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For them rather than by them.

When we do not know what forms of life support patients want and for how long, should we presume that they want all available means to keep them alive? If not, under what circumstances should we presume the opposite?[1] And to the extent that using (or not using) certain methods of life support are permissible but not obligatory, who ought to decide when to treat and when not to?

With the dispersion of high-technology medicine around the world, the tension among autonomy, beneficence, and sanctity of life that occurs every day in hospitals spills over ever more frequently into courts and legislatures as well. In the United States, lawmakers have shown great enthusiasm over the past decade for advance directives; forty-seven states now have legislation authorizing instructional directives, such as living wills, and forty-eight have laws on proxy directives, such as durable powers of attorney for health care. Yet relatively little is known about directives' actual efficacy or about how to ensure that decisions made pursuant to them best serve the interests or the wishes of the people who execute them.

Two recent events--one in New Zealand and the other in Oregon--mark a new direction in this area. Auckland Area Health Board v. Attorney General[2] involved a fifty-nine-year-old man (called "Mr. L" in court documents) who suffered a severe case of Guillain-Barre syndrome, a progressive, irreversible neurological condition that left him motionless and unable to communicate by any means. Besides total muscle degeneration, his denervation was so severe that even his auditory nerves did not work and his pupils were fixed and dilated, though his doctors were unsure that his visual pathways did not function. Because he lacked means to communicate, it was not known whether his brain could process information. In light of the sensory deprivation, his brain was at most "in a drowsy semi-working state."

With the ventilatory support he received in the Auckland Hospital intensive care unit, Mr. L could survive indefinitely; without it, his breathing and heartbeat would cease and he would die, quickly and painlessly according to his physicians. They concluded that his ventilator should be withdrawn, and Mrs. L agreed. The physicians were unwilling to act, however, for fear that turning off Mr. L's ventilator would expose them to liability under the Crimes Act 1961. Section 151 imposes a duty on those, such as physicians, who have dependent persons in their charge, to provide them with "the necessaries of life." Breach of this duty would make any resulting death a culpable killing under other sections of the act.

Unable to obtain assurances from the attorney general that they would not be prosecuted, the physicians sought a declaration from the New Zealand High Court that what they wished to do was not unlawful. Judge Thomas's decision in their favor is of interest for several reasons--in addition to the novelty of lifting our eyes beyond America's shores to see how other nations are grappling with problems that have troubled our courts for nearly twenty years.

Crimes and Doctors

The opinion's first interesting feature is its reminder that the criminal law provides "a poor way to design an ethical and moral code for doctors," as a California appellate court observed decade ago.[3] Just as the niceties of the criminal law provided a backdrop for the early U.S. treatment termination cases seeking injunctions and declaratory judgments (such as Quinlan), so too physicians' anxieties over criminal liability led the Auckland court to analyze the problem in terms of issues such as causation, duty, and lawful excuse.

It has sometimes been argued that forgoing life-sustaining treatment merely allows an underlying lethal condition to bring about death; further, a distinction is sometimes drawn between doing something to cause a result and failing to take steps to prevent it. Indeed, both of these avenues of analysis were employed by the House of Lords earlier this year in the landmark case Airedale N.H.S. v. Blond, in which their Lordships approved allowing physicians to cease artificial nutrition and hydration of a patient in a persistent vegetative state.[4] Judge Thomas wisely declined to adopt the view that the acceptability of withdrawing a life-sustaining ventilator in a particular case means that this act is not a cause of death.

The judge's attempt to decide whether a duty existed was less successful. Rather than asking which circumstances might overcome a physician's duty to sustain his or her patient, the judge focused on defining the "necessaries of life." Artificial respiration is a "necessary," according to the court, when "it is required to prevent, cure or alleviate a disease that endangers the life or health of the patient" (p. 249). When the ventilator serves "no other purpose than deferring certain death," however, the patient has "passed the point of |life' and the obligation contemplated by [the criminal law] is otiose."

The problem with this formulation is that it does not handle the very example--withdrawing life-sustaining respiratory support from a polio patient--that the judge invoked to show that one could cause death without necessarily being criminally culpable. The purpose of the ventilator there is also to prevent death and not to cure, so the judge's implicit view that the polio patient still has a "life" derives not from the criminal law's protection of life's sanctity but from the judge's evaluation (based upon clinical or personal factors) of the relative quality of life of the polio patient compared to Mr. L.

Judicial Paternalism?

Having somewhat muddled the ideas of causation and duty, the judge rested his conclusion on the related concept of "lawful excuse." While continued treatment of a patient like Mr. L might be lawful, the court held it was not criminal to discontinue treatment when doing so accords with "good medical practice." The factors entering into good practice that Judge Thomas recited--a bona fide intent to serve the patient's best interests, adherence to prevailing medical practices and procedures, consultation with appropriate specialists, approval by an ethics committee, concurrence of the family or guardian--are fine as far as they go.

What is remarkable by its absence is any mention of the role of the patient's wishes. Focusing solely on the limits of physicians' duty to treat, the court apparently did not even require any evidence on whether Mr. L had ever expressed any views relevant to the issue. As Rosemary Tobin recently described the court's ruling, "any decision as to Mr. L's fate, and the fate of others like him, was better made for him rather than by him."[5]

Perhaps Judge Thomas thought Mr. L's wishes were unimportant because of his particularly bleak situation, from which one might conclude that Mr. L had no real interests and thus the only interests that mattered were those of his immediate family. Alternatively, following Rebecca Dresser and other critics of advance directives,[6] it might be argued that Mr. L was no longer the same person as before, so that no special weight need be accorded to the wishes or preferences of the competent person who once occupied the body that now lies in the Auckland Hospital intensive care unit.

Yet neither rationale was advanced in this case, nor did the court consider whether Mr. L's neurological state met the standard of dementia upon which Dresser's argument rests. The guidelines established for withdrawing life support simply endorse "medical treatment in accordance with the doctor's best judgment as to what is in the best interests of his or her patient" (p. 253).

The Oregon Shift

In contrast to the New Zealand decision, the "Power of Attorney-Health Care Decisions" Act adopted in Oregon in September 1993 seems an archetypical product of the U.S. in providing many guarantees that patients' wishes will prevail even after they lose decisionmaking capacity.[7] Yet the statute also marks a shift in the presumption about what the average person would want by way of life-extending interventions: regardless of instructions, interventions may be forgone when a patient is near death or has lost the ability to communicate because of unconsciousness or advanced senility. Moreover, the Oregon law not only formalizes the traditional practice of turning to relatives or a close friend (in a hierarchy set forth in the statute) to forgo life support when such patients do not have an advance directive, but also, in the absence of such family or friend, gives decisionmaking authority to the attending physician (Sec. 127.63). The wide latitude of incompetent patients' representatives and physicians to make decisions on their behalf is described only obliquely, however.

The amended Sec. 127.540 begins by appearing to limit the authority of those who act for patients who cannot decide for themselves about a number of medical procedures (such as civil commitment, sterilization, or abortion). Concerning withholding or withdrawing a life-sustaining means, however, Sec. 127.540(6) creates exceptions when the representative has been given explicit authority or the patient has been found (by two physicians) to be permanently unconscious, to have a terminal condition or one in which treatment "would not benefit the principal's medical condition" and would cause severe pain, or to suffer from advanced dementia.[8]

Likewise, Sec. 127.580 begins with the presumption that all incompetent people would want nutrition and hydration when they become unable to make decisions for themselves. But it then allows that presumption to be overcome either when the patient specifically directed that nutrition and hydration be withheld or, in the absence of instruction, under certain medical circumstances--which again include permanent unconsciousness, terminal condition, or advanced senility.

In sum, the Oregon legislature has ended up very close to the New Zealand court, despite their surface differences. It is true, of course, that the advance directive provisions of the Oregon law give people means for having their wishes about health care effectuated even after they become incompetent, whereas the New Zealand court shows no interest in the patient's wishes. But in cases comparable to Mr. L's dire prognosis, the Oregon legislature apparently concluded that any interest a patient might have is not strong enough to force others to provide life support. And in the process, Oregon--like the New Zealand court--seems to have left physicians with a very wide range of professional discretion about which lives are worth sustaining.


[1.] See A.M. Capron, "Substituting Our Judgment," Hastings Center Report 22, no. 2 (1992): 58-59. [2.] [1993] 1 NZLR 235. [3.] Barber v. Superior Court, 195 Cal.Rptr. 484, 486 (C.A. 1983). [4.] [1993] 2 W.L.R. 316 (H. L.). [5.] Rosemary Tobin, "The Incompetent Patient's Right to Die: Time for Legislation Allowing Advance Directives?" NZ Recent Law Review (1993): 103-21, at 107. [6.] Rebecca Dresser, "Life, Death and Incompetent Patients: Conceptual Infirmities and Hidden Values in the Law," Arizona Law Review 28 (1986): 373-405. [7.] S.B. 286, Ore. Sess. L. ch. 767 (1993), amending ORS 127.005 to 127.640. [8.] Oregon Rev. Stats. 127.540 (6) (b) (D).

Alexander Morgan Capron is Henry W. Bruce Professor of Law and Medicine, University of Southern California, and director of the Pacific Center for Health Policy and Ethics, Los Angeles, Calif.
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Title Annotation:ethical aspects of life support
Author:Capron, Alexander Morgan
Publication:The Hastings Center Report
Date:Nov 1, 1993
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