Scofield, G. R., “What Is Medical Ethics Consultation?” Journal of Law, Medicine & Ethics 36, no. 1 (2008): 95–118.CrossRefGoogle Scholar

Scofield's expression, “medical ethics consultation,” is a misnomer. It is not standard usage in the field because it seems to define clinical ethics consultation as the prerogative of medical practitioners, i.e., of physicians and surgeons. Given the multidisciplinary nature of hospital ethics committees and the multidisciplinary background of clinical ethics consultants — many of whom, like Scofield, have backgrounds in law, or religion — a more appropriate description, and the characterization that is standard throughout the literature, is “clinical ethics consultation” or simply “ethics consultation.”Some definitional clarifications: By “bioethics” I mean the multidisciplinary field whose members are united by the common purpose of analyzing, researching, studying, and/or attempting to address, mediate, and/or offer solutions, or resolutions to ethical problems arising in biomedical science and healthcare. The term “bioethics” (first published use, 1971) encapsulates a paradigm shift from the older paradigm/conception/discourse of “medical ethics.” The expression “medical ethics,” initially a neologism, was first formally articulated by a British physician, Thomas Percival (1740–1804), in his eponymous work Medical Ethics (Percival, T., Medical Ethics: Or a Code of Institutes and Precepts, Adapted to the Professional Conduct of Physicians and Surgeons [London: J. Johnson & R. Bickerstaff, 1803]). Percival conceived of medical ethics as the self-regulatory ethics of professional physicians and surgeons, governing their own conduct and their relations with their peers, their profession, their patients, and the public. From Percival to the present day, medical ethics and its discourses always privileged professional medical perspectives.Google Scholar

In striking contrast to medical ethics, bioethics is a multidisciplinary field addressing ethical issues in the biomedical sciences, as well as in health care, without privileging physicians' (or scientists') conceptions or discourses — hence bioethicists' insistence on a non-professional presence on hospital ethics committees and their emphasis on concepts like autonomy and respect for persons as a counterweight to professional authority. The multidisciplinary nature and anti-elitist stance endemic to bioethics creates significant challenges to the professionalization process and is a factor in the cautious approach bioethics organizations have taken towards professionalization.Google Scholar

See Scofield, , supra note 1, at 100.Google Scholar

Id., at 100.Google Scholar

Id., at 96.Google Scholar

Id., at 106.Google Scholar

Id., at 108Google Scholar

Id., at 109.Google Scholar

Id., at 110.Google Scholar

Licensure is neither a necessary nor a sufficient condition for professionalization. Medicine was and is recognized as a profession even in jurisdictions that did not or do not require licensure, and occupations requiring licensing, from barbers and beauticians to contractors, electricians and realtors, are not deemed professions because they do not self-regulate in the name of some public good. For a discussion of the development of codes of ethics in professions, see Baker, R., “Codes of Ethics: Some History,” Perspectives on the Professions 19, no. 1 (2000): 3–6, at the Center for the Study of Ethics in the Professions at IIT, available at <http://ethics.iit.edu/perspective/pers19_1fall99_2.html> (last visited December 1, 2008); see also Baker, R., “A Draft Model Aggregated Code of Ethics for Bioethicists,” American Journal of Bioethics 5, no. 5 (2005): 33–41.Google Scholar

The ASBH represents bioethics, which is a multidisciplinary field. Most members self-identify with more than one field: Approximately 4 in 10 self-identify with medicine; 3 in 10 with philosophy; between 1.2 and 1.5 in 10 with humanities, religion, public health, law, and nursing. Baker, R. Pearlman, R. Taylor, H. Kipnis, K., Report and Recommendations of the ASBH Advisory Committee on Ethics Standards, American Society for Bioethics and the Humanities, 2006, at Tables 2.3, 2.7, available at <http://www.asbh.org/membership/protected/pdfs/acesrprt.pdf> (last visited December 1, 2008). Only four of these fields — medicine, law, public health, and nursing — have national societies professionalized to the extent of offering codes of ethics. Of these, the longest professionalized are in medicine (AMA) and law (ABA). These fields were chosen as the comparison against which to measure the progress of the ASBH. Center for the Study of Ethics in the Professions, “Codes of Ethics On-line,” Institute of Technology, Chicago, available at <http://ethics.iit.edu/codes/codes_index.html> (last visited December 8, 2008).Google Scholar

American Bar Association, “Preface,” Model Rules of Professional Responsibility, 2000, available at <http://www.aba-net.org/cpr/mrpc/preface.html> (last visited December 3 2008).+(last+visited+December+3+2008).>Google Scholar

Baker, R., “The Historical Context of the American Medical Association's 1847 Code of Ethics,” in Baker, R, ed., The Codification of Medical Morality: Volume Two: Anglo-American Medical Ethics and Medical Jurisprudence in the Nineteenth Century (Dordrecht, Netherlands: Kluwer Academic Publishers, 1995): 47–63.Google Scholar

Davis, N., History of Medicine, with the Code of Medical Ethics (Chicago: Cleveland Press, 1903): 142–143.Google Scholar

“On examining a great number of codes of ethics adopted by different societies in the United States, it was found that they were all based on that by Dr. Percival, and that the phrases of this writer were preserved, to a considerable extent, in all of them. Believing that language that had been so often examined and adopted, must possess the greatest of merits for a document such as the present, clearness and precision, and having no ambition for the honors of authorship, the Committee which prepared this code have followed a similar course, and have carefully preserved the words of Percival wherever they convey the precepts it is wished to inculcate. A few of the sections are in the words of the late Dr. Rush, and one or two sentences are from other writers. But in all cases, wherever it was thought that the language could be made more explicit by changing a word, or even a part of a sentence, this has been unhesitatingly done; and thus there are but few sections which have not undergone some modification; while, for the language of many, and for the arrangement of the whole, the Committee must be held exclusively responsible.” Hays, I., “Note to 1847 Convention,” in Baker, R. Caplan, A. L. Emanuel, L. L. Latham, S. R., eds., The American Medical Ethics Revolution (Baltimore: Johns Hopkins University Press, 1999): at 315.Google Scholar

The Code of Ethics adopted by the Alabama Bar Association in 1887 was adapted from Professional Ethics (1854) by Judge George Sharswood (1810–1883) and from A Course of Legal Study, a textbook published in 1836 by David Hoffman (1784–1854). See American Bar Association, supra note 12.Google Scholar

The ASBH was prudent not to endorse the code of ethics in the Core Competencies report. No one in bioethics was interested in a code at that time. Moreover, as a first attempt at a code, the Core Competency code was too immature to serve the needs of the field. Consider these points in turn. Immediately upon publication the Core Competency report was widely discussed in the field but the section on the code of ethics was not cited in the literature and had little impact — the field was not thinking of nor was it ready for a code of ethics. Thus, the authors of the code never sought an organizational imprimatur or sanction for it. Moreover, to turn to the second point, the code that they drafted was not conceived as a professional code for the field, but as an honor code for individuals. Thus, ethicists are portrayed as isolated practitioners whose sole guide is a sense of personal conviction. The report notes that when ethicists give “advice … against an institution's perceived … interest” which “may pose potential harms to ethics consultants' personal interests” (5.1.4, emphasis added), it is the ethicist's personal responsibility not to “shad[e] an opinion to avoid personal risk” and the individual ethicist's personal responsibility to “either take the risk or withdraw from the case” (5.1.4). Notably absent are the concepts of profession and professional responsibility. Clinical ethicists are not envisioned as members of a profession, accountable to professional peers and to the public for responsibilities delineated by their role as ethicists, but rather as solo practitioners responsible — not to the profession collectively — but to their own personal conscience. Not surprisingly, since this first code of ethics for clinical ethicists portrays the responsibilities of bioethicists entirely in terms of personal belief rather than professional responsibility, it would have been unsuitable as a code of professional ethics. The Core Competencies code is thus a step towards stage two, not a code suitable for the field of bioethics as it will emerge as a full stage three profession. American Society for Bioethics and Humanities, The Report of the American Society for Bioethics and Humanities on Core Competencies for Health Care Ethics Consultation, Glenville, Illinois, 1998.Google Scholar

Id. (American Society for Bioethics and Humanities), at 1.Google Scholar

See Scofield, , supra note 1, at 96–99.Google Scholar

Significantly, AMA physicians were able to give criteria for who was not a regular physician: “no one may be considered a regular practitioner whose practice is based on an exclusive dogma, to the rejection of the accumulated experience of the profession, and of the aids actually furnished by anatomy, physiology, pathology, and organic chemistry” (1847, Chap II Art. IV, Sec. 1l, Baker, , supra note 15, at 329). They could not explain who a “regular” practitioner was, but they knew that anyone who embraced a practice inconsistent with known medical science (like homeopaths) were not “regular” practitioners.Google Scholar

Scofield alleges that the task force was indifferent to field-wide problems.Google Scholar

Fully aware that issues such as embezzlement, sexual misconduct, and charlatanism existed in the field among its practitioners nonetheless decided that it was not the right time for it to adopt a code of ethics, to establish mandatory accreditation, certification, or licensing requirements.Google Scholar

See Scofield, supra note 1, at 106.Google Scholar

These charges are unfounded. Consider them seriatim. The charge of embezzlement rests on an anecdotal report in which an ethics committee member is alleged to have embezzled from a charitable organization (see Scofield, , supra note 1, at 105). The charge of sexual misconduct is based on the American Psychiatric Association's (APA) 1992 expulsion of the psychiatrist, Charles Culver, a well-known writer on psychiatric ethics, for violating the APA code of ethics' prohibition against having sexual relations with patients. Neither of these allegations offers evidence of abuse of the role of ethics consultant; i.e., the alleged abuses — the embezzler's violation of the law, Culver's abuse of the psychiatrist-patient relationship — were not abuses conducted by someone playing the role of clinical ethics consultant. In each case, moreover, a single allegation is held to indict the entire field of clinical ethics consultation. There was not in 1998, nor is there now, any evidence of wide-spread abuse of trust or of power on the part of clinical ethics consultants or of hospital ethics committee members.Google Scholar

Scofield's allegation of “charlatanism,” moreover, is specious on its face. No one can be charged with being a clinical ethics or bioethics “charlatan,” i.e., a pretender to competence, since the field has yet to develop standards of competence. Bioethics will be well advanced along the path of becoming a profession when it reaches the point at which some clinical ethicists can properly said to be “charlatans.”In an ironic but profound sense, charlatanism is a hallmark of professionalization.Google Scholar

See American Society for Bioethics and Humanities, supra note 17, at 29–30.Google Scholar

See Baker, , 2005, supra note 10; Baker, R., “Response to Commentators on 'A Draft Model Code of Ethics for Bioethics,” American Journal of Bioethics 5, no. 5 (2005): W12–W13; Baker, R., “A History of Codes of Ethics for Bioethicists,” in Eckenweiler, L. A. Cohn, F. G., eds., The Ethics of Bioethics: Mapping the Moral Landscape (Baltimore: Johns Hopkins University Press, 2007): 24–42; Baker, R. “Creating a Code of Ethics for Bioethicists,” in Ravitsky, V. Fiester, A. Caplan, A. L., eds., The Penn Center Guide to Bioethics (New York: Springer Publishing Company, 2008): In press; see Baker, , supra note 11.Google Scholar

American Association of University Professors, “Medical University of South Carolina Administration Backs Down,” Academe Online 85, no. 4 (1999): 6; Antommaria, A., “A Gower Maneuver: The American Society for Bioethics and Humanities' Resolution of the Taking Stands Debate,” American Journal of Bioethics 4, no. 1 (2004): W24.Google Scholar

MacDonald, C. Coughlin, M. Harrison, C. Lynch, A. Murphy, P. Rowell, M. Webster, G., Working Conditions for Bioethics in Canada, v. 8.0, Canadian Bioethics Society, 2000, available at <http://www.bioethics.ca/publications-ang.html> (site no longer active); MacDonald, C., Draft Model Code of Ethics for Bioethics, Canadian Bioethics Society, 2003, available at <http://www.bioethics.ca/publications-ang.html> (last visited December 3, 2008); Chadwick, P. MacDonald, C., Update: CBS Working Group on Working Conditions for Bioethics, Canadian Bioethics Society, December 2003, available at <http://www.bioethics.ca/progress.html> (last visited December 3, 2008)Google Scholar

See Antommaria, , supra note 24; Nelson, H. L., “The ASBH ‘Taking Stands’ Debate,” ASBH Exchange 4, no. 3 (2001): 1, 8.Google Scholar

Brody, B. Dubler, N. Caplan, A. L. Kahn, J. Kass, N. Lo, B. Moreno, J. Sugarman, J. Zoloth, L., “Bioethics Consultation in the Private Sector,” Hastings Center Report 32, no. 3 (2002): 14–20.Google Scholar

The April 7–9, 2005 ASBH conference, “The Ethics of Bioethics,” was organized by Robert Baker, Union Graduate College; Arthur Derse, President, ASBH; Matthew Wynia, President Elect, ASBH; and Glenn McGee, Alden March Bioethics Institute. It was held at Union College in Schenectady, NY. One focal point was discussion of a proposed draft of a model code of ethics for bioethicists. See Baker, , supra note 10.Google Scholar

Derse, A., “Ethics Standards for Bioethicists,” ASBH Exchange 8, no. 3 (2005): 2.Google Scholar

See Baker, , supra note 11, at Table 3.1.Google Scholar

Id., at Table 3.4Google Scholar

Id., at Tables 3.2 and 3.3A.Google Scholar

My reasons for impatience differ from Scofield's. On my analysis, professionalization forces fields to address existential questions: Who are we? Whose interests do we serve? How do we serve them with integrity? By focusing narrowly on clinical ethics consultation the ASBH's code initiative avoids probing these definitive existential issues. One can appreciate such caution. Bioethics was conceived by accident and exists in large measure only because of America's predilection for legitimating successful pragmatic innovations. In the 1960s and 1970s, faced with the perceived fecklessness of traditional medical ethics in the wake of scandals involving human subjects research and frustrated by traditional medicine's seeming inability to deal with ethical issues arising in organ transplantation and critical care, agencies of the U.S. government, private American foundations, and the American media turned to multidisciplinary teams of administrators, health professionals, lawyers, philosophers, scientists, social scientists, and theologians to devise new regulations and policies. As these teams proved successful in developing, disseminating and administering effective policies they came to be known as “bioethicists,” eventually formed the societies that a decade ago united to create ASBH.Google Scholar

One suspects that the ASBH board fears that if it challenges members to settle upon a code that speaks to their common interests, they may find that they have few interests in common and centrifugal forces will spin ASBH off into fragmenting parts. (See, for example, the editorial by ASBH President Tod Chambers in the ASBH Newsletter [Chambers, T., “Editorial,” ASBH Exchange 11, no. 1 (2008): 2]).Google Scholar

ASBH members themselves, however, appear less timorous: More than 7 in 10 agreed that a code of ethics should focus broadly on standards applicable to all members. They seem to appreciate that a code that deals only with clinical ethics consultation will not address most of the issues of confidentiality, conflicts of interest and collegial relationships that they face in their day-to-day work as educators, scholars, and as research ethics committee members (see Baker, , supra note 11, at Table 3.3b). The reasons that ASBH members prefer a broad code ethics, rather than a code focusing only on clinical ethics, are evident from the demographic data.Google Scholar

Bioethicist play multiple roles: More than 4 out of 5 work in a health related field, more than 7 of every 10 engage in research or scholarly activities, 3 out of 5 serve as ethics consultants or serve on an ethics committees, 2 in 5 serve on IRBs/REBs, 1 out of every 3 teaches in non-health related fields, around 1 in 5 serve as a bioethics consultant outside of clinical and academic contexts, while 1 in 10 serves as an expert witnesses (see Baker, , supra note 11, at Table 2.5). A code focusing on only one dimension of their work — clinical ethics — was favored by only 3 out of 10; nearly half thought this a bad idea (see Baker, , supra note 11, at Table 3.3b). A narrow code of ethics focusing only on clinical ethics consultation will not address most of the activities ASBH members engage in as bioethicists.Google Scholar