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A theoretical platform for a much‐needed change in the provision of healthcare based on restoring the autonomy of doctor–patient relationships
The resort to pretence in both the process of common law reasoning and the language used by other institutions, generally referred to as legal fiction and institutional fiction, respectively (or simply fiction), is a paradoxical phenomenon. On the one hand, it seems to be incompatible with systems that claim to derive their moral legitimacy from the uncompromising quest for hard evidence, fact and truth. On the other, it has a long tradition going back as far as the time of Roman law.1 It is very common in, and arguably central to, the modern social institutions. It is frequently manifest even to the lay observer.
Even more perplexing is the fact that this phenomenon has rarely invoked the intellectual interest it begs. Indeed, historical accounts of the common law often discuss it and it does have an entry in most legal dictionaries. Yet, the discourse that both these sources display typically tends to avoid problematisation. Moreover, whereas critical articles and scattered comments on specific instances are fairly common, systematic accounts are scarce. Notable among the latter is a pioneering moral critique by Bentham, a neo‐Kantian theory by Vaihinger, a programmatic attempt by Fuller and a relatively recent treatise by Eben Moglen.2,3,4,5 In contrast, critiques of ideology qua false consciousness are, of course, abundant; however, these rarely focus on fictions as such. A recent book, though, regards them as part of a broader culture of deception.6
In biomedical ethics, however, this paradox has been even more striking. Although legal and institutional fictions have become pivotal to this domain, as this paper will argue, they have virtually been ignored as such. The author has found only one instance where critiques of a central bioethical doctrine (consent) on grounds of being a fiction had been actively dismissed as logically unsound.7
This paper is an attempt to break this silence. However, its three aims are primarily programmatic. The first is to draw attention to the fact that legal and institutional fictions have indeed pervaded biomedical ethics. The second aim is to suggest a historical explanation of these strange artefacts in an attempt to demystify them. The explanation will be based on the analysis of how both their hegemonic function as well as the relationships of power which exist among their social beneficiaries and victims legitimise and reaffirm each other. This function, however, will turn out to be ideological: although the fictions seem to equally promote the interests of all stakeholders, they consistently promote interests of patients and doctors largely insofar as they are compatible with, and subject to, the interests of the vectors which currently control the agenda of medicine and the production of medical knowledge. Such investigation, however, would be incomplete if it failed to also account for the approach taken by bioethics vis a vis these fictions. Indeed, the third aim of this paper is to encourage bioethicists to undertake such an inquiry.
Embarrassing as the conclusions of this venture might turn out to be, they may offer valuable insights into the social role and history of bioethics and biomedical ethics. More important, though, they may provide a theoretical platform for a much‐needed change in the provision of healthcare based on restoring the autonomy of doctor–patient relationships.
With minor differences in formulations, most modern law dictionaries define legal fiction as a proposition about the substance or procedure of the legal system purporting to be a principle or rule material to the determination of cases, which rests in whole, or in part, on a factual premise taken to be true by the courts of law, irrespective of whether it is true or false, and even though it might knowingly be false (see “fiction” in The concise dictionary of law and Merriam‐Webster's dictionary of law).8,9 The same definition could apply to institutional fiction with the necessary changes having been made.
Moglen distinguishes among fictions based on their subject matter and technique. The subject matter may be the parties' status or prior transactions in the case before the court; the existence of relationship of third parties, places or things not before the court; the tribunal or the history of the law itself.
The technique may be that of assertion: the truth of the supposition is announced and adopted without scrutiny. It may also be that of deeming: X is deemed to be Y (implying that X is known not to be Y). The most frequent technique, though, is that of presumption: the subject of the fiction seems to be made the object of a formal evidentiary rule; however, the latter either strongly discourages or precludes denial of the subject's truth. Thus, fictitious presumptions may be said to be either rebuttable or irrebuttable. Indeed, rebuttable presumptions as such are not necessarily fictitious, unless the grounds for rebutting them are artificially narrow. Irrebuttable presumptions are fictitious assertions in a softened guise.5
The author has recorded over 40 instances of fictions, some no longer in use. The following list presents a selection of widely recognised instances in no particular order and without going into debate about their role and history.
It is commonly maintained that fictions are used for convenience and consistency in order to overcome the rigidity of the law. Fictions are also said to be distinguished from both erroneous claims as well as lies, in that they are always created by and for agents who are fully conscious of their nature and role. This, however, is rarely so, as the case of the bioethical fictions will clearly demonstrate. Many fictions go unnoticed. Moreover, although a social explanation of their role does not depend on evidence of intentions to deceive, it does not preclude the presence of such intentions, at least occasionally.
This section presents a discussion of several instances, which the author regards as fictions in biomedical ethics. It should be emphasised that this account claims to be neither non‐contentious nor complete. It should rather be seen as an invitation both to debate these instances and to continue the search for additional ones. One should also note that a particular instance may not be used by all legal or institutional systems and that a system which does use it may not do so consistently.
To say that consent is a fiction is another way of saying that its validators (tests and standards) have high rates of false‐positive results. In practice, this means that full responsibility is imposed on patients who are not fully responsibile for the choices they make. At the same time, the fiction exempts society, the state, healthcare institutions and the medical–industrial complex from responsibility for the patient's choice. In this respect, the fictions of consent, autonomy and choice exhibit stark resemblance to the caveat emptor principle.
True, these fictions combat medical paternalism quite effectively. Ironically, though, both the decline of the latter as well as its substitution by a restricted notion of patient autonomy have been necessary preconditions for exposing patients to some cynical forms of neo‐paternalism, now practiced mainly by market‐driven forces. All in all, the ideological function of these fictions suggests that they have pervaded biomedical ethics primarily, albeit not exlusively, against the the background of the currently intensifying global economic competition, the decline of the Welfare State and the concomitant commercialisation of public healthcare.
These fictions may play a particularly disturbing role. Behind the veil of both ethical language as well as genuine compassion for patients, they may conceal from doctors some other pressures, mainly economic, which may seem unacceptable to many. In doing so, the fictions may turn unsuspecting doctors into shortage managers on behalf of a cost‐containing system. In turn, the white gown of the latter further conceals such pressures from patients as well.22
These fictions do little than conceal and thus reaffirm the control of private market forces over the production of medical knowledge.
Ironically, the presumption that the sole purpose of disclosure in such contexts is that of creating transparency is by itself a fiction. In fact, transparency is a very powerful means of concealing and reaffirming bias. This is because it is often construed as sufficient precaution against such bias.
These fictions conceal a back‐door legitimation of commerce in organs. More important, though, they conceal the coercion that is implicit in all situations where selling one's organs becomes a real option.
Legal and institutional fictions are a common phenomenon in biomedical ethics. However, the bioethical discourse has generally given them a cold shoulder. This paper has tried to offer a consistent explanation in an attempt to demystify these fictions. It has depicted both as well as the apologetic silence with which they have been met, as ideological constructs, concealing, and thereby legitimising and reaffirming, relationships of power within which patients and doctors are rather the weaker parties. Embarrassing as such conclusions may be, they are too substantial to ignore, especially by those who have genuine interest in restoring the autonomy of doctor–patient relationships.
Competing interests: None.