Abstract
If competent patients request that physicians participate in the deactivation of total artificial hearts and left ventricular assist devices, should physicians always comply? Patients and physicians currently have unsettled attitudes towards this question. I maintain that this issue is unsettling largely because the prospect of deactivation seems to give rise to a conflict between two deeply entrenched commitments of medical ethics: a commitment to the moral equivalency of withholding and withdrawing life-sustaining treatment, and a commitment to the prohibition on physicians’ harming patients. I examine this apparent conflict and look at different ways of resolving it. I argue that the moral equivalency of withholding and withdrawing provides a decisive reason for physicians to participate in deactivation when a competent patient requests it, and that the prohibition on harming patients does not constitute a reason for physicians not to participate in deactivation. I also argue that an understanding of why it is acceptable for physicians to participate in deactivation reveals why physician-assisted death is morally acceptable in certain kinds of cases.
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- 1.
If physician-assisted death for competent patients is morally acceptable—if it is acceptable for a physician to kill a competent patient when the patient requests it, or for a physician to assist a competent patient in killing herself—then it is hard to see how physician participation in the deactivation of a TAH or LVAD for competent patients could be unacceptable. In Sect. 12.6, I will be trying to make plausible the converse: that if it is morally acceptable for a physician to participate in the deactivation of a TAH or LVAD for a competent patient, then physician-assisted death should be morally acceptable as well.
- 2.
But see footnote 18 for a consideration that may justify withholding very expensive or scarce treatments from patients who might choose later to discontinue those treatments.
- 3.
I think there are at least two features of the ethical prohibition on physicians’ harming a patient that make it complicated to apply. First, this prohibition in its simplest form is outdated. In the past it might have made sense for physicians to take a prohibition on harm to forbid any course of action that could make a patient worse off than if she had never been treated by a doctor at all. But because of advances in medical technology, the possibility that a treatment will harm a patient is no longer a decisive reason not to undertake it. This is because doctors now have at their disposal options that both hold out the promise of spectacular improvement and carry with them undeniable risk. If someone has a serious back injury, it might be appropriate to operate even if there is some chance the patient will have less mobility as a result. If someone has cancer, it might be appropriate to treat her with certain therapy even if there is chance that the patient will die sooner as a result. Second, it is unclear how to define “harm.” If a competent patient requests that something ought to be done to her, on what basis can we claim that it harms her? If the prohibition on harming is not to collapse into respect for autonomy (which is what would happen if harm is defined by whatever the competent patient wishes for herself), harm must be construed in a way that pulls apart from what a competent patient wishes to happen to her body, and it’s far from obvious what the best such construal will be. Nonetheless, despite these difficulties, many people do believe that there is a prohibition on physicians’ harming patients, and I think there are some cases in which it seems to make good sense of common and powerful intuitions. The prohibition on harming seems to explain, for instance, why a physician ought not to accede to a patient’s request for performance-enhancing steroids or for health-destroying cosmetic surgery or to amputate a healthy leg. My goal is to show that the prohibition on harming, appropriately conceived of, does not constitute a reason to oppose physician participation in the deactivation of TAHs and LVADs and certain cases of physician-assisted death.
- 4.
- 5.
- 6.
For the purposes of this section, when I am trying to explain the opposition to deactivation, I will proceed as though an organic heart transplant is a completed treatment. But in Sect. 12.6, I will deny exactly this, holding instead that organic heart transplants are continuous treatment.
- 7.
Others have also argued that we ought not to take into moral account the distinction between bridge treatments and destination therapies. Teuteberg et al. (2013, 374) write, “Our data highlight the artificial dichotomy of the currently accepted implant strategies of [bridge treatment] and [destination therapies], which are increasingly less representative of the clinical circumstances in which [a TAH or LVAD] is used… Additionally, we have shown that the initial implant intent is dynamic, with some patients becoming more likely to be transplanted and others becoming less likely to be transplanted or changed to a strategy of [destination].” Fang and Stehlik (2013, 380) write, “[i]s it even relevant to have a strategic intent at the time of LVAD implant other than to extend survival and improve quality of life?… The distinction between transplant and nontransplant candidates is arbitrary and poorly defined by hard evidence. The condition, advanced heart failure, is the same; the affected populations are not distinct.”
- 8.
For a searching discussion of the difficulties of trying to apply these distinctions in medical contexts, see Jansen (2006).
- 9.
For discussion of the ways in which our judgments can be affected by a medical technology’s “aesthetic” appearance, see Hopkins (1997, 36).
- 10.
For insightful discussion of this kind of view, see Paola and Walker (2000).
- 11.
One could argue that because deactivation leads to patient’s death, and the patient’s death is a new state, deactivation does introduce something new—the state of death of the patient. The problem with this argument is that it turns “the introduction of something new” into too wide a notion to do the work of morally distinguishing between deactivation of a TAH or LVAD, on the one hand, and the withdraw of a ventilator, on the other. If we take the state that follows from any action to be something new that that action has introduced, then the withdrawal of a ventilator from a ventilator-dependent patient will introduce the state of the patient’s death. But it is a fixed point in this discussion that it is not wrong for a physician to participate in the withdrawal of a ventilator. So those who want to hold that there is something wrong with deactivation but not with withdrawal of a ventilator cannot construe “the introduction of something new” as widely as the causing of a state.
- 12.
One could argue that damaging the leg is an act of commission while deactivating a TAH or LVAD is an act of omission. I myself do not want to place moral weight on the commission-omission distinction (a point to which I’ll return in Sect. 12.6). Anyone who does want to rely on that distinction, however, will hold that damaging a healed, perfectly-functioning leg is an act of commission. Anyone who relies on that distinction as it is typically deployed in the context of medical ethics will also hold that discontinuing a ventilator or withdrawing artificial nutrition and hydration is an act of omission. And the act of deactivating a TAH or LVAD is like discontinuing a ventilator and withdrawing artificial nutrition and hydration, and not like damaging a healed, perfectly-functioning leg. In the case of the ventilator, artificial nutrition and hydration, and the TAH or LVAD, the act in question is the turning-off of an introduced life-sustaining technology. There are differences, of course, between a TAH or LVAD and those other life-sustaining technologies, as we saw in Sect. 12.4. But those differences do not bear on the question of whether the act of deactivation taken on its own is the stoppage of the functioning of an invasive medical treatment. Now I should point out that Rady and Verheijdge (2014, 4) say, “Deactivating a cardiac device is viewed medically and legally as an act of commission rather than an act of omission.” But their only support for this claim is a reference to three articles, and none of those articles endorses characterizing the deactivation of MCS as an act of commission. Indeed, as the authors write in one of those articles, “In the context of ethical principles, regardless of the fact that [an MCS] is a constitutive therapy without the continued operation of which the patient may not survive, it still represents an artificial life-sustaining treatment that the patient has the right to refuse at any time. Furthermore, established case law holds that patients have the right to refuse or request the withdrawal of any treatment and have repeatedly held that no single treatment holds unique moral status” (Kapa et al. 2010).
- 13.
Lynn Jansen raised an interesting objection about the account of a baseline and harming that I use here. On this account, if a treatment is ongoing, then the patient’s baseline is the state she would have been in before the treatment began, and thus, physicians harm a patient only if they lower her below the state she was in before treatment began. But imagine that there is a treatment that is necessary to keep a patient alive; if the treatment had not been initiated, the patient would have died. Now imagine that the patient wishes to continue the treatment but that the physician discontinues it, against the patient’s wishes, and the patient subsequently dies. It might seem that my account commits us to saying that the physician has not harmed the patient, because the patient is no worse off than she would have been if the treatment had not been started in the first place. But, so this objection goes, it seems perfectly clear that the physician has harmed the patient. I think the best response to this objection is to hold that the wrong the physician has committed is violating the patient’s right to determine for herself what happens to her body, not harming the patient’s health by lowering her below her baseline. If there is a harm involved, it is not that of lowering the patient’s health below her baseline but of failing to respect the patient’s wishes about how she wants to be treated. Lynn Jansen also pointed out that there is often a continuum between a treatment that is on-going and a treatment that is finished, not a clear line. What if the person who has had his leg fixed still needs to rub an ointment in every night for a year, and needs to see the doctor once every six months to get a prescription for the ointment? If the leg is otherwise healthy, it seems incorrect to say that the patient is not physically harmed if the physician re-breaks the leg because the patient is still receiving some care from the physician. But it also seems ad hoc to say that the treatment is completely finished. I will proceed as though we are discussing only cases in which we can draw a clean line between on-going and completed treatments. It might be, however, that there is a continuum of harming that tracks the extent to which a medical treatment is on-going: the more significant and life-affecting a treatment is at a particular moment, the less of a harm it is for a physician to return the patient to the state she would have been in if she had never interacted with the physician.
- 14.
An important issue that I cannot discuss here is the scarcity of resources. The implantation of a TAH or LVAD is an expensive, resource-intensive treatment. In the world of medicine today, there clearly is an obligation to husband our medical resources as efficiently as possible. Might this imply that we develop selection criteria for TAHs and LVADs such that we only implant them in people whom we have compelling reason to believe will continue to live with them for as long as possible? We already have in place such criteria for organ transplantation. Whatever we might think about a person’s right to hasten her own death, donated organs are in such short supply that it is widely accepted that we ought to transplant them only in people who will get the most possible life out of them. A patient who is likely to live significantly less time than otherwise equivalent patients, either because her medical prospects are bleaker or because we believe she very well may decide in the near future that she prefers not to live any longer, is less likely to receive a transplanted organ than those others. Should we screen potential TAH and LVAD patients in the same way, so that we do not implant these very expensive devices in people if we suspect that they may later decide that they want the devices deactivated, reserving the devices and the resources needed to develop them for those patients who will use them to live as long as possible? Can we legitimately enforce an informed consent-type contract that the patient signs and that forbids future deactivation? How would this square with the President’s Commission’s admonition against withholding possibly beneficial treatment because of the specter of future decisions to withdraw? I think these questions are important and that answering them warrants a thorough investigation of its own. I am arguing here that there is nothing intrinsically wrong with physician participation in the deactivation of TAHs and LVADs. But that leaves open the possibility that there are consequentialist considerations and contingent features of resource allocation that imply weighty reasons not to implant these devices in patients whom we have reason to believe will request deactivation.
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Gill, M.B. (2015). Implanted Medical Devices and End-of-Life Decisions. In: Cholbi, M., Varelius, J. (eds) New Directions in the Ethics of Assisted Suicide and Euthanasia. International Library of Ethics, Law, and the New Medicine, vol 64. Springer, Cham. https://doi.org/10.1007/978-3-319-22050-5_12
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