END OF LIFE DECISION- MAKING: Legal Centre for Professional Education 16 April 2012

1. END OF LIFE DECISION- MAKING: Legal Centre for Professional Education 16 April 2012

2. Topics • Patient on life support • Patient refuses treatment • Withholding of treatment • ‘Do not resuscitate’ orders • Voluntary euthanasia • Advance directives • The double effect • Physician-assisted suicide

3. Patient clinically dead on life support • S v Williams • Appellate Division: disconnection of life support was merely the termination of a futile attempt to save the patient’s life. • Disconnection of life support not unlawful

4. Patient refuses treatment / food • Not euthanasia • A form of suicide • Should patient be forced? - Section 12(2) Constitution of SA - UK courts- a patient who has the necessary mental capacity & has been properly informed of the nature of his condition and the implications of treatment, is entitled to accept or decline that treatment as he sees fit.

5. Withholding treatment • Usually not to kill the patient • Resource scarcity • Futility • Patient refuses treatment/nutrition • The treatment will cause more harm that good

6. ‘Do not resuscitate’ Orders • What is the benefit- prevent a pointless reduction of the quality of dying (J Van Delden: Encyclopedia of Applied Ethics) • Quality of dying=quality of life at the end • Unsuccessful resuscitation disturbs the process while adding nothing

7. Euthanasia[Greek eu (good) thanatos (death)]Death is normally considered a tragedy but this term means ‘good death’.

8. Voluntary Euthanasia • Active -pt asks Dr to kill her • Passive - Dr withholds lifesaving treatment to bring about the death of the pt (note the intent requirement)

9. Voluntary Active Euthanasia • Illegal even if competent patient autonomously requests it.

10. Advance Directives • A written (although sometimes oral) statement intended to govern health-care decision-making in case of future situations where there exists a mental incapacity to make such decisions. • Governs clinical decision-making

11. What forms can it take Living will Contains more or less detailed instructions for medical interventions Durable power of attorney Appoints surrogate decision-maker with full/partial authority to make/share in decisions. (not available in SA) Values history Provides information on personal values, history.

12. What issues should it address • Palliative care • Withholding or withdrawing of interventions • Acceptance of the double effect • Withdrawal of basic life-sustaining support such as ventilation, nutrition, hydration. • Wishes regarding the social environment

13. What scenarios should be considered • Pre-terminal & terminal stages with irreversible, painful, underlying multi-morbidity. • Prolonged coma and persistent vegetative state. • Severe dementia.

14. Advance Directives: Pro • Mentally competent patient can refuse treatment • Advance directives are a legitimate refusal by a competent patient in anticipation, at an earlier stage. • It is a standing request to medical staff to act in a specific manner in specific circumstances

15. SA Case: Clarke v Hurst NO • Clarke had a heart attack, resuscitation restored his heartbeat. Brain-damaged, deeply comatosed, PVS 4years. • Effect should be given to the patient’s wishes as expressed when he was in good health. • Clarke’s Living Will was not the only criterion, court also looked at his quality of life, moral convictions of the community.

16. The Double Effect • Intent is to relieve pain • But has the effect of hastening death • Death is the unintended side effect • Is it murder? • Would you undermanage pain because of concerns about euthanasia?

17. The Double Effect • Pain relief should be defined by its aim not its side effect. Many medical acts and drugs have side effects but they are not defined in terms of them. (Leenen H The definition of euthanasia 1986 Medicine & law 349)

18. Physician –assisted suicide • Not euthanasia • Patient asks Dr for script for lethal drug or for the lethal drug. • If you believe that you have a right to take your own life, should you be allowed to ask for assistance? - Oregon example

19. Physician-assisted suicide • S v Hibbert: husband provided gun to wife. The wife’s act of pulling the trigger cannot be isolated from the events leading up to it. ‘The accused occasioned the death of his wife by his conduct. He had the necessary intention and is therefore guilty of murder ‘

20. Some cases S v De Bellocq 1975 S v Hartmann 1975 • Sentencing a mixture of censure and compassion

21. Sanctity of life Pressure on old, ill, disabled Mistrust of physicians Weakening of optimal care for dying Weaken general prohibition against homicide Slippery slope Quality of life Self-determination End to unrelievable pain, suffering Humane Where euthanasia legal, most do not choose it, still have to care properly for dying Resources Pros & Cons

22. SA Law Commission on active VE • Option 1: Keep it illegal • Option 2: Make it legal (doctors acts on competent terminally ill patient’s request) • Option 3: Make it legal but let multidisciplinary committees decide

23. SA Law Commission recommends:-Doctor may cease or authorise the cessation of all Tx of a patient whose life functions are being maintained artificially while the person has no spontaneous respiratory or circulatory functions or where the patient is braindead. -Competent person may refuse life-sustaining Tx-Doctor or nurse (!) may relieve suffering of a terminally ill patient even if this shortens the patient’s life.-Doctor may give effect to Advance Directives-Doctor may cease or authorise the cessation of Tx of a terminally ill patient provided this is in accordance with the patient’s wishes, or the family’s wishes or authorised by a court order.

24. RESOURCES:1. Ethics: Encyclopedia of Applied Ethics (in med school library) see Advance directives, Do not resuscitate decisions, Euthanasia & Medical futility.2. Law: P Strauss Doctor, patient and the law;3. www.wits.ac.za/salc for SA Law Commission Discussion Paper

25. Univ Minnesota Centre for Bioethics • Mary Faith Marshall's article on issues raised at Memorial Medical Center.The piece can be found here: www.bioethics.umn.edu/publications/be/2006/BE-2006-summer.pdf -

26. With thanks to Anita Kleinschmidt