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Deciding for Others: The Ethics of Surrogate Decision Making.

Cynthia B. Cohen is a philosopher and lawyer who is an adjunct associate of The Hastings Center.

Deciding for Others: The Ethics of Surrogate Decision Making. By Allen E. Buchanan and Dan W Brock. New York: Cambridge University Press, 1990. 368 pp. $49-50; $16.95 paper.

Aristotle, in the Nichomachean Ethics, declared that the primary human good, happiness-or activity of the soul in accordance with reasoned principle-can only be achieved in "a complete life. For one swallow does not make a summer, nor does one day; and so too one day, or a short time, does not make a man blessed and happy." The meaning of a complete life in his day was fairly unproblematic. It had to do with reaching the natural time of death within the circle of the family after having achieved one's major goals. Today its meaning is less clear. As our passion to conquer death renders the notion of a "natural" time of death obsolete, what makes a complete life has become a matter of decision, rather than discovery. And whether a life that can no longer achieve the primary human good due to severe illness should be considered complete, as "blessed and happy" as it will ever be, is being negotiated for individuals within a circle dominated by strangers.

When Americans are polled, we commonly identify staying alive and healthy as the primary human good; we place this above love, work, money, and even activity of the soul in accordance with reasoned principle. A complete life, for us, is becoming a medicalized life. Yet, at some level, we realize that the primary good involves more than survival and health. We know that we cannot fend off disease and debilitation forever--that our lives will end as night-duty nurses listen to our ebbing breath. Some of us pierce through the veil of self-deception to acknowledge this openly and convey our vision of life and death to those close to us. Others maintain a defensive silence. They confuse happiness with a medicalized immortality, and risk attaining a complete life in the arms of well-intentioned strangers, cut adrift from their deepest values, their moral community, and their very souls.

Allen E. Buchanan and Dan W. Brock, in Deciding for Others, and Robert Weir, in Abating Treatment with Critically Ill Patients, examine several difficulties we face in the medical context as we search for the complete life. Buchanan and Brock focus on issues of decisionmaking for those not competent to choose for themselves, and offer an ethical framework for developing and evaluating standards in this comparatively neglected area. Weir provides a review and appraisal of many medical, legal, and ethical voices prominent in the debate about decisions to abate treatment; Buchanan and Brock's special contribution is to bring systematic moral reasoning and consideration of social and institutional practices to bear on a spectrum of questions related to incompetence. The result is a subtle, selective, and philosophically sophisticated work. Weir's forte is to present a wealth of clearly organized observations and analyses of issues related to treatment abatement, bringing in evolving clinical settings, recent medical technologies, relevant legal decisions, and conflicting ethical positions. His work is rich and comprehensive. Neither book is easy going. Both, however, provide invaluable resources for health care professionals, patients, hospital administrators, judges, malpractice and defense lawyers, policy makers, risk managers, social workers, clergy, ethicists-indeed, anyone concerned about the meaning of a complete life.

In the wake of the Supreme Court's Cruzan decision, those concerned about ending life within a circle dominated by strangers will find Buchanan and Brock's view of special importance. They argue that the family should decide for the incompetent patient, as the context in which medical treatment decisions are made-an open institutional environment with caregivers attuned to professional norms and concerned about legal liability-provides significant protection against the possibility of self-interested decisionmaking by families that so troubled the Supreme Court. Moreover, institutional and legal structures are available to safeguard against possible abuse or neglect, serious conflicts of interest, or families of questionable competence.

Buchanan and Brock propose that health care institutions add to current protections for incompetent patients certain procedures for challenging decisions of surrogates in those rare instances when this appears appropriate. The decisions of surrogates should be challenged when they would likely result in serious harm to the patient or impose severe burdens on the surrogates. The priority these authors give to families as surrogates is tempered by elaborate protections against mistreatment.

A second crucial issue with which Buchanan and Brock grapple is how to evaluate patient competence to make treatment decisions. They offer a distinctive and influential view of competence and its assessment that has appeared in the President's Commission report, Deciding to Forego Life-Sustaining Treatment, and The Hastings Center Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying (both of which Brock assisted in developing). It is also endorsed, in principle, by Weir.

Buchanan and Brock suggest that competence is not a global property, but is relative to a particular decisionmaking task at a particular time under specified conditions. They reject a fixed minimal capacity" view according to which a person is competent if he or she possesses relevant decision-making capacities at a specified level. This view, they believe, mistakenly requires that incompetence be found before interference in a patient's decision to protect his or her good can be justified. Instead, they maintain that a patient's competence itself can be challenged on paternalistic grounds to promote that patient's well-being as he or she conceives of this. Thus, competence assessment requires balancing the values of self-determination and well-being. It is central to Brock and Buchanan's view that the standard of competence must be adjusted in light of the harms or benefits to the patient that would result from acting in accord with his or her decision. Consent to a low-risk life-saving procedure by an otherwise healthy patient should require only a minimal level of competence, but refusal of that same procedure by such an individual should require the highest level of competence.

Although this approach is intriguing, it endangers the usual presumption of competence. Seemingly competent patients may have to convince their caregivers not only that their cognitive capacities are not defective, but that their choice offers a net balance as good as or better than all possible alternatives if they are to avoid being termed incompetent. This is a heavy burden of proof for most patients to produce. Since competence is decision-relative on this approach, the need for patients to succeed in convincing their caregivers that they have successfully made a complicated consequentialist analysis will lurk in the background of every physician-patient interchange.

Any standard for competence can yield a mistaken assessment. Rather than risk the mistake of allowing an incompetent patient to make a seemingly harmful choice, or the mistake of overruling a competent patient's seemingly harmful choice, Buchanan and Brock risk mistakenly identifying the competent patient as incompetent and then overruling his or her seemingly harmful choice. This compounds the second possible mistake by branding competent patients with a label likely to work to their detriment in their future treatment choices.

Several other important issues related to care of incompetent patients are addressed by Buchanan and Brock. They argue against limiting allocation of medical resources to incompetent patients on the basis of cost; they favor a rebuttable presumption of competence for children in the range of fifteen to seventeen years. They critically analyze the role of parents in decisionmaking for newborns with serious medical difficulties, the use of DNR orders for the elderly, and involuntary commitment of the mentally ill. Moreover, they propose well-developed and supported policies. Their goal is to offer reasoned conclusions that will shape concrete progress in the care of the incompetent so that these vulnerable individuals can round off a complete life in ways consonant with their deepest values. In this, Buchanan and Brock are largely successful.

The amazing growth of our ability to prolong lives over the past two decades, it is now well recognized, has led us to medicalize dying. Weir's panoramic review of trends related to the abatement of treatment (by which he means decisions not to initiate, to reduce, or to end treatment) reveals that we have begun to question our unthinking tendency to fall back on medical technology and are moving to demedicalize dying. We are starting to abate treatment for patients who are not maintained by exotic mechanical behemoths, but by simpler means that have an equivalent power to prolong life, such as tube feedings or antibiotics. These patients are not necessarily terminally ill in the strictest possible sense, for they will not die imminently, but are on a downhill course that the techniques of modern medicine can only delay, not reverse. We are beginning to come to terms with our life-sustaining powers for this broader range of dying patients.

Weir heroically tries to make some universalizable sense out of the legal judgments in a variety of treatment abatement cases involving competent patients-holdings which arc deliberately and proudly viewed by some of their authors as not universalizable. Many of the features of the right to refuse treatment that he identifies in twelve such cases, however, are difficult to discern in them. He finds, for instance, that courts have not conditioned the exercise of the right to refuse treatment on the motives of patients or on the presence or absence of terminal illness. Yet the motives of Elizabeth Bouvia are essential to an explanation of the conflicting decisions about forced feeding in Bouvia I and Bouvia II. The decision of the court in Myers to order the provision of life-sustaining treatment was highly dependent on the fact that the patient was not terminally ill. Exceptions to Weir's generalizations in themselves appear to constitute the only "rule" to be found in these cases.

Legal holdings in this area are suffused by policy concerns and, despite Weir's thoughtful attempts, do not provide many generalizable conclusions. Still, his account of decisions involving both competent and incompetent patients reveals that long-standing legal concepts are being revised and new ones created to accommodate our attempts to demedicalize the process of dying. To aid this process, Weir offers a classification scheme for sorting out important variables in cases involving incompetent patients that takes account of such factors as the grounds for incapacity, type of incapacity, whether the patient expressed views about treatment abatement previously, and the availability of a surrogate. Many of his suggestions could lead to greater clarity and consistency in decisions for incompetent patients.

Do these cases, in effect, sanction suicide or the intentional killing of the critically ill? Weir responds with a complicated analysis. He provides a two-page chart in which he distinguishes characteristic features of three forms of treatment abatement and three kinds of euthanasia. He emerges with what he terms a "compromise position." Although treatment abatement at the request of patients or their surrogates is conceptually distinguishable from voluntary euthanasia, it is not necessarily morally distinguishable. This form of treatment abatement can be morally wrong, and voluntary euthanasia can be morally right. However, such treatment abatement, in practice, is usually morally fight when viewed in terms of the agent's intention and the cause of death.

Weir's "compromise position" is Wtimately not persuasive. In part, this is because his arguments are complex and detailed-at times, too detailed. He offers several theses and distinctions that promise to advance our understanding of conceptual and moral differences between allowing to die and euthanasia, but these are buried in a surfeit of qualifications. A more complete exposition of the major lines of his position would alleviate this difficulty. The need for greater selectivity and fuller explanation appears in other sections of the book as well. Still, Weir exhibits an unusual grasp of how institutional settings, professional traditions, and political interest groups affect putatively objective decisions in a work that provides a vast array of useful material and analyses.

Our new-found power to bend nature to our will is imperceptibly changing the shape of Aristotle's ancient questions, and rendering them more urgent. In our restless search for the primary human good, we convert the self-knowledge yielded by introspection into the power of biofeedback, the asceticism of religion into the regimen of the intensive care unit, and the satisfaction of hunger and thirst by the intake of food into the bodily insertion of liquids and nutrients through clear plastic tubes. Yet we emerge with no common vision of that, good. The authors of these two books accept this babble of conflicting opinions and offer remarkably similar ways of honoring it. They defend the claim of each of us, in virtue of our common identity as human beings, to be treated in ways consonant with our deepest values. Yet they recognize that we are more than bearers of rights who should receive gestures that confer respect. We are also vulnerable creatures whose well-being depends on acts of concern and assistance from others. In the end, they agree, whether the spark that is our life is complete, as "blessed and happy" as it will ever be, should be decided by us or by those who care about us and know where our core of commitment lies.
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Author:Cohen, Cynthia B.
Publication:The Hastings Center Report
Article Type:Book Review
Date:Jan 1, 1991
Words:2203
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