Faux Ethics and the Ethical Community

a new ethics based on performance language and the participation of all affected by the consequences of actions is necessary; based on an article in the Journal of the American College of Dentists. (1 credit hour)

Learning Objectives:

After completing the course, participants will be able to:

  • Explain the affinity between the paternalistic principles approach to ethics and the historical development of the profession
  • List and illustrate three common problems with the principles approach to ethics
  • Define and explain discursive or community-based ethics
  • Give examples of some of the rules of speaking in the discursive or community-based approach to ethics

Please Review the Following Material:

The next quarter century in the dental profession will involve much wrestling with the consequences of the past fifty years of success. American dentistry offers better care, to more people, with more choice than at any time, anywhere. DMF and edentulism are dropping like rocks while orthodontics for adults and cosmetic dentistry are being sought by five and ten times as many as only thirty years ago (Chambers, 1995a; Journal of Dental Research, 1996). Dentists are well respected as a profession and have done marvelously financially. From 1990 to 1995, the Consumer Price Index rose by 17%; costs for oral health care rose by 33% during the same period (Spaeth, 1997).

Living With the Consequences of Post Success—A Challenge

A rhetoric of ethics has grown up around this success in dentistry. The shorthand version is “treat every patient as though he or she were your son or daughter.” It is an ethic anchored in the principles of the beneficence and paternalism. This system has worked well when the expertise and skill of the profession have been used to relieve the burdens of the caries, periodontal diseases, and malocclusion.

But the historical roots of this tradition contain limitations as well as strengths. First, the ethical dental tradition is incomplete. The operative stem, “treat your patients,” reveals this. Dentists think first, and often only, of patients. There is much dental disease that never comes to the dental office. The most recent NHANES data show that 70% of caries and its consequences among children in this country are in only 20% of mouths (Drury, Winn, Snowden, Kingman, Kleinman, & Lewis, 1996); and these tend not to be patients in any dental practice. In fact, our system gives the most care to those who need it the least The dentist-patient relationship is based more on patterns of health care seeking than oral health care need. It may be more proper to speak of an ethic of dental practice than an ethic of oral health.

The historical dental ethic is also incomplete in the sense of focusing predominantly on treatment. Dentists tend not to serve patients, to heal them, or to work with them; they treat them. Dentistry is conceptualized in terms of procedure codes—five-digit, computerized, universally accepted metrics for quantifying the delivery of dental services and claiming reimbursement. When dentistry is defined as a pattern of treatment codes, the major decisions are picking procedures that can be justified and doing adequate or better than adequate technical work.

The success of dentistry in the last fifty years has also led to inconsistency in its views about what is good. The recent Reader’s Digest article (Ecenbarger, 1997) told the public what the profession has known for some time (Bader & Shugars, 1995): dental treatment cannot be determined completely by the objective oral condition or the patients’ personal preferences. There was a time, not that many generations ago when choice was limited by a combination of three factors: (a) frank disease far in excess of our capacity to treat it, (b) limited technology, and (c) an uninformed public. Paternalism, beneficence, and defining quality in terms of technical skill were all appropriate under those conditions. But these factors have given way to choice, ambiguity, and inconsistency.

It does not require unnatural perspicacity to predict that the short range future of dentistry will include research and technology developments that further expand treatment alternatives, more forgiving dental materials and less forgiving dental patients, demand growing away from need for dental service, persistent pockets of severe oral health care neglect, and more complex dental markets with payers and brokers exhibiting greater concern for the results of what dentists do and less with how they accomplish it. The ethical rhetoric of dentistry that grew up in the 1930s or the 1960s might have been appropriate for those times. It will not serve us in the future.

There is a second sense in which the history of dentistry defines the challenges it must face in the future. Success has laid the foundation of tension within the profession. The image of a solo practitioner owning his own practice and doing most of the dentistry, working with a single dental assistant, and sharing a common background and personal and professional goals with his colleagues is still idealized, even though it is an image more apt for the 1950s than for today. In the years since then the following changes have taken place. (a) The proportion of dentists’ time spent in fixed and removable prosthodontics and operative dentistry has changed from 75% to less than 50% (Chambers, 1985). (b) Dentists are working approximately 15% fewer hours per week (Chambers, 1995b). (c) The number of assistants and hygienists employed has more than quadrupled; rising fairly constantly from the early ’60s to the mid’80s. (d) In the past ten years the number of dentists working as employees of other dentists doubled (last year, according to ADA statistics, 60% of dentists in practice one year after graduation worked as employees or associates for other dentists and another 15% worked as independent contractors) (American Dental Association, 1997a). (e) A little over one-third of students in dental schools are now women and almost four in ten dental students were born outside the United States (American Dental Association, 1997b). (f) The fastest growing form of dental practice is the large group practice. (g) Nationwide, there are about two dozen chains of dental offices that are publicly owned and traded on the stock market (National Association of Dental Plans, 1996).

A rhetoric of ethics has grown up around the success in dentistry.

These factors taken together paint a picture of a profession evolving from relative undifferentiation—where each dentist was interchangeable with others—to one of complexity, specialization of function, and diversity. This evolution was not forced upon the profession; it was chosen in a series of incremental responses. While the average income of dentists has risen faster than the economy generally, the proportion of oral health care dollars going in to dentists’ pockets has continued to shrink, dramatically so for recent graduates. The game is opening up.

Dentistry has gone through a transformation from a profession where the dentist did the work to a profession where dentists predominantly manage the work. It is quite likely that the future involves yet another shift from dentists controlling procedures to becoming the dominant party in an oral health care system.

If the editorials in dentistry are any indication, the current crisis in the profession is one of voice. Formerly, the word of the dentist in dental matters was the first and the last word. Now patients have something to say. So do third parties and even large payers. OSHA and the FTC—to say nothing of the hygienists, assistants, employee dentists, and minority groups who have been created within the profession—all want to comment on oral health care. These multiple voices, each grounded in a different set of self interests and each claiming some legitimacy, alter the very nature of ethical analysis in the profession. As difficult as it may be for relatively like minded professionals to agree amongst themselves about how to treat other people, allowing these other voices to be present at the table is an ethical issue of another order of magnitude.

One of the great problems facing American society as a whole today is learning how to talk with people who live in worlds that are not the same as ours. Dentistry is just discovering that it has this problem, too.

If there is any predictive validity in the immediate future I have sketched for the profession then our traditional approach to ethics is wanting. Principles and codes are inherently incomplete and inconsistent. This fact is explicitly acknowledged in the introduction to the American Dental Association Principles of Ethics and Code of Professional Conduct. Professional codes disenfranchise significant members of the community and underplay the consequences of ethical action. We must address ourselves to fashioning a workable alternative. In the remainder of this paper, I would like to accomplish two things; first to more fully expose the poverty of the principles approach to ethics and second to introduce one possible alternative—the ethical community which stems from the post-modem ethical theory associated with discursive ethics.

The Principles Approach —A Critique

The most common approach to ethical analysis in dentistry has become the principles approach (Hasagawa & Matthews, 1996). In this method a set of abstract ideals such as veracity, justice, autonomy, and beneficence, is used as a background for analyzing alternative courses of action. Those actions which are thought to characterize such principles are ethically preferred. The major textbooks available to health professionals present this approach, although privately many professionals working in the field of ethics are aware of its shortcomings (Beauchamp & Childress, 1994; Ozar & Sokol, 1994; Weinstein, 1993). The principles approach is the view tested on the National Dental Board Examinations. Several professional groups have formalized variations on ethical principles as a code of ethics for their members.

As an a educational exercise or a way of taking a position, there is little wrong with ethical principles; as a guide to action, however, they are not fail safe. As just one example of the gap between ethical principles and ethical action, consider the survey of New York City dentists reported recently in the Journal of the American College of Dentists (Sadowsky & Kunzel, 1997). Of those dentists who strongly disagreed with the statement “Dentists are ethically obligated to treat HIV+ patients,” over 40% said they are nonetheless willing to provide such treatment in their own offices. In contrast, more than 10% who strongly proclaim the ethical principle were unwilling to put it into action.

But the indeterminate relationship between ethical principles and ethical action runs deeper than empiricism would indicate. Consider the standard case of removing a sound tooth that is a staple in many dental school ethics courses. Using the principle of patient autonomy we might say, “Yes, remove it if that is what the patient wishes.” On the other hand, the dentist’s autonomy must be honored and he or she might say, “That is not the kind of practice I wish to engage in.” Or let’s look at the principle of nonmalfeasance. One dentist would leave the tooth intact because replacements are always inferior substitutes for the natural dentition; another would have the tooth out because it has no opposing number and is superfluous in the dentition, or even on some theory that it may pose problems eventually. One could refuse to treat the patient because it would place the dentist at unnecessary risk; the other would argue that the patient is determined to have the tooth removed and he or she had better do so to protect the patient from some unscrupulous and probably undertrained colleague.

Dental treatment cannot be determined completely by the objective oral condition or patient’s personal preferences.

What have we learned from this exercise in using ethical principles? (a) Most of the lively discussions in ethics courses that use cases probably come from students making different assumptions about vary abbreviated narratives rather then the dynamics of ethical principles. (b) The use of ethical principles depends heavily on the interpretations of details of implementation rather than the principles themselves. (c) With a little ingenuity, virtually any action can be justified by some ethical principle. (d) The same principle can be used to justify diverse and even contradictory actions. Those who might be tempted to accuse me of sophistry on this point are referred to Plato’s dialogue Euthyphro. Socrates is brilliant as usual in calling out alternative principles for the young man who feels duty-bound to hand over his father for causing the death of a slave through some sort of negligence. The young man and countless generations of philosophy students since remain completely baffled. In the end, Plato leaves the issue unsettled; not even he could make the principles work in a practical case.

So far, the principles approach to ethics has been challenged on empirical and logical grounds. But its flaws lie even deeper. Post-modem philosophers would throw it out altogether as being an impractical intellectual exercise.

The span from Descartes to Kant (roughly 1600 to 1800) is referred to as the “modern” era in intellectual thought. Post-moderns challenge many of the assumptions in that tradition, in particular the belief that the world is objectively given and can be known in any rational and comprehensive fashion (Bernstein, 1983; Hofstadter, 1979; McCarthy, 1993). Quantum mechanics and relativity theory have shown that Newton’s world is only an approximation (Popper, 1959). Heissenberg proved that one can know the location of an atom or its direction of travel, but not both at the same time. An economist, Kenneth Arrow proved mathematically that when two or more people must make a choice between alternatives which have multiple attributes it is impossible to formulate a rule which is “fair” in some objective sense (Arrow, 1951). And perhaps the most damaging argument was contributed by the Princeton mathematician Kurt Godel who studied simple number systems, in particular the positive integers. He proved that it is possible to have a number system which is complete but inconsistent or a number system that is consistent but incomplete; but it impossible to have a system which is both (Nagel & Newman, 1964).

Although I can lift a chair that is empty or one that someone else is sitting in, I can’t get very far lifting myself. The principles approach to ethics suffers from something like this limitation. Assuming objectivity makes interesting theory, but is open to inconsistent action when placed in context. Although we can imagine ethics in a universal context, we cannot practice it in such a world.

Inconsistency is also a well recognized consequence of principles of ethics. In fact, ethicists almost relish developing what are known as dilemmas. The technical definition of a dilemma is that two assumptions in one’s rational system lead to contradictory actions–dilemmas are inadequacies in our understanding, not conflicts in the world. Dilemmas have a training role in pointing out inconsistencies among our ethical principles. At a deeper level they have a role in revealing that ethics based on principles is inherently inconsistent. The ethicist’s joy in presenting dilemmas reminds me of the Harvard economist John Kenneth Galbraith’s observation that “Economics is very useful, principally as a form of employment for economists.”

Some who ground their teaching in principles fall back on something like a casuist approach. They say that students who have been trained to view ethical situations from the perspective of multiple principles are better equipped to function as professionals. The teacher in me finds this a reassuring argument. The philosopher remains skeptical. That statement–learning to use a set of incomplete or inconsistent principles promotes ethical thinking–must be a new principle, assumed on faith. I certainly don’t know how one would test such a theory without having a secret method for differentiating the ethical individuals from the defective ones.

The dangers of a principles approach to ethics extend beyond philosophy. I am afraid that what happens on a daily basis is a confusion between self interests and ethical principles. Citing an ethical principle that is consistent with the behavior one wishes to engage in does not make that behavior ethical. This follows from the demonstration that every action and often its contrary actions can be justified under certain circumstances by some ethical principle. Although I have not thought this through in detail, I am convinced that there is a difference between ethical justification and ethical action.

The most pernicious form of ethical justification would be called faux ethics. This occurs when an ethical principle is cited as justification for one’s self-interested action in such a way that the self interest is made to appear as though it is part of the principle. Dentists who object to managed care for financial reasons but editorialize about patient autonomy are guilty of faux ethics (ADA Council on Ethics, Bylaws & Judicial Affairs, 1995). Hygienists who embrace managed care in the name of patient autonomy while seeking independent practice (American Dental Hygienists’ Association, 1996) are also guilty of faux ethics. The state boards of examiners who regulate the supply of dentists by varying the passing standards while referencing protection of the public are also guilty of faux ethics.

Faux ethics is grounded in a logical fallacy. It goes something like this: “All ethical people do x” (major premise), “I do x” (minor premise), therefore “I am ethical” (conclusion). (The correct form of the syllogism is: All ethical people do x, I am ethical, therefore I do x.)

Before considering a possible alternative to ethical principles as a foundation for a future ethics of oral health, one more confusion in the traditional view must be considered. I ‘think it is natural that most dentists, hygienists, and others in the profession think of individuals as being ethical or otherwise. The individual is considered the unit of analysis and the ethical decision is ultimately a matter of personal conscience.

A series of studies by Hartshorne and May (1928-30) casts significant doubt on this assumption. These researchers found that a child would engage in theft or deception in one case but not in another, while other children would have different checkered patterns of ethical behavior. While this research is almost seventy years old, human nature is unlikely to have changed so much as to invalidate the general concept. Rather than adopting the misleading way of saying that a person is generally ethical and leaving others to guess which situations might be covered, it is more accurate to say that individual acts (not individuals themselves) are either ethical or not ethical. The minor premise in the correct syllogism that could save principle-based ethics—I am ethical—may thus turn out to be a theoretical construct more than a practical reality.

The Ethical Community—An Invitation

A principles approach better suited the profession fifty years ago than it does today, and may even become misleading in the future. We need a new way of talking about ethics that reflects the diversity and interdependence that are emerging within dentistry. We need language that reflects responsibility within community rather than individual rectitude.

One view that holds some promise for being useful in this regard is the post-modem, discursive view of ethics advocated by Habermas (1984; 1993) and others. I will only present the briefest outline of this philosophy, having addressed it in some detail in a previous publication (Chambers, 1996).

One of the great problems facing American society as a whole today is learning how to talk with people who live in worlds that are not the some as ours.

The problem with the principles approach to ethics is that our actions and their justification exist in two different worlds. That is why endorsement of principles may not alter action, why actions and their opposites can both be justified by a single principle, and why principles can be used to obscure self interests, as in the case of faux ethics. Discursive ethicists would like to get both the action and the justification on the table at the same time. The key to accomplishing this is to realize that much of the language we use to discuss ethical issues is in fact a kind of action itself. For example, perjury is as much an illegal action as is battery. A minister does not identify that a couple is married—the marriage comes into being because it is pronounced to exist. An agreement to buy or sell creates a legal liability. A diagnosis creates a treatable entity, provided that the diagnosis is rendered by someone licensed to do so. In the post-modem view, promises are ethical actions.

In all these cases, language does more than describe, it creates relationships between people and changes the future (Alston, 1964; Austin, 1965; Wittgenstein, 1966). There are promises inherent in a great deal of what we say to each other. Even factual statements can be considered performance language, carrying an implied promise that one would be able to back up the factual claim if challenged to do so. That is an important part of the scientific community in which we live and deserves to be explored in the context of continuing education courses and many product and procedure claims.

The move from recognizing language as action (promises that create relationships) to ethics grounded in language is relatively straight forward. An ethical community is one whose members have agreed to certain rules about language as a precondition for membership in the community. This agreement need not be formal or even conscious. Some of these fundamental rules of language within community have been identified by Habermas, by one of his students Robert Alexy(1978), and others. In order to show how this system works, I will mention eleven such performance language rules which are variations of those developed by postmodern thinkers. The full implication of this performance language is a project yet to be worked out.

  1. One may assert only what one is prepared to justify.

This is the fundamental performance language claim. As a condition for being allowed to speak in a community we must be prepared to redeem any claim we make. This might be so simple as having another piece of pie after complimenting the hostess on the first one or a willingness to discuss the radiographs when saying that a particular tooth is carious. It is not necessary to justify everything we say, but there is an implication that we are prepared to do so if necessary in order to show we are trustworthy members of the community.

  1. Agreement among individuals is demonstrated by their assent to the consequences of a course of action.

This is a paraphrase Habermas’ famous universality principle (1993) which he offers as an alternative to the Golden Rule. Individuals agree to a course of action that affects them if they accept the likely consequences that result from such action. Universality is a condition of ethical behavior. The tooth can be removed ethically if the patient, the dentist, the patient’s parents, the third party carrier, the community, and others all agree to accept the consequences of removing the tooth. Because it is consequences that are at stake and not the action itself, considerable flexibility exists in ethical behavior, but disclosure and informed consent cannot be avoided.

  1. All who are affected by an action have a right to speak to it.

The universality principle naturally leads to this third rule of performance language. Deciding what someone else wants based on our own values, except in the case of minors and others with impaired capacity, is inherently unethical. The paternalism of “treat all patients as though they were members of your family” violates this condition for ethical community. Codes of ethics made by dentists for dentists create an unrealistically narrow ethical community.

  1. Actions that are not performance language should be interpreted consistent with one’s promises.

Although performance language creates the ethical community, all action reflects on its members. One can be called upon to justify any of ones actions in addition to one’s promises_ This is simply a fancy way of saying that those who let it be assumed that they have made the promises that define membership in an ethical community are expected to behave accordingly.

  1. The meaning of all actions is determined within the context of the ethical community.

Ethics is not a matter of individual conscience. Too many despots and sociopaths who knew they were right remind us of the fallacy of that thinking. Descartes was among the first modem thinkers, and his famous cogito (I think, therefore I am) was refuted by the post-modems who simply ask “Who cares?”

  1. All members of the community have the same ethical status.

There are no ethically privileged positions. Higher levels of knowledge or training do not translate into differential ethical status. It is the consequences of action we are called to agree on, not their rational justification. Dentists, patients, and third parties are on even ground in choosing among alternative outcomes of dental care.

  1. If something is held to be true because it follows from a certain method or logic, anything else that follows from the same method or logic must also be accepted as true.

Principles and codes are inherently incomplete and inconsistent.

This is a paraphrase of the truth condition proposed by the father of American Pragmatism, C.S. Pierce. It is the foundation for scientific and professional communities. What is “true” in dentistry, for example, is not what we have discovered of the objective world but what we as a community of researchers and practitioners have agreed to be the most robust interpretations of our common experiences based on the methods we have agreed to. We are prepared to substitute new truth as it emerges from these methods. We attack quacks and fanatics based on their inadequate methods, and are often surprised to find out that the public (which does not share our methodological standards) still hesitates between conflicting “truths” regarding fluoride, amalgam, etc.

The last four ethical performance language statements are offered without commentary:

  1. If a course of action A is appropriate in condition C, then A is also appropriate in any other conditions agreed to be functionally equivalent to C.
  2. All members of an ethical community can be called upon to just the behavior of any member.
  3. All members of an ethical community are elevated or damaged by the behavior of any member.
  4. Individuals who show a pattern of behavior inconsistent with the ethical community are no longer entitled to its benefits.

A professional ethics based on performance language and postmodernism would look different from one based on principles such as beneficence and paternalism. The guiding forces would be generated within the group—not discovered (or subscribed to) by individuals. Participation in the ethical community is not based on superior knowledge or purported superior virtue. Its qualifications are two in number: (a) being affected by the actions of others and (b) willingness to honor the speech conventions of the group.

On this view, the character of ethical issues shifts from dilemmas to conflict and reconstruction. Ethical dilemmas take place within a group that subscribes to a set of principles. They are a sign of the inconsistent and incomplete nature of the principles and the inability to engage groups that do not subscribe to the same principles. Conflict, on the other hand, is a useful term for describing a mutual recognition that inconsistent courses of action flow from diverse value systems. These “different worlds” might be separate groups (such as dentists, patients, allied professionals, or managed care brokers) or even subgroups (such as young dentists who work for other dentists or Korean-American dentists). The California Dental Association just released a study of the difference between concerns of dentists and patients (Boyd, 1997). Dentists are more concerned than their patients are about managed care and treating patient fear; patients, more than anything else want the cost of dental care lowered. Under these circumstances, the ethical principle “put the patient’s interest first” is simply untenable. Dentists are not expected to lower their costs just because that is what patients say they want above all else. The alternatives are “put the dentist’s definition of the patient’s interests first (paternalism)” or “let’s talk about it” (discursive ethics).

A new ethics based on performance language and the participation of all affected by the consequences of actions is necessary.

Ethical reconstruction is the never-ending process of working through conflict by seeking common ground in performance language among all those affected. It is the work of creating useful ethical communities. And, unless I have done my analysis wrong, the issues bf consistency and completeness are made moot in this perspective. Further, there is no issue of conflict between self-interest and ethical principles.

The system of ethics that served the profession fifty years ago and now dominates our recently discovered ethical awareness will not serve this future well. A new ethics based on performance language and the participation of all affected by the consequences of actions is necessary. Much work is needed—and it is new work—to construct the ethical community for oral health.

References

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American Dental Association (1997b). 1995/96 Survey of Predoctoral Dental Educational Institutions: Academic Programs, Enrollment and Graduates, Vol. 1. Chicago, IL: The Association.

ADA Council on Ethics, Bylaws & Judicial Affairs (1995). Defining managed care ethics’ primary ethical duty—to put the patient’s welfare first. ADA News, 26(3), 12.

American Dental Hygienists’ Association (1996). Position paper on managed care. Chicago, IL: The Association.

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Chambers, D.W. (1995a). A profession starved for policy [Editorial]. Journal of the American College of Dentists, 62, Spring, 24.

Chambers, D.W. (1995b). The verticalization of dentistry [Editorial]. Journal of the American College of Dentists, 62, Autumn, 25.

Chambers, D.W. (1996). Looking for virtue in a virtuous society—discursive ethics and dental managed care. Journal of the American College of Dentists, 63, Winter, 39-42.

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Hasagawa, T.K., Jr., and Matthews, M., Jr. (1996). Principles of dental ethics and the ethics of managed care. Journal of the American College of Dentists, 63, Winter, 24-26.

Hofstadter, D.R. (1979). Godei Escher, Bach: an eternal golden braid. New York, NY: Vintage Books.

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Sadowsky, D., and Kunzel, C. (1997). Dentists’ HIV-related ethicality: an empirical test. Journal of the American College of Dentists,64, Spring, 27-29.

Spaeth, D. (1997). 1996 Figures show slowing of dental cost rise. ADA News, 28(20), 1, 18.

Weinstein, B.D. (1993). Dental ethics. Philadelphia, PA: Lea and Febiger.

Wittgenstein, L. (1966). The philosophical investigations. Edited by G. Pitcher. New York, NY: Doubleday.

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