Welcome to CHRONIC TONIC, a continuing series of Thursday Kos Diaries for individuals diagnosed with chronic illness and conditions, as well as for family members, caregivers and professionals whose work involves an intimate connection with the unique concerns and needs of this community.
CHRONIC TONIC is a place to share stories, advice, and information and to connect with others with similar experiences. Through their personal stories, our diarists will report on research, alternative treatments, clinical trials, and health insurance issues. You are invited to share yours, as well. In addition to our weekly diaries, please join us for ongoing conversations and information gathering at the Kossacks Networking site in the Brainzaps section.
May the New Year hold for all life, liberty and the pursuit of happiness.
Today’s Diary by Othniel.
Health Care permeates our American Lives. We face questions of access to quality care, denial of care, apportioning of limited resources, the role of the government and of the marketplace, the problem of health care fraud, the question of who may be refused treatment by whom, and of who may refuse treatment and for whom. Within our communities and families, those who daily confront a chronic health condition face over-burdening themselves and their caregivers (both within and without the health care system), concerns of preserving dignity and privacy, and of claiming a part of the life, liberty and pursuit of happiness ideal, for themselves. This most fundamental of American Dreams often dissipates into health care nightmares.
I address the issue of self-determination in health care from the perspectives of Individual Right and of Individual Responsibility.
As to the Right, U.S. Const., Amend. 9, provides:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Earlier in my legal career I had the honor to represent over two hundred young adults who had been trapped in private psychiatric facilities as teenagers essentially for as long as the insurance company would pay. We brought claims under state law (including Health Care Liability claims and fraud claims), under RICO, and under the basic American Civil Rights statute, 42 U.S.C. § 1983. I do not want to speak of specifics, but much of the litigation is public record and the early settlements were widely reported. Essentially, as was reported in the New York Times and elsewhere, we reached an eight figure settlement on our Ninth Amendment Claims regarding an individual right to self-determination in health care. (After I taught the medical malpractice bar where the federal courthouse was and what the Ninth Amendment says.)
Here is an example of how we argued the point in a Complaint (redacted of course for privacy):
- By the above recited acts of Count II DEFENDANTS, under color of law of the State of Texas, PLAINTIFF has been subjected to the deprivation of rights, privileges and immunities secured to her by the laws and the Constitution of the United States of America and the State of Texas; particularly, her right of security of person, freedom from unreasonable search and seizures, freedom from arrest except on probable cause supported by oath or affirmation, guaranteed by the Fourth Amendment to the Constitution of the United States of America, her right not to be deprived of liberty without due process of law, guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States of America, her right to Freedom of Speech and Association guaranteed under the First Amendment to the Constitution of the United States of America, and her rights to privacy, basic human dignity, and to self-determination in health care, guaranteed to her under the Ninth and Fourteenth Amendments to the Constitution of the United States of America.
Courts and Lawyers are of many minds about the Ninth Amendment. However if this important constitutional provision is to be given content, it must be used, argued, fought over and embraced, as we did in those cases (which are not precedent as they were settled), and as any consumer of health care services can do by referencing it in a letter to his or her health care provider, explaining the import of self-determination in health care matters.
This particular content is easily placed in a Ninth Amendment context, sometimes even by examining the change in one's pocket. Recall the Delaware state quarter, the first of the line? Caesar Rodney on horseback returning to Congress to cast a crucial vote within the Delaware delegation for Independence? Rising from the bed in his home to which he had returned to die of cancer in his own peace and dignity, and with self-determination, Caesar Rodney returned to Philadelphia to help birth our Republic. Claim the right when you do in his honor, and give content to this amendment even before it was written.
What use are rights retained by the people if the people never claim them?
As to Responsibility, Has Your Health Care Power of Attorney Had its Yearly check-up?
There are many approaches to the question of responsibility; I address commonly overlooked legal documents which can help you make health care easier for you and your caregivers.
The names and purposes of the various documents vary from state to state; many have statutory on-line forms (Texas generally does), though I would strongly urge anyone completing a document with legal effect to consult an attorney before doing so. Some of the Texas forms I urge clients to complete (especially clients who have chronic health condition and/ or are GLBT):
A. Health Care Power of Attorney, Texas Civil Practices & Remedies Code, Sect. 166.033;
B. Advanced Directive to Physicians, Texas Civil Practices & Remedies Code, Sect. 166.033;
C. Declaration for Mental Health Treatment, Texas Civil Practices & Remedies Code, Sect. 137.011;
D. Appointment of Agent to Control Disposition of Remains, Texas Health and Safety Code, Sect. 711.002.
By the appointment of agents to handle health care concerns, and by placing limits on the power of those agents, one can assure continuity of care.
For example, the statutory form for the Texas Declaration fro Mental Health Treatment reads, in part:
I, ________________, being an adult of sound mind, wilfully and voluntarily make this declaration for mental health treatment to be followed if it is determined by a court that my ability to understand the nature and consequences of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment, is impaired to such an extent that I lack the capacity to make mental health treatment decisions. "Mental health treatment" means electroconvulsive or other convulsive treatment, treatment of mental illness with psychoactive medication, and preferences regarding emergency mental health treatment. (OPTIONAL PARAGRAPH) I understand that I may become incapable of giving or withholding informed consent for mental health treatment due to the symptoms of a diagnosed mental disorder. These symptoms may include: ______________________________________________________________ PSYCHOACTIVE MEDICATIONS
If I become incapable of giving or withholding informed consent for mental health treatment, my wishes regarding psychoactive medications are as follows: ___ I consent to the administration of the following medications: ______________________________________________________________ ___ I do not consent to the administration of the following medications: ______________________________________________________________ ___ I consent to the administration of a federal Food and Drug Administration approved medication that was only approved and in existence after my declaration and that is considered in the same class of psychoactive medications as stated below: ______________________________________________________________ Conditions or limitations: ______________________________ CONVULSIVE TREATMENT
If I become incapable of giving or withholding informed consent for mental health treatment, my wishes regarding convulsive treatment are as follows: ___ I consent to the administration of convulsive treatment. ___ I do not consent to the administration of convulsive treatment. Conditions or limitations: ______________________________ PREFERENCES FOR EMERGENCY TREATMENT
In an emergency, I prefer the following treatment FIRST (circle one) Restraint/Seclusion/Medication. In an emergency, I prefer the following treatment SECOND (circle one) Restraint/Seclusion/Medication. In an emergency, I prefer the following treatment THIRD (circle one) Restraint/Seclusion/Medication. ____ I prefer a male/female to administer restraint, seclusion, and/or medications. Options for treatment prior to use of restraint, seclusion, and/or medications: ______________________________________________________________ Conditions or limitations: ______________________________ ADDITIONAL PREFERENCES OR INSTRUCTIONS
______________________________________________________________ Conditions or limitations: ______________________________
Careful attention must be paid to who serves as primary and alternate agents, as well as to limitations on the agent's authority. In the Mental Health Declaration, I often counsel clients to require one on one deescalation prior to any more intrusive treatment. Please, review the forms and options in your state, and consult an attorney for advice. And once you have a from, follow your attorney's advice regarding when it should be revised and to whom you should deliver copies.
And, as with Ulysses chained to the mast, remember it may not be possible to alter your directives should you find the sirens particularly compelling.
Make a legal health check-up one of your New Year's Resolutions.