Viewing the 'draft guidelines for state court decision making in authorizing or withdrawing life-sustaining medical treatment' from the perspective of related areas of law and economics: a critique.

• Author: Gorby, John D.

Introduction (1)

In December 1990, the National Center for State Courts published its "Draft Guidelines for State Court Decision Making in Authorizing or Withholding Life-Sustaining Medical Treatment (LSMT)." (2) The introduction to the draft guidelines states that the "media [portrays] LSMT cases as moral and ideological conflicts," whereas "trial judges must deal with more prosaic procedural and practical issues in handling these cases." (3) The draft guidelines, the introduction goes on to say," are meant primarily to be practical recommendations that will assist judges in resolving LSMT controversies. Thus they focus on administrative practices, court procedures, and the process of legal decision making, and not on the relevant substantive law." (4)

The "right to live/right to die" debate raises important issues of substantive law. The Supreme Court in Cruzan v. Director, Missouri Department of Health (5) dealt with some of these issues but did not completely or even satisfactorily resolve all of them. For example, does the constitutional right to privacy include the right to decide to terminate one's own life? (6) Does the state have a sufficiently important interest in its citizens' lives to control this decision by requiring that life be maintained? (7) May the state require that lifesaving medical treatment be withdrawn? (8) Should the law of homicide punish a person who helps another terminate his life? (9) How much of society's resources can reasonably be used to maintain a person's life? (10) Can insurance companies be required to pay without limit to maintain human life? (11) How our society eventually answers these questions will determine the rules of the substantive law in this area of value conflict and high emotion. The draft guidelines, however, purport not to get involved in this debate. In short, they are intended to be procedural, not substantive.

The distinction between "procedural law" and "substantive law" is commonplace, one which every first-year law student feels comfortable making. Substantive law, he learns, has to do with the rights and duties of men in their relationships with each other or with the state, whereas procedural law deals with the means of maintaining or redressing these rights when they have been violated or when their violation has been threatened. Procedural law "exists for the sake of something else--for the sake of 'substantive' law." (12) It serves the resolution of lawsuits under the substantive law. In federal and in most state courts there is one code of civil procedure to serve all areas of substantive civil law, e.g., contracts and torts. Except for criminal law, which presents unique problems, special rules of procedure for the various areas of substantive law are rarely considered necessary.

And thus, when a prominent body such as the National Center for State Courts drafts special procedural guidelines just for a specific area of substantive law, attention is alerted. Why a special set of rules? Are the judicial problems of authorizing or withholding lifesaving medical treatment so different that a special set of procedural rules is necessary? Is perhaps the commonplace distinction between substantive and procedural law not as clear-cut as one may first think? Are the rules of procedure set forth in the draft guidelines taking on functions beyond that of simply serving the resolution of cases under the substantive law?

Rules of procedure occasionally take on tasks other than simply serving the substantive law. In this imperfect world there are lots of legal cases and litigants with stories to tell. Courts do not have unlimited time and resources to get the bottom of every case and story in an effort to resolve each case justly under the norms of the substantive law. Thus, rules of procedures are sometimes used to assure the efficient administration of the courts and to enable courts to dispose of a large number of cases. Rules of procedure sometimes force a final and lasting resolution of disputes so that those involved can get on with their lives and avoid such pitfalls as Charles Dickens's notorious probate case of Jahrndise v. Jahrndise, which lasted thirty years and depleted the entire estate. In the end, everyone involved had forgotten what the case was about. (13)

Sometimes these other concerns of the law of procedure loom greater than the need to find the truth and get to the bottom of every dispute in an effort to do justice the substantive law. Sometimes trial and appellate courts bend the rules of procedure to avoid resolving a case under the existing rules of substantive law. (14) When procedural law is used in this manner, it is hardly the "handmaiden of the substantive law. Rather it takes on functions of the substantive law itself in that it is used to determine the outcome of the case in spite of the substantive law.

In all these instances, procedural law has taken on a life of its own. In other words, procedural rules are often not simply procedural rules. So one is well advised to wonder about the reasons why the National Center for State Courts felt the need to create special procedures and guidelines for right to live/right to die case.

In addition, the rules of procedure serve the important goal of giving all parties the sense that the are being fairly dealt with and have a reasonable chance to present their sides of the dispute to an impartial tribunal. In many ways, this latter goal is the essence of "due process," which our national and state constitutions seek to safeguard. So one should also ask, do these draft guidelines adequately safeguard due process?

This article will address some of these issues. The first section will discuss the organization of the guidelines and present the general issues. The second section will identify those persons or entities who have an interest in lifesaving medical treatment decisions and discuss conflicting interests and the manner in which the law traditionally deals with conflicting interests. The third section will illustrate that the draft guidelines are premised upon a substantive right to die as opposed to a right to life and its possible waiver (it will show that this premise is unsound and has far-reaching consequences concerning the appropriateness of judicial involvement in LSMT decisions). The fourth section will discuss arguments against judicial involvement in LSMT decisions, including the doctrine of justiciability and its application to LSMT cases. The final section will illustrate that the right to live/right to die controversy involves more that just individual rights. In reality, economics plays an ever-increasing role. For that reason the judiciary has a responsibility to assure that these important economic problems are resolved in a manner compatible with our society's commitment to responsible decisionmaking and to the individual's fundamental right to life.

The Draft Guidelines

The guidelines are organized into an introduction and four basic sections. The first section, entitled "Limiting the Need for Formal Court Involvement," makes a strong policy statement encouraging nonjudicial solutions to the dilemma concerning life-sustaining medical treatment (LSMT) decisions. This section discourages routine use of the courts, encourages advance directives for health care, encourages health care institutions to develop sound and fair policies designed to avoid LSMT litigation, and encourages the development of nonjudicial alternatives to LSMT matters.

The second section, entitled "Issues Before Trial," pertains to the development of court administrative procedures that will help the expeditious handling of cases and quickly assure that all routine jurisdictional, pretrial procedural, notice, and due process concerns are attended to. To this extent, the draft guidelines add little to the procedural rules of most courts concerning jurisdiction, justiciability, standing, and notice. Of importance, however, is the implication that most LSMT cases are not justiciable and should be dismissed. (15) On the other hand, the draft guidelines do organize and emphasize those rules of procedure that are of particular concern in LSMT cases. In this regard, the guidelines are helpful to attorneys and judges who are without much experience in such matters.

The third section, entitled "Judicial Hearings," deals with the actual trial itself. This section is not controversial or unusual because the primary concern of a judicial hearing in an LSMT case, like any trial, is to make findings of facts that determine the outcome of the case under the substantive law. The draft guidelines in this section are the same as the rules of procedure and evidence courts employ in any judicial hearing. The last section, entitled "Post-Hearing Matters," is also short and simple. It suggests an expedited appeal, if one is necessary, and the trial court's retention of jurisdiction.

The first section is the most troublesome and is worthy of extended discussion because it suggest that nonjudicial alternatives to LSMT matters are favorable. The suggestion in the second section that most LSMT cases are not justiciable is also unsound. Nonetheless, this notion of the nonjusticiability of most LSMT cases logically furthers the general policy commitment of nonjudicial involvement set forth in the first section. For the reason, the second section also deserves comment. The third and last sections do not deserve special comment because they are simply restatements of current court practices and are not controversial.

It is thus apparent that the major thrust of the draft guidelines is, as the title to its Section II says, "Limiting the Need for Formal Court Involvement." The commentary elaborates: "The focus of this section of the guidelines is not on the individual LSMT case before the trial court, but rather policies and practices that shape LSMT caseflows and caseloads." (16) This position is based on four...