 And we also do here is let's hide this. Yeah. Thank you and get rid of that Okay, thank you. Good Thanks. Okay. So it is my pleasure to introduce the speaker of this this noon and Dan Brutney is speaking Dan is the Florin Harrison Pew professor in the Department of Philosophy and the college at the University of Chicago He is also an assistant an assistant director of the McLean Center and an associate faculty member in the Divinity School I think many of us know professor Bradney well, but for those who don't he's a graduate of Harvard University Where he received both his BA and his PhD in philosophy? He writes and teaches in political philosophy bioethics and philosophy and literature His recent publications include decisional capacity to philosophical problems the theory Rawls the 1844 marks in the market and Nostromo and negative longing Okay, thank you Professor Bradney is a long-standing member of the faculty of the McLean Center and he has provided really thoughtful insights at our weekly ethics case conference for many years and he's had a really major impact on the clinical Ethics education of literally hundreds of McLean Ethics fellows and so it's a real pleasure to welcome Dan. Thank you Thanks for the invitation. Delighted to be here. It's good to see a bunch of faces. I know So I'm gonna do what philosophers do which is I'm gonna read the paper and if I remember since I'm a philosopher I might forget I'll keep the slides rolling so in his 1908 book Pragmatism William James writes whenever a dispute is serious We ought to be able to show some practical difference that might follow from one side or the others being right. I Suspect that today. I'm going to disappoint William James What I have to say is highly unlikely to make a practical difference at least not in the sense of Changing anyone's clinical practice. What I hope to do Not can't Here. How's that better? Yes, okay. Well, I hope to do may and you know, you'll decide whether this counts as making Some kind of a difference is to provide you with a broader Conceptual context for clinical practice. I'll eventually be making some remarks about medical ascent Mostly in the pediatric context as distinct from medical consent And there's an obvious puzzle about medical ascent Seek it seems misguided After all the criteria for decision-making capacity are not arbitrary I doubt that there's fundamental disagreement about whether say the standard criteria say the Berg, Abel, Bam, Grissel criteria are more or less correct And if they're correct then patients who fail to meet these criteria just don't have decision-making capacity And so they shouldn't get input by hypothesis anyone for whom from we're seeking ascent not consent has failed to meet those criteria yet From observing pediatricians I have the strong intuition that a patient that they believe that a patient who lacks capacity Should still have some kind of input into the medical decision-making process Now this concern might be merely instrumental getting ascent might reduce patient resistance to treatment Still, I think that in seeking patient ascent clinicians often believe that something moral and not merely instrumental is at stake I want to talk about what might justify that belief As a philosopher my interest here is that the puzzle about medical ascent Elicits fundamental questions about what it is to possess great value specifically as a human being and to be in certain valuable relationships simply as a human being And the claims that a human being possesses such value and ought to be in such relationships are crucial to the patient choice model of clinical ethics That model is our current model and it needs periodic interrogation because like seeking ascent at first glance It's quite peculiar The practice of medicine is about helping people it's about the promotion of individual human good Yet the current model does not prioritize individual human good it prioritizes patient choice Okay, you might claim that patient choice is the route to the patient's good But I think as all you clinicians know better than I it's not always a reliable route Moreover recent work in behavioral economics cast considerable doubt on the link between patient choice and the patient's good So that's why it's important that the current model is supposed to be justified by other moral values Values that in principle might be in particular cases more important than the individual human good That last claim is both practically important and philosophically interesting It also points to what's at stake with ascent Sometimes seeking ascent will help to figure out what's best for the child But for the most part if all we cared about was the child's good There'd be no little role for ascent procedural values and not substantive values are actually at stake So when a patient wants a medical option that's not likely to realize their own best interests or in philosophers lingo their own good There's a conflict between between procedural and substantive values The current model normally accords priority to procedural values to patient choice or with surrogate decision-making to substituted judgment I'm sure this claim is only roughly true in practice But it's true enough to make one wonder why this is actually the right model to follow So today I want to do two things that in a way are going to be in tension with one another I want to extract and puzzle over a pair of values and a pair of Relationships that I take to be central to the patient choice model and I also want to invoke precisely those values and those Relationships values and relationships that I'm going to claim are philosophically questionable To note some reasons that would justify seeking pediatric ascent I'm going to start by pointing out that in philatop philosophical terms our current model is rather fragile Yet I want to be clear about the force of such claim Back in my graduate student days my dissertation advisor once remarked that the only thing we can be confident of about any Philosophical theory is that it's wrong. I Suspect that the same applies to any model for medical decision-making Indeed, it's a feature of doing specifically applied moral philosophy that one doesn't necessarily look for the absolutely best alternative I might be right that the current clinical model has its problems even significant problems And yet that model might that model might still be superior to any available alternative That's why I think the apparent tension in my talk is only apparent What I have to say today could be taken as a prolegomenon to use a philosophical word to tweaking the current model Yet not necessarily Nothing that I say will entail that we should engage in tweaking the model let alone in wholesale changes That's why I think My predecessor in philosophy William James is going to be disappointed in me To put the point differently in clinical ethics as in other areas of applied philosophy What we really need is a theory of the second best To take us away from large Philosophical uncertainties and disputes and to provide us with a model that is both Minimally or sufficiently morally acceptable and also sufficiently operation that however is a talk for another day Well, I'll be saying today is tentative and first draft. I hope that there's going to be serious challenge on many points Of course, I'm a philosopher and in keeping with my particular form of Professional deformation today's talk is going to be pretty abstract. I do hope you'll bear with me I think abstraction is necessary in this area if we're to go beyond mere catchphrases Now, let's see if I can get this right Some bioethicists seem to me to dodge the deeper issues by perhaps unconsciously Indulging in catchphrases phrases to take an example One writer notes that now quoting most pediatric bioethicists and clinicians are quite comfortable Applying cons moral imperative children should never be treated as means only but always also as ends in themselves unquote Now God does believe this and perhaps it's even true that we shouldn't treat a human being as a mere means But if this thought is true, you might think it would be good to know why it's true You might think you would be good to know what there is about a human being that makes up the kind of being that should not be treated as a mere means Knowing this might help us to know what kinds of actions to avoid. In fact, as I'll repeat a little later children are a problem here Because they don't seem to possess full rational nature, which is the specific thing that cons himself believes should never be treated as a mere means Indeed, it could be argued that any patient who fails to meet the standard for decisional capacity is Vulnerable to being said not to possess full rational nature So on one way of taking cons and his talk about treating others as ends in themselves and not mere means No patient without capacity is the kind of being we should treat as an end in themselves and not as a mere means So if you do believe That no patient should be treated as a mere means. I think we ought to try to understand why not Okay, now to the body of my paper Let's start with the Berg Applebaum and Grisso criteria for decision capacity they are as you all know First the ability to communicate a choice Second the ability to understand relevant information Third the ability to appreciate the nature of the situation and its likely consequences and fourth the ability to manipulate information rationally Note that these refer only to cognitive capacities along with one communicative capacity The guiding thought seems to be that patients should understand the medical situation to some threshold level of understanding Understand that it's their medical situation That seems to be the usual interpretation of the appreciation criterion and they should be able to state or in some other way makes Efficiently evident which of the proposed medical options they prefer Now these criteria are value-free in the sense that they seem not to exclude any specific value on the usual loss It's merely a matter of what the patient prefers or desires Marley speaking patient preferences or desires are supposed to rule the day So the philosopher is going to enter here and ask why a patient's preference or desire and I'm going to from now on use these terms Interchangeably should rule the day. Why should satisfying the capacity criteria and having this or that desire be sufficient To make it morally correct to allow a patient to make an egregiously foolish and even self-destructive medical decision What's so great about having a bit of knowledge coupled with a desire? This might seem to be a classic case of a little knowledge being a dangerous thing So I'm raising this issue because here too bioethicists sometimes don't push as far as they should For instance Mark Navin and Jason Wasserman argue that the reason to ask for pediatric ascent is that children are often capable of forming and articulating what they call preferences About this I'm new I'm going to now merely repeat what philosophers have long noted Preferences or desires can be transient arbitrary and trivial My desire for world peace is a desire for something intrinsically good My desire for a large slice of chocolate cake is also for something good Maybe less good than world peace and depending on my health perhaps also not really so good My desire that my lifelong rival suffers severely and perpetually is a desire for something bad It looks like whether my desire ought to be satisfied depends on the goodness or badness of its content Not on the fact that I have it Now a standard response would be that in pursuing my desire at least for the clinical ethics I'm exercising my will and that I have a moral right not to be interfered within the exercise of my will Unless that exercise harms someone There's surely something to this but keep in mind two things about the value of non interference with the pursuit of a desire of a desire First we constantly at least I do constantly interfere with our pets desires I'm assuming those of you with pets do all the time and we think we're right to do so if Non-interference with human desires is important. There must be something to distinguish them from say my dog's desires There must be something about the human will that makes my pursuit of my human desires different and second in clinical contexts Non-interference in the most basic sense is at stake only when the issue is whether to compel treatment It's not a stake when the issue is whether to proceed with the treatment the patient has asked for After all when the patient asked for treatment T one could respect the value of non interference by doing nothing non interference is a negative claim if the Capacitated patient's desire makes a positive claim for treatment of some kind. We need to understand why So we have to say something about specifically human choice, which means we have to say something about human action Okay So now I want to talk a little bit about action Our startle notes that human action is inevitably oriented towards some conception of what's good There's an idea of the good or of some aspect of the good behind every action Our startles thought which is an obvious thought is that when we act we believe there's a sufficient reason to do this Particular action here and now and that reason sooner late or later bottoms out in the belief that the action in question is pointing toward What we think is good We're inevitably exercising well or badly what philosophers call practical reason So I'm going to expand on this briefly First the thought refers to every action being driven by the belief that it's tied to something good at least in the long run However, in a given case the belief in question might be mistaken. I Often act on mistaken belief about what's good I sometimes take a goal to be good which isn't good and I sometimes take an incompetent means to something that is good And so I fail to attain it There are many ways in which my practical reason goes wrong Our startles point to simply that human action is only intelligible what it's seen as pointing to pursuing something that the agent believes rightly or wrongly to be good Otherwise, we just can't make sense of what the agents is doing. We can't make sense of why they are doing what they are doing Now the claim that we act for a reason applies not only to adults but to children past a certain modest age Take William Carlos Williams famous story the use of force about a girl with diphtheria who does not want to open her mouth There's a lot going on in that story, but what I want to highlight is that and I'm sure all of you know it especially new pediatricians In the battle of wills between the child and the pediatrician It would be wrong simply to say that the girl merely has a preference to keep her mouth closed Williams describes her as concealing a secret and is waging a battle She has her reasons and a part of what makes the violation involved in forcibly opening her mouth a violation of a human will of a reason-giving capacity is that she has those things No, this is all I think very different from what goes on when I try to give my dog his medicine So as I've said when we speak of reason for action, there are reasons and there are reasons some are good some are bad Such goodness or badness might be tracked along several different dimensions Here I want to know too broad and purely formal categories of reasons for action To see the difference between these categories, let's look at a pair of hypothetical patients I Take the first from a book with which you're all familiar Johnson Seigler and Winsley clinical ethics The second we'll see in a moment is my own invention, but it's a standard Jehovah's Witness example So here's the first example The patient is a 24 year old graduate student. He comes voluntarily to the emergency room Previously in excellent health. He's complaining of a severe headache and stiff neck Examination of spinal fluid leads to a diagnosis of bacterial meningitis Administration of antibiotics is recommended when he's told his diagnosis and that he'd be admitted to the hospital for treatment with antibiotics That the patient refuses further care The physician explains the extreme dangers of going untreated risk of death or permanent disability and the minimal risk of treatment The young man persists in his refusal citing merely the fact that he deeply hates shots Other than this strange aversion he exhibits no evidence of mental derangement or altered mental status that would suggest Decisional incapacity and then for the second example This is a 56 year old devout Jehovah's Witness She's read broadly in and believes deeply in witness theology She's lived her life in accordance with the witness precepts And she sees a substantial part of the meaning and value of her life has tied up with her witness identity And so with compliance with the requirements of that identity She now needs a major operation in order to survive But the operation can't be done without significant use of the kind of blood products that witness theology proscribes Therefore she has refused the operation Now in both cases It would be possible to help the patient perhaps even to save the patient's life by compelling treatment When I use these examples in classes and those of you who've been in my class and have heard them um There are some people in the class who say it would be morally justified to administer antibiotics to the graduate student Without his consent anybody here Be bold Anybody ready to compel consent there? Come on Yeah, yeah, okay his back is turned. He's sleeping. You're really good with a needle. He won't even know. Yes a few Maybe maybe okay um very few Say that it would be justified to operate on the Jehovah's Witness Without her consent anybody for that one? No And even those who say that compelled treatment treatment would be morally wrong in both cases tend to be A little bit more conflicted about the graduate student case So there seems to be a difference between the cases Now compelled surgery is a greater inversion of the body than a compelled injection But I don't think that that that distinction is what accounts for the difference in responses I think the difference in responses stems from the fact that while both cases involve The issue of overriding the patient's will or is all put at the patient's agency Only the witness case also involves violating from her point of view deeply undermining a central part of what the patient sees as giving her life meaning It violates what i'm going to call her authenticity Now i'm not really keen on the label's agency and authenticity other writers have used other labels to get at the same distinction The central point whatever the label is that there's a difference between interfering with the choice of a moment And interfering with the vision of how to live The graduate student is refusing treatment for a reason. He doesn't want an injection. He is exercising his will Kant would put it that he's setting himself the end to not have an injection He is not being causally pushed around by his desire not to have an injection He's taking the fact that he has this desire the desire not to have an injection to be a sufficient reason not to have one He thinks it's good to refuse it Still this is a one-off By hypothesis The refusal here has not tied to to any origin for him pervasive vision of the meaning of life By contrast in the case of the witness the refusal of surgery is precisely tied to such a vision When I refer to such a larger vision, it's not easy to nail down what kind of phenomenon is involved Bernard Williams a great philosopher argues that human beings have what he calls ground projects The central projects that give their life purpose and meaning John Rawls Following another earlier philosopher Josiah Royce talks of agents is having life plans um, I didn't put up on the slide, but Hollywood says that you should follow your dream Where this is supposed to be not merely something that you prefer But something you find important to crucial to your sense of who you are These things a ground project a life plan a dream They might not be precisely identical But they point to the fact that much human action isn't a one-off It's rather part of a relatively extensive view of what makes one's life a good life Human beings have both the capacity to exercise the will and the capacity to form to endorse to pursue and occasionally to revise a life plan Now here things get tricky and for more than one reason These capacities have a complicated relation to the patient's best interest to the patient's good So note a couple of things first Each capacity is formal In the sense that it can be pursued exercise rather than the pursuit of what is bad as well as what's good I exercise my will just as much when I act foolishly or wickedly as when I act intelligently or virtuously Similarly, my life plan is just as much a life plan when it's foolish or wicked as when it's intelligent or virtuous Nevertheless second thing to note The exercise of these formal capacities might to be thought to be constitutive of at least part of a patient's overall good It's normally good not to have one's will controlled by others and not just for instrumental reasons There's some intrinsic value in the idea. You're not the boss of me That's supposed to be something that some of us want to say often enough As for authenticity It's tied to the concept of individualism Yet the celebration of individualism is of relatively recent vintage It's hard to date these sorts of things in the history of ideas But we might date its prevalence as a major value to around the time of the 19th century romantics Even then the value was decisively rejected by many at the time by say the contemporary puritans For whom the exercise of your own vision was exactly a form of the kind of disobedience to god's law that got us in trouble Even now there are traditional societies that would reject the goal of following your dream The point is that authenticity has not always been thought to be basic to the human good Part of the complicated relation between authenticity and the good can perhaps be seen in the case of an elderly man We saw this case a few weeks ago. Call him frank He's got increasing dementia and an anger prone personality He has no family or friends if after a hospital stay he's returned to the apartment where he lives alone There's considerable risk that he'll fall or that he'll fail to take his medication or in some other way He'll be injured or even dying However, if he's sent to a nursing facility, they'd likely put him in physical or chemical restraints Because of his tendency to anger and that seems like an awful existence If someone could exercise substituted judgment Perhaps it would be clear that frank believes that his good involves living and maybe even dying at home by himself And we might even think that because frank believes this Living and maybe dying at home by himself would be better for him than being sent to a nursing facility But in the absence of anyone who could affirm that frank takes his own good to involve going home Apparently sensible thing to do and my memory is that's what was done Is to send him to the nursing facility on the grounds that given what we know Doing so is in his best interest What I want you to note is that what's going on here is not that frank's belief about his own good Makes going home better for him His belief about the good does not make it so My belief about the good does not determine my good any more than my belief about the sun rising tomorrow Makes it rise Rather, we believe in the procedural good of living in accordance with one's own values And if we could invoke that procedural good in frank's case doing so Might tip the value scale and overall make it better for him to go home My reason for going through these features of agency and authenticity is that these values are so frequently invoked And so frequently instantiated the bedside that we can overlook the fact that a moral commitment to either of them Let alone to both is a very heavy duty and suspect commitment Let's start with agency almost everyone would accept that agency has some value But not everyone would accept that it has the overriding value accorded it by our clinical ethics model So here's the philosopher richard arneson Voluntary choice is important, but does not plausibly have make or break significance It's a mistake to make a fetish of voluntary choice It remains the case that that sometimes a hard coercive shove away from the bad can improve anyone's life Go back to our graduate students arneson clearly would think that balancing continued life may be 50 years of good life Against overriding the aid the the student's agency very briefly to give him a quick coercive shove um would be Clearly better to do now. I will say arneson is an act utilitarian And so he's acting he's judging in accordance with act utility But what's to be noted here is that the priority that we give at the bedside to the exercise of the patient's will Is something which maybe it's the right thing to do, but it's not Obviously the right thing to do simply because it falls under a widely accepted moral principle on the contrary There are widely accepted moral principles that would say it's sometimes the wrong thing to do As for authenticity That's the value that I think undermines a commitment to using substituted judgment Insurgent decision-making and to repeat it too is disputable Some current philosophers rejected or at least insist that it has serious value Only when the agents believes more or less track the truth and the agents values are more or less reasonable For instance, joseph ross insists that authenticity is valuable Only if exercised in the pursuit of what is actually good now what you believe or the patient believes to be good But what's good He's not impressed ross is not impressed with the idea of following your dream merely because it's your dream Philosophers sometimes make lists of valuable things and activities That's say of basic human goods so Let me go through Sort of what they found or at least mention them The scholar mark murphy gives the list. He's a natural law theorist He gives the list of fundamentally valuable things Provided by seven philosophers committed to the tradition of natural law I won't go through it all But I want to note that of those seven philosophers each of them has you know Six or eight or 10 valuable things only one list authenticity among the things that are fundamentally good The philosopher derrick farp Parfit who's has a famous objective list good of what's list of what's good doesn't include it at all Um our own martha nussbaum across the midway Who has developed the thing called the capabilities approach for human flourishing? She does include practical reason In the list of capabilities that whose exercise is crucial to human flourishing But she also includes lots of other things And she provides no priority rules to decide conflicts among these capacities Now there are some philosophers who would be on the side of authenticity Ronald dworkin for instance was a big proponent But to give you a feeling for the issue that goes beyond just invoking Names of philosophy professors. Let's take a patient with anorexia nervosa Suppose the patient truly believes that being thin is more important than extended life Her life plan embodies this belief Should we let her starve herself to death? Yeah, I know in practice It might be very difficult to save such a patient's life for very long Perhaps the patient's right against bottle invasion is sufficient to prevent force feeding Especially if the forced feeding has to be done repeatedly But those last two considerations are very different From the substantive claim that the patient's judgment about her own good And the authentic life it might generate regardless of its content has overriding moral weight That's a big claim and it needs a big argument to support it In the case of the patient with anorexia nervosa myself. I think that claim is absolutely false But one further point As I say the value of authenticity is what justifies using substituted judgment There's evidence, of course that surrogates are not good at knowing what the patient would have wanted But that aside there's reason also to think that the patient that is a human being It's not especially transparent to herself. Yeah But that aside as well What I want to note is that the value of authenticity seems to rest on a metaphysical premise That's not obviously true Here's a way to see the point One thought about substituted judgment might be that it's supposed to continue the patient's story The narrative of their life The goal is to maintain the unity of the patient's life But this assumes ex ante that the patient has a single determinant story or a single determinant picture of their life Now this could be true with some patients say with our jehovah's witness patient However, with many of us the narrative unity of our life is generated retrospectively At some point I go down path alpha rather than beta and now years later. That's the story of my life I can't now imagine myself as a person who doesn't have the very specific children that I have But supposing that I hadn't met my wife Okay Now I wouldn't be able to imagine myself without other specific children Um, that can be true for many of the choices that we make We make them perhaps tentatively perhaps they're even forced on us in various ways And then we go down that road and that's who we become the idea that there's some being ex ante that's already there Well, maybe but that's again the kind of promise you better argue for um Peter Strausson and other great philosopher notes that a person's ideal of life the thing that's supposed to be generating this thought that you have A vision that you are pursuing often changes dramatically over time possibly over a relatively short period of time So the concept of authenticity relies on what might be a very suspect metaphysics. Um, and If many of us are not merely ignorant of ourselves, but are changeable creatures Without much of an essence if that's the kind of being a human being is Authenticity might go out the window and then what's our basis for substitution? Okay, quick summary of the last section of the talk I'm enduring for time Okay, I think so in our modern world. We think that there's intrinsic value to facilitating the pageants patience agency agenticity No, just agency and authenticity um These provide us with moral basis for the various steps of the patient choice model Maybe such values are justifiable. Maybe they're suspect But and now I'm going to pivot to talking about a sense These are scalar capacities One could have them to some degree even if one doesn't have them to whatever is considered To be threshold for sufficient possession of these capacities The capacity to determine what counts as a sufficient reason to to do or not to do action a Or to pursue or not to pursue long term plan p is something that develops over time and comes in degrees It's partly that the actual content of our values develops over time That's true and important beyond that the very ability to think about what to do in a reasoned way also develops over time The ability to weigh competing values to understand the trade-offs and a life plan that too develops over time My claim and I assume this will not strike any pediatrician as controversial Is that a major reason to seek patient child ascent is that these two valuable capacities exist to differing degrees in patients without Decisional capacities say children to seek pediatric ascent is a way to register The no doubt limited but actual presence of these valuable capacities Now i'm not at all qualified to say when children have either of these capacities To the point that it becomes appropriate to seek ascent. I want merely to note a couple of things First although my focus today is on children Much of what I have to say can apply to adult patients who have lost capacity Such patients might have some degree of capacity for agency and authenticity Discussing authenticity Agnes Jaworska gives an example of an elderly man with considerable dementia who wishes to buy a pickup truck He doesn't have capacity, but he has a reason for wanting to buy the truck It's part of his picture of what the good life involves a man needs his truck. He's reported as saying Clearly his all things considered good does not involve buying the truck His decision maker is not to is right not to do so But there does remain here an element of the man's good his quest to lead a life in accordance with his beliefs and values That's being overridden and there's a cost therefore to denying him this Second another kind of example One might think that in scarce lifesaving resource situations the kind we've recently had other things being equal The morally proper thing to do would be to give the scarce lifesaving resource say a vaccination to the youngest child So now we're imagining a different situation than the than the covid pandemic Doing so giving whatever the resources to the youngest child would maximize the number of overall life years that would be saved In fact in the recent literature on the topic, this is pre-pandemic Some writers disagree They urge that priority should be given to adolescents They claim that the older children but not the younger children have and they use the words projects Have something akin to life plans These writers then add that it's worse to lose the opportunity to pursue one's already formed projects To pursue one's life plans than simply to lose more years of life We prevent more harm they say by enabling the older children to continue with their projects Now i mentioned this literature not to wrestle with the substantive question here But just to show that some writers are convinced that the concept of a project the concept of authenticity does indeed Apply to some pediatric patients and in certain contexts it can be given significant weight Okay, I've been talking about morally relevant capacities, but there's a different way to approach the issue of ascent This would be to focus on certain morally relevant features of the patient-clinician relationship So now I want to talk about respect It's constantly said that the that the clinician must respect the patient Unfortunately, this concept opens up yet another philosophical can of worms Respect is an attitude and like most attitude. It's it's an attitude with an object However, that object can be of different kinds and so can amount to different kinds of respect In baseball a batter might respect the pitcher's curveball, but that's not the kind of respect We have in mind in the clinical situation When con talks of respect for the humanity in a person He means respect as I say for rational nature And what he means is that I'm to treat the rational nature in a person in a certain way Not merely instrumentally as when I have to think about whether to swing at that curveball, but intrinsically The fact that I had a patient jack is is respect worthy makes a moral claim on me That restricts the ways that I'm permitted to treat jack Now for the can of worms It looks as if I need to determine what the feature of jack is that makes a moral claim on me the feature that entitles jack to respect when con refers to Rational nature he seems to mean are practical rational capacities. So assume con means or Maybe he should mean the two practical capacity that that I've just been discussing So let's assume that possession of these capacities is sufficient to be entitled to respect of a certain kind Unfortunately Although possession of these capacities can be a matter of greater or lesser degree Respect seems to be an on or an off thing. We either respect somebody or you don't um And since by hypothesis children keeping to that example Don't have the two key capacities to a sufficient degree That don't have the capacities to the threshold degree of an adult Maybe it would follow that they're not entitled to respect But that seems clearly wrong Consider also that adults who are severely cognitively disabled don't have these rational capacities To a sufficient degree they might have them to a very limited degree On the premises just given such people seem to be excluded from respect But if children and adults who are cognitively disabled are excluded from respect Then they are excluded from the moral and practical protection that being respected involves And as I say most of us think that's profoundly wrong It's a conclusion that I think we should deny So that's one hormone of the philosophical dilemma To grasp the other horn of the dilemma Would be to reject the focus on rational capacities But instead to say that the respect worthy property here is simply being human One says that any human being is entitled to respect Period on this strategy We don't need to search for any morally relevant property other than your human Now this will handle the successfully the cases that I just mentioned Any being with a certain genetic constitution gets to be respected On the other hand, this looks like mere table thumping Or if you want to be in the Peter Singer realm, it's going to be speciesist It gives moral priority to human beings over other human beings for no other reason Than that we're just human period But offhand one might think that we should be able to say something That explains why human beings are entitled to respect Something that a member of a different species Say dolphins or if you like plingons Could ultimately have But what would that property be such that literally all human beings have it No one has yet proposed a plausible property A property that all human beings have to a sufficient degree And that's intuitively respect entitled The journals have been chewing on this for a long long time Called the problem of personhood You run into it obviously in the debates about abortion The sufficient exhaustion with the problem that there's currently a movement to get rid of the very concept of personhood The thought is that we should focus on the cases that don't fit the personhood model And the ones that we think nonetheless Entitled people to proper treatment and respect and take those cases as our moral paradigms I'm not going to get into this tangled literature Because first of all it's precisely the status of non-capacitated patients such as Children that drives the concern with rejecting personhood and because second And this is the important thing if we reject personhood We're going to be rejecting a basic plank Of the clinical model That's really what's going on when you're talking about say agency and authenticity These are supposed to be things that are features of persons distinctively So to get rid of personhood as a concept would be to put the model in question Okay One last relationship and then I'll be done This will be quick I want to close today's talk By talking about trust It's a very puzzling concept In ordinary language the term is used in multiple ways At times we use the term to refer to mere rational reliance that is to believing And maybe to acting on the basis of what we take to be the probabilities At other times to trust refers to believing or to acting in the space that remains once all probabilities have been left behind There's a large difference between saying I trust Jill because she has behaved well many times in the past And just saying I trust Jill even though I have little or no experience of Jill If you like we could call trust that goes beyond rational reliance pure trust Usually I'm simply going to refer to trust My interest is in the clinical relationship of trust that involves the patient Committing to the clinician's care with a confident that goes beyond what rational reliance would warrant I want to be clear that such an attitude of trust what I've called pure trust On that one person might have in another is neither rational nor irrational That's because as I say it obtains when we're no longer in a position for rational assessment be it pro or con Uh, I'm going to digress to a brief personal example. I had knee surgery last year I consult Peter knows this because I talked about it. I consulted surgeon a I consulted surgeon b The outcome data for each were excellent So were the references, but I trusted surgeon a and I didn't trust b Yet this trust and distrust was the result of a pair of 15 minute encounters I needed the surgery that was clear. I had to make the choice Now my choice to go with surgeon a was rational in the sense that there was no reason not to choice it But the choose a but the evidence to choose a over b Your actual evidence was pretty close to equipoise The data The scale rather was tipped by trust my trust in a over b had something to do with data namely my impressions of each But keep in mind that this decision Was not a trivial decision and that my rational reliance data here consisted In a very short conversation with the surgeon It's hard to see such data as rationally dictating one choice or the other Of course, as I say my decision wasn't unwarranted Well in my epistemic situation the basis for rational reliability had run out Um, okay, that's just to point out that pure trust involves an epistemic leap Everything as you can see I'm walking around find it all worked out There's something else to note about trust It brings them to play a specific set of moral emotions Trust involves a belief in someone's commitment to your well-being or a belief in their commitment to do their best for you That's why I can feel disappointed when it rains on my picnic But not the trade when I trusted the weather things turned out badly However, if I learned that my surgeon shows up in the or inebriated or otherwise not ready to do her best I would feel not merely disappointed but betrayed We might think of trust as establishing a vulnerability relationship between patient and clinician So turning to the pediatric context the trust relationship there takes a particular form In that context the patient does not have decisional capacity And that means that more than the patient that means more than the patient doesn't actually make the decision Means that the patient is not in a position to have the adult's kind of rational reliance on outcome likelihoods I've said that pure trust enters at the point when epistemic assessment runs out I suspect that in the pediatric context that point has reached much sooner than in the adult context There's much more room for indeed more much more of an inevitable need for trust on the part of the child So seeking a scent involves asking the child patient to trust the clinician Now what I've said about that is just descriptive So the question is is pure trust a valuable relationship? I've called it a vulnerability relationship. Does that make it something good better and different? It's worth noting that in the long philosophical tradition Starting with Socrates, there's been a great emphasis on being self-sufficient on not needing others On not being in vulnerability relationship. So it doesn't go You know, it's we shouldn't take for granted that being in such relationships is a good thing However, my inclination is to say that a trust relationship is in fact normally something valuable That it's good when human beings trust one another not merely and that this is not merely instrumentally good But intrinsically so I think such relationships are valuable for their own stake But for their own stake for their own sake But this is a value claim and it's going to hit bottom somewhere and I have no argument for it You guys are going to have to judge whether you want to go with the tradition and think that it's suspect Now trust obviously has its dangers If for instance things go badly in the surgery and the treatment with the child Child might feel betrayed and that might undermine their trust in the future And so as you all know better than I Any vulnerability relationship um could go wrong I really want to leave enough time for questions. So I'm going to bring this to a close I want to note just one last thing about trust The informed consent model seems to me to be hostile to trust It's really about rational reliability It's ideal seems to me for the patient to have ever more information And thus to be ever more in a position And thus to be ever more in a position to make a rational that is a probabilistic judgment about what to do Pure trust as I've talked about it. That's beyond rational Reliability is really what went into the into the paternalist model and to the extent that it's still around that It's still an inevitable feature of the clinical relationship. I think it's the last residue of them Um, I'm gonna finish by just summing up and going over things, but I've gone on long enough So let me call this to a close. I want merely to sort of note that as I said The structure of the talk has been first to put into question basic features of our current clinical model And then nonetheless to suggest that some of those features Are part of what actually makes it rational to make it good and proper to ask Pediatric patients for a cent So there is this tension I think that's something we've got to live with that is I think that clinical the current model has lots of potential problems and But until we find an alternative Which maybe we should be looking for We should be living with it and it does have aspects to it that makes sense So I'm saying of the practice of asking for a cent Okay, questions, please I know it's a philosophy talk. Come on guys. Have some questions Is Think something to your point your last point of that informed consent really pushes this idea now We were so there Whereas across seems to be Not rational And so so I agree with you It still seems as though these things should always sense Oh, all right And so so I guess in the same sense. I guess I'm curious It seems to me that it's good to ask a child To explain even though the parents are giving consent, it's good to tell the child what we're going to do and ask for their Ascent But if they refuse to give it to a one And that does seem like There's some asymmetry there. We're saying we want you to ascend and yet we're going to discount your And yes, but the question I take it is why you asked me if you're going to do and One reason would be Of course, you might have established it in greater West And so, you know, that's that's the way it's taking that Whether now what I'd ask is If there are kind of some kind of entitlement that the child can to exercise value that the child can imagine on the child That is capable of having some degree of reason that well It's not enough to have But you know And they have pictures of what we're doing. So we have to plan So my thought is part of the reason I mean, you have to put this And they say no Part of the reason why maybe they have an entitlement Is because they have to Have the results And So one way to describe what's going on Is to say that your patients lack decisional capacity by say the standard Criteria And that means that they lack an element of practical reason Namely ability to understand what's actually going on sufficiently well Another way would be to say That this shows a limit to the value of something like authenticity That that that they may be able to say, you know, in in one sense As would say the patient with anorexia nervosa to be able to say I know what's going on. I know exactly what's going on But you might think Well Valuable as acting in accordance with your own life plans might be it doesn't have overriding value In all situations and you were making the judgment that in fact this was one of those situations Yeah, well that I mean again part of What the philosopher can do with the model that that we have is to ask The model seems to say that certain kinds of values Always take priority In a certain context, right if the patient has capacity that's supposed to be the end of the story And maybe that's right but We take for granted that those values are genuinely always overriding and that everyone agrees that they're always overriding And that's simply not the case. That's certainly not been the case in the philosophical tradition And it's even not the case in the philosophical literature now Now as I say You have to have a plan b if you're going to say plan a Um needs to be rejected. I'm all that I'm pressing is you might say I'm pressing the thought that We've had the current model for about two generations That's not very long That you know the other model the paternalist model went way back We're just figuring out how this one works and frankly I think as far as substituted judgment goes That's even shorter because it's only been relatively recently that you know, we've kept patients alive in such a way that this has been That there's been a need to answer the question. What do we do now? so all that like If there's something I'm hoping to sort of stir It's the thought that these are not values That should be taken for granted is always The things that we need to abide by that there's room to think about whether A slightly or even significantly different model should be concocted please You permitted or come editor? You come editor, okay right, so A case like that, you know is is presumably part of what's Can make these decisions so difficult and I think of this one in case conference We often are talk trying to find out What would the patient have wanted? where it's just often not clear to me that that's the right question to ask And there and that you know the patient again The substituted judgment question Assumes a certain kind of coherence and it assumes a certain kind of value That may obtain in some cases, but I don't know that we should assume it obtains in all cases And it might well be that patients, you know If they survive would thank us For not doing what they would have wanted So that that that one I'm especially concerned that we take for granted How many of you would let the patient with anorexia starve herself today? She presents she understands everything about her disease And she just says yeah, I'd rather die than have to gain weight As I say I know in practical terms it's going to be really hard to treat her long term But that's not the question the question is how many of you think That she's morally entitled Just in virtue of the fact that she has this Belief that you think is totally wrong I should say in an it's interesting that um, I forget where the Which caring of the for a gap around with another article about decision capacity in which They in a single sense Talked about a patient And said that the reason To treat her is that she has mistaken beliefs and listed that No one would like her if she wasn't thin a mistaken factual claim and then something like that that There is nothing of value other than being thin. That's a mistaken Normative claim that the patient has and they were Putting them together as if they were the same Um, and that's to me. That's where the clinicians good sense. This patient needs to be treated You know is not finding the right kind of articulation because they don't want to admit that what's going on is a value judgment I am curious. Come on You guys would all let this patient down Why not? Yeah So Is there nothing she could say to show that she has insight but merely that her values are wrong Either of the values that are at the basis of what we do every wednesday And what you all do every day Um admits of no exceptions Now Well, and we're we're going to do the same thing With other contexts with the patient Who needs an amputation? And says I'd rather even though we know that you know from all the data. They'll come back to the baseline of happiness We say, okay, we'll let you die There's a real question What i'm trying to raise is why do we do that? It's it obvious That this is the case and for instance You know supposing on that we compel treatment for this young person with many years left of life Would it make it okay to do that if then two years later they thank us Like your patient The end of failure is when we're speaking skeptical that he did necessary guys And so to what extent we Yeah, I mean I unfortunately, I mean that's a difficult one because prisoners don't necessarily I mean I'm I'm sorry that We don't have an here about to talk about the military their context in which people Don't have the legal authority to say no necessarily We might think that's wrong, but it it it creates a different context for when judgments are made about what went to to treat against objection but I guess I guess in general So the we could take a step back here and this is why I say that Really what I'm trying to do is to raise the question as to whether we should be rethinking the model Not changing it immediately our clinical practice most One of the things that happens in so to speak the real world Is that there's a temptation to say That the morally right thing to do is the thing which follows from applying One rule in a consistent manner rather than another And so the justification for instance for allowing patients to refuse treatment Or for using a certain notion of substituted judgment might be that that's if we follow that rule There will be cases where intuitively we don't like the outcomes But if we follow a different rule, there will be worse more cases where we don't And so it may be that you that that's the best that we can do But even that requires us then still to think through do we have A different model that we could look at And the challenge also and this is sort of the challenge of this That's the the what I just described is rule consequentialism It's focusing on the consequences of using one rule rather than another The problem with rule consequentialism and the reason people often like to talk about rights with our current model Is that It's been well known that it doesn't make sense to abide by a rule When you have sufficient confidence that violating it in this case Will lead to the better consequences and won't have ripple effects on next ones so That's right. So we are what i'm trying to point out is that we are thought a little bit The appeal to rights Seems often to be mere table thumping when we say it overrides everything else The alternative thinking in terms of this rule versus that rule is vulnerable to the thought that We sometimes have high confidence that we should violate the rule so And anyway, so so I think there's work to be done It's the rule of the value of money Since the that Times that the score availed about, is entirely correct. And we wonder, what is not for that in a chaotic world, but in doctor attention, attention. The thing is entirely different. For example, who are the most rational first, I mean you or something like that. You can make your decision and everything you want. But if you come to my clinic office, you want to commit suicide, I don't let you. You have lost your freedom, because you are coming to my office asking me to help your illness. Then I sit in the bus, and I wanted to go to my home, and my bus stays up. Numbers are behind another bus, and if I wanted to get out of the bus, no. I have lost my freedom, but I get back my freedom when I am at the station. Because once you are a physician, you have the different responsibility, you can't just say, okay, you have the freedom. I have the responsibility behind this person being rational, and at the moment, because they are not always rational, rationality changing. So I cannot apply those things to every single doctor. So, what do you do? What do you do? What do you do? But I don't say, when the patient comes in, mom tells him, you need to say you need to. I say that one should come found fairly immediately. He wants to get better and he wants to look for the suicide. First of course, I have a duty to find a money to see really rational and it's not rational. But if he wants to go for the suicide, he won't come to be as a patriot. Another word that you have all this freedom that you have, but you cannot participate as a Christian. I cannot participate in your freedom. I don't, I mean, I don't disagree, but I'm not sure that's what's at issue here. I think what's going to be at issue is whether you're entitled and under if so under what circumstances and what would justify it to either. Well, let's just stick to compelling treatment of one form or another. What, what are the circumstances under which that would be appropriate. Yep, I agree. Thank you.