"They want me dead": active killing - an option in modern health care decision making.

• Author: Millard, Rebekah C.

INTRODUCTION

"Thousands of medical ethicists and bioethicists, as they are called, professionally guide the unthinkable on its passage through the debatable on its way to becoming the justifiable until it is finally established as the unexceptional." (1)

According to the published statements of British medical practitioners in June of 2012, more than 100,000 patients each year are put on a "death pathway" protocol by their doctors, thereby hastening their deaths. (2) The death pathway is invoked for a variety of reasons, including the difficulty of the treatment involved, or to free up additional beds in overcrowded health care facilities. The protocol can include withdrawal of treatment--including water and nourishment--and usually results in death within thirty-three hours. Observers were not slow to equate the use of this protocol to euthanasia, which although legal in some jurisdictions, (3) remains illegal in the United Kingdom. (4)

Although the death pathway protocol occurs under a system of nationalized health care, this shocking revelation serves as a reminder of a deadly threat facing those who are most vulnerable--namely, the elderly, sick, and disabled. Cases in the United States demonstrate that similar practices that hasten death are widely accepted, albeit not as a result of an official government protocol, and affirmative legal steps may be necessary to protect a life threatened by such practices. This hastening of death, while distinguishable in social consciousness from actions generally considered to constitute homicide, will be referred to as "active killing." (5)

Modern healthcare has embraced practices leading to letting people die and even helping people die in certain circumstances. The medical, ethical, and legal issues involved with these life and death decisions should be reexamined. Such a re-examination must consider the legal landscape that enables these practices and the cultural forces that encourage them. Accordingly, Part I explores the underlying theories that propel these practices. Part II discusses the public policies that either protect or advance active killing in practice. Lastly, Part III lays out practical responses available when facing a threat of active killing. While all citizens have a direct interest in preserving life and promoting justice for those who cannot speak for themselves, this Article specifically focuses on the essential role of the attorney and the legal system in the defense of life.

1. THE THEORY

   Undergirding Western law is a morality that holds killing the innocent to be unequivocally wrong. This is the principle that humans are equal in value by virtue of their very humanness. This has been called the "sanctity of life ethic," (6) and is akin to the "equality of human life" ethic. This affirmation of the value of the individual underlies much of American social policy, (7) and the nation's law traces this principle to its founding documents. The Declaration of Independence proclaimed the self-evident truth that "all men are created equal," endowed with "life," among other inalienable rights. (8)

   Rebekah C. Millard, Life Legal Defense Foundation ([dagger])

   ([dagger]) J.D. Oakbrook College of Law and Government Policy, 2008; staff counsel for the Life Legal Defense Foundation, a non-profit, public interest law firm with the mission of giving innocent and helpless human beings of any age a trained and committed defense against the threat of death and to support their advocates in the nation's courtrooms. Many thanks to Ave Maria School of Law student Joan Hetzler for her research assistance, and to my colleagues at Life Legal for their input, help, and encouragement.

   Principles of individual equality are further enshrined in the Constitution. (9) Extending its reach beyond the law, this principle has been called the "keystone of Western medicine," (10) providing the moral impetus for physicians as healers and helpers of the human family.

   It is at this intersection of morality and medicine that this traditional ethical principal is being eroded, leaving some observers to predict its eventual abandonment. (11) Acceptance of an alternative ethic in modern medical practice has led, by degrees, to a serious threat of unnaturally hastened death for the elderly, seriously ill, and disabled. Examples abound of these vulnerable individuals being dispatched into the next life without their consent, (12) and cases arise involving loved ones fighting to achieve continued treatment for disabled patients. (13) The erosion of the traditional ethic that recognizes the value of all human life has many causes, including perceived social burdens and needs, but one of the greatest is the belief that cognitive ability and quality of life--at least a sense of self-awareness-should be elevated above the right to live itself. (14)

   The loss of the sanctity of human life ethic has coincided with the acceptance of other ethical principles and the adoption of the "futile care theory." Futile care, as defined by medical texts, is care that in medical judgment "will not have a reasonable chance of benefiting [the] patient." (15) Thus, if a particular treatment will not, in best medical judgment, benefit the patient, the physician has no obligation to administer it. (16) However, as the sanctity of human life ethic erodes, a new, more dangerous, ethic arises that not only views some treatments as futile, but also views some patients as futile--as worthless and therefore unworthy--of further existence. If something more than merely being human is required for a human life to have value, such as possessing an undefined level of cognitive ability, sustaining the life of a cognitively damaged individual may be viewed as an act of futility. Thus a medically effective treatment would be considered futile when a patient's life is viewed as futile. Such a result goes beyond patient choice or the rejection of unwanted medical treatment; it leads to the health care provider's refusal to provide wanted care and life-sustaining treatment, such as foods and fluids, precisely because that treatment would be effective in prolonging life.

   1. Societal Acceptance

      Historically, state laws regarding the withdrawal of nutrition and hydration were grounded in the common law theory of battery and the concept of informed consent--the right to refuse medical treatment. (17) Less than fifty years ago, providing food and fluids through a feeding tube was considered standard humane care. (18) Through a gradual process of elimination, this type of care has been redefined to mean "medical treatment." This is the result of a deliberate campaign that has followed an identifiable trajectory. It began with the rejection, at least in some academic circles, of the traditional ethic that all human life is of equal worth. A new field emerged, bioethics, in which philosophers--bioethicists--worried about the cost of caring for the dependent and elderly within an increasingly aging society. (19) Many factors contributed to a widespread rejection of the traditional ethic, such as the cultural upheaval combined with technological advances of the past fifty years. (20)

      As the traditional ethic continued to erode, factors such as autonomy, quality of life, cost, and convenience tended to predominate decisionmaking. Finding a way to hasten death became a solution to these shortfalls. Values such as privacy and autonomy became driving forces in medical ethics. (21) Arguments for, and suggestions regarding, hastening death were originally made within a framework of supposedly strict medical guidelines--which largely control medical treatment options. (22)

      Following the promulgation of the academic theories, a campaign commenced to test the theories in court and, if necessary, to stretch the bounds of the law. Convincing the courts proved to be an achievable goal. The courts accepted that the ethical issues had been carefully worked out, and that the power to remove sustenance would be exercised within the strictest guidelines. (23) However, legally, there had already been a rejection of the ethical principal of the equality of human life regarding certain members of the human family through the legalization of abortion. (24)

      Today, the impetus for limiting care has never been stronger. Spiraling healthcare costs have led to measures aimed at curbing costs and providing more people with insurance coverage, such as the Patient Protection and Affordable Care Act (popularly dubbed "Obamacare"). (25) As cost-saving elements of this law are implemented, additional pressure may be brought to bear in favor of terminating treatment for a broader range of individuals. (26) Interestingly, the increasing acceptance of early termination of life-sustaining treatment has not led to a corresponding decrease in nation-wide health care costs. (27) Studies indicate that the actual cost savings of replacing curative treatment until death with a palliative model appear to be small when compared to national health care expenditure. (28) In a discussion of the economics associated with care at the end of life, Michael Ash and Stephen Arons estimated that a very small percentage of total national health care expenditure might be saved by a less-aggressive treatment paradigm:

      3.3% of total national health care expenditure might be saved by a conversion away from aggressive curative treatment, [but] ... the growth rate of health care expenditure would be unaffected. Furthermore, end-of-life care has not been a site of disproportionate growth of health care expenditure, so changes only to this component of health care cannot reduce the rapid growth that has been the focus of cost-control efforts. (29) Thus, the pressure to decrease national health care costs by forgoing care appears to be ill-founded when considering the actual monetary benefits this strategy has achieved, not to mention the danger it presents disabled individuals. As...