VENTA DE SERVICIOS

The duty of care in the physician-patient relationship, as well as the duty to rescue discussed in the second chapter of this work, is based on this principle. It is also possible to link the duty to warn to this principle, when warning is considered one way of providing beneficial care to patients, for example, warning a diabetic patient about the dangers of consuming chocolate.

The term beneficence – from bene, meaning „good‟, and facere, meaning „to do‟; thus, to do good – is defined by Beauchamp and Childress (2001: 166), as “an action done to benefit others”. By extension, the duty of beneficence implies the moral obligation to act for the

59 _{To recap, in Case Two, a physician discovers an information about H's HIV seroconversion which would be} of great health benefit to his Wife, W. But this physician cannot inform W about this information without breaching H's confidentiality. Both W and H are his patients.

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benefit of others. Herein, Beauchamp and Childress (2001: 166) distinguish between acts of beneficence and the principle of beneficence. Not all acts of beneficence, they argue, are obligatory. For example, a man walking down the street is not obliged to provide assistance to an accident victim. But the principle of beneficence establishes an obligation for a health professional – as is contained in the Hippocratic Oath – to benefit their patients according to their best judgment and to abstain from actions that may injure them in any way: physically, morally and mentally (Munyaradzi, 2012). This is also the sense in which the Belmont Report understands this term – that is, as an obligation to maximize possible benefits and minimize harm.

In Beauchamp and Childress‟s Principle of Biomedical Ethics (2001), the principle of beneficence is context specific; it only arises in the context of special relationships or relationships of close proximity (for example, relationships between parents and children, between friends, and between doctors and their patients). The obligation of beneficence also arises in contractual relationships – the contractual relationship between the physician and patient, for example, creates a role-specific obligation of beneficence for the physician to act in the patient‟s best health interest. Finally, this obligation exists in the context of a specific commitment, such as promise-making (Beauchamp and Childress, 2001: 169-173). For example, one who has promised to help others further their important and legitimate interests has an obligation to fulfill such a promise.

Beauchamp and Childress highlight specific conditions – akin to those relevant to the duty to rescue – which must be present in order for an obligation of beneficence to exist. According to them, X has an obligation of beneficence to Y, if and only if:

i) Y is at risk of significant loss of or damage to life or health or some other major interest ii) X‟s action is needed (singly or in concert with others) to prevent this loss or damage iii) X‟s action (singly or in concert with others) has a high probability of preventing it iv) X‟s action would not present significant risks, costs, or burdens to X

v) The benefit to Y can be expected to gain outweighs any harms, costs, or burdens that X is likely to incur (2001: 171).

For example, in the case of a man walking down the road and coming across an accident victim, if all five conditions for the obligation of beneficence exist, according to Beauchamp and Childress (2001: 175), then an obligation of beneficence exists, otherwise he would not be under an obligation to provide help to the accident victim.

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But there may be some difficulties involved in applying this principle to manage dilemmas such as those generated by unsolicited information. Case Two presents an example where all the conditions are met: P has close proximity to W; W is at risk of harm if she contracts the virus; and P‟s action is required to prevent this damage from happening. If P notifies W, there is a high probability that this damage will not result; and notification does not present any significant personal risk to P. Finally, benefits from partner notification to W outweigh whatever burden will come to P. Yet the obligation of beneficence with respect to W cannot be fulfilled by P since he has a similar obligation of beneficence to H, who is also his patient; and for whom disclosure can cause more harm than good.

Moreover, specific moral rules (Beauchamp and Childress, 2001: 167) supported by the principle of beneficence also make it impossible for P to honour his obligation of beneficence to W and H at the same time. These moral rules include: protecting and defending the rights of others (of H, to whom we can expect more harm than good to accrue; and of W, who would benefit from notification); to prevent harm from occurring (to H and W); and finally, to remove conditions – in this situation partner notification or non-notification – that will cause harm (to W and H respectively). Herein, this moral principle will effectively lead to another catch 22 situation, or to distress arising from a professional‟s inability to fulfill an obligation to one patient without failing in a similar obligation to another patient.

Now someone may advance the view that the principle of beneficence solves the dilemma by requiring others to maximize benefits. Surely, in this context the principle would support telling W, as this prevents a very great harm to W, which outweighs any effect on H (or indeed, P). I will respond to this by pointing out that since both H and W are P‟s patients, sufficient proximity exists not only between P and W, but also between P and H; thus, P has a duty of care to both H and W. Following the sufficient proximity standard, P is legally required not only to apply the requisite knowledge to provide care to W by preventing harm to her, but also to H by preventing harm to him, such as psychological harm that can result from telling W. This is effectively the catch 22 situation that can generate distress for a physician. Moreover, an argument in favour of maximizing benefits to W, based on the principle of beneficence, faces another difficulty. As stated in the previous chapter, medical confidentiality is widely considered to encourage patients to get tested for HIV/AIDS. Individuals may refuse to get tested if they realize that their partners will be notified or their contacts traced. Thus, notifying W of H‟s HIV seroconversion can lead to negative consequences, since it can greatly jeopardize the global effort at stopping the spread of

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HIV/AIDS. A risk/benefit calculation may reveal that benefit brought about by the global effort to stop the spread of HIV/AIDS would outweigh the benefit to W and that therefore, from a consequentialist perspective, this would be ill-advised.

Other specific moral rules implied by the principle of beneficence include: to help persons with disabilities and to rescue persons in danger. Following these rules, as well as the differentiation between acts of beneficence and the principle of beneficence, Beauchamp and Childress (2001: 165) identify two norms in the principle of beneficence: positive beneficence and utility. Positive beneficence requires agents to prevent and remove harms such as removing harm from W and H, in the second case. The duty of care in physician- patient relationship, discussed in the second chapter, is based on this norm.

Utility, on the other hand, asks agents to produce the most overall benefit or best result, by carefully weighing potential advantages and risks inherent in a given moral action. Herein, we must differentiate utility in Beauchamp and Childress‟s Principle of Biomedical Ethics and the classical utilitarian view of the same. In Utilitarianism, utility or the greatest happiness principle is taken as an absolute or a preeminent principle for evaluating the morality of an action. To this end, actions are right to the extent that they promote happiness for all creatures, and wrong if they cause the reverse. However, in Beauchamp and Childress‟s (2001: 166) formulation of the same, utility is not absolute, but only limited to specifying probable outcomes in order to achieve the best result. This is consistent with their argument that no principle has prior or overriding importance: sometimes utility may be trumped by positive beneficence, or by the need to remove harm to patients, or to respect a patient‟s right to self-determination. Consider the example of a patient in a coma: harvesting his organs to save five lives is a necessary and sufficient condition to justify transplantation with or without the donor‟s consent, under classic utilitarianism. Even if the patient has indicated his preference not to donate, a surgeon is justified in overriding this preference if this would save more lives according to this theory. However, for Beauchamp and Childress, utility is not absolute; it is not a sufficient condition for justifying an action. Utility could be trumped by a patient‟s rights, such as the right to self-determination. A physician is obliged to honour a patient‟s wishes, under this view, even if this will omission will indirectly lead to the death of five others.

A general overview of Beauchamp and Childress‟s (2001) formulation of the principle of beneficence gives us the impression that this principle is an outcome-seeking, result-seeking,

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benefit-seeking principle. It is doubtful whether an outcome-seeking or benefit-seeking principle would be of any relevance in a situation – such as those that arise with regard to unsolicited information – where outcomes are largely unpredictable, and therefore an attempt to apply this principle, in light of an inability to determine in advance the outcome of a decision, could lead to emotions such as confusion and frustration. For example, it is largely unpredictable how J in the first case would react to the news that he has been transfused. For this reason, we cannot be sure whether concealment is a better approach, based on the principle of beneficence, as the outcome of concealment is unpredictable.

Moreover, how does the physician evaluate utility? As previously stated, utility is sometimes distinguished as a libertarian principle because a patient‟s judgement about what would lead to his health benefit cannot be truly informed when such a judgement is based on lies or incomplete information. Hence, disclosure is supported by utility, at least for the patient. As Edwin (2008: 158) puts it, “patients rely on doctors to provide them with the information on which they can base decisions about their health”. Disclosure is key to a patient‟s governance of his care. To assess utility, Beauchamp and Childress (2001: 195-214) propose cost- effective analysis, cost-benefit analysis and risk-benefit analysis. Benefits must outweigh risks or costs. With this emphasis on results and outcomes, the principle of beneficence carries with it some risks. For example, in the event that a patient‟s health condition has become problematic, or if a patient is no longer responding to treatment, a physician will be justified in ending his relationship with such a patient and applying his medical knowledge and expertise to other patients, who are more likely to benefit from his expertise. In other words, on the basis of this principle (beneficence), a physician will be justified in abruptly ending his relationship with a patient if he judges that his expertise would yield more benefits in other relationships.

Finally, applying the principle of beneficence to address the issues around unsolicited information, such as those generated by the two cases, is also open to abuse by the physician or medical team. In most cases, the risk-benefit analysis – or cost-benefit analysis – is done by the physician with little or no consultation with the patient. In other words, cost-benefit analysis is mostly at the discretion of the physician or medical team with little or no input from the patient, and this is specifically the case with regard to ethical issues around unsolicited information, where it is difficult to consult with the patient about the burdens or benefits that disclosure of information would impose, without revealing such information. For example, how does one consult J in a risk-benefit analysis, without conveying the truth

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about the transfusion? One is left to conclude here that this analysis is best carried out by excluding J. Similar to the weaknesses already identified with the argument put forward by clinical empiricists in the second chapter, one may ask; who is in the best position to determine what constitutes benefits or risks for the patient: the physician or patient? It is doubtful that a risk-benefit analysis which excludes the input of a patient, who would be impacted by the same, can truly lead to a state of pareto efficiency where the patient is better- off.