Hostname: page-component-586b7cd67f-rcrh6 Total loading time: 0 Render date: 2024-12-02T19:15:02.226Z Has data issue: false hasContentIssue false
  • English
  • Français

How Should Ethics Consultants Weigh the Law (and other Authoritative Directives)?

Published online by Cambridge University Press:  27 January 2021

Peter Koch
Get access Rights & Permissions [Opens in a new window]

Abstract

In the continuing debate about the role of the Clinical Ethics Consultant in performing clinical ethics consultations, it is often assumed that consultants should operate within ethical and legal standards. Recent scholarship has focused primarily on clarifying the consultant's role with respect to the ethical standards that serve as parameters of consulting. In the following, however, I wish to address the question of how the ethics consultant should weigh legal standards and, more broadly, how consultants might weigh authoritative directives, whether legal, institutional, or professional, against other normative considerations. I argue that consultants should reject the view that authoritative directives carry exclusionary reason for actions and, further, ethicists should interpret directives as lacking any moral weight qua authoritative directive. I then identify both implications and limitations of this view with respect to the evolving role of the ethics consultant in an institutional setting, and in doing so propose the kinds of considerations the ethicist should weigh when presented with an authoritative directive.

Type
Independent Articles
Information
Journal of Law, Medicine & Ethics , Volume 48 , Issue 4: Climate Change and the Legal, Ethical, and Health Issues Facing Healthcare and Public Health Systems , Winter 2020 , pp. 768 - 777
Copyright
Copyright © American Society of Law, Medicine and Ethics 2020

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

American Society for Bioethics and Humanities’ Core Competencies Update Task Force, Core Competencies for Health Care Ethics Consultation: The Report of the American Society for Bioethics and Humanities, 2nd ed. (Glenview, IL: American Society for Bioethics and Humanities, 2011): at 7.Google Scholar
Brummett, A. and Salter, E. K., “Taxonomizing Views of Clinical Ethics Expertise,” The American Journal of Bioethics 19, no. 11 (2019): 50–61.CrossRefGoogle Scholar
Celie, K. B. and Prager, K., “Health Care Ethics Consultation in the United States,” AMA Journal of Ethics 18, no. 5 (2016): 475–478.Google Scholar
DeRenzo, E., “Moving Towards a New Hospital Model of Clinical Ethics,” Journal of Clinical Ethics 30, no. 2 (2019): 121–127.Google Scholar
American Society for Bioethics and the Humanities, Core Competencies for Healthcare Ethics Consultation (Glenview, IL: American Society for Bioethics and the Humanities, 1998); American Society for Bioethics and Humanities, supra note 1.Google Scholar
Vaughan, D.M. et al., “Roles of the Clinical Ethics Consultant: A Response to Kornfeld and Prager,” Journal of Clinical Ethics 30, no. 2, (2019): 117–120.Google Scholar
Id.Google Scholar
Fletcher, J.C. and Spencer, E.M., “Ethics Services in Health Care Organizations” in Fletcher’s, J. C. “Introduction” to Clinical Ethics, ed. Fletcher, J.C., Spencer, E.M., and Lombardo, P.A. (Hagerstown, MD: University Publishing Group, 2005): 318–319.Google Scholar
American Society for Bioethics and Humanities, “Code of Ethics and Professional Responsibilities,” (2014), available at <https://asbh.org/uploads/publications/ASBH%20Code%20of%20Ethics.pdf> (last visited November 12, 2020.+(last+visited+November+12,+2020.>Google Scholar
Carrese, J. A. and the Members of the American Society for Bioethics and Humanities Clinical Ethics Consultation Affairs Standing Committee, “HCEC Pearls and Pitfalls: Suggested Do’s and Don’ts for Healthcare Ethics Consultants,” The Journal of Clinical Ethics 23, no. 3 (2012): 234–240.Google Scholar
Alexy, R., “Some Reflections on the Ideal Dimension of Law and on the Legal Philosophy of John Finnis,” American Journal of Jurisprudence 58, no. 2 (2013): 97–110; Finnis, J, “Law as Fact and as Reason for Action: A Response to Robert Alexy on Law’s ‘Ideal Dimension’,” American Journal of Jurisprudence 59, no. 1 (2014): 85–109; Raz, J, The Authority of Law, 2nd ed. (Oxford: Oxford University Press, 2009): 318; Hurd, H, “Challenging Authority,” Yale Law Journal 100, no. 6 (1991): 1614–1677; Raz, J., The Morality of Freedom (Oxford: Oxford University Press, 1986); Wolff, R.P., In Defense of Anarchism (New York: Harper and Row, 1970).Google Scholar
While I do not think that in practice ethics consultants accept authoritative directives as in principle overriding and exclusionary — meaning that authoritative directives, when applicable, offer a reason for action that excludes all other reasons — it is worth exploring the theoretical foundation for why ethics consultants typically do not accept authority in this way, as this will provide a baseline for how consultants should in fact weigh authority.Google Scholar
Wolff, supra note 13, at 4-19.Google Scholar
Hurd, supra note 13, at 1667.Google Scholar
Hurd supra note 13, at 1617.Google Scholar
Hurd supra note 13, at 1613.Google Scholar
Hurd, supra note 17.Google Scholar
Smith, M.B.E., “Is There a Prima Facie Obligation to Obey the Law?” Yale Law Journal 82, no. 5 (1973): 950–976.CrossRefGoogle Scholar
Id., at 960-964.Google Scholar
Locke, J., Two Treatises on Civil Government (London: G. Routledge and Sons, 1887).Google Scholar
Hurd provides a detailed argument for why each fails to justify the moral obligation to obey the laws of a democratic majority. See Hurd, supra note 13, at 1667-1673; M.B.E. Smith provides arguments against the three common justifications for the prima facie moral obligation to obey the law: fair play, utilitarian considerations, and consent-based justifications.Google Scholar