A Question of Life and Death

My excellent friend Jeff, who has all that medical background I lack, raises an interesting and potentially very important question on the back of a rather controversial Connecticut case:

the broad issue [seems to be] whether a government can rightfully force someone to undergo some treatment. […] Church teaching is that yes, there are medical cases in which a governing body can rightfully prevent the cessation of certain medical treatments because sometimes prevention of such cessation is a matter of justice.

(source: Not Moralizing a Hospital: Cassandra’s Lymphoma)

I concur.  I think Jeff and I are both hearing the same lesson.  So far, we agree in principle.  I would point out that we should differentiate “cessation,” as in, taking away a treatment, from initiating a treatment.  I think that whether to initiate a treatment was at issue in the case in point.  I’m going to emphasize some key moments in Jeff’s continued analysis, here:

Let’s assume [the cancer] was detected in its early stages and the chemotherapy drugs in question are the medical community’s standard treatment for [such] cases and tend to yield favorable results. Additionally, let’s assume that Cassandra’s proposed alternative treatments are considered by the mainstream medical community to probably be hogwash. Under these circumstances, Cassandra would be refusing a treatment that could reasonably be argued to not be extraordinarily burdensome […] and pursue a treatment that is about as effective as doing nothing[…]. To intentionally perform such actions is immoral, for it is morally obligatory for one to, barring treatment-based suffering that is disproportionate to expected results (some expected span of life), avoid your own death

(source: Not Moralizing a Hospital: Cassandra’s Lymphoma)

Let me just enumerate some points of agreement and disagreement in this analysis, then I want to propose some texts for careful study and reflection. Jeff and I agree about many things, but here are a few principles we agree on in this analysis:

1. To intentionally end a human life is always a matter of justice, and the regime always has an insuperable obligation to intervene to prevent the killing of anyone not engaged in warfare or justly sentenced for a capital crime.
2. To intentionally deprive a person of biological necessities (nutriment, shelter, air) or emergency care (trauma, wounds, acute disease) so that that person dies is intentionally ending a human life.
3. To refuse or deny ordinary, non-burdensome medical care in the face of convincing evidence that such refusal will cause a death that treatment would avoid is, when the circumstances really are that clear, intentionally ending a human life.
4. The regime may well have just cause to intervene when ordinary, non-burdensome medical care is being refused or denied.

And here are a few points where I think our analyses diverge:

1. “Cessation” of a treatment that seems to be working does not seem identical to initiation of a treatment that may work, or cessation of a treatment that does not seem to be providing a net benefit.
2. The standard I see urged in Church teaching is that means which are “extraordinary” or “burdensome” are not to be required; no finding that a burdensome means is extraordinary, or an extraordinary means burdensome, is required.  Only ordinary means which are not burdensome are required as a matter of justice.
3. Jeff suggests a parallel between chemotherapy and feeding tubes, but I think his argument would have been stronger without this analogy.  Nutriment is always both ordinary and necessary, and should be provided so long as there is life to be nourished; even successfully managed use of toxic chemicals is not closely analogous.
4. Not every obligation in justice is also a matter of human law; each of us has many obligations in justice that the regime is not required or competent to enforce (I owe it to my wife to help keep up with housework).
5. Likewise, not every legal expression (even where just) of a natural-law obligation is itself equivalent in force to the natural-law obligation.  In other words, establishing that there is a justiciable matter at the bottom of the case does not establish any particular means for intervention.
6. “Tend to produce favorable results” may contribute to moral certainty about the likely result, but it is not the same.  Similarly, what is “favorable” and what “can reasonably be argued” are matters which help to form a judgment, not themselves moral certainties.  The obligation would attach, not to various “reasonable” predictions, but to what was viewed as morally certain, that is, as definite enough to the person responsible for the decision to make moral obligation attach.
7. “Some expected span of life” is almost certainly not a suitable standard for what is “extraordinary” or “burdensome” in medical care.  As a Christian, I am persuaded that I ought to frame my pragmatic judgments (I don’t do things I am pretty sure will shorten my life, like chew tobacco, rollerskate in a buffalo herd, or sit in a car for hours a day–oh, wait, I do that last one) with a moral certainty, in fact, a certainty de fide:  that the time of my life is not mine to decide.  And even existentially I know that treating continued life as a metered expectation is just going to lead to death-avoidance which prevents me from thinking of my life integrally and authentically.  Therefore, I would advise against using lifespan calculus as an ultimate, rather than a very contingent and partial, frame of reference for medical success.
8. Finally, the obligation in justice attaches where an action must be taken, and the responsibility lies with the one who decides what that action is.  If the patient wants (otherwise available) treatment, and the doctor refuses, the question in justice attaches to the doctor’s refusal.  If the doctor recommends treatment, and the patient refuses, the question attaches to the patient’s refusal.  But that means that what appears morally certain to the patient is at issue, here; to transfer the responsibility to anyone else requires a finding that the patient is not competent, in which case the responsibility moves to that patient’s family/guardian or, in emergency, to anyone capable of deciding to treat the patient (i.e., the doctor).  To find just cause for intervention in the case in point, we have to deal with what is morally certain for the decision-maker (and that would be either the patient, or the patient’s mother, barring some finding that the patient is incompetent and the mother unfit).  And we can’t say that refusing treatment doctors think helpful is ipso facto being incompetent to decide on medical treatment, or there’s no moral analysis left at all.

[No, you can’t rollerskate in a buffalo herd!] [youtube https://www.youtube.com/watch?v=q6WjfuxfIiw?rel=0&controls=0&showinfo=0] Now, let me risk the patience of all who read here by simply recommending a very close and careful reading of the following.  I’ll add some emphasis where I think it may help:

By euthanasia is understood an action or an omission which of itself or by intention causes death, in order that all suffering may in this way be eliminated. Euthanasia’s terms of reference, therefore, are to be found in the intention of the will and in the methods used. It is necessary to state firmly once more that nothing and no one can in any way permit the killing of an innocent human being, whether a fetus or an embryo, an infant or an adult, an old person, or one suffering from an incurable disease, or a person who is dying. Furthermore, no one is permitted to ask for this act of killing, either for himself or herself or for another person entrusted to his or her care, nor can he or she consent to it, either explicitly or implicitly. nor can any authority legitimately recommend or permit such an action. For it is a question of the violation of the divine law, an offense against the dignity of the human person, a crime against life, and an attack on humanity.

(source: Declaration on Euthanasia – May 5, 1980)

In any case, it will be possible to make a correct judgment as to the means by studying the type of treatment to be used, its degree of complexity or risk, its cost and the possibilities of using it, and comparing these elements with the result that can be expected, taking into account the state of the sick person and his or her physical and moral resources. In order to facilitate the application of these general principles, the following clarifications can be added: – If there are no other sufficient remedies, it is permitted, with the patient’s consent, to have recourse to the means provided by the most advanced medical techniques, even if these means are still at the experimental stage and are not without a certain risk. By accepting them, the patient can even show generosity in the service of humanity. – It is also permitted, with the patient’s consent, to interrupt these means, where the results fall short of expectations. But for such a decision to be made, account will have to be taken of the reasonable wishes of the patient and the patient’s family, as also of the advice of the doctors who are specially competent in the matter. The latter may in particular judge that the investment in instruments and personnel is disproportionate to the results foreseen; they may also judge that the techniques applied impose on the patient strain or suffering out of proportion with the benefits which he or she may gain from such techniques. – It is also permissible to make do with the normal means that medicine can offer. Therefore one cannot impose on anyone the obligation to have recourse to a technique which is already in use but which carries a risk or is burdensome. Such a refusal is not the equivalent of suicide; on the contrary, it should be considered as an acceptance of the human condition, or a wish to avoid the application of a medical procedure disproportionate to the results that can be expected, or a desire not to impose excessive expense on the family or the community.

(source: Declaration on Euthanasia – May 5, 1980)

Now, an important decision to be made, as we balance “reasonable wishes” and “advice,” is whether the means being considered are “normal means” themselves.  I would not consider radical treatment such as chemotherapy “normal means,” but I can imagine a situation in which I was persuaded otherwise.  (I’m not the doctor in the room.)

I think it is important to understand that, before becoming morally certain that a choice to refuse one treatment in favor of another is a choice of death rather than life, the patient will have to either have a very strong bond with the doctor, or will have to wade through radically divergent materials such as these in an effort to become informed.  If the doctor is in a position to build the educational and personal information and trust bond necessary to bring the patient to moral certainty that life lies one way, death the other, then the doctor should do that–and had better be right.

If, however, the doctor will feel compelled to admit “there are no certainties, here,” then the question of treatment remains a recommendation–even a strong one!–and in either case the responsibility remains with the patient. The one place the doctor would definitely be compelled to intervene if possible (pace House, M.D.) and where, if the matter came before it, the regime would also be obligated to intervene, is where the decision clearly comes down to “I see normal means leading to life, and I choose death instead” on all accounts.  The rest is a series of balancing judgments about the best way to live.

And longer life is not necessarily better life.  I am much more concerned about how I die than how long I live.  A doctor who chose to support a patient’s decision to live as well as possible, as long as possible, but not to take on burdens that the patient does not seem able to bear in order to save that patient’s life–well, such a doctor had better be right, too.  But it’s not unthinkable to make such a choice.

In re the Angelic Doctor’s contribution to the legal question:

As Augustine says (De Lib. Arb. i, 5) “that which is not just seems to be no law at all”: wherefore the force of a law depends on the extent of its justice. Now in human affairs a thing is said to be just, from being right, according to the rule of reason. But the first rule of reason is the law of nature, as is clear from what has been stated above (Question [91], Article [2], ad 2). Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.

But it must be noted that something may be derived from the natural law in two ways: first, as a conclusion from premises, secondly, by way of determination of certain generalities. The first way is like to that by which, in sciences, demonstrated conclusions are drawn from the principles: while the second mode is likened to that whereby, in the arts, general forms are particularized as to details: thus the craftsman needs to determine the general form of a house to some particular shape. Some things are therefore derived from the general principles of the natural law, by way of conclusions; e.g. that “one must not kill” may be derived as a conclusion from the principle that “one should do harm to no man”: while some are derived therefrom by way of determination; e.g. the law of nature has it that the evil-doer should be punished; but that he be punished in this or that way, is a determination of the law of nature.

Accordingly both modes of derivation are found in the human law. But those things which are derived in the first way, are contained in human law not as emanating therefrom exclusively, but have some force from the natural law also. But those things which are derived in the second way, have no other force than that of human law.

(source: Summa Theologica)

These principles are susceptible of very broad application, and I commend that work to each of you.

I think the family seems clearly to be in the right on the following point, and that this argument should also lead us to question the use of DCF & equivalents as the proper means of enforcing these laws:

The family claims that, by allowing DCF to use their judgment over that of Cassandra’s family, without the finding of incompetence on their behalf, the forced treatment violates the family’s constitutional rights. Additionally, they claim that the state should recognize the “mature minor doctrine” that requires that a court first determine if a minor is not adequately mature enough to be allowed to make medical decisions on her own.

(source: Connecticut teen with cancer forced by state to undergo chemo treatments | Fox News)

DCF is not more qualified to decide what treatment is appropriate than the patient, her family, or her doctors, for one thing.  Beyond that, if this is a matter of intervening to uphold an obligation in justice (for the patient not to intentionally choose death where normal means would lead to life), then justice cannot be accomplished without establishing the patient’s incompetence or the patient’s choice of death, first.  In an emergency case, then justice might need to be done by those who are able and adjudicated later (I would likely support use of police/DCF to require a parent to permit a trauma surgeon to sew up an artery).  This is not an emergency case; the usual means of justice should be used.

Let me close with a small anthology of related discussions, mostly micro-quoting just to get you the links:

The key principle in this statement is that one does not will to cause death. When a person has an underlying terminal disease, or their heart, or some other organ, cannot work without mechanical assistance, or a therapy being proposed is dangerous, or has little chance of success, then not using that machine or that therapy results in the person dying from the disease or organ failure they already have. The omission allows nature to takes its course. It does not directly kill the person, even though it may contribute to the person dying earlier than if aggressive treatment had been done.

(source: End-of-Life Decisions)

In June, 1995 Joseph Cardinal Bernardin was diagnosed with pancreatic cancer.  This diagnosis was quickly followed by surgery, and then a regimen of chemotherapy and radiation.  He remained free of cancer for fifteen months.  Then, in late August of 1996, it was discovered that the cancer had spread to his liver and was inoperable.  At this point, a different kind of chemotherapy was begun.  However, in mid-October the Cardinal made the decision to stop receiving chemotherapy.  He did this because the chemotherapy was not stopping the growth or diminishing the size of his tumors as it was supposed to do, and because of the serious side effects he was experiencing from the chemotherapy treatment.  The cancerous tumors continued to grow until they brought about his death on November 14, 1996. (Joseph Cardinal Bernardin, The Gift of Life)

(source: Joseph Cardinal Bernardin)

When engaging in moral debate on matters of faith, it is important not to focus exclusively on one tenet of faith to the exclusion of others. In debating the use of feeding tubes–or of any mode of treatment for that matter–one must not ignore the concepts of finitude and stewardship by focusing only on the sanctity of life.

(source: Ethics & Life’s Ending by Robert D. Orr & Gilbert Meilander | Articles | First Things)  [I don’t agree 100% with Orr, but I think he has the better of this interaction.]

A treatment or life-sustaining measure can be extraordinary because it is too painful, frightening, hazardous or disruptive for the patient, or because it is financially too burdensome to the patient, family, hospital or health service. A treatment can also be too burdensome in other ways to those who are caring for the patient – for example, it can take up time or use facilities which are urgently needed by patients who would benefit more.

(source: Ordinary and Extraordinary Means of Prolonging Life)  [I’m uncomfortable with that last sentence, but I cannot deny that there are some situations in which it must be true.  I think an emergency/planning distinction might be good, here.]

Generally speaking, the patient is not obligated to use extraordinary means; he/she may decide to do so. Such a course could constitute an act of heroic virtue. Examples might include a treatment that requires travel to a distant location in a very weakened condition. Also, some types of chemotherapy could cause overwhelming malaise and fatigue so that the treatment, from the patient’s perspective, would be far worse than the disease.

(source: www.ewtn.com/vexperts/showmessage_print.asp?number=520186&language=en)

5. You will waste your cancer if you think that “beating” cancer means staying alive rather than cherishing Christ.

(source: Don’t Waste Your Cancer | Desiring God)

I happened once upon a petition from an old, old version of the Great Litany: “From an unprepared and evil death, deliver us good Lord.” I suspect any notion of this has gone out of fashion, a “prepared” death. Most of us would no longer regard an “unprepared” death as evil. Most of us, my guess, would prefer a sudden, relatively painless death, altogether unexpected and unanticipated. Go to bed one night and wake up dead; hardly a problem.

One can avoid lot of troubles that way. We would not, it comes to me, burden our loved ones with pestering questions around the “end of life” choices they may confront. But it was exactly such choices the Great Litany seemingly demanded.

We may pray only as the psalm has it. “Teach us,” the psalmist begs, “to number our days aright, that we may gain a heart of wisdom.” And then, not unnaturally, the very next verse: “Relent, O Lord! How long will it be? Have compassion on your servants.”

(source: Death, Again | Russell E. Saltzman | First Things)

Father Neuhaus said to me nonchalantly on the telephone one day: “All of us are dying.” At first I thought he was belaboring the obvious, but soon I learned that it was his way of telling me with crafted delicacy that he had only a few weeks to live. He had already taken the temperature of mortality in his book, As I Lay Dying , in which he said, “I believe that one learns to die, not by philosophizing, but by dying.” In the graceful way he died, he made his own body, stripped of its letters and gilding, an elegant second edition which we should call As I Lay Rising .

(source: He Is Not Here | Fr. George Rutler | First Things)

Traditionally, Catholics have prayed for the grace of a happy death: From a sudden and unprovided death, deliver us, O Lord. Now, advances in modern medicine increasingly pose the challenge of coping with a terminal illness which may last months or even years. Rather than worrying only about a sudden death, many today confront fears of a prolonged and debilitating illness, of being a burden on others, and of facing a path possibly marked by suffering.iii

(source: John Paul II: Dying with Dignity)