by Thaddeus Mason Pope J.D., Ph.D.
In May 2013, Oklahoma enacted the Nondiscrimination in Treatment Act (NITA).� This law provides: ?A health care provider shall not deny to a patient a life-preserving health care service the provider provides to other patients, and the provision of which is directed by the patient or [surrogate] . . . on the basis of a view that treats extending the life of an elderly, disabled, or terminally ill individual as of lower value than extending the life of an individual who is younger, nondisabled, or not terminally ill.?
Like a similar statute enacted in Idaho in 2012, the Oklahoma NITA is directed at disability discrimination.� This is a noble and worthy public policy objective.� But the NITA goes too far, because it also prohibits clinicians from refusing desired life-sustaining treatment ?on the basis of disagreement with how the patient or [surrogate] values the trade-off between extending the length of the patient’s life and the risk of disability.?
This blanket prohibition rests on a limited and inaccurate assumption that considerations of an individual?s disability could never have the possibility of being relevant to the appropriateness of medical treatment.� Settled principles of law and ethics have rejected such a proposition for decades.� Even disability rights advocates concede this much.� A patient?s disability is often pertinent, even apposite.� Yes, sometimes the disability is not germane to the desired treatment.� Blindness, for example, is hardly a contraindication for a kidney transplant.� But, other times, a patient?s disability may adversely impact that patient?s capacity to benefit from the desired medical intervention.…
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