Questions Answered

• What are the conditions for informed consent regarding rejection of medical treatment?
• Can you explain the limitations of law? Do unjust laws oblige us to obedience?

Question: What are the conditions for informed consent regarding rejection of medical treatment?

Answer: The problem of health care decisions and the process of informed consent to a given medical procedure can be daunting to the ordinary person. According to Fr. Nicanor Austriaco, “Informed consent is the name given to the process that allows a patient (or if he is incapacitated, his surrogate decision maker or proxy) to become an informed participant in all decision making regarding his health care” (Biomedicine and Beatitude: An Introduction to Catholic Bioethics, CUA Press, 2011, 123). He states that there are three requirements for informed consent: the patient must be told everything necessary for him to make a good decision, he must be able to understand it, and he must freely consent to it.  No one should exercise any kind of constraint on him to decide one way or another, especially his physician.

Patients who have questions about puzzling and potentially immoral decisions should seek the advice of a prudent priest. The priest is morally obliged to give only that advice which would be morally correct. This must correspond to the teaching of the Magisterium and is not necessarily limited to what the medically good procedure would be. What is good medicine is not always good morals. This is the case because medicine is an art and not a science, and as such, it does not touch the issue of the whole man.

Today, it is customary for patients, who fear that they may not have the capacity to make the decision for themselves, to sign an advance health care directive. They may be oral, in which case, Fr. Austriaco holds, there must be witnesses; or they may be written. There are two kinds of written directives: living wills and medical care directives. The first kind is a legal document which covers specific procedures; the second kind is broader. Though some states require these, some Catholic moralists have problems with them. The most serious problem is that certain treatments are rejected before a given illness is diagnosed and seem to constrain the physician as to what procedures can be employed. It is very difficult for persons to know in advance how they would react to a possible illness and treatment until they actually experience it.

The third type of directive is the durable power of attorney, in which the prospective patient designates someone who knows his mind and ethical preferences to decide on a kind of treatment in case he is incapacitated. This is either someone chosen by the patient or someone determined by state law, for example, the spouse or parents. Fr. Austriaco maintains that these are of two types: the substituted judgment in which the designated person decides, based on what he knows, what the moral standards of the patient are, and the best interests standard when the designated person does not know what the patient wants and so consults prudent people (Bioethics, 130).  These directives are better than living wills because they are more flexible. The best case scenario is for the patient to have both his wishes in writing and the durable power of attorney. The physician need not honor these if he has moral or religious objections to them, but he must inform the patient in advance of his objections.

Informed consent is not needed in urgent cases reflecting the common good like vaccinations, or medical emergencies, or if the patient waives his rights. The Ethical and Religious Directives of the USCCB say: “The free and informed consent of the person or the person’s surrogate is required for medical treatments and procedures, except in an emergency situation when consent cannot be obtained and there is no indication that the patient would refuse consent to the treatment” (Fifth edition, no. 26).

There are situations in which well-meaning relatives and physicians purposely withhold information from the patient concerning a medical problem because it might cause the patient undue distress. This is not a good idea. It often fails, and the patient finds out anyway and is caused undue anxiety from not being informed. If the problem is life threatening, it robs the patient of his ability to prepare for a good death. Truth must be the basis for good medicine—just as it is for everything else in morals.

_______

Question: Can you explain the limitations of law? Do unjust laws oblige us to obedience?

Answer: The rule of law is essential to the survival of society. St. Thomas defines law in a classic definition used by many ecclesiastical and secular sources as: “An ordinance of reason made by the competent authority for the common good and promulgated.”

There has been a long debate as to whether the proper emphasis in a law is on the will or the intellect. The voluntarist tradition has tended to put the weight of the obligation of the law on the power of the will of the legislator. This makes law a competition between two wills, and often leads to the idea that “might makes right.” According to this way of looking at law, the will of the legislator makes something right or wrong. Of course, even the part of the Catholic tradition that has defended this idea would never go so far as to say that one can, and should, obey an unjust law. The problem is that that this theory does not easily support this idea, and can lead to the will of the sovereign being supreme and untouchable.

The Thomistic tradition, on the other hand, has always supported the idea that the key word in the definition of law is not the word “ordinance,” which reflects the fact that obedience to the law is applied in the will. Instead, the emphasis in this tradition has placed the accent on the word “reason.” St. Thomas would call this the “formal cause” in scholastic language. This means that what makes a law a law is the fact that it is objectively true, and is a fitting expression of an action which accords with the human nature God has created. Since this is the case, the nature of a law is not judged according to the power of the person making it, but according to the fact that such a law accords with the perfection of the powers of the human soul. Human power cannot determine this; it can only apply it.

In the last two centuries, a theory of law has grown up which emphasizes only the power of the person making the law and does not recognize an objective human nature as such. Kant, for instance, taught that law was an expression of human need which created it. In its content, it should insure the greatest good for the greatest number, but it was human need which created justice, just as human need determined the nature of man. Law became completely utilitarian as a result. Since there was no objective definition to which needs were being fulfilled, because each person determined these for himself, law was whatever was useful. For Kant, the human mind measured nature, and nature measured God. God measured nothing.

Catholicism has never held this. Human laws must be based on the natural law. This means that if a law does not express the perfection of the objective powers of the human soul, it is not a law, but a usurpation of law. It does not matter how powerful the authority is which makes it.

There would indeed be limitations to human law. They are the good which the society is to implement. The state, for example, cannot own the shop. The state can make laws which guide the shop, but it cannot supplant the shop, which is an extension of the family. Laws are also limited by the truth. If a given law contradicts a right of man based on the prior determination of his soul, then it does not oblige. Also, the civil law cannot make laws with regard to religion unless this is under the rubric of preserving the peace of the nation. Determining who the head of the Church is, for instance, would exceed the competence of a civil authority, as would the nature of the episcopacy or the priesthood.