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Authority in Ethics
Consultation
George J. Agich
A
uthority is an uneasy, political notion. Heard with
modern ears, it calls forth images of oppression
and power. In institutional settings, authority is
everywhere present, and its use poses problems for the ex-
ercise both of individual autonomy and of responsibility.
In medical ethics, the exercise of authority (along with
power) has been located on the side of the physician or the
health care institution, and it has usually been opposed by
appeal to patient autonomy and rights. So, it is not surpris-
ing, though still ironic, that ethics consultation, which de-
velops from this patient rights-dominated ethic, should it-
self bring forth questions of authority. Nonetheless, it does.
Power and authority in ethics consultation
Insofar as authority has been discussed in ethics consulta-
tions,
it has been understandably approached from the broad
perspective of legitimation and power, which are common
themes in social and political treatments of authority. These
treatments have dominated twentieth-century discussions
of authority, which primarily view authority as legitimate
power.^ The predominantly political focus of this discus-
sion helps to explain why authority is such an unsettling
subject in the context of ethics consultation, and why the
main issues being discussed in connection with ethics con-
sultation are so political, such as: Who should do ethics
consultations—ethics committees, teams, or individual
consultants?;^ What kind of professional qualifications
should the ethics consultant possess?;^ Should consultants
be credentialed?;'' and. How does ethics consultation alter
the distribution of power among families, physicians, pa-
tients,
and nurses?^ Underlying these questions are themes
Journal of Law, Medicine & Ethics, 23 (1995): 273-83.
© 1995 by the American Society of Law, Medicine & Ethics.
common to twentieth-century treatments of authority—
the distribution, use, and limits of power, as well as the
justification or legitimation of authority. No wonder, then,
that seemingly procedural questions, such as who has ac-
cess to hospital ethics committees (HECs), quickly become
vexatious.
The political orientation to authority in ethics consul-
tation not only is a part of the history of twentieth-century
views of the legitimation of political authority, but also
reflects more localized reactions to the emerging evidence
about ethics consultation and its place in changing institu-
tional practices involving HECs. Spurred by organizations
such as the American Hospital Association, the Joint Com-
mission for the Accreditation of Healthcare Organizations
(JCAHO), professional societies, and developments in the
law, HECs have increasingly become common features in
community hospitals as well as academic medical centers.*
It is, of course, natural that such a new institutional entity
should engender worries about the use and potential abuse
of power, and that ethics consultation should serve as the
lightening rod for these concerns.
Proponents of ethics consultations tout them as mecha-
nisms for extending and enhancing patient's rights by ful-
filling the patient ombudsman, negotiator, or mediator
functions in conflicts between physicians and patients.^
Critics worry about the potential corrosive effect of HECs
on both physician-patient relationships* and patient rights.'
Reports that HECs are mainly composed of physicians
rather than other health care providers or lay representa-
tives,
that access to HECs is sometimes restricted to physi-
cians,
that consent of patients or their surrogates is not
always sought for an ethics consultation, that cases are
presented and discussed away from patients (or their rep-
resentatives) and sometimes without their knowledge or
involvement have certainly tempered some of the enthusi-
273
Volume 23:3, Eall 1995
asm associated with the development of HECs and ethics
consultation.'" Nevertheless, the growing clinical ethics con-
sultation movement attests to a widespread, if untested,
belief in the salutary effects of ethics consultation on the
physician-patient relationship and patient rights.
Given such contrary readings, it is hardly surprising
that authority is such a controversial matter for ethics con-
sultation. The most troubling aspects of power and au-
thority in consultations, however, have received virtu-
ally no fine-grained treatment. This omission
is
understand-
able given the mainly political orientation of most discus-
sions of HECs and because of the remarkable dearth of
published descriptions of the ways that authority actually
operates in ethics consultation—due, no doubt, to the rela-
tive novelty of this practice. As a result, when the subject
of authority is broached, it typically focuses on concerns
that may be tangential to the actual practice of ethics con-
sultation, which arguably is the proper focus of any ad-
equate treatment of authority in ethics consultation. In the
next section, I connect the issue of authority in ethics con-
sultation with the typical concern about legitimation, and
point out the conceptual burdens associated with common
approaches to the question. From this discussion, I develop
an alternative view of authority that is more adequate to
the actual practice of ethics consultation, but it raises a
rather different and difficult set of questions for bioethics.
In authority
A natural starting point for a discussion of authority in
ethics consultation is the familiar concept of official or
bureaucratic authority, which has been termed in author-
ity.^^ Someone is in authority by virtue of occupying or
holding a specific office or position that gives that person
authority over others. For example, a policeman or the
President of the United States ism authority. In authority is
almost always an executive authority, meaning that one
has the right or power to act for or on someone else. This
concept is a natural starting point because the main con-
cern about authority in the HEC and ethics consultation
literature is with such political questions as the account-
ability and power of HECs, consultative teams, and indi-
vidual consultants. Given this focus, it is important to as-
sess critically the adequacy of this basic understanding of
authority for capturing the full range of authority in ethics
consultation. If it turns out that authority in ethics consul-
tation is a more complex or different subject than has here-
tofore been considered, a fairly radical reexamination of
the debates over ethics consultation might be in order.
The concept of in authority involves the authority as-
sociated with specific offices or positions; it is expressed in
formal rules or procedures that invest the office with its
characteristic power. Max Weber's legal-rational model of
authority is one of the best-known formulations. Treatments
of this sense of authority stress its inherent connection with
power and with formal rules or procedures. In this case,
power is displayed by the imperative character of its state-
ments or pronouncements.
This dominant view seems to bring two assumptions
to the question of ethics consultation. First, authority is
fundamentally a matter of power relationships in medi-
cine;
and, second, authority is properly understood in com-
mand-obedience terms. Of these assumptions, the first has
been given the most attention, because the ethics consulta-
tion literature has been directly concerned with the most
obvious manifestations of consultation within existing in-
stitutional structures. The second is simply a taken-for-
granted by-product of the dominant legal-political under-
standing of authority as in authority.
The effects of these assumptions are far-reaching. For
example, treatment of the question whether ethics con-
sultants (or HECs) should make binding or nonbinding
recommendations has been a recurrent theme in the litera-
ture,
though one on which a consensus has seemed to
emerge, namely, one that has the effect of circumscribing
the power of the HEC or consultant. The derivative alter-
natives for answering this question, namely, either advice
is compulsory (and hence a kind of command) or optional
and thus nonauthoritative, however, have not been ques-
tioned, because most of the literature on these points fo-
cuses on HECs as official organizational components of
hospitals rather than on the actual process of ethics con-
sultation. The HEC is more stable subject for analysis and
discussion than ethics consultation, because the former is
an organizational entity while the latter a practice or social
process.
Given this focus on power in institutional settings,
HECs, consultative teams, and individual consultants are
said to make recommendations, not decisions, and their
activities are increasingly defined in the more neutral terms
oi facilitation or
mediation.'^^
Thus a kind of political cor-
rectness seems to be associated with ethics consultation
that eschews admitting that it involves a wide, and perhaps
diffuse, range of authority. The literature focuses on politi-
cal in authority, which leads to discussion about the effects
of ethics consultation on patient/family and health care
professional rights. Even those who accord the HEC or
consultant a more dynamic or ombudsman function do so
on the basis of a primarily political in authority concep-
tion. Such an understanding, however, diverts attention
from the myriad of other ways that authority and the au-
thoritative actually emerge during ethics consultations, and
poses the danger of obscuring the ethical aspects of this
practice because important questions about the real func-
tion of authority in ethics consultation is disregarded. One
of these questions is closely linked to the command-obedi-
ence feature of the in authority concept, which raises the
important ethical problem of surrender of judgment.
274
The Journal
of Law,
Medicine
&
Ethics
The deference or surrender of judgment problem
One feature of authority which is especially relevant to
ethics consultation is that when one agrees with or follows
the recommendation of an authority figure, one inevitably
defers to another and so surrenders one's private judgment.
This "surrender of judgment" is a special problem in bu-
reaucratic health care institutions, because they are sus-
ceptible to the confusion of different, and often incompat-
ible,
kinds of responsibility." If moral decisions are in some
significant, rather than a portmanteau, sense one's own,.
then surrender of judgment consists in not examining the
matter at hand and coming to an independent judgment
about
it.
This problem
is
made difficult because many think-
ers define authority in contradistinction to both coercion
by force and persuasion through rational argument. As
Hannah Arendt has put it.
Since authority always demands obedience, it
is
com-
monly mistaken for some form of power or violence.
Yet, authority precludes the use of external means of
coercion; where force is used, authority itself has
failed. Authority, on the other hand, is incompatible
with persuasion, which presupposes equality and
work through a process of argumentation. Where
arguments are used, authority is left in abeyance."
On this view, then, a hierarchical order is assumed
that does not readily rely on either coercion or rational
persuasion for its effect. As a result, one who defers to an
authority figure seems to give up his own judgment and so
appears to act without a sense of personal responsibility.
The authority figure, correlatively, does not provide ratio-
nal argumentation and persuasion.
Essential to this view is that the person(s) in authority
is entitled to obedience, and so the advice or recommenda-
tion can be neither a matter of persuasion by rational argu-
ment nor a matter of coercion. Of course, some element of
voluntary acceptance by the person following the authori-
tative advice must exist, but it is not dependent on seeing
things for
oneself,
in person, so to speak. Rather, matters
are taken on the word of another, namely, the ethics con-
sultant.'' This view of authority is much more subtle and
morally troubling than one that simply stresses power as
the core concept. Authority is thus not an isolated phe-
nomenon of control or the exercise of coercive power, but
part of a language game or social practice in which accep-
tance is an essential element.'*
The theoretical problem is to identify and justify the
basis on which this acceptance rests and to explain how
such an acceptance can coexist with a person's surrender
of judgment. Central to this problem, then, is that the indi-
vidual who accepts authority is said to surrender his judg-
ment precisely because he does not insist that reasons be
given that he understands or that satisfy him as a condition
of assent. Instead, he simply accepts and follows the advice
given. As a result, the advice seems practically tantamount
to,
though not logically identical with, a command. So, to
say that an ethics consultant has or exercises authority
implies that he need not offer reasons to support what is
recommended and that, correlatively, advice is justifiably
taken without serious question or examination.
On the side of the ethics consultant, this means that
the advice or recommendations given have a practical ef-
fect akin to power, namely, getting things done; the con-
sultant's recommendations motivate action toward realiz-
ing the central values in the case. To the casual observer,
this effect is frequently confused with power. On the side
of the receiver of the advice, be he the physician, patient/
surrogate, or other health provider, difficult matters are
presumably made clear; and even if not, he is assured that
the course of action is right and justified. Such assurance
might occur even when the ethics consultant's recommen-
dation does not accord with the physician's, patient's, or
family's primary preferences, beliefs, or values, because it
seems to them that a higher voice has spoken. Thus, even
when reservations or questions persist about the recom-
mendation, a sense of obligation can accompany the ethics
consultant's recommendations. This sense of obligation has
many sources that deserve a separate treatment, because
each raises unique ethical questions; a few examples will
suffice for our purposes.
If the consultant's involvement confers a sense of sta-
tus on the patient or family, which can occur whenever
poor communication occurs between patients/families and
providers, the patient or family are grateful for receiving a
fair hearing; such gratitude can override clear thinking for
themselves. Similarly, when the physician is enmeshed, es-
pecially emotionally, in a complex case, involvement by
the ethics consultant who confirms the difficult nature of
the case might lead to effacement of the physician's own
independent critical judgment.'^ Following advice under
such circumstances raises the moral dilemma of abrogat-
ing personal responsibility. Need for such advice is fre-
quently expressed during an ethics consultation when the
patient/family or physician asks "What do we do now?"
Even when this is a request to clarify the next step in deci-
sion making, the consultant's identification of that step in
a clear and definitive way can commit both patients/fami-
lies and physicians to a goal that has not been fully exam-
ined, much less consented to. How the ethics consultant
responds to such questions is critically important in deter-
mining if the danger of surrender of judgment is a by-prod-
uct or a cultivated outcome of consultation.
Rejection of authority
The possibility of overriding another's action and judg-
ment has been such a serious concern in ethics that many
275
Volume 23:3, Fall 1995
thinkers simply reject authority out of hand.'As Charles
Hendel notes:
to allow of any possible role for authority in the moral
life of man is to take away its properly ethical char-
acter, no matter whether the authority be divine or
regal, because morality consists in actions of an
individual's own authentic choice, choice in the light
of his own knowledge, appraisal, and conviction,
without any external inducements or sanctions."
Clearly, this rejection of authority in moral choice hinges
on the possibility of giving a definitive account of authen-
tic choice that can meet the remarkably rigorous demand
that all of one's choices must be uniquely based on per-
sonal knowledge, appraisal, and conviction. Such a require-
ment is open to at least two interpretations. A strong read-
ing would require that authentic choice always depend on
a first-hand, in person experience, or personal knowledge.
Many critics of authority have just such a requirement in
mind, which is reasonable in idealized contexts of choice;
but, in actual situations of choice, relying on others' advice
does not always nullify freedom but can actually promote
it. The critical point is whether the specific choice involves
beliefs, values, or outcomes with which the individual genu-
inely identifies as his own.'' Thus, a second, weaker read-
ing is possible, namely, one that would admit second-hand
knowledge and experience on the recognition that without
such an extension, the range of knowledge and experience
that could ever properly be the foundation for choice would
be so severely restricted as to preclude the possibility of
moral choice in everyday life. Such an outcome would be a
reductio of the view that rejects authority in moral deci-
sion making. This reductio can be avoided if we admit that
choice can be authentically and ethically one's own, even
when matters at hand are not available for first-hand, in
person experience. In this instance, one would simply have
to insist that authentic choice express the identity of the
person and that one knowingly accept that the choice is
made on the word of another. This weaker reading would
certainly still be an objection to some, but not all, kinds of
authority. The important question, of course, is "What kind
of authority is compatible with this reading?"
Many thinkers who follow the political view of au-
thority as the legitimate use of power implicitly adopt the
strong interpretation, and so are primarily concerned that
authoritative advice will override or efface personal action
and choice. This view of authority seems natural only if
we accept a certain kind of command-obedience under-
standing of authoritative advice. Such a way of looking at
things does seem to flow naturally from the political un-
derstanding of authority, which, as we stated, is commonly
expressed in procedural or formal terms that are used to
legitimate authority So important is this feature of the
political understanding of authority that it warrants a closer
examination as it applies to ethics consultation.
Given how authority is commonly discussed in ethics
consultation, the source of the authoritative is often thought
to be situated primarily, if not exclusively, in the institu-
tional position or office of the ethics consultant, consulta-
tive team, or HEC (and the formal rules and procedures
that legitimate it) rather than in the person of the consult-
ant or subject of belief
itself.^"
Consequently, whether the
advice given is based on personal or first-hand awareness
or knowledge
is
a question that seldom
arises.
Instead, think-
ers simply worry about the structural aspects of ethics con-
sultation and the formal rules or procedures that might
validate an authoritative voice. The critical question, how-
ever, is whether the command-obedience model and the in
authority concept that underlies it is the most compelling
way to explicate ethics consultation. Simply put, if another,
more compelling way of understanding authority in ethics
consultation can be found, then the problem of surrender
of judgment might be ameliorated if not completely solved.
Two points must be considered to seek a viable alter-
native. First, we need a way to interpret the status of the etliics
consultant that neither ties it to the command-obedience
model nor reduces it to in authority institutional proce-
dures and rules; and, second, we need an account of authority
that gives primacy to the subject matter of authoritative
advice rather than to the official position of the advisor.
Social role authority
Discussions of authority have been dominated by concerns
of legitimating power and control in public, political con-
texts.
Furthermore, at least since the work of Weber, legiti-
mation has been primarily understood as a matter of for-
mal rules or procedures or other bureaucratic mechanisms.^'
This approach downplays other aspects of authority that
are common in everyday life and that might prove impor-
tant in understanding the peculiar kind of authority associ-
ated with ethics consultation. Many examples oisocial role
authorities in everyday life show that someone can have an
ethically justified authoritative influence over another, but
that that influence does not involve the use of power that
can be legitimately employed by the formal institutional
rules characteristic of in authority.
When I take something on the word of a teacher, phy-
sician, lawyer, or scientist, I do so not as a command, but
as a way to extend my knowledge or to enhance my ac-
tions in the world. In this sense, a doctor recommends treat-
ments, but does not, strictly speaking, order patients. Doc-
tors certainly write orders, but the command sense of
"doctor's orders" is properly confined to the institutional
hospital setting where the order is needed before nurses or
other allied health professionals can perform certain func-
tions in patient care. Patients, however, are not subject to
276
The Journal of Law, Medicine & Ethics
their doctors' orders even though a kind of social pretense
to that effect may exist.
Similarly, a teacher does not order students, except
when he behaves as a disciplinarian and then does so as a
school official in charge of conduct. Teaching as such in-
volves complex processes of communication that bind stu-
dent and teacher into an authority relationship where teach-
ing and learning occur. A scientist interacting with peers
might rightly take their word on a particular scientific point
over that of a layman. Such trust is based not simply on
other scientists' power or position, though that might to
some degree contribute to the initial acceptance, but also
oh their common commitment to methods of work and
modes of demonstration. This broad commitment to meth-
odology is what grounds the report of findings and their
acceptance as scientific truths. These examples suggest that
social role authority is a pervasive feature that cannot be
reduced to in authority without loss of meaning.
Whereas formal in authority is more closely tied to the
office or position and to the institutional or bureaucratic
rules and procedures that support it, social role authority
does not need such a formal or procedural foundation.
Instead, it is founded on the acceptance of a circumscribed
role within a social practice. In the social role case, it mat-
ters what expectations are associated with the role and who
occupies that role; it matters what skills and qualifications
the individual brings to the role; and it matters how the
role expectations are enacted. In other words, the actions
or judgments made in social role authority are subject to
the responsibility requirement. In the formal or legal-ra-
tional case, what first matters are the formal rules and pro-
cedures that define the office. Simply holding the office in
question is a prima facie basis for saying that the person is
in authority, because authority derives from the office, for-
mal rules, and procedures more than from the individual
who occupies the office or position. In the case of the more
informal concept oisocial
role
authority, authority depends
more subtly on occurrent social acknowledgment or ac-
ceptance of the agent in question and on the personal quali-
ties and skills that he brings to the functions of the role.
Thus it matters a great deal who occupies the social role, a
point that is well recognized in the debate over which pro-
fessional is best qualified to do ethics consultations.^^ Un-
fortunately, this debate overlooks the contribution of per-
sonal qualifications or skills to which professional training
may only be marginally relevant. Although institutional
arrangements, such as position descriptions, staff appoint-
ments, and ethics consultation policies, can give credibility
and institutional recognition to the role of consultant, the
operative authority of the ethics consultant cannot be
grounded in such features alone.
An obvious objection to this point is common in the
wider literature on authority, namely, that it seems as if
authority is ultimately based only on psychological char-
acteristics. People might earnestly believe that an individual
is an authority, yet be wrong in their
belief.
Such an objec-
tion, it needs to be pointed out, could be made for virtually
any kind of authority, not just social role authority. People
might, and frequently do, accept the word of in authority
authorities even when the occupant of the office or posi-
tion is inept, in ignorance, or gained the office by illicit
means. Although psychological reasons, such as the strength
of one's convictions in an authority figure, cannot provide
a sufficient basis for authority, recognition of someone as
an authority does seem a necessary component for author-
ity to exist, though it is certainly not a sufficient condition.
Thus,
whether provided by a ready recognition of the in-
signias of power that are closely bound to formal methods
of legitimation, such as the policeman's badge or the judge's
robes,^^
or by a more diffuse identification that someone
occupies a specific social role, acceptance is necessary. The
concept of social role authority is simply a way to capture
this necessary feature without confusing authority with
power legitimated by formal bureaucratic or legal rules.
Of course, it remains to be seen how authoritative advice
rather than the advisor's official position is primary in eth-
ics consultation. To establish this point, two further con-
cepts need to be explored, namely, epistemic and compe-
tence authority. ^''
Epistemic and competence authority
of the ethics consultant
Both epistemic and competence authority are nonexecutive
in that they lack the right or power to act for or on some-
one
else.
Epistemic authority is authority in a field of knowl-
edge,
and arises, as a social institution, from the dual rec-
ognition both that we and others have knowledge and that
others have knowledge that we do not have. Accepting
something on the word of another is an important means
of expanding one's own knowledge. To be able to say that
the ethics consultant has epistemic authority, three related
criteria or conditions must be met.-" First, the ethics con-
sultant must have relevant knowledge to be justifiably ac-
cepted as a consultant. Debate over who can do consulta-
tions is, in part, a debate over the possession of the knowl-
edge requisite for doing ethics consultation. Participants in
this debate are quite clear that knowledge of some sort is
necessary; but they disagree about the kind of knowledge,
some claiming philosophical or ethical knowledge, others
claiming medical knowledge.^* Second, individuals inter-
acting with the ethics consultant need good evidence for
believing that the ethics consultant has the relevant knowl-
edge.
The institutional identification of someone as an eth-
ics consultant can provide prima facie evidence, but it is a
corrigible piece of evidence that is testable during a con-
sultation or through other means. In order for the ethics
consultant to be legitimately accepted as an epistemic au-
277
Volume 23:3, Fall 1995
thority, his statements must be part of his knowledge or
close enough to it such that his specialized knowledge is
pertinent to others believing his specific statements or rec-
ommendations. This means not only that the ethics con-
sultant must maintain the good will of others, but also that
such good will needs to be anchored in lcnowledge of clini-
cal ethics. Third, the ethics consultant's knowledge must
be relevant to the issue at hand. The recommendations
made and the communicative approach taken must be based
on knowledge that fits the particular circumstances of the
case.
Without this linkage, the consultant's statements
would lack epistemic warrant and so would be epistemically
unjustified. In that situation, the ethics consultant could,
of course, rely on other knowledge or experience, but such
reliance would not warrant his epistemic authority
^WiJ
eth-
ics consultant.
In addition to epistemic authority, ethics consultation
involves a kind of competence authority'" that helps ex-
plain how the trust in the consultant is practically estab-
lished. Competence is the ability to perform certain tasks.
A person who is competent has the necessary knowledge
and skills to accomplish them. He does not necessarily make
any statements or utterances; and, if he does, his utter-
ances are not necessarily propositions to be believed. They
might instead be instructions to be followed. Competence
authority involves the ability to perform certain tasks or to
exhibit certain characteristic skills. To exercise one's judg-
ment, to use one's interpretive abilities, or to communi-
cate clearly and effectively are all common examples of
the skills that ethics consultants should be able to perform.
Such skills practically contribute to the ethics consultant's
authority not because the consultant is an (epistemic) au-
thority on any of these particular skills, but because his
ability to use the skills to resolve problematic ethical cases
confers authority on him that others in the case do not
have.
In other words, the ethics consultant need not be an
authority on interviewing, on patient-physician communi-
cation, or in dealing with emotionally charged situations
manifesting psychological defense mechanisms or grief re-
actions to have and use effectively these skills during ethics
consultation. Nevertheless, this kind of authority is a ready
source of influence that can promote the acceptance of
advice without one believing either the recommendation
or even knowing the reasoning behind the recommenda-
tion. That is why the deference of judgment problem is so
central for ethics consultation and why it
is
so inadequately
captured by the in authority model.
An exacting list of the competencies or skills required
of a good ethics consultant is beyond the scope of this
paper. To some extent, each situation or case will require
different competencies, so it would be futile to try to enu-
merate a universal set of specific requirements. Hence, the
overriding competence for ethics consultants is their abil-
ity to judge not only what is at issue in a particular case.
but also how they should comport themselves in handling
the case. Were, for example, a physician to follow the eth-
ics consultant's advice based on the consultant's commu-
nicative ability to identify areas of agreement amid appar-
ent discord, and effectively to diffuse emotionally intense
situations, the physician and/or family would be relying
on the consultant as a competence authority. The physi-
cian and/or family does not necessarily need to know how
it is that the consultant operates, but only that he does
appear to achieve an ethically satisfactory resolution of the
case.
Viewing the ethics consultant as a competence au-
thority, then, implies that the physician and/or family might
follow the consultant's advice without questioning his rea-
soning or knowledge. Even when this occurs, it is impor-
tant to point out that the physician and/or family do not
follow the ethics consultant's advice as one obeys a com-
mand, but rather as one who accepts his competence to
give authoritative advice.'^*
What are the main features of this particular combina-
tion of epistemic and competence authority that sustains
authoritative advice? First, the ethics consultant's epistemic
authority lacks a formal power or right. In other words, it
does not in itself confer any liberty to bestow his expertise
in just any case. The ethics consultant is, after all, only a
consultant, which means he must be called to action by
others who authorize his involvement and who may set
limits on it.^' Second, epistemic authority generally arises
from the dual recognition that, as I explained earlier, we
and others have knowledge, and that others have knowl-
edge we lack. Thus, accepting something on the basis of
the word of another is an important and rational way to
expand one's knowledge.^" To use the knowledge of an-
other, however, we must recognize the other as knowl-
edgeable, as an authority on the matter in question. Clearly,
having ethics consultation recognized as a social role greatly
facilitates what could otherwise be a considerable problem
of identifying who the relevant authority is on issues in
clinical ethics. Third, justification of the epistemic and com-
petence authority of the ethics consultant will necessarily
focus on the contribution of discretion or judgment to es-
tablish authoritative advice as something worthy of accep-
tance.^' Besides epistemic authority is authority that de-
rives from various competencies that the effective ethics
consultant must possess, such as the ability to think and
communicate clearly, the ability to interact with both health
professionals and patients and families with empathy and
understanding, and the ability to identify sources of dis-
agreement and points of shared belief and value. All of
these functions are in one way or another features of dis-
cretion or judgment.
One place to look for a key to understanding the proper
function of discretion or judgment is the commonplace
practices that occur in any discipline. When in doubt about
some matters, members of a particular field regularly ac-
278
The Journal of Law, Medicine & Ethics
cept each other's authority when they will not accept it
from individuals outside the field. On what is this accep-
tance based? To be sure, professional identities, loyalties,
and familiarity play their part, but crucial to such accep-
tance, indeed, the test of such acceptance, is that the au-
thority figure is at least potentially able to provide a
reasoned elaboration or justification for the position taken
or the action chosen. Thus, underlying the reliance on au-
thoritative recommendations from a peer within a certain
field is a tacit expectation that communication about and
explanation of what is authoritatively advanced is possible.
This possibility is essential for supporting the recommen-
dation being advanced as a matter that is worthy of
belief,
to the degree and extent that it should be believed. This
commonplace phenomenon suggests that the basis for ac-
cepting epistemic authority in general is tied to the possi-
bility of communication in which giving reasons is central.
Unfortunately, a good deal of institutional authority is
maintained without the individuals involved being able to
elaborate or offer reasons to explain or justify their ac-
tions.
At these points, authority and power intermingle in
ways that confuse their true relationship. It is important to
note,
however, that the fundamental potential for reasoned
elaboration
is
the differentiating characteristic that has been
cited whenever thinkers have contrasted authority with
power.^^ Thus, the ethics consultant should be regarded as
an authority involving, at least in part, a specialized apti-
tude that forms the basis of his authoritative advice. Al-
though access to a specialized knowledge is part of the
exercise of the consultant's judgment, knowledge does not
support the judgment as a formal axiomatic system might
support conclusions logically derived therefrom. Rather,
the specialized knowledge itself is a practical knowledge
that involves a complex mix of principles, propositions,
and values that serve as regulative ideas rather than as logi-
cal rules. As such, the practical exercise of judgment in
actual contexts defines the nature of this authority.
Being an authority
This analysis of the peculiar epistemic and competence
authority associated with ethics consultation, when coupled
with a social role understanding of ethics consultation de-
veloped earlier, suggests a solution to the problems associ-
ated with the in authority model. This alternative view of
authority avoids the command-obedience relationship, and
so also avoids many of the problems associated with the
surrender of judgment or deference to authority that the
command-obedience model raises. Although the term au-
thority is often confused with power or is taken as its syn-
onym, it does not have to be understood in command-
obedience terms. A clue to a different understanding of
authority relationships is in the etymology of authority.
The term authority derives from the Roman word
auctoritas, which carries its sense from the verb from which
it is derived: augere, which means to augment, enrich, in-
crease, or to tell about." Auctoritas thus supplements a
mere act of the will by adding reasons to it. Such augmen-
tation and confirmation were historically the result of de-
liberation by the "old ones." The patrum auctoritas is, for
that reason, more than advice, yet less than a command. It
is advice that cannot be properly disregarded. This aug-
mentation or confirmation had in ancient Rome, as has
authority elsewhere, religious overtones. Although it was
not intended to set limits to the free decision of the com-
munity, it was intended to prevent violations of what was
sacred in the established order, because such violations were
a crime (nefas) against the divine order, which might jeop-
ardize divine blessing. Thus, the preservation of good aus-
pices probably was the basic idea underlying pairwrn auctor-
itas,
the authority of the fathers—or, in other words, the Ro-
man Senate.'"* Thus, the best and clearest view of authority
is that which comes between us and an object, and, in rela-
tion to us, adds something to the object that is intrinsic to
it. This addition is made apart from and without any ex-
amination of the matter by ourselves. What the authority
figure adds provides a motive of greater or lesser weight for
our action or belief with respect to the matter in question.
Thus,
authority in ethics consultation involves a dif-
ferentiated mode of access to the truth. For the authority
figure it is a direct, personal access—as when an individual
witnesses some unique historical event—whereas, for those
who consult him, it is a mediated or vicarious access. An
authority is thus an intermediary between a thing he is an
authority on and the persons who accept him as an author-
ity on that thing and who vicariously accept his authorita-
tive word. He has access to it, and they have access to his
augmentation of or testimony about that thing. At the same
time,
the ethics consultant has to accept the word of the
family, physicians, or other health care providers. Like them,
the consultant need not adhere to the statements of others,
but he does not require complete, first-hand knowledge of
all matters that are clinically relevant. The ethics consult-
ant only needs authority in clinical ethics, not authority in
clinical medicine. To expect that ethics consultants should
possess authority in clinical medicine is an example of the
need for power and control that conflicts with the core
meaning of the authority relationship essential to ethics
consultation.^' The central point, then, is that to be an au-
thority is to be interposed between something on which
one speaks and the persons who accept that speech as cred-
ible.
Thus, people believe the consultant to be an authority
precisely because he is an intermediary between the clini-
cal dilemma and the subject matter of clinical ethics. The
person who depends on the intermediary is not subservi-
ent, and does not obey the authority figure on this model;
rather, he uses or appropriates the authoritative advice,
without recourse to the power associated with in author-
279
Volume 23:3, Fall 1995
ity-type relationships. For this reason, not everyone who
has authority, in the sense of m authority, is an authority on
something. Instead, a person may be in authority because
he occupies a certain office or social role, but, again, this
does not imply that he is capable of giving authoritative
advice that is worthy of being followed.
These etymological considerations also suggest that
reasoning has a central role in situations wherein the term
authority is employed. When good reasons exist for doing
or believing something, such action or thought is justified.
In fact, because power and authority have not always been
carefully distinguished, it is easy to confuse authority with
power rightly or justly applied, a confusion that is likely to
persist in ethics consultation. Nonetheless, in a basic sense,
it is true that whoever truly possesses authority could pro-
duce reasons, if challenged or questioned.^* The ability to
articulate reasons provides the clue necessary for answer-
ing the problem posed by the surrender of judgment, namely.
Why should anyone follow the advice of an authority? The
answer is simply that it is frequently the most reasonable
or rational thing to do in many circumstances. To rely on
the epistemic and competence authority of an ethics con-
sultant can be the most prudent option to pursue in many
clinical situations that involve conflicts, confusions, or value
or ethical dilemmas.
The operative sense of authority can be further eluci-
dated by comparing it with the familiar example of paren-
tal authority. Parental authority may start out as an abso-
lute power over the child; but, as the child develops, this
absolute power does not continue. A good parent will in-
creasingly explain what needs to be done and believed,
thus replacing subjection with understanding. He will an-
swer questions, and will try to develop in the child an un-
derstanding of and a participation in the reasons that mo-
tivate the parent's asking for compliance. In this process, a
new kind of relationship develops, a relationship that is
different from one based on power. The authority involved
here rests on the fact that the child increasingly gains in-
sight into parental orders and regulations, into parental
opinions and beliefs. The child thus learns to relate to their
basic values and thereby comes to share at least some of
his parents' values. It is important to recognize that such
development requires discourse in which the child is a full
participant. Without this participation, it would not be a
true authority relationship, but would revert to a power
relationship. In parent-child relationships, it is important
to recognize that power continues to operate, and often
creates dangerous tensions and frustrations. As with ethics
consultation, tension between power and authority is al-
ways a latent possibility.
To be sure, ethics consultation does involve a degree
of power. The fact that, in many institutions, ethics con-
sultations can be called by a patient, patient's surrogates,
or other health professionals against the physician places
the consultant in what is naturally perceived by physicians
as a nonconsultative relationship, because other consulta-
tive relationships are usually initiatedhy the attending phy-
sician. Hence, physicians are apt to view and understand-
ably resent the ethics consultant's involvement as based on
a kind of in authority, one that involves commands and
obedience and is supported by formal institutional power.
While this interpretation does not get to the heart of the
ethics consultation process, it is likely to persist and must
be accommodated during consultative practice. This is es-
pecially true when the patient or patient's surrogate re-
quests the consultation. The ethics consultant does not have
to be a champion of patient rights to recognize that his role
in the case
is
authorized specifically by the same individual
who authorizes the physician to act. If conflict between the
physician and the patient (or surrogate) underlies the con-
sultation request, it would be understandable were the eth-
ics consultant to take sides authoritatively. The question,
of course, is just what does taking sides involve, and is
patient/surrogate authorization enough to confer a special
status akin to in authority power. Furthermore, if this au-
thorization does confer special power on the consultant,
how does the infusion of what appears to be in authority
authority affect the actual process of consultation.'^^
No wonder, then, that some physicians, nurses, or fam-
ily members resent, or do not cooperate with, the ethics
consultant. In an egregious case of a physician overriding
patient rights, it is tempting for the ethics consultant to act
as if he does have in authority power. To do so, however,
would be a mistake, because, if the problem is fundamen-
tally one of power or control, then that is to be corrected
by reestablishing the patient's own authority to speak for
himself,
rather than by sanctioning the ethics consultant's
independent power. In that regard, the consultant need not
oppose the physician, but rather reason with him regard-
ing the legal, institutional, and ethical basis for insisting on
the patient's primacy in decision making. A particular phy-
sician may not want to hear that in a particular case, but
the power at stake is beyond both the ethics consultant and
the physician.^' To reveal this or to show this to the physi-
cian requires considerable tact and discretion. Consider-
able patience and skill are required to clear the air before
the ethics consultant can speak with an authoritative voice,
which means being able to articulate reasons that augment
the physician's current understanding and view of the case.
This skill is the kind of competence authority that, as I
earlier pointed out, is an essential component of the ethics
consultant's authority in clinical ethics.
The capacity to communicate clearly and authorita-
tively, that
is,
to expand on what is being discussed in terms
that are meaningful to all interested parties, is vitally re-
lated to the phenomenon of power. In fact, possessing such
a capacity to communicate always confers some degree
power on the individual who possesses it. Ironically, an
280
The Journal of Law, Medicine & Ethics
individual who is designated as an ethics consultant by a
hospital or HEC and who is an effective communicator
might be able to conduct consultations on the basis of such
a competence without its corollary—epistemic authority—
being present. This is a persistent problem that HECs and
ethics consultation services need to address. Unless com-
munication during ethics consultation at least potentially
involves reasoned elaboration, the relationship will likely
degenerate into one of power, because genuine authority
in ethics consultation requires at least the possibility of
reason. That would be missing from the ill-prepared or ill-
qualified consultant who relies on background institutional
power. This means that the role of the consultant is legiti-
mated not by a job description, an institutional ethics con-
sultation poiicy, or JCAHO requirements, but by virtue of
the ethics consultant's grounding in the authoritative sub-
ject matter of clinical ethics.
The importance of discretion or iudgment
The necessary connection between the features of the eth-
ics consultant's authority and reason helps explain why
judgment or discretion is so central to ethics consultation.
Judgment or discretion is required in situations that meet
three conditions: first, a choice between several alterna-
tives can and must be made; second, the choice should not
be made arbitrarily, but in accordance with the require-
ments of the situation; and, third, the choice arises within
the framework of existing rules or institutional policies
and practices.^' In other words, discretion comes into play
whenever no specific rule or principle can unilaterally settle
the problem and whenever mere whim cannot be allowed.
Even when existing statutes, institutional policies, or ethi-
cal principles apply to a case, they sometimes conflict or
will be subject to conflicting interpretations; so it may be
necessary to interpret their relevance to the case. Such dis-
cretion essentially involves the exercise of judgment that
must be grounded in knowledge of the relevant principles,
paradigm cases, rules, and regulations on the one hand,
and in terms of an awareness of the basic value commit-
ments of the relevant parties involved, the details and nu-
ances of the particular clinical case, as well as the political,
psychological, and social circumstances actually structur-
ing the case, on the other. Underlying and justifying such
use of judgment is the possibility that a reasoned elabora-
tion involving both instrumental and valuational thinking
could be provided. The much discussed question whether
there
is
a method in bioethics and clinical ethics and, if so,
which is the best candidate, is an important, but secondary
phenomenon.
Conclusion
Some problems associated with authority in ethics consul-
tation, such as the surrender of judgment, are significant
because the authority associated with the ethics consultant
can potentially compromise the moral responsibility of
other involved individuals. These problems, however, are
tractable if we avoid the common, but inappropriate, com-
mand-obedience understanding of authority. In this regard,
it
is
important to stress the epistemic and competence char-
acter of the authority of ethics consultation and to distin-
guish it from formal in authority power. The model of au-
thority I defend views the ethics consultant's authority as
grounded not in formal rules or procedures, but in the au-
thoritative subject matter of clinical ethics and in the skill-
based competence of the consultant. Clearly, more needs
to be said about the subject matter of clinical ethics, the
function of competence authority in ethics consultation,
the crucial role of judgment or discretion in consultative
practice, the relationship between epistemic and compe-
tence authority, and the differences in the instantiation of
these requirements by individual, team, or committee con-
sultants. While I establish the requisite framework for deal-
ing with these important points, I do not definitively de-
cide them. Finally, some important questions can only be
answered with empirical research, such as the extent to
which advice or recommendations by ethics consultants is
(or can be) accompanied by reasoned argument, and the
relative significance of competence and epistemic author-
ity in actual ethics consultations.
Acknowledgments
Versions of this paper were presented at the Society for
Bioethics Consultation Annual Meeting, October 8,1994;
the Department of Philosophy, University of Minnesota,
January 6,1995; and the Central Illinois Philosophy Asso-
ciation, January 25,1995.1 am grateful to these audiences
for their comments and helpful suggestions.
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of
physical
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See Max
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Judith Wilson Ross, "Case Consultation: The
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Michael D. Swenson and Ronald
B.
Miller, "Ethics Case
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B.
Cohen, "Avoiding 'Cloud-
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Ronald E. Cranford, "The Neurologist as Ethics Con-
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Volume
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and David L. Schiedermayer, "Must the Ethics Consultant See
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Crunfeld, "Non-MD Ethics Consultants?," Jourrml of Clini-
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Jonsen, "Casuistry as Methodology in Clinical Ethics," Theo-
retical Medicine, 13 (1992): 295-307; John LaPuma and David
L. Schiedermayer, "The Clinical Ethicist at the Bedside," Theo-
retical Medicine, 12 (1992): 285-92; David Barnard, "Reflec-
tions of a Reluctant Clinical Ethicist: Ethics Consultation and
the Collapse of Critical Distance," Theoretical Medicine, 13
(1992):
15-22; David C. Thomasma, "Why Philosophers Should
Offer Ethics Consultations," Theoretical Medicine, 12 (1991):
129^0;
and Frank H. Marsh, "Why Physicians Should Not Do
Ethics Consultations," Theoretical Medicine, 13 (1992): 285-
92.
4.
John LaPuma and E. Rush Priest, "Medical Staff Privi-
leges for Ethics Consultants: An Institutional Model," Quality
Review Bulletin, 18 (1992): 17-20; and John C. Fletcher and
Diane E. Hof&nann, "Ethics Committees: Time to Experiment with
Standards," Annals of Internal Medicine, 120 (1994): 335-38.
5.
Mark Siegler, "Ethics Committees: Decisions by Bureau-
cracy," Hastings Center Report, 16, no. 3 (1986): 22-24; Janet
E. Fleetwood, Robert M. Arnold, and R.J. Barrin, "Getting An-
swers or Getting Questions? The Problematic Role of Institu-
tional Ethics Commktees," Journal of Medical Ethics, 15 (1989):
137-42;
Mark Siegler and Peter A. Singer, "Clinical Ethics Con-
sultation: Godsend or 'Godsquad}'," American Journal of Medi-
cine, 85 (1988): 759-60; Bernard Lo, "Behind Closed Doors:
Promises and Pitfalls of Ethics Committees," N. Engl. J. Med.,
317 (1987): 46-50; and David C. Blake, "The Hospital Ethics
Committee Health Care's Moral Conscience or White El-
ephant?," Hastings Center Report, 11, no. 1 (1992): 6-11.
6. The 1992 American Hospital Association Annual Ser-
vices Survey indicated that 51 percent of 5,916 respondent hos-
pitals had established an HEC. See Fletcher and Hoffman, supra
note 4, at 335.
7.
Mary Beth West and Joan Mclver Gibson, "Facilitating
Medical Ethics Case Review: What Ethics Committees Can Learn
from Mediation and Facilitation Techniques," Cambridge Quar-
terly of Healthcare Ethics, 1 (1992): 63-74; and Nancy Neveloff
Dubler and Leonard J. Marcus, Mediating Bioethics Disputes: A
Practical Guide (New York: United Hospital Fund of New York
1994).
8. See Siegler, supra note 5; and Siegler and Singer, supra
note 5.
9. Robert M. Veatch, "Advice and Consent," Hastings Cen-
ter Report, 19, no. 1 (1989): 20-22; Bruce Jennings, "The Lim-
its of Moral Objectivity," Hastings Center Report, 19, no. 1
(1989):
19-20; and Lo, supra note 5.
10.
Gregory L. Stidham, Kate T. Christensen, and Gerald F.
Burke, "The Role of the Patients/Family Members in the Hospi-
tal Ethics Committee's Review and Deliberations," HEC Fo-
rum,
1 (1990): 3-17; Gerald J. Mozdzierz, C. William Reiquam,
and Linda C. Smith, "Shaping Access to Hospital Ethics Com-
mittees: Some Critical Questions," HEC Forum, 1 (1989): 31-
39;
Carol J. Cohen and Joseph C. de' Oronzio, "The Question
of Access," HEC Forum, 1 (1989): 89-103; Roy B. Nash, Mar-
garet L. Leinvach, and Rhonda J. Fought, "The Hospital Ethics
Committee: Who Knows it Exists and How to Access it?," HEC
Forum,
1 (1989): 9-30; George J. Agich and Stewart J. Young-
ner, "For Experts Only? Access to Hospital Ethics Committees,"
Hastings Center Report, 21, no. 5 (1991): 17-25; and Joan
Mclver Gibson and Thomasine Kimbrough Kushner, "Will the
'Conscience of an Institution' Become Society's Servant?,"
Hastings Center Report, 16, no. 3 (1986): 9-11.
11.
Richard E. Flathman, The Practice of Political Author-
ity: Authority and the Authoritative (Chicago: University of Chi-
cago Press, 1980); and Richard B. Friedman, "On the Concept
of Authority in Political Philosophy," in Richard E. Flathman,
ed.. Concepts in Social and Political Philosophy (New York:
Macmillan, 1973): 121^6.
12.
See West and Gibson, supra note 7.
13.
George J. Agich, "The Concept of Responsibility in
Medicine," in George J. Agich, ed., Responsihility in Health
Care (Dordrecht: D. Reidel, 1982):
53-73.
14.
Hannah Arendt, "What was Authority?," in Carl J.
Friedrich, ed.. Authority: Nomos I (Cambridge: Harvard Uni-
versity Press, 1958): at 82. See also Hannah Arendt, "What is
Authority?," in Between Past and Future: Six Exercises in Politi-
cal Thought (Cleveland: World Publishing, 1963): at 93.
15.
I refer to the ethics consultant for convenience. My goal
is to characterize an operative, but largely neglected, sense of
authority in ethics consultation without regard to whether the
consultations are provided by individual consultants, consulta-
tive teams, or HECs. Evident differences do exist between these
three kinds of ethics consultations, and they will affect the ap-
plication of my points. Although I allude to some of these dif-
ferences in passing, my main concern is to outline a new way of
understanding authority in the process of ethics consultation.
The practical and ethical problems associated with this sense of
authority will be different for individual consultants, consulta-
tive teams, and HECs, but systematically differentiating them is
beyond the scope of this paper.
16.
For the best exposition of this view, see Flathman, supra
note 11.
17.
For a description of aspects of the witnessing function
of the clinical ethicist, see George J. Agich, "Clinical Ethics: A
Role Theoretic Look," Social Science and Medicine, 30 (1990):
389-99.
18.
Charles Hendel, "An Exploration of the Nature of Au-
thority," in Carl J. Friedrich, ed.. Authority: Nomos I (Cam-
bridge: Harvard University Press, 1958): at 7.
19.
For a discussion of the importance of identification in
actual autonomy, see George J. Agich, Autonomy in Long-Term
Care (New York: Oxford University Press, 1993): at 99-107.
20.
This belief is due primarily to the way that treatment of
ethics consultation has taken as its paradigm the HEC under-
stood in bureaucratic, institutional terms. Such a view stresses
the official or formal nature of HECs as committees that wield
power or influence within the institution.
21.
Bruce Lincoln, Authority: Construction and Corrosion
(Chicago: University of Chicago, 1994): at 1-2.
22.
See supra note 3.
23.
The apparent ease with which one can don an insignia
of power in some medical centers, simply by wearing a white
coat of a certain length and style, suggests that power is dif-
fusely distributed in these settings. No wonder, then, that bioet-
hicists carrying pagers or wearing white coats in the medical
center has been the source of innumerable quips. Whether these
practices are anything more than convenience or affectation is,
however, less important than their function of wittingly or un-
wittingly appropriating the mantle of power.
24.
Richard T. DeGeorge, The Nature and Limits ofAuthor-
282
The Journal
of
Law,
Medicine
&
Ethics
ity (Lawrence: University of Kansas Press, 1985).
25.
Id. at 37-40.
26.
See supra note 3.
27.
DeGeorge distinguishes epistemic authority from author-
ity based on competence, personal authenticity, or excellence.
Although they are closely related, they are dissimilar in impor-
tant ways. Of these kinds of authority, competence authority is
especially important for understanding ethics consultation.
28.
DeGeorge has used the following analogy to clarify this
point:
For his patient, a doctor is an epistemic authority when he
presents a diagnosis such as, "you have pneumonia," which
the patient believes; he is a competence authority when he
says,
"take two of these pills four times a day," and the
patient does so as a means of getting well. Despite its im-
perative form, the doctor's prescription is not a command
but is a hypothetical statement, telling the patient what he
recommends that the patient do if the patient wants to get
well.
DeGeorge, supra note 24, at 43.
29.
How the ethics consultant is authorized is a compli-
cated process that involves institutional policy or protocol on
ethics consultation on the one side, and trust or acceptance of
the ethics consultant by the individuals involved in the case, on
the other. Who is able to access the ethics consultant is a serious
second-generation problem for HECs and ethics consultants, as
Agich and Youngner {supra note 10) have pointed out.
30.
See DeGeorge, supra note 24, at 37.
31.
The importance of discretion or judgment in the exer-
cise of authority has been well recognized in philosophy. Plato
perhaps went further than any other thinker in believing that
such functions should be socially delegated to a specific indi-
vidual, namely, the philosopher-king. Many have rejected his
concept of the philosopher-king because his solution minimizes
the central practical problem, namely, how to identify individu-
als who are worthy of being entrusted with so much discretion.
32.
Carl J. Friedrich, "Authority, Reason, and Discretion,"
in Carl J. Friedrich, ed.,Authority: Nomos I (Cambridge: Harvard
University Press, 1958): at 46^7.
33.
This discussion of the etymology of authority is drawn
trom Friedrich, id. at 30.
34.
Later, the word auctoritas became a more general no-
tion and acquired a usage similar to the modern word author,
meaning a maker or originator. This later meaning seems to be
at the basis of modern understandings of power as something
that originates with one person and is imposed on another, in
contrast to the proper idea [of auctor] as one who adds. Stricdy
speaking, this must be an adding to what existed before, as a
witness adds his testimony about some event in question. From
this original usage, the meaning gradually acquired the sense of
creation, the creation of something new that can then be subject
to further elaboration. An author is thus someone who comes
between us and the facts or ideas, and adds to them a ground of
belief about them. Authority originally involved adding wisdom
to will, adding knowledge of shared values and traditions to
whatever the people wanted to do. Even when the stress is placed
on the fact that the author adds something, that something is
added to what already existed, as a witness does when giving
testimony. The author does not create something ex nihilo, but
affirms something de novo.
35.
See LaPuma and Schiedermayer, supra note 3; and Grun-
feld, supra note 3.
36.
Interestingly, when that question is raised about a spe-
cific in authority figure, the authority figure is usually well on
his way to losing authority. A number of answers might be given
to this question, none of which, however, gets at the distinctive
phenomenon that reasoning accomplishes by augmenting and
confirming the will. One might, for example, appeal to hierar-
chy and status, interest and advantage, personal attachments
and loyalties, or some specific law. None of these considerations
in itself really provides a satisfactory explanation of why an
authority figure's advice should be followed in a specific con-
text. Augmentation by reasons, however, does provide a basis
that can justifiably motivate action.
37.
Beyond that important practical question is one about
the implications of this kind of power for the consultant's
epistemic authority in clinical ethics. The issue is not whether
the ethics consultant's epistemic and competence authority can
be transformed into in authority or executive power by means
of personal authorization, but whether a different kind of au-
thority is infused that practically and politically complicates the
situation. It is inevitable that the dynamics of certain cases will
propel the ethics consultant into these uncharted waters. It is an
open question to what extent rhis does occur in the course of
ethics consultation.
38.
In such instances, the ethics consultant needs to remem-
ber that the individual physician practices within the institution
as a matter of privilege, not right. Appealing to the medical staff
hierarchy without emotion and guided by clear-headed reason-
ing is a sure way to bring a recalcitrant physician in line with
obvious patient rights. Also, administrative avenues of appeal
are usually backed up by legal remedies. A reminder of the law
can have a sobering effect on key members of both the medical
staff and the administration. Going to such lengths, however,
does not make the ethics consultant's authority executive or in
authority power. Quite to the contrary, it simply confirms the
epistemic authority of clinical ethics, which necessarily includes
a detailed knowledge of the relevant common legal require-
ments, rules, and remedies. Willingness to deploy this knowl-
edge in the service of a patient, however, can require courage
and fortitude by the ethics consultant, a fact that underscores
the importance of the ethics consultant's character or virtue.
This point is important both practically and theoretically, be-
cause some contractual and work arrangements for ethics con-
sultants might promote or enhance the expression of this char-
acter or virtue, while other arrangements might significantly
thwart its expression and stymie its development.
39.
See Friedrich, supra note 32, at 40--42.
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