A terrible consequence of consequentialism

A terrible consequence of consequentialism June 12, 2013

A few weeks ago, in The New York Times Magazine, the Ethicist column gave some terribly unethical advice.  A doctor wrote in with this dilemma:

Years ago, I saw a young patient with headaches, who disclosed — reluctantly — that he had committed a serious crime and that somebody else took the fall for it. I believe he was telling me the truth (his headaches soon resolved after the confession). Before his admission, I assured him that whatever he told me would not leave the room. Later, without giving specifics, I consulted our hospital lawyer, who told me that we were under no obligation to report the incident, because the patient wasn’t in danger of hurting himself or others. But the future of an innocent man hinges on two people’s consciences, my patient’s and my own. I feel like a coward, hiding behind the Hippocratic oath, doing nothing.

The Ethicist’s excerpted solution:

Here is the root of the problem: You promised a man that you would keep his secret in confidence, only to have him tell you something you now view as too important to remain unspoken. The stakes are pretty high; the possibility of someone’s being convicted of a crime that he did not commit is awful. But you’ve painted yourself into a corner. You should not tell someone “Whatever you tell me will never leave this room” if that promise only applies to anecdotes you deem as tolerable. It doesn’t matter if you’re a physician or anyone else. The deeper question, of course, is whether breaking this commitment is ethically worse than allowing someone to go to jail for no valid reason. On balance, I have to say it is not.

I would advise the following: Call the patient back into your office. Urge him to confess what happened to the authorities and tell him you will assist him in any way possible (helping him find a lawyer before going to the police, etc.). If he balks, you will have to go a step further; you will have to tell him that you were wrong to promise him confidentiality and that your desire for social justice is greater than your personal integrity as a professional confidant.

He mentioned that he would be reluctant to follow his own advice, but the Ethicist saw that as a moral failing in himself, not in his advice.  I disagree.

The Ethicist is crippling his own ability (and that of anyone suspected to subscribe to his philosophy) to make a promise.  A promise is not an indication of present beliefs (“I don’t plan to repeat anything you say in this room”) it is a bind on future action (“I won’t repeat what you say, even if I wish I hadn’t made this promise later”).  If he isn’t comfortable making that kind of promise, he has the option to tell patients and others up front, but treating promises as breakable upon reflection dilutes them for him and everyone else.

The covenant marriage movement is meant to counteract this kind of thinking in one sphere.  In an age of no-fault divorce, they’re trying to carve out a special niche, clearly differentiated from mainstream marriage, where a change of heart isn’t sufficient justification to break a promise.  But there isn’t an equivalent in most other spheres of life.  One can say only “I really mean this promise,” and a reader of the Ethicist’s column might reasonably hear a silent “right now” at the end of that phrase.

Promises are costly, as the Ethicist recognizes, so we shouldn’t use them casually.  A doctor promises confidentiality to her patient so that he won’t hold back anything she needs to know in order to treat him.  A priest keeps the secrets of a penitent so no one lets fear of temporal punishment keep them trapped in a state of sin.  Partners contracting a marriage promise that “This is the life I choose / This is the thing I can’t bear to lose” — that their new bond makes them family, and that if passion or even love fades, they plan to stick by each other.

But the way the Ethicist plays fast and loose with promises, and his willingness to set aside his own pangs of conscience leaves him vulnerable to a pride in his own dirty hands; he was strong enough to make the “hard” choice. It’s important to keep promises inviolate for the doctor’s sake, as much as for the sake of the patient.  It frees us from the temptation to rationalize or to let our own cleverness serve as justification for the actions we take.  Thinking your way around the rules doesn’t expand your scope of action, it robs you of the ability to bind yourself (whether or not others still are taken in).

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