Hostname: page-component-7479d7b7d-68ccn Total loading time: 0 Render date: 2024-07-13T11:19:30.589Z Has data issue: false hasContentIssue false
  • English
  • Français

Advance Directives: Where are We Heading after Cruzan?

Published online by Cambridge University Press:  29 April 2021

Fenella Rouse
Get access Rights & Permissions [Opens in a new window]

Extract

On June 25, 1990 the U.S. Supreme Court ruled for the first time in a right to refuse medical treatment case. The court's holding (by a majority of five of the nine justices) was essentially as follows: The right to liberty, which is explicitly mentioned in the Constitution, encompasses a person's decision to reject life-sustaining treatment; competent people are entitled to reject life-support and states are therefore prohibited from preventing people from making that choice. States may, however, regulate the exercise of the right, to ensure that the decision to stop treatment is indeed what the patient would have wanted. Asking for “clear and convincing evidence” of an incompetent patient's wishes (which means a demonstration that the person herself deliberately and thoughtfully made the decision in advance, or perhaps formally appointed someone else to make that decision for her) is a legitimate form of regulation by the state: It furthers the quest for what the person would have wanted and protects incompetent individuals from decisions made by others which might be influenced by the others’ interest instead of being based solely on what the individual would have wanted.

Type
Article
Information
Law, Medicine and Healthcare , Volume 18 , Issue 4 , Winter 1990 , pp. 353 - 359
Copyright
Copyright © 1990 American Society of Law, Medicine & Ethics

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

Cruzan v. Director, Missouri Department of Health, et al., No. 88-1503 (U.S. June 25, 1990).Google Scholar
Scalia did not agree that the Constitution was implicated and joined with the majority only to hold that states could require “clear and convincing evidence.” The four dissenters, however, clearly found a constitutional right so that eight of the nine justices agreed that the right to refuse treatment was constitutionally protected.Google Scholar
Cruzan v. Director, Missouri Department of Health, et al., No. 88-1503, slip op. at 16 (U.S. June 25, 1990) (Brennan, J., dissenting).Google Scholar
Cruzan v. Director, Missouri Department of Health, et al., No. 88-1503, slip op. at 17 (U.S. June 25, 1990) (Brennan, J., dissenting).Google Scholar
Cruzan v. Director, Missouri Department of Health, et al., No. 88-1503, slip op. at 2 (U.S. June 25, 1990) (Stevens, J., dissenting).Google Scholar
Cruzan v. Director, Missouri Department of Health, et al, No. 88-1503, slip op. at 8 (U.S. June 25, 1990) (Scalia, J., concurring).Google Scholar
Cruzan v. Director, Missouri Department of Health, et al., No. 88-1503, slip op. at 15 (U.S. June 25, 1990).Google Scholar
Cruzan v. Director, Missouri Department of Health, et al., No. 88-1503, slip op. at 3, 5 (U.S. June 25, 1990) (O'Connor, J., Concurring), echoing majority, slip op. at 22–24 n.12.Google Scholar
Cruzan v. Director, Missouri Department of Health, et al., No. 88-1503, slip op. at 1 (U.S. June 25, 1990) (O'Connor, J., concurring).Google Scholar
Cruzan v. Director, Missouri Department of Health, et al., No. 88-1503, slip op. at 3 (U.S. June 25, 1990) (O'Connor, J., concurring).Google Scholar
In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987); In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 50 L. Ed. 2d 289, 97 S. Ct. 319 (1976), diverged in part, In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985).Google Scholar
Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 497 N.E. 2d 289, 97 S. Ct. 319 (1976), diverged in part, In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985).Google Scholar
In re Conservatorship of Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840 (CT. App. 1988), cert. denied, 102 L. Ed. 2d 387, 109 S. Ct. 399 (1988), rehearing denied, 102 L. Ed. 2d 816, 109 S. Ct. 828 (1989); Brophy v. Jobes, 398 Mass. 417, 497 N.E. 2d 626 (1986); In re Jobes, 210 N.J. Super. 543, 510 A.2d 133 (Super. Ct. Ch. Div.), review denied (N.J. March 10, 1986).Google Scholar
Arkansas Rights of the Terminally Ill or Permanently Unconscious Act, Ark. Code Ann.20-17-201 to -218 (Supp.1987); Maine Uniform Rights of the Terminally Ill Act, Me. Rev. Stat. Ann. tit. 18a, 5–701 to -714 (H.B. 1497 signed April 17, 1990); Texas Natural Death Act, Tex. Rev. Civ. Stat. Ann. art. 4590h (Vernon Supp. 1989); Virginia Act, Va. Code 37.1–134.4. See also, Connecticut Removal of Life Support Systems Act, Conn. General Stat. 19a-571; Florida Life Prolonging Procedure Act, Fla. Stat. Ann. 765.07; Iowa Life Sustaining Procedures Act, Iowa Code Ann. @4,6 144a.7; 40:1299.58.5; New Mexico Right to Die Act, N.M. Stat. Ann. 24-7-8.1; North Carolina Right to Natural Death Act, Or. Rev. Stat. 97.083; Utah Personal Choice and Living Will Act, Utah Code Ann. 75-2-1105(2); Virginia Natural Death Act, Va Code 54:1–2986; District of Columbia Health-Care Decisions Act, D.C. Code Ann. 21–2210.Google Scholar
Cruzan v. Director, Missouri Department of Health, et al., No. 88-1503, slip op. at 16 (U.S. June 25, 1990).Google Scholar
Wanzer, et al., “The Physician's Resposibility Toward hopelessly Ill Patients,” 310 New Eng. J. Med. 955, 957 (1984).Google Scholar
Cruzan v. Harmon, 760 W.W.2d 408, 417 (Mo. 1988).Google Scholar
See, e.g., D. McCormick, McCormick's Handbook of the Law of Evidence, 796 (1972).Google Scholar
In re Storar, 52 N.Y. 2d 363, 372, 420 N.E.2d 64, 68, 438 N.Y.S.2d 266, 270, cert. denied, 454 U.S. 858 (1981).Google Scholar
Delio v. Westchester County Medical Center, 129 A.D.2d 1, 516 N.Y.S.2d 677 (2d Dep't 1987).Google Scholar
Delio v. Westchester County Medical Center, 129 A.D.2d 1, 9, 516 N.Y.S.2d 677, 683 (2d Dep't 1987).Google Scholar
Elbaum v. Grace Plaza of Great Neck, 148 A.D.2d 244, 250–51, 544 N.Y.S.2d 840, 844 (2d Dep't 1989).Google Scholar
In re Westchester County Medical Center, 72 N. Y.2d 517, 526- 27, 531 N.E.2d 607, 614, 534 N.Y.S.2d 886, 893 (1988).Google Scholar
In re Westchester County Medical Center, 72 N.Y.2d 517, 532, 531 N.E.2d 607, 614, 534 N.Y.S.2d 886, 893 (1988).Google Scholar
In re Westchester County Medical Center, 72 N.Y.2d 517, 532, 531 N.E.2d 607, 614, 534 N.Y.S.2d 886, 893 (1988).Google Scholar
The O'Connor court stated that the exact nature of the patient's condition was not “dispositive” but was merely “another element to be considered in the context of determining whether her pronouncement made on some previous occasion bears relevance to her present condition” In re Westchester County Medical Center, 72 N.Y.2d 517, 533, 531 N.E.2d 607, 614, 534 N.Y.S.2d 886, 893 (1988). See also, Miles, & August, , “Courts, Gender and the ‘Right to Die,’” 18 L., Med. & Health Care 85 (Spring-Summer 1990).Google Scholar
Elbaum v. Grace Plaza of Great Neck, No. 8892/88 (N.Y. Sup. Ct. Nassau County March 10, 1989) (McCabe, J.); N.Y.L.J. March 16, 1989, at 26, col.6.Google Scholar
Elbaum v. Grace Plaza of Great Neck, 148 A.D.2d 244, 544 N.Y.S. 2d 840 (2d Dep't 1989).Google Scholar
In re Westchester County Medical Center, 72 N.Y.2d 517, 531–32, 531 N.E.2d 607, 614, 534 N.Y.S.2d 886, 893 (1988).Google Scholar
Cruzan v. Director, Missouri Department of Health, et al., No. 88-1503, slip op. at 19 (U.S. June 25, 1990).Google Scholar
Emanuel, & Emanuel, , “The Medical Directive: A New Comprehensive Advance Care Document,” 261 J.A.M.A. 3288 (1989). See also, In re Guardianship of Browning, 543 So. 2d 258 (Fla. Dist. Ct. App.), clarified, No. 88-02887 (Dist. Ct. App. May 3, 1989) in which Estelle Browning completed a document which she believed would “take care” of everything. After she was diagnosed as incompetent, but not in a “terminal condition,” the trial court ruled that tube feeding could not be ended although all who knew her agreed that she would not want it, because the Living Will she had executed was based on the Florida Life-Prolonging Procedure Act which applied only to “terminal” patients as defined in the Act. In re Guardianship of Browning, No. 87-1176-GD (Fla. Cir. Ct. Pinellas County Oct.12, 1988) (Penick, J.). The case is now pending before the Florida Supreme Court.Google ScholarPubMed
See e.g., McCrary, , et al., “Hospital Policy on Advance Directives,” 262 J.A.M.A. 2411 (1989); Mitric, “Americans Speak Out on Right-to-Die Issues,” Maturity News Service (June 4, 1990); Times Mirror Center for the People and the Press, The Right to Die (1990).Google ScholarPubMed
See, Cruzan v. Director, Missouri Department of Health, et al, No. 88-1503, slip op. at 16 (U.S. June 25, 1990) (Brennan, J., dissenting).Google Scholar
Vital Statistics of New York State, Annual Report (1987)Google Scholar
Cruzan v. Director, Missouri Department of Health, et al., No. 88-1503, slip op. at 3 (U.S. June 25, 1990) (Brennan, J., dissenting).Google Scholar
See, e.g., In re Estate of Greenspan, No. 67903 (Ill. Sup. Ct. July 9, 1990).Google Scholar
Health Care Agents and Proxies Act, S.B. 6176-A (signed July 22, 1990).Google Scholar
New York Times, July 2, 1990, at A1, col. 1, B4, col.3.Google Scholar
E.g., Arkansas Rights of the Terminally Ill or Permanently Unconscious Act, Ark Code Ann. 20-17-201 to -218 (Supp. 1987); Idaho Death Act, Idaho Code 39–4501 to -4509 (1985 & Supp. 1989); Texas Natural Death Act, Tex.Rev. Civ. Stat. Ann. art 4590h (Vernon Supp. 1989).Google Scholar
E.g., Colorado Medical Treatment Decisions Act, Colo. Rev. Stat. 15-18-101 to -113 (1987); Florida Life-Prolonging Procedure Act, Fla. Stat. Ann. 765.01 to -.15 (H.513 Enacted without Governor's signature June 30, 1990); Illinois Living Will Act, Ill. Ann. Stat. ch. 110 1/2, 701 to 710 (Smith-Hurd Supp. 1989); Oklahoma Natural Death Act, Okla. Stat. Ann. tit. 63, 2980 to 2994 (S.B. 6167-A signed July 22, 1990).Google Scholar
E.g., District of Columbia Health-Care Decisions Act, D.C. Code Ann. 21–2201 to 2213 (1989); Georgia Durable Power of Attorney for Health Care Act, Ga. Code 31-36-1 to -36 (H.B. 999 signed April 11, 1990); New York Health Care Agents and Proxies Act, N.Y. Pub. Health Law 2980 to 2994 (S.B. 6167-A signed July 22, 1990).Google Scholar
E.g., Ohio Power of Attorney Act, Ohio Rev. Code Ann. 1337.11 to -.17 (Anderson 1989).Google Scholar
Oklahoma Hydration and Nutrition for Incompetent Patients Act, Okla. Stat. Ann. tit. 63, 3080.1 to -.5 (West Supp. 1988).Google Scholar
Oklahoma Natural Death Act, Okla. Stat. Ann. tit. 63 3101 to 3111 (H.B. 1482 signed May 25, 1990).Google Scholar
See e.g., Arizona Medical Treatment Decisions Act, Ariz. Rev. Stat. Ann. 36–3201 to -3210 (1986); Hawaii Medical Treatment Decisions Act, Hawaii Rev. Stat. 327D-1 to -27 (Supp. 1988); Indiana Living Wills and Life-Prolonging Procedures Act, Ind. Code Ann. 16-8-11-1 to -22 (Burns Supp. 1989); Iowa Life-sustaining Procedures Act, Iowa Code Ann. 144A.1 to .11 (1989); Maryland Life-Sustaing Procedures Act, Md. Health-General Code Ann. 5–601 to -614 (Supp. 1988); New Hampshire Terminal Care Document Act, N.H. Rev. Stat. Ann. 137-H:1 to -H:16 (Supp. 1988); South Carolina Death with Dignity Act, S.C. Code Ann. 44-77-10 to -160 (Law Co-op Supp. 1988); Utah Personal Choice and Living Will Act, Utah Code Ann 75-2-1101 to -1118 (Supp. 1988); West Virginia Natural Death Act, W. Va. Code 16-30-1 to -10 (1985); Wyoming Act, Wyo. Stat. 33-22-101 to -109 (1988).Google Scholar
A number of statutes state they do not restrict or alter existing law. e.g., Florida Life-Prolonging Procedure Act, Fla. Stat. Ann 765.01 to -.15 (1986); Maine Uniform Rights of the Terminally Ill Act, Me. Rev. Stat. Ann. tit. 18a, 5–701 to -714 (H.B. 1497 signed April 17, 1990); Wisconsin Natural Death Act, Wisc. Stat. Ann. 154.01 to -.15 (West 1989).Google Scholar
E.g., North Dakota Uniform Rights of the Terminally Ill Act, N.D. Cent. Code 23–06.4–01 to -14 (Supp. 1989).Google Scholar
E.g., The Connecticut act defines “life support systems” to mean “any mechanical or electronic device, excluding the provision of nutrition and hydration,… which prolongs the dying process,” Connecticut Removal of Life Support Systems Acct, Conn. Gen. Stat. 19a-570 (Supp. 1989). The Connecticut Supreme Court interpreted this language to mean that “there is no logical distinction between removal of a respirator and removal of a gastrostomy tube,” but “it does not, under any circumstances, permit the withholding of normal nutritional aids such as a spoon or a straw” McConnell v. Beverly Enterprises, 209 Conn. 692, 705, 553 A.2d 596, 603 (1989).Google Scholar
Conversation with the author, reported in Society for the Right to Die, Newsletter, at 4, col. 1, (Spring 1990)Google Scholar
See, e.g., In re Westchester County Medical Center, 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886 (1988); Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988); In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987); In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266, cert. denied, 454 U.S. 858 (1981).Google Scholar
Presidents Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment (1983).Google Scholar
The Uniform Rights of the Terminally Ill Act 1–18, 9A U.L.A. 456 (Supp. 1990) has expansive definitions and practical procedures and is the best model legislation currently availabe.Google Scholar
Cruzan v. Director, Missouri Department of Health, et al., No. 88-1503, slip op. at 15 (U.S. June 25, 1990) (Stevens, J., dissenting).Google Scholar
Cruzan v. Director, Missouri Department of Health, et al., No.88–1501, slip op. at 14 (U.S. June 25, 1990) (Stevens, J., dissenting).Google Scholar
Cruzan v. Harmon, 760 S.W.2d 408, 412 (Mo. 1988)Google Scholar