Recent eLetters

The article “Medical paternalism in House M.D”. by M R Wicclair in Medical Humanities 2008;34:93-99 made for interesting reading. However there is one point which needs further clarification in the context of English Law. The author states “Informed consent—the principle that, except in emergency situations, medical interventions require the voluntary and informed consent of patients or their surrogates—is a core ethical principle in healthcare”. The law surrounding the refusal of medical treatment, including life- saving treatment, seems clear: the competent patient has the right to refuse treatment, and medical treatment without consent, or in disregard of a valid advance refusal, amounts to a battery(1). Only if a patient is incompetent and no valid advance directive is in place, can the patient's treatment refusal be overridden in the patient's best interests(2). However in Re T (Adult Refusal of Medical Treatment)(3), Lord Donaldson stated that there was a misconception that the next of kin could be consulted regarding consent in an emergency situation because the next of kin had no legal right either to give or refuse consent on behalf of another. Hence this differs from the authors comment that surrogates/next of kin’s can provide informed consent for a patient.

Word Count- 200

References-

1.Airedale NHS Trust v Bland [1993] AC 789 (HL) at 882 per Lord Browne-Wilkinson; Re T (Adult: Refusal of Treatment) [1993] Fam 95 (CA) at 102 per Lord Donaldson MR; Re MB (Medical Treatment) [1997] 2 FLR 426 (CA) at 432 per Butler-Sloss LJ; R (on the application of Burke) v General Medical Council [2005] EWCA Civ 1003 at paras 31 and 57 per Lord Phillips MR; Re AK (Medical Treatment:Consent) [2001] 1 FLR 129

2.Based on the necessity defence, see Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 (HL) at 78 per Lord Goff; Bland, above n 1 at 883 per Lord Browne-Wilkinson; Re T, above n 1 at 103 per Lord Donaldson MR

3.Re T (an Adult: Refusal of Medical Treatment) [1992] 3 W.L.R. 782 at p. 786

This response to T J Papadimos outlines some of the relevant elements in Nietzsche’s philosophy in order to develop its conclusions. We find that Papadimos’s attempt to illuminate the causes of litigation against doctors in America fails through misunderstanding the analysis of convention and the idea of the superman in Nietzsche’s thought.

Papadimos’s perspective [1] is rather odd, he points out that ‘Medical malpractice is of increasing concern ...’ (p 107) ie the physician’s improper or negligent treatment of the patient is worrying, but seeks a remedy in reducing patients’ litigiousness rather than improving medical practices. He suggests that ‘a primal cause of the litigiousness of the public against doctors results from resentment or “ressentiment” ’(p 107) but avoids stating the relationship between medical malpractice and resentment, perhaps because it is too obvious. He understands such litigiousness to have its 19th century source in the American courts relaxing ‘the standard for institution of civil tort suits’ (p 107) but this remark does not indicate or explain the required just standard between doctors’ practices and patients’ health outcomes. Instead he seeks to offer Nietzschean ideas to explain and reduce the public’s apparent litigiousness against doctors.

Papadimos is a sympathetic observer of the health of American society; he thinks the medical community ‘must encourage health care for all’ (p 110) but the Nietzschean vehicle he has adopted to reduce litigiousness does not fire on all cylinders. The analysis he has developed bears little resemblance to Nietzsche’s thought, and it does remind us that Nietzsche is a subtle writer who does not expose his thought to the casual reader.

What one has in essence in health care in this context is one social group providing benefits for society at large. Generally the medical professions are highly privileged relative to their recipients and the legal business is available to protect them and their adversaries, but Papadimos sees resentment as the problem, and from his adopted German perspective refers only to the doctor’s adversaries. He offers too, the ambitious solution ‘to limit their exposure to litigation’ (p 107) by doing some philosophy on the causes of ‘patient / doctor conflict’ (p 107).

Digression on Nietzsche Nietzsche talks of noblemen as the ancient originators of the idea of good, but from this myth after a long social process is developed the fruit which is the sovereign individual or, for convenience ‘superman’. There may be a number of such supermen at any one time but there would not be according to Nietzsche a group of them pursuing similar ideals: pace Papadimos, the idea that doctors as a group would be supermen is not a concept one could gain from Nietzsche. In giving an account of this apex of mankind in Nietzsche’s thought an essential element is the idea of overcoming one’s indoctrinated self, ie gaining an intellectual independence from conventions. Social forces for Nietzsche are invaluable in starting the training of the individual to allow him to overcome the cultural constraints. But we need more: the picture is of the primitive senuous being gaining a disciplining culture to impose a form on the bodily feelings but the culture must then be transcended to allow the development of the impassioned and independent superman. Darwin’s idea of the survival of the fittest in a species, or that survival is the purpose of life, is countered by Nietzsche’s method of developing the controlled passion of the individual: his ideal is the vigorous individual who has control of himself and his environment.

He opposed Christianity for elevating weakness in society and imposing control on the individual from outside him; and secular morality too is rejected as an abstraction from the individual. He sees the mass of people as cloistered by conventions; these ‘herd values’ replace individual initiative by passivity. Even the life of reason is denigrated by him for it assumes the reality of truth and objective standards of value. The resulting social failing is, for Nietzsche, that the feelings of the conventional man are interpreted and constructed by the social ideas around him; a paradigm of this is the influence of the religious perspective. Nietzsche’s ideal of the strong individual is not a social ideal; each superman makes his own individual values out of his biological passions; the resultant ruthless life would justify itself. On this perspective, to affirm life is to create your own values, and when this brings you into conflict with others, you must sweep them aside.

We can see that Nietzsche does not regard society as an end in itself or as a self justifying condition of man. The importance of society for him is that it provides a breeding ground for the ultra strong person. In this context his outstanding individual essentially attains his high status because of his individual passions. What social forces do for the potential superman is to discipline his passions: the controlled passion of the individual is then the vehicle for his superiority. Darwin’s theory of the survival of the fittest takes its context from the group, ie in a competitive situation the better adapted individuals do better; they are better adapted to a particular situation; ie their powers or abilities are good relative to something outside them. What Nietzsche is resisting here is the complete adaptation of the individual to the social environment: the superman is superior because of his inner constitution. As he becomes more himself in his progress to controlled passion he elevates himself over the social forces which have disciplined him but not changed his nature: the superman pulls himself up by his own bootlaces. Nietzsche remarks that ‘Insanity in individuals is something rare – but in groups, parties, nations, and epochs it is the rule’ (Nietzsche [3], maxim 156). He sees in the way men are trained to think and act an excessive reliance on conventional thought expressed in groups. The idea is that the training of the young to adopt conventional thought patterns, perhaps the A levels of today, undermines the intellectual independence of the individual. Nietzsche is suggesting that one has to rise above one’s training which with one’s natural intelligence creates an independence from social custom. Common sense will then be superseded by super sense.

In Darwin’s theory we see that survival is a relationship to a situation; there are no intrinsically beneficial characteristics for success within the individual, it just happens that in this situation this group of characteristics produced the effect of survival. The immediate question is What is important in human life? For Darwin, it is the success of trial and error; differently constituted organisms do more or less well in competitive situations. Darwin’s success is a relative success, the larger context, physical or social, determines the value of the organism. This strikes Nietzsche as a mistake which overlooks the essential nature of man: he believes the world should conform to its superior makers. This is the centre of his transvaluation of all values; the model for sheep is to be replaced with this paradigm for man.

The elevation of doctors There is a modern element of evaluation of social class in Papadimos’s exposition of Nietzsche, ie the ‘herd’ is taken as the socially inferior part of society. But Nietzsche is offering a more neutral or mechanical model of society, ie conventional thought permeating society is not an indication of intellect or value. Papadimos believes that the herd instinct in our contemporary society stems, perhaps with other things, from a perception ‘that doctors have presented themselves as: “The noble ... (as distinct from the) common and plebeian” ’ (p 107). So the common man’s resentment would be fired by their perceived arrogance in doctors. But Nietzsche uses references to the herd to express limited thought, ie most of society would have this failing. The idea of mass self-deception is not foreign to Nietzsche’s philosophy; but the idea refers not only to any socially inferior ‘herd’ but also to relatively elevated groups within society. He uses the ideas of noble and common to outline the origin of such conventional ideas as good and evil, ie for Nietzsche these are myths; and additionally for his scrutinized societies, and ours, doctors would be part of the herd. They would be governed by conventional ideas and as such would not be supermen. Papadimos see the doctor as ‘a sovereign individual, like only to himself, liberated again from morality and custom ...’ (p 108), but seems not to see from this quote that the doctor would be free from morality and custom, ie according to Nietzsche, uncaring of others. Nietzsche says of doctors and nurses that they are themselves sick, ie their presuppositions are social conventions, eg as in science. Thus, doctors like scientists, believe that they can build knowledge only on a firm foundation of truth without any presuppositions; whilst Nietzsche believes there can be no science without presuppositions: there must first be a ‘faith’ to give direction, and ‘the value of truth must for once be experimentally called into question’ (Nietzsche [2] p 153).

Over long ages, conscience has been traditionally burned into the minds of men, and the individual superman with huge effort has to overcome this acceptance of conventions. For the member of the herd, his conscience is illustrated by his denial of self, it is asceticism. This has been produced by a history of bloody suffering which Nietzsche thinks is needed for acceptance by the herd of social duties. The sort of suffering involved is from practices like stoning, breaking on the wheel, piercing with stakes, boiling in oil, and flaying alive. Papadimos sees the Hippocratic oath as ‘burned into the mind of ... doctors’ (p 108) but the terror which accompanies this memory ‘whenever we become “serious” ’ (Nietzsche [3] p 61) refers to the power of convention forming herd consciousness. We can see that for the superman, his conscience or dominating instinct is the fulfilment of self. This is a polar opposite to the conventional man. Papadimos without evidence links the conscience of the sovereign individual to that of the doctor. Doctors are relevant here only to the extent that they are part of the herd; the Hippocratic slogan ‘do no harm’ is a conventionally rational injunction which the superman rejects.

The superman rarely promises anything and then only when he knows he can fulfil it; for Nietzsche the practice of promise keeping weakens people: it makes them regular and predictable. The superman lives in the present in the full heat of his passions; he is forgetful of the needs of the herd. Papadimos believes that ‘if doctors are sovereign ... they have earned the right to make promises (through their education and station) ... (though) Doctors will reason that they never promised the patient a cure’ (p 108). He thinks it is the patients’ error to think that not being cured ‘becomes a broken promise’ (p 108). We have the tortuous display of an attempt to link the characteristics of the superman with Papadimos’s wish to explain litigation in modern America.

But this failure of explanation pales into insignificance when one reads ‘The independence of the doctor as a sovereign individual might be influenced by oversight organisations’ (p 109). As if the superman could be successfully accused by an oversight organisation of misconduct; this is something Nietzsche’s sovereign individual would laugh at. He is not to be trammelled by the moral standards of the herd which he has already overcome. An observer of doctors may have a high regard for them but it is counterproductive to seek to describe them in terms of Nietzsche’s superman.

Doctors facing lawyers Papadimos wishes to explain the mechanisms of blame; he considers obesity, cardiac disease or bad lungs and says ‘All surgeries, procedures, and treatments can have complications, but these complications or bad outcomes are someone else’s fault from many a patient’s perspective’ (p 109). His position is that patients ‘cannot bring themselves to blame their obesity ...’ (p 109) but of course in litigation against doctors the evidence against the doctor would be what the doctor did or did not do, ie the patient’s physical and mental condition would be a given, whilst the medical diagnosis and treatment would be under legal scrutiny: blaming per se would be irrelevant. But Papadimos feels he has to interpret the lawyer’s contribution in terms of Nietzsche’s description of the ascetic priest.

He suggests that ‘doctors have tried to decide what was good and right for patients ...’ (p 107), but we can see that the superman serves his own values, not the values of others, whether patients or not. Quoting Nietzsche, Papadimos sees the ‘pathos of nobility and distance’ (p 107) as creating a mentality in the herd as ‘us’ and the physicians as ‘them’ which is ‘abetted, to some extent, by the legal profession (the anti-ascetic priests ...)’ (p 107). We may remember that Nietzsche’s idea of the ascetic is the denier of self as illustrated by the believer mystified by the priest into denying his feelings, ie interpreting them in terms of the priest’s concept of sin. Papadimos’s view of the lawyer as anti-ascetic priest, ie by whom sufferers are urged not to blame themselves, is unconnected with Nietzsche’s account of the priest’s interpretations of individual feelings in terms of religion. The priest teaches sinners to blame themselves for their mental torture whilst teaching them to be redeemed sinners.

Papadimos suggests that the ascetic priest ‘historically represents the ascetic ideals of disinterestedness ...’ (p 109) but we see that the priest is most interested in recruiting and maintaining his flock. His injunction to ‘blame yourself’ is part of his method to bring people to God, ie ‘your suffering shows you the way to God’. Asceticism for Nietzsche is literally a denial of one’s subjective self; it is a contrary ideal to his perspective and the ascetic priest is the arch exponent of the practice. Generally in this context of the natural or unconstructed inner life of the individual, Nietzsche talks of ‘a feeling of psychological inhibition’ (Nietzsche [2] p 130) whilst remedies for this ‘are sought and tested only in the psychological-moral domain’ (Nietzsche [2] p 130); this latter is his ‘most general formula for what is usually called a “religion” ’ (Nietzsche [2] p 130). The model is that a set of bodily conditions in the individual are interpreted by the priest as mental conditions having their significance in social or religious contexts. His view is that in fact physiological conditions from various origins depress the person and the resultant feelings are interpreted by the priest in terms of religious ideas like sin. It is the success of this which wins to the church is mass adherents. The resentment of the members of the congregation is harnessed by the priest to prevent its exploding outwards into society, and then redirected back into the individual to maintain adherence to the view and doctrines of the church.

Papadimos sees the ‘lawyer as anti-ascetic priest’ (p 109), ie the patient is encouraged by him to express her feelings against doctors in court. But her feelings have to have an evidential and legal basis, ie the feelings are relevant to the law only to the extent that their verbal expressions reflect the law. The patient’s resentment is externally deflected by the lawyer, ie it is treated in a contrary way to the priest’s method, and with a contrary purpose. We see that there is no explanation given in the description of the lawyer as anti-ascetic priest, for they have nothing in common which could be used as a basis to use the priest’s methods to illuminate those of the lawyer. Papadimos’s attempt to use the idea of the ascetic priest does not clarify anything about the role of the lawyer; and one can see this in one of his conclusions about problems in the practice of medicine: ‘Government inaction ... may be failing American society’ (p 110).

The simple point is that there is no relevant connection in Nietzsche’s thought between his concept of the nobility and doctors. Papadimos quotes comments about the sovereign individual and then links these to doctors; but there is no textual evidence for this and the imaginative exercise Papadimos indulges in produces only oddity. In Nietzsche’s view doctors would be part of the herd, they would be governed by conventional values; their power or wealth would not save them from being slaves. Papadimos’s reflection of Nietzsche’s writings is an unfortunate misappropriation of the thought of one of the finest exponents in the world’s intellectual history.

Author’s affiliations C Parker Leeds (East) Research Ethics Committee, Lay Member Clinical Sciences Building, Room 5.2, St James’s University Hospital, Beckett Street, Leeds, LS9 7TF

Competing interests: none

REFERENCES

1. Papadimos TJ. Nietzsche’s morality: a genealogy of medical malpractice. J Med Ethics; Medical Humanities 2006; 32: 107-110. doi: 10.1136/jmh.2005.000223

2. Nietzsche F. On the genealogy of morals, New York: Random House, 1967.

3. Nietzsche F. Beyond good and evil, New York: Vintage Books, 1966.

As a student, I prided myself on having an independent and often controversial approach to a whole host of contemporary issues. I confess I looked down on those junior doctors a few years ahead of me who seemed to do nothing except work and bland activities such as ‘going to the gym’. Where was their activism, their passion? Surely I would be different, campaigning for change on issues that mattered most – the developing world, health inequalities in the UK, unravelling the influence of the pharmaceutical industry in medicine? Amazing how quickly one becomes a neat little clone. Perhaps you fight against the system for the first house job, second house job…then the insidious march along the medical assembly line begins. Suddenly you find yourself auditing the most unbearably mundane topics in your spare time, getting every procedure signed for in logbooks, even recording your every movement on monitoring cards that tell you to write ‘natural break’ when you go to the bathroom. As the indoctrination continues, you find yourself doing increasingly bizarre things to comply with the system. One day let yourself are shooed off the ward, half-completed blood forms in hand, on the stroke of five p.m. by an agent of the state - ‘Shame you only had time to examine the patient’s right leg, doctor, but you know it’s a breach of contract to stay after five.’ The next day you find yourself, still suturing Mrs. Jones’ arm, being wheeled along with her into the short stay ward. After all, she has had the audacity to spend 3 hours, fifty nine minutes and 59 seconds taking up valuable space in the Accident and Emergency department. Every second counts in the new patient-centred NHS. Or even if it doesn’t – Big Brother is there to count it nonetheless.

I went through your article and I must tell you that I'm amazed at how true most if not all of the things you said about being a medical student are. I am a 3rd year medical student in the University of Ibadan, Nigeria and I just finished my Part I MBBS exams which my room-mate and best friend flunked. i just searched google for 'how to survive medical school' when I came across your letter and while reading it, i remember thinking aloud and reminding myself of incidents in the past that prove you are right especially the one about cadavers and D.R etc. it's a real good piece.