__________________________________________________________________ Medical Ethics for Physicians
The first ruling came on July 27, 1988 from Judge Charles Teel of the Missouri court who agreed with the parents and, acting for Nancy Cruzan, now a ward of the court, gave permission to have the feeding tube removed. However, in a 4-3 decision by the Missouri Supreme Court on November 16, 1988, that ruling was overturned and upheld in the U.S. Supreme Court on June 25, 1990. Their reason for overturning Judge Teel’s decision was there had been no clear, convincing evidence that Nancy Cruzan had indicated verbally or in writing what her prior wishes would have been in the situation she now experienced. On December 14, Judge Teel once again sustained his decision to allow the discontinuance of the artificial feeding and hydration tube. The difference between his first and final judgments was the new “clear and convincing evidence,” required by the State, which was brought forward on November 1 by three new witnesses. These witnesses were friends of Nancy Cruzan who testified for the first time that she had told them many years before that she would have wanted to terminate the tube feeding if she was in a situation like the present one. The “clear evidence” was presented in three points made by Judge Teel [7]: • “That the intent of our ward, if mentally able, would be to terminate her nutrition and hydration.” • “That there was no evidence of substance to cause belief that our ward would continue her present existence, hopeless as it is, and slowly progressively worsening.” • “That the co-guardians, Lester L. and Joyce Cruzan, are authorized to cause the removal of nutrition and hydration from our ward, Nancy Beth Cruzan.” It is important to emphasize that the U.S. Supreme Court’s ruling does not require all states to mandate clear and convincing evidence of anything before life support may be terminated. Each state remains free to set its own standard of proof. Each state may decide to require or not to require clear and convincing evidence of the incompetent individual’s previously determined wishes. Over the years, from the Quinlan and Cruzan cases to the many others (including the more recent Schiavo case) that address patients’ rights to refuse treatment and the idea of who can speak for incompetent patients, state courts began to address the issues explicitly. Multiple states reached substantial agreement that: • Competent patients have a constitutional and common- law right to refuse treatment. • Incompetent patients have the same rights as competent patients. • The interests of the state opposing this right are virtually nonexistent in the case of competent patients and very weak in the case of incompetent patients whose prognosis for recovery is dim.
• The decision-making process should generally occur in the clinical setting without resort to the courts, which are available to assist in decision making when an impasse is reached. • In making decisions for incompetent patients, surrogate decision makers should effectuate the patient’s own preferences expressed before the patient lost decision- making capacity (the subjective standard); however, if these references are not known, the surrogate, based on whatever evidence is available, should approximate what the patient would have wanted (the substituted judgment standard). If there is no information about the patient’s preferences, the surrogate should make a decision that is in the patient’s best interests (the best interests standard). • In ascertaining an incompetent patient’s preferences, the attending physician and surrogate may rely on the patient’s “advance directive,” which may be written or oral. • Artificial nutrition and hydration are medical treatments and may be withheld or withdrawn under the same conditions as any form of medical treatment. The Nancy Cruzan case was the ultimate landmark decision that led to legislation that would give legal rights to individuals to make healthcare decisions for themselves. Those decisions could then be written down as directives for use in the future should the individual not be able to speak for him or herself and found to be in a healthcare situation requiring decisions regarding further treatment choices (or refusal of such) in the life of that individual. This legislative act became known as the Patient Self-Determination Act of 1990. PATIENT SELF-DETERMINATION ACT (PSDA) OF 1990 Although this multi-state consensus was not without exception, these were the precursor principles to the PSDA of 1990, a federal law given over to the states to implement as of December 1, 1991 [8]. This new legislation applied to hospitals, nursing homes, hospice, HMOs/PPOs, and any other facilities that received funds from Medicare or Medicaid programs. It mandated that each of the affected facilities must advise their patients of their legal rights and options for accepting or refusing treatment if they (the patients) should become unable to speak for themselves. The primary provisions of the PSDA are: • Providers must offer written information and summaries of pertinent institutional policies to all adult patients regarding their rights under state laws to accept or refuse treatment and to make advance directives. • The patient’s record must be documented to indicate whether the patient has an advance directive.
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