An Ethical Quandary

Physicians are almost always opposed to abdicating clinical decision-making to non-clinicians. Just ask any practicing doc what she thinks of administrators or insurance adjusters getting involved in patient-care scenarios, those that doctors feel should be solidly in the purview of medicine. I already know the response.

I attended a professional meeting recently, and the presentation of one of the speakers – the chair of the ethics department at a major east coast university – reminded me of an interaction I had thirty years ago, and have never entirely resolved in my own psyche.

In the 1980s, I was in my training at the University of Virginia. At that time, the University Medical Center had a well-established ethics consult team. Coming in the immediate wake of right-to-die cases such as that surrounding Karen Ann Quinlan, the University wanted to engage ethicists and those of related fields – social work, theology, patient advocacy – on the front end of potential problems in order to ‘do the right thing’ and avoid messy entanglements that might register seismically with the national media. CYA.

I recall being a senior medical student on the neurosurgery rotation, and rounding with my team in the NICU. We came to one unfortunate patient; I’ve forgotten the details of the patient’s situation, but I do recall that it was grave at best. The family was emotional and divided, the nursing staff was up in arms, and the attending physician was uncertain how to proceed. Being at that time an idealistic neophyte, I turned to the chief resident and asked if we should obtain an ethics consult on this unfortunate patient?

“No. And don’t let me ever hear you say that again.”

Despite being fully aware of my low rank in the food chain, I was nevertheless caught off guard by his dismissive response. The ethics team was regularly convened for just this reason, and I thought the scenario at hand was as clear-cut for such a consult as I was likely to encounter. He read my perplexity and continued:

“If you call for an ethics consult, you’ll have a bunch of non-clinicians coming down here, pontificating, and then rendering a decision on a clinical situation. Once it’s written, we’re screwed, because if we decide to proceed in a way not recommended by the consult, we’re de-facto ‘unethical.’ It’s a huge risk management and liability issue, and I think the team can come up with a sensible decision and avoid getting outsiders involved who then will be back-seat drivers.”

That exchange occurred ~1988. I’ve thought of it since, but have never yet engaged an ethicist for her input.

So, at the recent meeting, I stood to ask this question of the presenter. His reply:

“Certainly there are some ethicists – hopefully fewer now than was the case 30 years ago – who author poorly-worded consults. A good ethicists will never tell the medical team what they should do. A good ethicist will explore with the team the actual question at hand, and weigh with the team the pros and cons of each available avenue. Remember, a ethical dilemma is usually not about good and bad. It’s about two options – choices that likely each have good facets – that must be balanced against each other.”

This answer reminded me of what I have long said about a savvy psychotherapist: such a practitioner should never tell a patient what to do, but instead should guide the patient in exploring the situations at hand and aiding that person in coming to the decision that works best for her.

Of course, that’s in theory. I know of many therapists who cross the line, and I’m sure there are ethicists who do the same.

In the law, there is a type of civil determination called a declaratory judgment. In such a situation, a court will resolve uncertainty through a conclusive preventative adjudication, essentially affirming the rights, duties, or obligations of one or more of the parties in a non-criminal dispute. It is rendering an opinion on a hypothetical that has not yet been formally brought before the court.

But not all courts will pass declaratory judgments. And I doubt ethicists will do so either. One can hardly approach an ethicist and say, “I’d like to submit a consult on a sticky situation, but only if you’re not going to hog-tie me clinically. Perhaps you can give me a pre-decision off the record, and then I can decide whether I want to submit a formal consult or not.”

In reality, as the old saw goes, one pays one’s money and takes one’s chances.

So, three decades later, I still don’t have a good retort to the chief resident’s premonition.

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