Ethicists, Hold Your Horses

By Fleur Jongepier (Assistant Professor of (Digital) Ethics at Radboud University Nijmegen) and Karin Jongsma (Assistant Professor of Bioethics at University Medical Center Utrecht). This article is loosely based on a Dutch article which previously appeared on the philosophy weblog Bij Nader Inzien. Translation by Radboud Recharge and the authors.

The English version of this article was published on Open for Debate.If intensive care beds or ventilators run out, who should be saved? And how should such decisions be morally justified? These are horrible, indeed impossible, decisions that clinicians currently face, or may be confronted with in the (near) future. In Italy, clinicians were "weeping in the hospital hallways because of the choices they were going to have to make".

These are also questions that ethicists have, for decades, thought long and hard about.It seems natural - so natural it almost goes without saying - for ethicists to engage right now, and to start a public debate about the moral justifications of the possible triage options. And they have. Julian Savulescu and Dominic Wilkinson, for instance, recently wrote an article entitled 'Who gets the ventilator in the coronavirus pandemic?' They outline five different approaches, but really only take the utilitarian approach seriously; in other words, that a clinician should act such as to save the greatest number.

On the utilitarian view, if "one person, Jim, has a 90 per cent chance and another, Jock, has a 10 per cent chance, you should use your ventilator for Jim." We can call them Jim and Jock of course, but let's not forget that Jim typically represents the elderly or people with illnesses or disabilities, whereas Jock represent the young and fit.Similarly, in the Dutch context, colleagues Marcel Verweij and Roland Pierik recently stirred up debate on the opinion pages of the national newspaper.

They proposed that in the event of extreme scarcity in the intensive care unit, priority should be given to younger corona patients. Verweij and Pierik are by no means the only ones defending this view. What's the reasoning behind this view?There are basically two arguments.

First, young people generally recover faster, which means that giving priority to younger people will allow one to treat more people overall, thereby increasing the chance to save more lives. Verweij and Pierik provide a second, much more controversial, argument, namely, that the death of a young person involves a "much greater loss". Why? Because an 80-year-old will have already "had the chance to live their life".

This is not an unfamiliar standpoint within ethics - it's known as the "fair innings principle" - but this doesn't mean it's uncontroversial. Here we are not principally concerned with the fair innings principle itself (though we have serious concerns on that front, too), but more fundamentally about whether now is the right time to have a public debate about whether it's morally justifiable to sacrifice the elderly to save more lives whilst the pandemic is raging on.An impossible burdenIn response to alarmed reactions by some readers, Verweij and Pierik wrote a second article, motivating their reason for submitting their article to the national newspaper.

They give two reasons: solidarity and democratic, public deliberation. We believe both arguments are insufficient reasons, in fact we think on the grounds of solidarity and democracy one can come to the opposite conclusion, that we shouldn't have a public debate about the ethical foundations of triage decisions right now.Let's start with the argument from solidarity.

We should have a public debate about the ethics of triage decisions because doing so is a way of expressing solidarity with clinicians. Verweij and Pierik write: "It's an almost unbearable responsibility to have to decide who should and should not be offered a chance of survival. Solidarity means that we should collectively bear the burden of the crisis as much as possible.

"Some have recently suggested to introduce a "triage committee" to remove "the weight of these choices from any one individual, spreading the burden among all members of the committee". Such a committee would also enable physicians and nurses to remain the primary caretaker and "fiduciary advocates" rather than simultaneously being the one having to decide whether their lives are to be saved at all, imposing on them an impossible double-role.A need for moral reassurance?But can ethicists - indeed, ethical theory - also help relieve the burden? In a sense, it feels right to stand firmly behind the clinicians, who are now making impossible decisions, and to tell them: You're doing okay, your choices are ethically justifiable.

But it is not evident that clinicians are now actually helped by moral reassurances or for ethicists to 'have their back'. It is also not necessarily a good idea to pull clinicians into a reflective, deliberative ethical mode right now. This could slow them down or result in confusion and might actually increase rather than reduce the burden on them.

Clinicians already have had their training and learned the moral theory; now is the time to act.A potential explanation for why ethicists are submitting op eds to the newspapers about triage decisions is that academic questions have become real life questions, plus academics are being told from every angle they need to get out of their ivory towers. As Verweij and Pierik write: "For us as ethicists, the question whose lives should be saved is obviously an interesting dilemma that we often discuss in our teaching and articles.

"Indeed, examples of triage decisions are widely used in education as thought experiments. But real-life triage is a different matter altogether. We firmly believe triage decisions are in safe hands with clinical (support) teams, and, in fact, not broaching the issue of moral justifications of triage decisions could now actually express more solidarity and support with clinicians than defending a specific moral stance.

A more practical point is that clinicians in all likelihood will neither have the time nor the energy to read the opinion pages. It is therefore questionable whether one could reach them with articles in the newspaper, even if one would want to.You might say: in spite of the fact that clinicians indeed have had 'the theory' and in spite of the fact that we place great trust their decision-making capacities, actually having to make such decisions is another story.

And this must indeed be acknowledged.

The burden on clinicians is inconceivably heavy.Given the current burden on clinicians, many clinicians would perhaps welcome, or even explicitly request, guidance from ethicists. So here we want to make clear that this is not what we are against.

Ethicists can and do contribute to ongoing triage conversations with physicians, respiratory therapists, nurses, and critical care specialists. To an important extent, then, a public debate which includes ethicists is already ongoing. What's less clear is just how 'public' a 'public debate' must be (more on this below).

In any case, ethicists can help out - and express solidarity with - clinicians in other ways - more fruitful ways, we think - than defending utilitarianism or the fair innings principle in the media.Solidarity: a double-edged swordAs we've seen, one argument to have this public debate now is that this would express solidarity with clinicians. We've suggested that it is not evident that this would actually benefit them.

Even if it did, though, an appeal to solidarity cuts both ways. After all, many members of the public were startled and hurt by the articles currently going around. That this has created unrest and real damage to some individuals was foreseeable.

It was foreseeable that the message that the lives of some people would be considered less worthy than others' would linger primarily in the minds of the elderly, the already ill or people with disabilities.Obviously, the idea that some lives are more worthy than others is not the explicit or intended message of the articles which defend utilitarian or fair innings-based ways of making triage decisions. In the philosophy of language, however, a useful distinction is made between 'saying' and 'conveying'.

You can say something explicitly, but you can also implicitly convey a message, be it intentionally or not. It is understandable that some elderly, ill, or vulnerable readers interpreted utilitarian and fair innings-based articles in ways that had not been explicitly said. For instance, it's understandable that many got the message that their lives were of lesser worth or that the elderly 'have already had their chance'.

These messages were, no doubt, not meant to be conveyed. But that they were conveyed all the same was foreseeable.Here's the thing: an ethicist should not only reflect on moral rules, norms, and principles, and how they (fail to) apply to the real world, but also on what communicating certain moral views can bring about in the lives and experiences of human beings.

How and when to communicate and reflect on ethical principles is an important part of ethics itself.Tragedy and the limits of ethicsAnother possible unintentional message of the article was that the aforementioned priority principle that Verweij and Pierik defended could be interpreted as a bona fide or 'sound' ethical principle. It is crucial to emphasise that triages in intensive care in crisis situations are examples of tragedy.

Tragedies pose a challenge to almost all moral theories and principles (see also this piece written by Schaubroeck on the BNI website (in Dutch) and this blog from John Danaher).We generally consider moral theories, beliefs, and principles (such as justice, human dignity, non-discrimination, and so on) to be 'admirable' or the sorts of things we would proudly or wholeheartedly support. But this works differently in tragic situations.

When a younger person is given priority and an older person dies as a result, we would not say that the underlying decision and principle was 'admirable'. We would not proudly stand by the ethical justification for such a decision. The choice involves choosing the lesser of two unspeakable evils; it was a tragic decision.

Authors writing on triage decisions are well aware of this, of course. But the very act of defending, say, utilitarianism or the fair innings principle in public in times of crisis, and arguing what makes the approach justified, may have nevertheless convey a different message to some readers. It may convey that it is morally 'okay' to sacrifice the old or vulnerable in order to save the young.

It's not.

Given the likelihood that articles in which ethicists say how triage decisions ought to be made on the basis of moral theories and principles fails to reach or genuinely help its target audience (clinicians) and that another important audience (members of the general public) are likely to be harmed by its content, it's better if ethicists would not publish their takes on triage at this moment. Precisely for reasons of solidarity.A democratic discussionOne might rightly worry: isn't what we are proposing here anti-democratic? Shouldn't it be precisely part of a well-functioning democracy to discuss vital decisions, such as priority rules on intensive care units? Given the value of democracy and its connection to open debate, it seems discussing these matters with the general public is precisely what must be done. Even if people are startled, even harmed, as a result.

We agree that having societal debates is vital. We even agree that we need to have an open conversation about the possible moral justifications of triage decisions. However, the 'argument from democracy', as we might call it, is not an argument for having that conversation now.

Our worry about trying to aim for a 'public debate' where triage decisions are concerned, is that it will be neither a 'debate' nor strictly speaking 'societal'. After all, only about 50% of the (Dutch) population reads the newspaper. In those percentages, men are generally overrepresented and migrants are underrepresented.

So, the public reached through (online) articles may well be ill-representing society at large. As for having a 'debate': an (online) article does not constitute a debate (not the sort of debate we need to have, anyway). It's one directional. This is particularly problematic when ethicists make it seem as if the theory or principle they defend (utilitarianism or the fair innings principle, say) is the moral principle.

It doesn't need to be one-directional, and no doubt the ethicists who are engaging precisely hope and aim for readers to engage, too. And sure, readers could submit a two hundred-word reply, or say something in the comment section. But that's not nearly enough. Also, let's not forget these are likely to be individuals with time and energy on their hands, that is, probably not the ones ill or stressed out.

That is: those affected most.

If we want a genuinely public debate, we need to give the public a genuine voice. We need more than a handful of articles by ethicists to which citizens can respond in the comment sections. Having a proper public conversation is vital, but doing so now is, we fear, neither desirable nor possible.

Against democracy?A recent statement from the Nuffield Council on Bioethics deals explicitly with questions concerning democratic governance in relation to COVID-19. The authors express serious concerns about the situation in the UK - and situations elsewhere are probably not dissimilar - that, right now, decisions are being made that "go to the very heart of what governments are there to do: to protect the freedom and well-being of their people". Yet public information is "limited and obscure" and no proper public discourse on any of the vital ethical-political questions has gotten off the ground.

They plead for greater accountability and transparency, and ask the government to get public deliberation off the ground. We are "all in it together, we all need to know and all need to have a voice".The present article might be interpreted as being "against" initiatives like these.

So we want to be clear: we very much share the overall pro-transparency and pro-democratic sentiment. But respecting and promoting transparency and democracy can be done in different ways. There's a difference, to begin, between accountability and transparency (we all need to know) on the one hand and public discourse (we all need to have voice), on the other.

We wholeheartedly agree with the first point. It's crucial that governments make explicit the decisions they are making and make explicit their reasons (and empirical evidence, where available) for making those decisions.As for the second point: yes, we do "all need to have a voice".

The question is: do we all have a voice? Are our voices at the same decibels? Do we all have a voice that will actually be heard? If we don't, then it may not be the best idea to engage in public discourse now but rather do so later, once we've had more time to also think about and are actually able to guarantee the diversity and inclusivity of the debate we need to have. Public debates are difficult, slow, and complex and it is unlikely that a consensus or otherwise strong supported triage criterion will be the result from public consultation any time soon.The alternative is a quasi-public debate, in which some members of the public are represented, and others (those most affected, we fear) aren't.

This is perhaps the worse of the two options. The combination of "public debate" and "now" form an unhappy couple. Doing it properly later may be better than doing it poorly and half-heartedly now.

If only because three or four op-eds and a half-baked survey filled in by healthy, abled, and childless individuals might create the illusion that we've all had a say when in fact we haven't at all.Being realistic or a coward?Our standpoint relates to an important distinction in political philosophy between ideal theory and non-ideal theory. Ideally, we agree: we need to have a public debate, we need to have it now, and we need to have it with all of us.

But sometimes, pursuing the ideal can have counterproductive outcomes, and pursuing a non-ideal course of action (having the debate later), is to be preferred. Precisely because, paradoxically, the non-ideal course of action enables us to get closer to the ideal of all of us having a voice, and getting an actual chance of being heard.Maybe we're too pessimistic. When defending non-ideal solutions, one always risks slipping into cowardice.

As the authors of the Nuffic statement acknowledge, maybe there is "no capacity now to open up a wider public discourse", which is what we fear, but they also add, quite rightly, that "capacity should not be an excuse". The solution must clearly then be not to accept the situation but to try and change the capacity. But can we? The real question is whether we can really get a public debate going that is legitimate and isn't going to harm more than it helps.

We need to think about the empirical chances of public deliberation actually being successful. Because if the public is not ready, or able, or willing to engage in public deliberation, or if it turns out only a privileged subset of the public is, then that might be a reason not to do it now, in spite of the fact that, ideally, we should all be deliberating about this together, right now.Non-ideal circumstancesAnother obvious reason for not starting a societal debate now is that emotions are running high, there is a great deal of unrest, fear, misunderstanding and uncertainty.

As far as we can see, there is now a need for articles about which specific action we should be taking in daily life (What are we supposed to do exactly when someone in our household becomes sick? Should we be making DIY masks or not?).Let's also not forget many members of the general public are currently being invaded by tent-building, pet-hunting offspring with Nutella-smeared faces. They may well have other things on their minds than the moral justification of implicit ethical principles for triage at the intensive care unit.

They might well want to engage in public deliberation, but simply can't, at this moment. These are not ideal circumstances for a complex societal debate about the principles of who should be saved in these extraordinary times. We believe a public discussion would be more effective, less aggressive, and more inclusive, if we have it when the worst of this is over.

We contend therefore that, precisely for reasons of democratic legitimacy, now is not the time.For the record: despite the title of this blog, there is plenty of constructive work that ethicists could do. For example, they could say something sensible about the currently emerging culture of 'shaming' and hostility; the difference between being alone and being lonely; how can we ensure ethically sound clinical research in times of crisis; how we should feel about the enormous influence of companies who sell ventilators and choose whom (not) to sell it to; how we should be dealing with digital social contact (and medical consultations) and how this differs or does not differ from face-to-face meetings.

We are here specifically worried about whether ethicists can fulfil a constructive role when it comes to publicly defending certain moral theories or principles to justify ways of making triage decisions on intensive care units, or whether it's better to place our trust in clinicians and/or triage committees.The ethicist's role in times of crisisBut isn't this an ethicist's job? Isn't it their responsibility to publicly discuss uncomfortable moral principles and considerations, also in crisis situations? We realise that our standpoint is quite controversial, but we would say: no, not necessarily.Indeed, it is the ethicist's job to reflect on the ethical challenges and issues in society.

Where possible, it is also their job to share their expertise with doctors when they undergo crisis training and learn about triage decision-making. At the moment, this is already going on. It's not like ethicists are not consulted or asked for their views - the contrary. But it's not enough for an ethicist to share their knowledge of how certain moral theories or principles are understood in ongoing debates in applied ethics.

In their expert capacity, their responsibility also extends to taking into account what the articulation and defence of certain moral principles may lead to. This includes unintended messages. Especially utilitarians, who appear to have the loudest voice in current triage discussions, have every reason to include this factor in their calculations.Isn't it strange that we are engaging in public debate in order to say we shouldn't be having this public debate? Yes, it's strange, but these are strange times.

For this reason, we ultimately decided that we would not send a (much) shorter version of this article to the newspaper, since that would be hypocritical. We decided it may be right to engage on a more reflective platform, without scarcity, and that allows for longreads. Though the irony of it all does not escape us.

We believe that now that there are actually real ethical dilemmas, this is, paradoxically perhaps, the time for ethicists to hold their horses. We should now be relying on the expertise - and by this we specifically also mean the moral expertise - of clinicians and their support teams, who face incredibly difficult decisions at the intensive care unit. We believe that this trust is more supportive towards clinicians than a reflectively substantiated ethical article that, no matter which way you look at it, raises questions about the decisions clinicians have to make.

Applied ethicists are, ideally, good at ethically reflecting on 'real life' situations. Clinicians are good at acting in 'real life' situations.To put it simply: fellow ethicists, now is not the time.


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