Committees, courts and compromise at the limits of life

Committees, courts and compromise at the limits of life

It is nearly always a matter of regret when the debate relating to the treatment of a seriously disabled or sick child, which frequently involves issues of life and death, needs to be conducted in a courtroom, rather than a hospital or a consulting room.

Portsmouth NHS Trust v Wyatt [2005] EWCA Civ 1181 para 86 (Wall LJ)

8.1 Reconstructing clinical ethics support

In the previous chapter we saw that there is a place in the hospital, to which the ethical ‘issues of life and death’ can be attended: the clinical ethics committee (CEC). However, we also encountered a number of objections to this group, particularly concerning its procedures for dealing with cases in which such issues arise. Meanwhile, the law courts, in which process reigns supreme, tend not to want to explore these difficult ethical dimensions. Each forum has the potential to facilitate the process of principled compromise but neither quite succeeds in realising that potential, since each appears to lack what the other possesses. The way forward, therefore, consists in their combination. However, fruitful combination of the respective expertise of the ethics committee and the judicial chamber will necessitate the reconstruction of clinical ethics support. Such reconstruction should ensure that the CEC can best deliver on its promise of ethical appraisal, whilst also meeting the demands of due process.

The task of reconstruction is not easy; even McLean, the main critic of these groups as they are currently conceived, concedes that she has no blueprint.1 However, it is worth remembering what we seek: the resolution of conflict over whether or not to treat an incapacitated patient. Here, Dubler’s work on principled resolution usefully complements our thinking about principled compromise, not least as she is often interested in the very same cases as us.2 For Dubler, principled resolution ‘combines the strengths of a mediative process that levels the playing field with legal norms and ethical conventions, and uses both as support for forging a consensus’.3 Principled resolution thus involves the search ‘for consensus in chaos’, in which ‘the process is part of the product’.4 That search occurs within recognised normative boundaries, such as those imposed by the law.5

Dubler argues that there is a role for a clinical ethics consultant here: despite a connection to the hospital or other healthcare institution, she believes (unlike some6) that such a consultant can engage in mediation in a sufficiently independent fashion, given his or her separation from decisions to date and ability to hear each side.7 Others have also acknowledged the need for a dual outsider/insider status,8 in which there is critical distance alongside direct involvement, that is, ‘ethicists who are both strangers to and participants in the clinical process’.9 Dubler advocates recourse to a single ethicist,10 trained in ‘bioethics mediation’,11 although she recognises the need occasionally to pool expertise (combining, say, lawyers and nurses) and to invite outside input.12 Her analysis, coupled with the arguments considered in the previous chapter, suggests that there are three main areas to address when reconstructing clinical ethics support, which concerns its products, processes and expertise.

8.2 The products of clinical ethics consultation: issuing consistent guidance

We start with the products of CECs’ deliberations, in particular their advice in individual case consultations. Throughout this book our focus has been on the question: to treat or not to treat? The question has been asked in numerous cases, spanning patients young and old. Built into the very concept of law is an aspiration to consistency, arising from its basic function of guiding action through a set of rules. Yet English law fails to meet the standard in these cases, since it often has more than one answer available – even in one and the same case. This failure to issue clear edicts appears to be linked to the nature of the dilemma from which the question arose, and in particular its status as an ethical dilemma. It is in the nature of an ethical dilemma that there will be arguments on either side. We might initially presume that one set of arguments will prove stronger than the other but scrutiny of the ethical arguments for and against a response in one direction or the other has failed to yield a clear way forward.

It should be no surprise, then, that CECs also struggle to meet the standard: they too differ, as a matter of fact, in their answers to the fundamental question. But we have explored how this need not be a problem as a matter of principle. In short, not only is ethical plurality present in fact but ethical pluralism is also defensible in principle. And pluralism propels the case for principled compromise – at least, where particular conditions are present and certain ground rules are observed. Attending to these ground rules, which require respectful, reliable and reflective negotiations, should then maximise consistency in at least a procedural sense. Substantive answers to individual dilemmas may still differ; after all, pluralism instructs us that sometimes there may be different, equally legitimate answers available. However, even here the aspiration to consistency is not entirely abandoned, as ensuring consistency in the procedures which reflect the virtues of compromising should help to ensure that the products of those procedures are also as consistent as possible.13

Others too believe that an appropriate balance can be struck between responding to the particularities of the individual case and striving for consistency. Reflecting on the policy-work dimension of clinical ethics consultancy, Doyal advocates translating national guidance into ‘locally agreed language’, as this ‘should create a feeling of ownership of moral and legal principles that have been agreed nationally’.14 Inherent in this argument is the assumption that some regional variation will be inevitable and even desirable. Variation is also present in different case consultations, as the Norwegian study attests.15 Yet, such fluctuations have been treated with suspicion. Researchers exploring this issue in the research ethics context have noted how ‘inconsistencies have traditionally been treated primarily as evidence of the incompetent, vexatious or capricious nature of the process’.16 But, for their part, these researchers feel the pull of pluralism: they acknowledge that differently composed committees will decide differently and they argue that some moral diversity will be inevitable, in the absence of any single correct answer.17 This does not mean that they abandon all hope of defensible answers: ‘Although the exercise of judgement may be inherently fallible, it is not merely arbitrary power and caprice; in this respect it is analogous to judicial decision-making’.18 Their solution comes close to the ground rules of principled compromise, when they insist that research ethics committees should arrive at answers, in good faith, which will be agreeable to reasonable people. Pedersen et al (who conducted the Norwegian study) come even closer, in their discussion of CECs, when they advocate ‘multidisciplinary, systematic, transparent discussions’.19

Clearly, for these various authors at least, good processes provide the key to promoting coherent and defensible answers. CECs should therefore adopt common approaches with, as Campbell urges, defined goals.20 At a minimum, the goal of case deliberation is to advise on what should (not) happen in a particular case. Pedersen et al suggest that a deliberation procedure can help to maximise consistency here.21 The provision of a procedure alone will not suffice: the group will also need to practise its application:22 ‘Good routines in clinical ethics deliberations are important to include key elements, such as identification of the main ethical problems, scrutinising key concepts and legal regulations and exploring analogous clinical situations’.23 Pedersen et al therefore provide a useful starting place. However, given their central role in maximising consistency, we need to consider further the sorts of routines and processes that are to be encouraged.

8.3 The processes of clinical ethics consultation: observing due process

Although some perceive the merits of ‘eclectic pragmatism’,24 we do need to take seriously McLean’s calls for due process and for the certainty and consistency required by ‘formal justice’.25 Amongst the most important requirements will be those pertaining to a committee’s skill set, composition, training, transparency, resourcing, monitoring and accountability (the latter of which may be linked to its potential liability). For convenience these can be organised into three groups, concerning the members, meetings and monitoring of clinical ethics support.

First, there should be uniform, minimum expectations in terms of the group’s members. Some basic skills are likely to be required across the committee: communication skills are one obvious example, as are facilitation skills (at least for the chairperson).26 These will entail the provision of appropriate training where needed.27 But the work of a CEC involves more than just these skills, since it is a multi-disciplinary endeavour,28 which depends on the presence of diverse expertise.29 The core competencies outlined by the UK CEN exemplifies this need, as it lists a wide range of required skills and knowledge.30 Indeed, the benefits of diversity seem sufficient to outweigh calls for alternative models, like the lone clinical ethicist promoted by Dubler.31 Even she acknowledges the virtues of occasionally pooling expertise and I would argue that a committee can best deliver on this – provided that it is appropriately composed.

At a minimum, a committee would seem to require clinical, legal, ethical and lay representation.32 Clinicians – medical, non-medical and from the allied health professions – should help to provide the clinical boundaries surrounding a difficult case;33 indeed, there may be questions of professional obligation (or even ‘internal morality’) on which their input will be crucial.34 Although their perspective (no more than anyone else’s) should not dominate deliberations,35 a legal representative should be able to identify situations where the legal steer is clear, as well as those where matters are ‘fuzzy’ or ‘indeterminate’.36 The legal representative can therefore provide the legal limits,37 within which a principled compromise is sought, and, again, there may be some questions on which a legal opinion will be decisive.38 Of course, in keeping with the pluralistic premise, we should not expect representatives of either of these groups (clinicians and lawyers) to converge on ‘the’ single right answer. Contrary to some clinicians’ expectations, lawyers will disagree in their respective readings of the law. This is undoubtedly inevitable, not least in an adversarial system. However, we surely can expect these experts to represent to the best of their abilities the (defensible) positions available in their particular realm of expertise, somewhat akin to the role of experts providing evidence in court proceedings.39 We will return to the ‘ethicist’ and what we might expect of him or her shortly. The layperson, meanwhile, cannot be expected to represent the total plurality of views available outside the clinic or courtroom. The role of the layperson on the committee is arguably somewhat different, however, as McCall Smith has noted: ‘Although it is possible that professional interests may set and control the agenda, lay presence is an important safeguard of patient as opposed to institutional interest (which, of course, may not always coincide)’.40 While the involvement of laypersons will entail risks and benefits (both for them and for the committee),41 McCall Smith makes a good case for (better) securing their participation.42

Secondly, there should be some common requirements in relation to the group’s meetings. Different models are available,43 but at the very least meetings should be regular,44 adequately resourced and supported, with minutes kept and deliberations communicated as appropriate. Procedures for responding to emergencies (such as the establishment of a sub-group) should be in place.45 Although confidentiality must be maintained,46 committee proceedings should be open – both to hearing from and to disseminating to those parties likely to be affected by the advice issued. Suitably anonymised annual reports will do some of this work,47 but committees will probably need to widen their rights of audience. As McCall Smith says:

His comment seems no less (and is arguably even more) applicable to individual case referrals.49

Related to such openness is accountability,50 which occupies the third group of procedural concerns, monitoring. If CECs are to attain – and be seen to attain – suitable consultancy standards,51 then audit and evaluation will be essential.52 Where appropriate, measures will be needed to remedy defective processes, which may require the provision of an appeals process,53 plus thinking (in advance of anything going wrong) about the potential liability of the committee. Perhaps there is little need to worry: Judith Hendrick suspects that legal actions in judicial review or negligence would fail, particularly if the committee is tasked only with issuing advice, which the responsible clinician is therefore free to reject.54 Put more positively, the committee will be required to work within legal boundaries,55 so we might expect the margin of (legal) error to be small.56 Yet, provision should still be made for managing malpractice within these margins and the healthcare institution should be prepared to assume vicarious liability. Unanswerable groups are otherwise sure to be seen with suspicion.

None of this should mean that the committee ought to be associated with ‘risk management’ or ‘liability control’. The legal dimension to its work should not crowd out the overriding ethical dimension.57 However, the committee should be associated with appropriate clinical governance. As Alastair Campbell says, ‘The demand for clinical governance combines a quest for values with a pressing need to make everyone feel part of the endeavour’.58 As a component of such governance and accordingly this ‘quest for values’, a CEC should be prepared to defend the values-based advice it has issued, including in a court. Of course, this inevitably raises one of the most significant questions attending the work of CECs: what sorts of ‘values-based advice’ can legitimately be expected from them? This leads us into our closing discussion, about ethical pluralism and the need for a particular sort of ethical expertise.

8.4 Expertise in clinical ethics consultation: exhibiting ethical expertise

The clinical ethics endeavour depends, for its success, upon careful engagement with each of its key words. The ‘ethics’ component must surely take priority: it is the core element of the endeavour.59 That element must then latch onto the ‘clinical’ dimension, for which clinical insight is undoubtedly needed (although – as I noted earlier – care must also be taken to ensure that clinical ethics work is not too closely allied with clinical practice).60 A sturdy bridge must then be erected between the two, so that occupants of each domain can understand the other’s language, and ethical analysis can be translated into action in clinical practice.61 All of this depends, of course, on the initial ethical analysis, for which particular ethical skills, expertise and training are needed.62

As we noted earlier, a framework for thinking through moral problems can help committees to fulfil their analytical function. There is a myriad of contenders, as was found in the Norwegian study, in which none of the nine committees investigated used only one moral theory – instead, ‘pluralistic approaches dominated’.63 Popular contenders from the USA include the four principles approach, from Beauchamp and Childress, and the four quadrants approach from Jonsen, Siegler and Winslade.64 Beauchamp and Childress describe respect for autonomy, beneficence (providing that which is beneficial), non-maleficence (avoiding that which is harmful) and justice (particularly in a distributive sense) as the four principles of biomedical ethics.65 They admit that the principles need further specification and balancing in particular moral contexts, which they argue should be regulated by a process of ‘reflective equilibrium’, in which the deliberator tacks between various moral beliefs, judgments, principles and background theories, in the pursuit of coherence.66

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