Ethical Currents Winter 2015

ETHI CAL CURRENTS New York Times, November 5, 2014). More on End-of-Life This may well be the case.

In the fall issue of Health Care Ethics USA, Second, Compassion and Choices Ethical Currents began with the President Barbara Combs Lee stated that observation that “care at the end of life has there is no more fundamental right than been receiving considerable attention of the right of the terminally ill to control late, much of it in the popular press….” the manner and timing of their death. Much the same can be said three months This belief was a constant refrain before later. End of life issues have been very and after Brittany Maynard’s death and it prominent in a variety of media outlets. seems to be gaining popularity judging by But whereas the previous attention dealt the frequency with which it was appealed mostly with improving end-of-life care to by so many who commented on through better advance care planning and Maynard’s death. A survey of more than the like, more recent developments raise 21,000 physicians conducted by ethical concerns. Medscape from September through November 2014 and published in Of course, there were all the media reports December 2014 found that 54 percent of about the self-inflicted death on physicians supported the right of patients November 1, 2014 of Brittany Maynard, a with an incurable illness to seek “a 29-year-old woman who had terminal dignified death” (Medscape Ethics Report brain cancer. At least two major themes 2014 at emerged from this event. First, as ethicist http://www.medscape.com/features/slides Arthur Caplan observed, Maynard’s youth how/public/ethics2014- changed the optics of the debate over part1?src=ban_wnl_2). This was up from physician-assisted suicide. Two videos she 46 percent when the same question was created for Compassion and Choices, asked in a 2010 Medscape survey. posted on You Tube, generated more than 15 million views as of mid-January 2015. In a December 26, 2014 op-ed in the LA Maynard was featured on the cover of Times, a journalist and retired family People magazine, appeared on several medicine physician wrote: “Clearly, we network morning and evening news can no longer hide behind the flimsy programs and posted a page on the shield of the Hippocratic oath. The Compassion and Choices website that drumbeat for change has begun. To attracted more than five million visits. pretend otherwise shows a lack of Compassion and Choices chief program compassion and a disregard for not just officer noted that “nothing has touched as for medicine but for the dignity of life.” many people as Brittany’s story and They go on to say: “But perhaps we changed the dialogue around death with should set aside the debate over the dignity the way this has.” (Paula Span, “A [Hippocratic] oath and what it means. New Face on the End-of-Life Debate,” Should we allow our dedication to an ideal … to outweigh an individual’s stated

ETHI CAL CURRENTS choice of forgoing pain and suffering? If physician aid-in-dying. A recent poll there we allow medicine to prolong life, should found that nearly two-thirds of those we also allow it to shorten life for the asked would vote in favor of such a bill. terminally ill?” So as not to burden Two state legislators in Colorado are physicians who oppose aid-in-dying, the drafting legislation modeled after the authors suggest forming a new class of Oregon law that they hope to introduce medical professional—licensed death this year. This follows on the heels of a doulas—who would oversee the end of life very public request to legislators last year for the terminally ill (Nora Zamichow and by an ALS patient explicitly asking them Ken Murray, “The Hippocratic Oath and in an open letter in the Denver Post to the Terminally Ill” ). “show mercy on the terminally ill. Please.” Charles Selsberg, the 77-year-old who A Pew Research poll in 2013 found that died because he stopped eating, has 63 percent believed that a person has a become the face of proposed legislation in “moral right” to suicide when “suffering Colorado. great pain with no hope of improvement” (up from 55 percent in 1990), though 49 In New Jersey, the State Assembly passed percent say they oppose doctor-assisted a bill in late 2014 and a senate committee suicide for the terminally ill voted toward the end of December 2014 (http://www.pewresearch.org/fact- to allow the New Jersey Death with tank/2014/10/22/americans-of-all-ages- Dignity Act to proceed to the full senate divided-over-doctor-assisted-suicide- for a vote. A state senator from Manhattan laws/). is seeking support for a bill that is modeled after the Oregon law. While A seeming shift in public sentiment unlikely to pass in 2015, it has raised the regarding the legitimacy and availability of issue among New Yorkers. In physician aid in dying is evidenced in the Pennsylvania, two legislators entered bills growing number of state legislatures that into the state house and senate last year, are considering its legalization. Oregon, bills that are also modeled after the Vermont and Washington are currently Oregon Death with Dignity Act. The bills the only three states with aid-in-dying did not come up for a vote before the legislation in place. New Mexico and session ended in December but are likely Montana have court rulings that protect to be re-introduced in 2015. Finally, there physicians who help patients to die. is activity to legalize assisted suicide in Wyoming and Washington, D.C. Currently, there is aid-in-dying activity in at least six states. In California, Aid-in-dying is taken a step further in a Compassion and Choices has hired staff, letter to the editor in the November 15, held community meetings, and is 2014 issue of the New York Times (the lobbying local public officials. On January Sunday Dialogue). The author writes: 22, 2015, two California state senators “Perhaps the moment is right for introduced a bill that would legalize broaching the idea of what we might call

ETHI CAL CURRENTS prophylactic suicide: the decision of an Choices, estimates that she has “guided” elderly person to pre-empt the grim reaper more than 100 patients through a life- and avoid the disabilities of extended life. ending fast or VSED. It doesn’t require … [A] recognized right to assisted suicide physician assistance, medications, or legal for those over 80 would ensure a painless approbation. “According to Schwarz’s death and allow an elderly person’s loved reasoning, during the late stages of a ones to be there at the end. As someone terminal illness, food can be akin to a life- who is 85, I know I would appreciate prolonging drug—especially when the having that choice.” (Joyce Appleby, patient has no appetite. Death by pills or “Prophylactic Suicide, “at lethal injection might be unnatural, but http://www.nytimes.com/2014/11/16/opi she believes that declining nourishment nion/sunday/prophylactic- and medications is not. … She just wants suicide.html?_r=0). to make it easier for them to act on their choices—particularly if they choose a The legalization of aid-in-dying is not the speedier death.” only end-of-life option being discussed in the popular and professional literature of The Hastings Center Report published two late. In the January 20, 2015 issue of the articles in the May-June 2014 issue (Vol. New York Times, there appeared an article 44, no.3) on withholding food and water titled “Complexities of Choosing an End by mouth for persons with dementia when Game for Dementia” they request this in an advance directive. (http://www.nytimes.com/2015/01/20/he In their article (“Advance Directives, alth/complexities-of-choosing-an-end- Dementia, and Withholding Food and game-for-dementia.html). The author, Water by Mouth,” pp. 23-37), Paul Paula Span, tells the story of an elderly Menzel and M. Colette Chandler Cramer gentleman who in his advance directive argue for a qualified acceptance of this specifies that if he develops Alzheimer’s position, while Rebecca Dresser (“Toward disease or another form of dementia, he a Humane Death with Dementia,” pp. does not want ordinary means of nutrition 38-40) raises significant concerns about and hydration, generally referred to as such a practice. A recent article in The voluntarily stopping eating and drinking Linacre Quarterly (vol. 81, no. 3, pp. 279- (VSED). 285) brings the issue home for Catholic health care. Maureen Cavanagh in her In November 2014, the Daily Beast piece, “How Should a Catholic Hospice published an article titled, “The Nurse Respond to Patients Who Choose to Coaching People Through Death by Voluntarily Stop Eating and Drinking in Starvation” (by Nick Tabor, at Order to Hasten Death,” examines the http://www.thedailybeast.com/articles/20 ethical issues involved from the 14/11/17/the-nurse-coaching-people- perspective of the Catholic tradition and through-suicide-by-starvation.html). suggests strategies for the Catholic hospice Judith Schwarz, a 70-year-old nurse who to respond to such requests. until recently worked for Compassion and

ETHI CAL CURRENTS What are some learnings and implications Catholic health care in general as well as of these “ethical currents” for Catholic Catholic health care organizations health care and the Church? At least two (systems and facilities) will need to decide things seem to stand out. First, the tide whether, to what degree, and how to get clearly seems to be changing with regard involved in opposing legislative efforts. to societal attitudes toward favoring But equally, if not more important, they physician-assisted suicide. It will be need to intensify efforts to provide good extremely difficult if not ultimately end of life care both because it is the right impossible to stem this changing tide. In thing to do for patients and also so as not fact, it is probably only a matter of time to contribute to the problem of before we reach a tipping point. The unnecessarily prolonged dying processes appeal to personal choice and control has marked by unrelieved pain and suffering. great persuasive power in American The Catholic moral tradition provides society and it is very difficult to mount excellent guidance for providing optimal convincing counter-arguments, especially end of life care. It simply needs to be when that choice and control are aimed at implemented on a consistent basis in all ending suffering and a prolonged dying. Catholic health care facilities. And, finally, Catholic health care organizations will Second, the personification of the desire need to be clear on their policies and and/or “need” for the right to such choice procedures for addressing requests for is powerful and additionally persuasive. physician-aid-in dying where it is legal Putting a face on situations of actual or and, now, requests for VSED. Neither of probable suffering and prolonged dying these issues is likely to go away. seeking relief is also a very effective “argument” and strategy for legalizing RH physician aid-in-dying. Personal stories, whether in the media or before legislatures, are difficult to counter.

Catholic (and other religious) efforts to prevent or slow the legalization of physician aid-in-dying will need to take account of the personification factor, the appeal to personal choice and control, and will need to offer persuasive reasons why someone’s dying should not be hastened when death is inevitable. The challenge here is considerable, especially since much of the recent success in shifting societal attitudes toward physician aid-in-dying is due to an appeal to emotions and not to reason.