Note: I’ve heard that there’s a new Committee Substitute that will soon be introduced that is more explicit on DNR’s, especially on informed consent and on competent patients.
If laws demand that physicians perform acts against our consciences, you will end up with only doctors without consciences willing to perform the acts in question.
After a few more words about the meeting of the 83rd Texas Legislature Public Health Committee, I’ll post my written testimony that I turned in to the Committee. You can watch the video of the meeting, here. My testimony begins about 4:59/8:20.
I spoke just before midnight, after many others had covered the good (or bad, depending on their opinions) reforms in SB 303, so I didn’t really go in to those when I talked. Instead, I explained how I handled the few times I’ve had to write DNR’s without consent from the patient or a surrogate.
I also talked about the medical judgement of physicians, about the definition of the “right to life”as a negative right. This means that I can be prohibited from killing, but not that I can be forced to indefinitely act against my conscience and medical judgment. It’s a tough concept, meaning no one can claim that their right to life means that they can take my food and shelter, my labors or my liberty to keep them alive.
Then, I explained that yes, doctors have a special relationship, a covenant or, at least, a professional relationship due to our privilege of practicing medicine. But the duties aren’t unlimited and they are not all one way. The 10 days plus 21 days in the version of SB303 that we were discussing that night should be a sufficient time trial or test of time for the patient and the doctor’s decisions about the medical treatment, including DNR’s, that the family demands.
The explanation about the nature of medical judgment that I gave is in the written testimony:
May 13, 2013
Chair Kolkhorst and members,
The Texas Advance Directive Act of 1999, created a procedure for resolving disagreements between doctors and their patients or surrogates about which interventions are medically appropriate. The experiences of patients and doctors during the few times that procedure has been invoked over the years, revealed some problems.
The reforms in SB 303 improve the Advance Directive Act by
· Giving patients and their surrogates much more time and assistance than current law provides in order to prepare for the ethics committee meeting and, if necessary, to find a new doctor willing to accept responsibility for the care of the patient,
· Clarifying the succession of surrogates under state law,
· Protecting the patient’s access to artificially administered hydration and nutrition,
· Restating Texan’s belief that patients should be treated equally regardless of age, disability or ability to pay,
· Adding a whole new section regulating the implementation of Do Not Attempt Resuscitation orders, which our State law hasn’t addressed at all in the past, and
· By protecting the conscience rights of doctors from undue threat of civil, criminal and regulatory liability.
After all, while the hospital provides structure in the form of policies and the medical committee provides oversight about ethics and standard of care, it’s doctors like me, not hospitals or committees, who practice medicine using our medical education and experience guided by conscience, or medical judgment. Medical judgment, not lawyers and paperwork at the bedside, is what enables me to predict the effectiveness of interventions before I order them.
Like all but a handful of Texas doctors, I’ve never had to ask for a medical ethics committee review, but I have had to ask another doctor to co-sign a DNR when I couldn’t find a legal surrogate. As a family doctor, I’ve found that algorithms and “cookbook medicine” or lines of succession for absent family members sometimes aren’t enough when a patient’s physical condition is deteriorating quickly or even when disease runs its expected course, causing organ system after organ system to fail.
Ethics and laws generally lag behind medical advances. Once upon a time, people who couldn’t breathe for themselves were considered to have died a “natural death,” but we keep changing the rules about what we expect human bodies and the “art” of medicine to do. Please support the necessary and important reforms in SB 303.
Thank you for your time and attention,
Beverly B. Nuckols, MD, FAAFP, MA (Bioethics)
Last night, an emergency meeting ot the 83rd Texas Legislature’s Public Health Committee addressed Senate Bill 303, by Senator Duell in a 12 hour long meeting. Representative Susan King, who authored the Companion Bill in the House and sponsored SB303 in this meeting, appeared only one day after a fracture of her tibia. This woman is a hero!
I also want to thank Chair Lois Kolkhorst for ensuring that the meeting was held so that SB303 – and all the people who are so passionate about patients rights and good medicine in Texas could be heard.
It was wonderful to see all the people who volunteer so much of their time to influence Texas law – even when they disagreed with me. What a pleasure to meet new friends, including a gentleman whose name I can’t recall (will fix this later) and Jacqueline Harvey, Ph.D.
Here’s an excerpt from Dr. Harvey’s testimony,
While opponents say that S.B.303 grants power to providers to remove care patients in irreversible conditions, I’d remind them again that one cannot extend to providers power which they already legally possess. Opponents claim that S.B. 303 adds this broad definition, when in fact; this broad definition was established in TADA and is current Texas Law. What S.B. 303 does is add protections to prohibit discrimination against persons with disabilities by ensuring that care may be removed only when harmful (i.e. treatment would fail, hasten patient death, exacerbate another medical condition or cause unnecessary pain). These conditions are standard medical ethics a la “do no harm.”
I’ll write more after I get a chance to review the video of the hearing. There’s some sort of glitch at the Legislature Audio and Video page. (Might have something to do with 12 hours of recordings, ending after 2 AM)
“Father Tad” is the Director of Education at the National Catholic Bioethics Center. The Texas Catholic Conference published his commentary on “DNR’s” on May 10, 2013.
These judgments are tricky to make, because the specifics of each case differ, and those specifics change with time and disease progression. DNR’s should be put in place only when the circumstances warrant it, that is to say, on a case-by-case, patient-specific basis. In other words, when CPR/resuscitation can reasonably be determined to no longer offer a hope of benefit to the patient or if it entails an excessive burden to him, at that time a DNR can be put into place.
Some of the possible burdens that may need to be considered in deciding whether to pursue resuscitative interventions for a patient would include some of the following: the risk of rib or other bone fractures, puncture of the lungs by a broken bone (or from the trauma of lung compression and decompression), bleeding in the center of the chest, cerebral dysfunction or permanent brain damage, the small risk (about 3 or 4 percent) that the patient might end up entering a vegetative state, and subsequent complications if the patient ends up staying on a ventilator for an extended period following the resuscitation.
During resuscitative efforts, elderly patients are more likely to experience complications or to have ribs break during CPR. Younger patients, on the other hand, tend to show a greater resilience and are often better able to tolerate CPR. Patients suffering from advanced cancer are also known to fare poorly following resuscitative efforts.
In terms of overall statistics, when a patient codes in the hospital and all resuscitative measures are taken, patients frequently do not end up leaving the hospital, especially when they are elderly or have other co-accompanying conditions. Based on data from the National Registry of Cardiopulmonary Resuscitation (NRCPR), studies have determined that patients who undergo cardiac arrest in the hospital have an overall survival to discharge rate of about 17 percent. The rate drops even lower (to around 13 percent) for cancer patients. In other words, the benefits are oftentimes few and short-lived, while the burdens tend to be high. There are, of course, exceptions — while many patients do not experience significant benefits from resuscitative measures, a small percentage do.
So when death is imminent, and disease states are very advanced (perhaps with multiple organ failure), and assuming other spiritual matters, such as last sacraments, have been addressed, a DNR order may not raise any moral problems. The key consideration in making the judgment will be to determine whether the benefits of resuscitation outweigh the burdens. So when death is imminent, and disease states are very advanced (perhaps with multiple organ failure), and assuming other spiritual matters, such as last sacraments, have been addressed, a DNR order may not raise any moral problems. The key consideration in making the judgment will be to determine whether the benefits of resuscitation outweigh the burdens.
DNR orders can be misused, of course, if they are broadly construed as calling on medical professionals to abandon or otherwise discontinue all care of a patient. Even as patients may be declining and dying of serious underlying illnesses, we must continue to care for them, support and comfort them, and use the various ordinary means that they may have been relying on, such as heart and blood pressure medications, diuretics, insulin, etc.
We should always seek to do what is ethically “ordinary” or “proportionate” in providing care for our loved ones, though we are never obligated to choose anything that would be heroic, disproportionate or unduly burdensome when it comes to CPR or other resuscitative measures.
An opponent of SB 303 and I have been discussing the Bill on an earlier post. She referred to my “list of endorsements.” This is a fairly strong list of endorsements, at least for those of us who are believers, don’t you think?
The Texas Baptist Christian Life Commission is ” is pleased that SB 303 was recently voted out of the senate.”
Texas Catholic Bishops letter to members of the Texas House of Representatives urging support for SB 303
The Morality and Wisdom of Incremental Legislation: The Case for SB 303 by Rev. Tadeusz Pacholczyk, Ph.D.
Texas Catholics Bishops Conference been very active over in the many efforts over the years to reform of the Texas Advance Directive Act and all have signed the endorsement strongly urging passage of SB303 http://www.txcatholic.org/press-releases/336-texas-catholic-bishops-strongly-urge-house-vote-on-end-of-life-care.
I’ve relied on the National Catholic Bioethics Center ( Marie Hilliard and Father Tad) for their consistent and coherent efforts to preserve traditional medical ethics. NCBC has also endorsed the Bill, and written an excellent response to criticism of SB303.
Added 5/11/13 at 11:00 AM, more endorsements and information:
Here is another discussion about the end of life for my Catholic friends who are trying to decide whether to support SB 303.
Life, however, is not an absolute good.
Treatment and life support
Questions about the use of medical treatments and life-support systems are distinct from—and yet often associated with—euthanasia. The scriptural insights can be very helpful with these issues, even if they cannot give details. As good stewards, we believe that death is not the final word, that life is not an absolute good. Therefore, we do not have to keep someone alive “at all costs.”
The Catholic tradition helps with the details, providing this guidance: ordinary means must be used; extraordinary means are optional. Ordinary means are medicines or treatments that offer reasonable hope of benefit and can be used without excessive expense, pain or other inconvenience. Extraordinary means do not offer reasonable hope of benefit or include excessive expense, pain, or other inconvenience. What is important to remember is that “ordinary” and “extraordinary” refer not to the technology but to the treatment in relation to the condition of the patient, that is, to the proportion of benefit and burden the treatment provides the patient (see the Vatican’s Declaration on Euthanasia, #IV, 1980).
Many people remember when Cardinal Joseph Bernardin of Chicago decided to stop the treatment for his cancer. The treatment had become extraordinary. He did not kill himself by this choice but did stop efforts that prolonged his dying. He allowed death to occur. (This distinction between allowing to die and killing, as in euthanasia or assisted suicide, is of great significance in the Catholic tradition. The rejection of this distinction by several U.S. courts raises serious concerns.)
Within the Catholic Church, debate still surrounds the question of providing medical nourishment through a feeding tube. Let’s look at two positions.
1) “Life must almost always be sustained.” This position holds that the withdrawal of medically assisted nutrition and hydration cannot be ethically justified except in very rare situations. The fundamental idea for this position is the following: Remaining alive is never rightly regarded as a burden because human bodily life is inherently good, not merely instrumental to other goods. Therefore, it is rarely morally right not to provide adequate food and fluids.
This position acknowledges that means of preserving life may be withheld or withdrawn if the means employed is judged either useless or excessively burdensome. The “useless or excessive burden” criteria can be applied to the person who is imminently dying but not to those who are permanently unconscious or to those who require medically assisted nutrition and hydration as a result of something like Lou Gehrig’s or Alzheimer’s disease. Providing these patients with medical nourishment by means of tubes is not useless because it does bring these patients a great benefit: namely, the preservation of their lives.
2) “Life is a fundamental but not absolute good.” This approach rejects euthanasia, judging deliberate killing a violation of human dignity. On the other hand, while it values life as a great and fundamental good, life is not seen as an absolute (as we saw in the section on scriptural foundations) to be sustained in every situation. Accordingly, in some situations, medically assisted nutrition and hydration may be removed.
This position states that the focus on imminent death may be misplaced. Instead we should ask if a disease or condition that will lead to death (a fatal pathology) is present. For example, a patient in a persistent vegetative state cannot eat enough to live and thus will die of that pathology in a short time unless life-prolonging devices are used. Withholding medically assisted hydration and nutrition from a patient in such a state does not cause a new fatal disease or condition. It simply allows an already existing fatal pathology to take its natural course.
Here, then, is a fundamental idea of this position: If a fatal condition is present, the ethical question we must ask is whether there is a moral obligation to seek to remove or bypass the fatal pathology. But how do we decide either to treat a fatal pathology or to let it take its natural course? Life is a great and fundamental good, a necessary condition for pursuing life’s purposes: happiness, fulfillment, love of God and neighbor.
But does the obligation to prolong life ever cease? Yes, says this view, if prolonging life does not help the person strive for the purposes of life. Pursuing life’s purposes implies some ability to function at the level of reasoning, relating and communicating. If efforts to restore this cognitive-affective function can be judged useless or would result in profound frustration (that is, a severe burden) in pursuing the purposes of life, then the ethical obligation to prolong life is no longer present.
Disagreements in the Church
How are these significantly different positions judged by the Roman Catholic Church? There is no definitive Catholic position regarding these two approaches. Vatican commissions and Catholic bishops’ conferences have come down on both sides of the issue. Likewise, there are Catholic moral theologians on both sides.
Emphasis by underlining is mine. Edited 5/10/13 BBN
For my Catholic readers who are concerned about SB 303 and the discussion about a doctor’s decision that it’s medically appropriate to withhold artificial food and nutrition by feeding tube or IV:
Such persons, if treated with a feeding tube and intensive nursing care, can sometimes live for months or years. When they die, it is typically due to complications of feeding-tube treatment, such as pneumonia caused by food placed in the stomach going up the esophagus (foodpipe) and down into the lungs.
Thinking about using feeding tubes in a rare condition such as post-coma unresponsiveness is very different from thinking about using feeding tubes in more common diseases such as cancer, AIDS, Alzheimer’s disease, Lou Gehrig’s disease or Parkinson’s disease. Tube feeding in these types of patients will often result in great burden, no net benefit and multiple complications.
In very many such cases, tube feeding will meet the criteria by which it could be considered extraordinary or morally optional. These diseases continue to progress and get worse-no matter what treatment is offered. Complications such as pneumonia are much more common when feeding tubes are used for such patients.
Patients with dementia sometimes pull the tubes out and would need to be restrained in order to be fed. In fact, in these conditions it has even been difficult to show that the use of feeding tubes actually makes the patients live longer. Clearly, in many such cases, the burdens of treatment can be judged disproportionate with respect to the benefits, and the treatment could therefore be judged extraordinary or morally optional.
The opponents of Senate Bill 303 may not realize it, but they are promoting the very thing they claim to oppose: elevating the patient’s right to determine his own care above the doctor’s conscience will result in doctors who practice medicine without consciences.
The consequences of elevating autonomy above non-maleficence (“first do not harm”) go to the very heart of medical ethics. In fact, the promotion of patient autonomy is the common justification for euthanasia and elective abortion on demand.
The doctor is the one whose hands, conscience, and medical judgment will be writing the orders for or actually carrying out the resuscitation. Just as it’s not ethical to force doctors to cause the death of patients, it’s not ethical to demand that doctors write orders and perform interventions when their medical judgment indicates that the intervention will not be successful and will increase pain and suffering while prolonging the process of death.
As ethicist Gilbert Meilaendar noted at the President’s Bioethics Council Meeting in September 12, 2008,
[T]he reason for a physician being willing to risk his life in an epidemic was precisely that he didn’t think staying alive was the most important thing, that there was something else that was morally more compelling and obligatory even than preserving his existence. And that would have something to do with the personal integrity that you seem willing to think may be — one should be willing to set aside in embracing what one thinks is evil.
Here’s an excellent professional article about end of life care for patients that’s relevant to our discussion about SB 303.
Two Roads to Death
Two major pathways to death have been described: The easy and the difficult road Figure 1. Depending on the road a patient takes, the intensity of ED management may vary significantly. For instance, some patients are highly symptomatic at the EOL, requiring intravenous medications and even continuous drips to maintain comfort while others can be managed by relatively simple oral regimens in the home setting, with the support of hospice services.For symptoms like pain, the EM skill set proves sufficient as the management of healthy patients and those at the EOL is similar. EM treatment algorithms are less relevant, however, for symptoms like dehydration, delirium and dyspnea in the dying patient. For this reason, we will focus our attention on the unique approach to these common and often troublesome EOL issues.
The House rejected an amendment to allow the people of Vermont to vote on a referendum. The Vermont Senate has not passed the Bill.
MONTPELIER, Vt. (AP) — After a second long day of debate, the Vermont House gave final approval Wednesday to a bill that would allow terminally ill patients to ask their doctors for a lethal dose of medication.
Doctors don’t swear oaths as part of our training anymore; and certainly not the Hippocratic Oath. After all, the Hippocratic doctor swears to follow his conscience, even when the patient disagrees. He must refuse to give women medicine or devices to cause abortion or to give poisons to kill patients, no matter who asks for it.
Neither doctors nor hospitals killed Terri Schiavo. Terri Schiavo was killed by her husband’s lawyers and the probate judge who forbade food and water by mouth and by IV or feeding tube.
The Texas Advance Directive Act of 1999 (TADA) describes “Advance Directives to Physicians” (what most people would call a “Living Will”) and contains Section 166.046, an attempt to outline the procedure for resolving a disagreement between a doctor and patients or their surrogates about what is medically appropriate treatment.
The law currently in effect requires the doctor to notify the patient or the surrogate when he or she believes that their request is medically appropriate. If there is still a disagreement, the doctor asks the hospital to convene a meeting of their ethics committee. If the committee agree agrees with the doctor, and no other doctor is willing to take over the care of the patient, the treatment in question can be withheld or withdrawn. TADA doesn’t allow “Physician Assisted Suicide” and certainly doesn’t allow euthanasia, where the patient might be killed on purpose.
The Texas Senate passed Senator Bob Duell’s Senate Bill 303, which significantly improves current law. SB 303
Because SB 303 still needs to pass in the House, Texas Alliance for Life asked me to help them make a video explaining how it reforms current law.
If you agree that SB 303 is a pro-life reform Bill please call your State Representative at 512-463-4630 and ask him or her to support SB 303.
My “Ethics 101″ on the law: “Back to Basics on Texas Advance Directive Act”
Texas Senate Passes Pro-Life SB 303 to Help FamiliesProtect Loved Ones Near the End of LifeLt. Governor David Dewhurst and Sen. Donna Campbell M.D. Deserve Thanks!April 24, 2013Dear Larry and Beverly:Very good news! Last week the Texas Senate passed SB 303, a strong pro-life bill that will change current law to help families protect their loved ones near the end of life. Supported by pro-life Lt. Governor David Dewhurst and authored by Sen. Bob Deuell (R-Greenville), the full Senate passed SB 303 on a decisive 24-6 vote.Your Texas state senator, Sen. Donna Campbell M.D., voted to support SB 303, a pro-life vote. Please thank Lt. Governor Dewhurst and Sen. Campbell for their support. See sample messages below.SB 303 is strongly supported by broad coalition of pro-life and provider organizations including Texas Alliance for Life, the Texas Catholic Conference of Bishops, and the Texas Baptist Christian Life Commission.Voting for SB 303 were: Campbell, Carona, Davis, Deuell, Duncan, Ellis, Eltife, Estes, Fraser, Garcia, Hinojosa, Huffman, Lucio, Nelson, Nichols, Rodriguez, Schwertner, Seliger, Uresti, Van de Putte, Watson, West, Whitmire, and Zaffirini.Voting against SB 303 were: Hancock, Hegar, Patrick, Paxton, Taylor, and Williams. Senator Brian Birdwell was absent.
Prevents secret DNAR orders (“Do Not Attempt Resuscitation”). Current law allows doctors to order DNARs without even notifying the patient or family.
Prevents the involuntary denial of food and water, except in extreme circumstances when the treatment would harm the patient or hasten his or her death.
Increases the time of the dispute resolution process from 12 to 28 days when a family and patient disagree about appropriate end of life care.
Significantly limits the class of patients to whom the dispute resolution process can be applied.
Requires doctors and hospitals to treat all patients “equally without regard to permanent physical or mental disabilities, age, gender, religion, ethnic background, or financial or insurance status.”
Preserves conscience protections so physicians are not required to provide futile or harmful procedures indefinitely.
A great deal of false and misleading information about SB 303 has been spread by several groups, especially by one group in particular that is based in Houston. In response, the Texas Catholic Conference of Bishops issued a strongly-worded letter to set the record straight. Please see this: http://txcatholic.org/news/327-misstatements-against-end-of-life-care-reform-corrected-in-letter-to-lawmakers
See my earlier post about the rebuke TRTL received from the Texas Catholic Bishops Conference. – http://wp.me/p1FiCk-XW – and an even earlier explanation (long winded, I’m afraid) – http://wp.me/p1FiCk-Wb
Edited 4/27/13 to add that last paragraph – BBN
Using words such as “egregious,” “cynical,” “outrageous,” and “deceive,” the Texas Catholic Bishops Conference have published the letter that they sent to Texas Legislators concerning the actions of Texas Right to Life concerning Senate Bill 303 and its companion, House Bill 1444 on April 15, 2013.
Since employees and representatives of TRL continue to “stoke fear through ridiculous claims,” (and to harass those who support the Bills) here’s the letter (I’ve reproduced the emphasis is in the original):
The Texas Catholic Conference is compelled to publicly correct the misstatements and fabrications that continue to be perpetuated by the Texas Right to Life organization against legislation to improve end-of-life care by reforming the Texas Advance Directives Act.
It has been said that all is fair in love, war and Texas politics. However, the actions of Texas Right to Life have been so egregious and cynical, especially when comes to misrepresenting the moral and theological doctrine of the Catholic Church, that the TCC cannot stay silent.
Texas’ Advance Directives Act needs reform. Current law lacks clarity given the complexity of end-of-life care, contains definitions that could permit the withdrawal of care for patients – including food and water – and permits unilateral Do Not Resuscitate Orders without the permission of, or even consultation with, the family.
Senate Bill 303 and House Bill 1444 are based on Catholic moral principles and reasonable medical standards for defending human life and protecting the conscience of both families and physicians. Both billsprevent unilateral DNRs, improve communication between medical providers and families, ensure a clear and balanced process for resolving differences, and give families the right to challenge Do Not Resuscitate Orders before a medical ethics committee.
In both its materials and communications with legislative offices and staff, Texas Right to Life has tried to stoke fear through ridiculous claims of nonexistent “death panels” and assertions that doctors are “secretly trying to kill patients.” Both claims are absurd. The truth is, many factors are involved in the sausage-grinding process of public policymaking. Some have less to do with making good laws and more about individual personalities and fundraising opportunities of organizations.
It is outrageous that an organization purportedly committed to the rights and dignity of life would resort to such disingenuous tactics that deceive honest and caring people. What is worse is doing so in a way that perpetuates current law and may cause unnecessary patient suffering.
Texas Right to Life has no authority to articulate Catholic moral teaching, and certainly does not have permission to represent the views of the Roman Catholic Bishops of Texas. If you have any questions, please feel free to contact us at the Texas Catholic Conference. We are more than happy to answer any questions or provide the Texas Catholic Bishops’ position on any issue before the Legislature.
(Edited for spelling and grammar, 4/25/13 BBN)
You can comment, let the New England Journal of Medicine editors and the world know your thoughts.
Do you believe that Mr. Wallace should be able to receive life-terminating drugs from his physician? Which one of the following approaches to the broader issue do you find appropriate? Base your choice on the published literature, your own experience, and other sources of information.
To aid in your decision making, each of these approaches is defended in the following short essays by experts in the field. Given your knowledge of the patient and the points made by the experts, which option would you choose? Make your choice and offer your comments at NEJM.org.
My opinion is that poisoning Mr. Wallace, or writing the prescription so that he can attempt to intentionally commit suicide, is a direct infringement of Mr. Wallace’s inalienable right not to be killed.
Laws relating to ethics debates are generally behind medical advances. This is good because it means that there *are* medical advances.
However, the debates often become emotional and heated, and the individuals who are affected face real dilemmas and emergencies. When law-making is controversial, it’s best to go back to the basics of ethics for guidance: the inalienable rights to “Life, Liberty and the Pursuit of Happiness,” the Declaration of Independence, and Constitution.
All laws limit our rights, but good laws strike a balance between seemingly conflicting rights: they are meant to prevent one person from harming another. Most laws prohibit or punish harmful actions, they don’t *compel* a desired action against our will. Nor do they prohibit actions based on thoughts and opinion. In other words, laws prohibit harming or taking from another, but they usually don’t make you protect, nurture or give to another.
However,since the right to life trumps the right to liberty and property, there are very rare circumstances when it is appropriate for laws to compel individuals to act for the benefit of another. Parents are required to care for and protect their minor children. Doctors and lawyers must be licensed, obtain certain levels of education, and follow specific, positive actions when they wish to withdraw from a professional relationship with a patient or client. These laws should only go so far as to protect the life and safety of the vulnerable, for a limited time with the goal of allowing safe transfer of the obligation of the person with more power to someone else.
On Tuesday, March 19, 2013, the Texas Senate Health and Human Services Committee, under Chair Senator Jane Nelson, heard testimony on two Bills that would change TADA: SB 303 from Senator (Dr.) Bob Duell’s and SB 675 by Senator Kelly Hancock.
The Texas Advance Directive Act of 1999 (TADA), in addition to describing “Advance Directives to Physicians” (a “Living Will), was an attempt to outline the procedure for resolving the disagreement between a doctor and patients or their surrogates regarding end of life care.
When I first read the Act, I (naively) thought it was malpractice protection for doctors who did not want to withdraw or withhold care, such as the Houston Methodist Hospital doctors who invoked the act when they repaired Dr. Michael Debakey’s aortic aneurysm against his previously stated wishes – http://www.theheart.org/article/762619.do – in 2006.
Most of the time, however, TADA is invoked in cases when the attending physician disagrees with a request to actively administer medical treatment that he or she believes is medically inappropriate. The steps laid out in the law involve the doctor’s notification of the patient or the surrogate, rules for assisting with transfer of care to another doctor who believes the treatment request is appropriate, and convening an ethics committee at the hospital. If there is no other willing doctor can be found and the ethics committee agrees with the doctor, the treatment can be withheld or withdrawn. It does not allow patients to be killed by medicines.
Unfortunately, the Act has become known as the “Texas Futile Care Law,” and divides even the pro-life community. One side says doctors and hospitals have too much power and are killing people. While I’ve heard horror stories about doctors who have abused or broken the law, I maintain that there is no “Futile Care Law,” only a difference of opinion as to who should decide what is medically appropriate treatment. In the few cases that have come under the Act, patients and their advocates report trouble finding other doctors willing to provide the treatment the first doctor thought was inappropriate. In my opinion, that difficulty is due to physicians’ common education and shared experiences.
Although TADA lays out requirements for hospitals and hospital medical ethics committees, the fact is that it applies to the “attending physician” who could be forced to act against his conscience. Texas law is clear that only doctors may practice medicine by diagnosing and treating patients directly or “ordering” other medical personnel. These treatments are not one-time events and they aren’t without consequences. They are interventions that must be monitored by observation and tests, and adjustments need to be made so that the treatment is effective and not harmful. Medical judgment is how doctors utilize our education, experience, and consciences as we plan and anticipate the effect of each medical intervention.
Senator Duell’s Bill, SB 303, significantly improves TADA. Among other things, the Bill would add protection of the patient’s right to artificially administered hydration and nutrition, increased access to assistance, records, and time before and after the ethics committee meeting, and prohibits so-called “secret DNR’s.”
Senator Hancock’s Bill, SB 675, focuses on the intentions and motives of the doctor, requiring the medical committee to decide whether the disagreement is due to: “(1) the lesser value the physician, facility, or professional places on extending the life of an elderly, disabled, or terminally ill patient compared to the value of extending the life of a patient who is younger, not disabled, or not terminally ill; or “(2) a disagreement between the physician, facility, or professional and the patient, or the person authorized to make a treatment decision for the patient under Section 166.039, over the greater weight the patient or person places on extending the patient ’s life above the risk of disability.”
Our laws normally prohibit actions and only very rarely compel people to act. Under the conditions laid out in SB 303, the doctor can be forced to act against his conscience and best medical judgment, but only for a limited, stated time. SB 303 improves the Texas Advance Directive Act by protecting the patient’s access to artificially administered hydration and nutrition. It also adds time to prepare for the ethics committee meeting and to transfer care a new doctor. It is an attempt to balance the patient’s wishes for medical intervention with the right of conscience of the doctor. In contrast, SB 675 would attempt to legislate intentions or thoughts, with none of the added protections of SB 303.
Edited 4/27/13 to fix the link to the article about Dr. Debakey and 4/30/13 for grammar and formatting – BBN.
It’s difficult to write about a respected medical journal which promotes “Aid in Dying” without resorting to emotional words such as “horrifying,” “shocking,” or “murder,” but I’ll try. However, I will not call the practice “physician aided death” or “aid in dying.” It is, at best “physician assisted suicide,” and at worst, “euthanasia,” or the use of medical technology and procedures to actively end the life – to intentionally kill – a patient. This is not “medicine” as I understand it.
Chest is the journal of the American College of Chest Physicians. These are the Internal Medicine subspecialists who focus on lung disease, cardiac care, and sleep medicine. They are likely to be the doctors who care for the most vulnerable patients, especially in the Intensive Care Unit at your hospital.
Under the heading “Medical Ethics,” in the July, 2012 issue is an article titled, “Aid in Dying: Guidance for an Emerging End-of-Life Practice,” authored by Kathryn L. Tucker, J.D. The article is available online as a web page, here, and as in pdf., here.
Beginning with a principle that virtually all of us can agree with,the right to refuse intentional medical intervention, the article quickly moves to the very controversial opinion that the first principle ensures the “right” to request “treatment” that is intended to end the life of the patient – to kill:
•A patient with decision-making capacity has the legal right to refuse or request the withdrawal of any medical treatment or intervention, regardless of whether he or she is terminally ill and regardless of whether the treatment prolongs life and its withdrawal results in death.
•A patient with decision-making capacity has the legal right to request and receive as much pain medication as necessary for relief, even if it advances the time of death.
•Principles of autonomy that underlie respecting patient rights to refuse or direct withdrawal of life-prolonging interventions or to request pain medication even if it advances time of death support the choice for aid in dying. Aid in dying is increasingly accepted in law and medicine in the United States.
•Provision of aid in dying does not constitute assisting a suicide or euthanasia. Aid in dying is a practice with growing support in the public and medical and health policy communities and is likely to become more widely requested in the future.
•A clinician cannot be compelled to provide treatment that conflicts with his or her personal values. In these circumstances, the clinician cannot abandon the patient but should refer the patient to a colleague who is willing to provide the service.
Four prima facie principles have been used to characterize most ethical concerns in medicine: respect for patient autonomy, beneficence, nonmaleficence, and justice. Respect for patient autonomy refers to the duty to respect patients and their rights of self-determination; beneficence refers to the duty to promote patient interests; nonmaleficence refers to the duty to prevent harm to patients; and justice refers, in part, to the duty to treat patients and distribute health-care resources fairly.11 When applied to the care of an individual patient, however, these principles may conflict with one another. For example, a patient’s values, preferences, and goals may be at odds with a clinician’s perception of how best to help and not harm the patient. Clinical ethics identify, analyze, and provide guidance on how to resolve these conflicts.
While I believe that there may come a time when it is ethical to stop trying to keep a patient alive – when treatment is only making the dying process longer – I will never assist in an act that can only end in the death of my patient. The way I explain this is that I will assist in removing a ventilator under certain circumstances, but I won’t then put a pillow over the patient’s face to make sure she can’t breathe on her own afterwards. The intent of medicine is to diagnose and treat disease, not to end the life of patients suffering from disease.
Here is the original 2010 platform – I’ve only copied the section that was disputed. The 2010 Platform was used by the 2012 Temporary Platform Committee as a beginning for our new 2012 Platform of the Republican Party of Texas. (At least for now, the entire 2010 document is online at the Tarrant County Republican Party website. The 2012 Platform is here at the RPT website.) (Thank you Tarrant County Republican Party!)
STRENGTHENING FAMILIES, PROTECTING LIFE AND PROMOTING HEALTH
PROTECTING INNOCENT HUMAN LIFE
Party Candidates and the Platform on Protecting Innocent Human Life– We implore our Party to support, financially or with in-kind contributions, only those candidates who support protecting innocent human life. Further, we strongly encourage the State Republican Executive Committee to hear and recognize the longstanding and overwhelmingly consistent voice of the grass roots and revise its by-laws to make this action binding on our Party.
Partial Birth Abortion– We oppose partial birth abortion. We recommend that Congress eliminate from all federal court jurisdictions all cases involving challenges to banning Partial Birth Abortion.
Right To Life – All innocent human life must be respected and safeguarded from fertilization to natural death; therefore, the unborn child has a fundamental individual right to life which cannot be infringed. We affirm our support for a Human Life Amendment to the Constitution and to make clear that the Fourteenth Amendment’s protection applies to unborn children. We support the Life at Conception Act. We oppose the use of public revenues and/or facilities for abortion or abortion–related services. We support the elimination of public funding for organizations that advocate or support abortion. We are resolute regarding the reversal of Roe v. Wade. We affirm our support for the appointment and election of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life. We insist that the U.S. Department of Justice needs to prosecute hospitals or abortion clinics for committing induced labor (live birth) abortion. We are opposed to genocide, euthanasia, and assisted suicide. We oppose legislation allowing the withholding of nutrition and hydration to the terminally ill or handicapped. Until our final goal of total Constitutional rights for the unborn child is achieved, we beseech the Texas Legislature in consideration of our state’s rights, to enact laws that restrict and regulate abortion including:
1. parental and informed consent;
2. prohibition of abortion for gender selection;
3. prohibition of abortion due to the results of genetic diagnosis
4. licensing, liability, and malpractice insurance for abortionists and abortion facilities;
5. prohibition of financial kickbacks for abortion referrals;
6. prohibition of partial birth and late term abortions; and
7. enactment of any other laws which will advance the right to life for unborn children.
Sonograms – We urge the Texas legislature in its next biennial session to enact legislation requiring a sonogram be performed and offered as part of the consent process to each mother seeking an elective abortion.
Harassing Pregnancy Centers– We urge legislation to protect pregnancy centers from harassing ordinances to require pregnancy centers to post signs in violation of their Constitutional rights. We further oppose any regulation of pregnancy centers in Texas which interfere with their private, charitable business.
Choose Life – We ask the Legislature to provide Texans opportunity to purchase “Choose Life” license plates.
Parental Consent– We call on the Legislature to require parental consent for any form of medical care to minors. We urge electoral defeat of judges who through judicial activism seek to nullify the Parental Consent Law by granting bypasses to minor girls seeking abortions. We support the addition of a legislative requirement for the reporting of judicial bypasses to parental consent on an annual basis to the Department of State Health Services and such reports shall be made available to the public. Further, we encourage the Congress to remove confidentiality mandates for minors from family planning service programs operating under Title X of the Public Health Services Act and Medicaid.
Protection of Women’s Health– Because of the personal and social pain caused by abortions, we call for the protection of both women and their unborn children from pressure for unwanted abortions. We commend the Texas Legislature for the passage of the Woman’s Right to Know Act, a law requiring abortion providers, prior to an abortion, to provide women full knowledge of the physical and psychological risks of abortion, the characteristics of the unborn child, and abortion alternatives. We urge the state government and the Department of State Health Services to ensure that all abortion providers are in compliance with this informed consent law and to ensure that all pregnancy centers and other entities assisting women in crisis pregnancies have equal access to the informational brochures created by the Department of State Health Services.
Alternatives to Abortion– We urge the Department of State Health Services to provide adequate quantities of The Woman’s Right to Know Resource Directory to anyone that works with pregnant women.
RU 486 – We urge the FDA to rescind approval of the physically dangerous RU-486 and oppose limiting the manufacturers’ and distributors’ liability.
Morning After Pill– We oppose sale and use of the dangerous “Morning After Pill.”
Gestational Contracts– We believe rental of a woman’s womb makes child bearing a mere commodity to the highest bidder and petition the Legislature to rescind House Bill 724 of the 78th Legislature. We support the adoption of human embryos and the banning of human embryo trafficking.
Unborn Child Pain Protection – We support legislation that requires doctors, at first opportunity, to provide to a woman who is pregnant, information about the nervous system development of her unborn child and to provide pain relief for her unborn if she orders an abortion. (Language added here to prohibit abortions after 20 weeks.)
Unborn Victims of Violence Legislation– We urge the State to ensure that the Prenatal Protection Law is interpreted accurately and consider the unborn child as an equal victim in any crime, including domestic violence.
Abortion Clinics – We propose legislation that holds abortion clinics to the same health regulations as other medical facilities and that subjects clinics to the same malpractice liabilities. We oppose any public funding for Planned Parenthood or other organizations/facilities that provide, advocate or promote abortions.
Abortion Requirements for Hospitals– We propose legislation that entitles hospitals to refuse to perform abortions because government has no moral authority to require such an abortion.
Conscience Clause– We believe that doctors, nurses, pharmacists, any employees of hospitals and insurance companies, health care organizations, medical and scientific research students, and any employee should be protected by Texas law if they conscientiously object to participate in practices that conflict with their moral or religious beliefs, including but not limited to abortion, the prescription for and dispensing of drugs with abortifacient potential, human cloning, embryonic stem cell research, eugenic screenings, euthanasia, assisted suicide, and the withdrawal of nutrition and hydration. We call on the Texas Legislature to pass legislation to strengthen and clarify the current conscience clause in the Occupational Code to include the above-mentioned persons and practices. We further encourage legislation that requires hospitals and clinics to inform all health care personnel of their right to refuse to become involved in abortion or euthanasia, and their protection from prosecution and retaliation under Texas law.
Fetal Tissue Harvesting – We support legislation prohibiting experimentation with human fetal tissue and prohibiting the use of human fetal tissue or organs for experimentation or commercial sale. Until such time that fetal tissue harvesting is illegal, any product containing fetal tissue shall be so labeled.
Stem Cell Research– We oppose any legislation that would allow for the creation and/or killing of human embryos for medical research. We encourage stem cell research using cells from umbilical cords, from adults, and from any other means which does not kill human embryos. We oppose any state funding of research that destroys/kills human embryos. We encourage the adoption of existing embryos. We call for legislation to withhold state and/or federal funding from institutions that engage in scientific research involving the killing of human embryos or human cloning.
Human Cloning– Each human life, whether created naturally or through an artificial process, deserves protection. We confirm that somatic cell nuclear transfer (SCNT) is the process by which a human being is cloned, and that SCNT creates a unique human being with the same properties of a human embryo created through the union of sperm and egg. We seek a ban on human cloning for reproductive purposes (where a cloned human embryo, created through SCNT, is implanted in a womb and the human clone is birthed). We also seek a ban on research cloning (where a cloned human embryo, created through SCNT, is created, grown in the laboratory, and then destroyed when its stem cells are extracted for research purposes). Furthermore, criminal penalties should be created and experimenters prosecuted who participate in the cloning of human beings. No government or state funding should be provided for any human cloning.
Patient Protection– We support patients’ rights by calling on the state legislature to amend the Advance Directive Act to establish due process of law and ensure that a physician’s decision to deny life saving treatment against the patient’s will or advance directive is not due to economic or racial discrimination or discrimination based on disability. We also support the passage of legislation to amend the Advance Directive Act by requiring hospitals intending or threatening to withdraw life-sustaining treatment against the patient’s wishes or their advance directive to continue all treatment and care for such patients pending transfer to another facility.
Gene Manufacturing – We support a ban on research that alters human DNA in living human beings at any stage of life, including the altering of artificial, manufactured, and natural genes and chromosomes.
The final language from the 2012 Platform is posted here. The portions in red are the amendments I came prepared to present to the Committee. The amended and substituted 2010 language can be found here for comparison.
PROTECTING INNOCENT HUMAN LIFE
Right To Life – All innocent human life must be respected and safeguarded from fertilization to natural death; therefore, the unborn child has a fundamental individual right to life, which cannot be infringed.
Roe v. Wade – We are resolute regarding the reversal of Roe v. Wade.
Human Life Amendment – We affirm our support for a Human Life Amendment to the Constitution.
Natural Life – We support the sanctity of human life and therefore, oppose genocide, euthanasia, and assisted suicide.
Abortion – We support the elimination of public funding or the use of public facilities to advocate, perform or support elective abortions.
Abortion Legislation – Until our final goal of total constitutional rights for the unborn child is achieved, we support laws that restrict and regulate abortion including, but not limited to :
1. parental and informed consent;
*Add #2 . Prohibition of elective abortion in the second trimester in light of the ability of the unborn child to feel pain and current viability at 21 weeks.
2. prohibition of abortion for gender selection;
3. prohibition of abortion due to the results of genetic diagnosis
4. licensing, liability, and malpractice insurance for abortionists and abortion facilities;
5. prohibition of financial kickbacks for abortion referrals;
6. prohibition of partial birth late term abortions
7. the prohibition of the manufacturing and sale of abortifacients;
8. new causes of action for so called “wrongful birth” or “wrongful life”; and
9. enactment of any other laws which will advance the right to life for unborn children.
Candidate Support – The Republican Party of Texas should provide financial support only to those candidates who support the right to life planks.
Alternatives to Abortion – We urge the Republican Party of Texas to assist in educating the public regarding alternatives to abortion.
Human Embryos– We support the adoption of human embryos and the banning of human embryo trafficking.
Conscience Clause – All persons and all entities have the right of conscience and should be protected under Texas law if they conscientiously object to participate in practices that conflict with their moral or religious beliefs.
Fetal Tissue Harvesting and Stem Cell Research – We support legislation prohibiting experimentation or commercial use of human fetal tissue,which requires or is dependent upon the destruction of human life. We encourage stem cell research using cells from umbilical cords, from adults, and from any other means that does not kill human embryos.
Human Cloning – We seek a ban on human (cloning).
Patient Protection – We support patients’ rights by calling on the state legislature to amend the Advance Directive Act to allow more time for families to prepare an participate. We also support the passage of legislation to amend the Advance Directive Act by requiring continuing current treatment for patients pending transfer to another facility.
I submitted an editorial to the Fort Worth Star-Telegram which they have titled, “Nuckols: Navigating healthcare’s difficult decisions.” It was published March 28, 2013, but I can’t tell whether it’s in the dead-tree version. (In case you ever wondered, no one notifies the author when a piece like this or a letter to the editor is published. I think it increases their readership, all of us checking back to see whether we made it to print.)
The paper had published a very biased and poorly written op-ed calling the Texas Advanced Directive Act, “the Texas Futile Care act.” Although the Star-Telegram corrected this one error, the piece has unfortunately been picked up by several other websites.
The editors edited: giving the piece its name and changing all my references to “TADA” and “the Act” to “the act.” They also did some research and posted a little biography that I was surprised to see. (I wouldn’t have been foolish or brave enough to give these credentials without checking in with the people they might have affected.)
I do wish that the paper had researched the original article more thoroughly. It’s so bad that I decided not to link to it.
I was privileged, back in 2006 and 2007, to sit in on a couple of year’s worth of the meetings that I mention in the article. We all worked diligently to come up with some compromise other than going to court on every disputed case. Because our compromise fell apart at the very last minute, families are still faced with only 48 hours between the notice that an ethics committee has been called and ten days’ notice if transfer is pending. I hope we can come to an agreement in 2013 to make these decisions a little easier, while keeping them out of court and in the realm of physicians’ medical judgment.