At law. Ethics committees: from ethical comfort to ethical cover.

Fifteen years ago, my first column was entitled "In re Quinlan: Legal Comfort for Doctors." [1] The subtitle referred to the New Jersey Supreme Court's suggestion that instead of bringing cases like Quinlan to court, families and physicians should rely on a hospital ethics committee. The court based this recommendation on the suggestion of a Texas pediatrician, Karen Teel, that a committee "composed of physicians, social workers, attorneys and theologians" could help to diffuse the "professional responsbility for decision...." I was unenthusiastic about the 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 the Quinlan case has been the touchtone for legal and ethical discussions of the right to refuse medical treatment for the past fifteen years, no other court has delegated immunity-granting authority to an ethics committee. On the other hand, the strategy of using ethics committees to provide "comfort" for physicians and others worried about either legal liability or public reaction has prospered. "Ethics 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 the threat of legal liability and community disapproval (which could lead to new laws), ethics committees would probably not have developed at all. Law and ethics are distinct, although related, activities. The law is mandatory, setting standards that can only be breached at the 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 the law as too blunt, as scaring people unnecessarily, as interfering, and as counterproductive. All of these criticisms are sometimes fair. Nonetheless, over the past two decades the greatest force propelling bioethics in the U.S. has been the law. The History of "Ethics Committees" In the 1960s some states required that hospital review committees 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 committees to decide which of the competing candidates would receive dialysis. Roe v. Wade and its companion case Doe v. Botton ended the abortion committees, and both public reaction and the End-Stage Renal Disease Act ended the dialysis patient selection committees. Although there have been periodic attempts to use similar "ethics 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 the medical community or the public. Infant Care Review or "Baby Doe" committees were established in many neonatal ICUs across the country as a direct response to the Reagan Administration's Baby Doe regulations. Under the threat of intrusive federal investigations, the American Academy of Pediatrics and others recommended an alternative: hospital-based committees that would be available to review contested decisions to withdraw treatment from handicapped newborns. Many of these committees have survived, even though the federal Baby Doe regulations did not. Institutional Review Boards (IRBs) The most longstanding "ethics" - type committee is the Institutional Review Board, or IRB. This committee was created by law, and specific federal regulations govern its conduct. In the 1960s, when such committees were rare, they were usually designated as human studies committees, or human subjects committees. In the 1970s their name was changed to "institutional" committees--and this has always seemed just right, because the primary function of the committee has become to protect the institution, and its membership is almost exclusively made up of researchers (not potentials subjects) from the particular institution. …