CALIFORNIA BILLS PROBLEMATIC FOR TERMINALLY ILL

Two pieces of legislation could cause problems for the terminally ill and
the otherwise vulnerable.  AB 1166 would make it legal for residential
care facilities not to call emergency services for hospice patients; AB
1299 changes the definition of "terminal illness" to "incurable progressive
illness."  This could make it possible for disabled individuals to be
placed
under hospice care, allowing them to receive only palliative care, and
perhaps be denied nutrition and hydration, antibiotics, etc.  Currently
Molly Israel of the Scholl Bioethics Institute is requesting comments
that will aid her organization in opposing these two bills.  
(Contact: Molly Israel, schollbioethics@altrionet.com)

Source: American Life League "Communique" (communique@all.org)

Hawaii Man Emerges From Seven Year Coma

Honolulu, HI -- A man who regained consciousness after being in a coma for
seven years has a lot of catching up to do.

When Peter Sana slipped into a coma in March 1995, the murder trial of O.J.
Simpson was still going on.

Sana was 27 when he fell into a coma after contracting meningitis, the
inflammation of a membrane that encloses the brain and the spinal cord.

Sana has been in a Honolulu nursing home and began responding to commands
from his nurse over the last month. The nursing home staff says regular
visits from his family over the years played a large role in his recovery.
Sana's father visited every day.

From:  The Pro-Life Infonet <infonet@prolifeinfo.org>
Reply-To:  Steven Ertelt <infonet@prolifeinfo.org>
Subject:   Hawaii Man Emerges From Seven Year Coma
Source:   Associated Press ; September 7, 2002

*       *       *       *       *
'Mercy' Killing Trials Analyzed
By Bob Kellogg

Have you noticed the rash of "mercy" killings to hit the United States in
the past few weeks? As medical workers and others go to trial, the outcomes
could have a lasting impact on this country's future.

A Missouri nurse has been charged with 10 killings, a former Texas nurse
may have killed 20. A Georgia mother has confessed to shooting her two sons
to end their suffering. Why this rash of murders? Ryan Ross, of the Hemlock
Society, a supporter of mercy killing, speculates.

"It is common for caregivers and relatives and loved ones, to want to do
something to help," Ross said.

As defense lawyers tug at the heartstrings of jurors in these cases, Ross
hopes their messages will affect public opinion.

"Even in cases where somebody has engaged in murder ... it's important to
remember what their motive was in ending the life of somebody who was in
pain and suffering," he said.

Jonathan Imbody, of the Christian Medical Society, thinks God is being
forgotten.

"We have lost perspective of the eternal as a society," Imbody said. "And
we've come to think that all there is to life is what's going on in our
bodies."

He said true compassion doesn't involve murder or assisted suicide.

"True compassion doesn't mean killing the patient," Imbody said. "True
compassion doesn't mean killing your loved one. It means coming alongside
them to provide physical and spiritual comfort."

He said the outcomes of these trials will have a significant impact on
society.

"Do we want to battle aging or illness in a society where caring means
killing, or 'death with dignity' means someone puts a bullet in your brain?"

From:  The Pro-Life Infonet <infonet@prolifeinfo.org>
Reply-To:  Steven Ertelt <infonet@prolifeinfo.org>
Subject:   'Mercy' Killing Trials Analyzed
Source:   Focus on the Family; August 7, 2002


There's No Such Thing as a Mercy Killing
By Mike Ervin

Sometimes, in spite of my own perfectionist's resistance, I can't help but
feel moments of great satisfaction about the positive changes brought about
by the disability rights movement. And then along comes a newspaper story
about a so-called mercy killing.

The murderer is almost always a distraught care-giving relative who couldn't
take it any more. The killer's communities and defense attorneys rally around
them by describing those they killed with the most deeply dehumanizing terms
in the lexicon of victim-blaming. They were sufferers, they were helpless,
they were hopeless, they were burdens.

Most depressing and outrageous is when the press goes along for the ride by
giving this viewpoint the first bit of credence. The latest example is the
story of Carol Carr, 63, who was charged with two counts of murder last month
for shooting to death her two sons, Andy Byron Scott, 41, and Michael Randy
Scott, 42. Both men had Huntington's disease and were living in an
Atlanta-area nursing home.

The Chicago Tribune published a commentary in defense of Carr's alleged
actions. Lewis Whittington wrote of the "nightmarish" existence of living
with a "degenerative" disease. And what a parallel living hell it is, he
said, to have to be the one who lives with them, who has to bathe them and
move their limbs and dispose of their bodily waste.

When he talks about people with degenerative diseases, he's talking about me.
I have muscular dystrophy. I need someone every day to help me bathe and move
my limbs and dispose of my bodily waste. And when he talks about family
members who can't give them the help they need, he's talking about me too. My
mother loves me dearly as I love her. She would do anything for me. But she's
in her seventies and she just can't do everything I need.

So do I deserve a bullet in the brain?

The hell Whittington described is a hell of our own creation. I live in my
own condo and a state program pays for people to assist me at home under my
direction. My situation is light years away from hopeless. Hope comes in many
forms. For me it comes in the form of those who come assist me. Everyone
deserves these options that bring hope, whether it's pain management or
technology that facilitates communication or whatever.

But it makes me wonder how we ever reached the level of enlightenment
necessary to create such programs when we are still capable of treating
people like the Scott brothers with such profound contempt. When they need
help, we shrug and say it's a family responsibility. When it's too much for
the family, we offer no alternatives but surrender to a nursing home or
death. No wonder they perceive themselves as hopeless.

And then we mock their memories by dismissing their deaths with the
disdainful oxy-moron of mercy killing. We say killing a human being is murder
but killing them is something less.

How demoralizing it is to be reminded just how unwelcome people with
disabilities still are in our culture. We should use the death of the Scott
brothers to dedicate ourselves to creating the kind of supportive
society where no one is ever made to feel like a burden.

From:  The Pro-Life Infonet <infonet@prolifeinfo.org>
Reply-To:  Steven Ertelt <infonet@prolifeinfo.org>
Subject:  There's No Such Thing as a Mercy Killing
Source:   Chicago Sun Times; July 21, 2002

*       *       *       *       *
French Debate Killing Disabled People
Monday, Dec. 17, 2001

Pro-abortion forces scoff at pro-life Americans who warn of the devaluation of human life, but what's
happening in France is enough to frighten anyone.

Willemijn Forest, who lives in Marseilles, told the Christian Science Monitor how the first thing doctors
asked after she bore a son with Down syndrome was whether she wanted to keep him.

"After the delivery, they took him away immediately, assuming I did not want to see him anymore. I said,
'Of course I want to keep him.' I was so appalled by their attitude."

France's highest court recently ruled that children with Down syndrome have a legal "right" never to have
been born and may sue doctors who allowed them to be born - i.e., who didn't kill them. "For parents
such as Mrs. Forest, the ruling demonstrates a view — which she says is widespread in French society —
that a disabled life is not worth living," says the Monitor.

Execute the Innocent and Defenseless

France and other European countries are anti-choice on U.S. executions of ruthless murderers, but
strangely enough they have little problem with executing the innocent.

The French court ruled Nov. 28 that a doctor failed to warn a mother that prenatal scans of her baby,
Lionel, had symptoms of Down syndrome. Had she known she would have had him killed before birth,
so now the doctor is 100 percent liable for the cost of raising the child.

Parents of mentally disabled children who gathered outside the courthouse to hear the verdict expressed
outrage at the judges' ruling.

"Certain judges still believe that it is better to be dead than to be handicapped," said Dr. Xavier Mirabel,
spokesman for Collective Against Handiphobia, a group that fights for rights for handicapped people in
that allegedly Catholic country.

"Although most in France agree that the parents should receive financial aid for Lionel's specialized care,
many are offended by the nature of the mother's grievance: That her son had been allowed to be born,"
says the Monitor's article, reprinted in today's Washington Times.

It always starts with the unborn, then the physically imperfect, then the newborn, then the elderly, then ...

Oh brave new world, that has such people in it.

*       *       *       *       *
Can Hospitals Have the Right to Pull Your Plug?
by Wesley Smith

Imagine visiting your 85-year-old mother in the hospital after she has a
debilitating stroke. You find out that, in order to survive, she requires
a feeding tube and antibiotics to fight an infection. She once told you
that no matter what happenED, she wants to live.

But the doctor refuses further life-sustaining treatment. When you ask
why, you are told, in effect, "The time has come for your mother to die.
All we will provide is comfort care."

Sound far-fetched? It's not. It's already happening.

Just as doctors once hooked people up to machines against their will, now
many bioethicists advocate that doctors be permitted to refuse
life-sustaining treatment that a patient wants but that they deem "futile"
or "inappropriate."

Alarmingly, hospitals in California and throughout the country have begun
to implement these "futile-care" policies that state, in effect: "We
reserve the right to refuse service."

Medical and bioethics journals for several years kept up a drumbeat
advocating the implementation of medical futility policies that hospitals
-- for obvious reasons -- don't publicize. The mainstream news media have
generally ignored the threat.

As a consequence, members of the public and their elected representatives
remain in the dark as "futilitarians" become empowered to hand down
unilateral death sentences.

Indeed, futile-care policies are implemented so quietly that no one knows
their extent. No one has made a systematic study of how many patients'
lives have been lost or whether futile-care decisions were reached
according to hospital policies or the law.

The idea behind futile care goes like this: The patient wants life-
sustaining treatment; the physician does not believe the quality of the
patient's life justifies the costs to the health institution or the
physical and emotional burdens of care;  therefore, the doctor is entitled
to refuse further treatment (other than comfort care) as "futile"  or
"inappropriate."

Treatments withheld under this policy might include antibiotics to treat
infection, medicines for fever reduction, tube feeding and hydration,
kidney dialysis or ventilator support.

Of course, physicians have never been -- nor should they be -- required to
provide medical interventions that provide no medical benefit.

For example, if a patient demands chemotherapy to treat an ulcer, the
physician should refuse. Such a "treatment" would have no medical benefit.

But this kind of "physiological futility," as it is sometimes called, is
not what modern futile-care theory is all about. Treatments are not
refused because they don't provide any medical benefit, as in the case of
chemotherapy to treat an ulcer.  Rather, they are refused because they
actually sustain life -- such as a feeding tube does for a persistently
unconscious patient.

It isn't the treatment that is deemed futile but, in effect, the patient.

Early attempts to impose futile care upon unwilling patients and families
were often ad hoc. For example, a few years ago I received an urgent phone
call from a distraught woman who told me that her 92-year-old mother's
doctor was refusing to give the woman antibiotics for an infection.

When I asked why, she said, "He told me my mother was going to die of an
infection sooner or later, so it might as well be this one."

I advised the woman to get an attorney and threaten suit. That apparently
did the trick. She later called to tell me her mother was being treated
and was well on the way to recovery.

In 1994, the parents of a premature infant sued to prevent the imposition
of futile care upon their son, "Baby Ryan" Nguyen, after doctors told them
they were ending his kidney dialysis.

Ryan would have died, but the Nguyens' attorney obtained a temporary court
order forcing doctors to provide continued life-sustaining care pending a
full trial.

The doctors and hospital did not take the Nguyens' defiance lying down.
They filed an affidavit requesting the right to refuse to provide
treatment, claiming that Ryan's condition was "universally fatal" and that
continuing life-sustaining treatment was a violation of their ethics and
autonomy.

Astonishingly, a hospital administrator even went so far as to report the
Nguyen family to Child Protective Services for "physical abuse and
physical neglect" of Ryan based on the parents' success in obtaining the
injunction to keep their child from death.

The case could have had a major legal impact on the entire futile care
debate. But the trial judge never decided who had the ultimate right to
determine Ryan's fate. The case ended when Ryan was transferred to a
Portland hospital, where a different physician successfully weaned him off
dialysis. Ryan lived four years, a happy if sickly child who gave
high-fives and was the delight of his parents' hearts.

Cases like Baby Ryan's led futilitarians to pursue a more sophisticated
approach to securing their agenda. Rather than have doctors act on their
own accord or file lawsuits seeking permission to refuse wanted care,
which had been attempted on several occasions with mixed results, many
futilitarians began to argue that hospitals adopt written futile-care
policies establishing formal procedures by which wanted life-sustaining
treatment could be refused.

Although given little attention in the news media, these policies have
been extensively described in medical and bioethical publications, such as
the Journal of the American Medical Association, the New England Journal
of Medicine and Health Progress.

Most policies set up internal hospital procedures that work like this:

-- If a patient wants life-sustaining treatment that the physician wishes
to refuse, social workers, chaplains and hospital staff attempt to mediate
the dispute.

-- If the patient and physician cannot resolve their differences
informally,

the matter is referred to the hospital ethics committee for adjudication.

-- If the ethics committee determines that the treatment is inappropriate,
a decision based on the institution's own futile-care standards, life-
sustaining treatments may be terminated even if the patient or family find
another doctor willing to provide the desired care at that hospital.

-- At that point, the patient or family have three options. Acquiesce,
which means the patient probably dies. Find another hospital -- not likely
in our managed-care environment, since life-sustaining treatment treatment
to continue, as did Baby Ryan's parents.

Futile-care protocols are designed to thwart legal action by patients or
their families. The strategy is to stack the deck by convincing judges
that they, mere lawyers, are ill-equipped to gainsay what doctors and
bioethicists have decided is best.

In the Cambridge Quarterly of Health Care Ethics, authors urging
implementation of futility policies wrote last year: "Hospitals are likely
to find the legal system willing (and even eager) to defer to well-defined
and procedurally scrupulous processes for internal resolution of futility
disputes. "

Considering that California legislators recently enacted a statute that
appears to authorize futile-care impositions upon the sickest patients,
that may be a winning strategy. Section 4735 of the California Probate
Code states that a doctor or hospital "may decline to comply with an
individual health care instruction" that runs contrary to "generally
accepted health care standards." This means that once futile care becomes
mainstream, the law will permit doctors to refuse wanted treatment that
runs contrary to their values -- even if such care is necessary to keep
the patient alive.

This little-noticed law raises an urgent question: How many California
hospitals have already promulgated futile-care policies? Unfortunately, no
one knows. But there is little doubt that the number is growing fast.

Authors of the Cambridge Quarterly article surveyed 26 California
hospitals,

including UCSF, Kaiser Permanente, Stanford, UCLA and Cedars-Sinai.
Without identifying the hospitals, they reported 24 had protocols in place
that "defined nonobligatory treatment" in terms that were not "physiology
based" -- in other words, a treatment that has no medical benefit.

Of these, "nine policies assigned the final decision-making authority to
the responsible physician."

Other policies gave the power to hospital committees, the chief of staff
or the hospital administration. Tellingly, only seven protocols permitted
the patient or patient representative to have the final say.

As if this weren't enough cause for alarm, Sen. Arlen Specter, R-Pa., has
introduced federal legislation to let doctors deny life-sustaining
treatment against the will of the patient or the patient's family.

The Health Care Assurance Act (S24) is a 171-page bill with noble
ambitions to expand health coverage for children and disabled people.
Buried in the bill's bowels is a provision that permits hospitals to
withhold care that is determined to be "either futile or otherwise not
medically indicated."

The bill would be a disaster for the most vulnerable, disabled and
defenseless among us -- patients who are too often dehumanized and
callously viewed as parasites on limited health care resources.

Then there is the very real potential that bigoted doctors would apply
futile-care policiesin a discriminatory fashion. Indeed, a 1996 study
published by the Mayo Clinic found that "CPR was more likely to be
considered futile if the patient was not white."

Implementing futile care to control health care costs doesn't add up.
Since only about 10 percent of the nation's entire health care budget goes
to end-of- life care, little would actually be saved.

But cost control isn't the ultimate point for futilitarians.

As many of them see it, if the nation were to swallow futile care theory,
it would establish the principle that health care can be explicitly
"rationed" -- a euphemism for discrimination against people who are
elderly, disabled, chronically ill, dying or otherwise "expensive to care
for."

Seen in this light, medical futility is the foot in the door that would
begin the step-by-step descent from a health care system based on
Hippocratic principles -- "First, do no harm" -- to a system in which
access to medical care is restricted to some but open to others.

Futile care is not the finishing line of this important ethical and legal
struggle, but merely the starting gate of a far longer race.

From:  The Pro-Life Infonet <infonet@prolifeinfo.org>
Reply-To:  Steven Ertelt <infonet@prolifeinfo.org>
Subject:  Can Hospitals Have the Right to Pull Your Plug?
Source:   San Francisco Chronicle; December 2, 2001

*       *       *       *       *
If Disabled Means Expendable We're in Trouble
by Debra J. Saunders

If Robert Wendland, 49, had been a convicted killer on death row, there
would have been legions of righteous do-gooders demanding that he not be
executed because he was mentally retarded. Instead, he was in Lodi
Memorial Hospital, brain-damaged and half-paralyzed by a 1993 car
accident. Thus, when his wife Rose sought to cut off his food and fluids
to allow him to die of thirst, her lawyer argued that death would be in
his "best interests" because: "Robert is a man with no life that is
meaningful to him.''

Wendland died of pneumonia last week as the California Supreme Court was
about to rule on legal attempts by his mother Florence and sister Rebekah
Vinson to keep Wendland alive.

Now the court can and must issue a ruling that makes it clear that the
state cannot allow relatives to euthanize the severely brain-damaged, or
as the pro-dehydration folks put it, those in a "minimally conscious
state." That term, which they applied to Wendland, glosses over the fact
that, even if he could not walk or talk, he could toss a ball, maneuver
his wheelchair, and according to a sworn affidavit, he would kiss his
mother's hand and present his hand for his mother to kiss.

Courts have been correct in upholding the rights of patients to refuse
unwanted surgery or to be hooked up to life-extending machines. Wendland,
however, could not consent to withholding treatment -- if you call
providing food and water treatment. Wendland left no written directive
asking that sustenance be withheld in the event of a severe accident.
(Good for him: Many people think they would not want to live if disabled
-- until they are disabled.)

Here's the real issue before the Big Bench: Should able-bodied
Californians let their fear and revulsion at the thought of being disabled
to lead to policies that allow families to kill disabled people who are
not competent to make medical decisions?

If the answer is yes, Californians will follow in the footsteps of
euthanizing Nazis: Killing retarded and brain-damaged people -- because
it's best for them.

Or as Rose Wendland's attorney suggested to the court -- and he is hardly
the first to do so -- withholding food and water would allow Wendland to
maintain his "dignity."

Diane Coleman, president of the disability-advocacy group Not Yet Dead,
finds the "dignity" argument "so insulting to us as a minority group. To
say that someone needs to be able to walk, talk and go to the bathroom by
themselves to have dignity -- that's ridiculous. And those ideas don't
come from within a (disabled) person, they come from people outside
telling them that they don't have dignity."

I should advise readers that my husband, Wesley J. Smith, wrote a friend
of the court brief pro bono for the Coalition of Concerned Medical
Professionals that took the side of Wendland's mother and sister.

I have watched as others have impugned the motives of those individuals
who dedicated countless hours to keep a helpless, profoundly brain-damaged
man alive. The pro-death side speaks as if there is something noble and
caring about trying to withhold water from a disabled man, and something
twisted and busybodyish in trying to save him.

If the dehydration forces prevail, it will be open season on the
cognitively disabled. But don't compare any beneficent dehydrations to
what the Nazis did; the Nazis weren't as caring as modern Californians.

From:  The Pro-Life Infonet <infonet@prolifeinfo.org>
Reply-To:  Steven Ertelt <infonet@prolifeinfo.org>
Subject:   If Disabled Means Expendable We're in Trouble
Source:   San Francisco Chronicle; July 24, 2001

*       *       *       *       *
When is Your Life No Longer Worth Living?
By Wesley J. Smith

When John Campbell's teenage son Christopher became comatose after a car
accident in 1994, the last problem Campbell expected was obtaining proper
medical treatment for his son. Campbell, a corporate executive, had
excellent health insurance and was convinced Christopher would receive the
best of care. But then something awful happened. One month after the
accident, Christopher developed a burning fever. When his temperature
reached 105 -- and rising -- Campbell asked the attending nurses why his
son was not being treated for the condition that now threatened his life.
He soon found out: Christopher's doctor was out of town and the on-call
physician had refused to order care. The nurses told Campbell they were
helpless to act on their own.

Campbell demanded to speak with the doctor. It took hours before the
nurses were able to reach him on the phone. By then Christopher's fever
had worsened to 107 degrees. "He was literally burning up," Campbell
recalls. "I knew that if something was not done, he would die."

Campbell demanded treatment to reduce his son's fever. At first, the
doctor refused. "He actually laughed," Campbell recalls. But the
distraught father wouldn't give up: "I raised holy hell. I used every
ounce of persuasion I had in me." Finally, reluctantly, the doctor ordered
the nurses to provide fever-reducing medicine, and the fever subsided.

Christopher was completely unresponsive for more than four months after
the fever incident. Then, against medical expectations, he awakened.
Today, after years of arduous rehabilitation, he lives with his parents, a
disabled young man who counsels troubled teenagers and who, with his
father's help, created a foundation that feeds 30 hungry African children
breakfast 365 days a year. But had Campbell not successfully pressured the
doctor into saving Christopher's life, none of that would have happened.
Christopher Campbell would be a cherished memory instead of a living son.

The physician's refusal to provide Christopher desired life-sustaining
treatment was an early application of a relatively new bioethical theory
that has since swept the Western medical world. "Futile care theory" holds
that when a physician believes the quality of a patient's life is too low
to justify life-sustaining treatment, the doctor is entitled to refuse
care as "inappropriate" -- even if the treatment is wanted. It is the
equivalent of a hospital putting a sign over its entrance stating, "We
reserve the right to refuse service."

Of course, doctors should not be required to provide physiologically
futile treatment. For example, if an ulcer patient demands chemotherapy,
doctors should refuse, since the desired "treatment" would not improve the
ulcer at all. But "physiological futility" of this sort is not the essence
of contemporary futile care theory. Rather, in medical futility
bioethicists and doctors unilaterally determine when the quality of a
human life, or the cost of sustaining it, makes it not worth living.

Proponents of futile care theory often cite tube feeding for patients in a
persistent vegetative state as an example of "futile" or "inappropriate"
treatment. Let's analyze this. What is the medical purpose of "artificial
nutrition"? It keeps the body functioning. Why do many futilitarians (as
they are sometimes called) wish to authorize doctors to refuse such
treatment? Not because it doesn't work -- as in the example of the demand
for chemotherapy to treat an ulcer -- but because it does. Thus in futile
care theory the treatment itself isn't denigrated as futile -- the patient
is.

One way patients or families currently thwart futile care impositions is
by threatening to sue. To counter this threat, futilitarians are moving on
two fronts to all but guarantee that courts will ultimately acquiesce to
futile care theory. First, in hospitals nationwide they are quietly
promulgating formal, written futile care protocols that establish
procedures under which wanted treatment can be refused. Second, they are
beginning to place language in federal and state legislation that would
stamp the government's imprimatur upon the core principles of futile care
theory.

For obvious reasons, hospitals don't hold press conferences to announce
the institution of futile care protocols. Thus no one actually knows how
many institutions across the nation have decided to impose futile care
theory on unsuspecting patients, but there is little doubt that many have.
In 1996, the Journal of the American Medical Association reported that
several Houston hospitals had cooperatively created a medical futility
policy designed to establish "professional integrity and institutional
integrity" as a counterbalance to "patient autonomy." Ethics committees
were granted the power to decide whether life-sustaining treatment should
be provided as requested or withdrawn over patient/family objection. Once
the ethics committee rules, the matter is settled, and all further
"inappropriate" care may be terminated unilaterally. The Mercy Health
System, a group of Philadelphia-area Catholic hospitals, instituted a
similar futility program last year, described in "Time for a Formalized
Medical Futility Policy," published in the July/August 2000 Health
Progress. And in an article on medical futility in the Fall 2000 Cambridge
Quarterly of Health Care Ethics, the authors reported that 24 out of 26
California hospitals they surveyed "defined nonobligatory treatment" in
terms that were not "physiology based."

One of the stated purposes behind these hospital protocols is to thwart
patients' ability to obtain a judicial order requiring the continuation of
life-sustaining care. As the Cambridge Quarterly authors put it,
"Hospitals are likely to find the legal system willing (and even eager) to
defer to well-defined and procedurally scrupulous processes for internal
resolution of futility disputes." In other words, the strategy is to
convince judges that, as mere lawyers, they are ill-equipped to gainsay
what doctors and bioethicists have already decided is best.

As if that weren't enough cause for alarm, federal and state legislation
is now being introduced that would explicitly empower doctors to deny
life-sustaining treatment against the will of patients or their families.
The most blatant example is found in Senator Arlen Specter's 171-page
"Health Care Assurance Act," which seeks to expand health coverage for
children and disabled people, among many other provisions. Buried deep in
the bill is Title VI, which authorizes patients to consent or refuse
medical treatment. That's fine. But the kicker comes in subsection B(ii),
which is steeped in the lexicon of futile care theory:

Treatment which is not medically indicated. -- Nothing in this subsection
shall be construed to require that any individual be offered, or to state
that any individual may demand, medical treatment which the health care
provider does not have available, or which is, under prevailing medical
standards, either futile or otherwise not medically indicated. [Emphasis
added.]

As currently written, the bill would be a disaster for the most vulnerable
and defenseless among us: patients who are dehumanized and viewed as
parasitic drains on limited health care resources. Indeed, imagine the
different fate that would have befallen Christopher Campbell had the
doctor who refused to treat his fever been empowered by federal law to
tell his father that sustaining the life of a persistently comatose
patient was "not medically indicated under prevailing medical standards."

The New York state legislature also has two bills pending that would
implement futile care theory. The "Health Care Decisions Act for Persons
with Mental Retardation" would permit physicians and hospitals to refuse
treatment requests by the guardians of mentally retarded patients, if the
doctor would not have honored an identical request from a competent
patient "because the decision is contrary to a formally adopted written
policy of the hospital expressly based on religious beliefs or sincerely
held moral convictions central to the hospital's operating principles." A
formally adopted futile care protocol would clearly fall into this
category.

A similar policy in AB 5523, legislation establishing the rights of
surrogate health care decision-makers, would permit a hospital ethics
committee to "approve or disapprove" a request to render wanted
life-sustaining treatment. Adding to the potential for abuse, the workings
of the ethics committee would not be "subject to disclosure or
inspection," nor would any committee member be allowed to "testify as to
the proceedings or records of an ethics review committee, nor shall such
proceedings and records otherwise be admissible as evidence in any action
or proceeding of any kind in any court . . . " In short, ethics committee
adjudications could become the moral equivalent of Star Chamber
proceedings, with members empowered literally to decide issues of life and
death in an atmosphere of secrecy and unaccountability.

Under both pieces of New York legislation, caregivers who disagreed with
futile care impositions would have the option of changing hospitals. But
in these days of managed care, when the sickest patients generally cost
hospitals money rather than bring profits, this option is more mirage than
reality.

Should a hospital transfer prove unavailable, the legislation requires the
hospital to "seek judicial relief or honor the [patient/family's]
decision." But families would face a badly stacked deck when sued: State
law and the written hospital protocol would already have formally
legitimized futile care theory, making a hospital victory far more likely.
Moreover, hospitals have deep pockets from which to pay $500-per-hour
lawyers, the substantial fees of doctors, and bioethicists who would
testify that refusing wanted care is both ethical and standard medical
practice. Patients or caregivers, on the other hand, would have to pay
lawyers and experts out of their own pockets, potentially leading to
financial ruin.

In California, futile care theory has already been legalized. A review of
language recently put into the Probate Code finds that a "health care
provider or health care institution may decline to comply with an
individual health care instruction or health care decision that requires
medically ineffective health care [physiological futility] or health care
contrary to generally accepted health care standards applicable to the
health care provider or institution." [Emphasis added.] In other words, if
an institution defines certain types of wanted life-sustaining treatment
as contrary to their internal standards, doctors can refuse to render the
care. At that point, the doctor must cooperate with the transfer of the
patient to another institution and continue to provide the care until
transfer "or until it appears that a transfer cannot be accomplished."
Presumably, if no other hospital agrees to take the patient, the
non-treatment decision can be imposed unilaterally.

Why is this happening? The usual bioethical rationale for imposing medical
futility on defenseless patients is "distributive justice" -- i.e., a
Montana hospital should deny Grandma Jones wanted life-sustaining
antibiotics or respirator care so society can provide health benefits to
uninsured Little Suzy in Appalachia. Thus it is hardly surprising that
Senator Specter included an explicit futile care provision in legislation
designed to expand access to health care.

Yet ironically, imposing futile care theory on patients will not save much
money, since end-of-life care constitutes only about 10 percent of total
health care expenditures. Futilitarians know this, of course -- which is
why some already advocate restricting access to "marginally beneficial
care" once the futile care fight is won. And what is marginally beneficial
care? A few years ago Dr. Donald J. Murphy, a leader of the futile care
movement, gave me the example of an 80-year-old woman requesting a
mammogram.

Thus medical futility is not an end but rather the beginning of a
thousand-mile journey leading directly to society-wide health care
rationing -- a euphemistic term for medical discrimination, based on
subjective quality-of-life criteria, against patients who are elderly,
expensive to care for, disabled, or dying. Eventually, this will include
all of us. We ignore the threat of futile care theory at our own peril.

[Pro-Life Infonet Note:  Attorney and consumer advocate Wesley J. Smith is
the author of "Culture of Death: The Assault on Medical Ethics in
America." You can purchase his books online in the books section of
http://www.roevwade.org]
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We Ignore the Dutch Legalization of Euthanasia at Our Own Peril

By Wesley J. Smith

[Moderator's Note:  Wesley Smith is an attorney for the International
Anti-Euthanasia Task Force. His latest book, Culture of Death: The Assault
on Medical Ethics in America is forthcoming from Encounter Books.]
  
The Netherlands is about to become the first nation in modern times to
formally legalize euthanasia. The mainstream media stories about
legalization frequently assert with a straight face that euthanasia will
be governed by strict guidelines to prevent abuse. Well we've been hearing
that little ditty for decades about Dutch euthanasia, and as Ira Gershwin
once put it, "It ain't necessarily so." Indeed, the vaunted guidelines do
not even rise to the level of paper tigers.

The newly enacted killing regulations are virtually identical to those
that have governed Dutch euthanasia for many years under which euthanasia
remained technically illegal but was not prosecuted so long as doctors
followed the guidelines. (The only substantial difference between the
former decriminalized regime and legalized euthanasia is that doctors will
no longer have to notify coroners after they kill a patient.) Not only
have the guidelines failed to protect vulnerable and devalued patients but
they have been violated so often that they might as well not exist at all.

Here are the guidelines followed by a brief recitation describing how each
has been violated in actual practice over the last 27 years:

When ending a life a physician must be convinced that the patient's
request was voluntary, well-considered, and lasting. Study after study of
Dutch euthanasia practice have shown that Dutch doctors routinely kill
patients who have not asked to be poisoned. (The favored method of killing
in the Netherlands is an overdose of barbiturates followed by a lethal
dose of curare.) In the Netherlands this practice is known as "termination
without request or consent," and is not even formally considered
euthanasia in the statistics compiled by the government.

The evidence of decades demonstrates that such involuntary euthanasia is
rampant. Indeed, in its 1997 ruling refusing to create a constitutional
right to assisted suicide (Washington v. Glucksberg) the United States
Supreme Court quoted a 1991 Dutch government study finding that in 1990
doctors committed "more than 1000 cases of euthanasia without an explicit
request" and "an additional 4,941 cases where physicians administered
lethal morphine overdoses without the patients' explicit consent." That
means in 1990, nearly 6,000 of approximately 130,000 people who died in
the Netherlands that year were involuntarily euthanized --approximately 4
percent of all Dutch deaths. So much for "choice."

The physician must be convinced the patient was facing unremitting and
unbearable suffering. Notice that this guideline does not require that the
patient be dying or, for that matter, even be actually ill. Indeed, there
have been several documented cases of euthanasia based on depression or
suicidal ideation. For example, a Dutch documentary reported on the
euthanasia of a young woman in remission from anorexia. Worried that her
eating disorder would return, she asked her doctor to kill her. He did and
the authorities refused to prosecute.

The most infamous case of this sort involved a physically healthy woman
who had become obsessed about being buried between her two dead children.
She bought a cemetery plot, had her children buried one on each side of
her planned grave, and then asked a psychiatrist named Boutdewijn Chabot
to assist her suicide. He met with her four times over approximately five
weeks and never attempted treatment. He then assisted her suicide. The
Dutch Supreme Court refused to punish him, ruling that suffering is
suffering and it does not matter whether it is physical or emotional, to
justify euthanasia.

Another documented euthanasia that violated this and other guidelines was
depicted in a Dutch documentary played in this country in the PBS program
the Health Quarterly, in 1993. Henk Dykma had asymptomatic HIV infection.
Fearing future afflictions that might befall him, Henk asked his doctor to
kill him. The film shows the doctor telling Henk that he might live for
years at his current state of seemingly healthful living. When Henk still
proclaims a desire to die, the doctor speaks with a colleague but never
consults a psychiatrist or psychologist. He then helps kill Henk on July
28, a date, we are told, which had symbolic importance for the patient.

This killing, like those of the anorexic young woman and the bereaved
mother, was clearly not a matter of last resort, as the guidelines claim
to require. Henk and his doctor did not explore all other options
available to him before ending his life. Indeed, psychiatric treatment,
which might have alleviated Henk's obvious anxiety about being
HIV-positive, was never even discussed or attempted. Nor was Henk advised
of the steps that could be taken to alleviate his suffering should he fall
ill. The doctor didn't even wait until Henk had actual symptoms of AIDS.
There is a word for that level of care --abandonment --and it demonstrates
the utter hollowness of the Dutch protective guidelines.

The physician must have informed the patient about their situation and
prospects. This guideline presumes that the physicians involved will have
sufficient expertise to adequately inform the patient about their
condition and options for treatment or palliation. But the Dutch medical
system is unlike ours. It is primarily made up of general practitioners,
rather than specialists, who may not have the training, expertise, or
desire to know the many treatment alternatives that may be available.
Moreover, there are few hospices in the Netherlands, meaning that the many
compassionate and dignified methods of alleviating suffering in the dying
may never be discussed with patients who ask to be killed.

A good example of this phenomenon is illustrated in the memoir Dancing
with Mr. D, written by a Dutch nursing-home doctor named Bert Keizer.
Keizer writes about a patient who had been tentatively diagnosed with lung
cancer. A relative tells Keizer that the man wants to be given a lethal
injection, a request later confirmed by the patient. Keizer quickly agrees
to perform the killing. Demonstrating the utter uselessness of "protective
guidelines," Keizer never tells his patient about treatment options that
may be available or how the pain and other symptoms of cancer can be
palliated effectively. He never checks to see if the man has been
pressured into wanting a hastened death or is depressed. Indeed, Keizer
doesn't even take the time to confirm the diagnosis with certainty or to
prepare a prognosis about the expected course of the disease. When a
colleague asks, why rush, and points out that the man isn't suffering
terribly, Keizer snaps:


Is it for us to answer this question? All I know is that he wants to die
more or less upright and that he doesn't want to crawl to his grave the
way a dog crawls howling to the side walk after he's been hit by a car.  
The next day, he lethally injects his patient, telling his colleagues as
he walks to the man's room to do the deed, "If anyone so much as whispers
cortisone [a palliative agent] or 'uncertain diagnosis,' I'll hit him."

The physician must have reached the firm conclusion with the patient that
there was no other reasonable alternative solution. The cases already
described illustrate the hollowness of this guideline. Another prime
example of its uselessness is the killing by Dr. Henk Prins of a three-day
old infant born with spina bifida and limb anomalies. (Yes, euthanasia has
entered Dutch pediatric wards. A 1997 study in the British medical
journal, The Lancet, revealed that about 8 percent of all infants who die
in the Netherlands are killed by doctors.)

Spina bifida is a condition in which there is an opening at the spine that
may cause disability or death. Prins --a gynecologist, not a pediatrician
or expert in spina bifida --killed the child at the request of her
parents, because, he later testified, the baby screamed in agony when
touched. No wonder the baby was in pain! Prins never closed the wound in
her back. In other words, the doctor killed his patient without first
attempting proper medical treatment. Yet, rather than punishing Prins, the
trial judge praised him for his "integrity and courage," wishing him well
in any further legal proceedings he might face.

The physician must have consulted at least one independent physician, who
has examined the patient and formed a judgment about the above points. The
idea of independent physicians acting as a check and balance to prevent
abuses sounds good. But in practice, it offers little actual protection.
Proof of this is found in a Dutch euthanasia documentary --played in the
USA on the ABC television program Prime Time Live. It is the euthanasia of
Cees van Wendel, a patient disabled by ALS (Lou Gehrig's disease). As
depicted in the film, the driving force behind the euthanasia appears to
be the man's wife, Antoinette, who does all of the talking for her husband
(who is able to communicate). This also proves true during the second
opinion consultation, which is cursory and perfunctory. Suicide expert,
the New York psychiatrist Dr. Herbert Hendin, in his book about Dutch
euthanasia Seduced by Death, describes the "consultation," such as it was:

The consultant, who practices on the same block as the doctor, also makes
no attempt to communicate with Cees alone, and he too permits the wife to
answer all the questions put to Cees. When the consultant asks the pro
forma question if Cees is sure he wants to go ahead, Antoinette answers
for him. The consultant seems uncomfortable, asks a few more questions,
and leaves. The consultation takes practically no time at all. Dutch
euthanasia is a human-rights disaster. Not only does the practice devalue
the lives of the most defenseless people, but once killing became an
acceptable answer to one problem, it soon became a solution to one
hundred. Indeed, in their nearly 30 years of euthanasia practice, Dutch
doctors have gone from killing terminally ill patients who ask for it, to
chronically ill patients who ask for it, to disabled patients who ask for
it, to depressed patients who ask for it, to babies who cannot by
definition ask for it, to thousands of patients without request or
consent. Now, the last slight remaining impediment to killing by doctors
--its technically illegal status --has been dismantled. And as an
additional plum to depravity, teenagers beginning at the age of 16 will be
able to receive euthanasia without parental consent.

The theologian and philosopher, Richard John Neuhaus, was once asked "Do
you believe there is a euthanasia "slippery slope?" His answer hit the
mark: "Yes, like I believe that there is a Hudson River." We ignore the
lessons of the Netherlands at our own peril.

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