Hostname: page-component-586b7cd67f-2plfb Total loading time: 0 Render date: 2024-11-27T19:25:44.088Z Has data issue: false hasContentIssue false
  • English
  • Français

Invoking the Law in Ethics Consultation

Published online by Cambridge University Press:  29 July 2009

Bethany Spielman
Bethany Spielman
Affiliation:
Center for Biomedical Ethics, University of Virginia Health Sciences Center, Charlottesville
Get access Rights & Permissions [Opens in a new window]

Extract

A request that an ethics committee or consultant analyze the ethical issues in a case, delineate ethical options, or make a recommendation need not automatically but often does elicit legal information. In a recent book in which ethics consultants described cases on which they had worked, almost all cited a legal case or statute that had shaped the consultation process. During a period of just a few months, case consultation done under the auspices of one university hospital ethics committee involved interpretation of statutes on living wills, durable powers of attorney, competency, confidentiality, guardianship, AIDS testing, and disability (personal observation). At another hospital, 30% of ethics consultations were thought to involve legal issues. Attorneys at a third hospital estimated that virtually every case involves legal issues. The notion that ethics consultation is an “amalgam” of medicine, ethics, interpersonal skills, and law is gaining currency. Ethics consultation has become a channel through which law enters the clinical setting.

Type
Special Section: Ethics Consultants and Ethics Consultations
Information
Cambridge Quarterly of Healthcare Ethics , Volume 2 , Issue 4 , Fall 1993 , pp. 457 - 467
Copyright
Copyright © Cambridge University Press 1993

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Culver, CM. Ethics at the Bedside. 1990. Dover, New Hampshire: University Press of New England.Google Scholar

2. La Puma, J, Stocking, CB, Silverstine, M et al. , An ethics consultation service in a teaching hospital. Journal of the American Medical Association 1988;260:8080.Google Scholar

3. Marray, M, Templeton A. The role of legal counsel on hospital ethics committees. Ethicscope 1990(Spring):2–4.Google Scholar

4. Wolff, SM. Ethics committees and due process: nesting rights in a community of caring. Maryland Law Review 1991;50:798–858Google Scholar. Fry-Revere, S. The Accountability of Bioethics Committees and Consultants. Frederick, Maryland: University Publishing Group, 1992.Google Scholar

5. May, WF. The Patient's Ordeal. Bloomington: Indiana University Press, 1991.Google Scholar

6. Goldman, AH. Legal reasoning as a model for moral reasoning. Law and Philosophy 1989;8:131.Google Scholar

7. Jonsen, AR, Toulmin, SE. The Abuse of Casuistry. Berkeley: University of California Press, 1988.Google Scholar

8. Thomasma, DC. Legitimate and illegitimate roles for the medical ethicist. In: Ackerman, TF, Graber, GC, Reynolds, CH, eds. Clinical Medical Ethics: Exploration and Assessment. Latham, New York: University Press of America, 1987:83.Google Scholar

9. Rawls, J. A Theory of Justice. 1971.Google ScholarChildress, JF. Civil disobedience, conscientious objection, and evasive noncompliance: a framework for the analysis and assessment of illegal actions in health care. The Journal of Medicine and Philosophy 1985; 10:63CrossRefGoogle ScholarPubMed. Wasserstrom, RA. The obligation to obey the law. U.C.L.A. Law Review 1963; 10:790Google Scholar. Soper, S. The obligation to obey the law. In: Gavison, R, ed. Issues in Contemporary Legal Philosophy. 1987:127Google Scholar. Greenawalt, K. Comment. In: Gavison, R, ed. Issues in Contemporary Legal Philosophy. 1987:156Google Scholar. Gans, C. Comments. In: Gavison, R, ed. Issues in Contemporary Legal Philosophy. Oxford: Clarendon Press, 1987:180.Google Scholar

10. Zaner, RM. Ethics and the Clinical Encounter. Englewood Cliffs, New Jersey: Prentice-Hall, 1988:246.Google Scholar

11. Meisel, A. Legal myths about terminating life support. Archives of Internal Medicine 1991; 151:1497.CrossRefGoogle ScholarPubMed

12. Moreno, J. Ethics by committee. The moral authority of consensus. The Journal of Medicine and Philosophy 13(1988):411–432CrossRefGoogle Scholar. Moreno, J. Institutional ethics committees: proceed with caution. Maryland Law Review 1991;50:895, 986.Google Scholar

13. Spielman, B. Conflict in medical ethics cases: seeking patterns of resolution. Journal of Clinical Ethics (in press)Google Scholar. West, MB, Gibson, JM. Facilitating medical ethics case review: what ethics committees can learn from mediation and facilitation techniques. Cambridge Quarterly of Healthcare Ethics 1992;1:63–74.CrossRefGoogle ScholarPubMed

14. New York State Task Force on Life and the Law. Do Not Resuscitate Orders: The Proposed Legislation and Report of the New York State Task Force on Life and the Law. 1986.Google Scholar

15. Mnookin, RH, Kornhauser, L. Bargaining in the shadow of the law: the case of divorce. The Yale Law Journal 1979;88:950.CrossRefGoogle Scholar

16. Jonsen, A. Can an ethicist be a consultant? In: Abernethy, V, ed. Frontiers of Medical Ethics: Applications in a Medical Setting. Cambridge, Massachusetts: Ballinger, 1980:157.Google Scholar

17. Jonsen, A. On being a casuist. In: Ackerman, TF et al. , eds. Clinical Medical Ethics: Exploration and Assessment. 1987:117–22.Google Scholar

18. See In re T.A.C.P., 1992 WL 324714 (Fla.), Fla. Week, L.. S691.Google Scholar

19. Jonsen, A. Mrs. Moore and the doctor of philosophy. In: Fletcher, JC, Quist, N, Jonsen, AR, eds. Ethics Consultation in Health Care. Ann Arbor, Michigan: Health Administration Press, 1989:858–79.Google Scholar

20. Fletcher, JC. The bioethics movement and hospital ethics committees. Maryland Law Review 1991; 50: 859–88.Google ScholarPubMed

21. Macklin, R. Consultative roles and responsibilities. In: Cranford, RE, Doudera, AE, eds. Institutional Ethics Committees and Health Care Decision Making. Ann Arbor, Michigan: Health Administration Press, 1984:157.Google Scholar

22. Dubler, N, Nimmons, D. Ethics on Call. New York: Harmony, 1992.Google Scholar

23. Michaels, RH, Oliver, TK Jr. Human rights consultation: a 12-year experience of a pediatric bioethics committee. Pediatrics 10 1986; 78(4):566–78.Google ScholarPubMed

24. Brody, H. Did it make any difference? Ethics consultation in a community hospital. In Culver, C, ed., Ethics at the Bedside. Hanover, New Hampshire: University Press of New England.Google Scholar

25. Macklin, R. Mortal Choices: Ethical Dilemmas in Modern Medicine. Boston: Houghton Mifflin, 1987:16.Google Scholar

26. Fost, N. Do the right thing: Samuel Linares and defensive law. Law, Medicine, and Health Care 1989; 17:330.CrossRefGoogle ScholarPubMed

27. Weir, RF. Case study: conjoined twins and anencephaly (commentary). The Journal of Clinical Ethics 1990; 1:34.Google Scholar

28. Hoffman, DE. Study of Hospital Ethics Committees in Maryland, the District of Columbia, and Virginia: Study Report. Baltimore: University of Maryland Center for Health Law, 1990.Google Scholar

29. Fletcher, JC. Goals and process of ethics consultation in health care. Biolaw 1986; 2:37–47.Google Scholar

30. La Puma, J, Schiedermayer, DL. Ethics consultation: skills, roles, and training. Annals of Internal Medicine 1991; 114: 155–60CrossRefGoogle ScholarPubMed. La Puma, J, Priest, ER. Medical staff privileges for ethics consultants: an institutional model. Quality Review Bulletin 1992; 18: 17–20.Google Scholar

31. Siegler, M. Defining the goals of ethics consultation: a necessary step for improving quality. Quality Review Bulletin 1992; 18: 15–6.CrossRefGoogle ScholarPubMed

32. See Va. Code Ann. 54·1–2981–2093.

33. Brennan, T. Just Doctoring. Medical Ethics in the Liberal State. Berkeley: University of California Press, 1991.Google Scholar

34. Konner, M. Becoming a Doctor. A Journey of Initiation in Medical School. New York: Penguin, 1988: 365.Google Scholar

35. Greenawalt, K. Conflicts of Law and Morality. Oxford: Oxford University Press, 1989.Google Scholar

36. Va. Code Ann. 54.1–2981–2993.

37. Va. Code Ann. 54.1–2990.

38. South Dakota Codified Law. Public Health & Safety. 34–12D–12.

39. Robert M. Veatch, Carol Mason Spicer, Daniel Callahan, and others have pointed out that the question of “futility”, involves both facts and values. Veatch, RM, Spicer, CM. Medically futile care: the role of the physician in setting limits. American Journal of Law & Medicine 1991; 18:15.Google ScholarCallahan, D. Medical futility, medical necessity: the problem-without-a-name. Hastings Center Report 1991; 21(4):30.CrossRefGoogle ScholarPubMed

40. John Ladd introduced Judith Shklar's definition of legalism as follows:

“the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules”… The term “legalism” will be used extremely broadly … to stand for an attitude or general approach rather than a specific doctrine. The main thrust of legalism, however, is the legalization of morality and the moralization of law, which generally imply the assimilation of moral and legal issues, of moral reasoning and legal reasoning, and, in general, of moral problems and legal problems.

Ladd, J. Legalism and medical ethics. The Journal of Medicine and Philosophy 1979; 4:70–1.CrossRefGoogle ScholarPubMed

41. Cases decided by the U.S. Supreme Court, federal statutes and regulations, and state cases, statutes, and regulations are binding, whereas cases, statutes, and regulations from outside the jurisdiction are not. However, if these outside cases have been decided by courts high in the appellate structure, were particularly well reasoned, involved facts closely analogous to those in the case at issue, or have been followed by other courts, they may have persuasive weight.

42. See Brody H. The Society of Bioethics Consultation, the professional organization for ethics consultants, decided in 1988 that familiarity with trends in healthcare law was one of four basic knowledge and skill areas in the field.

43. See note 4. Fry-Revere. 1992.

44. See note 4. Fry-Revere. 1992.

45. Brody, H. The Healer's Power. New Haven, Connecticut: Yale University Press, 1992.Google Scholar

46. Ross, HL. Settled Out of Court: The Social Process of Insurance Claims Adjustment. Volente, Texas: Aldine, 1980. 2nd edition.Google Scholar

47. Ackerman, TF. Medical ethics in the clinical setting: a critical review of its consultative, pedagogical and investigative methods. In: Ackerman, TF et al. , eds. Clinical Medical Ethics: Exploration and Assessment. 1987: 145–57.Google Scholar

48. See note 13. West, Gibson. 1992.

49. See note 4. Wolff. 1991.

50. Veatch, RM. Clinical ethics and theory. In: Hoffmaster, B, Freedman, B, Fraser, G, eds. Clinical Ethics: Theory and Practice. Clifton, New Jersey: Humana Press, 1989: 7.CrossRefGoogle Scholar

51. Marks, JH. Advocacy in Health Care. 1986.Google Scholar

52. Benjamin, M, Curtis, J. Ethics in Nursing. Oxford: Oxford University Press, 1981: 9.Google Scholar

53. See the American Bar Association (ABA) Model Code of Professional Responsibility and Model Rules of Professional Conduct. Chicago: American Bar Association.