Canada's Catholic Health Ethics Guide.

The second edition of the Health Ethics Guide, published by the Catholic Health Association of Canada in September 2000, was written, as was the first edition in 1991, to give guidance on moral decision-making in regard to the many problems which health care-givers encounter during the course of their professional activities. This Guide received the nihil obstat of the Permanent Council of the Canadian Conference of Catholic Bishops in March, 2000.

The scope of this book has been broadened because of numerous changes in science and technology, a reduction in the number of hospital beds, and the shift of focus of health care from hospitals to the community. Other changes that affect health care include the increase in the relative number of seniors as compared with the young, the increasingly diverse makeup of society, and the effect of economic pressure on the health care budget.

The book is well organized. Its chapters are short, lucid, informative, and in general, of excellent quality. The sections on the communal nature of care, the dignity of the human person, human reproduction, care of the dying person, research on human subjects, and the added section on governance and administration are, by and large, well written.

It is disappointing however, to have to report that this text is still marred by serious problems, some old and some new. There are four major areas of concern.

Formation of conscience

The Guide describes Catholic moral tradition as the result of the work of the Holy Spirit, Who is said to cause the following individuals, and groups of people, to become sources of Catholic moral truth: the Christian community, moral theologians, ethicists, pastoral care workers, the local bishop, church teachings, especially sacred scripture. Physicians, nurses and pharmacists are not mentioned. The fact is, however, that apart from the teaching Magisterium acting under the inspiration of the Holy Spirit, there is no other source of Catholic moral truth.

Others may contribute their personal opinions, insights and judgments but, in the last analysis, only the Magisterium can teach the truths of the faith and of morality with authority. What others can contribute is factual scientific information and their personal experience. The Guide's description of Catholic moral tradition brings to mind the opinion of some who hold that the teaching of the Church should reflect the over-all opinion and judgment of Catholics as a whole; that the moral law should emanate from a polling booth! This is a false understanding of the 'sensus fidei '. The latter is correctly explained in Lumen Gentium 14:

"In order to preserve the Church in the purity of the faith, handed on by the apostles, Christ who is the Truth willed to confer on her a share in his own infallibility. By a 'supernatural sense of the faith', the People of God, under the guidance of the Church's living Magisterium, unfailingly adheres to the faith."

Note that the Magisterium guides the faithful, not the reverse.

The Guide also states that if a moral problem is debated by moral theologians, it is not "clear or unanimous, and that its obligations are not to be imposed by the Church, and need not be obeyed, unless they are consistent with the wishes of the person receiving care."

Catholics are told that they should act from "an informed conscience." Nowhere is it stated that the conscience should be rightly informed in accordance with, and conformed to, and that Catholics should act in obedience to, the natural and divine law.

The Canadian bishops have taught that "a believer has the absolute obligation of conforming conduct first and foremost to what the Church teaches" (Statement on the Formation of Conscience, Dec. 1, 1973).

Vatican II taught that "married people should realize that in their behaviour they may not simply follow their own fancy, but must be ruled by conscience - and conscience ought to be conformed to the law of God in the light of the teaching authority of the Church, which is the authentic interpreter of Divine Law" (Church in the Modern World, No. 50).

The Sacred Congregation for the Doctrine of the Faith stated on March 13, 1975, that the Church is not unaware of the dissent by theologians against the teaching of the Church in regard to direct contraceptive sterilization. The Congregation denies, however, that doctrinal significance can be attributed to this dissent as such, so as to constitute a "technological source" which the faithful might invoke and thereby abandon the authentic Magisterium, and follow opinions of private theologians which dissent from it.

Our conscience does not enable us autonomously to adopt our own moral principles. The 'Professio Fidei states that Catholics must "firmly accept and hold each and everything definitively proposed by the Church, regarding Faith and morals." This includes all teachings belonging to the dogmatic and moral area which are necessary for faithfully keeping and expounding the deposit of Faith, even if they have not been proposed by the Magisterium of the Church as formally revealed.

Cardinal Ratzinger, in his commentary on the Concluding Formula of the Professio Fidei by the Congregation for the Doctrine of the Faith, has stated that "whoever denies those truths would be in a position of rejecting a truth of Catholic doctrine (cf. Motu Proprio-Ad tuendam fidem, John Paul II), and would therefore no longer be in full communion with the Catholic Church."

Does not the notion of informed conscience promulgated in this Guide, in which Church teaching is only one source of moral truth, bear some resemblance to that of those whom John Paul II described in Veritatis Splendor, n.36 as

"...disregarding the dependence of human reason on Divine Wisdom and the need, given the present state of fallen nature, for Divine Revelation as an effective means for knowing moral truths, even of the natural order."

Pope John Paul stated that those persons "have actually posited a complete sovereignty of reason in the domain of moral norms ... such moral norms would constitute boundaries for a merely 'human morality'."

Family Planning 

It may be that when the Guide recommends that "health associations and organizations promote the various methods of regulation of conception that respect a woman's natural fertility cycles," it intended to refer only to the natural family planning methods, such as the Creighton model, the Billings Ovulation method, or the Serena method. The Guide may not have intended to refer to the use of the condom, spermicides, or chemical contraceptive pills. If so, the Guide should have made its intention explicit. The words used are, in my view, ambiguous, and may be misinterpreted to include the use of contraceptives.

The Guide also recommends that

"Educators and professionals in relevant programs are to be well informed on natural family planning methods. They are to provide instruction honestly and objectively about these and other methods so that couples may make free and informed decisions for responsible parenthood."

Since all the methods of natural family planning (NFP) in use today have been listed, "other methods" can only refer to methods, not of NFP, but of contraception. Since contraception is intrinsically evil, no one in good conscience can regard the use of these "other methods" as responsible parenthood. Unless these other methods were described only to warn people that it is immoral to use them, and to apprise them of their harmful biological consequences, there is a great danger that their description might be taken as a moral endorsement of their use.

All contraceptive pills cause abortion, at least some of the time. This means that the use of all varieties of the pill is immoral, not only because they are contraceptive, but also because they are potentially abortifacient. The pill also significantly increases the risk that the person who takes it will develop cancer of the breast, the cervix of the uterus, or the liver. These facts and other pathological effects of the pill should indeed be taught.

Hospital Mergers

The Guide presents us with a new problem in its discussion of the principle of legitimate cooperation. We are told that Catholic organizations of care providers may have to work in cooperation with those which do not share Catholic moral principles, and which tolerate practices that the Catholic tradition finds morally unacceptable. We are also told that such new partnerships "enable Catholic health care providers to exercise leadership and to witness to their core values and ethical commitments", and that "the principle of legitimate cooperation in the Catholic moral tradition acknowledges that, in some instances, the good that is sought can be achieved only through cooperation with what we find morally unacceptable."

The fact is that Catholic hospitals in Canada are forming mergers, or are or have been pressured to form mergers, and adopt other arrangements in which governance is shared with institutions which perform contraceptive sterilization and abortion, and other actions forbidden by Church teaching. How can a Catholic organization do this and refute the charge of formal cooperation, or at least proximate material cooperation? How can a claim not to have given scandal be justified? What is the good allegedly sought which could outweigh the evil? How can such partnerships promote or protect the role of the Catholic hospital as a witness to the faith, which faith is frequently nowadays, as it always has been, a sign of contradiction?

We are also told that when such a partnership has a significant impact on mission and values, the local bishop should be informed and consulted. Should not the relevant authorities in the Vatican also be consulted?

In February of 1999, Cardinal Anthony Bevilacqua of Philadelphia provided a protocol which gives criteria to be used by a Catholic health care provider in evaluating a proposed relationship or when "it is determined that no exclusively Catholic relationship is possible and a collaborative relationship with a non-Catholic provider is proposed." (Origins, March 11, 1999, Vol. 28: 38). The Philadelphia archdiocese also issued a 'Procedure for Evaluating Catholic Health Care Collaborative Relationships.' Canada stands in need of similar documents.

The Guide does hold that scandal should be eliminated when mergers between Catholic and non-Catholic institutions are proposed. It then tells us: "Sometimes a prophetic stance in a community may seem to cause scandal to some, but this may be necessary for the greater good." However, what is seen as a prophetic stance in the eyes of some Catholic institutions may not just seem to be, but may be in fact, a real scandal.

Sterilization

The statement by the Sacred Congregation of the Doctrine of the Faith in 1975 stated that contraceptive sterilization is absolutely forbidden and also that official approval of direct sterilization and, all the more so, its administration and execution according to hospital regulations, is something which is intrinsically evil and nothing can justify a Catholic hospital in cooperating with it. Any such approval would be contrary to the essential proclamation of the moral order.

Material cooperation, with the necessary distinctions between necessary and freely given cooperation, proximate and remote cooperation, remains valid but must be applied prudently when the case demands it. Even here, however, the danger of causing confusion and scandal must be avoided.

The document further stated that if Catholic hospitals merge with institutions which do not act according to Catholic moral principles, they must show that their cooperation is not formal, and if material, that it is appropriately explained. This implies that where these mergers have been formed, the Catholic hospitals involved owe the Catholic public a full and adequate explanation which proves that such mergers are 1) not formal, and 2) if material, are justified by the circumstances. Msgr. Win. B. Smith, in an article in the Linacre Quarterly, May 1977, concluded that there is no licit application of the principle of material cooperation in direct sterilization in Catholic hospitals.

Such mergers may be prophetic, but in my opinion, if they are not properly explained and justified to the public, they are more likely to be a scandal. Theologically, a scandal is not a mere shock or a surprise. It is any action--word, deed, or omission--which is either evil or has the appearance of evil, and is likely to furnish an occasion of sin for others. A Catholic hospital which provides space, equipment and personnel to a physician so that he or she can contravene the stated ethical norms of a Catholic facility is a source of scandal. These ethical norms should be part of the agreed protocols of that facility.

Organ Donation 

This section is well written but needs to be brought up to date. It correctly states:

"No removal of organs or other invasive activity for the purpose of organ or tissue donation may begin until the death of the donor has been authenticated by two physicians...."

Pope John Paul II, in his address to the Transplants Society Congress (August 29, 2000) stated:

"...it is helpful to recall that the death of a person is a single event, consisting in the total disintegration of that unitary and integrated whole that is the personal self. It results in the separation of the life-principle (soul) from the corporate reality of the person. The death of the person, understood in the primary sense, is an event that no scientific technique or empirical method can identify. Yet, human experience shows that, once death occurs, certain biological signs inevitably follow, which medical science has learned to recognize with increasing precision."

He goes on to say that bioethicists emphasize the importance of the cessation of all brain activity as a sign of the loss of the capacity of integration of the individual organism as such, rather than the lack of pulse and breathing for determining death.

As the Pope explained:

"Specifically, this consists in establishing, according to clearly determined parameters commonly held by the international scientific community, the complete and irreversible cessation of all brain activity (in the cerebrum, cerebellum, and brain stem). The complete and irreversible cessation of all brain activity, if rig orously applied, does not seem to conflict with the essential elements of a sound anthropology. Therefore, a health care worker, responsible for ascertaining death, can use these criteria in each individual case as a basis for arriving at the degree of assurance in ethical judgment which moral teaching describes as the basis for an ethically correct course of action. Only where such certainty exists, and where informed consent has already been given by the donor, or the donor's legitimate representatives, is it morally right to initiate the technical proceedings required for the removal of organs for transplant.

This statement is a pronouncement of the ordinary magisterium. The Pope does not make a pronouncement about the actual details of what clinical signs constitute brain death. This is left to physicians and scientists.

Criteria to be published

It would therefore appear to be incumbent on Catholic institutions engaged in organ transplantation to publish in detail precisely what criteria of complete and irreversible activity in the cerebrum, cerebellum, and brain stem, they use in determining the death of a donor.

It would also be necessary to establish whether or not these criteria are commonly held by the international community at the present time. If, by a careful study, it is found that the international community holds many different criteria for determining brain death, a determination would have to be made as to what criteria are held in common by that community. Further, a study should be made of the criteria which, in fact, are currently being used in Catholic hospitals to ascertain whether any or all or them are consistent with the Pope's teaching.

There are many doctors who care little whether their donor is dead or not. "There has been no lack", the Pope says, "of unscrupulous doctors who have removed organs while the patient was still alive, as transplants are easier then." There are also ethicists who question the definition of brain death as the permanent cessation of functioning of the entire brain: (Robert D. Truog, "Is it time to abandon brain death", Hastings Center Report, Jan-Feb. 1997). Others claim that the criterion of "whole-brain death" is only an "approximation": (James L. Bernat, "How much of the brain must die in brain death?", Journal of Clinical Ethics, 1992, 3: 21-26).

The University of Pittsburgh protocol allows critically ill patients or their surrogates to offer their organs for donation after withdrawal of life support, even though the patients never meet brain death criteria ("University of Pittsburgh Medical Center, Policy and Procedure Manual: Management of terminally ill patients who may become organ donors after death--Kennedy Institute of Ethics Journal, 3: 1993, A 1-A 15).

Truog (as above) also states that "qualified individuals who had given their consent, could simply have their organs removed under general anesthesia, without first undergoing an orchestrated withdrawal of life support, and that anencephalics could be similarly treated." For some years there has been a strong movement among doctors and ethicists to rationalize, as they do in the euthanasia debate, that killing may sometimes be a justifiable necessity, and there is also a movement to fabricate some sort of social consensus in these matters, which they hope would lead to their acceptance by the public.

In the light of this confused and disordered state of affairs, it appears to be mandatory for Catholic health care institutions to shoulder their responsibility to do the following:

1) State publicly their criteria for defining brain death and demonstrate that they are consistent with Papal teaching.

2) Assure that these criteria are rigorously applied by doctors who retrieve organs for transplantation.

3) Assess what criteria are currently being applied in Catholic hospitals.

4) Immediately correct any deviation from proper moral procedure in this regard.

5) Keep the public informed of its policies and actions.

Bishops are responsible

The prime responsibility remains, however, with our bishops. Speaking of Catholic institutions, Pope John Paul II has stated: "Whether these are agencies for the family or for social work, or institutions dedicated to teaching or health care, bishops canonically erect and recognize these structures and delegate certain responsibilities to them. Nevertheless, bishops are never relieved of their own personal obligations. It falls to them, in communion with the Holy See, both to grant the title 'Catholic' to church-related schools, universities, health-care facilities, and counselling services, and, in cases of serious failure to live up to that title, to take it away."

This analysis is offered in the hope that the Health Care Ethics Guide will be modified appropriately and thereby achieve its well- intentioned purpose.

Editor's note: In September 2000, Dr. Shea sent a copy of his review to each of our bishops in order to make them aware of the above- mentioned difficulties. The Guide carries the Nihil obstat of the Permanent Council of Bishops. This is unusual. Normally, the Nihil obstat is provided by one individual who then is responsible for it. To assign it to a collectivity, one moreover whose membership changes year after year, seems to make no one responsible.

Dr. John Shea is a retired diagnostic radiologist and a Fellow of the Royal College of Physicians of Canada. He is past president of the Catholic Doctors' Guild of Toronto. At a recent banquet sponsored by Witness, Dr. Shea was honoured as an outstanding lay apostle.