Although Friedrich Nietzsche was not noted for his views on medical ethics, the above quotation captures the essence of James Lindgren\u27s article. Lindgren posits that the recent O\u27Connor\u27 and Cruzan decisions signal a shift in the law on the withdrawal or withholding of treatment. He concludes that the requirement set forth in those cases-that an individual must have clearly and convincingly expressed his or her wishes before treatment can be terminated--errs unduly on the side of life. Basing his conclusion primarily on preferences revealed by public opinion polls, he contends that a better rule would be to presume, subject to proof otherwise, that an individual desires death when the individual falls into one or more of fourteen specified categories

English, David M.

English

University of Missouri School of Law

University of Missouri School of Law Scholarship RepositoryFaculty Publications1993Defining the Right to DieDavid M. EnglishUniversity of Missouri School of Law, englishda@missouri.eduFollow this and additional works at: http://scholarship.law.missouri.edu/facpubsPart of the Health Law and Policy CommonsThis Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted forinclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository.Recommended CitationDavid M. English, Defining the Right to Die, 56 Law & Contemp. Probs. 255 (1993)COMMENTDEFINING THE RIGHT TO DIEDAVID M. ENGLISH*Many die too late, and few die too early. The doctrine still soundsstrange: "Die at the right time!"1Although Friedrich Nietzsche was not noted for his views on medical ethics,the above quotation captures the essence of James Lindgren's article.2 Lindgrenposits that the recent O'Connor' and Cruzan4 decisions signal a shift in the lawon the withdrawal or withholding of treatment. He concludes that therequirement set forth in those cases-that an individual must have clearly andconvincingly expressed his or her wishes before treatment can be terminat-ed--errs unduly on the side of life. Basing his conclusion primarily onpreferences revealed by public opinion polls, he contends that a better rulewould be to presume, subject to proof otherwise, that an individual desires deathwhen the individual falls into one or more of fourteen specified categories.5Lindgren's arguments have considerable appeal. As his excellent compilationof polls reveal, a substantial majority of individuals would prefer that lifesupports be withdrawn in the event of a terminal illness or irreversible coma.Yet, only a tiny minority have executed an advance directive with regard to theirfuture care,6 and a majority have not otherwise made their views known.7Lindgren overstates his case, however. His conclusion that O'Connor andCruzan represent a change in direction is incorrect. Furthermore, whilepresumed intent should play a role in the formulation of a rule on thetermination of treatment, it should not be made the exclusive test.Copyright © 1993 by Law and Contemporary Problems* Professor of Law, University of South Dakota; Co-Reporter, Uniform Healthcare Decisions Act;Chair, Committee on Healthcare Decisions, ABA Section of Real Property, Probate and Trust Law.1. Friedrich Nietzsche, Thus Spoke Zarathustra: First Part, in THE PORTABLE NIETZSCHE 183(Walter Kaufmann ed., 1954).2. James Lindgren, Death By Default, 56 LAW & CONTEMP. PROBS. 185 (Summer 1993).3. In re Westchester County Medical Center on behalf of O'Connor, 531 N.E.2d 607 (N.Y. 1988).4. Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988), affid sub nom Cruzan v. Director, Mo. Dept.of Health, 497 U.S. 261 (1990).5. For the categories, see Lindgren, supra note 2, at 228-29.6. The results of a recent North Carolina survey are striking. Of 75 nursing home residentsinterviewed, 65 expressed a desire to have treatment withdrawn under at least some circumstances, butnone had executed a living will. Elizabeth R. Gamble, Penelope J. McDonald & Peter R. Lichstein,Knowledge, Attitudes, and Behavior of Elderly Persons Regarding Living Wills, 151 ARCHIVES INTERNALMED. 277 (1991).7. The results of a recent New York nursing home survey are similarly striking. Of 103 residentsinterviewed, 62 had not discussed their feelings about future care with anyone. Jiska Cohen-Mansfieldet al., The Decision to Execute a Durable Power of Attorney for Health Care and Preferences Regardingthe Utilization of Life-Sustaining Treatments in Nursing Home Residents, 151 ARCHIVES INTERNAL MED.289, 291 (1991).HeinOnline  -- 56 Law & Contemp. Probs. 255 1993LAW AND CONTEMPORARY PROBLEMS [Vol. 56: No. 3Although Lindgren states that "[t]here are almost as many appellateapproaches to withdrawing life-sustaining treatment as there are appellatecases, ' in reality there are only two main approaches. Cruzan and O'Connorrepresent the extreme. Other courts have not been so restrictive. Like Cruzanand O'Connor, they recognize clear and convincing evidence of an individual'sprior express wishes as a standard, but, absent such evidence, treatment also maybe withheld or withdrawn under either a substituted judgment9 or best intereststest.1° Furthermore, since the Supreme Court's decision in Cruzan, there islittle evidence of a retreat from this more liberal approach. Florida" andIllinois 2 have reconfirmed their approval of the substituted judgment test, andIndiana has allowed the withdrawal of treatment from an individual who neverhad the capacity to express her views on the subject. 3Despite the liberality of a majority of the courts, one cannot conclude thatthe results are totally satisfactory. The express wishes standard, as applied, hasbeen too restrictive. Patients who have met this standard have generally madetheir views known only following the onset of a terminal illness, 4 or undercircumstances where their professional training and background added extracredibility to their statements.1 5 Statements made without such a clear focus oradded authority have generally been held insufficient.168. Lindgren, supra note 2, at 188.9. The substituted judgment test requires that the surrogate decisionmaker attempt to ascertainthe decision that the patient would have made had the patient been competent to decide.10. For a comprehensive discussion of the judicially created standards for the withdrawal orwithholding of treatment, see ALAN MEISEL, THE RIGHT TO DIE § 9.1-.35 (1989 & 1992 Supp.) Thereare variations, to be sure. Florida, for example, recognizes substituted judgment, but has rejected a bestinterests approach. See In re Browning, 543 So. 2d 258, 273 (Fla. Dist. Ct. App. 1989), affd, 568 So. 2d4 (Fla. 1990). New Jersey has come up with its own formulation for conscious individuals who will diewithin a year or less. Treatment may be withheld or withdrawn under either a "subjective," "limited-objective," or "objective" test. The subjective test is the same as express wishes, however, and theobjective is the same as best interests, at least as applied in some states. Only the limited-objective teststakes out new ground. While substituted judgment is the primary criteria, treatment may only bewithheld or withdrawn if the burdens of treatment markedly outweigh the benefits. See In re Conroy,486 A.2d 1209 (N.J. 1985).11. In In re Browning, 568 So. 2d at 17, the court approved the enforcement of a living will. Whilea living will might be said to be clear and convincing evidence of an individual's express wishes, the courtapproved the withdrawal of treatment pursuant to a substituted judgment standard.12. In re Estate of Greenspan, 558 N.E.2d 1194 (I11. 1990). The importance of Estate of Greenspan,however, is undercut somewhat by the fact that it was decided only 14 days after the Supreme Court'sdecision in Cruzan and failed to cite the Supreme Court's opinion.13. In re Lawrance, 579 N.E.2d 32 (Ind. 1991). Lawrance is especially significant because it is thefirst Indiana appellate court case to address termination of treatment.14. See Couture v. Couture, 549 N.E.2d 571, 576 (Ohio Ct. App. 1989); Leach v. Akron GeneralMedical Center, 426 N.E.2d 809, 815 (Ohio C.P. 1980).15. See In re Eichner, 420 N.E.2d 64 (N.Y. 1981) (member of religious order expressed views onuse of respirator following seminar on Quinlan and later reiterated views immediately prior to surgery);McConnell v. Beverly Enterprises-Connecticut, Inc., 553 A.2d 596 (Conn. 1989) (head nurse and managerof emergency room repeatedly told family and co-workers that she did not want to be kept alive byartificial means, including by a feeding tube).16. See Cruzan, 760 S.W.2d at 411,424; In re Jobes, 529 A.2d 434,443 (N.J. 1987); In re O'Connor,531 N.E.2d at 613. Maine is the exception. See In re Swan, 569 A.2d 1202 (Me. 1990); In re Gardner,534 A.2d 947 (Me. 1987).HeinOnline  -- 56 Law & Contemp. Probs. 256 1993Page 255: Summer 1993] DEFINING THE RIGHT TO DIESubstituted judgment has not fared much better. It has been inappropriatelyapplied to infants and to never-competent adults, 7 whose personal values arepurely speculative. There is no agreement on the relevant factors. 8 Conse-quently, it provides little guidance on how to infer the patient's choice.' 9Furthermore, the limited number of empirical studies raise questions as to theaccuracy of the surrogate decisionmakers' predictions.2The best interests test has played a clearly subordinate role. No consensusexists as to what is meant by "best interests," but there are some emergingtrends. One approach has been to balance the burdens of treatment against itsexpected benefits, although that has proven unworkable when applied topermanently unconscious patients.21 The test has been applied to require thata guardian follow his or her own conception of the ward's best interests,following consideration of all available information, including the ward's priorstatements.22 It has been stated that best interests should be based on societalnorms,23 or should reflect the decision of a hypothetical reasonable person.24Lindgren would reverse the present system. Instead of requiring a showingthat treatment should be discontinued under an express wishes, substitutedjudgment, or best interests theory, he lists fourteen situations where a presump-tion of nontreatment would apply,25 although, for purposes of the presentdiscussion, they will be reduced to four:17. See In re Barry, 445 So. 2d 365 (Fla. Dist. Ct. App. 1984) (infant); Custody of a Minor, 434N.E.2d 601 (Mass. 1982) (infant); Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d417 (Mass. 1977) (never-competent adult).18. Saikewicz, 370 N.E.2d at 432, which first adopted the test in a termination of treatment context,listed five factors. Alan Meisel, from his review of the case law, has uncovered 16 more. MEISEL, supranote 10, § 9.13. Judge Hancock of the New York Court of Appeals has opined that "no exhaustive listcan be set forth." O'Connor, 531 N.E.2d at 617 (Hancock, J., concurring).19. This argument has been most forcefully made in Rebecca S. Dresser & John A. Robertson,Quality of Life and Non-Treatment Decisions for Incompetent Patients: A Critique of the OrthodoxApproach, 17 LAW, MED. & HEALTH CARE 234 (1989).20. See Richard F. Uhlmann et al., Physicians' and Spouses' Predictions of Elderly Patients'Resuscitation Preferences, 43 J. GERONTOLOGY Ml15 (1988) (spouses significantly overestimated patients'preferences in three of six illness scenarios); Nancy R. Zweibel & Christine K. Cassel, Treatment Choicesat the End of Life: A Comparison of Decisions By Older Patients and their Physician-Selected Proxies,29 GERONTOLOGIST 615, 618 table 2 (1989) (proportion of instances where patient wanted the oppositeof what their proxies predicted ranged from 24% for tube feeding to 50% for chemotherapy). But seeMarion Danis et al., Patients' and Families' Preferences for Medical Intensive Care, 260 JAMA 797, 799(1988) ("[f]amilies' preferences were similar to those of surviving patients").21. The benefits versus burdens approach was first applied in Barber v. Superior Court, 195 Cal.Rptr. 484 (Ct. App. 1983). The principal burdens considered by the courts include pain and indignity.The principal benefit is continued quality of life. See MEISEL, supra note 10, §§ 9.27-.32. Quality of life,however, was rejected as a factor in the leading benefits versus burdens case. In re Conroy, 486 A.2d1209 (1985). The sole burden that the court was willing to consider was "recurring, unavoidable andsevere pain," id at 1232. The court later found it impossible to apply this standard when it waspresented with two cases involving patients in persistent vegetative states. See In re Jobes, 529 A.2d 434(N.J. 1987); In re Peter, 529 A.2d 419 (NJ. 1987).22. In re Drabick, 245 Cal. Rptr. 840 (Ct. App. 1988).23. Foody v. Manchester Memorial Hosp., 482 A.2d 713, 720-21 (Conn. 1984).24. HASTINGS CENTER, GUIDELINES ON THE TERMINATION OF LiFE-SUSTAINING TREATMENT ANDTHE CARE OF THE DYING 28-29 (1987).25. Lindgren, supra note 2, at 228-29.HeinOnline  -- 56 Law & Contemp. Probs. 257 1993LAW AND CONTEMPORARY PROBLEMS(1) permanently unconscious patients;(2) terminally ill but conscious patients;(3) patients suffering a great deal of physical pain; and(4) patients with an illness that makes them totally dependent on afamily member or other person for their care.Lindgren recognizes that polls have their limitations, and nowhere are thoselimitations more obvious than with respect to category (4). Several millionindividuals would currently appear to fit within that category. It might includea sizeable portion of individuals with development disabilities, a substantialminority, if not a majority of the elderly nursing home population, and asignificant number of the elderly who are cared for at home.26Lindgren stands on far more solid ground when it comes to category (1). Infact, if O'Connor and Cruzan are regarded as aberrations, Lindgren may havealready won the war. Although the theories by which they reach their result mayvary, the courts have not been hesitant to authorize withdrawal of treatmentfrom permanently unconscious patients. 27 A growing body of commentaryargues for the very presumption that Lindgren seeks. 8 Nontreatment appearsto be becoming the norm.The more difficult questions are encountered when it comes to categories (2)and (3). Poll data may suggest that terminally ill but conscious patients wouldwant treatment terminated, but the reliability of those polls as a predictor forpublic policy is open to question. There is no agreement on what is meant bya "terminal illness., 29  Furthermore, the average time between the onset of afinal illness and death is twenty-nine months.3 ° Is Lindgren suggesting that alltreatment be stopped upon the first diagnosis? Perhaps what he intends is thattreatment should be terminated if the patient has a "terminal illness" as definedin most living will statutes, which require either that death be "imminent, 31 or26. Approximately 1.5 million elderly Americans reside in nursing homes. More than 70% of themare unable to perform three or more activities deemed essential for daily living, and a substantialmajority have one or more major psychiatric disorders. In 1985, over 60% of elderly with three or morefunctional impairments did not reside in nursing homes. See David M. English, The Rights of NursingHome Patients, TR. & EST., July 1991, at 28.27. Alan Meisel has catalogued 33 cases in which the courts have described the patient as being ineither a coma or persistent vegetative state. MEISEL, supra note 10, § 5.20. In only two of thosedecisions was there a final denial by the court of a request to terminate treatment.28. See, e.g., Charles H. Baron, Why Withdrawal of Life-Support for PVS Patients Is Not a FamilyDecision, 19 LAW, MED. & HEALTH CARE 73 (1991); Norman Cantor, The Permanently UnconsciousPatient, Non-Feeding and Euthanasia, 15 AM. J. LAW & MED. 381 (1989); Dresser & Robertson, supranote 19.29. The uncertainty is due in part to the fact that "the determination of the presence of terminalillness is itself a question that involves an assessment of risk and a balancing of the benefits and burdensof treatment that might reduce that risk." Sandra H. Johnson, Sequential Domination, Autonomy andLiving Wills, 9 W. NEW ENG. L. REV. 113, 126 (1987).30. PRESIDENT'S COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE ANDBIOMEDICAL AND BEHAVIORAL RESEARCH, DECIDING TO FORGO LIFE-SUSTAINING TREATMENT: AREPORT ON THE ETHICAL, MEDICAL, AND LEGAL ISSUES IN TREATMENT DECISIONS 18 (1983)[hereinafter PRESIDENT'S COMMISSION].31. See Gregory Gelfand, Living Will Statutes: The First Decade, 1987 Wis. L. REv. 737, 741 n.9& 744 n.17 (citing 16 living will statutes with "imminent death" requirement).[Vol. 56: No. 3HeinOnline  -- 56 Law & Contemp. Probs. 258 1993Page 255: Summer 1993] DEFINING THE RIGHT TO DIEthat death will occur within a "relatively short time., 32 Both definitions raiseinterpretive questions, however, and would not provide the certainty thatLindgren seeks.33An all-or-nothing rule for patients in extreme pain should also be rejected.Pain can usually be controlled through medications. Even without medications,the alleviation of pain is a concern in only a minority of cases.' It would seeminappropriate to mandate termination of treatment for a symptom that may beassociated with inadequate care.3 5The cases on termination of treatment are often ambiguous, conflicting, andeach new opinion typically raises more questions than it answers. Although thecases are subject to criticism, slotting patients into arbitrary categories and thenpresuming that they would want treatment withheld or withdrawn is an approachfraught with peril. Lindgren's proposal is attractive because it gives theappearance of being a simple solution. But in this area of the law, there can beno simple solutions.32. See, e.g., UNIFORM RIGHTS OF THE TERMINALLY ILL ACT § 1(9) (1989), 9B U.L.A. 98 (1992Supp.).33. "This [relatively short time] definition gives to the physician authority to answer a question thatis not entirely a matter of professional judgment. An individual's evaluation of a period of time as'short' depends on the goals and values of that individual." Johnson, supra note 29, at 125-26. See alsoJoanne Lynn, Why I Don't Have a Living Will, 19 LAW, MED. & HEALTH CARE 101 (1991).34. See generally PRESIDENT'S COMMISSION, supra note 30, at 278-86.35. For example, in one recent study, all of the patients with bed or pressure sores were found tobe severely malnourished. Gayle D. Pinchcofsky-Devin & Mitchell V. Kaminski, Jr., Correlation ofPressure Sores and Nutritional Status, 34 J. AM. GERIATRICS Soc'Y 435 (1986).HeinOnline  -- 56 Law & Contemp. Probs. 259 1993HeinOnline  -- 56 Law & Contemp. Probs. 260 1993

Defining the Right to Die

Duke Law Scholarship Repository

COMMENTDEFINING THE RIGHT TO DIEDAVID M. ENGLISH*Many die too late, and few die too early. The doctrine still soundsstrange: "Die at the right time!"1Although Friedrich Nietzsche was not noted for his views on medical ethics,the above quotation captures the essence of James Lindgren's article.2 Lindgrenposits that the recent O'Connor' and Cruzan4 decisions signal a shift in the lawon the withdrawal or withholding of treatment. He concludes that therequirement set forth in those cases-that an individual must have clearly andconvincingly expressed his or her wishes before treatment can be terminat-ed--errs unduly on the side of life. Basing his conclusion primarily onpreferences revealed by public opinion polls, he contends that a better rulewould be to presume, subject to proof otherwise, that an individual desires deathwhen the individual falls into one or more of fourteen specified categories.5Lindgren's arguments have considerable appeal. As his excellent compilationof polls reveal, a substantial majority of individuals would prefer that lifesupports be withdrawn in the event of a terminal illness or irreversible coma.Yet, only a tiny minority have executed an advance directive with regard to theirfuture care,6 and a majority have not otherwise made their views known.7Lindgren overstates his case, however. His conclusion that O'Connor andCruzan represent a change in direction is incorrect. Furthermore, whilepresumed intent should play a role in the formulation of a rule on thetermination of treatment, it should not be made the exclusive test.Copyright © 1993 by Law and Contemporary Problems* Professor of Law, University of South Dakota; Co-Reporter, Uniform Healthcare Decisions Act;Chair, Committee on Healthcare Decisions, ABA Section of Real Property, Probate and Trust Law.1. Friedrich Nietzsche, Thus Spoke Zarathustra: First Part, in THE PORTABLE NIETZSCHE 183(Walter Kaufmann ed., 1954).2. James Lindgren, Death By Default, 56 LAW & CONTEMP. PROBS. 185 (Summer 1993).3. In re Westchester County Medical Center on behalf of O'Connor, 531 N.E.2d 607 (N.Y. 1988).4. Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988), affid sub nom Cruzan v. Director, Mo. Dept.of Health, 497 U.S. 261 (1990).5. For the categories, see Lindgren, supra note 2, at 228-29.6. The results of a recent North Carolina survey are striking. Of 75 nursing home residentsinterviewed, 65 expressed a desire to have treatment withdrawn under at least some circumstances, butnone had executed a living will. Elizabeth R. Gamble, Penelope J. McDonald & Peter R. Lichstein,Knowledge, Attitudes, and Behavior of Elderly Persons Regarding Living Wills, 151 ARCHIVES INTERNALMED. 277 (1991).7. The results of a recent New York nursing home survey are similarly striking. Of 103 residentsinterviewed, 62 had not discussed their feelings about future care with anyone. Jiska Cohen-Mansfieldet al., The Decision to Execute a Durable Power of Attorney for Health Care and Preferences Regardingthe Utilization of Life-Sustaining Treatments in Nursing Home Residents, 151 ARCHIVES INTERNAL MED.289, 291 (1991).LAW AND CONTEMPORARY PROBLEMS [Vol. 56: No. 3Although Lindgren states that "[t]here are almost as many appellateapproaches to withdrawing life-sustaining treatment as there are appellatecases, ' in reality there are only two main approaches. Cruzan and O'Connorrepresent the extreme. Other courts have not been so restrictive. Like Cruzanand O'Connor, they recognize clear and convincing evidence of an individual'sprior express wishes as a standard, but, absent such evidence, treatment also maybe withheld or withdrawn under either a substituted judgment9 or best intereststest.1° Furthermore, since the Supreme Court's decision in Cruzan, there islittle evidence of a retreat from this more liberal approach. Florida" andIllinois 2 have reconfirmed their approval of the substituted judgment test, andIndiana has allowed the withdrawal of treatment from an individual who neverhad the capacity to express her views on the subject. 3Despite the liberality of a majority of the courts, one cannot conclude thatthe results are totally satisfactory. The express wishes standard, as applied, hasbeen too restrictive. Patients who have met this standard have generally madetheir views known only following the onset of a terminal illness, 4 or undercircumstances where their professional training and background added extracredibility to their statements.1 5 Statements made without such a clear focus oradded authority have generally been held insufficient.168. Lindgren, supra note 2, at 188.9. The substituted judgment test requires that the surrogate decisionmaker attempt to ascertainthe decision that the patient would have made had the patient been competent to decide.10. For a comprehensive discussion of the judicially created standards for the withdrawal orwithholding of treatment, see ALAN MEISEL, THE RIGHT TO DIE § 9.1-.35 (1989 & 1992 Supp.) Thereare variations, to be sure. Florida, for example, recognizes substituted judgment, but has rejected a bestinterests approach. See In re Browning, 543 So. 2d 258, 273 (Fla. Dist. Ct. App. 1989), affd, 568 So. 2d4 (Fla. 1990). New Jersey has come up with its own formulation for conscious individuals who will diewithin a year or less. Treatment may be withheld or withdrawn under either a "subjective," "limited-objective," or "objective" test. The subjective test is the same as express wishes, however, and theobjective is the same as best interests, at least as applied in some states. Only the limited-objective teststakes out new ground. While substituted judgment is the primary criteria, treatment may only bewithheld or withdrawn if the burdens of treatment markedly outweigh the benefits. See In re Conroy,486 A.2d 1209 (N.J. 1985).11. In In re Browning, 568 So. 2d at 17, the court approved the enforcement of a living will. Whilea living will might be said to be clear and convincing evidence of an individual's express wishes, the courtapproved the withdrawal of treatment pursuant to a substituted judgment standard.12. In re Estate of Greenspan, 558 N.E.2d 1194 (I11. 1990). The importance of Estate of Greenspan,however, is undercut somewhat by the fact that it was decided only 14 days after the Supreme Court'sdecision in Cruzan and failed to cite the Supreme Court's opinion.13. In re Lawrance, 579 N.E.2d 32 (Ind. 1991). Lawrance is especially significant because it is thefirst Indiana appellate court case to address termination of treatment.14. See Couture v. Couture, 549 N.E.2d 571, 576 (Ohio Ct. App. 1989); Leach v. Akron GeneralMedical Center, 426 N.E.2d 809, 815 (Ohio C.P. 1980).15. See In re Eichner, 420 N.E.2d 64 (N.Y. 1981) (member of religious order expressed views onuse of respirator following seminar on Quinlan and later reiterated views immediately prior to surgery);McConnell v. Beverly Enterprises-Connecticut, Inc., 553 A.2d 596 (Conn. 1989) (head nurse and managerof emergency room repeatedly told family and co-workers that she did not want to be kept alive byartificial means, including by a feeding tube).16. See Cruzan, 760 S.W.2d at 411,424; In re Jobes, 529 A.2d 434,443 (N.J. 1987); In re O'Connor,531 N.E.2d at 613. Maine is the exception. See In re Swan, 569 A.2d 1202 (Me. 1990); In re Gardner,534 A.2d 947 (Me. 1987).Page 255: Summer 1993] DEFINING THE RIGHT TO DIESubstituted judgment has not fared much better. It has been inappropriatelyapplied to infants and to never-competent adults, 7 whose personal values arepurely speculative. There is no agreement on the relevant factors. 8 Conse-quently, it provides little guidance on how to infer the patient's choice.' 9Furthermore, the limited number of empirical studies raise questions as to theaccuracy of the surrogate decisionmakers' predictions.2The best interests test has played a clearly subordinate role. No consensusexists as to what is meant by "best interests," but there are some emergingtrends. One approach has been to balance the burdens of treatment against itsexpected benefits, although that has proven unworkable when applied topermanently unconscious patients.21 The test has been applied to require thata guardian follow his or her own conception of the ward's best interests,following consideration of all available information, including the ward's priorstatements.22 It has been stated that best interests should be based on societalnorms,23 or should reflect the decision of a hypothetical reasonable person.24Lindgren would reverse the present system. Instead of requiring a showingthat treatment should be discontinued under an express wishes, substitutedjudgment, or best interests theory, he lists fourteen situations where a presump-tion of nontreatment would apply,25 although, for purposes of the presentdiscussion, they will be reduced to four:17. See In re Barry, 445 So. 2d 365 (Fla. Dist. Ct. App. 1984) (infant); Custody of a Minor, 434N.E.2d 601 (Mass. 1982) (infant); Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d417 (Mass. 1977) (never-competent adult).18. Saikewicz, 370 N.E.2d at 432, which first adopted the test in a termination of treatment context,listed five factors. Alan Meisel, from his review of the case law, has uncovered 16 more. MEISEL, supranote 10, § 9.13. Judge Hancock of the New York Court of Appeals has opined that "no exhaustive listcan be set forth." O'Connor, 531 N.E.2d at 617 (Hancock, J., concurring).19. This argument has been most forcefully made in Rebecca S. Dresser & John A. Robertson,Quality of Life and Non-Treatment Decisions for Incompetent Patients: A Critique of the OrthodoxApproach, 17 LAW, MED. & HEALTH CARE 234 (1989).20. See Richard F. Uhlmann et al., Physicians' and Spouses' Predictions of Elderly Patients'Resuscitation Preferences, 43 J. GERONTOLOGY Ml15 (1988) (spouses significantly overestimated patients'preferences in three of six illness scenarios); Nancy R. Zweibel & Christine K. Cassel, Treatment Choicesat the End of Life: A Comparison of Decisions By Older Patients and their Physician-Selected Proxies,29 GERONTOLOGIST 615, 618 table 2 (1989) (proportion of instances where patient wanted the oppositeof what their proxies predicted ranged from 24% for tube feeding to 50% for chemotherapy). But seeMarion Danis et al., Patients' and Families' Preferences for Medical Intensive Care, 260 JAMA 797, 799(1988) ("[f]amilies' preferences were similar to those of surviving patients").21. The benefits versus burdens approach was first applied in Barber v. Superior Court, 195 Cal.Rptr. 484 (Ct. App. 1983). The principal burdens considered by the courts include pain and indignity.The principal benefit is continued quality of life. See MEISEL, supra note 10, §§ 9.27-.32. Quality of life,however, was rejected as a factor in the leading benefits versus burdens case. In re Conroy, 486 A.2d1209 (1985). The sole burden that the court was willing to consider was "recurring, unavoidable andsevere pain," id at 1232. The court later found it impossible to apply this standard when it waspresented with two cases involving patients in persistent vegetative states. See In re Jobes, 529 A.2d 434(N.J. 1987); In re Peter, 529 A.2d 419 (NJ. 1987).22. In re Drabick, 245 Cal. Rptr. 840 (Ct. App. 1988).23. Foody v. Manchester Memorial Hosp., 482 A.2d 713, 720-21 (Conn. 1984).24. HASTINGS CENTER, GUIDELINES ON THE TERMINATION OF LiFE-SUSTAINING TREATMENT ANDTHE CARE OF THE DYING 28-29 (1987).25. Lindgren, supra note 2, at 228-29.LAW AND CONTEMPORARY PROBLEMS(1) permanently unconscious patients;(2) terminally ill but conscious patients;(3) patients suffering a great deal of physical pain; and(4) patients with an illness that makes them totally dependent on afamily member or other person for their care.Lindgren recognizes that polls have their limitations, and nowhere are thoselimitations more obvious than with respect to category (4). Several millionindividuals would currently appear to fit within that category. It might includea sizeable portion of individuals with development disabilities, a substantialminority, if not a majority of the elderly nursing home population, and asignificant number of the elderly who are cared for at home.26Lindgren stands on far more solid ground when it comes to category (1). Infact, if O'Connor and Cruzan are regarded as aberrations, Lindgren may havealready won the war. Although the theories by which they reach their result mayvary, the courts have not been hesitant to authorize withdrawal of treatmentfrom permanently unconscious patients. 27 A growing body of commentaryargues for the very presumption that Lindgren seeks. 8 Nontreatment appearsto be becoming the norm.The more difficult questions are encountered when it comes to categories (2)and (3). Poll data may suggest that terminally ill but conscious patients wouldwant treatment terminated, but the reliability of those polls as a predictor forpublic policy is open to question. There is no agreement on what is meant bya "terminal illness., 29  Furthermore, the average time between the onset of afinal illness and death is twenty-nine months.3 ° Is Lindgren suggesting that alltreatment be stopped upon the first diagnosis? Perhaps what he intends is thattreatment should be terminated if the patient has a "terminal illness" as definedin most living will statutes, which require either that death be "imminent, 31 or26. Approximately 1.5 million elderly Americans reside in nursing homes. More than 70% of themare unable to perform three or more activities deemed essential for daily living, and a substantialmajority have one or more major psychiatric disorders. In 1985, over 60% of elderly with three or morefunctional impairments did not reside in nursing homes. See David M. English, The Rights of NursingHome Patients, TR. & EST., July 1991, at 28.27. Alan Meisel has catalogued 33 cases in which the courts have described the patient as being ineither a coma or persistent vegetative state. MEISEL, supra note 10, § 5.20. In only two of thosedecisions was there a final denial by the court of a request to terminate treatment.28. See, e.g., Charles H. Baron, Why Withdrawal of Life-Support for PVS Patients Is Not a FamilyDecision, 19 LAW, MED. & HEALTH CARE 73 (1991); Norman Cantor, The Permanently UnconsciousPatient, Non-Feeding and Euthanasia, 15 AM. J. LAW & MED. 381 (1989); Dresser & Robertson, supranote 19.29. The uncertainty is due in part to the fact that "the determination of the presence of terminalillness is itself a question that involves an assessment of risk and a balancing of the benefits and burdensof treatment that might reduce that risk." Sandra H. Johnson, Sequential Domination, Autonomy andLiving Wills, 9 W. NEW ENG. L. REV. 113, 126 (1987).30. PRESIDENT'S COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE ANDBIOMEDICAL AND BEHAVIORAL RESEARCH, DECIDING TO FORGO LIFE-SUSTAINING TREATMENT: AREPORT ON THE ETHICAL, MEDICAL, AND LEGAL ISSUES IN TREATMENT DECISIONS 18 (1983)[hereinafter PRESIDENT'S COMMISSION].31. See Gregory Gelfand, Living Will Statutes: The First Decade, 1987 Wis. L. REv. 737, 741 n.9& 744 n.17 (citing 16 living will statutes with "imminent death" requirement).[Vol. 56: No. 3Page 255: Summer 1993] DEFINING THE RIGHT TO DIEthat death will occur within a "relatively short time., 32 Both definitions raiseinterpretive questions, however, and would not provide the certainty thatLindgren seeks.33An all-or-nothing rule for patients in extreme pain should also be rejected.Pain can usually be controlled through medications. Even without medications,the alleviation of pain is a concern in only a minority of cases.' It would seeminappropriate to mandate termination of treatment for a symptom that may beassociated with inadequate care.3 5The cases on termination of treatment are often ambiguous, conflicting, andeach new opinion typically raises more questions than it answers. Although thecases are subject to criticism, slotting patients into arbitrary categories and thenpresuming that they would want treatment withheld or withdrawn is an approachfraught with peril. Lindgren's proposal is attractive because it gives theappearance of being a simple solution. But in this area of the law, there can beno simple solutions.32. See, e.g., UNIFORM RIGHTS OF THE TERMINALLY ILL ACT § 1(9) (1989), 9B U.L.A. 98 (1992Supp.).33. "This [relatively short time] definition gives to the physician authority to answer a question thatis not entirely a matter of professional judgment. An individual's evaluation of a period of time as'short' depends on the goals and values of that individual." Johnson, supra note 29, at 125-26. See alsoJoanne Lynn, Why I Don't Have a Living Will, 19 LAW, MED. & HEALTH CARE 101 (1991).34. See generally PRESIDENT'S COMMISSION, supra note 30, at 278-86.35. For example, in one recent study, all of the patients with bed or pressure sores were found tobe severely malnourished. Gayle D. Pinchcofsky-Devin & Mitchell V. Kaminski, Jr., Correlation ofPressure Sores and Nutritional Status, 34 J. AM. GERIATRICS Soc'Y 435 (1986).

bepress Legal Repository

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4200&amp;context=lcp

Defining the Right to Die

Abstract

Similar works

Full text

Available Versions

University of Missouri School of Law

Duke Law Scholarship Repository

bepress Legal Repository

bepress Legal Repository