The Contribution of Medical Ethics to the Administration of Justice

Gonzalo Herranz
department of Bioethics, University of Navarra
seminar Joint of the Ministry of Health and Consumption and the committee General General of the Judiciary.
Bioethics and Justice. Madrid, 1999
First session: Bioethics and Justice in the health field.

Index

Introduction

I. Some historical background

II. Professional ethics in medicine and the corporate administration of justice: codes of ethics and deontology and the collegial disciplinary regime.

III. Clinical guidelines and protocols: their ethical requirements and their possible role in defining good practice. internship

The ethical aspects of clinical protocols requirements

The judicial authority of clinical protocols

Responsibility of the authors of protocols

Future perspectives

IV. Bioethics and Medical Ethics Committees: their possible role as experts in the service of the Administration of Justice

Ethics Committees and their preventive role

Bioethicists as experts

V. Conclusions

bibliography and notes

Introduction

In this intervention, I propose to lucubrate, that is, to imagine, without much foundation, what the contribution of medical ethics to the administration of justice might be. This is a goal which, being new in many respects, must be modest and merely tentative in its pretensions. Its main merit is that of matching the work which, with so much skill, has been developed, from the perspective of fundamental rights, by my illustrious co-workerspeaker, Don Rafael Mendizábal Allende.

I will be guided in my discussion paper by what, it seems to me, is the main goal of this seminar: to seek a closer partnership between the administration of Justice and Bioethics, more explicit and frequent relations between judges and bioethicists. I recognize that this is a purpose full of both incentives and risks, but it is worth considering and debating. Perhaps we will see it more clearly at the end of our meeting.

A minimal sense of reality obliges me to point out that the proper field of my work is not Bioethics, but the professional ethics of medicine. Consequently, what follows are the reflections of a doctor keenly interested in medical ethics, not those of a philosopher capable of unravelling the ultimate relationship between Justice and Bioethics. Therefore, I will omit any reference letter to Justice as one of the Principles of Bioethics. Such an omission does not seem very serious, since, apart from the fact that, as Jonsen points out¹As Jonsen points out, justice has been the Cinderella of the principles, this bioethical principle has nothing to do with what is justiciable, but only with the distributive function of justice.

I will begin my intervention by referring to some historical background of the relations between judges and bioethicists and the traces left by one in the field of the other.

I will then discuss the different levels of connection that can exist between the general administration of justice and the corporate disciplinary regime. attention, thereby recognising an interesting precedent of real cooperation between the Administration of Justice and a special jurisdiction, the deontological jurisdiction, which is governed by codes of ethics and corporate statutes.

Finally, I will explore the role that professional ethics can be entrusted with in litigation against physicians. In particular, I will first discuss whether Ethics Committees of healthcare institutions, and also Bioethics professionals, can play a significant role not only in the peaceful prevention of lawsuits, but also as experts at the service of the Administration of Justice. And then I will consider whether it is possible, or even acceptable from a judicial point of view, to confer on clinical protocols that comply with certain ethical requirements a defining function of good medical internship .

I. Some historical background

The decisive fact that bioethics was born in the United States has marked it as a legal concept.². It has even been argued that, since bioethics and the new jurisprudence of medicine have lived side by side there for several decades, it is difficult to distinguish where their boundaries lie and which of the two has had more influence on the other.³.

Consequently, much in bioethics has a legal imprint. Some court rulings have become high-ranking bioethical norms, or have forced the creation of bioethical decision-making procedures or institutions. That there is so much talk today about patient autonomy owes something to Judge Benjamin Cardozo for his 1914 ruling; that there are ethics committees in hospitals owes something to a curious chain of errors that culminated in the New Jersey Supreme Court's ruling on the famous Karen Quinlan case.

The contribution that judges have made, with their judgements and arguments, to the doctrines and procedures of bioethics is therefore massive. American bioethics is profoundly judicial. Annas has been able to say that the main source of the subject matter, the development, the methodology and the values of Bioethics are not to be found at Philosophy or in Medicine, but in the common law that American judges are building with their sentences.⁴.

Thus, the important ethical notions of consent to medical intervention, patient information, the withholding of unnecessary care, the protection of prenatal life, the creation of ethics committees in hospitals, and many others are linked to many other historical judgements of judges or courts in the United States. The resource to jurisprudence is a typical feature of research bioethics: a large issue of the articles on research are nothing more than ethical commentaries on court cases. It is very common for the bibliographical references in bioethics articles to include a good issue number of more or less famous court cases. In this way, the considerations and arguments of the judgements become subject bioethics. Judges are cited as ethical authorities side by side with scholars at subject.

But if the stimuli with which the courts have encouraged the field of bioethics to grow are intense and frequent, there is also a lively current that goes from bioethics to the courtrooms. This influence began in 1947, and not without a certain symbolism, with the Nuremberg Code, which was just another recital of a judicial sentence. This document marks, for many, the historical birth of bioethics, even though it has been forgotten for more than a quarter of a century.⁵and of being, as a judicial reference, a hastily created document, created in haste and in violation of the principle of typicality, in order to condemn the accused Nazi doctors.⁶.

Not infrequently, judges have recourse to Bioethics in the analysis of their cases, so that in their judgements, alongside the obligatory references to statutory law and judicial precedents, the principles and ideas of Bioethics appear. In many countries, and not only in the United States, many bioethical guidelines, prepared by ethics commissions, have served as a starting point for legislation, as shown by the rules on research on human beings and animals, the laws on assisted human reproduction, the regulation of transplants or the applications of Genetics. In some countries there is talk of bioethics laws.

This sketchy historical reminder suffices to show that Bioethics and Justice can live in intense harmony speech. They have done so in the United States. And this is not alien to us. Through different channels - one of them certainly being Bioethics - the gravitational force of North American law is beginning to be felt in our law. It has been stated that a process of convergence of codified European-continental law with common law, the casuistic law of precedent of Anglo-Saxon origin, is underway.⁷.

If this is the case, we will see a broadening of the relationship between bioethics and justice.

II. Professional ethics in medicine and the corporate administration of justice: codes of ethics and deontology and the collegial disciplinary regime.

Although this joint seminar will devote one of its sessions to considering the role played by professional ethics in today's society, I do not want to pass on without making a few brief reflections on the relationship that links the collegial disciplinary regime with the Administration of Justice. This is one of the points where, in my opinion, a denser and more fruitful connection should be established between medical ethics and jurisdiction.

It is well known that the corporate disciplinary regime takes a marked diversity of forms in different countries. In the Anglo-Saxon world, the professional discipline is usually entrusted to a General Medical committee , a body independent of the national medical association , established by an Act of Parliament or by Federal or State Statute, composed of doctors and non-doctors, and exercising ultimate authority in matters of registration and professional conduct of doctors. Its decisions may be appealed, for example in England, to the Private committee , which is only exceptionally the case.⁸. The disciplinary regime of the committee General Medical Practitioners is compatible with the independent disciplinary systems of national medical associations or national health services, which are exercised exclusively, or almost exclusively, by medical practitioners.⁹. Although these disciplinary systems are very active and enjoy an excellent reputation with the general public, they are not infrequently accused of corporatism and a lack of partnership in clarifying or interpreting professional misconduct by physicians.

Outside the Anglo-Saxon world, especially in continental Europe and Latin America, corporate disciplinary jurisdiction is assigned to the heads of official bodies (Orders, Chambers or Medical Colleges) with the financial aid of technical advisory bodies (ethics or deontology commissions). The disciplinary function must comply with the rules contained in the codes of professional ethics and deontology. It is exercised in corporate bodies (at local, regional or central level) and at agreement with a special disciplinary regime. And it is always open to the final resource before the courts of the ordinary administration of justice.

In Spain, as in many other countries, there is a certain lack of consistency in the strength of the ethical system: it is a mixture of strength and weakness. On the one hand, important aspects of the disciplinary regime, in particular the procedure to be followed, are firmly grounded in our legal system, as they are contained in the General Statutes of the Spanish Medical Association.¹⁰. But disciplinary activity is comparatively weak: it suffers from rudimentary typology: the list of deontological offences contained in the Statutes, obsolete and incomplete, needs urgent and extensive revision, which, fortunately, is already at an advanced stage.

In a few countries there are systems that differ from the general model . In France and Colombia, for example, there is a complete identification between professional ethics and law, between disciplinary regime and administration of justice. In these countries, the code of ethics is one of the laws that form part of the legal system.¹¹. In France, deontological justice is administered, in its various instances, by tribunals always presided over by a member of the judiciary, at whose sides sit members of the deontology commissions of the professional body. The possibilities for understanding between ethicists and judges are maximised here, even if it is inevitable that codified ethics sometimes loses its richness because of its submission to the law. In other countries, such as Austria and Mexico, there is no code of ethics and no professional jurisdiction: professional ethics is absorbed into medical law and judges judge all medical disputes. There, there is only one judicial protagonist, so there is no possibility of dialogue and speech between ethicists and judges.

Depending on the model relationship, so will be the intensity of speech between the disciplinary regime of the professional body and the judicial system. In Spain, we have very encouraging precedents: in quite a few judgments, judges resort to codified deontology as an auxiliary source , doctrinal or rules and regulations, in support of their decisions.¹². And, reciprocally, court rulings exert a marked, though not always synergistic, influence on the way in which the doctor's deontological behaviour is assessed.

Professional ethics and justice should always be concurrent forces. The former imposes on physicians a commitment to provide quality care, including the diligence necessary to prevent harm. The latter, through its judgements in malpractice suits internship, certainly provides for compensation for harm and could, at least in theory, also contribute to preventing harm.

And yet, no one anywhere has proven that tort litigation and the harsh judgments that conclude it have had a beneficial corrective effect on physicians' malpractice. This leads one to postulate that judges and bioethicists should cooperate in the search for better and more effective methods to prevent medical malpractice.¹³. Such cooperation seems equally necessary to avoid adverse effects of their respective actions: on the one hand, unjust medical corporatism; on the other hand, the divorce of jurisprudence and professional good sense, which can easily happen with the harsh application of ethical principles alien to the local professional ethos.

III. Clinical guidelines and protocols: their ethical requirements and their possible role in defining good practice. internship

As is well known, a few years ago a new subject of documents, the so-called clinical recommendations, guidelines or protocols, entered with force in the field of medical internship . These are intended to guide the physician (and also the patient) in the task of deciding on a rational basis which of the interventions (diagnostic, therapeutic or preventive) available is the most appropriate in different, but well-determined, circumstances.

These documents are already countless. They have, logically, very different structure and content. Within their common normative purpose , some simply suggest, others recommend, and others, finally, impose a certain line of clinical conduct. Although there is no agreement on the most appropriate nomenclature, it is said that protocols are equivalent to orders to be obeyed; that guidelines are instructions that should be followed, unless there are reasons to the contrary; and that recommendations are mere advice to be heeded. But, it is immediately added, even protocols are not binding without exception, for the physician may deviate from them when he has reasonable and defensible justification for doing so. In what follows, following the precedent set at the first joint seminar committee General del Poder Judicial-Ministerio de Sanidad y Consumo sobre Responsabilidad del staff sanitario, held five years ago, the expression protocol will be used as a collective term for these different types of documents.¹⁴.

In Spain and abroad, there has been debate about the value that judicial bodies can attribute to clinical protocols as guidelines that help to judge medical liability. This is a parallel discussion to the one that continues to be held everywhere on the technical and ethical value of these guidelines. The topic is not new to this forum. In the 1994 Joint seminar very prudent and interesting conclusions were reached and, in particular, that it was desirable to define lex artis as precisely as possible, as an epistemic category common to medicine and law. In this sense, clinical protocols could not only be for the physician guidelines of better professional quality and greater legal certainty, but could also represent for the judge an effective financial aid , thanks to the fact that, in a certain way, they constitute a positivization of the lex artis and determine the scope of the duty goal of care. Consequently, the protocols could be provided by the parties in litigation or requested by the judge himself so that such relevant instruments are not absent from the process.

However, within the general agreement about the alleged value of the protocols in the objectification of the different levels of the lex artis (general, institutional, individual)¹⁵ and their hypothetical auxiliary role in the judicial process¹⁶questions were raised about their mandatory or discretionary application, about their fixity or their flexibility, about the paradoxical possibility that they increase the judicial vulnerability of doctors, and, finally, about their facilitating or complicating role in the judicial test .

While these conclusions and perplexities remain valid, it is worth noting that much has happened since 1994. The issue of protocols has grown exponentially, as has the character and credentials of their authors. Some protocols are of great intrinsic value because they are based on a critical, unbiased and transparent assessment of the relevant bibliography and have gained general acceptance. Others are worthwhile because they are guaranteed by serious and accountable institutions. Still others are content with much less: they aspire to local validity only, or they are documents-comparsa, which are used to support promotional campaigns by the medical or pharmaceutical industry. It is therefore not surprising that some protocols contradict others, not only because of the different methodology used to create them, but also because they pursue different objectives, such as defining what is best for the patient, for the community, or for groups with particular interests. All this creates perplexity and mistrust. In the space of a few years, some of the hope that had been placed in the culture of evidence-based medicine has been lost: the gap between factual assertions and normative recommendations is not easily bridged average .¹⁷. Nevertheless, the scientific authority of protocols is incomparably superior to the anomie of earlier times: despite their limitations, protocols represent an undeniable advance.

It is therefore necessary to consider the ethical limits of clinical protocols and how to consider the possible use of clinical protocols in judicial instances today.

The ethical aspects of clinical protocols requirements

In medicine, science and ethics are inseparable. Clinical protocols, if informed by rationality and critical rigour, represent clear progress, if they meet certain ethical conditions.

This is underlined in the Statement on Physicians' Freedom of Prescription, published in 1998 by the Central Commission on Deontology of the committee General Medical Association. It states that it is imperative for physicians to take the protocols into account in order to benefit from the greater objectivity and updating that these documents are supposed to provide and to be sure that, by adhering to them, their clinical actions will be recognised as reasonable and in accordance with the medical art of the day. The Declaration offered a modern notion of clinical freedom, defining it as the physician's ability to choose, from among available interventions, that which, after weighing their respective validity, utility, safety and efficacy, is in the best interests of his or her patient, and for which he or she must obtain the necessary consent from the patient.

The Declaration underlined that the various forms in which the so-called "evidence-based medicine" is expressed (large controlled clinical trials, clinical guidelines and protocols, programs of study goal -analytical, consensus statements) are not dogmatic, obligatory and permanent formulas, but clinical indicators, flexible and temporary, but should always be taken seriously, as they are often the fruit of a critical and competent assessment .

Patients, the Declaration affirmed, want the doctor who treats them not only to be free to make the decisions that are best for them, but also to be manager, that is, to be willing to give an account of his or her actions, when asked to do so, and to justify them as reasonable and in accordance with the medical art of the time.¹⁸.

Assuming that the protocols comply with the required scientific criteria, in order to acquire ethical authority, they must comply with certain ethical criteria requirements . Here are some of them:

a. Their purposes must be good: not all protocols have acceptable goals, such as improving the quality of patient care, enhancing objectivity in medical decision-making, or providing physicians with seriously evaluated information. Some protocols may pursue ethically ambiguous purposes, such as rationing health care, reducing the risk of litigation, facilitating differentiated resource allocation, evaluating the economics of physicians' performance staff , substituting for physicians in the application of clinical routines, or disallowing certain serious patient needs or conveniences as superfluous.¹⁹. Occasionally, the aims of some protocols can border on perversity, for example, when they do not allow patients to be informed about necessary or very convenient interventions from which they are excluded on the basis of debatable criteria of age or risk; or when they establish systems of competitive assessment among doctors that destroy the rules of proper collegiality.²⁰.

b. Protocols are not a universal remedy for all clinical situations or circumstances; moreover, they are necessarily, because of the consequentialist nature of the ethics on which they are based, blind or inapplicable to some important problems of medical internship (palliative medicine, for example), where there is no interest in, or difficulty in, obtaining rigorous checks on the efficacy of interventions.²¹.

c. Protocols should be developed with all desirable interdisciplinary financial aid , but always under the responsibility of physicians. Those prepared on the initiative of non-medical groups should be submitted to assessment, corrected and possibly approved by the representatives of the physicians who are to apply them. The aim is not only to respect doctors' freedom to prescribe, but also to give ethical validity to their professional responsibility, so that they can exercise their advocacy on subject in the interests of patients.²².

d. Bringing clinical protocols in line with advances in science and medical internship requires that the groups that circulate them take public responsibility for establishing a mechanism for review and updating. In their chapeau, clinical protocols should clearly indicate their expiry date, who assumes responsibility for periodic review, and the means to be used to rapidly incorporate relevant innovations.²³.

e. Clinical protocols must be respectful of legitimate differences of opinion, especially on those points where the knowledge is scarce or contradictory and it is not possible to arrive at a seriously grounded common view. They must not stifle initiative or become prescriptions that favour mental laziness or the internship of the average, which is not always the best.²⁴.

f. It is not possible to speak of consensus when the members of group who have drafted the protocol have been chosen on the basis of a particular vision of the problem under study. Nor can unanimity be forced by using language that obscures differences of opinion. It is not honourable to publish as a consensus document what is merely a compromise document.²⁵.

The judicial authority of clinical protocols

It is questionable whether, once the technical and ethical quality of a protocol has been proven, it could be used, by judges or lawyers, as a yardstick for measuring the conduct of doctors in malpractice litigation internship. At final and in 1999, can any legal authority be granted to protocols?

For the doctor on trial, a protocol, as well as a medical record, can be a shield that protects him, or a sword that wounds him.²⁶. The protocol can be used by the experts for the defence or the prosecution as an additional test before the judge: sometimes to exonerate the doctor, sometimes to incriminate him. The aim is to make the expert opinion more reliable, thanks to the scientific authority that the protocols are supposed to have. But it does not seem that, given the inconsistency of the protocols themselves at the present time, they will gain a privileged place in the current system of evaluation of procedural evidence.²⁷.

It will always be necessary for the judge to be satisfied with the probative value of the protocol provided, after having inquired about the quality and reliability of its scientific basis, about the extent and intensity with which they are supported by the profession, and about their updating at the time of the events being judged.²⁸. When the protocol is provided as test of incompetence or misconduct of the accused physician, it cannot automatically be recognised as a standard of reasonable medical internship . The accused physician may counter with genuine or feigned arguments, pointing out that the protocol, at the time of the facts, had not been published, or was already obsolete, or had not received the necessary professional endorsement; or that there were clinical circumstances that made it advisable to deviate from it; or that the treatment applied was compatible with the above-mentioned . protocol²⁹. This can make the evidential validation of protocol very difficult.

As a result, protocols have so far not often been presented as test in court. In fact, where there is sufficient judicial precedent, and specifically in the United States, clinical protocols are invoked as a standard of care in only a minority of court cases: in fact, according to a survey by Hymans et al.³⁰protocols have played a relevant or decisive role in test malpractice in only 6.6% of the cases, which may, in part, be due to the fact that, as protocols are a relatively recent phenomenon, they were not in place when the incidents occurred.

To remedy the status, it has been suggested that if the protocols were given legal backing they could act not only as guide for doctors, but also as binding criteria for the courts.³¹. But the idea does not seem likely to succeed. Even the pilot project in the State of Maine to create legally validated protocols, so that doctors who follow them can use the protocol monitoring as an effective defence against a malpractice suit internship, while practitioners who do not obey them will not enjoy that privilege, seems to have failed. It should be noted that the measure was not intended to alleviate the anguish created by physicians' fear of malpractice litigation internship and to eliminate defensive medicine in the process. The measure was simply an incentive to attract to Maine specialty physicians (obstetrics, anaesthesiology, emergency medicine) who live under constant threat of malpractice suits. internship³².

Much more important, and also more likely, seems to be the role that out-of-court protocols may play in the amicable resolution of disputes: if they believe that protocols can exculpate the doctor's conduct, patients' lawyers will tend to recommend that no legal action be taken. In the survey cited above, lawyers for the parties reported that in more than a quarter of the cases, the existence of protocols meant that no legal action was taken or that settlement was very easy to achieve.

Responsibility of the authors of protocols

A very interesting question has been raised on some occasions: whether the author of a protocol could be taken to court in the event that a patient was harmed by a doctor's application of protocol.

An Australian body has ruled on the issue, which considers that there is a clear difference in judicial meaning between what the protocols state and what a "private" author says.³³ which considers that there is a clear difference in judicial meaning between what the protocols state and what a "private" author says. The latter is not obliged to go beyond the general ethical duty to communicate as objectively as possible his data and observations and to refrain from misleading his readers. But if he exaggerates or distorts the truth and raises false hopes, the unconscionable author would commit a deontological breach, but he would not be manager legally liable for the consequences of implementing his recommendations, as he is not legally bound by a duty of care for the general public. To some extent, it is up to the publishers who have accepted his article for publication and his readers to critically assess the merits and value of the aforementioned article.

But there may be a net risk of liability in the case of a protocol which, promulgated by an academic authority or health administration, is presented to physicians and the public as a definitive and authoritative course of action to be adopted in dependent institutions. Liability would be increased if in any way the following of protocol were to lead to a significant diminution of the clinical freedom of physicians. It is necessary to repeat here that the entity developing a protocol should always seek the partnership of the physicians who are to apply it, through an appropriate procedure of enquiry, criticism, modification and voluntary acceptance.

Protocols should never be blunt and rigid mandates, but rather advice charged with prudent authority, addressed to intelligent and free beings. They can never be imposed as straitjackets by their authors and promoters, nor can they limit the physician's freedom to inform his or her patient about treatment alternatives, so that the patient can exercise his or her right to choose.

Future perspectives

What will happen in the future? It is not easy to make predictions in this indeterminate field, which is much more subject to changes and ups and downs (of scientific rectification, political pressures, economic circumstances) than to regular and predictable progress.

There are indications that clinical protocols may be incorporated into legal standards, not because of their intrinsic scientific and health care value, but with the aim of legally anchoring new ways of ensuring and controlling the quality of medical care and, above all, of controlling the expense health care site. At the moment in Germany, in view of the health care reform of the year 2000, the possible inclusion of a article in the Code of Social Law stating that medical protocols must be followed is being discussed. In a recent congress , it has been stated that protocols are not a system of exclusively natural-scientific standards and recommendations, but also have a normative and evaluative character. In the view of some, protocols are the boundaries that delimit the corridors of "good medical practice" according to the current state of science.³⁴.

It is not out of the question that, in some country, a parliament could approve pass a law on clinical protocols, obliging doctors to follow them and judges to have them as a metre patron saint of medical liability. Not far from us, Germany is considering the possibility of introducing clinical protocols into the sphere of legal rules and regulations , albeit through the small door of social law.

In conclusion: the time has not yet come to pronounce on the role of protocols in either the medical or the legal field. For the time being, their dual function of ensuring the quality of medical interventions and unequivocally protecting patients' rights and interests needs to be consolidated. They can then, if they comply with the strict ethical requirements of requirements , have a rationalising and objectifying effect on the expert function in the service of justice. But in order to do so, they need a professional support procedure that guarantees their scientific basis, regulating the process of their essay, the mechanisms of assessment and control of the results, the criteria of update with immediate incorporation of the necessary modifications and the areas of flexibility that serve to respond to the values and preferences of patients and doctors.

It may seem a high price to pay, but we must not forget that what goes around comes around.

IV. Bioethics and Medical Ethics Committees: their possible role as experts in the service of the Administration of Justice

That the Ethics Committees of health institutions or individual bioethics committees at degree scroll could play a role in legal proceedings is an idea that may seem extravagant today.

In Spain, at least, there does not seem to be much room for the participation of Health Care Ethics Committees in the judicial field. Circular 3/95 of the General Administration del Insalud³⁵ on Health Care Ethics Committees positively discouraged the interference of such Committees both in the field of the corporate deontological discipline of the Spanish Medical Association and in direct legal proceedings involving either the staff working in the hospital or the hospital itself. And this criterion is reflected in the regulations of the Committees themselves.

But things seem to be changing. Some signs indicate that the judicial potential of Bioethics cannot be underestimated. It has even been said that the Committees will not only facilitate the work of justice, but could become an alternative, faster and more efficient way of resolving new and complex conflicts, such as, for example, those derived from manipulation Genetics, conflicts for which the latter is not prepared.³⁶.

In the future, ethics committees and individual experts are likely to go their separate ways, as they have done so far: Committees appear to be better suited to play a preventive role in medical litigation, whereas bioethics consultants-experts seem to be better suited to act as qualified witnesses in court cases, as it does not seem easy for a collective body to act as an efficient interlocutor in the adversarial atmosphere of court cases, nor does it seem acceptable to grant one of its members an open credit to act as an oracle to answer questions on which the committee had not reached a formal agreement .³⁷.

Ethics Committees and their preventive role

The idea of the committee of Ethics as an autonomous judicial body does not seem to be close in time, nor does it seem acceptable in the doctrine. It is, however, worth studying the function that, as amiable compositeur, the committee can play in the prevention of judicial conflicts. González Cajal has assigned to the Ethics Committees the function of a gatekeeper of professional liability³⁸. In his view, ethics committees, as experts in ethics, could mediate in medical malpractice claims, since many of them are triggered, not by the dire consequences of a medical intervention, but by what the patient perceives as an ethical failure (disrespect, lack of candour, lying, hostility or injustice).³⁹.

There is positive experience, in the United States, that the ethics committee can be counted among the arbitration and conciliation bodies that reduce the issue of lawsuits. To do so, they need to overcome two prejudices: they need to be seen as purely advisory bodies, and they need to be limited to being the safe, corporatist refuge for professionals in distress. They also need to gain strength and rigour at subject of procedure, to give serious substance to their recommendations: their moral authority will then have the strength to impose, by their intrinsic quality, their awards. They also need to make it clear, in substance and in appearance, that they assume with independence and responsibility their first commitment, which is the fair protection of patients and their rights.⁴⁰.

A striking aspect of the preventive function of ethics committees is the possibility of granting immunity from prosecution to the physician who follows the committee given by the committee. This prerogative was already included in the rule-model that, for the establishment of ethics committees in hospitals, was recommended in 1983 by the well known American Presidential Commission⁴¹. So far, only the Hawaii legislation, which endowed the ethics committees with broad decision-making authority, granted legal immunity to physicians who consult the committees and put their recommendations on internship . Fleetwood and Unger have studied this issue in depth.⁴². They recognise, to begin with, that members of Ethics Committees who act in good faith and respect the deliberative decision-making procedure should be protected, in order to work freely and effectively, from the threat of legal liability proceedings. But, logically, they are of the opinion that it is detrimental to grant committees such unusual authority, as it not only unjustly expropriates the physician and the patient of their freedom of decision, but also places an unbearable burden on the shoulders of the members of committee , as they will not always have the technical skill and procedure to make such serious decisions.

In my view, the preventive, or rather mediating, function of the committees should be exercised in the context of amicable conciliation. They will be more effective if they act not as miniature courts of law, but as instances where problems are dealt with sincerely and seriously assessment . The doctors and patients involved must be convinced that committee plays fair: that it recognises, and financial aid to recognise, that there are problematic and complex situations that do not admit easy solutions; that financial aid will seek the cause of errors and determine the means to prevent them from recurring; that conciliation can often only be achieved through acknowledgement of the error and the granting of forgiveness.

As mentioned above, the expert role of committee as a collective body in court proceedings does not seem to have a convincing basis. The corporate opinion of the committees has reached the courts, not because they have been called to testify, but because, once the first ethics committees were established in hospitals in the USA, cases in which the committees had exercised their advisory function soon came before the judges. This was an inevitable eventuality⁴³In the light of the Quinlan decision, and others after it, which had suggested that in complex cases, especially those involving withholding of treatment, it was more reasonable to consult such committees than to go to judges seeking a court order or authorisation. The Courts reacted, as expected, to the Committees' decisions in different ways: some ignored them, others considered them as test reliable and based their judgements on them, others reserved their opinion. The importance that judges may attach to the committees' opinions depends on the quality of their arguments, the seriousness with which the deliberative procedure has been followed and, finally, their congruence with the internal morality of the medical profession.⁴⁴.

Bioethicists as experts

Judging by what has been published, the idea of the bioethicist acting as an ethical expert before judges does not arouse much enthusiasm. Opinions are divided between rejection or restricted acceptance of the idea.

As early as 1984, Delgado and McAllen, the first to address the issue, found serious reasons to consider problematic, or even inadvisable, for bioethicists to act as experts before courts of law⁴⁵. They thought that expert testimony on subject ethics rules and regulations is necessarily based on subjective positions. They suspected that bioethicists could cause dysfunction in the judicial system, if, instead of respecting the independence of juries and judges, they would push them to adopt what they themselves judge to be morally correct. There would be no problem, according to the authors cited above, if the experts limited themselves to describing the different options that exist in society about the problem considered by the court, or to assisting the court in the analysis of complex concepts or arguments; but it did not seem admissible to them that experts should end up offering a final ethical judgement about the goodness or badness of persons, actions or even legal norms. Only in very special cases could the intervention of experts be useful and reliable, provided that they publicly stated the school of thought to which they belonged.

Pellegrino and Sharpe, a few years later, expressed even more scepticism⁴⁶. They did so after studying in depth the performance of bioethicists in some trials and questioning whether ethical expertise is really possible and desirable. They considered that the risks of meddling by bioethicists were too great, not only for the independence of judges or juries, but also for the relationship between law and morality itself. It did not seem acceptable to them that courts should modify the legal speech with medical-ethical considerations, or that they could abuse their authority by taking sides by including certain moral pronouncements in their decisions. The same authors⁴⁷ recently re-examined their position and reaffirmed it, adding new arguments: that the confrontation between bioethicists acting as experts for the parties in litigation threatens the integrity of their pedagogical role, and that the usefulness of bioethicists as authorities on rules and regulations remains doubtful. They concluded that bioethicists have a more appropriate place in parliamentary committees, providing qualified support to the legislative process, but that they have no place at conference room in lawsuits, meddling in litigation.

An even more radical, negative attitude is that of Scofield⁴⁸ and Wildes⁴⁹who, from different arguments, strongly demonstrate the impossibility of the figure of an expert in ethics in a pluralist society internship rules and regulations . These experts must act within particular moral communities, but not in the secular society that encompasses a multitude of them. The only expert to make the most appropriate decision is the individual, for each one is his or her own moral expert. In any case, the expert in ethics should limit himself to being like a cicerone who guide in the moral field, or like a pedagogue who gives information and explains things that are in the ethics books. But it should not go beyond that. Therefore, there is no place for the expert in the courts.

In contrast to these sceptical views, there have been some tempered opinions in favour of the ethicist's participation as an expert before the courts.

Agich and Spielman⁵⁰after rebutting the sceptics' arguments and analysing some actual cases of normative ethical testimony accepted by judges, try to determine very carefully under what circumstances such testimony would be admissible. They believe that it is contrary to good procedural technique for courts to reject it without further consideration. But it should be for the courts themselves to determine when and in what areas they need the qualified financial aid of ethicists. This is an empirical question and intensely dependent on the context of each case.

Fletcher⁵¹ strongly advocates the presence of ethicists in the courts whenever vital ethical issues are at stake. In his opinion, there should be a symbiosis between law and bioethics in an advanced society: bioethicists should contribute to the evolution of law and jurisprudence, but at the same time they need their ethical opinions to be submitted to test in the judicial context. Surprisingly, Fletcher rejects, as inappropriate behaviour, bioethicists' participation as party experts in malpractice suits internship, and their assistance in the amicable resolution of conflicts outside the courts, as he considers that neither new knowledge emerges from this nor does it contribute to the evolution of morality. Therefore, he concludes, bioethicists should only be involved in cases that deal with new and important problems, which open up new perspectives. He also advises that bioethicists should refrain from receiving fees, as this gives them more freedom to select cases and allows them to maintain the necessary independence.

Morreim has made a general statement on what the future role of ethicists might be in the judicial context. He argues in favour of active but selective participation: in cases that raise novel issues on which there is neither legislation nor judicial precedent; or where it is deemed necessary to abandon, tighten or change existing rules and create new precedents because new circumstances demand it; or in situations involving moral issues that cannot be ignored and which force the court to take a position on a controversial ethical topic . In such circumstances it is better for judges to hear and evaluate expert testimony to appreciate how ethical values are implicated in the issues they are called upon to decide, and thus to ensure that their decisions are informed by seriously grounded data and reasons, not by light and superficial arguments.

A common feature can be observed in the judicial experiences and in the theoretical programs of study of bioethicists: the reluctance to be involved in the judicial confrontation. There is no room for pugilation between ethicists. Practically all of them renounce being experts on behalf of the parties, in favour of acting as experts in the service of the court. There is strong support for this idea. Caplan concluded in 1991 that ethicists have no role in trials, with one exception: when it is possible to use ethical expertise neutrally, for example, by having the bioethicist testify as a friend of the court.⁵².

V. Conclusions

There are neither many nor complex tentative conclusions that can be offered for discussion.

1. Cooperation between bioethicists and judges is highly desirable, for it holds possibilities that cannot be found outside of it. It requires, for the time being, a long period that should be devoted to increase, together with the knowledge and reciprocal appreciation, the shared study of problems. This Joint seminar seems very well adapted to achieve these objectives.

2. A field familiar to physicians and legal practitioners is that of medical ethics and deontology, with the disciplinary system attached to it. Here, medical ethics and law converge. The long history of concordant decisions in the interpretation of medical professional law must be continued in the future. The necessary, and hopefully forthcoming, approval of the new General Statutes of the Spanish Medical Association may be an opportunity to enrich, in doctrinal and practical terms, the relationship between judges and doctors.

3. It is necessary to proceed with caution in the elaboration of a doctrine and a praxis that determines the role that clinical protocols can play as an objectifying element of the lex artis médica. There are many possibilities open to them in the legal normative system, but it will take a long time for the protocols to be consolidated as a reliable guide in the clinical internship . Once the ethical and professional requirements have been established to guarantee them as reliable guidelines, they will be able to find their legal niche as guarantors of the lex artis required of doctors.

4. Health care ethics committees seem well suited to play a preventive role in dealing with conflicts between doctors, institutions and patients. This can be an irreplaceable school for learning conflict resolution and preparing normative documents to improve the ethical environment of the hospital.

5. The cooperation of Health Care Ethics Committees with the judicial system is a hope that will only become a reality when the Committees have been consolidated as authoritative bodies in the health care field and enjoy the necessary institutional and social prestige. It would be very interesting to study, during this maturation period, the requirements of procedure so that the Health Care Ethics Committees can act as experts before the courts.

6. The participation of bioethicists as expert witnesses in malpractice suits internship is not appreciated by those with the necessary expertise. It is almost universally held that there are two ideal fields of cooperation of bioethicists in the creation of law and the administration of justice. One is to cooperate with parliamentary committees in the preparation of legal norms of different rank. The other is to act as expert friends of the court in the preparatory phase or in the oral hearing of trials.

bibliography and notes