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State interests in terminating medical treatment.

State Interests in Terminating Medical Treatment

It is now well established in American law that patients have a right to refuse medical treatment, even when the treatment is life-sustaining and even after the patient becomes incompetent.(1) This right to refuse treatment is typically identified by courts as an extension of both the common law right of control over one's own body and the constitutional right of privacy.(2)

That American courts have identified and protected such a right was highly predictable; it is commonplace in American law for courts to champion individual rights. And it would be hard to take seriously a view of medicine wherein patients are mere subjects without any effective control over what becomes of them. What was not so predictable--and perhaps what should not be without controversy--is the growing weight of legal authority, that this right may be absolute. The right to refuse treatment is now understood to mean that (with one exception) there are no legitimate state interests that could in any way circumscribe its exercise.(3)

Cases involving termination of medical treatment usually follow a simple line of reasoning. The court will first review the common law and constitutional bases for the right to refuse treatment, and then establish that it is--or in the case of the incompetent, could be said to be--the patient's wishes to have the treatment stopped. Next the court will perfunctorily consider whether there are any state interests that do or could prohibit the exercise of this right in this case.(4) And finally, except where there is a conflicting third-party interest--usually the interests of a dependent child(5)--the court will rule in favor of the termination of treatment.

The courts address two closely related, and thus easily confused, issues by this reasoning. The first is that of authority: who is the principal decisionmaker in decisions to terminate treatment? The second is whether this authority knows any limits. Where countervailing state interests could conceivably affect the right the courts now argue that (with the one exception) this authority is unlimited. While it may be without dispute that patients (or their surrogates) should have the legal authority of the principal decisionmaker, a question remains whether there are or should be limits to authority rightly invested in the patient.

An Absolute Right to Refuse Medical


We will focus on the two state interests originally identified by the New Jersey Supreme Court in the landmark case of Karen Quinlan as possible counterweights to the authority contained in the right to refuse treatment. In Quinlan the court identifies "the preservation and sanctity of human life and defense of the right of the physician to administer medical treatment according to his best judgement" as considerations that weigh against a right to refuse treatment.(6)

Having mentioned this interest in human life and this interest in (what comes to be known as) the ethical integrity of medicine, the Quinlan court suggests the conditions under which these interests will limit the exercise of the right to refuse treatment. The court argues that both the condition of the patient and the character of the treatment are material to a determination of whether the patient can exercise his or her right to refuse treatment. Thus, a terminally ill patient facing a highly intrusive treatment is at that point where these state interests give way to the right to refuse treatment (pp. 663-65). In its reasoning, however, critical questions are never answered. For example, there is no extensive explanation of the exact values or goods protected under either the interest in preserving life or that in preserving the ethical integrity of medicine. There is no explanation of how, exactly, these goods could conflict with such a thing as a right to refuse treatment; that is, no explanation of how these goods function as counterweights. Finally, there is no explanation of exactly why the particular condition of the patient or the character of the medical treatment matter to these state interests in countervailing this right.

Quinlan's progeny follow suit in avoiding any serious analysis of these interests. In fact, the case law contains brief accounts of each interest that, upon closer inspection, turn out to be fundamentally incoherent; that is, the interest is described in a way that contradicts its function as a possible counterweight to individual rights.

Conflating Autonomy and Life

In examining the state interest in preserving life, courts typically see only the value of autonomy or some form of individual liberty. The association here is between human life and that which makes human life a valuable or welcomed experience for those who have it. Because the courts view autonomy or individual liberty as satisfying this condition of enjoyment, they are inclined to see their role under this interest as a protection of individual rights, most important the rights of the individual patient.

Courts may be quite direct and explicit in associating life with individual liberty. For example, the Saikewicz court states explicitly that the value of life is in "free choice and self-determination" (p. 426). There are, however, various indirect and subtle ways in which this association is made. A court could argue that the only possible conflict between the state interest in life and the individual's right to refuse treatment occurs when the life at risk is not the patient's own.(7) The implication of this view is that the patient's own life has no value to be protected over and above the value of the patient's liberty or free choice. There is also the suggestion here that the state interest in life will always be a third-party interest relative to the patient's right to refuse treatment. One court even goes about "analyzing" this state interest by addressing only the religious affiliation of the hospital.(8)

A court could also indirectly associate this interest with autonomy or individual liberty by arguing that the state has an interest in preserving only those lives that the individuals themselves believe are worth preserving.(9) The court thus avoids making any "quality of life" judgment, but in so doing emasculates the state interest. The only possible circumstances in which the state interest--so understood--could countervail the exercise of a right to refuse treatment would be when the patient explicitly declares that her life is worth living but that she wishes that life-sustaining treatment be terminated.

In short, the courts have not conducted a careful analysis of the state interest in preserving life to support the conclusion that this interest and the good it represents are not sufficiently weighty to limit the exercise of the right to refuse treatment. Rather, the courts have simply defined away the interest. The right is absolute because the only interest or protected good that the courts recognize is itself autonomy. To understand this more fully, we might imagine a court arguing that the constitutionally guaranteed right of free speech is not absolute, but rather limited by a state interest in public order. When asked to explain, however, what the "order" is that limits this right, the court responds by saying "that condition wherein everyone says whatever they like." To simply define away any possible conflict is, of course, a cheap substitute for the more difficult task facing courts in these cases: balancing that whole range of goods needed for a healthy society, which goods are supposedly represented in both the rights of individuals and the countervailing interests of political states.

Private and Professional Integrity

The account of the state interest in preserving the ethical integrity of medicine follows a similar outline. Where we find some mention of this interest and its bearing on the right to refuse treatment, the courts are likely to associate the integrity of medicine with whatever practice medical professionals are willing at the moment to accommodate. Permitting the termination of any manner of treatment under all circumstances is no threat to the integrity of the medical profession if medicine--or some part of it--is willing to accommodate the courts' directives. Courts typically cite either surveys of physicians' attitudes or medical protocols and guidelines on terminating treatment.(10) Even more to the point is the claim that the integrity of medicine is preserved so long as no health care professional is forced to act contrary to his or her private conscience.(11)

In this view, the courts confuse the integrity of individuals with the integrity of a profession. Moreover, when the courts argue that the integrity of medicine as such is preserved so long as no one's conscience is violated, they simply ignore the possibility that individual members of a profession can themselves undermine its integrity. Medicine's ethical integrity is not necessarily guaranteed simply because a practitioner is willing to carry out the courts' directives regarding the forgoing of treatment. Hitler's deathcamp doctors are, of course, the most obvious example. The consciences of individual members of a profession are not always, as that graphic lesson shows, the most reliable indicators of when the profession's ethical integrity has been compromised.

The courts also tend to ignore the distinction between refusing the care of medicine per se and refusing particular treatments while remaining in the care of medicine.(12) It may be undeniable that an individual should not be forced against her will to submit to the care of medicine. Imagine a patient in her doctor's office refusing to submit to the prescribed treatment regimen for her illness, having been fully informed of the risks involved. The patient walks out of the office, refusing the care of medicine and intent on caring for herself. This is not the same situation as someone in a hospital who refuses some particular treatment without any intention of forgoing the care of medicine. The ethical integrity of medicine might not be affected by an individual's unqualified right to refuse the care of medicine altogether. But it does not follow that the profession's integrity can permit an unqualified right of patients to refuse whatever particular treatment they wish while remaining in the care of medicine.

Finally, and perhaps most importantly, the courts' approach to dealing with the ethical integrity of medicine displays a naivete about the law's effect on the practice of medicine. The result of the constant concern for the legal ramifications of one's actions in medicine is that the profession will alter its practices in the belief that this is what the law expects of it. If asked why forgoing treatment in various types of cases (or all cases) is acceptable, it is likely that most physicians would refer to recent court rulings rather than the Hippocratic Oath.

Besides raising fears of litigation, the effects of court opinions on medicine can also be subtle and indirect. As a principal forum for public debate on medical ethical issues, the courts can promote or largely determine how these issues are framed and then resolved. It is no accident that medical protocols now prescribe a "medical ethics" wherein patient autonomy is the ruling, if not exclusive value, to be preserved in decisions to forgo treatment.(13) This is after all the value judgment the courts themselves promote as appropriate for our kind of (legal) society.

The Sources of the Courts' Error

What could explain the courts' failure to give these two state interests a proper hearing in the termination of medical treatment? Carl Schneider's insightful survey of the disappearance of moral discourse in family law may help answer this question.(14)

Schneider identifies four "causes" for this development in family law. They are "the legal tradition of noninterference in the family, the ideology of liberal individualism, society's changing moral views, and the rise of psychologic man." I would like to comment briefly on two of these in relation to the termination of medical treatment. Schneider associates liberal individualism with John Stuart Mill's "harm principle": that the only good reason to restrict the liberty of individuals is to prevent harm to others. He writes that:

[o]ne explanation of the law's fondness for Mill, and a related cause of the trend toward diminished moral discourse in family law, is the law's increasingly pluralistic view of American society. Pluralism has strengthened the trend by inhibiting society's impulse to impose its moral principles on discrete groups within society and by nurturing a relativist view of moral principles.

When courts assume that all substantive ethical goods--and their attending principles--are relative to different groups within the society, but none respected throughout the society, it becomes understandable why the idea of harm to others becomes the single hook upon which legal restrictions are hung. In the case of terminating medical treatment, this makes third-party legal interests the only concern courts are able to enforce. To enforce an interest in preserving life could involve respecting a good other than autonomy or individual liberty. Yet this could be a good recognized by some in society, but not others. In turn, to avoid enforcing the values of some on others in the practice of medicine, the integrity of the profession is best understood in terms of the private consciences of its members.

"The psychologic man" is Schneider's designation for a new model of human happiness or true human flourishing. The older ideal of happiness was organized around various accomplishments that went well beyond the individual's psyche; for example, the fulfillment of all sorts of social duties and the development of all sorts of moral virtues. Now, according to Schneider, the model of happiness focuses exclusively on the psyche. Happiness--human flourishing--is feeling a certain contentment about oneself, regardless of one's moral character or relations with others. Therapy replaces moral education, and the individual in the privacy of his or her own psyche becomes the sole arbiter of determining what is morally right or wrong. In treatment termination cases this psychologic view of happiness establishes two requirements for decision-making. The first is that the only relevant ethical consideration in such decisions is how the patient feels about the treatment and its possible termination. The second is that since this information is by its very nature private only the individual patient is competent to judge the moral appropriateness of terminating treatment. Of course, when the patient is incompetent, the surrogate must decide not on the basis of objective knowledge but on the basis of the putative wishes or feelings of the patient.(15) Clearly, enforcing a state interest, like the integrity of medicine, against the wishes of a patient would be an assault on the patient's psychological contentment. And if one equates this contentment with the individual's moral well-being, then there are no compelling ethical reasons for doing so. Still it is not clear why a court's scrupulous concern for the patient's psychological contentment is not itself a form of paternalism. It is, however, understandable for a court to avoid what it perceives to be paternalism when it assumes it shares no, or very few, values with those affected by its decisions.

While Schneider's causes go a long way in explaining the legal development of an absolute right to refuse medical treatment, they do not, of course, justify it. The light these causes shed on termination of treatment cases may actually justify withholding the kind of respect that is properly shown to courts of law and their considered opinions. In deciding such cases, American courts often assume the posture of an authority issuing moral pronouncements that are both patently obvious and universally true. This is especially so in regards to their declarations on autonomy and the only kind of considerations appropriate to make in these decisions. If Schneider is right, American courts are not the bearers of any profound and enduring moral insight into these matters. They are rather the uncritical children of recent cultural developments.

The State Interest in Preserving Life

As we have seen, the difficulty the courts have experienced in providing an adequate account of these two state interest arises in part from an apparent misunderstanding of what it means for something to function as a counterweight to individual rights. Any adequate account of these interests must begin with some reflection on the very function of a countervailing state interest to individual rights.

A state interest would have to satisfy at least four conditions to function as a counterweight to individual rights, and specifically to a right to refuse treatment: (1) The interest must protect a value other than autonomy or some manner of individual liberty; (2) it must be materially relevant to the specific right in question (in this case, materially relevant to the refusal of medical treatment), and not just a vague or theoretically possible limit to individual liberty; (3) it must be such that it could limit the right without destroying it; that is, it is an interest that would be threatened or compromised only in some instances of treatment refusal; and (4) it must be a concern appropriate for a political state to act upon in governing its citizens.

The first condition is set by the fact that our two state interests are not themselves concerns for third-party legal interests and rights. The rights of a third party (the right of a dependent child is the typical case) can and do limit the right of a patient to refuse medical treatment. Our question is whether the preservation of life and the ethical integrity of medicine can (or should) do the same. The second condition establishes the need for a real possibility of conflict between the interest and the right. There is no point to introducing a state interest in the context of a specific exercise of an individual right if there is no possibility of conflict between such an interest and the right. The third condition simply follows from the interest's function as a limit but not a complete bar to a right to refuse treatment. It also rests on the jurisprudential principle that there must be some limit to individual rights in any orderly, law-abiding society. The fourth condition reflects a court's possible enforcement of the interest. There may be all sorts of good reasons why individuals should restrain themselves from exercising a right to refuse treatment, but we are concerned with a reason for restraint sufficient to allow a court to exercise its political power over individuals.

Like all state interests, the interest in preserving life aims to preserve something of value, in this case, human life. But human life as valuable in what sense? Our answer here must satisfy the first condition: the good protected cannot simply be some manner of autonomy. Accordingly, the interest serves as a recognition of a value to human life that exists over and above the value to life of such things as rights, liberty, free choice, etc. One way to designate this good would be to say that human life is intrinsically valuable. This is implied in the standard identification of the state interest as an interest in life itself and not some other valuable condition of human existence. This also follows from the function of this interest as a possible counterbalance to autonomy or individual liberty. What is valuable is life itself and not just individual liberty, or for that matter health or peace of mind. Thus, in certain circumstances, the interest in life may limit the rights of the very person whose life is so valued.

The example of an incompetent patient illustrates this idea of life as inherently valuable. Imagine that the patient has never expressed her wishes concerning medical treatment. There is still a good--the patient's life itself--that must be respected, and in which the state has an interest. To say that an incompetent patient's (or any patient's) life is intrinsically valuable does not mean that we are never warranted in forgoing treatment that may, in some measure, sustain that life. It does mean that life itself, regardless of the condition in which we find it, always deserves consideration in any decision to forgo treatment.

The interest in preserving life, as an expression of the intrinsic value of human life, is a materially relevant counterweight to the right to refuse treatment. If life is good even in the absence of autonomy, then the value of life cannot be entirely a function of the individual's own will. This means that there is value in any human life even if the individual refuses to recognize it or "wills" otherwise. For a competent patient to declare her life valueless does not make it so. In such a case the patient's life is obviously missing that added value that comes with contentment, or self-satisfaction, or merely the absence of pain and suffering. There also may be types of goodness in life that exist only with the individual's recognition, such as the goods of self-esteem, psychological contentment, and the whole range of moral virtues. However, a life that lacks these goods is not without value. In this respect, situations can arise in which the state interest in preserving life conflicts with a right to refuse treatment. It is possible for a patient to refuse treatment precisely because she ignores or denies the intrinsic value of her own life. In such circumstances, what the state is obligated to protect under this interest is directly opposed to the patient's wishes.

But can this interest in the intrinsic value of human life abridge the right to refuse treatment in some instances without extinguishing it in all? To satisfy the third condition for countervailing state interests, this interest must mean something other than an at-all-costs extension of human life. The (mere) life of the patient is not the only good that needs respect. There is also the avoidance or minimizing of pain and suffering, and of course the autonomy of the patient.(16) While the good of life is not inherently at odds with either the good of minimizing pain and suffering or the good of patient autonomy, efforts to secure one of these goods may at times entail a lack of proper respect for and attention to the others. At a certain point efforts to secure the one good--the life of the patient--will involve too great a loss of these other, comparable goods.

We could think of this limited state interest as a prima facie duty. The state (and perhaps all of us) has a duty to preserve human life "other things being equal." The notion of a prima facie duty is what the President's Commission apparently meant in writing that "[t]he individual health care provider is likely to help the dying patient most by maintaining a predisposition for sustaining life (while accepting that prolongation of dying may serve no worthwhile purpose for a particular patient)."(17) This makes the interest similar to our duty to aid others in distress. This duty to aid does not require risking imminent, nearly certain death for a slim chance to save another. In such circumstances the life of the person in distress is still a good (worth saving). The suspension of the duty should not lead us to question whether it is in general morally good to aid others in distress. By analogy then, if the state does not exercise its interest in preserving life by requiring life-sustaining treatment, the state has not necessarily failed in its duty to recognize the life of the patient as a good worth securing.

Finally, we must ask whether this interest in preserving life, now understood as a prima facie duty to protect the intrinsic value of human life, is appropriate to a political state (and its legal system) in governing the conduct of its citizens. The appropriateness of this interest as a state interest hinges on the view that human life is inherently social. Any account of the human person that is not radically individualistic could convince us that the state is appropriately interested in the possible death of any individual. All we need to be convinced of is the "fact" that every individual lives to some degree in relation with others and that these interlocking relationships are constitutive of both the individual's life and the human community. The political state, as both steward and guardian of the community, has a legitimate interest in any event that could affect the community for better or worse. Though actual interference is not always warranted, it is then appropriate for the political state to have an interest in the life of a patient who may forgo treatment while in the care of medicine.

Thus, for a court to determine whether the right to refuse medical treatment could be legitimately limited or suspended under some particular set of circumstances, it would have to consider the state's prima facie duty to respect the intrinsic value of human life in keeping with its role as steward and guardian of the human community. This "formula" is not meant to be obvious in its application. Clearly, on a practical level the analysis based on this formula will take the form of a judgment (or "judgment call") affected by all the particularities distinguishing one case from another. Moreover, there is always the possibility of reasonable disagreement in making such a judgment.

As a bottom line, my account of this state interest in life is meant to establish the possibility of substantial conflict between this interest and the right to refuse treatment. Properly conceived, it is not patently obvious that resolution of this conflict should always go toward the protection of the right. At a minimum this indicates the error in assuming, without reflection, that the interest in preserving life could never legitimately limit the exercise of the right to refuse treatment. This same result follows a proper understanding of our second state interest.

The State Interest in Medicine's


We have already noted the problems of associating the ethical integrity of medicine with the current common practices of the profession. While common practices are constitutive of the ethical integrity of any profession, mere conformity of behavior is never itself sufficient to constitute that integrity. For example, imagine a world in which most health will, for the right amount of money, provide narcotics to drug addicts, and that they will do this solely for the money and not to manage the individual's condition. Imagine that those coming to medicine for this "service" are almost always satisfied with what they get (they almost always claim that they want nothing more and nothing less from medicine), and that the numbers so served by medicine steadily increase. Finally imagine that this practice persists and is codified in professional guidelines. Suppose that guidelines declared it within the "rights" of both health care professionals and the public that this service be provided, and that the pecuniary incentive is described as an innocent motive being, as it is, behind all human endeavors. What is instructive about this world of medicine gone mad are the sorts of reasons it forces upon us when we try to justify a proscription of this imagined common practice on grounds of the profession's ethical integrity. We could not say that in protecting its integrity we were securing what is in the self-interest of those who practice medicine, for we would be frustating those interests, especially of individuals who "honestly" claim they entered the profession solely to become rich from the "narcotic service." Nor could we appeal to the self-interests of "patients." Thus, acting in the interest of medicine's ethical integrity could (in principle) put us in opposition to the personal motives and purposes of both those who practice medicine and those who seek its services.

Our justification would have to appeal to purposes that belong to medicine as such, and in regard to which the members of the profession can properly determine their professional duties. The fulfillment of these duties constitutes membership in the profession. The distinction between the integrity of a profession and the integrity of individuals who work in the profession applies here. The fact that this difference is more formal than substantive may explain why in its Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying, The Hastings Center covers the topic of the ethical integrity of medicine by first noting, very briefly, the "ethical mandates" of the profession and then discussing the various possible "personal" values of health care professionals that may affect such decisions (pp.19-20). While the Center suggests that there is more than one ethical mandate for the profession it specifically mentions only respecting patient autonomy. This creates the impression that only a good that one subscribes to as a personal matter could possibly conflict with patient autonomy. If this were the whole story then there would be nothing wrong with those physicians in our example who as a personal commitment seek money from the sale of narcotics.(18) A physician's integrity qua individual may be closely tied to her pursuit of those purposes or goals constitutive of the profession of medicine. Still, the duty to pursue these (particular) goals can be ascribed to her no more and no less than to any other member of the profession. While the fulfillment of these duties would be critical for her integrity as a person, these (particular) goals and corresponding duties are not expressions of her individuality.

What we are looking for are purposes or gols that re both distinctive of medicne and praiseworthy. The state interest is in the integrity of a particular profession, and moreover, in preserving the ethical integrity of that profession. Thus, the goals that define the profession have to be, in general, commendable to seek or serve, a good or set of goods that health care professionals seek qua health care professional, and whose service makes the profession a praiseworthy endeavor.

At least three goods come to mind, identified already in our analysis of the first state interest: human life, the absence or lessening or pain and suffering, and the autonomy of patients. Through these goods may seem familiar to us, it is important to conceive of them as goals properly within the competency of an applied science (or art) like medicine. (19) The good of life is the integrated functioning of the human organism, while pain and suffering are conditions that can in fact be alleviated while in the care of medicne, though not restricted to physiological dysfunction. (20) Among other things, this means that the physician does not secue this good for the patient simply by inducing unconsciousness or stupor (though at times this may be called for). Finally, the good of autonomy is not just the condition of what some style "authentic independence." (21) As a good of medicine, it must be understood also in terms of those physical conditions associated with the self-conscious, independent functioning of the human being.

We can take the (combined) definitions of these three goods as an appropriate way of understanding the ancient adage that health is that for the sake of which medicine exists. (22) If health is the inherent purpose of medicine, then medicine aims, by its very nature, to secure for the patient continued integrated functioning as a human organism, the absence or lessening of physical and related types of distress, and the continuation or recovery of those physical conditions that bring that authentic independence typical of human beings. Two qualifications are needed here. First, I am not arguing that these goods have always been or are currently identified by the profession as its proper purpose; rather, this account is mostly a reflection on the nature of medicine as a distinct human enterprise. Second, I would not claim that these three goods are the only possible constituents of health or the end of medicine. My position is that they are constitutive of this end and that they are as important, if not more so, than any other possible constituent.

While these three goods are obviously interrelated, their identification as distinguishable goods is warranted by the possibility that any one could be sought in a manner that mostly excludes the other two. In fact, the soundness of associating health or the end of medicine with these three goods can be partly tested by imagining such a conflict. Consider, for example, a "medical" practice with a powerful inclination to preserve life (as the integrated functioning of the human organism) but with little concern for either minimizing suffering or patient autonomy. Imagine next a practice fixated on minimizng suffering without any regard for either preserving life or promoting patient autonomy. Finally imagine a "medical" practice whose single concern is giving patients what they want--as an expression of respect for autonomy--without the least bit of care for either life or suffering (our narcotic service example).

Two points emerge from these distorted images of medicine. First, the ethical praiseworthiness of medicine does not reside in the pursuit of some one solitary good, but in the pursuit of a number of goods (at least these three). Second, no one of these goods is clearly of a higher order or greater value than the other two. Each of our three imagined practices is equally corrupt. This means that the three goods do not form a hierarchy of values, but must be pursued in a balanced and reasonable manner.

These constitutive goods of medicine are also basic human goods; they are or should be valued conditions or states of afairs for any human being. They are not historically or culturally relative, nor are they dependent for their value on the assent of the individual enjoying them. This means that medicine is an inherently paiseworthy enterprise; it is not an enterprise that is "good" relative to other conditions or circumstances. This inherent nobility of medicine is not necessarily shared by all human endeavors, because not all our endeavors aim to secure what could count as a basic human good. This is another aspect to the distinction between the ethical integrity of individuals. The praiseworthiness of medicine is not simply a function of the fact (or possibility) that there are "good" men and women in the profession.

The ethical integrity of medicine rests, then, on the balanced and reasonable pursuit of all three of these basic human goods. To require that the pursuit be balanced implies that except for extraordinary or emeregency situations, the goods must not be sought in isolation from one another. To require that the balanced pursuit be reasonable implies that a judgment takes into account all the particulars of a situation.

Because no other profession can claim just these three goods as its true purpose, their pursuit constitutes an integrity that is distinctive to medicine. In turn, because this integrity consists of an inherently praiseworthy pursuit, it can be properly called "ethical." It is, moreover, an integrity worthy of protection no matter what the historical or social circumstances of the profession. But does this account of the ethical integrity of medicine satisfy the four conditions for a countervailing state interest to the right to refuse treatment?

It satisfies the first condition by not reducing the state interest to a protection of the legal rights of health care professionals. There may be a sense in which health care professionals have a "right" to safeguard their profession's ethical integrity, and thus a "right" to actions in keeping with that integrity. But what would be protected here would not be a liberty within which the individual has complete discretion. The situation would be better described as one in which the state is insuring that professionals fulfill those duties that arise from the inherent purposefulness of medicine. Under this interest the state protects the duties (ethical obligations) of one party against the rights (wishes) of another.

Since the ethical integrity of medicine entails pursuit of the good of life, it may look as if this interest amounts to the same as the state interest in preserving life. This is not so for two reasons. First, medicine's integrity does not reside in this one good alone (for example, there will be cases where the integrity of medicine requires letting the patient die). And second, while the good of life may also be served by this state interest, the ethical integrity of the profession is the primary good protected under this interest.

The second condition is satisfied because the good protected under this interest can indeed conflict with the right of patients to refuse treatment. We have identified medicine"s integrity in terms of a balanced and reasonable pursuit of all thee goods, meaning that actions requiring a complete disregard for any of these three goods must be avoided. For example, we might imagine a young widower despondent over the recent, unexpected loss of his wife, now refusing a medical procedure needed to save his own life. The procedure will in all likelihood save his otherwise healthy life, yet he insists on the exercise of his legal right to refuse treatment. He is competent in that he is fully aware of what he is asking of the health care professionals involved with his case and he comprehends the consequences of his conduct. Such a request threatens the ethical integrity of medicine on a number of counts. Since medicine is to serve life and minimize suffering as much as to promote patient autonomy, giving patients whatever they want will not always rightly satisfy the ethical duty protected by this interest. In this example, consider to what extent a physician would have to ignore or disregard the good of life to satisfy the patient's wishes.

It could also be argued that the legal right to refuse treatment and the autonomy whose promotion is necessary for the ethical integrity of medicine may themselves conflict. The good embodied in this right is merely the liberty--meaning the absence of external constraint--to exercise one's judgment or discretion. The autonomy promoted by medicine (partly by protecting or restoring various physical conditions) means more than simply being at liberty. It entails the wherewithal of self-control and self-mastery. Giving patients narcotics simply to feed their addictions, even if they want them and even if it is legally permitted, would not serve the good of autonomy.

Still, a patient who has absolutely no liberty to exercise his or her own judgment on matters of treatment would be effectively robbed of the good of autonomy. Protecting or restoring those physical conditions whereby the patient can exercise an "authentic independence" Is not a good to be enjoyed by the patient only after he or she leaves the care of medicine. Moreover, liberty to exercise one's own judgment may in many case be an effective means to protect or restore the patient's capacity for self-control and self-mastery. Thus, paying attention to and acting on the expressed wishes of patients will be integral to that good of autonomy served by medicine. This means that the state interest in preserving medicine's integrity can limit the right to refuse treatment without destroying it. What the state protects under this interest itself requires patient autonomy, meaning in part a respect for patients' wishes.

The distinction between refusing entirely the care of medicine and refusing treatment while in the care of medicine may also help explain how this interest could limit without destroying the right to refuse treatment. The ethical integrity of medicine would not be compromised by a patient totally rejecting the care of medicine, especially when the health care professionals involved did all they could to persuade the individual to accept medical treatment as such. In some instances when the exercise of a right to refuse some particular treatment would be barred for the sake of medicine's ethical integrity, there may remain this option (and thus "right") for the individual.

Finally, is the interest in the ethical integrity of medicine an appropriate state interest? Our analysis of this state interest has focused on the ethics of a profession, whose position within society makes its character a legitimate concern for government and courts of law. The loss of ethical integrity on the part of any one individual may be insignificnat enough in its social consequences as to warrant government's noninterference. The loss of integrity for a profession like medicine could never be this socially insignificant. Moreover, insofar as the integrity of medicine revolves around the pursuit of goals that count as basic humangoods and for which it is uniquely competent, the failure of medicine to preserve its ethical integrity could result in a generally suffered loss of goods for which government itself has some responsibilities. The possible grave and extensive social consequences of medicine gone mad--or bad--are what validate this interest as a state interest.

As with the first state interest, the use of medicine's integrity as a limit to patients' rights calls for the courts to exercise judgment. The judgment required is no simple matter precisely because it will always be the particular circumstances of the case that determine whether a termination of treatment while in the care of medicine constitutes an abandonement of medicine's alanced and reasonable pursuit of its inherent goods. And again, there is the possibility of reasonable disagreement over when to limit the right even among individuals who otherwise agree on the meaning of this interest. My analysis demonstrates only the error in uncritically assuming that the right to reuse treatment has no possible, legitimate limits, except in relation to the private (self-) interests of third parties.

Prudential Judgments

But what exactly is involved in this "judgment" that courts would be called upon to make if they were to accept this analysis of these two state interests and the possibility of a justifiable limit to the right of patients to refuse medical treatment? The first point to note is the special attention courts once paid to the condition of the patient and the character of the treatment as in Quinlan and Saikewicz. It is clear that these maters are material to our two state interests and how they limit this right. For example, life-sustaining treatment could be forgone without seriously disregarding the intrinsic value of life when the patient is terminally ill and near death. In turn, a highly intrusive medical procedure promising only a short extension of life at great expense to the patient's physical comfort could be forgone without compromising medicine's commitment to preserve life, because the duty here is to preserve life in a way that is in keeping with the good of avoiding pain and suffering. Thus the conditions under which the patient reaches death and/or the conditions under which his or her life would have to be sustained are key factors in a judgment that the interest does or does not limit the right. It is no surprise then that in cases lacking solid analysis of these two state interests, such as Bouvia, the courts argue that the condition of the patient and/or the type of treatment involved makes no differences in whether the patient is authorized to exercise the right to refuse treatment.

We should also note the abandonment of the distinction between "ordinary" or "proportionate" treatment and "extraordinary" or "disproportionate" treatment. For all practical purposes, these terms have disappeared from both legal and nonlegal discussions of the termination. of treatment. In the law, if a patient has an absolute right to refuse treatment, it makes no difference whether the treatment is or is not ordinary/proportionate; thus there is no legal point to applying this distinction. The problem with abandoning this language, however, is that in doing so we also abandon the kind of judgment required in treatment termination cases.

In place of exercising judgment, the courts have assumed a rigid adherence to one fixed principle: that the right of patients to refuse treatment is absolute, except in the case of conflicting third-party legal interests. The courts have embraced this single principle in the belief that it is the only strategy for protecting the authority of the patient as decision-maker. This strategy may also be motivated by a suspicion or fear that there will be no way to distinguish reasonable disagreements among parties to a termination of treatment case from unreasonable requests of patients who remain in the care of medicine. The authority of the patient as principal decision maker does require that her wishes be acted upon even if health care providers or family members would prefer some other decision. These others may disagree with the patients reasonable decision to terminate treatment, but for the sake of patient authority the presumption should favor the patient.

However, there are also bound to be extreme cases involving unreasonable judgments and wishes. It is just not true that courts would generally be unable to distinguish a reasonable, but disputed, wish from an unreasonable wish regarding the termination of medical treatment. In most areas of law (for example, torts, contracts, and criminal law) the courts are regularly called upon to distinguish, as a matter of fact or even as a matter of law, reasonable and unreasonable behavior. It is interesting then that in termination of treatment cases the courts have denied themselves the option of drawing this commonplace legal distinction.

I propose that the proper formulation of a legal decision authorizing termination of treatment is first the principle that the patient's expressed or implied wish to forgo this treatment is generally authorized because the patient, as principal decision-maker, has a right to refuse treatment and then the judgment that the exercise of this right under the circumstances of this case is reasonable in relation to the state interests in preserving life and the ethical integrity of medicine. Moreover, this judgment of reasonableness

relative to our two state interests should not itself be reduced to or formalized into a set of rules (for example, "It is never reasonable relative to these interests to forgo [such and such] treatment"). (23) I am convinced that without the option of limiting a patient's right to refuse treatment by the state's interests either in preserving life or in preserving medicine's ethical integrity, the courts run the risk of reducing the law on termination of treatment simply to a "new set of mechanical rules," which themselves could cause as much mischief in medicine as was the case when patients had little or no authority. (24)

Cruzan's Legacy

Whether the future will see American courts balancing these state interests and patient's rights along the lines suggested in this article may partly depend on what happens (as a matter of appeal and/or precedent) to the recent Missouri Supreme Court opinion in Cruzan, by Cruzan v. Harmon. (25) The Court denied a petition to authorize the removal of a gastrostomy (feeding) tube from a permanently unconscious young woman, Nancy Cruzan, on the grounds that "[the state interest in life] outweights any rights invoked on Nancy's behalf to terminate treatment in the face of the uncertainty of Nancy's wishes and her own right to life." The court had first determined that the state interest in life is not in any particular quality of life but in life as such (pp. 419, 420; 426).

I would like to offer three reflections on Cruzan. First, the mere fact that some court denies the termination of treatment on the grounds of these state interests have been properly understood by the court. Denying the exercise of an otherwise protected right to refuse treatment can be as perfunctory and ill-considered as the discounting by most courts of these state interests.

Second, weighing these state interests and the patient's rights, relative to the circumstances of the case, should be done independently of determining the patient's wishes, especially in the case of incompetent patients. It is critical for the law in this area to keep two issues as separate as possible: (1) whether these state interests can ever outweigh a patient's right to refuse treatment, and (2) whether the patient's right to refuse treatment is extinguished or inoperative when the patient is incompetent and her wishes cannot be clearly determined. As the above quotation indicates, the Cruzan court may not have kept these issues as separate as they should be.

Finally, it is difficult to know what to make of the court's claim that the state interests is "an unqualified interests in life" (p. 422). If the court means that life is to be treated as an intrinsic good, then obviously I agree. If, however, the court means that life itself is the chief good to be secured in such cases, then I disagree. American courts have been creating a one-value ethic for the practice of medicine: the ethic of patient autonomy. The corrective needed is not another one-value ethic.

References 1 Ezekiel J. Emanuel, "A Review of the Ethical and Legal Aspects of Terminating Treatment, "The American Journal of Medicine 84:2 (1988), 291-301. 2 For two examples see: Superintendent of Belchertown v. Saikewcz, 370 N.E.2d 417 (Mass. 1977), 424; and Bartling v. Superior Court, 163 Cal. App. 3d 186 (1984), 193-195. 3 See, for example: Bouvia v. Superior Court, 225 Cal. Rptr. 297 (1986), 301; In the Matter of Kathleen Farrell, 108 N.J. 335 (1987), 352; and Cruzan, by Cruzan v. Harmon 760 S.W 2d 408 (Mo. Banc 1988), 412-413, and 436 (Higgins' dissent). 4 Larry Gostin, "A Right to Choose Death: The Judicial Trilogy of Brophy, Bouvia, and Conroy," Law, Medicine & Health Care 14:34 (1986), 198-202; CarlE. Schneider, "Rigths Discourse and Neonatal Euthanasia," California Law Review 76:1 (1988), 151-76. 5 See Farrell, 352. 6 In the Matter of Karen Quinlan, 335 A.2d 647 (N.J. 1976), 663. 7 For example, In the Matter of Claire Conroy, 486 A.2d. 1209 (N.J. 1985), 1223; see also Farrell, 349. A slight twist to this view can be found in Gray, by Gray v. Romeo, 697 F. Supp. 580 (D.R.I 1988), 589. 8 Bartling, 195; Bouvia, 304 also subscresto this analysis. 9 Brophy v. New England Sinai Hospital, c., 1497 N.E.2d 626 (Mass. 1986), 635. 10 For example, see Conroy, 1225, and Faell, 350-51. 11 Brophy, 638. See also Gostin, "A Righto Choose Death," 200-01. 12 For example, Saikewicz, 427, ad Conro 1224. 13 See John Edward Ruark, Thomas Alfred Raffin, and the Stanford University Medil Center Committee on Ethics, "Initiating d Withdrawing Life Suppor Principles and Prtice in Adult Medicine," Journal of Medicine 318:1 (1988), 25-30. 14 Carl E. Schneider, "Moral Dicourse and the Transformation of American Family Law," Michigan Law Review 83:8 (1985), 1803-1880. Much of Schneider's analysis and critic of the dominant culture will remind readers of both Alasdair MacIntyre, After Virtue (Notre Dame: University of Notre Dame Press, 1981) and Robert Bellah et al., Habits of the Heart (Berkeley; University of Califora Press, 1985). 15 Brophy, 633. 16 See Eric J. Cassell, "The Nature Sufferring and and Goals of Medicine," New Engld Journal of Medicine 306:11 (1982)639-45; and "The Function of Medicine," Hastgs Center Report 7:6 (1977), 1619. 17 President's Commission for thStudy of Ethical Problems in Medicine andiomedical and Behavioral Researh, Decidingo Forego Life-Sustaining Treatment(Washington: Government Printing Office, 1983 48. 18 The Hastis Center, Guidelines on the Termination Treatment and the Care of the Dying (Briariff Manor, NY: The Hastings Center, 1987 19-20. 19 I am rended here of the often-criticized World Heal Organization's definition of 'health see for example; Daniel Callahan, "The WHDefinition of Health," Hastings Centertudies 1:3 (1973), 77-87. 20 EriJ. Cassell, "The Nature of Suffering," 16. 21 Casll, "The Function of Medicine," 17. 22 For example, Aristotle, Nicomchean Ethics, 1094a5-10. 23 Stephen Toulmin, "The Tyranny of Principles," Hastings Center Report 11:6 (1981), 31-39. Toulmin advances a sound argument for the indispensability of discretionary judgment in ethics and (to a lesser extent) in law. 24 Alexander Morgan Capron, "Ironies and Tensions in Feeding the Dying," Hastings Center Report 14:5 (1984), 32-35. We might imagine here a request before a court for authorization of voluntary, active euthanisia; imagine that the patient wants it, a physician is willing to do it--with the support of colleagues--and that all family and loved ones are in agreement. (See Bouvia, 307-308.) Does the state have any interest that could limit a patient's right to such "treatment?" As the courts have handled our two state interests the answer would have be "yes." This may illustrate the danger in having the wrong reasons for making the right decisions in termination of treatment cases. 25 Another recent decision that may signal a change in recent trends is Matter of Wechtshester County Med. Ctr., 534 N.Y. 1988. Here. however, the issue is the test for determining an imcompetent patient's wishes, and not there interest.
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Author:Blake, David C.
Publication:The Hastings Center Report
Date:May 1, 1989
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