By Jennifer Popik, JD, Robert Powell Center for Medical Ethics
Jennifer Popik, JD
On March 10, 2014, the Oklahoma House and Senate, on near unanimous votes, approved the Medical Treatment Laws Information Act, which is designed to protect patients from denial of life-preserving care caused by a health-care provider’s lack of awareness of Oklahoma’s existing protective laws.
The House voted 88-1 in favor of HB 2603 while the Senate voted 44-0 in favor of SB 1702. Since each legislative chamber has passed identical bills, but with different bill numbers, one or the other of the bills must still be voted on by the other chamber, after which it should go for signature by Gov. Mary Fallin (R).
Oklahoma has some of the most protective patient laws in the nation. Recently, the state became the first to prevent the involuntary denial of treatment using an anti-discrimination approach drawn from Federal law.
Sadly, the involuntary denial of treatment, despite clear advance directives, is a growing problem, not only in Oklahoma, but across all states. There is growing evidence that some in the health-care community (including the medical, nursing, hospital, and nursing-home staff) were not aware of some of the provisions of state law related to the provision of life-preserving care.
In the wake of the tragic 2005 case of Terri Schiavo, many authorities urged Americans to complete advance directives. Every state authorizes these legal documents, which allow a person to specify whether and under what circumstances she or he wants life-preserving medical treatment, food or fluids when no longer able to make health care decisions.
However, the laws of all but twelve states may allow doctors and hospitals to disregard advance directives when they call for treatment, food, or fluids. Increasingly, health care providers who consider a patient’s “quality of life” too low are denying life-preserving measures against the will of patients and families – and the laws of most states provide no effective protection against this involuntary denial.
Most states with laws protecting against involuntary denial of treatment essentially require health care providers unwilling to allow their patients to life to provide directed life-saving treatment pending transfer to a willing health care provider. Last spring, when Gov. Fallin signed the Oklahoma Nondiscrimination in Treatment Act after it passed the legislature with huge margins, Oklahoma became the first state to enact a new approach derived from anti-discrimination language in federal law.
Under the new law, 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.”
“Quality of life” bioethicists began promoting living wills and other advance directives in the 1970s using the argument that medical paternalists were forcing people to stay alive against their will.
But 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 1990s 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.
In addition, Oklahoma has strong laws on the provision of food and fluids. Long-standing law in the state, the “Hydration and Nutrition for Incompetent Patients Act,” presumes that patients who are unable to speak for themselves and whose wishes are unknown ought to be provided with nutrition and hydration. There are exceptions for those imminently dying or for whom these measures would not preserve life.
With this growing problem of denial of treatment, Oklahoma has gone to great lengths to protect the vulnerable. You can find the status of your own state law here, and urge your representatives to protect the rights of you and loved ones to receive desired treatment and have access to life-preserving food and fluids.