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, 2015

What is Involuntary Euthanasia?

• Understand terms:– Voluntary– Nonvoluntary– Involuntary

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.

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.”

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 Center

What Does “Futility” Mean?

• Physiological futility• Qualitative futility

Documenting Provider Denial of Treatment

• “Will Your Advance Directive Be Followed?” report from www.nrlc.org

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 analogy

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 masochist

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 care

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 days

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,

Treatment Pending Transfer

• the denial of which would in reasonable medical judgment be likely to result in or hasten the death of the patient,

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.

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)

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:

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; or

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.

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 patient

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.

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.

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”

Debate in the Real Legislative/Public Opinion Fora

• Tony Lauinger• Oklahomans for Life