Multi-Institutional Healthcare Ethics Committees: The Procedurally Fair Internal Dispute Resolution Mechanism
Thaddeus Mason Pope
Mitchell Hamline School of Law; Queensland University of Technology - Australian Health Law Research Center; Saint Georges University; Alden March Bioethics Institute
April 27, 2009
Campbell Law Review, Vol. 31, p. 257
Widener Law School Legal Studies Research Paper No. 09-17
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.
Number of Pages in PDF File: 77
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
Date posted: March 26, 2009 ; Last revised: November 6, 2013