Canadian Medical Association Journal 1996; 154: 1094-1095
The situation has changed. Research ethics committees (RECs) are now a standard feature of teaching hospitals, and ethics committees that serve an educational role, provide a forum for discussion or even give advice on difficult ethical issues are becoming quite common.
In 1985 the Canadian Council on Hospital Accreditation suggested that it would be appropriate for hospitals to establish ethics committees "to consider and advise on pertinent moral issues"; in 1992 the Canadian Council on Health Facilities Accreditation echoed this position. Since "suggestions" of this sort are often treated as requirements, ethics committees will likely become increasingly prevalent in health care facilities and will have a corresponding impact on patterns of practice. Ethics committees come in several types, all with different functions. On the one hand, educational committees were created to raise professional awareness of ethical issues, many of which had gone unrecognized, but they do not make decisions or give advice. On the other hand, RECs study research protocols submitted by physicians who have access to patients in hospitals and decide whether the projects are ethically sound or should be rejected. The role of case-oriented ethics committees (COECs), as the name implies, is to look at actual cases and give advice. Some go further and make decisions about the matters that are brought before them. Still other committees combine education and decision-making functions, or simply provide a forum for raising and discussing ethical issues. There are about as many types of ethics committees as there are hospital administrators willing to invent them.
Each type of committee offers advantages. On the one hand, educational committees foster both education and increased sensitivity to ethical issues, while RECs are invaluable because they tend to prevent the unethical experimental practices that characterized some traditional medical research. Today, RECs are so well entrenched that little if any research is funded or undertaken without their approval, and research that has not received REC approval is routinely rejected by medical journals such as CMAJ. On the other hand, COECs are useful because they provide welcome help to physicians who are faced with particularly difficult ethical dilemmas. Discussion-oriented committees provide both staff and patients with the opportunity to explore the ethical ramifications of actual situations they face without attempting to develop a resolution.
These positive points notwithstanding, ethics committees also present serious challenges. The very climate of ethical sensitivity that is fostered by educational and discussion-focused committees may also lead to hypersensitivity and a climate of "ethical paranoia."
Further, if educational committees are to be successful, their members must have sufficient expertise in bioethics to be able to identify and produce properly structured educational programs. This is becoming increasingly difficult as bioethics matures as a discipline and the standard for ethical acceptability is no longer what colleagues think, but what is defensible in terms of professional ethics.
Committee members generally lack formal training in this area. Most learn their medical ethics in workshops and seminars, or attend some courses in bioethics. Unfortunately, participation in workshops and courses does not provide sufficient expertise in medical ethics. To assume that it does is comparable to thinking that lawyers can become experts in otolaryngology by taking some workshops or courses, or that physicians become experts in law by taking similar abbreviated and expedited training. Research ethics committees face the same expertise problem -- as indeed do all types of ethics committees -- but in their case the problem is intensified because of liability. One recent case, Solomon v. Weiss, has shown that a hospital may be held liable for decisions made by its REC. Because formally trained experts in medical ethics are being called on more and more often to testify in court on matters of medical ethics, an REC that does not have its own experts on board may place its hospital at a decided disadvantage when it has to defend criteria used in its deliberations and decisions.
Case-oriented ethics committees are in a similar position. On the one hand, if they provide bad or misleading advice there can be legal action against the hospital and physicians who took their advice. The very existence of these committees raises a difficult question: What happens when physicians fail to follow advice these committees have provided? These doctors may have a hard time defending their independent actions, since these committees have more expertise in ethical issues than the physicians themselves. If they didn't, why would the doctors ask for advice in the first place?
On the other hand, failure to seek a COEC's advice might also cause problems. In a world of increasing ethical sensitivity, failure to seek advice in ethically difficult cases, even though such advice is readily available, may foster an impression of negligence. Therefore, the practice climate that COECs create may place physicians in a no-win situation. Another source of difficulty is that COECs deal with specific cases, which raises concern about privacy and confidentiality. The fact that a COEC is a duly constituted hospital committee does not automatically give it right of access to patient records.
If appropriate patient permission has not been received, access to relevant records constitutes invasion of privacy on the committee's part and breach of confidentiality by the physician who sought the committee's input. It is not always possible to resolve this problem by making patient records anonymous by removing all identifying material. In a small hospital, difficult ethical cases are easily identified simply on the basis of the data, and identifiers are not needed.
Likewise, COEC records may pose a problem. Under currently evolving freedom-of-information legislation, any governmental agency must make its records available to public inspection. This means that unless otherwise stated in the relevant legislation or contained in the attendant regulations, the records of a COEC, like those of the hospital itself, are also accessible. Privacy bodies in various provinces have indicated that freedom-of-information legislation would not apply to such records. However without explicit legislation and regulations covering this point, such assurances may ring hollow.
Committees that focus on discussion avoid these problems, but since their purpose is to provide a forum for debate, they necessarily must operate at a relatively simple level because their audience is not trained in ethics. Unfortunately, this may foster a simplistic approach toward ethics itself. As well, the debate-like atmosphere that such committees can create may leave the impression that ethics is what one wants it to be -- or what one can argue.
Also, even though discussion-oriented committees may make it very clear that they do not make decisions or give advice, professionals and patients alike tend to see only the title of "Ethics Committee" and expect advice anyway.
The composition of ethics committees provides further food for thought. The evolving perspective is that physicians should not constitute a majority of committee members because the values and perspectives of the "medical subculture" are not necessarily those of the community and, in fact, may be radically out of step with it. Legal cases dealing with access to records and refusal to treat illustrate this only too well. However, smaller communities often do not have sufficient resources to develop broad-based committees that include lay persons, lawyers and trained ethicists, and this inevitably means that physicians will be over-represented. The analysis or advice they then provide may be out of step with that given by committees with a more diversified and representative membership.
Popular wisdom has it that a camel is a horse designed by a committee, and perhaps it is time to ask whether ethics committees are not like camels. Sometimes a camel is just what one wants -- for instance, when going through the Gobi Desert. However, a camel can also be the wrong animal.
Ethics committees are also useful tools, but only when they are appropriately constituted and function in an appropriate and professional manner. Otherwise, they become either useless or a liability.