Institutional Ethics Committees and the Shield of Immunity

Models for Ethics Consultation

The general goal of ethics consultations is to encourage ethical analysis and to “facilitate ethical reflection and decision making by the persons involved in the case” [13]. Consultations are expected to foster communication among doctor, staff, patient, and family; to clarify ethical issues and relevant concepts; to provide information, when appropriate, on relevant hospital policies or state laws; to give support; and to resolve misunderstandings by making recommendations or by designating the appropriate decision maker. Consultations often focus on the issue of foregoing life-sustaining treatment.

Ethics consultations generally conform to one of two broad models. Consultations can be loosely grouped into those provided by an ethics committee as a whole or a multidisciplinary subgroup of the committee [13, 14] and those offered by an individual consultant who may or may not be accountable to a committee [15, 16]. Each of these models has advantages and shortcomings that have been well articulated elsewhere [14, 17]. Individual consultants may provide insight into underlying premises, clarification of theoretical concepts, and “expert” analysis of moral questions. Committees, some of which have an ethicist as a member, can offer a plurality of religious and cultural perspectives, may represent the competing concerns of various nonphysician health care professionals, and may send a valuable message about the importance of open moral discussion.

The important issue, as described by Loewy [18], is to recognize that qualified clinical ethicists, whether or not they are physicians, and qualified multidisciplinary ethics committees each offer substantial contributions to ethical analysis. It is too soon to select one consultation model over another, and still other models may emerge that offer cooperation and collegiality. Legislative proposals, however, have largely focused on the more common ethics committee model, raising compelling questions about the authority ethics committees should have in decisions about patient care.

To date, most ethics committees have operated on the premise that consulting the committee and following its recommendations are optional [19], and thus committees have had a narrow scope of authority. Perhaps this has contributed to the variability in the frequency of committee use and some hesitance to consult them by members of the medical staff [20]. In some institutions, committees are isolated and remain on the periphery of medical decision making, receiving little recognition and few requests for consultations [8, 21]. In other institutions, committee consultations are sought and valued [22].

Although ethics committees are currently the source of most ethics consultations, little is known about the actual quality of the consultations themselves [23]. Disturbingly, a 1989 study [8] of hospital staff in Maryland, Virginia, and Washington, D.C., showed that 33% of those who had used one of the committees said that the committee's input was not helpful. In addition, the appropriate authority of ethics committees must be questioned in light of the considerable variability among the composition of committees, the qualifications of committee members, their familiarity with ethical concepts, and their interpersonal skills [24]. These are issues that any legislative proposal mandating ethics committees or expanding their authority must consider.

Immunity and Recommendations from Institutional Ethics Committees

Immunity provisions shield people who act in good faith from liability. Specifically, immunity is a legal bar to a claim that might otherwise be brought against a person. Civil and criminal immunity can be conferred only by legislatures through specific law.

Immunity provisions are intended to promote a recognized societal interest over otherwise protected interests of persons. They provide that persons who comply with the legislation and carry out activities as mandated by the statute may not be found civilly or criminally liable for any breach of personal interests resulting from compliance. For example, statutes requiring the reporting of child abuse shield health care professionals from liability for libel, slander, and breach of patient confidentiality for reports made in good faith.

Several reasons exist to advocate immunity provisions for either ethics committee members or health care professionals who implement committee recommendations. Ethics committee members may need legal protection for their actions, just as members of hospital peer review committees receive protection under state statutes. Immunity for committee members who act in good faith and follow fair procedures may be essential for ethics committees to function effectively without the constant fear of liability. Such protection for committee members has been debated at length in the literature [25-28], and questions focus on whether ethics committee members are already protected by state peer-review statutes and on the appropriateness of offering committee members such immunity.

Likewise, immunity provisions for health care professionals who follow advice from ethics committees would support the public's interest in keeping personal, private decisions out of courts, which may be slow, expensive, and insensitive to the values at stake. In addition, immunity for physicians enables doctors to implement difficult treatment decisions after consulting with an ethics committee without having to worry about future legal repercussions. The Model Bill to Establish Hospital Ethics Committees [3], included in the 1983 report from the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, embraced a presumption in favor of this type of immunity. It stated that, “The hospital staff, administration, and the responsible physician shall have the benefit of a presumption of freedom from civil and criminal liability for their actions taken in accordance with the committee's recommendation. Proof of gross negligence or willful disregard of the patient's interests overcomes this presumption”.

Yet despite the President's Commission statement, when Maryland enacted its pioneering law mandating committees, it set aside the recommendation and chose to develop a statute that provided immunity to ethics committee members but not to professionals who implement advice from committees [9]. New Jersey followed Maryland's lead and, so far, has not provided for immunity for professionals [10]. Hawaii, in contrast, extended the immunity provision to protect the health care professionals as well as the committee members [11]. The proposed legislation in New York State follows Hawaii's lead and offers broad immunity to all. Why have different states parted ways on the immunity issue? Should the shield of immunity protect those who implement advice from ethics committees?

Legal Authority of Institutional Ethics Committees

The first time a court suggested ethics committee participation in patient care was in the 1976 Quinlan [29] decision by the New Jersey Supreme Court, in which it was recommended that the physician consult an “ethics committee” to confirm the prognosis of a comatose woman whose family requested termination of life support. The court ruled that Quinlan's ventilator could be removed without any civil or criminal liability on the part of the family, guardian, or attending physician if the ethics committee members agreed. Thus, compliance with the recommendation of the “ethics committee” shielded the health care professionals and the hospital from liability.

Recommendations by ethics committees about morally appropriate treatment have come before the courts several times since Quinlan, but the authority accorded to these recommendations has varied considerably [30, 31]. In Georgia, the question of removing a ventilator from a patient in a chronic vegetative state was addressed in the case of In re L.H.R. [32]. The Georgia Supreme Court virtually ignored a committee's recommendation that treatment be withdrawn and concluded that the patient's family or guardian could make the decision without either court or committee intervention. In Minnesota, a committee's determination was treated as “evidence” in the case of In re Torres [33], because the Minnesota Supreme Court used the committee's documentation to illuminate the process followed in arriving at the recommendation and to validate the decision. In a decision [34] about foregoing leukemia treatment for a retarded adult, a committee had minimal influence on the Massachusetts Supreme Judicial Court. The Court stated, “We take a dim view of any attempt to shift the ultimate decision making responsibility away from the duly established courts of proper jurisdiction to any committee, panel or group, ad-hoc or permanent”.

Given the historic lack of agreement in the courts about the proper legal weight to be accorded to committee deliberations, it is inappropriate for a state legislature to preempt the judicial system by enacting a statute that confers immunity on those acting in accordance with judgments from an ethics committee.

Institutional Ethics Committees as Alternatives to Courts

Since the Quinlan decision, taking cases to court has become an accepted way to resolve troubling ethical and legal issues in patient care. It is a basic tenet of our pluralistic society that courts are the final arbiter of disputes. Yet proponents of ethics committees argue that committee consultations offer a preferable alternative to the courts [35]. Proponents claim that if ethics committees had legal clout and offered definitive decisions accompanied by immunity for health care professionals, perhaps more cases could be kept out of the unwieldy, expensive, bureaucratic court process [21, 36].

Immunity-conferring statutes, however, would give ethics committees vastly increased authority and would necessitate a shift in our expectations about these committees. Conferring immunity on those who follow a committee's “optional recommendations” essentially forces the physician to follow a committee's suggestions or to face the additional burden of defending the treatment choice and noncompliance with the advice from the ethics committee. Clearly, if ethics committees are to change from arenas for discussion to decision-making bodies, we need to examine our expectations and to ask if committee members are sufficiently qualified and if committee processes are rigorous enough to merit such an authoritative role.

Several questions require close scrutiny in assessing whether ethics committees offer a reasonable alternative to the accepted option of judicial intervention. First, do committees follow a rigorous process? Second, are committee recommendations sound? Third, would immunity conferral serve patients' interests? Fourth, do committee consultations warrant the same legal authority as clinical consultations?

A Rigorous Process?

Unlike court proceedings, ethics committee case reviews lack procedural rigor and a democratic process. The judicial system offers “due process” by which case analysis is guided using formal principles and case precedent; a consistent system of notifying interested parties, including the patient and the attending physician, that a discussion will take place; and a mechanism for appeal [37]. In contrast, many ethics committees lack uniform procedural guidelines, a consistent policy of notifying all involved parties that a committee discussion will occur, or an appeal process [19, 38]. Further, the legal system provides for a court-appointed advocate for any proceeding affecting a person's rights, yet, in ethics committee proceedings, the patient's interests may not be explicitly represented [36]. The judicial process is scrutinized by the media and the public, whereas ethics committee proceedings rarely receive the same public analysis. Finally, unresolved concerns exist about the confidentiality and discoverability of ethics committee proceedings [39], despite admonitions about the importance of committee accountability, equitable access to committee services, clear documentation of recommendations, and mechanisms for peer review [35].

Sound Recommendations?

Although long-standing discussion has occurred, there is scant research showing the soundness of recommendations from ethics committees [22]. Studies need to retrospectively review the processes used and the recommendations rendered by several committees, assessing them for soundness of reasoning; consideration of the patient's interests; consistency in similar cases; consistency between committee recommendations and hospital policy; and long-term satisfaction of doctors, patients, and families with the committee's process and outcome. Further, as Lo [38] has described, the process may be less democratic than we might hope, because committee members may pressure one another to reach consensus, may fail to consider alternatives, or may avoid controversial issues. Members of ethics committees may be pushed into hasty decisions or be overwhelmed by the realities of the professional hierarchy.

In establishing the legitimacy of a multidisciplinary committee in health care decision making, ethics committees have been compared with institutional review boards, the committees that prospectively review ethical issues of proposed clinical research [20]. Although the two types of committees differ, both committees share the unusual characteristics of multidisciplinary membership and analysis of ethical issues. However, the scant research about institutional review boards shows that they lack consistency in process and outcome, both among different institutional review boards and within the same board [40, 41], calling into question the soundness and consistency of their advice. If it is reasonable to extrapolate from research about institutional review boards to ethics committees, based on the similarities between the two committees, we should be circumspect about increasing the authority of ethics committees by offering immunity to those who follow their advice.

Additionally, the authority of institutional review boards is sharply limited—a fact that raises questions about expanding the authority of ethics committees. Although approval is required for most research using humans, if a research participant is harmed in a study previously approved by the institutional review board, the investigator is not shielded from civil or criminal liability. Thus, even the institutional committee, most like the ethics committee in composition and function, does not offer immunity for professionals who implement its advice. The soundness of advice from ethics committees, like the soundness of the advice given by institutional review boards, has not been shown. Expanding the legal impact of the recommendations provided by either group is unwarranted.

An Advocate for Patients?

In assessing the scope of authority of ethics committees, we should consider whether a decision-making role, supported by immunity for those who carry out committee recommendations, best serves patients. Ethics committees are ostensibly designed to “serve patients and protect their interests” [42], yet patients may not welcome a committee at their bedside. In a study [43] of 120 outpatients recruited from an inner-city medical staff clinic, a suburban outpatient clinic, and an ambulatory oncology clinic, 76% of outpatients thought ethics committees could be useful, but just 12% thought committees should make final decisions.

In addition, most ethics committee members are employees of the facility the committee serves. This potential for conflict of interest becomes especially troubling if the recommendations from ethics committees have legal authority, because members may feel inclined to make decisions in the interest of their employer rather than in the interest of the patient. Similarly, administrators or colleagues might place pressure on members who routinely make decisions that conflict with institutional interests or policies.

Moreover, immunity-conferring statutes may deny legal redress or appeal for patients or families. Although a patient could seek an injunction to block the implementation of advice from ethics committees, injunctions are not a reliable means of protecting patients' interests. Even assuming that the patient or family is aware that an injunction is an option and that they have the legal means of securing one, depending on the jurisdiction, the time necessary to obtain the injunction may be longer than that for implementing the recommendations from the ethics committee.

Sufficient Expertise?

Ethics committees are sometimes compared to a medical consultant, such as a cardiologist who considers a specific set of issues in patient care and makes a recommendation to the attending physician [1, 44]. However, there are several important differences between them. Whereas the expertise of a clinical consultant can be shown by completing residency requirements and by obtaining specialty board certification, the “expertise” of ethics committees is far from obvious. Many disagree about the appropriate qualifications that individual members should possess. In fact, Ross [42] says that, “The members of an ethics committee are not ethical specialists or experts … . To refer to them as consultants or to their activities as performing consultations would be to falsely represent the relationship between the committee and the health care providers and patients whom they are to serve”.

Even if a committee were able to show expertise comparable to that of a medical consultant, such as by “ethics board certification,” immunity conferral would be inappropriate. Following the advice of a clinical consultant does not shield the primary physician from liability. At best, it is evidence that the physician acted reasonably in considering the issues by seeking the help of appropriate experts. The responsibility for treatment decisions remains with the primary physician who is faced with the burden of defending the decision to follow or disregard the consultant's advice. In short, implementing advice from an ethics committee should provide no more immunity from liability than does following the recommendation of an expert clinical consultant.

Society and the courts expect physicians to take responsibility for the care patients receive, despite outside pressures imposed by consultants, committees, or review boards. In the 1987 Wickline case [45], for example, the California Court of Appeals held a physician responsible for the bad medical outcome of his decision to discharge a patient, despite the financial constraints imposed by California's third-party payer that prospectively refused to reimburse the hospital for the patient's continued care. The Court stated [46], “The physician who complies without protest with the limitations imposed by a third-party payer, when his medical judgment dictates otherwise, cannot avoid his ultimate responsibility for his patient's care. He cannot point to the health care payer as the liability scapegoat when the consequences of his own determinative medical decisions go sour”.

Further, if following an ethics committee's recommendation confers immunity, physicians might feel compelled to follow even a misguided judgment. For example, it is certainly possible that an ethics committee may make a highly questionable recommendation, such as in the famed Bouvia case [47] in the Los Angeles County Superior Court, in which a committee recommended continued forcible tube feedings against a competent patient's explicit demands. Why would anyone want immunity to be granted automatically to a physician who implemented this controversial recommendation?

The statement [4] from the Judicial Council of the American Medical Association on the issue of committee authority says in part: “Ethics committees in health care institutions should be voluntary, educational, and advisory in purpose so as not to interfere with the primary responsibility and relationship between physicians and their patients. The recommendations of the ethics committee should be offered precisely as recommendations imposing no obligation for acceptance on the part of the institution, its governing board, medical staff, attending physician, or other persons”. Similarly, the American Hospital Association guidelines [1] state, “Ethics committees should not serve as professional ethics review boards, as substitutes for legal or judicial review, or as ‘decision makers’ in biomedical ethics dilemmas. An ethics committee should not replace the traditional loci of decision making on these issues”.

Appropriate Limits of Authority for Institutional Ethics Committees

Although hospital ethics committees may lack the procedural rigor of courts and the expertise of medical consultants, they nonetheless can play an important role in patient care. Ethics committees can provide a multidisciplinary forum for discussing problematic issues; help frustrated health professionals uncover and analyze tough questions about patient care; and suggest options to patients, family members, and health care professionals [13]. If not overused by those merely seeking immunity, ethics committees can provide a valuable service to patients, physicians, and families and can keep decision making about patient care out of the courts.

The main value of ethics committees lies in their process and not necessarily their product. If their product is to receive the legal weight that immunity-conferring statutes propose, then much needs to be done to study, improve, and safeguard committee processes. In order to meet these goals, professional standards for ethics committees must be established on qualifications for committee members and on consultation procedures. These should be based on data gathered about what is effective. In the absence of strong evidence that institutional ethics committees are fair, consistent, and effective at reaching reasonable recommendations, legislating immunity from legal redress is unwarranted.