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California Right to Know End-of-Life Options Act

Posted Sep 22 2008 5:36am

The California Right to Know End-of-Life Options Act , which passed the California Assembly in May, passed out of the Senate Health and Judiciary Committees at the end of June.

AB2747 aims to provide terminally ill patients with full disclosure of, and counseling about, all available legal and ethical end-of-life care options. But this week's American Medical News reports many physicians feel that mandating this disclosure is inappropriate and could even be harmful.

I favor disclosure. First, while behavioral economics continues to show us just what poor decision makers we human beings are, we are equally aware of the perils of physician paternalism. Moreover, the so-called "soft paternalists" do not defend masking options but only reordering them, something still permitted under AB2747. That is, while the physician must disclose all options, she can still encourage the adoption of a specific choice. The doctrine of informed consent is almost entirely tort-based, and it is rarely successfully enforced or implemented. Given the importance of the decisions at issue, this is an area where statutorily mandated disclosure has a role.

Second, disclosure of EOL options is important not only because it protects patient autonomy but also because it produces a substantively desirable result. Apprised of their options, more patient may actually have "better" deaths. And more health care resources (including Medicare dollars) can be more rationally allocated.

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