Month: September 2023

The Ethical Conundrum of Healthcare Ethics Committees

Ethics committees have been a condition of Joint Commission accreditation since 1992, yet there is massive variation in their implementation and use. They should not replace the dialogues of interprofessional team members with patients, families, or each other.

There’s been a recent uptick by case managers of their patient referrals to hospital ethics committees. This topic is near and dear to me, especially having served as the chair or co-chair of several acute care-based ethics committees over the years. The industry demand for decreased hospital utilization and length of stay has meant a shift in how ethics committees are viewed and often utilized. We’ve gone from traditional referrals, as in defining a treatment plan when practitioners define care as futile or a patient lacks advance directives, to when an individual refuses to accept a discharge plan. I’ve heard of situations where ethics committee consults are tapped should a patient be “non-compliant” with their treatment; this is language that I challenge at every opportunity and my recent blog on this topic reveals just how much. But I digress….

Ethics committees have been a condition of Joint Commission accreditation since 1992, yet there is massive variation in their implementation and use. The Joint Commission standard is clear: “healthcare organizations must have a mechanism in place to develop and implement a process that allows staff, [patients], and families to address ethical issues or issues prone to conflict.” Yet, the details of that mechanism are left to the discretion of each organization and therein lies the conundrum and challenge!

The Power of Ethics Committee 

The requirements for ethics committees were driven by increasing patient situations that involved a lack of clarity between patient and family wishes, expectations for treatment, the provider’s prognosis, and/or the patient’s treatment plan. The case of Karen Ann Quinlan is often viewed as that legal landmark to set the precedent for formalization of bio-ethics and ethics committees in hospitals. In April 1975 at the age of 21, Ms. Quinlan became unconscious after consuming Valium with alcohol while on a crash diet. She lapsed into a coma, followed by a persistent vegetative state. After a lengthy legal battle, the New Jersey Supreme Court allowed Ms. Quinlan’s parents to disconnect the respirator, affirming the choice she would have made; Karen lived until 1985. Other patient situations would follow and continue to appear, Terry Schiavo to Brittany Maynard and David Adox. The real-life experiences of these individuals have bolstered the vital role of ethics committees as one firm pillar of today’s healthcare process, leveraging the industry’s ethical principles of autonomy, beneficence, fidelity, justice, and nonmalfeasance.

Misconceptions Run Amuck

Despite clear guidelines for ethics committees, organizations can have a varied understanding of their moving parts. Among these points of confusion can be what members of the interprofessional team should be involved, how many persons should serve and for how long, the amount of onboarding required, and scope of each member’s role. Even the amount of work expected can prompt a moment of pause. Ethics committees are too often developed haphazardly and without a formal plan. The consequences of these actions yield an Ethics Committee in name only, which devalues the role of this critical resource for patients, their families, and the interprofessional teams that care for them. 

One of the largest misperceptions of ethics committees lies in their true function. Despite recent popular belief, ethics committees are not used to tell patients, their families, and members of the interprofessional team what to do. Ethics committees review the clinical nuances of individual patient situations and documentation from interprofessional team members to make sure the wishes of the patient and/or their legal representatives are acknowledged. This may be specific to end-of-life decision-making, reviewing futility of care determinations by practitioners, or recognizing the rights of patients to refuse care or treatment.

Ethics committees play a vital role is reviewing that the care rendered is done in accordance with all Federal and State laws and regulations. One of my physician co-chairs used to say, “Ethics Committees step in when the treatment team has employed their due diligence to engage, assess, and communicate with the patient and family, whether through informed consent, shared decision-making, or other collaborative efforts (e.g., team and/or family meetings, care coordination rounds). Anything less reflects incomplete work by the team.”

Functions of Ethics Committees in a Changing Practice Climate

It might seem optimal to involve the ethics committee’s objective lens for review of discharge planning processes, such as when a patient refuses to go to a particular nursing home in deference to another facility or plan. However, that can also be a misuse or critical resources. Ethics committees should not replace the dialogues of interprofessional team members with patients, families or each other.

Ethics Committees have three basic functions:

  • Consultation:
    • Ensure training and support for committee members and consultants.

    • Provide consistent subject matter expertise for cases requiring formal ethics evaluation and recommendations.
    • Develop and implement evaluation metrics to ensure quality improvement, and,
    • Develop appropriate reports, publications, presentations for both internal personnel and external strategic partners.
    • Promote ethical leadership behaviors, such as explaining the values that underlie decisions, stressing the importance of ethics, and promoting transparency in decision making.
  • Education
    • Assure knowledgeable ethics committee members.
    • Provide appropriate education to the organization (e.g., trainings, journal articles, reports, available literature on professional resource trainings and conferences).
  • Policy review and development

In recent years, ethics committees affiliated with academic institutions and large healthcare systems have advanced into comprehensive ethics programs. A growing number of healthcare organizations integrate ethics from the bedside to the boardroom (University of Washington, 2023).Others provide consultations in response to non-clinical ethics questions, such as identifying and remedying systems-level factors that have the potential to induce or exacerbate ethical problems and/or impede their resolution, as in staffing issues from workforce shortages. A valuable article recommends key foundational principles to:

  • Strengthen the position of ethics committees in hospitals, 
  • Ensure continuous supervision over committee formation and meetings, operations and decision-making processes, and
  • Define how committees’ decisions are shared with involved hospital stakeholders and staff.

Case managers can find out more on ethics committees, the seminal cases that drove them, and innovative ways to engage with them in Chapters 2 and 4 of The Ethical Case Manager: Tools and Tactics available on Amazon.

Seeking Social Media Recommendations: The Ethical Quandary for Case Management

Case managers and other healthcare professional commonly ping “friends” or tag “connections” for resource info from treatment and provider recommendations to specific home health agencies and skilled nursing homes. Complex patient circumstances become group chats. After all, there’s no harm in seeking consultation or recommendations, right? Read how unintentional posts become ethical and legal missteps, and how to best manage them.

The discharge planning process always moved quickly, but these days it’s on steroids! Case managers face intense pressure to quickly transition patients to that next level of care, or home. Whether you case manage for a hospital, an MCO, or a community-based agency, you need information when you need it! You seek answers to questions “in the moment” and that is usually not the workplace! Social media has become fastest way for case managers to quickly get resource information on how to access what you need, and when you need it!

More and more new case managers are entering the workforce than ever before. Their onboarding happens at warp speed, though learning discharge planning resources can take time; they also change rapidly. Case managers and other healthcare professionals commonly ping “friends” or tag “connections for needed resources, from treatment and provider recommendations to specific home health agencies and skilled nursing homes. Complex patient circumstances become group discussions where colleagues to weigh in on management of everything from addiction and family dynamics to “tough to place” patients, or those with chronic readmissions and ED visits. Access to costly prescription drug access, transportation, and other health-related social need are also popular topics. After all, there’s no harm in seeking consultation or recommendations, right? I get countless emails and queries about this topic, so decided to write a brief blog post to guide the masses.

HIPAA Breaches, Penalties, and Professional Sanctions

Actually, there are ethical, and often legal pitfalls of posting these recommendations. Despite a case manager’s best intent to seek guidance, these types of posts can easily and unintentionally become HIPAA breaches. This may translate to financial penalties for the case manager and their employer, or potential sanctions or reprimands against one’s professional licensure and case management credential.

It can be common to see these posts within professional groups or communities. You know how it plays out. Limited information is posted about the patient, but then questions are posed by connections or group members. For each question and with each answer, more ePHI is inadvertently released. Ultimately there is just enough data for the patient or their family to be identified. It may not be one piece of information that leads to a HIPAA breach, but the collective discussion. This might include:

  • Posting the names and locations of potential facilities for transfer
  • Posting the age, psychosocial information about family demographics, or unique characteristics. 
  • Posting the name of the health plan for the patient
  • When a case manager’s social media profile includes information about their current employer
  • Providing psychosocial information on a patient who resides in a community of under 20,000 persons.

What’s the best way to handle obtaining these recommendations?

There are a series of ways that case managers can consult with colleagues and heed HIPAA and other ethical and legal requirements for patient privacy and confidentiality:

  • Use the least information possible about the person (or their family members) to obtain needed guidance and be mindful of the amount of detail provided (e.g., use obesity vs. a specific weight).
  • Make sure all necessary permissions for release of information documentation are clearly signed.
  • Move recommendation dialogues offline (e.g., emails, telephone calls) 
  • Heed those HIPAA and ePHI guidelines
  • Remember, all disciplines have unique privacy and confidentiality guidelines listed in their standards of practice and codes of ethics; many have additional social media policies with detailed parameters.
  • DO NOT FORGET that there are also distinct case management standards, guidelines, and ethical codes for most credentials addressing the legal parameters for use of health information technology, electronic communication, seeking consultations, informed consent, and associated privacy and confidentiality requirements (e.g., ACM, CCM, CDMS, CMC, CRC, RN-CMGT). All board-certified and credentialed case managers are beholden to those requirements. 

NOTE: Detailed information on this topic can be found in Chapter 7: Ethics is What You Do While Everyone Watches: Health Information Technology, in The Ethical Case Manager: Tools and Tactics by Dr. Ellen Fink-Samnick published through Blue Bayou Press and available on Amazon.

DISCLAIMER: This blog post is meant to provide professional recommendation and does not supersede formal legal guidance. All case managers are strongly urged to review the the regulations and requirements for their individual licensure scope of practice, requisite case management and other formal credentials, plus relevant risk management and compliance policies and procedures for their employer.