Samizdata

Nobody is willing to take the position (at least in public) that a person should not be able to refuse medical care in person, on their own behalf. However, many of those now engaged in the struggle over end-of-life health care are, wittingly or not, arguing that some health care decisions should be removed from private hands and made by the state.

The current baseline rule is that your personal autonomy with respect to consenting to or refusing to consent to medical care is pretty much absolute (I am discussing medical care, not mental health care, which operates in a parallel universe on these issues). I note that there are some second-order restrictions on what kind of care is actually available to you, arising from various licensing and regulatory regimes, but leave those aside for now. You can refuse any and all kinds of care, ranging from the most extreme life support to the most mundane blood transfusion, and people do all the time, even when the refusal puts their life at risk.

Things get more complicated when you are unable to decide for yourself (or, what amounts to the same thing, unable to communicate your decision). Someone has to decide what care you will be given. Your ability to make such decisions in advance will, sooner or later, be outrun by the unforeseeable complexities and irreducible detail of your medical care. If nothing else, someone will have to interpret your written instructions and apply them to the messy clinical realities. At the end of the day, if you are not “decisional” you will have a surrogate decision-maker. That decision-maker will either be a private individual or the state.

The current system very rarely results in the state directly taking custody of a medical patient who is not decisional, and is very heavily biased toward leaving health care decisions in private hands, with a fairly limited “reserved” power in the state to hear disputes about who the private decision-maker should be. So far, so good.

Although reasonable people can disagree on whether, for example, Michael Schiavo should be Terri Schiavo’s surrogate or one of her parents should be, this dispute is over the proper issue of which private party should make decisions. It is very difficult, I think, to argue that this issue hasn’t been fairly and adequately processed by the courts.

However, we are seeing increasing pressure to restrict the decisions that the surrogate can make. This is where it gets tricky, because legal restrictions on the decisions that a private decision-maker can make mean that the state is making that decision. If there is a law on the books that prohibits your surrogate from consenting to experimental treatments, then the state is making the decision that you will not receive that treatment. If there is a law on the books that prohibits your surrogate from withdrawing a feeding tube, then the state is making the decision that you will be fed through a feeding tube.

The current mantra that “if there is any doubt, err on the side of life” is a TV-friendly sound-bite in the service of expanding the control that the state has over your medical care, because this “principle” removes from your surrogate the ability to make health care decisions, and is functionally equivalent to the state ordering that medical care be provided regardless of your wishes. For your own good, of course.

Similarly, the endless agitation for more appeals amounts to agitation for more state review and oversight of a nominally private decision. For your own good, naturally.

In short, to the extent any coherent public policy is being advanced by the people who want the feeding tube re-inserted into Ms. Schiavo, it is a public policy that shrinks the decision-making powers of private decision-makers, and necessarily transfers those decisions from private hands to those of the state.

The over-riding principle that is cited in favor of this transfer of power to the state is the protection of life. However, the protection of life is not an absolute trump card; indeed, when it comes to medical care, personal autonomy overrides protection of life; otherwise, the law would require that life-saving health care be provided to you over your objections.

Nobody is willing to take that step, so advocates for the transfer of power to the state are left in the position of arguing that some decisions that you can make for yourself should never be made by your surrogate, but should be made by the state instead. Those are the only two choices on offer – either the state makes decisions about your end-of-life medical care by prohibiting your surrogate from deciding, or your surrogate decision-maker does.

I think you know where my instincts are when faced with a choice between preserving the private sphere and expanding state control.

For an excellent overview of the Schiavo case, written by someone with a better work ethic than me (she links to her sources, I just kind of remember their gist), go to Majikthise.

Out of the morass of purely case-specific issues in this case, perhaps the most legitimate policy argument raised by the Schiavo trainwreck has to do with the withdrawal of food and water.

Let’s be clear on Schiavo’s condition and treatment here: she is being fed and hydrated through a tube in her stomach. She is not feeding herself, and is presumably not capable of taking food and water orally, or the tube would never have been inserted. This kind of feeding and hydration is just as much a medical treatment as having a glucose or saline IV inserted into your arm.

No one attempts to deny that Terri (or anyone else) would be permitted to refuse this treatment for themselves; a law mandating that you receive a given medical treatment against your will would be widely regarded as an abomination.

Similarly, no one seems to be seriously arguing that if Terri were on a ventilator or some other form of artificial “life support”, that her guardian should be permitted to withdraw the life support, even though there is no written evidence of what Terri’s wishes were in that regard.

This leaves many of the folks who are now arguing for federal intervention into Terri Schiavo’s medical treatment in the rather uncomfortable position admitting that (a) she could refuse to consent to being fed through a tube in her stomach, and (b) that her guardian could withdraw other forms of life support, but nonetheless that (c) her guardian cannot refuse consent to her being fed through a tube in her stomach.

Thus, the policy question being posed by this case seems to be whether a surrogate decisionmaker should be compelled by law to “consent” to their ward being fed through a tube in her stomach, unless he can produce written evidence that is what the patient would have wanted.

The case against such a legal mandate boils down to the argument that denying the right to consent or refuse consent to the surrogate is the same as denying it to the patient herself. Of course, the surrogate is not, in fact, the patient, and there may be legitimate boundaries placed on the decisions the guardian can make on behalf of their ward. The question is whether withdrawal of nutrition and hydration is outside of those boundaries, and if so why.

The case for a legal mandate that nutrition and hydration be given over the objections of the legal guardian rests comes down to the argument that, where there is any doubt as to what the patient would want, we should err on the side of keeping them alive. This argument, however, founders on a couple of points. Logically, it cannot be limited to nutrition and hydration, and thus requires that we keep all life support, no matter how extraordinary, in place. Further, it begs the question of how much certainty is enough. Even where a written living will exists, the question can be raised about whether the patient changed her mind.

Because we cold-hearted libertarians care about such things, Terri Schiavo’s care is being paid for by taxpayer money through the Medicaid program. Even though her parents have noisily pledged to take all financial responsibility for her care, they have not yet done so, even though the trust fund established out of the proceeds of her malpractice case to pay for her care is nearly exhausted. The annual cost is probably around $80,000 per year.

Stephen Pollard, a former member of Britain’s Young Conservatives who is now a New Labour guru, has an article in the Times called: My easy ride in the Senate seat.

Life after his easy ride is getting a little more tricky, with a savaging from Global Growth, the free-market NGO.

Leon Trotsky’s views on the role of arts were well known. He argued that art in all its forms existed to convey political messages to the masses and that any other use of the arts was bourgeois nonsense. The idea that it was acceptable for the arts exist to express the personal views of some artist or to simply ‘entertain’ in a non-political sense (not that anything is really non-political to a statist) was just preposterous to Trotsky. Thus if the state wished to advocate or depreciate something, it was the role of the arts to assist with that process. A modern day example of this would be, say, the relentless demonization of smoking.

Which brings us to the views of the Orwellian sounding Centre for Tobacco Control. This group of lobbyists is infuriated that their calls for smoking to be censored by the British Board of Film Classification (who were once simply known as the Film Censors) has been rejected.

The board’s cautious mention of smoking for the first time falls far short of demands that smoking scenes, particularly in any film likely to be seen by children, should be banned in Britain and consigned to the cutting room floor. Professor Gerard Hastings, director of cancer research at the UK’s Centre for Tobacco Control, said: “If the BBFC doesn’t accept its moral responsibility, it might as well pack up and go home.”

And so we discover that this lobby thinks is the ‘moral responsibility’ of the state to impose standards on entertainment to make them more in accordance with the wishes of our technocratic betters (them, of course). Not only do they wish to make it as difficult as possible for you to make your own non-coerced choices as to what stresses and chemicals you expose your body to, they wish to prevent you seeing images which do not conform to the message they wish to indoctrinate you with. I would be curious to know if Professor Hastings also supports forcing people to take favoured chemicals?