Communitarianism and the Ethics of Communicable Disease: Some Preliminary Thoughts

Battin M. Francis L. Jacobson J. Smith C. , The Patient as Victim and Vector: Ethics and Infectious Disease (New York: Oxford University Press, 2009).

Davis F. D. , “Human Dignity and Respect for Persons: A Historical Perspective on Public Bioethics,” in Human Dignity and Bioethics: Essays Commissioned by the President's Council on Bioethics, March 2008, available at <http://bioethics.georgetown.edu/pcbe/reports/human_dignity/chapter2.html> (last visited September 7, 2011).

Jonsen A. , The Birth of Bioethics (New York: Oxford University Press, 1998).

Francis L. Battin M. Jacobsen J. Smith C. Botkin J. , “How Infectious Diseases Got Left Out – And What This Omission Might Have Meant for Bioethics,” Bioethics 19, no. 4 (2005): 307–332. The President's Council on Bioethics website drives this point home: One would be hard-pressed to find any mention of infectious, communicable or contagious diseases. See <http://www.bioethics.gov> last visited (September 7, 2011). Cf. Churchill L. , “Are We Professionals? A Critical Look at the Social Role of Bioethics,” Daedelus 128, no. 4 (1999): 253–235 (noting that bioethicists have been most instrumental in “securing decisional prerogatives for patients in the face of the long tradition of medical paternalism [and] promoting respect for human subjects and reducing harm and abuse in medical research”); see id. ( Jonsen ) (describing research with fetal tissue, an issue that entered the public consciousness on account of Roe v. Wade, and defining death as being among the initial inquiries of bioethicists). Implicit in this analysis is the view that the considerable scholarship on the ethics of AIDS stands very much on its own, consistent with the claims and critiques of “AIDS exceptionalism,” – i.e., that legal, medical, and ethics scholars treated AIDS differently than other similar conditions. See, e.g., Bayer R. Fairchild A. , “Changing the Paradigm for HIV Testing – The End of Exceptionalism,” New England Journal of Medicine 355, no. 7 (2006): 647–649; Etzioni A. , “HIV Sufferers Have a Responsibility,” Time, December 13, 1993, at 100 [essay] (arguing against the vigorous resistance to contact tracing and testing for HIV, noting that “if AIDS were any other disease – say, hepatitis B or tuberculosis – we would have no trouble (and indeed we have had none) introducing the necessary preventive measures”).

See, e.g., Pellegrino E. Thomasma D. , “The Good of Patients and the Good of Society: Striking a Moral Balance,” in Boylan M. , ed., Public Health Policy and Ethics (Netherlands: Kluwer Academic Publishers, 2004): 17–37 (arguing that the clinician has a moral obligation to serve the good of the patient, even when doing so Conflicts with the greater public good).

Farmer P. Gastineau Campos N. , “New Malaise: Bioethics and Human Rights in the Global Era,” Journal of Law, Medicine & Ethics 32, no. 2 (2004): 243–251, at 246 (arguing that it is not so much that bioethics has ignored the problems that afflict large populations but that bioethicists have simply not attended to the problems that affict people who lack the opportunity to be patients: “[M]illions die – not from too much care or inappropriate care but rather from no care at all”). See also Selgelid M. Kelly P. Sleigh A. , “TB Matters More,” in Boylan M. , ed., International Public Health Policy and Ethics (Springer Science+Business Media B.V., 2008): At 233–247.

See Battin , supra note 1. See also Verma G. Upshur R. Rea E. Benatar S. , “Critical Reflections on Evidence, Ethics and Effectiveness in the Management of Tuberculosis: Public Health and Global Perspectives,” BMC Medical Ethics 5, no. 2 (2004): 2; Bryan C. Call T. Elliott K. , “The Ethics of Infection Control: Philosophical Framework,” Infection Control and Hospital Epidemiology 28, no. 9 (2007): 1077–1084.

See Churchill , supra note 4; Jonsen , supra note 3.

Callahan D. , “Individual Good and Common Good: A Communitarian Approach to Bioethics,” Perspectives in Biology and Medicine 46, no. 4 (2003): 496–507.

See Jonsen , supra note 3, at 332–334 (describing the history of the Belmont Report [1979] and its introduction of the three principles of respect for persons, beneficence and justice as the framework for human subject research, and the publication later that same year of Beauchamp and Childress's text, Principles of Biomedical Ethics, in which they introduced the four principles we now call principlism).

See Pellegrino , supra note 5.

Gillon R. , “Ethics Needs Principles – Four Can Encompass the Rest – and Respect for Autonomy Should Be ‘First among Equals,’” Journal of Medical Ethics 29, no. 5 (2003): 307–312; see Pellegrino Thomasma , supra note 5 (“we have held that an authentic ethic of clinical medicine must have its roots in a philosophy of medicine in which the good of the patient determines the obligations and virtues of the health professional”).

See Davis , supra note 2 (“principlism…has, for several decades now, been dominant…in the clinical sphere, i.e., in relations between physicians and patients”).

See Gillon , supra note 12.

Callahan D. , “Principlism and Communitarianism,” Journal of Medical Ethics 29, no. 5 (2003): 287–291.

See Gillon , supra note 12.

Vermeersch E. , “Individual Rights Versus Societal Duties,” Vaccine 17, no. Supp. 3 (1999): S14–S17 (arguing that it is possible to justify public health interventions like vaccination without violating Mills' strong anti-paternalistic views).

See Verma , supra note 7.

Compare Parmet W. , “The Perils of Individualizing Public Health Problems,” Journal of Legal Medicine 30, no. 1 (2009): 83–108 (arguing against the individualization of disease, such as what she asserts was done in the Andrew Speaker case, on the grounds that the “infected individual becomes seen not as a disease's victim, but as its vector”) with Battin , supra, note 1 (articulating a theory of infectious disease that posits that people are simultaneously victims and vectors).

Benatar S. Daar A. Singer P. , “Global Health Ethics: The Rationale for Mutual Caring,” International Affairs 79, no. 21 (2003): 107–138. See also Sunstein C. , “Propter Honoris Respectum: Rights and Their Critics,” Notre Dame Law Review 70 (1995): 727–768 (describing the polarized debate as one in which rights are viewed as “individual, atomistic, selfish, crude, licentious, antisocial” and responsibilities as “collective, social, altruistic, nuanced, and associated with appropriate or traditional values”).

As the SARS epidemic demonstrated, healthcare workers may be among those most vulnerable to being both victims and vectors of contagious diseases. See Rothstein M. Alcalde M. G. Elster N. Anderlik Majumder M. Palmer L. Stone T. H. Hoffman R. , Quarantine and Isolation: Lessons Learned from SARS, A Report to the Centers for Disease Control and Prevention, November 2003, at 55 (noting that “health care workers accounted for over 40% of all SARS patients in Toronto”). In an era in which the probability that patients are infected with a novel or drug-resistant pathogen is on the rise, the lack of effective treatments and vaccines place health care workers in a kind of time warp in which they are practicing medicine more like their 19th- than their 20th-century predecessors, a situation that few likely contemplated when they decided to pursue their professional degrees. See Sepkowitz K. , “One Disease, Two Epidemics – AIDS at 25,” New England Journal of Medicine 354, no. 23 (2006): 2411–2414 (noting that there has been an increase in the number of health care providers who have declined to treat patients with HIV for fear of contracting TB). This implicates questions about the moral obligation of practitioners to treat notwithstanding their risk of personal harm, as well as our obligation as patients and as a society to protect practitioners from undue risk. Although similar concerns were raised during the early years of the AIDS epidemic, the low chance of transmission led many to view those concerns as reflecting more anti-gay animus than legitimate, evidence-based health concerns. See, e.g., Arras J. , “The Fragile Web of Responsibility: AIDS and the Duty to Treat,” Hastings Center Report 18, no. 2 (April/May 1988): S10–S20. That gloss, combined with the differences in the risk of transmission between diseases like HIV, which are passed through an intimate exchange of fluids versus diseases like TB, SARS, or influenza that are passed via droplet nuclei, reduces the generalizable principles articulated in that literature.

Sandel M. , Democracy's Discontent: America in Search of a Public Philosophy (Cambridge: Harvard University Press, 1998).

Id. See also Etzioni A. , “A Communitarian Approach: A Viewpoint on the Study of the Legal, Ethical and Policy Considerations Raised by DNA Tests and Databases,” Journal of Law, Medicine & Ethics 34, no. 2 (2006): 214–221 (defining communitarianism as a “social philosophy that maintains that society should articulate what is good, and asserts that such articulations are both necessary and legitimate. Communitarianism is often contrasted with classical liberalism, a philosophical position that holds that individuals should formulate their idea of good on their own. Communitarians examine the ways shared conceptions of the good [values] are formed, transmitted, justified, and enforced”).

An example of other health policies that share these qualities and that might also benefit from a communitarian approach include the issue of organ donations and whether the presumption should continue to be set against post-mortem donations or whether it is time that the presumption be switched toward donation.

Martin R. , “Law as a Tool in Promoting and Protecting Public Health: Always in Our Best Interests?” Public Health 121, no. 11 (2007): 846–853.

See Callahan , supra note 9.

Kuczewski M. , “The Epistemology of Communitarian Bioethics: Traditions in the Public Debates,” Theoretical Medicine and Bioethics 22, no. 2 (2001): 135–150 (positing a theory of instrumental communitarianism in which “moral and religious traditions can effectively dialogue” through the use of “the exploration of shared intuitions that human beings have regarding particular examples, cases, or values”).

Indeed, because it does not prescribe what ought to constitute the common good, communitarianism permits the possibility that some combination of autonomy, beneficence, non-maleficence, and justice may, in greater or lesser measure, represent its constituent parts. See, e.g., Etzioni , supra note 24, at 214 (applying communitarian principles to analyze the issue of DNA databases and placing considerable emphasis on the need to weigh individual “rights” against the good of the community and further recognizes that communitarians often “differ in the extent to which their conceptions are attentive to liberty and individual rights”).

Kuczewski M. , “The Common Morality in Communitarian Thought: Reflective Consensus in Public Policy,” Theoretical Medicine and Bioethics 30, no. 1 (2009): 49–52 (applying a communitarian approach to the question of whether there is an obligation to provide universal health insurance in the United States).

See Jonsen , supra note 3, at 333.

Minister of Health of the Provinces of the Western Cape v. Goliath , Case No. 13741/07, ¶ 14 (July 28, 2008), a case decided by the High Court of South Africa, Cape of Good Hope Provincial Division. The facts used in this case study are taken quite directly from the pleadings with two exceptions intended to draw the moral issues more sharply into focus. First, although the case study suggests that the hospital intended to forcibly treat the respondents (forced treatment, unlike forced detention, being expressly contemplated under governing TB policy), the Minister of Health disclaimed any intention to do so. Second, with respect for the outcome of the case for Ms. Goliath, the suggestion that she might receive palliative care was never on the table because she died before the court issued its ruling.

Department of Health, South Africa, Draft Tuberculosis Strategic Plan for South Africa, 2007–2011, at § 6.6.2. The guidelines for the treatment of multi- and extensively drug resistant tuberculosis call for a minimum of a six-month hospital stay, or until the individual has three negative sputum smears, a milestone that the state has deemed denotes less infectivity.

Department of Health, South Africa, DOTS-Plus for Standardised Management of Multidrug-Resistant Tuberculosis in South Africa: Policy Guidelines, January 2004.

Macklin R. , “Applying the Four Principles,” Journal of Medical Ethics 29, no. 5 (2003): 275–280 (emphasis in original). I recognize that there is some debate in the literature concerning whether the “respect for persons” principle and the principle of autonomy express exactly the same idea. For my purposes, I am satisfied that they do.

It is worth noting that this Conflicts with current South African TB policy, which requires that individuals with XDR TB remain in the hospital and be treated until they are sputum smear negative.

See, e.g., Lindsay R. , “Bioethics Policies and the Compass of Common Morality,” Theoretical Medicine and Bioethics 30, no. 1 (2009): 31–43.

Tutu D. , No Future without Forgiveness (New York: Doubleday, 1999): at 31.

Port Elizabeth Municipality v. Various Occupiers, 2004 (53) (South Africa, Constitutional Court).

See, e.g., Founding Affidavit of Engelbrecht Elizabeth Helna [one of the pleadings in the Goliath case], October 3, 2007, at ¶ 27 (alleging that “majority of XDR tuberculosis patients have a history of irresponsible compliance with tuberculosis treatment,” an assertion that appears to blame the development of XDR TB on non-adherence without accounting for the possibility of an endogenous reinfection); Raviglione M. Smith M. , “XD Tuberculosis – Implications for Global Public Health,” New England Journal of Medicine 356, no. 7 (2007): 656–659 (noting that more than half of the South African patients in the original “epidemic” of XDR TB reported having never been treated for their first case of TB, making it unlikely that reinfections were the result of endogenous adaptation); Cohen T. Murray M. , “Modeling Epidemics of Multidrug-Resistant M. tuberculosis of Heterogeneous Fitness,” Nature Medicine 10, no. 10 (2004): 1117–1112; Altman L. , “Rise of a Deadly TB Reveals a Global System in Crisis,” New York Times, March 20, 2007 (reporting difference of opinion among the WHO, the CDC, and Harvard researchers on whether the conferral of antibiotic resistance exacted a reproductive cost that made it unlikely for people to contract M/XDR TB as a primary infection); Andrews J. Gandhi N. Moodley P. Shah S. Bohlken L. Moll A. , “Exogenous Reinfection as a Cause of Multidrug Resistant and Extensively Drug-Resistant Tuberculosis in Rural South Africa,” Journal of Infectious Diseases 198, no. 11 (2008): 1582–1589.

Id. ( Andrews )

See Basu S. Andrews J. Poolman E. Gandhi N. Shah S. Moll A. , “Prevention of Nosocomial Transmission of Extensively Drug-Resistant Tuberculosis in Rural South African District Hospitals: An Epidemiological Modeling Study,” The Lancet 370, no. 9597 (2007): 1500–1507.

To the extent that immunocompetent individuals are exposed to TB, the odds hover somewhere around 90% that the infection will lie dormant for the rest of their lives, and hence run only a small chance of developing active TB. For immunocompromised individuals, by contrast, the odds of acquiring an active case of TB are considerably higher, a consequence, it would appear, of it requiring many fewer “germs” to overwhelm the body's already weakened immune system's defenses. Because they can acquire an infection upon a lesser exposure, they appear therefore to carry a relatively low mycobacterial load, which translates into them being less likely to be able to readily transmit the disease to others. See Iseman M. , “An Unholy Trinity – Three Negative Sputum Smears and Release from Tuberculosis Isolation,” Clinical Infectious Diseases 25, no. 3 (1997): 671–672 [editorial] (asserting that “persons with AIDS and tuberculosis are clearly no more infectious – perhaps less so – than the typical, immunocompetent patients with pulmonary tuberculosis); Mixides G. Shende V. Teeter L. Awe R. Musser J. Graviss E. , “Number of Negative Acid-Fast Smears Needed to Adequately Assess Infectivity of Patients with Pulmonary Tuberculosis,” Chest 128, no. 1 (2005): 108–115.

See Basu , supra note 42.

See generally, Lee v. Minister of Correctional Services, Case Number 10416/04 ZAWCHC (February 1, 2011), Western Cape High Court, Capetown, South Africa.

See Basu , supra note 42. A concrete cost analysis of this kind of intervention will require more study since to date, the use of trailers appears only to have been analyzed in the context of overflow capacity for pandemic planning.

See Mixides , supra note 43.

I am mindful of the difficulties and concerns involved in screening South Africans for HIV, including, for example, the fears described in Rosenberg's Tina article, “When a Pill Is Not Enough,” New York Times Magazine, August 6, 2006. However, if it were framed in terms of protecting people with HIV from opportunistic disease rather than protecting people from those infected with the virus, HIV screening might be viewed in a new light.

See Minister of Health of the Provinces of the Western Cape v. Goliath, supra note 32.

WHO Progress Report, “Towards Universal Access to Diagnosis and Treatment of Multi-Drug Resistant and Extensively Drug-Resistant Tuberculosis by 2015,” March 2011, at 2, 9; South Africa is one of the few countries out of the 27 with the highest burdens of M/XDR TB that was making strong progress toward the goal of universal access on the basis of domestic funds alone (i.e., without relying on grants from the Global Fund).

Lee v. Minister of Correctional Services , supra note 45, at ¶¶ 59–59.5, 238–270 (describing critical shortage of nurses in prison as a “time bomb”).

Although some scholars have proposed alternative ethical frameworks that might realize the goals I have outlined here, each takes a smorgasbord approach to a wide array of moral theories. I would argue that communitarianism provides a more coherent and simple approach by comparison, as well as one that neither presumptuously declares that certain values are held universally nor, in carefully declaring that certain values are held universally, fails for lack of specificity. See, e.g., Bosek M. S. Burton L. Savage T. , “The Patient Who Could Not Be Discharged: How Far Should Autonomy Extend?” JONA's Healthcare Law, Ethics, and Regulation 1, no. 4 (1999): 23–30 (seeking to balance patient autonomy with clinical, societal and institutional concerns in case of abusive patient who is HIV+ and in need of dialysis with unconfirmed tuberculosis); Singer P. Benatar S. Bernstein M. Daar A. Dickens B. MacRae S. , “Ethics and SARS: Lessons from Toronto,” BMJ 327, no. 7427 (2003): 1342–1344 (identifying 10 core values, borrowed from human rights, bioethics, social justice and civil rights, which, the authors argue, together form a foundation for a public health ethic); see Bryan , supra note 7 (arguing for “a virtue-based communitarianism [to] complement infection control policies and procedures based on rules (deontology) and results (consequentialism)”).

See Jonsen , supra note 3, at 332 (quoting Beauchamp and Childress in their discovery that “many forms of rule utilitarianism and rule deontology lead to identical rules and actions”). Indeed, some might view with skepticism any claim to moral legitimacy made by an ethical theory that produced wildly discordant results as compared to other more accepted theories.

Munson R. , Intervention and Reflection: Basic Issues in Medical Ethics (St. Louis: University of Missouri, 2008): at 790–91.

See Callahan , supra note 9.

Thomasma D. , “Bioethics with a Difference: A Comment on McElhinney and Pellegrino,” Theoretical Medicine and Bioethics 22, no. 4 (2001): 287–290.

This danger is evidenced by Professor Wendy Parmet's critique of Professor Lawrence Gostin's use of the term, a critique that exhibits some internal inconsistency of its own. Parmet criticizes Gostin for ignoring the theory of “reciprocal obligations between citizens envisioned by communitarians,” yet her discussion of communitarianism suggests in at least one respect that it refers to a collection of individual agendas joined together to form a majoritarian agenda, a view that is no more grounded in reciprocal obligations than Gostin's. See Parmet W. , “Liberalism, Communitarianism, and Public Health: Comments on Lawrence O. Gostin's Lecture,” Florida Law Review 55, no. 5 (2003): 1221–1240.

See Callahan , supra note 9 (emphasis added).

See, e.g., Bayer R. Gostin L. Jennings B. Steinbock B. (eds.), Public Health Ethics: Theory, Policy, and Practice (New York: Oxford University Press: 2007).

Sherwin S. , No Longer Patient: Feminist Ethics & Health Care (Philadelphia: Temple University Press, 1992).

Mann J. , “Medicine and Public Health, Ethics and Human Rights,” Hastings Center Report 27, no. 3 (1997): 6–13.

Cf. Rothstein M. , “Public Health Law, Society, and Ethics: Rethinking the Meaning of Public Health,” Journal of Law, Medicine & Ethics 30, no. 1 (2002): 144–149 (critiquing those who sweep into the term “public health” anything and everything that is population related and advocating more limited conception of the term/field/practice); Gainotti S. Moran N. Petrini C. Shickle D. , “Ethical Models Underpinning Responses to Threats to Public Health: A Comparison of Approaches to Communicable Disease Control in Europe,” Bioethics 22, no. 8 (2008): 446–476 (suggesting that global possibilities of infectious disease “calls for new political practices based upon a renewed sense of ethical responsibility that requires nations to accurately share information about [global infectious diseases], to manage the spread of disease effectively and sometimes to impose rigorous quarantines”).

See Verma , supra note 7. See also Harris J. Holm S. , “Is There a Moral Obligation Not to Infect Others?” BMJ 311, no. 7014 (1995): 1215–1217 (arguing that although there is a “strong prima facie” duty not to communicate disease, it is unreasonable to hold people to that duty unless the state provides “protection and compensation”).

Id. ( Harris Holm ).

Rothstein M. , “Are Traditional Public Health Strategies Consistent with Contemporary American Values?” Temple Law Review 77 (2004): 175–192 (comparing compliance with measures such as quarantine and isolation, which are protective of third parties, in traditionally “communitarian” countries versus countries like the United States).

Parker M. Dickenson D. , The Cambridge Medical Ethics Workbook: Case Studies, Commentaries and Activities (Cambridge: Cambridge University Press, 2001): At 307 (“Feminists, for example, have argued that, whilst communitarianism is very good at describing the benefits of community, it says very little about the damage cause by families and communities and says nothing for those at the periphery of societies for whom we expect moral theory to have special concern. Taken to its logical conclusion, communitarianism seems capable of justifying the oppression of minorities and of the weak by the majority, of the novel by the traditional.”)

See Lindsay , supra note 37, at 31–43.

See Kuczewski , supra note 30.

Karp D. , “Americans as Communitarians: An Empirical Study,” in Etzioni A. Volmert A. Rothschild E. , eds., The Communitarian Reader: Beyond the Essentials (Lanham: Rowman & Little-field Publishers, Inc.: 2004): at 129.

Id., at 135. For example, participants were given three ways of defining “good citizenship:” (1) contributing to one's community (defined as the communitarian position); (2) obeying the law (defined as the social conservative position); and (3) providing for oneself and one's family (defined as the individualist position). The answers were fairly split between the first two positions, with 34%, with the individualist position receiving slightly less support at 27%. Id., at 131.