20 August 2009
Are Claims Really True That Your Request for Medical Services Under Health Care Reform May Be Reviewed (and denied) by a "Death Panel"?
A woman named Mary recently called into an AARP-sponsored health care "tele-town hall" with a question for President Obama. "I have been told," Mary said, in a call recorded on NPR, that under a new health care plan, "Medicare recipients would be visited and told to decide how they wish to die."
The foundation for Mary's fear is the fact that the health care bill contains a provision providing for doctors to discuss end of life decisions with their patients. Right Wing Christian Fundamentalists, and the likes if Rush Limbaugh, are using this to fan flames of fear that if you slide down the slippery slope, these could possibly become death panels. I decided to investigate this claim for myself by reading the materials and the Health Care Act.
I conclude that the claim is so outlandish that it can not be said to have any basis in reality.* An online source defines "surrealism" as being "an anti-rational [social] movement of imaginative liberation". The characterization of provisions of the Health Care Bill as leading to euthanasia is so irrational, imaginative, and so far liberated from any basis in fact, that it is fair to characterize it as surreal.
As a lawyer, and as a person who takes great interest in medical ethics, I think our society needs to do a better job of discussing end-of-life decisions in advance, before it becomes a crisis. I am offended at the suggestion that asking doctors to discuss end of life decisions with their patients, in advance of need, is the equivalent of advocating euthanasia. To the contrary, ascertaining a person's feelings about feeding tubes, respirators, and who they would trust to make decisions on their behalf (only in they were unable to make decisions themselves) gives that person more autonomy, more opportunity to direct his or her care. If anything, it gives more freedom and autonomy to the individual, not less.
When a person arrives at a hospital unconscious or unable to participate in the decision process, they are placing crucial decisions in the hands of people whom they may or may not know, and whose values they may or may not share. These circumstances can also place complete strangers in the awkward position of having to make the most personal of decisions for the patient.
We are not talking about an ordinary emergency room admission. In an ordinary case, the directive is clear: treat the person so they can recover and live a normal life. But modern medicine has the capacity to go far beyond this. Modern medicine can keep a heart pumping when the brain is dead. Modern medicine can keep a brain alive even when the ability to breathe independently has been snuffed away by injury. Modern medicine literally has at times to ask itself the question, "am I prolonging the process of living, or am I prolonging the process of dying?" The inquiry is laden with values and how we view ourselves.
One of my friends declined a brain surgery that would have erased his memory, because he felt that his memory was an inseparable part of what made him the person he was. Yet another person could, just as legitimately, choose to have the surgery even if they knew it would erase their memories and drastically change their personality.
Yes, the patient surely ought to be a part of the decision when it comes to medical treatment. What an advance directive does is to enlighten caregivers and providers about the patient's preferences in advance, to be used at a later time if (and only if) the patient lacks capacity to voice an opinion due to incapacity.
Sarah Palin is just, plain WRONG: A Health Care Power of Attorney is NOT the equivalent of euthanasia! A doctor or lawyer who wants to discuss this with you is NOT the equivalent of a Death Panel.
Indeed, having that conversation -- with your lawyer, your doctor, your spouse -- enables you to enunciate whatever you like about your care. Your wish may be that you want everything possible done to keep you alive, no matter how invasive, no matter what the prognosis, or no matter what the cost. That is your personal decision. If you have a health care proxy, you voice those wishes and your medical providers will respect it.
Hear me on this: EVERY PERSON READING THIS NEEDS AN ADVANCE CARE DIRECTIVE! (If you would like to talk about your planning needs, feel free to look at my legal web site, HERE.)
Why doesn't everyone have an advance care directive? Beats me! Maybe they are as irrational and ignorant on the subject as Sarah Palin seems to be. I can understand, on one level. Nobody likes to think of themselves as comatose or critically injured and unconscious. Nobody finds it pleasant to think of the worst case scenarios, do we? But in real life, all it takes is one driver talking on a cell phone to swerve into our lane, and the worst case scenario happens.
Terri Sciavo was in her 20's, healthy, and gainfully employed when she collapsed on the floor of her home with respiratory and cardiac arrest. Fifty years ago, she would have died on the spot, but thanks to modern medical intervention her life was saved. However, she was left in persistent vegetative state. Her husband wanted her taken off life support so that she could be allowed to die naturally. Her parents thought that she was conscious and aware, and they wanted everything done to prolong her life. Her family was torn apart. The two "sides" litigated her case in federal and state courts, and in the legislatures and the press for seven agonizing years. If only this young healthy woman had executed an advance directive when she were able!
In my experience as a lawyer, it is very difficult to get people to face these questions head on. Even in my own family, there are those who equate creating a will or discussing end of life issues with death itself. Even in my own family, there are those who have procrastinated for no good reason. It makes me want to shake them! Do such people think that if they make no preparation for a storm that it will somehow turn the other way?
Yes, it's hard enough to prod people to THINK about the worst case scenario types of circumstances that lead to a need for activation of a Health Care Powers of Attorney, or that would lead to probate of their Will. Unfortunately, death is inevitable and disability is almost a near certainty, especially right at the end. Procrastination only invites tragedy, because when a crisis actually hits, the opportunity for advance planning has slipped away. That's when you leave your next of kin saddled with questions and doubts about whether their decisions match what you would have wanted for yourself. Or worse, when someone you would not have chosen -- perhaps even a complete stranger -- is appointed as your guardian to make the decisions for you.
As now, as if there weren't already enough mental barriers, the Rabid Right Wing Religious Radicals act like Chicken Little running around exclaiming that "the sky is falling," using this as an excuse to insinuate that mere discussion of these decisions is equivalent to advocating euthanasia!!! The Chicken Littles of the world -- the extremists who view advance directives as standing on the brink of the slippery slope that leads to mass euthanasia -- argue that if government is interested in cutting costs then by definition a government-paid person will push people to sign on for voluntary euthanasia.
This is preposterous. What leads them to think your family doctor is signing on as a secret agent for an evil, vile government? What kinds of villains do they think actually work in government, anyway? Surely not people who live next door to you, who shop in your grocery store and attend your place of worship? Surely not people whom you elected to office? Perhaps they are thinking, instead, of people who have the same lack of morality or regard for truth that they exhibit when they make these outrageous claims.
As a Christian I can hardly express how deeply offended I am at the far right for this sort exaggeration and fear mongering. Indeed, it makes me almost embarrassed to refer to myself as a Christian, out of fear that I might somehow be associated with such insane viewpoints.
I hope that everyone reading this will understand that they have a need for a HCPOA and will take time to create one if they don't already have one. While I must insist on the disclaimer that this blog does not give legal advice and certainly does NOT create an attorney client relationship, you may CLICK HERE for a free link to a Health Care Power of Attorney form designed for use in the State of South Carolina. (To be valid, this form MUST be filled out, then executed in front of a notary and witnessed by two witnesses.) For a similar form for your state, Google for the term "Health Care Power of Attorney" and list your state in the google search. Even if you do not execute a document with formality so that it is legally binding, I also suggest that you print out a copy, think in advance and express your preferences about the decisions it asks you to make, designate a person who you trust to make decisions in the event of your incapacity. Last but not least, discuss your preferences with that person, and tell others in your family who your health care proxy is (so they know who to call in the event of a crisis and so that the person who is your proxy will know what your preferences are).
Finally, I am not alone in my outrage about these absurd factual assertions. The claim that the Health Care Bill would result in euthanasia has been called a "pants on fire" lie by the site Politifact, a nonpartisan fact checking service run by the St. Petersburg Times newspaper, which ascertains the truthfulness of campaign and political statements. Politifact states: "[A]nother statement making the rounds . . . says that health care reform would mandate counseling for seniors on how to end their lives sooner. We rated this claim Pants on Fire! The truth is that the health bill allows Medicare, for the first time, to pay for doctors' appointments for patients to discuss living wills and other end-of-life issues with their physicians. These types of appointments are completely optional, and AARP supports the measure."
The Religious Right should be ashamed for fear mongering which takes one splinter of fact (discussion about end of life decisions) and attempts to build that into a case that the government will force euthanization of Seniors by death panels. I will write later about what an extreme lack of faith this deliberate fear mongering demonstrates: lack of faith in the democratic process, lack of faith in fellow men, and lack of faith in God. I truly feel sorry for anyone with such a paranoid and limited world view. But I am angry that they would seek to impose that view on me, by undermining the democratic process by use of a deliberate campaign of misinformation. Let's call it what it is: LIES.
Have faith. The world is not coming to an end. But think about your preferences for care in the event you are incapacitated. Some day, hopefully not in the near future, each of us faces the possibility that we may not be able to speak for ourselves. Do everyone a favor, especially yourself, and execute an Advance Directive document today.
*This blog post is in reference to an article in Christianity Today as well as to articles appearing in the Washington Post. To verify my facts I also read the pertinent provisions of the Health Care Act currently proposed before Congress.