Anthony Egan SJ (Steve Biko Bioethics Centre)

Introduction My reasons for this topic

Ethics beyond legalism Ethics ‘beyond’ principlism Conscience: personal and social Health care matters – public good Corruption could make the NHI stillborn

Outline of this talk Defining Conscience, including what its not Corruption: definition, application and implication

Definitions : what it is, what its not. Application: A South African spin. Implication: Making or breaking National Health.

Combatting corruption: the role of conscience Law and beyond: the role of Conscience Whistleblowing

CONSCIENCE

Defining Conscience To follow one’s conscience – one’s formed and informed

conscience – is the core of moral activity. Conscience as ‘the inner voice of ethics, of right and wrong, of good

and evil. We can think of it as our built-in guidance system in the search for the good life. It is the uncomfortable feeling we get, or should get, when we lie, speak cruelly, cheat on somebody…or do any of the many things we know are wrong. It is also the warm and noble feeling that comes when we do the right thing…especially when it costs us something to do these things.”(Prozesky)

Aquinas: a philosopher and a theologian says…. A central theme in Aquinas’ thought is human freedom – liberum arbitrium, properly

translated, argues Brian Davies not as free will but as freedom to choose. This is what distinguishes us from all other creatures. People, argues Aquinas, “are free to make decisions. Otherwise counsels, precepts, prohibitions, rewards and punishment would all be pointless”(ST Ia, q83, a1). Moreover human actions are motivated by reasons or intentions, based on their ability to interpret the world in all its complexity. This is precisely why we can say we are ethical beings.

As Aquinas puts it: “Free decision spells self-determination because people, by their free decisions, move

themselves to action. Freedom does not require that a thing is its own first cause, just as in order to be the cause of something else a thing does not have to be its first cause. God is the first cause on which both natural and free agents depend. And, just as his initiative does not prevent natural causes from being natural, so it does not prevent voluntary actions from being voluntary,but, rather,makes it be precisely this. For God works in each according to its nature” (ST Ia, q83, a1).

From this it seems obvious that human freedom to be truly free must entail following conscience. . Brian Davies, Aquinas: An Introduction (London: Continuum, 2002), 129-130.

…and… Conscience is ‘the whole person’s commitment to value and the

judgment one makes in light of who one ought to be and what one ought to do and not do.’ It can be understood psychologically as ‘decisions or judgments based on an internal sense of oughtness (how I should live and what I must do) that is the result of a life history that incorporates who I am, who I am becoming, and who I desire to be.’ (Shelton). Conscience is both the inwardly-directed and ongoing search for my deepest, most authentic self (Fuchs, Haring) – a self which includes a fundamental moral option, towards good or evil, that I believe cannot be fully known this side of ‘eternity’ – and outwardly directed towards making the right decisions, in short doing the good.

. This notion of a fundamental option is a point of disagreement between the two greatest 20th century Catholic moral theologians, Josef Fuchs and Bernard Häring. The latter believes you can know your fundamental option; I agree here with Fuchs, that you can’t.

Foundational Moral Experience (FME) The ‘embodiment of the FME’ (Maguire 2010:226)

Conscious but springs from subconscious R and L brain, moral K springs from limbic system & neocortex

To say ‘I know’ is complex:partial Element of intuition

Formed amid chaotic vicissitudes of life We are all affected by history, attitudes, pressures to good and bad

C is rooted in feeling, emotion, but should be informed by prudence ( ‘love discerning well’ – Augustine)

‘All forms of life bear witness to the struggles that are the price of survival…Conscience will never be pure’ (Maguire: 226)

But it’s all just superego…. Now some might object that conscience is nothing more than a philosophical or

theological version of the superego, the ‘inner policeman’ that social, cultural and emotional factors may impose on us. From this perspective, then, we are not exercising our freedom at all. We must distinguish conscience from superego if we are to proceed further. Freud and Ferenczi see humans at birth as a bundle of primitive and instinctual drives, needs and reactions. As the person grows and interacts with the outer world this primal consciousness – the id – develops a kind of protective ‘outer layer’, the ego, that “receives stimuli from the outside world and registers them, and it protects itself against the id’s breaking through and ‘making a mess of things’…[The ego] deals with reality and masters it.” Persons grow through interaction with others, with parents, friends, society and culture. Children interact with authority figures who impose ‘do’s’ and ‘don’ts’ on them, which they internalize. Zilboorg reminds us: “Thus, gradually, unconsciously, many social, cultural demands become a part of the ego,

and this particular part of the ego demands of our whole ego that we do the right thing. It stands there with its ‘don’ts’ and ‘do’s’ and ‘be careful’ and ‘you ought to be ashamed of yourself ’ and ‘go to sleep’ and ‘don’t talk so much or so loud’. This demanding part of the ego stands over the whole ego. It is the superego.” Gregory Zilboorg, ‘Superego and Conscience’, Conscience: Theological and Psychological Perspectives, edited by C Ellis Nelson, New York: Newman Press, 1973, p.216.

In reply to Dr Freud….(Glaser 1973)

SUPEREGO CONSCIENCE 1. Commands us out of fear or desire for

approval 2. Inwardly turned towards self-value and

desire to be loved 3. Static, repeating a prior command 4. Authority-oriented, following orders 5. Individual acts prioritized 6. Focus on past – way things have

always been done 7. Fear of punishment and reconciliation

is through punishment for transgressions.

8. Quick and easy process of guilt to self-renewal – confess to authority

9. Disproportionate guilt between issue and action, stress on disobeying authority

1. Responds to an invitation to love

2. Outwardly turned in openness to the other

3. Dynamic, seeking new ways to respond 4. Value-oriented, seeking preferential value/s

whether authority likes it or not 5. Larger processes and patterns prioritised 6. Focus on future – the person one ought to

become 7. Focus on reparation through structuring the

future, making good on the past 8. Self-renewal is a process focusing on human

development

9. Proportionate guilt based on knowledge, freedom, emotional stability and the issue at stake

Conscience is, in short, a capacity, a process and a judgment: It is a capacity in that it is our fundamental ability to discern good from

evil, right actions from wrong actions. Almost all of us have this capacity, though there are a few folk who don’t – people with serious learning disabilities, the criminally insane, or people who are so emotionally traumatised that they are incapable of proceeding.

It is a process whereby we discover for ourselves what is right and wrong, through familiarising ourselves with the facts of a problem, how other people – including moral authorities of various kinds – see the problem and the course of action that should be taken, considering what we hold to be the key values at stake, for ourselves and for those around us.

It is also a judgment – based on the process – we reach on how we are to act. Quite often there is a consensus among individuals or groups. This should be a good sign – that we have all reached agreement; but we must also recognise that some people may disagree and propose an alternative course of action.

CORRUPTION

Contemporary definitions of corruption are a late eighteenth century innovation. If we use Montesquieu to stand in for the ‘classical’ period then corruption, on his terms, is a feature of any polity (democratic, aristocratic, monarchic or despotic) when its leaders fail to act on the basis of its core or foundational principles. Jumping to the present, and on these terms, we might say that a person or a party or a government is corrupt in South Africa to the extent that he/she/it behaves in a way that undermines the principles of the Constitution. (Chipkin 2012)

C = M + D - A

Corruption =

Monopoly power plus

Discretion by officials, minus

Accountability.

If someone has monopoly power over a good or service and has the discretion to decide whether someone gets that good or service or how much a person receives, and there is no accountability whereby others can see what that person is deciding, then we will tend to find corruption.

True whether we are in the public sector or the private, whether we are in a poor country or a rich one, whether we are in Beira or Berlin or Beirut.

So corruption is a matter of… Power

Patronage

Self-interest

Opportunity

Lack of oversight

Ethics?

Examples of Corruption Bribes that undermine due process (e.g. traffic cops,

hush money, speed money)

Patronage (e.g. tenders based on family or political connections)

Old school/college ties (“So did your father study here?”)

Cover-ups to protect insiders (‘pass the paedophile’)

IS CORRUPTION ALWAYS BAD? YES NO

Undermines the law

Undermines trust in institutions

Undermines TRUST in society

Enriches the powerful

Empowers the unscrupulous.

It undermines equality.

It speeds things up

It subverts idiotic laws

It empowers people

Its about loyalty to one’s own – comrade, clan, kinfolk.

It’s a Western thing.

Anyway its our turn to eat!

Does it undermine equality? LEAST CORRUPT COUNTRIES FEATURES

New Zealand

Denmark

Sweden

Norway

Netherlands

Singapore

Germany

Rule of Law.

Welfare net.

Efficient bureaucracy.

Education, health care.

Liberal/libertarian. [Except Singapore!!!].

Egalitarian.

Prosperous.

POWER MODELS

Authoritarian modes of leadership

Democratic instability Religious intolerance Patriarchal Bureaucratic Communal Caste Class Race

Relation to Power…Preliminary Observations

Social & Moral Costs SOCIAL MORAL

Weakened public service delivery; Loss of faith in the public service;

Increased costs of public service without improved quality of service;

Public disillusionment with government;

Growth of power among criminal elites;

Disillusionment with democracy as such;

Potential rise of populist demagoguery, often anti-democratic in nature.

Loss of trust in government;

Belief that crime pays so long as you have the right connections;

Disrespect for rule of law – its being flaunted by its legislators and upholders after all;

Climate of mistrust of fellow citizens – loss of sense of solidarity;

Survivalist mentality that works against communal virtue and sense of the common good;

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A South African Spin...Notions of State (1) Chipkin (2012): Central to the liberal conception of the state is the idea that the

bureaucracy can be organised in such a way that it: • operates neutrally vis-à-vis any social class or group of

individuals and • can become a reliable instrument for whoever controls

parliament (the legislature) and government (the executive).

On these terms corruption refers to: • any kind of bias or partisanship that bureaucrats practise

either towards themselves (Weber’s major concern) or to a social class or group (Burke’s objection),

• any deviation in the work of bureaucrats from the policies and programmes of the government of the day.

...Notions of State (2) Leninist Idea of the State:

“Should the state be considered an essentially neutral apparatus that merely needs to be ‘captured’ by a working-class socialist political party for it to serve the interests of the working class, or is the apparatus of the state in a capitalist society a distinctively capitalist apparatus that cannot possibly be ‘used’ by the working class, and as a result, must be destroyed and replaced by a radically different form of the state?” (Wright, in Chipkin 2012)

Notion of partisanship in government....

Relationship of Party and Government...

Excursus: China McGregor (2010): The Chinese Communist Party –

control over Business, Government, Law etc. Rapid economic growth but with high levels of corruption...

Guanxi : patronage...

Question: Whose interests are ultimately served by such a (capitalist) monopoly?

The South African State One Party Dominant State Party as Revolutionary Movement

Chipkin (2012): Consider the following extract from the ANC’s State, Transformation and Property Relations document of 1998. In language reminiscent of Lenin’s, the document declares: “We [the National Liberation Movement] have inherited a state which was illegitimate

and structured to serve the interests of a white minority. […] To attain all these and other objectives, it became the seedbed of corruption and criminal activity both within the country and abroad. […] The NLM cannot therefore lay hands on the apartheid state machinery and hope to use it to realise its aims. The apartheid state has to be destroyed in a process of fundamental transformation. The new state should be, by definition, the antithesis of the apartheid state”

Party as Government, representative of people, or the new economic ruling class?

Chipkin (2012): “While both liberal and NDR notions of corruption invoke a measure of ‘misuse’ of public funds, any resemblance between them is only superficial. In the liberal definition, ‘misuse’ refers to a legal or public service standard. In the other, ‘misuse’ implies a standard determined in and by the National Liberation Movement.”

A CLAIM OF CONSCIENCE: WE NEED A NATIONAL HEALTH SERVICE Whether from perspective of

Constitution

Redress

Reconciliation

Common good

Economic growth

Principles of Health Care Ethics

consequentialism

Possibility of dissenting conscience – erroneous but formed/informed conscience should be respected...

BUT... Potential for corruption in NH service

Favouritism – the Orwell principle

Tenders – bribery + patronage

Advancements – patronage

Theft – without proper laws in place

Experience

Arms Deal

Contracts

Misappropriation of funds

AREA TYPE RESULT

Construction Bribes Infrastructural mess

Purchases Bribes, tender rigging, unethical drug promo High costs, dodgy or inappropriate goods, inadequate funds left over

Distribution Theft (personal use), diversion for resale, sale of free drugs etc

Lower utilization, patients improper treatment/ exploited, interruption or incomplete treatments

Regulation of quality Speed bribes, cover-ups, manipulation of accreditation or procedures

Bad drugs, spread of diseases, malpractice

Education of health pros Bribes to med school, cheating, political influence

Incompetents, loss of faith in system

Med Research Bogus trials, consent issues Violation of participant rights, bad research

Service Provision Public used for private, dodgy private referrals, absenteeism, informal payments, theft

Public loses, patients abandoned, reduced services, impoverished patients, care quality drops, loss of faith in government

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and... Endemic Epidemic Isolated

GRAND CORRUPTION

Widespread bureaucratic corruption

Widespread prescription fraud

Isolated instances of any of corruption types

PETTY CORRUPTION

Small & routine payment to doctors

Petty theft

MISCONDUCT/ SURVIVAL STRATEGIES

Cost contributions for medical supplies

Promoting better access

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WHAT IS TO BE DONE? Law

Excellent laws in place

Independent policing need to apply the law

Transparency

Whistle blowing – where personal conscience is sorely tested....

POTENTIAL COSTS OF WHISTLEBLOWING... Undermines self interest

Harassment

Dismissal

Intimidation

Elimination

MOVING BEYOND ‘THE LAW’ YES, the laws in SA exist

Protected Disclosures Act (No. 26), 2000

Public Protector etc

YES, the laws act in SA (sometimes)

NO, you are not always rewarded

YES, you can get hurt

NO, you will probably not get punished for failing to blow the whistle

YES, it takes a lot of moral courage...

BIBLIOGRAPHY Aquinas, T (nd), Summa Theologica [various editions] Chipkin, I (2012), “Corruption and the State”, Focus No. 67, 10-16. Davies, B (2002) Aquinas: An Introduction (London: Continuum) Glaser, R (1973), “Conscience and Superego” Conscience: Theological and

Psychological Perspectives, edited by C Ellis Nelson, (New York: Newman Press)

Maguire, D C (2010), Ethics: A Complete Method for Moral Choice (Minneapolis: Fortress)

McGregor, R (2010), The Party: The Secret World of China’s Communist Rulers (London: Penguin).

Shelton, C M (2000), Achieving Moral Health (New York: Crossroad) Prozesky, M (2007), Conscience: Ethical Intelligence for Global Well-being

(Pietermaritzburg: UKZN Press) Zilboorg, G (1973) ‘Superego and Conscience’, Conscience: Theological and

Psychological Perspectives, edited by C Ellis Nelson, (New York: Newman Press)