The contemporary institutional ethics committee is not a direct-line descendant of any single progenitor but rather evolved over the last several decades in the context of several concurrent traditions.¹ With the development of chronic hemodialysis in the 1960s, multidisciplinary hospital committees were impaneled to select which patients should receive it.² In 1971, the preamble of the Medico-Moral Guide of the Canadian Catholic bishops recommended the establishment of “medical-moral committees” in all Catholic hospitals and other health facilities. These committees were charged with educating hospital personnel about medical-moral problems. They served as a forum to interpret Roman Catholic religious doctrines in the context of patient care, to write hospital policies that reflected Catholic teachings, and to communicate these policies to the hospital staff. Medical-moral committees were multidisciplinary in composition, with representatives from all hospital services relevant to inpatient care.³

In a law review article in 1975, Karen Teel suggested that all hospitals should form similar but secular multidisciplinary ethics committees to help advise physicians about clinical-ethical issues arising in their care of patients.⁴ The following year, the Quinlan court in New Jersey formally adopted this suggestion in its influential ruling. The Quinlan court enlarged Teel’s proposed scope of the committee’s role to include confirming the prognosis of critically ill patients, assisting physicians and families in the resolution of ethical dilemmas involving hospitalized patients, and acting generally as would a court of law to protect patients’ rights and interests.⁵ Subsequently, and with relatively few exceptions, other high courts have asserted
that a properly functioning hospital ethics committee could replace much of the need for routine judicial review of controversial cases.⁶

In the mid-l970s, several hospitals impaneled “prognosis committees” when it became recognized that establishing the prognosis of severely ill patients was a prerequisite to ethical decision making about their care. The most well known and longest functioning prognosis committee was the Optimum Care Committee of the Massachusetts General Hospital.⁷ Attending physicians consulted this committee for assistance with ethically troubling cases. Its mission was to clarify prognosis, facilitate communication, re-establish treatment objectives, and maximize the support of physicians authorized to make difficult treatment decisions. Some prognosis committees subsequently evolved into IECs, while others, such as in New Jersey under the influence of Quinlan, have remained oriented to establishing the prognosis of critically ill patients.

The 1982 and 1983 reports of the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research further consolidated the role and value of IECs. The Commission not only opined that IECs were justified, it also suggested that their more widespread implementation could lessen the need of referring clinical-ethical dilemmas involving hospitalized patients to courts for judicial review.⁸ The Commission argued that a properly functioning IEC, like a court of law, could provide standardized procedures and multidisciplinary impartial oversight of decisions that would protect patients’ rights and interests.

Subsequently, a number of professional societies, including the American Medical Association, the American Hospital Association, the American Academy of Pediatrics, the American Academy of Neurology, and the New York State Task Force on Life and the Law endorsed the formation of IECs in hospitals.⁹ In 1987, Maryland became the first state to require that all hospitals establish patient care advisory committees, whose role was essentially identical to those of the IEC.¹⁰ A 1992 New Jersey law for hospital licensing required the presence of an ethics or prognosis committee.¹¹ The Maryland Health-Care Decisions Act required that conflicts or disagreements among family members of similar authority over decisions to terminate life-sustaining treatment of patients must be referred to the hospital’s IEC.¹²

Since 1991, the standards of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) have made the presence of an IEC or similar body essentially mandatory in American hospitals and nursing homes. The JCAHO standards require that all health-care facilities have in place a “mechanism” to ensure “rights of patients and organizational ethics.” These rights and ethical standards include formulating advance directives, determining when to withhold resuscitative services and withdraw life-sustaining treatment, deciding what care and treatment are appropriate at the end of life, providing informed consent, and resolving conflicts in treatment decisions.¹³ Although the JCAHO does not mandate how this mechanism must be accomplished, most hospitals have chosen to fulfill it by impaneling IECs.

Ethics committees proliferated during the 1980s. A 1983 survey performed for the President’s Commission to determine the prevalence of IECs found that they were functioning in only 4.3% of the hospitals with greater than 200 beds and in no hospitals with fewer than 200 beds.¹⁴ A 1987 survey showed that 60% of American hospitals had IECs.¹⁵ Community surveys in the early 1990s estimated the number of hospitals with IECs to be in the 65% to 85% range,¹⁶ although one large survey in 1992 by the American Hospital Association found IECs in only 51% of the nearly 6,000 surveyed hospitals.¹⁷ A 1992 survey of hospitals in the U.S. Department of Veterans Affairs disclosed that about 90% had IECs.¹⁸ The most recent and comprehensive survey sampled 600 hospitals in the United States. Ethics consultation services operated in 81% of all hospitals and in 100% of hospitals with more than 400 beds.¹⁹

A common pattern for the ontogeny of an IEC is for interested hospital staff members to form a clinical ethics study group. After a few years of self-study, the group assumes the responsibility for educating other hospital staff members on clinical-ethical issues. The hospital administration may then authorize the group as an official IEC and request that
the newly formed IEC review hospital policies on clinical-ethical issues and make recommended improvements. In its most productive stage, the IEC reviews clinical-ethical dilemmas of hospitalized patients on request. Expert members of the group can provide requested on-site clinical ethics consultations.

Many mature IECs have experienced a “midlife crisis” in which their previous functions and directions have been questioned and their future role debated. Some midlife committees lost the clear direction they previously followed and found themselves performing fewer clinical consultations than they did in earlier stages of development.²⁰ The departure of energetic founding members is one explanation. Secondly, once hospital staff members have become educated and more sophisticated about clinical ethics practices, demand diminishes for the simpler consultations. Lastly, many non-IEC hospital staff members, particularly nurses and social workers, have become more knowledgeable about clinical ethics as a result of the Patient Self-Determination Act (PSDA) of 1990 and the rise of the clinical ethics movement. The mature stage and ultimate fate of the IEC remain to be determined.

The essential feature of the IEC is its multidisciplinary composition, as originally suggested by the Quinlan court.²¹ In theory, a multidisciplinary committee cannot easily be dominated by the parochial interests of a single physician, another professional, or a service. A functioning multidisciplinary process permits the committee to represent the broad interests of the hospitalized patient properly, as each professional member and represented service contributes a unique perspective to help define the totality of the patient’s interests. A balanced, multidisciplinary IEC also has the greatest chance of achieving a functioning democratic process.

Ethics committees are multidisciplinary in two dimensions: professional training and hospital service. Most committees are composed of at least a physician, nurse, chaplain, social worker, patient advocate, administrator, and lawyer. It is useful to have professional members representing hospital services in which ethical problems commonly arise, including intensive care, emergency room, operating room, psychiatry, neurology, pediatrics, quality assurance, and risk management. Most committees restrict the participation of the hospital counsel to an advisory role, recognizing the potential conflict between the lawyer’s duty to protect the institution and medical staff and the committee’s interest in protecting the patient.²² It is desirable for the IEC to have access to the services of a professional with training in clinical ethics or moral philosophy. One study found that the moral reasoning of philosophers and theologians serving as medical ethicists was more sophisticated than the moral reasoning of physicians²³ but others have found that the moral reasoning of an ordinary IEC member is no better than that of an average person.²⁴ Many committees also contain non-staff lay members who represent the community and its values.²⁵ Active participation of the lay member helps diminish the tendency for the committee to orient its interests in favor of the hospital.

Within the institutional bureaucracy, the IEC may be placed under the medical staff or under the hospital administration, depending on the purpose of the committee. Committees functioning under the direction of the medical staff may be less threatening to physicians and hence more easily accepted by the medical staff. Such committees may more easily fulfill a consultation role. Further, their case consultations and minutes may be shielded to a greater extent by peer review protection statutes. As a result, however, such committees tend to be dominated by physicians and may lack true multidisciplinary composition and functioning. Committees functioning under the hospital administration are less likely to be dominated by physicians, but they run the risk that the hospital’s interests may be considered over those of patients in those rare situations in which the two interests conflict. Another choice is for the committee to bypass hospital administration and report directly to the hospital Board of Trustees.²⁶

The optimal size of the IEC varies with the function and size of the institution. Small
hospitals or nursing homes may have IECs with 6 to 12 members; larger institutions may have up to 25 members. It is desirable for the members to function as a team under the leadership of a chairperson skilled at maintaining order, focus, and egalitarianism. Small and rural hospital IECs have unique characteristics and practical problems resulting from their small size and isolation.²⁷ The prevalence, activities, and types of case consultations of IECs within nursing homes have been surveyed.²⁸

Most IECs have closed meetings to maximize patient confidentiality and foster the development of a close working relationship of members. When specific clinical cases are discussed, patients and their families ideally should have access to the committee, but many committees do not offer this service. Most committees record minutes. Advantages of recording the minutes include enhanced member and IEC accountability, the creation of a useful teaching resource, and a reduction of the opportunity for subsequent misunderstanding. However, the issue of IEC members’ legal liability can be affected both positively and negatively if minutes are recorded.²⁹ In our hospital, IEC minutes containing clinical consultation reports and summaries of discussion are considered quality improvement documents and thereby shielded from legal discovery under the state peer review protection statute.

Surveys have shown that most IECs execute three principal functions: education, policy review and development, and clinical consultation and case review.³⁰ Many mature committees, like that which I chair, have appointed three working subcommittees, each staffed and dedicated to fulfilling one of these three functions. Some committees that report to the facility’s administration have been assigned clinical ethics quality assurance as a fourth role.

The potential benefit of having an IEC perform clinical consultations is that the education of the requesting physician and staff about the scope of ethically acceptable treatment alternatives may help safeguard the interests of the patient and lead to improved patient care. The potential risk of IEC clinical involvement is that the physician may abdicate decision-making responsibility to a distant
committee that lacks accountability, and create a circumstance that may result in poorer patient care.⁴⁷ The ultimate balance of these two opposing effects will determine the justification of the continued involvement of ethics committees in clinical consultations.⁴⁸

To prevent an unaccountable IEC from usurping a physician’s decision-making responsibility, the precise role of the IEC must be restricted specifically to exclude the primary responsibility for making decisions concerning a patient’s care. Committees should be conducted solely as advisory groups to help educate medical and hospital staff members and thereby increase the breadth of available treatment options for the patient. By reviewing the decision-making details of cases, committees also can function in an oversight capacity to assure that patients’ rights are protected.

Committee proceedings should not produce independent patient care decisions. At all times, the responsibility for making decisions concerning patient care must rest with the attending physician of record. If the IEC chooses to make a treatment recommendation, the attending physician should treat the advice like that of any other consultant. She can choose to follow it or ignore it, depending on her judgment of what is best for the patient.⁴⁹

The major value of the IEC is in its process and not necessarily in its product.⁵⁰ In many instances, the committee’s chief benefit will have been accomplished simply because the principals in a difficult case were afforded the opportunity to sit down together, jointly hear the patient’s diagnosis, prognosis, treatment options, and treatment preferences, and discuss the ethical and care issues calmly and rationally. Facilitating this discussion is an important role of the IEC because the patient’s interests are further protected by the development of consensus resulting from improved staff communication.

Committees require accurate clinical information to debate ethical issues properly. One limitation of some IECs is their near total reliance on secondhand information presented by physicians, nurses, social workers, and others. Secondhand information may be inaccurate, vague, and misleading. Committees should secure primary information sources by interviewing the principals directly and reviewing the medical record and other documents to obtain correct and current information before analyzing and debating the ethical issues. Clinical ethics consultants (discussed later) optimally fill this role.

Committees should attempt to minimize the interpersonal problems inherent in any committee activity. A common pitfall is “groupthink,” the tendency of well meaning but conflict-averse committee members to reach a consensus before important areas of disagreement have been identified and honestly resolved. Groupthink can produce an overwhelming desire to achieve consensus and thereby act to prematurely terminate discussion of alternative viewpoints and conflicting data. Groupthink can hurt the patient if it causes the IEC to fail to consider certain potentially beneficial options carefully.⁵¹

The IEC usually cannot recapitulate the complete impartiality of judicial review. The professionals serving on the committee often are colleagues or friends of physicians and others bringing cases before the committee. These pre-existing relationships may color the objectivity of committee members and affect the outcome of the discussion. Moreover, physician colleagues often think alike, as a consequence of training. Committee members should try to remain impartial and focus on maintaining the patient’s rights and best interests.

Another interpersonal problem is the tendency for unassertive committee members to be influenced unduly by strong and persuasive members. Department chairpersons and other influential and strong-willed members may carry their aura of authority with them into the committee meeting. They may intimidate more junior members, stifle dissenting opinion, and diminish democratic process. Lawyers can dominate the committee by overemphasizing concern for liability and other legal issues, misdirecting the committee’s emphasis away from the patient’s welfare to a preoccupation with legal considerations or hospital interests. Robert Weir has cautioned appropriately that IECs should remain “ethical advisors” and not become “legal watchdogs.”⁵²

If IECs are to succeed in a clinical consultative role, patients and families must be guaranteed
proper access to them. Committees should not be restricted for use solely by physicians. Patients and families should be allowed to trigger consultations and discuss their concerns with the committee. Similarly, IEC proceedings should be available to all parties involved in the case.⁵³

Many people believe and several courts have ruled that properly functioning ethics committees can serve as local and more accessible substitutes for formal judicial review. The success rates of committees vary in this capacity. Even in those IECs best fulfilling their duty to recapitulate impartial judicial review, there remain three unresolved medicolegal questions. First, in which instances should IECs urge the referral of a case to court for formal judicial review? Second, in their rulings, how do courts consider the findings and conclusions of an IEC? Third, what is the professional liability of an IEC member faithfully discharging her responsibilities as a member of the hospital staff?

Ethics committees can supplant formal judicial review in many but not all cases. Committees should recommend that clinicians refer cases for judicial review in four general circumstances. First is the incompetent patient with no legally authorized surrogate about whom there is an irreconcilable conflict between family decision makers regarding the kind and level of proposed treatment. A judge can appoint a legally authorized surrogate from the family or a guardian ad litem, thereby protecting the patient and secondarily protecting the physician and institution from having disgruntled family members take legal action. Second are those rare instances where there is an intractable conflict between what is in the best interest of the patient and what is in the best interest of the institution. Third, when there is objective evidence that, because of conflicts of interest, the surrogate decision maker is not deciding in the patient’s best interests, the court should be asked to appoint a new surrogate. Fourth, when there is neither a surrogate decision maker nor an advance directive to guide the physician, and hospital policy and state law fail to provide an alternative remedy, a formal guardian ad litem should be appointed by the court.⁵⁴

Courts have varied on how they weigh the findings and conclusions of IECs. The Quinlan court believed that the IEC could be an effective substitute for judicial review. However, in the more recent case of In re L.H.R., the highest court in Georgia ignored the recommendation of the IEC. At issue was whether a child in a persistent vegetative state with no hope of recovery could be removed from the ventilator. Such a treatment plan was agreed to by the parents, physicians, guardian ad litem, and IEC. The L.H.R. court ruled that IECs were unnecessary in such cases and their recommendations irrelevant.⁵⁵ One justification the court cited for ignoring the findings of the IEC was the committee’s lack of procedural rigor, in comparison with formal judicial process.

In two other jurisdictions, IEC findings and recommendations have been cited and used as evidence. In In re Torres, the findings of three IECs were relied on in the court’s finding that a comatose man could be removed from a ventilator. More than one IEC reviewed the case because the patient had become comatose while in one hospital but was transferred to other hospitals. The Torres court ruled that IECs “are uniquely suited to provide guidance to physicians, families, and guardians when ethical dilemmas arise.” In two Massachusetts Supreme Judicial Court cases, Saikewicz and Spring, the courts rejected the idea that ethics committees were an adequate substitute for judicial review but permitted the consideration of ethics committee views as valid findings during judicial review.⁵⁶

Susan Wolf pointed out that courts should seriously consider the proceedings of an IEC only if the committee has followed a properly executed due process in handling the ethics consultation. Without developing such a theory of process, members of IECs would lack accountability and responsibility for their actions and conclusions, and insufficient patient care could result. The committee’s theory of process should be patient-centered and complement the substantive, patient-centered ethical principles and values the IEC embraces.⁵⁷

The professional liability of an IEC member is small but real. Institutional employees serving
as IEC members usually are indemnified by their institution for professional liability arising from their service. Lay members from the community probably should ascertain their indemnification as well. There is reason to believe that professional liability for IEC members is minimal because the committee serves only in an advisory capacity and the members strive to represent the best interests of the patient from each of their professional perspectives. Nevertheless, ethics committee members are held to standards of professional competence and behavior and potentially can be liable for negligence.⁵⁸

Some scholars have advocated providing IEC members with immunity from civil and criminal liability. Such immunity would be granted on the basis that IEC members are acting in good faith within the established rules of the hospital. Further, like hospital peer review committees, IECs may feel that their members require immunity in order to function properly. If blanket immunity is given, however, the accountability of IEC members risks being diminished. I am in agreement with those who believe that blanket immunity should not be granted to IEC members because each member should maintain proper accountability for her actions and conclusions.⁵⁹

I am aware of only a single case of a patient who sued an IEC. Elizabeth Bouvia, a young woman with severely debilitating cerebral palsy who was totally and permanently dependent on others for her daily care, refused further oral, enteral, and parenteral hydration and nutrition when hospitalized. She stated that she wished to die in order to escape a life of unmitigated misery. Her physician overruled her refusal of treatment and ordered her to be forcibly fed. In 1986, Ms. Bouvia sued her physician and hospital to reverse this action. She also sued the hospital ethics committee for concurring with her physician’s treatment plan but the suit was dropped in 1990.⁶⁰

Albert Jonsen and colleagues initially proposed that an infant care review committee (ICRC) or infant bioethics committee should function as a mechanism to improve medical decision making when ethical issues arise in the care of severely ill neonates. The ICRC subsequently was endorsed by the American Academy of Pediatrics and the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Now ICRCs are mandated by legislation accompanying the “Baby Doe” regulations and by the Joint Commission on Accreditation of Healthcare Organizations.⁶¹ The ICRC has a role and function almost identical to that of the IEC, except that the oversight role of the ICRC is restricted to the optimum care of the hospitalized infant.

Some scholars have emphasized the distinction between the ICRC mandated by the “Baby Doe” regulations and the infant bioethics committee recommended by both the President’s Commission and the American Academy of Pediatrics. The former must convene within 24 hours of a disagreement between the infant’s family and the physician concerning termination of life-sustaining therapy. Some scholars feel that the ICRC, unlike the infant bioethics committee, is not primarily concerned about the ethics of the situation.⁶² However, because most institutions have only one committee serving both functions, this distinction usually is irrelevant in practice. Therefore, I refer to both committees as ICRCs.