How Legal Theory Might Save the Life of Healthcare Ethics

Abstract

Healthcare ethics consultation has had a place in healthcare for many decades yet the nature of the work is not well understood by many of its critics as well as its defenders. Practicing healthcare ethicists (or PHEs) have been described as compromised and ineffectual; politicised and undemocratic; and their promise to offer sound advice has been deemed irredeemably incoherent in the context of value pluralism. I tease out what is instructive in these critiques and argue that they may be answered by reviewing the conflict of interest literature and by exploring what is distinctive about the PHE role. The most challenging aspect of any PHE’s role is to provide support for the management of so-called hard cases, therefore I introduce a typology of hard cases. Emphasis is placed on what I call (borrowing from the legal theoretical literature) penumbral ethical cases. Legal theory, especially that part of legal theory that deals with what H. L. A. Hart called penumbral cases, can help PHEs (and others) to appreciate the fact that theoretical disagreement need not signal that the field has little to offer, nor need it imply that all answers are equally defensible in the hardest of cases. Finally, I argue that legal theory can provide a jumping-off point for the study of insufficiently explored topics related to PHE professionalization. Legal theorists have long attended to the relationship between law and morality, the problem of obedience in wicked legal systems, and the supposed tension between democracy and the role of an expert judiciary. An appreciation that these debates are not unique to the practice of healthcare ethics may help PHEs to engage critics with a renewed confidence and some fresh approaches to perennial, and hitherto unproductive, arguments.