Public Health Law Map - Beta 5 - Medical and Public Health Law Site

where family interests conflict with those of the individual.
Although preserving patient autonomy is inconvenient for terminally ill
incompetent patients, once autonomy is lost, the consent process will be a
battleground for control of the physician–patient relationship. The legal basis of
this relationship is the same personal autonomy that this substituted consent denies.
If the Supreme Court creates a constitutional right for families to substitute their
decisions for patients, this right will not be limited to termination of life-support
cases. For example, such a constitutional right could be used as support for laws
requiring husbands to be consulted about their wives’ access to contraception or
wives to be consulted about their husbands’ cardiac surgery. It would be especially
troubling for minors because minors are incompetents according to the law. The
convenience of simplifying a limited number of termination of life-support
decisions could be rapidly overshadowed by unprecedented intrusions into the
physician–patient relationship.
c) The Problem of Relatives
If it is accepted that family members and spouses have a right to substitute their
decisions for a patient, then physicians will find themselves talking to relatives in
other situations, such as abortion counseling. Protecting patient autonomy has a
great benefit to physicians: the physician always knows who has the right to consent
to medical care. Although physicians dislike being involved in guardianship
proceedings, the alternative is uncertainty in obtaining consent. Relatives frequently
disagree over the care a patient should receive. The physician must choose the
relatives with whom to consult. This raises questions such as whether two children
trump one spouse. Does any relative with an attorney trump the rest of the family?
If the physician chooses whom to consult for consent, he or she will also be legally
liable if the choice is incorrect. If no family member has a right to consent, then no
family member has the right to sue for failing to be consulted about the patient’s
care. Conversely, if family members may be consulted, then they have a right to sue
if they are unhappy with the physician’s decisions.
K. Assisted Suicide
The United States is conducting a national experiment with assisted suicide. At least
one state has legalized it—Oregon [Egan, T. In Oregon, Opening a New Front in the
World of Medicine. New York Times. November 6, 1997;A26.] — albeit with substantial
restrictions, and several others have specifically banned it. Some ethicists and law
professors favor a right to assisted suicide as an extension of a patient’s right to control
their own medical care. [Baron, CH. Pleading for physician-assisted suicide in the
courts, W N Eng Law Rev. 1997;19:371.] Many others oppose it on philosophical
grounds in the individual case and as a dangerous slippery slope issue for society.
[Kamisar, Y. The “right to die”: on drawing (and erasing) lines. Duquesne Law Rev.
1996;35:481; Arras, J. Physician-assisted suicide: a tragic view. J Contemp Health
329