Compassion & Choices Minnesota End-of-Life Event

COMPASSION & CHOICES OF MINNESOTA will be hosting an event on Sunday, September 8, 2013, from 1:00 to 3:00 p.m. at the First Unitarian Society – Chalice Room, 900 Mount Curve, Minneapolis, MN.  This event is free and open to the public as well as to Compassion & Choices members.



Roland Halpern, Regional Campaign & Outreach Manager will speak about the history of the organization, recent legislative successes, and future prospects for expanding end-of-life choices in Minnesota and beyond.  For further information, contact Janet Conn at 952-929-1955.

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New Hampshire Needs a Default Surrogate Statute

New Hampshire is in the minority of states with no default surrogate statute.  In New Hampshire, as in nearby Vermont and Rhode Island, when individuals lose decision making capacity and have not completed an advance directive, it is unclear exactly who should be making medical treatment decisions for that individual.



Consequently, treatment decisions may need to be made by a court.  But nobody, not even judges, thinks that is a good process.  Fortunately, a bill is now being drafted to implement a priority list of default surrogates.  

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Texas Futility Law Protects Clinicians' Conscience Rights

While Texas House Bill 1464 (Feb. 2013) died in the 83rd Legislature, it was designed to amend Texas Health & Safety Code 166.046.  Since 1999, that section has required hospitals to continue life-sustaining treatment for only 10 days after determining that such treatment is "inappropriate."  H.B. 1464 would have deleted the 10-day time period and required treatment until transfer.  



What I found interesting (even surprising) is the Texas Catholic Conference's opposition to H.B. 1464.  They support the status quo in section 166.046, not only because because it helps prevent over-treatment but also because it protects the conscience-based objections of clinicians.



Here is the Texas Catholic Conference position statement:

This bill requires health care providers to provide medical treatment they view to be inappropriate indefinitely at the demand of a patient or surrogate. The TCC opposes this bill it imposes indefinite treatment on dying patients, and ignores the reasonable medical and ethical judgment of professionals.  Requiring physicians and hospitals to continue to provide non-beneficial treatment that they rightly believe is unethical and inappropriate violates their freedom of conscience.

I suspect that not all U.S. bishops would support a law like 166.046.  I hope someone writes to me and explains why the Texas bishops do.

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Vermont’s New Normal: End-of-Life Care & Physician Aid in Dying

On October 29, 2013, the Vermont Ethics Network is holding a day-long discussion about end-of-life care in Vermont with the passage of Act  39 (Vermont’s new law on patient choice and control at the end-of-life).  The day’s presentations will focus on:

• Understanding Vermont’s law: An Overview of Act 39. 


• Ethical issues surrounding aid in dying and the impact on patients, providers and organizations.


• Implementation issues and lesson learned from Oregon’s experience. -- Oregon physician, Peter Reagan, MD.


• Conversations with patients — fostering a dialog about end-of-life care and the available options.


• Clarifying complex medical decision-making concepts related to end-of-life; including futility, voluntary stopping of eating and drinking and foregoing life-sustaining treatments. 


• Legal & Reimbursement Considerations with Act 39 -- Linda Cohen, JD (Dinse, Knapp & McAndrew)


• Clinical Practice Guidelines for Aid in Dying -- Judy Epstein, MD (Medial Director Compassion & Choices, Denver, CO)


• Futility, VSED, Foregoing Life-Sustaining Treatment & other complex medical decisions -- Robert Macauley, MD (Clinical Ethicist; Fletcher Allen Health Care)


• Conversations with Patients about the End-of-Life and Aid in Dying -- Diana Barnard, MD (Palliative Care Specialist, Fletcher Allen Health Care)

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Lord Horder: Prolong Life, Not Dying

I was pleased to discover that the archive of the BMJ is freely available in digital format all the back to 1857.  In these archives I was pleased to find the following quote attributed to Thomas Horder, physician to several British kings and prime ministers.



"It is the duty of a doctor to prolong life and it is not his duty to prolong the act of dying."



Lord Horder apparently made this remark in a speech before the House of Lords when it was considering a voluntary euthanasia bill in 1936.

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Online RN Certificate in Palliative Care

The California State University Institute for Palliative Care has announced an RN Certificate in Palliative Care, the first, eight-week online program designed specifically to introduce RNs to the knowledge needed to practice palliative care.



The course curriculum covers the history of palliative care, palliative care for various disease states, complex pain and symptom management, ethics, care of special populations, palliative care in various settings, self-care, bereavement and professional practice issues.



The eight week online program is designed so that participants will leave the course with significantly improved palliative care skills. Nurses, regardless of what setting they practice in, already provide some components of palliative care. This course will improve their skills in all settings as well as giving them the knowledge to practice as members of the palliative care team.  In this course even the most experienced nurses will be able refresh and fine-tune their knowledge through in-depth discussions of best practices in palliative care.  For nurses currently working in palliative care, the course is also a great refresher that prepares them for the CHPN (Certified Hospice and Palliative Nurse) Certification exam.

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Medical Futility in the 19th Century

Nearly 2500 years ago, Hippocrates advised physicians to refuse to treat those who are "overmastered" by their diseases.



Debates over medical futility were especially vigorous between 1987 and 1996.  And they continue to this day.  But I was pleased to discover a new (to me) reference from the 1800s.



Theodor Billroth was a Viennese surgeon, generally regarded as the founding father of modern abdominal surgery.  In 1863, he pubished Allgemeine chirurgische Pathologie und Therapie [General Surgical Pathology and Therapeutics].



Billroth warned:  "We are entitled to operate when there are reasonable chances of success.  To use the knife when these chances are lacking is to prostitute the splendid art of surgery, and to render it suspect among the laity and among one's colleagues."

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SIU Seeks Health Law Professor

Southern Illinois University School of Law seeks to fill up to four full-time tenure-track or tenured faculty positions to begin in the 2014-2015 academic year. With a range of curricular needs, the School of Law welcomes applications from candidates with a wide variety of interests including Health Law, as well as Contracts, Torts, Legislative and Administrative Process, Family Law and other courses.



Rank & Title:  Assistant, Associate, or Full Professor of Law.  For Associate or Full Professor rank: significant teaching experience and  demonstrated achievements in scholarship consistent with the tenure and promotion standards of the Southern Illinois University School of Law.  



Duties & Responsibilities:  Classroom instruction, scholarship, and service. 



To Apply or Nominate a Candidate:  A complete application will require a letter of application detailing your interest, qualifications and relevant experience, along with a vitae or resume and three references with names.



Address or email applications to:

Patty Lynn,

Assistant to the Dean

Mail Code 6804

Southern Illinois University School of Law

1150 Douglas Drive

Carbondale, Illinois 62901

Email: lawdean@siu.edu

Deadline for application: October 1, 2013 or until position is filled.

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New $2.5 Million Centre for Research Excellence in End of Life Care

Professors Lindy Willmott, Ben White, and Fiona McDonald at the Queensland University of Technology are part of a team of ten researchers who have just secured $2.5 million in funding to establish a Center for Research Excellence in End of Life Care. 

The National Health and Medical Research Council (NHMRC) funded interdisciplinary Centre for Research Excellence (CRE) will be located at QUT and will generate new knowledge about health service delivery at the end of life.



One of those programs aims to improve the knowledge of patients and health professionals so that better decisions are made at the end of life.  The other program will focus on leadership and governance, with the goal of improving the regulatory environment (including law, policies, guidelines and ethical infrastructure) in which doctors and other health professionals operate.

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Tony Yahle Pronounced Dead; then Wakes Up

I periodically blog about "miracle" cases in which the patient has a wholly unexpected recovery.  For example, see here, here, and here.  Worldwide print, broadcast, and internet media are now covering yet another "miracle" case.



On August 5, clinicians at Kettering Medical Center in Ohio pronounced Tony Yahle dead after a 45-minute code.  At that point, Yahle was truly flatlined.  He had no electrical motion, no respiration, no heart beat, and no blood pressure.  The family was about to view Yahle's body when his heart monitor started registering an irregular heartbeat again.  Yahle soon returned home with a defibrillator in his chest and no other apparent damage. 



An American Heart Association spokesman suggests that more hospitals may want to follow Kettering’s lead and sustain resuscitation efforts for longer than the typical 20 to 25 minutes. A 2012 nationwide study of hospitals showed that in the hospitals where they worked for longer, they got more people back, who ended up surviving and going home.

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Medical Futility at ASBH Meeting

The ASBH Annual Meeting is exactly two months away.  Here are four sessions related to medical futility:



An Aid to Addressing Medical Futility Cases

(THU 10/24 2:45-3:45)

• Carol L. Powers, JD, Community Voices in Medical Ethics, Rowley, MA


• Patrick T. Smith, MDiv MA, Gordon-Conwell Theological Seminary, South Hamilton, MA


• Paul C. McLean, Community Voices in Medical Ethics, Boston, MA


• Martha Jurchak, PhD MS RN CS, Brigham and Women’s Hospital, Boston, MA

The Frequency and Cost of Futile Treatment in Critical Care

(FRI 10/25 10:30-11:30)

• Thanh N. Huynh, MD MSHS, David Geffen School of Medicine at UCLA, Los Angeles, CA


• Joshua F. Wiley, MA, University of California, Los Angeles, CA Eric C. Kleerup, MD, David Geffen School of Medicine at UCLA, Los Angeles, CA


• Neil Wenger, MD MPH, David Geffen School of Medicine at UCLA, Los Angeles, CA


• Physicians’ Beliefs and Behaviors in the Face of Medical Futility


• Cynthia Griggins, PhD MA, University Hospitals Case Medical Center, Cleveland, OH

Surgeons, Intensivists, and Discretion to Refuse Requested Treatments

(FRI 10/25 2:45-3:45)

• Mark R. Wicclair, PhD, West Virginia University, Morgantown, WV


• Douglas White, MD MAS, University of Pittsburgh School of Medicine, Pittsburgh, PA


• Margaret Schwarze, MD MPP, University of Wisconsin, Madison, WI


• Joel Frader, MD MA, Feinberg School of Medicine, Northwestern University, Chicago, IL

Nonbeneficial Treatment and Conflict Resolution: Building Consensus

(SAT 10/26 3:15-4:15)

• Craig M. Nelson, PhD CLS, Kaiser Permanente, Alta Loma, CA


• Blanca Nazareth, MSW, Kaiser Permanente, Harbor City, CA


• Dan Wilson, MAR LCSW, Kaiser Permanente Riverside, Riverside, CA


• Mark J. Bliton, PhD, Kaiser Permanente Los Angeles Medical Center, Los Angeles, CA

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Victim's DNAR Order Does Not Break Causation

I blogged about the Eddie Cortez Smith case when it was before the intermediate appellate court in Minnesota last Fall.  That court rejected a drunken driver's claim that he was not responsible for the death of a 93-year-old woman killed in a 2010 crash because her "do-not-resuscitate" order kept her from potentially life-saving medical care.  



Last week, the Minnesota Supreme Court affirmed.  

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PA Court Refuses to Appoint Guardian to Override Patient Wishes

I have defended (here, here, and here) surrogate selection as a mechanism for resolving medical futility disputes.  But there are certainly limits.  Two of the most obvious are these.  First, a surrogate cannot consent to stopping LSMT when the patient herself specifically requested it.  Second, the provider should not even be turning to a surrogate when the patient still has capacity.



Remarkably, St. Luke's Hospital in Allentown, PA seems to have ignored both these limits.  It tried to get the local court to appoint a guardian to consent to stopping LSMT contrary to the patient's own directions that LSMT be continued.  



Not only did the hospital lose, but the court imposed sanctions for even making such an argument.  That order was recently affirmed.  

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Oncologist Criminally Charged for Over-treating End-of-Life Patients

Based on a criminal complaint and indictment filed in the U.S. District Court for the Eastern District of Michigan, Dr. Farid Fata may be one of the most irresponsible doctors in the United States.  He is being charged with defrauding Medicare by billing for lots of medically unnecessary chemotherapy. 

Particularly interesting is a supporting affidavit by an FBI agent.  It specifically notes, in several different paragraphs, that aggressive curative treatment at the end of life is medically unnecessary and inappropriate.

• An oncologist employee of Dr. Fata reported: "Dr. Fata orders chemotherapy for all end-of-life patients. . . . . No other physician would do this and would let the patient die in peace."


• An employed NP reported: "Dr. Fata orders chemotherapy for 60-70% of oncology patients who are near the end of their lives.  They are not being allowed to have their last days in comfort."   

In "Clinicians May Not Administer Life-Sustaining Treatment Without Consent: Civil, Criminal, and Disciplinary Sanctions," I recently argued that the fraud and abuse laws are one type of legal sanction that can be imposed on clinicians who administer unwanted interventions.  While there appears to be more than enough other evidence to convict Dr. Fata, this case could be the camel's nose in the "tent" of DOJ (and qui tam relators) using fraud and abuse laws to sanction the use of overly aggressive interventions on end-of-life patients.

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ACT Recommendations on "Futile Care"

The Australian Capital Territory Local Hospital Network Council has a legislative mandate to consult with the community on any issues affecting the satisfactory delivery of health services, and the overall performance of the local hospital network at least once per year, prior to presenting the ACT Health Minister with the Council’s Annual Report.



In a recent report, the Council made the following recommendation:

Regardless of consumers having an ACP, the LHN should create systems within hospitals and RACFs which enable futile care to be legitimately recognised and which more easily enable clinicians to cease such care and redirect patients to palliative / end-of-life care.

This recommendation was based on a World Cafe session in which participants observed:

There needs to medical/legal community recognition that some care is futile, that it will not extend the quality of life of the patient. There should be clear processes developed, backed by the health service and with suitable safeguards, that acknowledge such care is pointless and wasteful of health system resources (that could add much more benefit elsewhere). Such processes should legitimate the withdrawal of interventions (except palliative ones) for the sake of the consumer, clinicians and the service.

The Council defined "Futile Care" as

the continued provision of medical care or treatment to a patient where there is no reasonable hope of a cure or benefit. This can include a surgeon operating on a patient with terminal cancer where there is no palliative benefit, or doctors sustaining life in patients with no meaningful brain activity for reasons other than organ retrieval.

Apart from using the term "futile care" instead of "futile intervention," the ACT's basic recommendation is sound.  The problem, of course, will be implementing the vague definition.

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Medical Futility Comprises Significant Fraction of Ethics Consults

In a piece forthcoming in the Journal of Oncology Practice, Andrew G. Shuman and colleagues at Memorial Sloan-Kettering Cancer Center reviewed clinical ethics consultation databases at two institutions from 2007 through 2011 that related to adult patients with cancer.  They identified a total of 208 eligible patient cases. The most common primary issues leading to ethics consultation were:

• Code status and advance directives (25%)


• Surrogate decision making (17%)


• Medical futility (13%)

Furthermore, the authors identified:

• Communication lapses in 45% of cases


• Interpersonal conflict in 51% of cases

I have previously blogged other studies showing that medical futility comprised 33% of consults, a top 4 issue in consults, and even >50% of consults.

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Cleveland Clinic Fellowship in Advanced Bioethics

The Cleveland Clinic, in partnership with Case Western Reserve University, University Hospitals Case Medical Center, MetroHealth Medical Center and the Louis Stokes Cleveland VA Medical Center, invites applications to the Cleveland Fellowship in Advanced Bioethics.  Fellows who graduate from this two-year, full-time program will comprise the next generation of leaders in Bioethics in academic institutions, health care settings, industry, and community and government agencies.



This fellowship training will take advantage of Cleveland’s major academic medical centers to provide a rich experience in clinical and research ethics.  The participant will be involved in scholarship and discussion of critical moral issues facing modern biomedicine regionally, nationally and internationally.



The fellowship encompasses comprehensive clinical ethics consultation experience, focused scholarly activities in fellows' respective areas of interest, participation in affiliated organizations' ethics education and organizational service activities, and community education opportunities.  Fellows also have the opportunity to obtain a Master's degree in Bioethics from Case Western Reserve University during this 2-year training program.



Applications will be considered from professionals with terminal post-graduate degrees (MD, JD, PhD etc.)  in medicine, philosophy, nursing, social work, religious studies, law, or other fields related to the practice of clinical and academic bioethics.  Priority will be given to applicants with strong potential for leadership in the field and who will most benefit from the rich clinical environment this program offers.



There is an annual stipend of $43,000 plus benefits.  Candidates must be citizens or permanent residents of the United States.  The next fellowship class begins July 1, 2014.  Application deadline is November 1, 2013.  On-line information and application guidelines available here.



For more information, contact:

Mary Adams, Fellowship Coordinator

Department of Bioethics

Cleveland Clinic

9500 Euclid Avenue, JJ-60

Cleveland, OH  44195

Phone: 216-445-2739

e-mail: adamsm@ccf.org

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Making Every Word Count for Nonresponsive Patients

Despite the apparent absence of external signs of consciousness, a significant small proportion of patients with disorders of consciousness can respond to commands by willfully modulating their brain activity, even respond to yes or no questions, by performing mental imagery tasks. 



However, little is known about the mental life of such responsive patients, for example, with regard to whether they can have coherent thoughts or selectively maintain attention to specific events in their environment. The ability to selectively pay attention would provide evidence of a patient’s preserved cognition and a method for brain-based communication, thus far untested with functional magnetic resonance imaging in this patient group.



In a just-posted article in JAMA Neurology, Canadian researchers Lorina Naci and Adrian Owen show for the first time with functional magnetic resonance imaging that behaviorally non-responsive patients can use selective auditory attention to convey their ability to follow commands and communicate. 



One patient in a minimally conscious state was able to use attention to establish functional communication in the scanner, despite his inability to produce any communication responses in repeated bedside examinations. More important, 1 patient, who had been in a vegetative state for 12 years before the scanning and subsequent to it, was able to use attention to correctly communicate answers to several binary questions. The technique may be useful in establishing basic communication with patients who appear unresponsive to bedside examinations and cannot respond with existing neuroimaging methods.

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Unbefriended & Unrepresented Patients - Who Decides?

There is a dearth of commentary and analysis of the common challenge of making medical treatment decisions for incapacitated patients with no available surrogate.  



To help fill the void, I have written about this problem here and here.  And I have another new piece still under review.  Last week, I was pleased to see a new post on the topic over at the Scientific American blog.

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Catholic Health Association on POLST

The Catholic Health Association of the United States (CHA) has devoted a major section in its latest issue of Health Care Ethics USA to POLST.  



CHA explains that its decision was prompted primarily by the publication of a “White Paper” in the May, 2013 issue of Linacre Quarterly.  But it seems I too played a small part:  "Unfortunately, the Linacre article together with opposition to POLST by two State Catholic Conferences have led to a blog on a well-known and widely-used bioethics website titled “Dangerous Catholic Attack on POLST."  While the author [Thaddeus Pope] does offer some qualifications and acknowledges that Catholic opposition to POLST is not monolithic, one could come away with the impression that, generally speaking, Catholicism opposes POLST. And it’s quite easy to jump from that to the conclusion that Catholics oppose efforts to achieve good end-of-life care."

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Four Must-Go Health Law Conferences

I want to encourage those working in health law (especially as academics) to strongly consider attending the following four conferences each year.

(1)  As an officer
of the AALS Section on Law, Medicine, and Healthcare, I hope that you are planning
to attend the Section’s programs at the 2014
AALS Meeting in New York City.  There
are two sessions of interest:

The Role of Nonprofits under the Affordable Care Act  (Jan 3, 10:30-12:15)

The program will examine the role of nonprofit and other tax-exempt
organizations under the Affordable Care Act of 2010.  Topics include the Act's impact on
nonprofits, including the ACA¹s new requirements for 501(c)(3) tax-exempt
hospitals, the participation of nonprofit hospitals in Accountable Care
Organizations (ACOs), and the creation of nonprofit Consumer Operated and
Oriented Plans (CO-OPs).

• Speaker: Kathleen M. Boozang, Seton Hall University School of Law


• Speaker: Thomas L. Greaney, Saint Louis University School of Law


• Speaker: Mark A. Hall, Wake Forest University School of Law


• Speaker: Eleanor D. Kinney, Indiana University Robert H. McKinney
  School of Law


• Moderator and Speaker: Robert A. Katz, Indiana University Robert H.
  McKinney School of Law 

Sustainability and Health  (Jan
4, 2:00-3:45)

This panel will explore the effects of the environment on health in
western nations and the role that sustainability initiatives play with regard
to wellness. Possible topics include the effects of urban planning on obesity,
the consequences of factory farming for human health, the link between ground
water and air pollution and childhood illnesses, and the effects of local and
sustainable food movements on human health. This will be an interdisciplinary
panel spanning health, environmental, and animal law and policy as well as
public health, land use, and urban planning.

• Speaker: Carl S. Hacker, Ph.D., The University of Texas Health Science
  Center at Houston


• Speaker: Oliver Luck, West Virginia University’s Department of
  Intercollegiate Athletics


• Speaker: Laurie Ristino, Vermont Law School


• Speaker: Jonathan Rosenbloom, Drake University Law School


• Speaker: Paul Shapiro, The Humane Society of the United States


• Moderator: Ani B. Satz, Emory University School of Law

(2) As a member of the ASBH program committee,
I hope that you will attend the many excellent law and bioethics sessions at
the October 2013 ASBH Annual meeting in Atlanta.  These include:

The Status of Prenatal Humans in Law, Ethics, and Health Care: Person?
Patient? Nothing?  (Oct. 24, 1:00-2:30)

• Lawrence J. Nelson, JD PhD, Santa Clara University, Santa Clara, CA


• Alyssa Henning, MA, Northwestern University, Evanston, IL


• Brian Buckley, JD PhD MPhil, Santa Clara University, Santa Clara, CA

The Undocumented Unwell: International and Comparative (Oct. 25,
8:00-9:00)
Legal and Ethical Perspectives

• Jonathan H. Marks, MA BCL (Oxon), Penn State University, University
  Park, PA

Law Affinity Group  (Oct. 25, 11:30-12:45)

Postprivacy and Progress: Emerging Legal and Ethical Issues in Whole
Genome Sequencing  (Oct. 25, 11:45-12:45)

• Elizabeth R. Pike, JD LLM, Presidential Commission for the Study of
  Bioethical


• Issues, Washington, DC


• Kayte Spector-Bagdady, JD MBioethics, Presidential Commission for the
  Study


• of Bioethical Issues, Washington, DC


• Rachel S. Bressler, JD, Presidential Commission for the Study of
  Bioethical


• Issues, Washington, DC


• Nicolle K. Strand, JD MBioethics, Presidential Commission for the Study
  of


• Bioethical Issues, Washington, DC

The Internet Revolution and the Necessary Evolution of Informed Consent   (Oct. 25, 1:00-2:30)

• Jessica Berg, JD MPH, Case Western Reserve University, Cleveland, OH

 Legal Update 2013: Top 10 Legal Developments in Bioethics  (Oct. 26, 11:45-12:45)

• Amy T. Campbell, JD MBE, State University of New York Upstate Medical


• University, Syracuse, NY


• Thaddeus M. Pope, JD PhD, Hamline University School of Law, St. Paul,
  MN


• Alicia Ouellette, JD, Albany Law School, Albany, NY


• Arthur Derse, MD JD, Medical College of Wisconsin, Milwaukee, WI

Am I (Still) a Human Research Subject? Evolution of Moral and Legal
Thought on the Rights of Participants in Novel Forms of Research (Oct. 26,
4:30-5:30)

• Beth E. Roxland, JD MBioethics, Hofstra University, New York, NY

The End of End-of-Life Law (Oct. 27, 8:30-9:30)

• Lois L. Shepherd, JD, University of Virginia, Charlottesville, VA

Late-Breaking Session: Office for Human Research Protections and
SUPPORT (Oct. 27, 9:45-10:45)

• Nancy M. P. Kind, JD, Wake Forest School of Medicine and Wake Forest


• University, Winston-Salem, NC


• Carl T. D’Angio, MD, University of Rochester Medical Center, Rochester,
  NY


• Benjamin S. Wilford, MD, University of Washington and Seattle
  Children’s


• Hospital, Seattle, WA


• Lois Shepherd, JD, University of Virgina School of Medicine and School
  of Law,


• Charlottesville, VA

Presumed Consent Laws Are Not the Answer to Increasing Organ Donation: How Can We Find Out What Is?   (Oct. 27, 11:00-12:00)

• Jennifer S. Bard, JD MPH, Texas Tech University School of Law, Lubbock,
  TX

(3)  This one may be under the radar for some.  I want to encourage health law professors and scholars to plan
to attend the Southeastern Association of
Law Schools (SEALS) Annual Conference in Amelia Island, Florida in August
2014.  I just finished attending the 2013
SEALS conference at the Breakers in Palm Beach. 
The luxurious location alone is reason enough.  But what might not be well-known is that this
conference includes significant health law programming.  Indeed, on Friday and Saturday, I attended
and participated in ten (10) hours of panels and workshops with around 30
health law professors.



(4)  Finally, lawyers teaching health law - whether in a law school, medical school, public health, or elsewhere - really should attend the annual ASLME Health Law Professors Meeting.  This is the largest and best academic conference devoted to health law.  The 2014 meeting will be June 5-7 at U.C. Hastings Law in San Francisco.

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Futility - Attack on Paternalistic Predominance of the Physician's View

I just finished reading a new article by Belgian law professor Christophe Lemmens in the European Journal of Health Law, titled "A New Style of End-of-life Cases: A Patient’s Right to Demand Treatment or a Physician’s Right to Refuse Treatment? The Futility Debate Revisited."  



Most of the article is a pretty standard overview of the ethical and legal landscape, but with more non-U.S. citations than I typically see.  In terms of an original thesis, Lemmens judges that "most of the time the predominance of the physician’s view is stressed."  Lemmens critically analyses this predominance" resulting in a re-appraisal of the patient’s will."  Lemmens states that the goal of his article is to provide "a counter movement to the paternalistic predominance of the physician's view."

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IOM Committee on Approaching Death: Addressing Key End of Life Issues - Public Comment

The
Institute of Medicine (IOM) is undertaking
a project that will
examine care for individuals approaching death. The committee will assess the
delivery of health care, social, and other supports to both the person
approaching death and the family; person-family-provider communication of
values, preferences, and beliefs; advance care planning; health care costs,
financing, and reimbursement; and education of health professionals, patients,
families, employers, and the public at large.



The
committee invites individuals who are likely approaching death, families,
caregivers, health care professionals, and others interested in these issues to
share their comments via an online survey.

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Oregon Starts Rationing End-of-Life Treatment

Yesterday, at the monthly meeting of the Oregon Health Education Review Commission, the HERC adopted restrictions on the type of treatment that cancer patients under Medicaid can receive.  The new guidelines go into effect in October 2013.



An earlier revision said patients expected to live two years or less were to have restricted treatment.  But that was revised to instead impose restrictions on terminally ill patients too weak to withstand chemotherapy or who have had multiple rounds of treatment and are not improving.  So, if the patient's organ systems are so fragile they are getting so close to the end of life, then they will not be eligible for treatment aimed at curing their cancer.  But treatment for pain and nausea, including some surgeries and radiation, will still be covered.

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Nursing Home Disallows VSED; Gets Sued for Battery

A few weeks ago, I blogged about the case of Margot Bentley, who is suffering from advanced-stage Alzheimer’s in a Vancouver nursing home.  She has been receiving spoon feeding contrary to the directions of her family and contrary to the wishes she stipulated in a living will.  



This week, Bentley's daughter and husband filed a lawsuit against Fraser Health in British Columbia Supreme Court alleging that this unwanted treatment constitutes a battery.  As I have argued at length argued (here and here) administering unwanted treatment (including oral food and fluids) DOES constitute a battery.  

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ASBH Meeting Registration Now Open

Registration for the 2013 ASBH Annual Meeting in Atlanta is now open.

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Refusing Medical Treatment Is Not Suicide, Wisconsin

Justice Prosser, one of the seven Justices on the Wisconsin Supreme
Court, recently published a concurring opinion with rather troubling
language.  Wisconsin already has some
pretty archaic and patient-unfriendly law (and here) regarding end-of-life decision
making.  But I was honestly surprised to
read what Justice Prosser wrote.

For context, the case involved a 15-year-old Jehovah’s Witness, Shelia,
who was transfused over both her and her parent’s objections.  Shelia asked the Court to adopt the mature
minor doctrine.  But the Court dismissed
her appeal as moot, both because the temporary guardianship order that
authorized the transfusions had expired and because Shelia had already received
the transfusions.  Since the Court voted
not to reach the merits of the case, most everything that Justice Prosser wrote
about healthcare decision making was dicta. 
(In a piece forthcoming in the Journal of Bioethical Inquiry, I am
attacking the Court’s refusal to reach the merits of the appeal.)

Justice Prosser concluded that Shelia’s refusal of life-saving blood
transfusions, had it been honored, would have been “suicide.”  And Justice Prosser further suggested that clinicians
who complied with such a decision would violate Wisconsin’s criminal
prohibition of “assisted suicide.”  Here
is a brief excerpt: 

¶32 Wisconsin law provides that, "[w]hoever with intent that
another take his or her own life assists such person to commit suicide is
guilty of a Class H felony." Wis. Stat. § 940.12 (emphasis added). At
first glance, this statute would not appear to be implicated in a situation
where a minor is permitted to refuse blood transfusions. In such a case, a potential
defendant would not normally have the purpose that the minor commit suicide.
However, the phrase "with intent that" also means a defendant was
aware that his or her conduct was practically certain to cause (the minor) to
commit suicide.

 ¶33 What is suicide? On this point, Sheila's doctors did not believe that
she had a terminal illness. Assuming that she is still alive, her doctors were
correct. But Sheila's attending physician predicted that she would die without
blood transfusions. There was no alternative treatment to preserve her life.
Refusing to agree to the only known treatment to save one's life is suicidal
unless a person's condition is terminal. 
Facilitating suicidal conduct in these circumstances is practically
certain to cause the person's death.

Yes, there may remain some lingering questions: (a) about the legality
of refusing oral food and fluids, (b) about the legality of honoring an OHDNR
after a suicide attempt, and (c) about the deactivation of ICDs.  But there has been longstanding legal,
ethical, and medical consensus that mere passive withholding or withdrawing of
even lifesaving medical treatment (like blood transfusions) does not constitute
“suicide.” 

   

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Defending POLST

A few weeks ago, I charged that the Catholic attack on POLST is "dangerous."  That drew a response, not from the Catholic attackers, but from Jason Manne, another critic of POLST.  

My rebuttal to Manne is now posted at bioethics.net.  Basically, we may be in agreement that there is "some" bathwater that may need cleaned up.  But neither of us is ready, like the Catholics are, to throw out the baby with that bathwater.

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Nicklinson v. DPP - Mixed Results for Right to Die in UK

Paul Lamb

Last year, the British High Court handed down judgment in the cases of Tony Nicklinson and “Martin.”  The two men were seeking clarification of the law relating to euthanasia and assisted suicide.  The court refused the relief they sought and the matter was appealed.  



Last week, the Court of Appeal handed down a 58-page judgment.  The Court of Appeal identified three main issues: 

1. Should the common law provide a defense to murder where that takes the form of euthanasia in circumstances where another party is giving effect to the settled wish of a competent person?


2. Do legal prohibitions on those providing assistance constitute a disproportionate interference with Article rights?


3. Is the DPP’s policy statement (on factors which he will take into account when considering whether or not to exercise his discretion in favor of prosecuting) satisfy the criteria that interference with Article 8 must be "in accordance with the law"? 

The Court rejected the first two arguments.  But it agreed that the DPP must review and clarify his policy on prosecutions under Section 2(1) of the Suicide Act 1961.  Additionally, the Court granted leave to appeal.

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Medical Interventions Not Available on Demand unless Clinically Indicated

In a recent letter to the BMJ, Mandie Scamell and colleagues rightly observe that non-indicated medical interventions are NOT available on demand in the UK.  



"NICE suggests that when requests for caesareans are based on anxiety, mothers should be offered referral to a perinatal mental health professional. The recommendation is that a caesarean section should be offered only if this fails."



Scamell and colleagues criticize an article for suggesting that caesarean section is available on demand.  They argue that such a reading not only fails to pass the Bolam test but contravenes existing medicolegal precedent set in 2004 through the R (Leslie Burke) v General Medical Council, where it was held that there is no right to treatment on demand (paragraphs 30-31).  



Scamell and colleagues conclude that "current legal precedent and clinical guidelines hold that surgical interventions, such as caesarean section, are not available on demand unless clinically indicated."

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New York Enacts New Health Care Proxy Law

This week, New York Governor Cuomo signed S.B. 4422.  While not dramatic as far as healthcare decision making legislation goes, it should help facilitate advance care planning.  



The new law ensures that each state agency create a link to health care proxy information on state agency websites that have significant public interaction and deal with public health issues.  It takes effect January 1, 2014.



Here is the full text:

Any state agency, board, bureau, authority, commission, division, or
other  governmental entity  performing a governmental or proprietary
function for the state that maintains a public website and has a significant
public  interaction in the field of public
health shall, in consultation with the office of information technology
services and the department of health, 
create a link on their homepage to the 
health care proxy information on the 
department of health's website. a state agency, board, bureau,  authority, commission,  division, or other  governmental entity performing a governmental
or proprietary function for the state which determines that creating such link
would create a financial hardship or which do not have a significant public interaction
in the field of public health shall be exempted from the provisions of this
section.

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Harrison Ellmer - Miracle Recovery

Baby boy Harrison Ellmer was admitted to a children’s hospice to die after his parents were told nothing could be done to save him.  But Harrison astonished doctors by making a miraculous recovery.  



I post these sorts of cases every few weeks to remind us about the limits of prognostication and to help instill humility when we declare continued treatment to be non-beneficial.

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S. 1439 - The Care Planning Act of 2013

Yesterday, Senators Warner and  Isakson introduced S. 1439, The Care Planning Act of 2013.  It is similar to, but goes beyond, Rep. Blumenauer's H.R. 1173.

• Establishes Medicare and Medicaid reimbursement for healthcare professionals to provide a voluntary and structured discussion about the goals and treatment options for individuals with serious illness, resulting in a documented care plan that reflects the informed choices made by patients in consultation with members of their health care team, faith leaders, family members and friends.


• Tests new models for more intensive services for those with advanced illness, and provides funding to support the development of a public information campaign to encourage effective care planning. It also provides grants to develop materials and maintain a web site with information about advanced care planning, portable treatment orders, palliative care, hospice, and planning services, and directs the U.S. Dept. of Health & Human Services (HHS) to include information about advanced care planning in the official Medicare & You handbook.


• Puts structures in place to focus providers on evidence of patient preferences, such as directives from other states or past discussions about treatment goals, and requires documentation of plans made prior to discharge from health facilities to assure that care plans travel with patients after discharge.


• Directs the HHS to develop quality metrics that will measure synchronicity among the individual’s stated goals, values, and preferences with documented care plans, the treatment that is delivered, and the outcome of treatment.


• Creates a Senior Navigation Advisory Board, comprised of a diverse range of individuals including faith leaders, health care professionals and patient advocates, which will monitor and advise HHS throughout implementation of the Act.

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In Denial: The Role of Law in Preparing for Death

Barbara A. Noah has published "In Denial: The Role of Law in Preparing for Death" in the Elder Law Journal 21(1):1 2013.  Here is the abstract:



Only approximately 20% of Americans have engaged in any form of advance care planning and, even among older Americans, the process frequently is delayed until an acute illness provides sufficient pressure to act. End of life law, though flawed, offers some opportunity to express individual values and preferences via advance directives of various kinds in order to prepare for death before it is imminent. Yet many people avoid making these preparations because the thought of death is uncomfortable to confront. This Article considers the utility of existing law in preventing and resolving end of life disputes and avoiding over-utilization of life-prolonging technology and the law's inevitable failure to address complex issues concerning quality of life and communication about this inevitable but usually unpredictable event.



The so-called technological imperative and the cultural admiration of those who “fight” and “do everything” to defeat illness have created an atmosphere in which physicians and patients often feel complementarily reluctant to engage in thoughtful discussions about the patient's values, preferences, and concerns or, worse, even to acknowledge openly the fact of the patient's dying. In addition, the presumption in favor of continued treatment for patients who have lost decisional capacity has created a situation in which patients are frequently subjected to multiple therapeutic and life-supportive technologies that they would not wish for if they could make the choice. This lacuna of unconsidered choices suggests a significant need for formal expressions of end of life preferences, or at least serious conversation with family and health care providers about one's preferences. The law allows individuals to express their preferences on these matters, but creates little incentive to do so.



As other commentators have noted, advance directives rarely resolve end of life disputes--these commentators have therefore suggested abandoning efforts to encourage the utilization of advance directives. There is, however, a compelling argument in favor of continuing and expanding the practice--namely, the inherent and immediate benefit to the individual of carefully and systematically thinking about and executing an advance directive or, at least, discussing preferences with a health care proxy. Laws encouraging advance directives provide a structural context in which individuals can acknowledge their mortality and make the effort to consider and articulate to themselves and others their values and preferences, resulting in much potential benefit to themselves, their families and their health care providers, not only at the end of life but throughout life. Regularizing this practice throughout adulthood may gradually reduce the impact of the technology juggernaut on the dying process. 



This Article concludes by examining the ways in which end of life law and the medical education system might be reformed to promote individual reflection and conversations between patients and physicians in order to prepare for death.

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