Abstract
Discussion of death has been transformed from taboo to high fashion. In the past two decades, there has been an avalanche of books, newspaper and magazine articles, movies, and Broadway plays on the subject. And the AIDS epidemic has made the discussion of terminal illness almost commonplace. Almost two million Americans die annually, and an additional million have a terminal diagnosis at any given time. Eighty percent die in hospitals or nursing homes. Thus, millions of people at any time are either dying or caring for dying relatives. Nonetheless, we remain a death-denying culture and continue to act as if immortality is attainable. Dying patients often know better, and even more than death, they fear isolation and pain.
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Notes
Friesen & Kelly, Do Cancer Patients Want to Be Told? 27 Surgery 825 (1950); Samp & Currieri, Questionnaire Survey on Public Cancer Education Obtained from Cancer Patients and Their Families, 10 Cancer 382 (1957); Fitts & Ravdin, What Philadelphia Physicians Tells Patients with Cancer, 153 JAMA 901(1953); Oken, What to Tell Cancer Patients?, JAMA 1120 (1961); and Rennick, What Should Physicians Tell Cancer Patients?, 2 New Med. Materia 51 (1960).
E.g., Novack et al., Changes in Physician Attitudes Toward Telling the Cancer Patient, 2, 41 JAMA 897 (1979). For an excellent discussion of telling the truth to terminally ill patients, see S. Bok Lying (New York: Pantheon, 1978), at 220-41; and see Kushner, “What Can I Tell You About Dying?” Boston Globe Magazine, Aug. 28, 1988, at 28.
See ch. XI, “Privacy and Confidentiality.”
See generally ch. VI, “Informed Consent.”
See generally ch. IX, “Human Experimentation and Research.”
In re Quackenbush, 156 NJ Super. 282 (1978). For an excellent, up-to-date examination of the legal and ethical basis of the right to refuse treatment, see President’s Commission for the Study of Ethical Problems in Medicine, Deciding to Forego Life Sustaining Treatment (Washington, DC: Government Printing Office, 1983).
E.g., Lane v. Candura, 6 Mass. App. 377, 376 N.E.2d 1232 (1978); Bartling v. Superior Ct., 209 Cal. Rptr. 220, 163 Cal. App. 3d 186, (1984). And see cases cited at 318 New Eng. J. Med. 1755 (1988).
See generally Annas & Glantz, The Right of Elderly Patients to Refuse Life-Sustaining Treatment, 64 Milbank Mem. Q. 95 (Supp. 2, 1986), and cases cited therein; and Deciding to Forego, supra note 6.
See generally Annas & Densberger, Competence to Refuse Medical Treatment: Autonomy vs. Paternalism, 15 Toledo L. Rev. 561(1984).
In re Yetter, Northampton Co. Orphans Ct., No. 1973-533 (Pa. 1973) (Williams, J.).
Lane v. Candura, supra note 7.
Id. at 1235-36 See also, Deciding to Forego, supra note 6.
See discussion in ch. VI, “Informed Consent,” at 89-91.
President’s Commission for the Study of Ethical Problems in Medicine and Biomedicai and Behavioral Research, Making Health Care Decisions (Washington, DC: Government Printing Office, 1982).
Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (Mass., 1977).
See supra notes 6 and 8, and Annas, The Insane Root Takes Reason Prisoner, 19 Hastings Center Report 29 (Jan. 1989).
G. J. Annas, L. H. Glantz & B. F. Katz, The Rights of Doctors, Nurses and Allied Health Professionals (Cambridge, Mass.: Ballinger, 1981), at 84.
The position of the American Medical Association, Council on Ethical and Judicial Affairs (Mar. 15, 1986) on “Withholding or Withdrawing Life-Prolonging Medical Treatment” is: The social commitment of the physician is to sustain life and relieve suffering. Where the performance of one duty conflicts with the other, the choice of the patient, or his family or legal representative if the patient is incompetent to act in his own behalf, should prevail. In the absence of the patient’s choice or an authorized proxy, the physician must act in the best interest of the patient. For humane reasons, with informed consent, a physician may do what is medically necessary to alleviate severe pain, or cease or omit treatment to permit a terminally ill patient whose death is imminent to die. However, he should not intentionally cause death. In deciding whether the administration of potentially life-prolonging medical treatment is in the best interest of the patient who is incompetent to act in his own behalf, the physician should determine what the possibility is for extending life under humane and comfortable conditions and what are the prior expressed wishes of the patient and atttudes of the family or those who have responsibility for the custody of the patient. Even if death is not immanent but a patient’s coma is beyond doubt irreversible and there are adequate safeguards to confirm the accuracy of the diagnosis and with the concurrence of those who have responsibility for the care of the patient, it is not unethical to discontinue all means of life-prolonging medical treatment. Life-prolonging medical treatment includes medication and artificially or technologically supplied respiration, nutrition or hydration. In treating a terminally ill or irreversibly comatose patient, the physician should determine whether the benefits of treatment outweigh its burdens. At all times, the dignity of the patient should be maintained. Approximately 80 percent of all physicians favor withdrawing life support systems from hopelessly ill or irreversibly comatose patients if they or their families request it (American Medical News, June 3, 1988, at 9). See also Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying (Bloomington: Indiana U. Press, 1988); and Glantz, Withholding and Withdrawing Treatment: The Role of the Criminal Law, 15 Law, Medicine & Health Care, 231 (1988).
In re Osborne, 294 A.2d 372, 375, n. 5 (D.C. Ct. App. 1972). See also Bartling, supra note 7, and the discussion of forcing treatment on pregnant women in ch. VIII, “Pregnancy and Birth, 126-30.”
In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976).
Saikewicz, supra note 15. For a more detailed discussion of these two cases, see Annas, Reconciling Quinlan and Saikewicz: Decisionmaking for the Terminally Ill Incompetent, 4 Am. J. Law & Med. 367 (1979). These cases have been followed on these points by other state supreme courts, and none has required routine court approval for such decisions.
Cruzan v. Director, Missouri Dept. of Health, 110 S.Ct. 2841 (1990), affirming Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988) (en banc), and see Annas, Nancy Cruzan and the Right to Die, 323 New Eng. J. Med 670 (1990), and Rhoden, Litigating Life and Death, 102 Harv. L. Rev. 375 (1988).
Kutner, Due Process of Euthanasia: The Living Will, a Proposal, 44 Ind. L. Rev. 539 (1969). See also B. D. Colen, The Essential Guide to the Living Will (New York: Pharos Books, 1987).
Deciding to Forego, supra note 6. at 142.
Id. at 142.
Id.
See New York State Task Force on Life and the Law, Life-Sustaining Treatment: Making Decisions and Appointing a Health Care Agent (New York: Task Force, 1987).
Id., and Charles P. Sabatino, Health Care Powers of Attorney, American Bar Association, Chicago Ill., 1990, (single copies free from AARP Fulfillment, [stock No. D138895], 1909 K Street, N.W., Washington, DC 20049).
Prince v. Massachusetts, 321 U.S. 158, 170 (1944).
Robertson, Involuntary Euthanasia of Defective Newborns: A Legal Analysis, 27 Stan. L. Rev. 213 (1975).
Robertson, Dilemma at Danville, 11 Hastings Center Report 5 (Nov. 1981).
See S. Elias & G. J. Annas, Reproductive Genetics and the Law (Chicago: Year Book, 1987), at 170.
Bowen v. American Hospital Association, 476 U.S. 610 (1986).
Child Abuse and Neglect Prevention and Treatment Program: Final Rule, 50 Federal Register 14877 (Apr. 15, 1985).
Elias & Annas, supra note 32, at 168 85.
Maine Medical Center v. Houle, Maine Superior Ct., Civil Action No. 74149 (1974); and see P. Stinson & R. Stinson, The Long Dying of Baby Andrew (Boston: Little Brown, 1983).
Standards and Guidelines for Cardiopulmonary Resuscitation (CPR) and Emergency Cardiac Care (ECC), 244 JAMA 453, 506 (1980).
Matter of Dinnerstein, 6 Mass. App. 466, 380 N.E.2d 134 (1978).
Id. For a case where the family’s wishes regarding CPR overrode the directions of the patient against it, see E. Heron, Intensive Care (New York: Ivy Books, 1987), at 202
See Blackhall, Must We Always Use CPR?, 317 New Eng. J. Med. 1281 (1987); and see Ruark et al., Initiating and Withdrawing Life Support: Principals and Practices in Adult Medicine, 318 New Eng. J. Med. 25 (1988); Taffet, Teasdale & Luchi, In-Hospital Cardiopulmonary Resuscitation, 260 JAMA 2069 (1988); and Murphy, Do-Not-Resuscitate Orders, 260 JAMA 2098 (1988).
Jane Hoyt v. St. Mary’s Rehabilitation Center, No. 774555, 4th Jud. Dist., Hennepin Co., Minn. aan. 2, 1981) (Arthur, J); and see Judging Medicine, supra note 22, at 212-16.
Blackhall, supra note 40.
Tomlinson&Brody, 318 New Eng. J.Med. 1758 (1988); and see Tomlinson & Brody, Ethics and Communication in Do-Not-Resuscitate Orders, 318 New Eng. J. Med. 43 (1988).
1987 NY Laws 818; NY Public Health Law art. 29(B).
See e.g., AMA and Hastings Center Guidelines, supra note 18; Levy, Pain Control Research in the Terminally Ill, 18 Omega 265 (1988).
Alsop, “The Right to Die with Dignity,” Good Housekeeping, 1974, 69, at 130.
itSee, e.g., D. Humphry & A. Wickelt, The Right to Die (New York: Harper & Row, 1986), at 296-314. A proposed California initiative on this subject did not receive a sufficient number of signatures to get on the ballot in 1988. See Capron, The Right to Die: Progress or Peril?, 2 Euthanasia Rev. 41 (1987).}
Louis Harris Poll, June 1987 (Making Difficult Health Care Decisions, a survey conducted for the Loran Commission); available from the Harvard Community Health Plan, Boston, Mass.
See, e.g., Kuhse, The Alleged Peril of Active Voluntary Euthanasia, 2 Euthanasia Rev. 60 (1987), and other articles in this issue; Special Supplement, Mercy, Murder, and Morality: Perspectives on Euthanasia, 19 Hastings Center Report SS1-32 Oan. 1989), and Angeli, Euthanasia, 319 New Eng. J. Med. 1348 (1988).
Schulman, AIDS Discrimination: Its Nature, Meaning and function, 12 Nova L. Rev. 1113, 1140 (1988).
J. Katz, The Silent World of Doctor and Patient. (New Haven, Conn.: Yale U. Press, 1984), at 151.
See, e.g., Annas, Death and the Magic Machine: Informed Consent to the Artificial Heart, 9 W. New Eng. L. Rev. 89 (1987).
Judging Medicine, supra note 22, at 384-90.
Brauer, “The Promise that Failed,” New York Times Magazine, Aug. 28, 1988, at 76.
Id., and see ch. IX, “Human Experimentation and Research.”
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© 1992 George J. Annas and the American Civil Liberties Union
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Annas, G.J. (1992). Care of the Dying. In: The Rights of Patients. Humana Press, Totowa, NJ. https://doi.org/10.1007/978-1-4612-0397-1_12
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