Institutional Ethics Committees and the Shield of Immunity

Institutional ethics committees in health care facilities have been hailed as a good way to resolve complex ethical issues in patient care while avoiding the costly, often adversarial, legal system. They have been endorsed by the American Hospital Association [1], the Department of Health and Human Services [2], the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research [3], and the American Medical Association [4]. The Joint Commission on Accreditation of Healthcare Organizations requires hospitals to have a mechanism for considering ethical issues in patient care [5], and this requirement is commonly fulfilled by ethics committees. Since 1986, more than 60% of hospitals with at least 200 beds have had institutional ethics committees [6], defined in 1984 by Cranford and Doudera [7] as a multidisciplinary group of health care professionals within a health care institution that has been specifically established to address the ethical dilemmas that occur within the institution. Activities vary, but a 1989 study [8] of ethics committees in Maryland, Virginia, and Washington, D.C., in which a questionnaire was sent to 199 chief executive officers and was completed by 194 (98%), showed that 50% of the hospitals in that region have committees. Of the 98 ethics committees, 67% develop institutional policies, 61% discuss continuing education needs, and 69% review ethical issues in patient care. Although the first two functions of ethics committees are not controversial, case consultation raises many questions, especially about who bears final authority for patient care decisions and about the legal weight of advice from committees. Legislation about ethics committees has addressed two particularly controversial issues: whether committees should be mandated for all hospitals or be discretionary and the extent of legal protection for health care professionals who implement a committee's advice. Maryland [9] legally mandated ethics committees in 1987 and New Jersey [10], in 1990. Legislation in Hawaii [11] in 1989 left the establishment of ethics committees discretionary, whereas legislation proposed in New York State would make it mandatory for all hospitals to have a committee available for case consultations. Maryland's statute does not offer legal protection to health care professionals who implement a committee's advice. In contrast, Hawaiian legislation grants full decision-making authority in patient care to ethics committees and provides for broad legal protection for physicians who participate with committees and implement their recommendations. The New York State Task Force on Life and the Law drafted a proposal in 1992 [12] giving advice from ethics committees legal authority similar to that offered in Hawaii. The New York legislative proposal [12] offers broad protection for those who follow a committee's advice stating, No health care provider or employee thereof shall be subjected to criminal or civil liability, or be deemed to have engaged in unprofessional conduct, for honoring in good faith a health care decision made pursuant to this article. In New Jersey, the Commission on Legal and Ethical Problems in the Delivery of Health Care concluded, after much debate, that it would be unwise to include protection for those who follow a committee's advice. However, before drafting its legislative proposal, the Commission lost funding and became inactive. We examine the appropriateness of legislative statutes conferring civil and criminal immunity on physicians who implement a recommendation from an ethics committee. Five questions frame this issue. First, what are the competing models for ethics consultation? Second, what is immunity, and how does it affect recommendations from ethics committees? Third, what legal authority have ethics committees been accorded in the past? Fourth, are ethics committees reasonable alternatives to courts? Finally, what are the appropriate limits of authority for ethics committees? 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 an