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Posted on March 1, 2013 at 12:50 PM

Hey! Do you remember,starting in 2009,the political fury, concern and cries about “Death Panels” in the United States as the Affordable Care Act (“Obamacare”) was being debated? If you don’t..where were you? Wikipedia has an excellent article on this topic to refresh your memory.

My understanding of what the public considers as a “death panel” would be a group of individuals not related to any specific patient but who becomes responsible to make a decisions as to what life-supportive treatment or other treatment would be allowed to be started or terminated for a patient. “Death” is used in the name since it is felt that death could well be the outcome of their decision. One way or another, it was this group “pulling the plug” on the patient’s life-support.

An example of such a concern prior to the Affordable Care Act was the matter of the Texas statute Section 166.046 passed in 1999. The statute stated “If an attending physician refuses to honor a patient’s advance directive or a health care or treatment decision made by or on behalf of a patient, the physician’s refusal shall be reviewed by an ethics or medical committee. The attending physician may not be a member of that committee. The patient shall be given life-sustaining treatment during the review.” The patient or patient’s surrogate may attend the meeting and receive a written explanation of the decision reached.  If the physician, patient or surrogate don’t agree with the decision, then the physician must attempt to transfer the patient to another physician or institution who will agree with the decision or follow the request of the patient or surrogate. Life-supportive treatment must be continued for 10 days after the decision or prolonged by court action. Following the letter of the law, provides legal immunity to the physician and hospital’s ethics committee if the patient dies. There has been many patient cases decided in this manner under this Texas law along with considerable controversy.

I can’t speak for Texas law and behaviors, but we, in California, have a similar law in the Probate Code regarding following patients’ instructions or decisions:

 “Section 4735. A health care provider or health care institution may decline to comply with an individual health care instruction or health care decision that requires medically ineffective health care or health care contrary to generally accepted health care standards applicable to the health care provider or institution
Section 4736. A health care provider or health care institution that declines to comply with an individual health care instruction or health care decision shall do all of the following:
(a) Promptly so inform the patient, if possible, and any person then authorized to make health care decisions for the patient.
(b) Unless the patient or person then authorized to make health care decisions for the patient refuses assistance, immediately make all reasonable efforts to assist in the transfer of the patient to another health care provider or institution that is willing to comply with the instruction or
decision. (c) Provide continuing care to the patient until a transfer can be accomplished or until it appears that a transfer cannot be accomplished. In all cases, appropriate pain relief and other palliative care shall be continued.”

Notice in the Code there is no mention of a final decision to be made by an ethics committee. An ethics committee would meet, however, to allow the patient or surrogate an opportunity to understand and counter the physician’s view and for the committee, beyond moderating the meeting, to establish whether the physician’s decision is appropriate with regard to current law and ethical consensus.  The medical decision to reject the patient’s request is solely that of the physician.

I might add, that in California, hospital ethics committees may participate in a similar way with regard to expressing current law and ethical consensus in cases where the physician intends to terminate life-supportive treatment in a patient who has had no Advance Directive, no present capacity to make medical decisions and not expected to recover that capacity and, after searching with due diligence unable to find any relatives or friends who could contribute to the understanding of the patient’s desires.

Defending only hospital ethics committees, as a current member and former chairperson, based on what I explained above, I would reject the view that our committee is a “death panel”. We, as a committee, have no capacity to make medical decisions about appropriate therapy for a specific patient. We can listen to all sides and explain what is ethical and legal.  If the physician’s view is ethical and legal, then, as a hospital ethics committee, we can support his or her decision.

 But, finally, how about you? Do you think that “Death Panels” exist in our United States medical system? ..Maurice.

Graphic: From Google Images.

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