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The burden of decision.

The good reasons for judicial intervention in some bioethics cases do not mean that physicians, administrators, and families should routinely seek to shift the burden of decision to the courts. Over the past three decades the courts have been a major forum not merely for resolving bioethical disputes but for acquainting the public with the hard choices that modern medicine so often poses. The courtroom has become such a familiar setting in this context that we seldom ask: what are we doing here? And yet a hard look at that issue is essential if we are going to preserve and enhance the very values articulated in such landmark opinions as Cobbs v. Grant, (1) In re Quinlan, (2) and Barber v. Superior Court. (3) Ironically, the groundwork laid in those cases now requires that judges be more reluctant to become involved in the disputes about medical interventions brought before them, lest in the process they subtly erode the high view of human dignity and liberty established in these cases on informed consent, patient autonomy, and the limits of medicine.

Of course, no one can deny the importance of the landmarks themselves. The full force of judicial authority and eloquence was needed to shake physicians from their predisposition to hold onto knowledge, conceal uncertainty, and reserve decision-making power to themselves. In opinion after opinion,judges made clear that before treating a patient, a physician must not merely obtain consent but must disclose the information the patient needs to make a decision about whether and how to proceed.

Some commentators have been skeptical that the judges ever meant what they said, so many have been the impediments they placed in the way of patients actually enforcing their rights by collecting damages for violations of their right to choose. (4) Yet the medical profession-along with patients and their advocacy groups-has apparently believed the ringing phrases in the judicial opinions, as have the rising corps of bioethicists who take the legal doctrine of informed consent as bedrock.

Indeed, only now, after twenty years of debate, are bioethicists seriously struggling with integrating concepts like community into an analysis that has focused almost entirely on autonomy and self determination. Thus, informed consent has had an effect on physicians' attitudes, probably on their behavior, and certainly on how prominent physicians and ethicists describe the ideal physician-patient relationship that is far out of proportion to the doctrine's actual significance as a basis for recovery. It has been an influence for good of which the law can be proud, even if judges-like the rest of us-need some time getting used to the full implications of what they have written.

As manifested by the leading cases on informed consent, good reasons certainly exist for courts to become involved in some bioethics cases. When circumstances change in important ways--as in medicine over the past several decades-and existing doctrines seem inadequate or of unclear import, the courts perform a vital law-making function through their opinions in landmark cases. What I find to be troubling, however, is both our increasing proclivity to turn to the courts routinely, especially in treatment-termination cases, and judges' greater willingness "to yield to spasmodic sentiment, to vague and unregulated benevolence," in the trenchant phrase of Judge Cardozo. (5)

In this article, I will initially take the typical bioethics case to involve a disagreement about the recommended medical intervention (though later I will attempt to generalize some conclusions to a more diverse group of cases). The clear implication of the informed consent cases is that when disagreements occur, a patient's refusal of recommended treatment will be respected. Formally, courts have supported the notion of informed refusal. Yet the courts have been less robust in support of patient choice when the issue is not liability for inadequate disclosure but disagreement over the refusal itself. My concern is not just that the doctrine of informed consent will be undermined by judicial failure to back up patient choices, but that physicians (along with health care administrators) will seek to transfer to judges the very paternalistic powers that thirty years of bioethical analysis and court cases have aimed to banish. Here Comes the judge

On what grounds, then, have courts sought to justify and explain their intervention in bioethical disputes? The first is protecting patients from harm. Although clearly problematic when applied to competent patients, the concept of protecting patients is a traditional (and appropriate) role for the judiciary. But that does not end concerns about transferred paternalism (from physicians to judges), it simply shifts the nature of the concern. It makes central an issue that has received too little attention, namely proper standards and procedures for the determination of incompetency. And it opens up the question: how is protection to be achieved?

A second major reason for involving the judiciary is to protect health care professionals from liability, both civil and criminal. If a physician turns off a respirator, might she find herself later defending a ton action brought by a disgruntled relative or, even worse, a criminal action brought by the district attorney? Frankly, this fear seems greatly exaggerated. As to the first, if informed decisionmaking has occurred-whether by the patient directly or by whoever has authority to act on the patient's behalf-there is little likelihood of a suit being brought and even less of its succeeding. As to the risk of criminal prosecution, physicians are never convicted for carrying out decisions mutually made with qualified surrogates, much less with patients. Thus, there should be little cause for judges to intervene simply to dispense advance absolution for health care providers.

What about protection of third parties? Here the rationale for intervention is very dependent upon the facts at hand. In the case of life-sustaining treatment, for example, the argument that a mother with young children should not be permitted to forgo treatment that might lengthen her life was once persuasive with courts, but in recent years has been notable for its omission. More weighty, and--indeed-often decisive, is the judicial role in protecting third parties from harm that could come to them directly and palpably from a patient's choice, such as a refusal to be vaccinated when a contagion is loose.

The fourth reason cited to invoke judicial intervention- protection of societal interests-has the vice, or virtue, of great vagueness. The primary collective concern on which reliance is placed is the sanctity of human life. The central problem with this appeal is that it is so powerful as to over-whelm all others. In a system truly prepared to let the communal trump the individual, this would pose no problem. But even if greater attention is lately being paid to collective interests in bioethical discussions--such as the recognition that the need to stem the spread of HIV infection may justify certain limitations on individual privacy-our legal and philosophical framework in the end continues to favor personal liberty and diversity over conformity to a single norm, especially one that smacks of religious dogma. Thus, when societal interests are invoked to justify intervention, they are typically framed in a way that keeps them from trumping other interests.

Society's interest in respecting and protecting the norms of the medical profession has been much less influential with courts in recent years, for several reasons. Many judges have realized that too great respect for this interest is inherently inconsistent with the doctrine of informed consent. A patient should be under no greater obligation to accede to an intervention on the ground that it reflects "the norms of the profession" than because the attending physician favors it. Even more telling, the courts have come to see that professional norms are either nonexistent regarding a particular point (such as when life begins) or that current norms (as articulated, say, by the AMA's Council on Ethical and Judicial Affairs) now firmly espouse respect for patient choice, not medical paternalism.

These five factors-protection of the patient, protection of professionals from liability, protection of third parties, protection of societal interests, and respect for the norms of the profession-might all be described as grounds for societal intervention, rather than uniquely for judicial intervention. The two get lumped together because, in a system that respects due process of law, exercise of the state's coercive power usually involves prior approval by a court. A sixth and final factor-resolution of disputes among the parties-is more narrowly relevant to judicial intervention, and is especially relevant in situations in which the dispute essentially involves private rather than collective interests.

As a general matter, we take it to be a mark of a civilized society that it provides forums where disagreements can be resolved in an orderly, principled, and unbiased fashion. Yet as courts have long recognized, there are good reasons for not exercising their potential jurisdiction, and a variety of doctrines-about justiciability, ripeness, and the like--exist to permit (and sometimes even to mandate) rejection of a request for judicial intervention. In bioethics cases, it is especially meet that courts heed basic principles about the need for a genuine controversy and for a question that is ripe for decision, while also being cautious in applying rules on mootness, since medical matters tend to move along a more rapid timetable and a strict bar of any case that is moot on its facts (the patient has died, for example) could lead many issues repeatedly to evade review. Problems When Courts Do Intervene

Among the problems that arise when medical decisionmaking is brought into the courtroom, I will mention half a dozen. First is the issue of time. Plainly, there are occasions when the legal system moves with a good deal of dispatch. But the strength of the system lies in its ability to deliberate carefully and thoughtfully about an issue, and especially in bioethics cases, there are plenty of issues, often rather unfamiliar ones for a judge, to deliberate about. The difference in sense of time between physicians and lawyers was crystallized for me by the statement of a physician who testified before the President's Commission on Medical Ethics. She said that when her lawyer friends congratulate themselves on filing a brief on an emergency matter, they mean that they did it in a week or perhaps in several days, while when she has an emergency, she runs up the stairs in the hospital rather than waiting for an elevator.

A second problem with judicial intervention is the way these cases tend literally to dislocate judges: called to resolve cases that often involve bed-bound patients, judges often hold their hearings in the hospital and even right at the patient's bedside. Judge J. Skelly Wright's trip to the Georgetown Hospital in an early Jehovah's Witness case may have been justified by his doubts about the patient's (fading) competence to refuse the blood transfusion," but it provided no precedent for a similar maneuver a quarter century later by another District of Columbia judge who went to Angela Carder's hospital but never even spoke with her before ordering a cesarean section despite the objections of her family and attending physicians.' The trappings ought not be confused with the office, but there is something important for judicial decisionmaking in the robe, the bench, the whole setting-and especially in the sense of security and propriety in decisionmaking that the trappings give to the judge herself or himself. Of course, the robe and gavel may come along to the hospital. But everything about that alien environment conspires to tell the judge-and the parties and witnesses--that the men and women in white coats and green scrub suits, not the judge, are really in command. (8)

Third, judicial involvement in medical cases spawns communication difficulties. To begin with, the subject matter subverts the utility of the forum. This can, of course, occur in any highly complex and technical field in which the participants are used to communicating with each other through a shared vocabulary and, even more important, through shared knowledge and assumptions. It is not only time-consuming to spell out all the relevant information, but the participants are likely not always to know exactly what information is being correctly understood and when different presumptions are causing a point that they think means one thing to be heard differently in the "courtroom." Moreover, courtroom dramas lend themselves to false certainties. Even participants (such as patients and their families) normally inclined to feel ignorant or indecisive in a hospital setting are impelled by the nature of litigation to take finn stands and to paint the facts accordingly. The obverse problem also occurs: the forum subverts the task at hand. Since bioethics cases involve such personal matters and deeply felt values, everyone's discomfort at probing too aggressively poses a further impediment to clear and honest communication.

A further, more subtle communication problem arises when the parties merely want an imprimatur, not an independent resolution of a dispute-for example, in life-support cases when physicians do not seriously disagree with the family about stopping treatment of an incompetent patient and are in court at the insistence of the hospital's lawyer. The family may believe it is going along with what has been chosen by the physicians, who in turn think their medical judgment has been supported by the hospital, whose administrators are prepared to go ahead if approval can be obtained from the judge, who in turn thinks she is merely blessing what all the other parties agree to. Wouldn't the patient's interests be better served if the family and physician realized that the real decision rests with them, subject to later review (and, in an extreme case, even to sanctions) if they have not discharged this responsibility appropriately?

The lack of genuine controversy in many cases is also at odds with the traditional view of the adversarial system. Nor is this problem limited to cases about withdrawal of life-support. For example, in kidney transplant cases involving identical, minor twins, Massachusetts courts in the 1950s gave declaratory judgments on matters about which all participants-the twins, their parents, and the physicians-agreed.

Sometimes, when an incompetent person is involved, as in the landmark 1969 Kentucky sibling transplant case, Strunk v. Strunk (9) an attempt is made to overcome this lack of controversy by appointing a guardian ad litem. Such a person seems to me to be in an awkward position, since it is expected that the guardian will oppose whatever motion has been made rather than do what a guardian should, that is, to exercise independent judgment about the incompetent's actual interests. Likewise, in some surrogate motherhood cases, the parties do not disagree with each other but rather join in asking the court for the same result; only the intervention of the state, into what are nominally private disputes, brings an element of genuine controversy. (10)

Assuming that these difficulties with judicial involvement are overcome, a fifth one goes to the heart of the effort to shift the burden of decision from medical to judicial shoulders, namely, the very difference in the mode of decisionmaking in these two arenas. The hallmark of judicial decisionmaking is its finality. like Alexander facing the Gordian knot, the judge succeeds not by untangling a case but by cutting through contradictory facts and arguments and resolving the case. Once a final judgment has been entered, countless legal principles-from the standards applied by appellate courts in reviewing the facts found below, to the doctrines of estoppel and stare decisis-aim to avoid revisiting points already resolved. Judges may be left with a realization of the constructed, and highly fallible, nature of the reality that inheres in what they do. But to the outside world, it seems definite, fixed, and final-and to be honored not necessarily because one agrees with the outcome but because such respect for the judgments of courts is the linchpin of our legal system and indeed of civil order.

How far this seems from the uncertainty that inheres in matters medical! Are judges really ready for the job of surrogate physician, much less surrogate patient? For situations that do not just evolve over time but that may completely reverse themselves in a matter of minutes? For prospective rather than predominantly retrospective decisionmaking, in circumstances where the barrier to obtaining "the truth, the whole truth, and nothing but the truth" is not deceitful witnesses or crafty lawyers but the limits of current understanding of human functioning and a lack of time and resources to find out everything one might be able to know, much less want to know?

Faced with the pressures of decisionmaking under conditions of extreme uncertainty, the impulse of judges called to decide bioethics cases is to temporize. I am not unsympathetic with this impulse. Indeed, I often wish physicians were more willing to employ it as a negotiating posture with their patients. But it fits poorly with many bioethics cases. When, in that famous Georgetown College case, judge Wright wrote that since "a life hung in the balance" and "[t]here was no time for research or reflection," he had authorized a blood transfusion for Mrs. Jones "to preserve the status quo," (11) he actually denied the patient the one thing she wanted, which was to remain unsullied by a blood transfusion. By making a medical-type decision ("a blood transfusion is needed now to save this woman's life") he abdicated his real role of making and justifying a judicial decision ("the preservation of life, even involuntarily, is a higher value than a person's religious beliefs").

A sixth problem that occurs when bioethical issues end up in the courtroom is the inevitability of publicity. Most of us would like our medical care to be carried out in private. We probably think that we and our physicians would make better decisions in calmer and less contentious circumstances; moreover, our condition and treatment are simply no one else's business. Increasingly, however, medicine is like a three-ring circus. Not all of this results from the judicial process. Think, for example, of Barney Clark, the first recipient of the so-called permanent, totally implanted artificial heart, whose every breath was the subject of press releases from the University of Utah and whose urine output was reported on the nightly news from coast-to-coast. Perhaps Dr. Clark and his family gladly agreed to all this, but patients and families who are dragged into court typically do not give up their privacy so willingly. Sometimes they may find cover as members of the ubiquitous Doe family. But in many other cases, for whatever reason-from Karen Quinlan to Nancy Cruzan, from Mary Beth Whitehead to Pamela Stewart Monson-the actual parties become familiar objects of national curiosity. The prospect of People magazine on the line for the judge in a bioethics case seems no more attractive-or conducive to good decisionmaking-than tabloids replacing The New England Journal of Medicine as physicians' preferred venue for reporting their work. Differences and Commonalities

Bioethics cases are a diverse lot, and the appropriate response for a judge faced with one will depend upon the category into which it falls. Let's consider three primary categories. First are "lifesupport treatment decisions," the overwhelming majority of which involve competent or formerly competent persons. As lawyers and physicians become more accustomed to aiding their clients to execute durable powers of attorney and living wills, I suspect that the wishes of many-perhaps most--seriously ill patients regarding life-support will be available, either directly from them as competent patients or from their surrogate decisionmakers and explicit instructions. In such circumstances, judges should affirm that the decision rests with the patient. Except in extraordinary cases-involving perhaps a threat of contagion or the like-no substantial interests are arrayed against those of the patient, so there is no need for a judicial balancing act. The patient's choice may discomfort others, but that is often the consequence of an exercise of liberty, and a free society has to be able to function with that. The major concern is thus that the judicial process not interfere with good medical care and good communication between physician and patient or surrogate, including efforts to maintain or restore the patient's own decision-making capacity to the maximum extent.

If life-support decisions ought to be characterized by maximal deference to the voice of the patient, judicial involvement with reproductive decisions--whether in vitro fertilization, artificial insemination, surrogate motherhood, or what-have-you-ought to be constantly attentive to interests that are not well represented by the loud voices of the adult parties to the transactions. This is not to suggest that courts should depart any further from the right of privacy than the U.S. Supreme Court or the law of a particular state requires. Yet, as the Michigan Court of Appeals has opined, "the welfare of the child [of the new reproductive techniques] must continue to be of paramount importance." (12) In this category of cases, judges may need to be pro-active to ensure that these children are treated as ends in themselves (with their own interests) and not merely as means to the ends of the adults involved.

The hardest cases are those-such as maternal-fetal cases-in which the exercise of one person's liberty squarely threatens the physical well-being of another. Here judges should remain firmly oriented in reality rather than abstraction. Frustrated by our inability to halt the epidemic of drug use, society will be tempted to look for easy and dramatic ways to protest the harmful consequences of this behavior. Punishing pregnant addicts is one such response. More helpful responses lie outside the courts' jurisdiction-with the legislature and the executive. But judges may be a force for improving society's response, as well as a protector of justice, if they insist that, if women are to be punished for actions that expose fetuses to harm, their actions must be truly "voluntary," in the sense that Justice Holmes used that term a century ago in his work on the common law, namely that the women had an opportunity to avoid the harm and unreasonably chose not to take it. For crack-users and alcoholics, this means that before society tries to solve the problem of prenatal substance abuse with criminal prosecutions, it ought to make available to pregnant women drug detoxification and treatment programs appropriate to their circumstances.

Despite the differences among the categories of cases, several common threads also tie bioethics disputes together. We need to realize that in the majority of instances, courts do their jobs best when they try to ensure a fair and appropriate process rather than a particular outcome. Typically, this means that a court should be concerned with finding and empowering a competent decisionmaker, whether that be the patient or an appropriate surrogate.

One of the milestones in bioethics, the New Jersey Supreme Court's 1976 Quinlan decision, reveals problems in this regard. The justices are often praised for having suggested that cases of that type need not be routinely brought to court. Yet it should have been enough for the court to know that Joseph Quinlan was a knowledgeable, sincere, and careful spokesman for his daughter's interests, and that the choices he and her physician made would be reviewed by a hospital ethics committee. The court need not have put itself in the position of imagining what Karen would have decided if she "were herself miraculously lucid for an interval ... and perceptive of her irreversible condition.1113

Whether a surrogate is a natural guardian (as a parent for a child) or one appointed by the court, if the guardian's decision is challenged, the correct question is not whether the judge would make a different choice-for there will always be a range of choices rather than a single, correct choice, whether one is interpreting a patient's wishes under the "substituted judgment" doctrine or discerning the patient's "best interests" when his or her specific wishes are unknown. Instead, the question is whether the process by which choices were made reveals such lack of attention or devotion to the patient's welfare, such a conflict of interest, or such an inability to use relevant information to arrive at a decision, that the guardian should be replaced by someone else.

Complementing this basic principle is the desirability of courts preserving as much flexibility for decisionmaking as possible, in the face of the uncertainty that characterizes so much of health care. A court that declines to make decisions itself can then focus on giving those who do have decisionmaking authority sufficient scope and reassurance to enable them to respond to the medical situation as it unfolds. Flexibility is most difficult to preserve exactly where it is most needed: when decisions are prospective, not retrospective, such as petitions to remove feeding tubes or to authorize a cesarean section on an unconsenting woman.

To the extent that checks on decisionmaking are appropriate, courts would also do well to rely on consultants or advisors who are closer to the bedside. While few hospitals apparently responded to Quinlan by appointing hospital ethics committees, a majority-spurred by the so-called federal Baby Doe II regulations-now have such committees, though they are quite varied in composition, purpose, and actual functioning. Without giving such bodies carte blanche, the judiciary could do more to protect relevant interests by fostering and guiding the development of such close-to-the-bedside processes. If ethics committees are to possess the independence they need to provide necessary protection for incompetent patients, courts will have to give substance to what constitutes "reasonable" conduct by such a group.

Almost by rote, judges deciding difficult bioethical issues on unfamiliar points end by encouraging-often pleading for-a legislative response. While thoughtful legislation would be very welcome, experience has shown that serious problems can occur when judges' prayers for legislation are answered. The prime example is so-called living will legislation. Since the first one was passed in California in 1976, statutes on this topic have sown much confusion and have probably detracted as much from patients' real fights as they have added. I used to accept the notion that legislation, like sausage, is fine, one just does not want to watch it being made. I'm now much less sanguine about the products themselves, at least those that emerge from ordinary legislative processes, without the benefit of initial formulation by one of the state or national governmental bioethics panels.

Finally, and most fundamentally, the common thread I see for all bioethics cases is the desirability of holding off the eager willingness of others to shift the burden of decision onto the courts. Twenty-four years ago, Justice Jacob Markowitz of the Supreme Court of New York had before him a petition brought by two of Sadie Nemser's three sons to be appointed her guardian for the purpose of consenting to an amputation of her gangrenous fight ankle and foot. Her physicians wanted to operate but were reluctant to do so in the absence of judicial authorization because Mrs. Nemser's third son, a physician, refused to consent since he did not think his mother could survive the surgery or would benefit from it. From an investigation by a guardian ad litem and a psychiatrist, Justice Markowitz had no doubt that Mrs. Nemser was unable to understand the situation or to make an informed choice. Nevertheless, he declined to grant the petition. As he wrote, the physicians and hospitals were attempting to shift the burden of their responsibilities to the courts, to determine, in effect, whether doctors should proceed with certain medical procedures definitively found necessary or deemed advisable for the health, welfare, and perhaps even the life of a patientRejecting their bid for immunity, which he found "incongruous" in light of the Hippocratic oath, the judge lamented "what an ultra-legalistic maze we have created." In its place, judge Markowitz clearly favored "the exercise of sound medical judgment," to which I would add-in light of the subsequent elaboration of the informed consent doctrine-"in the context of mutual decisionmaking by physician and patient (or surrogate) as informed partners." judges would do well to follow the lead of the Nemser case and not to regard a refusal on their own pan to intervene as indifference to patient's well-being. Instead, as Judge Markowitz demonstrated, it would be better for all concerned if courts reminded "those whose responsibility it actually is, to act appropriately, not arbitrarily, and without fear." (14) References Gobbs v. Grant, 8 Cal.2d 229, 502 P.2d 1 1972). See also Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert. denied, 409 U.S. 1064 (1972); Wilkinson v. Vesey, 110 R-I. 606, 295 A.2d 676 (1972); Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093 (1960); Salgo v. Leland Stanford Etc. Bd. of Trustees, 154 Cal. App. 2d 560, 317 P.2d 170 (1957). (2) In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922 1976). (3) Barber v. Superior Court, 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983). (4) Jay Katz, "Informed Consent-A Fairy Tale? Law's Vision," University of Pittsburgh Law's Review 39 (1977), 137-74. (5) Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 141. (6) Application of President and Directors of Georgetown College, 331 F.2d 1000 (D.C. Cir), cert. denied, 377 U.S. 978 (1964). (7) In re A.C., 533 A.2d 611 (D.C.C.App. 1987). (8) I find it hard to believe, for example, that the Indiana judge who in 1982 decided the original Baby Doe case in the wee hours of the night with "no judicial accoutrements whatsoever" in an unused storage closet on the top floor of that hospital in Bloomington deliberated on the matter exactly as he would have had it been heard during a regular workday at the courthouse. See Jeff Lyon, Playing God in the Nursery (New York: W.W. Norton & Co., 1985),31. (9) Strunk v. Strunk, 445 S.W.2d 145 (Ky 1969). (10) See Syrkowski v. Appleyard, 122 Mich.App. 506, 333 N.W.2d 90 (1983) (refuses to issue order of filiation sought under Paternity Act to establish petitioner's status as natural father of fetus conceived pursuant to surrogate mother contract). (11) Application of President and Directors of Georgetown College, 331 F.2d 1000 D.C.Cir.), cert. denied, 377 U.S. 978 (1964). (12) Syrkowski v. Appleyard, 122 Mich. App. 506, 333 N.W.2d 90, 93 (1983). (13) In re Quinlan, 70 N.J. 10, 355 A.2d 647, at 663. (14) In re Nemser, 273 N.Y.S.2d 624, 629, 631 (Sup. Ct. 1966). Alexander Morgan Capron is University Professor of Law and Medicine, University of Southern California. This article is adapted from the keynote address to the National Conference of the State Judiciary on Bioethical Issues, September 7, 1989.
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Title Annotation:judicial intervention in bioethics cases
Author:Capron, Alexander Morgan
Publication:The Hastings Center Report
Date:May 1, 1990
Previous Article:Case studies: the price of silence.
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