Ethical Considerations

Near the End of LifeFr. Tom Knoblach, PhD

Consultant for Healthcare EthicsDiocese of Saint Cloud

A Bit of Context …

“What can we do?” – the medical options

“What should we do?” – the ethical decisions

Ethics does not provide the answers to the appropriate use of technology and choice of interventions, but it helps us to ask the right questions

It is worth remembering that: most cases are not ethically

problematic – good decisions are made in the right way

“hard cases make bad ethics” – limit cases can test our assumptions, but ethics is not restricted to dilemmas and crises

many difficulties arise not so much out of ethical uncertainty as out of lack of clear communication and shared understanding

What Impacts the Process? Historical and technological

developments – e.g., dialysis and “God squads”; organ transplantation; forms of tube feeding; implantable devices …

Court cases – e.g. Quinlan, Conroy, Cruzan, Schiavo …

Advocacy for euthanasia and assisted suicide – Hemlock Society, Kevorkian, Quill, Maynard …

Escalating health care costs; concerns about cost containment

Concerns with various inequities in health care provision – by race, gender, age, diagnosis …

Shifting values – paternalism, autonomy, beneficence; consensus; family-centered care; shared decision-making …

Changes in delivery system – in institutions, in specializations, in financial structures, in quality measures, in regulatory oversight …

Developments in advance directives, ethics consultation, POLST …

Growth of palliative care and hospice services

Human emotions – patient, family, provider …

Uncertainty accompanies many situations – we deal with the probable, the expected, the likely … but absolute certitude generally eludes us

Against this complex and evolving backdrop, the focus remains: the patient in need of care

The persistence of the question has created much discussion, literature, the formation of interdisciplinary ethics committees, professional careers in ethics … and a general consensus about principles regarding appropriate limits to medical interventions has emerged

Complex history, but main lines can be found conveniently summarized in two documents: Deciding to Forego Life-Sustaining

Treatment: Ethical, Medical, and Legal Issues in Treatment Decisions (President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, March 1983)

Taking Care: Ethical Caregiving in Our Aging Society (President's Council on Bioethics, September 2005)

More recently, IOM on “Dying in America” … needs critical attention due to its focus on individual / proxy choices as primary criteria in the advance care planning it strongly advocates – see www.iom.edu/endoflife

Ten major features of this consensus:

1) Competent patients have the right and responsibility to make treatment decisions for themselves, including the right to limit or refuse further treatment

2) Informed consent is required for treatment decisions

3) Interventions that cause excessive burden for the patient, or which do not offer reasonable hope of benefit, are considered extraordinary care and may be foregone

4) Incompetent patients retain the right to appropriate care, exercised through some form of advance directive or designated health care agent to speak on their behalf

5) In the absence of an advance directive or an agent, the patient’s best interests are to be weighed in making decisions

6) Because patients are persons who live in the context of a set of relationships, family members and other significant persons in the patient’s life are to be engaged in decision-making when appropriate

7) There is a morally-decisive distinction between the ethically appropriate “allowing death to occur due to underlying causes” and the ethically objectionable “causing death to occur by actions or omissions”

8) Given the required justification in excessive burden or futility, the actions of withholding interventions and withdrawing interventions are ethically equivalent

9) Treatment decisions are to be based on medical indications rather than economic, sociological, demographic, or other factors

10) Adequate palliation of pain is permitted even if this may foreseeably shorten the patient’s life

[Note: Catholic teaching would concur with all of these principles, although at times with some essential provisos and different underlying rationale]

While decision-making is a process, the common object of ethical decisions is specific interventions – what to do, when to begin, when to stop … what is ordinary and what is extraordinary?

Both the content and the process aspects of the decision need careful attention to achieve a good outcome

Ordinary and Extraordinary MeansGeneral principles (cfr. also ERD 56-

59): One is obliged to use ordinary (or

proportionate / “ethically obligatory”) means to preserve life and health

One is not obliged, but may be permitted, to use extraordinary (or disproportionate / “ethically optional”) means

Normal care given to all sick persons should be continued in any case

Distinguishing Ordinary and Extraordinary Means

In general, such decisions: must always be case-specific; must be re-evaluated regularly as the

situation evolves; require prudential applications of

principles to achieve whatever “moral certitude” is possible

are best made with broad consultation among patient, family members, medical team, and perhaps ethics committee/consultants

are medical decisions, to be based on medical indications, in light of the holistic view of the person who is in a particular situation

“PREHAB”:

1) Patient Preferences … 2) Risk … 3) Expense … 4) Hope … 5) Availability … 6) Benefits vs. Burdens …

Principles Useful in Distinguishing Double Effect

Invoked when the same action has both good and evil consequences (cfr. “good and evil” in context)

Presented by Aquinas, ST, II-II, 64, 7; context of legitimate self-defense

Variously presented, critiqued by consequentialists (Mill, for example) as false distinction

Importantly, DE was supported by SCOTUS in two PAS cases in 1997: Vacco v. Quill and Washington v. Glucksberg

Classically, four conditions that must be met simultaneously: 1) The action is morally good or

neutral in itself (“nature-of-the-act condition”)

2) The good effect alone is intended; the evil effect may be foreseen but not intended (“mean-end condition”)

3) The good intended must outweigh the evil foreseen (“right-intention condition”)

4) The good effect cannot result directly from the evil effect (“proportionality condition”)

Common illustrations of Double Efffect: Removing the cancerous uterus from a

pregnant woman … Giving pain medication adequate to

palliate pain even if may hasten death …

Critical terms: direct and indirect; to intend and to foresee; the moral act (means + intention)

Direct vs. indirect What happens essentially and necessarily

due to performing the action of this type, vs. what happens coincidentally that would be avoided if it was possible to do so

Intention vs. Foresight What I desire to happen, my reason for

acting, vs. what I expect may also happen though not my reason for acting

The Moral Act The end or goal I intend that motivates my

choice of the particular means I use (vs. circumstantial intention and vs. “premoral goods and evils” proportionalists)

Principles Governing Cooperation when considering joint ventures /

alignments also rely on accurate understanding of

intention and circumstances Fifth edition of ERD (2009) removed the

1995 Appendix … See chart …

Is P’s action ethically good?

Yes

No ethical issues with cooperation

No

C is not really a cooperator but a wrong-doer in own right

(“accomplice”) Is C’s action ethically good? N

o Y

es Does C concur with P’s intention

to do wrong (either implicitly or explicitly?)

Yes

Formal cooperation (never justified)

No

Material Cooperation may be justified in some

circumstances as follows:

Does C participate directly in the wrong-doing, or contribute to the necessary circumstances of the wrong action, so that the wrong would not take place without C’s action?

Yes

Immediate Material Cooperation (while C’s subjective culpability may

be reduced by force or reasonable fear of serious harm in refusing to cooperate, immediate material cooperation in intrinsically wrong actions is never justified by any circumstances)

No

Mediate Material Cooperation (more or less justified based on the following

questions:)

Is C’s action causally proximate or remote to P’s action?

How objectively serious is C’s reason for cooperating with P?

more grave: more justifiable less grave: less justifiable

Proximate: less justifiable Remote: more justifiable

The Principles Governing Cooperation:

A Flowchart Summary

How do you actually decide?

Discussion