Judicial postponement of death recognition: the tragic case of Mary O'Connor

A recent New York Court of Appeals decision seriously impedes the ability of incompetent patients to control their medical care. In the case of Mary O'Connor, the court virtually eliminated an incompetent's rights to bodily integrity and privacy. The court relied on formalistic evidentiary arguments to vitiate the patient's refusal of death-prolonging treatment. This Case Comment examines both the doctrine and policy underlying the O'Connor decision, suggesting that the court erred in its holding and reasoning. An alternative framework is presented, arguing that courts should honor competently expressed patient decisions concerning medical treatment. New York's highest court, instead, posited an incompetent patient who becomes competent for a moment to render a decision. This legal fiction is nothing more than a thinly masked technique for imposition of the judges' values on the patient. This Case Comment argues that in the absence of clear direction from the patient, family and loved ones generally should make care decisions for the patient.     

The impact of the right to refuse treatment in a forensic patient population: six-month review

In December of 1987, the Wisconsin supreme court held that all involuntarily committed mental patients in the state had the right to refuse psychotropic medication unless a court held that they were incompetent to make treatment decisions. The authors studied the effects of this decision in a 165-bed forensic hospital over the first six months after implementation of the decision. They found that 29 percent of patients already on psychotropic medication initially refused further treatment as opposed to 75 percent of newly admitted patients. Of refusers, 32 percent eventually resumed taking medication voluntarily; courts overturned the refusals of all the 51 percent who maintained their refusals, after an average delay of over a month. The length of procedural delays actually increased over the six months of the study as the courts learned of the decision. The authors compare their findings with other reported studies of implementation of right to refuse treatment decisions and discuss differences between the right to refuse treatment for civilly and criminally committed patients.     

Crisis of conscience: reconciling religious health care providers' beliefs and patients' rights

In this note, Katherine A. White explores the conflict between religious health care providers who provide care in accordance with their religious beliefs and the patients who want access to medical care that these religious providers find objectionable. Specifically, she examines Roman Catholic health care institutions and HMOs that follow the Ethical and Religious Directives for Catholic Health Care Services and considers other religious providers with similar beliefs. In accordance with the Directives, these institutions maintain policies that restrict access to "sensitive" services like abortion, family planning, HIV counseling, infertility treatment, and termination of life-support. White explains how most state laws protecting providers' right to refuse treatments in conflict with religious principles do not cover this wide range of services. Furthermore, many state and federal laws and some court decisions guarantee patients the right to receive this care. The constitutional complication inherent in this provider-patient conflict emerges in White's analysis of the interaction of the Free Exercise and Establishment Clauses of the First Amendment and patients' right to privacy. White concludes her note by exploring the success of both provider-initiated and legislatively mandated compromise strategies. She first describes the strategies adopted by four different religious HMOs which vary in how they increase or restrict access to sensitive services. She then turns her focus to state and federal "bypass" legislation, ultimately concluding that increased state supervision might help these laws become more viable solutions to provider-patient conflicts.     

When a Child Rejects a Parent: Working With the Intractable Resist/Refuse Dynamic

A subgroup of intractable families, in which a child refuses postseparation contact with a parent, perplexes and frustrates professionals who work with them. This article discusses the underlying forces that drive the family's intractability, as well as guidelines for working with the family. The guidelines include specific court orders developed from the very beginning of the case that elaborate the court's stance about goals and expectations for the family, along with specialized individual and family therapies that are undertaken within a framework of planned collaboration with the court. The collaborative team of legal and mental health professionals works in an innovative and active way to structure, support, and monitor the family's progress in resolving the resist/refuse dynamic.     

Surrogate decision-making for incompetent elderly patients: the role of informal representatives

Informal or unofficial representation refers to the practice (more common in some European jurisdictions than in others), that persons not designed by a court or by the patient himself, make medical decisions on the patient's behalf in case of their incompetence. If the law provides for this, it is usually next of kin (spouse, children, brothers and sisters, etc.) who are allowed to act in such a capacity. Informal representation raises several questions. Are family members always familiar with what their relative would have wished, ready to take responsibility, and not too much reigned by their emotions? The basic legal concern is whether there are sufficient procedural and other safeguards to protect the incompetent patient from representatives who do not serve their best interests. In addressing these issues, after a brief survey of the law in the Netherlands as compared with that in Belgium, Germany and England/Wales, we will argue that informal representation as such is not at variance with international and European standards. However, an 'informal' approach to surrogate decision-making should always go together with sufficient protection of the incompetent patient, including procedural safeguards with regard to the decision that the patient is incompetent, limits to the decision-making power of informal representatives and effective forms of conflict resolution.     

Limits of guardian treatment refusal: a reasonableness standard

The debate concerning the legal and ethical bases of guardian refusal of medical treatment on behalf of incompetent patients often ignores critical distinctions among types of patients and guardians. For example, patients who have expressed preferences regarding treatment while competent are distinguishable from patients who have always lacked the competency requisite to expressing a treatment preference. "Bonded guardians," whose relationship with the patient preexisted guardianship, should have a different role in the decision-making process than "non-bonded guardians," who were strangers to the patient prior to the guardian-ward relationship. This Article proposes criteria for guardian treatment refusal on behalf of incompetent patients. Under the model for guardian decision making presented here, bonded guardians should be preferred over non-bonded guardians, and bonded guardians should be allowed discretion to make treatment choices, limited only by a standard of reasonableness policed by the courts. The Author presents legal and ethical justifications for the bonded guardian's heightened role. Finally, he considers the proper roles of health professionals, hospital ethics committees, and judges in the decision-making process.     

论民事证人拒不出庭作证的法律制裁

对民事证人拒不出庭作证予以法律制裁,是证人出庭作证制度的重要内容之一。由于我国《民事诉讼法》对此没有规定,最新司法解释亦未补充,司法实践中便无法操作,这成为我国证人出庭率偏低的重要原因。文章结合国外立法例,对目前学界提出的几种对拒不出庭证人的制裁措施逐一分析:排除证据使用,符合我国目前审判方式改革潮流及证人证言证据的特点;承担诉讼费用亦符合民事诉讼的本质;罚款是国内外普遍接受的方式;拘传与拘留在我国目前有其存在的必要性;刑罚制裁则不符合我国的实际情况,不宜采用。     

Reconciling Quinlan and Saikewicz: decision making for the terminally ill incompetent

One of the most perplexing problems in the medicolegal field concerns the criteria on which decisions not to treat terminally ill incompetent patients should be made. These decisions traditionally have been made by physicians in hospitals--sometimes with the assistance of the patient's family--on the basis of their perceptions of the patient's "best interests." Recently, two state supreme courts have ruled on this question. The New Jersey Supreme Court, in the Quinlan case, developed a medical prognosis criterion, and permitted the patient's guardian, family, and physicians to apply it with the concurrence of a hospital "ethics committee." The Massachusetts Supreme Judicial Court, in the Saikewicz case, adopted, on different facts, the test of "substituted judgment" to be applied by a probate court after an adjudicatory hearing. The two cases have been interpreted by many in the medical profession as representing conflicting viewpoints--one supportive of traditional medical decision making and the other distrustful of it. It is the thesis of this Article that Quinlan and Saikewicz are in fundamental agreement and can be reconciled by the next state supreme court that rules on this question. Both courts enunciate a constitutional right to refuse life-sustaining treatment, based on the right to privacy. They agree that incompetents should be afforded the opportunity to exercise this right, and that certain state interests can overcome it. They agree also that physicians should be permitted to make medical judgments, and that societal judgments belong in the courts. The differences in how the opinions are perceived result from the interplay of several factors: the differences in the facts of the cases; the inarticulate use of the term "ethics committee" by the Quinlan court; the literal interpretation of the role of such a committee by the Saikewicz court; a desire for 100 percent immunity on the part of physicians and hospital administrators in Massachusetts; and advice from their counsel on how such immunity can be guaranteed. It is the author's hope that this Article will help to dispel much of the misinformation surrounding these two cases, and to refocus the debate on how decisions should be made for the terminally ill incompetent patient on the real issues regarding criteria and the decision-making process that remain to be resolved.     

Dr. Jekyll's waiver of Mr. Hyde's right to refuse medical treatment: Washington's new law authorizing mental health care advance directives needs additional protection

Mental health care advance directives are gaining popularity nationwide. Following a growing trend, the Washington State Legislature has recently passed a law allowing patients to draft mental health care advance directives that could be irrevocable. Patients who sign an irrevocable directive essentially waive their fundamental right to refuse treatment in the future. The United States Supreme Court has held that waivers of fundamental rights must be made knowingly, voluntarily, and intelligently. However, as passed, Washington's new law contains insufficient safeguards to guarantee such a waiver. This Comment proposes that the Washington State Legislature amend this law the require two additional protections: a "rights advocate" to explain the potential waiver of rights, and a written warning in the advance directive form. These safeguards will help ensure that patients make knowing and intelligent waivers of their fundamental right to refuse treatment.     

Adolescents and mental disorder: who consents to treatment?

Although English law recognises that developing adolescents may acquire the capacity to make decisions about medical treatment themselves it does not address the problem of mentally disturbed or disordered adolescents. This article examines the nature of adolescent refusal of treatment and suggests that a line be drawn between three categories of adolescent disturbance--the competent young person who refuses treatment that an adult too may refuse, the rebellious teenager whose refusal is triggered by simple teenage angst, and the mentally ill teenager whose refusal is triggered by mental illness. It suggests that adolescent autonomy needs to be more fully understood and the Mental Health Act more readily used in treating young people.     

The right to refuse treatment: An application of the economic principles of decision-making under uncertainty

When courts do not defer to professional judgment, alternative ways must be used to make treatment decisions for persons who are deemed incompetent. Rather than impose the preferences of society on the mentally ill individual, courts have favored alternative procedures. The two most common approaches are substituted judgment and best interests. In using both the substituted judgment standard and the best interest standard the guardian of a patient who is judged incompetent to make a treatment decision tries to make the decision the patient would have made, had he been competent. The guardian must consider the individual's attitude toward risk in making this assessment. Substituted judgment can be used when clear and convincing evidence of the patient's preferences exists. The evidence would come from a study of the patient's expressed attitudes towards medical treatment and behavior before he or she became incompetent. This approach is effective only if the patient has revealed his or her preferences toward relevant medical treatment in the past. The best interest standard is used when no clear and convincing evidence of the patient's treatment preferences exists. The treatment decisions of competent patients whose characteristics are similar to the incompetent patient's, and who have faced a similar situation, can be used as a proxy for the decision the incompetent patient would have made. Using the choice function of similar people may make it possible to develop a reasonably objective basis for determining what course of action is in the patient's best interest.     

Medicaid and access to child health care in Chicago.

In this article we examine how increasing the reimbursement of physicians and expanding Medicaid eligibility affect access to care for children in Cook County, Illinois, which overlies Chicago. Using Medicaid claims and other data at the zip-code level, we compare the places where Medicaid children live with the places where all the physicians who treat children and those who accept Medicaid patients have their practices. Our findings suggest that the recent changes in legislation are unlikely to benefit extremely poor children, who are more likely to live in depressed inner-city areas, where there are few physicians. "Near-poor" children whose homes are dispersed throughout the county, who are now eligible for Medicaid as a result of the recent changes, are likely to see improvements in their access to care. Further changes in policy, aimed at enhancing the capacity of institutions providing care, could improve access for the children of the inner city.     

Management of forensic psychiatry patients who refuse medication--two scenarios

An Ohio federal court set Wyatt-type standards for treatment rights of forensic psychiatry patients and ordered legal due process-type hospital hearings to protect patients from what the court considers harmful clinical practices. Experience with this legal method for management of patients who refuse medication is examined for its impact on staff and patient care. Under legal pressure Ohio has built new regional forensic psychiatry hospitals. In one, spurred by legal activism, the prevalence of patients refusing medication has become pandemic. In its typical 16-bed ward, when 2 or more patients refuse medication, danger escalates rapidly for patients and staff. The method adopted to manage these situations is to assess the emergency of danger to patient or others, and if warranted to administer medication despite objections. This emergency management is dramatic in improving patient behavior and defusing milieu tensions. The psychiatrist ordering emergency management, however, faces challenges from several quarters--patient advocates, outside patients' rights legal advocates, and the commissioner of mental health. The clinically managed process contrasts markedly also with the legally imposed one in its impact on the personal and professional integrity of the responsible psychiatrist. Both scenarios illustrate the task yet remaining--integration of the clinical and legal concerns into a multisystem resolution of diverse interests, values, ethics, and rights.     

Supreme Court of Canada's “Beautiful Mind” case

The Supreme Court of Canada's (SCC) first case involving capacity and the refusal of involuntary psychiatric treatment involved a self described “professor” who had been referred to as “Canada's Beautiful Mind”. He had been found not criminally responsible on account of mental disorder for uttering death threats. While considered incapable of making a treatment decision by psychiatrists and a review board, three levels of court, including the SCC, found him to be capable. “Professor” Starson therefore continued to refuse treatment for his psychosis and spent over seven years detained because he refused the treatment required to become well enough to be released. This refusal of treatment is permitted under Ontario law, although it is not permitted in some other Canadian provinces, and in many other countries.This article describes Starson's situation, Ontario's law with respect to consent to treatment and relevant Canadian constitutional and criminal law. It provides an analysis of the Consent and Capacity Board decision and the court appeals. Implications from Starson's case are analyzed in relation to what happened to Starson, human rights and comparative law pertaining to involuntary patients' refusal of treatment, especially their relevance to the Canadian Charter of Rights and Freedoms, and laws in some other countries. Many Canadian and foreign jurisdictions where laws apparently accord with human rights codes do not allow a person to refuse the treatment required to restore their liberty. We conclude that a law that allows a person with a mental illness to be incarcerated indefinitely in a “hospital” because needed psychiatric treatment cannot, by law, be provided is not justifiable in a caring democratic jurisdiction.     

Special report on patient care. New OBRA 1990 requirements regarding advance directives

The provisions of OBRA 1990 regarding advance directives reflect a heightened awareness in Congress of the need to recognize individual rights and preferences in the provision of health care. In the wake of recent decisions such as Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841 (1990) (see Newsletter, Vol. 5, No. 9, September 1990, at 12), holding that state law governs the right of a surrogate to order the discontinuation of medical treatment for an incompetent patient, it is likely to remain true for the foreseeable future that differing state laws on the subject of advance directives will create confusion for some patients, particularly those unaware of the laws of their state, those living near the border between two states, and those traveling between states for medical treatment. For such patients, the provisions of OBRA 1990 may help to ensure that state laws governing advance health care decisions are explained at the time of treatment.     

Gardner; Re BWV: resolved and unresolved issues at end of life

The Medical Treatment Act 1988 (Vic) gives statutory recognition to a patient's (or their agent or guardian if incompetent) right to refuse medical treatment. The case of Gardner; Re BWV confirmed that medical treatment as defined under the Act included artificial nutrition and hydration and as such could be withdrawn, notwithstanding that this would result in the patient's death. This article analyses Gardner; Re BWV and argues that, by deliberately dealing narrowly with the issues at hand, both the Victorian Civil and Administrative Tribunal at first instance and the Victorian Supreme Court knowingly left BWV to die from dehydration over a period of weeks. By not addressing these issues, the tribunal, and more particularly the Supreme Court, lost an opportunity for a reform of the law, so urgently needed at end of life, which would have allowed for "mercy killing", thus sparing BWV and her family the lingering death she was given.     

Incompetent misdemeanants--pseudocivil commitment

Prior to Jackson v. Indiana, psychiatric hospitalization of those found to be incompetent to stand trial often led to an inordinately long confinement, a particularly invidious consequence if the patient had been accused only of a misdemeanor. After a highly publicized murder perpetrated by a patient originally in this category, New York State instituted a rather cumbersome set of procedures designed to assure several layers of review, including involvement of the legal system, prior to increasing privileges or discharging someone committed pursuant to a criminal court order. The effect of this new law on patient care is examined by looking at the hospital course of 52 incompetent misdemeanants at one state facility. They are demographically and clinically quite similar to a control group of persons civilly committed, except for an increased length of inpatient stay. When compared with those sent to the county penitentiary after conviction, the study population differs on several important parameters. Looking like a patient, the incompetent misdemeanant is, however, treated more as a criminal with no indication that public safety is thereby increased or that individual therapeutic objectives are enhanced.     

Unwarranted variations in the quality of health care: can the law help medicine provide a remedy/remedies?

This Article reviews the essential findings of studies of variations in quality of care according to three categories of care: effective care, preference-sensitive care, and supply-sensitive care. It argues that malpractice liability and informed consent laws should be based on standards of practice that are appropriate to each category of care. In the case of effective care, the legal standard should be that virtually all of those in need should receive the treatment, whether or not it is currently customary to provide it. In the case of preference-sensitive care, the law should recognize the failure of the doctrine of informed consent to assure that patient preferences are respected in choice of treatment; we suggest that the law adopt a standard of informed patient choice in which patients are invited, not merely to consent to a recommended treatment, but to choose the treatment that best advances their preferences. In the case of supply-sensitive care, we suggest that physicians who seek to adopt more conservative patterns of practice be protected under the "respectable minority" or "two schools of thought" doctrine.     

Deciding about life-support: a perspective on the ethical and legal framework in the United Kingdom and Australia

This article is concerned with the legal right of health service providers to decide whether to provide life-prolonging treatment to patients. In particular, an examination of recent decisions by the English Court of Appeal in R (Burke) v General Medical Council (Official Solicitor and Others Intervening) [2005] EWCA Civ 1003 and the European Court of Human Rights in Burke v United Kingdom (unreported, ECHR, No 19807/06, 11 July 2006) is provided. An analysis of Australian case law is undertaken together with a consideration of the limits of a patient's legal right of autonomy in relation to choosing life-prolonging medical treatment; the basis upon which such treatment can be legally withdrawn or withheld from an incompetent patient against the patient's earlier expressed wishes that it should be continued or initiated; the concept in ethics and law of a patient's best interests; and the role of courts in adjudicating disputes about the continuation of treatment in light of the recent decisions.     

THE BEST SEAT IN THE HOUSE: THE COURT ASSIGNMENT AND JUDICIAL SATISFACTION

A survey of 355 judges examined the differences in judicial satisfaction between those assigned to problem-solving courts—such as drug treatment and unified family—and judges in other more traditional assignments such as family law and criminal courts. The unified family court systems, like drug treatment courts, have generally adopted the principles of therapeutic jurisprudence. Significant differences were found on each of the three survey scales: (1) helpfulness, (2) attitude toward litigants, and (3) positive effects of assignment. The judges who were in the problem-solving courts (drug treatment and unified family court) scored higher on all three scales than those who were not (traditional family and criminal court). The group of problem-solving court judges consistently scored higher than the other group of judges, with the drug treatment court judges scoring the highest. The group of traditional criminal court and family court judges scored less positively, with the criminal court judges having the lowest scores. The problem-solving court judges were more likely to report believing that the role of the court should include helping litigants address the problems that brought them there and were more likely to observe positive changes in the litigants. They were also more likely to believe that litigants are motivated to change and are able to do so. They felt more respected by the litigants and were more likely to think that the litigants were grateful for help they received. The problem-solving court judges were also more likely to report being happy in their assignments and to believe that these assignments have a positive emotional effect on them.