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Report No. 196

Having set out the head-note as it occurs in the law report, we shall now refer to certain other important principles laid down in the judgment delivered by Rehinquist C.J:

At Common Law, even the touching of one person by another without consent and without legal justification was a battery. The notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. Justice Cardozo, while on the Court of Appeals of New York, aptly described this doctrine:

"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 his patient's consent commits an assault, for which he will be liable in damages". Schloendoff vs. Society of New York Hospital: (1914) 211 NY 125. The informed consent doctrine has become firmly entrenched in American tort law.

The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is to refuse treatment. When In re Quinlan 70 NJ 10 was decided, there were a few cases of treatment being refused, but now during the years 1976-1988, there have been 54 reported cases. According to Prof Tribe, in his American Constitutional Law, (2nd ed. 1988), such a right is available under Common Law as also under the Constitutional law.

The right to self-determination was not lost because the patient was incompetent. It would be exercised by a 'surrogate' using a 'subjective' standard when there was clear evidence that the incompetent person would have exercised it. Where such evidence was lacking, an incompetent person's right could still be invoked under the 'objective' and 'best interests' standards.

The Fourteenth Amendment provides that no State shall 'deprive any person of life, liberty, or property, without due process of law'. It protects an interest in life as well as an interest in refusing life sustaining medical treatment. Where surrogates are not available or cannot take a decision, a State is entitled to guard against potential abuses and decline to make judgments about the 'quality' of life and simply assent an unqualified interest in preservation of human life to be weighed against the constitutionally protected interests of the individual.

The State of Missouri sought to advance these interests through the adoption of a 'clear and convincing' standard of proof to govern such proceedings. Such a higher standard is necessary to prevent erroneous decisions that may be made to terminate life which if they led to the death of the patient, the situation would be irreversible. An erroneous decision to withdraw life-saving treatment is not susceptible of correction.

The Court said: "In sum, we conclude that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state. We note that many Courts which have adopted some sort of substituted judgment procedure in situations like this, whether they limit consideration of evidence to the prior expressed wishes of the incompetent individual or whether they allow more general proof of what the individual's decision would have been, require a clear and convincing standard of proof of such evidence."

In this case, the testimony adduced at trial consisted primarily of Nancy Cruzan's statements, made to a house-mate about a year before her accident, that she would not want to live, should she face life as a 'vegetable', and she is said to have made other observations to the same effect. The observations did not deal in terms with withdrawal of medical treatment or of hydration and nutrition.

The parents of Cruzan would qualify for being persons who could make the 'substituted judgment' if a State permitted or required such a judgment but there is no acceptance that the view of close family members will necessarily be the same as the patient's would have been, had she been confronted with the prospect of her situation while competent. The State law required the clear and convincing evidence of the patient's wishes rather than confine the decision to close family members. (The case obviously was treated as not raising surrogate rights).

Sandra Day O'Connor, in her concurring Judgment, made it clear that the case before the Court did not have to do with the validity of a surrogate's decision. Having said that, she referred to the modern techniques of ventilator and artificial nutrition as amounting to administering 'medical treatment' and that the Due Process Clause protects a patient's right to refuse such 'medical treatment'. As to surrogates, States could require a clear and convincing evidence standard.

The patient's appointment of a proxy to make a proxy to make healthcare decision has been accepted by several States and that some Courts are also accepting such a procedure of appointment by a durable power of attorney. Some States allow an individual to designate a proxy to carry out the intent of a living will. Giving effect to a proxy's decisions may also protect the 'freedom of personal choice in matters of family life' as stated in Cleveland Board of Education vs. La Flem (1974) 414 US 632.

She pointed out that at least 13 States (details of which she gave in fn 2) and District of Columbia have passed statutes that durable powers of attorney could be issued authorizing appointing of proxies for making health care decisions. (Most of these States started in 1989). Thirteen States have 'living will' statutes authorizing the appointment of health care proxies.

Scalia J, in a concurrent judgment traced the history of illegality of suicide and assisted suicide over centuries but observed that the right to refuse treatment was based on the dichotomy between action and inaction. He said:

"Suicide, it is said, consists of an affirmative act to end one's life; refusing treatment is not an affirmative act 'causing' death, but merely a passive acceptance of the natural process of dying. I readily acknowledge that the distinction between action and inaction has some bearing upon the legislative judgment of what ought to be prevented as suicid.- though even there, it would seem to me unreasonable to draw the line precisely between action and inaction, rather than between various forms of inaction.

It would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide, or that one may not intentionally lock oneself into a cold storage locker but may refrain from coming indoors when the temperature drops below freezing. Even as a legislative matter, in other words, the intelligent line does not fall between action and inaction, but between those forms of inaction that consist of abstaining from 'ordinary' care and those that consist of abstaining from 'excessive' or 'heroic' measures. Unlike action vs inaction, that is not a life to be discerned by logic or legal analyses and we should not pretend that it is."

"It is not surprising, therefore, that the early cases considering the claimed right to refuse medical treatment dismissed as specious, the nice distinction between "passively submitting to death and actively seeking it. The distinction may be merely verbal, as it would be if an adult sought death by starvation instead of a drug. If the State may interrupt one mode of self-destruction, it may with equal authority interfere with the other. John F. Kennedy Memorial Hospital vs. Heston (1971) 58 N.J. 576; see also Application of President & Directors of Georgetown College Inc: (1964) 118 US App. DC-80: 331 F 2d 1000.

The third asserted basis of distinctio.- that frustrating Nancy Cruzan's wish to die in the present case requires interference with her bodily integrit.- is likewise inadequate, because such interference is impermissible only if one begs the question whether refusal to undergo the treatment on her own, is suicide. It has always been lawful not only for the State, but even for private citizens to interfere with bodily integrity to prevent a felony. That general rule has of course been applied to suicide. At Common Law, even a private person's use of force to prevent suicide was privileged.

It is not even reasonable, much less required by the Constitution, to maintain that, although the State has the right to prevent a person from slashing his wrists, it does not have the powers to apply physical force to prevent him from doing so, nor the power, should he succeed, to apply, coercively, if necessary, medical measures to stop the flow of blood. The state-run hospital, I am certain, is not liable under 42 U.S.C. 1983 for violation of constitutional rights, nor the private hospital liable under general tort law, if, in a state where suicide is unlawful, it pumps out the stomach of a person who has intentionally taken an overdose of barbiturates, despite that person's wishes to the contrary".

Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back

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