Transcript Bioethics & the Law A (Very) Brief Introduction

Bioethics & the Law
A (Very) Brief Introduction
Clayton L. Thomason, J.D., M.Div.
Asst. Professor, Dept. of Family Practice & Center for Ethics
College of Human Medicine
Adjunct Professor, MSU College of Law
Michigan State University
[email protected]
http://www.msu.edu/~thomaso5
American Legal System
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Statutory Law
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Common Law (Case Law)
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Promulgated by legislatures
Offers positivistic rules
Judges seek to resolve conflicts in specific cases
Through adversarial system
Principles and doctrines develop over time
Administrative Law
Criminal/Civil Law
State/Federal Law
Constitutional Law
Similarities between Productive
Moral/Legal Conversation . . .
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Includes people of diverse
backgrounds (personal and
professional)
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Legal Process of Discovery, expert
witnesses, evidence
Lays as many ethical considerations as
possible on the table
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Litigation = Adversarial System seeks truth
by hearing disparate perspectives
Cf. Brody H, “Ethics, Virtue & Professionalism: An
Overview,” Introductory Lecture, HM-546, 2003
Similarities between Productive
Moral/Legal Conversation . . .
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Ethical considerations are critically
weighed for pertinence to case at hand
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Often reason by analogy: have we been
successful with similar cases in past?
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Legal principles applied to facts of case
Legal Precedent = reasoning by analogy
Appeals to rules and principles (e.g.,
patient autonomy) are tools of inquiry, not
rigid formulas
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But precedent not blindly followed, can change
Similarities between Productive
Moral/Legal Conversation
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Basic moral value, respect for others
modeled in process as well as in outcome
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Ideas others put on table are critically
challenged and questioned
Questioning is done without suggesting
disrespect for the person who holds differing
moral views
The person who disagrees with you is your
best resource in discovering moral truth
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= Basis of Adversarial System, to seek “truth”
Dr. Brody’s Two Questions:
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What ought to be done in this situation, all
things considered?
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“Snapshot ethics”
Main focus of HM 546 ethics module
Focus of Legal Standards, Rules, Case Law
How ought I live a life of moral excellence in
my chosen profession?
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“Video ethics”
Main focus of professionalism curriculum
Law does not generally seek to address – leaves
to profession
Similarities Between
Law & Bioethics
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Both provide guidance on what physicians
may and may not do
The law may reflect an ethical consensus
in society
Court opinions offer reasons for decisions,
provide analysis of pertinent issues
Clinicians, ethics committees should be
aware of what law says about issues in
clinical ethics
But . . .
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The law cannot offer definitive answers to
every ethical dilemma in medicine.
Knowing “what the law is ” does not save
us from doing the hard work of moral
reflection & discourse.
Law & Ethics Differ
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Law sets only minimum standards of conduct
Law explicitly grants physicians discretion in
clinical decision making
Law may provide no clear action guides in some
clinical ethical situations
Law and ethics may directly conflict
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Actions permitted by law may be ethically
controversial
While actions prohibited by law may be regarded as
ethically defensible by many people
Authority of law based on police power of state
Law in Clinical Ethics
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Try to resolve ethical conflicts as close to
the bedside as possible.
Courts are not optimally suited to make
medical decisions.
Courts are the tribunal of last resort for
resolving ethical conflicts.
In clinical ethics, over-reliance on “what’s
legal” may undermine careful, complete,
and subtle ethical analysis.
cf., De Ville K. “What does the law say?” -- Law, ethics, and
medical decision making. West J Med 1994;160:478-480.
Resolve ethical conflicts . . .
as close to the bedside
as possible.
An Example:
Terri Schiavo
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41 y/o woman in Persistent Vegetative State
(PVS) since 1990
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When heart stopped temporarily, result of potassium
imbalance
Breathed on own, but could not swallow
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Feeding tube needed for nutrition/hydration
Husband battled her parents over whether she
should be allowed to die
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As he asserted she would have wanted
Drs. Testifying on his behalf held out no hope for
recovery
Parents maintained that Terri could be helped by
therapy
Diagnosis of Persistent
Vegetative State
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Vegetative State
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No cortical brain function, but preserved brainstem
function (unlike “brain death”)
No purposeful activity, response to verbal commands
No experience of Pain
Dx by experienced neurologist
Persistent Vegetative State (PVS)
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VS lasting > 1 month
Prognosis of recovery of consciousness approaches
zero % after 3 months
Mean survival = 2-5 years
Approx 10K - 25K adults and 4-10K children in PVS
See Lo, ch. 20
Definition of PVS
in Florida Statute
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Florida Statue 765.101:
Persistent vegetative state means a
“permanent and irreversible condition of
unconsciousness in which there is:
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(a) The absence of voluntary action or
cognitive behavior of ANY kind.
(b) An inability to communicate or interact
purposefully with the environment.”
Procedural History . . .
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1998-Michael petitions guardianship court to
authorize withdrawal of life-prolonging
procedures. After trial, order so authorized
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“clear & convincing evidence” of PVS
Affirmed on appeal to Fla 2d Dist.
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In re Guardianship of Schiavo, 789 So. 2d 348 (Fla. 2001)
Schindlers filed 4 procedural appeals
Trial Ct. order upheld, tube removed
Oct. 2003-FL Legislature enacts “Terri’s Law”
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chapter 2003-418
Gov. Bush signed, then issued executive order
replacing tube
. . . Procedural History . . .
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Michael files for declaratory judgment in Circuit
Ct, which ruled in his favor
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Sept. 23, 2004-FL Supreme Court declares law
unconstitutional
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2d Dist Ct of Appeal certified to FL S. Ct.
Violation of separation of powers
Affirms trial court’s order
Oct. 4, 2004- Gov. Bush files appeal
Jan. 24, 2005- U.S. Supreme Ct. refuses to hear
Bush appeal > case goes back to Circuit Ct.
2/25/05- Judge Greer orders tube removed on
3/18/05
. .. .Procedural History
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3/16/05- Fl 2d Appellate Ct. denies stay of order
3/18/05 – Feeding tube removed
3/19/05- Emergency appeal to US Supreme Ct.
– cert. denied.
3/21/05- Pres. Bush signs federal bill into law
after passage by US House/Senate
Fed. Dist., 11th Cir, US S. Ct. all reject appeals
3/31/05-Terri Schiavo dies in a Florida hospice.
http://news.findlaw.com/legalnews/lit/schiavo/index.html
What lessons can be learned?
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“Hard cases make bad law”
Examine conflicts between law and clinical
ethics
Terri had no advance directive to guide
decisions about her care
Clinical decisions about care are best made as
close to the bedside as possible
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Court decisions should be last resort
Legislative resolution? Executive intervention?
Families need to have “caring conversations”
about end of life wishes
Other Significant Cases on
Life-Sustaining Interventions
(see Lo, ch. 23) . ..
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In the Matter of Quinlan, Supreme Court of
New Jersey (1976) 70 N.J. 10, 355 A. 2d.
647
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22 y/o woman in PVS; father asked court to
allow ventilator to be withdrawn.
New Jersey’s Supreme Court recognizes that
a patient’s constitutional right to privacy
includes a right to terminate medical
treatment.
. . . Other Cases . . .
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Cruzan v. Director, MDH, U.S. Supreme Court
497 U.S. 261 (1990)
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33 y/o in PVS, had said she “didn’t want to live . . . As
a vegetable”; parents requested tube feedings
removed.
Chief Justice Rehnquist writes for the Supreme
Court’s majority opinion, holding that the Constitution
gives “a competent person a constitutionally protected
right to refuse lifesaving hydration and nutrition,”
but “a State may apply a clear and convincing
evidence standard [of the patient’s wishes] in
proceedings where a guardian seeks to discontinue
nutrition and hydration of a person diagnosed to be in
a persistent vegetative state.”
. . . Other Cases . . .
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Conservatorship of Wendland, Calif. Supreme
Court (Aug. 9, 2001).
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California case holding that, under the State’s law, a
conservator may not withhold artificial nutrition and
hydration “from a conscious conservatee who is not
terminally ill, comatose, or in a persistent vegetative
state, and who has not left formal instructions for
health care or appointed an agent or surrogate for
health care decisions...absent clear and convincing
evidence the conservator’s decision is in accordance
with either the conservatee’s own wishes or best
interest.”
. . . Other Cases
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Brophy v. New England Sinai Hospital,
Supreme Judicial Court of Massachusetts
(1986) 398 Mass. 417; 497 N.E.2d 626
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Massachusetts case holding that the “State’s
interest in the preservation of life does not
overcome [the patient’s] right to discontinue
treatment,” and that such a position is not
contrary to the “State’s interest in the
prevention of suicide.”
Some Legal Issues
in HM-546 . . .
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Week 1: Introduction to Ethics & Law
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Week 2: Competent Patient decisions
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Lo, Chs. 1, 2, also 23
Legal standards re: best interests, decision-making
capacity, refusal of treatment, PAS, active euthanasia
See Lo, ch. 4, 10, 11, 19
Week 3: Decisions for Incompetent Patients
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Legal standards re: brain death, persistent vegetative
state, coma, state’s interest in preserving life,
surrogate decision-making,artificial nutrition &
hydration, Michigan law
Especially Lo, chs. 8, 9, 12, 13, 20, 21, 23
. . . Legal Issues in HM-546 . . .
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Week 4: Children & Infants
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Legal standards re: non-discrimination against the
handicapped; best interest of infants, family, & society;
state’s interest in decision-making
See Lo, ch. 16
Week 5: Reproductive Issues
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Role of civil discourse
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Legal/ethical status of fetus, abortion laws (Lo, Ch. 13)
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(see Matthews-Green, “Subversive Civility,” from Week 1)
Actions permitted by law may be ethically controversial
Week 6: Flow of Medical Information
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Legal/ethical standards for truth-telling, informed
consent, confidentiality
See Lo, ch. 3, 5, 6, 34, 38
. . . Legal Issues in HM-546
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Week 7: Genetics
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Role of law in regulating genetic technologies?
Legal standards re: genetic privacy, procreative
liberty, health care justice, obligations of parties
See Lo, ch. 42
Week 8: Research Issues, Justice and Conflicts
of Interest
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Legal standards for protections of human subjects
Legal/ethical definitions of conflict of interest
See Lo, ch.28, 29, 30, 32, 33
Further Resources
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Shapiro MH, Spece RG, Dresser R, Clayton EW. Bioethics and Law:
Cases, Materials and Problems (2d ed.). St. Paul, MN, West Publ.
Co., 2003.
Menikoff J. Law and Bioethics: An Introduction. Washington, DC,
Georgetown Univ. Press, 2001.
Orentlicher D. Matters of Life and Death: Making Moral Theory Work
in Medical Ethics and the Law. Princeton, NJ, Princeton Univ. Press,
2001.
Rich B. Strange Bedfellows: How Medical Jurisprudence has
Influenced Medical Ethics and Medical Practice. New York, NY,
Kluwer Academic/Plenum Publ., 2001.
Meisel A. Legal myths about terminating life support. Arch Int Med.
1991;151:1497-1502.
Meisel A, Kuczewski M. Legal and ethical myths about informed
consent. Arch Int Med. 1996;156:2521-2526.
Harrington JA. Art or science? Understanding medicine and the
common law. Health L J. 2001;9:129-150.