#### **Method as the Lens to View the Field of Clinical Ethics**

How does this characterization of method in ethics consultation as a practice help us to understanding the field? First, the underlying concept of a practice requires us to focus on the actual "doings," e.g., the actions, cognitions and perceptions of ethics consultants actually engaging in consultation. Second, viewing ethics consultation as a practice has the important implication that the question of method has to be regarded as a practical, and not a theoretical, matter. The rules involved in ethics consultation are first and foremost enacted and are phenomenologically manifested in and through the actions, cognitions, and perceptions of consultants. The rules are not and cannot be reduced to a formal code or set of guidelines or procedures that might be followed like a recipe. Instead, the rules, even when articulated linguistically, as they certainly must be for various legitimate purposes, are just abstractions from the lived experience of the practice and, importantly, they are dependent upon that practice for their ultimate meaning and justification. In this sense, statements about ethics consultation methodology, and theories of ethics consultation, are *secondary* to the actual practice itself.

Formal statements of rules of practice, of course, have a purpose. They permit individuals without directly relevant experience in doing the actual consultation to have meaningful discussions about it and they can have proactive effect in shaping the actual doings of ethics consultants. So, for example, understanding patient autonomy and patient rights, the right to information and to personal medical decision-making, provide a normative, conceptual framework for undertaking actions such as directly communicating with patients or their surrogates rather than relying upon the statements or reports of health professionals. But simply *knowing* or *understanding* the concepts of autonomy and medical decision-making does nothing to provide the communicative, interpretive, and decisional skills that are exercised by consultants actually engaged in ethics consultations as they go about respecting patient autonomy. These skills, the putting into action, as it were, of the ethical and legal concepts of patient rights are acquired and developed through the experience of actually performing ethics consultations – and not through knowledge as such. In other words, the knowledge of any doing or practice is properly and primarily expressed in the doings themselves, the actions that make up the practice. Like all practical activities, competence in ethics consultation is fundamentally acquired through experience, through learning and repetition, and not primarily through cognitive or intellectual learning. For novices in ethics consultation, the articulated rules or guidelines can help, but experienced ethics consultants, like experienced practitioners in any field, operate with rules in the background as it were. The rules come to be embodied and habituated in the actions of competent ethics consultants as they do in competent practitioners in any field.

In this sense, the rules of ethics consultation can be thought of as performative. In the philosophy of language, J. L. Austin introduced the concept of a *performative*

as a distinctive type of speech act (Austin 1962). The uttering of a performative is, or is part of, the doing of a certain kind of action, the performance of which is not just a "saying" or "describing" something, but essentially a doing (Austin 1962: 5). Whereas Austin was primarily concerned with speech acts as a mainly linguistic phenomenon, ethics consultation involves not just pronouncements as such might be articulated in a recommendation at the end of an ethics consultation, but in various other communications and actions. Since ethics consultation involves complex analysis, interpretation, communication, as well as reflection on the information associated with the clinical case, performative speech acts in Austin's sense is only one component. Even with respect to speech acts alone, I tend to agree with Bach and Harnish (1979), who claimed that performatives are successful only if recipients infer the intention behind the literal meaning. So, when regarded solely as speech acts, performatives are acts of the social phenomenon and process of communication and involve the social construction of meaning. Even performative speech acts such as "I pronounce you man and wife" succeed not by conformity to convention as Austin seems to have it, but by the recognition by and acceptance by others of the intention of the person who does the communicating. The occasion of the marriage ceremony in which the pronouncement is articulated by a duly constituted official is itself a social construction with a frame of meanings. These meanings are enmeshed in these social frameworks. The success of performative speech acts as communication thus depends not only on an audience to identify the speaker's intention and, in an important sense, to accept it, but also to understand and accept the background normative framework for the recommendations.

Despite the limitations mentioned, the linguistic concept of performative utterances is helpful to make an important point about ethics consultation, namely that as a practice ethics consultation essentially *is* nothing more than the various actions that constitute the meanings of the individuals involved in performing the ethics consultation. As ethics consultation services have become accepted in healthcare institutions, the consultations in many places take on a ceremonial aspect. In some, there is the ceremony of the family meeting or the healthcare team meeting in which crucial discussions occur and decisions are made. In other settings, ethics consultations are performed along the lines of clinical consultations by individual consultants or teams to function independently in the consultative capacity and independently make judgments about whether team meetings or family meetings are appropriate. In either approach, the meaningfulness of statements made in the course of ethics consultation are therefore fundamentally dependent upon the wider set of social meanings that provide a framework of acceptance of the particular doings of ethics consultants by patients, families, and health professionals (Agich 1995, 2000). This dependence can, however, become an uncritical habit or tradition that can function and be invoked unreflectively to justify recommendations or decisions. Such a routinization of actions—and justifications in ethics consultation and their acceptance by the "audience" of patients/families and health professionals, thus poses the danger that ethics consultation will itself become routine and occur without significant critical reflection. I will return to this point when I discuss the Zadeh Scenario in a moment.

To summarize, the question of method of ethics consultation is fundamentally tied to the complex construction or constitution of the social reality of ethics consultation in the clinical care of patients. Unlike performative utterances, which are mere speech acts, ethics consultation is much more complex in that it involves a performance that includes not just distinctive performative communications (as in the decision-making or the making of recommendations by ethics consultants, which are so often the focus of much discussion of clinical ethics cases) but also the constitution of meanings which comprises the interpretation and analysis of the clinical ethical circumstances of the case by the ethics consultant. The analysis and interpretation of actions and communications of those involved in the clinical care of the patient is thus a complex process that melds the meaning of ethical concepts, principles, and theories with the constructed and uncovered clinical and value meanings of the case.

#### **Method as a Lens to View Cases: The Zadeh Example**

That said, how a case is understood and represented does disclose a great deal about the adequacy of the processes, namely the actions and communications, that make up an ethics consultation. Assessment and analysis of the way a case or clinical problem is presented is one foremost responsibility of ethics consultants and consultation services. Unless they fully accept this responsibility and act accordingly, their role will lack that structure and purpose that is central to the method of ethics consultation (Agich 2009b). The rules of the practice of ethics consultation are normatively framed in terms of helping to achieve an ethically justified outcome in a case. This is accomplished by providing advice on the ethical problems, confusions, conflicts, and questions that arise in the course of patient care. Defining what are the appropriate and defensible *ethical* concerns and distinguishing them from other concerns involved in patient care is rightly recognized as a central competence of ethics consultants (ASBH 2011: 12). Otherwise, consultants will function less as independent professionals and independent moral agents than as functionaries for others: health professionals or family members. If this happens, their role will shift from performing an *ethics* consultation to providing some other service such as emotional support. Providing emotional support, of course, is not unimportant in ethics consultation, but it is not the primary function of a competent ethics consultant. In ethics consultation, the primary function is to provide analysis and advice of the ethical and value concerns raised in the case. The primary focus should be the concerns relating directly to the ethically best course of care for the particular patient, but other important concerns such as supporting the family or health care providers as they deal with the stresses involved in the case should be ancillary. In cases where the decision-making legitimately falls to surrogates, because the patient lacks decisional capacity which has been appropriately assessed, then providing emotional support for the surrogates becomes more important, but it is still secondary to addressing the ethical concerns and questions arising in the case.

How do these points on method help us to understand "The Zadeh Scenario"? Although I concur with the observations and criticisms so well-articulated by Frolic and Rubin (2018), Armstrong (2018), Tarzian (2018), Hynds (2018), and Rosell and Johnson (2018) that "The Zadeh Scenario" raises deep questions about the role, including the specific actions, of the consultants involved, as well as normative questions, I will not pursue them deeply. Suffice it to say that it is troubling that the narrative omits mention, much less critical discussion, of the patient's wishes and values or reference to the ethical, legal, healthcare institutional policy, or professional guidelines which emphasize *patient* rights and should provide guidance about the responsibilities and limitations of the role of surrogates, family or otherwise. Also, no mention is made of the existence of an advance directive or discussions with the patient when she was functional about her preferences and values. Instead, the focus throughout is on decisions about specific medical interventions that are simply *presumed* to be within the legitimate and, indeed, the sole purview of the patient's family rather than the patient herself or even, it seems at points, of the physicians. These omissions are troubling. Since the form of this narrative is not a formal ethics consultation report, it is hard to judge whether these concerns were ever addressed in the course of the actual consultation or were simply omitted from the narrative, so I will leave them aside. Pointing out these concerns, however, raises a question about the purpose and nature of "The Zadeh Scenario," which affects how to approach it. Is it a narrative of an ethics consultation *as an ethics consultation* or rather a narrative of events and recollections about a long-running set of involvements with a particular set of family members, and health professional to a lesser extent, that occurred for a particular ethics consultant? There may be other alternatives, of course.

Given my focus on method, I will discuss some of the elements of the narrative that reveal the method used or as it is reported in the consultation, rather than dwell further on the more substantive matters. My focus is thus primarily on process aspects, such as communication among the consultants and the use of ethics consultation records, since these are the most prominent in the narrative. In the case of the narrator, Finder, we have his direct statements about some of his thoughts and actions, which we accept at face value, but in the case of his colleague, Steve Moore, we only have Finder's report and no direct report by Moore of his actions and intentions. With these limitations in mind, we can nonetheless ask what methodological features stand out.

There are four that I will discuss: first, timely and direct communication among members of the ethics consultation service regarding on going cases, i.e., in this case Drs. Moore and Finder, who are the only ones identified; second, written ethics consultation notes and records; third, the role projected by the ethics consultants through their actions and communications in the case; and fourth, the dynamic character of ethics consultations, which is most evident in complex and protracted consultations.

First, Finder's narrative provides a wonderful example of effective timely and direct communication among members of an ethics consultation service regarding on going cases. Although the consultation model demonstrated in this narrative is the individual consultant, effective and timely communication among members of ethics consultation teams or even committees in concurrent consultation is equally important. In this narrative, communication is reported to have occurred through the use of records of various sorts, including the electronic medical record and, presumably, of ethics consultation service records that it appears Finder reviewed at points and added to. The communication among the ethics consultants in this narrative is especially effective, because although Moore was directly involved over a long period of time, Finder was remarkably aware of many of the salient features of this involvement and details of the case. This included not only the content, but the tone and style of communications that Moore had with family members and other health professionals. Communication among ethics consultation service members is essential. Face-to-face oral communication and discussion about on-going cases is ideal, though not likely to occur regularly, such as in a team consultation settings in which members rotate. For this reason and because memory is not always reliable, as Finder noted at one point where he states that he wanted to write down his thoughts while they were fresh, good consultation service records are important. They can take many forms and a discussion of these forms is beyond the scope here.

However, consultation service records should include relevant factual data such as names and other identifying information of individuals involved, dates of service and a summary of the interactions with individuals, a summary of discussions, and impressions and interpretations that guide the consultant. Ideally, ethics consultation service records should include also some reflection on the normative guidelines relied upon and ethical analysis as it occurs in the case of the information encountered and the ethical justification or explanation of the actions, including recommendations made by the consultant. Such an ideal ethics consultation record would provide not only a summary set of statements of the encounters and actions that make up any ethics consultation, though each might be disconnected of course by the temporally discrete character of a case as it develops, but it should also include reflection on the individual instances of analytical, interpretive, reflective, and communicative actions that constitute the process of doing ethics consultation. Ethics consultation service records that primarily focus on recommendations made and the clinical circumstances or facts underlying those recommendations are, quite frankly, less useful and less likely to contribute to the development of a reflective practice, which I have argued should be the ideal for ethics consultation (Agich 2015).

Second, as already noted above, the narrative makes clear the importance of having and using written ethics consultations notes and records for ongoing ethics consultations. Such records are essential for quality improvement. They can provide a basis for peer review of the actual processes that make up complex ethics consultations and provide opportunities for reflections on how to improve existing practices. Having a record of the specific ways that individual ethics consultants attend to the questions or issues can point to differences in approach, which can be useful guides for ways to improve the overall practice of the consultation service. If the consultation service records only (or primarily) include documentation of case-related decisions, recommendations, or their explanations and justifications, it will be easier to miss those component actions that constitute and frame these outcomes. The importance of this point is easiest to see if one considers how one gains confidence and experience in any practical endeavor. Focusing on the outcome, the product produced, for example, by a craftsman cannot show the actual methods, the processes and procedures, and the underlying capacities and skills used to generate the result in question. To be able to effectively implement quality improvement in ethics consultation services' purposes, the review of cases must include critical discussion, reflection, and analysis of the processes and procedures undertaken by consultants as they do their work.

Third, the role that ethics consultants projects through their actions and communications is aptly illustrated in this narrative. Whether "The Zadeh Scenario" is an accurate or, rather, a full portrayal of the actions and communications we do not know, but taken at face value it is clear that several important normative ethical considerations are strikingly absent from this narrative. Instead, we have a picture of ethics consultants who seem to understand and so enact their primary role as that of providing "support," though it is never made clear how "support" is understood. What is provided is not just supportive listening to family members or emotional counseling, but making and reinforcing decisions about medical care that solidify the prerogatives of family members to make decisions. Since there is no discussion of patient wishes or of any deep exploration of patient values except as marginally provided by family members, the role that is projected in this narration is that of a sensitive communicator and counselor for family and, to some extent, health professionals, but not of individuals who are engaged in what might typically be called an *ethics* consultation. I say "to some extent," because the salient issue of moral distress of health professionals involved in this case over time is sidestepped in this narrative. This raises important issues about the usefulness of "The Zadeh Scenario" as a model for revealing how normative ethical considerations guide methodological choices made in doing ethics consultation, but, again, discussing that more fully is a concern beyond the scope of the present chapter.

Fourth, this narrative admirably demonstrates the dynamic character of ethics consultation. Not all ethics cases develop over long periods of time, but even within rather straightforward consultations there are episodes, such a receiving the request, validating or interpreting the issues or questions raised in the request, etc., that have specific structures and within which various actions and intentions of the consultants are displayed. The purpose of good or comprehensive ethics consultation records, whatever their form, is that the processes followed by the consultants in the case as it develops over time are recorded and able to be analyzed. Since ethics consultants perform multiple kinds of actions, good records capture and express these actions and interpretations within the broad set of social interactions of multiple individuals involved in the case as they evolve over time. The dynamic character of ethics consultations is, of course, most evident in complex and protracted consultations that bring ethics consultants together with patients, family members, and health professionals over longer periods of time. But, even in straightforward ethics consultations involving, for example, providing a reminder or information about the applicability of a hospital policy to a case, the question or issue that is raised occurs at a particular time in the course of the care of a particular patient and the question or issue is raised by a particular individual involved in the case. Even in dealing with straightforward ethical questions or issues, ethics consultants thus step into and act as agents in patient care at particular point in the case's development. The point of entry, though not much discussed, can affect how the consultant functions and whether the consultant is able to function effectively as an *ethics* consultant.

#### **Conclusion**

The dynamic character of clinical ethics cases is not surprising given the highly dynamic character of patient care, especially the care of patients who are seriously ill. This means that a substantial amount of information relevant to the ethical analysis of the case such as clinical data, no matter how seemingly straightforward, always have a timestamp and can expire quite quickly as circumstances change. Interpretations of data and clinical findings not only evolve over time, but are often diverse. Attending physicians, consultants, and other involved health professionals, not to mention multiple family members, can have different and even divergent understandings of the same "facts." This complicates the communicative process inordinately and can be one of the subtle points of divergence of opinion that is a source of conflict. Because ethics consultation typically occurs in the course of patient care in healthcare institutions which are also inherently complex, involving multiple healthcare professionals interacting over time and across shifts, ethical assessment must be recursive.

Moreover, good communication and reflection on that communication is a fundamental prerequisite for ethics consultants involved in a case. This means that as the patient's medical condition develops over time and as changes occur in healthcare personnel caring for patient and in the involvement of various members of the patient's family, the consultant must constantly reappraise and redefine the ethical problems and challenges. In the latter case, the family of a patient present at the bedside may cycle through multiple individuals, which complicates communication and decision-making for all involved. This fluid character of patient care underscores the importance of critical reflection by ethics practitioners on an ethics consultation service in ongoing cases. When this reflection is weak or omitted, the involvement of the consultant loses focus on the primary ethical responsibilities associated with ethics consultation.

In this commentary, I have focused on the question of method in ethics consultation and outlined its salient features stressing the point throughout that ethics consultation should be a reflective practice. It is important to note that "The Zadeh Scenario" provides detailed description of the actions, communications, and reflections by Finder on his involvement in the case; it also includes statements about the actions and involvements of Moore. However, this narrative seriously omits critical reflection on normative aspects of the case or the purpose of the consultation as an ethics consultation. This appears to be at the bottom of what bothers each of the peer reviewers. Although "The Zadeh Scenario" does not provide a strong exemplar of critical reflection on ethics consultation, we cannot conclude that it did not occur. Its absence in the narrative, however, raises significant questions about the adequacy of this form of narrative as a narrative *of an ethics consultation* from which we can gain understanding and gain greater insight into how to improve our practices. That being said, the narrative does serve as a very useful occasion to reflect on the nature of method in ethics consultation.

#### **References**

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## **Standardizing the Case Narrative**

**Lisa Rasmussen**

#### **Introduction**

This chapter is a meta-commentary on case commentaries, in which theoretical questions about method in clinical ethics consultation meet the concrete exigencies of the practice. The difficulty in this task is looking through the lens of a case narrative that is necessarily limited (because it is a distillation of an experience lived through days and weeks of interaction with many people), and a set of commentaries that are themselves limited. The view this perspective may give of a consultation is not the same as the view that might result from an observer accompanying a consultant throughout the case. For example, commenters in this volume uniformly note additional information that was not provided in an already long case narrative. We have no evidence about whether these issues were broached in the case consultation itself; what we *do* know is that these issues did not appear in the narrative. As a result, this is a book about narrative composition as much as it is about methods in clinical ethics consultation.

But questioning narrative composition of consultation summaries does generate profitable discussion about the field of clinical ethics consultation itself. As we move towards standardization and quality improvement in clinical ethics consultation, peer review is a vital component for evaluating consultants and consultations. In this, we are hampered by the fact that there is no sustainable mechanism for allowing peer review of full consultations, and even less chance of observing a single consultant's practice over many cases. Instead, we have the proxy (as currently utilized in the Attestation model [Kodish et al. 2013]) of the consultant's case study. A flaw in this model is the possibility that excellent consultants can be poor writers, and that gifted writers may be poor consultants (where by "gifted" and "poor"

L. Rasmussen (\*)

University of North Carolina – Charlotte, Charlotte, NC, USA e-mail<EMAIL_ADDRESS>
<sup>©</sup> The Author(s) 2018 151

S. G. Finder, M. J. Bliton (eds.), *Peer Review, Peer Education, and Modeling in the Practice of Clinical Ethics Consultation: The Zadeh Project*, https://doi.org/10.1007/978-3-319-90955-4\_11

writing I am referring to narrative compositional choices in addition to word or style choices). If we are to be evaluated by our case narratives, we must try to control for features irrelevant to quality evaluation, such as narrative ability, rhetorical skill and seductive rococo vocabulary.1

We may also want to control for the consultant's perspective: What we choose to accent in a narrative is what is important or noteworthy about the case *to us*. 2 We may not be lying or adorning a story, but we are choosing a perspective from which to view a case, and when those choices are made in composing the case study, other possible choices become invisible. There are standard elements that may be almost universally expected in case summaries (such as identifying whether a patient is competent or has decisional capacity, and if not, who the decision maker is and under what governing rule [legal default, HCPA, etc.]), but many aspects of what is noteworthy about a case will be idiosyncratically determined. A person sensitized to issues of faith, gender, culture, or socioeconomic status may focus on or preferentially include these issues, where another person might personally note the presence of such features during the case consultation itself but not center or even mention them in a particular case narrative if they do not play a significant role.

The conclusion I have arrived at after considering "The Zadeh Scenario" and accompanying peer reviews is that if quality attestation is to be largely evaluated based on the case narratives submitted to the judging panel, we must develop a fairly uniform standard for case reports themselves, which is distinct from developing a uniform standard for how a consultation is conducted.3 In what follows, I note several features of the peer reviews accompanying the Finder case that belie different

<sup>1</sup>For example, consider some of the ways commenters describe Finder's narrative: "wondrously rich;" "polished;" "wonderfully detailed and engaging;" "rich and thoughtful;" a "gift." Though some of this praise is (rightfully) due to gratitude for the fact that Finder makes himself vulnerable in this new mechanism for peer review, it is also an honest assessment of the way in which the narrative is written. Clearly the commenters did not shirk from challenging elements of the narrative due to their praise, but we know from the fields of psychology and sociology that style affects assessment. For example, in the "illusory effect," a message delivered repeatedly is believed more frequently. By repeating claims about "caring for" or "listening to" a patient or family, a consultant could affect an assessment of the case narrative (and thus, the consultation itself) as including evidence that a consultant had the right attitude towards the participants.

<sup>2</sup>As Tod Chambers puts it in his volume about the topic of written cases, *The Fiction of Bioethics*, "What ethicists have generally ignored is that cases – the data by which they test the relevance of moral theory – are fictions. That is, they are made up, constructed and thus follow conventions of representation that *inevitably bias how one understands this information*" (1999, p. 10; emphasis added).

<sup>3</sup>Obviously in this case, Finder and Bliton have not conceived of the volume as focusing on what they argue is a paradigm case narrative. The purpose of the case narrative for the volume and the purpose of case studies written as part of a dossier for quality evaluation may be quite different. Therefore my comments are not directed at this volume's device in particular, but rather, at the more general activity of evaluating consultants and consultations via written reports. (This also raises the question of what to call such writing: "case study" implies a quite distilled summary of a case, while "case narrative" implies a more contextualized account that invites the reader to consider stakeholders more as characters, with personalities, interior lives, and motivations. A discussion of what we should expect from cases summarized for attestation purposes should start with what to call them, and what general tenor they should have within this continuum of possibilities.)

notions of what should be included in a case summary. This may -- or may not -- in turn belie different notions of what questions should be explored as part of doing clinical ethics consultation as a practice.

#### **Disparate Targets of Commentaries**

The overall perception a reader of the case and peer reviews is left with is of an impressionistic landscape. Reviewers pick and choose, some working chronologically through the case, others simply picking up pieces they find noteworthy and elaborating on their presence or absence from the case narrative. The organization and focus of each peer review is *sui generis*; they are anything but standardized. While there are a few commonalities, most notably with respect to procedure, the peer reviews diverge quite significantly from each other. Two articles observe that it is not immediately obvious that this *is* a clinical ethics consultation (Tarzian, who concludes after discussion that it is a case consultation, and Rosell & Johnson, who ask but do not explicitly answer this question).

I think this unsystematic approach accurately represents the state of the field. But this must be changed if quality improvement is really what we are after. Systems help to control for the fact of cognitive limitation. We all know healthcare providers should wash their hands, for example, but it took a fairly rigid study and assurance mechanisms to reveal how frequently that did not happen and how controlling for hand-washing and other straightforward, already-verified practices could dramatically affect patient well-being (Haynes et al. 2009). Establishing a system that controls for human cognitive limitations (such as forgetfulness) merely does a better job of making what is desired actually happen than does leaving it up to chance. If case narratives are to be the coin of the new realm of attestation and quality improvement, systematicity in reporting is necessary.4 Systems establish standards to which individual instances can be compared for adherence; without a system in case reporting, for example, we cannot immediately judge whether a consultation was poor, middling, or excellent based on how the report is written or on what is and is not included. If all we have to evaluate the case is a written report, and we lack a standard for evaluating the written report, we lack a true standard for evaluating a case. And so, questions about method in consultation become, under an attestation model, questions about method in consultation *summaries*. We must articulate the links between what should be done in a consultation and what must be included in a case report.

To illustrate this point, consider two categories of observations represented in Part Two's peer reviews: proceduralism, and feminist and multicultural issues. Not

<sup>4</sup> I recognize that a likely consequence of systematizing or standardizing the case report will be a flattening of richness and detail. But flattening of variation is exactly the point of systems and standards, and it is not clear to me how one might steer between this Scylla and Charybdis. However, it does suggest that case studies or reports for credentialing purposes (in which careers might eventually be at stake) can exist simultaneously with richer narratives meant for other venues.

all peer reviewers mention both; procedural concerns are cited in four of the five peer reviews, cultural concerns by only three, and feminist concerns by only one. Several other concerns are each mentioned by only one peer reviewer. What do these differences tell us about the practice of consultation and about the practice of writing consultation reports?

#### *Proceduralism*

By "proceduralism," I mean a focus on proper consultation procedures as evidenced by the case narrative. Tarzian focuses on proceduralism most clearly, as evidenced in her subtitle, "A Focus on Process," and notes that her experience as a chair and member of two different task forces on setting standards in clinical ethics consultation left her with "an appreciation for procedural standards in health care ethics consultation" (Tarzian 2018: 75). Her initial comments, for example, focus on whether this case actually constituted an ethics consultation, and whether it was a *case* consultation or something else; to answer these questions, she turns to the *Core Competencies for Healthcare Ethics Consultation* (ASBH 2011; hereafter "CC"), the current standard in the field, if there is one. Later, she observes that in "The Zadeh Scenario," "there is ambiguity in several procedural aspects of how this consultation was handled," such as whether the role of the former consultant (Moore) was clarified for staff and whether Finder clarified what role he himself would play in the case, with the ultimate question being, Who is really in charge of the case and of communicating with various stakeholders? (Tarzian 2018: 79). Another ambiguity Tarzian comments on is the extent to which medical uncertainty (and the accompanying ethical uncertainty) regarding appropriate treatments was articulated both for health care providers and the patient's family; she points out that "a strategy for determining how these decisions are made" is missing (Tarzian 2018: 83).

Armstrong similarly focuses on procedures by commenting positively on the fact that Finder prepares for the consultation by reviewing the electronic medical record and notifying the attending that he is now involved in the case. However, like Tarzian, Armstrong also wonders whether Finder clarified his role with the family, and why an account of who is making decisions (and why) is missing from the narrative.5 As practicing CECs will know, there are probably more "informal" or "curbside" consultations than formal ones, and Armstrong points out that "a line can and should be drawn between creating a safe space to discuss and examine moral feelings and a responsibility to follow-up and take action on issues uncovered during such discussions." Because Finder describes both formal and informal requests for consultation, yielding uncertainty about which this case should involve, Armstrong is highlighting the need for the field to create appropriate procedures for these different kinds of consultations.

<sup>5</sup>Armstrong goes further than Tarzian with this concern, offering an extended commentary on "the missing patient" in Finder's narrative.

Hynds' first comment is that consultations should occur "upon request" (that is, not "self-authorize[d]"), so as to avoid the role of the Ethics Police, and observes that it is not clear whether the first consultant in this case (Dr. Moore) was formally consulted. He also wonders about the presumably "hierarchic relationship" between Dr. Finder and Dr. Moore (Hynds 2018: 92) and about the "seemingly unstructured or semi-structured" engagement of consultants with participants (Hynds 2018: 89). He recommends, too, that while Finder explains that consultants in this case met with stakeholders multiple times (and alone), it is better if "interventions are kept to a minimum and all the main players are generally present" (Hynds 2018: 90). The main procedural concerns in Hynds' peer review thus concern the formality and source of the consult request, the appropriate structure of interactions with stakeholders, and the professional relationship between consultants.

Frolic & Rubin, like Tarzian and Armstrong, comment on the apparent lack of role clarity in this case. Not only was the role unclear, they suggest, other procedures were as well. For example, procedural clarity was not evident in this case regarding the "various phases of ethics consultation;" it is not clear from the narrative whether the "ethics consultation in this case contributed to any positive outcome, beyond a good relationship between Finder and the family" (Frolic and Rubin 2018: 59); and it is unclear "if and how the voices of the bedside staff were included in the consultation process" (Frolic and Rubin 2018: 59). Many of these procedural issues are attributed to a lack of "formalization of both the ethics consultant's role and process" (Frolic and Rubin 2018: 59).

Four of the five peer reviewers included procedural concerns in their remarks,6 but it is noteworthy that they did not all cite the same procedural concerns. The most frequently cited procedural issue was that "The Zadeh Scenario" does not demonstrate that Finder made his role, or that of his colleague Dr. Moore, clear to the patient's family or the medical staff. (It is worth noting, though, that he may have and simply chose not to mention this in the narrative.) Beyond this node of agreement, however, stated concerns about procedure vary. Armstrong mentions the importance of distinguishing between formal and informal consultations; Hynds stresses the importance that consultants should wait to be called (rather than being proactive) and that consultation meetings should usually involve all stakeholders; and Frolic & Rubin observe that a lack of formalization of the process of consultation may be causing a number of problems.

The peer reviews are not mutually incompatible, so I do not mean to suggest that they demonstrate some radical disagreement about clinical ethics consultation. But they do present quite different pictures of what a case narrative should include. This

<sup>6</sup> I have not included in this count Rosell & Johnson, who describe their commentary as a phenomenological analysis in an "interrogative" mode and do not couch their comments in "procedural" terms. However, many of their remarks may have procedural elements – for example, they note that patients have the right not to receive particular treatments or care from particular providers, and that they have the right under law and because of respect for autonomy to make decisions for themselves.

may help explain the focus on procedure, because it is an area where we might hope for some consensus. However, even in the comments on procedural issues, these peer reviews reveal different priorities.

#### *Multicultural and Feminist Perspectives*

A quote from Dr. Moore indicates that the family is Persian, and three of the peer reviewers take up this fact for discussion. Rosell & Johnson observe only in passing that "the narrative gives several indicators of cultural normative difference in regard to making end of life decisions" (Rosell and Johnson 2018: 103), while Tarzian and Armstrong offer more extended comments. Tarzian raises the idea of "cultural competence" in providing health care, and asserts that "[i]t's clear that this [cultural difference] contributed substantially to the perceived conflicts between the Hamadani family and the staff caring for Mrs. Hamadani" (Tarzian 2018: 78). However, she notes that although Finder recognized these possible cultural issues in the case, "it's unclear whether or how he addressed these conflicts in his role as the ethics consultant" (Tarzian 2018: 80). Armstrong challenges whether we should assume, based on the family's Persian culture, that the patient would have wanted her family to make decisions for her.

Encountering a patient and family with a cultural foundation that might affect their approach to decision-making is common in clinical ethics consultation. Cultural difference can be a linchpin for an entire case – or completely irrelevant. Here, two out of five peer reviews did not even include mention of the issue; but even of the three that did, the responses to the cultural element of the case have next to no overlap. To be specific, one flags it but does not assess Dr. Finder's performance or narrative based on it; one assumes that the cultural issue "contributed substantially to the perceived conflicts" and faults Finder for not discussing how he incorporated these concerns into his consultation; and one notes that culture is not dispositive of wishes when a patient has not stated her own wishes.

Gender and social norms can also play a significant role in clinical ethics cases, but only one author, Armstrong, comments on the role of gender in the case at hand. This case involves an incapacitated mother with one son and two daughters, but the only apparent candidate for decision-maker appears to be the son. Armstrong observes that the daughters have only first names but the son has a first and last name (and is called "Mr. Zadeh" in the narrative), and that "none of the female characters' opinions regarding treatment independent of Mr. Zadeh's interpretation are explored…both the patient and her daughters form a silent chorus for Mr. Zadeh" (Armstrong 2018: 69). It is worth noting that only one of the five peer reviewers found the issue of gender worth noting.

#### **Other Issues**

In addition to procedural and cultural concerns, several other concerns are mentioned in Part Two, though in most cases only one author mentions each feature. Armstrong, Rosell & Johnson, and Frolic & Rubin all focus on the absence of the patient's voice in "The Zadeh Scenario," but mostly in passing. Rosell & Johnson remark that "Mrs. Hamadani is mostly absent in this consultation activity" (Rosell and Johnson 2018: 106); Frolic & Rubin raise the question about what the patient wants as the final and most important category in a list of questions that are not answered in the narrative; Armstrong, in her discussion of "the missing patient," notes that by not mentioning any conversation with the patient about her wishes, "the case appears to presume that she did not wish to be involved in decision-making, or that her wishes were adequately represented by her children" (Armstrong 2018: 68).

Armstrong and Frolic & Rubin comment on Finder's use of the electronic medical record to track readmitted patients who have had ethical issues during past admissions. Frolic & Rubin "worry this could lead to some inadvertent role confusion (what exactly is the ethics consultant contributing by 'checking in' on a previous case?) as well as potential violation of the patient's privacy" (Frolic and Rubin 2018: 58). Armstrong also mentions privacy, but emphasizes more that this practice makes it difficult to know when a consultation has ended, and whether follow-up in this way is part of continuity of care.

Frolic & Rubin also stress the importance of a consultant's self-examination and reflecting critically on one's own practices, noting that Finder does not engage in this practice in this narrative. Armstrong comments that there was evidence of moral distress among healthcare providers, but that Finder does not indicate that this issue was explored at all in the narrative.

#### **Reflections**

The peer reviews in Part Two, like "The Zadeh Scenario," are rich, thoughtful, and appropriate. But even if all of them are correct, I cannot help but conclude that no case narrative short of a novella could hope to satisfy all of these informational demands, and perhaps not even then. This is not a judgment about the authors of the case or peer reviews, who are attuned to the limits of this format. They also did not compose their comments on the premise that they were working towards some paradigm in case narrative. This book is not meant to recommend a model for adoption in case studies. However, because Finder's case is (as the peer reviewers note) a much richer, more contextual and detailed narrative than is customary, and yet *still* all five authors in Part Two find much lacking in the description, the conclusions drawn must also hold for case studies in general given that they tend to be much

shorter, more generic, and lacking in detail and context. The case study is a limited vehicle, in other words, and if it is to form the basis of attestation in clinical ethics consultation, we must standardize what we expect to see in a case narrative.

Imagine if the peer reviewers on this case comprised an attestation panel. Although there is some overlap in their positive comments (e.g., most praised Finder for the care he showed the family), there is hardly any overlap in their critical comments. What would this mean for an attestation evaluation of Finder? This returns us to the difference between assessing a consultant's practice and assessing a case report, because the assumption in the attestation model is that the practice can be evaluated via the case report. This assumption is problematic.

First, if these peer reviews are any indication, authors will have idiosyncratic framing mechanisms for writing case reports, and evaluators will have idiosyncratic responses to cases. For example, Finder may have noticed, explored, and eliminated a feminist concern from the narrative because it played no role, and only one commenter (Armstrong) mentions feminist concerns in her paper. The lack of mention of feminist concerns in the case is merely absence of evidence, not evidence of absence. Armstrong's concern with the way the case narrative is written (e.g., that the daughters have only first names and the son a first and last name) may be legitimate, but it may be a concern with Finder's *narrative choices*, not a concern with his consultation practice (except by tenuous inference between narrative choices and consultation practices).

Three peer reviewers mention cultural issues, reacting to Dr. Moore's statement that the family is Persian and to Finder's conclusion that "cultural elements" may have played a role in the case. But there are many more possible interpretations of this case narrative. We have no actual evidence that *culture* was at play, rather than religion, family dynamics, economic issues, etc. The fact that the family is Persian (are the children also Persian? Or are they Persians born in the US?) ends up being an easy heuristic for "value difference," but it is a heuristic that may mislead. It is not implausible that culture affected the case, but culture is not monolithic, and we characterize individuals inappropriately if we assume that individual beliefs follow directly from cultural context. Finder may have been blind to these issues, exquisitely attuned to them, or somewhere in between; the commenters may have chosen to focus on "pet" concerns, may have drilled right to the heart of the case, or somewhere in between. We simply lack the information we would need to establish which is the case.

In the account of the proposed Attestation model (Kodish et al. 2013), the authors recognize the problem of interrater reliability (which is part, but not all, of the problem outlined above) and offer a mechanism to address it. As the evaluation of the portfolios moved forward, the 12 members of the assessment group "convened to establish assessment metrics" based on the portfolios they had received, then piloted the instruments for face validity and construct validity. It is the problem of "construct validity" – "the ability of the test to measure what is intended" – that I mean to focus on. What I have been illustrating in discussing these case commentaries is the problem of our lack of standards in case reports. If we think it is important to include in a case report a discussion of even those issues that played no significant role during the case, we must offer a template or framework of case reports that

prompts discussion of such issues, even if that amounts to a statement that this issue was not relevant to the case.7

#### **Conclusion**

Quality improvement procedures only work if they capture all and only what is appropriate to the task. We have a double-layer problem in the idea of an attestation model of assessing clinical ethics consultation, because we lack standards at the level of the individual consultation, and we haven't even begun to discuss standard expectations of case summaries. This model of an extended case study with commentaries is worth repeating as we develop standards in the field, because such a process generates the diverse elements of a consultation and its reporting that practitioners find important.8 As the field's assessment mechanisms are shaped, these elements must be standardized and promulgated so that authors of case reports know the bases on which their cases will be assessed. Without clear direction regarding the necessary elements in a case report, attestation of abilities based on case summaries will be impossible, unfair, or arbitrary.

#### **References**

Finder SG (2018) The Zadeh scenario. In: Finder SG, Bliton MJ (eds) Peer review, peer education, and modeling in the practice of clinical ethics consultation: the Zadeh project. Springer, Cham, pp 21–42

<sup>7</sup>One possibility for ensuring comprehensiveness both during a consultation and in a case report is the use of a standardized checklist. I gave a presentation on such a mechanism at the International Conference on Clinical Ethics Consultation 2015, in New York, NY.

<sup>8</sup>For example, journals could add a regular feature emulating this approach, and conferences such as the American Society for Bioethics and Humanities (ASBH) and the International Conference for Clinical Ethics consultation could provide conference slots for panels arranged for this commentary.

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## **PART FOUR CRITICAL INQUIRY INTO PARTS ONE, TWO, AND THREE (ON THE WAY TOWARDS PEER REVIEW)**

#### **Brief Summary of the Essays in Part Four**

Part Four brings into focus several additional matters that must be addressed in any format for peer review and evaluation of clinical ethics consultation. Even more so than the preceding Parts, summarizing these essays does insufficient justice to the maturity and intelligence of the insights expressed in their carefully developed perspectives. These contributions convey the authors' reading of the previous essays, their proposals for methods and criteria for evaluation, the implications for ethics consultants and consultation practices, and the need to engage the multiple discourses in the field. Not only do these perspectives sharpen the concerns evident in the preceding chapters, they highlight the significant challenges for any ethics consultant about his or her own experiences and practice. Taken together, these chapters display the challenges that must be answered by those evaluating ethics consultation and entailed activities, especially when evaluations are conducted from a context, time, and place different than those in which the consultation was conducted – with perhaps different conceptions about the underlying commitments that support ethics consultation.

Stella Reiter-Theil and Jan Schürmann begin with "Evaluating Clinical Ethics Support: On What Grounds Do We Make Judgments About Reports of Ethics Consultation?" In addition to clearly identifying the need to recognize the conceptual and practical significance of internal as well as external standards for evaluation, Reiter-Theil and Schürmann raise another crucial topic to consider. They ask this sort of question: If we lack presentation of the phenomenological, interpretive, and existential elements that contribute to the normative understanding for a particular situation, to what extent can we legitimately identify, assess, and make some appraisal about the analytical and interventional elements for ethics consultations? By way of response, they include in their outline of criteria to use for evaluation the idea that "criteria regarding the doing of ethics consultation may require different kinds of material evidence than the criteria regarding the documentation of ethics consultation" (Reiter-Theil and Schürmann 2018: 174). They further describe an

integrative model that attempts to balance these various elements by suggesting that these represent what they call a "repertoire" of relevant activities and approaches. Keeping that in mind, they go on to suggest that it is important for those being reviewed and those doing the review "to agree in advance about the internal as well as the external standards that are to be utilized in evaluation" (Reiter-Theil and Schürmann 2018: 176).

Any such agreement, as Jeff Bishop proposes in "Doing Well or Doing Good in Ethics Consultation," would be better served by recognizing that, as a clinical activity, "clinical ethics consultation is a kind of doing that is a local form of moral enquiry, seeking not just to achieve medical – or clinical ethical – goals, but to enact human goods" (Bishop 2018: 181). In support of this proposal, Bishop critically examines the philosophical tenets typically used to underwrite the methods outlined by Bruce and Aulisio, making his argument that "proceduralism is at the heart of all four methodologies" presented by Bruce. Bishop then engages the explication of rules by Agich to clearly remind ethics consultants and peer reviewers that rules translated and standardized into guidelines are abstractions that "become the codes, procedures, and policies to now be applied by ethicists to all cases" (Bishop 2018: 183). He agrees with Agich that making these translations in order to traverse among clinical and organizational levels of activities and assessment, for instance those presented by Reiter-Theil and Schürmann, requires a great deal of caution and care. One primary ingredient of such care that Bishop reflects is gained from insights that phenomenology brings to clinical ethics because what "phenomenology asks us to do is to bracket our preconceptions – even our procedural preconceptions – about what we think matters in a case, and to attend to the things that matter to the patient, to the patient's family, and to the patient's caregivers" (Bishop 2018: 187). "In fact," Bishop goes on to say, "'The Zadeh Scenario' is a narrative of what matters to the patient and the family. This narrative is a narrative describing the bringing forth of goods possible in dying. With this narrative, Finder challenges us to bracket our procedures and policies and guidelines" (Bishop 2018: 189).

Guy Widdershoven, Bert Molewijk, and Suzanne Metselaar bring this section to a close with a sensitive and careful elaboration that clarifies several core elements for peer review. Their essay, "Peer Review and Beyond: Towards a Dialogical Approach of Quality in Ethics Support," probes several ideas about the contents that elements in a story should portray in order to serve as a part of a peer review. They clarify and discuss a central theme of the book, specifically, the differences in assessments that can, and will, occur among different peer reviewers. In response, they highlight several elements which, although complex, should be included. First, there are elements, orientations actually, they call "the attention for details" and "the sensitivity for how facts in the case (e.g. behavior, words used, medical situation) are interpreted" (Widdershoven et al. 2018: 195). A second element considers the story of the ethics consultation under review to suggest that these stories "should focus on the identification of ethical elements of a clinical situation, the analysis of values and norms of the stakeholders involved in that clinical situation, and the way in which value conflicts are made explicit and turned into an issue for deliberation" (Widdershoven et al. 2018: 197). They also make explicit a major theme threaded throughout the book, saying, "it is the dialogue between interpretations that holds out the promise for actual growth in understanding what the quality of clinical ethics practice entails" (Widdershoven et al. 2018: 198). Their proposal is that such elements then can be exemplified through additional interactions to stimulate "comparison and learning to see the case better by sharing commonalities and differences," and in that way bring this sort of dialogue into what they call a "responsive evaluation" (Widdershoven et al. 2018: 201) among perspectives held within a broader and more inclusive group of stakeholders in a healthcare environment to enable a more extensive interaction with the moral circumstances and commitments under consideration.

## **Evaluating Clinical Ethics Support: On What Grounds Do We Make Judgments About Reports of Ethics Consultation?**

**Stella Reiter-Theil and Jan Schürmann**

#### **Introduction**

In this chapter, we explore the question of on what grounds reports of clinical ethics support in general, including especially clinical ethics consultation, can or should be evaluated when using a peer review system, and we propose five core points to consider. It is our contention that to evaluate clinical ethics consultation within a peer review system aiming at transparency and fairness, one has to rely on defined and shared criteria of evaluation, i.e. an evaluation standard (although the term "standard" is by no means trivial, this chapter will not focus on its thorough clarification). Such a standard is grounded on a (defined and shared) conceptualization of how an ethics consultation should be performed. Obviously, there are different ways of doing clinical ethics consultation also corresponding with different evaluation standards (Pfaefflin et al. 2009; Schürmann et al. 2013). When evaluating a performed ethics consultation (according to a given documentation), we can roughly distinguish between an internal standard, which refers to the conceptualization of clinical ethics consultation held by the respective consultant or by the assessed clinical ethics support service (CESS) themselves, and external standards. Most important is the way *how* an external standard is being defined: Is it just the standard of another service or colleague? Or is it the result of a larger consensus-building process of a relevant body representing a larger group of colleagues such as the guidelines of the ASBH (2011)? Or does it even rely on the "evidence" of related research? An external standard, however, may rest on criteria that are not – or not fully – accepted by the evaluated CESS or individual ethics consultant. However, identifying the internal standard of an observed ethics consultant's work may also be

S. Reiter-Theil (\*) · J. Schürmann

Department of Clinical Ethics, University Hospital Basel / University of Basel, Basel, Switzerland

e-mail<EMAIL_ADDRESS><EMAIL_ADDRESS>
<sup>©</sup> The Author(s) 2018 165

S. G. Finder, M. J. Bliton (eds.), *Peer Review, Peer Education, and Modeling in the Practice of Clinical Ethics Consultation: The Zadeh Project*, https://doi.org/10.1007/978-3-319-90955-4\_12

challenging: Has it been published, and does it still apply to the recent case at hand? Is it clear or may there be misinterpretations? From the evaluator's perspective the responsibility for making an internal standard known and unequivocal lies with the "author" of the material. The potential gap between internal and external standards marks a methodological difficulty that as such has to be addressed within peer review evaluation.

Summarizing, we suggest that clinical ethics consultation should be evaluated by an internal standard held to be relevant by the respective consultant or CESS; moreover, we think that this internal standard must be in accordance with a general framework for the specific ethics consultation to be accessible to peer review evaluation. As a consequence of this coupled approach, the process of evaluation will avoid getting lost in a merely subjective, self-referential circle.

Besides different standards, there are also different kinds of methodological approaches to evaluate performed clinical ethics consultations, e.g. embedded research (Reiter-Theil 2012; Reiter-Theil and Schürmann 2016), analysis of (oral or written) reports, or analysis of videos. In analyzing oral or written reports, one can rely on different types of material such as case vignettes, records, narratives or feedback. Each type has different merits leading to specific strengths and weaknesses regarding the assessment, the data and conclusions. We suggest that an analysis relying on a combined report, including narrative and record, might best account for the weaknesses of each approach.

Finder's "The Zadeh Scenario" offers a rich narrative and in our eyes seems to implicitly communicate his internal standard of how to do clinical ethics consultation. He has, more importantly, made explicit his approach elsewhere – it may be described as a phenomenological-hermeneutical approach (Bliton and Finder 1999). In the first-level peer reviews given in this volume, the peer reviewers do not seem to embrace this approach in its full extension, as they assess Finder's narrative in "The Zadeh Scenario" using an approach that Bruce describes appropriately as "proceduralism" (Bruce 2018) – an approach that we consider, in this case, to be an external standard.

The type of report Finder has provided – a written narrative – is, according to our understanding, suitable to assess conversational, phenomenological, hermeneutical and existentialistic aspects of an ethics consultation. We think that Finder's narrative does well in addressing these aspects, with some shortcomings regarding the hermeneutical criterion. Considering further criteria of the proposed framework – analytical, normative, interventional – "The Zadeh Scenario" falls short in providing the reader with a more comprehensive report and, especially, reflection.

#### **Critical Appraisal of the Commentaries**

Interestingly, each of the second-level commentaries (Part Three) achieve different things. Accordingly, in order to clarify their particular objectives, each must be addressed individually.

#### *Bruce*

Bruce explores the methods referred to by the first-level reviewers to assess Finder's performance. Under "method" Bruce understands the systematic procedure, technique, or mode of inquiry employed during ethics consultation. Bruce presents four main methods discussed in clinical ethics literature: principlism, casuistry, narrative ethics, and clinical pragmatism. While the peer reviewers hardly refer to principlism and casuistry, they invoke several aspects of narrative ethics and clinical pragmatism. Regarding narrative ethics they refer to criteria such as engagement in dialogue, usage of open and well-crafted questions, involvement of all individuals concerned, or the richness of the story. Regarding clinical pragmatism, they refer to several procedural criteria: identifying the main ethical concern (of the requestor), clarifying the role of the ethics consultant, identifying and justifying appropriate treatment options, appealing to professional, legal or ethical standards, focusing on problem-solving, etc.

Bruce suggests that in using both narrative and procedural criteria the reviewers implicitly point to a new method which she calls "proceduralism." According to this approach, clinical ethics consultation should follow a systematic procedure that refers to the cited procedural criteria. It includes, however, as an additional procedural step any activities referring to the narrative criteria mentioned above. This, she argues, enables proceduralism to include the benefits of narrative ethics – discovery of meanings and values, context/case sensitivity, empathic support – and yet be effectively oriented at solving the ethical problem. Moreover it yields a distinct standard of procedural justification in ethics consultation: "Proceduralism allows for internal consistency and justificatory force to the extent that certain steps should be followed and justifications provided if these steps are not followed" (Bruce 2018: 123).

Bruce ends with four preliminary recommendations for clinical ethicists who get their ethics consultation assessed by peer review: (1) be explicit in your approach and justify deviations, (2) identify the nature of the ethical concern, (3) be explicit in your role, (4) identify and justify which interventions are considered inappropriate.

We tend to agree with Bruce's reconstruction of the method used by the firstlevel peer reviewers. However, it has to be acknowledged that proceduralism is an external standard that seems to deviate considerably from the internal standard used by Finder. Also, the reviewers' methodological conformity appears coincidental as several studies did indeed show the prevalence of principlism as method of ethics consultation (e.g. Slowther et al. 2012: 212). It would, thus, be at least somewhat premature to recommend the criteria of proceduralism as a kind of gold standard for peer review assessment.

Regarding Bruce's preliminary recommendations for reviewed clinical ethicists, it's not entirely clear whether these are meant to be "recommendations" referring to the *doing* of ethics consultation or referring to its *documentation*. As Rasmussen makes perfectly clear, these standards have to be distinguished and their relationship has to be clarified. We think that these recommendations capture important features that any kind of (oral or written) report has to display in order to be suited for peer review assessment.

#### *Aulisio*

The case narrative itself, rather than the first-level peer reviews, is further appreciated by Aulisio who raises a number of most interesting questions, e.g. on the role of the ethics consultant, the significance of autonomy- versus community-centric value sets, on hearing the voice of the patient, on the way of taking over a case from a colleague, on the request of a patient's family, to mention just a selection. Aulisio presents, instead of answering these questions, three "meta-methodological" lessons for method in clinical ethics consultation. They are as follows:

#### 1. *Identifying and analyzing the underlying value conflict or uncertainties*

For Aulisio, the family's perception that they hold the value of "respecting and caring for parents" while suggesting that this was not the case in the surrounding majority U.S. culture, needs to be further explored so as to gain a broader understanding of the meaning of "respecting and caring for parents" as he – convincingly – supposes that the prevailing divergence might lie in the respective interpretations. Does "respecting and caring for parents" mean clinging to maximum life-supporting treatment, even given the evidence of burdening the patient with marginal expected benefit? Or could "respecting and caring for parents" also be understood as engaging in the search for the authentic wishes and needs of the patient, even if those may contradict the family's traditional customs or beliefs?

In his commentary (discussion of which is below), Agich criticizes Finder's approach when performing the ethics consultation arguing that he acted more like a "sensitive communicator and counselor for [the] family" (Agich 2018: 147). However, even in that role, one of the primary tasks would have been to clarify the values and commitments that were at stake in different possible interpretations. Aulisio's impression is that the expected value clarification did not take place (or was at least not provided in the narrative). Thus, rather than suggesting that Finder simply took on the role of another profession, the question must be asked, why did he act as he did, and on what grounds? More specifically, the question here is whether Finder's phenomenological framework of doing ethics consultation actually contributes to – or at least permits – a better understanding of the values and commitments (along with real or perceived conflicts and uncertainty) at stake?

#### 2. *Clarifying who has the decision making authority*

Aulisio is quite adamant that all healthcare professionals, including ethics consultants, should maintain (or establish) respect for the authority of the patient in decision-making. He thus identifies as a "mistake" that the locus of decision-making appears to have been placed upon Mrs. Hamadani's family (instead of Mrs. Hamadani herself). Although this may be an unusually strong expression – in the sense that the talk of "mistakes" is still somewhat uncommon in clinical ethics literature (Rubin and Zoloft 2000) – it is the case that many nations (including our own home countries, Germany and Switzerland) have laws that reinforce ethical standards according to which, when patients lack capacity to participate in decisionmaking, healthcare professionals not ask patients' relatives or legal representatives for their own preferences regarding patient care; instead, they should be asked about the patient's values and preferences. Whatever else it is the role entails, therefore, it is an ethics consultant's task to ensure that this norm is followed. Against this frame, Aulisio also outlines a key role of the care team: to articulate the range of medically acceptable options and to offer clear recommendations. This includes, we would add, the task of articulating the limitations of interventions that do not make sense or create (moral) trouble such as the experience of practicing substandard pain control or futile care.

#### 3. *Taking care that the patient's voice is being heard*

This serious concern of Aulisio's is illustrated by a label that is most telling: the "secondary patient." He warns us to prevent making "secondary patients" of family members with the risk of not only shifting the locus of decision-making but also the focus of care to the relatives rather than focusing on the patient. In explaining this challenge, Aulisio acknowledges the importance of nonetheless paying attention to the needs of the troubled family and making available relevant support from other appropriate professionals or resource groups. However, the question must be raised whether any limits or exceptions to the rule could be claimed from a moral perspective when the needs of a "secondary" patient (family member) have to be prioritized. For example, if a husband who promised to take care of his terminally ill, hospitalized wife is overburdened by this task and gets ill himself, his needs, as the "secondary patient," may indeed have to be prioritized over the wishes of the primary patient. This can be justified by the bridge principle "ought implies can": after falling ill, the husband has reached his limits and cannot maintain his promise to take care of his wife, and as a result, two primary patients emerge who both have needs and rights in themselves, even when they fall short of reciprocal wish-fulfilling.

We suppose that in Finder's case another option should be considered: some family members may have become a "primary patient" in their own right even if this is not explicitly communicated. According to "The Zadeh Scenario," this has not been an issue in the case. There is, however, another significant question: are there good reasons to suggest that Finder might have perceived such a critical situation within the Hamadani family? Did he perceive – without articulating – that some family members were in some kind of critical need situation where their "salvation," their moral or mental stability, required prioritized understanding or support because they otherwise might not have been able to escape "guilt" by consenting to palliative care goals?

On the whole, Aulisio's commentary is not only insightful and well supported by references, but also refreshing in his explicit questioning and constructive criticism. It is also appreciated that he explicitly addresses how an ethics consultant is dealing with the normative dimension of a case – and the related tasks in the role of being an ethics consultant. Aulisio doesn't further elaborate on the status of his "metamethodological" rules, apart from saying that they "are at a level of generality that makes them […] compatible with and relevant for a wide variety of more specific models, approaches and methods of doing ethics consultation in health care settings" (Aulisio 2018: 128). We may account for this status by saying that these rules belong to a general framework describing what it means to do ethics consultation in the clinical context – a framework that is mandatory for peer review assessment of ethics consultation. Justifying such a status, however, cannot be done merely by exemplary case analysis, but requires conceptual analysis of both clinical and social norms as well as a robust consensus-building process among clinical ethics consultants.

#### *Agich*

In the first part of his chapter, Agich clarifies his understanding of doing clinical ethics consultation. In short, he understands ethics consultation essentially as a "reflective practice" in which the ethics consultant reflectively and responsibly engages in specific actions and communications such as gathering information, assessment, interpretation, planning meetings, analysis or providing advice. In doing so, the ethics consultant contributes to a hermeneutical process of giving meaning to the circumstances of the clinical case. This process builds on the conceptual, factual, evaluative and ethical views of the patient, family, and health care professionals involved, but also depends on a wider framework of social meanings. Agich considers three methodological implications of his reflective practice approach: (1) in order to define the distinctive set of rules guiding an ethics consultation, we have to neutrally describe the essential features of the doings in the practice of clinical ethics itself – and not, for instance, refer to ethical theory or methods; (2) the ability to enact these rules in practice is learned by way of actually performing and experiencing clinical ethics consultation – and not by studying formal codes, procedures, or guidelines; (3) in order to review an ethics consultation, we have to construe the whole "history" of that ethics consultation – not just look at its outcome. The history is ideally a set of critical reflections on all aspects of an ethics consultation which may be manifest in different kinds of reports (records, written or spoken narratives etc.).

In the second part, Agich focuses on four procedural features of Finder's performance: direct communication among ethics consultation team members, written ethics consultation records, the role of the ethics consultants, and the dynamic character of clinical ethics consultations. According to Agich, the direct communication between Finder and Moore was effective (which is essential). Similarly, Agich acknowledges the importance of having written records in the course of ethics consultation. In terms of the role of Finder, Agich is a bit more critical, briefly discussing that it seems to have been more that of a "sensitive communicator and counselor for [the] family" (Agich 2018: 147) than of an ethics consultant. As regards the dynamic character of clinical ethics consultation, Agich is again more positive, noting that this feature is admirably displayed by "The Zadeh Scenario." In the end, however, Agich questions the adequacy of Finder's narrative as a learning model for dealing with the normative dimension in ethics consultation.

In describing his reflective practice approach of clinical ethics consultation, Agich provides, according to our terminology, an external standard for evaluating Finder's ethics consultation. However, it remains unclear whether this evaluation standard is the same as the standard used by Finder or the first-level reviewers. We suppose that Agich's approach actually is quite similar to Finder's in its emphasis on engagement in a hermeneutical process with the individuals involved in a clinical case (for a description of Finder's approach, see our Discussion below). It lacks, in other words, a focus on referring to an explicit procedural framework – a statement that is paramount for the peer reviewers, as Bruce points out. Thus, in contrast to the first-level reviewers, Agich refers to an external standard that may count as internal as well. But this is only coincidental – we argue that for proper peer review assessment both internal and external standards, as well as their relationship, have to be articulated explicitly.

Agich's main criticism of "The Zadeh Scenario" is that it omits critical reflection of normative aspects of the case. This criticism is based on Agich's understanding of ethics consultation as a practice that primarily aims to provide thoughtful advice on *ethical* concerns rather than to provide emotional support for the patient's family. However, it remains unclear in what specific way Finder's performance misses the normative dimension, as Agich does not clarify how ethical concerns should be dealt with according to his own approach. In order to assess the handling of ethical concerns in the practice of clinical ethics by means of peer review assessment, examinee and reviewer have to agree on specific normative evaluation criteria.

The methodological implications Agich mentions also bear on peer review assessment. First, his insistence on the practical embeddedness of the rules guiding clinical ethics consultation reminds us that the evaluation criteria used in peer review have to be specified in view of the actual doings in ethics consultation. Second, in order to assess the whole "history" of clinical ethics consultation, we may have to rely on different kinds of material – not only narratives as in this case.

#### *Rasmussen*

Rasmussen's commentary starts by stating a number of limitations that arise for evaluation of ethics consultation when that evaluation is conducted by looking through the lens of the case narrative. Anticipating her clear, concise and constructive conclusion (we will come back to it in the Discussion), this recognition of such limitations reinforces the key message that the evaluation of ethics consultation requires standardization including a uniform standard for case reports

themselves – which as she clarifies is distinct from a uniform standard for how a consultation is conducted.

As a kind of illustrative reason for the request for standardization, she explores the diversity of the five first-level peer reviewers in Part Two, with their "disparate targets" and nearly completely different ways of commenting on the case report, the result of which is "few commonalities, most notably with respect to procedure" (Rasmussen 2018: 153). One very basic divergence concerns the question raised in two out of the five peer reviews, namely whether "this *is* a clinical ethics consultation"; only one of the two confirms that this is the case.

In our view, possible triggers for this line of questioning are as follows:

What Rasmussen concludes (correctly, we believe) is that "this unsystematic approach accurately represents the state of the field" and "if case narratives are to be the coin of the new realm of attestation and quality improvement, systematicity in reporting is necessary" (Rasmussen 2018: 153). For further illustration, she picks two categories of observations: proceduralism and then feminist and multicultural issues.

With respect to proceduralism, Rasmussen notes that the authors in Part Two raise various procedural aspects of clinical ethics practice. There is, however, minimal overlap regarding questions about the (clarification of the) ethics consultant's role, similar to what we have discussed in the previous paragraphs in reference to Bruce, Aulisio, and Agich. Regarding feminism and multicultural issues, Rasmussen similarly states that the few responses to cultural elements (by three of the authors) "have next to no overlap" (Rasmussen 2018: 156). More importantly, however, Rasmussen explicitly draws attention to the fact that Armstrong seems to argue (Armstrong 2018: 69) that we should not assume that the patient would have wanted her family to make decisions for her because she is Persian (Rasmussen 2018: 156). Moreover, Rasmussen notes that Armstrong is also the only author who comments on a gender issue, observing that in "The Zadeh Scenario," Finder is calling the two daughters by their first names while calling their brother by his last name (as he does for the patient, always, and only, using "Mrs. Hamadani"). This observation is extended to stating that none of the female characters' opinions were explored. Interestingly, Aulisio did adjust this asymmetry by calling all three children of Mrs. Hamadani by their first names, including Samir, the son. However, this egalitarian approach did not extend to the healthcare (ethics) professionals who kept their last names throughout "The Zadeh Scenario" and the commentaries.

From an intercultural perspective we can point out a difference to some Anglo-American practices. In a continental European culture, a non-reciprocal use of names would be most uncommon among adults (equals) and any deviation would be registered as surprising, especially in a professional context such as a hospital. A distinction exists in most European languages between addressing a person on familiar terms or in the formal form of address by using the personal pronouns of "Du" or "Sie", and it is a common practice, if not a social norm of good style, to respect mutuality (except for relations between, e.g., teachers and children). Thus, these observations seem to indicate that sensitive issues exist not only with regard to gender and communication, but also regarding the representative symbols of professional hierarchy towards patients and relatives.

In her reflections, Rasmussen articulates reservation about the assumption that clinical ethics practice could be evaluated by evaluating the retrospective case report – given the diversity of such reports. This leads to her conclusions that we are facing a double-layer problem: (1) a lack of standards regarding the individual ethics consultation and (2) the lack of standards regarding the ways they are documented. To adequately address these problems, Rasmussen suggests, requires not only standardizing the assessed elements of clinical ethics consultation as well as of clinical ethics consultation reports, but also promulgating these standards among all the participants of the assessment – otherwise, she says, peer review assessment will be "impossible, unfair, or arbitrary" (Rasmussen 2018: 159).

#### **Discussion**

The task to reflect methodologically on the peer reviews presented by the authors in Part Two is interpreted differently by each of the four authors in Part Three. This may not come as a surprise, as the concepts of method present a great deal of variety both in terms of theory and practice of clinical ethics consultation. Perhaps due to the difference in objective, there are hardly any open discrepancies between the commentaries in Part Three. One such discrepancy is the different emphasis Bruce and Rasmussen pursue when assessing the conformity among the Part Two reviews. Whereas Bruce suggests that they are similar enough to subsume them under the method of proceduralism, Rasmussen thinks that they hardly share the most basic assumptions – apart from the focus on procedure.

As to the task for Part Four, we acknowledge that each of the previous sets of reflections (Parts Two and Three) provides an opportunity to develop important conclusions about peer review assessment of clinical ethics consultation reports. We summarize these conclusions as follows. In peer review assessment of ethics consultation, (1) internal and external evaluation standards have to be articulated

**Fig. 1** Inventory and escalating model of dealing with the normative dimension in ethics consultation – the repertoire of an ethics consultant (Reiter-Theil (2009) with friendly permission by Cambridge University Press)

explicitly; (2) reviewee and reviewer have to agree on specific evaluation criteria applying to the actual doings in clinical ethics consultation; (3) these evaluation criteria should conform to a general evaluative framework; (4) that framework has to be validated in a consensus-building process among ethics consultants; (5) evaluation criteria are needed both for the *doing* of ethics consultation and for the *documentation* of ethics consultation; (6) the criteria regarding the doing of ethics consultation may require different kinds of material evidence than the criteria regarding the documentation of ethics consultation.

We rely on an integrative model (Reiter-Theil 2009) as a way of appreciating these suggestions and as a response to the demanding task to locate the divergent criteria of clinical ethics consultation that have emerged from the tableau of opinions into a conceptual framework. This model suggests a repertoire covering activities and approaches to be found in clinical ethics support (see Fig. 1). The underlying idea is that it makes sense to handle the normative dimensions of clinical encounters (i.e. ethical questions, conflicts, dilemmas) in an "escalation" approach. This strategy suggests that the low-level or "milder" activities are to be exhausted before engaging in higher-level and more directive interventions. In line with our proposal to apply both internal and external standards when evaluating ethics consultation material/activities of colleagues, using this model helps to distinguish between the criteria that are supposed to be shared by the ethics consultant(s) whose work is to be evaluated and those criteria that an observer wants to use as a measure (because such criteria seem to be founded on a large consensus – as in the case of the ASBH core competences).

Finder's narrative in "The Zadeh Scenario" implicitly places his approach – as the authors in Parts Two and Three have vastly agreed – on the so-called "level of conversation with the family and the healthcare professionals," which seems to match the 1st level on Fig. 1; moreover, his approach does not seem to move to any higher level. No explicit clarification of values (2nd level) has been carried out according to the narrative (as several authors have highlighted), nor has any interpretation (3rd level) or analysis (4th level) about the understanding of the value conflict and the options at stake been offered. We assume that these activities (at least levels 1–3, if not 4) would be part of a phenomenological-hermeneutical approach to ethics consultation. For verification of what may serve as Finder's internal standard, we need to look into the way Finder himself explicitly articulated his approach:

[W]e understand the main activity of ethics consultation as conducting conversations in […] clinical situations in order to identify by speech, and through oneself as an example, what is most worthwhile to the participants in such conversations. We maintain, moreover, that the aim of clinical ethics consultation is to articulate and examine those possible meanings most prominently evoked within specific situations, which frequently involves identifying the problems perceived by those individuals confronted with a clinical decision, and entails gathering the viewpoints of many different participants included in that decision. All of which means that the method of ethics consultation must be clinical. In summary, clinical ethics consultation has two major characteristics. First, its activities are persistently guided by this question for the consultant, 'What do I need to know?' in order (a) to figure out why a clinical ethics consultation was requested? and (b) to get clear about 'what's going on?' Second, clinical ethics consultants seek to identify and discuss by persistently helping to elicit from *the primary participants* (patient, family, physicians, nurses, and so on) what *they themselves* find troubling and in need of resolution, and therefore what aftermaths they can live with in the light of what is most worthwhile to, and for, them. (Bliton and Finder 1999: 74–5, emphases in the original)

This description clearly shows Finder's conceptual insistence on the activities located on levels 1–3. It also highlights the perspective of the *patient* as a primary concern not only for problem resolution, but in the first place to understand the nature of the problem. If these activities are in accordance with an internal standard, reasons would be needed to explain why parts of this (phenomenologicalhermeneutical) clinical ethics repertoire were not used or not shown, e.g. value clarification. It is – we concede – possible that Finder did observe or conclude something that prevented him from following a path that would have appeared more stringent with his internal standard, but we do not see any hints for that in "The Zadeh Scenario," nor in the commentaries.

Using the referred to integrative model (Reiter-Theil 2009), however, does not imply that all levels have to be applied in all situations. The judgment about which steps are to be used has to be made in light of the context of the ethics consultation case. If as in this case the patient's voice appears to have gotten lost, it becomes a normative-ethical claim to make this voice audible, even in a situation of arising resistance (e.g., of the family)(see levels 6, 9 and 10). In some jurisdictions, adopting this claim is a matter of obeying the law and enacting existing ethical guidelines and principles, especially patient rights and respect for autonomy, and as such this normative basis requires the ethics consultant (but also the healthcare professionals)

**Table 1** Different evaluation methods and types of material in peer review assessment of EC

to work on the identified problem. We hold that this obligation is not even dependent on the (methodological) clinical ethics approach, but is a general duty. However, the style and the steps of how an ethics consultant would try to perform this task will and may vary – according to her approach. Finder, as the author of "The Zadeh Scenario," should (and we believe probably could) explain how he deliberately handled this normative issue. To prevent such gaps of assessment, it is important for the reviewed clinical ethics consultation service and the reviewers to agree in advance about the internal as well as the external standards that are to be utilized in evaluation.

On our review, most of the commentaries in Part Three and their critical reflections on method include the claim that activities corresponding with levels 2–8 in Fig. 1 are missing in "The Zadeh Scenario." We can imagine that several of the authors might even go as far as to request application of steps 9 or 10 in this case, e.g., for enacting the normative claim that the patient's voice and wishes must be made audible (e.g., Armstrong; Aulisio).

To our knowledge, there is no framework referring to different evaluation methods or types of materials used in peer reviewing clinical ethics consultation. A preliminary overview regarding methods and types of materials can be found in Table 1. We share Rasmussen's methodological reservations regarding the suitability of case narratives for peer review. In her thoughtful analysis she makes admirably clear that case narratives do require standardization in order to control for "idiosyncratic framing mechanisms" of their authors – and their readers as well – and for the lack of crucial information. However, using a uniform standardization of case narratives might come with the loss of the specific advantages of narratives, namely to provide a first-person account of the situation. One solution, we suggest, consists in combining a narrative with a more formally structured record in order to compensate the shortcomings of narratives regarding procedural, analytical and normative criteria.

#### **Conclusion**

Evaluation of clinical ethics support services – especially clinical ethics consultation – by peer review is an important task on the way towards improving the practice and developing related concepts.

We conclude by listing five core points to consider when evaluating ethics consultation:

**Acknowledgements** We thank Professor Stuart Finder, PhD, for his generous and trusting invitation to contribute to this project of evaluating a case of clinical ethics support. His courage could – maybe should – become a milestone in developing this field further.

#### **References**

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## **Doing Well or Doing Good in Ethics Consultation**

**Jeffrey P. Bishop**

#### **Introduction**

At one point in history, the medical record was little more than a series of notes written by a doctor to himself. In its original form, it was a short-hand that was mostly idiosyncratic, meant for one set of eyes only. As healthcare became more complex, the chart would need to change. It would become the medium to communicate with other physicians in order to permit coordinated care. It became a document written in a shared language that only a fellow practitioner could understand. Even the patient would never recognize herself in those notes, so distant the medical narrative is from the patient's lived experience.

In time, however, the medical record became the legal record, the official record of what occurred in the interaction of patient with doctor; and perhaps more importantly it became the record of what did not occur. Doctors were suddenly being judged – with severe financial penalties – for what was and was not in their notes. Thus, the medical record changed. It included not only key findings, but it now would also include the absence of key findings that might rule out certain diseases. Doctors had to prove that they had thought of and had ruled out certain diseases. And if we are to believe those lobbying for tort reform, the documentation within the medical record changed the way physicians would practice medicine. Today, the medical record, which is really a legal record, is evolving once again. It has become the record used for billing. Physicians are called by billing abstractors, who ask them questions like: "Did you do this exam or that exam? Because if you did, we could bill at the higher level." "Why, yes," the physician answers, "I did do that exam! So let's bill at the higher rate." This is not to say that the doctors fabricate what goes into

J. P. Bishop (\*)

Albert Gnaegi Center for Health Care Ethics, Saint Louis University, St. Louis, MO, USA e-mail<EMAIL_ADDRESS>
<sup>©</sup> The Author(s) 2018 179

S. G. Finder, M. J. Bliton (eds.), *Peer Review, Peer Education, and Modeling in the Practice of Clinical Ethics Consultation: The Zadeh Project*, https://doi.org/10.1007/978-3-319-90955-4\_13

the chart, because in all likelihood they soon began doing those more highly billable exams. Again, practice can and sometimes does follow documentation.

Having read many medical records, which are also legal and financial records, I was a bit dumbfounded by "The Zadeh Scenario," Finder's narrative of a clinical ethics consultation case that he participated in and submitted for peer-review in these pages. I thought to myself: "Stuart, what are you doing? Don't you know that, given the way you are presenting this case consult, your peer reviewers are going to rake you over the coals?" Of course, Finder knew how the narrative would be engaged by his peers. When Finder approached me to be a part of this project, he told me that he would present a case narrative for peer review, and that he had asked several other colleagues to comment on the peer-reviews. He asked me to provide another layer of commentary onto the commentaries of the peer-reviews. Just to be clear, we need to understand the layers involved here. First, there was the case consultation, the actual doing of the case. Then there is Finder's narrative, "The Zadeh Scenario," a shortened and focused version of what had been done. Then there is the layer of the peer-review commentaries on Finder's narrative of what he had done in the clinical ethics consultation. And then there are the commentaries on the peerreview commentaries of Finder's narrative of the case he had done in the clinical ethics consultation. Within the first lines, I knew that Finder's narrative describing his consult was going to drive his peer-reviewers crazy.

So, why did Finder not give his peer reviewers what they wanted? Finder has been doing clinical ethics since 1991, for well over 25 years at the time this volume was assembled. Having practiced medicine and having practiced clinical ethics consultation, I also know that the chart does not contain everything – every kindness, every word, every smile, every moment of tension – that occurs between a patient and a physician, or a patient and the clinical ethicists. I also feel quite secure in believing that Finder, as a clinical ethics consultant, knows the importance of writing a coherent note in a chart, a note that can be read and understood by clinicians, a note that documents important positive findings, but also negative findings. Certainly, Finder knows that we write with various purposes, highlighting some features of a case over other features of a case. So, why "The Zadeh Scenario"; why this narrative? I think Finder, the clinical ethics consultant, was up to something very interesting when he wrote out this narrative. It was not a narrative fit for review, but a narrative fit for other purposes. The question is whether his peer-reviewers would have ears to hear Finder's rendering of the consult.

From my reading, it turns out his peer-reviewers did not have the ears to hear the story that Finder was telling. They did indeed rake Finder over the coals, as I thought they might. They did so nicely of course; after all, bioethicists are nothing if not nice. Finder knows that his case-narrative is a story about his doing of a consult. He of course knows that his narrative was not the kind of story that his peer-reviewers will have wanted. Rasmussen astutely notes that Finder's rendering of "The Zadeh Scenario" is just that: a rendering of a kind of doing (the doing of clinical ethics consultation) and that all renderings, all telling of stories have a purpose – a point made by Tod Chambers years ago (Rasmussen 2018; Chambers 1999). She notes that absence of evidence in the narrative is not in fact evidence of absence in the consult, despite what lawyers – and it seems clinical ethics peer-reviewers – believe about medical charts.

Finder is pointing to an insight on which Rasmussen picked up: peer-reviewers who would give attestation to quality ethics consultation candidates like Finder will need to be thoughtful about the evidence supplied to them by candidates. More importantly, however, I also think Finder's rendering of the story in just this way calls attention to the special kind of doing that clinical ethics consultation is – a kind of doing that may not fit into what proceduralist ethicists want to see. In this essay – which is now four removes from Finder's actual doing of the case – I shall argue that Finder is not only problematizing the process of attestation of quality, but that he is calling attention to the special kind of doing that is clinical ethics consultation. I shall argue that clinical ethics consultation is a kind of doing that is a local form of moral enquiry, seeking not just to achieve medical – or clinical ethical – goals, but to enact human goods. His peer reviewers want Finder to do clinical ethics well; Finder wants to do good in clinical ethics consultation.

#### **Examining the Commentaries on the Peer-Reviewers' Commentaries of the Narrative of the Doing That Is Clinical Ethics Consultation**

Just to be sure we are all on the same page, I am here engaging not the case consult nor the narrative nor the peer reviews of the narrative. I am instead here examining those who commented on the peer-reviews. Bruce claims to see a new methodology emerging in the peer-reviews. Bruce surveys different methods of ethics consultation from principlism to casuistry to narrative to pragmatism. She claims that there might be a new method developing – proceduralism. While she is certainly correct that something new is emerging in clinical ethics consultation, proceduralism is not a new method. Rather, the procedures have been elevated to a normative level by virtue of the fact that clinical ethics consultants desire to have professional standards and it is nice to be able to claim procedural neutrality.

In fact, the proceduralist turn is part of a long history in philosophical ethics in the late modern period. Indeed, the principlist approach is itself a product of that proceduralist turn. Eschewing thick metaphysical moral content – after all no one likes to fight over metaphysics – Beauchamp and Childress claimed that we should turn our attention to the mid-level principles that will assist us in making practical decisions. It matters not, they claimed, whether one held to thick metaphysical moral content of the Catholics or the Methodists, or any other non-religious metaphysical schema: all morally serious people can agree on these mid-level principles (Beauchamp and Childress 2009:. 2–5, 12–14).

However, as H. Tristram Engelhardt noted, Beauchamp and Childress imported too much thick metaphysical moral content under the guise of priniciplism (Engelhardt 1996: 57–58). The principles are merely the philosophical terms given to the kind of procedures that Beauchamp and Childress think will help us to make moral decisions. Engelhardt, in his masterpiece, *The Foundations of Bioethics*, calls for an even thinner proceduralism than that of Beauchamp and Childress, one that focused on forbearance rights and the principle of permission (Engelhardt 1996: 121–123). Likewise, the casuists claimed that Beauchamp and Childress were really still too abstract in their principles, because they are not sufficiently practical, and thus the procedures for doing ethics were still too beholden to abstract philosophy. No one really sits around and tries to trace mid-level abstract principles from the thick metaphysical moral commitments of patients (and of health care systems); they merely repeat what they did in the last case that was similar enough to the case at hand. Thus, casuists claim that the procedures for doing ethics well up from the ground of actual cases and not from mid-level abstract principles, which remain esoteric.

Moreover, when it comes to narrative, Beauchamp and Childress would claim that narrative is completely compatible with their proceduralist ethic (principlism) because patient narratives permit clinical ethicists to specify and balance principles given the patient's values (Beauchamp and Childress 2009: 16–24). Thus, contrary to Bruce's claim that proceduralism is new methodology, it seems clear that proceduralism is at the heart of all four methodologies that she spells out.  Principles, whether derived from thicker metaphysical moral commitments or from similar cases, are part of a proceduralist ethic. Policies are proceduralist. Thus, what Bruce claims to be a new methodology is in fact very old, as old as liberalism itself.

Rasmussen shows us the idiosyncratic requirements of the peer reviewers, telling us that we do not yet have shared procedures for writing up cases for attestation. Each of the peer-reviewers would require different things from Finder's narrative in order for his practice to be declared a good practice. The problem may not be with Finder's practice, but instead the problem might be his narrative choices (Rasmussen 2018: 151). Rasmussen makes her point in the context of discussing Armstrong's feminist critique of Finder's narrative. Finder inexplicably uses the patient's daughters' first names, but he uses "Mr. Zadeh" when referring to the patient's son. However, the discrepancy in reference doesn't give us a full picture of feminist considerations that might have been at play in this consult. There isn't enough evidence to know. The absence of evidence, Rasmussen notes, is not evidence of the absence of feminist concerns in the consult (Rasmussen 2018: 158).

However, Rasmussen's point should be extended to every clinical encounter. The plenum of any encounter, whether clinical or otherwise, can never be captured in any narrative, as Foucault noted (Foucault 1991: ix ff). Every narrative is a selection of what to include, with only the slightest of traces of what gets left out. Every narrative then is already an interpretation of the plenum of experience, and every narrative demands interpretation, because it is already an interpretation.1

<sup>1</sup>See Foucault's introduction to *The Birth of the Clinic*, where he notes that there is something about narratives that demand interpretation, that words beget words; interpretations beget interpretation.

Rasmussen's point extends well beyond Finder's use of names in "The Zadeh Scenario." Thus, it is not only true that his peer-reviewers have somewhat idiosyncratic concerns for what Finder ought to report; Finder also chooses what to report and what not to report. Extending Rasmussen's insight, I shall argue that the lack of standards for what should go into narratives for peer-review of clinical ethics consultation is merely a symptom of the problem; it is the surface problem, for we must first figure out exactly what clinical ethics consultation *is* before creating a standard of reporting, lest the *standard of reporting* become the *standard for the practice* of clinical ethics consultation, circumscribing what ought to happen in the practice itself, which precedes the narrative rendering of the plenum of the clinic.

This point is precisely the question taken up by Agich, both in his commentary in these pages and in previous work (see, for example, also Agich 2005, 2009). In his commentary on the peer-reviewers, Agich cites Alasdair MacIntyre's definition of a practice:

A practice may be identified as a set of considerations, manners, uses, observances, customs, standards, canons, maxims, principles, rules and offices specifying useful procedures or denoting obligations or duties which relate to human actions and utterances. It is … an adverbial qualification of choices and performances, more or less complicated in which conduct is understood in terms of a procedure. Words such as punctually, considerately, civilly, scientifically, legally, candidly, judicially, poetically, morally, etc., do not specify performances; they postulate performances and specify *procedural conditions* to be taken into account when choosing and acting. (Agich 2018: 139; emphasis added by Agich)

Agich gets it right on rules/procedures vs. the enactment of – indeed embodiment of – rules and procedures. Agich continues: "The rules involved in ethics consultation are first and foremost enacted and are phenomenologically manifested in and through the actions, cognitions, and perceptions of consultants" (Agich 2018: 142). Yet, Agich warns clinical ethicists to be careful about deploying rules.

The rules are not and cannot be reduced to a formal code or set of guidelines or procedures that might be followed like a recipe. Instead, the rules, even when articulated linguistically, as they certainly must be for various legitimate purposes, are just abstractions from the lived experience of the practice and, importantly, they are dependent upon that practice for their ultimate meaning and justification. In this sense, statements about ethics consultation methodology and theories of ethics consultation are *secondary* to the actual practice itself. (Agich 2018: 142)

The peer-reviewers would reduce the practice to the practice of following the guidelines. Virtually all the authors in Parts Two and Three, with the exception of Rosell & Johnson, and to a lesser extent Hynds, are applying abstract rules to the case. First, figure out what clinical ethics consultants do (Chidwick et al. 2010; Frolic and Rubin 2018) and then generalize it to be applicable beyond the case at hand (Frolic and Rubin 2018; Tarzian 2018; Bruce 2018). These are the abstractions – now not from theories, but abstracts from particular cases – that become the codes, procedures, and policies to now be applied by ethicists to all cases. Agich is warning clinical ethics consultants to be very careful.

Yet, even Agich misses something important that MacIntyre also says about practices. MacIntyre notes that practices are not just a simple form of doing; they are in fact very complex, because all true practices are aimed at something that not one peer-reviewer or one commentator mentioned: practices are aimed at goods. MacIntyre states:

By a practice, I am going to mean any coherent and complex form of socially established cooperative human activity through which goods internal to that form of activity are realised in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of that form of activity, with the result that human powers to achieve excellence, and human conceptions *to the ends and goods involved*, are systematically extended. (MacIntyre 1984 p. 187 [emphasis added])

Thus, planting seeds is not a practice, but farming is. Throwing a ball is not a practice, but baseball is.

I would argue that if clinical ethics consultation is a practice, it has to have normative goods toward which it aims. What are the goods of clinical ethics consultation? I do not mean the *goals*, but rather the *goods*. Are those goods allied with medical goods? How are they different from medical goods? From whence do the goods come?

First, as Agich discusses, we must focus on the actual doing of clinical ethics, not on the procedures which are post-hoc derivations from practice, or prescriptions by so-called experts. Tyrannies of proceduralism can arise from the bottom up or from the top down. When doing clinical ethics, a master practitioner is not just following a set of rules. She enacts, enlivens, indeed embodies the rules such that they are not mere rules applied, but have become actions aimed at goods. It is even odd to refer to them as embodied rules or procedures at all. She knows which rules to follow and which to reject. She knows which guidelines and policies are unnecessary and which guidelines or policies are indeed made ridiculous given the particulars of an encounter. That means that, second, the rules cannot and should not be reduced to a formal code. The rules, guidelines, processes, policies, and procedures are not formulae to be followed. The rules, guidelines, processes, policies, and procedures are codified for other purposes, which are tangentially important to the actual doing of clinical ethics. I shall return to this point a little later, but before I do I want to turn our attention to the peer-reviewers themselves.

#### **A Commentary on the Peer-Review Commentaries of the Narrative of the Doing That Is Clinical Ethics Consultation**

Finder begins "The Zadeh Scenario" (which is an interpretative summary of the actual consult) *in media res*, the action already afoot. In fact, the narrative begins with the concluding statement of a family whose mother has been in the hospital for weeks and sick for several years. Of course, peer-reviewers would prefer to have things begin at the beginning and to end at the ending. By beginning in the middle, Finder already disrupts the procedural flow that his peer-reviewers expect. Who initiated the consult, and for what purposes was it initiated? Several commentators (Hynds 2018) noted that beginnings always matter in case consults. But do they really? That may be where one wants a narrative to begin, but consults themselves are mired in the middle of the ongoing action, in the midst of the plenum. Everyone in medicine also knows that all consultants – clinical ethics consultants or medical consultants – like to have a delimited question. What does the requestor of the consult want the consultant to address? Thus, as Hynds points out, getting the question right is of first importance, and most assuredly Hynds is correct. Of course, Finder knows that getting the question delimited is of first importance; but he does not begin "The Zadeh Scenario" in this way. He does not lay out the value conflict for his peer-reviewers to see it very clearly, because in the actual doing of a consult it is often the case that the value conflict has not yet emerged, even while the clinicians caught up in the midst of the plenum may feel the resultant uneasiness. Much of the time, the request for a consult emerges because something does not feel right. In this case, it was the family that did not feel things were right. Finder is pointing to the fact that the clinical ethics consultant is the mid-wife bringing forth into clarity the uneasiness felt by those in the midst of the action.2

Every clinical ethics consultant – including Finder – knows that the first order of business is to establish the stakeholders, gathering their views on the case. Of course, the most important stakeholder is the patient. Many of the reviewers note that Ms. Hamadani is missing from "The Zadeh Scenario" (Frolic and Rubin 2018; Armstrong 2018; Tarzian 2018; Rosell and Johnson 2018). How could Finder have missed this? Of course, absence of evidence in the narrative is not in fact evidence of absence in the consult, as I (and Rasmussen) have already noted. Still, as tort law has taught medicine, naming absences is of utmost importance when regulating behaviors.

Yet, perhaps attuning to what matters, attuning to the particulars, Finder already knew that Ms. Hamadani could not participate in the conversation about her care. Finder, attuning to what matters – as all good consultants do – turns to the family, who are present and are actively engaged and are concerned. But to the hermeneutics of suspicion that tends to accompany the individualism regnant in American culture, something is strange about the zealotry of the family's concern (as Armstrong points out). Why didn't Finder's narrative tell his peer-reviewers that the family did indeed have the patient's best interests at heart? After all, one of them was at Ms. Hamadani's bedside night and day. Or could it be that ethics consultants are really just Western individualists who are always suspicious of family-members meddling in the individual patient's business? Surely, Finder knows that he should have bowed his head to autonomy, and traced out whether the patient had advance directives, powers of attorney, stated preferences – all the legal procedures meant to create the kinds of freedoms important in clinical ethics consultation.

<sup>2</sup>By bringing forth, I am meaning something akin to what Heidegger means in *The Question Concerning Technology* (1993 pp. 307–342). Technology challenges forth what it desires from the world, where Heidegger notes that in a *techne* something is brought forth.

Of course, clinical ethics consultants are always looking out for the best interests of patients. Finder points out that the patient is Persian. In fact, she is from Iran and is a traditionalist like her youngest daughter (Finder 2018: 33). Tarzian praises Finder for bringing up this important fact. She even notes the importance of the Persian concept of *T'aarof,* "a ritual politeness code that governs behaviors between individuals of different hierarchies and imposes obligations to mitigate emotional distress by way of avoiding negative feelings through specific culturally-engrained social etiquette" (Tarzian 2018: 78). Clinical ethics consultants should always demonstrate their cultural competency, an important indicator that they are not deploying colonial power structures on their patients, permitting patients to have their own ethical value systems; unless, of course, those ethical value systems and hierarchies violate Western understandings of individualism and autonomy. After all, ethics consultants are there mostly to deal in value conflicts, and clearly knowing the patient's values from the patient's own mouth would go a long way to be sure there were no conflicts between family members and to alleviate the distress of those who do clinical ethics consultation.

Yet, it seems to me that Finder mediated the case very nicely, mostly by listening and reflecting what was said back to the family. Finder did not intervene to *do* anything, prompting several of the peer reviewers to ask whether this was an ethics consultation at all. (Hynds 2018) I would argue Finder's peer-reviewers questioned this precisely *because* Finder's narrative had not documented the procedures. In short, Finder's narrative gave no attention to the typical things that his expert peerreviewers would want to see. That is because Finder's narrative focused more on the kind of doing that clinical ethics consultation is as opposed to focusing on the procedures that the experts would want to see.

Thus, while I agree with Rasmussen that we must understand exactly what goes into an appropriate narrative for peer review, I also think that we should reflect upon the kind of doing that clinical ethics consultation is, a doing that exceeds any narrative documentation, including procedural narrative documentation. Put differently, the peer-reviewers have already committed the error against which Agich warns us, namely that deploying the procedures and following them with rote vigor renders the doing of ethics more like planting seeds than like the practice of farming. In short, they are focused on doing clinical ethics consultation well. As such, his peerreviewers kept judging him as if he were merely planting seeds. But Finder was doing something more akin to farming; accordingly, Finder was focused on doing good in clinical ethics consultation.

#### **A Commentary on the Narrative of the Doing That Is Clinical Ethics Consultation**

It is important to understand that Finder belongs to the philosophical tradition of phenomenology. Phenomenology is itself a kind of methodology within philosophy. It begins with Edmund Husserl, who himself was attempting to ground science (Husserl 1970).3 On one hand, science had been caught between two philosophical ways of grounding understanding – rationalism and empiricism; this scientific grounding, because it had eschewed metaphysics, collapsed science into a positivism – where scientists began to think that they could have a one-to-one correspondence between a word and a thing. On the other hand, because science could not ground its knowledge in the world, Nietzschean irrationalism took hold, where reason had become a mask for power relations. Husserl held that if we could bracket our plain everyday stances toward the world – which are often mistaken – and attune to the things as they appear to us, we might ground science. Out of that bracketing, Husserl argues, we might be able to give an account of the eidetic features of experience so that we can ground science in intersubjective experience, which is a kind of very careful peer review. Thus, science need not be secured in rationalism or empiricism, nor in positivism. Nor does it succumb, Husserl thinks, to irrationalism.

Husserl's insights went way beyond securing science; in fact, his phenomenological methodology gave birth to several philosophical insights about the nature of existential experience, ethical experience, embodied experience, among many other aspects of human experience.4 Richard Zaner – a major figure in the American phenomenological tradition – can be credited for bringing phenomenology into the clinical ethics arena. Finder's practice of clinical ethics consultation is greatly informed by Zaner.5

One of the things that phenomenology asks us to do is to bracket our preconceptions – even our procedural preconceptions – about what we think matters in a case, and to attend to the things that matter to the patient, to the patient's family, and to the patient's caregivers. It asks us to pay attention to contexts and spaces and times and situations, and how those contribute to our perceptions of what matters. Because patient concerns are idiosyncratic and highly particular, we must bracket universalizing theories, whether those be deontological or utilitarian, or our cultural notions of liberalism or proceduralism. We must bracket our theories of autonomy and understand the way actual, particular people conceive themselves, which usually happens to be in contextual relationships of families, contrary to the dogmas of individualism, upon which Western bioethics – including clinical ethics – is built.

What Finder does with "The Zadeh Scenario" defies the typical framing of clinical ethics consultants, who are bent on procedures and Western ideals of individualism. Finder offers us what he has judged mattered in the case, not what most clinical ethicists think should have mattered to him. What ethics consultants think matters floats above all cases and seems to emerge from no particular case. Is it not possible

<sup>3</sup>Actually, many philosophers think that phenomenology begins with Aristotle, but that point is unimportant for what follows.

<sup>4</sup>Husserl started many philosophers off on many different trajectories, for example, Martin Heidegger, Emmanuel Levinas, Alfred Schutz, Edith Stein, Hannah Arendt, Jean-Paul Sartre, and Maurice Merleau-Ponty just to name a few.

<sup>5</sup>Finder, hired by Zaner and then serving as his colleague for the final 11 years of Zaner's career at Vanderbilt University Medical Center, was also mentored by Zaner – and the two remain personal friends.

that in the careful attunement of Finder's phenomenological reduction, he figured out that the patient was too gravely ill to participate in decision-making? Or perhaps through the reduction, he recognized immediately that the patient wanted her family to take all decisions on her behalf, because that is how a Persian family shows love in their particular cultural context. Shouldn't "The Zadeh Scenario" have just said so, then? No, not if Finder wanted to highlight other features that are more important to the actual doing of this particular case.