For Them Rather Than by Them

When we do not know what forms of life support patients want and for how long, should we presume that they want all available means to keep them alive? If not, under what circumstances should we presume the opposite?[1] And to the extent that using (or not using) certain methods of life support are permissible but not obligatory, who ought to decide when to treat and when not to? With the dispersion of high-technology medicine around the world, the tension among autonomy, beneficence, and sanctity of life that occurs every day in hospitals spills over ever more frequently into courts and legislatures as well. In the United States, lawmakers have shown great enthusiasm over the past decade for advance directives; forty-seven states now have legislation authorizing instructional directives, such as living wills, and forty-eight have laws on proxy directives, such as durable powers of attorney for health care. Yet relatively little is known about directives' actual efficacy or about how to ensure that decisions made pursuant to them best serve the interests or the wishes of the people who execute them. Two recent events--one in New Zealand and the other in Oregon--mark a new direction in this area. Auckland Area Health Board v. Attorney General[2] involved a fifty-nine-year-old man (called "Mr. L" in court documents) who suffered a severe case of Guillain-Barre syndrome, a progressive, irreversible neurological condition that left him motionless and unable to communicate by any means. Besides total muscle degeneration, his denervation was so severe that even his auditory nerves did not work and his pupils were fixed and dilated, though his doctors were unsure that his visual pathways did not function. Because he lacked means to communicate, it was not known whether his brain could process information. In light of the sensory deprivation, his brain was at most "in a drowsy semi-working state." With the ventilatory support he received in the Auckland Hospital intensive care unit, Mr. L could survive indefinitely; without it, his breathing and heartbeat would cease and he would die, quickly and painlessly according to his physicians. They concluded that his ventilator should be withdrawn, and Mrs. L agreed. The physicians were unwilling to act, however, for fear that turning off Mr. L's ventilator would expose them to liability under the Crimes Act 1961. Section 151 imposes a duty on those, such as physicians, who have dependent persons in their charge, to provide them with "the necessaries of life." Breach of this duty would make any resulting death a culpable killing under other sections of the act. Unable to obtain assurances from the attorney general that they would not be prosecuted, the physicians sought a declaration from the New Zealand High Court that what they wished to do was not unlawful. Judge Thomas's decision in their favor is of interest for several reasons--in addition to the novelty of lifting our eyes beyond America's shores to see how other nations are grappling with problems that have troubled our courts for nearly twenty years. Crimes and Doctors The opinion's first interesting feature is its reminder that the criminal law provides "a poor way to design an ethical and moral code for doctors," as a California appellate court observed decade ago.[3] Just as the niceties of the criminal law provided a backdrop for the early U.S. treatment termination cases seeking injunctions and declaratory judgments (such as Quinlan), so too physicians' anxieties over criminal liability led the Auckland court to analyze the problem in terms of issues such as causation, duty, and lawful excuse. It has sometimes been argued that forgoing life-sustaining treatment merely allows an underlying lethal condition to bring about death; further, a distinction is sometimes drawn between doing something to cause a result and failing to take steps to prevent it. Indeed, both of these avenues of analysis were employed by the House of Lords earlier this year in the landmark case Airedale N. …