the development of an ethics consultation service

H E CFORUM, Vd. 2. pp. 75-87. 1990. 0956+2737]90 $3.00+.00 Prir~ted in the USA. All rights reserved. Copyright © 1990 Pergamon Press pie

T H E D E V E L O P M E N T O F A N E T H I C S

C O N S U L T A T I O N S E R V I C E

STEPHEN WEAR, Ph.D.

PAUL KATZ, M.D.

BARBARA ANDRZFAEWSKI

TIRTADHARYANA HARYADI, M.D.

INTRODUCTION

From the beginning of their growth in the United States, it has been recognized that one of the three primary functions of hospital ethics committees (HECs) was ethics consultation, along with education and policy formation. (1) Concurrently, in the absence of or distinct from institutional ethics committees, ethics consultation is increasingly being provided in our health care institutions, in some cases from more traditional sources in institutional hierarchies, e.g. administration, legal counsel or clergy, in other cases by individual ethics consultants specifically hired for this role. (2) Ethics consultation has arrived.

This arrival has not occurred, however, without a great deal of concern and, increasingly, dispute over its character, basic, and the sort of personnel who should be allowed to provide it. (3) One basic issue is whether there is actually some sort of expertise that can justify such a function. Given the pluralistic nature of our society, and the subjective, value-charged character of ethical issues, one can hardly claim that there is a straightforward analogy to traditional consulting where a general practitioner calls in a specialist for advice about a particular aspect of a patient's management. Correlatively, if there is some sort of expertise available, one must wonder what it is, and what sort of individual can provide it. Here, to the extent we are talking about "ethical" issues, philosophers, lawyers, and clergy may advance claims to some sort of expertise. But we are equally speaking within the context of the medical management of a patient, and thus physicians

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76 S. Wear, P. Katz, B. Andrzejewski, T. Haryadi

have argued that only they can function within such an environment and provide such consultations.

Necessity being the mother of invention, however, ethics consulting is increasingly occurring in one form or another in the absence of consensus or detailed specification regarding its appropriate nature, grounds, or the characteristics of those who shall provide it. Further procedural and substantive issues have thus arisen (2): What form should such consultations take? Do they involve standard consulting activities such as chart review, the examining and interviewing of patients, and specific recommendations as to management and resolution? Or should the identification and

alternative courses of physician then weighs? such consultants have, institutional policy and

they be restricted to more Socratic functions - clarification of issues, with the provision of action and perspectives which the primary Also, what sort of authority and discretion do if any? Are they only to represent clear remain silent in the "gray area" cases, or can

they, on the floor in the heat of the moment, assist in devising resolutions to dilemmas to which the institution and/or the law has not clearly spoken? Finally, given that a HEC can not usually respond in a timely fashion to emergent cases, what is the relationship between such committees and the consultants? The latter could simply represent the former as an initial fact-finder, perhaps speaking to clear, previously determined issues. Or the consultant could, in varying degrees, make determinations without reference to the HEC, perhaps providing it with retrospective review for its input as well as towards enhancing its educational and policy-making functions.

We have been engaged over the last few years with developing an ethics consultation service at a major urban hospital and have been forced to wrestle with such issues. In what follows we do not presume to offer a detailed model for any such ethics consulting. Aside from believing that much debate and experience will need to precede any such formulation, our own experience strongly suggests that any such model will need to be substantially tailored to the particular needs, mission, resources, and politics of the specific institutions in which such consulting occurs. We will, however, offer a description of the ways that our service has developed as numerous problems, pitfalls, and opportunities have arisen. This development has occurred in three major stages, the perceived objectives and problems of which we will now detail in an effort to clarify the resultant consultative model that we now have in place.

THE OMBUDSMAN

Our efforts in this area began with an invitation from the chief of

The Development of an Ethics Consultation Service 77

medicine to an academically-based philosopher to come and function as an ombudsman on the medical service of our hospital. The relationship between the service chief and the philosopher was that of senior to junior faculty member in the Department of Medicine of a major medical school wherein the philosopher had been offering instruction in medical ethics and humanities for a number of years. In part, then, this invitation served to increase the pedagogical access of the philosopher to residents and medical students during their clinical years.

A. Objectives

Numerous functions of the ombudsman were initially identified, though in a rather vague and fluid fashion. The term of ~ombudsman ~ was not primarily seen as incorporating a patient advocate function as it sometimes does. Rather, the model derived from literature in liaison- psychiatry (4), where the ombudsman was conceived as a consultant to staff regarding ethical and psychosocial issues that arise on the wards. Contact with patients and families was envisioned from the start, but it was not determined that the ombudsman would be independently available to them (as HECs often are) beyond his consulting at the request of staff members. Other initially perceived objectives included: [1] enhance staff identification and discussion of moral issues; [2] address and attempt to resolve disputes between patients, families and staff, or between various staff members or groups, e.g. between nurses and physicians; [3] consult on "problem ~ patients, e.g. the non- compliant, destructive, or disruptive patient; here the concern was to provide an impartial source of negotiation and problem resolution; and [4] assist in identifying and resolving residents' and nurses' problems in an institution where such realities as understaffing and over-utilization had tended to make such problems particularly acute.

Chart entries and recommendations for the management and resolution of problems were offered by the ombudsman from the start, though such input was usually discussed with the chief of medicine beforehand. Consultations occurred only at the specific request of members of the staff - in most cases, the residents and attending physicians.

B. Issues anti problems with this approach

Although the philosopher had been a medical faculty member and had participated in clinical education for a number of years, it soon became apparent that he was not adequately prepared to address the objectives envisioned by himself. It is one thing to offer lectures about

78 S. Wear, P. Katz, B. Andr'zejewski, T. Haryadi

major bioethical issues, e.g. regarding the distinction between withholding and withdrawing treatment, or to lead discussions about paradigm cases where the facts are known and relatively simple. It is quite another to approach a complex, evolving individual case where pivotal issues such as the patient's diagnosis and prognosis may well be uncertain, in dispute or evolving, where possibilities, probabilities and alternatives complicate the picture, and where inherently ethical judgments are presented as straightforward medical judgments, e.g. when surgery declares the patient is "not a candidate" for a certain procedure. The ethics consultant is thus forced to function within the vagaries and uncertainties of the overall medical management of the patient, far from the comfortable simplicity and static character of the classroom case. He or she is thus faced with the *ethics of moving targets * and a valid consult must key to the variables involved. In sum, the consultant must think like and function as a clinician, identifying and interpreting the relevant facts and possibilities that are embedded in an often quite complex ~clinical picture" (2).

Other difficulties and inadequacies of the sole, non-clinician approach soon presented themselves. Often the issues of whether the patient was competent or not was pivotal to the case at hand; aside from the fact that the philosopher could not make such a determination, he also had no firm conception of when competence was an issue and when a psychiatric consult should be called. This difficulty was aggravated by the fact that often the patients involved in the consults were borderline cases as far as competence was concerned, neither obviously "with it * nor "out of it". Another major problem arose in that any consult arguably generated a precedent of sorts over how similar cases should be treated. Often, in fact, discussions of certain cases ensued which involved institutional leaders and counsel, and policy was implicitly generated. But it is surely insufficient for such policy to exist only in one person's head, generated in an ad hoc fashion by those the consultant happened to consult with, and without the input of other institutional entities that have a stake in and therefore should have input into such implicit policy.

The final problem, though remediable with the passage of time, was that the philosopher was new to the institution - he was thus an unknown factor to the staff and without credibility. This problem equally meant that he lacked the contacts in the institution regarding who should be consulted and who could "get things done".

These problems rapidly led to a change in the consultation model in a number of ways, the first major change being that other individuals were enlisted to form a consultation team.


T H E OMBUDSMAN CONSULTATION TEAM

Given the previous problems, particularly regarding the actual response to and evaluation of individual cases, three other individuals were soon formally invited to join in a team approach to ethics consulting at our hospital. All three individuals had been informally involved in such consultations early on, given their skills and institutional functions. The philosopher continued to be the initial contact person for consultation requests, but these other individuals often took over major aspects of certain consults depending on the nature of the case.

An internist was added to the team particularly to enhance the "clinical" approach of the consults. This approach included not only making sure that the consults were appropriately keyed to the realities, variables and options in the case, while in process, as well as in any recommendations that ensued, but also in the initial fact-finding and clinical interpretation of the case. This latter function, in fact, was increasingly recognized as often crucial and, rather to our surprise, often was sufficient for resolving the problem that had initiated the consult in the first place. In effect, we have found that many ethics consults can be brought to an acceptable conclusion by generating a consensus about what the patient's situation and prospects actually are; often disagreement or confusion over the facts was at the heart of the problem that led to the request for consultation.

A psychiatrist specializing in liaison-psychiatry was the second addition to the team, a natural development as he was often called in to do the competency assessments. A further common reality to our consults also necessitated his broader participation in our activities; given that we often were called to evaluate treatment refusals by patients of borderline mental capacity, his assessment had to be informed by the details of the case. This is so for in our jurisdiction, as in most others, the assessment of competency is not a global assessment of overall mental capacity and insight, but rather a specific evaluation of whether the patient has sufficient knowledge and insight to refuse the specific intervention at issue (5). This specific "to the task" sort of competence can thus be sufficiently present in a given patient even though he or she is mentally impaired or incompetent in other areas. In effect, the competency assessment thus needs to be specifically keyed to and informed by the very issues and realities to which the ethics consult is responsible. Finally, in a significant number of cases, some form of counseling was indicated for the patient or family; often this was a primary recommendation of the ethics consult, and the psychiatrist was thus already on the scene so that he might


either provide such counseling or arrange for its provision by his colleagues.

The final addition to the team was the administrative assistant to the chief of medicine, who is also a military trained medic. Again this addition developed naturally in that she was, from the start, assisting with coordinating consult requests and responses, identifying personnel who could assist the process, and participating directly in consults particularly when nursing staff were significant players in the case. We have, in fact, found that for reasons of consistency of care in a teaching hospital, as well to gain an adequate understanding of the patient's situation and prospects, that nursing input is almost always needed during the process of the consult; equally, they should generally be active participants in any attempt at reaching a consensus.

A. Further objectives

Particularly as the team grew into a functioning unit, stimulated by discussion of and response to individual cases, the previously mentioned problems and limitations of the single, non-clinician consultant generally evaporated. Formal team consultation summaries were provided in certain cases, not solely as recommendations to staff but also toward formally "making the case" in the chart in controversial areas. This provision of a formal statement of the facts of the case and, especially, the reasons for the approach advocated, was often a basic function of the consult. This is so as there were often a number of other reasons why the consult was requested in the first place. Often, the real issue for staff was not what proper management was; on this issue they were ofteh fairly clear from:the start. Rather, the staff was concerned~ ~ to whether their intended management was legally permissible, at risk of suit, or was congruent with institutional policies and philosophy. "Making the case" in the chart, providing concurring opinions as to the patient's situation, prognosis and competence, conferring with institutional counsel when needed, and obtaining support and authorization from the institutional hierarchy, all became significant objectives of our consultations.

B. Issues and problems with this approach

The main deficiency that this team approach continued to suffer was that certain rules of thumb were being developed as individual cases were dealt with, but such informal policy was not being adequately formalized, disseminated, or critiqued within the institution. It was quite clear that the four members of the team, and those individuals they contacted as issues arose, did not constitute an adequately


representative forum for such policy appraisal and generation. It was not felt that all the findings of our consults had to be turned into formal written policy; much of this was felt to turn on the details of the individual case. Flexibility and discretion for staff was seen as desirable, bolstered by the rapid response capability of the team. But it was equally felt that certain generic guidelines were emerging and that these merited formal consideration, statement, and dissemination among the staff.

The resolution of this problem was seen in the formation of a H EC with a broad institutional base and representation. Given that, at the time, HECs, not individual consultants or small teams, were being heralded as the vehicles for dealing with ethical issues in our institutions, (6) this was also seen as a necessary further step.

T H E INSTITUTIONAL ETHICS COMMITTEE

The need to form an institutional ethics committee was thus driven primarily by policy considerations, viz. the need for a broader, more representative body to pass on implicit guidelines that had been emerging from our consults, and to formalize such guidelines to the extent appropriate. Educational objectives were also to be made more effective and institution-wide by the broader membership. Finally, it was hoped that such broader representation would enhance the political status and usage o f the consulting service within the institution. The relation of the committee to the consultation activities was not initially addressed; the shared feeling was that the committee's role in direct consultation would evolve as the committee pursued the other educational and policy agendas.

A. Issues and objectives

1. Size: some sentiment existed to keep the committee size small, i.e., from six to eight people, particularly by those who envisioned the committee as eventually assuming the consultative function of the ombudsmen team. This view did not prevail, however, for a number of reasons: [1] even a small committee would not be available for consults on the floor in the immediate fashion already provided by the ombudsmen team, so some sub-group would still have to be identified to represent the committee even if it did come to take over the consultative functions; [2] the policy agenda that called for such a committee would not be adequately met by such a small group; much broader institutional representation was clearly called for; [3] it was felt that no matter how carefully individual members were chosen, a certain number would not prove to be active, effective participants and thus a


larger number were appointed to the committee so that true participants, and those "along for the ride", could be identified in practice and adjustments subsequently made; and [4] certain individuals, because of interest, expertise, or political status in the institution, were seen as entitled to initial appointment, beyond whatever representational function they served. Eventually about two dozen individuals were appointed, about half of whom have become regular and involved participants. On going new appointments and deletions are being made.

2. Institutional Status of the Committee: in other hospitals in our area, as well as nation-wide, such committees have been constituted with different sorts of institutional allegiances and connections. (7) Some are constituted by and report to the board of trustees of the institution, others to the chief administrative officer. All concerned with the formation of our committee seemed agreed that we should be a committee of the medical staff, constituted by and responsible to the clinical executive board and chief of staff of our institution. In part, this view was based on the prior source of support for our activities, i.e., considerations also seemed to dictate that we be primarily a medical staff committee: [1] to the extent we had achieved an actual clinical presence and effect, this was because we had been called to this by individual staff members who were increasingly able to see us as at their service, not as "watchdogs" or external moral authorities who would descend on them with different agendas than those of the individual practitioner and patient; [2] aside from issues of perception, we also took the philosophical view that good ethics has to be fundamentally clinically based and driven; this orientation will surely not rule out disputes or the need to reflect on and enhance the nature of practice, but at least it functions on the cutting edge and may remain relatively unalloyed with administrative considerations that pivot more on the care of groups of patients and the functioning of services, rather than the needs of individual patients; and [3] it was felt that there are certain damage-control and political considerations that an administration-based committee would be too concerned with, as well as scarce resource issues where patients are most in need of representation and protection.

3. Specific Members: given the above, physicians were well represented on the committee, but so to were nurses and social workers, with an attempt to draw the latter from services that were not already represented by the physicians. Although not an administration committee, a couple of administrators were also selected to represent its point of view, e.g., an individual from quality assurance. Committee


minutes and recommendat ions are also regularly submitted to the director of the institution as are specific policy formulations which are ultimately promulgated by him, on our recommendation, through the clinical executive board and the chief of staff. Further, the legal counsel to our institution was appointed to the commit tee due to the increasing amount of legislation, regulations, and court precedents that form a major background to almost all ethical decisionmaking in our institution. Finally, a couple of clergymen who regularly attend at our institution were appointed to the committee, given both their interest and traditional involvement in the sorts of issues that we would face.

B. Fur ther issues and problems

Once the ethics commit tee had been established, its initial function was that of self-education, through discussion of readings in the bioethics literature, as well as the consideration of paradigm cases. This self-education continues, now augmented by the consideration of policy recommendat ions on basic bioethical issues that arise in our institution. This second focus resulted in a comprehensive new "limitations of treatment" policy which includes both do-not-resuscitate (DNR) and do-not- intubate (DNI) orders as well as orders that limit t reatment in non-arrest situations.

While addressing such educational and policy agendas, the consultative function has mainly been retained by the ombudsmen team as in the past, with no clear decisions as to commit tee review and participation in such consultations. Such participation and review has, however, slowly evolved, the resulting structure of which we will now describe.

T H E E V O L V E D C O N S U L T A T I V E M O D E L

It would seem clear that any ethics commit tee that presumes to provide any sort of direct consultative function must wrestle with the issue of who shall provide this function. Equally, it will have to determine what sort of discretion, if any, this individual(s) will have on the floors short of a full commit tee consultation (3). Some committees allow little if any discretion here, but at least would seem to need to devise a mechanism by which initial consultation requests are screened for their appropriateness by some individual. Equally, some cases are so routine, or analogous to previously determined cases, that someone short of the full commit tee should be authorized to speak to them.

F rom the start, however, the ombudsmen team has provided floor consults where resolutions or further interventions are often conceived on the spot, with little or no further institutional consultation or

84 S. Wear, P. Katz, B. Andt'zejewski, T. Haryadi

hierarchical approval. With the subsequent addition of a full ethics committee, and the perceived value of such an institution-wide, rapidly available consultative mechanism, our issue was thus not whether it would continue but how the broader expertise and perspective of the committee might be injected into it, without turning such consulting into a cumbersome enterprise that would take hours or days to respond to consult request, and could be crippled by the sorts of well-known problems that committee decisionmaking is prone to, e.g., endless debate and, not seldom, indecision (8). The following strategies have been instituted:

A. Retrospective case review by the committee

It was decided the ombudsmen team would remain a separate entity that would continue to provide floor consults and, in most cases, retain the authority and discretion it had previously enjoyed in offering advice. In most cases, input from the committee into this process would be in the form of retrospective review of cases addressed by the ombudsmen team in the form of case summaries presented to the committee, all stripped of any identifying information regarding the individual patient or staff involved. Such case summaries, usually a page or two in length, are now pre-circulated to committee members before each monthly meeting. This pre-circulation is deemed necessa~ as there are often numerous cases each month, some of them quite routine as far as institutional policy are concerned. Committee members thus may preview the cases and have the option of raising questions about their findings and implications, either at the full committee meeting or privately with ombudsmen team members. Committee members also have the option of simply sending memoranda to ombudsmen team members about their concerns and insights without actually addressing such cases in the meetings, which have other agenda items beyond such retrospective review. As time has passed, an increasing number of cases are not discussed at all, given their routine character, or the fact that the issues they raise have already been discussed and spoken to by the committee.

B. Fur ther poss~le consultative functions o f the committee

Even with this retrospective review model, it was envisioned that there might be certain types of cases that the ethics committee might want to designate as always requiring full committee review. Thus far, no such cases have actually occurred. A more informal arrangement has evolved whereby the chair of the ethics committee (who is not a member of the ombudsmen team) is often advised of current cases and


has, in various instances, become involved in the cases on behalf of the ethics committee. Three paradigms of such cases have emerged: [1] those cases where a general consensus among the principals of the case may well not emerge and thus a full meeting of the committee will be called prior to resolution as a way of fashioning an institutional position; [2] cases where the resolution, however agreed to by all the principals and the ombudsmen team, is seen as politically or legally controversial, and thus meriting the formal awareness, input, and response of the full committee; and [3] those cases that may well not be resolvable internally but will be taken by institutional counsel for judicial review; certain types of cases in our jurisdiction, e.g. discontinuing life-sustaining mechanical ventilation on an incompetent patient whose prior statements about such an act are not fully clear and specific, are seen by our counsel as necessitating judicial review, regardless of the strength of agreement of the , principals, the ombudsmen team, or the ethics committee. Another type of case where full committee review will be necessitated has also been envisioned, viz. where one of the principals in the case remains dissatisfied with the resolution fashioned and demands such a review by the full committee. In this vein, our institution offers formal ethics consultation only through the ombudsmen team, not the ethics committee, to staff, patients, and family members. We simply anticipate that full committee review might be demanded by a principal at some ~0int, and this demand might well be honored even though it is not provided for in our institutional policy. Finally, the ombudsmen team has the option of calling for full committee review in any particular case, either for the above noted reasons or because the team simply does not feel that it can adequately address or resolve the issue at hand.

This sort of retrospective review model has been in effect at our institution for about six months, and, rather to our surprise, none of the preceding special conditions has actually occurred and thereby necessitated a formal committee review prior to resolution. Though the chair of the ethics committee has been repeatedly prepared for such possibilities, sufficient consensus has always been eventually achieved between the principals; moreover, alarmingly controversial resolutions have not been necessary, nor has judicial review. Various insights and concerns of ethics committee members have, however, modified the approach and sorts of findings that the ombudsmen team has been offering. These results are considered simply fortuitous, but also reflect our commitment to respond and provide support to the principals on the wards in an immediate way, rather than allow an over-cautious or complicated approach to undermine this rapid response capability.


SUMMARY REMARKS

It is hard to say what counts for success in this area. Ethics consultants and committees are not yet subject to peer review and quality assurance mechanisms, nor is it clear what these would be if instituted. Staff and administrators have repeatedly praised our efforts, and our institutional support and involvement continue to grow. Significantly, a number of residents and attending physicians, who also function in other area hospitals, have reported their sense that ethical issues are dealt with in a more effective and flexible way at our institution, with considerable institutional support and resources being available as needed. Recently it has been noted that many ethics committees across the country still seem to receive few actual consult requests (9); we have averaged over a half dozen a month for a couple of years, often receiving over twice that number (not counting routine queries regarding legal guidelines or institutional policies). In addition, the comprehensive "levels of treatment" policy generated by the ethics committee is continuing to be well-received and observed, and has not needed any significant modification since its promulgation over a year ago. Finally, as noted, we have been able to resolve all problems on the floor to the satisfaction of the participants, without the need for formal committee review or judicial review.

As mentioned, we do not believe that any one model of ethics consulting is appropriate for all forms of institutions. The preceding details many of the specific considerations and problems that affected the development of our own model. Other implicit factors that are likely to affect any such development also merit mention: [1] the potential for excessive concern regarding "damage-control" issues in the particular institution; here we believe we have been quite successful in minimizing the effect of such concerns, e.g., we generally aim at the most ethically justified resolution regardless of the risk of suit; [2] the support and availability for specific consultation by members of the institutional hierarchy will always be a pivotal factor; we have enjoyed close support and cooperation from the institution's director, chief of staff, counsel, and service chiefs, without which little of the preceding would have been feasible (or permitted); and [3] informal cooperation and understanding between the consulting team and the ethics committee will always be necessary if the flexibility and discretion we enjoy is not to be undermined by "red tape", turf battles, and mistrust. It would be disingenuous to leave the impression that we have not labored under such problems, but thus far they have been resolved in favor of the effective and efficient consultation model that we have described.


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R E F E R E N C E S

Cranford, RE and Doudera, E. 'q'lae Emergence of Institutional Ethics Committees," Law Medicine and Health Care; 12, No. 1 (February 1984), 13-20. La Puma, J and Toulmin, SE. "Ethics Consultants and Ethics Committees," Archives of lnternal Medicine; 149 (May 1989), 1109-12. Seigler, M. "Ethics Committees: Decisions by Bureaucracy", Hastings Center Report; 16, No. 3 (June 1984), 22-24. Strain, JJ and Hamerman, D. "Ombudsmen (Medical-Psychiatric) Rounds",Anna/s of Internal Medicine; 88, No. 4 (April 1978), 550-55. State of New York Public Health Law. "Orders Not To Resuscitate"; Senate 413A/Assembly 678A; Section 2963-64; pp. 3-6. Rosner, F. Hospital Medical Ethics Committees: A Review of Their Development", Journal of the American Medical Association; 253, No. 18 (May 10, 1985), 2693-97. Fost, N and Cranford, RE. "Hospital Ethics Committees: Administrative Aspects", Journal of the American Medical Association; 253, No 18 (May 10, 1985), 2687- 92. Lo, B. "Behind Closed Doors: Promises and Pitfalls of Ethics Committees", New England Journal of Medicine; 317, No. 1 (.July 2, 1987), 46-50. Cohen, CB. "Is Case Consultation in Retreat?"; Hastings Center Report; 18 (September 1988), 23.

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