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equest by a patient-appointed surrogate. The termination of life-support for
minors, long- term medically incompetent patients, and patients who have not
made their wishes known while competent are more complex and generally require
the intervention of a judicially appointed guardian.
The most compelling cases for judicial intervention are those in which a patient
who refuses curative therapy has dependent family members. These are almost
exclusively persons with religious objections to some or all medical care. This may
be because refusing curative treatment without a religious rationale results in the
patient’s being treated as an incompetent. Although courts have ordered treatment
in some cases, recent case law, Fosmire v. Nicoleau, [Fosmire v. Nicoleau, 551
N.E.2d 77 (N.Y. 1990)] affirmed the right of a pregnant woman to refuse blood
transfusions despite the risk to her fetus:
In sum, the patient as a competent adult, had a right to determine the course
of her own treatment, which included the right to decline blood
transfusions, and there is no showing that the State had a superior interest,
in preventing her from exercising that right under the circumstances of this
case. [Id. at 84.]
Cases such as Fosmire are ethically the most difficult to resolve. The case is
brought on behalf of family members, usually minor children, who depend on the
patient. If the necessary treatment is forced on the patient, the patient will recover
and the issue will be resolved. The appellate judges in Fosmire had the luxury of
upholding the patient’s autonomy without having blood on their own hands: the
trial court’s order to give blood had been carried out immediately. The appeal
sought only to second-guess its validity.
Physicians in a case like Fosmire would properly question whether it would be
ethical, although legal, to stand by and not seek a court order to force treatment.
Societal interest in the well-being of the dependents would also favor intervention.
The trial court’s ordering of the treatment might offend some people, but it would
not shock the conscience of members of the general public. It is cases such as this
that fuel ethical debates, yet these cases have little to do with termination of life-
support issues.
Termination of life-support cases, in general, do not involve the refusal of curative
therapy. If a competent adult refuses curative life support for religious reasons,
these cases should be treated separately from the termination of noncurative life
support. It is legally permissible to comply with such requests without legal
process. It is ethically questionable, however, to accept a refusal of curative
therapy without using judicial process at least to verify the sincerity of the request.
In extreme situations, the patient’s request is tantamount to a request for assistance
in committing suicide. [Kane EI. Keeping Elizabeth Bouvia alive for the public
good. Hastings Cent Rep. 1985;15:5.]
d) The Simple Cases
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