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New Jersey - still the nation's proving ground?

The first American court t6 suggest ethics committees and then to change to a bureaucrat at the bedside is having second thoughts about the officiary and renewed faith in its initial mechanism for the protection of vulnerable patients.

In the historic Quinlan case,' the New jersey Supreme Court embraced the notion that using a miltidisciplinary ethics committee approach to hospital treatment decisions more readily affirms the integrity of patient, family, physician, and institution as proper cooperators in difficult decisions at the end of life than does intrusive recourse to courts and state agencies.

Nearly a decade later, this same court, in resolving the plight of Claire Conroy,' charily eschewed this role for ethics committees in the nursing home. In the pronounced absence of state legislative solutions,' seven justices launched a problematic juridical experiment involving the Ombudsman for the Institutionalized Elderly.' Decisions to forgo or withdraw life-sustaining treatments on behalf of terminally ill, elderly, incompetent nursing home residents required, for the first time, policing, through involvement of a governmental bureaucracy.

The nature and extent of the ombudsman's duties recently enkindled a statewide controversy in which the wisdom of his continued participation in the decisionmaking process has been questioned. Critics charge that his lately self-defined policies and procedures' fetter rather than foster the privacy rights of patients recognized historically by the very court that entrusted the ombudsman to protect them.6 The controversy centers around the ombudsman's unilateral presumption of patient incompetence, and a diminished role of family, physician, and institution, as well as an adamant opposition to the expansion of ethics committees into long-term care facilities. So deep is the crisis that hospital, medical, nursing, and nursing home associations have sued to curtail the rule-making activity of the office' and the Commissioner of Health has proposed interim regulations to address the confusion and concern of patients, families, and caregivers.' Associate justice Stewart G. Pollock, appreciating the public's growing disquiet with governmental involvement in private decisionmaking, reassessed the efficacy of nursing home ethics committees in the case of Nancy Ellen jobes and held that "committee review can be more sensitive, prompt, and discreet than either judicial review or the ombudsman's investigation. This makes such intervention acceptable to both the family and the medical community, while assuring that decisions involving the life and death of incompetents will serve their best interests." The New jersey Commission on Legal and Ethical Problems in the Delivery of Health Care, established in 1985 to advise the legislature and executive on bioethical policy,' has sought to pick up where the court must constitutionally, leave off. It serves as the principal forum of public discussion concerning the court's pronouncements and has established a Task Force on Institutional Ethics Committees. Its preliminary recommendations acknowledge the failure of the ombudsman experiment to provide a workable patient advocacy mechanism and suggest that ethics committees present the policy alternative best able to honor the principles of privacy, family surrogacy, and professional integrity that are at the very core of the New jersey Supreme Court's consistent guidance. Chances are high that the state whose courts were the first to address medical decisionmaking for the vulnerable patient will be among the last to act legislatively on this matter. The irony is that a silent legislature has prompted further judicial introspection and a reassuring knowledge that it is possible to learn from the wisdom and infrequent error of a court with the largeness of spirit to seek to remedy a juridical experiment gone awry. This remains the unproven promise of nursing home ethics committees and the continuing challenge of New jersey's health care community."
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Title Annotation:legal notes about ethics committees
Author:Armstrong, Paul W.
Publication:The Hastings Center Report
Date:Sep 1, 1989
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