JILT 1997 (3) - Peter Bowal
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Robert Cavalier et al's A Right to Die:The Dax Cowart Case - An Ethical Case Study on CD-ROMCD-ROM disk Routledge , 1996, $49.99 Reviewed by Contents
This is an IT Review published on 31 October 1997. Citation: Bowal P, 'Robert Cavalier et al's The Dax Cowart Case - An Ethical Case Study on CD-ROM', IT Review, 1997 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/sw/97_3rtd/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_3/bowal/> 1. IntroductionThis CD-ROM boards a subject, medical-legal 'right to die' ethics, which is a white hot topic at the moment in most Western societies. The top courts in Canada and the United States have recently ruled on the question. This is the ultimate squaring off between individual rights or personal autonomy and the public interest. The CD format represents a promising format for the delivery of such instruction. The self-paced tutorial is not a new concept, of course, but CD-Rom technology is undeniably a sensory improvement over the audio-cassette and paper method of legal education. This review is divided into a commentary on each of: (1) the substantive law and issues; and (2) the pedagogical package. 2. Substantive IssuesThe term 'right to die' is more of a styling of popular culture than it is a meaningful descriptor. Everyone, by nature, has the duty to die, so the right to die seems inherent in that. Formal legal prohibitions against suicide, by definition, cannot be effectively enforced. The essential question is the extent to which the state can be engaged in bringing about premature death of a consenting adult. This state involvement may be its policy to withhold criminal sanctions against a third party who assists in that consensual death. Today, the demarcation is between the voluntary refusal of medical treatment in cases which can be generally classed as 'terminal' (passive euthanasia, often legally and morally countenanced) on one hand, and excusing a third party for actively causing the death of someone who wishes to die (active euthanasia, often problematic in the law) on the other hand. In this true to life case, a young single man ('Dax') is seriously burned in an explosion. He requires daily treatment in order to live, but that treatment is very painful. The treatment is so unbearable, that it drives Dax to request discontinuance of it. He would prefer to die than live in such pain. As in the multitude of other real world cases, neutrality or indecisiveness would amount to the continuation of treatment against the patient's wishes. Nevertheless, not unlike a decision on capital punishment, this decision always would appear more attractive, because the other alternative is irrevocable and final. The legal jurisdiction is the United States. The user is prompted to reflect on these facts and observe interviews with various people, including Dax himself, his mother, his lawyer and his medical team. Dax gives his own views on video and the user can hear his excruciating groans of pain. This study is presented in the form of 'guided inquiries', where the user registers an initial decision and then answers questions to expose one's reasoning and reflect on the consequences of that decision. One's decision could change over time, and these changes can be recorded, as the user processes further information. A parallel 'archives' or library contains segments on the accident (which seem superfluous to the decision at hand), treatment and a few legal resources. Both tracks contribute to an open-ended exploration, which would lead to a final decision on the part of the user. There is, naturally, no one 'correct' final decision. This program's choice of subject and factual background create a valuable scenario to weigh evidence and assess relative importance of differing sources and points of view. This also means, however, that it would be easy for a user to simply defer to the judgment of a professional ethicist, from the several available. The whole program also presumes that a user would never be governed by an absolute ideological position, such as a Christian one which holds that God is the giver and taker of all life. Instead, one is expected to identify which facts influence one's determination, such as that Dax had been a young, active person before the injury. We do learn what actually and ultimately happened to Dax. That information is not a necessary part of this educational experience, but did serve as an interesting footnote. Users are indeed drawn close to Dax' personal circumstances throughout the exercise. When progressing through the program, I felt to a considerable degree like I was participating in a career counselling session. I expressed my preferences and was called on to explain my rationales in terms of relevance and weight. This may have erred on the side of tedious over-examination. After some time at this, however, one is apt to make selections that clearly support the end one seeks to reach, in order to complete the exercise. As a lawyer, I felt compelled to let legal imperatives make the decision, and ignore what everyone else thought. One realizes that a function of ethical inquiry is to suspend the law and ask what it should permit, require or forbid. For this reason, I do not think this instructional program is a strong candidate for use in the law school curriculum. It would serve better in a first or second year college-level ethics course. Many of the commentators' perspectives that the user was exposed to were unimaginative. All predictable arguments and opinions were canvassed, for example, from the physicians. No new territory was charted here. 3. The Pedagogical PackageThe program is sold in a drab, almost morbid, black carton. A black and white photo of Dax in his prime pre-accident form, placed on this carton, dramatized the subject. There is an e-mail contact for this CD, and web page for general publisher information and feedback. This program is a basic CD to install and navigate. The User's Guide is long, and would compare to any other stand alone written manual or case work-up for such a study. This User's Guide cancels out much of the technological advantage of the CD medium. Moreover, the introductory loop occupied 21 frames (mouse clicks), and seemed targeted at the level of a very basic user and learner. I experienced a glitch when initially reading the CD. It took a fair amount of experimentation with screen resolution and font size before the CD played acceptably. This distraction was not welcomed, and one might expect that this hardware settings problem will likewise confuse a number of other users who do not know a pixel from a pizza. This is stated to be version 1.0. I cannot readily envision how this CD would be content upgraded. The Oregon Death with Dignity Act, and the Washington State and New York legislation were dealt with by the United States Supreme Court in June 1997. The Court determined 'right to die' legislation to be within State jurisdiction. This is the only foreseeable update. The cover warning indicates that the program 'contains strong and graphic material' and counsels discretion and student consent. Given this serious subject and the expected maturity of the users, this warning clearly overstated the risk. Some of the graphics were so dark as to be unrecognizable. The audio, however, is of excellent quality. The short audio-visual vignettes were well prepared, but too short (a few sentences from each commentator involved in this case) and too similar to have any serious impact on the final decision. Given that the decision was presented simply as a withdrawal of treatment, they also for the most part ventured into irrelevant considerations. Who cared if the nurse considered intervening with life-ending drugs? Most useful were the auxiliary commentaries which accompanied the video segments. For example, the difference between killing someone and letting him die was illustrated. The commentaries such as the similarities between the Dax case and the Quinlan and Cruzan cases (they could not express their wishes) were instructive as far as they went. We really do not know who the intended audience is, or the learning objectives of this program. Any quick and easy answer is spurned in the layout of the program. All the issues, some more compelling than others, are methodically set out, except the arguments for not permitting personal choice in all such cases. All that the user learns is that the physicians are supposed to treat patients as best they can. Are there other public policy interests which operate against conferring free choice on the patient? I doubt whether many users would change their mind about the issue, by using this program. Certainly much sympathy for Dax is invoked in the presentation. Users would be inclined, one expects, to put themselves in his position and feel the same way he does. Only those who are possessed of an over-arching 'pro life' philosophy would likely ignore the circumstances of this case and vote to disregard his wishes. The law stands in the way of Dax; that is to say that it favours the continuation of treatment in such cases. Users are called on to formulate, or at least surface, their own values on this question, and then deal with the effect of the law. 4. ConclusionI enjoyed using this program for about one hour, but am unlikely to return to it. Nor would I, as a law professor, have much occasion to recommend its adoption and use in an academic environment, particularly a law school. It forces one to come to grips with one's latent beliefs in a compelling real world scenario, before most people will have to do so, if they ever do so. Yet, I believe the program comes up short on introducing any novel points of view. It does not overcome the reflexive moral views people would bring into this exercise. Accordingly, it might only serve to reinforce them. It is hard to conclude overall how this CD-Rom would furnish a greater learning experience than a video documentary which passed through the same territory in 30 minutes. The reason that I would prefer the video is that it would be conducted in a group classroom environment. The give and take of open-ended discussion, and the oral articulation and defence of one's views would likely prove most valuable for this subject. In other words, this may be one of the few academic subjects where lower audio-visual technology, such as a video, would be more effective than the frustration of counting pixels and the isolation that comes with staring into a computer monitor somewhere in a library. |
