Posted on November 25, 2018 at 4:30 AM
I have repeatedly criticized the intramural resolution of medical futility conflicts as violating procedural due process. The most notable omissions are (1) a neutral decision maker, (2) appellate review, and (3) notice. But another missing element is a “written statement” of decision.
This requirement to set out all the relevant facts and evidence serves several purposes. First, it helps assure that a factual basis supports the deprivation (or dispossession) of life, liberty, or property. Second, it enables the affected individual to understand the grounds for the deprivation. Third, it provides a record upon which to prepare for appeal. By enabling an appellate tribunal to review the review committee’s reasons, a written statement protects against arbitrary and capricious deprivations.
I am not contending that all these conflicts must be adjudicated by courts. I specifically disclaimed that here. But whatever tribunal makes the decision should explain the basis for the decision. In other words, appropriate care committees in California, Texas, and Virginia can learn something from the numerous judgments issued by the British courts.