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Undue Influence
The House Bill Skews End-of-Life Counsel

By Charles Lane
Saturday, August 8, 2009

About a third of Americans have living wills or advance-care directives expressing their wishes for end-of-life treatment. 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.

Still, I was not reassured to read in an Aug. 1 Post article that "Democratic strategists" are "hesitant to give extra attention to the issue by refuting the inaccuracies, but they worry that it will further agitate already-skeptical seniors."

If Section 1233 is innocuous, why would "strategists" want to tip-toe around the subject?

Perhaps because, at least as I read it, Section 1233 is not totally innocuous.

Until now, federal law has encouraged end-of-life planning -- gently. In 1990, Congress required health-care institutions (not individual doctors) to give new patients written notice of their rights to make living wills, advance directives and the like -- but also required them to treat patients regardless of whether they have such documents.

The 1997 ban on assisted-suicide support specifically allowed doctors to honor advance directives. And last year, Congress told doctors to offer a brief chat on end-of-life documents to consenting patients during their initial "Welcome to Medicare" physical exam. That mandate took effect this year.

Section 1233, however, addresses compassionate goals in disconcerting proximity to fiscal ones. Supporters protest that they're just trying to facilitate choice -- even if patients opt for expensive life-prolonging care. I think they protest too much: If it's all about obviating suffering, emotional or physical, what's it doing in a measure to "bend the curve" on health-care costs?

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.

As it happens, I have a living will and a durable power of attorney for health care. I'm glad I do. I drew them up based on publicly available medical information, in consultation with my family and a lawyer. No authority figure got paid by federal bean-counters to influence me. I have a hunch I'm not the only one who would rather do it that way. The writer is a member of the editorial page staff. His e-mail address is lanec@washpost.com.

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