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
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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)