¹ Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977).

² See generally Note, Decision making for the Incompetent Terminally III Patient: A Compromise in a Solution Eliminates a Compromise of Patients’ Rights, 57 IND. L.J. 325 (1982) (citing a “tug-of-war” between the medical and legal forums).

³ See generally Baron, Assuring “Detached but Passionate Investigation and Decision“: The Role of Guardians Ad Litem in Saikewicz-type Cases, 4 AM. J.L. & MED. III (1978)Google Scholar; Baron, Medical Paternalism and the Rule of Law: A Reply to Dr. Relman, 4 AM. J.L. & MED. 337 (1979).Google Scholar

⁴ See generally Relman, The Saikewicz Decision: Judges as Physicians, 298 NEW ENG. J. MED. 508 (1978)CrossRefGoogle Scholar; Relman, The Saikewicz Decision: A Medical Viewpoint, 4 AM. J.L. & MED. 233 (1978).Google Scholar See also Buchanan, Medical Paternalism or Legal Imperialism: Not the Only Alternatives for Handling Saikewicz-type Cases, 5 AM. J.L. & MED. 97 (1979).CrossRefGoogle ScholarPubMed

⁵ In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), cert, denied, 429 U.S. 922 (1976) (court permitted a complex decision-making process involving guardian, physician, and a hospital ethics committee).

⁶ See, e.g., Saikewicz, 373 Mass, at 756, 370 N.E.2d at 433 (1977) (court determined to be final decision maker).

⁷ In re Dinnerstein, 6 Mass. App. Ct. 466, 380 N.E.2d 134 (1978) (court held that a decision could be made not to resuscitate terminally ill, vegetative patient in the event of cardiac or respiratory arrest; the decision did not require prior judicial approval).

⁸ See, e.g., Cantor, Quinlan, Privacy, and the Handling of Incompetent Dying Patients, 30 RUTGERS L. REV. 243 (1977)Google Scholar; Note, Family Law—Guardians of Incompetent Persons Can Refuse Life-Prolonging Treatment For Their Wards, 12 SUFFOLK U.L. REV. 1039 (1978); Buchanan, supra note 4.

⁹ See, e.g., Note, Choosing for Children: Adjudicating Medical Care Disputes Between Parents and the State, 58 N.Y.U. L. REV. 157, 185-86 n.140 (1983).

¹⁰ See In re Osborne, 294 A.2d 372 (D.C. 1972); In re Estate of Brooks, 32 III. 2d 361, 205 N.E.2d 435 (1963); Satz v. Perlmutter, 379 So. 2d 359 (Fla. 1980); Lane v. Candura, 6 Mass. App. Ct. 377, 376 N.E.2d 1232 (1978); In re Quakenbush, 156 N.J. Super. 282, 383 A.2d 785 (1978); Erickson v. Dilgard, 44 Misc. 2d 27, 252 N.Y.S.2d 705 (1962). See generally R., VEATCH DEATH, DYING, AND THE BIOLOGICAL REVOLUTION 116-63 (1976)Google Scholar.

¹¹ The constitutional right of privacy was developed in a series of cases concerning marriage and procreation, See Griswold v. Connecticut, 381 U.S. 479 (1965) (right of privacy, derived from the penumbras of several Bill of Rights guarantees, includes the right of married persons to use contraceptives); Eisenstadt v. Baird, 405 U.S. 438 (1972) (extends Griswold to include the right of unmarried persons to obtain contraceptives); Roe v. Wade, 410 U.S. 113 (1973) (states that the right of privacy includes a woman's decision to have an abortion). The right of privacy has also been applied to refusal of treatment cases. E.g., In re Quinlan, 70 N.J. at 40, 355 A.2d at 663 (the right of privacy encompasses a patient's decision to decline medical treatment under certain circumstances). See generally L., TRIBE AMERICAN CONSTITUTIONAL LAW 921-37 (1978)Google Scholar; Comment, Roe v. Wade fcf In re Quinlan: Individual Decisionmaking and the Scope of Privacy's Constitutional Guarantee, 12 U.S.F.L. REV. III (1977).Google Scholar

¹² The right to control one's body has long been recognized by the judiciary. See, e.g., Shfoendorffv. Society “of N.Y. Hosp., 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914) (“[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body“); see also Union Pac. R.R. v. Botsford, 141 U.S. 250 (1891) (a personal injury plaintiff cannot be compelled to undergo pretrial medical examination).

No medical procedure may be performed without the patient's consent, obtained after explanation of the nature of the treatment, the substantial risks, and alternative therapies. While this doctrine does not necessarily preclude court intervention to compel lifesaving treatment, it demonstrates the legal concern for bodily integrity. See generally Cantor, A Patient's Decision to Decline Life-Saving Medical Treatment: Bodily Integrity Versus The Preservation of Life, 26 RUTGERS L. REV. 228, 237-38 (1973)Google Scholar; Comment, supra note 11.

¹³ The right to autonomy comes within the constitutional right of privacy. See Whalen v. Roe, 429 U.S. 589, 599-600 (1977) (suggesting that the right of privacy includes “an interest in independence in making certain kinds of important decisions“). See generally L., TRIBE supra note 11, at 886-89Google Scholar; Gerety, Redefining Privacy, 12 HARV. C.R.-C.L. L. REV. 223 (1977)Google Scholar; Comment, A Taxonomy of Privacy: Repose, Sanctuary and Intimate Decision, 64 CAUF. L. REV. 1447 (1976).CrossRefGoogle Scholar

¹⁴ Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976); Leach v. Akron Gen. Med. Center, 68 Ohio Misc. 1, 426 N.E.2d at 813; In re Coyler, 99 Wash. 2d 114,660 P.2d 738( 1983). See generally Camor, supra note 12, at 236-42.

¹⁵ In,re Eichner, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266, cert, denied, 454 U.S. 858 (1981).

¹⁶ See, e.g., In re Estate of Brooks, 32 111. 2d 361, 205 N.E.2d 435 (1965) (previously competent adult without minor children claiming that blood transfusion would violate her religious beliefs may not be compelled to receive such a transfusion, even when approaching death has so weakened her faculties as to render her incompetent); see also In re Osborne, 294 A.2d 372 (D.C. 1972); Lane v. Candura, 6 Mass. App. Ct. 377, 376 N.E.2d 1232 (1978); In re Quakenbush, 156 N.J. Super. 282, 383 A.2d 785 (1978)Google Scholar; In re Melideo, 88 Misc. 2d 974, 390 N.Y.S.2d 523 (1976); In re Yetter, 62 Pa. D. & C.2d 619 (1973); L. TRIBE, supra note 11, at 934-37.

¹⁷ A third exception to the general right of competent patients to refuse treatment appears to arise in the prison context. But upon close examination, these cases also fall within the two traditional exceptions. In some cases, the prisoner was de facto incompetent, even though he was never formally adjudged to be incompetent. See Peek v. Ciccone, 288 F. Supp. 329 (W.D. Mo. 1968) (prisoner with chaotic and confused religious history was not permitted to reject tranquilizers). Cf. Haynes v. Harris, 344 F.2d 463 (8th Cir. 1965). In the other group of cases in which prisoners were not allowed to refuse treatment, the treatment was ordered to protect the welfare of others. See, e.g., Commissioner of Correction v. Myers, 379 Mass. 255, 264, 399 N.E.2d 452, 457 (1979) (though “incarceration does not per se divest [the prisoner] of his right of privacy and interest in bodily integrity,” hemodialysis ordered to maintain proper discipline and ensure welfare of others).

¹⁸ But cf. PRESIDENT's COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BlOMEDICAL AND BEHAVIORAL RESEARCH, DECIDING TO FOREGO LlFE-SUSTAINING TREATMENT: A REPORT ON THE ETHICAL, MEDICAL AND LEGAL ISSUES IN TREATMENT 123 (1983) [hereinafter cited as PRESIDENT's COMMISSION REPORT] (though infants and unconscious patients are generally deemed to lack decision-making capacity, mental impairments are not conclusive evidence of such incompetence). See also Rogers v. Okin, 634 F.2d 650, 657-59 (1st Cir. 1980).

¹⁹ In the case of Mary C. Northern, State Dept. of Human Servs. v. Northern, 563 S.W.2d 197 (Tenn. Ct. App. 1978), for example, the court ordered a 72-year-old who suffered frostbite and gangrene of her feet to submit to amputation of both feet to save her life. Ms. Northern had refused the surgery, insisting her feet would heal without treatment, but the court found her to lack the capacity to appreciate her condition or consent to the surgery. Id. at 209-10.

²⁰ Here the state is acting as parens patriae (in the role of a surrogate parent or guardian) on behalf of the patient's depedents. See Byrn, Compulsory Lifesaving Treatment for the Competent Adult, 44 FORDHAM L. REV. 1, 33 (1975)Google Scholar; Riga, Compulsory Medical Treatment of Adults, 22 CATH. LAW. 105, 131 (1976)Google Scholar; For example, in Application of the President and Directors of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir. 1964), the court ordered a blood transfusion for a 25-year-old Jehovah's Witness over her objections. The court emphasized the interest of the state in ensuring that the woman's seven-month-old child would not be abandoned. Id. at 1008. In Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson, 42 NJ. 421, 201 A.2d 537 (1964), cert, denied, 377 U.S. 985 (1964)Google Scholar, a court directed a woman 32 weeks pregnant to submit to a blood transfusion in the interest of the fetus. Id. at 424, 201 A.2d at 538.

²¹ 294 A.2d 372 (D.C. 1972).

²² See In re Osborne, 294 A.2d 372, 374 (D.C. 1972). But cf. U.S. v. George, 239 F. Supp. 752 (D.C. Conn. 1965) (court ordered a blood transfusion, since Jehovah's Witness patient stated he would not resist a court order).

²³ A technical exception should be noted. A court ordered a transfusion for an adult Jehovah's Witness, despite his objection, on the grounds that, though he would not consent to the transfusion, he had stated that he would not resist a court order directing it. U.S. v. George, 239 F. Supp. 752 (D. Conn. 1965).

²⁴ See McCartney, The Development of the Doctrine of .Ordinary and Extraordinary Means of Preserving Life in Catholic Moral Theology Before the Karen Quintan Case, 47 L IN ACRE Q. 215 (1980)Google Scholar (useless treatment is not morally required); B., ASHLEY & K., O'ROORKE HEALTH CARE ETHICS: A THEOLOGICAL ANALYSIS (1978).Google Scholar

²⁵ See JAKOVOVITS, JEWISH MEDICAL ETHICS 49–52 (1959)Google Scholar; ROSNER, MODERN MEDICINE AND JEWISH LAW 115–123 (1972).CrossRefGoogle Scholar

²⁶ Epstein, No, It's Our Duty to Keep Patients Alive, 50 MED. ECON., Apr. 2, 1973, at 97Google Scholar; Weber, Against the Control of Death, AM. J. NURS., July 1973, at 84–85Google Scholar. See generally Veatch, The Hippocratic Ethic: Consequentialism, Individualism, and Paternalism, in No RUSH TO JUDGMENT: ESSAYS ON MEDICAL ETHICS 238–264 (1978).Google Scholar

²⁷ See, e.g., R., Fox & J., SWAZEY THE COURAGE TO FAIL 280–315 (1974)Google Scholar (case of Ernie Crowfeather, an American Indian who chose to discontinue hemodialysis).

²⁸ See generally R., VEATCH A THEORY OF MEDICAL ETHICS 27–50 (1981).Google Scholar

²⁹ As opposed to measuring whether the patient has a “weighty reason,” medical ethics traditionally speak in terms of ordinary and extraordinary means to decide when treatment refusal is morally acceptable. See generally PRESIDENT's COMMISSION REPORT, supra note 18, at 82-89. If the terms “ordinary” and “extraordinary” connote how usual or unusual a medical procedure is, then any new treatment, no matter how obvious its benefits, should be morally expendable simply because of its novelty. Yet, it is clear that some treatments are unusual but morally compelling. Likewise, it should not be morally forbidden to refuse medical treatment simply because the particular treatment is common. Hence, while usualness of a treatment is enticing because of its objectivity, it is not a helpful distinction on which to build moral treatment decisions. Whatever these terms are intended to express, they could not refer to the degree to which the procedure is usual or unusual. These terms are confusing and misleading, and this author rejects them.

³⁰ See supra notes 10-23 and accompanying text.

³¹ But cf. Buchanan, The Limits of Proxy Decisionmakingfor Incompetents, 29 U.C.L.A. L. REV. 386 (1981).Google Scholar Buchanan rejects the extension of the right of self-determination to nevercompetent patients, and to some formerly competents (e.g., those designated as “brain-dead“). He criticizes the application of the concept of self-determination to those who could not actually exercise such a right as “judicial conservatism.” Id. at 407.

³² See, e.g., Saikewicz, 373 Mass, at 729-30, 370 N.E.2d at 419. The guardian ad litem successfully recommended to the probate judge that Mr. Saikewicz's illness was incurable and that the recommended treatment of chemotherapy would cause adverse side effects and discomfort. The guardian concluded that particularly in light of the severely retarded patient's inability to understand the reasons why he would be subjected to the painful treatments, the fear and pain he would suffer as a result of the treatment outweighed any benefit. These arguments were accepted by the probate judge and appeals court. But see In re Storar, 52 N.Y.2d 363,420 N.E.2d 64,438 N.Y.S.2d 266 (1981), holding that a guardian, the mother of a retarded 52-year-old man, had no right to refuse blood transfusions that would not help patient's cancerous condition. The transfusions caused the patient pain and discomfort, and served no curative purpose. Storar had a life expectancy of between two and six months regardless of the blood transfusions. Yet the guardian was not entitled to determine that it was in the best interest of the patient to forego the blood transfusions.

³³ G., BOGERT LAW OF TRUSTS § 17, at 37 (1973).Google Scholar

³⁴ See, e.g., Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969). Although the Strunk court used reasoning similar to that in the hypothetical, the sacrifice in the Strunk case was not as great, and the operation's probability of success was much greater.

³⁵ See Note, Incompetent Donors: Was the First Step or the Last Step Taken in Strunk v. Strunk?, 58 CALIF. L. REV. 754 (1970).

³⁶ See J., BENTHAM AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (1970)Google Scholar; J. S., MILL UTILITARIANISM AND OTHER WRITINGS (1962)Google Scholar; H., SIDGWICK THE METHODS OF ETHICS (1907).Google Scholar

³⁷ Although such sophisticated theories are propounded by Rawlsians, see J., RAWLS A THEORY OF JUSTICE (1971)Google Scholar, and egalitarians, see B., BARRY THE LIBERAL THEORY OF JUSTICE (1973)Google Scholar. See also Veatch, What is a ‘Just'Health Care Delivery?, in ETHICS IN HEALTH POLICY 127-53 (R., Veatch R., Branson eds. 1976)Google Scholar (recognizing the duty of individuals to contribute to the welfare of others, but only certain others who are among the least well off in certain ways). But since the terminally ill, incompetent individual is usually among the least well off, this may not give us much reason for guardians to refuse treatment for incompetent patients on grounds of benefiting others.

³⁸ McCormick, Proxy Consent in the Experimentation Situation, 18 PERSP. BIOL. & MED. 2–20 (1974).CrossRefGoogle Scholar

³⁹ The category of legal incompetents generally includes newborns, children, the mentally ill, the mentally retarded, and senile elders. See, e.g., Custody of a Minor, 385 Mass. 697, 434 N.E.2d 601 (1982); In re Guardianship of Roe, 1981 Mass. Adv. Sh. 981, 421 N.E.2d 40 (mentally ill); In re Spring, 380 Mass. 629, 405 N.E.2d 115 (1980) (senile); Custody of a Minor, 375 Mass. 733, 379 N.E.2d 1053 (1978); In re Moe, 385 Mass. App. Ct. 555, 432 N.E.2d 712 (1982) (mentally retarded); In re Dinnerstein, 6 Mass. App. Ct. 466, 380 N.E.2d 134 (1978).

⁴⁰ See, e.g., Horan, The “Right to Die“: Legislative and Judicial Developments, 13 FORUM 488 (1978).Google Scholar

⁴¹ The Massachusetts decisions reflect a recognition of the need for court involvement. The Saikewicz court took “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 “ 373 Mass, at 758-59, 370 N.E.2d at 434-35. However, the Massachusetts Appeals Court, in In re Dinnerstein, 6 Mass. App. Ct. 466, 380 N.E.2d 134 (1978), said there was no need for judicial involvement when the patient was in the terminal stages of an unremitting, incurable illness. Similarly, the appeals court in Custody of a Minor, 385 Mass. 697, 434 N.E.2d 601 (1982), determined that a court order was necessary because the child was a ward of the state, incompetent, and lacked a parental guardian. Other recent decisions have limited court involvement to cases in which there is disagreement among the medical professionals or family members. See, e.g., In re Colyer, 99 Wash. 2d 114,660 P.2d 738 (1983).Google Scholar

⁴² See PRESIDENT's COMMISSION REPORT, supra note 18, at 132-34. “The substituted judgment standard requires that a surrogate attempt to reach the decision that the incapacitated person would make if he or she were able to choose.” Id. at 132.

⁴³ For patients who have never been competent, substituted judgment is replaced by a “best interest” standard, which focuses not on self-determination, but merely on protecting the patient's welfare. See id. at 134-36.

⁴⁴ “A living will is a short document that basically states: ‘If the situation should arise in which there is not reasonable expectation of my recovery from physical or mental disability, I request that I be allowed to die and not be kept alive by artificial means or heroic measures.'” BLACK's LAW DICTIONARY 1434 (5th ed. 1979). They are already commonly employed, see, e.g., Comment, Living Will: Already a Practical Alternative, 55 TEX. L. REV. 665 (1977)Google Scholar, and some states have attempted to effectuate such declarations, .see, e.g., California Natural Death Act. CAL. HEALTH & SAFETY CODE §§ 7185-7195 (West 1976).

⁴⁵ 425 A.2d 156 (Del. Ch. 1980).

⁴⁶ See, e.g., In re Spring, 380 Mass. 629, 405 N.E.2d 115 (1980); In re Quinlan, 70 NJ. 10, 355 A.2d 647; In re Coyler, 99 Wash. 2d 114, 660 P.2d 738 (1983). In all these cases, the patient had not expressed his intent but the courts allowed guardians to express their opinions of what the patient would have wanted.

⁴⁷ Of course, there may be disputes about the proper standard for determining what would be the best course. But for purposes of this discussion, we assume that all the relevant parties agree, or in any event, the judicial authorities have determined that one course objectively is the best course.

⁴⁸ The physician, because of familiarity with the patient's case, would be privy to information concerning the patient's medical condition to which no one else would have access.

⁴⁹ In the case of patients who were never competent, there is normally no justification for according discretion to a non-familial guardian. The never competent patient could not have designated an agent and could not have established lasting friendship relationships to permit a presumption that they would want a friend to exercise such discretion. In very rare cases, the court may determine that the relationship between a never-competent patient and someone else is the equivalent of a familial relationship. In such a case, it might be appropriate for people to be accorded the discretion of a bonded guardian.

⁵⁰ See, e.g., In re Phillip B., 92 Cal. App. 3d 796, 156 Cal. Rptr. 48 (1979); Eichner, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981).

⁵¹ Eichner, 52 N.Y.2d at 371, 420 N.E.2d at 67, 438 N.Y.S.2d at 269-70 (1981).

⁵² In re Quinlan, 70 N.J. at 40, 355 A.2d at 663. See also supra notes 10-16 and accompanying text.

⁵³ Saikewicz, 373 Mass, at 740, 370 N.E.2d at 424-25; In re Quinlan, 70 N.J. at 4 0, 355 A.2d at 663; Leach, 68 Ohio Misc. 1, 426 N.E.2d 809, 813; In re Colyer, 99 Wash. 2d 114, 119, 660 P.2d 738, 742; see also supra notes 10-17 and accompanying text.

⁵⁴ 70 N.J. at 39, 355 A.2d at 663.

⁵⁵ Id. at 44, 355 A.2d at 664.

⁵⁶ See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972) (right to withdraw children from school for religious reasons after they have basic education); Boddie v. Connecticut, 401 U.S. 371 (1971) (state cannot deny divorce for inability to pay required court fees); Loving v. Virginia, 388 U.S. 1 (1967) (right to interracial marriage); Griswold v. Connecticut, 381 U.S. 479 (1965) (recognizes marital privacy); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“there is a private realm of family life which the state cannot enter“); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (right to send children to private school); Meyer v. Nebraska, 262 U.S. 390 (1923) (right to enable children to learn foreign language). See generally Tribe, Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1, 33 (1973). See also PRESIDENT's COMMISSION REPORT, supra note 18, at 215.

⁵⁷ Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (education is a realm of family life into which the state cannot enter); Wisconsin v. Yoder, 406 U.S. 205 (1972) (absent physical danger, decisions regarding child-rearing are matters of parental discretion). See generally Steinfels, Children's Rights, Parental Rights, Family Privacy and Family Autonomy, in WHO SPEAKS FOR THE CHILD 223-63 (W. Gaylin & R. Macklin ed. 1982).

⁵⁸ PRESIDENT's COMMISSION REPORT, supra note 18, at 215.

⁵⁹ Tribe, supra note 56.

⁶⁰ See supra notes 47-59 and accompanying text.

⁶¹ See generally L. TRIBE, supra note 11; see also Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sisters, 268 U.S. 510 (1925).

⁶² See, e.g., People ex rel Wallace v. Labrenz, 411 111. 6 1 8, 104 N.E.2d 769, cert, denied, 344 U.S. 824 (1952); Morrison v. State, 252 S.W.2d 97 (Mo. Ct. App. 1952); State v. Perricone, 37 NJ. 463, 181 A.2d 751, cert, denied, 371 U.S. 890 (1962); People v. Pierson, 176 N.Y. 201, 68 N.E. 243 (1903). See also Andelman, Parents Who Refused Treatment for Girl, 8, Overruled by a fudge, N.Y. Times, May 26, 1972, at 19.Google Scholar

⁶³ Robertson, Involuntary Euthanasia of Defective Newborns: A Legal Analysis, 27 STAN. L. REV. 213, 218 (1975).CrossRefGoogle Scholar Sometimes sweeping generalizations, arising from failure to maintain a sharp separation between active killing and treatment refusal have led to the hasty conclusion that all decisions to let die are the equivalent of homicide. Elsewhere, however, Robertson and others who are careful in the classification of cases distinguish sharply between actively intervening to hasten the death of a person and merely refusing treatments and thus increasing the probability that the person will die. They acknowledge that in some cases treatment refusal by guardians is acceptable, while it is widely recognized in both law and ethics that actively intervening to hasten death is unacceptable. Robertson, Legal Norms and Procedures for Withholding Care from Incompetent Patients: The Role of Law in Passive Euthanasia, in FRONTIERS IN MEDICAL ETHICS: APPLICATIONS IN A MEDICAL SETTING 18 (V., Abernathy ed. 1980)Google Scholar; Robertson, Substantive Criteria and Procedures in Withholding Care from Defective Newborns, in THE LAW-MEDICINE RELATION: A PHILOSOPHICAL EXPLORATION 2–11 (Spicker, S. J., Healy Jr. & H., Engelhardt Jr. ed. 1981).Google Scholar

There are rich traditions in law and ethics distinguishing killing and letting someone die. The Ethical and Religious Directives for Catholic Health Facilities say that “euthanasia ('mercy killing’) in all its forms is forbidden,” but go on to say that “neither the physician nor the patient is obliged to use extraordinary means” and further that “it is not euthanasia to give a dying person sedatives and analgesics for the alleviation of pain, when such a measure is judged necessary, even though they may deprive the patient of the use of reason, or shorten his life.” Ethical and Religious Directive for Catholic Health Facilities, Directive 28, at 8 (1971). A similar distinction is made by Pius XII, see Pope, Pius XII The Prolongation of Life, in 4 THE POPE SPEAKS 393-98 (1958)Google Scholar, by leading Protestant theologicans, see Ramsey, On (Only) Caring for the Dying, in THE PATIENT AS PERSON 113-64 (1970)Google Scholar, and by legal scholars, see Fletcher, Prolonging Life, 42 WASH. L. REV. 999–1016 (1967).Google Scholar Of course, critics may not accept the logic of the distinction. Many scholars do not. Fletcher, Euthanasia, Euthanasia—Our Right to Die, in MORALS AND MEDICINE ch. VI (1954)Google Scholar; M., KOHL THE MORALITY OF KILLING (1974).Google Scholar

⁶⁴ Robertson, Involuntary Euthanasia of Defective Newborns: A Legal Analysis, supra note 63, at 218.

⁶⁵ In re Seiferth, 309 N.Y. 80, 127 N.E.2d 820 (1955),ret/g 285 A.D. 221, 137 N.Y.S. 35 (1955).

⁶⁶ Id.

⁶⁷ Palm Springs Gen. Hosp. v. Martinez, No. 71-12687 (Fla. Cir. Ct. July 1971).

⁶⁸ A distinction in the treatment of terminally ill patients has already been recognized in the case law. Both Saikewicz and Dinnerstein make a great deal of the difference in the role of the court when the patient is inevitably dying and when the patient could live with treatment but would die without it. The Saikewicz court said that “ftjhere 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 cost to the individual that life may be briefly extended.” 373 Mass, at 742, 370 N.E.2d at 425-26. In such cases, the court implied treatment may be stopped, but emphasized that the court must retain the “ultimate” authority of reviewing the alternatives and selecting the one most plausible in the patient's interest.

In contrast, the Dinnerstein court implied that treatment may be stopped without court review in cases where the patient is terminally ill and inevitably dying. It said, “[t]his case does not offer a life saving or life-prolonging treatment alternative within the meaning of the Saikewicz case.” Dinnerstein, 6 Mass. App. Ct. at 475, 380 N.E.2d at 139. The Dinnerstein court said that in cases where all that is at stake is easing the imminent passing of an irremediably, terminally ill patient, “[i]t presents a question peculiarly within the competence of the medical profession of what measures are appropriate … .” Id. This can be done, according to Dinnerstein, without the review of the court.

We must assume that in spite of the Saikewicz court's implications to the contrary, the appeals court, reflecting back on the earlier Saikewicz case, viewed the patient as one who might live if treated. Then the court carved out a distinction on this basis which would permit it to conclude that in cases like Dinnerstein, judicial review was not necessary provided the patient was terminally ill and inevitably dying. Since both patients had a projected life with treatment of several months, but not much more than a year, this is a weak basis for the appeals court to authorize a departure from the requirement of judicial review called for in Saikewicz. It nevertheless implies that the crucial factor for authorizing judicial review is whether the patient is terminal. The Dinnerstein court could have better distinguished its case from Saikewicz by recognizing that in Saikewicz no family member was available for the guardian role while in Dinnerstein, knowledgeable family members (including a son who was a physician) showed every evidence of responsible involvement in the guardian role. For a different but equally critical discussion of the court's handling of the difference between Dinnerstein and Saikewicz, see Buchanan, supra note 31, at 399-402.

⁶⁹ See supra note 63.

⁷⁰ In re Quinlan, 70 N.J. at 18, 355 A.2d at 651.

⁷¹ Id. at 35, 355 A.2d at 661. Before addressing the right to privacy issue, the court considered and rejected an argument supporting treatment refusal premised on the first amendment right of religious freedom, and an argument that continued treatment would be cruel and unusual punishment. Id. at 35-38, 355 A.2d at 661-62.

⁷² Id. at 41, 355 A.2dat 664.

⁷³ Id. at 41-42, 355 A.2d at 664-65.

⁷⁴ See, e.g., Byrn, Wade and Bolton: Fundamental Legal Errors and Dangerous Implications, 19 CATH. LAW. 243 (1973)Google Scholar; Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973).CrossRefGoogle ScholarPubMed

⁷⁵ Saikewicz, 373 Mass, at 758, 370 N.E.2d at 434. See also In re Quinlan, 70 NJ. at 55, 355 A.2d at 671-72.

⁷⁶ In re Dinnerstein, 6 Mass. App. Ct. 466, 380 N.E.2d 134 (1978).

⁷⁷ In re Phillip B., 92 Cal. App. 3d 796, 156 Cal. Rptr. 48 (1979), cert, denied sub. rum. Bothman v. Warren B., 445 U.S. 949 (1980).

⁷⁸ Guardianship of Phillip Becker, No. 101-981, at 4 (Cal. Super. Ct., Aug. 7, 1981),aff'd, 139 Cal. App. 3d 407, 420, 188 Cal. Rptr. 781, 789 (1983).

⁷⁹ In re Phillip B., 92 Cal. App. 3d 796, 801, 156 Cal. Rptr. 48, 50 (1979).

⁸⁰ Id. at 801, 156 Cal. Rptr. at 51.

⁸¹ Id. at 801-02, 156 Cal. Rptr. at 51.

⁸² Guardianship of Phillip Becker, No. 101-981, slip op. at 19 (Cal. Super. Ct., Aug. 7, 1981).

⁸³ In re Guardianship of Phillip B., 139 Cal. App. 3d 407, 419-20, 188 Cal. Rptr. 781, 789 (1983).

⁸⁴ Id. at 414-18, 188 Cal. Rptr. at 785-87.

⁸⁵ Id. at 416-19, 188 Cal. Rptr. at 786-88.

⁸⁶ Cf. Ginex, A Prosecutor's View on Criminal Liability for Withholding or Withdrawing Medical Care: The Myth and the Reality, in LEGAL AND ETHICAL ASPECTS OF TREATMENT FOR CRITICALLY AND TERMINALLY III PATIENTS 205 (A., Doudera & J., Peters ed. 1982)Google Scholar; PRESIDENT's COMMISSION REPORT, supra note 18, at 34, 35 n.68.

⁸⁷ See Weiss, The Health Care Team: Changing Perceptions of Roles and Responsibilities in Caring for the Critically III Patient, and Corless, Physicians and Nurses: Roles and Responsibilities in Caring for the Critically III Patient, in LEGAL AND ETHICAL ASPECTS OF TREATING CRITICALLY AND TERMINALLY III PATIENTS 253–266, 270-283 (A., Doudera & J., Peters ed. 1982).Google Scholar

⁸⁸ Relman, The Saikewitz Decision: A Medical Viewpoint, supra note 4, at 241-42.Google Scholar

⁸⁹ Id. at 236.

⁹⁰ Id. at 237.

⁹¹ See, e.g., Baron, Assuring “Detached But Passionate Investigation and Decision“: The Role of Guardians Ad Litem in Saikewicz-type Cases, 4 AM. J. L. & MED. III (1978)Google Scholar; Baron, Medical Paternalism and the Rule of Law: A Reply to Dr. Relman, 4 AM. J.L. & MED. 337 (1979).Google ScholarPubMed

⁹² Relman, The Saikewicz Decision: A Medical Viewpoint, supra note 4, at 236.

⁹³ Id. at 240. In attempting to rebut the interpretation that sees him as excessively paternalistic he has said, “[w]henever possible, physicians should act only with the informed consent of their patient or, if the patient is legally incompetent, of the family or legal guardian.” Relman, Correspondence: A Response to Allen Buchanan's Views on Decision Making for Terminally III Incompetents, 5 AM. J.L. & MED. 119 (1979).CrossRefGoogle Scholar He says the judicial role is acceptable when there are “disputes, requests for help, or complaints of wrongdoing.” Id. at 120. Even then, however, he seems to work with a model of “family and physician” rather than one of the family (or other appropriate guardian) as the primary decision maker with the physician serving as one among many potential advisors in a capacity similar to a minister, a lawyer, other relatives, and close, trusted friends. For some reason, the physician is given a much more primary role.

⁹⁴ Physicians also have an implicit role as advocate during “emergencies and many other occasions in which life and death decisions must be made by the doctor without advance consultation with the patient or his family.” Relman, The Saikewicz Decision: A Medical Viewpoint, supra note 4, at 236. In emergencies, although there is presently no clear legal authority for it, physicians might also be authorized to make a temporary, but definitive determination of incompetency and to designate themselves guardians. Even physicians committed to the preservation of patient autonomy are concerned about such situations. See Jackson, & Youngner, Patient Autonomy and “Death With Dignity“: Some Clinical Caveats, 301 NEW ENG. J. MED. 404 (1979)CrossRefGoogle Scholar.

At this time, however, there are no statutory guidelines for such action on the part of physicians. If Relman and Jackson and Youngner are to sustain their position to give physicians authority in such truly emergency situations, they will have to provide some assurance that emergency treatment without court order is carefully confined to the limited situation where (1) the patient obviously would be declared incompetent, (2) the patient needs treatment so badly that a guardian refusal would be beyond the limits of tolerance, (3) taking the time to get judicial authorization to treat would seriously harm the patient, and (4) the patient has not previously refused the needed treatment while competent. The burden of proof should fall on any physician treating in emergencies against the expressed wishes of the patient to establish that all of these conditions were satisfied.

It is troublesome that many of the examples given in defense of emergency unauthorized presumptions of guardianship do not meet all of these criteria. None of Jackson and Youngner's six reported cases of potentially legitimate physician decision making for patients of the sort discussed here clearly meets all these criteria. Only one, a case of a woman suffering an asthmatic attack, may meet the third condition.

⁹⁶ 6 Mass. App. Ct. 466, 475, 380 N.E.2d 134, 139 (1978).

⁹⁷ Relman, The Saikewicz Decision: A Medical Viewpoint, supra note 4, at 241.

⁹⁸ Id. at 242. Buchanan, supra note 4, at 111.

⁹⁹ 70 N.J. at 55, 355 A.2d at 672.

¹⁰⁰ Id. at 49-50, 355 A.2d at 668-69.

¹⁰¹ Teel, The Physician's Dilemma: A Doctor's View: What the Law Should Be, 27 BAYLOR L. REV. 6 (1975).Google Scholar

¹⁰² 70 N.J. at 38-42, 355 A.2d at 662-64.

¹⁰³ Relman, The Saikewicz Decision: A Medical Viewpoint, supra note 4, at 234.

¹⁰⁴ 70 N.J. at 55, 355 A.2d at 671.

¹⁰⁵ See generally PRESIDENT's COMMISSION REPORT, supra note 18, at 160-69.

¹⁰⁶ Id. at 169 (committees known as “Institutional Review Boards” (IRBs) have developed to consider the ethical issues involved in human experimentation). See generally R., LEVINE ETHICS AND REGULATION OF CLINICAL RESEARCH (1981).Google Scholar

¹⁰⁷ Veatch, Human Experimentation Committees: Professional or Representative?, 5 HASTINGS CENTER RPT. 31–40 (1975).CrossRefGoogle ScholarPubMed

¹⁰⁸ It seems unlikely, however, that a hospital could stop the physician from seeking judicial review, in light of the physician's inevitable central role in carrying out the final decision.

¹⁰⁹ See supra note 57 and accompanying text.

¹¹⁰ This presumption should be codified through legislation similar to that of Arkansas authorizing next of kin to assume the guardianship role. 1977 ARK. ACTS 879. Judicial recognition of such a presumption would aid in averting jammed court dockets. Occasionally, a formerly competent patient may override the presumption by previously designating a guardian. See generally R. VEATCH, supra note 10, at 116-63. Often included in the “family member” category are specifically designated agents. See PRESIDENT's COMMISSION REPORT, supra note 18, at 129 n.24. On the other hand, an analogous presumption of shared values should not extend to self-proclaimed bonded guardians.

¹¹¹ See Relman, supra note 4 (judicial input should occur only when there is disagreement concerning treatment among the next of kin, or between the next of kin and the doctor).

¹¹² See supra notes 10-23 and accompanying text.

¹¹³ See generally Prince v. Massachusetts, 321 U.S. 158 (1943); Pierce v. Society of Sisters, 268 U.S. 510 (1924).

¹¹⁴ Much of tort law centers around the concept of reasonableness, W. PROSSER, HANDBOOK OF THE LAW OF TORTS 149 (4th ed. 1971); contract law also implicates reasonableness standards, see, e.g., 1 A., CORBIN CONTRACTS §§ 644-47 (1952)Google Scholar; and antitrust employs rule of reason analysis, L., SULLIVAN HANDBOOK OF THE LAW OF ANTITRUST 171 (1977)Google Scholar.

¹¹⁵ The Quinlan case threw this traditional role of physicians into question, suggesting the need for legal authority to make life and death decisions. See Steinfels, supra note 57, at 3.

¹¹⁶ See supra notes 89-98 and accompanying text.

¹¹⁷ 373 Mass. 728, 370 N.E.2d 417 (1977).

¹¹⁸ Id. at 731, 370 N.E.2d at 420.

¹¹⁹ Id. at 757, 370 N.E.2d at 433.