Hostname: page-component-cd9895bd7-jn8rn Total loading time: 0 Render date: 2024-12-24T01:41:17.413Z Has data issue: false hasContentIssue false
  • English
  • Français

Identifying Appropriate Decision-Makers and Standards for Decision

Published online by Cambridge University Press:  29 April 2021

Stewart G. Pollock
Get access Rights & Permissions [Opens in a new window]

Extract

Judges, like lawyers, love to make disclaimers. So, at the outset, I disclaim any expertise in medicine or bioethics. My views are those of a generalist, a judge who has been required to decide cases involving bioethical questions such as the termination of medical treatment.

As Chief Judge Wachtler has explained, the New York Court of Appeals, like the Supreme Court of Missouri in Cruzan, has decided to require clear and convincing evidence before permitting the termination of life-sustaining treatment for an incompetent patient who is not terminally ill. Other courts, including the New Jersey Supreme Court, have reached a different conclusion.

It is not my purpose today to persuade you that the position of our court is correct. Instead, I propose to look at the Cruzan case to see what it does and does not tell us about the identity of the decision-maker and the standard for decision-making in the termination-of-medical-treatment cases.

Type
Article
Information
Law, Medicine and Healthcare , Volume 19 , Issue 1-2 , Spring Summer 1991 , pp. 63 - 65
Copyright
Copyright © American Society of Law, Medicine and Ethics 1991

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Remarks by the Honorable Sol Wachtler, Chief Judge of the New York Court of Appeals, Conference on Medical Decision-Making and the Right to Die After Cruzan, Washington, D.C. (September 15, 1990).Google Scholar
Matter of Westchester County Medical Ctr, 72 N.Y.2d 517, 530–31, 531 N.E. 2d 607, 613 (1988).Google Scholar
See e.g. Matter of Jobes, 108 N.J. 394, 418–20, 529 A.2d 434, 445–47 (1987) (subject to medical confirmation procedures, right of patient in irreversibly vegetative state to refuse life-sustaining treatment may be exercised by patient's family or close friend); Conservatorship of Drabick, 200 Cal. App.3d 185, 208, 245 Cal. Rptr. 840, 855–57, cert. denied, —U.S.—, 109 S.Ct. 399, 102 L.ED.2d 387 (1988) (patient's conservator could order withdrawal of life-sustaining treatment if decision made in good faith based on medical advice and in conservatee's best interest).Google Scholar
Cruzan v. Director, Missouri Dept. of Health, 457 U.S.—, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990).Google Scholar
Id. at 2855–56.Google Scholar
Id. at 2856.Google Scholar
Id. at 2863–64 (Brennan, J., dissenting).Google Scholar
Id. at 2877 (Brennan, J., dissenting) (quoting Jobes, 108 N.J. at 416, 529 A.2d at 445).Google Scholar
Id. at 2877 (Brennan, J., dissenting).Google Scholar
Id. at 2858–59 (O’Connor, J., concurring)Google Scholar
Id. at 2854.Google Scholar
Id. at 2857 (O’Connor, J., concurring).Google Scholar
Ibid.Google Scholar
Ibid.Google Scholar
Id. at 2854; see supra notes 10 to 14 and accompanying text.Google Scholar
Lord Winston Spencer Churchill, Speech at the Lord Mayor's Day Luncheon, November 10, 1942.Google Scholar
Matter of Westchester County Medical Ctr., 72 N.Y.2d at 530–31, 531 N.E.2d at 613Google Scholar
Jobes, 108 N.J. at 418–20, 529 A.2d at 445–47.Google Scholar
Id. at 414, 529 A.2d at 444.Google Scholar
But see The Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, 4206, 4751 (requiring health care providers to inform patients of the health care provider's policy and state law regarding advance directions and the right to refuse treatment).Google Scholar
United States Const. art. VI, 2.Google Scholar
Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 635–36 (1875); see e.g. Henry v. Mississippi, 379 U.S. 443, 446–47 (1965); Fay v. Nola, 372 U.S. 391, 428 (1963); Eustis v. Bolles, 150 U.S. 361, 370 (1983).Google Scholar
Cruzan, 457 S.Ct. at 2875 n.22 (Brennan, J., dissenting) (citing New York as the only state other than Missouri to require clear and convincing evidence of a patient's desire to terminate life support); see also Gasner, “Right to Die Lives Locally,” The National Law Journal, 13 (July 23, 1990) (the courts of last resort of Maine and New York are the only courts to require “clear and convincing” evidence of the desire to forego medical treatment). Gasner explained that the Supreme Judicial Court of Maine explicitly left undecided the propriety of the substituted judgment standard and did not unequivocally adopt the “clear and convincing” standard of proof for all circumstances. Id. Remarks by the Honorable Sol Wachtler, supra note 1 (noting that New York is “out of step with almost every other state in not applying doctrine of substituted judgment…or…the best interests” test).Google Scholar
See Jobes, 108 N.J. at 418, n.11, 529 A.2d at 446 n.11; Gibbs, , Love and Let Die, Time, 62 (March 19, 1990); Cruzan, 110 S.Ct. at 2869 n.11 (Brennan, J., dissenting).Google Scholar
See PruneYard Shopping Center v. Robins, 447 U.S. 74, 81 (1980); see, e.g., Right to Choose v. Byrne, 91 N.J. 287, 310 (1982) (determining that the New Jersey Constitution, unlike the Federal Constitution, forbids withholding Medicaid funds for therapeutic abortions); State v. Alston, 88 N.J. 211, 226, 440 A.2d 1311, 1318–19 (1981) (holding that the New Jersey Constitution provides more protection against unreasonable searches and seizures than the United States Constitution); State v. Schmid, 84 N.J. 535, 557–60, 423 A.2d 615, 626–27, (1980) (finding more protection for freedom of speech in New Jersey Constitution).Google Scholar
See Brennan, “State Constitutions and the Protection of Individual Rights,” 90 Harv. L. Rev. 489 (1977); Linde, , “First Things First: Rediscovering the State's Bill of Rights,” 9 U. Balt. L. Rev. 379 (1980); Abrahamson, , “Resurrection of State Courts,” 36 Sw. L.J. 951 (1982); Pollock, , “Address: State Constitutions as Separate Sources of Fundamental Rights,” 35 Rutg. L. Rev. 707 (1983).Google Scholar
See Cruzan, 110 S.Ct. at 2869, n. 11 (Brennan, J., dissenting) (noting legislature action on right-to-die issues); Remarks by Fenella Rouse, J.D., Executive Director, Concern for Dying/Society for the Right to Die, Conference on Medical Decision-Making and the Right to Die after Cruzan, Washington, D.C., (September 14–15, 1990) (compiling legislation).Google Scholar