The Wide Variability in Ethics Consult Mandates
Only half of hospitals have put any policies in place mandating ethics consults in certain situations, according to a recent analysis.1
“Even at major teaching centers where lots of difficult cases get referred, we found a lot of variability on whether they had a policy in place,” says David Y. Hwang, MD, one of the study’s authors and an associate professor in the division of neurocritical care and emergency neurology at Yale School of Medicine.
Researchers analyzed 36 of the top academic teaching hospitals in the United States (based on 2016 rankings). In the 18 sites that had created some type of policy, these were the two most common scenarios mandating an ethics consultation:
- requests from family for possibly inappropriate treatment;
- medical decision-making for patients without representation or decision-making ability.
Overall, the hospital policies listed named widely varying situations requiring ethics consults. These included posthumous sperm donation, initiation of extracorporeal membrane oxygenation, valve replacement denial for patients with subacute bacterial endocarditis, and organ donation after circulatory death.
Guidelines from critical care societies recommend institutional review by multidisciplinary committees (as opposed to ad hoc decisions by individual clinicians) in cases involving potentially inappropriate treatment or decisions for unrepresented patients.2,3 The consensus in the literature is that physicians really should not be trying to handle those kinds of cases on their own. “But beyond that, it’s up to the discretion of any individual hospital,” Hwang notes.
The study’s findings “highlighted the fact that there can be a discrepancy between what professional societies put out as guidelines and actual practice, even at hospitals with name recognition,” Hwang explains.
Of the 18 sites with mandatory policies for ethics consults, only 67% said the policy was formally documented in writing. It is hard to know if anyone is following the policies. Without mandatory ethics consults, it is highly possible that two similar cases could be handled differently. Important, complex, life-or-death decisions would depend entirely on which clinicians happened to be involved.
Hwang offers this example: A patient sustained a devastating brain injury, and the family is asking for aggressive management. The clinical team strongly disagrees, arguing it is not the right thing to do. “Two providers could walk into that situation and have the discretion to manage the situation completely differently,” Hwang suggests.
One provider may choose to call ethics right away to discuss the conflict and come up with the best possible solution as a group. Another provider may decide that treatment is not an option. That kind of approach would put the family in a position where they would need to decide whether to put up a legal fight. “Families are a little bit at the mercy of the medical team on what’s offered and what’s not,” Hwang says.
If there is a mandate to call in ethics on a case, it means uninvolved parties are going to review the issues and air everyone’s views. “When you give unilateral power to the physician, you put the family and patient in a vulnerable situation,” Hwang says.
Sometimes, it becomes clear there is no reasonable argument in favor of aggressive care. Other cases are more ethically complex. “Treatment decisions are not just a matter of right or wrong, but reflect people’s values,” Hwang says.
The physician may insist the amount of recovery the patient will make is too minimal to justify aggressive treatment. The family might be willing to accept a poor quality of life for valid reasons — because they prioritize the patient’s survival or believe the patient would have chosen it. In those cases, it is ethically troublesome for the outcome to come down to one clinician’s opinion vs. one family’s opinion. “It is important to get several voices in the room as opposed to the luck of the draw and whatever physician you get,” Hwang says.
Mandatory consults could put clinicians in the habit of involving ethics, even in cases that do not happen to fall under the policy. “Ethics consultants sometimes answer a question that was not asked but should have been asked. Mandatory consultations, therefore, can make sure that things are not missed,” says James Kirkpatrick, MD, adjunct assistant professor in the department of bioethics and humanities at University of Washington Medical Center.
Early involvement of ethics in a conflict can defuse situations before larger problems arise. “This prevents the conflicting parties from ossifying in their positions. In some cases, early conflict resolution can save resources and hospitalization time,” Kirkpatrick offers.
On the other hand, each situation is unique. Too much standardization is an ethical concern in itself. “Making consults mandatory risks removing the personalized aspect of ethics consults, both for the team and the consultant,” Kirkpatrick cautions.
Hospital policies do not generally require clinicians to seek mandatory consults for other medical specialties. Instead, the choice on whether to consult with a specialist is left up to individual clinicians. “It makes little sense to standardize ethics consultants more than we standardize consultations for coronary angiography,” Kirkpatrick says.
A middle ground is to encourage clinicians to call ethics without mandating they do so. “Rather than specifying specific situations in which ethics must be called, such as initiation of a DNR order, clinicians should be educated as to general situations in which ethics can be helpful,” Kirkpatrick suggests.
Ethicists can make it clear they can help any time clinicians are addressing tricky conflicts or sorting out complex ethical dilemmas. Certain clinicians may even come to resent someone forcing them to call ethics. This is especially likely if people do not recognize the value of ethics. “The last thing we want as a service is to be seen by clinicians as outsiders who police people or add inefficiency,” says Tim Lahey, MD, MMSc, director of clinical ethics at University of Vermont Medical Center.
Currently, ethics consultation is required by policy when abortion (which has no legal limits in Vermont) is considered at 22 weeks of gestation or later. Ethicists make sure to ask clinicians for input while drafting the mandatory policy. “We made sure the reasoning behind rare mandatory consults was convincing, and that the process was efficient and reasonable,” Lahey says.
Regardless of whether ethics consults are mandatory, the real goal is to be sure they are helpful. “If we in ethics deliver high-quality support, that helps to defuse any residual concerns,” Lahey adds.
- Neal JB, Pearlman RA, White DB, et al. Policies for mandatory ethics consultations at U.S. academic teaching hospitals: A multisite survey study. Crit Care Med 2020;48:847-853.
- Bosslet GT, Pope TM, Rubenfeld GD, et al. An official ATS/AACN/ACCP/ESICM/SCCM policy statement: Responding to requests for potentially inappropriate treatments in intensive care units. Am J Respir Crit Care Med 2015;191:1318-1330.
- Pope TM, Bennett J, Carson SS, et al. Making medical treatment decisions for unrepresented patients in the ICU. An official American Thoracic Society/American Geriatrics Society policy statement. Am J Respir Crit Care Med 2020;201:1182-1192.
Only half of hospitals have put any policies in place mandating ethics consults in certain situations, according to a recent analysis. These policies share few common features.
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