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Abstract

Several key developments in the United States in the practice of clinical ethics consultation have occurred since the New Jersey Supreme Court recommended such a service in the case of Quinlan in 1976 and the ﬁrst requirements of such services for hospital accreditation by the Joint Commission in 1992. Research and scholarship have attempted to deﬁne what an ethics consultation is and its goals, the competencies that need to be enjoyed by those who provide consultation, and tools to provide quantitative and qualitative measures of a consultation effectiveness. More recently, different proposals have attempted to provide for a mechanism by which those who perform consultations can be certiﬁed as qualiﬁed to be an ethics consultant. In spite of the tremendous amount of such scholarship, there is no consensus on these issues, nor especially on the manner in which the facts of a case ought to be analyzed to come to some conclusion. More work will need to be done to bring some form of commonality to a discipline that by deﬁnition admits to a wide variety of approaches.

Introduction

This entry will seek to give a brief historical overview of the development of clinical ethics consultations in the United States. By exploring key developments in that history, with Bibliography : to ethics consultation as it is performed in other countries, it will be shown that while progress has been made, still much more work is required to reach a census of what a consultation is, who can do it, why, and how it is accomplished.

History And Development

The practice of formally engaging ethical thought in challenging or problematic clinical cases in the United States can be traced back to the 1950s in Catholic health care to what were called medical moral committees. Typically, these committees were involved in cases at the end of life and determining if a particular care plan was considered to be morally ordinary or extraordinary as deﬁned by Catholic teaching, principally as articulated by Pope Pius XII (1938–1958). The emergence of this consulting practice in secular settings is often traced to the establishment in 1962 of the Admissions and Policy Committee of the Seattle Artiﬁcial Kidney Center at Swedish Hospital in Seattle, Washington. Known informally as the “God Committee,” this group went beyond a purely clinical evaluation of a case to introduce such ethical criteria as social worth to make recommendations as to whom should be a candidate for what at that time was very limited access to life-sustaining hemodialysis for patients suffering with renal failure.

Ethics consultations looking at a greater variety of ethics challenges in the clinical setting are derived more directly from the 1976 New Jersey Supreme Court decision in The Matter of Karen Ann Quinlan. Karen had suffered a cardiopulmonary arrest resulting in anoxic brain injury and a coma from which she was not expected to recover nor be able to continue to live except through the assistance of mechanical ventilation. In the ruling in favor of her parents’ request that she be taken off the ventilator and therefore be allowed to die, the Court, reﬂecting in its ruling the Catholic faith background of the Quinlan family and making extensive use of an allocution by Pope Pius XII to a group of anesthesiologists in 1957, recommended that hospitals should create some ethics entity such as ethics committees in order to offer guidance on these challenging issues. In 1983, the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research went on to make its own recommendation that hospitals explore and evaluate mechanisms to offer ethical advice in challenging cases. In 1992, what is now known as The Joint Commission, the accrediting agency for hospitals in the United States, made a requirement for accreditation that hospitals have a mechanism to provide ethics consultation. This is commonly, but not always, an ethics committee.

Defining An Ethics Consultation

Early attempts to deﬁne the scope, skill, and knowledge competencies required for ethics consultation as well as the value of these consultations were made with prospective studies of ethics services at a teaching hospital (Puma et al. 1988). Reﬂecting the trend of the ethics committees as the vehicle for ethics consultation, early efforts were also made to describe the goals of an ethics consultation. They articulated ﬁve objectives: (1) improving patient’s outcomes, (2) improving the decision-making process, (3) improving institutions’ ethics policies, (4) helping to resolve conﬂicts in a respectful way, and (5) improving ethics education (Fletcher and Siegler 1996). This work in turn led to research into the reasons why ethics would become involved in clinical cases. Today, these have been most commonly identiﬁed as situations related to code status, the withholding or withdrawing of life-sustaining interventions, determining decisional capacity, end-of-life care, advance directives, patient autonomy, and staff, professional, or family conﬂicts (Swetz et al. 2007). Additionally, a study of 600 internists suggested that conﬂicts and emotionally charged concerns are a more common reason for a consult thus raising the specter that the ability to teach mediation skills, or engage in mediation, is a necessary competence for clinical ethics consultation (Duval 2001).

A now commonly held consensus regarding an ethics consultation is found in the publication of the American Society of Bioethics and Humanities’ (ASBH) Core Competencies for Health Care Ethics Consultation. The second edition of the ASBH Core Competencies report deﬁnes a consult as a service provided by an individual or a group to help patients, families, surrogates, health-care providers, or other involved parties address uncertainty or conﬂict regarding value laden issues that emerge in health care. The goal of this service is to improve the quality of patient care through the identiﬁcation, analysis, and resolution of ethical issues as they emerge in healthcare institutions. This is accomplished through the implementation of some standard process that can identify and analyze the nature of the value uncertainty or conﬂict that underlies the consultation, as well as facilitate resolution of conﬂicts. As a result, ASBH states that such consultations can then inform institutional efforts at policy development and quality improvement, identifying causes of ethical problems and thus promoting practices consistent with ethical norms and standards, and lead to the design of education in health-care ethics to address future issues.

Measuring Effectiveness And Value

With a consensus regarding what an ethics consultation is and its goals, it is possible to move on to efforts to develop tools to try to measure the value, effectiveness, and quality of clinical ethics consultations. In one representative study, 550 patients who ﬁt the criteria for an ethics consult, receiving what was considered by clinicians to be non-beneﬁcial care, were randomized into two cohorts: a control cohort in which an ethics consultation was not engaged and an intervention cohort in which an ethics consultation took place. The goal of the study was to determine if there were any differences between the two cohorts for (1) ICU length of stay of those patients not surviving to discharge, (2) ICU length of stay of those patients surviving to discharge, and (3) overall mortality of patients. Clinician interviews were also conducted for a qualitative measure of clinician satisfaction with the ethics consult. The study showed that while there was no difference in mortality between the two cohorts, those randomized into the intervention cohort that received an ethics consultation had an almost 3-day shorter hospital stay, 1.4-day shorter ICU stay, and an almost 2-day shorter period of intubation for those who did not survive to discharge. The study also reported 87 % of those clinicians whose patients were in the ethics intervention cohort expressed satisfaction with the ethics consult (Schneiderman et al. 2003). While this study is instructive, it was comprised of a very limited number of those for whom an ethics consult might be called, i.e., cases identiﬁed as non-beneﬁcial/futile care. In addition, it is difﬁcult to know if satisfaction rates reﬂected agreement between the ethics consult and the clinician or satisfaction that the process itself was useful. It is not certain that this type of quantitative research can be replicated for other clinical situations, for example, respecting patient autonomy in cases of behavioral health.

A more recent national survey of ethics consultation in the United States sought to measure the effectiveness and value of a consult by broadening the measures beyond clinical outcomes of length of stay by tracking the frequency with which they were requested and the efﬁciency with which they were carried out and using a qualitative measure of clinician satisfaction (Fox et al. 2006). This more data inclusive approach has been criticized as itself being too narrow in focus. It has been suggested that a more “ecological” approach to ethics consults must be made, taking into account the variety of environmental contexts or settings in which the consult occurs. That is, the effectiveness and value of an ethics consult must be measured in the context of an understanding of the different cultures within which the consult is engaged, as well as differences of such consults within rural or urban hospital settings (Gordon 2007). The reality is that there is today no commonly agreed upon set of tools or measures to evaluate the value, quality, or real impact of an ethics consult. Indeed, there is no consensus even of what structure constitutes an ethics consult, with some suggesting that a “curbside” or phone discussion of a case with a clinician is not a consult and others arguing that any ethics involvement that helps shape the care plan, even to the simply clarifying of a clinician’s question or offering a suggestion during teaching rounds, constitutes an ethics consultation. The less formal is the structure, the more difﬁcult it will be to measure the value, quality, and impact of the consultation even if, as has been suggested anecdotally, these less formal consultations are described as more useful in a very busy clinical setting.

Competencies And Certification

With this as background, a great deal of work has been done to deﬁne the skill and knowledge competencies for those doing ethics consultations, as well as the level of expertise one should have of each competency, and how these might be measured. In 2009, a Clinical Ethics Credentialing Project was launched to pilot-test approaches to train, credential, privilege, and evaluate consultants by the Hastings Center (Dubler et al. 2009).

Using the ASBH Core Competencies report’s proposed knowledge and skill competencies, a structured written exam has been proposed as a vehicle to establish a basis for certiﬁcation or attestation of the qualiﬁcations of the clinical ethics consultant (White et al. 2014). As of this writing, approaches to establishing a mechanism for assessing consultants’ qualiﬁcations in demonstrating the necessary competencies are still being explored, including ongoing work by the ASBH Quality Attestation Presidential Task Force.

Differing Models Of Ethical Analysis

A challenge for determining knowledge and skill competencies and evaluating a consultation service is the variety and formality of the structures in the models that are used to bring the consultant to some conclusion or resolution around the ethical question raised in a case. One example can be illustrated by that offered at Cedars-Sinai in which the goal is to promote morally appropriate and effective decision-making. This is achieved by a formal, objective process of ﬁrst discussing relevant facts, then identifying ethical values and goals at play, working toward a clear understanding of each participant’s basic moral framework, and then working together to resolve the problem, conﬂict, or dilemma. In a similar European model, the Freiburg approach to ethics consultations, the work of the consult is structured around identifying the explicit articulation of the various and competing ethical arguments which the participants bring to a case and then work with those formulations toward a consensus containing sufﬁcient agreeable points (Reiter-Theil 2001). Another European model that seeks consensus is the Nijmegen method of ethical case deliberation. What makes this approach different is that it consists of a four-step method that is less afﬁliated with caregivers getting an ethics consultation from a professional ethics consultation by an expert ethicist. Instead, health-care providers themselves, as an interdisciplinary team, engage in their own deliberation of the moral problems they are encountering in patient care. This deliberation is led by a person trained in ethics who acts as a facilitator in that deliberation, not so much as a consultant (Steinkamp and Gordijn 2003).

A structured model of growing popularity in the United States comes from the Veterans Administration’s “Integrated Ethics” program. This model uses the acronym CASES: clarify the consultation request, assemble the relevant information, synthesize the information, explain the synthesis, and support the consultation process. Still another common and a very concrete example is the so-called “Jonsen four-box” model that gathers information from four categories: medical indications, patient preferences quality of life, and contextual features. These categories that are used to organize a case for analysis have also been proposed as providing structure for a consult.

Some less formalized approaches will make appeal to what is sometimes called the Georgetown Mantra which used a mid-level principle-based approach of balancing autonomy, beneﬁcence, justice, and nonmaleﬁcence. This principled approach became prominent within the United States with the publication of the Belmont Report in 1978, an ethics consultation guide for ethics in research. Still others are exploring a more clinically based approach to ethics consultations, comparing and contrasting the ethics consultant to more standard medical consultations (Geppert and Shelton 2012).

What each of these consultation models has in common is the provision of a structured approach for moving into the consultation. What they do not share is a common approach to the ethical analysis that informs the consultation. Each of these models can be used to come to very different conclusions depending on the ethical theory and the competence of the consultant in the use of that ethical theory independent of the other competencies necessary, of the one actually doing the analysis. Some clinical ethicists will be deontological or Kantian in approach, while others will be more oriented toward an Aristotelian virtue ethic, sometimes referred to as character ethics. Other ethical theories include utilitarianism, liberal individualism, casuistry, narrative ethics, and the aforementioned principle-based approach. Perhaps one of the biggest challenges to a common set of competencies and evaluation leading to some type of certiﬁcation for ethics consultation is that only “like theory” can evaluate “like theory,” both in the competence of the analysis and in the quality and reliability of the outcome.

As mentioned above, the setting in which the consultation takes place must also be a critical factor in determining competencies, evaluation, and certiﬁcation (Gordon 2007). In a teaching hospital setting in which ethics consultation is integrated into the day-to-day clinical activities of medical students and residents, for example, ethics consultation can be seen to take on more of a coaching dimension. At one such institution, one of the primary goals of an ethics consultation is to promote the Accreditation Council for General Medical Education (ACGME) competency of professionalism by helping clinicians think through a case to achieve practical wisdom, assisting the clinician to move beyond technical skill to establish and work out of a therapeutic, i.e., professional, relationship-centered approach to care patient in the context of the ethical concerns that have been raised (Tuohey and Kockler 2012). As distinct from the ASBH deﬁnition of a consultation, this practice takes on more of the approach of what can be called a discernment, referring to the quality of perception and the capacity to discriminate degrees of importance among various features before making a judgment. The ability to discern involves keenness of perception, sensitivities, affectivities, and capacities for empathy, subtlety, and imagination, rather than clarifying issues and synthesizing facts.

All that said, one must still take into account that different cultures will think differently about what constitutes an ethical issue and how it ought to be approached. A particular example of this can be seen in the contrast of a strong autonomy model of patient decision-making often seen in the west which can be at odds with clinical judgments of appropriate care with a more context-based Chinese approach that explicitly seeks harmony between patient wishes and clinical judgment (Tao 2003).

Conclusion

As of this writing, then, clinical ethics consultation, at least in the United States, although dating back to the 1950s, is still very much what we might call a work in progress. The precise skill and knowledge competencies might be able to be generally agreed upon, but the precise goal of the consultation, the precise manner in which it is structured, the ethical theory or methodology that informs the analysis, the manner to evaluate the consultant and the consultation, and how to certify or attest that the consultant is qualiﬁed remain in ﬂux.

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