Dr. Emanuel as Lighning Rod
In any political debate, each opposing camp always attempts to find and keep the moral high ground. In our current national discussion about health reform, Dr. Ezekial Emanuel has become a "lightning rod" in the words of an article published in the New York Times today. I have read a number of Dr. Emanuel's papers through the years , even writing about one of his articles in a recent posting that I made in this blog. Dr. Emanuel has communicated thoughtful and nuanced analyses on numerous difficult ethical topics and must be considered to be one of the best thinkers in bioethics today. I agree with the New York Times article that laments "how subtle philosophical arguments that have long bedeviled bioethicists are being condensed, oversimplified and distorted in the griddle-hot health care debate".
Challenges in Ethical Health Law and Regulations
However, the ethical considerations must be evaluated in any law that is proposed. The real challenge is that nuance in academic discourse must be translated into legislative language that is ultimately then translated into very specific regulatory language to enforce the new law. Shades of grey and individual judgments that are customized by the specifics of each person and each situation often fall prey to the black and white of staying strictly within the law and the regulations. The flexibilty that is often critical in interpreting ethics within the individual's situation may be easily lost to forms, protocol and "fairness" that may be ultimately unfair.
The Example of HIPAA
One need only see how the ethical goals of maintaining proper privacy and confidentialty has been lost in a sea of forms to sign and policies for health providers to follow with the implementation of the Health Insurance Portability and Accountability Act of 1996. Has the HIPAA law actually put a shroud around the teamwork that health care professionals have to use in order to best treat their patients by creating criminal penalties for intentional violations of privacy? Do patients really benefit from signing these forms? I don't know the answers however I do know that the HIPAA law is laudable in its intent but may fall short in its practice.
Health Reform Ethics
We need health reform. We also need to approach reform with pragmatism and care, understanding that strong goals and ethical thoughts alone, do not create good laws. To create good law there must be thoughtful attention to all the ways that the law will be implemented and the ethical outgrowth of those very concrete and tactical steps that follow the passage of any law. While the ethical underpinnings of the law may reflect pruity of purpose, the final result may be implemented without the ethics we anticipate.