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From the January/February, 2008 issue of Touchstone


The Terminators by Anne Barbeau Gardiner

The Terminators

London Conference Reviews Widespread Deadly Care

by Anne Barbeau Gardiner

Religion must not be ignored if we are to treat human life with absolute respect and seriousness, said Irish Bishop Donal Murray, giving the opening address at the fourth annual conference of the Linacre Centre for Healthcare Ethics, held in London in early July. Without it, the scientific approach can lead to an inadequate idea of humanity and the “betrayal of trust” by those charged with caring for the incapacitated.

The reason, explained David Albert Jones, is that “personhood” today is defined as a status one can acquire or lose. This makes our common humanity subject to arbitrary tests, said Jones, professor of bioethics at St. Mary’s University College in London and author of The Soul of the Embryo.

Christianity, in contrast, teaches the equal dignity of receiving and giving, of weakness and strength. The test of personhood is not capacity but membership in the human community. For just as the Good Samaritan showed himself a neighbor by acting like one, so we discover ourselves as persons by cherishing the dependent.

Terminated Care

William Sullivan, a Canadian physician and director of the International Association of Catholic Bioethicists, told how patients with disabilities have limited access to medical care because they cannot express their internal states. They die at a younger age from preventable causes like pneumonia or constipation for lack of personal support in seeking ordinary medical help.

That physician-assisted suicide will not be contained in its original boundaries can be demonstrated from the past 15 years of the Dutch experience, said Wendy Hiscox, lecturer in bioethics and medical law at St Mary’s. Violations of procedure become widespread, requirements are ignored or interpreted too widely, and access to suicide is extended to new categories: the mentally ill, the elderly weary of life, or patients with the beginnings of dementia.

Since 1990, there have been thousands of “life-terminating acts without explicit request,” and only one-fifth of such cases are ever reported. Moreover, prosecutions are rare, sentences lenient. In 2001, for example, a Dutch general practitioner who was convicted of killing an 84-year-old comatose patient at the urging of her daughters, even though the patient had said she wanted to live, got only a suspended fine.

Belgium legalized euthanasia only in 2002, but doctors are already performing non-voluntary euthanasia in cases of severe dementia and infant disability, Hiscox reported. Out of three hundred deaths of infants under a year old, half were from “active life termination.” Over 70 percent of physicians who were asked admitted that they had killed patients or were willing to do so in cases where they judged their patients’ quality of life inadequate.

Thus, she concluded, legal guidelines meant to bring the practice under scrutiny create a false idea of control. And as euthanasia spreads, social attitudes change towards old age and disability, so that the unthinkable gradually becomes the unexceptional.

Speaking about the myths related to dementia, Desmond O’Neill, professor of Gerontology at Trinity College in Dublin, provided an impressive list of people who, in the early stages of dementia, composed memorable books, music, and art, like Mordecai Richler ( Barney’s Vision) and Maurice Ravel ( Bolero). He noted that the elderly are the largest users of medical care, yet they are not well represented in research, due to a prevailing prejudice against old age.

The next two speakers observed that mentally disabled women are routinely sterilized and given abortions without their consent.

Aaron Kheriaty, director of the Psychiatry and Spirituality Forum at the University of California, noted that the U.K. justifies, out of supposed “compassion,” non-voluntary sterilization, contraception, and abortion for mentally incapacitated women. Such measures are merely technical solutions to human problems, ways of evading our responsibility to guard these women entrusted to us, he said, though many can be taught to value their bodies and to signal for help when sexual advances are made at them.

Sterilization of the mentally incapacitated for non-therapeutic purposes amounts to direct surgical attack, added Anthony McCarthy, research fellow at the Linacre Centre (he has written for Touchstone). In practice, such mutilation, though justified for the sake of the “social good,” leads to rape.

Unsound & Unclear

Philip Howard, a physician and senior lecturer in medicine at a London medical school, examined the Mental Capacity Act of 2005, which came into full force in October. This law allows for euthanasia by omission for those who want it. But since dehydration takes ten to fourteen days to cause death, this euthanasia will be given by a combination of dehydration and terminal sedation by morphine, a process that takes two to three days (and which is no longer euthanasia by omission).

Further, binding advance directives and powers of attorney can now be -reversed only by going to court. It is not clear yet if a suicide note is an advance directive. A foreseeable problem is that now people with powers of attorney will be able to override patients’ doctors and prevent treatment that would benefit the patients.

John Finnis, professor of law and legal philosophy at the Universities of both Oxford and Notre Dame, spoke of the Act as being “not as clear and sound as it should be.” A person of good conscience could follow it without doing wrong, yet it does not protect the patient against those whose consciences are not and thus could encourage injustice.

The question of the patient’s “best interest” is subjective, though the Catholic bishops’ complaints about the original legislation did yield a section which states that the proxy must not be “motivated by a desire” to bring about the patient’s death. But this does not cover advance directives, which can be motivated by a desire for death and render treatment unlawful, even if it is clearly in the patient’s best interest. There is a widespread view today that death by omission, even when suicidal intention is known, is not suicide.

The Act requires that the person who has made an advance decision be assumed to have capacity unless there is a “reasonable” basis for doubt. The advance decision is legally binding on the doctor, so that treating a patient who has said he wants a withdrawal of care will be considered assault. Physicians will be faced with a choice between formally cooperating with suicide and disobeying the law.

The Doctor’s Dilemma

The conference ended with a spirited discussion of the Mental Capacity Act. I will give only a few highlights.

Howard spoke candidly about the physician’s motivation: “You jolly well know what you intend to do” if you give a patient opiates and are “distressed to see the old lady sitting up the next day,” he said. He noted that while a nurse may absent herself from the ward when a mother orders her disabled daughter to be dehydrated, medical students and junior doctors will be left with removing the drip and the food.

Should a doctor appeal a decision, the court will then decide what is in the patient’s “best interest” and may order the doctor as a matter of law to terminate his patient. Since there is no conscience clause in the Act, the doctor might have to go to prison, because “if push comes to shove, you must not deliberately put the patient to death who is ethically under your care.”

According to Finnis, stroke patients have been routinely dehydrated in the last decade, and now more people can demand it for others. Legal proxies have a new legal power to order the discontinuation of treatment. If, on a doctor’s appeal, the court decides that discontinuing “treatment” is in the patient’s “best interest,” the doctor’s disobedience will be considered “assault.” Even so, he argued, the Mental Capacity Act makes the situation better than the common law had done before.

Another participant, James Bogle, chairman of the Catholic Union, pointed out that while a doctor is allowed to refer a case to court, the National Health Service may well urge doctors to minimize litigation. Besides, the court will likely support the one with power of attorney, who will usually be a member of the family and an heir, but may be a court-appointed “deputy” or a social worker.

The conference was sponsored by Ave Maria School of Law, to which the Linacre Centre is affiliated. Assisting with the conference were the Guild of Catholic Doctors, St. Mary’s University College, the Diocese of Westminster, and the Bishops’ Conference of England and Wales. The proceedings will be published next year.

For information on the Linacre Center, see www.linacre.org. For the author’s review of Jones’s The Soul of the Embryo, see http://-touchstonemag.com/archives/issue.php?id=116.

Anne Barbeau Gardiner is Professor Emerita, Department of English, John Jay College, City University of New York. She is the author of Ancient Faith and Modern Freedom in John Dryden?s The Hind and the Panther (Catholic University of America Press) and a regular reviewer for New Oxford Review.

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