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August 17th, 2009
Freethought San Marcos: Palin’s ‘death panels’ delusions and the reality of advance directives

Freethought San Marcos: A column
by LAMAR W. HANKINS

As anyone who has kept up with the news this past week knows, former Alaska Gov. Sarah Palin posted on her Facebook page that President Obama’s health care reform proposal would create a “death panel” that would deny care to elderly and handicapped Americans.

Palin wrote further, “The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama’s ‘death panel’ so his bureaucrats can decide, based on a subjective judgment of their ‘level of productivity in society,’ whether they are worthy of health care. … Such a system is downright evil.”

First, Obama has proposed no legislation on health care reform. He supports reform, but has allowed the Congress to write the legislation. What Palin appears concerned about is a provision in the leading House version of health care reform legislation that authorizes Medicare to pay doctors for counseling patients about end-of-life care, if the patient wants to talk about it.

Such discussions usually center on three legal documents, identified in most states as advance directives. One form (called a Directive to Physicians, Family and Surrogates in Texas) allows mentally competent persons to decide what sort of medical interventions are appropriate for them if they are faced with certain medical conditions. This form is sometimes termed a Living Will.

A second form provides for the appointment of a medical agent to make medical decisions for a person if that person should become unable to make such decisions. This form is called a Medical Power of Attorney in Texas, and is termed a Durable Power of Attorney for Health Care, or something similar, in other states.

The third form, which must be ordered by a physician in Texas at the request of a patient or medical agent is the Do Not Resuscitate (DNR) order. This order can be used in a hospital setting or out of the hospital, in which case it is termed an out-of-hospital do not resuscitate order (OOHDNR). This order provides that if a person’s heart stops beating, no efforts should be made to revive the person. This decision is made by the patient, with the doctor’s agreement.

Directives about life-sustaining medical treatment were first proposed and promoted in this country in the 1930s, but did not begin to fully develop until the 1960s, and were boosted by the Karen Ann Quinlan case, decided in 1976. Quinlan, at age 21, became unconscious for reasons never conclusively determined and was in a persistent vegetative state, unable to make medical decisions for herself. She had been placed on a ventilator. Her parents, devout Catholics, wanted to stop the extraordinary intervention and let nature take its course. A lawsuit ensued and was finally decided by the New Jersey Supreme Court in favor of her parents’ right to make medical decisions for her, since she was unable to do so herself and she had no advance directive naming a medical proxy. Karen was weaned from the ventilator, was able to breathe on her own, and died nine years later in a nursing home.

The Nancy Cruzan case, decided by the US Supreme Court in 1990, made clearer the law on end-of-life care, recognizing important rights. Cruzan, age 25, was injured in a car accident in Missouri and drifted into a persistent vegetative state. She was provided artificial nutrition and fluids through a gastrostomy tube (commonly called a feeding tube). After 4 and 1/2 years, her parents sought to have the tube removed through a court order. After a hearing and an appeal, the case was heard by the US Supreme Court, which held that in the absence of an advance directive, a person’s wishes about medical treatment, including receiving artificial nutrition and fluids, must be proved by “clear and convincing evidence.” The court recognized a constitutional right of an individual to make decisions about life-sustaining medical treatment and held that that right did not end if the person became incompetent.

After another court hearing in Missouri, that court found that there was “clear and convincing evidence” that Nancy Cruzan would not want to be fed permanently through a gastrostomy tube. The tube was removed, and Nancy Cruzan died twelve days later, nine years after her accident.

These rulings confirm that we all have the constitutional right to decide the kind of health-care treatment we want before we need it, and to appoint a surrogate to make health-care decisions for us if we become incapable of making them ourselves.

While both the Quinlan and Cruzan cases clarified the law on end-of-life care, they also illustrate the tragedy of not having end-of-life medical care plans. Most people would not want to spend years in a persistent vegetative state or suffering from other conditions that make life impossible to enjoy and participate in when all medical treatments are futile to restore them to functioning human beings. But whatever your feelings about these matters, advance directives give all mentally competent adults a way to make their views known about these medical issues before they confront a serious medical problem. Such decisions are in the control of each individual who uses advance directives.

The appointment of a medical agent or proxy was first legislated in this country by Delaware in 1982. Most states now provide statutory forms for both Directives to Physicians and Medical Powers of Attorney, but those forms may be expanded and revised to reflect a person’s precise wishes about medical care in the future, or a person may draft their own directive if the state directive is not to their liking.

In “Perspectives on Death and Dying,” (the source of much of the history of advance directives for this column) authors Gere Fulton and Eileen Metress explain the importance of advance directives.

First, they help ensure that your wishes concerning treatment options will be respected. Second, they protect your family members, health care professionals, and others from the stress and potential conflict of making critical decisions without sufficient information concerning your wishes if you are incompetent.

The federal Patient Self-Determination Act was signed into law in 1990 by President George H. W. Bush. It requires all health care facilities and programs serving Medicare and Medicaid patients to establish written policies and procedures to determine their patients’ wishes about end-of-life care and to make sure these wishes are honored. Such facilities and programs must also implement ways to educate their staff and community about advance directives. This is why most hospital patients are asked if they have advance directives when they enter the hospital.

The Secretary of Health and Human Services was required by the law to develop a national campaign to educate the public about advance directives. While the success of these efforts can be questioned–researchers report that only 30% of adults had advance directives in 2005–the history of advance directives shows that they are not a new phenomenon.

Fifteen years ago, my parents, then in their 70s, wrote me and enclosed a clipping from a newspaper column about advance directives. They asked if I could get them some copies to fill out. By then, I had been promoting advance directives as a volunteer with the Austin Memorial & Burial Information Society (AMBIS) for about three years and had given out hundreds of copies to people in the Austin area. I sent my parents copies, which they completed with the appropriate attestation of witnesses.

What the most prominent of the current House bills to reform health care calls for is for physicians to give patients an opportunity to discuss advance directives with them at least once every five years. When they do so, Medicare will reimburse the physician for the consultation, something not now being done. Instead of relying on a newspaper column to pass along this vital information, every physician will be paid to counsel patients about advance directives and how they can be used to help patients have their health care choices at the end of life honored. And no patient is required by the legislation to complete any advance directive.

This proposal is nowhere close to the “death panels” to which Palin referred on her Facebook page. The reckless fear-mongering being engaged in by those who oppose access to affordable, comprehensive health insurance for all Americans (including Sen. Chuck Grassley, Newt Gingrich, and others) should be condemned by all fair-minded, thoughtful citizens.

Boston University political historian Thomas Whalen described Palin’s statement about end-of-life counseling as “the most irresponsible statement a politician has made in decades. It worries me and should worry all Americans. What was said is a complete fabrication, and it’s scaring elderly people.”

The provision for counseling on end-of-life care is supported by the American Medical Association, the National Hospice and Palliative Care Organization, Consumers Union (the publisher of Consumer Reports) and the AARP, among other widely respected organizations.

Copies of advance directives can be obtained free from hospitals, hospices, many doctors, some social workers and attorneys, and are available on-line at many sites, including the AMBIS Web site here. It is wise to discuss them with someone you trust (a knowledgeable family member, doctor, lawyer, social worker, nurse, patient advocate, friend), and complete them only when you are satisfied that they reflect your health-care wishes.

© Freethought San Marcos, Lamar W. Hankins

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9 thoughts on “Freethought San Marcos: Palin’s ‘death panels’ delusions and the reality of advance directives

  1. Oh my gosh. I just realized that my mother’s “death panel” was over this morning. Paid by your, hers and my tax dollars through Medicare. Hmm. They were very caring and compassionate. Maybe a ruse, Madam Palin?

    They discussed her wishes and how to live out her remaining days with less pain due to drugs that might shorten her life in the long run but relieve her of great pain and anxiety. They are called “Hospice”. They exist already.

    Clearly an ongoing conspiracy to end the lives of the elderly through kindness that will only get worse through the Obama plan!

    Rise up America. Stop the madness of compassionate care!

  2. Not to be critical, but isn’t there anything noteworthy going on in Hays County to write about?

  3. To Ted:

    I am sure there is, but I write about what is of interest to me, whether it is local, state, or national in scope. Since I know something about advance directives, I chose to share some of that information in the hope that I could encourage a few others to see the value in doing some advance care planning at the local level. What is going on at the national level was just a springboard to pass along what should be relevant information for every adult, whatever the age. Note that both Cruzan and Quinlan were in their 20s.

  4. Very well written, sir. I like the fact that your essay is written very professionally, much like an objective social science report. And you did your homework well. Unfortunately, the average American does not like research, and can’t be bothered with the facts. And certainly, Palin represents the average American well in that regard. Keep up the good work, and I’ll pass your article along.

  5. Hawaii Wahine

    Well of course they are the same as hospice, so WHAT is BHO doing promoting them as HIS agenda? If it’s NOT broke then we need to tell the little Hawaiian cum Kenya boy that it does NOT need to be fixed!

    The difference in his proposition and what we already have is that HIS doctors can elect to BYPASS the Hippocratic Oath and instead promote the idea of “death with dignity”; the apparent intent of this addition to BHO’s “health-bill” is to SAVE MONEY on care for the terminally ill, as theirs is the most expensive aspect of our current health care system.

    Life is a malady, for which death is the only cure?

  6. LAMAR W. HANKINS

    Too DUH to pay attention?

    First, Obama’s party and yokel ADMINISTRATION has proposed legislation on health care reform. He supports reform, but has PROMPTED Congress to write the legislation.

    IF the provision that GOVERNOR Palin (she can STILL use that title the same way that FORMER President Billy-goat Clinton uses President)
    WAS concerned about was NOT suspect, then WHY did the MORONIC Democrats REMOVE it from the BILL?

    Sarah’s RIGHT, but you are WRONG!

  7. While anyone can choose to die intestate, can choose to not have a Living Will, and can choose to not have a Medical Power of Attorney, it certainly reflects badly on their common sense and their lack of consideration for their loved ones. The documents I mentioned are cheap to produce – cheap both in cost and the time needed to get them done.

  8. By invoking the Counseling provision of the Obama health plan, Lamar is setting up a straw man which he can easily defend from the accusation that it is a “death panel”. That argument is currently the darling of the MSM because it is easy to use to confuse us poor dumb citizens. The real “death panel” is the FCCCER (what a poor name) group which is specified in the Obama plan. The FCCCER will supervises various Health Benefits Advisory Councils who will implement specific health directives issued by FCCCER.

    The Federal Council on Comparative Effectiveness Research is a misnomer. This is the newest group that has already been established and funded by the Obama administration. This group will set the over all policy for the clerks to follow when deciding who lives and who dies. You should note that the Obama plan has no provisions for due process. At least you can sue your health inssurance company.

    “Those advocating for President Obama’s health care reform label concerns about rationing of care and denial of care to the elderly and disabled as irrational and the product of fear mongering. However, if you read the work of Dr. Ezekiel Emanuel, who is the health-policy advisor at the White House Office of Management and Budget (OMB) and a member of the Federal Council on Comparative Effectiveness Research (FCCCER) and also the brother of the President’s Chief of Staff Rahm Emanuel, these concerns seem very reasonable indeed. The current legislation does not specify medical treatments to be covered. Rather, it delegates these decisions to a Health Benefits Advisory Council. This panel is advised by the FCCCER. That is why the ideology of Dr. Emanuel is very relevant to concerns about rationing of health care.”

    Some of the members of the FCCCER. Meet your executioner.

    Neera Tanden, J.D.
    Counselor
    Office of the Secretary, HHS

    Neera Tanden is currently the Counselor for Health Reform at HHS, where she is working on the President’s health care reform plan and helping formulate the department’s response to reform efforts. She is also working on the Department’s interagency Comparative Effectiveness Subgroup as part of the American Recovery and Reinvestment Act, which is focused on maximizing the effectiveness of the Congress’ $1.1 billion investment in funding. Prior to that she was the Director of Domestic Policy for the Obama Biden Presidential Campaign, where she ran point on the campaign’s major initiative on health care, as well as other domestic issues. Before that, Tanden served as Policy Director for the Hillary Clinton Presidential Campaign where she directed all policy work, ranging from domestic to economic to foreign affairs. She previously served as Senator Clinton’s Legislative Director, where she oversaw health care policy, including the Senator’s health care quality legislation and comparative effectiveness proposals. She was formerly Senior Vice President for Domestic Policy at the Center for American Progress, as well as Senior Vice President for Academic Affairs, where she worked on the Center’s proposals for universal health care and health care quality. Tanden received her Bachelor of Science degree at UCLA and received her J.D. from Yale Law School.

    Ezekiel J. Emanuel, MD, PhD
    Special Advisor for Health Policy
    Office of Management and Budget

    Ezekiel J. Emanuel, the Chair of the Clinical Center Department of Bioethics at the National Institutes of Health, is currently serving as a Special Advisor on Health Policy to the Director of the Office of Management and Budget. After completing Amherst College, he received his M.Sc. from Oxford University in Biochemistry. He received his M.D. from Harvard Medical School and his Ph.D. in political philosophy from Harvard University. His dissertation received the Toppan Award for the finest political science dissertation of the year. After completing his internship and residency in internal medicine at Boston’s Beth Israel Hospital and his oncology fellowship at the Dana-Farber Cancer Institute, he joined the faculty at the Dana-Farber Cancer Institute. Dr. Emanuel was an Associate Professor at Harvard Medical School before joining the National Institutes of Health. Dr. Emanuel has authored 3 books and co-edited 4. He developed The Medical Directive, a comprehensive living will that has been endorsed by Consumer Reports on Health, the New York Times, Wall Street Journal, and many other publications. He has published widely on the ethics of clinical research, health care reform, international research ethics, end of life care issues, euthanasia, the ethics of managed care, and the physician-patient relationship in the New England Journal of Medicine, The Lancet, JAMA, and many other medical journals.

    Never believe much of what the government tells you. Look to how laws will be implemented and abused. The natural tendency of all governments is to gather more power. The Obama national health proposal maybe what we want to do but we need to go into it with our eyes wide open. Will the government, at some point start to decide who gets what in medical care. Everyone but a true believer like Lamar knows that is true. Maybe that is the way we need to go but lets slow down and understand this beast and the way things will really be after it is in place.

  9. To charles Sims:

    Just to be clear, I did not set up a straw man argument. I used a misinterpretation being made by the opponents of health insurance reform of one provision in one of the several health reform bills to show what its purpose actually is. If I had made up Palin’s (or Grassley’s) misinterpretation in order to refute it, that would be a straw man argument.

    I have expressed my disappointment with many of Obama’s appointees, so I share your concern about many of the people working in his administration.

    As to the Federal Council on Comparative Effectiveness Research, its purpose is to study which medical treatments are most effective and disseminate this information to physicians. While such research has been done for the last 30 years, there has never been an effective mechanism for distributing the results to most physicians. This is a worthwhile innovation. I would prefer that my doctor not give me treatments that are not effective or useful for whatever condition I might have.

    Finally, whatever I may be, I am not a true believer in anything but skepticism. There is little, if any, evidence that the government has interfered with medical decisions in Canada or in other countries that have single-payer systems, or in England, a true socialized medicine system. Stephen Hawking, the British theoretical physicist who suffers from neuro muscular dystrophy, a condition that has progressed over the years and has left him almost completely paralyzed, attributes the fact that he is still alive to the British medical system.

    In the US, we have voluntary euthanasia in only three states. There is little chance that we will progress to forced euthanasia by government edict. Suggestions to the contrary are worse than idle speculation at this point. I will be keeping a skeptical eye out for any such signs that the government will be deciding my medical treatment. However, I am already aware of hundreds of examples of private health insurance companies refusing to pay for life-saving medical care. At this point, I am more concerned about the control of the corporations over my life than I am the control of government, though I have often opposed government intrusions on liberty and personal autonomy, as anyone who has read my columns for the last several years in both the Record and the Mercury would know.

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