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ethicist could mitigate the chances of this occurring by proactively discussing with the cardiologist how these questions and statements could be considered leading and will likely generate misinformation. CONCLUSION Clinical ethicists should not agree to take this type of consultation because it could violate their professional obligations and professional integrity. The time constraints and communication barriers make it nearly impossible for the clinical ethicist to conduct a rich analysis that is well founded in information-gathering details. However, we recognize that the clinical ethicist in this case did agree to take the consultation, and that it would be counterproductive for us to argue the facts. Thus, we suggest that, based on the facts given, it may be ethically appropriate for the clinical ethicist to recommend a blood transfusion, assuming the surrogate is able to distinguish her husband’s preferences rather than her own interests. The ethicist can justify this recommendation by appealing to the surrogate’s intimate knowledge of her husband’s theological commitments and therapeutic preferences over the categorical SRF. On the other hand, if the ethicist has reservations about Mrs. N’s ability to make a substituted judgment, then he

may promote the SRF over Mrs. N’s testimony. Whatever the ethicist’s conclusion—be it affirming, denying, or recusing—the ethicist should (1) help alleviate feelings of guilt Mrs. N may experience, (2) address the surgical team’s moral distress, and, looking forward, (3) work to prevent similar situation from occurring in the future (see Varisco and Scheinin [2015] and Pena [2015]). &

REFERENCES American Society for Bioethics and Humanities. 2011. Core competencies for healthcare ethics consultation, 2nd ed. Glenview IL: American Society for Bioethics and Humanities. Fagerlin A., and C. E. Schneider. 2004. Enough. The failure of the living will. Hastings Center Report 34(2): 30–42. Fowler, J. W. 1981. Stages of faith. New York, NY: HarperOne. Marks, M. A. and H. R. Arkes. 2008. Patient and surrogate Disagreement in end-of-life decisions: Can surrogates accurately predict patients’ preferences? Medical Decision Making 28 (4): 524–31. Pena, A. 2015. Preventing the predictable. American Journal of Bioethics 15(1): 72–74. Varisco J., and S. Scheinin. 2005. Leading medicine through “bloodless” transplantation. American Journal of Bioethics 15(1): 75–76.

Preventing the Predictable Adam Pena, Baylor College of Medicine Health care clinicians often rely upon a clinical ethicist’s expertise to elucidate patient preferences when Jehovah’s Witness (JW) patients refuse blood products or when there is ambiguity about a JW patient’s preferences about these products or other derivatives. While it is an ethical issue that clinical ethicists often face, this case offers a unique challenge: The clinical ethicist has 30 minutes, at most, to complete the consultation before the clinical situation becomes life-threatening for Mr. N. A preventive ethics approach may have averted the ethical conundrum presented in this case. The purpose of this commentary is to explore the benefits and limitations of a preventive ethics framework, but I have no intention of providing a full analysis or offering a recommendation to the cardiologist (for recommendations see Bibler and Bruce 2015). Using a preventive ethics framework, I discuss several steps that the team could have employed to clarify Mr. N’s preferences about blood products or other derivatives early in the transplant evaluation process.

THE CONSULTATIVE PROCESS The American Society for Bioethics and Humanities (ASBH) and the Clinical Ethics Consultation Affairs Standing Committee (CECA) have stressed the importance of a establishing and maintaining a thorough and systematic process for competently conducting an ethics consultation (ASBH 2012). The clinical ethicist is expected to engage in a deliberate process that begins with gathering relevant ethical information, progresses toward initiating contact with relevant stakeholders, and finalizes in ethically sound recommendations (Carrese et al. 2012). Circumventing any of the essential steps of a comprehensive consultative process, even for the sake of time, jeopardizes the quality of the process and the ethical acceptability of the recommendations provided. The surgeon gave the clinical ethicist a 30-minute window to complete the consultation. The emergent nature of the consult, coupled with the risk of exsanguination, limits the clinical ethicist’s ability to identify and to gather all the

Address correspondence to Adam Pena, Baylor College of Medicine, Center for Medical Ethics & Health Policy, One Baylor Plaza, MS: BCM 420, Houston, TX 77030, USA. E-mail: [email protected]

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relevant ethical information as it relates to the patient’s preferences about blood products. The ethical permissibility (or impermissibility) of an emergent transfusion hinges on the clinical ethicist’s ability to gather and to analyze all the relevant facts. The clinical ethicist should be diligent in his efforts to obtain all the relevant ethical information before providing a recommendation because both courses of action (transfusion or no transfusion) have significant consequences for Mr. N. As with any consultation, it is important to avoid, if at all possible, short-circuiting information-gathering efforts (e.g. chart review, contacting the coordinator and social worker, interviewing Mr. N’s wife) because ethically relevant facts inform the analysis of the issue and are the basis for the clinical ethicist’s recommendations.

PREVENTIVE ETHICS A traditional clinical ethics approach focuses on the management of ethical issues after they have arisen in the clinical setting. A preventive ethics approach, on the other hand, emphasizes the importance of drawing attention to specific factors that lead to predictable ethical dilemmas (e. g., religious or cultural views about medical treatment) and allows clinicians and patients to develop plans to mitigate ethical conflict (Forrow, Arnold, and Parker 1993). A preventive ethics approach might have reduced the likelihood of an ethical crisis in the operating room. With the assistance of the clinical ethicist, the transplant team could have taken several steps early in the transplant evaluation process to help prevent this ethical dilemma: 1. Complete advance directives (ADs) specific to JW patients, if applicable. 2. Verify informed refusal of blood products in the informed consent process. 3. Discuss Mr. N’s religious values and develop a clinical management plan.

ADVANCE DIRECTIVE FOR HEALTH CARE The JW community encourages baptized and active members of their faith tradition to execute an AD that specifically addresses blood products, other derivatives, and medical procedures (California Probate Court x4600–4806 2011). This document emphasizes a JW’s refusal of blood products, even if necessary to preserve life. The Watchtower Bible and Tract Society prohibits receiving primary components of blood products (i.e., red blood cell, platelets, and plasma), while leaving the decisions about minor fractions of blood (i.e., albumin) to the individual JW (Dixon and Smalley 1981; Hospital Information Services for Jehovah’s Witnesses [HIS] 2012). The AD for health care document allows a JW patient to articulate a refusal of blood products and to address discrete decisions about minor fractions of blood.

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Based on the facts presented in the case, the “statement of refusal” provides some evidence that Mr. N would not want to receive blood products, but the lack of specificity and the categorical nature of the statement make it difficult to apply to the clinical realities of the situation. The “statement of refusal” does not help the clinical ethicist know whether or not Mr. N would be willing to accept blood products if it were necessary to sustain his life. The transplant coordinator and the social worker were not able to provide any further information about Mr. N’s preferences, which only compounds the uncertainty of Mr. N’s preferences. Assuming that Mr. N would not want to receive blood products, an AD for health care specific to JW patients could have been one method to avert this ethical issue. However, the AD for health care has some limitations that might be particularly salient in this case. Mrs. N states that Mr. N is not a practicing JW. This suggests that Mr. N did not maintain a strict adherence to this specific JW tenet or may have wavered in his position. The default position of the AD specific to JW patients is the categorical refusal of any and all blood products. If Mr. N did not adhere to this specific belief and thought it was acceptable to receive blood products under certain circumstances, then the AD specific to JW patients may not have been a useful tool for Mr. N to articulate his preferences.

VERIFY INFORMED REFUSAL OF BLOOD PRODUCTS Since some JW patients may fear being shunned or even exiled by their community if they agree to receive blood products, it is important to ascertain that a refusal of blood products is an informed decision consistent with that patient’s values, devoid of strong religious and emotional pressures (Naunheim, Bridges, and Sade 2011). There is legal and ethical consensus that informed consent requires adequate disclosure of information (i.e., the diagnosis, nature of the proposed medical intervention, associated risks and benefits of the intervention, and reasonable alternatives), the patient’s voluntariness, comprehension of the information, and decisional capacity. From a preventive ethics perspective, addressing possible differences in values, expectations, or beliefs early in the informed consent process can mitigate future ambiguity and value conflict between the physician and patient or patient’s family (Forrow et al. 1993). In this case, informed consent requires that the surgeon adequately disclose the risks of a heart transplant including intraoperative bleeding. One could argue that the ethical and legal obligation to discuss this specific risk is heightened by Mr. N’s “statement of refusal” of blood products because a decision to refuse blood products increases the likelihood of death in the event of exsanguination. In addition to disclosure of certain risks, Mr. N would need to demonstrate an understanding of the impact his refusal might have on projected transplant outcomes. An early discussion about the possibility of

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intraoperative life-threatening bleeding would have allowed Mr. N to consider carefully his preferences regarding blood products in light of a possible life-threatening situation. AN EARLY DISCUSSION FOCUSED ON VALUES One goal of preventive ethics is to enhance early interactions between the physician and the patient or patient’s family by fostering a shared-decision-making process. An upstream discussion helps address any potentially valueladen issues from arising at a later time. Ambiguity about a patient’s preferences indicates that there is potential for ethical conflict. A clear discussion (preferably with the patient and the patient’s identified surrogate) can help resolve ambiguity about what the patient would want in a particular circumstance. These interactions should help govern medical decision making once the patient loses decision-making capacity. There is one important fact in this case that lends support to the argument that early discussions were especially critical in this case. We should consider the possibility that Mrs. N, as a non-JW, might not make medical decisions consistent with Mr. N’s religious beliefs. Although Mrs. N said that Mr. N wanted her to make decisions in life-sustaining situations, the clinical ethicist does not have the time and another person to verify whether the information Mrs. N provided is true. This potential issue could have been alleviated by asking Mr. N to what extent he would want his wife to be involved in medical decision making and by asking him to complete a medical power of attorney appointing someone to make decisions in accordance with his wishes. A member of the transplant team (or the clinical ethicist) could have had an early discussion with Mr. N about his position toward blood products and his preference for surrogate involvement, using non-leading and open-ended questions (Forrow et al. 1993). Based on these conversations, the physicians could have then created an effective clinical management plan (including deliberate consideration of intraoperative possibilities and outcomes) that would have been consistent with Mr. N’s beliefs and alleviated the burden of decision making for Mrs. N. CONCLUSION Given the circumstances of the case, the clinical ethicist’s analysis of the issue could have argued in favor of or

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against emergently transfusing Mr. N. I do not intend to suggest that the steps I discussed in this commentary (completing an AD specific to JWs, enhancing informed consent processes, and developing management plans) are the only means of adhering to a preventive ethics framework, nor do I suggest that any one of the steps in and of themselves would be sufficient. Any number of other additional steps could have been taken to ensure that Mr. N had the opportunity to articulate his preferences to both the transplant team and Mrs. N regarding blood products early in the evaluation process. By using a combination of these steps and considering other preventive ethics strategies, the chances of this type of issue arising in the OR would have been mitigated. &

REFERENCES American Society for Bioethics and Humanities. 2011. Core competencies for healthcare ethics consultation, 2nd ed. Glenview, IL: American Society for Bioethics and Humanities. Bibler, T., and C. R. Bruce. 2015. A risky recommendation. American Journal of Bioethics 15(1): 70–72. California Probate Code xx 4600 to xx4806. 2011. Advance health care directive. Available at: https://www.cedars-sinai.edu/ About-Us/Spiritual-Care-Department/Documents/AHCDJehovahs_Witnesses.pdf Carrese, J. A., and Members of the American Society for Bioethics and Humanities Clinical Ethics Consultation Affairs Standing Committee. 2012. HCEC pearls and pitfalls: Suggested do’s and don’t’s for healthcare ethics consultants. Journal of Clinical Ethics 23(3): 234–240. Dixon, J. L., and M. G. Smalley. 1981. Jehovah’s Witnesses: The surgical/ethical challenge. Journal of the American Medical Association 246(21): 2471–2472. Forrow, L., R. M. Arnold, and L. S. Parker. 1993. Preventive ethics: Expanding the horizons of clinical ethics. Journal of Clinical Ethics 4 (4): 287–294. Hospital Information Services for Jehovah’s Witnesses. 2012. Religious and ethical position on medical therapy and related matters. New York, NY: Watch Tower and Bible Tract Society of Pennsylvania. Naunheim, K. S., C. R. Bridges, and R. M. Sade. 2011. Should a Jehovah’s Witness patient who faces imminent exsanguination be transfused? Annals of Thoracic Surgery 92(5): 1559–1564.

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