The Judicial Council of the American Medical Association has endorsed the
concept of allowing spouses and relatives to consent to the care of
incompetent patients without first getting the patient’s permission. Several
state legislatures have considered or passed laws that empower physicians to
seek informal consent from the relatives of incompetent patients. Physicians
have supported these efforts because they make the physician’s life simpler by
limiting the need for guardianship proceedings. Unfortunately, these efforts
may have profound and unintended consequences for the physician–patient
relationship.
Substituted consent is a devil’s bargain. First, the assumption that family
members always have their relatives’ best interests at heart is contradicted by
the bulk of family law cases and many of the cases involving wills. Even a
loving family is no insurance against conflicts:
Close family members may have a strong feeling—a feeling not at all
ignoble or unworthy, but not entirely disinterested, either—that they do
not wish to witness the continuation of the life of a loved one that they
regard as hopeless, meaningless, and even degrading. But there is no
automatic assurance that the view of close family members will
necessarily be the same as the patient’s would have been had she been
confronted with the prospect of her situation while competent. [
Cruzan, 497 U.S. at 286.]
There is a particular irony in Cruzan. Justice Brennan’s dissent in the case
asserted that the family had a constitutional right to substitute its wishes for
the unknown desires of the patient. This dissent was prefaced with a glowing
description of the concern that all families feel for their loved ones and how it
was cruel for the majority to imply that the family might not have the patient’s
best interests at heart. In a case decided the same day, Justice Brennan joined
in a dissent portraying the families of girls seeking abortions as uncaring
monsters who had no right to be informed or participate in the decision to
have an abortion. Most bioethicists see a critical distinction between
substituting consent for terminally ill incompetents and substituting consent for
other patients. Unless this is based on the hidden belief that these
incompetents are actually dead, it is legally unsupportable. There is no
constitutional basis to believe that the Supreme Court will treat substituted
consent for medical incompetents as a special case, separate from that of
other situations where family interests conflict with those of the individual.
Although preserving patient autonomy is inconvenient for terminally ill
incompetent patients, once autonomy is lost, the consent process will be a
battleground for control of the physician–patient relationship. The legal basis of
this relationship is the same personal autonomy that this substituted consent
denies. If the Supreme Court creates a constitutional right for families to
substitute their decisions for patients, this right will not be limited to
termination of life-support cases. For example, such a constitutional right could
be used as support for laws requiring husbands to be consulted about their
wives’ access to contraception or wives to be consulted about their husbands’
cardiac surgery. It would be especially troubling for minors because minors are
incompetents according to the law. The convenience of simplifying a limited
number of termination of life-support decisions could be rapidly overshadowed
by unprecedented intrusions into the physician–patient relationship.
