Posted by Kenneth Anderson:
Washington Post's Charles Lane on Section 1233, Advance Care Planning
Consultation:
http://volokh.com/archives/archive_2009_08_02-2009_08_08.shtml#1249752171
Columnist Charles Lane - full disclosure, an old friend and a
journalist who I have admired going all the way back to his Central
America days in the 1980s - has a striking piece in today's Washington
Post, [1]"Undue Influence: the House Bill Skews End-of-Life Counsel."
About a third of American adults have some form of living wills,
advance care directives, and so on, but, notes the column:
When seniors who don't have them arrive in a hospital terminally
ill and incapacitated, families and medical workers wrestle with
uncertainty -- while life-prolonging machinery runs, often at
Medicare's expense. This has consequences for families and for the
federal budget.
Enter Section 1233 of the health-care bill drafted in the
Democratic-led House, which would pay doctors to give Medicare
patients end-of-life counseling every five years -- or sooner if
the patient gets a terminal diagnosis.
On the far right, this is being portrayed as a plan to force
everyone over 65 to sign his or her own death warrant. That's
rubbish. Federal law already bars Medicare from paying for services
"the purpose of which is to cause, or assist in causing," suicide,
euthanasia or mercy killing. Nothing in Section 1233 would change
that.
The [2]actual text of section 1233 can be found here via Thomas, the
Library of Congress data base (if the link doesn't get you to section
1233, search the data base using H.R. 3200, then go to section 1233).
But as the column goes on to point out, the bill creates an undue
conflict of interest for doctors. It is not just, as Lane says, that
Section 1233 "addresses compassionate goals in disconcerting proximity
to fiscal ones." (Mickey Kaus has made this same point.) The column
raises a much more specific concern and conflict of interest for
doctors:
Though not mandatory, as some on the right have claimed, the
consultations envisioned in Section 1233 aren't quite "purely
voluntary," as Rep. Sander M. Levin (D-Mich.) asserts. To me,
"purely voluntary" means "not unless the patient requests one."
Section 1233, however, lets doctors initiate the chat and gives
them an incentive -- money -- to do so. Indeed, that's an incentive
to insist.
Patients may refuse without penalty, but many will bow to
white-coated authority. Once they're in the meeting, the bill does
permit "formulation" of a plug-pulling order right then and there.
So when Rep. Earl Blumenauer (D-Ore.) denies that Section 1233
would "place senior citizens in situations where they feel
pressured to sign end-of-life directives that they would not
otherwise sign," I don't think he's being realistic.
What's more, Section 1233 dictates, at some length, the content of
the consultation. The doctor "shall" discuss "advanced care
planning, including key questions and considerations, important
steps, and suggested people to talk to"; "an explanation of . . .
living wills and durable powers of attorney, and their uses" (even
though these are legal, not medical, instruments); and "a list of
national and State-specific resources to assist consumers and their
families." The doctor "shall" explain that Medicare pays for
hospice care (hint, hint).
Admittedly, this script is vague and possibly unenforceable. What
are "key questions"? Who belongs on "a list" of helpful
"resources"? The Roman Catholic Church? Jack Kevorkian?
Ideally, the delicate decisions about how to manage life's end
would be made in a setting that is neutral in both appearance and
fact. Yes, it's good to have a doctor's perspective. But Section
1233 goes beyond facilitating doctor input to preferring it.
Indeed, the measure would have an interested party -- the
government -- recruit doctors to sell the elderly on living wills,
hospice care and their associated providers, professions and
organizations. You don't have to be a right-wing wacko to question
that approach.
In a separate post, I want to consider something that the column
mentions in passing - that, according to the section's backers, it is
merely "trying to facilitate choice -- even if patients opt for
expensive life-prolonging care." I'll try to find a moment to post on
what I see as the relationship between that and the current love
affair (I share the love, in part, to be sure) with behavioral
economics.
In one sense, in other words, section 1233 can be understood as a
[3]Nudgy move to reset the default rules. The question then becomes,
is it merely trying to set the default rules for addressing a topic
that people would rather skip addressing - end of life issues, living
will issues, health care directives - or is it a nudge for getting
people, including ones now terminally ill, to shift their social
default settings on whether or not to consume expensive resources,
while putting it in the context of seemingly making your own decision
about it? They are, clearly, two quite different propositions - and
both of them amenable to the Nudginess setting of default rules
analysis and, depending on how one sees it, either "facilitation" or
"manipulation."
This question is implied by Chuck Lane's column, because he is
pointing to a conflict of interest on the part of the provider of this
advice, on which the distinction in part turns. But it also goes a
long way further than the Post column, to a discussion of
Nudge-the-book and the ways in which it can be either a means of
facilitating the choices that people would rationally make but can't
quite step up to the plate to make, or else a means of manipulating
human psychology toward public policy ends that someone else has
decided are the rational ends, whether people would agree to them or
not. The principles of Nudge seem disconcertingly applicable to either
agenda.
I'm a big fan of it as a facilitation process. I even buy the idea
that there is a form of justified "libertarian paternalism" that is
not merely an oxymoron or simple paternalism. But the one, libertarian
paternalism and the facilitation of the choices that people will make
for themselves and consider themselves rational for doing so, slides
really, really easily into the other, paternalism, and manipulating
choices. All it really takes is an apparatus of public policy and
disconnected group of technocrats willing to decide the things the way
that presumably All Rational People Would Decide If Only They Were
[fill in the blank with your favorite technocrat - e.g., Ken
Anderson]. (I'll try to get back to this, but probably not soon.)
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/08/07/AR2009080703043.html
2. http://thomas.loc.gov/cgi-bin/query/F?c111:1:./temp/~c111yReBCV:e513253:
3.
http://www.amazon.com/Nudge-Improving-Decisions-Health-Happiness/dp/014311526X/ref=sr_1_1?ie=UTF8&s=books&qid=1249750306&sr=8-1
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