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Is there a place for lawyers on ethics committees? A view from the inside.

The value of multidisciplinary participation in institutional ethics committees is well accepted. The inclusion of lawyers, however, has been the subject of ongoing debate. As in-house hospital counsel who have actively participated in the work of ethics committees for several years, we believe that lawyers bring a valuable perspective to ethics committee deliberations.

Those who oppose the inclusion of lawyers often perceive them as narrow-minded, defensive, adversarial, uninformed, or unconcerned about patients' rights and ethical analysis. They suspect that lawyers are preoccupied with institutional liability and financial constraints and that this renders them incapable of providing unbiased advice. The presence of lawyers on ethics committees, opponents argue, diverts the discussion from ethical issues to legal risks-and the two, they maintain, rarely converge. Opponents further suggest that the unspoken fears of ethics committee members about personal and institutional liability give lawyer members an unfair advantage in promoting their views, for those who feel legally vulnerable are not likely to oppose the resident legal experts.

In addition, attorneys are often charged by hospital administrators with an unwillingness to give a clear "yes" or "no" response, while, paradoxically, ethics committee members accuse them of precisely the opposite-a desire to see everything in cut and dried terms.

Where the lawyer-member of the ethics committee is counsel to the hospital, opponents argue that there is an inherent conflict between the individual's professional duty to protect the interests of the institution and his or her duty as an ethics committee member to protect the interests of patients. Conversely, where the lawyer-member is not affiliated with the hospital, some maintain that he or she necessarily lacks a sensitivity to the institutional culture essential for offering practical advice.

As attorneys who count our membership on our respective ethics committees among the highlights of our work, we believe that these concerns are outweighed by other considerations that favor attorney participation. Of course, the value of such involvement depends to some extent on the orientation and goals of the ethics committee, especially its focus on case consultation and policy development.

Case Consultation

Attorneys play an important role on ethics committees that conduct case consultations, for they can inform other members of the legal parameters of their ethical analyses. It is essential that committees are informed about prevailing law on an issue, not only because they should be aware that they may be moving in a contrary direction, but also because the law may well reflect the prevailing ethical sense of the larger community. Further, awareness of these legal boundaries may, at times, enhance the quality of the committee's ethical reasoning by minimizing members' fears about potential legal risks. For example, when a lawyer-member offers the opinion that a surrogate decision-maker has legal authority to act on behalf of an incapacitated patient other members can set aside legal concerns to proceed with their ethical analysis.

Moreover, a lawyer can help articulate the difference between what is ethically appropriate and what is legally required. For example, ethics committee members who conclude that it is ethical to donate the organs of an anencephalic infant to patients in need of them must be reminded that current legal definitions of "brain death" do not include anencepahlic infants, and that the possibility of organ transplantation is therefore precluded. An ethics committee that endorses decisions which fall outside the boundaries of the law will quickly lose credibility within the institution and may jeopardize its own existence.

In cases where the law and ethics diverge, the lawyer-member may be in an especially good position to articulate the issue at stake. Consider the case of a homeless man in need of surgery who does not qualify for insurance benefits. The lawyer member might review the common law as well as federal statutory requirements governing whether the hospital has a legal obligation to provide treatment. Even if the lawyer should conclude that the institution has no legal obligation to provide surgery for the man, this would not end the committee's analysis, since its task is to assess whether there is an ethical obligation to provide such treatment.

Finally, to the extent that the lawyer-member has a responsibility to represent the institution's interests, we believe this obligation supports and is supported by the process of ethical decision-making in which ethics committees engage. For example, because ethics committee discussions emphasize patient autonomy, the outcome of their deliberations will often confirm the patient's choice of treatment. This, in turn, tends to place the institution at lower legal risk because an institution that respects, rather than subverts, die wishes of a patient is less likely to be sued and, if sued, more likely to find support in the law for its position. Policy Development

Lawyers can often help with other tasks in which ethics committees engage because of their training in legal analysis and their sensitivity to ambiguities in language. For example, attorneys with training in statutory construction can alert ethics committee members to the crucial differences between may," should," and "must" in policies aimed at guiding medical decision-making. A policy which states that a physician may obtain patient consent before entering a DNR order has an entirely different impact from a policy which states that a physician should or must obtain that consent Further, a well-trained lawyer may be particularly adept at translating complex, sometimes ambiguous legal language into action" words that offer practical guidance for problem-solving. A Place for lawyers Is there a place for lawyers on ethics committees? It depends. Participation by the "wrong" lawyer, that is, one who is overly legalistic and uncomfortable with ethical dilemmas may, in fact, be detrimental to the functioning of the committee. Participation by an ethically concerned and sensitive attorney can, however, enrich the quality of the discussion. The institutional affiliation of lawyer-members may be a less important consideration. While an attorney who is not affiliated with the institution may, in theory, be less susceptible to conflicts of interest than the hospital's own legal counsel, an attorney who is familiar with the philosophical and political atmosphere of an institution may well be in a better position to see the layers of issues presented by each ethical dilemma, and to refine these for discussion by the committee-to die benefit of the committee, the institution, and patients.
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Title Annotation:Legal Notes
Author:Mitchell, Suzanne M.; Swartz, Martha S.
Publication:The Hastings Center Report
Date:Mar 1, 1990
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