A New Framework for Decisions on Death and Dying

1. A New Framework for Decisions on Death and Dying Dr. Jacquelyn A.K. Kegley California State University U.S.A.

2. Some Basic Rights • The right to life- a natural/human right; a claim right? Is it absolute? • Definition of “life”- quality, quantity • Right to free choice- informed consent, intentionality, proxy.- who can make decisions for others? • Beneficence- in the “best interests” of another- who can make this choice?

3. Euthanasia- the Concept • Physician acts on behalf of the patient either in accordance with patient’s wishes or paternalistically. • Death- intended. • “Passive”- letting die; nature takes course; omission. • “Active”- using some means to hasten or cause death.

4. Physician-Assisted Suicide • The act is chosen and performed by the person, assisted by the physician. • Provides a prescription.

5. Physician-Assisted Suicide • Oregon Law- 1997- six month prognosis verified by 2nd opinion; request in writing; repeat 15 days; “rational”; not depressed; can ingest medicine.

6. The Legal Arguments • Arguments were presented by various groups to the Supreme Court when the issue was presented to them.

7. Philosophers’ Amicus Brief • Every competent person has right to make “momentous” personal decisions which invoke fundamental religious/philosophical convictions about life and its value for self.” • State CAN protect against impulsive, uninformed decisions through reasonable demonstration.

8. COALITION OF HOSPICE PROFESSIONALS BRIEF • Removing ban on PAS will enhance the opportunity for advanced hospice care for all because regulations of PAS would mandate that all palliative measures be exhausted as a condition precedent to assisted suicide. • “Terminal sedation”- no evidence not painful.

9. Legal Precedents • Liberty Right- Decisions • Casey v U.S.- “the heart of liberty is the right to define one’s own concept of existence, of the meaning of the universe and of the mystery of human life.” • W.Va. v Bd. Ed.- fixed constitutional constellation- state cannot prescribe what shall be orthodox-

10. RIGHT TO WITHDRAW TREATMENT • Karen Quinlan (1976)-”right of terminally ill (or surrogates) to refuse particularly “burdensome” treatment. • Cruzan v. Dept. Missouri Health (1990)- implied that state must allow individuals to make these decisions through advance directives or proxy. • Cruzan- can withdraw artificial nutrition and hydration.

11. Right to Refuse Treatment • McKay v. Bergstredt (Nev. 1990)- young severe, spinal cord injury; quadriplegic, ventilator dependent. “Competent patient refusing/with-drawing- must be examined by two non-attending physicians to determine mental competence; if understands prognosis & treatment options; free of coercion or pressure in making decision.

12. Arguments for PAS • Basic liberty right of persons- Casey v. U.S.- right to define one’s own concept of existence; meaning. • Momentous personal decision.

13. Utilitarian- Suffering The Key • Emphasis is on relief of suffering and the principle of utility- to increase the amount of happiness or to decrease the amount of misery. • The policy of killing, at their own request, hopelessly ill patients who are suffering great pain would decrease the amount of misery in the world. • Therefore such a social policy is morally right. • It is also correct if it promotes the best interests of everyone.

14. Arguments Against PAS • Annihilates basis for autonomy-kills SUBJECT. • Autonomy as only good- trumps all others. • Assistance violates physician’s intrinsic duty to promote health.

15. Slippery Slope Argument • Impossible to limit a right to assisted suicide in an acceptable way, once the right is recognized. • Contra- State can override a right to protect person from irrevocable mistake; procedures already established in McKay v Berstedt

16. New Framework Would • Focus on virtues of compassion & respectfulness. • Person not just as rational. • Physician to assist –health and life “for something.” • Suffering as broader concept.

17. False Cartesian Medicine • “Lived body” not “machine.” • Suffering via body, via relations with others and via powers of the self. • Frustration of self’s goals, plans and will.

18. Fours Levels-Self/Suffering • Embodied action- access, movement, action in world. • Intersubjective life- roles and responsibilities, relations. • Will- lifestyle, plan, goals. • Universal- meaning of life.

19. Pain- Reduction of Self • More attention to pain and to palliative measures. • Must see pain in relation to the total personality of the individual in question to really address the problem.

20. Reductionistic Ethics • Exclusive focus on rational agent; autonomy; negative rights such as informed consent and right to refuse treatment. • Compassion not in picture.

21. Problems with Autonomy • Ignores persons as social beings whose actions take place in a complex physical, social environment. • Ignores power relations and vulnerability and dependence.

22. Autonomy-Obey Doctor • Conflict with what “medicine deems correct.”-negative right. • Dax Case- though deemed competent and rational- challenged-ignored full range of his suffering.

23. Human self-as relational • Self-consciousness dependent on social contrast; others. • Knowledge of external dependent on others. • Importance of ethnic, cultural, gender perspectives on health.

24. Self- temporal & historical • Person as future-oriented; growth, change, history. • Self as “narrative.”-Process of self interpretation; other-interpretation. • As “text” there is no closure.

25. Objective & Technological • Conflict- autonomy suggests that you are a “director of your own death” and yet “death” is viewed by medicine as that to be fought with every tool. • Person gets lost in this battle.

26. Move to New Viewpoint • Physician as nature’s assistant; medicine as “art.” • Virtue-based ethics . • Humility- recognize limits. • Prudence- practical wisdom.

27. Compassion as a virtue • Compassion includes rational. • Three beliefs: (1) possibilities of self similar to those of the sufferer; (2)suffering is serious;(3) suffering not caused by the sufferer’s own actions.

28. Respect as a Key Virtue • Respect is based on a common human vulnerability and dependency. • “All of us, as humans, have the capacity to suffer and in this sense gain our equality.”