At Law: Ethics Committees: From Ethical Comfort to Ethical Cover

Abstract

Fifteen years ago, my first column was entitled re Quinlan: Legal Comfort for Doctors. [1] The subtitle referred to New Jersey Supreme Court's suggestion that instead of bringing cases like Quinlan to court, families and physicians should rely on a hospital committee. The court based this recommendation on suggestion of a Texas pediatrician, Karen Teel, that a committee composed of physicians, social workers, attorneys and theologians could help to diffuse professional responsbility for decision.... I was unenthusiastic about New Jersey solution, nothing that the idea seems to be that all feel more (ethically?) 'comfortable' with decisions thus arrived at for which no one individual is seen as responsible and for which no individual can be held legally accountable. Although Quinlan case has been touchtone for legal and ethical discussions of right to refuse medical treatment for past fifteen years, no other court has delegated immunity-granting authority to an committee. On other hand, strategy of using to provide for physicians and others worried about either legal liability or public reaction has prospered. committees have grown from an anomalous entity to provide ethical comfort to a few, to an almost standard entity to provide ethical cover for many. Without threat of legal liability and community disapproval (which could lead to new laws), would probably not have developed at all. Law and are distinct, although related, activities. The law is mandatory, setting standards that can only be breached at risk of civil or criminal liability. Ethics is aspirational, setting forth universal goals that we should try to meet, but suffer no temporal penalty for falling short of. Ethicists often criticize law as too blunt, as scaring people unnecessarily, as interfering, and as counterproductive. All of these criticisms are sometimes fair. Nonetheless, over past two decades greatest force propelling bioethics in U.S. has been law. The History of Committees In 1960s some states required that hospital review approved any abortion before it could be legally performed. And when kidney dialysis began, and there was a shortage of dialysis machines, some hospitals set up to decide which of competing candidates would receive dialysis. Roe v. Wade and its companion case v. Botton ended abortion committees, and both public reaction and End-Stage Renal Disease Act ended dialysis patient selection committees. Although there have been periodic attempts to use similar committees to make decisions for individual patients (for example, psychosurgery committees), prospective decisionmaking by committee for individual patients has never held wide support either in medical community or public. Infant Care Review or Doe were established in many neonatal ICUs across country as a direct response to Reagan Administration's Baby regulations. Under threat of intrusive federal investigations, American Academy of Pediatrics and others recommended an alternative: hospital-based that would be available to review contested decisions to withdraw treatment from handicapped newborns. Many of these have survived, even though federal Baby regulations did not. Institutional Review Boards (IRBs) The most longstanding ethics - type committee is Institutional Review Board, or IRB. This committee was created by law, and specific federal regulations govern its conduct. In 1960s, when such were rare, they were usually designated as human studies committees, or human subjects committees. In 1970s their name was changed to institutional committees--and this has always seemed just right, because primary function of committee has become to protect institution, and its membership is almost exclusively made up of researchers (not potentials subjects) from particular institution. …