Curing vs Healing In Medicine, and In Law

Tonight I found myself reading a blog post in which the author Laura, a person undergoing extensive medical treatment for a serious illness, discusses insight she gained from a workshop for persons undergoing health challenges.  One of the main insights she gained was a new perspective on the difference between "curing" and "healing."* Laura writes:

The Politicization of Environmental Concerns

⁷ “But ask the animals, and they will teach you, or the birds in the sky, and they will tell you; ⁸ or speak to the earth, and it will teach you, or let the fish in the sea inform you. ⁹ Which of all these does not know that the hand of the LORD has done this?  ¹⁰ In his hand is the life of every creature  and the breath of all mankind.  ¹¹ Does not the ear test words as the tongue tastes food? ¹² Is not wisdom found among the aged? Does not long life bring understanding?

Job Ch. 12

Justice and Peace Shall Kiss

“love and faithfulness meet each other;

justice and peace kiss each other”

(Psalm 85:10)

The concepts of peace and justice are closely connected. The Rev. Martin Luther King, Jr. famously once said, “Without justice, there can be no peace.” 

A Bad Day in Mediation is Better Than a Good Day In Litigation! (Part 1)

Occasionally, things happen that remind me I am not perfect.  Today was one of those days.   At the dinner table one night recently, I made some snide comment about some celebrity personality featured in the news.  My daughter gave one of those exasperated replies, “Mom!”  When I looked at her with a questioning look she said, “You’re supposed to be a MEDIATOR!” 
The heart of mediation is to be able to help warring parties see the other side, to instill a bit of communication and compassion.  Obviously, I was not speaking in a way that would facilitate either communication or compassion.   Falling short.
Compassion.  Ah.  The challenge.  The challenge of putting myself into the other person’s experience, to be fully present for them, and to help them communicate and find ways of having their needs understood and met in situations involving conflict.  Fully present means to really listen, to really attend to what someone is saying.  Fully present means to see that party to a conflict as valuable for who they are, to hear and grasp the full meaning of their story and what they are trying to communicate.   For when communication is fully facilitated, most often people begin to understand more what the conflict is really about and then to be able to work together to find ways to meet the most basic needs of each.  Sometimes, it is truly just about numbers or just about compromise.  But most of the time, actually, the parties in my practice actually do engage in what we call “conflict transformation”. 
What is “conflict transformation,” you ask? 
By hearing each other fully, parties are enabled to transform the way they experience and respond to conflict.   When parties to a conflict are able to see and hear each other fully, and even to understand themselves better, they are often able to get beyond the superficial and the posturing, to address much deeper needs.  Often there really is a transformation – an “aha” moment --  that opens the floodgates of understanding, paves the way for change, and makes the idea merely of “compromise” or “settlement” seem trite.  The conflict can then be addressed at a much deeper, and more satisfying, level. 
Yes, the mediator is needed.  People can’t really get beyond it themselves. 
When communication has broken down between parties, when they are mired in their own un-articulated feelings and anxieties and needs. When anger is swirling like a cloud and past hurts invade memories like Trojan horse warriors, the presence of a mediator is essential.  Fully present for each person, I act as a bridge and as a facilitator. 
Yes, sometimes I fall short of that goal, as my daughter reminds me.  But even when it’s not perfect, when I fall short, I still think mediation is better than the alternatives!    
But remember how they say, “a bad day fishing is better than a good day at the office”?  Well, here’s another one:

A bad day in mediation is better than a good day in litigation! 

Have you ever been in litigation? 

To the participants, it’s extremely disempowering.  As soon as the case is turned over to the lawyer, the party loses control.  It’s not the lawyer’s fault, it’s because of the way the system operates.  Now that you are in litigation mode, everything you say could be misconstrued or used against you.  Therefore, all communication must be delegated to the lawyers. The lawyers decide how to use each piece of information to their strategic advantage.  The lawyers research and are governed by “the law,” which is really nothing more than a standard someone set as being fair in another case somewhere else, which may or may not bear close resemblance to your case.  There is no more opportunity for genuine communication, for healing, for working out truly win-win solutions.  The lawyers think in terms of solutions a court could impose, which are relatively limited.   Courts can order money damage and “specific performance” of some tasks, not much more.  Gone is the opportunity for solutions that come from the heart.  Not to mention, all of this lawyering costs money.  For each action of your lawyer, there is an opposite reaction from the other lawyer, and so on.  So costs escalate.  The lawyers love to score points by surprising the other side.  That doesn’t build relationships, either.   And then, there’s the worst part.  You don’t really know in advance what the judge will do.  Somebody will “win,” and somebody will “lose”.  Will it be you?  What will a total stranger decide about your case, based on a bit of information that passed through the gamesmanship called “rules of evidence”?   Could that lack of certainty be the reason people in litigation don’t sleep well at night, for months on end?  And when the gavel does fall, feelings are not resolved.  Instead, all that has happened is that the lid has been nailed down on the coffin of the conflict.  Feelings and needs have not been communicated.  Underlying needs and concerns have not been addressed.  But there is “resolution”.  People are not killing each other.  It’s better than nothing.  But still, I say …

A BAD DAY IN MEDIATION, IS BETTER THAN A GOOD DAY IN LITIGATION! 

This winter sunrise photo was taken by my daughter.  The symbolism, for me, is that even on a bleak, cold, winter day, there is still beauty in a new sunrise, in a new opportunity, and a new beginning.

Register Now for September 23rd–25th Conference!

 

RESTORING COMMUNITY IN A BROKEN WORLD

A Peacebuilding Conference September 23 – 25, 2011

Racial reconciliation, tribal warfare, conflicted congregations, crime victims, shell shocked soldiers, and family feuds -- what do all these have in common?

A need for healing

Come learn some explicit approaches and techniques that will help professionals and lay people alike as they seek to build community and restore a sense of wholeness to individuals, families, and churches in need of reconciliation.

Friday evening, Saturday all day workshops, and Sunday morning worship includes two meals together (Attendees may register for Saturday only).

Professional Continuing Education Credit will be available for Attorneys, Licensed Professional Social Workers, and Clinical Psychologists, for a nominal fee.

Nonviolent Communication: The Rev. Theresa Latini (Luther Seminary), a Presbyterian pastor and certified trainer in NVC, will introduce the basic concepts of this method of communicating that will improve every aspect of your interpersonal relationships.

Restorative Circles: Mikhail Lyubansky, who has studied Restorative Circles with internationally known Dominic Barter, will introduce the theory and method of this community-owned restorative practice that was developed by Barter and his associates in the favelas of Brazil.

STAR Model of Trauma Healing: Elaine Zook Barge, Director for Strategies for Trauma Awareness and Resilience at the Center for Justice and Peacebuilding at Eastern Mennonite University, will introduce participants to the STAR method for trauma healing

Greensboro Truth and Reconciliation Commission: The Rev. Nelson Johnson and the Rev. Joyce Johnson will share their experience with the Greensboro Massacre and the resulting Truth and Reconciliation Commission they founded which has now won international recognition and awards.

The work of the Presbyterian Church in Sudan: The Rev. Peter Tibi, a Visiting International Peacemaker of the Presbyterian Church, will share his work among tribal warriors in South Sudan, the world’s newest country.

SPONSORED BY THE PEACEMAKING COMMITTEE FOR TRINITY PRESBYTERY

REGISTER ONLINE  HERE

Social Media for Lawyers: An Ethics Primer

Caveats and disclaimers:  Since I’m a blogger and an attorney, I’m interested in this stuff.  It’s only relevant to attorneys.  I compiled this for my own use and am now sharing it.  To my fellow lawyers: Of course this is just a beginning of the conversation about what is permissible and not, use it as a starting point for your own research.  Please give appropriate credit if you do use it in later written materials! 

THE GENERAL RULE:  “WHEN IN DOUBT, LEAVE IT OUT”

ADVERTISING

Warning area: web site, blog, Facebook, tweets, Craigslist, everything

Issue:  Is this communication commercial speech?  If not, the state does not have authority to regulate it. If it is commercial speech, the rules of professional conduct apply. Commercial speech is that which beckons business or proposes a commercial transaction.  What if the content does not beckon business, but the purpose of the communication is to attract clients? 

Texans Against Censorship, Inc. v. State Bar of Texas, 888 F.Supp. 1328 (E.D. Tex. 1995), afd 100 F.3d 953 (5th Cir. 1996)(lawyer who ran newspaper advertisement expressing opinion about method of judicial selection was not engaged in commercial speech even though his intent was to generate clients); Stern v. Bluestone , 12 N.Y. 3rd 873 (2009)(even though there is an incidental effect of increasing clients, look at content of communication to see if proposes commercial transaction; http://www.nyls.edu/user_files/1/3/4/30/84/85/114/135/12%20N.Y.3d%20873%20Stern%20v.%20Bluestone.pdf, accessed October 18, 2010). 

The main criteria is whether the communication is intended for sharing of information or whether it is promotional in nature.  Does the communication beckon business?  If so, it is advertisement. 

Rule 7.2 et seq.

Rule 7.2 (b) If it’s an advertisement, a copy must be filed with the Commission on Lawyer Conduct. 

According to ABA recording linked below, courts do not distinguish between “blog” portion of web site and “home page” portion of web site. 

SOLICITATION

Warning area: Directory sites, blogging, tweeting. 

Issue:  Any real time communication with people who are not clients should be considered carefully with the question in mind, “is this communication an attempt to solicit clients, motivated by pecuniary gain?”  Secondary issue:  has the prospective client invited the communication?

Rule 7.3, Communication with prospective clients

Rule 7.3(c) requires every written or recorded communication soliciting employment be filed with the Commission on Lawyer Conduct and certain information to be kept on file for two years

Imagine a person posts a tweet: “Just got released from Richland County jail, need atty fast.” Would it violate Rule 7.3 for an attorney to respond to that tweet? What if it mentioned being released from jail but did not solicit a response?

STATING A SPECIALIZATION

Warning area:  LinkedIn has a box for “specialty”

Issue:  Limits on ways lawyers may describe their areas of practice and expertise

Rule 7.4 regulates communication of fields of practice and specialization

Do not allow yourself to become inadvertently designated as a specialist on LinkedIn: Unless you are certified as a specialist by a state bar accredited authority in your jurisdiction, you should leave blank the LinkedIn profile field for “specialties”. Additionally, the “Answers” section in LinkedIn toolbar designates you as an “expert” after you’ve answered a certain number of questions and gotten positive responses. Therefore, avoid responding to questions in the official “Answers” section of LinkedIn. On the other hand, you can demonstrate knowledge and build relationships by answering questions in LinkedIn discussion groups, since there is no “best answer” or “Expert” designation in that area.

TESTIMONIALS

Warning area:  Directory sites, Endorsements, Ratings, Martindale Hubbell, Avvo

Issues: information that is non-verifiable, misleading, or stated without personal knowledge

Rule 7.1(c) (prohibits comparisons to other lawyers’ services, unless substantiated by verifiable objective data

Rule 7.1 (d) prohibits testimonials

Rule 7.2(c) prohibits giving anything of value in exchange for a recommendation

Rule 7.2(c) prohibits giving anything of value in exchange for a recommendation

S.C. Bar Ethics Opinion 09-10 (peer endorsements must meet all general ethics requirements related to solicitation and testimonials, http://www.scbar.org/member_resoucrces/ethics_advisory_opinions/&id=678 )

An attorney should prescreen recommendations on Linked-In before they get posted for public view.  Do not make reciprocal recommendations. Do not give anything of value to a non-lawyer for the soliciting prospective clients

FALSE OR MISLEADING INFORMATION

Warning areas: Directory sites, archiving sites, hiring ghost bloggers, gaining access to information through pretexting

Issues:  Anything that involves creating an appearance that we are something other than who we really are

Rule 7.1

Philadelphia Bar Assoc Advisory Opinion 2009-02 (ruled it was unethical for an attorney to use a third party to “friend” an adverse witness on Facebook in order to gain access to impeaching evidence, http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf).

Hiring a ghost blogger to fill your web site might arguably mislead clients into thinking that you are more knowledgeable than you really are

CLIENT CONFIDENTIALITY

Warning area:  Shared drafting and collaboration platforms such as Google Wave, Blogging, twitter, JD Supra, Foursquare, Facebook, Photos, and other geo-tagged communications.  It’s not just in the elevator anymore!  Anyone, anywhere could be eavesdropping on your electronic communications, and even your locale could give away important confidential information (e.g. alert client’s competitor to M&A activity if you sign into Yelp and rate a restaurant in city of acquisitions target).

Issues:  Disclosure of client information or failure to adequately protect; potential disclosure to third parties through copies or email forwarding

Rule 1.6

Rule 8.3

INADVERTENTLY CREATING ATTORNEY CLIENT RELATIONSHIP

Warning area:  Directory sites, blog comments sections, advice sites

Issue:  Attorney gives advice in an online forum.  Take care to phrase discussions in terms of offering general legal information rather than legal advice. 

Rule 1.4

Rule 1.16

Rule Rule 4.4

CONFLICTS OF INTEREST

Warning area:  emails or advice given over internet between people who have peripheral or scant relationship

UNAUTHORIZED PRACTICE OF LAW

Warning area:  Legal advice sites, blogging, web page, Facebook, twitter

Issue:  Geographic boundaries are non-existent online.  Take care not to establish attorney client relationship or give legal advice in distant jurisdictions. 

Individual state laws define what is the practice of law.  Have you read them all? 

FOR-FEE REFERRALS

Warning area:  Directory sites

Rule 7.2

and see also

Rule 1.7

Rule 1.8

Rule 5.4

EX PARTE  COMMUNICATIONS / EAR WHIGGING

Warning area:  Facebook, Linked-In, and other community sites where lawyers can “friend” judges

Issue:  Communication with a judge outside the scope of a case.  The informality and increased access of social media make it easier to engage in ex parte communication.  Think before you talk. 

Rule 3.5(b)prohibits ex parte communication

IMPROPER CONTACT WITH PARTIES

Warning area: Facebook, Twitter

Issue:  Lawyer “friends” a defendant or communicates with a witness

Rule 3.5 (b)

Rule 3.5 (c)

DUTY TO PRESERVE EVIDENCE

Warning areas:  Facebook

Duty to preserve evidence and avoid spoliation likely applies to communications via social media whenever litigation seems likely

Rule

SECONDARY SOURCES:

ABA Division for Media Relations and Communication Service, “Beyond the Ethics of Web 2.0 – What’s Now, What’s Next, What If” (audio) http://www.abanow.org/2010/04/beyond-the-ethics-of-web-2-0-whats-now-whats-next-what-if/?audio (accessed October 18, 2010)

Bottom Line Law Group, “Ethics Tips for Lawyers Using Social Media” (accessed October 18, 2010)

Bruce, Deborah, “12 Social Media Ethics Issues For Lawyers,” http://solopracticeuniversity.com/2010/03/11/a-dozen-social-media-ethics-issues-for-lawyers/ (accessed October 18, 2010).

Burgus, Laura, “Top 5 Social Media Ethics Concerns for Lawyers” http://lawyerist.com/social-media-ethics-lawyers-top-5/ (accessed October 18, 2010)

Elefant, Carolyn, and Nicole Black. Social Media for Lawyers: the next Frontier. [Chicago, Ill.]: ABA Law Practice Management Section, 2010. Print.

Wall Street Journal Digital Network, “Q&A: Lawyers, Ethics and Social Networking”  http://blogs.wsj.com/digits/2010/03/19/qa-lawyers-ethics-and-social-networking/tab/article/ (accessed October 18, 2010)

 

Technorati Tags: lawyer advertising,attorney ethics,legal ethics

Interdisciplinary Collaborative Divorce: Is It Right For Me?

You may have heard of a new way of doing divorce, called "interdisciplinary collaborative divorce". This article describes what collaborative divorce is, how it works, why it is better for most divorcing couples, and the few cases in which it is not appropriate.

WHAT IT IS

Collaborative Divorce means divorce without adversarial litigation. This does not mean it is a divorce without argument and disagreement. You do not need to be wearing a halo to qualify. What you do need to do, ahead of time, is to agree not to go to court. That's right. You make a 100% commitment to stay at the bargaining table with your ex-spouse until everything is worked out.

How is this enforced? Through an agreement everyone signs ahead of time, stating that if either party goes to court, all professionals involved in the case will resign. This ensures that every professional in the case will be 100% devoted to helping you resolve your dispute without resort to litigation. No one will be bargaining with their fingers crossed behind their backs.

In a traditional divorce, the proceedings are viewed like a battle, with each party hiring a gladiator to go to war on their behalf. Collaborative Divorce is different. Neither party is seen as "evil" or as an "opponent" on a battlefield. The problem, rather, is to find ways to disentangle the couple's lives in ways that leave as little damage as possible and to enable them to continue to work together to parent (and grandparent) their children.

Removing adversarial litigation from the range of options keeps matters within the control of the divorcing couple, and it opens up more creative possibilities for addressing conflict. There is a saying that when the only tool you have is a hammer, the whole world looks like a nail. Litigation is like a hammer. It is but one tool out of many that can be used to resolve disputes. When the hammer is removed from the conflict resolution professional's toolbox, a wide variety of other tools are used to take its place. Drills and screwdrivers come out of the closet, jigsaws take the place of saber saws, and solutions are carefully custom tailored to fit the parties' needs more exactly than could be done with a hammer.

How? Through use of Interest Based Negotiation and through use of a network of neutral collaborative professionals who apply their expertise to help the divorcing couple.

HOW IT WORKS

In Collaborative Divorce, each party chooses his or her own attorney to represent and guide that party through the process. The first meeting between parties and each of their attorneys is called a "Four Way Meeting". At this meeting, the issues and needs are discussed. Then, the parties and their attorneys decide what other professionals -- all neutral, collaboratively trained professionals, as well -- will be utilized to assist in resolution of the case. Accountants, child specialists, divorce coaches, appraisers, vocational rehab experts, may all be used depending on the needs of the parties. In a litigated divorce, resources are first put into the "Discovery" process (Interrogatories, Requests to Admit, and Depositions) to obtain information. In collaborative divorce, the parties agree to full disclosure and then put their resources into obtaining the neutral, professional help they both need to secure a fair outcome.

Once the facts are all on the table, the parties are able to engage in interest-based negotiation to work out solutions that are fair and meet the true needs of both sides. The goal of interest based negotiation is to enable the true needs and interests of the parties to be met. Parties remain in complete control of their agreement and can tailor it to reflect both their unique situation and their individual values and priorities.

WHAT MAKES IT BETTER?

Put simply, Collaborative Divorce invests in the family rather than in conflict. Instead of pouring precious family resources into litigation which builds walls and fences, private decisions are kept private, and resources are poured into solutions that help the family, such as a financial plan, a parenting plan, career planning, and fair division of assets. Studies show that couples are generally happier with collaborative divorce, that collaborative divorce is significantly less expensive than litigated divorce, and that all but a small fraction of cases do settle through the collaborative process.

WHEN IS COLLABORATIVE DIVORCE NOT APPROPRIATE?

Collaborative Divorce requires a commitment to fairness and full disclosure. If either party is not so committed, the force of the law may be needed. Any questions or concerns should be discussed more fully with your collaboratively trained attorney before making the decision to engage in a Collaborative Divorce.

HOW CAN I LEARN MORE?

Learn more about collaborative divorce, and locate collaboratively certified professionals, through the web site of the International Academy of Collaborative Professionals.   The author of this blog is a collaborative professional who represents parties in collaborative divorce.  For more information, you may also refer to her professional web site, Just Mediation, LLC. 

Recommended book: "A Is For Asshole" by Vickie Pynchon

I'd like to highlight a review of a book written by my friend Vickie Pynchon. This book is easy to read and very helpful when it comes to dealing with conflict. Highly recommended. click HERE for a more extensive review by mediator Joe Markowitz, and click HERE for a more extensive review by Tammi Lenski.  The bottom line is, buy it. 

Long Term Care and Medicaid

An article in today's New York Times tells the story of a woman who was prompted to divorce her ailing husband in order to keep from being bankrupted by his anticipated medical and long term care costs. 

Op-Ed Columnist

Until Medical Bills Do Us Part

By NICHOLAS D. KRISTOF

Published: August 30, 2009

Click HERE for story

 

Most people understand that long term care is incredibly expensive, but I don't think they realize just how expensive.  Think in terms of a general range of $60,000 - $100,000 per year, depending on location and services.  In 2008, the average cost for a private room in a nursing home was $76,285, and I use that number because the semi-private rate is not much less.  That's in today's dollars, not adjusted for inflation which will have occurred by the time you need the services. 

People also need to understand that Medicare does NOT pay the cost of long term care.  Let me repeat that: Medicare does not cover the cost of nursing home care.   In 2005, Americans paid $206 Billion for long term care, and amount that does not include any services provided by people who were unpaid such as family members.  

At the present time, Medicare (remember Medicare is not the same as Medicaid) will pay for a lifetime maximum of 100 days of rehabilitative stay in a long term care facility, with three key restrictions.  First, there's a copay of $133.50 per day.  Second, the placement must come after a hospital stay.  Not coming out of a hospital?  Then forget any reimbursement whatsoever from Medicare for in-patient therapy.  Third, the care must be rehabilitative in nature rather than merely care taking.  Not really a candidate for rehab?  Then too bad, so sad.  And after 100 days?  That's the end.  Medicare ain't gonna help you with any other long term care costs. 

Overall, 75% of Americans will need long term care in the future.  There are four ways to pay for costs of that care.  They are (1) out of pocket, (2) long term care insurance, (3) reverse mortgages, and (4) Medicaid. 

Over and over, I hear people using the term "Medicare" when what they really mean is "Medicaid".  Medicaid will pay a limited amount for long term care.  But indivuals are usually sadly misinformed about Medicaid, as well.  They generally have no idea what the real benefits and restrictions are for Medicaid, or what you have to do to qualify for Medicaid. 

To qualify for Medicaid, a person must spend down his or her own assets to poverty level.   And, fundamentally (this is only a broad brush summary), current Medicaid regulations do not allow the surviving spouse to keep enough assets to take care of themselves in their own old age.  This NY Times story tells of a woman who divorced her husband for the purpose of shielding enough assets to care for herself during her own lifetime. 

It is good that the story also mentions the (very important) Five-Year Lookback Rule.  Knowing that people will go to extreme measures to deliberately impoverish themselves in order to qualify for Medicaid, state Medicaid programs will examine all transactions you have undertaken in the last five years prior to your Medicaid application.  If the Medicaid auditors determine that a transaction was done for the purpose of qualifying for Medicaid, they will go after the asset so that it can be sold and proceeds used to reimburse the government for the cost of benefits it paid on your behalf. 

There are special trusts and things that can be done by legal specialists, but the bottom line is that if someone is trying to plan ahead to make themselves eligible for Medicaid, then it is extremely important that they  not wait until there is a need, and especially not until there is a crisis.  Better to do it now, before there is a need even on the horizon. 

You heard me right.  Exactly!  The time to think about this is NOW, when you are healthy and do not have any current need at all.  No matter what your age or health status -- even if you are 20 years old and in perfect health -- make an appointment today with your lawyer to discuss what documents you need to have in place so that your family will not be left destitute in case of a "worst case scenario".

MAKE THAT PHONE CALL!

I must add the disclaimer that this blog is for information only, is not intended to give legal advice or create an attorney client relationship, and it should not be relied on for legal or estate planning.  Consult the lawyer of your choice to learn current laws and to discuss your individual needs. 

Technorati Tags: medicare,medicaid,five year lookback rule,lookback,medicaid lookback,rehab

Death Panels: A Surrealist, Paranoid Fantasy of the Christian Right

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. 

 

Technorati Tags: health care reform,medical ethics,advance directives,health care power of attorney,death panels,euthanasia,religious right,truth in media,ethics

Nonviolent Resistance in Islamic Law

23 July 2009

I'm familiar with the teachings of nonviolence in Christianity and Buddhism, but until now the teachings of the Q'uran have been unknown to me. Of course we are all aware of the Islamic fundamentalists who believe in using violence to destroy a free society; but I've suspected those views are as extreme and heretical to mainstream Islamic teaching as the extreme right wing fundamentalists are to Christian doctrine.

Well, I may be correct. Here is an enlightening debate published by the (British) Law Society Gazette on the topic. Click to read: "Challenging Debates Remain on Islam and English Law" (July 23, 2009)

The article is more broadly about the challenges of whether English law ought to enforce or incorporate Islamic law in areas where without it the parties might not receive the protection to which they would otherwise be entitled, for instance when a husband in a Muslim polygamist marriage divorces his wife and she is left with no protection under English law. But a portion of the article includes discussion of nonviolence under Islamic law, and I will copy that here (in italics):

[The question was raised] "whether ‘moral or religious obligation’ could ever justify ‘the use of force inadmissible under secular law’.

Abdullahi An-Na’im, professor of law at Emory University, answered immediately with a resounding and unqualified ‘no’.

He acknowledged that his opposition to an unjust law might require ‘peaceful, non-violent dissent’ – for which he would accept the consequences. ‘But absolutely “no” to violence, regardless of whether the state
permits it.’"

So, my hunch is correct. Now for more study. Do you have comments to add or resources to recommend for further study? If so, please leave a note!