|
COPYRIGHT 2000 Harvard Society for Law and Public Policy, Inc.
[T]his case presents novel issues of fundamental importance that should not be resolved by mechanical reliance on legal doctrine.
--Superintendent v. Saikewicz(1)
The state has an interest in "maintaining the ethical integrity of the medical profession."(2) The U.S. Supreme Court recognized this proposition in its recent landmark "assisted suicide" decision, Washington v. Glucksberg.(3) Unfortunately, the Court did so in a way that could undermine the ethical integrity of the medical profession in this country, in cases ranging from the right to refuse treatment to assisted suicide, abortion, and the death penalty.
As discussed in this Article, the interest in the ethical integrity of the medical profession (EIMP for short) has been widely recognized by courts. These courts typically have done so in difficult cases at the margins of medical practice, where the powerful themes of death, ethics, and the powers of the state intersect. EIMP is a reasonable goal, and most citizens would probably agree that there is a state interest in ensuring that doctors maintain high standards of ethical conduct. Stated in that form (as what I will call the Societal Goal), EIMP is vitally important, and this Article discusses ways in which our courts and society at large can take steps to ensure it. But is this what the courts mean by EIMP? And how are states and courts supposed to maintain EIMP? Surprisingly, there are no clear answers to these questions; none of the dozens of jurisdictions that have asserted a state interest in EIMP have ever really explained what EIMP means or what would protect it.
What makes this ironic is that, as a result, EIMP--in the sense defined in the last paragraph--has not been maintained but rather has been threatened by these court decisions, regardless of their outcome. Instead of explaining what EIMP means, courts simply have cited earlier cases asserting a state interest in EIMP. The cited cases themselves do the same thing. The trail ultimately leads back to the landmark right-to-die case of Superintendent of Belchertown State School v. Saikewicz. However, the court in that case (whose self-conscious judicial activism was quoted above) simply made EIMP up out of whole cloth.
And so it goes. Judges make things up and their successors cite them blindly, even in cases involving the most serious matters of life and death. With EIMP, this combination of improvisation and mimicry has the effect of twisting courts' words until they achieve the opposite of what they say. The result--degrading doctors' standards of ethical conduct--is very dangerous indeed. This Article is an attempt to shine a light on this line of case law, and to suggest new and more effective ways to ensure that we as a society maintain high standards of medical ethics.
I. INTRODUCTION
The story of EIMP begins in 1977 with Superintendent v. Saikewicz,(4) the Massachusetts `right to refuse treatment' case that introduced EIMP as part of a state-interest calculus. Despite the Massachusetts Supreme Judicial Court's warning, quoted above, against "mechanical reliance on legal doctrine," many courts facing treatment-refusal and other life-and-death issues have blindly adopted the Saikewicz state-interest formula, including EIMP. Eventually, EIMP's path led to the Supreme Court in Glucksberg.
This Article has three themes. I first examine the origins, application, and consequences of the EIMP standard. Ironically, I contend, the articulation of a state interest in maintaining the "ethical integrity of the medical profession" has served to undermine the medical profession's ethical integrity.(5)
The second theme of this Article, subtler but just as important, is the tendency of courts to `mechanically rely on legal doctrine' rather than carefully scrutinize sources and their applicability.(6) As this Article traces the spread of EIMP into other jurisdictions as well as into other areas of law, the background of the analysis reveals how a single act of judicial activism (or judicial creativity, depending on one's point of view) can mushroom, distorting (or informing) an entire area of case law for decades.
The third theme, also subtle but significant, concerns courts' use of multi-factor balancing tests. When a factor like EIMP is part of a balancing test that includes weighty interests such as privacy and life, EIMP can easily get lost in the shuffle. Also, factors placed on the losing side of the balance are often ignored in making policy determinations when courts conceptualize justice as "scales." A better solution, I argue, is to attempt to maximize the sum of all relevant interests, what we might call "Justice as Optimizer."
Part II is a brief prologue, examining the Saikewicz case at its origins--the probate court--and highlighting the ironically questionable ethics of the doctors, lawyers, and judge in the case. This examination provides the background for Part III, where I take a detailed look at the murky origins of the ethical integrity standard in the Massachusetts Supreme Judicial Court's Saikewicz decision. In Part IV, I chronicle EIMP's application in dozens of death cases(7) in the two decades since Saikewicz. In Part V, I examine the use of the standard and its analogues in the areas of abortion, assisted suicide, and the death penalty. Part VI is devoted to analyzing the Supreme Court's decision in Glucksberg, in the context of the rest of this Article. In Part VII, I conclude with some proposed solutions to the outlined problems with EIMP and the judicial decision-making process. I will argue that EIMP should embody what I call the "Societal Goal," meaning it is important that we, as a society, guarantee that our doctors maintain high standards of ethical conduct, in part by ensuring broader societal input into defining what "ethical conduct" entails.
II. SAIKEWICZ IN THE PROBATE COURT--ETHICAL INTEGRITY PROLOGUE
On April 19, 1976, Joseph Saikewicz was diagnosed with acute myeloblastic monocytic leukemia.(8) Saikewicz's prognosis was for a relatively painless death, in a few months at the most. An alternative was for Saikewicz to undergo difficult and uncomfortable treatments of chemotherapy, which had a 30 to 50 percent chance of success (probably closer to the lower bound, given Saikewicz's age of sixty-seven). "Success" meant remission, which could last two to thirteen months, after which Saikewicz's leukemia would likely return. However, as the probate judge in Saikewicz's case found, the majority of people in Saikewicz's situation would have elected to receive chemotherapy. Nonetheless, on the urging of medical experts and Saikewicz's guardian ad litem, the probate court ordered that no treatment be administered to Saikewicz for his leukemia.
It was left to a probate judge to make this treatment determination because Saikewicz had an I.Q. of 10. He was unable to communicate, and he most likely did not understand his condition well enough to give anything resembling informed consent.
A. Why Mr. Saikewicz's Life Was Not Prolonged
The decision apparently turned on Mr. Saikewicz's mental deficiency. Two excerpts from the probate court transcript show that the decision was a close one:
THE COURT: .... I feel that if I had a serious disease and with treatment I could live another five or eight years or ten years, whatever, I'd rather take the treatment than just take the chance of dying tomorrow or next week. MR. MELNICK [the guardian ad litem]: Let me say this, that that was my opinion, but ... I was informed that the toxic effects from the treatment would be so great and with his inability to understand the pain, the chances of success are small to begin with, and he'd die comfortably if he didn't have any treatment. Your judgment is yours and mine is mine, but the toxic effects of the drugs would be very great in my mind. That is how I made my judgment, but I agree that a person that could make an informed consent would consent to it.(9)
Regardless of the fact that "a person that could make an informed consent would consent to it," the fact that chemotherapy would be painful and confusing to Mr. Saikewicz convinced the guardian ad litem that it was better to let him die painlessly.
The judge was not so sure:
THE COURT: That is the choice I have to make. DR. DAVIS: That is it. I don't know. I don't have that deep knowledge. THE COURT: I am inclined to give treatment. DR. JONES: One thing that concerns me is the question about his ability to cooperate. I think it's been made clear that he doesn't have the capability to understand the treatment and he may or may not be cooperative, therefore greatly complicating the treatment process.... THE COURT: Dr. Davis, do you agree? DR. DAVIS: I think it's going to be virtually impossible to carry out the treatment in the proper way without having problems. You have to see him. When you approach him in the hospital, he flails at you and there is no way of communicating with him and he is quite strong; so he will have to be restrained and that increases the chances of pneumonia, to restrain him if he can't be up and around. .... THE COURT: Maybe I should change my judgment.(10)
The judge did change his judgment, and agreed to let the doctors withhold treatment from Mr. Saikewicz:
THE COURT: Do I have to form a written judgment? MR. ROGERS: Yes, I will draft it. THE COURT: After a full hearing with medical specialists and doctors being present and their testimony being taken, the Court determines and adjudges that chemotherapy treatment should not be given at this time.(11)
The court's findings, apparently written by Mr. Rogers, the staff attorney at the hospital, are worth quoting here at length:
....
2. That said JOSEPH SAIKEWICZ is 67 years of age and is currently suffering from acute myeloblastic monocetic [sic] leukemia.
3. That the only available medical treatment therefor is the administration of various drugs, known as "chemotherapy".
4. That said JOSEPH SAIKEWICZ is profoundly retarded, with an I[.]Q. of 10 and a mental age of approximately 2 years and 8 months, and is unable to give informed consent to such chemotherapy.
5. That the majority of persons suffering from leukemia ... choose to receive treatment in spite of its toxic side effects and risks of failure.
....
13. That factors weighing against administering chemotherapy for said JOSEPH SAIKEWICZ are: (1) his age, (2) his inability to cooperate with the treatment, (3) probable adverse side effects of the treatment, (4) low chance [30-40 percent] of producing remission, (5) the certainty that treatment will cause immediate suffering, and (6) the quality of life possible for him even if the treatment does bring about remission.
14. That factors favoring administration of chemotherapy for said JOSEPH SAIKEWICZ are: (1) the chance that his life may be lengthened thereby, and (2) the fact that most people in his situation when given a chance to do so elect to take the gamble of treatment.(12)
Note that of all of the "con" factors, all but two seem to be canceled out by the second "pro" factor (i.e., that most people who could consent to the chemotherapy would do so). Regardless of whether "most people in [Mr. Saikewicz's] situation" would have been acting rationally in choosing to receive chemotherapy--despite their age and the pitfalls of treatment--it is nonetheless the choice that they would have made, and a choice that would have been obeyed. The decision to treat Mr. Saikewicz differently from "most people" therefore must have turned on other considerations. The only remaining "con" factors--presumably, then, the dispositive ones--are the second and the sixth: that Mr. Saikewicz could not cooperate with the treatment, and that he would have a poor quality of life even if the treatment brought about remission.
In the abstract, cooperation would seem to be a valid issue. One must wonder, though, if there really was no way to treat Mr. Saikewicz through sedating him or through making an intensive effort to calm him.(13) Certainly, no one asked that question. Perhaps it was not worth the effort, perhaps it would not have worked, but one wonders why the issue was not even raised by the court. The answer cannot be that it would somehow be unethical to sedate Mr. Saikewicz in order to lull him into cooperating with a treatment to which he could not consent--the whole purpose of this proceeding was to make Mr. Saikewicz's decision for him, to decide what was best for him notwithstanding his own reactions.
The best explanations that the Massachusetts Supreme Judicial Court ("SJC") could muster when validating the probate court's use of the cooperation issue were the following:
The possibility that such a naturally uncooperative patient would have to be physically restrained to allow the slow intravenous administration of drugs could only compound his pain and fear, as well as possibly jeopardize the ability of his body to withstand the toxic effects of the drugs.(14)
The first explanation is unconvincing, as it suggests that sedating Mr. Saikewicz would have been, on balance, both difficult and painful. The second explanation is purely speculative. Notwithstanding these flaws, cooperation remains more convincing than any other factor proffered to support the decision to withhold treatment.
More troubling is the probate court's other main reason for withholding treatment: Mr. Saikewicz's diminished quality of life. The appellate court struggled to interpret this as a reference to the pains of chemotherapy, saying:
The sixth factor identified by the judge as weighing against chemotherapy was "the quality of life possible for him even if the treatment does bring about remission." To the extent that this formulation equates the value of life with any measure of the quality of life, we firmly reject it.... Rather than reading the judge's formulation in a manner that demeans the value of the life of one who is mentally retarded, the vague, and perhaps ill-chosen, term "quality of life" should be understood as a reference to the continuing state of pain and disorientation precipitated by the chemotherapy treatment.(15)
This statement by the SJC is a bald-faced lie, albeit a creative one. It reads like a stinging rebuke to the probate judge, nicely veiled to say "you must have meant X, because you couldn't have meant Y." However, the probate judge meant exactly what the SJC firmly rejected as demeaning. The SJC had to know this--the probate judge could not have equated "quality of life" with the pain and disorientation of chemotherapy as the Supreme Judicial Court did, because the probate judge had already mentioned the latter in his third and fifth "con" factors (high probability of side effects and certainty of pain and suffering respectively).(16)
The SJC, then, had to recognize the deeply flawed basis of the probate court decision. It chose to ignore this fact and to rewrite the decision on what it perceived to be stronger ground. Regardless of the SJC's approach, it affirmed the probate court's decision, which allowed Mr. Saikewicz to die because he did not merit the same treatment that a competent person would choose. The court's opinion thus suggests that the life of an old retarded person is less worthy of protection than that of an ordinary person with the same condition.
This is an ethically troubling decision. The judge was responsible for it, but the doctors encouraged and supported him. Left to his own devices, the judge apparently would have ordered treatment. The decision here, if unethical, reflects as much on the medical profession as the judiciary.
B. Who Decides?
Professor Robert Burt raises the question of "who decided" Mr. Saikewicz's fate in the course of making a larger point about the unwillingness of the parties in such situations to enter into a "direct struggle";(17) i.e., to interact with a dying person:
Most fundamentally, this ... reflected everyone's unwillingness to enter into sustained interaction with Joseph Saikewicz.... The trial transcript shows this if we attempt to identify from it precisely who decided to withhold treatment from Saikewicz--the doctor or the judge. The judge claimed power to decide, to which the doctor deferred on the ground that he lacked "that deep knowledge"--until the judge suggested that his decision would require the doctor to treat. The doctor then objected.... The judge had thus succeeded in obtaining a highly explicit recommendation from the doctor and then encircled his decision with the rhetorical flourishes "after a full hearing with medical specialists and doctors being present and their testimony being taken, the Court determines and adjudges...." Who then was responsible for this decision?(18)
At the appellate level this question was answered decisively, once again in a way that rewrites the basis of the lower court's decision:
[S]uch questions of life and death seem to us to require the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created. Achieving this ideal is our responsibility and that of the lower court, and is not to be entrusted to any other group purporting to represent "the morality and conscience of our society," no matter how highly motivated or impressively constituted.(19)
Were it not for the vacillations of the probate judge; for the fact that the doctors testifying before him seemed to be leading him by the nose; for the fact that the doctors' lawyer wrote the opinion;(20) for the fact that the probate judge pulled an existential punch by deciding not that Joseph Saikewicz would not receive treatment, but only that he should not; were it not for all of these things (none of which are visible in the appellate decision), this declaration by the SJC would be inspiring instead of ironic.
Some irony would remain. The SJC said in Saikewicz that judges, not doctors (or the legislature) should make life and death decisions. This idea comports with the notion that the state has its own interest in maintaining the ethical integrity of the medical profession, rather than leaving doctors to their own ethical devices. It clashes, however, with subsequent courts' treatment of the ethical integrity standard, which has generally entailed passively deferring to the medical establishment.
Twenty-four years later, the case of Joseph Saikewicz seems an odd vehicle for positively asserting, and supposedly vindicating, a state interest in maintaining the ethical integrity of the medical profession. When they treated Joseph Saikewicz differently because of his mental incapacity--by withholding treatment that competent patients in his condition would choose to receive--the doctors in this case arguably compromised their ethical integrity. In a sense, then, Saikewicz is an appropriate place from which to consider EIMP as a cautionary example, not as a positive archetype. Unfortunately, the SJC used it as the latter, and over the next twenty years, judges in much of the rest of the country followed suit in applying the appellate decision.
III. ORIGINS
The origins of EIMP in the death cases are murky. The Saikewicz case supposedly synthesized the standard from previous cases, but upon closer analysis we can see that it transformed and expanded the interest far beyond anything that had appeared before. To put it bluntly, the SJC made up EIMP, the same way it constructed a falsely ethical version of the probate court's decision. Compounding these problems, it made little effort to explain coherently what the EIMP standard was supposed to mean. Part III suggests that these chaotic origins are reflected in the lack of respect and the inconsistent treatment the Saikewicz standard has received. In other words, the carelessness with which the state interest in the ethical integrity of the medical profession was first asserted has led to its subsequent undermining.
A. Forerunners
Long before Saikewicz used it, the phrase "ethical integrity of the medical profession"(21) appeared in a series of pharmacy cases. An early and typical example is Stadnik v. Shells City, Inc.,(22) a 1962 case that struck down a law preventing pharmacies from advertising prescription prices. The ban had been intended to prevent doctors from deciding which drugs to prescribe based on price, but the court asserted that the ethical integrity of the medical profession could be relied upon to nullify any such market pressure.(23) Several cases in the 1960s and 1970s used comparable language in dealing with similar pharmacy advertising bans.(24) Before Saikewicz, then, the main use of EIMP language was to express confidence that doctors were motivated by science and ethics, not economic considerations.
Two other cases, closer to Saikewicz both in time and topic, also referred to the ethical integrity of the medical profession. Like the prescription cases, they ruled that states' external attempts to regulate doctors were unwarranted given the profession's strong internal ethical integrity. In Poe v. Menghini,(25) an important pre-Roe v. Wade abortion case, a federal court deemed unnecessary a state's requirement that a three-doctor panel pre-approve abortions. One reason given was that the state interest in preserving the life of the unborn child could be served simply by relying on "the self-discipline and professional ethics and integrity of the medical profession" reflected in the judgment of the one doctor treating the patient.(26)
The second example was the trial court decision in the famous case of Karen Quinlan.(27) In holding that Ms. Quinlan should not be taken off of life support, the trial court argued that:
The judicial conscience and morality involved in considering whether the court should authorize Karen Quinlan's removal from the respirator are inextricably involved with the nature of medical science and the role of the physician in our society and his duty to his patient. When a doctor takes a case there is imposed upon him ... a higher standard, a higher duty, that encompasses the uniqueness of human life, the integrity of the medical profession and the attitude of society toward the physician, and therefore the morals of society. A patient ... [expects] that he (the physician) will do everything in his power, everything that is known to modern medicine, to protect the patient's life. He will do all within his human power to favor life against death. The nature, extent and duration of care by societal standards is the responsibility of a physician. The morality and conscience of our society places this responsibility in the hands of the physician. What justification is there to remove it from the control of the medical profession and place it in the hands of the courts?(28)
This decision displays a subtle difference from the pharmacy cases and Poe. As in the previous cases, the Quinlan trial court said that the medical profession was a better guardian of medical-ethical standards than the state. However, where the other cases had placed such confidence in individual doctors and their "self-discipline," the trial court in Quinlan spoke of ethics as if they were an external duty "imposed" on doctors simply by their membership in the medical profession.(29)
The New Jersey Supreme Court continued this trend toward viewing ethics at a professional rather than individual level in the appellate Quinlan decision.(30) The excerpt from the lower court opinion quoted above was included almost verbatim in the appellate decision, but, significantly, the language about the...
Read the full article for free courtesy of your local library.
|
Bookmark this article
Print this article
Link to this article
Email this article
Digg It!
Add to del.icio.us
RSS
