June 07, 2006

I wonder if this is actually a good idea.

For me to post this, that is. I haven't had a trollfest on my blog in ages, but maybe now's a good time to tempt one.

My topic today is this post at Modblog (which, just for this entry, is free of kinky sex and graphic procedural photos, so click away) on the implantation of a blessed gold bead into a person's forearm as a faith-based substitute for a religiously-forbidden medical procedure. I was a bit startled to see this, since I tend to think of faith healing as physically noninvasive, but the idea of having a piece of holiness physically incorporated into one's body is a very nice one.

The discussion at ModBlog, though, has focused less on this procedure than on the fact that this person declined the more conventional medical intervention because of her religion's disapproval of it. I don't know what the original ailment or suggested procedure might be, only that this person's Muslim faith forecloses the procedure and her mullah suggested this instead. After a few predictable reactionary comments the conversation has settled in to a debate over the role of religious dictates in medical decisions. The central question: is it wrong for a religion to tell its followers they mustn't have particular beneficial medical procedures, or isn't it? Is it irresponsible for people to follow such dictates?

I've shocked myself a bit by deciding that no, with one particular caveat, it isn't. My caveat has of course come up in the ModBlog discussion: the age of discretion. I don't think a child too young to voluntarily adhere to a given religion ought to be denied necessary care based on its parents' religious prohibitions. In practice that's almost impossible to separate from being given or denied care based on the parents' secular values, and this is about two steps from becoming a very old and very ugly debate. I'd like to leave it aside for the moment. Given that we are free, flexible, and intelligent human beings around here, I see no reason why adults capable of making their own decisions and evaluating them should be protected from religious dictates which may run counter to their self-interest. If one doesn't agree with the dictate, one can ignore it, challenge it, or discard the religion entirely. If one does agree with it, great. Medical care isn't the decision of the patient's clergyperson, but that doesn't make it inappropriate for the clergyperson to offer doctrinal input that the patient is willing to hear. People are constantly giving me their advice on things that aren't their decision, which is fine because I don't have to follow it if I don't bloody well want to. It comes down to freedom of choice, which requires a variety of options and the respectful acceptance of whatever informed decision is eventually made.

So says the girl with her obsession with free will engraved on her skin. I'm curious what the rest of you think.

Posted by dianna at June 7, 2006 06:20 PM

I'm a little confused about the question; when you ask "Is it irresponsible for people to follow such dictates?" are you asking if it's irresponsible for the fellow who got the gold bead implanted was being irresponsible by choosing faith over health, or are you asking if it was irresponsible of the body modifier to help him with his plan?

If the former, I tend to think the answer's somewhat straight-forward: Not if he's thought it through carefully. If he's coming from the perspective that this medical operation is a grievous moral offense, it could be an entirely responsible decision to sacrifice himself for that.

I think the more interesting question is what moral obligation the modifier has. On the one hand, if he refused to help the fellow, said fellow would probably just go get it done by someone else. At the same time, if the modifier just goes along, the modifier's enabling a decision that he may find morally repugnant.

I think it's a situation not unlike the stridently pro-life pharmacists who refuse to fill prescriptions for morning-after pills, on the (perhaps ill-informed) opinion that the pills cause an abortion, and are thus the moral equivalent of murder.

I tend to believe that when you take on a profession you have a duty to perform actions you might think are morally wrong, because people are relying upon you to do your job without judging. Not to say that professionals should be entirely amoral in the performance of their duties, but that any refusals should be predicated on generally accepted ethical standards, rather than idiosyncratic moral judgments. You know your pharmacist won't give you a prescription drug without a prescription, so you can mold your behavior around that. But you have no reason to expect your pharmacist won't fill a given prescription because she believes the drug in question is immoral, so that's unacceptable.

Posted by: Zach S. at June 7, 2006 09:28 PM

Oh, I think I may have been unclear where the question of irresponsibility came in. It was one of the things mentioned in the comments on Modblog; the person getting this implant is a citizen of a country with socialized healthcare, and the argument was advanced that forgoing the medical procedure (for religious or other reasons) would eventually lead to massive complications and was therefore not merely personally reckless but also a deliberate waste of public funding.

I sort of threw the concept out and then abandoned it, now that I read back over my post. That's mostly because I don't find it terribly persuasive. A person's health is not the property of the government no matter what the healthcare system, and complications to that health should not be considered primarily in terms of their cost to John Q. Taxpayer. We are not living in that much of a sci-fi bureaucracy world quite yet.

And I think you've covered practitioner responsibility in a way that neither I nor the folks at Modblog really touched on, so I'll leave that in your hands.

Posted by: Dianna at June 7, 2006 11:25 PM

We begin by assuming the following:

1) This guy has something wrong with him that he doesn't like
2) It can be remedied
3) We want to help him, and indeed feel a moral (or perhaps legal, if we're the government) obligation to do so.

If the guy just refuses the treatment and doesn't do or say anything else, or even if he says "sorry, it's against my religion," then this is an easy case. We butt out, he dies (hopefully,) hooray for Darwin. Of course if he's contagious or an imminent threat to others, religion be damned.

But here's the problem: after dissing our leet medical skills, he goes and gets a prayer bead lodged in his arm instead of getting the medical procedure done.

From this subsequent act, we can conclude that he's telling us, "sure I want help, just not from you." However, we're left with a guy who still wants to be helped but is doing ridiculous things that obviously won't help him. Even if we assume that he and all the poobahs believe wholeheartedly in their religion, we may have some residual moral right, or perhaps even an obligation, to inform him (and them) of the plain facts of the matter: "Guy, you desire result X. Procedure Y is the only way to achieve result X. Religious Bead Z is not going to do jack shit. Sorry if it sounds like we're dissing your religion, but us secularists don't go around saying that Scientific Discovery Q will forgive the sins of all mankind."

Obviously none of this arrives at the conclusion "we get to force Guy to do Y." But we may have the right to prevent the poobahs from claiming that Religious Bead Z produces result Y, especially if there are imminent health and safety issues. By claiming that there exists an alternative to Procedure Y, the religion is preventing this guy from making a fully informed medical choice; things might be different if he were faced with the stark choice of sinful health or sickly sainthood. And quite frankly, I'm not sure it's defensible to claim that the religion should be immune because they're obviously not licensed doctors. The whole idea of religion is that you've got a bunch of people who'll believe any ridiculous thing you say, and believe that it's coming from an authority higher than anything mortal, including doctors (and lawyers!)

Posted by: poot at June 8, 2006 04:46 AM

Two things from me:

One is that absolutely anyone has the "right" to counsel me about what I should do in a given situation, including a medical one, particularly if I ask them. This includes my mom, who is not a medical doctor, but has in the past consulted with me via phone on such things as "Hi Mom, I was making guacamole for dinner and slicing a tomato and how do you know when you need stitches?" In that particular case, she talked her hypochondriac daughter out of seeking stitches for what was, in retrospect, probably not much of a cut. She was probably right about not needing medical attention; the specific "cure" she suggested was something on the order of running it under cold water and calming down. A medical professional could very well have given me different advice, like: (a) have it looked at, or (b) yeah, we should probably put a stitch in that to be on the safe side. Was I wrong to listen to my mom? No, I asked for her counsel on the matter, it made sense in terms of my understanding of the situation/world/her general wisdom about these matters, so I followed it. That was my choice, and I generally follow her advice on about 80% of things medical although she is certainly not a doctor. Was she wrong to advise me? No, again, I asked for her advice, and she gave it to me in accordance with her knowledge of me and her general experience as a mom. Nothing wrong there.

Second: I know that the immediate argument against that, for those who'd like to argue my first point, is that a cut on the finger, however deep, may/may not be the same as the "medically necessary procedure" that this person on BME was faced with. The immediate temptation that arguers seem to have in a debate like this is to go hysterically hyperbolic, as in this remark a few comments down the BME comment thread: "A 3 year old child born into a jehovahâs witnessesâ family who needs a life-or-death blood tranfusion will be denied it. SO, in that spirit, i say that piercer was irresponsible in his act of helping this person contribute to his failing health." But why immediately assume that the person's condition was life-threatening (or, as Dianna pointed out, why immediately equate a Muslim adult with a 3-year-old child in terms of their capacity for personal decision-making)? For all we know, it was a fucking LASIK surgery. The rhetoric deflates a lot if you don't immediately assume that the person is going to die for listening to their mullah. And considering how cynical most of the people I know & talk to are about doctors and HMOs and medical billing and "medically necessary procedures," it kind of cracks me up that that perspective is so easily abandoned for the sake of vilifying someone's personal choice not to seek whatever medical procedure this was, AND for the sake of vilifying the piercer who performed the procedure that this adult came and contracted with them to do. What was the piercer supposed to say? "Yes, I am a body modification professional, but I will not perform this body modification on you because it has a religious rather than scientific basis. Get out of here, and go find a doctor."

Actually, there's a third thing, if we do want to assume that this is a life-and-death situation this person is/was facing. I work with people living with AIDS and HIV. Some of the people I know have been living with AIDS for twenty or more years, since the crisis began. Back in 1985, if you didn't immediately go on AZT, you were either (a) too poor to afford it, or (b) a suicidal idiot. But many of the people I know who've been living with the disease that long chose not to go on AZT, against all available medical advice at the time, and that turned out to be why they're in pretty good shape now, because AZT -- the thing that, at the time, was thought to be the only way to save your life -- turned out to be pretty poisonous and to kill a lot of people via side effects like wrecking your liver and eating your internal organs and making you too sick to keep your weight up. In other words, off the top of my head I could come up with a pretty robust list of people I personally know only because their decision not to follow the medical advice they were given meant that they avoided dosing themselves with poison and lived long enough to meet me. Some of them credit, instead, their longevity with their disease to other medications, self-medication, no medication, non-Western medicine, and yes, a lot to prayer. In general, I like Western medicine and I think that religion is bunk, so I know the prayer thing wouldn't be my best healing choice, but who the fuck am I to argue with someone who was told 20 years ago that they just signed their own death warrant, and is still here to joke about it?

Posted by: katie at June 8, 2006 09:32 AM

Bravo, Katie. Asking Mom is an excellent comparison of the sort which I couldn't call to mind while writing this post. People have, and are entitled to have, their own individual rosters of who they will listen to on particular matters and why and to what extent. And as you say, in many cases there are >1 courses of action which will give an acceptable result. Requiring adherence to one and only one adviser and body of knowledge is very often just unnecessary.

Continuing Katie's speculation, since it isn't stated in the post whether the medical procedure was surgical or not, we don't know that it wasn't something where faith could help. Medication for emotional or psychological disorders? If you believe that a blessed gold bead is going to help you manage your depression, then by god, as it were, it's going to help you.

Poot, I beg to differ. I absolutely agree that we (assuming we are the medical profession here for a moment) get to tell the patient that in our expert opinion this blessed bead idea is total crap and will not help. I've no doubt that this person's doctor said so in no uncertain terms. But I don't think that that equals a right or responsibility to prevent the patient's other advisers from having their say no matter how full of shit we think they are. I see your point about false information preventing a fully informed decision, but, see, we have already done the informing. The patient is aware that we believe X will help and Y is bunk, and having consulted the mullah the patient is now also aware that the mullah believes that X is wrong and Y will help. What happens now is that the patient has to decide who to believe. If she (FYI, this particular individual is a woman) decides to believe the mullah, that's her right. I can decide to believe the sky is purple if I want to; believing in things that are incorrect by any objective or subjective standard you like is not a crime.

Posted by: Dianna at June 8, 2006 02:42 PM

But we (assuming we are the government) do punish people for knowingly leading others to believe things that will cause them harm. That's why fraud is a crime. You can be guilty of grand theft by fraud. You can be guilty of rape by fraud (using misrepresentation to get someone to consent to sex).

There was an interesting case, People v. Phillips, that I think is relevant here. It was decided in California in 1966. Essentially, this family had a kid with a fairly nasty form of cancer, but one that was caught early. The kid was in a treatment program at a hospital and was scheduled to have a surgery that would almost certainly have left him cancer-free. But the surgery involved amputating his eye, and the parents were naturally reluctant. Then they abruptly cancelled the surgery; they'd been talking to a chiropractor, Phillips, who had convinced them that with a spinal adjustment he could cure the kid's cancer.

Without the treatment program or the operation, the kid's condition got rapidly worse, and he died within a year. The District Attorney arrested Phillips and charged him with Grand Theft by Fraud. He also charged Phillips with Second Degree Murder. The reasoning was that Phillips' fraud had caused the kid's death and that Phillips knew the kid was likely to die if he didn't get the surgery.

The jury convicted on both counts, but the appellate court overturned the murder conviction on somewhat technical grounds that I won't bore you with (the prosecution had gotten a jury instruction for Felony-Murder, which the appellate court decided had tainted the necessary finding of malice for a murder conviction).

Now, the religious situation is different because of the mental state of the religious advisor. So long as the cleric honestly believes that what he's advising is the best course of action, it isn't homicide. And, of course, the law isn't the final word on what's moral and immoral; it's just what society deems to be so transgressive as to be worthy of state punishment.

Posted by: Zach S. at June 8, 2006 03:51 PM

I just wanted to say that if I were a friend of the original person with the implant, I would insist on his/her seeing multiple clerics. Clerics are no more the final word on religion then doctors are on medicine. Clerics can be just as wrong in their interpretation of a religious text. (And frankly, I think, seeing enough clerics would clear the way to the treatment.. Atleast, thats what I have found so far. Religious texts are vague by design.. for a purpose!)

As for the society's reaction, I wholly agree with Dianna. An informed refusal to treatment taken by a person capable of informed decision has to be respected at all costs with the caveat that it doesnt affect anyone else directly. (You got bird flu, you get quarantine, whether you like it or not.) Freedom above all.

As for the doctor's moral, todays bioethic accepts that while it is a doctor's duty to ensure that the patient is well informed and capable of making an informed decision, the doctor must finally accept the patient's verdict. For instance, this. So, the doctor is in no way doing anything amoral by allowing the patient ot go with the clerics as long as he has made his effort to ensure the 2 things - a) Patients ability of taking a decision and b) Patient has all the medical information that might be useful.

Posted by: anshul at June 9, 2006 01:19 AM

For starters, I'd like to re-emphasize one of my original points: unlike in many hypotheticals where patients refuse treatment, a key distinction here that no one else seems to have addressed is that this particular patient (or non-patient, whatever) has evinced by her actions an actual desire to get well. That may not be dispositive as to what the government or society can or cannot do, but it should color this discussion. Normally the attitude is that once the patient has made the call, it's the civilized thing to not yell at them and stuff. Here, because of this twist, maybe not so much. But now back to our quandary.

I would like to build upon Zach's commentary. Since he has voluntarily brought in more technical legal stuff, I figured I'd run with it. You cannot see or hear it over the internet, but I am squealing in delight.

First off, Zach is quite correct in pointing out that we sometimes criminally punish people for knowingly misleading others into harmful results. However, he also points out that in our preferred hypo, where the mullahs all genuinely believe in this stuff, the black-letter cases don't really apply.

However, I would like to point out another route by which the mullah's conduct might be considered criminal if the patient's condition does not improve or deteriorates.

Katie's example of asking Mom for advice is a good one here, although perhaps not directly on point because I assume Katie is no longer in the "special" legal relationship she once was with her mother. But let's say she was 15 again, and her mother was still legally obligated to care for her. Katie cuts her finger, goes to Mom, who makes her recommendations, and everything seems fine for a day or two. Then the finger turns purplish-black. Mom, being a mom, rushes her daughter to the hospital. She was wrong, it happens, no biggie, she rectified the situation and satisfied her legal duty of care.

Now let's substitute Mullah for Mom, disorder for cut finger, and change "rushes her daughter to the hospital" with "tells the believer she's still a sinner if she gets the medically necessary procedure, even after the prayer bead gets stuck up in there (obviously it didn't work.)" Under these circumstances, I think the Mullah is culpable for the believer's worsening condition. In order to explain why, I'll attempt to show why the Mullah might be held legally liable.

Generally speaking, there is no special duty of care owed other citizens in America. That is to say, you have no special legal duty to act in another person's interests, even if, say, they're drowning and you're the only one who can save them. And if you don't have to act to save them, you sure as hell don't have to give them useful information - you can even do the exact opposite (all hail the internet.) This is where Dianna's argument comes into play: anyone can spout off any ridiculous thing in response to an indvidual's situation, and there's no duty that they tell the truth or act in that individual's best interests.

There are exceptions to this doctrine, however. Some are obvious: contracts, parent/child relationships. Some, however, are not. If you volunteer to help someone, you have to follow through, even if originally there were others who might have been able to help. The law assumes that your voluntary act destroys the possibility of others helping.

The situation before us, then, seems to be a blend of two criminal law hypos: 1) the voluntary assumption of the special duty of care hypos (jumping in a pool to save a person from drowning then deciding not to because the guy's an ass,) and 2) the "criminally negligent parent" hypos, where ignorant inbred parents notice their baby getting really, really sick but are too stupid (like really, honestly too stupid) to get the kid to the ER.

First off we have the mullah, whose religion, by anyone's standards, does not have a great track record with curing actual tangible, diagnosible, medically treatable diseases or disorders with prayers and beads. They are aware that their believer is drinking deep from the metaphorical kool-aid wellspring. When this situation occurs, they don't just spout off their philosophy. They propose an alternative means of treatment with 1) an implicit or explicit claim of efficacy, and 2) knowledge that believer's mental state makes her willingness to choose Option Sanctified over Option Sinful almost a foregone conclusion. This, Dianna, is where I believe your "sky is purple" argument fails. We are not talking about a mullah telling the believer the sky is purple. We are talking about a mullah telling the believer that they can and will actually help them. The fact pattern now is no longer about beliefs. It is now about actions.

(First aside: if the mullah has access to any empirical evidence that the prayer bead has been ineffective in treating this ailment in the past (and no, stories and fables don't count to counteract modern, documented negative examples) his failure to disclose is both morally wrong and potentially opens the door to liability for straight-up fraud-based crimes, including perhaps homicide, as discussed by Zach.)

I contend that, because of the specific mindsets of the actors involved in this particular example, the mullah's claim to possess an alternative treatment option that conforms with the believer's religious requirements creates between the mullah and the believer a special, voluntarily assumed duty of care. Because of the specific circumstances, I think the legal assumption that this voluntarily undertaking "destroys" all other possibilities of aid tracks pretty well, since the religious doctrine has in effect done so by providing both the prohibiton of traditional treatment and its own alternative.

Thus, I believe that whatever else happens, if the believer's condition worsens or does not improve, the mullah is at the very least morally culpable. The mullah is in the position now of the ignorant, inbred parent who fed their dying baby two aspirin and took a wait-and-see approach. Once there is a duty of care, no subjective belief, however strong, is a sufficient excuse for failing to take objectively reasonable steps to help the one in need. Nor is it relevant any longer that the one to whom the duty of care is owed refuses medical treatment. The mullah made his bed by intially claiming he could help, and now has to lie in it.

Granted, there will be other hypos that won't track as nicely with the voluntary relationship of care legal jargon. But honestly, this one seems tailor made for it: we've got a well-known, diagnosable, treatable disorder (unlike AIDS 20 years ago, where medical science was self-consciously and admittedly wandering around in the dark,) and a religion that both prohibits the treatment and proposes its own alternative .

Quite frankly, I'd like to see the mullah charged with solicitation or conspiracy to practice medicine without a license. Incidentally, for anyone curious, the guy who installed the bead would most likely get off scot free, as is appropriate, because he didn't believe he was performing a medical procedure of any kind. It would be very interesting case if he were fully informed, however. Very interesting indeed.

Posted by: poot at June 10, 2006 11:40 AM

Just to clarify, when I said that the patient has a right to refuse treatment, I did not mean an intent not to get well but the situation where a patient for some reason doesnt want a particular treatment.

A patient has a right to refuse any particular treatment he/she is offered. If I think, for whatever reasons, that, I want to listen to a non-doctors suggestion over a doctors, I should have the right to do so.

Also Phillips was providing an alternative tretment while the Mullah is merely providing advice. I dont think that the Mullah is guilty or can/should be prosecuted. To prove a culpable criminal offense, intent would be neccessary. I dont think that Mullah has any bad intentions.

Posted by: anshul at June 10, 2006 02:00 PM