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This is the first in a series of articles on End-of-Life Care and Covert Rationing.  The second article can be found here.

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It is easy to have missed it, because it went by so quickly.

On January 1, the White House announced a new policy that would have paid doctors for discussing end-of-life planning during their Medicare patients’ annual “wellness visit.” Under this policy, physicians would be paid to encourage their patients to establish an advance directive, which would guide medical care if the patient became incapacitated from illness, and could no longer make medical decisions for him/herself.

But on January 5, the new policy was suddenly revoked. It was revoked, CMS lamely explained, because it had not been implemented using the correct process. But, as anyone would know who watched Congress make Obamacare the law of the land, this could not possibly have been the real reason.

The real reason, of course, has to do with the firestorm this new policy threatened to unleash, just as the House of Representatives was about to be taken over by the cretinous opposition party.

As regular readers will recall, the Obamacare bill originally included similar language on advance directives. Physicians were supposed to urge their patients, repeatedly if necessary, to establish advance directives, and their success in extracting advance directives from their patients was to be one of the “performance measures” by which doctors would be judged to be in good or bad standing with the Central Authority.

But then Sarah Palin said “death panels,” and a furor ensued. The provision on advance directives was quickly removed from the Obamacare legislation, as if Congress was admitting that Ms. Palin had been correct and they had been caught out.* Similarly, the effort last month to reinstate the provision failed to stick for fear of criticism at a bad time.

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*The original advance directive provision in Obamacare, of course, had nothing whatsoever to do with “death panels,” since there are no panels of any sort involved in establishing advance directives. Rather, the entities that some might call death panels, and which DrRich has chosen to call GOD panels (Government Operatives Deliberating) – that is, panels of distinguished experts that will determine, by means of “guidelines,” which patients will get what, when and how – remain fully operative within Obamacare.
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DrRich has nothing against advance directives, and indeed, thinks they are a good idea – in concept, at least. Advance directives allow patients to establish beforehand, usually by a written document, what kinds of medical treatment they would or would not want should they fall victim to a serious, life-threatening illness that leaves them unable to express their wishes. Advance directives are supposed to work by providing guidance to their physicians, who, in their fiduciary capacity, are charged with acting in the patient’s best interest.

A well-constructed advance directive allows patients to choose to spare themselves from demeaning, undignified, painful or otherwise undesirable medical procedures and treatments, should they become incapacitated at a later date. “Well-constructed” implies that the advance directives are clearly and concisely written, that they honor the ethical and legal norms approved by society, and that they provide the physician with clear guidance.

But it is more difficult to write a “well-constructed” advance directive than might at first meet the eye. The major problems are two-fold: Advance directives often express imperfect knowledge, and they are often imperfectly expressed. These limitations mean that in appropriately exercising an advance directive, often the physician cannot follow them to the letter, but must interpret them according to the circumstances at hand.

A healthy and relatively robust individual cannot always know how he or she will feel years into the future, when illness strikes and it is time to exercise an advance directive. Every doctor has seen critically ill patients who, despite having advance directives to the contrary, unhesitatingly choose to be attached to a ventilator when the time comes, for instance, rather than face certain imminent death. So experienced doctors know that advance directives do not always indicate what patients will actually choose to do when the time to make a choice is upon them.

They also know that, while conscious patients have the opportunity to repeal their advance directives, unconscious or incapacitated patients do not.** So, in exercising an advance directive, the conscientious physician interprets that directive in light of many other factors, such as, her personal knowledge of the patient, the opinions of family as to what the patient would want done, and the chances of a long-term recovery if the therapy being considered is used. Then she will negotiate with responsible family members an approach that appears to meet the patient’s presumed desires.

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**Conscious patients can repeal their advance directives in theory. DrRich has witnessed actual doctors, however, arguing vociferously against using a medical therapy that a sick patient now desperately wants, because years ago the patient signed an advance directive expressing aversion to that therapy.
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Therefore the advance directive in many cases is an important part of the decision-making process, but it is not the only part. The appropriate use of an advance directive requires the doctor to behave as a true patient advocate, to selflessly place the desires expressed in the directive in context with everything else that might affect the patient’s true and current wishes, and then make a recommendation that, to the best of his or her ability, honors those wishes.

Unfortunately, doctors can no longer act primarily as their individual patient’s advocate. Indeed, physicians are officially enjoined (by the New Ethics formally adopted by their own professional organizations) to give the needs of society at least equal consideration. And so, as has demonstrably happened with other “guidelines” in medicine, it is inevitable that advance directives will be reduced to a legal edict, which must be followed to the letter if the physician wishes to remain clear of the Department of Justice.

The likelihood that there will be no room for interpretation means that constructing just the right kind of advance directive for yourself – one that will be precisely suitable to any contingency that may occur – has become extremely difficult. If you get the details just a little bit wrong for the circumstances that actually arise, the price you pay may be very heavy. It would be better to have no advance directive at all than to have one that is misleading or ambiguous. Advance directives must be written with extreme care, and only after long, thoughtful consideration.

That is not how the government would have it, however. For many years now, the Feds, under the Patient Self-Determination Act, requires hospitals to inform patients about advance directives at the time of every hospital admission, and to invite them to sign one. To say this is a less than ideal time to implement an advance directive would be something of an understatement. Asking a patient to sign an advance directive at the time of hospital admission, often by including it in the pile of routine and mind-numbing legalistic documents which patients must sign if they want to receive medical care, and often with no more guidance than that provided by the admissions clerk (who might explain, “This tells the doctors you don’t want to be kept alive on a machine like a vegetable,”) tells us something about whether the true motive for advance directives is to protect the patient’s autonomy – or to reduce costs.

Having the discussion in a doctor’s office these days, sadly, might not be much better. The Central Authority knows that squeezing what really ought to be at least a 30-minute discussion into a 10-15 minute office visit already packed with Pay for Performance requirements (while providing the added threat of punishment if the physician fails to extract an advance directive from the patient), will yield, at best, a signature on a boiler-plate document.

But despite the slap-dash method by which such a document may be implemented, it is a document whose language – when the time comes – will be exercised with all the legalistic exactitude of a contract attorney by any doctor who knows what’s good for him.

DrRich thinks that Americans are right in being suspicious of the big push they are seeing to urge advance directives upon them. Invoking “death panels” in this regard is utterly inappropriate, but the end result will suffice. It is good that we have all been given pause.

Still, the concept of advance directives is a good one, and DrRich thinks most Americans might do well to have one. Despite the damage that is being done to them, DrRich thinks advance directives can be salvaged. To this end, DrRich suggests several steps we can all take in executing an advance directive that will actually do what we want it to do:

1) Don’t be pressured into implementing an advance directive by anybody whose career depends on keeping the Central Authority happy. Unfortunately, this likely includes your doctor if you are not paying your doctor yourself.

2) Don’t sign a boiler-plate document. These likely will have been drafted with the interests of the Central Authority in mind, with the help of very smart lawyers, and when these documents are called into use in all probability they will be interpreted for the convenience of the Central Authority.

3) Try to keep your advance directive from showing up in an electronic medical record. Write it yourself, and store it where your loved ones can find it when they need it. Give a copy to your spouse, your children, and perhaps (if you have a direct-pay doctor who works only for you) your physician. This way, since your advance directive will not be immediately available to hospital personnel if you are suddenly incapacitated, no unfortunate and irreversible decisions regarding the aggressiveness of your medical care can be made until your loved ones are notified.

4) Write your advance directive as a general guideline, with as few specifics regarding particular types of medical care as possible. You should assume that any type of treatment you mention in a negative light will be withheld under any and all circumstances, including circumstances you may not be aware of in which you would want that treatment.

5) You are not writing your advance directive for the doctors (it is most tragic that we can no longer trust doctors in this regard!); you are writing it to help your loved ones make the right decisions for you, perhaps despite the doctors. So your goal should be to clarify your general desires for your loved ones. Discuss your advance directive with your loved ones after you have written it, and ideally, before you have written it. Your written words will remind them of your wishes when the time is right.

Lest you think, Dear Reader, that  DrRich is merely being sarcastic  here (and why would anyone think so?), he is not. DrRich himself has an advanced directive that attempts to follow these rules. The document is stored at home with his important papers. Mrs. DrRich knows where to find it, and knows DrRich’s general feelings regarding these matters. With the guidance he has provided, DrRich trusts her and his children to make these important decisions for him. For anyone who is interested, DrRich’s advance directive is reproduced, in its entirety, at the end of this post. (The general language, which has been adapted and revised by DrRich for his own use, was originally suggested to him by a good friend who is a superb internal medicine practitioner.)

So. Advance directives are a very good idea, but unfortunately, have been identified by the Central Authority as a potentially powerful cost-cutting tool. Even before Obamacare, certain HMOs were refusing to reimburse hospitals or doctors that provided medical care that seemed to go against specific language contained in an advance directive. That, of course, was child’s play. Now that the Central Authority has gotten hold of them, advance directives will likely be treated the same way as other guidelines are now treated in medicine, that is, as edicts, and thus as vehicles for the criminal prosecution of medical personnel who deign to “interpret” them.

This means that if you wish to take advantage of the benefits which advance directives can provide, you will have to proceed very, very carefully.

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DrRich’s Advance Directive:

If I am able to communicate my wishes by any means whatsoever, then I wish to make my own decisions regarding my own healthcare. If, despite my ability to communicate, my condition makes it inconvenient to fully inform me of my situation and all my treatment options, then until such time as it becomes sufficiently convenient to do so, I want everything possible to be done to sustain my life and effect a recovery.

In the event of an incapacitating illness in which I cannot communicate, the basic guideline initially should be to do everything possible to sustain my life and effect a recovery.

After a reasonable period of time (in general, I would consider a week to be reasonable) if no progress has been made in the recovery of my mental function, and the likelihood of mental recovery is judged to be small, then withdrawal of life-sustaining care should be strongly considered. To help my wife and/or children with this decision, I would like to have an evaluation by a neurologist to help clarify the prognosis.

If improvement in my mental status has been made, then efforts to sustain my life and affect a recovery should be continued.

If at any point in my care there is a period of at least two weeks in which I am persistently unable to carry out meaningful communications sufficient to make my own wishes known (in the opinion of my family members and the neurologist), and the likelihood of mental recovery is judged to be small, then I would consider the withdrawal of life-sustaining care to be a blessing.

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DrRich has now read large portions of the “Patient Protection and Affordable Care Act,” i.e., Obamacare. He finds in it the very essence of Progressivism.  To understand Obamacare, then, we must understand the basics of Progressive thought.

DrRich has always found American Progressives to be a bit enigmatic. He has found much of their behavior to be persistently, almost defiantly, illogical and counterproductive to the rights Americans hold dear, rights which Progressives themselves also insist they revere – in particular, our inalienable rights to life, liberty and the pursuit of happiness.

As long as 20 years ago, DrRich had developed a sneaking suspicion that Progressives, their protests to the contrary notwithstanding, never really bought into the “inalienable” thing. On this point, he concluded, they were prevaricators. Since by then it was beginning to look like the Progressives were going to be running things for a while, it occurred to DrRich that it would be a good idea to understand what they really think, and what their agenda really was. And so, after much time and study and contemplation, DrRich developed his theory of Progressive thought, which he is now pleased to share with his readers so that they, in turn, might better understand Obamacare.

The Roots of Progressivism

When DrRich began his study of Progressives he did not quite know where to begin. So he decided to proceed, like Descartes before him, from the simplest and most irreducible of truths. Namely, that Progressives are really, really smart – or think they are. We know this because all the professors in all the best Ivy League schools are Progressives.

From this simple truth we can deduce that, whatever it is that Progressives are actually up to, it must have its roots in the writings of The Philosopher.

And sure enough, it was not at all difficult to discover the roots of Progressivism within the teachings of Aristotle.

Aristotle tells us that man is innately a political animal, an animal with an inherent propensity to gather into increasingly complex communities. The essence of man, according to Aristotle, is society.

The formation of complex societies is what defines mankind; it is what differentiates man from the rest of the animal kingdom. Hence, because man is defined by society, society is inherently on a higher plane of importance than the individual. Individuals are entirely beholden to and dependent upon and subservient to the society to which they belong. Indeed, they are defined as individuals by their place within that society. Without society, a man is just an ape (with a persistently infantile face).

In this sense, “socialism” is reduced quite simply to a philosophy in which society – the collective – takes precedence over the individual. Furthermore, the precedence of the collective over the individual is not something we can simply choose to accept or reject; it is the very essence of mankind. It is nature. It is just the way it is.

So, as you can see, Aristotle nailed Progressivism.

Clearly, while the name “progressivism” has only been around for a century or so (and we will shortly see from whence the name came), its roots are a very old idea. This idea, in fact, was the normal way of looking at the relationship between individuals and society until just a few hundred years ago, when humanists began to cautiously explore the radical notion that individuals (rather than the collective) constitute the fundamental unit of humanity. The new humanist heresy – which declared the primacy of the individual – was for a long time called “liberalism” (a term whose meaning has, recently, drastically changed, and is now a synonym for what had always been its opposite). Classical liberalism reached its zenith, DrRich thinks, a mere two and a half centuries after its painful birth, with the Declaration of Independence and the Constitution of the United States.

But to Progressives, classical liberalism has always been an aberration. Despite what America’s founding documents might say, society takes precedence over the individual. It takes this precedence by way of the very essence of mankind, as was taught by The Philosopher, and so it cannot be otherwise.

The Progressive Program

The Progressive Program – the thing that makes Progressives progressive – is to develop the perfect society. This program is not optional; it is dictated by the nature of mankind.

Since society is what defines mankind, it follows, as the night follows the day, that the program of mankind, the purpose, the work, the essence of mankind, is to create the perfect society.

The perfect society has two basic requirements. First, it must meet all the basic needs of the individuals within that society (such as food, clothing, shelter, sanitation, and health), without which individuals will always be tempted to engage in the counterproductive behavior of striving for things. Second, the social order must be of such a nature that it can persist, theoretically forever, without fundamental change. Indeed, the very notion of perfection implies that any change, of any type, is bad, since it will necessarily constitute a movement away from perfection.

The perfect society therefore requires complete stability. This would include (at a minimum) a stable population size, the preservation of natural resources and the earth’s environment (indeed, when one hears the word “sustainability,” one is listening to Progressive gospel), the careful management of the economy, and the careful control – if not suppression – of unplanned innovations. This latter refers both to material (or scientific) innovations, and innovations of thought, either of which will always threaten hard-won societal stability.

The perfection of society is the paramount work of mankind, so any method which may help in achieving this perfection is to be embraced; none discounted out of hand. The only considerations one must make in choosing methods of action are: Is this method practicable? And: Is this method more likely to be successful, or counterproductive? These two questions fully define Progressive ethics.

So that’s DrRich’s theory of Progressivism and the Progressive Program. While it is only a theory, DrRich hereby asserts that his formulation is correct.

He makes this assertion for the purpose of advancing the debate and inviting argument. If any of his readers have a better explanation of Progressivism, one that more successfully fits the facts and explains the otherwise difficult-to-explain behaviors we’ve seen from Progressives in recent years, why, DrRich will be delighted to hear it. If it is convincing, DrRich will cheerfully abandon his own theory and adopt yours.

But to accomplish this feat, your theory of Progressivism will have to offer a more successful explanation of the following Progressive behavioral phenomena than DrRich’s theory does:

Individuals and Groups Within Progressivism

While Progressivism by definition places individuals in a subservient position to society, this is not to say that individuals are merely interchangeable cogs in a great machine, or entirely analogous to worker bees in a hive. DrRich’s prior sarcasms aside, Progressive society is not the Borg.

Indeed, individuals within a Progressive society are differentiatable, and can be publicly celebrated or castigated as individuals. But to a great extent the potential worth of an individual is pre-determined by the group to which the individual belongs. Group identity in Progressive society is critically important, as it provides the only feasible means by which the leadership of Progressive societies can attempt to control and direct individual behaviors.

(Group identity is so critically important to Progressive thought that it has been given a special name – “Diversity” – and has been designated as the Cardinal Virtue, from which all the other, subsidiary, virtues – faith, hope, charity and the like – must necessarily spring.)

And so, to stand out as individuals, individuals must stand out as a member of their group, and the manner in which they stand out must fundamentally reflect the assigned essence of their group. So, for instance, Al Sharpton and Jesse Jackson are celebrated individuals, whose accomplishments nicely reflect their assigned group identities. In contrast, Clarence Thomas and Thomas Sowell are not celebrated by Progressives, and indeed are castigated as abominations, because their individual accomplishments do not reflect their assigned group identities.

Therefore, while individuals within Progressive societies can achieve a certain level of importance, individual importance is merely of tertiary concern, rather than primary or even secondary concern. Individuals can become officially “important” only if their importance reflects the essence of their assigned group; and the importance of the assigned group (the secondary concern), in turn, is proportional to its ability to advance the Progressive Program in general (which, of course, is the primary concern).

While individuals have the potential of rising to a state of importance within Progressivism, the vast majority of individuals will never actually do so. The great masses of individuals will be regarded by society as featureless members of their group, and will be treated accordingly. And the status of a particular group is always subject to change, given the extant needs of the leadership class. Certain groups (e.g. labor unions) may be exulted by the leadership, while others (e.g. the elderly, the white males, or the fat) will be devalued. Yet other groups (e.g. illegal aliens) may be celebrated by the leadership at one point in time (when, for instance, it behooves Progressive leaders to acquire voting rights for them before 2012), but then may be dismissed at some other point in time (in 2013, for instance, after the critical votes have been gathered, and now the group just represents large volumes of mouths to feed and healthcare to consume).

Good and Evil In Progressivism

Many Progressive intellectuals are fond of saying there are no absolutes, and so there is no such thing as inherent good and inherent evil. These intellectuals are wrong, even from within the Progressive paradigm. Because the Progressive Program – which, again, is to achieve a perfect society – is the innate agenda for mankind, there indeed exists a standard by which one can determine good and evil.

“Good” is anything which advances the Progressive Program; and “evil” is anything which threatens it.

Anyone who doubts the existence of good and evil within the Progressive Program need only observe the scores of behaviors and figures of speech which are condemned as unrelentingly evil by Progressives, with all the certainty and fervor of a Jonathan Edwards.

Accordingly, individuals who hinder the Progressive Program are a danger to mankind’s very essence. They are evil, and must be rehabilitated or eliminated.

Progressivism and the Leadership Class

Despite its lip service to the contrary, Progressivism is not egalitarian, even in theory.

The duty of mankind is to strive for the perfect society. The chief tool by which mankind is to achieve this program is man’s intellect and logic. It is axiomatic that only a minority of people will have the intellect and logic necessary to direct the program of mankind. Therefore, Progressivism fundamentally relies on an elite corps of individuals to guide our progress toward a perfect society. The perfect society will not just happen, it must be engineered by those who are gifted enough to lead.

The lack of egalitarianism in Progressive thought is illustrated by the special treatment accorded to the elite corps. The leadership class must be nurtured and valued by society. Furthermore, it must be given special privileges which others in society do not have. Because their work is so critical to the essential program, the elite must be removed from worry over the mundane necessities of life. That is, providing the leadership class with certain luxuries and privileges, and even freedom from having to follow all the rules that apply to the masses, is therefore not hypocrisy, but is an essential good. It redounds to the benefit of the Program.

Anyone who has not noticed recent glaring examples of this “different standard” for the Progressive elite should consider activating their “durable power of attorney” forthwith, so that a more alert individual can manage their affairs.

Progressivism and the Unwashed Masses

It goes without saying that, if left to their own devices, the populace would devolve into some primitive societal arrangement (such as capitalism) in which individuals would spend all their time striving to improve their own individual situations, even at the expense of others.

This means that the great unwashed masses must be “managed.”

Ideally, the best way to manage the population is through education, and so all efforts must be made – through formal education and by controlling the public media – to indoctrinate the population to the great benefits of the Progressive agenda, to the natural duty and obligation of all men and women to work within society to realize the Progressive Program, and to the inherent evil of all the alternatives. Since education will never be sufficient, the unwashed masses may need to be controlled through pacification (i.e., attempting to meet all their basic needs, so as to eliminate their impulse to strive). If this fails, they must be controlled through coercion, intimidation, peer-pressure, or (as a last resort or to serve as an object lesson) violence.

Fundamentally, the Progressive Program relies on all members of the great unwashed to subsume their own individual needs to the needs of the collective. That is, the Progressive Program requires a fundamental change in human nature. This change will never be forthcoming, and so Progressives are apparently doomed to be frustrated in their efforts. (However, as we will see shortly, Progressives ultimately have the answer to this problem, as well.)

So, despite their frequent hymns of praise to the worthiness of the common man, Progressives invariably develop an underlying contempt toward the unwashed masses. It is not difficult to spot this contempt if one is alert to it.

Progressivism and Politics

Under the Progressive Program, just like Aristotle says, mankind is essentially a political animal. In fact, the Progressive Program can only be achieved by political action. This means that politics – and to be clearer, political control – is the fundamental work of Progressives. Without politics, without political control, there is nothing. To lose political power is oblivion.

This attitude toward politics is in stark contrast to the attitude of conservatives, for whom government (and therefore politics) is merely a necessary evil, with which one must occasionally contend, when it cannot be avoided, as a part of life. For most conservatives politics is an afterthought.

For Progressives, politics is everything, the essence of human behavior. And it is worth any cost, any desperate measure, to maintain political control. Indeed, to fail to lie, cheat and steal in order to keep political control would be unethical.

Progressivism and Religion

Progressives have a natural adversity to organized religion. For one thing, religions tend to give a higher priority to some supernatural entity (and worse, to an afterlife), than to mankind’s “true” imperative, which is to achieve a perfect society right here on earth. However, since religious leaders can be readily coerced to serve the needs of the state (and always have been), this is not an insurmountable problem.

The real difficulty with organized religion is that the major ones stress the importance of the individual (since individual salvation, or individual enlightenment, is the major theme of the big religions). Under progressivism the inherent importance of individuals is necessarily subsumed by the importance of the collective, so by focusing the ultimate meaning of life on the individual, traditional religions become a major threat to Progressivism.

Apparently realizing that abolishing religion is far too difficult a task, Progressives have adopted the long-term strategy of infiltrating and co-opting religious establishments, and by means of introducing new ideas – such as group salvation, and the concept of social justice as a religious imperative – rendering religion, this “opiate of the masses,” less incompatible with the Progressive Program.

Progressivism and Eugenics

Since World War II, the enthusiasm with which Progressives publicly embrace the idea of eugenics has become muted. But eugenics is, in fact, inherently bound to Progressivism. One way or another, a perfect society will require far more perfect citizens than we have today. Indeed, the seething contempt with which Progressives regard the current genetic pool that comprises the unwashed masses is often difficult for them to suppress.

To a large extent, modern Progressivism was born as an offshoot of Darwinism. The idea that society could be perfected, and the idea that mankind could be perfected, were two sides of the same notion. And early Progressives unabashedly embraced both of these ideas, such that the idea of “culling the herd” became extraordinarily attractive to them – and they said so. Theodore Roosevelt, Woodrow Wilson, Bertrand Russell, H. G. Wells, and Margaret Sanger (the founder, as it happens, of Planned Parenthood) are only the most well-known Progressives who extolled the idea of eugenics.

But public support of eugenics among Progressives has become quite subdued, ever since the Nazis committed their atrocities explicitly in the name of achieving societal perfection.

One can argue, of course, whether the recent Progressive support of such activities as late-term abortions, or creating human embryos for experimentation, are partially aimed at desensitizing the public for future efforts to “guide” a more favorable genetic makeup for the population. Either way, DrRich reminds his readers of the history of Progressivism in this regard, and of the inherent attractiveness of eugenics to the Progressive Program, and urges them to remain alert.

Progressivism and Environmentalism

Radical environmentalism and the Progressive Program are not perfectly compatible. But they are close.

Radical environmentalists believe that humanity is a plague upon Planet Earth. Everything man has done since the day he first learned to cultivate crops (and thus for the first time became a different kind of animal) has been bad. And anything which delays, halts or reverses the sins mankind has perpetrated upon sacred Gaia, since that day he first departed from Nature, is a good thing. So the radical environmentalists are in favor of strong central governments which will control the behaviors of individuals (and which might ultimately drastically reduce or eliminate the human population).

Progressives are certainly on board with controlling man’s effect on the environment, but (in most cases) they are not in favor of returning mankind to a hunter/gatherer condition (since most Progressives do not view this condition as the embodiment of a perfect society). Rather, they view the environmental movement – in particular, the Global Warming Theory – as a good way to get the populace to give them the power they need to carry out their Progressive Program. So Progressives have completely embraced the Global Warming Theory as a means to their own political end. Accordingly they have declared man-made global warming to be settled science, and they suppress any efforts to study it further.

DrRich is very sorry about this. He suspects that global warming is happening, and concedes that human behavior may be playing a role, and is saddened that this scientific question has been absorbed into the Progressive agenda in such a way that we are not allowed to find out what’s really going on.

Progressivism and the Great American Experiment

Unlike any other nation in the history of mankind, the United States was not founded because of geography, race, religion or ethnicity. It was founded on an idea. It was founded on the still-radical idea that individual autonomy – the individual’s God-given right to life, liberty, and the pursuit of happiness – is the chief Fact of humankind, and that the only legitimate role of government is to create an environment in which individuals can enjoy those rights to the fullest extent possible.

One can see immediately that the Great American Experiment – which awards primacy to individual autonomy – is fundamentally incompatible with Progressivism. But because a majority of Americans still like the ideas expressed in the Declaration of Independence, the Progressives need to play their cards close to their chests. They need to proceed carefully – but relentlessly.

By slowly re-interpreting the Constitution, and slowly addicting a critical mass of Americans to an array of government programs, Progressives are certain they will ultimately prevail. They have been at it for over 100 years, and have come a long way. DrRich cannot tell whether or not we have already passed the Event Horizon, the point beyond which restoring the Great American Experiment will become impossible. But we are at least very close.

In fact, one plausible theory for President Obama’s headlong pursuit of programs and policies which anger the majority of Americans, and which gravely and immanently threaten the political control which is the center of the Progressive universe, is that he sees America as being at the very cusp of that Event Horizon, and believes that one last, small push will gain it, and make the Progressive Program irreversible, whatever might happen in the next election or two.

Progressivism and Healthcare

DrRich does not need to say much about Progressivism and healthcare right now. Many of the posts in this blog have pertained to this very question, as, undoubtedly, will many more.

But to really understand the current American healthcare system, and to understand Obamacare (the future American healthcare system), it is necessary to understand Progressivism. DrRich sincerely hopes that this current post will help a few of his readers understand, if not Progressive thought itself, at least DrRich’s conceptualization of it.

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DrRich’s Independence Day Address to his Loyal Readers:

DrRich has always found it fascinating that the television show, “House MD” has remained so popular for so long. After all, Gregory House embodies the polar opposite of what we all say we want in a modern physician. House may be brilliant, but he’s antisocial, arrogant, sloppy and rude. He holds his patients in contempt, and considers them to be mentally deficient, or prevaricators, or both. He will take any action he deems necessary, however illegal or immoral it may be, to make sure his patients get whatever medical interventions he has determined they need, whether they (or anyone else) likes it or not.

And when he does what he does, the individual autonomy of his patients never, ever enters his mind.

Given that House extravagantly violates his patients’ autonomy whenever he can find any excuse to do so, joyfully proclaiming his great contempt for them and their individual rights, then why is his story so popular in America and around the world?

DrRich believes that the answer to this question ought to remind us of the fundamentally precarious nature of individual autonomy within our healthcare system, and within our culture.

Individual Autonomy in Medicine

Maintaining the autonomy of the individual patient has become the primary principle of medical ethics. And medical paternalism, whereby the physician knows best and should rightly make the important medical decisions for his or her patient, is supposed to be a thing of the past.

It has been formally agreed, by medical ethicists all over the world, that patients have a nearly absolute right to determine their own medical destiny. In particular, unless the patient is incapacitated, the doctor (after taking every step necessary to inform the patient of all the available options, and the potential risks and benefits of each one) must defer to the final decision of the patient – even if the doctor strongly disagrees with that decision. Hence, the kind of behavior which is the modus operandi of Dr. House should be universally castigated.

The notion that the patient’s autonomy is and ought to be the predominant principle of medical ethics, of course, is entirely consistent with the Enlightenment ideal of individual rights. This ideal first developed in Europe nearly 500 years ago, but had trouble taking root there, and really only flowered when Europeans first came to America and had the opportunity to put it to work in an isolated location, where rigid social structures were not already in place. The development of this ideal culminated with America’s Declaration of Independence, in which our founders declared individual autonomy (life, liberty and the pursuit of happiness) to be an “inalienable” right granted by the Creator, and thus predating and taking precedence over any government created by mankind. And since that time the primacy of the individual in American culture has, more or less, remained our chief operating principle. Individual autonomy – or to put it in more familiar terms, individual freedom – is the foundational principle of our culture, and it is one that is perpetually worth fighting and dying to defend.

So the idea that the autonomy of the individual ought rightly to predominate when it comes to making medical decisions is simply a natural extension of the prime American ideal. It is obvious, most think, that this ought to be the governing principle of medical ethics.

Dr. House: The Champion of Beneficence

But unfortunately, it’s not that easy. There’s another principle of medical ethics that has an even longer history than that of autonomy – the principle of beneficence. Beneficence dictates that the physician must always act to maximize the benefit – and minimize the harm – to the patient. Beneficence recognizes that the physician is the holder of great and special knowledge that is not easily duplicated, and therefore has a special obligation to use that knowledge – always and without exception – to do what he knows is best for the patient. Dr. House is a proponent of the principle of beneficence (though he is most caustic and abrasive about expressing it). DrRich believes House is popular at least partly because the benefits that can accrue to a patient through the principle of beneficence – that is, through medical paternalism – are plain for all to see.

Obviously, as “House MD” nicely illustrates, the principles of beneficence and of individual autonomy will sometimes be in conflict.  When two worthwhile and legitimate ethical principles are found to be in conflict, that is called an ethical dilemma. Ethical dilemmas are often resolved either by consensus or by force. In our culture, this dilemma has been resolved (for now) by consensus. The world community has deemed individual autonomy to predominate over beneficence in making medical decisions.

DrRich’s point here is that Dr. House (the champion of beneficence) is not absolutely wrong. Indeed, he espouses a time-honored precept of medical ethics, which until quite recently was THE precept of medical ethics. There is much to be said for beneficence. Making the “right” medical decision often requires having deep and sophisticated knowledge about the options, knowledge which is often beyond the reach of many patients. And even sophisticated patients who are well and truly medically literate will often become lost when they are ill, distraught and afraid, and their capacity to make difficult decisions is diminished. Perhaps, some (like House) would say, their autonomy ought not be their chief concern at such times. Indeed, one could argue that in a perfect world, where the doctor has nearly perfect knowledge and a nearly perfect appreciation of what is best for the patient, beneficence should take precedence over autonomy.

Why Autonomy Predominates

In this light it is instructive to consider just how and why autonomy came to be declared, by universal consensus, the predominant principle of medical ethics. It happened after World War II, as a direct result of the Nuremberg Tribunal. During that Tribunal the trials against Nazi doctors revealed heinous behavior – generally involving medical “research” on Jewish prisoners – that exceeded all bounds of civilized activity. It became evident that under some circumstances (circumstances which were extreme under the Nazis, but which are by no means unique in human history) individual patients could not rely on the beneficence of society, or the beneficence of the government, or even the beneficence of their own doctors to protect them from abuse at the hands of authority. Thus, the ethical precept which asks patients ultimately to rely on the beneficence of others was starkly revealed to be wholly inadequate; and indeed, invites horrific results. Thus the precept of individual autonomy won out not because it is so inherently superior, but by default.

Subsequently, the Nuremberg Code of medical ethics was drafted and formally adopted worldwide. The Nuremberg Code officially declared individual autonomy to be the predominant precept of medical ethics, and the precept of beneficence, while also important, was declared to be of secondary concern. Where a conflict occurs between these two ethical precepts, the patient’s autonomy is to win out.

Again, this declaration was not a positive statement about how honoring the autonomy of the individual represents the peak of human ethical behavior. Rather, it was fundamentally a negative statement: Under duress (the Nuremberg Code admits) societies (and their agents) often behave very badly, and ultimately only the individual himself can be relied upon to at least attempt to protect his or her own best interests.

House vs. Autonomy and the Great American Experiment

DrRich will take this one step further: when our founders made individual autonomy the organizing principle of a new nation, they were also making a negative statement.

From their observation of human history (and anyone who doubts that our founders were intimately familiar with the great breadth of human history should re-read the Federalist Papers), they found that individuals could not rely on any earthly authority to protect them, their life and limb, or their individual prerogatives. Mankind had tried every variety of authority – kings, clergy, heroes, philosophers and professors – and individuals were eventually trampled under by them all. In the spirit of the Enlightenment, and because everything else had been tried many times and had failed, our founders declared individual liberty to be the bedrock of our new culture.

There is an inherent problem with relying on individual autonomy as the chief ethical principle of medicine, namely, autonomous patients not infrequently make very bad decisions for themselves, and then they – and their loved ones, and sometimes society – have to pay the consequences. The same occurs, of course, when we rely on individual autonomy as the chief operating principle of our civil life. The capacity of individuals to fend for themselves – to succeed in our competitive culture – is not equal, and so the outcomes are decidedly unequal. Autonomous individuals often fail – either because of inherent personal limitations, bad decisions, or bad luck.

So whether we’re talking about medicine or society at large, despite our foundational principles we will always have the temptation to return to a posture of dependence – of relying on the beneficence of some authority, in the hope of achieving more overall security or fairness – at the sacrifice of our individual autonomy.

In DrRich’s estimation the popularity of “House MD” is entirely consistent with this very strong tendency. Indeed, he thinks, the writers are compelled to make Dr. House as unattractive a person as he is, just to temper our enthusiasm for an authority figure who always knows what is best for us and acts on that knowledge, come hell or high water. If a figure such as Dr. House was also a compelling personality and had a gift with words, he would become almost Messianic – far too dangerous a prospect for a television program.

Those of us who defend the principle of individual autonomy – and the economic system of capitalism that flows from it – all too often forget where it came from, and DrRich believes this is why it can be so difficult to defend. We – and our founders – did not adopt it as the peak of all human thought, but for the very practical reason that ceding ultimate authority to any other entity, sooner or later, guarantees tyranny. This was true in 1776, and after observing the numerous experiments in socialism we have seen around the world since that time, is even more true today.

Individual autonomy will always be a very imperfect organizing principle, both for healthcare and for society at large. Making it an acceptable principle takes perpetual hard work, to find ways of smoothing out the stark inequities that will always result, without ceding too much corrupting power to some central authority. This is the Great American Experiment.

Those of us who have the privilege of being Americans today, of all days, find ourselves greatly challenged. But earlier generations of Americans faced challenges that were every bit as difficult. If we continually remind ourselves what’s at stake, and that while our system is not perfect or even perfectable, it remains far better than any other system that has ever been tried, and that we can continue to improve on it without ceding our destiny – medical or civil – to a corruptible central authority, then perhaps we can keep that Great American Experiment going, and eventually hand it off intact to yet another generation, to face yet another generation’s challenges.

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Now, read the whole story.

DrRich explains it all in, Fixing American Healthcare – Wonkonians, Gekkonians and the Grand Unification Theory of Healthcare.

Now on Kindle!

Podcast:

Recently, DrRich wrote a series of posts detailing how the American healthcare system – even before the new reforms kick in – is taking steps to prevent individual citizens from being allowed to spend their own money on their own healthcare. Part of that effort, of course, is to restrict physicians from offering direct-pay medical services to their patients.

DrRich may have given the impression that only primary care doctors are affected by efforts to restrict their practices in this way. If so, he apologizes.

He particularly owes an apology to his friends the dermatologists. Indeed, DrRich has been reminded of an article that appeared in the New York Times a while back, which castigated dermatologists for the sin of establishing direct-pay practices, and in particular, for creating their own brand of a two-tiered healthcare system – one for patients with skin disorders, and one for “cosmetic dermatology.”

As the Times describes it, patients who wish to see a dermatologist for, say, possible skin cancer are put on a waiting list, and when their appointed time finally arrives (generally several months later) they are subjected to modern medical hell. To wit: Upon arriving in a lackluster office, the patient is shelved for a while in an unattractive, poorly lit waiting room equipped with a broken TV, fuzz balls on the floor, old magazines, the unruly children of other patients, and surly office personnel. Eventually the now-even-more-disheartened patient’s name is called by an indifferent nurse practitioner, who, operating from a checklist of questions, will “triage” her to the appropriate patient-category (e.g., acne, fungus, cancer, warts- you know, dermatology stuff), then have her strip in order to fully expose the large organ (i.e., the skin) for which she has sought assistance, hand her a scratchy yellow paper gown to cover her nakedness, and have her wait for some time in a chilly exam room to see His Holiness, the actual doctor. At last the dermatologist arrives, mutters a greeting (or some other ritual uttering), glances at a clipboard, and announces, “Show me your [acne, fungus, cancer, warts];” whereupon, having regarded the cause of cutaneous concern, and having made a professional determination, he either signs the prescription that has been pre-written for him by the nurse practitioner, or schedules a procedure. Then, placing her bundle of clothing into her arms and wishing her a good day, the doctor shoves her out into the hall to finish dressing, as the formal interview is completed, and the exam room is at a premium.

Presumably, one hopes, some dermatology practices not visited by the New York Times might not be quite so bad. Still, anyone who’s been seen by an American PCP lately will nod sympathetically at the dermatology patient’s ordeal.

Now observe what the Times observes when the patient, instead of having an actual skin problem, merely is sagging here and there and wishes to be shorn up. That is, the patient has a cosmetic issue. That is, the patient wants Botox.

The same dermatologist will often have an entirely different setup for these patients. This time the patient is seen immediately, possibly the same day, as dermatologists are sensitive to the needs of their clients who have an impending public engagement, and thus need to look their best. If this patient is to wait at all, she will wait in a modern, tastefully decorated private room. She will then be seen not by a mere nurse practitioner but by an aesthetician, who will do a careful assessment of the sagging parts, and, aside from suggesting more injection sites than the patient might originally have had in mind, will offer a complete program for long-term cosmetic maintenance, which naturally will include quarterly Botoxification. At just the proper moment the dermatologist comes in, greets the patient warmly and reassuringly; then reviews the recommendations of the aesthetician and discusses those recommendations at length with both the aesthetician and the patient, studying the patient’s face in depth as he does so, pointing, nodding, studying, adjusting, all the while smiling confidently. Yes, he indicates, we will all be very happy indeed with the results. Finally the doctor begins to make the now-thoroughly-discussed-and-agreed-upon injections, doing so with the greatest solicitude and sensitivity. The patient is then given as much time as she needs to collect herself, and is invited to “recover” in a room set aside for this purpose, with flattering lighting, soft music, a cappuccino machine, and perhaps a glass of wine. She leaves the office a new person. And, just as the dermatologist has promised, all are indeed very happy with the outcome.

Naturally, the New York Times is scandalized by the dichotomy which its discerning readers will note here. Why should a patient with a mere cosmetic issue be treated so well, when a patient with an actual medical problem, possibly even skin cancer, is treated so shabbily? How can dermatologists openly encourage such a two-tiered system?

DrRich has a word of advice for the scandalized reporters of the New York Times, and any other concerned Americans who are worried that dermatologists, by setting up separate-but-not-equal practices for their two kinds of patients, are moving us one step closer to the dreaded two-tiered healthcare system we all abhor. That word is: Chill.

Allow DrRich to support this friendly recommendation with two observations.

1) We already have a multi-tiered healthcare system, and little or none of it is the fault of dermatologists. It is the fault of human nature. All countries have at least a two-tiered healthcare system, including countries (like Cuba and China) that have specifically embraced egalitarianism (rather than individual autonomy) as the fundamental operating principle. A second tier is necessary if for no other reason than political leaders and other individuals critically important to the collective effort must have somewhere to go for their healthcare.  The second tier, like the poor, will always be with us.

2) When a dermatologist spends Tuesday afternoon in her run-down office, treating people who come to her for bona fide skin disorders like they’re not really patients but widgets on an assembly line, then spends Wednesday in her other, much more amenable offices, treating the merely cosmetically-challenged like they are minor nobility, she is not really engaging in two-tiered healthcare. Not at all. Instead, on Tuesday she is practicing real, true, prescribed-by-society, by-the-book American healthcare, just as our leaders (in their wisdom) have carefully set it up for us, and on Wednesday she is doing Something Altogether Different.

Injecting Botox is officially and formally not part of American healthcare. How do we know this? Because it is not covered by Medicare or health insurance. If you want Botox you’ve got to pay for it your own self, just as you do if you want a TV or a car. So by all that is sacred, injecting Botox is NOT American healthcare.

Furthermore, when one looks at it objectively, injecting Botox is not even really practicing medicine, at least not in any true sense. In actual truth, it takes very little training or expertise to inject Botox. There’s no reason one must go to college, graduate from medical school, or do several additional years of training in dermatology (or any other specialty) to do this. Anyone with a needle and syringe, an alcohol wipe, and access to Botox could do as well. Just find the wrinkle and stick it. If they made the materials available over-the-counter, most folks would do just fine with it.

The sheer arbitrariness by which injecting Botox is deemed by the authorities to constitute the practice of medicine can also be illustrated by considering a somewhat different, equally well-known cosmetic procedure, one that also involves injecting substances through the skin via needles, and that has much more to do with the actual skin itself than Botox injections (which do not really affect the skin itself, but only the muscles under the skin). DrRich speaks, obviously, of the tattoo. But unlike making Botox injections, tattooing requires real skill, knowledge, training, expertise and artistic talent. Most dermatologists simply could not manage a highly technical skill like that.  The point being, of course, that if you were to describe Botox injections and tattooing to a visitor from Mars, then ask him/her/it which of these two dermatological procedures ought to require a medical license and board certification, the Martian would get it wrong every time.

DrRich understands, of course, that while administering Botox is, in practical and objective terms, no more practicing medicine than is applying an ice-pack to a bruised knee, legally it is indeed deemed to be the practice of medicine. Accordingly, doctors in general (and dermatologists in particular), relying on this nonsensical designation, have legally cornered the market on Botox injections. So it’s not like you could just set up a booth at the Mall and hire high school students to do this (as you can for, say, ear-piercing – which, in contrast to Botox injections, is an actual surgical procedure which is intended to result in a permanent structural change in a body part). If you set up a chain of Botox Booths, you would be practicing medicine without a license, which is a serious crime.

But fundamentally, while performing Botox injections may have a certain legal status, in any true sense it is not really practicing medicine.  Not when ear-piercing and tattooing are not. Rather, in real life, injecting Botox is simply an activity some dermatologists may choose to do when they’re not doing real dermatology.

To say it another way, when the dermatologist goes to her “other office” to cater to a self-paying variety of clientele, she is practicing medicine only from the most arbitrary and strictly legalistic viewpoint. In real life, she is doing Something Else. She is engaging in a Pastime.

Doctors, of course, often have Pastimes. That is, they partake in activities other than practicing medicine when they could, in fact, be seeing more patients. Some have taken up golf. Others have started side businesses such as restaurants or software companies. Some do charity work, or go to graduate school for an MBA. Still others have opted to work part time in order to raise their families.

Society generally finds such activities acceptable, and – to this point – does not insist that all doctors forgo all other human endeavors in order to see as many patients as humanly possible, during all their waking hours. While society seems to be moving closer to declaring that doctors owe this duty to the collective, it has not reached this point quite yet.

Until society sees fit to legislate otherwise (which, DrRich supposes, could happen really very soon now), doctors will continue to spend some of their time engaging in hobbies and business or family activities outside of the formal healthcare system. Some may even leave the formal healthcare system altogether in favor of these other activities. DrRich himself has done this. And until society renders it officially illegal for doctors to do so, DrRich respectfully asks that doctors be left alone to celebrate their individual autonomy as granted to them under America’s founding documents, whether it’s by establishing authentic Indian restaurants, setting up Botox clinics, or even becoming direct-pay practitioners.

One last word of advice for DrRich’s dermatology friends: Have fun with your Botox clinics for now, fellas and ladies, but please don’t become too invested in them.  This is definitely a shallow-moat line of business, and the only thing that gives you any protection at all is your aura as highly trained specialists, with special and secret knowledge about an organ (i.e., the skin) which visibly droops when the underlying muscles become lax with age and gravity. A single action by forces entirely out of your control – say, Congress or the FDA – could render your monopoly entirely moot overnight, and you will be instantly priced out of business by hordes of PCPs, nurse practitioners, Botox booths in Walmart, and even home Botox injection kits. So please remember to at least keep your hand in genuine dermatology, or get your MBA, or perfect your long iron shots, or even learn a real skill, like tattooing – but do something that will provide you with a Plan C. Because Plan Botox is definitely a high risk endeavor over the long term.

________________________________

Now, read the whole story.

DrRich explains it all in, Fixing American Healthcare – Wonkonians, Gekkonians and the Grand Unification Theory of Healthcare.

Now on Kindle!

Podcast:

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Part 1 of Limiting Individual Prerogatives

Part 2 of Limiting Individual Prerogatives

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The thing about Progressives is that the characteristic which makes them most endearing (and, which makes them most attractive to the unaware), is the very characteristic which makes them the most dangerous.

Fundamentally, Progressives believe in the perfectibility of mankind, or at least, of society. Indeed, they have discovered the very Program which will lead to the perfect society, a society which will maximize the good of the whole. Their vision is so compelling, and their ends so utterly and undeniably right, that it becomes legitimate for them to engage in whatever means are necessary to achieve it. (Indeed, for those who have been paying attention, “By Whatever Means Necessary” appears to have supplanted “Hope and Change” as the catchphrase of our current political leaders.)

The thing that always trips up Progressives (and their more revolutionary cousins, the Communists), is, of course, human nature. In order for their Program to work, it is necessary for each individual to behave in the prescribed fashion. And, at the end of the day, a substantial proportion of the population (any population) will insist on striving for their own individual benefit, rather than (as the Program requires) for the benefit of the collective.

The major competing system of societal organization – capitalism – recognizes this facet of human nature (i.e., the essential imperfectability of mankind, as manifested by the non-suppressibility of self-interest), and attempts to channel it into relatively productive and non-destructive (but still competitive and individually-directed) behaviors that limit the damage, and maximize the public good to a reasonable degree.

In contrast, Progressives attempt to change human nature to fit their inherently superior Program.

The fact that you cannot change human nature to fit the Program is what makes them dangerous. Their initial wide-eyed optimism that us folks will just “get it,” once they explain it to us, invariably evolves to an essential contempt for our limited intellectual capacity. This contempt justifies all manner of prevarications, to fool us into going along. Even in societies where the tyranny of correct-thinking has gone so far as to elicit the cooperation of the people at the point of a gun (rather than through the preferred methods of “education” or misdirection), the achievement of the predicted perfect society is invariably prevented by the recalcitrance of human nature. (The final realization that not even an all-powerful central authority can make people behave in the prescribed way always produces a nearly psychotic frustration that – in virtually every Communist country – has led to atrocities against various subsets of the recalcitrant people.)

DrRich does not believe there will ever be pogroms in the United States.

But this does not mean that the Progressives will always be kind and gentle as they attempt to achieve their goals. As DrRich sees it, in the U.S. the Progressives have clearly evolved to the “contempt for the masses” phase of their Program, a phase which justifies all manner of techniques – just this side of violence – to get us all to cooperate. Currently they are intent on demonizing their opponents as being racist, stupid, uneducated, selfish, overly dependent on outmoded supernatural beings, violent, and (of course) obese. This demonization is quite useful, since there is obviously no need to address any actual ideas put forth by such as these, even if they were capable of the feat of “ideas.”

Healthcare is, at present, the chief battleground in the war between Progressives vs. non-Progressives in the U.S., and the outcome of this battle will likely determine the success or failure of the entire Progressive Program. And the most fundamental (and emblematic) aspect of this battle is over what to do about the “doctor-patient relationship.”

The classic doctor-patient relationship was a celebration of the primacy of individual rights. And, for over 2000 years (at least since the advent of the Hippocratic Oath) guaranteeing the sanctity of that relationship was the basis of all medical ethics.

Until very recently doctors, patients, philosophers and ethicists recognized that, when you are sick, you are no more capable of navigating a complex and hostile healthcare system than are accused felons a complex and hostile legal system, and you are no less in peril if you run afoul of that system. And, just as the felon has a right to a personal advocate, a professional whose job is to protect his individual interests against the conflicting aims of the “system,” so does the patient. That is (quaint conventional wisdom held), when you are sick, you should be entitled to at least the same protections as when you rob a convenience store. And the doctor-patient relationship was supposed to guarantee you that right.

This is why, throughout the ages, the basic precepts of medical ethics were aimed at guaranteeing the sanctity of the doctor-patient relationship. Fundamentally, these ethical precepts required the physician to place the needs of his or her individual patient above all other considerations.

It should be clear to everyone that, under either our “old” healthcare system or the one that Obamacare promises us, this formulation of the doctor-patient relationship cannot be allowed to stand. Neither the insurance executives nor government officials can allow spending decisions – that is, decisions on how to spend their money – to be made by individual patients (and their personal advocates). For this reason, the classic doctor-patient relationship had to go.

And so, in 2002, official medical ethics was formally amended to require physicians (while still giving lip service to their obligation to individual patients) to strive for a “just distribution of healthcare resources.” That is, official medical ethics now makes it ethical for physicians to ration healthcare, covertly, at the bedside – and indeed, makes it unethical for them to fail to do so.

The New Ethics has been enthusiastically supported by medical ethicists worldwide (a field which now seems to be dominated by utilitarians), and worse, has been embraced by all the world’s major medical professional organizations. DrRich has not embraced the New Ethics (on the grounds that it places individual patients at great peril, and destroys the profession of medicine), and neither have many (possibly a majority) of older physicians. But it has been taught in medical schools around the world for over a decade, and in another decade it is likely that the vast majority of practicing physicians will accept as a matter of course that their primary obligation is to control healthcare costs, and only secondarily to try to meet the needs of their individual patients.

The plan, therefore, is for Obamacare to provide physicians with directives from expert panels on which medical services to supply to which patients and when, and for the New Ethics to allow physicians who go along with such directives to live with themselves. The feasibility of this plan depends entirely on physicians acceding to the program.

So, incentives are being put in place to “help” doctors cooperate. Quality measures will be implemented, with “quality” being defined as doctors doing what they’re told, and reimbursement will be tied to one’s quality rating. Possibly more persuasive will be the fact that the Feds can construe the failure to follow handed-down rules, regulations and guidelines, at any time, as a federal crime. (Even doctors who don’t mind being labeled as “substandard quality” – perhaps even considering the label as a badge of honor – will mind going to jail.)

But by whatever means necessary, the happiness of the government is to be the doctor’s first consideration, and not the happiness of their individual patients. The classic doctor-patient relationship is being terminated with extreme prejudice.

To see just how important it is to destroy the doctor-patient relationship, one merely has to observe what is happening to primary care doctors who have the audacity to leave the system, and set up a direct-pay medical practice.

Part of the problem, to be sure, was caused by these doctors themselves. The first few to do so unabashedly catered to rich patients, and to attract the rich, referred to themselves as “concierge” practitioners. This name (and its elitist connotations) have been forcibly affixed to all direct-pay practitioners, even as this style of practice has evolved into a much more democratic form. Today, more and more doctors are starting direct-pay practices (in which patients pay the doctors out of their own pockets) which are easily affordable to anyone who can afford a cell phone or cable TV contract.

While many direct-pay practices offer patients certain benefits they can usually not get from primary care doctors who remain in the approved system (such as phone and e-mail access, same-day appointments, appointments lasting as long as necessary instead of the allotted 7.5 minutes, etc.), the fundamental benefit, to both the patient and the doctor, is that it restores the classic doctor-patient relationship. The physician’s primary obligation is no longer to the 3rd-party overlord, or to the Progressive ideal of social justice, but to the patient.

And while critics (who abound) attack direct-pay practitioners for their elitism, laziness, and greed, their real issue is that direct-pay practitioners are acting as if their primary duty is to their individual patients, and not to the needs of society. This latter fault simply cannot be tolerated.

Having gained nearly complete control over the behavior of primary care practitioners, it is critical for Progressives – in making sure that practice by handed-down “guidelines” is not simply the only legal way to practice, but also the only ethical way to practice – to shut the door to any alternative forms of primary care. Direct-pay practitioners are a menace because they threaten to raise the expectations of both doctors and patients. Perhaps, doctors and patients might tell themselves, there really is a way to maintain individual autonomy within the healthcare system.

The attacks on direct-pay practitioners have followed the usual scheme Progressives follow when they discover a faction they need to suppress. First, they were ridiculed. “For a Retainer, Lavish Care by ‘Boutique Doctors,’” said a headline in the New York Times in 2005. Then, they were demonized, widely attacked for their elitism, laziness, greed, and lack of fundamental medical ethics. In this latter effort, it was not difficult to find fellow physicians – generally, from the medical organizations which promulgated the New Ethics – to lead the attacks. There are countless examples. DrRich will give just two.

Anthony DeMaria, then President of the American College of Cardiology, criticized the practice of direct-pay medicine in an article in the JACC in 2005, saying, “Personally, I do not mind if people acquire yachts or personal trainers if they have enough money, nor would I object if they secured a physician at their beck and call. However, unlike yachts, health care is not discretionary, and everyone should be entitled to the same quality.” As a matter of social justice, direct-pay physicians improve healthcare quality for only some patients, and so have no place in the healthcare system.

In an article in the New England Journal of Medicine, Troyen A. Brennan (M.D., J.D., and M.P.H., so we know we’re in trouble) really gets to the point. Referring to direct-pay practices as “luxury primary care,” he notes that “traditional medical ethics is rather poorly equipped to address issues related to luxury primary care.” That is, while “traditional” medical ethics always places the individual patient first, that kind of thinking is now outmoded. “(M)ost ethicists now agree that the financial structure of health care is an important subject for ethical consideration. Access to health care, in particular, is a salient ethical issue.” Direct-pay practitioners threaten (by their elitism and the limited size of their practices), to limit access to primary care, and thus are in fundamental violation of medical ethics.

The argument here, for those who missed it (advanced by fellow physicians no less), is that, of the two competing ethical precepts now established by New Medical Ethics (i.e., the physician’s obligation to the individual patient vs. the physician’s obligation to society), clear primacy is to be given to the physician’s obligation to society. Physicians must (like it or not) participate in covert bedside healthcare rationing. Physicians who take the only path remaining to them that allows them to make the individual patient their primary obligation are to be castigated as ethically deficient.

When ridicule and demonization fail to suppress their opposition, Progressive dogma indicates it’s time to resort to force. The first pass in this regard, of course, is always to render the opposition illegal. (Actual violence is reserved for criminals who persist in their misbehavior, despite more polite efforts to get them to behave lawfully.)

Making direct-pay medical practice illegal has not been accomplished yet, but clear efforts have been made in this regard. Noting with alarm the rise of direct-pay primary care, numerous Congresspersons have issued statements of concern, suggesting that perhaps Congress should look into the propriety of such activities.

Indeed, the first step by Congress has already been taken. In 2003, as part of the Medicare Prescription Drug, Improvement, and Modernization Act, Congress directed the GAO to study and report on the effect of direct-pay practices on Medicare patients. The GAO did so in 2005, and a fair paraphrase of its report is as follows: “The practice of direct-pay medicine is not currently a threat to Medicare patients, because the direct-pay movement is not large enough yet to have an impact. If it does begin to have an impact on Medicare patients, action will have to be taken.” That is, direct-pay medicine was considered OK in 2005 not because it was inherently an ethical and legal form of medical practice, but simply because there were not enough practitioners at that time to significantly affect Medicare patients. The clear implication is that Congress stands ready to pass laws outlawing – or, at least, severely limiting – direct-pay practices, as soon as those practices begin to “impact” the system.

Certain state governments are not waiting for Congress to ban direct-pay practices. The state of Maryland (and a few others) have taken the creative position that, because many direct-pay practices work on a retainer basis, they meet the definition of a health insurance company. And as a health insurance company, to be considered legal entities, they have to have millions of dollars set aside to pay for unforeseen “claims.” (Interestingly, this same argument was not applied to Maryland lawyers, who also often work on a retainer model.) According to the Baltimore Sun, the state’s stance in this regard has already successfully caused several primary care physicians to abandon their plans to become retainer practitioners.

Less devious (but more draconian) than the state of Maryland is the state of Massachusetts (whose universal healthcare system, we’ve all heard, is a preview of Obamacare circa 2015). A bill is under consideration in the Massachusetts Senate (Bill 2170) which requires doctors, as a condition of their licensure, to accept payment rates as determined by the government. If it passes, it will be the first actual legislation in the U.S. to ban direct-pay medicine, if only by making it completely impracticable. (Thanks to Dr. Wes for pointing out this important development.)

Since medical licensing is controlled by the various states, of course, it would take 50 bills like the one in Massachusetts to really get rid of direct-pay healthcare. But there are other ways for the Feds to accomplish the same thing. Now that the federal government directly controls all student loans, for instance, it would be a simple matter to make those loans contingent on agreeing to become primary care doctors working strictly within the government controlled system, or to offer loan forgiveness for doctors who agree to do so, or to rescind favorable re-payment conditions (retroactively, and decades after the fact, if necessary) for doctors who go to a direct-pay model later in life.

DrRich does not really know how the Progressives will actually place the final nail in the coffin of the doctor-patient relationship. All he knows is that they have – well, more than the desire – the deep and abiding need to kill that relationship, once and for all. Unless we the people decide we ought to stop them, this is going to happen.

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Part 4 of Limiting Individual Prerogatives

Podcast:

As DrRich helpfully pointed out in his last post, our new healthcare law (Section 3403) creates a new and apparently immutable entity called the “Independent Medicare Advisory Board,” whose job is “to reduce the per capita rate of growth in Medicare spending.” This, in fact, is the right goal. For it is the rate of growth in healthcare spending (and not the absolute amount being spent) that threatens us with societal disintegration within the next couple of decades.

But it is mathematically impossible to attribute this explosive growth rate in healthcare spending to waste and inefficiency. Most of that growth must necessarily be caused by healthcare expenditures that are actually producing some benefit (though, to be sure, some of that benefit is marginal). And this means that in order to reduce the rate of growth, we have to ration healthcare (i.e., to withhold at least some beneficial healthcare from at least some of the people who would benefit from it).

We can only conclude that, in order for the new IMAB to do its designated job, it must ration healthcare. But since the same law that creates the IMAB also stipulates that it must not ration care, the IMAB must necessarily perform that unavoidable rationing covertly. This is a very difficult job, as demonstrated by the fact that the private health insurers (even with the wonderful incentive of profits, and with the full support of Congress) have utterly failed to develop a sustainable business model based on the covert rationing of healthcare.

But still, this is the job that our leaders have now assigned to the IMAB. And so, DrRich has attempted to tease out some of the options which remain available to the Immutables as they embark on their difficult but necessary assignment of covertly rationing our healthcare. (As DrRich will shortly explain, the legal nomenclature for the IMAB is actually a bit confusing and misleading. So for clarity’s sake, DrRich will hereafter refer to this Board as the Immutables.)

DrRich has found, so far, at least three powers which our new healthcare law grants to the Immutables, that will give them at least a fighting chance at success.

1. The most fruitful pathway to covert rationing remains open to them.

The new healthcare law specifically does not allow the Immutables “to ration health care, raise revenues or Medicare beneficiary premiums. . ., increase Medicare beneficiary cost-sharing (including deductibles, coinsurance, and copayments), or otherwise restrict benefits or modify eligibility criteria.” While these prohibitions might appear on the surface to greatly limit the options available to the Immutables, in fact all this language does is to formalize their directive to ration covertly instead of openly. Since covert rationing has long been our society’s policy regarding healthcare, these prohibitions actually change nothing.

What is left to the Immutables, of course, is the most time-honored pathway to covert rationing – coercing the healthcare providers to place the needs of the payers ahead of the needs of their patients. DrRich has posted innumerable examples over the years showing how payers do this. He is confident that the Immutables will employ all the methodologies which have been devised to date for coercing providers, and (with the awful power of the sovereign authority behind them) they will invent some really useful new ones.

2. The Immutables have been granted near-dictatorial authority.

On the surface, one might think of the Immutables as a sort of Mr. Rogers of healthcare – a mild-mannered, friendly, always-helpful, but ultimately undemanding agent for good. One might get this impression by reading the first few paragraphs of Section 3403, which paint the new entity as an “advisory” board, whose main task is to develop “proposals” and “advisory reports,” and these “proposals” and “advisory reports” would solely consist of various “recommendations,” that ought to be “considered” for the purpose of cost reduction.

Indeed, one might get the impression that the main difference between the Immutables and this blog is that the former is appointed by the President, and has a travel budget.

Nothing could be further from the truth. Once the Chief Actuary of CMS determines that the projected per capita growth rate for Medicare exceeds the target growth rate, the Immutables are required to submit a “proposal” which will cut costs sufficiently to bring the growth rate back in line. Then, the Secretary of HHS is required to implement that “proposal” in its entirety, unless Congress acts to block implementation. However, Congress is forbidden from taking any action “that would repeal or otherwise change the recommendations of the Board,” unless it replaces those “recommendations” with its own legislation that would cut Medicare spending to the same target level.

For all practical purposes, then, the cost-cutting “recommendations” which the Immutables would “propose” for “consideration” will be implemented nearly automatically, with the full authority of the Federal government.

And, for all practical purposes, the Immutables will become a new agency of the executive branch, with near-dictatorial authority to cut Medicare spending as it sees fit.

3. The Immutables have been granted the authority to limit private health-care expenditures.

Those who paid attention to the process that brought us our new and transformational healthcare system might recall that the Senate bill, which ultimately became law of the land, was never designed to be actually implemented. It was designed solely to assure 60 votes in the Senate, after which the Joint Conference with the House was to meld the House Bill and the Senate Bill into a workable law.

As part of the negotiations to gain those original 60 votes in the Senate, five or six Democrat Senators cobbled together a list of amendments to the original Senate Bill – the so-called Manager’s Amendments. It is in the Manager’s Amendments that one can find such famous niceties as the bribes paid to Nebraska. But the Manager’s Amendments (which, contrary to the expectations of the actual Managers, are now part of our new healthcare law) contained lots of other stuff as well.

One of the more interesting parts of the Manager’s Amendments (Section 10320) is entitled, “Expansion Of The Scope Of, And Additional Improvements To, The Independent Medicare Advisory Board.”

Section 10320 (which can be found way down on page 2210 of the new law) grants the Immutables (beginning in 2015) the authority to limit all healthcare expenditures, and not just expenditures by Medicare or government-run programs.

To emphasize this expanded authority, Section 10320 changes the name of the Immutables from the Independent Medicare Advisory Board to the Independent Payment Advisory Board. It directs the Immutables (and now readers will understand why DrRich has resorted to this more descriptive name), at least every two years, to “submit to Congress and the President recommendations to slow the growth in national health expenditures” for private (non-Federal) healthcare programs. Furthermore, it allows that these “recommendations” may be implemented by the Secretary of HHS or other Federal agencies administratively.

Ostensibly, the justification for this expansion of the Immutables’ authority is that controlling private healthcare expenditures will directly impact Medicare, since the “target” Medicare growth rate which the Immutables are charged with achieving will be determined by overall healthcare expenditures. More practically, if Medicare patients (who are subjected to arbitrary cost-cutting measures) see their younger counterparts enjoying less restricted healthcare, the old farts are likely to become rowdy. But DrRich suspects there was an even stronger reason to give the Immutables this authority over private healthcare expenditures.

DrRich has often speculated that the real fight regarding healthcare reform will come when the government attempts to limit the ability of American citizens to spend their own money on their own healthcare. This limitation is absolutely necessary if we’re to have a single-payer healthcare system, since if you can spend your own money on your own healthcare, that would be at least two payers. (It would also be “unfair.”)

Many of DrRich’s readers think it’s absurd to think we’re headed toward a single-payer system. DrRich hopes these readers are correct. But he also thinks there’s plenty of evidence that some of our leaders are intentionally taking us there. The new healthcare law, at least arguably, is entirely consistent with such an ultimate goal. And if we are ever to have a single-payer system, the government ultimately will need the authority to limit private expenditures.

DrRich does not believe that the Immutables will act immediately to limit the ability of private citizens to spend their own money on their own medical well-being. Such an action would create a great uproar today, and likely for several years to come, at least until those of us who still cling to the quaint notion of individual autonomy are finally worn down, or re-educated, or otherwise made to see the light.

But whenever that time comes, Section 10320 of the new healthcare law appears to give the Immutables all the authority they will need.

(At the same time, those who castigate DrRich for paranoia might consider reading just how far our healthcare system has already come in limiting the prerogatives of individuals.)

In his last post, and not without some little trepidation over the propriety of doing so, DrRich offered to enter into a “constructive dialogue” with Bob Doherty of the ACP Advocate Blog, regarding the important topic of medical ethics. What occasioned this offer was the fortuitous selection of each of us as finalists in the 2009 Medical Weblog Award Competition, in the category of Best Health Policy/Ethics Blog.

Ever since the inception of the Covert Rationing Blog (and even before that, in his book) DrRich has taken strong exception to the new code of “medical ethics for a new millennium,” formally promulgated in 2002 by the American College of Physicians and several of its equally respected sister organizations (a grouping DrRich has termed the Millennialists). And when he saw that the ACP Advocate Blog (an official publication of a principle component of the Millennialists) had become a co-finalist for a Weblog Award in the category of medical ethics, DrRich could not resist offering to engage in a discussion over same.

DrRich is delighted to report that Bob Doherty, who, in addition of being the author of the ACP Advocate Blog, is also the ACP’s Senior Vice President of Governmental Affairs and Public Policy, has graciously agreed to the suggested exchange of ideas. Mr. Doherty reports that he will be posting a reply to DrRich’s “challenge,” once he finishes consulting with the ACP’s Center for Ethics, Professionalism and Human Rights. And so, dear readers, it appears that DrRich (your humble correspondent) has gotten himself into a situation. It appears he will be engaging – at his own instigation, no less – with actual, certified experts on medical ethics, regarding the topic: medical ethics.

DrRich can almost hear some of his loyal readers gasping: “Why, he’ll be skinned alive!”

But fear not. DrRich will not hurt him. DrRich does not flay anybody, and promises to remain entirely civil and friendly in this exchange. DrRich, upon his honor, will see to it that Mr. Doherty (and whatever friends he may enlist in the cause) will emerge from this encounter entirely intact, integumentarily speaking.

In fact, to show his great good faith (and to level the playing field), DrRich will now break with all the conventions of debate, and before Mr. Doherty posts his reply, will lay the rest of his cards upon the table, so that the opposition will have the advantage of knowing ALL of DrRich’s arguments before they commit themselves to an answer. That is how dedicated DrRich is to keeping this competition friendly and respectful and fair.

DrRich’s Argument So Far

In his previous, challenge-issuing post, DrRich described how the “New Ethics” advanced by the Millennialists obligates the physician to strive for the ethical precept of Social Justice, which is to say, for “the fair distribution of healthcare resources.” So the doctor is now charged with deciding which patients may receive, and which may not receive, certain healthcare resources. To say it another way, under this new conception of medical ethics the doctor is assigned the duty to ration healthcare, covertly, at the bedside.

DrRich further described how this New Ethics fundamentally wrecks the doctor-patient relationship, and thus leaves patients to their own devices within a hostile healthcare system. In addition DrRich asserted that, once they adopted this New Ethics, physicians surrendered their claim to the title “professional,” and accordingly, made themselves fair game to whatever treatment, tactic, or travesty that any more powerful interest group (such as trial lawyers or Congress or regulators or insurers) may choose to foist upon them. Physicians no longer have any ethical standing for turning such attacks aside. Rather, as non-professionals, their ability to withstand attacks can only be proportionate to whatever socioeconomic or political pressure they can muster. So, as DrRich sees it, the New Ethics promulgated by the Millennialists is pretty much a disaster for both doctors and patients.

This is the extent of the argument DrRich has advanced so far.

Here Are The Rest Of DrRich’s Cards

The Millennialists did get one thing right in this effort. They correctly diagnosed the fact that old-fashioned, “classic” medical ethics, as advantageous as it may have been to both patients and doctors, is no longer consistent with reality.

Under classical medical ethics, the doctor’s one and only ethical obligation was to the individual patient. And so, classic ethics did not allow for any limits whatsoever on the medical services a patient may receive. If some bit of available medical care might offer even a small nugget of hope, doctors were obligated to provide it, no matter how expensive it might be to do so.

It is important to recognize that classic medical ethics evolved during a time when medical technology was relatively primitive, limited, and cheap, and more importantly, at a time when patients paid for their own healthcare. So when classic medical ethics was formulated, “healthcare spending limits” (though nobody talked in such terms back then), were self-imposed, by the patient.

But over the past 60 years medical technology has become very advanced and very expensive. And even more to the point, we have evolved a payment system in which people who receive healthcare are spending not their own funds, but rather, are spending publicly-funded, pooled resources. (Those pooled resources are either funded directly through the government, or are subsidized by the public indirectly, through tax-deductable insurance premiums).

It is this collective funding arrangement that has made classic medical ethics obsolete. It is neither feasible nor ethical to leave all decisions on how to spend society’s pooled healthcare dollars to individual doctors and individual patients, who can “take” as much of this pooled resource as they think they’d like to have, with absolutely no constraints. Such an arrangement eventually and inevitably leads to fiscal ruin.

By the 1990s, because spending limits were absolutely necessary, but at the same time classic medical ethics precluded setting such limits, doctors were being coerced by the private insurers and government payers to establish those limits covertly, through bedside rationing. This was the problem faced by the Millennialists when they set out to reformulate medical ethics, and they were right to make the attempt.

But unfortunately, this is where the Millennialists dropped the ball and, as DrRich has shown, settled upon an answer that just made things worse.

The Right Medical Ethics

Medical ethics would be “right” if it could be made to comport with the classic notion that the doctor’s primary obligation is to his/her individual patients (thus preserving the classic doctor-patient relationship), and yet still respected society’s need to control the spending of its pooled resources. That is, the “right” ethics will recognize both society’s needs and the needs of individual patients, will recognize that those two sets of legitimate needs are often in conflict, and will provide an ethical framework for resolving these conflicts.

That ethical framework, DrRich is pleased to announce, is not that hard to conceptualize.

We can solve this problem if we think of the ethics of healthcare as being organized into two concentric spheres. The outer sphere holds the ethical precepts adopted by society to guide the behavior of the healthcare system for the benefit of the entire population; for example, to set overall limits on spending. These outer-sphere precepts help to ensure that the needs of society as a whole are served in an ethical manner by the healthcare system.

Contained within (and therefore subject to) that outer sphere of societal precepts is an inner sphere, which holds the ethical precepts that govern the behavior of individual doctors and patients within the healthcare system. Inner-sphere precepts help to ensure that the rights and needs of individual patients are addressed in an ethical manner.

So, while the physician’s primary ethical obligation must always be for the benefit of the individual patient, and therefore the physician must operate according to ethical precepts that honor this duty to individual patients (the inner-sphere precepts), their behavior must also conform with the ethical constraints imposed by society on the entire population (the outer-sphere precepts).

We can think of the inner-sphere precepts as an immutable core of ethical beliefs that serve the fundamental American commitment to the autonomy of the individual, and of the outer sphere as a coating, fashioned by society and therefore changeable, that places an adjustable (and ethically derived) limit on the individual’s ability to consume pooled resources.

The Inner Sphere – Ethical Precepts For Individuals

The inner sphere of ethical precepts – the core – fully preserves the two precepts of classic medical ethics: the precept of Patient Welfare, which requires the doctor to always act to the benefit of his/her individual patient; and the precept of Patient Autonomy, which requires the doctor to respect the individual patient’s right to medical self-determination. So the inner sphere precepts completely restore the physician’s sacred obligation to the interests of their individual patients. And thus, also restored are both the classic doctor-patient relationship, and medical professionalism.

But while individual welfare and individual autonomy are critical (and comprise the chief ethical obligations of the physician), there are still legitimate limits to what the patient (and doctor) can reasonably expect to receive from pooled resources. When a patient demands that everything possible be done for them, they are exceeding the bounds of autonomy if doing “everything” means that other individuals would thereby be deprived of what otherwise would be rightfully their fair share of those pooled resources. These necessary bounds on individual autonomy are defined by the outer sphere.

The Outer Sphere – Ethical Precepts For Society.

Under any equitable healthcare system we are going to have to carefully define our outer sphere ethical norms, because those are the standards that bound and govern the inner-sphere behaviors of individual doctors and patients. This “outer sphere ethics” is also comprised of two ethical precepts, Societal Beneficence and Distributive Justice.

Societal Beneficence (or social welfare) requires the healthcare system to attempt to maximize the overall public good realized from whatever pooled resources society expends on healthcare. Social welfare is not the same as patient welfare, because what is optimal for an individual patient may often reduce the overall benefit to society, and vice versa.

Distributive Justice requires the benefits of the healthcare system to be distributed fairly, that is, in a way that does not discriminate against individuals or groups based on who they are.

The outer-sphere precepts honor society’s right to accrue optimal benefits from whatever collective resources society provides toward healthcare. That is, the outer-sphere precepts recognize society’s legitimate interest in limiting and equitably distributing those collective resources – and indeed, recognizes its ethical obligation to do so.

Medical Ethics And the Spheres

With this framework it is easy to see why the American healthcare system is presently inequitable and unethical. A hallmark of our present system is the lack (thanks to our culture of no limits) of any attempt to define effective outer-sphere societal norms, which would bound the appropriate behavior of individual physicians and patients. This deficiency makes it entirely feasible, and very common, for some patients to soak up a disproportionate share of publicly funded healthcare resources, while others (though they are also paying into the system) are left with next to nothing.

Achieving equity should have nothing whatever to do with adjusting the inner-sphere precepts. Individuals in the United States (to paraphrase the Declaration of Independence) have a self-evident right to their individual autonomy. The inner-sphere precepts are granted to us by our founding documents, and as Americans we should avoid modifying the inner-sphere precepts at all costs, since, once we do, we are abandoning our foundational principles. (This means that the Millennialists have done more damage, with their New Ethics, than merely harming doctors and patients. They have begun – or continued – undermining the principle of individual autonomy upon which the United States was founded. ) (Sorry to have to mention it.)

It is the outer-sphere precepts – those that can be negotiated legitimately by society, and which can legitimately limit the scope of inner-sphere behaviors – that we need to get into proper order.

A properly functioning system of medical ethics, therefore, would require society to devise workable outer-sphere precepts, and through these ethical precepts, establish transparent rules for setting necessary limits on collective healthcare spending. Then, within that system of rules, doctors and patients would work together, under a fully restored doctor-patient relationship, to assure that every patient has access to all legitimately available medical options. And the doctor would be allowed (and expected) to leave no stone unturned in obtaining those legitimate medical services for his/her patient.

This arrangement is analogous to the attorney-client relationship, where the attorney, acting within the bounds imposed by the law (outer sphere norms), is expected to do everything within his/her power to see that the client gains every conceivable, allowable advantage (inner sphere behavior) as they navigate the complex legal system.

To further illustrate this point, we Americans are now engaged in a debate over whether the Christmas Underwear Bomber ought to be eligible to receive all the legal protections afforded to an American citizen under the law. It is notable that ALL the discussion in this case is in regard to whether American outer-sphere legal norms should apply to the terrorist. Nobody is suggesting that his attorney ought to abrogate his (or her, as the case may be) sacred “inner-sphere” obligations to this client, in order to achieve some sort of “fair distribution” of society’s legitimate interests. Nobody expects the terrorist’s attorney to refrain from advising him remain silent, for instance, even though that silence may expose us all to substantial additional harm. The lawyer’s inner-sphere obligations are secure, even here. Rather, the argument we’re having is strictly limited to how we should apply outer-sphere legal protections to this case.

It is the right argument to have. And it’s the very argument we should be having in regard to medical ethics.

And as much as DrRich does not like lawyers, he very much admires the tenacity with which they have preserved their fiduciary relationship with their clients – even in cases like this one. If physicians (and their organizations) had behaved with the professional integrity displayed by the despised attorneys, doctors and their patients would be in much less difficulty today.

A Plea

It is instructive to re-consider the New Ethics, which now has been formally implemented by the Millennialists, in light of DrRich’s proposed two-sphere system of ethics (which he audaciously labels “right ethics,” but to show his humility he will not use caps). The New Ethics can be seen to have resulted by the simple expedient of moving the outer-sphere principles of Societal Beneficence and Distributive Justice (lumped together as Social Justice) down into the inner sphere, where individual doctors are expected to deal with them.

You can’t actually do that, of course, because these are intrinsically outer-sphere norms. But nonetheless, New Ethics formally puts doctors into the position of having to serve the best interest of their patients (individual beneficence and autonomy) while at the same time, covertly rationing their patients’ healthcare (societal beneficence and distributive justice). It is quite impossible for individual physicians to reconcile these competing interests in any equitable sense, and charging them with the job of doing so is illogical, nonsensical – and (DrRich respectfully submits) unethical.

Doctors and patients would be much better served if physicians’ professional organizations, such as the ACP, would revisit their new-age Physician’s Charter on ethics. DrRich understands that our modern society is exceedingly reluctant to establish outer-sphere rules for limiting pooled healthcare resources, and for distributing them equitably. But that reluctance is not a sufficient justification for physicians themselves, through their professional organizations, to initiate and implement new ethical standards that sacrifice their sacred obligation to their patients.

My goodness, can we not muster up at least the ethical sensibilities of lawyers?

Yesterday, DrRich noted (with his usual affecting humility, modesty, self-deprecation, &c.) that the Covert Rationing Blog has been named a Finalist in the 2009 Medical Weblog Award Competition, in the category of Best Health Policy/Ethics Blog. He now calls to his readers’ attention the fact that, among the other two finalists – both of which are of very high quality and undoubtedly are more deserving of this award than DrRich – is none other than the ACP Advocate Blog.

The ACP Advocate Blog, written by Bob Doherty, is a publication of the American College of Physicians, and its purpose is to explain, elaborate on and advocate for the ACP’s positions on important matters related to health policy and medical ethics that affect its members, namely, internal medicine specialists. Doherty – who DrRich does not know, but of whom he has heard many very complimentary things – is an insightful analyst of matters related to healthcare policy, and to boot he is an excellent writer. DrRich is a loyal reader of the ACP Advocate Blog, which in fact has habitually led off DrRich’s blogroll.

Here’s why this is interesting. While both the ACP Advocate Blog and DrRich’s blog are finalists in the medical ethics category, it so happens that DrRich and the ACP are far apart on that very issue. DrRich (himself formerly a proud member of the ACP for over 30 years) has been a vocal critic of the ACP’s stand on medical ethics, ever since it joined a group of professional organizations a few years ago to formulate “Medical Ethics for a New Millenium.” DrRich believes that this “new medical ethics” is harmful to patients and to the medical profession alike, and has not been bashful about saying so.

So here we are – DrRich and the ACP Advocate Blog – both selected, as fate would have it, as co-finalists in the venerable Medical Weblog Award Competition in the category of medical ethics, when, regarding this very topic, the former has been quite vocal and persistent about criticizing the latter. Meanwhile, DrRich’s effusions on the subject have been completely ignored by the ACP in general, and by Doherty in particular. Now let’s be clear – DrRich does not blame them in the least for failing to respond to his criticisms, since they are very likely completely unaware of his existence (being, as he is, merely one tiny voice in a great sea of blogospheric pontificators). Also, truth be told, even if they were aware of DrRich’s criticisms, prestigious organizations such as the ACP do not owe a debt of response or recognition to every lone crackpot who criticizes them or their policies. If they had such an obligation, then how would they ever get any work done?

But still and all, here we are, fellow finalists.

So what, prithee, is the correct etiquette here? Quite likely, the correct thing for DrRich to do would be to avoid disharmony, to ignore the tension built-in to this unasked-for situation, to pretend there is no major point of contention over medical ethics between himself and one of the other medical ethics finalists, to spend the next couple of weeks writing about some other of his favorite subjects – how fat people prevent global warming, say, or on the most politically correct way to move old farts expeditiously into the next life – and, for propriety’s sake, to simply leave contentious medical ethics alone for another time.

But really, where’s the fun in that?

Plus, medical ethics is important. In fact, DrRich believes that the very point of contention, between the ACP’s conception of medical ethics and his own, is of such critical importance as to define the ultimate viability of the medical profession itself, and more importantly, the actual, physical (life-and death) viability of patients. And this being the case, it would be a shame – and possibly unethical – to let the subject just lie there, at the very time when taking it up might at last engender some of the give-and-take the subject sorely needs, and failing that, at least might gain a broader audience than it has had to date. (For DrRich has discussed this all before, but to little avail.) Such a broader awareness could be useful, since doctors and patients who fully understand the danger in which this new system of ethics has placed them can take the steps necessary to protect themselves (and each other).

And so, at the risk of being impolitic, impolite, boorish, boring, incorrect or incorrigible, and quite likely at the risk of rendering himself completely unworthy of his status as a finalist in the Medical Weblog Award Competition, and possibly even at the risk of forfeiting his status as same (though he has not been apprised of any particular rules he may be about to violate), DrRich hereby lays down the following proposition, and cordially invites the ACP Advocate Blog (or any other interested or offended party) to reply:

A Proposition

The New Medical Ethics, as espoused by the ABIM Foundation, ACP-ASIM Foundation, and the European Federation of Internal Medicine (hereafter referred to collectively as the Millennialists), and as laid out in a tract entitled, “Medical Professionalism in the New Millennium: A Physician Charter,” (Annals of Internal Medicine, February 5, 2002, vol. 136, pages 243-246), is deficient in the following ways:

• it undermines the foundation of the doctor-patient relationship,
• it threatens to fundamentally destroy medicine as a legitimate profession, and
• it places patients at grave personal risk whenever they encounter the healthcare system.

Just so.

What’s Wrong With the New Ethics?

To see how the “New Ethics” declared by the Millennialists is harmful, it is useful to first review old-fashioned, or “classic” medical ethics.

Classically, doctors have been obligated to recognize two ethical precepts: Patient Welfare and Patient Autonomy.

The precept of Patient Welfare (also called the precept of beneficence, or “first, do no harm”), obligates the doctor to always behave in a way that accrues to the benefit of the individual patient. The needs of the individual patient come first, and must be the doctor’s primary concern, above, for instance, personal and financial considerations.

Under the precept of Patient Autonomy, patients are acknowledged to have the right to self-determination regarding their own healthcare. Fundamentally, this means that patients have the right to know, and the doctor is obligated to inform them, of any and all information that might help them make their decisions regarding their own healthcare.

So classically, doctors were obligated to do whatever they must to assure that their individual patients were fully informed about all their medical options, and to act to assure that their individual patients got the care they needed (as long as, fully informed, they agreed to it).

By the late 1990s, however, the Millennialists – quite correctly as it turns out – detected a severe problem with this classic medical ethics. Namely, modern physicians were, to a very large extent, unable to comport with it. Quite simply, this is because under a system of covert healthcare rationing (such as was in full bloom even by that time), doctors cannot follow these two precepts. It is not possible for doctors to ration healthcare covertly, at the bedside, and at the same time fully honor their patient’s welfare and autonomy.

The problem was explicitly recognized as early as 1998, in an article by Hall and Berenson in the Annals of Internal Medicine (volume 128, p 395) which stated: “It is untenable for the medical profession to continue asserting an idealistic ethic that is contradicted so openly in clinical practice. . .We propose that devotion to the best medical interests of each individual patient be replaced with an ethic of devotion to the best medical interests of the group. . .”

This influential article, among other things, led to the formation of a commission to study the issue (the issue being, apparently, that if it becomes difficult to follow ethical precepts, then one ought to go ahead and change them). And this commission led to the Millennialists and their New Ethics.

The innovation of the Millennialists was to proclaim a third ethical precept: the precept of Social Justice. The precept of Social Justice charges physicians with effecting “the fair distribution of healthcare resources.” That is, it directs doctors to decide which patients ought to get those limited resources, and which ought not to get them. It specifically and directly justifies bedside rationing by doctors.

The reason this third ethical precept was deemed necessary is explicitly because doctors cannot any longer adhere to the other two. (”It is untenable. . .to continue asserting an idealistic ethic,” according to Hall and Berenson. “Indeed, the medical profession must contend with complicated political, legal, and market forces,” [emphasis DrRich’s] according to the Millennialists.)

Ostensibly, the precept of Social Justice gives doctors who are too introspective (admittedly, not a big problem with many of us) an out when they find themselves having to place the interests of payers ahead of the interests of their patients by, say, failing to mention certain medical options that might be available. “Sure, I’m violating Precepts One and Two,” they can now tell themselves, “but I’ve got to do that to honor Precept Three.”

The bottom line is that, having been coerced by the the insurers and the government (who utterly control the doctors’ professional viability) to place the payers’ needs ahead of the needs of patients, doctors found themselves in utter violation of their fundamental ethical precepts. The proper response of physicians (and their professional organizations such as the ACP) would have been to reassert those ethical obligations, to push back against the payers, and enlist the cooperation of their patients (who, after all, have a particularly vital interest in the matter) in doing so. Instead, they have taken a path of lesser resistance, re-defining medical ethics to comport with their new, coerced behavior.

What Does This “New Ethics” Do To the Doctor-Patient Relationship?

The addition of the precept of Social Justice to the ethical obligations of the physician renders the doctor-patient relationship inoperative.

The doctor-patient relationship is critical to the professional survival of the doctor, but it is critical to the actual survival of the patient. Consider that patients – especially when they are sick – are no more capable of navigating a complex healthcare system (whose chief concern, increasingly, is minimizing spending at any price) than are, say, accused felons a complex legal system. And patients are no less in peril than the felon if they run afoul of that system.

Society explicitly recognizes the right of the accused felon to an advocate, a professional whose job it is to protect his individual interests against the conflicting aims of the “system,” and who is expected to leave no stone unturned in guaranteeing his rights and prerogatives under the law. A patient’s need of a similar advocate is no less acute than that of the felon. (When you are sick, you should be entitled to at least the same protections as when you rob a gas station.) And the doctor-patient relationship is supposed to see that you have such an advocate.

Over the ages the doctor-patient relationship has been defined, through rules of ethics and rules of law, as a fiduciary one. When a patient seeks a physician’s help and the physician agrees to give that help, a special covenant is made. The patient agrees to take the physician into her confidence, to reveal to him even the most secret and intimate information related to her health. The physician, in turn, agrees to honor that trust, and to become the patient’s advocate in all matters related to her health, placing her interests above all others – including the doctor’s own personal or financial concerns.

The New Ethics breaks that covenant from the outset. It renders “ethical” the divided loyalty of the physician. Today, when patients go to a doctor for medical advice, they do not know – and cannot know – whether that advice is being given to advance primarily the patient’s own well-being, or the well-being of the society that desires a “fair distribution of healthcare resources.” With the formal adoption of this New Ethics, patients have been essentially cut loose, and set adrift to fend for themselves in an increasingly hostile healthcare system, without being able to rely on the kind of personal advocate they’ve been conditioned to expect, the kind of advocate an accused murderer is awarded without question or hesitation.

Less obvious, but no less profound, are the consequences of this New Ethics to the profession of medicine. Abandoning their primary obligation to the individual patient means that physicians have committed the “original sin.” They have abdicated their traditional, ethical, and legal roles as patient advocates; they have broken a sacred pact. They have fully compromised themselves as professionals; indeed they have become professionals in name only, and not in fact. And as a result, to their utter frustration, they find themselves standing naked before their enemies, the very insurers and regulators who forced them to abdicate their sacred obligation in the first place.

DrRich finds it exceedingly sad that the ACP and other professional organizations, in an honest effort to protect their membership, and thus to devise a form of medical ethics which comports to the realities of the day, have ended up wrecking the doctor-patient relationship, and in the process have done great material harm to patients, and fatal professional harm to the very physicians whose ethical sensibilities they sought to protect.

DrRich does not imply evil intent to anyone here – not even to the insurance companies and the regulators (whose actions to coerce covert rationing are, really, just an effort to fulfill the job our society has assigned to them). Indeed, DrRich assumes all parties involved are sincerely trying to do the right thing. And so DrRich (ever your cheerful optimist!) sees a way out of the ethical dilemma.

That way out requires a new way of thinking about medical ethics – the “right” way, if he may be so bold – and in his next post DrRich will describe it.

In the meantime, DrRich is a bit distressed over his violation of the traditional civility of the blogosphere, for his possibly having abused the honor bestowed on him in his selection as a finalist in the Medical Weblog Competition, and indeed, for exposing himself to the accusation of initiating a Medical Ethics Smack Down. So if some of his readers choose to punish him for this untoward behavior by voting for the ACP instead of the Covert Rationing Blog, DrRich will understand.