ࡱ>  bjbj 2rr< EnnBBBVVV82DV{ItvvvvvQQQHHHHHHH$JM IB-QQ-- In|Xvv5I7!7!7!-FBvBvH7!-H7!7!EFvs:F"HKI0{I\FF/N/NDF/NBFDQE7!QQQ I IDQQQ{I----/NQQQQQQQQQ 4: Ethical Expertise in the Clinical Setting Stephen Wear, Ph.D. At first glance, the idea that there is ethical expertise in any area sounds preposterous. Particularly in America, with our deep set notions of liberty, diversity, and individual autonomy, the idea that some people are more qualified than others to decide what is right or wrong (which seems to be what ethical expertise would amount to) just rings false. More specifically, if we move to the specific forum of the clinical setting where some of the most controversial issues of our time get played out between different parties, the notion of an ethics expert somehow assisting in the resolution of disputes and conflicts from some privileged ground sounds even less credible, if that is possible. For the resolution would be offered to people who often do not know one another, do not share common world views, faith communities and so forth, and may well have different goods and values that are variously at stake. There appears to be little if any common ground to stand on, and certainly, it would seem, no one with privileged access to it. One might, of course, attempt to defend the idea of ethical expertise in the clinical setting by emphasizing its procedural aspects, e.g. the ability to perform values clarification and dispute mediation, or build consensus. Often such activities are at the heart of a successful clinical ethics consultation. But this seems like rather thin gruel, and if this is all clinical ethics expertise amounts to, then what many would think is the core sense of expertise is not being claimed. That is: go to any standard dictionary, and the definition of expertise includes not just some sort of skill(s), but also knowledge, and again, what knowledge can one person claim in the area of ethics, at the bedside or elsewhere? My own view is that there is, in fact, ethical expertise worthy of the name available in the clinical setting and that it lies not just in various procedural/facilitative skills, but also involves substantial knowledge in various areas. I also believe that there are right and wrong answers to certain ethical issues, as well as better and worse ways of responding to ethical conflicts and disputes, and that certain people are much more capable of formulating such answers or responses. I intend to justify these assertions by first proceeding in the mode of descriptive ethics, i.e. by describing the skills and knowledge that are ingredient in clinical ethics expertise, and then presume to observe that this description goes far toward providing sufficient proof of the normative claim that it exists and is worthy of the name. In effect, once one sees what is needed, and available, for clinical ethics consultation, one should see that such skills and knowledge do legitimately claim to be a form of expertise in its fuller, thick gruel sense. How full a sense will be a pivotal issue of this paper. In the end we will have to get clearer not simply about the scope of clinical ethics expertise, but its limits. Equally, we will also have to investigate who may legitimately claim to have it, and on what grounds. Fortunately, we are not obliged to fashion a description of the elements of clinical ethics expertise out of whole cloth. We can begin by retailing a comprehensive account of it from a single source, i.e., a consensus statement by leaders in the field, and can straightforwardly do so first by briefly documenting the weaker claim, viz. that certain types of procedural or facilitative skills are needed and available for clinical ethics consultation. I. Procedural/Facilitative expertise in clinical ethics The American Society for Bioethics and Humanities (hereafter ASBH) report Core Competencies for Health Care Ethics Consultation should be seen as the seminal and primary document in this area. Generated by a blue ribbon task force of the primary American bioethics umbrella organization, it went through various drafts, was extensively circulated within the field and commented on, and represents the most mature, detailed document in the field. It claims that a wide variety of procedural skills are needed and available for clinical ethics consultation. The skills claimed fall into two broad categories, i.e. skills of ethical assessment and process skills. More specifically, the ASBH report asserts: Ethical Assessment skills include being able to discern and gather relevant data (e.g., clinical, psychosocial); assess the social and interpersonal dynamics of the case (e.g., power relations, hierarchical structures, manipulation, cultural differences); distinguish the ethical dimensions of the case from other, often overlapping, dimensions (e.g., legal, medical, psychiatric); identify various assumptions which concerned parties bring to the case (e.g., regarding quality of life, risk taking, unarticulated agendas); and identify relevant values of involved parties. The ASBH report goes on to identify various process and interpersonal skills that are also important for ethical assessment, including the ability to identify key decision-makers and relevant concerned parties and involve them in discussion; set ground rules for formal meetings (e.g. regarding length, participation, purpose, and structure of such meetings); express and stay within the limits of ethics consultants role as ethics consultant within the meeting; and create an atmosphere of trust that respects privacy and confidentiality and that allows parties to feel free to express their concerns (e.g., skill in addressing anger, suspicion, fear or resentment; skill in addressing intimidation and disruption due to power and/or role differentials). Such process skills also include, the ASBH report continues, the ability to build moral consensus. Ethics consultants must be able to help individuals critically analyze the values underlying their assumptions, their decision and the possible consequences of that decision; negotiate between competing moral views; engage in creative problem solving; the ability to utilize institutional structures and resources to facilitate the implementation of the chosen option; lastly process skills demand the ability to document consults and elicit feedback regarding the process of consultation so that the process can be evaluated. Finally, the ASBH report asserts that interpersonal skills are critical to nearly every aspect of ethics consultation in individual patient cases. Interpersonal skills include the ability to: listen well and to communicate interest, respect, support, and empathy to concerned parties; educate involved parties regarding the ethical dimensions of the case; elicit the moral views of various parties; represent the views of various parties to others; enable involved parties to communicate effectively and be heard by other parties; and recognize and attend to various relational barriers to communication. The preceding is certainly a mouthful, and one might well wonder how much any of it occurs in any given case, or the extent any individual ethics expert fully realizes such skills in practice at any given point, or regularly. Fair enough, but for the sake of argument, I will presume to suggest that even a cursory reflection on the skills listed in the above paragraph, and the sorts of cases and conflicts that are well known to regularly occur in the clinical realm, the need for such procedural expertise should be apparent. As to its embodiment in any particular ethics consultant, I will simply presume to suggest that what we have is an ideal that is legitimately stated as such, may be more or less asymptotically approached, and in certain individuals, may be seen as rising to the level of true expertise, at least in a skills or procedural sense. This is the weaker expertise claim, and I submit it is more easily made, and sufficiently so above. To the stronger, more difficult claim that clinical ethics expertise also must and does embody knowledge in this area, I now turn. II. Substantive Knowledge Expertise in Clinical Ethics Continuing with the ASBH report, it also describes one further set of skills beyond those listed above, and in doing so, addresses the issue of the knowledge that clinical ethics expertise must also bring to bear. These further skills include the ability to: access the relevant knowledge (e.g., bioethics, law, institutional policy, professional codes, and religious teachings); clarify relevant concepts (e.g., confidentiality, privacy, informed consent, best interest,); and critically evaluate and use knowledge of bioethics, law (without giving legal advice), institutional policy (e.g., guidelines on withdrawing and withholding life-sustaining treatment), and professional codes in the case. Such knowledge claims for clinical ethics expertise are categorized and extensively detailed further in a later section of the ASBH report; the types of knowledge claimed include: (1) Moral reasoning and ethical theory (e.g. consequentialism and non-consequentialist approaches (e.g., utilitarian approaches, deontological approaches such as Kantian, natural law, rights theories; theological/religious approaches; virtue, narrative, literary and feminist approaches; principle-based and casuistic (case-based) approaches; related theories of justice, with particular attention to their relevance to resource allocation, triage, and rights to health care. (2) Common bioethical issues and concepts Here a very extensive list of about every bioethics issue is retailed, with extensive exemplification, including the issues of informed consent, confidentiality, disclosure and deception; advance care planning, surrogate decision-making, end of life decision-making, beginning of life decision making, genetic testing and counseling, medical research, organ donation and transplantation, and resource allocation. (3) Clinical context: knowledge of the clinical context includes: terms of basic human anatomy and those used in diagnosis, treatment, and prognosis for common medical problems; awareness of the natural history of common illnesses; awareness of the grieving process and psychological responses to illness; familiarity with current and emerging technologies that affect health care decisions; knowledge of different health care providers, their roles, relationships, and expertise; basic understanding of how care is provided on various services such as intensive care, rehabilitation, long-term care, palliative and hospice care, primary care, and emergency trauma care. (4) The local health care institution: this will include knowledge of the institutions mission statement; structure, including departmental, organizational, and committee structure; range of services and sites of delivery, such as outpatient clinic sites; ethics consultation resources, including financial, legal, risk management, human resources, chaplain, patient representatives; medical research, including the role of the IRB; and medical records, including location and access to patient records. (5) The local health care facility's policies: including those dealing with informed consent; withholding and withdrawing life-sustaining treatment; advance directives, surrogate decision-making, health care agents, durable power of attorney, and guardianship, do-not-resuscitate orders; medical futility; confidentially and privacy policy; organ donation and procurement; human experimentation; conflicts of interest; admissions, discharge and transfer; impaired providers; conscientious objection; reproductive technology. (6) Relevant codes of ethics and professional conduct and guidelines of accrediting organizations: including codes of conduct from relevant professional organizations (e.g., medicine, nursing); local health care facility's code of professional conduct; other important professional and consensus ethics guidelines and statements (e.g., presidential commission statements); patient's bill of rights and responsibilities; relevant standards of JCAHO and other accrediting bodies (e.g. patient rights and organizational ethics standards). (7) Relevant Health Law: including both federal and state constitutional, statutory and case law dealing with such topics as end of life issues such as advance directives (including living wills and proxy appointment documents), nutrition and hydration, determination of death; surrogate decision-making, including determination of competence, appointment of surrogates; decision making for incompetent patients and minors; informed consent; organ donation and procurement; reproductive issues; confidentially, privacy and release of information; reporting requirements, including child, spouse, elder abuse and communicable diseases. III. The Embodiment of Clinical Ethics Expertise Now if the earlier section describing the procedural/facilitative expertise of the clinical ethics expert was a mouthful, this last section describing the knowledge such expertise must include appears to call for a full belly on its way to gross obesity. That is: it would seem like we would need to fill a large room with people to get even a respectable fraction of such knowledge present and available for use. We would need various clinicians, lawyers, philosophers, clergy, and administrators to approximate such skills and knowledge. How on earth might this occur in a realistic and credible sense? As is well known, the solution to this question is taken by many to lie in the establishment of an ethics committee, an organizational entity that most health care institutions in the U.S.A. (especially hospitals, but many nursing homes also), have in one form or another, in no small part because various governmental and accrediting agencies, e.g. the Joint Commission for the Accreditation of Hospitals (JCAHO) require it. And this seems to be a credible claim. Certainly at some point, a committee composed of clinicians, lawyers, philosophers, clergy, and administrators, should be able to incorporate many of the skills and knowledge identified in the ASBH report. Perhaps. But a host of questions, as well as objections, will quickly assail us about such ethics committees, including the number, training and experience of the various individuals that comprise it, and whether they actually embody some respectable threshold amount of the skills and knowledge previously identified. But most crucially for our purposes: how can such a large committee (one should think that the category of clinician would necessarily include at least one physician, a nurse and a social worker, for example; as a practical matter given the type and source of common consults, one might well also hope for a geriatrician, a psychologist or psychiatrist, and a neurologist) make itself physically present at the bedside, and do so in a timely matter (many ethical issues occurring emergently, as well as off-shift)? The answer would seem to be that only a subset of any such committee can be present; often only an individual representative of the committee. But have we not, by this answer, largely diluted the expertise, i.e. skills and knowledge, which the committee was supposed to make available? The preceding questions raise basic issues as to how clinical ethics expertise might actually be embodied in the clinical realm. On the one hand, one might emphasize, accurately, that much of the activity of clinical ethics expertise occurs in response to individual case dilemmas and disputes, and thus it is to the individual ethics consultant, or a sub-group of the ethics committee, that one must look for the reality of clinical ethics expertise. Such an emphasis, however, would obviously result in a substantial watering down of the presence of all the skills and knowledge that the ASBH report calls for and claims. But, conversely, consultation by the fuller committee would be unwieldy and inadequately responsive. There appears to be a basic tension here that, either way one goes, as much is lost as is gained. In my own experience, which I believe is echoed nationally, the responses to this tension are myriad. As a founding and ongoing member of over a dozen ethics committees, I can report that each has its own character, and each one has made different choices in responding to this tension. Some require that case consultation be done only at the full committee level; others have instituted some sort of sub-group which is empowered to speak for the whole committee; and some have authorized a single individual to field and respond to the bulk of the ethics consult requests. In each institution, where a sub-group or specific individual is given authority, retrospective monitoring occurs, and there are clear senses of when certain types of cases should still go to full committee review. But the who, when and how here is quite variable from institution to institution. To the issue of who actually embodies clinical ethics expertise, I thus submit our answer must be essentially two-fold, i.e. one form of it is embodied in some form of ethics committee, another in individual consultants, either a specific individual or an empowered sub-group of the ethics committee. The necessity of this claim, and the reasons why it can not be one or the other separately, can be gained from a fuller sense of the types of activities that ethics expertise must regularly perform in the clinical realm. Specifically, it is crucial to note, ethics expertise in the clinical realm has numerous different avenues of activity; it does not just occur in individual case consultations. As I have suggested elsewhere, these activities include: (1) case conferences of whatever sort, whether specifically designed to address bioethical issues and specific cases, or where such issues can be identified and addressed in passing, e.g. residents morning report, or mortality and morbidity conferences; (2) case consultations where one is approached regarding the resolution of some specific case.; (3) hospital policy statement development, where the guiding principles of the institution are identified, and tactics for addressing, advocating for and protecting those principles are articulated.; (4) in-service presentations that generally are case-based, but more fundamentally seek to connect hospital policy to clinical behavior, and are thus only incidentally case-based; and (5) various ad hoc activities, such as quality assurance and incident reviews, or the preparation for Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) surveys, where some sort of reports back to staff, as well as changes in institutional policy and procedure, often occur. It should be apparent, in sum, that only some of the above activities can be credibly accomplished by an individual consultant or ethics committee sub-group, however much it should also be apparent that timely and effective response to case consultation requires such individuals or sub-groups. Most importantly, hospital policy statements merit wide consideration, surely beyond even the ethics committee itself, and many institutions have detailed policies on most of the bioethics issues mentioned above, policies which often include detailed tactical guidelines as to how cases will be resolved, how such resolutions will be documented, and so forth. Thus the credibility of the individual consultant, or sub-group, will rest largely on the quality of the ethics committee that fashions the policies of the institution, retrospectively monitors the case consultations performed, and sustains an ongoing mutual feedback between consultant(s) and committee toward enhancing policy to the extent recurrent problems suggest this. The expertise of the two types of groups will clearly differ. Wide ranging reflection on policy will be the committees strong suit; no individual, however skillful, knowledgeable and experienced, could possibly possess the types of knowledge the ASBH report clearly instructs us needs to be present for this. The ethics consultant(s), conversely, can be uniquely present 24/7 for timely response to consultation requests and it should not be hard to imagine that the effective presence of many of the procedural/facilitative skills the ASBH report highlights, e.g., dispute meditation or consensus building, will not occur in the committee format. Having witnessed the attempt, I will presume to report that families, and staff, who are forced to try to work out their ethical differences in front of a large committee, are more likely to just feel daunted and overwhelmed, rather than assisted. In sum, clinical ethics expertise is embodied in the dual form of ethics committees and ethics consultant(s), and each are dependent on the other for their quality. As to the scope and limits of such expertise, especially regarding the knowledge it brings to bear, we need to take a closer look at this, beyond the ASBH reports extensive list. What sort of knowledge is being claimed here, how far does it go toward being a true expertise, and what limits, if any, does it have? IV. The Scope and limits of Clinical Ethics Knowledge It is probably sufficient to be a red-blooded American, but for those of us who have actually undergone academic study in ethics, the idea of someone having expertise in it just sounds, as I mentioned above, like an oxymoron at best, confused or plain stupid at its worst. Particularly for those of us who have had substantial study in ethics proper, for example in graduate philosophy departments, it should be quite apparent that there are numerous ethical theories, generic and specific, none of which enjoy broad, primary acceptance. Further, for all that Beauchamp and Childress want to suggest that certain primary theories end up saying the same thing in the clinical setting, those of us who have attempted to use the Georgetown Mantra of principles to resolve clinical ethics disputes know that though the principles may assist at better appreciating the nature of the conflicts, they do not help in resolving them, primarily because the principles do not come with a differential weighting as to which one to pick when two or more of them conflict. If we move from the lecture hall to the clinical situation, however, I submit that the picture changes drastically, and a form of substantive knowledge expertise emerges. A number of basic features of the realm of clinical practice merit highlighting in this regard: first, in the lecture hall or the seminar room, debate over a bioethics issue or case can proceed interminably and without conclusion. The aim will usually be to assist the students to see both sides of an issue; not seldom, the teacher may act to resist closure on an issue, perhaps by paying devils advocate for a position that he or she may not personally agree with. Not so in the clinical realm. In most cases, something will or will not be done, and everyone knows this, so the best thinking available must be brought to bear at that point in time; leaving it until later is usually not an option. And believing that there is no one right answer does not match the result; a specific course of action is chosen and instituted over alternative possibilities. So somehow we have moved from the its all relative realm of theoretical ethics to the what is the best thing we can do in this situation now, all things considered? realm of practice. Second, those who seek to describe the nature of clinical ethics expertise often tend to include the need for ethics experts to be knowledgeable in ethical theory, as the ASBH report does. My experience as an ethics consultant tends to suggest, however, that ethical theory has little if any place in the clinical realm and for good reason: as no ethical theory enjoys a consensus among ethical theorists, then there is no privileged place for any of them, whether we are talking of deontology, consequentialism, natural law, situation ethics, causuistry or what have you. So the ethics expert who proceeds in terms of one preferred approach is either begging a crucial question, or must retail each type of theoretical approach and assist other parties to the discussion to pick which approach they each wish to utilize (an enterprise for which the clinical realm clearly offers insufficient time). My point here is simply that, in 20 plus years of ethics consulting, I have never seen a case or dilemma decided by choosing some theoretical approach over others. Rarely have I ever seen such theories even discussed, certainly not at the bedside, only rarely and superficially within the ethics committee forum. And the further point is that however relative, or undetermined, or up for grabs we think ethical theory is, or lacking in consensus and therefore without any privileged position, it is not the stuff of ethical reflection in the practical realm anyway. Whatever is the stuff of clinical ethics knowledge may then be subject to expertise, and the oxymoronic character of ethical expertise may well evaporate. Thus far, the basic point is that we are in the realm of practical reason and the controversies and difference of opinion regarding theoretical ethics do not necessarily effect the knowledge claims that ethical expertise might make. Sifting the previous claims of the ASBH report, we may further point out that both ethics committees, and consultant(s), clearly need and can claim knowledge in a number of areas, including the law, institutional policy, the characteristics of the clinical context, and various codes and standard statements of agreed upon concepts. Is this all? Perhaps. One might maintain that all such knowledge comes clearly to bear on such things as hospital policy statements, but once we move to the meat and potatoes of ethics consulting, viz. the individual case consultation, then it is the consensus of the involved parties, however facilitated by the ethics consultant(s), informed by policy, etc., that is decisive for the determination of what is the right way to proceed. And here, one might argue, is where ethical expertise meets its limit. It does not in fact have some privileged position for saying what is right or wrong, but is merely facilitative of the process of determining this. It can legitimately claim expertise, in a full blown sense, on the basis of the skills and knowledge it brings to the table, but it cannot, by itself, speak with authority regarding the final resolution of any given case. I believe, however, that though the preceding paragraph states what many ethics consultants and committee members would want to maintain, it is much too humble, and misses much of what actually occurs in individual case consultation, as well as outside this sphere of activity. I submit, in fact, that a specific canon of clinical ethics principles, guidelines and tactics has been evolved that, in practice, goes way beyond simply facilitating and informing the development of consensus at the bedside. Consider: however much we value consensus, do not the knowledge claims made above clearly indicate that a great deal has already been decided before one attempts to gain consensus from interested parties? Absolutely and, as I have pointed out elsewhere in describing clinical ethics teaching, this is where we leave truly lecture hall ethics far behind: Consult any introductory text in bioethics and you will find discussions of basic bioethical issues, e.g., informed consent, truth telling, confidentiality, the right to refuse treatment, abortion, genetic engineering, access to and rationing of care, etc., with pro and con pieces to assist students to think such issues through for themselves. How different from the approach at (or near) the bedside, where much of what is presented as up for grabs in the lecture hall is simply accepted as correct and binding, at least in broad outline. Whether it be in the Patients Bill of Rights (American Hospital Association, 2001) which is hung on the walls all over the institution, or in well known legal or reviewing body (i.e. JCAHO) statements that many staff can parrot, or in the policies and procedures of the institution, many bioethical issues appear in the form of established truths. The right of competent patients to informed consent and confidentiality, to be told the truth, to refuse any and all treatment, and so forth, are seen as guiding principles for everyone. They are seen as no more up for grabs, intellectually or morally, than the clinical guidelines for managing diabetes, or the proper methods for assessing and responding to multi-infarct dementia. Teaching within such a framework of accepted moral truths goes into considerable clinical and ethical detail before any true controversy arises. Explaining how competence, i.e. decision making capacity, should be evaluated, the rank-order of surrogates for incompetent patients, what sort of interventions require informed consent and what the elements of any such disclosures should be, and so on, are clearly delineated for staff who, in the main, want to know how to proceed in the usual case. One often spends time talking tactics, whether this regards how (not whether) to tell bad news to patients and families, when and how to encourage patients to designate a surrogate or generate advance statements regarding extraordinary scenarios, or how to document what one has discussed or determined so it will be available and useful during subsequent care. The further point here is that, however much actual bioethics teaching at (or near) the bedside may incidentally key to, or be triggered by, actual controversy or disputes, a very broad and complex background of what is accepted or assumed guides most such discussion. Often these moral truths completely control what is then done, as when a patients specific prior statements are held, per hospital policy, to overrule contrary wishes or views of family members, or when self-destructive patients who are deemed competent are allowed to continue those behaviors, however much staff and family would like somehow to prevent them from occurring. Even when policy does not clearly stipulate the proper ethical course, tactics aimed at dispute mediation -- attempting to restore staff-patient/family interaction -- or simply talking it out in the hopes that consensus might be reached, are utilized to resolve problems as often as anything one would recognize as ethical reasoning. That such latter tactics as converting dispute into consensus often work suggests that the accepted truths mentioned above are not only those of the institution and its staff, but are often shared equally by patients and their families. The diversity of ethical beliefs and values itself appears to be more a creature of the lecture hall, than a presence at the bedside. The sense of clinical ethics expertise described here has gotten pretty robust. If the above is an accurate portrayal of what individual ethics case consultation amounts to, and I believe it is, particularly that much of its character and parameters are predetermined, then one might wonder if we have, in fact, produced the true super expert, and in an area where one might have least expected to find one. To sharpen the point: if all these issues are predetermined, from not just the law, but also by institutional policy, then one might even wonder if the search for consensus is often not mainly a political or customer satisfaction commodity, not an ethical one. The ethics consultant(s) may well be individually clear as to the proper result or resolution, and will intervene against any consensus that violates such guidelines and procedures. This seems to surely be the privileged ground for deciding right and wrong that we were so skeptical about initially. Is this the result we should be affirming? In large part, I believe we must. Much has already been decided, and various other perspectives or resolutions have been disqualified. The family who wants staff to lie to an inquisitive, competent patient will be instructed that this is not permitted, and the patient informed over their objections. Similarly, those who believe a quick lethal injection is preferable to whatever comfort measures management of end-of-life illness that staff is proposing will be informed that an active killing will not occur. Or the family member who insists that a dying patient be resuscitated, when the patient had previously made a competent and knowledgeable decision to have a do-not-resuscitate order, will be informed that the patients clear and specific wishes will be honored, not theirs. Less dramatically, any one witnessing the attempt at gaining consensus could easily note that a good deal of this involves stipulating what is fair game and what is not: e.g., how to think about competence and the staffs primary authority to determine its presence or absence in any given case, or what is to be considered a sufficiently specific advance directive that must be honored. I will thus admit, in my own individual consulting, that often the search for consensus is more political than ethical, and seeks to generate agreement to a way of proceeding that is already essentially clear to me as the best and only feasible solution. This is not so much because I feel wiser, or somehow better, than the other interested parties to the dispute, but rather because the weight of institutional policy, the law, the canon of clinical ethics, etc., simply, and overwhelmingly, may call for some specific resolution over any other. Hopefully I enter a family/staff conference prepared to listen closely to alternative views, and change my own views if indicated. But often this just doesnt occur and the process is much more one of getting everyone present to see the proper way to proceed. I am thus attempting to facilitate consensus and acceptance, but not decision making in its basic sense. Having said this much, the preceding merits substantial qualification. Many clinical ethics consults or case conferences involve dilemmas that occur at the margins or gray areas of such guidelines, principles and procedures, and are thus true ethical dilemmas that neither the law, institutional policy, or the expertise of the ethics consultant speak to, at least clearly and decisively. The discussion will still assume and be guided by a vast background of accepted or assumed moral truth. But it will not be determined by it. For example, the issue of whether, per his families wish, one should not inform a clinically depressed, somewhat confused, clearly dying patient of Italian extraction that he has an end stage malignancy for which only palliation is possible will surely be discussed amidst the background of the institutions guiding principle of being truthful and forthcoming with patients. The familys request will have to overcome all those strong and cogent reasons that ground this guiding principle. The issue will not be, in other words, whether truth telling to the sick and dying is ethically appropriate, as in the lecture hall, but whether the present case provides a valid exception to the rule. Similarly, if one is attempting to identify and assess a patients prior statements about aggressive end-of-life care, the principle that specific prior statements must be honored will remain operative, but the statements identified may well leave much room for interpretation, and here the status of the views of the family are at least on a par with the consultant, and the staff. In such grey areas, the limits of ethical expertise are to be found; however much the bedside reflection will be guided and constrained by the canon, the resolution of the issue(s) at hand will have much more to do with the possibilities for consensus among the major parties, and their relative authority. In sum, there is a canon of clinical ethics, variously expressed in the law, codes and rights statements, and institutional policy, that is often decisive regarding specific case dilemmas, and surely predetermines the range of tolerable outcomes in many others. Sometimes, of course, the issue is such that only a consensus of interested parties, including the ethics expert, resolves the issue; there is no higher gold standard. But, as often, the canon is more or less operative and determining of what will actually be done. To say otherwise is to ignore what happens everyday in hospitals throughout the country on a day to day basis. V. The Character of the clinical Ethics Expert A further basic point merits making here, one which I believe makes all the difference. As indicated above, I believe clinical ethics expertise resides in both ethics committees, and ethics consultant(s) for the reasons given above, and see the relationship between the two as mutually supportive and informing in the most essential of ways. For our issue of clinical ethics expertise, however, this dualism misses a further, final quality that I believe makes or breaks clinical ethics consultation. That is: in the end the eagles gather around the approach to individual case consultations as to how they are individually handled, as well as how they are carried back to the monitoring committee for further reflection, as well as policy development and improvement. In this sense, the activity of the individual consultant(s) is crucial. I say this because I have seen repeated instances where the above skills and knowledge abounded in a particular committee, but the results, at the bedside, and in the life of the institution, repeatedly fell far short of the mark. Something else was missing. This final ingredient regards the character of the individual consultant(s) and, I believe, indicates that what we finally need to be talking about here is not just expertise, but the activity of professionalism. By professionalism, I am specifically thinking of what makes a merely skillful and knowledgeable person into someone who assumes and satisfies fiduciary duties to others. To return one more time to the ASBH report, which I believe puts it just right, I submit this lies in the character of the individual consultant(s): We conclude that all ethics consultants should strive to exhibit and possess these traits: Tolerance, patience and compassion that would enable the consultant to listen well and communicate interest, respect, support and sympathyhelp people with difficult problems, those who are emotionally distraught, or those who have minority views, so that these people can be fully and respectively heard. Honesty, forthrightness and self-knowledge will help prevent the manipulative use of information and help create an atmosphere of trust necessary to facilitate formal and informal meetings. Consultants must be honest about their own limitations, their need for more knowledge, how their agendas and values are shaping a consultation, and the uncertainty of proposed solutions. Courage is sometimes needed to enable various parties, especially the politically less powerful, to communicate effectively and be heard by other parties. It is also sometimes required to take positions that are unpopular or contrary to the interests of ones employer or other powerful individuals. Prudence and Humility can inform behavior when rash or novel courses of action are being considered and enable consultants not to overstep the bounds of their role in consultation. These character traits can help consultants acknowledge possible areas of conflict between their personal moral views and their role in doing consultation. Integrity would enable consultants to pursue the option or range of options ethically required in the case even when it might be convenient to do otherwise. Integrity should inform all behavior of consultants as they strive to fulfill the trust placed in them by health care providers, patients, and families who seek help resolving ethical issues. VI. is there an ethics expert in the house? I submit that the preceding sufficiently establishes that there is, in fact, clinical ethics expertise that is truly worthy of the designation, both in that it clearly incorporates substantial skills and knowledge components, and in that it should not be hard to imagine that many people can legitimately claim to possess such skills and knowledge, however much their possession must be seen as an asymptotic approach to a complex ideal, never fully realized in the flesh. Moreover, just as with the expertise of the engineer, the surgeon, the military commander or the psychiatric counselor, much of what constitutes clinical ethics expertise can be taught. All the skills enumerated can be identified, elaborated, rehearsed, critiqued and enhanced; and knowledge of institutional policy, relevant legal cases and statutes, and so forth, can similarly be conveyed and improved. The issue gets murkier here if we move to consider how one determines which individuals actually have such expertise. This is so as it seems correct to say that expertise is not just the possession of certain skills and knowledge, but is most truly found to be present, or lacking, in the activity itself. And surely many well-tutored individuals may just not have it in this last requisite sense. Experience at such consultation is surely a necessary but not a sufficient source of such expertise; bad judgments, poor timing, flawed character, etc., can certainly render worse than useless the activity of any expert on the firing line, whether it be at the bedside, in a counseling session, in the operating room, or on the field of battle. So how does one determine if a given individual has it? Interestingly, the ASBH report begins its first section with a firm rejection of the enterprise of actually picking out which individuals actually have the expertise the report then goes on to detail. The report notes: The Task Force considered three models for using its report: formal certification of individuals or groups, accreditation of educational programs, and voluntary guidelines. We reject the certification and accreditation models and endorse the voluntary model. The report then goes on to list various reasons for this rejection, under the heading of certification for ethics consultation. Some of their reasons for this rejection are political, as in: (1) certification could undermine disciplinary diversity if it fell under the hegemony of a particular discipline (e.g., clinical medicine or academic philosophy) and was widely adopted, (2) certification could have politically divisive ramifications for the bioethics community, and (3) certification might disenfranchise large numbers of individuals currently active in the field who, for reasons unrelated to their competence to perform ethics consultation, may be unable to satisfy the rigor of a certification process. But to the heart of our is there an ethics expert in the house? issue, the ASBH report goes further: Certification increases the risk of displacing clinicians and patients as the primary moral problem-solvers at the bedside because it can give the impression that certified individuals are substantive moral experts with special standing to offer substantive positions on moral issues. And if certification of individuals or groups was based on standardized testing, the tests would have to be shown to measure the competencies in question. It is unlikely that a sufficiently reliable test could be developed to measure the competencies required for ethics consultation. So: the ASBH report, it turns out, rejects the idea that such clinical ethics experts are substantive moral experts with special standing to offer substantive positions on moral issues and goes on to admit that it is unlikely that the competencies in question can be tested for. In effect, it seems, our ASBH colleagues have rejected the ethics expertise mantle, and whatever sort of individuals they are talking about, they seem to be indicating that we are unlikely to find a way of identifying them. This is, in part, a punt, not a position. As I have documented (mainly via the ASBH report itself), as well as argued, there are substantial skill and knowledge components to what constitutes clinical ethics competence, the presence or absence of such identified skills and knowledge can surely be tested for, and all this certainly comports with the standard understanding of what it means to have expertise in an area of activity. As to the rejection that there are substantive moral experts with special standing to offer substantive positions on moral issues, the basic distinction is already available from the preceding. That is: in grey area cases, it may well be that the final resolution must be based on consensus, with the clinical ethics consultant being merely a facilitator of this. But even in such cases, one would also need to attend to what sorts of guidelines or limits the consultant would be placing on such a resolution. As noted, the canon of clinical ethics has numerous guiding principles, e.g. patient autonomy, truth-telling, etc., that would still be operative however much the individual case was raising the possibility of an exception to the rule. That is surely a substantive position on moral issues however much an exception might be being countenanced. Beyond this, I submit, numerous cases will, once all the facts are known, be legitimately seen as admitting of only one resolution, and it is the clinical ethics expert who may well end up declaring this to be so. As, for example, when a clearly competent patient decides, in consultation with his or her health care provider, that he or she wishes to be covered by a DNR order; later objections to the DNR order by the patients family will end up being rejected. In effect, on ASBHs own terms, and given now common practice, clinical ethics experts are legitimately seen as having special standing to frame, guide and, at times, declare the end result of an ethics dispute at the bedside. And much, if not all, of what grounds this authority is known, teachable and testable. To this sections key question, viz. is there an ethics expert in the house?, our answer thus far is: there may well be. But, for all of the preceding, we seem to be entitled to say, at most, that we could test for the presence of an ethics expert and probably find certain claimants wanting, given either a lack of sufficient skill or knowledge. We might well also be able to identify certain individuals who clearly embody a very robust version of the ideal, and be hard pressed to do other than admit them to this exclusive club. But this still does not mean that we could decisively pick one out in the usual case; that would require a threshold conception of this expertise that just is not available, unless we do it by some sort of consensus of various grandfathers in the field. But then one would wonder how we pick the grandfathers. Absent the provision of some decisive threshold concept for picking out or rejecting clinical ethics experts, which space here does not allow, I suppose that our answer to whether there is an ethics expert in the house will vary between Yes, No and Maybe, the latter being by far the most populous category. In a certain sense, no matter how impressive a given ethics consultants credentials, the proof will always be in the pudding, i.e. at the bedside. In another sense, however, if we stick to well-received notions of what constitutes expertise, it is simply the possession of certain skills and knowledge, which the preceding shows to be credibly available, and perhaps the fact that the given individual is or has been substantially engaged in clinical ethics consultation. Arguably, then, the answer to our question, in any particular house, will come via a call to the switchboard to see if an individual who offers such skills and knowledge is on staff. VII. but is this truly ethics expertise? By way of conclusion, however, we need to return full circle to our initial thoughts that ethical expertise is an oxymoron, and that the idea of anyone having special standing to decide ethical issues is preposterous. The previous section arguably justifies the claim that there are ethics experts around, emphasis on experts. But is this really expertise in ethics proper or something else? Can we get the word ethics out of the scare quotes or not? The easy path here is to just say no! in company with Nancy Reagan. This is so for a number of basic reasons. First, all this talk of a bioethics canon may well be an accurate description of the current state of affairs in the developed West, but none of it is universally held, much is subject to dispute. During a recent visit to a Chinese society, for example, I found that informed consent to a procedure can be performed, legally and ethically, by either the patient or a family member, with a marked preference among most parties for the latter. So, in effect, the heart of the canon, i.e. patient autonomy, informed consent and truth-telling, is out the door elsewhere. One could certainly reply that universal agreement exists in no area and is thus hardly a barrier to the claim of expertise. But given that we are talking about ethics, not who is an expert at performing a coronary artery bypass graft, this surely represents a fly in the ointment. The fly might, of course, be shrunk in size by pointing out that even in more technical areas of expertise, such as surgery, counseling or architecture, the claim to expertise is not defeated by a lack of global unanimity, but this just keeps the scare quotes off the expertise part of the claim, not the ethics part. The second and more basic reason to reply in the negative here is that there is a clear and ancient sense of theoretical responsibility, if you will, for anyone making claims about ethics. Is does not imply ought as the basic ethical principle reminds us, and wherever one starts in ethics, it is hard to see that ones job is done until a theoretical foundation is supplied to justify ones ethical judgments and principles. And the history and contemporary situation seems to clearly instruct us that such a justification has not been supplied, nor is it likely to be. Perhaps, although I will presume to close this essay with a statement of why I think the easy answer here may well not be the correct one, and suggest how a more affirmative answer might be developed. First, if one attends to the canon of clinical ethics, as found for example in Patients Bill of Rights statements, or institutional policies, one might note that there is a largely procedural quality to much of it. That is: protection of the autonomy and privacy of the individual patient, and deference to individual patients present or prior views, values and statements, are surely core elements of the canon. Further, it is not as if there has not been a robust defense of such a procedural canon, e.g. in the work of thinkers like Tris Engelhardt. Perhaps the typical graduate student/lecture hall view of the history and contemporary situation of ethics is just immature, and support for the canon has already been substantially supplied? And for all our contemporary obeisance to diversity, etc., reasonable and well informed people might well be obliged to agree that there are certain core ethical truths that must be affirmed, and any society, or individual, that does not affirm and practice them is unethical. Second and finally, there seems to be another approach here that does not presume to provide a full blown theoretical grounding, but argues more specifically within the context of the specific bioethical issue. Take the issue of truth-telling, for example. Surely truth-telling is a part of the canon we are talking about, as well as a principle that does not enjoy unanimity of either agreement or practice around the world. For my part, I would presume to suggest that the arguments for truth-telling being a guiding principle (here I think Sissela Boks classic piece captures these quite robustly) are sufficiently strong to establish it as ethically justified in any society, whatever that societies history, culture or preferences. And to appeal to and defer to the latter, it seems to me, is just to beg a question that has already been well answered. In my experience in a Chinese society, the sort of cases being presented often were like the following: a young woman with primary breast cancer is not told of this diagnosis, is not offered probably curative surgery, and is taken back to the provinces for herbal therapy at the insistence of her family; the case was then presented to me at the point she returned four months later, metastatic and no longer eminently treatable as she had been. Interestingly, the reasons why my Chinese hosts were challenged by such cases sounded remarkably like they also had the canon in their hearts and knew it was being profoundly violated. Or take the insistence that human subjects must themselves consent to submit themselves to research; do we really want to say that this principle may be violated on the basis of some other cultures history, culture or preferences, whether it be that of southern China, or Nazi Germany perhaps..? I do not think so, I think the easy answer is a cop-out, and believe further attention to foundational theories, such as Engelhardts, and/or attention to the full range of reasons for certain core principles of the canon, is the more appropriate path here. And we might just find that the scare quotes around ethics in the phrase ethics expert fall way to a large and specific extent. Bibliography American Society for Bioethics and Humanities, Core Competencies for Health Care Ethics Consultation; American Society for Bioethics and Humanities; Glenview, IL.; 1998. Beauchamp, T.L. and J.F. Childress. Principles of biomedical ethics; Oxford University Press; New York; 1979. Engelhardt, H.T.; The Foundations of Bioethics; Oxford University Press; New York; 1982. Moreno, J.D.; Deciding Together: Bioethics and Moral Consensus; Oxford University Press; New York; 1995. Wear, S.E.; Teaching Bioethics at (or near) the Bedside; Journal of Medicine and Philosophy; Vol. 27, No.4 (2002), pp. 433-445. References      ASBH report  Ibid, p.14  Ibid p. 14  Ibid, p. 13  Ibid, p. 16-17  Ibid, p. 17  Ibid, p.18  Ibid, p.19  Ibid, p.19  Ibid, p.21  Ibid, p.21  Wear, p.2  Beauchamp and Childress  Englehardt  ASBH report  Moreno  Wear, p. 436-8  ASBH report, p. 22-23.  ASBH report, pp. 2-3  Bok article; quote whole chapter )*ABJk|}~ % . 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