Monday, April 27, 2015

South Carolina Addressing Decision Making for Unbefriended

This session, several states are addressing gaps in how medical treatment decisions are made for patients without surrogates (the "unbefriended").  South Carolina is proposing to add two additional categories of decision makers at the end of its default surrogate list (for a total of 11 categories) .

(1) A close friend of the patient who is an adult and reasonably is believed by the health care professional to have a close personal relationship with the patient;

(2) A clinical social worker . . . or an individual who is a graduate of a court-approved guardianship program.

Apparently following the long-standing rule in Florida, the bill requires that a person serving as a decision maker pursuant to the final criteria must be "selected by the provider's bioethics committee and must not be employed by the provider."

"If the provider does not have a bioethics committee, the provider's governing body shall designate a committee of the governing body comprised of at least three members to select the person who shall serve as the decision maker . . . . The person serving as the decision maker must be notified that, upon request, the provider shall make available a second physician, not involved in the patient's care, to assist the person in evaluating treatment options. A decision to withhold or withdraw life-prolonging procedures must be reviewed by the provider's bioethics committee or the committee designated by the provider's governing body pursuant to this subsection. Documentation of efforts to locate a decision maker [in a higher default category] must be recorded in the patient's medical record."

Over-treatment (video)

Sunday, April 26, 2015

Norman Cantor's Plan to Avoid the Ravages of Extreme Dementia

Law professor Norman Cantor has a superb post over at Bill of Health:  "My Plan to Avoid the Ravages of Extreme Dementia."  He defends VSED over some other exit options.

Future of End-of-Life Care (NPR)

On Friday, Minnesota Public Radio News' Kerri Miller moderated an hour-long discussion on the future of end-of-life care with three experts:

  • Susan Wolf: McKnight presidential professor of law, medicine and public policy at the University of Minnesota
  • Dr. Glen Varns: Palliative medicine physician at Allina Health
  • Dr. Jacob J. Strand: Director of Symptom Management, Pain and Quality of Life Clinic at Mayo

Saturday, April 25, 2015

The Unbefriended - NYC HHC Annual John Corser Ethics Conference

The New York City Health and Hospitals Corporation is the largest municipal  health care system in the United States.  This year, its John Corser Ethics Conference is tackling one of the biggest, yet perennially neglected, topics in clinical bioethics: medical decision making for patients without surrogates.

The term "unbefriended" describes those persons--regardless of age--who reach the end of life with neither decision-making capacity nor surrogates.  All concerned agree these patients need special compassion and protection. Yet it can be unclear at the end of life which treatments are in the patients' best interest and which are an undesirable burden.

Compelling case presentations and audience interaction will define and clarify clinical, ethical, and legal approaches to the New York Family Health Care Decision Act.

At the conclusion of the seminar, attendees will be able to:

  • Identify the scope of the national response to the Unbefriended client
  • Describe at least 2 issues which are relevant to the national discussion of the Unbefriended client.
  • Identify issues considered when drafting the FHCDA and how they determined the outcome pertaining to the unbefriended.
  • Identify clinical and ethical issues confronted when working with the Unbefriended client.
  • Describe clinical and ethical impasses created by the FHCDA law pertaining to the Unbefriended cllient.
  • Identify potential solutions to ethical/legal issues that confront clinicians when working with their Unbefriended clients.
This program is free to all NYC HHC employees.  A light breakfast and lunch will be served.  Continuing Education Credits have been applied for.  Space is limited.


Breakfast and Registration


Welcome and Opening Remarks
Ross Wilson, MD HHC Senior Vice President, Quality and Corporate Chief Medical Office

Nature of Conference and Opening Remarks
Susan Sanelli-Russo, MD, Chairperson of the HHC Ethics Council, Director of Neurology Queens Hospital Center.

Conference Algorithm
Nancy L. Dubler, LLB, Ethics Consultant, New York City Health and Hospitals Association

Lecture: Raising Legal Consciousness about Unbefriended Persons
Erica Wood, JD, Assistant Director, American Bar Association Commission on Law and Aging

Presentation and Interactive Discussion of Case: PEG Placement for Nursing Home Resident
Audience Response Vote 1
Panel Discussion: Experts from the  facility and invited faculty
Audience Response Vote 2
Audience discussion

Presentation and Interactive Discussion of Case: DNR Order for a Hospital Patient Admitted from Nursing Home
Audience Response Vote 1
Panel Discussion: Experts from the facility and invited faculty
Audience Response Vote 2
Audience discussion

Lecture: The Evolution of NYS Laws on Health Care Decisions for Unbefriended Patients
Robert Swidler, JD, Vice President Legal Services, St. Peter’s Health Partners, Governor’s appointee to the NYS Task Force on Life and the Law 7chevy


Lecture: Ethical Complexity of Protecting Unbefriended Patients under the FHCDA
Tia P. Powelll, MD, Director, Montefiore Einstein Center
for Bioethics; Director, Einstein Cardozo Master of Science in Bioethics; Professor of Clinical Epidemiology,
Division of Bioethics & of Clinical Psychiatry, AECOM

Lecture: National Efforts to Protect Unbefriended  Patients
Erica Wood, JD

Working Lunch Video:   “Food for Thought”  Modeling  Mediation Pertinent to the Unbefriended

Presentation and Interactive Discussion of Case: Refusal of Treatment by Hospital Patient  with a Psychiatric Diagnosis
Audience Response Vote 1
Panel Discussion: Experts from the  facility and invited faculty
Audience Response Vote 2
Audience discussion

Panel Discussion of Day’s Activities/Audience Discussion
Erica Wood, JD, Robert Swidler, JD, Tia Powell, MD

Conclusion and Attendee Evaluation

Friday, April 24, 2015

International Association of Bioethics, 13th World Congress Edinburgh

The 13th World Congress of Bioethics will be in Edinburgh from 14 - 17 June, 2016.  

Law, Religion, and Health in America

Religion and medicine have historically gone hand in hand, but increasingly have come into conflict in the U.S. as health care has become both more secular and more heavily regulated.  Law has a dual role here, simultaneously generating conflict between religion and health care, for example through new coverage mandates or legally permissible medical interventions that violate religious norms, while also acting as a tool for religious accommodation and protection of conscience.  
This conference will: (1) identify the various ways in which law intersects with religion and health care in the United States; (2) understand the role of law in creating or mediating conflict between religion and health care; and (3) explore potential legal solutions to allow religion and health care to simultaneously flourish in a culturally diverse nation. 


Note: All keynote, plenary, and panel sessions will include time for Q & A.

Thursday, May 7: Pre-conference session: After Hobby Lobby: What Is Caesar's What Is God's?

As prelude to “Law, Religion, and Health in America,” please join us for a pre-conference session examining the role of religion in the American public sphere. Our expert panel will discuss the nature of conscience and conscientious objection, religious freedom, and religious accommodation from philosophical, theological, historical, legal, and political perspectives.  

4:00 - 6:00pm: Panel Discussion

  • E. J. Dionne, Jr., Columnist, The Washington Post; Senior Fellow, The Brookings Institution
  • Diane L. Moore, Senior Lecturer on Religious Studies and Education and Senior Fellow at the Center for the Study of World Religions, Harvard Divinity School
  • Charles Fried, Beneficial Professor of Law, Harvard Law School
  • Frank Wolf, Representative, Virginia’s 10th Congressional District, U.S. House of Representatives, 1981-2015 (retired)
  • Moderator: Daniel Carpenter, Freed Professor of Government, Harvard University and Director, Center for American Political Studies at Harvard University 
  • Moderator: I. Glenn Cohen, Professor of Law, Harvard Law School and Faculty Director, Petrie-Flom Center

5:20 - 5:30pm: Remarks from Dean Minow

  • Martha Minow, Morgan and Helen Chu Dean and Professor of Law, Harvard Law School

5:30 - 6:00pm: Audience Q & A

6:00 - 7:00pm: Reception

This event is free and open to the public, but seating is limited. Register online!
Co-sponsored by the Petrie-Flom Center and the Ambassador John L. Loeb, Jr. Initiative on Religious Freedom and Its Implications at the Center for American Political Studies at Harvard University.

Friday, May 8

8:00 - 8:30am: Registration

A continental breakfast will be provided.

8:30 - 8:35am: Welcome

8:35 - 9:20am: Plenary Address

  • Douglas Laycock, University of Virginia School of Law - Religious Liberty, Health Care, and the Culture Wars

​9:20 - 10:25am: Panel 1, Opening the Conversation: Testing the Scope of Legal Protections for Religion in the Health Care Context

  • R. Alta Charo, University of Wisconisin Law School - Creating Life as Protected Expressive Conduct
  • Leslie C. Griffin, University of Nevada, Las Vegas William S. Boyd School of Law - What Would American Health Care Look Like if it Respected the Religion Clauses? How Would the Religion Clauses be Interpreted If They Valued American Health Care?
  • Samuel J. Levine, Touro College Jacob D. Fuchsberg Law Center - A Critique of Hobby Lobby and the Supreme Court’s Hands-Off Approach to Religion
  • Moderator: I. Glenn Cohen, Professor, Harvard Law School and Faculty Director, Petrie-Flom Center

10:25 - 10:40am: Break

10:40 - 11:45am: Panel 2, Law, Religion, and Health Care Institutions

  • Ryan D. Meade, Loyola University Chicago School of Law - Can a Hospital Have a Conscience If It Doesn’t Have an Intellect and Will?
  • Elizabeth Sepper, Washington University School of Law - Contracting Religion: The Role of Private Law in Constructing Religious Identity and Enforcing Individual Compliance in Health Care Institutions
  • David M. Craig, Indiana University-Purdue University Indianapolis - Mission Integrity Matters: A Consistent Approach on Catholic Health Care Values and Public Mandates
  • Moderator: Christine Mitchell, Executive Director, Center for Bioethics, Harvard Medical School

​11:45am - 12:30pm: Lunch

Lunch will be provided.

12:30 - 1:15pm: Panel 3, Professional Responsibilities, Religion, and Health Care

  • Claudia E. Haupt, Columbia Law School - Religious Outliers: Professional Knowledge Communities, Individual Conscience Claims, and the Availability of Professional Services to the Public
  • Nadia N. Sawicki, Loyola University Chicago School of Law - Informed Consent and Disclosure of Providers’ Religious Convictions
  • Moderator: Holly Fernandez Lynch, Executive Director, Petrie-Flom Center

​1:15 - 2:35pm: Panel 4, The Impact of Religious Objections on the Health and Health Care of Others

  • Amy Sepinwall, University of Pennsylvania - Conscience and Complicity: Assessing Pleas for Religious Exemption inHobby Lobby's Wake
  • Nelson Tebbe, Brooklyn Law School, and Micah Schwartzman, University of Virginia School of Law - Religion Exemptions and Legal Baselines
  • Mary Anne Case, University of Chicago Law School - Why “Live-And-Let-Live” Is Not a Viable Solution to the Difficult Problems of Religious Accommodation in the Age of Sexual Civil Rights
  • Robin Fretwell Wilson, University of Illinois College of Law - Religious Conscience and Access: Choke Points, Gateways, and Bounded Measures
  • Moderator: Richard H. Fallon, Jr., Harvard Law School

​2:35 - 2:45pm: Break

2:45 - 3:50pm: Panel 5, A Case Study – Religious Beliefs and the Health of the LGBT Community

  • Craig Konnoth, University of Pennsylvania Law School - Reclaiming Biopolitics: Religion and Psychiatry in the Sexual Orientation Change Therapy Cases
  • Susan Stabile, University of St. Thomas School of Law - Religious Convictions About Homosexuality and the Training of Counseling Professionals: How Should We Treat Opposition to Counseling Homosexuals on Religious Grounds?
  • Shawn Crincoli, Touro College Jacob D. Fuchsberg Law Center - Transgender Health Care & Religious Exemptions in Post-Hobby Lobby America
  • Moderator: Noa Ben-Asher, Harvard Law School and Pace Law School

​3:50 - 5:30pm: Panel 6, Accounting for and Accommodating Patients’ Religious Beliefs

  • Thaddeus Pope, Hamline University School of Law - Brain Death Rejected: Expanding Clinicians' Legal Duties to Accommodate Religious Objections and Continue Physiological Support
  • Teneille R.  Brown, S.J. Quinney College of Law, University of Utah - Accommodating Miracles
  • Jonathan Will, Mississippi College School of Law - Religion as a Controlling Interference that Prevents Autonomous Choice in Medical Decision Making by Minors Attempting to Utilize the Common Law Mature Minor Doctrine
  • Matthew J.B. Lawrence, Petrie-Flom Center, Harvard Law School - Paid Exercise: Hospital Chaplains and the Hobby Lobby Problem
  • Stacey A. Tovino, University of Nevada, Las Vegas William S. Boyd School of Law - The Relationship Between Health Care and Religion in the HIPAA Privacy Rule
  • Moderator: Robert D. Truog, Professor, Harvard Medical School and Director, Center for Bioethics, Harvard Medical School

​Saturday, May 9

8:30 - 9:00am: Registration

A contintental breakfast will be provided.

9:00 - 9:05am: Welcome

9:05 - 10:10am: Panel 7, Religious Reasons in the Context of Reproductive Health Care

  • B. Jessie Hill, Case Western Reserve University School of Law - Regulating Reasons: Governmental Regulation of Private Deliberation and Religious Reasons in Reproductive Decision-Making and Health Care Decisions for Minors
  • I. Glenn Cohen, Faculty Director, Petrie-Flom Center - Religion, Rape, Incest, and Abortion: Should the State Evaluate the Reasons for Abortion? 
  • Dov Fox, University of San Diego School of Law - When Regulating Reproduction Establishes Religion
  • Moderator: Mindy Jane Roseman, Academic Director, Human Rights Program, Harvard Law School

​10:10 - 10:55am: Panel 8, Law, Religion, and Health Insurance 

  • Holly Fernandez Lynch, Executive Director, Petrie-Flom Center, and Gregory Curfman, Harvard Medical School - Hobby Lobby, Religious Employers, and Moving Away from Employer-Sponsored Health Care 
  • Rachel E. Sachs, Petrie-Flom Center, Harvard Law School - Religious Exemptions to the Individual Mandate: Health Care Sharing Ministries and the Purposes of the Affordable Care Act
  • Moderator: Marc A. Rodwin, Suffolk University Law School

​10:55 - 11:10am: Break

11:10am - 12:40pm: Plenary Session, The Contraceptives Coverage Mandate Litigation

12:40 - 1:30pm, Lunch

1:30 - 2:50pm, Panel 9, When Religion Intersects with Mental, Public, and Environmental Health

  • Abbas Rattani, Meharry Medical College School of Medicine - Religious Delusion, Decision-Making Capacity, and Culpability: Understanding Subjective Mental Illness Diagnoses in the Context of the Insanity Defense and Religious Freedom
  • Michele Goodwin, University of California, Irvine School of Law - Race, Religion, and AIDS
  • Aileen Maria Marty, Florida International University College of Medicine, Elena Maria Marty-Nelson, Nova Southeastern University Shepard Broad Law Center, and Eloisa C. Rodriguez-Dod, Florida International University College of Law - The Intersection of Law, Religion, and Infectious Disease on the Handling and Disposition of Human Remains
  • Jay D. Wexler, Boston University School of Law - When Religion Pollutes: How Should the Law Respond to Religious Beliefs and Practices That Harm the Environment and Risk the Public’s Health?
  • Moderator: Ahmed Ragab, Harvard Divinity School

​2:50 - 3:00pm: Closing Remarks

How to Register

The conference is free and open to the public, but space is limited and registration is required. REGISTER ONLINE!

Thursday, April 23, 2015

Baby F - Oklahoma Supreme Court Requires Clear & Convincing Evidence to Stop Life Support

This week, the Oklahoma Supreme Court issued its opinion in the Baby F case. 

The court held that for children in DHS custody, Oklahoma courts may authorize the withdrawal of life-sustaining
medical treatment or the denial CPR only after determining by clear and convincing evidence that it is in the best interest of the child to do so.

Clear and convincing evidence requires roughly 80% certainty instead of the typical preponderance/probability (>50%) standard in civil law.

Facts of the Case

The 3-month-old baby boy was one of several siblings taken into state custody in 2013, after state officials alleged the mother appeared to be under the influence of substances and the family could not care for the children. The baby had been diagnosed with several anomalies and genetic issues.

The baby's condition continued to deteriorate. A pediatric doctor at The Children's Center Pediatric Rehabilitation Hospital described the baby's prognosis as "grim," and stated that it was the consensus among staff members that care should shift from "aggressive management to palliative so as not to prolong unnecessary suffering and discomfort."

Lower Court Proceedings

The state went to court to seek a do not resuscitate order in December 2014. Oklahoma County District Judge Lisa Tipping Davis granted the state's request over an objection from the baby's attorney, but delayed implementation of her ruling to give the attorney a chance to appeal.

After the baby's condition deteriorated even further, the state went back to court. A proceeding was held in which custody of the baby was returned to his mother and father so they could consent to the do not resuscitate order.  The baby died the next day.

Supreme Court

While the baby died, the Supreme Court proceeded with the case to provide guidance to the lower courts.  

It held that a judge "shall not authorize the withdrawal of life-sustaining medical treatment or the denial of the administration of cardiopulmonary resuscitation on behalf of a child in DHS custody without determining by clear and convincing evidence that doing so is in the best interest of the child."