Legal Approaches to Bioethics - Essay Example

Legal Approaches to Ethics: Final Assignment “Justice is an elusive word” - Stephen Waddams. Justice is one of Beauchamp and Childress’ four bioethical principles that they lay out in their work(Beauchamp & Childress, 2013). As such, justice is the principle that the law is intended to primarily serve (Bernard M Dickens, 1994). Traditionally, the term justice is too broad has been used to describe different concepts such as fairness, equality and appropriate distribution(Maiese, 2003). However, justice can be described within the following different domains:procedural, retributive, substantive and distributive(Maiese, 2003). Procedural justice concerns with fair and consistent process that guarantees fair treatment(Maiese, 2003). Retributive or punitive justice can be understood as a retroactive process that justifies punishment for past injustice or violation(s) of the law (Maiese, 2003). Substantive justice is concerned with enforcing the rights and obligations. Distributive justice is concerned with the fair allocation of rights, duties, benefits and burden among community members(Bernard M Dickens, 1994; Maiese, 2003). Accordingly, this paper demonstrates the application of the justice principle in end-of-life legislations and legal cases. Further, this paper focuses on four cases: brain death concept, the Rasouli case, the Latimer case, and the Carter case. Brain death concept Historically, death has been defined as the cessation of respiration and blood circulation(Dickens, 1985). Yet, the development of mechanical technology to maintain vital function, such as ventilators and machines to assist blood circulation, has posed a new ethical question about the patients with irreversible or otherwise profound neurological damage. The question develops to whether or not these individuals are in fact dead or not Further, one must question whether or not it is ethical to withdraw life support from these patients. As such , the brain death concept was introduced by a Harvard ad hoc committee in 1968("Report of the Ad Hoc Committee of the Harvard Medical School," 1968). Brain death was recognised as criterion for death in Canadian provincial legislation (B. Dickens, 1985). For example, Ontario’s Trillium Gift of Life Network Act ("Trillium Gift of Life Network Act (R.S.O. 1990, CHAPTER H.20)," 1990)in s.7 (1) states that death should be determined by at least two physicians; in accordance with accepted medical practice. Dickens analyzes existing legal approaches in death determination and indicates that the current process embraces what is known as the brain death concept(Dickens, 1985).This approach permits the withdrawal of artificial life support and organs procurement in brain dead patients. Ethical principles: Legislators’ death determination and brain death recognition is fair and addresses two ethical principles that can be in tension in brain dead patients, respect for person and justice (fair resources allocation). Respect of person requires that the protection of incapable person’s life, integrity, and security(Bernard M Dickens, 1994). Providing a person with means to maintain his/her life, such as artificial life support, is therefore an ethical and legal duty of respect and beneficence. Yet, providing futile medical care can be regarded as an unjust use of finite critical care resources; resources that might otherwise be utilized more efficiently and to the greater benefit of broader society. Additionally, the duty to respect a living person prohibits the use of the organs of living coma patients. In such a manner, transplantable organs should be harvested only form cadavers or from consenting living donors(Dickens, 1998). Death determination in brain dead patinets allows for the distinction between life and dead and retains the respect for living persons. Justice is the other ethical principle in brain death. From a distributive justice perspective, brain dead patinets require a lot of medical resource to maintain their vital functions. These resources are invariably scarce and expensive. Fair and equal distribution of resources based on equality and need is an important principle of distributive justice(Maiese, 2003). Medical experts report that brain dead patinets can no longer recover and their medical treatment is futile("Report of the Ad Hoc Committee of the Harvard Medical School", 1968). Continuation of expensive life support in brain dead patient can be viewed an unfair distribution as it might deprive other patinets who can recover from these resources. The legal system recognition of brain death allows for the withdrawal of life support and futile medical treatment in brain dead patients and ensures fair distribution scarce health care resources. From a procedural justice viewpoint, the legal procedure for death determination, that embrace brain death, established a fair and consistent process for all physicians to follow in coma patients. The process provides a distinction between irreversible coma brain dead patients and patients with reversible coma. Death determination process allows for fair treatment and protects patients with reversible coma from illegal organ harvesting and/or body intrusion. From a substantive justice standpoint, persons have the right to life and security under the Canadian Charter of Freedom and Rights and the Universal Declaration of Human Rights. Although these rights do not extend to the dead, the legal understanding and distinction of death protects the rights of life and security for living vulnerable reversible coma patients. The instrument of the law in brain death The laws are described as minimum ethics(Dickens, 1994). Furthermore, it was deterimined that not the most effective measurement with regards to brain death. Legal death determination is meant to provide a consistent process but it lacks insight to the peculiarities of certain decisions (Dickens, 1994). The death determination in brain dead patients is subjective and heavily dependent on a physicians’ judgment. Health provider’s conflict of interest and family resistance are common factors that are not addressed by such laws. Cuthbertson v. Rasouli("Cuthbertson v. Rasouli,") Mr. Rasouli, a patient with persistent vegetative state following a complication of brain surgery faced a situation in which his critical care physician wanted to withdraw life support as the treatment was no longer effective. Ms. Salasel the wife of Mr. Rasouli and his substitute decision make (SDM) has refused to consent for life support withdrawal and applied for court restraining order. The Supreme Court of Canada (SCC) ruled that Ms. Salasel’s consent is needed for the withdrawal of life support. The SCC also ruled that any challenge for Ms. Salasel’s decision should be brought to the Consent and Capacity Board (CCB) under the Health Care Consent Act (HCCA) (" Health Care Consent Act, SO 1996, c 2, Sch A "). Applied ethical principles Two ethical principles are in conflict in the Rasouli case, the respect for persons and beneficence/non-maleficence. The principle of person’s respect in this case is represented by his wife (SDM) autonomy and her position to continue life support. Ms. Salasel emphasized that it was within Mr. Rasouli’s prior capable wishes to continue life support and she was honouring his choice. On the other hand, physicians propose that continuing life support offers no benefits and might cause more harm and suffering. This position represents Mr. Rasouli’s best interest and in support of beneficence and non-maleficence moral principles. However, the court decision is fair and it addressed the conflict through the lens of justice principle. Procedural justice principle was central to the SCC decision. The SCC ruled that the decision making in end-of-life should be according to the process of the HCCA("Cuthbertson v. Rasouli,"). The court explains the HCCA and regard withdrawal of life support as treatment that needs consent of the patient or his/her SDM("Cuthbertson v. Rasouli,"). The court ruled that HCCA process should be followed in case of SDM refusal. This process should be followed for all decision in Ontario ("Cuthbertson v. Rasouli,"). Distributive justice is represented by fair intensive care resource allocation. Dickens ((1998) describes that resources allocation is usually performed at general or “public”level. He also describes that courts do not review particular allocation decisions of individual patients because it might affect other patients who are not parties to the case(Dickens, 1998). As such, the SCC did not formally address the resource allocation in Cuthbertson v. Rasouli("Cuthbertson v. Rasouli,"). Under the principle of distributive justice, all persons should have equal and fair access to health care resources. Blocking the access to health resources for patients with disability (e.g. brain injury) as the case with Mr. Rasouli might be considered discriminatory and/or otherwise unfair barrier to resources. From a substantive justice perspective, all persons have the right to life and security under the Canadian Charter of Freedom and Rights and the Universal Declaration of Human Rights. It prohibits discrimination on grounds of physical and mental disabilities. Giving that Mr. Rasouli had not met the brain dead definition, withdrawal of life support based on his medical condition can be viewed as a discriminatory act and in violation for his human right to live( Dickens, 1998). The instrument of the law in the Rasouli case In the Rasouli case, law is not the best instrument. The law focused on describing the consent process at Ontario and didn’t address the individualities of this case and the possible ethical choices. For instance, the court made no determination if life support should be withdrawn or not for Mr. Rasouli(Jarvis, 2013). Also, the SCC makes no determination on the right to treatment at the end-of-life and leaves it up to the SDM determination(Jarvis, 2013). R. v. Latimer("R. v. Latimer 2001 SCC 1 ") Mr. Latimer was convicted with second degree murder for the death of his daughter. Tracey Latimer was suffering from severe cerebral palsy but was not terminally ill. The convicted poisoned his daughter with carbon monoxide to relieve her from the anticipated suffering of a planned painful hip surgery. The SCC unanimously upheld the 10-years sentence decided by the lower court. Ethical principle Justice is the most important ethical principle in this case. From a retributive justice perspective, Mr. Latimer committed a serious crime (murder) and infringed on his daughter’s right to life. Although the father’s intention was to relieve the suffering of his daughter, sanctity of life is an important legal and societal rule that the convicted most certainly broke. Protection of society and disabled and deterrence are important factors in setting punishment. Also, Mr. Latimer did not explore any alternatives to painful surgery such as pain medication through feeding tube. Therefore, he deserves to be punished for his offence as decided by the court. From a procedural justice perspective, the court followed a consistent process in examining Mr. Latimer’s defence of necessity where three elements must be met. Based on this assessment, the court rejected the convicted individual’s defence. Also, the court overruled the one-year imprisonment and followed the mandatory minimum sentence as established by the criminal law. From a substantive justice perspective, the victim is vulnerable because of age and mental/physical disability. This crime was an infringement on Tracy Latimer’s constitutional rights to life, liberty and security that is protected under the Canadian Charter of Rights and Freedom. It is the duty of the court to protect the rights of the vulnerable persons. In this case, the court enforced the rights of the disabled by overturning the constitutional exemption—granted by lower court—and sentencing the convicted to 10-years. The court decision is fair. Despite Tracey’s pain and suffering, Tracey was not terminally ill. Killing Tracey’s is based on her disability. It is difficult to imagine that killing a disabled child will be unpunished. Protecting the life and rights of the disabled is an ethical and legal duty. As such, a father’s unilateral decision for mercy killing can be biased because of the stress and burnout that comes with caring for disabled child. Approving his act can set a legal precedent and will lead to a slippery slope. The court’s punishment is necessary to deter and discourage others from similar actions and to protect the rights of the disabled persons. The instrument of the law in the Latimer case The Latimer case created a great deal of controversy around legalizing euthanasia. Two principals were in tension; the right-to-die and protecting the rights of the disabled persons. The law is not the best instrument in resolving this controversial issue as it focuses on the procedural justice and does not address the complexity of the issue and the other ethical choices available. Carter et al v. Canada("Carter et al v. Canada (Attorney General),") Ms. Carter and Ms. Taylor suffered from intractable and progressive illness and now are deceased. They challenged the constitutionality of the Criminal Code provisions against assisted suicide and euthanasia. The plaintiffs succeeded in the lower court and the federal government appealed. Following a lengthy review, the Superior Court of British Columbia allowed the appeal of the federal government. The plaintiffs appealed the decision at the Supreme Court of Canada and waiting for the court decision if it will be accepted for hearing. Ethical principles: In this case, there was a conflict between the rule of sanctity of life and the controversial right-to-die (the right to access assisted suicide and euthanasia). The Superior Court of British Columbia decision was fair and addressed the principle of justice from two qualities, procedural and substantive. From a substantive justice perspective, the plaintiffs argued that the right-to-die exists under the principle of self-determination and respect. They argued the right-to-die also exists under section 7 in the Canadian Charter of Rights and Freedom as the right of the person for security. They argue that a terminally ill patient must feel secure against the risk, discomfort and the indignity caused by his disability. The lower court trial judge was of the view that prohibition of euthanasia was in violation with the person’s right to life in s.7 in the charter as it caused some people to end their life sooner that they would if assisted dying is available ("Carter et al v. Canada (Attorney General),(THERE SHOULD BE A YEAR of PUBLICATION HERE"). Also, the trial judge considered the prohibition is discriminatory against the rights of the disabled because well bodied person they do not require assistance for suicide while disabled need assistance. Yet, this is argument is conflicting with sanctity of life, disabled person’s right to life and the need to protect human life. Assisted suicide is intended solely for persons with disability (terminal illness) and this will undervalue life of the disabled. The Superior Court of British Columbia affirmed the right to life and considered the discrimination argued by the trial judge is justified. From a procedural justice perspective, the courts followed the legal rule and procedure. According to the doctrine of Stare Decisis “binding precedent”, the lower court is bound by what higher court decided. Therefore, the court considered the Supreme Court of Canada rule in Rodriguez v. British Columbia (Attorney General)("Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519,") is binding for the lower court and must be followed. The instrument of the law in the Carter case In this controversial subject, the court interpreted the charter rights in different ways. The focus was on the process as demonstrated by the application of the previously referenced “Stare Decisis” principle. Also, changing the legal status of assisted suicide require a major shift in policies and behaviours that need to be done in collaborative way not offered by law. Decision making at end-of-life should be addressed sensitively which is not the case in court judgment (Dickens, 1994). The law was not the best instrument in this case. In conclusion, justice is an ethical principle that law mostly address focusing on the procedural aspect. End-of-life decisions are complex and delicate issue that should be addressed sensitivity that is not offered by law judgment(Dickens, 1994). Bibliography Beauchamp, T., & Childress, J. (2013). Principles of Biomedical Ethics (Seventh Edition ed.). New York: Oxford University Press. Carter et al v. Canada (Attorney General) (2013 BCCA 435. Cuthbertson v. Rasouli (2013 SCC 53 A definition of irreversible coma. Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death. (1968). Jama, 205(6), 337-340. Dickens, B. (1985). Legal Evolution of the Concept of Brain Death. Transplantation Today, 2, 60-64. Dickens, B. M. (1994). Legal approaches to health care ethics and the four principles. In R. Gillon (Ed.), Principles of Health Care Ethics (pp. 305-317). Chicester: John Wiley & Sons. Dickens, B. M. (1998). Legal developments in transplantation. Ann Transplant, 3(3), 30-37. Health Care Consent Act, SO 1996, c 2, Sch A Jarvis, D. (Novemeber 6th, 2013). [UNDERSTANDING THE SCC DECISION in the RASOULI CASE [unpublished lecture notes]]. Maiese, M. (2003). Types of Justice in Beyond Intractability, eds. Burgess G and Burgess H, Conflict Research Consortium, University of Colorado, Boulder. http://www.beyondintractability.org/essay/types_of_justice/. R. v. Latimer 2001 SCC 1 ( Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 ( Trillium Gift of Life Network Act (R.S.O. 1990, CHAPTER H.20) (1990). Read More