My thinking in this area has been significantly influenced by John Hardwig's work. He asserts that there is a moral obligation in medical decision-making to consider the interests of all those close to the patient, and that patients have a moral obligation to try to protect the lives of their families from the effects of their illness. Hardwig, “What About the Family?” March/April Hastings Center Rep. 5, 6 (1990).
2.
A recent study found that this position is widely held by both medical ethicists and legal scholars. President's Commission for the Study of Ethical Problems in Medicine and Biomedicine and Behavioral Research, Deciding to Forego Life-Sustaining Treatment: A Report on the Ethical, Medical and Legislative Issues in Treatment Decisions (1983) (hereinafter referred to as President's Commission).
3.
Areen, “The Legal Status of Consent Obtained from Families of Adult Patients to Withhold or Withdraw Treatment,” 258 JAMA 229 at 230 (1987).
4.
A shift in the presumption of who establishes the status quo entails a parallel shift in who bears the burden of proof to justify change in the status quo. Rhoden, Litigating Life and Death, 102Harvard L. Rev. 375, 379 (1988).
5.
Rhoden provides a cogent discussion about multiple, mixed medical motives, in addition to the technological imperative, underlying the presumption of continuing treatment that helps explain why medical recommendations may differ significantly from family preferences. Litigating Life and Death, 420–29.
6.
As one philosopher observes, we are born into a family. The family is the first society we know. Baier, “The Need for More Justice,”13 (Suppl.)Can. J. Philos.41, 55 (1987). Therefore, many of the deepest “individual” values we hold probably were initially inculcated through family life.
7.
In addition to the individual family being in the best position to decide for the patient, the family as a social institution is the logical choice as a decision-making unit because of the historical role of the family and the deference paid to it by society. Litigating Life and Death, supra note 4, at 437–439.
8.
The question of the cost of care for third party payors has been raised frequently. However, the question about the extent to which the family should legitimately be asked to sacrifice individual and collective interests so that the patient can have the “best” care possible is one that has largely been avoided because of the medical presumption that patients are due optimal treatment. What About the Family? supra note 1, at 5.
9.
Jersey Shore Medical Center v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003 (1980).
10.
Id. at 152, 417 A.2d 1010–11.
11.
The only way a husband, like Mr. Baum, can protect his wife from this potential liability would be to make prior arrangements to protect her financially, such as purchasing more health insurance. Alternatively, he could give her power of attorney for his health care so that she could take account of both of their needs in making decisions about his health care should he become incompetent in the future. In either case, Mr. Baum would have to anticipate his own potential incompetence and make specific, written arrangements to guard against financial and legal vulnerabilities that his incompetence might bring to his wife in the future.
12.
Litigating Life and Death, supra note 4, 379, 420–429
13.
Hardwig provides an insightful assessment of various explanations about why medical decision-making centers on the patient's interests to the exclusion of all other factors—a focus that he finds anomalous to the way other major life decisions are made. He concludes that neither the “benevolence model” nor the “patient autonomy model” of medical decisionmaking adequately justifies this focus because they are both, at heart, “isolating and destructive,” forcing us away from the interconnectness we value in family life. What About the Family? supra note 1, 6–7.
14.
Philosophers Onora O'Neill and William Ruddick observe: “Philosophers have written very little about families…. within a tradition of writing that has been critical and rigorous in its discussion of the justification of political institutions and of individual decisions, we find an often reflective acceptance of relations between the sexes and the generations. There is a dearth of arguments which seek either to justify or to criticize institutional forms of family life, or the principles which individuals invoke and the decisions they make when forming, continuing or leaving their families.” O'NeillO.RuddickW (eds.), Having Children 1 (1979).
15.
Furthermore, individuals can override the presumption of family decision-making through legal devices such as durable power of attorney and living wills. These devices allow the individual to control future decision-making based on individual preferences regardless of what the family's preferences might be once the patient becomes incompetent. Who Decides for Incompetent Patients? supra note 2, 1231.
16.
Hacker, “Farewell to the Family?”20N.Y. Rev. of Books37–42, Mar. 18, 1982.
17.
The role of the courts may be best limited to deciding who should serve as a surrogate when no family exists and when decisions made by surrogates are not reasonably consistent with the patient's best interests. Who Decides for Incompetent Patients? supra note 2, 1231.
18.
Many medical and legal writers echo the admonition of the New Jersey Supreme Court: “Courts are not the proper place to resolve the agonizing personal problems that underlie these cases. Our legal system cannot replace the more intimate struggle that must be borne by the patient, those caring for the patient, and those who care about the patient.” In re Jobes, 108 N.J. 394, 428, 529 A.2d 434, 451 (1987).
19.
Davis, “Right-to-Die Ruling Curtails Individual Liberty” (letter), N.Y. Times, July 12, 1990, at A20, col. 3.
20.
Cruzan v. Director, Missouri Dep't. of Health, 110 S. Ct. 2841, 2875 n.21, (1990) (BrennanJ., dissenting): “Surveys show that the overwhelming majority of Americans have not executed such written instructions, “citing Emmanuel & Emmanuel, “The Medical Care Directive: A New Comprehensive Advance Care Document,”261J. Am. Med. Assn.3288 (1989) (only 9% of Americans execute advance directives about how they would wish treatment decisions to be handled if they became incompetent); American Medical Association, Surveys of Physician and Public Opinion on Health Care Issues29–30 (1988) (only 15% of those surveyed had executed living wills); 2President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions241–242 (1982) (23% of those surveyed said that they had put treatment decisions in writing).
21.
Cruzan, 110 S. Ct. at 2875 (BrennanJ., dissenting): “When a person tells family or close friends that she does not want her life sustained artificially, she is express[ing] her wishes in the only terms familiar to her, and …as clearly as a lay person should be asked to express them. To require more is unrealistic, and for all practical purposes, it precludes the rights of patients to forego life-sustaining treatment,” citing In re O'Connor, 72 N.Y.2d 517, 551, 531 N.E. 2d 607, 626 (1988) (SimonsJ., dissenting).
22.
“[W]e conclude that a State may apply a clear and convincing evidence standard in procedures where a guardian seeks to discontinue nutrition and hydration of a person diagnosed in a persistent vegetative state.”Cruzan, 110 S. Ct. at 2854.
23.
Hardwig provides a poignant personal example where a patient was able to make his own medical decision to aid his family: his grandfather committed suicide “as a final gift to his wife” after his heart attack because he had more than adequate life insurance but insufficient health insurance. “What About the Family?” supra note 1, 6. Had Hardwig's grandfather been mentally incompetent following his heart attack and left no “clear and convincing evidence” of his wishes, continued treatment would have been provided under Cruzan and one of his deepest wishes for himself (which was based on his love of his wife) would have been denied.
