autonomy. This entails that patients’ should be informed of their medical condition and their treatment choices should be respected;Beneficence—Beneficence pertains to promoting well-being and happiness. The promotion of health and the elimination of pain and suffering are obvious outcomes of this principle;Non-maleficence—This principle instructs healthcare providers to do no harm.Justice—This principle pertains to fair access to healthcare services. It is a principle of non-discrimination.
84 Beauchamp and Childress contend that each of these principles is true prima facie. Remember that this means that healthcare providers ought to follow each of these principles, but if the principles conflict (they cannot do them all), they must decide which principle takes priority.
85 Are there alternative models of medical ethics?Yes. Edmund Pelligrino and David Thomasma emphasize the virtues that physicians need to cultivate. Albert Jonsen, Mark Siegler, and William Winslade focus on the details of clinical cases, rather than on principles. Rosemarie Tong and Susan Sherwin take a feminist approach to medical ethics that includes care ethics. There are other views, but this provides an orientation into the theoretical underpinnings of contemporary medical ethics.
86 What is the 4-topics method? Jonsen, Siegler, and Winslade present us with a model of medical ethics that emphasizes actual cases that healthcare providers are likely to face. Their approach is more practical than theoretical. They realize that healthcare providers must make difficult decision and that they need guidelines to solve the moral conflicts they face. In their introduction to Clinical Ethics, they say that to make good decisions regarding medical ethics, we must be attentive to the medical facts, the patient’s preferences, quality of life issues, and the context of the decision.
87 Why do these authors emphasize these four features instead of Beauchamp and Childress’s 4-principle model? They are emphasizing the fact that finding solutions to medical ethics cases is not a straightforward process of applying principles to cases. Cases are complicated by patients’ religious views, the psychodynamics among their family members, their educational level, their financial situations, new technological developments, and the uncertainties of medicine.
88 QuestionsDo you understand what is meant in saying that the principles of biomedical ethics are true prima facie?What would you decide in the case of Dax Cowart? How would you defend the ethics of your decision? What ethical theory supports your decision? Is there an ethical theory that might be used to argue against your view?
89 Brain Death What is the definition of death? Why was the concept of brain death significant?What is the medical and legal definition of death today?What criteria are used to declare brain death?Is brain death controversial?What other definitions of death have been proposed?
90 The Definition of Death Before the 1950s, a person was medically and legally declared dead if and only if the person’s heart and lungs had permanently ceased functioning. Because of a world-wide polio epidemic, health care providers had to manually pump air into children’s lungs to keep them alive—a valiant but inefficient treatment. Consequently, artificial respiration was used for this purpose and later for individuals who had suffered traumatic brain injury. This provided a gray area between life and death. Were those whose heart and lungs were kept functioning artificially but who had no evidence of consciousness really alive? And since heart transplantation could not be performed unless the circulation of blood and oxygen kept the heart viable, if heart/lung functioning remained the definition or criterion for death, taking a person’s heart for transplantation would constitute murder. For these reasons, the French proposed and a committee at Harvard developed the idea of brain death.
91 Why was the concept of brain death significant? Brain death served two important functions. First, if people receiving artificial respiration were never going to regain brain functioning, brain death provided the rationale for withdrawing treatment. After all, according to the concept of brain death, artificial respiration given to a brain dead person is circulating blood and oxygen through a dead person. Brain death=death! Second, brain death aided the goals of organ transplantation. People whose brain functioning had permanently ceased could be declared dead and then prepared for organ transplantation. This way organ transplantation of the vital organs (the heart and, in the past, the liver) would not kill the donor—the donor is already dead.
92 What is the medical and legal definition of death today? Today, death can be legally declared in two ways. A person is dead if the person’s heart/lung functioning permanently ceases. And a person is dead if the person’s brain permanently ceases. One of these conditions must be met. Physicians have declared death by the cardiopulmonary or the brain definition depending on the goals of medicine for particular situations. Most organs are retrieved from brain dead persons, but there are cases were individuals who are not brain dead are kept alive by artificial means. Sometimes these patients want treatment withdrawn, because they are tired of their deaths being prolonged. And some of these patients consent to donation. In these cases, treatment is withdrawn and the patients are declared dead after a couple of minutes of heart/lung failure. To avoid conflicts of interest, death cannot be declared by members of the transplant team.
93 What criteria are used to declare brain death?Determining brain death is complex and technical. There are differences among hospitals throughout the U.S. However, there are some criteria that are standard. As Jonsen, Siegler, and Winslade point out, such criteria include the absence of pupillary reflex, voluntary and involuntary movements, gag reflex, and brain stem functioning. Alternative diagnoses such as drug overdose and severe hypothermia must be ruled out. Students should also be aware that brain death is not the same as coma, persistent vegetative state, or locked in syndrome. In short, brain death is more traumatic than these other conditions that result from severe brain injury.
94 Is brain death controversial? Yes. The primary problem with brain death is that different parts of the brain are responsible for different functions. Making matters complicated is the fact that not all of the functions cease at once. So, how much of the brain has to cease functioning permanently to declare brain death? Today, the whole-brain definition of death has been accepted. What does this mean? Traditionally, the brain has been divided into those parts responsible for higher functioning (cerebral cortex) and lower functioning (e.g. brain stem). Higher functioning involves self-awareness, consciousness, emotions etc.; lower functions involving breathing, temperature and blood pressure regulation etc. When and only when the higher and lower functions permanently cease, the person is dead.
95 The problem is that even when medical professionals agree that a person is dead, their brains are still able to produce hormones and show electrical activity—evidence of brain function according to some commentators. For these reasons, some scholars have advocated another shift in the way we define and determine death.
96 What other definitions of death have been proposed? Higher-brain definition—This definition of death proposes that a person is dead if and only if the person permanently loses higher-brain functioning. In this way, even if a person’s brain stem is still functioning, but the person will never again experience thoughts or feelings, the person is dead. The higher-brain definition of death also allows for more organ transplantation since there are about 4,000 Americans who are in a persistent vegetative state (PVS). PVS patients can be declared dead according to higher-brain criteria but not by whole-brain criteria. Today, it is illegal to declare people dead according to the higher-brain definition.
97 Cardio-pulmonary definition—Since brain death has proven to be more complicated than originally thought, some commentators suggest that we return to the view that persons are dead if and only if their heart and lungs permanently cease. The problem with this definition is that it would undermine the goals of transplantation unless society accepted the view that vital organs can be taken from living persons, an unlikely and potentially disturbing position.
98 QuestionsDo you understand how the different definitions of death affect organ transplantation?Do you understand why it is contradictory to say that a person became brain dead at a particular time and later died?Which definition of death seems the most plausible to you?
99 Is managed care a good system? What is managed care?Is managed care a good system?
100 What is managed care?Managed care is contrasted with the fee-for-service healthcare system. In a fee-for-service system, healthcare providers charge a fee for each service provided. This system was financially inefficient, because healthcare providers had a financial incentive to provide many services. Moreover, if patients had health insurance to pick up the tab, they might seek diagnostic tests and treatments that were unnecessary. Managed care is a system devised to combat this waste of expensive healthcare resources.
101 Managed care organizations (MCOs) take a variety of forms such as health maintenance organizations (HMOs) and preferred provider organizations (PPOs), but they share some common features. First, MCOs are usually for-profit businesses that contract with hospitals and healthcare professionals to provide various services. Second, MCOs pre-pay for anticipated healthcare needs, so hospitals have an incentive to use their services efficiently. Third, MCOs emphasize preventive medicine. This makes sense because healthy patients do not cost MCOs money which means more profit for the MCO. Fourth, MCOs implement utilization review.
102 There are two components to utilization review There are two components to utilization review. Emphasis is placed on what is called evidence based medicine. This means there must be a scientific/medical basis for prescribing a treatment regimen. In this way, futile treatments or treatments with little benefit can be eliminated. Physicians are also reviewed to determine whether they are efficiently using resources. Fifth, patients in MCOs usually have co-payments for each doctor visit to provide them with an incentive to avoid medical treatment unless they are really ill or at risk for becoming ill. Sixth, MCOs emphasize the role of the primary care physician (PCP) as a gatekeeper. In some MCOs patients cannot see a specialist (which is more expensive) unless they receive a referral from the PCP.
103 Is managed care a good system? There is not a straightforward answer to this question. It is good medically and economically to emphasize preventive medicine and to find efficient ways to deliver healthcare services. However, managed care has received much criticism and has thus evolved to overcome the criticisms. In the past, MCOs often provided bonuses to physicians for keeping costs down, but this meant that patients were often under treated. Physicians also objected to the utilization review that enabled non-physicians working for MCOs to tell physicians how to practice medicine (e.g. that they should prescribe a less expensive drug). Plus, because MCOs contracted with a particular group of physicians, patients’ choices were limited in selecting a doctor—their favorite doctor might not be a member of that MCO. Some of these problems have been addressed. Bonuses to physicians for controlling costs have been eliminated in some plans and PPOs give patients more choices in selecting doctors.
104 QuestionsTo understand the healthcare system and managed care, we must reflect on our own experiences. When you become ill or concerned about your health, are you able to make an appointment without waiting too long? Do you have healthcare insurance? Do you have a physician who you trust? Does your insurance cost too much? Must you schedule an appointment with your primary care physician before seeing a specialist? How expensive are your co-payments? If you lose your job, will you be able to continue your insurance policy?
105 Given the fact that over 40 million Americans are uninsured, what changes do you suggest? Would you impose more taxes on the wealthiest Americans and utilize those revenues for healthcare? Would you alter the federal budget so that funds are taken from one program and given to healthcare?In America, we have a right to assemble, bear arms, vote, private property, and the pursuit of happiness. However, we do not have a right to a house or a good standard of living. Do you think Americans have a right (are entitled) to healthcare? Do children have a right to healthcare?
106 Organ Transplantation Routine RetrievalXenotransplantationSelling Organs
107 About 6,000 Americans die each year while waiting for an organ transplant. Since many people die without consenting to organ donation, the organ transplant community has suggested alternatives to address the organ shortage problem. Proposals include routine retrieval, xenotransplantation, selling organs, re-defining death, and developing stem cell therapies. Since we discuss the definition of death and stem cell research in other sections, here we will limit our discussion to routine retrieval, xenotransplantation, and selling organs.
108 Routine RetrievalIn America, we have a policy of explicit consent. This means that unless a person agrees to be an organ donor or the person’s family consents to donation, organ retrieval will not take place. It has been argued that organs should be retrieved as needed, no matter the person’s or family’s view of donation. After all, corneas and pituitary glands are routinely retrieved without people’s consent. Why not implement routine retrieval for hearts, livers, kidneys, and pancreases?
109 XenotransplantationXenotransplantation involves the transplantation of tissues and organs from a member of one species into a member of another species. It is cross-species transplantation. The use of pig heart valves has been the most successful use of animals for transplants. As far as I know, no transplant of an entire organ from a non-human to a human has been successful. However, the improvement of immunosuppressive drugs and the development of transgenic swine (pigs with human genes) have given some people hope that pigs can provide an inexhaustible supply of organs. In addition to the animal rights issue, there are viruses and bacteria that are benign in pigs that might prove harmful or fatal to human beings.
110 Selling OrgansCurrently, it is illegal to buy or sell human organs. Since not enough people become organ donors, some commentators have suggested that we provide financial incentives. More than likely, allowing people to sell their organs would save more lives, but is paying people for body parts ethical? Some people believe that paying people for their organs exploits the poor. In India, where buying and selling organs is legal, many impoverished Indians have sold a kidney for about $1,000. Other commentators add that a market for organs violates Kant’s second formulation of the categorical imperative—it uses people for the health benefits of others. Despite these criticisms, some authors say that America is a free country and argue that people have a right to sell their organs if they willingly do so. They point out that we allow people to sell their plasma, eggs, and sperm.
111 QuestionIf you are a policy maker, what efforts would you support in addressing the problem of premature organ failure?
112 Physician-Assisted Suicide and Euthanasia What is euthanasia?What is the difference between passive and active euthanasia?What is physician-assisted suicide?What is the Oregon Death with Dignity Act (1997)?What are the arguments defending euthanasia and physician-assisted suicide?What are the arguments against active euthanasia and physician-assisted suicide?
113 What is euthanasia?Euthanasia is often referred to as mercy killing. It is killing or allowing patients to die on the basis of compassion. The point of euthanasia is to eliminate patients’ suffering.
114 What is physician-assisted suicide? With physician-assisted suicide a physician prescribes a fatal dosage of barbiturates or some other drug for the sake of eliminating a patient’s suffering. Physician-assisted suicide is illegal in every state except for the state of Oregon.
115 What is the Oregon Death with Dignity Act (1997)? In 1997, the Oregon legislature enacted into law physician-assisted suicide under specified circumstances. For a person to receive a physician’s assistance in death, a person must meet the following conditions:
116 The person must be a resident of Oregon; The person must be at least 18 years of age;The person must be diagnosed as having a terminal illness by two physicians;The person must be evaluated by a psychiatrist;The person must sign an informed consent form;There must be two witnesses to the patient’s signing of the consent form.
117 What are the arguments for euthanasia and physician-assisted suicide? There are several reasons why many medical ethicists and citizens support the legalization of active euthanasia and physician-assisted suicide. First, there is the issue of patient autonomy. America’s emphasis on an individual’s right to make his or her own choices extends to healthcare. They believe that patients have the right to decide their own fate, especially when they are suffering. Second, eliminating suffering is a part of good medical practice. In cases where people cannot be cured, they believe that it is more humane to assist people in dying than it is for them to linger in pain. Third, since some patients have attempted to take their own lives, receiving a physician’s assistance in death mitigates against a patient from further harming himself or herself with a botched attempt.
118 What are the arguments against active euthanasia and physician-assisted suicide? Many medical ethicists and citizens believe that euthanasia and physician-assisted suicide are immoral and should be illegal. First, many commentators believe that patients at the end of life should receive better pain medication and comfort care, not assistance in killing. Second, they believe that active euthanasia and physician-assisted suicide violate the principle to do no harm. In other words, they believe it is a violation of professional ethics. Third, some commentators fear a slippery slope effect. They believe there is a danger that physicians will become increasingly indiscriminate in who they kill or assist in dying. In the Netherlands, for example, people who are depressed have been put to death. Fourth, although these commentators acknowledge the importance of patient choice, they believe that the principle of autonomy does not extend to killing or assisting people in death even if they consent.
119 Questions Do you support physician-assisted suicide? Do you support active euthanasia?
120 Although withdrawing treatment is often justifiable and non-controversial, consider the case of Dr. Joan Owens. In this case Dr. Owens was the patient who gave birth to a child with Downs Syndrome with duodenal atresia. Duodenal atresia is the condition whereby a person’s top portion of the small intestine (duodenum) is closed, thereby preventing the passage of food. This condition is curable with surgery and lethal without it. Because Dr. Owens did not want a child with Downs syndrome, she refused to consent to the surgery. After consulting with lawyers, the physicians decided to honor Dr. Owen’s parental authority to block the surgery. At another hospital, the outcome might have been different. The baby died 12 days later from starvation. This is considered a case of passive euthanasia but unjustifiable by many. What would you do if you were the physicians? Justify your response.
121 Stem Cells and Cloning What are stem cells? Why are scientists interested in stem cell research?Are there potential problems with stem cell research?What are the ethical issues associated with stem cell research?What is cloning and how is it performed?Would human clones be identical?Why is cloning often mentioned in the context of stem cell research?
122 What are stem cells?Stem cells are undifferentiated or unspecialized cells that give rise to specialized cells that constitute the various tissues in our bodies. There are embryonic and adult stem cells.
123 What are embryonic stem cells? Embryonic stem cells are usually taken from the gonadal tissue of aborted fetuses or from early embryos (called blastocysts) in in vitro fertilization clinics. At the point of conception a zygote is formed (the union of a sperm cell and an egg cell). The zygote begins dividing into more cells. 4 or 5 days after conception a blastocyst is formed. The blastocyst is a ball of cells with an inner mass of stem cells.
124 What are adult stem cells? Adult stem cells are taken from the various tissues in our bodies. Adult stem cells have been found in the liver, skeletal muscles, bone marrow, the brain, and other tissues. Adult stem cells give rise to other cells of a particular type of tissue when the tissue is damaged and needs repair.
125 Why are scientists interested in stem cell research? Stem cells have the ability to replicate indefinitely and to develop into various cells and tissues. For these reasons, stem cells have the potential to revolutionize medicine. The hope is that stem cells will lead to regenerative medicine. That is, when people’s tissue or organs are badly damaged, it is hoped that stem cells will regenerate the tissue. Preliminary research has indicated that embryonic stem cells are more versatile than adult stem cells and therefore have more therapeutic potential. Embryonic stem cells have the potential to be stimulated to develop into various types of tissue such as liver, heart, or neural tissue. The hope is that this science will overcome the need for organ transplantation and will heal those who have suffered spinal chord injuries.
126 Are there potential problems with stem cell research? Yes. If you are familiar with organ transplantation, you know that transplant recipients must undergo immune suppressant drug treatment, because our bodies have a natural reaction to attack foreign materials including foreign tissues and organs. The same problem exists for stem cells. If a patient receives an injection of someone else’s stem cells, the patient’s immune system might reject those cells. So, immunosuppressive therapy might be necessary for patients receiving stem cells. Moreover, it has been shown that stem cells sometimes cause tumor development.
127 What are the ethical issues associated with stem cell research? As you might have surmised, embryonic stem cell research is more controversial than adult stem cell research. Many people believe that an embryo deserves the moral consideration and legal protection offered to human beings. So, there is an important issue regarding the moral status of an embryo. There are several different views of the moral status of the early embryo.
128 The Catholic position is that life begins at the moment of conception The Catholic position is that life begins at the moment of conception. So, the zygote, blastocyst, and fetus deserve moral consideration. Others argue that an embryo has moral status in virtue of its potential to develop into a human being. This argument has become more complicated, because cloning technologies enable any cell of our body to become a human being.
129 Defenders of embryonic stem cell research often take a developmental approach to moral status. These thinkers believe that an entity gains or develops moral status as it develops biologically and psychologically. Some believe that that the early embryo (blastocyst) is a mass of cells that does not possess any moral status while others believe that it has some moral status. They also argue that even if the blastocyst has some moral status, the potential benefits of regenerative medicine provide a utilitarian justification for such research. Another view is the existential view that a human being does not have moral status until it is born and begins its life as a separate individual.
130 The final view is a relational view The final view is a relational view. Some argue that the moral status of the blastocyst depends on whether other people desire to develop a relationship with that entity. So, the blastocyst that is in a woman’s womb or that will be implanted into a woman’s womb has more moral status than a blastocyst that is frozen in an in vitro fertilization clinic. Each of these views brings a lot of controversy.
131 What is cloning and how is it performed? Cloning is the near duplication of an individual organism. There are two well-known techniques for cloning. Parthenogenesis involves the electrical stimulation of an egg cell that begins cell division as if it were fertilized. Somatic nuclear transfer requires more explanation. A somatic cell is any cell in your body other than sex cells (the sperm and eggs). This type of cloning involves removing or deactivating (enucleating) an egg cell and then transferring the nucleus of a somatic cell into the egg cell.
132 Would human clones be identical? No. First, clones are nearly but not exactly identical. To a large extent, our DNA determines who we are. But clones do not have the exact same DNA % of our DNA is in the nucleus of each of our cells. 1-3% of our DNA is in the mitochondria outside of the nucleus. So, when we clone by somatic nuclear transfer, it is not necessarily the case that the mitochondria is transferred as well. Second, our personality is closely associated with how our brain has developed. Our genes which are made of DNA do not provide all of the information for the way our brains develop. Our genes provide the information for the development of the basic structure of our brains, but our brains finalize development only through environmental stimuli which varies for everyone.
133 Why is cloning often mentioned in the context of stem cell research? Remember that one of the problems with stem cell therapy is that we will probably have an immune reaction to foreign stem cells being placed in our bodies. In theory, this problem can be overcome if the stem cells were taken from our own bodies. One way to do this is to clone ourselves and take the stem cells from the embryo once it develops into a blastocyst.
134 Questions What is the moral status of a blastocyst? Do you support embryonic stem cell research?Do you support cloning for the purposes of research?Do you support cloning for the purposes of reproduction?