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. HankinsEmail | Print