June 1990 XI/10
- USE OF ARTIFICIAL HYDRATION AND NUTRITION:
- THE CLOUDS ARE LIFTING
For the past ten years the use of artificial hydration and nutrition (a.h.n.) for patients in a persistent vegetative state (p.v.s.) has been the subject of ethical and legal dispute. In the Catholic tradition for example, some maintained that removing a.h.n. from any patient was unethical because it was the same as starving a person to death. For them, withdrawal of artificial hydration and nutrition would always be murder or euthanasia. Others maintained that while it was possible in theory to withdraw a.h.n. from p.v.s. patients, in practice it should not be allowed because use of a.h.n. did not constitute a grave burden for the p.v.s. patient and should be considered effective therapy because it sustained life, albeit at a low level of function. Still others maintained that the traditional teaching of the Church allowed the removal of a.h.n. from patients in p.v.s. They maintained that p.v.s. involves a lethal pathology (inability to chew and swallow) and that circumvention of the pathology through a.h.n. imposes a grave burden (at least upon the family and perhaps society), or that such therapy is ineffective insofar as the purpose of life is concerned.
In the realm of legal reasoning, courts in various states handled the situation differently. Courts in New Jersey and Massachusetts for example, allowed the withdrawal of a.h.n. from patients in p.v.s. at the request of family members, reasoning that the family members were capable of expressing the wishes of incapacitated persons. In Missouri, and to a certain extent in New York, the state courts rejected the family testimony as evidence sufficient to prove the wishes of the incapacitated person. The Supreme Court of Missouri stated that "clear and convincing evidence" of the p.v.s. patient's desire must be presented before a.h.n. could be removed. While the Missouri Supreme Court did not define clear and convincing evidence, it was clear that the incapacitated person's previous statements to family members did not suffice.
While the dispute concerning the use of artificial hydration and nutrition is far from over, as a result of some recent statements by the magisterium of the Church, and the recent decision of the United States Supreme Court, the solution to the question is becoming more clear.
Recent statements by Bishop John Leibrecht (Origins, 1/11/90), the local bishop of the region in Missouri where the Cruzans live, and by the bishops of the Texas Catholic Conference (Origins, 6/7/90) have clarified the issue for Catholic teaching. While not adding anything new to the dialogue, these statements confirm that removal of a.h.n. from p.v.s. patients is in accord with the traditional Catholic teaching. In the course of their statement, the Texas Bishops agreeing with several medical societies, acknowledge that p.v.s. patients "are stricken with a lethal pathology." From the Catholic viewpoint this is a fundamental fact. This fact differentiates the withholding of food and water from people in p.v.s. from withholding food and water from infants, retarded adults, and other disabled people who do not have a lethal pathology but need assistance in obtaining nutrition and hydration. Clearly, the lethal pathology of the p.v.s. patient may be circumvented by means of a.h.n. But is there a moral obligation to circumvent the lethal pathology? Only if it is truly beneficial for the total well-being of the patient.
While the decision of the United States Supreme Court in the Cruzan case did not provide immediate relief for Nancy Beth Cruzan or the Cruzan family, it did dispose for more rational procedures in the future. First of all, the court declared that from a legal perspective, a.h.n. is a medical therapy, thus, implying that it should be subject to the burden/benefit analysis utilized when judging any medical therapy. Secondly, in allowing the withdrawal of life support from an incapacitated person, the court recognized the difference between killing a person and allowing the person to die when therapy is no longer beneficial. Thirdly, even though the Court allowed Missouri to require "clear and convincing evidence" that a person in a p.v.s. would want life support removed, the Court implied that other states could require a less stringent standard of evidence, such as living wills or durable powers of attorney. Indeed, an individual state could even decide to allow decisions concerning use or withdrawal of Life support to be made in the family forum by loved ones and medical caregivers. This method of decision making was accepted in the United States before the Karen Quinlan case and is followed today throughout most of the world. In not extending to the other states the stringent requirements for evidence developed by the Missouri Supreme Court, the United States Supreme Court eviscerated the decision of the Missouri Supreme Court. Recall that the legal decision of the Missouri Supreme Court was based upon ethical reasoning which did not recognize the important distinctions which must be utilized in cases of this kind; (e.g., a. "But this is not a case in which we are asked to allow someone to die . . . Nancy is not terminally ill . . . this is a case in which we are asked to allow the medical profession to make Nancy die by starvation and dehydration." b. "Life is precious and worthy of preservation without regard to its quality." c. "A guardian's power to exercise third party choice arises from the state's authority, not the Constitutional right of the ward."). Indeed, the ethical reasoning of the Missouri Supreme Court seemed to indicate that a.h.n. should never be removed from p.v.s. patients. Clearly, the United States Supreme Court does not agree that removing a.h.n. from Nancy Beth Cruzan is killing her, did not affirm that the quality of life is a meaningless consideration when determining the removal of life support, and did not absolutize the rights of a state appointed guardian. Given the situation in Missouri, it seems a propitious time for the legislature to enact some reasonable norms in regard to removing life support from p.v.s. patients.
Can any practical norms be developed as a result of these recent documents? It seems the following conclusions may be drawn:
1) When making moral or ethical decisions concerning the removal of a.h.n. from p.v.s. patients, one may not say that such an action is contrary to Catholic teaching. If a.h.n. imposes a grave burden upon a p.v.s. patient, or is judged ineffective therapy for the integral well-being of the patient, then it may be withdrawn.
2) The evidence which will demonstrate that a p.v.s. patient would want a.h.n. withdrawn were he or she able to express an opinion, will vary from one state to another. Some states will recommend the use of living wills or durable power of attorney in order to establish evidence. Other states will accept the testimony of family if it is coupled with court approved medical testimony that a lethal pathology exists. Still other states, imitating the custom in most of the civilized world, will allow loved ones and caregivers to make decisions for incapacitated persons.
3) When faced with decisions concerning removal of a.h.n. or any life support, caregivers and administrators of health care facilities should be concerned with the total well-being of the patient, and the patient's family, rather than with avoiding litigation. While the two goods are not incompatible, many caregivers and administrations of health care facilities often follow the advice of house counsel and gear all their actions to avoiding litigation. Time after time, physicians and CEOs of health care facilities have refused to remove life support systems unless there is a court order to do so. My point is not to ignore the law, but to insist that compassionate patient care can be achieved while avoiding litigation.
Kevin O'Rourke, OP
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