Institutional ethics committees (IECs) now exist at many health care facilities and are in the planning stages at others. Due in part to the recent origins of IECs and the continuing debate over their optimal composition, role, and status in health care institutions, legislatures and courts have yet to recognize or clarify their legal status. Neither reported cases nor statutes clearly explain whether the proceedings and records of IECs must be disclosed to prosecuting attorneys or to parties to civil lawsuits, whether such information can be introduced as evidence in a trial, or whether persons serving on IECs or those providing information to IECs may be held civilly or criminally liable for actions by the committees.

This article sets forth some basic principles relating to the composition and functions of IECs, then examines the questions of confidentiality of IEC proceedings and immunity for persons serving on or providing information to the committees. Several reasons against and in favor of confidentiality and immunity are stated.

Circe directed Ulysses to fill the ears of his seamen with wax, so that they should not hear the strain [of the Sirens]; and to cause himself to be bound to the mast, and his people to he strictly enjoined, whatever be might say or do, by no means to release him till they should have passed the Sirens’ island. His men obeyed… . At the sound of the Sirens Ulysses struggled to get loose, and by cries and signs to his people begged to be released; but they, obedient to his previous orders, sprang forward and bound him still faster. They held on their course, and the music grew fainter till it ceased to be heard, when with joy, Ulysses gave his companions the signal to unseal their ears, and they relieved him from his bonds.

The standard of care with regard to any new medical technology develops slowly. Attitudes must change, and equipment must be purchased, installed and utilized. Technical problems must be resolved and protocols established. Advances are better understood and more aggressively pursued by some physicians than others, with a consequent disparity in implementation. Electronic fetal monitoring (EFM) is an example of such a technology. Little known to obstetricians 15 years ago, EFM has been accepted by practitioners widely and rapidly. Today, armed with guidelines from the American College of Obstetricians and Gynecologists (ACOG) and the recommendations of the National Institutes of Health (NIH), we monitor with EFM most obstetrical patients during labor and almost all high-risk patients before labor. While the practice or custom of a majority of obstetricians does not necessarily define the standard of care, the use of EFM for fetal surveillance during labor represents the prevailing medical and legal standard of care.

Organ transplantation has been a favorite topic of health lawyers since its inception. Organ procurement was addressed with the adoption of the Uniform Anatomical Gift Act in all fifty states, and “brain death” has been recognized both judicially and legislatively across the country. Nonetheless, it is now apparent that the major problems in organ transplantation are not legal and thus neither are their solutions. Heart and liver transplants are extreme and expensive interventions that few individuals can afford and few hospitals can offer. In an era of economic scarcity, how (if at all) should organ transplant procedures and other extreme and expensive treatment he introduced into the health delivery system?

Although it seems reasonable to expect federal leadership to establish a limited number of high-quality transplant centers, federal efforts to date have focused almost exclusively on trying to help the scattered organ procurement agencies become more efficient.

Circe directed Ulysses to fill the ears of his seamen with wax, so that they should not hear the strain [of the Sirens]; and to cause himself to be bound to the mast, and his people to he strictly enjoined, whatever be might say or do, by no means to release him till they should have passed the Sirens’ island. His men obeyed… . At the sound of the Sirens Ulysses struggled to get loose, and by cries and signs to his people begged to be released; but they, obedient to his previous orders, sprang forward and bound him still faster. They held on their course, and the music grew fainter till it ceased to be heard, when with joy, Ulysses gave his companions the signal to unseal their ears, and they relieved him from his bonds.

The development of concepts of autonomy and paternalism, as applied to children, women, the mentally ill and mentally retarded, and the elderly, has been a remarkable journey for philosophers, lawyers, physicians, caregivers, and politicians. Autonomy and paternalism have moved together in uneasy company to new definitions and applications derived in an extended dialectical process that has not only refined the definitions but also moved them away from the extreme ends of the gamut. To the extent that autonomy is equated with independence of action and paternalism is equated with coercive actions contrary to an individual's wishes or desires in order to achieve a beneficent end, we have exercised some of the most extreme and benighted paternalism while permitting in some sectors of our lives great independence on grounds of classical autonomy. Refinements of these concepts have moved us to new levels of sophistication and have made us aware of new issues and problems with which we have yet to wrestle.

The February 1985 issue of Law, Medicine & Health Care published excerpts from the Report of the Massachusetts Task Force on Organ Transplantation, along with a report by its chairman, Professor George Annas, and commentary by a number of esteemed scholars and practitioners who were generally complimentary of both the approach and substance of the work of the Task Force. We have thoroughly reviewed the Task Force Report and feel it necessary to take strong exception to a number of points, both procedural and substantive, raised there. In general, we are concerned that the Task Force Report perpetuates and reinforces a number of serious misconceptions about the issues surrounding transplantation that, in turn, lead to conclusions that are both inaccurate and misleading. This situation is most unfortunate be cause the complexities of the issues raised by transplantation require care ful scrutiny, especially where there are empirical data that clearly call into question these often strongly held predispositions. In the following sections we point out what we feel are the major shortcomings of the Massachusetts effort.

The Task Force on Organ Transplantation was announced on September 26, 1983 by the Secretary of Human Services and the Commissioner of Public Health, and charged with “the development of standards and processes for evaluating the use of organ transplantation” in Massachusetts. It was asked to

• make recommendations concerning how organ transplantation should he introduced and financed, including mechanisms to assure equality of access;

• determine what priority should be placed by the state on extreme and expensive medical interventions;

• determine what criteria should be used in patient selection; and

• determine how and by whom decisions concerning transplantation availability and patient selection criteria should be made.