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Identifying Appropriate Decision-Makers and Standards for Decision
Published online by Cambridge University Press: 29 April 2021
Extract
Judges, like lawyers, love to make disclaimers. So, at the outset, I disclaim any expertise in medicine or bioethics. My views are those of a generalist, a judge who has been required to decide cases involving bioethical questions such as the termination of medical treatment.
As Chief Judge Wachtler has explained, the New York Court of Appeals, like the Supreme Court of Missouri in Cruzan, has decided to require clear and convincing evidence before permitting the termination of life-sustaining treatment for an incompetent patient who is not terminally ill. Other courts, including the New Jersey Supreme Court, have reached a different conclusion.
It is not my purpose today to persuade you that the position of our court is correct. Instead, I propose to look at the Cruzan case to see what it does and does not tell us about the identity of the decision-maker and the standard for decision-making in the termination-of-medical-treatment cases.
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References
Remarks by the Honorable Sol Wachtler, Chief Judge of the New York Court of Appeals, Conference on Medical Decision-Making and the Right to Die After Cruzan, Washington, D.C. (September 15, 1990).Google Scholar
Matter of Westchester County Medical Ctr, 72 N.Y.2d 517, 530–31, 531 N.E. 2d 607, 613 (1988).Google Scholar
See e.g. Matter of Jobes, 108 N.J. 394, 418–20, 529 A.2d 434, 445–47 (1987) (subject to medical confirmation procedures, right of patient in irreversibly vegetative state to refuse life-sustaining treatment may be exercised by patient's family or close friend); Conservatorship of Drabick, 200 Cal. App.3d 185, 208, 245 Cal. Rptr. 840, 855–57, cert. denied, —U.S.—, 109 S.Ct. 399, 102 L.ED.2d 387 (1988) (patient's conservator could order withdrawal of life-sustaining treatment if decision made in good faith based on medical advice and in conservatee's best interest).Google Scholar
Cruzan v. Director, Missouri Dept. of Health, 457 U.S.—, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990).Google Scholar
Id. at 2855–56.Google Scholar
Id. at 2856.Google Scholar
Id. at 2863–64 (Brennan, J., dissenting).Google Scholar
Id. at 2877 (Brennan, J., dissenting) (quoting Jobes, 108 N.J. at 416, 529 A.2d at 445).Google Scholar
Id. at 2877 (Brennan, J., dissenting).Google Scholar
Id. at 2858–59 (O’Connor, J., concurring)Google Scholar
Id. at 2854.Google Scholar
Id. at 2857 (O’Connor, J., concurring).Google Scholar
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Id. at 2854; see supra notes 10 to 14 and accompanying text.Google Scholar
Lord Winston Spencer Churchill, Speech at the Lord Mayor's Day Luncheon, November 10, 1942.Google Scholar
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But see The Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, 4206, 4751 (requiring health care providers to inform patients of the health care provider's policy and state law regarding advance directions and the right to refuse treatment).Google Scholar
United States Const. art. VI, 2.Google Scholar
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See Jobes, 108 N.J. at 418, n.11, 529 A.2d at 446 n.11; Gibbs, , Love and Let Die, Time, 62 (March 19, 1990); Cruzan, 110 S.Ct. at 2869 n.11 (Brennan, J., dissenting).Google Scholar
See PruneYard Shopping Center v. Robins, 447 U.S. 74, 81 (1980); see, e.g., Right to Choose v. Byrne, 91 N.J. 287, 310 (1982) (determining that the New Jersey Constitution, unlike the Federal Constitution, forbids withholding Medicaid funds for therapeutic abortions); State v. Alston, 88 N.J. 211, 226, 440 A.2d 1311, 1318–19 (1981) (holding that the New Jersey Constitution provides more protection against unreasonable searches and seizures than the United States Constitution); State v. Schmid, 84 N.J. 535, 557–60, 423 A.2d 615, 626–27, (1980) (finding more protection for freedom of speech in New Jersey Constitution).Google Scholar
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See Cruzan, 110 S.Ct. at 2869, n. 11 (Brennan, J., dissenting) (noting legislature action on right-to-die issues); Remarks by Fenella Rouse, J.D., Executive Director, Concern for Dying/Society for the Right to Die, Conference on Medical Decision-Making and the Right to Die after Cruzan, Washington, D.C., (September 14–15, 1990) (compiling legislation).Google Scholar