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Toward a Good Death: A Socio-legal, Ethical, and Medical Challenge

  • George P. SmithII

Abstract

This chapter recapitulates the positive steps being taken incrementally to promote and ensure that either an ethic or a right to a compassionate death is evolving. The salutary effect of the Uniform Health Care Act in establishing parameters for determining medical futility—taken together with the efforts of the Academy of Palliative Medicine to structure standards for regulating nutrition and hydration in palliative management—and the guidance of the American Medical Association in establishing when it is clinically and ethically proper to sedate to unconsciousness, are powerful paradigms evidencing a new movement toward shaping contemporary standards of normative conduct for end-of-life decision making. Of necessity, these standards are grounded in notions of compassion, dignity, beneficence and common sense.

Keywords

Palliative Care Supra Note Palliative Medicine Good Death Terminal Sedation 
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Notes

  1. 1.
    Timothy E. Quill, Physician-Assisted Death in The United States: Are the Existing ‘Last Resorts’ Enough?, 38 HASTINGS CENTER RPT. 17, 21 (Sept.–Oct. 2008).Google Scholar
  2. 2.
    PRESIDENT’S COUNCIL ON BIOETHICS, TAKING CARE: ETHICAL CAREGIVING IN OUR AGING SOCIETY2i7 (2005). See Charles Ornstein, Deciding when to let Mom die, WASH. POST, Mar. 3, 2013, at B1 (concluding that the standard of best possible care should not always mean keeping people alive or undertaking the most aggressive cancer chemotherapy). See also THOMASMA and GRABER, supra Ch. 1, note 70 at 192 passim; PELLEGRINO and THOMASMA, supra Ch. 1, note 70 at Chs. 2, 5.Google Scholar
  3. 6.
    See MICHAEL ROSEN, DIGNITY: ITS HISTORY AND MEANING (2012); Rex D. Glensy, The Right to Dignity, 43 COLUM. HUM. RTS. L. REV. 65 (2011); Death with Dignity National Center supra Ch. 2, note 40.Google Scholar
  4. 8.
    See Ch. 3, supra notes 80–91 and accompanying text; Knauer, supra Ch. 1, note 8. See also Barry R. Furrow, Pain Management and Provider Liability: No More Excuses, 29 J. L. MED. and ETHICS 28 (2001).Google Scholar
  5. 16.
    See e.g., Ch. 4, supra notes 89–90. See Susan L. Mitchell et al., The Clinical Course of Advanced Dementia, 361 NEW ENG. J. MED. 1529–1535 (Oct. 15, 2009).Google Scholar
  6. 21.
    Emily Jackson, Death, Euthanasia and The Medical Profession in Death Rites and Rights, Ch. 3 at 49 (Belinda Brooks-Gordon et al., eds. 2007).Google Scholar
  7. 27.
    See supra Ch. 3, notes 11–22 and accompanying text. For patients with advanced dementia, typical complications will include pneumonia, incontinence, limited verbal communication, eating difficulties and febrile episodes—all of which are correlated, directly, with morality rates of six months. These distressing symptoms should be palliated rather than treated aggressively and, thus, inhumanely. Mitchell et al., supra note i6 at 1529; Greg A. Sachs, Dying from Dementia, 361 NEW ENG. J. MED. 1595, 1596 (Oct. 15, 2009).Google Scholar
  8. See R. Sean Morrison and Albert L. Siu, Survival in End-Stage Dementia Following Acute Ilness, 284 JAMA 47 (July 5, 2000). For Callahan, testing the burdens and benefits of treatment modalities is tied ultimately to the principle of medical futility. Accordingly, when there is a significant likelihood that the end result of further treatment will either raise a strong probability of death, entail a very real probability of death that treatment will bring extended pain and suffering, extend a state of unconsciousness which is not curative or when available treatment—while promising an extension of life—increases greatly the near certainty of “a bad death” then, these forms of treatment are classified as medically futile and improper to undertake. CALLAHAN, supra note 26 at 201–02. See generally GEORGE P. SMITH, II, FAMILY VALUES AND THE NEW SOCIETY: DILEMMAS OF THE 21ST CENTURY, Ch. 8 (1998).Google Scholar
  9. 30.
    Graham Scambler, Death on the Edge of the Lifeworld, in Death Rites and Rights, Ch. 10 at 172 (Belinda Brooks-Gordon et al., eds. 2007). Others see a good death providing time to come to terms with one’s life and “those with whom we have lived it—to thank and be thanked, to forgive and be forgiven” Manuel Roig-Franzia, The End is Near, WASH. POST MAG. 6, 17 (quoting Rev. David Mott, Baltimore, Md.). See GEORGE P. SMITH, II, LAW AND BIOETHICS: INTERSECTIONS ALONG THE MORTAL COIL Ch. 8 (2012); MARILYN WEBB, THE GOOD DEATH: THE NEW AMERICAN SEARCH TO RESHAPE THE END OF LIFE (1997).Google Scholar
  10. 35.
    Id. But see Rebecca Dresser, Precommitment: A Misguided Strategy for Securing Death with Dignity, 81 TEX. L. REV. 1823 (2003) (questioning the relevance of advance treatment choices as misguided and morally troubling and often in conflict with a physician’s responsibility to protect incompetent patients from harm).Google Scholar
  11. 43.
    Pellegrino, supra note 7 at 220, 227. See generally Amir Halevy, Medical Futility, Patient Autonomy, and Professional Integrity: Finding the Appropriate Balance, 18 HEALTH MATRIX 261 (2008).Google Scholar
  12. 52.
    Laurence H. Tribe, Lawrence v Texas: The Fundamental Right That Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1935–36 (2004).Google Scholar
  13. 56.
    See Lawrence V. Texas, 539 U.S. 558, 573, 578 (2003). With death control, which is a matter of human dignity, “persons become puppets.” Joseph Fletcher, Four Indicators of Humanhood—The Enquiry Matures, 4 HASTINGS CENTER RPT. 7 (1974). See generally RAPHAEL COHEN-ALMAGOR, THE RIGHT TO DIE WITH DIGNITY (2001); Roger F. Friedman, It’s My Body and I’ll Die if 1 Want To: A Property-Based Argument in Support of Assisted Suicide, 12 J. CONTEMP. HEALTH L. & POI;Y 183 (1995).Google Scholar
  14. 58.
    THOMASMA, supra Ch. 1, note 70 at 195. See George P. Smith, II, Managing Death: End of Life Charades and Decisions, Ch. 6 in Aging Decisions at the End of Life (David N. Weisstub et al., eds. 2001).CrossRefGoogle Scholar
  15. 67.
    See generally George P. Smith, II, MONOGRAPH, Euthanasia, Suicide or Self-Determination—Ethical, Legal and Philosophical Concerns (1999).Google Scholar
  16. 70.
    Smith, All’s Well That Ends Well, supra Ch. 2, note 34. Finding a moral similarity between physician-assisted suicide and active euthanasia, it has been argued that fairness requires that if physician-assisted death is recognized legally, recognition must also be given to a variant of active euthanasia which allows a patient—unable physically to commit physician-assisted death or wishing to end his life by lethal injection but unable to self administer—to rely upon, legally, an attending physician to act accordingly to end his suffering. Nicholas Dixon, On The Difference between Physician-Assisted Suicide and Active Euthanasia 28 HASTINGS CENTER RPT. 25 (1998). See Len Doyal, supra Ch 2, note 24 arguing that autonomy should be de-emphasized as the operative principle in decisionmaking and, instead, a standard of common dignity, mercy or best interests of the dying should be controlling. Accordingly, since competent patients suffering from a terminal illness can choose to refuse treatment, why “should it not be possible for clinicians, in partnership with families, to make similar decisions on behalf of those who cannot competently choose for themselves.” Id. THOMASMA and GRABER stress the notion that there should be a communitarian or societal obligation to relieve pain and suffering which exceeds the individual right to forego such. Supra note 2 at 193.Google Scholar

Copyright information

© George P. Smith 2013

Authors and Affiliations

  • George P. SmithII
    • 1
  1. 1.The Catholic University of AmericaUSA

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