Who Should Make Medical Decisions for Incompetent Adults? a Critique of Rcw 7.70.065
| Publication year | 1996 |
| Citation | Vol. 20 No. 02 |
I. Introduction
Advances in medical technology give us a better chance of surviving a serious accident or illness than ever before. On a daily basis, heart attack victims, accident victims, and cancer patients are treated with new techniques and technologies that keep them alive longer.(fn1) Survival, however, does not mean that we will be able to communicate our wishes or be competent enough to make decisions about our medical treatment. Who, then, should make decisions such as whether we should undergo surgery or be taken off life support systems?
Many Washington residents may be surprised to learn that if they are not competent to make medical decisions for themselves, a parent seen only at Christmas-time every few years may be called on to make medical decisions for them, or that their significant other may be prevented from making medical decisions for them regardless of how long they have lived together. These situations, and several others, are described more fully in this Comment in the context of the need to amend Revised Code of Washington (RCW) 7.70.065, Washington's medical decision-making statute. To show why the statute should be rewritten, this Comment discusses: (1) the importance of autonomy and self-determination in medical decision-making; (2) the purpose of proxy medical decision-making statutes; (3) Washington's proxy decision-making statute; and, (4) current family demographics. This Comment concludes by proposing a new medical decision-making statute for Washington.(fn2)
In crafting medical decision-making statutes, state legislatures have tried to answer the question of who should make medical decisions for incompetent patients by looking to the principle of personal autonomy.(fn3) Personal autonomy, a principle rooted in Western philosophy, has strongly influenced American law and bioethics.(fn4) Because the principle of autonomy requires that a patient make medical decisions for him or herself, legislatures have struggled to find ways of effectuating an incompetent patient's wishes.(fn5)
The Washington legislature, in addressing this problem, has created a statutory priority list of proxy decisionmakers who are authorized to make medical decisions for an incompetent patient.(fn6) Incompetence is defined as mental illness, developmental disability, habitual drunkenness, excessive use of drugs or other mental incapacity.(fn7) Under Washington's proxy decision-making statute, the first two decisionmakers on the priority list are a court-appointed guardian, followed by any person to whom the incompetent patient has given his or her durable powers of attorney for health care.(fn8) Because most incompetent individuals have neither a court appointed guardian, nor a durable power of attorney for health care decisions, these first two classes of decisionmakers will rarely apply.(fn9)
The classes that follow guardian and a person with durable power of attorney are most relevant to the majority of people who become incompetent. Those classes of decisionmakers are, in the order of priority, spouse, adult children, parents, and adult siblings.(fn10) No person outside these four classes of decisionmakers is legally authorized to make decisions for the incompetent patient.(fn11) Additionally, no person in one of the authorized classes may make medical decisions for the incompetent patient if a person in a higher class can be located.(fn12) The belief underlying the statute is that these classes of decisionmakers, in the order set out by the Washington legislature, will know and make the same decision that the incompetent patient would make, were he or she competent.
However, this Comment will demonstrate that the statute and its exclusive hierarchy of decisionmakers may fail to effectuate an incompetent patient's wishes for as many as one-third of Washington residents.(fn13) The statute's priority list of proxy decisionmakers assumes that all families consist of two legally married individuals and their children. As U.S. Census Bureau statistics show, this married-two-parent family is not the reality for many Washington residents.(fn14) Family members who are not classified as members of this unit, such as grandparents, aunts, uncles, and cousins, or unmarried partners and close friends are prevented from acting as proxy decisionmakers under the statutory hierarchy. Furthermore, even among the family members who are included in the statutory hierarchy, the statute's rigidity does not allow a family member who is lower on the priority list, though a more appropriate decisionmaker for the incompetent patient, to be appointed if a higher priority family member can be contacted.(fn15) The statute's appointment of proxy decisionmakers based on the degree of consanguinity or legal relationship rather than the decisionmakers' demonstrated closeness to or concern for the incompetent patient can result in the appointment of decisionmakers who have no idea what the patient would decide were he or she competent. Conversely, people who may be most likely to know what the incompetent patient would decide may be excluded from the decision-making process. Thus, the statute should be rewritten.
II. The Importance of Autonomy and Self-determination in Making Medical Decisions
The belief that every person has the right to autonomy and self-determination is deeply rooted in the western philosophical tradition.(fn16) Because the dominant culture and belief system of the United States is shaped by this philosophical tradition, the importance of personal autonomy and self-determination is evident in many facets of our society, including making medical decisions. This section briefly shows how the principles of autonomy and self-determination have influenced American case law and legislation pertaining to medical decision-making.
The principle of personal autonomy has not always affected a patient's right in determining what medical treatment he or she will or will not receive. As long ago as ancient Greece, and as recently as the nineteenth century, patients' participation in medical decision-making was minimal because doctors were expected to inspire confidence in their own medical judgment and maintain patients' hope for a cure.(fn17) By the early part of the twentieth century, however, the notion that personal autonomy requires informed consent for medical treatment became ingrained in American tort law.(fn18)
In 1891, the United States Supreme Court recognized the right of personal autonomy.(fn19) In response to a defendant's request that the plaintiff in a personal injury action submit herself to a physical examination, 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 her own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."(fn20) Thus, the Court affirmed that every person has a right to control his or her own body.
Justice Cardozo, of the New York Court of Appeals, took the principle that every person has a right to control his or her own body one step further. He is widely credited with originating the legal requirement that the right of personal autonomy mandates that a medical practitioner must obtain a patient's consent to medical treatment.(fn21) In
The right of personal autonomy in medical decision-making has been recognized by state legislatures as well as courts. For example, the preamble of Washington's Natural Death Act,(fn23) which permits terminally ill patients to legally refuse life-sustaining treatment, states that "adult persons have the fundamental right to control the decisions relating to the rendering of their own health care."
In medical decision-making, it is not just the patient's consent that is required, but the patient's informed consent.(fn24) As American tort law has developed, doctors are required to give their patients sufficient information so that the patient can make an informed and intelligent decision on whether to submit to a particular medical treatment.(fn25) A doctor's responsibility to inform his or her patient of the risks involved in a particular medical treatment is considered the legal standard of professional conduct under American tort law.(fn26) Consequently, a doctor's failure to obtain informed consent gives rise to a cause of action for negligence.(fn27) Therefore, when a patient is incompetent and unable to give informed consent, doctors are in a quandary: How can doctors provide the patient with the needed medical treatment, preserve the patient's right of autonomy, and protect themselves from a suit for negligence for treating the patient...
To continue reading
Request your trial