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Bioethics & the Law A (Very) Brief Introduction Clayton L. Thomason, J.D., M.Div. Asst. Professor, Dept. of Family Practice & Center for Ethics College.

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Presentation on theme: "Bioethics & the Law A (Very) Brief Introduction Clayton L. Thomason, J.D., M.Div. Asst. Professor, Dept. of Family Practice & Center for Ethics College."— Presentation transcript:

1 Bioethics & the Law A (Very) Brief Introduction Clayton L. Thomason, J.D., M.Div. Asst. Professor, Dept. of Family Practice & Center for Ethics College of Human Medicine Adjunct Professor, MSU College of Law Michigan State University

2 American Legal System Statutory Law Statutory Law Promulgated by legislatures Promulgated by legislatures Offers positivistic rules Offers positivistic rules Common Law (Case Law) Common Law (Case Law) Judges seek to resolve conflicts in specific cases Judges seek to resolve conflicts in specific cases Through adversarial system Through adversarial system Principles and doctrines develop over time Principles and doctrines develop over time Administrative Law Administrative Law Criminal/Civil Law Criminal/Civil Law State/Federal Law State/Federal Law Constitutional Law Constitutional Law

3 Similarities between Productive Moral/Legal Conversation... Includes people of diverse backgrounds (personal and professional) Includes people of diverse backgrounds (personal and professional) Legal Process of Discovery, expert witnesses, evidence Legal Process of Discovery, expert witnesses, evidence Lays as many ethical considerations as possible on the table Lays as many ethical considerations as possible on the table Litigation = Adversarial System seeks truth by hearing disparate perspectives Litigation = Adversarial System seeks truth by hearing disparate perspectives Cf. Brody H, Ethics, Virtue & Professionalism: An Overview, Introductory Lecture, HM-546, 2003

4 Similarities between Productive Moral/Legal Conversation... Ethical considerations are critically weighed for pertinence to case at hand Ethical considerations are critically weighed for pertinence to case at hand Legal principles applied to facts of case Legal principles applied to facts of case Often reason by analogy: have we been successful with similar cases in past? Often reason by analogy: have we been successful with similar cases in past? Legal Precedent = reasoning by analogy Legal Precedent = reasoning by analogy Appeals to rules and principles (e.g., patient autonomy) are tools of inquiry, not rigid formulas Appeals to rules and principles (e.g., patient autonomy) are tools of inquiry, not rigid formulas But precedent not blindly followed, can change But precedent not blindly followed, can change

5 Similarities between Productive Moral/Legal Conversation Basic moral value, respect for others modeled in process as well as in outcome Basic moral value, respect for others modeled in process as well as in outcome Ideas others put on table are critically challenged and questioned Ideas others put on table are critically challenged and questioned Questioning is done without suggesting disrespect for the person who holds differing moral views Questioning is done without suggesting disrespect for the person who holds differing moral views The person who disagrees with you is your best resource in discovering moral truth The person who disagrees with you is your best resource in discovering moral truth = Basis of Adversarial System, to seek truth = Basis of Adversarial System, to seek truth

6 Dr. Brodys Two Questions: What ought to be done in this situation, all things considered? What ought to be done in this situation, all things considered? Snapshot ethics Snapshot ethics Main focus of HM 546 ethics module Main focus of HM 546 ethics module Focus of Legal Standards, Rules, Case Law Focus of Legal Standards, Rules, Case Law How ought I live a life of moral excellence in my chosen profession? How ought I live a life of moral excellence in my chosen profession? Video ethics Video ethics Main focus of professionalism curriculum Main focus of professionalism curriculum Law does not generally seek to address – leaves to profession Law does not generally seek to address – leaves to profession

7 Similarities Between Law & Bioethics Both provide guidance on what physicians may and may not do Both provide guidance on what physicians may and may not do The law may reflect an ethical consensus in society The law may reflect an ethical consensus in society Court opinions offer reasons for decisions, provide analysis of pertinent issues Court opinions offer reasons for decisions, provide analysis of pertinent issues Clinicians, ethics committees should be aware of what law says about issues in clinical ethics Clinicians, ethics committees should be aware of what law says about issues in clinical ethics

8 But... The law cannot offer definitive answers to every ethical dilemma in medicine. The law cannot offer definitive answers to every ethical dilemma in medicine. Knowing what the law is does not save us from doing the hard work of moral reflection & discourse. Knowing what the law is does not save us from doing the hard work of moral reflection & discourse.

9 Law & Ethics Differ Law sets only minimum standards of conduct Law sets only minimum standards of conduct Law explicitly grants physicians discretion in clinical decision making Law explicitly grants physicians discretion in clinical decision making Law may provide no clear action guides in some clinical ethical situations Law may provide no clear action guides in some clinical ethical situations Law and ethics may directly conflict Law and ethics may directly conflict Actions permitted by law may be ethically controversial Actions permitted by law may be ethically controversial While actions prohibited by law may be regarded as ethically defensible by many people While actions prohibited by law may be regarded as ethically defensible by many people Authority of law based on police power of state Authority of law based on police power of state

10 Law in Clinical Ethics Try to resolve ethical conflicts as close to the bedside as possible. Try to resolve ethical conflicts as close to the bedside as possible. Courts are not optimally suited to make medical decisions. Courts are not optimally suited to make medical decisions. Courts are the tribunal of last resort for resolving ethical conflicts. Courts are the tribunal of last resort for resolving ethical conflicts. In clinical ethics, over-reliance on whats legal may undermine careful, complete, and subtle ethical analysis. In clinical ethics, over-reliance on whats legal may undermine careful, complete, and subtle ethical analysis. cf., De Ville K. What does the law say? -- Law, ethics, and medical decision making. West J Med 1994;160:

11 Resolve ethical conflicts... as close to the bedside as possible.

12 An Example: Terri Schiavo 41 y/o woman in Persistent Vegetative State (PVS) since y/o woman in Persistent Vegetative State (PVS) since 1990 When heart stopped temporarily, result of potassium imbalance When heart stopped temporarily, result of potassium imbalance Breathed on own, but could not swallow Breathed on own, but could not swallow Feeding tube needed for nutrition/hydration Feeding tube needed for nutrition/hydration Husband battled her parents over whether she should be allowed to die Husband battled her parents over whether she should be allowed to die As he asserted she would have wanted As he asserted she would have wanted Drs. Testifying on his behalf held out no hope for recovery Drs. Testifying on his behalf held out no hope for recovery Parents maintained that Terri could be helped by therapy Parents maintained that Terri could be helped by therapy

13 Diagnosis of Persistent Vegetative State Vegetative State Vegetative State No cortical brain function, but preserved brainstem function (unlike brain death) No cortical brain function, but preserved brainstem function (unlike brain death) No purposeful activity, response to verbal commands No purposeful activity, response to verbal commands No experience of Pain No experience of Pain Dx by experienced neurologist Dx by experienced neurologist Persistent Vegetative State (PVS) Persistent Vegetative State (PVS) VS lasting > 1 month VS lasting > 1 month Prognosis of recovery of consciousness approaches zero % after 3 months Prognosis of recovery of consciousness approaches zero % after 3 months Mean survival = 2-5 years Mean survival = 2-5 years Approx 10K - 25K adults and 4-10K children in PVS Approx 10K - 25K adults and 4-10K children in PVS See Lo, ch. 20

14 Definition of PVS in Florida Statute Florida Statue : Persistent vegetative state means a permanent and irreversible condition of unconsciousness in which there is: Florida Statue : Persistent vegetative state means a permanent and irreversible condition of unconsciousness in which there is: Florida Statue Florida Statue (a) The absence of voluntary action or cognitive behavior of ANY kind. (a) The absence of voluntary action or cognitive behavior of ANY kind. (b) An inability to communicate or interact purposefully with the environment. (b) An inability to communicate or interact purposefully with the environment.

15 Procedural History Michael petitions guardianship court to authorize withdrawal of life-prolonging procedures. After trial, order so authorized 1998-Michael petitions guardianship court to authorize withdrawal of life-prolonging procedures. After trial, order so authorized clear & convincing evidence of PVS clear & 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 appeals Schindlers filed 4 procedural appeals Trial Ct. order upheld, tube removed Trial Ct. order upheld, tube removed Oct FL Legislature enacts Terris Law Oct FL Legislature enacts Terris Law chapter chapter Gov. Bush signed, then issued executive order replacing tube Gov. Bush signed, then issued executive order replacing tube

16 ... Procedural History... Michael files for declaratory judgment in Circuit Ct, which ruled in his favor Michael files for declaratory judgment in Circuit Ct, which 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 unconstitutional Sept. 23, 2004-FL Supreme Court declares law unconstitutional Violation of separation of powers Violation of separation of powers Affirms trial courts order Affirms trial courts order Oct. 4, Gov. Bush files appeal Oct. 4, Gov. Bush files appeal Jan. 24, U.S. Supreme Ct. refuses to hear Bush appeal > case goes back to Circuit Ct. Jan. 24, U.S. Supreme Ct. refuses to hear Bush appeal > case goes back to Circuit Ct. 2/25/05- Judge Greer orders tube removed on 3/18/05 2/25/05- Judge Greer orders tube removed on 3/18/05

17 ....Procedural History 3/16/05- Fl 2d Appellate Ct. denies stay of order 3/16/05- Fl 2d Appellate Ct. denies stay of order 3/18/05 – Feeding tube removed 3/18/05 – Feeding tube removed 3/19/05- Emergency appeal to US Supreme Ct. – cert. denied. 3/19/05- Emergency appeal to US Supreme Ct. – cert. denied. 3/21/05- Pres. Bush signs federal bill into law after passage by US House/Senate 3/21/05- Pres. Bush signs federal bill into law after passage by US House/Senate Fed. Dist., 11 th Cir, US S. Ct. all reject appeals Fed. Dist., 11 th 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.

18 What lessons can be learned? Hard cases make bad law Hard cases make bad law Examine conflicts between law and clinical ethics Examine conflicts between law and clinical ethics Terri had no advance directive to guide decisions about her care Terri had no advance directive to guide decisions about her care Clinical decisions about care are best made as close to the bedside as possible Clinical decisions about care are best made as close to the bedside as possible Court decisions should be last resort Court decisions should be last resort Legislative resolution? Executive intervention? Legislative resolution? Executive intervention? Families need to have caring conversations about end of life wishes Families need to have caring conversations about end of life wishes

19 Other Significant Cases on Life-Sustaining Interventions (see Lo, ch. 23)... In the Matter of Quinlan, Supreme Court of New Jersey (1976) 70 N.J. 10, 355 A. 2d. 647 In the Matter of Quinlan, Supreme Court of New Jersey (1976) 70 N.J. 10, 355 A. 2d. 647 In the Matter of Quinlan In the Matter of Quinlan 22 y/o woman in PVS; father asked court to allow ventilator to be withdrawn. 22 y/o woman in PVS; father asked court to allow ventilator to be withdrawn. New Jerseys Supreme Court recognizes that a patients constitutional right to privacy includes a right to terminate medical treatment. New Jerseys Supreme Court recognizes that a patients constitutional right to privacy includes a right to terminate medical treatment.

20 ... Other Cases... Cruzan v. Director, MDH, U.S. Supreme Court 497 U.S. 261 (1990) Cruzan v. Director, MDH, U.S. Supreme Court 497 U.S. 261 (1990) Cruzan v. Director, MDH Cruzan v. Director, MDH 33 y/o in PVS, had said she didnt want to live... As a vegetable; parents requested tube feedings removed. 33 y/o in PVS, had said she didnt want to live... As a vegetable; parents requested tube feedings removed. Chief Justice Rehnquist writes for the Supreme Courts majority opinion, holding that the Constitution gives a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition, Chief Justice Rehnquist writes for the Supreme Courts majority opinion, holding that the Constitution gives a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition, but a State may apply a clear and convincing evidence standard [of the patients wishes] in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state. but a State may apply a clear and convincing evidence standard [of the patients wishes] in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state.

21 ... Other Cases... Conservatorship of Wendland, Calif. Supreme Court (Aug. 9, 2001). Conservatorship of Wendland, Calif. Supreme Court (Aug. 9, 2001). Conservatorship of Wendland Conservatorship of Wendland California case holding that, under the States law, a conservator may not withhold artificial nutrition and hydration from a conscious conservatee who is not terminally ill, comatose, or in a persistent vegetative state, and who has not left formal instructions for health care or appointed an agent or surrogate for health care decisions...absent clear and convincing evidence the conservators decision is in accordance with either the conservatees own wishes or best interest. California case holding that, under the States law, a conservator may not withhold artificial nutrition and hydration from a conscious conservatee who is not terminally ill, comatose, or in a persistent vegetative state, and who has not left formal instructions for health care or appointed an agent or surrogate for health care decisions...absent clear and convincing evidence the conservators decision is in accordance with either the conservatees own wishes or best interest.

22 ... Other Cases Brophy v. New England Sinai Hospital, Supreme Judicial Court of Massachusetts (1986) 398 Mass. 417; 497 N.E.2d 626 Brophy v. New England Sinai Hospital, Supreme Judicial Court of Massachusetts (1986) 398 Mass. 417; 497 N.E.2d 626 Brophy v. New England Sinai Hospital Brophy v. New England Sinai Hospital Massachusetts case holding that the States interest in the preservation of life does not overcome [the patients] right to discontinue treatment, and that such a position is not contrary to the States interest in the prevention of suicide. Massachusetts case holding that the States interest in the preservation of life does not overcome [the patients] right to discontinue treatment, and that such a position is not contrary to the States interest in the prevention of suicide.

23 Some Legal Issues in HM Week 1: Introduction to Ethics & Law Week 1: Introduction to Ethics & Law Lo, Chs. 1, 2, also 23 Lo, Chs. 1, 2, also 23 Week 2: Competent Patient decisions Week 2: Competent Patient decisions Legal standards re: best interests, decision-making capacity, refusal of treatment, PAS, active euthanasia Legal standards re: best interests, decision-making capacity, refusal of treatment, PAS, active euthanasia See Lo, ch. 4, 10, 11, 19 See Lo, ch. 4, 10, 11, 19 Week 3: Decisions for Incompetent Patients Week 3: Decisions for Incompetent Patients Legal standards re: brain death, persistent vegetative state, coma, states interest in preserving life, surrogate decision-making,artificial nutrition & hydration, Michigan law Legal standards re: brain death, persistent vegetative state, coma, states interest in preserving life, surrogate decision-making,artificial nutrition & hydration, Michigan law Especially Lo, chs. 8, 9, 12, 13, 20, 21, 23 Especially Lo, chs. 8, 9, 12, 13, 20, 21, 23

24 ... Legal Issues in HM Week 4: Children & Infants Week 4: Children & Infants Legal standards re: non-discrimination against the handicapped; best interest of infants, family, & society; states interest in decision-making Legal standards re: non-discrimination against the handicapped; best interest of infants, family, & society; states interest in decision-making See Lo, ch. 16 See Lo, ch. 16 Week 5: Reproductive Issues Week 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 controversial Actions permitted by law may be ethically controversial Week 6: Flow of Medical Information Week 6: Flow of Medical Information Legal/ethical standards for truth-telling, informed consent, confidentiality Legal/ethical standards for truth-telling, informed consent, confidentiality See Lo, ch. 3, 5, 6, 34, 38 See Lo, ch. 3, 5, 6, 34, 38

25 ... Legal Issues in HM-546 Week 7: Genetics Week 7: Genetics Role of law in regulating genetic technologies? Role of law in regulating genetic technologies? Legal standards re: genetic privacy, procreative liberty, health care justice, obligations of parties Legal standards re: genetic privacy, procreative liberty, health care justice, obligations of parties See Lo, ch. 42 See Lo, ch. 42 Week 8: Research Issues, Justice and Conflicts of Interest Week 8: Research Issues, Justice and Conflicts of Interest Legal standards for protections of human subjects Legal standards for protections of human subjects Legal/ethical definitions of conflict of interest Legal/ethical definitions of conflict of interest See Lo, ch.28, 29, 30, 32, 33 See Lo, ch.28, 29, 30, 32, 33

26 Further Resources Shapiro MH, Spece RG, Dresser R, Clayton EW. Bioethics and Law: Cases, Materials and Problems (2d ed.). St. Paul, MN, West Publ. Co., Shapiro MH, Spece RG, Dresser R, Clayton EW. Bioethics and Law: Cases, Materials and Problems (2d ed.). St. Paul, MN, West Publ. Co., Menikoff J. Law and Bioethics: An Introduction. Washington, DC, Georgetown Univ. Press, Menikoff J. Law and Bioethics: An Introduction. Washington, DC, Georgetown Univ. Press, Orentlicher D. Matters of Life and Death: Making Moral Theory Work in Medical Ethics and the Law. Princeton, NJ, Princeton Univ. Press, Orentlicher D. Matters of Life and Death: Making Moral Theory Work in Medical Ethics and the Law. Princeton, NJ, Princeton Univ. Press, Rich B. Strange Bedfellows: How Medical Jurisprudence has Influenced Medical Ethics and Medical Practice. New York, NY, Kluwer Academic/Plenum Publ., Rich B. Strange Bedfellows: How Medical Jurisprudence has Influenced Medical Ethics and Medical Practice. New York, NY, Kluwer Academic/Plenum Publ., Meisel A. Legal myths about terminating life support. Arch Int Med. 1991;151: Meisel A. Legal myths about terminating life support. Arch Int Med. 1991;151: Meisel A, Kuczewski M. Legal and ethical myths about informed consent. Arch Int Med. 1996;156: Meisel A, Kuczewski M. Legal and ethical myths about informed consent. Arch Int Med. 1996;156: Harrington JA. Art or science? Understanding medicine and the common law. Health L J. 2001;9: Harrington JA. Art or science? Understanding medicine and the common law. Health L J. 2001;9:


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