HONORING DEATH: Philosopher and Clinician, Jeremy R.
Simon
Jeremy Rosenbaum Simon, MD, PhD
(USA), is an emergency physician, medical ethicist and philosopher of
medicine on the faculty of Columbia University. He is a member of
several local and national ethics committees and chair of the
International Philosophy of Medicine Roundtable, the leading
organization of philosophers of
medicine.
The question at hand is Honoring Death: Does the public’s interest in
social distancing outweigh the patient’s right not to die alone and the
family’s right to be with their dying relative? The issues raised by the
situation Dr. Kritzinger describes in this regard need to be ethically
analyzed on two levels. The first is the question of the nature of the
rights under consideration, and the second is the question of the nature
of rights in general at this time of public health crisis.
The dilemma as posed presupposes two different but related rights. That
of the patient not to die alone, bereft of their family, and that of the
family members not to be separated from their dying loved one. Of course
it would be difficult to honor one of these rights without honoring the
other, but with two rights in play, there are more arguments to be made
in favor of respecting them.
One might think that right of the dying person is the more powerful
right here. The dying are often given special consideration due to their
status, even those being executed (last meal, cigarette, blindfold). The
right to have comfort in dying, which ordinarily is not problematic,
would seem to be something patients are entitled to. And certainly on
some level they are. Being alone in a stressful time is frightening, and
patients have a right not to be subject to undue fear. But if we focus
on the right to visitors particularly of the dying , and not all
patients, this right may seem to be somewhat reduced, especially in the
current situation. First, patients can only be considered dying for a
brief part of their hospitalization, when it becomes clear that they
cannot be kept alive much longer, or when life support is being removed.
Thus, any harm that may be caused by violating this right is mitigated
by the relatively short time during which the right is being violated
and the patients are exposed to unnecessary stress. Second, and this is
relevant particularly to COVID, a large percentage of the patients who
die are intubated and sedated at that point. Even to the extent that
patients in general may have a right not to die alone, it is not clear
that this right extents to unconscious patients. This is not to say that
it does not. It may be an intrinsic matter of human dignity not to be
abandoned at the time of death. But, even given that, hospitalized
patients are not abandoned; they are not even without those who care for
them. They are just without those with whom they have long-term bonds of
affection. Note that the second point is of limited applicability, since
many patients also die without being intubated. In those cases, the
other arguments presented here will have to suffice.
What then of the family? They are conscious, and the harm done to them
could potentially reverberate for years to come. And familial rights are
certainly recognized in medical ethics, at least when it comes to
surrogate decision-making. Perhaps it is their right that is stronger.
But, whether or not it is stronger, it cannot be absolute. For, there is
a very simple case where a hospital may, and must, keep out such a
visitor—at the patient’s request. Likewise, if the family member has
behaved badly, even to the staff, during prior visits. This is of course
not what is happening here. However, it does show that the family’s
right to visit is defeasible.
These, then, are the rights in question. What I have shown thus far is
not that they do not exist here, just that they may not be as solid as
they at first appear. The next question is, how should we approach
rights during the time of a pandemic. Traditionally, ethical analyses
can be broken into two types, consequentialist, or outcomes based, and
deontological, or rules based. A consequentialist, or utilitarian,
decides whether an action is right based on the outcome that
results—did it create more good in the world than the alternative? A
rules based ethicist sees whether an action follows certain ethical
rules—thou shall and thou shalt not—without looking to see what the
impact is of following the rules in a given case. But that dichotomy is
a bit misplaced here. Even a deontologist, a rules-based ethicist, may
have rules that take into account outside impacts. So to have a
specifically rules-based argument that visits to the dying is a right at
this time, one would have to have a rule that implied that not only was
it a right, but that it was a more or less absolute, first-tier right
that no amount of bad consequences could override. I have trouble seeing
this in general, and certainly in light of the arguments made earlier.
That was a bit quick I am afraid. The main point was just to argue that
we need to analyze the ethics of our dilemma, as to whether the public’s
interest in social distancing outweighs the patient’s right not to die
alone and the family’s right to be with their dying relative, based on
the real world consequences of taking one side or the other, and not
based on abstract, timeless rules. Therefore, we are left considering
the consequences of allowing or not allowing visits to dying patients
during the COVID pandemic.
Ultimately, answering this question requires objective data, or at least
assumptions about such data, about the risk to visitors of acquiring
COVID (and then also perhaps spreading it to others) and the risk of
their already having COVID and spreading it within the hospital. This is
information that I do not have. It also depends on the organization of
the intensive care units and the potential for disruption visitors could
create. I know that at our hospital at Columbia, operating rooms have
been converted to intensive care units, so that in addition to the MICU,
or medical intensive care unit, and SICU, or surgical intensive care
unit, etc., we also now have an new beast called the ORICU, operating
room intensive care unit. These do not necessarily have the same space
and barriers that normal intensive care units have, and may have less
room for extra people in them.
How could one use this information to make decisions here? Certainly, if
wearing a simple mask is enough to prevent getting or spreading
infection, then the danger to the visitor, the other patients, and to
society at large is not a real issue, and is not a reason to forbid
visitors. Of course, we do not know this to be the case, and so this
danger must be considered. Given the degree of disruption to everything
else that our assessment of the risk from COVID is causing, it is not
unreasonable (though not necessary) to take a conservative approach here
too. Note that the risk to the visitor is only part of the issue here,
and so we cannot simply leave it up to them to take on the risk or not.
But even if the risk of virus transmission is small, the disruption to
the intensive care units, and especially the makeshift ones, could be
real. And I think that there is an argument to be made that if some
intensive care units cannot have visitors, none should. At the very
least having different policies for different units would lead to
arbitrary distinctions between patients, and at the worst it could lead
to placing patients in preferred intensive care units for nonmedical VIP
(“Very Important Person”) reasons, which is certainly unjust.
Thus, I think that while keeping visitors away from dying patients is
certainly a bad thing, it is not an absolute wrong, and may indeed be
justified at times, perhaps even now. We broadly restrict rights during
public health emergencies, and the right to visits is not stronger than
others, and is perhaps weaker than some of the even more fundamental
rights, such as engaging in religious worship and commerce, that life
under COVID has, of necessity, interfered with. Nonetheless, if it is
possible to have a safe, nuanced policy, with small numbers of visitors
to those patients who would benefit from it, this is certainly
desirable.
Any philosophical analysis of difficult human issues is in danger of
losing the human, even when the analysis is rooted in the real world.
Without pulling back from the somewhat difficult conclusions I have
presented, I would like to pair them with a quotation from Rodrigo
Marquez. Marquez is the son of the novelist Gabriel Garcia Marquez,
author of Love in the Time of Cholera , and the quotations comes
from a column he wrote as a “letter” to his late father, describing
the pandemic to him. He says: “It’s not just death that frightens us,
but the circumstances. A final exit without goodbyes, attended by
strangers dressed as extraterrestrials, machines beeping heartlessly,
surrounded by others in similar situations, but far from our people”
(59).