End Of Life

END OF LIFE ISSUES FROM A LEGAL AND

BIOETHICS PERSPECTIVE

PAUL D. FRIEDMAN, M.A., J.D.300 W. Clarendon, Ste. 400

Phoenix, Arizona 85013(602) 252-8888

[email protected] ©Copyright 2005Paul D. Friedman, M.A., J.D.

American Associationof Critical-Care Nurses

OVERVIEW OF DYING IN AMERICA

©Copyright 2005Paul D. Friedman, M.A., J.D.

Life-Ending Acts:Refusal of Life SupportPhysician-Assisted SuicideEuthanasiaRefusal of Hydration & NutritionPalliative Care

STATISTICS ON DYINGIN AMERICA


2.5 Million Americans Died In 2005More Americans Died From Chronic Illness Than Any Other Cause

Heart DiseaseCancerStroke EmphysemaDementia

Mean Life Expectancy >50% In Past Century54+% Die In Hospitals19+% Die In Nursing Homes25+% Die At Home

STATISTICS ON DYINGIN AMERICA


30% Of Medicare Expenditures Is Spent For Caring For Patients In The Final 6 Months Of Life

40% Of That 30% Covers Care For Patients In The Last Month Of Life

Up To 65% Of ICU Deaths Directly Result From Withdrawal Of Life Support TreatmentSome Life-Sustaining Treatment Is Withdrawn In 74% Of ICU Deaths

AMERICAN ATTITUDESREGARDING DYING


Medicine Is Based Upon A Scientific ParadigmTechnology Is Imperative To Decrease Morbidity and Increase Mortality

We Culturally Deny DeathDenial Is Recognized As The First Of The 5 Stages Of Death

DenialAngerBargainingDepressionAcceptance

It Has Become Socially More Acceptable To Die In An Institution Than At Home

AUTONOMY


Ethical Principles Support Autonomy (Dignity, Respect, Self-Determination)

AutonomyBeneficenceNon-MaleficenceJustice

Legal Concepts Support AutonomyInformed Consent

Canterbury v. Spence, 464 F.2d 772 (D.C. 1972).Confidentiality

HIPAA

AUTONOMY


Canterbury v. Spence, 464 F.2d 772 (D.C. 1972).19 Year Old Patient Submitted To Back Surgery Due To Severe Pain After Conservative TreatmentPhysician Recommended A Laminectomy For A Suspected Ruptured DiscThe Day After Surgery, The Patient Fell While Trying To Void And Was Left A ParaplegicCourt Of Appeals Held That The Physician Owed A Duty To Obtain Informed Consent

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body” p. 779“True concept to what happens to one’s self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant uponeach” p. 779

REFUSAL OF LIFE-SUSTAINING TREATMENT


Preferential Status Of Consent:Expressed Wishes Of Patient

Advanced DirectivesLiving Will

http://www.azag.gov/seniors/life_care/LivingWill.pdfDurable Healthcare Power Of Attorney

http://www.azag.gov/seniors/life_care/POA_HealthCare.pdfPre-Hospital Medical Directive (“DNR”)

http://www.azag.gov/seniors/life_care/DNR.pdfDurable Mental Healthcare Power Of Attorney

http://www.azag.gov/seniors/life_care/POA_MentalHealthCare.pdf

Substituted JudgmentBest Interests Of The Patient


LivingWillPage 1


LivingWillPage 2


Durable Health CarePower of AttorneyPage 1


DurableHealth Care Power of AttorneyPage 2


Durable Health CarePower of AttorneyPage 3


Durable Health CarePower ofAttorneyPage 4


DNR

ETHICAL IMPLICATIONS OF REFUSAL OF LIFE-SUSTAINING TREATMENT


Is There A Difference Between Withholding Or Withdrawing Treatment?

There Is Ethical Equality to Have An Act Of Omission versus an Act of Commission

Can A Patient Refuse Hydration And Nutrition?A Patient Has A Right To Refuse Hydration And Nutrition

Living WillConstitutional Right To Refuse Life-Sustaining Treatment

Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841 (1990).

CONSTITUTIONAL RIGHT TO REFUSE

LIFE-SUSTAINING TREATMENT


Cruzan v. Missouri Department of HealthNancy Cruzan Sustained Severe Injuries In An Automobile Accident And “Lived” In A Persistent Vegetative StateNancy Cruzan’s Parents Sought Termination Of Nutrition And HydrationNancy Cruzan Told Her Roommate That She Would Not Want Nutrition And Hydration If She Was Less Than Halfway Normal The United States Supreme Court Held A Patient Has A Constitutional Right To Refuse Life-Sustaining Treatment

“A competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment.” p. 262The State May Require Clear And Convincing Evidence Of “Substituted Judgment”. p. 263

SURROGATE’S RIGHT TO REFUSE LIFE-SUSTAINING TREATMENT


Can A Surrogate Refuse Or Withdraw Life-Sustaining Treatment Utilizing “Best Interests”?

In Re Quinlan, 70 N.J. 10, 325 A.2d 647 (1976).Karen Ann Quinlan Was A 22 Year Old Who Suffered Anoxia For At Least Two 15 Minute PeriodsShe Was Found To Be Comatose With DecortificationShe Was Placed On A RespiratorHer Father Sought To Take Her Off The RespiratorHer Treating Physicians Argued The Standard Of Care Was To Keep Her On The RespiratorThe New Jersey Supreme Court determined That Life-Sustaining Treatment Could Be Refused If It Was In The “Best Interest” Of The Patient. ps. 41-42

SURROGATE’S RIGHT TO REFUSE LIFE-SUSTAINING TREATMENT


Can A Surrogate Refuse Or Withdraw Life-Sustaining Treatment Utilizing “Substituted Judgment” Or “Best Interests”?

A.R.S. § 36-3231


A.R.S. §36-3231

A CONTEMPORARY ETHICAL DILEMNA RE: REFUSAL OF LIFE-SUSTAINING TREATMENT


THERESA SCHIAVO



THERESA SCHIAVO

12/03/63 Terri Schindler (Schiavo) was born11/10/84 Terry Schiavo married Michael Schiavo02/25/90 Terry Schiavo suffered a cardiac arrest

involving brain damage from anoxia06/18/90 Court appointed Michael Schiavo as the

Terri’s Guardian without objection from the Schindlers

A CONTEMPORARY ETHICAL DILEMNA RE: REFUSAL OF LIFE-

SUSTAINING TREATMENT


THERESA SCHIAVO (continued)08/92 Terri Schiavo received $250,000 in an

out-of-court settlement with a physician for alleged malpractice

Does not take into account attorneys’ fees and costs

11/02 A jury returned a verdict in excess of $1,000,000

After attorneys’ fees and costs, a trust fund is set up with $750,000 for medical careMichael Schiavo receives $300,000 for loss of consortium



THERESA SCHIAVO (continued)

02/93 Michael Schiavo and the Schindlers had a falling out over the course of therapy

07/93 Schindlers attempted to have Michael Schiavo removed as Terri’s Guardian

03/94 Guardian Ad Litem reports that Michael Schiavo had acted appropriately




05/98 Michael Schiavo filed a petition with the Court to have the PEG tube removed

Schindlers opposed the petitionCourt appointed a second Guardian Ad Litem

12/98 Second Guardian Ad Litem files his reportFound Terri was in a persistent vegetative stateQuestioned the motivation of Michael Schiavo as someone who would inherent the res of the estate

02/00 After a trial, Judge determined Terri would have wanted the PEG tube removed and orders it removed




03/00 Court denied Schindler’s petition to have a swallow test performed

Limited the Schindler’s visitation and barred them from photographing TerriOrdered a Stay until all appeals are concluded

01/01 Florida Court of Appeals denies the Schindlers’appeal

04/01 Florida Supreme Court denied to hear the Schindlers’ appeal




THERESA SCHIAVO (continued)04/20/01 Federal District Court granted stay until an

exhaustion of all appeals04/23/01 US Supreme Court refused to hear the appeal04/24/01 PEG tube was removed04/26/01 Schindlers filed for a new trial based on “newly

discovered” evidence that Michael Schiavo lied about Terri’s wishes

Court denied the Motion04/26/01 Schindlers file a civil lawsuit alleging Michael

Schindler committed perjuryNew Judge ordered the PEG tube be reinserted




10/03/01 Florida Court of Appeals ordered an indefinite stay in removing the PEG tube

10/17/01 Florida Court of Appeals ordered 5 doctors examine Terri Schiavo

2 doctors chosen by Michael Schiavo2 doctors chosen by the Schindlers1 doctor appointed by the Court

10/22/02 Court had a 2 week trial to determine Terri’s medical status



THERESA SCHIAVO (continued)11/15/02 Schindlers filed a motion to have Michael Schiavo

removed as GuardianAlleged he caused her condition through abuse

11/22/02 Judge denied the Schindlers’ motion to remove Michael Schiavo and ordered the PEG tube removed

12/13/02 Judge ordered a Stay on the PEG tube removal until the Court of Appeals ruled

06/06/03 Florida Court of Appeals affirmed the Trial Court decision and ordered removal of the PEG tube

08/22/03 Florida Supreme Court refuses to hear the appeal




08/30/03 Schindlers filed a federal lawsuit10/07/03 Florida Governor Jeb Bush filed a federal brief in

support of the Schindlers lawsuit10/15/03 PEG tube was removed for the second time10/20/03 Florida Legislature passed “Terri’s Law” that

allowed the Governor to issue a one-time stay10/21/03 Florida Governor Jeb Bush issued an Executive

Order to reinsert the PEG tube10/21/03 PEG tube is reinserted for the second time




THERESA SCHIAVO (continued)10/28/03 President George W. Bush praises the way Jeb

Bush handled this case




10/29/03 Michael Schiavo filed a Motion to have “Terri’s Law” found unconstitutional

10/31/03 Third Guardian Ad Litem was appointedGuardian Ad Litem had a medical and law degree and is a public health professor

11/04/03 Governor Bush requested Schiavo’s Motion to have “Terri’s Law” found unconstitutional be dismissed

11/08/03 Judge denied Governor Bush’s request11/10/03 Governor Bush appeals the denial




12/01/03 Third Guardian Ad Litem reported that Terri was in a persistent vegetative state

03/20/04 Pope John Paul II took a “Sanctity of Life” position when he addressed the World Federation of Catholic Medical Associations and Pontifical Academy for Life Congress on "Life-Sustaining Treatments and Vegetative State: Scientific Advances and Ethical Dilemmas."

http://www.vatican.va/holy_father/john_paul_ii/speeches/2004/march/documents/hf_jp-ii_spe_20040320_congress-fiamc_en.html




05/06/04 Court found that “Terri’s Law” was unconstitutional06/01/04 Florida Court of Appeals sent the case directly

to the Florida Supreme Court07/19/04 Schindlers filed a motion that it would violate

Terri’s free exercise of religious beliefs based upon Pope John Paul II’s speech

09/23/04 Florida Supreme Court unanimously held that “Terri’s Law” was unconstitutional




12/03/04 Governor Bush filed an appeal to the US Supreme Court

01/24/05 US Supreme Court refused to hear the appeal that “Terri’s Law” was unconstitutional

03/16/05 US House Of Representatives passed a Bill entitled “The Incapacitated Persons' Legal Protection Act”

Authorized removal to federal court03/17/05 Florida Supreme House of Representatives

passed a bill requiring a living willFlorida Senate votes down the bill



THERESA SCHIAVO (continued)03/17/05 Schindlers filed a petition with the US Supreme

Court03/17/05 US Supreme Court refused to hear the appeal 03/18/05 US House Of Representatives Committee on

Government Reform requested the US Supreme Court hear the appeal

03/18/05 PEG tube was removed for the third time



THERESA SCHIAVO (continued)03/20/05 US Senate suspended Easter Recess to pass

S.686Applied solely to Terri Schiavo allowing the Schindlers to file another lawsuit alleging Terri’s rights had been violated

03/21/05 US House of Representatives passed S.686 after suspending its Easter Recess

03/21/05 President Bush signed S.686




THERESA SCHIAVO (continued)03/22/05 Federal Judge refused to reinsert PEG tube03/22/05 Schindlers filed an appeal with the US Court of

Appeals03/23/05 US Court of Appeals refused to overturn the

District Court’s ruling03/23/05 Schindlers filed an appeal with the US Supreme

Court03/24/05 US Supreme Court refused to hear the appeal03/25/05 Schindlers filed another appeal to the US Court

of Appeals which was denied03/26/05 Schindlers filed an Appeal with the Florida

Supreme Court which was denied



THERESA SCHIAVO (continued)03/25/05 A man in North Carolina offered $250,000 for the

death of Michael Schiavo and $50,000 for the death of the Trial Court Judge

03/29/05 Reverend Jesse Jackson held a vigil prayer outside the hospice and denounced the removal of the PEG tube

03/29/05 Schindlers filed an appeal with the US Court of Appeals and ask for a hearing En Banc

03/30/05 The whole panel of the US Court of Appeals denied the Schindlers’ appeal

03/30/05 US Supreme Court refused to hear the appeal




03/31/05 Terri Schiavo “DIED”03/15/05 Judge Ordered release of findings of Schindlers’

89 complaints of abuse against Michael Schiavo finding no validity to any complaint

06/15/05 Medical Examiner released findings revealing Terri Schiavo was in a non-reversible vegetative state and there was no evidence of abuse

06/17/05 Governor Bush requested the State Prosecutor investigate Michael Schiavo’s role in Terri’s cardiac arrest in 1990



THERESA SCHIAVO

Scarborough_Wife.wmv

WHAT IS “DEATH”?


Ethical Perspective:Qualitative vs. Quantitative

QualitativeLife Is Measured By The Quality Of The Person Based Upon Their Expression Of “Life” Or A Substitution Of Their JudgmentThe Ability To Love And Be Loved

Quantitative“Sanctity Of Life”-All Life Is PreciousDefinable Legal/Medical Death



Legal PerspectiveCardiopulmonary Death

Brain DeathHarvard Standard

Unreceptivity & Unresponsivity to Intense Painful StimulationNo Spontaneous Movement Or Spontaneous Breathing For >1 HourNo Reflexes, Blinking, Swallowing And Fixed & Dilated Pupils

In re Bowman, 94 Wash. 407, 617 P.2d 731 (1980)



In re BowmanWilliam “Mathew” Bowman Was A 5 Year Old Who Suffered Massive Injuries By Caretaker

Total Absence Of Blood Flow To Brain & No Brain ActivityPupils Were Dilated And NonreactiveNo Response To Pain & No Spontaneous Breathing

Guardian Was Appointed Because Parents Were Not Immediately AvailableParents Were Found And Consented To Have Life Support TerminatedGuardian Objected



In re BowmanCourt Recognized That As Technology Increases, Law Must Adapt Regarding The Definition Of “Death”

Modern Medicine Can Sustain Life In The Absence Of Spontaneous Heartbeat Or RespirationSociety Has A Need For Increased DonorsTremendous Resources Used To Keep Treating Persons Who Should Be Declared “Dead”Need For A Precise Time Of “Death”

Adopted The Uniform Determination Of Death ActIrreversible Cessation Of Circulator & Respiratory System; OrIrreversible Cessation Of All Functions Of The Entire Brain, Including The Brain Stem



Legal PerspectiveBrain DeathNon-Heart-Beating DonorRefers to the harvesting of organs for transplantation from individuals who are declared dead according to the Circulatory-Respiratory (“CR”) criteria recommended in the Uniform Determination of Death Act. The practice has been met with some opposition by those who argue that brain death is essential to death. According to their thinking, CR criteria should not be used to declare death but only to infer brain death. A significant problem is that the inference of brain death from CR criteria requires at least a ten-minute wait. The ramification is that most of the body’s organs would be unusable for transplantation by the time the declaration of death is made, which is required under the Dead Donor Rule. [Source: DuBois, JM, "Non-Heart-Beating Organ Donation: A Defense of the Required Determination of Death," Journal of Law, Medicine & Ethics 27 (1999): 126-36.]

WHAT IS FUTILITY


In re Baby K, 16 F.3d 590 (4th Cir. 1994)Baby K Was Born In October Of 1992 With Anencephaly

Permanently UnconsciousNo Cognitive Ability Or Senses

Physicians Placed A Mechanical Ventilator After BirthAllowed Physicians To Confirm DiagnosisAllowed Mother To Understand Diagnosis And Prognosis

Providers Wanted To Not Utilize Mechanical VentilatorMother Insisted That Baby K Be Provided A Mechanical Ventilator When She Had Trouble Breathing On Her OwnReadmitted From Nursing Home To Hospital 3 TimesCourt Determined That The Emergency Medical Treatment and Active Labor Act (“EMTALA”) Requires Stabilizing

Treatment

WHAT IS FUTILITY


A.R.S. § 36-2281 Infants; nutritional and medical denial or deprivationprohibited; definition

A. A person shall not deny or deprive an infant of nourishment with the intent to cause or allow the death of the infant for any reason including:1. The infant was born with a handicap.2. The infant is not wanted by the parent, parents or guardian.3. The infant is born alive by natural or artificial means.

B. A person shall not deprive an infant of necessary lifesaving medical treatment or surgical care.

C. This section shall not be construed to prevent an infant's parent, parents or guardian from refusing to give consent to medical treatment or surgical care which is not medically necessary, including care or treatment which either:1. Is not necessary to save the life of the infant.2. Has a potential risk to the infant's life or health that outweighs the potential benefit to

the infant of the treatment or care.3. Is futile treatment or treatment that will do no more than temporarily

prolong the act of dying when death is imminent.D. In determining whether any of the possible medical treatments will be medically necessary

for an infant, reasonable medical judgments in selecting among alternative courses of treatment shall be respected.

E. In this article, "infant" means a child less than one year of age.

Physician Assisted Suicide


Is It Ethical?No Provider Should Be Forced To Perform An Act They Find Repugnant

Should Not Be Based On EgoTreatment Should Be Based On Respect For The Patient

No Provider Is Expected To Break The LawSuicide Is Not Against The LawA Physician Cannot Write A Valid Lethal Prescription Per The Controlled Substance Act

Except In Oregon - Death With Dignity ActMay Be Overturned Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. 2004) on Appeal To US Supreme Court

Physician Assisted Suicide


Oregon’s “Death With Dignity Act”Oregon 127.800 et. seq.

Oregon 127.805An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner..

Oregon 127.820Before a patient is qualified under ORS 127.800 to 127.897, a consulting physician shall examine the patient and his or her relevant medical records and confirm, in writing, the attending physician's diagnosis that the patient is suffering from a terminal disease, and verify that the patient is capable, is acting voluntarily and has made an informed decision.


Palliative Care


Vacco v. Quill, 521 U.S. 793117 S.Ct. 2293 (1997).Physicians Challenged The Constitutionality Of New York

Statutes Making It A Crime To Aid A Person In Committing SuicideThe Supreme Court Held The New York Statute Was Not UnconstitutionalThe Supreme Court Recognized That Palliative Care Involving “Double Effect” Is Permissible Even If It Hastens A Patient’s Death

Majority Of The Court Rationalizes That Death Is “Unintended” But ForeseeableEthical Question Is Whether Knowing That Death Will Ensue Could Be “Unintentional” Or Merely A Way To Rationalize The Act Which Causes The Death

FINALLY


The End

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End Of Life