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2009;85;449-450Postgrad. Med. J.Len Doyal and Lesley Doyalrole of clinical ethics committeesMoral and legal uncertainty within medicine: the

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Moral and legal uncertainty within medicine: the role ofclinical ethics committees

Len Doyal,1 Lesley Doyal2

Several years ago one of us (Len Doyal)was giving a lecture to a group of medicalstudents on a long-forgotten ethical issuein medicine. A student, who looked to bestill in the throes of the previous night’sparty, waved his hand and asked, ‘‘Yeah,but what colour is a really interestingethical dilemma’’. The answer thatsilenced him and brought laughter to therest of the class was, ‘‘Grey’’! Most of the

time, clinicians do not have to worry about ethical or legal problems, unlessthey work in particular clinical specialisa-tions where they are more common (eg,intensive care medicine). This is becausethe rights and wrongs of most clinicaldecisions are so obvious that there isuniform agreement about what to do,when to do it, and why. The basis of suchagreement lies in the widespread accep-tance of the clinical duties of care: protectlife and health, respect autonomy, be fairand do all three to an acceptable profes-

sional standard. These duties are easily understood and in most circumstancesthey call for a ‘‘black and white’’ inter-pretation.

Moral and legal uncertainty 

However, really interesting ethical dilem-mas in medicine are not like this. Whilethe principles of moral and legal reasoningremain the same, their application to‘‘hard cases’’ may be less certain, andpossible answers come in shades of grey.

 A quick look at the established duties of 

care shows why. Consider the duties of protection and respect. Clinicians may strongly disagree about how to interpretthese duties in practice. For example,surgeons are supposed to apply techni-ques that inflict minimum harm in orderto obtain maximum benefit. Yet inspecific circumstances (eg, treatment of prostate cancer), there may be disagree-ment between them about where this line

should be drawn. Equally, all clinicians aresupposed to allow patients to exerciseinformed choice over the treatments they receive. This means they are morally andlegally obligated to provide appropriateinformation about what they propose todo, why and with what risks. Yet howmuch information is appropriate for thesatisfactory fulfilment of this duty ?

 Again, in particular situations (eg, in

 A&E medicine), this answer may also beuncertain.

This lack of certainty becomes morepronounced when the duties of care arethemselves in conflict and disagreementarises about which should receive themost emphasis. Ordinarily, competentpatients can refuse to accept clinicaltreatment that they do not want. Herethe principle of respect trumps that of protection. Yet what are the limits towhat a patient can demand rather thanreject? Suppose a woman demands a

caesarean section on the grounds of convenience. Should her decision necessa-rily be respected? Equally, suppose a manquestions a Do Not Attempt Resuscita-tion order. Should respect for his desire forcardiopulmonary resuscitation trump aclinical decision that this will almostcertainly not extend his life? Again, suchcases may be ‘‘hard’’ in that there may bedisagreement about what constitutesacceptable ‘‘convenience’’ (eg, arrangingto fly to Australia to see a dying brother)in the case of the woman and what is a‘‘reasonable’’ attempt at unlikely survivalas regards the man (eg, to say goodbye tohis estranged brother who is on a planefrom Australia). Interpretations of theduties of care can differ greatly in theface of such cases.

Disagreements may also arise whenclinicians have different values that arerooted in even broader moral principles.This may then lead them to interpret theduties of care in different ways. Someargue, for example, that ethical judge-ments within medicine should primarily serve the public interest by maximising

the common good rather than the rightsand associated claims of individual

patients. Thus the patient who demandswhat will probably be futile cardio-pulmonary resuscitation will be seen aswasting scarce medical resources whichcan serve the interests of others who needthem more. Conversely, others argue thatthe rights of individual patients should be

prioritised, even when the public goodmay suffer. They might maintain that theman demanding resuscitation has led aresponsible life, paid his taxes, anddeserves a final chance for emotionalclosure with his brother. Similar disagree-ments will occur in other areas of medicine. What are the boundaries of good practice in obtaining informed con-sent from patients whose mental capacity is limited, for example, or in decidingwhen not to provide, or to withdraw, life-sustaining treatment from permanently brain-damaged patients?

Procedural principles for dealing with

uncertainty One thing is clear. Substantive moralprinciples that are in dispute will notprovide the means by which such dis-agreements can be resolved. This isbecause it is precisely the conflictinginterpretations of these principles—andsubsequently of the duties of care—thatpose the problem. It is sometimes arguedthat the moral virtue of individual andexperienced clinicians might lead to such

resolution. However, this is of little usebecause such individuals can and dodisagree. Indeed this is standard practicein medical litigation in the debatesbetween expert witnesses. The only hopefor a way out of moral uncertainty inthese circumstances is to accept that, inthe face of some hard cases, doctors mustalter their understanding of what a‘‘right’’ answer is. They should put theirtrust in procedural rather than substan-tive moral principles, that will at leastprovide the basis for the most rational

decision possible, given the clinical cir-cumstances at hand.1

There is nothing original about thisidea. Within both medicine and surgery,there are disputes between cliniciansabout the ‘‘right’’ diagnosis or ‘‘the mostappropriate’’ treatment plan—about thecorrect interpretation of relevant princi-ples of good clinical science. At their best,clinical management meetings, case con-ferences and grand rounds embody proce-dural principles designed to optimiserational decision-making about such dif-ferences. Rules of discussion and debate

are designed to ensure that relevantexpertise and evidence are heard, that

1 Queen Mary, University of London, London, UK;2 University of Bristol, Bristol, UK

Correspondence to: Emeritus Professor Len Doyal,

Queen Mary, University of London, Mile End Road,London E1 4NS, UK; l.doyal@qmul.ac.uk

Editorial

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the process is democratic, that corruptingvested interests are removed, and thatbullying based on professional seniority and power is banned—all principles of good procedural ethics. Clinicians engagedin such exchanges of views understandthat, whatever their disagreements aboutsubstantive principles behind the dis-

putes, the best possible decision must bemade either immediately or in a very short timeframe. Mistakes can still bemade, but this is a price that is worthpaying for procedures that will at leastensure that clinical deliberation is opti-mally rational.

The same principles of rational commu-nication and debate need to be deployed toresolve potentially intractable disputesabout what is morally rather than scienti-fically appropriate. Clinical ethics commit-tees (CECs) have evolved to try to meetthis need within a hospital environment.2

In the USA, hospitals are federally man-dated to have such committees, and they often play an important role in the work of their institutions. A recent and highly publicised example was the Ashley X casewhere it was proposed that a 6-year-oldseverely brain-damaged child with theapproximate mental age of months begiven a double mastectomy and hysterect-omy on the request of her parents.3 Againstthe background of much debate andconflicting moral values, a decision aboutwhether or not to proceed was made by 

the CEC for the hospital concerned. Thecommittee approved the surgery.

This does not mean that moral or legalargument about this or any other decisionmade by CECs about hard cases will stop.However, if it can be demonstrated thatthe original decisions reflected good pro-cedural ethics, then this will constitute astrong defence of their rational andpractical appropriateness.

It might have been expected that CECswould also have been integrated into UK hospitals, not only to help in the resolu-tion of hard cases but also to perform

important functions as regards the plan-ning and management of clinical care.

 Working in conjunction with relevantlegal departments, they can providevaluable input in the formulation andevaluation of various hospital policies

(on consent, confidentiality or resourceallocation for example), as well as pro-viding ethical and legal education andtraining for hospital staff.

Potential problems with CECs

However, the level of CEC developmentwithin the NHS has been very low. Whilemany hospitals do now have such com-mittees, it is clear that they are not asintegrated into hospital life as well as they might be.4 In this issue (see page 451),

 Whitehead et al5 describe some interestingresearch suggesting that very few clinicaldilemmas are actually sent to CECs.Building on the work of others, they outline some of the reasons for this: lackof sufficient institutional support fromhospital management, inadequate publi-city about the work of established com-mittees and concern on the part of 

hospital staff that, were cases to be sentfor review, this might pre-empt clinicaldiscretion and control. Under these cir-cumstances the authors mention a possi-ble alternative strategy for dealing withmoral indeterminacy: individual hospitalethicists to provide advice and supportconcerning hard cases. They rightly sug-gest that this alternative needs furtherexploration and research.

One of us (Len Doyal) worked as anethicist in a hospital environment formany years. In the course of this, he did

find that individual clinicians were moreinclined to consult him than to go to theCEC which he had helped to establish.

 Yet much of this contact concernedstraightforward ethical and legal issuesthat were subject to little controversy.Personal experience suggests that anindividual ethicist confronted with a hardcase will have the same problems of moraland legal indeterminacy that cliniciansthemselves face. Ethicists (notoriously)disagree with each other about the inter-pretation and application of principles topractice, just as clinicians do. Where hard

cases rule, so to speak, there will continueto be no substitute for procedurally appropriate collective debate and discus-sion in the form of CECs. Without them,individual ethicists will be left to do theirbest to replicate good procedural practice

on an ad hoc, and sometimes unsatisfac-tory, basis.

Hospital managements in the UK andelsewhere should be mandated to recog-nise this point. With some of the North

 American experience in mind, they shouldmore actively promote and support CECswithin the clinical environments for

which they are responsible. Provided thatclinicians are convinced that the terms of reference of such committees are advisory rather than directive, it seems likely thatthey could be welcomed and more fre-quently utilised. Of course, this presup-poses that the performance of suchcommittees sustains a high standard,and it is clear that standards will vary among committees just as they do amongethicists! More must be done to ensureuniformity in this regard. Clearly lowstandards of ethical consultation are nomore acceptable within an institutionalcontext than they are within clinicalpractice at the coalface.5

The Postgraduate Medical Journal wel-comes further debate about the resolutionof moral uncertainty in medicine andcomments about the role and effective-ness of CECs. We are particularly inter-ested in reports from clinicians aboutsuccessful and unsuccessful experiencesof such committees and how any pro-blems could best be solved. We lookforward to hearing from you.

Competing interests: None.

Provenance and peer review: Commissioned; notexternally peer reviewed.

 Postgrad Med J 2009;85:449–450.doi:10.1136/pgmj.2009.083063

REFERENCES1. Doyal L. Medical ethics and moral indeterminacy.

 J Law Soc 1990;17:1–16.2. Doyal L. Clinical ethics committees and the

formulation of health care policy. J Med Ethics2001;27(Suppl I):44–9.

3. Edwards SD. The Ashley treatment: a step too far, ornot far enough? J Med Ethics 2008;34:341–3.

4. Slowther A, Johnston C, Goodall J, et al .Development of clinical ethics committees. BMJ

2004;328:950–2.5. Whitehead JM, Sokol DK, Bowman E, et al .

Consultation activities of clinical ethics committees inthe United Kingdom: an empirical study and wake-upcall. Postgrad Med J 2009;55:451–4.

6. O’Reilly KB. Willing, but waiting: hospital ethicscommittees. http://www.ama-assn.org/amednews/ 2008/01/28/prsa0128.htm (accessed 1 Jul 2009).

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