SUBSTITUTED-JUDGMENT:
L E G A L F I C T I O N AMD E T H I C A L F A C T
C . EDWARD
CRESWELL
SUBSTITUTED JUDGMENT:
LEGAL FICTION AND ETHICAL FACT
Law: 711
Prepared for* Professor David Cummins
By: C. Edward Creswell
72
I.
INTRODUCTION
Legal ethics, as an academic and professional object
of study, is normally concerned with the development of a
genteel, mutually supportive, relationship within and among
three specific groups:
lawyer and client.
lawyer and lawyer, lawyer and the court.,
There is an unspoken assumption that,
when these relationships are conducted in the spirit of the
overall professional ethic, a fourth relationship, that
between the legal profession and society, will be adequately
protected.
While such a scheme can suffice, when judicially
enforced, to Impose a minimal level of conduct on members
of the legal profession, it does not require adequate
preparation for consideration of ethical questions beyond
its immediate scope.
In particular, nothing in the education
of the lawyer, or the judge, is designed to prepare that
individual for the variety and intensity of the ethical
issues raised in cases concerning the termination,
or
inception, of life-prolonging treatment of the terminally
ill Incompetent.
As recent litigation has demonstrated,
these are the kinds of hard cases which make bad law.
Initially, a necessary distinction
and ethics must be drawn.
between morality
It was once observed that "only
historians can mention Medes without mentioning
Persians
It is equally true that many cannot speak of morality without
appending ethics.
In fact, they are in nowise identical,
and each deserves a more discriminating evaluation.
/»>i-
Morality is the study of the framework within which
humans are to conduct themselves in relationship to a deity,
That deity is the lawgiver and the ultimate judge.
A typical
moral code, familiar to most, is the Judaic law as summarized
in the ten commandments,
Those commandments draw their
authority, not from an analysis of social requirements, but
from a divine lawgiver.
They are purportedly eternal,
Immutable, universal, and non-negotiable.
While interpreta-
tions of the code are permitted by those granted authority
through ordination, the purpose of that interpretation is
to teach the community how best to adapt to the law, not
to structure the law in terms of cultural norms.
Ethics, conversely, is the study of right and wrong
behavior in terms of the needs of society for a corporate
life structure beyond mere survival.
Because the perspective
is the effect of behavior upon other within the culture
rather than upon a deity , the standards are subject to
examination and revision, as the society deems appropriate.
While most societies incorporate such prohibitions as those
against killing, theft, and slander, these are the result
of human perceptions of the "right" and not the result of
divine command.
Morality, simply defined, is based upon a essentially
religious perception of good and evil.
The function of the
law in such a culture is to promote the good, limit the evil,
and thereby placate the divine lawgiver.
Ethics lacks such a theistic orientation and its
attendant rigidity.
Since it is concerned with categories
of right and wrong from a pragmatic stance, it has much
more the character of "law" as generally perceived.
Having posited the development of ethical standards
as a necessary function of society, the issue becomes one
of filling the role of lawgiver and interpreter, once
filled by the priest.
Historically the churches of western
societies have heavily influenced the states in the definition
and application of morals-cum-ethics.
The theory of the
monarch as representing God through a peculiar annointing
found a ready adaptation in the theistic society of
Massachusetts Bay.
As the ecclesiastics lost authority in an increasingly
pluralistic United States, the States and the Federal
government assumed the functions of lawgiver and enforcer.
The legislatures and the courts inherited the peculiar
functions.
The former acting through legislation, and the
latter through traditionally recognized processes applied
to issues which would have been unadjudicated had the courts
not accepted those matters which fell to them by default.
Judge Cardoao observed nearly sixty years ago that
the scope of judicial responsibilities was vast and complex.
Further, that the courts were uniquely situated to serve
the nation through accepting otherwise undesignated responsibilities.
You may say that there is no assurance that judges
will interpret the mores of their day more wisely
or truly than other men. I am not disposed to deny
this, but in my view it is quite beside the point.
-3-?5
The point is rather that the power of interpretation
must be lodged somewhere, and the custom of the
constitution has lodged it in the judges. If they
are to fulfill their function as judges, it could
hardly be lodged elsewhere. Their conclusions must,
indeed, be subject to constant testing and retesting,
revision and adjustment; but if they act with
conscience and intelligence, they ought to attain
in their conclusions a fair average of truth and
wisdom. 1
This being true, how do the courts arrive at that
"fair average of truth and wisdom" in an age where, as one
observer has notedj "At long last, we are beginning to
o
ask, not can it be done, but should it be done."
The
explosion of medical technology, with its expansion of
possible choices, places those who make choices for
another under a duty to prepare themselves to act on a
basis of acquired wisdom rather than relying on an
assumed competence.
II.
THE LIMITS OF LOGIC IN THE APPLICATION OF LAW.
There is an increasing awareness of the limits of
simple logic in an attempt to provide justice in an era
of novel and difficult issues.
Mr. Justice Holmes noted
that logic was a seductive process which could always
be claimed as the starting point for a judicial decision.
The language of judicial decision is mainly the
language of logic. And the logical method and
form flatter the longing for certainty and for
repose which is in every human mind. But certainty generally is illusory, and repose Is not
the destiny of man. Behind the logical form
lies a judgment as to the relative worth and
importance of competing legislative grounds,
often an inarticulate and unconscious judgment.
/O
It is true, and yet the very root and nerve of
the whole proceeding. You can give any conclusion
a logical form. You can always imply a condition
In a contract. But why do you imply It? It is
because of some belief as to the practice of the
community or class, or because of some opinion as
to the policyj or, in short, because of some
attitude of yours upon a matter not capable of
exact quantitative measurement, and therefore,
not capable of founding exact logical conclusions, 3
Recent developments in medical technology clearly
sustain the wisdom of Justice Holmes® observation.
His
philosophy, if adhered to, would be most helpful to the
courts in a world where the ability to artificially continue
bodily functions has made traditional definitions of death
obsolete,2*
without concurrently reversing the progress of
5
fatal diseases or the ravages of total physical Injury.
Pure logic, applied to a modern hypothetical situation,
could necessitate a doctrine of constructive death or,
conversely, of constructive resurrection.
John Doe is
on a life support system but qualifies for separation
from it under the "brain death" criteria.
and John recovers.
It is withdrawn
Logic requires that the courts either find
that John was not in fact dead or that he has taken on a
new legal existence.
The public and the courts must come to accept the
reality that has been created by modern medicine:
the inevitability that someone must be put in the
position of allocating death through the withdrawal
of supportive techniques. 6
These cases are not susceptible to simple logical
analysis and adjudication.
There are competing interests
to consider including one proponent's desire that the court
exempt a human life from the State* s interest in the
J^i
preservation of life.
One commentator has described the
situation as follows:
Though the specific problems are new, they are like
older problems in that they provoke value questions
similar to those which have been raised and resolved
in the past. The question, however, In each case is:
in terms of societlcal values, which cases are ' like'
which others? If one is justified in killing a young
adult because he is mentally retarded, can one be
justified in refusing life-saving treatment to him
for that reason? If one is not justified in refusing
life-saving treatment to a young adult because he is
mentally retarded, can one be justified in refusing
such treatment on those grounds to a neonate? On the
other hand, if one is justified in aborting a fetus
because amniocentesis shows it to have Down's syndrome,
are we then justified in killing a neonate with Down's
syndrome?
The genius of common law decision making is that it
must deal with contending analogies in attempting to
draw from the decisions of the past, is that this
act is performed in a public forum which invites
societal criticism of the process and its end product. 7
The acknowledged difficulties of the application of
the law to such unique and individually significant cases does
not relieve the courts of their recognized responsibility to
recast the issues into viable legal findings.
Whether or
not such tribunals are particularly suited by training or
inclination to perform that function Is another question.
In fact:
"Decisions will have to be made by human
agencies as to who shall continue to live and who shall not,
or, which is t& say the same thing, how shall death be
allocated, at liast among the seriously ill, the badly
Injured, and the elderly."^
Although the author of that
assessment did not include the incompetent, it is that class
of persons who thus far have borne the brunt of judicial
consideration of the factors producing such decisions.
78
-6
The unfortunate though understandable result of
recent litigation has been a series of decisions founded
upon varying factors, with predictably inconsistant
solutions.
In fact, several cases have demonstrated a
startling paucity of either a basic knowledge of ethics,
or a surprising Ignorance of the law as interpreted by the
Supreme Court, or a willingness to Indulge in language
vague enought to remove entire classes of persons, not
before that court, from those persons whom the State
has an interest in protecting.
The one consistant theme in the four cases studied
in this paper is a uniform Insistence upon the prerogative
of the courts to be the ultimate source of decision.
Since
society perceives this as a legitimate role of the courts,
their position has merit.
Whether or not the courts have
prepared themselves to adjudicate such complex and ethically
convoluted issues has yet to be determined.
There is some
evidence that in several cases, they have not.
Ther are no inherently logical solutions for the
cases presented in this genre.
Absent such ..tools of logic,
the courts have resuscitated the doctrine of substituted
judgment, an eminently illogical doctrine in this context.
Under this teat the judge, either alone or with such advisors
as he chooses to heed, makes a determination based upon the
values and desires of the incompetent.
He therefore substitutes
his judgment for that of the incompetent in order to inform
himself of the wishes of the incompetent.
At the risk of
providing a simplistic interpretation, it would seem that
the judge who is not truly capable of mirroring the mental
and ethical state of an incompetent is providing himself
with a standard for decision which he would not accept from
another.
On the other hand, if he can truly put himself
in the place of the incompetent, one is Impressed at his
ability to empathize with one so far withdrawn from himself.
Even with its inherent illogicality and obvious
limitations, courts have unhesitatingly accepted the
substituted judgment test.
III.
SUBSTITUTED JUDGMENT AS THE INCOMPETENT^ INFORMED CONSENT.
The legal basis for the doctrine of substituted judgment
is more than 160 years old.
A Lunatic, 9
an
In Ex Parte Whit bread in re Hinde,
English court substituted itself for a
mentally ill person in order to engineer a gift from the
person's estate to one whom the patient owed to duty of support.
In City Bank. Farmer's Trust Co. v. Mcgowan1^
the Supreme
Court described the role of the court in such a case as
to "don the mental mantle of the i n c o m p e t e n t . " T h e
continuing determination of the courts to perform this
feat was exemplified in the 1969 case of Strunk v. Strunk 12
in Which the Kentucky Court of Appeals found a court of
equity had the {jurisdiction to permit the transplant of
a kidney Irom an incompetent to a twin brother.
The
rationale constructed was that the nature of the relationship
indicated that both would benefit from the procedure, and the
-8-
o
00
court could assume that, this being true, the incompetent
13
would otherwise consent.
Perhaps the major difficulty with the doctrine of
substituted judgment is its patent artificiality,
based upon an obvious fiction.
It is
In cases where committees
and advisors are solicited by the court, it merely connotes
a committee of people equally incapable of truly representing
the wishes of the incompetent.
A competent, rational,
well-informed jurist is patently incapable of donning
"the mental mantle of the incompetent," but the fiction
serves a purpose.
It permits a resolution of cases in
a manner desitfed by the court but for which no precedent
exists or which, if the rationale were clearly stated,
society would reject it.
sought are not Just.
This is not to say that the goals
The obverse is that the court is
allowed to use a stratagem for an acknowledged good end
without having to perform the extremely complicated reasoning
processes which this sort of case deserves.
There may well be great and good reason why the
estate of an Incompetent should provide income to a person
to whom no obligation was owed.
But the reason is more
likely to deal with the court* s concept of equity than
relate to the ability of the judge to speak through the
mouth of a "lunatic."
Physiology Is a documented field of medicine which
haie accumulated ®«nh information about the rejection of
kidney transplants.
One competent child will die without
a transplant^ his incompetent brother is an ideal donor.
8 I
The ethical issue is that of diminishing the probable
life span of the incompetent in order that his unimpaired
brother may live.
It is a traumatic and painful situation
for all involved.
There are two fictions in the decision
s
trunk v» Strunk;
the first is that the judge could, In
fact (and he was finder of fact), place himself in the
mind of the donor.
The second is that there was not a
covert judgment as to quality of life made.
No matter
how close the relationship was, (ahd the publicity attendant
on the case indicated it was very close), would one
seriously maintain that, even with a close relationship,
and the parent's fervent consent, the judge would have ordered
a transplant from one competent brother to another?
Such cases demonstrate that the issue created by
the substituted judgment test has two aspects.
First of
all, is it an intellectually defensible doctrine?
Secondly,
Is it not capable of use in order to achieve a result
not otherwise available to the court?
If it is the latter,
it would merely seem to be a short cut to a result which
may be a good result, hut for which no proper foundation
can be laid.
In classic ethical terms, the question
remains, does the end justify the means?
Perhaps it does?,
but the means are nonetheless artificial and deceptive.
These questions must be considered in the light of
the magnitude of the power that is being exercised on behalf
of the incompetent, founded not upon theory, but upon the
Constitution and its safeguards for individual privacy.
The action for which the court's judgment is substituted
is that of the incompetent to provide an informed consent
for the beginning or cessation of a specific medical regimen.
There is no indication that the right of privacy
is limited by the incompetency of the individual.
The
right Itself, and its relationship to medical treatment,
is clearly spelled out for the competent patient.
Informed consent is based upon a general right to
"bodily self-determination"1^
according to a ruling by
the Supreme Court as early as 1 8 7 0 in Union Pacific Railway
1R
Co. v. Botsford.•L)
More recently, in Roe v. Wade
16
that Court defined a right to privacy in relation to a
right of access to abortions.
That case was an extension
of the right as articulated in Gr is wold v. Connecticut"1^
finding a right to marital privacy, although not expressly
provided In the Constitution, within a penumbra created
by other enumerated rights.
The competent adult is free to reject treatment
even when death is invited by such a refusal.
Courts will
generally not require a competent adult to accept unwanted
treatment since: such an imposition is a violation of that
•t o
aaticulated right.
Members of Jehovah's Witnesses refuse blood transfusions
with regularity>J-9 and
a Pennsylvania court found that mere
commitment to a state hospital for treatment for schizophrenia
<*id not render & person incompetent to refuse consent for
surgery. 20
-11-
Most courts would be In substantial agreement with
the language in a i960 Kansas case, Nat as on v. Kline2-'
to the effect that:
Each man is considered to be master of his
body, and he may, if he be of sound mind,
expressly prohibit the performance of life-saving
surgery or other medical treatment, A docter
may well believe that the operation is desirable
or necessary, but the law does not permit him
to substitute his own judgment for that of the
patient by any form of artiface or deception, 22
There is no inconsistency In the court* s prohibition of
the supplanting of the judgment of a competent person with
the substituted judgment of the physician.
Such an act
would be a clear intrusion on the rights of the patient.
In cases of the incompetent, however, the courts are willing
to utilize the doctrine, and the question in several cases
has become, whose judgment is to be substituted for that
of the patient?
Four significant cases have been litigated In the past
five pears| in each of them the court utilized the substituted
judgment test, with varying results.
En toto, they demonstrate
the current postures of three jurisdictions.
Karen Quinlan,
Josephy Saikewiez, Brother Fox, and Earle Spring have each
had the judgment of the court applied to their roughly
similar conditions.
The results have been, at best, uneven.
Each of these cases will be examined, not for faultfinding but for a demonstration of the limits of the doctrine
and the apparent; results of the limited ethical resources
available to the several courts.
-12-
84
IV.
KAREN QUINLAN, THE QUASI-JUDICIAL COMMITTEE.
On 15 April 1975, Karen Quinlan ceased
two fifteen minute periods.
breathing for
On her arrival at the hospital
she was unresponsive to deep leveles of pain.
Three days
later she was examined by a Dr. Morse who found her comatose
with evidence of decotication, (a condition related to
derangement of the cortex of the brain).
At that time she
required the services of a mechanical respirator.
Her father requested appointment as guardian over her
property with special power to terminate all extraordinary
procedures for life-sustaining purposes.
Court of New Jersey, Chancery Division,2-^
The Superior
denied guardianship
over her person and Mr. Quinlan appealed.
oh.
At the subsequent trial, In re: Quinlan,"-
Dr. Morse
testified that the patient was in a "chronic, persistent,
vegetative s t a t e . " £ j r t
pi U m,
a
neurologist, described
her as a "subject who remains with the capacity to maintain
the vegetative parte of neurological
26 function but who no
longer has any cognitive function."
None of the expert witnesses would classify Karen as
"brain dead" under the Harvard Medical School criteria/^
Each testified that a withdrawal of life-support equipment
would constitute a violation of their medical ethics.
The physicians offered a joint opinion that Karen
could not survive long without the respirator and that
she was in a comatose, chronic and persistent "vegetative
state, with no awareness of anyone or anything around
her, existing only at a primitive reflex level." 98
On the basis of their testimony the Court found
that Karen had suffered brain damage with the results
indicated, that no known treatment was available, and that,
according to present skills, she could never be restored to
cognitive or sapient life,
A notable aspect of the case was the consideration
given to the amicus curiae
brief filed by Bishop Lawrence
Casey, speaking for the New Jersey Catholic Council in
support of Mr. Quinlan's moral position.
Bishop Casey denied the competence of the Church
to determine the fact of death in any particular case
from any moral principle, casting that burden upon the
medical community, but apparently accepting the medical
29
opinion that Karen was, in fact, a l i v e . H e
clearly
distinguished the difference between the matter in issue
and euthanasia, quoting Pope Pius XII's "allocutio" and
insisting that the physician has no rights apart from
the patient.
Further, there is no unvarying responsibility
to resuscitate as a mere means to preserve life in the
face of a demonstrably negative prognosis.
Observing that competent medical testimony had
established that Karen had no reasonable hope of recovery
by means of the mechanical resplirator, he offered the
opinion that such a machine constituted "extraordinary"
measures which this clinicians had no moral obligation to use
and, thererore, Mr. Qulnlan's petition was not objectionable
to the Roman Catholic Church.
Considering the State interest in preserving life
as a general proposition in relation to Karen's condition.,
the Court
found that: "She will never resume cognitive
life . . . she is grossly incompetent and we cannot discern
her supposed choice based on the testimony of her previous
31
conversat ions,"
The State's interest, according to the panel,
diminished and the patient's right to privacy increased in
proportion to the intrusion considered.
"Ultimately, there
comes a point where the individual's rights overcome the
State interest."32
We have no doubt, in this unhappy circumstance,
that if Karen were herself miraculously lucid
for an interval, (no altering of the existing
prognosis of the condition to which she would
soon return), and perceptive of her irreversible
condition, she could effectively decide upon
discontinuance of the life-support apparatus,
even if it meant the prospect of a natural
death, . . . No external compelling interest
of the State could compel Karen to endure
the unendurable, only to vegetate a few
measurable months with no realistic possibility
of returning to any semblance of cognitive
or sapient life, 33
Citing Roe and Grlswold, the Court found the rightto terminate treatment as incident to the right of privacy.
Such a power could not be discarded simply because she was
unable to exercise it, but rather: "The only way to prevent
destruction of the right is to permit the guardian and
family of Kar^ft to exercise their best judgment, subject
to thefc ualifiSafcions hereinafter stated, as to whether she
would exercise it in these circumstances."3^
One of the qualifications had to do directly with
the role of the physician in the decision-making process.
While noting the reality that fear of civil or criminal
liability is a factor in some medical decisions, the
court specifically refused to extend any particular
immunity to the actors.
It did quote with approval
Lord Coke's position that jurists "are only to make
an accounting to God and King."^
Perhaps the Court
was suggesting that the immunity provided the justices
was an added reason for restricting decisions to that
body, but the rest of the opinion regarding medical
committees does not support that assumption.
Doctors . . , must be guided by what they do know,
the extent of their training, their experience,
consultation with other physicians, must guide
their decisions in providing care to their patients.
The nature, extent, and duration of care by societal
standards is the resnonsibility of the physician.
The morality and conscience of our society places
this responsibility in the hands of a physician.
What justification is there to remove it from
the control of the medical profession and place
it in the hands of the courts? 36
The court then insisted that such concepts of
distribution of responsbility must yield in matters
"clearly justiciable" and the power of the court to
re-examine issues of human values and rights may not be
pre-empted by such processes.
"Determinations as to
these must, in the ultimate, be responsive not only to the
concepts of medicine but also to the common moral judgment
of the community at large.
Court
In the latter respect, the
has a nondelegable judicial responsibility."The
judiciary is bound to respond to such cases with "its
most informed conception of justice in the previously
unexplored circumstances presented to it.
18
While claiming exclusive authority, the Court did
not claim exclusive wisdom, adopting as Its own much of
a suggested ethics committee structure developed by Doctor
Karen Teel.
Such a committee would be interdisciplinary
and may include historians, sociologists and theologians
as well as physicians.
According to Dr. Teel, a great
value of the committee would be that "such an entity
could lend itself well to an assumption of a legal statufe
which would allow courses of action not now undertaken
because of the concern for liability."'*0
Such a commltteee seems to be a response to a situation
described by the Court as "almost judicially noticable
that human decisions agaist resuscitative or maintenance therapy
are frequently a recognized de facto response in the medical
world to the irreversible, terminal, palnridden patient,
especially with familial consent, and these cases are far
short of brain death."^
The Quinlan Court appeared to treat such a committee,
however amorphous, as a quasi»judicial body.
It provided
no directions as to qualifications, composition, or conduct
of deliberations.
As a general practice, in cases not otherwise
justiciable, such a committee's deliberations would not
routinely* be subject to review, since such review would be
"a gratuitous encroachment upon the medical profession's
field of competence."
h2
The matter delegated is prognosis.
If the prognosis
is restricted to the reasonable possibility of return
to cognitive and sapient life, as opposed to forced continuation
of biological existence, the Committee is deemed adequate
to r«eolve the matter.
Particularly:
If that consultative body agrees that there is no
reasonable possibility of Karen's ever emerging
from her present comatose condition to a cognitive,
sapient state, the present life-support system
may be withdrawn and said action shall be without
any civil or criminal liability therefore on the
part of any participant, whether guardian, physician,
hospital, or others. 43
Extending their ruling^ the majority stated "by
the above ruling we do not intend to be understood as
implying that a proceeding for judicial declaratory relief
is necessarily required for the implementation of comparable
decisions in the field of medical practice."^
On the one hand, the Court found it had a nondelegable
responsibility to examine and review decisions involving
human values and rights.
Apparently, it considered that
duty discharged in the class of cases represented by Karen
Quinlan.
One can easily see the value of an interdisciplinary
panel in such situations, but can the Court with equanimity
charge that body with the authority of life and death
decisions for patients who possess the same rights as the
panel?
If the interest in the preservation of such lives
is removed froi the State, is such a body an appropriate
n f W JB^ttifest-ing that state action?
•
i a
vo
The construction of such committees with Inherent
powers to act as well as to deliberate, without further
reference to the courts is capable of significant abuse.
There is a serious threshold ethical question raised
by the assumption that there can ever he a standard operating
procedure, under the aegis of the judicial system, for
taking actions expected to result in the death of an
incompetent.
V.
SAIKEWICZ, NO COMMITTEES NEED APPLY.
Superintendent of Belchertown State School v. Saikewlcz,2^
a Massachusetts case litigated in 1977 provided the Supreme
Judicial court of Massachusetts with a case similar to Quinlan
but far from Identical.
Joseph Saikewicz was a sixty-seven year old man
with an IQ of 10 and the mental age of two years, eight
months.
He had been & Life-long resident of state institutions
for the retarded and was incapable of verbal communication.
In April, 1976, he was diagnosed as having acute myeloblastic
monocytic leukemia, an incurable disease.
The only known
threapy was chemotherapy with predicable side effects of
pain, anemia, loss of hair, bone marrow destruction and,
possibly, deaths
Given Saikewicz's condition, physical restraints
would probably have been required during treatment and,
if not treatedj his prognosis was death in a few months.
Based upon the opinions of the physician and
the guardian ad litem, the probate court prohibited the inception
of the treatment in May.
The judge found the expected
benefits of the therapy to be increased life expectancy,
and the fact that most competent persons would opt for
the treatment.
These, he felt, were outweighed by
factors unique to the case.
Age, inability to understand
the nature of the treatment, the low possibility of
remission, and the quality of life were felt sufficient
46
to justify a decision to withhold the treatment.
An
immediate appeal was taken to the Supreme Judicial Court
which affirmed the lower court*s decision on July 9, 1976
stating that a full opinion would follow.
Saikewicz died
"without pain or discomfort" on September 4, 1976 and
the Court issued its opinion in November, 1977•
The Court discerned three basic issues to be resolved:
The nature of the right to refuse potentially life-prolonging
treatment, legal standards for making the decision for an
incompetent, and procedures to be followed for that
47
purpose.
Finding that "the substantive rights of the competent
and incompetent persons are the same in regard to the
48
right to decline potentially life-prolonging treatment,"
the Court restricted medical decisions and opinions as such
to be not contfolling, but worthy of consideration for the
"insights" they may provide to the court.
The Staiet s interest in preserving life was qualified
by "the
interest
of an individual
reject
the traumatic
49
cost
of that
prolongation,"
' and to
the
diminishment
of
-20-
Op
that interest when the issue is not "whether, but when,
for how long, and at what cost to the individual that
life may be briefly
extended."50
The interest of the State in the welfare of
third parties, as well as in preventing suicide were
found to be irrelevant to the case.
Addressing itself to the State concern with the
maintenance of medical ethics, the Court held:
,
Recognition of the right to refuse necessary
treatment in appropriate circumstances is consistwith existing medical mores; such a doctrine
dloes not threaten either the integrity of the
medical profession, the proper role of hospitals
in caring for such patients, or the State's
interest in protecting the same. 51
Those interests and ethical concerns were ruled
to have been adequately considered by the Probate
Court's acceptance of the medical opinion and Appelate
Court's opinion that the decision was in conformity with
the general view of the medical profession.
In defining procedures to be followed the Court
observed that "the value of human dignity extends to
53
both (the competent and incompetent),"
and, as a protector
of that value initially posed a "best interest" test
as a natural outgrowth of the parens patriae of the State.
This approach is found defective because of the obligation
of the State t© treat the individual wit*- the
"same
panoply of rights and choices it recognizes in competent
persons."
^
-21 -
93
Thus far the panel is on sound ethical grounds
in its insistence that the incompetent be treated as equal
before the law.
The mere production of statistics demonstrating
how a majority of competent persons similarly situated
would choose to be treated if in Sackewlcz's position was not
55
convincing, ' because:
Individual choice is determined not by the
vote of the majority but by the complexities
of the singular situation viewed from the
unique perspective of the person called on
to make'the decision. To determine that
the Incompetent must always bs subjected to
what many rational and intelligent persons
may decline is to downgrade the status of
the incompetent person by placing a lesser
value on his intrinsic human worth and
vitality. 56
The issue to be decided then, was how was that
undeniable right to be exercised by a person incapable of
asserting it.
The "reasonable person" test, commonly invoked in
cases of informed consent, was found to be inappropriate
because of its presumed objectivity.
Consequently, after
defining the goal as determining "with as much accuracy
as possible the wants and needs of the Individual involved."
The Court selected the substituted judgment test, conceding
the difficulties which it entailed.
In adopting the standard as appropriate, the
Court found tllfit both the guardian ad litem and the lower
<5ourt had properly acted to discover the actual preferences
and desires of the incompetent.
Insisting that "the value
of life under the law (has) no relation to intelligence
-22-
f>:
or social position,"^ the Court sharply dissented from
the lower court's language incorporating "the quality of
life possible for him even if the treatment does bring
about
remission,"
a s
a
factor in that court's decision.
Redefining the term, the Supreme Judicial Court suggested that:
Rather than reading the judge's formulation in a
manner that demeans the value of the life of one
who Is mentally retarded, the vague, and perhaps
ill-chosen term »quality of life' should be
understood as a reference to the continuing state
of pain and disorientation precipitated by the
chemotherapy treatment. 60
This was a useful and necessar distinction considering
the emotional content given that phrase by many.
In developing a procedure for future cases of this
nature, the Court affirmed the jurisdiction of the Probate
61
Courts,
with the proviso that, when appropriate, a guardian
62
ad litem would be appointed.
In all cases there must be a
judicial finding of incompetence^ and, if that condition
exists, the guardian ad litem shall be charged with
presenting all reasonable arguments for administration of
life-prolonging treatments and all viewpoints and fhalternatives will be "aggresively pursued and examined."
Finally,
"Should the probate judge then be satisfied that the incompetent
individual would, as determined by the standards previously
set forth, have chosen to forego
potentially life-prolonging
treatment, the judge shall Issue the appropriate order.
Concerning the value of testimony by ethics committees,
medical experts, and attending physicians, » w e believe it
desireable for a judge to consider such views when available and useful to the court," 66
Such activities, however,
are not required procedures.
We take a dim view of any attempt to shift the
ultimate decision-making responsibility away
from the duly established courts of proper
jurisdiction to any committee, panel, or group,
ad hoc or permanent. Thus we reject the approach
adopted by the New Jersey Supreme Court in the
Quinlan case of entrusting the decision whether
to continue artificial life support to a
patient's guardian, family, attending doctors,
and hospital * ethics committees.' 67
The Court emphatically found judicial control of
the entire process as not being a "gratuitous encroachment
on the field of medical expertise,"
ruling that:
rather, such questions of life and death seem
to us to require the process of detached by
passionate investigation and decision, that
forms the ideal on which the judicdal branch
of government was created. Achieving this
ideal is our responsibility and that of the
lower court, and is not to be entrusted to
any other group purporting to represent the
9
morality and conscience of our society,*
no matter how highly motivated or impressivelyconstituted. 68
The Sackewlcz Court came down firmly on the powers
Implicit in the judicial system to settle such Issues with,
or without, advice of specialists and committees.
The
standard used was to be the substituted judgement test
to determine the presumed values and desires of the
incompetent.
Although rejecting the quasi-judicial committees
of Quinlan, thi suggested procedure does leave room, for
consultation with non-judicial individuals,,
this leeway will be frequently exercised.
-24-
m
Hopefully
As the Court
suggested, these are eases of life and death.
A question
exists as to whether Judge Cardozo*s "fair average of
truth and wisdom" estimate is adequately manifested in
a process where the life of an incompetent can be put
at hazard by a lower court judge,
It is pos sible that
those charged with agressively presenting alternative
views at the hearing may fill the gap of the discarded
committee process, the Appelate Court must have considered
that aspect in designing the procedure.
It does provide
a basis for the judge's decision other than the opinion
of the guardian ad litem and one suspects that he would
welcome the "insights."
(S
VI.
BROTHER FOX, CURIOUSER AND CURIOUSER.
her,69
Brother Fox, legally styled In the Matter of Eliuysx,
was a sixty seven year old Roman Catholic monk who suffered
a hernia while gardening in August, 1979*
Duringp'corrective
surgery he suffered a heart attack and lapsed Into a coma.
r/
with evidence of brain damage.
Father Eic^ner, a friend
of long standing, had him examined by two neurosurgeons
who both expressed the opinion that he would never regain
consciousness*
Father Eichner then went to the hospital
and requested removal of the mechanical respirator.
The
administrator refused to remove it without a court order.
Father Eichner then requested appointment as guardian
with specific authority to discontinue the respirator.
testified at the trial that he had discussed the Quinftji
case with Brother Fox, as well as Pope Pius XII* s
\J (
He
*allocutio*
barring extraordinary efforts to sustain life.
Brother Fox had indicated, that should he find himself
in similar circumstances, he did not desire such measures
to be taken on his behalf.
Both of the attending surgeons and e. consultant
confirmed the diagnoses.
The District Attorney produced
a surgeon who testified that in one case a person In a
similar state had recovered.
Further, his opinion was
that Brother Fox's condition had not "absolutely sta^alized.
On the basis of the testimony, the Court held that
there was "no reasonable" possibility that Brother Fox
would return to a "sapient and cognitive state," and that,
if competent, he would himself order "a termination of
the life-supporting respirator. "71
On December 6th,
the court Issued the necessary order, which was immediately
appealed by the District Attorney.
On January 24th,
while the Appeals Court was considering the matter, Brother
Fox died.
The Appeals Court adopted the substituted judgment
test as the beat protection for incompetent patients and
found medical, legal, and procedural Issues to be resolved.
The medical issue was simply stated as prognosis,
to be demonstrated in court, using a "clear and convincing"
standard of p r e a f j 2
The legal issue was the imposition of substituted
judgment with the proviso that treatment could not be
terminated unless it could be demonstrated that the
patient would make the same decision if competent.
f\n
-2&IO
Interestingly, because not a factor in the case,
the Court offered its opinion of the value of "living wills."
Such a will, if executed when the person was competent,
and drawn up "when the patient contemplated the catastrophic
medical possibility which actually befell him" would
place his survivors in the role of simply "carrying out
the wishes of the patient, and therefore face no moral
73
dilemma."
The majority found Brother Fox's communications
with Father Eichner sufficiently determinative to
affirm the decision of the lower court, but formulated
a set of procedures to be followed in future similarcases involving persons in a chronic vegetative state.
1. Attending physicians must find the patient to
be terminally ill, in an irreversible, permanent,
vegetative coma, with remote chance of regaining
cognitive brain function.
2. The prognosis will be given, to the family or
hospital officials who may present it to a
hospital prognosis committee made up of
at least three competent physicians.
3. The committeee will accept or reject the
prognosis by a majority vote.
4. If confirmed, the seeking party may commence
court action for appointment as the guardian
of the incompetent to request termination of
the life-support system.
5. The Attorney General and the appropriate
District Attorney shall be Informed and
given an opportunity to intervene and
conduct their own examinations of the
incompetent.
6. A guardian ad litem shall be appointed.
7. The court shall determine the validity of the
prognosis by clear and convincing evidence.
A*0
liii
8.
The court shall determine that the patient,
if competent, would elect to terminate the
treatment in question.
9.
An order for discontinuance will be issued
with no criminal or civil liability for any
party.
This procedure appears to require both the prognosis
requirement of Sackewlcz and Quinlan, with a standard of
proof attached, and the standard for judicial application
of substituted judgment.
One might question the need
for the substituted judgment test after medical opinion
has already found the patient to belong to the class in
question.
There are cases which are so medically
predictable in their prognosis that automatic review
is not appropriate.
Unfortunately, the Brother Fox
court did not expand its committee beyond physicians,
thereby missing an opportunity to solicit a wider
scope of opinion.
The restriction of the medical prognosis to
medical personnel has the great benefit of clearly defining
the distinction between the medical questions, per se,
and the legal questions attendent upon substituted
judgment,
Startlingly, the court, in discussing persons
in a permanent vegetative comajsuggested that "as a matter
of established fact, such a patient has no health,
73
and, in a true Sense, no life, for the State to protect."
This reintroduces the "quality of life" issue permitting
the evaluation of the quality of a life in considering
its probable termination,
J
Furthermore, " . . . the State's interest
in preservation of the life of the fetus would appear
to be greater than any possible interest the State may
have in maintaining the continued life of a terminally
ill comatose patient , , . (their) claim to personhood
is certainly no greater than the fetus."
Such language will be hard to reconcile with that
of Mr. Justice Blackmun, writing the majority opinion
in ^oe v. Wade.''
The Constitution does not define "person" in
so many words, (citations omitted) But in
nearly all these instances, the use of the
word is such that it has application only
postnatally. None indicates, with any
assurance, that it has any possible preapplication.
All this persuades us that the word "person"
as used in the Fourteenth Amendment does not
include the newborn. J8
J'he Brother Fox opinion appears to hold that the
fetus, although not a person, has an equal claim upon
the State's duty to preserve life to
that of the vegetative,
comatose, incompetent.
Even while creating this confusion, however, the
court provided a procedural context for the termination
of life-prolonging treatment far exceeding any mandatory
steps in the abortion of a fetus.
There is no doubt of the Court's intent to
arrive
at a just conclusion in regard^ to Brother Fox, but it
demonstrate^o awareness for the ethical dimensions of
the problem.
Under the suggested procedures, a
-29-
person without family or friends could have the decision
made entirely by phsicians and lawyers (one in the
role of judge).
Ther are no legal requirements for
consultation with members of other disciplines, nor are
there any provisions for determining the ethical position
of the society at large.
"The assumption that physicians
and lawyers, two highly favored and elitist professions
can adequately represent the view of the man in the street
is paternalistic to a fault.
In the Brother Fox
scheme, the prognosis board is
restricted to that particular function and ethical
considerations which may be aired in that forum are not
required to be offered to the Court.
The judge then
finds the evidence as to prognosis clear and convincing,
listens to the guardian ad litem, and then proceeds to
substitute his judgment for that of the patient.
There
is no certainty, nor must it be demonstrated, that the
judge is capable of understanding the ethical stance and
value system of the patient;
in fact, he could be quite
hostile to the patient's presumed outlook,,
The legal/medical
vacuum created here, in response to the ruling that "such
a patient has no health, and, in a true sense, no life
for the State le protect," needs to be opened to the
views of persons just a little less sure of their own
Infallibility.
-30-
102
VII.
EARLS SPRING, THE LIVING END.
Three years after its holding In Saekewlcz,
the
Supreme Judicial Court of Massachusetts had another go
at the rights of the terminally ill incompetent, In the
79
Matter of Earle N. Spring,
concerned a seventy-nine
year old man with "end sta£e" kidney disease requiring
hemodialysis treatments three days a week.
He also
suffered from "chronic organic brain syndrome" or, as
the majority defined it, "senility."80
In November, 1973.,
his son filed a petition for appointment as conservator, and
in January he was appointed temporary guardian for his
father.
On the date of that appointment, the son and his
mother petitioned for an order to permit the termination
of the dialysis treatments as mere life-prolinging therapy.
.An appointed guardian ad litem filed a report and, on 15 May,
the lower court ordered the temporary guardian to refrain
from authorizing any further dialysis.
The guardian ad litem
immediately appealed and the order was stayed.
On July 2d, the probate court filed "Findings,
Rulings, and Orders for Entry of Judgment" directing thatj
"The ward's attending physician together with the ward's
wife and son are to make the decision with reference to
the continuance or termination of the dialysis treatment."^1
That order was &lso stayed, and the Appeals Court hear
Pp
arguments in September,
ultimately affirming the lower
court's order of July 2d.
-31-
m
J^
The guardian ad litem again appealed to
the Supreme Judicial Court which heard the case on Januarytenth
nineteen eighty.
Further clouding the issue, the
"guardian ad litem informed that court that there had been
no competency hearings in the case.
The Court issued its order on January lMth, and
published its opinion on May 13th, more than a month after
Mr. Spring's death, caused by "cardiorespiratory failure
due to arteriosclerotic heart disease," not related to the
patient's chronic renal failure of senility.
Since ruling in Sackewicz, this court had had
many opportunities to chart legal solutions for problems
created by medical advances.
It had ordered chemotherapy
for two minor leukemia patients over the objections of
the p a r e n t s o r d e r e d
involuntary hemodyallsis for
Oh
a prisoner, '* required a finding of "brain death" before
removal of a respirator from a murder
victim,and
issued an injunction against the involutary treatment of
*
^ 86
an incompetent mental patient with psychotropic drugfs.
Perhaps, due to its proximity to several of the
finest hospitals, medical schools and law schools in the
world, this Court has been forced to deal with more previously
unarticulated issues than any other.
corporate experience is vast.
In any event, their
The overall approach of
the Court was Instated in Spring, the next incompetent
seeking a decision, through a guardian ad litem,
-32-
104
A competent person has a general right to refuse
medical treatment in appropriate circumstances
by balancing the individual interest against the
interests of the state, particularly the State
interest in the preservation of life. In
striking the balance, account is to be taken of
the prognosis and the magnitude of the proposed
invasion.
The same right is also extended to the incompetent
person, to be exercised through a 'substituted
judgment' on his behalf. The decision should
be that which would be made by the Incompetent
person, if he were competent, taking into account
his actual Interests and preferences and also
his present, arid future incapacity.
The existence of ethics committes as potentially
useful to the Courts was remarked upon, with the caveat
that actual decision-making
delegated to that body.
authority could not be
"Again, we disapprove the
shifting of the ultimate decision-making responsibility
away from the duly established courts of proper jurisdiction."
In reaffirming Sackewicz, the majority distinguished
it from Spring
of the state.
on the basis that the former was a ward
Similarities were noted in that both were
held by the court to be incompetent, clearly alive and
conscious, suffering from incurably fatal disease with
no prospect of Sure or recovery of competence.
These
conditions Were weighed against the evaluation of the
proposed treatment in one case, ongoing therapy in the
other, as extremely intrusive and merely life-preserving.
fiie procedures to t>e followed in the future were
provided as follow :
-33-
105
Among them (factors to be considered) are at least
the following; the extent of impairment of the
patient's mental faculties, whether the patient is
in the custody of a state institution, the prognosis
without the proposed treatment, the complexity, risk
and novelty of the proposed treatment, its possible
side effects, the patient's level of understanding
and possible reaction, the urgency of the decision.,
the consent of the patient, spouse, or guardian,
the good faint of those who participate in the
decision,TRe~clarity of professional opinion as
to what is good medical practice, the interests of
third parties, and the administrative requirements
of any institution involved. 90
However, "our opinions should not be taken to establish
any requirement of prior judicial approval that would not
otherwise exist.
Interestingly, the Court may have subjected Itself
to a continuation of such litigation on an ad hoc basis
by the caveat that:
"Moreover, since the scientific
underpinnings of medical practice and opinion are in a
constant state of development, our opinion as to a
particular set of facts may not be a reliable guide to
proper solution of a future medical problem.
The criminal liability issue for physicians was
considered as being short on precedent as a basis for
judgment, but what precedent there is "suggests that the
doctor will be protected if he acts on a good faith
judgment that is not grievously unreasonable by medical
standards. "93
The consent of a guardian will probably suffice to
deter civil liability.
That guardian may exercise
substituted judgment, considering the actual values and
preferences of the incompetent,
94
but he has no duty
to present arguments which he does not believe meritorious, nor is there an obligation to take appeals as
qc;
a matter of course.-7-"
The utilization of the substituted judgment test
by the lower court, founded on the imprecise and unsubstantiated testimony of the wife and son, was specifically
approved.
The patient, according the the Court, had no hope
of mental improvement from the treatment, was confused
and uncooperative, and required heavy sedation during
treatment, although he had been rational enough to consent
to the inception of the regit^.
The order of the lower court ordering the temporaryguardian to refrain from authorizing any further life96
prolonging treatment was found not clearly erroneous.
On the other hand, the subsequent "Findings, Rulings
97
and Orders for Entry of Judgment"
order was sharply criticised,
vacating the prior
"Ultimate decision-making
responsibility Should not have been shifted away from
the probate court by delegating the decision as to
continuance or termination of treatment 98
to attending
physicians and
c
ne ward* s wife and son."
The case
was reversed mmI remanded on that issue
The language of this decision has several troublesome
aspects.
While denying that "quality of life" was a
factor in its deliberations, the Court found it significant
-351 A- /
J JJ I
that: "The treatment did not cause a remission of the
disease or restore him even temporarily to a normal,
cognitive, integrated, functioning existence, but merely
kept him alive."-'00
The choice of language is either
amazingly imprecise, or it correctly states a highly
questionable legal and moral position.
Without exaggeration
it can be argued that there is no requirement to keep
a person alive if the proposed treatment is not likely to
restore that person to a normal, cognitive, integrated,
functioning existence.
grated?"
What is "normal?"
What is "inte-
The definition could encompass the severely
retarded and the medically-dependent senile residents
of nursing homes.
If the Court intends what it implies, it has taken
a significant step in assuming the role of death allocation
in the selection of beneficiaries of mechanical medicine.
It may be true, as Qulnlari and Sackewlcz indicate,
that some classes in our society are excluded from the
interest of the State in the preservation of life.
so, the language of Spring is unnecessarily broad.
Even
A
decision to withdraw treatment on the basis of "normalcy"
conjures up recollections of a nation in the recent past
that used exactly that test to condemn untold numbers
of mental defectives, gypsies, and ethnic minorities
to death*
Thai result is certainly not the intent of
this Courtj for that reason, a greater care in determining
factors applicable to this sort of decision would seem
to be Indicated.
The substituted judgment standard is designed to
discern what the patient "wants."
Aside from the dialysis
treatment, Mr. Spring was senile.
Although the Court
found both the renal kidney syndrome and the senility
factor to be incurable and irreversible, neither caused
his death.
The decision indicates that senility may
justify the withholding of dialysis treatments, since
senility itself is incurable.
Under this ruling, is
the removal of insulin from a senile diabetic possible?
If senility is a factor in the witholding of treatment, is it equally a factor in the decision to forego
the beginning of treatment?
Can such decisions be
made on the substituted judgment test that the person
would not desire the therapy?
Such speculation leads
to a question as to whether the senile.^ in need of,
or receiving Intrusive medical care, are a class in which
the State has no life-preserving interest?
Such questions naturally follow the judgment of
the Court in this case.
The Court is either making a
significant decision regarding a large class of people,
or has inadvertantly used language which it will modify
at its next opportunity.
¥111.
CONCLUSM.
This line of cases has demonstrated that issues are
earning common for which the Courts have little precedent.
Such issues are emotion-laden and have ethical dimensions
-37109
M
either unperceived or disregarded by the Courts.
While
the courts have a primary responsibility to adjudicate
these cases, their frequent rejection of the input from
those schooled In the making of difficult ethical
decisions speaks more to their sense of place than
their sense of purpose.
Even the courts, with the
accumulated wisdom of the centuries, may not be permitted
to unilaterally chart society's course through the
allocation of medical resources and the determination
of whose life may be placed in hazard, and whose why
not.
The doctrine of substituted judgment lays an
impossible burden on the court.
It is a legal device,
unsupported by any philosophical, ethical, or behavioral
sciesicef analysis. It may be appropriate to resurrect
this fiction in order to make a gift from the estate
of a deceased incompetent^ extending it to cases of
potential death for the living incompetent may weil
strain it beyond its rational limits.
A distinction must be drawn between that theory
and the validity of actual medical prognosis.
The
physician doei riot substitute his judgment for that of
the patient; fte utilizes his knowledge and that of
his colleagues to arrive at a medically appropriate
decision, ba&fd^fche condition of the patient and the
limits of his craft.
i/
When that sort of evaluation indicates
that a certain class of patients are "hopeless" the
courts may accept their evidence to preclude'litigation
in later, i 4 m t
Lably similar, cases,
For those cases which do not fall into a discernible
class, judicial review Is not only appropriate, but the
duty of the courts.
Thus far, the courts have been content
to permit the probate courts to exercise primary jurisdiction,
observing varied standards of evidence, proof, and
procedure.
In the end, the judge invariably is permitted
to exercise substituted Judgment.
It is debatable just
how much of the current uneveness in opinions is due
to the commitment to the probate court (judge as the trier
of fact and law,
If the issues raised in these matters are, in any
sense, ethical issues, it would seem to be incumbent
upon the courts, not optional, to seek the counsel of
those who can represent the ethos
large.
of the community at
This can be done in one of several ways»
Trie several courts could set up ad hoc or
permanent committees whose membership would include
exponents of different views.
An evaluation by this
committee would be mandatory, although the court would
not be required to conform Its decision to it.
This
would, at least, insure that the judge has access to
a discipline for which he is not personally trained.
Alternatively, juries could be used at the lower
court hearings>5. representing a cross section of the
community.
Their role could be that of mere advisor
to the judge, and I would suggest that situation.
While
some of the nature of an adversary process is essential
-39-
1:11
for the incompetent's protection, little positive value
would rise from emotion-laden addresses to the jury by
the proponents.
Such juries, of course, would not be
the specialists of the committees, but the man on the
street assisting the court by providing, in microcasm,
society's evaluation of that particular case.
Alternatively, rather than alter the procedure,
the judges could be trained in enough basic ethical
thought to achieve the ability to incorporate ethical
factors openly in their decisions.
It may be said that
courts are judges of the law, and not seminary professors.
This is true, but they are now judging in areas where
there has been no law, and society may legitimately
expect that its ethical concerns will be a part of the
formation of the "new" law/.
There is no implication intended that judges are
personally unethical or intellectually deficient.
But
the decisions in Quinlan, Sackewicz, Brother Fox and
Spring demonstrate a general need for a greater ability
to recognize an ethical issue, evaluate it in the context
of the case, and incorporate it into the decision.
Perhaps & sounder foundation in ethics would
help judges avoid legal opinions divesting the senile
of his right to preservation of life, or even elevating
fetuses to the Status of the living, but incurably ilj^
person.
-40-
The courts freely assert their jurisdiction over
new and troubling aspects of our corporate life.
In
the case of the incompetent terminally ill, comatose
person, the courts perci^fcve themselves as defenders of
the helpless, which is their legitimate function.
Since
cases in these areas are going to increase, rather than
decrease, it would seem advisable that the courts
take some steps to either widen the basis of
decisions
through increased attention to voices outside the legal
and medical profession, or to qualify themselves to
make such decisions, not through a fiction, as
present,
-4l-
at
FOOTNOTES
1. B. Cardozo, The Nature of the Judicial Process 135-136 (1921).
2. Eisenburg, The Human Nature of Human. Nature, 1?6 Science
(1972).
at
3. Holmes, The Path of the Law, 10 Harv. L.R. 457, 465-466 (11897).
__
.
===== ~ =? 1
4. See generally Comment: Proposed State Euthanasia Statutes:
?TT!i'iITosophlcal and Legal'Analysis, T~Ho:fsTFaTT,,TT7 41'f
j, kJi .
T&975).
5. Id. at 117.
'
6. W. Manning, Legal and Policy Issues in the Allocation of Death,
The Dying Pa'€TentT 253,
7. Baron, Medical Paternalism and the Rule of Law; A Reply to
Dr. Relman;
Am. J. L. & Med. 337 ,
(1575)"
8. Supra, note 6 at 255-
V '
^
9. 35 Ertg. Rep. 878 (1816). — — —
1 0 . 323 U.S. 594
(1945).
^
11. Id, at 599.
12. ^145 S.W.2d 245 (Ky. Ct. App. 1969).
13. Id. at 257.
l4l U.S. 250 (1870).
-l^rfT '
16. 410 U.S. 1 1 3
17.
(1973).
3 8 1 U.S. 479 (1965).
18. Comment/*/1 Informed Consent and the Dying Patient, 83 Yale L.J.
1632 (197TH~~
' " =
= "
19. e.g. In re Osborne, 294 A.2d 372 (D.C. Cir. 1972).
20. In re Yetter, 62 Pa. D. & C. 619 (1973).
21. 186 Kan*. 393, 350 P.2d 1093
22. Id. at
(i960).
397.
23. 137 N.J. Sup. Ct. 227,/ 348/A.2d 801 (1975).
24. 70 N.J. 10,^335 A.2d 647 (1976).
J
y 3>
25.
Id. at 654.
26. Id
<y>
27. See_ Report of the Ad Hoc Committee of the Harvard Medical *
To Examine Definitions of BraTfrTDeatF,'"^ J.A.M.A. 85 (1968).
28. In re Quinlan, 70 N.J. 10, 335 A.2d 647, 655 (19?6).
29. Id. at 658.
30. Id. at 663.
31. Id. at 664.
* Xci ®
33. Id. at 663.
34. Id. at 664.
35. 12 Coke Rep. 23, 25, 77 Eng. Rep. 1305, 1307 (S.C. 1608).
36. In re Quinlan, 70 N.J. 10, 335 A.2d 647, 665 (1976).
37. Id.
38. Id. at 666,
39. K. Teel, The Physician's Dilemma: A Doctor's View, 2? Baylor
L.R^-6, 8-9 (1975).
~
"
40. Id.
41. In re Quinlan, 70 N.J. 10, 335 A.2d 647, 667 (1976).
42. Id. at 669.
43. Id. at 671 *
44. Id.
"
" ' -
7. Id, at 422, 423
48.
Id.
49. Id. at 425.
50. Id. at 426.
" " ,2d 417 (1977).
5 1 m Id. at 427.
52.
Id.
53*
Id.
Id. at 428.
55.
Id.
56.
Id.
57.
Id. at 430.
58.
Id. at 432.
59.
Id.
60.
Id.
X«
Id. at 432-433.
62.
Id. at 433.
63.
Id.
64.
Id.
65.
Id. at 434.
66.
Xu *
67.
Id.
68„
Id. at 435.
N.Y. App. DIv
69.
70.
(2d Dept., March 27, 1980)
dieted in 0< Annas, Quinlan, Salkewicz. and Now Brother Fox,
^otas^TnJi Center Report
9bO J,
X^ *
72.
Id ©
73.
Id.
74.
Id.
75.
M-
76.
Id.
4l<y U.S. u g
(.1973).
116
78.
id. at 4l8.
79.
405 N.E.2d 115 (Mass.
80.
Id. at 418.
81.
Id.
82.
399 N.E.2d 493, (1979)
83.
Custody of an.Minor /Mass. Adv. Sh.\2002, 379 N.E.2d 1053
(1978).
84.
Commissioner of Correction v. Meyer,'Mass. Adv. Sh. 2323,
399 N.E.2d 452 (1979)
85.
Commonwealth v. Golston, 373 Mass. 249, 252-256,
366 N.E.2d 744 (1977), cert, denied 434 U.S. 1039 (1.978).
1980).
4
7f
- - I/™1 '
y
86.
In re Boyd, 403 A.2d 744 (1979).
87.
In the Matter of Earle Spring, 405 N.E.2d 115, 119 (1980). ^
88.
Id.
89*
Id.at .120.
90.
Id. at
121.
91.
Id. at
120.
92.
Id. at
121.
93.
Id.
94.
Id.
95.
Id. at
96.
Id.
97.
Id. at 11 (,
98.
Id. at
99.
Id.
100.
Id. at
>
MfHj
'
^;
N
123.
Ji-. nt
0 .
tdtf*
A
118.
117
^
&
^