The field of bio- or medical ethics continues to show serious distress, appearances to the contrary notwithstanding. Not that such news will, I dare say, cause many tremors in the landscape of medicine or health care. What with the upheavals brought on by the open shift to commercializing health care—and the threats to the autonomy long enjoyed by many health professionals, physicians in particular, now experiencing the real anguish implicit to functioning as gatekeepers (Pellegrino 1986)—there has been quite enough to preoccupy physicians, researchers and others in health care’s increasingly embattled demesne.

Turmoil among the practitioners of ethics consultation will not, I think, create much disturbance among health professionals or insurers. Ethics must seem of slight concern in the face of the harsh economic, social, and political issues in our times, especially those posed by the shift to so-called ‘Obama-care’, much less recent changes in medicare. Fierce competition for scarce dollars, resources and patients often define the continuing scramble by managers seeking to set up alliances among physician practices, HMOs, hospitals and so on. Health care has surely become the industry it has long been heading toward. The grander scheme of things has been scarcely moved by the internal (and, at times, even overt) disputes that have preoccupied so much of the literature in ethics—especially in what’s come to be called clinical ethics. On such a massive landscape as that of health care in the United States, or other countries, images of small ponds and struggles over whose duck will squat and where, come readily to mind, on darker days, anyway.

However that may be, even more severe disputes than those I noted in the last chapters continue, some with considerable bombast. Still, although the scene may have changed it’s not hard to detect several recurrent themes. Some are explicit—in particular, the vexing question whether a person involved in clinical ethics is a sort of ‘moral expert.’ Other questions, always nagging at the edges of one’s conscience, remain a constant undercurrent, evident more by glancing blows of anxiety than direct address—I think especially of whether it makes any sense to hold an ethicist accountable for whatever is ‘done’, whether that ‘involvement’ carries with it any sense of responsibility.

Despite the fact that the quarrels over ethics in health care may seem only a somewhat pointless and in any case minor irritation to many health professionals, these questions nevertheless bear on that changing scene and themes of the new ‘system’ of health care. Although our moral compass may need serious re-calibration, if not wholesale overhaul, it has come to seem central to chart with great care such exotic new terrain as is plotted by those involved in the new genetics, especially that suggested by the key notion of responsibility in clinical ethics, not to say clinical medical practice.

In this Chapter, I wish to explore at least some of these matters, in particular a specific aspect of the more general issue that has been a recurrent if somewhat shadowy theme that continues to haunt a persistent dispute in the involvement of ethicists in health care, especially in that involvement known as clinical ethics consultation. As I am concerned specifically about the place and responsibility of ethics consultants, not so much as they serve on this or that hospital committee, but in particular within clinical situations, the questions of moral responsibility and legal accountability should be addressed strictly within the context of clinical conversation—which, it has long seemed to me, is best approached as a form of dialogue, (Zaner 1990) or, more recently, narrative (Charon 2006; Zaner 1994, 2004, 2012).

In previous Chapters, I went through much of the relevant historical background for clinical ethics. There, I noted that already with the first expression of what was at the time called medical (or: biomedical) ethics, there was a strong negative reaction by both physicians and many in the humanities. Struggling to contend with wholly new questions, physicians asked for help from philosophers and theologians in the effort, in the lingo of the times used by Dr. Samuel Martin, to ‘humanize’ practicing physicians (Martin 1972). Dr. Martin posed the essential questions—which, unhappily, have still to be seriously appreciated: what are the humanities really all about? How can they most effectively transmit their art? Widely regarded at the time as ‘experts in human values,’ a new, sibilant name was eventually concocted: ‘ethicist.’ But no more than named than they came under severe fire, and philosophers who dared to enter the new arena found themselves widely regarded as interlopers, merely theorists in the land of highly practical therapists, and were “well advised,” as one philosopher admitted, “to limit their role as classroom or clinic casuists.” (Ruddick 1981). They were not seen as especially helpful in the eyes of many physicians (Fleischman 1981).

At about the same time, I also noted, a widespread ‘backlash’ developed against what the former editor of The New England Journal of Medicine editorialized as “the intrusion of Big Ethics” (Ingelfinger 1975). As Daniel Callahan put it in 1975, there was a “sense that much of what is labeled ‘ethics’ represents a casual and irresponsible mischief-making, led by people with little understanding or research or practice” (Callahan 1975, p. 18). The point was not lost on many physicians.

It was, in fact, emphatically endorsed by Mark Siegler (1979) and turned with a vengeance onto medical humanists. As I noted earlier, arguing that they exhibit a clear “disdain for traditional, Hippocratic, bedside medical ethics,” Dr. Siegler insisted that philosophers can never be more than mere observers at clinical events. Should one of them show up for some reason “in the trenches” with patients and physicians, he or she could only display merely “counterfeit courage,” rather like that of a non-combatant trying to hob-nob with real soldiers—rather like present-day journalists ‘embedded’ in a military unit. The physician, on the other hand, “is never a mere observer” but is precisely on the firing line: accountable to, and held accountable for, patients. Philosophers may have their rightful place, but it is not in the clinic (much less the laboratory). Such academics and scholars belong, if anywhere, only on committees or panels deliberating policy—or, possibly, in classrooms educating students (though I wonder whether Siegler would have included medical students).

Although bioethics, as the broader field came to be called, has since become something of a veritable growth industry,¹ the issues raised in the early days continue, if anything, with even greater intensity even though so-called ethicists can now be found in most every major hospital in the United States and many other countries. Not even the fact that some physicians have begun to join the ranks of ethicists has done much to change this landscape; if they ‘consult’ in ethics, it is nonetheless the fact that they are physicians that legitimizes their presence. And, as emphasized earlier, to expect physicians (or patients/families) to be capable of conducting deliberative, probing conversations about the respective fundamental and often contentious sense of worth each participant may hold, not to mention hopes, fears, or issues of trust, seems at best unrealistic. An essential component of these moral conversations is concerned not only with the patient and family, but with the physician’s own professional responsibilities and personal ethics—even, at times, with institutional values and social norms.

The key challenge is nevertheless perfectly clear. It does not concern, as was thought even in those earlier days, the curious notion that ethicists are, or take themselves to be, “moral experts” (Beauchamp 1982; Noble 1982, pp. 7–9, 15). Martin and Siegler had it right, it seems to me, for at the heart of that discussion was and remains another question, rather more difficult to confront: what, in the end, is the ‘humanist’ all about? Woven through that tapestry is a curious and even bizarre thread: can a humanist or philosopher really be a clinician? More forcefully, how can such persons possibly be held accountable? What, after all, do they do? Whether regarded as expert or not, in a word, when the philosopher or theologian do whatever it is they do, is that something for which they can be understood as somehow responsible? The discussions of the past two Chapters clearly stand in need of serious examination.

What I have in mind is quite apparent in a particularly abrasive example of the dispute (Ethics Consultants 1993, p. 2). It is one that I think put the concerns of many health professionals in a wonderfully concise way. In an article that provoked a quite lively discussion, but without any apparent awareness of the brief history I’ve traced in this book, the attorney, Giles Scofield, takes it simply for granted that many if not most of those who accept the idea and role of ‘ethicist’ invariably take themselves to be “professional experts” in ethics (Scofield 1993). While such persons of course have the appearance of being user-friendly, as it were, he believes that the truth is just barely concealed beneath that guise: a nefarious urge for power, authority, and legitimacy; that is, humanists or philosophers who call themselves ‘ethicists’ are merely in pursuit of the gold coin of our social domain, recognized “professional status.”

To make his point, Scofield considers what he assumes are the four “basic elements of a profession” (Scofield 1993, p. 417). (1) Every true professional possesses “a specific body of esoteric knowledge.” Ethics consultants do not possess anything like that, and even if there were such knowledge, (2) it could not be applied in the manner of any true professional, that is, “in an objective, reliable, and ‘scientific’ fashion” (Scofield 1993, p. 418). Indeed, his criticism gets into high gear at that point rather quickly. If we consider that the “epistemological foundations” of ethics consultation are surely dubious at best, that results of “ethical reasoning” are inherently variable and clearly open to bias and even bigotry, are unpredictable and non-reproducible—then it is obvious, to him at least, that the very idea that ethics consultants possess scientifically evident and professional knowledge is offensive, even outrageous.

(3) Professionals must be capable of self-regulation. But one can hardly expect this burgeoning field of “moral experts” to be professional in this sense. Contrary to that, in fact, there is as yet no trace of anything remotely like a professional code. Combine that with an historical record that makes plain their inability to conduct genuine internal self-reviews—the dismal record, in fact the complete absence, as he sees it, of any effort to police scoundrels and ineptitude in the field of ethics or ethics teaching—and it is clear that this field fails miserably to fulfill criteria of a genuine profession. Not only that, but, he argues, there is the well-known resistance by those in the humanities to external scrutiny. Accordingly, he asserts, thorough skepticism (if not outright cynicism) is surely justified.

(4) Genuine professionals, furthermore, both individually and collectively act “in the public interest” generally, and for the benefit of patients or clients specifically. He then considers but swiftly rejects the notion that ethics consultants, despite everything, might be motivated to act generously, in the “public interest,” out of altruism and not self-interest. For all the sworn hearts and raised hands, however, the very idea flies in the face of political realism and what Scofield believes is their real agenda: power and authority, not to mention salary and prestige—hardly indicative of serving the public welfare. So, he asserts (without evidence) that however noble is the spirit of traditional ethics, that is not necessarily transferred to its practitioners and, in the case of those who pursue ethics within medicine, this spirit of generosity is simply absent.

As if all that were not enough, he argues finally that (5) every genuine professional is and must be an expert in the field from which the profession grows and to which it is ultimately responsible. Therefore, he asserts, to be an ethics consultant is quite obviously to presume expertise in ethics. This means, for him that such persons are engaged in “applied normative ethics.” The “ultimate problem” with that endeavor, however, is that each ethicist avows different and, one supposes, incommensurable claims,² none of which can “be true in a pluralistic, democratic society founded on the belief that each person is the moral equal of every other” (Scofield 1993, p. 423).³ In such a society, there simply cannot be any moral experts, and anyone who presumes to wear that mantle is “essentially antidemocratic,” his or her “claim to ‘help’ others is nothing other than a latent assertion of power and authority” (Scofield 1993, p. 423).

It goes without saying, of course, that Scofield would never want to find himself in some forlorn intensive care unit with little more than tubes and plugs to remind observers of his humanity, only then to suffer the bedside appearance of some “moral expert!” His rather colorful disdain to the side, what’s he really troubled about? Whether cloaked in his undefended and poorly defined adherence to “democratic pluralism,” or the more straightforward attack on the ethics consultant’s presumed lust for “professional” status, the passion of his plea seems to me unmistakable. Beneath his taken for granted trust of “professionals” is his undefended presumption of a profound distrust: the very idea of a “moral expert” is repulsive. Which is to say, he simply asserts that it is incoherent that any philosopher or other humanities scholar (no mention is made of lawyers, though there are quite a few who have entered the ranks of we ‘rank’ ethicists) can possibly be held accountable for words or actions in clinical or research settings.

Scofield takes it simply for granted that every one involved as an “ethicist” is a theorist engaged in “applied normative ethics.” Although he never wonders what the place of any “theory” might be in medicine, he apparently believes, but again without giving reasons, that there simply is no place for “ethics theorists” in that world. For that matter, none of the ethicist’s claims, given the characteristically severe disputes among their ilk, could possibly “be true in a pluralistic, democratic society founded on the belief that each person is the moral equal of ever other” (Scofield 1993, p. 422). So, each individual is his or her own moral expert, and any claim to the contrary is mere pretense, a sham.

He nonetheless tosses a small bouquet, for there is some “value to others” in what clinical ethicists know and have been doing before they got seduced out of their classrooms: they educate. Which, clearly, is quite an odd remark, as it would only keep in front of young and gullible students what he fervently wants evicted from the bedside and case-conference room—as if unadorned ineptitude and cupidity at the latter were not quite enough to undercut the former. Here, he merely reaffirms the old notion of the utter irrelevance of philosophy, since, like many people, he thinks that nobody is harmed in college courses—nor, for that matter, helped very much.

Scofield was quite delighted with his assault—many of whose shots are doubtless quite cheap—for it in any event provoked several critical responses. He clearly thinks this fact gives his tirade some legitimacy. And, he thinks this meant that “I struck close to home,” as he avers in his later reply to his critics (Scofield 1995).

In fact, however, most of his shots hinge on the very narrow and unexamined assumptions I just noted, many of which are clearly pointed out by John Fletcher (1993), Albert Jonsen (1993), Christian Lilje (1993) and Donnie Self (1993) in their various replies. Oddly, or perhaps not, he ignores the only respondent, Judith Wilson Ross (1993) who seems to agree with him, at least about the main role ethicists should play. She contends, “education is the function in which ethics consultants engage most often and persistently.” But Ross goes Scofield one better, for placing clinical ethicist into what are essentially academic endeavors in the hospital, “is puzzling at best and impossible at worst” (Ross 1993, p. 445). Not only do ethicists come on that scene with “precious little endorsement from anyone in significant authority” (Ross 1993, p. 445). Beyond that, it is evident to Ross that such a hospital role carries with it reasonable expectations by health professionals that are at odds with the role of simple “educator.” Hence, the fact that ethicists invariably appear as “offensive intruders trying to tell other people how to do their business” (Ross 1993, p. 446) is not in the least surprising.

Accordingly, Scofield’s cynicism seems if anything underscored by Ross: “I think that clinical ethics consultants are up to something else,” (Ross 1993, p. 445) she alleges. Nor does it seem at all difficult for her to figure out what they—more charitably, many of them—are up to under the guise of the role of “hospital educator:” the ill-concealed effort to create a new role and profession, “beeper ethicist,” who responds day and night to “ethical crises.” The whole thing, she believes, is little more than an oxymoron, whether conceived as hospital educator, beeper ethicist, or clinical ethicist. Ross thus clearly thinks that Scofield is very much on target, since, for the ethicist to be effective in the hospital environs surely means that they look and function like doctors, “as crisis managers…in acute and interventionist ethics,” (Ross 1993, p. 447) a role better left to those more accustomed to such crises (one hears Siegler and others, though unmentioned, in the background of her argument).

If Ross is nonetheless more tempered in her assessment of clinical ethics consultants than Scofield, she nonetheless agrees with him in most particulars. But it didn’t apparently dawn on her that Scofield’s acid comments betray little knowledge or understanding of the actual nature and demands of clinical contexts or of ethics consultation, nor is there much in Ross’ commentary that reveals any significant experience on her part in these settings. In fact, both of them, for at best obscure reasons, attack clinical ethics on essentially political grounds—and to some extent pedagogical ones. Neither, however, shows any sense of the substantial differences between politics or education at the bedside and what might be required, say, in ethics committees or policy deliberations. Neither betrays any relevant experience in what they nevertheless severely criticize. Neither, to be blunt, knows whereof he or she speaks.

It is of course perfectly true, as I’ve argued at length in previous Chapters and elsewhere, (Zaner 1988/2002) that federal or state regulations, say, are often among the issues that help configure a particular clinical encounter—the ‘Baby Doe’ and, in some states, ‘assisted suicide’ enactments are obvious examples for some clinical situations. At the same time, however, it ought to be just as evident that the political considerations at the macro level are quite different from those presented in the micro, bedside, context. There is no way, surely not the simple way presumed by Scofield, to go from the one to the other.

The same must be noted regarding education, for while it is obviously true that educating in a college class is quite different from educating at the bedside or in a clinical case conference—as I’ve already discussed earlier—both Ross and Scofield equivocate. In the one case, Scofield’s bouquet to philosophers as educators, as noted, simply presumes without evidence that ethicists should depart from the bedside and return to the classroom. In the other, Ross apparently thinks that the move from the classroom to the “impossible” (or at best “puzzling”) function as “hospital educator” frankly opens the irresistibly tempting door to “beeper ethicist,” seducing academics to play like doctors and along the way flatly deceiving health professionals and patients/families.

But neither Scofield nor Ross seems in the least bothered by the pointed and wholly pertinent questions Dr. Martin put to the ‘humanities’ long ago: what, exactly, are they all about and, echoing his lament, if they are in any way helpful, how can their concerns be translated into clinical settings so as to help bring about ‘the new physician’ that so concerned him and others? Both Scofield and Ross would presumably agree with Lilje’s ironic comment about keeping academics in the classroom: “in this least dangerous setting, ethics did not harm much, nor help much either!” (Lilje 1993, p. 440). But is that true, any more or less than it might be true about ethics in clinical settings?

Difficult and puzzling though it may be to one who finds classroom lecturing about ethics somewhat problematic, what reason is there to suppose that providing an opportunity for a patient to discuss her understanding, hopes, and fears candidly is unhelpful to that patient, or that the patient learns nothing from such a conversation? Furthermore, while it may be true that some ethicists might indulge in “a latent assertion of power and authority” at the bedside—though, even if Scofield is correct, it is surely open to question whether and how his own patently political interpretation bears on the dimensions of ethics—such assertions are in any case equally possible in the classroom.

In any event, one can only wonder how Scofield himself could ever know if or when there really is an “assertion of power and authority” by any so-called ‘ethicist’, latent or not, without actually going to the bedside himself and either carefully observing what goes on or, better yet, doing what he regards as illicit when practiced by others. More than that, he seems blissfully unaware that what he warns against at the bedside can and does go on in the classroom, not to mention that such “assertions of power and authority,” just as likely occur on the part of doctors and nurses as by ethics consultants—if he’s right about the hospital then he must also be right about the classroom. In either case, while his words trumpet warnings, they have little backing or warrant; he simply does not know, as Jonsen and Self also suggest, whereof he speaks.

Consider two strands in this turbulent stream, then. On the one hand, Scofield says that ethics consultation is misconceived because it doesn’t fit into his understanding of the proper political scheme, that is, a pluralistic democracy where anybody’s moral opinion is as good as any other. Which, however, simply assumes a ready translation from the political norms of society to the more fine-grained relationships at the bedside. On the other hand, neither Ross’s nor Scofield’s views provide an account for how to understand and assist individuals in clinical or in any other specific, situational encounter. Either there are no ethical problems at the bedside, then, or else the only way to consider them consists of letting physicians handle such problems—even though they can hardly claim any more insight into ethics than Scofield can claim knowledge of, say, physiology.

All things considered, it seems quite clear that Scofield’s, and possibly Ross’s, real target is not at all the ethicist at the bedside—however puzzling this is to both of them—but rather John Fletcher and the controversial fight he was at the time leading to certify, license, and regulate the burgeoning field of clinical ethics. What is needed to counter the abuses Scofield fears, Fletcher believes, is uniformity—of education, training, role definition, and formalized accountability by ethics committees (Fletcher 1993, p. 432). Although Fletcher wants to “put to rest unreal discussion of a ‘profession’ of clinical ethics,” (Fletcher 1993, p. 433). Scofield is quick to point out that is precisely what Fletcher and the Board of Directors of the Society for Bioethics Consultation were in fact seeking. If anyone retains any doubts about that, Scofield gleefully asks that we merely consider that, as the President of the S.B.C. has stated, one of S.B.C.’s goals is to “maintain the S.B.C. role in the process of professionalization of bioethics consultation” (cited by Scofield 1995, p. 226).

Since that is the real point of his critique, Scofield feels at liberty to lampoon Fletcher’s call for “regional bioethics networks”—a proposal that is, Scofield recognizes, a plainly political and economic move to corner the market—presumably for the S.B.C. and its accomplice, the Society for Health and Human Values, in the task force to create just such standards (Scofield 1995, p. 225). Beneath Scofield’s evident suspicion is an obvious distrust over what he believes is, perhaps correctly, patent political maneuvering among the very ‘professionals’ who are yet leery of ‘professionalism’.

Just that prospect, on the other hand, is what deeply concerns Jonsen, when he emphasizes how wrong-headed is Scofield’s⁴ understanding of clinical ethics: there simply “is no orthodoxy” among clinical ethicists but rather “considerable heterodoxy” (Jonsen 1993, p. 435). Of course, that may be but another reason for its critics to resist ethics consultation: if pluralism or heterodoxy is the proper name, doesn’t that make the very idea of “beeper ethicist” all the more troubling? After all, if ethicists want to be ‘like’ doctors, isn’t it only reasonable, even imperative, that when ethicists are asked to consult, doctors and patients should reasonably expect something like consistent appraisals and recommendations, no matter which ethicist arrives at the bedside? But if ethicists are, as Jonsen says, so different, doesn’t that of itself shatter the very idea of ethics consultation?

So where does all this lead? I, for one, am left with much the same hollow dismay and deep discomfort—and the same questions—I faced when I first came onto this scene in the late 1960s. If anything, I am even more deeply troubled, Jonsen’s favorable reference to me, or Scofield’s neglect, notwithstanding. For I must confess that I have been daily engaged for many years in precisely what Scofield lambastes as ill-begotten: a great many consultations about ethical matters with patients and their families, friends and surrogates, as well as physicians, nurses, social workers, chaplains, therapists, even (heaven forbid!) hospital managers and CEOs. Never mind that nothing of what I’ve done even remotely resembles anything of what Scofield or Ross assert.