Thursday, May 17, 2012

Purity of Intention is A Shaky Foundation


I wrote previously of the anti-choice attack on palliative care and the vulnerability of providers whose protection rests on proof of their “intent” when providing palliation. The powerful forces for which purity of intent is more important than relief of suffering are fixed on legislating their view of medicine’s proper role at life’s end. They are advancing their agenda with little opposition from practitioners.

At its own peril the medical lobby ignores bills that 1) raise the bar on what will pass for lawful practice and thought, 2) magnify penalties for those found guilty of forbidden thoughts and intentions and 3) encourage scrutiny and whistleblowing by onlookers and medical colleagues.

A recent Georgia bill illustrates the danger.

Georgia's Governor Nathan Deal
Georgia’s governor recently signed HB 1114, prohibiting assisted suicide.  Shaped by Georgia Right to Life and the Georgia Catholic Conference (thanked from the floor of the Legislative Assembly) and with no visible objection from the physician community HB 1114 purports to outlaw suicide assistance. Here I would like to affirm my strong support for clear laws and harsh penalties for those who incite and abet suicide.

But a mere 19 of this bill’s 57 lines address actual criminal behavior.  The bill’s drafters wasted few words on perpetrators of violence, guns, nooses and other atrocities by which online predators and other malicious enablers encourage self-destructive impulses of the mentally ill. The heinous crime of inciting a despondent or disturbed person to kill themselves seems almost an afterthought in this bill.

The bulk of the bill --- 37 lines --- frets over patient decision-making and medical treatment in minute detail. It focuses on doctors more than the voyeurs and predators that endanger society. The new law repeatedly specifies that any withholding, withdrawing, prescribing, administering or dispensing must be solely intended and calculated to relieve symptoms and never to cause death. Some tried to allow treatment that “eases the dying process,” but the lawmakers deemed that language too permissive and generous.

As readers of this blog well know, end-of-life medical practice is rarely as clear-cut as lawyers make it out to be. Opiates and sedatives upon ventilator removal, palliative sedation for symptoms requiring unconsciousness, increasing doses of opiates when patients suffer escalating pain or breathlessness in the throes of death, all constitute aggressive and legitimate treatment. The same medication, in the same dose, may both treat suffering and advance the time of death, depending on factors that include the patient’s weight, liver or kidney function, cardiac and respiratory reserve and the proximity of death. The two outcomes often lie beyond discernment. Some ambiguity is the norm. In this environment the Georgia felony depends on thoughts in the physician’s, pharmacist’s or nurse’s head as they deliver palliative care.  Georgia law is unique in demanding not only evidence of pure intention, but also a “calculation” in support of that intention.

The standard for end-of-life treatment used to be that the correct medication dosage is that required to relieve suffering. Georgia lawmakers now insist the correct dose is a careful “calculation” of what may be expected to relieve the patient’s suffering but will not contribute to her death. It is understandable in such a climate if the calculation gets more attention than the suffering.

Georgia lawmakers not only pasted targets on healthcare professionals, they also armed those taking aim at forbidden intentions with the state’s RICO (Racketeer Influenced and Corrupt Organization) law. The heavy artillery of RICO magnifies the state’s policing authority, extends penalties, adds civil liability and enables prosecution of individuals only tangentially involved in the patient’s care.

Patients need more legislative vigilance on their behalf. Dying patients have no voice in our nation’s statehouses. Palliative care professionals should awaken to the traps set for them by political musclemen in state Catholic Conferences and Right-to-Life Committees. Without greater caution, creation of thought crimes, threats of exorbitant punishment and hyper-vigilant whistleblowers could define the future of palliative care.

This is an invited guest post by Barbara Coombs Lee, president of Compassion and Choices.   

1 comment:

David Tribble said...

It is worth noting that the necessity for the doctrine of double effect has been on the wane. The data presented by Russel Portenoy in the Journal of Pain and Symptom Management in Dec of 2006 showed that the use of symptom-relieving doses of opioid medication did not result in shorter survival. Those who had pain severe enough to require high doses for relief generally had poorer prognoses that those who got good relief at lower doses, but the prognosis did not differ between the group that got their pain relieved and those that did not. We can pursue opioid use for relief of symptoms without having to invoke double effect.

As much to the point is the typically American illusion that continuing to treat always results in longer survival. Again, the data leads to a different conclusion, with studies showing no shorter survival among those choosing hospice care over "usual care", and longer survival for some cancers and for congestive heart failure for those choosing hospice care over "usual care", both groups being eligible for hospice care on the basis of prognosis. Electing not to pursue high-technology at end of life is not choosing to die sooner, and does not reflect the intent or result of suicide.

Established medical principles give the patient the right to refuse any treatment offered, on whatever basis the patient chooses. It falls to physicians to present a truthful picture of the benefits, burdens, and possible outcomes of any given intervention, but the decision as to whether the benefits are worth the burdens involved belongs to the patient.

The other side of that, however, is that no physician can be compelled to provide a treatment that (s)he considers to be ineffective, contraindicated or in any other manner inappropriate. I did not hear discussion in this blog as to whether this law intends to dictate that decision to physicians. If it does, it sounds like Georgia is about to experience a physician shortage.

Almost all of ethics boils down to intent. It is in our best interest, Georgia's law to the side, to be as clear about our intent as we can be, and to draw a clear line where we can between the intent to provide relief and the intent to end life. This involves not only the issue of laws like this, but the ability of our patients to trust us, and our ability to stand firm before the vast army of uninformed Luddites.

It is still illegal in all but two states for a physician to provide or administer meds for the purpose of producing death. That was true before this law passed.

It would be a catastophe, and a moral and ethical outrage,however, if this law seeks to ride roughshod over a patient's currently upheld right to decide which treatments offered him he wishes to take and which he wishes to refuse.