Seventy-year-old Morris Brook is brought into the emergency department by ambulance. His family explains that his breathing has been getting progressively worse over the past two days and that he has metastatic cancer of the prostate for which he has been receiving only palliative treatment.
His private physician is out of town and unavailable for immediate consultation.
His old records show that he had an operation for cancer of the prostate one year ago and the prognosis for this stage of the disease was poor.
This appears to be consistent with the family’s history, but the emergency physician does not have the most recent volume of his record. Mr. Brook is in marked respiratory distress and does not seem capable of carrying on a rational conversation at this time.
While the physician is reviewing the patient’s old chart, his respirations become increasingly labored.
The physician decides that it is necessary to place a tube into Mr. Brook’s trachea to assist his breathing, but the family objects to such measures. They claim that he has suffered enough and request that he be allowed to die peacefully.
Sheila Lowell is a 90-year-old nursing home resident who is senile, uncommunicative, and bedridden. One morning she is transferred to the emergency department because of fever and rapid breathing, but upon arrival she stops breathing.
Should the physician intubate her? If he does, and places the patient on a ventilator, it could mean months of treatment in the intensive care unit.
On the other hand, Mrs. Lowell may have pneumonia and, if treated aggressively for several weeks, could return to her baseline status in the nursing home.
Comment: If the same patient were in the nursing home when she stopped breathing, probably no resuscitative measures would be taken. Most likely, the mortician would be called and the patient would be transferred to the emergency department merely for pronouncement of death.
The similarities between these two cases are significant. In neither case is the patient able to express his or her own wishes (and so is legally incompetent).
In each case the patient is experiencing respiratory difficulties which are life-threatening. And in each case there are reasons for the physician to wonder whether it is appropriate to withhold life-sustaining therapy.
Cases may be treated differently only if there are relevant differences between them, and it is useful to ask whether there are relevant differences between these cases.
Possible Relevant Differences between Mr. Brook and Mrs. Lowell.
- Mr. Brook’s family has requested that treatment be withheld; no such request has been made in Mrs. Lowell’s case.
- Mr. Brook’s underlying condition — metastatic cancer of the prostate — is life-threatening; Mrs. Lowell has no other life-threatening condition.
- Mr. Brook may be only temporarily incompetent; Mrs. Lowell is permanently incompetent.
In the first case, but not the second, the family has requested that the treatment not be administered. Normally, guardians are not legally permitted to refuse lifesaving therapy for incompetents; there are, however, exceptions.
The most defensible case of honoring proxy consent and withholding vital therapy is when there is clear evidence that the patient has expressed such wishes while competent.
When proxy consent is upheld in such situations, it is referred to as “substituted judgment,” and the idea is to protect the patient’s right to self-determination.
When there is no evidence of what the patient’s real wishes are, however, invoking the notion of substituted judgment to resolve these cases is, at best, a sham and, at worst, weakens the doctrine of self-determination for all.
Since as the first case is presented, there is no indication that the patient, while competent, expressed wishes dealing with situations of this type, it is doubtful that the family’s request that the treatment be withheld should be a significant factor in deciding the case.
And it is naive to assume that the family always has the patient’s best interests at heart.
Another possible difference concerns the presence of other serious medical problems. Mr. Brook has metastatic cancer of the prostate, the prognosis for which is quite poor.
And though Mrs. Lowell is senile and bedridden, there is no indication that she has any other life-threatening medical problem. In these particular cases, however, it is doubtful that this difference should carry much moral (or legal) weight.
Two cases are typically judged differently because of the presence of additional medical complications for one of the patients only when that additional condition renders the future prospects of the patient significantly worse than those of the other patient.
This is well-illustrated in comparing the cases of Delores Heston and Karen Quinlan. In each of these cases there was parental refusal of (what was believed to be) life-saving therapy for an incompetent.
Delores Heston, a 22-year-old, was undergoing emergency surgery and was temporarily unable to speak for herself. The physician needed to administer blood.
He sought the consent of her mother, a Jehovah’s Witness, who refused, so he took the case to court. Delores Heston was declared a “neglected dependent,” her mother’s wishes overridden, and blood was administered.
By contrast, Karen Quinlan’s parents, after appeal, were granted their request that she not be continued to be maintained on a respirator.
A crucial factor in support of complying with the parents’ wishes was that Karen was judged to be in an irreversibly comatose state.
Unlike Delores Heston, Karen Quinlan had no prospects for a future life. But this important difference is not really present in the two cases under discussion. In each of these cases the future prospects for the patients are not good, though for different reasons.
Another way in which these cases might differ concerns whether the patient has any chance of being competent again. It would seem that Mrs. Lowell has no chance of regaining her competence.
In the first case, however, we are not told whether Mr. Brook’s incompetence is temporary or caused by a permanent underlying condition. If Mr. Brook’s inability to carry on a rational conversation is only temporary, it will be difficult to justify withholding the treatment.
Though family members have expressed their wishes, we do not know whether the patient himself wants to be allowed to die peacefully in this situation.
And if somehow we can learn (even if only later) what the patient’s own desires are, respect for his right to self-determination suggests that we must try to keep him alive at least until then.
The cases are more interestingly similar, however, if Mr. Brook’s incompetence is not merely temporary. Let us proceed, then, on the assumption that this is so. In the second case, we are told explicitly that if the patient is saved, she might require months of intensive care and thus be a drain on medical resources. It is not clear that the same is true of Mr. Brook.
That he is receiving only palliative treatment for his cancer suggests that he does not consume scarce medical resources in great quantities. It is, no doubt, disturbing to some that this consideration is even mentioned.
It raises the red flag of the “wedge argument,” suggesting that we are moving toward a “euthanasia program” to rid society of undesirables. (The wedge argument — also sometimes called the slippery slope argument — assesses certain social policies negatively because of the predicted consequences of enacting those policies.)
But in days of skyrocketing medical costs, society may not be able to extend expensive health care indiscriminately. What was once ordinary treatment might come to be regarded as extraordinary (a reversal of the usual progression).
If so, we will have to face such unsettling questions as whether saving a given patient is a wise or appropriate use of expensive medical resources.
PATIENTS’ BEST INTERESTS
In the absence of any evidence of what patients themselves would want, it seems that the decision about whether to withhold treatment must appeal either to the best interests of the patients or to what a reasonable person would choose in the same situation.
These two criteria are not equivalent, and though I provide no argument for rejecting the reasonable-person standard, I shall focus on the interests of the patients, asking of each whether it is in his or her best interests to receive the life-sustaining treatment, intubation.
To some it may sound odd even to entertain the hypothesis that receiving life-sustaining therapy is not in an individual’s interests, but a little reflection suggests that this possibility is plausible.
Consider again the case of Karen Quinlan. She was irreversibly comatose from April 15, until her death on June 11. And though she was disconnected from the respirator on May 22, she continued to receive therapy that was necessary for saving her life: She was fed intravenously and antibiotics were administered periodically.
Did these procedures promote her interests? It seems doubtful that they did; indeed, it may not make sense to say that an individual in an irreversibly vegetative state has any interests.
Of each patient in these cases, we can ask two questions: Does the patient have an interest in receiving the treatment? Does the patient have an interest in continuing to live?
It is important to realize that a negative answer to the latter question need not entail a negative answer to the former. A patient who has no interest in living may still have an interest in not experiencing pain, and treatment may be necessary to prevent pain.
Considerations relevant to answering these questions include (but are not limited to) the likely consequences for the patient if the treatment is not administered, whether upon receiving the treatment the patient can live a satisfying life with cognitive activity, and how much longer the patient is likely to live if he or she is given the therapy.
The prospects for Mrs. Lowell are not good. Given that she is senile, uncommunicative, and bedridden, it seems unlikely that she has a strong interest in continuing to live. It should be noted, though, that even if the patient has no interest in continuing to live, it need not follow that she has an interest in dying.
Perhaps she has no interests at all, or perhaps her only interest is in avoiding pain. When such situations obtain, it may be appropriate to determine whether to administer or to withhold treatment by appealing to the interests of society (as long as withholding treatment does not cause pain).
In addition, because she has stopped breathing, it is likely that withholding the treatment will result in a quick and reasonably peaceful death for her. This suggests that failing to intubate the patient is not contrary to her interests.
It is a little more difficult to speculate about what will promote the interests of the patient in the first case.
Given that Mr. Brook’s cancer is spreading, his future prospects are poor. And if it is likely that he will never again be competent, there is little to indicate that he has an interest in continuing to live.
In this case, however, though Mr. Brook is having breathing difficulties, he has not stopped breathing. It is not clear that failure to provide him with assistance will result in a quick and peaceful death; indeed, he may linger for some time.
If a quick and peaceful death will result from failure to intubate, it is plausible to say that Mr. Brook has no strong interest in receiving the treatment. But if he will linger and possibly be in pain, he does have an interest in receiving the therapy.
In this analysis we have put aside questions about whether either or both patients will be a drain on valuable medical resources if life-sustaining therapy is administered, and if they will be, whether that is an appropriate reason for withholding treatment. Instead, we have focused on the interests of the patient.
We have suggested that it is not always in one’s interests to continue to live. On the assumption that Mrs. Lowell will die quickly and peacefully without the intubation, it seems plausible to say that receiving this treatment is not in her interests.
But if Mr. Brook can return to a state of competence or if failure to intubate will not result in a quick and painless death for him, he no doubt has an interest in receiving the treatment (even if he does not have an interest in continuing to live).
These recommendations are, of course, moral ones; how the law would deal with these cases is a separate matter.
Lest the reader misconstrue what I have suggested, allow me to issue three qualifications. First, I do not mean to approach the question of what is in a person’s best interests cavalierly.
In many cases, including the two under discussion, it is very difficult to say with any assurance what is in a person’s best interests.
Second, I do not mean to imply that the decision in these particular cases about what is in each patient’s best interest is a purely medical decision; it is not. Though medical factors are quite relevant in determining what is in the patient’s best interests, they are not the only relevant considerations.
Thus, the decisions to be made in these cases are moral ones. When this is so, it seems inappropriate for physicians alone to make the decisions; so-called “ethics committees” may be able to play a useful role here.
In many of these cases, of course, decisions must be made instantaneously, and ethics committees can provide no assistance. And third, we should be very cautious before we conclude that it is not in the patient’s interest to continue to live. It is all too easy to allow the rights of incompetents to be violated, and institutional safeguards are essential.
Why some people approve of allowing a patient to die when he or she has no interest in continuing to live but will not approve of actively killing that patient, even when letting die is painful to the patient and killing need not be, is an interesting question which I leave unaddressed.