WHY PHYSICIANS SHOULD NOT DO ETHICS CONSULTS
FRANK H. MARSH Program in Medical Ethics, School of Medicine, University of Colorado Health Sciences Center, Campus Box C 245,420 East Ninth Avenue, Denver, CO 80262, USA
ABSTRACT. Increasing complexities facing physicians negotiating the bedside decision continue to fuel the debate over who is the appropriate party to offer ethics consults, should one be needed, during the decision-making process. Some very good arguments have been put forth on behalf of clinical ethicists as being the proper and best party to engage in ethics consultations. However, serious questions remain about the role of the clinical ethicist and his ability to provide the necessary level of objectivity called for in an ethics consult. I argue that the clinician's professional psyche, or mode of thinking as a professional, leaves him little room to maneuver as an objective and detached third party ethics consultant. Several factors are cited and discussed that greatly influence the analyses applied to a case problem by physicians. The most formidable of these factors are habits and the practice of defensive medicine. I conclude that clinical ethicists are less suited for the overall tasks required of an objective consultant in medical cases that appear to involve insurmountable ethical issues. Key words: collegiality, defensive medicine, ethics consultation, group consciousness,
language of physicians, objectivity in ethics consultation, professional habits, professional psyche, technology
INTRODUCTION ha recent years, no profession has undergone the dramatic transformation now being experienced by medicine. Physicians who once engaged in the art of medicine are now perceived by many to be largely highly skilled medical technicians who ply their trade in an ever increasing array of medical technology. As a result, the profession o f medicine is increasingly being viewed as an integral component of the vast medical-industrial complex which comprises America's health care system. However, in the midst of all of the changes taking place remains the image of the traditional physician-patient relationship which the medical profession would like to cling to, but which in reality is set in a world that no longer holds such relationship to be privileged in any significant sense. The most notable example of this fact can be seen in the decision-making process where an increasing number of external factors and values, heretofore consistently excluded from the decision-making process, are now interwoven in Theoretical Medicine 13: 285-292, 1992. © 1992KluwerAcademic Publishers. Printed in the Netherlands.
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the bedside decision. Ideas such as medical necessity, i.e. the balancing of both medical and economic factors in a given case, the practice of defensive medicine, and concems of third party payers, are but a few of many that tug at traditional thoughts about the decision-making process. These factors along with the more easily discernible issues such as questions of confidentiality, informed consent, or patient refusal of treatment, and the like, contribute to the increasing complexities now being experienced by physicians in negotiating the bedside decision. As a result, we are witnessing the continuing evolution of external consulting bodies such as ethics committees, bioethicists, and of late, clinical ethicists, a term which I suppose points to a new area of expertise for clinicians. The presence of these third parties as external consultants to the decisionmaking process is looked upon both favorably and unfavorably and is the subject of a rising debate among several professions over who is best suited to carry out the tasks involved in ethics consults, non-physician ethicists or physician ethicists. The positive and negative attributes of ethics committees have already been given considerable attention in the literature and will not be dicussed here. 1 Nor will a defense be offered on behalf of the clinically trained philosopher, theologian, or lawyer bioethicist. Instead, I will argue that physician ethicists are unsuited for the overall tasks required of an objective consultant in medical cases that appear to involve insurmountable ethical issues. In doing so, it is not my intention to engage in an elitist argument that sets one profession against another. Nor should my remarks be interpreted as a verbal assault upon the integrity and commitment of physicians who are now serving as bioethicists, either in a consulting role or teaching. Many of these physicians are friends and colleagues and I harbor nothing but the utmost respect for them as professionals and for what they are hoping to achieve in medicine. My quarrel with medicine stems from its tenuous attempt to maintain a position of power in a rapidly changing health care system and the misguided belief that this power is now being encroached upon by third parties under the guise of bioethicists. Before continuing, we should remember that in discussing the physician ethicist I am speaking about physicians who not only are engaged in the practice of medicine but also do ethics consults for which a fee may or may not be charged. (The idea of charging a patient for an ethics consult is a volatile issue in itself, and I imagine it will receive some attention in the future.) Many good arguments have been offered elsewhere in defense of the nonphysician ethicist, and against physicians acting as ethicists. 2 Some of these, however, have been partially countered by physicians who have acquired a respectable degree of expertise in medical ethics through extended studies in programs such as those offered by the Center for Clinical Ethics at the University of Chicago Pritzker School of Medicine and the University of Tennessee
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School of Medicine in Memphis. However, one reason has not been touched on or cited enough which I suggest seriously compromises the physician's role in an ethics consult and renders him unsuited for the task. The reason, simply stated, is that a clinician can not attain the necessary level of objectivity called for in an ethics consult due to his professional psyche, that is, his mode of thinking as a professional. The above assumption is based upon the inability of a practicing professional to lay down the mantle of his professionalism at any one point and shift into another mode of thinking, one that is quite foreign to the overall constructs of his training and profession. Professions such as medicine and law manifest a unique mode of thinking that is essential to them. This mode of thinking in turn, promotes a tunnel vision that seriously restricts an individual's ability to step outside his profession and embrace an objective stance in any large measure. Achieving objectivity is difficult enough for the lay person but this difficulty is radically compounded when approached within a profession such as medicine or law. Physicians think and act like physicians, and lawyers think and act like lawyers, and a physician who is consulting on ethical matters pertaining to a medical case will still think and act like a physician. It would seem quite formidable for a clinician to simply set aside a professional psyche which is irretrievably ingrained in his identity and then turn to a new professional role where the ability to render an objective judgment is essential. There are several reasons for this which I will discuss. These reasons are based partly on my own work with medical students, residents, physicians, and physician ethicists over the past ten years, and partly on the difficulties I encountered in moving from the role of a trial lawyer for twenty five years to that of a bioethicist. It was the latter experience that furnished me with some initial thoughts about how dependent and intertwined the professional's mode of thinking is with the infrastructure of his profession. These thoughts were later confirmed through extensive interaction with clinicians wrestling with a great number of complex cases.
HABITS AND COLLEGIALITY Habits and collegiality play an important role in shaping the physician's mode of thinking. These two factors alone provide a formidable barrier to the physician who wishes to escape the clutches of subjective solutions to difficult ethical cases. Entering the student's psyche early on in medical school, they become silent actors that continuously impact on the decision-making process. I believe that the great majority of students entering medical school today still do so with a wholesome helping of idealism and commitment. The same
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idealism and commitment is also present in most first year law students. However, as the student untertakes his first steps into the profession changes take place, idealism is muted, and a new mode of thinking emerges which with maturity will later become a part of his professional psyche. An example of this can be seen in the third year law student when a large measure of pompousness descends and enters the student's psyche making his presence in the classroom almost unbearable. For the medical student entering his clinical years, an increasing sense of power in the physician-patient relationship is realized. And habits which later become 'the art of medicine' are learned by the student, along with a tacit acceptance of the Hippocratic covenant that binds physician to physician [5]. Both of these concurrent events form the core of the clinician's subjective approach to making judgments. Reference to the importance of the Hippocratic covenant in the decisionmaking process may seem strange to some but its acceptance is an important step in shaping the physician's awareness of his role in the profession of medicine and his mode of thinking as a professional. Beginning in the third year of medical school, the student experiences an initiation into the fraternity of the medical profession through the teaching role model. Here the student experiences an increased heightening of camaraderie that began during his orientation days upon entering medical school. Unfortunately, law students are never exposed to such closeness and do not develop a sense of oneness within the profession of law. This might be due in part to the adversarial nature of law which does not exist in any general sense in medicine. The camaraderie enjoyed by medicine is quite unique among the professions. During the clinical years, and later reenforced by residency training, role and associative obligations are tacitly accepted by the physician to he, that is, no matter of choice or consent to the obligations of the profession are manifested. There is a common silent assumption of these obligations by students entering the profession of medicine. These obligations, along with the 'learned habit', are an integral part of the developing professional psyche. Dworkin suggests, and correctly I believe, that the history of social practice defines what a professional colleague is and what one member owes to the other [6]. There is really no history of assuming obligations when we enter a profession, but rather, we are rarely aware that we are entering upon any special status as we enter the profession. Professions such as medicine regard the profession's obligations as special, holding distinctly within the group rather than as general duties its members owe equally to persons outside the group. These responsibilities are held as personal, that is, they run directly from each member to each other member. In addition, they see these responsibilities as flowing from a more general responsibility each has of concern for the well-being of others in the group, a concept embraced by the Hippocratic covenant.
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What I am suggesting is that professions develop a group consciousness, which in tum suppresses objectivity. Medicine, like cultures, has a kind of enduring consciousness, an almost irreversible way of thinking that in most situations will be manifested from a subjective perspective. Try as he may, the physician ethicist cannot sufficiently undo a mode of thinking that is so tightly woven to professional habits and associative obligations. If he did so he would no longer possess the psyche of a physician, and in essence would no longer be a physician. The habits, i.e. methodologies employed in diagnosing, etc., promote professional competency and set the standard of care, and the associative obligations are necessary conditions to the individual's role as a physician within the profession of medicine.
THE PRACTICE OF DEFENSIVE MEDICINE Another important mental factor that is tied inextricably to the physician's psyche, at least in the United States, is the 'epiphenomenon of defensive medicine'. In the not too distant past, physicians were largely unconcerned with the legal issues now swirling about them. Physicians arrived at clinical decisions through a consideration of available therapeutic options after an appropriate diagnosis was made. The option selected was based on two factors only - the efficacy of the proposed treatment and whether it would be in the patient's best interests, with the concept 'best interests' being guided in the final analysis by the principle of beneficence. The process involved in arriving at a bedside decision has, of course, undergone a dramatic change during the past twenty years. Today, physicians in all specialities in the United States practice in an intense litigious environment which, though arguably, seems to have very little room for beneficence. What has developed are two events: one, defensive medicine - the management of a patient's care not only with an eye for the patient's welfare but also to preemptively fashion an unassailable record in anticipation of possible future malpractice litigation; and two, the submerging of traditional concepts about the practice of medicine into the increasing commercialization of health care. Both of these phenomena are now central to the physician's approach to patient management in the United States and other countries. This is not to say that the physician will abandon in every instance the guiding principle of beneficence, but rather that the role of beneficence in clinical decisions is unconsciously (and consciously by some) diluted by the mixture of these two important factors in the decision-making process. A good example of this can be seen in the extensive study conducted by faculty at East Carolina University School of Medicine to evaluate the impact of the current Baby Doe regulations on how neonatologists practice. The neonatologists who
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responded indicated that the regulations exerted undue pressure on them, and 23 to 33 percent agreed that they now practice differently as a result of the regulations [7]. Unfortunately, defensive medicine has become a conscious blending of the patient's interests with the economic interests of the physician - a response to two competing values that can be questioned as not being entirely in the patient's best interest. Very few physicians are immune to this conscious blending. In many cases, care is extended to a patient far beyond what objectively might be considered in his best interests. Such practices serve to further erode the patient's trust both in medicine and in his physician. It is easy, and often correct, for a patient and/or family to conclude that decisions against their interests are primarily for reasons of self-interest, e.g. protection in the case of malpractice litigation, rather than patient welfare. Such a patient believes, rightly or wrongly, that the physician has arrived at the suggested treatment just so he can protect himself in the future. It would seem that this distrust would not be dispelled by a physician ethicist but would be compounded by the intrusion of another physician into an already fragmented relationship. Patients expect physicians to act like physicians and are uncomfortable when a physician appears to have stepped outside his professional role in relation to the patient's existing case. A simple case example will help demonstrate my argument here. In a recent article, Drs. John La Puma and David Schiedermayer present a series of cases with comments to show the clinical ethicist in action at the bedside [8]. Their first case will serve as my example. A 90-year-old German woman suffering from acute cholecystitis has refused to undergo a recommended operation. The reasons cited by the patient for refusing the surgery are that "she had lived a long life, and ... the doctors' energies should be spent on those patients who are younger. She was not concerned about the cost of care, and she was not worried about dying". The clinical ethics consultant, after examining the patient, determined that the patient possessed "full decision making capacity" and that the patient should be allowed to refuse surgery. An interesting note here would be to see the physician consultant's comments in this case had the patient been 55-years-old rather than 90, and refusing what apparently would be life-saving surgery. It would be even more interesting if the patient's daughter disagreed with her mother (which is often the case) and advised the surgeon and the clinical ethics consultant that she wanted the operation for her mother. A declaration of the patient's competency would not come so easily nor be so readily accepted by the physicians where the decision not to treat is imbued with legal overtones. What I am arguing is that the physician ethicist enters a consult already in a conflict, i.e. the practice of defensive medicine~ that leaves him little room to maneuver as an objective and detached third party.
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TECHNOLOGY ANDLANGUAGE The student in medical school does not learn philosophical analyses of problems over the four years but focuses exclusively on developing his technological expertise. This is certainly what is expected of students if they are to become competent professionals. As we know, however, there also is developed a tendency to expect technical solutions to human problems. This tendency is manifested in the language of physicians, a language highly technical and encumbered by the accretions of professionalism. The language of any profession is an important particular of the professional psyche. Not only is it an attempt to preserve power through a linguistic veil of secrecy but it directs the professional's mode of thinking. The physician ethicist does not escape this burden when wrestling with treatment options, some of which that may preclude the use of medical technology. While the physician ethicist's medical training does permit perhaps a deeper comprehension of the technical intricacies involved in a given illness, this training also makes it more difficult for him to consider viable alternatives that may be medically more in the patient's best interest. The more technical expertise an individual acquires, the more ingrained it becomes in his psyche, and the more difficult it becomes to separate himself from the flow of thought associated with that expertise. Even though in the final analysis, the vast resource of knowledge of matters peculiar to a given profession separates the professional from the lay person, it has been my impression that the more knowledge one gains in his profession, the harder it becomes for him to maintain an objective perspective in the application of this knowledge. This appears true not only for medicine but for law and some of the other professions as well. Not only is the physician ethicist's mode of thinking encumbered by habits and associative obligations, as well as the mental confines of defensive medicine, it is equally burdened by his own technical expertise. There is no reason to suspect that the physician ethicist can approach a difficult case from a perspective other than that accorded to physicians.
CONCLUSION I have argued in this brief paper that a professional's way of thinking always will be largely constricted by factors specific to his profession. I believe this is particularly true of medicine and have set forth several of these factors that greatly influence the analyses applied to a case problem by physicians. The most formidable of these factors are habits and the practice of defensive medicine, both of which profoundly impact the physician's mode of thinking and render
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him less suited to do ethics consultations. Regardless of this assertion though, I would hope that arguments over which profession is best suited to do ethics consults will be laid to rest, because they bespeak a growing paranoia and parochialism that have no place in the professions involved, and in the end, can only work to the detriment o f the disciplines.
NOTES 1 See the recent comprehensive article offered by John Robertson [1]. Robertson suggests that individual health-care institutions may want to establish ethics committees on an optimal basis and that such institutions should follow the Institutional Review Board model so that they can assist physicians, patients, and families deal with different difficult dilemmas. Two other very good discussions of the subject are those put forth by Bernard Lo [2] and Mark Seigler [3]. 2 For an extensive discussion of this position see Thomasma [4].
REFERENCES 1. Robertson JA. Ethics committees in hospitals: altemative structures and responsibilty. Issues Law Med 1991; 7(1):83-91. 2. Lo B. Behind closed doors: promises and pitfalls of ethics committees. N Engl J Med 1987; 317: 46-50. 3. Seigler M. Ethics committees: decisions by bureaucracy. Hastings Cent Rep 1986; 16: 22-4. 4. Thomasma DC. Why philosophers should offer ethics consultations. Theor Med 1991; 12: 129-40. 5. May WF. Code, covenant, contract, or philanthropy. Hastings Cent Rep 1975; 5(6): 29-38. 6. Dworkin R. Law's Empire. Cambridge: Harvard University Press, 1986. 7. Kopelmans LM, Irons TG, Kopelman AE. Neonatologists judge the 'baby doe' regulation. N Engl J Med 1988; 318" 677-83. 8. La Puma J, Schiedermayer DL. The clinical ethicist at the bedside. Theor Med 1991; 12: 141-9.
