Tuesday, September 21, 2021
A recent opinion piece in USA Today was comparing the provisions of the New Mexico Aid-in-Dying law to those in other states, Terminal patients deserve death with dignity. New Mexico aid-in-dying law sets standard.
According to the author, there are 3 sections of the statute that are improvements over statutes in other states:
- Offsetting the growing physician shortage statewide. The law mirrors the practice of medicine found in other fields and allows advanced practice registered nurses and physician assistants to use their training to serve as either the prescribing or consulting clinician.
- Requiring only one written request and one 48-hour waiting period between receiving and filling the prescription for aid-in-dying medication. The prescribing provider has the ability to waive the 48-hour waiting period if the terminally ill person is likely to die during that waiting period.
Clarifying that if a health care provider objects to participating in medical aid in dying, they must inform the terminally ill person and refer them to either a willing provider or a party who can help the terminally ill patient find assistance.
Furthermore, providers that oppose medical aid in dying must accurately and clearly disclose that on websites and in any appropriate materials given to patients.
The law also takes a different approach to the waiting period used in other states, and according to the author, Oregon shortened its waiting period a couple of years ago "to allow doctors to waive the 15-day waiting period" and recently, "California passed legislation to improve access ... by reducing the mandatory 15-day waiting period between the two requests for aid-in-dying medication to 48 hours."
Tuesday, September 14, 2021
- A perfect kickoff with opening remarks on the theme of the conference from Syracuse Law Professor Nina Kohn, who outlined the civil rights of older persons, reminding us of existing laws and the potential for legal reforms;
- A unique "property law" perspective on the importance of careful planning about ownership or rights of use, in order to maximize the safety and goals of the older person, provided by Professor Lior Strahilevitz from University of Chicago Law School;
- Several sessions formed the heart of the conference by taking on enormously difficult topics arising in the context of Covid-19 about access to health care, including what I found to be a fascinating perspective from Professor Barbara Pfeffer Billauer from her recent work in Israel. She started with an interesting introduction of three specific pandemic responses she's identified in her research. She then focused on how "Policy Pariah-itizing" has had a negative effect on health care for older adults, with examples from Israel, Italy, and China. I was also deeply impressed by the candid presentations of several direct care providers, including nursing care professionals Esperanza Sanchez and Nelda Godfrey, about the ethical issues and practical pressures they are experiencing;
- Illinois Law Professor Dick Kaplan offered timely perspectives on incorporating cultural sensitivity in Elder Law Courses. His slides had great context, drawing in part from an article he published about ten years ago at 40 Stetson Law Review 15;
- Real world examples about tough end-of-life decisions involving family members and/or formally appointed surrogates, with Deirdre Lock and Tristan Sullivan-Wilson from the Weinberg Center for Elder Justice leading breakout groups for discussions.
I know I'm failing to mention other great sessions (there were simultaneous tracks and I was playing a bit of leap-frog). But the good news is we can keep our eyes out for the Touro Law Review compilation of the articles from this conference, scheduled for Spring 2022 publication. I know it was a big lift to pull off the conference in the middle of the fall semester. Thank you!
September 14, 2021 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, International, Property Management, Science | Permalink
Monday, August 16, 2021
Elder Law attorney and friend Morris Klein sent me the link to this article, Some NHs Use POLST Inappropriately; Practice, Policy, Research Considerations Can Help. In discussing the importance of advance care planning, the authors note "[o]ne [step] involves the POLST (Physician Orders for Life Sustaining Treatment) paradigm. POLST is intended for persons who are at risk of a life-threatening clinical event due to a serious life-limited medical condition. However, according to the authors of an article in the August issue of JAMDA, some nursing homes (NHs) are using it in potentially inappropriate ways with patients who are ineligible because they are not at such risk. They also make recommendations for NHs to implement the appropriate use of POLST." The article, POLST Is More Than a Code Status Order Form: Suggestions for Appropriate POLST Use in Long-Term Care, can be found here. The abstract explains
POLST (Physician Orders for Life-Sustaining Treatment) is a medical order form used to document preferences about cardiopulmonary resuscitation (CPR), medical interventions such as hospitalization, care in the intensive care unit, and/or ventilation, as well as artificial nutrition. Programs based on the POLST paradigm are used in virtually every state under names that include POST (Physician Orders for Scope of Treatment), MOLST (Medical Orders for Life-Sustaining Treatment), and MOST (Medical Orders for Scope of Treatment), and these forms are used in the care of hundreds of thousands of geriatric patients every year. Although POLST is intended for persons who are at risk of a life-threatening clinical event due to a serious life-limiting medical condition, some nursing homes and residential care settings use POLST to document CPR preferences for all residents, resulting in potentially inappropriate use with patients who are ineligible because they are too healthy. This article focuses on reasons that POLST is used as a default code status order form, the risks associated with this practice, and recommendations for nursing homes to implement appropriate use of POLST.
The article in pdf is available here.
Wednesday, June 30, 2021
Under New Mexico’s new law, a doctor can issue a prescription for life-ending medication only after determining the patient seeking it has the mental capacity to make such a decision.
In addition, patients have to be able to self-administer the medicine and only those deemed likely to die within six months will be able to obtain it. There will also be a 48-hour waiting period to get the prescription filled, with narrow exceptions.
An earlier article highlighted some of the features of the new law.
The legislation will not force physicians, pharmacists or other health care professionals to provide life-ending drugs.
As the law is written, a terminally ill patient’s doctor can prescribe the drugs only after obtaining a second medical opinion and ensuring the patient is mentally and emotionally fit to make a choice about ending their life.
* * *
[The head] of Compassionate Choices Action Network, said New Mexico’s bill is different from others because it allows nurse practitioners and physician assistants, as well as physicians, to prescribe the life-ending drugs.
While most states’ aid-in-dying laws include a 15-day waiting period between the time the patient receives approval for the drugs and when they can obtain the them, New Mexico’s waiting period is 48 hours.
Tuesday, June 15, 2021
Bloomberg recently published an opinion regarding the Uniform Definition of Brain Death, A Scary Plan to Revise the Definition of Death. "People may be less willing to agree to be organ donors if they believe the quest for organs changes how patients are treated."
According to the article, the Uniform Law Commission has a study committee, looking at "the need for and feasibility of updating the Uniform Determination of Death Act (1980), which has been enacted in 44 states. Issues to be considered include lack of uniformity in the medical standards used to determine death by neurologic criteria, the relevance of hormonal functions, and whether notice should be provided before a determination of death."
The Bloomberg article mentions an opinion piece published last year in the Annals of Internal Medicine which the Bloomberg article suggests is concerning. The Bloomberg article examines the elements of the proposal and reviews the advantages of it, but also notes opposition to it. "Despite all the arguments in favor of the revisions, more than 100 experts in medicine, law, philosophy and bioethics have signed a statement of opposition...."
The article discusses the objections and how the proposal might reduce the amount of organ donations. The article is very interesting and if you could End of Life planning in your classes, this article gives you some thoughtful background.
Thursday, April 15, 2021
Kaiser Health News ran an interesting story about aid in dying in Montana. Getting a Prescription to Die Remains Tricky Even as Aid-in-Dying Bills Gain Momentum
[I]n 2009, the Montana Supreme Court had, in theory, cracked open the door to sanctioned medically assisted death. The court ruled physicians could use a dying patient’s consent as a defense if charged with homicide for prescribing life-ending medication.
However, the ruling sidestepped whether terminally ill patients have a constitutional right to that aid. Whether that case made aid in dying legal in Montana has been debated ever since. “There is just no right to medical aid in dying in Montana, at least no right a patient can rely on, like in the other states,” said former state Supreme Court Justice Jim Nelson. “Every time a physician does it, the physician rolls the dice.”
The article discusses the legislative efforts on both sides of the issue. Fascinating story!
Wednesday, April 7, 2021
Published recently in the Washington Post, Diane Rehm tackles ‘death with dignity’ again, this time in a new documentary. "In 2016, Diane retired from NPR station WAMU after working there for more than 30 years. Since then, she has championed what she and other advocates call “death with dignity.” On Wednesday, PBS will broadcast her new documentary, 'When My Time Comes.'" The article is a Q&A with the author about her book and the resulting documentary. Check it out!
Tuesday, April 6, 2021
POLST and other advance medical planning should not be a one-time conversation according to a recent study.
Two new studies from Indiana University and Regenstrief Institute focus on POLST, a medical order form widely used in nursing homes that documents what life-sustaining treatments a person prefers to receive or not receive, such as hospitalization or comfort-focused care. The studies, published online ahead of print in the Journal of the American Geriatrics Society (JAGS), found discrepancies between medical orders recorded in the POLST form and nursing home residents’ (or surrogate decision-makers, for those unable to make their own decisions) current treatment preferences and explore reasons for the lack of agreement.
The researchers found that less than half of all POLST forms of the 275 study participants matched current treatment preferences for resuscitation, medical interventions, and artificial nutrition. However, the POLST was more than five times as likely to agree with current treatment preferences when these orders reflected preferences for comfort-focused care. In interviews, participants reported the mismatch was due to factors including a lack of key information when they filled out the form and not revisiting POLST when the resident experienced a change in condition.
Thanks to my friend Morris Klein for sending me the link to this story.
Monday, March 1, 2021
The End of Life Options Act has been reintroduced in Massachusetts. This article notes an overwhelming support by U.S. adults for aid-in-dying. The article also includes a short podcast of the story. If this bill passes, Massachusetts will join a handful of other states where aid-in-dying is legal Stay tuned.
Wednesday, February 17, 2021
The Vatican is calling for a new paradigm of care for older people after what it calls the "massacre" wrought by the coronavirus pandemic, which has disproportionately killed people living in nursing homes.
The Vatican's Pontifical Council of Life issued a position paper Tuesday that made the case for a global rethink of how to care for people in their final years, including resisting any rush to institutional care in favor of adapting home environments to the needs of people as they age.
Monday, February 8, 2021
A couple of weeks ago the New York Times ran this article, Filing Suit for ‘Wrongful Life’, which asks this question: "More Americans are writing end-of-life instructions as the pandemic renders such decisions less abstract. But are medical providers listening?" The article features one case in litigation where the surviving spouse claimed that the health care providers failed to honor the patient's directive claiming the health care providers "disregarded a New York State MOLST — medical orders for life-sustaining treatment — form and his spouse’s explicit instructions to a doctor who called to seek her guidance." The article gives a good explanation of the issues and a review of prior cases on similar topics. This is an important issue and I'm going to have my students read the article.
Tuesday, December 22, 2020
It's going to be some time before we see good news stories about residents of SNFs---although the vaccination of SNF residents is good news. So here are several recent articles regarding SNFS and COVID-but be forewarned, these first two are not easy to read.
There are just no words....
(Thanks to Morris Klein and Professor Bauer for sending me the link to this article).
This last article brings up some interesting issues for class discussion-such as consent, refusal of consent, and inability to consent.
Please everyone-stay safe and remember to thank our first responders, health care professionals and essential workers. And let us never forget those we have lost to this pandemic.
December 22, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (1)
Sunday, December 20, 2020
GeriPal, a geriatrics and palliative care blog, has released a podcast, Guardianship and End-of-Life Decision Making: A Podcast with Andy Cohen and Liz Dzeng, discussing a recent study led by Dr. Cohen.
The big surprise finding of this study was veterans who were nursing home residents aged 65 and older with moderate to severe dementia and who had a professional guardian were no more likely to receive high‐intensity treatments than the same population who died with decision makers who were not professional guardians. We talk to Andy about his study, potential reasons behind the study, and what, if anything, we should do differently knowing these results. We also talk to Liz about whether substituted judgement is really all that it’s cracked up to be.
The article, Guardianship and End‐of‐Life Care for Veterans with Dementia in Nursing Homes and editorial, We Need a Paradigm Shift Around End‐of‐Life Decision Making, are available here and here.
December 20, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care | Permalink | Comments (0)
Friday, December 18, 2020
According to a story yesterday in the AP news, Spain’s parliament vote[d] to legalize euthanasia. The bill provides for medical aid-in-dying or euthanasia "for long-suffering patients of incurable diseases or unbearable permanent conditions." The bill next goes to their Senate. The article notes that "[e]uthanasia — when a doctor directly administers fatal drugs to a patient — is legal in Belgium, Canada, Colombia, Luxembourg, the Netherlands and Switzerland. In some U.S. states, medically-assisted suicide — where patients administer the lethal drug themselves, under medical supervision — is permitted." The bill requires multiple requests by the patient, the first 2 of which must be written and made with two weeks between the requests. Medical professionals must be involved and requests are reviewed and granted by a regional oversight board. Only adult Spanish residents or citizens who can make rational decisions would be able to make such requests.
Wednesday, July 22, 2020
Some SNFs and ALFs are now allowing visits for residents, with proper precautions, rather than an absolute ban on visits. Kaiser Health News ran an update, States Allow In-Person Nursing Home Visits As Families Charge Residents Die ‘Of Broken Hearts’.
For the most part, visitors are required to stay outside and meet relatives in gardens or on patios where they stay at least 6 feet apart, supervised by a staff member. Appointments are scheduled in advance and masks are mandated. Only one or two visitors are permitted at a time.
Before these get-togethers, visitors get temperature checks and answer screening questions to assess their health. Hugs or other physical contact are not allowed. If residents or staff at a facility develop new cases of COVID-19, visitation is not permitted.
Slightly over half of the states have have allowed these SNF visits, after he release of revised guidance from CMS, while slightly less than half of the states have allowed ALFs to follow the same path. This change is something of a balancing act, and the article notes this can change if COVID cases show up. Although the prohibition on visits was intended as protection,
[A]nguished families say loved ones [suffered]too much, mentally and physically, after nearly four months in isolation. Since nursing homes and assisted living centers closed to visitors in mid-March, under guidance from federal health authorities, older adults have been mostly confined to their rooms, with minimal human interaction.
A separate, but related issue, the right of visitation at the end of life, has not been evenly applied.
Although federal guidance says visitors should be permitted inside long-term care facilities at the end of life, this is not happening as often as it should, said Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care, an advocacy group.
She wants family visitation policies to be mandatory, not optional. As it stands, facility administrators retain considerable discretion over when and whether to offer visits because states are issuing recommendations only.
Smetanka’s organization has also begun a campaign, Visitation Saves Lives, calling for one “essential support person” to be named for every nursing home or assisted living resident, not just those who are dying. This person should have the right to go into the facility as long as he or she wears personal protective equipment, follows infection control protocols and interacts only with his or her loved one.
The article also includes a map of states allowing visitation.
July 22, 2020 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink
Thursday, July 16, 2020
The New York Times has an article that might be particularly useful for faculty members teaching Wills, Trusts & Estates or Elder Law courses in the Fall.
From the article, titled "Boom Time for Death Planning:"
The coronavirus pandemic has drawn new buiness to startups that provide end-of-life services, from estate planning to a final tweet. . . .
Before the pandemic, end-of-life start-ups — companies that help clients plan funerals, dispose of remains and process grief — had experienced steady to moderate growth. Their founders were mostly women who hoped a mix of technology, customization and fresh thinking could take on the fusty and predominantly male funeral and estate-planning industries.
Still, selling death to people in their 20s and 30s wasn’t easy. Cake’s team sometimes received emails from young adults, wondering if the site wasn’t a tad morbid. Since Covid-19, this has changed. Millennials are newly anxious about their mortality, increasingly comfortable talking about it and more likely to be grieving or know someone who is.
Thursday, July 2, 2020
Hard to believe we are scheduling for January 2021, isn't it! Here's the scheduled speakers and topics for the co-hosted program during the AALS Annual Meeting in San Francisco on "Intersectionality, Aging and the Law:"
Alex Boni-Saenz (Chicago-Kent), Age Diversity
Naomi Cahn (GW) & Nina Kohn (Syracuse), How Law and Sex Shape What It Means to Be Old
Veronica C. Gonzales-Zamora (UNM), The Triple Threat: Millenium Women of Color
Jessica Mantel (Houston), Allocating Scarce Medical Resources During a Pandemic: Rationing Based on Age is not the Same as Rationing Based on Disability
Katherine Pearson (PSU-Dickinson), Pandemic Protections: Where is the Line in Patient Autonomy?
Tara Sklar (U Arizona), Frailty, Vulnerability, and Big Data
Ruqaiijah Yearby (SLU), The Dark (Trinity): How Structural Discrimination, Wealth Inequalities, and Lack of Access to Health Care Cause Health Disparities for Elderly Women of Color
July 2, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International, Programs/CLEs, Statistics | Permalink | Comments (0)
Wednesday, July 1, 2020
I've recently returned from a week in Arizona with family. I managed to arrive in Phoenix just in time for a surge in COVID-19 cases, traffic headaches connected to President Trump's campaign visits, a couple of new wildfires, and a few more degrees up the summer temperature gauge. Probably the most newsworthy part of the trip was the announcement by Arizona authorities that the state was activating a COVID-19 crisis plan that involves triage -- or "rationing" as some people interpreting the plan are calling it. One component of the Arizona plan involves "protocols for scarce resource allocation." An Arizona public statement describing the protocols attempts to reassure the public (emphasis provided with blue color):
If resources are sufficient, all patients who can potentially benefit from therapies will be offered therapies. If resources are insufficient, all patients will be individually assessed. No one will be categorically denied care based on stereotypes, assumptions about any person’s quality of life, or judgement about a person’s “worth” based on the presence or absence of disabilities.
All patients, regardless of resource availability, will be treated with respect, care, and compassion. Triage decisions will be made without regard to basis of race, ethnicity, color, national origin, religion, sex, disability, veteran status, age, genetic information, sexual orientation, gender identity, quality of life, or any other ethically irrelevant criteria.
When resources become inadequate -- implicit in the Governor's recent news conferences -- triage involves a color-coded system of triage "priority scores." According to the statement, "All patients will be eligible to receive critical care beds and services regardless of their triage score, but available critical care resources will be allocated according to priority score, such that the availability of these services will determine how many patients will receive critical care."
The guidelines indicate health care providers must make an active assessment of the "patient's goals of care and treatment preferences. It is imperative to know whether aggressive interventions such as hospitalization, ICU admission or mechnical ventilation are consistent with a patient's preferences.... All hospitalized patients should be asked about advance care planning documents, goals of care, and are strongly encouraged to appoint a proxy decision-maker (e.g., medical durable power of attorney... or health care agent) if not previously in place. Patients in nursing homes, skilled nursing facilities, other long-term care settings, and outpatient care settings should also be asked about their goals of care and advanced care planning documents.... If advance clare planning documents are in place and available the healthcare provider should verify the patient's goals of care and treatment preferences remain the same....."
Will the patient's age, especially an advanced age, be relevant to a Arizona's Covid-19 crisis plan? On the one hand, the guidelines indicate "age" is expressly "removed ... as a specific factor for Triage Priority scores or Triage Color Groups." On the other hand, when determining the Triage Priority Score, points assessed must reflect an evaluation of whether the patient is "expected to live more than 5 years if patient survives the acute illness [zero points added]" or whether death is "expected wtihin 5 years despite successful treatment of acute illness [2 points added]." If "death [is] expected within 1 year regardless of successful treatment of the acute illness," 4 points are added. The patient's prioritization for critical care resources is best with a low score (1 to 3 total points), while priority is reduced to "intermediate" (4 to 5 points) or "lowest," if they are assessed with more than 6 total points. Further, "age" is implicitly involved as the prioritization process somehow examines the specific patient's "opportunty to experience life stages (childhood, young adulthood, middle years, and older years)."
These are obviously tough calls in any health care assessment contect, but especially so in the middle of a pandemic. Public health professionals have experience with these kinds of assessements. I suspect that many families also have engaged in a type of informal assessment when serving as a loved one's health care spokesperson or agent.
My sister and I were thinking about last summer as I visited this summer. Last summer, the two of us talked about similar factors when making the call on whether our mother would have hip-surgery at age 93 following a fall-related fracture. The doctor said that without the surgery our mother was unlikely to walk again because of pain; with the surgery there was a significant chance she would be able to walk without pain. She ended up sailing through the surgery -- and began taking steps again the same day. Ironically, probably because of her increasing dementia, she had no fear of falling nor any memory of the surgey and thus was soon fully ambulatory (although she did sometimes substitute a walker for her occasional cane) and remained so for all but the last few days if the next six months of life. That took her into the summer of 2019 in Arizona.
If the cornonavirus pandemic had occurred in the summer of 2019, and if safe access to hospitals and surgery were the issues, my best guess is Mom would probably have had a "high" score on any health care triage assessment -- in other words, not good news. We are glad we never confronted decisions about respirators or ventilators. We do know that our very elderly mother had a much better quality of life with major surgery than she would have had without it. Just one case, of course. Again, tough calls (and yes, expensive calls for Medicare) with or without a pandemic to complicate the decision process.
Monday, June 8, 2020
Oklahoma Legal Aid Services Update: 3rd Annual Memorial Elder Abuse Symposium Goes Virtual, Starting June 15
This year, the Sonya L. Patterson Elder Abuse Symposium hosted annually by Legal Aid Services of Oklahoma, will take place over the course of several weeks, in bite-size programming, rather than in a single, all-day conference format. In light of the online setting, the organizers are also able to open up registration and attendance to interested people outside of Oklahoma; however, there are limits on the number who can attend each session, so I recommend registering early. In past years, the symposium has drawn an audience of attorneys, law enforcement and social workers, with CLE credits available.
I'm very pleased for the opportunity to be a speaker this year. In addition to attorneys and judges, the speakers include health care professionals and bankers. The program honors the life and advocacy of a young Oklahoma public interest attorney, Sonya L. Patterson, who passed away far too soon in 2015, as the result of an accident at the age of just 30.
Here's the line up for the midday Symposium Webinar Series , with all sessions taking place on Central Daylight Savings Time:
Session 1: Monday, June 15th (11:00 am to 1:45 pm)
- The Psychic Effect on Victims of Elder Abuse by Family and/or Caregivers- Dr. Nancy Needell, M.D., Weill Cornell Medicine
- Attorney Responsibility to Client’s Ward or Principal- Rick Goralewicz, Staff Attorney, Legal Aid Services of Oklahoma
Session 2: Monday, June 22nd (11:00 am to 1:15 pm)
- Financial Exploitation of the Elderly- Justice Scott Roland, Oklahoma Court of Criminal Appeals with Elaine Dodd, Executive Vice President/ Fraud Division at Oklahoma Banker's Association and Jennifer Shaw, Oklahoma Securities Commission
- Extreme Home Takeover: Dealing with the “Concerned Relative”- Katherine C. Pearson, Professor of Law at Dickinson Law, Pennsylvania State University, Carlisle Pennsylvania
Session 3: Wednesday, June 24th (11:00 am to 1:15 pm)
- Elder Abuse General Topic- Stacey Morey, Oklahoma Attorney General’s Office, Chief of Consumer Protection Division
- Experts: Identifying and Utilizing in Elder Abuse Litigation- Kara Vincent, Attorney, Barber and Bartz
Session 4: Monday, June 29th (11:00 am to 1:15 pm)
- Domestic Violence and Seniors- Melissa Brooks, Staff Attorney at Legal Aid Services of Oklahoma and Gail Stricklin, Attorney at Law
- Abuse in Institutional Settings- William Whited, State Long Term Care Ombudsman and Nicole Snapp-Holloway, Attorney at Maples, Nix and Diesselhorst
Session 5: Wednesday, July 1st (11:00 am to 1:15 pm)
- Incompetency, Incapacity and Vulnerability- Mark Holmes, Attorney at Holmes, Holmes and Niesent, PLLC, Travis Smith, Attorney at Holmes, Holmes and Niesent, PLLC and Cathy Wood, Adult Protective Services
- Isolation and Loneliness- Laurel Dinkel, LCSW, Norman, Oklahoma
Click HERE for access to registration information for individual sessions or the entire series. My thanks to Oklahoma Legal Aid Staff Attorney Rick Goralewicz for the invitation.
June 8, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Housing, State Cases, State Statutes/Regulations, Statistics, Webinars | Permalink | Comments (0)
Tuesday, May 26, 2020
George Washington Law Professor Naomi Cahn recently shared a piece by Israel-based law and policy author Barbara Pfeffer Billauer on "Al Tashlichaynu L'Et Zichna: Ageism in the Time of Corona." This thoughtful piece begins with a theme I've been discussing with others, how close to dystopian science-fiction the last 10 weeks have seemed. She makes the opening comparison of current policy-based decisions to the science-fiction movie Logan's Run, where the "acceptable" price paid for a civil society was a mandatory limit on life spans -- to just 30 years. Professor Pffeffer Billauer observes "In this world of COVID, the age of devitalization is a bit older. But us oldsters are subject to truncation just the same."
It’s time to expose the flawed basis on which morbidly dystopic and discriminatory responses toward the aged have been become public health policy– both as a warning that initial and instinctive public health responses must be constantly re-evaluated and updated – and as an alert that discriminatory responses can be couched as public health concerns, even as their main purpose is to further political goals.
At first glance, “protection of the vulnerable” seems laudatory and compassionate. Nevertheless, this approach should trigger concerns of discrimination. In the case of age-related discrimination, the dangers are, perhaps, exacerbated, as those affected are more likely to just accept it. Others accept these pronouncements without delving into the “scientific” or epidemiological underpinnings of the pronouncements. Even worse, is that rationale that might, in actuality, be political can be camouflaged as nobly “helping the needy.”
Professor Pfeffer Baillauer warns that even as governments begin to ease virus-related restrictions, in many instances "the 'vulnerable' (aka the elderly)" are still locked down, and that the "differential relaxation of lockdowns is problematic, both from legal and public health perspectives."
Based purely on early (and stagnant) reports, we bought into this protectivist age-related response: The elderly were — and are — to have their liberty disproportionately restricted –because they are considered “vulnerable”. It’s time to question this approach and unmask the rank discrimination behind it, or at the very least, reveal the dangers of blind acquiescence without serious inquiry into the scientific basis.
She questions the statistical basis for some governments' decisions to impose mandatory isolation:
The Italian debacle, notably lots of deaths, was attributed to their older population. But these pronouncements were based on gross, oversimplified statistical calculations. Germany, with a similar age distribution, suffered far fewer deaths. So did Japan, with a population even older than Italy’s . Compare the case-fatality in Italy of 14% (as of March 19) with that of Germany (at 4.5%), or the even older Japanese demographic with a similar case-fatality (4.7%). Basic tools of epidemiological assessment, such as standardized age-adjusted rates, appear not to have been performed to sustain the extrapolation of the Italian experience to other countries. Basic epidemiological constraints, such as the ecological fallacy, were never even considered.
But there is more to the misleading assertion that the elderly are at greater risk than just flawed statistics. The approach obscures the key question: greater risk of what? Of disease susceptibility, of spreading it to others – or of dying?
She is provocative. She notes that if there is legitimacy to mandating isolation of the elderly based on nursing home statistics on infection and death, perhaps the same rule should be assigned to the "financially flush," such as those who make up the majority of cruise ship passenger rosters, whether or not they are embarked on an actual cruise.
For more, read the full blog post linked above. For MUCH more, keep an eye on Barbara's SSRN account for her next piece. Thanks, Naomi, for another great share!
May 26, 2020 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, Housing, International, Statistics | Permalink | Comments (0)