RIGHT TO DIE: CONSTITUTIONALITY AND JURISPRUDENCE OF ASSISTED SUICIDE


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Law and Medical EthicsJLM-14-05-207

BY ADEYEMI OSHUNRINADE. {E. JD}

May 5, 2014

Outline

  1. Abstract
  2. Introduction
  3. Incompetent Patient
  4. Case History
  5. Patient With Capacity
  6. Tests for Competency
  7. Patients Without Decisional Capacity
  8. Conclusion
  9. Conflict of Interest
  10. References

Abstract

The aim is to show that, though, the United States Constitution did not mention the right to die as a constitutional right, the constitution, recognizes the right to privacy as part of a patient’s right to accept or refuse medical treatment. The general view is that the right to die cannot be denied to a competent patient or where there is clear and convincing evidence of competent statement, made by an incompetent patient, when the patient had capacity.

Introduction

The doctrine of autonomy declares that a person is in control of himself, including his body and mind. The principle is that no other person or social institution can intervene or decide what is right for another, whether or not a person’s desires are right. The right to die should be exercised freely and a person, who wishes to die, must be allowed to do so as long as his choice and method of death, does not substantially affect others.

The doctrine of beneficence however, is based on the principle that what is best for each person must be accomplished. First, one under obligation to act for the benefit of another must do so diligently without harm. Second, one obliged to act must do so with good intention. For example, the principle of beneficence requires a Physician, to provide the highest quality of care to his patients. Likewise, a Physician must treat his minor patient in a way that is most beneficial to the child, based on what he may think the child wants and whatever the parents or guardians desire.

A line exist at a point where the principle of autonomy and beneficence conflict. For instance, when a person does not want what other people thought is in his interest, at that point, there is a disagreement between the principle of autonomy and beneficence. Generally, most courts recognize the principle of autonomy as the first principle of medical ethics. The belief that every patient has the right to decide what to do with his or her body, forms the basis for the principle of informed consent, the rule that a Physician must adequately inform his patient and seek the patient’s consent before embarking on a medical procedure.

On the other hand, courts and bioethics scholars only apply the principle of beneficence, when autonomy is impossible to apply, as where the person whose interest is at stake is a minor or a newborn that has not developed the capacity to express wishes or desires. Though, there is no mention of a fundamental right to die in the United States Constitution, courts’ decisions and opinions of the Supreme Court’s Justices, have demonstrated the majority belief that, the right to die, cannot be denied when the decision to die is made by a competent person, or where there is a constitutionally relevant information about an incompetent patient’s wish to die.

In most cases, courts look to general rules of health-care decision-making to determine when a patient or his family may end life-sustaining medical treatment, however, the general rules are not often adequately defined. In such decision-making process, courts start by looking in the law of informed consent and other administrative regulations such as from the State Department of Health, State Statutes, State constitutional provisions, Federal regulations, Federal statutes and the United States Constitution.

The Supreme Court has dealt with cases where, it had to offer constitutionally based opinion on the right to die. The court’s opinion and the principle set forth, established that while the court did not conclude that the right to die is a constitutional right, there is a majority opinion that such right cannot be denied, when the decision to die is made by a competent person, or when there is proof of competent statement made by the patient when the patient had capacity.

To better understand American jurisprudence on the subject and the constitutional views on the right to die, it is vital to treat cases and statutory demands that have dealt with the issue in the past as a path to where the law stands on the right to die.

Incompetent Patient

In Cruzan v. Director, Missouri Department of Health, the issue before the Supreme Court was whether Cruzan has a right under the United States Constitution, which would require the hospital to withdraw the life-sustaining treatment from her under the circumstances that made her incapable of regaining her cognitive faculty.[i]

Case History

The petitioner Nancy Beth Cruzan became incompetent due to severe injuries sustained during an automobile accident. Co-petitioners Lester and Joyce Cruzan, Nancy’s parents and co-guardians, sought a court order to withdraw their daughter’s artificial feeding and hydration equipment after it became clear she had no chance of regaining her cognitive faculties. The Supreme Court of Missouri held that because there was no convincing evidence of Nancy’s desire to have life-sustaining treatment withdrawn under such circumstances, Nancy’s parents lacked authority to effectuate such a request.

On the night of January 11, 1983, Nancy Cruzan lost control of her car while travelling down Elm Road in Jasper County, Missouri. The vehicle overturned, and Cruzan was found face down in a ditch without respiratory or cardiac function. Paramedics restored her breathing and heartbeat on the spot and she was transported to the hospital unconscious. The attending neurosurgeon diagnosed her as having sustained cerebral contusions due to lack of oxygen, Cruzan was deprived of oxygen from 12 to 14 minutes.

She remained in a coma for three weeks and then progressed to an unconscious state in which she was able to orally ingest nutrition. To ease feeding and recovery, surgeons implanted a gastrostomy feeding and hydration tube with the consent of her husband. Subsequent rehabilitative efforts proved unavailing and she deteriorated to a persistent vegetative state. She lacked cognitive function and the state of Missouri was bearing the cost of her care. After it became clear she had no chance of regaining her mental faculties, her parents asked hospital employees to end artificial nutrition and hydration, all agree the move would cause her death.

Hospital employees refused to honor her parents’ request without a court order. The parents then sought and received authorization from the state trial court for termination. The trial court, found that “a person in Nancy’s condition had a fundamental right under the State and Federal Constitutions to refuse or direct the withdrawal of “death prolonging” procedure.” [ii] The court also found that Nancy’s “expressed thoughts at age twenty-five in somewhat serious conversation with a housemate friend that if sick or injured she would not wish to continue her life unless she could live at least halfway normally suggests that given her present condition she would not wish to continue on with her nutrition and hydration.”

The Supreme Court of Missouri reversed the Trial Court’s decision and on appeal to the U.S. Supreme Court, the court, must consider the question of Cruzan’s rights under these circumstances and whether the United States Constitution prohibits Missouri from choosing the rule of decision, which it did. It is the first case in which the court is presented with the issue of whether the United States Constitution grants the “right to die.

In answer, the Supreme Court reiterated the provision in the Fourteenth Amendment that no state shall “deprive any person of life, liberty, or property, without due process of law.” That a person has a constitutionally protected liberty interest in refusing unwanted medical treatment can be traced to prior decisions of the court. Determining that a person has a “liberty interest”[iii] under the Due Process does not end the inquiry. “Whether respondent’s constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state’s interests.”

Petitioners claimed that forced administration of life-sustaining medical treatment, would implicate a competent person’s liberty interest. In response, the court said: “But for the purposes of this case, we assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.”[iv] Since an incompetent person is unable to make an informed choice to exercise a “hypothetical right” to refuse treatment, such a “right” must be made for her by a surrogate.

Though, Missouri recognized that under certain circumstances, a surrogate, may act for the patient to have lifesaving hydration and nutrition withdrawn to cause death, the action of the surrogate must conform to the wishes expressed by the patient while competent. Facts of the incompetent wishes as to the withdrawal of treatment must be proved by clear and convincing evidence.

As to the question of whether the constitution forbids such procedural requirement by the state, the court held that it does not since such inquiry, depends on what interest the state seek to protect in the situation. Missouri relies on its interest in the protection and preservation of life and since there are laws imposing penalties on one who assists another to commit suicide, “We do not think a state is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death.”[v]

A state is entitled to see that a judicial proceeding to make a determination on an incompetent’s wishes is not an adversarial one. A state may decline to make judgments about the quality of life that an individual may enjoy and simply apply an unqualified interest to the preservation of human life, weighed against the constitutionally protected interests of the individual. In the Court’s view, the state of Missouri sought to advance such interests through clear and convincing standard of proof.

In affirming, the U.S. Supreme Court found that the Supreme Court of Missouri committed no constitutional error, in reaching the conclusion that it did. A state may request clear and convincing evidence in a proceeding where a guardian seeks to end lifesaving treatment of a person in a persistent vegetative state. Therefore, while the right to die is not constitutionally recognized, the majority opinion is that such right cannot be denied to a competent person or where there is clear and convincing evidence that the incompetent person expressed the wish to die in such circumstances, while he was with capacity.

Patient with Capacity

In Bouvia v. Superior Court, the court concluded that hospitals have responsibility to serve the autonomous interests of patients as directed by those patients. The California hospital was not only required to stop providing life-saving treatment for petitioner Elizabeth Bouvia, it was required to give the medical assistance that would enable her to die without avoidable pain that is, the way she chose to die.[vi] Relevant facts of the case are briefly summarized:

Petitioner is a 28-year-old woman. She suffered from cerebral palsy and a quadriplegic. She is a patient at a public hospital maintained by one of the parties in interest, the County of Los Angeles. Other parties are physicians, nurses and the medical and support staffs employed by the County of Los Angeles. Bouvia is completely bedridden she is immobile, physically helpless and unable to care for herself. She also suffers from degenerative and severely crippling arthritis and continual pain.

She is intelligent, mentally competent and has a college degree. She was married but her husband has left her. She suffered a miscarriage and lived with her parents until they could no longer care for her. A search for a permanent place where she could receive adequate care became unsuccessful. She is without financial means and must accept public assistance for medical and other care. She has expressed the wish to die and in 1983, she sought the right for care in a public hospital in Riverside County in order to intentionally starve herself to death. The court denied her judicial assistance to achieve that goal to die.

Petitioner stopped eating and was losing weight. To prevent her from starving herself to death, the medical staff inserted the subject tube against her will and contrary to her expressed instruction.[vii] Purpose of the tube is to artificially provide nourishment and hydration to keep her alive against her will. Her Counsel argue that her weight loss was not life threatening and therefore, the tube unnecessary.

The Trial Court found to the contrary and the Court of Appeals disagree based on the accepted principle that, “a patient has the right to refuse any medical treatment or medical service, even when such treatment is labeled “furnishing nourishment and hydration.” This right must be respected irrespective of whether its exercise, creates a life-threatening situation.

According to a finding by the Presidential Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research: “The voluntary choice of a competent and informed patient should determine whether or not life-sustaining therapy will be undertaken, just as such choices provide the basis for other decisions about medical treatment… Health care professionals serve patients best by maintaining a presumption in favor of sustaining life, while recognizing that competent patients are entitled to choose to forgo any treatments, including those that sustain life.”[viii]

The policy and statement of patients’ choices of treatment options, on the value of collaborative relationship between the patient and the physician, approved by the American Hospital Association declares in part: “Whenever possible, however, the authority to determine the course of treatment if any, should rest with the patient and the right to choose treatment includes the right to refuse a specific treatment or all treatment…”[ix]

Also, the Council on Ethical and Judicial Affairs of the American Medical Association in its statement entitled “Withholding or Withdrawing Life Prolonging Medical Treatment.” States in part: “The social commitment of the physician is to sustain life and relieve suffering. Where the performance of one duty conflicts with the other, the choice of the patient, or his family or legal representative if the patient is incompetent to act in his own behalf, should prevail.”[x]

Based on facts, Bouvia is competent, not comatose, intelligent, and understands the risk involved in forgoing life-sustaining treatment. The County hospital, its physicians and administrators, urge that the State’s interests prevail over Bouvia’s rights to refuse treatment. Their argument is based on the state’s interest in: (1) preserving life, (2) preventing suicide, (3) protecting innocent third parties, and (4) maintaining ethical standards of the medical profession, including the right of physicians to effectively render necessary and acceptable medical service and to refuse treatment to uncooperative patient… The Trial Court concluded that with continuous feeding, petitioner could live 15 to 20 years; therefore, placing the preservation of her life above her right to decide.

In so holding the Trial Court attached undue importance to the amount of time available to petitioner, and failed to give equal weight and consideration for the quality of that life, which is as well significant. According to the Court of Appeals, only Bouvia, as the patient lying helplessly in bed, unable to care for herself, may consider her existence meaningless. She cannot be faulted for so concluding and “if her right to choose may not be exercised because there remains to her, in the opinion of a court, a physician or some committee, a certain arbitrary number of years, months, or days, her right will have lost its value and meaning.”

The decision of Bouvia to forgo life-sustaining treatment belongs to her and not a medical decision for her physician to make. “Neither is it a legal question whose soundness is to be resolved by lawyers or judges. It is not a conditional right subject to approval by ethics committee or courts of law.” It is Bouvia’s decision alone to make as a competent adult. Being competent, she has the right to live the rest of her life in dignity and peace. Her condition is irreversible, there is no cure for her palsy or arthritis and she would have to depend on others for 15 to 20 years of pain if force-fed.

In its ruling that Bouvia be allowed to die the way she chose to die, the Court stated that it does not believe it is the policy of the state of California that all and every life must be preserved against the will of the sufferer. According to the court, it is incongruous for medical practitioners to assert their right to preserve the life someone else must live. It is not the policy of the state to inflict such a burden on anyone.

The court held that Elizabeth Bouvia’s right to refuse medical treatment even of the life-sustaining variety, entitles her to immediate removal of the nasogastric tube inserted into her body. The hospital and medical staff are still free to exercise their duty to ease her pain and suffering. They may not deny her relief from pain and suffering merely because she chose to exercise her fundamental right to protect her privacy. Her personal dignity is a part of her right to privacy. Therefore, as a competent person, Bouvia has the right to die the way she chose.[xi]

Tests for Competency

There are ways a court may determine the competency of a patient to make the decision to forgo or maintain treatment. The tests for competency fall into five categories: (1) The competent patient must show evidence of choice, preference for or against treatment, (2) The patient must show capacity to reach a reasonable, right, or responsible decision, (3) The choice must be based on rational reasons that is, whether the patient’s decision is a product of insanity, (4) The competent patient must show the ability to understand the risks, benefits, and alternatives to treatment, and (5) The competent patient is one with actual understanding of the course of treatment, one adequately informed who has demonstrated consent to treatment.[xii]

Patients Without Decisional Capacity

In the case of patients without decisional capacity, substituted judgment can be applied to carry out the patient’s wish or what is thought is in the best interest of the patient. Under the doctrine of substituted judgment, a guardian, committee or institution would attempt to determine what the patient would do if she had decisional capacity. Records of past statement made or expressed by the patient while with capacity, would be reviewed to find the choice she would make in such circumstances.

Statements made by the patient about the proposed treatment itself offers a strong argument about the patient’s choice and provides a constitutionally relevant information, about the incompetent patient’s wishes. Life sustaining treatment can be withdrawn from an incompetent patient, when it is clear that the patient would have refused the treatment under the circumstances involved.[xiii]

Where substituted judgment seems inefficient to protect the autonomy of an incompetent patient, the court may defer to the principle of beneficence by applying relevant state statutes to serve the best interest of the patient. The Uniform Healthcare Decision Act of 1994 provides a statutory framework for health-care decision-making. Under the Act, the use of Advance Directives is permissible as a form of legal statement expressing the incompetent patient’s wishes.[xiv]

Advance healthcare directives, is an instruction given by an adult or emancipated minor, which must take effect or be executed by a qualified representative, under certain circumstances. It gives instructions about the course of health-care treatment a person desires and want implemented on his behalf if peradventure, he becomes incompetent. The form also allows a person to express his wishes on donation of organs and the choice of a physician.

An adult or emancipated minor may also use a Power of Attorney for health-care directives. Such power “may authorize the agent to make any health-care decision the principal could have made while having capacity. The power must be in writing and signed by the principal.”[xv] It remains in effect irrespective of future lack of capacity and may include instructions.

Under the Act, a surrogate can make health-care decision for an adult person or emancipated minor in the case of incapacity. This takes effect if no agent or guardian is appointed or the agent or guardian is unavailable. Where there is no designee, “any member of the following classes of the patient’s family who is reasonably available, in descending order of priority, may act as surrogate: (1) the spouse, (2) an adult child, (3) a parent, or (4) an adult brother or sister.”[xvi]

Conclusion

While the United States Constitution does not specifically confer the right to die, the constitution recognizes the right to privacy as part of a patient’s right to accept or refuse medical treatment. Though, the right to die is nowhere in the constitution, the majority view is that such a right cannot be denied to a competent person or where there is clear and convincing evidence of competent statement made by the incompetent patient, when the patient had capacity.

CONFLICT OF INTEREST: NONE

References

[i] Cruzan v. Director, Missouri Department of Health; Supreme Court of the United States, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990)

[ii] Cruzan, supra

[iii] Ref. Bowers v. Hardwick, 478 U.S. 186, 194-195 (1986): Although many courts have held that a right to refuse treatment is encompassed by a generalized constitutional right of privacy, we have never so held. We believe this issue is more properly analyzed in terms of a Fourteenth Amendment liberty interest.

[iv] Cruzan, supra

[v] Cruzan, supra

[vi] Bouvia v. Superior Court, California Supreme Court of Appeal, Second District; 179 Cal.App.3d 1127, 225 Cal.Rptr. 297

[vii] Bouvia’s instructions were dictated by her Attorneys, written by them and signed by her by means of her making a feeble “X” on a paper with a pen she held in her mouth.

[viii] Presidential Commission for the Study of Ethical Problems in Medicine, Biomedical and Behavioral Research

[ix] The American Hospital Association Policy and Statement of Patients’ Choices of Treatment Option (1985)

[x] Withholding or Withdrawing Life Prolonging Medical Treatment: Council on Ethical and Judicial Affairs of the American Medical Association; March 15, (1986)

[xi] After confirmation of her right to die by the California Supreme Court, Ms. Bouvia changed her mind and opted for the medical care to keep her alive. She was still alive as of January 2004.

[xii] Loren H. Roth, Alan Meisel, and Charles W. Lidz, Tests of Competency To Consent To Treatment: 134 Am.J.Psychiatry 279 (1977)

[xiii] IN RE CONROY, Supreme Court of New Jersey: 98 N.J. 321, 486 A.2d 1209 (1985)

[xiv] Uniform Health-Care Decision Act, Section I.(1994)

[xv] Uniform Health-Care Decision Act, Section 2 (b) (1994)

[xvi] Uniform Health-Care Decision Act, Section 5 (b) (1994)

Adeyemi Oshunrinade [E. JD] is the author of  ‘Wills Law and Contests,’ ‘Constitutional Law-First Amendment’ and ‘SAVING LOVE’ available at http://www.amazon.com/author/adeyemioshunrinade. Follow on Twitter @san0670.

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