1. Ethics Committees Kim C. Stanger Hawley Troxell LLP

2. Overview Ethics committee operation Ethics committee operation –Requirements –Authority –Functions –Structure Legal issues Legal issues –Peer review privilege –HIPAA –Consent –End of life decisions –Conscience rules

3. Disclaimer I am not a clinician or ethicist I am not a clinician or ethicist I am an attorney I am an attorney –Have served on or consulted with ethics committees –Deal with legal aspects on regular basis Issues may vary depending on organization Issues may vary depending on organization –Size –Resources –Ethical directives of organization This is for education only, and does not constitute legal advice This is for education only, and does not constitute legal advice Consult with legal counsel when considering these issues Consult with legal counsel when considering these issues

4. Ethics Committee An ethics committee is a “consultative committee in a hospital or other institution whose role is to analyze ethical dilemmas and advise and educate health providers, patients and families regarding difficult ethical decisions.” (Office of Tech. Assessment, U.S. Congress, Life- Sustaining Technologies and the Elderly 444 (1987) An ethics committee is a “consultative committee in a hospital or other institution whose role is to analyze ethical dilemmas and advise and educate health providers, patients and families regarding difficult ethical decisions.” (Office of Tech. Assessment, U.S. Congress, Life- Sustaining Technologies and the Elderly 444 (1987)

5. Source of Ethics Statutes and regulations Statutes and regulations –Idaho laws and regulations –Conditions of Participation (COPs) Professional organizations or codes Professional organizations or codes –AMA Code of Ethics Organizational codes or standards Organizational codes or standards –Hospital code of conduct or directives –Accreditation standards Society’s morals Society’s morals Provider’s, patient’s, or surrogate’s own morals, beliefs, or professional standards Provider’s, patient’s, or surrogate’s own morals, beliefs, or professional standards

6. Composition Multi-disciplinary Multi-disciplinary –Physicians –Nurses –Social workers –Clergy or chaplains –Community representatives –Administrators –Ethicists –Legal consultants –Specialists –Others?

7. Requirements Not required to have ethics committee Not required to have ethics committee But may help satisfy accreditation requirements But may help satisfy accreditation requirements –Joint Commission  “The hospital has a process that allows staff, patients, and families to address ethical issues or issues prone to conflict.”  “The hospital uses its process to address ethical issues or issues prone to conflict.” (Elements of Performance LD.04.02.03) –COPs  Patient rights  Medical staff assessment  Quality of care  Etc.

8. Function Educate Educate –Health care team –Patients and families –Hospital administration Develop and review policies Develop and review policies –Clinical ethics –Organizational ethics Consult and review specific cases Consult and review specific cases

9. Function: Education Ethics rounds Ethics rounds Ethics conferences Ethics conferences CME CME Advanced directives outreach Advanced directives outreach Community benefit activities Community benefit activities Ethics library Ethics library Ethics newsletter Ethics newsletter

10. Function: Policies and Guidelines Advanced directives Advanced directives DNR and POST process DNR and POST process Patient refusal of services Patient refusal of services Baby Doe guidelines Baby Doe guidelines Withholding or withdrawing life sustaining treatment Withholding or withdrawing life sustaining treatment Provider conscience situations Provider conscience situations Ethics consult procedures Ethics consult procedures Confidentiality Confidentiality Medical futility Medical futility Admission/discharge considerations Admission/discharge considerations Family communications Family communications Nutrition and hydration Nutrition and hydration Organ donation Organ donation Research Research New or discontinuance of services New or discontinuance of services Others Others

11. Function: Consultations Help identify, analyze, and resolve ethical problems in clinical care, especially in those cases involving: Help identify, analyze, and resolve ethical problems in clinical care, especially in those cases involving: –Significant ethical ambiguity –Disagreements re care  Among health care team  Between health care team and patient or family  Withholding or withdrawing life-sustaining treatment

12. Common Ethical Scenarios End of life decisions End of life decisions Withholding or withdrawing care Withholding or withdrawing care Reproductive rights Reproductive rights Consent or refusal of consent Consent or refusal of consent Capacity to consent Capacity to consent Surrogate decision-makers Surrogate decision-makers Futile or medically inappropriate treatment Futile or medically inappropriate treatment Provider conscience rights to refuse treatment Provider conscience rights to refuse treatment Confidentiality Confidentiality Disclosure of medical errors Disclosure of medical errors Organ transplants Organ transplants Allocation of health care resources Allocation of health care resources Use of new or unproven technology Use of new or unproven technology HIV testing of health care providers HIV testing of health care providers Restraints Restraints Research Research

13. Function: Consultations Gather facts Gather facts Clarify ethical issues Clarify ethical issues Help identify range of ethical options Help identify range of ethical options Facilitate communication with involved parties Facilitate communication with involved parties –Health care team –Patients –Family or other surrogates

14. Ethics Committee

15. Benefits Multidisciplinary analysis of situation Multidisciplinary analysis of situation Broad experience and perspective Broad experience and perspective Objective review Objective review Compassionate communication with patients and family Compassionate communication with patients and family Consensus decision- making Consensus decision- making Better decisions Better decisions Support for health care providers Support for health care providers Patient and surrogate peace and satisfaction with decision Patient and surrogate peace and satisfaction with decision Governmental deference Governmental deference

16. Benefits Study of 550 cases involving some dispute over aggressiveness, palliative, or futile care. Study of 550 cases involving some dispute over aggressiveness, palliative, or futile care. –Half of attending physicians offered ethics consults; half were not. –No significant change in mortality. –Intervention group had shorter stays in hospitals, ICU, and on ventilator. –87% of patients and providers said consults were helpful. Conclusion: “Ethics consults were useful in resolving conflicts that may have inappropriately prolonged nonbeneficial or unwanted treatments in the ICU.” Conclusion: “Ethics consults were useful in resolving conflicts that may have inappropriately prolonged nonbeneficial or unwanted treatments in the ICU.” (published in Journal of Am. Med. Ass’n, Sept. 2003)

17. Sample for Consultation Function Consults received and evaluated by “triage group” composed of 3 interdisciplinary committee members who are on call. Consults received and evaluated by “triage group” composed of 3 interdisciplinary committee members who are on call. Triage group responds and collects information regarding the facts. Triage group responds and collects information regarding the facts. –Current policy sufficient to resolve? –Call full committee? Triage group may call full committee meeting Triage group may call full committee meeting Closed committee meeting to: Closed committee meeting to: –Review facts –Identify acceptable options –Communicate with providers and, if appropriate, patient or surrogates Documents actions Documents actions Report to risk management as appropriate Report to risk management as appropriate

18. Authority Ethics committee has no legal authority Ethics committee has no legal authority –Compare other states But patients, surrogates, and governmental agencies may grant deference to decisions supported by ethics committee But patients, surrogates, and governmental agencies may grant deference to decisions supported by ethics committee –Standard of care –Appropriateness of care –Competency determinations –Informed consent –Exercise of conscience

19. Organization Medical staff committee Medical staff committee –Independent of hospital Hospital committee Hospital committee –Allows broader perspective Organizational committee Organizational committee

20. Problems with Ethics Committees Lack of defined purpose and operation Lack of defined purpose and operation –Overlap with peer review and risk management Misunderstanding of committee functions Misunderstanding of committee functions –Distrust –Judgment v. resource –Inconsistency among institutions Perceived tendency to act on behalf of hospital rather than patient Perceived tendency to act on behalf of hospital rather than patient –Legal issues or risk management may take over Structure of committee inefficient Structure of committee inefficient –Prompt response important –Inconsistent panels and inconsistent results

21. Options for Rural Hospitals Ethics consultant Ethics consultant Train key personnel Train key personnel Share role with peer review committee Share role with peer review committee –Consider composition of committee State-wide ethics network State-wide ethics network Multi-facility ethics committee Multi-facility ethics committee Teleconferencing Teleconferencing Other? Other?

22. Summary: Purpose of Ethics Committee To ensure that good judgment is applied to patient care. To ensure that good judgment is applied to patient care. –Identify ethical issues –Provide objective evaluation –Share multidisciplinary views –Facilitate effective communication –Help with risk management

23. Summary: Purpose of Ethics Committee “Ethics committees can provide a multidisciplinary forum for discussing problematic issues; help frustrated health professionals uncover and analyze touchy questions about patient care; and suggest options to patients, family members, and health care professionals.” (J. Fleetwood & S. Unger, Institutional Ethics Committees and the Shield of Immunity, 120 Anals of Int. Med. 320 (1994)) “Ethics committees can provide a multidisciplinary forum for discussing problematic issues; help frustrated health professionals uncover and analyze touchy questions about patient care; and suggest options to patients, family members, and health care professionals.” (J. Fleetwood & S. Unger, Institutional Ethics Committees and the Shield of Immunity, 120 Anals of Int. Med. 320 (1994))

24. Idaho Laws re Ethics Decisions and Operations

25. Peer Review Privilege Ethics committee discussions should be protected under peer review privilege. Ethics committee discussions should be protected under peer review privilege. –Privilege applies to committees designated by hospital staff bylaws, action of hospital staff, or governing board to study patient cases, medical questions, or problems using info from hospital patient cases for purposes of improving standards of medical practice. (IC 39-1392 to 39-1392a) Designate ethics committee as a peer review committee. Designate ethics committee as a peer review committee. Designate minutes as privileged. Designate minutes as privileged. Beware: peer review privilege is not absolute. Beware: peer review privilege is not absolute.

26. HIPAA Privacy Generally do not need patient’s authorization to use or disclose protected health info as part of ethics committee process if purpose is for: Generally do not need patient’s authorization to use or disclose protected health info as part of ethics committee process if purpose is for: –Health care operations –Treatment (45 CFR 164.506) Beware disclosures to family membersBeware disclosures to family members Business associate agreements? Business associate agreements? –Not for members of workforce –Not for medical staff members –Perhaps for outside consultants (45 CFR 164.504(e))

27. Ethics Law Ethics ≠ Law

28. Patient Self-Determination Idaho “recognizes the established common law and the fundamental right of [competent] persons to control the decisions relating to the rendering of their medical care, including the decision to have life-sustaining procedures withheld or withdrawn….” Idaho “recognizes the established common law and the fundamental right of [competent] persons to control the decisions relating to the rendering of their medical care, including the decision to have life-sustaining procedures withheld or withdrawn….” “In recognition of the dignity which patients have a right to expect, the legislature hereby declares that the laws of this state shall recognize the right of a competent person to have his or her wishes for medical treatment carried out….” “In recognition of the dignity which patients have a right to expect, the legislature hereby declares that the laws of this state shall recognize the right of a competent person to have his or her wishes for medical treatment carried out….” “Any authentic expression of a [competent] person’s wishes with respect to health care should be honored.” “Any authentic expression of a [competent] person’s wishes with respect to health care should be honored.” (IC 39-4509)

29. Consent Any person of ordinary intelligence and awareness sufficient for him or her generally to comprehend the need for, the nature of and the significant risks ordinarily inherent in, any contemplated hospital, medical, dental or surgical care, treatment or procedure is competent to consent thereto on his or her own behalf. Any person of ordinary intelligence and awareness sufficient for him or her generally to comprehend the need for, the nature of and the significant risks ordinarily inherent in, any contemplated hospital, medical, dental or surgical care, treatment or procedure is competent to consent thereto on his or her own behalf. Any health care provider may provide such health care in reliance upon such a consent if the consenting person appears to the health care provider to possess such requisite intelligence and awareness at the time of giving the consent. Any health care provider may provide such health care in reliance upon such a consent if the consenting person appears to the health care provider to possess such requisite intelligence and awareness at the time of giving the consent. (IC 39-4503)

30. Advance Directives Idaho law authorizes Idaho law authorizes –Living wills –Durable power of attorney for health care –Physician orders for scope of treatment (“POSTs”) –DNRs (?) –“Any authentic expression of a [competent] person’s wishes with respect to health care should be honored.” (IC 39-4509 – 39-4512)

31. Surrogates In the case of minors or persons not capable of giving consent, consent for health care may be given or refused per priority set forth below; provided, that the surrogate may not override wishes of patient. In the case of minors or persons not capable of giving consent, consent for health care may be given or refused per priority set forth below; provided, that the surrogate may not override wishes of patient. –Legal guardian –Person named in a living will, durable power of attorney, etc. " –Spouse –Parent –Any relative representing himself or herself to be an appropriate, responsible person to act under the circumstances; –Any other competent individual representing himself or herself to be responsible for the health care of the patient; or –In emergency, the attending physician. (IC 39-4504)

32. Neglect or Abuse: Child Child neglect = without proper medical care for his well-being because of conduct, omission, or refusal by parents, guardians, or other custodian. Child neglect = without proper medical care for his well-being because of conduct, omission, or refusal by parents, guardians, or other custodian. –Parent or guardian may choose to treat by prayer through spiritual means. –But court may still order care per IC 16-1627. (IC 16-1602)

33. Authorization for Emergency Care of Child Court may authorize medical care if: Court may authorize medical care if: –Parent, guardian or custodian is not available or refuses to consent to care, and –Physician certifies that life of child would be greatly endangered without certain treatment. Court may order hearing if there is time. Court may order hearing if there is time. Court shall take into consideration treatment given to child through spiritual means if child, parent, guardian or custodian are adherents of a bona fide religious denomination that relies on this form of treatment. Court shall take into consideration treatment given to child through spiritual means if child, parent, guardian or custodian are adherents of a bona fide religious denomination that relies on this form of treatment. (IC 16-1627)

34. Neglect or Abuse: Vulnerable Adult Vulnerable adult = Vulnerable adult = –Person 18 or older –Unable to protect themselves from neglect due to physical or mental impairment which affects person’s judgment or behavior to the extent that the person lacks sufficient understanding or capacity to make, communicate, or implement decisions. Vulnerable adult neglect = failure of caretaker to provide medical care reasonably necessary to sustain life and health of vulnerable adult, or failure of vulnerable adult to provide for themselves. Vulnerable adult neglect = failure of caretaker to provide medical care reasonably necessary to sustain life and health of vulnerable adult, or failure of vulnerable adult to provide for themselves. –Patient may rely on treatment by spiritual means through prayer per tenets of recognized church or religious denomination. –Patient may object to particular medical care or treatment. (IC 39-5302)

35. Withdrawing Care of Developmentally Disabled Persons No physician or caregiver shall withhold or withdraw medically necessary treatment (i.e., treatment necessary to protect life, health or well-being) of a developmentally disabled person whose condition is not terminal or whose death is not imminent.. No physician or caregiver shall withhold or withdraw medically necessary treatment (i.e., treatment necessary to protect life, health or well-being) of a developmentally disabled person whose condition is not terminal or whose death is not imminent.. If guardian refuses, physician may provide medically necessary treatment per IC 39-4504. If guardian refuses, physician may provide medically necessary treatment per IC 39-4504. (IC 66-405(7))

36. Withdrawing Care of Developmentally Disabled Persons Guardian may consent to withholding or withdrawing artificial life-sustaining procedures for developmentally disabled person only if attending physician + one other physician certify either: Guardian may consent to withholding or withdrawing artificial life-sustaining procedures for developmentally disabled person only if attending physician + one other physician certify either: –Patient has incurable injury, disease, illness or condition that is terminal such that the application of artificial life-sustaining procedures would not result in the possibility of saving or significantly prolonging the life of the respondent, and would only serve to prolong the moment of the respondent’s death for a period of hours, days or weeks, and death is imminent, whether or not the life-sustaining procedures are used; or –Patient is in persistent vegetative state which is irreversible an from which respondent will never regain consciousness. (IC 66-405(7))

37. Withdrawing Care of Infants In case of infant, may withhold medically indicated treatment (other than appropriate nutrition, hydration and medication) if physician determines: In case of infant, may withhold medically indicated treatment (other than appropriate nutrition, hydration and medication) if physician determines: –Infant is chronically and irreversibly comatose; or –The provision of such treatment would merely prolong dying, would not be effective in ameliorating or correcting all of the infant’s life-threatening conditions, or would otherwise be futile in terms of survival of the infant; or –The provision of such treatment would be virtually futile in terms of the survival of the infant, and the treatment itself would be inhumane. (“Baby Doe” regs, IDAPA 16.06.05.001.10)

38. Withdrawing or Withholding Care: Summary Generally follow patient’s wishes. Generally follow patient’s wishes. Absent patient wishes, generally follow surrogate’s wishes. Absent patient wishes, generally follow surrogate’s wishes. If surrogate refuses necessary care, consider: If surrogate refuses necessary care, consider: –Report child or vulnerable adult neglect –Seek court authorization to treat child In case of developmentally disabled person, In case of developmentally disabled person, –Provide medically necessary care, or –Obtain physician certification of conditions. In case of infant, In case of infant, –Report child neglect, –Seek court authorization, or –Obtain physician certification of conditions. If provider disagrees, work with patient or surrogate to transfer care. If provider disagrees, work with patient or surrogate to transfer care. *Ethics committee can be great resource to work through issues.

39. Futile Care Idaho’s consent statute does not require medical treatment that is medically inappropriate or futile. Idaho’s consent statute does not require medical treatment that is medically inappropriate or futile. (IC 39-4514(5); see also IDAPA 16.06.05.001.10)

40. Euthanasia Idaho’s consent statute does not make legal, and in no way condones, euthanasia, mercy killing, or assisted suicide or permit an affirmative or deliberate act or omission to end life, other than to allow the natural process of dying. Idaho’s consent statute does not make legal, and in no way condones, euthanasia, mercy killing, or assisted suicide or permit an affirmative or deliberate act or omission to end life, other than to allow the natural process of dying. (IC 39-4514(2))

41. Provider Conscience No health care professional shall be required to provide any health care service that violates his or her conscience, i.e., the religious, moral or ethical principles sincerely held by any person. No health care professional shall be required to provide any health care service that violates his or her conscience, i.e., the religious, moral or ethical principles sincerely held by any person. Does not allow refusal to provide care because of a patient’s race, color, religion, sex, age, disability or national origin. Does not allow refusal to provide care because of a patient’s race, color, religion, sex, age, disability or national origin. (IC 18-611(2)) *Probably has obligation to facilitate transfer of care.

42. Provider Conscience: Life-Threatening Situations If a health care professional invokes a conscience right in a life-threatening situation where no other health care professional capable of treating the emergency is available, such health care professional shall provide treatment and care until an alternate health care professional capable of treating the emergency is found. If a health care professional invokes a conscience right in a life-threatening situation where no other health care professional capable of treating the emergency is available, such health care professional shall provide treatment and care until an alternate health care professional capable of treating the emergency is found. (IC 18-611)

43. Provider Conscience: Advance Directives If ethical or professional reasons make provider incapable or unwilling to comply with advance directives, provider may withdraw after making good faith effort to assist patient in obtaining services of another provider who is willing to provide care per the advanced directive. If ethical or professional reasons make provider incapable or unwilling to comply with advance directives, provider may withdraw after making good faith effort to assist patient in obtaining services of another provider who is willing to provide care per the advanced directive. (IC 39-4513(2))

44. Patient Abandonment Providers may be sued or disciplined for abandonment of patient. Providers may be sued or disciplined for abandonment of patient. (See IC 54-1814(15); common law cases) At common law, to avoid patient abandonment, provider must generally give: At common law, to avoid patient abandonment, provider must generally give: Notice to patientNotice to patient Time for patient to transfer careTime for patient to transfer care Necessary care in meantimeNecessary care in meantime Even in conscience cases, may need to comply with patient abandonment principles. Even in conscience cases, may need to comply with patient abandonment principles.

45. Resources National Institute of Health, Bioethics National Institute of Health, Bioethics –www.bioethics.nih.gov www.bioethics.nih.gov American Society for Bioethics and Humanities American Society for Bioethics and Humanities –www.asbh.org www.asbh.org AMA Council on Ethical and Judicial Affairs AMA Council on Ethical and Judicial Affairs –www.ama-assn.org www.ama-assn.org Others Others

46. Questions? Kim C. Stanger (208) 388-4843 kcstanger@hawleytroxell.com