The American Journal of Bioethics
clinician is accountable for the patient, the clinician is also accountable to the ethicist. To their credit, Weise and Daly (2014) propose, “Being an effective part of the team includes contributing in a fashion consistent with a medical model of a consultant” (39). This medical model is based on the previously mentioned “Ten Commandments for Effective Consultations.” Perhaps I could suggest the following Seven Principles for Effective Ethics Consultations with the acronym FRAME IT: (1) Frame the question. (2) Review the data. (3) Apply the ethical theories. (4) Mediate the parties concerned. (5) Educate. (6) Inform the treatment team of your recommendations. (7) Tie up loose ends by following up. Of course, this might buck the hierarchy of clinical ethics literature, which I actually do respect. In conclusion, Weise and Daly create a helpful spectrum from restricted accountability to unbounded accountability, with balanced accountability somewhere in between. The role of the medical consultant has been well defined and should guide our perspective of the role of the ethics consultant. We should build our own accountability code upon this basis of practical wisdom, or phronesis, as Aristotle might say. REFERENCES Casarett, D. J., F. Daskal, and J. Lantos. 1998. The authority of the clinical ethicist. Hastings Center Report 28(6): 6–11. Available at: http://www.ncbi.nlm.nih.gov/pubmed/9868603 Dubler, N. N., M. P. Webber, and D. M. Dwiderski. 2009. Charting the future: Credentialing, privileging, quality, and evaluation in clinical ethics consultation. Hastings Center Report 39(6): 23–33. Available at: http://www.ncbi.nlm.nih.gov/pubmed/20050368
Fox, E., S. Myers, and R. A. Pearlman. 2007. Ethics consultation in United States hospitals: A national survey. American Journal of Bioethics 7(2): 13–25. doi:10.1080/15265160601109085. Available at: http://www.ncbi.nlm.nih.gov/pubmed/17366184 Geppert, C. M. A., and W. N. Shelton. 2012. A comparison of general medical and clinical ethics consultations: What can we learn from each other? Mayo Clinic Proceedings 87(4): 381–389. doi:10.1016/j.mayocp.2011.10.010. Available at: http://www.ncbi. nlm.nih.gov/pubmed/22469350 Goldman, L., T. Lee, and P. Rudd. 1983. Ten commandments for effective consultations. Archives of Internal Medicine 143: 1753–1755. Available at: http://archinte.ama-assn.org/cgi/ content/abstract/143/9/1753 Olick, R. S. 2000. Ethics consultation and the law: What is the standard of care? In Margin of error: The ethics of mistakes in the practice of medicine, ed. S. Rubin and L. Zoloth, 287–303. Hagerstown, MD: University Publishing. Rasmussen, L. 2013. The chiaroscuro of accountability in the second edition of the Core Competencies for Healthcare Ethics Consultation. Journal of Clinical Ethics 24(1): 32–40. Available at: http://www.ncbi.nlm.nih.gov/pubmed/23631333 Schneiderman, L. J. 2006. Effect of ethics consultations in the intensive care unit. Critical Care Medicine 34(11 Suppl.): S359–S363. doi:10.1097/01.CCM.0000237078.54456.33. Available at: http:// www.ncbi.nlm.nih.gov/pubmed/17057599 Scofield, G. R. 2008. Speaking of ethical expertise . . . Kennedy Institute of Ethics Journal 18(4): 369–384; discussion 385–392. Available at: http://www.ncbi.nlm.nih.gov/pubmed/19143410 Weise, K. L., and B. J. Daly. 2014. Exploring accountability of clinical ethics consultants: Practice and training implications. American Journal of Bioethics 14(6): 34–41.
Moral and Professional Accountability for Clinical Ethics Consultants William Simkulet, University of Kansas In “Exploring Accountability of Clinical Ethics Consultants: Practice and Training Implications,” Kathryn Weise and Barbara Daly (2014) propose a model for the accountability of clinical ethics consultants (CECs). Here I argue this account is insufficient, and offer a model for determining the responsibility of CECs. Weise and Daly offer a two-part definition of accountability, where a CEC is accountable for her actions if and only if she accepts responsibility for her actions and is willing to disclose her responsibility to colleagues. CECs, Weise and Daly suggest, are unsure about the scope of their ac-
countability. Although consultants do not have the final say in medical decisions, their recommendations can play an important role in matters of life and death. Weise and Daly reject the idea that CECs are ultimately responsible for the choices made by the group, or the outcomes of the medical procedures they advise on. To be accountable for something is to be, in some relevant sense, responsible for that thing. With their twopart definition of accountability, I think Weise and Daly have confused two different kinds of responsibility—moral responsibility, and professional responsibility. The first
Address correspondence to William Simkulet, University of Kansas, 311 Sunnyslope Ct., Andover, KS 67002, USA. E-mail: [email protected]
50 ajob
June, Volume 14, Number 6, 2014
Accountability of Clinical Ethics Consultants
requirement for accountability, in their model, requires that a CEC accepts responsibility for her actions; this account is similar to the compatibilist account of moral responsibility discussed in Fischer and Ravizza (1998), according to which an agent is morally responsible if and only if she takes responsibility for her actions, where one takes responsibility by coming to see oneself as an appropriate object for praise or blame. The problem with this account of responsibility is that an agent can take responsibility for anything, including things that are wholly outside of the agent’s control. Most philosophers, however, argue that moral responsibility requires control (see Simkulet 2012; Strawson 1994). One problem with this commonsense view is that it makes sense to say that agents are responsible for the consequences of their actions even though these consequences are, ultimately, outside of our control (see Zimmerman 1987). However, in each case in which it makes sense to hold an agent morally responsible for the consequences of her actions, the consequences are foreseeable outcomes of the agent’s free choices. Thus, we are merely derivatively morally responsible for the consequences of our actions, and truly morally responsible for our free choices. What makes our free choices morally praiseworthy or blameworthy is the intent, and care, with which we make them. The right thing is to do what one has the best reasons to do and to do it for those reasons. Whether, and to what degree, one is morally responsible is a matter of what choices one makes, and why. It is sometimes hard for external parties to judge who is morally responsible, and to what degree. Thus, when judging CECs, we ought to focus exclusively on professional responsibility. If we understand the second part of Weise and Daly’s definition of accountability as an attempt to define professional responsibility, it comes up lacking. While transparency between consultants is desirable, it is a far cry from responsibility. Weise and Daly recognize that a CEC’s primary obligation is to his or her patient’s welfare. Were a CEC to put any other goal ahead of the patient’s welfare, the CEC would be in clear breach of his or her professional ethics. It is my goal here to offer a theory on the scope and degree of professional responsibility. Because we can only be properly held responsible for our free choices, the scope is clear—a CEC is professionally responsible for any free choice he or she makes as a CEC. The degree of one’s professional responsibility, I suggest, is equally clear—CECs are very responsible. CECs regularly deal with matters of life and death for their patients, and just as a medical physician is held to a high moral standards, so too should CECs. The degree of one’s professional responsibility is determined by the subject matter of one’s profession. I use the following case to illustrate the scope and degree of a CEC’s professional responsibility. A clinical ethics consultant ends up with the deciding vote as to who will receive a replacement liver between patients A and B. The candidates are roughly equivalent, each is divorced with a young child, each needs a liver because of genetic factors,
June, Volume 14, Number 6, 2014
each donates time and money to charity, and each is in a relatively high-risk profession: A is a police officer, while B is a firefighter. Because both patients are similar, it would be understandable—and perhaps acceptable—for the consultant to use an arbitrary decision making process to choose between them, such as flipping a coin. Suppose that on her way to find a coin to flip, the consultant discovers some feature about patient A that the consultant disapproves of—A’s religious beliefs, political beliefs, sexual orientation, or hair color—and for this reason votes that patient B should receive the organ, not patient A. It strikes me that the consultant’s choice in this case would violate her professional responsibility. The problem here isn’t the decision that the consultant makes, or the consequences of the decision—after all, she might just as easily have chosen patient B by flipping a coin; rather, the problem is that she makes a life-or-death decision for irrelevant reasons. It is tempting to say that the consultant places her own personal moral values—in this case her disapproval of some medically irrelevant facet of patient A’s life—above her duty to impartiality as a consultant, but this isn’t correct. What makes an action morally good or bad is the reason one has to make it; the moral failing here is that the consultant’s disapproval is morally suspect. Each of us has different moral beliefs, but we also have different reasons for our moral beliefs. A clinical ethics consultant might be morally justified in discriminating against a patient because of race, sex, religion, sexual orientation, or physical features if the consultant has persuasive reasons to do so. For example, one might have been raised to believe that as people commit violence, their hair color turns a darker shade. Such a CEC might be morally justified in discriminating against dark-haired people because the CEC erroneously believes them to be vicious. To make sure that CECs don’t make decisions based on erroneous beliefs, the medical profession requires transparency with regard to the reasons their CECs make decisions. In the case just described, the CEC fails in the professional obligation to transparency, and fails to offer a substantive reason why patient A is morally inferior to patient B. REFERENCES Fischer, J. M., and M. Ravizza. 1998. Morally responsible people without a freedom. In Responsibility and control: A theory of moral responsibility, 2. New York, NY: Cambridge University Press. Simkulet, W. 2012. On moral enhancement. American Journal of Bioethics Neuroscience 3(4): 17–18. Strawson, G. 1994. The impossibility of moral responsibility. Philosophical Studies 75: 5–24. Weise, K. L., and B. J. Daly. 2014. Exploring accountability of clinical ethics consultants: Practice and training implications. American Journal of Bioethics 14(6): 34–41. Zimmerman, M. J. 1987. Luck and moral responsibility. Ethics 97(2): 274–386.
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clinician is accountable for the patient, the clinician is also accountable to the ethicist. To their credit, Weise and Daly (2014) propose, “Being an effective part of the team includes contributing in a fashion consistent with a medical model of a consultant” (39). This medical model is based on the previously mentioned “Ten Commandments for Effective Consultations.” Perhaps I could suggest the following Seven Principles for Effective Ethics Consultations with the acronym FRAME IT: (1) Frame the question. (2) Review the data. (3) Apply the ethical theories. (4) Mediate the parties concerned. (5) Educate. (6) Inform the treatment team of your recommendations. (7) Tie up loose ends by following up. Of course, this might buck the hierarchy of clinical ethics literature, which I actually do respect. In conclusion, Weise and Daly create a helpful spectrum from restricted accountability to unbounded accountability, with balanced accountability somewhere in between. The role of the medical consultant has been well defined and should guide our perspective of the role of the ethics consultant. We should build our own accountability code upon this basis of practical wisdom, or phronesis, as Aristotle might say. REFERENCES Casarett, D. J., F. Daskal, and J. Lantos. 1998. The authority of the clinical ethicist. Hastings Center Report 28(6): 6–11. Available at: http://www.ncbi.nlm.nih.gov/pubmed/9868603 Dubler, N. N., M. P. Webber, and D. M. Dwiderski. 2009. Charting the future: Credentialing, privileging, quality, and evaluation in clinical ethics consultation. Hastings Center Report 39(6): 23–33. Available at: http://www.ncbi.nlm.nih.gov/pubmed/20050368
Fox, E., S. Myers, and R. A. Pearlman. 2007. Ethics consultation in United States hospitals: A national survey. American Journal of Bioethics 7(2): 13–25. doi:10.1080/15265160601109085. Available at: http://www.ncbi.nlm.nih.gov/pubmed/17366184 Geppert, C. M. A., and W. N. Shelton. 2012. A comparison of general medical and clinical ethics consultations: What can we learn from each other? Mayo Clinic Proceedings 87(4): 381–389. doi:10.1016/j.mayocp.2011.10.010. Available at: http://www.ncbi. nlm.nih.gov/pubmed/22469350 Goldman, L., T. Lee, and P. Rudd. 1983. Ten commandments for effective consultations. Archives of Internal Medicine 143: 1753–1755. Available at: http://archinte.ama-assn.org/cgi/ content/abstract/143/9/1753 Olick, R. S. 2000. Ethics consultation and the law: What is the standard of care? In Margin of error: The ethics of mistakes in the practice of medicine, ed. S. Rubin and L. Zoloth, 287–303. Hagerstown, MD: University Publishing. Rasmussen, L. 2013. The chiaroscuro of accountability in the second edition of the Core Competencies for Healthcare Ethics Consultation. Journal of Clinical Ethics 24(1): 32–40. Available at: http://www.ncbi.nlm.nih.gov/pubmed/23631333 Schneiderman, L. J. 2006. Effect of ethics consultations in the intensive care unit. Critical Care Medicine 34(11 Suppl.): S359–S363. doi:10.1097/01.CCM.0000237078.54456.33. Available at: http:// www.ncbi.nlm.nih.gov/pubmed/17057599 Scofield, G. R. 2008. Speaking of ethical expertise . . . Kennedy Institute of Ethics Journal 18(4): 369–384; discussion 385–392. Available at: http://www.ncbi.nlm.nih.gov/pubmed/19143410 Weise, K. L., and B. J. Daly. 2014. Exploring accountability of clinical ethics consultants: Practice and training implications. American Journal of Bioethics 14(6): 34–41.
Moral and Professional Accountability for Clinical Ethics Consultants William Simkulet, University of Kansas In “Exploring Accountability of Clinical Ethics Consultants: Practice and Training Implications,” Kathryn Weise and Barbara Daly (2014) propose a model for the accountability of clinical ethics consultants (CECs). Here I argue this account is insufficient, and offer a model for determining the responsibility of CECs. Weise and Daly offer a two-part definition of accountability, where a CEC is accountable for her actions if and only if she accepts responsibility for her actions and is willing to disclose her responsibility to colleagues. CECs, Weise and Daly suggest, are unsure about the scope of their ac-
countability. Although consultants do not have the final say in medical decisions, their recommendations can play an important role in matters of life and death. Weise and Daly reject the idea that CECs are ultimately responsible for the choices made by the group, or the outcomes of the medical procedures they advise on. To be accountable for something is to be, in some relevant sense, responsible for that thing. With their twopart definition of accountability, I think Weise and Daly have confused two different kinds of responsibility—moral responsibility, and professional responsibility. The first
Address correspondence to William Simkulet, University of Kansas, 311 Sunnyslope Ct., Andover, KS 67002, USA. E-mail: [email protected]
50 ajob
June, Volume 14, Number 6, 2014
Accountability of Clinical Ethics Consultants
requirement for accountability, in their model, requires that a CEC accepts responsibility for her actions; this account is similar to the compatibilist account of moral responsibility discussed in Fischer and Ravizza (1998), according to which an agent is morally responsible if and only if she takes responsibility for her actions, where one takes responsibility by coming to see oneself as an appropriate object for praise or blame. The problem with this account of responsibility is that an agent can take responsibility for anything, including things that are wholly outside of the agent’s control. Most philosophers, however, argue that moral responsibility requires control (see Simkulet 2012; Strawson 1994). One problem with this commonsense view is that it makes sense to say that agents are responsible for the consequences of their actions even though these consequences are, ultimately, outside of our control (see Zimmerman 1987). However, in each case in which it makes sense to hold an agent morally responsible for the consequences of her actions, the consequences are foreseeable outcomes of the agent’s free choices. Thus, we are merely derivatively morally responsible for the consequences of our actions, and truly morally responsible for our free choices. What makes our free choices morally praiseworthy or blameworthy is the intent, and care, with which we make them. The right thing is to do what one has the best reasons to do and to do it for those reasons. Whether, and to what degree, one is morally responsible is a matter of what choices one makes, and why. It is sometimes hard for external parties to judge who is morally responsible, and to what degree. Thus, when judging CECs, we ought to focus exclusively on professional responsibility. If we understand the second part of Weise and Daly’s definition of accountability as an attempt to define professional responsibility, it comes up lacking. While transparency between consultants is desirable, it is a far cry from responsibility. Weise and Daly recognize that a CEC’s primary obligation is to his or her patient’s welfare. Were a CEC to put any other goal ahead of the patient’s welfare, the CEC would be in clear breach of his or her professional ethics. It is my goal here to offer a theory on the scope and degree of professional responsibility. Because we can only be properly held responsible for our free choices, the scope is clear—a CEC is professionally responsible for any free choice he or she makes as a CEC. The degree of one’s professional responsibility, I suggest, is equally clear—CECs are very responsible. CECs regularly deal with matters of life and death for their patients, and just as a medical physician is held to a high moral standards, so too should CECs. The degree of one’s professional responsibility is determined by the subject matter of one’s profession. I use the following case to illustrate the scope and degree of a CEC’s professional responsibility. A clinical ethics consultant ends up with the deciding vote as to who will receive a replacement liver between patients A and B. The candidates are roughly equivalent, each is divorced with a young child, each needs a liver because of genetic factors,
June, Volume 14, Number 6, 2014
each donates time and money to charity, and each is in a relatively high-risk profession: A is a police officer, while B is a firefighter. Because both patients are similar, it would be understandable—and perhaps acceptable—for the consultant to use an arbitrary decision making process to choose between them, such as flipping a coin. Suppose that on her way to find a coin to flip, the consultant discovers some feature about patient A that the consultant disapproves of—A’s religious beliefs, political beliefs, sexual orientation, or hair color—and for this reason votes that patient B should receive the organ, not patient A. It strikes me that the consultant’s choice in this case would violate her professional responsibility. The problem here isn’t the decision that the consultant makes, or the consequences of the decision—after all, she might just as easily have chosen patient B by flipping a coin; rather, the problem is that she makes a life-or-death decision for irrelevant reasons. It is tempting to say that the consultant places her own personal moral values—in this case her disapproval of some medically irrelevant facet of patient A’s life—above her duty to impartiality as a consultant, but this isn’t correct. What makes an action morally good or bad is the reason one has to make it; the moral failing here is that the consultant’s disapproval is morally suspect. Each of us has different moral beliefs, but we also have different reasons for our moral beliefs. A clinical ethics consultant might be morally justified in discriminating against a patient because of race, sex, religion, sexual orientation, or physical features if the consultant has persuasive reasons to do so. For example, one might have been raised to believe that as people commit violence, their hair color turns a darker shade. Such a CEC might be morally justified in discriminating against dark-haired people because the CEC erroneously believes them to be vicious. To make sure that CECs don’t make decisions based on erroneous beliefs, the medical profession requires transparency with regard to the reasons their CECs make decisions. In the case just described, the CEC fails in the professional obligation to transparency, and fails to offer a substantive reason why patient A is morally inferior to patient B. REFERENCES Fischer, J. M., and M. Ravizza. 1998. Morally responsible people without a freedom. In Responsibility and control: A theory of moral responsibility, 2. New York, NY: Cambridge University Press. Simkulet, W. 2012. On moral enhancement. American Journal of Bioethics Neuroscience 3(4): 17–18. Strawson, G. 1994. The impossibility of moral responsibility. Philosophical Studies 75: 5–24. Weise, K. L., and B. J. Daly. 2014. Exploring accountability of clinical ethics consultants: Practice and training implications. American Journal of Bioethics 14(6): 34–41. Zimmerman, M. J. 1987. Luck and moral responsibility. Ethics 97(2): 274–386.
ajob 51
