TheThe Clinician’s Ethics Clinician’s Ethics WorkupWorkup

David A. Fleming, M.D.David A. Fleming, M.D.MU Center for Health EthicsMU Center for Health Ethics

573-882-2783573-882-2783flemingd@health.missouri.eduflemingd@health.missouri.edu

SummarySummary

• DefinitionsDefinitions

• ImportanceImportance

• BarriersBarriers

• Doing the workupDoing the workup

DefinitionsDefinitions• MoralityMorality: individual or social beliefs about : individual or social beliefs about

what is right and wrongwhat is right and wrong– CulturalCultural– ReligiousReligious– FamilyFamily– PersonalPersonal

• EthicsEthics: critical, systematic study of moral : critical, systematic study of moral beliefbelief– Arguments for a universal understanding of what Arguments for a universal understanding of what oughtought to to

be donebe done– Language of obligations, duties, rightsLanguage of obligations, duties, rights– Character, virtue, valuesCharacter, virtue, values

Moral Statement :Moral Statement : “Abortion is immoral “Abortion is immoral because I believe it’s wrong to kill another because I believe it’s wrong to kill another

human being.”human being.”

Ethical Argument:Ethical Argument: “ “Abortion is immoral Abortion is immoral because every human being deserves the same because every human being deserves the same

level of respect and no person should be level of respect and no person should be unjustly sacrificed for the welfare of another.”unjustly sacrificed for the welfare of another.”

EthicsEthics: : definedefine how we should act in how we should act in consideration of others, not how we consideration of others, not how we

feel or what we believefeel or what we believe[“Theory of action.”][“Theory of action.”]

• MetaethicsMetaethics: ultimate source of moral belief : ultimate source of moral belief based on theory, logic, meanings (“language based on theory, logic, meanings (“language games”)—reason, rationality, faith, selfgames”)—reason, rationality, faith, self

• Normative ethicsNormative ethics principles, rules and principles, rules and behavioral guides that morally justify certain behavioral guides that morally justify certain actions—actions, consequences, character actions—actions, consequences, character

ImportanceImportance• Medical technological advancementMedical technological advancement• Expectations (the rise of autonomy)Expectations (the rise of autonomy)• Regulation and accountabilityRegulation and accountability• Professional vs. business interests (market)Professional vs. business interests (market)• Medical – legal issuesMedical – legal issues• Changing demographic (aging, cultural shifts)Changing demographic (aging, cultural shifts)• Organizations and systemsOrganizations and systems• Changing relationshipsChanging relationships• AccessAccess• Decentralization of the patientDecentralization of the patient

Barriers to Moral AgreementBarriers to Moral Agreement

• Different sets of beliefsDifferent sets of beliefs• Lack of understanding (health literacy)Lack of understanding (health literacy)• Fluxuating role of the physiciansFluxuating role of the physicians• Loss of the relationshipLoss of the relationship• Complexity of health care organizationsComplexity of health care organizations• Economic influencesEconomic influences• Racial and gender biasRacial and gender bias• Defining futilityDefining futility• Inflated expectationsInflated expectations• Fear and loss of trustFear and loss of trust

Before it was the Before it was the “doctor-patient relationship”“doctor-patient relationship”

PatientPatient

OfficeOffice Hospital Hospital

DoctorDoctor

Now it’s a complex Now it’s a complex “matrix of accountability”“matrix of accountability”

Government Government PatientPatient Marketing Marketing Visiting NurseVisiting Nurse

Nursing HomeNursing Home SW, Chaplain SW, Chaplain

OfficeOffice Pharmacist Pharmacist HospitalHospital Case ManagerCase Manager

LawyersLawyers

TelehealthTelehealth StaffStaff—UR—UR, QI, RM, QI, RM

eHealtheHealthemailemail

ProviderProvider

PhonePhone

AdministrationAdministration InsurersInsurers RegulatorsRegulators

Today’s healthcare environment is Today’s healthcare environment is not conducive to trust…not conducive to trust…

• Technologically drivenTechnologically driven• Decisions to withhold or withdraw TxDecisions to withhold or withdraw Tx• Patients and families often demand: “do Patients and families often demand: “do

everything possible”everything possible”• Access to informationAccess to information• Transparency and error reportingTransparency and error reporting• Economic and time constraintsEconomic and time constraints• ““Doc for the day”Doc for the day”• Expect restitution if things “go wrong”Expect restitution if things “go wrong”

Ethics WorkupEthics Workup

What is the right and good decision for this What is the right and good decision for this patient?patient?

Why?Why?

Who (or what) decides?Who (or what) decides?

Resolving conflictResolving conflict

The Ethics Workup The Ethics Workup (EOL)(EOL)

• Clinically relevant facts?• What options exist?• What should be done, and why?• What is the ethical dilemma (conflict)?• Who are the stakeholders?• How will they be impacted?• Who ultimately decides?• What action(s) should be taken?• Can it be implemented?• If not—why, what other options exist?

What are the clinical facts?What are the clinical facts?

• DX: treatable, preventable, risks, how many systemsDX: treatable, preventable, risks, how many systems• Prognosis?Prognosis?

– Short and long term for the underlying conditionShort and long term for the underlying condition– Short and long term for each proposed Short and long term for each proposed

interventionintervention• Patient preferences?Patient preferences?• Age?Age?• Financial concerns have no place at the bedside in Financial concerns have no place at the bedside in

considering individual patient welfare, unless those considering individual patient welfare, unless those of the patient.of the patient.

• What choices are being considered?What choices are being considered?• Psychosocial components?Psychosocial components?

What options existWhat options exist

• WH/WD vs. aggressive treatment (DNR)WH/WD vs. aggressive treatment (DNR)

• Palliative care and hospicePalliative care and hospice

• Limiting freedom and privilegesLimiting freedom and privileges

• Risky or minimally beneficial TxRisky or minimally beneficial Tx

• Treating without expressed permissionTreating without expressed permission

• Changing providers or institutionsChanging providers or institutions

What are the ethical concerns as What are the ethical concerns as perceived by the key stakeholders?perceived by the key stakeholders?

• Futility?Futility?– DNR/DNI, WH/WDDNR/DNI, WH/WD

• Informed decision-making?Informed decision-making?– Capacity?Capacity?– Surrogate or HCD?Surrogate or HCD?

• Undue risk or suffering (burden > benefit)Undue risk or suffering (burden > benefit)– By whose definition of “quality of life”?By whose definition of “quality of life”?– Double effect?Double effect?

• Fair and dignified treatment?Fair and dignified treatment?

Conflict?Conflict?

Who are the stakeholders and how are Who are the stakeholders and how are they impacted?they impacted?

Why is there conflict?Why is there conflict?

What is the nature of the conflict?What is the nature of the conflict?

What are the objections to the choices What are the objections to the choices being considered?being considered?

Can it be resolved?Can it be resolved?

Who decides?Who decides?

• PatientPatient

• Surrogate (family)Surrogate (family)

• HCD (written or verbal)HCD (written or verbal)

• Providers (team)Providers (team)

• CourtsCourts

• otherother

Clinical option(s) in the best Clinical option(s) in the best interest of interest of thisthis patient? patient?

• Ethical reasons for and againstEthical reasons for and against

• Is conflict resolvable?Is conflict resolvable?

• Is compromise possible without loss of Is compromise possible without loss of personal or professional integrity?personal or professional integrity?

• If not…If not…– Physician may be dischargedPhysician may be discharged– Physician may withdraw as soon as Physician may withdraw as soon as

another is employedanother is employed

Can the decision be Can the decision be implemented?implemented?

If not, why?If not, why?– Physically impossiblePhysically impossible– Irresolvable conflict among decision-Irresolvable conflict among decision-

makersmakers– Moral boundariesMoral boundaries

Ultimately…Ultimately…• If no other physician is available or none If no other physician is available or none

agrees to take the case, the physician of agrees to take the case, the physician of record is not ethically obligated to record is not ethically obligated to compromise his/her professional or moral compromise his/her professional or moral integrity.integrity.

• The physician is not obligated to help the The physician is not obligated to help the patient or family find another physician or patient or family find another physician or facility to do what he/she feels is immoral facility to do what he/she feels is immoral (moral complicity). (moral complicity).

CaseCase37 yo WF with metastatic breast cancer (CNS, 37 yo WF with metastatic breast cancer (CNS,

liver) has decided to refuse further liver) has decided to refuse further chemotherapy after her second recurrence. chemotherapy after her second recurrence. You feel she has full decision making You feel she has full decision making capacity. On evening rounds she informs capacity. On evening rounds she informs you and the nursing staff that she does not you and the nursing staff that she does not want to be treated aggressively, intubated or want to be treated aggressively, intubated or to undergo cardiopulmonary resuscitation to undergo cardiopulmonary resuscitation should she deteriorate. You concur based should she deteriorate. You concur based on her prognosis, recording this on her prognosis, recording this conversation in the medical record. Several conversation in the medical record. Several hours later she lapses into coma and is hours later she lapses into coma and is responsive only to deep tactile stimuli. responsive only to deep tactile stimuli.

The next day, the patient begins to show signs The next day, the patient begins to show signs of impending respiratory failure. Her husband of impending respiratory failure. Her husband arrives and notices her declining condition and arrives and notices her declining condition and asks what you plan to do. To your surprise, asks what you plan to do. To your surprise, when you explain and relate the content of when you explain and relate the content of your conversation with his wife he states that your conversation with his wife he states that he believes that she is too ill and disabled to be he believes that she is too ill and disabled to be capable of deciding about her treatment and capable of deciding about her treatment and would “not want to leave her two daughters would “not want to leave her two daughters without a fight”. He demands that she be without a fight”. He demands that she be treated aggressively, and that she undergo treated aggressively, and that she undergo CPR efforts and be intubated and sent to the CPR efforts and be intubated and sent to the intensive care unit, should she arrest.intensive care unit, should she arrest.

The appropriate course of The appropriate course of action would be to…action would be to…

Clinical FactsClinical Facts

• Prognosis: Prognosis: – end stage chronic diseaseend stage chronic disease– ? reversibility of her acute process? reversibility of her acute process

• Patient expressed preferencesPatient expressed preferences– Verbal HCDVerbal HCD– Clear and convincing?Clear and convincing?

• Decision-making capacityDecision-making capacity• Degree of suffering now and futureDegree of suffering now and future• She has a family…She has a family…

OptionsOptions

• Treat and resuscitateTreat and resuscitate– ““LIVE TO FIGHT ANOTHER DAY”LIVE TO FIGHT ANOTHER DAY”

• Palliative care and comfort pathwayPalliative care and comfort pathway

• ““Partial” treatmentPartial” treatment– treat sepsis but DNR/DNItreat sepsis but DNR/DNI

• Transfer careTransfer care

What is the ethical dilemma?What is the ethical dilemma?• Respecting patient autonomy vs. the Respecting patient autonomy vs. the

surrogate’s right to decidesurrogate’s right to decide– ? Impaired surrogate decision-making? Impaired surrogate decision-making

• Obligations to the patient vs. the familyObligations to the patient vs. the family• Are there obligations to treat treatable Are there obligations to treat treatable

conditions? (benefit > burden)conditions? (benefit > burden)• Are there obligations to “make sure” the Are there obligations to “make sure” the

patient would to want not to be treated?patient would to want not to be treated?• Legal concerns and the system’s integrityLegal concerns and the system’s integrity

StakeholdersStakeholders

• PatientPatient

• Husband, family, friendsHusband, family, friends

• ProvidersProviders– Professional integrityProfessional integrity

• SystemSystem

Who decides?Who decides?

• Patient (?competency)Patient (?competency)

• Husband (?valid surrogate)Husband (?valid surrogate)

• You…You…

• (courts)(courts)

What should be done?What should be done?-ethical arguments why-ethical arguments why

Can it be implemented?Can it be implemented?

If not…why?If not…why?

SummarySummary• Conflict is often unavoidableConflict is often unavoidable

• Seek compromise without breaking Seek compromise without breaking moral boundariesmoral boundaries

• It’s a longitudinal process, not an eventIt’s a longitudinal process, not an event

• Effective communication is the keyEffective communication is the key

• If compromise is not possible transfer If compromise is not possible transfer of care may be necessaryof care may be necessary

• ? Risk management? Risk management