During the last half of 1980, health systems agencies (HSAs) throughout the country will be conducting appropriateness reviews for the first time. For many HSAs, this will be their initial venture into reviewing existing institutional health services, as distinguished from their reviews of proposed capital expenditures and new institutional health services under the authority of Section 1122 of the Social Security Act or state certificate of need (CON) laws. The scope, content, and effect of appropriateness reviews present numerous areas of uncertainty, some of which this article will examine.

Appropriateness review was enacted originally as part of the National Health Planning and Resources Development Act of 1974 (the “Act”). It was a compromise. The concept originated among health planners who were dissatisfied with their inability to initiate changes in the health care delivery system. This weakness resulted from their essentially reactive posture in reviewing new projects proposed by existing facilities.

In the “Brother Fox case,” the Appellate Division of the Supreme Court of New York for the Second Department, in a thoughtful and exhaustive opinion, announced several rulings of significance affecting the treatment of the terminally ill. The decision dealt with both competent and incompetent patients, but is especially relevant to more complex problems associated with the incompetent patient.

The court held that a competent terminally ill patient was entitled to refuse medical treatment and, that a competent person might lawfully direct that treatment be withheld should he later become terminally ill and incompetent. The court then declared that these rights were of constitutional dimension, embodied in the constitutional right of privacy, and not based on a mere common law “bodily right of self determination.”

Since the Massachusetts Supreme Judicial Court's opinion in Saikewicz, a great deal of controversy has existed over going to court prior to discontinuing or deciding not to commence medical care for the benefit of an incompetent person; the use of do not resuscitate (DNR) orders; the role of the family in making such decisions; the recognition of “brain death;” and the use of the incompetent's “quality of life” as a basis for making such determinations. Both the legal and medical communities waited expectantly while the Supreme Judicial Court considered the case of Earle N. Spring, with the hope that the court would resolve at least some of these issues. The opinion did clarify a number of important issues, but either did not deal with, or confused, others.