2007 Winter, Pg. 20. Beyond Advance Directives: Personal Autonomy and the Right To Refuse Life-Sustaining Medical Treatment.

AuthorBy Attorney Carol Stamatakis (fn1)

New Hampshire Bar Journal


2007 Winter, Pg. 20.

Beyond Advance Directives: Personal Autonomy and the Right To Refuse Life-Sustaining Medical Treatment

New Hampshire Bar JournalWinter 2007, Volume 47, No. 4Judicial LegaciesBeyond Advance Directives: Personal Autonomy and the Right To Refuse Life-Sustaining Medical TreatmentBy Attorney Carol Stamatakis (fn1)There is a tendency to focus narrowly on state statutes governing advance directives for guidance when life-sustaining treatment(fn2) is at issue. However, advance directive laws are best understood as efforts to create practical frameworks for recognizing and respecting certain fundamental rights. This article is an overview of the rights of patients to refuse life-sustaining medical treatment under the common law and the United States and New Hampshire constitutions, and the duties of medical professionals when such treatment decisions must be made. Legislative proposals emerging in the wake of the sensationalized case of Terri Schiavo would significantly narrow the circumstances under which artificial nutrition and hydration can be refused. Guidance is offered for understanding the scope of a patient's right to refuse treatment, and for interpreting existing law and analyzing proposed legislation that potentially infringes on that right.

  1. Foundations of the Right to Refuse Life-Sustaining Medical Treatment

    The right to refuse medical treatment is rooted in the common-law right to informed consent, the liberty interest under the due process clause of the fourteenth amendment, the state constitution and state laws governing the care and treatment of incompetent adults. Courts have relied on these sources of authority in defining a patient's right to refuse treatment.

    1. The Common Law Right to Informed Consent

      The right to informed consent evolved from notions of personal autonomy rooted in the common law. The right to have control over one's body and refuse unwanted touching was recognized by the US Supreme Court in the 1891 case of Union Pacific R. Co. v. Botsford.(fn3) In rejecting the request of a railroad company to perform a surgical procedure on a woman suing for injuries sustained in a fall, the Court stated:

      "No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestioning authority of the law." (fn4)

      In 1914, in Schloendorff v. Society of New York Hospital, Justice Cardozo, sitting on the New York Court of Appeals, spoke to the liability of a healthcare provider in an action for trespass for treatment of a patient without the patient's consent:(fn5)

      "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without the patient's consent commits an assault, for which he is liable in damages." (fn6)

      Interestingly, the right of a patient to be informed of his or her condition and treatment options, a necessary component of the patient's ability to exercise informed consent, as it is understood today, is a more recent development.(fn7) In 1954, when Joseph Fletcher, described as "America's first medical ethicist," stated that patients have the right to know the truth about their medical condition, this notion was extremely controversial.(fn8) Well into the 20th century, doctors were not encouraged to tell the truth to patients, particularly the terminally ill.(fn9) The 1940 Code of Ethics of the American Medical Association provided that "(a) physician should give timely notice of dangerous manifestations of the disease to the friends of the patient (emphasis added)." (fn10) Informed consent developed as a theory of recovery in medical malpractice. (fn11) Though first articulated in case law and commentary in 1957, it did not become a popular theory for recovery until 1972.(fn12) In 1978 the New Hampshire Supreme Court noted that "(g)enerally a doctor has a duty to inform his patient of the reasonable risks involved in an operation or treatment so that the patient can make an effective choice."(fn13)

      According to the American Medical Association, "Today, physicians are called upon to promote patients' well-being by openly discussing the balance between anticipated benefits of a given intervention and its potential harms."(fn14) Informed consent is generally required for medical treatment.(fn15) Conversely, "the patient generally possesses the right not to consent, that is, to refuse treatment."(fn16) "This right is a corollary to the common law doctrine of informed consent, which follows logically from the universally recognized rule that a physician, treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient. The fountainhead of the doctrine in the patient's right to exercise control over his own body, by deciding for himself whether or not to submit to the particular therapy."(fn17)

    2. Refusal of Life-Sustaining Treatment - The Development of the Law Prior to Cruzan

      Legal principles applicable to requests to discontinue artificial life supports began to develop in state courts in the 1970s. Cases that reached the courts prior to that time typically involved patients who refused medical treatment based on their religious beliefs, such as Jehovah's Witnesses refusing blood transfusions.(fn18) The New Jersey case of In Re: Quinlan first drew popular national attention to the question of whether artificial life supports, in that case a respirator, could be withdrawn from a patient in a persistent vegetative state and how and by whom such a decision should be made.(fn19)

      Quinlan presented new legal and ethical issues that came about as a result of technological advances in artificial life support that allowed individuals to be kept alive indefinitely through artificial means, sometimes in an unconscious state and without likelihood of regaining consciousness and/or functional capacity. As noted by Chief Judge Hughes, delivering the opinion of the New Jersey Supreme Court, "(T)he law, equity and Justice must not themselves quail and be helpless in the face of modern technological marvels hitherto unthought-of." (fn20)

      The patient's father sought to be appointed her guardian with the express power to authorize the discontinuance of the respirator.(fn21) The hospital and treating physician opposed his action, contending that removal of the respirator would not conform to contemporary medical standards which allowed removal of a respirator only upon a determination of death under the criteria for brain death.(fn22) The state intervened based on its interest in preserving life.(fn23) The New Jersey Supreme Court analyzed the case in terms of a constitutional right to privacy, drawing an analogy to several US Supreme Court decisions recognizing such a right in the areas of contraception and abortion.(fn24) The Court determined that her right to privacy could be asserted on her behalf by her guardian, and set forth a procedure whereby he could choose her treating physicians and authorize discontinuance of life-sustaining treatment with their support and upon consultation with an "ethics committee" or like body.(fn25)

      The New Jersey Supreme Court observed that under the practice prevailing at the time, the decision to withdraw a respirator was made by physicians exclusively and without family involvement.(fn26) The Quinlan case ushered in an era in which patients and families would exercise increased decision-making authority in areas previously considered the province of healthcare providers. The Court strongly encouraged the development of hospital ethics committees, and expressed the hope that in the future decisions could be made privately by families and providers, without involvement of courts.(fn27)

      The Quinlan case was to have enormous influence on courts throughout the country, public opinion and state legislatures. While the case made no mention of living wills, following the publicity generated by the case, statutes authorizing "living wills" began to be enacted. Courts throughout the country saw a proliferation of cases that raised similar issues, including the right to refuse artificial nutrition and hydration, with varying fact patterns.

      By 1990, many cases were reported throughout the country involving the right to refuse life-sustaining treatment. There was general agreement that a competent person had the right to refuse life-sustaining medical treatment, including artificial nutrition and hydration.(fn28) Beyond that, there was significant diversity among the states in the approaches taken when others sought to discontinue or refuse treatment on behalf of an incompetent person. (fn29) Decisions turned on the common-law doctrine of informed consent, existing state statutes and common law governing decision-making on behalf of incompetent adults and interpretations of state and federal Constitutional rights to liberty and privacy. Cases addressing the right to refuse medical treatment as a liberty interest under the 14th amendment involved a balancing of the individual's liberty interest against relevant State interests that included the State's interest in preserving life, preventing suicide, maintaining the integrity of the medical profession and...

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