Rethinking the Shield of Immunity: Should Ethics Committees Be Accountable for Their Mistakes?

Abstract:     
This article focuses on the role of healthcare ethics committees in resolving difficult ethical questions in patient care and the repercussion of shielding their actions from society's view. Although the societal importance of ethics committees actions seem obvious, in many jurisdictions the records of committee proceedings are privileged and hence undiscoverable. In addition, several state statutes afford ethics committees and their members immunity for certain acts. While many in the bioethics community personally laud the insulation such statutes provide, the effect of this legislation is to sever the historical inter-relationship between the courts and ethics committees, in which a court ultimately could review committee actions.

This article argues that ethics committees, while preferable to time-consuming, adversarial procedures, should properly function as adjuncts to the courts, providing case consultation reviewable by the judiciary. It begins by showing how immunity and privilege statutes shield some committee actions from judicial review, and then considers and rejects several justifications for providing immunity to ethics committees and their members. This article finally concludes that courts should bear the final authority for patient care decisions until the value of ethics committees has been more convincingly demonstrated.

Note: This is a description of the article and not the actual abstract.

Keywords: hospital ethics committees, end-of-life decisionmaking, biomedical ethics, immunity, privilege, accountability

Accepted Paper Series