Quality of Life and Non-Treatment Decisions for Incompetent Patients: A Critique of the Orthodox Approach

In re Quinlan , 70 N.J. 10, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976).

Although cast in the text in terms of balancing competing interests, the question may also be viewed as one of rights, e.g., do such patients have a right to continued life?

Sup't of Belchertown v. Saikewicz, 373 Mass. 728; 370 N.E.2d 417 (1977).

Eichner v. Dillon, 52 N.Y.2d 363, 420 N.E.2nd 64 (1984).

Barber v. Superior Court , 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983).

In re Conroy , 98 N.J. 321, 486 A.2d 1209 (1985).

Brophy v. New England Sinai Hospital, Inc. , 398 Mass, 417, 497 N.E.2d 626 (1986).

In re Jobes , 108 N.J. 394, 529 A.2d 434 (1987).

Other formulations of the test have also been made. For example, the Texas Natural Death Act asks the attending physician and legal guardian, in the absence of an explicit directive, to ‘make a treatment decision…based on knowledge of what the patient would desire, if known…’ Vernon's Tex. Stat. Annot. Title 71, Art. 4590h 4C(a).

70 N.J. 10, 41; 355 A.2d 646,664.

Note 8, supra.

President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment (1983).

Hastings Center, Guidelines on the Termination of Life Sustaining Treatment and the Care of the Dying (1987).

Society for the Right to Die, Handbook of Living Will Laws (1987).

See, e.g., Ruark, Raffin, & the Stanford University Medical Center Committee on Ethics, “Initiating and Withdrawing Life Support,” 318 New England Journal of Medicine 25 (1988).

See note 2 supra.

In re Guardianship of Roe , 421 N.E.2d 40 (Mass. 1981).

In re Moe , 385 Mass. 555 (1982).

Strunk v. Strunk , 445 S.W.2d 145 (Ky. 1969); Robertson , “Incompetent Organ Donors and the Substituted Judgment Doctrine,” 76 Columbia Law Review 48–78 (1976).

There is the “appearance” of consistency with autonomy because it is not clear that autonomy does require that all directions concerning the future be followed. For example, many persons in favor of prior directives for withholding medical treatment refuse to enforce prior directives allocating responsibility for childrearing, as the Baby M case has shown.

For a contrasting view that argues that family discretion has not been sufficiently honored, see Rhoden Nancy , “Litigating Life and Death,” 102 Harvard Law Review 375 (1988). Rhoden also criticizes the analysis adopted in nontreatment cases, but her proposal for remedying the situation differs from ours.

Beauchamp T. Childress J. , Principles of Biomedical Ethics 137–41 (rev. ed., 1983).

Robertson J. A. , The Rights of the Critically Ill 51 (1983); Robertson , “Incompetent Organ Donors and the Substituted Judgment Doctrine,” 76 Columbia Law Review 48–78 (1976).

Parfit D. , Reasons and Persons 302–06 (1984).

Feinberg J. , Harm to Self 81–87 (1986).

Competent individuals generally retain the opportunity to alter their choices to accommodate their altered interests to the extent a person's prior choices concerning career, health, residence, and promises to others permit them to do so. Incompetent persons should also be able to free themselves from prior choices when their current interests require it, and others have not changed their position in reliance on their past directives.

The need for advance certainty about future medical procedures through the device of an enforcible prior directive is important in an environment of overzealous treatment that cannot otherwise be avoided. But the great progress that has been made in recognizing the right to have treatment withheld, especially in situations of terminal illness, lessens the need for the living will, since treatment may often be withheld regardless of such directives. In a legal climate evolving even further toward acceptance of nontreatment, there is even less need to run the risk of conflict between prior directive and current interests, since the goal of avoiding excessive treatment may be achieved anyway.

Evans v. Bellevue Hospital, New York Law Journal (July 28, 1987), p. 11.

For other cases presenting similar dilemmas, see Schneiderman Spragg , Ethical Decisions in Discontinuing Mechanical Ventilation, 318 New England Journal of Medicine 984 (1988); Eisendrath Jonsen , “The Living Will: Help or Hindrance?” 249 JAMA 2054 (1983).

The question asked is so ambiguous that the risk of error, or answers determined by other interests, is very great. For example, does the question ask what the patient would have decided at a prior time when competent, what he would decide if now competent, what the incompetent person would decide if he had the ability to tell us what his interests were in the midst of his incompetency, or what a reasonable person would want done? The ambiguity is usually resolved by inferring a choice made by someone with all the interests and understanding of a competent person, thus eliminating the interests of the incompetent patient whose treatment is in question.

In re Jobes, note 8 supra.

Weber W. , “Substituted Judgement Doctrine: A Critical Analysis,” 1 Issues in Law & Medicine 131 (1985).

This phenomenon was nicely illustrated in the political context when various congressional witnesses in the IranContra fund diversion hearings argued over whether President Reagan would have approved the diversion of funds if he had known about it. But a definitive answer is, of course, impossible. Witnesses generally gave answers to that hypothetical question that justified their own conduct and views on the issue.

Cantor , “Conroy, Best Interests, and the Handling of Dying Patients,” 37 Rutgers Law Review 543 (1985).

In re Spring, 380 Mass. 629, 405 N.E.2d 115 (1980).

In re Hier , 18 Mass. App. 200, 464 N.E.2d 959, appeal denied, 392 Mass. 1102, 465 N.E.2d 261 (1964).

Annas , “Quality of Life in the Courts: Earle Spring in Fantasyland,” 10 Hastings Center Report, Aug., 1980, at 9.

Annas , “The Case of Mary Hier: When Substituted Judgment Becomes Sleight of Hand,” 14 Hastings Center Report, Aug., 1984, at 23.)

Note 7 supra.

In re Westchester County Medical Center , 72 N.Y.2nd 517, 531 N.E.2nd 607, 534 N.Y.S.2nd 886 (1988).

Harmon Cruzan v , 760 S.W.2d 408 (Mo. 1988) cert. granted, 109 S. Ct. 3240 (1989) (#88-1503).

Rhoden makes a similar criticism, but in our view insufficiently addresses the fact that undertreatment may also be a serious problem. See note 21 supra.

These arguments have implications for both legislatures and courts. Numerous states now have living will laws giving explicit legal authority to certain forms of advance treatment directives. Yet these laws typically apply only to patients diagnosed terminally ill and whose death is “imminent,” which virtually guarantees that treatment will be foregone solely when a patients' current welfare will also be served by such a decision. If efforts were made to expand the living will's scope to encompass conscious, nonterminally ill patients, the legislature would be faced with the policy trade-offs we describe. In the absence of such legislative activity, the courts adjudicating non-treatment cases must consider the potential conflicts between an incompetent patient's present welfare and prior expressed or inferred competent treatment preferences.

Dresser , “Life, Death, and Incompetent Patients: Conceptual Infirmities and Hidden Values in the Law,” 28 Arizona Law Review 373 (1986).

The current interests test that we propose also departs significantly from the traditional best interests test that has its roots in child custody disputes. The traditional best interests test would permit nontreatment only when an incompetent patient's condition is so severe that continued existence would harm the patients by either the disabilities afflicting them or the burdens of the treatment necessary to preserve life are so substantial that death would be better for them. Our approach would also allow treatment when no substantial patient interests would be served by the treatment.

Nancy Rhoden's plea, note 21 supra, to give families greater decisional authority to have treatment withheld overlooks the extent to which an “objective” current interests test, properly understood, does permit nontreatment to occur.

Rhoden , “Treatment Dilemmas for Imperiled Newborns: Why Quality of Life Counts,” 58 Southern California Law Review 1283 (1985); Arras , “Toward an Ethic of Ambiguity”, 14 Hastings Center Report, Apr., 1984, at 25.

See note 2 supra. In reaching this decision the court showed that the most rigorous reading of the substituted judgment merges with a best interests approach, since the incompetent patient, if competent and able to tell what he would want, would want whatever his current interests are to be protected, which is the outcome that would be achieved directly under the current interests test. See Robertson , note 23 supra.

In re Storar , 52 N.Y.2d 363, 420 N.E.2d 64 (1981).

Ostensibly the reason for the different outcome in the two cases is that Storar had never had the capacity to have preferences about treatment, while O'Connor once did. But as we have argued throughout, the fact of past competency should not matter to a determination of what the incompetent patient's current interests now are, since past preferences no longer are relevant to the needs of a patient whose interests have changed radically.

Note 6 supra.

Loewy , “Treatment Decisions in the Mentally Impaired,” 317 New England Journal of Medicine 1465 (1987).

See note 8 supra; McDougal v. Garber, 73 N.Y.2nd 246, 536 N.E.2nd 372, 538 N.Y.S.2nd 937 (1989); Nussbaum v. Gibstein, 73 N.Y.2nd 912, 536 N.E.2nd 618, 539 N.Y.S. 2nd 289 (1989).

See notes 44, 52 supra.

Preserving life at all costs, even in such extreme states, may be a moral or personal position that some persons adopt, but it does not follow that all persons, including families and doctors, must also adopt it. Given the reasonableness of differing views on the subject and the heterogeneity with which they are held, such a strict view should be left to individual discretion.

It is significant that the orthodox approach may exclude such patients from treatment at the behest of proxy decisionmakers, as the cases of Spring and Hier show. In both cases the courts used the substituted judgment test to find that if these patients were competent, they would have chosen not to be treated. On the other hand, the New York courts have required such a high degree of certainty of what the patient would have chosen that withdrawing treatment except when there is an explicit prior directive becomes impossible. The current interests test would reduce greatly the chance that unjustified overtreatment or undertreatment would occur.