For whom the Bell Tolls: the Emerging Decision-Makers for Life-Support Systems in Choices of who Shall Live and who Shall Die

Hamilton, Edith : Mythology. Boston: Little, Brown and Company, 1942, pp 15-18, 42-52.

In the Matter of Karen Quinlan, 137 N.J. Super. 227, 378 A. 2d 801; modified and remanded, 70 N.J. 10 (1976).

In the Matter of Claire C. Conroy, 98 N.J. 321, 486 A. 2d 1209 (1985).

In the Matter of Karen Quinlan, ibid., supra, 70 N.J. 10 at 55.

Superintendent of Belchertown v. Saikewicz, 373 Mass. 728, 370 N.E. 2d 417 (1977). But see: In the Matter of Shirley Dinnerstein, 6 Mass. App. 466, 380 N.E. 2d 134 (1978) and In the Matter of Earle Spring, 380 Mass. 629, 405 N.E. 2d 115 (1980).

In the Matter of Claire C. Conroy, ibid., supra.

See Jobes v. Lincoln Park Nursing Home, 210 N.J. Super. 543 (Superior Court of N.J., Chancery Div., 1986).

Specific American decisions on court involvement are discussed infra.

Acknowledgment of and appreciation for the generous assistance to the author by professionals from foreign lands as to national practices are gratefully expressed. These correspondents include Prof. Koichi Bai, Faculty of Law, Tokyo Metropolitan University, Ho-Gakubu, Tokyo Toritsu Daigaku; Prof. Dr. R. Dierkens, University of Ghent, Belgium, Secretary General of the World Congress on Medical Law; Prof. Michael Lockwood, One Wellington Square, Oxford University ; Dr. C. D. Naegeli-McGuinness, M.D., M.A., B.Sc. (Paris), Hulse Hill, London, Anthropos Research Institute, Herisau, Switzerland; Dr. Albert Senn, Director, Surgical Clinic, University of Bern, Switzerland.

Naegeli-McGuinness, C. D., M.D., London.

Ibid., supra.

Professor Lockwood emphasizes there is no requirement in the United Kingdom for an electroencephalogram or a test for spinal reflexes.

Pallis, Christopher : The ABC of Brain-stem Death. London: British Medical Association.

In an article entitled "In Hungary the Old Medical Ethics Meets the New," by Bela Blasszauer, the author, by way of introduction, presents himself as one of the very few people in Hungary who deals with moral dilemmas in that country. Hastings Center Report (June) 1986; 16 (3):25. Only now are ethics committees being formed at the local and national levels to begin seriously the systematic teaching of moral ethics. The author points out that only a few regional and local research committees exist in this amorphous field in all of Hungary, p 27.

Recent legislation in Holland presents a totally different set of perplexities. The question of "who shall live and who shall die," reports Dr. Naegeli-McGuinness, has been taken out of the hands of the Hospital Management Committee, family members, clergy, ethicists, and others and allocated to two hospital doctors involved in a particular case. As an executive of the British Society of Clinical Psychiatrists, Dr. Naegeli-McGuinness views this recent development as disquieting.

Professor Koichi Bai, Faculty of Law, Tokyo Metropolitan University.

Anderson, Alun : Japanese ethics. Nature 318:19-26 (December), 1985.

Ibid., supra.

Weissburg, Carl , Hart, Jay N : FAH Review (Federation of American Hospitals) 17 (1):94 (Jan.-Feb.), 1984. This is an excellent short summary on the subject of court intervention; unfortunately, the flux in decisions was not conducive to an updated report from this source.

In the Matter of Earle Spring, ibid., supra. Compare: Superintendent of Belchertown v. Saikewicz, ibid., supra, and In the Matter of Shirley Dinnerstein, ibid., supra.

In the Matter of Claire C. Conroy, ibid., supra.

In the Matter of Karen Quinlan, ibid., supra.

For an enlightening view on the committee composition, the roles of physicians and ethicists, the impact of their decisions, and the concepts of paternalism and shared responsibilities, see The Wall Street Journal 209 (45):1, March 6, 1987.

A series of balanced articles entitled "Ethics Committees: How Are They Doing?" appears in Hastings Center Report (June 1986); 16 (3):9 et seq.:

Ethics committees today are considered at least familiar, if not commonplace. An assumed definition holds them to be "a multi-disciplinary group of health care professionals within a health care institution that has been specifically established to address the ethical dilemmas that occur within the institution," (p 9). They are considered more solidly established than in the past and have achieved status as permanent standing committees in the hospital medical staff structure.

Their principal activities are education, policy development, and case consultation. Committee members believe physicians generally make sound decisions but need a broader forum for discussion and for support.

Questions have arisen about how the courts should consider the committee determination, whether they should be rigidly bound by it or simply defer to it. One view is that "Ethics committee determinations should be admitted into evidence and then evaluated by the court on a case-by-case basis," (p 14).

The personae of the committees are not without their critics. Dr. Mark Siegler, a physician and professor of medicine, in an article entitled "Ethics Committees: Decisions By Bureaucracy," p 22, is concerned that the committee participants may be an unmanageable collection of noninvolved professionals and moral "experts" including other physicians, nurses, lawyers, hospital administrators, ethicists, clergy, community representatives, and patient advocates.

Most troubling, he finds, is that they may remove or at least attenuate the decision-making authority of the physician who is responsible — medically, morally and legally — for the patient's care. He would institute in place of ethics committees the formation of many small advisory groups (p 23). In a word, he suggests a drastic watering down of ethics or prognosis committees.

Source material may be found in President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 23 (1983).

The meticulous judicial opinions may also prove valuable in Matter of Conroy, 98 N.J. 321 (N.J. Supreme Court, 1985). Both the majority opinion and the one concurring and dissenting opinion are noteworthy. The peculiar vulnerability of the elderly nursing home population is treated with perspicacity. For our purposes, the moving party in Conroy was a nephew who could reap financial gain through his wish to have the nasogastric feeding tube removed, but it was recognized he had no ulterior motive; in In the Matter of Beverly Requena, 213 N.J. Super. 443 (Superior Court of N.J., Appellate Div., Oct. 1986) and 213 N.J. Super. 475 (Superior Court of N.J., Chancery Div., Sept. 1986), the husband and then the hospital were respectively the applicants; in In Re Visbeck, 210 N.J. Super. 527 (Superior Court of N.J., Chancery Div., 1986), the movant was a hospital.

For protective statutes for the institutionalized elderly, see N.J.S.A. 30:13-1 et seq. and N.J.S.A. 52:27G-1 et seq. providing for ombudsman with investigatory, monitoring, and other powers, Matter of Conroy, 98 N.J. 321 at 378-383.