Decreasing the Surplus Population

Everybody agrees it wasn't okay for Scrooge to hate the poor and the helpless. It wasn't okay for him to be in favor of prisons and workhouses. Most of all, it wasn't okay for him to be in favor of decreasing the "surplus population" of the suffering poor.

But what is unacceptable for a character of fiction is apparently acceptable for the people's elected representatives. And so we have the under-the-radar, blandly-named S1114, which passed unanimously in the Idaho Senate on March 3d. This bill would allow the withholding of treatment in cases where such treatment is deemed "medically inappropriate" or "futile" -- notwithstanding the directive, advance or otherwise, of a patient or his representative. Consider the following new language proposed to be added to existing law (emphases added):

WITHHOLDING OR WITHDRAWING HEALTH TREATMENT – VOLUNTARY ETHICS COMMITTEE REVIEW.

(1) If the attending physician believes that the treatment requested by a patient, the patient’s advance directive or the patient’s surrogate decision maker is medically inappropriate or futile, the attending physician or health care facility in which the patient is admitted may request that an ethics committee of the health care facility review the facts and circumstances to determine if the requested treatment is medically inappropriate or futile.

(2) The ethics committee shall be comprised of at least two (2) physicians, and such other persons as the health care facility shall appoint. The attending physician may appear at the ethics committee meeting to explain the facts and circumstances of the case but may not participate as a member of the ethics committee.

(3) The patient or his legally authorized surrogate decision maker shall be given the opportunity to attend the ethics committee meeting and explain the basis for his or her request for treatment. The patient or surrogate decision maker shall be given prior notice of the ethics committee meeting at least twentyfour [sic] (24) hours before the ethics committee meeting unless the patient or surrogate decision maker waives such prior notice. The patient or surrogate decision maker shall not be entitled to be present during the ethics committee’s deliberations. [Sounds rather like a criminal proceeding, doesn't it?]

The ethics committee shall provide to the patient or surrogate decision maker a written explanation of the ethics committee’s determination.

(4) If the ethics committee agrees with the attending physician that the treatment requested by the patient, the patient’s advance directive or surrogate decision maker is medically inappropriate or futile, the attending physician and health care facility shall take reasonable action to assist the patient or surrogate decision maker to arrange the patient’s transfer within fifteen (15) days to another health care provider selected by the patient or surrogate decision maker who is willing to assume the treatment of the patient. The health care facility shall provide reasonably necessary lifesustaining [sic] treatment within the capacity and capability of the health care facility until the patient is transferred or until the expiration of the fifteen (15) day period described above, whichever occurs first. Following the patient’s transfer or upon expiration of the fifteen (15) day period described above, whichever occurs first, the attending physician and health care facility shall not be obligated to provide additional treatment that has been determined to be medically inappropriate or futile by the ethics committee. The patient or his surrogate decision maker shall remain responsible for the costs incurred in transferring the patient to another health care provider in addition to the cost of any health care provided prior to the transfer.

(5) If the patient or surrogate decision maker disagrees with the ethics committee determination, the patient or surrogate decision maker shall cooperate with the health care facility to arrange the transfer of the patient to another health care provider within fifteen (15) days following the ethics committee determination. The patient or surrogate decision maker may petition the district court in which the health care facility is located to lengthen the time to effect an appropriate transfer; provided however, that the district court shall extend the time only if the court finds, by a preponderance of the evidence, that there is a reasonable probability that the patient or surrogate decision maker will be able to transfer the patient to another qualified health care provider who is willing to provide the treatment requested by the patient or surrogate decision maker within the extension requested by the patient or surrogate decision maker.

(6) If an ethics committee has determined that the requested treatment is medically inappropriate or futile, but the patient is later readmitted to the health care facility within six (6) months following such ethics committee determination, the attending physician may rely on the prior ethics committee determination and withhold or withdraw treatment consistent with the prior ethics committee determination if the attending physician and one (1) physician member of the ethics committee determine that the patient’s condition either has not improved or has deteriorated since the prior ethics committee determination and that the prior ethics committee determination still applies to the patient’s condition, and they document their conclusion in the medical chart.

Notice, however, the ease with which patients may be -- shall we say -- permitted to die. A "surrogate decision maker" -- that is, a person empowered to make care decisions on behalf of a patient who is incapable of making decisions for himself --

shall not have authority to consent to or refuse health care contrary to the patient’s advance directives or wishes expressed by the patient while the patient was capable of consenting to his own health care[.]

Furthermore, a court-appointed guardian of a patient MAY consent to the withholding or withdrawal of treatment ("other than appropriate nutrition, hydration or medication") where:

(b) The respondent [patient] is chronically and irreversibly comatose;
(c) The provision of such treatment would merely prolong dying, would not be effective in ameliorating or correcting all of the respondent’s lifethreatening [sic] conditions, or would otherwise be futile in terms of the survival of the respondent; or
(d) The provision of such treatment would be virtually futile in terms of the survival of the respondent, and the treatment itself under such circumstances would be inhumane.

Notice, too, that although a court-appointed guardian may not withhhold "appropriate" nutrition and hydration; and although the bill in its terms purports not to legalize or condone euthanasia, the bill clearly contemplates that "artificial nutrition and hydration" -- defined as "supplying food and water through a conduit, such as a tube or intravenous line, where the recipient is not required to chew or swallow voluntarily, [not including] assisted feeding, such as spoon feeding or bottle feeding" -- may be withdrawn:

Individuals caring for a patient for whom artificial lifesustaining [sic] procedures or artificially administered nutrition and hydration are withheld or withdrawn shall provide comfort care as defined in section 39-4502, Idaho Code.

"Comfort care" is defined as "treatment and care to provide comfort and cleanliness" as well as "dignity. It is not clear how this is possible for persons who are dying of hunger and thirst, but then can we expect the legislature to think of everything?

For the moment, let's pass over the utter moral bankruptcy of this proposed legislation and turn to some practical matters. Is this proposed legislation less likely to create more problems than it solves, or more likely? Is it less likely to spawn endless litigation -- notwithstanding the immunity clauses, which are not set forth here -- or more?

The late Fr. Richard Neuhaus once made the point (in Death on a Friday Afternoon) that a mark and effect of our fallen nature is that we make things so much harder than they need to be, or should be. Couldn't we take most of the complications out of these issues by just simply hewing to the Natural Law that has been handed down to us, rather than trying to force the square pegs of life and death and their attendant realities into the round holes of our whims?

Wouldn't it be much, much, much easier to just restore LIFE as the default setting?

H/T The Redoubtable One.