Wednesday, December 30, 2015

Chris Dunn, TADA, & Euthanasia: Working through the Issues

As I predicted in my last post, there is plenty of Monday-morning quarterbacking (for lack of a better term) going on in the wake of Mr. Dunn's death (notably by those who are in favor of TADA (the Texas Advance Directives Act) and otherwise uninvolved in helping the victims of this draconian law). A number of people have contacted me about what they are seeing, hearing, and reading and are quite concerned. 

Let me set some things straight and provide information for those who truly want to understand what is at stake here. This post got a bit lengthy, but the implications are serious. If you are to work through this issues, it will take some time and effort on your part. Also feel free to read my other posts on TADA and go over to as there is a vast library of information there to help you along to understanding TADA as well as the bigger ethical and moral considerations related to it and the push to normalize (and mandate) euthanasia. 

I know many are desperate for others to understand TADA, come to a pro-life view of it, and understand the larger end-of-life/denial-of-care issues. Information is the key to everything. You need solid information to make any decision in life. I have always sought to bring information and analysis to the topics I take up on this blog. Many others do the same. As always, some will be convinced by this. Some will take issue with it. Some will begin working through the issues only to arrive at an opinion later. Some will continue to miss the forest for the trees. Then there are some who believe they are "100% pro-life but..." have fallen victim to supporting a form of euthanasia apparently without realizing it. The latter ones are also seemingly unreachable. I am not sure how this happens, but I have seen it happen repeatedly. 

As St. Bernadette said, "My job is to inform, not to convince." (That is a big reason I do not allow comments on this blog.) For my friends who are working hard to spread the pro-life message, keep this in mind. Do not become discouraged. The truth shall prevail. Just keep getting the information out there. And keep praying. 

Let's get started.

Be Wary of Non-Firsthand Sources

In my prior posts about Mr. Dunn, I provided links to plenty of sources from those who had firsthand knowledge of what was going on at the time. The first post about Mr. Dunn was here. The second post about him was here. The Monday-morning quarterbacks do not have firsthand knowledge and were not involved in helping Mr. Dunn, nor have they been involved in helping any victim of TADA to my knowledge. You can also go to Texas Right to Life's various posts about it on their website and pull the documents from the court's website if you wish. I have tried to distill this down as much as possible, but there is vastly more information out there that you can access about Mr. Dunn specifically and about these moral issues in general. In my posts about legislation, I have always encouraged you to read the source documents yourself, rather than the pro/con talking points that various sides will put out. Do your own analysis and homework beyond talking points provided by advocates. I can provide sources and analysis, but ultimately, this is really on you. 

No Due Process under TADA

As a starting point, please note that among the biggest concerns about this law overall is the lack of due process for the patient and his or her family when TADA is invoked, and that TADA imposes a death sentence on a patient against their will and by means that are inhumane or in opposition to their faith. Do not lose sight of that. A patient has no right to have the underlying decision of the doctor or panel reviewed under this law. Once the medical professionals determine that care will be terminated for any reason, there is nothing more to do but to try to find another facility - and fast. Sometimes a judge will grant some additional time. But that is the only recourse to court a victim of TADA has, begging for more time. The underlying decision cannot be challenged. Also, there is total immunity for a facility and doctor as long as they operate under TADA. This is a problematic law. There is simply no question about that. 

The particulars of this case or that case changes absolutely nothing about the lack of due process in this law. We give more due process rights to a convicted murderer than an ill person in the hospital. That is a fact.  

Those supporting TADA will not discuss the denial of due process. In this instance, they focus on Mr. Dunn's alleged condition or prognosis as a justification for what the hospital wanted to do, that is, remove his life-sustaining treatment to hasten his death. They will focus on forcing a doctor to continue treatment against the doctor's conscience. They will make accusations against those trying to help Mr. Dunn. None of these justify this law, but it does avoid the real issues and muddies the water. If the real issue can be avoided, perhaps then, there will not be enough support to overturn the law or substantially reform it. I want you to be informed because I think if one is truly informed and truly pro-life, one cannot support TADA in any intellectually honest way. I will take each pro-TADA argument (whether related specifically to Chris Dunn's case or not) I've seen or heard in turn.

Speculation on Dunn's Condition: One's Prognosis or Diagnosis Is Still No Justification for the Lack of Due Process & Withdrawal of Ordinary, Basic Care

There is undue speculation about Mr. Dunn's alleged condition by those with no firsthand knowledge. As I have written, as it has been reported in the news, as the court documents show, his exact condition is simply unknown. A proper diagnosis was not made. But even if it had been, that does not decide the issue. An individual's diagnosis or prognosis is not a moral justification for the existence of TADA and its denial of due process to patients. An individual's diagnosis or prognosis is not a pro-life justification for the existence of TADA in any way. We do not remove ordinary care for people just because their prognosis may not be great. We continue to provide them with food, nutrition, and air.* That, it would seem to me, would be very basic.**

Next, you should be aware that proponents of what the hospital did to Chris Dunn and who support TADA are looking almost exclusively to the self-serving affidavit that the doctor at the hospital filed as part of the court records. That affidavit cites to no tests and references no exhibits or documentation. Please note that there was no independent medical examination conducted. What is being called a "diagnosis" was done without certain tests being performed. This was addressed in my prior posts about Mr. Dunn. Any doctor who has admitting privileges with the hospital is bound by the determination of the ethics panel. Mr. Dunn's mother requested an IME (independent medical examination), but that determination was not to be made until January 6, 2016, when the court would have heard the motion. The judge refused to hear the case in an expedited manner, although that was requested.

I say the TADA proponents were relying "almost exclusively" on the affidavit because they also look to a comment after a news article as proof-positive of his condition. The commenter claims to be a member of the family and to be speaking for the family. There is no proof of this. Anyone can claim anything in a combox. To my knowledge, none of these family members intervened in the courts. This commenter also does not claim to be Chris' father who is reported to have disagreed with his continued treatment. There are two problems with looking to this comment as proof: 1) as noted, it has not been verified or authenticated; and 2) it is irrelevant what anyone wanted, including various alleged family members, because Chris spoke for himself. We have video evidence of this which TADA proponents ignore. (Moreover, his mother was closest to him, was by his side night and day, and would best know what he wanted.)

And what about when there is a dispute among the family and there are no documents providing for the patient's wishes? 

We err, if we err at all, on the side of life. Always.

In addition, TADA proponents say that Mr. Dunn had "high quality health care" and that the hospital did everything it could to treat him the entire time he was there. This is absurd given that a proper diagnosis was never made, as discussed above, and the fact that the hospital would have withdrawn his life-sustaining care (his ventilator) if a court challenge had not been lodged. 

The Legal Challenge: The Reason Life-Sustaining Care Was Continued
Contrary to what pro-TADA people say, the hospital only agreed to continue providing care after legal proceedings were started and the media got involved. This was not entirely voluntary on the hospital's part. Had the hospital not been challenged, Mr. Dunn's life-sustaining care would have been removed a month ago. The hospital had to be sued to keep them from taking Mr. Dunn off of life-sustaining care. The hospital agreed to a TRO (temporary restraining order) which says that Mr. Dunn had a likelihood of success on the merits of his case in challenging the hospital in that it, the hospital, violated the statute because the hospital did not follow proper procedures for finding a transfer hospital. 

Also, contrary to what is being disseminated by TADA proponents, the hospital did in fact seek custodial guardianship of Mr. Dunn. I covered this in the first blog post.

Note also, as I have written in the past, that the only legal proceedings one is entitled to under the Act is to beg for more time from a court to try to find another facility. In Mr. Dunn's case, a challenge was also made to the constitutionality of TADA itself, something that has never been done before. TADA was challenged under the 14th Amendment of the U.S. Constitution, as being in violation of the due course of law provision of the Texas Constitution, and a Section 1983 (federal statute) claim under color of state law. 

As Texas Right to Life noted in its announcement of Mr. Dunn's death: "Although the hospital refused to treat Chris’s illness based on a discriminatory 'quality of life' judgement, Evelyn and Chris’s family take solace in the fact that Houston Methodist continued life-sustaining treatment and cared for him in his final days." It should not be a legal fight for basic care to be administered. Decisions to deny treatment should not be based on "quality of life" determinations made by medical professionals who do not even bother to consult with the patient or family.

The Invocation of TADA Is Not Limited to Conscientious Objections & Family Disputes

Again, TADA can be invoked whenever a doctor decides that further care, in his opinion, is futile. It is not only when the family disagrees, as TADA proponents are claiming. It can be invoked for basically any reason at all. We often see it invoked when the medical staff decides that there is no "quality of life" for the patient in their opinion, which is what was the case with Mr. Dunn. This is a nebulous, subjective reason that would differ for each person. But it is not for a doctor, nurse, or medical ethics panel to decide. It is not a moral reason to withdraw ordinary care either, certainly not against someone's will with no due process.

Some TADA proponents claim that it is only invoked when a doctor has an objection based on conscience that continuing care is harming the patient. Meanwhile, they also say it is only invoked when the family is in dispute. It cannot "only" be both of these and neither is true. I have been in attendance at a medical ethics panel hearing where an entire family - unanimously - wanted care to continue and had doctors tell that family no. I have never heard a doctor invoke his conscience. I have never heard of such a case where that was the basis for invoking TADA. In fact, the neurologist in the hearing I attended told the family that "Man was not meant to be sedentary this long; if he were an animal in the wild and had been still this long, he would have been eaten." That is the attitude and philosophy of too many that are in the position of making these life and death decisions. It is unfortunate; perhaps a result of the Hippocratic oath not being taken anymore. 

But even assuming a doctor has a conscientious objection, it would be a simple matter to transfer care to another doctor. Doctors' consciences are differently formed. The most obvious example is that some perform abortions and many do not. We can expect the same difference in opinion on these matters. Why must it be either Dr. A treats or death in the event Dr. A's conscience tells him not to treat? That question has never been answered when I've raised it. It has always been ignored. 

So I contend that conscience is not the reason invoked for TADA, and, in my experience even "a" reason. And it wasn't invoked as a reason for the hospital using TADA in Chris Dunn's case. Had it been, it would be a simple matter to address it. 

Rather, it seems to me that a quieter, slightly subtler path to euthanasia is at issue in the matter of TADA and similar laws worldwide.

Money as Justification for Invoking TADA

Now, some will say that money was a concern and such is a justification for the imposition of TADA, in this case and others. The hospital here used concern over resources as a justification. More troubling, some "pro-lifers" will say that anyone with an illness and no insurance should have the good grace to just die and not be a drain on the system. To that I respond simply: that is not a pro-life position. Money should not come before ethics and morality. That should go without saying. I'm pretty sure the Bible has something to say about that. And, there is a social safety net that can kick in, but it does take time to get approved for benefits. 

Further, efforts were being (or would have been) made to transfer Mr. Dunn from the hospital. Thus, in the long term he would not have been a "drain" on their resources. He needed a procedure to help him be transferable. That was not done allegedly because his father objected. Rather, the hospital's focus was withdrawing his vent and administering medication. Recall what his mother said in a news report "'They want to come in and unplug life support [the term the hospital used] and administer a comfort drug, or comfort care,' she says, 'And he will pass within 3 to 4 minutes.'" This is not addressed by the pro-TADA forces. But this is euthanasia. Administering a drug to purposely hasten death cannot logically be called anything else.

Red Herring, Straw Man, Anyone? Arguments Made to Avoid the Real Issues

Now we get to some of the arguments flying around that seek to place blame for the situation not on TADA, but on those seeking to help victims of the law! Baffling, I know. Somehow, the pro-TADA pro-lifers will always eventually say that Texas Right to Life is: the reason we have TADA,  "supported" it, will not work to reform it, and that Texas Right to Life is otherwise the real issue here, not TADA or its supporters. Somehow this will be used as a justification for what was done to Chris Dunn by those who think the law is just fine. Yes, it's illogical. Yes, it's a sort of red herring so as to avoid the real uncomfortable issues surrounding TADA (such as the denial of due process) and the manner in which TADA came to be. But it is where the arguments eventually all go and then TADA proponents can avoid addressing the real issues. Thus, I must set that straight as well, as I was once also ill-informed about the history of TADA.

One argument I saw just today - as a justification for what happened to Chris Dunn and the short amount of time one has under the statute to find another facility - is that other pro-life organizations have tried to get more time, but Texas Right to Life has refused more time because they want treatment until transfer or nothing at all. Texas Right to Life does want treatment until transfer, as do I. But the rest of this is false. 

I do not and cannot speak for Texas Right to Life, but I feel pretty certain it would accept longer periods of time if such was part of a bill that was truly an incremental improvement. Why do I believe this? There are at least two pieces of such evidence: 1) the actions taken by Texas Right to Life when TADA was first enacted; and 2) that Texas Right to Life has accepted other incremental improvements to TADA. 

We have 10 days to transfer now only because Texas Right to Life fought for that morsel when the first version of this bill was signed into law. That is the most they could get. Read more here. Not only does this indicate that but for the efforts of Texas Right to Life, there would be NO grace period, but that Texas Right to Life would have accepted a longer grace period short of treatment until transfer had that been on the table. It most assuredly was not.

I will also say that while I support Texas Right to Life on TADA, I am critical of George Bush's involvement in this, whereas it is not. In my opinion, he forced this to be done and in so doing, gave the medical establishment the greater bargaining power which was to the detriment of patient's rights and a truly pro-life law. This may have been an incremental improvement over what was going on prior to this law's enactment, but that is only an indictment of the practice in hospitals at that time, not proof that this was a huge pro-life victory. 

You can also see by reading the words of Elizabeth Graham that Texas Right to Life did not fully support TADA. The existing situation was actually worse with no grace period, but the medical establishment would not budge on anything but a nominal grace period. Having seen this law in action, having seen the lobbyists do what they do, and proponents testify as they testify, I wholeheartedly believe this account of what happened during negotiations. But even if Texas Right to Life had supported TADA then (and there is no evidence that it did), how would that in any way diminish the efforts made to help families victimized by TADA now or efforts to repeal or make the law more pro-life? There is a reason that red herrings and straw men arguments are logical fallacies. 

It is also untrue that but for Texas Right to Life the grace period would be longer, or that other organizations are trying to increase it but are stymied by Texas Right to Life. In 2013 when SB 303 was proposed and pushed by a certain pro-life organization, the Texas Catholic Conference of Bishops, and the Texas Medical Association, among others, it would have increased the grace period to 14 days. For a brief period of time, a substitute version increased it to 21 days (still not enough time to get a transfer completed, but better than 10), but the final substitute version took it back to 10 days. The rest of the bill was a due process disaster, as the current law is. It would not have been worth four more days, or even 11 more days, only to have the law be worse in implementation than it is now. No due process gains would have been experienced under that bill. It lost support and died in committee. Those that came to testify against it were legion, vastly outnumbering proponents of the bill, and were not merely lobbyists which was the case for most supporters of the bill. Many had been personally affected by the current law which would have been made worse by that proposal. Many traveled great distances to testify well into the wee hours of the morning. 

The minor reform passed in 2015, HB 3074, avoided addressing many of the big problems with the law and end result has loopholes in it. (You can read my take on HB 3074 which became law here.) It also kept the 10 day grace period, (but at least it does not start until the medical records the patient or his family need to try to transfer are provided). Again, note that the 10 days was not touched, including by the groups proposing the bill. Note also that it was accepted by all groups ultimately, after the language was changed a good bit by the suggestion of Texas Right to Life. This also undermines the allegation that Texas Right to Life is somehow singularly responsible for the 10 day grace period and that but for Texas Right to Life's absurd (according to the pro-TADA crowd) insistence that there be treatment until transfer, Chris Dunn might have had more time. The evidence is no more supportive of this claim than any of the others.

Pro-TADA people will claim that it is almost never invoked. Only rarely, they'll say. This is not true. It is invoked very often. I know of four cases in addition to Mr. Dunn's that are ongoing right now. And this is not an unusual situation. Sometimes TADA is invoked when a patient actually can (and does) recover. Here is just one example. Let me be clear, I post this for the purpose of showing how often TADA is invoked when the circumstances do not warrant it. This patient was declared hopeless, futile, and yet he fully recovered. I post this to emphasize that arrangements were already being made to donate this man's organs even as the family was begging for his life. Sometimes people need more time to heal with proper treatment. Sometimes the body is not going to heal, but the person needs to be treated with the utmost care and undertaking actions to hasten the death against the person's will - removing a vent, withdrawing nutrition and hydration - is not moral, ethical, and should not be legal.

"Natural" Death vs. Hastened Death

Finally, I see some accuse Texas Right to Life, myself, and others, of advocating that treatment go on forever even when the treatment is ineffective. We have been accused of not accepting that people do die and that some treatments do not work. This is another logical fallacy implemented. (Also beware of the appeal to authority fallacy. Several have MDs or PhDs and rely on that more than than facts  or logic.) Call it a straw man argument or a red herring (both definitions fit), but do not call it anything but a fallacy. I am unaware of anyone that has ever advocated that. 

There is a huge difference, however, between someone dying of a terminal disease even as they have artificially administered air, nutrition, and/or hydration as they die versus the patient who dies, not of the underlying illness, but of suffocation, starvation, and/or dehydration, because those treatments have been withdrawn.

The term "natural" death is often used. When I use it, I mean that nothing was done to hasten the person's death and that ordinary, basic care was continued. For example, in the case of one actually diagnosed with terminal cancer, perhaps a feeding tube would be used because they can no longer take in food by mouth, but chemotherapy (extraordinary care) is stopped because it is not helping anymore. The cancer is taking over the person's body and killing them. But they are not dying from starvation or dehydration. 

I think that some, including some proponents of TADA, argue in a way that indicates that they believe that when one is ill, any intervention that allows the person to live a bit longer - including air and artificially administered nutrition and hydration - is unwarranted and is, in terminology I have seen them use repeatedly "prolonging death." Thus, it seems when they say "natural death" they mean a death where both ordinary and extraordinary care is withdrawn (except high doses of pain medication) so as not to "prolong death." (I have written about the problem with this terminology before and how it is definitely the language of euthanasia advocacy.) 

If an otherwise ill person is denied food, water, and/or air, that denial of life's basic necessities will often kill the person faster than the underlying illness. Thus, this was not a natural death, but a hastened death through the denial of ordinary care. Hastening a death through administering medication to do so is also euthanasia and wrong. It is not allowed under Texas law at this time. So-called physician assisted suicide is allowed in some states and in some countries and is being expanded to where it is not so voluntary. Abyssum covers this a great deal. 


We should in no way - especially under the guise of being pro-life - support a law that allows a doctor and hospital to decide to withdraw ordinary or basic care against a patient's or his family's wishes and certainly not without due process of law(!) and certainly not based on someone else's view of what that person's "quality of life" will or will not be.

We can NEVER support any sort of euthanasia (passive, active, doctor-assisted, etc.) in law or theory and call ourselves consistently or 100% pro-life.

I hope this helps you work through not only Mr. Dunn's situation, but the tremendous problems with TADA as well as end-of-life and denial-of-care issues in general. These are not issues that are going away. I have read that efforts are being made to model a federal law after Texas' law. Please work through this in a detailed, independent, and meaningful way. It has far-reaching implications. 

Thanks for reading!

*I am not a theologian, but I have had long conversations with those who are well-versed on these matters and I have done my own reading. It is my understanding that ventilators may be a bit of a gray area in Catholic bioethics. As one studies the issue more, one sees that the use of ventilators indicates that the process of breathing is partially working. Ventilators move air. But the body has to be functioning for respiration (the exchange of oxygen and carbon dioxide) to occur. When nutrition and hydration are artificially administered, the body still must be able to digest and assimilate the nutrients. It seems to me that ventilators might be considered ordinary care as artificially administered nutrition and hydration are. See, e.g., this post. Note also that Stephen Hawking has had breathing support for 30 years, including a ventilator. At one point in the 1980s (!), he was so ill the hospital wanted to turn off his ventilator to hasten his death. It would be hard to argue that he has had anything less than a full life (even if that were an appropriate metric to determine whether care is continued or not). He would not argue otherwise given that he said in that article:  "For the last three years I have been on full-time ventilation but this has not prevented me from leading a full and active life." As I have said, if we are to err at all, we err on the side of life.

**Now, there are some that will talk about when artificially administered nutrition and hydration is actually more harmful than not for the patient. That is a rare occurrence. That was not an issue here. Proponents of TADA will claim this is the only reason why such care would be removed, that it happens more often than we realize, etc. They are wrong. In those rare instances when the body cannot assimilate nutrition and hydration, then, yes, I would not advocate for that. However, when the removal of such life-sustaining measures is just to hasten death for a patient the "experts" have determined is futile or the quality of life is not as the medical professional believes it should be to keep one alive, it is not moral or ethical, and should not be legal.