Decisions to Forego Medical Treatment: The Preferred Medical, Ethical, and Legal Approach
Decisions to Forego Medical Treatment: The Preferred Medical, Ethical, and Legal Approach
J. Stuart Showalter
Part of the Medical Jurisprudence Commons Recommended Citation
Follow this and additional works at: http://scholarship.law.stjohns.edu/tcl
J. STUART SHOWALTER*
The issues addressed in this Article are among the most difficult our
legal system will face in the coming years. They are not simply questions
of statutory interpretation or an extension of case law. Rather, they
involve questions of basic societal beliefs and are complicated all the more
by the fact that there is not yet a clear consensus among members of
society regarding them.
In many respects, the subjects addressed on the following pages are
as basic (and as complex) as the two great social issues of our
past-slavery and segregation-for they concern the inalienable human
rights of life and freedom, and the dignity due to each person in the
community of persons. As with slavery and segregation, the legal system will
at once both lead and follow social attitudes. It will do so specifically with
regard to such questions as: the nature of "death" and whether cessation
of brain function means death of the person; the proper care and feeding
of handicapped newborns; whether it is permissible to withhold treatment
from irreversibly comatose patients; the so-called "right to die"; whether
a proxy should be empowered to make decisions for a patient if the
decision will result in the person's death; the proper care and respect due
elderly and incompetent patients; the propriety of do-not-resuscitate
orders; and the role courts can and should play in all of the above.
This Article will begin with a brief summary of "brain death" cases
and statutes-a summary that ends with the conclusion that concensus
has in fact been reached on this issue.' Next, there is a more detailed
analysis of the law relating to decisions to terminate or withhold
treatment emphasizing perceived methods for health care providers to avoid
legal entanglements in making such decisions. Lastly, the Article suggests
that in all these situations, physicians and the courts should rely more
heavily on generally accepted medical and ethical standards (such as
those enunciated in the recent President's Commission reports)2 rather
than on purely legal principles.
II. DETERMINATION OF DEATH3
For many years, the definition of "death" used in the law was
reflected in the following Black's Law Dictionary entry: "[t]he cessation of
life; the ceasing to exist; defined by physicians as a total stoppage of the
circulation of the blood, and a cessation of the animal and vital functions
consequent thereon, such as respiration, pulsation, etc."4 Case law added
another factor: "death occurs precisely when life ceases and does not
occur until the heart stops beating and respiration ends. Death is not a
continuing event and is an event that takes place at a precise time."5
These definitions had been accurate and sufficient for many years,
and, in most cases, today death continues to be determined by reliance on
cessation of circulation and respiration. However, certain ambiguities in
the traditional standard became apparent with the advent of cardiac
transplantation surgery, for a heart that has not been beating for a period
of time is worthless to its recipient, yet one that is still beating continues
to be indispensible to its owner according to the standard definition. The
1972 case of Tucker v. Lowers graphically illustrates this point.
Bruce Tucker died of head injuries sustained in a fall. Though heroic
measures were attempted, he did not respond and was unable to breathe
without the assistance of a respirator. Approximately 24 hours after he
was injured, an electroencephalogram showed no cerebral activity. Tucker
was removed from the respirator, and after five minutes during which he
exhibited no spontaneous respiratory movements, was pronounced dead.
Authorization had been obtained to transplant his heart into the chest of
a patient who was dying of cardiac failure. (The authorization was
obtained from the local medical examiner since no relative of Tucker's could
be located. The diligence of the medical personnel's search for relatives
was an issue in the trial that followed.) The transplant was accomplished,
but the recipient died approximately one week later.
When Tucker's family was finally located, his brother filed a
wrongful death claim for $1 million in a Richmond, Virginia court. At the close
of the evidence in the ensuing trial, the judge instructed the jury:
you shall determine the time of death in this case by using the following
definition of the nature of death. Death is a cessation of life. It is the
ceasing to exist. Under the law, death is not continuing but occurs at a precise
time .... In determining [it] you may consider the following elements...
[among them] the time of complete and irreversible loss of all function of
the brain. 7
The jury took approximately one hour to return a verdict for the
physicians absolving them of Tucker's death.
A similar case in California decided the issue in a criminal context.
The court held that the defendant, the individual who had shot the
victim, was the party responsible for the victim's death, not the physicians
who had performed a heart transplant.' Significantly, the judge decided
as a matter of law, based on the concept of brain death, that the victim
had died before the physicians had removed his heart. Thus, he
instructed the jury: "since the deceased . . .was dead, before the removal
of his heart, there was no issue of fact as to the cause of death."9
These cases recognize the nearly unanimous medical consensus that
when the whole brain no longer functions, the person is clinically dead. 0
Furthermore, they reinforce the concept that the determination of when
death occurs is a medical judgment, not a legal one."
7 Comment, supra note 6, at 424.
8 People v. Lyons, (Cal. App. Super. Ct., May 21, 1974), cited in, Friloux, Death, When
Does it Occur, 27 BAYLOR L. REV. 10 (1975).
* Friloux, supra note 8, at 15.
10 See DEFINING DEATH, supra note 1, at 21-30. See generally Beecher, A Definition of
Irreversible Coma, 205 J. A.M.A. 337, 338-39 (1968); Sweet, BrainDeath, 299 NEW ENG. J. MED.
410, 410-11 (1978); Guidelines for the Determinationof Death, 246 J. A.M.A. 2184, 2184
(1981) [hereinafter cited as Guidelines]. This last cited article is an excellent summary of
the current medical techniques used for diagnosing lack of brain function. See Guidelines,
supra, at 2185-86.
" See, e.g., Bacchiochi v. Johnson Mem. Hosp., No. 256126 (Conn. Super. Ct., Mar. 13,
1981). The court stated that decisions such as disconnecting a respirator in a brain dead
In the wake of these two early-1970's cases, courts in a number of
jurisdictions took similar action and adopted the concept of brain death
without benefit of legislation. In a homicide case in Arizona, that state's
supreme court held that the proximate cause of death was not the
removal of life support systems but the gunshot wounds that destroyed the
victim's brain function." Similarly, in a Colorado child abuse case, the
supreme court held:
[w]ith advances, including resuscitative technology and organ transplants,
the medical community has developed a more complete definition of death.
There is a wealth of material describing these advances during the past 10
years. The all but unanimous view endorses the concept of brain death ...
We recognize the authority of, and indeed encourage, the General Assembly
to pronounce statutorily the standards by which death is to be determined
in Colorado. We do not, however, believe that in the absence of legislative
action we are precluded from facing and resolving the legal issue of whether
irretrievable loss of brain function can be used as a means of detecting the
condition of death. Under the circumstances of this case we are not only
entitled to resolve the question, but have a duty to do so. To act otherwise
would be to close our eyes to the scientific and medical advances made
worldwide in the past two or three decades."
Similar cases have
person "are best determined by the family, by the attending physicians and by the hospitals
involved, and .. .judicial intervention should be required only where it is necessary to
protect those persons who are acting in their professional capacity from possible criminal or
civil liability," id.; see also Swafford v. State, 421 N.E.2d 596, 598-602 (Ind. 1981); In re
Bowman, 94 Wash. 2d 407, -, 617 P.2d 731, 734 (1980) ("the law has adopted standards of
death but has turned to physicians for the criteria by which a particular standard is met.");
Schneck, Brain Death and ProlongedStates of Impaired Responsiveness, 58 DEN. L.J. 609,
612, 621 (1981) (Prof. Schneck, a physician and professor of neurology and neuropathology,
offers 13 "reasonable medical criteria" that he believes can be employed to diagnose brain
death "without fear of error").
"' State v. Fierro, 124 Ariz. 182, 185, 603 P.2d 74, 77-78 (1979). The court concluded that
even though the state legislature had not acted, adoption of the brain death standard was
warranted: "We believe that while the common law definition of death is still sufficient to
establish death, [brain death], if properly supported by expert medical testimony, is also a
valid test for death in Arizona." Id. at 185, 603 P.2d at 77.
11Lovato v. District Court, 198 Colo. 419, -, 601 P.2d 1072, 1076 (1979). This case
contains an excellent review of the medical-legal literature on this subject as it existed in 1979.
Id. at -, 601 P.2d at 1076 n.4. Colorado has since adopted the brain death concept
legislatively. See COLo. REv. STAT. § 12-36-136 (1981).
14 See Cranmore v. State, 85 Wis. 2d 722, 771-75, 271 N.W.2d 402, 427-28 (1978) (upholding
murder conviction under circumstances similar to Lovato without specifically defining
" See Commonwealth v. Golston, 373 Mass. 249, -, 366 N.E.2d 744, 750-51 (1977), cert.
denied, 434 U.S. 1039 (1978).
York,16 Washington 1 7 Minnesota," s and Indiana. " No case has been
found in which the concept of brain death has been rejected.2
State legislatures began considering the issue even before these
judicial developments occurred. In 1970, Kansas became the first state to pass
a brain-death statute, and Maryland soon adopted a nearly identical
provision. 1 The Kansas version reads as follows:
A person will be considered medically and legally dead if, in the opinion
of a physician, based on ordinary standards of medical practice, there is the
absence of spontaneous respiratory and cardiac function and, because of the
disease or condition which caused, directly or indirectly, these functions to
cease, or because of the passage of time since these functions ceased,
attempts at resuscitation are considered hopeless; and, in this event, death
will have occurred at the time these functions ceased; or
A person will be considered medically and legally dead if, in the opinion
of a physician, based on ordinary standards of medical practice, there is the
absence of spontaneous brain function; and if based on ordinary standards
of medical practice, during reasonable attempts to either maintain or
restore spontaneous circulatory or respiratory function in the absence of
aforesaid brain function, it appears that further attempts at resuscitation or
supportive maintenance will not succeed, death will have occurred at the
time when these conditions first coincide. Death is to be pronounced before
any vital organ is removed for purposes of transplantation.
These alternative definitions of death are to be utilized for all purposes
in this state, including the trials of civil and criminal cases, any laws to the
'6 See New York City Health & Hosp. Corp. v. Sulsona, 81 Misc. 2d 1002, 1003-05, 367
N.Y.S.2d 686, 687-89 (Sup. Ct. Bronx County 1975).
See In re Bowman, 94 Wash. 2d 407, -, 617 P.2d 731, 736-38 (1980).
See In re Children's Hosp., No. 49143 (Minn. Sup. Ct. 1978).
See Swafford v. State, 421 N.E.2d 596, 598-602 (Ind. 1981).
20 Cf. Douglas v. Southwestern Life Ins. Co., 374 S.W.2d 788 (Tex. Civ. App. 1964). A
beneficiary under a life insurance policy sued to recover accidental death benefits (ADB). The
policy limited ADB to deaths occurring within 90 days of the accident and, although the
decedent did not die until 120 days after the accident, his beneficiary argued that it was
only because of "extraordinary medical measures" that he lived beyond the 90-day period.
Id. at 793. The opinion did not further describe these medical procedures, and, in fact, it
was specifically held "that death did not actually occur until approximately 120 days after
the accident." Id. This being so, the case is not seen as a rejection of the brain death
criterion; see also Bacchiochi . Johnson Mem. Hosp., No. 256126 (Conn. Super. Ct., Mar. 13,
1981). In Bacchiochi, a physician who had diagnosed irreversible cessation of all brain
function nevertheless refused to disconnect the life support system unless given immunity from
prosecution. When the state's attorney would not grant immunity, the patient's family sued
to have her removed from the respirator. There ensued four days of wasteful and inane legal
hearings following which the judge declined to invoke Connecticut's
organ-transplant-related brain death law. Id. at _; see supra note 11; see also DEFINING DEATH, supra note 1,
"' See KAN. STAT. ANN. § 77-202 (Supp. 1983); MD. CODE ANN. art. 43, § 54D (1980).
Since that time, thirty-two other states and the District of Columbia
have enacted some form of definition-of-death statute. There are three
basic types: (1) those with alternative definitions, such as the Kansas
law; 2 (2) those that consider brain function only if artificial "life
supports" prevent determination of death by traditional means;"' and (3)
those that ignore the traditional standards and refer to brain function
The jurisdictions that have no determination-of-death statute are:
Arizona, Delaware, Indiana, Kentucky, Maine, Massachusetts, Minnesota,
Nebraska, New Hampshire, New Jersey, New York, North Dakota, Ohio,
South Carolina, South Dakota, Utah, and Washington.
Few cases have interpreted these laws. In State v. Shaffer,2 s the
defendant argued that the Kansas provision was unconstitutionally vague
because it set forth both the brain death and the traditional death
standards, and, also because it bases the determination on "ordinary
standards of medical practice." The Supreme Court of Kansas found both
arguments to be without merit. It rather summarily dismissed the first,
and as to the second it held:
[t]here is disagreement within the medical profession as to exactly what
22 KAN. STAT. ANN. § 77-202 (1983).
'3 See DEFINING DEATH, supra note 1, app. C at 120-34. Jurisdictions adopting alternative
definitions include: Colorado, The District of Columbia, Kansas, Maryland, Mississippi,
Missouri, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and
Wisconsin. Among this group, Colorado, The District of Columbia, Mississippi, Pennsylvania,
Rhode Island, Vermont and Wisconsin have adopted the Uniform Determination of Death
Act (UDDA). This model law was proposed by the National Conference of Commissioners
on Uniform State Laws and has been endorsed by the American Bar Association, the
American Medical Association, the American Academy of Neurology, the American
Electroencephalographic Society, and the President's Commission. The operative language of
the proposal reads: "[a]n individual who has sustained either (1) irreversible cessation of
circulatory and respiratory functions, or (2) irreversible cessation of all functions of the
entire brain, including the brain stem, is dead. A determination of death must be made in
accordance with accepted medical standards." Id. at 118.
A staff study project of The Catholic Health Association of the United States contains
the following comments about the UDDA: "[t]his model law is a thoughtful, appropriate,
and realistic approach to adopting brain-related criteria to diagnose death, and by requiring
cessation of all brain functions it provides a necessary bulwark against euthanasia. We pose
no legal or moral objection to the UDDA ... " A. MORACZEWSKI & J. SHOWALTER, supra
note 3, at 28.
24 See DEFINING DEATH, supra note 1, app. C, at 120-34. These states include Alabama,
Alaska, Florida, Hawaii, Iowa, Louisiana, Michigan, and Texas.
"5See DEFINING DEATH, supra note 1, app. C, at 120-34. Examples of this approach are
found in Arkansas, California, Connecticut, Georgia, Idaho, Illinois, Montana, Nevada,
North Carolina, Oklahoma, Tennessee, West Virginia, and Wyoming.
" 223 Kan. 244, 574 P.2d 205 (1977).
tests should be employed to determine death. This, of course, is not unusual
within that profession ...
'Ordinary standards of medical practice' change as medical knowledge
and technology improve. Under the instructions given in this case, it was for
the jury to determine whether the medical standards .. . had been met.
Much of the testimony presented at trial went to this very point. The attack
on the statute for failure to specifically enumerate criteria is held to be
As the above discussion indicates, "brain death" (the irreversible
cessation of all functions of the entire brain) is now the legal standard in
over three-fourths of the states. No court has ever rejected the concept, or
given it overwhelming acceptance, none is likely to do so.
When technological advances about two decades ago were beginning
to create a "medical-legal fog"2 8 in this area, "[a] little common sense
reflection . . . would have solved the problem and headed off much of the
unnecessary debate which followed ... ,,"2 The time has at last come to
put "brain death" aside as a nonissue and devote more energy to the
nearly intractable problems surrounding decisions to withhold or
THE LAW ON TERMINATION OF TREATMENT
The previous section focused on those who are already dead. In this
section, the subject will be persons who are clearly alive but for whom
death or continued suffering are distinct probabilities. It is important for
one to remember this difference, because "[a] balanced view of life and
death requires that the dying not be treated as if they were dead, nor the
dead as if they were living."30
When brain death has occurred, there is no longer any issue
regarding terminating or withholding treatment-the patient is dead and the
'7 Id. at -, 574 P.2d at 209-10. For additional cases construing statutory provisions, see
People v. Vanderford, 77 Mich. App. 370, 372-74, 258 N.W.2d 502, 503-04 (1977); State v.
Brown, 8 Or. App. 370, - (1971).
28See Paris & McCormick, Living-Will Legislation,Reconsidered, 145 AMERICA 86, Sept. 5,
1981, at 88.
29 See Horan, Definition of Death: An Emerging Consensus, TRIAL, Dec. 1980, at 22, 23.
So A. MORACZEWSKI & J. SHOWALTER, supra note 3, at 31. In some circumstances it may be
appropriate to make an exception to this general principle. For example, there have been
cases in which a pregnant woman has suffered "brain death." If this occurs late enough in
the pregnancy, it is possible to sustain the child by artificially maintaining the mother's
bodily functions until some or all risk of fetal prematurity has passed. Although the mother
will have died at the time brain functions ceased, portions of her body can continue to
function sufficiently to provide an acceptable milieu for the baby. See Dillon, Lee,
Tronalone, Buckwald & Foote, Life Support and MaternalBrainDeath DuringPregnancy, 248
J. A.M.A. 1089, 1089 (1982).
cadaver ought not be treated as if it were alive. On the other hand, should
the patient be allowed to die before actual brain death has occurred?
This will be the seminal medical-legal question of the 1980s, and, indeed,
it has already spawned much litigation.
The classic statement of Judge Cardozo in Schloendorff v. Society of
New York Hospital1 continues to be the guiding principle when the issue
involves competent adults: "[e]very human being of adult years and
sound mind has a right to determine what shall be done with his own
body. . . ." The principle is based on the concept of battery,"3 and it
suggests, as a general proposition, that a person has a right to refuse any
medical treatment, even if that refusal will mean the omission of
lifesustaining medical care.
The rule was stated similarly in Natanson v. Kline:34 "[e]very person
is considered to be master of his own body, and he may, if he be of sound
mind, expressly prohibit the performance of life-saving surgery or other
medical treatment. . . . The law does not permit [a physician] to
substitute his own judgment for that of the patient. . .. ""
Based upon this general rule, in Satz v. Perlmutter6 a competent,
73-year-old adult with a terminal condition who was unable to breathe
without a respirator was allowed to refuse treatment. The court asserted
that such refusal can be overcome by certain state interests (the interests
of preserving life, preventing suicide, protecting innocent third parties,
and "preserving the ethical integrity of the medical profession"), but it
held those arguments unpersuasive under the circumstances.
In re Quackenbush7 involved a 72-year-old patient with gangrene of
the legs. The court commented that, "the state's interest . . . in
preserving life weakens and the individual's right of privacy grows as the degree
of bodily invasion increases and the prognosis dims, until the ultimate
point when the individual's rights overcome the state's interest in
preserving life." 8 The patient was permitted to refuse treatment.
31211 N.Y. 125, 105 N.E. 92 (1914).
32 Id. at 129-30, 105 N.E. at 93.
8 See, e.g., Canterbury v. Spence, 464 F.2d 772, 782 & n.34 (D.C. Cir. 1972), cert. denied,
409 U.S. 1064 (1972).
186 Kan. 393, -, 350 P.2d 1093, 1104 (1960).
" 362 So. 2d 160 (Fla. Dist. Ct. App. 1978).
07 156 N.J. Super. 282, 383 A.2d 785 (1978).
" Id. at __, 383 A.2d at 789; accord, Palm Springs Gen. Hosp., Inc. v. Martinez, No.
7112678 (Fla. Cir. Ct. July 2, 1971) (court refused to order treatment that would prolong not
reverse dying process); Kirby v. Spivey, 167 Ga. App. 751 (1983) (next of kin have no
standing to bring wrongful death suit merely because they were not informed of competent
patient's decision to forego treatment); Alexandria Hosp. v. McLellan, Chancery No. 13009
A determination of mental incompetence is necessary to overcome
the presumption that the patient is capable of making his or her own
decision. The mere fact that most persons would consider the decision
irrational is not sufficient, 9 and commitment to a mental institution does
not, of itself, establish the patient's incompetence for these purposes.40
Cases involving refusal of treatment often arise in the context of
Jehovah's Witnesses, whose religious beliefs prohibit receipt of blood
transfusions. For example, In re Estate of Brooks41 involved an adult patient
who was not pregnant, had no minor children, and refused to consent to
life-saving treatment. Long after it had been involuntarily accomplished,
the court held that appointment of a conservator to authorize the
transfusion amounted to an infringement of the patient's right to exercise
freely her religion.
In In re Osborne,42 the decision of a 34-year-old man to refuse a
transfusion was upheld even though he was the father of two children.
The court apparently found persuasive the fact that the man's relatives
showed the desire and ability to support the children if their father died.
Numerous other cases are in accord with Brooks and Osborne4.3
In a few cases courts have ordered Jehovah's Witnesses to submit to
transfusions because of overriding considerations. In Raleigh Fitkin-Paul
(Cir. Ct., Alexandria, Va. Jan. 11, 1982) (emphysema patient refused respiratory and
hemodialysis treatment). But see Commissioner of Correction v. Myers, 379 Mass. 255, -,
399 N.E.2d 452, 457 (1979) (court ordered treatment because state's purported interest in
orderly administration of prison system where patient was an inmate); In re Collins, 44
Misc. 2d 622, 623, 254 N.Y.S.2d 666, 667 (Sup. Ct. Nassau County 1964) (patient cannot put
hospital in impossible situation of deciding between operating without consent or letting
patient die for lack of consent).
11 See Lane v. Candura, 6 Mass. App. Ct. 377, __, 376 N.E.2d 1232, 1235-36 (1978).
40 See Winters v. Miller, 446 F.2d 65, 68 (2d Cir. 1971); Rennie v. Klein, 462 F. Supp. 1131,
1145-46 (D. N.J. 1978).
32 Ill. 2d 361, 205 N.E.2d 435 (1965).
" 294 A.2d 372, 374 (D.C. 1972).
," See, e.g., In re Milideo, 88 Misc. 2d 974, 974-75, 390 N.Y.S.2d 523, 523-24 (Sup. Ct.
Suffolk County 1976) (competent 23-year-old without minor children has right to refuse
treatment); Erickson v. Dilgard, 44 Misc. 2d 27, 28, 252 N.Y.S.2d 705, 706 (Sup. Ct. Nassau
County 1962) (adult has right to refuse transfusion even if it is tantamount to suicide).
In Holmes v. Silver Cross Hosp., 340 F. Supp. 125, 134-35 (N.D. Ill. 1972), a lawsuit was
filed by a patient's administratrix under the Civil Rights Act of 1871. She alleged the Act
had been violated when the hospital and doctors, after waiting for the patient to lose
consciousness, gave a blood transfusion to the decedent even though the patient had refused to
consent on religious grounds. Id. at 129. A conservator appointed to authorize the
transfusion was also named as a defendant. The court held that the action survived the death of
the decedent, the complaint adequately alleged a deprivation of constitutional rights, the
conservator shared the judicial immunity of the magistrate who appointed him, the alleged
actions of the hospital were "under color of state law," and the alleged actions of the doctors
as agents and joint participants with the hospital rendered them liable under the Civil
Rights Act, id. at 129-31, 134-35.
Morgan Memorial Hospital v. Anderson," the court ordered blood to
save the life of a pregnant woman and her child. And, in the often
criticized case of Application of the President and Directors of Georgetown
College, Inc.,4 the fact that the patient was the mother of small children
seems to have been a consideration." These decisions can perhaps be
justified on the basis of the state's legitimate interest in protecting the rights
of innocent third parties.47 In some cases, however, transfusions were
ordered simply on the basis of a desire not to let the patient die,
irrespective of the patient's wishes and without sound legal analysis supporting
the court order.4 1
Whether the patient's decision directly involves religious beliefs or
simply reflects a desire to. let the dying process take its natural course
without burdensome or futile medical interference, it is submitted that a
judicial confrontation frequently could and should be prevented.
For example, in Foster v. Tourtellotte,4 9 a patient in a Veterans
Ad44 42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 (1964).
the Georgetown College case was an altogether unique proceeding in which a single
Federal Court of Appeals judge entered an order allowing a blood transfusion to an
adult member of Jehovah's Witnesses. A doctor and hospital authorities had
appeared originally before a Federal district judge and orally requested entry of an
order permitting blood transfusions to be administered to a patient evidently in
extremis. The request was denied. Later that same day, an 'appeal' was taken to a
single Court of Appeals judge, and the same order was requested of him. In reaching
his determination, the judge went to the hospital and spoke with the patient and her
husband. The husband said that while his wife was obliged to "abstain from blood,"
if the court ordered a transfusion, the matter would be out of his hands. The patient
stated that the transfusion would be against her will, but she also intimated that the
court could take the matter from her hands. The judge then entered the order,
determining to 'act on the side of life.'
In subsequently denying a petition for rehearing en banc, the opinions filed by
other members of that court indicate their misgivings regarding the substantive and
procedural aspects of the action taken. Contrary to appellee's interpretation, we read
the opinions as suggesting a majority of the court would have refused the order.
However, irrespective of the merits of that case, it is readily distinguishable from the
instant one. There, the person alleged to be in extremis was the mother of minor
children. The State might well have an overriding interest in the welfare of the mother in
that situation, for if she expires, the children might become wards of the State.
32 Il1. 2d at -, 205 N.E.2d at 439-40.
" See 32 Ill. 2d at __, 205 N.E.2d at 439-40.
48 See, e.g., United States v. George, 239 F. Supp. 752, 754 (D. Conn. 1965) (patient cannot
seek medical care and simultaneously insist that physician undertake a course of treatment
amounting to malpractice); John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 583,
279 A.2d 670, 673 (1971).
'9 No. CV-81-5046-RMT, (C.D. Cal., Nov. 17, 1981) (mem.).
ministration hospital suffered from amyotrophic lateral sclerosis, the
degenerative and ultimately fatal central nervous system condition
commonly known as "Lou Gehrig's disease." Although competent, the patient
required the assistance of a respirator to breathe. Because this treatment
was prolonging his suffering and offered no hope of a cure, he requested
numerous times that the device be disconnected. Based on the VA
district counsel's advice, however, the hospital refused the request, thus
creating an unnecessary impasse and elevated to the legal arena what ought
to have been a private judgment by the patient based on professional
After a year delay from the time the patient first requested that the
respirator be turned off, the court held: (1) the patient had a legal right
to refuse to consent to further use of the machine; (2) its continued use
after his request for its discontinuance amounted to an invasion of
privacy; (3) removing the respirator would not be euthanasia and would not
be assisting suicide; and (4) the plaintiff's family has no standing to
object to his decision.
The order to disengage the life support system was stayed for 15 days
until the VA (not yet satisfied with the court's reasonable approach)
could appeal the decision. In the meantime, however, the patient went
into a coma and died (as judged by absence of brain function). Finally, on
this basis, the stay was dissolved and the respirator was turned off.
Typical of the foggy thinking that often underlies such controversies
is the following statement concerning Foster in a national health law
newsletter: "Two days after he was declared legally brain dead . . . the
plaintiff's life-support machine was disconnected and he died shortly
thereafter."0 In truth, the patient had died before the respirator was
turned off. He died when his brain ceased to function. Such comments
reflect a complete misunderstanding of "brain death"'" and serve to
perpetuate confusion in this field.62
10 American Hosp. Ass'n, 5 HEALTH L. VIGIL, . 1982 at - (emphasis added).
"1See supra note 6 and text accompanying note 7.
" See also In re Yoder, Civ. No. 81-2690, (Cir. Ct., Cabell County, W. Va., Aug. 31, 1981),
reported in - NAT'L HEALTH LAWYERS Ass'N HEALTH L. DIGEST - (198-). According to the
newsletter report, Golda Yoder, a 76 year old widow, was suffering from cirrhosis of the
liver. She had asked the physicians to disconnect life support equipment and permit her to.
die peacefully. Her seven children were divided on the question, and six of them went to
court to prevent the hospital from "pulling the plug." One daughter wanted the equipment
turned off and said she could not understand why her brothers and sisters did not want her
mother's wish granted. The judge said he was torn by the request, and he visited the patient
to hear her pleas for relief from suffering. The patient was swollen with fluid, physicians
said she had no chance of recovery, and she lapsed into semi-consciousness following the
judge's visit. During a hearing in county court, the physicians passed the judge a message
that the patient had just suffered "brain death." Upon being informed of this, the dissenting
children withdrew their petition for a permanent injunction against terminating the life
It is unfortunate and inhumane to require legal proceedings and their
unavoidable delay, expense, and anxiety to obtain judicial sanction of
what ought to remain a private matter. In most of these cases there is no
real controversy; the patient, the family, the physicians, and the hospital
usually agree that the medical treatment would merely prolong the
inevitable process of imminent death and should be terminated. But
pusillanimity, unreasonable fear of liability, or confusion over applicable
standards often lead to litigation. In the end, the litigation only confirms what
common sense should have dictated at the outset.
Ethical scholars agree that when treatment would be excessively
burdensome to the patient or vould offer no reasonable hope of benefit, it
may properly be withheld or terminated.53 It is submitted that in such
situations judicial proceedings are disruptive and counterproductive. It is
hoped that the example of seeking a court order whenever one of these
situations arise will not be perpetuated.54
When incompetent adults who once were competent are the subjects
of judicial decisions, courts have shown a tendency to give great weight to
the patients' previously expressed wishes. Thus, in the landmark decision
in In re Quinlan,55 the Supreme Court of New Jersey held the right of
privacy is "broad enough to encompass a patient's decision to decline
medical treatment under certain circumstances. '56 The court found that
no external interests of the state justified denying Karen Quinlan's and
her family's desire that the respirator be disconnected when no hope of
recovery existed. 57
To quote the newsletter: the judge "granted the patient's wish but only after being
informed by her physician that she was already 'brain dead.' She died [sic] nine minutes
after the plug on the respirator that continued her ability to breathe was pulled."
" See, e.g., Connery, Prolonging Life: The Duty and Its Limits, in MORAL RESPONSIBILITY
IN PROLONGING LIFE DECISIONS 124, 129 (D. MCCARTHY & A. MORACZEWSKI eds., 1981)
[hereinafter cited as MORAL RESPONSIBILITY]. As to ethics in health care generally, see B. ASHLEY
& K. O'ROURKE, HEALTH CARE ETHICS 385-92 (1978) (if extraordinary medical means
required family should have right to make decision).
" See In re Lydia E. Hall Hosp., 116 Misc. 2d 477, 488, 455 N.Y.S.2d 706, 713 (Sup. Ct.
Nassau County 1982) (decision to terminate dialysis treatment legally permitted).
5570 N.J. 10, 355 A.2d 647 (1976).
51Id. at 40, 355 A.2d at 663.
"'Id. at 40, 355 A.2d at 663-64. The court mandated the establishment of an "Ethics
Committee" to review the patient's prognosis and, assuming the committee's concurrence,
authorized discontinuance of the respirator. Id. at 55, 355 A.2d at 671-72. Interestingly,
notwithstanding the court's order, the physicians and hospital continued to refuse to terminate
use of the life-support system; the patient was "weaned" from the respirator gradually over
a period of weeks, and, although she is emaciated and in an irreversible coma, she is still
Similarly, in the famous "Brother Fox'" case, when the patient (an
83 year old member of a Catholic religious order) had consistently
expressed the desire not to be maintained on artificial life support systems,
the New York Court of Appeals approved discontinuance of the
respirator on which he was being maintained in a permanent "vegetative" state
with no reasonable chance of recovering."
When the patient has never expressed a desire regarding treatment,
however, the case is somewhat more difficult. While generally reaching
living and breathing on her own.
8 In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981). The opinion was a
consolidation of two cases of which In re Eichner, the one involving Brother Fox, was the
" See Storar,52 N.Y.2d at 390-91, 420 N.E.2d at 78-79, 438 N.Y.S.2d at 280-81. Brother
Fox had been a member of the Society of Mary for over 66 years. He had no close family
and considered his religious order to be his "family" for all practical purposes. His best
friend, Father Philip Eichner, was the petitioner.
Brother Fox suffered a cardiac arrest and severe brain damage during surgery, and this
episode required his placement on a respirator. When two neurosurgeons confirmed the
diagnosis of permanent noncognitive state, Father Eichner petitioned in court for permission
to terminate the life support measures. He did this because of Brother Fox's frequent and
strong statements that he would not want extraordinary life support measures used for his
care. Evidence introduced at trial indicated that Brother Fox "first expressed this view in
1976 when [his] community discussed the moral implications of the celebrated Karen Ann
Quinlan case ...." Id. 371-72, 420 N.E.2d at 68, 438 N.Y.S.2d at 270. The opinion gave
weight to the fact that Brother Fox's expressed wishes were consistent with the Catholic
These were formal discussions prompted by [the order's] mission to teach and
promulgate Catholic moral principles. At that time it was noted that the Pope had stated
that Catholic principles permitted the termination of extraordinary life support
systems when there is no reasonable hope for the patient's recovery and that church
officials in New Jersey had concluded that use of the respirator in the Quinlan case
constituted an extraordinary measure under the circumstances. Brother Fox
expressed agreement with those views and stated that he would not want any of this
'extraordinary business' done for him under those circumstances. Several years later,
and only a couple of months before his final hospitalization, Brother Fox again stated
that he would not want his life prolonged by such measures if his condition were
Id. at 372, 420 N.E.2d at 68, 438 N.Y.S. 2d at 270. Both the supreme court and the appellate
division held that Brother Fox had a common-law right to decline treatment and that his
expressed wishes should be honored. In addition, the appellate division held that Brother
Fox also had a constitutional right to decline the extraordinary treatment being given to
The New York Court of Appeals concurred with the opinions of the two lower courts
that the common-law right of every person "of adult years and sound mind ... to
determine what should be done with his own body" was controlling as to Brother Fox. The court
specifically refused, however, to reach the constitutional issues "because the relief granted
to the petitioner, Eichner, is adequately supported by common law principles." 52 N.Y.2d at
377, 420 N.E.2d at 70, 438 N.Y.S.2d at 273. This summary was adapted, with permission,
from the Catholic Health association, 6 LAW REPosTs April, 1981, at 3.
the conclusion that burdensome or futile treatment is not required, courts
have struggled mightily with questions of procedure and mechanisms for
protecting against abuses in these situations. For example, in In re
Spring,60 an end-stage-renal-disease patient had acquiesced in his
lifeprolonging but unpleasant hemodialysis treatment and had received such
treatment for several months before becoming incompetent. His wife and
son finally concluded that the treatment was no longer benefiting the
patient, so they filed for appointment of a guardian and for an order that
treatment be discontinued. The Supreme Judicial Court of Massachusetts
held that it was proper to decide that treatment be withheld because the
patient probably would have made the same choice. The court also noted,
however, that the decisionmaking responsibility should rest with the
probate court and should not be delegated to the attending physician or the
patient's family. This procedural requirement reaffirmed a 1977
precedent in the case of a retarded adult."'
On the other hand, in In re Dinnerstein,2 an intermediate appellate
court in Massachusetts held that prior judicial sanction was not necessary
to implement a do-not-resuscitate order regarding an elderly, comatose,
and terminally ill patient. While the medical and ethical outcome is the
same in Dinnerstein and Spring, the judicial philosophies regarding the
role of the courts in making these decisions appear quite different.
(Perhaps they can be reconciled, however, by viewing Spring as involving
arguably beneficial treatment and Dinnersteinas not.)
Other jurisdictions have struggled with the procedural
considerations. As noted earlier, the Quinlan court mandated what it called "ethics
committees" to assist in the decisionmaking process,"3 and some states
require court approval for any decision to withhold life-saving care."' A
California court has held that "even incompetent persons have a
constitutional right to refuse treatment," 5 but required the appointment of a
guardian in order to carry out that right.6
60 380 Mass. 629, 405 N.E.2d 115 (1980).
01 A similar procedural requirement was established in Superintendent of Belchertown
State School v. Saikewicz, 373 Mass. 728, -, 370 N.E.2d 417, 433-34 (1977).
6 380 N.E.2d 134 (Mass. App. Ct. 1978).
" See supra note 57.
See, e.g., In re Colyer, 51 U.S.L.W. 2583, - (U.S. Mar. 10, 1983); Severns v. Wilmington
Medical Center, Inc., 421 A.2d 1334, 1337 (Del. 1980); In re Lydia E. Hall Hosp., 116 Misc.
2d 477, 487-88, 455 N.Y.S.2d 707, 712 (Sup. Ct. Nassau County 1982); Leach v. Akron Gen.
Medical Center, 68 Ohio Misc. 11, -, 426 N.E.2d 809, 815 (1980).
66 In re Young, 48 U.S.L.W. 2238, - (U.S. Sept. 11, 1979), quoted in Bernstein, Death
with Dignity: Is JudicialInvolvement Necessary?,56 Hosp. May 1, 1982, 93, at 93. On the
other hand, the Attorney General of California has opined that courts do not have the
authority to approve the termination of treatment if death will result. Op. Cal. Att'y Gen. No.
81-508 (July 2, 1982).
See also In re Guardianship of Langland, No. SWP 16078, (Super. Ct., Los Angeles
Irrespective of the procedural aspects of these difficult situations, it
appears that the courts are slowly coming to a consensus: treatment that
is overly burdensome to the patient and/or would not provide the patient
a reasonable hope of benefit is not legally mandated; furthermore,
omission of that treatment does not give rise to civil or criminal liability. The
burden-benefit rationale can be the subject of much dispute when one
attempts to apply it to a particular situation. Nowhere is this better
illustrated than in the California case Barber v. Superior Court6. 7
In Barber,a patient named Clarence Herbert was on life-support
systems because a cardiac arrest had resulted in severe brain damage and a
permanent comatose condition. At the request of the family, and with the
concurrence of the physicians, the respirator and other life support
equipment were removed. When Mr. Herbert continued to breathe but showed
no signs of improvement in his condition, the physicians, after
consultations with the family, "ordered removal of the intravenous tubes which
provided hydration and nourishment." Thereafter, the patient received
only comfort care until his death.
The two physicians were charged with murder and conspiracy to
commit murder. After a lengthy preliminary hearing, a magistrate in Los
Angeles dismissed the charges, but a superior court ordered the complaint
reinstated. On petition by the physicians, an appellate court then issued a
writ prohibiting further action on the charges.
Commenting at the outset that "a murder prosecution is a poor way
to design an ethical and moral code for doctors. . .," the court narrowed
the inquiry to whether, in reference to the definition of murder, the
physicians' conduct could be considered "unlawful." Because of the "gap
between the statutory law and recent medical developments," it determined
that this question must be determined on the basis of medical-ethical
standards rather than criminal law principles.
[W]e view the use of an intravenous administration of nourishment and
fluid, under the circumstances, as being the same as the use of the
respirator or other form of life support equipment.
The prosecution would have us draw a distinction between the use of
mechanical breathing devices and mechanical feeding devices such as
intravenous tubes. The distinction urged seems to be based more on the
emotional symbolism of providing food and water to those incapable of
providing for themselves rather than on any rational difference in cases such as
County Cal., Aug. 5, 1980), in which the court appointed the patient's son-in-law
conservator of a 66-year-old patient in a persistent "vegetative" state. The conservator was given
authority to authorize or refuse to authorize all future medical treatment, with the
exception of oxygen and feedings. The court found that the patient would not have wanted to be
treated if there was "no reasonable possibility of him ever emerging from his coma."
67 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983).
the one at bench. [Citing the President's Commission Deciding to Forego
Medical nutrition and hydration may not always provide net benefits to
patients. Medical procedures to provide nutrition and hydration are more
similar to other medical procedures than to typical human ways of
providing nutrition and hydration. Their benefits and burdens ought to be
evaluated in the same manner as any other medical procedure.
Evaluating Mr. Herbert's situation in light of the benefits and
burdens of the life support systems and intravenous tubes, and holding that
there was "no duty to continue treatment, once it has proved to be
ineffective," the court concluded that omitting further treatment for Mr.
Herbert "was not an unlawful failure to perform a legal duty," and
dismissed the charges.
As the court stated, "[this case . . . belies the belief expressed by
many that such decisions would not likely be subjects of criminal
prosecution." However, the ultimate outcome reinforces the conclusion that
judicial proceedings are usually an inappropriate way to make these
difficult decisions. It is preferable that concerned, conscientious individuals
(such as Mr. Herbert's family) be given full medical, ethical, pastoral, and
social support and then be allowed to make a choice of treatments in
accordance with the patient's wishes or best interests. The judiciary should
become involved only when an impasse arises or clear abuses occur.
In summary, the burden-benefit standard is an ethically and legally
acceptable norm for currently competent patients and those who once
were competent." While its application in a given case can be difficult,
Barber contains a lengthy discussion of some of the ethical principles.
In examining this issue we must keep in mind that the life sustaining technology
involved in this case is not traditional treatment in that it is not being used to
directly cure or even address the pathological condition. It merely sustains biological
functions in order to gain time to permit other processes to address the pathology.
The question by this modern technology is, once undertaken, at what point does
it cease to perform its intended function and who should have the authority to decide
that any further prolongation of the dying process is of no benefit to either the
patient or his family?
A physician has no duty to continue treatment, once it has proved to be
ineffective. Although there may be a duty to provide life-sustaining machinery in the
immediate aftermath of a cardio-respiratory arrest, there is no duty to continue its use
once it has become futile in the opinion of qualified medical personnel.
A physician is authorized under the standards of medical practice .to discontinue
a form of therapy which in his medical judgment is useless .... If the treating
physicians have determined that continued use of a respirator is useless, then they may
decide to discontinue it without fear of civil or criminal liability. By useless is meant
that the continued use of the therapy cannot and does not improve the prognosis for
Of course, the difficult determinations that must be made under these principles
is the point at which further treatment will be of no reasonable benefit to the patient,
greater communication and education among health care professionals
who should have the power to make that decision and who should have the authority
to direct termination of treatment.
No precise guidelines as to when or how these decisions should be made can be
provided by this court since this determination is essentially a medical one to be
made at a time and on the basis of facts which will be unique to each case. If specific
procedural rules are to be adopted in this area in order to protect the public interest,
they must necessarily come from that body most suited for the collection of data and
the reaching of a consensus-the Legislature. However, we would be derelict in our
duties if we did not provide some general guidelines for future conduct in the absence
of such legislation.
'[Tihere must be a way to free physicians, in the pursuit of their healing
vocation, from possible contamination by self-interest or self-protection concerns which
would inhibit their independent medical judgements for the well-being of their dying
patients. We would hope that this opinion might be serviceable to some degree in
ameliorating the professional problems under discussion.'
Several authorities have discussed the issue of which life-sustaining procedures
must be used and for how long their use must be maintained in terms of 'ordinary'
and 'extraordinary' means of treatment. The use of these terms begs the question. A
more rational approach involves the determination of whether the proposed
treatment is proportionate or disproportionate in terms of the benefits to be gained versus
the burdens caused.
Under this approach, proportionate treatment is that which, in the view of the
patient, has at least a reasonable chance of providing benefits to the patient, which
benefits outweigh the burdens attendant to the treatment. Thus, even if a proposed
course of treatment might be extremely painful or intrusive, it would still be
proportionate treatment if the prognosis was for complete cure or significant improvement
in the patient's condition. On the other hand, a treatment course which is only
minimally painful or intrusive may nonetheless be considered disproportionate to the
potential benefits if the prognosis is virtually hopeless for any significant improvement
Several authorities have struggled with this issue and some consensus has been
reached on the theory if not the terminology.
'[Olne would have to think that the use of the same respirator or life support
system could be considered 'ordinary' in the context of the possibly curable patient
but 'extraordinary' in the context of forced sustaining by cardio-respiratory processes
of an irreversibly doomed patient.'
Thus, the determination as to whether the burdens of treatment are worth
enduring for any individual patient depends on facts unique to each case, namely, how
long the treatment is likely to extend life and under what conditions. '[S]o long as a
mere biological existence is not considered the only value, patients may want to take
the nature of that additional life into account as well.'
Of course, the patients interests and desires are the key ingredients of the
decision making process. When dealing with patients for whom the possibility of full
recovery is virtually non-existent, and who are incapable of expressing their desires,
there is also something of a consensus on the standard to be applied.
'[T]he focal point of decision should be the prognosis as to the
reasonablepossibility of return to cognitive and sapient life, as distinguishedfrom the forced
continuance of that biological vegetative existence . .. .'
'Prolongationof life,'. . . does not mean a mere suspension of the act of dying,
should help to minimize the inclination to seek prior judicial sanction in
Children and the Handicapped
Cases involving whether, and if so how, to treat adults are difficult
enough, but when the patient is a minor another set of conflicting
considerations enters the picture.
As a general rule, a zone of privacy surrounds the parent-child
relationship such that parents have considerable freedom in how they raise
their children and control their lifestyles.69 But when the health or
wellbeing of children is involved, courts have sometimes intervened to order
corrective or life-saving therapy, even in the face of the parents' (and
sometimes the child's) objections.
The children of Jehovah's Witness parents are often the subject of
court-ordered treatment,"0 apparently on the theory that the state's
interbut contemplates, at the very least, a remission of symptoms enabling a return
towards a normal, functioning, integratedexistence.'
Id. at -, 195 Cal. Rptr. at 490-92. For additional ethical considerations, see supra note 53.
The Barber court also expressly rejected the contention that judicial approval must be
sought in all cases:
While guardianship proceedings might be used in this context, we are not aware of
any authority requiringsuch procedure ...
In the absence of legislation requiring such legal proceedings, we cannot say that
failure to institute such proceedings made petitioners' conduct unlawful ...
Under the circumstances of this case, the wife was the proper person to act as
surrogate for the patient with the authority to decide issues regarding further
treatment, and would have so qualified had judicial approval been sought. There is no
evidence that there was any disagreement among the wife and children. Nor was
there any evidence that they were motivated in their decision by anything other than
love and concern for the dignity of their husband and father.
Furthermore, in the absence of legislative guidance, we find no legal requirement
that prior judicial approval is necessary before any decision to withdraw treatment
can be made.
" See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sisters, 268 U.S.
510 (1925); Myers v. Nebraska, 262 U.S. 390 (1923).
'0 See, e.g., People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769 (1952); State v.
Perricone, 37 N.J. 463, 181 A.2d 751, cert. denied, 371 U.S. 890 (1962); Muhlenberg Hosp. v.
Patterson, 128 N.J. Super. 408, 320 A.2d 518 (1974); see also Hoener v. Bertinato, 67 N.J.
Super. 517, 171 A.2d 140 (1961); In re Sampson, 317 N.Y.S.2d 641 (Fam. Ct. 1970), affd, 29
N.Y.2d 900, 278 N.E.2d 918; 328 N.Y.S.2d 686 (1972); In re Green, 448 Pa. 338; 292 A.2d
In Jehovah's Witnesses in the State of Washington v. King County Hosp. Unit No. 1,
278 F. Supp. 488 (W.D. Wash. 1967), affd, 390 U.S. 598 (1968), a group of Jehovah's
Witnesses challenged the practice of involuntarily administering blood transfusions-as
apparently had been done in the past, and, it was alleged, would be done in the future-as a
violation of their constitutional rights. A three-judge district court dismissed the case and
held that Washington statutes empowering state judges to declare children to be dependents
est in life overrides the parents' right to exercise their religion, at least
when this would be to the child's detriment and would deprive the child
of an ability to determine his own beliefs upon reaching the age of
majority.71 Jehovah's Witnesses, however, are not the only parties in cases
ordering treatment. For example, in Custody of a Minor,72 a Massachusetts
court ordered that a young leukemia patient be removed from his
parents' custody and that chemotherapy, to which the parents objected, be
instituted. The court commented that although parents have much power
to make decisions about their childrens' lives, their autonomy is not
absolute, and the private realm of family life can be entered by the judiciary
when a parental decision jeopardizes a child's safety. The court
specifically found that the right to control and nurture children carries thd
correlative duty to care for them and protect them from harm. Similarly, in
Maine Medical Center v. Houle,73 a court intervened under the parens
patriae doctrine to order life-saving surgery for a handicapped newborn.
The child was retarded and had a congenital defect that prevented
normal feeding and breathing. In ordering the corrective treatment, the court
found that the parents' decision to refuse surgery (and thus to let the
child die) constituted neglect.74 In numerous other cases courts have
ordered treatment for a variety of conditions. 75
The authorities are by no means unanimous. In 1979, a California
court refused to order corrective heart surgery for a 12-year-old Down's
syndrome child even though he did not know his parents and they had
shown no interest in his welfare since shortly after his birth.7 ' Four years
later, following the petition of the child's "psychological parents" to
become his guardians, the court held: (1) the evidence was sufficient to
sustain the findings that the plaintiffs had become his de facto parents; (2)
that his natural parents' retention of custody would continue to cause
serious detriment to him; (3) that his best interests would be served by an
award of custody to the plaintiffs; and (4) that cardiac catheterization
and corrective surgery could be authorized by the new guardians. 77 Other
cases in which permission to order treatment against parents' wishes was
denied involved surgery for curvature of the spine,78 a congenital arm
deformity,79 and cleft palate. 0 Distinctions can perhaps be drawn on the
basis of the nonemergency nature of the conditions involved in these
cases, yet the same cannot be said of In re Infant Doe."1
The Infant Doe case has become the subject of a nationwide debate
that typifies the lack of consensus within society on these difficult
issues.82 The patient was a newborn Down's syndrome infant who, in
addition to the retardation that accompanies Down's syndrome, had a
congen76In re Phillip B., 92 Cal. App. 3d 796, 156 Cal. Rptr. 48 (1979), cert. denied, 445 U.S. 949
77Guardianship of Phillip B., 139, Cal. App. 3d 407, 419-21, 188 Cal. Rptr. 781, 788-92
(1983). Reportedly, it is uncertain whether surgery now will benefit the child.
78 In re Green, 448 Pa. 338, 292 A.2d 387 (1972).
79In re Hudson, 13 Wash. 2d 673, 126 P.2d 765 (1942).
80 In re Seiferth, 309 N.Y. 80, 127 N.E.2d 820 (1955).
" No. Gu-8204-004A (Ind. Cir. Ct. Apr. 13, 1982).
82 See, e.g., Duff & Campbell, On Deciding the Care of Severely Handicapped or Dying
Persons: With ParticularReference to Infants, 57 PEDIATRICS 487 (1976); Robertson,
Involuntary Euthanasiaof Defective Newborns: A Legal Analysis, 27 STAN. L. REV. 213 (1975);
Robertson & Fost, Passive Euthanasiaof Defective Newborns: A Legal Analysis, 88 J.
PEDIATRICS 883 (1976); see also Duff & Campbell, Moral & Ethical Dilemmas in the
SpecialCareNursery, 289 NEW ENG. J. MED. 890 (1973); Horan, Euthanasia,Medical Treatment &
the Mongoloid Child:Death as a Treatment of Choice?, 27 BAYLOR L. REv. 76 (1975); Shaw
& Shaw, Dilemmas of "Informed Consent" in Children, 289 NEW ENG. J. MED. 885 (1973);
accord Diamond, AMA Guideline on Defective Newborns Raises Ethical, Legal Questions,
62 Hosp. PROGRESS, Sept. 1981, at 8; Fost, Baby Doe and FederalFunding:Putting
Hospitals on Notice, 12 HASTINGS CENTER REP., Aug. 1982, at 5; McCarthy, Treating Defective
Newborns: Who Judges ExtraordinaryMeans?, 62 Hosp. PROGRESS, Dec. 1981, at 45; Paris,
Terminating Treatment for Newborns: A Theological Perspective, 10 L. MED. & HEALTH
CARE, June 1982, at 120; Rebone, "Minimum Quality of Life": Why Parents,Courts Chose
Infant Doe's Death, 63 Hosp. PROG., June 1982, at 10; Taub, Withholding Treatment from
Defective Newborns, 10 L. MED. & HEALTH CARE,Feb. 1982, at 4. See generally INFANTICIDE
AND THE HANDICAPPED NEWBORN (D. HORAN & M. DELAHOYDE eds. 1982) [hereinafter cited as
INFANTICIDE]; Deciding, supra note 74, at 197-230.
ital defect that, as in Houle, prevented the normal intake of food and
liquids. At the request of his parents, and with the concurrence of the
mother's obstetrician (although reportedly contrary to the advice of
pediatricians), the parents refused to consent to corrective surgery and
directed that the baby not be given fluids or nourishment in any manner.
Despite furious legal maneuverings by a local prosecutor, right-to-life
groups, and numerous individuals who offered to adopt the child, the
Indiana courts refused to order surgery and also refused to direct that the
baby be nourished and hydrated. The child died six days after his birth."8
As a direct result of Infant Doe, the Federal Government sent a
notice to all health care providers reminding them that the failure to feed or
care for handicapped infants may be a violation of Federal law.", In
addition, the United States Department of Health and Human Services has
issued regulations that require health care providers who treat infants to
post a notice advising of the requirements of Federal law and of the
availability of a toll-free "hotline" telephone number for reporting perceived
abuses of the rights of handicapped infants. These developments have
generated both a storm of protest from medical organizations 5 and a
degree of support from others,88 however, the survival of the regulations is
in doubt at this writing.
In addition to the controversy surrounding the treatment of
handicapped infants, the care of retarded adults remains a conundrum.
Because these patients have never been competent to express their desires,
the courts seem to view them as children and thus intervene to order
treatment that is medically efficacious even though many competent
persons might quite reasonably (and legally) decide to refuse the same
Superintendent of Belchertown State School v. Saikewiczs7 involved
an institutionalized 67 year old, profoundly retarded man suffering from
incurable leukemia. Physicians proposed that he undergo chemotherapy
treatments because it might afford him a brief remission in the progress
of the disease. The treatment was both unpleasant and painful, and the
patient's guardian ad litem concluded that it would be in the patient's
best interest to forgo further medications. The Supreme Judicial Court of
[t]here is a substantial distinction in the state's insistence that human life
" See Rebone, supra note 82 at _. Deciding, supra note 74, at 224 n.92.
, Deciding, supra note 74, at 467-68.
85 See, e.g., American Academy of Pediatrics v. Heckler, 561 F. Supp. 395 (D.D.C. 1983)
(striking down earlier version of federal regulations).
8 See, e.g., Pro-Life Committee Backs Rule on Treating Handicapped (news release of U.S.
Catholic Conference, Aug. 26, 1983).
373 Mass. 728, 370 N.E.2d 417 (1977).
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 [his] life may be briefly extended.8
In re Storar89 involved a terminally ill, profoundly retarded adult
cancer patient. His guardian asked for permission to discontinue blood
transfusions that compensated for hemorraging at the tumor site. The
treatment did not involve what most people would consider excessive
pain. The New York Court of Appeals held that discontinuance of the
transfusions was improper in light of the fact that with them the patient
was functioning at his usual level of mental and physical activity, whereas
such level would not have been possible if the treatment had been
discontinued. The court analogized the transfusions to food; while they would
not cure the cancer, they were intended to "eliminate the risk of death
from another treatable cause."90 Though the patient did not like the
treatments, the court concluded that they were not in and of themselves
an extraordinary burden. When blood was given, the patient "was
essentially the same as he was before except of course [that] he had a fatal
illness which would ultimately claim his life."'9 The court also
commented that, "[a] court should not in the circumstances of this case allow
an incompetent patient to bleed to death because someone, even someone
as close as a parent or sibling, feels this is best for one with an incurable
One may quarrel with the differing outcomes of Saikewicz and
Storar,but the two courts are at least consistent in their definition of the
applicable standard. Both courts eschewed such unnecessary fictions as
an incompetent's right of privacy or presumed wishes. They chose instead
to weigh the benefit and burden of the proposed medical treatment and
to require it if medically necessary. Other jurisdictions should adopt this
common sense approach.
Physicians' orders not to resuscitate patients deserve special
mention. It has become customary medical practice to institute
cardio-pulmonary resuscitation (CPR) whenever a patient suffers cardiac arrest.
Originally, this procedure was intended to avoid a person's sudden and
unexpected death, as, for example, in the case of a heart attack or
Id. at -, 370 N.E.2d at 425-26.
- 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981).
Id. at 381-82, 420 N.E.2d at 72, 438 N.Y.S.2d at 275.
" Id. at 382, 420 N.E.2d at 72-73, 438 N.Y.S.2d at 275-76.
dent. e3 More recently, however, the procedure has become accepted for
use on all patients unless the physician has specifically ordered otherwise.
Thus, CPR is often attempted even though death is imminent, expected,
and unavoidable. In some cases, terminally-ill patients have been
resuscitated numerous times before finally succumbing.'
In response to such futile, unnecessary, and inhumane use of medical
resources, physicians have begun to issue do-not-resuscitate (DNR)
orders that alert nurses and other physicians that CPR is not appropriate
for the patient. While the DNR order has sometimes been questioned,"
its legality has been upheld.96 In the only known case to invalidate a
DNR order, Hoyt v. St. Mary's RehabilitationCenter,97 a peculiar set of
circumstances caused the court to conclude that the order was
inappropriate as to the particular patient. But the court did not appear to
question the propriety of DNR orders generally.
The President's Commission concluded that because the legal
authority is somewhat sparse on this issue, "[i]mprovements in this
situation probably depend on clarification of the underlying standard of
socially accepted medical practices for decisions to forgo resuscitation.""
It is not clear, however, why the issues surrounding DNR should be
treated any differently than those involving decisions to forgo other forms
of medical treatment. As shown above, many courts agree that
withholding treatment can be appropriate." When decisionmaking in this area
reflects "true respect for the spiritual and physical dignity of patients,"100
the DNR order should be as legally proper as, for example, the decision in
Saikewicz to forgo chemotherapy.
In the words of the President's Commission, "[i]f hospitals ensure
that decisionmaking practices are reasonable and that internal review and
advice are readily available, decisions concerning resuscitation will seldom
need to come before courts.""' The Commission added:
9' See generally Deciding, supra note 74, at 231-38.
" Personal knowledge of the author. CPR is not without trauma: "[m]any of the procedures
are obviously intrusive, and some are violent in nature. The defibrillator, for example,
causes violent (and painful) muscle contractions which ... may cause fracture of vertebrae
or other bones." In re Dinnerstein, 380 N.E.2d 134, 136 (Mass. App. Ct. 1978).
91See, e.g., Levin & Levin, DNR: An Objectionable Form of Euthanasia,3 SPEcIALTY L.
DIGEST: HEALTH CARE, Oct. 1981, at 5. This confusing and poorly reasoned article was
written by a physician and a law student.
" See, e.g., In re Dinnerstein, 380 N.E.2d at 139.
97 Reported in Deciding, supra note 74, at 238 n.29.
98 Id. at 239.
" See supra notes 32-54 and accompanying text.
100 L. Reilly, Prolonging Life Conscience Formation,in MORAL RESPONSIBILITY supra note
53, at 139.
101Deciding, supra note 74, at 252.
[i]n states and localities in which prosecutors have indicated that they
do not condone DNR orders and that they might bring criminal charges
against physicians or hospitals that use such policies, the public, as well as
health care professionals and institutions, should defend the practice and
make it clear that nonresuscitation is being used thoughtfully and
In summary, a DNR order can be an ethically" 3 and legally
appropriate option with respect to people for whom resuscitation would not be a
benefit, or for whom it would be an unreasonable burden. Persons who
disagree often cite a danger of liability to support their decisions to
resuscitate. This argument is unfounded. An omission cannot result in liability
unless there was a duty to act. Since the law adopts as its benchmark the
standards of the medical profession, the legal system will accept a sound
medical-ethical judgment not to resuscitate. A hysterical reaction to the
possibility of litigation should not be allowed to conceal this fact.
In all cases, the competent expression of a patient's desires regarding
treatment has been given considerable if not conclusive weight.1 0 4 This
fact led to the emergence of the so-called "living will," which is not
binding, and the passage in some states of a "durable power of attorney" or
"natural death act" statute. Such developments are discussed in the
President's Commission's report,10 5 and they have been chronicled
voluminously elsewhere.0 6 We will not consider them at length here. It is
sufficient to say that these are attempts to give effect to a competent patient's
expression of his or her wishes, and authorities of all disciplines seem to
agree that those wishes should be carried out absent extraordinary
overriding circumstances.' 7 To quote again from the President's Commission:
[t]he Commission commends the use of advance directives. Health care
professionals should be familiar with their state's legal mechanisms for
implementing advance directives on life-sustaining treatment and encouraging
patients to use these resources. In particular, practitioners can alert patients
2 ld. at 253.
103 See generally B. ASHLEY & K. O'ROURKE, supra note 53, at _; MORAL RESPONSIBILrrY
supra note 53, at _.
104 See supra text accompanying notes 56-59.
Deciding, supra note 74, at 136-53, 309-88.
306 See, e.g., Bok, PersonalDirections for Care at the End of Life, 295 NEw ENG. J. MED.
367 (1976); Gore, "Uniform Determinationof Death" Act Would Guide Legal/Medical
Decisions, 63 Hosp. PROGRESS, Nov. 1982, at 44; Modell, A "Will" to Live, 290 NEW ENG. J.
MED. 907, - (1974).
307 See, e.g., Deciding, supra note 74, at ch. 4. "In general, a person's choices regarding care
ought to override the assessments of others about what best serves that person." Id. at 121.
to the existence of durable power of attorney devices (in states where they
exist) and urge them to discuss their desires about treatment with a proxy
decisionmaker. In states without applicable legislation, practitioners can
still inform their patients of the value of making their wishes known,
whether through a living will or more individual instructions regarding the
use of life-sustaining procedures under various circumstances.10 8
Caution must be exercised to ensure that written directives and any
statutes that give them binding effect cannot be abused in such a way as
to permit euthanasia. Numerous commentators have warned of such
dangers. '0 9 With that caveat in mind, however, a patient's written directive is
a valuable tool for determining the dividing line between curing the sick
and merely caring for the dying.
Summary of the Law
In retrospect, the law regarding termination or withholding of
treatment is not so confused or unreasonable as some would claim. 10 For the
most part the courts have taken a cautious and reasonable approach to
the issues. Although there is some variation as to whether prior judicial
approval is required and what surrogates will be allowed to speak for the
patient, there is little question about the standard to be applied. A
patient's competent expression of treatment desires usually should be
respected. When there is no indication of the patient's wishes, the
decision turns on an analysis in which the benefit to be gained by treatment
is weighed against the burdens that the treatment may cause.
This has long been the approach in much of the medical profession.
For example the practice of writing no code orders or of giving them
verbally has existed for years. The practice carries no malevolent overtones.
It is a matter of professional judgment of those giving the order that further
efforts at CPR will serve no medical purpose. The practice represents an
abandonment of the medical ethic that life must be sustained, even
artificially, at whatever cost, forever. But the abandonment has been forced on
the medical profession by the emerging technology which creates the
capacity to do just that, i.e.-to artificially maintain pulse and respiration
The law has come to the same conclusion that medicine and society
308 Deciding, supra note 74, at 153.
109 See, e.g., INFANTICIDE supra note 82, at _; Nesbitt, TerminatingLife Support for
Mentally Retarded, Critically Ill Patients: The Prosecutor'sPerspective, 3 J. LEGAL MED. 245
11 See, e.g., Rosenberg, Pulling the Plug: Could You Be Charged With Murder?, 60 MED.
ECON. 84 (1983).
.. Clarke, The Choice to Refuse or Withhold Medical Treatment: The Emerging
Technology and Medical-Ethical Consensus, 13 CREIGHTON L. REV. 795, 833 n.197 (1980).
are approaching; namely, that it is not always necessary to employ every
available treatment to postpone death. There are occasions when it
respects life more to let it go than to cling tenaciously to it.
Skeptical health care professionals may nevertheless quite
legitimately counter that this is all well and good as a general proposition, but
that it makes decisionmaking no less difficult or precarious in the
individual case. This is true. In the concluding segment of this Article are some
recommendations for addressing that concern.
IV. THE PREFERRED MEDICAL-LEGAL APPROACH
At the end of The Tragedy of King Lear, the Earl of Kent comments
on the king's death: "Vex not his ghost. 0, let him pass! He hates him
that would upon the rack of this tough would stretch him out longer." 2
Attorneys, courts, and health care providers would profit from
remembering those words. They convey a basic sense of patient autonomy
in decisionmaking and the lack of an absolute duty to treat in all cases.
Unfortunately, too often these principles are overshadowed by a
misunderstanding of legal concepts and the functions of the judicial system.
The physician wants immunity from prosecution or civil liability. The
patient wants relief from suffering. The family may want the same or may
(in the rare case) want to hasten the moment of death for their own
reasons. The hospital and the nurses are caught in the middle. Confusion
reigns. Communication breaks down and impasse is reached. The parties
seek legal counsel, each of whom is primarily concerned with protecting
his or her client. Someone goes to the civil court or, worse, calls the
criminal authorities. There is little wonder that a well-reasoned decision is nof
achieved in such a volatile atmosphere.
A classic example of this scenario is found in Bacchiochi v. Johnson
Memorial Hospital."8 Even though Melanie Bacchiochi was dead,'14 the
physician would not turn off the respirator without a promise of
immunity from prosecution. The district attorney refused to make such a
promise, and the patient's family were forced to seek a court order. The
court, however, felt the question was a private matter "best determined
by the family, by the attending physicians and by the hospitals involved
. ." The court refused to order the respirator turned off, and there the
matter stood until the prosecutor finally agreed, for the one case only,
that no prosecution would result. Barber v. Superior Court," 5 discussed
W. SHAKESPEARE, KING LEAR Act V, scene 3.
"' See No. 256126 (Conn. Super. Ct., Mar. 13, 1981).
114 Her brain had totally and irreversibly ceased to function.
"l 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983).
above, was a similarly needless confrontation.' 0 In each of these cases
the reasonable, legal course of action was not taken at least in part because
of a misplaced fear of the judicial system. Ironically, the parties were
embroiled in a far worse legal battle than they would have been had they
followed their good medical judgment without regard to legal ramifications.
But because of a misunderstanding of and apprehension about the law and
the judicial system, the actors caused law to be a problem it was not
intended to be and sought from it a remedy it ought not to have been asked
to provide." 7
When it is necessary to prevent active euthanasia or child abuse and
neglect, for example, recourse to the legal system should not be avoided.
But most decisions to forego life-prolonging treatment do not involve
such macabre considerations. Most involve patients whose conditions are
hopeless and for whom treatment would be futile. The proper response to
the many questions in this area lies in education, communication, and
preventive law. This is so for the following reasons:
(1) the law will support a decision not to give a patient treatment that
would be futile or excessively burdensome; (2) the law will support
discontinuing a respirator on a patient whose entire brain has irreversibly ceased
to function; (3) the law recognizes that in some situations reasonable minds
can differ, and so will defer to a well-reasoned medical-ethical decision that
stems from free and open communication among all persons concerned; and
(4) the best legal approach is to be prepared for such situations." 8
The first two points were discussed earlier in this Article, but the third
and fourth require some explanation.
Each patient is different. Each has his or her own attitudes toward
serious illness, his or her own emotional and spiritual needs, his or her
own temporal obligations, his or her own tolerance for suffering. What
may seem beneficial to one may be overly burdensome to another.
Medical treatment cannot, therefore, be classified a priori as "ordinary" or
"extraordinary," "obligatory" or "nonobligatory."" 9 The decision must be
made by or for each person based on a thorough consideration of all the
facts of the case and with the patient's wishes or best interests foremost
in mind. When this is done, little danger of liability will attach.
In re Spring2 0 supports this conclusion. The court stated that legal
precedent "suggests that the doctor will be protected if he acts on good
"0 See also In re Lydia E. Hall Hospital, 116 Misc. 2d 477, 488, 455 N.Y.S.2d 706, 713 (Sup.
Ct. Nassau County 1982).
" J. SHOWALTER & B. AUDREW, To TREAT OR NOT To TREAT - (1984).
1, B. ASHLEY & K. O'ROURKE, supra note 53, at 382-85; see also Deciding, supra note 74, at
"1O 380 Mass. 629, 405 N.E.2d 115 (1980).
faith judgment that is
When reasonable minds differ, therefore, the perceived constraints of
medical and ethical principles actually become emancipators. Examining those
principles and discerning their underlying values enable health care
providers, patients, and families to apply them according to the dictates of their
own consciences. 'The process of adhering to those standards and examining
the values behind them also gains the physician legal protection. For it is to
these standards that the courts look in determining the physicians's legal
The preferred medical-legal approach to terminating-treatment
cases, therefore, is to prepare for them long before they arise.
"[Alnticipating these problems and establishing operational processes [to
deal with them] will greatly reduce the need for court actions.' 2 Because
the issues are primarily medical and ethical in nature rather than legal,
their solution depends more on management and communication skills
than on legal talents. In the words of the President's Commission,
"decisionmaking about life-sustaining care is rarely improved by resort to
courts,"'12 and "a process of collaborating and sharing information and
responsibility between care givers and patients generally results in
mutually satisfactory decisions."' 22
To help their health care clients reduce the incidence of litigation,
attorneys should assist physicians and hospitals to establish an ongoing
educational and collaborative process to focus on these difficult questions.
This process should educate all members of the health care team in the
underlying social, ethical, medical, and legal concepts involved. It should
cut through the emotional, empty rhetoric ("death with dignity," "right
to die," "right to life," "quality of life," etc.) to address the root
issues-how to maximize the patient's well-being-while recognizing basic
fairness and the right to self-determination. 2 ' It should enable all
inter' Id. at -, 405 N.E.2d at 121.
122 J.SHOWALTER & B. AUDREW, supra note 117, at 8 (quoting David L. Oskandy, Severely
Defective Newborns: The Catholic Physician's Decision Whether To Treat (unpublished
paper submitted for the second annual CHA Legal Writing Contest, (1983)).
123 J. SHOWALTER & B. AUDREW, supra note 117, at 9.
124 Id. at 247.
125Deciding, supra note 74, at 44.
MseEthics committees were first judicially mandated by the Quinlan court to confirm
diagnosis and prognosis. See In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). Other possible
functions of ethics committees were outlined by the President's Commission.
They can provide a forum for discussing broader social and ethical concerns
raised by a particular case; such bodies may also have an educational role, especially
by teaching all professional staff how to identify, frame, and resolve ethical problems.
They can be a means for formulating policy and guidelines regarding such
ested persons, including patients and families, to become involved. It
should include the participation of a standing "ethics committee" for the
purpose of being a forum to settle controversies internally. 27 It should
produce written hospital policies and procedures dealing with the most
There is a wide variety of approaches to these prophylactic measures.
Each facility and medical staff should jointly build mechanisms for
improving their medical-ethical decisionmaking and to free it "from
misunderstanding about the dictates of law and morality."" 29 If this can be
done, the need and desire to litigate these questions should be greatly
The recently compiled work of the President's Commission for the
Study of Ethical Problems in Medicine and Biomedical and Behavioral
Research129 is an invaluable resource in this regard. In slightly over three
years, the Commission built consensus on many of these questions.
Numerous organizations are moving forward to help the health care field and
the general public understand and implement the Commission's findings.
The preferred medical-legal approach is to encourage and lead this
ongoing educational effort.
This Article began by reviewing the state of the law concerning
"brain death." It is suggested that there is virtual unanimity on the
propriety of diagnosing death on the basis of total cessation of all brain
functions. It urged the medical and legal professions to regard this question as
no longer worthy of debate.
The Article then summarized the most important cases concerning
decisions to terminate or withhold medical care. It concluded that
although some procedural differences do exist, most notably regarding the
necessity of advance judicial approval, the authorities agree that patient
preferences should usually be determinative; when the patient's desires
are unknown a decision should be made by weighing the degree of burden
it would cause and the benefit it would provide. It is the contention of
this Article that this judgment can and should properly be made without
judicial involvement; that the courts should be asked to intervene only in
Finally, they can review decisions made by others (such as physicians and
surrogates) about the treatment of specific patients or make such decisions themselves.
Deciding, supra note 74, at 160-61.
127Deciding, supra note 74, at 99.
129 See supra note 2. The general conclusions of the President's Commission regarding
decisions to terminate or withhold treatment are set forth in the Appendix.
those infrequent situations in which the criminal law is implicated, for
example, when child abuse or euthanasia is suspected.
Finally, the Article strongly suggests that problems in this field stem
mostly from poor communication and insufficient education. It
encouraged a multi-disciplinary approach that will raise public awareness of
the social, ethical, and medical standards that apply to such decisions. As
one writer stated,
[t]hese cases arise because of a technology which has outpaced the legal and
ethical framework which must cope with it. In the long run these cases must
be decided on the basis of accepted medical judgment and practice
distinguishing between necessary and unnecessary care and acting on that
distinction. The legal and ethical framework now exists. Privately the medical
practice frequently exists as well. Ultimately, the law only requires
physicians to practice good medicine. In the minds of a growing number of
practitioners, life support apparatus such as respirators are not and can not be
considered as long term warehousing devices for the terminally ill or
vegetative patient but instead are short term therapeutic aids. It is the misuse of
this technology, born solely out of concern for liability rather than good
medicine, which has created an unwelcome place for lawyers, judges, and
legislatures to inject [such issues as consent and right to privacy] into this
unfortunate class of cases. 3'
Medical ethics along the fringes of life involve delicate, emotional,
and complex questions. They are best answered by thoughtful, sensitive,
well-informed people working together to explore all possible alternatives
and arrive at a consensus. This approach is impossible in the
confrontational arena of the courtroom. It can and should occur only in the realm
of health care itself, the private colloquy of doctor and patient, enhanced
by the wise counsel of pastors, ethicists, social workers, and others. As in
any area involving human judgment, it is inevitable that some mistakes
will be made, even by those acting in good faith. That fact, however, does
not justify either medical diffidence or judicial intervention.
'30 Clarke, supra note 111, at 838.
President's Commission for the Study of Ethical Problems in
Medicine and Biomedical and Behavioral Research
Summary of Conclusions
Building on a central conclusion of its report on informed
consent'-that decisions about health care ultimately rest with competent
patients-the Commission in this Report examines the situations in
which a patient's choice to forego life-sustaining therapy may be limited
on moral or legal grounds. In addition to providing clarification of the
issues, the Report suggests appropriate procedures for decisions regarding
both competent and incompetent patients and scrutinizes the role of
various public and private bodies in shaping and regulating the process.
These aims are the only ones that this Commission believes to be
within the scope of its role. The Report does not judge any particular
future case nor provide a guidebook of the morally correct choice for
patients and health care providers who are facing such a decision. Rather,
the Commission intends to illuminate the strengths and weaknesses of
various considerations and various instruments of social policy. Clarifying
the relevant considerations and prohibitions may help decisionmakers,
but it may also force them to confront painful realities more directly. The
Commission hopes that this Report will help improve the process, but
recognizes that an improved process will not necessarily make decisions
The Report addresses a broad range of problems and patient
situations. Serious questions about whether life should be sustained through a
particular treatment usually arise when a patient is suffering from a
known disease likely to prove fatal in the near future rather than in an
unanticipated emergency (where any decisionmaking would necessarily
have to be truncated). Life-sustaining treatment, as used here,
encompasses all health care interventions that have the effect of increasing the
life span of the patient. Although the term includes respirators, kidney
machines, and all the paraphernalia of modern medicine, it also includes
home physical therapy, nursing support for activities of daily living, and
special feeding procedures, provided that one of the effects of the
treatment is to prolong a patient's life.
The issues addressed in this Report are complex and their resolution
depends not only on the context of particular decisions but also on their
relationship to other values and principles. Thus, it is exceptionally
President's Commission for the Study of Ethical Problems in Medicine and Biomedical
and Behavioral Research, MAKING HEALTH CARE DECISIONS, U.S. Government Printing
Office, Washington (1982).
cult to summarize the Commission's conclusions on this subject. The
synopsis provided here should be read in the context of the reasoning,
elaboration, and qualifications provided in the chapters that follow.
(1) The voluntary choice of a competent and informed patient should
determine whether life-sustaining therapy will be undertaken, just as
such choices provide the basis for other decisions about medical
treatment. Health care institutions and professionals should try to enhance
patients' abilities to make decisions on their own behalf and to promote
understanding of the available treatment options.
(2) Health care professionals serve patients best by maintaining a
presumption in favor of sustaining life, while recognizing that competent
patients are entitled to choose to forego any treatments, including those
that sustain life.
(3) As in medical decisionmaking generally, some constraints on
patients' decisions are justified.
" Health care professionals or institutions may decline to provide a
particular option because that choice would violate their conscience
or professional judgment, though in doing so they may not abandon
" Health care institutions may justifiably restrict the availability of
certain options in order to use limited resources more effectively or
to enhance equity in allocating them.
" Society may decide to limit the availability of certain options for
care in order to advance equity or the general welfare, but such
policies should not be applied initially nor especially forcefully to
medical options that could sustain life.
" Information about the existence and justification of any of these
constraints must be available to patients or their surrogates.
(4) Governmental agencies, institutional providers of care, individual
practitioners, and the general public should try to improve the medically
beneficial options that are available to dying patients. Specific attention
should be paid to making respectful, responsive, and competent care
available for people who choose to forego life-sustaining therapy or for
whom no such therapy is available.
(5) Several distinctions are employed by health care professionals
and others in deliberating about whether a choice that leads to an earlier
death would be acceptable or unacceptable in a particular case.
Unfortunately, people often treat these distinctions-betweeri acts and omissions
that cause death, between withholding and withdrawing care, between an
intended death and one that is merely foreseeable, and between ordinary
and extraordinary treatment-as though applying them decided the issue,
which it does not. Although there is a danger that relying on such labels
will take the place of analysis, these distinctions can still be helpful if
attention is directed to the reasoning behind them, such as the degree to
which a patient is benefited or burdened by a treatment.
(6) Achieving medically and morally appropriate decisions does not
require changes in statutes concerning homicide or wrongful death, given
appropriate prosecutorial discretion and judicial interpretation.
(7) Primary responsibility for ensuring that morally justified
processes of decisionmaking are followed lies with physicians. Health care
institutions also have a responsibility to ensure that there are appropriate
procedures to enhance patients' competence, to provide for designation of
surrogates, to guarantee that patients are adequately informed, to
overcome the influence of dominant institutional biases, to provide review of
decisionmaking, and to refer cases to the courts appropriately. The
Commission is not recommending that hospitals and other institutions take
over decisions about patient care; there is no substitute for the
dedication, compassion, and professional judgment of physicians. Nevertheless,
institutions need to develop policies because their decisions have
profound effects on patient outcomes, because society looks to these
institutions to ensure the means necessary to preserve both health and the
value of self-determination, and because they are conveniently situated to
provide efficient, confidential, and rapid supervision and review of
INCOMPETENT PATIENTS GENERALLY
(8) Physicians who make initial assessments of patients' competence
and others who review these assessments should be responsible for
judging whether a particular patient's decisionmaking abilities are sufficient
to meet the demands of the specific decision at hand.
(9) To protect the interests of patients who have insufficient capacity
to make particular decisions and to ensure their well-being and
An appropriate surrogate, ordinarily a family member, should be
named to make decisions for such patients. The decisions of
surrogates should, when possible, attempt to replicate the ones that the
patient would make if capable of doing so. When lack of evidence
about the patient's wishes precludes this, decisions by surrogates
should seek to protect the patient's best interests.' Because such
decisions are not instances of self-choice by the patient, the range of
acceptable decisions by surrogates is sometimes not as broad as it
2 "Decisionmaking guided by the best interest standard requires a surrogate to do what,
from an objective standpoint, appears to promote a patient's good without reference to the
patient's actual or supposed preferences." MAKING HEALTH CARE DECISIONS, supra note 1, at
would be for patients making decisions for themselves.
" The medical staff, along with the trustees and administrators of
health care institutions, should explore and evaluate various formal
and informal administrative arrangements for review and
consultation, such as "ethics committees," particularly for decisions that
have life-or-death consequences for incompetent patients.
* State courts and legislatures should consider making provision for
advance directives through which people designate others to make
health care decisions on their behalf and/or give instructions about
their care. Such advance directives provide a means of preserving
some self-determination for patients who may lose their
decisionmaking capacity. Durable powers of attorney are preferable to
"living wills" since they are more generally applicable and provide a
better vehicle for patients to exercise self-determination, though
experience with both is limited.
" Health care professionals and institutions should adopt clear,
explicit, and publicly available policies regarding how and by whom
decisions are to be made for patients who lack adequate
* Families, health care institutions, and professionals should work
together to make decisions for patients who lack decisionmaking
capacity. Recourse to the courts should be reserved for the occasions
when adjudication is clearly required by state law or when concerned
parties have disagreements that they cannot resolve over matters of
substantial import. Courts and legislatures should be cautious about
requiring judicial review of routine health care decisions for patients
with inadequate decisionmaking capacity.
PATIENTS WITH PERMANENT Loss OF CONSCIOUSNESS
(10) Current understanding of brain functions allows a reliable
diagnosis of permanent loss of consciousness for some patients. Whether or
not life-sustaining treatment is given is of much less importance to such
patients than to others.
(11) The decisions of patients' families should determine what sort of
medical care permanently unconscious patients receive. Other than
requiring appropriate decisionmaking procedures for these patients, the law
does not and should not require any particular therapies to be applied or
continued, with the exception of basic nursing care that is needed to
ensure dignified and respectful treatment of the patient.
(12) Access to costly care for patients who have permanently lost
consciousness may justifiably be restricted on the basis of resource use in
two ways: by a physician or institution that otherwise would have to deny
significantly beneficial care to another specific patient, or by legitimate
mechanisms of policy formulation and application if and only if the
provision of certain kinds of care to these patients were clearly causing
serious inequities in the use of community resources.
SERIOUSLY ILL NEWBORNS
(13) Parents should be the surrogates for a seriously ill newborn
unless they are disqualified by decisionmaking incapacity, an unresolvable
disagreement between them, or their choice of a course of action that is
clearly against the infant's best interests.
(14) Therapies expected to be futile for a seriously ill newborn need
not be provided; parents, health care professionals and institutions, and
reimbursement sources, however, should ensure the infant's comfort.
(15) Within constraints of equity and availability, infants should
receive all therapies that are clearly beneficial to them. For example, an
otherwise healthy Downs Syndrome child whose life is threatened by a
surgically correctable complication should receive the surgery because he
or she would clearly benefit from it.
* The concept of benefit necessarily makes reference to the context of
the infant's present and future treatment, taking into account such
matters as the level of biomedical knowledge and technology and the
availability of services necessary for the child's treatment.
" The dependence of benefit upon context underlines society's special
obligation to provide necessary services for handicapped children
and their families, which rests on the special ethical duties owed to
newborns with undeserved disadvantages and on the general ethical
duty of the community to ensure equitable access for all persons to
an adequate level of health care.'
(16) Decisionmakers should have access to the most accurate and
upto-date information as they consider individual cases.
* Physicians should obtain appropriate consultations and referrals.
* The significance of the diagnoses and the prognoses under each
treatment option must be conveyed to the parents (or other
(17) The medical staff, administrators, and trustees of each
institution that provides care to seriously ill newborns should take the
responsibility for ensuring good decisionmaking practices. Accrediting bodies may
3 "A determination of this [adequate] level will take into account the value of various types
of health care in relation to each other as well as the value of health care in relation to other
important goods for which societal resources are needed." President's Commission for the
Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, SECURING
ACCESS TO HEALTH CARE 4-5 U.S. Government Printing Office, Washington (1983).
want to require that institutions have appropriate policies in this area.
° An institution should have clear and explicit policies that require
prospective or retrospective review of decisions when life-sustaining
treatment for an infant might be foregone or when parents and
providers disagree about the correct decision for an infant. Certain
categories of clearly futile therapies could be explicitly excluded from
" The best interests of an infant should be pursued when those
interests are clear.
* The policies should allow for the exercise of parental discretion
when a child's interests are ambiguous.
* Decisions should be referred to public agencies (including courts) for
review when necessary to determine whether parents should be
disqualified as decisionmakers and, if so, who should decide the course
of treatment that would be in the best interests of the child.
(18) The legal system has various-though limited-roles in ensuring
that seriously ill infants receive the correct care.
" Civil courts are ultimately the appropriate decisionmakers
concerning the disqualification of parents as surrogates and the designation
of surrogates to serve in their stead.
" Special statutes requiring providers to bring such cases to the
attention of civil authorities do not seem warranted, since state laws
already require providers to report cases of child abuse or neglect to
social service agencies; nevertheless, educating providers about their
responsibilities is important.
" Although criminal penalties should be available to punish serious
errors, the ability of the criminal law to ensure good decisionmaking in
individual cases is limited.
" Governmental agencies that reimburse for health care may insist
that institutions have policies and procedures regarding
decisionmaking, but using financial sanctions against institutions to punish
an "incorrect" decision in a particular case is likely to be ineffective
and to lead to excessively detailed regulations that would involve
government reimbursement officials in bedside decisionmaking.
Furthermore, such sanctions could actually penalize other patients and
providers in an unjust way.
(19) A presumption favoring resuscitation of hospitalized patients in
the event of unexpected cardiac arrest is justified.
(20) A competent and informed patient or an incompetent patient's
surrogate is entitled to decide with the attending physician that an order
against resuscitation should be written in the chart. When cardiac arrest
is likely, a patient (or a surrogate) should usually be informed and offered
the chance specifically to decide for or against resuscitation.
(21) Physicians have a duty to assess for each hospitalized patient
whether resuscitation is likely, on balance, to benefit the patient, to fail to
benefit, or to have uncertain effect.
When a patient will not benefit from resuscitation, a decision not to
resuscitate, with the consent of the patient or surrogate, is justified.
When a physician's assessment conflicts with a competent patient's
decision, further discussion and consultation are appropriate;
ultimately the physician must follow the patient's decision or transfer
responsibility for that patient to another physician.
When a physician's assessment conflicts with that of an incompetent
patient's surrogate, further discussion, consultation, review by an
institutional committee, and, if necessary, judicial review should be
(22) To protect the interests of patients and their families, health
care institutions should have explicit policies and procedures governing
orders not to resuscitate, and accrediting bodies should require such
* Such policies should require that orders not to resuscitate be in
written form and that they delineate who has the authority both to write
such orders and to stop a resuscitation effort in progress.
* Federal agencies responsible for the direct provision of patient care
(such as the Veterans Administration, the Public Health Service,
and the Department of Defense) should ensure that their health care
facilities adopt appropriate policies.
331 F. 2d 1000 (D.C. Cir .), cert. denied, 377 U.S. 978 ( 1964 ). 46 331 F. 2d at 1008. The Georgetown College decision was discussed at some length in