Protection of Conscience Project Library

Whither Brain Death?

James L. Bernat

Abstract
The publicity surrounding the recent McMath and Muñoz cases has rekindled public interest in brain death: the familiar term for human death determination by showing the irreversible cessation of clinical brain functions. The concept of brain death was developed decades ago to permit withdrawal of therapy in hopeless cases and to permit organ donation. It has become widely established medical practice, and laws permit it in all U.S. jurisdictions. Brain death has a biophilosophical justification as a standard for determining human death but remains poorly understood by the public and by health professionals. The current controversies over brain death are largely restricted to the academy, but some practitioners express ambivalence over whether brain death is equivalent to human death. Brain death remains an accepted and sound concept, but more work is necessary to establish its biophilosophical justification and to educate health professionals and the public.

Bernat JL. Whither Brain Death? The American Journal of Bioethics, 14:8, 3-8, (2014) DOI:10.1080/15265161.2014.925153

Changing the Conversation About Brain Death

Robert D Truog, Franklin G Miller

Abstract
We seek to change the conversation about brain death by highlighting the distinction between brain death as a biological concept versus brain death as a legal status. The fact that brain death does not cohere with any biologically plausible definition of death has been known for decades. Nevertheless, this fact has not threatened the acceptance of brain death as a legal status that permits individuals to be treated as if they are dead. The similarities between “legally dead” and “legally blind” demonstrate how we may legitimately choose bright-line legal definitions that do not cohere with biological reality. Not only does this distinction bring conceptual coherence to the conversation about brain death, but it has practical implications as well. Once brain death is recognized as a social construction not grounded in biological reality, we create the possibility of changing the social construction in ways that may better serve both organ donors and recipients alike.

Truog RD, Miller FG. Changing the Conversation About Brain Death. The American Journal of Bioethics, 14:8, 9-14 (2014) DOI: 10:1080/15265161.2014.925154

The Efficient Breach Theory: The Moral Objection

Tareq Al-Tawil

Abstract
This article discusses the moral objection to the efficient breach theory, specifically the objection that it is not based upon a moral obligation to perform a contract. The efficient breach theory endorses the immoral behaviour of breaching a promise whenever the consequences of breach are considered to be superior (in the sense that they are more efficient or better) to those of performance. It considers that contracts (namely, those promises in which legal rules and institutions are involved) are simply vehicles for achieving economic efficiency. The efficient breach theory has been challenged by a number of critics. It is the idea underlying promissory obligations that a promise excludes or ignores the ordinary grounds – for example, utilitarian grounds – that a promisor may bear in mind and consider in the course of making the decision about whether they should perform the promise. This characteristic of promises can be explained by saying that a promise creates an exclusionary reason for action. This article also addresses two crucial questions. First, why do promises create exclusionary reasons for action in the first place? Without answering this question, it would be difficult to argue that promises should be understood differently from the way the efficient breach theory understands them. Second, how do we decide when breaching a promise is or is not immoral? This question is significant because without such knowledge, it would be difficult to argue that the efficient breach theory endorses the immoral behaviour of promise-breaking once a better opportunity presents itself.

Al-Tawil T. The Efficient Breach Theory: The Moral Objection. Griffith Law Rev. 2011;20(2):449-481.

Clinicians’ Involvement in Capital Punishment – Constitutional Implications

Nadia N. Sawicki

New England Journal of Medicine, NEJM — New England Journal of Medicine

Extract
If capital punishment is constitutional, as it has long been held to be, then it “necessarily follows that there must be a means of carrying it out.”1 So the Supreme Court concluded in Baze v. Rees, a 2008 challenge to Kentucky’s lethal-injection protocol . . .

Lethal injection, the primary execution method used in all death-penalty states, was adopted precisely because its sanitized, quasi-clinical procedures were intended to ensure humane deaths consistent with the Eighth Amendment. But experiences like Clayton Lockett’s . . .demonstrate the dearth of safeguards for ensuring that this goal is actually achieved. . . Nevertheless, states have demonstrated their willingness to continue with lethal injections, and most federal courts have allowed executions to proceed in the face of constitutional challenges. The time is therefore ripe for the medical and scientific communities to consider, once again, their role in this process.

Sawicki NN. Clinicians’ Involvement in Capital Punishment – Constitutional Implications. N Engl J Med 371;2 nejm.org july 10, 2014

Forgoing artificial nutrition or hydration at the end of life: a large cross-sectional survey in Belgium

Kenneth Chambaere, Ilse Loodts, Luc Deliens, Joachim Cohen

Abstract
OBJECTIVES: To examine the frequency and characteristics of decisions to forgo artificial nutrition and/or hydration (ANH) at the end of life. DESIGN: Postal questionnaire survey regarding end-of-life decisions (including ANH) to physicians certifying a large representative sample (n=6927) of Belgian death certificates in 2007.

SETTING: Flanders, Belgium, 2007.

PARTICIPANTS: Treating physicians of deceased patients.

RESULTS: Response rate was 58.4%. A decision to forgo ANH occurred in 6.6% of all deaths (4.2% withheld,3.0% withdrawn). Being female, dying in a care home or hospital and suffering from nervous system diseases(including dementia) or malignancies were the most important patient-related factors positively associated with a decision to forgo ANH. Physicians indicated that the decision to forgo ANH had had some life-shortening effects in 77% of cases. There had been no consultation with the patient in 81%, mostly due to incapacity (coma or dementia). The family, colleague physicians and nurses were involved in decision making in 76%,41% and 62%, respectively.

CONCLUSIONS: A substantial number of deaths are preceded by a decision to forgo ANH in Belgium. These decisions, ethically laden and involving a considerable chance of life shortening, are mostly not preceded by discussion with the patient despite existing patient rights legislation. It is recommended that physicians and patients and their families alike dedicate ample time to the discussion of treatment options and communication about the possibility of forgoing ANH and that this discussion takes place earlier as part of overall end-of life care planning rather than at the very end of life..

Chambaere K, Loodts I, Deliens L, Cohen J. Forgoing artificial nutrition or hydration at the end of life: a large cross-sectional survey in Belgium. J Med Ethics. 2014 Jul;40(7):501-4.

Perimortem gamete retrieval: should we worry about consent?

Anna Smajdor

Abstract
Perimortem gamete retrieval has been a possibility for several decades. It involves the surgical extraction of gametes which can then be cryo-preserved and stored for future use. Usually, the request for perimortem gamete retrieval is made by the patient’s partner after the patient himself, or herself, has lost the capacity to consent for the procedure. Perimortem gamete retrieval allows for the partner of a dead patient to pursue jointly held reproductive aspiration long after their loved one’s death. But how can we know if the dying patient would have consented to gamete retrieval? In the UK, consent is a legal necessity for storing or using gametes – but this is not always enforced. Moreover, although the issues related to posthumous reproduction have been discussed at length in the literature, few commentators have addressed the specific question of retrieval. Gamete retrieval is an invasive and sensitive operation; as with any other intervention performed on the bodies of dead or dying patients, the nature and justification for this procedure needs to be carefully considered. In particular, it is important to question the idea that consent for such an intervention can be inferred solely from a person’s known wishes or plans concerning reproduction.

Smajdor A. Perimortem gamete retrieval: should we worry about consent? J Med Ethics doi:10.1136/medethics-2013-101727

Conceptualising Conscientious Objection as Resistance

Ben Farrand

Abstract
While conscientious objection in healthcare is becoming increasingly studied, the legislative implementation of the principle is often without definition, leading to the question ‘what is conscientious objection?’ As this article will demonstrate, it is useful to reconceptualise conscientious objection as ‘resistance’ to dominant discourses and understandings in society, which have been internalised and co-opted as a way of acting as a ‘safety-valve’ for individualised dissent, as well as reinforcing perceptions of freedom, choice and tolerance in liberal democratic society. This non-normative assessment of conscientious objection therefore seeks to provide a framework for understanding why certain forms of resistance may be considered conscientious and some may not, before then applying this understanding to issues such as abortion and female genital mutilation.

Farrand B. Conceptualising Conscientious Objection as Resistance. J Med Law & Ethics. 2014 Jul 01 69; 2(2-3): 69-87.

Reasonability and Conscientious Objection in Medicine: A Reply to Marsh and an Elaboration of the Reason-Giving Requirement

Robert F. Card

Abstract
In this paper I defend the Reasonability View: the position that medical professionals seeking a conscientious exemption must state reasons in support of their objection and allow those reasons to be subject to evaluation. Recently, this view has been criticized by Jason Marsh as proposing a standard that is either too difficult to meet or too easy to satisfy. First, I defend the Reasonability View from this proposed dilemma. Then, I develop this view by presenting and explaining some of the central criteria it uses to assess whether a conscientious objection is proper grounds for extending an exemption to a medical practitioner.

Card RF. Reasonability and Conscientious Objection in Medicine: A Reply to Marsh and an Elaboration of the Reason-Giving Requirement. Bioethics 2014 Jul; 28(6):320-6. doi: 10.1111/bioe.12022.

Physicians, Medical Ethics, and Execution by Lethal Injection

Robert D. Truog, I. Glenn Cohen, Mark A. Rockoff

Journal of the American Medical Association

Extract
In an opinion dissenting from a Supreme Court decision to deny review in a death penalty case, Supreme Court Justice Harry Blackmun famously wrote, “From this day forward, I no longer shall tinker with the machinery of death.” In the wake of the recent botched execution by lethal injection in Oklahoma, however, a group of eminent legal professionals known as the Death Penalty Committee of The Constitution Project has published a sweeping set of 39 recommendations that not only tinker with, but hope to fix, the multitude of problems that affect this method of capital punishment.

Truog RD, Cohen IG, Rockoff MA. Physicians, Medical Ethics, and Execution by Lethal Injection. JAMA. 2014;311(23):2375-2376. doi:10.1001/jama.2014.6425

The Paradox of Conscientious Objection and the Anemic Concept of ‘Conscience’: Downplaying the Role of Moral Integrity in Health Care

Alberto Giubilini

Abstract
Conscientious objection in health care is a form of compromise whereby health care practitioners can refuse to take part in safe, legal, and beneficial medical procedures to which they have a moral opposition (for instance abortion). Arguments in defense of conscientious objection in medicine are usually based on the value of respect for the moral integrity of practitioners. I will show that philosophical arguments in defense of conscientious objection based on respect for such moral integrity are extremely weak and, if taken seriously, lead to consequences that we would not (and should not) accept. I then propose that the best philosophical argument that defenders of conscientious objection in medicine can consistently deploy is one that appeals to (some form of) either moral relativism or subjectivism. I suggest that, unless either moral relativism or subjectivism is a valid theory-which is exactly what many defenders of conscientious objection (as well as many others) do not think-the role of moral integrity and conscientious objection in health care should be significantly downplayed and left out of the range of ethically relevant considerations.

Giubilini A. The Paradox of Conscientious Objection and the Anemic Concept of ‘Conscience’: Downplaying the Role of Moral Integrity in Health Care. Kennedy Inst Ethics J. 2014 Jun 15;24(2):159-185.