Bioethics & the LawBioethics & the LawA (Very) Brief IntroductionA (Very) Brief Introduction

Clayton L. Thomason, J.D., M.Div.Clayton L. Thomason, J.D., M.Div.

Asst. Professor, Dept. of Family Practice & Center for EthicsAsst. Professor, Dept. of Family Practice & Center for Ethics

College of Human MedicineCollege of Human Medicine

Adjunct Professor, MSU College of LawAdjunct Professor, MSU College of Law

Michigan State UniversityMichigan State University

thomaso5@msu.eduthomaso5@msu.edu

http://www.msu.edu/~thomaso5http://www.msu.edu/~thomaso5

American Legal SystemAmerican Legal System

Statutory LawStatutory Law Promulgated by legislaturesPromulgated by legislatures Offers positivistic rulesOffers positivistic rules

Common Law (Case Law)Common Law (Case Law) Judges seek to resolve conflicts in specific casesJudges seek to resolve conflicts in specific cases Through adversarial systemThrough adversarial system Principles and doctrines develop over timePrinciples and doctrines develop over time

Administrative LawAdministrative Law Criminal/Civil LawCriminal/Civil Law State/Federal LawState/Federal Law Constitutional LawConstitutional Law

Similarities between Productive Similarities between Productive Moral/Moral/LegalLegal Conversation . . . Conversation . . .

Includes people of diverse Includes people of diverse backgrounds (personal and backgrounds (personal and professional)professional) Legal Process of Discovery, expert Legal Process of Discovery, expert

witnesses, evidencewitnesses, evidence Lays as many ethical considerations as Lays as many ethical considerations as

possible on the tablepossible on the table Litigation = Adversarial System seeks truth Litigation = Adversarial System seeks truth

by hearing disparate perspectivesby hearing disparate perspectivesCf. Brody H, “Ethics, Virtue & Professionalism: An Overview,” Introductory Lecture, HM-546, 2003

Similarities between Productive Similarities between Productive Moral/Moral/LegalLegal Conversation . . . Conversation . . .

Ethical considerations are critically Ethical considerations are critically weighed for pertinence to case at handweighed for pertinence to case at hand Legal principles applied to facts of caseLegal principles applied to facts of case

Often reason by analogy: have we been Often reason by analogy: have we been successful with similar cases in past?successful with similar cases in past? Legal Precedent = reasoning by analogyLegal Precedent = reasoning by analogy

Appeals to rules and principles (e.g., Appeals to rules and principles (e.g., patient autonomy) are tools of inquiry, not patient autonomy) are tools of inquiry, not rigid formulasrigid formulas But precedent not blindly followed, can changeBut precedent not blindly followed, can change

Similarities between Productive Similarities between Productive Moral/Moral/LegalLegal Conversation Conversation

Basic moral value, Basic moral value, respect for othersrespect for others modeled in process as well as in outcomemodeled in process as well as in outcome Ideas others put on table are critically Ideas others put on table are critically

challenged and questionedchallenged and questioned Questioning is done Questioning is done withoutwithout suggesting suggesting

disrespect for the person who holds differing disrespect for the person who holds differing moral viewsmoral views

The person who disagrees with you is your The person who disagrees with you is your best resource in discovering moral truthbest resource in discovering moral truth

= Basis of Adversarial System, to seek “truth”= Basis of Adversarial System, to seek “truth”

Dr. Brody’s Two Questions:Dr. Brody’s Two Questions:

What ought to be done in this situation, all What ought to be done in this situation, all things considered?things considered? ““Snapshot ethics”Snapshot ethics” Main focus of HM 546 ethics moduleMain focus of HM 546 ethics module Focus of Legal Standards, Rules, Case LawFocus of Legal Standards, Rules, Case Law

How ought I live a life of moral excellence in How ought I live a life of moral excellence in my chosen profession?my chosen profession? ““Video ethics”Video ethics” Main focus of professionalism curriculumMain focus of professionalism curriculum Law does not generally seek to address – leaves Law does not generally seek to address – leaves

to professionto profession

Similarities Between Similarities Between Law & BioethicsLaw & Bioethics

Both provide guidance on what physicians Both provide guidance on what physicians may and may not domay and may not do

The law may reflect an ethical consensus The law may reflect an ethical consensus in societyin society

Court opinions offer reasons for decisions, Court opinions offer reasons for decisions, provide analysis of pertinent issuesprovide analysis of pertinent issues

Clinicians, ethics committees should be Clinicians, ethics committees should be aware of what law says about issues in aware of what law says about issues in clinical ethicsclinical ethics

But . . .But . . .

The law cannot offer definitive answers to The law cannot offer definitive answers to every ethical dilemma in medicine.every ethical dilemma in medicine.

Knowing “what the law is ” does not save Knowing “what the law is ” does not save us from doing the hard work of moral us from doing the hard work of moral reflection & discourse.reflection & discourse.

Law & Ethics DifferLaw & Ethics Differ

Law sets only minimum standards of conductLaw sets only minimum standards of conduct Law explicitly grants physicians discretion in Law explicitly grants physicians discretion in

clinical decision makingclinical decision making Law may provide no clear action guides in some Law may provide no clear action guides in some

clinical ethical situationsclinical ethical situations Law and ethics may directly conflictLaw and ethics may directly conflict

Actions Actions permittedpermitted by law may be ethically by law may be ethically controversialcontroversial

While actions While actions prohibitedprohibited by law may be regarded as by law may be regarded as ethically defensible by many peopleethically defensible by many people

Authority of law based on police power of stateAuthority of law based on police power of state

Law in Clinical EthicsLaw in Clinical Ethics

Try to resolve ethical conflicts as close to Try to resolve ethical conflicts as close to the bedside as possible.the bedside as possible.

Courts are not optimally suited to make Courts are not optimally suited to make medical decisions.medical decisions.

Courts are the tribunal of last resort for Courts are the tribunal of last resort for resolving ethical conflicts.resolving ethical conflicts.

In clinical ethics, over-reliance on “what’s In clinical ethics, over-reliance on “what’s legal” may undermine careful, complete, legal” may undermine careful, complete, and subtle ethical analysis.and subtle ethical analysis.

cf., De Ville K. “What does the law say?” -- Law, ethics, and medical decision making. West J Med 1994;160:478-480.

Resolve ethical conflicts . . .Resolve ethical conflicts . . .

as close to the bedside as close to the bedside as possible.as possible.

An Example:An Example:Terri SchiavoTerri Schiavo

41 y/o woman in Persistent Vegetative State (PVS) 41 y/o woman in Persistent Vegetative State (PVS) since 1990since 1990 When heart stopped temporarily, result of potassium When heart stopped temporarily, result of potassium

imbalanceimbalance Breathed on own, but could not swallowBreathed on own, but could not swallow

Feeding tube needed for nutrition/hydrationFeeding tube needed for nutrition/hydration

Husband battled her parents over whether she Husband battled her parents over whether she should be allowed to dieshould be allowed to die As he asserted she would have wantedAs he asserted she would have wanted Drs. Testifying on his behalf held out no hope for recoveryDrs. Testifying on his behalf held out no hope for recovery Parents maintained that Terri could be helped by therapyParents maintained that Terri could be helped by therapy

Diagnosis of Persistent Diagnosis of Persistent Vegetative StateVegetative State

Vegetative StateVegetative State No cortical brain function, but preserved brainstem function No cortical brain function, but preserved brainstem function

(unlike “brain death”)(unlike “brain death”) No purposeful activity, response to verbal commandsNo purposeful activity, response to verbal commands No experience of PainNo experience of Pain Dx by experienced neurologistDx by experienced neurologist

Persistent Vegetative State (PVS)Persistent Vegetative State (PVS) VS lasting > 1 monthVS lasting > 1 month Prognosis of recovery of consciousness approaches zero % Prognosis of recovery of consciousness approaches zero %

after 3 monthsafter 3 months Mean survival = 2-5 yearsMean survival = 2-5 years Approx 10K - 25K adults and 4-10K children in PVSApprox 10K - 25K adults and 4-10K children in PVS

See Lo, ch. 20

Definition of PVS Definition of PVS in Florida Statutein Florida Statute

Florida Statue 765.101Florida Statue 765.101::Persistent vegetative state means a Persistent vegetative state means a “permanent and irreversible condition of “permanent and irreversible condition of unconsciousness in which there is:unconsciousness in which there is: (a) The absence of voluntary action or (a) The absence of voluntary action or

cognitive behavior of ANY kind. cognitive behavior of ANY kind. (b) An inability to communicate or interact (b) An inability to communicate or interact

purposefully with the environment.”purposefully with the environment.”

Procedural History . . .Procedural History . . .

1998-Michael petitions guardianship court to authorize 1998-Michael petitions guardianship court to authorize withdrawal of life-prolonging procedures. After trial, withdrawal of life-prolonging procedures. After trial, order so authorizedorder so authorized ““clear & convincing evidence” of PVSclear & convincing evidence” of PVS Affirmed on appeal to Fla 2d Dist.Affirmed on appeal to Fla 2d Dist.

In re Guardianship of Schiavo, 789 So. 2d 348 (Fla. 2001)In re Guardianship of Schiavo, 789 So. 2d 348 (Fla. 2001) Schindlers filed 4 procedural appealsSchindlers filed 4 procedural appeals Trial Ct. order upheld, tube removedTrial Ct. order upheld, tube removed

Oct. 2003-FL Legislature enacts “Terri’s Law”Oct. 2003-FL Legislature enacts “Terri’s Law” chapter 2003-418chapter 2003-418 Gov. Bush signed, then issued executive order replacing Gov. Bush signed, then issued executive order replacing

tubetube

. . . Procedural History . . .. . . Procedural History . . . Michael files for declaratory judgment in Circuit Ct, Michael files for declaratory judgment in Circuit Ct,

which ruled in his favorwhich ruled in his favor 2d Dist Ct of Appeal certified to FL S. Ct.2d Dist Ct of Appeal certified to FL S. Ct.

Sept. 23, 2004-FL Supreme Court declares law Sept. 23, 2004-FL Supreme Court declares law unconstitutionalunconstitutional Violation of separation of powersViolation of separation of powers Affirms trial court’s orderAffirms trial court’s order

Oct. 4, 2004- Gov. Bush files appealOct. 4, 2004- Gov. Bush files appeal Jan. 24, 2005- U.S. Supreme Ct. refuses to hear Bush Jan. 24, 2005- U.S. Supreme Ct. refuses to hear Bush

appeal > case goes back to Circuit Ct.appeal > case goes back to Circuit Ct. 2/25/05- Judge Greer orders tube removed on 3/18/052/25/05- Judge Greer orders tube removed on 3/18/05

. .. .Procedural History. .. .Procedural History

3/16/05- Fl 2d Appellate Ct. denies stay of order3/16/05- Fl 2d Appellate Ct. denies stay of order 3/18/05 – Feeding tube removed3/18/05 – Feeding tube removed 3/19/05- Emergency appeal to US Supreme Ct. 3/19/05- Emergency appeal to US Supreme Ct.

– cert. denied.– cert. denied. 3/21/05- Pres. Bush signs federal bill into law 3/21/05- Pres. Bush signs federal bill into law

after passage by US House/Senateafter passage by US House/Senate Fed. Dist., 11Fed. Dist., 11thth Cir, US S. Ct. all reject appeals Cir, US S. Ct. all reject appeals 3/31/05-Terri Schiavo dies in a Florida hospice.3/31/05-Terri Schiavo dies in a Florida hospice.

http://news.findlaw.com/legalnews/lit/schiavo/index.html

What lessons can be learned?What lessons can be learned?

““Hard cases make bad law” Hard cases make bad law” Examine conflicts between law and clinical Examine conflicts between law and clinical

ethicsethics Terri had no advance directive to guide Terri had no advance directive to guide

decisions about her caredecisions about her care Clinical decisions about care are best made as Clinical decisions about care are best made as

close to the bedside as possibleclose to the bedside as possible Court decisions should be last resortCourt decisions should be last resort Legislative resolution? Executive intervention?Legislative resolution? Executive intervention?

Families need to have “caring conversations” Families need to have “caring conversations” about end of life wishesabout end of life wishes

Other Significant Cases on Other Significant Cases on Life-Sustaining Interventions Life-Sustaining Interventions

(see Lo, ch. 23) . ..(see Lo, ch. 23) . .. In the Matter of QuinlanIn the Matter of Quinlan, Supreme Court of , Supreme Court of

New Jersey (1976) 70 N.J. 10, 355 A. 2d. New Jersey (1976) 70 N.J. 10, 355 A. 2d. 647 647 22 y/o woman in PVS; father asked court to 22 y/o woman in PVS; father asked court to

allow ventilator to be withdrawn.allow ventilator to be withdrawn. New Jersey’s Supreme Court recognizes that New Jersey’s Supreme Court recognizes that

a patient’s constitutional right to privacy a patient’s constitutional right to privacy includes a right to terminate medical includes a right to terminate medical treatment. treatment.

. . . Other Cases . . .. . . Other Cases . . .

Cruzan v. Director, MDHCruzan v. Director, MDH, , U.S. Supreme Court 497 U.S. Supreme Court 497 U.S. 261 (1990) U.S. 261 (1990) 33 y/o in PVS, had said she “didn’t want to live . . . As a 33 y/o in PVS, had said she “didn’t want to live . . . As a

vegetable”; parents requested tube feedings removed.vegetable”; parents requested tube feedings removed. Chief Justice Rehnquist writes for the Supreme Court’s Chief Justice Rehnquist writes for the Supreme Court’s

majority opinion, holding that the Constitution gives “a majority opinion, holding that the Constitution gives “a competent person a constitutionally protected right to competent person a constitutionally protected right to refuse lifesaving hydration and nutrition,” refuse lifesaving hydration and nutrition,”

but “a State may apply a clear and convincing evidence but “a State may apply a clear and convincing evidence standard [of the patient’s wishes] in proceedings where a standard [of the patient’s wishes] in proceedings where a guardian seeks to discontinue nutrition and hydration of a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state.” person diagnosed to be in a persistent vegetative state.”

. . . Other Cases . . .. . . Other Cases . . .

ConservatorshipConservatorship of of WendlandWendland, , Calif. Supreme Calif. Supreme Court (Aug. 9, 2001). Court (Aug. 9, 2001). California case holding that, under the State’s law, a California case holding that, under the State’s law, a

conservator may not withhold artificial nutrition and conservator may not withhold artificial nutrition and hydration “from a conscious conservatee who is not hydration “from a conscious conservatee who is not terminally ill, comatose, or in a persistent vegetative terminally ill, comatose, or in a persistent vegetative state, and who has not left formal instructions for state, and who has not left formal instructions for health care or appointed an agent or surrogate for health care or appointed an agent or surrogate for health care decisions...absent clear and convincing health care decisions...absent clear and convincing evidence the conservator’s decision is in accordance evidence the conservator’s decision is in accordance with either the conservatee’s own wishes or best with either the conservatee’s own wishes or best interest.” interest.”

. . . Other Cases. . . Other Cases

BrophyBrophy v. New England Sinai Hospital v. New England Sinai Hospital, , Supreme Judicial Court of Massachusetts Supreme Judicial Court of Massachusetts (1986) 398 Mass. 417; 497 N.E.2d 626(1986) 398 Mass. 417; 497 N.E.2d 626 Massachusetts case holding that the “State’s Massachusetts case holding that the “State’s

interest in the preservation of life does not interest in the preservation of life does not overcome [the patient’s] right to discontinue overcome [the patient’s] right to discontinue treatment,” and that such a position is not treatment,” and that such a position is not contrary to the “State’s interest in the contrary to the “State’s interest in the prevention of suicide.” prevention of suicide.”

Some Legal Issues Some Legal Issues in HM-546 . . .in HM-546 . . .

Week 1: Introduction to Ethics & LawWeek 1: Introduction to Ethics & Law Lo, Chs. 1, 2, also 23Lo, Chs. 1, 2, also 23

Week 2: Competent Patient decisionsWeek 2: Competent Patient decisions Legal standards re: best interests, decision-making Legal standards re: best interests, decision-making

capacity, refusal of treatment, PAS, active euthanasiacapacity, refusal of treatment, PAS, active euthanasia See Lo, ch. 4, 10, 11, 19See Lo, ch. 4, 10, 11, 19

Week 3: Decisions for Incompetent PatientsWeek 3: Decisions for Incompetent Patients Legal standards re: brain death, persistent vegetative Legal standards re: brain death, persistent vegetative

state, coma, state’s interest in preserving life, surrogate state, coma, state’s interest in preserving life, surrogate decision-making,artificial nutrition & hydration, Michigan decision-making,artificial nutrition & hydration, Michigan lawlaw

Especially Lo, chs. 8, 9, 12, 13, 20, 21, 23Especially Lo, chs. 8, 9, 12, 13, 20, 21, 23

. . . Legal Issues in HM-546 . . .. . . Legal Issues in HM-546 . . . Week 4: Children & InfantsWeek 4: Children & Infants

Legal standards re: non-discrimination against the handicapped; Legal standards re: non-discrimination against the handicapped; best interest of infants, family, & society; state’s interest in decision-best interest of infants, family, & society; state’s interest in decision-makingmaking

See Lo, ch. 16See Lo, ch. 16 Week 5: Reproductive IssuesWeek 5: Reproductive Issues

Role of civil discourse Role of civil discourse (see Matthews-Green, “Subversive Civility,” from Week 1)(see Matthews-Green, “Subversive Civility,” from Week 1)

Legal/ethical status of fetus, abortion laws (Lo, Ch. 13)Legal/ethical status of fetus, abortion laws (Lo, Ch. 13) Actions permitted by law may be ethically controversialActions permitted by law may be ethically controversial

Week 6: Flow of Medical InformationWeek 6: Flow of Medical Information Legal/ethical standards for truth-telling, informed consent, Legal/ethical standards for truth-telling, informed consent,

confidentialityconfidentiality See Lo, ch. 3, 5, 6, 34, 38See Lo, ch. 3, 5, 6, 34, 38

. . . Legal Issues in HM-546. . . Legal Issues in HM-546

Week 7: GeneticsWeek 7: Genetics Role of law in regulating genetic technologies?Role of law in regulating genetic technologies? Legal standards re: genetic privacy, procreative Legal standards re: genetic privacy, procreative

liberty, health care justice, obligations of partiesliberty, health care justice, obligations of parties See Lo, ch. 42See Lo, ch. 42

Week 8: Research Issues, Justice and Conflicts Week 8: Research Issues, Justice and Conflicts of Interestof Interest Legal standards for protections of human subjectsLegal standards for protections of human subjects Legal/ethical definitions of conflict of interestLegal/ethical definitions of conflict of interest See Lo, ch.28, 29, 30, 32, 33See Lo, ch.28, 29, 30, 32, 33

Further ResourcesFurther Resources Shapiro MH, Spece RG, Dresser R, Clayton EW. Shapiro MH, Spece RG, Dresser R, Clayton EW. Bioethics and Law: Bioethics and Law:

Cases, Materials and ProblemsCases, Materials and Problems (2d ed.). St. Paul, MN, West Publ. Co., (2d ed.). St. Paul, MN, West Publ. Co., 2003.2003.

Menikoff J. Menikoff J. Law and Bioethics: An IntroductionLaw and Bioethics: An Introduction. Washington, DC, . Washington, DC, Georgetown Univ. Press, 2001.Georgetown Univ. Press, 2001.

Orentlicher D. Orentlicher D. Matters of Life and Death: Making Moral Theory Work in Matters of Life and Death: Making Moral Theory Work in Medical Ethics and the Law.Medical Ethics and the Law. Princeton, NJ, Princeton Univ. Press, 2001. Princeton, NJ, Princeton Univ. Press, 2001.

Rich B. Rich B. Strange Bedfellows: How Medical Jurisprudence has Influenced Strange Bedfellows: How Medical Jurisprudence has Influenced Medical Ethics and Medical PracticeMedical Ethics and Medical Practice. New York, NY, Kluwer . New York, NY, Kluwer Academic/Plenum Publ., 2001.Academic/Plenum Publ., 2001.

Meisel A. Legal myths about terminating life support. Arch Int Med. Meisel A. Legal myths about terminating life support. Arch Int Med. 1991;151:1497-1502.1991;151:1497-1502.

Meisel A, Kuczewski M. Legal and ethical myths about informed Meisel A, Kuczewski M. Legal and ethical myths about informed consent. Arch Int Med. 1996;156:2521-2526.consent. Arch Int Med. 1996;156:2521-2526.

Harrington JA. Art or science? Understanding medicine and the common Harrington JA. Art or science? Understanding medicine and the common law. Health L J. 2001;9:129-150.law. Health L J. 2001;9:129-150.