The Growing Power of Healthcare Ethics Committees Heightens Due Process Concerns

I just posted a complete draft of "The Growing Power of Healthcare Ethics Committees Heightens Due Process Concerns" for the Cardozo Journal of Conflict Resolution.



This is an extension of my 2009 article "Multi-Institutional Healthcare Ethics Committees: The Procedurally Fair Internal Dispute Resolution Mechanism."  I later critically discussed ethics committees in AJOB and in the Journal of Clinical Ethics.  The new article is largely an update and summary of the legal status of healthcare ethics committees in the United States.  Here is the abstract:  



Complex ethical situations, such as end-of-life medical treatment disputes, occur on a regular basis in healthcare settings. Healthcare ethics committees (HECs) have been a leading dispute resolution forum for many of these conflicts. But while the function of HECs has evolved from mediation to adjudication, the form of HECs has not evolved to adapt to this expanded and more consequential function.

HECs are typically multidisciplinary groups comprised of representatives from different departments of the healthcare facility: medicine, nursing, law, pastoral care, and social work, for example. HECs were established to support and advise patients, families, and caregivers as they work together to find solutions for delicate circumstances.

HECs generally have been considered to play a mere advisory, facilitative role. But, increasingly, HECs have been playing a decision making role. Both in law and in practice, state governments and healthcare facilities have been giving HECs more authority to adjudicate conflicts and more responsibility for making treatment decisions. For example, HECs sometimes make decisions on behalf of incapacitated patients with no friends or family. Other times, HECs adjudicate medical treatment disputes between providers and the patient or patient’s family.

Unfortunately, HECs are not up to this task. They are not ready to evolve from being mere advisers to being deciders. HECs are overwhelmingly intramural bodies. That is, they are comprised of professionals employed directly or indirectly by the very same institution whose decision the HEC adjudicates. But a lack of neutrality and independence is not the only problem. HECs typically also lack sufficient diversity, composition, training, and resources. Consequently, HECs make decisions that suffer from risks of corruption, bias, carelessness, and arbitrariness.

In prior published work, I have argued that the adjudicatory authority of HECs be relocated to a multi-institutional HEC. Thereby, no single institution’s HEC would have a controlling voice in the adjudication of its own dispute. A multi-institutional HEC preserves the expertise and extrajudicial nature of HECs. 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.

In this Article, my primary objective is not to further articulate this or any other solution. Instead, the objective of this Article is to further articulate the problem. As the power of HECs grows, concern over HEC fairness grows. There is a direct and positive correlation between the power of HECs and the importance of developing a fairer dispute resolution mechanism that better accords with procedural due process. In short, because we are giving HECs more authority, we must demand more accountability.