Volume 10, Number 1, Spring-Summer 2003  

"Fiduciary Ethics" Edited by Robert Paul Churchill, Stiv Fleishman, Joe Frank Jones III No Abstract

 

Duties of Gratitude Samuel V. Bruton This paper is a response to a recent article by Christopher Wellman in which Wellman argues that gratitude is better understood as a virtue rather than a source of moral obligations. First, I offer several examples intended to dispute his claim that gratitude does not impose duties. Second, I provide my own reasons for thinking that deontic notions alone cannot capture the moral significance of gratitude. Wellman’s mistake is attributable to an overly narrow conception of duty that his argument presupposes. Finally, I consider the implications of my analysis for fiduciary ethics generally given the indeterminacy of the principle of gratitude.

 

Trust in Strangers, Trust in Friends Jessica Miller Recent literature on trust commonly contains the claim that the trust which characterizes intimate relationships is a different phenomenon altogether from the trust that characterizes professional and other sorts of non-intimate relationships. In this paper I argue that while there are important differences among kinds of trust, an invidious distinction between trust in strangers and trust in friends is not only unwarranted but it obscures the fundamentally affective and relational base of all forms of interpersonal trust. In this essay I construct an account of interpersonal trust, which recognizes the similarities that pervade its different forms. Without such a complex approach, we lose theoretical sight not only of key features of trust, but of the relationship of trust to significant dimensions of human existence.

 

Duties of Neighbors: Patriotism, Projects and Fiduciary Bonds of Nearness Thomas D. Kennedy A primary fiduciary bond, rarely examined, is that of neighbor. I distinguish this bond from others that may overlap it, those of fellow citizen or compatriot. I argue that the nature of moral identity and the nature of moral formation require moral agents to acknowledge the fiduciary duties of neighbor.

 

Representative Democracy and the Public Trust Evelyn Keyes, J.D., PHd. The “Idea of Intrinsic Equality” is central to democracy, but in what respects are persons intrinsically equal, and what requirements, if any, does their equality impose on a process for making collective decisions? This paper seeks to answer that question with respect to our own representative democracy. It examines three theories of collective decision-making that arguably characterize the democratic process under the United States Constitution. It concludes that, while all preserve the Idea of Intrinsic Equality in the election of representatives and legislative voting, only the third theory, Democratic Egalitarianism, which treats all like interests alike in promulgating laws and preserves the fundamental liberties of all, both preserves the Idea of Intrinsic Equality throughout the legislative process and fulfills the fiduciary mandate that legislators legislate in the interests of the people.

 

Democracy, Trust and the Problem of ‘Dirty Hands’ Stephen De Wuze ‘Dirty hands’ scenarios require politicians to commit moral violations to achieve worthwhile goals. To mitigate the harm done to the fiduciary relationship underlying a democratic society, I argue for the adoption of two procedures: retrospective accountability and special oversight committees. I also offer three criteria for a much-required political ethic.

 

Ethics in the Board Room: Contracts or Fiduciary Relationships? Patricia C. Flynn Most contemporary discussion of institutional ethics take contractual rather than fiduciary relations as the model for describing moral responsibilities, leaving institutional boards with few resources to support and critique their moral behavior.  I argue that institutional fiduciary relationships cannot be characterized as contracts, either in fact or function.  Each form of relationship privileges a different set of behaviors and values that are far from interchangeable.

 

Fiduciary Duty and Socially Responsible Investing Johanna A. Klaassen & George R. Gay Most discussions of fiduciary duty focus on medical decision-making, but that is not the only context in which the concept is important.  Investment advisers have fiduciary duties to their clients: in this essay, we address those duties.  Many advisers refuse to help their clients with 'socially responsible' investment plans, for a variety of reasons, among which are fiduciary concerns.  We argue that the reasons generally given not to pursue a religious, environmental, or social investment strategy are mistaken, and, most importantly, that an investment adviser's fiduciary duties may be met while providing such alternatives to clients.

 

Conflicts of Interest in the Privatization of Child Welfare Martin G. Leever Due to the enormous disparity of power in the child welfare professional-client relationship, a high level of trust is necessary for this relationship to achieve its intended benefits, including protecting, caring for, terminating parental rights to, and finding appropriate adoptive homes for, abused and neglected children. This paper first defines conflicts of interest as necessarily including the exercise of judgment, and then argues that contractual relationships between private child welfare agencies and public departments of child welfare often betray their fiduciary responsibilities through conflicts of interest inherent in these contracts, particularly as regarding incentives for and against finding permanent homes for abused and neglected children. Finally, I propose an evidence-based strategy to ameliorate conflicts of interest when making permanent placement decisions for foster children.

 

Open Adoption and the Ethics of Disclosure to Children Sarah-Vaughan Brakman A sustained analysis of the moral permissibility of withholding or of the obligation to disclose information to an adopted child is lacking in the literature on parental duties, disclosures, and adoption. These two sets of questions raise issues that appear to fall within the parameters of the concepts of stewardship and gratitude. I propose that adoptive parents are the stewards of the information they receive concerning their child and I show how stewardship and gratitude can aid adoptive parents as they negotiate the terrain of disclosure.

 

Fiduciary Paradox and Psychotherapy Dennis E. Skocz In the psychotherapist-patient relationship, the therapist-fiduciary must deal with ambiguity, assume risks, and make decisions without final appeal to psychiatric theory. Ambiguity regarding patient autonomy poses treatment paradoxes. Caregiving that aims at autonomy can end up undermining it. Additionally, pursuit of autonomy can put the patient’s well-being at risk.

 

Autonomy Gone Mad Alfred I. Tauber Medicine's fundamental moral philosophy is the responsibility of caring for the ill, yet beneficence is not under the province of the law.  Indeed, fiduciary responsibilities of doctors are limited.  Instead, American law is preoccupied with protecting patient rights under the precept of patient autonomy, and contemporary medical ethics is dominated by these concerns.  The extrapolation of autonomy rights from the political and judicial culture to medicine is, under ordinary circumstance, non-problematic.  However, in instances of conflict, the dominance of autonomy reveals a hierarch of values determining patient care.  To illustrate the moral calculus of balancing competing principles, the ethical issues of involuntary treatment of psychotic patients are considered, and alternatives to the moral reasoning currently guiding the care of these individuals are offered to better solve the dilemma of respecting patient autonomy while still fulfilling the claims of physician responsibility.

 

Fiduciary Decision-Making Using Comfort Care Katharine Kolcaba & Raymond J. Kolcaba Ethical fiduciaries in health care lack sufficient criteria for making ethical decisions. The authors introduce criteria from The Theory of Comfort as developed in the nursing literature. According to the theory, comfort is based in observation, measurable, and represents a nearly universal human need and interest. Use of the theory is illustrated through three case studies.

 

Trust, Covert Surveillance and Fiduciary Obligations Wayne Vaught, Phd. Health professionals, by agreeing to provide care, accept a fiduciary role that entails an obligation to preserve trust. We trust health professionals to be competent, to promote patient interests, and to properly utilize their discretionary power. While some health professionals argue that such activities as secretly screening for drugs or sexually transmitted diseases are necessary to fulfill their fiduciary obligations, these may actually constitute a breach of trust. In this paper, I argue that, in the specific case of Munchausen’s Syndrome by Proxy, covert surveillance is ethically justifiable and does not constitute a breach of trust and an abuse of the fiduciary relationship.

 

Volume 10, Number 2, Fall-Winter 2003