Someone Make Up My Mind: The Troubling Right to Die Issues Presented by Incompetent Patients with No Prior Expression of a Treatment Preference

Notre Dame Law Review, May 2014

By Steven M. Richard, Published on 05/06/14

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Someone Make Up My Mind: The Troubling Right to Die Issues Presented by Incompetent Patients with No Prior Expression of a Treatment Preference

Steven M. Richard, Someone Make Up My Mind: The Troubling Right to Die Issues Presented by Incompetent Patients with No Prior Expression of a Treatment Preference Someone Make Up My Mind: The Troubling Right to Die Issues Presented by Incompetent Patients with No Prior Expression of a Treatment Preference Steven M. Richard Recommended Citation - Law Review Article 5 Someone Make Up My Mind: The Troubling Right to Die Issues Presented by Incompetent Patients with No Prior Expression of a Treatment Preference The medical field has continually expanded its ability to sustain a patient in a condition that previously demarcated death.' Courts and legislatures have grappled with the medical, legal, and ethical aspects of when death occurs and what conditions justify the removal or withdrawal 2 of life-sustaining procedures. In an attempt to clarify these questions, the Ad Hoc Committee of the Harvard Medical School3 in 1968 provided criteria to determine brain death;4 this resulted in the adoption of state statutes which used these criteria as a model.5 In re Quinlan6 and its progeny, however, have demonstrated that such definitions of brain death have failed to address the right to die issues presented by nonbrain dead patients in a persistently vegetative coma 7 or in a conscious 8 state. Although many states have passed Living Will Acts, which honor an advance written declaration requesting the termination of life-sustaining ments or breathing; (3) no reflexes; (4) two flat or isoelectric electroencephalograms (EEGs), measured twenty-four hours apart (demonstrating a nonfunctional higher and lower brain). AD Hoc COMMrITEE, supra note 1, at 337-40. For a critique of the Harvard criteria, see D. MEYERS, supra, at 35-36. 5 The Uniform Determination of Death Act also recognizes the potential disparity between modern technology and the common law's reliance on the cessation of spontaneous respiratory and cardiac functions. It states that "[a]n individual who has sustained either (I) 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." UNIF. DETERMINATION OF DEaT ACT § 1, 12 U.L.A. 292-93 (Supp. 1988). In reJobes, 108 N.J. 394, 403, 529 A.2d 434, 438 (quoting Dr. Fred Plum, creator of the term "persistent vegetative state") (citations ommitted). 8 See, e.g., In re Spring, 380 Mass. 629, 405 N.E.2d 115 (1980); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); In re Conroy, 98 N.J. 321,486 A.2d 1209 (1985); In re Grant, 109 Wash. 2d 545, 747 P.2d 445 (1987) (en banc). care,9 most persons fail to provide such a statement of intention. This Note focuses upon the troubling questions presented by patients who have never indicated a preference for or against life-sustaining treatment, due to either life-long incompetence or oversight prior to becoming incompetent. An incompetent patient is unable to formulate and express a treatment choice; 10 as a result, a surrogate decisionmaker will decide whether to terminate life-sustaining care." Medical treatment, however, may not be withheld from an incompetent merely because a surrogate believes that death would be the best alternative for that patient. Courts have recognized that under certain factual circumstances, the withholding or withdrawal of medical treatment may be in the patient's best interests, even though the incompetent had never previously expressed his/her wishes about life-prolonging care. Decisions which grant such incompetents the right to die have vacillated on the answers 9 The National Conference of Commissioners of Uniform State Laws has submitted a proposed uniform act recognizing the enforceability of "living wills" under certain specified situations. UNIF. RIGHTS OF THE TERMINALLY ILL AcT, 9B U.L.A. 611 (1987). Thirty-eight states and the District of Columbia have enacted laws in this area. ALA. CODE §§ 22-8A-1 to -10 (1984); ALASKA STAT. §§ 18.12.010-.100 (1986); ARIZ. REV. STAT. ANN. §§ 36-320 to -3210 (1986); ARK. STAT. ANN. §§ 20-17-201 to -218 (Supp. 1987); CAL. HEALTH & SAFETY CODE §§ 7185-7195 (West Supp. 1988); CoLo. REV. STAT. §§ 15-18-101 to -113 (1987); COLO. REV. STAT. § 12-36-117 (1985); CONN. GEN. STAT. ANN. §§ 19a-570 to -575 (West Supp. 1988); DEL. CODE ANN. tit. 16, §§ 2501-2509 (1983); D.C. CODE ANN. §§ 6-2421 to -2430 (Supp. 1987); FLA. STAT. ANN. §§ 765.01-.15 (1986); GA.CODE ANN. §§ 88-4101 to -4112 (Harrison 1985 and Supp. 1987); HAW. REV. STAT. §§ 327D-1 to D-27 (Supp. 1987); IDAHO CODE §§ 39-4501 to -4508 (1985 and Supp. 1987); ILL. ANN. STAT. ch. 110-1/2, paras. 701-710 (Smith-Hurd Supp. 1986); IND. CODE ANN. §§ 168-11 -1 to -22 (West Supp. 1987); IOWA CODE §§ 144 A.I-A.I I (1985); KAN. STAT. ANN. §§ 65-28, 101-109 (1986); LA. REV. STAT. ANN. §§ 40:1299.58.1-.10 (West Supp. 1987 (...truncated)


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Steven M. Richard. Someone Make Up My Mind: The Troubling Right to Die Issues Presented by Incompetent Patients with No Prior Expression of a Treatment Preference, Notre Dame Law Review, 2014, Volume 64, Issue 3,