Before entering law, I wondered what to do with a graduate degree in philosophy. This was at a time when the job market for academic philosophers was not good, and some enterprising students with advanced degrees created businesses involving philosophical consultations for individuals and businesses.
Shades of Monty Python…
Humour aside, there were legitimate worries philosophy counseling occasionally crossed over into territory better dealt with by psychiatrists and lawyers. Absent that training, and a stronger stomach for continental philosophy, I wasn’t about to hang my shingle.
Much more interesting was the way ethics consulting was taking hold in medical hospitals and research centers. This shifted the burden from institutional ethics committees composed of doctors, to clinical ethicists with specialized training in the discipline. It promised the practical application of moral philosophy to real world problems, guided by this injunction:
…the ethics industry needs to be rooted in clinical practice and not in armchair moral philosophy.
Nowhere is that more clear than in a pediatric oncology ward.
It has been over two decades since the introduction of clinical ethics consultations, and the legal implications still remain unclear. However, there has been some discussion of liability in legal and bioethics scholarship. For example:
- David N. Sontag. Are clinical ethics consultants in danger? An analysis of the potential legal liability of individual clinical ethicists. University of Pennsylvania Law Review. (Dec 2002) 151:2 667.
His conclusion: “don’t give recommendations”.
To which I respond, without recommendations, why bother with an ethics consult? Just saying, “Here’s the ethical map, read it for yourself” only amounts to pointing in the direction of the bioethics section of the library (Dewey Decimal #170). It also promotes a professional moral relativism that confuses patients, and doesn’t say much for the moral convictions of clinical ethicists.
For further reading, with some literature about institutional review boards, see:
- Marjorie Ellen Zettler. Law and Ethics in Medicine: Trials and Tribulations of the IRB Member. University of Toronto Medical Journal. 80:3 (May 2003) 200.
- Daniel L. Icenogle. IRBs, Conflict and Liability: Will We See IRBs in Court? Or is it when? Clin Med Res. 2003 January; 1(1): 63–68.
- Anderlik MR, Elster N. Lawsuits against IRBs: accountability or incongruity? J Law Med Ethics. 2001 Summer;29(2):220-8.
- Noah BA. Bioethical malpractice: risk and responsibilities in human research. J Health Care Law Policy. 2004;7(2):175-241.
- Rich BA. Introduction: bioethics in court. J Law Med Ethics. 2005 Summer;33(2):194-7.
- Forster HP. Legal trends in bioethics. J Clin Ethics. 2000 Winter;11(4):373-82.
- DuVal G. Liability of ethics consultants: a case analysis. Camb Q Healthc Ethics. 1997 Summer;6(3):269-81.
- Spielman B. Invoking the law in ethics consultation. Camb Q Healthc Ethics. 1993 Fall;2(4):457-67.
