in Breast Surgical Oncology

Laura Guidry-Grimes, PhD(c)

Clinical Ethicist
John J Lynch, MD Center for Ethics
OUTLINE

 Introduction to Ethics

 Bioethics Services in a Hospital

 Capacity for Health Care Decision Making

 Surrogate Decision Making

 Professional Obligations
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INTRODUCTION TO ETHICS
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WHAT IS ETHICS?
 Ethics is the formal, systematic study of what
counts as the good, who we ought to be, what
types of responsibilities we have, and how we
should judge right from wrong action.

 Ethicists provide reasons for choosing one

course of action over others
 More than merely feeling something to be
desirable or preferable

 Can be independent of religious, cultural, and

legal considerations

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STEPS TO ETHICAL E VALUATION

 What are the relevant facts?

 Med state, psych state, social situation, feasible
options, etc.

 Who or what could be affected by the way the

decision is resolved?
 Who has a stake in the outcome?

 What are the relevant ethical considerations?

 Patient autonomy, professional integrity, fairness,
patient welfare, respect, pluralism/diversity, religious
freedom, etc.

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STEPS TO ETHICAL E VALUATION

 What is the primary ethics question? Others?

 Separate from what should be done medically, legally,
culturally

 Who is morally responsible for what?

 Consider roles, institutional constraints

 Which options are ethically permissible?

Which course of action is morally preferable?

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BIOETHICS SERVICES IN A
HOSPITAL
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CLINICAL ETHICS
CONSULTATION SERVICE

PAGER: 202.801.1005

CALL OFTEN & EARLY!

24/7, 365 days per year
We take anonymous calls/pages, too!

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C ENTER FOR E THICS @ MWHC AS E XAMPLE

 Ethics Consult Service

 24 / 7, 365 days per year
 Recommendations in chart and curbside coaching
 Rounding

 Ethics Committee
 Organizational Ethics Subcommittee
 Policy Subcommittee

 Educational initiatives
 Continuing training on EOL care, code status, informed
consent
 Moral distress programming
 Ad hoc talks

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B IOETHICS SERVICES: W HERE WE A SSIST
 Preventive ethics and crisis assistance
 End of life and goals of care
 Are there good moral reasons to withdraw LSTs?

 Code status
 Would resuscitation and intubation be more harmful than
beneficial? Should this decision be left to the family?

 Surrogacy and capacity

 Who is the ethically appropriate decision maker?

 Professionalism
 Is there a strict moral obligation to treat abusive patients?

 Many, many others

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CAPACITY FOR HEALTH CARE
DECISION MAKING
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COMPETENCE/CAPACITY
 Refers to someone’s ability to make decisions for him-
/herself

 Law presumes competence of all cognitively “intact” adults

 To treat a pt as incapacitated, DC requires documentation from an
attending physician and a psychiatrist or licensed psychologist

 When a patient is declared incapacitated/incompetent,

there is (generally) a duty to appoint a surrogate, who will
 a) use the best interest standard (if never competent) or
 b) use the substituted judgment standard (if formerly competent)

 ‘Competence’ often used as legal designation

 ‘Capacity’ as broader term, determination that medical
professionals have to make in clinical contexts
 From Appelbaum & Grisso

ELEMENTS OF CAPACITY
 Communicating choice
 Sufficiently clear communication of a stable, intelligible choice

 Understanding relevant information

 Memory, reception, storage, and retrieval of information; basic
understanding of cause-and-effect and probabilities

 Appreciating the situation and consequences

 “realistic evaluation of factors”; ability to grasp what the
proposed medical intervention means for that patient

 Manipulating information rationally; reasoning

 Ability to produce “recognizable reasons”
ETHICAL IMPORTANCE OF CAPACITY
DETERMINATIONS
 For patients who have capacity:
 Respect patient autonomy – not depriving patients of
their decisional authority unnecessarily; avoiding
unwarranted paternalistic intervention

 For patients who lack capacity:

 Beneficence/non-maleficence – protecting the welfare
interests of those who cannot make decisions for
themselves

 Additional concerns:
 Protecting vulnerable patients
 Avoiding “blanket labeling” of (e.g.) mentally ill persons
SLIDING SCALE MODEL
 Capacity as a threshold concept

 Contextual
 Risks and benefits weighed according to particularities
of patient, circumstances

 Choice-specific, decision-specific
 Can have capacity to consent to y without having
capacity to consent to x
 Can have capacity to consent to y without having
capacity to refuse y
 From Buchanan & Brock, pg. 53

SLIDING SCALE MODEL

Other’s risk/benefit Grounds for believing
Level of decision-
Patient’s treatment assessment of that patient’s choice best
making competence
choice choice in comparison promotes/protects
required
with other alternatives own well-being

Consents to lumbar
Net balance substantially Principally the
puncture for
better than for possible Low/minimal benefit/risk assessment
presumed
alternatives made by others
meningitis

Roughly same
Chooses Net balance roughly benefit/risk assessment
lumpectomy for comparable to that of Moderate made by others ; best
breast cancer other alternatives fits patient’s conception
of own good

Principally from
Refuses surgery for Net balance substantially patient’s decision that
simple worse than for another High/maximal the chosen alternative
appendectomy alternative(s) best fits own
conception of own good
FORMS OF I NFLUENCE ( INTENTIONAL OR NOT )
 Coercion
 Credible threat + subject responds as if threatened

 Persuasion
 Remonstration, appeal to reason

 Manipulation
 Informational: framing or interpreting information in a way that
suits the interests of the manipulator
 Emotional

 Problems of inducement in medical research

 Attempts to convince patients to agree with physician in
medical care … when can this ethically overstep?
SURROGATE DECISION MAKING

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TYPES OF SURROGATES
 Different types:
 Legally appointed Power of Attorney for Medical Decision
Making (POA)
 Guardian
 Family member or other closely affiliated person

 Surrogacy hierarchy (negotiable)

 DPOA
 Court-appointed guardian
 Spouse/partner
 Adult children
 Parents
 Adult siblings
 Concerned party/religious order 19
S TANDARDS FOR S URROGATE D ECISION -M AKING

 Patient’s own wishes: Aim for clear evidence,

enduring preferences (e.g., through advance
directive)
 Substituted judgment standard: Based on
what the patient has expressed and what is
known of his/her values, would the pt want in
these circumstances?
 Best interest standard: What option(s) will
provide the most net benefit over net harm to
this patient?
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D IFFICULT C ASES
 Elderly patients who want one type of
treatment/surgery, and children want something else
for their parent.
 Patient with dementia and psychiatric disability
(declared incompetent by court) who would meet
criteria for potentially high benefit, low burden
surgery.

 Patient with dementia who has likely Pylloides tumor

that has grown to large size and is causing morbidity.
Resection would be feasible and improve quality of
life, but family does not want to consent.
PROFESSIONAL OBLIGATIONS

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2015 ATS/AACN/ACCP/ESICM/SCCM POLICY
STATEMENT
Preliminary Based in values
(call for humility) assessment

 Recommends ‘potentially inappropriate’ for

treatments that have “at least some chance of
accomplishing the effect sought by the patient,
but clinicians believe competing ethical
considerations justify not providing them”
 ‘futile’ only for interventions that “cannot
accomplish the intended physiologic goal”

 Conflict prevention and resolution strategies

 Procedural emphasis
PROFESSIONAL ETHICS
 Not professionally required to provide or
continue futile or potentially
inappropriate treatment
 Undermines aims of health care profession
 Professional integrity and clinician autonomy
 Importance of upholding professional standards
 Losing public confidence
 Unjustifiable (?) risk of harm to patient
 Stewards of scarce resources
 From Jack Schwartz, JD

MEDICAL ERROR AND HONESTY

 “Traditionally, risk managers advised

physicians to withhold error disclosure from
patients out of fear of lawsuits.”
Brown et al. 2012

 “Even when doctors or other members of the

delivery team know they've messed up, they are
usually instructed to keep their mouths shut. An
apology, or even the suggestion of error, they are
told, is an invitation to a malpractice suit.”
Ready 2016
 From Jack Schwartz, JD

MEDICAL ERROR AND HONESTY

 The ethical norm: honest disclosure
 “Physicians agreed in principle that patients should be told
about any error that caused harm, and many said such
disclosure was ethically imperative.”
Gallagher et al. 2003

 “A general consensus has been reached among bioethicists

and those within the medical profession: physicians and
surgeons have an ethical obligation to patients to disclose
errors made during their health care.”
Moffatt-Bruce, Ferdinand, and Fann 2016

 “Ultimately, as challenging as it is, ethical obligations and

safety imperatives should drive us to be open when faced
with an error we have made.”
Kachalia 2016
 From Jack Schwartz, JD

MEDICAL ERROR AND HONESTY

 Not disclosing error may actually increase legal risk

 “Patients want, and expect, clinicians to apologize.

Patients also want to know that the health care system
will learn from the mistake and prevent it from
happening again.”
Levinson, Yeung, and Ginsburg 2016

 “Treating patients with respect and communicating in an

honest, open, empathetic manner can reduce legal
risk.”
Forster, Schwartz, and DeRenzo 2002
D IFFICULT C ASES

 Patient wants breast biopsy clips removed

because of fear they will “erode through her
heart and kill her.” Surgery would cause
significant harm and is unnecessary, but patient
is pleading.

 Surgeon removes the wrong area of the breast,

leaving the cancer in place.
 ETHICS PAGER: 202.801.1005

Thank You!

QUESTIONS?
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