Please read & review the
attached CNN article
by Brittany Maynard that is in the attached and discuss the following in legal detail:
Questions to be answered and discussed:
1) What are the legal and ethical dilemmas presented by Mrs. Maynard's situation and ultimate decision?
2) What are some of the arguments opponents of Oregon's Death with Dignity Act would make against Mrs. Maynard's decision?
Slide 1 Chapter 3 End-of-Life Dilemmas 1 When we finally know we are dying, and all other sentient beings are dying with us, we start to have a burning, almost heart-breaking sense of the fragility and preciousness of each moment and each being, and from this can grow a deep, clear, limitless compassion for all beings. —Sogyal Rinpoche Learning Objectives (1 of 2) Describe the human struggle to survive. Discuss end-of-life issues, including: Euthanasia Right to self-determination Defining death Legislative response Learning Objectives (2 of 2) Describe how patient autonomy has been impacted by case law and legislative enactments. Assisted suicide Patient Self-Determination Act of 1990 Advance directives (e.g., living will, durable power of attorney) Futility of treatment Withholding and withdrawal of treatment Human Struggle to Survive Dreams of immortality Race to prevent and cure illness Advances in medicine prolong life Process of dying prolonged Artificial body organs Exotic machines Medications Euthanasia Greek: euthanatos, meaning “good death” or “easy death” Euthanasia: “The mercy killing of the hopelessly ill, injured or incapacitated.” Active or Passive Euthanasia Active euthanasia is the intentional commission of an act that results in death. Example: Administration of a lethal dose of medication. Passive euthanasia is when a life-saving treatment is withdrawn or withheld. Example: Taking a patient off a respirator. Voluntary or Involuntary Euthanasia Voluntary euthanasia: Suffering person makes decision to die. Involuntary euthanasia: Person other than the one with the incurable condition makes the decision to terminate life. Questions of Values: Involuntary Euthanasia Who should decide whether to withhold or withdraw treatment? On what factors should such a decision be based? What viable standards are there to guide the courts? Should criminal sanctions be imposed on a person assisting in ending life? When does death occur? Right to Self-Determination Every human being of adult years has a right to determine what shall be done with his own body; and the surgeon who performs an operation without his patient’s consent commits an assault for which he is liable for damages. —Schloendorff v. Society of New York Hospital In re Storar Every human being of adult years and sound mind has the right to determine what shall be done with his own body. In re Quinlan Constitutional right to privacy protects patient’s right to self-determination. A state’s interest does not justify interference with one’s right to refuse treatment. Superintendent of Belchertown State School v. Saikewicz Saikewicz allowed refusal of treatment. Questions of life and death with regard to an incompetent person should be the responsibility of the courts. Court took a “dim view of any attempt to shift ultimate decision-making responsibility away from duly established courts of proper jurisdiction to any committee, panel, or group, ad hoc or permanent.” In re Dinnerstein “No code” orders are valid to prevent the use of artificial resuscitative measures on incompetent terminally ill patients. In re Spring Patient’s mental impairment and medical prognosis with or without treatment must be considered prior to seeking judicial approval to withdraw or withhold treatment from an incompetent patient. Court Involvement Court involvement is required when: Family members disagree as to the incompetent person’s wishes. Physicians disagree on the prognosis. A patient’s wishes are unknown because he or she always has always been incompetent. Evidence exists of wrongful motives or malpractice. Defining Death Irreversible cessation of brain function. American Medical Association in 1974: Death is when there is “irreversible cessation of all brain functions including the brain stem.” Evidence of Patient’s Intention Not to Prolong Life Patient’s intention to reject prolongation of life by artificial means can be determined by: Persistence of statements regarding an individual’s beliefs Commitment to beliefs Seriousness of statements made Inferences drawn from surrounding circumstances Nancy Cruzan Case The Supreme Court analyzed the issues presented in Cruzan in terms of a Fourteenth Amendment liberty interest. They found that a competent person has a constitutionally protected right grounded in the due process clause to refuse lifesaving hydration and nutrition. Legislative Response After the Cruzan decision, states began to draft new legislation in the areas of living wills, durable powers of attorney, healthcare proxies, and surrogate decision making. Chief Justice Dore, Washington Supr. Ct. stated: As was the case in Cruzan, our legislature is far better equipped to evaluate this complex issue and should not have its power usurped by this court. Assisted Suicide Assisted suicide presents profound questions of ethics, religious beliefs, and public policy issues. Issue in which public input is vital. Courts not equipped to conduct the type of comprehensive review required. Legislative and executive branches of government are equipped to pursue these issues. Physician-Assisted Suicide Physician-assisted suicide is an action in which a physician voluntarily aids a patient in bringing about his or her own death. U.S. Supreme Court rejected Kevorkian’s argument that assisted suicide is a constitutional right. Physician-Assisted Suicide: Supreme Court Rulings U.S. Supreme Court, in two unanimous and separate decisions, ruled: Laws prohibiting assisted suicide are constitutional. Laws allowing doctors to assist in suicide of their terminally ill patients are constitutional. New Mexico Court A New Mexico judge has ruled that terminally ill, mentally competent patients have the right to get a doctor to end their lives. The ruling by Judge Nan Nash of the New Mexico Second Judicial District would make Ne Mexico the fifth state to allow doctors to prescribe fatal prescriptions to terminal patients. —Steve Siebold, Huffington Post, March 17, 2014 Quill v. Vacco Supreme Court found that neither the assisted suicide ban nor the law permitting patients to refuse medical treatment treats anyone differently from anyone else or draws any distinctions between persons. There is a distinction between letting a patient die and making one die. Most legislatures have allowed the former but have prohibited the latter. The Court disagreed with the respondents’ claim that the distinction is arbitrary and irrational. Washington v. Glucksberg The U.S. Supreme Court held that assisted suicide is not a liberty protected by the Constitution’s due process clause. A majority of states now ban assisted suicide. These rulings, however, do not affect the right of patients to refuse treatment. Oregon’s Death with Dignity Act Allows terminally ill Oregon residents to obtain a lethal dose of medication from their physician. Legalizes physician-assisted suicide. Prohibits physician or other person from directly administering medication to end another's life. Patient Self-Determination Act of 1990 Patients have right to formulate advance directives. Healthcare providers receiving federal funds under Medicare need to comply with regulations. Advance Directives Patients have a right to make decisions about their health care with their physician. They may agree to a proposed treatment, choose among offered treatments, or refuse a treatment. Living Will Instrument or legal document that describes treatments individual wishes or does not wish to receive should he or she become incapacitated and unable to communicate treatment decisions. Durable Power of Attorney A legal device that permits one individual, known as the “principal,” to give to another person, called the “attorney-in-fact,” the authority to act on his or her behalf. The attorney-in-fact is authorized to handle banking and real estate affairs, incur expenses, pay bills, etc. Durable Power of Attorney for Health Care An agent makes health and personal care decisions for the patient in the event the patient becomes unable to make his or her own decisions. Surrogate Decision Making A surrogate decision maker is an agent who acts on behalf of a patient who lacks the capacity to participate in a particular decision. Substituted Judgment Substituted judgement is a form of surrogate decision making where the surrogate attempts to establish what decision the patient would have made if that patient were competent to do so. Guardianship Guardianship is a legal mechanism by which court declares a person incompetent and appoints a guardian. Healthcare Proxy A healthcare proxy is a document that allows a person to appoint a healthcare agent to make treatment decisions in the event he or she becomes incompetent and is unable to make decisions for him- or herself. Futility of Treatment Physician recognizes that effect of treatment will be of no benefit to the patient. Morally, the physician has a duty to inform the patient when there is little likelihood of success. The determination as to futility of medical care is a scientific decision. Withholding and Withdrawal of Treatment Withholding of treatment is a decision not to initiate treatment or medical intervention for the patient. This is a decision often made when death is imminent and no hope of recovery. Withdrawal of treatment is a decision to discontinue treatment or medical interventions for the patient when death is imminent and cannot be prevented by available treatment. When to Withhold or Withdraw Treatment Patient is in a terminal condition. Reasonable expectation of imminent death. Patient is in a noncognitive state with no reasonable possibility of regaining cognitive function. Restoration of cardiac function will last but for a brief period. Removal of Life-Support Equipment May be a duty to provide life-sustaining equipment in immediate aftermath of cardiopulmonary arrest. However, no duty to continue its use once it becomes futile. Terri Schiavo (1 of 12) 27-year-old Terri Schiavo suffered a cardiac arrest in 1990 and never regained consciousness. She lived in nursing homes and was fed and hydrated by tubes. In 1998, Michael, Terri’s husband, petitioned the court for guardianship to authorize termination of life-prolonging procedures. Terri’s parents opposed the petition. Terri Schiavo (2 of 12) Michael contended his wife never wanted to be kept alive artificially. Terri’s parents told the justices that their son-in-law was trying to rush her death so he could inherit her estate and be free to marry another woman. Terri Schiavo (3 of 12) A guardianship court issued an order authorizing discontinuance of artificial life support. Trial court found by convincing evidence that Terri was in a persistent vegetative state and she would elect to cease life-prolonging procedures if she were competent to do so. Order was affirmed on appeal. Terri Schiavo (4 of 12) On October 21, 2003, the Florida legislature enacted chapter 2003-418, which the governor signed into law and issued Executive Order No. 03-201 to stay the continued withholding of nutrition and hydration. The nutrition and hydration tube was reinserted pursuant to the governor's executive order. Terri Schiavo (5 of 12) Florida Law Chapter 2003-418: Section 1. (1) The Governor shall have the authority to issue a one-time stay to prevent the withholding of nutrition . . . : (a) That patient has no written advance directive; (b) The court has found that patient to be in a persistent vegetative state; (c) That patient has had nutrition and hydration withheld; and (d) A member of . . . family has challenged the withholding of nutrition . . . . Terri Schiavo (6 of 12) The circuit court entered a judgment on May 6, 2004, in favor of Michael. The circuit court found that chapter 2003-418 was unconstitutional because it allowed the governor to encroach upon judicial power and to retroactively abolish Terri's vested right to privacy. Terri Schiavo (7 of 12) This case was not about the aspirations loving parents have for their children, it was about Terri’s right to make her own decision. It is unfortunate that when families cannot agree, the best forum for a personal decision Is a public courtroom The decision-maker is a judge The law, however, provides no better solution to protect interests of promoting value of life Terri Schiavo (8 of 12) The court stated: We are a nation of laws and we must govern our decisions by the rule of law and not by our emotions. Our hearts comprehend the grief so fully demonstrated by Terri's family members. But our hearts are not the law. What is in the Constitution always must prevail over emotion. Our oaths as judges require that this principle is our polestar, and it alone. Terri Schiavo (9 of 12) If the Legislature with the assent of the Governor can do what was attempted here, the judicial branch would be subordinated to the final directive of the other branches. Also, subordinated would be the rights of individuals, including the well established privacy right to self-determination. —Bush v. Schiavo, No. SC04-925 (Fla. App. 2004) Terri Schiavo (10 of 12) No court judgment could ever be considered truly final and no constitutional right truly secure, because the precedent of this case would hold to the contrary. Vested rights could be stripped away based on popular clamor. —Bush v. Schiavo, No. SC04-925 (Fla. App. 2004) Terri Schiavo (11 of 12) U.S. Supreme Court on January 24, 2005, refused to reinstate the Florida law passed to keep Terri connected to a feeding tube, clearing the way for it to be removed. Discuss the ethical and legal issues. Terri Schiavo (12 of 12) Ethical issues Autonomy Legal issues Guardianship Right to self-determination Do Not Resuscitate Orders Orders given by a physician indicating that in the event of a cardiac or respiratory arrest “no” resuscitative measures should be used. Given when quality of life has been so diminished that “heroic” rescue methods are no longer in patient’s best interests. Review Questions Describe why there is such a struggle when addressing end-of-life issues. Describe the difference between active and passive euthanasia. Describe the difference between voluntary and involuntary euthanasia. What are the differences between allowing a patient to die and physician-assisted suicide? Constitutionally, what gives patients the right to self-determination? Describe Oregon’s Death with Dignity Act. What was the purpose of the Patient Self-Determination Act of 1990? What are advance directives? Describe how a living