ROBERT WENDLAND AND THE
"SAFER" COURSE
Modern
Versions of the "Safer" Course
Anyone
working a contemporary field of bioethics, such as environmental or
agricultural biotechnology ethics but who also knows the traditional ethics
taught in Catholic colleges in the past or with moral theology for counseling
practical decision making
will see lots of "re-inventing the wheel." Contemporary
applied ethics in biological topics have re-emphasized a moral principle of
caution when the issue is a choice of a "tool" (including policies
or actions) where there is lack of certitude about the morally correct course
of action. They call this the precautionary principle. It has various
formulations but the gist of it is that when some tool (usually new) is reasonably
suspected to have a potential for harm, due not merely to ignorance of its
unintended effects, but due to technically reasonable or plausible events
involved in the use of the tool one needs to not act until some more secure
knowledge, some removal of ignorance, can give us a better estimate of the
likely risk. And the more serious and irreversible the risk, the more seriously
one needs to be concerned with tentative and incomplete scientific opinions of
warning. One is not entitled to ignore these warnings simply because some other
scientist has a sincere opinion to the contrary.
Taking time out to check is what the principle calls for, and
by the very nature of the case, those who wish to proceed without looking
cannot point to absence of completely incontrovertible science about the two
quantities involved in risk:
probability and seriousness of impact. This would use uncertainty about
risk as a justification for abandoning caution, which turns the principle on
its head.
In traditional moral casuistry, the freedom which a
person has to choose any
sincerely probable opinion on the rightness of an action or among
the rightness of several choices of action (tool or policy) is expressed as "ubi
dubium libertas"
(where there is doubt there is freedom) . Called "probablism" this generous principle
becomes restricted when injury to "third parties" [1][1]
is involved. Then the opinion which protects the innocent third party best, or better is to be chosen.[2][2]
In its current use as the "precautionary principle" every case is involves third parties and hence requires
more restrictions on freedom to choose among opinions.
Extubation
and the Safer Choice
Applied to the Wendland case and
others of that sort, if we suppose that suicide and homicide are what are not to be done, then the decision as to
whether an act is suicide or not is much more freely decided when rival
reasonable opinions exist than when someone else’s death (i.e. a possible
homicide) is the issue. Thus if Robert Wendland were
able to communicate his desires and asked for extubation, he might be able to
say that death is not his intention, but that he rejects the tubes because they
are neither curing him nor adding to his comfort and that his death is a result
of the underlying illness and not suicide. But his surrogate decision maker is
not Robert himself and his death would be the outcome of someone else choosing
the extubation. Robert is a "third party." The conservator may make a plausible claim that
it is not homicide on the same grounds Robert used. But in the presence of also
plausible evidence that the tubes and other interventions had actually restored
him to a self-sustaining life, though diminished and handicapped, and that
Robert is not even sick, let alone dying, from any underlying disease the
surrogate must follow the safer course and is not free to choose extubation
because of the lethal and certain harm to a "third person."
There should be nothing too surprising
about this. The underlying moral principle is justice. Where third parties are
involved, we are constrained by just concerns for others. One final comment: In
California the use of a state constitutional right to privacy as a way to give
patient autonomy the freedom to reject burdensome medical technologies is
somewhat paradoxically applied here if "the safer course", or precautionary approach is
not used. It is really the autonomy of
the surrogate which is being given full range and the incompetent person's
autonomy is being erased with his/her life.[3][3]
Catholic
Institutional Ethics and the Safer Course
The conjoined hospital and individual amici brief
supporting Rose Wendland cites the Court's desire to
keep Courts out of this kind of decision making.[4][4]
So my question then is directed to the Catholic members of this brief
submitting group: What sort of caring for the patient should they be
supporting? Clearly they should be against killing or suicide by the patient since
that is not in the patient's best interest spiritually or physically. Even if
there is evidence of a willingness in conservatees
to do something indistinguishable from suicide if they became grievously
handicapped, if there is any evidence that they are willing to live now, they
should not have that earlier will imposed on them by a Catholic agent. Where
will that evidence come from in the non-comatose?[5][5]
Clearly from their behavior. Combative
behavior is clearly not such evidence, unless it is clearly and consistently
against the life-preserving equipment known to the patient as such. And this
cannot be claimed while denying cognitive/volitional ability.
The "accepted principles of
bioethics" ( p. 31, A.C. Brief in
Support of Rose Wendland in Supreme Court of Calif.)
which the petitioners refer to is claimed to be supported by court precedents (Brophy and Thor) which state "The duty of the State to
preserve life must encompass a
recognition of an individual's right to avoid circumstances in which the
individual himself would feel that efforts to sustain life demean or degrade
his humanity." It is my assertion that it is the duty of Catholic
institutions to lead rather than follow bioethicists in formulating and
interpreting principles. Hence in looking at the quotation which chooses
preservation of life as a state interest, they should not forget the list of
four state interests, especially when the list supports the unquestioned Christian
prohibition of suicide. "Preventing suicide" is one of those four
interests. As an example of leadership, when the passage just quoted refers to
"efforts to sustain life" should Catholic thinkers treat all efforts
the same? Or should they suggest that when some effort is no longer a desperate
effort to sustain a fading life, but a mere feeding via a tube of a severely
handicapped person who is not even sick,
greater proof of the consistent will of the handicapped person to have that
feeding ended would be appropriate? The request or support for the "safer"
degree of proof is a request for the most difficult to obtain evidence that the
patient would wish to die. Unlike many other kinds of medical interventions,
the withdrawal of feeding from a patient who is otherwise not even sick will
put that patient in the absolutely certain danger of death from a new cause and
not from the underlying disease. And the fact that the removal will be continued until death makes it
difficult to deny that death, from a new cause, is its intention. And the
Supreme Court stated that death is the intended purpose of the extubation. As I have written elsewhere some extubations
are legitimate exercises of the intention to "allow nature to take its
course." But here the technical evidence is clear that nature is taking no
course toward death at all and will not any time soon. It is only the
extubation that will do that. Introducing intentionally a new cause of death is
killing even in the case of a dying patient. The liceity of extubation,
consistent with Catholic prohibition on suicide, in the case of the dying
patient is argued on the grounds that the need for the tubal
feeding is due to a dying process (the underlying disease or trauma) and hence
extubation is not the introduction of a new cause of death. If this were not
true, such removal would be to kill the dying patient and would be prohibited
in Catholic teaching. This is a fortiori true when the patient is not dying at
all.
The A.C. then goes on to argue that the conservator
should follow statutory requirements "consistent with bioethical
guidelines" (ibid.) to support "wishes" or "personal
values" of the conservatee. The evidence is normally taken from prior
words of the conservatee when the "safest" course would deal with the
present will or intention of the patient. In saying that the decision by the
conservator should be based "on what the conservatee would want" the A.C. makes
an implicit appeal to the past (ibid., p.32) In the case of a cognitively
diminished patient, what he wants right now is important too. Catholic thinkers
would feel no shame and actually rejoice at the tighter requirements of proof
since the conservatee's earlier statements were almost certainly not confronted
at the time they were made with an argument that some denials of "efforts
to preserve life" would be tantamount to suicide. The hardly unlikely
event that the patient now has a different opinion about
"efforts to preserve life" and not commit suicide needs to be
entertained in pursuing the safer course.
The confinement of evidence to the past narrows the conservatee's
survival interests and enlarges the conservator's policy freedom. Since the
latter enlargement could easily mean a killing or a substitute decision to
commit suicide, this is not the direction Catholic thinking should favor.
It is true that both morally and legally
Catholic institutions are obliged to allow patients to refuse medical
interventions which can save their lives. These institutions do not have the
moral responsibility for preventing all suicides, as long as it is clear that
the hospital is not cooperating in them. But these institutions do have a moral
responsibility to lend their weight to efforts to prevent killing, and to allow
for evidence that an earlier de facto intent to choose suicide has been
abandoned. In Robert Wendland's case his efforts to secure his own comfort,
to be free of annoyance, to enjoy social contacts can reasonably be seen as
implying a desire to live. To ignore that implication is emphatically not to
take the safest course.
In this context the sifting of evidence
for negative evaluations of Robert's cognitive state by Rose Wendland and her presentations of an extremely bleak
picture of his human activity before the media are not efforts to pursue the
safest course. Catholic thinkers or speakers on this issue must face that such
negative bias expands Rose's policy freedom and narrows Robert's survival
chances. And that is the reverse of the principle of following the safest
course.
[1][1] A third party, i.e. an outsider whose interests are not actively represented or defended by advisor or advisee in a moral deliberation, but who has justice demands on the outcome.
[2][2] Sometimes this is called the principle of "tutiorism"(from the latin for "safer"), but that term sometimes refers to a systematic preference for "safer" opinions. In the absence of third party interests, there is slim meaning to "safer" among really probable opinions since to know which was more probably true one would have to know where and what truth lay. In this context "safer" means less risk of harm to others.
[3][3] The
[4][4] Amici Curiae Brief in Support of Rose Wendland and Robert Wendland
[5][5] In the comatose, another set of arguments is needed. For them, it is difficult not to say they are simply in a state of arrested dying.