DESPITE ATTACKS ON ELDERLY AND THOSE WITH DISABILITIES, OKLAHOMA ENACTS BAR TO DISCRIMINATORY INVOLUNTARY DENIAL OF TREATMENT

By Burke J. Balch, J.D., director, National Right to Life’s Powell Center for Medical Ethics

Oklahoma Governor Mary Fallin

Oklahoma Governor Mary Fallin

Oklahoma Governor Mary Fallin on April 26 signed into law the Oklahoma Nondiscrimination in Treatment Act after it passed the state Senate 41-2 and the House 85-11.

When it takes effect November 1, if a patient or the patient’s legal representative chooses life-preserving medical treatment food or fluids, the law will prevent health care providers from denying that treatment “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.”

The protection against forcing people to die against their will based on their age, disability or illness provoked vociferous opposition. An April 24 article on the bill in the Tulsa World stimulated many online attacks on the legislation.

Okierat wrote, “When you are old and sick you are a parasite and should not have a choice in your life.” Iamarock said, “If doctors agree that life will not be qualitatively improved with aggressive treatment then it can and ethically should be withheld.”

A number objected to the cost of protecting the lives of those with disabilities. Major Beige posted, “This bill would secure your right to live three more months as a vegetable if your decision-maker decides to override your doctor’s best medical advice. It should make medical debts incurred from such care non-dischargeable through bankruptcy. If you’re going to extend life at any cost, you be prepared to pay the cost.”

NewsAddict wrote, “I certainly hope the Governor considers the potential costs to State Medicare for this. It’s entirely possible that a patient was or will be a nursing home patient. . . . [I]t will be Medicare, insurance, and Medicare that will foot the bill.”

Belying claims by some that evidence is lacking of commonplace denial of treatment needed to prevent death for those with disabilities or deemed too old, the Tulsa World article quoted Dr. Jennifer Clark as saying, “I know if this law had existed before I came here, I wouldn’t have come here, and I know many of my colleagues who are in advanced specialities, such as cardiovascular surgery, general surgery, cardiology and so forth, would question about leaving.”

Oklahoma is the first state to enact protective legislation derived from a model based on anti-discriminatory language in federal law. “Quality of life” bioethicists began promoting living wills and other advance directives in the 1970’s using the argument that medical paternalists were forcing people to stay alive against their will. Now many of them strongly argue that medical paternalism is justified when people doctors deem to have a poor quality of life dare to consider their own lives worth living and seek life-saving medical treatment, food, and fluids.

As documented in the Powell Center report, “Will Your Advance Directive Be Followed?”  since the 1990’s hospital ethics committees have increasingly been applying “futility protocols” under which patients desiring life-preserving treatment are regularly denied it and forced to die against their will.

The Oklahoma law, modeled on civil rights laws, is intended to prevent such denial when – as is typically the case – it is based on the view that devalues life with a disability or the life of someone of advanced age.