In end-of-life treatment cases that reach the courts, the patient often dies before the court can rule. Litigation is takes longer than the rest of the patient's life. That is what happened in the case of Daniel Sanger.
Late last month, Sanger's mother obtained a TRO to reinsert a feeding tube that Sanger's wife had refused. Yesterday, the court was to address who was the appropriate decision maker for Sanger. But that hearing was dismissed as moot, since Sanger died. Sadly, this sort of result frequently means that society is deprived of judicial guidance on these questions.
2 comments:
Didn't realize that Sanger had already died and that the real issue of choice between life and certain death was moot.
I don't think the courts want to get involved in this "medical futility issue" and be required to investigate the motivations of the surrogate(s)--because the courts themselves then become the surrogate decision makers.
I agree with you that there needs to be procedural justice for the patients and that often the surrogates are not making decisions in the best interests of the patients.
But, as long as "informed consent" to outpatient palliative care and hospice care is not mandated under the law, many patients will be deprived of making these life or death decisions for themselves when the treatment itself threatens their lives.
In emergemcy situations in the hospital, I agree with you that a "neutral" body outside of the hospital (not the in-hospital ethics committees) should be available immediately to educate the surrogate decision makers(s) and to mediate disputes on behalf of the patients in the patients' best interests.
But, I agree with the courts that there must clear and convincing evidence that patients want there lifes shortened and that surrogates have the "greater" duty to produce clear and convincing efidence that they are honoring the wishes of the patient.
Thank you for your comments.
The court need not become the substitute decision maker. Instead, the court only uses the evidence to determine whether the presumptive decision maker (here, wife) is acting appropriately. If she is not, then the court will appoint another decision maker. The court need not make the treatment decision itself.
I disagree with a requirement for clear and convincing evidence. That is VERY tough to establish. It will CREATE far more error (i.e. treating those who did not want to be treated) and it will PREVENT. The trend is against such a requirement (e.g. NY FHCDA).
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