Legalizing Euthanasia by Omission

And Making It a Doctor's Order

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By E. Christian Brugger

DENVER, Colorado, AUG. 24, 2011 (Zenit.org).- A problematic new end-of-life medical form is rapidly gaining ascendency in U.S. healthcare. It is called the "POLST" document. (In my own state of Colorado, it's called a MOST document.) The acronym stands for Physician Orders for Life-Sustaining Treatment. (MOST = "Medical Orders for Scope of Treatment;" its provisions are almost identical across states.) Click here to see an example of a standard POLST document.

The document consolidates on a single form provisions formerly dispersed over several documents: it acts as a living will specifying the scope of medical interventions a patient wishes in case of incapacitation; it makes specific provision for a do-not-resuscitate order (DNR); it has a box to check in the event a patient wishes to refuse treatment with antibiotics; and it allows a patient to designate a proxy decision maker. 

Similar to other advanced directives, patients complete the POLST form when their capacities are in tact and the document becomes effective when consciousness is compromised. 

But different from older-type directives, the POLST document has provision for the signature of a physician (or physician assistant). This gives the designations on the document the force of an actionable medical order. 

The national trend, supported by Compassion & Choices(formerly the Hemlock Society), is to structure state laws on medical directives in accord with the POLST paradigm (as illustrated by its recent adoption by states such as California, Colorado, Hawaii, Idaho, New York, Pennsylvania, Oregon, Tennessee, Utah, Washington, West Virginia and Wisconsin). 

Why is the document problematic? I will speak from first-hand knowledge of the legislation that normalized the document in Colorado. I believe my criticisms are relevant to all POLST-type laws in the U.S. 

The Colorado law (signed in summer 2010) abrogated an extremely important condition on living wills going back two decades. The former law authorized adults to direct medical professionals to withhold or withdraw life-support only on the condition that they were terminally ill (or in a so-called persistent vegetative state [PVS]). So for purposes of the law the refusal was conditioned by the fact that a patient was already dying. (The PVS provision was accepted under the false assumption that it was a terminal condition.) Forty-five percent of the states in the U.S. presently impose similar statutory limitations on the removal of life-support.

The POLST-type legislation removes the condition that a patient is terminally ill or diagnosed in a PVS before a refusal order is actionable. In other words, the new law permits any adult patient to refuse any treatment at any time for any reason in the event they lack decisional capacity; and health care professionals, directed by a doctor's medical order, ordinarily would be (and are) required to carry out the order. Although the law for strategic purposes is rhetorically formulated as bearing upon end-of-lifemedical decisions, it sets forth no requirement that a patient's refusal of life-support must be limited to end-of-life conditions.

If someone refuses life-support with the specific aim (or intention) of causing his or her own death, the person is choosing suicide. Morally speaking this is no different from ingesting a lethal dose of medication, or sitting in a running car with the windows closed and a hose stretching from the tail pipe to the cabin. "Why are you doing X?" If the answer is: "To die," then the person is intending self-killing, suicide, and that's always wrong.

But isn't it the case that terminally ill patients also can direct the refusal of life-support for purposes of bringing about their deaths? It is true, the condition of terminality does rule out the possibility that patients will be motivated by suicidal intentions when taking advantage of the liberties permitted by the older-type law. But in establishing the refusal of life-support in the context of medical conditions diagnosed as "terminal," the older-type law privileged as the normative context for refusing life-support the motive "to-be-free-from-burdens-in-my-remaining-days-of-life." Suffering from a condition from which one was dying, the law granted a person the civil right to refuse procedures that prolonged the dying process.

This is not the place to rehearse the ethical argument for the legitimate removal of life-support. Suffice it to say that until recently, common ethical opinion accepted the judgment that if some treatment was futile or excessively burdensome, then a person legitimately could refuse the treatment, even if its refusal promised the hastening of death. [Note: the procedure, not the life,is judged burdensome.] One intends to be free of the burden of painful, risky, or futile treatments during one's final days of life, and one accepts that one's death may be hastened as an unintended consequence.

The POLST-type law grants adults the civil right to direct healthcare professionals to remove life-sustaining procedures when those procedures are not futile and when the burden imposed by them would be offset by a reasonable hope of recovery. It juridically extends the ordinary context for the refusal of life-support to include the motive of bringing about death. Without using the term, the new law authorizes euthanasia.

This is not the only problem with the POLST model, but it's the most serious problem that the model introduces. Other problems, such as the document's provision for the removal of food and water from patients for whom they reasonably would be judged to be ordinary/proportionate care, or the simplistic designation, "No Antibiotics," whether or not such drugs are medically indicated, already infect older type documents.

When the Colorado Catholic Conference, which I assisted, was fighting (ultimately unsuccessfully) at the state capital in Denver to amend the POLST-type legislation before passage to reintroduce the condition of terminality, we argued that the legislation as written was effectively legalizing euthanasia by omission. Some legislators believed that we were being alarmist. They thought that because physician-assisted suicide was not legal in Colorado, nor explicitly legalized by the proposed legislation, we had nothing to fear. We said we thought this was short-sighted, that groups like Compassion & Choices would find fertile soil in the law for advancing its aims. Most were unconvinced.

On August 17, 2011, Compassion & Choices (CC) launched a nation-wide public education campaign entitled "Peace at Life's End – Anywhere." The euphemism means "legal self-killing anywhere in the U.S." (The press conference was held in Denver, Colorado!) The central purpose, indeed the sole purpose of the campaign is to tell people everywhere that they can kill themselves legally anywhere in the U.S.; all they've got to do is to refuse life-support, in particular food and water. The Web site reads:

One method of peaceful dying…universally available, legal, safe, painless and suitable for a gentle parting in one's own home…is the purposeful refusal of food and fluids, in medical jargon known as voluntarily stopping eating and drinking (VSED).

"VSED," its press release stated, "is a legally recognized option for mentally competent adults who wish to end their suffering." And best of all, "it requires no special laws or regulations. VSED is legal -- for patients and their caregivers -- today, in every state."

The POLST document is not a precondition for the success of CC's campaign. Any living will that permits the removal of food and water would be adequate. But the new document sure helps. 

If the POLST model is not already legally recognized in your state, five to one chance that legislation is being drafted at your state house as we speak. You might call your legislator and find out.

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E. Christian Brugger is a Senior Fellow of Ethics and director of the Fellows Program at the Culture of Life Foundation, and the J. Francis Cardinal Stafford Chair of Moral Theology at St. John Vianney Theological Seminary in Denver, Colorado.

[Readers may send questions regarding bioethics to bioethics@zenit.org. The text should include your initials, your city and your state, province or country. The fellows at the Culture of Life Foundation will answer a select number of the questions that arrive.]