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.     

The incompetent developmentally disabled person's right of self-determination: right-to-die, sterilization and institutionalization

The developmentally disabled, specifically those mentally incompetent from birth, are entitled to a full panoply of constitutional rights and protections. These rights include the right to terminate life-sustaining treatment, the right of procreative integrity and the right not to be involuntarily institutionalized. However, the mentally incompetent developmentally disabled are generally unable to exercise these rights. This Note asserts first that proper procedural safeguards are necessary to guarantee the exercise of these constitutional rights by the incompetent disabled individual. Second, the Note focuses upon how best to preserve the disabled person's autonomy. The Note subsequently rejects the substituted judgment standard as a legal fiction, and endorses the best interest test which necessarily comports with the evidence, and properly accounts for the disabled person's incompetency.     

Jones v. Gerhardstein: the involuntarily committed mental patient's right to refuse treatment with psychotropic drugs

The question of whether an involuntary committed mental patient has a fundamental right to refuse treatment with psychotropic drugs continues to be a subject of much debate. Over the past twenty-five years, psychotropic drugs have become the most common form of treatment for the mentally ill. For many patients, these drugs provide substantial benefits; for others, however, they produce severe, sometimes debilitating, side effects. Because of the possibility of serious harm to the patient and because of the potential for abuse of drug treatment by psychiatric staffs, the mental health bar generally has argued for increased procedural protection for mental patients. In Jones v. Gerhardstein, the Wisconsin Supreme Court responded to these concerns by requiring that a judicial hearing be held on the issue of a patient's competency to refuse treatment before the attending physician may administer medication without the patient's consent. This Note discusses the controversy between the legal and medical communities over treatment refusal by mentally ill patients in light of the impact of the Jones decision on institutional practice and on refusing patients. The author argues that the strictly rights-based analysis used by the Jones court has done little to benefit involuntarily committed mental patients. The author suggests alternative ways of approaching treatment refusal that might be more responsive to the distinctive needs of the mentally ill.     

Nursing home quality-of-care cases after Mikes v. Straus

The quality of care rendered to residents of nursing facilities continues to gain attention from legislators, regulators, and the courts. Advocates for improvements in the quality of care by government-funded healthcare providers have identified the False Claims Act (FCA) as a potent tool. The Second Circuit decision in Mikes v. Straus might be viewed as a barrier to FCA claims against nursing facilities. Any impediment imposed by this decision, however, is limited by the facts of the case; the authors believe that carefully-crafted pleadings can enable litigants to rely upon the FCA in pursuing quality-of-care claims against nursing facilities.     

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.     

Deaths involving buprenorphine: a compendium of French cases

Buprenorphine at high dosage became available in France in 1996, as a substitution treatment for heroin addicts. Since this date, numerous deaths were attributed to this drug. This paper reports two original series of 39 and 78 fatalities involving buprenorphine observed at the Institute of Legal Medicine of Strasbourg and at 13 other French forensic centers, respectively. The files were recorded from January 1996-May 2000. The first 20 fatalities that were previously published were excluded from this epidemiological study. From these 117 subjects, 96 were male (82%). Buprenorphine and its primary metabolite norbuprenophine were assayed in post-mortem blood by HPLC/MS (n=11 labs) or by GC/MS (n=3 labs). Blood levels for buprenorphine ranged from 0.5 to 51.0ng/ml (mean 10.2ng/ml) and 0.1 to 76ng/ml (mean 12.6ng/ml) in Strasbourg and the other centers, respectively. Blood levels for norbuprenorphine ranged from 0.2 to 47.1ng/ml (mean 8.2ng/ml) and <0.1 to 65ng/ml (mean 10.6ng/ml) in Strasbourg and the other centers, respectively. The mean values appear to be within the therapeutic range. Buprenorphine was identified in 24 of the 26 hair samples assayed in Strasbourg, at concentrations ranging from 10 to 1080pg/mg. Intravenous injection of crushed tablets, a concomitant intake of psychotropics (especially benzodiazepines and neuroleptics) and the high dosage of the buprenorphine formulation available in France appear as the major risk factors for such fatalities. In addition, two suicide-related deaths were also observed, with blood buprenorphine concentrations at 144 and 3276ng/ml.