The Priority of Authority?
Killing or Letting Die, Part 4
Killing or Letting Die, a series on decision-making when death is at the table:
Part 1 - Intending or Pretending?
Part 3 - Causation or Conflation?
Part 4 - The Priority of Authority?
We continue our exploration of the differences between killing and letting die by tracking the concept of authority.
In the landmark paper by James Rachels, he described two cases to help make his point that there’s no moral difference between killing and letting someone die. In one case, a man forces his young cousin under water to drown him. In the other case, the cousin slips, hits his head, and slides under the water. The man watches on and doesn’t lift a finger. Rachels argued that if there were a true difference between killing and allowing to die, we would claim the man in the first case behaved worse than the man in the second. We don’t, and therefore Rachels concluded there’s no difference.
Did the uncle in either case have the authority to act as he did, or to act otherwise? I’m not sure if Rachels intended this, but being an older uncle of a younger nephew does put the man in a position of authority. That role’s authority is vague, but it at least suggests some degree of power. The way the cases are constructed, neither uncle has the authority to end the boy’s life. However, by virtue of his being a likely caregiver for the boy, the uncle does have the authority to intervene if harm befalls the boy. One reason why we indict both uncles is because he abused his authority in both cases.
Let’s see what this has to do with clinical authority.
What is authority?
Just like our exploration of intention, duty, and cause, authority is more complicated under the surface. Alas, my limited knowledge of political philosophy will hobble us here, so I’d appreciate any comments you can share to improve my understanding.
Authority is justified power to impose a duty. It’s hard to claim any person or institution has authority if they don’t have power. The “impose a duty” part is less obvious. Consider that the government can compel its citizens to pay a tax. The money for that tax might go to local schools, something many people would willingly fund anyway. But the government’s imposition of a duty to pay the tax overrides any other concerns. You will pay the tax because the government says you must, even if you also appreciate that the money is used in a way you like.
Some power is unjustified, and so some authority is illegitimate. People may appeal to deeper values like justice that can act as standards against which the practices of authorities can be weighed. Sure, there’s trouble in reaching agreement on what these abstract values mean, but every movement of government presumes an end at which those movements aim. Laws change by claiming that current conditions aren’t as just as they could be, and the vigorous debate that follows results from differing understandings of justice.
Still, usually it’s governments that do the authorizing for other institutions and people. Law enforcement officers, teachers, and clinicians can do what they do because of the authority conferred on them by the government (and licensing bodies, which themselves derive authority from the government). In the course of this authorizing process, one might appeal to higher ideals. Law enforcement officers bear their peculiar authority so as to pursue justice. Teachers bear their peculiar authority so as to pursue education. Clinicians bear their peculiar authority so as to pursue health.
What authority do clinicians have?
Jake Greenblum and Ryan Hubbard argue that clinicians (specifically, physicians and other prescription-writing clinicians) have authority because they can impose duties on others.1 They cite some obvious cases, like involuntary commitment, involuntary quarantine, and discharge over objection. However, these are relatively uncommon and only performed by a subset of clinicians - can it really be said that these are evidence that clinicians have authority? Some argue that no, clinicians don’t have authority. They only give advice. Patients can take it or leave it.
This is where Greenblum and Hubbard turn to the humble prescription. In a hospital, the prescription is called an “order,” with the expectation that it will be carried out by others (e.g., nurse, radiology technician, etc.). In that sense, it’s very clearly a demonstration of authority. But that’s not what Greenblum and Hubbard have in mind. They’re arguing that these clinicians are authorities over their patients. How so?
They don’t impose a duty on their patient by writing a prescription.2 Rather, they grant permission to their patient to do a certain thing like take a medication. That permission necessarily imposes a duty on others to respect the patient’s use of the medication. There’s nowhere else the patient can go to get this kind of permission and so the clinician is the authority for the patient in this regard. If someone buys oxycodone off the street, they’d be found guilty of illegal possession of a controlled substance. But that same substance obtained via prescription requires that others, including law enforcement, respect their ownership and use of the medication. And while it’s not illegal (as far as I know) to buy an antibiotic off the street, the buyer doesn’t gain the same right to be respected. The one who sells medications on the street isn’t an authority because they don’t have the power to make others respect their buyer’s use of the medication.
This draws us onward to a different observation that Greenblum and Hubbard don’t make: clinicians have the authority to confer on others the role of patient. I’ve written about the challenges of the dying role before, and there are just as many challenges in trying to inhabit the sick role and patient role. Some people want to be declared sick but clinicians won’t authorize that, others don’t want to be declared sick but clinicians will authorize that (sometimes over a patient’s objection). Given the various privileges and rights that come along with being a patient in certain contexts, the authority to confer this role demonstrates immense power. We’ll discuss in a moment whether clinicians have the authority to confer on someone the role of “dead.”
Not only do clinicians have authority by way of prescription and assigning roles, they also possess expertise that others generally (ok, sometimes…) respect. This goes beyond mere advice. The state may be able to compel its citizens. Experts can compel people too, just not in the same way. Experts can compel through their reasoning. It’s a measure of the power clinicians have that we usually see a clinician’s evaluation and recommendation as authoritative and not merely suggestive. Patients talk this way all the time: “The doctor says I need the surgery,” “The doctor says I have to take this medication,” “The doctor says I can’t drive right now.” In the vast majority of cases, the clinician can’t enforce any of that. Nevertheless, it stands. Clinicians have expertise to recommend a course of action for accomplishing a goal that’s meaningful for the patient.
Which brings us to why clinicians have authority at all. If a clinician was found to have prescribed an abundance of oxycodone to various people so that “they could have a good time,” there’d be consequences. They’d probably lose their medical license and face criminal penalties. So even though a clinician’s prescription demonstrates their authority, that authority must aim at a particular purpose. There’s a standard that authority must meet. Clinicians do things no one else is permitted to do, like cut hole’s in people’s chests, irradiate organs, amputate limbs, prescribe chemicals, and so on. They aren’t authorized to do this for just any purpose (e.g., executions, tattoos, euphoric highs), but to restore and sustain health.
What does consent have to do with clinical authority?
If a clinician determines that a patient has pneumonia and gives them a prescription for an antibiotic, the clinician is demonstrating a particular type of authority over this patient, but the patient must also consent to the clinician’s authority. Yes, it’s true they can’t get this unique permission anywhere else, but they have the option of turning it down. So, a prescription (usually) can’t override a patient’s consent.3
Consent is more nuanced than this though. It’s not merely an expression of the patient’s right to accept or decline a clinician’s intervention. As Farr Curlin and Christopher Tollefsen argue, patients are in the best position to determine if a particular medical intervention will suit their goals. Patients determine how best to situate their health amongst all the other goods that might compete for their time, energy, and money. This is a form of authority - it imposes on clinicians a duty to respect the patient’s evaluation of the goods of their life. Clinicians can say what’s good for health, but they can’t weigh the good of health against other goods in a patient’s life.
The clinical encounter is thus a negotiation between these two forms of authority. Both forms of authority warrant respect, and both have limits. The clinician’s authority is (usually) limited by the patient’s consent, as well as the purpose of medicine (the pursuit of health). The patient’s authority is limited also be the limits of medicine. Patients usually can’t request medical interventions for non-medical purposes (e.g., “so I can have a good time” with those opioids).
But where’s that live killing and letting die?
Do clinicians have the authority to kill their patients?
While suicide is decriminalized in many jurisdictions, society generally doesn’t say people are permitted to kill themselves. Suicidal ideation and intent will usually elicit an involuntary evaluation from a mental health clinician. However, there are jurisdictions where exceptions are carved-out to this prohibition. Where assisted suicide and euthanasia (ASE) are legal, they require authorization from a clinician. Thus, clinicians have the legal authority to kill their patients. Do they also have the moral authority?
Tania Salem argued,
“Whereas in suicide the individual ‘drops out’ of the social order, in the context of physician-assisted suicide the individual ‘drops into’ a system that recognizes and must even authorize this particular (ostensibly private) choice. In other words, displacing suicide from the private arena to bring it under medicine’s stewardship means surrendering suicide to the (medical) ‘establishment.’ Precisely because assisted suicide requires the connivance of others (direct from doctors, indirect from society), it cannot be seen as an act that solely expresses the ideal of individual autonomy. On the contrary, as long as it entails assistance it implies a mutual decision. Additionally, and even more importantly, more than a mutual decision, assisted suicide presupposes that medicine has passed judgment on the act of suicide.”4
In a world in which people who express a wish to die are either shunted toward suicide prevention or suicide permission, “someone other than the person requesting aid in dying has greater expertise in judging the appropriateness of that request. Medical authority, that is, is assumed to have the proper ability to unveil the ‘real truth’ behind the request to die.”
So what are clinicians doing when they authorize a patient’s decision to die? First, they’re authorizing the permissibility of killing (either of oneself or someone else). Now you might say, “The state’s already done that. The state made it legal.” But as I’ve already suggested, there are deeper principles that allow us to hold the state to account. There are such things as unjust laws. By helping a patient to end their own life, the clinician authorizes in practice what the state has authorized in law. It’s not sufficient to claim, “The law says it, that settles it.”5
Second, they’re authorizing the patient’s decision. Of course, anyone could kill themselves at any time. Lethal means are tragically abundant. But if a patient wants to avail themselves of ASE, they need to go through a clinician and submit to whatever evaluations the clinician requires. The patient’s decision alone is insufficient.
We’ve already seen from Salem’s argument that the procedures of ASE subvert autonomy by subjugating the patient to the evaluations of the clinician. John Safranek goes further, echoing John Stuart Mill: Why is it, after all, that I can’t sell myself into slavery? Because the very act of selling oneself into slavery extinguishes the capacity one presumably used to enter into it (that is, autonomy). “Mill claimed that an individual cannot freely renounce his freedom without violating that good. Similarly, autonomous acts of assisted suicide annihilate the basis of autonomy and thereby undermine the very ground of their justification.” So, the value of autonomy alone cannot justify suicide.
A clinician isn’t just authorizing a bare choice, but a kind of choice about a life worth living. Safranek argued that the debate really isn’t over autonomy anyway, but over different conceptions of a good life:
“…[autonomy] is respected when invoked to protect acts that most people judge as good, for example, the preservation of society or human life, and is usually proscribed when employed in an invidious manner, as in acts of murder or robbery. Hence autonomy is necessary for the existence of a moral act but is insufficient to justify one. The justification of the act will hinge on the end to which autonomy is employed: if for a noble end, then it is upheld; if depraved, then it is proscribed. It is not autonomy per se that vindicates an autonomy claim but the good that autonomy is instrumental in achieving. Therefore an individual cannot invoke autonomy to justify an ethical or legal claim to acts such as assisted suicide; rather he must vindicate the underlying value that the autonomous act endeavors to attain.”
When a clinician authorizes a patient’s decision to end their own lives, they’re authorizing a way of life, one in which people can evaluate the worth of their continued living. They authorize whatever rubric might be used in such evaluations. Importantly, they can’t be said to merely be authorizing the patient’s choice without any acknowledgment of the underlying value judgments about what constitutes “good,” as Safranek argued.6
This is more readily apparent when considering more mundane prescriptions. If a clinician prescribes an antibiotic for a patient, they’re not likely to say, “Use this however you will. I don’t care what you use it for,” or “I’m neutral about what you use this for. I’m just supporting your decision to get an antibiotic.” No, the clinician has in mind to treat an infection. The same goes for chemotherapy, surgery, or an X-ray. A clinician’s work with a patient is necessarily aimed toward a particular end beyond the realization of the patient’s personal values. Sometimes it means the clinician affirms what the patient also values: “It’s good that people in these circumstances are killed.”
I’ve already written about the idea of a “life worth living” and whether death can be a goal of care. It doesn’t seem that the clinician’s authority can include either affirming or acting on evaluations about a life worth living, or in aiming at death. Those things would be a misuse of clinical authority.
Do clinicians have the authority to let their patients die?
If clinicians lack the moral authority to kill their patients (even if, in some jurisdictions, they have that legal authority), does that mean they also lack the authority to let their patients die?
As I remarked in the essay on causation, “allowing” implies both the capacity and authority to act otherwise. Most people probably have the capacity to turn off a ventilator, but only those with the authority to do so escape consequences, the strongest of which might label what they’ve done as “murder.” So discerning authority is critical to the moral evaluation of “letting die,” something Rachels neglected.
But if authority can permit “letting die,” why can it not permit killing? Based on the arguments we just reviewed, clinicians don’t have the authority to kill. Is there something different about their authority when it comes to letting die?
First, clinicians have the authority to deploy medical interventions, and they have the authority to withhold or withdraw them. Both require consent (bounded in the way I previously described). This doesn’t settle the matter, but it’s a basic, necessary point. It’s not like clinicians only have the authority to deploy medical interventions but never have the authority to withdraw them.
Second, when a clinician withholds or withdraws a life-sustaining therapy (LST), the clinician does indeed grant a “permission-right” not to be bothered by others, as Greenblum and Hubbard would say. But the basis of that permission-right isn’t fundamentally with the clinician’s authorization, but the patient’s pre-existing right to privacy, acknowledged by the UN as a human right and by many state constitutions. Many attempts are made to find more specific rights within this right to privacy. At least in the United States, our Supreme Court has not found a right for suicide or death, but has time and again reaffirmed the right to privacy for a number of other circumstances. Therefore, the clinician reaffirms, time and again, the goodness of that right whenever they appropriately withhold or withdraw a therapy. There are times when more harm than good can come from deploying LST over someone’s objection. It isn’t necessarily the case that the clinician must affirm any particular evaluation of a patient’s life by withholding or withdrawing LST. Their aim is elsewhere, even if the patient themself has determined that their life is not worth living.
Third, clinicians exert another type of authority when they confer on someone the dying role. This is a humble acknowledgment of the limits of medicine and the human body. Medical care, particularly LST, isn’t without its own burdens, and those burdens can exact a vicious cost for those who otherwise dying. There is a point at which medicine can become a poison. The dying role frees someone (and their inner circle) to pursue other values apart from staying alive. Just because staying alive isn’t the top priority at all times doesn’t mean then that shift in priorities becomes “killing.” These decisions are deeply ambivalent and the circumstances warrant lamentation, but that doesn’t mean they’re wrong.
There are circumstances in which privacy and autonomy are overridden for the sake of saving someone’s life. This occurs when a patient can’t demonstrate that they have the capacity to make relevant decisions. Absent the concomitant authority of the patient’s consent, the state favors the preservation of life (e.g., a John Doe rolls into an emergency department with a massive hemorrhage and clinicians know nothing else about him or his wishes). In such circumstances, the clinician lacks the authority to “let die” until another mechanism is used (e.g., surrogate decision-maker, multidisciplinary committee for a patient without a surrogate).
Is the clinician also authorizing a particular evaluation about a life by withholding or withdrawing LST when the patient says they want to do this so that they’ll die?
Unlike ASE, the decision to withhold or withdraw LST can have different intentions and aims, therefore we can’t say that every instance of withholding or withdrawing LST is an affirmation of the patient’s own purposes. Withholding and withdrawing LST also doesn’t necessarily use death as a means toward accomplishing another purpose. While the use of medical intervention may more directly affirm a purpose, the withdrawing or withholding of a medical therapy may humbly acknowledge the limits of those interventions to accomplish their intended purposes. Regardless of the aim, the physician’s authority is bounded by their duty to respect privacy. The right to privacy doesn’t include a right to be killed.
Even so, a clinician may express reservations about using their authority to manifest a patient’s desire to die by withdrawing or withholding LST if there are overriding clinical concerns (e.g., an easily treatable condition in an otherwise healthy person). When they do this, they may be harkening to deeper moral principles beyond mere preference satisfaction. A clinician’s authority is in service to an individual patient, yes, and also in pursuit of health. Insofar as a clinician may demur at a patient’s request to do something that’s otherwise permissible (even, in most circumstances, required), it may be because the clinician has trouble seeing how it may serve the patient’s health. It may also flag a patient’s loss of capacity to make that particular decision.
I’ve tried to make a case that clinicians lack the authority to kill while also possessing the authority to withdraw or withhold LST in a way that we call “letting die.” These two actions are different, as reflected in how we understand the engagement of the clinician’s authority with each one.
Next, I’ll conclude our journey through this series by pulling together intention, duty, causation, and authority to make some final points.
There are more abstract articulations of clinician authority, like T.T. Paterson’s “Aesculapian authority.” For the sake of simplicity, I didn’t want to cast the net too broadly. Hopefully the choice serves our purposes here.
They don’t make this argument, but I wonder if a prescription could be seen as imposing a conditional duty: “If you want to this pneumonia to improve, you must take this antibiotic.” Therefore, the patient is duty-bound to their own goal, not necessarily to the prescribing authority.
There are unique circumstances where clinicians can treat patients over their objection - e.g., some forms of psychiatric treatment and medical treatment when the patient lacks the capacity to decline the intervention are two examples.
In this same paper, Salem also argues for a less obvious, more formative aspect to medicine’s authority. It’s important and interesting but relegated to the footnotes as it may take us too far afield of our present inquiry: “Despite the space ceded to patients’ autonomous choices [to withhold life-sustaining treatments], one of the most dramatic aspects of medicine’s extended power over contemporary sensibilities has been precisely medicine’s ability to mold our conceptions about dying. This intangible aspect of medicine's power, such a crucial facet of the medicalization of death, is so deeply embedded in our culture that it goes unnoticed. The sway of medicine should not be understood as a Machiavellian strategy devised by doctors to dominate various domains of contemporary life; physicians themselves are under medicine's power and not always aware of their critical role in the cultural construction of death and dying.”
How do you prevent an endless re-litigation of settled matters then? Well, I don’t know. I’m neither a legislator, judge, nor attorney. Outside of any formal process to prevent that from happening, in a pluralistic society I suspect you’d have to win hearts even as you win legal battles.
Intentional death is a matter for philosophers, not doctors. They have no right to intervene in someone's personal choice to take drugs or to end their life, and a decent Human, regardless of credentials, would not allow someone to continue suffering whether or not that meant death.
“people who express a wish to die are either shunted toward suicide prevention or suicide permiss”
Sometimes life is intolerable and heading towards the end anyway: https://jakeseliger.com/2024/01/23/will-things-get-better-suicide-and-the-possibility-of-waiting-to-find-out/