ThaddeusPope.com

CONSENT & PATERNALISM. “Consent” is a recurring theme in much of my work. This theme is manifested in two distinct ways. First, starting with a presumption against interference, I explore the conditions under which individual liberty can be justifiably restricted. For example, I address this issue both in my article on smoking regulations in the University of Pittsburgh Law Review, and in more recent articles in the Georgia State University Law Review, the UMKC Law Review, and the Oklahoma City University Law Review. As coercive measures are increasingly proposed and implemented to combat the behaviorally-based epidemics of today and tomorrow, the legitimacy of hard paternalistic public health laws demands further scholarly attention.  I am excited to continue this line of inquiry in a book chapter for Prevention vs. Treatment: Philosophical, Empirical, and Cultural Reflections and in briefings on organ donation and "crisis standards of care" for the Journal of Clinical Ethics.

Second, the theme of consent is manifested in my work through my exploration of the ways in which individuals can be made sufficiently informed and educated, to obviate the need for the restriction of their liberty. For example, I address this issue in my article on informed consent and advance directives in Health Matrix.  In a piece with Lindsey Anderson for the Widener Law Review, I explore the degree to which individuals should be free to voluntarily stop eating and drinking as a means to hasten death.  Finally, I cover both informed consent and advance care planning in two briefings for the Journal of Clinical Ethics.

AUTONOMY & END-OF-LIFE. My more recent work also focuses on the limits of autonomy, but specifically in the end-of-life context. While many agree that there must be limits on the right of a patient to request specific medical interventions, few can agree on just where to place those limits. Consequently, few effective limits have been imposed. In my article for the Tennessee Law Review , I analyze why legislative attempts to set these limits have failed. In our article in the Ohio State Journal on Dispute Resolution, Ellen Waldman and I argue that since mediation cannot resolve all end-of-life disputes, we must further attend to the default rules which now empower patients to demand medically inappropriate care. In my article for Marquette Elder's Advisor, I debunk the popular myth that the courts are or have been hostile to health care providers' unilateral decisions to stop inappropriate treatment.  Finally, in my article for the St. Louis Journal of Health Law & Policy, I demonstrate the promise and limitations of surrogate selection as a solution to intractable medical futility disputes. 

PROCEDURAL FAIRNESS & END-OF-LIFE. In a group of newer articles (including some short commentaries in the American Journal of Bioethics, the Health Law Journal of the N.Y. State Bar Association, and elsewhere), I turn from substantive law to procedural law. Because no consensus has been reached on clinical guidelines for inappropriate end-of-life care, futility disputes are often relegated to resolution by pure process. But, as currently implmented, that process is not sufficiently fair. The ultimate decision maker, the intramural ethics committee, lacks the requisite independence and competence. In my "Hospital Ethics Committees as a Forum of Last Resort," I demonstrate that the Texas Advance Directives Act, which grants HECs ultimate authority, violates the procedural due process clause of the 14th Amendment. I colorfully present these same issues in the 2008 National Health Law Moot Court problem published in the Journal of Legal Medicine. I explore balancing provider and patient rights in briefings on both conscience clauses and medical futility in the Journal of Clinical Ethics.  Finally, in my article for the Campbell Law Review, I propose reassigning the decision making authority of intramural HECs to extramural, shared, and/or quasi-appellate HECs.

The Government's Duty to Preserve in False Claims Act Litigation, American Health Lawyers Association (AHLA) HEALTHCARE LIABILITY & LITIGATION PRACTICE HEALTH BRIEFS E-NEWSLETTER (Oct. 2012).

End-of-Life Care: A Lack of Planning Complicates Matters, MINNEAPOLIS STAR-TRIBUNE, Jan. 25, 2011, at 8A.

Consent continues to be a theme in my ongoing scholarship. My current projects examine when consent can be overriden in the contexts of (i) bioethics, (ii) torts, and (iii) public health law.

1. Medical Futility: Overriding Consent at the End-of-Life.  Normally, individuals or their surrogates decide whether or not to withdraw life-sustaining medical treatment (LSMT). But, increasingly, health care providers are refusing to comply with requests to continue LSMT where they consider such requests to be "medically inappropriate." My research on medical futility analyzes the legal bases for and limits on providers making such unilateral decisions.

2. Assumption of Risk: Overriding Consent in Tort Law.  Individuals also normally decide whether or not to confront everyday health risks like eating a Big Mac. But, increasingly, the law is restricting their ability to make such (bad) choices. Where individuals knowingly and voluntarily confront the risks, ought their liberty be limitated? Is this an appropriate role for public health law? Is it an appropriate role for tort law?

3. Conditions for Justified Hard Paternalism.  While hard paternalism is the only plausible liberty limiting principle underlying much public health law, few theorists have defended justificatory conditions for hard paternalism.  In this piece I identify and defend seven necessary and sufficient conditions for justified hard public health paternalism.