The English Patient

NRO: Man Wants To Live; National Health Service Has Second Opinion

(Weekly Standard) 
For the last several years American hospitals have been quietly promulgating futile care protocols that empower their ethics committees to authorize doctors to unilaterally refuse wanted care. These futile care policies are beginning to be imposed on unwilling patients and their families.

As is usually the case in such matters, the first victims are on the far margins. Thus, in Houston, Sun Hudson, a 5-month-old infant born with a terminal disability, was taken off a ventilator in March over his mother's objections based on a Texas law that defers to futile care theory. Under the law, once a hospital bioethics committee determines that the treatment should not be rendered, the patient or family has a mere 10 days to transfer the patient's care to another hospital. This can prove difficult in this era of managed care and HMOs, since the affected patients are usually the most expensive to treat. After 10 days without a transfer, the outcome is usually death following the unilateral withdrawal of treatment -- as occurred in Sun Hudson's case.

In another Houston case, one with ironic echoes of Terri Schiavo, the wife of Spiro Nikolouzos wants tube-feeding for her persistently unconscious husband, based on his previously stated desire to live. But unlike Schiavo's, Nikolouzos's personal wishes are not deemed determinative: A hospital ethics committee voted to refuse to continue his tube-supplied food and water and ventilator support. He would have died, but a San Antonio hospital unexpectedly agreed to provide the care. Then its ethics committee also decided to cut off care, but Nikolouzos was transferred to a nursing home. For the moment, Nikolouzos is being allowed to stay alive. But the final decision about the matter isn't his wife's: Under futilitarian Texas law, it belongs to committees of bioethicists and doctors.

In this darkening atmosphere, the Leslie Burke case could not be more important. If Burke loses on appeal, patients in Britain will be stripped of the basic human right to receive food and water through a feeding tube. Such a ruling should send a cold shiver through disabled, elderly, and dying patients everywhere.

Moreover, given the increasing propensity of some Supreme Court justices to look overseas when deciding issues of American law, a Burke loss could plausibly end up reinforcing futile care laws in this country. There will undoubtedly be protracted litigation on this issue in coming years. How Leslie Burke fares may determine whether futile care theory is allowed to metamorphose from ad hoc health care rationing into an explicit -- and expanding -- duty to die.


Wesley J. Smith, a senior fellow at the Discovery Institute and an attorney and consultant for the International Task Force on Euthanasia and Assisted Suicide, is the author, most recently, of "Consumer's Guide to a Brave New World."