Getting down to cases.

• Author: Scofield, Giles R.
• Position: Symposium: Current Controversies in the Right to Live, the Right to Die

Moral reasoning in clinical decisionmaking does not consist of drawing formal deductions from invariable abstract principles. It requires discerning judgment that weighs the uncertainties, complexities, and probabilities that the facts of a case present and determines how what is known about the case defines the principled basis for resolving whatever questions arise. (1) Reasoning must take account of reality.

No set of rules or unified theory can satisfy the demands presented by the facts of a given case, and the unreflecting invocation of a particular principle or a preordained solution can only deadlock any progress in moral theory and real life. Given our constitutional commitment to protect life and liberty, reconciling those values to the realities and uncertainties of human existence is the only way to sustain our way of life (2) and to avoid the tyranny of principles that can make life not worth living.

This case demonstrates the inadequcy of reasoning from the theoretical language of rights without strict regard for the facts of the case. It attempts to pit the "right to life" against the "right to liberty" (some would say the "right to die") in the belief that these are irreconcilable, in a situation that may not even warrant the assumption that a genuine controversy exists. It is only when we determine that the facts preclude a choice that upholds both of these rights that we must delve further into the case to determine which facts provide a principled basis for resolving this conflict in a way that gives due respect to each.

Based on my review of the facts, my primary conclusion is that the cause presents no real conflict and, accordingly, no justiciable controversy. If additional information establishes that there is a genuine dilemma concerning the consequences of withdrawing Mr. Stevens's feeding tube, I address the factors that need to be considered in order to reach a decision on that question.

The Case

Mr. Stevens is the victim of an accident that has severely and irreparably injured him. We do not know any details regarding the actual trauma he suffered or whether, and if so what, heroic measures were administered at the accident scene in order to save his life. These facts, as well as a more complete, detailed medical history, would help us place his current situation in a broader context. We would want to know where Mr. Stevens was treated prior to his discharge, e.g., in a head trauma or rehabilitation center, his course of treatment, and the reasons for his discharge. Based on what is presented, I assume that his current condition results from the irreversible effects of anoxia at the time of the accident. Despite the best efforts to restore Mr. Stevens's lost cognitive functioning, it is undisputed that his condition will never improve. He is totally disabled and is permanently dependent on the staff for all of his maintenance.

Absent medical opinion to the contrary, there is no reason to doubt the diagnosis or prognosis rendered by the physicians, although the court should inquire into the thoroughness and accuracy of the tests employed by the doctors in reaching their conclusion and examine the medical record to evaluate how his current condition compares with his course of stay. The court should seek further information about the nurses' belief that Mr. Stevens appears to act responsively and volitionally, visiting the patient to observe the behavior that the nurses and Mr. Stevens's eldest daughter attribute to some form of interaction. (3) It is not uncommon to mistake reflexive for volitional action, and we must avoid seeing what is not really there. We would need to know whether such behavior actually occurs and relate what they observe to his condition. Board certified neurologists experienced in the diagnosis and treatment of permanently unconscious patients are best equipped to explain the significance of the patient's movements. No current fact, however, warrants doubting the conclusion that Mr. Stevens will, in all probability, never recover or that he is permanently and irreversibly unconscious.

There is no evidence that Mr. Stevens currently receives or ever has undergone any form of rehabilitative treatment, which lends further weight to the conclusion that his condition is irreversible. Presumably a rehabilitation assessment concluded that he had no rehabilitative potential. The treatment he is receiving is supportive in nature because even the feeding tube serves no curative or restorative purpose. Moreover, this feeding is not a temporary measure; it is a permanently indwelling device, which may be removed if Mr. Stevens is safely able to eat and swallow or it is determined that its continuation is no longer justified or warranted. Its purpose differs from that of the tube he had previously consented to, which was intended as a temporary measure pending his recuperation from surgery. This fact bears significantly on the relation between that prior consent and the decision about the tube in this case. Of added significance is the fact that Mr. Stevens has evidently never been in a position to consent to any of the care or treatment he is currently receiving. Presumably, treatment of commenced under emergency conditions, in which consent is presumed, and all subsequent treatment has proceeded on the basis of his wife's consent.

A particularly troubling aspect of the clinical picture concerns the indications for initiation of artificial alimentation, the evidence concerning Mr. Stevens's current ability, if any, to eat and swallow, and the reasons why he has lost that ability, if indeed he has. Mr. Stevens has been on the feeding tube for twenty-one months. Prior to that time he was fed orally. This feeding was "difficult," but the precise nature of the difficulty is unknown. Nor do we know what expectations surrounded the decision to proceed with artificial alimentation, i.e., whether it was thought that this would support Mr. Stevens during a hoped-for recovery. Also unknown is why family members and friends joined the nursing home staff in feeding Mr. Stevens. It is certainly proper and desirable for family and friends to feed a patient, and I hope that is what prompted their participation in this aspect of his care. It would be disturbing, however, if the family and friends had to feed Mr. Stevens because the nursing home lacked professionally trained staff, the staff lacked the time to provide this service, or there were inadequate funds to compensate for such services. (4) Because these facts are relevant to the decision this case presents, let me elaborate briefly on their significance.

Skilled nursing facilities are required to have rehabilitative services available. Such services are intended to promote independence in daily activities, thereby enhancing the patient's quality of life and limiting the instances of unwarranted dependence on technology. As part of his plan of care, upon admission to this facility Mr. Stevens would have undergone an assessment of his residual functioning. At the time the decision to insert the feeding tube was made, an assessment of his ability to eat and swallow was also required. These reports would reveal what prompted the recommendation that a gastrostomy tube be inserted. We know nothing about these assessments or even whether they occurred.

Nor do we know whether Mr. Stevens can now eat without the feeding tube. The assumption that he will die if it is removed is what has prompted the controversy and concern about the wife's request. These may be totally unfounded. Before treating this decision like a federal case, we need to know whether it is in fact such a case. Because it is possible that Mr. Stevens cannot eat or...