Advanced directives with previous competent patients
Order Description
On the selected case study provided and apply clear ethical reasoning to it. This is a brief paper on a the below case scenario study provided involving advanced directives. This project is an opportunity to apply ethical reasoning and ethical theories on a contemporary topic.
Your analysis paper will be formatted in APA format and include the following:
1. An introduction with a brief presentation of the facts in the case study and a clear thesis statement
2. Consideration of the factors of the case study.
3. Application of a specific ethical theory to defend your decision in the case study.
4. Demonstration of critical thinking with thoughtful analysis.
5. A clear conclusion that summarizes your decision in the case study.
Scenario 4:
Person D is a health-care professional sensitive to society’s needs for organ and tissue donations. In her advance directive, D provides that if she should become incompetent but remain physically healthy, then she wishes to donate a kidney and bone marrow to needy recipients. Later, D is afflicted with Alzheimer’s disease and reaches a point of profound dementia. Needy recipients for kidney and bone marrow transplants have been located. The prospective transplant
operations will pose only a slight risk to D and entail only mild pain. At the same time, the now incompetent D has no recollection of her prior instruction and no appreciation of
the altruism involved in donating an organ or tissue. She will derive no contemporaneous gain from the contemplated operations. Should the transplants be performed in accord with D’s advance directive?
Yet implementation of those prior instructions conflict in some measure with the contemporaneous interests or well-being of the incompetent persona. Can the advance directive prevail? Does prospective autonomy encompass the prerogative to impact negatively on the incompetent persona?please apply and outside reference APA reference.
scenario is from Advance Directives and the Pursuit of Death with Dignity by Norman L. Cantor, Indiana University Press, 1993. Reprinted with permission from the publisher
HU280 FINAL PROJECT Unit 8 Overview
Aging
Right of Refusal and Advanced Directives
Welcome to Unit 8. In this unit, you will examine the issues of the right to refuse treatment and advanced directives. You will explore the moral issues that must be considered when making life and death choices for once-competent patients and for never-competent patients.
This unit, you will write the first part of your Final Project. This is a brief paper on a case study of your choice involving advanced directives. This project is an opportunity to apply ethical reasoning and ethical theories on a contemporary topic.
The Discussion will investigate the ethical issues in withholding treatment from once-competent patients. You will apply this to patients who are in a vegetative state.
Reading assignments below:
The issue is theoretically complex and controversial, but any standard of individual well-being that does not ultimately rest on an individual’s own informed preferences is both problematic in theory and subject to intolerable abuse in practice. Thus, a standard that judges competence by comparing the content of a patient’s decision to some objective standard for the correct decision may fail even to protect appropriately a patient’s well-being. An adequate standard of competence will focus primarily not on the content of the patient’s decision, but on the process of reasoning that leads up to that decision.
While an adequate competency evaluation and standard focuses on the patient’s understanding and reasoning, rather than upon the particular decision that issues from them, the key issue remains. What level of reasoning is required for the patient to be competent? In other words, how well must the patient understand and reason to be competent? How much can understanding be limited or reasoning be defective and still be compatible with competence? It is important to emphasize another question faced by those evaluating competence. How certain must those persons evaluating competence be about how well the patient has understood and reasoned in coming to a decision? This last question is important because it is common in cases of marginal or questionable competence for there to be a significant degree of uncertainty about the patient’s decision-making process that can never be eliminated.
Relation of the Standard of Competence to Expected Harms and Benefits
Because the competency evaluation requires setting a balance between the two values of respecting patients’ rights to decide for themselves and protecting them from the harmful consequences of their own choices, it should be clear that no single standard of competence—no single answer to the questions above—can be adequate. That is simply because the degree of expected harm from choices made at a given level of understanding and reasoning can vary from virtually none to the most serious, including major disability or death.
There is an important implication of this view that the standard of competence ought to vary with the expected harms or benefits to the patient of acting in accordance with a choice—namely, that just because a patient is competent to consent to a treatment, it does not follow that the patient is competent to refuse it, and vice versa. For example, consent to a low-risk life-saving procedure by an otherwise 338339healthy individual should require a minimal level of competence, but refusal of that same procedure by such an individual should require the highest level of competence.
Because the appropriate level of competence properly required for a particular decision must be adjusted to the consequences of acting on that decision, no single standard of decision-making competence is adequate. Instead, the level of competence appropriately required for decision making varies along a full range from low/minimal to high/maximal. Table 1 illustrates this variation.
Thus, according to the concept of competence endorsed here, a particular individual’s decision-making capacity at a given time may be sufficient for making a decision to refuse a diagnostic procedure when forgoing the procedure does not carry a significant risk, although it would not necessarily be sufficient for refusing a surgical procedure that would correct a life-threatening condition. The greater the risk—where risk is a function of the severity of the expected harm and the probability of its occurrence—the greater the level of communication, understanding, and reasoning skills required for competence to make that decision. It is not always true, however, that if a person is competent to make one decision, then he or she is competent to make another decision so long as it involves equal risk. Even if this risk is the same, one decision may be more complex, and hence require a higher level of capacity for understanding options and reasoning about consequences.
Relation of Refusal of Treatment to Determination of Incompetence
A common criticism of the way physicians actually practice is that patients’ competence is rarely questioned until they refuse to consent to a physician’s recommendation for treatment. It is no doubt true that patients’ competence when they accept physicians’ treatment recommendations should be questioned more often than it now is, because consent without understanding provides little basis for believing the choice is best for the patient, and because the physician’s judgment about what is medically best is fallible. Nevertheless, treatment refusal does reasonably raise the question of a patient’s competence in a way that acceptance of recommended treatment does not. It is a reasonable assumption that physicians’ treatment recommendations are more often than not in the interests of their patients. Consequently, it is a reasonable presumption—though rebuttable in any particular instance—that a treatment refusal is contrary to the patient’s interest. Exploration of the reasons for the patient’s response, including determination of whether the decision was a competent one, are appropriate—though reassessment of the recommendation is often appropriate as well.
It is essential to distinguish here, however, between grounds for calling a patient’s competence into question and grounds for a finding of incompetence. Treatment refusal does reasonably serve to trigger a competency evaluation. On the other hand, a disagreement with the physician’s recommendation or refusal of a treatment recommendation is no basis whatsoever for a finding of incompetence. This conclusion follows from the premise noted earlier that the competency evaluation, as well as evidence in support of a finding of incompetence, should address the process of understanding and reasoning of the patient, not the content of a decision.
Another essential distinction is between two quite different types of treatment refusal: a refusal of all the treatment options offered, and refusing the one treatment that the physician believes to be best while accepting an alternative treatment that lies within the range of medically sound options. If there is more than one medically sound treatment option—in the sense that competent medical judgment is divided as to which of two or more treatments would be optimal—then the patient’s refusal to accept the option that the physician believes is optimal should not even raise the question of the patient’s competence, much less entail a finding of incompetence, at least so long as the option the patient chooses lies within the range of medically sound options.
CONTRAST WITH FIXED MINIMUM THRESHOLD CONCEPTION OF COMPETENCE
Before elaborating the implications of this analysis for operational measurements of competence, it will be useful to contrast it with a widely held alternative conception that has been implicitly rejected here. According to this other conception—which may be called the “fixed minimal capacity” view—competence is not decision-relative. The simplest version of this view holds that a person is competent if he or she possesses the relevant decision-making capacities at some specified level, regardless of whether the decision to be made is risky or nonrisky, and regardless of whether the information to be understood or the consequences to be reasoned through are simple or complex. This concept of competence might also be called the “minimal threshold status concept,” since the idea is that if a person’s decision-making capacities meet or exceed the specified threshold, then the status of being a competent individual is to be ascribed to that person. According to this view, competence is an attribute of persons dependent solely on the level of decision-making capacities they possess (though these may vary, of course, from day to day or even from hour to hour, depending upon the effects of disease, medications, emotional states, and so on).
In contrast, according to the conception of competence espoused here, competence is a relational property. Whether a person is competent to make a given decision depends not only upon that person’s own capacities but also upon certain features of the decision—including risk and information requirements. There are at least five points in favor of this approach.
First, a concept that allows a raising or lowering of the standard for decision-making capacities depending upon the risks of the decision in question is clearly more consonant with the way people actually make informal competency determinations in areas of judgment in which they have the greatest confidence and in which there is the most consensus. For example, you may decide that your 5-year-old child is competent to choose between a hamburger and a hotdog for lunch, but you would not think the child competent to make a decision about how to invest a large sum of money. This is because the risk in the latter case is greater, and the information required for reasoning about the relevant consequences of the options is much more complex. It is worth emphasizing that incompetence due to developmental immaturity, as in the case of a child, is in many respects quite different from the increasing incompetence due to a degenerative disease such as Alzheimer’s. These and other cases of incompetence do have in common, however, the relevance of the degree of risk for determining the appropriate level of competence.
Second, the decision-relative concept of competence also receives indirect support from the doctrine of informed consent. The more risky the decision a patient must make, and the more complex the array of possible benefits and burdens, the greater the amount of information that must be provided and the higher the standard of understanding required on the part of the patient. For extremely low-risk procedures, with a clear and substantial benefit and an extremely small probability of significant harm, the information that must be provided to the patient is correspondingly less.
Third, perhaps the most important reason for preferring the decision-relative concept of competence is that it better coheres with our basic legal framework in two distinct respects. First, in its treatment of minors, the law has already tacitly adopted the decision-relative concept and rejected the minimum threshold concept. The courts as well as legislatures now recognize that a child can be competent to make some decisions but not others—that competence is not an all-or-nothing status—and that features of the decision itself (including risk) are relevant factors in determining whether the child is competent to make that decision. This approach is increasingly popular, and is utilized in, for example, “limited conservator-ships,” where some decision-making authority is expressly left with the conservatee.
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CASE STUDY: A CHRONICLE: DAX’S CASE AS IT HAPPENED
Keith Burton
… The story of Don Cowart is remarkable in some ways but commonplace in others. A man’s wish to die is rather extraordinary in and of itself; but the pattern of events that shapes such a wish often is woven of the fabric of life’s everyday occurrences. Such is the case with Cowart.
Ray and Ada Cowart moved their family from the Rio Grande Valley to the small East Texas town of Henderson in the sixties. Ray prospered over the years as a rancher and real estate agent. Ada became a teacher in the Henderson school district. Their three children—Don, Jim, and Beth—were no different from other kids reared in a close-knit community. In fact, they were ordinary people living ordinary lives.
“Donny Boy,” as he came to be called by his father, was popular in school and excelled in athletics. He was captain of his high school football team and performed in rodeos. He liked to take risks, a trait that often dismayed his mother. It was risk taking that would later lure him to skydiving, surfing, and other sports of chance.
Don Cowart left Henderson in 1966 to attend the University of Texas at Austin. He had planned to return home at his graduation three years later to join his father in business; however, when notified of his military draft selection, Cowart instead elected to join the U.S. Air Force. He became a pilot and served in Vietnam. He married a high school sweetheart in 1972, but they divorced eight months later. In May 1973 he was discharged from active duty and returned to Henderson, where he began working with his father in real estate.
July 23, 1973, seemed no different to Cowart from any other Wednesday. It was hot and sultry as the afternoon sun slipped low along the pine trees in the countryside near Henderson. Ray and Don had driven out to a ranch to look over some property being offered for sale by the owner. They parked their car on a bridge over a dry creek and took off by foot. They talked and laughed together as they surveyed points of interest on the land. Their business completed, the Cowarts then returned to their car to go home for dinner.
The accident happened with no warning. The Cowart men had returned to their car but had not been able to start the engine. Ray had lifted the hood and removed the air cleaner from the engine. He primed the carburetor by hand and instructed Don to try the ignition. Several tries failed. It seemed to Don that the battery was near exhaustion. A final attempt proved fateful, however, as a blue flame shot from the carburetor and ignited a terrible explosion and fire.
Ray Cowart was hurled into heavy underbrush by the force of the explosion. The blast rocked the car and showered window glass over Don’s body. Around them, the fireball spread quickly, consuming pine trees and the scrub vegetation in the area. Don reacted quickly. He climbed from the burning car and began running toward the woods. But he was forced to stop by a fear that he would become entangled in the underbrush and slowly burn to death.
Don wheeled about and decided to chance the dirt road on which they had driven in. He ran through three walls of fire, emerged into a clearing, then fell to the ground and rolled his body to extinguish the flames. He got back to his feet and resumed running in search of help for his father.
It all seemed dreamlike. Don noticed his vision was blurred as though swimming under water. His eyes had been badly burned. Now the pain was coming in waves, and he knew it was real. He kept running.
Loud voices filtered through the woods. Don collapsed at the roadside as help arrived. He heard the footsteps of a man and then the exclamation, “Oh, my God!” when a farmer found him. Don sent the man after his father and lay wondering how badly 343344he was burned. When the man returned, Don asked him to bring a gun—a gun he would use to kill himself. The farmer refused.
In shock, Don assumed he and his father had caused the explosion by igniting gasoline from the car’s engine. Later he would learn that the explosion actually had been caused by a leaking propane gas transmission line in the area where they had parked. It was a freak event. A pocket of propane gas had formed in the dry creek bed. When the carburetor flamed up, it had ignited the gas.
Rescuers took the Cowart men to a hospital in nearby Kilgore. There, a decision was made to transport them by ambulance to a special burn unit at Dallas’s Parkland Hospital. Ray Cowart died en route to Dallas. Don Cowart remembers incredible pain, his begging for pain medication, and the paramedic’s refusal to administer drugs prior to their arrival in Dallas. By this time, Ada Cowart, too, was on her way to Dallas. She had returned home first to pack several changes of clothes. The radio had said the men were badly hurt. She didn’t expect to return to Henderson any time soon.
Even as the ambulance sped the 140 miles from Kilgore to Dallas, Don Cowart’s treatment regimen had begun. By telephone, Dr. Charles Baxter, head of Parkland’s burn unit, had directed fluid therapies to help in preventing shock to vital organs. On examination in Dallas, Baxter found Cowart had severe burns over 65 percent of his body. His face suffered third-degree burns and both eyes were severely damaged. His ears and hands were also deeply burned. Fluid therapies continued and were aided by several other measures: the insertion of an intertracheal tube to control the airway, catheters placed in every body opening, treatment with antibiotics, cleansing the wounds with antibacterial drugs, and tetanus prophylaxis. Heavy doses of narcotics were given for the pain.
In the early days of Don’s 232-day hospitalization at Parkland, doctors could not predict whether he would survive. It was touch and go for many weeks. Ada Cowart felt helpless; she could do little more than sit in the waiting area outside the intensive care unit with relatives of other burn victims, where she prayed and hoped for the best. Doctors permitted only short visits with her son. Don had given his mother power of attorney in the Parkland emergency room, and she in turn deferred to the medical professionals on treatment decisions.
For Cowart, there were countless whirlpool tankings in solutions to cleanse his wounds, procedures to remove dead tissue, grafts to protect living tissue, the amputation of badly charred fingers from both hands and the removal of his right eye. The damaged left eye was sewn shut. And there was terrible pain.
Through it all, Don had remained constant in his view that he did not want to live. His demands to die had started with the farmer at the accident site. They had continued at the Kilgore hospital, in the ambulance, and now at Parkland. He didn’t want treatment that would extend his misery and he made this known to his mother and family, Dr. Charles Baxter, a nurse named Leslie Kerr, long-time friend Art Rousseau, attorney Rex Houston, and many others.
Baxter remained undaunted by Don’s pleas to stop treatment, dismissing them at first as the typical response of burn victims to the pain of their wounds and treatment. In time, however, he openly discussed Cowart’s wish to die with Don, his mother, and his lawyer, considering all the medical and legal ramifications. Failing to get Ada Cowart’s and Rex Houston’s consent to the withdrawal of treatment, Baxter continued to deliver it.
For her part, Ada Cowart understood her son’s pain and anguish. She was haunted, nonetheless, by these thoughts: What if treatment were ceased and Don changed his mind in a near-death state? Would it be too late? Furthermore, her religious beliefs simply made mercy killing or suicide deplorable options. These religious constraints were reinforced by her fear that her son had not yet made his “peace with God.”
Rex Houston also had mixed feelings about Don’s wishes. On the one hand, he sympathized with Cowart’s condition—being unable to so much as take medication to end his life without the assistance of others. On the other hand, it was Houston’s duty to reach a favorable resolution of a lawsuit filed against the pipeline owners for Ray Cowart’s death and for Don Cowart’s disability. With regard to the latter, he needed a living plaintiff to achieve the best damage 344345award for the Cowart family. Moreover, Houston believed that such an award would provide the financial means necessary for Don Cowart’s ultimate rehabilitation. He therefore encouraged Cowart to see the legal proceedings through.
In February 1974, the lawsuit was settled out of court—one day prior to trial. Almost immediately, Don’s demands to die quickened. There had been talk before with Art Rousseau of getting a gun. Don had asked Leslie Kerr if she would help him by injecting an overdose of medication. Now Cowart even talked with Houston about helping him get to a window of his sixth-floor hospital room, where presumably he would leap to his death. All listened but none agreed to help.
On March 12, 1974, Don was discharged from Parkland. He, his family, and his doctors agreed that his condition had improved sufficiently to warrant his transfer to the Texas Institute for Research and Rehabilitation in Houston. Nine months removed from his medical residency, Dr. Robert Meier of TIRR found Cowart to be a passive recipient of medical care, although the philosophy of treatment in this rehabilitation center encouraged patient involvement in treatment decisions. Previously Don had no say in his care; now he would be offered choices in his own treatment.
All seemed to go well during the first three weeks of his stay, until Cowart realized the pain he had endured might continue indefinitely, thanks to a careless comment by a resident plastic surgeon that his treatment would be years in completion. Faced with that prospect, Cowart refused treatment for his open burn areas and stopped taking food and water. In a matter of days, Cowart’s medical condition deteriorated rapidly. Finding his patient in serious condition, Dr. Meier was deeply perplexed about what to do next. He believed it his duty to help Cowart achieve the highest measure of rehabilitation, but he was not inclined to force upon the patient care he did not wish to receive. Faced with this dilemma, he called for a meeting with Ada Cowart and Rex Houston to discuss with Don the future course of his treatment.
Ada Cowart was outraged by Don’s condition. She had been discouraged from staying with her son at TIRR, and in her absence his burns had worsened. He was again near death, due to his refusal of whirlpool tankings and dressing changes. It was agreed in the meeting that Cowart would be transferred to the burn unit of John Sealy Hospital of the University of Texas Medical Branch in Galveston, where his injuries could again be treated by burn specialists.
On April 15, 1974, Don was admitted to the Galveston hospital, in chronic distress from infected wounds, poor nutrition, and severe depression. His right elbow and right wrist were locked tight. The stubs of his fingers on both hands were encased in grotesque skin “mittens.” There was practically no skin on his legs. His right eye socket and closed left eye oozed infection. And excruciating pain remained his constant nemesis.
Active wound care was initiated immediately and further skin grafts were advised by Dr. Duane Larson to heal the open wounds on Cowart’s chest, legs, and arms. But Cowart bitterly protested the daily tankings and refused to consent to surgery. One night he even crawled out of bed, hoping to throw himself through the window to his death, but he was discovered on the floor and returned to bed.
Frustrated by Cowart’s behavior, Dr. Larson consulted Dr. Robert White of psychiatric services for an evaluation of Don’s mental competency. White remembers being puzzled by Cowart: Was he a man who tolerated discomfort poorly or perhaps was profoundly depressed? Or was this an extraordinary man who had undergone such an incredible ordeal that he was frustrated beyond normal limits? White concluded, and a colleague confirmed, that Cowart was certainly not mentally incompetent. In fact, he was so impressed with the clarity of Cowart’s expressed wish to die that he asked permission to do a videotape interview for classroom use in presenting the medical, ethical, and legal problems surrounding such cases. That filmed interview, which White entitled Please Let Me Die, eventually became a classic on patient rights in the field of medical ethics.
Having been declared mentally competent, Cowart still found it difficult to gain control over his treatment. He and his mother argued constantly over treatment procedures. Rex Houston helped get changes in his wound care but turned a deaf ear to Cowart’s plea to go home to die from 345346his wounds or to take his own life. In desperation, Cowart turned to other family members for assistance in securing legal representation, but without success. Finally, with White’s help, Cowart reached an attorney who had represented Jehovah’s Witnesses attempting to refuse medical treatment, but he was not optimistic that a lawsuit would free him from the hospital.
Rebuffed on every hand, Cowart reluctantly became more cooperative. White secured changes in Don’s pain medication before and after the daily tankings, making treatments more bearable. Psychotherapy and medication helped improve his overall outlook by relieving his depression and improving his sleep. Encouraged that he might still regain sight in his left eye, Don more or less accepted his daily wound care and even agreed to surgical skin grafts early in June 1974. By July 15, his physical condition had improved enough to allow him to transfer out of the burn unit of the John Sealy Hospital to the psychiatric unit of the Jennie Sealy Hospital in the University of Texas Medical Branch under White’s direct care while his wounds continued to heal.
Amid these changes there were still periodic conflicts between Cowart and those around him over his confinement in the hospital. There were reiterated demands to die and protests against treatment. A particularly explosive encounter between Cowart and Larson occurred on the day preceding his second and last major surgical procedure in the Galveston hospital. Cowart had agreed to undergo surgery to free up his hands, but the night before he changed his mind. The next morning, Larson angrily confronted Cowart with the challenge that, if he really wanted to die, he would agree to the surgery that would enable him to leave the hospital and go home where he could take his own life if he wished. Anxious to do exactly that, Cowart consented to the surgery, which was performed on July 31.
Don Cowart’s stormy stay at Galveston finally ended on September 19, 1974. He had been hospitalized for a total of fourteen months, but at last he was going home. His prognosis upon dismissal was listed simply as “guarded.”
Cowart was glad to be back in Henderson. The little things counted the most—sleeping in his own bed, listening to music, visiting with friends. But it was different for him than before the accident. He was totally blind, his left eye having failed to recover. His hands and arms remained useless. He was badly scarred. A dropped foot now required that someone assist him in walking. Some of his burn sites still were not healed.
Everything he did required the help of others. Someone had to feed him, bathe him, and help with personal functions. The days seemed endless. He tried to find peace in sleep, but even this dark release was impossible without drugs. While he couldn’t see himself, Don knew his appearance drew whispers and stares in restaurants.
He had his tapes, talking books, television, and CB radio. He could use his sense of hearing, though not as well as before due to the explosion and burns. And he could think. For a while, he could see in his mind’s eye the memories of earlier times. Then the memories started to fade.
Ada Cowart had lost much, but she never lost her religious faith. There had been times when even she had admitted that maybe it would have been best if Don had died with her husband. She reconciled her doubt with the thought that no mother can give up the life of a son. Ada never gave up hope that Don could find new faith in God.
Homecoming brought peace for a time. As Don’s early excitement for returning home gave way to deep depression and despair, however, conflict returned to their lives. They argued about how he could occupy himself, how he dressed, his personal habits, and his future. Frustration led to a veiled suicide attempt, Don stealing away from the house during the night to try throwing himself in the path of trucks hauling clay to a brick plant. The police found him and brought him home quietly.
For the next five years, Cowart lived in a shadow world of painful rehabilitation, chronic boredom, and failed relationships. His difficulties were not for want of trying. With Rex Houston’s encouragement and assistance he tried pursuing a law degree. Fortunately, his legal settlement with the pipeline company provided the financial means for the nursing care and tutorial assistance which would be required because of his massive handicaps.
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Cowart tested out his abilities as a blind student in two undergraduate courses at the University of Texas in Austin during the fall of 1975. He spent the spring at home in Henderson preparing for the tests that were required for admission to law school. In the summer of 1976, he enrolled for a part-time course load in Baylor University’s School of Law.
Don handled his studies at Baylor in fine fashion despite his handicaps, but the strain was tremendous. He was forced to live with other people, his independence was limited, and his sleep problems persisted. When a special relationship with a woman ended abruptly in the spring of 1977, his life caved in. He tried to commit suicide by taking an overdose of pain and sleep medications, but he was discovered in time to have his stomach pumped at the hospital emergency room. He had trouble picking up his studies again, so he dropped out before the spring quarter was completed.
Cowart returned home defeated and discouraged, living with his mother for the next half year. He resumed his studies at Baylor in the spring of 1978, only to drop out again before he had completed the third quarter in the fall of 1979. He again retreated to his mother’s home, filled with doubts that he would ever be able to pass the bar. By the spring of 1980, he was ready for another try at schooling, this time in a graduate program in building construction of Texas A&M University. Once again, the old patterns of sleepless nights and boring days got the best of him and he made a half hearted effort at slashing his wrists with a razor blade.
Looking back, Cowart saw his futile efforts to take his own life as a bitter human comedy. The doctors in Galveston had encouraged him to accept treatment that would free him of hospitalization and permit him to end his life, if that was his wish. But he found it difficult to find a way of killing himself without bringing further misery on himself—brain damage or further hospitalization. Ironically, he realized that he was no more successful in ending his life than in making his life work.
As a last resort, Cowart contacted White for help and was voluntarily readmitted under White’s care to the Jennie Sealy Hospital on April 12, 1980. During his month-long stay, he met with White for psychotherapy treatments daily. Even more important, his sleep problems were finally resolved by weaning him away from the heavy sleep medications that he had taken for years. Cowart describes that experience as being like “coming out of a fog.” For the first time since his harrowing burn treatment ordeal, his sleep became normal and his depression lifted.
It was during this stay that I met Don Cowart and we began early discussions of a film that would eventually come to be known as Dax’s Case. I still call him Don because that is how I know him, but he legally changed his name to Dax in the summer of 1982. Some commentators on the film speculate that this change of name reflects some personal metamorphosis that Cowart went through during his lengthy rehabilitation period. But Cowart offers a simpler explanation. As a blind man with impaired hearing, he often found himself responding to comments addressed to others bearing the name of Don. I accepted his reasons for changing his name but asked him not to think the poorer of me for persisting in calling him Don.
It would be easy to believe that Dax’s Case, more than five years in the making, served as a crucible for Don Cowart’s rehabilitation. During this time, new hope and independence came into his life. He started a mail-order specialty foods business in Henderson using his creative powers. He moved into his own house. He became an articulate spokesperson for “the right to die” under auspices of Concern for Dying. And he married a former high school classmate in February 1983.
There is always another chapter, however. Even now, Don’s life continues to shift. His first venture in business did not succeed financially. His second marriage ended unhappily. Amid failure has also come achievement. He returned to law school at Texas Tech University in Lubbock, where he completed his law degree in May and passed the bar in the summer of 1986. He set up a small law practice in Henderson and has recently taken in his first partner. He continues to represent his views on patient rights at educational symposiums and public forums. In time, he hopes to become a specialist in personal injury cases.
From Dax’s Case: Essays in Medical Ethics and Human Meaning, edited by Lonnie D. Kliever, Southern Methodist University Press, 1989. Reprinted with permission.
Editors’ note: Some text has been cut. Students who want to read the article in its entirety should consult the original.
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THE LIMITS OF LEGAL OBJECTIVITY
Nancy K. Rhoden
PRIOR DIRECTIVES AND THE OBJECTIVE ENTERPRISE
The objective standard as articulated in Conroy was, of course, intended only for those situations in which the patient’s prior beliefs were not determinative. If taken to its logical extension, however, the quest for a person-neutral standard may come to clash with the widespread acceptance of clear-cut prior directives as controlling. This conflict arises because if we focus solely on the incompetent’s present interests, we so radically distinguish her from the author of the prior directive that it’s hard to see why the prior choice should govern.
To illustrate how a completely present-oriented test can undermine the justification for honoring living wills, imagine for a moment that after the court evaluated Ms. Conroy objectively, her nephew discovered a valid and clearly applicable living will rejecting all medical treatment if “barely conscious.” Given its preference for a subjective test, the Conroy court almost certainly would want to reconsider and let the document control. But this hypothetical discovery creates a “past-present” conflict, in which Ms. Conroy’s present interests support treatment, while her prior choice is to forgo it. Although the court could simply hold that an applicable living will trumps current interests, this decision procedure seems rather arbitrary in light of the just-completed assessment of current interests. Why, one might ask, should a prior directive control if it thwarts a patient’s present interests?
One answer to this is that it should not. Dresser, as the most logical and consistent advocate of a present best interests test, essentially rejects living wills, except to the extent they provide useful reassurance in cases in which the objective choice would be to terminate treatment, so that the wills are largely redundant.1 Hence my first task is to analyze her arguments and rebut them by setting forth a rights-based justification for honoring prior directives….
The Impairment of the Incompetent’s Interests
… [Dresser argues] that honoring a living will can compromise unacceptably the interests of an incompetent person. One cannot be sure that what the person chose then is what he would choose now, because views about what constitutes an acceptable level of functioning may change radically as function declines. Active, healthy persons often say they would never want to live if wheelchair-bound, on dialysis, or whatever, and then later embrace life despite their disabilities. Likewise, once capacity for complex intellectual pleasures is gone, simpler things take on greater importance. As Dresser and Robertson put it:
If we truly could determine the choice that these patients would make if suddenly able to speak—if they could tell us what their interests in their compromised states are—such choices would be most likely to reflect their current and future interests as incompetent individuals, not their past preferences.2
Thus prior directives reflect competent persons’ former interests, but the better, more caring way to make choices for incompetents is to focus on their current interests. The law should not allow someone to make a binding future choice for death, because to do so gives an unacceptable degree of primacy to the interests of competent persons over incompetent ones.
The strength of this argument is reinforced by a very troubling sort of example. Suppose a highly intellectual person makes a prior directive stating that if he becomes even somewhat mentally impaired, he wants no medical treatment. He then suffers a mild stroke and is in a nursing home. While he cannot comprehend his prior directive, and hence can neither affirm nor rescind it, he appears to enjoy his simple existence, watching television and sharing meals with other patients. Then he gets pneumonia. His directive clearly rejects antibiotics. If it is controlling, the staff must simply watch him die. But, Dresser quite reasonably argues, he has substantial present interests in life, and they must prevail. This sort of case may well incline us toward a Parfit-type view*—that this happy incompetent person is someone different from the intellectual who made the document—or, at least, should make us question the wisdom of necessarily subordinating present interests to prior choices, no matter how explicit and strongly held.
TESTING THE LIMITS OF PROSPECTIVE AUTONOMY: FIVE SCENARIOS
Norman L. Cantor
Several examples will help crystallize the potential tension between an advance directive and the contemporaneous interests of an incompetent patient. In the following scenarios, assume that all patients were fifty years old at the time of making an advance directive and that the critical medical decisions are confronted five years later. Assume also that no evidence exists that the patient changed his or her mind or wavered in resolve between preparation of the advance directive and losing competence.
Scenario 1: Person A, a Jehovah’s Witness, prescribes in an advance directive that blood transfusions should not be administered regardless of the life-saving potential of such medical intervention. She is aware of the life and death implications of this religiously motivated instruction. Later, A becomes prematurely senile and incompetent. Still later, the senile patient develops bleeding ulcers which demand blood transfusions. With a blood transfusion, she will survive and continue to live as a “pleasantly senile” person for a number of years. The senile A no longer has recollection of, or interest in, religion; however, she remained an avid Jehovah’s Witness up until the time of incompetency. Should the attending physician administer a life-saving blood transfusion?
Scenario 2: Person B believes both that life should be preserved to the maximum extent possible and that suffering is preordained and carries redemptive value in an afterlife. B prepares an advance directive in which all possible life-extending medical intervention is requested and all pain relief is rejected. At the time of the preparation of the directive, B has a conversation with a physician in which the physician explicitly warns B that many terminal illnesses entail excruciating pain. Despite that admonition, B directs that all means to preserve life be utilized and that analgesics be omitted. Subsequently, B suffers from cancer, which both affects his brain, rendering him incompetent, and causes him to suffer excruciating pain. Further medical treatment such as radiation or chemotherapy will extend B’s life, but will not itself relieve the pain or cause any remission in which competence would return. Should the attending physician sedate the patient, or cease the life-prolonging medical intervention, or both?
Scenario 3: Person C is an individual with chronic heart problems. Physicians have informed C that at some stage he will need a heart transplant in order to survive. C prepares an advance directive stating that if he becomes incompetent and survival becomes dependent on a heart transplant, then such a transplant should be rejected because of its expense. C prefers to leave a substantial monetary legacy to his children. Later, C becomes prematurely senile and incompetent. Still later, C’s heart deteriorates and a heart transplant becomes necessary to preserve C’s life. With the transplant, C will very likely continue to live for three to five years. Without it, C will die within a few months. The transplant will cost $100,000 and is not covered by any insurance or government benefit program. C’s estate totals $100,000. Should a life-extending heart transplant be performed?
Scenario 4: Person D is a health-care professional sensitive to society’s needs for organ and tissue donations. In her advance directive, D provides that if she should become incompetent but remain physically healthy, then she wishes to donate a kidney and bone marrow to needy recipients. Later, D is afflicted with Alzheimer’s disease and reaches a point of profound dementia. Needy recipients for kidney and bone marrow transplants have been located. The prospective transplant operations will pose only a slight risk to D and entail only mild pain. At the same time, the now incompetent D has no recollection of her prior instruction and no appreciation of 366367the altruism involved in donating an organ or tissue. She will derive no contemporaneous gain from the contemplated operations. Should the transplants be performed in accord with D’s advance directive?
Scenario 5: Person E is a sociology professor known for her intellectual sharpness. E takes enormous pride in that intellectual acuity. E drafts an advance directive prescribing that if she should become mentally impaired and incompetent to the point where she can no longer read and comprehend a sociology text, then all life-preserving medical intervention should be withheld. When reminded by her spouse about the potential for happiness in an incompetent state, E replies that she deems significant mental dysfunction to be degrading and personally distasteful. For her, such a debilitated existence is a fate worse than death. Later, E suffers a serious stroke which renders her permanently incompetent and incapable of reading or performing intellectual tasks. E is also unable to swallow and is therefore dependent on artificial nutrition. At the same time, E does not appear to be in any pain and seems to derive some pleasure from listening to music. Should the life-preserving nasogastric tube be continued?
In each of the above situations, people have issued advance directives which effectuate their personal values and concepts of dignity. Yet implementation of those prior instructions conflict in some measure with the contemporaneous interests or well-being of the incompetent persona. Can the advance directive prevail? Does prospective autonomy encompass the prerogative to impact negatively on the incompetent persona?
From Advance Directives and the Pursuit of Death with Dignity by Norman L. Cantor, Indiana University Press, 1993. Reprinted with permission from the publisher.
Key Concepts: Unit 8
• Acute Care: Short-term care; often of an urgent nature.
• Chronic Care: Long term care; often related to care for older adults.
• Competence: The capacity for autonomous decision making.
• Alzheimer’s Disease: The most common form of dementia.
• Rationing: A fixed portion. This refers to the restriction of health care.
• Home Health Care: The medical and personal care of individuals in the privacy of their homes.
• Patients’ Bill of Rights: A bill that defines and protects patient’s key rights in a medical setting and grants them autonomy over medical decisions and interferences.
• Advanced Directive: The expressed wishes of an individual as his or her rational, autonomous self.
Quality of Life: The patient’s ability to enjoy normal life activities.
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