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Author Archive: Thaddeus Mason Pope, JD, PhD

About Thaddeus Mason Pope, JD, PhD

11/27/2018

Make Your "Death Plan" in Writing AND on Video

Sarah Silverman offers some wisdom mixed with humor on the cost of aging and prepping for her father’s death.


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11/26/2018

Controlling Death: Ethics, Law, and the Health Professions

On April 11-12, 2019 Harvard Medical School will host its 2019 Annual Bioethics Conference: "Controlling Death: Ethics, Law, and the Health Professions." The conference will explore ethical, legal, and clinical aspects of evolving practices of euthana...

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11/26/2018

Hearing on Final Exit Network Constitutional Challenge to Minnesota Assisted Suicide Law

Join me on Friday, November 30, 2018 for a hearing on the Attorney General of Minnesota's motion to dismiss Final Exit Network's Amended Complaint, which challenges the constitutionality of the Minnesota law against "assisting in a suicide." The heari...

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11/26/2018

Reconsidering the Right to Die: The Debate over Assisted Suicide

Earlier this year, the Albany Law Review hosted a symposium titled "Reconsidering the Right to Die: The Debate over Assisted Suicide." The law review has now published a transcript of the keynote address by the Honorable Eugene M. Fahey, a judge on th...

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11/25/2018

Medical Futility Cases – Importance of Written Decisions from California, Texas, and Virginia Appropriate Care Committees

I have repeatedly criticized the intramural resolution of medical futility conflicts as violating procedural due process. The most notable omissions are (1) a neutral decision maker, (2) appellate review, and (3) notice. But another missing element is a “written statement” of decision.

This requirement to set out all the relevant facts and evidence serves several purposes. First, it helps assure that a factual basis supports the deprivation (or dispossession) of life, liberty, or property. Second, it enables the affected individual to understand the grounds for the deprivation. Third, it provides a record upon which to prepare for appeal. By enabling an appellate tribunal to review the review committee’s reasons, a written statement protects against arbitrary and capricious deprivations.

I am not contending that all these conflicts must be adjudicated by courts. I specifically disclaimed that here. But whatever tribunal makes the decision should explain the basis for the decision. In other words, appropriate care committees in California, Texas, and Virginia can learn something from the numerous judgments issued by the British courts.



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11/24/2018

Charlie Gard & Alfie Evans – British Courts Continue Deciding Similar Cases (NHS v. A B C)

The parent v. clinician conflicts in the cases of Charlie Gard and Alfie Evans attracted worldwide attention. But those cases are hardly unique. The British courts regularly decide similar cases.

Last month, Ms. Justice Russell issued a judgment in NHS Trust v. A, B, and C.

Two month old infant C was born with a "severe brain abnormality or malformation of his brain." There is no available treatment and his life expectancy is less than one year. The NHS Trust asked the court for a declaration that it is C's best interest to not receive intubation, mechanical ventilation, or any resuscitative measures.

Following the advice in previous judgments, the court drew up a "balance sheet." The court found that because C had limited awareness of his environment, he derived limited benefits. Against those benefits, the court balanced the pain, discomfort, and distress that C suffers multiple times every day.

The court concluded "It is in C’s best interests for the court to make the declarations sought by the NHS Trust because the intervention and invasive treatments which his parents seek confer no real benefit and subject C to continuous, and ultimately futile, pain, suffering and distress; it follows that it is lawful for the treatments to be withheld."


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11/23/2018

Brain Death – Court Refuses to Decide Moot Case on Religious Opt Out

Shalom Ouanounou was determined dead on neurological criteria on September 10, 2017. But his family obtained an injunction against the removal of organ sustaining treatment while they contested whether Shalom had a constitutional right to opt out of br...

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11/22/2018

UK Supreme Court Hears Case on Medical Aid in Dying

On Thursday, November 22, 2018, a panel of three UK Supreme Court Justices held a hearing to determine whether or not to grant permission to appeal to Noel Conway. Conway has asked for permission to appeal in a case that raises the issue as to wh...

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11/22/2018

Forged Advance Directives – A Growing Problem?

As with all other legal instruments, there are periodically cases concerning advance directives and POLST forms that are forged or otherwise illegally altered.

In the latest such case, the husband of Maureen LaCapria alleges that a New York facility declined to provide Maureen life-sustaining treatment or to send her to the hospital, because of her advance directive. But Maureen's husband claims that someone forged his wife’s signature on the DNR order.

This lawsuit seems doomed, because clinicians both may and should honor advance directives so long as they have a "good faith belief" in their validity. The actual validity should not affect clinician liability.

Granted, we could mitigate the small risk of forged advance directives with additional safeguards such as mandatory notarization. But the cost of the safeguards would be significant, because making the requisite formalities more cumbersome will thwart the completion of advance directives. In other words, by preventing one "bad" advance directive, we would likely be preventing 10,000 good ones.  

Maureen LaCapria

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11/21/2018

Brain Death – "No No No to the Apnea Test"

Paul A. Byrne delivers a vehement diatribe against the very diagnosis of brain death. He advises families to say "no, no, no to the apnea test." He concludes that "no one should be declared dead unless there is no respiration, no heartbeat, and no ci...

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