Surrogate Medical Decision-making Under the Best Interests Standard
| Publication year | 1995 |
| Pages | 291 |
| Citation | Vol. 24 No. 2 Pg. 291 |
1995, February, Pg. 291. Surrogate Medical Decision-Making Under the Best Interests Standard
In 1976, the New Jersey Supreme Court started a revolution in the way courts approach medical decisions for incompetent patients. The father of Karen Ann Quinlan sought the power to act on behalf of his daughter to terminate life-sustaining medical treatment ("LSMT") after she had entered a persistent vegetative state.(fn1) In re Quinlan(fn2) not only established the right of an incompetent patient to refuse medical treatment, it also brought to the fore the proposition that the patient, even if presently incompetent, has the right to control his or her own medical treatment. Surrogate decision-making(fn3) was born.
In the last two decades, there has been considerable litigation (although not in Colorado(fn4)) over the issue of withdrawing LSMT from incompetent persons. Two philosophical contexts have emerged within which to make this decision: (1) following the explicit instructions or known wishes of the incompetent, communicated at a time when he or she was competent, and (2) if instructions are unavailable or wishes unknown, determining what is in the "best interests" of the incompetent person.
Almost all state appellate courts considering this issue have given effect to explicit instructions and particular wishes, although requiring varying degrees of proof. Indeed, the U.S. Supreme Court has recognized a "constitutional liberty" mandating recognition of these instructions.(fn5) However, state legislatures and courts have been divided on what to do about those who leave no instructions nor any strong evidence of their own particular wishes, with courts often expressing severe reservations about using the best interests standard or limiting its utility.
Prior to the 1990 U.S. Supreme Court decision in Cruzan v. Missouri,(fn6) the state courts considering LSMT withdrawal cases had reached no consensus on whether constitutional rights were implicated, what limits could be placed on surrogate decision-making and what standards for decision-making were permissible. Cruzan avoided resolving most of these issues.
Two issues were raised in Cruzan: (1) whether a state requirement of clear and convincing evidence of the person's own wishes while competent unconstitutionally limits the ability to exercise this right when incompetent and (2) whether a state is constitutionally required to recognize the substituted judgment of close family members. The majority in Cruzan recognized a constitutional liberty to control one's own medical treatment and to refuse treatment, but allowed the states freedom to experiment with how to recognize and implement this choice.
The effect of Cruzan was to require states to recognize a well-articulated, specific desire not to be subjected to LSMT if this desire can be proved by whatever evidence standard a state chooses. For those with enough foresight or luck to have expressed strong and unequivocal desires, their wishes must be honored. For all others, the Court declined to recognize that any constitutional issue was involved. States were left free to experiment with the standard of proof and the methods and bases of surrogate decision-making, or to prohibit it entirely.
The concurring opinion to Cruzan moved one step further, indicating that its author saw no constitutional problem with powers of attorney that granted broad power to the agent but failed to articulate the exact wishes of the incompetent. Only the dissent to Cruzan fully embraced a best interests alternative to expressed desires.
The Colorado General Assembly seized the opening allowed by the U.S. Supreme Court and in 1992 wrote liberal standards into the Colorado Patient Autonomy Act.(fn7) The legislature embraced a "known wishes" standard and allowed best interests decisions when written directives or known wishes are absent, but provided no definition or guidelines for use of the best interests...
To continue reading
Request your trial