Ethical Decision Making: Black, White, and Shades of Grey Mary Eleanor Wickersham, D.P.A. School of Business and Public Affairs College of Coastal Georgia

ETHICS LAW/COMPLIANCE

Compliance Compliance Programs Ethics/Laws/ Regulation are the basis of Regulation Laws are the basis of Ethics Foundation of good laws is Required for sensitivity to moral issues; ability to see moral conflict for what it is and to think creatively about “solutions that are... morally justifiable” (Patricia Werhane ) Required for sensitivity to moral issues; ability to see moral conflict for what it is and to think creatively about “solutions that are... morally justifiable” (Patricia Werhane ) Moral imagination

N E I T H E R

Conflicting Claims Autonomy vs. nonmaleficence Autonomy vs. beneficence Justice vs. necessity Justice vs. fairness Friendship vs. fairness Quality of life vs. safety Necessity vs. patient demand Cost vs. outcomes Long-term vs. short-term Religious beliefs vs. professional goals Mistakes vs. intentional wrongdoing

Sources of conflict Warring family members Provider disagreement Professional uncertainty Disagreement about outcomes Lack of resources Differing motivations: outcomes vs. cost; research goals vs. patient outcomes; facility bottom line vs. patient needs/outcomes

Guides for Decision Making Often helpful to have a tool to guide decision making; we will examine several Sometimes, you need expertise of either a mediator or ethics consultant or professional expertise Decision making takes practice Groupthink is the antithesis of good decision-making Despite what you’ve heard, brainstorming has disadvantages Sometimes there are no good solutions, so we must seek the “least-worst” alternative

Case Analysis: SFNO SFNO method works well for clinical cases, but also other types of decision making Easy to remember Identifying norms takes practice – Community norms, ethical norms, legal norms, social and cultural norms

DuBois’ “So Far, No Objections” Stakeholders – who will be significantly affected by the decision (institutional/individual); who are they and what are their positions; can be the source of the dilemma Facts – What are the facts surrounding the case (sometimes requires research); sometimes the source of the dilemma Norms – What are the ethical principles at stake? Where do they conflict? Often the source of the dilemma. Options – What actions or policies deserve serious consideration? If there is no clear answer, what compromise solutions are most attractive? Dubois, James. “A Framework for Analyzing Ethics Cases.” EMHR Network.

Ethics Committee – Case One Ms. Jones was readmitted to your facility after a four-day stay at the hospital. She is back in her room at the SNF and she is having IV antibiotics for 7 days. She is doing well, though she appears depressed. Her daughter visits from her home in another state and demands that her mother be sent back to the hospital where she can have a higher level of care. Since her daughter has arrived, Ms. Jones says that her condition has worsened and she would get better care in an acute setting. – Who are the stakeholders in this discussion? – What are the facts of the case? – What are the norms to be considered? – What are your options? – What is the decision?

Case Analysis: Moral Reasoning Tool Sources of conflict: – Family issues – SFNO works well, but there are other helpful tools like Moral Reasoning Tool – One mandate is that decision-makers – in this case your ethics committee – must agree on the ethical dilemma. Sometimes that is easier said that done. The Moral Reasoning Tool works well as a guide to help you reach consensus.

The Moral Reasoning Process Situation Definition Description of Facts Identification of Principles and Values Statement of ethical issue or question Analysis Weighing of competing principles and values Consideration of external values Examination of duties to various parties Discussion of applicable ethical theories Decision Rendering of moral agent’s decision (ethics committee) Defense of that decision based on moral theory (how do you justify decision) Day, L.A. (2003). Ethics in media communications: Cases & controversies. Belmont, CA: Wadsworth.

Ethics Committee – Case Two Anne is having extreme difficulty in making the decision to forego nutrition and hydration for her mother, who at 89 appears to be in the final stages of Alzheimer’s disease. Anne’s mother lived with her and her husband for 15 years before coming to the nursing home, and he is pressuring her to ask for a feeding tube. Anything less, he says, would be tantamount to murder. The doctor, who told Anne her mother’s case was “hopeless,” has worries about the moral implications of his recommendation not to use a feeding tube. Is this a common scenario in your facility? Why do you think this happens? What does CMS tell us about our goal in nursing homes? Do you think this scenario is an ethical issue? Use the moral reasoning device to work on this case.

Case Analysis: Ethics Tests Sources of conflict: – Provider disagreements – Marketing issues – Lack of resources – Conflict of interest/competing motivations – Employee issues Ethics Test has questions to guide committee/decision-maker through ethical thought process

Dunfee, Smith, and Ross: Ethical Tests Thomas W. Dunfee, N. Craig Smith, and William T. Ross, “Social Contracts and Marketing Ethics,” Journal of Marketing, 63 (July): 14-32, 1999 Does the contemplated action violate the law?” (Legal Test) Is this action contrary to widely accepted moral obligations? (Duties Test) Does the proposed action violate any other special obligations? (Special Obligations Test) Is the intent of the contemplated action harmful? (Motives Test) Is it likely that any major damages to people or organizations will result from the contemplated action? (Consequences Test) Is there a satisfactory alternative action that produces equal or greater benefits to the parties affected than the proposed action? (Utilitarian Test) Does the contemplated action infringe upon property rights, privacy rights, or the inalienable rights of the consumer? (Rights Test) Does the proposed action leave another person or group less well off? Is this person or group already a member of a relatively underprivileged class? (Justice Test) If the answer of any of these questions is yes, then the issue needs to be studied further. (From Social Contracts and Marketing Ethics).

Ethics Committee – Case Three Twenty percent of the beds in your facility are empty. You were approached last week by a new hospice organization that says that they are interested in contracting with the nursing home at the prevailing rate and they are willing to comply with facility rules about management of the care plan. One proviso, however, is that they are trying to build census, and just from their tour of the facility, they believe that there are patients in your facility who might quality for hospice care. They would like to screen all of the patients to determine eligibility. Incidentally, the marketing person told you, they have two to three people in the community who need a higher level of service and might be interested in nursing home care Use the Dunfee, Smith, and Ross method to discuss this case.

Case Analysis: C.L.I.C.K. Sources of conflict: – Employee issues – PR issues (visitors, volunteers, larger community) – Dilemmas with regulators, other outside entities – Corporate conflict – Good for compliance committees Easy to remember, can be taught, works well for non-professionals

Pearl Moore’s CLICK method Consequence: What are the consequences if I do this? Who will benefit? Who will suffer? Legal: Is it legal? Image: Would I like to see this on the front page of the newspaper? Would I feel good telling this to my friends and family? Culture: Does this decision support or damage our organization’s culture and values? Know: Does doing this cause a knot in my stomach? Pearl Moore, “Ethical Decision Making Will Yield Favorable Outcomes,” ONS News, July 2003, Vol. 18, Issue 7, p. 15.

Compliance Committee – Case Four You have established a Code of Ethics in your facility, you’ve educated staff, and all of the employees have signed off on it. The code clearly states that gifts of more than a nominal value may not be accepted by staff. Nominal is considered to be less than $15. A report has just come in your hotline that one of your longest, most dependable, and best-loved employees, who is set to retire next year, six months ago accepted an old car from the family of a resident who died. What do you do?

Challenges Sometimes there are no good answers and nobody is happy with outcome Important to have a process that can be put into place quickly – Ethics and compliance committee should be in place; not necessarily the same group It takes practice to gain confidence, but practice will help with other everyday decisions Sometimes need to consider outside facilitator

Thank you. Mary Eleanor Wickersham, DPA School of Business and Public Affairs College of Coastal Georgia 1 College Drive Brunswick, GA