Artificial Respiration and AHN: Some Similarities and Differences

In this paper I use the acronym DPU to describe both coma patients and patients in a persistent vegetative state. The characteristic of such patients relevant to the moral analysis is their lack of consciousness, which condition is diagnosed as permanent. Use of this acronym avoids the dehumanizing term PVS.

I do not address the question of whether AHN should be considered medical treatment or basic health care. Many courts and authors have classified AHN as medical treatment, while others vigorously oppose such classification. AHN is a means of preserving life and once the issue is framed in terms of the limits on one's duty to prolong life, resolution of this controversy becomes less important. See Connery S.J. , John R. , “The Ethics of Withholding/Withdrawing Nutrition and Hydration”, Linacre Quarterly, 54: 1 (February, 1987), pp. 17, 19 (hereinafter cited as “AHN Ethics”). Within the traditional approach the ordinary/extraordinary analysis applied to both the means of curing a disease and means which supplant a natural function, Cronin, Daniel A., “The Moral Law in Regard to the Ordinary and Extraordinary Means of Conserving Life”, in Conserving Human Life (Braintree: The Pope John XXIII Medical-Moral Research and Educational Center, 1989) (hereinafter cited as Conserving Human Life), at 83.

Authors who consider AHN and AR indistinguishable include the following: Brock, Dan W., “Foregoing Life-Sustaining Food and Water: Is It Killing?”, in By No Extraordinary Means: The Choice to Forgo Life-Sustaining Food and Water (Joanne Lynn ed., 1989) (here in after cited as By No Extraordinary Means), pp. 117ff; Cranford, Ronald, “Patients with Permanent Loss of Consciousness,” id., pp. 186-94, at 189-92; Paris, S.J., John J. and Richard A. McCormick, S.J., “The Catholic Tradition On the Use of Nutrtion and Fluids,” America, May 2, 1987, pp. 356ff; Moraczewski, O.P., Albert S., “The Moral Option Not to Conserve Life Under Certain Conditions,” in Conserving Human Life, op. cit., pp. 257-68; and Cahill Lisa Sowle , “Bioethical Decisions to End Life,”Theological Studies, 52: 1 (March, 1991), pp. 113–14. The discussion in parts (a) and (b) of Part 2 of the text is intended to set forth in summary fashion reasons representative of the arguments of those who consider AHN and AR indistinguishable and those who consider them essentially different. Each author referred to does not necessarily use all of the reasons discussed.

Authors who consider AHN and AR fundamentally different include the following: Barry, O.P., Robert, “Feeding the Comatose and the Common Good in the Catholic Tradition,” Thomist, 53(1989), pp. 1-30; Grondelski John M. , “Removal of Artificially Supplied Nutrition and Hydration: A Moral Analysis,” Irish Theological Quarterly, 55 (1989), pp. 291–302, at 298; Meilasnder, Gilbert, “Caring for the Permanently Unconscious Patient,” in By No Extraordinary Means, op. cit., pp. 195-201, at 197; Weisbard, Alan J. and Mark Siegler, “On Killing Patients with Kindness: An Appeal for Caution,” id., pp. 108-16, at 111-12; Griese, Orville N., “Feeding the Hopeless and the Helpless,” in Conserving Human Life, op. cit., pp. 149ff; and McHugh, James, “Artificially Assisted Nutrition and Hydration,” Origins 19: 19 (Oct. 12, 1989), p. 314.

For example, Moraczewski , op. cit., at 268 states the following: “In a particular case, if one may morally remove the respirator, one also, by same principles, could morally remove the feeding tubes.”

References in this paper to withholding or withdrawing treatment are meant to refer to the discontinuation of treatment once it has begun or to decisions not to initiate treatment.

The facts of the Quinlan case are described in detail in In Re Quinlan, 70 N.J. 10, 51, 355 A.2d 647 (1976) and in the testimony at the trial level, see “In the Matter of Karen Quinlan: The Complete Legal Briefs, Court Proceedings, and Decision in the Superior Court of New Jersey” (1975) (hereinafter cited as Quinlan Proceedings). The court referred to Karen as terminal at least twice. 70 N.J. at 21, 39.

Id. 70 N.J. at 24-26.

Id. at 26. Later cases cite Quinlan as a case involving a terminal patient. E.G., Cruzan v. Harmon, 760 S.W. 2d 408 (Mo. banc 1988); Matter of Conroy, 98 N.J. 321, 486 A. 2d 1209, 1228 (1985).

In Re Quinlan, op. cit. at 48.

Bishop Casey's statement is contained in Quinlan , and Quinlan , Karen Ann: The Quinlan's Tell Their Story (New York: Bantam Books, 1977), 309–18.

Pope Pius XII's Address to the Congress of the Italian Anesthesiological Society, on February 24, 1957, repr. in Horan Dennis J. , and Mall David , ed. Death, Dying and Euthanasia (Washington, D.C.: University Publications of America, 1977), p. 281.

Casey Bishop , op. cit. at 311.

The sources cited by Bishop Casey with terminal coma patients and the justification for foregoing extraordinary means on the grounds of both uselessness and burden, including burden to the family. See Pope Pius XII's address, op. cit.; Kelly , Gerald S.J. , “The Duty to Preserve Life”, Theological Studies, 12 (1951), pp. 550ff.

May William E. , Human Existence, Medicine and Ethics: Reflections on Human Life (Chicago: Franciscan Herald Press, 1977), pp. 150-51; Ramsey, Paul, Ethics at the Edges of Life (New Haven: Yale University Press, 1978), pp. 268-69. Both Ramsey and May concluded that a decision to withdraw the feeding tube from Karen Quinlan would have been a morally acceptable choice. Ramsey, op. cit. at 270; May, op.cit. at 150-51. Both writers have opposed the withdrawal of AHN from a nondying DPU patient. See William E. May, Robert Barry, O.P., Msgr. Orville Griese, Germain Grisez, Brian Johnstone, C. Ss. R., Thomas J. Marzen, J.D., Bishop James T. McHugh, S.J.D., Gilbert Meilaender, Ph.D., Mark Siegler, M.D., and Msgr. William Smith, “Feeding and Hydrating the Permanently Unconscious and Other Vulnerable Persons,” Issues in Law & Medicine, 3: 3 (1987), pp. 203-211 (hereinafter cited as the “1987 Statement”). Prof. Ramsey was a signatory to 1987 Statement and has objected to the use of his name as authority for extending his conclusion to non-terminal patients. See his letter to the editor in America, 156 (1987), pp. 449-50.

The condition of Nancy Cruzan is described in detail in the opinion of the Supreme Court of Missouri. Cruzan v. Harmon, 760 S.W.2d 408 (Mo. banc 1988), aff, d sub nom., Cruzan v. Director, Mo. Dept. of Health, 110 S. Ct. 2841 (1990). The Missouri Supreme Court held that since the burdens of her treatment were not excessive, in the absence of clear and convincing evidence of Ms. Cruzan's wishes, the interest of the State in life prevailed over her right to refuse treatment. The United States Supreme Court affirmed and held that the State of Missouri may require an individual to give clear and convincing evidence of such individual's wishes regarding life support treatment decisions and that, in the absence of such evidence, the State may legitimately advance an interest in life by requiring the continuation of treatment. Subsequent to the U.S. Supreme Court decision, petitioners submitted “additional” evidence to the Missouri Circuit Court. On December 14, 1990. the Circuit Court authorized the discontinuation of AHN. The Circuit Court's decision is reprinted in Issues in Law & Medicine, 6: 4 (1991), pp. 433-36. Nancy died on December 26, 1990.

Id. The cost of Nancy's feeding formula constitutes 2.6% (i.e., $234 per month or $7.80 per day) of the total cost of her care. See Harris, Curtis E. and Barry A. Bostrom, “Is the Continued Provision of Food and Fluids in Nancy Cruzan's Best Interests?” Issues in Law & Medicine, 5: 4 (1990), pp. 415-436, at 425.

See Quinlan Proceedings, op. cit., pp. 223 (Dr. Morse), 314 (Dr. Korein), 485 (Dr. Plum), 502 (Dr. Cook). However, in some instances, such description appears in the context of a discussion of coma, or comatose states. Id., at 222-23 (Dr. Morse), 502, 504 (Dr. Cook). And, the attorneys summarize the testimony of the medical experts by describing Karen as being in a coma, or comatose. Id., at 194 (Mr. Armstrong), 516 (Mr. Porzio, who uses the term interchangeably with the term persistent vegetative state).

Casey Bishop , op. cit. at 314; Ramsey, op. cit. at 269.

Cranford Ronald , “The Persistent Vegetative Slate; The Medical Reality (Getting the Facts Straight),” Hastings Center Report, 18: 1 (Feb./Mar. 1988), pp. 27–32, at p. 28.

Id.

Quinlan Proceedings, op. cit., at pp. 469-71.

Karen died from pneumonia in 1985 at the age of 31.

For a more elaborate discussion of the meaning of a terminal illness as applied to DPU patients see Vaccari Michael A. , “The Inability to Swallow as a Fatal Pathology: Comments of the McHugh/O'Rourke Correspondence and the Removal of Life-Sustaining Treatment,” Issues in Law & Medicine, 7: 2 (1991), pp. 155–67.

Connery S.J. , John R. , “Prolonging Life: The Duty and Its Limits”, Linacre Quarterly, 47: 2 (May, 1980), pp. 151–165, at p. 156 (hereinafter cited as “Prolonging Life”).

Id. Germain Grisez analyzes the Quinlan case in a similar fashion. See Grisez, Germain, “Should Nutrition and Hydration Be Provided to Permanently Unconscious and Other Mentally Disabled Persons?”, 5: 2 Issues in Law & Medicine, 5: 2 (1989), pp. 165-79 at p. 179.

Fr. Connery expresses this distinction as follows: When one withholds or withdraws a means to preserve life because it is too burdensome, his intention is to spare the patient the burden somehow involved in the use of the means. There is no intention of bringing on the death of the patient. Even if the patient lives (as in the Quinlan case), the goal is achieved. Connery, AHN Ethics, op. cit. at pp. 22-23. Fr. Connery's next sentence in the passage quoted in the text is as follows: “He or she is spared the burdensome means.” Id. at p. 23. However, this analysis should not apply to cases involving DPU patients since it is not their burden that one generally (absent a statement made by the patient before becoming unconscious) seeks to end.

The term “family” is used broadly to refer to loved ones, relatives and friends. The term “society” also is used broadly to refer to the relevant community and to include the hospital and its staff, the local community and state and national governments. The analysis of burden on the basis of burden to society is beyond the scope of this paper. See 1987 Statement, op. cit., at p. 211; Connery, AHN Ethics, op. cit., at pp. 21-22.

The proportionality analysis has received much attention since the Vatican used the concept in its Declaration on Euthanasia. Congregation of the Faith, “Declaration on Euthanasia,” Origins 10: 10 (May 5, 1980), p. 154. Proportionality is an additional, rather than the exclusive, basis for a determination of burden. A treatment may be burdensome per se to a patient, regardless of the benefits. See Connery S.J. , John R. , “In the Matter of Clare Conroy”, Linacre Quarterly. 52: 4 (Nov. 1985), pp. 321–328, at p. 325.

E.g., the case of Lawrence McAfee, Georgia v. McAfee, 259 Ga. 579, 385 S.E. 2d 651 (1989), and the position of the Archbishop of Atlanta thereon, “Georgia Man Asks to Turn Off Life-Sustaining Ventilator,” Origins, 19: 17 (Sept. 1989), pp. 273-279. Cases of incompetent patients raise additional questions concerning surrogate decisionmaking. In addition, the incompetency of the patient may add to the burdensomeness of the treatment. E.g., Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977). See Connery, Prolonging Life, op. cit., at p. 157.

While the cost of a respirator and ICU may be considerable, in most cases the cost of AHN is not significant. See note 17 supra.

See Grisez , op. cit., at pp. 170–71, where he distinguishes between anguish over a patient's condition and anguish related to a patient's disability.

The catheter inserted in her bladder, the continuous administration of antibiotics, the routine testing to check for infection, the utilization of a urethral catheter, the treatment for her decubiti — all of these aspects of care, coupled with the prospect that her condition was irreversible, provided grounds for a decision to forego certain aspects of that treatment.

Grisez, op. cit., at p. 179, See also Grisez Germain , and Boyle Joseph M. Jr. , Life and Death with Liberty and Justice: A Contribution to the Euthanasia Debate (Notre Dame: University of Notre Dame Press, 1979), at pp. 273–75.

Quinlan Proceedings, op. cit., at p. 373. The cost was expensive to the State, and this could constitute grounds for a determination of burden to the community. There is no evidence that Karen would have discontinued treatment on this basis if she were conscious and no evidence that the decision of her parents was made on this basis.

Id. at pp. 423–49.

There are many differences in the conditions of Karen Quinlan and Nancy Cruzan, such as the nature and origin of their injuries, the areas of the brain damaged and the length of the period of unconsciousness. Notwithstanding such differences, there are sufficient similarities in the conditions of the two patients for purposes of the analysis in the text.

See “Brief of the Medical Issues Task Force of the United Handicapped Federation and the Ethics and Advocacy Task Force of the Nursing Home Action Group as Amici Curiae,” p. 30, filed in the Circuit Court rehearing.