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

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