Toward a Theory of Process

Dennis Thompson has made a closely related point, noting recently that “It is surprising that hospital ethics—and institutional ethics more generally—has been so neglected.” Thompson Dennis F. , “Hospital Ethics,” 3 Cambridge Quarterly of Healthcare Ethics 203, 203 (1992). He goes on to examine ethics committees, favoring an advisory role in case consultation coupled with “expanded authority” to formulate standards and make policy. Id. at 208–09.

Wolf Susan M. , “Ethics Committees and Due Process: Nesting Rights in a Community of Caring,” 50 Maryland Law Review 798.

See, e.g., Mashaw Jerry L. , Due Process in the Administrative State 5 (New Haven: Yale University Press, 1985) (“the attempt to separate questions of substance and process…can never be wholly successful”).

See, e.g., Meisel Alan , The Right to Die 474–75 (New York: Wiley, 1989).

See Hoffman Diane E. , “Regulating Ethics Committees in Health Care Institutions—Is It Time?” 50 Maryland Law Review 746, 749–50 & nn.17, 18 (1991).

See Wolf Susan M. , “Ethics Committees in the Courts,” Hastings Center Report 12 (June 1986).

See id. at 13–14 (discussing In re Torres and In re Spring).

The first opinion to so order was, of course, In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922 (1976). A recent case to recommend committees is In re L.W., 482 N.W.2d 60 (Wis. 1992).

See Hoffmann , supra note 5, at 746–97, 750 & n.18 (discussing a Maryland State Bar Association proposal).

See, e.g., In re A.C., 573 A.2d 1235, 1237 n.2 (D.C. 1990).

See Md. Health-Gen. Code Ann. §§ 19-370 to -374 (1990 & Supp. 1992); N.J. Admin. Code tit. 8, §§ 43G-5.1(h)2. and 3. (1992), reprinted in New Jersey Commission on Legal and Ethical Problems in the Delivery of Health Care, The New Jersey Advance Directives for Health Care Act (and the Patient Self-Determination Act): A Guidebook for Health Care Professionals 76–77 (1992); New York State Task Force on Life and the Law, When Others Must Choose: Deciding for Patients Without Capacity 137, 261 (1992), as modified by New York State Task Force on Life and the Law, Letter to Hon. Richard N. Gottfried (Dec. 31, 1992}.

Beauchamp Tom L. Childress James F. , Principles of Biomedical Ethics (3d ed., New York: Oxford University Press, 1989).

See, e.g., Danner Clouser K. Gert Bernard , “A Critique of Principlism,” 15 Journal of Medicine and Philosophy 219 (1990). For a different attack on top-down (or deductive) versus bottom-up (or inductive) ethics, see Green Ronald M. , “Method in Bioethics: A Troubled Assessment,” 15 Journal of Medicine and Philosophy 179 (1990); Hoffmaster Barry , “The Theory and Practice of Applied Ethics,” XXX Dialogue 213 (1991). See generally Degrazia David , “Moving Forward in Bioethical Theory: Theories, Cases, and Specified Principlism,” 17 Journal of Medicine and Philosophy 511 (1992).

For discussion of each of these, see Degrazia , supra note 13.

See, e.g., Daniels Norman , Just Health Care 108 (New York: Cambridge University Press, 1985).

I am grateful to Dennis Thompson for this point.

Though the legal literature on process is vast, a number of these formulations are stated or suggested in selections in Robert Cover M. Fiss Owen M. , The Structure of Procedure (Mineola, NY: Foundation Press, 1979). The first two listed in text are taken from the selections by Michelman Frank I. Mashaw Jerry L. On therapeutic process see Wexler David B. , Therapeutic Jurisprudence: The Law as a Therapeutic Agent 243–305 (Durham, NC: Carolina Academic Press, 1990). On process as communication see Minow Martha , Making All the Difference: Inclusion, Exclusion, and the American Law 295 (Ithaca: Cornell University Press, 1990).

A classic in this vein is Fuller Lon L. , “The Forms and Limits of Adjudication,” 92 Harvard Law Review 353 (1978).

See, e.g., Mashaw , supra note 3, part of the considerable literature spawned by what he (at 33) calls “the due process revolution.”

Emanuel Ezekiel J. , The Ends of Human Life: Medical Ethics in a Liberal Polity 34 (Cambridge: Harvard University Press, 1991). See also Arras John D. , “Toward an Ethic of Ambiguity,” Hastings Center Report 25 (Apr. 1984).

See Thompson , supra note 1.

See, e.g., Donaldson Thomas , Corporations & Morality (Englewood Cliffs, NJ: Prentice-Hall, 1982).

See French Peter A. , Collective and Corporate Responsibility (New York: Columbia University Press, 1984); May Larry Hoffman Stacey , eds., Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics (Savage, MD: Rowman & Littlefield, 1991).

See, e.g., Wolgast Elizabeth , Ethics of an Artificial Person: Lost Responsibility in Professions and Organizations (Stanford, CA: Stanford University Press, 1992).

American Hospital Association, Ethical Conduct for Health Care Institutions (Chicago: American Hospital Association, 1992).

Catholic Health Association, Social Accountability Budget for Not-for-Profit Healthcare Organizations (St. Louis: Catholic Health Association, 1989).

See, e.g., Miles Steven H. Singer Peter A. Siegler Mark , “Conflicts between Patients' Wishes to Forgo Treatment and the Policies of Health Care Facilities,” 321 New Engl. J. Med. 48 (1989); Annas George J. , “Transferring the Ethical Hot Potato,” Hastings Center Report 20 (Feb. 1987).

See Katz Jay , The Silent World of Doctor and Patient (New York: Free Press, 1984).

Jorge Garcia has pointed out that bioethics has almost entirely ignored service workers. See Garcia Jorge L.A. , “African-American Perspectives, Cultural Relativism and Normative Issues: Some Conceptual Questions,” in African-American Perspectives on Biomedical Ethics 11, 57–58 n.49 ( Flack Harley E. Pellegrino Edmund D. , eds., Washington, DC: Georgetown University Press, 1992).

See Katz , supra note 28; Burt Robert A. , Taking Care of Strangers (New York: Free Press, 1979).

See Wolf , supra note 2, at 826.

See id., at 827 & n.106.

See, e.g., Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying (Bloomington: Indiana University Press & The Hastings Center, 1987).

Annette Dula writes: “Institutional racism has been an effective barrier to health care…. [That] racism…is manifested in the way African-Americans are treated and in the way that institutional views about poor people overlap with views about African-Americans.” Dula Annette , “Yes, There Are African-American Perspectives on Bioethics,” in African-American Perspectives on Biomedical Ethics 193, 195 ( Flack Harley E. Pellegrino Edmund D. , eds., Washington, DC: Georgetown University Press, 1992).

See, e.g., Sherwin Susan , No Longer Patient: Feminist Ethics & Health Care 223–26 (Philadelphia: Temple University Press, 1992); Wenger Nanette K. , “Exclusion of the Elderly and Women from Coronary Trials: Is Their Quality of Care Compromised?” 268 JAMA 1460 (1992); Wenneker Mark B. Epstein Arnold M. , “Racial Inequalities in the Use of Procedures for Patients with Ischemic Heart Disease in Massachusetts,” 261 JAMA 233 (1989); Blendon Robert J. Aiken Linda H. Freeman Howard E. Corey Christopher R. , “Access to Medical Care for Black and White Americans: A Matter of Continuing Concern,” 261 JAMA 278 (1989); Svensson Craig K. , “Representation of American Blacks in Clinical Trials of New Drugs,” 261 JAMA 263 (1989).

See Wenger , supra note 35; Wenneker Epstein , supra note 35; Blendon , supra note 35.

By suggesting that some others might share the patient's standpoint, I do not mean to suggest that all members of certain gender, racial, and ethnic groups share the same standpoint. I merely mean to suggest that committee members and caregivers who do not share the same groups as the patient may find they have to deal with additional barriers to understanding her viewpoint. Clearly, members of the same groups may also find substantial differences and barriers to understanding each others' views. Note that I use “groups” in the plural to recognize that a person may be part of more than one, and that the identification and delimitation of different groups is almost always problematic. See, e.g., Crenshaw Kimberle , “Whose Story Is It Anyway? Feminist and Antiracist Appropriations of Anita Hill,” in Raceing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality 402 ( Morrison Toni , ed., New York: Pantheon Books, 1992).

See, e.g., Beauchamp Childress , supra note 12.

Martha Minow discussed a striking example of the latter approach in her book, supra note 17, at 341–49.

Cf. Mashaw , supra note 3, at 177 (“Participation is an obvious candidate for our set of dignitary process values….[to protect] dignity and self-respect”).

See, e.g., Tyler Tom R. , “The Psychological Consequences of Judicial Procedures: Implications for Civil Commitment Hearings,” 46 SMU Law Review 433; Wexler , supra note 17.

See, e.g., Mashaw , supra note 3, at 158–253.

See, e.g., Hoffmaster , supra note 13.

There is already some important work on this. See, e.g., Greenfield Sheldon Kaplan Sherrie Ware John E. , “Expanding Patient Involvement in Care: Effects on Patient Outcomes,” 102 Annals of Internal Medicine 520 (1985).

Note that the recent proposals of the New York State Task Force on Life and the Law, cited supra note 11, would give committees greater authority than my analysis recommends.

Cf. Mashaw , supra note 3, at 174 (“The simple dynamics of processes may subtly advantage or disadvantage certain types of claims or claimants.”).

For a court confusing ethics and law, see Brophy v. New England Sinai Hospital, 497 N.E.2d 626 (1986).

It should go without saying that judges should never consider ethics committee advice or communicate with members of the ethics committee off the record. This gives counsel no opportunity to challenge the relevance or quality of the committee's determination. It also leaves the judge with few tools by which to evaluate the committee or its advice. Indeed, it leaves the judge entirely vulnerable to the confusion of ethics and law. Most importantly, it leaves the patient completely exposed to having those injustices that may have been perpetrated by the committee now written into law through the court's judgment.

This is not to dismiss the controversies in jurisprudence and the philosophy of law over the nature of adjudication, nor to dismiss the debates over the nature and utility of legal rights. Indeed, there is a vigorous critique of the language of “rights” in law. See, e.g., Tushnet Mark , “An Essay on Rights,” 62 Texas Law Review 1363 (1984). 1 also do not mean to overlook particularly thoughtful students of judicial process who do search for forms of process that protect both rights and caregiving bonds. See, e.g., Minow , supra note 17. I merely mean to suggest that ethics committees have no viable way to escape the complexities I enumerate; there is no defensible role or formal posture in which they can hide from the fact that they are usually dealing with a sick and dependent patient in need of caregiving, and in a controversial moral domain in which “rights” are only one of several dominant categories.

“Between the idea/ And the reality/ Between the motion/ And the act/ Falls the Shadow.” Eliot T.S. , The Hollow Men, in Selected Poems 75, 80 (New York: Harcourt Brace Jovanovich, 1964).