Denial of Treatment Against
Your Will: The Battle We’re In
Danger of Losing
National Right to Life Convention
Burke Balch, J.D.
Powell Center for Medical Ethics
July 9, 2015
What is Involuntary Euthanasia?
• Understand terms:
– Voluntary
– Nonvoluntary
– Involuntary
Medical Ethic Has Changed
• “a turnabout in medical ethics, one in which
doctors no longer want to employ all that
medical science has to offer to keep patients
alive and families find themselves fighting
for their loved ones’ right to live.”
– Ann Wlazelek, “Pendulum swings in life-saving efforts:
Hospitals’ policies on doing all they can to keep patients
alive have changed,” [Allentown, Penn.] Morning Call,
June 13, 2004.
Involuntary Denial of Treatment
Common
• 2004 Archives of Internal Medicine study:
treatment decisions physicians said they
would make inconsistent with the patients’
advance directives in 65% of cases -typically based on doctor’s perception of
the patient’s “quality of life.”
Involuntary Denial of Treatment
Common
• “About 15 years ago, at least 80 percent of
the cases were right-to-die kinds of cases.
Today, it’s more like at least 80 percent of
the cases are the other direction: family
members who are pushing for continued or
more aggressive life support and doctors
and nurses who think that’s wrong.”
– Dr. Lachlan Forrow, director of ethics programs at
Boston’s Beth Israel Deaconess Medical Center
What Does “Futility” Mean?
• Physiological futility
• Qualitative futility
Documenting Provider Denial of
Treatment
• “Will Your Advance Directive Be
Followed?” report from www.nrlc.org
Who Defines Duty of Care?
• Malpractice standards set by peers (doctors
& medical organizations)
• Duty of care can be imposed by statute
– License requirements
– EMPTALA
• Distinguish technical medical judgment
from values judgment
– Firefighter analogy
What about Conscience Rights?
• Claim: doctors not technicians, but moral
actors
– Right to refuse participation in abortion, suicide
– Right to refuse to impose pain, e.g. operate
without anesthesia on masochist
What about Conscience Rights?
• Rejoinder: must balance rights
– Discrimination based on race
• Compare nature of conflicting rights and degree of
intrusion
– Right to live vs. right to conscience
– Permanent loss of life vs. temporary duty of care
Past Pro-Life Efforts
• Treatment pending transfer (patient
autonomy argument)
• Medical groups have focused on hard cases
• Time limits for treatment pending transfer
– Texas 10 days
– Virginia 14 days
Treatment Pending Transfer
• If a patient, or an individual authorized to
act on the patient’s behalf , directs the
provision of health care or nutrition or
hydration,
Treatment Pending Transfer
• the denial of which would in reasonable
medical judgment be likely to result in or
hasten the death of the patient,
Treatment Pending Transfer
• a patient’s attending physician or health
care provider who is unwilling to comply
with the directive shall nevertheless comply
with the directive pending completion of the
transfer of the patient to a physician or
health care provider willing to comply with
the directive.
New Approach: AntiDiscrimination
• Federal Law limits on use of comparative
effectiveness research to set
Medicare/Medicaid coverage limits
• Reaction to NICE QuALYs
• 42 USCS § 1320e(c) (1)& (d)(1)
OK Non-Discrimination in
Treatment Act
• A health care provider shall not deny to a
patient a life-preserving health care service
the provider provides to other patients, and
the provision of which is directed by the
patient or a person legally authorized to
make health care decisions for the patient:
OK Non-Discrimination in
Treatment Act
• 1. On the basis of a view that treats
extending the life of an elderly, disabled, or
terminally ill individual as of lower value
than extending the life of an individual who
is younger, nondisabled, or not terminally
ill; or
OK Non-Discrimination in
Treatment Act
• 2. On the basis of disagreement with how
the patient or person legally authorized to
make health care decisions for the patient
values the trade-off between extending the
length of the patient's life and the risk of
disability.
Physiologically Futile Treatment
Not Covered
• "Life-preserving health care service" means
a health care service, the denial of which, in
reasonable medical judgment, will result in
or hasten the death of the patient
Enforcement Mechanism
• A cause of action for injunctive relief may
be maintained against any health care
provider who is reasonably believed to be
about to violate, who is in the course of
violating, or who has violated the
Nondiscrimination in Treatment Act by an
affected patient or a person legally
authorized to make health care decisions for
the patient.
Standards of Proof
• In an action pursuant to this act, if the
plaintiff pleads a prima facie case, the
health care provider may defend his or her
or its actions by pleading a legitimate,
nondiscriminatory reason or reasons that
provided a basis for the denial of treatment,
subject to an opportunity for the plaintiff to
plead that the reason or reasons for the
denial of treatment are discriminatory in
their application.
Advantages and Disadvantages
Treat pending transfer
• If adopted, absolute duty to
treat
• Requires objective evidence
of effectiveness of treatment
• Drs. have been successful in
opposing
• Lends itself to time-based
compromise
Anti-discrimination
• If adopted, only denial of
treatment based on
prohibited factors prevented
• Requires objective evidence
of subjective intent
• Harder to oppose and harder
to push for “compromise”
Debate in the Real
Legislative/Public Opinion Fora
• Tony Lauinger
• Oklahomans for Life