SAN FRANCISCO FAITH
 

Death Dilemma

Why Did Catholic Hospitals Support the Death of Robert Wendland?

By Christopher Zehnder

"You could have picked me up off the floor. I couldn't believe it," said lawyer Janie Siess. She had learned that Catholic hospitals had supported the pro-euthanasia side in the Wendland case [see "Big Court Win," November 2001 Faith]. "Everything they were fighting for -- as I understand Catholic doctrine -- was opposed," Siess said.

Siess had represented Robert Wendland's mother, Florence, who was fighting to prevent Rose Wendland, Robert's wife and court-appointed conservator, from removing his feeding tubes. Robert, who was severely impaired because of a 1993 truck accident, had left no written instructions to indicate whether, in the such a circumstance, he would want his feeding tubes removed and so starve to death. The California supreme court on August 9 decided that, since Robert was conscious, though incompetent, his conservator could not order the removal of feeding apparatus unless she could prove, with clear and convincing evidence, that he would want to die under such circumstances, or that dying was in his best interest.

Oakland attorney Jon Eisenberg was also surprised that Catholic Healthcare West, the Alliance for Catholic Healthcare, and Mercy Healthcare, Sacramento, would ask him to represent them as amici curiae (friends of the court) on behalf of Rose Wendland. Eisenberg told me that he "took the traditional lawyer's approach" to understand the position of his Catholic clients: "I went to the writings of the Church and the hospital organizations." Eisenberg said that once he "became educated on the subject," he found "that it wasn't a surprise" that Catholic organizations would support the removal of feeding tubes from a patient. "There is a great deal of debate within the Church and within the healthcare organizations connected with the Church concerning end-of-life decision making," said Eisenberg.

I was surprised myself at Eisenberg's seeming interest in the question of Catholic ethics -- he told me that he himself embraced no religion, though he had an interest in theology. Eisenberg put me on speakerphone while he went through his papers to find the pertinent citations from Church documents. After he had read these citations, Eisenberg said his sense was that the debate in the Church over end-of-life decision-making has "resulted in decisions that really embrace a benefits/burden analysis, rather than any absolute approach to whether it is right or wrong to remove a feeding tube. The focus, as I understand it, even within papal encyclicals, and the guidelines for the healthcare organizations themselves, is really on benefits of treatment versus burdens derived from it."

Eisenberg quoted from directive 57 of the United States bishops' Ethical and Religious Directives for Catholic Healthcare Services: "A person may forgo extraordinary or disproportionate means of preserving life. Disproportionate means are those that in the patient's judgment do not offer a reasonable hope of benefit or entail an excessive burden, or impose expense on the family or the community."

"That is what I was referring to as benefits/ burden analysis," said Eisenberg. He then quoted directive 60 -- "Euthanasia is an action or omission that of itself or by intention causes death in order to alleviate suffering. Catholic health care institutions may never condone or participate in euthanasia or assisted suicide in any way...." "There is tremendous ambiguity here," said Eisenberg.

How did Robert Wendland fit into what Eisenberg thought the key directive, number 58? "If when Robert Wendland was conscious, he had absolutely abhorred the life that he was ultimately reduced to," said Eisenberg, "and if he would have absolutely abhorred imposing the burdens on his family that they were suffering, seeing him in that condition, and if we had absolutely no doubt about that, I think the directive would fit his circumstance."

Having seen Robert "a number of times toward the end of his life," Eisenberg said that his "subjective view was that Robert was suffering terribly. The only thing that he could experience was pain, discomfort, and fear; no joy, no pleasure, nothing spiritual. Now that was from my perspective," Eisenberg insisted. "That does not mean that it was not a life worth sustaining, if that was what the guy wanted. You get into the question, does he have the choice to end his life in that condition? That's a tough question. My own personal view is that he should have the choice, but that is only my personal view."

Is Eisenberg's reading of Catholic teaching only his own "personal view," or does it reflect the position of his Catholic clients. (Eisenberg did say he consulted someone at the Berkeley Theological Union who confirmed that his understanding of Catholic teaching was essentially correct.) I called Catholic Healthcare West to see if their understanding of Church teaching accorded with Eisenberg's. I spoke to their ethicist, who directed me to the press representative, Mark Klein. Though I was assured three times that Klein would return my call (once by Klein himself), I never received a call from him.

Others in the Church, though, have not been silent on the Wendland case. At this year's Los Angeles archdiocesan Religious Education Congress, on February 18, lawyer Wesley J. Smith deplored the fact that in healthcare today "people with ill health or poor cognitive capacity have less value." According to the March 21 Tidings, the Los Angeles archdiocesan newspaper, Smith said "We all have the right to refuse medical treatment, but, today, the problem isn't being hooked up to a machine against your will.... The problem is getting the machines when you want them." Smith noted that some in the medical profession believe that "people who are unconscious have no interests because they can't feel or perceive, so [withholding food and water] is right for them." Smith cited the Wendland case as an example of how standards applied to unconscious patients are being applied to conscious, though, incompetent, patients. "We are transitioning away from a [health care] system based on the Hippocratic oath, based on the sanctity of human life -- that is, each and every one of us has equal, inherent moral worth -- to one in which people are discriminated against based on their state of health or state of disability."

On June 1, Bishop Stephen Blaire of Stockton issued a statement on the Wendland case, which was published in the Stockton Record and on the website of the California Catholic Conference. "As the Roman Catholic Bishop of the Diocese in which the Wendlands reside," wrote Blaire, "I wish to offer a pastoral perspective to assist in the formation of decisions which rest in the human conscience, protect the sanctity of life and honor the common good."

"Great prudence," wrote Blair, "is needed in the Wendland case to discern the true good and to choose the right means for achieving it." The bishop then laid down certain principles that should be applied in the Wendland case. He noted that Church holds that one's "presumption must be in favor of life. Included in that is a presumption in favor of nutrition and hydration. Life is good, a precious gift from God, but not an absolute or ultimate good. Life is sacred and must be respected, but does not have to be preserved or prolonged at all costs. The ultimate good is eternal happiness in heaven."

Under what circumstances, then, may one withhold or withdraw medical treatment? Citing the 1980 Vatican document, Declaration on Euthanasia, Blaire said that "medical treatment can be withheld or withdrawn (after all proper consultations) if this treatment is of no benefit to the patient, carries a risk or is burdensome." Blaire quoted the Catechism of the Catholic Church, which says that discontinuing such procedures is permissible because, in so doing, "one does not will to cause death; one's inability to impede it is merely accepted. The decisions should be made by the patient if he is competent and able or, if not, by those legally entitled to act for the patient, whose reasonable will and legitimate interests must always be respected."

Though Blaire noted the "extremes" that one must avoid -- "an insistence on useless or burdensome technology even when a patient may legitimately wish to forgo it," and the "withdrawal of technology with the intention of causing death" -- he made no statement about which course of action would be morally licit in the Wendland case. Instead, for all parties, he encouraged "prayerful discernment" in seeking the wisdom to decide what "best serves the interest of Robert, his family and the people of California."

"It is true what the bishop says, in part, about the declaration of 1980," said Monsignor William Smith, a moral theologian at St. Joseph's Seminary in New York. The declaration, though, he said, "distinguishes between dying and non-dying patients, because it says that a refusal to use certain sorts of treatment is permissible 'when inevitable death is imminent.'" Monsignor Smith noted that two requirements come into play in deciding whether the removal of life-sustaining treatment is permissible in a particular circumstance: the first, there must be a reasonable hope that such treatment may be of benefit to the patient; and second, the treatment must not be merely "burdensome," but "excessively burdensome." Bishop Blaire, said Monsignor Smith, "needs a few more distinctions."

The "no reasonable hope of benefit" requirement, said Monsignor Smith, does not usually apply to assisted food and hydration -- "there's obvious benefit here; you're providing food and water. It's only when the reasonable hope of benefit is really mugged by excessive invasive technology that it goes down." Monsignor Smith gleaned these two requirements both from the 1980 Declaration on Euthanasia, and from Pope John Paul II's encyclical, Evangelium VitŠ, where he states that "euthanasia must be distinguished from the decision to forego so-called 'aggressive medical treatment,' in other words, medical procedures which no longer correspond to the real situation of the patient, either because they are by now disproportionate to any expected results or because they impose an excessive burden on the patient and his family. In such situations," continues the pope, "when death is clearly imminent and inevitable, one can in conscience 'refuse forms of treatment that would only secure a precarious and burdensome prolongation of life, so long as the normal care due to the sick person in similar cases is not interrupted.'"

Monsignor Smith said that "most of the fireworks" in end-of-life disputes have been about assisted nutrition and hydration. "But there's another problem that the bishop [Blaire] didn't mention, and that's probably what did Robert Wendland in. That problem is antibiotics."

"I think everybody deserves regular antibiotics to ward of pneumonia the first time around," continued Smith. "If you are lying still on a bed with tubes coming in and out, it is inevitable that you're going to get infections, some of which are politely called 'nosocomial' [hospital induced] infections. Then you get into the second round of high tech antibiotics. Then you get into what are called guerrilla antibiotics. Now it seems to me that if you are just warding off pneumonia, everyone deserves that treatment. When you go beyond that, you are, in fact, prolonging the act of dying. But this man [Robert Wendland] was not a dying patient."

When the Church speaks of excessive burden or excessive hardship in regards to the affects of medical treatment, she is using, said Smith, "a first person standard -- whether you're benefiting the patient or burdening the patient. What has happened in the courts is that they go for the third person -- whether you're a burden on the community, a burden on scarce resources, a burden on HMOs. Robert Wendland was not imminently dying; his death, if pneumonia had not done him in first, would have resulted from the removal of the feeding tubes. Euthanasia, said Pope John Paul II, is an "action or omission which of itself and by intention causes death, with the purpose of eliminating all suffering." "This isn't religion; this is a little biology," said Monsignor Smith. "You stop food and water, you die, I don't care who the hell you are. You set in motion a chain of events you know is death-dealing." Smith said, in some cases, removing feeding tubes is permissible; if a patient is dying, "you can reach a point where only palliative care is proper, where the patient cannot assimilate food anymore. If you can't assimilate food -- that means you're dying; food isn't food for those folks anymore. There are some cancer cases where the tumor is in the stomach; if you are feeding the patient, you're feeding the tumor. You're hurting more than helping, and that should cease. But that patient is dying. From what you're saying, Robert Wendland wasn't dying; he just wasn't functioning well."