- The Washington Times - Sunday, September 6, 2009

ANALYSIS/OPINION:

The national debate on health care reform has brought long overdue attention to the controversial, emotional topic of end-of-life care. It is unfortunate that the current conversation has at times produced half-truths. With the spotlight so focused, correcting misconceptions is time well-spent, particularly if existing end-of-life care models can help inform the debate.

The Texas Advance Directives Act is one such model addressing end-of-life decisions. It provides for a living will that allows patients to request or reject life-sustaining treatment in cases of terminal or irreversible illness.

It prohibits physician-assisted suicide or “mercy killing.” It prohibits the withholding or withdrawal of medication or treatment necessary for a patient’s comfort. And it provides a dispute resolution process when ethical disagreements arise between doctors and families of terminally or irreversibly ill patients who cannot make their wishes known.

The law was developed by a broad coalition of concerned parties, including right-to-life advocates and representatives of Texas doctors, nurses, hospitals, nursing homes, hospice facilities and lawyers. The Texas Legislature passed it unanimously in 1999, and then-Gov. George W. Bush signed it into law.

The law ensures that Texas patients have the ability to make decisions about the types of treatment they do and don’t want at the end of life, and it subjects physicians and nurses to license review if they willfully ignore a patient’s living will. But the law also offers protection for the professional ethics and conscience of physicians, nurses and other health professionals when confronted by requests for inappropriate treatment.

Medicine is a moral enterprise, and there are circumstances in which physicians and families disagree over the ethically correct treatment for a terminally or irreversibly ill patient. Should treatment be maintained, or should it be stopped? If treatment is maintained, is it prolonging dying and causing suffering, or is it saving a life? If treatment is stopped, does this harm the patient, or does it acknowledge God’s final healing that all mortals must someday face?

These moral questions and the inevitable disagreements lead to two common types of cases. The first is the “right-to-die” case in which the family demands cessation of life-sustaining treatment but the physician believes such an action is wrong and refuses to carry it out.

The second type of case is sometimes referred to as a “medical futility” case, although the word “futility” is not in the Texas law and compassionate, loving care is never futile. In this type of case, the doctor believes further life-sustaining treatment is inappropriate, of no medical benefit and even harmful, but the family demands that the doctor “do everything,” sometimes leading to what can best be described as medical torture in the intensive care unit (ICU).

In the absence of advance directives from patients, families are often quite divided themselves in this unfortunate situation, and this certainly inhibits appropriate decision-making. The easiest action for a physician to take in cases when the family demands inappropriately aggressive treatment is to provide the treatment (for which they are typically being well paid), because it requires time to appear before the ethics committee and emotional courage to stand up to the harassment from some opposed to the Texas law allowing cessation of inappropriate treatment if the rules within the law are followed.

When difficult cases do come to an ethics committee in Texas, the law seeks to protect the interests of patients first and then the interests of families and health care professionals. In the vast majority of ethics consults, compassionate, clear and thoughtful dialogue resolves the moral disagreement.

In a small percentage of cases, however, ethics committees, striving to serve the best interest of the often-suffering patient, are called to support the moral stance of either the family or the physician regarding ongoing treatment.

We have seen ethics committees sometimes agree with physicians, while other times agreeing with families in both right-to-die and medical futility-type cases. The task of the ethics committee is not easy and in any circumstance, if the family is unhappy with the ruling, they may seek transfer to another physician and medical facility or court intervention.

Those who try to politicize the end-of-life care to further their own agenda only serve to tear apart our civic fabric. They ignore the fact that since 2005, Medicare has paid for counseling about end-of-life care as part of the “Welcome to Medicare” physical and mental assessment.

They overlook the provision in the Patient Self-Determination Act, passed by Congress as part of the Omnibus Budget Reconciliation Act of 1990, that requires Medicare-participating hospitals to provide patients with written information regarding their right to accept or refuse medical treatment offered and their right to make advance directives. They distract us from remedying one of the leading causes of premature death in America — lack of health care insurance.

The Texas Advance Directives Act protects patients and health care professionals with a balanced living will and a fair mechanism for facing moral disagreements at the end of life. It is a model the nation might well build upon.

Robert L. Fine, M.D., is director of the Office of Clinical Ethics and Palliative Care at Baylor Health Care System and served as a representative of the Texas Medical Association on the coalition that wrote the Texas Advance Directives Act.

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