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Print version ISSN 0034-7094
Rev. Bras. Anestesiol. vol.56 no.3 Campinas May/June 2006
Bioethics issues regarding the anesthesiologist*
Bioética aspectos de interés del anestesiólogo
Artur Udelsmann, TSA
Médico, Advogado e Professor Doutor do Departamento de Anestesiologia da FCM-UNICAMP
OBJECTIVES: Medical evolution requires from health professionals the exercise
of ethical reflections faced to daily situations, to avoid transgressing moral,
ethical and legal rules. This article aimed at addressing bioethics principles
to be observed during the Anesthesiology practice.
CONTENTS: After bioethics historical introduction and definition as a philosophic science, its interface with Law is demonstrated. Beneficence, non-malfeasance, respect to autonomy and justice principles are presented as critical points for the anesthetic practice, the primary objective of which is to preserve human dignity. The adherence to these principles protects patients against unexpected and undesirable results, in addition to protecting the anesthesiologist against ethical or legal implications after fortuitous complications.
CONCLUSIONS: Bioethics is integral part of health discussions; the progress of Anesthesiology and research requires the understanding of this subject to adequately practice the specialty. Although being philosophical, and to a certain extent apart from a specialty focused on acute attention to patients, anesthesiologists are willing to understand this new science, which will increasingly influence the practice of the specialty, in order to protect patients and avoid further inconveniences in the rather difficult practice of this specialty in our country.
Key Words: ANESTHESIOLOGY, Bioethic.
E OBJETIVOS: La evolución de la Medicina exige de los profesionales
de la salud la realización de una serie de reflexiones de sello ético,
frente a las situaciones enfrentadas diariamente, de manera a no transgredir
reglas morales, éticas y legales. El objetivo de este artículo
fue el de abordar los principios de la bioética que deben ser observados
durante el ejercicio de la Anestesiología.
CONTENIDO: Después de la introducción histórica y la definición de bioética como una ciencia de sello filosófico, se demuestran sus interconexiones con el Derecho. Los principios de la beneficencia, de la no maldad, del respeto a la autonomía y a la justicia se presentan como puntos esenciales de la práctica de la Anestesiología, cuyo objetivo es, primordialmente, la preservación de la dignidad del ser humano. La observación de esos principios protege al paciente de resultados inesperados, indeseables y también al anestesiólogo de implicaciones en la esfera ética o jurídica frente a complicaciones fortuitas.
CONCLUSIONES: La bioética se hizo inseparable en el ámbito de las discusiones de la salud; para el progreso de la Anestesiología y de la investigación hacen necesarios conocimientos de esa área en la práctica de la especialidad. Aunque de sello filosófico, de una cierta manera un poco lejos de la especialidad que prima por una atención aguda al paciente, los anestesiólogos tienen todo el interés en conocer esa nueva ciencia que cada día más, seguramente, influirá en la práctica de la especialidad, para proteger sus pacientes y evitar más trastornos en la práctica de una especialidad ya bastante difícil en el país.
Medical evolution in the last century brought to light social challenges requiring solutions. Some facts of this period had major historical impact, imposing the need for ethical discussions: during World War II, scientists performed atrocious experiences with prisoners, which went beyond all degrading expectations 1 and motivated the publication of the Nuremberg code which for the first time established rules to be observed during human research.
But by assuming that such atrocities were privilege of old totalitarian regimens, a huge error was committed: the Tuskegee Syphilis Study, conducted between 1932 and 1972 by the U.S. Public Health Service with syphilitic Afro-Americans aiming at studying the natural evolution of untreated syphilis, left patients without penicillin many years after its discovery. Between 1956 and 1970, parents of handicapped children from the Willowbrook State School were forced to accept the injection of hepatitis virus strains administered to their children to study a new effective prophylaxis 2.
In 1964, a study conducted in the Jewish Chronic Disease Hospital has injected third-party tumor cells in elderly, without their previous consent, to evaluate their evolution outside the body generating them 3. In all these cases, press attitude was paramount to spread such practices and has allowed, through society pressure, the birth of a new field of study known as bioethics. The word bioethics is a neologism used for the first time in the early 1970s by biologist Van Rensseler Potter, from the University of Wisconsin; he was concerned with the uncontrolled scientific development and the preservation of the human-ecosystem balance and its possible effects on human life 2. His publication, Bioethics: a Bridge to the Future, has become a historical reference for the area. Dutch obstetrician Andre Hellegers, from the University of Georgetown, was responsible for taking the term to Medicine and for publicizing it as from the 1970s. Another bioethics historical landmark was developed in 1978/79 in the USA: the "Belmont report" 4 by the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research; this publication, which solely emphasized ethical issues of human experiences overlooking clinical practice issues, has established three principles to be observed by scientific research: the principle of human respect, the principle of beneficence and the principle of justice.
Lastly, still in 1979, Tom Beauchamp and James F. Childress 5 have published "Principles of Biomedical Ethics", which to date is the most important publication for medical bioethics discussions. The authors reported four principles and gave origin to the bioethical line known as "principialism". Two of those principles are deontological and address duties: the principle of non-malfeasance and the principle of justice; the other two are teleological and address results: the principle of beneficence and the principle of respect to autonomy. This was really the first publication to be concerned with the application of ethical principles to medical practice problems, as it is the case of the activities of most Anesthesiologists. Bioethics was only introduced in Brazil in the 1990s. The Federal Council of Medicine (FCM) launched the "Bioethics" journal in 1993. The Brazilian Society of Bioethics was founded in 1995 to certify professionals and discuss health policies in our country. In 1996, the National Health Council issued resolution 196/96 to normalize human research and since then, numerous publications have been launched to publicize the subject, among them one of the most important is the book "Introduction to Bioethics" 6, also published by FCM.
Defining philosophical sciences is a hard task and it is unlikely to obtain consensus; even among related professionals there is not a single concept to define "ethics". Anesthesiologists are professionals acting on "acute processes" with very narrow safety intervals, who cannot afford many philosophical divagations. But they should start being increasingly concerned with ethics if they intend to survive in their workplace and to be successful with the numerous claims all physicians are currently submitted to.
Ethics is a mechanism regulating social relations and aiming at assuring social cohesion and harmonizing individual and collective interests 7. Bioethics is a neologism derived from the Greek bios (life) and ethike (ethics), and may be defined as "the systematic study of moral dimensions, including vision, decision, behavior and rules of life sciences and of health care" 8. Reich, in his Encyclopedia of Bioethics 9 has also defined it as "systematic study of moral dimensions including moral vision, decisions, behaviors and lines guiding it of life and health sciences, by the use of several methods and with interdisciplinary posture".
Or even, bioethics is "the systematic study of human behavior in the areas of life and health care sciences, provided this behavior is examined at the light of moral values and principles". Ethics relates to moral, which is the science of what morally "should be" and not of "what it is", or even, is the search and the establishment of the reasons justifying what "should have been done" and not what "may be done". Science deals with reality as it is, and moral deals with reality as it should be. Bioethics establishes interdisciplinary moral rules which should be respected for the best possible social contact, as described by Jean-Jacques Rousseau in his well-known book "Du Contract Social" 10; there, in wise words, the author states that to be able to live in society, each individual should sacrifice part of his individual freedom in behalf of a commonwealth, submitting his/her private interest to the general interest through a judgment of value.
And what differentiates human being universe from the natural world is exactly the ability to make value judgments, and ethics is the domain of value judgments. Bioethics is part of a much larger universe, that of ethics itself which involves moral rules of different areas such as business, environment, economics, etc. However, it also encompasses the known and conservative Medical Ethics, more involved with physician-patient and physician-physician relationships, without presenting solutions for several other emerging problems in the field of life sciences. The Code of Medical Ethics (CEM) indicates how its members should behave and what they are not allowed to do; it is the classical professional deontology which, in its 145 articles, has 112 starting with "the physician is not allowed to" 11. Bioethics has also a very close relationship with Law and some very old moral rules ended up being incorporated to it.
BIOETHICS AND LAW
Healthcare is not only ruled by ethical principles, but also by legal principles and those are often intermingled, although bioethics field of action is much wider. The ethical behavior of individuals requires their free personal adhesion and convincement; legal rules do not require this convincement but are rather imposed by society to all people regardless of previous individual agreement. Laws, when not respected, generate legal penalties and ethical rules have no mandatory penalties provided for cases of transgression.
The Code of Medical Ethical-Professional Process, regulating the examination of possible breaches of CEM rules and the application of penalties, configures an exception to this rule in article 40 which provides that "disciplinary penalties applicable by Regional Councils are those provided by the law". That is, transgressions to medical ethics rules are punished by the art. 22 of Federal Law 3268/1957, and this gives to CEM rules a coactive aspect, regardless of physicians' previous adhesion or convincement 12. Bioethics and Law, together, have a more humanistic sense because they are bound to the notion of justice to individuals in all health acts.
Each and every act aiming at care or technological advances and not respecting human dignity should be repelled for going against ethical-legal justice and human rights. The practice of some health investigations should be prevented if involving potential and unexpected risks to life or health. Health and Law professionals are responsible for making technological advance something good and helpful for men, to protect human rights with justice goals 13.
PRINCIPLE OF BENEFICENCE
Bioethics is based on several philosophical lines, however the most commonly used analysis method in most countries is the already described Beauchamp and Childress' "principialist" method. The principle of beneficence relates to the need/duty of maximizing patients' benefits decreasing the risk of potential losses; physicians shall have scientific background and professional experience convincing and assuring them that the act to be practiced will be beneficial for the patient 14. The principle of beneficence does not clearly define how to distribute goodness and evil, it just imposes the first avoiding the second. When there are conflicting requirements, higher emphasis should be given to goodness, at the expenses of evil, in ethical terms.
In health, especially in Anesthesiology, beneficence is acting in behalf of patients and their health, promoting health and preventing anesthetic complications. But the principle of beneficence is not absolute and is limited by the autonomous right of individuals to decide what they consider their goodness, what is convenient for them 15. The principle of beneficence always requires an action, be it to promote goodness or to prevent or eliminate damages, and a very common procedure for anesthesiologists is a corollary of it: risk/benefit evaluation of each and every act.
PRINCIPLE OF NON-MALFEASANCE
The principle of non-malfeasance, on the other hand, requires abstention, that noxious acts to patients should be avoided. It is universally consecrated through the Hippocratic aphorism "primum non nocere", the intention of which is not to inflict any type of physical or moral damage to patients 16. Its philosophical basis is far more encompassing than the principle of beneficence because not causing damage is a common notion to all people due to each and every individual without discrimination; beneficence, however, should only be exerted to those really needing it in a far more limited universe 17.
The principle of non-malfeasance is not always adequately understood because the practice of Medicine may initially lead to damages with the objective of obtaining a better future benefit 18; if this were true, physicians would not act whenever their interventions would imply a major risk.
The principle of non-malfeasance is closely related to Medicine and is contained in the same Hippocrates oath: "I will follow that system of regimen which, according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous. I will give no deadly medicine to any one if asked, nor suggest any such counsel. Into whatever houses I enter, I will go into them for the benefit of the sick, and will abstain from every voluntary act of mischief "
PRINCIPLE OF RESPECT TO AUTONOMY AND INFORMED CONSENT
In the early 21st Century, the principle of respect to autonomy is requiring more attention in the exercise of modern Medicine. Autonomy means self-determination, the individual ability and right to decide and choose what is convenient, what people believe is the best for them, to decide their destiny according to their conceptions and without influences, not having to compulsorily adhere to or accept third-party conceptions, in this case physicians.
However, due to the low social-cultural level of our population, this principle has raised major discussions in the exercise of daily Medicine, especially as a function of the deep-rooted paternalism of physicians. But it has also been responsible for the introduction of patients' "free and informed consent" for medical acts, among them anesthesia.
Patients autonomy to choose what they understand is best for them after medical explanations has gone beyond moral and was incorporated to the Law itself; The Supreme Court has consecrated jurisprudence on the matter by stating: "the self-preservation instinct makes all people, the more rudimentary their basic knowledge might be, the safest judge of the conveniences for their own health" 19.
The principle of autonomy is frontally against the Hippocratic concept of Medicine of "doing the good and taking care of the patient" solely based on health professionals knowledge and reasoning, without considering patients' wishes. Respect to autonomy is a fairly recent phenomenon, which is slowly overriding the principle of beneficence 20. In more evolved countries, if a Jehovah Witness patient refuses blood transfusion, this will not be performed in respect to his/her right to autonomy.
A historical landmark of respect to autonomy is the Patient's Bill of Rights, published in 1973 by the American Hospitals Association and which is a reference to the practice of Medicine in that country; patients' rights to information and previous consent were consecrated in that bill 21. Physicians may be persuasive but never coactive by manipulating information or unilaterally imposing treatments. Patient and anesthesiologist should jointly choose the anesthetic method; the physician however is not forced to accept legal impositions which may pose needless risks. Free and informed consent has already been incorporated to deontologic rules of current CEM from 1988, which considers ethical breach:
- Art. 46: "To perform any medical procedure without previous information and consent of patients or their legal tutors, except for imminent risk to life".
- Art. 48: "Exert authority in a way to limit patients' rights to freely decide on their person or wellbeing".
- Art. 56: "Disrespect patients' right to freely decide on the execution of diagnostic or therapeutic practices, except for imminent risk to life".
Brazilian civil legislation has confirmed the ethical requirement of the informed consent:
- Civil code art. 147: "In bilateral legal businesses, the intentional silence of one party about the fact or quality the other party may have ignored is malicious omission when it is proven that without it the business would not have been celebrated".
- Consumers' Protection Code art. 14 (Law 8.078/90): "The service provider is responsible, regardless of fault, for repairing damages caused to consumers by defects related to the provision of the services, as well as to insufficient or inadequate information about its fruition and risks".
But the right to autonomy has its limits; it is not absolute and should be limited by the respect to dignity and freedom and by the rights of others and of the community. A state leader cannot, for instance, refuse a transfusion that could save his life for conscience reasons because this right is first opposed to the right of all the citizens who have elected him of having him as a governor. When the autonomy of someone, permanently or temporarily, as it is the case of the anesthesiologist, is decreased, the principles of beneficence and of non-malfeasance should ethically prevail.
It is worth stressing that from the ethical viewpoint, the notion of free and informed consent may go against current legislation; so, a unique ethical situation is created during anesthesia if the patient had previously refused a blood transfusion which a priori would not be needed, but for an accident suffers a massive hemorrhage. How should the anesthesiologist act if faced to the Legal Code in not doing so he could incur in omission of aid 22? Due to the collective interest in preserving the highest good, in this case life, current legislation prevents the physician to satisfy this autonomy of patients. For adolescents, although still with some difficulties, the idea of autonomy has been preconized based on the notion of "sanitation wisdom", that is, the decision ability of the implied young. According to the Statute of the Child and of the Adolescent, the latter are aged 12 to 18 incomplete years. CEM has introduced the notion of sanitation wisdom in its art. 103: "The physician shall not reveal professional secret related to minor patients, including to their parents or legal tutors, provided minors are able to evaluate their problem and make their own decision to solve it, except when the non-revelation may bring damage to patients". Nevertheless, in case of adolescents, physicians are still reluctant and tend to follow legal parameters.
PRINCIPLE OF JUSTICE
The principle of justice establishes as fundamental condition the search for equity, that is, the duty to provide adequate health care to each patient according to what is morally correct, and to give to each one what is ethically due 15. Federal Constitution, in its art. 196 says that health is the right of all and the duty of the State, with universal and equalitarian access 23. Physicians shall be impartial, treating all patients equally, avoiding that social, cultural, religious, financial or other factors interfere with physician-patient relationship. Physicians shall strive for the equalitarian distribution of health resources, primarily aiming at reaching as effectively as possible, the universality of patients.
The anesthesiologist shall not distinguish or perform anesthesia with different drugs, techniques or monitoring standards according to patients' social brackets or their health insurance; a good anesthesia is the same for everyone. But to talk about health justice in a country with social-economic differences such as ours is complex; but probably exactly for such, more valid are the philosophic thoughts about health. Justice is a permanent search, which is searched exactly because it does not exist 24. Justice is something that without it values are no longer values for valuing nothing!
There is no divine or natural justice in the world, there is only the justice of men, who look for it and try to historically externalize if with laws; however such laws do not compulsorily express the real sense expected from justice, but rather and frequently what economic and political powers expect from it! It is currently impossible to talk about health justice in our country where the vast majority of the population has no basic access to primary care. Every citizen has the right to fight for justice, because it belongs to no one, to no political party, state regimen, law or code 24; it is simple an ideal to be reached.
Ethics is a valuable weapon to discuss social problems and bioethics is valuable to discuss health problems. The anesthesiologist, as any other physician, should be inexorably guided by the principles of beneficence and non-malfeasance, or by the respect to patients' autonomy and justice. Anesthesia should be performed to abolish nociception during surgical procedures, relieving postoperative pain and also preventing relevant and predictable adverse reactions and side effects. Patients have the right to be clearly informed about the medical act, discussing with the professional their individual interests and values which, within certain limits, should be respected. And finally, all patients have the right to quality anesthesia, regardless of race, religion, social bracket, political orientation or any other thing. Altogether, this will contribute to improved anesthesiologist-patient relationship and, if the work is well done, patients will be happy and physicians will run lower risks of future claims.
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Dr. Artur Udelsmann
Av. Prof. Atílio Martini, 213
13083-830 Campinas, SP
Submitted for publication
30 de agosto de 2005
Accepted for publication 6 de fevereiro de 2006
* Received from Departamento de Anestesiologia da Faculdade de Ciências Médicas da Universidade de Campinas (FCM-UNICAMP), Campinas, SP.