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Humanize From Discovery Institute's Center on Human Exceptionalism
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No, Doctors Shouldn’t Make Treatment Decisions for Incompetent Patients

Originally published at National Review

Cardiologist and New York Times columnist Sandeep Jauhar has published a piece advocating that doctors and bioethicists be empowered to force treatment on some patients. He writes in the context of wanting to compel hospitalization on a schizophrenic patient with serious heart problems. From “Doctors Need a Better Way to Treat Patients Without Their Consent:”

According to New York law — and the law of other states — such involuntary treatment would require a court order. As doctors, we would have to plead our case before a judge. But was a judge without medical or psychiatric expertise the best person to decide this man’s fate?

In this case and also more generally, I think the answer is no. The law ought to be changed to keep such decisions in hospitals — in the hands of doctors, medical ethicists and other relevant experts.

How would that work exactly?

A better system for determining whether a patient should be treated over his or her objection would be a hospital hearing in which a committee of doctors, ethicists and other relevant experts — all of whom would be independent of the hospital and not involved in the care of the patient — engaged in conversation with the medical team and the patient and the patient’s family. Having hearings on site would expedite decisions and minimize treatment delays. The committee would make the final decision.

Are you kidding me? I am sorry, but expert committees are not to be trusted to impose their values on unwilling patients.

Nor should we be sanguine that times have changed so dramatically from the bad old days that independent oversight can be mothballed, as Jauhar would have us believe:

But though medical practice is by no means perfect, times have changed. The sort of abuse dramatized in the 1975 movie “One Flew Over the Cuckoo’s Nest,” with its harrowing depiction of forced electroconvulsive therapy, is far less common. Doctors today are trained in shared decision-making. Safeguards are now in place to prevent such maltreatment, including multidisciplinary teams in which nurses, social workers and bioethicists have a voice.

I have represented the wife of an incompetent patient in front of such a “committee” as a lawyer, and it seemed like a monoculture. Not that members are badly motivated. But they tend to share the values and morals of the sector in which they practice their professions. These may differ dramatically from those of the patient and family. Indeed, if family is available, why should they not be appointed to make the decision — as in a conservatorship — rather than strangers? Or a public advocate if no family member or close friend/associate/pastor/priest is available?

Here’s the nub of the problem. The right to decide is power, which always requires checks and balances and even nonexpert perspectives. But in Jauhar’s vision, diverse values would be mostly absent:

Of course, such a committee would have to be granted immunity from legal liability (as with judges in our current system), so that experts would be willing to serve and speak candidly. Patients’ interests could be safeguarded by requiring the committee to publish its reasoning. Periodic audits by a regulatory body could ensure that the committee’s deliberations were meeting medical and ethical standards.

In the event that the committee could not reach a consensus on the best course of action (or if there were allegations of wrongdoing), then the parties involved could appeal to a judge. But that would be the exception rather than the rule.

Oh, please. Private deliberations are the rule with bioethics committees. No real written record. Adding in audits that would mostly never be read or acted upon absent a significant scandal would not provide the kind of oversight required to protect incompetent patients.

But forcing treatment on unwilling people is not the main problem that vulnerable patients face. Rather, doctors refusing treatment they or their family want is the real danger — known in bioethics vernacular as “futile care.” Jauhar has previously written that he believes doctors should have the right to pull the plug against the desires of patients, as I discussed in an earlier post about one of his previous columns:

The doctor may think that living longer provides “no benefit” and limit treatment even though the patient/surrogate/family does. That’s not a medical decision, it is a value judgment.

So in a situation of life and death — Jauhar believes the doctors’ values should trump those of the patient — presumably, even if stated by a competent patient or instructed in an advance directive.

It is worth noting that Jauhar doesn’t think Christian- and Hippocratic oath-believing doctors should have conscience rights, such as refusing to participate in abortion. From his earlier NYT piece:

Doctors have an obligation to adhere to the norms of their profession. In my view, as long as treatments are safe and approved by medical organizations, doctors should have limited leeway in refusing to provide them.

How are these seeming contradictions to be reconciled? For medical-establishment types like Jauhar, the values they hold should prevail in patient-care disputations and professional decisionmaking, whether it is forcing treatment on unwilling patients, refusing wanted life-sustaining treatments, or forcing MDs and other medical professionals to provide interventions that violate their religious or moral beliefs.

No thank you. Checks and balances and outside oversight — even if adversarial at times — are crucial to maintaining the dignity and individual rights of patients and thwarting the imposition of a technocracy in which the rules of the medical road would be imposed on us all by committees, bioethicist “experts,” and the values embraced by the elite.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.