“Voluntary” Death Panels May Forgo Assisted Suicide Talk

Bioethics   |   Steven Ertelt   |   Dec 28, 2010   |   8:31PM   |   Washington, DC

The debate over the death panels that appear to have been added back to the ObamaCare law continues and the complexity of federal regulations is causing considerable confusion.

Early reports indicated the death panels, the annual discussions authorized under ObamaCare at taxpayer expense where physicians confer with patients about end-of-life decisions, could possibly include a discussion of assisted suicide in the three states where one may be obtained.

But the fact that the discussions will center on advanced directives, which can’t include assisted suicides, may have a bearing on the discussions.

“These things can become very complicated–and finding anything in federal law and regulations is increasingly difficult,” pro-life bioethics attorney Wesley J. Smith writes today after conducting additional research on the death panels. Regarding them allowing assisted suicides, he says, “The answer appears to be: Probably not, at least, not yet.”

“The regulation pays for discussions regarding advance care planning,” he said. “But the regulation in question deals with advance care planning  in the context of advance directives, and assisted suicide … can’t be dispensed pursuant to advance directives.”

Page 1493 of CMS-1603-FC reads:

Voluntary advance care planning means, for purposes of this section, verbal or written information regarding the following areas:

(i) An individual’s ability to prepare an advance directive in the case where an injury or illness causes the individual to be unable to make health care decisions.

(ii) whether or not the physician is willing to follow the individual’s wishes as expressed in an advance directive.

“Note that the discussions are to involve what can be put in an advance directive and whether the doctor will abide.  Neither Oregon nor Washington law permits assisted suicide via advance directive–which only are invoked if a patient is incompetent, and so should never (if the law is followed) ever be administered to someone receiving surrogate decision making,” Smith explains. “Montana is unclear what it does and does not allow.”

“Hence, since no physician can legally engage in physician prescribed death per patient instruction in an advance directive, it seems to me that at least for now, assisted suicide discussions are not explicitly covered under the new Medicare regulation,” he adds.

Meanwhile, one top Democrat quoted in a story today in Politico says the death panels also won’t promote rationing  in part because they are voluntary.

“When people recognize that they will now have coverage for voluntary advance-care-planning, they may actually question the motives of those who told them health care reform would involve ‘death panels,’” the Senate Democratic aide said.

But Betsy McCaughey, a Republican health policy expert and the former lieutenant governor of New York, who came up with the phrase “death panels” says that’s misleading.

“Doctors should always be paid for the time they spend counseling patients, including about the tough choices they are making toward the end of their lives. But the government shouldn’t be scripting what doctors should say to patients. The government isn’t a trusted educator, it has a stake in reducing the care provided to elderly patients,” McCaughey told Politico, saying she expects the Obama administration to try to move it further.

“When end-of-life counseling first came up, doctors’ quality ratings were going to be determined in part by the percentage of patients who have a living will and those who follow it up,” she said. “If they make advance-care planning a protocol … it’s not voluntary, despite the use of the word.“

While the decision to have the end-of-life discussion is up to the patient, the regulations do provide financial incentives for doctors to have them as one of the measures used in the Physician Quality Reporting Initiative allows them to receive bonuses for having the discussions.