1.
Short Communication
The
coronavirus crisis has brought special attention to medical ethics. Advances in
medicine, which give rise to new ethical dilemmas, also argue for a stronger
emphasis on medical ethics. Examples include organ transplantation with the
question, e.g. of the criteria for death, euthanasia, preimplantation or
prenatal diagnostics, human genetics and the discussion about the “informed
consensus”. Multi-disciplinary expertise (philosophy, research, clinical
practice, legislation, politics, etc.) is essential for an ethical consideration
of these topics1.
The
ethical framework for medical ethics is formed by conventions (e.g., the
Universal Declaration of Human Rights of the United Nations or the Convention
on the Rights of the Child), medical oaths, e.g. (the Hippocratic Oath), codes
(e.g., the Nuremberg Code), declarations (e.g., the WMA Declarations of Geneva
or Helsinki) and principles (e.g., the four principles of Beauchamp and
Childress). These have almost timeless and general validity but can only cover
individual cases to a limited extent. From a clinical perspective, medical
guidelines appear to be more appropriate. They represent the generally accepted
and binding standards of the medical-technical ‘state of the art,’ but they
often do not do justice to medical-ethical aspects. However, general experience
shows that the individual case frequently constitutes the exception to the norm
and rule. From a medical-ethical point of view, however, this often requires a
middle way between pure medical ethics and strict guideline medicine. This
‘golden’ middle way leads to the path of epikeia and questions about the
medical tradition's moral and ethical norms.
Responsibility,
hope and trust are concepts that have so far been given too little importance
in the context of medical ethics2. Two other concepts might also be helpful for
decisions in medicine: Epikeia and Proportionality.
2. Epikeia
The
term epikeia (Greek: ἐπιείκεια, epieikeia, Latin: aequitas = equity, German:
Billigkeit)3 refers to the proper
behavior of a person, which proceeds according to the principle of
reasonableness, appropriateness and equity in dealing with positive legal norms4. It is the ability to recognize the dominant
concerns of a legal system and to implement them beyond the strict letter of
the law into action5. The term epikie
originates mainly from the legal context as the interpretation of the law in a
particular case, but was already important in pre-Socratic philosophy,
especially in Aristotle.
However,
to arrive at sustainable and consensual ethical decisions, it is helpful to act
following the so-called “epikeia” if the special aspects of the various ethical
models are not sufficient in individual cases to behave ethically well under
challenging situations. The same also applies when overarching norms cannot be
adhered to, e.g., in cases for which no laws exist or in specific situations
that the legislator could not have foreseen.
Medical
decisions must be able to take complete account of individual situations and
personal circumstances. Such decisions require a broad margin of discretion6. A doctor acts following the principle of
epikeia when he recognizes that a regulation or law, a guideline, does not
correspond to the circumstances of his situation and therefore does not follow
it and decides to do what is right in the situation.
According
to Aristotle, it took 1.500 years before Thomas Aquinas revisited the topic of
the epikeia, which was then incorporated into Catholic moral theology and canon
law.
In
medical ethics, the epikeia is becoming increasingly important due to the growing
use of technology and the rise of medical treatment based on feasibility,
coupled with a decline in personalized care. In addition, there are borderline
situations, especially at the beginning and end of life, that often cannot be
resolved only with medical expertise7.
When
it comes to making morally responsible, person-centered decisions, the
individual doctor acts in the sense of the epikeia as a principle of personal
ethical decision-making in line with demand, following the path of the “golden
mean” proposed by Aristotle8. He
decides between the excess of polypragmasia (of what is feasible) and the lack
of a (minimal) medicine that is rationed, for example for cost reasons.
However, refraining from expanding diagnostics and therapy, for example, in hopeless
situations, can be in the patient's best interest. Thus, the epikeia becomes a
cardinal virtue of medicine.
The
epikeia is based on the freedom and equality of all people. It is linked to the
fundamental understanding of inalienable individual freedom of choice and, thus
personal responsibility. Freedom of conscience and, occasionally, civil courage
also come into play. The consequence of responsibility is that the person
taking action is accountable for the foreseeable consequences of their actions9.
3. The Principle of Proportionality
Generally
speaking, the principle of proportionality means that legal acts must not go
beyond what is appropriate and necessary to achieve their intended objective.
Accordingly, costs and bureaucratic effort must be kept to a minimum. This
creates a system that favors the smallest possible intervention10.
In
medicine, the two principles of beneficence and non-maleficence often give rise
to the problem of deciding between harm and benefit. This problem also shows
the ambivalence of every human action when the respective good or benefit
shapes a decision, but at the same time evil and damage are also caused and
allowed11.
After
the Covid pandemic, many questions arise. Was it right or proportionate to
close the schools and let the children learn online alone at home? Were the
curfews proportionate? Was it authorized to keep children away from
playgrounds? From a medical point of view, questions arise, such as whether it
was right to prefer certain people for vaccinations (e.g., elderly people) or
to make vaccination compulsory for medical staff or teachers.
A
study at the Max Planck Institute for Human Development analyzed the
effectiveness of early Covid-19 measures such as lockdowns and other
non-pharmaceutical interventions. The results may shed light on the right
balance of measures to deal with future pandemics12.
The
question of triage also arose. Due to a lack of sufficient resources, e.g.,
when only one ventilator still was available, doctors had to decide which patients
they should treat and which they should not, i.e., they were faced with a
dilemma because they could not save all patients13.
Another
question was: should doctors and nurses act heroically and, for example,
perform resuscitation on a maximally ventilated COVID19-positive patient in
cardiac arrest with acute respiratory distress syndrome and expose themselves
to infection because relatives demand that ‘everything be done’?
“Proportionality can provide a means to redistribute burdens of care more equitably,
so one does not need to be a hero to practice ethically. Proportionality in an
emergency that goes beyond a focus on the individual patient can also inform
decisions about rationing intensive care and allocating institutional resources
devoted to palliative care14.”
This
example shows where the principle of proportionality becomes important. A
decision is proportionate if the benefit outweighs the harm. This can be the
case if, for example, a cytostatic treatment leads to significant side effects
but is carried out with consent because it is hoped that it will combat a
malignant tumor. However, the decision can also be made in reverse if
necessary. A more straightforward example is a house fire. Is it appropriate
for the fire brigade to extinguish the fire with water but destroy the entire
house?
This
question of the risk-to-benefit ratio also arises for every surgical procedure
and every individual patient. The decision should consider the patient's
autonomy and, if they can no longer make decisions, their relatives or health
care representative.
Proportionality
also is an important addition for ethical decision-making between benefit and
harm for the patient (“Are we doing more harm than is necessary?”). It
contributes to the well-being of medical staff and may help choose between
curative and palliative medicine.
“The
principles of bioethics (autonomy, beneficence, non-maleficence and justice)15 are important to include in ethical
decisions, but each one alone presents little guidance for how to weigh or
balance principles or how to account for harm16.”
4. Summary
Conventions, human and children's rights, declarations and oaths (e.g., the Hippocratic Oath) provide a generally applicable framework for medical-ethical decisions. In a clinical context, guidelines appear to be more appropriate, as they consider typically recognized medical and technical standards. However, to do justice to the individual case and the individual patient, the principles of epikeia and proportionality should be applied. The term epikeia comes from the philosophy of Aristotle and has found its way into the moral theology of the Catholic Church. In the medical context, it enables an ethical procedure according to the rules of reasonableness and fairness, considering the needs of the individual person or patient. The principle of proportionality is essential for making ethical decisions and distinguishing between the principles of beneficence and non-maleficence or not doing more harm than is necessary.
5. References