A Thin Reed to Hang On

It’s no news to most GeriPal readers that a cadre of anti-choice
forces targets end-of-life care. In their sights are common end-of-life
decisions and palliative support for those decisions. They are hostile to
people who, at the end of a long decline or stuck in a prolonged dying process,
intentionally advance the time of death and exercise their right to stop
life-prolonging technology or treatment. The operative tactic is to tie the
hands of doctors attending those patients, when palliative treatment might ease
the patient’s chosen death.

As Dr.
Timothy Quill recently pointed out in the Journal of Law, Medicine and Ethics,
“Widespread agreement exists in the United States about a patient’s right to
forego any life-sustaining therapy, even if his wish is to achieve an earlier
death.” Treatments can be stopped, and should be stopped as humanely as
possible, even if the patient expresses a wish to die in so doing.

Yet current understanding of the law and practice in most
states relies heavily on the Roman Catholic Doctrine of double effect, in which
physicians are not allowed to share or participate in a patient’s intention to
cause death.  Strict adherence to this
doctrine stifles honest patient-physician communication, gagging patients who
would express a wish to end their prolonged suffering by advancing death. If
patients do speak of a wish to die, providers beat a hasty retreat from the
bedside for fear of being labeled an accomplice.

Recently
published research reveals that onlookers and watchful colleagues already threaten
palliative care physicians with accusations
of murder and euthanasia. Over half of palliative physicians report they
have endured such accusations at least once, some as often as six times, over
the past five years. No physician was found guilty of such charges. But the inquiries
subjected them to worry, monetary loss, damage to reputation and career,
medical license suspension and even dislocation.

Treatments most vulnerable to accusation were use of
medication in the process of discontinuing mechanical ventilation and use of
opiates for symptom management. When accusations led to serious investigations,
the accusers were most likely members of the health care team.

The researchers did not ask the question that hangs heavy
over their findings: “Has the palliative treatment you give patients changed
since enduring an investigation?” It seems likely even a baseless investigation
could increase the end-of-life suffering of an accused doctor’s patients for
decades.

Empowering these watchdogs is an anti-choice tactic. Several
years ago National Right to Life drafted a bill called, ‘Starvation and
Dehydration of Persons with Disabilities Prevention Act” and introduced it in
dozens of states. Building on the Terri Schiavo episode, the bills prohibited
withdrawal of artificial food and hydration from those in permanent vegetative
states unless the person had specified a wish to the contrary in writing.

Those bills encouraged whistleblowing by a host of onlookers,
and gave them standing in court to challenge the health care decision. In
addition to remote family members, the bills authorized any current or former health care provider (nurses,
dentists, pharmacists, etc.) to initiate legal proceedings and get court-ordered
tube feeding. It raised the specter of relative strangers posted as lookouts
and running to court if a family tried to let their loved one die without a
written advance directive.  These bills mostly died in legislative committees across the nation, but language
deputizing people remote from the primary family still appears in anti-choice
bills.

Barbara Coombs Lee

The state of Georgia recently passed a
bill that facilitates accusations of improper care by legislating a
specific state of mind when providing end-of-life treatment. In a post to
follow, I will discuss in detail how Georgia’s law endangers the best practice
of palliative care.

To the degree that the palliative care community favors the
physician’s beneficence over the patient’s autonomy in the framework for
ethical practice and demands strict obedience to the rule of double effect, it
facilitates the anti-choice agenda. Permissible “intention” is a thin reed on
which to hang the distinction between felony and state-of-the-art palliative
care. When the double effect doctrine becomes codified in statute, it subverts
legitimate patient decision-making and leaves healthcare providers vulnerable
to accusations of forbidden (i.e. criminal) intentions.

Billings
and Churchill recently deplored exclusive reliance on the doctrine of
double effect and argued for greater moral pluralism in approaching end-of-life
decisions. I agree with their assessment that, “The dearth of attention to
other ethical constructs represents a poverty in moral deliberation.” That
state of poverty also puts palliative care practitioners at risk for accusation
and prosecution.

It would be safer and more patient-centered to define legal
medical practice by the patient’s clear and documented wishes and decisions,
and best medical practices in support of them.

This is an invited guest post by Barbara Coombs Lee, president of Compassion and Choices.