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The Growing Decision Making Power of Healthcare Committees: Why Regulation Is Needed to Assure Due Process. Thaddeus Mason Pope, J.D., Ph.D. Widener University School of Law. 6 th Int’l Conf. Clinical Ethics Consultation Portland, Oregon $ May 14, 2010. Due Process

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slide1

The Growing Decision Making Power of Healthcare Committees: Why Regulation Is Needed to Assure Due Process

Thaddeus Mason Pope, J.D., Ph.D.

Widener University School of Law

6th Int’l Conf. Clinical Ethics Consultation

Portland, Oregon $ May 14, 2010

slide3

Due Process

The price of deference

slide4
Presume
  • Medical judgment is best

Unless

  • Uninformed
  • Sloppy
  • Biased
  • COI
problems with hecs
Problems with HECs
  • Corruption
  • Bias
  • Carelessness
  • Arbitrariness
slide6

ThaddeusPope.com

BePress.com

SSRN.com

ethics committees make decisions
Ethics Committees Make Decisions
  • Gatekeeper
  • Residual surrogate
  • Adjudicator
hec as adjudicator of futility disputes
HEC as Adjudicator of Futility Disputes

Tex. H&S Code ' 166.046, not modified by, H.B. 3325, Tex. Leg. 81(R)

slide16
De facto authority
  • “Lumping”
  • Practical barriers to court
  • Judicial deference
expanding hec authority
Expanding HEC Authority
  • N.Y. S.3164 (Duane) / A.7729 (Gottfried)
  • Mike E. Jorgensen, Today Is the Day We Free Electroconvulsive Therapy? 12 Quinn. Health L.J. 1 (2008).
expanding hec authority1
Expanding HEC Authority

Idaho

S.B. 1114, 60th Leg. (2009)

expansion understandable
Expansion Understandable

Intractable value conflict

Pure procedure

sloppiness understandable
Sloppiness Understandable
  • Developed to disclaim power
  • No “stick” = low priority
  • Lack of consensus
expected evolution
Expected evolution

Due

process

Power, authority

actual evolution
Actual evolution

Due

process

Power, authority

deference to professional judgment
Deference to professional judgment
  • Confidence
  • Little risk of error

1970sParham v. J.R.

1980sYoungberg v. Romeo

1990sWashington v. Harper

new reasons for less deference
New reasons for LESS deference
  • Greater focus on COI
  • Greater focus on bias
  • Greater focus on provider values
  • Thicker catalog of HEC errors
hec of tomorrow
HEC of Tomorrow
  • Modeled on other IDR (e.g. HCQIA)
  • Modeled on rationing boards
  • TJC standards and/or legal rules
  • Extramural, multi-institutional
slide31

Thaddeus Mason Pope, J.D., Ph.D.

Widener University School of Law

4601 Concord Pike, Room L325

Wilmington, Delaware 19803

T 302-477-2230

F 901-202-7549

E tmpope@widener.edu

W www.thaddeuspope.com