Lawrence J. Nelson

Forgoing medically provided nutrition and hydration in pediatric patients.

D iscussion of the ethics of forgoing medically provided nutrition and hydration tends to focus on adults’ rather than infants and children.2 Many appellate court decisions address the legal propriety of forgoing medically provided nutritional support of adults: but only a few have ruled on pediatric cases that pose the same issue? The cessation of nutritional support is implemented most commonly for patients in apermanent vegetative state (often referred to as persistent vegetative state (hereinafter ccPVS”)). An estimated 4,000 to 10,000 American children are in the permanent vegetative state, compared to 10,000 to 25,000 adults2Yet the dearth of literature, case reports: and court decisions suggests that physicians and f d i e s of pediatric patients stop medically provided nutrition or seek court orders much less frequently. More important, empirical studies indicate that physicians who treat children are reluctant to discontinue medically provided nutrition, yet are willing to forgo other forms of life-sustaining treatment. A survey of members of the Child Neurology Society found that 75 percent “never” withhold fluid and nutrition from infants and children in a permanent vegetative state.’A 1990 unpublished survey of the Pediatric Section of the Society for Critical Care Medicine indicated that 58 percent of the pediatric intensivists who responded would not withdraw tube feedings from a four-month-old child who was comatose, unresponsive, and ventilator-dependent one month after an unexplained cardiorespiratory arrest, even when the parents insisted that all treatment stop and when all physicians agreed that the child would make no neurologic recovery.* When parents were described as not insisting that the child be allowed to

Provider Conscientious Refusal of Abortion, Obstetrical Emergencies, and Criminal Homicide Law

Catholic doctrine’s strict prohibition on abortion can lead clinicians or institutions to conscientiously refuse to provide abortion, although a legal duty to provide abortion would apply to anyone who refused. Conscientious refusals by clinicians to end a pregnancy can constitute murder or reckless homicide under American law if a woman dies as a result of such a refusal. Such refusals are not immunized from criminal liability by the constitutional right to the free exercise of religion or by statutes that confer immunity from criminal homicide prosecution. Core principles of the rule of law require the state to protect the lives of all persons equally and to place the life and health of persons above any the interests of providers have in moral integrity or in respecting the moral status of prenatal humans. In some states criminal liability related to conscientious objection also applies to corporate hospital officials.

Legal advice, moral paralysis and the death of Samuel Linares.

Legal advice lies close to the death of Samuel Linares, closer than it usually does to the deaths of the many who die every day in American hospitals. Samuel’s parents wanted the attending physician to disconnect the ventilator of their permanently unconscious son and allow him to die, something they saw as right for their son and their family. But this never happened. Samuel was not allowed to meet the death he had so narrowly avoided in August of 1988 when he accidentally swallowed a balloon and choked. He did not die uneventfully after his parents and the clinicians caring for him had carefully deliberated about the personal, ethical and professional propriety of stopping the ventilator and made a responsible decision about his fate. Instead, Rudy Linares had to ward off nurses and security guards with a handgun until he disconnected his son’s ventilator and held him in his arms until he died. According to the attending physician, Dr. Goldman, “There was no ethical difference of opinion here. The physicians agreed that the child was in an irreversible coma and would not recover. There was no medical opposition to removing the ventilator. What we faced was a legal obstacle. ”I (Emphasis added.) Max Brown, in-house legal counsel for RushPresbyterian-St. Luke’s Medical Center, the hospital in which Samuel was a patient, reportedly advised the physicians and the hospital that it was illegal to disconnect Samuel’s ventilator, although he also thought disconnection was ethical. We gather this from the following statement of Mr. Brown’s about the uselessness of an ethics committee consultation in the Linares case: “What we’re dealing with here is a legal problem. Ethics committees are fine so long as what is ethically being contemplated is legally acceptable. When you have an ethical alternative that is by all accounts illegal, an ethics committee cannot do much to make it legal.”* (Emphasis added.) Specifically, Mr. Brown thought that forgoing further use of the ventilator could be considered first degree murder, that is, malicious, premeditated killing.3 Dr. Goldman confirmed that this was the advice he received when he stated: “The father’s request was that I stop the life of a child. It’s my understanding that would be murder.”4 (Emphasis added.) Mr. Brown also has been reported as saying that federal law required the physicians and hospital to provide life support for the baby or risk prosecution for child n e g l e ~ t . ~ We infer from this that Mr. Brown perhaps also believed that removing the ventilator would violate Illinois law regarding child abuse / neglect. Furthermore, Mr. Brown concluded that Illinois law forbids withdrawing life support from a non-brain dead patient other than an adult who has signed a valid advance directive, but does not forbid withholding such support. He has been quoted as saying, “there is no question that doctors may withhold any form of care from a patient who is dying.”6 (Emphasis added) According to Dr. Goldman, Samuel was dying.’ Mr. Brown did not extend this legal permission to withdrawing care. Both the hospital’s director of public relations* and Dr. Goldman9 understood that withdrawing Samuel’s ventilator was outright illegal in Illinois. Specifically, Dr. Goldman reported that Mr. Brown informed him that it would be legally permissible not to resuscitate Samuel, i.e., to let him die by withholding what Dr. Goldman called “extra care.”’o When the parents asked about removing Samuel from the ventilator, Dr. Goldman told them “that was not a legal option. I could not withdraw life-sustaining treatment. I said they would have to obtain a court order.”11 (Emphasis added) Given that the parents had been informed in no uncertain terms that stopping the ventilator was “not a legal option” and that it was in fact murder, no one should be surprised if they failed to grasp the point of seeking a court order to do what was illegal. Thus, Mr. Brown’s advice put the burden on the parents to secure court approval for disconnecting the

RETHINKING the Ethics of Physician Participation in Lethal Injection EXECUTION

Though there are good arguments against physician participation in executions, physicians should be allowed to make their own decisions about whether they will participate, and professional medical organizations should not flatly destroy the careers of those who do.

The Ethical Implications of Preimplantation Genetic Diagnosis

The development of in vitro fertilization in the 1970s has revolutionized the treatment of infertility. In the US, 126 procedures are performed per million people each year. The ability to culture embryos in vitro has allowed the development of preimplantation genetic diagnosis (PGD). PGD is similar to the prenatal diagnosis used to screen for various genetic diseases before birth, but its advantage is that it allows the selection of certain embryos before their transfer back to the uterus and avoids selective pregnancy terminations. For women of advanced maternal age or couples with known genetic mutations, the ability to screen for embryos free of certain genetic mutations is reassuring. As with many medical interventions associated with human reproduction, however, PGD raises many ethical issues. Recently, PGD has been used in new ways, including: HLA typing so that the childs HLA profile matches that of a sick sibling and is thus available for stem cell transplantation; sex selection; and selection of affected embryos so that the child has the same minor disability as the parents (e.g., deafness). We explore the field of PGD with the director of a PGD laboratory, a bioethicist, and an attorney to understand their views on the ethics of PGD. As the director of a PGD laboratory, do you feel laboratories need to consider the moral/ethical and societal implications before developing a new PGD test? Richard T. Scott: The practice in a PGD laboratory is no different from any other area of medicine. Thoughtful and ethical decision-making is mandatory. Any controversial case is first evaluated by all the physicians and scientists in the program. Complex issues are dealt with by the entire team, with the ultimate responsibility falling on the director. We are always mindful that PGD laboratories are unique, in that they analyze embryo biopsies and produce …

The law, professional responsibility, and decisions to forego treatment.

Medical technology can delay the moment of death for nearly every adult patient. Thus matters that were once the province of fate are now matters of human choice--the choice to withhold or withdraw treatment. The quality and appropriateness of care rendered in situations in which a question arises about foregoing treatment will be ensured only if the interests and rights of all persons involved are understood and respected. The article identifies the various types of situations in which such questions may arise, discusses the general legal principles applicable to each situation, and offers principles and procedures that providers could follow to handle the problems that often accompany a decision to forego treatment.

United States law and managing the terminally ill fetus and newborn

The article sets out the legal principles that govern practice in the US in relation to both the abnormal fetus and the terminally ill newborn. It also provides a view of the law relating to abortion more generally within the US.

Is there any indication for ethics evidence? An argument for the admissibility of some expert bioethics testimony.

Lawrence J. Nelson rofessor Imwinkelried is surely right: the propriety of bioethicists serving as expert witP nesses in litigation is problematic, and, I would add, it should remain problematic. Such testimony most certainly does not belong everywhere it will be offered by lawyers and litigants in an effort to advance their interests. Yet in contrast to some commentators,’ Imwinkelried and I both see a place for bioethicists serving as expert witnesses, although we differ significantly on how to understand and justify this place. In any event, serious questions regarding the proper place for expert bioethicist testimony in the courtroom do exist, not only for law but also bioethics as well. The threshold question regarding the prospect of bioethicists serving as expert witnesses would seemingly have to be: “could a bioethicist qualify as an expert witness under the controlling rules of evidence?” Imwinkelried, however, does not perceive any need to even entertain this question as he claims that “technical evidentiary standards are inapplicable when information is presented to a judge to permit the judge to perform ... a legislative or law-making function.”2 He proposes that a judge “performs an essentially legislative function when the judge fills a gap in the law by formulating a common-law rule, determining the proper construction of a statute, or framing a constitutional rulel’3 When engaged in any of these activities, a judge is “wrestling with a question of social policy and creating law? In contrast, courts are engaged in an adjudicative function when they resolve disputed issues of fact about the conduct of the parties which are relevant to the resolution of the lawsuit before them; this function entails that courts weigh the credibility of witnesses rather than pondering policy considerations. Imwinkelried concludes that this distinction should lead judges to “freely accept normative information proffered [by bioethicists] for legislative purposes,” but should only “rarely” admit such testimony for adjudicative purposes at trial.5 In this article, I will first address what Imwinkelried calls the “critical distinction between descriptive, metaethical, and normative by ethicists,”6 a distinction he uses to set up his solution to the problem of expert testimony by bioethicists. He suggests that as only normative testimony is truly controversial, one should admit it by and large only when a judge is performing a legislative function. I find this distinction unhelpful and quite removed from the actual context in which parties are likely to offer expert bioethics testimony. Here I elaborate on the meaning and significance of

The Mother and Fetus Union: What God Has Put Together, Let No Law Put Asunder?

Some courts have ordered pregnant women to undergo medical treatment against their will and have restricted their liberty for the sake of their fetuses.[l] There is, however, no reliable way to determine the exact number of times courts have issued such orders because these judicial actions usually are not publicly reported. More important, for the same reason there is no reliable way to determine the number of times judges have refused to issue such orders: these decisions are almost never reported either. Consequently, it is impossible to ascertain what portion of courts faced with a request from a physician or hospital to compel a pregnant woman to do something for the benefit of her fetus have granted or refused such requests. It is thus manifestly wrong to claim that “the majority of courts faced with this issue have found that the state’s compelling interest in protection of the unborn should prevail.[2]

Rational Suicide and the Law

When therapists encounter elderly patients who express an apparently rational desire to end their lives, they will very likely have legal concerns about their management of such patients. While those who end their own lives have committed no crime, those who assist them in doing so may be held criminally liable for doing so. Assisting a suicide usually means that a person has actively provided the means for someone to end his life. It does not include discussing suicidal thoughts or plans. As five states have legalized physician-assisted suicide for the terminally ill under certain conditions, some suicides are rational and legally acceptable. Therapists face some risk of being held civilly liable when treating competent elderly persons who have expressed a desire to end their lives, but this risk can be managed by careful professional practice.