Intuitions in Biomedical Ethics

The Role of Intuition in Informed Consent:

How Epistemological Problems can be Ethical Problems

Epistemologists debate about the role of intuitions in uncovering the concept of knowledge. Given certain thought experiments, philosophers attempt to gauge intuitions to decide whether 'Jones has knowledge or not' given a case. While some argue for a type of intuition elitism, some are skeptical of seeing just one intuition as correct or relevant, and choose to be pluralist with respect to intuitions. Judging from articles in Readings in Biomedical Ethics, a similar debate can be raised concerning the concept informed consent (IC); given a certain case, does one think that a physician and a patient has achieved an ideal level of IC, and given a split in intuitions on this regard, which perspective should be given epistemic and moral precedent? In this essay, I will first briefly summarise the epistemological problem raised above, I will consequently illustrate Benjamin Freedman’s position in A Moral Theory of Informed Consent in which he offers a so-called  ‘Western perspective’ on what constitutes IC. (Kluge 147) I will then raise some claims made by Insoo Hyun in Waiver of Informed Consent, Cultural Sensitivity, and the Problem of Unjust Families and Traditions, where Hyun argues that certain intuitions about IC may not be cross-cultural. I will show that the epistemological question entails the moral question of: given a situation where the intuitions of the parties involved differ on what constitutes IC, whose intuitions ought the hospital acknowledge as relevant? I will argue that, while hospitals must be sensitive to differing cultural perspectives on the concept of IC, as well as critical of its own concept of IC, the hospital has a moral obligation from an ethical objectivist position to ensure its own notion of IC is met; this epistemological problem is significant for an ethical objectivist with a deontological applied ethical perspective insofar as IC is a necessary condition for achieving moral success in a given case.

Philosophers routinely create and participate in thought experiments to test their intuitions about concepts. While there are more contemporary examples of this, like the Gettier case^[1], this method goes back to the beginnings of philosophy as we know it. For instance, In the Theaetetus and other dialogues, Socrates regularly assesses the intuitions of his interlocutors to judge whether a certain case constitutes knowledge.^[2] Given these intuitions, Socrates concludes among other things that accidentally getting things right, or simply true belief without justification, does not constitute a proper entailment of the concept of knowledge. (Plato 201 A-C) The assumption seems to be that one can achieve an understanding of objective concepts by appeal to intuitions. Goodman names this process a ‘reflective equilibrium’; an activity in which one judges a particular case by virtue of an appeal to intuitions about a concept he or she possesses. (Nagel 794) However, Stitch has argued that, insofar as intuitions concerning knowledge seems to vary cross-culturally, how should one choose one set of intuitions over another in a given case?^[3] (Stitch 75) For instance, given the Gettier example, Stitch found in an experimental study that intuitions as to whether Jones had knowledge or not varied based on culture; most Western participants responded that Jones did not have knowledge, while most east-Asian participants responded that he did. (Weinberg, Nichols, Stitch 17)^[4] Giving the seeming contradictory intuitions, whose intuitions should be considered and why?

What does all of this have to do with informed consent? The question of intuitions seems to extend to the concept of informed consent; given a situation where the intuitions of the doctor and the patient involved differ on what constitutes IC, whose intuitions should the hospital acknowledge as relevant? This might seem trivial at first, but when one considers that, as Benjamin Freedman puts it, “(IC) is a substantial requirement of morality”, one can see that for a ethical objectivist the epistemological question possesses the utmost moral urgency; IC is a necessary condition for achieving moral success in a given case, and, insofar as there is a debate concerning what constitutes IC (as will be shown later in Hyun’s article), how can the ethical objectivist be sure he or she is achieving moral success? (Kluge 157) If one argues that IC conditions are objective, then if a and b have contradictory views on what constitutes IC and whether it is achieved in a given case, they both can’t be right.^[5] Thus enters the moral dilemma: insofar as IC is an essential aspect of moral success in the doctor-patient relationship, and intuitions do differ on whether the standard of disclosure and the standard of comprehension consist in, whose moral intuitions should an institution follow? I will now show that: a) there seems to be varying cross-cultural intuitions as to what constitutes IC, and furthermore, I will argue that b) the hospital should retain its own standard for IC while being critical of its own standard, and be sensitive to differing cultural perspectives on IC.  

In Benjamin Freedman’s A Moral Theory of Informed Consent, Freedman claims that ‘most medical code of ethics, and most physicians, agree that the physician ought to obtain the “free and informed consent” of his subject or patient before attempting any serious medical procedures (...).’ (Kluge 157) It is clear that, for Freedman, IC is ‘not merely a legal requirement’; it is a ‘substantial’ moral condition. (157) While Freedman is concerned with practical problems like: ‘what is enough information’, and ‘(a)t what age is a person mature enough to consent on his own behalf?’, he claims that ‘what is required is an exhaustive examination of each case and issue, to see whether or not a valid consent has in fact been obtained’.^[6] (158-159) While this might seem prima facie sound, one must ask: whose intuitions concerning what constitutes IC should be considered during this examination? While, as stated early, Freedman argues that most physicians would agree on what constitutes IC, could these intuitions be contradictory to the intuitions of a patient and his or her family? I will now illustrate an argument that posits intuitions concerning what constitutes IC could be culturally specific.

In Insoo Hyun’s Waiver of Informed Consent, Cultural Sensitivity, and the Problem of Unjust Families and Traditions, Hyun argues that the Western concept of IC may not be cross-cultural insofar as: the notion of IC in the Western hospital policy is generally shaped by the ‘Western ideal of personal autonomy’, which might be in conflict with a ‘family centered model of decisionmaking’. (167) For instance, while ‘full disclosure’ and ‘patient self-determination’ might be the foundation stone of the western concept of IC, this might be at odds with ‘minority patients wish to remain uninvolved with the in the medical decisionmaking process, wanting instead to defer to their family's choices’. (167) Hyun concludes that in attempting to achieve a Western ideal of IC might clash with the ‘principle of respect for persons that the doctrine of informed of consent was meant to protect.’ (167) In the same way that intuitions concerning the concept of knowledge might vary cross-culturally, intuitions as to what constitutes IC vary as well. Thus enters a moral predicament: given a situation where the intuitions of the parties involved differ on what constitutes IC, whose intuitions should the hospital acknowledge as relevant in attempting to achieve IC?^[7] 

While hospitals should be sensitive to cultural differences, and even go as far as to attempt a compromise in certain cases, if one is a ethical objectivist and considers IC to be essential to achieving moral success, then one cannot be a full-fledged relativist with respect to IC if one wants to achieve moral success; if a hospital’s notion of IC contains a standard of disclosure (SOD) and a standard of comprehension (SOC), then these are necessary to achieving moral success. The argument goes like this:

p1.IC is a substantial ethical requirement. (Freedman)

p2. Substantial ethical requirements must be met in order for an action to be ethical. (4 Kluge)

p3. IC entails/contains SOC and SOD. (Freedman)

c4. For an ethical demand to be met/ethical success to be achieved in a case of IC, SOC and SOD must be present.

This argument shows that a) if SOC and SOD are not met in a given case, then ethical success is not achieved, and b) if SOC and SOD are met in a given case, then success has been achieved. So while there could be a debate about what constitutes IC, it is clear that if a hospital wants to be an ethical objectivist about IC, as Freedman does^[8], then one must ensure SOC and SOD are met. Therefore, it seems as if the hospital has an ethical obligation to ensure its own IC conditions are met even if there is a debate about which version of IC to apply. However, the mere fact that there is a debate about the concept of IC seems to entail that hospitals should not take their intuitions for granted or as arriving ex nihilo; while SOC and SOD are crucial to IC in a  a  hospitals ought to be critical about whether there IC conditions meet the standard of respect required of them when treating patient, and furthermore, hospitals should be aware of their reasons for thinking why SOC and SOD are necessarily a part of IC insofar as IC has the moral exigency that it does. Such investigations into the nature of the concept of IC are necessary for developing a robust and morally permissible applied notion of IC.

Word Count: 1510

Work Cited:

Cooper, John M., and D. S. Hutchinson.Complete works: Plato. Indianapolis, Ind.: Hackett Pub., 1997. Print.

Kluge, Eike. Readings in biomedical ethics: a Canadian focus. Scarborough, Ont.: Prentice Hall Canada, 1993. Print.

Knobe, Joshua Michael. Experimental philosophy. Oxford: Oxford University Press, 2008. Print.

Nagel, Jennifer. "Epistemic Intuitions."Philosophy Compass 2.6 (2007): 792-819. Print.

Sosa, Ernest, Jaegwon Kim, and Matthew McGrath. Epistemology: an anthology. Malden, Mass.: Blackwell Publishers, 2000. Print.

Stich, Stephen P.. The fragmentation of reason: preface to a pragmatic theory of cognitive evaluation. Cambridge, Mass.: MIT Press, 1990. Print.

---

[1] Find in: Sosa, Ernest, Jaegwon Kim, and Matthew McGrath. Epistemology: an anthology. Malden, Mass.: Blackwell Publishers, 2000. Print.

[2] Nagel, Jennifer. "Epistemic Intuitions."Philosophy Compass 2.6 (2007): 792-819. Print.

[3] Stich, Stephen P.. The fragmentation of reason: preface to a pragmatic theory of cognitive evaluation. Cambridge, Mass.: MIT Press, 1990. Print.

[4] Knobe, Joshua Michael. Experimental philosophy. Oxford: Oxford University Press, 2008. Print.

[5] Given the ‘ethical objectivist’ position stated in lecture one and in Kluge 3.

[6] My italics.

[7] While this is an epistemological problem, it remains moral; the hospital must make a decision about how to approach the issue, and this decision clearly has moral weight insofar as IC is a substantial moral condition, and its attainment is crucial to both parties involved, even if they disagree on what constitutes the concept.

[8] Hyun similarly concludes that, even if one revises the notion of autonomy to be more inclusive of a communitarian perspective on the concept, there still seems to be a need for so-called ‘moral imperialism’ which extends ‘right to personal autonomy’ to people of all cultures . (177)