Recent eLetters

Dear Editor,

Recent attacks on the medical criteria for diagnosing death have, in our opinion, reached such a degree of sophistry that the debate is in danger of becoming irrelevant to doctors and patients alike1 2 .Doctors have a job to do, to diagnose the dead.

Dying is a process, decay effects different functions and cells of the body at different rates. Doctors must decide at what moment along this process there is permanence and death can be appropriately declared. This is not a 'legal fiction', this is a doctor's solemn duty.

Here we feel obliged to correct a common misunderstanding. The majority of deaths following cardiac arrest, as diagnosed in every hospital worldwide, rest on the doctor's intention not to attempt cardiopulmonary resuscitation and not a literal definition of 'irreversibility', that is a circulation that cannot be restored using any currently available technology. Unless one is prepared to undertake cardiac massage, direct cardiac defibrillation and perhaps extra-corporeal membrane oxygenation prior to diagnosing anyone in hospital as dead, no one can know that the heart has irreversibly ceased. DeVita's work suggests that if a literal definition of irreversible loss of function is used to define death, then brain death does not occur for one hour after cerebral circulatory arrest, whilst for the heart it would be many hours 3 . This would lead to a death watch in which there would be no place for a stethoscope and modern medicine would be turned back 150 years, to a time when only the satisfaction of rigor mortis was accepted, yet still not publically trusted. Likewise the concept that doctors should not declare death in patients confirmed deceased using neurological criteria, because a decapitated body has living cells and the potential for function, has no relevance to our duty to make a timely diagnosis of death whilst avoiding any diagnostic errors.

What these attacks amount to is a request that death can only be diagnosed if there is total cellular dis-integration, a process likely to take many months, and will require hospitals for the dead as used in bygone centuries. If it is the need for more organs that motivates this continual undermining of diagnostic criteria for death, we would urge philosophers to directly attack the donor rule, and leave the dead rule to doctors.

References

1. Miller FG, Truog RD. Decapitation and the definition of death. J Med Ethics. 2010;36:632-634.

2. Shah SK, Truog RD, Miller FG. Death and legal fictions. J Med Ethics. 2011.

3. DeVita MA. The death watch: certifying death using cardiac criteria. Prog Transplant. 2001;11:58-66.

Conflict of Interest:

None declared

The article by Waltho (1) raises some issues of concern for Jewish patients, and physicians, outside of Israel Canada is a country with a significant mix of races and religions. To the observant Jewish population, the issue of "informed refusal" presents a conflict between what is required of physicians and what religion dictates. My own experience when working in a hospital functioning on strictly observant rules did not raise the same issues with more secularly directed Jewish patients. Our courts (Canada) have reaffirmed repeatedly a patient's right to refuse treatment even when it is clear treatment is necessary to preserve the life or health of the patient. (2, 3, 4) Justice Robins of the Ontario Court of Appeal explained: "The right to determine what shall, or shall not, be done with one's own body, and to be free from non- consensual medical treatment, is a right deeply rooted in our common law. This right underlines the doctrine of informed consent. With very limited exceptions, every person's body is considered inviolate, and, accordingly, every competent adult has the right to be free from unwanted medical treatment. The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self- determination. The doctrine of informed consent ensures the freedom of individuals to make choices about their medical care. It is the patient, not the physician, who ultimately must decide if treatment -- any treatment -- is to be administered." Basically, this is reflected in the Canadian Charter of Rights and Freedoms that underlies all law, with very few and very specific exceptions. The Supreme Court of Canada has made the same decision and makes it clear that when patients decide against recommended treatment, particularly urgent or medically necessary treatment, discussions about their decision must be conducted with some sensitivity. While recognizing an individual's right to refuse, physicians must at the same time explain the consequences of the refusal without creating a perception of coercion in seeking consent. Although the law in Canada is quite clear on the matter, the conflicts that exist for both Jewish physicians and their observant patients can be extremely trying and there appears to be little available in the way of direction that addresses these issues.

1 Waltho S. Rethinking paternalism: an exploration of responses to the Israel Patient's Rights Act 1. 1996 J Med Ethics. 2011; 37.

2. Nancy B. v. Hotel-Dieu de Quebec (1992), 86 D.L.R. (4th) 385 (Que. S.C.)

3. Malette v. Shulman (1990), 72 O.R. (2d) 417 (C.A.)).

4. Starson v. Swayze, 2003 SCC 32

Conflict of Interest:

None declared

A safe ground to take for facebook activity of residents and fellows

Bing H Tang, MD, MPH

Research & Ethics

Danville, California, U S

I read with interest Facebook activity of residents and fellows and its impact on the doctor-patient relationship (J Med Ethics jme.2010.036293Published Online First: 15 December 2010 doi:10.1136/jme).

Basically, facebook is a way of making oneself known to another, and,in so doing, asking the other person to make him/herself known to you.

The "primitive" yet VERY personal Facebook method, one known to me since my boyhood in the Far East, is to offer my Calling card on which basic data about myself are contained, to the person I have just met. As I say my name, out of my pocket comes the little card on which my "face" is revealed: name, address, title, and all degrees I earned, telephone, telegram, and what not. The "primitive" is, as well, the very personal way. It appears to be inconvenient as following: on meeting a stranger, one does not have one's calling card handy and give it to the "stranger".

Facebook, today has expanded globally. It's the mechanized system of exchanging your personality and whatever else you want to add to the world. Once you are on Facebook, millions of people, potentially, can find you. The big question for someone, would be, "How much do you want to reveal.

Facebook, in fact, is YOU-dominated platform, therefore you decide what privacy you want to keep, as well, what you want to reveal.

If one doest not use it as a device to find friends, as well, not for playing games do not etc either, nor can I see any risk of using it.

If one uses the New high technique and also very cautious to keep reminding oneself to refrain from what not to be used, it will be little risk involved.

As to the question of whether or not Facebook is "ethical", I think "ethical" in this connection has little or nothing to do with Facebook.

If doctors only want to discuss a case, all personal information of this particular patient could be codified that nobody over the web can identify the patient's identity, and still achieve the objective of discussing a case. Doctors should know the risk over the web, and try to wear the patient's shoes on going facebook talking about his patient. Not do onto others that you don't like people do onto you, or even one more step further, do onto others that you wish people did onto you, as Christ taught.

References

[1] Wilson S, Johnston J, More trouble with Facebook. Privacy Law Bulletin 2010;7.2:25-8.

[2] Michael Zimmer blog, Facebook's Zuckerberg: "Having two identities for yourself is an example of a lack of integrity" 14 May 2010 http://michaelzimmer.org/2010/05/14/facebooks-zuckerberg-having-two- identities-for-yourself-is-an-example-of-a-lack-of-integrity.

[3] Facebook activity of residents and fellows and its impact on the doctor-patient relationship Ghassan Moubarak, Aur?lie Guiot, Ygal Benhamou, Alexandra Benhamou, Sarah Hariri J Med Ethics jme.2010.036293Published Online First: 15 December 2010 doi:10.1136/jme.2010.036293

Conflict of Interest:

None declared

In their critique of our paper "Legal physician-assisted dying in Oregon and the Netherlands: evidence concerning the impact on patients in "vulnerable" groups," I.G. Finlay and R. George claim to challenge our underlying assumptions and methodology with "another perspective on Oregon's data." In our view, however, they miss the point of our paper and address a quite different issue. While we welcome their attempt to further explore issues about assisted dying, we do not believe they have in any way undercut our argument that where assisted dying is already legal (at the time of our study, Oregon and the Netherlands), there is no current evidence for the claim that legalized physician-assisted suicide or euthanasia will have disproportionate impact on patients in vulnerable groups.

Our paper was developed in response to the "slippery slope" concern widely prevalent in statements and position papers from variety of groups, including many professional medical groups. We cited among others this sample:

"Both society in general and the medical profession in particular have important duties to safeguard the value of human life. This duty applies especially to the most vulnerable members of society--the sick, the elderly, the poor, ethnic minorities, and other vulnerable persons. In the long run, such persons might come to be further discounted by society, or even to view themselves as unproductive and burdensome, and on that basis, "appropriate" candidates for assistance with suicide." "...the ramifications [of legalization] are too disturbing for the...value our society places on life, especially on the lives of disabled, incompetent, and vulnerable persons." American College of Physicians--American Society of Internal Medicine (ACP -ASIM), 2001

Drawing on this and many similar statements in the medical, policy, and bioethics literatures, we examined 10 groups variously identified here and in inequality studies generally as "vulnerable." We explicitly refrained from assuming that people in these groups are actually vulnerable and that people not in these groups are not, and we did not assert that issues about vulnerability could not be examined in other ways --as Finlay and George have undertaken to do. We did seek, however, to examine objectively this particularly widespread form of slippery-slope argument because it has played such a major role in the public, political, and professional debates over physician assistance in dying. We insisted that the careful examination of objective evidence should be of concern to those who oppose physician-assisted dying on moral grounds, to those who support aid-in-dying but are uneasy about the possible social consequences of legalization, to proponents of legalization who assume that the risks for vulnerable patients are heightened if these practices remain underground, and to those who favor legalization but fear that vulnerable patients will be denied a privilege reserved for better situated patients and that health care inequities already affecting vulnerable persons will be exacerbated--that is, to both those who do and those who do not find physician-assisted dying objectionable on moral grounds.

We certainly do not claim that people not in the 10 groups identified as vulnerable might not seek physician assistance in dying for the "wrong" reasons--disturbed emotional states, reactions to loss, personality types, and other factors Finlay and George mention. That is not the focus of our paper. Finlay and George provide as it were a supplemental look at the same issue, but with an entirely different focus. However, our paper does indirectly address some of their concerns. Not only do we examine rates of assisted dying in depression (rates of depression are elevated in people seeking assistance in dying, but may not be elevated in people receiving it), but in conditions like physical disability, stigmatized illnesses such as AIDS, chronic nonterminal illness, and psychiatric illness (all conditions in which physician-assisted suicide and euthanasia may be legal in the Netherlands). All may all be associated with distressed emotional states and loss, but, with the exception of AIDS (largely prior, it can be noted, to the development of highly active antiretroviral therapy), in none of these conditions are rates of assisted dying elevated. We did not assume that the categories we examined identified were the only respects in which individuals could be "vulnerable" and we did not attempt to distinguish between relevant and, as Finlay and George charge, "irrelevant" vulnerable groups; rather, we examined the categories we did because they had played such a prominent role in public and professional argumentation over the risks of legalization.

Although our paper examined data from both Oregon and the Netherlands, Finlay and George address only that of Oregon. Thus they do not recognize the relevance of data about chronic (nonterminal) illness or disability, conditions in which a patient may legally seek the assistance of a physician in dying in the Netherlands but not in Oregon. They misread our analysis of data about old age, claiming that we omit deaths among Oregonians aged between 65 and 84 years; this data does indeed not appear in the discursive text but is clearly displayed in Table 1, and supports our claim that there is no evidence of heightened risk of assistance in dying among the elderly (construed as age 65 and over). We do not see a "systematic error" here, though the fact that very elderly people die less frequently of cancer (the most frequent condition associated with assisted dying in both Oregon and the Netherlands, approximately 80%) may explain the some of the finding.

Finlay and George also refer to a "four-fold rise" in physician assistance in dying in Oregon between the initial years of the Death With Dignity Act and the present. Patients ingesting lethal medications represented 6/10,000 deaths in Oregon in 1998, the first full year of legalization, 9/10,000 deaths in Oregon in both 1999 and 2000, and 21/10,000 deaths in Oregon in 2010. Some increase subsequent to the first year of legalization represents persons who received prescriptions from the previous year dying in the subsequent year. It is a misleading representation of the trend to call this a four-fold increase.

Most of Finlay and George's comments are not really about our data and analyses; rather, they mainly concern the limitations of our study. A careful reading of our study will show that most of these concerns have already been addressed, and that we have been particularly careful to refrain from conjectural claims about the motivations of people who died with physician assistance, claims that are, in contrast, central to the concerns of Finlay and George. We welcome further attempts to examine what really happens where physician assistance in dying is legal, both concerning individuals who are members of groups identified in the literature as vulnerable and those who are not, including people with high SES and other indicators of comparative privilege. However, we do not welcome the seemingly ideologically biased assumption evident in the Finlay and George critique that requesting or receiving such assistance is itself a symptom of vulnerability; such an assumption would make it impossible to examine the facts of the matter in either Oregon or the Netherlands in any objective way.

Conflict of Interest:

None declared

David Shaw rejects my suggestion that, although it is not necessarily unethical, it might well be unprofessional for a doctor to perform euthanasia on or to have sex with his or her patients.[1,2] However, his argument is unconvincing.

According to him: '...if something is really contrary to a professional's role, it is almost certain to be unethical in some respect. McLachlan provides the example of doctors having sex with their patients as an example of unprofessional but not unethical behaviour. It is somewhat surprising that he simply states this as fact: many would argue that this behaviour is both unprofessional and unethical. It is unethical because it could be an abuse of power, there could be coercion involved, it might affect how the patient is treated with harmful consequences, and there might even be a therapeutic misconception (no pun intended).'[1] It would be unethical on the part of the patient or the doctor if a particular act of sex between a patient and a doctor were an abuse of power by the patient or the doctor. It does not follow that all acts of sex between patients and doctors are unethical. It is beside the point to say that if a doctor has sex with his or her patient this could be an abuse of power and coercion could be involved since any sexual relationship between adult human beings could be an abuse of power and could involve coercion. Considerations of this sort - even if they are not conclusive and not, even, particularly plausible - are relevant to the argument that it should be always considered unprofessional for a doctor to have sex with his or her patients even if they. However, they have no bearing on the implausible assertion that it is necessarily unethical for doctors to have sex with their patients. Not all sexual relationships between doctors and their patients involve an abuse of power. Not all sexual relationships between doctors and their patients are coercive. It is not only needlessly patronising to patients and misplaced paternalism to say that, because it is an abuse of the doctor's power and/or it is coercive, patients cannot give valid consent to sexual relations with their own doctors, it is false. If we were not able to give valid, authorising consent to have sexual intercourse with our doctors, we would scarcely be able to give our consent to what might be considered more intimate or hazardous procedures such as, say, rectal examinations and heart transplants. If we cannot be considered to be competent adults in the one instance, we should not be so considered in the others. Any relationship between a doctor and a patient could be an abuse of power and could be coercive whether or not it is a sexual one. Furthermore, it is a mistake to assume that it is the doctor rather than the patient who will be coercive or an abuser of power in a sexual relationship between a doctor and a patient that happens to be unethical. There are various sorts of powers that people can have. We cannot always say in any particular relationship who has more power. Not all sorts of power are commensurate. For instance, President Kennedy had different sorts of powers than Lee Harvey Oswald had. He who might have been thought the less powerful of the two men killed the other one wrongfully and abusively. In situations of unequal power where this is abuse and exploitation, it is not always the weaker party who exploits or abuses the other. It is the powers that we are able and prepared to exercise rather than the powers that could have been exercised in particular relationships that matter. In some respects and in some contexts, doctors have more to fear from their patients than patients have to fear from their doctors. For instance, the fear that a patient might make an accusation against his doctor -whether or not it is true - might well be more compelling for the doctor and more firmly grounded than any fear the patient would have about an accusation from his doctor against him or her. This might be a good reason for thinking that it is unprofessional even if not unethical for doctors to have sex with their patients. In various contexts, it is what might be thought of as weaker people who are more dangerous and threatening. If, say, you wander about New York or London late at night, it is not, for instance, Bill Gates, David Cameron, Prince Philip or David Beckham but some poor, puny teenager who is more likely to try to mug you. Shaw continues: 'McLachlan also states that "the BMA would be a laughing stock if it were thought to permit doctors to kill their own patients but not to have sex with them". This is a hasty comment: in fact, killing one's patient at their request could be both in the patient's best medical interests and a professional duty; having sex with one's patient would be neither, in addition to being unethical for the aforementioned reasons.'[1] Killing one's patient could be seen as being in the best medical interests of patients and could be seen to be a professional duty of a doctor. I don't see it that way but other people could and do. I don't deny this. However, to have sex with a patient might also be considered to be in the medical interests of a patient. My point is that, even if it is in medical interest of a patient and even if it is not considered to be unethical, there might still be objections to it on the grounds of professional propriety. Shaw is clearly unaware that, in the past, some doctors did think that it was appropriate in the case of what were considered the hysterical illness of some spinster patients to bring them to orgasm by digital manipulation. Indeed, doctors invented the vibrator, not as a sex toy, but as a medical instrument to facilitate such medical treatment. It is possible to imagine that some patients might want to have sex and want to have sex with their doctors. They might think that this was a medical need. They might be right. In my view, it is no more appropriate that one should be given active euthanasia on the NHS than that one should be given sex or otherwise brought to an orgasm. Whether or not it is considered as medical treatment is irrelevant, in my view. Not all that a person who is also a patient needs should be considered as medical treatment. Not all that could be considered as medical treatment should be provided by doctors, especially not by doctors who work for the NHS and are paid from the public purse. Rape is wrong no matter what other people think about the action. However, unprofessional conduct can cease to be such when the attitude of others towards it changes. For instance, sexual relations, particularly homosexual relations between combat troops, particularly when those involved are of different ranks is hardly inherently unethical yet, in many armies, this would be considered as unprofessional conduct. One would imagine that, in the future, attitudes towards such actions might change significantly.

Similarly, the nature of appropriate professional conduct might be different in different context and in different social systems. What is appropriate conduct for a doctor in a system of private healthcare might differ in some respects from what is appropriate for a doctor within a publicly provided and financed healthcare system.

Shaw's contention that '...if something is really contrary to a professional's role, it is almost certain to be unethical in some respect' should be treated with caution.[1]

1. Shaw D. A defence of a new perspective on euthanasia. J Med Ethics 2011;37:123-5, 124. 2 McLachlan HV. Assisted suicide and the killing of people? Maybe. Physician-assisted suicide and the killing of patients? No: the rejection of Shaw's new perspective on euthanasia. J Med Ethics 2010;36:306-9.

Conflict of Interest:

None declared