Equity and Distributive Justice in Health and Risk Message Design and Processing
Summary and Keywords
The medical encounter is one of the most important channels of communication between the patient and his or her caretaker. Apart from its therapeutic effect, the medical encounter serves to convey information about a symptom or disease; construct a diagnosis and give information about the expected course of a disease (“prognosis”); and discuss treatment plans, including risks and benefits. The centrality of the medical encounter makes ethical considerations fundamental, not only within the clinical context but also within the broader context of health promotion. Furthermore, since the medical encounter is characterized by asymmetry and dependence, it can create problems of abuse of power or subordination. The current dominant liberal bioethical approach tends not to take into account the power relations within the medical encounter, or the social context in which the medical encounter takes place. It is in this sense that a republican egalitarian approach to bioethics can be of use. Instead of traditional bioethics emphasis on the individual and on personal autonomy, a radical egalitarian health rights approach will stress the importance of social structures, and the need for a different institutional framework that works toward making a universal right to health possible. Such an approach also emphasizes the centrality of politics in building adequate institutions and in modifying those social structures that cause inequities in health. These considerations have important consequences on how the medical encounter should be constructed, such as in the case of conveying risk and disclosing medical errors.
There are several channels of communication between doctors and patients, but the central one is the medical encounter. The importance of the doctor–patient encounter in terms of therapeutic impact has been known for centuries. Research has shown not only that a good rapport is important in order to engage patients in following treatment (especially so in chronic conditions), but that the encounter has, in itself, therapeutic effects (Ishikawa, Hashimoto, & Kiuchi, 2013; Matusitz & Spear, 2014; Peck & Denney, 2012; Verlinde, De Laender, De Maesschalck, Deveugele, & Willems, 2012). A meta-analysis of the literature shows that in the last two decades, doctor–patient communication has become a more important topic in the research on quality of care (Verlinde et al., 2012), so much so, that in the last years of medical school, curricula now emphasize developing medical students’ interpersonal communicational skills. The centrality of the medical encounter makes ethical considerations fundamental. Furthermore, the medical encounter is characterized by asymmetry and dependence: The doctor has more knowledge, and the patient is in need. Even in an era in which the paternalistic approach is much less common, this can create problems of abuse of power or subordination. This asymmetry and dependence is even more pronounced when dealing with risk communication, when patients are exposed to information of great significance for them, in either abstract-sounding or statistical terms.
The dominant approach to medical ethics, in general, and to the medical encounter in particular, is the liberal one, based on the four principles of autonomy, non-maleficence, beneficence, and justice, where the order is one of lexical priority (Beauchamp & Childress, 2009). The main problem of the dominant liberal bioethical approach is that it tends not to take power within the medical encounter into account or the social context in which the medical encounter takes place. It is in this sense that a republican egalitarian approach to bioethics can be of use. The present article will present the central principles guiding such an approach. It will begin by discussing the medical encounter as the central channel for doctor–patient communication. In the second section it will present the current main ethical approaches to the medical encounter; the third will discuss a republican egalitarian alternative; and finally, we will discuss the example of dealing with medical errors, including apologizing, in the medical encounter.
The Medical Encounter
The medical encounter has long been described as the keystone of care (Adams et al., 2012). The medical encounter is all about communication. It entails doctors talking with patients and patients talking with doctors (Peck & Denney, 2012). The encounter has three primary functions: gathering information; communicating information, which today includes discussion about risks; and developing and maintaining a therapeutic relationship (Peck & Denney, 2012). The doctor–patient relationship that takes place in the medical encounter is central not only as an instrument to arrive to a better diagnosis and treatment plan and behavioral changes related to possible risks, but has a therapeutic value in itself. It is the primary medium of health care (Peck & Denney 2012; Verlinde et al., 2012). This is especially so in the past few decades, since the development of patient-centered care. Communication is a central component of patient-centered care and has been shown to improve outcomes such as psychosocial adjustment and adherence to treatment (Ishikawa et al., 2013; Matusitz & Spear, 2014; Verlinde et al., 2012).
The medical encounter, however, is a complex case, since the patient-centered situation aimed mainly to increase therapeutic efficacy, and to enable discussion of possible risks that require behavioral changes and/or therapeutic decisions, is an ideal. In fact, the medical encounter is a complex interaction, characterized by asymmetry between doctor and patient: The doctor has more information, and the patient is in need. The medical encounter is also a place characterized by power relations: first, since the inherent asymmetry of the medical encounter may translate into power of the physician over the patient; second, since the encounter is also a place that generates power to treat, to improve the patient’s health, and well-being; and third, because even though physicians tend to present the medical encounter as a neutral place isolated from the external world, research shows that social structures that constitute unequal distribution of resources influence the medical encounter and its outcomes.
A significant body of research from different theoretical traditions has emphasized the ways in which physicians transform the asymmetry of the encounter into power relations of subordination. Feminist critics (such as Fisher and Todd), Marxists (such as Waitzkin), and Habermasians (such as Mishler), have disclosed this aspect of the medical encounter. Feminist critics have shown how male physicians force their conceptions of women’s bodies and roles on female patients. Marxists have shown the reification and reproduction of class relations that take places in the medical encounter. The medical encounter has an ideological role because by reducing illness to the individual body, it occults the social roots of illnesses; and by favoring pharmacological solutions or behavioral changes, it depoliticizes issues and reduces the need to change the structures that produce illness. Habermasians show the oppressive effect that the “voice of medicine” has on the “voice of the life world,” replacing patients’ preoccupations with medical concepts. The research literature reveals that the communication process in the medical encounter has several characteristics that may result in a relationship of domination. One of the central ways of control of the communication process that takes place in the medical encounter is the management of information exchange (Waitzkin & Stoeckle, 1976, p. 264). This process has two dimensions: the control of information given to the patient by the physician1 and the refusal to hear what the patient has to say (by interrupting, changing issues, delegitimizing patients’ knowledge or conceptual framework of risks and illness, etc.).
Another form of physician domination is embedded in the characteristics of the interactional process. In this area, physician domination can take many forms: the substitution of everyday language by medical/expert language, framing risk in statistical terms and the quantification of experience, the introduction of certain topics (which imply the exclusion of others), the enunciation of directives, the limitation of patients’ stories by the use of closed questions directed only to the clarification of the symptom, and more. May and colleagues claim that “at a structural level the exercise of power in the consultation is about shaping the possibilities for talk in a way that exercises constraint, as well as promoting the patient’s agenda” (May, Dowrick, & Richardson, 1996, p. 197). In the medical encounter, the physician asks most of the questions, makes most of the statements, and usually all of the directives. Thus, the physician controls the encounter and determines its limits and goals.
This characterization of the medical encounter, though based on elements of reality, is one-sided and Manichean. It does not take into account that many patients do improve due to medical treatment; that most doctors do want to help their patients and not only subordinate them; and that while the doctor/patient relationship is asymmetric, that does not mean that patients are passive or incapable of agency. As Deborah Lupton argues, the medical encounter is also a place where doctors and patients work together in order to produce results that benefit them both (Lupton, 1997). Physicians and patients cope together with the uncertainty that characterizes the medical encounter in order to improve the patient’s health (Adamson, 1997). The uncertainty of both patient and doctor partly shapes their interaction, and it is a characteristic of the medical encounter that cannot be reduced to explanations in terms of domination/exploitation. Even physicians who are convinced that they are speaking from the position of the one who holds “true,” “scientific” knowledge, are aware of the uncertainty of their task, and this awareness shapes the interaction, demanding collaboration between doctor and patient. The discussion of risk in terms of statistical data is also a way for the physician to make his/her own uncertainty manageable.
The third way in which power appears in the medical encounter is through its interaction with social structures external to the encounter but that frame it. As Gastaldo argues, the medical encounter is situated at the intersection between the public (the class structure of society, ethnic and gender stratification, the ways of organization of health care and its commodification, the socialization of the medical profession and the development of medical knowledge); and the private, individual body (Gastaldo, 1997, p. 115). Power works in a two-way direction linking the medical encounter with society as a whole. In one direction, the medical encounter functions as a reproducer of hegemonic relations insofar as it reinforces the cultural values of the society in which it takes place and reproduces and affirms existing patterns of social stratification (Todd, 1984). However, while the medical encounter cannot be reduced to social structures, it is structured by class, gender, and ethnic relationships. The social context influences the medical encounter up to the level of language itself—doctors and patients speech acts (Fisher & Todd, 1983). As Lupton argues, “it is not only the biomedical model and the imperatives of time which shape medical judgments, but value judgments about the patient based on gender, class, ethnicity, age, physical attractiveness and the type of illness” (Lupton, 1995, pp. 123–124). A review of the literature has shown that doctor–patient communication varies according to the social class of the patient, and that low-income populations report lower communication satisfaction. Patients from lower social classes (measured either by income, education, or occupation) receive less information, less socio-emotional talk, and a less participatory consulting style (Verlinde et al., 2012). Peck and Denney (2012) have gathered existing research and shown that the medical encounter also reproduces existing race and gender hierarchies. Metzl and Hansen call for the need of teaching structural competency, recognizing how economic, physical, and sociopolitical forces impact the medical encounter and medical decision making (Metzl & Hansen, 2014).
The third dimension of power tends to be overseen both by doctors and patients. Both are likely to accept the social context as a given, while simultaneously seeing the medical encounter as a neutral space, not influenced by the social context.
The prominence of the medical encounter and the danger of relations of subordination make it a central aspect of medical ethics, as will be demonstrated in the next section.
Ethics and the Medical Encounter
The prevailing medical ethics’ approach to the medical encounter focuses on the doctor/patient dyad as individuals, and is grounded on liberalism, whether egalitarian or utilitarian (Rhodes, 2007). While bioethics has become more sophisticated and diverse in the last decades, Beauchamp and Childress’s four principles are still remembered by rank and file practitioners as the main guidelines for their ethic obligations toward their patients. The main implications of these principles as usually described by practitioners is that physicians have to respect their patients’ dignity as individuals (Boylan), their autonomy as individuals and their rights (see, e.g., WMA (World Medical Association), BMA (British Medical Association) ethical codes). Truth-telling and transparency are key elements of respect for the patient’s autonomy. Physicians have the duty to do no harm (non-maleficence). They have duties toward their patients, such as maintaining the highest standard of professionalism, providing competent medical service, and acting in the patient’s best interests (WMA) (beneficence). They have the duty to care for their patients (beneficence) (Rhodes). They have to allocate their efforts according to considerations of urgency, need and efficacy (Rhodes), and must not discriminate (BMA) (justice). Today, good communication is considered part of the physician’s ethical duties toward his/her patients, a duty stemming from respect to individual autonomy, from the principle of non-maleficence (since a bad communication can do harm, as for example, the patient misunderstanding questions related to a certain medication) and from the principle of beneficence (since, as we saw above, a good rapport and good communication have positive therapeutic effects). John-Stuart Gordon elaborates on Emanuel and Emanuel’s (1992) four models of the doctor/patient encounter, arguing that only the interpretative model (where the physician sees his/her role as an adviser and the patient’s autonomy as self-understanding) and the deliberative one (in which the physician understands his/her role as a friend or teacher and the patient’s autonomy as moral self-understanding) are appropriate ethic options. Both models are based on liberal assumptions. But even the informative model, in which the physician is a provider of information and a patient’s autonomy is understood in terms of choice, reflects liberal assumptions. A salient fact when analyzing this list of duties and responsibilities voiced by different professional organizations (BMA, AMA, WMA) and scholars in the field of medical ethics, is that the social context is accepted as a given. Even scholars such as Leslie Francis, who argues for justice considerations in the medical encounter, limits the discussion to the individual level (spending the same amount of time with patients belonging to different social classes or ethnic groups), helping patients to secure resources for care and managing care in a cost-effective way (Francis 2007). Francis, who goes way further than most other scholars in arguing for physicians’ commitment to justice, still limits the focus to the individual’s access to health care perspective, as when pointing to the choice physicians face to “become policy advocates for access to care” (Francis 2007). In sum, the liberal grounding of medical ethics does not allow for a more critical approach to the ethics of the medical encounter.
A different approach, which opens the door for a discussion on a republican egalitarian approach to medical ethics and to the ethics of the medical encounter, built on principles of equality, liberty, solidarity, and the common good, is the European Charter of Medical Ethics, adopted in 2011. Along with the duties to care for patient health and to provide the most appropriate treatment without discrimination, the duty to not act detrimentally toward the patient’s health in any circumstance (non-maleficence, beneficence, justice) and the commitments to confidentiality, informed consent, transparency, and respect for the patient’s autonomy (autonomy principle), the European charter adds two principles that do not derive directly from Beauchamp and Childress or from a liberal worldview. The fourth principle establishes that “The physician will take the environment in which the patient lives and works as decisive elements relative to his/her health.” Principle eight, remarking on individual autonomy, states, “While respecting personal autonomy, the physician will act in accordance with the principle of treatment efficacy, taking into consideration the equitable use of resources.” The fourth principal proposes an ethical responsibility for the doctor to take into consideration the patient’s social context. In following this principle, it would be unethical for a physician to consider the medical encounter as a neutral space, detached from the social world. In the eighth principle, autonomy is considered important, but not a principle trumping any other consideration. Equality stands as an equally important consideration. The European approach, thus, opens the way for discussing an alternative to the prevailing liberal view. This European view is corroborated by European bioethicists who have explored alternative paths to the liberal individualist one. Holm (1995) argues for a strong beneficence principle, and Hayri (2005) puts forward the idea of solidarity and the fact that individuals are always socially embedded. Taking forward this line of thought, we will present a republican egalitarian approach built on principles of equality, liberty, solidarity, and the common good.
A Republican Egalitarian Approach to the Ethics of the Medical Encounter
Republicanism, like liberalism, is a broad political philosophy. In order to make sense of its diversity, scholars divide republicanism into two main currents: (1) a neo-Aristotelian one, which stresses the importance of political participation in self-governed communities and considers political participation as part of the “good life”; and (2) a civic republican, or neo-Roman, current that stresses freedom as non-domination (Pettit, 2013). However, this schematic division does not give due justice to the richness of republican thinking, nor does it allow for an exhaustive rendering of a radical egalitarian republican perspective. Radical egalitarian republicanism shares with the neo-Aristotelian current the emphasis on the importance of political participation and of freedom as self-government. But it parts with the neo-Aristotelian current since radical egalitarianism stresses the importance of equal political participation, and does not consider it a mandatory characteristic of the good life. The core values of egalitarian republicanism are equality (with special emphasis on equality of participation), freedom as self-government, solidarity, and the common good understood as stemming from political conflict.
The claim to equality is not based, as for liberal egalitarians, on conceiving individuals as pre-social and pre-political entities, but on understanding human beings as embedded in a sociopolitical context. Our being-with-others, and the social structures of our living in common, are not a follow-up but rather a precondition of our individual existence. Human beings are vulnerable, and our common and equal vulnerability requires life in common, that is, political life. Because of our common vulnerability, no human can be an island: we are politico-social entities. Since our political condition is a consequence of our common and equal vulnerability as living beings, political equality, that is, equal participation in the decisions about the political community is central to the republican egalitarian perspective. That does not mean that taking part in the political space is mandatory for living a good life, as in Aristotle or Arendt; but that equal participation is the condition for society—the political community—equally taking care of all of us. Moreover, equal participation is a condition for individual and collective freedom, and the sole guarantee that the common good will be truly common. Egalitarian republicanism understands political equality in the sense that everyone should have the opportunity to become a citizen, and every citizen should stand on an equal footing, under law. For egalitarian republicanism every person must have the equal possibility to take part in legislating the laws that rule the political community in the ongoing definition of the common good, and in the actual ruling of the political community. Thus, republicanism requires “steps to be taken to relieve women from subjection to men, workers from subjection to employers, and the members of some racial, ethnic, or cultural groups from subjection to others” (Thompson, 2015, p. 174). This interpretation of republicanism requires also institutional designs in order to limit elite power to subject the common people (McCormick, 2011). Though radical egalitarian republicanism stresses that individuals are always embedded in and shaped by socials institutions, it has as its only criterion to inclusion, the capacity for political participation stemming from our common, universal vulnerability. While it could seem paradoxical to ground political participation on our common vulnerability, since the latter is sometimes associated with passivity, we do not think this is the case. First, vulnerability is also associated with resilience, and resilience implies an active attitude. But, secondly, and more important for our current discussion, vulnerability means that we are not self-sufficient. We live in society because we are vulnerable and in need of others, and because we live in society we are political beings. Our common vulnerability is what grounds an ethics of care, an ethics of being there for the other, thus becoming a crucial component for redefining the ethics of the medical encounter.
Political equality, that is, the possibility to equally participate in governing the political community, requires—as Rousseau argued—significantly limiting material inequalities. The demands of political equality require active measures to limit material inequality, differentiating—following Rousseau—between “natural inequalities of strength, intelligence, stamina, and the like on the one hand, and artificial inequalities of wealth, social position, status, and power on the other, expressed mainly in private property” (Garrard, 2002, p. 51). It must be made clear that the republican egalitarian ideas of equality and freedom require not only ex-post correction of material inequalities (through taxation and transfer payments), but ex-ante, through structural and institutional reforms that impede the unequal appropriation of wealth and resources.
Political equality is both a value in itself and the necessary basis for the following two central characteristics: (1) freedom as self-government, that is, citizens must be free from arbitrary rule by others and must (be able to) participate in the legislation of the laws that oblige them; and (2) the possibility of a politically achieved conception of the common good, that is, a conception of the common good that has been agreed upon through free and equal participation in the public sphere.
The egalitarian republican conception of freedom is deeply related to the idea of political participation (Thompson, 2015). Liberty is intimately connected to the exercise of political self-government by a collective, meaning that all participate in establishing the common rules and laws (Mouritsen, 2006, p. 17). Equal participation is a condition of freedom as self-government, and freedom is a condition for equal participation. For participation to be possible we need not only to be free of domination, but also free from being structurally put in a position of disadvantage or submitted to “extractive power” by the actions and practices of individuals, groups, or institutions (Schuppert, 2015, p. 450). Freedom means independence from social systems organized around oligarchic or elitist interests (Thompson, 2015). Egalitarian republicanism understands freedom as embedded in a specific political community and as the possibility to engage in collective action in order to change unjust distributions of power. It is true that any community implies taking into account the weight of past history, common culture, and consolidated institutions, and this may reinforce exclusionary trends. However, the emphasis on the political (as different from ethno-cultural or biological) character of the community, and the claim for equal political participation, implies a commitment to an inclusive approach.
The idea of individual autonomy, which is central to liberal political philosophy, is strongly linked to understanding freedom as the absence of external interference (Berlin, 1969). The republican conception poses a different understanding of individual actions in considering individual agents as shaped by social institutions. For republicanism, relations between individuals are rooted in the way power is organized within society. In this interpretation of the republican tradition, freedom implies not only respect for individual autonomy, but also collective action aimed at modifying unequal and unjust concentrations of power in order to allow self-government and political equality.
Since human beings are sociopolitical beings, embedded in society and belonging to a political community, freedom and equality, though fundamental, are not the only values relevant for radical egalitarian republicanism. Solidarity and the idea of the common good are also important. The principle of solidarity reflects individuals’ social embeddedness (Brunkhorst, 2005). The idea of solidarity, already in its inceptions, was different from the idea of fraternity. While the latter, etymologically, implies gendered family links, thus being limited to [male] members of the family, and therefore doubly exclusionary, the former implies openness to all members of the political community. This is a solidarity that stems from the common concern for public matters and equal participation of ordinary citizens in the affairs of the polis (Andronache, 2006). Solidarity is a reciprocal relation between common fellow citizens, linked by their dual role as legislators and subjects of the law. Solidarity is a guarantee of the equal enjoyment of individual and collective freedom by every member of the political community—and by the political community itself—since in the republican view, following Machiavelli, the individual cannot be free in a subjugated political community. Solidarity stems from and reinforces equal participation of all in public affairs (Brunkhorst, 2005). Republican solidarity means a commitment to fellow members of the political community (Andronache, 2006). It stems from the practice of citizenship, understood as an identity that members acquire through political participation, by engaging in “public dialogues and negotiations over how and by whom political power is exercised” (Tully, 2000, p. 215).
Thus, in the radical egalitarian conceptualization, solidarity is both open and challenging common social structures, thus not limited to family bonds or blood relation;, nor to being part of an ethnic, cultural, or closed national community. Radical egalitarian republican solidarity does not belong to Gemeinshaft but to Gesellshaft, expressed as a claim to an equal political community. It is not a link between identical individuals, mutual support based on similarity—but “dialectically combines opposites, contradictions and differences” (Brunkhorst, 2005, p. 4). In fact, solidarity is the emancipatory way by which difference and heterogeneity can “still be held together” (Brunkhorst, 2005, p. 4). While fraternity is pre-political, republican solidarity is always already political, stemming from (and allowing claims for) equal political participation in legislating and ruling. Insofar as each human being is zoon politikon—a political being—solidarity is open, both realized in a concrete political community and universal.
The fourth core idea of egalitarian republicanism is that every political community shares some conception of the common good. This common good is not a consensual general will, nor the ideal consensus to which we can arrive by a deliberation that replicates as far as possible the ideal speech situation. While liberals consider that a substantive common good implies some degree of coercion, and is opposed to pluralism, for republicans, the fact that we are political beings embedded in a society, requires a certain view of a common good, “in the sense of an indivisible good, which a social perspective necessarily offers us, since it sees men as realizing their potential only in a certain common structure” (Taylor, 1985, p. 298). This common good is not only different from particular interests, but—as claimed by Rousseau for the general will—is neither the aggregate of the partial interests and identities of each and every member of the political community (Schwarzmantel, 2006). Moreover, the common good is not only an agreement on some common procedures, but has a more substantive content (Schwarzmantel, p. 143). The common good is hegemonic in the sense posed by Gramsci, Laclau, and Mouffe (Gramsci, 1959; Laclau & Mouffe, 1985). Since in contemporary societies, individuals are characterized by multiple subject positions, and the ways in which the multiple subject positions are organized into social groups are always political, the common good is not self-evident or unanimous. There is no straightforward or non-conflictive expression of the people’s will. Does this conclusion bring us back to the liberal opposition to any form of substantial common good? We don’t think so. In fact, in every society there is a more-than-procedural common good, even though it does not always (or almost never) work for the many. This common good is a central element of hegemony, understood in the Gramscian sense. It usually represents the interests of the dominant group, but becomes consensual by taking into account, at least partially, the interests of different subordinated groups. In this sense, the common good is the partial and temporary stabilization of a specific combination of particular claims and ways of organizing society that are “universalized” (Laclau, 2005). Stabilization is always partial and temporary, because there is no possibility of closure of society, because there is no post-political utopia. Thus, the common good is always contested, and conflict is essential to its constitution.
Radical egalitarian republicanism is aware that the common good arises from social conflict, and is always contested. Thus, radical egalitarian republicanism aims to maximize the equal possibility of each and every one to participate in the configuration of that common good; it aims to democratize the constitution of the common good. Radical egalitarian republicanism aims to democratize the delimitation of the practical norms that characterize the common good, to broaden public goods so as to maximize equal distribution of wealth and income, and to limit as much as possible the identity-focused meaning of the common good, in order to leave open access to membership in the polity and access to co-participate in the definition and attainment of the common good.
Equal political participation, freedom understood as individual and collective self-government and an inclusive conception of solidarity, allows for ways by which free and equal political actors may reach agreed conceptions of the common good. These agreements may be able to overcome both the limitations of the individualism that characterizes the liberal approach, and those of communitarian identification that are not reflexive and critical on existing hierarchical distributions of power and resources.
In combining a conceptualization of liberty as self-government (individual and collective), equality, solidarity, and an understanding of the common good as always contested, thus open, political, embedded in a political and not ethno-cultural or biological community, and in viewing participatory democracy as the practice that connects those different elements, radical egalitarian republicanism offers an alternative to the liberal approach. As explained above, it offers a broader understanding of liberty and equality than liberalism. Egalitarian republicanism extends the idea of freedom, in such a way that it not only addresses the actions of agents, but also the ways in which social institutions and unequal distribution of resources and power result in violations of freedom (Thompson, 2015), and extends the idea of equality to include political participation in ruling and the required equality in the distribution of resources and power.
By emphasizing equality of participation in the ruling of the political community, it develops a more complex and deep conceptualization of liberty than the liberal understanding of freedom as a non-interference one. It offers a much broader conceptualization of equality than the liberal one: grounded on our common vulnerability, and extending from the legal and traditional bioethics fields to the political and the social ones, since the unequal distribution of wealth increases vulnerability and makes equal political participation in ruling impossible (Thompson, 2015).
The field of health care is of interest for republican egalitarians, since health care’s aim is to deal with vulnerability; and our common vulnerability is the starting point for the republican egalitarian understanding of human beings as sociopolitical. The republican egalitarian perspective allows for a redefinition of the right to health, and for a reassessment of medical ethics’ four principles; this will guide our discussion—in the next section—of the ethics of the medical encounter.
When discussing questions of entitlement in the field of health and health care, as well as the doctor–patient interaction, liberal approaches stress aspects related to civic and individual rights, among them mainly the right to bodily integrity, autonomy, consent, individual right to health care, and the quid pro quo between the right to health care and property rights. Even liberal egalitarians such as Norman Daniels accept a certain degree of inequality, not only as given but as a necessity, arguing that our concern for equality must be reconciled with considerations of liberty and efficiency (Daniels, 1996). Moreover, liberal egalitarians understand equality as equality of opportunity. Equality of opportunity is violated “only if unfair social practices or preventable or curable diseases or disabilities interfere with the pursuit of reasonable plans of life … [, thus] making us lose competitive advantage. We accept … the fact that the natural distribution of talents and skills, working in an efficient market for them, will both enhance the social product and lead to inequalities in social outcomes” (Daniels, 1996, p. 366). From a republican egalitarian perspective of our common and basically equal vulnerability, we cannot accept avoidable inequalities in health as a given or a necessity. For egalitarian republicanism society must aim to provide the social basis for an equality of condition for all human beings. (Thus, we need a conceptualization of the right to health coherent with the idea of equality of condition. From such perspective, the right to health means that every person has a claim to the amount of goods and services—including health care—that are needed to ensure a level of health equal to that of any other person, when inter-individual differences in health are the product of social organization or can be reduced by treatment. Every person has a claim to equal health care for equal needs in those cases in which inter-individual differences in health result from natural—biological—variations, or from personal choices when those choices are not determined by the unequal distribution of resources and power for a clarifying classification of the causes of disparities in health). Instead of focusing on the individual and on personal autonomy, a radical egalitarian health rights approach will stress the importance of social structures, and the need for a different institutional framework that works toward making a universal right to health possible. Such an approach also emphasizes the centrality of politics in building adequate institutions and in modifying those social structures that cause inequities in health.
From a republican egalitarian perspective, the four principles should be broadened and include the solidarity principle. In this view, the principle of autonomy does not stem from a pre-social free individual, but from a socially embedded individual who governs him/herself. Moreover, autonomy has no lexical priority over other bioethical principles such as non-maleficence, beneficence, justice, or solidarity. The relations between the different principles result from negotiation, since autonomy is always contextual. Furthermore, egalitarian republicanism is aware that in an unequal and stratified society, autonomy is always constituted along class, gender, national, ethnic, and age lines. Egalitarian republicanism understands the principle of beneficence (as well as the principle of non-maleficence) not in its original and paternalistic version (where the physician or the researcher knows and decides on behalf of the patient what beneficence is), nor in an individualistic consumerist version (where the “client” decides what s/he considers as of benefit). Republican egalitarianism understands both principles as stemming from our awareness that we are vulnerable and that a central role of society is to care for our vulnerability, and from our solidarity with our equals. The principle of justice is understood as social justice and substantial equality, described by Rousseau as a precondition for equality under the law, as the latter is only possible insofar as they all have something and none of them has anything superfluous. It becomes central in guiding decisions on a “just” (re)distribution of power and resources. Finally, the principle of solidarity means that our decisions as physicians must take into account not only the needs, rights, and views of the specific person who sits in front of us in a specific medical encounter, but also the legitimate needs, rights, and views of the other members of the political community.
Final Thoughts on a Republican Egalitarian Approach to the Medical Encounter: The Example of Medical Errors and Apologizing
The first idea stemming from an egalitarian republican view is that the field of ethics in the medical encounter is broader than analyzed from the dominant liberal perspective. Medical competence, secrecy (to others), transparency (to the patient), informed consent, and respect are certainly important ethical duties, but not the only ones. As expressed in the European charter, physicians have also the ethical duties “to take the environment in which the patient lives and works as decisive elements relative to his/her health,” and, “while respecting personal autonomy, the physician will act in accordance with the principle of treatment efficacy, taking into consideration the equitable use of resources.”
The example of dealing with medical errors, including apologizing, in the medical encounter, shows the importance of broadening the discussion beyond the traditional liberal bioethics.
In recent years, both formal and informal initiatives have promoted the inclusion of apologies in medical education and clinical practices. Many countries have even regulated medical apologies through law. Although there has been much discussion of the potential for apology to promote efficiency and the conditions for a successful apology, the focus has mainly remained the traditional liberal interpretation of the doctor–patient relationship. These interactions have been conceptualized in individualistic settings, with almost no discussion of the collective, cultural, and political dimensions of apology. Moreover, no reference has been made to cases of apology following collective trauma caused by public health activities.
An important document representing current medical culture with respect to medical errors and the proper response to such errors was the Institute of Medicine’s (IOM) 1999 report, To Err is Human: Building a Safer Health System. This document broke the silence that has surrounded medical errors and their consequences by recognizing that “To err is human” and refusing to blame well-intentioned health care professionals for making honest mistakes. Instead, the committee aimed to promote an agenda for reducing medical errors and improving patient safety through the design of a safer health system. Although the report prominently notes the rough legal atmosphere surrounding medical errors, it does not seriously question the current legal framework. Rather, the report perceives the framework more as a constraint within which the design of more efficient workplaces and encouragement of disclosure for future preventions of mistakes must operate. The report considers the problem in the context of (1) rising numbers of medical errors, with more people dying in a given year in the United States as a result of medical errors than from motor vehicle accidents, breast cancer, or AIDS; (2) rising costs of medical care, including litigation costs; (3) increasingly technology-oriented hospitals and health care interactions; and (4) growing alienation between patients and physicians. While this context invites us to develop the idea of reducing these rising tensions, the term “apology” cannot be found in the IOM report; instead, the main framework is patient safety.
Apology within the health care system is unique in that situations that call for an apology constantly occur within public institutional settings such as hospitals or community health care services. Thus, apology in the contexts of health care services transcends its interpersonal quality and becomes a target for regulation and careful design. Another important characteristic of apology within the health care system is the inherent structural imbalance between patients and health care providers. Patients are, by definition, less powerful, unfamiliar with the system, less knowledgeable, and less able to control the interaction with health care providers.
It can be argued that apology regulation aims to encourage doctors and health care providers to develop more sincere human interactions with their patients without fear of sanction by law for such efforts. In other words, legal regulations may provide a safe area where sincere human gestures will not have legal consequences. Health care apologies are designed in ways that neutralize the legal consequences—as expected in private apologies—and still enable the advantages of amicable dispute resolution without legal litigation. Although there is an acknowledgment of the importance of apology in transforming relationships and improving health care services, many of the current legal arrangements fail to construct circumstances permitting apologies to follow all of the conditions above and thus do not produce effective apologies.
Situating reactions to medical errors within a republican egalitarian perspective can contribute to an enriched perception of doctor–patient communications following medical errors and more broadly for apologies in the health care system and may contribute to a better practice that goes beyond concerns of efficiency and dispute settlement:
First, an increase in the awareness to the political context is important both in public and private apologies, and will help to develop a practice of apology that is much more context sensitive and rejects adoption of a uniform manual of apology making. There is significant value in considering the different professional and cultural identities involved in the health care dispute and constructing an apology that fills the expectations of all parties involved, while also considering power imbalances and cultural difference.
Second, the purpose of apology should be as much the promotion of social solidarity as saving money or avoiding litigation. An apology that does not focus only on interpersonal private aspects between two individuals, but include also a more collectivist notion, embedded within the understanding of the social and political context of the apology act, has a better potential for the amendment of social fractures related to the broader context of medical errors.
Third, when considering a case of medical error, egalitarian principles should be part of the apology process. Apologizing in a full sense includes more constructive acts of communication, which can assure the patient that his case has sparked structural changes and the potential development of new practices and enhanced ethical thinking. It also includes the active participation of the affected parties in constructing a meaningful apology together. This aspect is rooted within the republican egalitarian understanding of equal participation in the social and political spheres.
Finally, the more humanistic notions of reconstruction and symbolic acknowledgment should accompany and supplement the notions of efficiency and resolution that prevail today within the “apology market.” Apology is productive, efficient, and definitely improves medical services, but its operation cannot be fully understood without addressing other dimensions, ranging from structural, historical, and political aspects.
Framing medical errors and apologies within a radical egalitarian health rights approach, instead of the traditional bioethics emphasis on the individual and on personal autonomy, express the importance of social structures and the need for a different institutional framework that works toward making a universal right to health possible. These considerations are usually missing from current discussion of the medical encounter. Such an approach emphasizes the centrality of politics in building adequate institutions and in modifying those social structures that cause inequities in health, creating a different space for an improved doctor–patient relationship, which brings with it a more egalitarian and participatory medical encounter.
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