Implementing Best Practices: Converting Good Ethics into Good Law

1. Implementing Best Practices: Converting Good Ethics into Good Law David Orentlicher, MD, JD Indiana University Schools of Law and Medicine Indiana House of Representatives July 14, 2008

2. Medical ethics and the law • In the United States, law and medical ethics have a close relationship • Legal rules shape bioethical principles (e.g., informed consent) and bioethical principles influence the law (refusal of life-sustaining treatment, assisted suicide)

3. The law is generally consistent with ethical principles • Contrary to popular belief, legal rules generally should--and do--follow ethical understanding • If it is morally permissible to do something (e.g., discontinue a ventilator), it usually is legally permissible to do so. • If it is morally impermissible to do something (e.g., perform euthanasia), it usually is legally impermissible to do so. • Discriminatory laws are main exception—abuse by the majority of its power

4. Law as consistent with ethics • Legal duties are generally ethical duties. • People have an ethical obligation to obey the law. Therefore legal duties are by definition ethical duties. • Fidelity to the law is essential to an orderly functioning society • Any legitimate system of law must operate in accordance with moral principles • Legal duties tend to entail the imposition of ethical duties (e.g., laws against murder or robbery) • Law seeks to promote justice, ethics to promote morality

5. Law as an ethical minimum • The law typically requires less of people than does ethics. • Although legal duties are usually also ethical duties, many ethical duties are not legal duties (physicians and care for the poor, parents and raising of their children). • The negative rights/positive rights distinction is important here (constitutional right to refuse life-sustaining treatment but not to obtain it).

6. Negative/Positive rights distinction • Reluctance to recognize positive rights (e.g., right to counsel): • Concern about undermining incentives to be productive • Ensuring accountability for one’s decisions • Preservation of autonomy of others • Problem of limits • Problem of enforcement • Positive rights are typically rights against government, not individuals (Medicaid, food stamps, public education, dialysis case)

7. Distinction between permitting and facilitating • Even if society permits a practice, it might choose not to subsidize the practice (the negative/positive rights distinction again and abortion funding as an example). • Thus, President Bush withheld federal funding for research involving the taking of stem cells without proposing federal legislation to prohibit the taking of stem cells with private funds.

8. Public health exceptionalism • Public health questions tend to blur the usual distinctions: • Normally, the Constitution guarantees all persons the negative right to refuse any unwanted medical treatment • However, people do not have a constitutional right to refuse unwanted vaccinations, unwanted treatment for tuberculosis or other public health interventions—courts are much more deferential to public health powers than to other state powers that can infringe individual liberties

9. Public health exceptionalism • Negative-positive right distinction not as clear • My negative right to be free of infection may imply helpful action for others to take (e.g., become immunized) rather than just a duty to refrain from harmful action—or another way to put it is that just being infected causes harm to others • Public health interventions (e.g., mandatory treatments) generally are consistent with the no-trade-off principle • They override the right to refuse treatment but don’t trade off the patient’s health for the benefit of other people’s health • But quarantines can increase a person’s risk of illness

10. Law’s deference to medical judgment • As a general rule, courts—and legislatures—defer to the judgment of health care professionals in resolving dilemmas in medical ethics. • Arline Rehabilitation Act decision by the Supreme Court and deference to the judgment of public health officials (later diluted in Bragdon) • Chicken pox immunization in Indiana

11. Importance of clear rules • Sometimes, law will appear to deviate from ethics, but apparent inconsistency disappears when need for clear guidance is taken into account. • Abortion for any reason before viability

12. Effect of legal rules on future behavior • The “right” decision for the case at hand may create bad incentives for future behavior • E.g., requiring a pregnant woman to accept a cesarean section—may be good for the fetus but may discourage other pregnant women from seeking any prenatal care • Recall the debate in the 1980’s over HIV-testing, reporting and warning

13. Importance of mandates—education important but not sufficient • Communicable diseases and mandatory vaccination statutes • 1949 - The last known case of smallpox in the United States. • 1979 - The last indigenous transmission of wild polio virus in the U.S. All future cases are either imported or vaccine-related. • 2004 – Reported cases of rubella virus dropped to 9 from epidemic levels of 12.5 million in 1964 and 1965. • 2008 – Resurgence of measles (most cases since 2001) following increase in parents rejecting immunization of their children

14. Importance of mandates—education important but not sufficient • Highway safety--Child restraint laws • For 4-7 year-old children, use of booster seats reduced risk of injury in a crash by 59% compared to children who used only a safety belt • JAMA. 2003;289:2835-2840 • IN booster seat law took effect 7/1/05 • Booster seat use 8% in 2003 • Booster seat use 75% in Aug.-Sept., 2005 • Indianapolis Star, October 18, 2005

15. Obstacles to good public health law • Health concerns and private economic interests may conflict (at least in the short-term): • In an era of globalization in which serious outbreaks of communicable disease may be recognized slowly and disseminated rapidly across national boundaries, restrictions on travel are essential to containment, but difficult balance with economic interests. • Quarantined individuals may find it difficult to stay home and forgo wages—laws for job protection and income preservation may be important (especially when sick days or vacation time are not available).

16. Obstacles to good public health law • Health concerns and budgetary constraints may conflict: • When the SARS epidemic began, Canada had in place a world-wide monitoring system for outbreaks of communicable diseases, but one early warning was missed (two months before the first diagnosis in Toronto), and timely health advisories were not received or recognized by health care providers.

17. Obstacles to good public health law • Health concerns and budgetary constraints may conflict (continued): • Preparing for future, uncertain risks can cost significant dollars now (e.g., shoring up New Orleans levees before Katrina) • But once a public health emergency occurs, it may be too late to implement new policy—especially since most legislatures meet only part of the year • Leaves enormous discretion for executive branch

18. Obstacles to good public health law • Health concerns may collide with special interests • The NRA meets public health law: • [T]he public health authority may not prohibit a person lawfully permitted to possess a firearm from possessing one (1) or more firearms unless the person is quarantined in a mass quarantine location. The public health authority may not remove a firearm from the person's home, even if the person is quarantined in a mass quarantine location. • Ind. Code 16-41-9-1.6 (c)

19. Navigating the legislature • Part-time, part-year legislatures offer small windows of opportunity to pass legislation • It’s critical to line up support for a proposal before the legislative session begins—ideally, proponents of a bill start the legislative session (1) with a broad-based coalition of support already formed and (2) already having persuaded key legislators. • If interest groups disagree about a bill, committee chairs often will table the bill until a compromise is reached.