The Texas Advance Directives Act: Must a Death Panel Be a Star Chamber?

American Journal of Bioethics, 15(8) (2015): 41-43

Posted: 8 Dec 2015  

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 6, 2015

Abstract

The dispute resolution mechanism in the Texas Advance Directives Act (TADA) fails to comply with core ethical and legal notions of fundamental fairness. Kapottos and Youngner (2015) acknowledge these concerns. But instead of materially engaging these long-running debates, they argue that TADA’s procedural due process problems can be readily mitigated or eliminated with relatively modest reforms.

Having summarily dismissed traditional concerns with TADA, Kapottos and Youngner turn to focus on a “new, more serious criticism.” The problem they address results from TADA’s voluntary, opt-in, and bottom-up nature. Under TADA, it is completely within the discretion of attending physicians as to when to bring a case to the review committee. But that discretion can be abused. Physicians can be inequitable in selecting the patients against whom they will use the process. For example, a physician might invoke the process more often against minority patients who are otherwise situated similarly to nonminority patients.

I respond to Kapottos and Youngner in two parts. First, I argue that they too quickly dismiss existing due process problems with TADA. Second, I argue that while a “widely visible taxonomy of cases” may help ensure a more equitable application of TADA, it is insufficient. The nonuniform and variable use of TADA can be successfully addressed only through the automatic triggering of committee review.

Keywords: TADA, medical futility, due process, non-beneficial treatment, bioethics

JEL Classification: K32, I18

Suggested Citation

Pope, Thaddeus Mason, The Texas Advance Directives Act: Must a Death Panel Be a Star Chamber? (April 6, 2015). American Journal of Bioethics, 15(8) (2015): 41-43. Available at SSRN: https://ssrn.com/abstract=2699960

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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