Promises and pitfalls: an analysis of the shifting constitutional interests involved in the context of demanding a right to treatment in health care.

• Author: Gomez, Paul A.

1. INTRODUCTION

   Over the course of the last thirty years, medical capacity to sustain and prolong life has grown by leaps and bounds.(1) However, significant questions have surrounded this increasing capacity.(2) Still, at some point, when dealing with questions of serious medical treatment, a truly thoughtful society must ask itself not merely whether it can, but, also whether it should provide advanced medical treatment. Over the last two and a half decades the medical and legal communities, as well as the country as a whole, have found themselves facing the latter question with increasing frequency.(3)

   Beginning primarily in the 1970s, one of the most significant and daunting questions to be answered in the health law context has been to what extent a patient ought to be permitted to refuse life saving, or potentially life saving treatment.(4) This question became particularly poignant when the patient's judgment was at odds with that of the treating physician.(5) Courts have generally settled the issue by recognizing, in the interest of patient autonomy, that competent, adult patients possess a liberty interest in determining what shall be done to their bodies.(6) This liberty interest includes the right to make decisions to refuse medical treatment.(7) Discussion of this autonomy interest will follow later in this comment in greater detail.(8)

   With the former question far more resolved than it was only twenty years ago,(9) a new, and potentially far more difficult, question looms on the horizon: if it is generally settled that, in the interest of patient autonomy, a liberty interest exists to enable patients to determine what shall happen to their own bodies, and that liberty interest encompasses the right to refuse unwanted potentially life saving or sustaining treatment, does it inescapably follow that, in the same context, a patient's right to demand treatment applies with equal force?(10)

   Part II of this comment will focus on the treatment of patient autonomy in the context of refusal of unwanted medical treatment.(11) Different approaches used in the contexts of competent and incompetent patients will be discussed, along with the applicable legal and medical standards to be used in making ultimate treatment decisions,(12) Further, the sources of a patient's autonomy interest will be discussed and evaluated.(13) Part II will conclude by examining the extent to which patients really do wish to be charged with ultimate responsibility for their own medical treatment decisions, and how realistic it is to expect patients to have the capability to do so.(14)

   Part III will constitute the majority of this comment, examining patient autonomy in the context of demanding treatment.(15) In an analysis regarding heroic versus ordinary measures, differences will be discussed from three key perspectives: 1) the physician/provider; 2) the patient; and, 3) the state.(16) Moreover, this analysis will be applied in a context in which the patient could avoid more costly procedures by accepting less costly ones earlier in the illness.(17)

   Part III will continue by dissecting the role of rationality in health care decision making from the perspectives of the patient and provider.(18) The right of a patient to demand treatment will be evaluated in the context of the reality of scarcity of resources.(19) Subsequently, the patient's constitutional rights will be analyzed, along with the question of whether the balance of the legitimate interests of the state, providence, and patient should or must shift in the context of patient demand for treatment.(20) The adequacy of the common law in this context will be addressed, and the need for legislative direction will be evaluated.(21) Finally, part IV will conclude by summarizing what guidance the legal and medical community can take from existing law, and call for legislative leadership and direction.(22)

2. RIGHTS INVOLVED: COMMON LAW, CONSTITUTIONAL, STATUTORY

   Courts have recognized a fundamental common law right of a competent adult to determine whether to accept medical treatment.(23) This right has not been applied narrowly.(24) In fact, courts have recognized that the right of a competent adult to refuse treatment extends even to scenarios in which treatment may be required to save the patient's life.(25)

   The New York State Court of Appeals has recognized a common law right of a patient to refuse medical treatment as particularly strong.(26) For instance, in Fosmire v. Nicoleau,(27) the court emphasized that the common law right to refuse medical treatment had been codified by the Legislature.(28) Further, the court declared the `"fundamental common-law right is coextensive with the patient's liberty interest protected by the due process clause of our State Constitution"'(29) leading to the conclusion that the "right could be overcome only by a compelling State interest."(30) It is submitted, therefore, that a patient's right to refuse medical treatment, even when it may be necessary to save the life of the patient, has solid grounding in common and statutory law.

   In addition to drawing from the common law and various state constitutions, courts have found patients' rights to refuse medical treatment to stem from the Federal Constitution as well.(31) For instance, the court in Satz v. Perlmutter(32) grounded the right of a terminally ill, elderly patient to refuse life-sustaining treatment in a constitutional right to privacy.(33) The court went on to elaborate that such a determination was consistent with the individual's sanctity of expression and right to self-determination.(34) The United States Supreme Court expressed similar sentiments, but chose to ground the right to refuse medical treatment in a Fourteenth Amendment liberty interest rather than the right in privacy.(35) Nevertheless, the combined message of the overwhelming majority of the courts is that, generally, patients do possess a fundamental right to refuse medical treatment, whether the right is constitutional (including Fourteenth Amendment liberty interests), statutory, or grounded in common law.(36)

   Of course, the right to refuse medical treatment, whether grounded in the constitution, granted by state or federal statutes, or rooted in the common law, is not without limitation.(37) As Fosmire so clearly stated, the "[s]tate has a well-recognized interest in protecting and preserving the lives of its citizens."(38) This interest is not applied uniformly, but is dependent upon the circumstances.(39) For instance, the court has specified that a distinction should be made between a state's interest in protecting the hoes of its citizens from harm caused by third parties and from the individual's own choices.(40) Indeed, due to competing state interests in preserving and protecting the liberty and autonomy of the individual, it is the rare occasion in which the state acts to protect the individual from himself.(41) Superintendent of Belchertown State School v. Saikewicz(42) is instructive in illustrating the extent of limitation on a patient's autonomy right to refuse treatment.(43) In that case, the court outlined four legitimate interests of the state that are able to temper the patient's autonomy right. They are as follows: 1) the interest in the preservation of life; 2) the need to protect innocent third parties; 3) the prevention of suicide; and 4) the sustentation of the ethical integrity of medical practice.(44)

   1. Competent Patient

      It is necessary at this point to briefly discuss patient autonomy and the right to refuse treatment in the context of competent patients. Further, the manner in which competency is established will be discussed.(45) First, it must be clearly noted that a patient is presumed to be competent unless shown otherwise by evidence.(46) The power of this presumption is strong, and it is not easily rebutted.(47) For instance, a showing that a patient is emotional or prone to acts of irrationality at times is not necessarily enough to sustain a finding of incompetence, or to remove the power from the patient to make his or her own treatment decisions.(48) Even a showing that a patient is forgetful, subject to lapses in train of thought, or vacillates in resolve to undergo or refuse treatment, will not necessarily be enough to establish incompetence.(49) Courts are more interested in a particular connection between a patient's mental deficiencies and an impairment of the ability to understand the implications of the choice the patient has made.(50) For instance, in State v. Northern,(51) a patient was faced with amputation of her feet.(52) Without the amputation, the patient would die.(53) In this case, the patient rejected the amputation, but also related that she intended to live.(54) Unlike the patient in Lane v. Candura,(55) who appreciated that forgoing the amputation would result in death and chose on that basis,(56) the patient in Northern did not comprehend that she must choose between amputation and death.(57) The Northern patient was found not to be competent to make the decision, and an alternative form of judgment had to be made.(58) It must be stressed at this point that finding this patient incompetent to make the decision did not stand upon either the doctor's disagreement with her decision, or the consequences of her decision.(59) It stood instead upon her lack of capacity to appreciate and comprehend the consequences of her decisions.(60) Consistent with that reasoning is the result in In re Quackenbush.(61) That case involved an elderly gentleman who was faced with the choice of amputation of both gangrenous legs or death.(62) The gentleman refused to consent to treatment.(63) Although he was given to discrepancies in mental lucidity and subject to losing his train of thought on occasion, he was found competent to reject the proposed treatment, despite the ultimate consequence.(64) Again, the key to the court's finding of competence in this regard was...