An Ethics Expertise for Clinical Ethics Consultation

Of course, several authors have forwarded individual conceptions of expertise, some of which will be discussed in this paper. However, there is no field-wide consensus on a conception of moral expertise which could offer guidance in making decisions about professional standards.

Satel Sally , for example, seems to endorse the premises explicitly: “The matter of ethical expertise—what it looks like, who can claim it—is a profound one. Bioethics' place in the academy, in the clinical realm, and in society turns on it. For most of us, the very idea of ‘right’ answers to complex moral and philosophical dilemmas such as euthanasia, embryonic stem cell cloning, or organ remuneration is absurd on its face. After all, deriving an “answer” depends upon which type of moral theory one favors.” Satel S. , “The Right (and Wrong) Answers,” The Book: An Online Review, The New Republic, 2010, available at <http://www.tnr.com/book/review/the-right-and-wrong-answers> (last visited September 9, 2011). Wesley Smith argues in a similar vein: “… training in bioethics adds little to resolving outcomes, since the field cannot provide ultimate verdicts on moral questions.” Smith W. , “The Question of Method in Ethics Consultation: Transforming a Career into a Profession?” American Journal of Bioethics 1, no. 4 (2001): 42–43, at 42.

Because clinical ethics consultation includes a variety of skills and roles, none of which provide its sole raison d'être, the attempt might be made to avoid the critique altogether by focusing on skills other than moral expertise. For example, it is often observed that clinical ethics consultation regularly involves communication problems. This has been substantiated by at least one empirical study: Førde Vandvik conclude their study by observing that “[p]roblems related to information/communication may underlie a classical ethical problem. Identification of these ‘hidden’ problems may be important for the analysis, and hence, the solution to the ethical dilemma.” Forde R. Vandvik I. H. , “Clinical Ethics, Information, and Communication: Review of 31 Cases from a Clinical Ethics Committee,” Journal of Medical Ethics 31, no. 2 (2005): 73–77, at 73. CECs may be most useful to the extent that they can resolve these kinds of problems, which may focus around an ethical question but involve no real ethical dilemma. However, this strategy to avoid the critique is problematic because “ethics” is usually understood to be a main function of the field's activity. It seems incumbent on clinical ethics consultants to articulate and defend a conception of the expertise they provide in ethical matters which does not fall prey to the objections of absurdity and grave wrongness.

Until I make a distinction, in section II, between “moral expertise” and “ethics expertise,” I will use “moral expertise” as the generic term to apply to expertise in moral matters.

Of course, many proposals have been made for a conception of moral expertise in clinical ethics consultation. However, pace the Core Competencies documents, which are tentative and advisory, the field has not formally adopted a conception of moral expertise on which to ground certification, accreditation, etc. See American Society for Bioethics and Humanities, Core Competencies for Healthcare Ethics Consultation, 2nd ed., 2011, and American Society for Bioethics and Humanities, Core Competencies for Healthcare Ethics Consultation, Glen-view, IL, 1998.

And which, incidentally, may be taught, assessed, certified, licensed, and in other ways standardized.

In a review of two books on clinical ethics consultation, Laurie Zoloth-Dorfman and Susan Rubin make a similar distinction between “moral expertise” and “ethics expertise:” “[The clinical ethics consultant's expertise] is an expertise not in morals, but in ethics. In other words, hers is a discipline that functions not by offering declarative normative judgments, but rather by raising critical questions and focusing conversation and deliberation.” Zoloth-Dorfman L. Rubin S. , “Navigators and Captains: Expertise in Clinical Ethics Consultation,” Theoretical Medicine 18, no. 4 (1997): 421–432, at 430. However, as the focus of the article lies elsewhere, it does not further probe that distinction.

“Ethical expertise” is another possible term, but because of the adjective's ambiguity, it can also mean “expertise delivered in an ethical way.” “Ethics expertise,” on the other hand, refers more explicitly to expertise in ethics.

This also includes knowledge of how moral arguments proceed, the objections to which they are vulnerable, the implications of adopting various premises, etc. However, as this is an unobjectionable form of moral expertise, I focus here on the “ethos” content of ethics expertise, and simply include analysis of arguments within the abilities of an ethics expert.

For example, that respecting the autonomy of individuals means not treating them contrary to their wishes, or that removing life support from a brain-dead patient is acceptable. I do not mean to imply that professional consensus means that the correct answer has been discovered or established. However, if patients and family members are uncertain about their choices, it may help to know what other people have thought about an issue. At the same time, consultants must be careful that the provision of such information not be used as a coercive tool.

Note that offering even this more robust kind of moral expertise need not violate individual legal rights. The law often protects the rights of individuals to make wrong decisions.

A clinical ethics consultant has many duties, only one of which is directly communicating with patients, family, and surrogate decision makers. Other duties include education, policy review or initiation, and consultation with health care professionals, all of which raise the question of the extent of the consultant's moral expertise. I think the proposed conception of ethics expertise applies to all of these areas, so although I often describe consultants as working with individual patients and family members, it is simply a shorthand description. There is an intriguing wrinkle, however, in cases that do not directly involve patients or even a conversation regarding patients' wishes. Through “curbside consults,” that is, consultations with health care professionals who simply have questions to ask about a particular case, a consultant can shape the options that later are presented to a patient. Although I cannot fully explore this possibility here, I do consider it below in section II.D.2.

One might even argue that the consultant should make such an observation; this possibility is discussed below in Section II.C.3.

The use of this term also helps explain why the advice of clinical ethics consultants should not be taken as binding: The recommendation is contextual and will depend on the premises with which one begins.

This case is based on a case presented by Benjamin Freedman. Freedman B. , “Offering Truth,” Archives of Internal Medicine 153, no. 5 (1998): 572–576.

Id.

This is similar to Moreno's description of the talent of “discernment” in clinical ethics consultation, instanced by a consultant's ability to raise a previously ignored aspect of the case. Moreno J. , “Ethics Consultation as Moral Engagement,” Bioethics 3, no. 1 (1991): 44–56, at 48–49.

Weinstein B. , “The Possibility of Ethical Expertise,” Theoretical Medicine 15, no. 1 (1994): 61–75.

Yoder S. , “The Nature of Ethical Expertise,” Hastings Center Report 28, no. 6 (1998): 11–19.

Of course, individual consultants may in fact make such assertions. On this account of ethics expertise, they would be wrong to do so qua CECs, though of course they may have very robust views as individuals.

It is critical to note that no clinical ethics consultant will be able to offer definitive moral advice to all patients. Because knowledge of the metaphysical commitments of each religion or other belief system will vary (as will individual members' adherence to them), it will be crucial for a consultant to know when he or she has reached the limits of understanding of a patient's belief system, and when another expert must be requested. For example, an exploration of a Jehovah's Witness's convictions regarding the acceptance of blood products may indicate that there are differences of opinion on whether particular components of whole blood may be acceptable. (See Associated Jehovah's Witnesses for Reform on Blood, “Watch-tower Blood Policy Changes,” available at <http://www.ajwrb.org/basics/change.shtml> [last visited September 9, 2011] for a discussion on the subtle distinctions and opinions on their acceptability). As a result, the patient may choose to solicit the advice of a religious leader in her own case for guidance that a consultant may not be competent to provide.

Too, following scientific convention in naming “moral substances” results, as for “electrons,” “protons,” and “neutrons,” in the unfortunate term “morons.”

Cholbi Michael terms this the “credentials problem” and describes it as follows: “Moral experts have no need to seek out others' moral expertise, but moral non-experts lack sufficient knowledge to determine whether the advice provided by a putative moral expert in response to complex moral situations is correct and hence whether an individual is a bone [sic] fide expert.” Cholbi M. , “Moral Expertise and the Credentials Problem,” Ethical Theory and Moral Practice 10, no. 4 (2007): 323–334.

For example, there is the possibility of nepotism and other forms of favoritism if the experts merely identify each other. This may work in religious communities possessing specific structures and methods capable of identifying experts or other leaders (including prayer, divine anointment, etc.), but it seems unlikely at best in a pluralist community.

Driver J. , “Autonomy and the Asymmetry Problem,” Philosophical Studies 128, no. 3 (2006): 619–64.

Id., at 623.

Id., at 635 (emphasis added).

In some religious belief systems, behaving thus may express the moral virtue (or requirement) of obedience.

Driver notes that there are still potential problems with using ethics experts' advice, stemming from the problem of reliability of judgment and whether it can be transmitted impartially or not. These are important points, but they are not concerns about autonomy, which is what is being considered here.

I have heard anecdotally of a hospital chaplain who refused to call a religious authority of the faith requested by a patient, going so far as to attempt to block the door when that authority nevertheless appeared. Regardless of the truth of the story, it offers a cautionary tale: A clinical ethics consultant would be gravely wrong, on her own lights of respect for autonomy, to prevent a patient or family from seeking guidance from an authority they recognize, instead of from a clinical ethics consultant.

Elliott C. , “The Tyranny of Expertise,” in Eckenwiler L. A. Cohn F. G. , eds., The Ethics of Bioethics (Baltimore: The Johns Hopkins University Press, 2007): 43–46, at 44.

For example, Smith Weise entitle their paper, “The Goals of Ethics Consultation: Rejecting the Role of the 'Ethics Police.” Smith M. L. Weise K. L. , “The Goals of Ethics Consultation: Rejecting the Role of ‘Ethics Police,’” American Journal of Bioethics 7, no. 2 (2007): 42–44. The Alden March Bioethics Institute Consultation Service's policy reads as follows: “Our role is to assist and support, not make decisions for patients…. The options presented by the Consultation Service are of an advisory nature only, and are neither institutionally nor legally binding.” Alden March Bioethics Institute, “AMBI Ethics Consultation Service/General Description,” available at <http://www.amc.edu/Academic/bioethics/ethics_consultation_service/ethics_consultation_service.html> (last visited September 9, 2011). For contrast, note that in the Catholic Church, “The [Ethical and Religious Directives] are particular law, and hence are binding on any health care agency in the United States that is sponsored by the Catholic Church.” Hilliard M. T. , “Model Policy Concerning the Care to Patients at Life's End for Catholic Health Care Agencies,” Ethics and Medics 33, no. 8 (2008), available at <http://ncbcenter.org/page.aspx?pid=1024> (last visited September 16, 2011). The United States Conference of Catholic Bishops makes this clear in the Ethical and Religious Directives for Catholic Health Care Services, 4th ed.: “Catholic health care services must adopt these Directives as policy, require adherence to them within the institution as a condition for medical privileges and employment, and provide appropriate instruction regarding the Directives for administration, medical and nursing staff, and other personnel.” United States Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services, 4th ed., 2008, available at <http://nccbuscc.org/bishops/directives.shtml> (last visited September 16, 2011). More ambiguously, the first Core Competencies document argues that one of the roles of the ethics facilitation approach to consultation that it advances is to “help to identify a range of morally acceptable options within the context.” See ASBH, 1998, supra note 5, at 6. Similarly, the second edition includes as an appropriate role “help to identify a range of ethically acceptable options within the context and provide an ethically appropriate rationale for each person.” See ASBH, 2011, supra note 5, at 8. Depending on how “ethically acceptable” is characterized (e.g., must one select from among the “ethically acceptable” options?), this may or may not reject the role of an ethics policeman.

I assume that consultation must be legitimated on its own grounds (regardless of profitability) as a necessary condition for being practiced in hospitals, though I recognize that an institution may have a keen interest in the economic effects of the service. To that end, it is worth considering the evidence that consultation services can be seen as useful and as net cost-saving. Heilicser B. Meltzer D. Siegler M. , “The Effect of Clinical Medical Ethics Consultation on Healthcare Costs,” Journal of Clinical Ethics 11, no. 1 (2000): 31–38; Gilmer T. Schneiderman L. J. Teetzel H. Blustein J. Briggs K. Cohn F. Cranford R. Dugan D. Komatsu G. Young E. , “The Costs of Nonbeneficial Treatment in the Intensive Care Setting,” Health Affairs 24, no. 4 (2005): 961–971. However, I have also cautioned against an overreliance on a cost-saving justification of clinical ethics consultation. Rasmussen L. M. , “Sinister Innovations: Beware the Cooptation of Clinical Ethics Consultation,” Journal of Value Inquiry 40, nos. 2–3 (2006): 235–242.

Fox E. Stocking C. , “Ethics Consultants' Recommendations for Life-Prolonging Treatment in a Persistent Vegetative State,” Journal of the American Medical Association 270, no. 21 (1993): 2578–2582.

Agich G. , “Expertise in Clinical Ethics Consultation,” HEC Forum 6, no. 6 (1994): 379–383.

Fox and Stocking themselves conclude, “This degree of variability in recommendations by ethics consultants may be troubling at first… But it would be a mistake to construe our results as evidence condemning ethics consultants or the consultation process. The mere presence of variation among ethics consultants does not imply a lack of expertise, nor does it imply that ethics consultation is without value.” Id., at 2581.

In addition, the likely form of consultants' advice is that various options are possible. The appropriate measure of commonality among consultants might be that they (1) identify as inappropriate the same choices and (2) identify similar ranges of possibilities, as well as the kind of additional information that might help them to make a more decisive evaluation. It is also worth noting that the lack of consensus in this study at least fails to support any claims to moral or cultural hegemony among clinical ethics consultants.

Archard D. , “Why Moral Philosophers Are Not and Should Not Be Moral Experts,” Bioethics 25, no. 3 (2009): 119–127, at 21.