Sunday, January 3, 2010

Is It Legal? Catholic Mandate for Patient Care.

Bob Egelko at the San Francisco Chronicle has an article today that gets most things right.

The article's title, "New Catholic Mandate on Comatose Patients," is misleading. The mandate, Directive #58, applies not just to comatose patients but to all patients who are deemed by the church in need of the introduction of artificial nutrition and hydration (ANH) or who wish to have ANH removed, whether they be victims of a terminal disease, a tragic accident or old age. The Directive qualifies ANH, applied by a surgical procedure, to be "obligatory" care, regardless of the "do not resuscitate," advance directive or living will desires of the patient.

Egelko asks, "A Legal Conflict?" As we've seen with other patients' rights at Catholic hospitals, particularly women's reproductive rights, the church is shielded by a webwork of laws (provider refusals or so-called "conscience clauses") that allow not only individuals but institutions (even those with tax-exempt status, serving diverse communities and 50% funded by the federal government) to deny patient's their rights by either not informing them of common procedures, not referring them for such procedures, or simply not performing those procedures.

The conscience clause enacted by Bush 13 months ago is up in the air as the Obama administration reviews it. Fierce lobbying by (unregistered, unreported) Christian lobbying groups, such as the USCCB, which has a staff of 350 in Washington, are working around the clock to ensure that their health care entities are not regulated by the federal government - and can subsequently shape health care as they see fit. Beyond segmented patients' advocacy groups for elder and terminal rights, gay rights, and women's rights, there are few powerful entities within society that can stand up to the entrenched, well-funded, and influential medical or Christian lobbies.

Religiously-inspired conscience clauses have been challenged unsuccessfully in the courts but only on privacy grounds, not on Establishment, Equal Protection, or separation of church and state grounds. The courts, including the Supreme Court, have famously shied away from engaging "separation of church and state" arguments with regard to health care. The patients' rights movement has struggled for decades against the powerful medical industry and fundamental Christian forces. As patients' rights stand now, medical institutions and the Catholic Church enjoy much more protection and many more rights than the patient.

The solution that Lori Dangberg of Alliance for Catholic Health Care disingenuously offers is that patients who encounter a conflict with the Catholic institution where they are being cared for can be transferred. But anyone who has experienced the wasting and death of a loved one knows that Coombs Lee is right when she states, "[Patients and families are] very vulnerable to the kind of duress and shame that a policy like this would inflict."

We've seen the church use this tactic before with abortion, sterilization and other "shameful" women's services. Over the past 30 years women have been shamed out of hospitals, become accustomed to traveling for the services they need, or required to comply with the dictates of the Church because they lack the resources to go elsewhere. A network of clinics and independent reproductive service centers has risen up to serve those neglected by the Catholic and other discriminating hospital networks.

The end of life is a trying period for both patient and family. Because few Catholic hospitals readily provide patients with informed consent - and because the general population doesn't understand that Catholic hospitals restrict their care services according to doctrine - many patients and families find themselves in a situation where the advance directive is ignored and death is prolonged or futile care is applied when the patient doesn't want it.

It is nearly impossible for patients and their families to be savvy when they are typically encountering the Catholic medical system - or any medical system - for the first time. Doctors and medical institutions operate from a position of authority and vulnerable and distraught patients and families are often cowed into complying with such authority, against their wishes. For many, this experience of death is their first and they go into it without understanding how we die, what medical procedures are standard or necessary, and what a patients' rights are. Going against hospital policy takes tremendous knowledge and effort when in such a traumatic situation.

I'm tickled to see Egelko's article now. I hope it is a sign that the media is beginning to recognize the current discrimination in health care delivery. And I hope that it raises pressure on the church, the state, and the medical industry to better serve citizens.
The nation's Catholic hospitals, including three in the Bay Area, face a new religious mandate in the new year: to provide life-sustaining food, water and medicine to comatose patients who have no hope of recovery

The U.S. Conference of Catholic Bishops issued the directive Nov. 17 to the more than 1,000 church-affiliated hospitals and nursing homes in the United States and to all Catholic doctors and nurses. Invoking a 2004 speech by Pope John Paul II, the bishops said Catholics must provide nutritional assistance to patients with "presumably irreversible conditions ... who can reasonably be expected to live indefinitely if given such care."

A previous directive let Catholic hospitals and doctors decide whether the burdens on the patient outweighed the benefits of prolonging life. The bishops said the new policy was guided by "Catholic teaching against euthanasia" and by John Paul's observation that providing food and water "always represents a natural means of preserving life, not a medical act."

The directive plunges the bishops into another health care controversy, on the heels of their lobbying for tight restrictions on abortion coverage in health legislation pending in Congress.

Catholic hospital officials say the November decree isn't rigid and leaves room for accommodating patients' wishes. But the bishops' language appears to conflict with a hospital's legal duty to follow a patient's instructions to withdraw life support, as expressed in an advance written directive or by a close relative or friend who knows the patient's intentions.

Courts have ordered hospitals to disconnect feeding tubes when an unconscious patient's wishes were clearly established. The best-known case involved Terri Schiavo, the Florida woman who died in 2005 after 15 years in a coma and unsuccessful attempts by her parents and Republicans in Congress to keep her alive.

A legal conflict?

The bishops' order "fails to respect settled law that empowers patients with the right to refuse or direct the withdrawal of life-prolonging care," said Barbara Coombs Lee, president of Compassion & Choices, which advocates for the right of terminally ill patients to make life-or-death decisions.

"It will apply irrespective of your religious faith, your stated wishes in an advance directive, or the instructions of your family."

That's not how the bishops' decree will be carried out, Catholic hospital organizations insist.

The decree itself does not require life-sustaining care that would be "excessively burdensome for the patient" or would cause "significant physical discomfort." If those exemptions don't apply, a hospital will send a patient elsewhere rather than violate his or her expressed wishes, the organizations said.

"If it was unresolvable ... we would transfer them or find some other means to accommodate them," said Lori Dangberg, spokeswoman for the Alliance of Catholic Health Care, which represents California's 55 Catholic hospitals.

The hospitals include St. Francis and St. Mary's in San Francisco and Sequoia Hospital in Redwood City, all owned by the Catholic Healthcare West chain. Dangberg noted, however, that such situations usually arise in nursing homes and other long-term facilities, rather than in acute-care hospitals.

Ethics considerations

The Catholic Health Association of the United States, which represents both hospitals and nursing homes, said a facility's ethics committee would probably meet with the doctor and the patient's representative to "explore the alternatives" whenever a patient's decision to withdraw life support clashed with Catholic doctrine.

"In some instances, this might include the transfer of the patient to another facility," the association said.

That's not an adequate option, even when non-Catholic health facilities are nearby and available, said Lee, of Compassion & Choices.

"These decisions are hard on the family," she said. "They have to muster their will and their courage to do what they know Mom would want or what the advance directive says.

"They're very vulnerable to the kind of duress and shame that a policy like this would inflict."

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Catholic Charities: San Francisco v. the Christians.

From Bread on the Water, a (hilarious and amazingly "sheltered") article about the challenge in San Francisco to Catholic Charities, which refuses to allow gay couples to adopt from its agency.

The article is worthwhile because of how it perpetuates a number of conservative and fundamental myths: the Church is under attack; gays have sex by fisting; exaggerating crowd sizes is a legitimate way to inflate public support of the church; children need a mother and a father to have "normal" lives; only a godly household is conducive to parenting; the separation of church and state means the state can't regulate the church; religious freedom means churches are free to impose their discriminatory doctrine via social services on a diverse society.

I say the article is hilarious because it is all emotional - fear and hatred, specifically - and has little regarding the facts of the case or any studies showing how children fare in gay households. In other words, it is indicative of the anti-intellectualizing that is rampant in media: go for the outrageous; justice, truth, science, rational thought be damned. As though any member in society is justified in making up their mind about a legal case based on an unprovable idea (gays are perverse) and not on the facts (children fare as well in secular and even gay households as they do in Christian households, perhaps better if you consider education a good thing.) And then there's the photo used to represent those hideous gays!

But the writer is wise in some ways. By painting religious discrimination as just and decrying the persecution of religious, traditional, patriarchal beliefs, the Christian right is able to rally it's core believers. Their brand of faith teaches them to find glory in condemnation, to fight on against their (contrived) enemies, that opposition and challenge makes them more Christ-like and holy.

This view of others as opposition is entrenching, sustaining. As fundamental beliefs have shaped our laws over the past 50 years as activists for minority groups have risen up in search of their own rights, fundamentalists have declared that any reclaiming of personal rights by these groups is encroachment (see abortion). The church has moved so far beyond its proper boundaries in society that pushing it back out of social services (funded by federal funds which, of course, can't be used for necessary women's health care but are necessary for the spread of religious ideology), out of bedrooms and private lives, out of medical care and marriage is looked at as aggression by the church and even by non-religious, conservative by-standers. If you're not gay or don't know much about the gay community you could easily see this kind of issue as perhaps unimportant. Why would perverts want to raise children? So what if those facilitating adoption deem the gay community unworthy?

But as a member of a pluralistic, diverse society, as a voter and a citizen who's duty it is to demand and enforce the rights of minority groups, we are responsible for your own ignorance and wrong assumptions, particularly when they perpetuate the kind of hilarious drivel below for the sake of continued hatred, ignorance and discrimination. Being passive in the face of the church, or even reverential, as is society's general approach, is allowing such ignorance, stereotyping and discrimination to continue.

Religious freedom doesn't mean much to many people who don't practice a religion, but it cannot be denied that defending freedom of religion, at the very least, defends one's ability to choose one's own values and then act on them, provided that those actions don't deprive others of the same ability.

The City of San Francisco is presently governed by a body of legislators who have chosen to believe that same-sex couples are entitled to all the benefits of heterosexual couples, including parenting children.

As in all things, Nature has something to say about that. To parent children, same-sex couples must introduce a member of the opposite sex into the equation at some point. For some same-sex couples, the answer is adoption. However, Catholic Charities in San Francisco has refused to place children in their care into same-sex households.

Scandalized, the San Francisco Board of Supervisors in early 2006 passed a resolution (Resolution 168-06,
click here) condemning the Catholic Church's refusal to offer children for adoption by gay couples. A week later, the Board officially condemned a rally of 25,000 Christian teenagers gathered to oppose a popular culture that glamourizes violence and sex, including abortion and homosexuality.

San Francisco's Board of Supervisors labeled the Catholic Church's refusal to require parentless children to be raised by homosexuals as "hateful," "discriminatory," "insulting," "callous," and "showing a level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors."

As opposed to (one cannot help observing) the tact, sensitivity, and enlightenment displayed by San Francisco's answer to the traditional religious community, namely, the Sisters of Perpetual Indulgence (shown) whose motto is, "Go and sin some more." (I am not making this up.) It should be noted that San Francisco's Catholic churches do not prevent the Sisters of Perpetual Indulgence from participating in Catholic religious services. But the Church is not putting little babies into their hands.
Catholic doctrine teaches, for example, that allowing children to be adopted by homosexuals would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment that is not conducive to their full human development," the center explained. "Such policies are gravely immoral and Catholic organizations must not place children for adoption in homosexual households."
And what did San Francisco's elected legislature think of that rally of 25,000 Christian evangelical teenagers eager to follow that antique guideline known as the Ten Commandments? The Board of Supervisors called their rally a "fascist mega-pep rally" of "virtue terrorism." Got that? San Francisco feels "terrorized" when faced with non-fisting adolescents.

At present, the 9th Circuit Court is considering
a challenge to San Francisco's resolution condemning the Catholic Church for its moral teachings. The challenge was brought by the Thomas More Law Center, which presented oral arguments to the Court on December 17, 2009.

The Establishment Clause of the U.S. Constitution
does not permit government hostility toward religion. Robert Muise, who argued the case before the eleven-judge panel, said, "If the full court allows this government attack on Catholics to stand, it will likely further embolden anti-Christian attacks by government." Bill Donohue, speaking for the Catholic League, pointed out that Board of Supervisors' "invective and bigoted comments" tell "what will be happening under the 'hate crime law' recently signed by President Obama."

On the other hand, according to Muise, "Should the full court ultimately render a decision in our favor, this case will establish much needed precedent for claims alleging government hostility toward religion."

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