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Author Archive: Thaddeus Mason Pope, JD, PhD

About Thaddeus Mason Pope, JD, PhD

With this week's signing of the Maine Death with Dignity Act, MAID is now legal in eleven United States jurisdictions.

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Some videos are available from the recent brain death conference at the John Paul II Academy for Human Life and the Family. Major themes include: Apnea testing does not diagnose brain death; it causes brain death. The myth of brain death is defended...

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This is a video of a presentation ("Brain Death - Legal Status Amid Growing Uncertainty") similar to one that I made at the 42nd ASLME Annual Health Law Professors Conference in Chicago, on June 6, 2019.

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Noa Pothoven suffered from post-traumatic stress disorder, depression and anorexia for years. She tried to survive despite her psychological problems, but that was no longer possible.

Noa recently announced that she had stopped eating and drinking. When she died, her death was erroneously reported as having been through euthanasia. In fact, the Levenseind ​​clinic in The Hague had denied her request. Instead, Noa hastened her death by VSED, a method commonly used when MAID or euthanasia is not available.

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I have argued (including here and here) that clinicians have  a duty to replace healthcare surrogates who do not act in accordance with the patient's wishes or best interests. Unfortunately, clinicians often cave-in to unfaithful surrogates.

Happily, sometimes another family member moves to replace the surrogate. In a recent Pennsylvania case, the alternate healthcare agent obtained a court order removing his brother as agent for their mother. 

The original agent was so difficult for the clinicians to work with that the court determined that he was "not acting in Mother’s best interest with regard to her medical care."

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Join me at ASBH in Pittsburgh, in October 2019 for one of the most popular annual panels and a new all-pro workshop: Legal Update 2019: Top 10 Legal Developments in Bioethics and Public Health Art Derse Paul Lombardo Valerie Gutmann Koch Thaddeus Po...

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A new Hastings Center project addresses foundational questions about end-of-life choices for people with dementia.

As the American population ages and dementia is on the rise, The Hastings Center is embarking on pathbreaking research to explore foundational questions associated with the dementia trajectory and the concerns of persons facing this terminal condition. This new research is made possible by a major grant to The Hastings Center from The Robert W. Wilson Charitable Trust as part of its visionary support for the Center’s research and public engagement on ethical challenges facing aging societies. 

Principal investigators are Nancy Berlinger, a research scholar at The Hastings Center, and Mildred Z. Solomon, the president.

Dementia is an age-associated condition that typically spans four-to-eight years from diagnosis to death, although it may last much longer. Some brain changes associated with dementia can be identified before the onset of symptoms via biomarkers detected through neuroimaging or other tests. 

During the dementia trajectory, a person experiences progressive impairment of cognitive abilities – including memory, problem-solving, and language – as well as changes in behavior and physiological functions. As cognition deteriorates, a person with dementia will need daily assistance and eventually total care, often in an institutional setting, for several years before physical deterioration progresses to death from pneumonia or another condition associated with severe dementia. There are no effective treatments to cure or halt the progression of dementia. Alzheimer’s disease, the most common form, is the sixth leading cause of death in the U.S.  Vascular dementia, the second most common form, may develop following stroke.

In 2018, 5.7 million Americans were living with dementia. An estimated 12 million others will be at high risk for developing dementia over the next 30 years as the baby boom generation lives into their 80s and 90s. 

In the U.S., the basic legal right to be free of unwanted treatment is long established. People with decision-making capacity have the right to forgo life-sustaining treatment they do not want. People who lack decision-making capacity have the same right through the use of an advance directive or a surrogate decision-maker. However, this longstanding legal framework and ethical consensus does not fully reflect the situation of a person facing dementia if this person has no medical treatments to refuse. Also, the timeframe in which a terminally ill person with decision-making capacity can request and use medical aid-in-dying (MAID), now legal in nine U.S. jurisdictions, does not correspond to the dementia trajectory. 

“Bioethics, and The Hastings Center specifically, have articulated a lasting framework for medical decision-making in the context of serious illness and the end of life,” says Solomon. “It is time to focus on the dementia trajectory and explore unresolved questions of great significance to our aging society.”  

Through literature review and workshops, a Hastings Center work group will conduct an ethical analysis of end-of-life choices in the context of dementia, identifying areas where further research or policymaking is needed. In exploring these emerging issues, the work group will also consider how the field of bioethics should contribute to research, policy solutions, and public understanding to improve the experiences of living with dementia and caring for people with the condition. Products will include a special report, to be published in 2021.

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The medical and bioethics literature frowns upon slow codes and show codes. It also generally frowns upon unilateral DNR orders.

In contrast, once clinicians begin resuscitation efforts, they almost always can stop once they judge that stopping is clinically appropriate. Confirming the legality of this clinical discretion is a recent decision from the Ontario Health Professionals Appeal and Review Board.

The patient's wife and substitute decision maker complained to the medical board that the attending physician "did not request her permission to stop resuscitation during the patient’s cardiac arrest." The HPARB affirmed the board's decision to take no action given the urgency of the situation.

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The 2020 American Journal of Law and Medicine symposium will focus on Emerging Issues in Bioethics.  Panels will discuss bioethical legal issues in new and developing areas of health care. Priority will be given to papers that discuss telemedicin...

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The recently released 3rd annual report of the English Learning Disabilities Mortality Review (LeDeR) programme shows 19 reviews reporting the term "learning disabilities" or "Down’s syndrome" was given as the rationale for a DNR order.

The report recommends:

  1. The Department of Health and Social Care, working with a range of agencies and the Royal Colleges to issue guidance for doctors that ‘learning disabilities’ should never be an acceptable rationale for a Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) order . . . .
  2. Medical Examiners to be asked to raise and discuss with clinicians any instances of unconscious bias they or families identify e.g. in recording ‘learning disabilities’ as the rationale for DNACPR orders . . . .
  3. The Care Quality Commission to be asked to identify and review DNACPR orders and Treatment Escalation Personal Plans relating to people with learning disabilities at inspection visits. Any issues identified should be raised with the provider for action and resolution.

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