A friend and I are going to a medical ethics conference tomorrow. One of the featured speakers is John Hardt, Ph.D. It promises to be more frustrating than enlightening, but it is good to hear what kind of moral arguments are being forwarded in the area of medical ethics. An article the John Hardt wrote at the end of last year shows me what we’re in for. Dr. Hardt wrote the article in response to the Congregation on the Doctrine of the Faith’s (CDF) response to the bishops of the United States regarding some questions regarding end of life care. Dr. Hardt’s conclusion was that the response from the Vatican was open to free interpretation. His main argument seems to center around the phrase, “in principle,” used by the CDF and by Pope John Paul II.

While it is true that the term “in principle” does connote possible exceptions, such a phrase does not give moral theologians and ethicists freedom to allow for any exceptions they see fit. There is a hierarchy of moral truth:

• Moral laws: these are inviolable – derived from the way God made us as human beings (natural law) and by His Divine Revelation that instructs in our relationship with Him.
• Moral principles: these are derived from moral law in order to give us direction for following it. Since they are human formulations, they may be revised. However, because they are derived from the inviolable moral law, they are very solid and are changed carefully and rarely. They must remain true to the moral law.
• Moral formulations (theories & models): these are attempts to apply general moral principles to very specific circumstances. They may be argued and changed, but always with the goal of staying as true to moral principles as possible. The Ethical and Religious Norms – ERDs – fall here.
• Prudential decisions: these are individual choices in an attempt to attain the greatest good to which the moral law guides us. Here is where we as individual get it right or get it wrong. Prudential decisions should be oriented toward fulfilling the moral law, using the principles and theories/models/formulations to get there. These choices are choices of conscience, which should be formed by the moral law, principles and formulations.

Dr. Hardt seems to lose sight of this hierarchy when he states:

When interpreting and applying the documents of the Holy See, there are a number of traditional norms, some dating back to the early days of church legislation. Most of these norms were collected in the Rules of Law (Regulae Iuris) in the Libro Sexto of Pope Boniface VIII in 1300. Many of the rules are repeated in one way or another in the present Code of Canon Law. Two canons of the present code are relevant for our study:

• Canon 18: “Laws which establish a penalty or restrict free exercise of rights . . . are subject to strict interpretation.”
• Canon 52: “A singular decree has force only in respect to the matters which it decides and for the persons for whom it was given.”

Hence, the application of the CDF response, because it limits the free exercise of rights, will only apply to a restricted number of cases, specifically to patients with a firm diagnosis of PVS. Some commentators have sought to extend the statement to people with other pathologies, such as advanced Alzheimer’s disease or acute dementia. But the response concerns only patients who are diagnosed as being in a persistent vegetative state, not to all patients who are unable to assimilate food and water without artificial assistance. If the CDF wanted to extend this teaching, it could use another form of communication, for example, an Apostolic Instruction. Moreover, because the questions were presented by the U.S. bishops, the response applies only to them and the ecclesiastical communion for which they are responsible, not, for example, to the church in Canada or Australia.

The laws and decrees to which these canons refer are laws and decrees of canon law, or of specific legislation. They do not refer to statements that reiterate or clarify moral law or moral principles. Moral decisions often “limit freedom” when freedom is incorrectly defined as the ability to choose whatever you want to choose. However, when you define freedom truly, as the power to choose what is good, such statements actually lead us to true freedom. Statements such as the one to the American bishops from the CDF are part of the ongoing teaching of the Church about the universal moral law.

Dr. Hardt talks about certain presuppositions made by the CDF that would lead to certain exceptions to the general principle:

Presuppositions of the CDF Response
When applying the CDF response, some of its presuppositions can be called into question, potentially disposing of more exceptions on the part of care givers than are indicated in the CDF response. Following is a consideration of some of these presuppositions as they relate to the tradition of the church on this matter.

The CDF proposes that ANH “does not involve excessive expense.”

The majority of the authors of the CDF response come from countries in which universal health coverage is a given. The situation here in the U.S. is obviously different and often poses significant financial hardships for the caregivers of patients in PVS, third-party payers or the civic community. The possibility that the immediate caregivers may not be financially burdened does not mean that the cost of caring for patients in PVS is negligible. The vast majority of patients who receive ANH in the U.S. receive their care in hospitals or long-term care facilities, both of which may very well impose “excessive expense” on one or all of the entities mentioned above.

It is certainly true that financial burden on the relatives of a comatose or incapacitated patient is one consideration when determining whether a treatment is ordinary or extraordinary. However, such financial burden needs to be severe to qualify the treatment as an extraordinary means. Furthermore, such families should not face the burden of medical care alone. They should have the help of the community. Finally, the great expense in America is not really associated with feeding and hydration. It is rather due to the exorbitant way in which patients are charged – including full doctor charges for brief visits. The added expenses for sustaining treatment are truly a social justice issue. The changes need to be made in the medical establishment, not in the decision whether or not to offer sustaining treatment.

The CDF proposes that the purpose of ANH “is not, nor is it meant to be, a treatment that cures the patient, but is rather ordinary care aimed at the preservation of life.”

The CDF’s suggestion that ANH is not meant to be a treatment that cures a patient is not congruent with human experience in the hospital and long-term care setting. When families, in consultation with a clinical care team, initiate ANH for a loved one, it is usually done so with the intent and hope for substantive recovery. Moreover, persons are increasingly designating in advanced directives or by oral communication their clear desire to not receive ANH if there is no hope of cognitive recovery. These wishes reflect an attitude recognized in moral theology as psychic aversion (horror mentis). This attitude arises because people feel that such care does not truly benefit a patient in a permanently comatose condition and that it will often place a burden upon the loved ones giving care. As mentioned above, it is not unreasonable to interpret the CDF response as recognizing the possibility of this attitude.

Dr. Hardt splits hairs here to point out a difference that doesn’t really exist. The CDF’s statement that food and water are not given as a treatment indicates that the food and water themselves have no medicinal value. Dr. Hardt is referring to the desire to extend someone’s life in hope that time will heal the person. This does not put food and water into the realm of curative treatment. Why does this difference matter? A patient is able to deny any curative treatment that does not hold much hope of being effective. However, food and water may not be denied because they are basic to human life. Even if there is not much hope of recovery, food and water must be administered. If an extraordinary form of curative treatment is denied, the result may be death due to the illness. However, if food and water are denied the death is due to starvation or dehydration. There is a big difference here.

Hundt’s claim that moral tradition has held that patients may deny life support in order to avoid the form of suffering called “psychic aversion” on behalf of loved ones is also questionable. Life support that replaces or aids a failing bodily function may be considered extraordinary care, since the organ has failed anyway. However, giving someone food and water that the body is able to use and that the body needs for survival is not extraordinary and may not be refused by the patient. It is exactly the attitude that a person’s suffering poses and undue burden on loved ones that the Church’s moral tradition has sought to avoid. It is not permissible for me to kill off my grandmother because I’m sick of waiting around for her to die. It is equally not permissible for my grandmother to refuse ordinary means of sustaining her life so that she does not burden me. A person’s suffering and life have value – they are not burdens.

The CDF proposes that if ANH is removed, the cause of death “will be neither an illness nor the ‘vegetative state’ itself, but solely starvation and dehydration.”

Here, the CDF offers an interpretation of what kind of act constitutes euthanasia. This interpretation is at odds with the traditional teaching of moral theology. When life support is removed because it does not offer hope of benefit or imposes an excessive burden, the cause of death is the pathology which is no longer abated or circumvented. This is at the heart of the distinction between the licit removal of life support and passive euthanasia. This distinction has been explained by several Catholic moral theologians of the past, and its misconception, as expressed in this document, would call into question the removal of any form of life support under any conditions.

Here again Hundt fails to differentiate between “life support” that takes over for a failing (or failed) bodily system and a mechanized method of ordinary sustenance. If a disease or bodily trauma has caused my heart to stop, I may be on life support that keeps my heart beating in hope that my body may heal in time. Taking me off such life support because that hope is too small to balance the burden on me and my loved ones would be morally licit because the disease or trauma has stopped my heart and turning off life support would do nothing more than allow death to take its course. Taking away food and water is not the same. The absence of food and water would kill me whether or not I had the disease or trauma.

While this is an important distinction, I’m not sure Hundt is correct in claiming that it is at the heart of the differentiation between licit and illicit (he is oversimplifying). If there is hope of recovery or if the burden of a heart machine is not excessive, it would not be illicit to remove it either.

The CDF proposes that if care is “prolonged over time,” it may constitute an excessive burden.

The CDF response does admit that caring for a PVS patient over time may be a notable burden. This is similar to the recognition of family burden offered by Pope John Paul II in his original allocution on care of PVS patients. The bishops of the United States issued some “talking points”—in the form of a Q&A—when they released the response they had received from the CDF, and they suggest that the main burden for the care givers will be financial. They also suggest that Catholic health care facilities and the Catholic community should offer assistance and provide “concrete examples of the Church’s commitment to human life.”6 Once again, given the psychic aversion to continuing care for comatose people who will never recover consciousness, it is questionable whether the Catholic community will respond to this challenge.

Once again Hundt brings up psychic aversion. There is no doubt that the emotional and moral suffering of a family with a seriously ill loved one is very real and intense. However, this is not the kind of suffering that may be considered as part of the burden of treatment. This is suffering caused by the illness, not suffering caused by the treatment. What people suffering from psychic aversion need is support and counseling, not the death of their suffering loved one. Only when they see the beauty of the person’s life and the value of their suffering will psychic aversion be properly dealt with. To allow ordinary means of sustenance and treatment to be denied due to the burden of psychic aversion would lead only to guilt that they wanted their loved one to die.

Medical ethics in our area are often carried on by people like Dr. Hundt. These “ethicists” fail to understand the proper role of the magisterium. They also often take very myopic views of moral tradition and fail to apply principles such as “growth through suffering.” The fact that Catholic hospitals are rationalizing their way to the Culture of Death should scare us all.

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