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J Acad Ethics (2007) 5:207–216 DOI 10.1007/s10805-007-9029-5
Being, Doing, and Knowing: Developing Ethical Competence in Health Care
S. Eriksson & G. Helgesson & A. T. Höglund
Received: 4 October 2006 / Accepted: 3 January 2007 / Published online: 3 February 2007 # Springer Science + Business Media B.V. 2007
Abstract There is a growing interest in ethical competence-building within nursing and health care practising. This tendency is accompanied by a remarkable growth of ethical guidelines. Ethical demands have also been laid down in laws. Present-day practitioners and researchers in health care are thereby left in a virtual cross-fire of various legislations, codes, and recommendations, all intended to guide behaviour. The aim of this paper was to investigate the role of ethical guidelines in the process of ethical competence-building within health care practice and medical research. A conceptual and critical philosophical analysis of some paragraphs of the Helsinki Declaration and of relevant literature was performed. Three major problems related to ethical guidelines were identified, namely, the interpretation problem (there is always a gap between the rule and the practice, which implies that ethical competence is needed for those who are to implement the guidelines); the multiplicity problem (the great number of codes, declarations, and laws might pull in different directions, which may confuse the health care providers who are to follow them); and the legalisation problem (ethics concerns may take on a legal form, where ethical reflection is replaced by a procedure of legal interpretations). Virtue ethics might be an alternative to a rule based approach. This position, however, can turn ethics into a tacit knowledge, leading to poorly reflected and inconsistent ethical decisions. Ethical competence must consist of both being (virtues) and doing (rules and principles), but also of knowing (critical reflection), and therefore a communicative based model is suggested. KEY WORDS codes . communication . ethical competence . ethics regulation . professionalism . virtues
S. Eriksson : G. Helgesson : A. T. Höglund (*) Department of Public Health and Caring Sciences, Centre for Bioethics at Karolinska Institutet & Uppsala University, Uppsala Science Park, 75185 Uppsala, Sweden e-mail: [email protected] S. Eriksson e-mail: [email protected] G. Helgesson e-mail: [email protected]
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Introduction In the last few years, there has been a growing interest in ethical competence building within nursing and health care practising. This tendency has been accompanied by a remarkable growth of ethical guidelines. Ethical demands have also been laid down in laws. Such laws and guidelines regulate both health care providing and medical researching and they build upon international ethical standards, such as the Helsinki Declaration. As the number of ethical guidelines, professional ethical codes, and legal regulations within the field of medical practice and research has increased tremendously, present-day practitioners and researchers are left in a virtual cross-fire of various legislations, codes, and recommendations. The aim of this paper is to investigate the role of such ethical guidelines and regulations in the ethical competence-building process within health care practice. The basis for the argument is a conceptual and critical philosophical analysis of some paragraphs of the Helsinki Declaration and of relevant literature. One central question in the present study concerns what role ethical regulations can play for the professions’ ability to formulate and implement ethical standpoints in the health care sector. Do such regulations actually strengthen the individual professional’s ability to assume moral responsibility and build ethical competence, or are they perhaps even counterproductive? In the following, three major problems concerning ethical guidelines are identified. Further, it is argued that we need to develop new ways to raise ethical competence within the field of medicine and that professional codes need to accommodate to that process.
Background: Ethical Competence Since ancient times, ethical competence has been regarded as a central part of health care providing. In our everyday life it is a well-established assumption that competence is not the same thing as theoretical knowledge. This is particularly true for the development of ethical competence in health care. Zhang, Luk, Arthur, and Wong (2001) have defined competence as a person’s capacity to meet a job’s requirements by producing quality outcomes. Parsons (2000) has argued that competence implies knowledge and the skills required in a profession, but also that it presumes the ability to apply that knowledge and those skills. Jormsri, Kunaviktikul, Ketefian, and Chaowalit (2005) have defined ethical competence in nursing as consisting of three dimensions: moral perception, judgment, and behaviour. Further, they have identified eight attributes as indicators of ethical competence, such as, compassion, responsibility, honesty and respect for human values, dignity and rights. Ethical competence is often regarded as part of the broader, general competence a professional possesses (Davis, 2002). Professionalism has by Pellegrino (2002) been defined as consisting of the following components: possession of a body of special knowledge, practicing that knowledge within an ethical framework, fulfillment of certain societal needs, and a social mandate. One important question in relation to the building of ethical competence in health care is what role ethical codes, guidelines and laws might play in this process. Research on the relevance of ethical codes in the development of ethical competence has been done particularly within nursing. Scanlon (1997), for instance, has argued that the creation of policy statements and guidelines is extremely important to the development of ethical competence for nurses. An opposite position is taken by Pattison (2001) and Thompson (2002), who both have argued that professional codes suffer from terminological inexactitudes and confusions as well as arbitrariness in values and principles. Empirical
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studies have also shown (Esterhuizen, 1996; Höglund, 2005) that nurses make ethically sound choices based on their own decision-making ability, while having little or no active knowledge of existing professional codes or ethical guidelines. Ethical Guidelines – Some Identified Problems Since the Nuremberg Code was laid down in 1947 there has been a veritable explosion of ethical and legal regulations for the sciences as well as for many professions (Evers, 2004). There are a considerable number of different types of ethical and legal regulations, whose authoritative status vary. International organizations, such as the World Medical Association (WMA), the Council for International Organizations of Medical Sciences (CIOMS), the Council of Europe, and the United Nations produce their own ethical statements, and basically every profession within the health care sector has their own professional codes (Baker, 1993; Brody, 1999). In Sweden, laws on both biobanks and ethical review have been enacted. Professional ethics and research ethics are nowadays strongly focused upon such regulations (Fletcher & Wertz, 1999; International Bioethics Committee, 2002). The latest revision of the Declaration of Helsinki has, for instance, been subject to much analysis and discussion (Brennan, 1999; Forster, 2001; Levine, 1999). Most of these accounts take the merits of declarations, guidelines, and rules of various kinds for granted. Even those supporting alternative approaches to the implementation of ethics often find policy development to be of utmost importance. However; this unquestioning attitude is problematic since it conceals some inherent limitations of guidelines. In the following, three problems will be identified. They concern what can actually be attained by rules (the interpretation problem); the multiplicity of regulations and values (the multiplicity problem); and the present-day tendency to treat ethics as a quasilegal endeavour (the legalisation problem). The Interpretation Problem Commons and Baldwin (1997) have argued that within the nursing profession, patient care can be performed ethically or unethically, depending on the professional standards nurses have set up for themselves. They also hold that such standards are set when nurses become aware of the ethical codes available. As nurses are often not familiar with the codes, they do not all conform to them. Nurses’ ability to deal with ethical dilemmas is effectively secured through education on guidelines, in order to create a “barrier” between personal and professional values. Against Commons’ and Baldwin’s view we argue that there will always be a gap between the rules and the practice they are to regulate. An agent must always interpret the rules in order to assess their applicability in a particular situation. Different agents often interpret the same set of rules in different ways (Bluhm & Summers, 1992). Further, rules found in ethical guidelines are very general and rarely state how to best handle specific situations (Plummer, 1983). Such problems of interpretation have, for instance, arisen in relation to paragraphs 29 and 30 in the latest version of the Helsinki Declaration. In order to clarify the intentions with these paragraphs, footnotes that give a general explanation of the purpose and specify the circumstances in which the rules apply have been added. However, this does not avoid the interpretation problem since the footnotes are not explicit enough to avoid the need for further interpretation (it is perhaps because of this that reports on paragraph 30 and its revision have been issued by the WMA). On the contrary, now both the footnotes and the
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original rules need to be considered and interpreted. Here, an additional problem arises, namely, how to weigh the footnotes compared to the claims in the original paragraphs. Some understanding of the ethical assumptions underlying the rules in the guidelines is usually needed in order to make all applications understandable. Otherwise, the rules may seem inconsistent or inconclusive (Laurie, 2002). To illustrate, consider the latest version of the Helsinki Declaration, paragraphs 4, 6 and 7: 4. Medical progress is based on research which ultimately must rest in part on experimentation involving human subjects. 6. The primary purpose of medical research involving human subjects is to improve prophylactic, diagnostic and therapeutic procedures and the understanding of the aetiology and pathogenesis of disease. Even the best proven prophylactic, diagnostic and therapeutic methods must continuously be challenged through research for their effectiveness, efficiency, accessibility and quality. 7. In current medical practice and in medical research, most prophylactic, diagnostic and therapeutic procedures involve risks and burdens. Paragraphs 4 and 6 do not explicitly state that research on human subjects should be carried out, only that research is needed if there is to be any progress in health care. If research has this prospect, then it should be carried out, or so it seems, since paragraph 2 states that “it is the duty of the physician to promote and safeguard the health of the people. The physician’s knowledge and conscience are dedicated to the fulfilment of this duty.” However, as noted in paragraph 7, participation in research involves some risk. One conclusion, thus, could be that research on human subjects should be carried out, even though it involves some risk for research participants. On the other hand, paragraph 5 states: “In medical research on human subjects, considerations related to the well-being of the human subject should take precedence over the interests of science and society.” Does this mean that no other research should be allowed than studies where there is an uncontested pay-off for participants larger, or at least no less, than the expected disadvantages of participating? Most research participation does not have such a pay-off. Should all this research be stopped? Or, is it acceptable because (as indicated in paragraph 16, which opens up for “healthy volunteers” as research subjects), on the whole, people benefit from a system where such research is carried out, even if there is no immediate payoff for those participating? However, this may hold true also for research where participation is associated with considerable risk. Is such research compatible with the message of paragraph 5? It is not easy to tell. Research involving more than minimal risk to participating human subjects would be found acceptable from the perspective of utilitarian ethical theory, if the overall value of research outweighs the overall disadvantages. In some deontological theories, however, such research would not be accepted. The Helsinki Declaration makes no statements regarding underlying ethical theories. Without a theoretical foundation for interpretations, no useful answer is given concerning what risks are acceptable, under what conditions, even though this arguably is one of the central issues to be addressed. This argument points towards the need for ethical competence among those who are to implement these guidelines in health care practice and medical research. The Multiplicity Problem While the first problem concerned the fact that rules cannot be applied to practical situations without difficulty, the second problem has to do with the great number of ethical
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codes, guidelines, and values that professionals within health care and medical research encounter. Apart from personal moral ideals, various oaths and proclamations and the ethics propelled by the profession, there is a multiplicity of guidelines of both ethical and legal nature pulling in different directions. It is not always clear what status ethical guidelines have in relation to each other. Sometimes this is an inherent property of the guideline, i.e. it does not in itself give clear guidance as to what status it has. For example, the Declaration of Helsinki on the one hand is said to be a statement of ethical principles that reflects a general consensus on how physicians should act, but on the other hand it claims to consist of protections so important that national law has to stand back in case of conflict. Sometimes it is the relation to other guidelines that is unclear, or they may contain statements to the effect that they compete for authority. Furthermore, it may be unclear which version of a certain document that is in force. For example, the American Food and Drug Administration uses versions of the Helsinki Declaration from 1983 and 1999, while the new EU Directive on good clinical practice refers to the 1996 version. WMA refers to the latest version as the authoritative document. Different ethical guidelines often express different ideals and values and can indeed conflict in certain situations (Hoff, 2004; Kassirer, 2001; Salter & Jones, 2002; Tröhler, 2002). When they do, the difficulty arises which one to follow. When they are in agreement, one or more of them may be superfluous. Guidelines might also conflict with responsibilities researchers and health care personnel feel they have vis-à-vis research and patients. In the debate on guidelines, the tension that may arise between the concern for patients and regulations meant to protect the interests of the very same patients is often highlighted. This happened in Sweden when a new Biobank Act was introduced in January, 2003. The discussions beforehand concerned whether non-competent persons (because of health condition, psychological state, or mental disease) should have a near relative or proxy giving informed written consent in their stead. Some held, that in order to maintain personal integrity, no one should have to leave samples for a purpose that they did not understand – the paradigm case held in mind was the inclusion of patients in studies of which they were not aware. This view won at the time. The result was that if the patient or a custodian had not given informed consent, no sample could be included in a biobank (Eriksson, 2003). The problem with this solution is that it is sometimes of great importance that samples are taken from non-competent persons in order to provide good quality health care. To hold on to the cornerstone of medical ethics – that the health of the patient is the first consideration – otherwise becomes impossible. There is yet another aspect of the multiplicity problem, namely that organizations try to establish rules and guidelines for various purposes, such as strengthening the identity of a profession, protecting a concerned part, or producing materials for education (Petersson, 1994). The Helsinki Declaration is a guideline construed from the perspective of medical doctors, based on the tradition from Hippocrates. It is not obvious how other professions are to understand the rules contained in the declaration. To what extent do they reflect a particular perspective from the viewpoint of physicians? Nurses devise their own guidelines, partly because of a desire to distance themselves from traditional medical ethics, and in doing so try to state what is special to the professional role of nurses, compared to that of doctors (Meulenbergs, Verpeet, Schotsmans, & Gastmans, 2004). Guidelines rarely specify how conflicts with other normative sources are to be resolved. In order to successfully handle conflicts between different ethical guidelines, the principles or rules need to be ordered in some hierarchy or applied according to some more
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fundamental ethical principle – one that is not found in the guidelines. Thereby, also this situation shows the need for ethical competence among those who are to handle such guidelines. The Legalisation Problem Finally, we want to point to a third problem regarding ethical guidelines, namely that ethical concerns take on a legal form. In recent years, a common response to ethical challenges in research and health care has been to develop new legislation. The view that professional self-regulation is insufficient seems to have become increasingly common, while the role of legislation is rarely discussed. A number of negative consequences can be tied to this development. First, researchers and laymen are often not competent enough to correctly interpret the complicated regulations. Following the new Swedish Act on ethical review (2003:460), the review boards are chaired by judges. There is a risk that the creation of such a legal framework to ethical review will lead to a situation where ethical reflection is replaced by a procedure of legal interpretations; the question of what is ethically sanctioned turns into a question of what is legally permissible and intended. Further, this legalistic development might lead to a different understanding of existing guidelines. Their character of rules comes to the forefront, and the formulated rules tend to be understood as the final word on what to do. This would only be an extrapolation of a development already seen in ethical reasoning in this field. Traditionally, ethical problems in health care have been discussed in relation to ethical principles (Beauchamp & Childress, 2001) which originally were intended as heuristic principles, but which in practice have come to be understood as definite principles for decision-making. Thus, the basic principles are treated as given, although people often disagree about them, both in terms of how to interpret them and how to rank them. Last, this development may take us to a point where we expect the rules to ‘do the job’ for us. As already emphasized, there is a distance between the rules and their use. All principles, rules, and guidelines have to be applied in concrete situations by individual professionals, and often the rules cannot unambiguously specify how to act in specific cases. By singlemindedly stressing the regulatory framework, there is a risk that we forget that it is the researcher or the doctor/nurse who has to take the final moral responsibility. Therefore, the ethical competence must lie with the professional – it cannot be encapsulated in rules. A recent case that serves to illustrate some of these problems is the much-discussed case of a Swedish researcher prosecuted for refusing to hand out sensitive data. A court order in 2003 ordered his research team to hand over sensitive data on patients and their relatives to two critics of their research. The basis for the court’s decision was the section of the Swedish constitution relating to public access to public records. As a public body, the university must make documents available to citizens upon request unless they are protected by the Secrecy Act. The researchers, however, felt that the original court ruling that granted access was flawed since it did not take ethical concerns seriously enough. The researchers had previously promised full confidentiality to all study participants. They proceeded by contacting them to ask if they would be prepared to have the data released – all but one family reportedly refused. The Court of Appeal ruled that there is no legal possibility to promise a greater protection of sensitive data than that given by law, thus the promises made by the researchers cannot be given precedence over the right to access public documents. Here careful consideration of different ethical aspects of the case is replaced by a court ruling that gives no room for ethical considerations once appropriate
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sections of the law can be applied. Thus, a strongly felt professional ethical obligation not to breach confidentiality (Kipnis, 2006) is impossible to uphold without facing criminal charges. Perhaps not surprisingly, Swedish physicians have called for the redress of the research group on the grounds that the Helsinki Declaration has priority over national legislation (Johnson & Fernell, 2006).
The Virtue Ethics Alternative Based on the described problems we argue, that when it comes to ethical competence building in health care, the importance of ethical guidelines is overestimated. As an alternative, virtue ethics has been much favoured among nursing ethicists in the last decade (Cameron, 1996; Gardiner, 2003). Not least has it been argued that virtue ethics is relevant when it comes to developing ethical competence within health care practice (Begley, 2005). ‘Virtue’ comes from the Greek word arete which means ‘excellence’ in relation to a skill or a trait of character. The term is very much linked to function, which is also applicable on the ethical skill a doctor or nurse is assumed to develop: “A good nurse or a good doctor perform their functions well and this requires excellence in skills, in theoretical knowledge and in moral virtue (excellence of character)” (Begley, 2005, p. 623). In virtue ethics there is no cardinal principle, as in utilitarianism (utility) or deontology (duty or right), from which we can derive action guidance. The primary concern is with what sort of persons we should be and a basic assumption is that a ‘good’ person performs morally ‘good’ and rightful actions. According to the results of an empirical investigation concerning the ethical competence of Swedish health care providers (Höglund, 2005), the staff adheres to the virtue ethics tradition, rather than to a rule based ethics. Some of the informants in the study held that they possessed some kind of ‘tacit knowledge’ (Herbig, Bussing, & Ewert, 2001) in questions of ethics, a knowledge that was to a great extent described as the possession of virtues, such as being brave or empathetic. Ethics could not be ‘learned,’ the subjects held, rather you develop your ethical competence by following the good example. Knowledge of codes and regulations was therefore not regarded as necessary for the development of ethical competence. Can a virtue ethics approach replace acquaintance with ethical principles, codes, guidelines and laws? A strict virtue ethics position would imply that it can. We argue, however, that this position can turn ethics to solely a tacit knowledge. Thereby the health care provider might ignore ethical judgements and end up with poorly reflected and inconsistent ethical decisions. There is also another problem tied to the implementation of a virtue ethics approach. In order to make virtue ethics more practical for health care providers suggestions have been made of appropriate virtues for nurses (Silfverberg, 1999), such as wisdom, patience, empathy, concern, flexibility, humbleness and attentiveness. Similarly, Oakley and Cocking (2001) have suggested suitable virtues for medical doctors including, for example, benevolence, truthfulness, courage, justice and to inspire confidence. Considering the long history of nursing as a task devoted particularly to women, such virtue lists may, however, be problematic. Several of the suggested character traits for nurses, such as patience, empathy, concern, flexibility, and humbleness, are traits that are traditionally tied to the cultural construction of femininity (Tong, 1998). A virtue ethics approach in this sense might consolidate traditional understandings of gender and ethics. Gilligan (1982) was the first to show that the moral development of
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women and men are tied to cultural gender norms, which made it reasonably for women to develop an ethic of care, whereas men in Gilligan’s investigation, developed and ethic of justice. Both these types of moral attitudes are closely related to the gender construction in the context Gilligan studied (i.e. a Western, white, middle class context). A virtue ethics approach in health care practice needs to take these aspects into account.
A Communicative-based Model So far we have argued that a too narrow focus upon ethical regulations might be counterproductive when it comes to the development of ethical competence in health care. Further, we have suggested that a virtue ethics approach is promising, yet not enough for our purposes. Virtue ethics is commonly referred to as an ethic of being, since virtue ethics concerns good character traits. Deontology and utilitarianism, on the contrary, are commonly referred to as ethics of doing, since they are primarily concerned with how to act. In relation to ethical guidelines, the doing aspect has very much come to be understood as plainly following the instructions given by the stated rules. We argue, that ethical competence must include aspects of both doing and being, but also aspects of knowing. This is why we suggest a third road, combining both a critical, yet not dismissive, attitude towards ethical guidelines (based on the three fields of problems we have identified) as well as a similar attitude towards virtue ethics (as described above). Our suggestion of a model for the development of ethical competence in health care is instead a communicative-based model. Some models of communicative (or discourse) ethics in health care have previously been suggested (Bosek, 2002; Gatter, 1997; Rudnick, 2002). Our suggestion differs from these examples through its emphasize on using the dialogue model as a way to bridge the gap between a virtue-based versus a regulation-based approach to ethical competence-building in health care. What communicative ethics adds to the understanding of virtue ethics in health care practice and to the predominant attitude towards ethical guidelines, is the presumption that ethical competence presupposes conscious and reflected decision-making. Therefore, a continuous education and reflection on ethics is necessary in the training for doctors and nurses, as well as in their daily professional lives. In order to maintain a high level of ethical competence, the work organization must provide support structures for the staff in the form of, for example, ethical rounds, i.e. interdisciplinary discussions in which ethical aspects of clinical cases are put forward (Hansson, 2002; Kälvemark, Höglund, Hansson, Westerholm, & Arnetz, 2004). In these rounds, a basic assumption is that dialogue as such is not enough – the form, the procedure, of it is also important. Therefore, a moderator assures that the discussion abides to the norms of a democratic dialogue (Young, 2000), meaning that everyone present has the right to participate, to influence the agenda, to express their views and to be listened to respectfully. In such dialogue the meaning and impact of different guidelines can be discussed, as well as the appropriate professional guidelines. The dialogue can also foster an interpersonal, perceptive apprehension of the various virtues at play, so that those virtues can be expressed and shared. Professionals can use guidelines as an ethical reminder or as a starting-point for reflection, but they also need an ability to apply them to concrete ethical dilemmas in their work. Following the good example might be one way, but this strategy also risks remaining a tacit knowledge, resulting in poorly reflected and inconsistent ethical decisions. It can also lead to a persistent moral uncertainty among health care providers concerning on what
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grounds ethical decisions are made. This is why we argue that ethical competence should include not only an awareness of guidelines and regulations, but also an apprehension of suitable virtues for one’s work. In an ongoing dialogue, both these aspects can contribute to the development of ethical competence in health care and medical research. Conclusion Three problems concerning ethical regulations have been identified: the interpretation problem, the multiplicity problem, and the legalisation problem. The existence of these problems shows that ethical guidelines cannot, by themselves, provide a solid ground for building ethical competence. Nor does a virtue ethics approach provide a satisfactory solution, since it often takes the form of a tacit knowledge and opens up for poorly reflected and inconsistent decision-making as well as a cementation of gender-biases. We have argued that decision-making based on familiarity with ethical guidelines and principles, modelled on good examples, and exposed to critical reflection can be enhanced by using the communicative-based model we have suggested. Through such work, all three important aspects of ethical competence-building in health care will be included, namely: being, doing, and knowing. References
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Further Reading
The Declaration of Helsinki. Ethical Principles for Medical Research Involving Human Subjects. WMA General Assembly, 2004. Swedish Act on Ethical Review (2003:460). Swedish Biobanks Act (2002:297). Swedish Secrecy Act (1980:100).
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Being, Doing, and Knowing: Developing Ethical Competence in Health Care
S. Eriksson & G. Helgesson & A. T. Höglund
Received: 4 October 2006 / Accepted: 3 January 2007 / Published online: 3 February 2007 # Springer Science + Business Media B.V. 2007
Abstract There is a growing interest in ethical competence-building within nursing and health care practising. This tendency is accompanied by a remarkable growth of ethical guidelines. Ethical demands have also been laid down in laws. Present-day practitioners and researchers in health care are thereby left in a virtual cross-fire of various legislations, codes, and recommendations, all intended to guide behaviour. The aim of this paper was to investigate the role of ethical guidelines in the process of ethical competence-building within health care practice and medical research. A conceptual and critical philosophical analysis of some paragraphs of the Helsinki Declaration and of relevant literature was performed. Three major problems related to ethical guidelines were identified, namely, the interpretation problem (there is always a gap between the rule and the practice, which implies that ethical competence is needed for those who are to implement the guidelines); the multiplicity problem (the great number of codes, declarations, and laws might pull in different directions, which may confuse the health care providers who are to follow them); and the legalisation problem (ethics concerns may take on a legal form, where ethical reflection is replaced by a procedure of legal interpretations). Virtue ethics might be an alternative to a rule based approach. This position, however, can turn ethics into a tacit knowledge, leading to poorly reflected and inconsistent ethical decisions. Ethical competence must consist of both being (virtues) and doing (rules and principles), but also of knowing (critical reflection), and therefore a communicative based model is suggested. KEY WORDS codes . communication . ethical competence . ethics regulation . professionalism . virtues
S. Eriksson : G. Helgesson : A. T. Höglund (*) Department of Public Health and Caring Sciences, Centre for Bioethics at Karolinska Institutet & Uppsala University, Uppsala Science Park, 75185 Uppsala, Sweden e-mail: [email protected] S. Eriksson e-mail: [email protected] G. Helgesson e-mail: [email protected]
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Introduction In the last few years, there has been a growing interest in ethical competence building within nursing and health care practising. This tendency has been accompanied by a remarkable growth of ethical guidelines. Ethical demands have also been laid down in laws. Such laws and guidelines regulate both health care providing and medical researching and they build upon international ethical standards, such as the Helsinki Declaration. As the number of ethical guidelines, professional ethical codes, and legal regulations within the field of medical practice and research has increased tremendously, present-day practitioners and researchers are left in a virtual cross-fire of various legislations, codes, and recommendations. The aim of this paper is to investigate the role of such ethical guidelines and regulations in the ethical competence-building process within health care practice. The basis for the argument is a conceptual and critical philosophical analysis of some paragraphs of the Helsinki Declaration and of relevant literature. One central question in the present study concerns what role ethical regulations can play for the professions’ ability to formulate and implement ethical standpoints in the health care sector. Do such regulations actually strengthen the individual professional’s ability to assume moral responsibility and build ethical competence, or are they perhaps even counterproductive? In the following, three major problems concerning ethical guidelines are identified. Further, it is argued that we need to develop new ways to raise ethical competence within the field of medicine and that professional codes need to accommodate to that process.
Background: Ethical Competence Since ancient times, ethical competence has been regarded as a central part of health care providing. In our everyday life it is a well-established assumption that competence is not the same thing as theoretical knowledge. This is particularly true for the development of ethical competence in health care. Zhang, Luk, Arthur, and Wong (2001) have defined competence as a person’s capacity to meet a job’s requirements by producing quality outcomes. Parsons (2000) has argued that competence implies knowledge and the skills required in a profession, but also that it presumes the ability to apply that knowledge and those skills. Jormsri, Kunaviktikul, Ketefian, and Chaowalit (2005) have defined ethical competence in nursing as consisting of three dimensions: moral perception, judgment, and behaviour. Further, they have identified eight attributes as indicators of ethical competence, such as, compassion, responsibility, honesty and respect for human values, dignity and rights. Ethical competence is often regarded as part of the broader, general competence a professional possesses (Davis, 2002). Professionalism has by Pellegrino (2002) been defined as consisting of the following components: possession of a body of special knowledge, practicing that knowledge within an ethical framework, fulfillment of certain societal needs, and a social mandate. One important question in relation to the building of ethical competence in health care is what role ethical codes, guidelines and laws might play in this process. Research on the relevance of ethical codes in the development of ethical competence has been done particularly within nursing. Scanlon (1997), for instance, has argued that the creation of policy statements and guidelines is extremely important to the development of ethical competence for nurses. An opposite position is taken by Pattison (2001) and Thompson (2002), who both have argued that professional codes suffer from terminological inexactitudes and confusions as well as arbitrariness in values and principles. Empirical
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studies have also shown (Esterhuizen, 1996; Höglund, 2005) that nurses make ethically sound choices based on their own decision-making ability, while having little or no active knowledge of existing professional codes or ethical guidelines. Ethical Guidelines – Some Identified Problems Since the Nuremberg Code was laid down in 1947 there has been a veritable explosion of ethical and legal regulations for the sciences as well as for many professions (Evers, 2004). There are a considerable number of different types of ethical and legal regulations, whose authoritative status vary. International organizations, such as the World Medical Association (WMA), the Council for International Organizations of Medical Sciences (CIOMS), the Council of Europe, and the United Nations produce their own ethical statements, and basically every profession within the health care sector has their own professional codes (Baker, 1993; Brody, 1999). In Sweden, laws on both biobanks and ethical review have been enacted. Professional ethics and research ethics are nowadays strongly focused upon such regulations (Fletcher & Wertz, 1999; International Bioethics Committee, 2002). The latest revision of the Declaration of Helsinki has, for instance, been subject to much analysis and discussion (Brennan, 1999; Forster, 2001; Levine, 1999). Most of these accounts take the merits of declarations, guidelines, and rules of various kinds for granted. Even those supporting alternative approaches to the implementation of ethics often find policy development to be of utmost importance. However; this unquestioning attitude is problematic since it conceals some inherent limitations of guidelines. In the following, three problems will be identified. They concern what can actually be attained by rules (the interpretation problem); the multiplicity of regulations and values (the multiplicity problem); and the present-day tendency to treat ethics as a quasilegal endeavour (the legalisation problem). The Interpretation Problem Commons and Baldwin (1997) have argued that within the nursing profession, patient care can be performed ethically or unethically, depending on the professional standards nurses have set up for themselves. They also hold that such standards are set when nurses become aware of the ethical codes available. As nurses are often not familiar with the codes, they do not all conform to them. Nurses’ ability to deal with ethical dilemmas is effectively secured through education on guidelines, in order to create a “barrier” between personal and professional values. Against Commons’ and Baldwin’s view we argue that there will always be a gap between the rules and the practice they are to regulate. An agent must always interpret the rules in order to assess their applicability in a particular situation. Different agents often interpret the same set of rules in different ways (Bluhm & Summers, 1992). Further, rules found in ethical guidelines are very general and rarely state how to best handle specific situations (Plummer, 1983). Such problems of interpretation have, for instance, arisen in relation to paragraphs 29 and 30 in the latest version of the Helsinki Declaration. In order to clarify the intentions with these paragraphs, footnotes that give a general explanation of the purpose and specify the circumstances in which the rules apply have been added. However, this does not avoid the interpretation problem since the footnotes are not explicit enough to avoid the need for further interpretation (it is perhaps because of this that reports on paragraph 30 and its revision have been issued by the WMA). On the contrary, now both the footnotes and the
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original rules need to be considered and interpreted. Here, an additional problem arises, namely, how to weigh the footnotes compared to the claims in the original paragraphs. Some understanding of the ethical assumptions underlying the rules in the guidelines is usually needed in order to make all applications understandable. Otherwise, the rules may seem inconsistent or inconclusive (Laurie, 2002). To illustrate, consider the latest version of the Helsinki Declaration, paragraphs 4, 6 and 7: 4. Medical progress is based on research which ultimately must rest in part on experimentation involving human subjects. 6. The primary purpose of medical research involving human subjects is to improve prophylactic, diagnostic and therapeutic procedures and the understanding of the aetiology and pathogenesis of disease. Even the best proven prophylactic, diagnostic and therapeutic methods must continuously be challenged through research for their effectiveness, efficiency, accessibility and quality. 7. In current medical practice and in medical research, most prophylactic, diagnostic and therapeutic procedures involve risks and burdens. Paragraphs 4 and 6 do not explicitly state that research on human subjects should be carried out, only that research is needed if there is to be any progress in health care. If research has this prospect, then it should be carried out, or so it seems, since paragraph 2 states that “it is the duty of the physician to promote and safeguard the health of the people. The physician’s knowledge and conscience are dedicated to the fulfilment of this duty.” However, as noted in paragraph 7, participation in research involves some risk. One conclusion, thus, could be that research on human subjects should be carried out, even though it involves some risk for research participants. On the other hand, paragraph 5 states: “In medical research on human subjects, considerations related to the well-being of the human subject should take precedence over the interests of science and society.” Does this mean that no other research should be allowed than studies where there is an uncontested pay-off for participants larger, or at least no less, than the expected disadvantages of participating? Most research participation does not have such a pay-off. Should all this research be stopped? Or, is it acceptable because (as indicated in paragraph 16, which opens up for “healthy volunteers” as research subjects), on the whole, people benefit from a system where such research is carried out, even if there is no immediate payoff for those participating? However, this may hold true also for research where participation is associated with considerable risk. Is such research compatible with the message of paragraph 5? It is not easy to tell. Research involving more than minimal risk to participating human subjects would be found acceptable from the perspective of utilitarian ethical theory, if the overall value of research outweighs the overall disadvantages. In some deontological theories, however, such research would not be accepted. The Helsinki Declaration makes no statements regarding underlying ethical theories. Without a theoretical foundation for interpretations, no useful answer is given concerning what risks are acceptable, under what conditions, even though this arguably is one of the central issues to be addressed. This argument points towards the need for ethical competence among those who are to implement these guidelines in health care practice and medical research. The Multiplicity Problem While the first problem concerned the fact that rules cannot be applied to practical situations without difficulty, the second problem has to do with the great number of ethical
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codes, guidelines, and values that professionals within health care and medical research encounter. Apart from personal moral ideals, various oaths and proclamations and the ethics propelled by the profession, there is a multiplicity of guidelines of both ethical and legal nature pulling in different directions. It is not always clear what status ethical guidelines have in relation to each other. Sometimes this is an inherent property of the guideline, i.e. it does not in itself give clear guidance as to what status it has. For example, the Declaration of Helsinki on the one hand is said to be a statement of ethical principles that reflects a general consensus on how physicians should act, but on the other hand it claims to consist of protections so important that national law has to stand back in case of conflict. Sometimes it is the relation to other guidelines that is unclear, or they may contain statements to the effect that they compete for authority. Furthermore, it may be unclear which version of a certain document that is in force. For example, the American Food and Drug Administration uses versions of the Helsinki Declaration from 1983 and 1999, while the new EU Directive on good clinical practice refers to the 1996 version. WMA refers to the latest version as the authoritative document. Different ethical guidelines often express different ideals and values and can indeed conflict in certain situations (Hoff, 2004; Kassirer, 2001; Salter & Jones, 2002; Tröhler, 2002). When they do, the difficulty arises which one to follow. When they are in agreement, one or more of them may be superfluous. Guidelines might also conflict with responsibilities researchers and health care personnel feel they have vis-à-vis research and patients. In the debate on guidelines, the tension that may arise between the concern for patients and regulations meant to protect the interests of the very same patients is often highlighted. This happened in Sweden when a new Biobank Act was introduced in January, 2003. The discussions beforehand concerned whether non-competent persons (because of health condition, psychological state, or mental disease) should have a near relative or proxy giving informed written consent in their stead. Some held, that in order to maintain personal integrity, no one should have to leave samples for a purpose that they did not understand – the paradigm case held in mind was the inclusion of patients in studies of which they were not aware. This view won at the time. The result was that if the patient or a custodian had not given informed consent, no sample could be included in a biobank (Eriksson, 2003). The problem with this solution is that it is sometimes of great importance that samples are taken from non-competent persons in order to provide good quality health care. To hold on to the cornerstone of medical ethics – that the health of the patient is the first consideration – otherwise becomes impossible. There is yet another aspect of the multiplicity problem, namely that organizations try to establish rules and guidelines for various purposes, such as strengthening the identity of a profession, protecting a concerned part, or producing materials for education (Petersson, 1994). The Helsinki Declaration is a guideline construed from the perspective of medical doctors, based on the tradition from Hippocrates. It is not obvious how other professions are to understand the rules contained in the declaration. To what extent do they reflect a particular perspective from the viewpoint of physicians? Nurses devise their own guidelines, partly because of a desire to distance themselves from traditional medical ethics, and in doing so try to state what is special to the professional role of nurses, compared to that of doctors (Meulenbergs, Verpeet, Schotsmans, & Gastmans, 2004). Guidelines rarely specify how conflicts with other normative sources are to be resolved. In order to successfully handle conflicts between different ethical guidelines, the principles or rules need to be ordered in some hierarchy or applied according to some more
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fundamental ethical principle – one that is not found in the guidelines. Thereby, also this situation shows the need for ethical competence among those who are to handle such guidelines. The Legalisation Problem Finally, we want to point to a third problem regarding ethical guidelines, namely that ethical concerns take on a legal form. In recent years, a common response to ethical challenges in research and health care has been to develop new legislation. The view that professional self-regulation is insufficient seems to have become increasingly common, while the role of legislation is rarely discussed. A number of negative consequences can be tied to this development. First, researchers and laymen are often not competent enough to correctly interpret the complicated regulations. Following the new Swedish Act on ethical review (2003:460), the review boards are chaired by judges. There is a risk that the creation of such a legal framework to ethical review will lead to a situation where ethical reflection is replaced by a procedure of legal interpretations; the question of what is ethically sanctioned turns into a question of what is legally permissible and intended. Further, this legalistic development might lead to a different understanding of existing guidelines. Their character of rules comes to the forefront, and the formulated rules tend to be understood as the final word on what to do. This would only be an extrapolation of a development already seen in ethical reasoning in this field. Traditionally, ethical problems in health care have been discussed in relation to ethical principles (Beauchamp & Childress, 2001) which originally were intended as heuristic principles, but which in practice have come to be understood as definite principles for decision-making. Thus, the basic principles are treated as given, although people often disagree about them, both in terms of how to interpret them and how to rank them. Last, this development may take us to a point where we expect the rules to ‘do the job’ for us. As already emphasized, there is a distance between the rules and their use. All principles, rules, and guidelines have to be applied in concrete situations by individual professionals, and often the rules cannot unambiguously specify how to act in specific cases. By singlemindedly stressing the regulatory framework, there is a risk that we forget that it is the researcher or the doctor/nurse who has to take the final moral responsibility. Therefore, the ethical competence must lie with the professional – it cannot be encapsulated in rules. A recent case that serves to illustrate some of these problems is the much-discussed case of a Swedish researcher prosecuted for refusing to hand out sensitive data. A court order in 2003 ordered his research team to hand over sensitive data on patients and their relatives to two critics of their research. The basis for the court’s decision was the section of the Swedish constitution relating to public access to public records. As a public body, the university must make documents available to citizens upon request unless they are protected by the Secrecy Act. The researchers, however, felt that the original court ruling that granted access was flawed since it did not take ethical concerns seriously enough. The researchers had previously promised full confidentiality to all study participants. They proceeded by contacting them to ask if they would be prepared to have the data released – all but one family reportedly refused. The Court of Appeal ruled that there is no legal possibility to promise a greater protection of sensitive data than that given by law, thus the promises made by the researchers cannot be given precedence over the right to access public documents. Here careful consideration of different ethical aspects of the case is replaced by a court ruling that gives no room for ethical considerations once appropriate
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sections of the law can be applied. Thus, a strongly felt professional ethical obligation not to breach confidentiality (Kipnis, 2006) is impossible to uphold without facing criminal charges. Perhaps not surprisingly, Swedish physicians have called for the redress of the research group on the grounds that the Helsinki Declaration has priority over national legislation (Johnson & Fernell, 2006).
The Virtue Ethics Alternative Based on the described problems we argue, that when it comes to ethical competence building in health care, the importance of ethical guidelines is overestimated. As an alternative, virtue ethics has been much favoured among nursing ethicists in the last decade (Cameron, 1996; Gardiner, 2003). Not least has it been argued that virtue ethics is relevant when it comes to developing ethical competence within health care practice (Begley, 2005). ‘Virtue’ comes from the Greek word arete which means ‘excellence’ in relation to a skill or a trait of character. The term is very much linked to function, which is also applicable on the ethical skill a doctor or nurse is assumed to develop: “A good nurse or a good doctor perform their functions well and this requires excellence in skills, in theoretical knowledge and in moral virtue (excellence of character)” (Begley, 2005, p. 623). In virtue ethics there is no cardinal principle, as in utilitarianism (utility) or deontology (duty or right), from which we can derive action guidance. The primary concern is with what sort of persons we should be and a basic assumption is that a ‘good’ person performs morally ‘good’ and rightful actions. According to the results of an empirical investigation concerning the ethical competence of Swedish health care providers (Höglund, 2005), the staff adheres to the virtue ethics tradition, rather than to a rule based ethics. Some of the informants in the study held that they possessed some kind of ‘tacit knowledge’ (Herbig, Bussing, & Ewert, 2001) in questions of ethics, a knowledge that was to a great extent described as the possession of virtues, such as being brave or empathetic. Ethics could not be ‘learned,’ the subjects held, rather you develop your ethical competence by following the good example. Knowledge of codes and regulations was therefore not regarded as necessary for the development of ethical competence. Can a virtue ethics approach replace acquaintance with ethical principles, codes, guidelines and laws? A strict virtue ethics position would imply that it can. We argue, however, that this position can turn ethics to solely a tacit knowledge. Thereby the health care provider might ignore ethical judgements and end up with poorly reflected and inconsistent ethical decisions. There is also another problem tied to the implementation of a virtue ethics approach. In order to make virtue ethics more practical for health care providers suggestions have been made of appropriate virtues for nurses (Silfverberg, 1999), such as wisdom, patience, empathy, concern, flexibility, humbleness and attentiveness. Similarly, Oakley and Cocking (2001) have suggested suitable virtues for medical doctors including, for example, benevolence, truthfulness, courage, justice and to inspire confidence. Considering the long history of nursing as a task devoted particularly to women, such virtue lists may, however, be problematic. Several of the suggested character traits for nurses, such as patience, empathy, concern, flexibility, and humbleness, are traits that are traditionally tied to the cultural construction of femininity (Tong, 1998). A virtue ethics approach in this sense might consolidate traditional understandings of gender and ethics. Gilligan (1982) was the first to show that the moral development of
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women and men are tied to cultural gender norms, which made it reasonably for women to develop an ethic of care, whereas men in Gilligan’s investigation, developed and ethic of justice. Both these types of moral attitudes are closely related to the gender construction in the context Gilligan studied (i.e. a Western, white, middle class context). A virtue ethics approach in health care practice needs to take these aspects into account.
A Communicative-based Model So far we have argued that a too narrow focus upon ethical regulations might be counterproductive when it comes to the development of ethical competence in health care. Further, we have suggested that a virtue ethics approach is promising, yet not enough for our purposes. Virtue ethics is commonly referred to as an ethic of being, since virtue ethics concerns good character traits. Deontology and utilitarianism, on the contrary, are commonly referred to as ethics of doing, since they are primarily concerned with how to act. In relation to ethical guidelines, the doing aspect has very much come to be understood as plainly following the instructions given by the stated rules. We argue, that ethical competence must include aspects of both doing and being, but also aspects of knowing. This is why we suggest a third road, combining both a critical, yet not dismissive, attitude towards ethical guidelines (based on the three fields of problems we have identified) as well as a similar attitude towards virtue ethics (as described above). Our suggestion of a model for the development of ethical competence in health care is instead a communicative-based model. Some models of communicative (or discourse) ethics in health care have previously been suggested (Bosek, 2002; Gatter, 1997; Rudnick, 2002). Our suggestion differs from these examples through its emphasize on using the dialogue model as a way to bridge the gap between a virtue-based versus a regulation-based approach to ethical competence-building in health care. What communicative ethics adds to the understanding of virtue ethics in health care practice and to the predominant attitude towards ethical guidelines, is the presumption that ethical competence presupposes conscious and reflected decision-making. Therefore, a continuous education and reflection on ethics is necessary in the training for doctors and nurses, as well as in their daily professional lives. In order to maintain a high level of ethical competence, the work organization must provide support structures for the staff in the form of, for example, ethical rounds, i.e. interdisciplinary discussions in which ethical aspects of clinical cases are put forward (Hansson, 2002; Kälvemark, Höglund, Hansson, Westerholm, & Arnetz, 2004). In these rounds, a basic assumption is that dialogue as such is not enough – the form, the procedure, of it is also important. Therefore, a moderator assures that the discussion abides to the norms of a democratic dialogue (Young, 2000), meaning that everyone present has the right to participate, to influence the agenda, to express their views and to be listened to respectfully. In such dialogue the meaning and impact of different guidelines can be discussed, as well as the appropriate professional guidelines. The dialogue can also foster an interpersonal, perceptive apprehension of the various virtues at play, so that those virtues can be expressed and shared. Professionals can use guidelines as an ethical reminder or as a starting-point for reflection, but they also need an ability to apply them to concrete ethical dilemmas in their work. Following the good example might be one way, but this strategy also risks remaining a tacit knowledge, resulting in poorly reflected and inconsistent ethical decisions. It can also lead to a persistent moral uncertainty among health care providers concerning on what
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grounds ethical decisions are made. This is why we argue that ethical competence should include not only an awareness of guidelines and regulations, but also an apprehension of suitable virtues for one’s work. In an ongoing dialogue, both these aspects can contribute to the development of ethical competence in health care and medical research. Conclusion Three problems concerning ethical regulations have been identified: the interpretation problem, the multiplicity problem, and the legalisation problem. The existence of these problems shows that ethical guidelines cannot, by themselves, provide a solid ground for building ethical competence. Nor does a virtue ethics approach provide a satisfactory solution, since it often takes the form of a tacit knowledge and opens up for poorly reflected and inconsistent decision-making as well as a cementation of gender-biases. We have argued that decision-making based on familiarity with ethical guidelines and principles, modelled on good examples, and exposed to critical reflection can be enhanced by using the communicative-based model we have suggested. Through such work, all three important aspects of ethical competence-building in health care will be included, namely: being, doing, and knowing. References
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Further Reading
The Declaration of Helsinki. Ethical Principles for Medical Research Involving Human Subjects. WMA General Assembly, 2004. Swedish Act on Ethical Review (2003:460). Swedish Biobanks Act (2002:297). Swedish Secrecy Act (1980:100).
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