HE CFORUM, Vol 1, pp. 183-194, 1989. 0956-2737/89 $3.00+.00 Printed in the USA. All rights reserved. Copyright O 1989 Pergamon Pre~ pie

H O S P I T A L E T H I C S C O M M I T I ' E E S :

T H E H O S P I T A L A T I ' O R N E Y ' S ROl.l~.

DAVID A. BUEHLER, M.DIV., M.A.T.

RICHARD M. DiVITA, M.S.W.

JACKSON JOE YIUM, M.D., F.A.C.P.

THE ROLE OF THE HOSPITAL ETHICS COMMITI'EE

Hospital Ethics Committees (HECs, also IECs) emerged in response to a number of seemingly unrelated concerns. Among these were advances in medical technology, a corresponding increase in opportunities for legal liability, and a concern to control situations laden with liability, such as those arising out of "Baby Doe" Regulations (1, pp. 5-9). The precarious nature of health care ethics today reflects a system which, paraphrasing E.D. Pellegrino, M.D., is "means rich, but goals poor. ~ HECs have been established nationally with the primary goal of serving patients and protecting their interests and well-being. This goal has been pursued primarily through policy formulation, education, case review, and individual consultation. Committees have not been entirely congruent in all aspects of their structure, composition, and philosophy. Some committees adopt a direct decision-making modus operandi, while others merely make recommendations, and still others attempt to arrive at consensus. Committees, bioethicists, and others with committee expertise have been unable to agree on the role of hospital attorneys, risk managers, and other institutional advocates on HECs. The literature to date reflects this ambivalence, with proponents on both sides of this issue stating their case and citing examples to support their position.

Before considering this issue in depth, one might ask why anyone should have a role on a HEC. The discussion that follows is based on the commonly accepted model that HECs are designed to"

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(1)

(2)

(3)

review and set policies regarding patient care issues involving ethical problems and dilemmas; provide ongoing bioethics education for hospital personnel, staff, and the wider community in dealing with ethical decisionmaking; and actually engage in case review and analysis.

These tasks are ordinarily carried out by a diversity of committee members, including a significant group of health care providers-- physicians, nurses, allied health professionals, and laypersons, including social workers, clergy, and community representatives. It is assumed here that HECs and their chairpersons wish to have the support of hospital administrators and physicians, and that they desire multidisciplinary membership, since the HEC by definition represents the wide spectrum of viewpoints found in any pluralistic setting. Qualifications for membership on a HEC include an interest and desire to work with ethical problem-solving and decisionmaking processes (2). It is worth noting that the nature of membership criteria is twofold: it relates not only to one's experience and credentials, but also to one's character, attitude, and personality. The former are often overemphasized at the expense of the latter. In fact, in some cases, personal qualities, temperament, and capacity for critical thinking may outweigh the more traditional criteria of discipline, degrees, or professional rank. This point was underscored in the AMA Judicial Council's "Guidelines for Ethics Committees in Health Care Institutions" (1984) which lists the following among criteria for ethics committee membership:

Members of the committee should be selected on the basis of their concern for the welfare of the sick and infirm, their interest in ethical matters, and their reputation in the community and among their peers for integrity and mature judgment. Preferably, a majority of the committee should consist of physicians, nurses, and other health care providers.

Persons considered for the ethics committee should be temperamentally suited t o making recommendations affecting the welfare of patients and professional considerations relating to their care and treatment....It is important that persons selected as committee members should not have other responsibilities that are likely to prove incompatible with their duties as members of the ethics committee (3, pp. 2698-99).

HECs: The Hospital Attorney's Role 185

THE ROLE OF THE HOSPITAL AqTORNEY

That such incompatibility can occur within HECs is central in our discussion of the role of institutional advocates. "Advocates" here means those persons whom a hospital retains or with whom it enters into a contract in order to protect the assets, both physical and financial, of the hospital against liability and risk. Such a defense of the institution is in fact the raison d'etre of the hospital attorney or risk manager. Whether an actual conflict of interest arises when hospital attorneys and other advocates participate in the deliberations of a HEC has been a recurring debate in HEC literature. For example, the Hastings Center Guidelines on the Termination of Life- Sustaining Treatment and the Care of the Dying(1987) includes in its description of the Institutional Ethics Committee membership the following:

The institution's legal counsel should not be a member of the committee, but rather should be available to the board of directors, medical staff, or committee for consultation on legal issues. This frees the committee to explore ethical issues without being unduly concerned with legal matters and risk assessment, and provides assurance that IEC recommendations can be reviewed for their legal implications by some other office (4, p. 102).

The Handbook for Hospital Ethics Committees published by the American Hospital Association (1987), takes a similar stance. In suggesting ways to plan, develop, and evaluate the roles and responsibilities of HEC members, it advises that, when lawyers are included on HECs, "Non-hospital lawyers are preferred, not because they are better lawyers or know more about ethics, but because the hospital lawyer is employed to protect the hospital's interests. Insofar as, in some cases, the hospital's interests (e.g., in avoiding possible law suits) may not in the short run be consistent with the patient's desires or interests, the hospital lawyer should not be placed in a position of possible conflict of interest. Certainly individual hospital lawyers are able to identify such conflicts of interest when they occur, but the committee members cannot be sure that will happen, and the hospital lawyer ought not to be asked to wear two hats at once." While an attorney can contribute needed professional expertise to the ethics committee, the Handbook adds the important caveat that "knowing what the law says about a topic does not end the discussion" (5, p. 39). Similarly, the State of Maryland has enacted a Statute establishing "Patient Care Advisory Committees" which function along the lines of

186 D.A. Buehler, R.M. DiVita, J..L Yium

a HEC. Among those suggested as possible members are physicians, nurses, social workers, administrators, community, representatives, clergy, and others. Hospital attorneys are conspicuously absent and not mentioned in this Statute (6).

An even stronger caveat is given by Marshall B. Kapp in the Florida Bar Journal. Warning that *the attorney should not dominate the IEC by excessively preoccupying that body with narrow risk- management concerns," Kapp contends that an IEC (Institutional or Hospital Ethics Committee) by definition *is not intended to function as a legal or financial risk-management device." Kapp acknowledges that a *bioethically informed and sensitive attorney* may enhance the committee's functioning by *enhancing legal sensitivity* around ethical decisionmaking, but he stresses the need for the attorney's own sensitivity:

...optimal discharge of that duty compels the lawyer to offer a broader perspective than mere conservative, technical risk avoidance at any price. Thus, the attorney IEC member would function in this capacity both as attorney, pointing out possible civil and criminal liability concerns, and as a bioethicany informed and compassionate lay person. Apprehension that IEC members may lose track of their primary ethics focus has led some IECs to choose purposely not to invoke attorneys to serve as IEC members (7, p. 20).

Nevertheless all commentators do not agree. Another view is presented by Bowen Hosford, J.D., attorney and author of Bioethics Committees: The Health Care Provider's Guide. Hosford assumes that "someone in the institution's administration is likely to have legal training and would be an appropriate member" [of the HEC], but then goes on to say the following:

Working against membership is that it might cost such lawyers the attorney-client privilege, which allows them to remain silent about some subjects. Bioethics committees are not their clients, and a judge might instruct them to reveal information that they learned during meetings. An often heard objection, from the committee's standpoint, is that such a lawyer might forbid it to take innovative action, being overly protective of the institution (8, p. 131).

Hosford gives anecdotal evidence that at least one lawyer, Stephen Swartz of Mt. Sinai Hospital, Minneapolis, has avoided conflict of

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interest while serving on Mr. Sinai's HEC, but he offers no new pro or con arguments on the role of hospital attorneys on HECs.

In preparing this essay, one of us (JJY) conducted an informal sample of several HECs whose members were participating in the project ~Improving Ethics Committees: Educating Across the Health Professions, * being conducted at the University of Connecticut Health Center, Farmington. Of sixteen HEC members sampled, 25% (n=4) reported that they have neither a risk manager nor a hospital lawyer on the committee. The remaining 75% rel~orted that 4 have a Risk Manager, 5 an institutional lawyer, and 3 have both. Participants made generally positive comments about the advocate's role on the HEC, regardless of their position in the hospital or the degree of their involvement on the committee. In addition to serving as risk managers or attorneys, these advocates often wear more than one ~hat. ~ For example, some are also registered nurses, physicians, administrators, patient representatives, members of ethics subcommittees (e.g., policymaking), and case consultants. These findings seem to parallel those of a larger, scientific sample conducted by Dr. Robert M. Greenstein, et aL in the *National Collaborative Survey of Infant Care Review Committees in U.S. Hospitals. * That study found that, of 870 hospitals surveyed, 44.9% had an institutional lawyer on the ICRC, while 16.7% included a community lawyer, and 6.2% an academically based lawyer (9, p. 35).

A report in the Medical Ethics Advisor (1988) indicated that, while approx. 50% of committees in Minnesota include an attorney, few would allow a hospital attorney to occupy that position, and then only without a voting privilege. Judith W. Ross from UCLA's Center for Bioethics is cited as one opposed to having hospital lawyers on committees, because *They have another agenda, generally a conservative one, which is to not cause any potential for any litigation ever. Their job is to protect the hospital." Joan M. Gibson, chairperson of the St. Joseph HEC, Albuquerque, New Mexico, argues for the presence of the attorney in a teaching role: ~not so much telling us when we're getting into the hot water of liability, but to explain how the law works, to construe a given issue in its legal dimensions, and then just become part of the committee and the deliberations ~ (10, p. 32).

On closer inspection, it appears that Ross and Gibson are not really in fundamental disagreement, but differ more in their perspectival approaches, specifically on the concept of "advocate." When Gibson's HEC was established in 1980, it had the goal of "serving as an interdisciplinary forum for discussion of issues related to dilemmas associated with growing medical technology and a concern with questions of social justice, i.e., how to continue to serve the

188 D.A. Buehler, R.M. DiVita, J3. Yium

indigent population in times of ferocious economic competitiveness and constriction" (11). The committee was not formed as an arm of the administration or any hospital department but was to serve as an arena for reflection and discussion of moral matters. Among those who demonstrated interest in these goals was an attorney in private practice who also happened to be the hospital's attorney. He remains on the committee today, although the role of hospital counsel has since been assumed by another attorney. Hence, despite the precedent created, there is currently no hospital attorney on the St. Joseph Hospital Ethics Committee.

Gibson feels that this experience proves that a hospital attorney can make a positive contribution and she attributes this to the "internal culture" of the committee. This term refers to the intangible, abstract nature of committee life, a formal informality about is operations, including the ability to clearly articulate its mandate and its focus. The committee's culture is what enables members to step out of their accustomed roles in order to philosophize and engage in the arduous task of moral reasoning about dilemmas. Prof. Gibson perceives this to be a "freeing" experience for HEC members, enabling them to appreciate values and perspectives beyond their usual frame of reference. She concludes that this "is not an argument that 'institutional advocates' can or should serve on a hospital ethics committee; it is simply evidence that it is possible." Since the initial experience with the hospital attorney, the St. Joseph HEC has invited the president and senior vice president for Quality Assurance to become committee members. This is largely due to an internal culture which makes the committee a safe place in which the usual hierarchical structures are unimportant or non-existent. In such a culture, the formality which drives many committees becomes subliminal rather then imposed. What formality there is comes about as result of the committee's primary focus--education, as opposed to case review and consultation, for example (11).

The educational role of the HEC is by its very nature multidimensional. Plans are made for formal education and it is also expected that each member engages in self-education within his own working context. One can envision the committee acting as a communicating leaven, transmitting the internal culture of the HEC throughout the organizational culture as a whole. It is much like concentric moral discussion beginning with the committee and rippling outward until the terms, language, and topics for moral discussion are commonly shared by all. In these educational activities, a HEC naturally takes into account the legal side of bioethical issues and areas which have an impact on the hospital's risk management, so it is here perhaps that the hospital attorneys and risk managers might be most

HECs: The Hospital Attorney's Role 189

beneficial and have the most to contribute to the committee's overall functioning. They can be valuable consultants in educating the members of the HEC on how to deal with medico-legal aspects that often attend ethical problems and dilemmas.

UNIVERSAL CONFLICTS-OF-INTEREST

When case consultation takes first priority, the presence of the hospital attorney may pose a more explicit conflict of interest. Case consultation as a primary objective may be more problematic when professional roles clash with the committee's stated purposes. In individual case consultation it seems obvious that conflict of interest is more apt to occur when a particular committee member is retained as the hospital's counsel. It could also be argued that anyone serving on a HEC who is employed or retained by the hospital may also bring to these deliberations some degree of conflict of interest. This applies not only to hospital physicians, nurses, and other caregivers, but equally to social workers, clergy, and allied health professionals. As Dr. Ronald Cranford has stated it, *Everybody on the Ethics Committee has a 'conflict of interest.'" Unlike hospital attorneys and risk managers, health care providers take as the core principle of their professional code the best interest of the patient irrespective o f the hospital's interests or liability. Furthermore, one might ask whether it is feasible to establish committees which, in Ruth Macklin's terms, consist entirely of "disinterested parties who have nothing at stake in either decisionmaking or policymaking." In commenting on this issue, Teresa A. Brooks, et al., note that insofar as the committee fulfills an institutional purpose it and its members are agents of the institution (12,13).

Another question which may arise when an institutional advocate serves on a HEC is, will his viewpoint unduly influence other members and will there be a conflict of interest between the goals and purposes of the HEC and the attorney's professional obligations to the institution? In making decisions concerning patients and patient care problems, HECs often are required to make either substantive or "substituted" judgments. In some cases the judgment is made in the patient's best interest. Whether someone who represents the legal profession or the hospital (e.g., a Risk Manager) can make such a decision unencumbered by prior institutional commitments is the question that underlies their role on the HEC. Typically, the job description for a Risk Manager includes the following:

1. protects assets of hospital through identification and analysis of property loss

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exposure, net income loss exposure, professional liability exposure, and general liability loss exposure; and coordinates insurance and claims activities; coordinates and audits safety functions for patients, visitors, and employees.

Institutional Attorneys are in a similar position, even if the language noted above is not used in their role description. It is the task of the institutional lawyer to protect the institution from legal liability or damages. Therefore, persons sitting on a HEC with such a charge to protect the institution may have legal concerns that override ethical ones, and the HEC might be afraid to act for fear of possible damage to the hospital. Hosford (8) notes that hospital lawyers could lose their attorney/client privilege, which allows them to keep certain information in strict confidence. This derives from the fact that the lawyer is legally connected to the hospital and not the committee. Committee information, records, and other data may then no longer be confidential and a judge or court could gain access to that information. Other committee members may also feel intimidated or obliged to accept the legitimate, convincing arguments put forth by the hospital attorney or risk manager. Unlike most other committee members, attorneys have chosen the art of effective argumentation as their life's work. It is not difficult to imagine a scenario in which the presence of a hospital attorney dominates or impedes a committee even while appearing to propel it along. In contrast to law and medicine, HECs are relatively new, rather unsure of themselves, and often unclear about their role. HEC members might feel insecure about confronting situations in which there is no clear legal consensus, and may be unwilling to engage in moral reasoning beyond the letter of the law. The expertise and authority of hospital attorneys, medical directors, and risk managers is persuasive at many levels, possibly short-circuiting the slower, more reflective ethical analysis which committees do best.

Yet in spite of all the reservations expressed in the extant literature, it is true that HECs often need legal help or input from hospital attorneys, risk managers, and other specialists in health law, particularly when they engage in policy formulation or review. Committees should base these deliberations on ethical principles rather than on decisions founded solely on the legal liability of the hospital (14). Even if a hospital attorney is allowed to sit on a HEC without voting, he or she still may possibly influence deliberations, procedures, and especially policy formulations. This is not to suggest that an institutional advocate cannot play a productive role in the growth and

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development of a committee; but the fact remains that when a committee member officially represents the hospital, there may be such a compelling conflict of interest that the advocate will be unable to act without recourse to his role as representative and advocate of the corporation.

CONCLUSION

In light of the foregoing, we conclude that hospital attorneys, risk managers, and other advocates despite the immense contribution which they may make to the process and deliberations of ethics committees--have a unique role in the bioethical decision-making process, but one that neither requires nor precludes membership on such committees. This is not to deny in any way appropriate access to committees or their deliberations by such advocates. Indeed, we would argue strongly that hospital attorneys and risk managers, where there are reasons for including them in committee discussions, should be invited as consultants and participant-observers. Furthermore, we concur with Gibson, who suggests that hospital attorneys have a teaching role which enhances the committee's understanding of relevant legal issues, cases, and decisions. This is especially true in individual case consultation. Ethics committees and institutional advocates both have important roles within health care institutions, but patients and hospitals are best served when these two agents collaborate without weakening or undermining their mutually distinct functions and priorities. This conclusion is based primarily on the widely acknowledged concern about conflict of interest as well as the more peripheral concern about loss of attorney/client privilege. However, we would argue that in all aspects of committee work, including self- education, policymaking and case review and consultation, these specialists in health law may often give expert advice and counsel to persons regarding a vast array of subjects. These include but are hardly limited to the following: Durable Power of Attorney for Health Care, Living Will Legislation, Malpractice Law, Orders Not to Resuscitate, Forgoing Life-Sustaining Treatment, Withholding Nutrition and Hydration, Treatment for Incompetent Patients, Proportionate vs. Disproportionate Treatment, and Suicide and the Law. HECs need to know how attorneys think and especially how hospital attorneys frame bioethical issues, just as they need to know how physicians and nurses think and respond. Even if hospital attorneys are not formally seated on HECs, they should participate in charting the currents in bioethics. Gibson feels that we need to re-examine the roles of the hospital attorney. Perhaps these advocates should be encouraged to wear more than just one "hat, ~ and for the rest of us to generalize about institutional advocates is both premature and prejudiciaL When we

192 D.A. Buehler, R.M. DiVita, J3. Yium

stereotype attorneys with a generic label such as "institutional advocates," we open ourselves to the dangers of an even narrower kind of "reflex advocacy" (11).

To achieve open and honest dialogue, all voices and viewpoints must be heard. HECs that arbitrarily and totally exclude hospital attorneys from participation may exhibit the very close-mindedness they are seeking to eliminate. Yet this situation is at its core a paradoxical one: We cannot proscribe the advocate's role without constraining his or her effectiveness. Yet for the sake of their effectiveness we need to protect them from conflict-of-interest situations. Moreover, we also need to be certain that all points of view, including those that derive from the law, are given an adequate hearing by HECs.

REFERENCES

1. Fieischman, A. and Murray, T.H. Ethics Committees for Infants Doe? Hastings Center Report, December, 1983; 5~9.

2. Lo, B. Behind Closed Doors: Promises and Pitfalls of Ethics Committees. New England Journal of Medicine. 1987; 317 (1): 46-50; Special Report on Successful Ethics Committees. Medical Ethics Advisor 1988; 4 (x): 17-28.

3. Judicial Council, American Medical Association. Guidelines for Ethics Committees in Health Care Institutions. Journal of the American Medical Association, 1985; 253 (18): 2698-99.

4. Wolf, S., Project Director. Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying. Briarcliff Manor, NY: The Hastings Center, 1987. Cf. Nancy IC Rhoden, "Litigating Life and Death," in Harvard Law Review, 1988; December: 439 f.

5. Ross, J.W. et al. Handbook ]'or Hospital Ethics Committees. Chicago, IL: American Hospital Association, 1986. The Hastings Center, 255 Elm Road, Briarcliff Manor, NY 10510.

6. Annotated Code of Maryland, 1987, ss. 19-370 to 19-374: 252-254. 7. Kapp, M.B. The Attorney's Role as Institutional Ethics Committee Member.

Florida Bar Journal 1987; 15: 19-22. 8. Hosford, B. Bioethics Committees: The Health Care Provider's Guide. Rockville,

MD: Aspen Systems Corporation, 1986. 9. Greenstein, R., S.S. Hudd, and G.V. Fleming, "National Collaborative Survey of

Infant Care Review Committees in United States Hospitals,"Monograph Series No. 5. Univ. of Conn. Health Center, Pediatric Research & Training Center. March 19, 1987.

10. Ethics Committees Split 50-50 on Whether to Include Attorney. Medical Ethics Advisor, March, 1988.

11. Gibson, J.M. (Personal Communication with Richard M. DiVita. 11-30-88.) 12. Cranford, R., M.D. The Ethics Committee Movement. Lecture at A Conference

on Ethics Committees: Moral Struggle and Strate~ in Health Care Institutions, College of Physicians, Philadelphia, PA, 10-13-88.

13. T. Brooks, et al. Critical Care Decision Making in Hospitals: Ethics Committees -- Legal Issues under Alternative Formats. American Bar Association: Forum Committee on Health Law. Proceedings - Program on Bioethical Problems, 1985; 10-22 to 10-13-85, 1-47.

14.

HECs: The Hospital Attorney's Role 193

Brennan, T.A. Ethics Committees and Decisions to Limit Care. Journal of the American Medical Association, 1988; 2.60 (6): 803-7.