How Bioethics Can Enrich Medical-Legal Collaborations

It is recognized that lawyers and health care professionals may each be considered “clinicians;” however, within this article, when “clinician” is used, it will refer strictly to the health care professional.

There is ample literature on the medical-legal partnership model and theory. See, e.g., Cohen E. , “Medical-Legal Partnership: Collaborating with Lawyers to Identify and Address Health Disparities,” Journal of General Internal Medicine 25, Supp. 2 (2010): 136–139; Retkin R. , “Medical-Legal Partnerships: A Key Strategy for Mitigating the Negative Health Impacts of the Recession,” Health Lawyer 22, no. 1 (October 2009): 29–34; Wettach J. , “The Law School Clinic as a Partner in Medical-Legal Partnership,” Tennessee Law Review 75 (2008): 305–313; Tames P. , “The Lawyer Is In: Why Some Doctors Are Prescribing Legal Remedies for Their Patients and How the Legal Profession Can Support This Effort,” Boston University Public Interest Law Journal 12 (2003): 505–527.

Some use the terms interdisciplinary and multidisciplinary interchangeably, but they have different meanings. Multidisciplinary is more akin to a “separate but equal” partnership, while “interdisciplinary” implies a more integrated teaming among disciplines. See Jessup R. L. , “Interdisciplinary Versus Multidisciplinary Care Teams: Do We Understand the Difference,” Australian Health Review 31, no. 3 (2007): 330–331.

See National Center for Medical Legal Partnerships, “About Us,” available at <http://www.medical-legalpartnership.org/about-us> (last visited October 6, 2010) [hereinafter NCMLP]. As for federal support, the Medical-Legal Partnership for Health Act was introduced into the U.S. House of Representatives and Senate on July 29, 2010 (H.R.5961 and S.3668).

Much of the relevant literature examines how to deal with the ethical barriers in interdisciplinary work. Anderson A. , “Professional Ethics in Interdisciplinary Collaboratives: Zeal, Paternalism, and Mandated Reporting,” Clinical Law Review 13 (2007): 659–718; see Tames , supra note 2, at 513, 525–526; Norwood J. M. Paterson A. , “Problem-Solving in a Multidisciplinary Environment? Must Ethics Get in the Way of Holistic Service?” Clinical Law Review 9 (2002): 337–372.

Jacobson P. D. Bloche M. G. , “Improving Relations between Attorneys and Physicians,” JAMA 294, no. 16 (2005): 2083–2085.

There is remarkable similarity between the two professional codes. See Model Rules of Professional Conduct, at Preamble (2002); American Medical Association, Principles of Medical Ethics (Chicago: American Medical Association Press, 2008).

A lawyer as an advocate and a doctor as a healer are typical characterizations. However, as described by Professor Charity Scott, a doctor is also an advocate as an “economic advocate” (advocate with health insurance providers for the patient to obtain treatment that is medically necessary) and a “care advocate” (advocate for the patient in any conflict over the care with the patient or patient's family). Scott C. , “Doctors as Advocates, Lawyers as Healers,” Hamline Journal of Public Law and Policy 29 (2008): 331–399. A lawyer can also be a healer, as part of the broader roles for a lawyer in the Model Rules (i.e., counselor; consider moral, economic, social and political factors in acting as advisor), and as a problem solver, helping to make things better for people involved in the legal system. Id.

Medical ethics and bioethics are sometimes used interchangeably. However, as discussed in this article, bioethics results from a recognition that ethics apply to more than the physician profession and the clinical realm; bioethics encompasses ethics in health care and biomedicine.

NCLMP, “About Us: History,” available at <http://www.medical-legalpartnership.org/about-us/history> (last visited October 6, 2010).

Id. (formerly the “Medical Legal Partnership for Children”).

Schulman D. I. , “Public Health Legal Services: A New Vision,” Georgetown Journal on Poverty Law & Policy 25 (2008): 729–779, at 763 (citing American Bar Association, Health Law Section, Report to the House of Delegates, Recommendations (August 2007), available at <http://www.abanet.org/AIDS/docs/ABA_MLP_ResolutionAug2007adopted.doc> (last visited May 25, 2010).

Thomas Wells H. , American Bar Association President, to American Bar Association Members, October 21 2008, available at <http://www.abanet.org/legalservices/probono/medlegal/docs/wells_letter.pdf> (last visited May 25, 2010).

While it is beyond the scope of this article to be an exhaustive treatise on MLP models, there are several articles that define the MLP's purpose and potential models. For example, see, Zuckerman B. , “Why Pediatricians Need Lawyers to Keep Children Healthy,” Pediatrics 114, no. 1 (2004): 224–228; Retkin R. , “Lawyers and Doctors Working Together - A Formidable Team,” Health Lawyer 20, no. 1 (2007): 33–36; see also references in supra note 2.

LegalHealth, “Our Trainings,” available at <http://legalhealth.org/about/ourTrng.htm> (last visited October 6, 2010).

Rodabaugh K. J. , “A Medical-Legal Partnership as a Component of a Palliative Care Model,” Journal of Palliative Medicine 13, no. 1 (2010): 15–18, at 16.

See Cohen , supra note 2, at 137–39.

Id., at 137.

Lawton E. , “Disparities in Health, Disparities in Law: The Global Potential of Individual Advocacy,” in Cholewka P. Motlagh M. M. , eds., Health Capital and Sustainable Socioeconomic Development (Boca Raton: CRC Press, 2008): At 419–439; Weintraub D. , “Pilot Study of Medical-Legal Partnership to Address Social and Legal Needs of Patients,” Journal of Healthcare for the Poor and Underserved 21, Supp. 2 (2010): 157–168.

NCMLP, “2009 Medical-Legal Partnership Site Survey Results,” available at <http://www.medical-legalpartnership.org/mlp-network/network-site-survey> (last visited October 6, 2010).

This Section provides an overview of fundamentals of legal ethics, particularly areas relevant to MLPs. Readers wishing a more thorough examination could consult a number of treatises on legal ethics, e.g., Rhode D. L. Luban D. , Legal Ethics, 5th ed. (New York: Foundation Press, 2009); Lerman L. G. Schrag P. G. , Ethical Problems in the Practice of Law, 2nd ed. (New York: Aspen Publishers, 2008).

For a comprehensive guide to each state's application of ethical rules and codes, see American Bar Association, “Center for Professional Responsibility: Links to Other Legal Ethics and Professional Responsibility Pages,” available at <http://www.abanet.org/cpr/links.html> (last visited April 19, 2010).

The term “advisor” is used in a generic sense - to provide general legal information to the collaborative team. It is not meant to imply that the lawyer has assumed the role of an “advisor” pursuant to the Rules of Professional Conduct. See Model Rules of Professional Conduct, supra note 7, at R. 2.1 (“Advisor”) (2002).

See Tames , supra note 2.

Interestingly, the Model Rules do not contain a requirement that a lawyer “zealously” advocates for a client. The preamble to the rules, however, provides that a lawyer “zealously asserts the client's position under the rules of the adversary system.” See Model Rules of Prof'l Conduct, supra note 7, at Preamble § 2. It is generally accepted that lawyers may refuse to represent a prospective client, or withdraw from representing an existing client, if the client's position is morally repugnant to the lawyer's. See Model Rules of Professional Conduct, supra note 7, at R.1.16 (“Declining or Terminating Representation”).

See Rhode D. L. , “Ethical Perspectives on Legal Practice,” Stanford Law Review 37 (January 1985): 589–651, at 605; Simon W. H. , “The Ideology of Advocacy: Procedural Justice and Professional Ethics,” Wisconsin Law Review 29, no. 1 (1978): 29–144, at 36–38. Note that this concept should be recognizable to clinicians, who also have an obligation to uphold a capable/competent patient's autonomous wishes, even if not the clinician's own.

See Model Rules of Professional Conduct, supra note 7, at R.1.2(b) (2002) (“[a] lawyer's representation of a client…does not constitute an endorsement of the client's political, economic, social, or moral views or activities”).

Present and former client conflicts are governed by the principles of loyalty (to present clients) and confidentiality (to former clients). See Model Rules of Professional Conduct, supra note 7, at R. 1.7 and 1.9 (2002) (providing the guideposts for identifying conflicts of interest for present clients, and the duties to avoid conflicts of interest to former clients, respectively).

While this paper does not intend to focus on the nuances and complexities of the rules of professional lawyer conduct, it raises the issue of potential conflict of interest that should be addressed at the outset of every potential collaboration.

For example, the lawyer may encounter a client who seeks redress for a medical error committed by the hospital, but her pursuit of a remedy on behalf of the client would likely be her last act as a collaborative partner with the hospital. The very nature of MLPs precludes adverse action by the lawyer in the collaborative setting against the collaborative partner.

The lawyer's role as an Advisor is found in Model Rule 2.1. See Model Rules of Professional Conduct, supra note 7, at R. 2.1 (2002) (“in representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law, but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation”).

See Model Rules of Professional Conduct, supra note 7, at R 1.6 (2002).

See Restatement (Third) of Law Governing Lawyers § 68 (2000) (stating that privilege is generally extended to include “(1) a communication, (2) made between privileged persons, (3) in confidence, (4) for the purpose of obtaining or providing legal assistance for the client”).

See Anderson , supra note 5, at 659–718; Galowitz P. , “Collaboration Between Lawyers and Social Workers: Re-examining the Nature and Potential of Relationships,” Fordham Law Review 67 (1999): 2123–2154; Retkin R. , 'Attorneys and Social Workers Collaborating in HIV Care: Breaking New Ground,” Fordham Urban Law Journal 24 (1997): 533–565.

All three relationships are governed by codes that allow for the breach of confidentiality. Typically, lawyers may breach confidentiality when faced with a situation where she knows that a client is about to commit an act that will result in substantial bodily harm or death. See Model Rules of Professional Conduct, supra note 7, at R 1.6 (2002). A psychiatrist may reveal confidential information in order to protect individuals or the community from “imminent danger.” See American Psychiatric Association, The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry, 2009 rev. ed. (Arlington: American Psychiatric Association, 2009): at 5–6.

See Tames , supra notes 2 and 24, at 514–517

Vaughn L. , Bioethics: Principles, Issues, and Cases (New York: Oxford University Press, 2010): At 51. For more on the “Hippocratic Tradition,” see Veatch R. M. , A Theory of Medical Ethics (New York: Basic Books, Inc. Publishers, 1981): at 18–26.

Rothman D. J. , Strangers at the Bedside (NY: Basic Books, Inc., 1991): at 1.

See Jonsen A. R. , The Birth of Bioethics (New York: Oxford University Press, 1998) (“Even though medical ethics, bioethics' predecessor, was shaken by notable and notorious events, it was a slow accumulation of concerns about the ambiguity of scientific progress that turned the old medical ethics into the new paths of bioethics,” at 3).

See Scott C. , “Why Law Pervades Medicine: An Essay on Ethics in Health Care,” Notre Dame Journal of Law, Ethics and Public Policy 14, no. 1 (2000): 245–303; Annas G. J. , Standard of Care: The Law of American Bioethics (New York: Oxford University Press, 1993).

“Biomedical ethics” is also sometimes used.

See Rothman , supra note 38, at 102; for information on the difficulty of defining “medical ethics,” see Jonsen , supra note 39, at ch.1; for a “contract” theory of medical ethics, see Veatch , supra note 37.

For an interesting discussion of “Bioethics as a Discipline,” see Jonsen , id., at ch. 10.

This discussion is not meant to be an exhaustive exploration of the field of bioethics, but rather to provide a brief overview of certain core concepts and methods of bioethics. There are any number of sources readers may turn to for a more in-depth exploration, some mentioned in references in this paper. Other leading treatises include (but are not limited to), Baker R. B. McCullough L. B. , eds., The Cambridge World History of Medical Ethics (New York: Cambridge University Press, 2008); Steinbock B. , ed., The Oxford Handbook of Bioethics (New York: Oxford University Press, 2007); Steinbock B. Arras J. D. London A. J. , eds., Ethical Issues in Modern Medicine, 6th ed. (New York: McGraw-Hill, 2003); Loewy E. H. , Textbook of Healthcare Ethics (New York: Plenum Press, 1996).

Shannon T. , ed., Bioethics, 4th ed. (Mahwah, NJ: Paulist Press, 1993): At 3–5; see Vaughn , supra note 37, at 31–36. For a more in-depth discussion, see also references, id.

See Beauchamp T. L. Childress J. F. , Principles of Biomedical Ethics, 6th ed. (New York: Oxford University Press, 2008); see also Shannon , id., at 5–10.

“Autonomy” seems an obvious value, but can be tricky as applied. How much capacity does a patient need to autonomously make a decision? What if one's wishes are not clearly known and the family cannot agree on a decision? Or what if the patient is an adolescent, on the cusp of legal adulthood? These are the sorts of cases that vex the treatment team and may result in an ethics consult (and certainly have been known to cause many a legal issue as well).

See Jonsen A. R. Toulmin S. , The Abuse of Casuistry: A History of Moral Reasoning (Berkeley: University of California Press, 1988).

It is also worth noting that medical schools include some sort of ethics training, as do schools of nursing and health professions, with the aim that all entering health care professionals be capable of ethical analysis.

Smaller health care institutions, while perhaps lacking this formal ethics committee structure, will have a process to evaluate ethics cases.

For a discussion of the role of ethics committees, see Dougherty C. J. , “Institutional Ethics Committees,” in Post S. G. , ed., Encyclopedia of Bioethics, 3rd ed. (Woodbridge: MacMillan Reference, 2003): At 444–447 See also Hosford B. , Bioethics Committees: The Health Care Provider's Guide (Rockford, MD: Aspen, 1986) (discussing factors influencing growth in number of ethics committees, how they are formed, key functions, legal issues, and special types).

See DeVille K. A. , “Lawyers and Bioethics: Balancing Being Lawyers and Conferring with Medical Ethics Advisors,” Defense Counsel Journal 68, no. 4 (2001): 466–473. See also Hosford , id., at 129–136.

NCMLP, Medical-Legal Partnership Network Annual Partnership Site Survey - March 2009 , available at <http://www.medical-legalpartnership.org/mlp-network/network-site-survey> (last visited October 7, 2010).

For an informative summary of the clinical ethics consultation process, see Kanoti G. A. Younger S. , “Clinical Ethics Consultation,” in Post , ed., supra note 51, at 439–44.

Section IV of this article includes case examples with an ethics consult.

Prominent models for clinical bioethical analysis may be found in Jonsen A. R. Siegler M. Winslade W. J. , Clinical Ethics: Approach to Ethical Decisions in Clinical Medicine , 4th ed. (New York: McGraw-Hill, Inc., 1998); Fletcher J. C. Lombardo P. A. Marshall M. F. Miller F. J. , eds., Introduction to Clinical Ethics, 2nd ed. (Hagerstown: University Publishing Group, 1997); Aulisio M. P. Arnold R. M. Younger S. J. , Ethics Consultation: From Theory to Practice (Baltimore: Johns Hopkins University Press, 2003). See also Kaldijan L. C. Weir R. F. Duffy T. P. , “A Clinician's Approach to Clinical Ethical Reasoning,” Journal of 'General Internal Medicine 20, no. 3 (2005): 306–311; Lo B. , Resolving Ethical Dilemmas: A Guide for Clinicians, 3rd ed. (Philadelphia: Lippincott, Williams & Wilkins, 2005): At 7, Table 1–1.

See, e.g., Sontag D. , “Immigrants Facing Deportation by U.S. Hospitals,” New York Times, August 3, 2008.

Intended here is a “bioethics” (i.e., a health care related ethics) consult; however, within hospitals and health systems, which would be less aware of “legal ethics” related consults, typically one would refer to this as an “ethics consult” (vs. bioethics consult).

The assumption is made that the lawyer and Ruth entered into a retainer agreement defining the scope of the representation, even in this limited capacity.

Discussed infra Sec. II.5.

A process and form has been developed to facilitate this communication and translate it into a formal medical order, in New York known as the “MOLST” (medical order for life-sustaining treatment). NY Pub. Health Law § 2977(13) (McKinney Supp. 2009). This additional sort of “paperwork” has its own critics, but physicians should be aware of policy support of formal documentation of patient wishes.

At this point, the PCP may have an obligation to report child neglect pursuant to his state's mandatory child abuse and neglect reporting statute. Generally, mandatory reporters (those defined by statute) are required to report abuse, neglect, injuries detected that are inconsistent or at variance with explanations provided, and children who are placed in imminent risk of harm. Many state reporting schemes require that a parent, guardian, or someone responsible for the care and protection of the child cause the abuse, neglect or imminent risk of harm. As a result, the mere fact that a minor is engaged in potentially illegal conduct (e.g., statutory rape) may not implicate child welfare reporting laws in many states because the conduct complained of does not emanate from parental malfeasance or parental nonfeasance.

The codification is the beginning of the process for resolving many ethical legal issues, not the source of resolution.

See Annas , supra note 40, at 6 (“[t]he law is mandatory, setting standards that can only be breached at the risk of civil or criminal liability. Ethics is aspirational, setting forth universal goals that we should try to meet, but for which we suffer no temporal penalty when falling short.”).

See Egan E. A. Parsi K. Ramirez C. , “Comparing Ethics Education in Medicine and Law: Combining the Best of Both Worlds,” Annals of Health Law 13, no. 1 (2004): 303–325.

See, for example, Anderson , supra note 5; Norwood Paterson , supra note 5; Tyler E. T. , “Allies Not Adversaries: Teaching Collaboration to the Next Generation of Doctors and Lawyers to Address Social Inequality,” Journal of Health Care Law and Policy 11 (2008): 249–294.

See Tyler , id., at 252.

There are valid differences of opinion amongst those involved in MLPs about whether the “training” in interdisciplinary collaborations should be during the professional school training or when the professionals are in practice. The authors believe that it is important to have it during the professional school training so that it affects and influences the training and socialization of the professionals.

Some of the issues that should be addressed in these protocols include the interaction with the referring source (i.e., what information provided by the healthcare professional as part of the referral and what information is reported back by the lawyer to the healthcare professional) and the respective roles in interdisciplinary case consultations.

See Norwood Paterson , supra note 5.

See, e.g., Chapter 8, Laws of 2010, adding NY Public Health Law Article 29-CC (“The Family Health Care Decisions Act”), at sec. 2994-m.

Simmons S. P. , Report to the House of Delegates, 1998 A.B.A. Comm'n on Multidisciplinary Practice.

Brustin S. L. , “Legal Services Provision through Multidisciplinary Practice — Encouraging Holistic Advocacy While Protecting Ethical Interests,” University of Colorado Law Review 73 (2002): 787–865.

We do recognize the “not another commission” argument against this recommendation, but stress that this proposed commission would be formed with the specific goal to address the sorts of non-profit multidisciplinary practices that MLPs represent, and that are of growing use.

See Wydra H. A. , “Keeping Secrets within the Team: Maintaining Client Confidentiality While Offering Interdisciplinary Services to the Elderly Client,” Fordham Law Review 62 (1994): 1517–1545, at 1537–1541.