Tax dollars could be spent to “nudge” older people to agree to premature death under Senate bill

By Burke J. Balch, J.D., director, Powell Center for Medical Ethics at the National Right to Life Committee

ElderlycancerLast week, U.S. Senators Mark R. Warner (D-Va.) and Johnny Isakson (R-Ga.) introduced S. 1549, the Care Planning Act of 2015, to use federal tax dollars to pay health care professionals to counsel older people in deciding whether to accept or reject life-preserving medical treatment, food and fluids.

On its face, S. 1549 purports to promote neutral, fully informed “advance care planning” that will assist patients to implement their own values in legally valid directives. Unfortunately, however, there is abundant evidence, documented in the March 2015 NRLC report “The Bias Against Life-Preserving Treatment in Advance Care Planning,” that a combination of cost pressures and the ideological commitment of a significant number of health care providers to hastening death for those deemed to have a “poor quality of life” would in practice lead to many federally funded advance care planning sessions being used to exercise subtle – or not-so-subtle – pressure to agree to reject life-preserving treatment.

Entities conducting such programs openly boast of how much money they have saved insurance companies by inducing patients to reject expensive life-saving medical treatment. Advocates believe it will save Medicare money as well.

The pervasive focus of the Institute of Medicine September 2014 report “Dying in America” is summed up in its statement, “Because most people who participate in effective advance care planning choose maximizing independence and quality of life over living longer, advance care planning can potentially save health care costs . . . .” (What this statement effectively means is that the Institute of Medicine report authors expect that “most people” receiving advance care planning counseling will come to agree they would rather die than live with dependence or a poor quality of life, and therefore will agree to forego expensive treatment that could preserve their lives when they are “not worth living.”)

If advance care planning sessions were to be federally funded as proposed by the Care Planning Act of 2015, then no matter how emphatically the bill language calls for balance, accuracy, and respect for individual patients’ values and wishes, there could be no sufficient safeguard to ensure that federal tax dollars subsidize only planning for the use or rejection of life-preserving measures that is conducted in a truly neutral way. There is no realistic way adequately to monitor such care planning sessions among patients and health care personnel in what would necessarily be private and confidential interactions.

National Right to Life, along with many others, supports the use of advance directives by which individuals may indicate their wishes regarding medical treatment should they become incapable of making health care decisions; indeed, it makes available “Will to Live” versions for every state at www.nrlc.org/medethics/willtolive/.

It has made clear that it is willing to work with Members of Congress to implement measures to develop aids to advance care planning with sufficient safeguards to ensure they provide fully informed consent and are not structured to dissuade those using them from choosing life-preserving measures. However, National Right to Life opposes S. 1549 since without proper safeguards, advance care planning can be and is already being used to nudge patients to reject life-saving treatment they would otherwise want both to cut costs, and also due to a pervasive “quality of life” ethic.

During the debate over the enactment of Obamacare, there was considerable controversy over the inclusion in an early version of the bill of funding for health care providers to be paid to conduct “advance care planning” for patients under Medicare. That provision was not included in the ultimately enacted legislation because of an outcry by those who feared it would be used to push people into agreeing to forego expensive health care. S. 1549, revives this provision as a free-standing bill. Subsequent developments should intensify, rather than calm, the well-founded fears of older people and those with disabilities that in practice government-funded and promoted planning sessions are likely to be less about actually discovering and applying their own wishes than about nudging them to accept premature deaths.

In addition to creating pro-life concerns over nudging patients to reject treatment, S. 1549 contains a very dangerous provision that would in effect authorize health care providers who believe it immoral to preserve the lives of those with a poor quality of life to deny life-preserving treatment against the express will of a patient or surrogate. Unfortunately, in both medical literature and increasing practice, moral and ethical convictions are frequently cited to justify involuntary denial of life-saving treatment, and even assisted food and fluids, against patients’ wishes.

Another dangerous provision of the law would have the effect of invalidating strong patient-centered protective laws. A section of S. 1549 says that when someone does not have an advance directive in the state in which he or she is a patient, documents that may have been filled out in other states are to be implemented. This provision would override any state laws that ensure informed consent to the rejection of life-saving measures. Thus, for example, it would invalidate an Oklahoma law that requires that people are cannot be starved or dehydrated if they did not explicitly say that is what he/she wished.

The National Right to Life Committee is urging that Senators be contacted by their constituents asking them to oppose S. 1549, the Care Planning Act of 2015.

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