On Behalf of John Robertson: May Guardians Terminate Treatment Without Judicial Review?

By John Robertson

Legal questions about end-of-life decisions have moved on since the paradigm-setting battles in the 1980’s and 1990’s.  It is now clearly established that a competent person has the right to refuse needed medical treatment and to make binding advance directives about treatment if she becomes incompetent.  Physician-assisted suicide is a policy choice for states, not a constitutional right.  National debate now focuses on providing palliative care rather than high-tech interventions to prolong  fading life.  Cost reduction consistent with these values remain an omnipresent dilemma.

Sticky legal issues, however, remain, particularly with regard to the care of incompetent patients, as a Minnesota trial court recently reminded us (In re the Guardianship of Jeffers J. Tschumy, Hennepin County District Court, Fourth Judicial District, #27-GC-PR-07-496, October 18, 2012).   The question before the court was whether a broad grant of power to a guardian to make decisions about consenting or not consenting to medical treatment includes the power to have treatment terminated that will result in the ward’s death.  While allowing treatment to be withheld in that case, the court decided that only a judge, not the guardian on his own, could make that decision.  An appeal is now pending.

The court’s opinion catalogued the main arguments for each position before coming down on the side of judicial review.  Allowing the guardian to decide without court review was supported by the broad language of powers granted to guardians—to make decision about providing or withholding medical treatment—and the legislature’s failure to list termination of treatment as something that was explicitly denied the guardian (as it had done with certain other procedures).  It would also be quicker and less cumbersome, expensive, and burdensome  both for judges and family members to have guardians empowered to terminate treatment.

On the other side were the argument that the awesome power to end life was not specifically granted the guardian, and the fact that guardians are often appointed years before such decisions must be made.  At that time of appointment there is usually little thought of ending the life at some future time, and guardians so appointed may have not expertise or training in such matters.  The court concluded that until the legislature decided otherwise, a guardian would have to return to court for permission to end treatment that would result in the ward’s death.

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Twitter Round-Up (12/9-12/15)

By Casey Thomson
This week’s round-up looks at the problems of substandard drug prevalence abroad, NIH’s possible push for an anonymous grant-awarding process, and the Liverpool Care Pathway investigation. Check it out below!
  • Dan Vorhaus (@genomicslawyer) included a link to a report on the recent launch of Personal Genome Launch Canada. The post includes links to help navigate the content and learn more about the intricacies of this project. (12/9)
  • Frank Pasquale (@FrankPasquale) shared a post on the benefits and detriments of raising the age of Medicare eligibility from age 65 to 67 – an idea that has recently gained sway in the political arena. The author ultimately concludes that the move would only be a matter of cost shifting rather than cost saving, and thus harm the disenfranchised 65-66 year-olds that would front the cost. (12/10)
  • Frank Pasquale (@FrankPasquale) also included this article on Dr. Oz’s wrongful diagnosis on organics. While concerns about finances must indeed be taken into consideration when families decide what foods to purchase, families must also be concerned about the presence of pesticides in their food. Organic food, while more expensive, avoids this health hazard. (12/10)
  • Frank Pasquale (@FrankPasquale) additionally linked to this report on the preponderance of substandard (and oftentimes, consequentially lethal) drugs particularly in emerging markets. Efforts to crackdown on substandard drugs have thus far focused largely on counterfeit drugs, rather than those that are the result of “shoddy manufacturing and handling…or deliberate corner cutting,” which constitute an arguably much greater public health threat. (12/10)
  • Daniel Goldberg (@prof_goldberg) shared this post on the prevalence of worthless clinical practice guidelines. The article notes the need to distinguish the guidelines that meet much of the Institute of Medicine (IOM) quality criteria from the rest. (12/10)
  • Alex Smith (@AlexSmithMD) linked to a blog post on advance care planning and the gap between the needs of the healthcare system and those of patients. Currently, much of the paperwork required for advance directives is given without providing families and patients concrete skills needed for both identifying their desires and communicating such desires to direct their own medical care. This article calls for refocusing on providing direct patient empowerment in addition to the existing efforts to improve clinician communication in order to facilitate the ability of advance care planning to reflect the patient’s wishes. (12/11)
  • Michelle Meyer (@MichelleNMeyer) retweeted an article about the NIH’s consideration of introducing anonymity into the grant-awarding process in order to alleviate some of the concerns with bias that have long-plagued the agency. (12/12)
  • Dan Vorhaus (@genomicslawyer) also posted a report on BGI, a world-leading DNA sequencing organization based in China, and their commercial expansion efforts into the healthcare, agriculture, and aquaculture sectors. The question of whether BGI is more a research institute or commercial enterprise comes into question in the article. (12/12)
  • Stephen Latham (@StephenLatham) included a link to his own blog post on the recently renewed controversy concerning the Liverpool Care Pathway for the Dying Patient (LCP), particularly as to whether patients put on the LCP had a discussion with their care providers prior to the decision and whether hospitals were wrongly putting patients on the pathway. The talk of scandal sparked an independent investigation into the LCP; Latham’s article expressed his hope for thoroughness in the investigation and for serious consideration on how to renew the LCP effectively. (12/12)
  • Arthur Caplan (@ArthurCaplan) posted a link concerning the implications of 23andMe, a personalized genomics company, and their launch of the $99 genetic test in the hopes of inspiring greater numbers to get tested. The article’s author reflects on how the real benefit will likely not be immediate for individuals, but will rather depend on the chance that greater data will lead to more breakthroughs in understanding the human genome. (12/14)

Note: As mentioned in previous posts, retweeting should not be considered as an endorsement of or agreement with the content of the original tweet.

Twitter Round-Up (12/2-12/8)

By Casey Thomson
This week’s Twitter Round-Up features an “American Idol-style” selection of research grant winners, the problems facing children in Syria attempting to be vaccinated, and a review of where we stand with current patient health information privacy and security.
  • Michelle Meyer (@MichelleNMeyer) retweeted an article about a newly emerging landmark case in the United Kingdom. In the suit, a childless couple denied IVF funding due to the woman’s age is suing Health Secretary Jeremy Hunt (because he is “ultimately accountable for healthcare in England”) on the basis of age discrimination. Thought to be the first venture to sue the Health Secretary concerning decisions about this NHS fund rationing, this case also will be the first instance where age discrimination laws have been employed to try for fertility treatment. (12/3)
  • Alex Smith (@AlexSmithMD) shared an article about a problem patients must deal with when approaching post-hospitalization care: Medicare’s offer to pay for hospice care or for a Skilled Nursing Facility (S.N.F.), but only rarely at the same time. Not only does the choice create a financial predicament, but it also has extensive repercussions for the patient’s health. Calls for a combined benefit process between hospice/palliative care and S.N.F. have been made, including a proposed “concurrent care” demonstration project in the Affordable Care Act. (12/6)
  • Dan Vorhaus (@genomicslawyer) linked to a summary of the Ponemon Institute’s Third Annual Benchmark Study on Patient Privacy & Data Security, reporting on the challenges still being faced to safeguard protected health information (“PHI”). (12/6)
  • Michelle Meyer (@MichelleNMeyer) additionally retweeted a link explaining Brigham and Women’s Hospital’s attempt to deal with the rising difficulty of choosing which research grants to support: an “American Idol-style” public online voting. With almost 6,500 votes cast, the public engagement experiment picked a project hoping to research methods for integrating genomic sequencing into newborns’ routine medical care. When future grant holders are struggling to award between a set of equally deserving project proposals, this push for public involvement (after having confirmed scientific rigor) may have intriguing implications. (12/6)
  • Daniel Goldberg (@prof_goldberg) also linked to a study in Denmark testing the relationship between socio-economic status (SES) and blood pressure levels. Despite having a healthcare system that is free and equal-access regardless of factors like SES, the study found that SES had a “significant effect on BP [blood pressure] control” in this survey. (12/7)
  • Arthur Caplan (@ArthurCaplan) posted a report by UNICEF on the efforts by parents in the Syrian Arab Republic to get their children vaccinated. With many medical centers destroyed by the conflict, and with health practitioners having to operate and transport supplies in the dangerous environment, children have been unable to receive routine vaccinations for several months. This campaign aims to provide such vaccinations (specifically for measles and polio) to children, having advertised via churches, mosques, schools, television, and even by SMS to get greater coverage. (12/7)
  • Frank Pasquale (@FrankPasquale) included a book review of Pharmageddon by David Healy, a look at how pharmaceutical companies are excessively influencing the medical industry particularly with “diagnostic categories and clinical guidelines.” The result, according to Healy: a society where people “think about their bodies as a bundle of risks to be managed by drugs,” with a workforce that is “getting ‘sicker,'” and with “major pharmaceutical companies…banking on further overdiagnosis and overtreatment,” all “undermining universal health care.” (12/8)

Note: As mentioned in previous posts, retweeting should not be considered as an endorsement of or agreement with the content of the original tweet.

Art Caplan: MA Should Legalize Physician-Assisted Suicide

Weighing in on Question 2, Massachusetts’ ballot initiative on physician-assisted suicide, Art Caplan says we should vote “yes”:

Mass. should legalize physician-assisted suicide

Of the numerous ballot initiatives that will be decided at the state level on Tuesday, none is more hotly contested than the Massachusetts bill to decide whether to legalize physician-assisted suicide. The citizens of Massachusetts, my home state, should vote to legalize.

The proposed measure allows terminally ill patients to be given access to lethal drugs. A terminally ill patient is defined as someone with six months or less to live. The patient’s terminal diagnosis and mental competency must be attested to by two doctors. Patients would have to make a request to their doctor twice orally and once in writing. The written request would have to be witnessed.

Yet even with such restrictive conditions, opponents of the proposal say doctors should never, as a matter of professional ethics, intentionally hasten the death of one of their patients, even one who is terminally ill. The codes of medicine and nursing ethics reject helping patients die.

Keep reading…

Art Caplan in The Lancet: Death by Refusal to be Turned

Our blogger Art Caplan has a fascinating new piece in The Lancet today about an elderly patient who refused to be turned in his hospital bed and died from the ensuing bed sores/infection.  Art’s conclusions emphasize both patient autonomy and preserving the ability of health care professionals to provide care in humane and safe conditions.  In the meantime, he asks a number of important questions about this patient’s decision:

Could Harold or any other patient deny care considered basic and standard? If he asked not to be turned could he also demand that the heat be turned off in his room? Could he refuse to let anyone touch him at all? Could a patient demand no elevation of his bed? No taking of vital signs? And without a clear policy about a request not to turn, were the hospital staff exposing themselves to a good deal of bureaucratic and regulatory grief when Harold died?

 and

Harold seems to have been well within his legal rights to refuse turning. But would a hospital or a nursing home be within their rights to refuse him admission if what he wants is well outside the standard of care? Should all health-care institutions have a policy on turning? Although such requests are rare, the turmoil they cause is enormous. Should “not turning” be offered as an option in circumstances akin to those governing the ending of dialysis, ventilator support, resuscitation, and chemotherapy? Should turning be a topic of discussion as part of writing an advanced directive? If so, what support ought to be given to health-care providers involved in a case where a competent patient insists on not being turned?

What do you think?

Elderly drivers and fatal accidents: Is the doctor responsible?

[posted on behalf of Art Caplan]

Should a physician be held responsible if an elderly patient causes a car accident while driving?

A Los Angeles jury recently decided that Dr. Arthur Daigneault was not responsible for the wrongful death of 90-year-old William Powers, whose longtime partner, a dementia patient, drove into the path of an oncoming car, according to a report by The Los Angeles Times. The driver Lorraine Sullivan, 85, survived, but Powers died of his injuries weeks after the crash.

The Orange County, Calif. jury cleared Daigneault, but the case raises the question of whether the physician should have reported his patient — who had suffered memory loss since 2007 and was prescribed an Alzheimer’s drug in 2009 — to local health authorities or urged the California Department of Motor Vehicles revoke her license.

Read the rest over at NBC News Vitals.