Bioethics Forum Essay
Where is Clinical Ethics in the Revised Hospital Accreditation Standards?
It’s remarkable that in the wake of Covid-19 and all the ethical challenges and health care inequities associated with the pandemic, The Joint Commission, which accredits our nation’s hospitals, eliminated the sole element of performance that governed clinical ethics services: “The hospital follows a process that allows staff, patients, and families to address the ethical issues or issues prone to conflict.”
The general argument seemed motivated by the assumption that ethics was in the air and that these norms have been well incorporated into the daily life of the hospital. This performance standard has been replaced with language asserting the critical importance of equity, an endorsement we certainly applaud and welcome. But why does one need to be exchanged for the other, in the service of the good?
The Joint Commission first included the performance standard for clinical ethics services in 1992, in response to the Cruzan case, as a hospital mechanism for resolving ethics and value questions in patient care. Now, the patient rights section only addresses organizational ethics, namely that, “Ethical principles guide the hospital’s business practices.”
In our view, removal of the clinical ethics element both impedes achieving the objective of equity and undercuts progress toward fostering clinical and organizational ethical practice within health care institutions.
In our experience, a subtext of clinical ethics is giving voice to the voiceless, marginalized, and socially vulnerable patients and families who need advocacy and the bedside discernment provided by clinical ethicists. A 2017 paper in the Hastings Center Report from a leading academic medical center speaks to the vulnerability of those who become disenfranchised due to the power structures of hospital care. The paper revealed that surrogates who persist in requesting cardiopulmonary resuscitation, in opposition to a hospital policy on futility, were disproportionately nonwhite (42.1%), foreign born (47.4%), and spoke a primary language other than English (15.8%). The needs of these communities have been the catalyst for diversity, health equity, and inclusion initiatives. They are also the beneficiaries of clinical ethics consultations whose work was addressed by the deleted Joint Commission performance element.
In the hospital, the stated pursuit of health equity without a sanctioned process to address clinical issues at the bedside is not equity at all. It is a shallow platitude that does not promote this important clinical and societal objective. To remove the ethics standard and replace it with one affirming health equity is to do a disservice to socially vulnerable patients and families by not taking into account their needs and the protections often provided through the ethics case consultation process.
It further marginalizes ethics consultation services, which have depended upon The Joint Commission standard to gain some semblance of institutional recognition and funding. The omission of an ethics mandate makes clinical ethics services aspirational and unfunded, imperiling ethics programs nationwide.
Moreover, a clinical ethics process is invaluable more generally for hospital patients, families, and staff members. Disputes and concerns that clearly implicate medical ethics arise in many guises–end-of-life decisions, allocation of scarce resources, mediating community mistrust and misinformation, disputes about the appropriate treatments or decision-makers, and more. Such clinical ethics issues are entirely distinct from issues of organizational ethics, and not addressed by organizational business practices.
We are among the members of New York’s Empire State Bioethics Consortium who were surprised to learn of this development, which took effect in December 2022, apparently without involvement from, or consultation with, the bioethics community, let alone the community at large. Our impression is that other bioethics leaders across the country were also unaware of this development. At the time when The Joint Commission was revising standards, bioethicists were actually advocating for a stronger clinical ethics standard because the deleted standard was vague and inadequate.
Given the bioethics community’s unawareness of this change in Joint Commission standards, we feel obliged to share it with our colleagues through Hastings Bioethics Forum to foster the national discussion about this issue that it so clearly deserves. And writing from New York, we feel especially well placed to bring this forward. In our state, an ethics review process is mandated by the Family Health Care Decisions Act, a law governing surrogate decision-making. Therefore, our standards are more stringent than those of The Joint Commission.
We applaud The Joint Commission for creating a new standard that states that “reducing health care disparities for the [organization’s patients] is a quality and safety priority” and for developing Health Care Equity Certification. Nonetheless, the substitution of a health equity standard for the ethics one is not a remedy for population disparities. There is no reason that ethics should be swapped out for equity. It is not an even exchange as the two are better together.
We should use this unfortunate policy change to foster a clear deliberate process that involves all stakeholders who have a claim on ethical practice. We should use this detour in due process as an opportunity to revisit the retired standard and make it stronger, affirming the interdependency of ethics and equity. This process should include patients and families, practitioners, and hospital leadership. Given the importance of The Joint Commission accreditation process to postgraduate medical education and patient safety, stakeholders should also include educational bodies and government regulators, which use accreditation as a standard for residency program eligibility and the oversight, certifying, and licensing of health care institutions. Each of these constituencies needs to have a seat at the table to chart the future course of ethics and equity in health care institutions. Anything less than full transparency would be an affront to the common morality that informs our collective work and inspires our aspirations for the many communities who entrust us with their care. As bioethicists we look forward to a constructive dialogue with our colleagues at The Joint Commission as we collaborate to promote ethics and equity in our nation’s hospitals.
Renee McLeod-Sordjan, DNP, PhD.c, F.A.A.N., HEC-C, is director and system chair of the Division of Medical Ethics at Northwell Health. She is a professor and the inaugural Vice Dean of the Hofstra-Northwell School of Nursing and Physician Assistant Studies.
Robert Swidler is general counsel to St. Peter’s Health Partners in New York’s Capital Region and St. Joseph’s Health in New York’s Central Region. He is the author of several journal articles and book chapters on medical ethics and health policy, and was one of the initial directors and officers of the Empire State Bioethics Consortium.
Joseph J. Fins M.D., M.A.C.P., F.R.C.P., is the E. William Davis Jr. M.D. Professor of Medical Ethics, a professor of medicine and chief of the division of medical ethics at Weill Cornell Medical College; Solomon Center Distinguished Scholar in Medicine, Bioethics and the Law and a Visiting Professor of Law at Yale Law School; and a member of the adjunct faculty at the Rockefeller University. He is a Hastings Center fellow and chair-elect of the Center’s board of trustees.
The authors are members of the Empire State Bioethics Consortium. The ideas and views are not necessarily those of ESBC or institutions with which they are affiliated.
This is the first in a series of three essays on a recent change in ethics performance standards made by the country’s leading accrediting body for hospitals. The next essay will explore the distinction between ethics and equity, and the third essay will outline recommendations for change.
This Hastings Bioethics Forum essay is timely, important, and actionable. Clinical ethics and equity objectives need to be connected through standards, structures, practices, and patient and family engagement. The Joint Commission clinical ethics requirement should be restored and strengthened. Gilbert S. Omenn, MD,PhD, University of Michigan Medicine
I too ask the question of how it is that medicine, a doctor, is not allowed to exercise her or his sworn oath to firstly do no harm. Where is the oversight of conscience? It is within the hands of administration, whose power supercedes a medical doctors’ power. Beyond that it is found in the unscrupulous marriage of big insurance and administration. Beyond that it, they moral/ethic mandates, are stretched thin and is found in the blatant and egregious socio-incestous marriage of church and state. Too big to fail, does not mean, can do no wrong. Forgive me if I have stated the obvious.
J S Columbia
In human affairs generally, “when you hear hoofbeats” think incompetence before malice. But with as many eyes as must have reviewed such a revision, it’s hard not to think that the observed result involves a problematic agenda. I look forward to hearing how fares your “constructive dialogue with our colleagues at The Joint Commission.”
Kudos to Hastings Center for publishing and the writers for this important 3 part series on the importance of ethics in healthcare.
Your concerns have impacted policy.
The Joint Commission released an updated Element of Performance in the May 2023 issue of Joint Commission Perspectives©. This update may be a result of the concerns from ASBH, other organizations, and individual practitioners shared with the Joint Commission when their most recent streamlining appeared to eliminate previous ethics standards. Effective August 27, 2023, Standard LD.O4.02.03 reads: “Ethical Principles guide the [hospital’s] business practices”. Related Element of Performance 1 is has been updated to “The [hospital] develops and implements a process that allows staff, [patients], and families to address ethical issues or issues prone to conflict.”