Legal Trends in Bioethics

Starting with the fall issue of The Journal of Clinical Ethics, my “Legal Trends in Bioethics” column will be available on the Cato website at time of publication instead of only several months later. That means the information provided will be more up-to-date and relevant for anyone interested in tracking legal issues in bioethics.

For those not familiar with the column, it tracks bioethics related issue through all stages of litigation, legislation, and regulation at both the federal and state levels, as well as occasionally mentioning exceptional legal developments in other countries. The topics covered are not always exactly the same, but usually there are sections on informed consent, abortion, children’s rights, vaccines, organ procurement, HIV, mental illness, medical privacy, unconventional treatment, right-to-die, stem-cell research and other new technologies, among other topics depending on what bioethics topics are of legal concern in the U.S.

The column tries to be comprehensive as far as reporting the most relevant developments at each level of government and in each topic area. It is a very useful tool for doing exactly what its name implies – tracking the “Legal Trends in Bioethics.” The following is the introduction to the fall column which will be published in The Journal Clinical Ethics and simultaneously become available on the Cato website next month:

The most troubling development in this quarter is the extent to which legislators continue to intervene in the patient/physician relationship by trying to regulate the relationship down to the smallest specifics of what is said and done. These developments are a great threat to both physician and patient autonomy, but while there have been many attempts to pass such invasive legislation, at this point, few of such bills have actually made it into law. It will be important to watch the next two issues of Legal Trends if someone is interested in seeing how many of such bills actually do end up as laws.

The issue of medical tourism is not new to bioethics, but it is on the brink of attracting more attention in U.S. courts and legislatures. There is no separate heading in “Legal Trends” for “medical tourism,” but it is important for anyone interested in the subject to regularly check the “Legal Trends’ subheading dealing with interesting developments in other countries. In this issue, for example, some Canadians are seeking a police investigation into an assisted suicide in Switzerland. Physician assisted suicide is legal in Switzerland, but illegal in Canada. At issue is whether Canadians have a legal right under Canadian law to travel to Switzerland to avail themselves of a practice that is illegal in their own country. In the United States there is a constitutional right to travel which would make it legal for the patient seeking physician assisted suicide to go to Switzerland (there is no case directly on point but the basic principle is well-established in U.S. constitutional jurisprudence), but even in the U.S., as in Canada, it may be possible to prosecute someone who assists that person in getting to Switzerland. This could be considered aiding and abetting a suicide. The Canadian suit has not even been filed yet, and no such case exists in the U.S., but it is an interesting issue to watch. It may come up as it did in Canada with respect to traveling to Switzerland where it is legal for physicians to assist foreigners in committing suicide (this is not true in the Netherlands); it is also likely to come up in connection with people suffering from kidney disease traveling to Iran, the only country where it is legal to purchase kidneys, and in other situations where the legality of the activity is not the issue but the price of medical treatment.

The “Legal Trends” from earlier this year are available on the Cato website or directly from The Journal of Clinical Ethics.

Cash-Only House Calls

An article in today’s New York Times provides another example of how, when the patient owns and controls the money involved, entrepreneurs respond with medical services far more convenient and customer-friendly than your typical doctor’s office visit. 

Critics of physician house-call services will argue that such services are great if you have $250 to $450 to spare.  I see these stories and wonder what types of services low-income workers would already have if they had been allowed to own and control all of their health care dollars for the past several decades.

H.T. Bob Budd.

Washington Post’s Popular Programs

Washington Post, September 18: “The Democratic Congress is considering 2008 spending bills that increase funding for politically popular programs….”

Washington Post, September 19: “With a difficult war debate looming and presidential vetoes for a host of popular legislation….”

Washington Post, September 20: “Republicans and Democrats in the [Virginia] General Assembly proposed election-year spending increases for popular programs….”

Notice any pattern? 

The Washington Post is a great paper, but like many papers it reveals a pro-spending bias when it reports on government budget issues. One aspect of this is the common portrayal of any increase or cut as affecting “popular programs.” Every type of program is portrayed as “popular,” whether it provides benefits to 50% of Americans or just 0.05% of Americans.

Presumably, Post reporters don’t do a public poll to find out which programs really are ”popular.” Instead, they just automatically stick the word in stories to perhaps suggest, “Ohhh, policymakers better not cut spending on that one or else there will be hell to pay.”

I’ve noticed this for years in the PostHere’s one on federal grants to local governments: “According to the police group, the most controversial proposals include a $376 million reduction in the popular Community Oriented Policing Services program….”

Washington Post readers sometimes complain that its stories are too wordy. Well, “popular” is one word that editors can look to chop out.  

Pelosi’s World

House Speaker Nancy Pelosi’s understanding of government’s role in a liberal democracy (and of the veto power) may be worse than I thought. A reporter sends a transcript of a press conference that Pelosi held yesterday, where she made the following remarks:

Oh, [President Bush] used the veto pen to veto the stem cell research bill.  That was a major disappointment… . I remember that veto very well because he was saying, “I forbid science to proceed to improve the health of the American people.”

Regarding Bush’s threatened veto of the Democrats’ expansion of the State Children’s Health Insurance Program:

The President is saying, “I forbid 10 million children in America to have health care.” You know from your Latin that is what “veto” means.

Pelosi should know that there is a difference between the government not funding something and forbidding it. 

My colleague Sigrid-Fry Revere documents that stem-cell research proceeds even — or especially? — in the absence of government funding. Anyone with passing familiarity with SCHIP knows the program covers millions of children who would have health insurance anyway — and even more children who would still get health care if the program disappeared tomorrow. Yet Pelosi thinks that vetoing SCHIP expansion is the equivalent of stormtroopers kicking in clinic doors to stop a well-baby visit.

Notably, no one from the press challenged either comment.

Upcoming Cato Forum on the Rights of Terminally Ill Patients

In 2006, a panel of the D.C. Circuit Court of Appeals ruled that terminally ill patients have a constitutionally protected right to purchase and use experimental drug treatments not yet approved by the federal government. 

On August 7 of this year, the full D.C. Circuit overturned the panel ruling, holding that terminally ill patients have no such constitutional right.

On September 25, this coming Tuesday, the Cato Institute will host a policy forum titled, “Should the Government Insert Itself between Dying Patients and Unproven Therapies?“ 

Debating the rights of terminally ill patients will be Scott Ballenger, the lead counsel for the plaintiffs in that case; Ezekiel Emanuel, a bioethicist with the National Institutes of Health and a leading critic of the panel’s ruling; and yours truly.

The forum will be from 12-1:30pm, followed by a luncheon.  Register here.

Let SCHIP Expire

Congress should let the State Children’s Health Insurance Program (SCHIP) expire on September 30 and replace it with the freedom to purchase health insurance from anywhere in the nation. 

SCHIP is senseless. Like its much larger sibling Medicaid, the program forces taxpayers to send their money to Washington so that Congress can send it back to state governments with strings attached. Both programs force taxpayers to subsidize people who don’t need help, discourage low-income families from climbing the economic ladder — and make private insurance more expensive for everyone else.

But don’t expect an enlightened discussion of SCHIP’s costs and benefits when the Democrats’ bid to expand the program to 70 percent of all children comes to the House floor for a vote on Tuesday.  House Speaker Nancy Pelosi was at her demagogic best (I hope) when she said a veto of the bill would be the equivalent of President Bush saying, “I forbid 10 million children in America to have health care.” Good grief.

I asked a reporter if suggesting that Congress let SCHIP expire would lead Sen. John Kerry to accuse me of murdering middle-class babies. She replied, “No. Just hating kids.”

Reax to Health Care Discussion on Cato Unbound

A former intern (and current medical student) shares these illuminating reactions to the discussion at Cato Unbound about the effectiveness of medical spending:

Hanson’s argument is certainly compelling. I haven’t had much exposure to the practice of medicine, but based on the few patients I’ve seen (and mostly on the clinical cases we go over in class) it seems obvious that so much of what is spent on medical care in this country could be prevented if people would take care of themselves — for example, most people don’t need a kidney transplant because they acquired a bacterial infection that went septic or were born with a rare genetic defect . … [I]nstead it’s often due to diabetes or hypertension, which in most cases are prevented through a healthy lifestyle. 

Indeed, as we are currently going over infectious diseases, I can’t help but think how much must be spent each year on hospital-acquired infections — particularly because they are often resistant to older drugs, and require newer and more expensive inpatient treatments to cure … and of course lead to all sorts of nasty complications that must also be treated.  (Note to self: don’t ever get admitted to the hospital and have various catheters and IVs inserted unless absolutely necessary!). And of course, there are the numerous medical procedures performed everyday that probably have little to no benefit — I can’t tell you how many times I’m told we need to learn how to properly conduct a physical exam, only to be followed by “but nowadays we just order an MRI / CT scan / ultrasound / other fancy imaging just to be sure.”  (!)

I think Dana Goldman and David M. Cutler place a lot of emphasis on the medical innovations that have occurred since the RAND study, and while I agree that a lot of really cool and lifesaving technology has been invented since that study, it seems likely (to me) that the returns have been small compared to the gigantic costs (which seems to be the argument Hanson makes). As several of them mentioned, in order to cut costs intelligently, you would need to distinguish between low-quality and high-quality care. My problem with that argument is, as always, who gets to decide what is low or high quality? Take the example of atherosclerosis — certainly the cardiologists will argue the importance of their catheterization labs and use of stents, while a PCP may suggest a good medication and continuity of care instead (and the surgeon might recommend bypass surgery). Each could probably come up with convincing studies to suggest their treatment is correct — do they get to decide, or does some committee, or does the patient? 

I’m also not convinced that Medicare FFS rates could be effectively changed, as Alan Garber briefly hints at — physicians will still find ways to game the system (consciously or not), and it is unlikely that a large program such as Medicare will ever be able to accurately distinguish between high and low quality while also taking into account the individual needs of the patient. You could probably scale back the medical field to vaccines, antibiotics, prenatal care, and emergency (trauma) care, and not see a change in community health status that couldn’t be overcome by lifestyle changes. 

Don’t get me wrong — I think that a lot of the research being performed (particularly in identifying the genetic components of disease) is really promising from a medical perspective, but asking if it is cost-effective is a different story. That’s why economists seem less biased than doctors — economists see the entire population, while doctors only look at their patients who often are the sickest of the bunch and want to do everything in their power to help. They’re caring and intelligent people, but not always rational in resource-usage. And of course, most patients don’t want them to be — a sick patient often wants to do everything possible to save/prolong their life — this is expected.