ethics for hospital ethics committees: an introduction

H E C FORUM, VaL 2, No. 6, pp. 281-397, 1990. 0956-2737/89 $3,(?0+.00 Printed in the USA. All rights reserved. Copyright O 1990 Pergamon Press pie

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ETHICS FOR HOSPITAL ETHICS COMM1TFEES: AN INTRODUCTION

LISA NEWTON, Ph.D.

The purpose of this document is simple: to pull new members of Hospital Ethics Committees past the Ethics Block (to be understood on an analogy with the Math Block of the last generation of freshmen women). The tendency of professionals who are not experts in ethics is to fear ethics, and that fear comes out in one of several ways:

. Relativism: I don' t know ethics, but I know how I feel, and this is a free country, and no one's going to tell me what's right and wrong, and anyone who tries is a Fundamentalist or a Fascist and I don' t have to pay a t ten t ion to them. More gently: what I think is right is right for me, and what you think is r ight /s right for you, and ethics is really just a matter of emotions, so we don' t have to take it seriously.

The member who holds this attitude will trivialize any discussion the Committee gets into, by reducing moral judgment to mere emotion. If the attitude shows up, it may be worth ten minutes spent refuting it. (You might start out by drawing out the moral judgments implicit in the paragraph above, and asking the relativist if he is willing to assert them as universal.)

. Fundamentalism or Fascism: I have my faith, and I believe it, and that settles it. I don't tolerate disagreement.

The member who holds this attitude may be a very good person, but with the best will in the world is likely to gum up discussions. (Maybe he shouldn't be on the Committee?) He must be asked to respect the views of others.

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. Authoritarianism: I don't know anything about ethics, but ethical questions come up, so let's hire an expert on ethics as a consultant and then we'll get all the right answers. Just don't ask me to think about them.

This book is aimed particularly at this attitude. This member does too know ethics, enough to join in the discussions. All he needs to do is learn the vocabulary.

. Legalism: Ethics means just staying clear of the law, right? So if I ask the hospital lawyer what to do, I 'm all right?

For starters we might suggest to this member that, as Angela Holder is fond of saying, "Good medicine is good ethics and good ethics is good law." Practice medicine conscientiously and the law will take care of itself, and you too. No one can guarantee that there will be no lawsuits; in this country, anyone can sue anyone for anything. But good medicine and good ethics (telling the truth when you make a mistake, for instance) will keep you as clear as may be, and will at least make sure that you don' t end up on the wrong end of a legal judgment.

The rest of the book takes on various recurrent aspects of Committee functioning. How should the hospital develop its policies? How might policies on the sensitive areas of hospital operat ion -- areas like withdrawing of life-sustaining interventions, introducing novel technologies, and the like -- be developed? How are the most inflammatory terms to be interpreted?

This effort at an orientation booklet for the Hospital Ethics Committee is a recent one, and not at all to be taken as definitive. It does not at tempt the comprehensiveness of (say) the Hastings Center literature on the subject, covering in exhaustive detail the history and legal environment of the H EC movement, and addressing all of the administrative questions in similar detail (how should the H E C be incorporated? How many members should it have? Who should have access to the Committee? etc.). For any committees in formation, the Hastings Center packet on the subject is highly recommended.

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Take this, then, as a working paper. Send suggestions, and modify as you will. We are presently in the infancy of a very exciting trend in health care; we owe it to each other, to the health care professionals and to the patients, to provide all the clarity we can to this continuing dialogue.

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A Core Curriculum for Ethics

Note on terminology: By "hospital" in what follows please include also health care center, medical center, nursing or convalescent residence, or other institution which, dedicated to the health-related care of those who cannot care for themselves, has decided to institute an ethics committee.

The fundamentals of education in ethics: the field of ethics, the role of the Ethics Committee, the role of the ethicist and the rules of the game.

A. The first thing you must know about ethics is that you already know it.

1. We often talk about acting on "gut feelings" or "instincts" or just "reacting naturally to the situation." But those are very educated instincts and informed intestines: when we "just react" to a situation, we are actually distilling lifelong experience to apply to the situation before us. We have learned ethics by associating with family, friends, colleagues and others in the society around us, and the best bet is that any consensus we may have reached in any reasonably decent society is intuitively sound.

. Education is needed primarily to articulate the bases of these experience-guided judgments, in certain situations:

a. Where there is doubt or disagreement: in such cases it is essential to spell out how that disagreement arises, what it is about and how it might be resolved.

Note: There are values appropriate to health care decisions -- sanctity of life, autonomy of the patient, rationality of resource allocation -- that may very well pull in different directions in a given situation. Conflict is not unlikely.


B.

C.

b. Where the situation i s novel: in such cases no one has had a chance to develop the appropriate "gut-lever' reactions.

Note: Novelty brought the field of bioethics into existence; the development of new technology, especially life- sustaining technology but also reproductive and diagnostic technology, raised questions that the trained intuitions of excellent physicians could not answer.

The role of the Ethics Committee:

. To keep in review all hospital policies that have ethical implications (as requested);

. To develop and keep in review policy guidelines addressing novel technology and emerging conditions (as they arise);

. To educate the hospital's various constituencies in matters of ethics and medical ethics (as needed);

4. To consult on individual cases (as invited);

. To assist in the development and review of the hospital's Mission Statement (as appropriate).

The role of the ethicist:

. To articulate the content of those gut-level arguments, where necessary;

. To analyze disputes, as they arise; to say what is at stake and indicate options for solutions;

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D.

3. To articulate a consensus, when one is reached.

. Emphatically not to be a moral authority, not to tell everyone else what is right and wrong; and most especially, not to tell everyone else how to practice medicine or nursing.

The ethics of committee operation -- some basic principles:

. The avoidance of stereotyping: The values of an Ethics Committee, properly constituted, is in the variety of backgrounds and perspectives brought to it by the constituent members, all of whom may be presumed to have thought about ethical issues before and to be willing to work with persons not of their own background. No good is accomplished if we import inaccurate generalizations -- about all doctors, all nurses, all philosophers, lawyers, etc. -- into the proceedings.

. Honesty: Respect for the process of deliberation carried on by others requires that you be completely honest as to your information, perceptions of the situation, and connections to it other than those occasioned by committee membership; for instance, as is becoming more and more common, any financial ties that committee members may have to any companies under discussion.

. The assumption that others' motives are as pure as your own: Logic knows of an argument called t he "ad hominem" in which you avoid answering the points raised by someone who disagrees with you, but concentrate on an attack on that person's character, motives, and lifestyles. This argument is not logically sound. Avoid it.

. Respect for differences of opinion, even intractable ones: Sometimes, even when agreeing on moral principles, we will weight them differently and reach differing conclusions, and


sometimes, we will have to compromise.

. Courtesy and good manners: Remember, we will be working together for awhile.

. A note on vocabulary: Concerns over uses of words may seem trivial in comparison with life and death problems. But it seems that there are concepts abroad in the health care literature -- "euthanasia," "quality of life," and "exploitation" are three of them -- that cause more problems than they solve in most of the situations in which they are adduced. Such words should be put on a red-flag list; if they show up in a dispute, the dispute will go no further until they are carefully defined for purposes of the arguments at hand. (For what it may be worth, a short discussion of these terms in particular is appended to this document.)

II. The ethical principles that ground our judgments:

A. "Beneficence": the principle that does not change. The Hippocrat ic Oath, the Code for Nurses, the obligation of health care personnel since there have been such, commit the doctors and the nurses to do "nothing that is not for the benefit of the patient." [The first obligation of health care is to help, especially to help the patients, or at least, to do no harm (primum non nocere).]

. Philosophical derivation: the general utilitarian obligation is to promote happiness, cause no pain, and to relieve or minimize pain where possible. This basis is most carefully set forth in John Stuart Mill's Utilitarianism, which defines Utility as the principle that supports actions insofar as they are conducive to the greatest happiness of the greatest number in the long run.

. Application: Of any procedure in question, ask yourself: Will it really help the patient? The major professional obligation that the people of a medical center have is t o practice good medicine. Do what is medically appropriate. Do

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not do what is not medically appropriate. If you are not sure what is appropriate and you try something that might be, and it is not working, stop it. In other words and specifically: You are generally obligated to initiate and continue medical treatment that is beneficial to the patient (at least under certain circumstances, and unless the patient refuses to accept it; see "autonomy," below). You are never obligated to initiate or continue treatment if, medically, it is not doing any good.

. Individualization of treatment: It is always tempting to try to lay down rules to define what counts as medical beneficence, or good treatment -- especially in the litigious climate that attends hospital care at present. We have to recognize, however, that no rules will apply in all cases. As long as each patient insists on presenting with a unique set of symptoms, diseases, and circumstances, medical and nursing care for each patient will have to be tailored to reflect that uniqueness. Rules may be convenient, but appropriate care for each patient is more important.

B. "Respect for Persons." This principle has always been universal in fields of ethics outside medicine, but was restricted when applied to the choices of a patient concerning his or her own treatment. Now it applies to that, too, in spades.

. Philosophical derivation: from the principle of autonomy advanced by the philosopher Immanuel Kant. As he stated the principle in the second formulation of the Categorical Imperative (Groundwork of tile Metaphysics of Morals), we are obligated to "treat humanity, whether in ourselves or in another, as an end withal and never as a means merely." This is generally translated as treat other persons as ends in themselves, not just as means to your ends -- even if your end is getting them well.


. Application: Of any procedure, ask: Is this what the patient wants? Patient autonomy. We have usually treated this point as an agenda for the education of physicians especially, extended to other health care personnel generally. All such must be made aware that there is a changed game in the health care centers today, a game with new rules that they must learn. The name of the game is autonomy -- freedom of choice for the patient -- and they must learn to take it seriously. We sometimes forget that the patient, especially the elderly patient, needs the same education. Patients must be encouraged to assert their own values and plans in any health care routine, to know that "doctor's orders" are only advice that the prudent should take into account without feeling bound. House staff and nurses should be taught to empower patients to assert those values in treatment, and to make the treatment choices their own. It follows that the first imperative of treatment decisions is communication. Where possible, every decision should be worked out in collaboration with the patient.

C. "Justice." Justice, or Fairness, is a universal imperative, demanding that we honor expectations and treat like cases alike.

. Philosophical derivation: Fair treatment is one of the basic conditions for life in human society, and requires first, that we acknowledge that we have duties to each other (that are the same for all), second, that we join together to spell out those duties, and third, that we perform them. As John Rawls points out in his A Theory of Justice, this principle further requires us to pay special attention to the least advantaged of the community.

. Application [1]: Obedience to law. The law may be misguided, wrongheaded, and ignorant, but it is the law, and as long as it is in place it shall not be disobeyed. Read the law. It

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requires very little of health care personnel beyond that they practice good medicine.

For a general principle, if learning the law seems bothersome: Good medicine is good ethics, and good ethics is good law. If you practice medicine according to the best principles of medicine, the law is on your side.

A t ime-honored principle of law is that a law is not law until it is tested in the courts. Our country, and our states, have known waves of hysteria in which pieces of legislation have been passed that are clearly in conflict with human rights and in derogation of the Common Law. These tend not to stand up in court, if brought to a test. No hospital enjoys being that test. While acts in flagrant violation of such legislation must be avoided, the meaning of the law should be construed very narrowly until judicial testing makes its meaning more precise.

. Application [2]: Allocation of resources. This is an administrator's problem, which under ordinary circumstances does not apply to physicians or nurses. The job of the physician or nurse is to care for the individual patient to the extent that available resources allow. The job of the administrator is to make those resources available in some orderly fashion. In this country at least, physicians do not serve as gatekeepers for access to medical resources -- at least, not on economic grounds. When physicians find themselves making allocation decisions on economic grounds (for instance, in the Newborn Intensive Care Unit), the decision process is displaced and the problem should be referred elsewhere -- possibly to the Ethics Committee.

. Application [3]: Limitation of treatment to those who can pay in order to balance the budget. Hospitals may feel pressure to do this at some point, possibly in the near future. Yet there remains the duty of service to the poor - - especially the uninsured who are not eligible


for Medicaid. Although this obligation runs afoul of attempts to put the hospital in good financial condition in a competitive market, it ought to be taken very seriously.

III. The Corporate Ethic of the Hospital

A. The commitments of the hospital. Many hospitals have, and have had since their

founding, commitments that are definitive of the institution, deriving usually from association with a religious tradition. (For instance, a Catholic hospital will be bound b y the teachings of the Roman Catholic Church on subjects of ethics, by the Ethical and Religious Directives for Catholic Health Care Facilities, as well as by the Mission Statement of the individual hospital.) Insofar as these commitments have medical ethical implications, both commitments and implications should be set forth in writing and made known to all who associate with the hospital. One of the responsibilities of the Ethics Committee is to recommend forms for stating and promulgating such commitments.

Patients will be treated without discrimination based on adherence to any such tradition, but they should be aware of those implications that apply to their cases. It is not essential that all practitioners who work in the hospital agree with all of them, but they must be able to affirm those that affect their own areas. The members of the Ethics Committee, presumably, must be able to affirm them all.

B. The hospital as an ongoing business. The hospital is, after all, an ongoing corporation,

rather like IBM. Its financial officers must concern themselves with cash flow and resource utilization; the rights of the employees must be respected and their health and safety attended to; the physician plant must be maintained and the equipment maintained at the level of the state of the art; and under whatever name, marketing activities must ensure that capacity does not lie vacant in an era of growing competition. In the course of this concern with the ethical conduct of medical and other health care activities of the hospital, the Ethics Committee must also familiarize itself with the

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increasingly rich and subtle resources of Business Ethics, in order to bring these to bear on the administrative activities of the hospital as corporation.

IV. Areas of policy development

A. Dilemmas in the management of the difficult terminal case :

. The issue of professional judgment: It follows, logically, from what was said above, that if a patient is clearly dying, and will profit no more from hospital treatment, treatment should be terminated, period, even if the family is clamoring to keep it going and seems to need much more time to heal its rifts and reconcile itself to the death. It could be argued that life support under such circumstances is not medical treatment but a very expensive placebo -- for the family, not for the patient. Yet it is not current practice to terminate life support under these circumstances. Should it be?

Consider: Health care personnel will not perform appendectomies on demand, when the appendix is healthy. Should they perform intubations on demand, when they will do no good?

. The issue of instituting, or withdrawing, artificially provided nutrition and hydration for terminal patients: at this point, legislative and judicial confusion on the ethical and legal status of these procedures is such that coherent policy is almost impossible to write. All constituencies of the hospital -- physicians, nurses, technicians (e.g. nutritionists), teachers and especially the patients and their families -- suffer grievously from the lack of clarity in this area. A clear understanding should exist on at least the following points:


a.

b.

The insertion of tubes or needles in a patient is a medical intervention, and can only be ordered by the attending physician;

The same medical and ethical criteria apply to a decision to initiate such an intervention and a decision to terminate it.

B. Innovative and Experimental Technologies

. If there is no Institutional Review Board (IRB) - - a separate and distinct committee of the hospital that reviews clinical research with human subjects in order to ensure that the subjects' rights are respected -- then the Ethics Committees must serve as such if any such research is being carried on in the hospital. This is a complex task, governed and overgoverned by Federal regulation, of which the Committee must be aware.

. All innovative medical technologies should be brought to the attention of the Ethics Committee at the time they are introduced to the hospital, to be reviewed for ethical implications and possible recommendations for formulation of policy.

C. Emerging problems in allocation of resources: With more complex technology, costs can go through the roof; with less generous national attention, the prospect of reimbursement is often uncertain. Should treatment be structured around certainty of payment? There is no easy answer, but two points should be kept in mind,

. There is no justification for ceasing to treat a salvageable patient just because the costs are out of line. Where there is a hopeful prognosis, medical personnel should treat first and look for the money later.

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V.

. Ultimately, resources are limited. Using resources on a patient who cannot be salvaged takes them away from another. Therefore the obligation to be parsimonious with hospital resources is a moral obligation, and it is always appropriate to ask, without presupposing the answer, whether a given treatment for a given patient is worth its very high cost.

It may be noted that the two points pull against each other in practice. That is how it is, and will be in the foreseeable future.

The Ethics Committee as a Resource to the Educational Function of the Hospital

A. The educational role of the Ethics Committee per se in the hospital

. Workshops as needed, on the ethical dilemmas of various areas of practice, for services and other groups.

B.

2. Publication of educational materials: policy clarifications, elementary ethics work, cases etc.

i The role of the Committee as support for other educational work in the community at large.

. As supplier of materials, personnel, and programs to help the existing educational programs of the hospital in the Community, insofar as they deal with ethical dilemmas.

a. Education on preparation for death: Living Wills, DNR orders, DNH orders, organizational resources available to the community (Concern for Dying, etc.).

b. Education on legal and ethical aspects of other current concerns in the health care field.


.

Examples: pre-natal education, AIDS education, implications of the massive consumption of drugs and alcohol, and the equally massive efforts to contain them.

As partner in curriculum development, in conjunction with other educational institutions (see below).

a. Regular courses, meeting once a week for a semester, open to the community at no or nominal fee. On its own, it is rarely feasible for a hospital to offer such courses, although it is feasible to join with local schools and colleges in the endeavor.

b. The development and presentation of workshops on particular topics of interest to the community. These have been shown to be feasible, and operate best on the presuppositions that [1] The entire community is potentially and usefully educable; [2] Education should be state-of-the-art, truthful, and nontechnical.

C. The development of literature on the hospital, its facilities, and options for treatment. Among these might be information on policies (e.g., DNR, tissue use, AIDS testing, anything else that might be of concern to patients and the community). Community information is one way that the hospital can ensure that community physicians and patients are at least aware of existing facilities in the hospital, to the end that they might feel comfortable using them.

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. As initiator in the development of networks. The Committee will do its work much more easily if it has formed working links with

a. Other hospital ethics committees;

b. Schools and colleges, from which to draw teachers and to which to offer short courses and workshops;

C° Organizations dedicated to serve one or more of the hospital's regular patient constituencies (the AARP, adolescent groups, and support groups for AIDS and a variety of handicapping conditions, for instance);

d. Community centers (parishes, synagogues, etc.);

e. Professional organizations of all health care and allied professions.

VI. Notes on troubling terms

In general, try to avoid these terms. If you must use them, the following guidelines may be helpful:

A. "Quality of Life"

In determining whether the quality of a patient's life is such that treatment modalities should be initiated or continued, withheld or discontinued, take into account:

1. The patient's own assessment, and wishes, if competent. If not:

2. Pain and anxiety. N o one who cannot understand what is going on should be allowed to suffer interminable fear or pain.


B.

. Activity. There should be a prospect for the patient to be able at some point to do something (enjoyably) to justify continued treatment.

. Relationship. The permanent absence of ability to sustain any human relationships militates strongly against any burdensome or costly medical treatment.

"Euthanasia"

We distinguish between

. Active voluntary euthanasia: directly killing a competent patient at the patient's request.

. Active involuntary euthanasia: directly killing an incompetent patient to spare him suffering.

. Passive voluntary euthanasia: withdrawing all medical interventions at the patient's request in order to let him die.

. Passive involuntary euthanasia: withdrawing all treatment modalities from an incompetent patient in order to let him die.

In all of these, the element in common is that death take place, and that it take place for the welfare of the patient (not, say, to accelerate the inheritance).

Active voluntary euthanasia is assisted suicide, and is forbidden. Active involuntary euthanasia is homicide, and is even more forbidden. Passive voluntary euthanasia is acquiescence in the patient's competent refusal of treatment (the intention to die doesn't count), and is obligatory. Passive involuntary euthanasia is simply letting nature take its course, and is forbidden, permitted, or obligatory depending on the underlying disease process, the amount of pain experienced (see above), and the prognosis.

ethics for hospital ethics committees: an introduction

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