A Legacy for Jahi McMath

As a mother who has lost two beloved daughters, my heart goes out to Jahi McMath’s  mother Nailah Winkfield after the recent loss of her daughter after an almost 5 year battle to save her and have California rescind her death certificate after doctors concluded that Jahi was “brain dead”.

Jahi McMath was only 13 years old when she suffered complications after what was supposed to be a routine tonsillectomy and was declared “brain dead”. But instead of just accepting the diagnosis, her mother insisted that Jahi continue to be treated with a ventilator and have a feeding tube in the hope that she could improve.

The California hospital refused and a death certificate was issued for Jahi. The case made national news with influential ethicists like Arthur Caplan, PhD stating about Jahi that “You can’t really feed a corpse” and “She is going to start to decompose.” Other experts like Dr. Alan Shewmon disagreed.

Jahi’s mother went to court but a judge declared that Jahi met California’s criteria for brain death and that the hospital could remove Jahi’s  ventilator. However, the judge stayed the order for awhile so Jahi’s mother could appeal.

Instead and with the help of lawyers and The Terri Schiavo Life & Hope Network ,  Jahi’s mother was able to get her daughter transferred to New Jersey, a state that allows a religious exemption for determining death solely on the basis of the stopping of breathing and heartbeat instead of “brain death”.

After the transfer, Jahi’s  family released videos showing that not only did Jahi’s  body not deteriorate but also that Jahi seemed to be improving and moving her toes.

Sadly, Jahi unexpectedly died June 22, 2018 from excessive bleeding and liver failure after an operation for an intestinal problem. Jahi’s mother says she does not regret the years-long efforts to save her daughter and maintains that Jahi was able to communicate with me with her hands,” “Sometimes her feet, sometimes her head, but we spoke with her hands.”

A SURPRISING DEVELOPMENT

On April 11, 2018 and before Jahi died, the Harvard Medical School held a conference on “Brain Death and the Controversial Case of Jahi McMath”.

The results of this conference were released just days after Jahi’s  death and, according to The Mercury News, said that:

” Jahi McMath’s  brain showed subtle signs of improvement over the five-year span following the original declaration that she was brain-dead — suggesting a legal ‘resurrection’ from death to life and challenging our widely held understanding of what it means to be officially dead.” (Emphasis added)

And also that Jahi:

continued to grow, developed breasts, had menstrual cycles, digested food, excreted waste, fought off infections, healed wounds and seemed to respond to basic commands, according to medical testimony provided at a conference about the case.” (Emphasis added)

Dr. Robert Truog, the director of the Harvard Center for Bioethics who organized the conference, has long maintained that the legal definition of brain death as the “irreversible cessation of all functions of the entire brain, including the brain stem” was a  “legal fiction”.

But in a July 2, 2018 Mercury News article “Jahi McMath improved after she was declared brain-dead, doctors say”, Dr. Truog also said that “brain death” does not necessarily signify biological death but merely the extreme end of the spectrum of brain injury and that:

Even if (“brain dead”) patients are not biologically dead, their profound neurological impairment means that, for legal purposes, they can be treated as if they are dead.” (Emphasis added)

In the meantime, Jahi McMath now has two death certificates- one in California and one in New Jersey-and her family has a malpractice lawsuit against the original hospital.

CONCLUSION

Jahi McMath leaves behind many who mourn her but also the achievement of bringing public attention to the problems with the “brain death” diagnosis.

Unfortunately, as one new bioethicist wrote in a blog “Redefining Death in the Law” after attending the Harvard conference, with the legal concept of “brain death” undermined, death itself may be reduced to merely a personal choice:

“In the absence of a true biological or moral basis for the current conception of brain death, the law ought to reflect that death is largely a values judgement. Individuals should be allowed to state a preference during advanced care planning as to which definition of death most closely aligns with their personal beliefs. Religious accommodations are a step in this direction, but a more respectful and coherent law would give everyone a choice in defining their own death.” (Emphasis added)

Instead, I would submit that what we really should be doing is giving every brain-injured patient time, treatment and a chance to recover as fully as possible.

Now that would be a great legacy for Jahi McMath!

 

 

Alfie Evans and the Shocking UK Gosport Independent Panel Report

The Baby Alfie Evans’s case this year shocked the world but now we learn his forced death against his parents’ wishes follows a legal and healthcare nightmare in the UK.

Some of us expressed concerns years ago about the UK’s “Liverpool Care Pathway” developed in the 1990s to improve care of the dying by applying “the high standard of palliative care prevalent in hospices to other clinical settings”.  But the “Liverpool Care Pathway” went horribly wrong and in 2009, the UK Daily Mail published an article “Euthanasia by the back door: Hospitals ‘death pathway’ is open to error” with cases of non-dying patients considered “not worth saving” who died from the “combination of dehydration and powerful painkillers”, explaining that:

“Under the Liverpool Care Pathway, doctors can withdraw fluids and drugs from patients if they are deemed close to death. Many are then put on continuous sedation so they die free of pain.

But sedation can often mask signs of improvement, meaning doctors may be closing the door on people who would otherwise live for months.”

In 2013, the British Journal of General Practice published “The Liverpool Care Pathway for the dying: what went wrong?” . The authors acknowledged the problems that led an independent review to call for an end to the Liverpool Care Pathway but concluded that:

“(a)vacuum left by the abolition of the LCP makes a return to the ‘bad old days’ of poor or non-existent communication about dying a real possibility: we would argue that the response to poor use should be right use, not non-use” and  called for “increased funding and training in palliative care and suggest that skills in end-of-life care should become a required competency for all health care professionals.” (Emphasis added)

THE GOSPORT INDEPENDENT PANEL REPORT

More details of this scandal have just now surfaced in a report on the Gosport War Memorial Hospital  where patients were often admitted for rehabilitation or respite care. The report concludes that at least 450 patients had their lives “shortened” by denial of food and water along with powerful painkillers between 1989 and 2000. It details cases and concerns and ultimately acknowledges the families’ years-long pleas for the truth. Here is one excerpt:

“Those (nurses) who raise concerns about the conduct and practice of colleagues are now widely known as ‘whistle-blowers’. To put it into context, it is generally agreed that the NHS (National Health Service) has not been good at protecting people who take such a difficult step; as the documents make clear, the events of 1991 were no exception. Nor should the consequences for whistle-blowers be underestimated: these commonly included disciplinary action and undermining of professional credibility.

“The documents show that, following a complaint to the Trust in 1998 and the police investigation, it should have become clear to local NHS organisations that there was a serious problem with services at the hospital. Although the successive police investigations undoubtedly complicated the NHS response, it is nevertheless remarkable that at no stage was there a public admission of failure or any public apology. Nor was there a proportionate clinical investigation into what had happened. On the contrary, the documents show numerous instances of defensiveness and denial – to families, to the public and the media, and to health service and other organisations.” (Emphasis added)

CONCLUSION

Will charges now be brought against those involved in the Gosport War Memorial Hospital euthanasia deaths? Who knows? The Independent Panel only concluded that:

“With this Report and an online archive of documentation, the Panel has completed its Terms of Reference. The Panel now calls upon the Secretary of State for Health and Social Care and the relevant investigative authorities to recognise the significance of what is revealed by the documentation in this Report and to act accordingly.

But just as important is the question “Has health care now improved?”

Unfortunately, the answer may be no.

As the UK Telegraph reported in 2015 in the article “New NHS (National Health Service) death guidelines ‘worse than Liverpool Care Pathway’”, the Liverpool Care Pathway was supposedly phased out in 2014 in favor of the National Institute of Health and Care Excellence (NICE) guidelines. but families were still reporting poor end of life care, including denial of food and water.

And now, unlike that Liverpool Care Pathway horrors that were hidden for so long, we had the very public case of Baby Alfie Evans this year where courts enforced the doctors’ decision to shorten his life by removing his ventilator, refused his family’s requests to transfer him or take him home and even take away his feedings when he continued to breathe for days after the ventilator was removed.

Apparently, the death culture is apparently very hard to kill in the UK and, as we are finding, also in the US.

From “Choice” To “No Choice”-Lessons from the Baby Alfie Evans Case

Defending the UK High Court’s order allowing Alder Hay Children’s Hospital to withdraw life support from Baby Alfie Evans and refusing to even allow his parents to take him home, Dr. Ranj Singh of the UK National Health Service was quoted: “This is not the killing of a child – this is redirecting care to make them more comfortable.

Although this callous statement suggests an economic motive, I believe the real problem is a fundamental shift in legal and medical ethics that started in the US in 1976 with the Karen Quinlan case.

Karen was a 21 year old woman whose parents wanted to remove her ventilator after she did not wake up after losing consciousness after a party. The doctors disagreed but the California Supreme Court upheld parents’ decision by stating:

“No compelling interest of the state could compel Karen to endure the unendurable, only to vegetate a few measurable months with no realistic possibility of returning to any semblance of cognitive or sapient state,” then-Chief Justice Richard Hughes wrote. (Emphasis added)

Ironically, Karen did not stop breathing and lived 9 more years with a feeding tube and basic care. But Karen’s case set the stage for the so-called “right to die” movement, “living wills” with removal of feedings and eventually the current assisted suicide/euthanasia movement.

Unfortunately, Baby Alfie and his parents are just the latest casualties of an emerging legal/medical/popular mindset that some people are better off dead. To make matters worse, Baby Alfie’s case-like the similar Baby Charlie Gard case  in the UK last year-are perhaps intended to become examples to discourage other parents (or families) from challenging doctors, hospitals and courts on mandatory withdrawal of treatment decisions.

WHAT HAPPENED TO BABY ALFIE AND COULD THIS HAPPEN HERE IN THE US?

Baby Alfie Evans was born in the UK on May 9, 2016 and apparently healthy. His parents became concerned when he missed the developmental milestones that most babies achieve in their first 7 months and started making “jerking, seizure-life movements”.

In December 2016, he caught a chest infection that caused seizures and was placed on a ventilator at Alder Hey Children’s Hospital. Despite the doctors’ dire predictions, Alfie started breathing on his own but caught another chest infection and seizures and went back on a ventilator.

Without having a definitive diagnosis after a year and Baby Alfie in what his doctors called a “semi-vegetative” state, the hospital and doctors wanted to remove his ventilator but Alfie’s parents fought back.

The hospital took the case to the British High Court, stating that “further treatment” for Alfie was “not in his best interests” as well as “unkind and inhumane”.

After many failed court appeals by the parents and even help from Pope Francis and an Italian hospital ready to take the baby, the hospital remained intractable and Alfie was not even allowed to go home with his parents. The ventilator was removed but, contrary to the doctors’ predictions, Alfie continued to breathe on his own for five more days before finally dying.

I watched the tragedy of Baby Alfie from afar with a lot of alarm as well as personal sadness.

I first became aware of medical discrimination against babies with mental disabilities in 1982 with the Baby Doe case. Baby Doe was born with Down Syndrome and a correctable congenital defect in his throat that makes eating food orally impossible but his parents refused surgery on the advice of the obstetrician but against the recommendations of two other doctors who advised immediate surgery. The case went to court but the judge ruled in favor of his parents. The parents also refused all offers of adoption. Baby Doe died from starvation and dehydration while lawyers were still appealing his case. Tragically, Baby Doe did not even receive simple intravenous fluids to keep him alive until his appeals were finished. Many of us who spoke out about Baby Doe’s right to treatment were accused of being “mean” to his parents.

When my daughter Karen was born just after Baby Doe died and also with Down Syndrome as well as a treatable heart defect, I was offered the “choice” of refusing heart surgery for her and “letting” her die. However, even after I insisted on the surgery, I found out that one doctor made her a Do Not Resuscitate behind my back and I was told by others-even other health care professionals like myself-things like “People like you shouldn’t be saddled with a child like that!”

I became so fearful that at one point I slept on the floor under my daughter’s crib during an overnight hospitalization for a test.

It was devastating when Karen died from sudden complications of pneumonia at 5 ½ months but I will never regret fighting for her right to be treated the same as other children with her heart defect.

With Baby Simon Crosier who was born with Trisomy 18 and a heart defect in 2010, his parents begged for help when Simon started deteriorating without knowing that the hospital had made their baby a Do Not Resuscitate and was being given only “comfort feeds” due to a secret futility policy. They had to helplessly watch as Simon died in their arms. The later Simon’s Law bill they helped write to prevent other outrageous secret futility guidelines in hospitals continues to sit in a Missouri legislative committee but hopefully it will get to the House floor this session. (Simon’s Law was passed in Kansas in 2017.)

PARENTAL DECISION-MAKING

The usual standard for parental decision-making in the US has been:

“Medical caretakers have an ethical and legal duty to advocate for the best interests of the child when parental decisions are potentially dangerous to the child’s health, imprudent, neglectful, or abusive. As a general rule, medical caretakers and others should challenge parental decisions when those decisions place the child at significant risk of serious harm. ” (Emphasis added)

But, after Baby Doe starved to death, medical groups fought the proposed Baby Doe Regulations intended to protect such children with disabilities as too restrictive. For example, the American Medical Association endorsed the quality of life standard prior to the Baby Doe case :

“In the making of decisions for the treatment of seriously deformed newborns or persons who are severely deteriorated victims of injury, illness, or advanced age, quality of life is a factor to be considered in determining what is best for the individual.

In caring for defective infants the advice and judgment of the physician should be readily available, but the decision as to whether to treat a severely defective infant and exert maximal efforts to sustain life should be the choice of the parents.” (Emphasis added)

But at a pediatric ethics conference in 1994, I was shocked by a workshop where the  focus was on how to convince parents to refuse or withdraw treatment from seriously disabled or dying children. One speaker/lawyer was even applauded when he suggested that parents who refused to withdraw treatment like feeding tubes from their “vegetative” children were being “cruel” and even “abusive” by not “allowing” their children to die. He also said that judges would be most likely to side with the doctors and/or ethics committee if such cases went to court.

Over the years and unknown to most of the public, many ethicists still refuse to concede this “choice” of a right to continue treatment and instead have developed a new theory that doctors cannot be forced to provide “inappropriate” or “futile” care to patients of any age. This theory evolved into “futile care” policies at hospitals in Houston, Des Moines, California and other areas. Even Catholic hospitals have been involved.

And now, as Baby Simon’s parents and I have unfortunately found, such decisions are sometimes made without even notifying us. This must change with not only legislation like Simon’s Law but also a change of attitude towards these little ones.

CONCLUSION

While there are situations where a family or patient might unreasonably demand truly medically futile or unduly burdensome treatment, the decision to deliberately end the life of a person because he or she is deemed to have little or no “quality of life” should never be made.

The terrible ordeal that Baby Alfie and his parents went through sparked tremendous outrage around the world, especially the callous treatment of his obviously loving parents.

This was inhuman, not “humane” and we must continue the fight to demand truly ethical, caring and nondiscriminatory healthcare, especially for the youngest among us.

 

Futility Policies and the Duty to Die (updated)

I am on the road this week speaking to groups and doing radio interviews. So here is an article published in Voices magazine (a Catholic women’s’ magazine) in 2003 with an update in 2005.  In the intervening years, the problems have grown worse but I originally wrote this article when almost no one had heard of futility policies. Here is the article.

When I first saw “Jack” last September (2002), he was lying unconscious in an ICU with a ventilator to help him breathe. It had been two weeks since a truck struck the 60 year-old and his injuries were devastating — including broken bones, blunt-force trauma and a severe head injury.

When Jack’s family contacted me about seeing him, they were desperate. The doctors told them that he would never come out of the coma and the issue of withdrawal of treatment was raised. The wife refused.

I could make no guarantees but I gave Jack’s wife a pamphlet on coma stimulation and began visiting Jack weekly.

As an ICU nurse myself, I could see that some of the staff felt that taking care of Jack was a waste of time. So I was not surprised when the family was soon told that nothing more could be done. But it was shocking when the hospital told the family that Jack’s ventilator was going to be removed regardless of their wishes. The family was given a deadline to find another health facility to take him.

By that time, Jack was opening his eyes and his family thought he could squeeze their hands at times. The medical and nursing staff assured them that this was just a “reflex”.

After some frantic phone calls, Jack was transferred to a long care facility that took patients on ventilators. Soon after the transfer, his condition became critical again and the family insisted he be treated. Jack was transferred to a hospital ICU. When the staff found out I was a nurse, some of them asked me what the family’s rationale was for continuing treatment. It was obvious that they too felt Jack was a hopeless case.

But over time, Jack improved and was finally able to breathe on his own without a ventilator so he was transferred to a regular hospital bed. Eventually it became evident to all that Jack was starting to respond to commands but it took pressure to get rehab services for him.

Just before Thanksgiving — a little more than two months after his accident — Jack became fully awake. He is now in a rehabilitation facility near his home in Illinois where the staff is working to strengthen his arms and legs, which were broken in the accident. Now, no one meeting him would ever guess that he had had a brain injury.

Even doctors and nurses who ordinarily disdain religion often call cases like Jack’s “miracles”. Of course, for many in healthcare, it’s easier to believe in miracles than to accept that they were wrong and a life could have been unnecessarily or prematurely lost.

But while Jack’s story has a happy ending, many similar cases do not. Families often automatically accept or are even pressured into accepting a doctor’s grim prognosis for their loved one and withdraw treatment after a patient’s brain is injured by trauma or other conditions like a stroke. Usually, the patient then dies.

Unfortunately, families like Jack’s who choose to continue treatment despite a “hopeless” prognosis are increasingly being denied that choice because of “futile care” policies being adopted in many hospitals throughout the country.

And such “futile care” principles have so permeated much of medicine today that there are even cases of elderly or terminally ill patients expected to have months of life remaining whose doctors didn’t want to prescribe medications such as antibiotics because the person was going to die sooner or later anyway.

Futile Care Policies and “Choice”
Most people assume that either they or their families will have the right to decide about medical treatment when they become seriously or critically ill. The biggest problem, people are told, is that they or their loved one will be tethered to a machine forever if they do not sign a “living will” or other health care directive. The “right to die” movement has convinced most people and medical personnel that the ability to refuse treatment is one of the most important aspects of medical care to prevent patients and families from needless suffering. Indeed, poll after poll shows that most people say they would rather die than be a “vegetable”. And many people automatically assume that they would never want their lives prolonged if they had a terminal illness, were paralyzed or senile, etc. Most people assume that refusing treatment, like assisted suicide (the other goal of the “right to die” movement), means choice and control.

But a funny thing happened on the way to this supposed “right to die” nirvana.

Some families and patients did not “get with the program” and insisted that medical treatment be continued for themselves or their loved ones despite a “hopeless” prognosis and the recommendations of doctors and/or ethicists to stop treatment. Many doctors and ethicists were appalled that their expertise would be challenged and they theorized that such families or patients were unrealistic, “in denial” about the prognosis or were mired in dysfunctional family relationships. (In contrast, families who agree to withdraw treatment are almost always referred to as “loving” and their motives are spared such scrutiny.)

At a 1994 pediatric ethics conference I attended, one participant was even applauded when he suggested that parents who refused to withdraw treatment from their “vegetative” children were being “cruel” and even “abusive” by not “allowing” their children to die. In some cases, doctors and ethicists have even gone to court to force withdrawal of treatment over a family’s objections. These ethicists and doctors were stunned when judges were often reluctant to overrule the families.

Yet over the years and unknown to most of the public, many ethicists have still refused to concede the choice of a right to live and instead have developed a new theory that doctors cannot be forced to provide “inappropriate” or “futile” care and treatment to patients deemed “hopeless”. This theory has now evolved into “futile care” policies at hospitals in Houston, Des Moines, California and many other areas. Even Catholic hospitals are now becoming involved.

In the July-August 2000 issue of the Catholic Health Association’s magazine Health Progress, Catherine M. Mikus and Reverend Peter Clark — a lawyer and an ethicist — argue that it is “time for a formalized medical futility policy” in Catholic hospitals. Like many such articles in secular ethics journals, the authors refrain from being too specific about what conditions and which patients would be subject to such a policy. The authors concede that even the American Medical Association says that medical futility is a concept that “cannot be meaningfully defined” and is a “subjective judgment” on which there is no widespread agreement.

Mikus and Clark make it clear that they are not talking about treatments that are “harmful, ineffective, or impossible”, the traditional concept of medical futility that, of course, is not ethically obligatory. For example, no doctor would honor a family’s request for a kidney transplant for a person who is imminently dying. Instead, the authors argue for a new definition of futility to overrule patients and/or families on a case-by-case basis based on the doctor’s and/or ethicist’s determination of the “patient’s best interest”. Ironically, the “right to die” movement was founded on the premise that patients and/or families are the best judges of when it is time to die. Now, however, we are being told that doctors and/or ethicists are really the best judges of when we should die. This is reminiscent of the imperious statement attributed to Henry Ford that his Model T customers could “paint it any color, so long as it’s black”. Thus the “right to die” becomes the “duty to die”, with futile care policies offering death as the only “choice”.

But despite the lack of consensus on what constitutes futile care, these Catholic authors are passionate about why such policies should be adopted and insist that their policies are “firmly rooted in the Catholic tradition”:

“Proper stewardship of these resources entails not wasting them on treatments that are futile and inappropriate. They must be rationally allocated; to waste them is ethically irresponsible and morally objectionable”. (Emphasis added)

In other words, a social justice-style argument is being made to save money.

Unfortunately, when it comes to Mikus and Clark’s opinions, not only is a sense of humility lacking but also a sense of God’s jurisdiction:

“In assessing whether a treatment is medically futile, physicians must consider carefully not only the values and goals of the patient/surrogate, but also those of the community, the institution, and society as a whole”. (Emphasis added)

This not only ignores God’s ultimate role in life and death but also turns the Hippocratic oath on its head. While the Hippocratic oath is no longer routinely used with medical students, its enduring legacy has always been the sacredness of the commitment of the doctor to his individual patient. Now, new doctors are often told that their ultimate commitment instead resides with the health and welfare of society.

It is appalling that Catholic doctors are now also being encouraged to adopt the secular and utilitarian concept of the greatest good for the greatest number rather than a spiritual commitment to each individual for whom they care. Under this new standard, Jesus the great Healer must be considered a failure for tenderly concerning Himself with healing such “little” lives during His ministry rather than constructing a more “politically correct” health system.

Where Do We Go from Here?
Just a generation ago, doctors and nurses were ethically prohibited from hastening or causing death. Family disputes and ethically gray situations occurred, but certain actions (such as withdrawing medically assisted food and water from a severely brain-injured but non-dying person) were considered illegitimate no matter who was making the decision.

But with the rise of the modern bioethics movement, life is no longer assumed to have the intrinsic value it once did, and “quality of life” has become the overriding consideration. Over time, the ethical question “what is right?” became “who decides?” — which now has devolved into “what is legally allowed?”

Thus, it is not surprising that the Health Progress article on futility policies is subtitled “Mercy Health System’s Procedures Will Help Free Its Physicians from Legal Concerns”. This is no afterthought, but rather the greatest fear of the authors that families may sue.

Doctors are understandably afraid of civil or malpractice lawsuits. In this article, Mikus and Clark attempt to convince doctors that a written futility policy — no matter how vague — is necessary. Then doctors would use the power of an ethics committee to back up their decisions in any legal proceeding in order to prove that the determination of futility meets the hospital’s standard of care.

Even more ominously, there have been efforts to incorporate futile care policy into state and federal law. For example, Senator Arlen Specter introduced the Health Care Assurance Act of 2001 that, while aimed at improving health care for children and the disabled, nevertheless contains a provision that there is no obligation:

“to require that any individual be offered, or to state that any individual may demand, medical treatment which the health care provider does not have available, or which is, under prevailing medical standards, either futile or otherwise not medically indicated”. [Emphasis added.]

The first step in solving a problem is to recognize it. We cannot always rely on a mainstream media that would rather exhaustively cover a star’s shoplifting charge than alert us to thorny ethical problems. Legislation and policies are often developed without public knowledge or comment. Health insurance can no longer be counted on to pay for all needed treatment in many situations.

This is why publications such as Voices and many other Catholic periodicals, pro-life news services and the Internet are so important, especially in the area of ethics. We in the Church are also blessed with encyclicals, Vatican documents and the writings of the doctors of the Church, which give clear principles that are still just as valid and useful as ever in a world of increasing technology and seductive decadence.

If we truly want to protect lives, save souls and fight injustice, we cannot remain silent in the face of an ever-expanding “culture of death”.

Postscript: A couple of years after this was published, Jack was home and doing well when I was contacted by a documentary team from the UK who were making a film about Jack’s experience. I was asked to be a part of this.

I spent a lot of time with the British team and they told me how giving up on someone like Jack would not happen in the UK, despite their government-run National Health Service.

I knew this because in 2000, Dr. Keith Andrews of the Royal Hospital for Neuro-disability and his team in the UK had determined that “The slow-to-recover patient is often incorrectly labelled as being in VS (vegetative state)” at a rate of four out of 10. Dr. Andrews and his team developed the SMART (Sensory Modality Assessment and Rehabilitation Technique) to be used in hospitals to reduce the danger of misdiagnosis.

 

 

 

Miracle Babies

Yesterday, we learned that Baby Charlie Gard is expected to die soon as his heartbroken parents have decided to remove his life support because a US doctor had told them it was now too late to give Charlie nucleoside therapy. According to a BBC article, “US neurologist Dr Michio Hirano had said he was no longer willing to offer the baby experimental therapy after he saw the results of a new MRI scan last week.” Baby Charlie’s parents are now asking the court to allow them to take Charlie home to die.

We have learned much from Baby Charlie’s tragedy, not only about the perils of government deciding who should live and who should die but also about the love and commitment of his dedicated parents and the importance of the worldwide support they received.

Now we know there is more hope for babies born with conditions like Baby Charlie’s because of the publicity and probably more parents will try to find alternatives when they are given a poor or fatal prognosis.

Here are two cases where the parents did just that and saved their children.

ABIGAIL BUETLER AND POTTER’S SYNDROME

During the fight to let Baby Charlie get experimental treatment, U.S. Congresswoman Jaime Herrera Beutler led the effort in the US Congress to get residency for Baby Charlie. That would have expedited efforts to help Baby Charlie receive the experimental treatment in the US.

Congresswoman Beutler’s interest was also personal.

In 2013, she and her husband found out that their unborn baby Abigail had Potter’s Syndrome, a fatal condition where the kidneys are missing. She and her husband were told that no one ever survived this condition and abortion was offered more than once.

They looked for other options and found there was an experimental treatment given before birth for other conditions that might work on their Abigail. The parents contacted many different hospitals before Johns Hopkins finally agreed to try.

Today, Abigail is a healthy four year old and has a kidney donated by her father a year ago. She is the first known person to survive Potter’s Syndrome, thanks to her dedicated parents.

NOAH WALL, BORN WITH LESS THAN 2% OF HIS BRAIN

Also known as the “boy with no brain”, four year old Noah Wall was born in the UK with a rare complication of spina bifida that caused fluid to compress his brain down to an estimated less than 2% brain tissue.

The condition was discovered before birth and the parents were told that even if he survived birth, he would be severely mentally and physically disabled. Abortion was offed 5 times.

But Noah did survive birth and an immediate surgery was done for his spina bifida and a shunt was installed to drain excess fluid from his brain.

Thanks to the efforts of his devoted parents and sister to keep his brain stimulated, Noah has confounded the doctors by the regrowth of his brain. When a CT scan of his brain was done years later, doctors found that Noah now has 80% of his brain tissue. Even more amazing to the doctors, Noah has developed into a charming, expressive and empathetic little boy who now attends a local primary school, despite still having  some physical and mental impairments.

This year,  a documentary about Noah was made. I saw it myself a few weeks ago on TV and I highly recommend seeing it.

And as the UK’s Daily Mirror newspaper article wrote:

“Neurosurgeon Dr Nicholson sums up the larger importance of Noah’s incredible story:

‘He teaches the medical profession that you can’t ever know’.”

CONCLUSION

Over the years, medical progress has made great strides while medical and legal ethics have deteriorated because of a “quality of life” mentality.

This has led to medically discriminatory attitudes affecting people with disabilities as I personally found out when my daughter Karen was born with Down Syndrome and a severe heart condition.

All children with disabilities deserve both a welcome and a commitment to help them have the best life possible from not only their parents but also from the rest of us.

The Catholic Church, Experimental Treatments and Charlie Gard

A disturbing statement made by Archbishop Vincenzo Paglia, head of the Vatican’s Pontifical Academy for life, appearing to support the European Court of Human Rights decision to reject Baby Charlie Gard’s parents’ request to go to the US for an experimental treatment for their critically ill son struck a nerve with many Catholics. And although Pope Francis quickly expressed his support for Baby Charlie and his parents shortly after the statement, the ethical issue of experimental treatment remains confusing to many people, Catholic or not.

But what has the Catholic Church really said about experimental means?

VATICAN STATEMENT ON EUTHANASIA

Perhaps the best guidance can be found in the 1980 Vatican Statement on Euthanasia that states:

“If there are no other sufficient remedies, it is permitted, with the patient’s consent, to have recourse to the means provided by the most advanced medical techniques, even if these means are still at the experimental stage and are not without a certain risk. By accepting them, the patient can even show generosity in the service of humanity. – It is also permitted, with the patient’s consent, to interrupt these means, where the results fall short of expectations.” (Emphasis added)

The document further explains that:

But for such a decision to be made, account will have to be taken of the reasonable wishes of the patient and the patient’s family, as also of the advice of the doctors who are specially competent in the matter. The latter may in particular judge that the investment in instruments and personnel is disproportionate to the results foreseen; they may also judge that the techniques applied impose on the patient strain or suffering out of proportion with the benefits which he or she may gain from such techniques. (Emphasis added)

This is a common sense and balanced approach that was not controversial in 1980 and should apply in Baby Charlie Gard’s situation, especially since there is apparently disagreement among doctors about the experimental treatment.

TWO CASES OF EXPERIMENTAL TREATMENT

When I worked with cancer patients in the 1980s and 1990s, I especially remember two patients who decided to try experimental treatments.

One was an older woman whose cancer had spread to her brain. A new drug had been developed that would have to be administered via an access implanted in her head. She desperately wanted to spend more time with her family and was willing to try the drug despite the potential side effects and poor chance that the drug would work.

Initially, the drug did make her worse and she was near death. Three times we called her family to come in because death was imminently expected and she was in a coma.

But she surprised us all by recovering and two years later was still doing well without any recurrence of the cancer. The doctors were astounded.

In another case, a man in his 40s with two sons also decided to be part of a clinical trial of a new drug for his cancer. Some of my colleagues questioned why he would take on such a challenge so I talked with him. He said that he accepted the fact that he was probably going to die of his cancer but he wanted to try the drug not only in the hope that it would benefit him or others like him but also because he wanted his sons to know that he fought to live and be with them.

Although this man died, he left a brave legacy of love to his boys.

CONCLUSION

It is important to understand that medical progress and technological marvels often happen because doctors, patients and family persist in trying.

For example, it wasn’t that long ago that AIDS was considered incurable. Experimental drugs did not work at first but later ones did and now AIDS is no longer an automatic death sentence.

Baby Charlie’s parents worked hard to find a potential treatment and even raised the money to transport their son to the US. The hospital’s decision to usurp the parents and unilaterally remove Baby Charlie’s life support has led to an outpouring of support for Baby Charlie and his parents.

Let us hope that this latest court appeal will reverse the hospital’s decision and help restore the rights of parents reasonably trying to help their children

35 Years after Baby Doe Continued: The Simon Crosier and Charlie Gard Cases

Last week, I wrote about Baby Doe and my daughter Karen and how both were medically discriminated against 35 years ago because they were born with Down Syndrome. The ethical rationale in both cases help set the stage for the legalized assisted suicide/euthanasia we struggle against today.

Unfortunately, the legal right to live for children with disabilities and their parents continue to be under attack today with the cases of Simon Crosier and Charlie Gard.

SIMON CROSIER

Last August, I wrote a blog titled “Parent Power” about the efforts by some legislators in Missouri and Kansas to block the passage of Simon’s Law, a bill that exposed and sought to change the secret futility policies in even some Catholic hospitals that led to the death of Simon Crosier, a baby born with Trisomy 18.

Since that blog, Kansas finally did pass Simon’s Law but in Simon’s home state of Missouri, the bill is still stuck in committee even though new information about the life expectancy and prognosis for such children led to an opinion editorial in the prestigious Journal of the American Medical Association (JAMA) admitting that withholding life-sustaining treatment from babies with Trisomy 13 and 18 was really a value judgment rather than a medical judgment.

The fight for Missouri’s Simon’s Law will continue.

CHARLIE GARD

On June 30, 2017, the parents of 11 month old Charlie Gard lost their appeal to European Court of Human Rights to keep their son with a rare genetic disorder on life support and take him to the US to try an experimental treatment. The appeal was filed after Britain’s Supreme Court decided to let the hospital remove Baby Charlie’s life support, finding that prolonging Charlie’s life was “not in his best interests.”

Baby Charlie has a rare genetic disorder affecting his muscles and brain that has caused  brain damage, seizures and prevents him from breathing on his own.  A neurologist in the US has suggested an experimental nucleoside treatment that might, in theory, offer some benefit although the treatment has not been tried before in a situation like Baby Charlie’s.

On Facebook, Charlie’s parents said that they were “heartbroken” and aghast that the hospital would not even allow them to take their son home to die.

Charlie’s parents have been fighting for months for the right to take their son to the US try this experimental treatment. By the time of the court decision, $1.7 million had been raise through crowdfunding media to cover expenses.

Unlike the Simon Crosier case, the withdrawal of treatment decision by the hospital was not secret.

Apparently under British law, parents do have the right to make decisions about the treatment of their children unless the treatment is not in a child’s “best interests” and usually it is parents who refuse treatment for their children on moral of religious grounds who end up in court.

The Charlie Gard case has caused enormous conflict among ethicists, lawyers and even religious leaders across the world as well as the general public.

However, in the last few days, Baby Charlie and his parents gained support from two important people: Pope Francis and US President Donald J. Trump.

At first, a Vatican official issued a statement on Baby Charlie that “We must do what advances the health of the patient, but we must also accept the limits of medicine and, as stated in paragraph 65 of the Encyclical Evangelium Vitae, avoid aggressive medical procedures that are disproportionate to any expected results or excessively burdensome to the patient or the family.” But a few days later and after much criticism of the first statement, Pope Francis expressed hope that the desire of 10-month-old Charlie Gard’s parents “to accompany and care for their own child to the end” will be respected. (Emphasis added)

Then, after a July 3, 2017 offer by President Trump to help, an unnamed US hospital came forward to offer free treatment to Baby Charlie.

CONCLUSION

On their GoFundMe page , Baby Charlie’s parents wrote:

If Charlie receives this treatment and it does work like the Dr in America thinks, it won’t be just Charlie’s life that has been saved, it will be many more children in the future, who are born with this horrible disease and it will open up other trials on other mitochondrial depletion syndrome’s.

We need to change things and show how determined parents can forge a path for other families encountering similar obstacles. We need to find treatments for incurable diseases. We need to give other people hope. We need to start saving lives.. hopefully starting with Charlie xxx (Emphasis in original)

Over my decades of nursing experience, I have seen people decide to try experimental treatments because they hoped for a cure, improvement or at least to help doctors learn more that may help someone else later.

Sometimes the treatments worked and sometimes they didn’t but after talking with these patients (or parents), I could not help but admire their love, courage, faith and determination.

May God bless Baby Charlie, Baby Simon and their parents!

“Physician-Assisted Dying: Is a Patient’s Despair Reversible?” by Arthur Caplan, PhD. And Maurie Markman, MD

A while back, I received a phone call asking me to talk to a man in another state who was desperately seeking physician-assisted suicide. He was in the later stages of a degenerative disease and wanted to die before his condition “got too bad”.

I talked to this man I will call “John” for quite a while about his life, his frustrations, his strengths, some resources, etc. He said he had told his caregivers at the nursing home that he would like to talk to someone about his concerns months ago but nothing happened. With his permission, I spoke to his caregivers and I asked John to keep in touch.

About a month later, John contacted me and said that he had changed his mind about assisted suicide and was enjoying being with friends and going out on trips with other residents.

He said the biggest help was talking with someone like me who listened and who cared.  Best of all, he said “I do deserve a better life!”

I thought about John when I read an April 06, 2017 commentary from Medscape, a password protected news site for medical professionals, titled “Physician-Assisted Dying: Is a Patient’s Despair Reversible?” 

The commentary was a discussion between Arthur Caplan, PhD, a prominent ethicist  who was against legalizing assisted suicide until the Brittany Maynard case, and Maurie Markman, MD, an oncologist and professor who also supports assisted suicide, that I found disturbing.

For example, Dr. Markman says that:

 “My concern is that the reason someone may ask for death, which is their right, is because of despair. Despair may be potentially temporary or it may be permanent, but death itself is permanent. My concern would be that some part of an individual patient’s despair may be reversible; I would want to be certain that it is not reversible before deciding that this (physician-assisted suicide) makes sense for that person, from my perspective.”
(Emphasis added)

But amazingly, neither Dr. Markman or Dr. Caplan even mentions or recommends  mental health evaluations for people considering assisted suicide-something which no assisted suicide law now requires because such suicides are considered “rational”.

Instead, there is this exchange:

Dr Caplan: I remember when Jack Kevorkian was bringing people to Michigan and helping them die in the back of Volkswagen vans and so on. One problem I had was that he did not know these people.

Dr Markman: That’s right.

Dr Caplan: They would show up, and 24 hours later, they would be gone to the hereafter; some of them were terminally ill, and some were not, as a matter of fact. Given the constraints that physicians face in terms of time and other activities they have to engage in—paperwork and so on—can they get to know patients well enough to have reliable discussions about the authenticity of their wishes to die?

Dr Markman: That is a concern. Physicians don’t have enough time to do a lot of things. The kind of conversation we are talking about would involve a lot of time and effort. I would suggest that physicians would want to be able to spend that time with their patients, but it does not mean they have that time. Quite frankly, it may be relatively immediate time. A patient comes in at a particular point and says, I’m thinking of doing this and I’m thinking of doing it now, and the doctor has a full schedule. The physician would want to take that time, would want to bring in the family, but it is difficult with time constraints. (Emphasis added)

There is another discussion of financial burdens impacting assisted suicide, with Dr. Caplan saying:

Dr. Caplan: Here is a source of growing despair: These treatments (for cancer) are causing me to go broke. I cannot afford a $100,000 biologic or immunotherapy, or I simply do not want to linger on and on while my grandson’s tuition is spent, or whatever. We have come to think about this as the problem of financial toxicity: more tools, but more associated cost. How does physician-assisted dying fit into this emerging area of financial burden?

Dr. Markman: … The potential for bankruptcy is becoming a major issue among patients with cancer. We know that during the Great Depression, people went bankrupt and committed suicide. Why could it not happen now, when we are talking about therapies that cost hundreds of thousands of dollars a year and patients have copays of 20%? Financial toxicity is real.” (Emphasis added)

CONCLUSION

Where is the compassion for these suicidal people grappling with issues that lead them to consider physician-assisted suicide?

This dispassionate discussion of some qualms that these supposed experts seem to have about physician-assisted suicide still leaves assisted suicide laws intact and does nothing to promote non-discriminatory suicide prevention and treatment or even conscience rights for those of us who oppose physician-assisted suicide.

Rest in Peace, Nat Henthoff

The famous writer and intellectual Nat Henthoff died January 7, 2017 at the age of 91.

Wesley Smith wrote a wonderful tribute to this self-described “Jewish, atheist, civil libertarian, left-wing pro-lifer” in an article titled “Nat Henthoff, Memory Eternal”  for the National Review.

I knew Nat for many years. He was a wonderful man with a great sense of humor and a great intellectual with expertise in many areas including journalism, jazz and law. He was also proud of being a total Luddite and insisted that I send him all my articles by snail mail instead of email-which drove me crazy!

I was honored when he quoted me in his 2003 article “The Culture of Death” in the Village Voice but I was embarrassed when he sent a photographer from the newspaper to take my picture for the article.

I now treasure that article.

Rest in peace, Nat. We miss you  and we will never forget you!

Should Ethics Committees be Death Panels?

I volunteered to serve on a newly started hospital ethics committees in the 1990s. While I wanted to help analyze difficult cases and serve as a resource for hospital personnel with ethical concerns, I became increasingly alarmed when I saw cost containment and judgments based on “quality of life” brought up as decisive factors by others on the committee.

I understood more when I researched the beginnings of ethics committees.

BACKGROUND

After numerous failed attempts to legalize euthanasia, the Euthanasia Society of America invented the “living will” in 1967 as a first step in gaining public acceptance of euthanasia by promoting a so-called “right to die”. The group achieved much success by publicly promoting “living wills” as a patient rights document that would give people and/or their families  choice and control at the end of life or, especially after the 1976 Karen Quinlan case, if their quality of life was considered too poor.

Karen Quinlan’s case (where despite predictions,  she continued to live for years after her ventilator was removed) effectively extended the “right to die” to non-terminally ill people said to be in a “persistent vegetative state”, a term invented in 1972 to describe brain-injured people who were awake but assumed unaware.

The later cases of Nancy Cruzan and Terri Schiavo  further extended the “right to die” to withdrawal of feeding tubes and other basic medical care.

Eventually the Euthanasia Society of American became The Society for the Right to Die and finally evolved into Compassion and Choices and the “right to die” became “death with dignity” by lethal overdose.

ETHICS COMMITTEES

Ethics committees in hospitals began to emerge after the Quinlan case as an alternative to controversial court cases and became more prevalent in the 1980s, especially after the Baby Doe case in 1982. That case involved a newborn boy with Down Syndrome and an easily correctable defect that prevented him from eating safely. The parents refused the surgery and were upheld by a judge. An appeal was started but the baby died of starvation and dehydration before his appeal could be heard. Disability, pro-life and other groups and individuals were outraged.

Concerns about lethal medical discrimination against infants with disabilities resulted in the Baby Doe Regulations mandating maximal care to any impaired infant, unless certain exceptions are met.

However, there was much medical and legal opposition to these rules and:

“By the end of 1984,  the American Academy of Pediatrics and the American Hospital Association issued statements supporting the use of interdisciplinary ethics committees as an alternative to governmental investigation in such cases.” (Emphasis added)

AN UNEXPECTED PROBLEM

But a surprising development happened on the way to privatizing life and death decisions through ethics committees.

Some people and families resisted and insisted that medical treatment be continued for themselves or their loved ones despite a “hopeless” prognosis and the recommendations of doctors and/or ethicists to stop treatment. Many doctors and ethicists were appalled that their expertise would be challenged and they theorized that such families or patients were unrealistic, “in denial” about the prognosis or were mired in guilt or dysfunctional family relationships.

However, these doctors and ethicists were shocked when in 1991, a court ruled in favor of the husband of Helga Wanglie when he insisted that treatment be continued for his wife despite a “persistent vegetative state” diagnosis.

That court decision was widely criticized in ethics circles and in 1999, Texas enacted a medical futility law.

THE TEXAS ADVANCE DIRECTIVES ACT

In 1999, Texas became the first state to expressly permit doctors to stop life sustaining treatment without consent after a review process by an ethics committee. According to the Texas Advance Directives Act, when care is deemed “futile” or “inappropriate” and the patient or family disagrees,  the patient or family is given 10 days to find another health facility for the patient and pay for “any costs incurred” in the transfer. “If a provider cannot be found willing to give the requested treatment within 10 days, life-sustaining treatment may be withdrawn unless a court of law has granted an extension. “ (Emphasis added)

Thus an ethics committee becomes the equivalent of a death panel.

This kind of ethics committee overreach has now spread far beyond Texas. For example in 2002, I was involved in a similar a case in Missouri involving a brain-injured man despite the state not having a Texas-style law.  It was difficult to find another health care facility to accept the man within the 2 week deadline given by the hospital but ultimately the man not only survived but recovered after the transfer.

The Texas law is now being challenged in the case of Evelyn Kelly, individually, and on behalf of the estate of David Christopher Dunn v Harris Methodist Hospital, a case where a terminally ill, conscious man’s mother fought the ethics committee’s decision to remove his ventilator.

Although Mr. Dunn has since died, the case continues on the question of whether the Texas law is constitutional or not.

In the summary judgement motion filed, Ms. Kelly and her lawyers state that the ethics committee’s action “is an alarming delegation of power by the state law” and “is a far cry from the due process intended to protect the first liberty mentioned in Article 1, Section 19 of the Texas Constitution and that of the Fourteenth Amendment”. (Emphasis added)

Mrs. Kelly and her lawyers make a good point. How can a life and death decision be automatically delegated by law to an unregulated, unaccountable group of individuals outside the legal system?

Even worse, how can the right to live have less legal protection than the “right” to be dead?

The answers to these questions are critically important.