Health Care Ethics Consultation: 'Training in Virtue' - Springer Link

Human Studies 22: 25–41, 1999. HEALTH CARE ETHICS CONSULTATION: ‘TRAINING IN VIRTUE’ © 1999 Kluwer Academic Publishers. Printed in the Netherlands.

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Health Care Ethics Consultation: ‘Training in Virtue’ FRANÇOISE BAYLIS Dalhousie University, Office of Bioethics Education and Research, Room C-105, 5849 University Avenue, CRC Building, Halifax, Nova Scotia, B3H 4H7, Canada

Abstract. In philosophy, intelligence is less important than character, or so Wittgenstein once argued. In this paper, in a similar vein, I suggest that in health care ethics consultation character is of preeminent importance. I suggest that the activity of ethics consultation can be understood as “training in virtue,” and what distinguishes the good health care ethics consultant from his/her average colleague are differences in traits of character. The underlying assumption is that one’s use of knowledge and abilities are ultimately a function of who one is and how one perceives and confronts situations of moral uncertainty and conflict. In discussing the original case presented by Mark Bliton, I focus on the virtues of wisdom, justice, courage, compassion and humility.

Several years ago I wrote an article in which I tried to distinguish persons with moral expertise from moral experts (Baylis, 1989). I argued that although there was no clear demarcation line, there was considerable difference. Using a distinction elucidated by Gilbert Ryle between knowing-that and knowinghow, I argued that moral experts, as contrasted with persons with moral expertise, were not only skilled in acquiring and retaining ethical knowledge, but they were also adept at organizing and exploiting this knowledge – thus effectively contributing to the framing and the resolution of complex moral problems. Since the time of writing this article, the terms of the discourse have changed considerably. In my view, however, the distinction between “knowing that something is the case and knowing how to do things” (Ryle, 1971a, p. 215) remains relevant. At the very least, it helps us to identify good health care ethics consultants – those whose “knowledge is actualised or exercised” in what they do (Ryle, 1971a, p. 218). To quote Ryle more fully: Knowing how to behave is exhibited by correct behaviour, just as knowing how to cook is exhibited by palatable dishes. . . . You couldn’t define a good chef as one who cites Mrs Beeton’s recipes, for these recipes describe how good chefs cook, and anyhow the excellence of a chef is not in his [sic] citing but in his cooking. (Ryle, 1971a, p. 222)

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By analogy, a good health care ethics consultant exercises her/his skill not in reciting ethical rules, principles, theories or decision-making models, but in engaging in consultations that involve the intelligent (though at times perhaps unwitting) application of these in an effort to assist others in making and, perhaps more importantly, in pursuing “choices that are morally acceptable to themselves and ‘within the bounds of communal and institutional acceptability”’ (Baylis, 1994, p. 28). But what does the intelligent application of ethical rules, principles, etc., involve? If we understand the activity of ethics consultation as “training in virtue,” and we deem the good health care ethics consultant to be a person of character or virtue, then the intelligent application of ethical rules, principles, etc., involves exercising certain emotional and rational skills while, at the same time, further developing one’s character to ensure that when similar situations are confronted, there is a deeper understanding and a richer response. The Good Health Care Ethics Consultant There is an extensive literature on the knowledge and skills required of those engaged in ethics consultation that dates from the early nineteen seventies. Drawing on this literature, a group of scholars and practitioners recently developed a functional description of the health care ethics consultant – a Profile – which includes a comprehensive listing of knowledge requirements and abilities (Baylis, 1994) (see Appendix 1). While these knowledge requirements and requisite abilities arguably are important, these elements of the Profile are not considered in the discussion of the case written by Mark Bliton. Rather, the discussion that follows focuses on some of the virtues and traits of character that complete the Profile as these ultimately determine what the health care ethics consultant, in this case Mark Bliton, does. As Stanley Hauerwas writes, “As persons of character we do not confront situations as mudpuddles into which we have to step; rather, the kind of ‘situations’ we confront and how we understand them are a function of the kind of people we are” (Hauerwas, 1985, p. 120). It follows that “whether” and “how” Bliton uses his knowledge and abilities in ethics consultation is ultimately a function of who he is, how he perceives and confronts moral situations of uncertainty and conflict, and what he is committed to. Traits of Character To this day, there remains a lack of consensus regarding which virtues are (should be considered) morally central. And while there may be some agreement on the importance of specific virtues, there is significant

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disagreement about the substance or meaning of these virtues. The purpose of this paper is not to resolve this disagreement, but rather to explore the meaning of wisdom, justice, courage, compassion, and humility, as these apply to health care ethics consultation. Wisdom [T]he health care ethics consultant needs wisdom to reason through the stages of deliberation and judgment toward ethically defensible options, recommendations, and actions. (Baylis, 1994, p. 37) Ethics consultation is an interpretive activity that requires the critical and practical application of experience and knowledge. In all ethics consultations, the consultant needs to figure out “what is going on?” and “what is the right thing to do, all things considered?” (Benjamin and Curtis, 1981). The consultant’s answer to the first of these questions is of critical importance since it necessarily informs her/his response to the second question. What is Going On? Ascertaining what is going on in a moral situation is a complex endeavour; it is, if you will, “an elaborate venture” in what Ryle calls “thick description”. In several essays on Rodin’s le Penseur, Ryle distinguishes between “thin” and “thick” descriptions. In his view, a “thin description” is one that accurately accounts for observable phenomena. In contrast, a “thick description” is one that layers meaning on the “phenomenalistic” observation. In an effort to clarify the distinction, Ryle presents the following anecdote: Two boys fairly swiftly contract the eyelids of their right eyes. In the first boy this is only an involuntary twitch; but the other is winking conspiratorially to an accomplice. At the lowest or the thinnest level of description the two contractions of the eyelids may be exactly alike. . . . Yet there remains the immense but unphotographable difference between a twitch and a wink. (Ryle, 1971b, p. 480) Insisting on this point, Ryle writes, “. . . [a] thick description is a many-layered sandwich, of which only the bottom slice is catered for by that thinnest description” (Ryle 1971b, p. 482). The good health care ethics consultant is never satisfied with a “thin description” of a case and, moreover she/he “knows how” to elicit and carefully analyse information about the underlying, overlapping, complex and sometimes contradictory motives and intentions that account for that which

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is observable. The good health care ethics consultant’s “thick description” of a case is not merely a long, richly detailed account of events and interactions, but an insightful interpretation of the aim(s) and meaning(s) of specific events and interactions. Lest there be any misunderstanding, the relevant feature of “thick description” is depth, not breadth. In this case written by Bliton (Bliton, 1999) there are a number of specific events, the meanings of which merit particular attention; two such instances are considered below. At the outset, Bliton reports that one of the unique features of the case is that the request is initiated by an executive secretary. Is she/he twitching or winking? Is the secretary simply redirecting an enquiry to the appropriate person, or is she/he communicating administrative anxiety about this particular case? Bliton assumes the latter and there may be good reason for this assumption, but a thicker description of the case would have been needed for the reader to draw this conclusion. Russell, the person who requested the meeting with a representative of the ethics committee, knew that large tertiary care centers usually had such committees, but perhaps he didn’t know how to access the consultation service and so contacted the administration. Alternatively, perhaps Russell didn’t trust the staff (e.g., the attending physician or the nurses) to relay his request to meet with someone from the ethics committee and thus he thought it important to “start at the top”. If so, why was trust lacking? Or, maybe Russell was simply afraid of offending the health care providers directly involved in his mother’s care. Or, perhaps . . . . Later in this case, in trying to figure out what is going on, and more specifically why the family is worried that their mother may have been intubated against her will, Bliton reviews Mrs Rose’s chart for a second time. This second review brings to light a discrepancy in two independent descriptions of what is believed to be one and the same event. Immediately after the attending physician’s note documenting that the ‘family does not wish her resuscitated if she arrests,’ . . . were two notes written within two minutes of each other. The first, from the respiratory therapist, reported that this patient . . . ‘extubated herself’ . . . [t]he nursing note immediately after . . . said that ‘in the process of turning the endotracheal tube dislodged and patient extubated’. (Bliton, 1999, pp. 15–16) Was this a case of self-extubation (and, if so, was the extubation intentional or inadvertent?) or dislodgment by turning? More importantly, did the family think that their mother had intentionally extubated herself because she didn’t want to die “hooked up to these machines”? (Bliton, 1999, p. 14). Did they further believe that the re-intubation was contrary to her wishes? Did the placement of restraints contribute to this belief? Did this inform their anger


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and dissatisfaction with the approach taken by the health care providers? Clearly this line of questioning is an important part of the interpretive activity of ethics consultation, presuming one is committed to providing a “thick description”’ of the apparent conflict between the family and the caregivers. It is not sufficient to note that there is disagreement; it is necessary to understand its source and to uncover the layers of meaning. Unfortunately, in the case described, these questions are not addressed to Mrs Rose’s family and so the much sought after “thick description” is not available. “What Is the Right Thing To Do, All Things Considered?” What should Bliton do in this case, all things considered? There is no authoritative answer to this question, though clearly there are better and worse things that one could choose to do. In discussing this type of situation, Howard Brody argues that, To the extent that an elderly patient near death is capable of autonomous choice, respect for persons dictates that many or most health care decisions will be made by the individual on his [sic] own behalf. But to the extent that autonomous individual choice is not feasible . . ., a small group of individuals bound to that person by some ties of sympathy and community may ultimately have to decide what sorts of medical care and support seem most reasonable. . . . And what seems reasonable will hinge not only on standard ethical principles, but also on an awareness of how that individual’s life story has unfolded, and on what makes that life story unique. (Brody, 1987, pp. 163–164) Bliton seems to agree with Brody. He advises the patient’s son Paul that it would border on cruelty to reduce the sedation and ask his mother to state her “true wishes” about the use of the ventilator. In his view, the family should not ask the patient to bear this particular burden so that they might be relieved of their own burden. Bliton tells Paul that, A typical way moral reasoning is constructed in medicine is that it’s her choice – if she wants the ventilator withdrawn. But, the way I see it, well, that doesn’t make sense here. If she has made it clear that she doesn’t want to be in this condition . . . we need to rely on your family’s sense of her life, what would make sense for her, in that history you share with her. . . . What I mean is that to let up on the sedation, and then ask an impossible question like ‘Do you want us to withdraw the ventilator?’ . . . that doesn’t make sense. (Bliton, 1999, pp. 18–19)

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The problem with this counsel, however, is that it doesn’t really seem to address the family’s presenting problem which might reasonably be described as one of ethical distress, given their inability to pursue the course of action they believe to be morally correct. From the way in which the story is told (despite some musings to the contrary by the ethics consultant), the family’s primary concern isn’t with finding out what their mother wants – rightly or wrongly they believe they already know this. Their concern is with motivating the responsible health care providers to act in accordance with their mother’s wishes. This is a case about children trying to “do right” by their mother, and not simply a case about respecting the wishes of an elderly person. With this perspective on the case, it is not clear how Bliton assists the family in achieving their goal. It appears that the case unfolds in a way that neither challenges nor accelerates what might be described as typical institutional inertia. This interpretation raises a fundamental question: “what constitutes a successful ethics consultation?” One reasonable evaluative criterion is helpfulness, but what makes an ethics consultation helpful and who determines this – the provider, the recipient, someone in quality assurance? For Bliton it appears that an ethics consultation is a covenant “to stand with” another (Bliton, 1999, p. 19). From this perspective he might argue that it doesn’t matter that his involvement in the case didn’t obviously change the course of events; what matters is the quality of his interaction with the people involved. But is this sufficient? Many argue that the health care ethics consultant should be an advocate for the primary decision-maker(s) which typically will be the patient and her/his family. This understanding of the role of the ethics consultant presumes a more active role than that undertaken by Bliton. Justice [J]ustice is important in order to secure the cooperation of, and mutual trust among, health care professionals, patients, patients’ families, and others. Justice is the virtue that directs the ethics consultant in her/his dealings with others. . . . It presumes impartiality, fairness and honesty. (Baylis, 1994, pp. 37–38) Is Bliton just in his dealings with others? This question highlights two controversial aspects of this case, both of which involve clear power imbalances that are not addressed by the health care ethics consultant. The first controversial issue concerns gender, the second concerns the established hierarchy in the hospital setting.


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Gender Bias A “fact” of this case that is not explored or questioned concerns the gender of the patient. In my view, gender is always a relevant consideration and, in this particular case, it is of particular relevance given that responses to patients’ expressed wishes regarding the limitation of life-sustaining treatment seem to vary with the gender of the patient. This issue cries out for attention particularly when we learn that, the attending had been [Mrs Rose’s] primary care physician for many years, and had discussed the issue of life-sustaining therapy with her. . . . [He] had understood her preference not to have such means as a ventilator used. (Bliton, 1999, p. 21) Why did the attending not respect Mrs Rose’s wishes – wishes that were clearly known to him for some time? Would his response have been different had his patient been male? There is no empirical research on this question as it pertains to physician-patient interactions. It is, however, both possible and reasonable to extrapolate from recent research by Steven Miles and Allison August which shows that American courts treat women’s wishes concerning the use of life-sustaining treatment differently from men’s. They conclude that: [There are] four major differences in how courts speak of previously competent women’s or men’s moral preferences. The first difference is the courts’ view that a man’s opinions are rational and a woman’s remarks are unreflective, emotional, or immature. Second, women’s moral agency in relation to medical decisions is often not recognized. Third, courts apply evidentiary standards differently to evidence about men’s and women’s preferences. Fourth, life-support dependent men are seen as subjected to medical assault; women are seen as vulnerable to medical neglect. (Miles and August, 1990, p. 87) They further conclude that: Gender profoundly affects judicial analysis of the right-to-die cases. Judicial reasoning about men stresses the role of personal autonomy in these controversial decisions. Judicial reasoning about women examines the role of caregivers. (Miles and August, 1990, p. 91) Did gender affect the attending physician’s assessment of the case? We don’t know, and in part we can’t know, because this avenue of inquiry was not pursued by the ethics consultant.

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Possible gender bias is not limited to the physician-patient relationship, however; it is also evident in the ethics consultant-family interaction which appears to only involve Mrs Rose’s three sons. Her eldest daughter, Janice, is for all intents and purposes marginalized from the consultation process. Yet, we know that Janice is intimately involved in her mother’s care and likely has a valuable perspective to contribute – she was present when her mother consented to be intubated and she is the one who later requested the DNR order. Why does the ethics consultant not seek her out and involve her in the discussions? Near the end of this case all four children do meet with the attending physician (after a two-hour wait), but there is no record of Bliton ever meeting with the whole family. At one meeting (presumably intended as a family conference) Bliton is told by Russell that “Janice won’t come back . . . she knows Mom’s not coming off the ventilator and she doesn’t want to wait here and watch her die” (Bliton, 1999, p. 12). This is not an unreasonable position for Janice to take, but does the ethics consultant know that this is her point of view? After all, her brother Paul expected her to arrive and participate in discussions with the ethics consultant. Did Janice really not want to be involved, or did her brother(s) think that it would be better for her to stay home and look after Dad? We are told that Dad is losing his memory and needs to be cared for now that Mom is in the hospital. Given the “well-entrenched gendered division of labor which places a disproportionate share of the burden of home care on women” (Downie and Sherwin, 1996, p. 121) is it not possible that Russell has delegated the domestic responsibilities to his sister Janice, having accepted for himself and his brothers the responsibility of negotiating their mother’s care in hospital? Do we know, and for that matter does Bliton know, that Janice would not have welcomed an opportunity to discuss her concerns with an ethics consultant? How can Bliton be confident that Russell is not misrepresenting Janet’s position? The point here is not to impute malice but to emphasize that since ethics consultation is essentially an interpretive activity, it is crucially important that the ethics consultant not rely on others’ interpretations (whenever possible). To do so, is to add unnecessary layers of complexity to the interpretive activity of ethics consultation. Hospital Hierarchy In my reading of this case, institutional practice seems to confer upon physicians a certain control of the ethics consultation service “since consultants confer with patients only at the attending physician’s request” (Bliton, 1999, p. 10). In my view, this is not an environment in which trust can thrive. For example, how can the nurses and other health care providers trust the health


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care ethics consultant – someone who seems to function as an adjunct or assistant to physicians? Considered from another perspective, if we focus on the fact that in this particular case the ethics consultation is initiated by someone other than the physician, how can the physician trust the health care ethics consultant – someone who, under the circumstances, he might now view as an intruder or an interloper instead of an ally? As for the family, how can they trust an “insider” who is to all appearances “part of the team” – someone who is able to take on “the institutional voice” and (perhaps unwittingly) defend the status quo? More generally, how can they have confidence in a system where there doesn’t seem to be equal access to the ethics consultation service? The privileged place of physicians in the hospital hierarchy is also evident in the recounting of the case. We are on a first name basis with most of the people involved in this case – the patient’s children Janice, John, Russell, and Paul, the nurse Molly, the resident Max. Our relationship with the patient is on somewhat more formal terms – she is known to us as Mrs Rose. The physicians, on the other hand, are cloaked anonymously in their professional titles – the attending physician, the consulting pulmonologist, and the covering pulmonologist. What does this difference explain? Is this a particularly careful attempt at protecting the privacy of physicians? If so, is their privacy more worthy of protection than that of patients, their families, and other health care providers? Or is this unwitting, undue deference? If so, how might this deference skew the consultation process? Courage [T]he health care ethics consultant needs courage. In the clinical setting, when faced with a serious wrong, the ethics consultant may ‘lack the strength of will not to take the easy way out.’ The personal and professional consequences of calling into question the moral acceptability of certain practices, decisions, institutional structures, or policies could be significant. Furthermore there will be tremendous pressure to conform so as to gain the approval of one’s colleagues in the health care setting. An effective health care ethics consultant, however, is not a compliant colleague. (Baylis, 1994, p. 38) In a recent article on ethics education for medical students, Feudtner et al., note that “refining students’ (or physicians’) rational understanding of the moral issues at stake in a particular dilemma often does not facilitate ethical action” (Feudtner et al., 1996, p. 755). Whereas some students will “summon the courage to adhere to their beliefs”, others will seek to avoid confrontation and will not “traverse the bridge linking beliefs to practice.” The same can be said of health care ethics consultants. While they are responsible for teaching and engaging in formal ethical analysis, it doesn’t follow that they will always have the courage to act on their convictions.

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Many health care ethics consultants who are not themselves health care providers describe themselves as “guests” of the institution(s) in which they work. Often they are very sensitive to the fact that their presence in the health care setting is by invitation, they are beholden to their clinical colleagues (both for their good will and their medical knowledge) and they are mindful not to offend them in case they are asked to leave. For some ethics consultants this trepidation and dependence has translated into an unwitting acceptance of well-established patterns of interaction – patterns that presume a certain hierarchy and power structure. In this particular case, where the ethics consultation service is not initiated by the physician, Bliton reports that there is a sense in which the physician’s authority has been usurped “with Russell’s request for ethics involvement, the balance of control had shifted” (Bliton, 1999, p. 11). The ethics consultant further notes that Russell’s action results in a tension between the attending physician, other health care providers, and the family. Reading between the lines it appears that the ethics consultant thinks this a most unfortunate situation that might have been avoided had certain unstated rules of etiquette been observed. So as not to compound the offence, the ethics consultant seeks to confer with the physician before approaching the family who has asked for the ethics consultation. Shortly after reviewing Mrs Rose’s chart, Bliton sees two men in Mrs Rose’s room. He senses that they want to talk with him, but he doesn’t allow this: “it was awkward not to stop, yet, as a matter of protocol, I needed to talk to the attending and get his acknowledgment prior to talking with his patient or family” (Bliton, 1999, p. 11). What does acknowledgment mean in this case? What is its moral force? Did Bliton think that he needed the physician to give him permission (tacit or otherwise) “to go ahead and do whatever [he] felt [he] needed to do?’’ (Bliton, 1999, p. 11). If not, why could the acknowledgment not have been sought after speaking with the family members? Although there has been much debate in the literature about who should be able to initiate an ethics consultation, it is now widely accepted that anyone directly involved in the “case” can access the consultation service, including the patient and the patient’s family. Why then does Bliton delay speaking directly with the family who has requested his services? Is Bliton’s failure to do so indicative of an absence of courage – or an act of wisdom? As regards the virtue of courage, if common institutional practice is for the physician to direct (if not control) the consultation process, then clearly there is some personal risk in challenging this well-entrenched practice. This being said, my own experience in the clinical setting and discussion with like-minded colleagues leads me to believe that good ethics consultants are willing to put themselves “on the line” for what they believe is true and right. To be sure, when the situation warrants, they are willing to compromise (i.e., find some middle ground that is acceptable to both parties), but they are not willing to


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be compromised (i.e., to be forced to betray deeply held values and beliefs) (Webster, 1995). They have a clear sense of personal and professional integrity. In response, Bliton could argue that in his wisdom, knowing the institution and the people involved in the case, caution was in order to avoid exacerbating a situation that had already grown quite tense. He writes, . . . as a matter of protocol, I needed to talk to the attending and get his acknowledgment prior to talking with his patient or family. Beyond the protocol, though, I thought that talking to them at this point would likely only add to the confusion, and thus recognizing them now might only make it more awkward to talk with them in the future. (italics added, Bliton, 1999, p. 11) Perhaps Bliton was right to act as he did. I would suggest nonetheless that Bliton’s working conditions are morally unacceptable. On my reading of this case, prevailing practice (if not institutional policy) allows physicians to act as the gatekeepers for the ethics consultation service and, in my view, this is objectionable. Compassion The health care ethics consultant should be compassionate and caring – able to appreciate the needs of, and show genuine concern for, those who are suffering. S/he should not distance her/himself from the emotional aspects of the presenting ethical problem, but should strive to understand the anguish of those who are suffering, and their need for comfort and help. (Baylis, 1994, p. 39) This character trait is one that portrays the ethics consultant as a healer – one who witnesses, explains and relieves suffering. Though some would find this characterization extremely controversial, Bliton presumably does not. Rather, it appears that Bliton views caring as a fundamental quality and thus is committed to fostering what Dale Matthews et al., (1993) describe as connexional experiences: occasional moments of particular closeness . . . often marked by a physiologic reaction, such as gooseflesh or a chill; by an immediacy of awareness of the patient’s situation (as if experiencing it from inside the patient’s world); by a sense of being part of a larger whole; and by a lingering feeling of joy, peacefulness, or awe (973). As we listen to the patient’s story and a rapport deepens, we may experience a transition from hearing a description of his [sic] experiences to entering his life world – the story changes from being abstract and distant to being immediate and felt, as if we were inside it. This is the essence of connexional experience (974).

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On my reading of this case Bliton’s discussion with Paul, when he interrupts his vigil, might have been a connexional experience. Paul is open and willing to share his feelings with Bliton. He talks about wanting to hold his mother’s hand, to let her know that he is with her, to draw her back into his world. He tells Bliton “I’m not sure she knows I’m here and I just want to hold her, you know . . . but when I do, she moves just enough to let me see how uncomfortable she is” (Bliton, 1999, p. 18). Bliton, unable to silence his own internal talk, (“that part of the consciousness that is already forming the next comment, question or criticism, even as the patient is still speaking, distracting our attention away from his experience and from our spontaneous responses” (Matthews et al., 1993, p. 974)) speaks of typical ways of reasoning about his mother’s situation. Eventually, however, the speech ends; Paul is relieved (we are not sure why), and the intimacy resurfaces, “we – both of us – were gripped by sorrow” (Bliton, 1999, p. 19). Paul then tells his story; Bliton listens. The conversation ends when Bliton says “I don’t have an answer or a theory from which to derive an answer, but I am trying to stand with you as you look ahead to discover what is going to be best for your mother, for you, and your family. That’s my focus.” Paul responds “that’s well said and I appreciate that” (Bliton, 1999, pp. 19–20). Humility The health care ethics consultant should be humble in acknowledging her/ his limits. Ideally genuine self-knowledge yields self-critical humility, i.e., an ‘awareness of one’s own limitations and need for others . . . that ultimately results in a sense of equality with all others.’ (Baylis, 1994, p. 39) Near the end of this consultation there are a couple of occasions on which Bliton acknowledges the limits of his abilities. He identifies himself as a lifelong learner eager to benefit from those he serves in the consultation process: You know, in my experience it is people like you and your family, who allow me to participate . . . I try to understand what it’s like to face these decisions, it enables me to learn, which gives me the hope that I can help other people in similar ways in completely different situations. (Bliton, 1999, p. 19) Your openness in allowing me to see that, by talking with me, helps me learn about that capacity, in you, myself, possibly him and others. Maybe I can help somebody else. (Bliton, 1999, p. 23) This self-critical humility that ultimately results in a sense of equality with others is also evident in Bliton’s willingness to not only see himself as a helper, but also to acknowledge that others might be playing that role vis-a-vis him.


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Bliton writes of his conversation with Paul (discussed above) that Paul appears relieved, perhaps because he “had happened onto something that was helpful” (Bliton, 1999, p. 19). Yet later, in writing his paper, Bliton wonders whether Paul was trying to help him. This reflection shows critical insight; as a reader, I was certainly left with the feeling that the ethics consultation met the needs of the ethics consultant as much as, if not more than, the needs of the family. Finally, it is worth commenting on Bliton’s willingness to submit his work to peer review, in a way that few others have done, by inviting colleagues to comment critically on one of his ethics consultations. Arguably, this effort at accountability is an example of humility and speaks to his commitment to critical reflection on the nature and practice of health care ethics consultation. A Final Remark On Fictionalized Cases The postscript to this case records an important proviso. Bliton informs the reader, as would be expected, that “. . . out of respect for the privacy and confidentiality of the persons involved [he has] altered all identifying information so that they cannot be recognized.” Bliton further acknowledges that as a direct consequence of his efforts to guard the privacy and confidentiality of those involved in the case, he “can hardly discursively account for the situation for its own sake, except in rudimentary ways that, ineluctably, do violence to the textures and nuances crucial to some sustained understanding . . . – which is exactly the sort of thing that the writing attempts to elicit” (Bliton, 1999, p. 24). In my view, this limitation is graver than the author may have anticipated given the objective of the exercise, namely to reflect critically on the process of health care ethics consultation. The problem for the commentator is whether any reflection on the case and the involvement of the ethics consultant can be meaningful. Whereas it may be perfectly reasonable to discuss fictionalized cases when the focus is on one or more specific ethical issues, it seems much less reasonable to do so when the focus is on interpersonal interactions, and information about the persons who are interacting is either missing or significantly altered. My point is that materially relevant information is likely to be identifying information, and if this information has been altered to protect privacy and confidentiality, it is unclear whether the comments and reflections on the “fictionalized” case can ultimately be of any relevance. For example, gender is both materially relevant information and identifying information. In this article I make much ado about the fact that this case involves a female patient and a male physician. Are these comments wrongheaded because the genders of the patient and physician are among the details that have been altered to guard privacy? What about religious affiliation? Again, I would submit that

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this is both materially relevant and identifying information. Is the patient and her (or his) family really Southern Baptist? Or, were they of some other religious persuasion, or perhaps atheists? The paradox, as Dena Davis rightly notes, is that in describing actual cases, the details that need to be falsified to protect patient, family and provider confidentiality are all too often “the very details that . . . [give] the cases their integrity and usefulness” (Davis, 1991, p. 12). Further, what about features of the “fictionalized” case that may not have been altered but may have been suppressed? For example, we know nothing about the race or socio-economic status of this patient, her (or his) family, her (or his) health care providers, etc. Arguably this is relevant (but admittedly identifying) information. Also, it is possible that missing information has not been intentionally suppressed to protect privacy and confidentiality, but rather was never elicited by the ethics consultant. In reflecting on the process of ethics consultation it is critically important to know whether details are missing because the ethics consultant chose not to disclose them in order to protect privacy and confidentiality or failed to elicit them in the first place. With “fictionalized” cases there is no way of knowing this. In the telling and retelling of some cases, the health care ethics consultant has no ethical choice but to both fictionalize and suppress important (and sometimes crucial) details and to thinly describe certain key events and interactions in order to protect patient privacy and confidentiality. This is not true of all cases, however, and in particular need not be true of cases in which there has been a positive encounter/engagement. In such cases, the ethics consultant could request permission to describe the case in all its richness and complexity. Those involved in the case could even be invited to contribute to the telling of the story either by amending the original story or by the telling of counter-stories. When I teach medical students, residents and staff about the importance of respecting confidentiality I am careful to stress that all too often in medicine there are breaches of confidentiality that are not only unwarranted but wholly unnecessary. In many instances where personal information is disclosed without permission, it would have been possible to elicit a consent to disclosure. The point here is that Bliton could have requested permission to tell the story in a more revealing way, and had he done so, he might not have had to fictionalize the case for fear of breaching confidentiality. So as not to mislead, however, it is important to note that the problems of accuracy and completeness are not solely due to efforts at fictionalizing the case to protect privacy and confidentiality. My assumption is that time elapsed between Bliton’s involvement in the actual consultation and his crafting of the manuscript, in which case the “official story” is likely a reconstruction based on salient memories as well as notes taken at the time. It is not clear what kind of biasing effect this has on the telling of the case. Second, we don’t know what portion of the case may have been embellished in an effort to cast


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certain individuals in a more sympathetic light. In this regard, there is a need for healthy skepticism as concerns the author’s interpretation of his own behaviours. Despite the best of intentions there can be no objective telling of the case. One cannot help but nuance certain events and interactions in a way that is favourable to oneself and perhaps also to others whom one does not wish to offend. Finally, there is also the obvious limitation of the written text, namely, the absence of verbal or physical clues. It is not clear that a dramatic reading or reenactment of this case might not have provided additional information which in turn might have changed one’s interpretation of events and interactions. To be sure, to varying degrees all case summaries are subject to these limitations. It is nonetheless particularly important to flag them here as they complicate what at first glance appears to be a straightforward exercise namely, to reflect critically on the practice of ethics consultation with reference to an actual ethics consultation. Given all of the above, whereas Bliton ends his case summary with a proviso, I end my commentary with a caveat – I take no responsibility for comments that prove to be misguided or irrelevant. Appendix 1 Knowledge Requirements 1.

Extensive knowledge not only of the current health care ethics literature, but also of “classic” articles and influential cases in health care ethics. 2. Extensive knowledge and critical understanding of at least one ethical theory/tradition/ cultural belief system that is rich enough to allow one to develop a style of thought, habit of rigor, and judgement. 3. Extensive knowledge and critical understanding of the concepts of “health,” “illness,” “clinical practice,” and “medical research” in the health care system in which one is working (e.g., Western medicine, a comprehensive government-funded health care system). 4. Extensive knowledge of one’s own biases/partiality. 5. Extensive knowledge of facilitation (e.g., mediation, negotiation, and arbitration) techniques, and knowledge or underlying theory. 6. Knowledge of the following: a. Medical terminology. b. Common health care problems. c. Emerging health care problems. d. The range of health care settings. e. The strengths and limitations of the scientific method and the medical model of health care. f. The health care system’s structures and decision making methods. g. Relevant institutional ethos and policies. h. Relevant professional guidelines and codes of ethics. 7. Knowledge of various ethical theories/traditions/cultural belief systems that are most commonly held by health practitioners, patients, families, administrators, and social

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9. 10. 11.

FRANÇOISE BAYLIS

agencies in the health care system in which one is working. Knowledge of the human dimension(s) of ethical problem-solving which includes an understanding of the social and cultural circumstances that affect the patients’ and care-givers’ emotional responses to a health problem. Knowledge of health law, including knowledge of relevant government regulations, policy statements, legislation, and legal cases. Knowledge of cultural differences relevant to beliefs about health care. Knowledge of available resources (e.g., community support systems, contact persons, and national organizations).

Requisite Abilities 1. 2.

3.

4.

5.

6. 7. 8.

The ability to identify ethical issues coupled with the ability to sensitize others to ethical issues. The ability to acquire relevant information (e.g., clinical information, psychosocial information) when gaps are revealed, coupled with the ability to know which questions to ask when attempting to fill in the gaps. The ability to bring systematic thinking to ethical problem-solving. a. The ability to analyze the meanings of concepts and principles. Such analysis should include a consideration of the meaning of words in casual everyday contexts, their technical meaning, and their idiosyncratic use. b. The ability to identify underlying assumptions and to question those that are believed to be flawed or misleading. c. The ability to reframe a presenting ethical problem when appropriate (i.e., not in an attempt to evade or to distract), and thereby to shift the ethical discussion so as to allow or consideration of alternative options that might otherwise not be considered. The ability to make and defend sound ethical judgements that reflect an understanding of the values of others, including: a. The ability to identify possible alternative courses of action, to outline the associated values and possible consequences, and to provide the best arguments for and against the various options; and b. The ability to provide a recommendation “for consideration,” without attempting to manipulate the decision making process. The ability to communicate effectively with (which includes actively listening to) health care workers, patients, patients’ families, administrators, and social agencies. a. The ability to elicit, appreciate, explore, and (when necessary) help clarify the evolving/changing viewpoints, beliefs, and values of others. b. The ability to represent to the evolving/changing viewpoints, beliefs, and values of one party to another. c. The ability to observe and perceive interests and relationships that influence discussion and behavior. The ability to facilitate (e.g., mediate, negotiate, and arbitrate), coupled with an ability to ascertain when one or more of these activities is appropriate. The ability to recognize and work within the limits of one’s knowledge balanced with the ability to accept challenges. The ability to recognize one’s own partiality and not to introduce personal beliefs (i.e., values or traditions one finds persuasive) in an inappropriate manner. Specifically, personal beliefs and value commitments should be identified in a timely fashion when there is an overriding commitment to a specific value system that is informing the


9.

10.

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discussion (e.g., religious or political beliefs). Personal beliefs and value commitments should not be introduced: (a) in a clandestine or subliminal way, or (b) under false colors – as facts when they are not, as consensually agreed on when they are not, or as legal requirements when they are not. The ability to participate in group decision making, even when this may generate a conclusion with which one disagrees, and a willingness to tolerate such group decisions. This ability must be coupled with a strong sense of personal and professional integrity so that one may distinguish outcomes that one will not, on moral grounds, endorse/ sanction (e.g., an outcome that violates an important moral principle, but is chosen to avoid confrontation) from outcomes that one disagrees with, but will endorse/sanction (e.g., outcome within communal and institutional norms). The ability to withstand the influence of public opinion and to question existing traditions, customs, and laws.

References Baylis, F. (1989). Persons with Moral Expertise and Moral Experts: Wherein Lies the Difference? In B. Hoffmaster, B. Freedman, G. Fraser (Eds.), Clinical Ethics: Theory and Practice. Clifton, New Jersey: Humana Press. Baylis, F. (1994). A Profile of the Health Care Ethics Consultant. In F. Baylis (Ed.), The Health Care Ethics Consultant. Totowa, New Jersey: Humana Press. Benjamin, M. and Curtis, J. (1981). Ethics in Nursing. New York: Oxford University Press. Bliton, M.J. (1999). Ethics Talks; Talking Ethics: An Example of Clinical Ethics Consultation. Human Studies 22(1): 7–24. Brody, H. (1987). Stories of Sickness. New Haven & London: Yale University Press. Downie, J. and Sherwin, S. (1996). A Feminist Exploration of Issues Around Assisted Death. Saint Louis University Public Law Review 15(2): 101–128. Davis, D.S. (1991). Rich Cases: The Ethics of Thick Descriptions. Hastings Center Report 21(4): 12–17. Feudtner, C., Christakis, D. and Schwartz P. (1996). Ethics and the Art of Confrontation: Lessons From the John Conley Essays. Journal of the American Medical Association 276(9): 755–756. Geertz, C. (1973). Thick Description: Toward and Interpretive Theory of Culture. In C. Geertz (Ed.), The Interpretation of Cultures: Selected Essays. New York: Basic Books Inc., Publishers. Hauerwas, S. (1985). Virtue. In K. Vaux (Ed.), Powers that Make Us Humans: The Foundations of Medical Ethics. Chicago: University Press. Matthews, D., Suchman, A.L. and Branch, W.T. (1993). Making “Connexions”: Enhancing the Therapeutic Potential of Patient-Clinician Relationships. Annals of Internal Medicine 118(12): 973–977. Miles, S.H. and August, A. (1990). Courts, Gender and “The Right to Die”. Law, Medicine & Health Care 18(1–2): 85–95. Ryle, G. (1971a). Knowing How and Knowing That. In G. Ryle (Ed.), Collected Papers Vol. II: Collected Essays 1929–1968. New York: Barnes & Noble Inc. Ryle, G. (1971b). The Thinking of Thoughts: What is ‘le Penseur’ Doing? In G. Ryle (Ed.), Collected Papers Vol. II: Collected Essays 1929–1968. New York: Barnes & Noble Inc. Wesbter, G. (1995). “Moral Residue”: The Problem of Moral Compromise. Paper presented at the Annual Meeting of the Canadian Bioethics Society, Vancouver, British Columbia, Canada.

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