Inaction in Philosophy, Medicine and Law

Hippocrates famously said that doctors should do no harm–but said nothing about whether or not they should allow it.

If you push a man off a bridge and he drowns, you’re wanted for murder. But if you cross a bridge and see a man drowning in the water below, and you choose not to save him, you’re not wanted for murder. We know that the law punishes action, but not inaction, even if the two produce the same end.

The above case, though, doesn’t tell us a whole lot about why harm caused by inaction goes unpunished. Maybe an inaction that produces harm is inherently less heinous than an action that produces the same harm. Alternatively, maybe inaction is just harder to punish. How could law enforcement hope to track down every innocent bystander that crosses the bridge? Another explanation might be that to punish harm caused by inaction would be to encourage a different kind of harm: the man who jumps into the river to save a drowning man could end up drowning himself.

It turns out that medical case law offers considerable insight into similar questions of inaction. By examining a few cases, we can approach an answer as to why, exactly, harm caused by inaction tends to be tolerated.

A review of medical case law

In 1978, Robert McFall, who suffered from a rare bone marrow disease known as aplastic anemia, sought a court order that would force his cousin, David Shimp, to donate his own bone marrow to save McFall. Shimp was the only available matching bone marrow donor. But in the ensuing McFall v. Shimp, Judge Flaherty refused to grant McFall’s requested court order. In his concluding statement, Flaherty stated that:

For a society which respects the rights of one individual, to sink its teeth into the jugular vein or neck of one of its members and suck from it sustenance for another member, is revolting to our hard-wrought concepts of jurisprudence. Forcible extraction of living body tissue causes revulsion to the judicial mind. Such would raise the specter of the swastika and the Inquisition, reminiscent of the horrors this portends. (1)

In 1987, George Washington Hospital sought to perform a c-section on A.C., a 27-year-old woman with terminal cancer. Doctors held that, since she was expected to die before the pregnancy went to term, delivery via c-section was the the only possible means by which they might secure the child’s survival. A court order authorizing the c-section was granted, and the risky surgery was performed, despite A.C.’s wishes against it. Unfortunately, both woman and child died within a few days of the operation.

A few years after the incident, in In Re A.C., the District of Columbia Court of Appeals voided the 1987 decision. The judge argued that the lower court had been incorrect to prioritize the child’s right to life over the mother’s right to bodily integrity (2).

Courts have also ruled that a patient may refuse for herself a life-saving procedure. In 1914, Mary Schloendorff refused to consent to the removal of a malignant tumor. The doctor disregarded Schloendorff’s refusal and removed the tumor anyway. In Schloendorff v. Society of New York Hospital, the judge ruled that Schloendorff’s doctor had acted wrongly. The judge concluded:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages. (3)

Why we tolerate inaction: narrowing it down

A common thread runs through each of these cases. In each case, a court recognizes a plaintiff’s right to commit murder by inaction. McFall effectively kills his cousin through inaction. A court recognized that A.C. had the right to refuse a c-section, even that meant killing her child. And, interestingly, a court recognized that Schloendorff had the right to kill herself by inaction. In other words, the doctor was wrong in preventing her from doing so.

Another common thread in each of these cases is that, importantly, a court would not recognize an individual’s right to commit the same harm by action. McFall died of a massive hemorrhage several weeks after the verdict; if Shimp had physically induced that hemorrhage in a healthy man, he’d be wanted for murder. At A.C.’s stage in gestation, elective abortion is generally not tolerated. Finally, doctors would be right to refuse a patient’s wish to commit suicide by action. It’s perfectly reasonable to physically restrain a self-injurious patient, for example.

So we’ve arrived back at our original question: why is harm by inaction tolerated, but the same harm by action is not?

Our first example, concerning the man on the bridge, was pretty murky. Perhaps, as we mentioned, inaction is simply harder to punish. After all, many people might have crossed that same bridge. Ought we to track down and punish them all? This variable, though, disappears in our bioethical cases. In all three of our cases, only one patient committed harm by inaction or wished to do so. Still, courts ruled that that one person ought not to be punished or coerced. So, we cannot cite practical reasons for not punishing the harm-doing bystander.

What about harm to the potential saver? A man who jumps in the river to save a drowning victim could just as easily drown himself. And it’s unfair to force a man to go on a rescue mission that could be harmful. Actually, a few of our bioethical cases fall to this criticism as well. Bone marrow donation is painful and can be dangerous, so that alone could have been enough reason to rightfully decline the procedure. As the judge mentioned, we wouldn’t want a society where one feeds at another’s jugular for sustenance. And c-sections are certainly dangerous too; in fact, in A.C.’s case, it was fatal. So in these cases, courts could be recognizing the right to inaction, that permits harm, but that prevents another type of harm, as opposed to mere inaction that permits harm.

But our third case settles this issue, too. In the case of suicide by inaction, unnecessary and unfair harm to the saver isn’t an issue here, because there is no saver. No one is being bled from the jugular. There is only the saved, and it’s certain that the saved stands to experience a net benefit from the procedure in question. Still, a judge upheld the patient’s right to forgo that benefit, and therefore to do upon herself net harm. And, once again, a judge would not have respected her right to commit harm by action. Thus we’re left with the conclusion that harm by inaction is more tolerable than harm by action, for some intrinsic, fundamental reason.

Why we tolerate inaction: from law to philosophy

We’ve struck down several superficial explanations for the law’s tendency to tolerate harmful inaction. It seems, then, that inaction, even if it leads to harm, is for some reason intrinsically palatable.

And the reason, I suspect, lies in our deeply-held respect for the standard course of nature or for nature’s way of doing things. If if you die of cancer, you died according to nature’s way. But if you die by someone else’s hand—or by your own—nature’s way has been sabotaged.

When a gazelle falls to the dusty ground of the savannah, its neck clenched in a lion’s jaws, the gazelle died by nature’s way. And we don’t mind. But when the gazelle falls to a bullet from a poacher’s rifle, nature’s way has been sabotaged. And we do mind.

When a student takes amphetamine to treat ADHD, he’s brought himself closer to the state nature intended for him, and we don’t mind. But when a healthy student takes amphetamine to gain that extra edge, so he can keep writing his paper throughout the night, we do mind. That’s because the student has taken himself further from the state nature intended for him.

Man has spent his entire anthropocene era carving a path of industry through nature’s serene indifference. He has played God. And he feels guilty about it.

And so when mother nature, in the form of a metastatic tumor, seeks to lessen our ranks, and her victim obliges, the least we can do is to stand back and let her be.

References and further reading

  1. McFall v. Shimp
  2. Maternal Decision Making, Ethics, and the Law from the American Congress of Obstetricians and Gynecologists
  3. Schloendorff v. Society of New York Hospital
  4. Brain Gain: New Yorker article about students who seek neuroenhancement via the use of amphetamine and other drugs
  5. Military Funds Brain-Computer Interfaces to Control Feelings. We’d love to use brain implants to cure PTSD–but we recoil at the thought of using them on healthy patients.
  6. The Dice of Life. The legal system punishes a pharmaceutical company for driving a man away from his natural state
  7. Fighting Chance. Besting nature constitutes a collective action problem. We don’t want anyone else to do it, but we want to be able to do it ourselves
Advertisements

12 comments on “Inaction in Philosophy, Medicine and Law

  1. Ben says:

    In his Theory of Moral Sentiments, Adam Smith describes a similar phenomenon. Governments and civil societies violently resist when people disrupt society’s natural course. Governments don’t symmetrically demand, however, behavior which contributes in a positive way to modify this natural state of affairs. From the TMS:

    “When one man attacks, or robs, or attempts to murder another, all the neighbours take the alarm, and think that they do right when they run, either to revenge the person who has been injured, or to defend him who is in danger of being so. But when a father fails in the ordinary degree of parental affection towards a son; when a son seems to want that filial reverence which might be expected to his father; when brothers are without the usual degree of brotherly affection; when a man shuts his breast against compassion, and refuses to relieve the misery of his fellow-creatures, when he can with the greatest ease; in all these cases, though every body blames the conduct, nobody imagines that those who might have reason, perhaps, to expect more kindness, have any right to extort it by force. The sufferer can only complain, and the spectator can intermeddle no other way than by advice and persuasion. Upon all such occasions, for equals to use force against one another, would be thought the highest degree of insolence and presumption.”

    You compared action and inaction. This quote compares two different kinds of action: on the one hand, actions which detract from the natural state of affairs, and on the one other, actions which improve it.

    In both comparisons, we encounter an imbalance. You observe that we systematically prefer inaction over action. Smith notes that we don’t commensurately condone and condemn, respectively, positive and negative deviations from the norm. Both phenomena reflect status quo bias. In your case, we become relatively less angry when people permit nature’s ills to proceed. In Smith, we see both the positive reactions to the good intervention and the negative reactions to the bad intervention — each deviations from the mean, recall — together shifted downwards.

    One cause could be status quo bias in its purest form, rooted in behavioral economics. Our irrational brains enjoy stability.

    Mom offers another explanation: To demand outright positive contributions to nature’s way would be to “impose infinite responsibilities”. This seems true, but perhaps it’s not a deal-breaker. Why couldn’t we demand positive contributions to the good, but also cap contributions at some fixed amount?

    Adam Smith hints at yet another reason. So far, we’ve placed both the bad and the good — and action and inaction — on equal footing, subsequently remarking at the apparent paradoxes. Smith’s examples suggest that the behaviors demanded respectively by justice — not committing active evils — and beneficence — committing active goods — are actually different in kind. While the former often involves violence, murder, and robbery, the latter involves gratitude, friendship, and filial love. It wouldn’t just be excessive to force these things. It would be inappropriate.

    This perhaps connects to points raised by certain philosophers — most famously, Sandel — regarding markets in sex, organs, and other controversial goods. (Markets in friendship would be equally strange.) Certain goods represent emotional meaning, and they can’t be subjected to the same “economic” analyses as can be other goods. (Is it a coincidence that your examples are all bioethical?) These comments could elucidate some of what you’ve observed.

    • Josh says:

      I agree with your comments on status quo bias. In a way, status quo bias represents the same tendency I described, which is to regard as arbitrarily valuable nature’s unadulterated state.

      I agree that it’s unreasonable to demand infinite responsibilities. But I don’t think requiring “just a certain amount” of good is the right idea either. Rather, we could demand that people do good, but only in cases where we have determined that the cost of the act of good is minimal, and the benefit of the act is substantial. Of course, determining whether each act qualifies or not would certainly pose practical issues.

      Beyond practical concerns, though: demanding beneficience, as you mention, seems inherently inappropriate. A forced act of beneficience isn’t as meaningful as a spontaneous one. See my comment about UVa’s non-toleration clause. Bioethical examples are particularly apt at demonstrating this point. It’s wrong to force one to compromise their body to aid another.

      It seems strange to consider this in point in regards to my suicide by inaction case. Here, forcing beneficience does not force one to do good on another’s behalf, since there’s only one actor. Still, though, the argument might still apply. Just as we shouldn’t force one to good for another, since doing so devalues the act of good, we shouldn’t force one to do good for himself.

  2. Nancy Diamond says:

    Forensic evidence links Jesse (“LJ”) Matthew, Jr., who was arrested in connection with the disappearance of 18-year-old University of Virginia student Hannah Graham, to the murder of Virginia Tech student Morgan Harrington in Charlottesville five years ago. Matthew is a plausible suspect in a number of unsolved abductions, sexual assaults, and murders along the Route 29 Corridor in Virginia; Matthew may be a serial killer with at least nine victims.

    Matthew, a nursing assistant at UVa Hospital, was working as a taxi driver at the time Morgan Harrington went missing. She was last seen getting into a taxi. Acquaintances and former co-workers of Matthew have informed investigators that, after Ms. Harrington disappeared in 2009, they used to joke with Matthew that he looked exactly like a police sketch of the man wanted for a 2005 rape in Fairfax, and for Harrington’s murder. Sometimes he smiled and other times, they report, he became uncharacteristically quiet. After some period of good-natured ribbing, he changed his appearance by growing his hair and shaving his beard.

    That is a stunning confession. As far as I know, reporting a suspicious person — even when a manhunt is under way — is entirely optional. Yet maybe it should be compulsory. After all, police don’t publish sketches of suspects for laughs. With at least one additional victim and possibly many more in Matthew’s wake, it’s unfortunate that there is no requirement to do affirmative good. Because by joking with Williams instead of reporting him to authorities, these acquaintances, albeit indirectly, may have killed Hannah Graham.

    A standard risk/benefit analysis is helpful. None of us should be forced to do a good deed if by doing the deed we must travel to far-away countries and risk our own lives (think Medicins San Frontieres treating Ebola patients in West Africa). In such circumstances Good Samarians should act voluntarily. But if a five-minute phone call to the police hotline could save lives, perhaps it should be required. Any other outcome is tragic.

    • Josh says:

      Interesting connection to the Hannah Graham case.

      The UVa honor system, actually, makes a point of NOT considering as an honor offense the failure to report an honor offense. UVa’s non-toleration clause was eliminated in the 1970’s. It still hasn’t returned, although reinstatement is debated almost every year.

      As for the reason why UVa Honor tolerates passive harm, my arguments about nature’s way probably still hold. Also, there are plenty of practical reasons to tolerate harm here. We know (consider the drowning man example) that it’s practically difficult to prosecute everyone who fails to do good. Imagine the burden placed upon a law enforcement that’s tasked with punishing those who don’t report, and those who don’t report those who don’t report, and so on. A “non-toleration clause” could create a long string of violators, and no possibility of catching them all.

      The punitive branch in charge of tracking down this long string of violators would look authoritarian and weak, simultaneously. It’s reminiscent of an ancient Chinese dynasty, which punishes dissent, and the failure to report it, with death, but is nevertheless overthrown in a peasants’ rebellion within a few decades.

      Such a government is immensely unpopular, not only because it strictly punishes the failure to do good (good being, in this case, reporting dissenters), but also because, in forcing people to do good, the government makes clear the fact that it doesn’t expect people to do good on their own.

      To put it differently, a government that doesn’t mandate good declares its trust in its constituents’ readiness to do so themselves. Its constituents, then, are more willing to help enforce the laws of a government that has established itself as trusting. Now, good has become something that the government no longer needs to mandate.

      These lofty ideals might not stand in a world of Jesse Mathews Jr.’s. But I think they hold up pretty well here on Grounds.

  3. Nancy Diamond says:

    Some states — Oregon is an example — have mandatory reporting laws. However, the set of incidents that must be reported is limited to cases of suspected child abuse or neglect (on the logic that this is a class of people that is particularly vulnerable), and only certain governmental officials, medical personnel, lawyers, psychologists, and a few other professionals are mandatory reporters under the law.

    For everybody else, the reporting of child abuse and neglect is entirely voluntary.

    The standard for when the obligation is triggered under the law is “reasonable cause to believe” that a person has abused or that a child has been abused. Question 11 posed by the Oregon State Bar: What If I Am Wrong, And There Really Was No Abuse? A person who acts in good faith in making a report of child abuse and who has reasonable grounds for doing so, is immune from civil or criminal liability for making the report and for the content of the report. (Presumably this person would also have a defense to defamation and other claims brought by the wrongfully accused?).

    Interestingly, the reporting obligation is limited to children or suspected abusers “with whom the official comes in contact,” I imagine that this contact test is intended to prevent the situation where a person is required to report something occurring in a far-away state that he/she heard about incidentally on the news. However, it creates a strange disconnect. If you have compelling evidence — through reports from witnesses or otherwise — that your neighbor has abused multiple victims, but you had no “contact” with those victims or with the neighbor, then it seems you are off the hook.

    • Josh says:

      I’m glad that you brought up mandatory reporting laws for child abuse. So far, we’ve discussed the fact that active harm is punished, but passive harm is not punished, no matter how egregious (like the failure to report Hannah Graham’s abductor). Further, we’ve mentioned that some of these very egregious cases, it seems like passive harm should be punished.

      The fact that mandatory reporting laws do exist for child abuse indicates that there are cases in which an act of passive harm is so egregious that it should be punished. The relationship between a pediatrician and an abused child, for example, is a fiduciary one, and the doctor might be the only person in a position to help that child–which means that the child’s welfare might rest solely in the doctor’s hands, and that the doctor would share a great deal of responsibility for a failure to uphold that welfare. In this case, legislation has decided that a pediatrician’s failure to report child abuse is an act of passive harm that’s so egregious that it merits punishment.

      What mandatory reporting laws for child welfare should show us, above all, is that our reluctance to punish acts of passive harm does have a limit. And, now that our threshold has been found, we might consider whether or not we should lower it. If we can punish the child’s pediatrician, why can’t we punish his teacher, or his neighbor? Why can’t we punish all failures to report child abuse, or failures to report abuse in general? Why can’t we punish Jesse Matthews’ coworkers?

      Inaction, often thought of as a hallowed ground immune to punishment (perhaps due to our deference to the course of nature), can in fact be punished in a very narrow range of cases. We ought to consider widening that window.

  4. Phil Holbrook says:

    If you are transporting a giraffe in the back of your pick up truck and underestimate the height of a bridge you drive under causing the unfortunate death of the giraffe is it considered murder or simply nature taking its course with a little help from modern technology?

    • Josh says:

      Haha, I would have been okay with not being reminded of that story.

      The man is responsible for killing the giraffe, just like he would be responsible for killing a pedestrian if he mowed one down at a crosswalk. In both cases, he kills actively, since he’s driving the car. It’s not fair to say that the killing was done by the concrete overpass, or by the car’s front bumper, as opposed to the man himself.

      It only counts as passive harm if someone dies because of your not doing something. But I see that your point might be that the whole active/passive distinction is somewhat arbitrary and meaningless. And the point is well-taken. If anything, the fact that this distinction is meaningless should go to suggest that the punishments for active and passive harm should be equal.

      • Phil Holbrook says:

        I think this plays into the development of criminal negligence law. Sometimes such a charge might be the result of an action but the charge could also be for a passive act. Someone may lack the intelligence required to safely transport a giraffe resulting in the animals untimely demise. But how do we know who has or does not have the intelligence to transport giraffes? Making that determination would be the key to determining if a person was responsible for
        causing active or passive harm.

        One other comment comes to mind from back in the day when I was a bit younger and working as a lifeguard. Rule no 1 was that self preservation was never selfish. You do point that out in the blog. But ones training and skill level may need to be factored into the equation. So if at 22 fresh off training as a master certified lifeguard I see a person drowning and do nothing I might be held to a higher level of responsibility then other bystanders. So clearly ones ability to understand their own strengths and limitations might change the equation from what appears to be active vs passive harm.

        There certainly is a difference between someone who has an accident and falls into a river vs someone who has a tumor and chooses a certain path.

        Bottom line is that active vs passive harm might not always appear as we might wish it to.

  5. Nancy Diamond says:

    I had begged not to be told the story of the giraffe murder.

    Now that I know it, however, that’s not an example of harm by inaction. The conduct in that case was, at the very least, negligent, but more likely reckless or even criminal. A person who is transporting a giraffe must do so with due care.

    Typically, harm by inaction is not punishable unless the actor had been accorded responsibility, for whatever reason, for the act. For example, if a child starves, the child’s parent has committed a crime, because parents are legally responsible for the care of their children. But a stranger is not accountable for the child’s death. If the rule were to change — if every person in society were responsible for the harm that befalls every other person — our duties would be infinite and there would be no limit to our liability. Taking once again the example of the starving child, the child’s neighbor would be responsible too, no less than the parent, because the neighbor could have, with a few casual inquiries learned of the child’s plight and could have arranged to provide food. In fact, the neighbor would be responsible even if it would have required a major investigation to learn of the child’s condition and even if the neighbor would have had to take out a loan to pay for the food. But it would not stop with the neighbor. Every other person in the city — or in the next city — would also be responsible on the logic that such persons could have donated money that would have paid for the child’s food. How much money would they be expected to donate? No matter how much they contribute, there is some starving child in some city who could have benefited from additional nourishment. It would not stop with starving children, either. We would all have a duty to improve the nutrition of kids who eat too much Burger King and to assist with their medical expenses. In short, inaction is not punishable because there must be, for practical reasons if not for moral ones, a boundary that defines the extent of a person’s duties.

    • Josh says:

      Don’t confuse the statement harmful inaction should be punished in some cases with the statement harmful inaction should be punished in all cases. The former can certainly be argued, and in fact inaction is punished in some specific cases. The latter, on the other hand, is something no one, including me, would ever attempt to argue.

      The whole point of my bioethical examples was to show that, in some cases of inaction, practical factors are not relevant considerations.

      It might be fair to create a law saying that harmful inaction is punishable only in cases where the action demanded of the actor is minimal, and the harm that would be prevented by the action is substantial. Mandatory reporting laws for child abuse, then, would constitute a specific case of this more general law. This particular law, like my bioethical examples, would side-step the practical problem of having to pay for disadvantaged children’s medical expenses. This action demands too much of the actor.

      So practical concerns should not apply to all cases of harmful inaction. Moral concerns, though, still might.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s