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Assuring ‘Detached but Passionate Investigation and Decision’: The Role of Guardians Ad Litem in Saikewicz-type Cases

Published online by Cambridge University Press:  24 February 2021

Charles H. Baron
Charles H. Baron*
Affiliation:
Boston College Law School
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Abstract

The author focuses this Article upon the aspect of the Saikewicz decision which determines that the kind of “proxy consent” question involved in that case requires for its decision “the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created.” This aspect of the decision has drawn much criticism from the medical community on the ground that it embroils what doctors believe to be a medical question in the adversarial processes of the court system. The author criticizes the decision from an entirely opposite perspective, arguing that the court's opinion fails in not laying down guidelines that would assure a truly adversary process in Saikewicz-type cases. He agrees with the Saikewicz court that our democratic institutional structure and societal commitment to individual liberty require that persons not competent to consent for themselves to acts of euthanasia be protected by a process of “detached but passionate investigation and decision.” However, he points out that this ideal of the court system was not realized in Saikewicz itself and is not likely to be realized in other cases without reform of some of the procedures currently being employed by the courts in “proxy consent” cases. Drawing on previous articles that he has written in related areas, he then proposes a set of guidelines that he believes not only will remove existing procedural deficiencies, but also may reform some aspects of the existing system that have drawn criticism from the medical community.

Type
Articles
Information
American Journal of Law & Medicine , Volume 4 , Issue 2 , Summer 1978 , pp. 111 - 130
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1978

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References

1 Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 2501, 370 N.E.2d 417, 435 (1977).

2 Although the case was argued July 2, 1976, and the Supreme Judicial Court issued its order affirming the decision of the Hampshire County Probate Court seven days later, the former court's opinion on the order and on related matters was not issued until November 28, 1977. The July 9 order merely answered in the affirmative the following questions that originally had been reported to the Appeals Court of Massachusetts:

  1. (1)

    (1) Does the Probate Court under its general or any special jurisdiction have the authority to order, in circumstances it deems appropriate, the withholding of medical treatment from a person even though such withholding of treatment might contribute to a shortening of the life of such person?

  2. (2)

    (2) On the facts reported in this case, is the Court correct in ordering that no treatment be administered to said Joseph Saiki'wicz now or at any time for his condition of acute myeloblastic monocetic [sic] leukemia except by further order of the Court?

Order of the Honorable Harry Jekanowski, Judge of the Hampshire County, Mass., Probate Court, May 13, 1976.

On the same day that the July 9 order was issued, the Department of the Attorney General of Massachusetts requested permission to file a supplemental brief that would discuss procedural guidelines for the handling of such cases in the future. The Supreme Judicial Court granted such permission on July 15, and supplementary briefs dealing with procedural guidelines were filed by the Department of the Attorney General, the Civil Rights and Liberties Division of the Department of the Attorney General, the Legal Counsel to the Department of Mental Health, the Massachusetts Association for Retarded Citizens, Inc., and the Mental Health Legal Advisors Committee of Massachusetts. Suggested procedural guidelines were also the subject of several law review articles that appeared before the court's opinion was rendered. See Brant, The Right to Die in Peace: Substituted Consent and the Mentally Incompetent, 11 Suffolk U. L. Rev. 959 (1977)Google Scholar; Kindregan, The Court as Forum for Life and Death Decisions: Reflections on Procedures for Substituted Consent, id. at 919 (1977); Schultz, Swartz, * Appelbaum, Deciding Right-to-Die Cases Involving Incompetent Patients: Jones v. Saikewicz, id. at 936 (1977).

While the controversy surrounding his case was beginning to build, Joseph Saikewicz died at 7:25 p.m. on Saturday, September 4, 1976, of bronchial pneumonia brought on by his leukemic condition.

3 In this respect, the decision is, as the court recognizes, directly contrary to the decision of the Supreme Court of New Jersey in In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), where the latter court stated:

The nature, extent and duration of care by societal standards is the responsibility of a physician. The morality and conscience of our society places this responsibility in the hands of the physician. What justification is there to remove it from the control of the medical profession and place it in the hands of the courts?

Id. at 44, 355 A.2d at 665.

[U]pon the concurrence of the guardian and family of Karen, should the responsible attending physicians conclude that there is no reasonable possibility of Karen's ever emerging from her present comatose condition to a cognitive, sapient state and that the life-support apparatus now being administered to Karen should be discontinued, they shall consult with the hospital “Ethics Committee” or like body of the institution in which Karen is then hospitalized. If that consultative body agrees that there is no reasonable possibility of Karen's ever emerging from her present comatose condition to a cognitive, sapient state, the present life-support system may be withdrawn and said action shall be without any civil or criminal liability therefor on the part of any participant, whether guardian, physician, hospital or others.

Id. at 55, 355 A.2d at 671 (footnote omitted).

The last-quoted sentence from the Quinlan opinion highlights what is desired from these cases by the medical community: legal insulation from civil and criminal liability for acts which will cause—indeed may be intended to cause—the death of a patient. What the Quinlan court has done is to grant such protection to all persons participating in such acts where there has been the sort of concurrence of opinion laid out by that court. (Note that the protection is granted only for certain acts, e.g., turning off the “life-support apparatus.” It is not granted for certain other acts, e.g., injecting a dose of a painless but lethal drug. As a result of this distinction, Karen Quinlan continues to exist in a comatose state.) In contrast, it is clear that the Saikewicz court has refused to make such a blanket grant of protection. Such protection, the court is saying, can come only through a judgment rendered by a court of law on the basis of the fully developed facts of each case.

Beyond that, however, the Saikewicz opinion raises more questions than it answers. It is possible to read the court as saying nothing more than that only the courts have the power to grant what is in essence declaratory relief. What the participants in these cases want is assurance that the acts that they wish to perform will not subject them to liability. A traditional method for gaining such assurance is for the persons who are fearful of liability to bring declaratory judgment action against the persons whom they fear as potential plaintiffs. If they obtain a declaratory judgment of nonliability, they may then perform the desired acts confident that they can raise an effective defense of res judicata in any later action brought by any of the parties to the action for declaratory relief. Under this reading, the court is not saying that failure to seek advance permission from a court makes the participants ipso facto liable for their acts of termination of care. It is not saying that advance court authorization is a necessary condition for avoiding liability, only that it is a sufficient condition.

However, another interpretation is possible. The Saikewkz court could be saying that, at least in some cases, terminating care for an incompetent without first getting court authorization in the form of “proxy consent” (the court or court-appointed guardian's “substituted judgment“), renders the participants liable ipso facto. Here the court would be saying that court authorization is a necessary condition for avoiding liability. Much of the case law regarding liability for decisions to treat incompetents rests on the theory that treatment without “proxy consent” is ipso facto a battery. See W. PROSSER, THE LAW OF TORTS 101-08 (4th ed. 1971). The Saikewicz case itself began as a routine request for “proxy consent” to treatment in order to avoid liability for battery. See notes 19-21 infra and accompanying text. And there are policy considerations that would favor this approach by the court in the area of decisions not to treat. Among them is the fact that there may be little motivation on the part of participants to go to court to obtain a declaratory judgment in a vast range of cases where there is no likely candidate to bring a subsequent suit for damages against the participants and where there is little likelihood of criminal prosecution. Hence, there would be no court supervision of the decision to terminate the life of the incompetent patient in some cases where that supervision might be thought crucial to proper protection of the interests of the patient.

It should be noted in passing that Saikewicz also does not deal with the question of whether there are classes of situations in which the courts should not allow participants to immunize themselves from liability in advance of action. Policies against allowing broad immunity to result from decisions that would have to be made without a full development of the facts, because of the emergency nature of the proceeding or for some other reason, might dictate against granting jurisdiction in some classes of cases. One author has suggested another reason for not allowing such jurisdiction in at least those cases that involve consent to causing the death of defective newborns:

The true enormity of these actions to withhold life from newborns, viewed from our contemporary perspective, will remain in high visibility only if advance social authorization is withheld, and only if the parents and physicians who wish to take this action are willing to accept some significant risk that they will suffer by such action. Their suffering will come in increasing intensity if criminal prosecution is instituted, if a jury finds them guilty of unconscionable conduct and if a judge imposes sanctions on them accordingly. In deciding whether to withhold treatment from the newborn, the parents and physicians will be led to balance the suffering imposed on them by the continued life of the child against the suffering likely from their decision to end the child's life.

This gives no guarantee that every newborn will be kept alive, no matter what. But choosing this social mechanism for regulating the decision to withhold treatment does guarantee that the decision-makers will have powerful incentive to favor the child's continuing life, to uphold what one court has called our felt intuition … [that even a blind, deaf and dumb infant] would almost surely choose life with defects as against no life at all. Some current proposals for law change call for child advocacy by an attorney, for example, appointed to present the newborn's perspective to a judge empowered to authorize withholding treatment. But no imaginable formal mechanism for child advocacy could so starkly press home directly on the decision-maker, as possible criminal liability, the proposition that ending the child's life may inflict unjustifiable suffering on him.

Burt, Authorizing Death for Anomalous Newborns, in ANNAS, G. * MILUNSKY, A. Genetics * The Law 435, 444 (1975)Google Scholar (footnote omitted).

Because of uncertainty as to the scope of the Saikewicz holding, counsel representing medical facilities in Massachusetts have advised their clients that the Saikewicz decision should be assumed to require judicial review in order to avoid liability in a wide range of cases involving patients who are not competent to consent to termination of medical assistance of a variety of types. As a result, new kinds of cases are being brought to the courts, including actions for “proxy consent” to termination of life support services not only for defective newborns and terminally ill comatose adults, but also for persons who meet most, but not quite all, of the Harvard brain death criteria. See Annas, After Saikewicz: No-Fault Death, HASTINGS CENTER REP., June 1978, at 16. Moreover, the spirit of Saikewicz stalks more entrenched sorts of actions such as those brought to obtain “proxy consent” to chemotherapy where the parents of the patient refuse consent, or to removal of a gangrenous foot where an arguably incompetent patient refuses consent, or to use of an experimental drug to treat a cancer where the mentally retarded patient cannot give an effective consent. In every such case, the potential relevance of Saikewicz now becomes an issue raised by counsel or the court. Most recently, the Saikewicz opinion has brought to the courts the question of whether court authorization is in any sense rquired before a “no-code” order can be placed on the chart of a comatose patient.

Against this fluid background, it is impossible to give a generally accepted definition to the term “Saikewicz-type cases” that is used in this Article. However, for purposes of this Article, it will be used very broadly to refer to any case in which a court is asked to provide “proxy consent” for an alleged incompetent to some act, or omission to act, on the ground that the act, or omission to act, is in the “best interest” of the incompetent.

4 Decisions from other jurisdictions recognizing a right to refuse life-prolonging or lifesaving treatment include Montgomery v. Board of Retirement, 33 Cal. 3d 447, 109 Cal. Rptr. 181 (Ct. App. 1973) (dictum); In re Osborne, 294 A.2d 372 (D.C. 1972); In re Estate of Brooks, 32 Ill. 2d 361, 205 N.E.2d 435 (1965); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976); Erickson v. Dilgard, 44 Misc. 2d 27, 252 N.Y.S.2d 705 (Sup. Ct. 1962); In re Raasch, No. 455-996 (Prob. Div., Milwaukee County Ct. Jan. 21, 1972).

5 These were recognized by the court to be “(1) the preservation of life; (2) the protection of the interests of innocent third parties; (3) the prevention of suicide; and (4) the maintenance of the ethical integrity of the medical profession.” 1977 Mass. Adv. Sh. at 2477, 370 N.E.2d at 425. The court stated that the first of these interests was the most important, but that it was lessened in significance in a case, such as Saikewicz, where the most that could be hoped for through treatment was mere “prolongation” of life. “There is a substantial distinction,” the court held, “in the State's insistence that human life be saved where the affliction is curable, as opposed to the State interest where, as here, the issue is not whether, but when, for how long, and at what cost to the individual that life may be briefly extended.” Id. at 2478, 370 N.E.2d at 425-26. As to the second interest, the court found that, on the facts of the case, it was not an issue, since Mr. Saikewicz had no dependents. The fourth state interest was also found to be no bar since

the prevailing ethical practice [in the medical profession] seems to be to recognize that the dying are more often in need of comfort than treatment. Recognition of the right to refuse necessary treatment in appropriate circumstances is consistent with existing medical mores; such a doctrine does not threaten either the integrity of the medical profession, the proper role of hospitals in caring for such patients or the State's interest in protecting the same.

Id. at 2480, 370 N.E.2d at 426-27. The third, and perhaps the most intriguing state interest, is consigned to a footnote:

The interest in protecting against suicide seems to require little if any discussion. In the case of the competent adult's refusing medical treatment such an act does not necessarily constitute suicide since (1) in refusing treatment the patient may not have the specific intent to die, and (2) even if he did, to the extent that the cause of death was from natural causes the patient did not set the death producing agent in motion with the intent of causing his own death. Furthermore, the underlying State interest in this area lies in the prevention of irrational self-destruction. What we consider here is a competent, rational decision to refuse treatment when death is inevitable and the treatment offers no hope of cure or preservation of life. There is no connection between the conduct here in issue and any State concern to prevent suicide.

Id. at 2480, n.l 1, 370 N.E.2d at 426, n.ll (references omitted).

6 The court bases its opinion in this regard upon “the unwritten constitutional right of privacy found in the penumbra of specific guarantees of the Bill of Rights,” id. at 2474-75, 370 N.E.2d at 424, and upon “implicit recognition in the law of the Commonwealth, as elsewhere, that a person has a strong interest in being free from nonconsensual invasion of his bodily integrity.” Id. at 2473, 370 N.E.2d at 424.

7 Here the choice, as the Supreme Judical Court found it be on the basis of the record, was between refusing treatment for leukemia, which would mean a relatively comfortable death within a period that might range from a few weeks to several months, and consenting to chemotherapy, which might prolong life for as much as 13 months or longer, but might shorten it and would have side effects including anemia, bleeding, infections, “severe nausea, bladder irritation, numbness and tingling of the extremities, and loss of hair.” Id. at 2466, 370 N.E.2d at 421. Despite the horrors thus painted of chemotherapy, however, “[i]t was the opinion of the guardian ad litem, as well as the doctors who testified before the probate judge, that most people elect to suffer the side effects of chemotherapy rather than allow their leukemia to run its natural course.“

Id. at 2466-67, 370 N.E.2d at 421.

8 Id. at 2482-83, 370 N.E.2d at 427.

9 “[T]he primary test is subjective in nature—that is, the goal is to determine with as much accuracy as possible the wants and needs of the individual involved.” Id. at 2489-90, 370 N.E.2d at 430 (footnote omitted). For a thoughtful discussion of this standard, see Robertson, Organ Donations by Incompetents and the Substituted Judgment Doctrine, 76 Colum. L. Rev. 48, 57-68 (1976)CrossRefGoogle Scholar.

It was in the subjective nature of the standard that the court found a basis for affirming the lower court's decision despite the lower court's fact finding that most people would elect chemotherapy in an objectively similar situation:

Evidence that most people choose to accept the rigors of chemotherapy has no bearing on the likely choice that Joseph Saikewicz would have made. Unlike most people, Saikewicz had no capacity to understand his present situation or his prognosis. The guardian ad litem gave expression to this important distinction in coming to grips with this “most troubling aspect” of withholding treatment from Saikewicz: “If he is treated with toxic drugs he will be involuntarily immersed in a state of painful suffering, the reason for which he will never understand. Patients who request treatment know the risk involved and can appreciate the painful side-effects when they arrive. They know the reason for the pain and their hope makes it tolerable.” To make a worthwhile comparison, one would have to ask whether a majority of people would choose chemotherapy if they were told merely that something outside their previous experience was going to be done to them, that this something would cause them pain and discomfort, that they would be removed to strange surroundings and possibly restrained for extended periods of time, and that the advantages of this course of action were measured by concepts of time and mortality beyond their ability to comprehend.

Id. at 2488-89, 370 N.E.2d at 430.

10 “The two factors considered by the probate judge to weigh in favor of administering chemotherapy were: (1) the fact that most people elect chemotherapy and (2) the chance of longer life…. With regard to the second factor, the chance of a longer life carries the same weight for Saikewicz as for any other person, the value of life under the law having no relation to intelligence or social position.” Id. at 2492-93, 370 N.E.2d at 431.

The sixth factor identified by the probate judge as weighing against chemotherapy was “the quality of life possible for him even if the treatment does bring about remission.” To the extent that this formulation equates the value of life with any measure of the quality of life, we firmly reject it. A reading of the entire record clearly reveals, however, the judge's concern that special care be taken to respect the dignity and worth of Saikewicz's life precisely because of his vulnerable position. The judge, as well as all the parties, were keenly aware that the supposed ability of Saikewicz, by virtue of his mental retardation, to appreciate or experience life had no place in the decision before them. Rather than reading the judge's formulation in a manner that demeans the value of the life of one who is mentally retarded, the vague, and perhaps ill-chosen, term “quality of life” should be understood as a reference to the continuing state of pain and disorientation precipitated by the chemotherapy treatment. Viewing the term in this manner, together with the other factors properly considered by the judge, we are satisfied that the decision to withhold treatment from Saikewicz was based on a regard for his actual interests and preferences and that the facts supported this decision.

Id. at 2494-95, 370 N.E.2d at 432.

11 Id. at 2496, 370 N.E.2d at 433.

12 These are also referred to as “optimum care committees,” “ad hoc committees,” and by other designations. (They also have been called “God-squads” due to the awesome nature of the issues with which they deal.) See generally Clinical Care Committee of the Massachusetts General Hospital, Optimum Care for Hopelessly III Patients, 295 New England J. Med. 362 (1976)CrossRefGoogle Scholar; Rabkin, Gillerman, * Rice, Orders Not To Resuscitate, id. at 364 (1976); Teel, The Physician's Dilemma, A Doctor's View: What the Law Should Be, 27 Baylor L. Rev. 6 (1975)Google Scholar.

Such committees frequently comprise not only physicians but also social workers, attorneys, and theologians, among others. While the ethics committee concept is not new, such committees have been developed recently by an increasing number of hospitals as forums for principled consideration of moral, legal, and ethical problems of medical practice, which are now being discussed more openly than previously. See generally Annas, In re Quinlan: Legal Comfort for Doctors, Hastings Center Rep., June 1976, at 29; Cantor, Quinlan, Privacy, and the Handling of Incompetent Dying Patients, 30 Rutgers L. Rev. 243, 255 (1977)Google Scholar; Collester, Death, Dying and the Law: A Prosecutorial View of the Quinlan Case, id. at 304, 319 (1977); Fried, Terminating Life Support: Out of the Closet! 295 New England J. Med. 390 (1976)CrossRefGoogle ScholarPubMed; Hirsch, * Donovan, The Right to Die: Medico-Legal Implications of In re Quinlan, 30 Rutgers L. Rev. 267, 273-86 (1977)Google Scholar; Veatch, Human Experimentation Committees: Professional or Representative﹜ Hastings Center Rep., October 1975, at 31.

While the Saikewicz decision refuses to confer upon such committees the power to insulate the medical community from liability that was granted in In re Quinlan, see note 3, supra, the court does recognize that they might play a helpful role in the decision-making process.

We note here that many health care institutions have developed medical ethics committees or panels to consider many of the issues touched on here. Consideration of the findings and advice of such groups as well as the testimony of the attending physicians and other medical experts ordinarily would be of great assistance to a probate judge faced with such a difficult decision. We believe it desirable for a judge to consider such views wherever available and useful to the court. We do not believe, however, that this option should be transformed by us into a required procedure. We take a dim view of any attempt to shift the ultimate decision-making responsibility away from the duly established courts of proper jurisdiction to any committee, panel or group, ad hoc or permanent.

Id. at 2499, 370 N.E.2d at 434.

13 Mass. Regs. Governing Practice of Medicine, Section 1.4p (1977) (emphasis added).

14 The present writer's experience in working with medical personnel in various medical facilities over the past few years (which includes a two-week stint as a volunteer “medicalethical consultant” at a chronic care hospital), confirms the fact that, until recently, such decisions were made by participants on the basis of standards that frequently were (1) not explicitly delineated or consistently worked out at any given time, (2) not consistently applied over time, (3) differed from participant to participant, and (4) took into consideration factors which the Supreme Judicial Court rejects as criteria in Saikewicz. Many of the doctors, nurses, and other medical personnel were well aware of these deficiencies in the decision-making system and have served as a motivating force in bringing the decision making “out of the closet” so that more consistent and just systems could be developed.

15 Relman, The Saikewicz Decision: Judges as Physicians, 298 New England J. Med. 508 (1978)CrossRefGoogle Scholar.

16 Id.

17 Curran, Law-Medicine Notes: The Saikewicz Decision, 298 New England J. Med. 499 (1978)CrossRefGoogle Scholar.

18 1977 Mass. Adv. Sh. at 2501, 370 N.E.2d at 435.

19 Conversation with Paul R. Rogers, Esq., Staff Attorney, Belchertown State School, March 7, 1978.

20 At the time of filing, the statute authorizing the appointment of temporary guardians, Mass. Gen. Laws Ann. ch. 201, § 14 (1958), seemed to omit authorization of the appointment of a temporary guardian for a mentally retarded person. The statute was amended to remedy that deficiency on August 9, 1976, when Chapter 277 of the Acts of 1976 was signed into law. Mass. Gen. Laws Ann. ch. 201, § 14 (Supp. 1978).

21 1977 Mass. Advl Sh. at 2461-62, 370 N.E.2d at 419.

22 1977 Mass. Adv. Sh. at 2462, 370 N.E.2d at 419.

23 In re Joseph Saikewicz, No. 45596, transcript of proceedings of May 13, 1976 (Mass. Probate Court, Hampshire County, May 13, 1976).

24 Id. at 20.

25 Id. at 22.

26 Id. at 21.

27 Id. at 28-29, 32-33.

28 Id. at 28.

29 Id. at 29.

30 Id. at 31.

31 Id. at 33. Apparently on the. basis of concern that court action would not give full immunity to the petitioners until the appeal period had expired unless quick appellate review were obtained within that period, counsel for petitioner requested that the case be reported to the appropriate appellate court. Id. at 29. Immediately upon issuing its order, the probate court did, in fact, report to the Massachusetts Appeals Court the two questions that appear in note 2, supra. Shortly thereafter, counsel for petitioner filed an application for direct appellate review by the Supreme Judicial Court, which was granted on June 14, 1976. At that point, the case took on an adversarial quality for the first time. The Department of the Attorney General filed with counsel for petitioner a brief that aggressively pressed the case for reversing the lower court and for giving chemotherapy to Mr. Saikewicz. Among other things, the brief attempted to introduce published reports of empirical studies that cast doubt on the probate court's finding that patients over 60 are less successfully treated by chemotherapy. The court rejected the invitation to consider the studies. “None of these authorities was brought to the consideration of the probate judge. We accept the judge's conclusion, based on the expert testimony before him and in accordance with substantial medical evidence, that the patient's age weighed against the successful administration of chemotherapy.” 1977 Mass. Adv. Sh. at 2466 n.4, 370 N.E.2d at 421 n.4. On behalf of appellee, a brief was filed by the guardian ad litem and an amicus curiae brief was filed by the Civil Rights and Liberties Division of the Department of the Attorney General. Other amicus curiae briefs were filed by the Mental Health Legal Advisors Committee, the Massachusetts Association for Retarded Citizens, Inc., and the Developmental Disabilities Law Project of the University of Maryland Law School.

32 Id. at 2497, 370 N.E.2d at 433 (statutory references omitted).

33 Id. The opinion actually uses the term “mentally retarded” rather than “incompetent.” However, read in the context of the paragraph in which it appears and the full opinion, the court cannot reasonably be taken to be suggesting that the question is merely one of mental retardation.

34 Id. at 2497-98, 370 N.E.2d at 433-34.

35 Baron, Botsford, * Cole, Live Organ and Tissue Transplants from Minor Donors in Massachusetts, 55 B.U.L. RF.V. 159 (1975)Google Scholar [hereinafter cited as Baron, Botsford, * Cole]. See also Baron, Voluntary Sterilization of the Mentally Retarded, in G. Annas * A. Milunsky, Genetics * The Law 267 (1975).

36 The briefs filed by the Department of the Attorney General and by the Civil Rights and Liberties Division of the Department of the Attorney General cite the article on the role of the guardian ad litem in assuring a true adversary process. However, the article is cited in the Saikewicz opinion for a different purpose only. 1977 Mass. Adv. Sh. at 2492, 370 N.E.2d at 431.

37 See Kingsbury v. Buckner, 134 U.S. 650 (1889); Rankin v. Schofield, 71 Ark. 168, 66 S.W. 197 (1902); Tyson v. Richardson, 103 Wis. 397, 79 N.W. 439 (1899).

38 Baron, Botsford, * Cole, supra note 35, at 182-86.

39 Report of the Joint Conference On Professional Responsibility of the Joint Conference of the American Bar Association and the Association of American Law Schools, 44 A.B.A.J. 1159, 1160 (1958)Google Scholar.

For a later empirical study that supports the Joint Conference Report, see J. Thibaut * L. Walker, Procedural Justice: A Psychological Analysis (1975). The authors’ conclusion is remarkably unequivocal:

It is perhaps the main rinding of the body of our research, therefore, that for litigation the class of procedures commonly called “adversary” is clearly superior.

Our suggestion that the adversary procedure is superior to other classes of procedure rests both on its operating capabilities and on subjective and normative appraisals of its performance. In Chapter 5 [of Procedural Justice] the adversary procedure exhibits a capacity to protect against erroneous decisions based on chance distributions of the immediately discovered facts. Advocates who encounter facts unfavorable to their side of the case are instigated to search diligently and persistently for more favorable evidence. In Chapter 6 the procedure has been shown effective in moderating preexisting bias among decision makers. The results reported there do indeed appear to support Fuller's (1961) claim that the adversary mode serves to combat a “tendency to judge too swiftly in terms of the familiar that which is not yet fully known.” In Chapter 7 the procedure is found able to correct potential distortions of judgment deriving from the temporal presentation of evidence. We conclude from this research that the adversary trial is remarkably well arranged to neutralize the ultimate effects of order and to insulate the decisionmaking process from this source of irrelevant influence. Indeed, paradoxical as it may seem, the very contentiousness of the adversary proceeding may exert a beneficial moderating influence on litigation.

With respect to appraisals of justice, the adversary procedure again appears to be superior. In the research reported in Chapter 8 the procedure has been judged fairest and most trustworthy both by persons subject to litigation and by those observing the proceedings. Moreover, the adversary procedure produces greater satisfaction with the judgment, regardless of the outcome of the case and regardless of the parties’ beliefs in their own guilt or innocence. In Chapter 9 a further assessment of some elements of adversary procedure has shown that each of the elements—separation of presentations, alignment of attorneys, and free choice of attorneys—contributes significantly and about equally to heightened satisfaction and judged fairness of the procedure. Chapters 8 and 9 have dealt with the impact of structural variations in procedure on rated satisfaction. In Chapter 10 structure has been held constant and the stylistic performance of roles has varied. The results in Chapter 10 have led us to conclude that as compared to structural variations stylistic differences are less potent determinants of satisfaction with procedures. Likewise, in Chapter 11 the adversary procedure fares well when tested by a normative standard of justice. Participants behind a “veil of ignorance” concerning their advantage or disadvantage in a subsequent trial express a conception of procedural fairness that is recognized uniquely in an adversary system.

Id. at 118.

40 Baron, Botsford, * Cole, supra note 35, at 183.

41 Id.

42 Id. at 186.

43 One judge of the Suffolk County Probate Court regularly appoints two guardians ad litem in cases where the donee, as well as the donor, is a minor.

44 For a case outside Massachusetts in which advocacy by a guardian ad litem developed a record upon which a court felt compelled to refuse to sanction donation of a kidney by a mentally retarded sibling, see In re Pescinski, 67 Wis. 2d 4, 226 N.W.2d 180 (1975).

45 Baron, Botsford, * Cole, supra note 35, at 163 nn.19 * 20.

46 Nathan v. Farinelli, Suffolk Eq. 74-87 and Nathan v. Flanagan, Suffolk Civil No. J 74-109.

47 Interview with James R. DeGiacomo, Jr., Esq., in Boston, March 17, 1978.

48 1977 Mass. Adv. Sh. 2494, 370 N.E.2d 432. See note 10 supra.

49 That none of these factors are to be permitted as criteria is a necessary implication of the court's commitment to the “substituted judgment” test. Such factors clearly would not justify termination of life-prolonging treatment for a patient who was competent and refused to consent to termination. They cannot, therefore, justify termination where an incompetent's “substituted judgment” comes out opposed to termination.

50 1977 Mass. Adv. Sh. 2497-98, 370 N.E.2d 433 (case reference omitted).

51 Id. at 2495-96, 370 N.E.2d 433 (statutory reference omitted).

52 Id. at 2496, 370 N.E.2d 433.

53 Lynde v. Vose, 326 Mass. 621, 96 N.E.2d 172 (1951); Buckingham v. Alden, 315 Mass. 383, 53 N.E.2d 101 (1944).

54 Baron, Botsford, * Cole, supra note 35, at 181.

55 1977 Mass. Adv. Sh. 2498, 370 N.E.2d at 433.

56 Interview with Paul Resnick, Esq., March 10, 1978.

57 Interview with James R. DeGiacomo, Jr., Esq., March 17, 1978.

58 Id. and Interview with Beverly W. Boorstein, Esq., May 2, 1978.

59 1977 Mass. Adv. Sh. 2498, 370 N.E.2d at 433-34.

60 Id. at 2482-83, 370 N.E.2d at 427.

61 Interview with Ronald Schramm, Esq., and Daniel Roble, Esq., March 24, 1978.

62 1977 Mass. Adv. Sh. 2498, 370 N.E.2d at 433.

63 The establishment of such a corps of guardians ad litem was discussed at a statewide Judicial Conference of Massachusetts Probate Court Judges held at Framingham, Massachusetts, on March 31, 1978. The principal topic of the Conference was the Saikewicz decision and the challenges it presented to the probate court. The idea of establishing a specialized panel of guardians ad litem to assist the court in handling Saikewicz-type cases was well received by the judges present. It was well received also by members of the medical community who attended the Conference.

Since the Conference, Chief Judge Podolski has encouraged the development of a list of attorneys who are willing and able to serve in such a capacity, which he will distribute to the probate court judges.

64 In those cases where suit need not be brought to avoid liability but only to obtain declaratory relief, see note 3, supra, it may become clear that certain fact patterns no longer raise the risk of a successful suit on the merits, thus eliminating the motive for bringing those cases to court for what is essentially a declaratory judgment. The “brain death” cases provide a good example of candidates for this sort of treatment. On August 26, 1977, the Supreme Judicial Court adopted a version of the Harvard “brain death” criteria for purposes of establishing the death of a victim in a criminal case. Commonwealth v. Golston, 1977 Mass. Adv. Sh. 1778, 366 N.E.2d 744. Because Golston was a criminal case, some medical personnel and their counsel have been concerned about potential civil liability in situations where they terminate life support treatment for patients who are dead by the Harvard criteria but not by more traditional criteria. There is even more widespread concern about terminating such support where most, but not all, of the technical “brain death” criteria have been met. As a result of these uncertainties, medical personnel and relatives who would be participants in terminating supportive services for “brain dead” patients have brought petitions to probate court seeking court authorization for termination. Since these suits result from uncertainty regarding the precise limits of the law, there is likely to be no need to bring them as it becomes clear that certain fact patterns fall within or without them. Where it is clear in advance that certain acts do not give rise to liability, it would be a waste of court time and taxpayers’ money to go through the ritual of obtaining a court declaration of nonliability.