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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 LawWidener University School of Law
6th Int’l Conf. Clinical Ethics Consultation
Portland, Oregon Portland, Oregon $$ May 14, 2010 May 14, 2010
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HEC as Adjudicator of Futility Disputes
Tex. H&S Code ' 166.046, not modified by, H.B. 3325, Tex. Leg. 81(R)
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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).
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Sloppiness Understandable
Developed to disclaim power
No “stick” = low priority
Lack of consensus
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Deference to professional judgment
Confidence
Little risk of error
1970s Parham v. J.R.
1980s Youngberg v. Romeo
1990s Washington v. Harper
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New reasons for LESS deference
Greater focus on COI
Greater focus on bias
Greater focus on provider values
Thicker catalog of HEC errors
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HEC of Tomorrow
Modeled on other IDR (e.g. HCQIA)
Modeled on rationing boards
TJC standards and/or legal rules
Extramural, multi-institutional
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Thaddeus Mason Pope, J.D., Ph.D. Widener University School of Law4601 Concord Pike, Room L325Wilmington, Delaware 19803T 302-477-2230F 901-202-7549E [email protected] www.thaddeuspope.com