The relationship between a doctor and a patient is supposed to be a partnership. The doctor is supposed to inform the patient about what is making him sick, how it can be treated and what the probable outcome of the treatment will be. The doctor should also tell the patient about possible risks associated with the treatment. The patient is supposed to weigh that information by balancing the risks of treatment against the benefits offered, to make a decision that is communicated to the physician. This whole process is called "informed consent."
Living Wills
When we make a decision to withdraw or refuse treatment that is necessary to preserve our life, the law balances a second set of considerations. The law balances our society's interest in preserving life, preventing suicide and protecting vulnerable individuals and their families, against society's interest in upholding the patient's right to privately exercise informed consent.
The legislature in New Jersey has defined a patient's right to determine ahead of time not to accept medical treatment necessary to preserve their own life. The legislature has created a document called an Advance Directive or Living Will allowing a person to determine, in advance, what treatment they will accept. Before treatment can be refused, two physicians have to agree that an individual is in a coma, or has a serious medical condition, and is terminally ill.
Further, if the person has named a health care representative to make medical decisions for them, the health care representative can also decide to refuse or withdraw life-sustaining treatment when a patient has a serious, irreversible, terminal illness or condition and the health care representative decides that the likely risks and burdens associated with treatment outweigh the benefits from such treatment.
While the legislature has made some very specific determinations of how it balances society's interest in sustaining life against the patient’s rights to make their own medical decisions, the Courts have had to determine how a medical decision is made when an individual has not signed a Living Will.
The Basic Rule
When an individual is competent and living at home, and as long as they are properly informed about their prognosis, the alternative treatments available and the risk involved in the withdrawal of life- sustaining treatment, that person can direct their physicians to refuse treatment, as long as that decision is made voluntarily, without coercion.
To such a patient who is at home, one Court required two non-attending physicians to examine the patient to confirm that she was competent and fully informed. The Court also stated that a Court should usually not get involved in an individual’s informed decision, unless there is a conflict among the physicians or family members.
An Incapacitated Person
The Supreme Court of New Jersey looked at these issues when deciding the case of Claire Conroy, an elderly, confused woman in a hospital on a ventilator. In that case, the Court required a legal guardian be appointed since Ms. Conroy did not have the mental ability to exercise informed consent. It was the guardian's job to do what Ms. Conroy would want. If the guardian believed that withholding or withdrawing life-sustaining treatment was what Ms. Conroy wanted, the Court required the guardian to notify the Office of the Ombudsman for the Institutionalized Elderly of New Jersey. Any friend, family member or physician, who believed that withdrawing or withholding the treatment was not in Ms. Conroy's best interest was also required to contact the Ombudsman.
The end of life decision to be made by the guardian depended upon the information that the guardian and others have been able to discover about a patient's wishes. Three possibilities exist:
1. If an individual has clearly expressed their wishes to receive treatment or not to receive treatment, those wishes should be followed.
2. When there is no clear and convincing evidence of an individual's wishes, but there is good evidence of the individual's desire to stop treatment, and the Ombudsman, family, friends, physician and guardian agree that the burden of treatment exceeds the benefits of staying alive, the treatment is not given.
3. If there is absolutely no evidence of what an individual desires, but the Ombudsman, family, friends, physician and guardian agree that the burden of the treatment outweighs the benefit derived from living and they agree that recurring pain makes treating the patient inhumane, the treatment is not given.
In the case of Claire Conroy, the Court appointed Claire's father as a guardian and authorized him to remove Claire Conroy from the respirator, on the condition that the rest of the family and the attending physician concurred with his decision, and that the hospital's ethics committee verified her terminally ill condition.
A Person in A Coma Who Is Terminally Ill
While Claire Conroy was receiving oxygen through a ventilator, Nancy Allen Jobes was in a coma and was receiving food through a feeding tube. Because of complications from an operation after an automobile accident, Ms. Jobes lost the ability to think, but her brain was able to send the necessary signals to her body to keep it functioning.
After finding that Ms. Jobes was in a coma, the Court considered the evidence of her wishes. For example, a cousin said Ms. Jobes was interested in obtaining a card to put in her wallet directing others not to provide medical care to her, but no such card was found in her wallet. Ms. Jobes also casually mentioned to her husband that she would not want to be kept alive under the conditions of Karen Quinlan. The Court held that these types of off-hand remarks were not clear and convincing evidence of Ms. Jobes' wishes.
The Court stated that a guardian did not have to be named for individuals in a coma. The Court decided that, instead, a family member, such as a spouse, parent, an adult child or a sibling should make an end of life decision. Generally, when a patient is in a coma, a guardian needs to be named if there was no close family available. In the Conroy case, the Court required the appointment of a guardian to make decisions. In the Jobe case the Court decided that if someone is in a coma, a guardian is not required and a close family member or friend is authorized to make decisions. Both cases required the physicians to say the patient was terminally ill.
A Person in A Coma Who Is Not Terminally Ill
While the Conroy case set up standards for a terminally ill incapacitated person, and the Jobes case set up standards for a terminally ill person in a coma, the case of Hilda Peter dealt with a patient who was in a coma and was not expected to die in the near future.
The Supreme Court stated that it was irrelevant whether Hilda Peter was suffering from a terminal illness because she was in a coma. In a coma she could have no conscious enjoyment of life, so the balancing test of the Conroy case was not applicable, and her quality of life could not be weighed against the strength of evidence that she would decline
treatment.
The Court also recognized that in some situations, a more distant relative functions as part of a patient's immediate family, and that in other situations, a close family member does not act to protect a patient's interest. In both of these cases, the health care professionals providing care are in a position to decide whether to treat a person as a close family member or, in the alternative, to refuse to accept the wishes of a close family member.
In the case of an individual in a coma, who is not terminally ill, if the guardian and family of a patient conclude that the patient would not want to be sustained by life supporting treatment, and the attending physician agrees that the life support apparatus should be discontinued, and if the attending physician and Hospital Prognosis Committee verify the patient is permanently in a coma, the guardian can refuse treatment on the patient's behalf. Interested parties need not have clear and convincing evidence of the patient's intention, they need only render their best judgment as to what medical decision the patient would want them to make.
For more information regarding the issues addressed in this Newsletter, please contact Michael Bolton, Esq. at (973) 425-0497.
