Hidden Fault Lines in the Bedrock: A Critical Examination of Surrogate Decision-Making Standards in Ethics Consultation.

AbstractClinical ethicists are routinely consulted in cases that involve conflicts and uncertainties related to surrogate decision-making for incapacitated patients. To navigate these cases, we invoke a canonical ethical-legal hierarchy of decision-making standards: the patient's known wishes, substituted judgment, and best interest. Despite the routine application of this hierarchy, however, critical scholarly literature alleges that these standards fail to capture patients' preferences and surrogates' behaviors. Moreover, the extent to which these critiques are incorporated into consultant practices is unclear. In this article I thus explore whether, and how, existing critiques of the hierarchy affect the application of these standards during ethics consults. After discussing four critiques of the hierarchy, I examine how two prominent published ethics consultation methodologies-bioethics mediation and CASES-incorporate these critiques differently. I then argue that while both methodologies explicitly endorse the same hierarchy, the varying degrees to which these four criticisms are incorporated into the prescribed consultation process could produce different applications of the same standard. I demonstrate with a case study how an ethics consultant following either methodology might produce two substantively different recommendations despite using the same substituted judgment standard. I conclude that while this heterogeneity of application should not dismantle the hierarchy's status as field-wide canon, it complicates projects of professional ethics consultation consensus building.

The "Ought-Is" Problem: An Implementation Science Framework for Translating Ethical Norms Into Practice.

We argue that once a normative claim is developed, there is an imperative to effect changes based on this norm. As such, ethicists should adopt an "implementation mindset" when formulating norms, and collaborate with others who have the expertise needed to implement policies and practices. To guide this translation of norms into practice, we propose a framework that incorporates implementation science into ethics. Implementation science is a discipline dedicated to supporting the sustained enactment of interventions. We further argue that implementation principles should be integrated into the development of specific normative claims as well as the enactment of these norms. Ethicists formulating a specific norm should consider whether that norm can feasibly be enacted because the resultant specific norm will directly affect the types of interventions subsequently developed. To inform this argument, we will describe the fundamental principles of implementation science, using informed consent to research participation as an illustration.

What the HEC-C? An Analysis of the Healthcare Ethics Consultant-Certified Program: One Year in.

Efforts to professionalize the field of bioethics have led to the development of the Healthcare Ethics Consultant-Certified (HEC-C) Program intended to credential practicing healthcare ethics consultants (HCECs). Our team of professional ethicists participated in the inaugural process to support the professionalization efforts and inform our views on the value of this credential from the perspective of ethics consultants. In this paper, we explore the history that has led to this certification process, and evaluate the ability of the HEC-C Program to meet the goals it has set forth for HCECs. We describe the benefits and weaknesses of the program and offer constructive feedback on how the process might be strengthened, as well as share our team's experience in preparing for the exam.

Three Kinds of Humility in Bioethics Certification.

The author's skepticism about certifying bioethicists has a 20-year history. The hazards of certification include doubts about whether an online, multiple-choice exam measures what is important in bioethical deliberation. Other worries include the potential neglect of informal reasoning processes used by patients and families, the creation of a false sense of expertise, and how certification can disenfranchise lay members of ethics committees. This essay does not seek to reverse the growing trend toward certification but urges humility both in the process of certification and in interpreting the results. Humility is here defined through the works of Judith Andre and Jack Coulehan. Three kinds of humility are described as important for bioethics work: epistemic, moral, and ontological. The current qualifications for taking the certification exam are discussed, and suggestions for a better approach are offered.

The Advent of the Professional Ethicist: Moral Expertise and Health-Care Ethics Certification.

With the Healthcare Ethics Consultant Certification (HEC-C) offered through the American Society for Bioethics and Humanities (ASBH), the practice of clinical ethics has taken a decisive step into professionalization. But without an unambiguous sense of what clinical ethicists can contribute to the clinical environment, it is unclear what the HEC-C ensures clinical ethicists can do. Though the ASBH enumerates a set of core competencies, many disagree over what role those competencies empower ethicists to serve. Two recent publications are notable for advocating conflicting positions on the question of ethicists' competence: "Ethics Expertise: What It Is, How to Get It, and What to Do with It" by Christopher Meyers (2018) and Rethinking Health Care Ethics by Stephen Scher and Kasia Kozlowska (2018). In response to Scher and Kozlowska's argument that the primary role of ethicists is to create space to engage clinician's moral intuitions, this analysis follows Meyers in contending that ethicists can also contribute a kind of moral expertise. However, acquiring moral expertise is no easy task, and it is unlikely to be substantiated by a certification exam. This analysis draws on research from the psychology of expertise to outline the sort of training needed to cultivate and enhance moral expertise.

How Should Ethics Consultants Weigh the Law (and other Authoritative Directives)?

In the continuing debate about the role of the Clinical Ethics Consultant in performing clinical ethics consultations, it is often assumed that consultants should operate within ethical and legal standards. Recent scholarship has focused primarily on clarifying the consultant's role with respect to the ethical standards that serve as parameters of consulting. In the following, however, I wish to address the question of how the ethics consultant should weigh legal standards and, more broadly, how consultants might weigh authoritative directives, whether legal, institutional, or professional, against other normative considerations. I argue that consultants should reject the view that authoritative directives carry exclusionary reason for actions and, further, ethicists should interpret directives as lacking any moral weight qua authoritative directive. I then identify both implications and limitations of this view with respect to the evolving role of the ethics consultant in an institutional setting, and in doing so propose the kinds of considerations the ethicist should weigh when presented with an authoritative directive.

Lessons learned from implementing a responsive quality assessment of clinical ethics support.

BACKGROUND: Various forms of Clinical Ethics Support (CES) have been developed in health care organizations. Over the past years, increasing attention has been paid to the question of how to foster the quality of ethics support. In the Netherlands, a CES quality assessment project based on a responsive evaluation design has been implemented. CES practitioners themselves reflected upon the quality of ethics support within each other's health care organizations. This study presents a qualitative evaluation of this Responsive Quality Assessment (RQA) project. METHODS: CES practitioners' experiences with and perspectives on the RQA project were collected by means of ten semi-structured interviews. Both the data collection and the qualitative data analysis followed a stepwise approach, including continuous peer review and careful documentation of the decisions. RESULTS: The main findings illustrate the relevance of the RQA with regard to fostering the quality of CES by connecting to context specific issues, such as gaining support from upper management and to solidify CES services within health care organizations. Based on their participation in the RQA, CES practitioners perceived a number of changes regarding CES in Dutch health care organizations after the RQA: acknowledgement of the relevance of CES for the quality of care; CES practices being more formalized; inspiration for developing new CES-related activities and more self-reflection on existing CES practices. CONCLUSIONS: The evaluation of the RQA shows that this method facilitates an open learning process by actively involving CES practitioners and their concrete practices. Lessons learned include that "servant leadership" and more intensive guidance of RQA participants may help to further enhance both the critical dimension and the learning process within RQA.

The responsibilities of the engaged bioethicist: Scholar, advocate, activist.

The work of a bioethicist carries distinctive responsibilities. Alongside those of any worker, there are responsibilities associated with giving guidance to practitioners, policy makers and the public. In addition, bioethicists are professionally exposed to and required to identify situations of moral trouble, and as a result may find themselves choosing to work as advocates or activists, with responsibilities that are distinct from those generally acknowledged within academia. The requirement for bioethics to make normative judgements entails taking a stance, which means there cannot be a sharp line between 'academic' or 'objective' bioethics, and advocacy/activism, but a continuum of bioethicists' engagement and an associated continuum of responsibilities.

Bioethics and activism: A natural fit?

Bioethics is a practically oriented discipline that developed to address pressing ethical issues arising from developments in the life sciences. Given this inherent practical bent, some form of advocacy or activism seems inherent to the nature of bioethics. However, there are potential tensions between being a bioethics activist, and academic ideals. In academic bioethics, scholarship involves reflection, rigour and the embrace of complexity and uncertainty. These values of scholarship seem to be in tension with being an activist, which requires pragmatism, simplicity, certainty and, above all, action. In this paper I explore this apparent dichotomy, using the case example of my own involvement in international efforts to end forced organ harvesting from prisoners of conscience in China. I conclude that these tensions can be managed and that academic bioethics requires a willingness to be activist.

Two Troubling Trends in the Conversation Over Whether Clinical Ethics Consultants Have Ethics Expertise.

In a recent issue of the Journal of Medicine and Philosophy, several scholars wrote on the topic of ethics expertise in clinical ethics consultation. The articles in this issue exemplified what we consider to be two troubling trends in the quest to articulate a unique expertise for clinical ethicists. The first trend, exemplified in the work of Lisa Rasmussen, is an attempt to define a role for clinical ethicists that denies they have ethics expertise. Rasmussen cites the dependence of ethical expertise on irresolvable meta-ethical debates as the reason for this move. We argue against this deflationary strategy because it ends up smuggling in meta-ethical assumptions it claims to avoid. Specifically, we critique Rasmussen's distinction between the ethical and normative features of clinical ethics cases. The second trend, exemplified in the work of Dien Ho, also attempts to avoid meta-ethics. However, unlike Rasmussen, Ho tries to articulate a notion of ethics expertise that does not rely upon meta-ethics. Specifically, we critique Ho's attempts to explain how clinical ethicists can resolve moral disputes using what he calls the "Default Principle" and "arguments by parity." We show that these strategies do not work unless those with the moral disagreement already share certain meta-ethical assumptions. Ultimately, we argue that the two trends of (1) attempting to avoid meta-ethics by denying that clinical ethicists have ethics expertise, and (2) attempting to articulate how ethics expertise can be used to resolve disputes without meta-ethics both fail because they do not, in fact, avoid doing meta-ethics. We conclude that these trends detract from what clinical ethics consultation was founded to do and ought to still be doing-provide moral guidance, which requires ethics expertise, and engagement with meta-ethics. To speak of ethicists without ethics expertise leaves their role in the clinic dangerously unclear and unjustified.

Untangling Uncertainty: A Study of the Discourses Shaping Clinical Ethics Consultation as a Professional Practice.

This qualitative social scientific interview study delves into the ways in which professional vision is constructed in clinical ethics consultation (CEC). The data consist of 11 semi-structured interviews that were conducted with clinical ethics consultants currently working in hospitals in one major urban area in the U.S. The interviews were analyzed with the qualitative research method of critical discourse analysis, with a focus on identifying the cultural structures of knowledge that shape CEC as a professional practice. The discourses were first identified as belonging to two higher discourse categories, order and agency. Order was divided into three lower categories, emotional, managerial, and rational order, and discourses of agency into the lower categories of exploration, technique, deliberation, and distancing. An additional discourse of neutral interaction was identified as a bridging discourse, activated to level tensions emerging out of conflicting goals and agencies embedded in CEC practice. This analysis brings out as its main observation that clinical ethics consultants draw on and shift between potentially ideologically conflicting social positions that can create built-in tensions within the professional domain. The study calls attention to these tensions and suggests for the professional group to discuss the possibility of defining priorities between different kinds of order, identified in this study, that shape the CEC domain.

Gender and Race in the Timing of Requests for Ethics Consultations: A Single-Center Study.

BACKGROUND: Clinical ethics consultants are expected to "reduce disparities, discrimination, and inequities when providing consultations," but few studies about inequities in ethics consultation exist.1 The objectives of this study were (1) to determine if there were racial or gender differences in the timing of requests for ethics consultations related to limiting treatment, and (2) if such differences were found, to identify factors associated with that difference and the role, if any, of ethics consultants in mitigating them. METHODS: The study was a mixed methods retrospective study of consultation summaries and hospital and ethics center data on 56 age-and gender-matched Caucasian and African American Medicare patients who received ethics consultations related to issues around limiting medical treatment in the period 2011 to 2014. The average age of patients was 70.9. RESULTS: Consultation requests for females were made significantly earlier in their stays in the hospital (6.57 days) than were consultation requests made for males (16.07 days). For African American patients, the differences in admission-to-request intervals for female patients (5.93 days) and male patients (18.64 days) were greater than for Caucasian male and female patients. Differences in the timing of a consultation were not significantly correlated with the presence of an advance directive, the specialty of the attending physician, or the reasons for the consult request. Ethics consultants may have mitigated problems that developed during the lag in request times for African American males by spending more time, on average, on those consultations (316 minutes), especially more time, on average, than on consultations with Caucasian females (195 minutes). Most consultations (40 of 56) did result in movement toward limiting treatment, but no statistically significant differences were found among the groups studied in the movement toward limiting treatment. The average number of days from consult to discharge or death were strongly correlated with the intervals between admission to the hospital and request for an ethics consultation. CONCLUSION: Our findings suggest race and gender disparities in the timing of ethics consultations that consultants may have partially mitigated.

Measuring Quality in Ethics Consultation.

For all of the emphasis on quality improvement-as well as the acknowledged overlap between assessment of the quality of healthcare services and clinical ethics-the quality of clinical ethics consultation has received scant attention, especially in terms of empirical measurement. Recognizing this need, the second edition of Core Competencies for Health Care Ethics Consultation1 identified four domains of ethics quality: (1) ethicality, (2) stakeholders' satisfaction, (3) resolution of the presenting conflict/dilemma, and (4) education that translates into knowledge. This study is the first, to our knowledge, to directly measure all of these domains. Here we describe the quality improvement process undertaken at a tertiary care academic medical center, as well as the tools developed to measure the quality of ethics consultation, which include post-consultation satisfaction surveys and weekly case conferences. The information gained through these tools helps to improve not only the process of ethics consultation, but also the measurement and assurance of quality.

\Defining Patient Advocacy for the Context of Clinical Ethics Consultation: A Review of the Literature and Recommendations for Consultants.

The idea of patient advocacy as a function of clinical ethics consultation (CEC) has been debated in the bioethics literature. In particular, opinion is divided as to whether patient advocacy inherently is in conflict with the other duties of the ethics consultant, especially that of impartial mediator. The debate is complicated, however, because patient advocacy is not uniformly conceptualized. This article examines two literatures that are crucial to understanding patient advocacy in the context of bioethical deliberations: the CEC literature and the literature on advocacy in the social work profession. A review of this literature identifies four distinct approaches to patient advocacy that are relevant to CEC: (1) the best interest approach, (2) the patient rights approach, (3) the representational approach, and (4) the empowerment approach. After providing a clearer understanding of the varied meanings of patient advocacy in the context of CEC, we assert that patient advocacy is not inherently inconsistent with the function of the ethics consultant and the CEC process. Finally, we provide a framework to help consultants determine if they should adopt an advocacy role.

Specifying Specification.

This paper tackles the accusation that applied ethics is no serious academic enterprise because it lacks theoretical bracing. It does so in two steps. In the first step I introduce and discuss a highly acclaimed method to guarantee stability in ethical theories: Henry Richardson's specification. The discussion shows how seriously ethicists take the stability of the connection between the foundational parts of their theories and their further development as well as their "application" to particular problems or cases. A detailed scrutiny of specification leads to the second step, where I use insights from legal theory to inform the debate around stability from that point of view. This view reveals some of specification's limitations. I suggest that, once specification is sufficiently specified, it appears astonishingly similar to deduction as used in legal theory. Legal theory also provides valuable insight into the functional range of deduction and its relation to other forms of reasoning. This leads to a richer understanding of stability in normative theories and to a smart division of labor between deduction and other forms of reasoning. The comparison to legal theory thereby provides a framework for how different methods such as specification, deduction, balancing, and analogy relate to one another.

The Role of Communication and Interpersonal Skills in Clinical Ethics Consultation: The Need for a Competency in Advanced Ethics Facilitation.

Clinical ethics consultants (CECs) often face some of the most difficult communication and interpersonal challenges that occur in hospitals, involving stressed stakeholders who express, with strong emotions, their preferences and concerns in situations of personal crisis and loss. In this article we will give examples of how much of the important work that ethics consultants perform in addressing clinical ethics conflicts is incompletely conceived and explained in the American Society of Bioethics and Humanities Core Competencies for Healthcare Ethics Consultation and the clinical ethics literature. The work to which we refer is best conceptualized as a specialized type of interviewing, in which the emotional barriers of patients and their families or surrogates can be identified and addressed in light of relevant ethical obligations and values within the context of ethics facilitation.

Bioethicists Can and Should Contribute to Addressing Racism.

The problems of racism and racially motivated violence in predominantly African American communities in the United States are complex, multifactorial, and historically rooted. While these problems are also deeply morally troubling, bioethicists have not contributed substantially to addressing them. Concern for justice has been one of the core commitments of bioethics. For this and other reasons, bioethicists should contribute to addressing these problems. We consider how bioethicists can offer meaningful contributions to the public discourse, research, teaching, training, policy development, and academic scholarship in response to the alarming and persistent patterns of racism and implicit biases associated with it. To make any useful contribution, bioethicists will require preparation and should expect to play a significant role through collaborative action with others.