chapter 4 ethical issues - princeton

chapter 4

Ethical Issues

CONTENTS

PageIntroduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................141

The Relationship Between Ethics and Law . . . . . . . . . . . . . . . . . . . . . . . .......141Ethics in Clinical Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...............141

Ethical Issues in the Care and Treatment of Individual Patients . .............142Withholding. Withdrawing . . . . . . . . . . . . . . . . . . . . . . ....................142Direct v. Indirect Effects . . . . . . . . . . . . . . . . . . . . . ........................143Letting Die and Killing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................143ordinary and Extraordinary Means of Treatment . . . . . . . . . . . . . . . . . . . . . ...145Levels and Kinds of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....147Major Considerations in a Typology of Withdrawing and Withholding

Life-Sustaining Medical Treatment. . . . . . . . . . . . . . . . . . . . . . ..............149Defining Suicide and Its Application to Cases of Elderly People Receiving

Life-Sustaining Technologies. . . . . . . . . . . . . . . . . . . . . . ...................149Ethical Implications of Distributing Life-Sustaining Technologies. . . ...........151

The Interface Between the Ethics and Economics of Distributive Justice .. ...152Major Theories of Distributive Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......152Implications of Theories of Justice for the Use of Life-Sustaining

Technologies With the Ill Elderly. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....153Consideration of Age as a Criterion in the Allocation

of Technological Resources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156Findings and Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ....161Chapter 4 References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......162

Chapter 4

Ethical Issues

INTRODUCTION

Modern science has brought about dramaticchanges in medical care, particularly since theearly 1950s, and technology now gives people con-siderable power to alter both the quality andlength of human life. However, the use of life-sustaining technologies such as the five examinedin this assessment—resuscitation, mechanical ven-tilation, dialysis, nutritional support, and life-sustaining antibiotics—raises many importantethical questions. Society thus finds itself askingdifficult questions about individual rights, theprocesses of living and dying, and the proper dis-tribution of technological resources. The use oflife-sustaining technologies necessitates the devel-opment of an ethical vision that is acute enoughto discern the needs and wants of particular indi-viduals and yet wide-ranging enough to guide con-temporary public policy. This chapter explainssome of the major ethical debates that have oc-curred in the public, academic, and clinical do-mains about these issues.

Ethical analysis can help clarify ethical dilemmas.Such dilemmas occur where any possible solutionto a problem seems to involve some type of harmor where it only seems possible to achieve a goodoutcome through the use of unethical means. Inthese difficult cases, ethical analysis may not pointdefinitively to one and only one “right” answer,but it can clarify competing systems of justifica-tion for certain courses of action. It can also showwhere different principles or methodologies fordecisionmaking are needed. (For an internationallist of organizations specializing in ethical analy-sis, see app. D.)

The Relationship BetweenEthics and Law

It is a fact of life in our society that an emergingmoral or ethical consensus may not be embodiedin existing statutes and that the legal system mayactually pose barriers to the resolution of ethical

dilemmas. Nonetheless, legal cases in which therights and interests of competing parties are ad-judicated provide public access to the analysis ofcompeting points of view. These points of viewoften consist of important ethical arguments.

The growth of newer types of deliberative bod-ies such as institutional ethics committees providesan important alternative or adjunct to the legalsystem. A terminally ill elderly person, for exam-ple, cannot wait for the results of a protractedlegal battle to evaluate his or her claims and prefer-ences for or against life-sustaining treatment. Inaddition, the establishment of a legal precedentconcerning one use of a particular life-sustainingtechnology may not be relevant or meaningful inother cases. Certain features of the legal systemmay make it difficult to resolve the ethical dilem-mas associated with the use of life-sustaining tech-nologies.

Ethics in Clinical Practice

The growing role of ethicists and ethics com-mittees in health care settings is an important de-velopment. Several State courts have specified arole for institutional ethics committees in all de-cisions to withdraw or withhold life-sustaining

Photo credit: Hennepin County Medical Center, Minneapolis, MN

Biomedical ethics committee at work.

141

142 . Life-Sustaining Technologies and the Elderly

treatment (see ch. 3). Ethics committees can pro- at times of crisis. Reservations about the utilityvide an opportunity for multidisciplinary input of ethicists and ethics committees usually centerregarding problems that require several types of on the way in which their input will be used andexpertise and their membership can represent the the amount of authority that will be given to theirplurality of values present in American society. recommendations. Guidelines about the roles ofCommittee deliberations can build consensus that ethicists and ethics committees are still in an earlymay also be helpful to patients and their families phase of development (17).

ETHICAL ISSUES IN THE CARE AND TREATMENTOF INDIVIDUAL PATIENTS1

Four ethical principles are of great use in analyz-ing dilemmas concerning the use of life-sustainingtechnologies:

1.2.

3.

4.

Beneficence = being of benefit to others;Nonmaleficence = not harming—includingnot killing-others (sometimes viewed as asubset of the principle of beneficence) (26);Respect for persons = treating others asends in themselves and showing regard fortheir autonomy (sometimes called the prin-ciple of respect for persons or the principleof autonomy); andJustice = treating others fairly according toprinciples of equity in the distribution of ben-efits and burdens.

Other independent or derivative principles havebeen recognized, including privacy, truthfulness,and fidelity in keeping promises and contracts(6,42).

Because of the strong prohibitions that are de-rived from the second principle, which in theHippocratic tradition of medicine is interpretedas “first or at least do no harm, ” both suicide andmercy killing are generally prohibited in our so-ciety. Death is viewed as a major-often the ma-jor—harm, and thus deliberately engaging in ac-tions that bring about, hasten, or cause death isan obvious wrong as a violation of the principleof nonmaleficence. This principle is so importantthat most traditions tend to justify killing personsonly in self defense, war, and capital punishment.Most traditions tend to view acts that cause thedeaths of innocent persons, even those who aresuffering greatly, as justifiable only if they do notinvolve the direct killing of those persons.

‘This section is based in part on a paper prepared for OTA byJames F. Childress, 1985 (14).

In decisionmaking about life-sustaining technol-ogies, distinctions are sometimes made betweenwithholding v. withdrawing treatment, direct v.indirect effects of actions, letting die and killing,and ordinary and extraordinary means of treat-ment. These distinctions are analyzed below.

Withholding v. Withdrawing

Physicians, nurses and other health careproviders often feel that the distinction betweenwithholding (not starting) and withdrawing (stop-ping) life-sustaining technologies is very impor-tant, even though it is hard to defend in termsof various ethical traditions. The following caseillustrates the appeal of this distinction:

Ch. 4—Ethical Issues • 143

144 ● Life-Sustaining Technologies and the Elderly

This case cannot be brought under the rule ofdouble effect for “allowed deaths”; the medica-tion was not given to relieve pain at the risk ofhastening death. It was not a case of letting thepatient die but rather one of directly and activelykilling the patient at his request by the adminis-tration of toxic drugs.

Sometimes the distinction between killing andletting die is discussed under other headings, suchas omission and commission or passive and ac-tive, because it is argued that more descriptiveterms are needed to replace “killing,” which mostpeople tend to view as wrong, and “letting die,”which most tend to view as right. Thus, the Presi-dent’s Commission (30) used the descriptivephrases: actions that lead to death and omissionsthat lead to death. Whatever terms are employed,the issues are the same.

Most ethical traditions have a rule prohibitingthe direct, active killing of patients, even thoughthey disagree about the foundations of that rule.Some traditions hold that it is intrinsically wrongto kill innocent persons; others hold that it is notintrinsically and absolutely wrong to do so, forexample, when the suffering patient requests“mercy killing,” but that a rule prohibiting mercykilling is necessary to prevent bad consequencesfor future patients and ultimately for the society.Thus, many people who deny that acts of killinginnocent persons are always wrong still supporta rule of practice that prohibits such acts becauseof the dangers of abuse, loss of trust between pro-fessionals and patients, and subversion of the so-cietal commitment to the protection of human life.

Some critics hold that there is no intrinsic ethi-cal difference between killing and letting die andthat “letting nature take its course” is not appro-priate when interventions are available. Thesecritics argue that whether there is an ethical dif-ference between killing and letting die will dependon the circumstances of the case. Thus, in a widelydiscussed article, one philosopher contends thatthe “bare difference” between acts of killing andacts (omissions) of letting die is not in itself an ethi-cally relevant difference. He argues his point bysketching two cases that differ only in that oneinvolves killing, while the other involves allow-ing to die, and asks whether we would make differ-ent ethical judgments about the cases (31). In thosecases—killing a 6-year-old cousin or letting himdie to gain a large inheritance—both acts areequally reprehensible because of the agent’s mo-tives, ends, and actions or inactions.

But reprehensible illustrations may obscure thesignificance of the distinction in other cases whereagents are trying to benefit (rather than harm)patients and where they are also concerned aboutbroader social consequences and protecting so-ciety’s commitment not to let innocent people bekilled. Although the distinction between killing andletting die may not be important in some contexts,this distinction may be important in other cases,because of other moral principles and rules.

The prohibition against direct, active killing ofinnocent persons is built into the legal system aswell as into professional codes and religious andhumanistic traditions. Arguments to change thisrule often appeal to cases of extreme, intractablepain and suffering, usually related to a slow deathfrom cancer. According to critics of the rule, afailure to kill a patient in circumstances wherethe patient pleads for ‘(mercy” is cruel and in-humane.

Several counterarguments have been offered,however. First, it is not clear that there are manycases of uncontrollable pain and suffering; in themedical setting (perhaps in contrast to the battle-field or an accident) pain can usually be controlled,although its relief may hasten death (which isacceptable according to the rule of double effect).A second argument is that permitting mercy kill-

Ch. 4—Ethical Issues ● 145

ing will divert attention from finding methodsshort of killing, for example, institutional and so-cial options such as hospices that can reduce thepain and suffering to tolerable levels and permitcompassionate social and personal attention fromthe community.

Since the need to change society’s standard inorder to allow mercy killing to relieve pain andsuffering is uncertain, and since such a changepresents potential dangers to society throughabuse, decline of trust within medical relation-ships, and the threat to the principle of nonmalefi-cence that prohibits killing, there do not appearto be sufficient reasons to change the prohibitionagainst killing. Some people argue that the bur-den of proof should be on those who would main-tain a rule that infringes on the principle of au-tonomy. However, it is plausible to argue that thepolicy and practice of prohibiting killing (whileaccepting some cases of allowed deaths) has servedsociety well, though not perfectly, and that theburden of proof should rest on those who arguefor changing it. Many commentators contend thatthis burden has not been met (6).

In addition, there are ways to ‘{accept” some ex-ceptional cases of mercy killing without chang-ing the current legal and social prohibition—e g.,prosecutorial discretion, jury findings of not guiltyby reason of temporary insanity, and recognitionof “mercy” as a factor that mitigates punishmenteven though it may not exculpate the agent. Evenwith these informal exceptions, the rule may serveas a valuable reminder of the principle of non-maleficence (first of all do no harm). Althoughsome people argue that a regulatory scheme toassure that the patient really wants to die wouldprevent abuses, the formalization of such a proc-ess would have its own costs because it wouldinvolve society prospectively and directly in choos-ing and implementing mercy killing.

Even if the distinction between killing and let-ting die is accepted as a social and legal rule, de-bates will continue about where the line shouldbe drawn between the two concepts. It is not suffi-cient to point to the categories of active and pas-sive or acts and omissions. Nor is it simply a mat-ter of identifying the cause of death becauseidentifying “the cause” in ethical and legal settingsis in part a moral as well as an empirical matter.

Some ambiguity and uncertainty about the linebetween killing and letting die will always existand different health care professionals and otherswill draw it in different places, as was shown inCase 1. However, there are some clear cases ofdirect, active killing, such as Case 2, and it is notunreasonable to continue to prohibit them evenas society continues to assess where the line shouldbe drawn.

Ordinary and Extraordinary Meansof Treatment

Originally formulated in Roman Catholic moraltheology, the distinction between ordinary andextraordinary means of treatment has been widelyadopted in other ethical traditions and in legal de-cisions and professional codes. For example, af-ter rejecting mercy killing or the “intentional termi-nation of the life of one human being by another, ”the American Medical Association House of Dele-gates in 1973 held that the patient and/or his im-mediate family can decide about the “cessationof extraordinary means to prolong the life of thebody when there is irrefutable evidence that bio-logical death is imminent” (l).

The distinction was originally used to determinewhether a patient’s refusal of treatment shouldbe classified as a suicide. Refusal of “ordinary”means of treatment was viewed as suicide,whereas refusal of “extraordinary” means was notviewed as suicide; withholding or withdrawing“ordinary” means from a patient was homicide,whereas withholding or withdrawing “extraordi-nary” means was not considered homicide.

According to one interpreter of the distinction,ordinary means are all medicines, treatments, andoperations that offer a reasonable hope of bene-fit for the patient and that can be obtained andused without excessive expense, pain, or otherinconvenience (19). Extraordinary means are allmedicines, treatments, and operations that can-not be obtained or used without excessive expense,pain, or other inconvenience, or that, if used,would not offer a reasonable hope of benefit. Thedistinction does not refer to properties of medi-cal practice or of the technologies themselves.Rather it hinges on two criteria: whether any par-ticular medical treatment offers a reasonable


chance of benefit and whether its probable bene-fits outweigh its probable burdens, including ex-pense and pain.

The language of ordinary and extraordinarymeans is subject to criticism because it focusesattention on customary medical practice and tech-nologies rather than on underlying principles andvalues. Hence technologies are sometimes viewedas ordinary if it is usual or customary for physi-cians to use them for certain diseases or prob-lems and extraordinary or heroic if use is not cus-tomary. The patient as a person often disappearsfrom view. Several other criteria have been in-voked to distinguish ordinary from extraordinarymeans of treatment: their simplicity (simple/com-plex), their naturalness (natural/artificial), theirexpense (inexpensive/costly), their invasiveness(noninvasive/invasive), their chance of success(probable/improbable), and their balance of ben-efits and burdens (proportionate/disproportion-ate). It is alleged that a technology that meets thefirst of the paired terms is closer to ordinary, whileone that meets the second of the paired terms iscloser to extraordinary.

Some ethicists propose to replace the terms or-dinary and extraordinary with other terms thatare less misleading (33,40). “Ordinary” could beredefined to mean morally obligatory, mandatory,required, or imperative, while “extraordinary”could be used to mean morally optional, elective,or expendable. These terms seem to reflect thepractical point of the distinction more clearly. Butif the new meanings are accepted, there is stillthe question about which criteria can adequatelydistinguish obligatory from optional treatmentsin particular circumstances.

If the criteria that distinguish ordinary fromextraordinary appear to be relevant in a givencase, it may be because they express other prin-ciples and values, such as acting in accord witha patient’s wishes (the principle of autonomy) andin accord with a patient’s interests (the principlesof beneficence and nonmaleficence). For exam-ple, if an available treatment is simple and natu-ral but not in accord with a patient’s wishes andinterests, it is hard from the patient’s perspectiveto see why it should be handled differently thananother treatment that is complex and artificial.

Furthermore, many of the criteria are unclear.According to one study conducted after the Nat-ural Death Act was implemented in California,physicians in that State generally viewed mechan-ical ventilation, dialysis, and resuscitation as “arti-ficial,” but split evenly on intravenous feeding.Two-thirds viewed insulin, antibiotics, and chemo-therapy as “natural” (35). Other criteria, such asthe degree of invasiveness (noninvasive/invasive)and cost (expensive/costly), may be ethically rele-vant in view of the patient’s overall condition, in-terests, and preferences.

The main consideration for many ethical tradi-tions is consistent with what has been called thecriterion of “proportionality”:

Is it necessary in all circumstances to have re-course to all possible remedies? In the past,moralists replied that one is never obliged to use“extraordinary” means. This reply, which as aprinciple still holds good, is perhaps less cleartoday, by reason of the imprecision of the termand the rapid progress made in the treatment ofsickness. Thus some people prefer to speak of“proportionate” and “disproportionate” means. Inany case, it will be possible to make a correct judg-ment as to the means by studying the type of treat -ment to be used, its degree of complexity or risk,its cost and the possibilities of using it, and com-paring these elements with the result that can beexpected, taking into account the state of the sickperson and his or her physical and moral re-sources (37).

In general, the distinctions between withhold-ing and withdrawing, direct and indirect effects,killing and letting die, and ordinary and extraordi-nary means do not provide ethical answers, al-though they may reflect important ethical con-siderations. Whether these distinctions arevaluable will depend then on whether they il-luminate or distort the relevant ethical consider-ations that have been identified as part of a wide-spread consensus in a pluralistic society. Accordingto several ethical traditions, the relevant consider-ations are the patient’s wishes and interests, inlight of his or her condition and in view of theoverall societal allocation of resources and the ne-cessity of some societal rules, such as the prohi-bition of killing.


Levels and Kinds of Care

Some commentators suggest that distinctionsbetween levels and kinds of technologies have ethi-cal implications. In an article on the physician’sresponsibility to “hopelessly ill” patients, theauthors distinguished the following levels of care:

1. emergency resuscitation;2. intensive care and advanced life support, in-

cluding mechanical ventilation;3. general medical care, including antibiotics,

dialysis, and artificial hydration and nutrition;and

4. general nursing care, including pain relief,hydration, and nutrition for patient comfort(43).

The five technologies that are the subject of thisreport —resuscitation, mechanical ventilation, di-alysis, nutritional support, and life-sustaining anti-biotics—are at different levels in this hierarchy.

The application of distinctions between levelsof care in withholding or withdrawing treatmentis illustrated in the following cases, each involv-ing a severely ill elderly patient.

maintain fluid and nutritional intake for thiselderly patient who had made no recovery froma massive stroke and who was largely unawareand unresponsive. After much mental anguish anddiscussion with the nurses on the floor and withthe patient’s family, the physicians in chargedecided not to provide further IVs or a feedingtube, and to allow Mrs. X to die. She had minimaloral intake and died quietly the following week.

In Case 3, the family and staff decided to letMrs. X die even though they could have prolongedher life for some time through artificial nutritionand hydration. One major issue in drawing linesis whether all medical treatments can be construedas “heroic” or “extraordinary” if they are out ofproportion with the patient’s wishes and inter-ests. This question has been examined in severalmajor court decisions and widely discussed (10, 11,12)22) in efforts to determine:

●

●

●

If

whether nutrition and hydration by periph-eral or central intravenous lines, nasogastrictubes, or gastrostomy tubes are more simi-lar to other medical treatments, such as me-chanical ventilation, or more similar to theprovision of food and water by mouth;whether they are needed for comfort and dig-nity even when they are morally optional forthe prolongation of life; andwhether they so symbolize care and com-passion that to withhold or withdraw themwould threaten the foundation of humaneand respectful medical care and, ultimately,social interaction.

nutrition and hydration through medicalmeans are similar to other medical treatments,then their use can be decided according to thecriteria used for these other treatments. Criticsof this position make several arguments. One argu-ment is that medical nutrition and hydration aresignificantly different from other medical treat-ments because they are essential for comfort anddignity. However, some methods, such as centralintravenous lines involve risks, and some may re-quire that the patient be physically restrained.Another argument is that in withdrawing medi-cal nutrition and hydration, the agent intends oraims at the patient’s death (25). However, this in-tention may be present in other cases, such as


removing the mechanical ventilator, and may notbe inappropriate in all cases.

Probably the major criticism of failing to distin-guish medical nutrition and hydration from othermedical treatments stresses the symbolic signifi-cance of these activities, contending that the sim-ilarities among all acts of providing nutrition andhydration are so great that it is impossible to dis-tinguish their methods (e.g., a gastrostomy fromnormal feeding). These acts are not only meansto the ends of sustaining life and providing com-fort; they also express the values of care and com-passion.

Finally, concern about symbolic actions alsoleads several critics to believe that to accept thewithholding or withdrawing of nutritional sup-port and hydration, in any case, could lead to un-desirable consequences for society as a whole.First, they believe even compassionate calls forwithdrawing fluids in a few selected cases bearthe seeds of great potential abuse. This fear arisesif the act of withholding fluids is seen as a firststep along a “slippery slope)” where the standardof care shifts from actions in accord with the pa-tient’s interests to actions in accord with the soci-ety’s interests, from the patient’s quality of lifeto the patient’s value for society, from dying pa-tients to nondying patients, from letting die to kill-ing, from cessation of artificial feeding to cessa-tion of natural feeding, etc.

While these fears may be exaggerated, they haveto be taken seriously, especially because of possi-ble new threats of undertreatment as a result ofcost-containment measures. This is a stark con-trast to earlier threats of overtreatment, Simplystated, there is a danger that the “right to die”may become the “duty to die)” even against thepatient’s wishes and interests (10). Although it isnot clear that this danger can be avoided by man-dating artificial nutrition and hydration in all cases,continuing fluids, even to dying patients, providesan important clinical, psychological, and sociallimit to acceptable withdrawals that some peoplebelieve should be retained (38).

Policies regarding cardiopulmonary resuscita-tion (CPR) have emerged separately and in someindependence from policies about other life-sus-taining technologies, such as mechanical ventila-


vasopressor therapy. The physicians judged thatno reversible disease was present. With the con-currence of her son, treatment with vasopressoragents was discontinued, a DNR order was writ-ten, and she was allowed to die (21).

When a patient’s wishes and interests are con-sidered, important distinctions can be drawn re-garding levels and types of care, pertaining bothto the range of CPR procedures and to other treat-ments. However, these distinctions cannot be as-sumed to hold in all cases because, as Case 4 indi-cates, medical treatments as such are not alwaysobligatory. Whether they are obligatory or op-tional in a particular case is a judgment call basedon the patient’s wishes and interests in the con-text of a just allocation of societal and hospitalresources and social rules to prevent unaccept-able consequences.

Major Considerations in a Typologyof Withdrawing and Withholding

Life-Sustaining Medical Treatment

In proposed topologies of withholding and with-drawing life-sustaining medical treatment, the fol-lowing issues are among the most important (14):

● How is death brought about?● Who brings it about?● Who decides?● Why is death brought about?

The major distinctions discussed so far have fo-cused primarily on how death is brought about.Although “euthanasia” is sometimes defined byits etymological roots (from the Greek, eu +thana-tos =good or easy death), its more common, con-temporary usage denotes “mercy killing.” Theterms “active euthanasia” and “passive euthana-sia” are sometimes used. The distinctions betweendirect and indirect effects and ordinary and extra-ordinary means are also relevant to possible to-pologies of withholding or withdrawing life-sus-taining technologies.

Despite some overlap, there is an important dis-tinction between who acts and who decides. Someanalysts ignore the distinction between agentswho act and concentrate on agents who decide;thus, Mayo (24) insists that “voluntary active eu-

thanasia is assisted suicide,” and Tonne (39) sug-gests that the term “suicide” should be replacedby the term “autoeuthanasia.” However, it is asimportant to preserve the distinction regardingwho acts as it is to preserve the distinction in deci-sionmaking; who acts is important in distinguish-ing suicide from other actions. The line between“assisted suicide” and ‘(voluntary, active euthana-sia,” which both involve killing, is determined bywho is the final actor, the patient or someone else.However, the question of who decides remainsimportant in cases of “euthanasia” or “mercy kill-ing,” which may be voluntary or involuntary fromthe standpoint of the patient.

Finally, it is also important to consider thegrounds of the decision–the why of thedecision—regardless of who makes it and carriesit out. The major distinction is between reasonsbased on the patient’s interests and reasons basedon the interests of others, such as the family orsociety. These reasons are not always incompati-ble, but possible tensions should be noted, par-ticularly when a decision is made by someoneother than the patient for the interests of partiesother than the patient. Thus, it maybe necessaryto develop procedures to protect patient decision-making and patient wishes and interests (as dis-cussed in several places in this report).

Too many variables are involved in decisionsabout withholding or withdrawing life-sustainingtreatments to permit tight and illuminating typol-ogies. But important themes can be used to de-scribe and evaluate various acts, some of whichwill also appear in the discussion of suicide andits relation to the refusal of life-sustainingtreatments.

Defining Suicide and Its Applicationto Cases of Elderly People Receiving

Life-Sustaining Technologies

Growing attention is being paid to the idea thatindividuals may want to exert direct control overthe timing of their deaths by withdrawing life-sustaining technologies or by taking specific medi-cations in lethal amounts (13). The empirical rela-tionship between the use of the life-sustainingtechnologies and deliberate deaths cannot bequantitatively described because no data are avail-

150 . Life-Sustaining Technologies and the Elderly

able. In addition, important conceptual problemsneed to be considered in order to talk about sui-cide and assisted death in meaningful ways.

There is no clear, neutral, widely accepted def-inition of “suicide.” Suicide is always defined withintraditions that make normative as well as concep-tual points—the definitions are intended to guidebehavior. For example, some traditions hold thatsuicide is always wrong and then sharply distin-guish acts of suicide from other acts that lead toone’s own death. Other traditions hold that sui-cide can be justified under some circumstancesand thus do not worry as much about the linebetween suicide and other acts that cause one’sown death. Justified exceptions to a rule prohibit-ing suicide within one tradition may be built intothe definition of the rule in another tradition. Forexample, one tradition might justify acts of sui-cide to save others, while another tradition mighthold that acts that are intended to help othersrather than to bring about one’s own death (suchas falling on a grenade to save one’s comrades)are not really acts of suicide and thus do not vio-late the rule against suicide.

At the very least, the concept of suicide involves:1) a person’s death, and 2) that person’s involve-ment in his/her death. For an act to be consid-ered a suicide it is necessary for a person to haveintentionally brought about his or her own death,but these criteria are not sufficient to definesuicide.

The questions and distinctions developed in theprevious section suggest some key points: whodecides? In suicide, the one whose death is broughtabout makes the decision for death. Who acts?In suicide, the final actor, however much assis-tance is involved, is the one whose death is broughtabout.

As these metaphors suggest, in suicide the per-son whose death is brought about both decidesand acts. If the agent did not decide and act volun-tarily, that is, apart from coercion by others, theact of killing oneself would not be an act of sui-cide (5). Nevertheless, disputes arise, particularlyabout determining the intentionality of the act.At the very least, knowledge that an action willprobably bring about one’s own death is usuallysufficient for suicide.

How is death brought about? In some religioustraditions, when death is brought about by let-ting nature takes its course rather than by kill-ing, by indirect rather than by direct means, andby forgoing extraordinary rather than ordinaryprocedures, the act is not considered suicide, espe-cially if death from disease is inevitable and im-minent whatever is done. In general, the moreactive the means of bringing about death and thecloser the temporal association between the ac-tion and the death, the more likely the death isto be considered a suicide. Thus, several factorsdistinguish refusals of treatment from acts of sui-cide. These factors are:

. whether the person is already terminally illso that death is imminent regardless of whatis done;

● whether the means of death is active ratherthan passive and involves action rather thanomission; and

. whether the death results fairly quickly af-ter the action or omission.

Judgments about the role of these factors affectwhether an act is considered negative (suicide)or neutral (refusal of life-sustaining treatment).For example, one commentator notes, “to the ex-tent that we have unmistakable cases of actionsby an agent that involve an intentionally causeddeath using an active means where there is a non-fatal condition, the more inclined we are to clas-

Ch. 4—Ethical issues “ 151

sify such acts as suicides; whereas to the extentsuch conditions are absent, the less inclined weare to call the acts suicides” (5).

Case 6: When Barney Clark at age 62 becamethe first human to receive a permanent artificalheart on December 2, 1982; he also was given akey that he could use to turn off the compressorif he wanted to die. As Dr. Willem Kolff noted,“If the man suffers and feels it isn’t worth it any-more, he has a key that he can apply ...I thinkit is entirely legitimate that this man whose lifehas been extended should have the right to atit off if he doesnt want it, if life ceases to be enjoyable . . .” (32).

Although Clark’s actions would have beenvigorously debated if he had used the key to endhis life, according to most of the criteria identi-fied it appears that his act should have been char-acterized as a suicide without necessarily prejudg-ing its morality. In some traditions, however, itis not possible to call an act suicide without simul-taneously judging it negatively. Within such tra-ditions, those who viewed the action as morallyacceptable probably would take the position thatthe artificial heart was experimental and extra-ordinary and that Clark simply acted to end anexperiment or to terminate an extraordinarytreatment.

Why is death brought about? It is useful to dis-tinguish two types of suicide or attempted sui-cide (a similar distinction would apply to refusalsof treatment). In goal-oriented conduct, an agentattempts to realize some goal and bring aboutsome effect or consequence. In suicides of thistype, the language of cause and effect is very im-portant; for example, an agent may attempt or

commit suicide because of a belief that death isbetter than a life of pain and suffering or disabil-ity. In expressive acts of suicide-often attemptedrather than actual—an agent conveys a meaningor makes a statement, such as a lack of hope orcontempt for life or an appeal for help or atten-tion. Some acts of attempted or successful suicidemay be both instrumental and expressive.

Case 7: A 62-year-old artist committed suicideon June 9, 1979. Having learned in March 1978that she had beast cancer which had spread toher lymph nodes, she underwent 10 months ofchemotherapy before deciding to commit suicide.With the help of her family and frbnds, she fash-ioned her "life sculpture”-a pine coffin-like boxfilled with personal mementos, and then shewrote a farewell letter to 60 friends, said good-bye toher family and swallowed 35 sleeping pills,washed down with champagne. Her family andfriends cooperated.

This suicide illustrates both instrumental rea-sons (she believed that death was better thansuffering from cancer and chemotherapy) and ex-pressive reasons (she wanted to express her be-liefs about “self-termination” and her convictiontha"life can be transformed into art”). An autopsyindicated tath her cancer had not spread beyondthe lymph nodes to any vital organ (27).

Some traditions tend not to characterize sacrifi-cial acts as suicide. However, there are limits; inCase 2, even if the patient had been able to se-cure and take the lethal medication himself, ratherthan having it administered by his physicians, hisact would have been a suicide despite his otherreason of not wanting to deplete his family’s re-sources. Motives may be and usually are mixed.

ETHICAL IMPLICATIONS OF DISTRIBUTINGLIFE-SUSTAINING TECHNOLOGIES

In addition to the ethical distinctions involved shared, or distributed. The distribution of life-in treating individual patients, there are signifi- sustaining technologies is important because 1)cant ethical issues associated with the way in such technologies may be scarce or expensive; andwhich life-sustaining technologies are allocated, 2) the use of age as a criterion in allocation deci-

~his section is based in part on a paper prepared for OTA by sions has important implications for the hetergene-Robert Nl, t’catch, 1985 (41). ous group of people called the “elderly”.


The problem of how to allocate resources ethi-cally is usually referred to as a problem of jus-tice. Justice is, however, a deceptively ambiguousterm. In a general sense, justice means “the right.”Thus, one might say that it is unjust to tell a lie.Justice in a narrower sense refers to fair distri-bution. It is in this second, narrower sense thatjustice can be examined in terms of the distribu-tion of scarce life-sustaining technologies. Two im-portant questions arise:

1. What are the major theories of a just distri-bution?

2. What are their implications for the use of ageas a basis for allocating life-sustaining tech-nologies?

The Interface Between the Ethics andEconomics of Distributive Justice

The ethical issues raised by the use of life-sustaining technologies for elderly persons areclosely related to the economics of their use. Eco-nomics, however, often only provides data aboutdollar costs per unit of benefit. It can, by exten-sion, provide data about some other costs suchas, social, psychological, and cultural costs. Buteconomic analysis generally does not indicate howcost data ought to be assessed.

Theories of distributive justice are based onunderlying sets of ethical suppositions. One mightemphasize liberty and the rights that accrue withownership of private property; another might em-phasize the goal of maximizing aggregate net ben-efit, maximizing the position of the least well offgroups, or striving for greater equality. Thus, evenif there were complete agreement on the relativecosts and benefits of alternative policy options,it would not necessarily be clear which policyshould be adopted.

Increasingly, however, the critical ethical prob-lems in health care will be distributive justice prob-lems. Under most economic systems, personsought to be permitted to refuse care that they donot find beneficial, provided that the refusal doesnot generate extra costs for society (and normally,it would not). The life-sustaining technologies thatare the focus of this study sometimes offer onlymarginal benefit, but at great costs to third par-

ties (insurers, hospitals, and governments). Inthese cases, the societal costs of care become acritical, ethical problem. Only by choosing a the-ory of distributive justice and integrating that the-ory into the calculations and analyses done to com-pare policy alternatives is it possible to decide howto respond to cases in which care is marginallybeneficial and very expensive to third-party payers.How can goods be fairly distributed? Four majorpositions are responsive to this question: the liber-tarian, utilitarian, maximin, and egalitarian po-sitions.

Major Theories of Distributive Justice

Libertarianism is one of a group of theories”that spells out what persons are entitled to pos-sess. These are sometimes referred to as entitle-ment theories. Libertarianism holds that personsare entitled to what they possess provided thatthey acquired it fairly (29). Fair acquisition includesgifts, exchange (including purchase), or originalappropriation of previously unowned property.Heavily influenced by John Locke and the imageof original appropriation from a state of nature,the libertarian position places great emphasis onindividual liberty. Persons are permitted to dowhatever they want with what they possess pro-vided that they do not violate the holdings ofothers.

Utilitarianism, a second major position, holdsbeneficence or the maximizing of utility as domi-nant. The ‘(right” pattern of distribution is onethat produces the most good. That is the morallogic behind many policy analyses such as thoseusing cost-benefit and cost-effectiveness analyses.These are economic methods for calculating thebenefits and harms of alternative policies to de-termine which one will produce the greatest goodoverall. Thus, when a straightforward cost-benefitanalysis is conducted it shows an implicit com-mitment to utilitarianism.

The libertarian and utilitarian patterns of dis-tribution are obviously very different. What isstriking, however, is that neither necessarily in-volves any redistribution to meet the needs of thepoor, the sick, or the least well off, including theelderly (who may be poor, sick, and/or least welloff). Libertarianism would permit such redistri-


bution as a matter of charity. Utilitarianism wouldbe open to redistributions to the poor if, and onlyif, redistributing resources increased the totalamount of good in society. Such redistributionsoften increase the total amount of good becausethe harm that is likely to be done to the wealthyperson is less than the good that could be donefor poor persons. But there is no inherent moralprinciple that favors equality or redistribution onthe basis of need.

Maximin theorists are concerned about thosespecial cases where distributing things moreequally or distributing in proportion to need willbenefit the least well off. The most important max-imin theorist is John Rawls, whose book, A The-ory of Justice (34) has reoriented 20th centuryphilosophical and public policy analysis of theproblems of distribution. Rawls states that a groupof rational, disinterested people would agree ontwo basic principles to guide the allocation of re-sources in a just society. These principles are:

1) Each person is to have an equal right to the mostextensive basic liberty compatible with a simi-lar system of liberty for others.

2) Social and economic inequalities are to be ar-ranged so that they are both:a) to the greatest benefit of the least advan-

taged, consistent with the just savings prin-ciple, and

b) attached to offices and positions open to allunder conditions of fair equality of oppor-tunity (34).

Since Rawls’ second principle is designed to max-imize the position of the least well off group, thistheory of distribution is often referred to as the“maximin” theory. It holds that there is somethingethically compelling about arranging resourcesso that the group on the bottom is as well off aspossible, even if the result is that the amount ofgood per person is not as great as it could havebeen with some other distribution. The maximinposition provides a powerful intellectual frame-work that overcomes some of the most severeproblems with utilitarianism. Maximin theory, forexample, squares with many people’s moral intu-ition that slavery is wrong regardless of whetherit may do more good than harm.

Egalitarianism is a coherent theory of justiceas well as a theme within maximin theory. Maxi-

min theory is one example of a theory of justicethat places special emphasis on equality as a checkagainst individual liberty and aggregate social wel-fare. It seems to be consistent with important re-ligious and secular strands of Western thought.Some observers, however, have pointed out thatmaximizing the position of the least well off groupdoes not necessarily require moving towardgreater equality. In fact, maximin theory providesa framework for deciding precisely when inequal-ities are morally appropriate.

Several commentators distinguish betweenRawls and other maximin theorists, on the onehand, and ‘(true” or “radical” egalitarians on theother (3,4,28). True or radical egalitarians are com-mitted in a straightforward manner to the goalof equality per se.

The important test case for separating maximintheorists and egalitarians is how they handle sit-uations where the best way to improve the lotof the least well off is to devote substantial re-sources to talented elites to give them an incen-tive to use their skills to benefit those on the bot-tom (trickle down theory). Maximin theorists holdthat in these circumstances, justice requires thatthe resources be given to the well off elites eventhough inequalities will actually increase. Trueegalitarians are distressed at the increases of ine-quality because they see great moral importanceattached to equality as well as to increasingwelfare.

Implications of Theories of JusticeFor the Use of Life-Sustaining

Technologies With the III Elderly

The concept of “terminal illness” was definedin chapter 1 as an illness that has a predictabilyfatal progression that cannot be stopped by anyknown treatment. Terminal illness is distinguishedfrom “critical illness” by the certainty of outcome.Many of the ethical dilemmas surrounding the useof life-sustaining technologies with elderly indi-viduals arise from situations in which the patientis seriously ill and death is a possible outcome.The great uncertainty attached to the course ofcritical illness creates a crisis situation where deci-sionmaking is difficult and complex.

.


The libertarian perspective asks who wouldwant and be able to receive life-sustaining treat-ment if free market forces and charity were theprincipal bases of access. Most life-sustaining tech-nologies are sufficiently expensive that few peo-ple would have access to them, under a libertar-ian distribution scheme, unless they had personalfinancial resources or insurance coverage. Thus,a line would be drawn between elderly personswho either set aside money or purchased healthinsurance (presumably to supplement Medicare)to guarantee their access to treatment. Additionaldivisions could be seen among those elderly per-sons who buy health insurance, according to thelevel and type of coverage they choose. For ex-ample, some persons would choose a health in-surance policy that provides coverage during ter-minal illness, while others would not want suchcoverage. Some would choose coverage for long-term care, while others would view as sufficientcoverage for hospital care. Some would considertheir benefits under Medicare sufficient.

There are problems with this position, however.Most people would at least want life-sustainingtechnologies if they relieved pain and sufferingand relieved it at a relatively low cost. Some mightalso desire more aggressive treatment, but thelibertarian approach would require them to com-pare the benefits of having the insurance cover-age with the benefits of having the money neededto buy that coverage to spend on something else.It is likely that a great many people would forgothe coverage, especially coverage beyond that nec-essary to provide comfort. They would probablybe more willing to buy coverage for life-sustainingtechnologies that were relatively inexpensive. Inaddition, while failure to purchase health insur-ance is sometimes a fair statement of an individ-ual’s evaluation of the benefits, it frequently isnot, Many people who would opt for life-sustainingtreatment may end up without it because theydo not understand the details of their Medicarebenefits and lack the information needed to sup-plement those benefits.

Utilitarianism would provide a very differentanalysis of the use of life-sustaining technologiesduring terminal illness. It would ask what the ben-efits are in comparison to the costs (economic andsocial) and compare the net benefits from the use

of these technologies with the net benefits of otheruses of the resources.

Given that some people consider some uses oflife-sustaining technologies during terminal illnessa net loss, the case for their use will be a difficultone to make. The calculation will have to involvebenefits to the patient as well as benefits to soci-ety. In both cases the benefits are problematic.Surely in some cases the patient benefits, eitherbecause the treatments relieve pain and sufferingor because continued living is desired by the pa-tient and/or others. Even in those cases, however,the benefits are likely to be small in comparisonto the use of the resources in other ways.

In previous paragraphs, a distinction was madebetween persons who are inevitably dying andthose who will die if they are not treated witha life-sustaining technology, but could probablylive if treated. A distinction was also made betweenlife-sustaining technologies that are used once tomeet acute needs and those that must be usedon a continuing basis. For the utilitarian, who isespecially concerned about anticipated benefit,whether the illness is reversible or irreversibleand whether use of the technology is acute orchronic will be very important.

Utilitarian analysis would also require takinginto account the net benefits to society of the useof these technologies as well as alternative usesof the funds. Their use might be supported ongrounds of societal benefits in rare cases wherethe terminally ill elderly person could still makea substantial social contribution, but that is likelyto be uncommon, When compared with the useof the resources in other ways, the societal bene-fits are likely to be small.

The societal benefit that a more sophisticatedutilitarian is likely to identify is the benefit forfamily members who will get positive value outof having a loved one remain alive even a shorttime longer. In some cases, these benefits couldbe significant such as when a relative is travelingfrom out of town and desires to see the dying per-son one last time. A strict utilitarian would insistthat these benefits be included in the calculation.These social benefits, however, are extremely sub-jective and hard to quantify. Moreover, their in-clusion has some unsettling implications. An illelderly person with no relatives or friends would

Ch. 4–Ethical Issues • 155

have no claim based on these benefits. This couldlead to policies of using life-sustaining technologiesfor the terminally ill only in cases where thereare relatives. Extending the argument one stepfurther, their use might be reserved for those caseswhere relatives will be made happy by the dyingperson’s continued existence.

There is one final issue raised by a utilitariancalculation. Different life-sustaining technologiesmay have different subjective impacts on the pop-ulation. In some cases the decision to prohibit theiruse is likely to be very distressing to the sensibili-ties of some of the population. In other cases, thedecision not to use the technology may producelittle distress at all. For example, the level of psy-chological distress at the decision not to providebasic nutrition and hydration is probably muchgreater than that of deciding not to implant anartificial heart in a person who will inevitably diewithout one.

How should a utilitarian respond to these differ-ent subjective feelings on the part of membersof the society? Should they be considered as ben-efits and harms of the treatment decision? It seemsodd to decide whether to provide nasogastric tubefeeding on the basis of whether it makes otherpeople uncomfortable if such feeding is not pro-vided. Decisions about what treatments shouldbe provided are not normally made by determin-ing whether citizens would be upset by their lackof provision. A utilitarian approach to allocatinglife-sustaining technologies will have to determinewhether these subjective benefits and harms ofproviding life-sustaining technologies are relevantor whether a more objective measure such asyears of life added should be used instead.

Maximin theorists and egalitarians would bemuch less concerned about whether the patientis terminally or critically ill and the frequency oftreatment because aggregate benefit is not con-sidered critical. Their major question is whetherterminally ill elderly people constitute a least welloff group or have the greatest needs and, if so,whether the technologies provide any benefit. Ter-minally ill elderly persons might well be consid-ered a least well off group. From the slice-of-timeperspective, they are in very bad shape. Yet fromthe over-a-lifetime perspective they are plausibly

better off than persons who are terminally ill andyoung.

If terminally ill elderly people are viewed as aleast well off group, they have claims to the re-sources that would benefit them. In the casewhere life-sustaining treatment is perceived asbeneficial, maximin and egalitarian theorists whoconclude that the terminally ill elderly are a leastwell off group would support treatment even ifthe benefits were minor.

There is room for dispute among these theoristswhen there is good reason to believe that the treat-ment would not be beneficial. What should hap-pen, for example, when a dying elderly patientinsists that an antibiotic be used for an infectionand the consensus of medical opinion is that theantibiotic is extremely unlikely to overcome theinfection and is very likely to produce undesira-ble side effects? Withholding the antibiotic is likelyto produce distress for the patient, but supplyingit is likely to produce harmful side effects. Maxi-min and egalitarian analysts will need to decidewhether their theories require providing subjec-tive benefit from the patient perspective or onlybenefits measured in some more objective manner.

If terminally ill elderly people are viewed as agroup that is not least well off, a different set ofissues arises. presumably maximin theorists andegalitarians would reach the conclusion that thelife-sustaining technologies should be withheld ongrounds of justice, Consider a dialysis patient whohas a few days to live and those days will be livedin a state of semi-conscious stupor. It maybe tragicto have to withhold dialysis or CPR from such apatient on resource allocation grounds, but if, byhypothesis, others are in greater need, then thatis the decision a maximin theorist or egalitarianwould support.

For life-sustaining technologies that also providecomfort and do so relatively inexpensively, theproblem is more complex if terminally ill elderlypeople are not considered a least well off group.Consider a terminally ill elderly patient whose lifewill be sustained through hydration and naso-gastric tube feeding. What should happen if with-drawing those treatments produces discomfortfor the patient?


The egalitarian or maximin approach is that, ifthese are not least well off patients, they have noclaim to the resource even if the suffering pre-vented is quite great and the cost of the treatmentis quite small. For a terminally ill elderly personwho has previously had a good life, the burdenwould probably have to be severe to outweighthe lifetime of wellbeing. And finally, for anotherterminally ill patient who needs nutritional sup-port for comfort, but who has had a miserableexistence throughout his life, his claim for bene-fit would be much greater, For these reasons, someegalitarians argue that for providing the basicsof comfort care, the slice-of-time perspective mustbe used but decisions pertaining to research, de-velopment, and experimental and high-technologytreatment require an over-a-lifetime perspective.

Consideration of Age as a Criterionin the Allocation of Technological

Resources

Many criteria are relevant to decisions aboutthe allocation of technological resources. First, itis possible to distribute resources according toeach theory of justice or some combinationthereof. The health care delivery system in theUnited States, for instance, is based on an amal-gam of competing points of view about what isfair and equitable. Second, it is possible to distrib-ute resources in a discriminating way in termsof kinds of care (e.g., prevention, diagnosis, treat-ment, and rehabilitation), relative costs, merit,need, or age group. Because this report focuseson the use of life-sustaining technologies andelderly people, a discussion of the ethical impli-cations of the use of age as a criterion for the dis-tribution of resources is particularly relevant.

Age as a Direct and Indirect Measure

It is important to distinguish between two pos-sible ways of using chronological age as a criterionin the allocation of technological resources. Agecan be used in a direct way as the basis for al-locating resources or, more commonly and prob-ably more plausibly, age can be used as an indirectmeasure of some other variable that is thoughtto be the legitimate basis for allocating resources.Age can be an indirect measure of many differ-

ent variables but the most obvious is as a predic-tor of medical benefit.

It has been common to use age as a basis forexcluding patients from some procedures suchas heart transplants. Both very old and very youngpatients were believed to be poor medical risks.Exclusion from dialysis on the basis of age waslargely due to the belief that dialysis would notwork well for older patients. This is of course anempirical argument that needs to be based on evi-dence about whether age really correlates withexpected outcomes. (Note that exclusion from di-alysis based on chronological age is not a practiceunder the current Medicare End Stage Renal Dis-ease Program.)

The medical benefit criterion is attractive be-cause it appears to be objective but in reality, itoften is not. The reasoning is that, if two peopleare candidates for an organ transplant and onewill live more years than the other, then the per-son who will live longer becomes the correct re-cipient of care. That may well be the case, butif it is, it is not without evaluative judgment. Thenotion of medical benefit often includes not onlyyears of survival but the likelihood of complica-tions, the amount of effort necessary to make theprocedure successful, the likelihood of success,and many other factors. The complex combina-tion of these that leads to the conclusion that onepatient can benefit more than another is highlysubjective.

Age can be an indirect measure not only of ex-pected medical benefit, but of a number of otherfactors that are significant in various theories ofjustice. The most obvious is that age is an imper-fect predictor of years of life potentially addedby a life-sustaining intervention. This is true espe-cially for acute interventions such as antibiotics.Other things being equal, a 70-year-old person canbe expected to gain more years of life from anantibiotic for pneumonia than an 80-year-old per-son. If the policy were to allocate to the personwho would get the most life-years from the treat-ment, then age would be an important factor indeciding who gets treatment.

In addition, age is an inadequate measure of theamount of well-being or quality of life one hashad over a lifetime. For those who work with an


over-a-lifetime concept of equality, age is an im-portant predictor of how much well-being hasbeen accumulated, other things being equal. Theproblem, of course, is that other things are notusually equal. Age is a predictor of medical suc-cess, years of life potentially added, or cumulatedwell being, but it is an imperfect predictor. So evenif one accepts age as a legitimate basis for allocat-ing technologies, it does not follow that chrono-logical age can be used as the sole basis for allo-cation,

Arguments in Support of the Use ofAge as a Criterion

At least four ethical arguments can be employedto defend the use of age as a criterion in allocat-ing health care resources. They are: 1) the “agedemands respect” argument; 2) the “age as apredictor of accrued benefit” argument; 3) the“over-a-lifetime well-being” argument; and 4) theargument from contract.

The “Age Demands Respect" Argument.—Itis striking that in traditional societies age was with-out question a legitimate basis for allocating cer-tain resources. The elderly commanded a specialplace as people deserving respect. Some vestigesof this remain in our society. Older persons arestill occasionally given courtesies of title. They stillsometimes expect higher salaries for work simi-lar to that done by a younger person. These prac-tices reflect the conviction that age brings wis-dom. Even in an era of orientation to youth, itis important to realize that using age as a criterionof allocation does not necessarily mean that elderlypeople will be less likely to receive life-sustainingtechnologies. For instance, if there were a choicebetween a 65-year-old and a newborn infant, somepeople might opt for the elderly person on thegrounds that a person whose character is fullydeveloped demands respect over an infant.

The “Age as a Predictor of Accrued Benefit)’Argument.—A second argument for the use ofage as a criterion is more likely to lead to deci-sions limiting access to life-sustaining technologies.This argument uses age as a predictor of the ben-efit that will accrue from intervention. The bene-fit includes the medical factors considered above,but also, especially for one-time interventions, the

years of life added, the useful contribution of theindividual to the society in the future, and otherfactors.

Utilitarians would defend the use of age evenif it is only an imperfect predictor of utility. Theutilitarian, driven to maximize net benefit, wouldconcede that it would be best to use life-sustainingresources in the way that maximizes their bene-fit. They would concede that occasionally olderpeople get great benefit out of life-sustaining tech-nologies and that they might continue to live andcontribute to society if such technologies wereused. They also concede that some younger peo-ple ought to be disqualified if usefulness to thepatient and to society were the criteria. Theymight argue, however, that there would be greatdisutility in setting up complex procedures for de-termining which elderly persons of a particularage were the exceptions that justified special con-sideration. The labor and psychological stressesinvolved might make it such that the most effi-cient way to maximize utility is simply to includeor exclude all persons of a particular age, ignor-ing the fact that some persons would thereby bewrongly classified.

The Argument for Over-a-Lifetime Well-Being.—A third argument for the use of age asa criterion leads to a similar conclusion—limitingaccess to life-sustaining technologies—but on verydifferent grounds. This argument works from themaximin or egalitarian theory of justice and usesthe over-a-lifetime perspective for determiningwho is least well off. However, attempting to as-sess individual variations in lifetime well-being fortwo persons of similar age would be an over-whelmingly complicated task. For policy purposes,so the defenders of this argument would claim,it is better to have a crude, simple basis for deci-sionmaking that will provide at least an approxi-mation of cumulated well-being.

If this position is adopted, the older a personis, the less claim he or she has to resources. Dis-eases of infancy would appear to get very highpriority, then diseases of children, etc. Those whohave lived to old age would perhaps have a claimto the basics of care—safe, simple treatments ofbasic problems, comfort care, and standard medi-cine, but not expensive, high technology or ex-


perimental treatments. Instead of delivering thesecomplex, expensive treatments to the elderly, morework should be done for those who otherwisewill never have the opportunity to see old age.

The Argument From Contract.–A final argu-ment can be offered that may lead to the conclu-sion that age can legitimately be a criterion forallocating health care (15). It draws on certainegalitarian premises, but also incorporates manyof the ideas of those committed to individual lib-erty. This approach struggles with the problemof what constitutes a fair transfer of resourcesfor health care from the younger generation, whohave the ability to pay for care, to the older gen-eration, who have great need for care. It helpsto think of the problem as more of an intraper-sonal problem rather than an interpersonal one.Then the issue becomes one of how much of theresources available to the younger generationwould prudently be saved for health care in oldage.

This view argues that rational persons wouldallocate funds in a manner that does not neces-sarily provide the same health care services at allages during their lives. Individuals in the popula-tion have a range of opportunities that vary fromone age to another. What is normal functioningfor one age is not for another. Prudence woulddictate that persons would allocate their healthcare dollars with an eye to those “age relativizedopportunity ranges” (15). The result would bedifferent patterns of health care for different agegroups, but comparable levels of satisfaction forindividuals. “Justice requires that we allocatehealth care in a manner that assures individualsa fair chance at enjoying the normal opportunityrange, and prudence suggests that it is equallyimportant to protect an individual’s opportunityrange for each stage of life” (15).

The over-a-lifetime perspective seems to implythat the younger a person is, the greater the claimto societal resources. As a practical policy matterthis perspective could create some serious prob-lems–say of choosing between a 33- and a 34-year-old person on the basis of age. Since the pri-mary area of controversy is over the use of ex-pensive, marginally beneficial resources for thosewho have met many of their life goals, it is possi-

ble that some cut off point would be adopted inusing age as a criterion. Here use might be madeof the newer distinctions among subgroups ofelderly people. It is possible that an age criterioncould be used for limiting certain life-sustainingtechnologies only for the older subgroups. It isalso possible that if age criteria are generallyadopted, different age ranges would be adoptedfor different subgroups of elderly people.

Arguments Against the Use ofAge as a Criterion

The arguments favoring the use of age as a cri-terion for allocating health care resources clearlydepend on which theory of justice one adopts.The counterarguments will also follow the pat-terns established in the theories of justice debate.Any argument against the premises of the par-ticular theory of justice will turn out to be a rea-son to oppose the use of age as a criterion. Forexample, anyone who rejects utilitarianism willlikewise reject the utilitarian reasons why agemight be used as a criterion.

Egalitarianism With the Slice-of-Time Per-spective.—Perhaps the most common argumenton both sides of the debate over the use of ageas a criterion in allocating resources is the argu-ment that people should be treated equally andthat that means equal needs should have an equalchance of being met regardless of age. In otherwords, people equally sick at a given point in timehave an equal claim.

Libertarianism.-—An argument against the useof age as a criterion for allocating life-sustainingtechnologies is rooted in the libertarian theoryof distribution. It emphasizes that life-sustainingtechnologies, like other goods and services, shouldbe available to those who want to purchase themor to those who are the recipients of gifts or ex-changes from others who control these services.Under this view, anyone who has the resources(either direct funds or insurance coverage) shouldhave access regardless of age.

Age might enter into individual choices aboutwhether to make use of life-sustaining technol-ogies for instance, some elderly people might rea-son that they would rather have their resources

Ch. 4—Ethical Issues • 159

used for other purposes. Age might also influencethe distribution of resources, thereby determin-ing who has the funds to purchase life-sustainingtechnologies. But age per se would not, accord-ing to the libertarian perspective, determine whoshould have access to any resource including life-sustaining technologies. If some people are un-able to gain access because of lack of resourcesthat is unfortunate, but not unfair.

The Utility Arguments About Using Age asa Criterion. —Utilitarians would argue that sinceage is an indirect indicator of other factors thatcorrelate highly with the amount of benefit pro-duced by life-sustaining technologies-factors suchas predicted medical success, years of life added,and social usefulness of the life saved—it is mostefficient to operate under some general rules thatallocate life-sustaining technologies strictly on thebasis of age.

Other utilitarians might push this reasoning onestep further. They might be concerned about thedisutilities of having some persons in the societyreceive life-sustaining technologies while others—equally sick and equally at risk—do not. Theymight argue that to minimize the social frictioncreated by age cutoffs, everyone, regardless ofage, should have the same access to life-sustainingtechnologies. That rule, even with the inefficien-cies that result from delivering care to elderly per-sons who are likely to gain very little benefit andadd very little to society, may end up producingmore good than trying to institutionalize age-baseddiscrimination.

The Life-is-Sacred Argument.—Still anotherargument against the use of age as a criterion isspecific to life-sustaining technologies, Some peo-ple in certain religious and cultural traditions be-lieve that life in all of its moments is sacred. Theyhold that life should never be shortened by thewithdrawal or withholding of medical technol-ogies under any circumstances. They consistentlyoppose withholding mechanical ventilators, thewriting of DNR orders, and the refusal of any otherlife-sustaining treatments such as nutritional sup-port and antibiotics. Anyone taking this positionwould necessarily oppose the use of age as a cri-terion for determining who should get life-sus-taining technologies.

The Use-of-Sociological Categories Argu-ment.—A final argument against the use of ageas a criterion draws on parallel debates from thecivil rights and women’s rights movements. In theearly phases of these debates, some who woulddefend discrimination on the basis of age or sexdid so using the argument that sociological cate-gories (e.g., race or sex) can be used to predictperformance or success in the workplace andother settings. This generated substantial argu-ment. Members of minority groups took strongexception. They argued that it was unfair to as-sume that they, as individuals, would performpoorly, that they would follow the stereotypes ofa particular sociological group.

The critics of the use of ascribed sociologicalcategories have now largely won the debatesregarding sex and race. These factors now canlegally be used as selection criteria only in veryspecial circumstances where sex or race are in-herently linked to a job.

The implications for the use of age as a selec-tion criterion are apparent. Age, as has been in-dicated, is almost always used as an indirect, im-perfect indicator for some other factor thoughtto be relevant in selection. Furthermore, chrono-logical age is an ascribed category. There is noth-ing anyone can do by hard work to change it any-more than one can (with very special exceptions)change race or sex. If race and sex cannot be usedfor allocation without being unfair, does it not fol-low, so these critics argue, that age likewise can-not be used? This leads to the conclusion that any-one who wants to exclude a particular patient onthe basis of medical benefit, utility calculations,or accumulated well being over a lifetime wouldneed to find direct evidence that these factorsjustify exclusion in the particular patient. Age perse could not be used as a sociological short cutto these factors.

Mixed Arguments Regarding Ageas a Criterion

It is possible to accept the use of age as a cri-terion in certain circumstances and reject it inothers. Some egalitarians are experimenting witha differentiated approach whereby age is legiti-mately used in allocating research and develop-


ment funds, experimental treatments, expensivetreatments, and those with low likelihood of suc-cess while everyone would have equal access onthe basis of need to inexpensive, safe, and effec-tive treatments and to comfort care regardlessof age. Other formulas for mixed policies whereage is sometimes used as a criterion and othertimes is not are likely to emerge in the future.

In tergenera t iona l Respons ib i l i t i e sand Conflicts

Considering the use of age as a criterion for al-locating life-sustaining technologies poses theproblem of intergenerational responsibility andconflict among generations. Thinking of the useof life-sustaining technologies for the terminallyill elderly, many elderly individuals have come tothe conclusion that such uses, even if they aredesired, consume large amounts of personal re-sources that could better be used by one’s chil-dren and grandchildren. On that basis, some in-dividuals wish to forgo the use of life-sustainingtechnologies during life-threatening illness. If in-dividuals make such decisions with their own re-sources, the question arises whether at the pub-lic policy level decisions should be made such thatsociety’s resources are not used excessively forthe older generation.

If many people consider the benefits of usingtheir resources for life-sustaining technologiessmall or even nonexistent, the utilitarian perspec-tive would reasonably support preservation of theresources for future generations. In fact, it is notclear that this preservation of resources wouldbe limited to existing generations. The calculationof benefits and harms could include all future per-sons, whether presently living or not. However,some people have argued that those more thantwo or three generations in the future will be sodifferent from us that it will be virtually impossi-ble to predict their interests and that, therefore,they do not need to be taken into account (18).Others are not as convinced of the radical discon-tinuity between our generation and future ones(9). At least when it comes to the desire of futuregenerations to avoid end-stage kidney disease, in-fections, dehydration, nutritional deficit, and sud-den cardiac or respiratory arrest, it seems rea-

sonable that those in the future are likely to wantthese problems solved.

Similar problems of intergenerational respon-sibility arise for maximin theorists and egalitar-ians. They must determine whether the presentterminally ill elderly are among the worst offgroups, taking into account the existing youngergeneration and possibly future generations as well.In fact, some ethicists and economists have wor-ried a great deal about justice between genera-tions (34). Because no one knows into which gen-eration he will be born, the result will be whatis called the “just savings principle” where thereis “an understanding between generations to carrytheir fair share of the burden of realizing and pre-serving a just society” (34).

The intergenerational responsibility problem iscritical for what is called the prudent saver modelof resource allocation (15). Health coverage forthe elderly is essentially a scheme whereby eacholder generation is the beneficiary of the resourcesof the younger generation. If a plan providing age-relativized opportunities for health care is oncein place, even if elderly persons did not get thesame levels of coverage for life-sustaining tech-nologies, everyone would be treated fairly-at leastif every generation were of the same size and con-tributed equally. The intergenerational transferswould theoretically cancel out with each youn-ger generation contributing to the support of theolder generation.

However, all generations may not be equallyequipped to pay for care of the elderly. Some pay-ing generations may be quite small yet have topay for care for an elderly generation that is large.Other generations may face the opposite demo-graphics. Some generations may face long periodswhere economic conditions make it difficult topay for care for the older generation. From thepoint of view of a distribution system emphasiz-ing equality, adjustments would need to be madeto even out the ratio of burdens to benefits. Inany case, if a plan using age as a criterion for al-locating life-sustaining technologies were suddenlyinstitutionalized, adjustments would have to bemade to deal with intergenerational responsibili-ties during the transition generations and betweengenerations that had unequal abilities to supporthealth care.


One of the key problems of intergenerationalresponsibility is the extent to which children bearresponsibility for their parents in a direct way.Both recognize that the parental generation trans-fers resources to the younger generation duringearly years and that some reciprocal responsibil-ity is borne by children for their parents duringtheir old age. At the same time, both place sub-stantial limits on the obligation of the younger gen-eration for the older, Some thinkers express thisin terms of the obligation of each generation tosave for its immediate descendants (34). Otherslook at it in terms of the way a prudent saverwould allocate a life’s resources (15). In both cases,it is clear that limits exist on what would be trans-ferred from the younger generation to the older.Taking a somewhat different perspective, govern-ment programs to meet the needs of the elderlycan be seen as a way of easing tensions betweengenerations: the younger generation would notbear a responsibility for providing care for theolder, but would nevertheless remain in contactwith them through family ties.

FINDINGS AND

The ethical issues associated with the use of thefive identified life-sustaining technologies on be-half of life-threatened elderly individuals are manyand varied. This chapter is just a sampling of sig-nificant ethical arguments and does not treat allof the relevant ethical issues. Nonetheless, impor-tant findings emerge:

● Categorical distinctions can be helpful inclarifying the specific points at which ethicaldilemmas exist but do not lend themselvesreadily to clear criteria for decisionmaking.

● According to several ethical traditions, therelevant considerations in decisionmaking arethe patient’s wishes and interests, in light ofhis or her condition; societal allocation of re-sources; and the necessity for some societalrules, such as the prohibition of killing.

● Each of the life-sustaining technologies dis-cussed in this assessment raises a hetero-geneous, though not necessarily a unique,combination of ethical issues and questions.

● There is insufficient data from which to drawany conclusions about a possible relationshipbetween suicide among the elderly and theuse of life-sustaining technologies.

Photo credit. Foster Medical Corp.

Intergenerational needs and life-sustaining technology.

IMPLICATIONS●

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Whether or not an individual act of withdraw-ing a life-sustaining technology constitutes sui-cide or assisted death depends directly onhow these terms are defined.

The way in which health care services shouldbe distributed to elderly persons dependsdirectly on the theory (or theories) of justicethat one holds and that can be effectivelytranslated into public policies.

The way in which life-sustaining technologiesshould be distributed to terminally ill elderlypersons will depend in part on whether ageis adopted as an appropriate criterion for al-location and on the availability of a particu-lar technology.

There are important arguments, both pro andcon, for using chronological age as a criterionin the allocation of technological resources.

An important factor in the alternative argu-ments about the use of chronological age inthe allocation of resources is whether oneadopts an “over-a-lifetime” or “slice-of-time”perspective concerning individual quality oflife and human welfare.


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