Mirror of Justice

I am indebted to Notre Dame philosophy Professor John O'Callaghan for his very thoughtful response to my intuitions concerning the removal of nutrution and hydration from patients in a persistent vegetative state. He puts meat on the bones of my musings with his insightful letter, which I share now:

"I thought I would respond to the issue of removing food and hydration from patients in a persistent vegetative state that you posted on the Mirror of Justice blog. Before beginning, I want to point out that I am neither a moral theologian, nor a moral philosopher, nor a medical ethicist. I teach medieval philosophy, particularly metaphysics and the philosophy of human nature, areas that are rather far removed from medical ethics, at least as the latter is presently understood. I have also not yet had the chance to read the bishop’s letter. So I can claim no specialization here, and what follows will not be in any way an argument from authority. Instead it will simply be a straightforward argument based upon reflection of my own. For a long time I have shared your discontent with the assimilation of the withholding of food and hydration to the withholding of extraordinary life support. I think the cases are quite distinct. Consider a few premises: 1) We are ordinarily obliged to provide food and water to someone who is hungry
and, or starving. This claim has to do with our moral obligations. I do not know what laws there might be in different states or jurisdictions, etc., obliging one to provide such care. (I assume that at least with respect to parents and children there are such laws.) But most people would admit, I think, that one has failed in one’s moral obligations if one allows another to starve to death or die from dehydration. To fail to come to his or her aid is to be guilty of a moral fault of omission. 2) We are not ordinarily obliged to provide “extraordinary” medical treatment to keep someone alive who will otherwise die. Such treatment is usually a treatment that retards or even temporarily stops a pathological process from reaching its term in the death of the individual. It is “extraordinary” because of moral, social, financial, experimental, or other factors that may set the context for the delivery of the treatment. 3) So the first conclusion is that prima facie ordinarily providing food and water to someone who is starving cannot be conceived of as extraordinary means of keeping someone alive. All well and good, and presumably not surprising to
anyone. 4) But then the question becomes whether a “persistent vegetative state” changes the ordinary moral obligation into one that falls under “extraordinary means,” and thus one in which one may refrain from providing food and hydration. It is hard to see that it does. One can think of at least two scenarios. A) the patient is actually capable of swallowing food and water that is placed on his or her tongue. How is that extraordinary means? What are the moral, social, financial, experimental, or other factors that make it “extraordinary?” Consider a conscious quadriplegic, incapable of feeding himself or herself. Presumably one places food and water on his or her tongue, and he or she swallows it. No one would claim that our ordinary moral obligation to feed and hydrate him or her becomes a matter of “extraordinary means” that we are not obliged to provide simply because the food must be placed on his or her tongue.

The key difference between the quadriplegic here and the person in a persistent vegetative state is consciousness. It is not a question of a terminal pathology. Thus one is tempted to withhold food and water from the patient qua unconscious, not qua terminally ill. Indeed, the very description “persistent vegetative state” implies that it is not a case of the terminally ill. B) the patient has to be fed and hydrated through a tube or some other medical technology. Does this make the feeding and hydrating extraordinary?
No, and for two reasons. In the first place, ‘technological means’ is not synonymous with ‘extraordinary means’. The fact that medical technology, however complicated, has to be used to deliver a treatment does not imply of itself that it is “extraordinary.” As I mentioned above, the judgment of “extraordinariness” has to do with a lot of other factors, moral, social, etc., that might be in play here, a crucial one of which I will return to in a minute. But it does not have to do with the fact that the medical treatment uses some piece of technology however complex. The second reason parallels the case I just mentioned involving the quadriplegic. Suppose now that we had someone who was not a quadriplegic, but instead suffered from some horrible pathology of the mouth, throat, or autonomic system that prevented him or her from eating, a person moreover who is not in a persistent vegetative state. The only way that patient could be fed and hydrated would be through a tube or some other medical technology. Would we then think that we no longer had a moral obligation to feed and hydrate such a patient, but could in good conscience watch him or her starve? I doubt anyone would agree that the ordinary obligation falls under the “extraordinary means” principle in such a situation. So as in the other case, the crucial factor that leads one to move toward such a denial as extraordinary does not have to do with the actual pathology that patient is suffering from, terminal or chronic, but the lack of consciousness in him or her.

The centrality of consciousness to the question raises two fundamental points about the “extraordinary means” principle. Because I am not a medical ethicist, I cannot make the following claims with any absolute certainty. But 1) the question of the consciousness of the patient traditionally is not a part of the determination of “extraordinary means.” And 2) a) the context within which “extraordinary means” comes into play has as at least one necessary condition that the patient is suffering from a terminal pathology, where b) the “extraordinary means” are used to retard or temporarily halt the course of that pathology. The result of withholding those “extraordinary means” is that the patient will die from that pathology, where otherwise his or her life would be extended for some period of time, all other things being equal.

And here it seems to me is a crucial factor determining why the withholding of food and hydration is not the withholding of “extraordinary means,” if what I just claimed is correct. In feeding or hydrating we are addressing a normal part of organic life, namely hunger. Hunger is not itself a pathology; indeed it is a sign of health. Failure to address it leads to pathology. When food and water are withheld from a patient, he or she dies from a pathology he or she did not already have. The pathologies themselves of starvation and, or dehydration that kill the patient are the direct result of the act of omission; I am responsible for the existence of the pathology that kills him or her. In the case of “extraordinary means,” the pathology that kills the patient is not a direct result of the act of omission. The corresponding act of commission was impeding the pathology that was already there completely independent of any act of omission or commission on my part. I may well be responsible for the fact that the fatal pathology has not been retarded or temporarily halted, but I am not responsible for the very existence of that pathology. The “extraordinary means” principle allows that I am not always obliged to perform actions that may extend a person’s life. It in no way allows that I may introduce a pathology that will terminate a person’s life.

Consider a patient who is not vegetative but in the advanced stages of some cancer. And consider a nurse and a doctor. The nurse is responsible for providing food and hydration for the patient (however delivered), while the doctor is responsible for some extraordinary means retarding or temporarily halting the progress of the cancer. If the nurse withholds the food and water while the doctor continues the treatment, the patient will die. But he or she will not die of cancer. A new pathology out of the control of the doctor will kill the patient despite the doctor’s best efforts to address the patient's cancer. On the other hand, suppose the nurse continues to feed and hydrate the patient while the doctor ceases to provide the extraordinary treatment. Then the patient will die as well, but from a completely different pathology, namely, the cancer. And if we don’t know who withheld the treatment, presumably we could ask a medical examiner to perform an autopsy. With a reasonable amount of scientific precision, the examiner is likely to be able to tell us which pathology killed the patient, the starvation or dehydration that was a direct result of the nurse’s act of omission, or the cancer that was not a direct result of the doctor’s act of omission. All the difference in the world rests upon what condition kills the patient, a condition that is present regardless of what I try to do to retard or temporarily halt it, or a condition that is present precisely because of my failure to act. If I withhold food and water from my children I will and I should be held responsible for their deaths, because they would die from a pathology I am responsible for. That basic fact does not change even when they are unconscious and incapable of knowing the pathology that is killing them. But if I withhold “extraordinary means” from a patient who is already terminally ill, I should not be held responsible for his or her death, since I am not responsible for the pathology that kills him or her.

But to return to the question at hand, one is not even proposing withholding food and hydration from the terminally ill, but rather from the persistently vegetative. That is, one is proposing to withhold food and hydration from someone who is not even dying! In that case, there is no ambiguity about who or what killed the patient. The patient was not dying until I began to withhold food and hydration. There is simply no question that I am responsible for the death of the patient, where in the case of “extraordinary means” no one would claim that I am responsible for the pathology that kills the patient, even if I am responsible for not delaying his or her death from that pathology.

I think it is practically inconceivable that anyone would suggest that a conscious patient who is capable of taking food and hydration can be denied such food and hydration because he or she suffers either from an incurable disease that will lead to death, or from a chronic and very debilitating but not fatal illness. To do so would be euthanasia. This I take it is the bishop’s point. Indeed, I think this is true even if one were faced with the situation of someone refusing to eat. Our moral judgment falls on the side of recognizing such a desire to starve to be itself pathological. Presumably we would make the food and water available and urge the patient to eat. So, it looks as though the condition that allows us as a community to begin to suggest removing food and hydration is that the patient not be conscious of what is happening to him or her. In other words the urge to deny food and water is made active when the patient is unresponsive. But it does not cease to be euthanasia because the patient is unconscious. And we have to ask ourselves whether or not refusing the patient food and hydration is designed to relieve his or her suffering, or our own as we are faced with our frustration over the apparently interminable continuation of our having to care for such a person.

At the heart of this desire is a bad philosophy of human nature that associates being a person with healthy consciousness, rather than with the living organic unity of a member of the human species. But that is a rather large argument that needs to be made, that I’ll only summarize here. Alasdair MacIntyre has made an effort to begin addressing it in his “Dependent Rational Animals,” as has John Kavanaugh in his “Who Counts as Persons. Human Identity and the Ethics of Killing.” Other treatments not dealing specifically with the question of care for the ill, are Eric Olson in “The Human Animal : Personal Identity Without Psychology,” as well as some of the work of the Princeton philosopher Mark Johnston. All of these figures stress that we are human animals, that is, animals of a distinctive sort. Animals have an organic unity in their lives, despite whatever pathologies they may suffer from in the course of those lives. In contemporary philosophy, these thinkers represent a minority view. It is fair to say the majority view is that human persons are constituted by their psychology and consciousness. No consciousness, no person. Few contemporary philosophers are full blown Cartesian dualists in the sense of thinking the mind is a separate substance from the animal body. But most betray, consciously or unconsciously (pun somewhat intended), the inertia of that dualism. They conceive of personhood as some special feature that comes to the human animal sometime down the developmental line, at some “magic moment” otherwise known as the dawning of consciousness. Similarly the loss of consciousness is seen to be the expiring of personhood even as the human animal may continue to live on. Kavanaugh calls these latter views “performance” accounts of personhood; one is a person because one can presently perform the activities characteristic of persons which are psychological activities involving consciousness. His view and those of MacIntyre, and others rely upon what he calls “endowment” criteria of personhood. In an endowment account, a human person is an animal of a certain sort, the distinctiveness of which consists in being endowed with the capacity to reason or be conscious. The crucial difference is that on an endowment account one need not be presently capable of exercising that endowment in order to possess it. Children, as animals, are endowed with the capacity to reproduce even though they cannot exercise it until puberty, and so on.

The performance accounts have difficulty in giving an adequate account of a) consciousness as a developmental stage in the life of an animal, and b) unconsciousness as in some instances a pathology of that animal. a) If consciousness is a developmental stage in the life of an animal, then it is not
fundamental. Why is it that consciousness only dawns in the life of some kinds of animals, including the human, and not others? It turns out that these animals are endowed with the capacity to develop consciousness. Being a person is derivative upon being the kind of being one is. But in that case the performance account collapses into an endowment account. To avoid that collapse, the performance account has to picture the dawning of consciousness in the life of an animal as utterly mysterious. (When I think of this problem, I hum to myself the song “This Magic Moment.”) b) the endowment account has no
difficulty recognizing that a vegetative state is a pathological state for a human animal. “This kind of animal, given what it is, what it is endowed with, ought to be able to exercise conscious psychological functions. It can’t. There must be something wrong. Let’s see if we can fix it.” Because it is a pathological state, one is justified in trying to cure it medically. But the performance account, insofar as it does not see consciousness and thus personhood as a natural endowment of a certain kind of animal, has a difficult time recognizing that the human animal in a vegetative state is in a pathological state. If the capacity for consciousness is not a natural endowment of this kind of animal, why do we think it is ill when it cannot exercise it? By analogy, if the capacity to reproduce is not an endowment of this kind of animal, we should not think that sterility after puberty is a pathology for this kind of animal that we might seek to cure. But enough. It is contemporary philosophy of persons and consciousness with its performance account that by and large animates the medical ethics that is out there. I am in the minority view, as is the Church I believe.

I hope what I have written makes a certain amount of sense to you. Writing it is in many ways an exercise on my part of actually clarifying for myself the thoughts that have been swirling around in my head for several years now. I think one of your members, Rick Garnett has written about the need for an
adequate theological anthropology in order to work out these questions of life and death. These are just reflections toward an adequate philosophical anthropology. Thanks for the opportunity to clarify my thoughts to myself, if not to you as well. And pray for those who are charged with the responsibility of caring for persons in persistent vegetative states. There but for the grace of God go I."