Clinical Ethics: II. Clinical Ethics Consultation

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II. CLINICAL ETHICS CONSULTATION

The dictionary defines consulting as "providing professional or expert advice." A clinical ethics consultant is defined here as a person who upon request provides expert advice to identify, analyze, and help resolve ethical questions or dilemmas that arise in the care of patients. Although the ethics consultant also may provide ethics education and help formulate policy, the bedside role is central to the definition of an ethics consultant (Jonsen).

In the United States, clinical ethics consultation began in some academic medical centers in the late 1960s and early 1970s (La Puma and Schiedermayer), and was given great impetus by the development of hospital ethics committees in the late 1970s and 1980s. During this period the rapid growth of medical technology confronted critically ill patients, their families, and health professionals with difficult ethical choices. At the same time, the traditional authority of the physician was challenged not only by the patient-rights and consumer-rights movements, but also by changes in the way medical care was delivered in tertiary-care hospitals, where patients were often treated by teams consisting of physicians, nurses, social workers, medical technicians, and others. Decisions about forgoing life-sustaining treatment for incompetent adults or premature infants were being made in a legal vacuum often filled by the fears of civil and even criminal litigation. In this atmosphere there was considerable uncertainty about the optimum process for resolving difficult ethical decisions without resorting to the public arena of the courts.

In its 1976 Quinlan decision, the New Jersey Supreme Court tentatively suggested the use of ethics committees to assist persons who faced difficult end-of-life decisions. In the early 1980s, the federal "Baby Doe" regulations spurred hospitals to develop internal mechanisms for dealing with decision making for severely handicapped infants. In 1983 the U.S. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research endorsed the notion of shared decision making between patients and physicians. It suggested consultation with an ethics committee as a possible means for resolving disputes that arose in the clinical setting, but noted that the efficacy of such consultation had not been demonstrated(U.S. President's Commission).

In 1985 the National Institutes of Health and the University of California at San Francisco cosponsored a conference in Bethesda, Maryland, for persons designated by their institutions as ethics consultants. The conference was attended by fifty-three invitees, and fifty additional persons expressed interest in attending a future meeting of this group (Fletcher, 1986). By 1987 the Society for Bioethics Consultation was formed for the support and continuing education of clinical ethics consultants. In 1992 the Joint Commission for the Accreditation of Health Care Organizations (JCAHO) published a requirement for healthcare institution accreditation that all healthcare institutions must have in place a mechanism for resolving disputes concerning end-of-life decisions.

Structures of Clinical Ethics Consultation

Clinical ethics case consultation is provided in several ways: by an ethics consultative group as a whole (such as an ethics committee), by a subgroup of the consultative group, or by individual consultants. Clinical ethics case consultation by a large group has the potential for having diffused accountability and being depersonalized, bureaucratic, insensitive, closed-ended, and removed from the clinical setting. But it has the advantage of providing multiple perspectives and opportunities for queries from persons of diverse backgrounds, and for correcting the potential for narrow or idiosyncratic views of an individual consultant.

In contrast, clinical ethics case consultation by an individual consultant is an open-ended process that can extend over a period of time, and permit ongoing discussion and pursuit of issues that require clarification. The individual consultant can decide what information is necessary and obtain it firsthand. Interviews with patients, families, and health professionals can be scheduled flexibly and conducted in private settings more conducive to diminishing apprehension, establishing trust, sharing information, and allowing the kind of give-and-take that is so important to exploring emotionally powerful and intensely personal issues. Furthermore, an individual ethics consultant is more visible and accountable than a committee (Agich and Youngner). For these reasons, many ethics consultative groups and healthcare professionals have found the individual clinical ethics consultant more effective than the committee. Many ethics consultative groups have created a middle ground that involves small teams who serve as an extension of the ethics consultation group or ethics committee.

Some see an advantage to a relationship between the ethics consultant and an ethics consultative group or committee because the large group regularly can review the individual consultant's activities. This arrangement provides peer review and quality assurance for the consultant as well as education for the larger group or committee. The ethics consultant or consultation team can ask the entire group to become involved in particularly controversial or complex cases.

The Role of the Clinical Ethics Consultant

Despite the growing interest in and practice of clinical ethics consultation, important questions remain about its purpose, requisite skills, methods, specific responsibilities, evaluation, and effect. Unlike traditional medical consultants, clinical ethics consultants are not subject to widely accepted standards and procedures for training, credentialing, maintaining accountability, charging fees, obtaining informed consent, or providing liability coverage (Purtilo; Agich).

While the role of the ethics consultant generally has been pragmatic, that is, to provide practical assistance with actual patient-care decisions (Cranford; Glover et al.; Siegler and Singer; Fletcher, 1986), there has been little consensus about how this role should be implemented. For example, although some see the ethics consultant, like the traditional medical consultant, as an expert who uses specific skills and knowledge to help "answer" ethical questions, exactly what constitutes the appropriate skills and knowledge base is a matter of debate. Does the expertise come from the wisdom of practical clinical experience (La Puma et al.), or is it derived from a knowledge of moral theory and ethical principles?

Others see the clinical ethics consultant's role not so much as an expert but as someone who facilitates decisions in a "community of reflective persons" (Glover et al., p. 24). This approach stresses the importance of involving all persons connected with the case—the patient, family members, physicians, nurses, medical students and residents, social workers, friends, and clergy. In this view, a shared decision-making process should extend beyond the physician–patient dyad so that a greater range of personal values and interests can be considered. This view is less compatible with the traditional model of medical consultation, which focuses more narrowly on the physician as decision maker.

Some commentators have worried that the individual ethics consultant, the ethics consultative group, or the ethics committee will act as moral "police" or "God Squad" (Siegler and Singer, p. 759), and erode the decision-making authority of the physician. Troyen Brennan has voiced a more subtle concern: that by turning increasingly to ethics consultants and ethics committees, we "run the risk of forcing the ethics of the caring relationship to the periphery of clinical practice as something that is best left to experts" (Brennan, p. 4). Furthermore, the role of the ethics consultant may be confused with other institutional roles, such as risk management, peer review, quality assurance, or resource allocation. Taking on these roles could create a conflict of interest for the ethics consultant.

Reasons for Ethics Consultation

Ethics consultations are requested for a variety of reasons that include prevention of litigation; mediation of disputes and resolution of conflicts between or among the patient, healthcare professional, and family; confirmation of or challenges to decisions already made; emotional support for difficult decisions; and identification of morally acceptable alternatives. For example, ethics consultation may be requested because physicians and family members disagree about how aggressively to treat a dying, incompetent cancer patient, or because there is difficulty interpreting a patient's living will. Ethics consultants may be called because there is disagreement about the acceptability of a family request to stop tube feeding an Alzheimer patient who refuses to eat. Requests for ethics consultation may come because nurses or house officers are concerned that competent patients are being left out of the decision-making process.

Goals of Ethics Consultation

There is disagreement about the appropriate goals of ethics consultation. John La Puma and E. Rush Priest have suggested that ethics consultations's primary goal should be "to effect ethical outcomes in particular cases and to teach physicians to construct their own frameworks for ethical decisions making" (La Puma and Priest, p. 17). Patient-rights advocates disagree. They argue that the primary goal of ethics consultation is the promotion of patient autonomy by encouraging shared decision making (Tulsky and Lo). John Fletcher takes a broader view. He identifies four goals of ethics consultation: (1) to protect and enhance shared decision making in the resolution of ethical problems; (2) to prevent poor outcomes; (3) to increase knowledge of clinical ethics; and (4) to increase knowledge of self and others through participation in resolving conflicts (Fletcher, 1992).

Contributions to the Practice of Ethics Consultation

While the general purpose of clinical ethics consultation is to help resolve ethical questions or dilemmas in patient care, persons who perform ethics consultation come from diverse professional backgrounds and do not share the same problem-solving methods or theoretical assumptions. This diversity has left its stamp on the way clinical ethics consultation is performed, and has profound implications not only for the practice of clinical ethics consultation but also for the training of its practitioners.

Despite this diversity, a common ground can be seen in the shared goal of identifying an ethically supportable solution to a clinical ethical question or dilemma, and in a recognition that the process of arriving at a solution requires knowledge of law, ethics, medicine, psychosocial issues, and at times, religion.

The legal tradition has influenced clinical ethics consultation by placing emphasis on rights and on formal mechanisms of decision making and arbitration, such as due process. The protection and nurturing of individual rights are central to this style (Wolf). Strict adherence to this style, however, may encourage adversarial rather than collaborative or nurturing relationships between patients and healthcare professionals (Agich and Youngner).

The medical tradition has contributed methods, assumptions, and traditions of clinical practice: a combination of technical knowledge and clinical experience (La Puma and Toulmin). Some argue that physicians are best suited to provide clinical ethics consultation because (1) their advice will be easily accepted by their medical colleagues, because they have clinical experience and speak the same language; and (2) only physicians can understand the ethos of physician-patient relationships. Critics caution that because they are "insiders, " physicians may promote the values of medicine rather than those of their patients or the larger community. They argue that the ethics consultant should serve as a bridge between medical and other values, and cannot function properly from a position entirely within medicine (Glover et al.; Churchill).

Moral philosophy has offered three major approaches to clinical ethics consultation. The first is principle-based ethics, which argues that the answer to a given ethical question or dilemma may be discovered by applying the correct ethical theory (e.g., utilitarianism) or principle (e.g., autonomy) to the case. The second is virtue ethics, which emphasizes that the possession of certain virtues (e.g., honesty, loyalty, compassion) is essential to sound ethical decision making. The third is a case-based or casuistic ethic, which holds that by examining the particulars of a given case and comparing them with similar cases, a moral maxim that applies to the case can be discovered. An advantage of casuistry is that it sues a decision-making method already employed by clinicians (Jonsen and Toulmin). Casuistry relies upon teachable medical moral maxims that build upon experience. Because casuistry is not principle-based, it has been criticized as "situational, " that is, pragmatically driven to solve individual problems without reference to a broader moral framework.

While principle-based clinical ethics reasoning has the advantage of providing a consistent moral reference point, its principles are necessarily abstract, often conflict with each other, and may create a rigid paradigm that is insensitive to differences in specific cases.

Theology and religion contribute to clinical ethics consultation by recognizing that specific religious positions may either facilitate the resolution of an ethical question or contribute to its intensity. For example, the Jehovah's Witness position on blood transfusions can create serious ethical dilemmas in the case of a Jehovah's Witness patient who is in urgent need of extensive, lifesaving surgery but refuses blood. One of the disadvantages of this perspective is that many physicians are suspicious of or even hostile to religious or theological interpretations of medical problems. However, insight into the religious morality of patients, family members, and healthcare professionals is useful in establishing communication and reaching understanding among physicians, patients, and family members.

Consultation liaison psychiatry and clinical psychology have influenced clinical ethics consultation by addressing dynamic and interpersonal elements of clinical ethics cases. This style involves using insight into the motivations and values of those involved in the ethics case to resolve conflicts among decision makers. The goal is to produce a consensus or compromise solution rather than to evoke rights language, ethical principles, or religious codes. A disadvantage of this approach is that a compromise solution is not always a just one. Its strength is that it skillfully manages confrontation and addresses the emotional needs of the participants.

Knowledge and Skills Needed for Ethics Consultation

While there is not unanimity about how rigorously schooled in specific academic disciplines or how proficient in specific skills the consultant should be, there is general agreement about the kind of skills, knowledge, and personal qualities ethics consultants require. These include knowledge of ethical language and ethical theory; skills of ethical analysis and reflective moral judgment; knowledge of clinical medicine (e.g., medical terminology, the natural history of disease and its treatment); knowledge of and familiarity with hospital structure, sociology, and politics; knowledge of and familiarity with the professional ethos of physicians and nurses; knowledge of the law and legal reasoning; knowledge of psychological and social theories of behavior; communication and teaching skills; personal qualities such as the ability to establish rapport, empathy, and compassion; and professional attributes such as dedication, ability to maintain confidentiality, and comfort with cultural and ethical diversity.

Access to Ethics Consultation

Who should be able to request an ethics consultation? The answer to this question has political as well as moral implications. On the one hand, if only physicians have access to ethics consultation, many important ethical issues may never be examined (Tulsky and Lo). On the other hand, permitting patients, families, and other health professionals to request ethics consultation, especially without the physician's concurrence, might discourage more direct communication, disrupt physician-patient relationships, or under-mine physician authority. The last possibility would be most threatening to authoritarian-minded physicians and very likely would challenge the traditional power structure of many hospitals. This may explain the gap between the argument in the literature for the ideal—that patients, families, and nurses should be able to request an ethics consultation—and the impression that many institutions do not permit, and almost none actively encourage, patient, family, or other health professional requests for ethics consultation.

The ability to ask for consultation is only one question concerning patient and family access to and control over the consultation process. Other questions include whether the patient or family should have authority to (1) call a consultation when the physician refuses to do so; (2) be informed routinely when consultations are requested by physicians;(3) veto physician-initiated consultation requests; (4) participate in all ethics consultations if they wish; and (5) receive verbal or written information about the consultant's findings and recommendations. Some argue that an insistence on a rights-based approach to these questions would doom ethics consultation services to failure in modern hospitals because of political considerations (Agich and Youngner).

Standards and Evaluation

The fact that standards and methods for evaluating clinical ethics consultation are not established comes as no surprise. The infancy of clinical ethics consultation and the disagreement about its goals, as well as the diverse academic and professional backgrounds of its practitioners, account for this lack. Most studies to date have employed physician satisfaction and usage as outcome measures. By this standard, ethics consultations have been judged to be helpful. Critics have pointed out, however, that by not including patient and surrogate satisfaction and reactions of house staff and nurses, an incomplete and perhaps inaccurate picture of ethics consultation is painted (Tulsky and Lo). For example, "it would be hard to argue that it is desirable for an ethics consultant to reject the choices of a competent and informed patient, even if the attending physician expresses satisfaction with such a consultation" (Tulsky and Lo, p. 591). More objective measures like changes in physician behavior, reduction in use of limited resources (Kanoti et al.), and decreased litigation are attractive, but could confuse matters if these goals were achieved at the expense of more traditional values, such as patient autonomy and well-being.

Credentialing and Accreditation

As ethics consultation becomes more widespread and perceived as part of the standard of medical care, society will hold accountable its practitioners and the institutions that employ them. Individual institutions and national accrediting bodies, such as the Joint Commission for the Accreditation of Health Care Organizations, will undoubtedly become more concerned with setting standards for clinical ethics consultation: consultation through traditional professional methods, such as standardized education and training, accreditation of training programs, and credentialing of ethics consultants. This process will be a major challenge to an interdisciplinary field that has yet to agree on its goals and how to evaluate them.

Fees

By and large, ethics consultants have not charged patients or third-party payers for their services. This may be explained by at least two factors. First, the efficacy of ethics consultations has not been clearly demonstrated; and second, ethics consultations are called as frequently to assist health professionals as they are to help patients. Generally, ethics consultants have been paid by the institutions where they practice, either directly for their consultations or indirectly, as part of their overall responsibility in directing ethics programs or committees.

As our healthcare system becomes increasingly constrained by economic factors, healthcare institutions may find it more difficult to support clinical ethics consultation. This will put pressure on ethics consultants to charge patients or third-party payers or to demonstrate that their activities save money by decreasing litigation or reducing resource consumption.

Conclusion

Clinical ethics consultation arose in the United States in the latter half of the twentieth century amid the moral and legal uncertainty spawned by the rapid expansion of choices produced by medical advances, the emergence of the tertiary-care medical center, and the individual-rights movement that challenged traditional authority structures. Although it holds great promise, clinical ethics consultation remains a nascent profession. Many of the theoretical and practical questions about its goals, training, evaluation, accountability, and support remain unanswered. Nonetheless, clinical ethics consultation is growing and even flourishing. As the U.S. health system evolves over the coming years, the role and place of clinical ethics consultation in the healthcare system certainly will be addressed.

george a. kanoti

stuart youngner(1995)

bibliography revised

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