Is Rawls’ Social Contractarianism a Route to Method with Regard to the Formulation of an Impartial System of Psychiatric Ethics?

Abstract:
John Rawls’ with his seminal ‘A Theory of Justice’ outlined a fascinating update of social contract theory, marked by both a minimum of presuppositions with regard to the ‘Original Position’ and its rejection of utilitarianism. His work has been investigated extensively in relation to theories of politics and social justice in general. In the following essay I will be investigating whether his work is relevant to the more specific area of psychiatric ethics. I will not be investigating medical ethics in general, although I concede that this is a fertile area for further work. This is due to both space constraints and the fact that psychiatric ethics is (with its dilemmas concerning the ethics of enforced treatment, value-laden diagnoses and the problems of implicit societal influence) is a particularly relevant area in which to investigate whether it is possible to formulate a set of impartial guidelines to practice.

1. The Concept of Justice in Medical Ethics In medical ethics the ‘Four Principles’ approach (championed by Beauchamp and Childress1) is tremendously influential. These principles are respectively: beneficence, non-malificence, autonomy and justice. It is extremely important to note that there is no mention of any of the principles superseding or ‘trumping’ any of the others, they are designed to be used in combination with each other, and in the cases where several principles apply, common sense used. As Gillon says: ‘In brief, the four principles plus scope approach claims that whatever your personal philosophy, politics, religion, moral theory or life stance, you will find no difficulty in committing yourself to four prima facie moral principles plus a concern for their scope of application. Moreover these four principles plus attention to their cope of application can be seen to encompass most if not all of the moral issues that arise in health care.’2 Simply put, these principles are based on traditional ideas of medical ethics, the notion of non-malificence for example being based on ‘primum non nocere’. Beneficence relates to acing in the patients’ best interests and autonomy is essentially respect for the views of the patient. Justice is somewhat more complex. It is interesting to note that fewer writers seem to tackle the subject of justice than that of beneficence. This
1 See Principles of Biomedical Ethics, 1989. 2 Gillon, 1994. p xxii.

may well be because, like many words in common use ‘justice’ is easy to use, but extremely difficult to define and conceptualise. One can add adverbs such as ‘procedural or ‘distributive’, to indicate whether the term is being used in a legal or an economic sense, but ‘justice’ itself remains a nebulous concept. Justice in relation to health care is generally seen as ‘synonymous with fairness, and reasonably summarized as the moral obligation to act on the basis of fair adjudication between competing claims’3. However, it is important to note here there is another aspect to the term ‘justice’, when talking of competing claims there is an implication that one has a ‘right’ to have a claim considered and ‘just’ treatment implies treatment that is not in breach of a concept of rights. This wider notion of the concept of justice is where this principle converges with that of respect for autonomy. There is, therefore, a level of overlap between the four principles and treating them as distinct notions is a mistake, an obvious example of this is with the principles of beneficence and non-malificence. To act for the good of the patient and to do no harm to the patient are often one and the same thing, but one can easily envisage situations where these principles are in conflict and must be treated as distinct ideas. So before we even begin to investigate how this principle works in the field of psychiatric ethics we must define exactly what we mean by justice. The ideal place to start is with the work of John Rawls; the author of the most influential work on this subject in recent times. 2. Rawls’ Concept of Justice Rawls proceeded to investigate this concept in his essay ‘Justice as Fairness’ in 1958. A multiplicity of papers followed, which were This was immediately eventually collated and refined to the extent that he could publish his magnum opus4 ‘A Theory or Justice’ in 1973.
3 Ibid. 4 Magnum opus is not an understatement; the book is approximately 280,000 words long. (Readers wanting a quick introduction to his work would be well advised to read Lessnoff

recognised as a seminal work and much exegesis and debate followed. Rawls responded in articles and in revised introductions (unfortunately different introductions in different language editions). Luckily, for the sake of clarity, a significantly revised edition of ‘A Theory of Justice’ was published in 2000 (two years prior to his death) in which he attempted to clarify any confusion and answer criticisms to his ideas. Therefore, I will be taking this book as my main source of reference for his work.5 Rawls revived the notion of a ‘social contract.’6 The term ‘contract’ implies a mutually beneficial and co-operative agreement between two or more parties. This idea of mutual self-interest has been used primarily in political philosophy. The most obvious example being that of Thomas Hobbes who, (in order to justify the right of leadership) postulated that individuals who were not part of a socially co-operative society (in a state of nature in Rousseau’s phrase) with a discrete leader would have less pleasant lives than those who were part of such a system. Individuals thus contracted to obey a leader in exchange for the benefits of their protection and being included in a socially co-operative society. This immediately legitimises a hierarchical society with the implicit idea that even the lowest orders of said society benefit from its formulation and are complicit in its methods. It is easy to see how this idea could not only legitimise a democratic society, but also a feudal one or even a slave based economy. Fortunately, Rawls investigated the idea of a social contract in a much more sophisticated fashion and one that is not merely constrained to political thought. For him, the starting point is not a state of nature, but an ‘original position’ in which the amount of information available to the contractees is very strictly limited to the following:
1990 who provides a helpful much abridged version, however, this is no substitute for the original text.) 5 Henceforth referenced as TJ. 6 This is thought experiment used by many august thinkers, Hobbes and Locke amongst them. For an excellent overview of social contract theory in general see Boucher, D. & Kelly P. 1994.

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‘It is taken for granted that they know the general facts about human society. They understand political affairs and the principles of economic theory; they know the basis of social organization and the laws of human psychology.’7 This is all the information given and this constitutes a ‘veil of ignorance’, through which this thought experiment must be conducted. He assumes throughout that self-interest leads to the making of partisan and thus unjust decisions. In order to formulate an idea of a just political, institution or manner of behaviour one must put aside, or presuppose non-awareness of what part one will play. Therefore, ignorance of gender, race, religion, social position etc. is presupposed. From this position of (albeit contrived) equality principles for just institutions can be outlined. Rawls’ arguments for the type of reasoning that would take place are complex, for example, there is an assumption that the contractees have developed an innate sense of justice due to childhood development8, are free from envy9 and rational10. In light of the ignorance of the parties with regard to their own position and the above personal attributes, Rawls argues that the following principles would be chosen:11 ‘ The first statement of the two principles reads as follows. First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of
7 TJ p 119. 8 Ibid p 430. 9 Ibid p 124. & 464. 10 Ibid p 123. 11 N.B. Due to space constraints I am unable to provide as in-depth analysis of Rawls’ thought as I would like, I can only advise readers to consult the original text. I am aware that criticisms of Rawls’ theoretical position has been made, these generally centre on whether the type of reasoning he describes would actually follow from his suppositions (For example, whether people would be more or less likely to gamble, or follow a maximin method.) However, for the purposes of this essay I am assessing whether a social contractarian notion of justice is applicable to psychiatric ethics; not the theory of justice as a whole.

liberties for others. Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and office open to all. 12 This leads to a very wide notion or the nature of justice as Hare succinctly put it, this means that ‘Rawls founds his theory of justice on an account… of distributive justice. This in turn is founded on a view about procedural justice in the selection of principles.’13 These principles are in Rawls’ terms ‘lexical’ in that they are ordered in such as fashion as that the first principle must be satisfied before the second can be considered.14 With this one can see that Rawls’ is very much influenced by the deontological theories of Kant (who is frequently referenced) as opposed to utilitarian ethics. It is vital that this point is understood in that the notion of a social contract; with its emphasis on reaching a consensus agreement which is hopefully of benefit to the majority, it seems ideally suited to a utilitarian viewpoint. Rawls consistently and clearly rejects this interpretation: ‘… utilitarianism is a teleological theory whereas justice as fairness is not. By definition, then, the latter is a deontological theory, one that does not specify the good independently from the right, or does not interpret the right as maximizing the good.15 It is here that the second principle (sometimes known as the ‘Difference Principle’) comes into play as Lessnoff says: His argument is that inequalities in social distribution are just if and only if they would be acceptable to all in an original position of equality as defined by the veil of ignorance.’16
12 TJ p 53. 13 Hare 1973. p 242. 14 This is actually a contraction of the term ‘lexicographical’, which is used relation to dictionary search. One looks for the first letter in a word, and then the second and so on. If the first letter is absent, there is no point in looking any further. 15 TJ. p 26. 16 Lessnoff 1990. p 18.

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Therefore those in the original position have ‘played safe’ and set a limit to social disadvantage. With this ‘Difference Principle’ Rawls then brings in an element of consequentialism; something normally the purview of utilitarian thought. (This notion of maximizing the benefits of the worst off is known in economics as maximin, a terms which is often used in relation to Rawls). So what are these liberties and equalities that have to be protected, some form of quantification is required here. Scanlon made the point that: ‘In applying principles of distributive justice, for example, we must appeal to some standard of this kind as a ground for measuring the quality or inequality of shares, and similar appeals must be made in defending systems of rights, i.e. institutionally defined prerogatives and protections.’17 The liberties Rawls chooses are pretty standard ones, political liberty, freedom of speech, freedom from arbitrary arrest etc.18 It is in relation to equalities that the idea of ‘ primary social goods’ comes into play. These are the attributes that allow one to achieve one’s life goals. As knowledge of one actual life plan is expressly forbidden for those in the original position, these goods are those that assist in the achievement of most types of life goal. So for example: ‘As a first step, suppose that the basic structure of society distributes certain primary goods, that is, things that every rational man is presumed to want. These goods normally have a use whatever a person’s rational plan of life. For simplicity assume that the chief primary goods at the disposition of society are rights, liberties and opportunities, and income and wealth.’…These are primary social goods. Other primary goods such as health and vigour, intelligence and imagination, are natural goods, although their possession is influenced by the basic structure, they are not directly under its control 19 3. The ‘Just’ Distribution of Resources.
17 Scanlon, 1975. p 655 18 TJ p 11. 19 TJ p 54.

It is interesting that health is mentioned here as a primary good, this leads us discuss whether health care allocation should be subject to the principles of justice. Norman Daniels certainly thought this was feasible and has written consistently on this subject, seeking to apply Rawlsian principles to the distribution of general health care.20 This appears consistent with common sense view that ill health, as something that may very definitely effect ones capacity to achieve life goals should require that distribution of health care resources be congruent with the principles of justice. ‘The basic idea behind the account is that disease and disability interfere with normal functioning, restricting the range of opportunities individual have compared to what they would have were they not ill (that is, compared their ‘fair share’ of the ‘normal opportunity’ range in a given society).21 However, is this taking the argument too far away from Rawls’s individual view? After all he was primarily discussing the formulation of political institutions. Rawls was aware that his work could feasibly be applicable in this area: ‘I shall assume that everyone has physical needs and psychological capacities within the normal range, so that the questions of health care and mental capacity do not arise. Beside prematurely introducing matters that may take us beyond the theory of justice, the consideration of these hard cases can distract our moral perception by leading to think of persons distant from us whose fate arouses pity and anxiety…. Thus the difference principle is to apply to citizens engaged in social co-operation; if the principle fails for this case, it would seem to fail in general.’22 So Rawls therefore took the step of not discussing health care primarily for methodological reasons, as he believed that political situations and institutions should be assessed first. This appears logical in terms of his politically based thesis, but does not take into account how health care is an
20 Daniels 1985. 21 Daniels 1998 p 30. 22 TJ p 84.

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important political issue. Also, he did not preclude the possibility of his work being used in this fashion. 4. The Relevance of Justice to Psychiatric Ethics One of the striking features of social contract theory is that the individuals in the original position are always deemed to be rational. How then can the mentally ill take part in such an understanding? Put bluntly is this a game they simply cannot play? I feel this objection is a mistaken one for two reasons, firstly that it is based on a misunderstanding of social contract theory and secondly that it is based on a misunderstanding of the nature of rationality. The original position in social contract theory is a theoretical one very few writers on the subject have not made this clear. Rawls’ is no exception: It is understood as a purely hypothetical situation characterized so as to lead to a certain conception of justice.’23 Therefore, it must merely be presumed that the people in the original position are rational, not those in society. In fact it would be remiss of the contractees in the original position not to consider the possibility of their being, at certain times of their lives nonrational. For example, it would be irrational in itself for the contractees not to consider the manner in which they would be treated as children (prerationality). As Hare points out in a critical essay on Rawls24 that in order to make this position work we ‘need to swallow the assumption that the veil of ignorance could conceal from the contracting parties the fact that he is a babe in arms’. In relation to the nature of rationality it is important here to distinguish between pure theoretical rationality and a common sense conception of the world. Whether pure rationality is possible is an extremely difficult epistemological problem. Happily, we do not have to tackle this here is that Rawls did not try to utilize this notion:
23 TJ p 11. 24 Hare 1973 p 245.

‘The perspective of eternity is not a perspective from a certain place beyond the world, nor the point of view of a transcendent being; rather it is a certain form of thought and feeling that rational persons can adopt within the world’. ’25 He also and took a very common sense view on the reasoning abilities of people in general: ‘I also suppose that men suffer from various shortcomings of knowledge, thought and judgement. Their knowledge is necessarily incomplete, their powers of reasoning, memory and attention are always limited, and their judgement is likely to be distorted by anxiety, bias, and a preoccupation with their own affairs.’26 It is with this common sense conception that we realize that mental illness does not equal irrationality in the classical sense in that total rationality may not be possible. Also it is a dangerous notion to presume that mental illness automatically equates with non-rationality. This is due to the fact that one of less attractive consequences of the Kantian ideal of the possession of rationality being analogous to the possession of rights, is that one has only to declare a being non-rational to remove any justification of them having inviolable rights. Also, there comes into play the difficult notion of differentiating between types of mental illness and rationality. For example, a phobic patient may be able to very coherently discuss a treatment plan; a schizophrenic may not. It is more consistent in terms of a theory of rights to presume that all individuals have at least the capacity for rational decision-making; if not true rationality. Whilst the ‘original position’ is a hypothetical construct, situations analogous to it do apply. For example, ethics committees meet and possible legislation is consulted upon. It would not be in accordance with the principles of fairness if the mentally ill were precluded from taking part due to a strict standard of rationality that may be anyway unobtainable in everyday life.
25 TJ p 514 26 TJ. p 110.

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‘People want to exercise control over laws and rules that govern their association, either by directly taking part themselves in its affairs or indirectly through representatives with whom they are affiliated by ties of culture and social situation.’27 In relation to this point, it is worth noting that there has been a recent move towards ‘empowerment’, that is patient’s groups being invited to sit on policy decisions. This seems like a laudable move to equality. Unlike, in political system where one can withdraw labour, lobby, or even practise civil disobedience when one feels that one’s rights have been denied or underrepresented patients’ have less resources: you cannot go on strike from being sick. However, a note of caution must be sounded here in that these empowerment strategies may not automatically to bring about ‘just’ decisions. It may be that some patients’ groups are better funded, more supported or simply more vocal than others: injustice is still possible. This point has been noted by Sabin and Daniels: ‘Advocates for specific populations, such as the developmentally disabled or the elderly, tend to fight for their own target rather than allying with other mental health advocates to advance a principle-based argument for equity for the entire mental health sector vis-à-vis other health sectors.’28 In the recent essay quoted above Daniels (together with Sabin) attempted to further apply this these to mental health resource allocation. The work of Rawls is not mentioned, but his influence in that Daniel quotes from his own earlier work on the subject ‘Effective health care prevents, restores, corrects or limits the degree to which disease impedes the ability to form and pursue our conceptions of the good life.’29 Again, we have to ask whether this is stretching the point too far. Is there any reason for believing that the (admittedly totally feasible) idea of physical ill health impacting upon one’s ability to carry out one’s life goals is analogous to a similar aspect caused by mental health? This brings us to an investigation of the difficult distinction between mental and physical
27 TJ p 476 28 Sabin & Daniels 1999 p 389. 29 Daniels 1985.

illness. 5. The Distinction Between Mental and Physical Illness. It is with this distinction that we must now tackle the most troublesome aspect of just allocation of resources and psychiatric ethics. Judgements are made everyday on the basis of clinical need; these judgements are necessarily based on a model of illness that includes asking questions concerning the seriousness, severity, causation and prognosis of any given condition. There is a great deal of disagreement about the nature of mental illness. Is it possible to reach agreement in light of this debate? Here one is immediately struck with the daunting thought that it may not be possible to coherently discuss the just allocation of resources in relation to mental health funding without first carrying out significant work relating to the conceptualisation of the nature of both physical and mental illness. This is a very difficult task, some have attempted to tackle this problem head on and there is some argument as to whether or not they succeeded. The main bone of contention is generally seen as being based in the model of causation for mental illness, for example, the emotive arguments for the societal causation of mental illness made by Thomas Szasz 30 spring to mind. However, there does not even seem to be much agreement over the general causation of any illness and a model of disease. Vis-à-vis mental illness; at the very heart of this issue lies the leviathan of the mind/body problem. There is also an extremely strong case for the view that no one has yet solved this issue and a convincing argument that (due to the terms in which the question is couched) no one ever will. Sabin and Daniels make the valid point that ‘mental health conditions cause substantial impairments of species-typical capacity, equal to or greater than many chronic medical diseases..’31 Even, the most cursory research on this subject bears this point out. For example, in the case of suicide (the most obvious example of mental distress impacting upon
30 Szasz, T. The Myth of Mental Illness. 31 Sabin & Daniels 1999 p 390.

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physical health) it has been found that self-caused death accounts for more fatalities in a year than road traffic accidents.32 Also ‘It has been estimated through retrospective examinations of information about people who have killed themselves, that 70% of recorded suicides are by people suffering from depression.’33 Here they appear to be following the view of Kendall34 that as mental illness places one at a ‘biological disadvantage’ (a phrase originally used by Scadding which he developed in relation to an understanding of mental illness) there is a legitimate reason for treated the notions of physical and mental illness in the same fashion. Although the mind/body debate in relation to the conceptualisation of illness is a fascinating one; and possibly one that will defeat the attempt to apply justice to psychiatric ethics; in the meantime, people are still suffering from physical and mental illness, both of which can have a severe effect on their quality of life, their aspirations, opportunities and ultimately their mortality. Ethical decisions regarding funding, treatment strategies and respect for rights are being made every day, both at a legislative/governmental level and at the coalface of medical practice. Some form of theoretical framework is required. This framework will almost inevitably be imperfect, and doubtless at the deepest metaphysical levels totally incoherent, but this realization does not detract in anyway from the need for its existence. How then are we to proceed? The most obvious answer would be to set aside or ‘bracket’ the problem. It is relatively simple to see how this might work in small-scale research studies. For example, one could take a group of disadvantaged individuals (those below the economically assessed poverty line say) and give them the opportunity to attend access to employment courses and supported work placements. Then simple research as to the frequency with which they have accessed health care services, both before and after this intervention,
32 Mental Health Foundation Statistics, 1999. 33 Ibid. 34 Kendall 1975.

should be carried out. Hopefully, these people will be requiring services less. This may be because the extra income they have acquired has assisted them to move out of sub-standard, overcrowded and generally unhealthy accommodation or it may be that a depressive episode has been prevented, or at least ameliorated, because of the increased opportunities for socialization and the building of support networks that employment brings. On a purely economic level, why these people have not accessed health care services is irrelevant; as a general rule of thumb preventative medication is a great deal cheaper than curative medicine; money will have been saved that can be spent on other treatments. This policy would be value-free in the easiest sense: that of simply not asking any difficult questions.35 An assessment could be made whether or not this policy works on a practical level (whether or not it saves money and/or increases wellbeing) and a decision to continue or discontinue the policy can then be made. This decision is thus different from one based on the distinction being made between physical and mental illness. In fact to make that distinction can too readily lead to problems. This is highlighted clearly by a recent situation in the American state of Oregon. Due to a health care funding crises, drastic cuts were proposed to the Medicaid budget (the budget used for the treatment of those unable to afford to pay for their own care) and these cuts were very much based on lowering mental health costs. This caused one prominent American psychiatrist to decry the scenario whereby a patient can obtain a prescription for skin cream, but would be prevented from receiving a prescription for the anti-schizophrenia drugs that they may have been taking for many years.36 There are admittedly problems with treating mental illness in the same fashion as physical illness (overinvolvement of the medical profession and society in general in matters of a personal and social nature, say), but there are also dangers inherent in 35 Where this breaks down is in large scale situations where vast longitudinal studies
would be required, these are expensive, time consuming, and due to the high level of possible confounding variables in complicated social research and sheer levels of information, liable to produce contradictory and unclear results. 36 Applebaum 2003.

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treating mental illness in a disparate fashion from physical illness. Now is with this mention of discontinuance of treatment that things become more difficult: it is always very easy to provide arguments for increased allocation of resources in a health care setting. There are people who are in desperate need of medical treatment. However, resources are always finite and difficult decisions concerning priority have to be made. What implications would the bracketing of the mental/physical distinction have when resources have to be denied? To look at these implications it might be helpful to consider some concrete examples: Patient A Is suffering from an advanced cancer. Her condition has not responded to treatment. There is a possibility of a further course of chemotherapy being carried out. The chances of this treatment leading to remission are extremely minimal and there is a very real probability that this treatment will only serve to reduce the quality of life that she has left remaining to her. Her relatives are of the opinion that she should undertake treatment even though her chances of survival are extremely slim. Patient A herself has accepted her condition and wishes to move onto palliative care. In this case, no further treatment would be carried out. To a certain level all four principles come into play in this decision. Further treatment is unlikely to do her any good (beneficence) in fact, treatment is likely to reduce her quality of life (non-malificence), respect for the patients’ viewpoint is vital here and (whilst sympathizing with the viewpoint of her relatives) takes precedence (autonomy). patient with a better prognosis (justice). Patient B Has a long history of admission into mental institutions for severe Also, in terms of cold, hard economics, the treatment is expensive and could be put to good use on a

depression, in view of the absence of any concrete triggers for his depressive episodes, his lack of response to anti-depressive medication and therapy it appears highly likely that his diagnosis is that of depressive personality disorder. He has made several unsuccessful suicide attempts in the past and his admissions to mental institutions have all been involuntary ones at the behest of his relatives. During his last bout of depression the decision was taken to administer ECT (electro-convulsive therapy) against his express wishes. He reported symptoms of memory loss and confusion following this treatment, he has also noted side effects from his antidepressant medication and considers therapy a waste of time. He has recently been readmitted. He has firmly stated a wish to be able to leave hospital, to have no further treatment, and to be left alone to commit suicide if he feels he wishes to. Needless to say his relatives are very much against this course of action and wish for him to remain and receive further drug treatment and ECT. It is here that (with the bracketing of the issue of the causation of mental and physical illness) that a decision has to be made whether there is any qualitative difference between the two cases. Personally, I do not feel that there is. Both cases are unresponsive to treatment, at risk of harm from further treatment, expressing a wish not to receive it and using resources that could be more efficiently reallocated. With the understanding that mental illness can have a severe impact on physical health, just as general physical illness can, there also comes the realization that not everyone can be saved. This is a difficult lesson that all doctors rightly struggle with, but there is reason to believe that this also applies in psychiatric care. It appears then that Sabin and Daniels makes a good case that it is merited to discuss the notion of justice when evaluating mental health resources. So what of the wider concept of justice that includes the notion of rights and thus links with that of respect for autonomy. Is there any room for this in psychiatric ethics? I will seek to show there is via concrete examples. 6. Justice as Opposed to Benevolence: Two Case Studies 15

Benevolence is the principle most often cited when discussing strategies for the enforced treatment of the mentally ill. This is evidenced as follows: Infants, irrationally suicidal individuals, and drug dependant patients are an example. The behaviour of non-autonomous may be validly controlled on grounds of beneficence in order to protect them from harms that might result from their behaviour.37 At first sight this seems to be a logical manner to proceed; one acts on in accordance with the principle of beneficence in relation to children who are pre-rational, why should this not apply with non-rationality? I feel this solution is too simplistic, ignores the problem of paternalism and does not incorporate any checks and balances with regard to prejudices on the part of the practitioner. I will attempt to illustrate this point via some examples. Mr AB Mr A.B., was brought to the casualty department of his local hospital by his wife complaining of burning pains in his face and head. He had a letter from his general practitioner saying that she believed Mr A.B. had become seriously depressed. He had had episodes of depression in the past and during one of these had made a suffer and nearly fatal suicide attempt. He showed what are called biological symptoms of depression – he had been waking early and had lost weight. He had refused treatment for depression but had agreed to come to casualty to be seen for his head and facial pains. Mr A.B. was initially very guarded in what he said, but eventually admitted that he believed that he had advanced brain cancer. After a careful neurological examination, the psychiatrist explained to Mr A.B. that there was no sign of this, but Mr A.B. remained adamant. The psychiatrist then saw Mrs A.B. who said that Mr A.B. was behaving as he done before his previous suicide attempt. As Mr A.B. still insisted that he would not stay in hospital, it seemed to everyone at this stage that there was not option but to
37 Beauchamp and Childress 1989.

admit him under the Mental Health Act as in involuntary patient. He accordingly came into the ward and over a period of eight weeks made a full recovery on anti-depressant therapy.38 This appears credible, but there is a tautological element here in that a clinical decision made against the stated wishes of an individual will often be proved as ‘correct’ (especially in a psychiatric setting) by the simple fact that the patient agrees with the decision after treatment. This positive reinforcement of a decision seems unproblematic, however, there is a danger, pointed out by Hare: ‘But it is terribly easy to stray across the boundary between prognosis, on which perhaps he can claim authority, and judgements of value about possible future states of the patient, on which he cannot.’39 Rawls was aware that at (an admittedly very crude level) this can be a justification unethical coercion: ‘Paternalistic principles are a protection against our own irrationality and must not be interpreted to license assaults on one’s convictions and character by any means so long as these offer the prospect of securing consent later on.’40 I will illustrate this example via a hypothetical example of proxy decisionmaking: Child C Is born with a heart abnormality that severely affects her quality of life and, without a transplant, will undoubtedly lead to her early death in childhood. Child C’s parents agree on her behalf that a) surgery be carried out to correct the problem when a donor is found. b) in view of the fact that there is a risk of death due to complications that she be baptised before the operation in order that, should she die, her passage to heaven will be unproblematic.
38 This example is a truncated version of one used by Fulford 1989. 39 Hare 1993. 40 TJ p 220

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Happily, the operation was a complete success, Child C reaches adulthood and now completes marathons as a hobby. Unhappily for her devout parents, she has also grown up to be atheist. Decision a) she considers correct and is grateful for her extended life span and health. Decision b) she considers an infringement of her right to freedom of religion (or lack thereof). Her parents took both decisions with what they considered to be in their child’s best interest at heart and therefore were working under the beneficence principle, so what has gone wrong? At first sight, it appears that they have made the mistake of making a judgement (b) that was heavily value laden, but this ignores that fact that both decisions taken were value laden. With decision (a) value judgements were made. These were that transplant surgery is morally unproblematic, that the degree of risk during surgery was acceptable in the light of possible future gains to both quality and duration of life, etc. When this is given, it seems unlikely that one can prevent the values of the proxy decision maker from infringing on the values of the patient. It may be that Rawls’ theory of justice is helpful here. In treatment one could envisage a hypothetical ‘original position’ and work from there. In relation to Mr AB, an individual in the original position would not be able to assess whether he was Mr AB, his doctor or his relatives. However, he would be able to make the judgement that good health is preferable to bad health in that one is more likely to be able to fulfil one’s life goals when healthy. (In Mr AB’s case this is an extremely pressing matter as suicide is being considered; fulfilling life goals is not an issue for the dead.) He would be able to consider that suicide would cause distress to Mr AB’s relatives, and unnecessary stress should rationally be avoided. He would know enough of the laws of psychology to be aware of the fact that verbal persuasion alone is often not enough in the face of a strongly held delusion. Therefore, enforced treatment would appear justified. beneficence. Now this decision is exactly the same as the one that would be reached via the principle of

‘Now the combination of mutual disinterest and the veil of ignorance achieves much the same purpose as benevolence.’41 Here it becomes tempting to ask ‘So why bother with justice?’ The quick answer here is that the decisions reached via beneficence are often tainted with paternalism; something that continually dogs psychiatric ethics. Whilst the possibility of paternalism is not precluded by social contract theory, Rawls’ assertion that in justice that the right is prior to the good makes this less of an issue: ‘For the self is prior to the ends which are affirmed by it; even a dominant end must be chosen from among numerous possibilities. There is no way to get beyond deliberative rationality. We should therefore reverse the relation between the right and the good proposed by teleological theories and see the right as prior. The moral theory is then developed by working in the opposite direction.’42 Also: ‘The conclusion once again is that arguments for restricting liberty proceed from the principles of liberty itself. To some degree anyway the priority of liberty carries over to partial compliance theory… the greater good of some has not been balanced against the lesser good of others … rather the appeal has been to the common good in the form of the basic equal liberties of the representative citizen,’43

So what of Child C? Again, from a contractarian point of view the rational decisions can be made that good health is preferably to bad health and the risk of surgery is outweighed by the possibility of a much extended life span and increased quality of life. In relation to the question of transplantation, in the original position it would be considered a good thing for people to volunteer to denote their organs after death (or in the case of children for their guardians to make that decision) in that this procedure makes use of material that is no longer any use to them, has no effect on their life and benefits the least advantaged therefore decision (a) is validated here. So what of decision (b) regarding baptism? Here the
41 TJ p128. 42 TJ p 491 43 TJ p 213

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decision is not validated for the simple reason that in the original position, the contractees are unaware of their religious affiliations. They are aware of the nature of religion and the fact that they may have religious views, from this the assessment is made that it is rational to protect freedom of religion as one does not know what religion they will be. (As long as this decision is compatible with the notion of equal liberty for all - intolerant religions would not be tolerated) I am not saying here that the medical profession should meddle in the religious views of their patients and their families, I am merely using this example to illustrate how applying the principles of beneficence and justice can lead to markedly different decisions that are not merely concerned the distribution of resources. 7. Conclusion. The ‘Four Principles’ approach is a method that has enormous influence regarding how an ethical problem in a medical setting is conceived. These principles have been specifically formulated for their applicability to medical ethics and I believe that they are in invaluable tool in practice. However problems arise when assessing which principles need to be brought into play, and whether or not any lexicographical criteria must be applied between them. The principle of ‘justice’ and the meaning of the word in general is extremely difficult to conceptualise and define. This may be why the principle of justice appears to receive less attention than that of beneficence, for example. This lack of attention is particularly marked in the field of psychiatric ethics. Doubtless part of this is due to the assumption that the idea of justice is related only to the distribution of finite resources and treatment; questions about who should take priority in transplant surgery seem far removed from questions regarding the rights of the mentally ill. At a purely intuitive level this distinction appears a valid one, distributive justice is often concentrated upon those with most need and an individual at risk of renal failure appears to have more need than a physically healthy agoraphobic: one patient risks death, the other merely

has to do their shopping online.

What this (admittedly somewhat trite)

example misses is the understanding that mental illness, in terms of selfharming behaviours, (for example, substance abuse, cutting, food deprivation and suicidal attempts) has a direct effect on physical health and mortality. Also, as with physical illness, it has an effect on the employment, relationships, aspirations and general quality of life of the patient. Daniels, therefore makes a good case for the application of Rawls’ difference principle being merited in terms of mental health treatment, it will necessarily be the case that those patients at immediate risk of the most significant physical harm will be prioritised, but with the bracketing of the issue of the mental/physical distinction, these patients may very well turn out to be the mentally ill. As Daniels admits though, there is a caveat here in that, macro-funding decisions may be problematic as health care spending is organized into discrete budgets and money for social engineering projects that may improve overall health is limited. 44 In relation to an understanding of respect for rights (where the principle of justice merges with that of autonomy) social contract theory is again applicable. The difference between making a decision to enforce treatment on an individual due to beneficent motivations and the decision to enforce treatment due to an understanding that this is what a rational patient in the original position would demand may be practically and logistically zero: enforced treatment is still required. However, the conceptual difference is important and it is easy to conceive circumstances where the adoption of these two different principles would lead to markedly different conclusions. For example, the principle of justice would be more demanding and stringent in many situations, for example, the use of mentally ill patients in research would require that said research would benefit the worse off (a.k.a. them) in a direct and feasible fashion. Utilitarian appeals to the general good; doctors needing subjects on which to train; the vague hope of cure for illness etc. will not suffice as a justification for the use of patients in research who have already had their liberty denied them. These patients’
44 Sabin and Daniels 1999 p 391.

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notion of consent may be significantly compromised, also on a purely practical level, their consent may merely be due to a desire to quicken their release from a mental institution. Their response may therefore be geared more to pleasing the practitioner than giving accurate responses. While it would be in their interests for their practitioner to be well trained and for their illness to be researched it is not in their interests that said practitioner take part in theoretically flawed research merely to become qualified and earn a higher salary. A contractarian conceptualisation of the aims, possible success and possible benefits to all parties would hopefully prevent injustice occurring. As Rawls’ says: ‘Thus a good doctor is one who has the skills and abilities that it is rational for his patients to want in a doctor. The skills and abilities are the doctor’s, the interest in the restoration of health by which they are assessed are the patient’s.45 Throughout this essay I have attempted to investigate whether justice as the most abstract and, by definition, the most unbiased of the four principles could be used as a tool to attain impartiality in psychiatric ethics. (Whether true impartiality is possible in any situation is a difficult problem, and one I have purposely set aside.) Of course, value judgements will be made in any ethical contemplation, and there will be value judgements made in a contractarian position: if there are not then no judgements will be made at all. However, I have been looking to a method for impartial not value free decision-making. I must conclude that justice alone may well not be sufficient for drawing up guidelines in psychiatric ethics, but I believe that it is an underused method, and a fertile ground for further research. This research can be related to both legislative decision-making (funding at a macro level) and everyday clinical situations. The use of a ‘Theory of Justice’ in psychiatric ethics might also to help to reduce criticism of practitioners taking on a needlessly paternalistic stance. The whole question of the possibility of impartiality is difficult to tackle in a short essay, but I hope that I have
45 TJ p 354

demonstrated that an in-depth understanding of the principles of justice would be a promising place in which to start.

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