Hostname: page-component-848d4c4894-p2v8j Total loading time: 0.001 Render date: 2024-05-15T08:59:53.872Z Has data issue: false hasContentIssue false
  • English
  • Français

The Values History: An Innovation in Surrogate Medical Decision-Making

Published online by Cambridge University Press:  29 April 2021

Pam Lambert ,
Joan McIver Gibson  and
Paul Nathanson
Get access Rights & Permissions [Opens in a new window]

Extract

In the United States we prize our freedom as individuals to make our own decisions, however unwise they might seem to others. This devotion to the principle of autonomy (from the Greek “autos” meaning self and “nomos” meaning rule) is obvious in our legal system as well as in a variety of social rules and customs that govern our daily lives.

Difficulties arise, however, when we lose, either temporarily or permanently, the capacity to make our own decisions. Ideally we would have planned ahead for possible incapacity in order to retain control over the future course of our lives. Unfortunately the ideal situation rarely exists. Most of us avoid anticipating the possibility of our own incapacity, and by implication, loss of control. Until recently attention has not been paid to developing and supplying accessible and understandable information about advance directives that could assist us in such planning. And most of us still prefer (or at least resort to) informal, often uninformed, family decision-making arrangements.

Type
Article
Information
Law, Medicine and Healthcare , Volume 18 , Issue 3 , Fall 1990 , pp. 202 - 212
Copyright
Copyright © 1990 American Society of Law, Medicine & Ethics

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

See High, D., “All in the Family: Extended Autonomy and Expectations in Surrogate Health Care Decision-Making”, The Gerontologist 28 Supp. (1988): 46–51.CrossRefGoogle Scholar
The right of competent adults to accept or refuse medical treatment, including life-sustaining treatment, has become a settled principle in the common law since the seminal California cases of Bartling v. Superior Court, 163 Cal.App.3d 186, 209 Cal.Rptr. 220 (1984), and Bouvia v. Superior Court, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986). See, e.g., the discussion in Matter of Conroy, 486 A.2d 1209 (N.J. 1985) at 1221–1226. Although courts generally qualify this right as subject to certain enumerated state interests (preservation of life, prevention of suicide, integrity of the medical profession, and protection of third parties), no reported case has held any of these interests sufficient to outweigh the right of a competent person to terminate medical treatment. See Pollock, S., “Life and Death Decisions: Who Makes Them and By What Standards?” Rutgers Law Review 41 (1989): 505–540.Google Scholar
See, e.g., Re Jobes, 529 A.2d 434 (N.J. 1987); Gray v. Romero, 697 F. Supp. 580 (D.R.I. 1988); McConnell v. Beverly Enterprises-Connecticut, Inc., 553 A.2d 596 (Conn. 1989). The one court to decide against the trend, the Missouri Supreme Court, ruled that the state's interest in life outweighs any right of a guardian to authorize the withdrawal of artificial nutrition and hydration from an incompetent, non-terminally ill patient, especially given the uncertainty of the patient's prior expressions and her own “right to life”. Cruzan v. Harmon, 760 S.W.2d 408 (Mo.banc 1988). The United States Supreme Court granted certiorari in this case and affirmed the Missouri court's decision.Google Scholar
President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment: Ethical, Medical, and Legal Issues in Treatment Decisions (1983); The Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying (1987).Google Scholar
Dresser, Compare R., “Life, Death, and Incompetent Patients: Conceptual Infirmities and Hidden Values in the Law”, Arizona Law Review 28 (1986): 373–405, with Oleman, D., “Fear of Death Intensifies Moral Code, Scientists Find”, The New York Times (December 5, 1989): B5.Google Scholar
Information from the Society for the Right to Die, New York, New York, December 20, 1989.Google Scholar
See Zweibel, N. and Cassel, C., “Treatment Choices at the End of Life: A Comparison of Decisions by Older Patients and Their Physician-Selected Proxies”, The Gerontologist 29 (1989): 615–621, and studies cited therein.CrossRefGoogle Scholar
Davidson, K., Hackler, C., Caradine, D. and McCord, R., “Physicians' Attitudes on Advance Directives”, Journal of the American Medical Association 262 (1989): 2415–2419.Google Scholar
McCrary, S. and Botkin, J., “Hospital Policy on Advance Directives: Do Institutions Ask Patients About Living Wills?” Journal of the American Medical Association 262 (1989): 2411–2414.CrossRefGoogle Scholar
See Zweibel, N. and Cassel, C., supra note 7, and studies cited therein.Google Scholar
Diamond, E., Jernigan, J., Moseley, R., Messina, V. and McKeown, R., “Decision-Making Ability and Advance Directive Preferences in Nursing Home Patients and Proxies”, The Gerontologist 29 (1989): 622–626; see also Wetle, T., Levkoff, S., Cwikel, J. and Rosen, A., “Nursing Home Resident Participation in Medical Decisions: Perceptions and Preferences”, The Gerontologist 28 (1988): 32–38.CrossRefGoogle Scholar
Zweibel, N. and Cassel, C., supra note 7; Uhlmann, R., Pearlman, R. and Cain, K., “Physicians' and Spouses' Predictions of Elderly Patients' Resuscitation Preferences”, Journal of Gerontology: Medical Sciences 43 (1988): 115–121.Google Scholar
The National Values History Project, an 18-month project at the Institute of Public Law from 1988–90, was funded by a grant from the Ittleson Foundation.Google Scholar
The Medical Treatment Guardian Program, a 12-month project at the Institute of Public Law from 1987–88, was funded by a grant from the Retirement Research Foundation as part of its Personal Autonomy in Long Term Care Initiative.Google Scholar
This is also the name of a different type of form developed by David Doukas and Laurence McCullough in 1987. See Doukas, D. and McCullough, L., “Assessing the Values History of the Elderly Patient Regarding Critical and Chronic Care”, in Handbook of Geriatric Assessment, Gallo, J., Reichel, W. and Anderson, L., eds. (Aspen Publications, 1988).Google Scholar
Compare with Arras, J., “The Severely Demented, Minimally Functional Patient: An Ethical Analysis”, Journal of the American Geriatrics Society 36 (1988): 938–944.Google Scholar
Emanuel, L. and Emanuel, E., “The Medical Directive: A New Comprehensive Advance Care Document”, Journal of the American Medical Association 261 (1989): 3288–3293.Google Scholar
Katz, J., The Silent World of Doctor and Patient (New York: The Free Press, 1984); Katz, J., “On Touching ‘The Happy Isles’: Reflections about Past, Future, and Present”, Law, Medicine & Health Care 17 (1989): 110–113.Google Scholar