Quick Hit: Hospital Visitation Rights

President Obama has finally taken a significant, positive step on LGBTQI rights.  And he’s done it in a way that benefits everyone who goes to a hospital.  The news coverage I’ve seen so far (Washington Post, New York Times) emphasizes that the new rules Mr. Obama has directed HHS Secretary Sebelius to implement will ensure that people in same-sex relationships will be able to visit and, if necessary, make decisions for their partners in hospitals.  But the actual memorandum specifies this not in terms of recognizing same-sex relationships, but in terms of respecting patients’ rights to designate who should be able to visit and/or make decisions for them.

This applies to people who would prefer that their closest platonic friend make decisions if they’re incapacitated, rather than their family; to people trying to escape abusive familial or spousal relationships; to people like me in different-sex relationships who choose not to marry; and, of course, to people in same-sex relationships who aren’t able to marry yet.  The memorandum also includes language explicitly stating that hospitals “may not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability,” which is, sadly, probably necessary.  But the conceptual framework it applies is not one of slightly expanding the allowed relationships to include not only blood relation and marriage, but “marriage-equivalent” relationships; it’s a more drastic change, which rejects the assumption that blood relation and marriage are always the best proxies for patient wishes, and instead respects patient autonomy.

This is in line with the approach favored by Nancy Polikoff, who hasn’t written about it yet but, I would guess, probably will soon: it makes marriage as a cultural formalism matter less, and instead tries to do a better job of accommodating what patients’ lives are actually like.

So I’m very glad to see this — although I’m still not extending much credit, this is an excellent move, and I’d like to hope that it’s the start of better things to come.

Update: Sure enough, Dr. Polikoff has a post up now about the memo.

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10 comments

  1. This does seem great! And you provide excellent reasons that make it better than some alternative possibilities. I am sort of surprised it needs articulating in legislation, though, because I study bioethics, and I thought there was already a pile of case law that gave people the right to appoint surrogate decision-makers and so forth. (I am less familiar with USA law than Canadian law, though). Still, it is good to formally articulate this right.

    One question I was thinking about while reading your post was what would give hospitals the right to refuse visitation to a dying person other than the dying person themselves asking not to see the visitor?

    I can totally see why a hospital might want to limit decision-making authority (or any shmoe might try to make decisions on someone else’s behalf which could be dangerous). I can also see why they might want to limit access if they were presently engaged in doing emergency life-saving work (e.g. added stress if loved ones around might increase errors and decrease concentration). But if not currently performing life-saving treatment (and if it is not to limit spreading infection or some other reason), I don’t see why they have that right. I think it is very useful to think about reasons it would be illegitimate to refuse visitation, but I think it might be equally useful to think about whether there is such an authority in the first place and if so where does it come from?

    I had a friend who had cancer and was hospitalized a lot. I was just a friend of no particular significance and they used to let me visit her all the time. They even let me sleep on the floor of her room to keep her company (well after visiting hours, I am not even sure there were visiting hours because no one ever kicked me out or said anything about my presence).

  2. “This restricts the rights of hospitals to run their business as they want to. Government should not restrict these rights.” That’s how the argument went on a friend’s facebook thread. Especially “true” for religious hospitals, the only alternative in some places.

    I hold that these rights belong to the person in the hospital, not the hospital.

    1. Happily for the glibertarian facebook troll, the government isn’t limiting those rights: they’re just saying that in order to qualify to receive reimbursement from Medicaid and Medicare, they have to meet certain requirements. If some hospitals don’t want to let patients decide who can visit them, they can just stop taking Medicaid and Medicare.

      Why would a hospital want to tell patients “we won’t respect your decisions about which friend(s), partner(s), spouse(s) and/or family member(s) can be involved in your care, and instead will just make narrow parochial assumptions and refuse access to all others regardless of your preferences”? That, I don’t know. but if it’s really important to them to do so, they’re not required to accept Medicaid and Medicare.

  3. I thought religion was supposed to teach us to hate the sin but not the sinner. At least that is what the campus Christ folk tell me when I have asked them about homosexuality. I often wonder how that is possible, if it is possible it at least seems very difficult. But in any case, I think the sin is supposed to be the sex, and since that is not what is going to take place in the hospital room, doesn’t the love the sinner part take precedence?

    1. By interesting coincidence, one of the posts that’s been sitting in my draft queue for ages waiting for me to get around to fleshing out my notes is about precisely the concept of “love the sinner, hate the sin,” and why I both despise it as it’s usually invoked (i.e. almost every time someone says they “love the sinner but hate the sin” they’re on the one hand categorizing as “sin” some perfectly harmless individual behavior and on the other hand using the phrase as a sort of incantation that’s supposed to shield them from the [accurate!] accusation that they’re just being hateful toward the person) and think it’s an important and useful shorthand for distinguishing structural bias from individual malice.

  4. I agree with you that the phrase is entirely problematic for those reasons. But if one is going to invoke the phrase as one’s protection, one should at least adhere to the phrase in one’s actions. Otherwise, just empty.

    What do you mean by “it’s an important and useful shorthand for distinguishing structural bias from individual malice.” I am familiar with those concepts, but I think I am not sure what “it’s” refers to, or else I might be missing some other connection.

    1. Well, it’s an idea I’m still developing, or I’d have written the full post already :-)

      What I mean is, roughly, that if we took the idea of “love the sinner, hate the sin” seriously, in a way I think most people who invoke it sort of don’t, and also separated it from any religious or metaphysical notions but just applied it to social structures and the people who exist in them, that phrase can be understood as a nicely concise way of expressing the idea that people may do harmfully hierarchy-reinforcing things because they’re indoctrinated to perceive those hierarchies as normal (i.e. effectively not to perceive them), rather than because of active, conscious hatefulness; and that it’s the structural biases that teach people to behave this way, not the people who behave as they’ve been taught, that are the real enemy. If that makes sense :-)

  5. That sounds really interesting. It describes more or less my preferred method of engagement on these issues, although the concept of “sin” is not one I can countenance. But I do think it is more useful to look at, disapprove of, and attempt to change social structures that encourage problematic behaviours rather than blaming the individuals who act within those structures in ways that supports them.

    I think for me one of the problems with seeing this saying as a good short-hand for addressing structural problems is that “sin” is an individualist concept (individuals sin, whereas dogma about sin talks of temptation, it is still meant to be individual choice). This seems quite different from what anti-oppression theorists are talking about when they talk about racism or sexism as structural. I think structural bias is part of it (though bias is still pretty much an individualist concept), but it is also the system of incentives, which is not individualist but more thoroughly social.

    I’d be interested to read the post when it is done.

    1. Oh, geez, you give me too much credit! But I’ve sort of had blogger’s block lately. I have plenty of ideas for posts, but each time I try to work on writing one my brain just goes “pfffllllbbbttt” and slowly collapses like a flan in a cupboard, as they saying goes.

      The rest of this week is pretty packed. I’ll try to snap out of the funk next week, though, I promise!

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