OTROS INGRESOS

In the Belmont Report, the principle of non-maleficence was considered as a single entity with the principle of beneficence. But in Beauchamp and Childress‟s (2001) Book, The

Principle of Biomedical Ethics, both principles are treated as separate entities; the principle of

beneficence as a positive principle – which obliges health professionals to maximize benefits – and the principle of non-maleficence as a negative principle – which obliges professionals to minimize burdens. According to them, when one treats the principles of beneficence and non-maleficence as a single entity, one risks losing the relevant distinctions that apply to each of them.

The principle of non-maleficence supports the same ethical duties in the physician-patient relationship as the principle of beneficence. These include the duty of care, the duty to warn and the duty to rescue.60 While the principle of beneficence requires physicians to actively pursue the health benefits of others, the principle of non-maleficence requires them not to intentionally cause harm to others. Avoiding harm – related to the maxim primum non nocere first do no harm – is therefore at the core of this principle. Harm, Omonzejele (2005: 23)

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Nonmaleficence and beneficence are really two sides of the same coin. While nonmaleficence requires one not to intentionally (and wrongfully) cause harm (do no harm), beneficence requires one to further a patient‟s interest (bring about benefit). Sometimes one way of providing benefits to an individual is by removing harm from his/her way. Harm is also sometimes removed from an individual by providing beneficial information, such as providing W with life-saving information. Thus, some duties which fall under the principle of beneficence could also be evaluated under a principle which requires physicians to remove harm from their patients' way.

However, non-maleficence is distinct from beneficence. As stated, the principle of beneficence requires physicians to actively pursue the health benefits of their patients. The principle of non-maleficence, on the other hand, requires them not to intentionally cause harm to others, which is proscriptive. Not providing beneficial information (which is a feature of the duty of care) may be considered as one way of intentionally causing harm.

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says, “brings about pain and pain brings about distress”. En effet, Beauchamp and Childress (2001: 114f), maintain that a reason for treating the principle of non-maleficence as a separate entity is the risk of losing the relevant distinctions that apply to harm. The requirements of not causing harm to others are quite distinct from the requirements of helping others. This important and sharp distinction is often missed in literature which considers both principles jointly.

Although Beauchamp and Childress (2001: 115) argue that the principle of non-maleficence, like all other principles, can be overridden in particular situations, they tend to believe that the obligations implied by non-maleficence are generally more stringent than the obligations implied by the principle of beneficence, for the reason that this principle requires individuals to refrain from intentionally and wrongfully causing harm to others (Omonzejele, 2005). Jonsen (cited in Omonzejele, 2005: 24) itemizes four duties implied in the obligation not to cause intentional harm:

i) Not to intentionally cause harm to others

ii) Provide adequate care

iii) Properly assess the situation

iv) Make proper detriment-benefit assessment.

A physician who believes he could save four innocent lives by killing and harvesting the organs of a prisoner on death row, cannot on the basis of producing an overall net benefit (beneficence) deliberately murder another person (non-maleficence). His action will be morally indefensible, since he has a duty not to wrongfully (and intentionally) cause harm to others.

I believe the important challenge that this principle faces is defining harm. As Omonzejele (2005: 24) rightly observes, physicians in reality do intentionally inflict some form of harm which may qualify as a breach of the principle of non-maleficence, and yet this is acceptable within clinical practice. Beauchamp and Childress (1994: 193) propose a normatively neutral definition of harm, which is “thwarting, defeating or setting back the interests of one party”. Joel Feinberg (quoted in Kleinig, 1986: 4) makes a distinction between (a mere) setting back of others‟ interests, and a wrongful setting back of others‟ interests. Harm in the latter sense features in Mill‟s harm principle, while harm in the former sense is the way Beauchamp and

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Childress define harm. However, the obligation of the principle of non-maleficence is not to wrongfully and intentionally cause harm to others.

In Beauchamp and Childress‟s (2009) opinion, all forms of harm involve setting back someone‟s interests - in every case of harm, someone‟s interest is set back by another/something. One can however, be harmed without being wronged. Similarly, one can also be wronged without being harmed. In the first instance, individuals can be harmed without being wronged, such as in natural disasters. In the second instance, if an insurance company refuses to pay a patient‟s health bill, one may say the patient has been wronged (Beauchamp and Childress, 2001: 193). However, if the hospital decides to pay this bill, rather than the patient, here one can conclude that the patient has been wronged (by the insurance company), but not harmed (since the bills were settled by the hospital).

Some thwarting of other‟s interests, Beauchamp and Childress (1994: 193) argue, may be justified, while others are not: putting someone in jail for committing a crime is a form of thwarting that is justified under most penal codes. In the same vein, inflicting a surgical wound for example, in order to achieve the overall net health benefits of patients is justifiable; since in this regard, benefits outweigh the harm inflicted. This is an aspect61 of the principle of double effect which Beauchamp and Childress (1994: 210) accept, while jettisoning the rest. However, an intentional and wrongful infliction of harm is never justified, for example, harvesting a patient‟s organ without consent, with the aim of saving other lives.

It is important to note that in Beauchamp and Childress‟s (2001: 117) description of the principle of non-maleficence, the setting back of others‟ interests could come in different forms: physical, psychological, financial, etc. However, Beauchamp and Childress (2001: 117) limit their consideration of harm involved in the principle of non-maleficence to physical harm, especially pain, disability and death, without denying that other forms of harm

61 _{There are other equally important conditions which must be satisfied in order to justify double effect. In} addition to this, "the agent must intend only the good and not the bad effect. The good effect must be achieved directly by the action and not by way of the bad effect. And finally, the good result must outweigh the evil permitted." (Omonzejele, 2005:24)

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are possible. Physical harm, in their opinion, is the paradigm instance of harm.62 Following this delimitation, specific prima facie moral rules supported by this principle include:

i) Do not kill

ii) Do not cause pain or suffering

iii) Do not incapacitate

iv) Do not cause offense

v) Do not deprive others of the goods of life. (Beauchamp and Childress, 1994: 194)

In addition to the above, the principle of non-maleficence also involves the obligation not to carelessly or unreasonably impose risks that could lead to any of the above. A careless – intentional or unintentional – imposition of risks is described by Beauchamp and Childress as negligence. The duo explain how negligence can occur. According to them;

i) The professional must have a duty to the affected party

ii) The professional must breach that duty

iii) The affected party must experience a harm

iv) The harm must be caused by the breach of the duty (2001: 118)

The preceding description of the principle of non-maleficence has some ethical difficulties. First, it is possible to intentionally cause harm in order to produce an overall net benefit. And based on the moral rules supported by the principle of non-maleficence, one would still be partly justified and partly unjustified in inflicting such harm. Let us consider the example of a hospitalized severely ill five month old baby with far-reaching physical deformities and severe mental retardation. This baby is born to a couple who lives on a R1000 monthly income and who have four other children to feed. The pediatricians suggest that the baby can live to see his sixth birthday, and no more, if only the parents are willing to set aside R850 monthly for his required special diet and hospital admissions. Upon careful consideration, this couple decides to inform the pediatrician to discontinue treatment since such treatment

62 _{I think it is not a wise decision to adopt physical harm as the paradigm instance of harm as Beauchamp and} Childress do. In the Belmont Report‟s categorization of harm into social, economic, legal, psychological and physical, there is no attempt to place one form of harm over the other for the reason that each has unique features and none can reasonably be said to be more harmful than the others. Psychological harm, for example, can be as damaging as physical harm. In fact, it is well documented in empirical studies (Christensen and Gomila, 2012) that psychological harms are as significant, and sometimes even more significant, than physical harm. Thus, by adopting physical harm as the paradigm instance of harm, Beauchamp and Childress miss an opportunity to enrich their approach with the relevant distinctions that apply to each form of harm.

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will come at a great risk of malnutrition to the entire family, or lead to the other children having to drop out of school. Moreover, even with treatment, this infant would still not be able to live a normal life. The pediatrician obliges the parents, following their explanation that continuing treatment will deprive their other children of the goods of life, and based on his assessment of the severity of the baby‟s illness, as well as the quality of life open to this child. Following these considerations, the pediatrician judges that the harm brought about – to the child and family – from continuing treatment would be greater than the harm caused by discontinuing treatment, and thus, he discontinues treatment. Yet intentionally discontinuing treatment in order to avoid depriving others of the goods of life (Rule 5) and causing future pain to the child (Rule 2) is itself an intentional infliction of harm, as it allows death to occur (Rule 1). Here the discontinuation of treatment is both justified by this principle (Rules 2 and 5) and partly not justified by the same principle (Rule 1).

Similarly, on the basis of the moral rules supported by this principle, it would be impossible to navigate the challenges generated by unsolicited information in Case Two. Disclosure to W could harm H (forbidden by Rule 2), but non-disclosure to W could be interpreted as putting W at great risk of being deprived of the goods of life, that is, of living a virus-free life (forbidden by Rule 5), and at risk of death (forbidden by Rule 1). Herein both disclosure and non-disclosure seem to be partly supported and partly prohibited by the same principle. Finally, one may also ask: Are there some standard criteria for determining overall net benefit; or do some standard criteria exist to determine when a wrongful thwarting, defeating or setting back of someone‟s interests has occurred? Is there a universally accepted standard criterion for harm? How would a psychopath define harm? And this leads us to an important conclusion: that harm may in fact be a relative term. Thus, the description of harm provided by Beauchamp and Childress (2001) is thoroughly vague without specification in a particular context or set of circumstances, and without reference to subjective perspectives which differ from one person to another: what a hedonist considers as harmful will be different from what a masochist considers harm.

For this reason, in a dilemma such as those generated by unsolicited information, it may be difficult to determine what exactly will lead to the wrongful thwarting, defeating and setting back J‟s interests: disclosure or non-disclosure. This is because we do not always know what other people‟s real interests are. An inability to predict what a patient may likely consider harmful – disclosure or non-disclosure - can also result in moral distress for a physician. In

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other words, interests are subjective values; and they vary from one person to another; what J, for example in Case One, will say constitutes harm will be different from the physician‟s conception of the same. In addition to this, harm may also depend on context. For example, while killing – as specified in the moral rules supported by the principle of non-maleficence – may be considered morally reprehensible in some cases, in other cases, killing such as physician-assisted dying, may be considered justifiable if certain conditions are met. These are some of the ethical difficulties the principle of non-maleficence faces. I shall turn now to the principle of justice.