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Judicial Intervention

There are two important caveats to nonjudicially supervised termination of life-support decisions. The first, and more critical, is that the patient must be a competent adult at the time the decision is made. The second is that the patient must clearly state his or her intentions, and these must be properly documented. Unless required by state law, this documentation need not be a witnessed living will. It can be a properly recorded conversation with the physician or the written request by a patient-appointed surrogate. The termination of life-support for minors, long-term medically incompetent patients, and patients who have not made their wishes known while competent are more complex and generally require the intervention of a judicially appointed guardian.

The most compelling cases for judicial intervention are those in which a patient who refuses curative therapy has dependent family members. These are almost exclusively persons with religious objections to some or all medical care. This may be because refusing curative treatment without a religious rationale results in the patient's being treated as an incompetent. While courts have ordered treatment in some cases, the most recent case law, in the decision of Fosmire v. Nicoleau,[74] affirmed the right of a pregnant woman to refuse blood transfusions despite the risk to her fetus:

In sum, the patient as a competent adult, had a right to determine the course of her own treatment, which included the right to decline blood transfusions, and there is no showing that the State had a superior interest, in preventing her from exercising that right under the circumstances of this case.[75]

Cases such as Fosmire are ethically the most difficult to resolve. The case is brought on behalf of family members, usually minor children, who depend on the patient. If the necessary treatment is forced on the patient, the patient will recover and the issue will be resolved. The appellate judges in Fosmire had the luxury of upholding the patient's autonomy without having blood on their own hands: the trial court's order to give blood had been carried out immediately. The appeal sought only to second-guess its validity.

Physicians in a case like Fosmire would properly question whether it would be ethical, although legal, to stand by and not seek a court order to force treatment. Societal interest in the well-being of the dependents would also favor intervention. The trial court's ordering of the treatment might offend some people, but it would not shock the conscience of members of the general public. It is cases such as this that fuel ethical debates, yet these cases have little to do with termination of life-support issues.

Termination of life-support cases, in general, do not involve the refusal of curative therapy. If a competent adult refuses curative life support for religious reasons, these cases should be treated separately from the termination of noncurative life support. It is legally permissible to comply with such requests without legal process. It is ethically questionable, however, to accept a refusal of curative therapy without using judicial process at least to verify the sincerity of the request. In extreme situations, the patient's request is tantamount to a request for assistance in committing suicide.[76]

[74]Fosmire v. Nicoleau. 551 NE2d 77 (NY 1990).

[75]Fosmire v. Nicoleau. 551 NE2d 77 (NY 1990), p. 84.

[76]Kane EI: Keeping Elizabeth Bouvia alive for the public good. Hast Cent Rep 1985; 15(6):5.

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