Dave Buehler

In light of the foregoing, we conclude that hospital attorneys, risk managers, and other advocates despite the immense contribution which they may make to the process and deliberations of ethics committees—have a unique role in the bioethical decision-making process, but one that neither requires nor precludes membership on such committees. This is not to deny in any way appropriate access to committees or their deliberations by such advocates. Indeed, we would argue strongly that hospital attorneys and risk managers, where there are reasons for including them in committee discussions, should be invited as consultants and participant-observers. Furthermore, we concur wit Gibson, who suggests that hospital attorneys have a teaching role which enhances the committee's understanding of relevant legal issues, cases, and decisions. this is especially true in individual case consultation. Ethics committees and institutional advocates both have important roles within health care institutions, but patients and hospitals are best served when these two agents collaborate without weakening or undermining their mutually distinct functions and priorities. This conclusion is based primarily on the widely acknowledged concern about conflict of interest as well as the more peripheral concern about loss of attorney/client privilege. However, we would argue that in all aspects of committee work, including self-education, policymaking and case review and consultation, these specialists in health law may often give expert advice and counsel to persons regarding a vast arrays of subjects. These include but are hardly limited to the following: Durable Power of Attorney for Health Care, Living Will Legislation, Malpractice Law, Orders Not to Resuscitate, Forgoing Life-Sustaining Treatment, Withholding Nutrition and Hydration, Treatment for Incompetent Patients, Proportionate vs. Disproportionate Treatment, and Suicide and the Law. HECs need to know how attorneys think and especially how hospital attorneys frame bioethical issues, just as they need to know how physicians and nurses think and respond. Even if hospital attorneys are not formally seated on HECs, they should participate in charting the currents in bioethics. Gibson feels that we need to re-examine the roles of the hospital attorney. Perhaps these advocates should be encouraged to wear more than just one “hat,” and for the rest of us to generalize about institutional advocates is both premature and prejudicial. When we stereotype attorneys with a generic label such as “institutional advocates,” we open ourselves to the dangers of an even narrower kind of “reflex advocacy” (11).To achieve open and honest dialogue, all voices and viewpoints must be heard. HECs that arbitrarily and totally exclude hospital attorneys from participation may exhibit the very close-mindedness they are seeking to eliminate. Yet this situation is at its core a paradoxical one: We cannot proscribe the advocate's role without constraining his or her effectiveness. Yet for the sake of their effectiveness we need to protect them from conflict-of-interest situations. Moreover, we also need to be certain that all points of view, including those that derive from the law, are given an adequate hearing by HECs.