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Tallis in Wonderland

My Bald Head

Raymond Tallis reveals the philosophical connection between medical ethics and hair loss.

A little while back I was chairing a session at a meeting on the criminalisation of medical error, organised by Margot Brazier, Professor of Law at Manchester University. The meeting was linked to a research programme prompted by the concern that increasing numbers of doctors were being prosecuted for mistakes. In some cases, prosecution seemed contrary to natural justice. While the consequences had been appalling for the patients, the behaviour of the doctors did not seem to be particularly reprehensible. Circumstances had turned human error into catastrophe.

A couple of excellent talks at the meeting suggested ways of clarifying the conditions under which medical errors should be punishable by the law. One speaker proposed that this might be achieved by separating the category of negligent behaviour from that of grossly negligent behaviour. Another suggested that the notion of ‘recklessness’ should be reintroduced to characterise those errors worthy of prosecution. I was not persuaded that taxonomic reform would deliver what was needed, dividing errors that should attract criminal penalty from errors that should not, in a way that would correspond to intuitions of natural justice. At that point, several things dovetailed in my mind.

The first related to the hoo-ha raised by the invitation to Nick Griffin, leader of the British National Party [a right-wing extremist party] to appear on BBC Question Time. This triggered some reflections about the right to free speech, a principle that I uphold with as much fervour as I loathe Griffin. Like most people, however, I do recognise that there have to be limits to free speech. The propagation of evident falsehoods that are libellous or in other ways directly harmful, seem to me to be off limits. Likewise, speech intended to incite racial or other forms of hatred should be illegal. But this leaves unresolved the question of how we should draw a boundary between hostile free speech and hate speech. A demand that all people from ethnic minorities should be forcibly deported clearly would be hate speech. But what about various other adverse comments about people from ethnic minorities (or ethnic majorities, for that matter), or, for example, denial that certain past events, such as the Armenian genocide, took place? There is no evident principled way of separating admissible free speech, which is a right, from inadmissible hate speech, which should be banned. And how f ar should we tolerate those who preach what we may regard as intolerance before we deem the preaching intolerable, and that to tolerate it is to collude with intolerance?

The second experience to dovetail was related to my appearance at an annual debating fest called the Battle of Ideas. I was talking alongside Debbie Purdy, a stalwart campaigner for a change in the law on assisted dying. We were defending the right to assisted suicide for terminally ill patients who had unbearable suffering despite optimal palliative care, who were mentally competent, and who had expressed a sustained wish for such assistance. My argument was in part based on JS Mill’s principle of autonomy: we should respect people’s wishes so long as they do not cause harm to others. Amongst the many objections raised was that we could not clearly define ‘mental competence’ (or ‘being of sound mind’), or ‘unbearable’ suffering, and that we had arbitrarily excluded individuals who had a life expectancy of more than a few months – for example, a physically healthy person who simply had had enough of life. The principle of respect for autonomy, my opponents argued, should require me to assist someone who had decided to jump off a bridge to do so. That was not what I intended at all; but I could see how an ethics that gave personal sovereignty pole position might seem to have this as a logical consequence. (I emphasise seem – but that is a debate for another day.)

The third event was an argument I had about abortion on demand. I found it difficult to justify my support of the present law that abortion should be legal up to, but not beyond, the twenty fourth week of pregnancy. What’s special about the number twenty four, I was asked? It’s based upon empirical, not ethical, facts about the age of viability. Yet probabilistic calculations of the likelihood of survival did not seem entirely appropriate guides for ethical principles.

Finally, in the course of writing a book critical of the extent to which neuroscience (of a sort) is invoked in all sorts of contexts where I do not think it has much to tell us, I came across numerous papers advocating something called ‘neuro-law’. Many lawyers and neuroscientists have argued that in cases where pleas of diminished responsibility have to be considered, the courts ought to make more use of evidence derived from brain scans. As Michael Gazzaniga, an eminent neuroscientist, says (with tongue partly in cheek), “defence lawyers are looking for that one pixel in their client’s brain that shows a malfunction.” (Scientific American Mind, April 2005.) Leaving aside the technical questions of whether brain scans are sophisticated enough to add anything to the rich information about responsibility arrived at by traditional means (they’re not), the aim of using scans to widen the definition of diminished responsibility simply shifts the problem to another place. As we extend the application of the notion of diminished responsibility from cases in which the defendant has gross brain damage after major head injury or in association with a learning disability, to mild abnormalities detectable with only the most powerful fMRI machines, the arbitrariness of the boundary between an individual deemed entirely responsible for their actions and one not so considered becomes evident. The use of brain scans would not itself help us to determine whether a defendant was sufficiently impaired for a plea of diminished responsibility to stick. Neither can scans tell you how impaired responsibility has to be to justify more lenient treatment. That boundary’s a matter of rational debate.

It was then that it became apparent to me that these dilemmas – and indeed, many others – are manifestations of a more general problem that affects certain kinds of decision-making. They are all instances of the so-called ‘Sorites’ problem, or ‘the problem of the heap’. The problem is this: if you have a heap of pebbles, and you start removing pebbles one at a time, exactly at what point does the heap cease to be a heap? The heap I want to employ to illustrate this problem is the heap of hair that used to adorn my head, before time weeded my cranium.

A Smooth Continuum?

Photographic evidence shows that in 1980 I had a full head of hair, while in 1990 I was bald. It follows from this that some time in the 1980s I became bald. However, it seems impossible – or daft – to state when it was I crossed the boundary – to say, for example, that I became bald at 8:30 p.m. on 27th August 1987. And yet there must have been a moment between the two dates when I became bald, otherwise I would not have arrived at the state of being bald by the time 1990 came. The fundamental problem is that of mapping a dichotomous distinction – not-bald versus bald – on to what is essentially a continuous process of hair loss. (It’s not quite continuous, of course, because my loss was hair-by-hair; but it would be continuous to the naked eye looking at my increasingly naked skull. No jokes about ‘fuzzy logic’ at this point, please.) We are required to find a non-arbitrary way to divide a continuum.

This is also what makes the other dilemmas I have discussed impossible to resolve entirely satisfactorily. The relevant divides in the examples I have given are: between non-negligent and grossly negligent medical practice; between perfectly acceptable speech and totally unacceptable speech; between respecting an individual’s autonomy and being concerned for their welfare in a way they might not accept; between a handful of cells that clearly does not have personal interests and a new-born infant who clearly does; and between a person who is fully responsible for the crimes they have committed and one who cannot be held responsible for them. The Sorites problem that pops up in all these superficially unconnected cases exposes the seeming arbitrariness of decisions that allocate behaviour, speech, a foetus, or whatever, to one category or the other.

It may seem that this is more of a problem for individuals of a liberal persuasion such as myself than for those who are less liberal in outlook. But this is not so. Take assisted dying. Those who are opposed to it on religious and other grounds still have to address the needs of people with intolerable symptoms, which is why they accept the principle of the ‘double effect’. This allows the doctor to increase the dose of morphine to deal with pain and shortness of breath (the first effect), even if the drug is going to accelerate death (the second effect). This is admissible in law and acceptable to opponents of assisted dying so long as the primary intention, the one uppermost in the doctor’s mind, is to relieve symptoms rather than to shorten life, which must be only a secondary, unlooked-for effect. Speaking as a doctor who was often faced with this situation, I would not be able to define a clear cut-off between the primary intention to bring about pain relief and a more than passive acceptance of the hastening of death. And no-one else can do this either – including those who accept the double effect as a way of achieving what assisted dying might achieve, without biting the bullet and supporting an explicit hastening of death at the patient’s request. This clinical, ethical and legal fudge around the use of the double effect is even more evident when those who have religious grounds for opposing assisted dying advocate continuous deep sedation, which not only reduces the person to to an organism with merely vegetative functions, but also shortens their life dramatically.

So, falling foul of the Sorites problem is not something only liberals like me have to deal with. Take those who are opposed to abortion or even contraception on the grounds that it frustrates God’s will. If God were omnipotent, it’s difficult to say how puny creatures like humans could successfully frustrate His wishes; but in any case, believers appear to have difficulty specifying, in a principled and consistent way, those circumstances under which God’s will concerning the sanctity of life is to be upheld. For example, the appeal to the sanctity of life by religious opponents of abortion and assisted dying does not seem to extend to forbidding war, one of whose most predictable elements is that some human beings will deliberately kill other human beings. While we might expect such inconsistency from redneck Bible-bashers (who also defend capital punishment), even the more reflective Church of England leaders were very muted in their response to the Iraq war, which predictably killed hundreds of thousands of God’s creatures.

When we try to apply ethical principles to the slippery material of everyday life, we are all of us in the uncomfortable position of having to dichotomise over a continuum. That is why I wear a hat, as you can see. It is unequivocally either on or off, and can thus conceal the ambiguities that are being wrestled with beneath my bald cranium.

Raymond Tallis is a physician, philosopher, poet and novelist. His new book Michelangelo’s Finger: An Exploration of Everyday Transcendence is published by Atlantic.