Dialogue: Who does the ethics consultation serve?

Winter 2004, Vol. 11, Issue 1

An ethics consultation service is supposed to do just that - to provide a service. When I receive a request for an ethics consultation, whether from a member of the health care team (most commonly), or from a family member or directly from a patient, my first question to the requestor is, "How can I be of help?" The conversation that ensues is intended to help me articulate "the ethics question" that will appear prominently at the beginning of the typed ethics consultation report, part of the patient's permanent record. This is often the most difficult part of the entire consultation process because the person making the request commonly perceives some distress, or discomfort or conflict, but may not be able to articulate a classically understood ethical dilemma.

Notice that I did not open the consultation by asking, "How can I help you?" but "How can I be of help?" There is a subtle difference. The former would imply that the ethics consultation is expected to, or even intended to, serve the requestor. While that is often the case, sometimes the service the ethics consultant provides is for another of the three entities mentioned (team, family, patient), or even for "ethics" per se.

David Ozar has clearly articulated six potential values of an ethics consultation ("The value of an ethics consultation," Lahey Clinic Medical Ethics, Fall 2003). This expansion on James Rest's components of morality ¹ is useful in understanding the process of consultation and is also affirming for the ethics consultant. In his essay, however, Ozar says something that some professionals and some patients or families may find quite surprising: "Ethics consultations are done for the sake of decisionmakers, to help them in their desire to make the best ethical decisions they can, not for some more abstract purpose." The ethics consultant must occasionally point out that the course of action proposed or chosen by the decision-makers is outside the bounds of accepted ethical standards. They may not be thrilled that "the best ethical decision" is not the decision they would make, and thus they might construe that the consultation was not done for their sake, but for the sake of some abstract purpose.

While I agree with Ozar that the ethics consultant must not be perceived to be either the ethics police or the ethics judge, proclaiming "Thou shalt... " or "Thou shalt not... " there are occasions when the ethics consultant must articulate standards and must try to ensure that these standards are met. For example, if the parents of a newborn girl with duodenal atresia refuse consent for standard life-saving surgery because the infant also has Down's Syndrome, and they request an ethics consultation to support their claim of parental discretion, the consultant is obligated to support the professionals and serve the infant by protecting her from this unethical request.

Some ethicists believe the ethics consultant should always maintain a neutral stance, acting only as a mediator in resolving conflict. In contrast, and more correctly in my estimation, Marsha Fowler has said the ethicist should "... analyze the case, explore acceptable alternatives and exclude wrong options." ² The ethicist is sometimes obligated to establish some boundaries, such as that options A and B are ethically permissible, but option C is outside the bounds of accepted practice.

Dennis deLeon and I have argued elsewhere that the role of the ethics consultant varies in conflict resolution, serving in the three different roles understood in alternative dispute resolution, or sometimes serving a role not clearly representing any of these. ³ Sometimes the consultant does act as a mediator - facilitating the discussion, reframing the question, helping the parties develop creative alternatives. At other times he or she acts as a negotiator, actually "taking sides" after thoroughly evaluating a dispute and determining that one perspective is morally obligatory, then trying to persuade the other party to understand and relent. In other situations, the consultant is called in as an arbitrator to give guidance about the substance of the dilemma. Sometimes the ethics consultant changes roles as new information comes to light. And sometimes the ethics consultant "serves" without clearly fitting into any of these three roles.

The roles - mediator, negotiator, arbitrator - vary in at least two different ways. They vary first in the issue of partiality. The mediator enters the discussion as an impartial third party and remains neutral as he or she guides the process. The negotiator enters the discussion at the behest of one party to act as his or her advocate, and is thus partial from the outset. The arbitrator, on the other hand, is invited in by both parties to be an impartial analyst of the situation, ultimately giving an opinion as to the merits of both parties, and often "taking sides" at the conclusion.

The roles vary also in terms of standards. The mediator applies standards of process, insisting that both parties have a fair hearing, encouraging each to present his or her argument as clearly as possible, searching for common ground or helping create a new solution, etc. The negotiator applies personal or professional standards in deciding whether to accept the request to advocate for one side, but once he or she accepts that role, pursues that goal with dedication. The arbitrator is expected to apply external standards of substance - standards that may come from medicine, ethics or law.

While I believe Ozar's statement that ethics consultations are done for the sake of the decision-makers is most often correct, there are situations where the consultant (or committee) may be called upon to advocate for the patient who no longer has capacity to participate in the decision at hand. At other times, the consultation may articulate standards of ethics that may run counter to the wishes of one or more of the decision-makers.

Measuring the value of ethics consultation

When researchers are trying to measure the value of a particular intervention, they must choose an objective end-point, most often mortality, morbidity, quality of life or cost. Assessing the value of ethics consultations is not so easy or precise. The end-point most often chosen in such research is satisfaction - satisfaction of the professionals or satisfaction of the patient or surrogate. It is an interesting curiosity that health care professionals have generally found ethics consultations more helpful (71-90% of the time) than have patients or surrogates ( 57%). ⁴ In our earlier study, one family member queried about the usefulness of an ethics consultation done a few weeks earlier said, "The doctors and nurses may have found it helpful, but we didn't see the need for it."

Recently a multi-center study expanded the research to include cost and resource utilization. In a randomized comparison, Schneiderman, et al found that ethics consultations were associated with reductions in hospital days, and in the use of life-sustaining treatment without affecting mortality. ⁵ Their study again found that 90% of professionals and 80% of families found the consultations helpful.

The disvalue of ethics consultation

After providing bedside ethics consultations for about 15 years, I have a nagging concern about a potential problem with this whole endeavor. Mark Siegler, director of the fellowship program where I learned how to do ethics consultation, said at the end of our training, "You should work yourselves out of a job.

Teach clinicians how to properly struggle with these ethical dilemmas so they will not need to request future consultations." I think that does actually happen in some settings and with some clinicians.

My fear, however, is that just the opposite happens in other situations. Some clinicians encounter a difficult situation and immediately request an ethics consult without taking the time or effort to dive into the dilemma themselves. The complexity of modern medicine, compounded by the pressure from payers to be efficient in providing health care, encourages some clinicians to "let the ethicist worry about it." Such a knee-jerk response to these profoundly important issues in medicine can further erode the vitally important patient professional relationship.

Clinicians should continue to strive to provide whole-person care. Rather than becoming merely medical technicians, they should seek to identify and resolve the physical, psychological, social, spiritual and ethical needs of their patients. This sounds overwhelming in our current health care delivery system. Consultations are available in each of these domains and are clearly "of value." However, the availability of consultants does not relieve the clinician from the responsibility of addressing ethical dilemmas.

Robert D. Orr, MD,CM
Director of Ethics
Fletcher Allen Health Care
University of Vermont College of Medicine

Footnotes

¹ Rest JR. The major components of morality. In Kurtines W, Gewirtz J (eds). Morality, Moral Behavior, and Moral Development. New York: Wiley, 1984.

² Fowler MD. The role of the clinical ethicist. Heart Lung 1986;15(3):318-9.

³ Orr RD, deLeon DM. The role of the clinical ethicist in conflict resolution. J Clin Ethics 2000;11(1):21-30.

⁴ Orr RD, Morton KR, deLeon DM, Fals J. Evaluation of an ethics consultation service: Patient and family perspective. Am J Med 1996;101:135-41.

⁵ Schneiderman LJ, Gilmer T, Teetzel HD, et al. Effect of ethics consultations on nonbeneficial life-sustaining treatments in the intensive care setting. JAMA 2003;290:1166-72.

in collaboration with
Dartmouth-Hitchcock Medical Center

The opinions expressed in the journal, Lahey Clinic Medical Ethics,
belong to the individual contributors and do not represent the institutional position
of Lahey Clinic on any subject matters discussed.