Hostname: page-component-cd9895bd7-p9bg8 Total loading time: 0 Render date: 2024-12-26T07:46:23.953Z Has data issue: false hasContentIssue false
  • English
  • Français

Authority in Ethics Consultation

Published online by Cambridge University Press:  01 January 2021

George J. Agich
Get access Rights & Permissions [Opens in a new window]

Extract

Authority is an uneasy, political notion. Heard with modern ears, it calls forth images of oppression and power. In institutional settings, authority is everywhere present, and its use poses problems for the exercise both of individual autonomy and of responsibility. In medical ethics, the exercise of authority (along with power) has been located on the side of the physician or the health care institution, and it has usually been opposed by appeal to patient autonomy and rights. So, it is not surprising, though still ironic, that ethics consultation, which develops from this patient rights-dominated ethic, should itself bring forth questions of authority. Nonetheless, it does.

Insofar as authority has been discussed in ethics consultations, it has been understandably approached from the broad perspective of legitimation and power, which are common themes in social and political treatments of authority. These treatments have dominated twentieth-century discussions of authority, which primarily view authority as legitimate power.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 23 , Issue 3 , Fall 1995 , pp. 273 - 283
Copyright
Copyright © American Society of Law, Medicine and Ethics 1995

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

Or, as Max Weber put it in initiating this line of thought: “the legitimate use of physical force.” See Weber, Max, The Theory of Social and Economic Organization, trans. Parsons, Talcott (New York: Free Press, 1947): At 154.Google Scholar
LaPuma, John Toulmin, Stephen, “Ethics Consultants and Ethics Committees,” Archives of Internal Medicine, 149 (1989): 1109–21; Ross, Judith Wilson, “Case Consultation: The Committee or the Clinical Consultant?,” HEC Forum, 2 (1990): 289–98; Swenson, Michael D. Miller, Ronald B., “Ethics Case Review in Health Care Institutions: Committees, Consultants, or Teams?,” Archives of Internal Medicine, 152 (1992): 694–97; Gramelspacher, Gregory P., “Institutional Ethics Committees and Case Consultation: Is There a Role?,” Issues in Law and Medicine, 7 (1991): 73–82; and Cohen, Cynthia B., “Avoiding ‘Cloud-cuckooland’ in Ethics Committee Case Review: Matching Models to Issues and Concerns,” Law, Medicine & Health Care, 20 (1992): 294–99.CrossRefGoogle Scholar
Cranford, Ronald E., “The Neurologist as Ethics Consultant and as a Member of the Institutional Ethics Committee,” Neurological Clinics, 7 (1989): 697–713; LaPuma, John Schiedermayer, David L., “Must the Ethics Consultant See the Patient,” Journal of Clinical Ethics, 1 (1990): 56–59; Grunfeld, Gershon B., “Non-MD Ethics Consultants?,” Journal of Clinical Ethics, 1 (1990): 325–26; Zaner, Richard M., “Is ‘Ethicist’ Anything to Call a Philosopher,” Human Studies, 7 (1984): 71–90; Ackerman, Terrence F., “The Role of an Ethicist in Health Care,” in Anderson, Gary R. et al., eds., Health Care Ethics (Rockville: Aspen, 1987): 308–20; Morreim, Haavi, “The Philosopher in the Clinical Setting,” Pharos, 46 (1983): 2–6; Jonsen, Albert R., “Casuistry as Methodology in Clinical Ethics,” Theoretical Medicine, 13 (1992): 295–307; LaPuma, John Schiedermayer, David L., “The Clinical Ethicist at the Bedside,” Theoretical Medicine, 12 (1992): 285–92; Barnard, David, “Reflections of a Reluctant Clinical Ethicist: Ethics Consultation and the Collapse of Critical Distance,” Theoretical Medicine, 13 (1992): 15–22; Thomasma, David C., “Why Philosophers Should Offer Ethics Consultations,” Theoretical Medicine, 12 (1991): 129–40; and Marsh, Frank H., “Why Physicians Should Not Do Ethics Consultations,” Theoretical Medicine, 13 (1992): 285–92.CrossRefGoogle Scholar
LaPuma, John Rush Priest, E., “Medical Staff Privileges for Ethics Consultants: An Institutional Model,” Quality Review Bulletin, 18 (1992): 17–20; and Fletcher, John C. Hoffmann, Diane E., “Ethics Committees: Time to Experiment with Standards,” Annals of Internal Medicine, 120 (1994): 335–38.CrossRefGoogle Scholar
Siegler, Mark, “Ethics Committees: Decisions by Bureaucracy,” Hastings Center Report, 16, no. 3 (1986): 22–24; Fleetwood, Janet E. Arnold, Robert M. Barrin, R.J., “Getting Answers or Getting Questions? The Problematic Role of Institutional Ethics Committees,” Journal of Medical Ethics, 15 (1989): 137–42; Siegler, Mark Singer, Peter A., “Clinical Ethics Consultation: Godsend or ‘Godsquad?’,” American Journal of Medicine, 85 (1988): 759–60; Lo, Bernard, “Behind Closed Doors: Promises and Pitfalls of Ethics Committees,” N. Engl. J. Med., 317 (1987): 46–50; and Blake, David C., “The Hospital Ethics Committee Health Care's Moral Conscience or White Elephant?,” Hastings Center Report, 11, no. 1 (1992): 6–11.CrossRefGoogle Scholar
The 1992 American Hospital Association Annual Services Survey indicated that 51 percent of 5,916 respondent hospitals had established an HEC. See Fletcher, Hoffman, , supra note 4, at 335.Google Scholar
West, Mary Beth Gibson, Joan McIver, “Facilitating Medical Ethics Case Review: What Ethics Committees Can Learn from Mediation and Facilitation Techniques,” Cambridge Quarterly of Healthcare Ethics, 1 (1992): 63–74; and Dubler, Nancy Neveloff Marcus, Leonard J., Mediating Bioethics Disputes: A Practical Guide (New York: United Hospital Fund of New York, 1994).CrossRefGoogle Scholar
See Siegler, , supra note 5; and Siegler, Singer, , supra note 5.Google Scholar
Veatch, Robert M., “Advice and Consent,” Hastings Center Report, 19, no. 1 (1989): 20–22; Jennings, Bruce, “The Limits of Moral Objectivity,” Hastings Center Report, 19, no. 1 (1989): 19–20; and Lo, , supra note 5.CrossRefGoogle Scholar
Stidham, Gregory L. Christensen, Kate T. Burke, Gerald F., “The Role of the Patients/Family Members in the Hospital Ethics Committee's Review and Deliberations,” HEC Forum, 2 (1990): 3–17; Mozdzierz, Gerald J. William Reiquam, C. Smith, Linda C., “Shaping Access to Hospital Ethics Committees: Some Critical Questions,” HEC Forum, 1 (1989): 31–39; Cohen, Carol J. de' Oronzio, Joseph C., “The Question of Access,” HEC Forum, 1 (1989): 89–103; Nash, Roy B. Leinvach, Margaret L. Fought, Rhonda J., “The Hospital Ethics Committee: Who Knows it Exists and How to Access it?,” HEC Forum, 1 (1989): 9–30; Agich, George J. Youngner, Stewart J., “For Experts Only? Access to Hospital Ethics Committees,” Hastings Center Report, 21, no. 5 (1991): 17–25; and Gibson, Joan McIver Kushner, Thomasine Kimbrough, “Will the ‘Conscience of an Institution’ Become Society's Servant?,” Hastings Center Report, 16, no. 3 (1986): 9–11.CrossRefGoogle Scholar
Flathman, Richard E., The Practice of Political Authority: Authority and the Authoritative (Chicago: University of Chicago Press, 1980); and Friedman, Richard B., “On the Concept of Authority in Political Philosophy,” in Flathman, Richard E., ed., Concepts in Social and Political Philosophy (New York: Macmillan, 1973): 121–46.Google Scholar
See West, Gibson, , supra note 7.Google Scholar
Agich, George J., “The Concept of Responsibility in Medicine,” in Agich, George J., ed., Responsibility in Health Care (Dordrecht: D. Reidel, 1982): 53–73.CrossRefGoogle Scholar
Arendt, Hannah, “What was Authority?,” in Friedrich, Carl J., ed., Authority: Nomos I (Cambridge: Harvard University Press, 1958): At 82. See also Arendt, Hannah, “What is Authority?,” in Between Past and Future: Six Exercises in Political Thought (Cleveland: World Publishing, 1963): At 93.Google Scholar
I refer to the ethics consultant for convenience. My goal is to characterize an operative, but largely neglected, sense of authority in ethics consultation without regard to whether the consultations are provided by individual consultants, consultative teams, or HECs. Evident differences do exist between these three kinds of ethics consultations, and they will affect the application of my points. Although I allude to some of these differences in passing, my main concern is to outline a new way of understanding authority in the process of ethics consultation. The practical and ethical problems associated with this sense of authority will be different for individual consultants, consultative teams, and HECs, but systematically differentiating them is beyond the scope of this paper.Google Scholar
For the best exposition of this view, see Flathman, , supra note 11.Google Scholar
For a description of aspects of the witnessing function of the clinical ethicist, see Agich, George J., “Clinical Ethics: A Role Theoretic Look,” Social Science and Medicine, 30 (1990): 389–99.CrossRefGoogle Scholar
Hendel, Charles, “An Exploration of the Nature of Authority,” in Friedrich, Carl J., ed., Authority: Nomos I (Cambridge: Harvard University Press, 1958): At 7.Google Scholar
For a discussion of the importance of identification in actual autonomy, see Agich, George J., Autonomy in Long-Term Care (New York: Oxford University Press, 1993): At 99–107.Google Scholar
This belief is due primarily to the way that treatment of ethics consultation has taken as its paradigm the HEC understood in bureaucratic, institutional terms. Such a view stresses the official or formal nature of HECs as committees that wield power or influence within the institution.Google Scholar
Lincoln, Bruce, Authority: Construction and Corrosion (Chicago: University of Chicago, 1994): At 1–2.CrossRefGoogle Scholar
See supra note 3.Google Scholar
The apparent ease with which one can don an insignia of power in some medical centers, simply by wearing a white coat of a certain length and style, suggests that power is diffusely distributed in these settings. No wonder, then, that bioethicists carrying pagers or wearing white coats in the medical center has been the source of innumerable quips. Whether these practices are anything more than convenience or affectation is, however, less important than their function of wittingly or unwittingly appropriating the mantle of power.Google Scholar
DeGeorge, Richard T., The Nature and Limits of Authority (Lawrence: University of Kansas Press, 1985).Google Scholar
Id. at 37–40.Google Scholar
See supra note 3.Google Scholar
DeGeorge distinguishes epistemic authority from authority based on competence, personal authenticity, or excellence. Although they are closely related, they are dissimilar in important ways. Of these kinds of authority, competence authority is especially important for understanding ethics consultation.Google Scholar
How the ethics consultant is authorized is a complicated process that involves institutional policy or protocol on ethics consultation on the one side, and trust or acceptance of the ethics consultant by the individuals involved in the case, on the other. Who is able to access the ethics consultant is a serious second-generation problem for HECs and ethics consultants, as Agich and Youngner (supra note 10) have pointed out.Google Scholar
See DeGeorge, , supra note 24, at 37.CrossRefGoogle Scholar
The importance of discretion or judgment in the exercise of authority has been well recognized in philosophy. Plato perhaps went further than any other thinker in believing that such functions should be socially delegated to a specific individual, namely, the philosopher-king. Many have rejected his concept of the philosopher-king because his solution minimizes the central practical problem, namely, how to identify individuals who are worthy of being entrusted with so much discretion.Google Scholar
Friedrich, Carl J., “Authority, Reason, and Discretion,” in Friedrich, Carl J., ed., Authority: Nomos I (Cambridge: Harvard University Press, 1958): At 46–47.Google Scholar
This discussion of the etymology of authority is drawn from Friedrich, , id. at 30.Google Scholar
Later, the word auctoritas became a more general notion and acquired a usage similar to the modern word author, meaning a maker or originator. This later meaning seems to be at the basis of modern understandings of power as something that originates with one person and is imposed on another, in contrast to the proper idea [of auctor] as one who adds. Strictly speaking, this must be an adding to what existed before, as a witness adds his testimony about some event in question. From this original usage, the meaning gradually acquired the sense of creation, the creation of something new that can then be subject to further elaboration. An author is thus someone who comes between us and the facts or ideas, and adds to them a ground of belief about them. Authority originally involved adding wisdom to will, adding knowledge of shared values and traditions to whatever the people wanted to do. Even when the stress is placed on the fact that the author adds something, that something is added to what already existed, as a witness does when giving testimony. The author does not create something ex nihilo, but affirms something de novo.Google Scholar
See LaPuma, Schiedermayer, , supra note 3; and Grunfeld, , supra note 3.Google Scholar
Interestingly, when that question is raised about a specific in authority figure, the authority figure is usually well on his way to losing authority. A number of answers might be given to this question, none of which, however, gets at the distinctive phenomenon that reasoning accomplishes by augmenting and confirming the will. One might, for example, appeal to hierarchy and status, interest and advantage, personal attachments and loyalties, or some specific law. None of these considerations in itself really provides a satisfactory explanation of why an authority figure's advice should be followed in a specific context. Augmentation by reasons, however, does provide a basis that can justifiably motivate action.Google Scholar
Beyond that important practical question is one about the implications of this kind of power for the consultant's epistemic authority in clinical ethics. The issue is not whether the ethics consultant's epistemic and competence authority can be transformed into in authority or executive power by means of personal authorization, but whether a different kind of authority is infused that practically and politically complicates the situation. It is inevitable that the dynamics of certain cases will propel the ethics consultant into these uncharted waters. It is an open question to what extent this does occur in the course of ethics consultation.Google Scholar
In such instances, the ethics consultant needs to remember that the individual physician practices within the institution as a matter of privilege, not right. Appealing to the medical staff hierarchy without emotion and guided by clear-headed reasoning is a sure way to bring a recalcitrant physician in line with obvious patient rights. Also, administrative avenues of appeal are usually backed up by legal remedies. A reminder of the law can have a sobering effect on key members of both the medical staff and the administration. Going to such lengths, however, does not make the ethics consultant's authority executive or in authority power. Quite to the contrary, it simply confirms the epistemic authority of clinical ethics, which necessarily includes a detailed knowledge of the relevant common legal requirements, rules, and remedies. Willingness to deploy this knowledge in the service of a patient, however, can require courage and fortitude by the ethics consultant, a fact that underscores the importance of the ethics consultant's character or virtue. This point is important both practically and theoretically, because some contractual and work arrangements for ethics consultants might promote or enhance the expression of this character or virtue, while other arrangements might significantly thwart its expression and stymie its development.Google Scholar
See Friedrich, , supra note 32, at 40–42.Google Scholar