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. Although courts have
ordered treatment in some cases, recent case law,
Fosmire v. Nicoleau,
[Fosmire v. Nicoleau, 551 N.E.2d 77 (N.Y. 1990)] 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. [Id. at 84.]
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. [Kane EI. Keeping Elizabeth
Bouvia alive for the public good.
Hastings Cent Rep. 1985;15:5.]
