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Justin Chen Freedom to Die: The Medical Ethics of Overriding Patient Directives More than half of all deaths in America occur in the hospital. (1) Of those, 70% occur after a decision to forego life-sustaining treatment has been made. (1) Given these high numbers, it is crucial that certain disturbing ethical dilemmas be addressed, including the very real possibility that a patient receiving artificial life support might, for religious or personal reasons, object to the use of such treatment. The blurring of the line between life and death caused by the use of medical technology greatly complicates the question of whether the patient should be allowed to decide when and how to die, or whether this awesome power should instead rest in the hands of a paternalistic physician with a presumably better knowledge of the human body. At the heart of this dilemma lurks a complex ethical debate over the changing relationship of doctor and patient, and challenges the very purpose of medicine itself as an institution. Though such a lofty and abstract discussion lies far beyond the scope of this paper, the more specific question of the ethical permissibility for a doctor to override his or her patients� refusal of treatment does have definite judicial and ethical precedents. These considerations, along with a mature understanding of the doctor-patient code, ultimately suggest that autonomous human beings must be granted full rational choice in such philosophically difficult situations. I. Toward a Medical Ethic—The Theory Behind the Doctor Patient Relationship A seemingly logical place to begin a discussion of medical duty might be the American Medical Association (AMA), an organization that purports to be �the patient's advocate and the physician's voice.� (2) Yet their �New Principles of Medical Ethics,� most recently republished in June, 2001, contains only one provision with any mention of the doctor�s duties at all: �A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights�. (2) This is essentially a passive statement that places more emphasis on deference to the patient than on the physician�s actual task. As the noted conservative bioethicist Leon Kass has observed, the AMA�s guidelines �contain no statement of the end of medicine� and �nowhere define or delimit the goal being served.� (3) Along these same lines, the passivity of the AMA�s language seems to trivialize the physician�s specialized healing role. In his collection of essays entitled The Physician�s Covenant, William F. May writes that a �contract� like the one described by the AMA �does not rely on the pose of philanthropy or condescend as �charity.� It frankly presupposes that self-interest primarily governs people.� (4) Similarly, Kass writes that �too many doctors have acted like tradesmen; too few have taken the trouble to clarify and affirm what they as physicians profess.� (3) These statements both imply some deeper connection between doctor and patient that reaches beyond the narrow confines of technician-like healer and passive invalid. It is the �mysterious activity of healing and the crucial and incomparable interpersonal bonds of the healing relation� which, to Kass, make the practice of medicine such a sacred task. (3) If May and Kass are correct in their assessment, and there does exist some special unwritten covenant that elevates the doctor above the level of mere technician, it then remains to determine what exactly distinguishes or defines the physician�s duty. In other words, what exactly is it that the physician ought to �profess?� According to Kass, the only goal of medicine is �health�—that is, �the well-working of the organism as a whole.� (3) Similarly, according to the British Medical Association (BMA), �The primary goal of medicine is still seen as being to benefit patients by restoring or maintaining their health as far as possible.� (5) In both the AMA�s vow to �provid[e] competent medical care� and the BMA�s stress on �maintaining health� can be observed a conscious attempt to avoid citing the preservation of life as some sort of ultimate standard. Indeed, Kass argues, �Medicine has traditionally refused to make prolongation of life its goal, not only because the goal was finally unreachable, but also because it recognized that efforts in that direction often produced more harm than good—in pain and discomfort as well as anguish and anxiety." (3) The proper definition of physician involvement, then, appears to relate to the promotion of some larger, more holistic notion of �health,� and certainly goes beyond the mere repair of injury or prolonging of life. II. Judicial Precedent for Physician Duty The notion that the physician has some higher duty toward his patient is supported by rulings of the California Supreme Court. In the famous 1976 case, Tarasoff vs. the Regents of the University of California, the Court ruled that �when a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.� (6) The case itself revolved around the October 27, 1969 murder of Tatiana Tarasoff by Prosenjit Poddar. Tatiana�s father, Vitaly, alleged that two months earlier, Poddar had confided his intention to kill Tatiana to psychologist Lawrence Moore and was briefly detained, but was later released after Moore�s superior, Dr. Harvey Powelson, directed that no further action be taken to keep him in custody. Vitaly Tarasoff also alleged that no one had ever warned him of Poddar�s homicidal intentions. The court ruled in favor of Tarasoff, asserting that in situations such as the one faced by Moore and Powelson, the psychiatrist is required �to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.� (6) Furthermore, the court generalized its ruling by arguing, �The role of the psychiatrist, who is indeed a practitioner of medicine, and that of the psychologist who performs an allied function, are like that of the physician who must conform to the standards of the profession and who must often make diagnoses and predictions based upon such evaluations. Thus the judgment of the therapist in diagnosing emotional disorders and in predicting whether a patient presents a serious danger of violence is comparable to the judgment which doctors and professionals must regularly render under accepted rules of responsibility.� (6) On the court�s view, then, the special privileged relationship that medical professionals possess with their patients (as also theorized by Kass and May) brings additional responsibilities of disclosure and prevention. The court�s reasoning in the Tarasoff ruling is quite clear: practitioners of medicine cannot be treated as mere technicians who exchange their healing services for money. A special medical code exists that requires physicians, psychiatrists, and even psychologists to act in a manner that is not limited to providing �competent medical care.� court�s decision, then, appears to expand the proper extent of physician involvement. The balance of power between physician and patient and the need for an ethical code in the medical setting are central to the issue of the doctor�s ability to override the patient�s directives. Indeed, a number of courts have also acted in recent years to place a strong emphasis on increasing the physician�s responsibility toward his or her patient. In February, 1996, a Michigan jury awarded $16.5 million to a mother who sued a hospital that �refused to remove a ventilator from her daughter during a two-month coma.�1 Later that year the Supreme Court of Ohio ruled that the provision of emergency resuscitation to an 82-year-old patient who had a Do Not Resuscitate (DNR) order on his medical chart constituted battery since the DNR directive indicated an unwillingness to be revived by artificial means. (1) III. The Medical Community�s Role The medical community is certainly aware of the ethical issues involved in the decision to sustaining life against the patient�s wishes. An article published in the American Journal of Public Health reported that in a survey of 687 physicians and 759 nurses, �almost half (47%) of all respondents and fully 70% of the house officers reported that they had acted against their conscience in providing care to the terminally ill.� (8) These statistics were interpreted by the researchers to suggest that �many physicians and nurses were disturbed by the degree to which technological solutions influence care during the final days of a terminal illness and by the undertreatment of pain.� (7) Yet a survey of critical care physicians reported that 15 percent almost never withdrew ventilator support from dying patients who had requested to forgo life-sustaining treatment, and 26 percent believed there was a �moral difference between not initiating treatment with a ventilator and withdrawing one already in use.� (8) These data indicate that when confronted with the ethically troubling dilemma of artificially prolonging life against a patient�s wishes, a significant proportion of doctors prefer to satisfy their own consciences and avoid terminating care. A 1997 article in The New England Journal of Medicine (NEJM) entitled �Withdrawing Intensive Life-Sustaining Treatment — Recommendations for Compassionate Clinical Management� suggests that another possible reason for the continuation of unwanted treatment is �a lack of training among physicians and nurses in the clinical aspects of withdrawing intensive life support.� (9) The article goes on to argue that because of this lack, �physicians and nurses may continue aggressive therapy well beyond the point at which patients or families (or the health care professionals themselves) would prefer to stop.� (9) Thus, simple ignorance may cause physicians to breach their patients� trust. Certain medical professionals may also be motivated by a fear of participating in physician-assisted suicide. In the 1996 ruling of Dennis C. Vacco v. Timothy E. Quill, the Supreme Court upheld the constitutionality of a New York state criminal statute which stated that �a person who intentionally causes or aids another person to attempt or commit suicide is guilty of a felony.� (10) Yet the Court has also been extremely clear in its concurrent stance that �the distinction between assisting suicide and refusing lifesaving medical treatment [is] important, logical, and rational.� (10) That is, legally speaking, physicians should not be afraid that respecting a patient�s DNR directive result in a felony prosecution. Nevertheless, it is not inconceivable that some medical personnel would be influenced in their decision-making by such legal statutes that criminalize physician-assisted suicide. In general, then, it appears that medical professionals consistently decide against performing uncomfortable ethical operations, thereby disregarding the patient�s requests to forgo life-sustaining treatment. Yet such a situation runs exactly counter to the implied objectives of medicine—to promote the patient�s health. As the authors of the NEJM article argued, �Any intervention that the patient finds more burdensome than beneficial, given the overall goals of treatment, should be limited or eliminated.� (9) While this does not mean that the physician should only listen to the patient in deciding on a treatment, it does suggest that forcing artificial life-support treatments on unwilling recipients would be counter to the implied goals of medicine, and therefore could not be justified under current views of medical ethics. Physicians have even taken this argument one step farther by asserting that an advanced directive to limit care must be respected even when it is the medical treatment itself that induces complications requiring resuscitation. The authors of another 1997 NEJM article discussed just such a situation in which �an unfavorable response to medical treatment�is induced by the therapeutic effort itself�—also known as an �iatrogenic complication.� (11) A Harvard Medical School study found that �14% of [cardiac] arrests�followed an iatrogenic complication,� (12) making this issue a particularly important special case of the greater issue of ignoring patient directions. It could potentially be argued that because iatrogenic complications arise from the medical procedure itself, a physician is justified in attempting to rectify the situation and restore the patient to his or her former condition. Such a solution seems appropriate given the physician�s charge to �do no harm.� Yet the NEJM authors maintain that such a discussion is �nearsighted because it defines harm only from the physician's perspective�—that is, the principle of nonmaleficence ultimately cannot �establish that the benefits of attempting resuscitation outweigh the harm of doing so.� (11) Thus, the imposition of the physician�s will can be seen as a form of inflicting harm on the patient, and again, seems impermissible under a reasoned view of medical ethics. IV. Medical Paternalism: An Objection A potential objection to these arguments is an appeal to the notion of paternalism— that is, the conscious �interference with a person's freedom of action or freedom of information, or the deliberate dissemination of misinformation, where the alleged justification of interfering or misinforming is that it is for the good of the person who is interfered with or misinformed.� (12) Those who would invoke a policy of medical paternalism argue that the physician, who presumably possesses a much greater knowledge of health and the workings of the human body, ought to be granted the power to overrule the patient in certain situations. Certain hospital policies indeed appear to condone the use of paternalistic measures where appropriate. For instance, according to the Association of College Paramedics, unruly patients—whose behavior is often �fueled by alcohol intoxication or some other form of substance ingestion�—are often �not in rational control of their own conduct (albeit self-induced).� (13) As such, paramedics are instructed to �take reasonable care to prevent harm to the patient or others.� (13) In these and other instances, medical personnel are justified in using restraining force or other measures to control a situation (13)—all of which necessarily result in a short-term abridging of a patient�s freedoms. Like the psychiatrists in the Tarasoff case, medical personnel are charged with a duty to �take whatever other steps are reasonably necessary� when a �patient presents a serious danger of violence to another.� Some might use this precedent for paternalism to argue that medical personnel often can and do make decisions that overlook the desires of their patients. As such, a physician would be justified in purposely refusing to honor a DNR request or other evidence of a desire to forgo artificial life-saving techniques. Yet the adoption of paternalistic policies, while certainly appropriate for an intoxicated patient who represents a danger to himself and others, is much less clearly permissible when applied to a completely rational individual who freely objects to the use of certain medical techniques for personal or religious reasons. As Alan Goldman has argued in his essay, �The Refutation of Medical Paternalism,� paternalistic measures �may be invoked when either the individual in question, or any rational person with adequate knowledge of the situation, would choose a certain course of conduct, and yet this course is not taken by the individual solely because of ignorance, carelessness, fear, depression, or other uncontroversially irrational motives.� (14) This is clearly not the case for a conscientious objector to the use of artificially life-sustaining medical technologies who expresses informed, considered, and rational thought. Thus, paternalism cannot be invoked in this situation. Even without appealing to the ethical problems inherent to ignoring the patient�s wishes, one could simply point to the growing wave of negative sentiment regarding the use of paternalistic medical policies in general. Goldman writes, �The fundamentally faulty premise in the argument for paternalistic role differentiation for doctors is that which assumes that health or prolonged life must take absolute priority in the patient�s value orderings.� (14) To Goldman and the many physicians who increasingly share his view, the physician should not maintain the simplistic view that the prolonging of life is an end unto itself. Indeed, though much of medical technology and research has trended in this direction during the past century, certain medical ethicists view the simple elongation of the human lifespan as a �false goal.� (3) And with the recent surge of attention paid to patients� rights, as well as the liberalization of traditional views on death and dying, a paternalistic treatment of the doctor patient relationship, especially in a borderline case such as the DNR directive, is certainly much less tolerable. Indeed, as early as 1976, a NEJM article expressed the relatively progressive view that DNR orders are appropriate if the disease cannot be reversed, the patient�s physiological status is irreparable, and death is imminent, �in the sense that in the ordinary course of events, death probably will occur within a period not exceeding two weeks.�� (15) V. Conclusions Rapid advances in medical technology have created situations in which the meaning of life has become blurred, and traditional conceptions of medical ethics have been challenged. As Kass put it, �When [medicine�s] powers were fewer, its purpose was clearer.� (3) When a plea for the �dignity of death� is invoked, should the physician adopt a paternalistic role and use all available life-support technology, despite his patient�s wishes? Or should the doctor instead grant his patient the right to die in whatever manner s/he sees fit? The latter of these two options is undoubtedly ethically sounder. Because the patient trusts the physician to act in his best interests, it would be ethically unsound to disregard the patient�s request and disrupt this fragile and vulnerable relationship. The decision whether to override a DNR directive is one in which the sacred trust between doctor and patient is at stake. Though statistics have indicated that a prominent percentage of physicians are still unwilling to uphold their end of this privileged relationship,� (8) judicial and ethical considerations strongly suggest that the proper interpretation of the doctor-patient code requires that the patient�s requests be honored. As Kass has put it, perhaps �a true reverence for life might include permitting it to end, free from further assaults on life�s sanctity committed in its name.� (3)
Sources Cited 1. Rodriguez, Kellen F. �Suing Health Care Providers for Saving Lives.� The Journal of Legal Medicine (20:1). March, 1999. 2. �Newly Adopted Principles of Medical Ethics.� American Medical Association. www.ama.org 3. Kass, Leon R. Toward a More Natural Science. The Free Press (Simon and Schuster, Inc.). New York, NY. 1985. 4. May, William F. The Physician�s Covenant. Westminster John Knox Press. Louisville, Kentucky. 2000. 5. �The primary goal of medicine.� British Medical Association. www.bma.org.uk 6. Vitaly Tarasoff, et al., v. The Regents of the University of California, et al. Supreme Court of California. 131 Cal. Rptr. 14. July 1, 1976. 7. Solomon, M.Z. et al. �Decisions near the end of life: professional views on life-sustaining treatments.� American Journal of Public Health (83:1). 1993. 8. Bedell, S.E. et al. �Incidence and characteristics of preventable iatrogenic cardiac arrests.� Journal of the American Medical Association. (21:28). June 5, 1991. 9. Brody, Howard et al. �Withdrawing Intensive Life-Sustaining Treatment—Recommendations for Compassionate Clinical Management.� New England Journal of Medicine. (336:9). February 27, 1997 10. Dennis C. Vacco, Attorney General of New York, et al. v. Timothy E. Quill et al. Supreme Court of the United States. 1997 U.S. Lexis 4038. January 8, 1997. 11. Casarett, David et al. �Overriding a Patient's Refusal of Treatment after an Iatrogenic Complication.� New England Journal of Medicine. (336:26). June 26, 1997. 12. Buchanan, A. �Medical Paternalism.� Ibid. 13. Massing, Barry. �Abuse Of Patients & Abusive Patients.� ACP Newsletter. Spring, 2001. www.collegeofparamedics.org 14. Goldman, Alan. �The Refutation of Medical Paternalism.� Ethical Issues in Modern Medicine (5th Ed.). Ed: John D. Arras and Bonnie Steinbock. Mayfield Publishing Company. 1999. 15. President�s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Deciding to Forego Life Sustaining Treatment. U.S. Government Printing Office, Washington, D.C. 1983. |