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Cruzan and caring for others.

Cruzan and Caring For Others

How can one be a health care professional in Missouri today? What does one say to the family of a very sick elderly person? Does one actually acknowledge that every life-sustaining treatment must be provided unless the person left very specific, formal advance directives declining specific life-extending interventions? Or does the responsible health care provider just continue to serve patients well and ignore the potential adverse force of the law? Must one try so hard to avoid being trapped in the cycle of treatment that long-shot treatments are simply not offered? Health care professionals can hardly be expected to pretend that following the Supreme Court's Cruzan analysis will not hurt patients and families. If they generally simply refuse to follow Cruzan, instead relying on good sense and family wishes, they place themselves at substantial risk.

The Court's Cruzan opinion, to be sure, did some helpful things. Just in case there was ever any doubt, competent persons will apparently be allowed to decide whether to accept life-sustaining health care, probably even if the decisions are made by way of advance directives. Artificial nutrition and hydration will be considered "medical treatment." Nothing important was made to turn on whether a patientis near death or is in persistent vegetative state. Since these gains seem to be largely dependent upon the need of the majority to secure Justice O'Connor's concurrence, however, one shudders to realize that, the wake of Justice Brennan's recent resignation, this troubling opinion is probably the high water mark for federal jurisprudence in this area for a long time to come.

The grand tradition of personal rights guarantees in the federal Constitution ought to have given some protections against the seriously wrongheaded actiosn of states. Although the decision of the Missouri Supreme Court is potentially ambiguous on some points, clearly the intention was to make it virtually impossible for a postponable death to occur early, at least for incompetent persons. The suffering of the patient and family, the costs, the kind of life that can be gained, all are to count for nothing. If life can be prolonged, then it will have to be.

It is hard to say what one should do if confronted with a family member in PVS. Most people queried in public opinion polls think they would want to be allowed to die, though some think even think sort of life should be sustained. The discord yields quickly when the question is changed to that of whether persons would want their families to be authorized to make this decision: Virtually everyone trusts their families to make the decision, and they also would rather have families risk error than have the decisions to be dictated by some other authority. Society runs real risks of damaging the social institution of families by mistrusting them, by ignoring that they will have to live with and make sense of the decisions made, and by abrogating long traditions of family responsibility in favor of state decisionmaking.

The U.S. Supreme Court has tried to remove the Constitution from resolution of questions about decisionmaking for incompetent patients, and returned these issues almost entirely to the states. Undoubtedly, many more people will execute advance directives, some of which will help shap optimal decisionmaking and many of which will be inadequate due to incomplete advance understanding of the clinical situation, incompetence or death of the designated surrogate, and other shortcomings. Most of us, however, will arrive at incompetence in the course of serious illness or advanced years having given no instructions that meet a standard like the "clear and convincing" one the Court has reinterpreted Missouri to be applying in Cruzan. This standard could be a virtually impenetrable barrier in a state that chose to make it so. Since such a standard could never be met by children and lifelong incompetent adults, a state could require all possible life-sustaining treatment for these patients without regard to their suffering or other burdens, or the family's views on the proper course to take.

The challenge is for states to focjus on the complex reality of surrogate decisionmaking, free from the rhetoric of both right to live and right to die advocacy. Most of us assume that those who love us, or even the society we are a part of, will make decisions charitably, compassionately, and, whenever possible, with respect for each incompetent person's history and values.

If we grow ill in Missouri, this scenario is now unlikely, and not because the citizens of Missouri thoughtfully concluded that establishing an exceedingly high priority for life-extension was wise policy, but because of a unique conjunctrion of narrowly political considerations. Professional groups, consumer groups, and ordinary cijtizens need to help states move toward reasonable, individualized standards that acknowledge, as almost all persons do, that mere extensions of mortal existence are not the paramount goal of life. Instead, care plans need to grow from the conscientious collaboration of caregivers and loved ones, searching for the best possible plan of care, often by a bare preponderance of the evidence as to the patient's wishes.

In addition to the obvious need for public and professional education, physicians and other health care providers in Missouri have three potential courses in action. They could massively comply with Cruzan, flooding the courts with petitions, delaying care decisions, visiting all manner of burdens upon present patients in hopes of securing revised rules. They could massively and openly resist compliance, proffering test cases with favorable fact patterns, securing more enlightened practice guidelines from provider and consumer groups, and requiring the state to seek to prosecute the entire system. Finally, they could muddle through, changing behavior only when it is likely otherwise to be noticed, hoping that there are no other cases, and hurting only those few patients and families that are unavoidably entrapped in the new rule.

Obviously, "muddling through" is the course of least resistance, but its consequences may be serious indeed. Well-meaning practitioners would be involved in a kind of dissimulation that would undercut their ability to speak out. Not only will patients and families be ill-served, but the court's views, developed from an analysis of only a very few troubling cases, will never be challenged by the broader perspective of daily decisionmaking. The providers of care in Missouri must quickly take on the challenge of collective action. Providers of care elsewhere must do what they can to support development of good policies in their states as well as to join in the efforts toward reform in Missouri and those other states with similar requirements.

Joanne Lynn is director, Divison for Aging Studies and Services; Jacqueline Glover is assistant professor of Clinical Ethics; George Washington University, Washington, D.C.
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Title Annotation:"Cruzan v. Director, Missouri Department of Health" right to die case
Author:Lynn, Joanne; Glover, Jacqueline
Publication:The Hastings Center Report
Date:Sep 1, 1990
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