By Dr Raj Rattan, Dental Director at Dental Protection.
In broad terms, ethical practices in healthcare have been influenced by three types of classical ethical theory. These so-called normative theories are consequentialism, deontology and virtue ethics.
Consequentialism holds that an act is judged by its consequences. Utilitarianism is a simple type of consequential theory; it is about the “greatest good for the greatest number”.
Deontology is a non-consequentialism theory. Associated with the philosopher Immanuel Kant, the focus is on the act itself and not on the consequences. It is therefore intention-focused. It dictates that there are universal truths that apply and must be followed, and morality is embedded within these so-called categorical imperatives. People should be treated as an end in themselves and not as a means to an end.
Deontology is patient-centred, and utilitarianism is society-centred. In the wider context of healthcare interventions during the pandemic, utilitarianism aims to save the greatest number of lives, which means allocating resources to focus on those who have the greater chances of therapeutic success. In deontology, the focus would be on the patients who are at risk.
In Aristotelian-inspired virtue ethics, the underlying premise is that someone who possesses virtues and is regarded as a person of good character can be expected to act in the ‘right’ way and make the ‘right’ decisions irrespective of the situation.
Governments across the world have lent on all three approaches during this pandemic. Lockdown and social distancing measures are a utilitarian approach to prevent the control of the spread of the virus; the hope that individual citizens feel duty-bound to comply with advice (frequent handwashing, for example) is deontological thinking, while the notion that people of good character will do the right thinking relies on virtue ethics.
The classic ethical framework in everyday clinical practice is principlism, first proposed over 40 years ago by Tom Beauchamp and James Childress in their textbook, Principles of Biomedical Ethics. Beauchamp was a philosopher and consequentialist and Childress was a theologian and deontologist.
The principles of autonomy, nonmaleficence, beneficence and justice have underpinned ethical practices in healthcare for decades. They have been the subject of much debate for many years, with proponents advocating their continued application and critics citing conflict between the principles and the lack of hierarchy as a significant limitation. For this reason and others, the principles are open to interpretation and have to be shuffled and balanced according to the circumstances – none more severe than the recent pandemic. During this time, all these ethical theories have come together to create a decision-making toolkit.
Impact of the pandemic
The scarcity of resources such as ventilators and personal protective equipment (PPE) during the early stages of the pandemic has highlighted the inherent conflict in normative ethical theory. The best interests of the individual patient conflicts with utilitarian calculus when PPE supplies are restricted.
The requirement to close dental practices was, one assumes, based on utilitarianism. It had a public health focus to reduce the risk of the spread of the virus and to conserve supplies of PPE. Faced with risk and uncertainty, governments and policymakers invoke what is known as the precautionary principle; it is widely accepted as a necessary contingency from a risk management perspective. Private practices were the hardest hit when it came to closures while, in the UK, NHS practices continued to receive NHS payments in return for certain assurances.
Telephone triage was introduced and the AAA approach – advice, analgesics, antimicrobials where appropriate – was implemented. Patients who could not be managed in this way would be referred to urgent dental care centres, but not all UDCs were operational at the time. This gap – between what is said in external communications and what is actual service delivery – is often cited in gap analysis models. Here was a textbook example being played out during a time of crisis.
The best interest of the patient argument works well in normal times. In the absence of constraints and optimal service availability, dentists are able to carry out treatment to discharge their deontological duty. If there are some constraints in the system, then the best interest provision may be compromised but still within acceptable range. It is when constraints become more significant that a clinician may hesitate because they do not believe that the available options are in the best interests of the patient. This creates grey areas where dilemmas and uncertainties reside. Most of the calls we received came from these areas of uncertainty.
The uncertainty was not only related to clinical decisions but also to the consequences of those decisions in relation to the possible position of regulators if the dentist’s decision was scrutinised at a later date. Our advice to members was to clearly record and justify the clinical decision-making process as well as the treatment. If a dentist can show a clear, logical thought process with due regard to the prevailing guidance, then the chances of a successful defence increase substantially. It is why we highlighted the importance of making a note of the guidance in place at the time the decisions were made.
The AAA approach limited the options available to patients. The first challenge was that not all UDCs were operational. When they were, there were early reports suggesting that patients’ options for treatment were limited by situational restrictions such as the available of necessary PPE.
For example, consider a patient who presents with irreversible pulpitis. Any of the following scenarios were potential outcomes during the early stages of the pandemic:
- The option of root canal therapy is not available to this patient at the time of attendance because of a lack of PPE to carry out the aerosol generating procedure (AGP).
- The options of extraction vs root canal treatment is presented, intentionally or unintentionally, in a way that may lead the patient to choose to have an extraction. The influencing of framing is well documented in the literature. The scenario described here is not unique to a crisis situation; it is observed in normal times where constraints may be financial rather than situational.
- There is an assumption that patients will make rational choices if they are given all the relevant information, but research has shown that we all rely on emotions and values first before considering more rational aspects of a decision and patients are no exception. They are influenced by their circumstances and affected by timing. For example, research evidence suggests that people would rather have a benefit in the near-term than hold out for a greater reward later. This has been described as temporal discounting – because the decision maker discounts the longer-term benefit. A patient who has been in pain for many days where analgesics are ineffective may opt for an extraction because of the immediate benefit of pain relief, but may regret it later – when the strategic position of the tooth may be emphasised by the patient’s own dentist to whom the patient will eventually return.
Each of these scenarios may have the same outcome but they present dentolegal challenges in different ways.
Framing effects are notoriously difficult to study in practice. Clinical notes reflect the content of verbal discussions, not necessarily the style of the conversation – the framing of the content, emotive language, or what are described as “nudges”.
Consent and the principle of nudge
The principle of nudge, a concept of behavioural ethics, was introduced by the economist Richard Thaler and legal scholar Cass Sunstein in their book Nudge in 2008. They defined a nudge as “any aspect of the choice architecture that influences individuals’ decision making in a predictable way without forbidding any options or changing economic incentives”. The intended purpose of the now widely adopted principle of nudging is to benefit people without restricting choice. From a dentolegal standpoint, proponents of the approach suggest it is consistent with the principles of consent, while critics argue that it is at odds with the principle of autonomy, and there are concerns that the principle maybe misapplied to bring about more pervasive outcomes or restricting choice. For this reason, its ethical legitimacy remains controversial.
It is important to remember that the requirement to discuss the diagnosis, treatment options and associated risks and benefits has not diminished during this pandemic. In the language of nudge, the person who has responsibility for organising the context is known as the choice architect – a responsibility that has been assumed by policymakers and frontline clinicians during this crisis. The scope of choice architecture has broadened since the term was first introduced. In its original form, a feature of choice architecture was that no choices were excluded, but the use of the term has been extended (and endorsed by Thaler) to include situations where some choices are excluded.
This exclusion may be determined by situational factors. If a patient could not have an AGP procedure because of the lack of availability of PPE, then the exclusion of the option to have root canal therapy is not an abuse of nudge – it is a consequential outcome. To exclude root canal therapy because it is ‘easier’ to undertake an extraction or for some other equally spurious decision, would be seen as an abuse of nudge and would not be defended.
Many professional codes of conduct in healthcare are underpinned by Aristotelian virtues ethics and deontology where the focus of an ethical investigation is the behaviour of the individual, often with little regards to context. We know from behavioural science research that context complicates decision-making and yet ethical codes of practices have not embraced the neuroscience that tells us that our decisions and behaviours are impacted significantly by situational factors and in some cases the result of hard-wired brain bias.
In contract, the situationist lens offers a more realistic perspective on ethics in real world scenarios, not some of the more abstract constructs that find their way into ethical debates.
The recognition of behavioural and situation ethics should be the next step in the evolution of ethical codes of conduct.