Hospital counsel: To serve on ethics committees?

Experts: institutions differ

At the University of California, Davis, the legal counsel and the ethics consultation services are "completely separated," according to Alexander A. Kon, MD, CM, FAAP, FCCM, who, among other appointments, serves as the director, clinical bioethics consultation service and chair, bioethics consultation committee.

"We view our functions as very separate, and so we keep it separate," Kon tells Medical Ethics Advisor. "I will say, we have historically had lawyers and retired judges on our ethics committee — actually doing consultations — but they're not doing it as an active lawyer; they're doing it as a member of the committee. And we see that it's very helpful to have a very broad group looking at these issues.

And while these ethics committee members provide helpful information on legal issues, if there is a scenario with a patient that involves legal issues, the ethics committee seeks out the advice of the hospital legal counsel, he says.

Kon says that the committee has "good communication" with the hospital legal counsel, and periodically counsel will attend the ethics committee meetings, or Kon will attend meetings with legal counsel.

"There are other institutions where routinely, the legal counsel is a member of the ethics committee, and I think there are many different ways of doing it," Kon explains. "I think the benefit of having legal counsel on the ethics committee is it helps to ensure that the ethics consultants really know what the laws say about recommendations that they're making, so that if they're saying something that raises some legal questions, they're very aware of it."

But there can be a downside to the participation of legal counsel, he says.

"The downside is that sometimes it can potentially cause ethics consultants to start thinking that they know more about the law than they do know — and have a tendency then to give some legal advice, which is certainly a very bad idea . . . but we try very hard to make sure that ethic consultants are always aware that they are not there to give legal advice," Kon says.

Nancy M. P. King, JD, professor, department of social sciences and health policy, Wake Forest University School of Medicine, and co-director, WFU Center for Bioethics, Health and Society in Winston-Salem, NC, shares a similar sense related to hospital counsel serving on ethics committees.

"In my experience, it's usually considered not a good idea to have either people who are from the hospital legal office or from risk management serve on the ethics committee in their ex officio functions, because . . . their prioritization of their roles with respect to the hospital may detract or distract from [what] the ethics committee is trying to do," King says. "And that's very true."

However, she says that in her experience serving on ethics committees, she has served with "thoughtful lawyers and risk managers who viewed their role on the ethics committee as not representing the institution, but as being an information conduit, helping the committee understand . . . what the relevant law was or what relevant hospital policy was — but not saying, 'Oh, don't do that, because it's bad for the institution.'"

Kaiser's Paula Goodman-Crews, MSW, LCSW, director of bioethics in San Diego and for the Southern California region for Kaiser, concurs. In her experience, she says, she has found that the best attorneys to sit on an ethics committee are those "who are not associated with hospital risk," but, instead, may be academicians in the community.