3 Can the Dutch law, or any given law, be a model for Korea and China? The imperative of care
In this light, I will now investigate the Dutch law, as a potential model for other countries, with a special interest in its applicability in different socio-economic and cultural settings. The law defines three major criterias which combined constitute the terms under which euthanasia may be performed. The patient has to (1) experience irremediable and unbearable suffering, (2) be aware of all other medical options and (3) have sought a second professional opinion. The request has to be made voluntarily, persistently and independently while the patient is of sound mind. I shall take the third criterion for granted here, that is professional counter-check. From an ethical perspective, I have serious doubts about the first and the second criterion, namely that a certain degree of pain must be diagnoised and that the patient has to "be aware of all other medical options".
As to pain. At the first glance, this appears to be quite a humane and practical criterion. However, closer empirical inspection reveals that it is highly ambiguous. How do we know about agony, and who decides whether our understanding and related action is accurate? What is the nature and cause of pain? Physicians in palliative medicine report many situations they describe as pain in reality being a "cry for help". We ought to bear in mind that acute pain usually functions as a natural indicator for problems, and it is our task to study this language deligently. Whereas acute pain may suggest that a curative medical approach is indicated, chronical pain can not be treated in the same sense, but calls for more comprehensive approaches to pain management, which may include sufficient quantities of narcotic analgesics, especially for dying patients.42 To base an action on a mistaken understanding of the cause of pain can easily result in torture, especially if the patient is entrapped in a weak body. Pain may indicate the feeling of meaninglessness, abandonment, unresolved problems, and so on, amounting to a complex socio-psychological syndrom, expressed through psycho-somatic symptoms. Unfortunately, pain research is fairly underdeveloped. One of the leading experts and pioneers in pain research and pain therapy in Germany, Michael Zenz (of Bochum university) emphasizes that only a small proportion among the patients who express that they want to die, or demand to have treatment withdrawn, actually wish to end their life because of unbearable pain but because of a reluctant application of morphin. In fact, cases have been reported which suggest that lack of medical attention or even malpractice, such as inaccurate administration of drugs, or improper resuscitation, might motivate some of these pleas. Patients may desire to escape a situation they perceive as a trap with no other way out, by seeking death.
As to the "options". I believe that, first, "all medical options", as conventionally understood in a sense of curative medicine, are not necessarily sufficient to help the patient, (even in medical terms). Even if we accept the curative paradigm, it remains difficult in many cases to define the accurate line of medical futility. Also, the range of medical options is not exhausted where painkillers and technical devices fail to have an effect. The art of medicine invites doctors together with the nursing team to become interdisciplinarily creative, changing perspectives in order to invent adaptable measures for individual situations43. Physicians should be encouraged and allowed to resort to the sources of their professional and humane imagination, seeking new ways in healing and communicating hope to the patient. The old remedy of the "human touch" could be strengthened again in clinical practice, permitting the members of the medical team to share their genuine affection with the suffering patient and being present as companions in bedside care. Both, therapy and nursing deserve it that more time is spent with and on the patient. The fact that real clinical conditions frequently rule out such a humane medicine does not defeat my argument but points at flaws in the present system. These flaws should be mended, given that we really wish to achieve the best possible medical system. And they probably could be healed in the spirit of Palliative care, that is the special care of a person whose disease no longer responds to treatment aimed at a cure. Palliative Care has the goal to provide as much freedom as possible from suffering, by giving physical, emotional, mental and spiritual comfort. It tries to relieve from suffering and to promote the best quality of life for patient and family. As it does not hasten or delay death it does not play a biased role in euthanasia. It focusses on a human diversiry of symptoms, ranging from pain over depression, fear, loneliness, and the search for meaningfulnesss or God.
Second, I would like to respond to the Dutch law that in situations of severe chronic pain the curative medical approach, even if based on the most humane purposes, is not the best way to treat a pain patient. For chronic pain patients, palliative medicine in its original sense suggests itself as probably the more ethical approach. Interestingly, here a Confucian assessment meets in substance with the state of the art in "Western" medicine44. There are many practical ways in which to provide meaningfulness for some chronical pain patient and restore a sense of belonging, helping him to restore his strength to endure, assisted by reasonable medications. Some of them include direct interpersonal activities, which reinstall the sense of appreciation of the patient as a human being. We could be more creative and invent new methods. Why, for instance, are we keeping elderly people apart from children? For example, many old people may simply miss the easy mind of a child, meanwhile many children grow up without a sense of time and history. Who would not prefer to live in a society that brings its lonesome children and abandoned seniors naturally together for mutual benefit, if this is feasible? Palliative care and hospice work ought to be connected with social counselling and social work of many kinds, which might open new opportunities for the patient to connect to life. Such a policy will with no doubt enrich society.
I do not recommend that the Dutch law should be a model for legislation, neither in Korea nor in China. At least, it does not cater for the interests and the needs of the patients first. It is clearly in the enlightened interest of doctors who do not wish to work in a "fuzzy area of law". In their work, they depend upon a legally viable definition of allowed and not allowed practices of "euthanasia". This is by all means a legitimate interest on the physicians' side. However, not withstanding this legitimate claim for legal safety, the focus of ethics includes the legitimate interests of all parties involved, with a special alertness to the less privileged. Such a law could be practical at best as small part of a greater project to reform society, with an emphasis on healing the country, the people and the diseases. As it has been discussed in the conference, it seems that about six lawsuits had been filed against doctors who had withdrawn life-sustaining measures according to §43 of the Taiwanese Health Care Law. It is certainly a great success of patient rights movement and civil society that the respective legal text has been revised and that the revision is now in force. However, why was this initiative necessary in the first place? As Tsai Fu-tsang (Taipei University's Medical College) pointed out, the revision makes no difference as regards the real medical situation and its professional and ethical evaluation. No doctor had been found guilty of any crime or offence under the conditions of the earlier law who would now go unpunished. Even under the old law, relatives could have asked for condemnation of a resusciation practice that becomes unethical when it is more torture than assistance. Therefor, the revision of the law does not really help to change the real situation. But nevertheless, it might have its most significant outcome in reducing the incidence of litigations. It seems to cater more for an interest to keep a low public profile, according to the motto "no legal affair is a good affair". This bias is not recommended under the conditions of a democratic society where, in fact, the public's attention provides a key to legitimacy and competent independent judges guarantee fairness. What would be wrong if there were even more lawsuits, given that medical practice is continuously performed on the basis of best standards? Many countries have learned to live well with legal checks, as a means to control and remind physicians of their peculiar social and individual responsibilities. On the other hand, if citizens do not trust in their laws and courts but feel that "a lawsuit is a sentence, no matter the verdict", this indicates a serious problem on the side of political culture and legitimacy of constitutional organs. The focus on positive legal action under these conditions can be misleading if the fundament for a state of law, namely a basic social consensus45, is not well established. It would appear just as taking the third step earlier than the first. We can not provide a meaningful death without caring for the meaningfulness in life. Good laws and sound policies can only serve their purpose as functions of humane culture.
Care in Confucian terms means both, to care about and for one's self and others. This circumscribes a strategy of humaneness. The meaning of the "quality of life" is essentially a personal issue, depending on the individual's stage of moral development. Therefore, it can in principle not be assessed by general criteria. However, we may refer to procedures that allow for a tentative estimation of the individuals' needs and his real will, such as through advance directives, other positive statements of the patient, or accounts of the presumed will, a profile of the character drawn by close relatives and friends. As a lesson from our extremely paternalistic past, in Germany, it has become legal practice to appeal to the real will of the patient, be it outspoken or assumed, whenever a case seems to include a contradictory conflict. In other words, the final decision after a long and thorough process of consultation and deliberation is not made under the paternalistic principle to "act in the (assumed) best interest" of the patient, but to "act in his (most probable) real interest". If we can, we always have to ask the patient what he wants. (In the special case of emergency situations, if no time for confirmation of the will is given and no further evidence can be provided, the chief task is to restore the patient's capacities for competent decision making.) A Confucian might explain that this is a sound policy, because, in the most extreme situations, physical life is less important than moral self-determination.
4 Concluding remarks
It is evident that biomedical progress urges us to revise traditional ways to assess dying. Our powers to interfere and thereby to do good or wrong to people have increased dramatically. Our related capacities to understand and make sense of the relevant ethical implications must be developed in order to let us cope with this situation. Owing to the diversity of individual characteristics of dying situations we can hardly hope to find clear ethical guidance, but we need to strengthen decision making capabilities. A related initial step would consist in realizing and establishing a better understanding of the meaning of life in the light of dignified death and dying. Such an understanding might be achieved best by understanding the individuals who we refer to as subjects, clients, patients. We ought to rediscover them as human fellows whose process of dying reflects our own moral maturity.
Ethics education in medicine is an obvious key to facilitate this understanding and the resulting humane competence. It is also self understood that this education can not be designed according to the traditional models for training and teaching, but must be suitable to stimulate creativity and individual decision making ability, giving back part of the absolute authority of teachers to the students. Case orientation, early access to clinical practice and role plays should be part of such an education method as well as plain language and clear ethical concepts.
However, education of this kind should be framed by education of society in general. The related sciences and policy makers need at first to build a solid empirical basis for these activities, seeking more and more accurate first hand information about the real interests of terminal patients. Much more work should be dedicated to understanding of the real situations of patients who request withdrawal of treatment or ask for active euthanasia, as a basis for building an informed policy and practice. To know that these people belong to a Chinese (or any other) community in some sense does not help us. We need to understand what they really believe and want individually, even if the results confirm that they adhere to "community" based morals. In fact, such an orientation needs to be confirmed and analyzed empirically before any normative judgement may take place.
A recent example from mainland China might be an encouraging signal for some change in the right spirit, even under unfavourable socio-economic conditions. The Dalian municipal has launched a research project in February 2001, investigating the background of requests for withdrawal of treatment for terminal patients receiving home care. This pilot project is conducted at the First Dalian Medical University Hospital, directed by the university's president Jiang Chao, and involves 100 patients. A team of 3 doctors, 4 nurses and a driver, supplemented by post-doctoral medical and psychology students visit the patients in their homes and inquire into their living conditions, their family situation and their real wishes. Care and consultation is offered as well as mediation of social workers' services. The study is funded by a grant from Hong Kong businessman Li Jiazheng, amounting to annually 1 million RMB over 5 years. It is hoped that this will not only provide more adequate understanding of the nature of the really needed help, but also serve as a starting point for many similar projects all over China. It can be forseen that social and medical programmes will benefit substantially and that in particular the Hospice movement will get momentum in China. On the basis of rich empirical data covering s representative part of Chinese society it will be much easier for Chinese ethicists to arrive at a sound advice for how to deal with the issue of euthansia. The advice could in part be as simple and obvious as the world wide evidence suggests: we ought to become more reasonable in administering morphine derivatives so as to relieve some of the chronical patients' pain, and we ought to promote palliative medicine as a new model for a humane medicine.
In more general terms, we should take serious the concern about bio-reductionist attitudes and reduction of political engagement for the sphere of mere legal aspects of biomedicine as well as worry about the increasing degree of socio-economic pressure on all levels of medicine and health care. It seems that developed countries, such as the home of modern health care and social insurance systems itself, first designed by Duke von Bismarck in Germany, take a sad lead in offering humane reasoning on the altar of economic rationality. When reduced budgets and rising expenses define the real practical range of medical work, it is time for us to clarify the priorities in clinical decision making. Under conditions of economic pressure and social fragmentation, especially when given a lack of the most basic moral orientation in a society, any debate about euthanasia is untimely. Instead, the economic pressures ought to be relieved first, because individuals' health and a healthy society constitute a major resource for stability and prosperity. Accordingly, attempts to develope a civil consensus, expressed by a culture of law in a civil society ought to be fostered. A Confucian view recommends that we put less emphasize on economics, technology and mere law, but focus more on the humane foundation and mission of medicine. Economy, technology and law are instrumental for ethics, nothing more or less but servants for humanity. The related rationalities must not overcome the principal reason of humaneness and righteousness.
In practical situations of medicine, the ultimately guiding question from an ethical standpoint ought to be: Which kind of society do we really wish to live in and what kind of life do we really wish to live? If it is feasible "to heal sometimes - to relieve often - to comfort always", as palliative medicine in a nutshell promises, then we ought to act accordingly. A Confucian perspective might help us to assess an ethical medicine in light of the social mission of medicine. We would try our best to become more humane in acknowledging dying as part of life, and good care as the essence of medicine always.
1 This paper has been presented first at the International Bioethics Conference on The Ethics of Letting Die, May 8-9, 2001, Chungshan Medical College, Taichung, Taiwan. I am grateful for substantial comments by Paul Unschuld and Nie Jingbao.
2 Cf. The New York Times, " Dutch Senate Debates Euthanasia Bill", April 10, 2001.
3 Cf. two articles in the New England Journal of Medicine 335 (1996). Van der Maas et.al, "Euthanasia, physician assisted suicide and other medical practices involving the end of life in the Netherlands", pp. 1699-1705, and Van der Wal et.al., "Evaluation of the notification procedure for physician assisted death in the Netherlands", pp. 1706-1711.
4 I gratefully acknowledge Michael Zenz for reminding me of the comprehensively "covering" nature of palliative medicine. Cf. Buchanan ML and Tolle SW, "Pain Relief for Dying Persons: Dealing with Physicians' Fears and Concerns", Journal for Clinical Ethics 6 (1995): 53-61; Michael Zenz and Franz-Josef Ilhardt, Ethik in der Schmerztherapie, Bochum (Zentrum für Medizinische Ethik, Medizinethische Materialien Vol.128) November 2000.
5 In practice, the borderline between refusing treatment, withdrawing treatment and active euthanasia are technical. From an ethical view, focusing on the ethical maxims of an agent, this distinction is blurred, making this generally a case of concern for active euthanasia.
6 Slightly abridged from his report, "Medical Ethics in China: Status Quo and Main Issues", in Ole Doering (ed.) Chinese Scientists and Responsibility: Ethical issues of Human Genetics in Chinese and International Contexts. Proceedings of the 'First International and Interdisciplinary Symposium on Aspects of Medical Ethics in China: Initiating the Debate', Hamburg, April 9-12, 1998, (Mitteilungen des Instituts für Asienkunde Nr. 314), Hamburg, 1999: 24-32: 25.
7 Cf. Zhai Xiaomei, Anlesi: Lunli he Gainian Wenti (Euthanasia: Ethical and Conceptual Issues), Ph.D. thesis, Beijing 1998.
8Qiu, a.a.o.: 26. It is interesting that the distinction between legalizing and decriminalizing has become a topic in Germany's way to deal with matters of potentially high moral controversy.
9Cf. Zhang Daqing, " Medicine as Virtuous Conduct: Assessing the Tradition of Chinese Medical Ethics", in Ole Döring and Chen Renbiao (ed.), Advances in Chinese Medical Ethics. Chinese and International Perspectives, Hamburg (Mitteilungen des Instituts für Asienkunde) 2001 (in print)
10Cf. Shen Mingxian, "Euthanasia and Chinese Traditional Culture", in Ole Döring and Chen Renbiao (ed.), Advances in Chinese Medical Ethics. Chinese and International Perspectives, Hamburg (Mitteilungen des Instituts für Asienkunde) 2001 (in print)
11 Li Lu, "Breakaway from the Medical Misunderstanding of Approaching Life's End ", in Bioethics in Asia; Norio Fujiki and Darryl R. J. Macer (ed.), Christchurch (Eubios Ethics Institute) 1998: 126-129
12 c.f. Mengzi 2 A 6, “He who claims not to be able (to understand the fundamentals of morality) is mutilating himself.“
13 This passage reflects upon the discussion of my presentation. I am grateful for many helpful comments and clarifying statements from the audience.
14 In a letter to the author, Nie comments, "The most important intellectual reasons may be the anti-traditionalist cultural orientation in 20th- century China. Moreover, social and political crisiticism cannot be achieved freely, but must be under the disguise of cutlural criticism. In other words, traditions, Confucianism included, are actually a scapegoat."
15I am glad to be able to refer to the fundamental groundwork accomplished by Heiner Roetz in his outstanding and exhaustive philosophical, philological and hermeneutic reconstruction of pre-Qin Confucianism as meaningful sources for contemporary ethical discourse; c.f. The Confucian Ethics of the Axial Age, New York (SUNY Press) 1993; "The 'Dignity within Oneself': Chinese Tradition and Human Rights", in: Karl-Heinz Pohl, Hg., Chinese Thought in a Global Context. A Dialogue Between Chinese and Western Philosophical Approaches, Leiden: Brill, 1999: 236-262. Lee Minghui has offered a basic philosophical reconstruction of early Confucian ethics as compatible with fundamental liberalism and enlightenment; cf. his Rujia yu Kangde, Taipei (Lianjing) 1990. Lee Shui-chuen has submitted probably the most mature and comprehensive approach to Bioethics through Confucian concepts, cf. his Rujia shenming lunlixue, Taipei: Legion Press, 1999. Daniel Fu-tsang Tsai has proposed a Confucian analysis from the perspective of medical practice, cf. his “How Should Doctors Approach Patients - A Confucian Reflection on Personhood”, in the Journal of Medical Ethics, 2001; 27: 44-50. Nie Jingbao has contributed to the new hermeneutic Confucian reflection of Bioethics problems in his two studies, "'Human drugs' in Chinese medicine and the Confucian view: an interpretative study", in Fan Ruiping (ed.) Confucian Bioethics, London (Kluwer Academic Publishers) 1999: 167-206 and “Abortion in Confucianism: A Conservative View,” Proceedings of Second International Conference of Bioethics, Chuangli, Taiwan, 2000. pp. 130-155. Although these groundworks must be appreciated as parts of an ongoing research project, I believe that their preliminary findings strongly support my own hermeneutic deliberations.
16 In his interesting essay, "Confucian virtues and personal health", Ni Peimin argues that "the whole Confucian project is intrinsically one of health care", emphasizing that "health care is not a matter of biology alone; it is (...) a never ending journey toward the highest perfection of a human being". In Fan Ruiping (ed.) Confucian Bioethics, London (Kluwer Academic Publishers) 1999: 27-44: 28 and 42.
17 Cf. Lee Shui-chuen, " A Confucian Assessment of 'Personhood'", in Ole Döring and Chen Renbiao (ed.), Advances in Chinese Medical Ethics. Chinese and International Perspectives, Hamburg (Mitteilungen des Instituts für Asienkunde) 2001 (in print). I would like to point out that this concept of the Dao represents Confucianism as well as early Daoist philosophy, as represented by Zhuang Zi. The topic of Dao as the "circle of life and death" according to this school nevertheless has a different emphasis on the oneness which tends to disregard the particular interests of the living part (in the absence of a "real and total death"), promoting a tranquil and joyful attitude towards dying as a mere stage in continuous transformation.
18 Mengzi 6 A 10.
19 Mengzi 3 A 5.
20 Mengzi 4 B 23.
21 Cf. eg. Zhang Daqing and Cheng Zhifan, "Medicine is a Humane Art: The Basic Principles of Professional Ethics in Chinese Medicine", Hastings Center Report, Special issue, July-August 2000: 8-12. The fact that many scholars refer to some kind of "Confucian" inspiration in recent medical ethics related literature does not suggest that it is actually legitimate to address the quoted physicians as models for a Confucian Bioethics. Although I strongly argue in favour of a reconstruction of Confucian ethics in terms of contemporary medical ethics issues, I acknowledge that such a work should be based on solid philologic and hermeneutic research. The very meaning of "Confucianism" is part of a related research programme.
22 Mengzi 7 A 2.
23 Lunyu 6.21.
24 Mengzi 7 A 2.
25 Mengzi 1 A 3.
26 Mengzi 7 A 15.
27 For example, cf. Fan Ruiping, „Self-Determination vs. Family-Determination: Two Incommensurable Ptrinciples of Autonomy“, Bioethics Vol.11 No.3&4, 1997: 309-322
28 Mengzi 4 A 27.
29 Mengzi 4 A 11.
30 Lunyu 2.7, 2.8.
31 Lunyu 1.3, 17.15.
32 Mengzi 1 A 7.12.
33 Lunyu 16.4.
34 Lunyu 13.9.
35 Mengzi 6 B 3.
36 Even Xiao can be rationalized as based on the experience of parental care, which demands returning care to them when they need it, or to "give back through three years of grief" for the deceased. Cf. Lunyu 17.19.
37 Cf. Ole Döring, " Moral Development and Education in Medical Ethics. An Attempt at a Confucian Aspiration", in: Ole Döring and Chen Renbiao (ed.), Advances in Chinese Medical Ethics. Chinese and International Perspectives, Hamburg (Mitteilungen des Instituts für Asienkunde) 2001 (in print).
38 This incidence is narrated in Xiaojing 10.
39 Mengzi 4 A 26.
40 Mengzi 4 A 17.
41 An interesting interpretation of Chinese traditional thinking about suicide and euthanasia is offered by Lo Ping-Cheung in his essay „Confucian Views on Suicide and their Implications for Euthanasia“, in Fan Ruiping (ed.) Confucian Bioethics, London (Kluwer Academic Publishers) 1999. Also cf. George Khushf's comment in the same volume.
42 Cf. Zenz and Ilhardt (2000): 9f.
43 Cf. Zenz and Ilhard (2000): 10.
44 In refering to the state of the art I do not wish to suggest that the advanced countries of Europe and America have already drawn the practical conclusions from sound theory and evidence on all relevant clinical and social levels. For example, c.f. Michael Zenz et.al., "Severe Undertreatment of Cancer Pain: a three year Survey of the German situation", Journal for Pain Symptom Management, 10 (1995): 187-91.
45 Germany has, to some extent, been successful in defining this consensus in terms of a "constitutional patriotism", as different from nationalism or chauvinism.