FEATURE ARTICLE The Texas Advance Directives Act: A Threat to Catholic Identity? objection, unless another facility is willing Elliott Louis Bedford to accept the transfer of the patient. Graduate Assistant, Ascension Health Graduate Student, Health Care Ethics, This legal protection granted to physicians Saint Louis University requesting to unilaterally withhold LST St. Louis, Mo. despite a family’s objection raises the [email protected] question whether such a law poses a threat to the identity of Catholic hospitals. Most Introduction immediately, it raises concerns with regard to observance of the Ethical and Religious Medical “futility” cases have generated Directives for Catholic Health Care Services controversy among medical professionals, (ERDs). Applicable directives include bioethicists, legal professionals and the Directive 57 since a physician can decide public for decades due to widespread to withhold treatment from a patient if it disagreement about the point at which a is deemed medically inappropriate, medical intervention is no longer Directive 58 because it allows physicians considered beneficial to a critically ill to withhold artificial nutrition and patient. To date, no uniform method has hydration, and Directive 60 which been established to resolve these cases. prohibits euthanasia. Moreover, even if This has prompted the enactment of laws the TADA does not threaten Catholic including the Texas Advance Directives identity with regard to these directives, it Act of 1999 (TADA). The TADA raises concerns whether it threatens a establishes a process for discerning the Catholic institution’s commitment to appropriateness of a physician’s request to provide high quality end-of-life care to withhold life-sustaining treatment (LST), suffering and vulnerable patients and despite the patient’s pre-existing advanced families. To address these concerns it is directive. This process includes a necessary to review data collected from consultation between the patient’s family health care institutions that have made use and an ethical/medical review committee of the process. An analysis of recent review to analyze the patient’s medical record and studies lends insight into the effects of the determine whether the LST in question is TADA on cases of medically inappropriate medically inappropriate. If the treatment treatments, and will help evaluate the is deemed inappropriate, the physician is potential impact of these laws on Catholic afforded legal safe-harbor to unilaterally hospitals. withhold LST after a minimum ten-day waiting period, despite the family’s Copyright © 2012 CHA. Permission granted to CHA-member organizations and Saint Louis University to copy and distribute for educational purposes. 2 FEATURE ARTICLE Does the TADA Violate the ERDs? Contentious medical “futility” cases However, this argument is flawed as it including that of Emilio Lee Gonzales, a misinterprets the directive. Directive 57 16-month-old pediatric patient suffering morally justifies a patient’s decision to from a fatal neurological condition known refuse a given treatment based on the as Leigh’s disease, have raised questions principle that they themselves have judged regarding the law’s compliance with the the benefits associated with the treatment church’s moral tradition, articulated in to be insufficient or the burdens to be part by the ERDs, in the context of end- excessive. A true violation of Directive 57 of-life decision making.1 The tradition would occur if a physician imposed a teaches that individuals have a duty to treatment on a patient, who has judged it preserve their life, but not by any means extraordinary, because the physician has necessary. In 1957, Pope Pius XII deemed it ordinary. As mentioned, attempted to clarify that individuals have Directive 57 morally justifies a patient’s an obligation to preserve their life by ability to refuse a treatment in instances in ordinary means, “that is to say, means that which it provides insufficient benefit or do not involve a grave burden for oneself excessive burdens or harm. Therefore, in or another.”2 This obligation does not its application, this directive assumes that extend to the use of extraordinary or a treatment is offered to the patient. It disproportionate means. Directive 57 does not authorize a patient to request a represents this teaching of Pius XII, treatment, either ordinary or stating: extraordinary. A person may forgo extraordinary or Others may also argue that under the disproportionate means of preserving provisions of Directives 56 and 57, life. Disproportionate means are those physicians have an obligation to honor a that in the patient’s judgment do not patient’s request for treatments, especially offer a reasonable hope of benefit or those that the patient considers ordinary.4 entail an excessive burden, or impose However, neither directive speaks to the excessive expense on the family or the physician’s duty to offer a treatment. community.3 Since the Catholic tradition supports the physician’s ability to conscientiously Given the significance that Directive 57 object in certain circumstances, the places on the patient’s ability to determine tradition does generally recognize that the whether a treatment is ordinary or duty to offer treatment is not absolute.5 extraordinary, it may appear that the Yet, under the TADA the physician’s TADA violates this directive because it ability to refuse is clearly limited. Recent allows physicians to withhold LST from a studies in Critical Care Medicine and the patient based on an external extraordinary Journal of Perinatology report that the means judgment. Copyright © 2012 CHA. Permission granted to CHA-member organizations and Saint Louis University to copy and distribute for educational purposes. 3 FEATURE ARTICLE review committee disagreed with the physiologic ends (e.g. when they are not physician in 30 percent and one-third of being assimilated) or when the artificial cases, respectively.6 In the case that the means (e.g. surgery, tube, maintenance) committee disagrees with the physician’s used to administer the nutrition and judgment, the law specifies that the hydration have become harmful to the physician must continue to provide patient. treatment. Therefore, the comprehensive review process can be understood, in part, Given the controversy concerning the as a means of determining the duty of the provision of MANH in Catholic health physician to provide LST or, rather, the care, its status under the TADA is a threshold at which a physician can particularly sensitive issue.9 Some critics legitimately refuse. In essence, this law may hold that this law enables institutions enables physicians to practice to withhold MANH from a patient even if conscientiously in cases in which it is the only LST being provided.10 This treatment is medically inappropriate and would entail: (1) the physician judging the even harmful. Therefore, it seems the treatment to be medically inappropriate; TADA does not violate Directive 57 (2) the committee agreeing with the because the directive speaks only to the physician’s judgment; (3) no other patient’s ability to refuse treatment, not medical institution is willing to accept request it. Thus, the TADA allows transfer; and (4) the family hasn’t filed or physicians the limited ability to refuse to received a court-ordered injunction. provide treatment, not because they can Further, actual practices involved with judge means to be extraordinary, but implementing the TADA guard against because they have, in principle, a limited this scenario. The patients in cases that duty to offer or provide treatments to appeal to the TADA process are typically patients. admitted in the intensive care unit of the hospital, have multiple co-morbidities, While Directive 57 does not speak to the and are considered to be imminently physician’s duty to provide treatment, the dying.11 In one pediatrics study, all but same cannot be said for Directive 58.7 one patient was ventilator dependent, all Though there has been considerable had do not resuscitate orders, were debate over the proper interpretation of receiving MANH and suffered from a the language used in the directive, it seems range of devastating that, at a minimum, Directive 58 conditions.12 Interestingly, the one patient establishes that medically assisted who was not ventilator dependent but nutrition and hydration (MANH) need received MANH, a patient who suffered not be provided in all circumstances.8 This from severe hypoxic ischemic is especially true when it is objectively encephalopathy, aspiration pneumonia, discernible that nutrition and and seizure disorder, was transferred to hydration are not achieving their another facility on day eight of ten for a Copyright © 2012 CHA. Permission granted to CHA-member organizations and Saint Louis University to copy and distribute for educational purposes. 4 FEATURE ARTICLE tracheotomy and was discharged home.13 Some individuals fear that the TADA will However, given the uniformly severe legally protect physicians in cases of condition of the patients reported in these passive euthanasia, even though the law studies, in addition to the multiple forbids it.16 Euthanasia, an act or omission decision points within the process, data intended to alleviate a patient’s suffering suggest that the process is not invoked or through death, is always forbidden in carried to conclusion in order to simply Catholic hospitals under Directive 60.17 remove MANH. Nonetheless, there is a significant moral difference between removal of Rather, it seems physicians are willing to inappropriate and harmful medical provide MANH to patients even if the treatments and euthanasia. First, there purpose for doing so is primarily for the exists a difference of intention. One seeks benefit of the family. For instance, one to relieve suffering through the study notes that, “Although nutrition and discontinuation of inappropriate and hydration are not obligatory when death is harmful treatment and the other seeks to imminent, they may be made available in relieve suffering through death. Second, amounts carefully adapted to the patient’s there is a difference in causation.