Resolving ethical dilemmas in the NHS

Last week, a healthy baby was born from a woman who had been brain dead for nearly five months. The decision to keep the mother alive for so long must have been a difficult one for the doctors. This case reveals the ethical complexity of modern healthcare. Dr Daniel Sokol, a leading medical ethicist and clinical negligence barrister, says there is a need for dedicated specialists in clinical ethics.

Last month, in Washington DC, was held the 12th Annual Conference in Clinical Ethics Consultation. Hundreds of clinical ethicists from around the world met around the theme of ‘caring for the ethically complicated patient’.

The conference reflected the variety of ethical problems in healthcare. Do you tell a 6-year-old boy who can no longer speak and who is nearing death from incurable brain cancer that he will not wake up from the sedatives about to be given? How do you maintain the dignity of a patient so obese that 11 nurses are needed to lift the body off the bed to change the sheets? How do you respond to patients and family who, at the end of life, say “We’re hoping for a miracle”? How do you deal with patients who are admitted to hospital following a failed suicide attempt and who tell the medical team that, once discharged, they will try again? How much weight should you put on the wishes of severely burnt patients whose opinions may change once accustomed to their situation?

The conference revealed how the specialisation of medicine that started in the 1830s in Paris and which continues to this day is happening in the field of clinical ethics, with specialists for certain types of patients or conditions, such as neonatal ethics, paediatric ethics, neuroethics, transplant ethics, and even burn ethics.

In the 1980s, some hospitals in the United States sought the help of individual clinical ethicists to assist doctors and nurses with their ethical problems. The experiment proved a success and today all hospitals in the United States with over 400 beds have ethics consultation services. Many of the larger hospitals in Canada also employ clinical ethicists. This means that a healthcare professional, or sometimes a patient or relative, can request a consultation with a clinical ethicist with the goal of resolving an ethical problem.

Clinical ethicists come from a range of disciplines but are typically trained in medicine, philosophy, or law. They work in hospitals and, like other specialists, they can be bleeped by any member of staff in need of ethical advice. They can talk to patients, relatives and staff, and they record their recommendations on the patient notes. Some of them go on ward rounds, identifying any potential or simmering ethical problem before it flares up into full-blown conflict.

In June 2005, a working party of the Royal College of Physicians produced a report on clinical ethics support in the UK. One of its recommendations was that “There should be a review of the role of clinical ethicists in the NHS.” Ten years on, this has not yet been done. The issue is ignored. In the UK, there are still no full-time clinical ethicists.

The Mid Staffs hospital scandal in 2005, in which hundreds of patients died unnecessarily as a result of poor care, has shown the importance of compassion and high standards of ethics amongst all healthcare staff. The advances in medicine, the ageing of the population, the rise in obesity, and other social factors, create ethical as well as medical complications. The average clinician in the UK has little ethics support when faced with increasingly common and complex ethical problems. This is troublesome at a time when morale amongst medics is low and the risk of burn-out is high.

The law, ever-changing, also creates problems for clinicians. Landmark cases, such as those addressing the requirements of informed consent or the need to discuss Do Not Resuscitate orders with patients or relatives, take too long to reach the consciousness of clinicians at the coal face and lead to avoidable conflict and often to litigation. Clinical ethicists have an important educational role in healthcare institutions, bringing busy clinicians up to date on legal and ethical developments and ensuring that lessons are learnt from past cases. This will reduce the number of law suits and the overall costs for the NHS. In 2014/2015, the NHS received 11,500 new clinical negligence claims and paid out over £1 billion in damages. Many of the legal cases that end up on my desk in Chambers could have been avoided if the Trust had employed a clinical ethicist to help doctors come to grips with issues such as consent.

It is high time for forward-thinking NHS Trusts to experiment with clinical ethicists, as leading American hospitals did in the 1980s and 1990s. The cost is minimal and the potential gains for healthcare staff, patients and tax-paying members of the public are significant.