Academic journal article Issues in Law & Medicine

Medical Treatment Rights of Older Persons and Persons with Disabilities: 1992-93 Developments and Emerging Trends

Academic journal article Issues in Law & Medicine

Medical Treatment Rights of Older Persons and Persons with Disabilities: 1992-93 Developments and Emerging Trends

Article excerpt

This article reviews legal developments from the beginning of October 1992 to the end of September 1993. Three areas of concern will be addressed: medical decisionmaking, assisted suicide, and the impact of health care reform on end-of-life decisions. The article concludes with a discussion of emerging trends.

Medical Decisionmaking by Competent Adults

Thor v. Superior Court of Solano County (California)

The California Supreme Court recently considered whether "the possible inadequacy of medical and related support services for [patients - in this case a prisoner] may compromise the voluntariness of their decision to forego life-sustaining treatment."(1) The supreme court observed that individuals with "debilitating or life-threatening" conditions inevitably will be affected by "resultant depression, limited financial resources, and minimal family or social support systems."(2) While noting that these factors and "the lack of rehabilitative personnel or facilities, psychological counseling, or necessary physical accommodations of the disability may unduly influence" a patient to refuse life-sustaining treatment, the court determined that such factors did not "inherently" preclude a rational choice to die.(3) Absent any proof that the prisoner in this case was choosing to die because he was depressed or because he lacked necessary support services, the court affirmed his right to refuse a feeding tube as a legitimate exercise of self-determination.(4)

In re Martin (Michigan)

The Michigan Court of Appeals ruled that a patient declared generally incompetent and placed under a guardianship because of head injuries may still be specifically competent to determine his own medical choices.(5) The case involves a petition to withdraw the patient's feeding tube brought by the patient's wife and guardian. The trial court ruled that, though there was clear and convincing evidence that before his head injuries were sustained the patient had objected to being maintained in a "helpless" condition, the petition had to be denied because the evidence consisted only of oral statements."(6)

The appellate court remanded the case and instructed the trial court to first determine the patient's present decision-making capacities before examining prior evidence of intent.(7) If the patient is capable, then the trial court must determine whether he now accepts his present care, as his sister and mother contend, or opposes it, as his wife contends.(8) The appellate court established the following criteria for determining decisional capacity:

The test . . . is whether the person, (1) has sufficient mind to

reasonably understand the condition, (2) is capable of understanding

the nature and effect of the treatment choices, (3) is aware of the

consequences associated with those choices, and (4) is able to make an

informed choice that is voluntary and not coerced.(9)

On remand, the patient was examined by several neuropsychologists and a neurologist. Of particular note is one of the tests used to determine the patient's capacity and views:

Dr. [Walter] Zetusky . . . spoke to Michael about individuals who are

dead or alive. He questioned Michael as to whether dead people could

attend baseball games, or other similar events; he asked whether

George Washington could fly a kite, eat a hot dog, or attend a baseball

game. . . . In order to determine whether [Michael's] head nod

responses were valid, Dr. Zetusky asked Michael to both nod |yes' and

to pinch his right index finger and his right thumb together (attached

to an electromyogram) once for |yes' and twice for |no,' so that

Michael's responses could be validated.(10)

All but one of the experts testified that the patient was capable of understanding the difference between life and death and preferred to continue his life-sustaining treatment. …

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