Free Law Essays - Are There Moral, Ethical And Legal Justifications To Refuse Treatment Including Organ Transplant To A Patient Who Is An Alcoholic Or Has A Serious Drug Dependency?
The recent death of the footballer George Best generated a significant amount of public comment - predominantly negative - on the merits of allowing a liver transplant to a patient whose pre-operative terminal condition was a direct result of self-inflicted alcohol abuse and who proceeded, following the life-saving transplant, to abuse the replacement organ in precisely the same way. It is very easy for the bar room philosopher (who is arguably in the wrong location from which to make such judgments!) to issue such condemnation but it is inevitably ignorant of the wider issue of how the criteria for the allocation of scarce resources such as donor organs should be determined and the extent to which personal irresponsibility should be taken into account. It is possible to divide consideration of this topic into two stages: first, the development of selection criteria and the role of the law in enforcing the same; second, the extent to which the application of such criteria should be influenced by perceptions of personal responsibility for the medical condition in question or fault.
As the quotation from Sir Thomas Bingham MR demonstrates, the law has long struggled with such decisions - not just from the narrow perspective of the merits of providing treatment to the self-abuser by means of drugs or alcohol but in the wider sense of deciding how finite and often expensive resources should be allocated. The case in which he was giving judgment (cited in full below) attracted a great deal of public attention and caused the Chief Executive of the Health Authority concerned to observe:
[The] case took on a symbolic significance, helping people to grasp the reality that expectation and demand had now outstripped their publicly funded systems' ability to pay without regard to the opportunity cost.
The public law action for judicial review enables the decisions of public bodies to be challenged on the basis that they are irrational, illegal or marred by procedural irregularities (Council of Civil Service Unions v Minister for the Civil Service). This was so in R v Secretary of State for Social Services, ex p Hincks: in 1978, plans that had been made some years previously to expand a hospital which would have had the result of expanding facilities for orthopaedic surgery were effectively abandoned. Four patients who were awaiting such surgery brought proceedings for judicial review arguing that the Secretary of State was in breach of his duty to provide such resources under s.3 of the National Health Service Act 1977. Lord Denning found the patients' argument attractive but concluded that there must be an implied limit upon such a duty (to such extent as he considers necessary to meet all reasonable requirements such as can be provided within the resources available [emphasis supplied]). Lord Denning proceeded to supply a formula which succinctly expresses the overall limitations upon the duty to provide treatment in all cases not just those of the alcoholic or drug abuser:
It cannot be supposed that the Secretary of State has to provide all the latest equipmentto provide all the kidney machines which are asked for, or for all the new developments such as heart transplants in every case where people would benefit from themit cannot be that the Secretary of State has a duty to provide everything that is asked for in the changed circumstances which have come about.
However, it is clear that lack of resources will not, of itself, be allowed to be the single determining factor. In R v Gloucestershire CC ex p Mahfood; R v Islington ex p McMillan, the wholesale withdrawal of services to an entire category of disabled people was successfully challenged. While the argument that need was absolute irrespective of the resources available to meet it was rejected as unrealistic and impractical, McCowan LJ concluded:
a local authority is right to take account of resources both when assessing needs and when deciding whether it is necessary to make arrangements to meet those needs. I should stress, however, that there will, in my judgment, be situations where a reasonable authority could only conclude that some arrangements were necessary to meet the needs of a particular disabled person and in which it could not reasonably conclude that a lack of resources provided an answer.
It is therefore at the very least arguable that the fact that resources are finite and have to be allocated according to some criteria will not justify a blanket refusal to treat alcoholics or drug addicts. There is no doubt that such persons possess a compelling medical need and that the duty to treat them is exactly the same in law as it is in respect of such innocent or deserving cases such as children with leukaemia or requiring a kidney transplant. It should further be borne in mind that the role of the courts in such resource allocation is strictly limited. In R v Cambridge HA ex p B, Sir Thomas Bingham MR reminds us:
the courts are not, contrary to what s sometimes believed, arbiters as to the merits of cases of this kind. Were we to express opinions as to the likelihood of the effectiveness of medical treatment, or as to the merits of medical judgment, then we should be straying far from the sphere which under our constitution is accorded to us. We have one function only, which is to rule on the lawfulness of decisions.
A combination of this principle and that enunciated in Mahfood (supra) renders it highly unlikely that a policy decision not to treat alcoholics or drug addicts would be regarded as lawful. Once their medical need has been established, it should be judged according to exactly the same criteria as the needs of those suffering from other conditions. Failure to do so on the basis of disapproval of what might be regarded as self-inflicted harm would almost certainly be regarded as an unreasonable exercise of discretion and struck down upon judicial review.
This is not to say, however, that addicts of this type will never in practice be discriminated against in the receipt of medical services. There are instances in which the clinical reality outweighs the philosophical or even moral considerations. Mason and Laurie cite the case of a Mr McKeown in New Zealand. He was aged 76 years and in the final stages of renal failure. He also suffered from prostate cancer and coronary artery disease. He was denied dialysis on the basis that his age and life expectation placed him outside the guidelines for this type of treatment. His family complained to the Human Rights Commission of New Zealand. As a result the hospital authorities ordered a clinical review of his case ad dialysis was commenced. In any event, he died some 18 months later. These authors take the view that the treatment, at best, served no more than a doubtfully useful purpose and, at worst, may have deprived a more deserving claimant of therapy. It is argued, however, that it is possible to take the alternative view that all persons suffering from renal failure will die at the same rate and that there is therefore no distinction to be drawn between them on the basis of anticipated length of survival. They conclude:
Our inclination is to adopt [this] stance - but we freely admit that intuition does not solve the underlying dilemma.
This example serves to highlight the even greater dilemma in cases of self-harm through substance abuse. If it might be argued that it was appropriate to discriminate against Mr McKeown on the basis of his suffering from two other potentially fatal but unrelated conditions, it is all the easier to argue that in an environment of scarce resources, the patient who is the author of his own misfortune should not be placed upon an equal footing with those who have not contributed to their condition in the same way. This demonstrates the overlap of legal and resource-based policy considerations with the purely moral considerations which are discussed in further detail below.
However, before turning to such issues, it is instructive to consider how the condition of the alcoholic or drug user might unwittingly impact upon the selection process. An approach favoured by health economists is known as Quality Adjusted Life Years (QALY). This produces a score based on the number of years of life expectancy and the quality of life during those years. A year of healthy life expectancy is scored as 1 and a year of unhealthy life expectancy as less than 1; death is taken as 0 and a quality of life judged to be worse than death attracts a minus score. This approach may be criticised, however, on the basis that it does little more than reduce to an arithmetical model the type of intuitive judgments which would be made by a competent physician. In the case of the alcoholic or drug addict, it is unlikely that such a practitioner would think highly of the quality of life likely to be enjoyed by such a person following treatment. Another criterion which may be applied is the likelihood of recurrence of the condition. Buhler et al point out that in the case of liver transplantation, the degree of liver failure is easily evaluated by objective medical tests. However, other criteria should be applied in such cases. Evaluation of the mental status is more difficult. Some objective criteria are available to assess the degree of addition but not to forecast the likelihood of recurrence. Many centres will require a period of abstinence for 6 months together with psychological evaluation before committing to a transplant. It is submitted that such an approach has some merit in that the demonstration of a degree of commitment on the part of the patient is likely to be indicative of a greater prospect of avoiding recurrence of the condition in the future and may have the additional benefit that some livers will be capable of self-repair during the waiting period thus rendering an eventual transplant unnecessary. However, these authors go on to point out a practical obstacle to treating the unrepentant and still active alcoholic:
Organ donation depends on the general public's opinion of medicine and organ transplantation. If certain patients are saved by organ transplantation, recurrence of alcoholism after transplantation may have disastrous effects on public opinion and organ donation.
A Swiss Television survey of intensive care nurses found that such nurses held a negative view of liver transplant patients supposing (mistakenly in many cases) that the majority of such patients have alcoholic cirrhosis. If such a view is capable of being held by health professionals, it is hardly surprising that a substantial portion of public opinion in respect of George Best's post-operative behaviour was unsympathetic.
In this moral debate, there are those who carry the argument to still farther extremes. Perhaps not surprisingly, much of this emanates from the USA. David Perry, Ph.D. questions whether convicted felons should receive organ transplants. In January 2002, there was a public outcry when a convicted felon was given a new heart at Stanford Medical Centre. The cost to California taxpayers of the transplant and the post-operative care was estimated at $1 million. This treatment had been defended by the Department of Corrections as being in accordance with an inmate's constitutional right to health care and based upon a 1976 US Supreme Court decision that the deliberate withholding of such care constituted cruel and unusual punishment and violated the Eighth Amendment to the Constitution. Perry, however, advocated the view that those who had deliberately threatened the lives of others had forfeited whatever moral claim they had to an organ transplant. While conceding that organs should in general be distributed according to need and the probability of the transplant succeeding, he opined:
if we knowingly commit such crimes and thus violate others' basic rights not to be harmed or killed, we lose the right to an organ transplant when it could save the life of an innocent person.
It s a short step from this application of the concepts of guilt or innocence as determining entitlement to a transplant to the application of a similar principle to substance-abusers thus branding them as guilty and consequently unworthy of treatment. There is thus a shift from the concept of distributive justice in the allocation of resources such as donor organs to a biblical notion of retributive justice. Mark Blocher argues that a characteristic of the current age is to deny personal responsibility whereas alcohol and drug abuse are prime examples of choices which have a direct impact upon personal health:
Add to this the common notion that modern medicine can fix whatever goes wrong and you can quickly understand why the demand for organs continues to exceed the supply.
It is submitted that this is an overly simplistic analysis. The supply and demand problem has as much to do with shortage of donors and a multiplicity of other conditions as it is related to the willingness of certain individuals to destroy their own health. However, Blocher validly uses biblical teaching to illustrate one aspect of the moral argument:
Americans believe that they should be free to live however they choose, and that modern medicine will prevent or repair the consequences. Such a mindset ignores the biblical principle of sowing and reaping (Galatians 6:7).
However, is it appropriate to translate such principles into a denial of treatment to certain categories of patient who are regarded as blameworthy? Jeffrey Kahn, Director of the Centre for Bioethics at the University of Minnesota, argues that there are problems in such an approach. He observes that the majority of liver transplants are for Hepatitis C infection (associated with intravenous drug use and alcoholic liver disease. As observed above, to address the issue of personal responsibility, many treatment centres require potential recipients to be drug and alcohol free for a stipulated period. (This has the ironic effect that patients who are required to abstain from methadone in order to qualify for treatment are therefore rendered more likely to return to mainstream drug abuse.) Kahn acknowledges that there has always been a sense that it is unfair to give the same priority to a patient who needs a liver transplant because he abused alcohol as to one who contracts a disease. This is partly because of the concern that the alcoholic will drink away the new liver and effectively waste it. However, as the Human Genome Project progresses, it is not unreasonable to suppose that it will be discovered that in the case of some patients at least, there is a genetic disposition to substance abuse and addiction. If this should prove to be so, it can hardly be justified to distinguish between, for example, the patient with renal failure as a result of a cause unrelated to alcohol and the alcoholic patient suffering from damage caused by drinking when it might be appropriate to regard the alcoholism as a disease over which the patient has no more control than the contracting of any other disease.
It may be concluded therefore that the whole debate over whether there are moral justifications for refusing treatment to a patient who is an alcoholic or has a serious drug dependency is based upon an unfortunate and possibly mistaken premise. Fundamental concepts of justice are based on the premises that an individual must take responsibility for his own actions and where those actions are inappropriate, he must be made to bear the adverse consequences thereof. Such a philosophy is entirely appropriate in the criminal law. When society has established norms of acceptable behaviour, transgression of those norms should result in punishment in order to provide a deterrent effect both upon the individual concerned and upon other members of society whose behaviour will be guided by knowledge of consequences gained from the example that is made of the offender. It is submitted, however, that such Old Testament-style retributive justice is entirely inappropriate in the field of medical ethics. It will be seen from the analysis above and, in particular, the instances in which the courts have been compelled to adjudicate upon the withdrawal or refusal of treatment that the moral dilemma has its roots in the finite nature of medical resources. It s to be hoped that in a Utopian situation of unlimited resources, consideration would not be given to withholding treatment even where the recipient was deemed for whatever reason unmeritorious. In reality, resources will always be limited to some degree and hard choices will be inevitable. It is suggested that the hard-line approach of commentators such as Perry who advocate withholding of treatment on the grounds of merit or lack thereof wholly unrelated to the cause of the medical condition in question has no place in a civilised society. However, the argument that alcoholics and drug users should be accorded a lower priority than patients who have patently not abused themselves and contributed to their condition is superficially plausible. It will always be impossible to answer the question of why it can be morally correct to accord treatment resources to those who are seen to be responsible for their own conditions if the result of this is that a comparatively innocent patient will die as a result of the choice. The compassionate answer is perhaps to be found in the view that the substance-abuser is just as much a victim deserving of consideration as the patient who is diseased from some other cause. This will never be a popular view and given the type of hard case discussed above is unlikely ever to gain widespread acceptance. A possible rationalisation of the retributive instinct can be found in consideration of likely post-operative quality of life and selection on the basis of prospects of success. An assessment of the latter could properly include consideration of the likelihood of the patient reverting to his previous damaging behaviour. Denial of treatment would not then be on the basis of punishment of the consequences of what is perceived to be irresponsible behaviour but rather a determination to afford limited resources to those who are objectively most likely to benefit from them.
Bibliography
Anantharaju, A. & Van Thiel, D., Liver Transplantation for Alcoholic Liver Disease, www.pubs.niaaa.gov.publications/arh27-3/257-269.htm
Blocher, M., A Biblical and Theological Appraisal of Organ Transplants, Biblical Bioethics Adviser, Volume 3, Issue 3, 1999
Buhler, L et al, Liver transplantation for alcoholic liver disease: a medical and ethical debate, Swiss Med Weekly 2002: 132: 298, www.smw.ch
British Medical Association, Medical Ethics Today, (2nd Ed., 2004)
Case Comment: R v Cambridge HA ex p B, JPIL 1995, Sep. 141-143
Kahn, J., Transplants and Personal Responsibility, Thornton, S., The Child B Case - Reflections of a Chief Executive, (1997) 314 BMJ 1838
