Consent and Informed Consent

Guide to: Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990)

How was she found?

What was her injury?

How long does it take for lack of oxygen to cause brain injury?

What was her course in the admitting hospital?

Where was she put?

What was condition?

How long could she live?

What is the MO definition of death?

Why wasn't she technically dead?

What is PVS?

What did her parents want?

What did the hospital say?

What were Nancy's rights as found by the trial court?

How did they know what she wanted?

Why was this appealed to the MO SC?

What did the MO SC do?

Did they find a right to refuse treatment?

What about a privacy-based right to refuse in all circumstances?

Where did it find a state policy in favor of preserving life?

Why did it reject the conversations with her roommate?

What was the statutory basis for denying her parents the right to terminate treatment?

Did the court think this was their call?

Why did the United States Supreme Court grant cert?

Review of medical consent law

What was the key refusal of care case?

What was the usual pre-Quinlan issue?

What has changed?

What was Karen Quinlan's condition?

What was the basis of the NJ SC's decision to allow her ventilator to be disconnected on her father's request?

How was this balanced against the state's interests?

How did the court decide that Karen's autonomy was best protected?

How have courts handled refusal of care after Quinlan?

What was the court's approach in Belchertown State School?

What values did the Belchertown court consider?

What was most important and why?

How did the NY court resolve Eichner?

Why this approach not work in Storer?

What did they do in Storer?

What were the facts in Conroy?

What legal theory did the court use in Conroy?

How could the right to refuse be exercised by an incompetent patient?

What do you do if you do not have a clue what the patient would have done?

What if you cannot determine the "best interests"?

Did the court draw a distinction between the types of care that are refused?

How did the NJ court later limit Conroy?

What did the court do in the later cases that clarified Conroy?

Did NY agree with this easy standard their decision O'Connor?

Why did the court reject the substituted judgment approach?

What standard did the NY court use?

What was the result in this case?

What state law solutions have courts found?

What do conservators usually do? Is this unusual?

When NY used it's guardianship law to allow decisions to be made for incompetents, what standard did it use?

Why did it reject the best interests standard?

After this review of state law options, what did Rehnquist state as the United States Supreme Court's only question?

Is Cruzan about a general, constitutional right to die?

Why is the 14th amendment at issue?

What was balanced in Jacobson?

Who won?

Does Rehnquist accept that the right to refuse treatment is a privacy issue?

Where does he find the right?

What did they assume for the purpose of deciding Cruzan?

How does the court distinguish Parham?

Why does the court reject the existence of a right to refuse treatment as useful in deciding Cruzan?

What question does the court see as at issue?

What is their ruling?

What interest did MO claim to be protecting?

What examples did the court give of other state's protecting this interest?

What example did the court not mention?

What does the court tell us that might be useful in arguing in favor of assisted suicide?

What factual issue is the court concerned about in any general rights for incompetents to refuse treatment?

What is the problem with family members automatically getting the right to substitute their consent?

Why might a guardianship proceeding not be adversary?

What is the quality of life issue that the states may decline to make judgments on?

What is the function of a standard of proof?

When does the Court require a 'clear and convincing' standard?

How is Cruzan different that the cases the court cites on the clear and convincing standard?

Why is court so worried about making errors in the Cruzan type of case?

Would the evidence of Cruzan's intent be admissible in other probate cases?

Given that the factual testimony in Cruzan is pretty weak, what other theory does the plaintiff claim should be applied?

How did the court distinguish these cases?

Why does Rehnquist reject substituted consent?

What is the plaintiff's equal protection argument?

JUSTICE O'CONNOR, concurring.

What was O'Connor's position on refusing medical care?

What was her position on explicitly delegated surrogate decision-makers?

What client-counseling suggesting does she make?

What is a durable power of attorney?

How does she state the holding?

JUSTICE SCALIA, concurring.

What was Scalia concerned with?

Who did he suggest should be making these decisions?

What were the common law penalties for suicide? Why did the states abolish these?

What was the law at the time the 14th amendment was adopted?

What did Blackstone have to say about excusing suicide because of suffering?

What about assisted suicide?

What is the action/inaction distinction and what does Scalia think of it?

What does Scalia think of the thwarting Nancy's wishes theory?

Would Brennan allow suicide?

Does Scalia conclude that Nancy should be kept alive?

DISSENTBY: BRENNAN; STEVENS

What does Brennan believe that the MO standard of clear and convincing evidence violates the constitution?

Why does Brennan quote: "[T]he timing of death -- once a matter of fate -- is now a matter of human choice."

How does Brennan mischaracterize the MO courts ruling about food and water to strengthen his attack?

How many people has fallen into PVS in the last 20 years?

How many stay that way for 7 years?

Did the majority deny that she was in a PVS or base their decision on the notion that she could recover?

Why does Brennan focus on this?

What horrifying scenario does Brennan say could follow from his claim that MO says that the state's interests outweigh Nancy's interest in avoiding medical procedures?

What did Brennan claim was the medical standard for heroic measures in trying to save a patient?

Has this changed?

What other consequences flow from making it harder to terminate life-support?

Why did the AMA want Cruzan reversed?

How does the MO Living Will statute undermine its arguments in Cruzan?

What is the symmetry problem with the MO standard?

What would the implications of using this analysis for criminal cases?

Why does Brennan say that MO has no right to treat Nancy until she proves she does not want treatment?

What traditional doctrines of informed consent does this undo and what would the implications be?

Why does Brennan reject the notion that a proceeding to terminate life-support will not be adversary?

How is this better than the higher evidentiary standard?

How does Brennan distinguish the other cases requiring clear and convincing?

Does Brennan agree that the MO standard will error on the side of prolonging treatment?

Why does he reject this?

But what about errors to terminate? Why are these discounted?

Why does he reject later decisions to reconsider a denial?

What happened in Cruzan?

What did Brennan think was wrong with Living Wills and durable powers?

What do we do about this with regular wills?

Who would Brennan let make the decision if the person's wishes could not be determined?

Why are family members better than the state?

Why did Brennan predict a great increase in patients in PVS?

Was he right?

JUSTICE STEVENS, dissenting.

What standard did Stevens want?