At common law, the doctrine of “informed consent” protected individuals from any unauthorized touching. Sard v. Hardy, 281 Md. 432, 439, 379 A.2d 1014, 1019 (1977) (“The fountainhead of the doctrine of informed consent is the patient’s right to exercise control over his own body, at least when undergoing elective surgery, by deciding for himself whether or not to submit to a particular therapy.”)[1] This is one reason why patients must sign consents prior to surgery before receiving treatment.
This doctrine formed much of the basis for the so-called “living wills” which permits an individual to state in advance that he/she does not want heroic measures if death is imminent. As originally conceived, a living will is a document signed by a person while competent to be effective even in the event of future incompetency that stated that the person did not consent to any future medical treatment if death was imminent.[2]
The first high-profile case addressing the right to refuse treatment was In Re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). Karen Quinlan had suffered from irreparable brain damage and was in a chronic and persistent vegetative state. Karen’s father, and natural guardian, sought to terminate life support measures that were keeping his daughter alive. Mr. Quinlan was a devout Catholic and he only sought these measures after deep consideration and after consulting with his priest. The New Jersey Court permitted support to his daughter to be discontinued based on her right to privacy which is mandated by the U.S. Constitution. The New Jersey decision involved a balancing of Karen’s privacy interest with the state’s interest in the preservation and sanctity of human life. In the Quinlan case, “The State’s interest contra weakens and the individual’s right to privacy grows as the degree of bodily invasion increases and the prognosis dims.”[3] The exercise of Karen’s privacy right could only be exercised, of course, by her father/guardian.
In 1990, the U.S. Supreme Court looked at the issue in Cruzan v. Missouri, 497 U.S. 261, 110 S.Ct. 2841 (1990). In Cruzan, the issue was limited to whether Missouri could impose a standard of proof on whether an individual had made such a direction to exercise the right to refuse treatment. In Cruzan, the state of Missouri was found to have properly refused to disconnect a young woman from life support because there was no indication as to her wishes that would meet the Missouri standard of clear and convincing evidence:
“The difficulty with petitioners’ claim (that an incompetent person should possess the same right to refuse treatment as a competent person) is that in a sense it begs the question: an incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right. Such a ‘right’ must be exercised for her, if at all, by some sort of surrogate. Here, Missouri has in effect recognized that under certain circumstances a surrogate may act for the patient in electing to have hydration and nutrition withdrawn in such a way as to cause death, but it has established a procedural safeguard to assure that the action of the surrogate conforms as best it may to the wishes expressed by the patient while competent. Missouri requires that evidence of the incompetent’s wishes as to the withdrawal of treatment be provided by clear and convincing evidence. The question, then, is whether the United States Constitution forbids the establishment of this procedural requirement by this State. We hold it does not.”
The Cruzan court essentially followed the balancing test applied in Quinlan but found that Missouri law, in fact, established a supportable condition for determining what the patient would have wanted. The underlying holding, of course, was that a person has the right to refuse treatment and that, if properly expressed before incompetency, it should be upheld. Justices Brennan, Marshall, Blackmun and Stevens dissented. Justice Brennan’s dissent would uphold the right of a family member or someone else who has demonstrably shown to be close to the incompetent patient to make health care decisions on his or her behalf:
“A State’s legitimate interest in safeguarding a patient’s choice cannot be furthered by simply appropriating it. … The majority justifies its position by arguing that, while close family members may have strong feeling about the question, ‘there is no automatic assurance that the view of close family members will necessarily be the same as the patient’s would have been had she been confronted with the prospect of her situation while competent.’ I cannot quarrel with this observation. But it leads only to another question: is there any reason to suppose that a State is more likely to make the choice that the patient would have made than someone who knew the patient intimately? To ask this is to answer it. As the New Jersey Supreme Court observed: ‘family members are best qualified to make substituted judgments for incompetent patients not only because of their peculiar grasp of the patient’s approach to life, but also because of their special bonds with him or her … It is … they who treat the patient as a person rather than a symbol of a cause.’ The State, in contrast, is a stranger to the patient. … [A] State may exclude from consideration anyone having improper motives. But a State generally must either repose the choice with the person whom the patient himself would most likely have chosen as proxy or leave the decision to the patient’s family.”
In Maryland, the Court of Appeals wrestled with a case in the setting of dueling guardianship petitions. Mack v. Mack, 329 Md. 188 (1993). In that case, a young man had sustained severe injuries due to an auto accident. He was in a coma and the prognosis was that he would never recover consciousness. The argument involved whether the man’s wife or his father would be guardian. The wife had moved to Florida and sought recognition of a Florida guardianship in Maryland. Florida law would have permitted the guardian to make decisions to remove life support. The father was seeking guardianship under Maryland law claiming that the Florida guardianship was simply a ruse to permit the termination of his son’s life. In Mack, the Court of Appeals held that medical science had permitted the extension of life thus creating difficult health care decisions which could not be resolved by a court applying the common law. The Court of Appeals asked (perhaps directed) that the General Assembly look at this issue:
“Were this Court to conclude that it was not in Ronald’s best interest to live, we would be doing much more than simply applying to the facts of Ronald’s case a general equitable principle governing decisions concerning a ward of a court. Having concluded that Ronald’s individual intent is unknown, a conclusion that it is in Ronald’s best interest to die would be based on his existence in a persistent vegetative state. That being the precedent, artificially administered sustenance should be withheld from all persons in a persistent vegetative state whose actual desires concerning the administration of such sustenance are unknown. Examination of that precedent would reveal that persons in a persistent vegetative state have no cognition and cannot take care of themselves. As a logical progression from that precedent, case eventually would be presented submitting that the best interest of the most severely retarded and feebleminded, who require extended care, who have practically no cognition, and who are too disabled to feed themselves, would be to have sustenance withheld. The question of whether to adopt a quality of life-best interest standard concerns our societal values in a most fundamental sense. The answer to that question is quintessentially legislative. Unless and until current public policy, as we perceive it, is changed by the General Assembly, sustaining Ronald and other persons like him, whose desires concerning the withdrawal of artificial sustenance cannot clearly be determined, is a price paid for the benefit of living in a society that highly values human life.”
The 1993 General Assembly enacted sweeping changes to Maryland law. Title 5, Subtitle 6 of the Health-General Article of Maryland Code. Generally, Maryland has embraced the approach suggested by the dissent in that if competent person names a surrogate that surrogate will serve if and when the patient is incompetent and if a person does not name a surrogate then the statute provides an order of whom shall serve as such a surrogate decision maker. The Maryland statutory scheme vests the liberty interest of a person in their own hands and, if not able to exercise it, in the person chosen by that person or by close family members.
[1] The Sard court quoted, as do many decisions in many courts, Judge Cardozo in the New York Court of Appeals case of Schloendorff v. Society of N.Y. Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914), that “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” [2] The apparent origin of this proposed technique was contained in the 1969 law review article: Luis Kutner, “Due Process of Euthanasia: The Living Will, a Proposal,” 44 Ind. L. J. 539 (1968-9). See T.P. Gallanis, “Write and Wrong: Rethinking the Way We Communicate Health-Care Decisions,” 31 Conn. L. Rev. 1015, 1022-3 (1999.) [3]In Re Quinlan at 667/41.
