Physician-Assisted Suicide: The Legal Slippery Slope

, Division of Medical Ethics and Humanities at the University of South Florida College of Medicine, Tampa, Florida.

Cancer Control. 2001;8(1) 

In This Article

"Right-to-Die" Reasoning and the Courts

The so-called "right to die" is actually a right to refuse unwanted medical treatment. In a long series of right-to-die cases, courts have often found that a person's right to refuse medical treatment is not lost even when that person has lost the capacity to exercise the right. This finding, coupled with a strong desire to preserve personal rights, has led courts to find ways for incapacitated persons to be free of unwanted life-sustaining medical interventions.

The view of the courts is that basic rights, such as the right to self-determination, apply to persons per se and thus are not contingent on their capacity to exercise them. In Quinlan, [6] the New Jersey Supreme Court held that Quinlan's right to choose or refuse mechanical ventilation "should not be discarded solely on the basis that her condition prevents her conscious exercise of the choice." In Saikewicz,[35] which involved an adult with mental incapacity, the Massachusetts Supreme Court wrote,"We recognize a general right in all persons to refuse medical treatment in appropriate circumstances. The recognition of that right must extend to the case of an incompetent, as well as a competent, patient because the value of human dignity extends to both." Clearly, then, one of the tenets of right-to-die reasoning is that incompetent persons have the same right to refuse medical treatment that competent persons have.

What happens when this right cannot be exercised? In a practical sense, a right that cannot be exercised is not a right at all. In Quinlan, [6] the court wrote, "Our affirmation of Quinlan's independent right of choice, however, would ordinarily be based upon her competency to assert it. The sad truth, however, is that she is grossly incompetent." In John F. Kennedy Memorial Hospital v Bludworth, [36] which involved an incapacitated terminally ill patient, the Florida Supreme Court wrote,"This right of terminally ill patients should not be lost when they suffer irreversible brain damage, become comatose, and are no longer able to personally express their wishes to discontinue the use of extraordinary artificial support systems."

In order to give meaning to the rights of incompetent persons and to preserve their rights, courts have felt compelled to offer practical solutions that involve having someone else exercise the right of the incompetent person. In Quinlan, the court wrote, "The only practical way to prevent destruction of the right is to permit the guardian and family of Quinlan to render their best judgment." They concluded that, "Quinlan's right of privacy may be asserted on her behalf by her guardian." [6] In Bludworth, the Florida Supreme Court stated that,"The primary concern of these cases is that this valuable right should not be lost because the noncognitive and vegetative condition of the patient prevents a conscious exercise of the choice to refuse further extraordinary treatment." In order to "ensure this right,"the court held that"the right of a patient, who is in an irreversibly comatose and essentially vegetative state to refuse extraordinary life-sustaining measures, may be exercised either by his or her close family members or by a guardian of the person of the patient appointed by the court." [35]

The reasoning process exemplified in these and other court decisions can be characterized by the following syllogism: (1) If a competent person has a basic personal right, then so does an incompetent person, (2) incompetent persons lack the ability to exercise their rights, (3) rights that cannot be exercised are extinguished, (4) rights must be preserved, not extinguished, and (5) to prevent rights from being extinguished, another person must exercise the incompetent person's right on his or her behalf.

The process by which a person, usually a family member, exercises an incompetent person's right to refuse medical treatment is called substitute decision making. Substitute decision making has been approached in two basic ways, depending on whether there is evidence that the patient expressed treatment preferences prior to losing competency.

When there is evidence of previous wishes, the substitute decision maker must make the choice that, based on available evidence, the patient would have made if competent. In two cases, In re Browning[37] (which involved a person in a persistent vegetative state who had a living will) and Brophy[38] (which involved a permanently incapacitated patient who repeatedly commented that he did not want to be kept alive in a vegetative existence), there was good evidence that both would have refused life-prolonging medical intervention. This process of basing a decision on prior patient wishes is called substituted judgment.

The second approach addresses the common scenario of an incompetent patient who has not previously indicated a preference for or against medical intervention. In these situations, many courts have held that the substitute decision maker, in consultation with the treating physician and others, should make the decision all agree is in the best interest of the incompetent patient. In In re Conroy, [39] a relative was given permission to authorize withdrawal of a feeding tube from an elderly woman with dementia because it was deemed to be in the best interest of the patient. This form of substitute decision making is referred to as the "best interest standard." This standard has resulted in decisions to discontinue medical interventions for incompetent persons even in cases where there is little or no evidence that the incompetent person would have wanted to discontinue treatment.

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