Bioethics

Ethics and Emergency Medicine

In emergency medicine, the focus is inevitably on the inherent “medical” nature of each case; therefore, it should come as no surprise that ethical dilemmas often go unrecognized. Emergency clinicians may also misperceive ethics as embodying the dictates of secular or religious law or as a discipline that describes irresolvable issues.

This chapter addresses several ethical issues in emergency medicine. What follows are brief discussions of the relation of law to bioethics; bioethical values and principles; moral imperatives in emergency medicine; ethical oaths and codes; applying bioethics to clinical situations; bioethical dilemmas in emergency medicine; a rapid decision-making model for ethical dilemmas; advance directives; the relationship between consent, decision-making capacity, and surrogate decision makers; ethical issues in resuscitation; and ethical issues in public policy.

Bioethics and the Law

Emergency clinicians often look to the law for answers to thorny dilemmas. Yet, except in the rare cases of “black-letter law,” wherein specific actions are delineated, these issues are best served by turning to bioethical reasoning and using bioethics consultations. It is said that good ethics makes good law but that good law does not necessarily make good ethics. Societal values are incorporated both within the law and within ethical principles and decisions. Laws are rules of conduct established by legislatures, administrative agencies, courts, or other governing bodies. They often vary from locale to locale and are enforceable only in the jurisdiction where they prevail. By contrast, ethics is more universal within a culture, incorporating the broad values and beliefs of correct conduct. The primary differences between law and bioethics are shown in Table e6.1 .

Modern bioethics developed because the law often has remained silent or inconsistent on matters vital to the biomedical community. The rapid increase in biotechnology, the failure of both the legal system and legislatures to deal with new and pressing issues, and the increased liability crisis drove the medical community to seek answers to the difficult questions that practitioners must work through on a daily basis.

Bioethical principles are not static and may evolve as societies change. The same evolution occurs within the law. For example, elective abortion, once illegal in most United States (US) jurisdictions, is now legal in most circumstances and jurisdictions. Likewise, not all basic ethical principles have universal support, just as the values implicit in many legal changes have divided US society.

Rights and Duties

Without a duty to act, there can be no rights . Both a moral and a logical connection exist between the rights and the duties of individuals; one cannot exist in the absence of the other. In general, a duty is an action required by the rights of others, the law, a higher authority, or one’s conscience. This obligation to act can be based on an individual’s personal values, professional position, or other commitments. For the physician, this duty to act is a role responsibility, at least specifically as a physician and possibly always. The role-duty link occurs whenever a person occupies a distinctive place or office in a social organization to which specific duties are attached to provide for the welfare of others or to advance in some specific way the aims or purposes of the organization. In this circumstance, performance is predicated not on a guarantee of compensation but rather on a concern for another person’s welfare. The emergency clinician has not only such a moral duty but, because of the Emergency Medical Treatment and Active Labor Act (EMTALA), also a legal duty.

Significant overlap can exist between legal and ethical decision making. Frequently, there is concurrence on basic issues. On occasion, clarity within the law can lead to clearer thinking in bioethics, and vice versa. Both law and bioethics, for example, use the term rights, as in “patients’ rights” and “the right to die.” This term is often used to advance an ethical argument about medical care and is frequently misunderstood or applied erroneously. A legal right is a demand that a person can make on another person, embodied by in personam rights, or against the state for recognition and enforcement of this demand. Most rights involved in bioethical discussions are in rem rights. These most often are negative rights, because they entail someone else’s duty to refrain from doing something. A common source of ethical conflict is between “active rights,” the right to act or not act as one chooses, and “passive rights,” the right to not be acted on by others in certain ways.

Values

Values are the standards by which human behavior is judged. Values are learned, usually at an early age, through indoctrination into the birth culture, from observing behavior, and through secular (including professional) and religious education. Although many of these learned values overlap, each source often claims moral superiority over the others, whether the values are generic and cultural, legal norms, religious and philosophical traditions, or professional principles. Societal institutions incorporate and promulgate values, often attempting to solidify old values even in a changing society. In a pluralistic society, clinicians treat people with multiple and differing value systems, so they must be sensitive to alternative beliefs and traditions. This section discusses the role of religious, patient, institutional, and professional values, including professional oaths and codes specific to emergency medicine.

Patient Values and Ethical Decisions

A key to making bedside ethical decisions is knowing the patient’s values. Many people cannot answer the question: What are your values? However, physicians can get an operational answer by asking patients what they see as their goal of medical therapy and why they want specific interventions. The responses represent concrete expressions of patient values. In patients who are too young or are deemed incompetent to express their values, it may be necessary for physicians either to make general assumptions about what a normal person would want in a specific situation or to rely on surrogate decision making. But with patients who can reason and communicate, care should be taken to discover what they hold as their own, uncoerced values.

Although each individual is entitled and perhaps even required to have a personal system of values, certain values have become generally accepted by the medical community, the courts, legislatures, and society at large. Autonomy and individual dignity, for example, are two such values; they have been considered fundamental and often are given overriding importance, especially in many Western societies. Although some groups disagree about each of these values, this dissension has not affected their application to medical care.

Nonmaleficence and Autonomy

The basic tenet that all medical students are taught is nonmaleficence: “First, do no harm.” This credo, often stated in Latin, primum non nocere, derives from the recognition that physicians can harm as well as help. With the physician’s fallibility recognized, patient autonomy is and has been for several decades the overriding professional and societal bioethical value. Autonomy recognizes an adult person’s right to accept or to reject recommendations for medical care, even to the extent of refusing all care, if that person has appropriate decision-making capacity. It is the counterweight to the medical profession’s long-practiced paternalism (or parentalism), wherein the practitioner determines what is “good” for the patient, regardless of whether the patient agrees. Coupled with paternalism is coercion, the threat or use of violence to influence behavior or choice. The authority figure in a white coat combined with implied or explicit threats remains a potent force for counteracting patients’ wishes. The thrust of modern bioethics is to respect patients by honoring their autonomy ( Box e6.1 ).

Beneficence

At the patient’s bedside, beneficence (doing good) and confidentiality (holding information in confidence) have been long-held and nearly universal tenets of the medical profession. Similarly, personal integrity (the adherence to one’s own moral and professional standards) is basic to thinking and acting ethically.

Justice

The concept of comparative or distributive justice suggests that a society’s comparable individuals and groups should share similarly in the society’s benefits and burdens. Many society-wide decisions affecting thoughts and actions about the allocation of limited health care resources are based on this principle. Although it is important for physicians to be careful stewards of health care resources to maximize benefits, it is not appropriate for clinicians to limit or to terminate care on a case-by-case basis as an extrapolation of the perceived need to limit health care expenditures. Distributive justice is a social policy concept rather than a clinical model for individual physician/patient decisions.

Truth-Telling

Personal integrity involves adhering to one’s own reasoned and defensible set of values and moral standards and is basic to ethical thought and action. Integrity includes a controversial value within the medical community: truth-telling. Some people think that the patient has the right to know the truth, no matter what the circumstances, and have championed absolute honesty. Yet many of these same people, when patients themselves, have been appalled by their physician’s lack of sensitivity in relating unfavorable medical news. In this context, being honest does not mean being brutal; the truth is best tempered with a modicum of compassion.

Physicians accept a lack of truth-telling, depending on the circumstances. When patient harm may result from failing to disclose the truth, such as happened in the infamous Tuskegee experiments, in which treatment was knowingly withheld from Black men with syphilis, it is not only immoral but also probably illegal to withhold the information. Likewise, when failure to disclose information is strictly for the clinician’s benefit, such as not telling a patient about a dismal prognosis or a medical error, the clinician’s behavior suggests serious ethical and legal deficits. The issues become murkier when truth-telling, or lack thereof, involves a third party, such as a sex partner who has been exposed to an infectious disease.

Confidentiality Versus Privacy

Stemming at least from the time of Hippocrates, confidentiality is the presumption that what the patient tells the physician will not be revealed to any other person or institution without the patient’s permission. Health care workers have an obligation (duty) to maintain patient confidentiality. On occasion, the law, especially public health statutes, may conflict with this principle, because they require physicians to report specific diseases, injuries and injury mechanisms, and deaths. The Health Insurance Portability and Accountability Act (HIPPA) of 1996, a US federal law designed to protect patient information, however, takes the principle of confidentiality to the extreme, often resulting, paradoxically, in greater difficulty in obtaining crucial information needed to treat emergency department (ED) patients.

Privacy, which is often confused with confidentiality, is the right of patients to enough physical and auditory isolation so that they cannot be seen or heard by others during interactions with medical personnel. ED overcrowding, patient and staff safety issues, and ED design limit patient privacy in many cases.

The increasing use of telemedicine to render advice and to guide procedures at remote sites also places a strain on both patient privacy and confidentiality. Suggested ethical guidelines for such practices can facilitate the use of these new technologies without sacrificing either patient rights or physician duties.

Professional Values

Emergency clinicians, in both the out-of-hospital and ED environments, operate with four imperatives: (1) to save lives when possible, (2) to relieve pain and suffering, (3) to comfort patients and families, and (4) to protect staff and patients from injury. All but the last of these are common imperatives of most other clinicians as well, although saving lives may occur more often and more dramatically in emergency medicine settings.

Safety: A Unique Value

The last imperative, safety, is nearly unique to emergency medicine. In both the out-of-hospital and ED settings, clinicians often encounter dangerous situations in which the environment, the patient, a friend, or a family member poses a threat. Violence against emergency care workers is well documented and unfortunately common. The ED routinely deals with psychotic and intoxicated patients and patients injured in human-on-human attacks, and those involved are often under extreme stress. Although most try to accommodate basic patient rights, clinicians’ priority must be their own safety and the safety of their co-workers. This priority does not imply that clinicians should ignore patient safety but only that they should first ensure their own safety if they or their colleagues are at risk. When involved in or directing out-of-hospital activities, especially those related to wilderness medicine, safety and security will usually supersede most other considerations.