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.

Clinical ethics consultation among Italian ethics committee: A mixed method study.

OBJECTIVE: The general purpose for ethics consultations is to deliberate on issues on medical and scientific research and act towards the safeguard of the patient's rights and dignity. With the implementation of European Union (EU) Regulation 536/2014 on clinical trials and cost and time-optimization, the nature of consultations and the bodies they are carried out might be to some extent affected. Accordingly, we sought to gain an updated perspective on the current role and current practices of ethics consultations nationwide in both clinical and research settings. METHODS: The study was carried forth by a three-step mixed-method approach: i) review of policies/regulations for ethics committee (EC) nationwide; ii) a structured survey on ethics consultation activity completed by each EC during 2016; iii) incorporated into the third part, a qualitative assessment with a selected sample of 8 key-informants for a semi-structured interview, discussing EC history, the ethics consultation function, and the professional experience of consultants. RESULTS: Review of the policies/regulations promoted by ECs showed that 72,6% (n = 69) of all the ECs (N = 95) being actually capable of providing ethics consultation service by policy. 71 ECs (74.7%) responded to the survey on ethics consultation requests; among them, 48 (67.6%) provided ethics consultations of which 23 (23/48) actually received requests for this service in the year 2016. Many ECs did not have a structured database in place to provide precise figures of requests received in the last year nor of their contents. CONCLUSION: To date, ethics consultation in clinical and research practice is largely underappreciated and not well understood by users. The consultants themselves lack a comprehensive vision of work carried out in their field, and bioethics training programs to keep them updated. Despite clinical ethics consultation services should not necessarily be mandatory, following the recent EU Regulation on clinical trials, institutional ethics consultation bodies should be re-evaluated.

Surrogate medical decision making on behalf of a never-competent, profoundly intellectually disabled patient who is acutely ill.

With the improvements in medical care and resultant increase in life expectancy of the intellectually disabled, it will become more common for healthcare providers to be confronted by ethical dilemmas in the care of this patient population. Many of the dilemmas will focus on what is in the best interest of patients who have never been able to express their wishes with regard to medical and end-of-life care and who should be empowered to exercise surrogate medical decision-making authority on their behalf. A case is presented that exemplifies the ethical and legal tensions surrounding surrogate medical decision making for acutely ill, never-competent, profoundly intellectually disabled patients.

Legal briefing: The unbefriended: making healthcare decisions for patients without surrogates (Part 1).

UNLABELLED: This issue's "Legal Briefing" column covers recent legal developments involving medical decision making for unbefriended patients. These patients have neither decision-making capacity nor a reasonably available surrogate to make healthcare decisions on their behalf. This topic has been the subject of recent articles in JCE. It has been the subject of major policy reports. Indeed, caring for the unbefriended has even been described as the "single greatest category of problems" encountered in bioethics consultation. Moreover, the scope of the problem continues to expand, especially with rapid growth in the elderly population and with an increased prevalence of dementia. Unfortunately, most U.S. jurisdictions have failed to adopt effective healthcare decision-making systems or procedures for the unbefriended. "Existing mechanisms to address the issue of decision making for the unbefriended are scant and not uniform". Most providers are "muddling through on an ad hoc basis". Still, over the past several months, a number of state legislatures have finally addressed the issue. These developments and a survey of the current landscape are grouped into the following 14 categories. The first two define the problem of medical decision making for the unbefriended. The remaining 12 categories describe different solutions to the problem. The first six of these solutions are discussed in this article (Part 1). The last eight solutions will be covered in the Summer 2012 issue of JCE (Part 2). 1. Who are the unbefriended? 2. Risks and problems of the unbefriended. 3. PREVENTION: advance care planning, diligent searching, and careful capacity assessment. 4. Decision-making mechanisms and standards. 5. Emergency exception to informed consent. 6. Expanded default surrogate lists: close friends. 7. Private guardians. 8. Volunteer guardians. 9. Public guardians. 10. Temporary and emergency guardians. 11. Attending physicians. 12. Other clinicians, individuals, and entities. 13. Institutional committees. 14. External committees.

When ethics consultation and courts collide: a case of compelled treatment of a mature minor.

A fourteen year old is diagnosed with aplastic anemia. The teen and his parents are Jehovah's Witnesses. An ethics consult is called on the day of admission by an ethically sophisticated social worker and attending. The patient and his parents see this diagnosis as "a test of their faith." The ethical analysis focuses on the mature minor doctrine, i.e. whether the teen has the capacity to make this decision. The hospital chooses to take the case to court, with a result that is at odds with the ethics consultation recommendations. Ethics was never deposed or otherwise invited to be involved with the hearing. Thus the larger question of the relation of ethics and law was brought into stark relief.

[The growing importance of ethics in medical care and research]. / Die wachsende Bedeutung von medizinischer Ethik in Versorgung und Forschung.

The integration of medical humanities into future patient care and medical research will become as importance for trust, care and health as the natural sciences were during the last 100 years. In particular, improvements of lay health literacy and responsibility, new forms of physician-nurse partnership and expert-lay interaction, also revisions of clinical research towards models of informed contract will improve trust and health on a global scale, allow for healthier and happier citizens and populations and eventually might reduce health care costs.

Optimising the documentation practices of an Ethics Consultation Service.

A formal Ethics Consultation Service (ECS) can provide significant help to patients, families and hospital staff. As with any other form of clinical consultation, documentation of the process and the advice rendered is very important. Upon review of the published consult documentation practices of other ECSs, we judged that none of them were sufficiently detailed or structured to meet the needs and purposes of a clinical ethics consultation. Thus, we decided to share our method in order to advance the practice of ethics consultation. Here, we describe a method of ECS documentation practice, including use of a formal consult report template, as well as a log for maintaining a chronological record of the consultations performed. These two documents facilitate order and organisation of the ECS. They also enable the ECS to keep an account of professional time and experience, enable quick consult trend assessments (by consult theme or ward, for example) and establish a potential registry of consults for future research study. This method of documentation, we believe, not only contributes significantly to the primary purpose of the consultation-namely, the evincing and sharing of ethical opinion about a case-but also enables consultants to improve their practice and to pursue research on clinical ethics consultation.

Ethicians, ethicists and the goals of clinical ethics consultation.

We believe that clinical ethics consultation (CEC) has as its goal the delivery of healthcare in a manner consistent with the moral rules and the moral ideals. Towards this end, CEC pursues the instrumental ends of clarifying the limits of acceptable ethical disagreement and facilitating a choice among ethically acceptable alternatives. In pursuing these ends, healthcare ethics consultation (HEC) and CEC services confront three broad categories of questions: (1) questions of professional duty; (2) questions of law; and (3) questions of general morality. Professional duty questions concern what has been referred to as the "internal morality of medicine", and include questions such as the medical legitimacy of the goal(s) being pursued, or the acceptability of the means being employed. Questions of law concern themselves with what the law requires, permits or prohibits. Questions of general morality include all those not falling within the scope of the above categories. We submit that this has implications for the organization and structure of consultation services and HEC and for the methodology and processes employed in CEC. Thus: (1) questions of professional duty should be addressed only by physician members (whom we would distinguish by employing the term "ethicians") of the HEC or CEC service. The only role for non-ethicians under these circumstances would be in helping to resolve disagreements between/among professionals; (2) questions of law, in contrast, should be addressed only by the attorney member(s) of the HEC or CEC service; (3) questions of general morality may be addressed by the entire membership of the HEC or CEC service.