38 Pages Posted: 14 Oct 2010
Date Written: 1989
End-of-life decisionmaking is very often accompanied by high stakes and human drama, as evinced in the 1988 decisions of In re Westchester County Medical Center (O’Connor) and Cruzan v. Harmon. This article analyzes these two legal battles both for their place in the jurisprudence of medical treatment decisionmaking of the 1980s and foreshadowing of 1990s conflicts.
The article begins with a discussion of the O’Connor and Cruzan decisions. In O’Connor, the New York Court of Appeals ordered treatment of a significantly brain damaged patient over and above the wishes of the family, requiring “clear and convincing evidence” of the patient’s wishes to stop treatment. In Cruzan, the Missouri Supreme Court refused to order continued treatment of a patient in a persistently vegetative state, but it did so on pro-life grounds and refused to recognize a self-determination framework for end-of-life decisionmaking. This judgment was affirmed by the United States Supreme Court.
The article then presents three ways in which O’Connor and Cruzan may be distinguished from the mainstream of cases. First, the decisions may be limited to cases of medically provided nutrition. Second, the decisions may not apply to cases involving terminally ill patients. Finally, the opinions may not reach the case where the patient’s own decision is clear. The article argues that despite being arguably limited, the O’Connor and Cruzan decisions represent a significant and growing challenge to the scope of an individual’s right to refuse treatment.
Finally, the article examines O’Connor and Cruzan as reflections of a shifting decisionmaking framework. The 1980s saw a shift from “medicalization” to “legalization,” from physician control to control by law through patient’s rights. O’Connor and Cruzan portend a new shift—this time from patient’s rights to decisionmaking by the political processes of state legislatures or administrative agencies.
Wary of this new shift, this article advocates a self-determination model for formerly competent patients and a greater role for family members when the patient in question has never been competent. Courts have often referred to their own discomfort in allowing nontreatment; there should be discomfort as well in using the power of the state to compel medical intervention.
Suggested Citation: Suggested Citation
Johnson, Sandra H., From Medicalization to Legalization to Politicization: Cruzan, O'Connor and Refusal of Treatment in the 1990s (1989). Connecticut Law Review, Vol. 21, p. 685, 1989. Available at SSRN: https://ssrn.com/abstract=1676254
By Susan Wolf
By Susan Wolf