The inability to swallow as a fatal pathology: comments on the McHugh/O'Rourke correspondence and the removal of life-sustaining treatment.

• Author: Vaccari, Michael A.
• Position: Bishop James McHugh, Father Kevin O'Rourke

In September 1989, Bishop James McHugh circulated to all priests in the New Jersey Diocese of Camden a position paper concerning the provision of artificial hydration and nutrition (AHN). (1) In his paper, Bishop McHugh concludes, inter alia, that the provision of AHN to a nondying patient in a permanently unconscious or persistent vegetative state (PVS) is not useless and generally is not unduly burdensome. Futher, he concludes that a PVS patient who dies after the withdrawal of AHN dies from dehydration and starvation. In the course of reaching his conclusions, Bishop McHugh considers and rejects certain arguments proposed by Fr. Kevin O'Rourke.

Fr. O'Rourke responded the following month. (2) In his response, Fr. O'Rourke maintains that the proper approach to analyzing questions relating to the provision of AHN to a PVS patient is to determine whether the patient has a fatal pathology. He concludes that the provision of AHN to such patients is always morally optional because AHN is always ineffective treatment in such circumstances in that it does not restore the patient's ability to pursue the spiritual purpose of life. Fr. O'Rourke concludes further that a PVS patient who dies after the withdrawal of AHN dies from the underlying fatal pathology of the inability to chew and swallow. (3)

An analysis of the ethical implications of a decision to forgo life-sustaining treatment revolves around whether such a decision reflects an intention to choose death or an intention to decline burdensome or ineffective treatment. The question of whether the removal of AHN introduces a new cause of death is important only in so far as it serves to elucidate this more fundamental question. Fr. O'Rourke's arguments present several challenges to Bishop McHugh's analysis of this fundamental issue concerning treatment decisions.

In this article, after summarizing the correspondence between Bishop McHugh and Fr. O'Rourke and after providing definitions of certain key terms, I focus on one of the major implications of this challenge, namely, Fr. O'Rourke's notion of fatal pathology. I conclude that his methodology offers an inadequate analytical framework for the resolution of treatment decisions because it focuses the analysis on factors unrelated to the effectiveness or burdensomeness of treatment. As such, his approach fails to resolve the moral question of whether a patient's decision to forgo life-sustaining treatment reflects an intent to choose death or an intent to decline burdensome or ineffective treatment. In the course of this discussion, I consider the relationship between whether a PVS patient's condition is terminal and the influence that fact has on the assessment of whether a particular treatment is effective or burdensome.

Summary of Correspondence

In Bishop McHugh's September 21, 1989, letter he sets forth certain moral principles applicable to the care of "the permanently unconscious but not-dying patient." (4) Bishop McHugh describes the condition of the nondying PVS patient and notes that the brain of such a patient is not progressively deteriorating and that such a patient is not dying from some other pathology. In order to provide a framework for analysis, Bishop McHugh reviews several basic moral principles concerning the value of human life, the person's relationship with God, the immorality of intending the death of an innocent person, and the principle of ordinary/extraordinary means or the benefit/burden analysis.

Bishop McHugh then summarizes Fr. O'Rourke's position and finds it unconvincing. He sees a more convincing approach in the view of those who hold that AHN are "not primarily forms of therapeutic medical treatment . . . [r]ather, they are basic means of sustaining life without which anyone will die." Thus, AHN "should be provided as part of a patient's normal care . . . ." The withholding of AHN "does not simply allow the patient to die from some existing pathology, but introduces a new cause of death, that is, starvation and dehydration." Bishop McHugh concludes that this "does not seem morally justifiable in light of the Church's teaching on euthanasia." Bishop McHugh then applies these principles to four specific cases as follows: in cases of imminently dying patients, unconscious or conscious, AHN is morally optional; in cases of nondying patients, unconscious or conscious, AHN is generally morally obligatory. (5)

In his response, Fr. O'Rourke argues that a PVS patient is permanently incapable of pursuing the spiritual purpose of life. Since the goal of health care is "to help people pursue the spiritual purpose of life," the provision of treatment to a PVS patient is ineffective.

Fr. O'Rouke argues that questions regarding the provision of AHN should be evaluated in the same manner as questions regarding the provision of any other form of life support. Fr. O'Rouke cites the McAfee case, in which the Atlanta Archdiocese supported the petition of Mr. McAfee to be removed from a ventilator, and suggests that the archdiocese's position would have been the same if the petition sougth the discontinuation of AHN. The removal of life support does not introduce a new cause of death when a fatal pathology exists. In Fr. O'Rouke's view, Bishop McHugh's premise that a PVS patient is a nondying patient is inaccurate. Rather, a PVS patient suffers from a fatal pathology, namely, "the inability to swallow as a result of brain damage." (6)

The letters of Bishop McHugh and Fr. O'Rourke are short, and the authors do not attempt to present a detailed analysis of their respective positions in the letters. The views of these authors are considered more fully below. Prior to a discussion of such views, however, a review of terminology is necessary.

Definition of Certain Terms

The literature on the morality of death and dying is extensive, and certain crucial terms used by participants in the debate have not received universally accepted usage. Since the meaning given to these terms is critical to an understanding of the analysis, a definition of their usage in this article follows.

A crucial element of Fr. O'Rourke's analysis is his definition of fatal pathology. He defines a fatal pathology as "an illness, disease, or lesion which will cause death unless it is removed or circumvented." (7) Under this definition, a fatal pathology includes any illness that, if left untreated, will lead to death, whether or not a cure for the illness exists or the illness is treatable. Fr. O'Rourke contrasts this definition of fatal pathology with the more common understanding of the term, namely, an illness or disease for which no cure or treatment exists. (8)

The word terminal will be used herein to refer to a patient with an illness that will cause the death of the patient in a relatively short period of time with or without treatment. The terms illness, disease, and condition will be used interchangeably. The word forgo, when used with respect to treatment, will mean a decision either not to start a particular treatment or to discontinue a treatment at any point after it has been started. References herein to decisions by a patient apply to decisions made by or on behalf of the patient. The word treatment will refer to medical treatments and routine nursing care. (9)

The term PVS or PVS patient will no longer be used. In its place, I will use the term of DPU or DPU patient, which stands for "diagnosed as permanently unconscious." (10) I employ this acronym for two reasons. First, to describe a human being in terms of a...