9/1/11 INTRODUCTION TO MORAL REASONING (Podcast on morality) What distinguishes medical malpractice _______ The profession determines an acceptable standard of practice In 1914, Cardozo said: every person of adult years and sound mind has a right to say what happens to their body (forgotten, and then dusted off for the Nuremburg trials) Lets talk about sound mind: what does this mean, legally? Ex: somebody in a coma, not of sound mind Step up: severe alzheimers? Step up: mental illness (oriented x 3) -autism/down syndrome -PTSD/emotional trauma -addicts -people under the influence of somebody else (cult/religion/military/prisoners/etc) -the unwilling decision-making capacity in order to have capacity We never talk about competence this was the notion that existed in the law to describe whether somebody had decision-making capacity Article 81 NY said were not going to treat people as either competent or incompetent (black/white) going to deal with people w/ diminished capacity by determining what decisions they can/cant make -Art. 81 petition must use the least-intrusive means possible to determine a patients capacity Ex: you are diagnosed w/ prostate cancer technically complicated -general prosteotomy -general beam -seed implantation -watch it So, how do you decide if a given 65-year old has the capacity to decide what should be done to his body? There are 3 kinds of decisions that a patient may have to make differing degree of capacity What kind of decision requires the greatest capacity? choosing between those four options Second-most demanding? whether to treat at all Least capacity? whether to let somebody else make this decision Point: capacity varies as a matter of degree, and lies upon a range; at the bottom end of that range is the necessary capacity to appoint somebody as your surrogate (proxy)

On final: you get max 50% if you just know the law MUST talk about the ethics Family Health Care Decisions act passed in NY last year allows family members to make decisions on behalf of patient if no surrogate is appointed (Missouri is now the only state where family members cannot make medical decisions) The law, however, rarely enables a doctor/patient/family to know what is the right decision this is usually the province of medicine What do ethics provide in terms of a framework for making decisions? Ethicists apply ethical theories to real-life situations What are ethical tools? Ethical tools are principles there are a lot of principles 4 principles the Kennedy principles (Philosophy also has 4 ethics, epistemology, metaphysics, aesthetics) Within medical ethics: autonomy, beneficence, non-malfeasance, justice (2 and 3 can be lumped into paternalism) Core medical principles Principle conflict tension between autonomy and medical maternalism (doing whats best for the patient, regardless of whether they realize it or not) In medicine harder for patient to make all of the decisions that a doctor ought to be making if a patent thinks he should go home and drink Drano to clear up a stomach blockage, the doctor shouldnt allow this 4 categories of rules Laws, customs, ethical/moral rules, institutional rules How do we distinguish ethical rules from laws? Working definition of ethical rules rules of behavior that dont lend themselves to codification as laws, for a variety of reasons (vary too much, etc) Ethics provides us with a way to decide what rules should be, and how they should be enforced Ethical standards of the medical profession are incorporated by reference into the law HLA Hart sign in park saying no vehicles allowed in the park is this a law or a rule? How do you know? Where is it? Who put it there? How is it enforced? Penalty?

What do people understand it to mean? HLA Hart said that all rules have a core meaning and a peripheral meaning Core meaning may be easily defined, but as you get away from the core, meaning is less clear You cant just drive your car up to the picnic table this, we agree with On the other end of the spectrum a kid can obviously bring a matchbox car in 9/8/11 UNDERSTANDING THE THERAPEUTIC RELATIONSHIP Text: Chapter 1 ANGEL: Arras on Moral Reasoning Chapter 1: I. Intro Values: the worth, goodness, or desirability attributed to something. Morals: those traditions of belief about what is right or good in human conduct that develop, are transmitted, and are learned, at least in part, independently of rational, ethical inquiry. Ethics: that branch of philosophy or reasoned inquiry that studies both the nature of and the justification for general ethical principals governing right or good conduct. Fundamental principles of bioethics: 1. Autonomy 2. Non-malfeasance 3. beneficence 4. confidentiality 5. distributive justice (resources should be distributed fairly) 6. truth telling (honesty, integrity) II. Ethical Theories Consequentialism and deontological ethics Consequentialist judge the quality of an act by the end it achieves (utilitarianism is a consequentialist scheme) Deontological justify the moral propriety of an act on something other than the outcome (Kantian ethics) (see p 6-7) Natural law morally proper act is that to which human beings are naturally drawn. religious basis values life extremely highly, but accepts that the particulars of distinct situations require an individual to exercise his own rational capacity and virtue Natural law and the doctrine of double effect Some actions that one knows will result in death are moral under certain circumstances Requirements for the doctrine of double effect to exist: 1. act itself must be morally good or at least indifferent 2. actor may not intend the bad effect, and would avoid it if possible 3. good effect must be produced directly by the action, and not by the bad effect 4. the good must outweigh the bad effect. Ex: legality/moral permissibility of discontinuing life-sustaining medical treatment in certain circumstances (papal pronouncement in 1957, In re Quinlan in 1976 (NJ SC))

Also has encouraged administration of painkillers even if, as a byproduct, the treatment causes patients death (Vacco v. Quill, US 1997) (even though this case rejected a constitutional right to assisted suicide) Double effect has created more compassionate pain relief (unless youre Dax Cowert) see problems w/ double effect on p. 10 Arras: Two major types of utilitarianism Act-utilitarianism must examine effects of specific, individual acts on a case by case basis Rule-utilitarianism must assess the effects of classes, or kinds, of actions (see p. 8 for example) what act here would cause the most happiness vs. what policy would cause the most happiness? Sometimes duties are conflicting must rank them Important question: what falls in between? (for the no vehicles sign) (a whole bunch of stuff) Rules that may seem black and white, but the rest of the semester we will be applying them to fuzzy situations What about a fire truck? The more detailed a sign, the more a passerby might be informed of the justification; however, the more info, the less you can read as you drive by How do we decide when a rule should not be applied? all rules that require interpretation have a core meaning (clear and evident) and a peripheral meaning (less clear) to the obvious circumstances where the rule doesnt apply) thou shalt not kill When is it ok to kill outside of war and self defense? Abortion Defense of others Euthanasia? Two schools of thought on deciding how to apply a rule: Kantian categorical imperative (principle-ism) do the right thing, without regard to the consequences non-consequentialist school of thought Vs. Utilitarianism (Millsian) (act and rule) Neither one is right most of the time these are just frames of reference

Kantian rule there would be no exception for self-defense and war If you were on the sidewalk in the 1940s, in germany, with a gun utilitarians would say you should kill hitler, Kantians would say that killing is always wrong What is the Kantian justification for a 55 mph speed limit? Always drive safely, even if it causes a lot of wasted time Utilitarian? Balancing competing objectives of getting places fast and causing fewer accidents Always think about two approaches: Utilitarian balancing competing objectives Kantian principles Why are doctors obligated to preserve patient confidentiality? -prevent embarrassment, When are they obligated to disclose something? -patient may harm others -child abuse -HIV positive status -certain transmissible diseases -gunshots -stabbings -poisoning So how do we know when confidentiality is good and when its bad? If patient doesnt feel safe in disclosing their entire medical history, they may not be honest -how do we decide when the risks of disclosing are outweighed by the risks of not disclosing? HIPPA nothing really to do with privacy, but Congress said that it was later authorized to do something about privacy Hippocratic oath notion that you are dependent on the doctors special skill and knowledge you can maybe learn to fix your car, or hold off servicing the car until you know how, but you cant put off medical procedures inherent dependency Confidentiality can be the product of a contract, not a professional oath What is the role of lawyers here? We advise them of the higher duty of care that they have compared to other professionals (you can voluntarily be a cheaper mechanic, but not an inferior doctor) (?) Everybody is entitled to a minimum level of competence

AMA principles of medical ethics what is difference between Hippocratic oath and this? HO is 1st person AMA code is 3rd person (normative) establishes standards that physicians are expected to follow, aspire to Code for psychologists is a descriptive code phraseology simply describes this theoretical psychologist in terms of things that he does/doesnt do not even normative What is the point of having an oath/code? -standards for ethical behavior Obligation placed on docs by society, saying, we expect you to recognize that sometimes you must do what is best for the patient, even if the patient doesnt recognize it -also clearly define what is off-limits Nuremberg trial Generally, doctor is obligated to treat the patient in a way that is best for the patient, without regards to what is best for other people Section IX even if health care isnt a right, it should be sufficiently available that anybody who can purchase the services of the physician should have access to them (does NOT mean socialized medicine) Patient who wants a treatment that the doctor doesnt think is indicated

9/15/11 DECISION-MAKING CAPACITY V. LEGAL COMPETENCE TEXT: CHAPTER 5, SECTION 4 RESEARCH: MENTAL HYGIENE LAW, ARTICLE 81; PUBLIC HEALTH LAW SECTION 2504 (Mental hygiene law is saved to computer, and will stay there. 2504 is printed out.) Text: Chp 5, Sec IV DECIDING FOR THE PATIENT A. DETERMINING DECISIONAL CAPACITY Roth et al 5 possible tests for capacity 1. evidencing a choice presence or absence of a decision. 2. reasonable outcome of choice ability of patient to reach reasonable, right, or responsible decision (if patient fails to do so, generally considered incompetent) biased in favor of decisions to accept treatment 3. choice based on rational reasons similarly biased, also tough to decide what are rational reasons 4. ability to understand most consistent with the law of informed consent

5. actual understanding physician must determine if patient actually understands what they are told higher standard than 4, obviously Presidents Commission 3 elements for capacity 1. possession of a set of values and goals 2. ability to communicate/understand information 3. ability to reason/deliberate about ones choices Quackenbush case man would die without having his leg amputated, but he was rambunctious, belligerent, and a conscientious objector to medical therapy who had shunned medical care for 40 years. Court decided he was competent based on 2 psychologists and the judges own visit with the man. (p 285) B. DETERMINING THE PATIENTS CHOICE The more difficult it is to determine what the patient would do if he had decisional capacity, the more likely it is that the court will apply the principle of beneficence rather than autonomy. (see Uniform Health-Care Decisions Act of 1993, on p. 287) UHCDA also essentially creates this order of hierarchy of decisionmaking: 1. patient, if the patient has decisional capacity 2. patient, through an individual instruction 3. an agent appointed by the patient in a written power of attorney, unless a court has given this authority to a guardian 4. a guardian appointed by the court 5. a surrogate appointed orally by the patient 6. a surrogate selected from the list of family members and others who can make health care decisions on behalf of the patient. one purpose of the statute is to assure thatintimate health care decisions remain within the realm of the patient, the patients family and close friends, and the health care providers court plays very small role Discovering a patients wishes: In re Eichner (NY 1981) p. 301 Solemn pronouncements made with regards to girl in identical condition clearly and convincingly demonstrate what Brother Fox would have wanted done. Priest Fox had heart attack and went into vegetative state, ona respirator. No hope for recovery. Eichner gets confirmation that Fox would never leave this state, and asks hospital to remove respirator. Hospital refuses without a court order. Foxs only surviving relatives supported Eichners request in court, and all experts in the court agreed that Fox would not recover. Eichner also submitted evidence that Fox wouldnt want to be on respirator from discussion of girl in similar condition said he wouldnt want his life prolonged by such measures if condition were hopeless. In re Conroy (NJ 1985) p. 304 Life-sustaining treatment may be withheld or withdrawn from an incompetent patient when it is clear that the particular patient would have refused the treatment under the circumstances involved (not a reasonable person standard, but the view of the actual patient). It may also be withdrawn/withheld if either the limited-objective or a pure-objective best interest test is satisfied. Limited-objective if there is some trustworthy evidence that the patient would have refused the treatment.

Pure-objective the net burdens of the patients life with the treatment should clearly and markedly outweigh the benefits that the patient derives from life. Treatment must be inhumane given the quality of the life. Conservatorship of Wendland (SC 2001) p. 312 A conservator may not withhold artificial nutrition and hydration from a person who is NOT terminally ill, comatose, or in a persistent vegetative state absent clear and convincing evidence the conservators decision is in accordance with either the conservatees own wishes or best interest Conservator vs agent freely appointed agent may be presumed to have special knowledge of patients health-related wishes Guardianship of Schiavo (FA 2001) p. 325 A courts default position must favor life. Here, a small number of oral statements was sufficient to establish what Schiavos wishes were. Superintendent of Belchertown State School v. Saikewicz (MA 1977) p. 334 substituted judgment doctrine is the proper way to maintain the integrity and autonomy of the individual. In re Storar (NY 1981) p. 336 parent may not deprive a child of lifesaving treatment, however well-intentioned (and even when the child (or mentally retarded adult) would die in 3-6 months from bladder cancer anyway). Modes of analysis: Patients actual statements Express wishes Substituted judgment Best interest analysis question of what is a life worth living Competence v. capacity Competence dont use this anymore legal descriptor for people with diminished capacity to take care of themselves youre either competent or incompetent, very black and white Capacity - can change over time (ex old people lose decision making capacity over the course of the day) Authority to appoint a guardian does not last forever usually will be periodic reevaluation of capacity 3 categories of authority types of decisions: Healthcare Lifestyle Financial Done for preserving as much of the AIPs autonomy as possible

(see article 81) Ex prostate cancer treatment is complicated (see first class notes) Person with diminished decision-making capacity may have trouble making correct decision Most complicated option what treatment to do Least complicated decisionmaking capacity whether or not to let somebody else make the decision 2 criteria for assessing capacity to appoint somebody be able to name someone, person has to be alive Suppose person names a caretaker that is dead can you then ethically get another viable answer from them? One approach sorry, this person is dead, is there somebody else you would like to approach? Drawbacks could traumatize the person could just forget it So, how do we decide if somebody is competent to make this decision, after theyve already decided they have impaired memory? Ask why did you pick that person? find out if they have a mental process going Standard 4-step process First need capacity for factual understanding Second manipulation of facts Third need to be able to apply that information to their own situation Fourth patient has to be able to make a decision Fourth step is often the hardest to evaluate usually, if you pass the first three steps, you seem normal, even if you cant pass the fourth test Woman in labor, where baby is in distress, refuses to have C-sectoin Does she have decision making capacity? What is the default position on decision making capacity? Capacity is to be presumed unless judicially or clinically found incompetent Ethically when a clinician is faced with a patient, unless you can diagnose capacity, the default position is effectively that the patient does NOT have capacity She says she doesnt want her baby to die, but wont have the c-section She is being irrational statements are in conflict

Could have been disagreeing with the doctors risk assessment, but she wasnt really there was just being contradictory Being sued for malpractice always measure yourself against the norms of the profession Hypo man on bridge talked off bridge by cops, brought to ER, isolation room, take the handcuffs off, lock the door from outside, call psych in to talk to patient, he is difficult, they call you, a lawyer in He says its a misunderstanding Does he have the ethical right to go home? We dont deprive people of their liberty medically unless they determine that they lack capacity What does it take to decide that a person lacks decisionmaking capacity via mental illness? What mental illness warrants depriving a person of liberty, on medical grounds? Was he actually trying to commit suicide? If so, was his attempt due to his mental illness? Did he have a rational, reasoned basis for decision to commit suicide? Does he believe his condition is untreatable, when it is actually treatable? Next question what is the informed consent requirement for doing a psychiatric evaluation of an allegedly suicidal patient? 9/22/11 INFORMED CONSENT AND REFUSAL OF TREATMENT Text: Chp 5, sect I-III Legal research NYS and 1 other states informed consent statute Angel health care proxy Text: I. intro Every question in bioethics, we must make 2 determinations: 1. who should be authorized to solve the problem 2. what substantive principles should apply Consider what role individuals, families, hospitals, health care professionals, courts, legislatures, and others ought to play in dealing with the ethical, medical, legal, social, and political questions that exist because of our medical capacity. II. the US constitution and the right to die Cruzan v. Director, Missouri Dept of Health (US 1990) p. 247 Because there was no clear and convincing evidence of the patients desire to have life-sustaining treatment withdrawn if she were to have no chance of recovering her cognitive facilities, her parents lacked authority to effectuate such a request. The US constitution does not prevent a state from requiring clear and convincing evidence. Must remember that the consequence of incorrectly allowing her to die is much, much more severe than the consequence of incorrectly allowing life. Dissent: she is entitled to die with dignity.

III. Patients deciding for themselves Bouvia v. Superior Court (CA 1986) p. 262 An adult in sound mind has the right to refuse any medical treatment, even that which may save or prolong her life. However: the right to forgo such treatment is not absolute. Four countervailing state interests: (from Superintendent of Belchertown, above) 1. preservation of life 2. protection of interests of innocent third parties 3. prevention of suicide 4. maintenance of the ethical integrity of the medical profession However, these four interests have never been found to be sufficient to overcome the choice of a COMPETENT patient. the interest of the state in prolonging a life must be reconciled with the interest of an individual to reject the traumatic cost of that prolongation. Dissent in Cruzan offended by notion that the generalized state interest in life could overcome the liberty interest to forgo lifesaving treatment. Ones rightsmay not be sacrificed just to make society feel good. right to refuse treatment generally comes from state common law, usually informed consent you have the right to not consent. Some states bolster it with reference to either the state or US constitution. (p 272-273) Right to refuse treatment for religious reasons: Application of the president and directors of Georgetown College, Inc. (DC 1964) p. 274 Jehovahs witness in desperate need of a blood transfusion was not allowed to deny a blood transfer. the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. The woman here was as incompetent as a child to decide. If parent cannot order treatment course that would let a child die, he cant do the same thing for his wife, either. Also a factor for the ordering of the transfusion was that time was a factor. I determined to act on the side of life. Public Health Trust of Dade County v. Wons (FL 1989) p. 277 Woman could not be ordered to receive transfusion; her constitutional rights of religion and privacy could not be overridden by the states purported interests. The right of her two kids to have a mother does not override her interests, either. Issue of capacity to issue of consent and refusal Our friend on the bridge guy looked like he was going to jump, now insists hes fine 2 things to be sensitive to -either he says exactly what he thinks you want to hear -he may refuse to say anything

Worry he may leave and go try to kill himself again this is a conflict of interest whats good for you, vs whats good for the patient Question what is the default position? Paternalism or autonomy? Moral basis for keeping patient? -circumstances indicated patient was going to do something bad, which would make paternalism the better option How do we break the deadlock? In NY need to get informed consent before evaluating him Patient who has capacity has all of the rights a person should have, including the right to informed consent Person without capacity has what rights? -rights to appoint guardian Must evaluate each person to determine if they have capacity What if hes giving you nothing to go on, and you have no basis for concluding he was trying to kill himself If you tell a patient who has been brought in that they have A. the right to refuse to speak, and B. any information that they share will be used to determine if they are a danger to themselves/others, which will affect if they can go home Eventually, you will have to let him go You need to have a basis for your conclusions and your actions deciding who has rights and who merely needs to be protected If the patient has decision making capacity, then the person is entitled to know why things are happening In virtually every state statutory right of informed consent only applies to invasive treatment (surgery, implants, etc) As a practical matter when a patient is brought to a hospital, we dont adopt the police officers diagnosis (because cops dont make diagnoses) to do so would be malpractice Doctors and ethicists have to respond to the expectations placed on them by society to make judgments, especially when people who are a danger to themselves/society are concerned

Rule however an individual gets presented to a physician/psychologist clinician must draw some conclusion based on whatever information is available. Clinician also has obligation to make the best decision he can must get as much info as possible Imperative for the clinician obligated to get the patient to say SOMETHING before you can start making a decision Everything for the rest of the semester walking the line between paternalism and autonomy -enormous power that health care providers have over people especially people labeled by the police as having a problem raises the issue of coercion Tricky part about informed consent how much information does a doctor need to provide? If doctor is TOO thorough, nobody would ever undergo medical treatment What do you tell them -risks they want to know? -risks you would want to know? -everything? -everything that might make them change their position on having the surgery? Does the PATIENT have to be informed? Can the patient just say, I dont even want to choose, I want you to decide? There is a problem with that inability to make a decision is different from not wanting to make a decision Does the RIGHT of informed consent create an OBLIGATION of informed consent? How do we deal with stubborn patients Guy with gangrenous toes if patient says no, I dont want to die but refuses treatment patient does not have decisionmaking capacity If they say yes find out why Is patients decision internally logical? How much reasoning do you need to have to have the doctor say sure, you can refuse to get treatment Sometimes we let patients make bad decisions Sometimes we conclude that disagreeing with the treatment plan is an indication of a lack of decisionmaking capacity Can we let a patient waive his right to IC without knowing the benefits/risks of the alternatives? Doctor has to articulate to the patient how the doctor arrived at the decision which is to say, the doctor balanced the risk/benefit of each alternative so the patient has a chance to dissent

a doctor involved in a patients treatment cannot be the patients agent; however, a patient can say that hell do whatever the doctor recommends, which achieves basically the same purpose rule exists to try to prevent people from being conflicted but there is an end run around this Situations where person is unable to express their wishes Living will Health care proxy We use the least intrusive means to determine the wishes Must ask is the patients incapacity transient? Is the decision that needs to be made urgent? We only turn to proxies when a patient is unwilling/unable to make decisions for himself First ask the surrogate to make a decision on the basis of a patients previously expressed wishes Next substituted judgment ask surrogate to project forward what they know about the patients wishes in one situation to the situation the patient actually finds themselves in Finally if cant do anything for substituted judgment, do best interest analysis I have no idea what the patient would want me to do in this situation, so Im going to do what I think is best for the patient General definition of terminally ill dying w/in 6 mo Dont draw a distinction between withdrawing and withholding CLASS 5 THAT I DONT THINK ACTUALLY HAPPENED - DECIDING FOR CHILDREN TEXT: Chp 5, sec V and VI Angel: the case of AB (summarized: mother was allowed to discontinue life-sustaining medical treatment for child in persistent vegetative state, but only because the best interest test had been met allow her daughter to pass away peacefully and with dignity. Parent proved by clear and convincing evidence that it was in kids best interest to remove the mechanical ventilator weighed burdens of prolonged life vs. any pleasure, emotional enjoyment, or intellectual satisfaction. Legal research: Fosmire v. Nicoleau, 551 NYS2d 876

Chapter 5 V. DECIDING FOR CHILDREN Newmark v. Williams (DE 1991) p. 342 parents had the right to prevent their child from getting an aggressive chemo treatment, even when the child was certain to die without the treatment. 3 yo kid with aggressive cancer and Christian Scientist parents. Parents refused to let kid get treatment. -autonomy of parent/child relationship is important however, it is not an absolute right. In this case, the court must substitute its own objective judgment to determine what is in the kids best interests.

-court considers effectiveness of treatment, chances of childs survival w/ and w/o treatment; also considers nature of treatment and the effect on the child Factors to use when deciding whether to withdraw life-sustaining treatment from child (p 350) just look in the book, theres a bunch. Courts will often listen to the wishes of young children, even if their parents technically have the legal standing that they lack. (p 351) VI. LETTING THE DOCTOR DECIDE A. futile treatment what is futile? Two sources to consider hospital policy (see p 355) and state statute (also see p 355). Book talks about 2 types of futility scientifically/medically futile cannot achieve the medical result that is expected by the patient/family making the request. This need not be offered to a patient. Ex if cancer patient requests drug that has no effect on cancer, hospital does not have to provide it. Ethically futile treatment is ethically futile if it will not serve the underlying interests of the patient. Ex some people believe it is EF to provide oxygen/food to a person in a persistent vegetative state. B. decision-making for newborns principle of beneficence becomes primary b/c there was never any autonomy must determine what is in the best interests of the child Miller v. HCA (TX 2003) p. 365 although generally, doctors cannot operate on children without the parents consent, court makes exception here, because A. full medical evaluation of fetus was not possible until after birth, and B. once the child was born, the physician present faced with exigent circumstances that warranted treatment. Parents said that they did not want heroic measures taken to sustain the life of their child, who looked like it was going to be born severely premature. The doctors took some of these measures, and saved her life, except she was born and lived with horrible, horrible deformities and disabilities. Fosmire v. Nicoleau (NY 1990) printout the state does not have any interest that requires a competent adult to be given blood transfusions against her will, even if it has the interest of her newborn child in mind. Pregnant Jehovahs witness didnt want blood transfusions, even when she lost a lot of blood during c-section birth. After the birth, still refused; hospital got court order ordering transfusion. Class 6 Death and Dying Text: Chapter 4 Angel: As a Life Ebbs Text: I. problem when does death occur? (intro) Is it the ceasing of heart, brain, lung function? II. development of brain death definition A. There can now be heart/lung function with no brain function. Kansas tried to come up with a new definition long (see p 220) B. Uniform determination of death act (1980) (not adopted universally) person is dead if

1. irreversible cessation of circulatory and respiratory functions, or 2. irreversible cessation of all functions of the brain, including the brain stem. A person may be charged with murder if his victim could have been kept alive, or if the plug was pulled so that the person could donate organs. C. Higher brain death see p. 224 UDDA establishes whole brain standard for death some people think it should just be for higher brain function this would create more organs for donation III. dead donor rule and expanding classes of organ donors In re TACP (FL 1992) p. 226 An anencephalic newborn is not considered dead for purposes of organ donation, even though the condition is invariably lethal and the organs will not be suitable for donation upon complete brain death. If the heart/lungs are function, there is no death. (See the redacted AMA suggestion on such donations, p 230) In re Baby K (4th circuit 1994) p. 235 Hospital is obligated to prove respiratory support to anencephalic infant when she is presented at hospital in respiratory distress, even though hospital does not think this treatment appropriate given the babys condition. EMTALA Emergency Medical Treatment and Active Labor Act requires stabilizing treatment for any individual who comes to a participating hospital even covers anencephalic babies, apparently. As a Life Ebbs see notes from 10/18 and 10/27 classes.

10/18/11 Class 7, I guess? SUFFERING AND END OF LIFE CARE TEXT: CHAPTER 5, SECTION VII LEGAL RESEARCH FLORIDA V. SCHIAVO Text: 5/VII PHYSICIAN ASSISTED DEATH A. CONSTITUTIONAL BACKGROUND Washington v. Glucksburg (US 1997) p. 374 Washingtons prohibition against causing or aiding a suicide does NOT offend the 14th amendment (specifically, a liberty interest in it). Ethical reasoning -protecting integrity/ethics of medical profession -interest in preservation of human life -suicide is serious public health problem -state may fear going on path to euthanasia Vacco v. Quill (US 1997) p. 385 NYs prohibition on assisting suicide does NOT violate the Equal Protection Clause of the 14th Amendment. -basically said that patients being allowed to refuse life-saving treatment, and those seeking help in committing suicide were not the same thing in a way that would create an EP clause violation. Difference intent first case, intent is not to kill the patient. In the second, it is. because of vs. in spite of. B. LEGISLATION TO SUPPORT ASSISTED SUICIDE DEATH WITH DIGNITY INITIATIVES -see Oregons death with dignity thingies, starting at p. 393 Dax case:

Dr. White what could he have done differently (in the late 70s in Texas)? -one doctor cannot overrule what another doctor says -could have gotten Dax a real lawyer lawyer advocated for the mother, not for Dax; did make sure there was a lawsuit against the gas company failed to advocated for autonomy of patient What does a lawyer do when a patient is suffering at the hands of another? -go to court cite their own body. Doctors argument he would be happy to be alive, once treatment was finished Dax said he would still want the choice, even though he was happy to be alive Should his initial request to die have been honored? -request of farmer? No. not in sound mind. -request in little hospital (asked to be left alone to die) prof says that at that point, could not have made informed ethical judgment -request at parkland (tanking treatments) pain is entirely subjective. No good method of comparison When you should have let Dax choose to die: maybe right before the second tanking treatment? Right after first treatment, judgment too clouded by pain What philosophical frame allows us to decide how much pain to subject Dax to before we can decide that his desire to die is genuine, consistent, and justified? Kant principles what is principle? Save life at all costs? Mills Utilitarian balancing Daxs pain/potential benefits Perception of pain vs. perception of life quality after patients tend to overvalue pain and undervalue life living with their disabilities Rehab doctor particularly conflicted because he often saw people at very low point in lives, who end up improving drastically Not doctors jobs to take mothers interests into account look to parents of child to make decisions, but EXPLICITLY require the parent make decisions based on childs interests. Two perspectives that nobody outside ____ group can understand -childbirth no man can understand -watching child suffer What was mother thinking? -religious beliefs probably not an option to let him die How does a bioethicist take into account religious beliefs of parent of adult?

Schloendorf (sp?) every person has right to control what happens to

doctors dont question decisionmaking capacity of patient until he disagrees with the treatment plan What about a catholic hospital, where theology drives the decisionmaking process? What about where a Jehovahs Witness parent refuses blood transfusions for his or her child, is that a religious decision or a medical decision? -medical if there were an equally effective medical alternative -Sometimes religious, if the transfusion is the best option. Phosmir v neglosi (?) see the syllabus. Rierden went into hospital for hernia repair, developed infection, woke up from surgery, experienced horrific pain, which got worse as the infection spread they put her into a chemically induced coma, antibiotics didnt work, decided they had 2 options amputate arms and legs, or let her die. 2 children son and daughter Daughter was caregiver, son had bad relationship with mother Son says (wanting to reconcile) go ahead and amputate Daughter says we should just let her die Neither was designated health care agent no system for choosing between siblings First thought should always be to try to compromise/educate outlying family member Can you wake her up, give epidural, then ask her what to do? How do you know she will be in good state of mind? How long after you wake her up do you tell her whats going on? What if both kids say dont wake her up? Remember we only turn to surrogates when there is a decision to be made, and patient does not have decisionmaking capacity What is the default position on the therapy? Doing the amputations Arent you dumping responsibility to kill yourself on the patient? What about waking her up and then asking her who she would like to make decisions for her? So, what if she cant be woken up without being in excruciating pain? Youve gotten a ton of info what info are you trying to figure out? -what she would do (substituted judgment) Next week: what if you have no idea what her values were? 10/27/11 Suppose you cant anesthetize Mrs. Rierden high up enough because you will paralyze her lungs you wake her up after anesthesia, her legs are numb but her arms are not, and shes writhing in pain Do you put her back under? Central issue how much pain?

What would a utilitarian analysis of this problem look like? Balancing her horrible pain vs. the ability to make the right decision for her/have the right decision made by her doing whats right might not always be whats nice -the correct answer, sometimes, involves subjecting somebody to a lot of pain I think that if she can respond, you should talk to her What if shes in too much pain to respond? Put her back to sleep Then, what do you do about the opinion of: Daughter dont do amputations Son mother would want to live, do the amputations Our job is not to determine the more valid perspective, but to determine the patients perspective however, it is very rare for somebody to go in without their own perspective Good idea find out why they each think their mom would agree with them Good idea for an exam question answer always, always seek to find out what treating physician would say, or other people who would have a clear idea what the patient would want In really close situations, you err on the side of life monitor is code for procrastinate Back to Mrs. Rierden: Is daughter a more credible source of information than the son? Argument that she isnt? shes emotional, maybe more likely to project Mediation is an option frequently effective way of getting people to understand the difference between their own values and an insight into the patients values On exam - Opportunity to recognize this distinction between legalistic approach and (non-legalistic approach?) ----One question same basic question every year

Is the value of a life inherently worth considering more than the suffering in that life, or is the value of the life balanced by the suffering? This is a theological question more than an ethical question Humans have a remarkable capacity to adapt to circumstances and find some good (see: Dax Cowert, even though he still believes they should have let him die)

PHYSICIAN-ASSISTED SUICIDE

This is different than withdrawing treatment: 1. you are the ultimate change agent 2. goal is death In the absence of patient input, this is called a mercy killing or euthanasia There is a difference between euthanasia and assisted suicide (former, no input from person; latter is at their request) One reason people want assisted suicide worried that if they try on their own, theyll screw it up Why are doctors the gatekeepers (to drugs, and assisted suicide in general) -they control the drugs Why shouldnt they be? -they are trained to save lives, not to end them -theyre not supposed to do harm doctors argue that it harms them professionally to have them attached to killing -society has an interest in preserving life -if assisted suicide is available, maybe more people will use it to relieve their families of the burden of caring for them There is a coercive effect just in being old and sick, and feeling like they dont want to be a burden 1/3 of all health care dollars go into last 30 days of life Equal protection argument people with life-threatening condition that requires support have a right to withdraw the treatment (effectively killing them) but a person who wants to die cant get life-terminating treatment -this fails everybody has right to withdraw treatment, nobody has right to assisted suicide -emotionally very different to leave someone in a bed to die than to take something away from them Two big cases about assisted suicide: Decline to let due process (Washington v. ) or equal protection (Vacco v. Quill) clauses allow it You dont have right to avail yourself of drugs that only doctors have access to, so as to kill yourself more efficiently (suicide is NOT illegal, however) Judicial conservatism make as narrow a decision as you can Many on the court say that they could, potentially, consider that the patient should be allowed to be assisted in killing themselves, if doctor will say that they have done everything that can be done to relieve pain (short of assisted suicide)

Oregon decides to create a statutory scheme to ensure that patients get all available pain management, and if after which they still want to die, they will consider physician-assisted suicide to be ok States are starting to open up to the idea of modifying the Oregon approach to fit their own One idea decriminalize it and stop talking about it, do it on the sly, nobody has to know Argument equal protection clause issue, people with longstanding doctor relationships (i.e. people with health insurance) will be able to have PAS, and those without, wont. Scope and limitation of pain management? -usually means morphine There is a point in dosing where you have achieved the maximal therapeutic effect without affecting the respiratory drive Some patients need a lot of morphine, where this will affect their respiratory drive, to the point where this may shorten the patients life (this is a double effect) It is definitely PAS if the patient says give me enough morphine so that I dont feel anything, and if it kills me, thats fine, and doctor does. When the level is affecting the respiratory drive, but not enough to kill this is in the double effect zone relieves all pain, and puts the patient at risk of dying from respiratory failure In doctors head Im not trying to end my patients life, but Im not concerned about it, either

11/3/11 Family Health Care Decision Act making decisions for an incapacitated person In ____ NY finally passed the law (google pamphlet deciding about health care) Formerly wrt incapacitated patients, life-sustaining treatment could only be withdrawn if there was clear and convincing evidence Now: it can be withdrawn if family agrees Other law on books Family Health Care Proxy required completed piece of paper naming a person as agent, and required that this person be with you at the hospital We were the only state besides MO without some sort of default statute on the books, listing a hierarchy Applies to patients in hospitals, nursing facilities; not in home Doesnt apply to patients that have capacity Decisionmaking capacity ability to understand/appreciate consequences of health care This is decided based on the type of decision may have capacity to make one decision, but not another Attending physician decides if patient has capacity, in a hospital In nursing home, or if decision is based on person having some mental illness, a second physician will need to make a concurring decision Patient must be given notice that they have been determined to lack capacity Hierarchy of surrogates:

(?) Spouse or domestic partner Son/daughter (adult) Parent Brother/sister Close friend (18yo, friend/relative of patient, familiar with patients beliefs, presents a signed statement saying so) They can agree to withhold treatment if -would be extraordinary burden and -physician determines patient is terminally ill (die w/in 6 mo) or patient is terminally unconscious In nursing home - ethics committee must also confirm that treatment would include such pain and suffering that it should be withdrawn Some minor procedures do not require consent ventilator support, minor dental procedures, etc Ethics review committee 4 out of 5 positions are dictated 3 instances when committees decision is binding: 1 2 3 There are still conflicts between proxy law and health care law, they are working to resolve them Random Ugli Orange exercise: 11/10/11 notes scribbled in book. REPRODUCTIVE TECHNOLOGIES TEXT: CHAPTER 2 ANGEL STEM CELL ARTICLE CAN WE BENEFIT FROM EVIL? (see illegible book notes) Text: I. Intro II. When does human life become a person? A. The attributes of personhood List on page 26 15 factors (by Fletcher) Austin (1989) biological discussion B. Legal Recognition of the Beginning of Human Life 1. Constitutional no language really targeted at the prenatal. A state can define fetal rights, but these are not the 14th amendment rights of persons. 2. Statutory courts generally consider killing a fetus different than killing a person who was born alive. However, some states have started making the penalties identical. Others use the term unborn child to give the fetus a higher place in the law.

State v. McKnight (SC 2003) woman guilty of child abuse for prenatal cocaine abuse that killed fetus. People v. Kurr (MI 2002) ok to use deadly force to defend fetus. 3. common law fetus allowed to recover under state survival and wrongful death statutes (PA 1985). Many states now distinguish between viable/pre-viable fetus for these purposes. III. Medical Intervention in Reproduction A. Limiting Reproduction 1. Govt prohibitions on reproductions some people argue there is a moral obligation to prevent the birth of genetically diseased or defective children. 2. Contraception Griswold v. CT (US 1965) doctor/planned parenthood official cleared of charges of distributing contraceptives people had privacy right which allowed them to get the contraceptives. (see p 41, a variety of reasons for the decision/concurrences) -many reproductive devices dont prevent fertilization, but prevent fertilized egg from implanting (discussion of Plan B (contraception) vs. RU-486 (abortion)) Problem pharmacist choosing not to dispense emercency contraception (p. 44) 3. Abortion Roe v Wade (US 1973) TX statute that exempts from criminality only lifesaving abortions on behalf of the mother, without regard to pregnancy stage/other interests involved, is unconstitutional b/c of Due Process clause. Planned Parenthood of Southeastern PA v. Casey (US 1992) p. 53 cutoff for legalized abortion is at time of viability (?) state can require a minor to get consent, but cannot require a married woman to notify her husband of her impending abortion. PA act required that woman give informed consent prior to abortion, and that she receive info over 24 hours before the abortion. Minors must have parental consent unless there is a judicial bypass, and women must usually inform their spouses. Medical emergencies create exemptions from these rules. Gonzales v. Carhart (US 2007) p. 62 Partial-Birth Abortion Ban Act of 2003 found constitutional. 4. Sterilization Sterilization of mentally incompetent is technically still good US SC law (Buck v. Bell) but still probably frowned upon after WWII, anything resembling eugenics is a tough sell. Courts generally act to protect the mentally retarded from sterilization if there is any less restrictive alternative. 5. Tort remedies for failed reproductive control: wrongful birth/life/conception Smith v. Cote (NH 1986) p. 87 NH allows actions for wrongfulbirth (damages are the extraordinary medical/educational costs of raising the child). There is no action allowed for wrongful life. Distinctions: Wrongful birth brought by parents of child w/ severe defects, against physician who negligently fails to inform that child will likely be born with such defects. Wrongful life brought by/on behalf of child, contending that physician negligently failed to inform parents of risk of bearing defective infant. B. Assisted Reproductive Technologies Can result in more than 2 parents 1 sperm donor, 1 egg donor, one woman to carry baby to term, and a set of parents to take care of the baby after birth.

2. Artificial insemination Uniform Parentage Act when woman received sperm from a man not her husband, the husband is treated as the biological father. Semen donor isnt. Birth records are to be sealed. (see page 105) In the Interest of KMH (KS 2007) p. 107 A written agreement is required for a male sperm donor to have parental rights, according to state statute this is constitutional. Sperm donor claimed he had an agreement with childrens mother to act as their father. Court says: Not unless it was in writing. Encourages sperm donation by prevents donors from getting legally bound to support child protects men and women both. 3. In vitro fertilization, egg transfer and embryo transfer Davis v. Davis (TN 1992) - p. 123 the interests of both parties must be balanced to determine what is to be done with frozen embryos, where there is a disagreement over what to do with them. Divorcing couple had 7 frozen embryos from prior attempt at IVF. Woman wanted to be able to donate them to a childless couple; he wanted them discarded. -embryos are considered somewhere in between persons and property. -man and woman must be considered entirely equivalent gamete-providers. 4. Natural and Gestational Surrogacy In the Matter of Baby M (NJ 1988) p. 134 contract requiring that a surrogate mother give up the rights to the baby to the natural mother and father is invalid; the surrogate is deemed the mother. (genetic mother and gestational mother are the same) -almost all the evils of paying for adoptions are present -3 categories of arguments against surrogacy: those related to parents, to child, and society as a whole (see p 139) Johnson v. Calvert (CA 1993) p. 140 when different genetic mother and gestational mother are at odds over who is the natural mother, look to the contract to determine the intentions of the parties (here, the intent was for the natural mother to keep the baby)(genetic mother and gestational mother are different) Prato-Morrison v. Doe (CA 2002) p. 150 best interests of 14-yo twins are for their possible genetic parents to not intrude upon their lives to discover if they are, in fact, their biological parents. 5. Cloning and stem cell research Reproductive cloning v. therapeutic cloning - just read the stuff in the book, and the article about how stem cell research is evil. IV. Fetal Maternal Decisionmaking A. Decisonmaking for pregnant women In re AC (DC 1990) p. 167 when a pregnant woman is near death and has a viable fetus, she is to make the decisions for the baby. If she is unable, then her decision must be ascertained via substituted judgment B. The Criminal Sanction State v. Wade (MO 2007) p. 177 - no cause of action for state against mother who harmed her baby by ingesting illegal drugs while pregnant. -state has chosen not to punish mother in this way difficult to draw line at what behavior can be prohibited for pregnant women.

C. The fetus as litigant Wixtrom v. Dept of children and Family Services (FL 2004) p. 181 as FL statute did not explicitly or implicitly provide for a fetus to be appointed a guardian, one could not be appointed. 11/17/11 MS just tried to define personhood as starting at fertilization (failed) Creates huge abortion barriers, obviously. Duty to person to not drink, smoke, etc. Implications for embryos created in in vitro fertilization Cant destroy them Obligation to try to implant them? These issues didnt get much discussion in MS Interesting this measure failed surprising that this would happen in MS We can come up with reasonable solutions for many problems in medicine, but will probably never reach any sort of consensus on how to deal with the difference of philosophy/theology around abortion/personhood rights of embryos If this law passed anywhere, it would likely make it really difficult to utilize in vitro fertilization less babies. MENTAL ILLNESS Problem with the way we discuss mental illness/intellectual deficit most people immediately think of the more extreme circumstances of mental retardation In reality bioethics of mental illness usually dealing with diagnoses and syndromes that are virtually invisible The Yellow Wallpaper woman taken to country by doctor husband to get some rest she had fatigue End of story wallpaper was taunting her she starts attributing sinister motives to the wallpaper because she is skitzo (both under and overdiagnosed) What must we start our diagnoses by acknowledging? (where did Dax doctors go wrong?) -they assumed he lacked decision making capacity; because of his injuries, he wasnt thinking clearly They decided anybody who had gone through what Dax went through couldnt be in his right mind. At end of day (i..e this class) we should understand that the desire to protect people from themselves is the goal of a lot of the law of bioethics, and this is what gets us into trouble Simple, but impossibly difficult question:

Why do we presume to have both the right and obligation to protect people from themselves? -doing what they would want -we would want people to do the same (Kantian) -professional obligation -obligation to society -desire to not let people die/hurt themselves -make one person well so that you feel like you can make yourself well So, then, why do we have NY 9.39 and equivalent laws? What is purpose of civil commitment/confinement law? Do we NEED a law? -yes protects medical practitioners when they deprive person of their liberties So what is being balanced in the process/procedure of 9.39? what values compete in the existence of the laws? Balancing paternalistic methods of protecting people from themselves vs. their liberties 2 doctors, each of whom conducts independent examination, can only keep you initially for 24 hr then 3 days, right to hearing READ THIS STATUTE FOR THE TAKE HOME TEST So, what are we trying to ensure? Making sure we get the balance right, in the most effective/appropriate means for each individual patients circumstance How should doctors decide who should be involuntarily committed? Want to protect, to fullest extent, the range of human discretion (I like to drink, but not necessarily to kill myself), while protecting against people who are dangers to self or others (prof says its disturbing that self or others are lumped together others should be a separate category) Now, lets just talk about danger to self Law says you can commit somebody via 2PC 2 physician commitment if they are a danger to themselves How long can we detain a person? Kant would say there is no answer Mills What should we be doing while we have somebody locked up? Trying to both diagnose condition/determine the extent of the patients awareness/acceptance of their condition/trying to convince the patient to agree to stay Are all forms of emotional deficit (?) treatable? No. The answer to the question how long? is 2PC tolerable? The period of time during which there is a good faith belief/suspicion that the patients condition might be responsive to treatment, up until the time you belief that a patient is not amenable to treatment. After that point, its not treatment, its incarceration.

Should we be locking people up for the rest of their lives if they might kill themselves? The whole ethical construct of involuntary commitment is to bring the person back to the earlier, steady state of wanting to be alive, and glad that they didnt kill themselves. Do we think the situation in which they dont want to be alive is transitory/treatable? Is there a reasonable timeframe in which it is treatable? What about the danger to others part? Look at The Cop and the Therapist (the road to hell is paved with good intentions) Cop mentions fantasies of shooting other cops one therapist warns the department Stone gets sued, is laughing stock of profession What is benefit of waiting? Finding out if he was really homicidal Detriment of waiting? He might have actually gone and killed somebody. What happened to Stone is the dark side of Tarasoff in Tarasoff, 2 cases in CA where therapist knew patient was obsessed with this girl; he told therapist that he was going to kill the girl, therapist told cops but nobody told the girl, and then patient killed the girl court said it was incumbent upon therapist to protect 3rd party There are 2 ways: 1. call the police (like dr. stone did) this is a breach of duty of confidentiality Justifications this isnt as bad as deprivation of liberty Better than doing nothing at all 2. have them involuntarily committed deprivation of liberty Justifications doesnt automatically destroy life can continue career after commitment Patient wouldnt be lost to treatment In CA there is a duty to warn 3rd parties when a therapist has a reasonable belief that the patient is a danger to said 3rd party. This violates the duty of confidentiality. In retrial court says that duty to warn is inadequate therapist has duty to protect 3rd parties when the therapist has good faith belief that the patient is a danger to 3rd party therapist has affirmative duty to take steps to protect 3rd party from harm Ethical lesson to learn when faced with a choice between 2 terrible options, follow the basic rule of do as little harm as possible. Either A. involuntarily committing or B. use threat of involuntary commitment may be the most respectful/effective approach, to accomplish therapeutic objectives and keep yourself out of trouble At end of commitment, doctor must reassess There is no hard and fast way of reasoning to the result of breach of confidentiality v. breach of confidentiality

What went wrong for dr. stone: once you pick up phone and violate trust, youve lost control of the process. 11/22/11 donor designation organ donor community has decided that if somebody wants to be an organ donor, nobody elses opinion matters. Their obligation to patients outweighs the concerns of the patients family members. For years organ donation community had disregarded the wishes of the dead when the living family members objected, because they didnt like getting bad press. (This usually happens in a familys moment of grief) Why? Fear of saying no Also people are afraid to create strife between wishes of decedent and the family Person signing organ donor card doesnt want to put family member in that position why do we even need somebody to sign? New answer: WE DONT. New plan: we dont ask the family. (we do tell the family, and if they object, we will give them counseling, and while they are in counseling, we will take their organs) Nationwide: 112k people on organ donation waiting list. Every 10 min, somebody is added to the list. About half the people on the list will die on the list. On the list, who gets the organs? -the person who made it onto the list who is closest to falling off the list. salvageability is taken into account. -people, back in the day, who decided who would get to use the limited number of dialysis machines God committees would often decide that people who had self-inflicted conditions (i.e. liver damage caused by drinking) were lower on the priority list they came to realize that this would not produce a just result. We have a national system of healthcare in only two respects kidney failure, and emergency management. We have a shortage of organs, not because there is a shortage of people dying; the problem is the shortage of donations. The goal is getting 50% of people to agree to be donors Problem organ donation has not been going on for so long We can regrow our livers you can take a part of somebody elses liver and put it in somebody else, in a couple of years, both will have full size livers. Kidneys and livers can be obtained through living donors. Traditional, (brain)dead donors can be brought down to OR while still on ventilator dont shut the ventilator off until they are ready to make the incision to remove the organ want them to be fully profused (oxygenated). This is how organs were obtained until the 50s until about 1995.

We could address the organ need if we got more people to sign up, and then we wouldnt even need to worry about the familial veto. We didnt, though. Physicians started looking for other ways to get organs DCD donation after cardiac death (under very narrow/controlled set of circumstances) -Taking an otherwise living person (i.e. not brain dead, but maybe in a coma, or sedated somehow) under own power, or ventilator dependant (but not brain dead) wheel them down to OR, and withdraw whatever means of intervention is keeping them alive, and then wait for their heart to stop. Wait another 5-10 min to see if their heart starts again. If over 60 min passes, then organs are unsuitable for transplant. Remember, 2 forms of death Whole brain higher brain and brain stem Cardiopulmonary irreversible cessation of heart and pulmonary function When cant you reverse a death you have induced? (break) So, we can transplant from dead people Live people for livers/kidney From brain-dead people Non-brain-dead people, when loved ones consent to withdraw some intervention transplant surgeons are not graded on social skills. Can be callous/despicable human beings. So, for patients on, say, ventilators who can decide to withdraw ventilator support from a non-braindead patient? First: patient. ALWAYS START YOUR ANALYSIS WITH THE PATIENT Patient can refuse a life-sustaining intervention by: 1. proxy form 2. tell the doctor DCD we never talk to patients about DCD until they bring it up. Theres no gentle way to bring it up, and you dont want to create the impression that all the hospital cares about is harvesting organs. Second: anybody legally authorized to dispose of the body. (if there is nobody higher up on the prior list, then the administrator of the hospital has the legal right/responsibility to dispose of the body.) organ donation law says that if you have the power to dispose of the body, you have the power to donate the organs. (No legal obligation to donate, but a moral obligation to do so.) Directed donation when you donate your organs to a particular individual. Very common for living donors. However, you cant SELL your organs (overtly paternalistic). Compensation for donating organs can be compensated for hotel stay, expenses incurred

Organ procurement organizations are prohibited from providing anything to families in exhcnage for their consent. However, they have gone out of their way to let hospitals know that nothing stops THEM from paying something to families (funeral expenses, etc) when they decide to be organ donors. Can game the system by buying a friend This is so common that some in the bioethics community think we should do away with the pretense of requiring a directed donation to be to a family member/close friend the system is subject to abuse, and the goal of keeping all donations for altruistic reasons is not working. Results in form of economic discrimination, only the wealthy can get transplants. There is a presumption against donation default position is that you are not a donor In Europe, the opposite presumption exists unless you say something, you are considered to be an organ donor. 2 issues 1. objection to reversing the presumption people might not realize that if they dont take some affirmative step, they will wind up becoming organ donors when they dont want to. Could maybe get around this by requiring everybody, upon turning 18, to read some document saying that they are presumed to be a donor. The 10% who DONT want to be donors they are the most likely to express this, somehow. This is easier b/c of use of databases now Would yield enormously more organs However creates large numbers of poor people who may be donors, but dont have good enough medical care to diagnose their need for the organs. (professor says he used to be for reversing the presumption, but now he thinks we shouldnt reverse the presumption because it puts us on a slippery slope that creates some incentives that we dont want to contemplate) 2.