The following editorial can be found in our December 2022 issue.
This month’s Target Article by Blumenthal-Barby et al. offers a defense of the importance of philosophy to bioethics. The authors cite the crucial role of philosophers in the development and application of theories, principles, and concepts, such as the Doctrine of Double Effect (DDE) to concrete problems in bioethics. We are skeptical of these claims for reasons articulated by both Banja and Fedyk in their commentaries and that were well articulated by Art Caplan many years ago. Principles and theories aren’t “applied” in any straightforward sense, in either the sciences or in moral problem solving. Take as an example our experiences of theoretical under-determination of theories of justice in the context of COVID resource allocation committees. We were asked to assist in applying theories of justice and principles of bioethics to concrete problems of allocation of scarce vaccines and drugs, but we soon discovered that any attempt to apply a theory required us to move so far away from the theory itself that we weren’t so much “applying” a theory as we were simply offering a morally-flavored answer to the allocation questions. Although there is a sense in which bioethicists can introduce some ethical flavor to conversations like that, it is not an application of a principle or theory in any obvious sense. Or, more directly, the authors believe that DDE and its distinction between intentional harms and non-intentional, yet foreseeable harms can aid in answering important questions surrounding medical aid in dying. Even if it is true that attempts to apply DDE cannot overlook the rich philosophical literature on that topic, it is not clear that any version of DDE that is sophisticated enough to withstand scrutiny according to the standards of analytic philosophy would be simple enough to be wielded by non-specialists without having its content watered down. Alternatively, any version of DDE simple enough to be used in that context would not require the input of philosophers. In other words, even granting that theories are applied, it is not clear that applied philosophical ethics in this sense will be able to strike the right balance between theoretical correctness and parsimony. Hence, under-determination is likely to remain in this realm despite philosopher’s best efforts.
We particularly appreciate Fedyk’s appeal to philosophy of science and philosophy of biology for a potentially more fruitful model of philosophical contributions to bioethical problem solving. At the same time, this approach highlights some of the limitations of bioethics being done by scholars in philosophy departments. As a journal editor, one of us often sees work that is well argued, but misguided, because it is based upon false assumptions as a result of ignorance of the real world of medicine or science (e.g., conflating two very different technologies so that the arguments being made don’t apply to either). Just as it is not possible to do good philosophy of science without knowing something about the relevant content area, it is not possible to do good clinical ethics without knowing some clinical medicine or research ethics without knowing the relevant medical or technological details.
We are in far greater agreement with Blumenthal-Barby et al. about the contributions of other areas of philosophy to bioethics, such as epistemology, metaphysics, philosophy of mind, and philosophy of science. To this list should be added philosophy of language, especially pragmatic theories of communication. In the mid-20th century, philosophers like H. P. Grice, J. L. Austin, and John Searle developed a framework for understanding language and communication that ditched the idea of linguistic communication as the mere transmission of ideas from a speaker to a hearer, replacing it with a more nuanced, multifaceted understanding of the aims of communication. On their view, we actually do things with words. In the appropriate context, saying “I now pronounce you husband and wife,” constitutes the performance of a marriage. When one asks someone, “Do you know what time it is?” they do not just answer “yes” or “no,” which would constitute a literal answer to the question. Instead, they offer an answer such as “11:58 AM” or “about noon,” thereby evincing recognition of a request for information that underlies the literal words. This is sometimes referred to as an indirect speech act.
We have come to realize that, just as Grice et al. reframed philosophy of language away from the mere study of how information is communicated, philosophy of language can help to reframe informed consent practices in a productive way. The standard picture of informed consent is that the clinician (in clinical care), or the researcher (in clinical research), has ideas that they hope to convey to the patient or research participant. They use words to convey those ideas to the patient or participant who then understands the meaning of the words and thereby has the concepts or ideas that the clinician or researcher were trying to convey.
The voluminous literature that demonstrates a lack of understanding of key aspects of research on the part of large numbers of research participants is usually taken as a spur to improve understanding: if consent forms could be made simpler or clearer language could be used, the standard picture could be realized, and participants would understand the meaning of the words being used. We believe this is a dead end, built on a false picture of how language works. A better approach would acknowledge that informed consent is in important ways a performative utterance, or even perhaps an indirect speech act.
Consider an example where this point is relevant. A patient says to the nurses who see him in his hospital bed on the wards that he is miserable, in pain, and has already lived long enough and wishes it would just stop. After several such statements, the nursing staff express to the treating team their concerns that the patient is still receiving aggressive (and often painful) interventions, given these statements. The physicians are surprised as they have never seen the patient waver from his attempt to get through his current problems and return home. When the ethics consultant visits the patient, he is upset that the nurses “told on him” and says of course he wants to continue aggressive care. He was just complaining. This case illustrates the potential for confusion about what type of speech act is occurring. The nurses interpreted the patient at providing an informed refusal or as attempting to communicate a preference based on medical information he had received, when he was just complaining. In other words, it was productive in this case to pay attending to what practical purposes words such as “I wish it would just stop” perform, not just what information they communicate.
Even if informed consent is not primarily about exchanging information between a speaker and a hearer, it still plays an important function as a demonstration of respect, regardless of whether consent is based on an understanding of the clinical information or research protocols. Hilary Putnam’s concept of the division of linguistic labor shows how people can use words successfully without having any understanding of the extension of the words they are using. To use his example, one of us does not know the difference between beech and elm trees. The only idea in his head is that they are deciduous trees. Nonetheless, when a neighbor tells him that their beech tree has rats living in it, he can convey that fact to others (“hey honey, the neighbor’s beech tree has rats living in it”). Similarly, a patient can still communicate consent to some medication even if they cannot offer a precise description of its risks and benefits relative to other possible medications. They may simply communicate their trust that the clinician is offering them an appropriate medication. Not all of us needs to understand the difference between a beech and an elm tree as long as there is someone else in our linguistic community who does understand. Language is fundamentally a social activity that depends upon context and community to work.
This brief outline highlights a potential radical shift in thinking about informed consent, shared decision making, and communication between patients and physicians that is driven by insights from philosophers of language, in collaboration with allied academic disciplines such as linguistics and linguistic anthropology, and does without pigeon-holing the philosopher’s role in bioethics as a mere elaborator of inert ethical theories and principles.