the saikewicz precedent: what's good for an incompetent patient?

The Saikewicz Precedent: What's Good for an Incompetent Patient?Author(s): Paul RamseySource: The Hastings Center Report, Vol. 8, No. 6 (Dec., 1978), pp. 36-42Published by: The Hastings CenterStable URL: http://www.jstor.org/stable/3561471 .

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MEDICAL DECISION-MAKING IN THE COURTS

The Saikewicz Precedent: What's Good For an Incompetent Patient?

by PAUL RAMSEY

O n November 28, 1977, the Supreme Judicial Court of Massachusetts handed down its opinion1 that Joseph Saike- wicz not be treated-nearly one and a half years after its ruling to that effect and more than fourteen months after his death on September 4, 1976, of bronchial pneumonia. George J. Annas2 argues that the opinion written at leisure makes for greater objectivity in the court's reasoning, in comparison with similar life-or-death opinions written while the outcome is still in doubt. A contrary argument seems equally plausible, though I do not make it here.

Joseph Saikewicz was a sixty-seven-year-old incompetent, profoundly mentally retarded, said to have an IQ of ten and a mental age of about three years. On April 19, 1967, he was diagnosed to have acute myeloblastic monocytic leukemia. This is not the place to review the reasons put forward for treating or for not treating this patient.3 We are concerned rather to ferret out the reasons the Supreme Judicial Court judged it proper to substitute its opinion for Saikewicz's unknown and unknowable opinion concerning accepting or refusing treatment.

Speaking for a unanimous court, Justice Liacos held that the probate court had full and the sole authority to make such a determination; and, for an undisclosed numerical majority, held that Judge Jekanowiski had made a proper decision in this particular case. The court (1) rejected Quinlan's privatizing similar decisions; (2) jettisoned Judge Jekanowiski's reference to "the quality of life possible to him even if the treatment does bring about remission" among his reasons against treatment ("To the extent that this formulation equates the value of life with any measure of the quality of life, we firmly reject it"); and (3) turned thumbs down on any need to ask whether many or most competent patients choose treatment ("Nor do statistical factors indicating that a majority of competent persons similarly situated choose treatment resolve the issue"). All three of these points may help to prevent the New Jersey Supreme Court's decision in the Quinlan case4 from racing through American law.

At the same time these points, taken together, locate Joseph Saikewicz's exercise of his privacy right for or against medical intrusions in the impenetrable unknown, beyond possible discovery by any human court. But then, what were the grounds for the Massachusetts court's substituted judgment doctrine? Where Judge Muir in the lower New Jersey

PAUL RAMSEY is professor of religion at Princeton University and the author of Ethics at the Edges of Life: Medical and Legal Intersections, recently published by Yale University Press.

court's opinion in Quinlan5 held that "there is no constitutional right to die that can be asserted by a parent for his incompetent adult child," the Massachusetts court implied that there is a constitutional right to die that can be asserted for an incompetent by an impartial court.

Note that the words "that can be asserted . .." in the previous sentence are restrictive clauses in both cases. In neither case is it denied that competent patients have a "right to die" or (better expressed) a right to refuse treatments that fore- seeably will lead to their deaths. The issue is simply whether there is a right to die or a right to refuse life-saving treatments that can be asserted for an incompetent by parents, guardians, physicians (private persons) or, in the alterna- tive, by courts; and if the latter, on what grounds and by what moral or legal reasoning. That such a determination must be judiciable is a glory of American law. The Massachusetts court's firmness on this point is commendable.6

However, we may ask whether the court in reaching for grounds for its substituted judgment did not exceed its grasp. In substituting judgment for this never-competent patient, it set aside the standard of a normal child patient, who also cannot understand the pain and would have to be restrained during prolonged treatment. Attempting to get at Saikewicz's "subjective" standard, I shall suggest, the court treated him as if he were a competent patient who then would "reasonably" take into account the fact that he was incompetent! Background quality of life before the patient's illness and after possible remission was thus brought into the fore- ground. These are some of the issues that should concern us in a more detailed analysis of the Saikewicz opinion.

Patient Rights, Competent or Incompetent

Declaring that the Saikewicz case presented "novel issues of fundamental importance," Justice Liacos speaking for the court announced that these novel issues "should not be re- solved by mechanical reliance on legal doctrine." We are not told what that legal doctrine was, which the court set aside and did not follow, mechanically or otherwise. Could the doctrine be that which Judge Muir stated: "There is no constitutional right to die that can be asserted by a parent for an incompetent"; or (absent some finding contra) by a court for an incompetent who himself cannot refuse treatment for himself?

Instead, the Massachusetts court created new pathways for judges in courts below to tread. It posed for itself three questions to be answered in the sequence stated: "A. The nature of the right of any person, competent or incompetent, to decline potentially life-prolonging treatment. B. The legal

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standards that control the course of decision [in particular cases of persons who are] not competent to make the choice. C. The procedures that must be followed... ." Areas A and B were, in the court's view, "closely interrelated."

It is obvious that the court's answer to A was the crux of its opinion; and, indeed, that its peculiar formulation of the question already contained the answer. How does one determine "the right of any person, competent or incompetent" without first distinguishing between the two classes of patients, when the issue is refusal of medical treatment which can be a decision exercised only by the competent?

I suggest that any sensible reader of the court's opinion- notified that the reasoning of the court is going to rest upon "the right of any person, competent or incompetent"-would expect that, first, we will be told what rights these two sorts of patients have in common, and then what is uncommon between them. The following would be the expected answer. Patients, competent or incompetent, have in common a right not to be killed. They have a right not to be neglected to death-advertently, or inadvertently. Then one would expect the court to distinguish in some fashion the rights of competent patients from those of incompetents. Incompetent patients do not have "privacy" in the sense of autonomy and self-determination. Competent patients do. With informed understanding, the latter have privacy rights to exercise, and an integral freedom to determine the treatments they will accept or refuse according to consciously held plans of life that are theirs-including the right to refuse life-prolonging treatments.

From the outset the court defined the issue before it quite differently. Their question was "how an incompetent person is to be afforded the status in law of a competent person with respect to such rights." This formulation of the issue already predetermines its answer, namely, the power of courts, com- posed as they are of competent persons, to impute their substituted judgment to incompetents whose will and wishes are unknown to them, and unknowable. Ascription, not discovery, of an interest in the incompetent whose case is before the court becomes the meaning of the substituted judgment doctrine. This to date has not been the glory of American law, protecting the lives of those who cannot protect themselves.

It is not surprising, therefore, that the court's discussion of "the rights of all persons in this area"; "the right of any person, competent or incompetent, to decline potentially life- prolonging treatment"-gathers into a great heap the rights of competent patients. ". .. A person has a strong interest in being free from nonconsensual invasion of his bodily integrity." Informed-consent cases are cited to support the obvious conclusion that this doctrine "protects the patient's status as a human being." Then comes a reference to "the unwritten constitutional right of privacy found in the penumbra of specific guarantees of the Bill of Rights." The court's reasoning obviously runs from the competent to the incompetent in its entire approach to the latter. Determining the rights of all persons, competent or incompetent, is-to say the least- one-sided from the start.

When these rights may be exercised-or ascribed-de- pends on "the proper identification of State interest." This

point concerned the court most of all, since-I suggest- state interest heretofore has been defined as the protection of the lives of those who cannot protect themselves from posi- tive or negligent harm. Still the asymmetrical reasoning from the competent to the incompetent continues: state interest does not always override "the individual's interest in exercising the choice of refusing medical treatment."

Four state interests are identified: (1) the preservation of life; (2) the protection of the interests of innocent third parties; (3) the prevention of suicide; and (4) maintaining the ethical integrity of the medical profession. Of these the most significant is the first. What, then, of the state's interest in the preservation of life?

Quinlan answered this question by its strange computa- tion: "the State's interest contra weakens and the individual's right of privacy grows as the degree of bodily invasion in- creases and the prognosis dims. Ultimately, there comes a point at which the individual right overcomes the State interest."7 The Massachusetts court did not pursue this line. Instead, it continued to build its doctrine of substituted judgment. The standard was the right of competent patient refusals. "The interest of the State in prolonging life must be reconciled with the interest of the individual to reject the traumatic cost of that prolongation." ". .. .We believe it is not inconsistent to recognize a right to decline medical treatment in a situation of incurable illness.. . . The value of life as so perceived is lessened not by a decision to refuse treatment, but by the failure to allow a competent human being the right of choice." The two foregoing quotations bracket the first statement in the Court's argument8 that comes close to the case of Joseph Saikewicz (which still verbally applies to competent and incompetent alike): "There is a substan- tial distinction in the State's insistence that human life be saved where the affliction is curable, as opposed to the State interest where, as here, the issue is not whether, but when, for how long, and at what cost to the individual that life may be briefly extended."

The latter statement read in balanced fashion for incompetent and competent alike would impose a state interest in constraining competent patient refusals, and severely qualify the court's footnote nine, which seems to allow greater latitude for an individual, without state involvement, to "make a decision resulting in the shortening of life by natural causes." But, of course, the court did not mean its reasoning to be balanced. It was rather reasoning from competent patient refusals to open the door for court-substituted judgments in the case of the incompetent without claiming to have discovered objective grounds for such judgments.

Short shrift was given to the other possible state interests listed above. Concerning (2), "protecting third parties, par- ticularly minor children, from the emotional and financial damage9 which may occur as a result of the decision of a competent adult to refuse life-saving or life-prolonging treatment," the court said simply that "we need not reach this aspect of claimed State interest as it is not in issue on the facts of this case." Strictly speaking, that was correct. Still we may point out that such cases are among those continuing to come before the courts of Massachusetts; and that the future alone will tell whether the Saikewicz case significantly influences

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their outcome. We will consider some of these recent and current cases below.

State interest (3), protecting against suicide, was reduced to a footnote (number eleven). Nevertheless, the court's observations on this point are of some interest. Treatment refusal is not the same as suicide, since "the patient may not have the specific intent to die," and such refusal does not "set the death producing agent in motion" (death results from "natural causes"). This means, as I understand the law, that a conscious, competent patient who refuses treatment for some incurable illness of which he is dying has neither the mens rea nor the actus reaus of "suicide." More fully elabo- rated, applied to a patient other than oneself, and connected with the final point-the ethics of the medical profession- this reasoning might have supported the conclusion that "allowing to die" is no crime, nor need come before courts, neither in the case of the incompetent nor in the case of competent refusals. Instead, the court moved on to say that state interest has in view "the prevention of irrational suicide." This move enabled the court by contrast to invoke again its paramount notion (applied to an incompetent!): "What we consider here is a competent, rational decision to refuse treatment when death is inevitable and the treatment offers no hope of cure or preservation of life." That sweeping statement, of course, was not supported by the findings of fact in the Saikewicz case.

The last state interest (4) was "the maintenance of the ethical integrity of the medical profession, and the freedom of hospitals in the management of patients." Here, as elsewhere, the court quoted Qllinlan to the effect that "the pre- vailing ethical practice seems to be to recognize that the dying are more often in need of comfort than treatment."10 Instead of founding its opinion on that acknowledgment, however, the court promptly brought up again the rights of competent patients-self-determination, informed consent, and privacy-which it deemed to be superior to the interests of doctors or to institutional considerations.

In the end, therefore, the state's interest in the preservation of life gave way before a weighing of (a) the heavy physical and emotional burdens on Joseph Saikewicz "if a vigorous regimen of drug therapy were to be imposed to effect a brief and uncertain delay in the natural process of death" against (b) "the individual's interest in the freedom to choose to reject, or refuse to consent to, intrusions of his bodily integrity and privacy." Who does (b) describe? Cer- tainly not Joseph Saikewicz! In this fashion the court rounded out the crux of its opinion by referring again to its question- begging formulation: "the right of any person, competent or incompetent."

Then only did the court turn to a consideration of this particular patient's "inability to appreciate his predicament and articulate his desires." Thus we arrive at what the court called (B) the "legal standards" that control in the case of persons incapable of making the choice. Under this head, the first question was "Does a choice exist?" for the courts in this sort of case? Here, I must say, we enter no new terrain, since the answer-"a choice exists"-simply recapitulates the "general right of all persons to refuse medical treatment in appropriate circumstances" (italics added). Since "human

dignity" extends to both competent and incompetent, that right of refusal must-somehow-extend to the incompetent. The question now takes the negative form: Why should incompetents not have the same right of refusal? The affirma- tive questions: Why should incompetents be judged to have the same right of refusal? and Do they have the capacity to exercise treatment refusal?, were never squarely faced. In its exercise of its parens patriae power, the state may deem that the best interests of the incompetent are "not necessarily served by imposing on such persons results not mandated as to competent patients similarly situated" (italics added). That again states the question in negative form, and shifts the burden of proof concerning an incompetent's interests.

The words "similarly situated" should be noted, since they are withdrawn before this paragraph concludes. The status, dignity, and worth of incompetents are the same as anyone's. Therefore the state must assure that person "the same panoply of rights and choices it recognizes in competent persons." If the competent may refuse treatment, the state need not always require such treatment of an incompetent in his best interests. Then comes the withdrawal of the "similarly situated" standard for substituting judgment for an incompetent's "choice": "Nor do statistical factors indicating that a majority of competent persons similarly situated choose treatment resolve the case" (italics added).

I said above that the court treated Joseph Saikewicz as if he were a competent patient who, if lucid, would reasonably take into account the fact that he was incompetent. My char- acterization is, I think, correct for the court's general reasoning about (A) the rights of all persons, competent or incompetent. That reasoning is constructed asymmetrically from competent patient refusals; and then it brain-twistingly allows the incompetent lucidly to take account of his incompetence in exercising an absent capacity to refuse treatment.

Probing more deeply into the court's opinion, however, agnosticism about Joseph Saikewicz's refusal was about all it invoked in considering (B) the standards to be applied in this particular case.

The argument under this head again proceeded from the decisions of competent patients. The reason the court rejected "statistical factors indicating that a majority of competent persons similarly situated" would choose treatment was because statistical determinations cover over, suppress by summing up, absolutely "singular" situations, "unique" choices made by individuals each of whom is utterly different from any others. So, the court concluded that an incompetent need not always be subjected to treatment a competent individual "may decline" in the complexities of a unique person's singular decision and life plans. A competent patient refusing treatment may be among a small minority who do so, or for that matter a minority of one. To deny the incompetent this same latitude would be to place lesser value on his intrinsic worth than we accord rational persons. According "the same rights" must mean according "the fullest possible expression to the character and circumstances" of the unique, singular individual-not to statistical persons "similarly situated."

Again, it is the great glory of American law to be con- stantly engaged in attempting such individual determina-

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tions; and in this case to discover-if possible-the rights and interests of this particular "rights-holder" Joseph Saike- wicz. At this point, the Massachusetts court launched its most lengthy reference to Quinlan; that opinion laid down the rule that a correct judicial decision must "conform, to the extent possible, to the decision that would have been made by Karen Quinlan herself." Then the Massachusetts court nods, by referring to what "any other person ... in a similar state of total incapacity" would reasonably decide. Reminding itself that the case of Joseph Saikewicz was different because he was minimally sapient, the court suddenly returned to its "principle" that what "most people" would choose to accept has "no direct bearing on the likely choice that Joseph Saikewicz would make." It was in this vale of unknowing that the court made its decision.

The only "worthwhile comparison" the court could think of was "whether a majority of people would choose chemotherapy if they were told merely that something outside of their previous experience was going to be done to them"- with all else beyond their comprehension. Still this crutch was cast aside. All efforts to appeal to what a "majority of people" would choose are unavailing; such appeals assume truly similar circumstances that are known. They assume an "objective viewpoint," and "a 'reasonable person' inquiry." But that is "indirect evidence." Instead, "the primary test is subjective in nature" (italics added)-the goal is to determine "with as much accuracy as possible the wants and needs of the individual involved." It seems, then, that the substituted judgments of courts of equity must be utterly subjective because utterly singular to the individual case, unless the court can discover some specific trait or interest of the incompetent on which to base its decision. This once was the doctrine of substituted judgment, I suggest; courts purported to find an incompetent's interest. They did not project the unknowable into the unknown. They did not impute, with no specific facts to guide them, to incompetent subjects the courts' judgment concerning what these subjects would choose if they were rational and took into account their irrationality.

In its search for a reason (for its ruling) for not treating Joseph Saikewicz, the court's reasoning is becoming unglued, unanchored. The court itself calls its criterion a "subjective" standard, that is, not an objective one, not a "reasonable man" argument. "Subjective" means two entirely different subjects in two observations the court made at this point. Karen Quinlan's father would draw on "many years of what was apparently an affectionate and close relationship" in determining what Karen would want to be done. Here Karen's subjectivity is supposed to be knowable. But in the case of Saikewicz, a never-competent and noncommunicative patient, the court had to "rely to a greater degree on objective criteria, such as the supposed inability of profoundly retarded persons to conceptualize or fear death" (italics added). Ig- noring this single use of the expression "objective criteria," the court restates its quest: "the effort to bring the substituted judgment into step with the value and desires of the affected individual must not, and need not, be abandoned." This quest means that the substituted judgment must necessarily be the court's subjectivity, little or not at all constrained by proposed objective tests. Joseph Saikewicz's "subjectivity" was

not found by any test the court thought pertinent. As if troubled by the chartless ocean of subjectivity on

which it had launched the future development of the doctrine of substituted judgment, the court brought up the "pedigree" of this legal doctrine, namely, its origin in the administration of the estates of incompetent persons where, of course, the subjective judgment of courts was constrained by and anchored in an actual finding concerning the objective interests of an incompetent."1 The court referred also to a recent case not involving the administration of estates, nor yet a case in which life or death was the issue but instead an organ trans- plant from an institutionalized retardate,12 in which the court's substituted judgment was anchored in a finding that "both parties would benefit."

Then "with this historical perspective"-I suggest, against this historical perspective-the court "reiterated the substituted judgment doctrine as we apply it in the instant case." That reiteration was expressed in a convoluted statement that may be without precedent in American law. The statement necessarily turns several times back upon itself, in a necessarily vain attempt to formulate a "subjective" standard where there could be no finding or discovery, nor any objective standard applied to the never competent patient in this case. The statement reads: "The decision in cases such as this should be that which would be made by the incompetent person, if that person were competent, but taking into account the present and future incompetency of the individual as one of the factors which would necessarily enter into the decision-making process of the competent person."

So we are back to square one, or rather still on the square from which the court never moved, namely, its original question-begging question-formulation: "the rights of patients, competent or incompetent" transposed from the competent to the incompetent, regardless of the "pedigree" of the substituted judgment doctrine. Its "standard" could be none other than its free-floating subjectivity, since Saikewicz's wishes were unknown and unknowable, and the court excluded all tests for his choice that had been proposed.

Still the court went on to ask whether, given these standards, the court below correctly judged "that Saikewicz himself would have made the decision under the standards set forth." In answer to this question the court introduced some qualifications which, for the record and for the future, it is significant to notice. I cannot say that these qualifications were uncontaminated by the moral and legal logic we have exposed. We need to note what was said about (1) the fact that most people elect chemotherapy and (2) the importance of the chance of longer life for this patient, even though the court limited these considerations by whether "due allow- ance" was made "for this individual's present and future incompetence." The first point had already been dismissed. With regard to "longer life," the court asserted that its value "carries the same weight for Saikewicz as for any other person, the value of life under law having no relation to iritelli- gence or social position." Age, the court dismissed, as "irrel- event, of course, to the value or quality of life." The "quality of life possible for him even if the treatment does bring about remission," the court "firmly rejected." The court went out of its way to interpret the probate judge's references to




"quality of life" not to demean "the value of the life of one who is mentally retarded." That was, it said, "vague, and perhaps ill-chosen" language to be understood as a reference to "the continuing state of pain and disorientation precipi- tated by the chemotherapy treatment." The judge's meaning was, instead, this patient's quality of life during treatment.13

One factor, the court said, was "unique to this individual." He would have "no comprehension of the reasons for the severe disruption of his formerly secure and stable en- vironment occasioned by the chemotherapy. He therefore would experience fear without the understanding from which other patients derive strength." The only worthwhile comparison would be to ask "whether a majority of people would choose chemotherapy if they were told merely that something outside their previous experience was going to be done to them." This was the "objective standard" if, indeed, the court found one. But these efforts to discover an objective foundation for the court's ruling fail-or else they are gen- eralizable to child-patients also. Children given this or similar treatment have of course the same incapacity and they too may have to be restrained during such treatment. They too can be told only that something outside their previous experience is going to be done to them.

On the matter of future procedures (C) to be followed in similar cases, the court took "a dim view of any attempt to shift the ultimate decision-making responsibility away from duly established courts of proper jurisdiction to any committee, panel or group, ad hoc or permanent." Here the Massa- chusetts court put down Quinlan, with its privatizing of such ominous decisions about who shall live and who shall die. Quite correctly, in my opinion. Such procedures are not only a "gratuitous encroachment upon the medical profession's field of competence" but also because these procedures "would be impossibly cumbersome." Therefore the court re- quired that all similar future decisions be brought to court. It did so not as an encroachment on the medical profession, but to provide "detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created." Such decisions are "not to be en- trusted to any other group purporting to represent the 'mor- ality and conscience of our society,' no matter how highly motivated or impressively constituted."

With this judgment I agree, and any citizen should agree who does not endorse a society in which a tumult of divergent life-and-death decisions are made by private parties. We must go together as a people into the future protecting life, or not doing so. Therefore I have raised the simple but fundamental question whether the opinion in the Saikewicz case shows the way we should go, or whether it does not introduce a tumult of judicially subjective substituted judgments. For, from reading the entire opinion, the conclusion is irresistible that in this case the Justices simply made up their subjective minds, without foundation in any adequate discovery or find-

ing or test, what would be good for Joseph Saikewicz.

Whither the Massachusetts Courts?

Two subsequent cases, however, demonstrate that the courts of Massachusetts may be practicing medicine about as

before, and more soundly. In these two cases (faced by different sets of facts) divergent decisions were handed down by the same judge. In both cases he relied on the landmark Saikewicz case. What reference to Saikewicz meant is difficult to tell because the rulings and opinions in these two cases were ordinary and typical ones. Decisions to treat in one case and not to treat in the other were based on findings of medical facts or personal wishes; they were not subjective judicial projections into unknowable patient refusals.

Walter Piotrowicz petitioned the court to be appointed guardian of his wife, a patient at Salem Hospital. She was in a coma, suffering from Huntington's Chorea, a progressively worsening condition that is incurable and irreversible; he re-

quested authorization to permit him, as guardian, to withhold his consent to further life-prolonging treatment. The doctors primarily responsible for her care and treatment recommended that she be removed from the life-prolonging respirator apparatus. The court appointed guardian ad litem could find no reasonable argument in favor of continuing Mrs. Piotrowicz on the respirator. In its findings of fact the court stated: "The patient is not presently feeling any pain as a result of being on the respirator and will not suffer any pain if the respirating apparatus is removed. For Mrs. Pio- trowicz to be continued on the respirator will not cure the

underlying illness of Huntington's Chorea, nor will it cure the extensive brain damage which is irreversible." The court also found, based on conversation between Mr. Piotrowicz and his wife, that it was the express wish of Mrs. Piotrowicz that she not be kept alive by artificial means. So finding, the court appointed Mr. Piotrowicz as temporary guardian of his wife and authorized him to withhold his consent to further

life-prolonging treatment of her.14 Kerri Ann McNulty, a patient at New England Medical

Center Hospital since January 4, 1978, her date of birth, was

diagnosed as having congenital rubella. In addition to eye complications and respiratory problems resulting from the rubella, the child was believed to be deaf, to have congenital heart failure, and to have some degree of mental retarda- tion. The child was not characterized as suffering from a ter- minal illness, but was deemed to be in immediate need of

high-risk cardiac surgery. Her father, who had been appointed temporary guardian, sought authorization to withhold his consent to any "extraordinary or heroic life support- ing systems, procedures or measures." The interests of the child were represented by a guardian ad litem who recommended that the child have the necessary surgery. After re-

viewing the medical testimony and the arguments of the

parties the court concluded that "the proposed cardiac sur-

gery is not merely a life prolonging measure, but indeed is for the purpose of saving the life of this child, regardless of the quality of that life." The guardian ad litem was authorized to give assent to the performance of the surgery recommended by the hospital and the child's doctors. The hospital and the physicians were authorized to render life-saving treatment without incurring civil or criminal liability to the

parents, notwithstanding their refusal to consent to the proposed treatment.15

A third case is the disturbing one. Two-year-old Chad Green is suffering from acute lymphacetic leukemia. The

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boy's parents, Gerald and Diane Green, withdrew him from the chemotherapy that was begun-which they later deemed to be "poisonous drugs and needles" that, moreover, "ter- rify" the child who cannot understand their purpose or the painful after-effects. In March 1978, Probate Judge James Lawton of Plymouth County granted the parents physical custody for the purpose of administering their own treatment of organic foods and distilled water. The Massachusetts Gen- eral Hospital then filed a care and protection suit under the child neglect statute. The parents won the first round against this action when Hingham District Judge Martha Green ruled that they had the right to institute their own treatment for the child. This was stayed when Judge Guy Volterra of the Superior Court of Plymouth County ordered treatment resumed while he decided the case.

The physician, Dr. John Truman, of Massachusetts Gen- eral Hospital asserts that this sort of childhood leukemia can be cured if it is caught early enough. Because of remarkable progress in recent years the disease is now curable in at least 50 percent of the cases. Other physicians estimate a higher success rate. Moreover, a hospital spokesman stated that if Chad goes without chemotherapy, "he'll die a much more painful death than he would if he continued and died."'6 Thus, the hospital claims that the child should be treated both because there is significant expectation of cure and on balance also to alleviate pain. On either or both grounds, not to elect treatment would be a failure of the parents' legal and moral obligation to protect a child from greater harm. Not to give treatment to a child placed in his care would be a breach of a physician's fiduciary duty to his patient; moreover, not to report and take action against known parental child neglect would be a breach of the ordinary duties of a citizen. On April 18 Superior Court Judge Volterra reached his decision ordering chemotherapy treatments continued for Chad Green.17

The varied and contradictory decisions in the case of Chad Green went on under the shadow of Saikewicz; and any further decision upon appeal will doubtless rely in some measure on that landmark case, as did Piotrowicz and McNulty.

George Annas18 classifies the McNulty case as the only Saikewicz-type case to be brought to court so far. His reason for not similarly characterizing the case of Chad Green is a purely legal one: the action was brought under the child neglect statute. Nevertheless, the comparison between the cases of Chad Green and Joseph Saikewicz are striking on the point of legal doctrine-especially when one takes account of the considerations that the Supreme Court excluded from the basis of its decision in the latter case. The comparisons need not be spelled out in detail here; age, quality and length of life, for example, were excluded; and both patients have never been competent. One common feature is that neither patient could understand what is being done to him. The most important common feature, however, is the substitution of the judgment of courts for that of an incompetent when his is unknown.

I am told that any interruption of Chad's chemotherapy- if such was allowed by Judge Martha Green's decision, later stayed, in favor of the "treatment" his parents desired-cut by half in his case the high incidence of expected complete

cure. Tragic as this may be, I do not see how imputing refusal of treatment to Chad Green by the subjective substituted judgment of courts can be excluded if the reasoning of the court in Saikewicz is not overturned, or radically altered. This consistent consequence follows if we are to ascribe to incompetents the same panoply of rights and choices that competents freely may exercise, including the right to refuse life-prolonging treatment; and if human courts are not to protect their lives but to protect in them rather a nonexistent autonomy or privacy, singular case by singular case, with no objective limitation to be drawn either from the medical choice worthiness of the treatment itself, or from the choices competent patients ordinarily make, or from the treatments mercifully imposed on sufferers from like diseases who are normal and only incompetent by reason of age.

Physician Alternatives

The highest courts of two state jurisdictions have spelled out divergent legal requirements governing the treatment of incompetents. New Jersey's In re Quinlan criterion is the probability of recoverability of sapient, cognitive life-a thin edge of the wedge toward quality-of-life "medical" judgment. Massachusetts' Saikewicz invests in individual courts the right to exercise a subjective judgment for the incompetent based on the decision they believe such a patient would himself elect if he were competent and took into account his incompetence. Physicians in their practice have traditionally walked not a narrow ridge but a broad and solid pathway between these extremes. Indeed, if these are extremes, then extremes meet, since the Saikewicz opinion with its wrench- ing of the legal doctrine of substituted judgment away from objective findings to a court's subjective ascription of a choice to an incompetent patient was in actuality also a quality-of- life decision in disguise.

Traditionally physicians have not failed to offer medically helpful treatment to patients regardless of how slim the help, or their expected quality of life. At the same time they have rightly allowed the dying to die. To cure and save life when possible, to comfort when that is not possible, and always to care by any useful means. Cardiac surgery for Kerri McNulty was a life-saving procedure; it was not merely, as the court said, a "life prolonging measure"-meaning by the expression, surely, not merely a measure to prolong her dying. Mrs. Piotrowicz was rapidly deteriorating even on the respirator. That apparatus was effective in no other way than to prolong her dying. Neither case needed to come before a court of law. In each case the mandated action was good medical practice, and always has been. No physician has ever been successfully prosecuted for letting the dying die. Physicians should, and eventually will, be prosecuted if they announce and practice the medical neglect of the nondying. Only the integrity of a practice that allows the dying relief from "treatment" when there is nothing more to be done and at the same time never neglects to give medically indicated treatment or palliatives to those who are only severely retarded or incurable, not dying, can keep the courts from practicing medicine without a license, and physicians from determining social policy in dealing with incompetent defec-




tive patients. Many patients at this moment "competent or incompetent" have in common, and everyone of us "competent or incompetent" will one day have in common, that we are dying, and treatment can only stay the inevitable.

At the same time, uncommon between the incompetent and the competent is that the latter have capacity for choice, to elect to refuse treatment or to elect to prolong life for a time for some. reason in their life plans. This is the only analysis that can be approved by any reasonable mind-mor- ally, legally, or medically. Judge Muir's words are entirely consistent with the foregoing: "There is no constitutional right to die [or better said, no right to refuse life-saving or death-postponing treatment] that can be asserted by a parent for his incompetent adult child," or by a court of law without some finding of objective fact determining that patient's interests or wishes. The tragedy is that some physicians have strayed from that practice of good medicine to one side or the other, forcing into court medically clear cases of allowing the dying to die or by claiming to make social decisions (with family members) concerning the medical neglect of nondying incompetents.

Faced with the present legal alternatives, physicians need

REFERENCES

'Jones v. Saikewicz, 1977 Adv. Sh. (SJC) 2461 (Nov. 28, 1977). "George J. Annas, "The Incompetent's Right to Die: The Case of

Joseph Saikewicz," Hastings Center Report, Vol. 8, No. 1 (February 1978), 21-23.

3An easily accessible report and analysis of the brief favoring treatment, the brief opposing treatment, the brief amicus curiae of the Re- tarded Citizens of Massachusetts, and speculation about what the court's reasoning might have been, is Paul Ramsey, Ethics at the Edges of Life: Medical and Legal Intersections (New Haven: Yale Univer- sity Press, 1978), pp. 300-17, 335.

4In re Quinlan, 70 N.J. 10 (1976). 5137 N.J. Super. 227 (November 10, 1975). 6"How can one ever know vhat another person would or would not

do? How can we ever know what Saikewicz would have decided? Such questions may be unanswerable. But I would argue that they are proper questions. A correct resolution of them is more likely to come from a judicial decision after an adversary proceeding, in which all interested parties have fully participated, bringing in all their own perceptions, beliefs, and biases, than from the individual decisions of the patient's family, the attending physician, an ethics committee, or all these combined. It is only by using the admittedly difficult machinery of a legal proceeding that we can promote the incompetent's 'right of privacy and self-determination' and insure that it is not used as a 'license to kill' unwanted patients." George Annas, op. cit., p. 23. I would argue that these are improper questions-or rather, that answers to them are improper-unless a court's substituted judgment is anchored in some objective finding or discovery concerning a particular incompetent patient.

7In re Quinlan, 70 N.J. 10 (1976). For discussion, see Ramsey, op. cit., Chap. 7.

8That is, apart from the description of the basic circumstances at the beginning of the opinion.

9This is strange language, indeed, for the state's interest in protecting minor children from physician-parental refusals that may eventu- ate in their harsh neglect or even death.

10It is of some interest to note that the above abbreviated reference to In re Quinlan was to a passage in the latter opinion that quoted (without citation) an editorial by Richard A. McCormick, S.J. Fr. McCormick had written (JAMA, Vol. 234, No. 10, Dec. 8, 1975):

to stay steady on course. They need simply to adhere to long- standing practice so aptly described by Richard McCor- mick.19 The professional ethics of physicians will soon be destroyed if (a) doctors do not have the courage to allow the dying to die without resort to the immunity that courts of law may grant them, or if (b) some doctors begin to neglect the nondying who are in any measure treatable, or capable of being cared for, because their lives are deemed to be low- grade human. George Annas's article, "No Fault Death"20 could be tonic to put iron in physicians' blood to maintain their practice of letting the dying die by their own authority (and with familial consent when the patient is incompetent) while never neglecting the nondying for any personal or social worthiness reasons. Annas rightly says that "'quality of life' is not a medical decision at all." Annas's mistake is his supposition, following Saikewicz, that such judgments can be made by human courts; and that the promotion of an incompetent's "right of privacy and self-determination" will result from an adversary proceeding in which the perceptions, beliefs, and biases of all parties are aggregated into a subjective projection of a choice or interests upon an incompetent patient.21

By and large, physicians have learned to distinguish between curing the ill and comforting the dying. For years they have refused to treat the curable as if they were dying or ought to die; they have refused to neglect us. They have also refused to treat the dying as if they were curable; they have refused, at least many of them, to inflict an undesired prolongation of dying on us when it is clear that such "therapy" offers no human benefit.

I have argued elsewhere (op. cit., pp. 277-83) that the New Jersey Supreme Court could have rested its ruling in the Quinlan case on the foregoing extensive reasoning in its opinion, and thereby need not have introduced as its grounds Karen's recoverable or irrecoverable quality of sapient life.

11Here the court cited John A. Robertson, "Organ Donations by Incompetents and the Substituted Judgment Doctrine," Columbia Law Review, Vol. 77, No. 48 (1976), 48-78. I hope to show in a subsequent article that Professor Robertson's language moves-less quickly and more reluctantly-from the case history of this doctrine (grounded in at least some sort of finding or discovery of an individual's interests) to possible substituted judgments that might also be described as purely ascriptive. Robertson does sometimes seem to reason from the competent to the incompetent deemed to choose as competents would. He, however, believes there are grounds for de- scribing a court's substituted judgment in such cases as "objective" determinations. Robertson wants courts to "don the mantle of the incompetent." The Massachusetts court tries to tell the incompetent to done the mantle of competency.

12Strunk v. Strunk, 445 S. W. 2d 145 (Ky. Ct. App. 1969). 13Elsewhere (op. cit., pp. 315-17) I have suggested that this might

have been a finding on which to base the court's ruling. The court brought up this point, however, only incidental to excusing the judge's ill-chosen language, firmly rejected.

14Petition of Walter M. Piotrowicz in the Matter of Esther Piotro- wicz Guardianship, No. 1948, Massachusetts Probate Court, Essex County, December 23, 1977.

15Petition of Dennis McNulty and Donna McNulty in the Matter of Kerri Ann McNulty, No. 1960, Massachusetts Probate Court, Es- sex County, February 15, 1978.

16The New York Times, April 8, 1978. 17The New York Times, April 19, 1978. 18George Annas, "After Saikewicz: No Fault Death," Hastings

Center Report, Vol. 8, No. 3 (June 1978), 16-18. 19See note 10. 20See note 18. 21See note 6.

Hastings Center Report, December 1978 42



the saikewicz precedent: what's good for an incompetent patient?

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