The Drawbacks of Substituted Consent
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.