The Joint Commission requires hospitals to develop a mechanism to address ethical issues, and recommends a multidisciplinary ethics committee. But in the experience of Edward Dunn, MD, ScD, ethics services really have not been an important area of focus during previous surveys. “During surveys, the unfortunate reality is The Joint Commission often only takes a superficial glance,” says Dunn, medical director of palliative care for Louisville, KY-based Norton Healthcare.
The Joint Commission surveyors have checked for evidence of committee notes taken during the quarterly meetings that occur in Norton’s five hospitals.
“Nevertheless, the two surveys that were two years apart in the past four years never raised any questions about our ethics program. I’ve never seen them do a deeper dive into the substantive activities of an ethics program,” Dunn reports.
Dunn would like to see The Joint Commission scrutinize issues such as what checks and balances are used to address ethical conflicts between medical staff and administrators, or why few patients present with advance directives even at many large health systems with cancer care programs. “Professional societies in medicine, nursing, and the allied health professions all have interests in ethics,” Dunn notes.
For example, the American Academy of Hospice and Palliative Medicine maintains several groups that communicate regularly and convene at the annual national assembly to discuss ethical issues in palliative care.
“The professional societies may have some influence on the ethical elements of practice in the health professions, but their influence is largely driven by the interests of local leadership in healthcare organizations, large and small,” Dunn argues.
States delegate the regulatory oversight of health systems to accreditation organizations. “If a health system fails to meet the quality standards set by Medicare based upon audits of The Joint Commission, there will be financial penalties. However, there are no quality metrics for ethics in a health system,” Dunn says.
Ethics consultations do not generate any revenue from payers like Medicare, Medicaid, or commercial insurers. “In the most recent Joint Commission surveys I have witnessed in my health system, I was never questioned by the survey team about our ethics program,” Dunn explains.
Norton’s ethics committees are multidisciplinary, and include nurses, social workers, chaplains, physicians, patient safety employees, and quality improvement staff. However, the meetings are only quarterly and often poorly attended.
“The bottom line for health systems is that ethics sounds good, but it doesn’t generate revenue. Therefore, it is simply not a priority for executive leadership in health systems,” Dunn laments.
A related issue is that regulators “have never taken a serious look at the role of clinical ethics in health systems,” according to Dunn. “They have really never attempted to define what a robust ethics program should look like in a health system.”
Reviewing the minutes of a quarterly ethics committee meeting, as The Joint Commission surveyors did during the health system’s previous survey, does not paint a complete picture.
“It illuminates very little about the role of ethics in a healthcare organization,” Dunn says. “In fact, if committee meetings are the only evidence of any ethics activity, I would say that ethics barely has a pulse in that organization.”
Thomas V. Cunningham, PhD, MA, MS, has seen Joint Commission surveyors look for ethical practices during patient tracing when interviewing staff about policies and procedures, and when reviewing policies that cover care.
“Although ethical issues can arise in any area of care, surveyors often seem to look more for them in practices like informed consent and respecting patient’s wishes as stated on advance directives,” says Cunningham, a bioethics director within Kaiser Permanente’s Southern California region, covering the West Los Angeles Medical Center.
Surveyors also may ask how a nurse or other staff member would request an ethics consult. If hospitals fail to meet minimum standards for clinical care, “there are all kinds of repercussions,” Cunningham warns.
If clinical areas such as cardiology or neurology are not meeting CMS quality measures, lost reimbursement is a real concern for that hospital. “You won’t get paid, and the hospital will lose accreditation or will have to shut down a unit,” Cunningham cautions. “The stakes are very high.”
Therefore, hospital leaders should be strongly motivated to ensure performance benchmarks for clinical quality are met. “In ethics, there is no such thing. No one is paying attention to quality measures of ethics consultation activities during regulatory surveys. No one is counting,” Cunningham says. “Until that happens, from an external point of view, hospitals have no reason to put resources into ethics.”
While there may be internal recognition that the ethics service is important to the organization, external benchmarks inevitably take priority. An example would be meeting criteria to become certified as a primary stroke center. “If you can’t meet that threshold, people will lose jobs over failing to do that,” Cunningham notes.
There are multiple licensing, regulatory, and professional societies that set benchmarks for clinical care. “It’s reasonable for an administration to be aware of that. You’re going to focus on what all these other bodies are making you focus on,” Cunningham says. “But none of these make any real demands on ethics as a clinical service.”
Regulatory agencies still assess ethics “as though it is a small-volume service done by volunteers on a committee, not as a high-volume service run by ethics staff,” Cunningham adds.
If ethics services had to meet metrics that similarly affected revenue or hospital operations, administrations would have to invest in resources accordingly. “We would welcome it, to send a signal to all the administrators in the country that they better figure out how to pay for ethicists,” Cunningham says.
For instance, if The Joint Commission required the ethics consult to maintain a certain amount of volume, the questions would become: How do we verify that the service is achieving the expected volume? If the service is not meeting the expected volume, what needs to be done? “If you want to try to ask the question, we’ll try to start getting an answer,” Cunningham says. “That’s how administration, in my judgment, figures out how to resource.”
Most hospital leaders recognize ethicists are thoughtful practitioners who are dedicated to resolving ethical dilemmas to benefit patients and the organization. The problem is that there are no external bodies that set specific benchmarks for ethics, according to Cunningham. He argues ethicists should address this: “Someone has to go out and advocate for strengthening expectations and standards with the regulatory bodies,” he says.