AABHL Conference - How Should We Decide?

The Australasian Association of Bioethics and Health Law (AABHL) will hold its annual conference in Perth from the 2nd-4th of October 2014, at the University of Western Australia. The theme of the conference is ‘How Should We Decide?’

The intersections of health, bioethics and law raise challenging questions.  

How do patients decide on their treatment or on participation in research? 

• How do substitute decisions makers make decisions? 


• How do clinicians decide on the treatment to offer


• How do governments make decisions on health policy and funding priorities?  


• Who makes decisions about the allocation of scarce resources?  


• How do we protect the rights of the vulnerable


• How do courts exercise their power to protect vulnerable people in health care settings?

Advances in medical science and technology, increasingly sophisticated diagnostic and therapeutic interventions and changing social circumstances reveal new ethical dilemmas.  How do we go about making sound decisions in the face of these challenges?

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Association for Practical and Professional Ethics - End-of-Life Sessions ar Annual Conference

The 23rd annual international conference of the Association for Practical and Professional Ethics will be held in Jacksonville, Florida from February 27 through March 2, 2014.  There are plenty of end-of-life policy and ethics sessions:















Incentivizing Organ Donation:  A Response to Calls for Iterative Policy Implementation

James Rhea

University of South Carolina



No Last Resort:  Pitting the Right to Die Against the Right to Medical Self-determination

Michael Cholbi, Ph.D.

California State Polytechnic University - Pomona



There is No Logical Slippery Slope from Voluntary to Non-voluntary Euthanasia

Steven Daskal, Ph.D.

Northern Illinois University



The Unrepresented Patient in the ICU

Annette Mendola, Ph.D.

University of Tennessee Medical Center



Best Interests and Burdens: The Role of the Burden of Care in Withdrawing Treatment from Seriously Disabled Infants

Matthew Tedesco, Ph.D.

Beloit College

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Common Palliative Care Practices Misconstrued as "Murder" and "Killing"

This week, a British paper reports that Shanna Hodge has endured abusive messages labeling her a "baby killer" after making the agonizing decision to turn off her dying son's life support system. She even tried to take her own life following her abuse and is now fearful to walk down the street and answer her phone.



While sad and disturbing, this story reminded me of something even more disturbing:  a March 2012 study in the Journal of Palliative Medicine.  



It found that even healthcare professionals accused each other of "murder" or "killing" when engaged in even commonly used palliative care practices.

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First Ever Global Atlas Identifies Unmet Need for Palliative Care

Only 1 in 10 people who need palliative care - that is medical care to relieve the pain, symptoms and stress of serious illness - is currently receiving it. This unmet need has just been mapped for the first time in the Global Atlas of Palliative Care at the End of Life, published jointly by the World Health Organization (WHO) and the Worldwide Palliative Care Alliance (WPCA).



What Is Palliative Care?

Palliative care is more than just pain relief. It includes addressing the physical, psychosocial and emotional suffering of patients with serious advanced illnesses and supporting family members providing care to a loved one.



Who Needs Palliative Care?

About one third of those needing palliative care suffer from cancer. Others have progressive illnesses affecting their heart, lung, liver, kidney, brain, or chronic, life-threatening diseases including HIV and drug-resistant tuberculosis.



It is estimated that every year more than 20 million patients need palliative care at the end of life. Some 6% of these are children. The number of people requiring this care rises to at least 40 million if all those that could benefit from palliative care at an earlier stage of their illness are included. Hospice and palliative care often encompasses some support to family members,which would more than double care needs.



In 2011, approximately 3 million patients received palliative care, the vast majority at the end of their life. Although most palliative care is provided in high-income countries, almost 80% of the global need for palliative care is in low- and middle-income countries. Only 20 countries worldwide have palliative care well integrated into their healthcare systems.



What Must Be Done?

The Atlas calls on all countries to include palliative care as an essential component to every modern healthcare system in their moves towards universal health coverage.This means addressing barriers such as:

1.  lack of policies recognizing palliative care and the need for care both at the end of life and during progressive illnesses;


2. lack of resources to implement services, including access to essential medicines, especially pain relievers;


3. lack of knowledge of health care professionals, community volunteers and members of the public about the benefits of palliative care.

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$10 Million for Palliative Care Research Cooperative Group

Amy Abernethy

Duke University and the University of Colorado schools of medicine have received a $10 million grant from the National Institute for Nursing Research (NINR), to continue the development of the Palliative Care Research Cooperative Group (PCRC) over the next five years.



The consortium addresses national research priorities in palliative care and end-of-life by enhancing the quality and efficiency of research and educating doctors and patients about best practices. The goal is to promote research that leads to better ways of relieving suffering and improving quality of life for patients who have advanced, potentially life-limiting illnesses.



As the nation’s first cooperative group focused on palliative care research, the PCRC was established in 2010 with initial funding from the NINR/NIH, and now includes more than 20 member institutions across the nation.

“We intend for the PCRC to set the gold standard for multisite palliative care and end-of-life research. . . .  Progress under the initial grant has catalyzed an outpouring of broad interest, motivation, support, and enthusiasm. The recent award will support efforts to build the cooperative group into a more robust, enduring resource for research support and training.” 

Amy Abernethy, M.D. Ph.D., director of the Center for Learning Health Care at Duke and PCRC Co-Chair. 

“We will develop key resources and infrastructure that nurture, enlist, and harness investigator and site interest. . . .  This will enable us to promote the conduct and translation of high-quality, collaborative, patient-centered palliative care and end-of-life research.” 

Jean Kutner, M.D., MSPH, professor of medicine at the University of Colorado School of Medicine and PCRC Co-Chair. 



Both co-chairs oversaw the group’s first multi-site clinical trial designed to determine if discontinuing cholesterol-lowering medications when patients near the end of life alters survival and quality of life, or leads to any adverse consequences. This trial completed enrollment in May 2013 at 15 U.S. sites. Results are expected to be published in upcoming months.

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UK Court of Appeals to Hear Tracey Case on DNAR without Consent or Consultation

In February 2011, Janet Tracey was not consulted before a "do not resuscitate" DNR notice was placed on her medical records at Cambridge University Hospital.



Her family later brought a lawsuit.  But in December 2012, High Court Justice Davies held that the failure to inform or involve Janet had "minimal causative effect," as the notice was cancelled five days later when her family objected, and not acted upon.  The judge also found that a second notice, which followed three days afterwards and two days before Mrs Tracey's death, was put in place with the agreement of her family.



Justice Davies ruled that it would be neither "appropriate nor proportionate", in the light of those limited findings of fact, to have a judicial review hearing on the legal issues.  She refused permission to appeal.



But Tracey pursued the application directly with the Court of Appeal, to clarify whether there is a legal duty to inform patients with capacity whether a DNR has been placed on their notes and whether they have any right to be consulted about it.  



On Friday, the Court of Appeal agreed to hear the case.  And instead of remanding it, the Court of Appeal agreed to hear the case itself.

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Online Symposium on the Munoz and McMath Cases

I a participating on an online symposium on the Munoz and McMath cases at the Union - Mt. Sinai Bioethics program blog.  



My latest post concerns JPS Hospital's statutory interpretation argument on appeal.  Other participants include:

• Alexander M. Capron, LL.B. -- University Professor, Scott H. Bice Chair in Healthcare Law, Policy and Ethics, Professor of Law and Medicine, Keck School of Medicine, Co-Director, Pacific Center for Health Policy and Ethics


• Michelle Meyer, J.D., Ph.D. -- Assistant Professor of Bioethics and Director of Bioethics Policy, Union Graduate College–Icahn School of Medicine at Mount Sinai Bioethics Program


• David Orentlicher, M.D., J.D. -- Samuel R. Rosen Professor and Co-Director, Hall Center for Law and Health, Indiana University Robert H. McKinney School of Law


• Thaddeus Mason Pope, J.D., Ph.D. -- Director, Health Law Institute, and Associate Professor of Law, Hamline University School of Law


• Katherine Taylor, J.D., Ph.D. -- College of Nursing and Health Professions, Drexel University


• Alan Jay Weisbard, J.D. -- Professor Emeritus, University of Wisconsin, and Executive Director, New Jersey Bioethics Commission (1987-90)


• James Zisfein, M.D. -- Chief, Division of Neurology, and Chair, Ethics Committee, Lincoln Medical Center

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French Court Rules Continued Treatment for Lambert Is Not Therapeutic Obstinacy

In 2005, the French Parliament enacted Law 2005-370, popularly known as Leonetti's Law.  Article 1, like recent Spanish laws, prohibits therapeutic obstinacy:

“The acts of prevention, investigation or treatment must not be continued with unreasonable obstinacy. When they seem useless, disproportionate or to have no other effect than solely the artificial preservation of life, they can be withheld or withdrawn. In that case, the doctor safeguards the dignity of the dying and ensures the quality of their life.”  

Clinicians at CHU Reims determined that this Article was triggered in the case of Vincent Lambert, a 37-year-old who is in a minimally conscious state as the result of a 2008 road accident.  



While Lambert's wife agreed with clinicians (and had evidence that his wishes would be for comfort measures only), his parents opposed the withdrawal of life-sustaining treatment.



The Administrative Court of Chalons-en-Champagne agreed with the parents, concluding that Article 1 was not triggered.  (Le Monde)

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Texas, Munoz, and Mandatory Organ Donation

Cornell University law professor Sherry Colb has posted a detailed and compelling legal analysis of the ongoing Munoz v. JPS Hospital (Tarrant County) case.  



My favorite parts, which I have been meaning to write-up myself are these:

"Unless our law and society undergo a major evolution toward Good Samaritanship, it is thus plain to me that Marlise Munoz must be permitted to have her life support disconnected."

"[T]he government may not compel one person to receive unwanted medical treatment in order to promote someone else’s interests. Otherwise, the government could compel the donation of blood, bone marrow, and kidneys, to save others’ lives. Yet medical treatment virtually always requires consent."

A hearing in the case is scheduled at 3:15pm this Friday.

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Does Withdrawing Life-Sustaining Treatment Cause Death or Allow the Patient to Die?

Andrew McGree, at QUT Law, has just published "Does Withdrawing Life-Sustaining Treatment Cause Death or Allow the Patient to Die?" in Medical Law Review.  Here is his abstract:



This article discusses recent arguments of Franklin Miller and Robert Truog about withdrawal of life-sustaining treatment and causation. The authors argue that traditional medical ethics, and the law, are mistaken to take the view that withdrawal merely allows the patient to die, rather than causing the patient's death, describing such a view as ‘patently false’. They argue that the law's continued position to the contrary stems from a moral bias, resulting in the moral and legal fiction that withdrawal does not cause death but lets the patient die. In so arguing, Miller and Truog join a long line of academic criticism of the law that extends back to the seminal decision of Airedale NHS Trust v Bland [1993] AC 789 (HL) and beyond. 



In this article, I take issue with these claims. I argue that there are reasonable grounds upon which traditional medical ethics and the law can regard withdrawal of life-sustaining treatment as allowing the patient to die rather than causing death, and so the authors' claims that such a view is patently false cannot be sustained. 



I then tease out the implications of my conclusions for the authors' claim that there is not such a great distinction between withdrawal of life-sustaining treatment, euthanasia, and assisted dying. I conclude by discussing some possible objections to my own view.

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Jahi Mcmath and Medical Futility: California Law on Therapeutic Obstinacy and Non-Beneficial Treatment

"Jahi Mcmath and Medical Futility: California Law on Therapeutic Obstinacy and Non-Beneficial Treatment." 



This is the title of one of the two presentations that I am making at UCLA next month.  I am delighted to be part of UCLA's recent series of rather eminent speakers on end-of-life ethics (e.g. Tim Quill, Randy Curtis).

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Supreme Court of Canada will Hear Carter Assisted Suicide Case

Yesterday, the Supreme Court of Canada granted the application for leave to appeal in Carter v. Attorney General.



In short, Ms. Kay Carter and Ms. Gloria Taylor both suffered from intractable and progressive diseases and are now deceased. They had joined with the others in bringing a civil claim before the British Columbia Supreme Court challenging the constitutionality of the Criminal Code provisions against assisted suicide and euthanasia, (specifically, sections 14, 21(1)(b), 21(2), 22, 222(1)-222(5), and 241). They focused their case, however, on section 241, which prohibits aiding another person to commit suicide. 



Carter and Taylor succeeded at trial.  But a majority of the Court of Appeal, however, allowed the Attorney General of Canada’s appeal.



In 1993, the Supreme Court of Canada held that section 241 did not infringe on Charter rights.  Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.  Hopefully, the Court will overrule Rodriguez.

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Erick Munoz Should Sue JPS for Damages

In yesterday's Los Angeles Times, Art Caplan and I argued that JPS hospital is wrong to interpret the Texas Advance Directives Act to require continued ICU interventions for Marlise Munoz contrary to her known wishes and preferences.  



Now that the records confirm that Marlise Munoz is dead, I want to take my argument one step further.  JPS' interpretation is so unreasonable that it should be subject to damages for negligent infliction of emotional distress.  In at least one case (Strachan v. JFK Hospital), a family obtained a $70,000 NIED jury verdict when the hospital did not timely turn over a family member's body.  Moreover, quite a few successful NIED claims concern the mistreatment or mishandling of dead bodies.     



Right now, Erick Munoz's lawsuit only seeks declaratory and injunctive relief.  But he might consider amending to add a claim for money damages.

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Another UK Inquest over Covert Unilateral Withdrawal of Life Support

The British coroners are conducting yet another inquest over yet another patient whose treatment was

withdrawn without either family consent or knowledge.  This one concerns Robert Goold, who died at Cambridge's Addenbrooke Hospital last February.  



One physician testified:  “The team medical view was that it would not be appropriate for resuscitation if he had a cardiac arrest, that was clear to the family. He was unlikely to ever recover to the level of his previous functioning, he may have required full time nursing care for the rest of his natural life. It was my understanding from previous discussions that there was an expressed feeling he did not wish for that to occur.”



But Senior coroner David Morris asked:  “Some box was ticked for no food or drink, you didn’t sit down with the family and say right I have made the decision to go down this pathway?”  The physician responded: “not specifically no.”

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New Mexico Legalizes Physician Aid in Dying

Physician plaintiffs and lawyers

Today, New Mexico Second Judicial District Judge Nan Nash ruled that the ability of competent, terminally ill patients to choose aid in dying is a fundamental right under the state constitution. I posted a copy of the order and opinion here.



The court held that competent, terminally ill patients have a fundamental right under the New Mexico Constitution to seek a physician's help in getting prescription medications if they want to end their lives on their own terms



The lawsuit had the support of the American Civil Liberties Union of New Mexico, Compassion & Choices, and the New Mexico Psychological Association. The plaintiffs argued that assisted suicide and "aid in dying" for terminally ill patients were fundamentally different.



New Mexico now joins Hawaii, Montana, Oregon, Vermont, and Washington.

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Australian Medical Association Asks When -NOT- to Prolong Life

Brisbane's Courier-Mail reports that the Australian Medical Association has called for discussion of when medical science should NOT prolong the lives of the terminally ill. 



AMA President Steve Hambleton says it is important for families and patients to have a better understanding of the realistic outcome of treatments, including the use of drugs that might extend life for little more than weeks, but at the cost of potentially debilitating side effects such as vomiting, seizures or even blindness.



But the debate will be challenging.  Grattan Institute health program director Stephen Duckett argues that Australians seemed to have an unrealistic view of dying, claiming they are given the impression that "we're going to be immortal."  At the same time he says he believes many health professionals "think they can save everybody."  The result is a "conveyor belt" of healthcare, with the elderly being sent from nursing homes to emergency wards and given too many interventions. 



A Courier-Mail editorial rightly argues:  "Death and dying are never easy topics to confront. But continuing advances in medical science are likely to make the issues being raised by the AMA even more pressing in years to come, which is why this is a debate we have to have now rather than later, as challenging as it might be at so many levels."

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Right to Die: The Law of End-of-Life Decisionmaking

I am pleased and delighted to join law professors Alan Meisel and Kathy Cerminara as a co-author on the Right to Die: The Law of End-of-Life Decisionmaking.  This legal treatise is THE authoritative reference source on end-of-life medical matters.



The publisher, Wolters Kluwer, provides the following description: 

The Right to Die, Third Edition analyzes the statutory and case law surrounding the profound issues of end-of-life decisionmaking. Whether the situation calls for long-term planning or quick, unexpected decisionmaking, this cogent, one source treatise guides you through all the available channels for helping your clients reach the ultimate resolution.

This comprehensive edition guides general practitioners, elder law, health law, and health care professionals through complex issues pertaining to passive and active hastening of death and such subsequent statutes as The Oregon Death with Dignity Act.

The first edition of The Right to Die was published in 1989.  The second edition was published in 1995.  The third edition was published in 2004.  The treatise now spans 1400 pages and is updated annually.  It is divided into thirteen chapters:

1. What is the Right to Die


2. Nature and Sources of the Right to Die


3. The Appropriate Forum for End-of-Life Decisionmaking: Courts or Clinical Settings


4. Decisionmaking Standards for Incompetent Patients


5. Limitations on End-of-Life Decisionmaking


6. Application of End-of-Life Principles to Particular Treatments and Illnesses


7. Advance Directives


8. Surrogate (Family) Decisionmaking Statutes


9. Decisionmaking for Children


10. Decisionmaking for Handicapped Newborns


11. Civil Liability


12. Criminal Liability: Assisted Suicide and Active Euthanasia


13. The Problem of 'Futile' Medical Treatment

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Medical Board of California Should Investigate Mcmath Clinicians

Jahi Mcmath died on December 12, 2013.  Yet, in just the past few days, clinicians inserted a feeding tube and tracheotomy tube at the "undisclosed facility" to which Mcmath was transferred from Oakland Children's Hospital.  

Dr. Michael Kamrava

The Medical Board of California should investigate the clinicians that inserted these tubes.  Performing such procedures under these circumstances is way outside the prevailing standard of care.  



The case of Dr. Michael Kamrava is instructive.  In June 2008, the California fertility doctor implanted a dozen embryos in Nadya Suleman (”Octomom”), resulting in the birth of eight babies.   Suleman demanded all twelve embryos that were available for the procedure and “would not accept anything less.”  Dr. Kamrava “did not think he could refuse to transfer less embryos than those to which N.S. would agree because he believed at the time that the ultimate decision should be largely driven by the patient's wishes.”  He felt “bound to honor her wishes.”   



But the California Medical Board revoked Kamrava's license.  It found gross negligence.   The Board held that while it is appropriate to consider patient wishes, a physician cannot be “oblivious to standards of care.”  It concluded that Dr. Kamrava failed to “exercise sound judgment.”  In re Kamrava,
No. 06-2009-197098 (Medical Board of California, 1 June 2011).  A similar result might obtain for clinicians in the Mcmath case.

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Marlise Munoz: Pregnant and Dead - Anderson Cooper 360

Last night, Anderson Cooper discussed the Marlise Munoz case with 

• Art Caplan, Head of Medical Ethics at New York University's Langone Medical Center


• Legal Analyst Sunny Hostin


• Criminal Defense Attorney Mark Geragos.

Art Caplan was both articulate and entertaining as always.  This was a good discussion about the wisdom and legality of the Texas Advance Directives Act which disallows stopping life sustaining treatment for an incapacitated pregnant woman.

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Just Published: Freedom of Choice at the End of Life: Patients’ Rights in a Shifting Legal and Political Landscape

The New York Law School Law Review has just published a new issue:  "Freedom of Choice at the End of Life: Patients’ Rights in a Shifting Legal and Political Landscape" Volume 58, Issue 2 (2013-2014).



The issue is based on the Freedom of Choice at the End of Life: Patients’ Rights in a Shifting Legal and Policy Landscape symposium held at New York Law School in November, 2012.  The symposium was co-sponsored by the Justice Action Center at New York Law School.  Videorecordings of the symposium panels are available here.  Photos from the event are available here. Click here to view videorecordings of the event in iTunes.

• Introduction by Peter J. Strauss


• Right-to-Die Cases: A New York Historical Perspective by Sol Wachtler


• From Schiavo to Death Panels: How Media Coverage of End-of-Life Issues Affects Public Opinion by Sherrie Dulworth


• Health Justice Denied or Delayed at the End of Life: A Crisis Needing Remedial Action by David C. Leven


• Advance Directives, Dementia, and Eligibility for Physician-Assisted Death by Paul T. Menzel


• The Limits of Autonomy: Force-Feedings in Catholic Hospitals and in Prisons by Ann Neumann


• Context Matters: Disability, the End of Life, and Why the Conversation Is Still So Difficult by Alicia Ouellette


• Dispute Resolution Mechanisms for Intractable Medical Futility Disputes by Thaddeus Mason Pope


• A New Life for Wrongful Living by Nadia N. Sawicki


• Give Me Liberty at My Death: Expanding End-of-Life Choice in Massachusetts by Kathryn L. Tucker

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CANHR v. Chapman - Decision Making for Unbefriended Patients

A few weeks ago, I blogged about a new case filed in Alameda County Superior Court, CANHR v. Chapman.  



This case challenges the California mechanism for making treatment decisions for unbefriended patients in long-term care facilities.  



A case management conference is scheduled for next Tuesday, January 15, before Judge Evelio Grillo (Dept. 31), the same judge who handled the Jahi Mcmath case.

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Can a Minnesota Guardian Consent to Stopping Life Sustaining Treatment?

Can a Minnesota Guardian Consent to Stopping Life Sustaining Treatment?  The Minnesota Supreme Court will be tackling this question early next month in In re Tschumy.



I have described the background and procedural history of the case here.  The Minnesota Supreme Court has scheduled en banc oral argument for February 3, 2014.  

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Should the California State Bar Discipline Jahi Mcmath's Lawyer?

Sam Singer, the spokesperson for Oakland Children's Hospital relayed the following to the San Jose Mercury News:

"Sadly ... Mr. Dolan is not being truthful to the public or his clients. . . .  When he says his 'medical team' wants to feed her body so her brain will have the optimum nutrients, he is either being purposely deceptive or ignorant. In either case, he is perpetuating a sad and tragic hoax on the public and the McMath family."

These are pretty serious allegations.  If true, this could constitute a violation of the California Rules of Professional Conduct.  Perhaps the Mcmath / Winkfield family might want to review the consumer protection information available here.

    

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Compassion & Choices of Minnesota Meeting

COMPASSION
& CHOICES

Of
MINNESOTA

Compassion in dying        End-of-life choices

_________________________________________________________________

It is now legal in four states for terminally ill,
mentally competent adults to get from their physicians a prescription for a
life-ending medication that will bring a quick and peaceful end to suffering.
We want Minnesotans to have the same right to Death with Dignity.

LEARN
MORE & GET INVOLVED

Attend our GET INVOLVED meeting in January to get the
information and tools you need to understand and support end-of-life choices,
death with dignity and the work of Compassion & Choices.

When:  Saturday, January 18, 2014,

  12:00 noon – 2:15 pm

Where:  Roseville Public Library

           2180 N
Hamline Ave, Roseville, MN 55113

The library is a block south of Hwy 36 - take the Hamline
exit.

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ASBH 2014 - Update

The American Society of Bioethics & Humanities (ASBH) will hold its 16th annual meeting from October 16-19 in San Diego.  



As a member of the program committee (along with Rebecca Garden and Sarah Shannon), I wanted to share two updates about the meeting.



Plenary Speakers



We have confirmed three plenary speakers:

• Patricia Benner, R.N., Ph.D, FAAN, FRCN, a preeminent nursing educator and author of From Novice to Expert: Excellence and Power in Nursing Practice. 


• Xóchitl Castañeda, Ph.D., Director of Health Initiative of the Americas, School of Public Health, University of California Berkeley


• Karla Holloway, M.A., M.L.S., Ph.D., James B. Duke Professor of English & Professor of Law at Duke University, an expert on ethics, law, literature, gender, and culture.

Conference Theme



The theme for the conference is "Interprofessional & Inclusive: Bioethics & Humanities?"  Here is the description:  

Bioethics and the health humanities purport to offer guidance on how to act ethically in collaboration with patients, their families and support circles, and within the health care system. As fields of study and practice, they call attention to power and disparities, from the classroom to the clinic. They expose injustice and act to right wrongs.   

But how well do the health humanities and bioethics truly recognize power and privilege?  They are multi-disciplinary, but are they interprofessional?  They are inclusive, but how well do they represent differences in identity, such as race and ethnicity, disability, sexuality, gender, and socio-economic status?   

This Annual Meeting is dedicated to three questions: (1) How inclusive and interprofessional are bioethics and the health humanities? (2) How inclusive and interprofessional can we become? (3) How can we improve practice, education, and health for all, through attention to inclusion and interprofessionalism?

We look forward to seeing you in San Diego in October.

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Mcmath / Winkfield v. Oakland Children's Hospital: Settlement Agreement

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Bioethics Committees: Consultation, Mediation, or Adjudication?

I recently chaperoned a 6th grade field trip to the Minnesota State Capitol.  On the ceiling of the Supreme Court are four paintings, each representing an aspect of law:  Moses, Confucius, Socrates, and Count Raymond of Toulouse.  Raymond's painting is entitled "The Adjustment of Conflicting Interests" (1903).  

The scene is of Raymond standing before the papal legate in 1208.  Raymond argued successfully for city freedoms, extended exemptions from taxation, and protection of the communal territory from the church.  As the title suggests, Raymond acted as a mediator.  He wore a sword.  He did not draw it.  But the sword is clearly visible.



In a forthcoming article in the Cardozo Journal of Conflict Resolution, I argue that healthcare ethics committees are like Raymond.  They typically mediate disputes and facilitate communication.  But state governments have been giving healthcare ethics committees increasing power (swords).  



Like Raymond, even when the ethics committee's "sword" is not drawn, the parties can still clearly see it.  The result:  the dispute resolution of healthcare ethics committees often looks more like adjudication than mediation.

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Veatch Says Let Jahi Mcmath's Parents Choose their Own Definition of Death

Eminent bioethics expert Robert Veatch argues that the parents of Jahi Mcmath should get to choose their own definition of death.  

He asks why "American law continues to force one standard of death on Jahi's parents and others who have plausible alternative definitions."  After all, Veatch argues, "the choice among the options is not a cut-and-dried matter of medical science."  "Why not let people have some choice based on their personal religious and cultural views?"

Indeed, California could have followed New Jersey and required that "the death of an individual shall not be declared upon the basis of neurological criteria . . . when the licensed physician authorized to declare death, has reason to believe, on the basis of information in the individual's available medical records, or information provided by a member of the individual's family or any other person knowledgeable about the individual's personal religious beliefs that such a declaration would violate the personal religious beliefs of the individual."

But California did not follow New Jersey.  Indeed, in 2008, California revisited its 1982 adoption of the Uniform Determination of Death Act.  Yet, while perfectly aware of the New Jersey rule, California did not seek to alter or amend those requirements.  It simply added a requirement for a "reasonably brief period of accommodation."

I am not sure that the evidence establishes that Jahi Mcmath would satisfy the New Jersey rule, even if it were adopted in California.  But the fact remains that it has not.

Veatch is correct to observe that, in any case, the determination of death debate is beside the point.  Many California hospitals have futility policies that would authorize the removal of cardiopulmonary support even on a living patient in Jahi Mcmath's devastated and irreversible condition.  

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New Defense of VSED - VRFF as Clinically & Ethically Legitimate Means to Hasten Death

In contrast to the extensive legislative and media focus on physician aid-in-dying, there remains little attention on another good path to hasten death: voluntarily stopping eating and drinking (VSED) aka Voluntary Refusal of Food and Fluid (VRFF).  (But see my legal analysis.)



Helping to address the shortfall, two Swiss authors published a piece in the December issue of the German Scientific Journal of Nursing Pflege (Care).  Here is the abstract:



VRFF is one possibility for patients in palliative situations to hasten death and avoid further suffering. By means of a mapping literature review this article describes the medical, nursing, ethical and legal perspective of care for people who wish to hasten death using VRFF. The results show that the wish to die is affected by psychological, social, spiritual and physical factors. 



VRFF is a little-known, legal and independently viable method to hasten death. Reducing fluid intake to 40 ml daily, the dying process takes one to three weeks. VRFF can be regarded as a natural death, foregoing treatment or as suicide. In contrast to physician assisted suicide or euthanasia, patients dying by VRFF experience a "natural" dying process and the de cision is reversible in the first few days. 



As authority to act lies with the person wishing to die professionals and family caring for the dying are practicing palliative care, as opposed to assisted suicide or euthanasia. Professionals and family involved in the decision-making process are confronted with various ethical problems. Further research concerning VRFF and its implications for practice is necessary.

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Mcmath Legal Challenges to Determination of Death Law Will Fail

In both the state and federal lawsuits, the Mcmath / Winkfield family is challenging the constitutionality of the Determination of Death Act.  This legal commentator is correct that such challenges are very likely to fail.

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New Hampshire Bill for Default Healthcare Surrogates

New Hampshire is one of a handful of states that has no default surrogate statute.  Therefore, when an incapacitated patient has no available healthcare agent, only through court appointment of a guardian will there be a clearly authorized healthcare substitute decision maker.

Consequently, I was pleased to see the recent introduction of H.B. 1434.  Technically, it was pre-introduced.  It will be formally introduced on January 8, 2014.  The new chapter "specifies a process to establish a surrogate decision-maker when there is no valid advance directive or a guardian."

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