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Caplan: "Right to Try" Laws are Aimed Wrong

Courtesy Arthur Caplan
Arthur Caplan says "Right To Try" laws don't do what they aim to do.

More than half of U.S. states have laws that say that a dying person should have access to any treatment, vaccine, medical device that they want. For some people who have serious illnesses, getting these treatments represents nothing less than a lifeline.

The “right to try” laws attempt to give that access. At the federal level, legislators like Ron Johnson (R-Wisconsin) have introduced bills that say that people with life-ending illnesses shouldn’t be stopped from trying treatments by the FDA or any other regulatory body.

But bioethicist Arthur Caplan says they are aimed at the wrong end of the process.  Caplan is the Drs. William F. and Virginia Connolly Mitty Professor and founding head of the Division of Bioethics at New York University Langone Medical Center in New York City.

Essentially the laws say, “Look, if you’re dying, you can get anything you want,” Caplan told WCAI.  

One problem is, the FDA isn’t really in the way of experimental drugs. It’s the companies that make them that are the roadblock.

“The companies make the drugs, they test them; [the drugs] are private property,” Caplan said. "The government can’t tell the company to give them to anybody."

The FDA does have to give approval to use the drugs experimentally, but the agency approves 99.8 percent of all such requests.

“They [legislators] are beating the FDA over the head to get them out of the way, and the FDA isn’t in the way,” Caplan said.

Caplan says the companies need to make a policy, be ready to answer requests, and appoint someone who can make a decision. Right now, patients often make a request and never hear back from the company.

Caplan worked with Johnson & Johnson to build a web site that took in requests for experimental treatments. They made sure that the process was anonymous, not even revealing what country the person is from. It seems to be working, and could be a model for other companies.

“The Multiple Myeloma Foundation and others have endorsed it, doctors think it’s a much fairer way to go, and we certainly have given out a lot more drugs than under right to try laws,” Caplan said. 

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