SECTION 5: THE PRINCIPLES OF BENEFICENCE AND NON-MALFEASANCE

‘Primum non nocere;  above all . . .  do no harm'.

-- A fundamental medical principle (from the Hippocratic Oath; see Appendix B.)

5.I WHAT ARE THE PRINCIPLES OF BENEFICENCE AND NON­-MALFEASANCE?

As we have seen in earlier examples, the Principle of Autonomy is not the only principle appealed to in health care decisions. Appeals are also made to the Principles of Beneficence and Non-malfeasance (see ET1008: Section 12.1.2, Section 15.3.1, 15.3.2 and 15.3.3). The following example provides an illustration of all these principles at work.

THE NEW DRUG EXAMPLE

There is a new drug which should give an excellent chance of remission for an individual who has leukemia. However, this drug has not yet been evaluated over the long term so that there might be the risk of, as yet unknown, harmful side-effects. The consultant considers that the new drug should be prescribed. Discussion about the possibility of risks should be omitted on the grounds that the individual would not have sufficient medical competence to evaluate the these. The consultant is in the best position to determine which treatment is best for the individual. The nurse considers that the treatment options should be fully discussed with the individual and that the individual has the right to decide on the treatment.

The consultant is appealing to the Principle of Beneficence since the assumption is that the new drug will be for the benefit or well-being of the individual. The consultant also appreciates the relevance of the Principle of Non-malfeasance, one ought to do no harm, since the risk of possible harmful side-effects has been considered. The nurse is giving priority to the Principle of Autonomy since this is considered to be an area in which the individual has the right to be self-governing. The individual has the right to be given sufficient information about the possible available treatments and then to decide which treatment to have.

5.2 JUSTIFICATIONS OF THE PRINCIPLES OF BENEFICENCE AND NON-MALFEASANCE

As with the Principle of Autonomy, we need to consider how the Principles of Beneficence and Non-malfeasance could be justified in consequentialist and deontological terms (see ET1008: Section 12.3, Section 13.2, and 13.3,  Section 15.3 and 15.4,  Section 16.2 and Section 17.4).

5.2.1 Consequentialist justification

ONLY ONE PRINCIPLE?

It might be argued that really we have only one principle here and that promoting well-being and not harming just represent opposite ends of a continuum. This is the position usually adopted by those who justify these principles in consequentialist terms (see ET1008: Section 13.2). Also, the Hippocratic Oath lists them together:

‘ I will use treatment to help the sick according to my ability and judgment, but I will never use it to injure or wrong them. ' (see Appendix B.)

The reason for saying that these two principles might represent two ends of a continuum becomes apparent if one starts to ask what promoting benefit involves. If one adopts a hedonistic consequentialist position such as that advocated by Mill, then promoting benefit will involve seeking to maximize as much happiness as possible. Singer's view is that promoting benefit involves maximizing interest satisfaction. We ought to perform positive acts to promote what is taken to be of benefit.

However, in addition to acts such as these which quite obviously fall under the Principle of Beneficence, we also have acts which could be said to be promoting benefit by removing unhappiness or states of affairs where interests are not satisfied. Possibly, the majority of health interventions are of this nature since they are attempting to remove a cause of unhappiness and in this way conform to the Principle of Beneficence. Treatments are designed to benefit an individual by curing a condition that was detracting from the well-being of that individual.

Thirdly, we have those acts, which could also be said to fall under the Principle of Beneficence, that are designed to promote well-being by preventing harm. Advances in preventative medicine provide a clear illustration of this, of which an obvious example is the immunization program.

From preventing harm, it is argued, it is a short step to the Principle of Non­-malfeasance which advocates that we ought not to inflict harm. We are benefiting individuals by not harming them. Indeed, Mill when he formulates his Principle of Utility (see Section 2: 2.3), describes happiness as pleasure and the absence of pain.

One argument that one might advance to deny that there is a continuum between the Principle of Beneficence and the Principle of Non-malfeasance is that the range of application of the two principles is different. The latter principle applies to everyone unlike the former principle. We do not have a duty to benefit everyone although we have a duty not to harm anyone.

However, this is precisely the point that consequentialist theories deny. They consider that we have a duty to produce as much good as possible and therefore that the range of application of the principles is equally wide. Just as it would be wrong to do harm to someone by, for example, murdering them, similarly, we have a duty to do much more good in the world than is currently the case. For example, in not giving more to charity, we are actually allowing many people to die and this is just as bad as killing someone. We are, after all, evaluating the rightness or wrongness of our actions by the consequences of our actions and consequences can be produced by omissions as well as acts.

Jonathan Glover is one who supports this sort of view, but he tempers it by suggesting that we have to work out priorities in our life. He writes:

‘ The moral approach advocated here does not commit us, absurdly, to remedying all the evil in the world. It does not even commit us to spending our whole time trying to save lives. What we should do is work out what things are most important and then try to see where we ourselves have a contribution to make. ' ¹

This sort of position is examined in Section 7, when we look at the acts and omissions doctrine.

If we assume for the moment that we can make a distinction between positive actions and omissions, then we could list the acts of doing good, removing harm and preventing harm as being appropriate to the domain of beneficence leaving only the duty of not inflicting harm (omission) within the province of the Principle of Non-­malfeasance.

5.2.2 Deontological justification

Understood in this way, it is argued by supporters of deontological theories that there is an important difference between the Principle of Beneficence and the Principle of Non-malfeasance. Kant, for example, talks of the duty of non-malfeasance as being a perfect duty and the duty of beneficence as an imperfect duty.

Kant defines a perfect duty as `one which allows no exception in the interest of inclination'. ² What he means by this can be illustrated by the suicide example that was used in Section 4. Since the duty of non-malfeasance, not inflicting harm, is a positive duty, then even if we have a strong inclination to end our lives, this does not entitle us to commit suicide and make an exception to the Principle of Non-­malfeasance. However, in the case of imperfect duties, such as the Principle of Beneficence, we can consult our inclinations in the sense that it is up to us to a certain extent to decide whom to help. If a doctor or nurse wishes to help care for the orphans in Rumania, he or she is not condemned on the grounds that, for example, there is more need in Iraq. There is some latitude to decide whom one will help but the duty not to inflict harm is applicable universally.

This distinction reflects a fairly widespread common sense intuition that perfect duties such as the duty of non-malfeasance have greater stringency than imperfect duties. That is, our duty not to harm is greater than our duty to benefit. Therefore, in cases of conflict between beneficence and non-malfeasance, non-malfeasance will normally override beneficence. Let us take a somewhat frivolous example. There is one individual who could donate two of his organs to two other individuals and thereby save their lives at the expense of his own. The duty of not inflicting harm on this individual to benefit the other two will take precedence here. Interestingly, some consequentialist might have to reach a different decision since the consequences of two lives saved as opposed to one might appear to make the action of removing the organs the right action.

5.3 DESCRIPTION OF CASES

Although common sense intuition might draw this sort of distinction between the Principle of Beneficence and the Principle of Non-malfeasance, there is a problem in some cases to decide which principle is applicable.

For example, consider a case ³ where a man has agreed to undergo tests with a view to donating bone marrow. The tests reveal the compatibility of the bone marrow. The individual then changes his mind about going ahead with the donation. How would we describe this case? What duty does the donor owe to the potential recipient of the bone marrow? Is it a duty of beneficence since it will remove harm, or is it to be described as falling under the Principle of Non-malfeasance since deciding not to give bone marrow after having previously agreed to is to inflict harm? If deontological theories are correct then this will make a difference. If it is described as a duty of beneficence then this does not have the stringency of the duty of non-malfeasance. The potential donor would not be obliged to go ahead with the donation. For consequentialist, the description of the action would presumably not make a difference to whether or not the action was obligatory. The consequences would be the same regardless of the description and actions are evaluated as being right or wrong depending on their consequences.

Another area where the description of the action might determine whether or not the case is deemed to fall under the Principle of Beneficence or the Principle of Non-malfeasance is in the field of abortion. If we assume that we have an individual from the moment of conception whom it is possible to harm (see Section 3.4.2), what duty do we owe to this individual? Do we say that we owe him or her a duty of non-malfeasance and thus that an abortion would be wrong since we are harming the fetus by killing it? Or do we say that the Principle of Beneficence allows us the latitude to decide whom we benefit and we are not obliged to benefit this particular individual? ⁴ Although we have a duty to benefit, we do not have a duty to benefit anyone in particular and when we decide to benefit a particular individual this is more accurately described as a case of supererogation, beyond the call of duty.

Of course, in the area of health care it might be argued that by becoming a health care professional one has taken on a duty to benefit the individuals who consult you. However, this is still a limitation on the range of application of the Principle of Beneficence since this duty is not owed to everyone.

5.4 ASSESSMENT OF BENEFITS AND HARMS

A major problem with the application of the Principles of Beneficence and Non-malfeasance concerns how benefits and harms are to be assessed. What is to count as well-being, what is to count as harm and whose concept of harm and benefit are we to consider? The health care team's concept of what counts as a harm or benefit might well differ from the view held by the individual who is subject to their care.

It is important when considering this range of problems to recognize that well­being and harm are evaluative terms. Harms and benefits are not things that can objectively be determined to be present. They are not like determining how many people are in a room or whether a light is switched on or not. Rather, they depend on an individual's evaluation of the situation. Infliction of death, which might be viewed as the ultimate harm for an individual, might be viewed by some people in some situations as a benefit. Serious requests for euthanasia indicate that the individual's evaluation of their own life leads them to view death as a benefit rather than a harm.

In a less extreme case, a surgical procedure to amputate a hand might be con­sidered, since the alternative of trying to save it will incur great pain and will also put the rest of the arm at risk. In terms of probabilities of success indicated by similar cases in the past, the best course of action will be to amputate the hand. However, what is needed is the individual's own assessment of what these alternatives mean to his life. A concert pianist might well think it worth the risk of trying to avoid amputation because of his or her lifestyle. This case illustrates two points:

1.      First, that benefits and harms need to be weighed against each other.

2.      Second, that the conclusion reached as a result of this weighing might well differ from individual to individual depending on how they view what counts as well-being for them.

5.5 THE PRINCIPLE OF AUTONOMY AND THE PRINCIPLE OF BENEFICENCE

This last point highlights the problem of what is to be done when there is a conflict between the health care team's weighing of benefits and harms and the individual's weighing of benefits and harms (see ET1008: Section 16.2.1 and 16.2.3). In the `new drug example' we saw that the consultant has weighed the benefits and harms of the different treatments. This would be described as paternalistic, since it is the health carer's evaluation of what would benefit the individual. Literally, the health carer is acting like a father by doing what he or she considers best for the individual and by assuming that it is appropriate to take some of these decisions for that individual. In this case the individual was not consulted about the treatment options. However, there are cases where the individual is consulted and their evaluation of benefits and harms differs from that of the health carers. Ought the individual's evaluation to be given priority always or is paternalistic intervention justified in some cases? In other words, what do we say about cases where the Principle of Beneficence appears to dictate one course of action, but this prescription would conflict with the requirements of the Principle of Autonomy?

The view that we advocate is that autonomy ought always to override these other principles, but that the difficult question to decide is whether or not the individual can be regarded as autonomous in each individual case. As we argued in Section 4, the characteristics necessary for autonomy will vary depending on the complexity of the decision required, but this still leaves latitude for differences of opinion about whether or not the Principle of Autonomy applies in an individual case.

For example, if someone adopts a life plan which we think is not the sort of life plan that a rational individual would adopt are we justified in denying that that individual has autonomy? In other respects, the individual might be exhibiting rationality in pursuance of this life plan. An individual might be choosing appropriate means to achieve the end that he or she has adopted, and their adherence to this end might be consistent with other aspects of their life. In other words, they would be exhibiting two characteristics that indicate rationality, but it is being judged that the life plan they have adopted makes it appropriate to deny that the Principle of Autonomy applies in this particular case. One such example is given by Beauchamp and Childress ⁵ where an individual is admitted to a mental institution on the grounds that the life plan they have adopted involves self-mutilation. Their belief in God has led them to think that God requires these sacrifices from them in order to prevent even greater harm to the rest of humanity.

The danger of allowing paternalistic evaluation of life plans is that this would enable one to deny that the individual is capable of an autonomous decision. This would therefore allow the possibility of a justified paternalistic intervention. Of course, if the Principle of Autonomy genuinely does not apply, then a paternalistic inter­vention justified by the Principle of Beneficence might well be appropriate. The justification would be that the individual being treated is unable to judge themselves in the particular case what would benefit them. So paternalism here is not being advocated in opposition to recognizing autonomy because it is assumed that the Principle of Autonomy is not applicable. Where the Principle of Autonomy is applicable, then this should have precedence.

The Principle of Autonomy justifiably overrides the Principle of Beneficence and, indeed, the Principle of Non-malfeasance for the following reason. If an individual has the characteristics necessary to exercise autonomy in a particular case then this implies the ability to judge what is beneficial or harmful for that individual. Given that we have argued that well-being and harm are evaluative terms, the evaluation of an individual who is capable of making an assessment of what constitutes well-being or harm for them ought to be the final court of appeal. This is justified on both deontological and consequentialist grounds. The latter justification would consist of arguing that the consequences were the best if this were advocated, since the deter­mination of what counts as a good outcome has been made by the individual concerned. A deontological justification consists of pointing to the intrinsic worth of exercising autonomy (see Section 4.2.2)

This last point highlights that we only have the potential for conflict between the Principle of Beneficence and the Principle of Autonomy if we combine the Principle of Beneficence with a paternalistic evaluation of benefits and harms. If the individual's evaluation of benefits and harms is coupled with the Principle of Beneficence, then this is in conformity with the Principle of Autonomy. The individual will decide to do what he or she considers will be of most benefit to him or her.

REFERENCES

1.    Glover, J. (1982) Causing Death and Saving Lives. Penguin Books, London, p105.

2.    Kant, I. `Groundwork of the Metaphysic of Morals'. In H.J. Paton (ed) (1948) The Moral Law. Hutchinson University Library, London, p85.

3.    Beauchamp, T.L. and Childress, J.F. (1983) Principles of Biomedical Ethics (2nd edn). Oxford University Press, Oxford, pp315-16.

4.    Jarvis Thomson, J. (1986) `A Defense of Abortion'. In P. Singer (ed) Applied Ethics. Oxford University Press, Oxford, pp37-56.

5.    Beauchamp and Childress, op. cit., pp295-6.