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Multi-Institutional Healthcare Ethics Committees: The Procedurally Fair Internal Dispute Resolution Mechanism

77 Pages Posted: 26 Mar 2009 Last revised: 6 Nov 2013

Thaddeus Mason Pope

Mitchell Hamline School of Law; Queensland University of Technology - Australian Health Law Research Center; Saint Georges University; Alden March Bioethics Institute

Date Written: April 27, 2009

Abstract

2.6 million Americans die each year. A majority of these deaths occur in a healthcare institution as the result of a deliberate decision to stop life sustaining medical treatment. Unfortunately, these end-of-life decisions are marked with significant conflict between patients' family members and healthcare providers. Healthcare ethics committees (HECs) have been the dispute resolution forum for many of these conflicts.

HECs generally have been considered to play a mere advisory, facilitative role. But, in fact, HECs often serve a decision making role. Both in law and practice HECs increasingly have been given significant authority and responsibility to make treatment decisions. Sometimes, HECs make decisions on behalf of incapacitated patients with no friends or family. Other times, HECs adjudicate disputes between providers and the patient or patient's family.

Unfortunately, HECs are not up to the task. They lack the necessary independence, diversity, composition, training, or resources. HECs are overwhelmingly intramural bodies, comprised of professionals employed directly or indirectly by the very same institution whose dispute the HEC adjudicates. HECs make decisions that are corrupted, biased, careless, and arbitrary.

To address the problems of intramural HECs, I propose that their adjudicatory authority be relocated to a multi-institutional HEC (MI-HEC). Thereby, no HEC could have a controlling voice in the adjudication of its own dispute. A multi-institutional HEC preserves the best but avoids the worst of intramural HECs. Specifically, the MI-HEC preserves the expertise and extrajudicial nature of the HEC. But in contrast to an intramural HEC, a multi-institutional HEC possesses better resources, a greater diversity of perspectives, and the neutrality and independence required by due process.

Keywords: bioethics, ethics committee, ADR, end-of-life, IRB, institutional review board, dispute resolution, conflict of interest, medical futility

JEL Classification: I00, I18, K32, K40

Suggested Citation

Pope, Thaddeus Mason, Multi-Institutional Healthcare Ethics Committees: The Procedurally Fair Internal Dispute Resolution Mechanism (April 27, 2009). Campbell Law Review, Vol. 31, p. 257; Widener Law School Legal Studies Research Paper No. 09-17. Available at SSRN: https://ssrn.com/abstract=1367800

Thaddeus Mason Pope (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Avenue
Room 320
Saint Paul, MN 55105
United States
651-695-7661 (Phone)

HOME PAGE: http://www.thaddeuspope.com

Queensland University of Technology - Australian Health Law Research Center ( email )

2 George Street
Brisbane, Queensland 4000
Australia

Saint Georges University ( email )

West Indies
Grenada

HOME PAGE: http://www.thaddeuspope.com

Alden March Bioethics Institute ( email )

47 New Scotland Ave
MC 153
Albany, NY 12208
United States

HOME PAGE: http://www.thaddeuspope.com

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