Ethics Committees and Due Process: Nesting Rights in a Community of Caring
Susan M. Wolf
University of Minnesota Law School
Maryland Law Review, Vol. 50, No. 3, pp. 798-858, 1991
As ethics committees have become increasingly common in health care settings, and indeed sometimes mandated by law, they have become increasingly powerful. Yet by far the most problematic activity in which committees engage is to address ethical issues in ongoing cases involving current patients. Performing this function means that a committee is consulted in active treatment disputes. When the physician and the patient or the patient's family disagree, the physician (or far more rarely, the patient or family) may well take the case to the ethics committee. What the ethics committee advises can carry decisive weight. Moreover, many disputes will never make it into court; the committee will serve as the forum of last resort. Even when a case does make it to court, the committee's prior determination may exert substantial influence. Some judges have considered the prior committee determination, and have even suggested that courts should accord such a determination some deference.
Given the fact that ethics committees have been embraced by statute, regulation, and the courts, and are capable of wielding substantial power in a domain of protected rights, one might expect to see these committees according at least the rudiments of due process. That expectation, however, would be sorely disappointed. Most of these committees accord nothing resembling due process. All indications are that most fail even to give the patient notice and an opportunity to be heard, much less other tools a patient might need to participate effectively in the ethics committee's proceedings. Even more remarkably, there is no hue and cry. Instead, there is a widespread sense that ethics committees are fine as they are, without the cumbersome requirements of due process. This article explores why this is so -- the roots of that complacency. It is an argument for restructuring the ethics committee process by embracing a broad concept of due process, one grounded not only in law but also in ethics.
The article begins by asking what beliefs about ethics committees have allowed them to escape the requirements of due process. The prevailing mythology about ethics committees holds that these committees are purely advisory and wield no decision making power, and that they promote the interests of patients without any need for due process. The author debunks the mythology by showing that ethics committees may wield determinative power in treatment disputes and can greatly disadvantage patients. The article explores the question of how to describe ethics committees properly, in order to ground formulation of a suitable ethics committee process. Yet ethics committees have a troubling dual character. Committees are often depicted as support mechanisms for physicians and other hospital caregivers, with ethics committee consultation likened to medical consultation of expert colleagues. This view yields a model of process that is informal, focuses on the needs of caregivers, and offers no procedural protections to the patient. On the other hand, some scholars see ethics committees as adjudicatory, with the focus on resolving disputes. In this view, ethics committee process must be more formal, the focus is on patients' rights, and the committee must afford procedural protections. Ethics committees have drawn on both models and may actually flip back and forth. This shifting duality poses real dangers, especially for patients and their families, who may not be included at all in the committee's process. This dangerous double identity reflects an ongoing struggle between traditional physician paternalism and a newer effort to recognize patients' rights. The proliferation of ethics committees has been part of an attempt to revolutionize medical relationships by shifting decisional power to the patient, but it is a revolution that so far is incomplete and swamped in ambivalence.
The article pursues reconstruction. The author argues that the first step in constructing a sound process is to recognize that committees' foremost obligation is to serve and protect the patient. This mandates due process. The author urges due process not only in fulfillment of the committee's legal obligations, but also its ethical ones. The challenge is to find procedures that will protect not only the patient's rights and self-determination, but also her relationships to medical personnel and continued connection to professional and medical care-giving. To accomplish this, ethics committees not only should afford due process in their own case consultations, but should also become leading proponents of a broad value of due process in the clinical setting, catalyzing innovation and change. The idea is to domesticate due process, to make it not the lawyerly enemy of the physician, but the tool to guarantee that the patient is heard. In this way due process becomes the protector not only of rights, but of relationships. The goal is not to alienate the caregivers from their patient, but to cement them to her through a process that allows for conflict and rights. By embracing due process, ethics committees can become true advocates for patients' rights, rights that are nested in a community of care-giving.
Number of Pages in PDF File: 61
Keywords: Ethics committees, clinical ethics, ethics consultation, medical ethics, bioethics, organizational ethics, health law, due process, process rights, patients’ rightsAccepted Paper Series
Date posted: January 21, 2011
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