Ethical Challenges
Frank A. Chervenak
Laurence B. McCullough
Bonnie Flood Chez
In both medicine and nursing, there is a clinically based framework for bioethics applicable to the practice of high-risk and critical care obstetrics.1,3 Some ethical crises that arise in acute clinical situations may be addressed only after they have occurred. In contrast, the concept of preventive ethics has evolved as a valuable clinical resource for anticipatory thought. Preventive ethics appreciates that the potential for ethical conflict exists in certain clinical situations and encourages the adoption of ethically justified strategies to reduce the frequency with which such conflicts occur. Preventive ethics assists clinicians to collaboratively establish a framework for clinical judgment and decision-making that is integral to the specialty and the patients and families it serves. This decision-making framework evolves from defining:
the fundamental ethical principles of medicine and nursing, such as beneficence and respect for autonomy;
how these two principles should interact in obstetric judgment and practice, with emphasis on the core concept of the fetus as a patient;
different concepts of the ethical principles of justice; and
ethical issues in responsible resource management that emphasize the virtues of health care professionals.
Medical Ethics and Nursing Ethics
Medical and nursing ethics involves the disciplined study of morality in the respective professions. Professional morality concerns the obligations of physicians, nurses, and health care organizations, within any given area of specialty care, and the patients and families served. It also includes the reciprocal obligations placed on patients and families.4 Like any other social skill or knowledge, morality evolves by learning from the examples of those around us, so it is important not to confuse medical and nursing ethics with the many sources of morality in a pluralistic society. These include, but are not limited to: law, our political heritage as a free people in the United States, the world’s religions (all of which can be found in the U.S.), ethnic and cultural traditions, families, the traditions and practices of medicine and nursing (including education and training), and personal experience. Medical ethics, since the eighteenth century European and American Enlightenments, has been secular.5 It makes no reference to God or revealed tradition, but to what rational discourse requires and produces. At the same time, secular medical ethics is not intrinsically hostile to religious beliefs. Therefore, ethical principles and virtues should be understood to apply to all clinicians, regardless of their personal religious and spiritual beliefs.6 Since the emergence of nursing as a profession in the nineteenth century, nursing ethics, too, has been understood to be secular in nature.
The traditions and practices of medicine and nursing constitute an obvious source of morality for physicians and nurses because they are based on the obligation to protect and promote the health-related interests of the patient. This obligation defines for physicians and nurses what morality in medicine ought to be, but in very general, abstract terms. Providing a more concrete, clinically applicable account of that obligation is the central task of medical and nursing ethics, using ethical principles that guide decision-making and behavior in the clinical setting.4
Beneficence
The principle of beneficence requires that clinicians “do good.” Its application requires one to act in a way that
is expected reliably to produce the greater balance of benefit over harm in the lives of others.6 To put this principle into clinical practice requires a reliable account of the benefit and harm relevant to the patient’s care. In obstetrics, the definition of “patient” may include the pregnant woman and also the fetus. Further, what is good for the pregnant woman may not always be good for the fetus. For example, treatment of a pregnant woman’s illness may require medications that are potentially harmful to the fetus, yet delaying treatment may seriously harm the pregnant woman. Overall, benefits and harms should be reasonably balanced against each other when not all of them can be achieved in a particular clinical situation, such as a maternal request for an elective Cesarean delivery.7
is expected reliably to produce the greater balance of benefit over harm in the lives of others.6 To put this principle into clinical practice requires a reliable account of the benefit and harm relevant to the patient’s care. In obstetrics, the definition of “patient” may include the pregnant woman and also the fetus. Further, what is good for the pregnant woman may not always be good for the fetus. For example, treatment of a pregnant woman’s illness may require medications that are potentially harmful to the fetus, yet delaying treatment may seriously harm the pregnant woman. Overall, benefits and harms should be reasonably balanced against each other when not all of them can be achieved in a particular clinical situation, such as a maternal request for an elective Cesarean delivery.7
Beneficence-based clinical judgment has an ancient pedigree, with its first expression found in the Hippocratic Oath and accompanying texts.8 It makes an important claim: to interpret reliably the health-related interests of the patient from the perspective of the health care professions. This perspective is provided by accumulated scientific research, clinical experience, and reasoned responses to uncertainty.9 Rigorous evidence-based, beneficence-based judgment does not emanate from the individual clinical perspective of any particular physician or nurse. It should not be based merely on the clinical impression or intuition of an individual clinician. Rather, the clinical benefits that can be achieved for the patient in practice are grounded in the competencies of medicine and nursing. Benefits include the fact that physicians and nurses are competent to seek for patients the prevention/management of: disease, injury, or handicap; unnecessary pain and suffering; and premature or unnecessary death. Pain and suffering become unnecessary when they do not result in the achievement of other benefits of medical care (e.g., allowing a woman to labor without effective analgesia).4
A related term, nonmaleficence, means that health care practitioners should also prevent causing harm and is best understood as expressing the limits of beneficence. This is also known as “Primum non nocere” or “first, do no harm.” This commonly invoked dogma is really a Latinized misinterpretation of the Hippocratic texts, which emphasized beneficence while avoiding harm when approaching the limits of medicine.4 Nonmaleficence should be incorporated into beneficence-based clinical judgment when the physician or nurse approaches the limits of beneficence-based clinical judgment. In other words, when the evidence for expected benefit decreases and the risks of clinical harm increase, then the clinician should proceed with great caution. This becomes an especially important clinical ethical consideration in critical-care obstetrics when the patient is gravely ill. For example, the use of advanced technology for the intended purpose of extending and saving life is considered to be good; however, when this technology merely prolongs dying or when quality of life is poor, a controversy between beneficence and nonmalficence occurs. In these situations, the physician and nurse should be especially concerned to prevent serious, far-reaching, and irreversible clinical harm to the patient.
It is important to note that there is an inherent risk of paternalism in beneficence-based clinical judgment. Paternalism overlooks any individual’s potential for self-determination. In other words, beneficence-based clinical judgment, if it is mistakenly considered to be the sole source of moral responsibility and therefore moral authority in medical care, invites the unwary physician or nurse to conclude that beneficence-based judgments can be imposed on the patient in violation of her autonomy. Paternalism is a dehumanizing response to the patient and, therefore, should be avoided in the practice of high-risk and critical care obstetrics.
The preventive ethics response to this inherent paternalism is for the physician to explain the diagnostic, therapeutic, and prognostic reasoning that leads to his or her clinical judgment about what is in the interest of the patient so that the patient can assess that judgment for herself. This general rule can be put into clinical practice in the following way: The physician should disclose and explain to the patient the major factors of this reasoning process, including matters of uncertainty. In neither medical law nor medical ethics does this require that the patient be provided with a complete medical education.10 The physician should then explain how and why other clinicians might reasonably differ from his or her clinical judgment. The outcome of this process is that beneficence-based clinical judgments take on a rigor that they sometimes lack, and the process of their formulation includes explaining them to the patient. Awareness of this feature of beneficence-based clinical judgment provides an important preventive ethics antidote to paternalism by increasing the likelihood that one or more of these medically reasonable, evidence-based alternatives will be acceptable to the patient. This feature of beneficence-based clinical judgment also provides a preventive ethics antidote to “gag” rules that restrict physicians’ communications with the managed care patient.11 All beneficence-based alternatives must be identified and explained to all patients, regardless of how the physician is paid, especially those who are well established in evidence-based obstetrics and gynecology.
Nurses have an especially important role to play in collaboration with their physician colleagues before, during, and after information is presented. Knowing what has been discussed with the patient and family provides a unique follow-up opportunity for communication among clinicians, should the patient or family
express a lack of understanding and the need for further explanation.
express a lack of understanding and the need for further explanation.
One advantage in carrying out this approach to communication is the increased likelihood of compliance.12 Another advantage is that the patient is provided a better-informed opportunity from which to make a decision about whether to seek a second opinion. This approach should make such a decision less threatening to the clinician who has already shared with the patient the limitations on clinical judgment.
Respect for Autonomy
In contrast to the principle of beneficence, there has been increasing emphasis in the medical and nursing ethics literature on the principle of respect for autonomy.6 This principle requires one always to acknowledge and carry out the value-based preferences of an adult, competent patient, unless there is compelling ethical justification for not doing so (e.g., prescribing antibiotics for viral respiratory infections). The pregnant patient increasingly brings to her medical care her own perspective on what is in her best interest. Because each patient’s perspective on her best interests is a function of her values and beliefs, it is impossible to specify the benefits and harms of autonomy-based clinical judgment in advance. Indeed, it would be inappropriate for the clinician to do so, because the definition of her benefits and harms and their balancing are the prerogative of the patient. Not surprisingly, autonomy-based clinical judgment is strongly antipaternalistic in nature.4
To understand the moral demands of this principle, three sequential autonomy-based patient behaviors are most relevant to clinical practice, including:
absorbing and retaining information about her condition and the alternative diagnostic and therapeutic responses to it;
understanding the information (i.e., evaluating and rank-ordering those responses and appreciating that she could experience the risks of treatment); and
expressing a value-based preference.
The physician and nurse have important roles to play in each of these. They are, respectively:
to recognize the capacity of each patient to deal with medical information (and not to underestimate or overestimate that capacity);
to provide information (i.e., disclose and explain all medically reasonable alternatives), recognizing the validity of the patient’s values and beliefs;
to assist the patient in her evaluation and ranking of diagnostic and therapeutic alternatives for managing her condition; and
to elicit and implement the patient’s value-based preference without interference.4
Respect for autonomy is inherent in the doctrine of informed consent. The legal obligations of the physician regarding informed consent were established in a series of cases during the twentieth century. In 1914, Schloendorff v The Society of The New York Hospital established the concept of simple consent (i.e., whether the patient says “yes” or “no” to medical intervention).10,13 To this day, in the medical and bioethics literature, this decision is quoted: “Every human being of adult years and sound mind has the right to determine what shall be done with his body, and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.”13 The legal requirement of consent further evolved to include disclosure of information sufficient to enable patients to make informed decisions about whether to say “yes” or “no” to medical intervention.10
There are two accepted legal standards for such disclosure. The professional community standard defines adequate disclosure in the context of what the relevantly trained and experienced clinician tells patients. The reasonable person standard, which has been adopted by most states, goes further and requires the physician to disclose “material” information defined as: what any individual in the patient’s condition needs to know and what the layperson of average sophistication should not be expected to know. Patients need to know what the physician thinks is clinically salient (i.e., the physician’s beneficence-based clinical judgment). This reasonable person principle has emerged as the ethical standard. As such, the physician should disclose to the patient her or the fetus’s diagnosis (including differential diagnosis when that is all that is known), the medically reasonable alternatives to diagnose and manage the patient’s condition, and the short-term and long-term benefits and risks of each alternative. In contrast, the nurse’s responsibility is to verify that the signature of each individual granting consent belongs to the person who signs the consent documents. In addition, if the patient expresses additional questions related to the physician-provided informed consent, the nurse is responsible for notifying the physician of the patient’s questions and concerns.
Advance Directives
A particularly important dimension of informed consent in clinical practice involves what has come to be known as an advance directive.14 Spurred by the famous case of Karen Quinlan in New Jersey in 1976, all states have enacted advance directive legislation.15,16 Advance directives play a major role in respect for the autonomy of critically ill pregnant women in end-stage disease.
The basic idea of an advance directive is that an autonomous patient can make decisions regarding her medical management in advance of a time when she might become incapable of making health care decisions. The relevant ethical dimensions of autonomy are presented in Box 3-1.
Box 3-1. Ethical Dimensions of Autonomy
A patient may exercise her autonomy now in the form of a request for or refusal of life-prolonging interventions.
An autonomy-based request or refusal, expressed in the past and left unchanged, remains in effect for any future time during which the patient is determined to be without autonomy.
A past autonomy-based request for or refusal of life-prolonging interventions should therefore translate into physician and nurse obligations at the time the patient becomes unable to participate in the informed consent process. In particular, refusal of life-prolonging therapeutic intervention should translate into the withholding or withdrawal of such interventions, including artificial nutrition and hydration.
Living Will.
The living will or directive to clinicians is an instrument that permits the patient to make a direct decision, usually to refuse life-prolonging medical intervention in the future. The living will becomes effective when the patient is considered to be “qualified,” usually terminally or irreversibly ill, and is not able to participate in the informed consent process as judged by her attending physician. Court review is not required. Obviously, terminally or irreversibly ill patients who are able to participate in the informed consent process retain their autonomy to make their own decisions. Some states prescribe the wording of the living will, and others do not. The reader should become familiar with the legal requirements in the applicable jurisdiction. A living will, to be useful and effective, should be as explicit as possible. The reader should become familiar with hospital policies on advance directives, which should reflect and implement applicable law. Such policies also play the crucial role of assuring physicians and nurses that the organization will support them when they implement such policies.
Power of Attorney for Health Care.
The concept of a durable power of attorney or medical power of attorney is that any autonomous adult, in the event that the person later becomes unable to participate in the informed consent process, can assign decision-making authority to another person. The advantage of the durable power of attorney for health care is that it applies only when the patient has lost decision-making capacity, as judged by her physician. Court review is not required. It does not, as does the living will, also require that the patient be terminally or irreversibly ill. However, unlike the living will, the durable power of attorney does not necessarily provide explicit direction, only the explicit assignment of decision-making authority to an identified individual or “agent.” Obviously, any patient who assigns durable power of attorney for health care to someone else has an interest in communicating her values, beliefs, and preferences to that person. In order to protect the patient’s autonomy, the physician and nurse can and should play an active role in encouraging this communication process so that there will be minimal doubt about whether the person holding durable power of attorney is faithfully representing the wishes of the patient.
The main clinical advantages of these two forms of advance directives are that they encourage patients to think carefully in advance about their request for or refusal of medical intervention and help to prevent ethical conflicts and crises in the management of terminally or irreversibly ill patients who have decision-making capacity. Unfortunately, the use of advance directives is not as widespread as it should be.17 The reader is encouraged to think of advance directives as powerful, practical strategies for preventive ethics for end-of-life care, and to encourage patients to consider them seriously, especially obstetric patients who may require admission to a critical care unit during or after pregnancy. The use of advance directives prevents the experience of increased burden of decision making in the absence of reliable information about the patient’s values and beliefs.18
Futility
An especially important and related ethical issue concerns clinical judgments of futility. Patients or their family members sometimes request or even demand inappropriate management.19,20 This does not necessarily relieve physicians and nurses from an ethical duty to advocate for treatment that has been recommended clinically. A preventive ethics strategy may guide clinicians in formulating a response by ascertaining a patient’s answers to selected questions. 21 A list of potentially helpful questions is presented in Table 3-1.
Beneficence and Respect for Autonomy: Interaction in Clinical Practice
The ethical principles of beneficence and respect for autonomy play a more complex role in obstetric clinical judgment and practice. There are obviously beneficence-based and autonomy-based obligations to the pregnant patient. One is the physician’s and nurse’s clinical
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