Bias towards the interests of hospital management

A CEC can have incentives to provide guidance that comports with the interests of the hospital management.1 ,5 ,6 The risk of this is perhaps greatest in the case of individual ethics consultants who are employed by the hospital. Clinical ethics advice, if acted upon, sometimes has significant consequences for the hospital, financially or through influence on public relations. For instance, whether to terminate or continue costly intensive care treatment can matter economically to the institution. The clinical ethicist or committee leader who is directly employed by the institution, and thus has an interest in remaining in favour with the management, therefore may have an incentive to advice against maintaining or instigating costly treatment. An additional problem is that such conflicts of interest can prevent the CEC from addressing more general problems pertaining to the hospital's organisation that become apparent from consideration of a clinical case.

In one case, the CEC's written report pertaining to a clinical case was returned by the hospital administration with the admonition that the case be considered again with more attention given to questions of costs. In another committee, a member who was also a department head found that his presence in the CEC stifled the submission of cases from his own department, and thus decided to resign from the committee. In yet another committee, all parties to the discussion agreed that the case ought to be reported to the official authorities as a breach of law. However, the management's fear of negative public attention deterred the CEC from advising firmly in the written report.

Bias towards laws and regulations

As stated above, the CEC case deliberation should uncover the morally salient factors in addition to providing adequate moral guidance when sought. These goals may occasionally conflict with keeping strictly within the bounds of laws and regulations. Consider the following case: A woman is involuntarily admitted to a psychiatric ward for postpartum psychosis. The condition is serious and medication is ineffective. Electroconvulsive therapy (ECT) is medically indicated, but applicable health law in this case demands written informed consent. Although the patient cooperated, she was incapable of giving valid consent. May the treatment still be performed?7

If this case is brought to an ethics consultant or committee it seems clear that the CEC cannot perform a morally fully adequate deliberation without considering whether lines of action that are prohibited by the law nevertheless could be morally acceptable. A bias towards current laws and regulations—for example, through concluding that an act is morally acceptable if and only if it is lawful or fulfils explicit rights, or that an act is morally unacceptable if and only if it is illegal—would unduly restrict the CEC's deliberation and thus obstruct the committee in achieving its goals.

According to Engelhardt, some ethics consultants are indeed rightly charged with this kind of bias: ‘[T]he ethics which is the primary concern of healthcare ethics consultants is not grounded in a set of moral norms but is rather in a gloss on a particular ethics or ethos established at law and in public policy … Healthcare ethics consultants in giving ‘ethical’ advice in fact provide a restatement of applicable law and public policy framed in a moral discourse that is grounded in a genre of legal positivism that accepts local law.’8

The contention by Fox and Arnold that a CEC's deliberation should be evaluated on its ‘ethicality’9 is problematic if ‘ethicality’ is taken in a narrow sense as critiqued by Engelhardt. A CEC can easily fall into the trap of treating the law's strictures on actions as coextensive with the moral boundaries. Emphasis should be on uncovering the moral aspects of the case, as opposed to merely providing a recommended line of action within the framework of current legislation. Ideally, the CEC should be free to point out unfortunate aspects and consequences of current laws, regulations and practices. Such criticisms can provide a necessary impetus for processes of reform. When the bias towards laws and regulations is present, the CEC may not be able to fulfil this vital role as a critic. However, experience from Norway also shows some committees performing the opposite error, that is, lacking knowledge about health law and failing to discuss points pertaining to law when relevant.10

Bias towards ideologically or religiously grounded bioethics

CECs may have certain ideological or religious preferences that are explicit or implicit. This may give rise to bias when the preference does shape the case analysis but is not explicitly declared. For instance, a CEC in a religiously affiliated hospital could be expected to perform their case analyses within the ethical boundaries set by the religious tradition of the hospital. This constitutes a bias when arguments, viewpoints and potential solutions that are morally relevant are ruled out because they do not comport well with the hospital's religious foundation.

The same kind of bias may arise where an individual consultant or committee member relies on ideological or religious reasoning to the exclusion of arguments and premises not based in the preferred ideology or religion. This problem is analogous to unreasonable reliance on a given moral perspective, treated in the next section.

Bias towards inadequate moral perspectives

The nature of the ‘ethics’ involved in clinical ethics consultation is disputed. Thus, there will be different opinions on whether a CEC's treatment of the ethics is biased or not. The point here is that from a certain ethical outlook, the ethical perspective(s) adopted in a given deliberation may be judged to be inadequate and biased. It is a problem that neither specific case reports nor the practice of clinical ethics itself usually comes with an explicit declaration of theoretical presuppositions.11 For simplicity, we examine only four of the myriad of competing moral perspectives: a ‘high moral theory’ view; a ‘mid-level theory’ view, and two ‘common morality’ views.

In our experience with the Norwegian CECs, committees typically draw on many sources of norms and values without privileging any single perspective. Points that are raised in a case deliberation can relate to moral principles, virtues, analogous cases, projected consequences, laws, regulations, professional standards, clinical and moral intuitions, clinical and moral authorities, institutional values and more.

From the perspective of a given high moral theory (eg, deontology, consequentialism, natural law ethics), not only are some of the above mentioned considerations raised by the CEC more pertinent than others. Some may strictly be irrelevant to the moral resolution of the case, whereas others may be of over-riding importance (eg, in certain forms of deontology, that a given line of action involves knowingly deceiving the patient rules out this alternative from the outset). And so, from the standpoint of the philosopher holding one of these high moral theories, the CEC discussion may be judged to be biased towards one or more moral theories or perspectives that are inadequate or misleading.

A competing perspective is a mid-level moral theory view. Prominent among mid-level moral theories is the ‘principlism’ espoused by Beauchamp & Childress.12 A main contention is that there is a common morality to which everyone committed to morality subscribes; and that among the principles that belong to this common morality are the four mid-level moral principles especially pertinent to healthcare ethics: autonomy, non-maleficence, beneficence and justice. Through processes of specification and balancing of the principles, one is lead towards a normative resolution of the case at hand. Mid-level moral theories owe their popularity, in part, to the fact that there is no consensus on what a canonical ethical theory should look like. In the absence of a consensus, the next best thing may be to emphasise moral principles that all in principle could agree on.13

However, it is our experience that the application of principlism to particular cases in a clinical ethics committee is, in practice, rather difficult, and may slide towards what could be termed a ‘vulgar principlism’. In vulgar principlism, the four principles function mostly as reminders or headlines under which to organise the morally salient features. This observation echoes Clouser and Gert's criticism of principlism's principles as providing ‘merely checkpoints’.14 And instead of a considerate balancing of norms by way of reflective equilibrium, the case is settled by fiat or intuition; features of the case thought to be morally salient are welcomed into the ‘mix’ regardless of which theoretical frameworks they could fit into, and then the case is adjudged: ‘all in all, we feel that…’, or ‘in our view, the decisive point is that…’ without further argument for this conclusion. In these cases, then, there could be bias towards an inadequate moral perspective, with an unreasonable deference to the intuitions and discretion of the CEC members.

However, what for the principlist appears to be a misuse of his approach may, from another perspective, be a paradigm example of ethical deliberation well performed. The Norwegian philosopher Knut Erik Tranøy distinguished between ethics as a branch of philosophy and ethics as the everyday reflection on morality that all people perform.15 On the latter, ‘common morality’ approach, what has been termed above as ‘vulgar principlism’ appears in a wholly different and much more positive light. For, on Tranøy's common morality theory, bringing forth and examining all kinds of points and arguments from diverse sources is just what well-performed ethical deliberation is all about. On this view, an overarching moral theory is simply unnecessary. The lack of such a moral theory to sort and structure arguments is not a weakness and does not in itself lead to bias. Additionally, considering the current state of moral philosophy with no significant agreement in sight on which moral theory is to be preferred, something like Tranøy's common morality approach might be argued to be the best we have for dealing with concrete moral dilemmas that demand a resolution in the here and now.

An approach that shares some basic assumptions with Tranøy's common morality view is discourse ethics. Here, substantial moral norms are justified through the giving of assent in an actual discourse between involved parties.16 Discourse ethics theory provides norms for the discourse, but does not itself provide more substantial moral norms. As several have pointed out, the theory seems to fit what is taking place in a committee case deliberation well.17 ,18 On this view, as on Tranøy's, the heterogeneous character and origin of the features put forward as morally relevant does not involve a bias towards inadequate moral perspectives. On the contrary, these various inputs are welcomed, and the CEC exemplifies the very dialogical situation required by the discourse ethics theory for practical justification of moral norms and judgments.

To sum up, two kinds of bias relating to moral theory must be addressed: First, the reliance on arguments from an erroneous or inadequate moral theory or perspective. From a given ethical perspective, ethical reasoning based in an incompatible perspective can result in biased reasoning. However, in the absence of knock-down arguments to disprove particular moral perspectives, a plethora of views about which theories and perspectives should and should not be regarded as relevant remain possible. Second, the rationalisation of a preferred conclusion by appeal to arguments that underpin one's preferred conclusion. This bias can result from theory pluralism and the injunction to uncover all relevant values and norms—the resulting moral smorgasbord could invite one to pick the values and norms that justify one's predetermined line of action.

Bias towards inadequate moral perspectives need not occur only on the level of moral theory. There can also be bias towards generally accepted moral norms or verdicts. In discussing a case involving a persistent vegetative state (PVS) patient, a Norwegian CEC stated: ‘When the diagnosis has been confirmed, it would be ethically correct to withdraw all treatment [including artificial nutrition and hydration]. To stop treatment is to let the patient die in a dignified way.’

Furthermore, the provision of artificial nutrition and hydration in this case was described as ‘futile’. The CEC's stated view invoked the authority of national guidelines, and is in line with what, in our experience, would be the almost universal opinion of Norwegian clinicians. However, it is well known that many clinicians and lay people around the world would disagree with this view of PVS, based on moral, religious and cultural understandings.19 Perceivably, some of the parties involved, for example, the relatives, could have held such a dissenting view (although they, in fact, did not in the present case). If they did, the CEC's bias would have been particularly problematic. In this case, then, the CEC was biased towards a moral view prevalent in its own cultural milieu.

Bias towards individuals’ perspectives and interests

The factual premises of the case always shape the deliberation. The CEC relies on the accounts of the case provided by clinicians, patients and relatives. Any of these stakeholders may acquire a larger influence on the committee or consultant than is warranted. In that case a bias has arisen.

In a case where a patient in a psychiatric ward had been treated with restraints for a prolonged period, a psychiatrist and department head who participated in the CEC discussion insisted that the use of restraints had been acceptable owing to conformity with the law's requirements. The CEC's discussion focused on the psychiatrist's point of view to the near exclusion of alternative perspectives and ethical factors.

Ideally, the CEC should not be biased towards any of the stakeholders. The patient's perspective is most easily overlooked. Some argue for a limited patient advocacy by the CEC to correct the imbalance.20 The opposite error can also occur, when a CEC considers the patient's interests to the exclusion of other morally salient points. The significance of bias towards the views of clinicians, patients or relatives is that ethical deliberation can be cut short, and that ethical premises can, as in the case above, remain only implicit, contrary to the stated goals of a CEC deliberation.

Bias towards the perspectives and interests of health-care professions

Finally, the CEC may be unduly influenced by clinical cultures and the interests of the healthcare professions. The consultant or committee is dependent on being on good terms with the clinicians, just as with the hospital management. The CEC's ambiguous position as neither part of the treatment team nor fully independent and external may contribute to this bias. In order to function well and to be relied upon in challenging cases, the CEC must have a certain standing among the clinicians. Therefore, there might well be an incentive for the CEC to adjudge cases in accordance with the preferences and interests of the professions—especially, perhaps, the physicians. Unpopular judgments or too critical questioning can be thought to alienate the CEC from the clinicians and hinder future cooperation and the flow of new cases. Furthermore, committee members are generally part of the same clinical culture, thus sharing many of the same (often implicit) assumptions and values.