Lawyers and bioethics: balancing being lawyers and conferring with medical ethics advisors: there may be some reasons why lawyers shouldn't participate in medical ethics discussions, but with some common sense, they could be valuable.

• Author: De Ville, Kenneth A.

WITH INCREASING frequency health law lawyers are asked to participate in discussions that intertwine legal, clinical and medical-ethical concerns. These "bioethical" issues are related to, but distinct from, purely legal questions.

For example, in-house hospital counsel routinely wrestle with complicated and painful issues involving end-stage life decision making, do not resuscitate orders, advance directives, maternal-fetal issues, so-called futile treatments, and conflicts between family members and health professionals. Health law lawyers also are involved integrally in developing and reviewing institutional patient care policies that involve ethical problems and dilemmas. Health law lawyers frequently play a role in ensuring that health care institutions conform to Joint Commission for the Accreditation of Healthcare Organizations standards, as well as to and federal fraud and abuse, anti-self referral, and anti-kickback regulations. (1)

All these duties necessarily involve issues of law bioethics. Bioethical issues sometimes arise when attorneys represent individual patients in a health care setting. Here, too, health law lawyers may be asked to perform functions beyond the purely technical legal role. (2)

The overlap between medical law and medical ethics is becoming so commonplace that lawyers who practice in a medical setting must come to terms with the fundamental question: "What does it mean to practice bioethics and the law?" This question is not merely a topic for professional or academic enrichment. It is a complex question involving rapidly changing legal and medical environments and doctrines, shifting inter-professional relations, and multiple and interlocking personal and professional commitments and duties. The relationship between bioethics and law is so important and complicated that lawyers' professional ethics obligations require that those who are likely to deal with these issues have a clear view of the nature of their various roles and how those roles interact before they face these issues in practice. Just as important, health law lawyers must be able to help the non-lawyers with whom they work understand the multifaceted nature of bioethics and the law.

CONCEPTS AND RELATIONSHIPS

Medical ethics or bioethics is the examination of how to make morally right choices in medical practice and health care delivery. It is a branch of applied ethics--what is right and what to do about it. Bioethics includes the examination of issues in health care economics, especially the distribution of scarce medical and financial resources. For example, medical ethicists have examined the fairness of attempts to control costs, such as managed care, and have analyzed the increased emphasis on market principles to distribute medical resources. Bioethics also attempts to resolve conflicts between society and individuals. For example, parents sometimes refuse effective treatments for their children on religious or other grounds. These decisions raise questions regarding the right of the medical community and the state to intervene in medical decision making. (3)

In many respects, the professional duties of lawyers who practice medical law are relatively clear. Of course, they are required to provide competent legal advice and are bound to protect the interests of their clients. In this regard, they are no different from other working legal professionals. Whatever else they are asked to do, they are bound to perform to these standards. Much of the legal work related to bioethics is within traditional provinces of contract, tort, insurance, and constitutional and regulatory law. (4) In this respect, too, their responsibilities are no different from those imposed on other lawyers, although it is becoming increasingly difficult to keep abreast of the health law generated by courts, legislatures and new health care arrangements. This current dynamic environment is what makes health law one of the most intellectually exciting, yet daunting, areas of practice.

LAWYERS' INVOLVEMENT

Health law lawyers are called on to participate in bioethical or medical ethical discussions for a variety of reasons. First, many of them serve on the hospital ethics committees. When the committee is asked to consider a particular ethical question or policy, they are front line. Sometimes they are called on to participate in case consultations, which are meetings with medical staff and sometimes family to inquire what is the most appropriate course of action in a problematic case. There are both formal case consultations, emanating usually from the institutional ethics committee, and informal consultations requested by clinicians involved in a particular case. Finally, in-house counsel may become involved in bioethical discussions because issues of law are usually, if not always, interwoven with the ethical issues that arise in clinical practice.

But this interwoven nature of law and ethics is not limited to instances in which a lawyer works for a health care institution. Although such direct representation before the fact seldom occurs, attorneys sometimes represent physicians or other health care providers in the health care setting. Patients, as well as physicians, although still infrequently, are increasingly turning to lawyers to deal with the disruptions and confusions brought on by the dramatic appearance of managed care. Legal concerns relating to managed care usually are strict issues of contractual law and do not involve bioethics. But when managed care legal issues implicate the nature of the doctor-patient relationship, both legal and ethical issues may be involved. Thus, in these settings, the attorney may have both a moral and a professional responsibility.

NOW THE BACKLASH

The widespread participation of lawyers in bioethical discussions has generated a palatable backlash among medical ethics academics and the medical profession. From almost the beginning of formalized ethics discussions, there have been attacks on lawyers' participation. As Charity Scott has observed, on some health care ethics...