Grandma has a problem. The Feds, it appears, are about to ration her health care. That could turn out her lights. The Obama stimulus package creates a new bureaucracy under a National Coordinator for Health Information Technology. [Secs. 3000-3018.] The Coordinator is mandated to develop an infrastructure that "reduces health care costs resulting from inefficiency [and] inappropriate care...." [Sec. 3001(b)(3).] Medicare currently pays for treatments that are safe and effective. The stimulus opens the door to a cost-effectiveness standard pursuant to guidelines set by the bureaucracy. Under such a standard the availability of care could turn on Grandma's age, her productivity, etc. The recession will intensify pressure to reduce medical spending on non-productive persons. In that game a 75 year-old woman seeking a substantial medical procedure will be a predictable loser.
A later column will discuss the stimulus in detail. For now, let's ask: If Grandma is denied a needed operation and is home in bed with no hope of recovery, can you put her out of her misery? If she is on a feeding tube, can you withdraw it? Suppose she wants to die? The stimulus provides an added reason to address these issues, but they already arise with patients of all ages who are incurable, incompetent, or both.
The legal and moral principles are clear. A competent adult has the legal right to refuse any and all medical treatment, including the right to refuse food and water whether naturally or artificially provided. If a patient is incompetent, the law permits withholding of treatment, including food and water, based on the patient's intent previously expressed in an advance directive or otherwise, or based on his health care agent's opinion that the patient would want such withdrawal or, in some states, that it would be in his best interest.
The moral principles are clearly presented in Catholic teaching. First, you never have the right intentionally to kill the patient. "[T]he direct and voluntary killing of an innocent human being is always gravely immoral." Evangelium Vitae (EV), 57. This includes euthanasia, "an act or omission which, of itself or by intention, causes death in order to eliminate suffering." Catechism (CCC), 2277. The Catechism calls it "murder."
With respect to medical treatments, we have a duty to use all ordinary and proportionate means to preserve our own lives and the lives of those in our care. See CCC, 2276-79. "[M]edical procedures that are "burdensome, dangerous, extraordinary or disproportionate" are not morally obligatory. CCC, 2278.
The main issues involve palliative care and the withdrawal of nutrition and hydration. In Vacco v. Quill, in 1997, the Supreme Court said a State "may permit palliative care" of patients to relieve their pain, even though it "may have the foreseen but unintended 'double effect' of hastening the patient's death." According to Catholic teaching, palliative care may be so administered to relieve pain even though it hastens the unintended death of the patient. But it cannot be used with the intent to kill the patient. The law, however, cannot ordinarily determine whether the palliative care was given to relieve pain or to cause death. Where the family and caregivers agree that it is time for the patient to die, the administration of morphine or other palliatives can be a mode of homicide effectively beyond the reach of the law.
On nutrition and hydration, if a patient refuses food and water with the intent to die, it is a form of suicide which "is always as morally objectionable as murder." EV, 66.
In the Terri Schiavo case, Judge Greer ordered, and not merely authorized, Michael Schiavo to remove not only the feeding tube but all forms of "nutrition and hydration" from his wife. The only reason you heard about Terri Schiavo was because the family members disagreed. When the family and caregivers agree that the patient should die, he can be legally executed by withdrawal of food and water. There are no statistics but it is fair to assume that such executions are numerous and perhaps routine.
The Congregation for the Doctrine of the Faith (CDF), with the approval of Pope Benedict XVI, issued a statement on August 1, 2007 (L'Osservatore Romano (English), Sept. 19, 2007) on "the nutrition and hydration of patients in ... a 'vegetative state.'" The principles apply to all patients in whatever condition. The CDF posed and answered two questions:
"First question: Is the administration of food and water (whether by natural or artificial means) to a patient in a 'vegetative state' morally obligatory except when they cannot be assimilated by the patient's body or cannot be administered to the patient without causing significant physical discomfort?
"Response: Yes. The administration of food and water even by artificial means is, in principle, an ordinary and proportionate means of preserving life. It is therefore obligatory to the extent to which, and for as long as, it is shown to accomplish its proper finality, which is the hydration and nourishment of the patient. In this way suffering and death by starvation and dehydration are prevented.
"Second question: When nutrition and hydration are being supplied by artificial means to a patient in a 'permanent vegetative state' may they be discontinued when competent physicians judge with moral certainty that the patient will never recover consciousness?
"Response: No. A patient in a 'permanent vegetative state' is a person with fundamental human dignity and must, therefore, receive ordinary and proportionate care which includes, in principle, the administration of food and water even by artificial means."
A feeding tube is not intended to cure the cancer or other disease. Its purpose is nourishment and the prevention of suffering from hunger and thirst. Grandma's feeding tube may morally be removed only when she cannot assimilate the food and water or when it is disproportionately painful and the removal is intended only to relieve the pain, with the implicit intent to replace it as soon as it can be done without causing such pain. One could apparently also be justified in removing the tube in the closing minutes before death when the lack of food and water will not cause discomfort and will not contribute to the death, subject to the duty to put it back if the expected death does not occur. The fact Grandma is incurable or will never recover consciousness does not justify starving or dehydrating her to death. To remove a feeding tube with the intent to end Grandma's life is "murder." CCC, 2277.
Whatever President Obama does to ration health care, each of us ought to be aware of the principles that govern our own care and the care of those for whom we are responsible.
Professor Emeritus Charles E. Rice is on the law school faculty. He may be reached at rice.1@nd.edu or (574) 633-4415.
The views expressed in this column are those of the author and not
necesarily those of The Observer.
