1. EDUCATION

Your Constitutional Rights

The United States Constitution guarantees your right to make decisions regarding your health care, including the right to refuse medical treatment. In the landmark case of Cruzan v. Director, Missouri Department of Health, the United States Supreme Court held that the right to refuse medical treatment was a “liberty interest” protected by the due process clause of the Fourteenth Amendment. Prior to that decision, many state courts held that the right to privacy included the right to refuse medical treatment.

Informed Consent – You Are Competent

In order to protect your constitutional rights, your health care providers must usually obtain your informed consent prior to treatment. Informed consent requires that you:

• Are mentally competent to make the decision;
• Have been given all the information necessary to make an intelligent decision; and
• Voluntarily consent to the treatment.

Informed consent guarantees your right to self-determination regarding your health care.

Informed Consent – You Are Incompetent

But what happens if you are incompetent? In Cruzan, the court acknowledged that an incompetent person has the same constitutional rights as a competent person. However, with an incompetent person, some one else (a surrogate) must exercise her rights.

Historically, your surrogate was a guardian or conservator appointed by the court. However, over the years many states have passed statutes that permit your family members to make these decisions without the necessity of appointing a guardian or conservator. These “family consent statues” normally establish a priority for your relatives, based upon their relationship to you. These relatives have the right to make medical decisions if you failed to name a surrogate while competent. Today, almost all states allow you, in advance, to designate a surrogate to make health care decisions in the event you ever become incompetent.

Decisions by Your Surrogate

Courts have acknowledged that while you have the right to self-determination, a state has a competing interest in protecting its citizens, including preserving life. Normally your decision to refuse treatment made while competent will outweigh the state’s competing interest in preserving life.

However, states are more concerned in protecting individuals who are incompetent and therefore cannot protect themselves. This protection normally includes certain procedural safeguards that must be met before a surrogate can make decisions on your behalf.

Clear and Convincing Evidence

Many states require “clear and convincing” evidence of your desire before a surrogate is allowed to refuse medical treatments, particularly the withdrawal or withholding of life-sustaining treatments. Unfortunately the “clear and convincing” standard is the highest burden of proof in a civil proceeding. Obviously written evidence best meets this burden of proof, but oral statements made while you were competent may be sufficient.

Substituted Judgment

If there is not enough “clear and convincing” evidence, then some courts have allowed the surrogate to refuse medical treatment if there is enough evidence to support the doctrine of “substituted judgment.” Under this doctrine the surrogate bases her decision on what she believes is consistent with your known personal value system, including philosophical, theological and ethnical values. In other words the surrogate is trying to do what you would have wanted done.

Best Interest

Finally, absent clear and convincing evidence or sufficient evidence to allow substituted judgment, some courts have allowed the surrogate to refuse medical treatment if it is in your best interest. Under the best interests standard the surrogate weighs the burdens (including your pain and suffering) against the benefits of the medical treatment.

Conclusion

In conclusion, in order to provide the best assurance that you wishes will be carried out, it is vital that you establish “clear and convincing” evidence of your desires regarding medical treatments, particularly the withdrawal or withholding of life-terminating procedures. The law allows you to set forth “clear and convincing” evidence by signing certain health care documents, known as Advance Directives.

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