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The calculus of consent.

The Calculus of Consent

Nancy Cruzan's personal tragedy threatens to become a national one. Embracing so many fundamental and symbolic aspects of life, the question of how she dies has understandably provoked profound and diverse responses. Various arguments have sought to convince the U.S. Supreme Court to preserve either the right to life or the right to liberty, as if they were mutually exclusive and the only two interests at stake. Yet the rhetoric of rights has proven confusing, demonstrating only that "[l]ogic relentlessly and inappropriately pursued to its end can as readily lead to destructive results as can muddled emotions." [1]

At issue in Cruzan is not a choice between life and liberty, but a way of life consistent with a belief in ordered liberty. Cruzan poses a basic political problem that should occasion honest introspection and a search for a solution that harmonizes conflicting concerns most consistently with the Constitution's vision of the proper relationship between individuals and the state, and of consent's role in maintaining accountability. Understanding and preserving that vision takes more than mere philological and rhetorical skill; it requires embracing an experientially shaped perspective such as guided the Constitution's framers.

The Constitutional Vision

Where logic alone fails us, experience must be our guide, for as Justice Holmes noted, "the life of the law has not been logic: it has been experience." Reconciling the values, explicit and implied, that the Constitution requires us to protect involves bringing the wisdom gained from experiences the framers never had, such as that derived from the history of modern medicine, to the vision represented by the Constitution.

The Constitution rests on the belief that citizens should both exercise self-determination and be free from unwarranted government interference in their personal lives. Central to the framers' vision was their experience of living under a government that denied individual freedoms concerning religious practice, expression, and conscience, and permitted excessive accruals of power, which the framers viewed as a form of tyranny. However difficult it may be to respect freedom when its results seem obnoxious, the framers concluded that the hardships of permitting freedom are fewer and less dangerous than the hardships of denying it, and that the dispersion of power prevents the excesses of tyranny. The Constitution's basic sense is that life is better if the state does not dictate attitudes or actions and plays a minimal role in defining individual values. [2]

Preserving Life

This constitutional vision of balance exposes major difficulties in the Missouri Cruzan opinion. In asserting an unchecked state interest in preserving life, even in cases that do not violate any criminal prohibition against murder or suicide, the Missouri Supreme Court undertakes to obstruct an act the state could not prosecute. Because Nancy Cruzan "may" live for thirty years and is not imminently dying for as long as she is artificially fed, she is not terminally ill under Missouri's statute. The court concludes that its interest in preserving life outweighs any identifiable interest in permitting her to die. Indeed, Missouri's "unqualified" interest in preserving life precludes any interest in the quality of life.

Moreover, the court announces that only "clear and convincing" evidence will satisfy the obligation to respect self-determination, and then discounts entirely evidence the trial court found credible. To protect the infirm and the disabled, the court rejects as unreliable substituted judgement or best interests standards for decisionmaking. The crucial question of precisely what evidence would be "clear and convincing" is left unanswered, but the language used by the court, the trends indicated by the O'Connor case in New York, and legislation enacted in furtherance of the so-called "right-to-life" agenda, suggests that such an evidentiary standard will prove chimerical. [3]

This solution, derived from reasoning whose overriding goal is to preserve life, will create more problems than it solves. In making treatment withdrawal nearly impossible the Missouri court makes it less likely that treatment will be initiated, because time-limited trials will become irrevocable. Physicians will be reluctant to recommend, and patients or their surrogates loath to assent to, treatment whose efficacy and continued desirability they cannot gauge in advance - such as the cardiopulmonary resuscitation that was attempted on Nancy Cruzan. The disabled and the infirm, those most in need of care and protection, will likely receive less treatment.

Furthermore, eliminating quality of life considerations from decisions about life-sustaining treatment permits treatment to proceed regardless of the pain it inflicts, how burdensome it becomes, or how futile it proves to be. Once initiated, treatment must continue until death is imminent, leaving patients the option to refuse useless care only, because the state's disinterest in quality of life requires it to remain indifferent to the patient's experience of treatment. Patients thereby become things and the individual's interest in a natural death is subsumed under a quest for perpetual life.

The court's professed desire to prevent "unpleasant deaths" offers neither principled nor logical guidance. Ironically, the faulty reasoning springing from this desire potentially leads in two different but equally unpleasant directions. To avoid the unpleasantnesses of death by suffocation, excessive bodily toxins, pneumonia, or gangrene, the court could bar patients from forgoing ventilators, dialysis, and amputations, substituting iatrogenic demise for natural death. Alternatively, if Missouri truly wants to make every death pleasant, the only way would be to offer what it most wants to ban (except for its death row inmates): lethal injections.

The Missouri court's unlimited pursuit of the interest in preserving life makes nonsense of that interest, eviscerates other equally worthy interests, and disserves those it wishes to protect. Moreover, this strategy avoids Cruzan's real issues - how to balance the interests in preserving life and liberty in the face of death - entirely, for as Edward Keyserlingk has noted,

To use the sanctity of life principle as a tool to determine all moral decisions in advance without any consideration of further questions and individual circumstances ... distorts the real role of that principle and uses it as a decision-avoiding, not a decision-making tool. [4]

For some, life under Missouri's scheme will become a life not worth living.

Preserving Liberty

Rejecting an unqualified interest in preserving life does not mean, however, that the interest in preserving liberty automatically prevails. Arguments for withdrawing treatment based on the current understanding of liberty run into their own brick wall, which the Missouri court (and others) have properly identified.

Informed consent and the right to refused treatment are traditionally understood to foster the principle of autonomy, that is, self-determination. This gives adequate guidance when patients are competent, or when previously competent patients have left clear advance directives; honoring such wishes respects self-determination. Many people do not leave clear instructions, however, and most leave none at all. How do we decide when such guidance is meager or wholly absent, when the evidence is not "clear and convincing"? What about patients who are children, or whose mental condition precludes their ever articulating a choice we could accept as competent? All have an interest in both receiving and forgoing treament, but strict loyalty to self-determination and consent in such cases leads to a conundrum. It makes no more sense to say patients must not be treated because they cannot say yes, than to say they must be treated because they cannot say no. Resting consent wholly on the principle of autonomy risks an extremism that disserves patients as much as an unlimited interest in preserving life.

When the Missouri court says it finds no "principled legal basis" for halting treatment except where self-determination demands it, then it begs the question raised by most cases and echoed even by some of liberty's advocates. How is it that cases such as Quinlan do not simply alter the calculus of life by contriving a "rationale to achieve the end sought"? What is substituted judgment about?

Just as the Constitution derives much of its content from historical experience, so does the concept of informed consent. Medicine has learned from its own experience. Its history, and the abuses that are part of it, show that informed consent serves major functions beyond fostering self-determination. These include promoting rational decisionmaking, encouraging professional self-scrutiny, protecting human dignity, preventing fraud and coercion, and educating the public. [5] These values relate intimately to self-determination, since they make little sense in the absence of personal choice; they also provide a framework for making clinical decisions, however, when self-determination is not possible or gives unclear guidance. Such values offer an honest and reliable basis for reaching individualized decisions without dictating outcomes. Finally, they encourage accountability through a process that exposes to view and evaluation the panoply of interests at stake in individual cases, including the desire to preserve both life and liberty.

We have come to learn that we err most if we permit clinical decisions to be made without regard for the individual circumstances and the range of values promoted by this expanded scope of informed consent. Common to our constitutional and clinical experiences is the principle known as the right of privacy, which protects self-determination, deters the abuse of persons, and ensures accountability.

Privacy and Consent

Privacy encompasses much more that the right to choose. It also means maintaining certain confidences and preventing unwanted intrusions into personal decisions. Privacy permits people to define for themselves their moral core and prohibits the government from dictating that core's content. These interests do not cease when self-determination is absent; on the contrary, their importance grows. Incompetent patients have an interest in preserving bodily integrity and informational confidences, and in barring unwarranted state meddling in their lives. For health care decisions we prefer the guidance of those most likely to know, understand, and promote that core, in a progression that simultaneously protects it from remote control by the state. [6] Thus, we turn to the family and those who know the patient best, if the patient is a child, mentally disabled, or when available expressions of the patient's moral core do not satisfy the state's definition of "clear and convincing" evidence. We seek guidance from the individual's community, and turn last to the state, because the state should be the least involved in defining individual values.

This helps explain why and how we use substituted judgment. Viewing patients not simply as scriveners, and acknowledging (as do the rules of evidence) that statements exist in conduct as well as words, we look at such essentials as: the patient's intent, to the degree ascertainable from past expressions; any moral, religious, or other beliefs relevant to the patient's probable intent; the patient's medical condition, including the level of mental and physical functioning; the nature, benefits, risks, invasiveness, and pain associated with any treatment; the sentiments of family and friends; and the professional judgment of the physicians involved. Lacking knowledge of the patient's intent and values, we try to assess the patient's best interests by weighing the benefits of treatment in relation to its burdens, or considering whether treatment might be futile. Substituted judgment and a best interests analysis, then, satisfy the need to protect individual self-determination and welfare, and to deter excessive governmental involvement in personal matters. They provide a basis for reconciling life and liberty in a principled, accountable manner consistent with experience.

The fatal error of the Missouri Supreme Court's Cruzan decision lies in its failure to appreciate the central and dual role of privacy and consent [7] in preserving the way of life promoted under the Constitution. Had the court not misunderstood the conceptual and historical premises of privacy and consent, it would not have overlooked the "anti-totalitarian" [8] function common to each: protecting self-determination and avoiding investing the state with unwarranted authority over individuals. In its haste to equate the right of privacy and the doctrine of informed consent only with self-determination, and to label them as the sources of the "unfettered autonomy" it seeks to bridle, the court overlooked the debt privacy owes to Skinner v. Oklahoma, [9] which limits the state's power to force persons to undergo invasive interventions, and that informed consent owes to medicine's history of abuses. The court, instead, converted informed consent into a license to the state to provide treatment, with no process of accountability. If the state can override the beliefs of patients, the family, and the ethics of professional medicine to accomplish its end, it is as much "medicine under dictatorship" as any other system whose focus is not on the patient as a person.

Misconceiving consent and privacy creates the very situation the court professes to avert. Just as consent curbs the medical imperative and demands accountability, privacy curbs the state and keeps it honest. Missouri's illusory evidentiary standard impermissibly alters the calculus of consent by subverting the time-proven central values of both consent and privacy. The consequence is that Missouri is invested with a power that history has taught is unacceptable - total control over the death of individuals. [10]

The Missouri court's solution is not simply unconstitutional, it is anticonstitutional. By ignoring consent and privacy's dual role the court upsets the balance between life and liberty, and between the state and the individual that the Constitution seeks to preserve. It invites the demonstrated pitfalls of one form of tyranny to solve the problems it erroneously believes arise from another, and prevents consent from fulfilling its function of maintaining accountability in relationships, large and small.

Honest Solutions in an

Imperfect World

When asked what form of government the framers had given us, Benjamin Franklin is reported to have said, "a republic, if you can keep it." The challenge the framers posed, when they told us to protect life and liberty, was to do so in a way consistent with protecting the way of life the Constitution attempted to describe. Maintaining that balance is a frustrating and exhausting endeavor. It calls for a sense of purpose and history and the wisdom to confront honestly the tensions that arise in a free society, and demands accountability.

In overlooking the historicity of privacy and consent, the Missouri court ignored its own maxim: "to fail to appreciate the legal foundation is to risk the application of doctrine in an unprincipled manner." If a page of history is worth more than a pound of logic, we all have something to gain from the lessons of Cruzan. History teaches that the right solutions work not because they are perfect, but because they are the most preferable in an imperfect world. By honestly seeking solutions that enable us to permit conflicting but deeply held convictions to survive in tension, we can continue to be the sort of society our constitutional ideals challenge us to be. [11]


[1] Guido Calabresi and Philip Bobbitt, Tragic

Choices (New York: Norton Books, 1974), 70. [2] Gordon S. Wood, The Creation of the American

Republic: 1776-1787 (New York: Norton

Books, 1969), 18-28, 593-615. [3] In re Westchester County Medical Center, 72

N.Y.2d 517, 631 N.E.2d 607 (1988); Hydration

and Nutrition for Incompetent Patients Act,

Ok. Stat. Ann. sections 3080.1 et seq. (1987);

David Steen, "To Care or to Kill: The

Emerging Politics of Euthanasia," in The

Triumph of Hope, David Andrusko, ed.

(Washington, DC: National Right to Life

Committee, 1989), 171-204. [4] Edward Keyserlingk, Sanctity of Life or Quality

of Life (Ottawa: Law Reform Commission

of Canada, 1979), 50. [5] Jay Katz and Alexander Morgan Capron,

Catastrophic Diseases: Who Decides What? (New

Brunswick, NJ: Russell Sage, 1982); Ruth

Faden and Tom Beauchamp, A History and

Theory of Informed Consent (New York: Oxford

University Press, 1986), 152-99. [6] Nancy K. Rhoden, "Litigating Life and

Death," Harvard Law Review 102 (1988), 375-446. [7] Isaiah Berlin, "Two Concepts of Liberty" in

Four Essays on Liberty, Isaiah Berlin, ed. (New

York: Oxford, 1969), 118-72. [8] Faden and Beauchamp, A History and Theory

of Informed Consent, 39-43; Paul S. Applebaum,

C.W. Lidz, and A. Meisel, Informed

Consent (New York: Oxford University Press,

1987), 26-28; Jed Rubenfeld, "The Right of

Privacy," Harvard Law Review 102 (1989),

737-807, at 802-807. [9] Skinner v. Oklahoma, 316 U.S. 535 (1942). [10] Robert J. Lifton, The Nazi Doctors, (New York:

Basic Books, 1986), 46. [11] Guido Calabresi, Ideals, Beliefs, Attitudes, and

the Law (Syracuse, NY: Syracuse Press, 1985),

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Title Annotation:Nancy Cruzan's right to die case
Author:Scofield, Giles
Publication:The Hastings Center Report
Date:Jan 1, 1990
Previous Article:Choosing death for Nancy Cruzan.
Next Article:Can others exercise an incapacitated patient's right to die?

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