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An Oregon jury recently ruled that a child born with Down syndrome was wrongfully born because her mother would have destroyed her had the prenatal testing been properly performed.  Now, Bioedge reports about a similar case before the European Court of Law and Justice.

Sigh.  Our ability to love sure is shrinking.  But I bring the case up because a brief filed against the wrongful birth concept by the European Center for Law and Justice makes a great distinction between medical “treatment” and medical “care,”—which are often conflated—noting that different laws apply to each.

That gave me a real “Eureka!” moment because I think the differences noted in the brief present a very effective way forward in debating and winning (from my perspectives) many of the bioethical controversies of our day.  From the brief:

The application submitted to the Court introduces a confusion between medical care (without a therapeutic aim) and care or treatment (with a therapeutic/medical aim) with the purpose of applying to the Down’s syndrome screening test the same legal rules as for care or treatment with a therapeutic/medical aim. It is important to understand that there is a difference of nature of these two acts, and that this difference explains the existence (and requires the application) of different legal rules for different medical acts, depending on whether or not they have a therapeutic purpose...

The recent developments in the law introduced exemptions allowing for the harm of life, dignity, and in particular to the integrity of the person in cases where such acts have a non-therapeutic purpose for the person herself. This is case of laws decriminalizing abortion (including the embryo) without a direct personal benefit for the person herself, etc. These acts depart from the principle of therapeutic purpose of medicine, and this is why they follow a special legal regime which seeks to protect other rights and interests involved, including the principles of dignity, integrity, primacy of human beings, respect for the consent, and limitation of the harm to the physical integrity of the person.

Yes! This ”treatment” versus “care” distinction is crucial and one that I have been struggling to describe succinctly in various contexts.  However, I don’t agree with “care” as the proper word, since to treat is also to care, and in many ways, to “care” under the brief’s definition, is to actually abandon.

Thus, I propose a slightly different terminology, e.g., “treatment” (therapeutic), to be distinguished from service,” (non therapeutic/lifestyle facilitation), and will apply those terms in my work going forward. Here are a few examples where the factual distinction between “treatment: and “service” is particularly relevant in bioethical controversies:

1. Health Care Rationing: We are told by the Medical Intelligentsia and liberal media that we have to ration care because of a medical resource crisis. But why do we have the crisis?  In large part because we have created kitchen sink-type entitlements under Medicaid, Medicare, Obamacare, etc. that include many forms of non-therapeutic services as co-equally important to therapeutic medical treatments.  One way to ensure greater access to therapeutic exams and treatments would be to eliminate free coverage for many or most non-therapeutic services. People could then buy added coverage to pay for services if they wanted.  At the very least, we should try that before engaging in medical discrimination rationing.

2. Medical Conscience: One of the great bioethical battles of this decade will be over whether doctors, nurses, and other medical professionals have a right to refuse to engage in life-taking medical procedures.  And again, distinguishing between treatment and service in the medical context would greatly assist (along with other criteria I have identified previously) in determining the proper balancing between ”patient rights”—which could be defined as access to proper treatment—and what I believe should be the professionals’ right not to participate or be complicit in the taking of any human life, which as the brief notes, generally fall under the services (using my lexicon) category.

3. Futile Care Theory: Medical futility seeks to create a right of doctors/bioethicists to refuse wanted life-sustaining treatment.  By distinguishing between therapeutic (extending life) treatment and life-taking non therapeutic services, we can more easily illustrate why conscience should be permitted—just as no doctor would be forced to perform a rhinoplasty—and futile care shouldn’t be—refusing treatment to ensure a patient dies sooner—at least without an open and public court proceeding.

Contemporary medicine involves both treatments and services. There is no way that will change any time soon. But different rules, laws, and ethical principles should apply to these generally distinguishable fields of medical intervention. (Yes, I know there are some blurred borders.)  Doing so, I believe, would help resolve many of the most contentious bioethical debates facing society.

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