Hostname: page-component-7bb8b95d7b-s9k8s Total loading time: 0 Render date: 2024-09-13T15:12:59.287Z Has data issue: false hasContentIssue false
  • English
  • Français

Medical Paternalism or Legal Imperialism: Not the Only Alternatives for Handling Saikewicz-type Cases

Published online by Cambridge University Press:  24 February 2021

Allen Buchanan
Allen Buchanan*
Affiliation:
University of Minnesota
Get access Rights & Permissions [Opens in a new window]

Abstract

In 1977, the Supreme Judicial Court of Massachusetts held in the Saikewicz case that the probate court is the proper tribunal for making decisions whether to give or to withhold “life-prolonging treatment” for terminally ill incompetent patients. This ruling provoked debate in the medical and legal communities. Dr. Arnold Relman, Editor of The New England Journal of Medicine, argues that Saikewicz encroaches on existing sound medical practice and requires decision-making machinery that is impractical and inhumane. Relman contends that treatment decisions for terminally ill incompetents in Saikewicz-type cases should be made by the physician in consultation with the patient's family. Law professor Charles Baron, in contrast, defends Saikewicz's judicialization approach, arguing that such decisions must be made in an adversary framework that approximates the ideal of the rule of law.

In the present Article, Professor Buchanan argues that Relman's criticism of Saikewicz rests on a defective, medical paternalist view of the physician-patient relationship, and that Baron's support of Saikewicz is based on an unjustifiable, legal imperialist view of decision making for incompetents. In Buchanan's view, Relman's approach fails to distinguish appropriately between the making of medical judgments and the making of moral judgments and wrongly assumes that the patient's family typically cannot understand the elements of the decision, while Baron's approach unjustifiably extends the sphere of the legal process by ignoring the special moral relationship that usually exists between the family and its incompetent member.

Buchanan proposes an alternative decision-making approach that he believes incorporates the merits, while remedying the defects, of both Baron's and Relman's approaches. The alternative is based on three propositions. (1) The proper presumption in Saikewicz-type cases is that the family of an incompetent is to make decisions concerning treatment. (2) This presumption of the family's dominant role in decision making is defeasible: protection of the patient's rights requires that decisions be made within a framework that allows vigorous discussion and accountability through impartial review and that provides for legal intervention when necessary. (3) The institutional framework for implementing the features listed in the preceding proposition will rely heavily upon an ethics committee that is neither an all-medical prognosis committee nor an administrative agency of the hospital.

Besides evaluating and responding to the Relman and Baron approaches, Buchanan examines the contribution to the Saikewicz debate made by law-and-medicine professor George Annas. In essence, Buchanan rejects Annas's argument that, taken together, the Saikewicz opinion and the Quinlan opinion of the Supreme Court of New Jersey delineate a proper division of medical and legal decision-making responsibility concerning terminally ill incompetents. Buchanan concludes that, contrary to Annas's view, those two cases are not reconcilable.

Type
Articles
Information
American Journal of Law & Medicine , Volume 5 , Issue 2 , Summer 1979 , pp. 97 - 117
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1979

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Superintendent of Belchertown State School v. Saikewicz, 1977 Mass. Adv. Sh. 2461, 2495, 370 N.E.2d 417, 432 (1977) (footnote omitted).

2 Id. at 2496-99, 370 N.E.2d at 432-34.

3 In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976).

4 Relman, The Saikewicz Decision: Judges as Physicians, 298 New England J. Med. 508 (1978)CrossRefGoogle Scholar [hereinafter cited as Relman, Judges as Physicians]; Relman, The Saikewicz Decision: A Medical Viewpoint, 4 Am. J. L. & Med. 233 (1978)Google Scholar [hereinafter cited as Relman, A Medical Viewpoint].

5 Baron, Assuring “Detached but Passionate Investigation and Decision“: The Role of Guardians Ad Litem in Saikewicz-type Cases, 4 Am. J . L. & Med. 111 (1978)Google Scholar [hereinafter cited as Baron, Guardians Ad Litem]; Baron, Medical Paternalism and the Rule of Law: A Reply to Dr. Relman, 4 Am. J. L. & Med. 337(1979)Google Scholar [hereinafter cited as Baron, The Rule of Law]. In his first Article, Baron defends the Saikewicz ruling, while arguing that the court did not go far enough in developing an adversary-proceeding approach for Saikewicz-type cases. In the second, he elaborates his defense of the judicialization approach by articulating the ideal of the rule of law on which it is founded.

6 Annas, Reconciling Quinlan and Saikewicz: Decision Making for the Terminally Ill Incompetent, 4 Am. J. L. & Med. 367 (1979)Google Scholar [hereinafter cited as Annas, Reconciling Quinlan and Saikewicz].

7 Relman, A Medical Viewpoint, supra note 4, at 236.

8 Buchanan, Medical Paternalism, 7 Philosophy & Public Affairs 370 (1978)Google Scholar.

9 Relman, A Medical Viewpoint, supra note 4, at 237.

10 For a more detailed criticism of arguments in defense of medical paternalism, see Buchanan, Medical Paternalism, supra note 8.

11 Relman, A Medical Viewpoint, supra note 4, at 235.

12 Among the pertinent language in the Saikewicz opinion concerning the quality-of-life issue is the following:

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.

1977 Mass. Adv. Sh. 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. See, in addition, the language quoted in the text accompanying note 15 infra.

13 Relman gives the following account:

A previously healthy 12-year-old boy was accidently shot through the heart and was brought to a community hospital emergency room in an apparently lifeless state. After intensive resuscitative efforts, his heart action was restored but his respiration had to be maintained by a breathing machine. He never regained consciousness, and subsequent tests indicated beyond any reasonable doubt that his cerebral cortex (the part of the brain responsible for all conscious behavior) had been irreversibly damaged. However, some of the functions of the lower part of his brain evidently were still preserved, as indicated by the persistence of some primitive reflex movements. He had no brainwave activity on the electro-encephalogram and had complete loss of circulation to his cerebrum, but because of his reflex movements he did not meet the “Harvard” criteria for brain death and thus, under Massachusetts law, could not be declared legally dead. Therefore, the petition of the hospital authorities for permission to withdraw life support was denied.

Although medical witnesses testified that there was no possibility of the boy's ever regaining consciousness, he conceivably could have been kept alive indefinitely and so, regardless of the quality of life being preserved, the probate judge felt constrained by law [that is, by the Saikewicz ruling] to order that the intensive care be continued.

Relman, A Medical Viewpoint, supra note 4, at 239.

14 Relman clearly is disturbed by Saikewicz on the quality-of-life point, but the nature of his disagreement is not altogether clear. Either his point is that the procedures set forth by the Massachusetts Supreme Judicial Court's written opinion, as one version of the judicialization approach to decisions for terminally ill incompetents, excluded a consideration that ought to have been taken into account, or his point is that any judicialization approach to such decisions fails to include quality-of-life considerations. If the former interpretation were correct, then Relman's point could in no way serve as an objection against judicialization approaches in general, but rather only as a criticism of one particular model for judicialization, namely, the one set forth by the Supreme Judicial Court of Massachusetts in Saikewicz. He still would have to show that the exclusion of quality-of-life judgments is an essential feature of any judicialization approach. The more interesting interpretation is that not only the procedures laid down by the supreme judicial court in Saikewicz as a particular version of the judicialization approach, but any judicialization approach as such, necessarily excludes quality-of-life judgments, though these judgments are sometimes morally crucial.

15 1977 Mass. Adv. Sh. at 2492, 370 N.E.2d at 432.

16 Id. at 2492-95, 370 N.E.2d at 432. See note 12 supra and the quoted material in the text accompanying note 15 supra for pertinent language of the court.

17 The issue of whether interpersonal worth comparisons are to be wholly excluded from life or death decisions for incompetents is complex and requires more consideration than can be given it in this essay. It should be emphasized, however, that anyone who asserts that the social value of an incompetent should determine whether he or she lives or dies must be prepared either to defend the general principle that social worth comparisons are legitimate grounds for withholding or providing treatment or to show why this factor is legitimate in the special case of incompetents. It might be argued that, since medical resources are scarce goods, social utility must be taken into account in determining how these resources are to be allocated. However, even if this is true, it does not follow that the individual provider of medical services should decide whether to treat this particular person on the basis of the provider's estimate of that person's social worth. Similarly, even if it were true that the. system of criminal law should be designed so as to maximize social utility, it would not follow that judges are to decide particular cases according to their estimates of the comparative utility of rendering one decision as opposed to another (although they apparently often do so). The severe abuses— indeed the disutilities—of such a procedure are obvious.

18 Baron, The Rule of Law, supra note 5.

19 Id. at 357-62.

20 In its discussion setting forth the holding that the probate court is the proper tribunal for decision making in Saikewicz-type cases, the supreme judicial court notes that the medical situation involving Joseph Saikewicz had not required an immediate decision concerning whether to provide treatment. 1977 Mass. Adv. Sh. at 2497, 370 N.E.2d at 433. In other words, probably nothing significant was lost in a medical sense by taking the time to obtain a probate court decision. In this light, it could be argued reasonably that the supreme judicial court never intended to require probate court involvement in situations requiring an immediate decision, although other interpretations are possible. The discussion in the above text of the relationship between the Saikewicz holding and the need for immediate decisions in certain medical contexts should be read with the existing uncertainty on this point in mind.

21 Baron, The Rule of Law, supra note 5, at 362.

22 Id. at 347.

23 Id. at 347-48.

24 Id. at 348 (footnote omitted).

25 Id. at 348.

26 Id. at 349.

27 Id. at 349-50.

28 For an examination of the importance of the attitude of critical revisability in both theoretical and practical reasoning, see Buchanan, Revisability and Rational Choice, 5 Canadian J. Philosophy 395 (1975)CrossRefGoogle Scholar.

29 Relman, A Medical Viewpoint, supra note 4, at 234, 236-37.

30 Id. at 234.

31 Id. at 240.

32 Pius, XII The Prolongation of Life, in Ethics in Medicine 501 (Reiser, S. J. Dyck, A. & Curran, W. eds. 1977)Google Scholar.

33 Buchanan, Medical Paternalism, supra note 8, at 389-90.

34 Annas, Reconciling Quinlan and Saikewicz, supra note 6.

35 Id. at 371.

36 Id. at 367.

37 Id.

38 Id. at 378.

39 Id. at 378-79.

40 Id. at 384.