The ERD part 2 »« Fared much better

Start at the beginning

Now. Let’s be thorough about this. I need to understand the Ethical and Religious Directives – commonly and folksily called ERD – and just exactly how they function, and why. I need to know if and how and why anyone relevant (like, hospital administrations, and medical practitioners) considers them binding. I also need to know what they say.

So let’s take a look.

Page 4.

The Directives have been refined through an extensive process of consultation with bishops, theologians, sponsors, administrators, physicians, and other health care providers.

That’s ridiculous, and dangerous. Bishops and theologians have nothing relevant to say.

But of course the whole thing comes from bishops. The wretched thing is on the USCCB website. It’s theirs. It’s Orders From the Bishops. Bishops are telling medical professionals what to do, as medical professionals. This is a fucking outrage.

Still page 4.

…the Directives will be reviewed periodically by the United States Conference of Catholic Bishops (formerly the National Conference of Catholic Bishops), in the light of authoritative church teaching, in order to address new insights from theological and medical research or new requirements of public policy.

Authoritative church teaching, theological and medical research – bad, bad, bad.

Page 13.

9. Employees of a Catholic health care institution must respect and uphold the religious mission of the institution and adhere to these Directives. They should maintain professional standards and promote the institution’s commitment to human dignity and the common good.

What is the status of that? Is it a condition of employment? Can the bishops fire medical practitioners who fail to adhere to these Directives? Can they force hospitals to fire medical practitioners who fail to adhere to these Directives? That was at issue with the nun who agreed to the abortion at St Joseph’s hospital in Phoenix, certainly.

Page 19 – it starts to get sinister.

When the health care professional and the patient use institutional Catholic health care, they also accept its public commitment to the Church’s understanding of and witness to the dignity of the human person. The Church’s moral teaching on health care nurtures a truly interpersonal professional-patient relationship. This professional-patient relationship is never separated, then, from the Catholic identity of the health care institution. The faith that inspires Catholic health care guides medical decisions in ways that fully respect the dignity of the person and the relationship with the health care professional.

That first sentence is very sinister. Some people – lots of people – are forced to “use institutional Catholic health care” because it’s all that’s available to them. Nobody should be forced to accept anyone’s commitment to any church’s understanding of anything as a condition of getting medical treatment. Nobody. Ever. Medical care should be secular.

Page 19 still.

24. In compliance with federal law, a Catholic health care institution will make available to patients information about their rights, under the laws of their state, to make an advance directive for their medical treatment. The institution, however, will not honor an advance directive that is contrary to Catholic teaching. If the advance directive conflicts with Catholic teaching, an explanation should be provided as to why the directive cannot be honored.

Well fuck you.

Page 20.

26. The free and informed consent of the person or the person’s surrogate is required for medical treatments and procedures, except in an emergency situation when consent cannot be obtained and there is no indication that the patient would refuse consent to the treatment.

Now they’re lying, because Catholic hospitals routinely don’t tell patients that they are not getting standard of care treatment for reasons of theology. They don’t require informed consent at all.

That will be part one. To be continued.

 

Comments

  1. steve84 says

    How the holy fuck is this even legal? Doctors can be sued if they violate a JW’s will and give them a blood transfusion (although the doctor’s conscience may demand it), but a Catholic hospital can just ignore a patient’s wishes?

  2. says

    I really don’t know. Some of it isn’t legal, but the feds don’t enforce the law. The NWLC and the ACLU have been trying to prod them, but as far as I know, without success so far. But yeah, why can a hospital just ignore an advance directive? I don’t know.

  3. steve84 says

    People need to start wearing medical wristbands that say “Do not take me to a catholic hospital”

  4. Stevarious, Public Health Problem says

    How the holy fuck is this even legal? Doctors can be sued if they violate a JW’s will and give them a blood transfusion (although the doctor’s conscience may demand it), but a Catholic hospital can just ignore a patient’s wishes?

    Because if you DO something, then you’ve acted and can be blamed for the consequences.

    But if you sit on your hands and do nothing, then GOD did it, and who’s gonna sue god?

  5. Jeff D says

    I am an estate planning lawyer who regularly deals with the enforcement of advance directives (“living wills,” health care powers of attorney, etc.) on behalf of clients who are or who become patients in Catholic hospitals (which are a majority of the public hospitals in the metro area where I do most of my work).

    A federal statute and regulations dating from 1990-1992 (Section 4206 of OBRA 1990, Pub. L. 101-508, codified at 42 U.S.C. §§1395cc(f); 42 C.F.R. §417.36(d), 431.20, and 489) require all hospitals that participate in the Medicaid and Medicare programs to inform patients, upon admission, about the hopsital’s policy in obeying or not obeying advance directives, to ask for copies of such advance directives (and to put them in the patient’s record if such directives exist), to tell patients about available forms and general info, and to explain to patients the extent to which the hospital will refuse to follow such advance directives, e.g., to refuse to discontinue tube feeding for a terminally ill patient once it as started.

    I would never remain silent if a pregnant or terminally ill client of mine was in serious medical jeopardy and seemed about to head to a Catholic hospital.

    Although the Obama administration issued an April 15, 2010 executive memorandum (http://www.whitehouse.gov/the-press-office/presidential-memorandum-hospital-visitation, see numbered paragraph 2) that suggested a prospective change in federal policy (to enforce advance directives against hospitals and other health care providers that would otherwise refuse to comply), there is still no federal statute that requires any public or private hospital to comply with a health care advance directive such as a living will. And to my knowledge, the federal regulations have not been amended as the President suggested or directed.

    I have sat on or chaired seminar panels involving advance directives and end-of-life care, where hospital chaplains (even Catholic chaplains) were participating; most of them really do their damnedest (literally, sometimes) to do the right things despite what the rules say. In fact, it was largely the failure of hospital administrators and staff to follow some of the ERDs that led the Bishops to make changes in the last (5th) edition of the ERDs in November 2009.

    I reject the two main premises of the ERDs: That the “Church’s” “teachings” have an an inherent authority that trumps all other considerations, and that each human being’s life is not his or her property but God’s property.

    It’s risky to generalize very much because of state-to-state variations in their laws, but usually, the best type of health care directive to have is a well-drafted durable power of attorney that gives broad health care decision-making powers to one or more agents (“attorneys-in-fact”). Having just a “living will” is not enough. In my home state, our statute gives a health care provider (even a Catholic hospital) only two choices in responding to an instruction from the agent holding the POA (e.g., when the patient who originally signed the POA is incapable of giving his or her own consents or instructions): (1) Comply with the instruction, or (2) transfer the patient to another facility (which, it is hoped, will be more compliant). A hospital that refuses to do either and that performs or withholds “treatment” against instructions risks being sued for battery.

    In my home state, the “living will” statute was enacted only because sufficient loopholes were added to enable hospitals and doctors to refuse to comply with them on flimsy pretexts, including reasons of “personal or religious conscience.” The same thing is happening now with preliminary drafts of POST (Physician Orders for Scope of Treatment) legislation: Only seriously or terminally ill patients will be eligible to have POST forms approved by their doctors, and the draft legislation includes a “religious or ethical” conscience escape clause for providers AND a provision saying that the POST form (even though it contains the doctor’s orders) will have no effect whatsoever during the pregnancy of the patient. Such is the power of the Catholic hospitals as a lobbying group.

  6. Kathleen says

    My experience with submitting my Advance Medical Directive at a Catholic hospital prior to surgery was that they accepted my directive without comment. The pre-surgery patient documentation that I got mentioned advance directives, but on careful reading it hinted that they might not be followed. Patient services refused to answer my questions, and only referred me to the Council of Catholic Bishops “Ethical and Religious Directives for Catholic Health Care Services.” Obviously, I was alarmed to learn that very little of my advance directive would be honored.

    Since I couldn’t delay my surgery long enough to change hospitals and doctors, I added a clause to my directive stating that if I were no longer able to make medical decisions for myself, that I should be transported to a specific hospital in my area that I knew would follow my directive as written. Although I hope I am never trapped into using a Catholic hospital ever again, I hope JeffD will comment on this. Is such a clause possibly helpful, or could my attorney-in-fact be stymied in trying to move me?

    Regarding the CCB’s ERD, I am hoping that Ophelia will be giving very special attention to Directive 61, and the matter of patients not being “deprived of consciousness” while being helped to appreciate the experience of “redemptive suffering” if they are in pain while they are dying.

  7. Jeff D says

    When the hypothetical patient who is not pregnant with complications, not terminally ill, and not comatose enters a Catholic hospital, my experience tells me that Kathleen’s experience is typical: The hospital personnel will honor the patient’s health care directives, because they have no legal or ethical reason not to honor them and to follow the named surrogate decision-makers’ instructions. Medical errors, and even malpractice, can still occur, but not for reasons connected to the ERDs.

    The Catholic hospitals in my area provide care of very high quality, and the ERDs become relevant primarily (if not only) in situations like these:

    (1) Artificial nutrition and hydration (tube feeding) has been started for a patient who is in a persistent and probably irreversible coma or who is terminally ill and unable to communicate, and now the patient’s appointed surrogate decision-maker or family members want to discontinue the tube feeding.

    (2) The patient’s pregnancy has created a medical emergency that threatens the patient’s life, health, or future fertility (i.e., the situation of Savita Halappanavar or the patient in the Phoenix hospital where Bishop Olmstead excommunicated the administrator who had approved the abortion).

    I have had clients who became terminally ill or comatose while in Catholic hospitals. These clients had good health care powers of attorney in place, the surrogate decision-makers decided NOT to start tube-feeding, and the hospital personnel complied. Even if the bishops are actually tightening enforcement, I think there’s still a better-than-even chance that a Catholic hospital would not dispute the decision to refrain from starting tube feeding. The relevant directives in the ERDs are #57 through #59. All of that guanophrenic [batshit-crazy] Aquinian theology and semantic games clutter up what little thinking is done by Catholic medical professionals on these issues; see also a pair of interesting commentaries, http://www.usccb.org/comm/hydrationletter.doc and http://www.usccb.org/comm/hydrationcommentary.doc.

    Having an extra clause (of the sort that Kathleen describes) in a health care POA, specifically authorizing or directing transfer, may be superfluous under a particular state’s law, but I think it does not harm to include it and may help a lot. When a patient’s health care directive (whether it’s a living will, a health care POA, or some othre document) is made a part of that patient’s hospital record, it essentially becomes what a call a fact of ritual significance: The doctors on call and the nursing staff are aware that this patient has a directive and perhaps also official surrogate decision-maker(s), and they know the name(s) and phone numbers of those surrogates, but they don’t read what the directives specifically say, they almost certainly don’t understand the substantive state law, and if they had to actually retrieve and print out a copy of the directive, they probably would not be able to do it very easily, if at all, because of the sloppiness and complexity of medical recordkeeping (even when it is digital). This phenomenon occurs in Catholic and non-Catholic hospitals alike.

  8. says

    Thank you Jeff D and Kathleen.

    I will indeed take a close look at Directive 61. Omifuckinggod.

    Man, this is such a big subject. It needs…more attention. A movement; conferences; conspicuous blogs; all that. Noise.

    I’m wondering if FFRF has a health care category. I’ll try to find out.

    Maybe I should co-ordinate with Michael De Dora.

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