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Title: Professional Ethics


1
Professional Ethics
  • Dr. Charles Hinkley

2
Greetings Students, Welcome to Professional
Ethics! Virtually everyone has some idea about
what it means to be ethical and what it means to
be a professional. Ethics is the study of right
and wrong, good and bad, virtue and vice. The
professions are honored and authoritative
occupations devoted to the public good. Such
professions include law, medicine, engineering,
teaching, the ministry, politics, business, and
journalism. Professional ethics, then, covers a
broad range of moral issues related to the duties
of professionals such as doctors and nurses,
attorneys and judges, business leaders,
politicians, and other professionals and the
institutions and systems which shape the
professions. In this course, we will focus on
law, business, and politics. We have a good array
of subjects to analyze, and I look forward to
learning from the books and our
discussions. Sincerely,
Dr. Charles Hinkley
3
Syllabus
Instructor Dr. Charles Hinkley Office hours
Psychology Bldg. Rm. 134 TTh 1000-1100 and by
appointment   Required Textbooks Luizzi,
Vincent, A Case for Legal Ethics Legal Ethics As
a Source for a Universal Ethic, SUNY Press,
1993. Zitrin, Richard and Carol M. Langford, The
Moral Compass of the American Lawyer, Ballantine
Books, 1999. Course Description Philosophy is
the intelligent exploration of lifes most
profound questions. Ethics is a branch of
philosophy that addresses the nature of moral
goodness, virtue and vice, good and evil, and
right and wrong. Ethics is not merely a
disinterested search for moral truths but an
honest and often passionate quest to live well in
a complex and changing world. Professional ethics
focuses on the moral duties and virtues of
professionals traditionally, physicians and
nurses, attorneys, and people in business. Today,
professional ethics has expanded into many other
fields and most companies have ethics policies
covering such topics as sexual harassment,
discrimination, confidentiality, and informed
consent. We will focus on business, legal, and
political ethics.
4
Objectives By the end of this course, you will
have achieved three important goals. First, you
will be conversant about the major schools of
ethical thought and how they might apply to
concrete situations. Second, you will become a
better thinker and writer. Becoming a more
logical person involves clarifying words,
phrases, statements, and questions and
understanding the fundamentals of inductive and
deductive logic and fallacious thinking.
Moreover, specific instructions will be provided
to improve students sentence structure,
rhetoric, and defense of a thesis. Third, you
will gain insights about your beliefs, values,
doubts, and limitations. Specifically, you will
better judge your level of knowledge, more
intelligently interpret your moral experiences,
and better recognize sources of conflict and
resolutions to conflict. It is clear that
although we will focus on professional ethics,
the concepts that we learn apply to other facets
of life. Assignments and Grading Students are
required to write two 4-5 page essays, each worth
100 points. The final exam will be an in-class
essay worth 100 points. Class participation is
expected. Students who contribute to class
discussions impressively can receive 10
additional points towards their final grade.
Grades will not be curved, and there will be no
extra credit assignments. Any student found
guilty of academic dishonesty will receive an F
for the course. A 90-100 B 80-89
C 70-79 D 60-69 F
50-59 Attendance Attendance is required.
Absences will be considered unexcused without
sufficient reason (illness, funeral,
university-sanctioned event, etc.) presented by
the student. Students with more than two
unexcused absences will have their final grade
dropped one letter. Schedule Assignments will
be posted at the beginning of each class time.
Generally, we will read one chapter for each
class.
5
Professionalism
  • What are the characteristics
  • of a professional?

6
1) Expertise
Professionals such as physicians and attorneys
have specialized knowledge that requires several
years of study and training. Professionals
usually excel in academics, are among the few
accepted into advanced professional academic
programs, and must pass rigorous exams to be
licensed practitioners.
7
2) Honor and Prestige
Concomitant with their expertise, professionals
often hold prestigious and privileged offices
that command respect.
8
3) Autonomy
Autonomy means having the ability and authority
to make choices. The public regards professionals
as experts thus they have a high degree of
autonomy at the workplace. In other words,
professionals have a great degree of
decision-making power.
9
4) Public Good
Professionals serve an important social role in
making a good society. Ideally, attorneys are
dedicated to justice physicians to health
teachers to education journalists to truth, and
so forth. Although it is acceptable for
professionals to sell their services, the
virtuous professional is dedicated to serving an
important social role and to realizing or
furthering the goal of that profession.
10
Questions
What characteristics would you add to the meaning
of a professional?
Although not everyone at the workplace is a
professional, professional conduct is expected
from all employees in many organizations. Do you
think discussing personal matters (e.g. family
issues, or dating habits) is appropriate at work?
To what extent should supervisors and managers be
friends with subordinates and other managers and
supervisors? Is it appropriate to have drinks
after work with other employees?
What should be expected from all employees at
office parties?
11
Business
12
Globalization
Globalization refers to the increasing financial
and cultural interconnectedness among nations and
societies. The benefits of globalization include
more opportunities for trade and investment. The
burdens include outsourcing, the economic
exploitation of third-world citizens, and the
homogenization of culture.
13
Capitalism
Capitalism is an economic system based on
property rights. In capitalist societies
individuals have a right to own and profit from
owning private property. So, in capitalist
societies individuals have the right to own
businesses and natural resources (e.g. land). In
Marxist terms, capital is the means of production
such as businesses that produce goods and
services. Capitalist systems are also known as
free-market economies. A capitalist system
opposes the government ownership of industry.
Capitalism is known for providing individuals
with opportunities to gain wealth but with also
being exploitive.
14
Laissez-Faire Capitalism
Adam Smith is the intellectual father of
laissez-faire capitalism. Smith believed that
governments should not intervene too much in the
economy, and that people should have the right to
embark on and profit from their own ideas and
endeavors. Smith believed that people are
naturally egoistic or self interested and
acquisitive. We want to gain wealth. Smith
envisions a society where people will meet their
own needs and the needs of others if governments
do not impede people from profiting from their
work. The idea is that intelligent, industrious
people will develop goods and services that
satisfy peoples needs and desires. This system
does not need government intervention, but is
guided by the invisible hand of supply and demand.
15
Communism
Karl Marx is the intellectual father of
communism. Marx was writing in the mid to late
19th century where he witnessed the capitalist
exploitation of wage earners around the world.
According to Marx, capitalism is an oppressive
system, because capitalists exploit their workers
by providing meager wages and benefits and taking
the lions share of the profits for themselves.
Marx also believed that capitalism was
inefficient with its boom and bust cycle. This
problem is exemplified by stock market rises and
crashes. For Marx, workers (the proletarians)
should seize private property through revolution
property is to be communally owned. Communists
believe that the government should be more
proactive in planning economic development,
rather than relying on free enterprise to meet
needs. Communist societies are known for a more
egalitarian distribution of wealth but also for
limiting opportunities and for being
authoritarian.
16
Social Contract Theory
Social contract theory is one of the great
traditions of political philosophy in Great
Britain and the United States. The idea is that
political authority must be justified. Social
contract theorists believe that for a government
to be legitimate, the citizens must consent to be
governed. In other words, there must be a social
contract between those who govern and those who
are governed. The key question is, to what are
citizens consenting? Different theorists answer
this question differently. Thomas Hobbes believed
citizens consent to a powerful government in
exchange for security. John Locke, however,
argued that governments must protect natural
rights. Other notable social contract theorists
include Jean-Jacques Rousseau and John Rawls.
17
Distributive Justice
The issue of distributive justice pertains to how
a societys wealth should be distributed. Some
people believe that people are entitled to
whatever they rightfully (i.e. without theft or
violating peoples rights) gain in a free-market
economy. Given the enormous disparity in wealth,
others believe that the government should play a
role in redistributing wealth. Wealth can be
redistributed through taxation, raising the
minimum wage, and welfare programs.
18
Social Responsibility
Today, businesses are asked and pressured to be
socially responsible. There is even a niche in
personal finance known as socially responsible
investing. A socially responsible business should
attempt not to harm the environment and should
have a record of treating its workers well.
Socially responsible mutual funds might also
divest of tobacco companies or corporations that
use child labor.
19
McCain-Feingold
This bill sets out to reform campaign finance by
placing limits on soft moneymoney from
corporations, labor unions, and wealthy
individuals. The bill prohibits national
political parties from receiving unlimited
contributions for support of national elections.
The bill requires more disclosure of campaign
contributions and expenditures. The bill also
seeks to limit ads financed by corporations and
unions that are disguised to support particular
candidates. Finally, the bill would strengthen
laws prohibiting foreign nationals from
financially contributing to elections.
20
Pork-Barrel Politics
Pork barrel politics refers to congressional
representatives using federal funds or
manipulating legislation for their own
constituents at the expense of the nations
interest. When bills are proposed politicians
often will only support the legislation if
something is added to the bill that serves their
interest or their constituents interest.
21
Keynesian Economics
John Maynard Keynes believed that a mixed economy
is best. That is, free enterprise in combination
with government intervention is needed. Remember
that capitalism is characterized by a boom and
bust cycle. During an economic downturn
businesses typically institute layoffs and hiring
freezes. To combat rampant unemployment, Keynes
recommended government spending on programs, even
if that meant creating a deficit. Those
interested in balancing the federal budget will
find Keynesianism difficult to accept.
22
Supply-Side Economics
Supply-side economics is also known as
trickle-down theory. The idea is that the
government provides tax breaks for the wealthiest
Americans to boost the economy. Why? Because the
rich will then have more money to develop new
businesses, expand or renovate old businesses,
and invest in new technologies. These
entrepreneurial endeavors will create new jobs so
everyone in society ultimately benefits. By
embarking on new projects the wealth will trickle
down to middle and lower class Americans. Critics
claim that the middle and lower classes are not
likely to benefit from such tax breaks.
23
Monetarism
Monetarism is an economic philosophy developed by
Milton Friedman. Friedman believed that
governmental interventions, especially involving
the supply of money, did more harm than good.
Other economist had thought that more needed to
be introduced into the economy, because the
wealthy were saving their money instead of
embarking on new ventures that helped everyone.
Friedman believed that market forces would
eventually improve the economy. The supply of
money should be held constant unless it is
introduced to keep pace with the natural growth
of the economy. We cant just print more money to
combat poverty that just leads to inflation
(rising prices).
24
Doing/Allowing
The doing/allowing distinction is a fundamental
concept of ethics that is relevant to medical,
legal, and political issues. The heart of this
distinction is this all other things being
equal, doing harm is worse than allowing harm. An
application of this principle is that people can
be held legally liable for harming others but not
for failing to help, unless their job requires
them to help in some capacity (e.g. a doctor is
required to help his or her patients). This
concept is relevant in the light of Margaret
Thatchers claim that, You are not doing
anything against the poor by seeing that the top
people are paid well(p.23). The idea is that it
might be true that government and business are
not helping the poor, but they are not harming
them. The moral and legal significance of the
doing/allowing distinction is debatable.
25
Self Interest
Great philosophers such as Plato, David Hume,
Thomas Hobbes, and many others have claimed that
peoples self interest is a fundamental moral and
political problem. The fear is that people will
attempt to satisfy their own interest at the
expense of others. Hobbes and Adam Smith believed
that it is human nature to be selfish. Even when
philosophers believe that genuine altruism is
possible, there is still the problem that many
people will mistreat others for their own gain.
26
World Trade Organization (WTO)
The WTO is an international organization that
regulates trade between nations. The WTO attempts
to foster free enterprise by eliminating or
limiting taxes, tariffs, and laws that impede
trade. Supporters of the WTO argue that free
trade benefits all countries involved. Critics
claim that the WTOs purpose is to advance the
interests of multinational corporations.
Consequently, they claim that the WTO undermines
human rights, labor interests, and environmental
interests. Why? Because laws that protect rights,
the poor, and the environment are often regarded
as anti-business.
27
North American Free Trade Agreement (NAFTA)
NAFTA is an agreement among Canada, Mexico, and
the United State to remove barriers to trade.
Like the WTO, the goal was to foster business.
The hope was that NAFTA would create jobs, raise
living standards, protect the environment, and
transform Mexico from a third-world country into
a new market for American and Canadian exports.
Critics say that NAFTA isnt so much a trade
agreement as it is an investment agreement.
Critics maintain that the pursuit of profits has
resulted in relaxing laws and regulations that
protect our food supply, environment, and our
jobs. The bottom line is that foreign investors
now have more incentive to relocate factories and
to privatize public goods such as energy and
healthcare.
28
Questions
What does Hertz means by the silent takeover?
Do you believe corporations have too much power?
Should the minimum wage be raised? If so, by how
much?
Should citizens be entitled to a living wage?
Why do you think fewer than half of American
citizens vote in national elections?
29
Tort Reform
What is tort? What is a civil wrong? What is tort
reform? What is a contingency fee? What are the
reasons for defending tort reform? What are the
reasons for opposing tort reform? What changes
have been proposed?
30
What is a tort?
A tort is a civil wrong where a person seeks
compensation for damages from a person or
corporation alleged to have caused the damage.
The tort system refers to the judicial process
related to compensating victims who suffer
injuries from various accidents such as
automobile collisions and medical malpractice.
31
What is a civil wrong?
Civil law involves the judicial resolution of a
claim by one person against another person. Civil
law is codified by the legislature. In civil
proceedings the judges role is to apply the
existing laws to the facts of the case the judge
does not have an opportunity to interpret the
law. In these cases, a judge is not bound by
precedents set forth by other judges because in
these cases the judges do not make the law
according to their own interpretation. Instead,
these judges are bound by the existing statutes.
The civil law was developed to limit the power of
the judicial branch of government. Civil law is
contrasted with the criminal law where the state
prosecutes a person for criminal conduct. The
standards of evidence to prove a case differs in
civil and criminal proceedings. In civil
proceedings a case must be proven by the
preponderance of the evidence, whereas in
criminal proceeding a case must be proven beyond
a reasonable doubt.
32
What is tort reform?
Tort reform refers to proposals to limit the
number of lawsuits and the monetary amount a
victim can receive for damages.
33
What is a contingency fee?
If something is contingent is means that it
depends. So, a contingency fee means that the
client pays the attorney a fee depending on
whether the case is won and the settlement. In
this situation, the plaintiffs attorney must
bear the financial cost of preparing the case.
34
What are the reasons defending tort reform?
  • The current tort system encourages lawsuits,
    because lawyers and victims are hoping for huge
    settlements.
  • Suits against doctors are escalating the cost of
    medical malpractice insurance, thereby driving
    some doctors out of medical practice.

35
What are the reasons opposing tort reform?
  • Victims of accidents deserve to be compensated
    for damages.
  • The threat of lawsuits provides an incentive to
    avoid causing harm to others.

36
What changes have been proposed?
  • Limit non-economic damages (damages for pain and
    suffering) to 250,000.
  • Limit attorney fees. The suggestion is that the
    larger the compensation award, the less of a
    percentage the attorney should receive.
  • Allow members of the jury to consider benefits
    that victims have received through their
    insurance policies.
  • Require awards over 50,000 to be made in
    payments.

37
Questions
In general, do you support or oppose tort reform?
Clarify your reasons.
Why do Zitrin and Langford oppose tort reform?
What should be done with attorneys like Sam
Hammond?
38
Sexual Harassment
What is sexual harassment? What criteria are used
to judge whether conduct constitutes sexual
harassment? What laws pertain to sexual
harassment? What is Texas State Universitys
policy on sexual harassment? Why does sexual
harassment occur? Could your conduct be
interpreted as sexual harassment? What should
you do if you believe that you are being sexually
harassed?
39
What is sexual harassment?
Sexual harassment usually involves unwanted
verbal or physical behavior of a sexual nature
that interferes with a persons ability to
perform his or her work. Sexual harassment can be
a single severe incident or a series of incidents
that accumulate to create a hostile environment.
In a legal sense, sexual harassment means conduct
that discriminates against a person on the basis
of gender whether or not the discriminatory
conduct is of a sexual nature.
40
Quid pro quo sexual harassment involves an offer
of something for something. In these cases a
person guilty of sexual harassment offers some
benefit such as a position of employment, pay
raise, promotion, or better working conditions in
exchange for a sexual favor.   Hostile
environment harassment involves sexual conduct
that creates an intimidating, hostile, or
offensive work environment that interferes with a
persons job performance.
41
What criteria are used to judge whether conduct
constitutes sexual harassment?
The subjective test for sexual harassment
includes the idea that the alleged victim of
harassment in fact feels that his or her working
conditions have been adversely affected by the
behavior.
42
The objective test for sexual harassment is
whether conduct adversely affects conditions of
employment. Since people often disagree as to
what constitutes sexual harassment a common
standard is needed to guide employees, employers,
and judges. It is natural to ask whether a
reasonable person would find such conduct as
sexual harassment, but some critics say that men
and women tend to view harassment differently and
that the reasonable person standard is really a
reasonable man standard. To avoid applying a
reasonable man or a reasonable woman standard,
some have begun to use a reasonable victim
standard of judgment.
43
What laws pertain to sexual harassment?
Title V11 of the 1964 Civil Rights Act and Title
1X of the 1972 Education Amendments are
understood to prohibit sexual harassment at work
and school. Thus, sexual harassment is considered
a violation of the victims civil rights. The
Equal Employment opportunity commission drafted
guidelines describing employers obligations to
prevent and stop sexual harassment.
44
What is Texas State Universitys policy on sexual
harassment?
Texas State University defines sexual harassment
as unwelcome sexual advances, requests for
sexual favors, and other verbal or physical
conduct of a sexual nature that is the basis of
a condition of employment or academic decisions.
Sexual harassment includes behavior such as
repeated and unwanted requests for dates, sexual
flirtation, sexual statements or questions about
a persons clothes, body, or sexual activities,
subtle pressure for a sexual relationship,
unnecessary touching, direct or implied threats,
leering, physical assaults, or a pattern that
causes humiliation or discomfort.
45
Why does sexual harassment occur?
  • There are three models for understanding sexual
    harassment.
  • The biological model contends that sexual
    harassment is a natural outcome of people seeking
    sexual relations. Although seeking sexual
    relations is natural, sexual harassment is the
    inappropriate attempt to find sexual
    gratification.
  • The socio-cultural model asserts that sexual
    harassment is part of patriarchal society in
    which men seek to dominate women. This model is
    consistent with research that shows harassers are
    typically men and victims typically women.
  • The organizational model claims that harassment
    is a result of hierarchical institutions. There
    are asymmetrical power relationships within
    organizations that provides the avenues for
    individuals to extort sexual relations with their
    subordinates.

46
Could your conduct be interpreted as sexual
harassment?
You should ask yourself three questions. First,
would want our spouse or lover to be aware of our
conduct? Second, would you want your conduct to
become public? Third, is your conduct necessary
for conducting business? Err on the side of
caution.
47
What should you do if you believe that you are
being sexually harassed?
Different situations call for different
solutions. There are, however, guidelines to
follow. It might be appropriate to communicate to
the perpetrator that you do not find his or her
conduct appropriate and that such conduct makes
you feel uncomfortable. You might also seek to
limit your conduct with the perpetrator. If the
harassment continues or the perpetrator denies
the harassment, it might be appropriate to
suggest a meeting with a supervisor or
individuals within the human resources
department. Legal counsel might be needed. The
more accurately you document the offenses, the
more likely the situation will be resolved in
your favor.
48
Questions
Is it ever appropriate to tell jokes of a sexual
nature at work?
Is it ever appropriate to compliment a person at
work on his or her appearance?
Is it ever appropriate to discuss ones
relationships or sexual history at work?
Is it ever appropriate to date someone at work?
If employees engage in a lovers quarrel while at
work, how should the immediate supervisor address
the situation?
49
Ethics
What are the major theories of ethics?
50
1) Virtue Ethics
Virtue ethics focuses on what it takes to be a
good person, on character development, on virtue
and vice. Plato and Aristotle advanced views on
virtue ethics by focusing on improving the soul
and cultivating the right attitudes and habits.
For Aristotle, at least, the good life is the
life of the excellent person. Aristotle believed
that the excellent person lives moderately. In
other words, being immoral means going to
extremes.
51
Golden Mean
Aristotle is known for the concept of the golden
mean in which he states that virtue is found
between two vices, a vice of excess and a vice of
deficiency. For example, courage is a virtue
found between cowardice (the deficiency) and
foolhardiness (the excess). The virtue of
friendliness is found between the vice of
unfriendliness and being a sycophant.
52
Habituation
According to Aristotle, we learn to be virtuous
through the practice of correct behavior
(habituation) from people who are excellent, the
virtuous role models. We must develop virtuous
habits. A challenge to virtue ethics is that
virtuous people still might disagree as to what
constitutes virtuous conduct in complicated
matters such as cloning, terrorism, abortion, and
other controversial social issues.
53
2) Deontology
Deontological ethics focuses on what makes an
action the right thing to do. Deontologists such
as Immanuel Kant and William David Ross argue
that right action is determined by the inherent
nature of the action, rather than the
consequences of the action. This means that right
action is not determined by what happens after
the action is performed but by the intrinsic
qualities of the action. For Kant, a morally
right action demonstrates respect for persons and
is universally (always) true. For Ross, duties
have exceptions.
54
Categorical imperative
Categorical means true for a whole category or
without exception. An imperative is a command or
a claim about what ought to be done. Hence, the
categorical imperative is a claim that some
actions ought to be done without exception. Kant
is famous for his two versions of the categorical
imperative. Kant is often criticized for being an
absolutist in that moral principles are
universally true and that we should never make
exceptions to these principles to suit our
interests.
55
1st formulation of the categorical imperative
Kant states that persons should follow maxims
(principles) that a person should will to be a
universal law. This means that we should conduct
ourselves in accordance with principles that we
would want everyone to follow. For Kant,
immorality means having one set of rules for
ourselves and another set for others. When we are
wondering what we should do, we should ask
ourselves what we would want everyone else to do.
56
2nd formulation of the categorical imperative
Kant states that we should never treat a person
as merely a means to an end people are
ends-in-themselves. Kant claims people should
never be treated as mere instruments to suit our
purposes. No one should be treated or used as
merely a thing.
57
Rosss Pluralism
For Ross, there is more than one moral principle.
A morally right action abides by a moral
principle such as keeping a promise or treating
people fairly. Ross is famous for thinking that
moral principles can conflict. Therefore, there
are cases where we cannot do everything that is
moral.
58
Prima facie duties
In cases of conflicting moral principles, each
principle is true prima facie but only one
principle in each case can be our duty proper. A
prima facie principle is one that we should
ordinarily follow but one that can be overridden
in some circumstances. The duty proper is the
prima facie principle that is the overriding
principle for a particular situation. It can,
however, be difficult to determine what is right.
59
Intuitionism
Ross is described as advocating intuitionism
because he believes good persons will have an
intuition (an instinct) about what is the right
thing to do. Ross is widely criticized because
people often have different intuitions about what
is right and wrong.
60
3) Utilitarianism
Utilitarian ethics also focuses on what makes an
action right. Unlike deontologists, utilitarians
argue that the right action is the one that
results in the best consequences. Utilitarianism
is the view that we should promote the greatest
good for the greatest number of people. Some
utilitarians (Bentham) believe that pleasure is
the good that should be maximized, while others
(Mill) believe that happiness should be maximized
and that there are higher and lower pleasures.
Contemporary utilitarians can also be pluralists
in the sense that there is more than one
intrinsic good.
61
Act Rule Utilitarianism
Utilitarians disagree as to whether we should try
to do the greatest good for the greatest number
in every situation (act utilitarianism) or if we
should try to follow rules that usually result in
the greatest good for the greatest number (rule
utilitarianism). The problem with act
utilitarianism is that it seems to allow for the
sacrifice of individuals for the greater good in
some situations. The problem with rule
utilitarianism is that it seems that we should
sometimes make exceptions to rules.
62
4) Care Ethics
Care ethics focuses on developing and maintaining
caring relationships. Care ethicists emphasize
the need to find inclusive (win-win) solutions to
moral conflicts. Care ethicists also emphasize
that we have stronger obligations to those with
whom we have caring relationships. We have
personal obligations to friends and family
members but we also have impersonal obligations
to strangers. Because care is important, healthy
emotions have a more pivotal role in care ethics
than in other ethical theories. One challenge for
care ethicists is to prove that care can be the
foundation for ethics in a world that is often
impersonal.
63
Questions
Which theory do you think will be most relevant
for discussing ethical issues that arise in the
context of medical, legal, business, and
political professionals?
Do you expect any difficulties in applying
ethical theories to practice?
Are we supposed to be able to resolve all ethical
conflicts?
Are we all supposed to agree as to how to resolve
an ethical conflict?
If people disagree as to whether conduct is
unethical, how can we discover the right answer?
If we cannot always discover right answers, how
are we supposed to respond to ethical conflicts?
64
Confidentiality
What is confidentiality? What is the moral basis
of confidentiality? Are there legitimate
exceptions to upholding confidentiality? What is
a fiduciary relationship?
65
What is confidentiality?
ConfidentialityConfidentiality involves the
protection of information regarded as private for
interpersonal or professional reasons.
Confidential information is often intimate,
embarrassing, and potentially damaging. There are
deontological and utilitarian reasons why
information disclosed to professionals in their
official capacity should be regarded as
confidential.
66
What is the moral basis of confidentiality?
Deontology ConfidentialityDeontologists
believe that confidentiality should be maintained
because it is inherently right to do so. A breach
of confidentiality shows a lack of respect for
persons by violating trust. A Kantian approach
would say that violating confidentiality cannot
be universalized and that the persons confidence
breached has been used as merely a means for the
end of gaining information. Information disclosed
between client and attorney involves an implicit
or explicit contract not to divulge the
information to anyone not working on behalf of
the client.
67
Utilitarianism ConfidentialityUtilitarians
would say that upholding confidentiality produces
the greatest good for the greatest number. If
attorneys could not be trusted to maintain
confidentiality, citizens would not be
forthcoming with information that is essential to
providing justice that maximizes happiness.
Without full disclosure, attorneys will not be
able to defend their clients optimally. Without
confidentiality justice will suffer, thereby
undermining the good of the client and society.
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Are there legitimate exceptions to upholding
confidentiality?
Confidentiality ExceptionsAn attorney may
reveal confidential information if the client
consents after consultation, the attorney has
reason to do so in compliance with a court order,
the attorney has reason to believe it is
necessary to prevent the client from committing a
criminal or fraudulent act, to carry out
representation, when necessary to defend against
various allegations, or in consultation with
members of the attorneys firm, unless otherwise
instructed by the client. W.D. Rosss philosophy
is especially helpful in understanding exceptions
to rules.
69
What is a fiduciary relationship?
Fiduciary relationshipA fiduciary is a person to
whom property or power is entrusted for the
benefit of others. A fiduciary relationship
between a professional and client involves a
trust that the professional will act in the
interest of the client for the good of the client
and society.
70
Questions
71
Whistle Blowing
What is whistle blowing? Are there legal
protections for whistle blowers? What is the
Sarbanes-Oxley Act of 2002? Is there anything
wrong with blowing the whistle? What is the
justification for whistle blowing? What should a
potential whistle blower consider? What are the
moral grounds for protecting whistle
blowers? What constitutes an effective whistle
blowing policy?
72
What is whistle blowing?
Whistle blowing involves an employees exposure
of institutional abuse, fraud, or other criminal
activity or immoral activity, or activity not in
the public interest. Only a member of the
organization alleged to be guilty of wrongful
conduct can be considered a whistle blower.
Information disclosed by the whistle blower must
constitute a serious wrong or have the potential
for serious wrong.
73
Are there legal protections for whistle blowers?
The False Claims Act of 1863 (revised 1986)
defended whistle blowers to combat fraud by
suppliers to the federal government during the
Civil War. The act stipulates that whistle
blowers are entitled to a percentage of monies
recovered or damages won in fraud cases. The
Civil Service Reform Act of 1978 also protects
whistle blowers from wrongful dismissal or
retaliation. Many states have additional laws
protecting whistle blowers.
74
What is the Sarbanes-Oxley Act of 2002?
This act is considered to be one of the most
important laws related to whistle blower
protection. While most whistle blower protection
laws address remedies for wrongfully treated
employees, this act requires publicly traded
corporations to establish procedures to accept
whistle blower complaints. Such corporations must
also establish audit committees that accept
internal whistle blower complaints regarding
accounting and auditing matters. The Act also
requires attorneys to report violations of
securities law. Furthermore, the Act provides for
the suspension or debarment of a public
accounting firm that refuses to cooperate in an
investigation conducted by the Public Company
Accounting Oversight Board. All complaints must
be filed with the Department of Labor. Whistle
blowers who are victimized by their employers are
entitled to reinstatement, back pay, interest,
compensatory damages, special damages, and
attorney fees. The law does not provide for
punitive damages.
75
Is there anything wrong with blowing the whistle?
Whistle blowers are frequently criticized for
being disloyal to their organization.
Organizations rely upon trust to act effectively.
Moreover, information disclosed by the whistle
blower is often considered confidential, and
employees are expected to file complaints within
the organization.
76
What is the justification for whistle blowing?
Although loyalty to employers and trust within an
organization are values worth protecting, these
values, like most values, have prima facie value.
Remember that prima facie values or principles
can be overridden by other values or principles.
In cases of whistle blowing, there are conflicts
between values. On the one hand, it is valuable
to be loyal and trustworthy toward employers,
colleagues, and peers conversely, it is valuable
to protect the public interest by reporting
criminal or seriously immoral behavior. Few if
any values or principles are absolutely true.
Most values or principles have exceptions. So,
the potential whistle blower must weigh, balance,
or prioritize the conflicting values. That is why
whistle blowing is more justifiable the more
serious the wrongful conduct.
77
What should a potential whistle blower consider?
Is the situation serious enough to warrant
blowing the whistle? Are there enough facts to
establish serious wrongdoing? Are there
established internal avenues to follow? What is
your responsibility within the organization? What
is the best way to blow the whistle? Should the
information be revealed anonymously?
78
What are the moral grounds for protecting whistle
blowers?
UtilitarianismWhistle blowers should be
protected because it encourages people to reveal
conduct that is harmful to the community and the
long-term interest of the organization. By
protecting whistle blowers happiness is
maximized.   DeontologicalProtecting whistle
blowers shows respect for the whistle blower.
Failure to do so could constitute treating the
person as merely a means for the sake of
corporate profits, for example.
79
What constitutes an effective whistle blowing
policy?
Organizations should have a clear ethics policy
that is reflective of the institutions values.
There should be procedures for reporting immoral
or illegal conduct, and personnel should be
trained to investigate such complaints. Employees
should be protected against retaliation.
Organizations that make a commitment to
cultivating an ethical culture will have fewer
problems.
80
Questions
81
Medical Ethics
What are the fundamental principles of medical
ethics? Are there alternative models of medical
ethics? What is the 4-topics method?
82
What are the fundamental principles of medical
ethics?
The great ethical traditions of virtue,
deontology, utilitarianism, and care influenced
medical ethics in a profound way. Some principles
of medical ethics have been around for thousands
of years. The Hippocratic Oath, which was
formulated in ancient Greece, instructs
physicians to do no harm. And Plato and Aristotle
expressed their views on euthanasia and suicide.
Contemporary medical ethics, however, has been
influenced by the work of Tom Beauchamp and James
Childress. Beauchamp and Childress articulated
the following 4 ethical principles for issues in
medicine
83
  • AutonomyAutonomy means freedom, so this
    principle means that we should respect peoples
    freedom or autonomy. This entails that patients
    should be informed of their medical condition and
    their treatment choices should be respected
  • BeneficenceBeneficence pertains to promoting
    well-being and happiness. The promotion of health
    and the elimination of pain and suffering are
    obvious outcomes of this principle
  • Non-maleficenceThis principle instructs
    healthcare providers to do no harm.
  • JusticeThis principle pertains to fair access to
    healthcare services. It is a principle of
    non-discrimination.

84
Beauchamp and Childress contend that each of
these principles is true prima facie. Remember
that this means that healthcare providers ought
to follow each of these principles, but if the
principles conflict (they cannot do them all),
they must decide which principle takes priority.
85
Are there alternative models of medical ethics?
Yes. Edmund Pelligrino and David Thomasma
emphasize the virtues that physicians need to
cultivate. Albert Jonsen, Mark Siegler, and
William Winslade focus on the details of clinical
cases, rather than on principles. Rosemarie Tong
and Susan Sherwin take a feminist approach to
medical ethics that includes care ethics. There
are other views, but this provides an orientation
into the theoretical underpinnings of
contemporary medical ethics.
86
What is the 4-topics method?
Jonsen, Siegler, and Winslade present us with a
model of medical ethics that emphasizes actual
cases that healthcare providers are likely to
face. Their approach is more practical than
theoretical. They realize that healthcare
providers must make difficult decision and that
they need guidelines to solve the moral conflicts
they face. In their introduction to Clinical
Ethics, they say that to make good decisions
regarding medical ethics, we must be attentive to
the medical facts, the patients preferences,
quality of life issues, and the context of the
decision.
87
Why do these authors emphasize these four
features instead of Beauchamp and Childresss
4-principle model? They are emphasizing the fact
that finding solutions to medical ethics cases is
not a straightforward process of applying
principles to cases. Cases are complicated by
patients religious views, the psychodynamics
among their family members, their educational
level, their financial situations, new
technological developments, and the uncertainties
of medicine.
88
Questions
Do you understand what is meant in saying that
the principles of biomedical ethics are true
prima facie?
What would you decide in the case of Dax Cowart?
How would you defend the ethics of your decision?
What ethical theory supports your decision? Is
there an ethical theory that might be used to
argue against your view?
89
Brain Death
What is the definition of death? Why was the
concept of brain death significant? What is the
medical and legal definition of death today? What
criteria are used to declare brain death? Is
brain death controversial? What other definitions
of death have been proposed?
90
The Definition of Death
Before the 1950s, a person was medically and
legally declared dead if and only if the persons
heart and lungs had permanently ceased
functioning. Because of a world-wide polio
epidemic, health care providers had to manually
pump air into childrens lungs to keep them
alivea valiant but inefficient treatment.
Consequently, artificial respiration was used for
this purpose and later for individuals who had
suffered traumatic brain injury. This provided a
gray area between life and death. Were those
whose heart and lungs were kept functioning
artificially but who had no evidence of
consciousness really alive? And since heart
transplantation could not be performed unless the
circulation of blood and oxygen kept the heart
viable, if heart/lung functioning remained the
definition or criterion for death, taking a
persons heart for transplantation would
constitute murder. For these reasons, the French
proposed and a committee at Harvard developed the
idea of brain death.
91
Why was the concept of brain death significant?
Brain death served two important functions.
First, if people receiving artificial respiration
were never going to regain brain functioning,
brain death provided the rationale for
withdrawing treatment. After all, according to
the concept of brain death, artificial
respiration given to a brain dead person is
circulating blood and oxygen through a dead
person. Brain deathdeath! Second, brain death
aided the goals of organ transplantation. People
whose brain functioning had permanently ceased
could be declared dead and then prepared for
organ transplantation. This way organ
transplantation of the vital organs (the heart
and, in the past, the liver) would not kill the
donorthe donor is already dead.
92
What is the medical and legal definition of death
today?
Today, death can be legally declared in two ways.
A person is dead if the persons heart/lung
functioning permanently ceases. And a person is
dead if the persons brain permanently ceases.
One of these conditions must be met. Physicians
have declared death by the cardiopulmonary or the
brain definition depending on the goals of
medicine for particular situations. Most organs
are retrieved from brain dead persons, but there
are cases were individuals who are not brain dead
are kept alive by artificial means. Sometimes
these patients want treatment withdrawn, because
they are tired of their deaths being prolonged.
And some of these patients consent to donation.
In these cases, treatment is withdrawn and the
patients are declared dead after a couple of
minutes of heart/lung failure. To avoid conflicts
of interest, death cannot be declared by members
of the transplant team.
93
What criteria are used to declare brain death?
Determining brain death is complex and technical.
There are differences among hospitals throughout
the U.S. However, there are some criteria that
are standard. As Jonsen, Siegler, and Winslade
point out, such criteria include the absence of
pupillary reflex, voluntary and involuntary
movements, gag reflex, and brain stem
functioning. Alternative diagnoses such as drug
overdose and severe hypothermia must be ruled
out. Students should also be aware that brain
death is not the same as coma, persistent
vegetative state, or locked in syndrome. In
short, brain death is more traumatic than these
other conditions that result from severe brain
injury.
94
Is brain death controversial?
Yes. The primary problem with brain death is that
different parts of the brain are responsible for
different functions. Making matters complicated
is the fact that not all of the functions cease
at once. So, how much of the brain has to cease
functioning permanently to declare brain death?
Today, the whole-brain definition of death has
been accepted. What does this mean?
Traditionally, the brain has been divided into
those parts responsible for higher functioning
(cerebral cortex) and lower functioning (e.g.
brain stem). Higher functioning involves
self-awareness, consciousness, emotions etc.
lower functions involving breathing, temperature
and blood pressure regulation etc. When and only
when the higher and lower functions permanently
cease, the person is dead.
95
The problem is that even when medical
professionals agree that a person is dead, their
brains are still able to produce hormones and
show electrical activityevidence of brain
function according to some commentators. For
these reasons, some scholars have advocated
another shift in the way we define and determine
death.
96
What other definitions of death have been
proposed?
Higher-brain definitionThis definition of death
proposes that a person is dead if and only if the
person permanently loses higher-brain
functioning. In this way, even if a persons
brain stem is still functioning, but the person
will never again experience thoughts or feelings,
the person is dead. The higher-brain definition
of death also allows for more organ
transplantation since there are about 4,000
Americans who are in a persistent vegetative
state (PVS). PVS patients can be declared dead
according to higher-brain criteria but not by
whole-brain criteria. Today, it is illegal to
declare people dead according to the higher-brain
definition.
97
Cardio-pulmonary definitionSince brain death has
proven to be more complicated than originally
thought, some commentators suggest that we return
to the view that persons are dead if and only if
their heart and lungs permanently cease. The
problem with this definition is that it would
undermine the goals of transplantation unless
society accepted the view that vital organs can
be taken from living persons, an unlikely and
potentially disturbing position.
98
Questions
Do you understand how the different definitions
of death affect organ transplantation?
Do you understand why it is contradictory to say
that a person became brain dead at a particular
time and later died?
Which definition of death seems the most
plausible to you?
99
Managed Care
What is managed care? Is managed care a good
system?
100
What is managed care?
Managed care is contrasted with the
fee-for-service healthcare system. In a
fee-for-service system, healthcare providers
charge a fee for each service provided. This
system was financially inefficient, because
healthcare providers had a financial incentive to
provide many services. Moreover, if patients had
health insurance to pick up the tab, they might
seek diagnostic tests and treatments that were
unnecessary. Managed care is a system devised to
combat this waste of expensive healthcare
resources.
101
Managed care organizations (MCOs) take a variety
of forms such as health maintenance organizations
(HMOs) and preferred provider organizations
(PPOs), but they share some common features.
First, MCOs are usually for-profit businesses
that contract with hospitals and healthcare
professionals to provide various services.
Second, MCOs pre-pay for anticipated healthcare
needs, so hospitals have an incentive to use
their services efficiently. Third, MCOs emphasize
preventive medicine. This makes sense because
healthy patients do not cost MCOs money which
means more profit for the MCO. Fourth, MCOs
implement utilization review.
102
There are two components to utilization review.
Emphasis is placed on what is called evidence
based medicine. This means there must be a
scientific/medical basis for prescribing a
treatment regimen. In this way, futile treatments
or treatments with little benefit can be
eliminated. Physicians are also reviewed to
determine whether they are efficiently using
resources. Fifth, patients in MCOs usually have
co-payments for each doctor visit to provide them
with an incentive to avoid medical treatment
unless they are really ill or at risk for
becoming ill. Sixth, MCOs emphasize the role of
the primary care physician (PCP) as a gatekeeper.
In some MCOs patients cannot see a specialist
(which is more expensive) unless they receive a
referral from the PCP.
103
Is managed care a good system?
There is not a straightforward answer to this
question. It is good medically and economically
to emphasize preventive medicine and to find
efficient ways to deliver healthcare services.
However, managed care has received much criticism
and has thus evolved to overcome the criticisms.
In the past, MCOs often provided bonuses to
physicians for keeping costs down, but this meant
that patients were often under treated.
Physicians also objected to the utilization
review that enabled non-physicians working for
MCOs to tell physicians how to practice medicine
(e.g. that they should prescribe a less expensive
drug). Plus, because MCOs contracted with a
particular group of physicians, patients choices
were limited in selecting a doctortheir favorite
doctor might not be a member of that MCO. Some of
these problems have been addressed. Bonuses to
physicians for controlling costs have been
eliminated in some plans and PPOs give patients
more choices in selecting doctors.
104
Questions
To understand the healthcare system and managed
care, we must reflect on our own experiences.
When you become ill or concerned about your
health, are you able to make an appointment
without waiting too long? Do you have healthcare
insurance? Do you have a physician who you trust?
Does your insurance cost too much? Must you
schedule an appointment with your primary care
physician before seeing a specialist? How
expensive are your co-payments? If you lose your
job, will you be able to continue your insurance
policy?
105
Given the fact that over 40 million Americans are
uninsured, what changes do you suggest? Would you
impose more taxes on the wealthiest Americans and
utilize those revenues for healthcare? Would you
alter the federal budget so that funds are taken
from one program and given to healthcare?
In America, we have a right to assemble, bear
arms, vote, private property, and the pursuit of
happiness. However, we do not have a right to a
house or a good standard of living. Do you think
Americans have a right (are entitled) to
healthcare? Do children have a right to
healthcare?
106
Organ Transplantation
Routine Retrieval Xenotransplantation Selling
Organs
107
About 6,000 Americans die each year while waiting
for an organ transplant. Since many people die
without consenting to organ donation, the organ
transplant community has suggested alternatives
to address the organ shortage problem. Proposals
include routine retrieval, xenotransplantation,
selling organs, re-defining death, and developing
stem cell therapies. Since we discuss the
definition of death and stem cell research in
other sections, here we will limit our discussion
to routine retrieval, xenotransplantation, and
selling organs.
108
Routine Retrieval
In America, we have a policy of explicit consent.
This means that unless a person agrees to be an
organ donor or the persons family consents to
donation, organ retrieval will not take place. It
has been argued that organs should be retrieved
as needed, no matter the persons or familys
view of donation. After all, corneas and
pituitary glands are routinely retrieved without
peoples consent. Why not implement routine
retrieval for hearts, livers, kidneys, and
pancreases?
109
Xenotransplantation
Xenotransplantation involves the transplantation
of tissues and organs from a member of one
species into a member of another species. It is
cross-species transplantation. The use of pig
heart valves has been the most successful use of
animals for transplants. As far as I know, no
transplant of an entire organ from a non-human to
a human has been successful. However, the
improvement of immunosuppressive drugs and the
development of transgenic swine (pigs with human
genes) have given some people hope that pigs can
provide an inexhaustible supply of organs. In
addition to the animal rights issue, there are
viruses and bacteria that are benign in pigs that
might prove harmful or fatal to human beings.
110
Selling Organs
Currently, it is illegal to buy or sell human
organs. Since not enough people become organ
donors, some commentators have suggested that we
provide financial incentives. More than likely,
allowing people to sell their organs would save
more lives, but is paying people for body parts
ethical? Some people believe that paying people
for their organs exploits the poor. In India,
where buying and selling organs is legal, many
impoverished Indians have sold a kidney for about
1,000. Other commentators add that a market for
organs violates Kants second formulation of the
categorical imperativeit uses people for the
health benefits of others. Despite these
criticisms, some authors say that America is a
free country and argue that people have a right
to sell their organs if they willingly do so.
They point out that we allow people to sell their
plasma, eggs, and sperm.
111
Question
If you are a policy maker, what efforts would you
support in addressing the problem of premature
organ failure?
112
Physician-Assisted Suicide and Euthanasia
What is euthanasia? What is the difference
between passive and active euthanasia? What is
physician-assisted suicide? What is the Oregon
Death with Dignity Act (1997)? What are the
arguments defending euthanasia and
physician-assisted suicide? What are the
arguments against active euthanasia and
physician-assisted suicide?
113
What is euthanasia?
Euthanasia is often referred to as mercy killing.
It is killing or allowing patients to die on the
basis of compassion. The point of euthanasia is
to eliminate patients suffering.
114
What is physician-assisted suicide?
With physician-assisted suicide a physician
prescribes a fatal dosage of barbiturates or some
other drug for the sake of eliminating a
patients suffering. Physician-assisted suicide
is illegal in every state except for the state of
Oregon.
115
What is the Oregon Death with Dignity Act (1997)?
In 1997, the Oregon legislature enacted into law
physician-assisted suicide under specified
circumstances. For a person to receive a
physicians assistance in death, a person must
meet the following con
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