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HEALTH CARE SEPTEMBER 2, 2009

Dead Wrong

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As if you hadn’t heard, a gaggle of American conservatives is stridently charging that pending health care reform legislation will institute a mechanism for euthanizing selected members of the handicapped and elderly populations--that it would, in Sarah Palin’s formulation, establish “death panels.” It’s true that H.R. 3200, the bill that will eventually come before the House of Representatives, is still a work in progress. It has already been amended by three separate House committees, while two Senate committees are working on drafts of their own. All of the provisions to be included in the final bill are not yet known, but one thing is certain: There is not a single statement in the voluminous number of pages under study that contains the slightest consideration, no matter its remoteness, of death panels, euthanasia, or any such fearsome concept.

In reality, the legislation simply calls for the reimbursement of physicians who counsel patients on end-of-life decision-making--counseling that is already required by a 1990 law and that is now covered by many insurance plans. But the specifics of the present bill are irrelevant to the loony conversation the right has sparked during the August recess. After all, even if there were some provision before Congress that could conceivably be interpreted as establishing a “death panel,” centuries, if not millennia, of established medical ethics (in addition to existing U.S. law) would prevent its actualization. In the midst of this crucial debate on the future of health care, somehow, the proponents of the euthanasia talking point seem to have forgotten everything we know about the practice of medicine in America.

Even putting aside the Judeo-Christian morality upon which the Constitution and our nation’s culture are based, the notion of forced euthanasia would contradict the long-held body of medical ethics to which all American doctors must adhere. At times, morality can be dismissed as a matter of personal conscience, no matter how widespread its acceptance. Ethics, on the other hand, arises from societal or group commitments to principia of behavior. A formulated code of ethical precepts--whether philosophical, legal, or religious--is a statement of commitment that the group has a right to insist upon from its members, even to the point of punishing breaches.

Since its origin in the works authored by followers of Hippocratic teaching, the ethics of Western medicine have forbidden any action that might harm a patient, hence the famous injunction: “[H]ave two special objects in view with regard to disease, namely, to do good or to do no harm.” That principle has been reiterated again and again through the ages, as, for example, in the words of the Geneva Convention Code of Medical Ethics, adopted by the World Medical Association in 1949, which states, in part, “The health of my patient will be my first consideration,” and elsewhere, “I will maintain the utmost respect for human life . . . I will not use my medical knowledge contrary to the laws of humanity.” I know of no source that permits anything else.

Moreover, as the modern discipline of bioethics has evolved since the 1960s, there has been universal acceptance among its authorities of four principles that are considered fundamental: autonomy, beneficence, non-maleficence, and justice. The principle of autonomy, which refers to the autonomy of the patient, directs that every individual has the free-willed authority to make well-informed medical decisions for himself and that the physician must never dictate such decisions. In the words of a highly regarded textbook of bioethics, “This implies a respectful and broadly rational dialogue between doctor and patient, in order to combine the patient’s values and the doctor’s expertise to produce benefit. For this to happen, the patient and the doctor must be prepared to listen to each other, think about what is being said, and be responsible about their respective roles.” As for beneficence, non-maleficence (the “do no harm” of antiquity), and justice, the words speak for themselves. Death panels indeed! Euthanasia indeed!

The growing professional disciplines of medical ethics and bioethics have had a profound impact on researchers, bedside doctors, associations of physicians, and government. The President’s Council on Bioethics, a carefully chosen committee of some of the field’s most eminent members, was created to advise the executive branch on any and all issues for which guidance is needed. Furthermore, the much-maligned American Medical Association, a strong supporter of H.R. 3200, has urged President Obama to publicly recognize the code of ethics that governs the actions of physicians.

Even if some wild-eyed legislator, special interest group, or purposeful troublemaker were to ignore the personal ethical behavior that has long been among individual and organized medicine’s strongest influences, no bill could legally include any deadly provision of the kind being bruited about. In 1990, responding to several high-profile court cases--notably, those of Karen Ann Quinlan and Nancy Cruzan, two young women in deep and irreversible comas who were kept on life support for unconscionably long periods, even as their families petitioned for cessation month after month--Congress mandated that any health care institution receiving Medicare or Medicaid funding (which means all but a very few acute and chronic care hospitals) must, on admission, provide patients with three statements: one outlining their right to accept or refuse any type of treatment; another laying out their right to issue advance directives to ensure that their wishes about continuing life-sustaining therapy be carried out; and a third explaining any policies that govern the institution’s withholding or withdrawal of life-supportive treatments.

Though the purpose of the 1990 legislation was to ascertain that hospitalized patients would not be maintained on ultimately futile therapies, such as ventilators or feeding tubes, against their stated wishes, it also forbids anything resembling forced euthanasia, since the patient (or, in the case of incompetence, his or her legally authorized surrogate) by definition would not have requested it. Regardless, fulfilling such a request would be illegal if it were made in any of the 48 states that do not have an assisted-suicide law. And, even in the other two--Oregon and Washington--assisted suicide would certainly be viewed by the authorities as quite a different thing than forced euthanasia.

In order for patients to make knowledgeable decisions under the 1990 law, it is essential that they thoroughly discuss with their physicians the implications of the directives they are choosing, such as “do not resuscitate” orders. H.R. 3200 would, for the first time, legislate that the physician receive a fee for these discussions, making it more likely that they will take place and that they will be of real substance. From these provisions of the bill, the ignorant, the nefarious, and the just plain stupid have extrapolated that the purpose of the periodic consultations is really to determine life or death, with government officials and even physicians--heaven forfend--taking on the role of Dr. Mengele. It is ironic that the very legislation designed to protect patient autonomy is that from which Sarah Palin and her ilk have derived the fantastical notion that her son, Trig, who has Down syndrome, would be euthanized if H.R. 3200 were passed.

Even if such a gruesome threat were real, the combination of morality, ethics, and the law would stop it early in its malodorous tracks. The entire issue--or non-issue, which it surely is--contains the ingredients of travesty unworthy not only of the attention of the bioethics community, but of the general public as well.

Sherwin B. Nuland, the author of How We Die, is Clinical Professor of Surgery at Yale University and a member of the Executive Committee of The Yale Interdisciplinary Center for Bioethics.

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