PATERNALISM AND THE
ADULT
~1ENTALLY
COMPETENT
A PECULIAR MEDICAL ETHIC
PARTS I
& II
Dax s. Cowart
Independent Research
Professor Benson
December 1985
000f.6
Paternalism and the Mentally Competent Adult -A Peculiar Medical Ethic
Part I
Introduction
Can coercive medical treatment of a mentally competent adult
be justified? I will argue that, ordinarily, it cannot. If we
correctly perceive freedom to be a universal normative value that
is desirable to maintain as a part of society, then we should
require a clear demonstration of need before allowing this value
to be limited. The traditional medical ethic often contravenes
personal freedom and many other universal normative values as
well. At times, it is contrary to state and federal
constitutions, state and federal statutes, and the common law as
well.
I will examine the appropriateness of traditional medical
ethics by first inquiring into the desirability of personal
autonomy in general. Patient autonomy issues will then be
examined to determine if there are meaningful distinctions that
can justify the use of a standard different from that used for
personal autonomy in general. Part II will begin with a
discussion of legal issues concerning patient autonomy and
focuses primarily on the question of whether patient autonomy is
protected by the fundamental right to privacy guarantee of the
United States Constitution. Discussed last is what I believe to
be the indicated course of action. Unless otherise stated, all
discussions are in reference to a mentally competent adult, the
000~7
2
definition of which is also in controversy.
I. Personal Autonomy in General
The word "autonomy" is derived from the Greek stems for
"self" and "law." It means, literally, the having or making of
one's own laws. Its sense is one of self-rule,
self-determination, self-government, and independence.
Philosopher Joel Feinberg suggests: "Indeed, it is plausible to
suppose that the original application and denials of these
notions are to states, and that their application to individuals
is derivative, in which case personal autonomy is a political
metaphor."
1
In a lengthy discussion, he analogizes 2 personal
sovereignty to that of a nation.
2
Feinberg's concern is not
from where or the manner in which national sovereignty is
derived, but rather that it is in fact recognized that is assumed
to exist. The right of a sovereign nation to govern its own
affairs is generally not questioned.
Feinberg freely admits his inability to demonstrate that the
doctrine of sovereignty is equally applicable to individuals.
However, there are a number of implications that it is. Since
nations can exist only in the minds of men, England, France, and
the United States exist only because we think of them existing.
They cannot think,
they cannot feel, and they can have no
awareness of, nor appreciation for,
sovereignty. Thus, one who
recognizes the right to national sovereignty and who recognizes
3
national sovereignty as a desirable concept would seemingly be
required to also recognize that its ultimate reason for
desirability is that it confers autonomy on a person or persons.
By this, I mean to suggest nothing more than the idea that
bestowing sovereignty on a nation is nothing more than the
bestowing of sovereignty on a group of persons. Autonomy may be
exercised collectively, as in a democracy, an ideology of which
we generally tend to approve, or it may be exercised by only one
or only a few individuals, as in a totalitarian state, an
ideology of which we generally tend to disapprove. Whether we
agree with a nation's particular form of government or the manner
in which it chooses to govern its own affairs has little or no
relevance in terms of internationally recognized sovereignty.
Except for nations who have expansionist policies or who engage
in similar other-regarding acts that are morally difficult to
defend, a nation's sovereignty will usually not be challenged by
other sovereigns. Of course, a nation that perceives a threat to
its own sovereignty may violate the sovereignty of a threatening
nation, but that is due to a belief that the threatening nation
is engaging in other other-regarding acts, rather than a failure
to respect sovereignty.
No doubt, one can argue that a nation is collectively
recognized as sovereign, sovereign only for reasons such as
international and economic stability rather than for any ultimate
4
belief that these people should exercise any freedom of choice
over those matters that affect primarily themselves as
individuals or that affect the affairs of their nation. However,
even if the concept of recognition of sovereignty were to provide
to the world no benefit such as international stability, I
believe that any attempt of one nation to coercively govern the
affairs of another is basically repugnant to most intelligent men
and women. If Japan were able to govern Mexico better than Mexico
could govern herself, would it be appropriate for Japan to do so
and thereby impinge on Mexico's national sovereignty? Again, I
believe that most intelligent individuals would consider such an
act to be repugnant, not to mention any thoughts that Mexican
nationals might be expected to have. I believe that the usurping
of personal autonomy is equally repugnant.
Daniel Callahan and others have argued in favor of adopting
values that enhance benefits to society in a holistic sense,
thereby subordinating values that emphasize the desirability of
personal autonomy. Therefore, it appears that the Callahan school
would probably consider as other-regarding many of the acts which
John Stuart Mill would consider as self-regarding. Indeed, it is
difficult to read "Autonomy -- A Moral Good, Not a Moral
Obsession" without questioning if Callahan is actually advocating
a socialist society. He may, in fact,
believe, as the title to
his article suggests, that autonomy is a moral good.
00030
3
5
However, my perception of a Callahan society is more likened
to the regimentation of a hive of bees or a colony of ants than
one which provides the opportunity for self fulfillment and
happiness. It is not clear how Callahan would have his social
base set of values implemented in a pluralistic society or who
would make a final determination as to what set of values would
promulgate his social objectives. Is personal autonomy to be
limited by a group of intellectual elitists and, if so, how are
they to be selected? If a majority of the voting public favors
personal autonomy values, are they to be subjected to a
paternalistic veto, or does Callahan simply favor enlightenment
by re-education, i.e., persuading one to autonomously limit his
own autonomy? I believe that Callahan ignores human realities and
that a society modeled according to his social value criteria
would not be one in which many of us would care to live.
Some have said that a desire for personal autonomy is mere
selfishness and that it is in opposition to altruism and other
desirable values. 4 This attitude displays a total lack of
understanding, not only of autonomy, but of altruism as well. It
is wrong to view a desire for autonomy simply as a desire to act
in one's own interests, since we know many individuals
autonomously choose to help others. Indeed, if altruism is a
selfless concern for others, autonomy is not in opposition to
altruism but is in fact required before altruism can exist. True
6
concern for others is an autonomous state of mind, and it cannot
be paternalistically mandated or imposed on others. If the
autonomous mental state is absent, we have no altruism but simply
a tax that has been levied for the welfare of others. While at
least the potential exists that such a tax may help the needy, it
certainly does nothing to instill the value of altruism in those
who are being taxed. The notion that by limiting autonomy, we may
enhance altruism is a classic example of treating the symptom
rather than the disease.
The characterization of personal autonomy as selfishness is
also troublesome because of the assumptions that seem to be
inherent in any alternative. Autonomy can obviously not be
limited unless there is a paternalist or some other person to
restrict the exercise of free choice. The proposition that
superior results will accrue from such limitations seems to
presuppose that it is possible with at least some degree of
accuracy to select a proper ruling party who will not himself act
in a selfish manner. Perhaps this is possible, but it is my
impression that history speaks more kindly of societies that have
emphasized personal autonomy and less kindly of societies that
have restricted it.
I agree with Callahan that personal autonomy should not be
treated as a moral obsession, as I do not believe it is a value
that necessarily transcends all others. However, it does seem to
7
be very important for self fulfillment and for living a
meaningful life. In this respect, autonomy helps to ensure that
the individual is treated responsibly and fairly, since he may be
expected to choose that alternative which he perceives to be in
his own best interest. Without the freedom to choose, he must
accept whatever is selected for him regardless of its fairness or
quality. This economic principle is clearly reflected in both the
prices and quality of food and other items that are often sold in
airline terminals, coliseums, ball parks and other similar places
where options are either severely limited or simply nonexistent.
I believe that it is fair to say that most reasonable men
prefer a policy of personal autonomy over one of paternalistic
intervention as to those matters which are primarily self
regarding. If one agrees that personal autonomy is generally a
desirable value, then what parameters are proper? First, autonomy
can generally be perceived as freedom of choice over those
matters which primarily affect oneself, i.e., self regarding acts
such as killing and stealing are perceived as other regarding
acts because of their profound effects on other individuals. 1he
restriction of such other regarding acts enhance personal
autonomy in the sense that it has the effect of allowing the
protected individual to carry on in his self regarding
activities.
Admittedly, many acts that are normally considered to be
8
self regarding in nature can have a ripple effect on others in
·
S For 1ns
. t ance, a homeowner who constructs his roof
soc1ety.
of cedar shingles primarily affects himself. However, his
neighbors may be impacted by a ripple effect, because his actions
subject them to a higher risk of fire. A city ordinance
prohibiting the use of cedar shingles on the basis that their use
creates an unreasonable degree of risk to the community might
possibly be controversial as to the issue of unreasonableness,
but the principle on which the ordinance was based -- the right
of persons to be protected from the unreasonable acts of others
can be expected to produce little serious controversy.
Suppose, however, that the ordinance were passed strictly to
protect the homeowner who is using the cedar shingles. Here, one
might expect controversy not only as to the issue of
unreasonableness, but also as to the principle upon which it is
based, i.e., that of protecting the individual from his own acts.
In his writing On Liberty, John Stuart Mill makes what is
known as the moral-muscles argument. This argument consists of
(i) ([t]he explicit departure from hedonism): The
highest good for man is neither enjoyment nor passive
contentment, but rather a dynamic process of growth and
self-realization, in which uniquely human faculties -perception, judgment, discriminative feeling, powerful
human emotion, mental activity, and moral preference
are progressively perfected. (ii) These powers, like
the muscular powers, are improved only by being used
(exercised). (iii) Exercise of the moral muscles
requires constant choice-making, which in turn requires
freedom to make even foolish (self-regarding) choices,
freedom not only from legal coercion, but from the
9
tyranny of customs. (iv) Therefore, interference with
free choice hampers the development of distinctive
human propensi5ies and whose fulfillment consists of a
person's good.
Feinberg presents other arguments made by Mill and states in
reference to them that
[s]ometimes the emphasis is on the actual likelihood of
error when an outsider presumes to know an individual's
interest better than he: "[T]he strongest of all the
arguments against the interference of the public with
purely personal contact is that when it does interfere,
the odds are that it interferes wrongly, [mistakenly]
and in the wrong place." In other places the emphasis
is on the advantages of the individual over the others
in knowing his own interest: (W]ith respect to his own
feelings and circumstances, the most ordinary man or
woman has means and knowledge immeasurably 'urpassing
these that can be possessed by anyone else.
Feinberg later discusses four standard interpretations of
the right of self determination. In discussing one of them, he
states:
A third standard interpretation of the right of self
determination holds that it is entirely underivative
and morally basic as the good of self fulfillment
itself. There is no necessity on this view that free
exercise of a person's autonomy will promote his own
good, and even where self-determination is likely, on
objective evidence, to lead to the person's own harm,
others do not have a right to intervene coercively "for
his own good." By and large, a person will be able to
achieve his own good by making his own decisions, but
even where the opposite is true, others may not
intervene, for autonomy is even more important than
things and personal well being. The life that a person
threatens by his own rashness is after all his life; it
belongs to him and no one else. For that reason alone,
he must be the one to decide -- for better or worse -what is to be done with it in that private realm were
the interests of another are not directly involved.
I cannot conceal my own preference, at least initially,
10
for position (iii). As the only view consistent with
conception of personal sovereignty, it accords uniquely
with the self-perception deeply imbedded in the moral
attitudes of most people, and apparently presupposed in
many of our moral idioms, especially when used
defensively, ("my life life §o live as I please," "no
one else's business," etc.).
Also important to the issue of autonomy are distinctions
between de jure and de facto freedom.
His option to chijose was closed, even though his option
to act was open.
An alcoholic who is unable to
refuse a drink that is offered to him or a moral
individual who wished to engage in a specific act but
cannot bring himself to do so because he perceives it
as immoral are two examples. "Freedom of action, then,
is understood the way the 'unsophisticated person' in
Schopenhaver's account understands it: 'I can do what I
will: If I will to go to the left; I go to the left; if
I will to go to the right, I go to the right. This
dependf entirely on my will. Therefore, I am
0
free.'
In arguing for the principle of autonomy, Mill prefers to
rely on a rationale based on utility rather than a philosophy
based on naturalism. This is reflected in his statement: "His
voluntary choice is evidence that what he so chooses is desirable
or, at least endurable to him, and is good on the whole best
provided for by allowing him to take his own means of pursuing
it." 11 Here, Mill simply seems to be stating his belief that
the maximization of personal good bears a positive correlation to
the maximization of personal autonomy, not necessarily in every
case, but in most cases.
I do not believe that mere coincidence can account for the
striking resemblance between the autonomic philosophy expressed
11
by Mill and that of another well known British subject, Adam
Smith. Where Mill advocates free choice to maximize utility in
terMs of personal good, Smith advocates free choice to maximize
utility in the market place. The common feeling expressed by both
men is that, when an individual acts on his own volition, net
benefits will be enhanced. Neither man claims that this shared
principle of free choice will function perfectly on every
occasion. Whether it be on an individual or on a collective
basis, they only assert that such a policy will normally produce
results that are superior to a policy of intervention, regardless
of the good intentions or of the claimed expertise of the
would-be interventionist.
A useful observation can be made regarding the
interrelationships between personal autonomy and free markets as
they relate to each other and as each of them relates to a
sovereign nation. If a gravity test is used to determine
majoritarian perception of economic and autonomic desirability, I
believe that the directional flow will be the same in each case.
Therefore, if I am correct, individuals wishing to relocate could
generally be expected to move in a direction that is away from
the more restrictive sovereign nations in favor of those nations
which are less restrictive. The phenomenon of the Berlin wall and
the boat people from Vietnam both seem to suggest the validity of
such a hypothesis. I would not expect to hear a serious argument
000~
12
as to the directional flow in these two examples. However, a
determination of the motivating factors responsible for the
directional flow might possibly be questioned. As to this matter,
formal research is beyond the scope of this discussion. However,
based on both my formal and informal education, I. am convinced
that personal freedom and economic opportunity are priority
considerations for most individuals.
In contemplating the subject of autonomy during the last 12
years, I have reached a number of conclusions as to how society
generally seems to view personal autonomy, as well as some of the
distinctions society seems to make. They primarily revolve around
four principles which I refer to as (1) presumption of autonomy,
(2) sporting chance, (3) mobility, and (4) identifiable party.
Society in general seems to believe that, as to most self
regarding acts, an individual has the right to make his own
choice regardless of how foolish or dangerous the act may be, as
long as the individual has a sporting chance to survive that act,
and as long as the individual is sufficiently mobile to be able
to assert independence. I will not discuss the presumption of
autonomy other than to refer to what has already been stated.
However, if the sporting chance and mobility principles are
indeed valid, they would seem to implicitly suggest a presumption
of autonomy.
13
Sporting Chance
Regardless of what rights to autonomy are actually provided
for by law, individuals appear to display a belief that they
should be free from outside intervention as to their actions that
are primarily self-regarding. Even if this should not be true, it
could probably be said that, absent a familial, friendship, or
other special relationship, this is how the public tends to treat
autonomy in practice. However, one restriction that society does
seem to place on autonomy might be called the "sporting chance
principle." If an individual has at least a sporting chance to
survive his act, people tend not to intervene. This appears to be
true even in respect to those individuals who might consider
intervention desirable.
A situation that is analogous to respect for national
sovereignty, even where intervention might be thought of as
desirable, is the apparent lack of serious efforts to intervene
in Evil Kenevil's ill-fated attempt to jump the Snake River
Canyon. The federal government did earlier refuse him permission
to jump the Grand Canyon; however, this is more properly viewed
as a refusal to cooperate or participate rather than as an act of
intervention. A similar non-interventionist attitude seemed to
exist when Kenevil attempted to jump 14 buses following a
spectacular accident that resulted from his failure to complete a
jump involving only 13 buses. In each of the foregoing instances,
14
there was substantial risk of death or at least a substantial
risk of serious injury. I believe that, because he was perceived
as having at least a sporting chance to survive his act, no
intervention did, in fact, occur. However, if Kenevil were to
attempt a leap from the top of Sears Tower aided only by an
ordinary umbrella, active intervention would probably result.
The public's tolerance of auto racing, sky diving, and
rodeos are other exaQples of the sporting chance
philosophy.
12
But how can the public be expected to react if
a young man, 18 years old and having no experience in jumping
motorcycles, began making final preparations to
atte~pt
to junp
the Snake River Canyon? If intervention occurred, and I believe
that it probably would, the sporting chance principle seems to
provide the most plausible explanation as to why his attempt
should be treated differently from that of his predecessor.
13
However, if the same 18-year-old youth had routinely performed
during motorcycle feats since the age of 6, one might expect the
public to perceive that he had at least a sporting chance to
survive the jump and therefore not intervene.
Humorist Jerry Clower refers to this sporting chance
philosophy when he says that they never shoot a raccoon while he
is still up in the tree. Instead, they shake him out of the tree
into a pack of 'coon dogs, because this at least gives the
raccoon a sporting chance. A sportsman who will only shoot when a
15
bird is on the wing or one who believes it is unfair to spotlight
deer, questions of legality aside, provide other examples.
Close ties to the individual, especially those of familial
relationships, will often alter the sporting chance philosophy as
it relates to personal autonomy, just as it alters reactions in
many other areas, as well. However, I believe the sporting chance
principle is a valid one in that it explains much of society's
behavior and attitudes in matters involving personal autonomy.
Hobility
The sporting chance principle just discussed does not
provide carte blanche assurance of non-intervention. However,
once mobility is impaired to such an extent that dependence
attaches to the afflicted
individual~
a green light is seemingly
flashed to society's would-be interventionists. Of course, it is
the element of dependence, rather than the lack of mobility
itself, that opens the door to restrictions on autonomy.
Dependence is relevant only because it confers on the would-be
interventionist the most essential element of the paternalism
equation. That element is the power to control. Unless the
paternalist has or is perceived by the subject as having control,
the subject is free to act in whatever manner he may wish.
The great importance of mobility is made quite clear when
viewed in terms of options that may be lost when one becomes
immobilized. The option to leave an undesirable or unendurable
16
environment is completely closed unless there is another party
who is willing to assist the immobilized individual.
Communications and amenities such as food, drink, clothing, and
entertainment are available only at the will of the provider. If
the immobilized individual objects too strongly or refuses to
cooperate, he risks losing what services are being offered and
other retaliatory measures that are calculated to promote
compliance.
In short, one who is immobilized often finds himself with
few, if any, viable alternatives, in which case the provider
becomes "the only game in town." To a large degree, the rules are
determined by the discretion of the provider. He is able to
choose among total compliance, total dominance, or an
intermediary course of action. However, once mobility is lost,
autonomy that is otherwise respected, will often be disregarded
or severely curtailed. The sporting chance decision making
process has been discarded in favor of a more restrictive one,
i.e., decisions are made on the basis of what the paternalist
believes to be in the best interest of the immobilized
individual.
To some degree, the mobility principle just discussed casts
doubt on the validity of the sporting chance principle that was
discussed earlier. One could argue that, since the vitality of
the sporting chance principle seems to be limited to that time
17
when the individual is still mobile, then there is no general
approval or respect or personal autonomy. Unfortunately, there
are many instances in which such an argument has merit. The
sovereignty of nationalist individuals alike are all too often
not recognized out of a respect for sovereignty, but merely as a
function of the relative strength and power that another
sovereign is able to exercise. Such behavior would tend to
indicate that paternalistic instincts are often present, but
merely waiting on the sidelines until a more favorable balance of
power is obtained.
There are also other explanations of why intervention seems
to accompany immobilization. Illness and infirmity seem to fan
latent paternalistic emotions as a result of pity for or a desire
to help the immobilized individual. I believe that this occurs
because of a tendency by the paternalist to equate physical
disability and illness with mental incapacity to make decisions
for oneself. I am inclined to suggest that this tendency is so
strong that there almost seems to be a presumption of incapacity
in such situations, but, alas, as all true presumptions are
rebuttable, the term would probably be inaccurate if so used.
Identifiable Party
As was earlier mentioned, relationships will often alter
one's behavior and attitude regarding autonomy. Therefore, we
often act differently in situations that involve close friends or
18
relatives than we do in instances that involve total strangers.
We also tend to act differently in instances that involve what I
refer to as the identifiable party. The identifiable party
concept is a first cousin to the sporting chance principle. While
t·he sporting chance principle is concerned with the likelihood
that death or serious injury will occur, the identifiable party
concept is more concerned with a determination of which party
will ultimately die or incur serious injury. I believe that most
of us are convinced that cigarette smoking will in
~any
instances
lead to fatal lung cancer. It also seems evident that a large
percentage of society would nevertheless favor a policy of
auonomy regarding an individual's decision to smoke. Therefore,
society seems to reason that, even though cigarette smoking will
often lead to fatal lung cancer and even though little can be
said for the necessity or benefits of smoking, we should allow
individuals the autonomy to smoke, because we do not know which
individuals will die and, therefore, each individual who does
smoke has a sporting chance to survive. However, I do not believe
that it would be entirely speculative to suggest that society
would be much less tolerant of an autonomous right to smoke if
all smoking produced an absolute certainty of death.
In respect to self-regarding matters, most of us have the
autonomy to make those choices that we perceive to be in our own
best interest. But even in those instances where we choose a
19
course of action that we know not to be in our own best interest,
we still usually desire and indeed expect the freedom to make
those choices as well. Most of us will concede that junk food,
smoking, drinking, and speeding are not particularly conducive to
the maintenance of our own health and safety. Those of us who
engage in all or some of these activities probably prefer that
our freedom to do so not be restricted. As anyone who has been
exposed to constitutional law should well know, the sword that is
used to restrict personal freedom can, and does, cut both ways.
Before any of us attempt to restrict the personal autonomy of
others, we should first examine our own autonomous desires and
consider the inherent jeopardy in which they are placed when
attempting to restrict the self-regarding acts of others.
II. Medical Ethics and Paternalism
Most arguments seeking to justify medical paternalism, or at
least those of which I am aware, seem to follow two basic
strands. The dominant strand tends to concern itself with best
interests of the patient, while the other strand tends to concern
itself with best interests of society. If one is to justify
medical intervention under either of these concepts, he should
also be able to demonstrate the validity of the concept as well.
Therefore, challenges in these areas will be included in my
overall argument opposing medical paternalism.
20
Medical Ethics -- Universal or Professiona1 14
In discussing what he believes to be the proper approach to
forQulating a medical ethic, ethicist Robert Veatch contends "A
medical ethic should be an integral component of a universal
ethic, one which neither dichotomizes the ethical and the
scientific nor oakes ethical rightness dependent on membership in
.
1 ar pro f ess1ona
.
1 group.
any part1cu
II
15 II
.
e later questions:
What is this concept of professional ethics which is
appealed to so frequently as the unique responsibility
of a professional group, and why is it that the
professional is thought to be in a better position than
laymen, including the ethicist, to make the policy
choices necessary to 15solve problems in his field of
technical competence?
To answer the second question, Veatch relies upon what he calls
"the fallacy of generalization of expertise."
Stated simply, it is the view that professionals with
technical competence in a particular area also have
some peculiar expertise in the nontechnical system of
values from which criteria are drawn to make decisions
from questions which make y~e of the technical
information in their area.
According to Veatch, the decision making process consists of
primary and secondary components.
One secondary factor is the cathectic identification
with certain groups. This generates psychological
predispositions to formulate problems in peculiar ways
and identify with the interests of the reference group.
Another is the cultural identification with certain
systems of meaning which generate cultural
predispositions to use synbol systems, understand
words, and interpret reality in characteristic
patterns.
Primary factors in the decision-making process include,
21
first, empirical data about the "relevant facts" in the
situation and, second, a system of evaluation of those
facts to lead to a policy decision. It is often
observed that the secondary factors influence greatly
the perception of the relevant facts as well as the
system of evaluation. Further, the system of evaluation
itself influences the selectioy of "relevant facts" and
the perception of those facts. 8
He illustrates the problem of generalization of expertise by
quoting a physician who is sensitive to the problem: "[a]n
abortion is no more a medical question than capital punishment
through execution is a problem in electrical engineering." 19
Dr. Adrian Rogers recently expressed a similar view when he
stated "Whereas the social well being of a person is the
legitimate concern of his or her doctor, doctors have no special
professional knowledge of how to improve their patients' social
well being: This remains the concern of all men." 20
Rogers goes on to say that
[d]octors are more inclined to enter into public
controversy about issues such as abortion,
contraception for those under-sixteens and euthanasia
than about any other areas of medical practice. In
fact, what these three areas have in comnon is that
they primarily involve doctors in judgmental decisions
which are far more social than medical. In each case,
the medical component is almost irrelevant and it is
the personal ethics of the individual doctor which
decides that doctor's behaviour.
He offers several si@ple examples:
(l) The selection of a method for euthanasia is a
medical decision, to implement the method is a social
one. (2) The selection of a method of abortion is a
medical decision; the decision to implement the method
is 99 per/cent a social one •
. (3) The selection
of a method of contraception for a girl of fourteen is
22
a medical one. The decision to issue the contraception
is a purely social one. These are areas where the
doctors have assumed god-like roles and where their
ethical behavior has b2~ught them into greatest
conflict with society.
"There is need to distinguish between clinical and social
decisions made by doctors and to admit that social decisions are
better made by more than one person and preferably by people from
different professions."
22
In essence, Dr. Rogers is
presenting his version of ''the fallacy of generalization of
expertise," which was earlier presented by Veatch. Although I
certainly would not consider Dr. Rogers to be a friend or
advocate of personal autonomy, "[u]nless doctors make public
their agreed ethical principles patients will effectively be left
to shop around and try to have their wishes fulfilled." 23 lie
does at least recoBnize the physician's limitation of expertise
. 1 1ssues.
.
24
t o d ec1'd e soc1a
Several "clinical caveats" are offered by Drs. David Jackson
and Stuart Younger. "Physicians
\~ho
are uncomfortable or
inexperienced in dealing with the complex psychosocial issues
facing critically ill patients may ignore an important aspect of
their professional responsibility by taking a patient's or
faoily's statement at face value without further exploration or
clarification." 25 In the same article, they later state:
If the depression is adequately treated, or as is more
frequently encountered, is reactive to physical
discomfort that can be relieved, the patient may well
change his or her mind. The astute must be alert for a
23
history of endogenous depression, vegetative signs of
depression and any acute conditions to which the
patient may be reacting. Vigorous attempts to treat the
causes of depression should be made before
automat~gally acquiescing to the patient's
wishes.
Dr. Jackson's and Dr. Younger's concerns are legitimate ones that
if, properly implemented, do not violate the concept of autonooy.
As it is generally understood, autonony requires competency,
knowledge, etc. However, the inquiry \vhich they advocate is
subject to caveats of its own. ''If the HICU team can deal
effectively with the underlying real problem, the plea for death
with dignity may change radically." 27
Based on observations as well as my own personal
experiences, many individuals within and without the medical
profession assign underlying "real" reasons where there are none.
In my own case, there were physicians who stated that I was
incompetent to refuse treatment because of the physical
discomfort I was experiencing. Their alternative argument for
those times during which I experienced at least some degree of
relief from pain was that I was incompetent to make such a
.
decision because my thinking was being impaired by the pain shots
that I was receiving. This is a Catch-22 situation in the truest
sense. My own physician' refusal to respect patient autonomy
persisted even after the two psychiatrists, called in to assess
ny mental competency,
had declared me mentally competent to make
any decision that I wished. 28 However, even the psychiatrists
24
who declared me to be mentally competent mistakenly assessed the
"real" cause. The Hasting Center report published by Dr. Robert
\~hite
and Trish Englehart, identified the "real" cause of my
refusal as a desire on my part to "control" the situation. In
their report, they incorrectly concluded that my eventual consent
to skin grafts, which I had earlier successfully refused, was a
result of my finally being able to demonstrate that I was in
control.
29
This analysis could not have been more incorrect.
My consent to surgery was the direct result of a conversation in
which the head nurse on night duty informed me that I was going
to live regardless of whether I consented to the skin grafts and
that all I was doing was prolonging my stay in the hospital and
extending the period during which I would have to continue to
undergo the painful tanking. If I had been given actual control,
I would have neither consented to surgery nor remained in the
hospital.
Even the terminology "physical discomfort" used by Jackson
and Younger is indicative of part of the problem. It seems to be
common practice for physicians to refer to even extremely painful
procedures as "physical discomfort." The deceitfulness which is
inherent in such terminology may result in a patient consenting
to treatment which he would otherwise refuse. It does little to
enhance the physician-patient relationship, including the
physician's credibility as perceived by the patient. Physicians
00050
25
also appear to actually view pain in terms of physical
discomfort, which might well be accountable for the unwillingness
of many physicians to accept pain as being the "real" cause for
refusal. Therefore, I am pleased that Jackson and Younger assert
that pain can be a real reason for a patient's refusal of
treatment, even though their reference is made via an exceedingly
understated term.
There are those, however, who remain unconvinced that
"medical expertise does not a value judgment expert make." 30
Clements and Sider contend "Previously, a physician-patient
consensus was assumed based on medical values through the act of
consulting an expert on those values -- the physician." 31 • 32
They spend much time lamenting the move away from a traditional
medical ethic to an ethic that emphasizes patient autonomy. "We
want to make clear that the move from naturalist ethics to
formalist ethics has never been justified sufficiently."
For an ethic appropriate to medicine, we require a
clinical ethic, an ethic that begins with an
understanding of the status of norms in medicine. Such
norms are discoverable, and, while they are refined by
consensus, they are not merely social constructs or
subjective choices or minor factors in total
well-being. On the contrary, they are basic: biological
bottom lines. Moreover, within the clinical context,
ethical conduct is determined by the facts of the
situation, understood in terms of these norms. Thus,
clinical ethics is concerned primarily with adaptation,
function, and best interest. But such an ethic is also
modest. It claims no infallible principles by which
treatment decisions may be made. :loreover, medical
norms merely fit limits on the range of what is
adaptive. They do not prescribe with precision. And it
26
is only as normative function is reestablish that the
patient as decision maker that he is truly free to take
control of his life. So although clinical ethics
recognizes the importance of respecting the patient's
wishes and the value of sharing relevant information
with the patient, these issues take their rightful
place within a larger context. Such a posture is not
arrogant or Godlike paternalism. More consistent with
the Hippocratic tradition it insists that autonomy or
formalism is an inappropriate foundation upon which to
build medical ethics. When we as physicians act in the
best interests of our patients, we do so with the firm
hope that, when 3~e time comes, our physicians will do
the same for us.
At this point I believe it useful to reflect on the
foregoing views. Veatch has basically argued that mere technical
expertise does not automatically confer expertise over values
which are related to that technical area. However, he does
acknowledge that technical expertise may provide some special
insight in some instances.
34
Rogers seems to hold little
regard for patient autonomy, but he does agree with Veatch in
that he strongly emphasizes the distinction between decisions
which are primarily medical in nature and those that are
primarily social in nature. Along with his belief that physicians
have no special expertise when it comes to decisions that regard
social values, his view is that such social values are better
made by all men, preferably of different professions. He appears,
however, to be concerned as much with the image of the medical
profession as he is with patient welfare.
35
Clements and
Sider appear to believe that the medical profession alone has the
ability to make medical decisions, including the making of value
27
judgments related to medical practice. Their recommended clinical
approach to medical ethics seems to be heavily based on
th~ir
belief that physiological factors usually impair the patient's
decision-making capacity. However, they also seem to imply that,
even when not physiological, these decisions should be left to
36 J
.
. .
the wh 1m
o f t h e p h ys1c1an.
ac k son an d y ounger are
supportive of patient autonomy, but emphasize the need to
determine the "real" or underlying reason that a patient may be
refusing treatment rather than merely accepting his autonomous
demands at face value.
37
Most, if not all, fundamental universal normative values are
difficult, if not impossible, to prove from an intrinsic point of
view. Therefore, arguments will generally assume a naturalist,
utilitarian, religious, or similar approach. Therefore, though
most of us have an innate belief that killing or stealing is
wrong, we have difficulty demonstrating that they are wrong
unless we use an approach similar to one of those just mentioned.
Otherwise, the argument is reduced to a mere shouting match.
I believe that it is helpful to subject universal normative
values to utilitarian or other types of analysis, because by
doing so we may sometimes better understand the reasons why we
hold these values. Pragmatically, I believe that from a pragmatic
standpoint we can start from a standpoint of accepting a number
of these values as being true. Therefore, in this vein, I would
28
like to suggest that killing, stealing, lying, cheating and
slavery are properly perceived as being wrong, while not killing,
not stealing, truth-telling, fairness, and freedon are properly
perceived as being right. If agreement here can be reached, and
for the most part I believe it can, these values so stated are at
least in a general sense desirable values and ones which we wish
to maintain in our society. The next step then is to decide when,
if ever, exceptions should be made to these rules or at least
when, if ever, there should be special applications applied to
such values.
It is in this area that most controversies are likely to
arise. Does self defense, war, or capital punishment for one who
has killed another human being justify killing? Is stealing
justified in those cases where one is starving or one is
economically discriminated against? Is it proper to lie if, by
doing so, we are able to shield one from anguish? May personal
freedoo be limited for the good of society overall or when we
believe is in the individual's best interest? Also relevant is
the question of determining the appropriate manner in which to
~ake
a decision when these values compete with each other. Thus,
one may have to decide between preserving the freedom of oneself
and of one's country and the competing value of not killing. Some
would assign a higher importance to the value of freedom and
would therefore kill in order to preserve freedom, while others,
{)(J0~4
29
such as some religious sects, place a higher importance on not
killing.
Therefore, when questions of free exercise of religion and
free speech, both of which are guaranteed in the First Amendment,
have been raised by the school prayer issue, they have been
balanced against the Establishment Clause in the same amendment.
A mother's fundamental right to privacy, e.g., the right to an
abortion, has been balanced against the State's interest in
potential life.
The traditional medical ethic has apparently, either
consciously or subconsciously, engaged in such a balancing
procedure. Under that ethic, the highest value could probably be
stated as "do[ing] no harm to the person." 38 Therefore, one
could expect a physician, if he follows the traditional school in
medical ethics, to deceive a patient if he feels it would be in
the patient's best interest. Therefore, he might lead the patient
to believe that he will recover when actually his condition is
terminal. He might lie to a patient who has a history of heart
problems in order to prevent psychological trauma that could
create a risk of heart attack. And he might be expected to force
a mentally competent adult to undergo unwanted medical treatnent
if he felt it were in that individual's best interest.
The limitations that the traditional medical ethic has
placed on universal normative values or, at a ninimuQ, the manner
30
in which they have been applied has gone virtually unchallenged
for years. However, with technological advances, a heightened
sensitivity to civil liberties, and various other changes have
resulted in serious attacks on the traditional medical ethic. If
universal normative values are to be contravened, especially
those which are reflected to at least some degree in the U.S.
Constitution, I do not think that it would be unreasonable to
require a clear showing to be made that such an action is
justified.
Most arguments that attempt to justify the usurping of
universal normative values that flow from the traditional medical
ethic tend to gravitate around one or more of the following
areas: (1) the physician's oath, duty, and responsibility; (2)
the physician's expertise in knowing what is in the best interest
of the patient better than that patient knows for himself; and
(3) the best interests of society.
39
I will address each of
these issues in order.
Physician's Oath, Duty, and Responsibility
The denial of patient autonomy on the ground that to do
otherwise would be a breach of the physician's oath "to do no
harm" or by reason of the physician's duty and responsibility to
the patient is probably the hardest argument to defend. It can
basically be reduced to the assertion that "I have the right to
control your actions because (1) I have given my commitment to
31
the medical profession to act in your best interests, i.e., to do
no harm; and (2) because of the duties and responsibilities which
I perceive. Such an argument cannot even withstand the most
superficial scrutiny.
I believe that the following two analogies will demonstrate
the fallacy of such reasoning. (1) The "icaruscratic" oath. For
the sake of argument, suppose that following the first flight at
Kittyhawk, the Wright brothers reflected on their accomplishment
and became solemnly aware that unless the utmost care was used in
training the pilots who would fly in years to come, the lives af
these men would be placed in great danger. As a result, they
agree to require that before any pilot was to be given his wings,
he must recite the "icaruscratic oath, which stated in part "I
will fly in a manner that will not endanger the lives of my
passengers nor that of myself. I will only operate that craft for
which I am well qualified, fly only in weather conditions that
are clearly suitable for safe flight, and maintain the highest
degree of proficiency so as to maintain the safety of all. I will
watch over those who in my judgment are incompetent to operate
their craft in a safe manner and, if necessary, physically
restrain their flight until that time when their proficiency is
restored." If the "icaruscratic" oath sounds totally ridiculous,
I agree. Any intervention which seeks justification by reason of
an oath one has taken of a duty and responsibility which he
32
perceives is equally ridiculous. I believe that any experienced
aviator would agree that the lives of many pilots, their families
and other passengers could have been saved if veteran fliers had
acted in a manner so as to intervene in the autonomous acts of
those who obviously lack the desired proficiency for either the
aircraft or adverse weather conditions. (2) The new testament
commands Christians to "Go into all the world and preach the
gospe 1 • "
40
Because o f t h eir re 1 igious beliefs, many
Christians feel a commitment to God to convert as many others to
Christ as possible and sincerely feel a duty and responsibility
to those they feel are "misguided" or "lost." Reasonable oen
would clearly not consider such perceptions as justification for
the Christian to impose his religious beliefs on those of the
Jew1sh faith. Admittedly, there are distinctions when these two
analogies are compared with the physician. Religious beliefs are
spiritual and intangible, and there is no bright line which
separates spiritual life and spiritual death. And the Sunday
afternoon pilot who troops merrily out to his aircraft has not
placed himself nor has he been placed under the care of a veteran
onlooker. However, here we are only concerned with the analogy of
justification by reason of oath-taking and duties perceived, and
in this regard I think both analogies are valid. No oath taken,
nor duty perceived can justify intervention in the affairs of
those who do not share such values.
33
Physician's Expertise
To many if not most individuals, this is probably the most
convincing of arguments seeking to justify medical paternalism.
It can probably be stated as follows: A physician's technical
expertise in the field of medicine bestows upbn hin superior
decision making capabilities not only over technical matters but
over value judgments that are related to the medical field as
we11.
41
Thus, those who embrace the traditional medical ethic
could be expected to favor the restricting of the right to refuse
life-saving treatment, i.e., allowing the physician to determine
what is an acceptable quality of life, and other similar
decisions made in what he feels is the best interest of his
patient. The physician is seen as knowing what is best for the
patient better than the patient knows for himself.
Although they disfavor the use of the term "paternalism,"
Clements and Sider have chosen a extreme position in advocating
paternalistic medicine and the denial of patient autonomy.
They give one example,
42
hypo- and hyper-tension, of how a
patient's physiological condition can diminish his capacity to
make competent decisions. They then make the gen~ralization that
a patient's dininished capacity to make competent choices is
standard in most cases. They strongly emphasize that there are
"discoverable norms," but if I understand then correctly, insist
that they are only discoverable by those in the medical
34
44 Th
·
.
profess1on.
e spec1. f.1c1ty
as to how this is accomplished
and why this assertion is a valid one leaves much to be desired.
The argument that certain physiological conditions can cause
depression, etc., can result in choices that the patient would
not otherwise have made is well taken. This is very close to the
message that Jackson and Younger convey in pres.enting "clinical
caveats" against accepting a patient's refusal at face value.
However, where Clements and Sider seem to advocate a blanket
denial of a patient's right to autonomy, Jackson and Younger
appear only to be saying that a physician should look for factors
that may be influencing a patient's decision which, if discovered
and addressed,
~ight
cause the autonomous desire to be more in
line with that position the doctor has advocated himself. 45
The Clements and Sider article, including the general tone
and attitude that it displays, provides an excellent illustration
of several points which Veatch makes in discussing the fallacy of
generalization of expertise. The influences on perception what
empirical data is considered relevant certainly appears to be at
work in the Clements and Sider article. Clements and Sider also
seem oblivious to the distinctions between value judgments that
are primarily social and technical decisions which are primarily
medical, as Rogers discussed. 46 Or at least, if they do
recognize the distinctions, they do not recognize the right of
others in society which are outside of the medical profession to
00060
35
determine such matters. Although they claim that their intent is
to restore the patient to a condition where he can exercise "true
autonomy," the general tone of the article makes it difficult to
believe that the authors respect the notion of autonomy to any
great degree even outside of the medical profession. I agree.with
Culver and Gert in their response which said that such an attack
does little to bring about a responsible resolution to the
controversy.
47
I could not help but think, when I was reading
the article, what it would be like to live in a country governed
by these authors.
Values, like duty, are often only in the eye of the
beholder. As an example, I do not believe that anyone would
seriously argue that physicians do not vary, at least to some
degree, as to the amount of risk that they are willing to assume
in a given situation. For instance, at what point does the risk
of death become so small so as to justify the foregoing of a
medical procedure so that eyesight or limbs may be preserved. If
the patient was a renowned artist or concert pianist, whose
career would be terminated by the procedure, does the physician
consider this in his decision-making process? Is it
rea~onable
to
assume that the physician will sometimes be influenced by
nonmedical factors, such as his own appreciation or lack thereof
for art and music?
One might possibly argue that even though physicians may be
00061
36
expected to differ in respect to particular values and issues, a
paternalistic ethic, on the whole, will produce better decisions
than patient autonomy. Our society obviously does not choose to
use such tunnel vision in nonmedical areas, as evidenced in some
of the dangerous recreational sports in which we now engage. Even
here, however, physicians under the auspices of the AMA are
currently attempting to outlaw boxing, and one physician recently
appeared on the network news advocating the abolition of auto
racing.
Best Interests of Society
The Millian view of an autonomous self has received
criticism from a societal standpoint, a criticism which has also
been directed at the more narrow area of patient autonomy.
Phrases such as "no man is an island" and "the ripple effect on
society" have been used in order to justify paternalistic action.
The concept of personal autonomy has also been criticized as
"selfish" and detrimental to altruism and other admirable traits.
Actually, however, we engage in very few acts that do not have at
least some ripple effect on society. For example, if one has a
cold, every breath he takes has the potential of expelling
harmful bacteria in the area which others will be forced to
breathe. 48 Therefore, the only meaningful issue seems to be
the determination of which self regarding acts produce reasonable
ripple effects and which do not.
:(Hlf)f;2
37
Societies that value freedom seem to use a balancing test to
distinguish between reasonable and unreasonable acts. Therefore,
in the U.S., we allow citizens the personal autonomy to engage in
free speech but prohibit a false yelling of fire in a crowded
theater. lloth the United States and England rely heavily on the
reasonable prudent man standard to determine whether one has
exercised appropriate care when he engages in acts that may
adversely affect others in society. The application of a totally
different standard to matters involving patient conduct appears
to be irrational and quite inconsistent. While outside the
confines of a hospital and except for those instances where the
mobility principle has taken effect, an individual suffering from
severe emphysema or other smoking related illness may freely
exercise personal autonomy and continue smoking, regardless of
the fact that others may regard such acts as .foolish. Why, then,
is a physician allowed·to veto the same autonomous act once that
individual as been confined to a hospital?
In 1980, I personally observed an elderly person who had
been admitted to a state supported hospital for reasons that were
not related to smoking. However, at the request of the man's
family, the physician and the hospital staff restricted his
smoking to only two or three cigarettes a day. On many occasions,
I heard him exclaim, "I've been smoking since I was 12 years old,
and you're telling me I can't have a damn cigarette?" How would
38
Clements and Sider react if an automobile mechanic finished the
repairs they requested, but refused to return their automobile
without first replacing four badly worn tires?
If their clinically discoverable norm theory is indeed valid
and proper to justify paternalistic medicine and the
determination of values for the patient, should we not then apply
a similar ethic throughout society? Adult children could then
restrict their parents from engaging in dangerous recreational
activities, parents could restrict their children from seeking
employment in hazardous occupations. We could have a neatly
packaged, regimented society where all of society could
paternalistically care for and manage the affairs of his fellow
man. Unless one accepts the Clements and Sider notion that almost
all patients suffer from diminished capacity to make proper
decisions regarding their own care, there appears to be no
intelligent basis for the imposition of a double standard.
Footnotes
1. J. Feinberg, Autonomy, Sovereignty and Privacy, SO Notre
Dame L. Rev. 445, 446 (1982).
2. Feinberg has chosen to use the term "sovereignty" since
it denotes a supreme authority while political usage someimes
assigns autonomy a more restrictive meaning. I will use the words
interchangeably to denote a general sense of independence or
freedom of choice.
3. D. Callahan, "Autonomy: A Nora! Good, Not a Noral
Obsession," The Hastings Center Report 40 (1984).
4. Id. at 42.
5. Feinberg, supra note 1, at 455-56, quoting J.S. Mills, On
Liberty, 99 (1956).
6. Id. at 458, quoting Hills at 67-74.
7. Id.
quoting Mills at 93.
8. Id. at 459-60.
9. Id. at 463.
10. Id. 462, quoting A. Schopenhauer, Essay on the Freedom
of the Will 19 K. Kolenda trans. (1960).
11. Id. at 473, quoting Mills at 125.
12. The reference to auto racing has become somewhat dated
even as I write this paper, since on a recent television
newscast, a physician recomm.ended the banning of auto racing in
the United States. This desire was based both on the inherent
dangers of auto racing and also on the circumvention of the
40
advertising ban by companies who sponsor these races.
13. Social and moral views on suicide interact in this area
as well.
14. R. Veatch, Medical Ethics: Professional or Universal? 65
Harv. Theol. Rev. 531, 531 (1972).
15. Id. at 533.
16. Id. at 534-35.
17. Id. at 535.
18. Id.
19. Id. at 536.
20. A. Rogers, The Restoration of Medical Ethics, 10 J. Med.
Ethics 117, 117 (1984).
21. Id. at 119.
22. Id. at 120.
23. Id.
24. Id.
25. D. Jackson & S. Younger, Patient Autonomy and Death With
Dignity, 301 N. Eng. Med. J. 404, 407 (1979).
26. Id. at 407-408.
27. Id. at 408.
28. I fir~ly believe that the true ~otivation in ordering a
psychiatric examination was not for the purpose of determining my
state of mental competency but to have me declared mentally
incompetent so that a legal guardian could be appointed who would
41
give the consent which was necessary to perform the skin grafts.
29. R. White
& T. Englehardt, A Demand to Die, 5 Hastings
Center Report 9, 47 (1975).
30. Veatch, supra note 14, at 559.
31. C. Clements
& R. Sider, Medical Ethics' Assault Upon
Medical Values, 250 J. Am. Med. Ass'n 2011, 2013 (1983).
32. I believe there was only consensus in the sense that a
patient would sometimes agree with his physician, but where it
could not be reached, coercive treatment would be imposed.
33. Clements
& Sider, supra note 31, at 2015.
34. Veatch, supra note 14, at 532-35.
35. Rogers, supra note 20, at 118-20.
36. Clements & Sider, supra note 31, at 2012-13.
37. Jackson & Younger, supra note 25, at 408.
38. Veatch, supra note 14' at 539.
39. Callahan, supra note 3, at 42-43.
40. fvla t thew 2t>:19, The Bible.
41 • Veatch, supra note 14' at 535.
42. Clements & Sider, supra note 31 ' at 2015.
43. Id.
44. Id.
45. Jackson & Younger, supra note 25, at 407-08.
46. Rogers, supra note 20, at 118.
47. C. Culver
& B. Gert, Philosophy in Medicine, New York:
ooom
42
Oxford University Press (1982).
48. The Japanese choose to wear masks to cover their noses
and mouths to help prevent this.
1
Paternalism and the Hentally Competent Adult -- A Peculiar
Nedical Ethic
Part II
Just as I choose a ship to sail in or a house to live
in, so I choose a death for my passage from life
• Nowhere should we indulge the soul more than in
dying •
. A man's life should satisfy other people
as well, his death only himself, and whatever sort he
likes best.
1
-- Seneca
"I esteem it the office of a physician not only to restore
health, but to mitigate pain and dolours; and not only when such
mitigation may conduce to recovery, but when it may serve to make
a fair and easy passage."
-- Francis Bacon 2
"The makers of our Constitution .
i n t he i r
• sought to protect Americans
b e 1 i e f , t h e i r t h o u g h t s , t h e i r e r1 o t i o n s a n d t h e i r
sensations. They conferred, as against the Government, the right
to be let alone -- the most comprehensive of rights and the right
most valued by civilized."
--Brandeis, J. 3
Nothing in this utterance suggests that Justice
Brandeis thought an individual possessed these rights
only as to sensible beliefs, valid thoughts, reasonable
emotions, or well-founded sensations. I suggest he
intended to include a great many foolish, unreasonable
and even absurd ideas which do not conform, such as
refusing medical treatment even at great risk.
4
-- Warren Burger
"Put in another \vay,
the law, equity and justice must not
2
themselves quail and be helpless in the face of modern
technological marvels presenting questions hitherto unthought
0f
0
"
Hughes, C.J.
New Jersey Supreme Court
00070
5
3
III. Legal Concepts in Paternalism and Autonomy
A. Introduction
For the most part, the judiciary has followed one or both of
two legal theories in deciding medical treatment cases in favor
of patient autonomy. The principal theory and by far the most
recognized is the doctrine of informed consent, which is deeply
rooted in common law. The second theory is based on the
constitutional right of privacy, which is still somewhat suspect
as valid federal constitutional law as the United States Supreme
Court has yet to speak on the matter. However, insofar as
individual states have found the right to privacy to be
guaranteed by their own constitutions, this recognition should be
controlling. State legislation such as the Natural Death Acts
passed by a number of states have been enacted to supplement one
or both of the previously mentioned strands. The discussion that
follows primarily examines case law in order to identify the
process used by various courts in reaching medical treatment
decisions.
B. Constitutional Right of Privacy in General
Nowhere does the United States Constitution expressly
guarantee to the individual a right of privacy.
Olmsted v. United States
6
Justice Brandeis, dissenting in a 1928 case which dealt with
illegally seize evidnce in a criminal action, stated:
00071
4
The makers of our Constitution undertook to secure
conditions favorable to the pursuit of happiness. They
recognized the significance of man's spiritual nature,
of his feelings and of his intellect. They knew that
only a part of the pain, pleasure and satisfactions of
life are to be found in material things. They sought to
protect Americans in their beliefs, their thoughts,
their emotions and their sensations. They conferred, as
against the Government, the right to be let alone -the most comprehensive of rights and the right most
valued by civilized men. To protect that right, every
unjustifiable intrusion by the Government upon the
privacy of the individual, whatever the means employed,
must be de7med a violation of the Fourth
Amendment.
Griswold v. Connecticut 8
The United States Supreme Court struck down a Connecticut
statute that made the use of contraceptives a criminal offense.
In declaring the statute an unconstitutional invasion of the
right of privacy of married persons, Justice Douglas discussed
various peripheral rights which had been recognized by the Court
as necessary to make the express rights guaranteed by the
Constitution more secure. He concluded: "specific guarantees in
the Hill of Rights have penumbras, formed by the emanations froM
those guarantees that help give them life and substance. Various
guarantees create zones o f
To date,
•
pr1vacy.
II
the United States Supreme Court has recognized a
right of privacy in only the following areas: marriage,
procreation, contraception, family relationships, and child
.
.
10
r ear1ng
an d e d ucat1on.
(}(}072
5
C. Selected Case Study
Cases that discuss right of privacy have relied heavily on
common law. In the foregoing areas, the Supreme Court has clearly
recognized a constitutional guarantee of the right of privacy.
While the United States Supreme Court has yet to acknowledge the
right of privacy in the area of patient autonomy, there has been
rich legal history of the Supreme Court's and lower federal and
state courts' respect for the individual to be free from unwanted
medical intervention, drawing from both common and constitutional
law. Also, at the state level some courts have recognized both a
federal and a state constitutional right of privacy.
Union Pacific Railway Co. v. Botsford 1 1
Justice Gray in a 1891 United States Supreme Court decision
stated:
No right is held more sacred, or is more carefully
guarded, by the common law, then the right of every
individual to the possession and control of his own
person, free from all restraint or interference of
others, unless by clear and unquestionable authority of
law. As well said by Judge Cooley, "[t]he right to
one's person may be said to 2e a right of complete
1
immunity: to be let alone."
In Botsford, 13 the Court considered not a specific
patient autonomy issue but "whether, in a civil action for an
injury to the person,
the court, on application of the defer ;}ant,
and in advance of the trial, may order the plaintiff, without his
6
or her consent, to submit to a surgical examination as to the
extent of the injury sued for." 14
Schloendorff v. Society of New York Hospital 1 5
In a 1914 New York Court of Appeals case involving a
hospital patient who had consented to an examination but not to
the subsequent surgery which was performed on her, Judge Cardozo
stated: "Every human being of adult years and sound mind has a
right to determine what shall be done with his own body; and a
surgeon who performs an operation without his patient's consent
commits an assault, for which he is liable in damages." 16
Natanson v. Kline
17
The Kansas Supreme Court in 1960 in discussed a patient's
right to informed consent. The Court was particularly interested
in determining the extent of a physician's duty to confide in his
patient regarding his recommended treatment along with the
nature, consequences and risks associated with such treatment.
While discussing these issues, the Court stated:
Anglo-American law stars with the premise of
thorough-going self determination. It follows that each
man is considered to be master of his own body, and he
may, if he be of sound mind, expressly prohibit the
performance of life-saving surgery, or other medical
treatment. A doctor might well believe that an
operation or form of treatment is desirable or
necessary but the law does not permit him to substitute
his own judgment for ty~t of the patient by any form of
artifice or deception.
00074
7
Wilson v. Scott 19
In a 1967 case, the Texas Supreme Court adopted the
foregoing view, stating that a physician's duty to make a
reasonable disclosure is based upon the patient's right to
information adequate to exercise an informed consent to or
refusal of the procedure.
20
Cobbs v. Grant 21
In a 1972 California Supreme Court case also involving
informed consent, the court stated: "In many instances, to the
physician, whose training and experience enable a self-satisfying
evaluation, the particular treatment which should be undertaken
may seem evident, but it is the prerogative of the patient, not
the physician, to determine for himself the direction in which he
believes his interests lie." 22
In re Osborne 23
Later in .1972, the District of Columbia Court of Appeals
decided in favor of a patient who sought to refuse a life-saving
blood transfusion because of religious convictions. The court
stated: "The degree of state interest justifying intrusion by
court order has been viewe d as 'compell1· ng. '"
24
The court
indicated that this test had not been met when it discussed what
it considered to be the two critical issues of the case: "{1) has
00075
8
the patient validly and knowingly chosen this course for his
life, and (2) is there compelling state interest which justifies
overriding that decision?"
25
The court decided the first
critical issue in the affirmative. Apparently, the court's
primary consideration in resolving the second critical issue was
based on evidence tending to show that the patient believed he
would be deprived of life everlasting even if he involuntarily
received the transfusion
26
and that the patient had made
material and spiritual provision for the well-being of his two
children. Therefore, any interest of the state was outweighed by
those of the patient.
Matter of Quinlan,
27
By far the most highly publicized and controversial court
decision regarding the issue of patient autonomy is found a
~ew
Jersey Supreme Court case. Karen Quinlan, a comatose 21-year-old
woman, was described by the court as follows:
extremely poor,
"Her prognosis is
she will never resume cognitive life. And the
bodily invasion is very great,
she requires 24 hour intensive
nursing care, antibiotics, the assistance of a respirator, a
catheter and feeding tube." 28 The legal issues addressed
ranged from the constitutional right of privacy to the
. h
constitutional prohibition of cruel an d unusua 1 pun1s
ment. 29
Because the patient was comatose and therefore incompetent to
(}(}fl76
9
express her own desires, the patient autonomy issue is not
readily apparent. Its applicability, however, is understood when
viewed in terms of substituted judgment; i.e., a decision to do
for Karen what she would have done if able to communicate her own
wishes. In the court's words:
If a putative decision by Karen to permit this
non-cognitive, vegetative existence to terminate by
natural forces is regarded as a valuable incident of
her right of privacy, as we believe it to be, then it
should not be discarded solely on the basis that her
con~iti~B prevents her conscious exercise of the
cho1ce.
Here, the court recognized both a New Jersey and a Unites States
constitutional right to privacy by looking to language used by
Justice Douglas regarding the penumbras of rights that emanate
from expressed constitutional guarantees. "Presumably this right
is broad enough to encompass a patient's decision to decline
medical treatment under certain circumstances, in much the same
way as it is broad enough to encompass a woman's decision to
.
.
. .
"
term1nate
pregnancy un d er certa1n
con d 1t1ons.
31 Th
us,
t he
New Jersey Supreme Court has recognized patient autonomy as
included within a constitutional right of privacy although the
United States Supreme Court has not yet spoken on the
matter. 32
The New Jersey Court considered the relevant state interests
in this case to be "the preservation and sanctity of human life
and defense of the right of the physician to administer medical
10
treatment according to his best judgment." 33 Discussion of
the sanctity of life issue was primarily limited to the
characterization of discontinuing life-sustaining treatment as
s u i c i d e o r a s h om i c i d e • 0 n t h e i s s u e o f s u i c i d e , t he y s t a t e d : " '•·' e
would see, however, a real distinction between the
self-infliction of deadly harm and a self-determination against
artificial life support or radical surgery, for instance, in the
face of irreversible, painful and certain imminent death. " 34
On the issue of homicide,
they stated: "There is a real and in
this case determinative distinction between the unlawful taking
of the life of another and the ending of artificial life-support
systems as a matter of self-determination."
35
The court
indicated sympathy for the ethical dilemma presented in this case
and noted, "The medical obligation is related to standards and
practice prevailing in the profession."
36
The court went on
to state:
The question is whether there is such internal
consistency and rationality in the application of such
standards as should warrant their constituting an
ineluctable bar to the effectuation of substantive
relief for pla~~tiff at the hands of the court. We have
concluded not.
[T]he law, equity and justice must not themselves quail
and be helpless in the face of modern technological
mar~Bls presenting questions hitherto unthought
of.
As to right of control over the decision-making process,
court stated: "Decision-making within health care if it is
OOO?R
the
11
considered as an expression of a primary obligation of the
physician, primum non nocere, should be controlled primarily
within the patient-doctor-family relationship,
,39
In recognizing the need for procedural safeguards, the court
referred to Dr. Karen Teal's recommendation in a Baylor Law
Review article for a hospital ethics committee comprised of
"physicians, social workers, attorneys, and theologians" with an
official status "more that of an advisory body than an enforcing
body. "
40
"We cons1· der that a pract1ce
·
·
o f app 1 y1ng
to a court
to confirm such decisions would generally be inappropriate, not
only because that would be a gratuitous encroachment upon the
medical profession's field of competence, but because it would be
impossibly cumbersome."
41
As to judicial overview, the court
continued: "This is not to say that in the case of an otherwise
justiciable controversy access to the courts would be foreclosed;
we speak rather of a general practice and procedure."
42
The
court's holding in the Quinlan case ordered declaratory relief
which instructed:
Upon the concurrence of the guardian and family of
Karen, should the responsible attending physicians
conclude that there is no reasonable possibility of
Karen's every emerging from her present comatose
condition to a cognitive, sapient state and that
life-support apparatus now being administered to Karen
should be discontinued, they shall consult with the
hospital "Ethics Committee" or like body of the
institution in which Karen is then hospitalized. If
that consultative body agrees that there is no
reasonable possibility of Karen's ever emerging from
01107~
12
her present comatose.condition to a cognitive, sapient
state, the present l1fe-support system may be withdrawn
and said action shall be without any civil or criminal
liability the~efor on ~h~ part of any participan~
whether guard1an, phys1c1an, hospital or others. 3
Hatter of Conroy 44
In 1985, the New Jersey Supreme Court handed down what is
probably the most comprehensive, well-reasoned decision regarding
the removal of life-sustaining treatment, and exhaustively
discussed this topic on both terms of a mentally competent and
mentally incompetent patient. The court thoughtfully addressed a
host of the controversial matters that are inherently intertwined
in the area of patient autonomy.
We thus approach this case with caution, conscious that
life-and-death decisions like these are an awesome
responsibility that can be undertaken only with a
profound sense of humility and reserve.
The case of Claire Conroy raises moral, social,
technological, philosophical, and legal questions
involving the interplay of many disciplin~s· No one
person or profession has all the answers.
Claire Conroy was an 84-year-old bedridden nursing home patient
who suffered from serious and irreversible mental and physical
impairments.
She suffered from arteriosclerotic heart disease,
hypertension, and diabetes mellitus; her left leg was
gangrenous to her knee; she had several necrotic
decubitus ulcers (bed sores) on her left foot, leg and
hip; an eye problem required irrigation; she had a
urinary catheter in place and could not control her
bowels; she could not speak; and her ability to swallow
. .
d • 4o
was very 1 1m1te
0()08()
13
Although she manifested periodic confusion, "she interacted with
her environment in some limited ways,"
47
as indicated by an
occasional moan, smile or eye movement. The court was cognizant
of the seriousness and difficulty of deciding on a course of
treatment for an incompetent patient. "To err either way -- to
keep a person alive under circumstances under which he would
rather have been allowed to die, or to allow that person to die
when he would have chosen to cling to life -- would be deeply
unfortunate.
48
In embracing the deeply rooted common law
doctrine of informed consent, the court noted:
There are three basic prerequisites for informed
consent: the patient must have the capacity to reason
and make judgments, the decision must be made
voluntarily and without coercion, and the patient must
have a clear understanding of the risks and benefits of
the proposed treatment alternatives or nontreatment,
along with a full understaH§ing of the nature of the
disease and the prognosis.
They stated that ''[t]he patient's ability to control his bodily
integrity through informed consent is significant only when one
recognizes that this right also encompasses a right to informed
refusal." 50
The federal constitutional right of privacy, earlier
enunciated in Quinlan, was reaffirmed,
but the court declined to
determine its applicability in Conroy, "since the right to
decline medical treatment is, in any event, embraced within the
u51 n
.
.
common-law right to sel f -determination.
uu t un d er ei'th er
ftll0~1
14
of the two legal theories, "the right to decline life-sustaining
medical treatment is not absolute."
52
"Courts and
commentators have commonly identified four state interests that
may limit a person's right to refuse medical treatment:
preserving life, preventing suicide, safeguarding the integrity
of the medical profession, and protecting innocent third
·
"
part1es.
53
I n stat1ng
.
t h at "[ t ]h e stat(· ' s interest in
preserving life is commonly considered the most significant of
the four state interests"
54
which "may be seen as embracing
two separate but related concerns: an interest in preserving the
life of the particular patient, and an interest in preserving the
sanctity of all life,"
55
the court distinguished between an
individual who competently declines life-sustaining treatment for
himself and individuals or potential lives that cannot adequately
protect themselves as in Roe v. Wade.
As in Quinlan, the court here rejected the characterization
of refusing life-sustaining treatment as being tantamount to
suicide by stating: "Refusing medical intervention merely allows
the disease to take its natural course; if death were eventually
to occur, it would be the result, primarily, of the underlying
disease, and not the result of a self-inflicted injury."
56
As to the interest in safeguarding the integrity of the
medical profession, the court's view was that "[t]his interest,
like the interest in preventing suicide, is not particularly
(}(}0~2
15
threatened by permitting competent patients to refuse
life-sustaining medical treatment. Medical ethics do not require
medical intervention in disease at all costs." 57 Here, the
court quoted Francis Bacon as writing in 1624: "I esteem it the
office of a physician not only to restore health, but to mitigate
pain and dolours; and not only when such mitigation may conduce
to recovery, but when it may serve to make a fair and easy
passage.
u58
Another reason courts have refused to recognize a mentally
competent patient's right to refuse treatment has been where he
has equivocated in his refusal. Typical cases of equivocation
have involved the refusal of life-saving blood transfusions by
Jehovah's Witness members.
The Conroy court advanced three alternative tests for
decision making and discussed the circumstances concerning the
applicability of each -- a subjective test, a limited objective
test, and a pure objective test. Under the subjective test,
"life-sustaining treatment may be withheld or withdrawn from an
incompetent patient when it is clear that the particular patient
would have refused the treatment under the circumstances
involved." 59 "The question is not what a reasonable or
average person would have chosen to do under the circumstances,
but what a particular patient would have done if able to choose
for himself." 60
16
The court indicated that a patient's desires could be
determined in many ways, including a living will, earlier oral
directives, durable power of attorney or proxy, reactions
previously voiced regarding medical treatments of others,
religious beliefs, and patient's consistent pattern of conduct
regarding his own prior medical decisions.
The court recognized that "for some incompetent patients it
might be impossible to be clearly satisfied as to the patient's
intent either to accept or reject the life-sustaining
treatment."
61
Therefore, where a third party decision-maker
does not possess such knowledge, his substituted judgment could
not be seen as advancing the patient's right to
self-determination. Because the court did not want the lack of
prior indication of the patient's wishes to foreclose humane
action that would allow the termination of treatment, the court
relied on its parens patriae authority over incompetents and
outlined two "best interests" test. The first of these tests is a
limited objective test that would be applicable in situations
similar to the instant case: "when there is some trust-worthy
evidence that the patient would have refused the treatment, and
the decision-maker is satisfied that it is clear that the burdens
of the patient's continued life with the treatment outweigh the
benefits of that life for him (emphas1s
· a dd e d) • " 62 Th e court
stated that "medical evidence will be essential" in weighing
17
these benefits and burdens to the patient and emphasized the need
for doing what the patient would have wanted. "Information is
particularly important with respect to the degree, expected
duration, and constancy of pain with and without treatment, and
the possibility that the pain could be reduced by drugs or other
means short of terminating the life-sustaining treatment." 63
A purely objective test would be applicable in the absence
of any trustworthy evidence that a patient such as Claire Conroy
would have declined the life-sustaining treatment.
Under that test, as under the limited objective test,
the net burdens of the patient's life with the
treatment should clearly and markedly outweigh the
benefits that the patient derives from life. Further,
the recurring, unavoidable and severe pain of the
patient's life with the treatment should be such that
the effect of administering life-su~taining treatment
would be inhumane (emphasis added). J
Here it is important to note that the standard is "clearly and
markedly" rather than "clearly" as was used in the limited
objective test where at least something is known of the patient's
desires. In further recognition of the patient's right to
self-determination, the court went on to state that
"[n]evertheless, even in the context of severe pain,
life-sustaining treatment should not be withdrawn from an
incompetent patient who had previously expressed a wish to be
k ept alive in spite of any pain that he mig h t
.
experience.
u65
In an apparent effort to address the "slippery slope" and
18
similar arguments, the court emphatically states that "we
expressly decline to authorize decision-making based on
assessments of the personal worth or social utility of another's
life, or the value of that life to others. We do not believe that
it would be appropriate for a court to designate a person with
the authority to determine that someone else's life is not worth
living simply because, to that person, the patient's 'quality of
life' or value to society seems negligible." 66 The court held
that in Claire Conroy's case, none of the three tests were flet;
however, its decision to hear the case despite Mrs. Conroy's
death indicates the Court's belief in the substantial importance
of the issues raised as well as their desire to reaffirm the
right of patient autonomy.
Superintendent of Belchertown State School v. Saikewicz 67
Joseph Saikewicz, a 67-year-old resident of a Massechusetts
state mental institution, had an I.Q. of 10 and a mental age of
approximately two years and eight months. He had been retarded
since birth and contracted a leukemic condition at the age of 67.
The question to be resolved was whether he should be treated for
this condition in view of pain, side effects and other factors
associated with the chemotherapy treatment. Important
considerations included the institution's belief that Saikewicz
would perceive the pain associated with such treatment as
000~
19
punishment as well as the diminished effectiveness of the
treatment for patients older than the age of 60. Issues
concerning suicide, third party interests and ethical integrity
of the medical profession were addressed and resolved in a manner
similar to Quinlan and other cases already discussed.
Regarding sanctity of life and the right of
self-determination, the court stated:
The constitutional right to privacy, as we conceive it,
is an expression of the sanctity of individual free
choice and self-determination as fundamental
constituents of life. The value of life as so perceived
is lessened not by a decision to refuse treatment, but
by the failure tg allow a competent human being the
8
right of choice.
The court indicates a disposition to somewhat limited
self-determination by stating that
[t]here is a substantial distinction in the State's
insistence that human life be saved where the
affliction is curable, as opposed to the State interest
where, as here, the issue is not whether but when, for
how long, and at what co~9 to the individual that life
may be briefly extended.
However, the Massachusetts court went on to say that "we should
make it plain that the primary test is subjective in nature
that is, the goal is to determine with as much accuracy as
possible the wants and needs of the individual involved." The
relevance of this case to the issue of patient autonomy can be
found in the court's statement:
In short, the decision in cases such as this should be
that which would be made by the incompetent person, if
000~7
20
that person were competent, but taking into account the
present and future incompetency of the individual as
one of the factors which would necessarily enter into
the dec~aion-making process of the competent
person.
The court held that the state's interests did not outweigh
Saikewicz's right to privacy and self-determination and upheld
his right to decline life-prolonging medical treatment. The
Massachusetts court emphasized that the quality of life criteria
used by the lower court did not equate with value of life. The
court noted the lower court's special concern for Saikewicz's
vulnerability and stated that "[t]he judge, as well as all the
parties, were keenly aware that the supposed ability of
Saikewicz, by virtue of his mental retardation, to appreciate or
experience life had no place in the decision before them." 71
Matter of Quackenbush
In
197~,
72
a New Jersey court directly addressed the right of
a mentally competent 72-ycar-old man to refuse life-saving
treatment. Quackenbush suffered from gangrene in his legs, both
of which were in a partially mummified condition. He had for 40
years shunned medical treatment and was described by his doctor
as "a conscientious objector to medical therapy."
73
After
several days of discussion with his physician which seemingly
more than satisfied all requirements of informed consent,
Quackenbush agreed to the amputation of both legs but withdrew
21
the consent later that day. Facts resented indicated that chances
for recovery were good if the surgery were performed, but without
it he would probably die within three weeks. A psychiatrist
appearing for the hospital found Quackenbush to be incompetent
"to make an informed decision concerning the operation." 74 A
second psychiatrist who was appointed by the court, as well a the
judge who made a personal visit to speak with Quackenbush, both
concluded that Quackenbush was competent to make an informed
decision. It is significant to note that the latter two decisions
were reached after taking into account the fluctuations in mental
lucidity which they considered normal for a 72-year-old man under
the circumstances. The court also considered Quackenbush's hope
that a miracle would occur as well as his doubt that it would.
They rejected hospital assertions that the refusal was equivalent
to suicide in favor of the right to privacy and
self-determination argument advanced by Quackenbush. Having
determined Quackenbush to be mentally competent, the court relied
heavily upon the "extensive bodily invasion" as "sufficient to
make the State's interest in the preservation of life give way to
Robert Quackenbush's right of privacy to decide his own future
.
..75
regardless of the absence of a dim prognos1s.
Lane v. Candura
76
This case considered a matter similar to that of
22
~uackenbush.
77
A 77-year-old widow suffered from a
gangrenous foot and persisted in her refusal to allow life-saving
78
amputation.
Her doctor characterized her refusal as suicide
and stated that in his opinion she
" was
.
1ncompetent
to make a
rational choice whether to consent to the operation.•• 79 The
court, however, stated that the physician's opinion was "not one
of incompetency in the legal sense, but rather that her ability.
to make a rational choice (by which he means the medically
rational choice) is impaired by the confusion existing in her
mind by virtue of her consideration of irrational and emotional
factors."
8
° Following
this statement, the court noted that
"[u]ntil she changed her original decision and withdrew her
consent to the amputation, her competence was not
questioned."
81
The court found in favor of Mrs. Candura,
stating:
We hold that Mrs. Candura has the right under the law
to refuse to submit either to medical treatment or a
surgical operation, that on the evidence and findings
in this case the decision is one that she may determine
for herself, and that therefore her leg may not be
amp~tat81 unless she consents to that course of
act1on.
Satz v. Perlmutter
83
The Florida Court of Appeals in 1978 considered the case of
Abe Perlmutter, a 73-year-old victim of
LOU
Gehrig's disease
whose life was being sustained by a respirator. Although there
00090
23
seemed to be no question as to his mental competency and his
family was in accord with his wishes, the hospital had refused
his wishes to be disconnected from the respirator. The State
advanced many of the traditional arguments such as unlawful
homicide and injury to the integrity of the medical profession.
The Florida court rejected these arguments and also distinguished
the instant case from those where refusal of treatment had been
denied, stating that "[i]n the blood transfusion cases, the
patient is either incompetent to make a medical decision,
equivocal about making it
..
• or it is a family member making
the decision for an inert or minor third party patient." 84
Agreeing with prior cases holding that "a competent adult patient
[has the right] to refuse treatment for himself," the court
stated "because Abe Perlmutter has a right to refuse treatment in
the first instance, he has a concomitant right to discontinue
it."
85
Respecting the patient's constitutional right to
privacy, freedom of choice and self-determination, the court
concluded:
It is all very convenient to insist on continuing Nr.
Perlmutter's life so that there can be no question of
foul play, no resulting civil liability and no possible
trespass on medical ethics. However, it is quite
another matter to do so at the patient's sole expense
and against his competent will, thus inflicting never
ending physical torture on his body until the
inevit~gle, but artificially suspended, moment of
death.
24
Significant here is that in upholding Abe Perlmutter's right to
be removed from the respirator, the court narrowly restricted its
decision to the facts of the instant case, stating, "[t]he
problem is less easy of solution when the patient is incapable of
understanding and we, therefore, postpone a crossing of that more
complex bridge until such time as we are required to do
so."
87
The fact that the disease was incurable, the patient's
condition wretched, that death would ensue shortly even with the
respirator, and that the patient did not induce his condition
also influenced the court's decision.
Matter of Storar 88
In a 1981 case consolidating Storar v. Soper and Eichner v.
Dillon, the New York Court of Appeals considered termination of
treatment issues involving a 52-year-old retarded man who was
dying from terminal cancer of the bladder and also considered
whether a respirator could be removed from a 83-year-old priest
in a vegetative condition. The court determined that
life-sustaining blood transfusions should be continued as to
Storar but that Brother Fox could be removed from the respirator.
The court's primary reason for distinguishing between these cases
was due to Storar's never having been mentally competent for his
entire life and therefore never having been able to competently
express what his desires might be in the matter, while on the
25
other hand there was clear an convincing evidence that Brother
Fox did not wish to be kept alive in such a condition since he
had expressed this desire while competent. In both cases, the
court rejected the lower court's finding of a constitutional
right to privacy, noting that although the United States Supreme
Court has had many opportunities to speak on the matter, hey have
declined to do so. Instead, the court relied upon common law. As
to Storar, the court relief upon parens patriae authority,
stating:
Thus it is unrealistic to attempt to determine whether
he would want to continue potentially life prolonging
treatment if he were competent •
• that would be
similar to asking whether "if it snowed all summer
would it then be winter?" Hentally John Storar was an
infant and that is the on1~ realistic way to assess his
rights in this litigation. 9
However, a dissenting opinion seemed to display more humanity and
insight when it stated:
[H]is mother over his lifetime had come to know and
sense his wants and needs and was acutely sensitive to
his best interests;
• she had provided more love,
personal care, and affection for John than any other
person or institution, and was closer to feeling what
John was feeling than anyone else; • • • his best
interests were of crucial importance to her;
• in
his mother's opinion it would have been in John's best
interests to discontinue the transfusions, and sh9 0
believed that he would wish to have them stopped.
The dissent would have allowed the mother to exercise the son's
rights and to discontinue treatment.
26
Barber v. Superior Court of State of California 91
In 1983, a California Court of Appeals heard a criminal case
involving two doctors who were charged with murder and conspiracy
to commit murder as a result of discontinuing use of a respirator
and intravenous feeding. The patient never regained consciousness
after surgery. The physicians consulted with the family, telling
them that the patient's prognosis was dim. Three days following
the surgery, the family drafted a written request to remove the
life support systems mentioned. The court found that the
California Natural Death Act "does not represent the exclusive
basis for terminating life-support equipment in this
state,"
92
and relied upon both the co!'!lmon law and other
California legislation that recognized "the legal right to
control one's own medical treatment." 93 Oral testimony was
introduced that the patient had "expressed to his wife his
feeling that he would not want to be kept alive by machines or
'become another Karen Ann Quinlan.'"
94
In discussing a
physician's duty to his patient, the court stated that "[w]e deal
here with the physician's responsibility in a case of a patient
who, though not 'brain dead," faces an indefinite vegetative
existence without any of the higher cognitive brain
functions." 95 It went on to determine that "[a] physician as.
no duty to continue treatment, once it has proved to be
ineffective." 96 However, "whenever possible, the patient
27
himself should then be the ultimate decision-maker."9 7 In the
instant case, there was agreement between the patient's wife and
his eight children that treatment should be withdrawn, ad the
court found no evidence "that they were motivate in there
decision by anything other than love and concern for the dignity
of their husband and father."
98
They also ruled that a formal
appointment of guardianship was not legally required. After
commenting several times upon the need for more legislative
guidance.
99
In such cases, the court concluded, "we find no
legal requirement that prior judicial approval is necessary
before any decision to withdraw treatment can be made." 100
Foody v. Manchester Memorial Hospital
101
In 1984, a Connecticut court relied on substitute judgment
exercised by the father of a semi-comatose 42-year-old victim of
multiple sclerosis in reaching their decision. The court found
that a federal constitutional right to privacy as well as a
common law right to self-determination were present in the
instant case. After considering state interests and the absence
of improper motivations for discontinuing treatment, the court
concluded that "(i]f the decision is made to discontinue the use
of all such devices and as a result death should occur, hospital
personnel and attending physicians shall not be subject to
criminal or civil liability because of such
00~5
28
.
.
.. 102
discont1nuance.
Bartling v. Superior Court of California 1 03
The California Court of Appeals in December 1984 reversed a
lower court's ruling that "as long as there was some potential
for restoring Mr. Bartling to a 'cognitive, sapient life,' it
would not be appropriate to issue an injunction" (ordering
disconnection of Mr. Bartling's ventilator). 104 The patient
suffered from several acute and apparently incurable illnesses
which had not been d i a g nosed as term in a 1 a t the time of t ria 1 ·but
nonetheless were expected to result in death in a very short
105
·
"1
Bart 1.1ng h a d state d t h at "h e wante d to 1 ive but
t1me.
1·r.
preferred death to his intolerable life on the
ventilator." 106 Commenting upon Mr. Bartling's occasional
vacillation as to his resolve to disconnect the respirator, the
court stated that ''[t]he fact that Mr. Bartling periodically
wavered from this posture because of severe depression or for any
other reason does not justify the conclusion of [the hospital]and
his treating physicians that his capacity to make such decision
.
u107
was impaired to the point of legal 1ncompetency.
Although the patient had executed a Living Will, it did not
conform to the narrow provisions of the California Natural Death
Act. Also noteworthy was his wife's support of Mr. Bartling's
decision. After considering traditional arguments such as the
000~6
29
constitutional right of privacy, the individual right to
self-determination, and state interests, the court concluded that
Mr. Bartling should have been allowed to have
t~e
respirator
removed despite the fact that death would have quickly ensued.
Matter of Hier 108
In 1984, the Appeals Court of Massachusetts considered the
case of Mary Hier, a 92-year-old woman requiring that nutrition
to be given by artificial means involving surgery. She had been
institutionalized in a psychiatric hospital for 57 years. In
declining to adopt New York precedent involving
incompete~ts,
the
Massachusetts court stated
[The Storar case] explicitly rejected the substituted
judgment approach [citing Storar] and seemingly left
New York law with no vehicle to enable withholding of
life-prolonging measures to a patient incompetent to
make the decision for himself, unless the patient (1)
had, at some time, been competent, and (2) had
expressed a wish when competent not to receive such
measures. It is the essential function of the
substituted judgment analysis, formulated in the
Saikewicz case and applied here by the probate judge,
to secure to incompetent persons the same right to
choose or reject treatment that is accory 0§ to
competent persons by the law of consent.
Tune v. Walter Reed Army Nedical Hospital
110
In March 1985, the United States District Court for the
.
' s request to
District of Columbia considered a competent pat1ent
be removed from a respirator.
When she was first placed on the respirator the
30
physicians were unaware of the full extent of her
illness. In combination, her malignancy and lung
disease import a mortality rate approaching 100
percent, and had they known the circumstances they
would not have ordered the respirator originally.
Having doe so, however, they are constrained to
continue life support, despite i~I wishes of patient or
family, by Army medical policy.
The Court noted that:
Although the Supreme Court has recognized the primacy
of individual autonomy in certain matters of the more
intimate and sensitive nature encountered in the course
of human affairs, it has yet to do so in the context of
natural death. Roe v. Wade,
supra, however, is
instructive for purposes of this case, because the
Supreme Court there proceeded upon the premise that a
competent adult has a paramount right to control the
disposition to be made of his or her own body, absent a
compelli~¥ countervailing governmental interest
2
opposed.
[I]t is now a well-established rule of general law, as
binding upon the government as it is upon the medical
profession at large, that it is the patient, not the
physician, who ultimately decides if §reatment -- any
1
treatment -- is to be given at all.
After discussin8 the countervailing state interests and
concluding that they were insufficient to outweigh the patient's
"interest in dying as she chooses," the court held that
"[c]ompetent adult patients of federal medical facilities with
tercinal illnesses and in the circumstances presented here have a
right to determine for themselves whether to allow their lives to
be prolonged by artificial means, including the right to deQand
"114
the cessation of life support once b egun.
31
John F. Kennedy Hospital v. Bludworth 115
The ·supreme Court of Florida heard a 1984 case involving a
living will and issues regarding civil and criminal liability
relating to the withdrawal of a mechanical ventilator. The
patient had suffered irreversible brain damage and had been
declared incompetent by the probate court. This case illustrates
the importance of a "living" or "mercy" will as persuasive
evidence in respect to the exercise of an incompetent patient's
right to self-determination regarding his or her medical
treatment. It appears that the living or mercy will is generally
not considered to be legally enforceable except as it conforms to
a natural death act or other legislation in a particular
state.
116
However, the Florida court stated that such a
declaration should be given "great weight" by those exercisine
substituted judgment. As to issues regarding liability, the court
stated that "[t]o be relieved of potential civil and criminal
liability, guardians, consenting family members, physicians,
hospitals, or their administrators need only act in good
faith." 117 As in the California case of Barber, the Florida
court held that "[i]f there are close family members such as the
patient's spouse, adult children, or parents, who are willing to
exercise this right on behalf of the patient, there is no
.
118
requirement that a guardian be judicially appointed.
32
Andrews v. Ballard 11 9
A 1980 federal district court applying Texas law discussed
the right of a patient to have at least some choice as to the
particular type of medical treatment that he wishes to receive.
John Walter suffered from lower back pain and had not been able
to find relief by traditional Western medical treatment. The
state would not allow a highly skilled practitioner of
acupuncture from Nevada to perform acupuncture treatment in Texas
because he did not meet the Texas licensing requirements. This
practice was limited to licensed physicians only. That limitation
was ironic in that the court found that the State of Texas
provided no instruction or testing of its physicians regarding
acupuncture skills. In reaching their decision, the court
concluded: "Thus, the decision to obtain or reject medical
treatment, presented in the instant case as the decision to
obtain acupuncture treatment, is both personal and important
enough to be encompassed by the right of privacy."
120
Because of the burden and significant interference imposed
by the licensing requirement, the court found that the rational
basis test did not apply. Therefore, the compelling state
interest test was applicable, and because the licensing
requirement was not "narrowly drawn" to a "compelling state
interest," 121 the court found the statute to be invalid.
00100
33
IV. Conclusions and Trends
As legal, medical, social and classical literature clearly
indicate, the concept of patient autonomy is no radical modern
day notion. However, the ability of modern medical technology to
sustain life or prolong death under thoroughly wretched
circumstances has created a host of moral, ethical and social
dilemmas never before experienced. The posture taken by what
appears to be the majority of federal and state courts when
called upon to decide such issues has been surprisingly
consistent regardless of wether their primary reliance was upon
constitutional, common or statutory law. The courts' reverence
for an individual's right to self-determination as to matters
involving his or her medical
treat~ent
is quite evident. It
appears that medical treatment that is administered in the
absence of informed consent is still considered by most courts to
create a cause of action for the tort of battery. I am
exceedingly impressed by the insight, sensitivity and
thoroughness that is reflected in most courts' opinions. I am
also pleased by the primacy that most courts give to the needs
and wishes of each patient on an individual basis even in many of
the instances where I would have decided differently. A number of
the courts have spoken of the need for more legislative
guidelines, and these will probably be forthcoming. In the
interim, it appears that most courts will tend to proceed slowly,
34
with caution and further toward the right to self-determination.
Terms sue h as "l"f
1 e " an d "d eat h" wh"1ch once seemed clear and
absolute are now having to be redefined. The concept of
me ani n g f u 1 1 i f e , d e a t h wi t h d i g n i t y , q u a 1 i t y of 1 i f e , and "d 0 in g
no harm to the patient" must be viewed from many nevi
perspectives. Questions regarding the distribution of scarce and
costly medical resources must be answered in terms of economic
realities.
A number of individuals have expressed fears that
discontinuing life-sustaining treatment in any situation would
lead to a standard based upon a particular patient's utility and
value to himself or to society. I believe that reasonable men
would find such a standard appalling. As long as our courts
continue to emphasize the individual's right to
self-determination, fears that utility will become as a
determinant have little merit and will remain unrealized. If
courts were to adopt a utility standard it would clearly be the
greatest reversal and breach of individual rights ever enunciated
by the court. I question whether any meaningful rights would
remain if the chief guardian of our personal freedoms were to
adopt such standards.
001"2
1. President's Comm'n for the Study of Ethical Problems in
Medicine
& Biomedical & Behavioral Research, Deciding to Forego
Life-Sustaining Treatment 22 (1983), quoting Seneca, Suicide, in
the Stoic Philosophy of Seneca 506.
2. F. Bacon, New Atlantis,
quoted in Matter of Conroy, 486
A.2d 1209, 1225 (N.J. 1985).
3. Olmstead v. United States, 227 U.S. 438, 478 (1928)
(Brandeis, J., dissenting).
4. Application of President & Directors of Georgetown
College, 331 F.2d 1010, 1017 (D.C. Cir. 1964) (Burger,
dissenting).
5. Matter of Quinlan, 355 A.2d 647, 665 (N.J. 1976) (Hughes,
C.J.).
6. 227
u.s.
438 (1928).
7. Id. at 478.
8. 381
u.s.
479 (1965).
9. Id. at 484.
10. See Andrews v. Ballard, 498 F. Supp. 1038, 1045 (S.D.
Tex. 1980), citing Carey v. Population Services Internat'l, 431
u.s.
678, 684-85 (lq77).
11. 141
u.s.
250 (1891).
12. Id. at 251, citing Cooley on Torts.
13. Union Pacific Ry. Co. v. Botsford, 141 U.S. 250 (1891).
14. Id. at 251. The law now recognizes the right of the
defense under similar circumstances to requie such an
0010~
36
examination, but for reasons of fairness to the defense rather
than from any reason of favoring the allowance of bodily
intrusion.
15. 211 N.Y. 125, 105 N.E. 92 (App. Ct. 1914).
16. 211 N.Y. at
__ ,
105 N.E. at 93.
17. 186 Kan. 393, 350 P.2d 1093 ((1999960).
18. 186 Kan. at
__ ,
350 P.2d at 1104.
19. 412 S.\,J.2d 2999 (1967).
20. I d.
21. 8 Cal.3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972).
22. 8 Cal.3d at __ , 502 P.2d at 10, 104 Cal. Rptr. at __ •
23. 294 A.2d 372 (D.C. App. Ct. 1972).
24. Id. at 374.
25. Id. at 375.
26. In similar cases, some courts have ordered involuntary
blood transfusions where the patient indicated that, despite
religious convictions, he would not resist the court order.
27. 70 N.J. 10, 355 A.2d 647, cert. denied sub nom., ·Garger
v. New Jersey, 429 U.S. 922 (1976).
28. 70 N.J. at __ , 355 A.2d at 664.
29. The court found the Eighth Amendment's protection
against cruel and unusual punishment not relevant to this case as
it·applies only to penal sanctions.
30. 70 N.J. at
, 355 A.2d at 664.
0011l4
37
31. 70 N.J. a t _ , 355 A.2d at 663, citing Roe v. \.Jade, 410
u.s.
1973).
32. Quinlan's father asserted that he had a constitutional
right of privacy that encompassed the right to make decisions
regarding medical treatments on his daughter's behalf. He also
asserted a similar claim as to his constitutional right to free
exercise of religion. The court held against the father as having
these rights on both issues.
33. 70 N.J. at
_,
355 A.2d at 665.
34. 70 N.J. at
_,
355 A.2d at 670.
35. 70 N.J. at
_,
355 A.2d at 666.
36. 70 N.J. at
_,
355 A.2d at 670.
38. 70 N.J. at
_,
355 A.2d at 665.
39. 70 N.J. at
_,
355 A.2d at 669.
40. 70 N.J. at
_,
355 A.2d at 668, citing 27 Baylor L. Rev.
_,
355 A.2d at 669.
_,
355 A.2d at 671.
37. Id.
6, 8-9 1975).
41. 70 N.J. at
42. Id.
43. 70 N.J. at
44. 98 N.J. 321, 486 A.2d 1209 (1985).
45. 98 N.J. at
__ ,
486 A.2d at 1220.
46. 98 N.J. at
_,
486 A.2d at 1217.
47. Id.
0011'5
38
48. 98 N.J. at
, 486 A.2d at 1220.
49. 98 N.J. at
, 486 A.2d at 1222, citing 310 New Eng. J.
Hed. 955.
SO. 98 N.J. at ___ , 486 A.2d at 1222. Informed consent can
be implied in certain instances involving emergencies and patient
unconsciousness. See
Conroy, 98 N.J. at ___ , 486 A.2d at 1222,
and cases cited.
51. 98 N.J. at ___ , 486 A.2d at 1223.
52. Id.
53. Id.
54. Id.
55. Id.
56. 98 N.J. at
, 486 A.2d at 1224.
57. Id.
58. 98 N.J. at
486 A.2d at 1225.
59. 98 N.J. at
486 A.2d at 1229.
60. Id.
61. 98 N.J. at
62. 98 N.J. at
63. 98 N.J. at
-·
486 A.2d at 1231.
486 A.2d at 1232 (emphasis added).
486 A.2d at 1232.
64. Id. (emphasis added).
65. 98 N.J. at
486 A.2d at 1232.
66. 98 N.J. at
4~6
A.2d at 1233.
67. 373 Hass. 728, 370 N.E.2d 417 (1977).
00106
39
68. 373 Mass. at
69. 373 Mass. at
70. 373 Mass. at
71. 373 Mass. at
__ ,
__ ,
__ ,
370 N.E. at 426.
370 N.E. at 425-26.
370 N.E. at 431.
, 370 N.E. at 432.
72. 156 N.J. Super. 282, 383 A.2d 785 (Co. Ct. 1978).
__ ,
__ ,
__ ,
73. 156 N.J. Super. at
74. 156 N.J. Super. at
75. 156 N.J. Super. at
383 A.2d at 787.
383 A.2d at 788.
383 A.2d at 789.
76. 376 N.E.2d 1232 (Mass. App. Ct. 1978).
77. Mr. Candura's daughter was seeking to be appointed as
guardian to effectuate consent to the surgery.
78. The court refused to find legal incompetence based on
the fact that she had earlier vacillated in her resolve to refuse
the operation.
79. 376 N.E.2d at 1235.
80. I d.
81. Id.
82. Id. at 1233.
83. 362 So.2d 160 {Fla. App. 1978).
84. Id. at 163.
85. Id.
86. Id. at 164.
87. Id. at 162.
88. 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y. Supp.2d 266 (App.
00107
40
Ct. 1981).
89. 52 N.Y.2d at ___ , 420 N.E.2d at __ , 438 N.Y. Supp.2d at
275.
90. 52 N.Y.2d at __ , 420 N.E.2d a t _ , 438 N.Y. Supp.2d at
280-81.
91. 147 Cal. App.3d 1006, 195 Cal. Rptr. 484 (App. Ct.
1983).
92. 147 Cal. App.3d at
195 Cal. Rptr. at 490.
'
93. 147 Cal. App.3d at
195 Cal. Rptr. at 489.
'
94. 147 Cal. App.3d at
195 Cal. Rptr. at 493.
'
95. 147 Cal. App.3d at
195 Cal. Rptr. at 488.
'
96. 147 Cal. App.3d at
195 Cal. Rptr. at 491.
'
97. 147 Cal. App.3d at
195 Cal. Rptr. at 492.
'
98. 147 Cal. App.3d at
195 Cal. Rptr. at 493.
99. Courts in other states have also emphasize this need.
100. 147 Cal. App.3d at
t
195 Cal. Rptr. at 493.
101. 40 Conn. Sup. 127, 482 A.2d 713 (Sup. Ct. 1984).
102. 40 Conn. Sup. at
'
482 A.2d at 722.
103. 209 Cal. Rptr. 220 {App. Ct. 1984).
104. Id. at 223.
105. This assessment was indeed accurate as Mr. Bartling
died the day before the appellate decision was rendered.
106. Id. at 223.
107. Id. at 223-24.
0011~
41
108. 18 Mass. App. 200, 464 N.E.2d 959 (App. Ct. 1984).
109. 18 Mass. App. at
__ ,
464 N.E. at 963.
110. 602 F. Supp. 1452 (D. D.C. 1985).
1 1 1 • Id. at 1453.
112. Id. at 1454 (citations omitted).
113. Id. at 1455.
114. Id. at 1456.
115. 452 So.2d 921 (1984).
116. See Nartyn & Jacobs, Legislating Advance Directives for
the Terminally Ill: The Living \vill and Durable Power of
Attorney, Neb. L. Rev. 779, 7HH.
117. 452 So.2d at 926.
118. Id.
119. 498 F. Supp. 1038 (S.D. Tex. 1980).
120. Id. at 1048.
001ft9