Health Policy, Politics, and Professional Ethics

Leah L. Curtin

“To see what is right and not do it is want of courage.”

—Confucius

To frame a discussion of policy, politics and ethics, I will present some actual situations: a “no-admit” list, dying with dignity, and the passage of the Patient Protection and Affordable Care Act of 2010.

Case Study I: A “No-Admit” List

A graduate student asked about the use of a no-admit list and described the following situation. A 29-year-old male patient with diagnoses of bipolar disorder, substance use disorder, and antisocial personality disorder comes to the emergency department (ED) one midnight shift under the law enforcement Baker Act. This law permits a 72-hour involuntary placement for psychiatric assessment. The law says the patient is to be admitted to the nearest Baker Act receiving facility. The ED staff provided me with the following unsolicited information: “Get rid of this guy fast; he’s trouble”; the patient is an “abuser of the system,” they say, and he has assaulted several health care workers. He is a drain on overextended resources because his behavior requires constant intervention to maintain safety.

I find in our assessment office that the patient is on a “do not admit” list. The unit nursing staff on duty that night provides me with the information that this patient assaulted a nurse on one of the adult psychiatric units and was jailed and charged for this offense. The nurse sustained permanent damage to her knee and currently has a restraining order against this patient. At this time, the patient is calm and cooperative during my assessment—other than making continuous, aggressive requests to smoke and several attempts to leave the ED without an escort to do so. The psychiatrist on call was new to this facility, as was I at the time, so we were unaware of the patient’s history and past treatment record. In addition, the psychiatrist and I had a previous positive professional relationship at another facility, and I knew that he respected my recommendations. Before calling him, I make inquiries at area psychiatric units and find out that earlier in the day this patient left treatment at a facility 70 miles away and is not welcome back because of his aggressive behavior. The local community mental health facility also is not amenable to a referral because this patient assaulted personnel there in the past. My colleague at the community center says that this patient has “burned all his bridges in a hundred mile radius.”

I now have a great deal of information from various sources about this patient. To pose this question realistically and succinctly, do I say, “Doc, this guy is bad news and the unit will have your head and mine if we admit him” or “Doc, this patient is suicidal with a plan and we have the closest bed”? What about the law *? How legal is a “do not admit” list, and what are my ethical obligations particularly when administration is aware of this patient’s situation and has opted not to address options that might break the cycle of continued abuse of acute services and the abuse of resources this facilitates?

Case Study II: Death with Dignity

The Oregon Health Department published an accounting of Oregon’s experience with the first Death with Dignity Act in the nation, excerpts from which follow:

Physician-assisted suicide (PAS) has been legal in Oregon since November 1997, when Oregon voters approved the Death with Dignity Act (DWDA) for the second time … In response to a lawsuit filed by the State of Oregon on November 20, 2001, a U.S. district court issued a temporary restraining order against Attorney General Ashcroft’s ruling pending a new hearing. On April 17, 2002, U.S. District Court Judge Robert Jones upheld the Death with Dignity Act. On September 23, 2002, Attorney General Ashcroft filed an appeal, asking the Ninth U.S. Circuit Court of Appeals to overturn the District Court’s ruling, which was subsequently denied on May 26, 2004 by a three-judge panel. On July 13, 2004, Ashcroft filed an appeal requesting that the Court rehear his previous motion with an 11-judge panel; on August 13, 2004, the request was denied. On November 9, 2004, Ashcroft asked the U.S. Supreme Court to review the Ninth Circuit Court’s decision and on February 22, 2005, the court agreed to hear the appeal. Arguments were held during the Supreme Court’s term beginning in October of 2005, and in a stunning blow to the Bush Administration, the Supreme Court upheld the Oregon law in January of 2006; thus Oregon’s law remains in effect.

As a result of this ground-breaking legislation as well as the court decisions, three states have abolished the common law of crimes and do not have statutes criminalizing assisted suicide (North Carolina, Utah, and Wyoming). However, 9 states criminalize assisted suicide through common law, and 34 states have statutes explicitly criminalizing assisted suicide. Only the states of Oregon and Washington permit physician-assisted suicide under carefully controlled situations (www.euthanasia.com/bystate.html).

Case Study III: Health Reform Legislation

Any discussion of health reform must include a review of human rights and a discussion of whether or not there is such a thing as a human right to health care services, and whether or not a just society would provide a legal right to such services. A human right is a just claim to an essential, universal human need. The justice of the claim is affected by (1) the universality of the need, (2) the extent to which a person can meet his or her own needs, and (3) the extent to which others can help meet these needs without compromising their own fundamental needs.1 Some argue that health care services—or at least illness care services—is not a human right; however a far larger number think that such needs can easily meet each of these criteria, at least under a variety of circumstances.²

For almost a century, presidents and members of Congress have tried and failed to provide universal health benefits to Americans. There are a few simple facts that are important: (1) the U.S. is the only industrialized country in the world that does not offer some type of universal health care; (2) each year tens of thousands of Americans lose their health care coverage due to circumstances beyond their control; and (3) the main reason that Americans file bankruptcy is outstanding medical bills.

In 2010, Congress passed, and the president signed into law, the Patient Protection and Affordable Care Act of 2010. The core of the massive law is the extension of health care coverage to 32 million Americans who now lack it, a goal to be achieved through a complex mixture of new mandates for individuals and employers, subsidies for people who can’t afford to buy coverage, consumer-friendly rules required of insurers, tax breaks, and “exchanges” to shop for health plans.

The law’s most far-reaching changes will not start until 2014, including a requirement that most Americans have health insurance—whether through an employer, a government program, or their own purchase—or pay a fine. To make that a reality, tax credits to help pay for the premiums will be provided to middle-class families, and Medicaid will be expanded to cover more people with low incomes. This law will prohibit insurance companies from putting lifetime dollar limits on policies, denying coverage for pre-existing conditions, and cancelling a policy when someone gets sick. Insurers also will have to allow parents to keep children on their plans up to age 26. For seniors, the plan will gradually close the prescription coverage gap and improve preventive care. But it also will cut funding for popular private insurance plans offered through Medicare Advantage.

The changes are to be paid for with cuts in projected government payment increases to hospitals, insurance companies, and others under Medicare and other health programs; an increase in the Medicare payroll tax for some; fees on insurance companies, drug makers, and medical device manufacturers; a new excise tax on high-value insurance plans; and a tax on indoor tanning services.

So much for substance. Now, on to process. There has been much controversy about the various proposals to reform the health care system, perhaps more about the process than the content of the legislation. A Center for Public Integrity analysis of Senate lobbying disclosure forms shows that more than 1750 companies and organizations hired about 4525 lobbyists—eight for each member of Congress—to influence health reform bills in 2009.³ Whether the reasons can be attributed to lobbying or to partisan politics, the tactics used on both sides (Republicans used lies, scare tactics, and obstructionism to block health reform,⁴ and Democrats were accused of abuse of power for using several parliamentary maneuvers⁵) raise questions about the ethics of the processes used.

The Ends and the Means

Why bring these particular situations to your attention? Principally this: Each involves a variation of the same question—that is, what means can be legitimately used to achieve an end that someone (or a political party, or even the electorate) believes to be good? We have laws that require screening, stabilizing, and treating all people who come to an ED (a good) even though it may enable abuse of the system (an evil), as in Case Study I. In Case Study III, proponents of health insurance reform are accused of “abuse of power” to provide access to care for millions of people (a good) even though it may create partisan divisions (an evil). In Case Study II, the situation is far more ambiguous and controversial because it is a generally accepted principle of both law and ethics that killing a person is wrong—and therefore encouraging suicide is wrong. Others believe that enabling medically assisted suicide is a good because it promotes personal autonomy and therefore respects the dignity of individuals facing inevitable and painful deaths. The difference is this: In Cases I and III, the law provides for a good (equity of access in both), which may occasionally produce an evil (abuse of the system); in Case II, the law enables what is generally considered an evil (killing, or suicide) in order to produce a good (autonomy and relief of suffering). This inevitably leads to a discussion of whether or not the ends can ever justify the means.

The ends-and-means argument often is explained as follows. We can cut a man open (an evil means) to save his life (a good end). We can remove a perfectly healthy kidney from one person (an evil means) to transplant it to save the life and health of another (a good end). And we admire the person who sacrifices his life (an evil means) to save the life of his friend (a good end). If our intention (to produce a good) can justify the means (doing an evil), then why can’t we torture one man (an evil means) to gain information that might save another person’s life or even the lives of many people (a good end)? Should we assure the passage of health care insurance reform (a good end) by strong-arm tactics (an evil means)?

A Few Things That must be Said

Before we get into more ticklish problems, it is important to note that cutting a person open, even to save his life, is not a good thing unless the person consents to it. Similarly one cannot “steal” one person’s kidney even to save another; rather, the consent of both donor and recipient is required. The prisoner does not choose to be tortured, although it is very tempting to justify “beating the facts out” to protect innocent lives. But hard as it is to say, if a man can be tortured on the suspicion that he may know something subversive, who is safe from governmental oppression? For we, just as they, are members of society. The price we pay for freedom and human rights is to grant them to all people, not just a favored few. And yes, it is risky, and yes, it may reduce our “efficiency” and in some cases even lead to loss of life. But the alternative is that no one has rights (i.e., just claims); rights become the privilege of a favored group, while all other individuals are utterly helpless before the power of the state.

Certainly the electorate does not consent to the corruption of the legislative process—and even if a majority did approve of bending the rules of fair engagement to ensure that a particular piece of legislation is passed, would that make it right? Would it not end up threatening the very foundations of a free society (because the foundation of a republic lies in the honesty of its processes)? What are the differences between normal legislative “wrangling” and abuse of power? What does it mean when political parties refuse to participate in the legislative process and/or use blatant scare tactics? What is legitimate dissent, and what is a refusal to accept democratic outcomes unless you happen to agree with them? Without civil disobedience, we would still have the “Jim Crow” laws. And without respect for the law, a society degenerates into either despotism or anarchy.

As for the children used in medical research, the consequence of these and other cases that came to light in the 1970s was the establishment of institutional review boards and stringent guidelines that were put in place to curtail medical research. Why? Because our laws require us to protect the well-being of the vulnerable, even though sacrificing the vulnerable may end up benefiting large numbers of the general population. Put another way, if the human rights of patients, organ donors, and children can be sacrificed to expediency, so can your rights and mine. Therefore, it is in the public’s best interest to protect children (and prisoners and other vulnerable people), even at the cost of slower development of medical treatments. Gandhi, one of the twentieth century’s most principled political leaders, taught and demonstrated through his life and political actions that there is no difference between ends and means—that, in fact, what we choose to do (the means) is what actually is manifest in the world, regardless of what we intend to produce (the ends) (Gandhi, 1958). In short, the means are the ends, because the means are what we have chosen to bring into existence. Another author puts it this way:

One man in the twentieth century led us back into morality as a practical thing and that was Mohandas Gandhi. His greatest contribution to the discussion of politics and morality was his insistence that ‘the distinction that the Cartesians and the Marxists had made between ends and means was a false distinction’. Gandhi demonstrated that the means were the end; that how you did things determined the end, that violence as a means to solving a problem was in fact the nature of the solution. He was able to destroy the mightiest empire in history without the use of a single gun. So the proof he gave was that morality was not impractical, and what is practical and worth practicing is only morality. (Kidder, 1994, p. 222)