End-of-Life Dilemmas

1. End-of-Life Dilemmas Jody Blanke Distinguished Professor of Computer Information Systems and Law Mercer University

2. Euthanasia • Greek: euthanatos, euthanasia, meaning “good death” or “easy death” • Euthanasia: “the mercy killing of the hopelessly ill, injured or incapacitated”

3. Active or Passive Euthanasia • Active euthanasia: intentional commission of an act, which results in death • administration of a lethal dose of medication • Passive euthanasia: when life-saving treatment (e.g. respirator) is • withdrawn • withheld

4. Voluntary or Involuntary Euthanasia • Voluntary: the person suffering from an incurable disease makes the decision to die • Involuntary: a person other than the one suffering from an incurable disease makes the decision to terminate life

5. Value Questions Face Courts Re Voluntary Euthanasia • Who should decide to withhold or withdraw treatment? • On what factors should the decision be based? • Are there viable standards to guide the courts? • Should criminal sanctions be imposed on a person assisting in ending a life? • When does death occur?

6. Right to Self-Determination • Both statutory and case law have presented a diversity of policies and views over time

7. Schloendorff v. Society of New York Hospital (N.Y. 1914) • Often-cited early case: • “Every human being of adult years has a right to determine what shall be done with his own body; and the surgeon who performs an operation without his patient’s consent commits an assault for which he is liable for damages.”

8. In re Quinlan (N.J. 1976) • Held that a Constitutional right to privacy protects a patient’s right to self-determination • Applied a test balancing the state’s interest in preserving and maintaining human life against the patient’s privacy interests • Held that the state’s interest did not justify interference with her right to refuse treatment

9. Superintendent v. Saikewicz (Mass. 1977) • The court applied the Quinlan balancing test to a 67-year old mentally retarded patient suffering from leukemia, and allowed the patient to die to spare him the suffering • But the court deviated from Quinlan in a major way. It rejected Quinlan’s approach to relying on information from a patient’s guardian, family, or physician • It held that while this information may be helpful, it is ultimately the responsibility of the courts to make decisions of life and death

10. In re Dinnerstein (Mass. App. 1978) • A Massachusetts appellate court narrowed the need for court intervention by finding that “no code” orders are valid to prevent the use of artificial resuscitative measures on incompetent terminally ill patients

11. In re Spring (Mass. 1980) • In clarifying Saikewicz, the court held that different factors, such as a patient’s mental status and his or her medical prognosis with or without treatment must be considered prior to seeking judicial approval to withdraw or withhold treatment from an incompetent patient

12. In re Storar (N.Y. 1981) • “Every human being of adult years and sound mind has the right to determine what shall be done with his or her own body.”

13. A Patient’s Wishes • Courts will usually follow the desires or wishes of a patient • An advance directive, like a living will, is persuasive evidence of those wishes • A court may likely appoint a guardian if • Family members disagree as to incompetent’s wishes • Physicians disagree on the prognosis • A patient’s wishes are unknown because he or she always has been incompetent • Evidence exists of wrongful motives or malpractice

14. Defining Death • American Medical Association (1974) • when there is “irreversible cessation of all brain functions including the brain stem.”

15. Clear and Convincing Evidence of a Patient’s Intention Not to Prolong Life • Persistence of statements regarding an individual’s beliefs • Commitment to those beliefs • Seriousness of statements made • Inferences drawn from surrounding circumstances

16. Cruzan (U.S. 1990) • The U.S. Supreme Court held that • Missouri can require clear and convincing evidence of an incompetent person’s wishes • Missouri Supreme court did not err in not finding clear and convincing evidence • Due process does not require the state to accept the substituted judgment of family members

17. Cruzan Epilogue • The Missouri probate judge was convinced by former co-workers of Nancy that she would not have wanted to live “like a vegetable” and ordered the feeding tubes removed

18. Legislative Response • After the Cruzan decision, many states began to draft new legislation in the areas of living wills, durable powers of attorney, health care proxies, and surrogate decision making

19. Physician Assisted Suicide • Physician assisted suicide presents profound questions of law, ethics, morality, religion and public policy • 35 states have statutes specifically banning assisted suicide • Another 9 criminalize it by common law

20. Dr. Kevorkian • Assisted in many suicides in the 1990s • Some states enacted legislation in response e.g., Georgia • Finally, successfully prosecuted for murder – on the fourth try • Paroled in 2007 after serving 8 years of a 10-25 year sentence

21. Oregon’s Death with Dignity Act • Ballot initiative passed in 1994 • Challenged in court • Becomes effective in 1997 • Legal (societal) experiment • “Oregon, the Suicide State”?

22. Oregon’s Death with Dignity Act

23. Oregon’s Death with Dignity Act

24. Oregon’s Death with Dignity Act

25. Supreme Court Cases • Washington v. Glucksberg and Quill v. Vacco (1997) • Challenged bans on assisted suicide in Washington and New York states • There is a distinction between letting a patient die and making one die • “Fundamental liberty interest” and “equal protection” challenges denied • Court referred to Oregon and the “’laboratory’ of the states”

26. Other States • Death with Dignity Act • Washington passed it in 2008 • Vermont in 2013 • California in 2016 • Montana • First Judicial Court ruled that a terminally ill patient has a right to die under the Montana Constitution (2008) • Montana Supreme Court held that physician assisted suicide is not banned by state law, but did not address the issue of whether there is a constitutionally protected right to die (2009) • New Mexico • Supreme Court heard a case in Oct. 2015 – no decision yet

27. Terry Schiavo – Florida (2005) • 1990 – Terry Schiavo became comatose as a result of eating disorders • 1998 – husband sought order to remove feeding tube • 2005 – Schiavo died after feeding tube was removed - after 14 appeals, numerous motions and hearings, 5 federal suits, state legislation, federal legislation, and 4 denials of certiorari by the U.S. Supreme Court

28. The Netherlands • Decriminalized physician assisted suicide in 1993 • Legalized it in 2002 • “Intolerable (unbearable) suffering”

29. The Netherlands • The law allows the medical review board to suspend prosecution of doctors who performed euthanasia when each of the following conditions is fulfilled: • the patient's suffering is unbearable with no prospect of improvement • the patient's request for euthanasia must be voluntary and persist over time (the request can not be granted when under the influence of others, psychological illness or drugs) • the patient must be fully aware of his/her condition, prospects and options • there must be consultation with at least one other independent doctor who needs to confirm the conditions mentioned above • the death must be carried out in a medically appropriate fashion by the doctor or patient, in which case the doctor must be present • the patient is at least 12 years old (patients between 12 and 16 years of age require the consent of their parents)

30. Patient Self-Determination Act of 1990 • Patients have right to formulate advance directives • Health care providers receiving federal funds under Medicare need to comply with regulations

31. Advance Directives • Patients have a right to make decisions about their health care • with their physician • may agree to a proposed treatment • choose among offered treatments, or • say no to a treatment.

32. Living Will • Instrument or legal document that describes treatments individual wishes or does not wish to receive should he or she become incapacitated and unable to communicate treatment decisions

33. Durable Power of Attorney • A legal device that permits one individual known as “principal” to give to another person “attorney-in-fact” authority to act on his or her behalf • Survives the incompetency of the principal • More general in scope than a living will

34. Surrogate Decision Making • A surrogate decision maker is an agent who acts on behalf of a patient who lacks the capacity to participate in a particular decision

35. Substituted Judgment • Form of surrogate decision-making where the surrogate attempts to establish what decision the patient would have made if that patient were competent to do so

36. Guardianship • Is a legal mechanism by which court declares a person incompetent and appoints a guardian

37. Health Care Proxy • A health care proxy allows a person to appoint a health care agent to make treatment decisions in event he or she becomes incompetent and is unable to make decisions for himself or herself

38. Georgia Advance Directive for Health Care (2007) • Replaced The Living Will and Durable Power of Attorney for Health Care • Allows an agent to be appointed to carry out health decisions • Allows choices about withholding or withdrawing life support • Allows appointment of a Guardian • Needs to be witnessed but not notarized

39. Futility of Treatment • Physician recognizes that effect of treatment will be of no benefit to the patient • Morally, the physician has a duty to inform the patient when there is little likelihood of success • The determination as to futility of medical care is a scientific decision

40. Withholding and Withdrawal of Treatment • Withholding of treatment is a decision not to initiate treatment or medical intervention for the patient. This is a decision often made when death is imminent and no hope of recovery • Withdrawal of treatment is a decision to discontinue treatment or medical interventions for the patient. When death is imminent and cannot be prevented by available treatment

41. Withholding or Withdrawing Treatment Should be Considered When • Patient is in a terminal condition and there is a reasonable expectation of imminent death • Patient is in a non-cognitive state with no reasonable possibility of regaining cognitive function, and/or • Restoration of cardiac function will last for a brief period

42. Removal of Life-Support Equipment • Although there may be a duty to provide life-sustaining equipment in immediate aftermath of cardiopulmonary arrest, there is no duty to continue its use once it becomes futile

43. Do-Not-Resuscitate Orders • DNRs are physician orders not to resuscitate a patient in the event of cardiac or respiratory arrest • Given when quality of life has been so diminished that “heroic” rescue methods are no longer in patient’s best interests • Must be written, signed and dated by the physician • Generally reflects the patient’s wishes (possibly, as indicated in a living will or other advance directive)