Bioethics & the Law A (Very) Brief Introduction

1. Bioethics & the LawA (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 thomaso5@msu.edu http://www.msu.edu/~thomaso5

2. American Legal System • Statutory Law • Promulgated by legislatures • Offers positivistic rules • Common Law (Case Law) • 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

3. Similarities between Productive Moral/Legal Conversation . . . • Includes people of diverse backgrounds (personal and professional) • Legal Process of Discovery, expert witnesses, evidence • Lays as many ethical considerations as possible on the table • Litigation = Adversarial System seeks truth by hearing disparate perspectives Cf. Brody H, “Ethics, Virtue & Professionalism: An Overview,” Introductory Lecture, HM-546, 2003

4. Similarities between Productive Moral/Legal Conversation . . . • Ethical considerations are critically weighed for pertinence to case at hand • Legal principles applied to facts of case • Often reason by analogy: have we been successful with similar cases in past? • Legal Precedent = reasoning by analogy • Appeals to rules and principles (e.g., patient autonomy) are tools of inquiry, not rigid formulas • But precedent not blindly followed, can change

5. Similarities between Productive Moral/Legal Conversation • Basic moral value, respect for others modeled in process as well as in outcome • 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 • = Basis of Adversarial System, to seek “truth”

6. Dr. Brody’s Two Questions: • What ought to be done in this situation, all things considered? • “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? • “Video ethics” • Main focus of professionalism curriculum • Law does not generally seek to address – leaves to profession

7. Similarities Between Law & Bioethics • 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

8. But . . . • 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.

9. Law & Ethics Differ • 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 • 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

10. Law in Clinical Ethics • 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.

11. Resolve ethical conflicts . . . as close to the bedside as possible.

12. An Example:Terri Schiavo • 41 y/o woman in Persistent Vegetative State (PVS) since 1990 • When heart stopped temporarily, result of potassium imbalance • Breathed on own, but could not swallow • Feeding tube needed for nutrition/hydration • Husband battled her parents over whether she should be allowed to die • 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

13. Diagnosis of Persistent Vegetative State • Vegetative State • 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) • 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

14. Definition of PVS in Florida Statute • Florida Statue 765.101:Persistent vegetative state means a “permanent and irreversible condition of unconsciousness in which there is: • (a) The absence of voluntary action or cognitive behavior of ANY kind. • (b) An inability to communicate or interact purposefully with the environment.”

15. Procedural History . . . • 1998-Michael petitions guardianship court to authorize withdrawal of life-prolonging procedures. After trial, order so authorized • “clear & convincing evidence” of PVS • Affirmed on appeal to Fla 2d Dist. • 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” • chapter 2003-418 • Gov. Bush signed, then issued executive order replacing tube

16. . . . Procedural History . . . • Michael files for declaratory judgment in Circuit Ct, which ruled in his favor • 2d Dist Ct of Appeal certified to FL S. Ct. • Sept. 23, 2004-FL Supreme Court declares law unconstitutional • 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

17. . .. .Procedural History • 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

18. What lessons can be learned? • “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 • Court decisions should be last resort • Legislative resolution? Executive intervention? • Families need to have “caring conversations” about end of life wishes

19. Other Significant Cases on Life-Sustaining Interventions (see Lo, ch. 23) . .. • In the Matter of Quinlan, Supreme Court of New Jersey (1976) 70 N.J. 10, 355 A. 2d. 647 • 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.

20. . . . Other Cases . . . • Cruzan v. Director, MDH, U.S. Supreme Court 497 U.S. 261 (1990) • 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.”

21. . . . Other Cases . . . • Conservatorship of Wendland, Calif. Supreme Court (Aug. 9, 2001). • 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.”

22. . . . Other Cases • Brophy v. New England Sinai Hospital, Supreme Judicial Court of Massachusetts (1986) 398 Mass. 417; 497 N.E.2d 626 • 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.”

23. Some Legal Issues in HM-546 . . . • Week 1: Introduction to Ethics & Law • Lo, Chs. 1, 2, also 23 • Week 2: Competent Patient decisions • 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 • 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

24. . . . Legal Issues in HM-546 . . . • Week 4: Children & Infants • 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 • Role of civil discourse • (see Matthews-Green, “Subversive Civility,” from Week 1) • Legal/ethical status of fetus, abortion laws (Lo, Ch. 13) • Actions permitted by law may be ethically controversial • Week 6: Flow of Medical Information • Legal/ethical standards for truth-telling, informed consent, confidentiality • See Lo, ch. 3, 5, 6, 34, 38

25. . . . Legal Issues in HM-546 • Week 7: Genetics • 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 • Legal standards for protections of human subjects • Legal/ethical definitions of conflict of interest • See Lo, ch.28, 29, 30, 32, 33

26. Further Resources • 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.