Wisdom and Ethico-Legal Practice

Ways of Seeing and Ways of Being

In: Practice Wisdom
Author: Deborah Bowman
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On Wisdom: Why “Ways of Seeing, Knowing and Being”?

This chapter considers how different ways of seeing, knowing and being might inform how clinicians and practitioners make judgements, particularly in relation to the ethico-legal questions and considerations that arise in their work. What is meant by “ways of seeing, knowing and being” and why are these useful when thinking about the nature of wisdom? Since Foucault (1976) conceptualised the medical “gaze” that characterised work in the clinic, the lens of healthcare work has been a preoccupation of philosophers, anthropologists and sociologists. The way in which a healthcare professional is trained to see is detached, expert and powerful, yet there are other ways of seeing that, it is argued, inform wise practice. Ways of knowing describes the different types of knowledge and discernment that are required when practising medicine and engaging with its ethico-legal dimensions. Ways of being refers to the characteristics, behaviours and qualities that inform how someone responds when managing different types of knowledge in a context where uncertainty, emotion, complexity and pressure are common. Both ways of knowing and ways of being in practice are often implicit and under-considered yet are fundamental to practice, choice and, specifically, the nature of wisdom.

This chapter discusses that relationship between wisdom, ways of seeing, knowing and being, and the ethico-legal questions, considerations and challenges of medical practice. I argue, drawing on Havi Carel’s (Carel, 2013, 2016; Carel & Kidd, 2014, 2016) work on epistemic justice in healthcare, that wisdom, when understood as shaped by ways of seeing, knowing and being, serves as a valuable force in healthcare: as a counter to inherent imbalances of power, as a guide for education and development, as protection against burnout and compassion fatigue and as a reminder of the essence of what it is to be an individual clinician and an individual patient in a demanding, resource-constrained system.

What is Wisdom?

Wisdom has been a feature of virtue ethics since Ancient times; from the scepticism of Socrates about the possibility and limits of knowledge (Miller & Platter, 2010; Plato, c. 400 BC/2010) to Aristotle’s distinction between theoretical and practical wisdom (Aristotle, 349 BC/2004; Dowie, 2000). The nature of wisdom has preoccupied philosophers for centuries with the focus being predominantly, although not exclusively, on the personal rather than the systemic.

It speaks to how an individual perceives and responds to that which he or she encounters. For the purposes of this chapter, wisdom intersects with other character traits and depends on an integration of character, mind and virtue. Ethics and ethical practice are informed by wisdom in different ways, for instance, it may be a normative ideal or virtue but it also reflects a way, even a method, of responding to moral questions and conflict.

Contemporary ethicists too have prioritised wisdom, often conceptualised as phrónêsis in recognition of the practical and applied expression of wisdom in clinical practice (Chiavaroli & Trumble, 2018; Dowie, 2000; Kaldjian 2010). For the purposes of this chapter, wisdom is considered to be a constellation of traits, dispositions and behaviours that commonly encompass the features shown in Figure 22.1. These features, it is argued, are essential to the recognition of, and response to, the ethico-legal aspects of clinical practice which are often experienced as discomforting.

Figure 22.1
    Features of wisdom.

    The Relationship between Clinical Practice, Ethics and Law

    Clinical practice prompts a myriad of moral questions and takes place within a legal framework. It is impossible for any healthcare professional to avoid the ethico-legal dimensions of their work. Yet, ethics and law as subjects are often misunderstood. Law may be seen as the “trump” card: ethics being “nice to have” but the most important thing is often regarded as ensuring that one is practising “legally”. Such a view often reflects misconceptions about the nature of law itself.

    There is often the implication that the law will provide a structure and guidance that is more valuable than ethical analysis. Yet, there are swathes of clinical practice on which the law offers only high-level direction: a section of a statute may set out a standard or requirement, but its extent, meaning and application remains a matter for interpretation. That interpretation may be advanced by codes of practice, such as those that supplement the Mental Health and Mental Capacity Acts, or delegated legislation such as statutory instruments in which terms are defined. Further attention to interpretation will, in common law systems such as England and Wales, be found in case law which may, depending on the level at which a decision is made, create precedent. Yet, the essence of cases is that they are particular and are decided on their own facts and merits. The principles of law derived from cases, such as those relating to consent in the case of Montgomery,1 are still subject to interpretation for clinicians negotiating what it is that individual patients wish to know. The law therefore depends on an integrative and interpretative approach in which knowledge of legal standards provides a starting point, but this must be considered alongside the nature of the law itself, the situation at hand and the needs, preferences and priorities of the individual patient.

    In contrast to overstating the law as definitive and therefore determinative, ethics and ethical analysis may be perceived as elusive and even “woolly”. As such, for some, ethics as a subject has limited value. The notion that multiple arguments and competing demands may exist is frustrating for some. Often too, ethics is represented with reference to “the dilemma” which, by definition, concerns choice between two options when, in practice, the challenge may be to see, name, frame and respond to multiple ethical questions or considerations presenting in a single consultation or encounter. Inherent in such misunderstandings of the law and ethics may be discomfort with uncertainty and judgement. Such discomfort is an understandable response: to have to proceed and make decisions in the face of ambiguity and unresolved, and perhaps unresolvable, questions is unsettling and anxiety provoking. It is a characteristic of clinical practice, whatever the specialty, and yet it is rarely discussed explicitly, still less with reference to the emotions that interpretation in the context of uncertainty engenders. Consider the relationship of the law and ethics in the case of Maddie in Figure 22.2.

    The law provides the ways in which Maddie’s capacity and preferences should be considered. It will be useful in articulating the criteria by which the team evaluates whether Maddie has the capacity to make her own decisions and what should happen if, as seems likely from the brief description, she lacks that capacity. The Mental Capacity Act (UK) also sets out principles on which care should be predicated and capacity considered. The common law or case law is also informative in offering further insights into the ways in which concepts such as best interests have been determined in specific situations. Nonetheless, the law only provides a framework within which interpretation and judgement will have to be exercised to determine what is the best way for to care for Maddie.

    Wisdom is part of the mitigation that renders interpretative work possible and perhaps even bearable. Yet, wisdom itself can seem amorphous: What does it look like? Where is it found? Can it be learned? Are there conditions which make wisdom more or less likely to flourish? How might we nurture wisdom in ourselves and in others? These are the questions that inform this chapter’s exploration of types of wisdom and its relationship to ethico-legal questions in clinical practice.

    Figure 22.2
      Introducing Maddie.

      Discernment and Wisdom

      When someone identifies and frames an ethical question or problem, they are engaged in a moral act (Bowman, 2015). To identify, name and frame a question or concern reflects context and preferences, conscious and unconscious. Sensitivity and attention to the ethico-legal dimensions of practice and awareness of the influences on the same requires wisdom even before one grapples with the substance of the ethical question. The insight to recognise how power, perspective and privilege may inform the identification and representation of ethical problems and to consider whose voices, priorities and experiences may be being overlooked, is a manifestation of wisdom. Beauchamp and Childress (2001) refer to the virtue of “discernment”. It is characterised by the capacity to recognise context and to demonstrate sensitivity in considering principles and norms in diverse situations. For Wisnewski (2015), the concept is moral perception which demands that practitioners develop a nuanced and sensitive approach that extends beyond codes of practice or ethical guidelines.

      To return to the experience of Maddie, the framing and discernment of the ethical dimensions of her care, matter. To assume that she lacks capacity because she has a learning disability would be a legal error but it would also be an error of discernment. The Mental Capacity Act is clear that capacity is a functional and dynamic concept rather than something determined by a specific diagnosis or impairment. Not to consider whether and how to capture Maddie’s preferences, perceptions and experiences – irrespective of capacity – is to disregard her humanity. It would be possible to proceed simply by following an agreed treatment pathway or evidence-based protocol for her type, grade and stage of cancer. Yet, without attention to Maddie and her responses to the investigations that she has undergone, along with consideration of the concerns raised by the carer who knows Maddie best and reflection on what is not yet being heard or perceived and how that may change, the response will be partial and ethically constrained. The wisdom to identify the absent as well as the present and to recognise the context as carefully as the foreground are crucial aspects of ethical practice.

      Ways of Seeing, Knowing and being

      An essential element of training as a clinician is the development of a unique way of seeing. It may be literal perception – the ability to identify, describe and categorise a sign or the capacity to begin to navigate the human body and its landmarks in early dissection and clinical skills sessions. It will also be a metaphorical way of seeing which reflects a disposition that is dispassionate, clinical, boundaried and carefully neutral. To see or even to consider beauty (or its opposite) is not the focus, literally, of the medical way of seeing. It is observation rather than imagination that is emphasised. Yet, there are other ways of seeing that will infuse an encounter with a patient and/or carers. Their perceptions will be about noticing change in self and embodiment that may be redolent with fear, regret, sadness or despair.

      For a surgeon, a scar may be reviewed for neatness, pressure or infection. For a patient, the scar may represent a fracturing of self, an affront to identity, a loss for which to grieve and a marker of determination or resolve. It may be something they cannot bear to behold and yet also be something of which they are constantly aware. For a physician, a sign may be interrogated for clinical meaning as a marker of new or progressive disease or a manifestation of a biological mechanism that requires specific investigations and management. For a patient, the sign may represent the loss of hope, fear for the future and anxiety about work and security. The facility to recognise these different ways of seeing, their meaning and the implications relies on openness, curiosity, humility and, above all, wisdom.

      Discernment and wisdom depend on appreciating that there are multiple ways of knowing and that those collide in medicine and healthcare. In a single consultation or encounter, the objective and the subjective, the rational and the emotional, the inductive and the deductive, the specific and the general, theory and practice, the individual and the population, the quantitative and the qualitative, the physical and the ephemeral, the certain and the ambiguous, the present and the absent, will jostle for attention, priority and recognition (Bowman & Bowman, 2018). Knowledge, in all its permutations, is rarely discrete, complete and neatly presented. Rather it is partial, complex and contradictory. To act wisely and ethically is to attend to ways of knowing and understanding (Kumagai, 2014). It is to recognise and even to relish the multiplicity of ways in which knowledge exists and meaning is sought in clinical work. It is to engage with, rather than deny, the ambiguity, the variance, the challenge, the fallibility, the interpretation and the messiness that imbue healthcare practice. It is to acknowledge that knowledge of care, including self-care, may be distinct from the forms of knowledge that dominate in biomedicine, yielding new ways to think about ethical practice (Chambon & Irving, 2003).

      Wisdom demands more than merely just recognising epistemological difference or categorising ways of knowing. It is suggested that a manifestation of wisdom is to understand and to acknowledge that some ways of knowing are commonly privileged over others. This privileging of knowledge is fundamental to the concept of epistemic injustice in healthcare (Carel & Kidd, 2014) where systemic power imbalances and engrained preferences for expression risk marginalising the vulnerable. To recognise the existence and prevalence of epistemic injustice is to act ethically. To take steps to mitigate against epistemic injustice in practice is to act with wisdom.

      Maddie’s voice is, literally, silent because she is non-verbal. Yet, there are many ways in which she may communicate, and to seek out her perspective and those of the people who know her best is to mitigate the risk of epistemic injustice and act wisely. Wisdom will appreciate both the general and the specific and how each informs the care of Maddie. A wise practitioner will recognise the differential and often poor experiences of healthcare for, and by, people with learning disabilities. He or she will reflect on the concepts of discrimination, best interests and quality of life whilst understanding that to do so without the perspective of Maddie and her carers would be constraining and unacceptable. It is a conscious approach that is focused on ethical reasoning and the goals of care (Kaldjian 2010). Each consultation and interaction with Maddie will seek meaning that is contextual, specific and derived from multiple sources. A wise practitioner will attend to the scientific and clinical evidence-base, a patient’s and/or carer’s experience, individual preferences and perceptions and consideration of the past, present and future (Widdershoven et al., 2017).

      Clinical work is, by definition, a practical endeavour. However skilled one may be at ethical discernment and analysis, decisions must be made and plans have to be negotiated. Enactment that is underpinned by wisdom is likely to have greater impact and/or effectiveness. Revisiting the case of Maddie, it would be possible to spend a lot of time discussing and debating the different ethical questions and discerning the potential for epistemic injustice. That may be time well-spent and if the process were inclusive and engaged diverse perspectives that were open to interrogation and challenge, the outcome would likely be rich learning. Yet, choices and care must follow. It may be necessary to foster wise discussion and reflection, but it is not sufficient. Enactment is unavoidable and it is in enactment that practical wisdom finds expression. Phrónêsis guides action where knowledge, or as this chapter argues, ways of knowing, depend on appreciating context or circumstances (Chaivaroli & Trumble, 2018).

      That is not to say that action is required. Indeed, one of the more memorable interactions with a mentor that this author experienced was when she was advised “don’t just do something, stand there”. Taking time, creating space and deciding that the best choice is not to intervene may well be wise, particularly in complex situations such as Maddie’s. Of course, in some circumstances, swift action is required and can be life-saving. Wisdom encompasses the ability to discern when and how temporality informs care. An emergency doctor who reflects at length rather than responding to the haemorrhaging patient may be negligent rather than wise. Yet, if that haemorrhaging patient is a 17-year-old Jehovah’s Witness, whose wishes are unknown and who is accompanied by her mother urging the doctor not to give blood products, wisdom is likely to mean that unreflective adherence to the protocol for the treatment of haemorrhage may not be a wise response. Of course, the devil is in the phrase “may not be” and it is that ambiguity which renders wisdom both so valuable and so elusive in an ethico-legal context.

      Yet, if one conceptualises wisdom as attention to ways of knowing and ways of being, there will be multiple possible approaches and conclusions to the same clinical scenario or facts. That is unavoidable. However, by considering different perspectives, context and variables, types of knowledge, the potential for epistemic injustice and what it means to be respectful, to attend to dignity and to show humility in any given situation, wise enactment is more likely to ensue.

      The facility to recognise that whilst wisdom is always valuable, it may be more needed in situations of uncertainty both to guide decision making but also to liberate from the futile quest for definitive “answers”. Where practice becomes difficult, as it has potentially in Maddie’s case, wisdom allows for a conscious response that notices the difficulty but is not overwhelmed by it. Wisdom can accommodate and complement the limits and constraints of contemporary medicine, including those of evidence and bioscience (De Freitas et al., 2012). Wisdom allows the practitioner to continue to be in consultations where, inevitably, facts, emotion, knowledge, experience and judgement swirl. Wisdom-as-practice develops confidence, judgement and the ability to balance the competing demands on an individual practitioner (Banks, 2013), although the inherent wisdom of the novice practitioner should not be underestimated (Chandler, 2012). Wisdom acknowledges that it is possible for anyone to be wise and that no one will be wise all the time (Grossmann, 2017). It is a fluid, responsive and engaged way of being that endures throughout a career. It is not predicated on credentials, role or hierarchy; it is based on a virtuous approach to clinical interactions that prioritises respect, integrity, fairness, kindness, inclusivity and dignity.

      Analysis and Wisdom

      When learning about ethico-legal practice, students may be introduced to many different theories and analytic models. There is no shortage of options for those who seek structure and consistency in their approach to ethico-legal analysis. Different people will favour some models over others and the literature is full of papers advocating particular theoretical approaches or tools. Whatever an individual’s preference or disposition, analysis informed by wisdom is likely to be more effective.

      Wisdom is what unlocks analytic choices. It recognises that each situation is unique and may not be fully captured by universal laws or principles, however well established. Without attending to that specificity, without attention to the same, moral analysis will be partial and inadequate. Wisdom acknowledges that analytic models are useful, but inevitably, limited. Yet, it is wisdom that will enhance and enrich one’s analytic response to an ethico-legal question, from its discernment in the first instance to arriving at a reasoned response. Wisdom enables a practitioner to select the right analytic tool or approach for different ethico-legal questions. Wisdom recognises that there is a temporal element to ethico-legal practice and that the point at which analysis occurs will inform the ways in which it is possible. Wisdom will ensure that, rather than being defensive or afraid of disagreement, the practitioner will seek out and engage with those who have different or contradictory opinions and views. Analysis that is grounded in wisdom recognises that it may not always be possible to reach consensus but recognises that there is value in dialogue, sharing norms and exploring values and tensions (Widdershoven, Abma, & Molewijk, 2009; Zucker, 2006). Wisdom recognises the value of testing a response with others. Wisdom allows individuals to recognise emotion and intuition in analysis (van Thiel & van Delden, 2009) without necessarily privileging either response. A wise approach to ethico-legal analysis acknowledges that a perfect, definitive answer may be illusory.

      What might such an approach mean in Maddie’s case? It would be possible, of course, simply to draw on a preferred theoretical approach or model and engage in rigorous analysis. Wisdom, however, will elevate that analysis. It does so by recognising that choices are made in a context of uncertainty, by engaging with those who have different perspectives on Maddie’s situation, by considering and testing the ways in which contrasting conclusions may be reached on identical facts, by attending to the interpretative nature of the task and by acknowledging the discomforting and maybe even painful emotions (Leget, 2004) and the strength of intuitions whilst seeking a balance (Widdershoven et al., 2017). A wise analytic response is an iterative process whereby those who seek meaning recognise that it may need to be revisited and are sufficiently flexible, humble and open to adapt to new or changing circumstances. Above all, the content and outcomes of any analysis will be accountable and explicable to Maddie, her carers, the multidisciplinary team and those who have a stake in the case.

      Integration and Reflection

      Wisdom in response to ethico-legal questions or problems is essentially interpretative and integrative. It depends on the recognition of, and response to, multiple ways of knowing and understanding, including facts, evidence, skills, experience, perceptions, emotions and intuition. The enactment of wisdom draws on common ways of being, whereby virtues are its antecedents and a commitment to kindness, integrity, dignity, inclusivity and fairness are prioritised. It is not enough merely to be able to recognise and cite each of these elements in isolation or list form. To act and to continue to act with wisdom requires the integration of different ways of knowing and being. It is moving beyond articulation of discrete elements to a complete and holistic response which may prioritise some aspects of a case over others, but is always aware of the whole as well as the constituent parts.

      The relationship between wisdom and learning is key. There are two senses in which the relationship matters. First, learning may be part of a specific response to a situation: for example, discovering previously unknown information, reflecting on the doctor-patient relationship, better understanding the limits of specialist services, identifying systemic vulnerabilities or developing insight into personal factors affecting performance. Secondly, a disposition to learning, in general, may be a feature of a wise practitioner. Learning may be thought to have moral virtue. It can make difficult and regrettable events, incidents or experiences, purposeful. Learning may allow meaning to emerge from the chaotic emotions a person may feel after encountering a difficult or testing case. Learning can inform the future and make sense of the past. Although, it may be that some individuals are better placed to learn effectively and to facilitate the evolution of wisdom from experience. Glück and Bluck (2013) suggest that individuals must have four traits, namely: mastery, openness, reflectiveness and emotional regulation/empathy. It is these characteristics, they argue, that enable an individual to integrate experience or challenges into his or her life span and allow the emergence of wisdom.

      It is possible to idealise “learning” in ways that are understandable, but may suggest denial rather than wisdom, particularly when things have gone wrong or errors have occurred. If one accepts the inherent uncertainty and inevitable risks of healthcare, emphatic claims that future mistakes or harm can be definitively prevented may suggest an urgent desire to believe in the redemptive power of “learning”. It isn’t surprising. The notion that future errors can be avoided has seduced policy makers, academics, professional organisations and patients. How much more attractive the idea must be to a doctor who feels bruised and is struggling to live with the consequences of his or her mistake or misjudgement. The wise response therefore may be to take a cool, realistic appraisal of learning. If one can accept medicine as an uncertain discipline practised by fallible human beings, how comforting to believe that those same human beings “learn” so effectively from missteps that they are eliminated in future. No wonder it is sometimes idealised and unrealistically embraced. Learning then, can be a limited panacea that both promises and disregards too much in well-intentioned efforts to contain the discomforting realities of clinical work. The trick is to develop a wise approach to learning that values its place in becoming and being a wise practitioner whilst not idealising it to the extent that it obfuscates what it is to be human, fallible and constantly changing.

      Wisdom and its development are central to clinical education and training (Edmonson & Pearce, 2007). It has been argued that attention to wisdom in clinical education improves care (Marcum, 2013). Yet, its presence in curricula and training varies, with the term “judgement” more commonly used than wisdom (Kaldjian, 2010; Kotzee, Ignatowicz, & Thomas, 2017). Sometimes, wisdom is carefully and deliberately included with opportunities for learners to reflect on their experiences, discuss concepts and develop strategies for the workplace that are supportive and effective. Unfortunately, sometimes, wisdom is developed in spite of, rather than because of, the learning that trainees experience. Silence and perceived conflict about the challenging, contextual and uncertain nature of clinical practice (Zucker, 2006), coupled with negative interactions with what might better be described as cautionary tales rather than role or behaviour models are damaging, but they can throw into sharp relief the need for wisdom to be embedded into medical education and clinical training.

      It can be difficult to find space in the crowded curriculum or busy clinical services. It may even be that the competency-based model of medical education and training is at odds with the development of wisdom (Kumagai, 2014). To foster wisdom is a more demanding task than scheduling “medical ethics” sessions. Indeed, Cowley (2012) suggests that increasing knowledge of moral philosophy may impede rather than facilitate wisdom. The opportunity and time to reflect, both in writing and verbally, with the support of skilled facilitators and mentors, is crucial to creating the circumstances in which wisdom and the traits on which it depends can flourish (de Cossart, Fish, & Hillman, 2012).

      In Maddie’s case, whatever the team or an individual may decide to do (and there are likely to be multiple decision points and choices to be considered), wisdom demands that there is space to reflect on, discuss, assimilate and evaluate diverse perspectives, experiences and ideas. The scientific and clinical (which in the scenario description have been left deliberately open) will be interrogated alongside the philosophical, social and psychological. Maddie’s interests will be contextualised and attention afforded both to that which is said and unsaid by those who know and love her. Even if, and when, matters appear “resolved”, wisdom will prompt ongoing reflection on what has happened and what might have been done differently. Facts and emotions will be equally explored with a sense of shared purpose: to ensure that the humanity of both Maddie and those who cared for her remains respected and endures, long after the final words have been entered into the medical record. When a new patient arrives, that approach will enable the team to meet the future because of what they did and how they did it, in the past. For wise practice begets wisdom and individual patients and doctors transform the collective clinical endeavour.

      Conclusion

      Wisdom is central to clinical practice. It is especially valuable in discerning and engaging with the ethico-legal dimensions of healthcare work with its inherent uncertainty, ambiguity and significance. Wisdom may assist both with the specific response to a particular question or problem, whilst simultaneously indicating a way of interacting with others in relation to ethico-legal questions that applies irrespective of the content of a case, story or scenario. Wisdom elucidates and facilitates the interpretative and complex nature of ethico-legal questions and problems. It is a deep and ongoing pursuit that attends to the individual’s ways of seeing, knowing and being. In so doing, it acknowledges both the privilege and burden of medicine. Compassion fatigue, burnout and ethical erosion are constant threats for even the most committed of clinicians; wisdom is sustenance. It protects both doctors and patients against the impact of under-resourced and pressurised systems because it is inextricably linked to the essential humanity of healthcare. Attention to, and support for, wisdom, enables that humanity to flourish irrespective of context. Wisdom is essential and its impact offers the greatest gift to patient and professional alike.

      Note
      1

      Montgomery v Lanarkshire Health Board [2015] SC 11.

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      Deborah Bowman PhD (ORCID: https://orcid.org/0000-0002-1020-2058)

      St George’s, University of London, United Kingdom