Chapter 3

End-of-Life
Dilemmas
When we finally know we are dying, and all other
sentient beings are dying with us, we start to have
a burning, almost heart-breaking sense of the
fragility and preciousness of each moment and
each being, and from this can grow a deep, clear,
limitless compassion for all beings.

—Sogyal Rinpoche
 Learning Objectives (1 of 2)

• Describe the human struggle to survive.

• Discuss end-of-life issues, including:
– Euthanasia
– Right to self-determination
– Defining death
– Legislative response
 Learning Objectives (2 of 2)
• Describe how patient autonomy has been
impacted by case law and legislative
enactments.
• Assisted suicide
• Patient Self-Determination Act of 1990
• Advance directives (e.g., living will, durable
power of attorney)
• Futility of treatment
• Withholding and withdrawal of treatment
 Human Struggle to Survive

• Dreams of immortality
• Race to prevent and cure illness
• Advances in medicine prolong life
• Process of dying prolonged
• Artificial body organs
• Exotic machines
• Medications
 Euthanasia

• Greek: euthanatos, meaning “good death” or

“easy death”
• Euthanasia: “The mercy killing of the hopelessly
ill, injured or incapacitated.”
 Active or Passive Euthanasia

• Active euthanasia is the intentional commission

of an act that results in death.
– Example: Administration of a lethal dose of
medication.
• Passive euthanasia is when a life-saving
treatment is withdrawn or withheld.
– Example: Taking a patient off a respirator.
 Voluntary or Involuntary Euthanasia

• Voluntary euthanasia: Suffering person makes

decision to die.
• Involuntary euthanasia: Person other than the
one with the incurable condition makes the
decision to terminate life.
 Questions of Values:
Involuntary Euthanasia
• Who should decide whether to withhold or
withdraw treatment?
• On what factors should such a decision be
based?
• What viable standards are there to guide the
courts?
• Should criminal sanctions be imposed on a
person assisting in ending life?
• When does death occur?
 Right to Self-Determination

Every human being of adult years has a right to

determine what shall be done with his own body;
and the surgeon who performs an operation
without his patient’s consent commits an assault
for which he is liable for damages.

—Schloendorff v. Society of New York Hospital

 In re Storar

Every human being of adult years and sound

mind has the right to determine what shall be
done with his own body.
 In re Quinlan

• Constitutional right to privacy protects patient’s

right to self-determination.
• A state’s interest does not justify interference
with one’s right to refuse treatment.
 Superintendent of Belchertown State
School v. Saikewicz
• Saikewicz allowed refusal of treatment.
• Questions of life and death with regard to an
incompetent person should be the responsibility
of the courts.
• Court took a “dim view of any attempt to shift
ultimate decision-making responsibility away
from duly established courts of proper
jurisdiction to any committee, panel, or group, ad
hoc or permanent.”
 In re Dinnerstein

“No code” orders are valid to prevent the use of

artificial resuscitative measures on incompetent
terminally ill patients.
 In re Spring

Patient’s mental impairment and medical

prognosis with or without treatment must be
considered prior to seeking judicial approval to
withdraw or withhold treatment from an
incompetent patient.
 Court Involvement
• Court involvement is required when:
– Family members disagree as to the
incompetent person’s wishes.
– Physicians disagree on the prognosis.
– A patient’s wishes are unknown because he
or she always has always been incompetent.
– Evidence exists of wrongful motives or
malpractice.
 Defining Death

• Irreversible cessation of brain function.

• American Medical Association in 1974:
– Death is when there is “irreversible cessation
of all brain functions including the brain stem.”
 Evidence of Patient’s
Intention Not to Prolong Life
• Patient’s intention to reject prolongation of life by
artificial means can be determined by:
– Persistence of statements regarding an
individual’s beliefs
– Commitment to beliefs
– Seriousness of statements made
– Inferences drawn from surrounding
circumstances
 Nancy Cruzan Case

The Supreme Court analyzed the issues

presented in Cruzan in terms of a Fourteenth
Amendment liberty interest. They found that a
competent person has a constitutionally
protected right grounded in the due process
clause to refuse lifesaving hydration and
nutrition.
 Legislative Response

• After the Cruzan decision, states began to draft

new legislation in the areas of living wills,
durable powers of attorney, healthcare proxies,
and surrogate decision making.
• Chief Justice Dore, Washington Supr. Ct. stated:
As was the case in Cruzan, our legislature is
far better equipped to evaluate this complex
issue and should not have its power usurped
by this court.
 Assisted Suicide

• Assisted suicide presents profound questions of

ethics, religious beliefs, and public policy issues.
• Issue in which public input is vital.
• Courts not equipped to conduct the type of
comprehensive review required.
• Legislative and executive branches of
government are equipped to pursue these
issues.
 Physician-Assisted Suicide
• Physician-assisted suicide is an action in which
a physician voluntarily aids a patient in bringing
about his or her own death.
• U.S. Supreme Court rejected Kevorkian’s
argument that assisted suicide is a constitutional
right.
 Physician-Assisted Suicide:
Supreme Court Rulings
• U.S. Supreme Court, in two unanimous and
separate decisions, ruled:
1. Laws prohibiting assisted suicide are
constitutional.
2. Laws allowing doctors to assist in suicide of
their terminally ill patients are constitutional.
 New Mexico Court

A New Mexico judge has ruled that terminally ill,

mentally competent patients have the right to get
a doctor to end their lives. The ruling by Judge
Nan Nash of the New Mexico Second Judicial
District would make Ne Mexico the fifth state to
allow doctors to prescribe fatal prescriptions to
terminal patients.

—Steve Siebold, Huffington Post, March 17, 2014

 Quill v. Vacco
• Supreme Court found that neither the assisted
suicide ban nor the law permitting patients to
refuse medical treatment treats anyone
differently from anyone else or draws any
distinctions between persons.
• There is a distinction between letting a patient
die and making one die. Most legislatures have
allowed the former but have prohibited the latter.
• The Court disagreed with the respondents’ claim
that the distinction is arbitrary and irrational.
 Washington v. Glucksberg

The U.S. Supreme Court held that assisted

suicide is not a liberty protected by the
Constitution’s due process clause. A majority of
states now ban assisted suicide. These rulings,
however, do not affect the right of patients to
refuse treatment.
 Oregon’s Death with Dignity Act

• Allows terminally ill Oregon residents to obtain a

lethal dose of medication from their physician.
• Legalizes physician-assisted suicide.
• Prohibits physician or other person from directly
administering medication to end another's life.
Patient Self-Determination Act of 1990

• Patients have right to formulate advance

directives.
• Healthcare providers receiving federal funds
under Medicare need to comply with regulations.
 Advance Directives

Patients have a right to make decisions about their

health care with their physician. They may agree to
a proposed treatment, choose among offered
treatments, or refuse a treatment.
 Living Will

Instrument or legal document that describes

treatments individual wishes or does not wish to
receive should he or she become incapacitated
and unable to communicate treatment decisions.
 Durable Power of Attorney

A legal device that permits one individual, known

as the “principal,” to give to another person,
called the “attorney-in-fact,” the authority to act
on his or her behalf. The attorney-in-fact is
authorized to handle banking and real estate
affairs, incur expenses, pay bills, etc.
 Durable Power of Attorney
for Health Care

An agent makes health and personal care

decisions for the patient in the event the patient
becomes unable to make his or her own
decisions.
 Surrogate Decision Making
A surrogate decision maker is an agent who acts
on behalf of a patient who lacks the capacity to
participate in a particular decision.
 Substituted Judgment
Substituted judgement is a form of surrogate
decision making where the surrogate attempts to
establish what decision the patient would have
made if that patient were competent to do so.
 Guardianship
Guardianship is a legal mechanism by which court
declares a person incompetent and appoints a
guardian.
 Healthcare Proxy

A healthcare proxy is a document that allows a

person to appoint a healthcare agent to make
treatment decisions in the event he or she
becomes incompetent and is unable to make
decisions for him- or herself.
 Futility of Treatment

• Physician recognizes that effect of treatment will

be of no benefit to the patient.
• Morally, the physician has a duty to inform the
patient when there is little likelihood of success.
• The determination as to futility of medical care is
a scientific decision.
 Withholding and Withdrawal
of Treatment
• Withholding of treatment is a decision not to
initiate treatment or medical intervention for the
patient. This is a decision often made when
death is imminent and no hope of recovery.
• Withdrawal of treatment is a decision to
discontinue treatment or medical interventions
for the patient when death is imminent and
cannot be prevented by available treatment.
 When to Withhold or
Withdraw Treatment
• Patient is in a terminal condition.
• Reasonable expectation of imminent death.
• Patient is in a noncognitive state with no
reasonable possibility of regaining cognitive
function.
• Restoration of cardiac function will last but for a
brief period.
 Removal of Life-Support Equipment

• May be a duty to provide life-sustaining

equipment in immediate aftermath of
cardiopulmonary arrest.
• However, no duty to continue its use once it
becomes futile.
 Terri Schiavo (1 of 12)

27-year-old Terri Schiavo suffered a cardiac arrest

in 1990 and never regained consciousness. She
lived in nursing homes and was fed and hydrated
by tubes. In 1998, Michael, Terri’s husband,
petitioned the court for guardianship to authorize
termination of life-prolonging procedures. Terri’s
parents opposed the petition.
 Terri Schiavo (2 of 12)

• Michael contended his wife never wanted to be

kept alive artificially.
• Terri’s parents told the justices that their son-in-
law was trying to rush her death so he could
inherit her estate and be free to marry another
woman.
 Terri Schiavo (3 of 12)

• A guardianship court issued an order authorizing

discontinuance of artificial life support.
• Trial court found by convincing evidence that
Terri was in a persistent vegetative state and
she would elect to cease life-prolonging
procedures if she were competent to do so.
• Order was affirmed on appeal.
 Terri Schiavo (4 of 12)

On October 21, 2003, the Florida legislature

enacted chapter 2003-418, which the governor
signed into law and issued Executive Order No.
03-201 to stay the continued withholding of
nutrition and hydration. The nutrition and
hydration tube was reinserted pursuant to the
governor's executive order.
 Terri Schiavo (5 of 12)

Florida Law Chapter 2003-418:

Section 1. (1) The Governor shall have the
authority to issue a one-time stay to prevent the
withholding of nutrition . . . :
(a) That patient has no written advance
directive;
(b) The court has found that patient to be in a
persistent vegetative state;
(c) That patient has had nutrition and
hydration withheld; and
(d) A member of . . . family has challenged
the withholding of nutrition . . . .
 Terri Schiavo (6 of 12)

The circuit court entered a judgment on May 6,

2004, in favor of Michael. The circuit court found
that chapter 2003-418 was unconstitutional
because it allowed the governor to encroach
upon judicial power and to retroactively abolish
Terri's vested right to privacy.
 Terri Schiavo (7 of 12)
• This case was not about the aspirations loving
parents have for their children, it was about
Terri’s right to make her own decision.
• It is unfortunate that when families cannot agree,
the best forum for a personal decision
– Is a public courtroom
– The decision-maker is a judge
– The law, however, provides no better solution
to protect interests of promoting value of life
 Terri Schiavo (8 of 12)

The court stated:

We are a nation of laws and we must govern our
decisions by the rule of law and not by our
emotions. Our hearts comprehend the grief so
fully demonstrated by Terri's family members.
But our hearts are not the law. What is in the
Constitution always must prevail over emotion.
Our oaths as judges require that this principle is
our polestar, and it alone.
 Terri Schiavo (9 of 12)
If the Legislature with the assent of the Governor
can do what was attempted here, the judicial
branch would be subordinated to the final directive
of the other branches. Also, subordinated would be
the rights of individuals, including the well
established privacy right to self-determination.

—Bush v. Schiavo, No. SC04-925 (Fla. App. 2004)

 Terri Schiavo (10 of 12)
No court judgment could ever be considered truly
final and no constitutional right truly secure,
because the precedent of this case would hold to
the contrary. Vested rights could be stripped away
based on popular clamor.

—Bush v. Schiavo, No. SC04-925 (Fla. App. 2004)

 Terri Schiavo (11 of 12)

U.S. Supreme Court on January 24, 2005, refused

to reinstate the Florida law passed to keep Terri
connected to a feeding tube, clearing the way for it
to be removed.

• Discuss the ethical and legal issues.

 Terri Schiavo (12 of 12)

• Ethical issues
– Autonomy
• Legal issues
– Guardianship
– Right to self-determination
 Do Not Resuscitate Orders

• Orders given by a physician indicating that in the

event of a cardiac or respiratory arrest “no”
resuscitative measures should be used.
• Given when quality of life has been so
diminished that “heroic” rescue methods are no
longer in patient’s best interests.
 Review Questions
1. Describe why there is such a struggle when
addressing end-of-life issues.
2. Describe the difference between active and
passive euthanasia.
3. Describe the difference between voluntary and
involuntary euthanasia.
4. What are the differences between allowing a
patient to die and physician-assisted suicide?
5. Constitutionally, what gives patients the right to
self-determination?
 Review Questions
6. Describe Oregon’s Death with Dignity Act.
7. What was the purpose of the Patient Self-
Determination Act of 1990?
8. What are advance directives?
9. Describe how a living will differs from a durable
power of attorney for health care.