Legal system is well-set to handle end-of-life decisions
by Lance Tibbles

March 30, 2005

A majority of us will die when medical treatment could have kept our bodies alive for a while longer.

The Terri Schiavo matter involves difficult decisions that families now make daily. These decisions are emotional, but the legal and ethical issues involved are well-settled. This fact should not be obscured by grandstanding groups, a decade of state court decisions, a federal statute hastily enacted in the middle of the night applying only to a single individual, decisions by three levels of federal courts in rapid succession or a governor threatening to take custody of an incompetent individual to compel medical treatment.

Let’s put this case in its bioethics framework. Biological technologies fragment life processes, often making classification systems inadequate for describing, explaining and justifying actions. New reproductive techniques separate genetics from gestation; a fertilized ovum from one woman is implanted in another. Who can be called the mother?

New reproductive technologies produce entities in novel circumstances. A cryo-preserved embryo is a life in limbo. Siblings conceived at the same moment can be born decades apart. Life support systems can maintain cardiovascular function in the absence of neurological capacity. Technology separates life as an organism from life as a functioning person. A permanently unconscious body lives but the functioning person is gone. The familiar categories – alive, dead, sick – do not fit what we see.

But despite these conceptual difficulties, the legal rules for decision-making for incompetent individuals, including those who are permanently unconscious, are relatively clear. Competent adults always have had the right to refuse medical treatment, including life-sustaining treatment. It is generally agreed that medical treatment includes not only antibiotics, resuscitation, surgery, radiation, and chemotherapy, but also medically administered oxygen, hydration and nutrition for those whose illness or injury prevents them from breathing, drinking or eating.

Incompetent adults do not lose their right to self-determination; they remain entitled to have their prior decisions about medical care respected. The process for determining what an incompetent individual would want is called substituted judgment. To protect this right, most states have enacted procedures allowing competent adults to execute advance directives – living will sand durable powers of attorney for health care – stating their wishes and appointing a person to act on their behalf when they are no longer competent to do so. Even if an incompetent individual has not executed an advance directive and it is also impossible to ascertain the patient’s desires, then the treatment decision should be based on the patient’s best interests – what a reasonable person most likely would want in the same circumstance.

Although Terri Schiavo had not executed an advance directive, Florida statues set out the procedure for such cases. Because of the disagreement about continuing medical treatment, the husband and the parents agreed that the state court should make the substituted-judgment analysis. Using the required standard of clear and convincing evidence, the court found Schiavo to be in a persistent vegetative state and that if she could make a decision, she would refuse further life-prolonging procedures. A state appellate court affirmed this decision and the Florida Supreme Court declined to review it.

The Florida court did not consider what Schiavo’s husband wanted nor what the parents wanted. The court only decided what she would want.

None of this is new. The common-law right to refuse medical treatment is as old as our nation. Most ethicists, and I think most people, now agree on the following points:

• There is no moral difference between a decision to withhold treatment and a decision to withdraw treatment previously begun.
• A patient’s decision to withhold or withdraw life-sustaining treatment is not active euthanasia because there is no intent to kill and the patient’s death is the result of the injury or illness running its natural course, e.g., refusing surgery, chemotherapy, and radiation for advanced cancer.
• There is no moral difference between withholding or withdrawing a respirator and withholding or stopping medically administered nutrition and hydration. Advance-directive statutes in most states, including Ohio, provide for refusing medically administered nutrition.

These difficult near-the-end-of-life decisions usually take place within the privacy of the family. Sometimes facing these tragic circumstances brings families together, but sometimes it tears them apart. The individual’s clear expression of wishes to family members in advance often can ease family disagreements and feelings of guilt.

These are old lessons. They may need to be relearned.

Most of us will be involved in making decisions about stopping life-sustaining treatment for another family member. We can rely on existing legal and ethical principles. Federal intervention is not needed.

This editorial appeared in the Forum section of the Columbus Dispatch, March 30, 2005.