Some are curious what the law has to say when it comes to making a decision about the care of someone who’s incapacitated. When it comes to the critically ill, when family members and health care providers disagree on the plan of the care, what is the appropriate role of the courts to intervene? Some thoughts.
You could: a) Do what the families say.
- This would mean removal of life support measures without consent constitutes battery. (However, any interference with the body without consent is battery.)
– the law is also obsessed with the autonomy of the individual. The needs of the family is largely irrelevant within the legal model.
Another scenario b) Do what the doctors say.
– But a point to make, courts should not interfere in end of life decision making.
– Specifically, in the US withdrawal of treatment is the traditional malpractice test, which measures physician actions against standards of medical care.
– Keep in mind though, critical care medicine is a complex area. Neither family members nor the courts have the medical knowledge to know understand conditions. For example, a family member may be optimistic if a patient squeezes their hand. The family member may not realize that this is simply a reflexive action and does not indicate any kind of meaningful brain function. As well, a family member may not be able to realize that the patient is in pain. Conversely, health care providers are sensitize to subtle signs of pain such as increased heart rate and blood pressure. Great deference should be granted to the health care providers. The judgement of family members is clouded by their emotional involvement, making it difficult for them to make a rational choice.
– The physician owes a duty of care to the patient, and not to the patient’s family. The wishes of the family should be taken into account, but their approval is not required.
-there is the argument that the withdrawal of care, even without consent, does not constitute battery. There is authority to support the proposition that battery only applies to positive acts; and that refraining from intervening does not constitute battery. Traditionally the courts have stated that a decision not to provide treatment is exclusively within the purview of the doctor and is not a decision to be made by the courts.
Or how about position c) Do what the courts say.
- -The courtroom with its legal absolutes is not the right place to decide end of life matters. There is a dichotomy between the legal perspective and the lived experience of those involved with an end of life decision.
-there is a role for the courts to play in end of life decision making.
– Complete deference to health care providers is inappropriate. Sometimes doctors do make mistakes. That is why there is such a thing as medical negligence.
-in the UK, court approval is required before treatment can be withdrawn from a patient in a permanent vegetative state.
– While courts do not have any expertise in making medical decisions, they do have expertise in resolving factual disputes and in making legal decisions. The very suggestion that there is such a thing as medical negligence does raise the fact that doctors can, and on occasion do make mistakes.
So those are three broad overviews of three separate situations that could take effect in the decision making process for health care with someone who is critically ill.