Hospital Ethics Committees in Kansas
| Jurisdiction | Kansas,United States |
| Citation | Vol. 63 No. 12 Pg. 38 |
| Pages | 38 |
| Publication year | 1994 |
63 J. Kan. Bar Assn. December, 38 (1994). HOSPITAL ETHICS COMMITTEES IN KANSAS
December, 1994
Copyright (c) 1994 by the Kansas Bar Association; Marta Fisher Linenberger
In an age of dwindling medical resources, enhanced medical technology and treatment, health care rationing, and heightened consumer awareness of the potential for medical treatment, who decides what treatment is appropriate, or even available to a patient? Who evaluates the really tough medical decisions when the interest of the patient, the significant people in their lives, the treatment personnel and society, clash? While ultimately, medical decisions are made by patients in consultation with their treating physician, often outside factors impact such decisions. The patient may not be competent to decide treatment issues, or the desired treatment may conflict with the law or rights of others. Medical treatment is no longer a private matter between physician and patient.
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Examples of conflicts in health care are the subject of newspaper articles, magazine features, and television "news" shows. Not long ago the media extensively covered the birth of siamese twins at Chicago's Loyola University Medical Center. The babies shared a single heart and there were questions raised whether the babies should be separated in light of the potential lack of success of such an operation and in light of the costs involved. For the donor twin, death was certain. For the survivor, there was a one percent chance of a successful recovery. The initial utilization of life support for the twins was also questioned. [FN1] In 1992, a baby girl was born anencephalic -- without a brain cortex but with a brain stem sufficient to drive the functions of heartbeat and breathing. Her parents wanted to donate her organs but technically the child did not qualify as a donor because she was not brain dead. [FN2] In 1990, the parents of a woman in a persistent vegetative state wanted to discontinue nutrition and hydration over the objections of the facility where she resided. [FN3]
Ethics committees sort out thorny problems raised by advanced technology, dwindling resources and human conflicts. They help health care providers, patients, their families or surrogates achieve sound decision-making in difficult health care situations. In 1983 there were 37 institutional ethics committees assisting in such decision-making either by direct participation or by drafting policies. Today there are more than 3,500 such committees. [FN4] Nearly every hospital in the state of Kansas has an institutional ethics committee or access to an ethics committee.
Ethics committees vary in their power, their scope, their expertise, their collective wisdom and their competence. At their best, the committees provide an interdisciplinary forum to present information and views about patient care issues and air different perspectives. They may create an open non-legal deliberative forum where the committee members can and must argue their positions after thinking through the facts of the case, by articulating ethical principles and by defending their positions. [FN5] Ethics committee assistance to physicians, hospitals, patients and families is undeniable. The People's Medical Society, a nonprofit consumer health organization advocates that patients consult the hospital ethics committee regarding their end of life decisions when their physician will not comply with their wishes. [FN6] Ethics committees have not, however, escaped criticism:
. . . [The ethics committee] is only as good as its members. With little standardization and no regulation, ethics committees may -- and often do -- contain people with scant real knowledge about the issues. They may be composed of whoever most wants to attend, people sometimes unencumbered by knowledge of the relevant medical, legal, and philosophical issues and facts. At worst, such forums can amount to little more than a bunch of well intentioned folks getting together and trading hunches about what's 'right.' They may engage in a sort of intuitive, untrained, seat-of-the-pants thinking, with little attempt at systematic analysis of the issues. They may be dominated by strong personalities who seek to impose their will on the group. Worse, in some places they are stacked with institutional players -- lawyers, administrators -- whose agenda is to shape the committee's decisions to safeguard the institution, rather than to find the most ethical solution to safeguard patients' and families' interests. [FN7] As potential patients, as advocates for patients or health care providers, or as community representatives, the potential that a Kansas attorney will interact with a hospital ethics committee at some point in their career is quite high. An understanding of ethics committees, their history, function and potential liability is therefore essential to making any such interaction productive.
HISTORY OF ETHICS COMMITTEES
The genesis of modern ethics committees is found in the Hippocratic Oath which creed directs a physician to seek consultation. This advice was reiterated in 1803 by Thomas Percival who urged physicians to consult with others. Codes of ethics promulgated by the American Medical Association in 1847 and 1980 also urge consultation. [FN8] Ultimately, it was the advent of medical technology that actually pushed the formation of ethics committees.
During the 1960's, ethics committees began to develop in large medical institutions. Often committees were convened on an ad hoc basis to deal with specific issues. For example, in Seattle, a committee allocated the utilization of scarce and expensive kidney dialysis machines. [FN9] The development of ethics committees got a boost from the federal government when it mandated institutional review boards to review human research experimentation. [FN10] Three other significant events forced hospitals to consider the formation of institutional ethics committees -- the case of Karen Ann Quinlan, a Presidential Commission Report and the Baby Doe Regulations. [FN11]
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In 1976, the judicial system aided the development of ethics committees. In New Jersey, a father petitioned the court for guardianship of his adult daughter so that he could direct that the respirator keeping her alive be discontinued. The New Jersey Supreme Court in In Re Quinlan, [FN12] outlined a role for hospital ethics committees. The committee envisioned by the Quinlan court would act as a "prognosis committee" confirming that a patient's prognosis was hopeless and that life support could be withdrawn. Based upon a law review article authored by a physician which recommended shared decision-making in difficult medical cases, the court in its decision apparently believed that ethics committees were in place and functioning and did not appreciate its role as being the impetus for creation of such committees. [FN13] The court discussed the advantages of consultation by an ethics committee as
. . . a diffusion of professional responsibility for decision, comparable in a way to the value of a multijudge courts in finally resolving on appeal difficult questions of law. Moreover, such a system would be protective to the hospital as well as the doctor in screening out, so to speak, a case which might be contaminated by less than worthy motivations of family or physician. In the real world and in relationship to the momentous decision contemplated, the value of additional views and diverse knowledge is apparent. [FN14] The court went on to state that it did not believe judicial oversight of the committee or its decision was appropriate. [FN15]
The second major developmental step for formation of ethics committees was a report that focused upon the withdrawal of life sustaining treatment. In 1983, a special presidential commission on medical-ethical issues recommended that medical facilities create ethics committees which could assist with decision-making for incompetent patients. [FN16] The commission found that only one percent of hospitals had such committees. [FN17] The commission, like the Quinlan court, envisioned that the judicial system should be utilized for health care decision-making only as a last resort. [FN18]
Perhaps the biggest impetus for hospitals to establish ethics committees came from the federal government's promulgation of the "Baby Doe" regulations. The "Baby Doe" regulations were aimed at protecting handicapped newborns from discriminatory treatment. The regulations stated criteria for the determination of appropriate treatment and strongly encouraged hospitals to establish committees to review decisions not to treat handicapped infants. [FN19] These regulations were subsequently invalidated and replaced by legislation amending the Child Abuse Preventional and Treatment Act. [FN20] The new law required the Secretary of Health and Human Services to publish model guidelines encouraging the establishment of review committees. Such committees would be charged with educating "hospital personnel and families of disabled infants with life-threatening conditions, recommending institutional policies and guidelines concerning the withholding of medically indicated treatment from such infants. . . and offering counsel and review in cases involving disabled infants with life-threatening conditions." [FN21] In Kansas, the regulations promulgated in response to the federal "Baby Doe" regulations...
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