Are We Reaching the Bottom of the Slippery Slope? Commentary on Asai, Hughes and the Feron Case

- Frank J. Leavitt, Ph.D.

The Jakobovits Centre of Jewish Medical Ethics
Faculty of Health Sciences, Ben Gurion University of the Negev, Beer Sheva, ISRAEL (Home Tel/FAX: +972-2-9963048)


Eubios Journal of Asian and International Bioethics 6 (1996), 101-103.
There was a funny but tragically true story in the BMJ a couple of years ago by a physician who told a patient he was terminal, and then found out he had the wrong patient (1). I don't want to spoil the story for those who haven't yet read it, but it illustrates one of the dangers in oversimplistic attitudes to informed consent and truth telling. You might have the wrong patient.

Also: the physician might have the wrong diagnosis, or be wrong about the best course of treatment. People have lasted less time or considerably more than their physician predicted. Medical error happens. It is just misleading to think in terms of a situation where the doctor has "the truth" and just has to decide whether to reveal it or conceal it.

Indeed if there is any truth at all in doctrines of the effects of state of mind on health - psychosomatics, the placebo effect, the role of stress, etc. - then the very act of "informing" the patient, and how the information is expressed, can have a direct effect, sometimes a very detrimental one, on how long the patient will live.

The positive and negative effects of the patient's state of mind are discussed in detail in a well-known book by Dr. B.S. Siegel (2). Dr. Siegel is against deceiving patients, but he says: "Too many doctors today have gone from benign deception to a brutal honesty that also does more harm that good." (p. 43) He says: "The physician's habitual prognosis of how much time a patient has left is a terrible mistake, it's a self-fulfilling prophesy." (p. 39) This is because: "One of the best ways to make something happen is to predict it." (p. 35).

I have noticed among my students and colleagues that doctors may tend to despise Dr. Siegel's book, while experienced nurses love it and say it is obviously right. In any case my opinion is that a physician who informs about what seems to be the truth had better be both very modest about his or her ability to know "the truth", and very careful about choice of words and manner. And while one ought in general to be honest there may be extreme cases where one might consider deceiving a patient, just as there may be extreme cases (as is recognized in Israeli law) where in order to save a patient's life it may be necessary to force a patient to accept treatment.

True patient autonomy ought to start long before somebody gets sick and comes to the hospital. By diet, exercise, frame-of-mind, lifestyle, observing the effects on one's health of various foods, many people can learn to maintain health without running to a doctor for every little thing. And when someone does get sick I fully support that person's right to choose to go to a doctor or to treat oneself or try natural methods of healing or prayer or whatever one may choose.

But once one enters a hospital the situation changes. It is the job of doctors and nurses to save life, not to let people die. Obviously - to be reasonable - sometimes patients ought to be allowed to die quietly, without interference. But I would rather my medical and nursing students err by saving some lives when they shouldn't have, rather than letting some people die when they ought to have been saved. (The distinction between patient autonomy outside the hospital and physician's authority within the hospital is developed here from the discussion, in the halachic treatise Aruch ha Shulchan, of a patient who wants to fast on the Day of Atonement while his doctors think he ought to eat. If he is not under a doctor's care, Jewish law recognized his autonomy. It requires him to obey the doctors only if he is already under their care.)

Dr. Asai (3), however, is a Japanese doctor who studied in the United States and seems to want to import American ethics into Asia. His exposition of the situation is excellent. But I don't think there is anything holy, noble or ethical about American informed consent. The Americans have this idea called a "living will". When you translate it into other languages, you can come up with a phrase meaning "the will to live". But in America it can be just the opposite: the will to die. The idea is that you're supposed to fill out a paper saying how you are to be treated if you are unconscious or incompetent, and in need of medical treatment. I haven't seen figures but I think most people specify they want to be left to die.

In 1978 (4) and again in 1986 (5) the American geriatrician, Theodore R. Reiff, argued that all this "living will" business is just a trick the American government has to save money. In the United States elderly patients get medical care at government expense. In the 1970's government policy makers figured out that huge sums could be saved by encouraging people to make advance directives refusing treatment Reiff quoted a 1977 Health Care Financing Administration document saying: "the cost savings from a nationwide push toward living wills is likely to be enormous. Thus in FY (fiscal year) 1979, $4.9 billion will be spent for such persons [those in their last years of life] and if just one quarter of these expenditures were avoided through adoption of 'living wills', the savings under Medicare alone would amount to $1.2 billion." (5:241). Reiff compares American cost-containment in health care to Nazi policies of getting rid of "burdens on society", and he quotes a Governor of the State of Colorado who reportedly said: that terminally ill old people have "a duty to die and get out of the way" (5:245). Of course, it's important to respect patients' wishes. But I wonder how much of the noble ideology of "autonomy" and "informed consent" is just a tool of economic interests? Do we really want to import this American merchandise into Asia?

Dr. Asai also favours an American direct physician-patient relationship over a Japanese physician-family-patient relationship where the family is a "barrier" between the physician and patient. (3:91). But I highly recommend a paper by Naoko Miyaji (6) who argued the opposite: The American ideology of "autonomy" may really help doctors influence patients more easily by isolating them from their families. Japanese family solidarity may really strengthen patients giving them more authentic autonomy.

Hughes (7) also thinks the Americans are a paradigm of ethics, and makes statements so wild I had to read them several times to be sure he was really saying such things. Hughes thinks that "right thinking nations" believe that "only the United States and other nuclear superpowers are sufficiently moral to be allowed the ownership of nuclear and chemical weapons".(7:97) I wonder if Hughes ever read or heard about Hiroshima and Nagasaki! The Americans are the only nation ever to use nuclear weapons in war, and they used them against civilian populations. Hughes must also be too young to remember Vietnam. And he must not have noticed US treatment of Blacks and the continued occupation of Native Indian lands. Of course none of us is without sin. So for this very reason no one has a right to go around saying they're more ethical than the rest of us. Hughes says he is against fascism but also suggests that when genetically engineered humans don't turn out to Hughes' taste, they "can be controlled with firearms" (7:97) Perhaps someday Hughes will enlighten us as to whether the firearms he proposes will be rifles, artillery or moral American atom bombs.

I couldn't help thinking of Hughes' remark about firearms when I read the report in the AJMG about a 23-year-old Frenchman, Marc Fˇron, whose girlfriend would not marry him because he suffered from a genital malformation (8). He asked his mother to kill him and she did so by shooting him in the head with a hunting rifle. Mme. Fˇron was tried and acquitted. I suspect this precedent may encourage more euthanasia for reasons very different from oncological pain. Note also that in Holland it has become possible for a doctor to kill a patient who suffers from depression but no physical pain (9). This is what I mean by reaching the bottom of the slippery slope.

I was most troubled by Darryl Macer's comments on the Fˇron case. Darryl mentioned the need for compassion towards the mother, and added: "it is practically distasteful and useless to have a law saying mothers cannot assist in their children's euthanasia" (10). But the idea of a mother killing her own child for whatever reason literally gave me nightmares.

To be fair to Darryl, however, I think that if I understand him he is probably motivated by a strong Christian antinomianism i.e. a distaste for laws and a desire to put love, faith and forgiveness in their place. Since Christian antinomianism was a reaction to Jewish legalism it may surprise the reader that I highly sympathize with Darryl's position. I think that in our hearts we should try to forgive, understand and love all suffering people including Mme. Fˇron as well as all criminals. And I look forward to a future day when God's face will no longer be hidden and it will be clearly obvious to all what is ethical and what isn't. So there will be no more sin, and no more need for governments, police, laws and punishment. But in the present low state of humanity we still need laws. Even today I'd like to see as few laws as possible. But I don't see how we can get along with laws against murder. And I would have favoured a jail term for Mme. Fˇron if only to set an example for others.

References

Asai A. Barriers to informed consent in Japan. EJAIB (1996) 6:90-93.
Hecht BK & Hecht F. Murder of son with a genital malformation. AJMG (1995) 58: 381.
Hughes JJ. Embracing change with all four arms: a post-humanist defense of genetic engineering. EJAIB (1996) 6: 93-101.
Jones K. A patient who changed my practice: mistaken identity. BMJ (1994) 309: 852.
Macer D. Views of euthanasia for sufferers of genetic disease. AJMG (1995) 58: 379-380.
Miyaji NT. The power of compassion: truth telling among doctors in the care of dying patients. SSM (1993) 36: 249-264.
Ogilive AD & Potts SG. Assisted suicide for depression: The slippery slope in action? BMJ (1994) 309: 492-493.
Reiff T It can happen here JAMA (1978) 30: 2761-2762.
Reiff T (1986) It is happening here. In Geriatric Nephrology Oreopoulos G., ed. Martinus Nijhoff, 241-246.
Siegel BS Love, Medicine & Miracles. New York, Harper & Row 1988.


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