making for children in The Netherlands
Bertijn van der Steenhoven 11777761
Bertijn2@hotmail.com
University of Amsterdam Faculty of Humanities
Argumentation, Rhetoric and Communication (Research) 17 June 2019
Supervisor: dr. A.F. Snoeck Henkemans Second reader: dr. B.J. Garssen
1 Introduction ... 1 2 End-of-life decision-making for severely ill children in The Netherlands ... 4
2.1 A definition and classification of end-of-life decisions 4
2.2 Discussions about end-of-life decisions 5
2.3 An argumentative characterisation of discussions about end-of-life decisions 8
2.4 Legal restrictions in making end-of-life decisions 10
2.4.1 Normal medical care: legal aspects of (non-)treatment decisions 10 2.4.2 Special medical care: active termination of life and the Groningen protocol 10
3 An argumentative characterisation of the argumentation stage in discussions about end-of-life decisions ... 12
3.1 Introduction 12
3.2 End-of-life decision-making as a form of medical micro-policymaking 13
3.3 Possible issues in medical micro-policymaking 14
3.4 The burden of proof 19
3.5 Argumentation as a means to anticipate possible doubts 23
4 Discussion and conclusion ... 26 References ... 28
1 Introduction
Over the past decades, medical care for children has significantly improved. In 2014, the Netherlands Youth Institute reported there is ‘a steady decline of mortality among children’ (translation BvdS). They state that the amount of children that died in the first year of their life has decreased from 3,939 in 1960 to 634 in 2014.1 In 2017 this number had even further dropped to 607. Likewise, mortality among young people (less than 20 years old) dropped from 1,926 in 1995 to 1,071 in 2017.2 This progress is largely due to socioeconomic circumstances and technological improvements. However, the increase of possibilities in medical technology also prompts the question if lives should be prolonged at all costs. Among doctors, there is general agreement that medical care should not be provided to extend needless suffering (de Vos-Broerse 2015: 33). Already back in 1997, the Royal Dutch Medical Association (KNMG) recommended to take into consideration that the exhaustive exploitation of all technological means for life prolongation might not be in the child’s best interest (Dillman et al. 1997: 4-5).
Not only from the point of view of the patient’s best interest, but also from a societal perspective, the question has been raised how limited medical resources should best be exploited. Fischberg et al. (2013: 596) list a number of worrying statistics: in the U.S. health care expenses are good for more than 17% of the gross domestic product, and each year $700 billion are spent on health care ‘that has not been shown to improve health outcomes’. Back to The Netherlands: asked what considerations would be important in deciding whether a treatment is ‘medically futile’ in neonatology, a Dutch neonatologist responded: ‘We must not use our high-technology equipment to achieve a situation like that [referring to a critically ill baby who suffered severely and needed ‘very intensive artificial ventilation’, BvdS]. If we think that we will create that kind of situation and we have a choice between using our technological tools and not doing so, I think we must be wise and refrain from doing so’ (Moratti 2010a: 10). The question of when treatment should be started, continued, withdrawn, or withheld is a delicate matter that requires the utmost careful weighing: when do the benefits of medical care outweigh its disadvantages, and from which point onwards is medical care fruitless, or “medically futile”? Another sensitive topic in this sphere is the active termination of life. At some point, a child’s suffering might be so severe that it can be questioned whether continuation
1 URL:
https://www.nji.nl/nl/Databank/Cijfers-over-Jeugd-en-Opvoeding/Cijfers-per-onderwerp-Overlijden-kind.
2 CBS Statline. URL:
of its life could be called “dignified”. To put it in medical terms: what is the patient’s present and expected “quality of life”? Considerations about life expectancy, quality of life and the specific benefits of different medical interventions will all play a role in what is called “end-of-life decision-making”, decisions that may hasten a patient’s death.
In this thesis, discussions about end-of-life decision-making are regarded as argumentative discussions. In the process of decision-making, argumentation plays a vital role. For instance, in The Netherlands, the process of end-of-life decision-making is strictly regulated by the law. In different situations, different criteria have to be met, and the question of whether criteria have been met can be a topic of discussion (Buijsen 20013, cf. Stoffelen 2013). Besides, in many cases, medical insights can provide only little clarity, leaving open multiple possible diagnoses or prognoses. Here again, discussions may arise over the status of a child’s illness, its life prospects, or the possible merits of medical interventions (see for instance Klein 20094). Lastly, different people hold different ethical views. As a consequence, there may be disagreement between different parties about the value of life, and the acceptability of suffering and different types of interventions (Leeuwenburgh-Pronk et al. 2015, cf. Rief 2009).
In sum, end-of-life decision-making is a delicate matter that requires the ability to critically assess multiple options in critical circumstances. Nowadays, it is widely assumed that in this process of decision-making not only doctors, but also the child’s parents should have a say. Of course, doctors will have more knowledge about the medical aspects, but the child’s parents are the first assigned party to judge and determine the value of different possible scenario’s (cf. Moratti 2010a: 290-291). In the decision-making process, there may be a tension between the doctor’s opinion on the usefulness of a particular intervention on the one hand and the parents’ preferences on the other hand. In such a case, the pros and cons of both positions have to be weighed in order to determine what is in the child’s best interest.
Thus far, little research has been done into the question of how a doctor can anticipate parents’ possible doubts or criticisms against a proposal for or rejection of a particular medical intervention by putting forward (extra) argumentation. Insights about the argumentative nature of discussing different treatment options can enhance medical communication. Previous research has shown that providing argumentative support for a treatment proposal can have positive effects on patients’ perception of a doctor’s ethos and on patients’ acceptance of the
3 This study is about an adult patient and thus it falls outside the scope of the present research. However, it is a
very enlightening article about the judicial aspects of end-of-life decision-making in general.
4 This study is about a case in the United States. There is only limited literature available about specific cases.
doctor’s standpoint (Labrie & Schulz 2015). When doctors are aware of the possible objections against their proposals, they may be able to more adequately address parents’ worries in advance. To put it simply: the doctor who knows what might be doubts and criticisms against his proposal can provide argumentation in order to “tackle” parents’ objections. Thus, the doctor’s first question will be: What might be parent’s possible objections against a doctor’s proposal? A second question will be which types of argumentation best meet each of the specific doubts, in other words: Which types of argumentation are appropriate means to counter each of the specific possible objections?
In consultation in general, and in end-of-life decision-making in particular, not only doctors, but also the patient (or: its parents) can propose a certain medical intervention. In fact, in the case of end-of-life decision-making some types of interventions, like euthanasia, can only be proposed by the parents. In those cases, the parties switch roles. In those cases the same questions apply: What might be possible objections against a parents’ proposal, and how can these possible objections be dealt with by adequate counter-argumentation?
The question I will address in this thesis is how a “heuristic device” can be developed that enables a systematic critical appraisal of a proposal in the context of end-of-life decision-making. In developing such a critical instrument, I will make use of insights from two different approaches to argumentation. First, the theory of the stock issues, a modern translation of Hermagoras of Temnos’ classical-rhetorical theory of the so-called “staseis”, provides a list of possible issues that may arise in the context of policy-making. In this thesis I will show that the underlying structure of discussions in the context of policy-making to a great extent compares to that of discussions in the context of end-of-life decision-making. I will translate the standard list of the stock issues into a list of possible objections that applies to the specific context of end-of-life decision-making. This enterprise serves as an answer to the first question.
Based on insights from pragma-dialectics I will then answer the question of which types of argumentation are an appropriate means to anticipate parents’ possible doubts or criticisms against a doctor’s proposal, and how possible criticisms can be translated into adequate argumentative support for the rejection of a proposal by the child’s parents. This second part of the analysis results in three so-called proto-typical argumentative patterns each of which can be further adapted to specific types of proposals or rejections.
The thesis will be structured as follows. Section 2 contains a discussion of the literature about end-of-life decision-making in The Netherlands. I will provide an argumentative characterisation of end-of-life discussions. To this end, I will first describe how end-of-life
making is embedded in the Dutch law, and what the parents’ role in the decision-making process is. By giving an argumentative characterisation, I will make clear how characteristics of the institutional context affect the argumentative discussion in terms of for instance burden of proof and appropriate argumentative means. In section 3, I will pay extra attention to the argumentative characterisation of the argumentation stage in discussions in the context of end-of-life decision-making. To this end, I will introduce the theory of the stock issues. It will be shown that the list of possible objections against a policy proposal can be translated into a list of possible objections against a treatment proposal in the context of end-of-life decision-making. By means of illustrative examples taken from the literature and from Dutch newspaper articles I will show how discussions may arise over each of the possible objections. Next, I will introduce the pragma-dialectical notion of argument schemes and argumentative patterns. Based on the analysis of the possible points of discussion I will formulate two basic argumentative patterns: one pattern that contains arguments in support of a treatment proposal on behalf of the doctor and one pattern that contains the possible counter-arguments against a treatment proposal on behalf of the child’s parents. Section 4 provides a discussion and a conclusion of the research as well as recommendations for future research.
2 End-of-life decision-making for severely ill children in The Netherlands
2.1 A definition and classification of end-of-life decisions
The term ‘end-of-life decisions’ covers a broad variety of decisions pertaining to the medical care that is provided in a patient’s final life stage, and which is aimed no longer at recovery, but at the minimisation of suffering (Vrakking et al. 2005). End-of-life decisions include all decisions that may hasten death, whether it be due to an unintended but possibly foreseen effect or to the explicit wish of the decision-maker (de Vos-Broerse 2015: 22). In between no intention and explicit intention, Provoost et al. (2004) state, there is a category which they call ‘co-intention’. This category includes decisions where shortening of life is a second intention, after the intention to alleviate pain and suffering. In The Netherlands, end-of-life decision-making is strictly regulated by the law and depending on the type of decision specific criteria have to be met.
In classifying end-of-life decisions, a distinction is often made between special medical care and normal medical care (cf. Provoost et al. 2004, Vrakking et al. 2005). The former refers to
active termination of life, either by a doctor (i.e. euthanasia5) or by the patient him/herself in the presence of a doctor (i.e. physician-assisted suicide). The latter includes a variety of treatment options to alleviate a patient’s pain and suffering with a possibly life-shortening effect. Normal medical care also includes withholding or withdrawal of further treatment (i.e. non-treatment).
End-of-life decision-making for deathly ill children is a delicate matter that requires the utmost careful weighing. Contrary to situations where standard procedures suffice, medical care in a child’s final life stage is a much more complicated and emotional issue, not only for the child’s parents, but also for the medical staff (cf. Oostewechel & Verhagen 2014). The interests are tremendous: on the one hand, the continuation or adoption of treatment after treatment may extend needless suffering, on the other hand, to discontinue treatment may be fatal and cut off the road to possible recovery. Active termination of life is another delicate matter where doctors and parents face a similar dilemma. In sum, in end-of-life decision-making doctors and parents make the most difficult choices in the toughest circumstances. Note that accurate information about the status of the child’s illness and life prospects may be lacking, and that different persons who are involved in the decision-making process may hold different views. In other words: in the context of end-of-life decision-making disagreements and discussions may easily arise, but can be difficult to resolve.
2.2 Discussions about end-of-life decisions
In end-of-life decision-making, discussions may arise between the various parties that are involved. At least the following four parties can be distinguished: (i) the patient (here: a deathly ill child)6, (ii) the child’s parents, (iii) the doctor, (iv) the doctor’s colleagues7. Between these
5 The term “euthanasia” refers to active termination of life on the explicit request of a patient. The more general
term “active termination of life” refers to life termination on the request of others (for instance a child’s parents) as well. This term is often used in the sphere of end-of-life decision-making for children, since children below the age of 12 are not allowed to request euthanasia (cf. Kiene 2012).
6 In 2017, a discussion between parents and their child arose when a 12-year old boy wanted to withhold treatment,
against the will of his father, who did want to continue treatment (de Visser 2017). See Hein & Hondius (2017) for a discussion of children’s capacity to make medical decisions. According to Hein & Hondius, the age at which children are capable of making a considerate decision can highly differ per child. On average, they found, children can make a well-considered decision at the age of 11,2.
7 In 2012, a discussion arose between doctors about the question of whether active termination of life should be
allowed for children diagnosed with spina bifida. By then, spina bifida was regarded as a grave disorder that caused unbearable suffering. Thus, it was considered sufficient ground for active termination of life. However, based on research into pain perception of children with spina fida, neurosurgeon Rob de Jong questioned whether spina fida should indeed count as sufficient ground for active termination of life. According to his research, children diagnosed with spina fida do not suffer unbearable pain. Yet, many of his colleagues held – and still hold – that spina fida causes too much pain and suffering (patients often have to undergo surgery) (Docter 2012).
parties discussions may arise. The possible differences of opinion between various actors who are involved in the process of end-of-life decision-making actors are schematically represented in Figure 1. In this thesis I focus on discussions between a doctor and a child’s parents. Discussions between other parties, for instance between a doctor and his peers, are not taken into account.
Nowadays, in medical decision-making, the so-called shared decision-making model is widely advocated as the ideal model (Stiggelbout et al. 2015, Tarrant et al. 2004: 461). Contrary to models where the power to decide solely resides with either the doctor (i.e. the paternalistic model) or the patient (i.e. the informed decision-making model), in shared decision-making, a doctor and a patient (here: the child’s parents) try to come to a joint decision about the treatment plan (Charles et al. 1997).8 Evidently, shared decision-making can only take place if there are multiple options available (i.e. if it is a case of a so-called preference-sensitive decision). In contrast with situations where no alternative treatment option exists, preference-sensitive cases are characterised by the fact that there are multiple treatment options that are medically equally acceptable (cf. Stiggelbout et al. 2015: 1173).
In The Netherlands parents always have a role in end-of-life decision-making for children (Vrakking et al. 2005: 806, Verhagen et al. 2009).9 According to the Medical Treatment Agreement Act (‘Wet op de geneeskundige behandelings-overeenkomst’, Art. 7:450), children below the age of 12 are regarded as ‘incapacitated’ (‘wilsonbekwaam’), that is: they are not
8 As a fourth model with a somewhat hybrid character, Charles et al. mention the so-called
professional-as-agent-model where a doctor makes the decision, after having elicited and taken into consideration the patient’s
preferences and wishes.
9 Provoost et al. (2006) carried out research into the role parents play in end-of-life decision-making for neonates.
They found that parents were not consulted in 22/136 cases. Reasons not to consult parents were the absence of a reasonable alternative (n=17), lack of time (n=1) or parents’ request to hasten death at some point (n=3). Note that for one case, no reason was given.
DOCTOR III COLLEAGUES
I
CHILD II PARENTS
Figure 1. Schematic overview of possible discussions between various parties that are involved in end-of-life decision-making.
I: Discussions between parents and a doctor (or a medical team); II: Discussions between parents and children III: Discussions within a medical team or with other experts. This thesis is about discussions between parents and a doctor (marked black).
allowed to make medical decisions by themselves.10 Therefore, they are represented by their parents (or guardians) who are by law assigned to take care of their children (Dorscheidt et al. 2011: 3). Children between the age of 12 and 16 are allowed to make their own decisions but they need their parents’ consent. A minor between the age of 16 and 18 is allowed to make his own decision, ‘without prejudice to the duty of his parents to meet the costs of care and upbringing’ (Art. 7:44711).
Research has shown that in the context of end-of-life decision-making for children, conflicts between the medical staff and parents occur regularly. De Vos et al. (2011: 1009) found that in 23 (20%) out of 116 cases a conflict arose between parents and the medical staff. Reasons for disagreement were that parents thought there were still treatment options available [n=10], that they believed their child would survive [n=7], that they had a more positive evaluation of their child’s expected quality of life [n=8], or that they had religiously motivated moral objections against the intended end-of-life decision [n=6]. Verhagen et al. (2009) carried out research into end-of-life decision-making in NICU’s (‘Neonatal Intensive Care Unit’). They found disagreements in 18 (12%) out of 147 cases. In 14 cases parents wanted to continue treatment, whereas the medical staff wanted to discontinue treatment. In 4 cases parents requested withdrawal of treatment, whereas the medical team wanted to continue treatment. All conflicts were resolved by postponing the decision.
In this thesis conflicts between doctors and parents of critically ill children about end-of-life decisions are analysed as argumentative discussions. According to the pragma-dialectical theory of argumentation, argumentative discussions can be analysed by comparing them to the ideal model of a critical discussion. The next paragraph provides an argumentative characterisation of discussions about end-of-life decisions between doctors and parents. Such an argumentative characterisation provides insight into the crucial features of a particular type of discussion, such as the division of roles, the discussants’ argumentative duties and the various types of argumentation that can be expected to be predominant in the discussion.
10 This does not mean children do not have a say in medical decision-making. According to the Convention on
Human Rights and Biomedicine (1997, Art. 6.2) ‘the opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity’ (see URL https://rm.coe.int/168007cf98).
2.3 An argumentative characterisation of discussions about end-of-life decisions
According to the extended pragma-dialectical theory, argumentation can best be analysed by taking into account the specific features of the institutional context. Communication takes place in so-called communicative activity types, more or less conventionalised and institutionalised communicative practices with their own specific goals (van Eemeren 2010: 129-162). According to Pilgram (2015: 20) medical consultation is an activity type where communication takes place in a conventionalised fashion. Normally, she states, a medical consultation consists of a complaint presentation, physical examination, diagnosis, prognosis and a treatment prescription and/or advice. I propose to analyse end-of-life discussions as a specific instance of the activity type of medical consultation. Activity types can be characterised argumentatively by describing the empirical counterparts of the discussion stages in the ideal model of a critical discussion, introduced by van Eemeren & Grootendorst (1984) (van Eemeren 2010: 146).12
The initial situation of discussions in medical consultations is a lack of agreement between a doctor and a patient (here: the child’s parents). End-of-life decisions can be initiated by both the doctor and the child’s parents. However, most discussions are initiated by the doctor. De Vos et al. (2011: e1007) found that discussions about withholding or withdrawing treatment were initiated in 75% (87 of 116) of the cases by the medical team, in 4% (5 of 116) of the cases by the parents and in 21% (24 of 116) of the cases by the somewhat indefinite category ‘both’. Verhagen et al. (2009) found that 78% (117 of 150) of discussions in the NICU’s were initiated by the doctors. In another 20% (30 of 150) of the cases the medical team elicited the parents’ preferences. In 2% (3 of 150) of the cases, the parents themselves initiated the discussion. In the case of special medical care, euthanasia and physician-assisted suicide can only be committed at the explicit request of the patient (see for instance Regional Euthanasia Review Committee 2018: 18). Thus, these discussions will be initiated by the child’s parents.
In the second stage of the discussion, the discussants divide the roles and determine the burden of proof and the common material and procedural starting points. Since the doctor prototypically initiates the discussion by proposing to carry out a certain medical intervention (i.e. [dis]continuation of medical treatment), the doctor is the protagonist, whereas the parents are the antagonist. When parents come up with doubts, the discussion has a single non-mixed character, when they oppose the doctor’s proposal the discussion becomes single mixed. In the former case, only the doctor has the burden of proof, in the latter case, both parties have to come
12 The argumentation stages are as follows (empirical counterparts between brackets): confrontation stage (initial
situation), opening stage (starting points), argumentation stage (argumentative means) and concluding stage (possible outcomes) (van Eemeren et al. 2014: 529-531).
up with argumentation. In discussions where the parents come up with a proposal (for instance if they request euthanasia), the parents are the protagonist and have the burden of proof. In such cases, the doctor is the antagonist of the parents’ standpoint and will at the same time be the protagonist of an alternative standpoint (e.g. The present treatment should be discontinued). Those discussions have a multiple mixed character. Normally, the discussion takes place in the doctor’s office and the doctor functions as discussion leader.
As to the argumentative means, dependent on the type of standpoint, some types of argumentation can be a more adequate support than others. This will be discussed in the following section. In general, doctors can rely on their authority as a medical specialist when providing information about the diagnosis and prognosis. On the other hand, parents are considered to best know the child’s preferences. In the literature this difference in knowledge level is recognised as an ‘epistemic’ asymmetry (Snoeck Henkemans & Wagemans 2019: 2, Raymond 2014: 39).
The possible outcomes are restricted by the rights of both doctors and parents. In case no agreement can be reached, the final say resides in principle with the parents (Moratti 2010a: 291). A doctor is not allowed to carry out a treatment without the parents’ consent (von Martels-Mudde 2007: 9-10). On the other hand, the doctor has the power to withhold medically futile treatment (Moratti 2009: 369) and can never be forced to carry out a medical intervention against his will. Lastly, as part of his profession, the responsibility for the medical intervention resides with the physician (Dorscheidt et al. 2011: 2, Verhagen et al. 2009: 116).
Both de Vos et al. (2011) and Verhagen et al. (2009) found that ultimately consensus was reached in all the cases their research covered. According to Oostewechel & Verhagen (2014: 223) reaching consensus can be a matter of time, as parents may need a while to accept the grave situation. However, there have also been cases where no agreement could be reached. For instance, in 2013 De Volkskrant reported that the parents of baby Eline went to court, accusing the Leiden University Medical Centre of carelessness. According to the parents, the death of their baby was due to slow action by the medical team (Stoffelen 2013). In the scientific literature, cases outside The Netherlands are predominant. Klein (2009) describes two American cases where parents went to court. Recently, the media have intensively covered the dramatic stories of the death of young children like one-year old boys Charlie Gard (died in 2017) and Alfie Evans (died in 2018) in the United Kingdom (Wilkinson & Savulescu 2018a). In both cases, doctors considered further treatment futile, whereas parents wanted to continue treatment. Only after a series of bitter court battles, Charlie’s parents and his medical team succeeded in coming to a joint decision (i.e. withdrawal of further treatment; Wilkinson &
Savulescu 2018b). In the latter case Alfie’s parents’ request to have their son transferred from Alder Hey Hospital in Liverpool to the Bambino Gesù Hospital in Rome was declined by the national and the European Court in favour of the hospital, claiming that further treatment would not have been in the child’s ‘best interest’ (Dyer 2018).
End-of-life decision-making is strictly regulated by Dutch law. Especially when it comes to special medical care, the legal situation is rather complicated. Thus, in argumentative discussions about end-of-life decision-making, discussants have to observe restrictions following from the law. These restrictions will be discussed in the following paragraph.
2.4 Legal restrictions in making end-of-life decisions
In the Dutch law a distinction is made between normal medical care and special medical care. What are the legal restrictions in deciding to start, continue, withhold or withdraw a particular treatment, and what are the legal restrictions for active termination of life for children?
2.4.1 Normal medical care: legal aspects of (non-)treatment decisions
According to the law, a doctor is obliged to be a ‘prudent care provider’ (WGBO Art 7:453), that is: a doctor should in principle strive for preservation and prolongation of life. However, the law provides room for doctors to refuse medical treatment. In a 1992 report the Dutch Association of Pediatrics made a distinction between medically ineffective (‘kansloos’) interventions and senseless (‘zinloos’) interventions, where the result would be unsatisfying (NVK 1992). A doctor has the power to withhold further treatment based on medical grounds (Moratti 2009: 369), the power to decide if a life is worth living resides with the patient (Verweij & Kortman 1999: 146-147). Hence, a patient always has the right to refuse treatment, based on the right to inviolability (Art. 11 of the Dutch constitution). In case of neonates, considerations about the parents’ ‘ability to take care’ play an important role (Moratti 2010b). However, Moratti adds, clear-cut criteria are lacking. In case parents may endanger their child’s life by refusing treatment, a doctor can involve the Child Care and Protection Board (‘Kinderbescherming’) (NPCF 2009: 5).
2.4.2 Special medical care: active termination of life and the Groningen protocol
In The Netherlands, active termination of a patient’s life is regarded as special medical care. That means euthanasia and physician-assisted suicide are the “last resort”, they are only allowed when regular medical care can offer no reasonable alternatives (Buiting et al. 2008: 1). Under the Dutch law it is forbidden to terminate someone’s life at their request (i.e. euthanasia; art.
293 of the Penal Code) or to provide someone with means to terminate their life (i.e. physician-assisted suicide; art. 294 of the Penal Code), unless specific criteria are met (i.e. the so-called requirements of due care [‘zorgvuldigheidseisen’], laid down in section 2 of the Termination of Life on Request and Assisted Suicide (Review Procedures) Act [‘Wet Toetsing Levensbeëindiging op Verzoek en Hulp bij Zelfdoding’], art. 293.2 & 294.2). Among these requirements are for instance the following: ‘The physician has to be convinced that the patient's request was voluntary, well-considered and lasting’ and ‘that the patient was facing unremitting and unbearable suffering’ [transl. BvdS].
Age plays an important role in termination of life through euthanasia or physician-assisted suicide. The regulation follows the three age groups as distinguished in the Medical Treatment Agreement Act (‘Wet op de geneeskundige behandelings-overeenkomst’) of 1995. The first age group are children from 0-12 years old, who are regarded as ‘incapacitated’. Therefore they are proxied by their parents (or guards). The law does not allow active termination of life for this age group. The second group are children between 12 and 16. Patients in this age group have the right to euthanasia or physician assisted suicide, but they need their parents’ consent (section 2(4) of the Act). The third group is formed by children of 16 and 17 years old who do not need their parents’ consent (von Martels-Mudde 2007: 4-6). However, the Act prescribes that the patient’s parents ‘must be consulted in the decision-making process’ (section 2 (3) of the Act) (Regional Euthanasia Review Committees 2018: 42).
A special position is reserved for neonates (i.e. children aged under 1 year). In 2004, a commission led by physician Eduard Verhagen developed the so-called Groningen Protocol. The protocol allows physicians to commit euthanasia under very strict conditions for infants ‘with a hopeless prognosis who experience what parents and medical experts deem to be unbearable suffering’ (Verhagen & Sauer 2015). However, since committing euthanasia for children under the age of 12 is illegal, following the law, the doctor should be prosecuted. In 2004, the Public Prosecutor promised to refrain from prosecution for children under the age of 1. The protocol helps doctors to provide all the information to the Public Prosecutor in such a way that in practice, they will not be prosecuted. Thus far, attempts to include children between 1 and 12 years old in the Groningen Protocol have not been successful.
The question remains to what extent discussions about end-of-life decision-making are affected by the legal situation. In an interview with De Volkskrant, Belgian doctors and nurses said that ‘discussions with parents changed’ after an alteration of the law in 2014. From then on, parents more often regarded a doctor’s proposal to increase morphine or to administer dormicum (i.e.
palliative sedation) as a disguised proposal to commit euthanasia (Adèr & Don 2015). This suggests that the legal constraints on end-of-life decision-making do not only affect the possibility to favour a particular medical intervention, but also that the room the law leaves for more far going medical interventions may make parents more critical.
End-of-life decision-making for children is a complex matter in many respects. It is strictly regulated by the Dutch law. In the decision-making process, parents and doctors have different roles and competences. On a regular basis conflicts arise, due to diverging visions. In most cases, the difference of opinion can be resolved, but in other cases, the discussion derails and deep disagreements come to the surface. In this thesis, discussions about end-of-life decision-making are analysed as argumentative discussions. The next section provides a theoretically motivated analysis of the argumentation stage of discussions about end-of-life decisions. It demonstrates how doctors can give shape to their argumentative duties and how they can anticipate possible doubts or criticisms of the child’s parents.
3 An argumentative characterisation of the argumentation stage in
discussions about end-of-life decisions
3.1 Introduction
This section aims to make clear how a doctor can give shape to his duties in the argumentation stage. In this stage of the discussion, the discussants come up with the arguments in favour of their position and their criticisms and doubts regarding the standpoint and argumentation of the opposite party. The protagonist has the burden of proof and has to provide argumentation in support of the main standpoint(s). If the antagonist does not immediately accept the protagonist’s argumentation, the protagonist can provide a different argument (multiple argumentation), extend the existing argument (coordinative argumentation) or provide an argument in favour of the existing argument (subordinative argumentation).
In order to provide an argumentative characterisation of the argumentation stage, I will first show that discussions about medical decision-making can to a great extent be compared to discussions about policy-making (3.2) and that the issues that may arise in the latter context can be translated to the context of end-of-life decision-making for deathly ill children (3.3). Based on the list of possible issues, I will determine what is the doctor’s burden of proof if he proposes a particular medical intervention (i.e. in his role as protagonist). I will also show based on which considerations a doctor can refuse a particular medical intervention. For a successful attack of
a parent’s proposal, a doctor has to raise doubts over at least one of the possible issues (i.e. in his role as antagonist) or he can prove that at least one of the requirements of an adequate proposal are not met (i.e. in his role as protagonist of the opposite standpoint) (3.4). Finally, I will turn to the question of which forms of argumentation are adequate means for doctors to live up to their argumentative duties (3.5).
3.2 End-of-life decision-making as a form of medical micro-policymaking
In determining which argumentation best supports a standpoint, it is first necessary to determine which type of standpoint is central to a discussion. In pragma-dialectics three types of standpoints are distinguished. Descriptive standpoints pertain to factual matters (e.g. “Patient A suffers from disease B”). Evaluative standpoints express a subjective evaluation of a thing, person or state of affairs (e.g. “The suffering of patient A is unbearable”). Prescriptive standpoints have an appealing character: they call for a particular action (e.g. “Patient A should be transferred to hospital B”). In discussions about end-of-life decision-making, all the aforementioned types of standpoints can play a role. However, ultimately, discussions will arise in light of the decision that has to be taken. The main standpoint in discussions about end-of-life decision-making can therefore be reconstructed as a prescriptive standpoint of the following type: Medical intervention X should be carried out.
Disagreement will arise when a doctor and the child’s parents hold different views on the child’s diagnosis, prognosis, or the (dis)advantages of a particular treatment. Thus, descriptive and evaluative standpoints will eventually play a role in subdiscussions underlying the main discussion about the treatment proposal. For instance, if parents doubt a doctor’s diagnosis, they will most likely also disagree on the proposed medical intervention, since the intervention follows from the patient’s medical status. The same goes for evaluative standpoints: if the doctor and the parents hold different views on the tolerability of suffering, they may well, in case of suffering, prefer a different course of action.
From an argumentative point of view, discussions in the sphere of end-of-life decision-making are to a great extent comparable to discussions in the sphere of policy-decision-making. In both contexts, the main standpoint is of a prescriptive nature, since their central question is which course of action should be followed. In medical decision-making as in policy-making, multiple options are available, each with their own costs and (side) effects. Based on the possible scenario’s, the parties have to determine which plan is the most adequate.
In terms of communication, the most striking difference between political and medical communication will be that the former has an inherently public character, whereas the latter is
by nature exclusive. In other words, whereas policy-makers will rather be out to gain the support of the public instead of their direct opponent, a doctor and a child’s parents will truly seek to convince each other in order to come to a joint decision. However, in terms of adequate argumentation both contexts have comparable requirements: in both cases the parties need to proof that their plan best meets the problems in the status quo.
3.3 Possible issues in medical micro-policymaking
Based on the above analysis, medical decision-making can be deemed a form of medical micro-policymaking. “Policymaking” because the involved parties have to decide out of a variety of plans which course of action shall be followed. “Micro” because of the rather personal character of the communication situation. Theoretically speaking, this means that insights from argumentation in policy debates might be translated to the context of medical decision-making. Here, I will provide a translation of insights from the theory of the stock issues into the context of end-of-life decision-making for deathly ill children.
The theory of the stock issues is a modern variant of the classical-rhetorical theory of staseis, or: status theory. According to status theory, the nature of the orator’s burden of proof was dependent on the rhetorical genre. In classical rhetoric, all types of persuasive speech were divided over three genres of rhetorical activity. In the renowned handbooks of rhetoricians such as Aristotle13, Quintilian and Cicero, most attention is paid to the genos dikanikon or genus iudicale (judicial genre). In the classical situation, a speaker had to prove for a jury of laymen that the accused should be judged guilty of a particular crime. The accused, in turn, had to prove his innocence. In the genos epideikton or genus demonstrativum (ceremonial genre), the orator’s task was to proof that some person deserved either praise or blame for a gathering of people, for instance at a funeral. Lastly, in the genos symbouleutikon or genus deliberativum (political genre), the speaker’s task was to attack or defend a particular policy proposal for an assembly of people, in ancient Greece, or, later, in the senate, in the Roman empire.
In classical rhetoric in general, and in status theory in particular, most attention was paid to the judicial genre (Braet 1987, Hohmann 1989, Kienpointner 1997). Recently, considerably more attention has been paid to the political genre, mostly due to the rise of debate schools and clubs in the Anglo-Saxon tradition where societal matters are extensively discussed in all kinds of debate tournaments. In this context, the so-called theory of the stock issues has been
13 For the sake of correctness: as a student of Plato, Aristotle would probably not call himself a rhetorician, but a
philosopher. However, his treatise On Rhetoric is without doubt a cornerstone in the development of classical rhetorical theory.
developed. This theory lists possible points of discussion between two teams. The issues are divided over two categories: need issues and plan issues.
Need issues pertain to the necessity of change in the status quo. The need issues, in turn, fall apart in two categories: ill and blame. Ill is to say: (1) there are harms, evils, needs, problems in the status quo, and (2) these ills are significant, that is: grave. Blame is: (3) the ills are inherent to the status quo. For instance, if no traffic rules would exist, chaos on the streets would be due to a lack of rules. In case, however, traffic rules do exist, chaos might be due to deficient compliance with the rules. In such a case, there is no need for a change of the law, the police should then just better carry out their duties.
Plan issues pertain to the suitability of the proposed plan, given the problematic situation. They also fall apart in two categories: cure and cost. Cure is to say: (4) the plan should be feasible and (5) effective. If a plan cannot be implemented, or if it does not solve the problem, it is useless, and thus it should be rejected. Cost means that (6) the advantages of the plan should outweigh possible disadvantages. The stock issues can be listed as follows (Braet 1984: 149):
• Need issues: Is there a need for changing the status quo?
o Ill: Are there significant ills (harms, evils, needs, problems) in the status quo? ▪ Issue (1): Do ills exist?
▪ Issue (2): Are the ills significant? o Blame
▪ Issue (3): Are the ills inherent in the status quo?
• Plan issues: Will the plan meet the need without significant disadvantages? o Cure: Will the plan remedy the ills of the status quo?
▪ Issue (4): Can the plan be implemented? ▪ Issue (5): Will the plan solve the problem? o Cost
▪ Issue (6): Will the cure cost too much? (Do the disadvantages outweigh the disadvantages?)
The theory of the stock issues can be a useful tool to determine a party’s argumentative duties in the context of medical decision-making. Strikingly enough, the terminology used for policy-making is taken from the medical domain (ill, cure, remedy). Like in policy-policy-making, a doctor (or: the child’s parents) has (or: have) to prove that the present situation is unacceptable, for instance because the child is severely suffering (ill), and that this is due to a lack of treatment
or to the current treatment (blame). Hence, the protagonist has to prove that the proposed intervention will remedy the ills (cure) and that its benefits outweigh eventual disadvantages (cost).
In a medical context, discussions about the necessity of action will arise if a doctor and a child’s parents hold different ideas about the child’s diagnosis and prognosis (issue 1) or if both parties hold different evaluations of the child’s status (issue 2). In practice, these discussions are strictly regulated by the law and specific procedures have to be followed. Let’s take discussions about the second issue (Are the ills significant?) as an example. If parents request euthanasia, one legal condition is that the suffering of the child is unbearable. In The Netherlands, pain perception is measured by a so-called pain measurement test, that scores the patient’s situation on seven five-point scales. If the total score is over 17 points (average per question: 2.43), a situation is judged problematic, neuro surgeon de Jong was quoted in Algemeen Dagblad (Docter 2012). According to his research, children with the diagnosis spina bifida do not suffer significant pain. Thus, he holds, spina bifida cannot be a ground for euthanasia: the present situation lacks significance.
Discussions about the necessity of action may also arise if the protagonist fails to convince the antagonist of the insufficiency of present interventions. In other words, the protagonist has to show that the serious problem is not adequately dealt with in the status quo (issue 3). For instance, parents who have witnessed deterioration of their child’s situation, despite numerous attempts to cure the child’s illness or alleviate its pain may be hesitant to adopt yet another treatment. The parents may then start to suppose that their child’s suffering needlessly endures, because it simply cannot be stopped or alleviated sufficiently. De Vos-Broerse (2015) discusses the case of the three-year old Bruce who severely suffered from acquired brain damage. He underwent numerous interventions that turned out not to be effective. Therefore, Bruce’s parents held, further treatment should be withheld. Yet, the medical team did not want to give up. De Vos-Broerse (2015: 157) cites Bruce’s mother: ‘We had a new team of doctors who did not yet know Bruce. It seemed as if they wished to give him a last chance. Yet it was long over.’ In other words: according to the parents, there was no need for further treatment: enough had been done. Eventually, de Vos-Broerse notes, Bruce became respiratory insufficient and died.
Discussions about the plan will arise when parents doubt the adequacy of the proposed medical intervention, given the situation of their child. They may question the solvability of the proposed intervention (issue 4). Considerations about the effectivity of prolonged pain relief played a role in the case of four days old Maartje in 1995. Although it was possible to provide alleviation of pain in the short term, in the long term, the available means would fail to provide
sufficient alleviation of pain. The parents were afraid that ‘doctors would “endlessly” treat Maartje’ (ten Haaft 1995, my transl.). Therefore, they favoured withdrawal of treatment and active termination of life. The doctor granted their request and carried out an at that moment illegal medical intervention.
According to the literature, many discussions arise over the question of whether treatment will be effective (Verwij & Kortman 1999: 146). In most cases, a doctor will have to convince parents that further treatment will not be effective. This type of interventions is referred to as “medically ineffective” (“kansloos”) or “futile” treatment. As discussed in the previous section, parents may need time to accept that nothing more can be done (Oostewechel & Verhagen 2014). However, the question of how to emotionally best support parents falls outside the scope of this thesis. Here, I stick to the question of how doctors can anticipate and counter doubts or criticisms by means of argumentation. Instead of solely proving that a particular treatment is ineffective, a doctor could point at the costs of further treatment (e.g. needless extension of suffering, the burden of undergoing a medical intervention etc.). Professor and surgeon Kievit (2012: 524) writes the following: ‘What concerns me, is that I have seen too many cases where – against better judgement, almost like in a Greek tragedy – a choice was made for aggressive, burdensome and costly medical interventions of which a patient only experienced harm.’ He suggests that doctors may be inclined to adopt numerous treatments at all costs, for instance to resist the feeling of having failed, to show empathy or to avoid feeling guilty after the patient may have died. Instead, he holds, doctors should be willing to consider the costs of futile treatment, and also include those considerations in their conversations with patients.
Another topic of discussion may be the feasibility of the proposed medical intervention (issue 5). One major point of discussion could be if a proposed intervention meets the legal requirements. In 2011 Trouw reported about a case in Argentina where doctors refused to withdraw treatment of baby Camila. Camila had never been able to breathe and she was completely dependent on artificial respiration. Her mother requested to stop the respiration, but since this was not allowed by the Argentinian law, which only allows to discontinue artificial respiration in case of brain death, the request was denied (Zepeda 2011).
Lastly, the protagonist has to show that the gains of his proposed course of action outweigh its costs (issue 6). Costs are negative side-effects of the proposed intervention. Argumentatively speaking, pointing at side effects could be analysed as a means of defending the counter-standpoint. By discussing the costs of a plan, the protagonist does not only provide the arguments that support his proposal (in classical rhetorical terms: confirmatio), but he can also
refute possible objections against it (refutatio). The counter-argument can be reconstructed as a negative pragmatic argument:
1 Medical intervention X should not be carried out, because 1.1a Medical intervention X leads to Y, and
1.1b Y is undesirable. 1.1’ If 1.1a-b, then 1.
The protagonist can deal with objections in two ways. One is to counter the objections by means of the so-called critical questions: he can show that X does not lead to Y, that Y is not undesirable, or that Y can be countered by other means (van Eemeren, Houtlosser & Snoeck Henkemans 2007: 177–185). The other is to show that the objections do not outweigh the gains of the plan. In discussions about medical decision-making, the weight of the gains follow from the necessity for action (issues 1-3) and the extent to which the plan succeeds to resolve the problem (issue 4-5). The weight of the costs is the sum of all negative side effects (issue 6): in case grave side effects are to be expected, the protagonist will most probably be more reticent than in cases with less serious side effects. Of course, eventual positive side effects count as an extra argument in favour of the protagonist’s position.
The theory of the stock issues provides a list of six possible issues that may play a role in the context of policy-making. By defining medical decision-making as a form of medical micro-policymaking the issues of the aforementioned context can be translated to the context of end-of-life decision-making. In presenting a proposal, the protagonist needs to show that there is a need for action and that the proposed plan is the most adequate course of action, given the problems in the status quo. The protagonist should not only take into account arguments in support of his position (confirmatio), but also possible counter-arguments (refutatio). Obviously, the merits of the medical intervention should outweigh its costs.
The above list is a functional categorisation of possible issues in the context of end-of-life decision-making. It can serve as a heuristic device that enables a systematic critical appraisal of argumentation in general and that can also be applied to the specific context of medical decision-making. Moreover, it shows that discussions over a particular issue presuppose agreement over earlier issues: if the parties discuss the adequacy of a proposed intervention (plan issues), they most probably do agree upon the fact that some form of action is necessary (need issues).
Every form of criticism can be allocated to one or more of the issues. However, one problem might be how to label ethical issues. Take the situation where the antagonist rejects discontinuation of treatment based on religious considerations (“Only God can decide when a life ends”). In terms of the stock issues, this can be analysed as disagreement over the need issues: according to the antagonist, there is no need for action. Does this mean the antagonist denies the existence of the ill (issue 1) or its severity (issue 2)? Not necessarily. Does it mean the antagonist does not blame the status quo (issue 3)? Not necessarily. In other words: although the antagonist may agree upon each of the need issues, he still may not agree upon the fact that action should be carried out. In an alternative interpretation, the antagonist criticises the plan: he agrees upon the fact that some form of action is necessary, but does not support the particular intervention of discontinuation of treatment. Again, this does not imply the antagonist denies the solvability of non-treatment (issue 4) or its feasibility (issue 5). However, it also makes little sense to analyse acting against God’s will as a cost (issue 6). In other words: the question remains how an appeal to principles should be analysed in terms of the theory of the stock issues.
3.4 The burden of proof
Aside from the question of how each particular criticism should be labelled, the theory of the stock issues provides a useful list of all issues that may play a role in policymaking, and the above paragraph shows how these issues can be translated into the context of end-of-life decision-making. For a doctor, such a list may be useful in two respects. If a doctor proposes to carry out a particular medical intervention, he takes upon himself the role of protagonist. In this role, a doctor will search to anticipate possible doubts or criticisms of the child’s parents. The theory of the stock issues lists these possible doubts or criticisms.
If, on the contrary, parents propose a particular medical intervention, a doctor may take upon himself the role of antagonist based on, indeed, the exact same possible issues. A doctor may refuse to carry out the proposed action if the parents fail to convince him of their standpoint. The doctor can also go one step further and try to convince the parents that their proposal should not be carried out. If a doctor takes upon himself the role of protagonist of the opposite (negative) standpoint he has the burden of proof.
The exact formulation of the doctor’s burden of proof depends on two characteristics: the doctor’s role (i.e. protagonist of either a positive standpoint or a counter-standpoint) and the type of decision (i.e. treatment, non-treatment or special medical care).
The burden of proof is first affected by the doctor’s role. Whereas the protagonist has to show that there is a need for action and that the proposed intervention is the most adequate intervention, the antagonist only has to raise doubts about either of the two conditions. In a mixed dispute, a doctor has to proof that either one of the conditions is not met. If there is no need for action, then why adopt any plan at all? But even if action is necessary, if the plan is not adequate, then why adopt it? The same goes for each of the underlying issues. For instance, if the plan is effective, but not feasible, then it cannot be implemented. In other words: the protagonist has to “win” each of the six issues. As a consequence, the antagonist has to “win” only one of them (Braet 1984: 159).
It has been argued that, at least in some cases, unless required by the antagonist, the protagonist does not have to address the feasibility issue (issue 5) and the cost issue (issue 6). In other words: generally speaking, it is assumed that a proposed intervention can indeed be carried out. For instance, it is assumed that the plan is in line with the law, unless the antagonist can demonstrate that there is a conflict with existing legal requirements. The same applies to the cost issue: in building a maximally strong case, the protagonist can, again at least provisionally, leave aside considerations about what might be disadvantageous about his proposed solution and wait for the antagonist to come up with the negative side-effects (Braet & Berkenbosch 1989: 30).
The doctor’s burden of proof is also affected by the type of medical intervention that is proposed. First, if one of the parties proposes to adopt a particular treatment, it has to be shown that the proposed treatment is to be preferred over the status quo (i.e. non-treatment or different treatment). In terms of the issues, it has to be proven that a child severely suffers from a particular (set of) disease(s) (ill) which is not satisfactorily dealt with in the status quo (blame). The proposed treatment should be effective (cure) and its advantages should outweigh eventual disadvantages (cost). The other party can come up with doubts or criticisms regarding one or more of the issues (non-mixed dispute). In order to support the standpoint that the proposed treatment should be withheld the antagonist again has to show that one of the issues can be proven wrong (mixed dispute). If a doctor holds that treatment A should be withheld, he may be expected to offer a reasonable alternative (i.e. continuation of the status quo, treatment B or non-treatment).
Second, if one of the parties proposes non-treatment, that is: to withdraw (or: discontinue) existing treatment, it has to be shown that the effects of discontinuation of treatment are to be preferred over the status quo. In terms of the issues, the protagonist has to show that the child is severely suffering (ill) despite serious attempts to satisfactorily control its malady (blame).
In such a case, both parties may come to decide that an end should be put to the suffering. Since non-treatment will in many cases lead to the patient’s dead, the solvability issue speaks for itself. The question of whether non-treatment is feasible may be answered negatively if not every reasonable attempt has been made to stop the child’s suffering. In such a case, the doctor could be accused of and prosecuted for being careless. However, it is anyway not plausible that the parties would decide to withdraw treatment without having given a chance to treatment options that make a reasonable chance. In a mixed difference of opinion the antagonist’s role is to show that the present situation is acceptable or that there are still alternatives left.
Third, since only parents can request euthanasia, the protagonist in discussions about active termination of life will always be the parents. As was discussed in the previous section, these discussions are strictly regulated by the law. It has to be determined whether the child’s situation is hopeless (ill) and whether all means have been exhausted (blame). Again, the effectivity and feasibility speak for themselves. Lastly, the question of whether the benefits outweigh the costs can be translated into the question of whether permanent liberation of suffering through life termination outweighs eventual (future) (unforeseen) improvement or recovery.
In total, the doctor’s possible positions are the following (with Pro = protagonist, Ant = antagonist, TP = treatment proposal, NTP = non-treatment proposal and ER = euthanasia request): (1) Pro-TP, (2) Ant-TP, (3) Pro-NTP, (4) Ant-NTP, (5) Ant-ER. As a protagonist, the doctor always has the burden of proof. As an antagonist, he only has to raise doubts about a proposed intervention. In reaction to a parents’ proposal, a doctor can also decide to defend the counter-standpoint. In that case he becomes the protagonist of a negative standpoint that has its own burden of proof. The doctor’s burden of proof is thus dependent on his position and the type of decision. The doctor’s possible positions with burden of proof are schematically represented in table 1.
Table 1. Schematic overview of a doctor’s possible positions with burden of proof.
Protagonist Antagonist (+ protagonist of negative standpoint)
Treatment proposal
Standpoint: Treatment A should be
implemented.
Burden of proof
Standpoint: Treatment A should be
withheld.
• Patient severely suffers from disease X (ill), and
• The suffering is due to present treatment or non-treatment (blame), and
• Treatment A will remedy (or: significantly reduce) the suffering (cure), and
• The advantages of treatment A outweigh its disadvantages (cost).
• Patient’s suffering is not severe enough (ill), or
• Patient’s suffering is not inherent in the status quo (blame), or
• The proposed treatment cannot terminate (or: significantly reduce) the suffering, or
• The advantages of treatment X do not outweigh its disadvantages.
Non-treatment proposal
Standpoint: Treatment A should be
withdrawn.
Burden of proof
• Patient severely suffers from disease X (ill), and
• Present treatment does not remedy or significantly reduce suffering from disease X (blame), and
• Withdrawal of treatment will terminate (or: more successfully reduce) the suffering (cure), and • The advantages of withdrawal of
treatment outweigh its
disadvantages (cost).
Standpoint: Treatment A should be
continued.
Burden of proof
In case non-treatment will lead to end of life:
• Although suffering from disease X exists, it is not intolerable (ill), or • Suffering from disease X is not
inherent in the status quo (there are alternatives available) (blame)¸ and • The alternatives are adequate (see
issues under treatment proposal).
In case non-treatment will not lead to end of life
• Although suffering from disease X might be significant (ill), the present treatment most adequately remedies or most successfully reduces suffering from disease X (blame), or
• Intolerable suffering from disease X is not inherent in the status quo, and
• The alternatives are adequate (see issues under treatment proposal).
Euthanasia request
Only parents can request euthanasia.
Standpoint: The request should be
rejected.
Burden of proof: The request does not
meet one of the legal requirements beneath.
• The patient’s request should be voluntary and well considered. • The patient’s suffering should be
unbearable and without prospect of improvement (cf. ill)
• The patient should be informed about their situation and prospects.
• There are no reasonable
alternatives (cf. blame)
• Another, independent physician should be consulted.
• The termination of life should be performed with due medical care and attention.
(Euthanasia Act 2002, transl. retrieved from Buiting et al. 2008: 2)
3.5 Argumentation as a means to anticipate possible doubts
In order to adequately give shape to his argumentative duties, a doctor should choose the type(s) of argumentation that best meet(s) the burden of proof that, in turn, follows from the above listed possible standpoints. Here, I will discuss the role of pragmatic and symptomatic argumentation in discussions with a child’s parents. In previous research it has been shown that
these types of argumentation are predominant in consultations about palliative systemic treatment for advanced cancer (Akkermans et al. 2018). I will show that they can also play an important role in the present context.
As a protagonist of a treatment proposal or of a non-treatment proposal, a doctor has to prove that (1) there is a need for action, and that (2) the proposed intervention best meets the problems in the status quo. In argumentative terms the argument can be rephrased as a pragmatic argument (which is a subtype of causal argumentation) that goes as follows: 1.1a The proposed intervention leads to A (cf. plan issues), and 1.1b A is desirable (cf. need issues). Supporting 1.1a are the cure issues: 1.1a.1a The plan is feasible (issue 4) and 1.1a.1b The plan is effective (issue 5). Supporting 1.1b are the ill, blame and cost issues: 1.1b.1a Ills exist (issue 1), 1.1b.1b Ills are significant (issue 2), 1.1b.1c Ills are inherent in the status quo (issue 3) and 1.1b.1d The advantages outweigh the disadvantages (issue 6).
In weighing alternative options – which happens in the case of preference-sensitive decisions – following Schellens et al. (1988: 90-93), two extensions to a pragmatic argument are necessary. First, the argument should not only point at the positive consequences of the proposed action, but also at its costs. Evidently, the positive consequences should outweigh the costs (issue 6). Second, the argument should take into account the positive consequences and costs of alternative options. In terms of the balance between positive consequences on the one hand and costs on the other hand, the proposed course of action should outweigh alternative plans. Therefore, an extra premise should be added: 1.1c No alternative plan leads to better outcomes than the proposed action. The argumentation follows the pattern beneath:
1 (Non-)treatment should be implemented, because
1.1a (N)T leads to A, because
1.1a.1a (N)T is effective, and (1.1a.1b (N)T is feasible), and 1.1b A is desirable, because 1.1b.1a Ills exist, and
1.1b.1b Ills are significant, and
1.1b.1c Ills are inherent in the status quo, and
1.1b.1d The advantages of (N)T outweigh the disadvantages, and
As an antagonist, the doctor has to raise doubts about one of the issues or he can prove that (1) action is unnecessary (or: undesirable), or that (2) the proposed intervention is not adequate, or that (3) alternatives lead to better outcomes. In order to prove the first point, a doctor can state that the ills do not exist (issue 1), that the ills are not severe (issue 2), that the ills are not inherent in the status quo (issue 3) or that the negative consequences outweigh the benefits (issue 6). If a doctor acknowledges that some form of action is desirable, he can raise doubts about the plan issues or proof that the plan will not be effective in realising the claimed result (issue 4), because the plan is not feasible (issue 5), or because alternatives will lead to more desirable outcomes.
In argumentative terms the doctor’s first argument can be reconstructed as a symptomatic argument that goes as follows: 1.1 Action is unnecessary (or: undesirable). Its supporting arguments are the following: 1.1.1 The ills do not exist (sympt.), 1.1.2 The ills are not significant (sympt.), 1.1.3 The ills are not inherent in the status quo (sympt.), and 1.1.4 The costs of the plan outweigh its benefits (pragm.). The argument can be reconstructed as a causal argument that goes as follows: 1.2 The proposed action is not adequate. Its supporting arguments are the following: 1.2.1 The plan is not effective (symp.), 1.2.2 The plan is not feasible (symp.). The third argument can be reconstructed as a pragmatic argument that goes as follows: 1.3 Alternatives lead to more desirable outcomes (pragm.). The argumentation follows the pattern beneath:
1 (Non-)treatment should not be implemented, because 1.1 (N)T is unnecessary (or: undesirable), because 1.1.1 The ills do not exist, or
1.1.2 The ills are not significant, or
1.1.3 The ills are not inherent in the status quo, or 1.1.4 The costs of (N)T outweigh its benefits, or
1.2 (N)T is not adequate (or: does not lead to A), because 1.2.1 (N)T is not effective, or
1.2.2 (N)T is not feasible, or
1.3 Alternatives lead to more desirable outcomes.
Lastly, in discussions about a euthanasia request, a doctor will probably refer to the legal conditions. All of the arguments (on the main level and on a deeper level) can be reconstructed as symptomatic argumentation. The pattern goes as follows:
