Testifying as an expert ethics witness raises a number of important issues. These include: the prospect of generating adverse publicity for oneself and one's institution, avoiding bias, giving testimony that is at odds with testimony given by colleagues, potential conflicts of interest introduced by reimbursement, the need of those who hear the testimony of bioethicists to appreciate the nature of moral expertise, the difficulty of assessing the quality of legal evidence which emerges from adversarial legal proceedings, and the need to (...) consider what weight should be assigned to expert ethics testimony. Along with these issues, what might constitute sexual misconduct is addressed in the essay so that readers can review the decision-making of the author in two cases. (shrink)

The role of an expert witness in ethics, as part of a legal proceeding, is examined in this essay. The essay argues that the use of such expertise rests on confusions about normative and non-normative ethics compounded by misunderstandings about the challenges of moral argument in secular, morally pluralistic societies.

The moral expertise of clinical ethicists is not a question of mastering codelike theories and lawlike principles. Rather, ethicists are architects of moral space within the health care setting, as well as mediators in the conversations taking place within that space.

Following up on a 1989 paper on the subject, this essay revisits the question of ethical expertise in the court room. Informed by recent developments in the use of ethics experts, the authors argue 1) that the adversarial nature of court proceedings challenges the integrity of the ethicist's pedagogical role; 2) that the use of ethics experts as normative authorities remains dubious; 3) that clarification of the State's interest in “protecting the ethical integrity of the medical profession” is urgently required; (...) and 4) that the expertise of the ethicist may be more appropriately used in advising the legislature than in influencing the court. (shrink)

On Human Conduct is composed of three connected essays. Each has its own concern: the first with theoretical understanding, and with human conduct in general; the second with an ideal mode of human relationship which the author has called civil association; and the third with that ambiguous, historic association commonly called a modern European state. Running through the work is Professor Oakshott's belief in philosophical reflection as an adventure: the adventure of one who seeks to understand in other terms what (...) he already understands, and where the understanding is sought is a disclosure of the conditions of the understanding enjoyed and not a substitute for it. Its most appropriate expression is an essay, which, he writes, 'does not dissemble the conditionality of the conclusions it throws up and although it may enlighten it does not instruct.'. (shrink)

Medical ethics committees are increasingly called on to assist doctors, patients, and families in resolving difficult ethics issues. Although committees are becoming more sophisticated in the substance of medical ethics, little attention has been given to the processes these committees use to facilitate decision-making. In 1990, the National Institute for Dispute Resolution in Washington, D.C., provided a planning grant from its Innovation Fund to the Institute of Public Law of the University of New Mexico School of Law to look at (...) what ethics committees can learn from facilitation and mediation techniques. The study's thesis was that, if adapted for use by medical ethics committees, facilitation and mediation techniques can be helpful to those bodies in case review consultations and in other internal committee processes. This article reports on that project. (shrink)

The aim of this essay is to describe and reflect upon the concrete particulars of one academician's work as an expert ethics witness. The commentary on my practices and the narrative descriptions of three cases are offered as evidence for the thesis that it is possible to act honorably within a role that some have considered to be inherently illicit. Practical measures are described for avoiding some of the best known pitfalls. The discussion concludes with a listing of the distinctive (...) competencies and understandings that are useful in serving as an expert ethics witness. (shrink)

This article reflects on the author's modest experience as an expert witness in two trials: Osheroff vs. Greenspan (1983), and In the Matter of Baby K (1994). Bioethicists' expertise as scholar-teachers and consultants on particular issues merits qualification by judges as expert witnesses. The article argues that a different kind of expertise – strong moral advocacy – is required to be an effective expert witness. The major lessons of expert witnessing for the author concern the demands and strains on the (...) bioethicist's role as scholar, teacher, and consultant. The Baby K case is analyzed in some detail, due to its importance for bioethics, ethics consultation, and the testimony of bioethicists on either side of the case. Rules of thumb are offered to guide decisions as to choices regarding expert witnessing, as well as a discussion of the interaction of law and bioethics. (shrink)

There is great skepticism about the admittance of expert normative ethics testimony into evidence. However, a practical analysis of the way ethics testimony has been used in courts of law reveals that the skeptical position is itself based on assumptions that are controversial. We argue for an alternative way to understand such expert testimony. This alternative understanding is based on the practice of clinical ethics.

How closely involved with hospital ethics committees should patients and their families become? Should they routinely have access to committees, or be empowered to initiate consultations? To what extent should they be informed of the content or outcome of committee deliberations? Seeing ethics committees as the locus of competing responsibilities allows us to respond to the questions posed by a patient rights model and to acknowledge more fully the complex moral dynamics of clinical medicine.

This essay focuses on how casuistry can become a useful technique of practical reasoning for the clinical ethicist or ethics consultant. Casuistry is defined, its relationship to rhetorical reasoning and its interpretation of cases, by employing three terms that, while they are not employed by the classical rhetoricians and casuists, conform, in a general way, to the features of their work. Those terms are (1) morphology, (2) taxonomy, (3) kinetics. The morphology of a case reveals the invariant structure of the (...) particular case whatever its contingent features, and also the invariant forms of argument relevant to any case of the same sort: these invariant features can be called topics. Taxonomy situates the instant case in a series of similar cases, allowing the similarities and differences between an instant case and a paradigm case to dictate the moral judgment about the instant case. This judgment is based, not merely on application of an ethical theory or principle, but upon the way in which circumstances and maxims appear in the morphology of the case itself and in comparison with other cases. Kinetics is an understanding of the way in which one case imparts a kind of moral movement to other cases, that is, different and sometimes unprecedented circumstances may move certain marginal or exceptional cases to the level of paradigm cases. In conclusion, casuistry is the exercise of prudential or practical reasoning in recognition of the relationship between maxims, circumstances and topics, as well as the relationship of paradigms to analogous cases. (shrink)

The obvious appeal and growing momentum of clinical ethics in academic medical centers should not blind us to a potential danger: the collapse of critical distance. The very integration into the clinical milieu and the processes of clinical decision making, that clinical ethics claims as its greatest success, carries the seeds of a dilution of ethics' critical stance toward medicine and medical education. The purpose of this paper is to suggest how this might occur, and what potential contributions of ethics (...) to medicine might be sacrificed as a result. Medical sociology will be used for comparison. Sociologists have found that they may function either as students and critics of established medical practices and educational philosophies, or as collaborative participants in them — but rarely both. It may be that professional ethics is most effective when it plays the role of stranger rather than insider, and is continually able to question the most basic assumptions and values of the enterprise with which it is associated. As with medical sociology, ethics and humanities must ask to what extent their desire for acceptance in the clinic requires their acceptance of the clinic: specifically, acceptance of basic assumptions about optimal ways of organizing medical education, socializing physicians-in-training, providing care, and even of defining medical ethics itself. The paper concludes by recommending that ethics reassert its strangeness in the medical milieu even as it assumes a more prominent role within the medical center. (shrink)

In this paper we attempt to show how the goal of resolving moral problems in a patient's care can best be achieved by working at the bedside.We present and discuss three cases to illustrate the art and science of clinical ethics consultation. The sine qua non of the clinical ethics consultant is that he or she goes to the patient's bedside to obtain specific clinical and ethical information. Unlike ethics committees, which often depend on secondhand information from a physician or (...) nurse, clinical ethics consultants personally speak with and examine patients and review their laboratory data and medical records. The skills of the clinical ethics consultant include the ability to delineate and resolve ethical problems in a particular patient's case and to teach other health professionals to build their own frameworks for clinical ethical decision making. When the clinical situation requires it, clinical ethics consultants can and should assist primary physicians with case management. (shrink)

Considerable debate has occurred about the proper role of philosophers when offering ethics consultations. Some argue that only physicians or clinical experienced personnel should offer ethics consultations in the clinical setting. Others argue still further that philosophers are ill-equipped to offer such advice, since to do so rests on no social warrant, and violates the abstract and neutral nature of the discipline itself.I argue that philosophers not only can offer such consultations but ought to. To be a bystander when one's (...) discipline does offer insights and methods of value discernment is pusillanimous. But this position requires a view of clinical medical ethics as one that arises out of the clinical practice of medicine, and not just from an application of general ethical principles to the practice of medicine. I conclude with some skills that trained philosophers can bring to the consultation service, and note that all consultations are in the form of recommendations that the patient, family, and physician are still free to accept or reject. Philosophers in the clinical setting do not make decisions. (shrink)

Increasing complexities facing physicians negotiating the bedside decision continue to fuel the debate over who is the appropriate party to offer ethics consults, should one be needed, during the decision-making process. Some very good arguments have been put forth on behalf of clinical ethicists as being the proper and best party to engage in ethics consultations. However, serious questions remain about the role of the clinical ethicist and his ability to provide the necessary level of objectivity called for in an (...) ethics consult.I argue that the clinician's professional psyche, or mode of thinking as a professional, leaves him little room to maneuver as an objective and detached third party ethics consultant. Several factors are cited and discussed that greatly influence the analyses applied to a case problem by physicians. The most formidable of these factors are habits and the practice of defensive medicine. I conclude that clinical ethicists are less suited for the overall tasks required of an objective consultant in medical cases that appear to involve insurmountable ethical issues. (shrink)

For the last century, moral philosophy has stressed theory for the analysis of moral argument and concepts. In the last decade, interest in the ethical issues of health care has stimulated attention to cases and particular instances. This has revealed the gap between ethical theory and practice. This article reviews the history and method of casuistry which for many centuries provided an approach to practical ethics. Its strengths and weaknesses are noted and its potential for contemporary use explored.