National Right to Life Convention Burke Balch JD Powell Center for Medical Ethics July 9 2015 What is Involuntary Euthanasia Understand terms Voluntary Nonvoluntary Involuntary Medical Ethic Has Changed ID: 322543
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Denial of Treatment Against Your Will: The Battle We’re In Danger of Losing
National Right to Life Convention
Burke Balch, J.D.
Powell Center for Medical Ethics
July 9, 2015Slide2
What is Involuntary Euthanasia?
Understand terms:
Voluntary
Nonvoluntary
InvoluntarySlide3
Medical Ethic Has Changed
“a turnabout in medical ethics, one in which doctors no longer want to employ all that medical science has to offer to keep patients alive and families find themselves fighting for their loved ones’ right to live.”
Ann Wlazelek, “Pendulum swings in life-saving efforts: Hospitals’ policies on doing all they can to keep patients alive have changed,” [Allentown, Penn.]
Morning Call
, June 13, 2004.Slide4
Involuntary Denial of Treatment Common
2004
Archives of Internal Medicine
study: treatment decisions physicians said they would make inconsistent with the patients’ advance directives in 65% of cases -- typically based on doctor’s perception of the patient’s “quality of life.”Slide5
Involuntary Denial of Treatment Common
“About 15 years ago, at least 80 percent of the cases were right-to-die kinds of cases. Today, it’s more like at least 80 percent of the cases are the other direction: family members who are pushing for continued or more aggressive life support and doctors and nurses who think that’s wrong.”
Dr. Lachlan Forrow, director of ethics programs at Boston’s Beth Israel Deaconess Medical CenterSlide6
What Does “Futility” Mean?
Physiological futility
Qualitative futilitySlide7
Documenting Provider Denial of Treatment
“Will Your Advance Directive Be Followed?” report from www.nrlc.orgSlide8
Who Defines Duty of Care?
Malpractice standards set by peers (doctors & medical organizations)
Duty of care can be imposed by statute
License requirements
EMPTALA
Distinguish technical medical judgment from values judgment
Firefighter analogySlide9
What about Conscience Rights?
Claim: doctors not technicians, but moral actors
Right to refuse participation in abortion, suicide
Right to refuse to impose pain, e.g. operate without anesthesia on masochistSlide10
What about Conscience Rights?
Rejoinder: must balance rights
Discrimination based on race
Compare nature of conflicting rights and degree of intrusion
Right to live vs. right to conscience
Permanent loss of life vs. temporary duty of careSlide11
Past Pro-Life Efforts
Treatment pending transfer (patient autonomy argument)
Medical groups have focused on hard cases
Time limits for treatment pending transfer
Texas 10 days
Virginia 14 daysSlide12
Treatment Pending Transfer
If a patient, or an individual authorized to act on the patient’s behalf , directs the provision of health care or nutrition or hydration,Slide13
Treatment Pending Transfer
the denial of which would in reasonable medical judgment be likely to result in or hasten the death of the patient, Slide14
Treatment Pending Transfer
a patient’s attending physician or health care provider who is unwilling to comply with the directive shall nevertheless comply with the directive pending completion of the transfer of the patient to a physician or health care provider willing to comply with the directive. Slide15
New Approach: Anti-Discrimination
Federal Law limits on use of comparative effectiveness research to set Medicare/Medicaid coverage limits
Reaction to NICE
QuALYs
42 USCS § 1320e(c) (1)& (d)(1)Slide16
OK Non-Discrimination in Treatment Act
A health care provider shall not deny to a patient a life-preserving health care service the provider provides to other patients, and the provision of which is directed by the patient or a person legally authorized to make health care decisions for the patient
:Slide17
OK Non-Discrimination in Treatment Act
1. On the basis of a view that treats extending the life of an elderly, disabled, or terminally ill individual as of lower value than extending the life of an individual who is younger, nondisabled, or not terminally ill; orSlide18
OK Non-Discrimination in Treatment Act
2.
On the basis of disagreement with how the patient or person legally authorized to make health care decisions for the patient values the trade-off between extending the length of the patient's life and the risk of disability.Slide19
Physiologically Futile Treatment Not Covered
"Life-preserving health care service" means a health care service, the denial of which, in reasonable medical judgment, will result in or hasten the death of the patientSlide20
Enforcement Mechanism
A cause of action for injunctive relief may be maintained against any health care provider who is reasonably believed to be about to violate, who is in the course of violating, or who has violated the Nondiscrimination in Treatment Act by an affected patient or a person legally authorized to make health care decisions for the patient.Slide21
Standards of Proof
In an action pursuant to this act, if the plaintiff pleads a prima facie case, the health care provider may defend his or her or its actions by pleading a legitimate, nondiscriminatory reason or reasons that provided a basis for the denial of treatment, subject to an opportunity for the plaintiff to plead that the reason or reasons for the denial of treatment are discriminatory in their application.Slide22
Advantages and Disadvantages
Treat pending transfer
If adopted, absolute duty to treat
Requires objective evidence of effectiveness of treatment
Drs. have been successful in opposing
Lends itself to time-based compromise
Anti-discrimination
If adopted, only denial of treatment based on prohibited factors prevented
Requires objective evidence of subjective intent
Harder to oppose and harder to push for “compromise”Slide23
Debate in the Real Legislative/Public Opinion Fora
Tony
Lauinger
Oklahomans for Life