UB Center for Clinical Ethics and Humanities in Health Care

Ethics Committee Core Curriculum

How to Perform an Ethics Consult


Jack Freer

The following discussion of clinical ethics consultation and the accompanying form represent one formulation among many. It is based upon the experience of the Millard Fillmore Ethics Committee, and represents techniques and insights which that committee has developed since 1985. Consultants are free to include relevant information which may not conform to the form. The form itself is a template for inclusion of relevant information; all important comments are not expected to fit within the spaces.

1.) Relevant medical information:

It continues to surprise many ethics consultants or veteran ethics committees members just how often a case is resolved through a careful review of the medical information. Most clinical cases which present an ethical dilemma are medically complex and generate a large volume of medical "data." What is often lacking however, is organization of the data in a form which is conducive to a value judgement by the patient or surrogate. Particularly important in this regard is the prognosis. Patients and surrogate rely upon the estimation of outcome by health care professionals in their deliberations. These determinations ought to be specific to the individual patient, and reflect the current state of medical knowledge as determined by appropriate consultation and literature review. They should NOT reflect the physician's bias or personal value judgement. While many will look upon these caveats as patently obvious, apparent ethical dilemmas often result from a physician's casual (and inaccurate) pronouncement about prognosis, or personal opinion (based upon an outcome in a similar case).

The other aspect of medical information which is critical in an ethical case analysis is the way it is presented to the patient or surrogate. Technical medical data must often be "translated" into understandable layman's language. Care must be taken to provide probabilities in understandable language, using quantitative or corresponding "semi-quantitative" language ("rarely," "virtually never," "a majority of the time"). Furthermore, these discussions often take place in an emotionally charged environment, where patients or families will focus in on a single word or phrase which happens to resonate with their own hopes or fears.

When a thorough assessment of prognosis and probable outcome for each treatment alternative is clearly presented, many "ethical dilemmas" will in fact, evaporate. One might criticize clinicians for having failed to perform their responsibility in such cases. The tactful consultant will use such occasions however, to educate clinical colleagues in an important, but neglected skill.

2.) Is the patient capable of making medical decisions?

In the case of a competent patient, it is obvious that he or she should be the person who interprets the medical information and determines the relative value of each anticipated outcome. Most ethical dilemmas however, involve patients who have lost the capacity to make medical decisions (or who never possessed it).

Distinction is made here between "competence" and "decision making capacity." Although sometimes used interchangeably in the literature, there is a technical distinction with some practical consequences. Competence is a legal presumption; all adults are presumed to be competent unless determined to be incompetent in court. In contrast, decision making capacity is a clinical determination. A clinician (usually a physician) makes the determination in the clinical setting. Furthermore, competence is ordinarily a global concept. When a patient is declared incompetent by a judge, it is (usually but not always) for all decisions (property, medical etc.). Decision making capacity however, is decision specific and represents the individual's capacity to decide on that particular decision at hand. Thus, a patient may well be capable of deciding one treatment question and at the same time be incapable of deciding another. This then indicates the starting point for determining capacity: discuss the issue with the patient and observe his or her response. Parenthetically, clinicians should be reminded that this is an "efficient" use of time since this is (presumably) part of the informed consent process.

A common question is, "who determines decision making capacity?" Given the above schema, the answer is: "a physician." Which physician? The physician responsible for the patient's overall care is the first choice. That physician may defer to another physician who is better able to discuss the specific treatment at hand (for example, a consultant who will be performing a specialized procedure). Another common question concerns the need for a psychiatrist to determine decision making capacity (or even competence). Psychiatrists have no special legal standing to determine "competence." In fact, a psychiatrist is needed to rule upon decision making capacity only when there is evidence or suspicion of a mental disorder. In this regard, a psychiatrist is used as any other medical consultant; for his or her clinical expertise, not special legal status.

3.) If not, who is the appropriate decision maker?

The first choice is (still) the patient! That is to say, an incapacitated patient may have addressed a particular treatment decision in the past. This is the basis of instructional advance directives or "living wills". Such prior decisions by a patient (while competent and capable) are held to a very high standard of specificity, however. They really represent informed consent (or refusal) at a previous time and must therefore have taken into consideration all the elements of informed consent (risks, burdens, benefits, alternative treatments, consequences etc). If a patient's prior statement meets this standard, it must be respected as the patient's own choice.

If the patient is incapable of making a decision, a surrogate must be identified who can make decisions for the patient. It is well accepted that the surrogate who is preferred above all others is the individual chosen by the patient while competent and capable. This individual (sometimes called a "proxy" or technically, an "agent") is preferable because his or her authority derives from that of the patient (and in a sense, provides a means to preserve autonomy at a time that when the patient can not decide on details of care). Furthermore, the patient is more likely to have discussed specific wishes, and general attitudes with an individual chosen by the patient. Even when this has not occurred however, the agent's authority to decide is difficult to override (morally and legally) in the absence of clear evidence of bad faith. In New York State, a health care agent may be officially appointed by executing a Health Care Proxy.

When patients have not appointed anyone to make medical decision for them, accepted societal structures may provide some direction, but one must be sensitive to individual circumstances in which a friend or more distant relative is better able to approximate patient wishes than a "closer" relative.

4.) Describe surrogate's decision and justification.

By the time most cases are referred to the ethics committee, a surrogate has already been identified and has an opinion about the care of an incapacitated patient. It is important to gather information about such opinions and the circumstances in which they were stated. Specifically, one must ascertain how the question was posed and how the answer was phrased. It is important to determine whether the surrogate was representing the patient's perspective or the surrogate's. In those cases where a surrogate has not yet been approached, the clinicians need to understand the importance of formulating treatment options from the patient's perspective.

A review of decision making standards will help clarify the difference in perspective. As noted above, a prior treatment decision while the patient was competent and capable represents the patient's own choice. It is the highest standard in a hierarchy of decision making standards for incapacitated patients:

  1. Prior decision by patient
  2. Substituted judgement
  3. Best interests
The next best standard for decision making is "substituted judgement." In many cases, the patient never made a decision which was sufficiently specific or informed, so as to represent a true prior decision. The patient may however, have expressed opinions and wishes which are still relevant to the current circumstances. These are important factors in arriving at a treatment decision when the patient has not spoken to the question at hand. It must still remain clear that such decisions are those of the surrogate, not the patient. Substituted judgement is a means to incorporate patient values, attitudes, and wishes into a surrogate decision.

Finally, some patients leave us with NO guidance in making medical decisions. The operative standard in those cases is "best interests." The surrogate must decide on the best treatment option based upon his or her own assessment of risks, burdens and benefits. Such decisions are sometimes labelled "objective" in contrast to substituted judgement which is called "subjective." This of course, refers to the patient's perspective since "best interest" judgements are by no means truly objective. They represent the (subjective) view of the surrogate, but in a way that surrogate would (presumably) decide about anybody's therapy.

5.) Are there any advance directives?

Advance directives in the form of specific instructions or proxy designation must be sought in any case of decisional incapacity. Remarkably, many families fail to bring in such evidence of patient wishes early in the course of an serious illness requiring hospitalization. Documents are sometimes executed without the physician's knowledge, or may be in a safe deposit box or attorney's file. Hospitals all too often gloss over questions of advance directives on admission (despite the Patient Self Determination Act). One should always ask the question again, and not presume that it was already discussed, no matter how late in the course the consultation is requested.

6.) Have all the appropriate parties met and discussed the case?

Ethics committees sometimes provide the impetus and opportunity to get various parties together to discuss the case frankly. This is often viewed as similar to the discussion of medical information (1. above) since it is not really the ethics committee's area of expertise. Whenever possible, this role could certainly be performed by social work staff who are trained and skilled to do so. Nevertheless, cases that reach the committee are often resolved by simply facilitating communication.

7.) Important legal constraints:

Alan Meisel's description of legal myths [Meisel A. Legal Myths About Terminating Life Support. Arch Int Med 1991; 151:1497-1502.] begins with: "Anything that is not specifically permitted by law is prohibited." This myth reflects the unfortunate practice of many physicians and hospitals in which perceived legal risks take precedence over any other aspect of the medical and ethical reasoning process. To be sure, physician action and ethics committee recommendations should not be reckless. One needs to be familiar with the (accurate) details of the law, so as not to produce needless legal jeopardy for self or others. This should however, be a final step in the process, with some realistic determination of how great that risk is, and whether it really overrides an otherwise sound decision.

8.) Discussion:

The consultant should attempt to organize all of above information into a concise and understandable discussion. The discussion should clarify confusing elements of the case by identifying important pieces of information. For example, if the relevant medical information seemed to conflict with the surrogate's interpretation, it may need to be restated and discussed further. Similarly a patient's prior statements may have to be adapted to the current medical situation.

The consultant should also discuss fully any "trigger phrases" observed during the consultation process. These are key words and phrases which ought to "trigger" a more intensive analysis by the consultant. Such triggers are often slogans, stated for rhetorical value, and are commonly areas of dispute or confusion. These are generally topics about which much is written in the literature, and this may be useful in the case analysis. Examples of such triggers include:

Many "dilemmas" are much less problematic when for example, a physician is convinced there is morally (and legally) no difference between withholding and withdrawing life sustaining treatment. Such cases then easily resolved with a therapeutic trial of therapy.

Finally, it is often useful to provide references in a consultation. This adds substantial weight to the recommendations, particularly when they seem to run counter to the preconceived notions of the parties. Some members of the committee have extensive files of article, and should be consulted for references.

9.) Recommendations:

Recommendations by an ethics committee consultation team must be carefully worded. The goal of committee consultation is to facilitate sound decision making by the appropriate parties (patient/surrogate and physician/other health care providers). Wherever possible, the consultant should act primarily as a catalyst in that process. Outright questions like, "what should we do?" need to be reflected back onto the principal parties so they can work out the answer themselves (with the guidance of the consultant). Actively involving the principal parties in the process will also serve the educational goal of promoting sound medical and ethical reasoning in the future.

	ETHICS CONSULTATION

PATIENT NAME_________________________________ M.R.#_______________
ATTENDING_______________________ RESIDENT_________________________
DATE:_______________ CONSULTANT(S)________________________________

1.)	Relevant medical information:



2.)	Is the patient capable of making medical decisions?



3.)	If not, who is the appropriate decision maker?  


4.)	Describe surrogate's decision and justification.



5.)	Are there any advance directives?


6.)	Have all the appropriate parties met and discussed the case?

7.)	Important legal constraints: 


8.)	Discussion:




9.)	Recommendations:
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Last Revised 2/15/97