GERALD
KELLY
(1902-1964)
From: Theological
History of Catholic Teaching on Prolonging Life, Gary M. Atkinson, Ph.D,
Chapter 7 of Moral Responsibility in Prolonging Life Decisions ed. by
McCarthy & Moraczewski
(Pope John Center, St. Louis, 1981, distr. by Franciscan Herald Press Chicago);
Kelly is an important figure for this study. As a moral theologian he was intrigued by the history of the concept of ordinary and extraordinary means. He published two key articles in Theological Studies, “The Duty of Using Artificial Means of Preserving Life” (1950, hereafter “Artificial”)22 and “The Duty to Preserve Life” (1951, hereafter “Preserve”).23 The earlier article, “Artificial,” is the lengthier of the two. In it Kelly presented a resumé of the traditional position and requested help from his readers in resolving a few of the more difficult questions raised. The shorter, “Preserve,” appeared eighteen months later and contains Kelly’s further reflections on the topic in response to suggestions from his readers.
In the first article, Kelly summarized a descriptive approach to the distinction of ordinary and extraordinary means of prolonging life:
Speaking of the means of preserving life and of preventing or curing disease, moralists commonly distinguish between ordinary and extraordinary means. They do nor always define these terms, but a careful examination of their words and examples reveals substantial agreement on the concepts. By ordinary they mean such things as can be obtained and used without great difficulty. By extraordinary they mean everything which involves excessive difficulty by reason of physical pain, repugnance, expense, and so forth. In other words, an extraordinary means is one which prudent men would consider at least morally impossible with reference to the duty of preserving one’s life.24
Kelly also notes the uncertain status of major operations in these days of anesthesia and antibiotics. He finds a tendency among modern authors to consider most operations today as ordinary means, though there is also a common willingness to admit the possibility that a strong subjective repugnance on the part of the patient could render those operations extraordinary means for some people.
Kelly raises the question of whether the concept of the “extraordinary” should be treated as relative or absolute, a question raised already in this chapter. Kelly writes that his “general impression” is that “there is common agreement that a relative estimate suffices. In other words, if any individual would experience the inconvenience sufficient to constitute a moral impossibility in the use of any means, that means would be extraordinary for him.”25 On the other hand, Kelly cites a number of authors who believe that there is an absolute standard of an extraordinary means beyond which no one, regardless of his condition, need go.
Kelly makes two other points that should be mentioned here. First, he notes that the standard moralists he has consulted are concerned solely with the responsibility of the individual patient and say nothing about the duties of the family or of the medical profession. Second, Kelly points out that the moralists are in agreement that although a patient is per se not obliged to use extraordinary means in preserving his life, the use of such means is permissible and usually admirable. Furthermore, a patient per accidens may even be obliged to use extraordinary means “if the preservation of his life is required for some greater good such as his own spiritual welfare or the common good.” As traditionally cited examples, one might consider the obligation of a person to take extraordinary steps to preserve his life until he can receive the sacraments, or the obligation of a government leader to keep himself alive if his leadership is necessary for the welfare of the community.
The foregoing is relatively unproblematical, at least on a theoretical level. But Kelly continues in a way that will produce terminological difficulty. This occurs when Kelly raises the question whether a patient can be obliged to employ useless ordinary means. Kelly cites several authors including Alphonsus. Ballerini-Palmieri and Noldin-Schmitt, as seeming to espouse the view that no remedy is obligatory unless it offers a reasonable hope of checking or curing a disease. I would not call this a common opinion because many authors do not refer to it, but I know of no one who opposes it, and it seems to have intrinsic merit as an application of the axiom, nemo ad inutile tenetur [i.e., No one can be obliged to do what is useless]. Moreover, it squares with the rule commonly applied to the analogous case of helping one’s neighbor: one is not obliged to offer help unless there is a reasonable assurance that it will be efficacious.26
Kelly is thus willing in “Artificial” to countenance the possibility of some means being ordinary and yet optional and non-obligatory. At the close of that article, Kelly admitted that many of the points he had raised call for further discussion. Two in particular, he said, were of “special import,” and one of these was the possibility “that even ordinary, artificial means are not obligatory when relatively useless.” His original article can be seen, then, as a call for further discussion on certain controversial issues.
In his second article, Kelly presents some of the reactions his earlier paper had elicited from theologians and offers further reflections of his own. He writes in “Preserve”:
Theologians have responded favorably to the suggestion that even an ordinary artificial means need not be considered obligatory for a patient when it is relatively useless. It was proposed, however,--and I agree with this--that, to avoid complications, it would be well to include the notion of usefulness in the definitions of ordinary and extraordinary means. This would mean that, in terms of the patient’s duty to submit to various kinds of therapeutic measures, ordinary and extraordinary means would be defined as follows:
Ordinary means are all medicines, treatments, and operations, which offer a reasonable hope of benefit and which can be obtained and used without excessive expense, pain, or other inconvenience.
Extraordinary) means are all medicines, treatments, and operations, which cannot be obtained and used without excessive expense, pain, or other inconvenience, or which, if used, would not offer a reasonable hope of benefit.
With these definitions in mind, we could say without qualification that the patient is always obliged to use ordinary means. On the other hand, insofar as the precept of caring for his health is concerned, he is never obliged to use extraordinary means; but he might have an extrinsic obligation to use such means, e.g., when his life is necessary for the common good or when a prolongation of life is necessary for eternal salvation.27
It will be helpful to compare these definitions of ordinary and extraordinary means with the descriptions cited from the first article above. There we see the term ordinary as encompassing only those means “as can be obtained and used without great difficulty.” The new definition of ordinary) is changed in two ways, one obvious and other more subtle. First, Kelly quite obviously adds the concept of usefulness to the definition of ordinary. But, secondly, there is a more radical change in the way in which the term ordinary is treated. In the earlier definition, the term is treated as descriptive term, as simply referring to how easily the means may be obtained and employed. In the latter definition, and the quotation makes this clear, Kelly treats the term as an essentially normative or evaluative e one. It is no longer used simply to describe ease of use; it is now used to make a judgment regarding obligatoriness of use. For the earlier definition, it made quite good sense to suggest as a theoretical possibility that some ordinary means might not be obligatory. But in the second definition, it makes no sense (at least in Kelly’s mind) to suggest an ordinary means (as newly defined) might not be obligatory: “without qualification the patient is always obliged to use ordinary means.” In other words, to call a means non-obligatory one must, using Kelly’s new definitions, call the means extraordinary. Ordinary = obligatory. extraordinary = per se optional, and these two equations are justified by reducing the obligatoriness of means to their being easily obtained and employed and their offering reasonable hope of benefit.
Kelly’s two articles mark, as it were, a kind of watershed between the descriptive and normative senses of ordinary and extraordinary. Writing in his first article and surveying the past history, Kelly could provide a descriptive analysis of ordinary. Writing in his second, in response to suggestions, he provides a normative analysis. Of course, this descriptive/normative distinction can be pushed too far, for even in the first definition the feature of “without great difficulty” has normative elements. And in the second, the elements of being without excessive burden and offering reasonable hope of benefit are somewhat descriptive. Nevertheless, the differences between the two definitions are sufficiently great to warrant calling them definitions of different types of concepts. Thus, the possibility of serious confusion is created when the same word is used to bear such fundamentally different meanings .
In his first article, in discussing the case of a dying patient whose life can be extended for a few weeks by intravenous feeding, Kelly holds that the issue comes down to the usefulness of the means. “To me, the mere prolonging of life in the given circumstances seems to be relatively useless, and I see no sound reason for saying that the patient is obliged to submit to it.”28 A conscious patient should be allowed to decide for himself. If unconscious, Kelly still says, “I see no reason why even the most delicate professional standard should call for their use. In fact, it seems to me that, apart from very special circumstances, the artificial means not only need not, but should not, be used, once the coma is reasonably diagnosed as terminal.”29
Kelly cites the positions of two earlier commentators on the case. The original commentator, Joseph P. Donovan, had held that the IV feeding itself involves no moral impossibility and hence should be considered an ordinary means. Stopping IV would, according to Donovan, be a form of mercy killing. 30 On the other hand, Joseph V. Sullivan had held the position that extraordinary means are relative to the patient’s condition, and, because IV feeding is an artificial means of prolonging life, one may be more liberal in application of principle.31 Therefore, Sullivan considers the means to be extraordinary and the physician to be justified in discontinuing the IV.
Kelly’s position is to offer a distinction. He is in agreement with Donovan in calling IV an ordinary means, but he says that “one may not immediately conclude that it is obligatory.” Rather, Kelly wishes to consider such means ordinary, but useless, artificial means of preserving life and so optional. Thus, Kelly is in practical agreement with Sullivan over the discontinuance of the means, but sides with Donovan on designating the means as ordinary. The strong impression conveyed is that both Sullivan and Donovan are using the concept of ordinary which Kelly later adopted in his second article. Under his revised conception, Kelly would have agreed with Sullivan in toto, calling the means useless, and therefore extraordinary, and therefore optional.
Kelly says that using oxygen or IV feeding merely to sustain life for a while in “hopeless” cases can be called remedies “only in the very wide sense that they delay the hour of death.” Because they sustain life, they in a sense offer a hope of success. But their expense quickly can mount up. For a combination of reasons, then, the use of artificial means of preserving life for a few days or weeks is optional.
Kelly notes that his principles embody a great deal of imprecision: There are degrees of “success.” It is one thing to use oxygen to bring a person through a crisis; it is another thing to use it merely to prolong life when hope of recovery is practically negligible. There are also degrees of “hope,” even when it concerns complete recovery. For example, in one case the use of oxygen to bring a
patient through a pneumonia crisis may offer very high hope, whereas in another case the physical condition of the patient may be such that there is only a slim chance of bringing him through the crisis. Finally, there are degrees of difficulty in obtaining and using ordinary means. Some are inexpensive and very easy to obtain and use; others may involve much more difficulty, though not moral impossibility.32
All of these features add considerably to the practical difficulties encountered in deciding about concrete cases. But they do not necessarily create theoretical problems of understanding.
NOTES
21. E. Healy, Moral Guidance, (Chicago: Loyola University Press, 1942), p. 162.
22. G. Kelly, “The Duty of Using Artificial Means of Preserving Life,” Theological Studies, XI (1950), pp. 203‑220.
23. G. Kelly, “The Duty to Preserve Life,” Theological Studies, XII (19 5 1), pp.550‑556.
24. Kelly, “Artificial,” p. 204.
25. ibid., p. 206.
26. ibid., p. 207‑08.
27. Kelly, “Preserve,” p. 55 0.
28. Kelly, “Artificial,” p.219.
29. ibid,, p. 220.
30. Homiletic and Pastoral Review, XLIX,(1949), p. 904.
31. J. Sullivan, Catholic Teaching on the Morality of Euthanasia, (The Catholic University of America Studies in Sacred Theology, Second Series, No. 22, Washington, D.C.: The Catholic University of America Press, 1949) p. 72.
32. Kelly, “Artificial,” p. 2 14.
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