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Cruzan v. Director of Missouri Department of Health
Supreme Court of the United States (1989)


In its survey below of the leading state court decisions in the "right to die" field, 760 S.W.2d at 413-16, the Missouri Supreme Court noted the variety of approaches to the question of a third party's authority to assert an incompetent patient's right to refuse life-sustaining medical intervention. Professor Tribe has summarized the various decisions that have employed one form or another of the theory of "substituted judgment" in authorizing the withholding or withdrawal of life-sustaining medical intervention from incompetent patients:

"Even if a court would grant a patient's request to forego medical treatment were the patient able to express that wish, a further complication arises if the patient is unable to express that desire because incompetent. Most courts have extended to incompetent patients whatever rights competent patients have through the doctrine of substituted judgment. There are basically three approaches courts have taken to decision making in treatment decisions for incompetent patients. First, if the patient had when competent stated what decision she would have wanted made in this situation, those wishes tend to be deemed decisive. Second, where there is no direct evidence of the patient's preferences, if there is a relative or a friend who was close enough to the patient to be able to surmise how she would have decided, this relative or friend may be allowed to choose in the name of the patient. Third, if there is no basis for deciding what the patient would have decided, a decision is made according to what would be in the patient's `best interests', as defined by the court, by the patient's family, or by a court-appointed guardian."

Tribe, American Constitutional Law, sec.15-11 at 1368-69 (2d Ed. 1988) (footnotes omitted). As Professor Tribe points out, however, "[a)11 three forms of 'substituted judgment' are at best imperfect ways to effectuate the patient's right of self-determination. No matter how much evidence there is of subjective intent, how well the guardian knew the patient, and how well-intentioned the patient's guardian, family, and physician may be, there will always be some residual doubt that the decision made in fact expresses what the patient would have wanted done." Id. at 1369 (footnote omitted).

Elsewhere in his treatise, Professor Tribe describes the awesome potential for abuse inherent in "substituted judgment" cases:

"As courts become more sympathetic to arguments that persons have a right to die with dignity and that the state interest in the preservation of life may sometimes be subordinated to an individual's right to die, there is a possibility that doctrines which are intended to facilitate the exercise of this right will be exploited, either intentionally or unwittingly, to practice the most terrible discrimination against handicapped persons who require medical treatment to stay alive: judgments that their disabilities are such that persons afflicted with them would be better off dead and thus should be `allowed' to die. The most pernicious discriminatory bias against the disabled that one can imagine - the desire of families or others to dispose of handicapped persons whom they simply consider undesirable - might be effectively disguised behind their requests, made in the name of the disabled's right to die, that medical treatment be withheld from the disabled. The right to die, in other words, may offer a convenient pretext for profoundly discriminatory decision making."

Tribe, supra, sec.16-31 at 1598-99 (footnotes omitted).

At least one prominent state court has chosen to respond to this legal and moral dilemma by insisting that life-sustaining treatment be provided to incompetent patients unless there is "clear and convincing" proof that the patient himself would have refused such treatment under his current medical circumstances. Matter of Storar, 52 N.Y. 2d 363, 420 N.E.2d 64, 72, cert. denied 454 U.S. 858 (1981). The New York Court of Appeals relied in major part on Addington v. Texas, 441 U.S. 418 (1979), in which this Court held that even in civil cases, which typically require no more than a "preponderance of the evidence," the higher "clear and convincing" standard is an element of due process whenever the case involves "particularly important civil interests." 441 U.S. at 424.

Last year, in Matter of Westchester County Medical Center, 72 N.Y. 2d 517, 531 N.E.2d 607 (1988), the New York Court of Appeals had occasion to apply its earlier decision in Storar. The case involved an elderly non-terminal mentally incompetent hospital patient, whose daughters resisted the hospital's effort to insert a nasogastric tube to provide her with sustenance that would keep her alive. While she had been competent, the woman had on several occasions made statements to the effect that she would not wish to be kept alive by artificial means if she were unable to care for herself. Applying the Storar "clear and convincing" evidence standard, the Court of Appeals concluded that the circumstances under which the woman had made those statements did not demonstrate clearly and convincingly that she would have refused nutrition and hydration in her current non-terminal medical circumstances. 531 N.E.2d at 614-15.

In the course of its decision, the Court of Appeals in Westchester County Medical Center expounded upon the rationale underlying the Storar standard and the considerations relevant in implementing the standard:

"Every person has a right to life, and no one should be denied essential medical care unless the evidence clearly and convincingly shows that the patient intended to decline the treatment under some particular circumstances. This is a demanding standard, the most rigorous burden of proof in civil cases. It is appropriate here because if an error occurs it should be made on the side of life.

"...The persistence of the individual's statements, the seriousness with which those statements were made and the inferences, if any, that may be drawn from the surrounding circumstances are among the factors which should be considered.

'"The ideal situation is one in which the patient's wishes were expressed in some form of a writing, perhaps a `living will,' while he or she was still competent. The existence of a writing suggests the author's seriousness of purpose and ensures that the court is not being asked to make a life-or-death decision based upon casual remarks."

531 N.E.2d at 613 (citations omitted).

Like the New York Court of Appeals, the Missouri Supreme Court has insisted that third parties present clear and convincing evidence that an incapacitated patient would have refused life-sustaining medical intervention under her current condition. 760 S.W.2d at 425. Its evaluation of the strength of the evidence in this case -which, as noted above, is beyond the scope of this Court's review -- led it to conclude that no such evidence was present here. Id. at 424.

The question here is whether states like Missouri and New York are constitutionally precluded from adopting the "clear and convincing" standard as a means of ensuring that the third party is properly advancing the incapacitated patient's liberty/privacy right. We submit that the question answers itself. If anything, in view of the due process analysis of Addington v. Texas, supra, and in view of the inherently personal nature of the liberty/privacy right the third party is seeking to assert on the patient's behalf, it would seem that the "clear and convincing" standard should be constitutionally required. States that allow third parties to decide that patients should die without such probative evidence of the patient's intent run the risk of countenancing "the most pernicious discriminatory bias against the disabled that one can imagine." Tribe, supra, at 1598.

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