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The fifth commission.

The ability to learn from mistakes is one serviceable definition of intelligence. More often than not in Washington, legislators and bureaucrats seem to stare right through past errors in judgment.

But there are exceptions, and now the U.S. Congress is showing signs of intelligence when it comes to establishing a national commission on biomedical ethics, There have been four attempts to establish such commissions in the past, and for both good and not so good reasons, none of these commissions is in operation today. In an attempt to learn what worked and what didn't, Senators Mark Hatfield (R-Ore.), Edward Kennedy (D-Mass.), and Dennis DeConcini (D-Ariz.) asked the Office of Technology Assessment to prepare a "background" paper exploring the strengths and weaknesses of past commissions and presenting options (OTA doesn't make recommendations) for creating a successful new one.

The National Research Act of 1974 created the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. That commission consisted of eleven members: five scientists, three lawyers, two ethicists, and one person in public affairs. The Secretary of Health, Education and Welfare named the members. The commission met monthly during its four-year existence, and it had a staff of sixteen. Its most lasting impact was the creation of ethical guidelines to protect human subjects who might not be capable of giving informed consent, such as prisoners, children, and the "mentally infirm."

OTA reportedly concludes that both the National Commission and the Ethics Advisory Board that was its successor at the Department of Health suffered from being a part of the agency they were supposed to be advising. Although the legislation creating the National Commission required that the secretary of health either accept its recommendations within 180 days or publish a Federal Register notice saying why they were being rejected, that didn't always happen. In one case, in proposed regulations involving the "institutionalized mentally infirm," that requirement was ignored.

A similar problem ended the Ethics Advisory Board. When it was created, the secretary appointed an eleven-member board made up of lawyers, a theologian, a philosopher, clinicians, researchers, and a member of the public. But after two years, the health department simply disbanded the board, despite a law requiring its existence. Although there are lots of possible explanations for why the department took such a step, the most relevant is because it could.

The two other national commissions existed outside of executive departments. The President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research came to life in 1980. The President appointed its eleven members, and there were specific guidelines for who they should be: three who practiced medicine, three biomedical or behavioral researchers, and five from other fields. It met twenty times during its three-year existence and had a staff of between thirty and forty people.

OTA is expected to conclude that the success of the President's Commission derived from three factors: it was able to steer clear of political influence in generating its reports, it had adequate staff and funding, and it received a broad mandate. In addition to the seven topics it had a statutory requirement to address, it produced three additional documents not requested in legislation.

By contrast, the fourth attempt at a national commission was a complete failure. Congress created the Biomedical Ethics Advisory Committee as its own ethical advisory body. But politics delayed choosing members, it had only two staffers, and its funding never materialized. It met once, less than a week before it was scheduled to expire.

Many believe that to succeed, a new commission must avoid these political pitfalls. It should be created in such a way that neither Congress nor the executive branch can overly influence its actions. Reportedly, OTA argues for a standing body rather than ad hoc commissions to address hot-button issues, and it suggests requiring the commission to address certain topics, but allowing commissioners to turn their attention to new issues as they arise.

Will a new commission be created? Possibly. Senator Hatfield has introduced legislation to create a body along these lines. His staff is quick to call attention to the fact that twenty-seven countries--including Cyprus, Luxembourg, and Malta--either have or are in the process of creating national bioethics committees.

Hatfield's staff says Senator Kennedy has promised that the Labor and Human Resources Committee he chairs will hold hearings to discuss the creation of a national commission. The final OTA report (Biomedical Ethics in U.S. Public Policy) is expected to be released in conjunction with the these hearings. But right now, Washington is obsessed with health care reform, and Congress may find it convenient to ignore some of the more difficult ethical puzzles that such reform is bound to pose.
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Title Annotation:National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research; Ethics Advisory Board
Author:Palca, Joseph
Publication:The Hastings Center Report
Date:Jul 1, 1993
Words:789
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