The burden of decision.

The good reasons for judicial intervention in some bioethics cases do not mean that physicians, administrators, and families should routinely seek to shift the burden of decision to the courts. Over the past three decades the courts have been a major forum not merely for resolving bioethical disputes but for acquainting the public with the hard choices that modern medicine so often poses. The courtroom has become such a familiar setting in this context that we seldom ask: what are we doing here? And yet a hard look at that issue is essential if we are going to preserve and enhance the very values articulated in such landmark opinions as Cobbs v. Grant, (1) In re Quinlan, (2) and Barber v. Superior Court. (3) Ironically, the groundwork laid in those cases now requires that judges be more reluctant to become involved in the disputes about medical interventions brought before them, lest in the process they subtly erode the high view of human dignity and liberty established in these cases on informed consent, patient autonomy, and the limits of medicine. Of course, no one can deny the importance of the landmarks themselves. The full force of judicial authority and eloquence was needed to shake physicians from their predisposition to hold onto knowledge, conceal uncertainty, and reserve decision-making power to themselves. In opinion after opinion,judges made clear that before treating a patient, a physician must not merely obtain consent but must disclose the information the patient needs to make a decision about whether and how to proceed. Some commentators have been skeptical that the judges ever meant what they said, so many have been the impediments they placed in the way of patients actually enforcing their rights by collecting damages for violations of their right to choose. (4) Yet the medical profession-along with patients and their advocacy groups-has apparently believed the ringing phrases in the judicial opinions, as have the rising corps of bioethicists who take the legal doctrine of informed consent as bedrock. Indeed, only now, after twenty years of debate, are bioethicists seriously struggling with integrating concepts like community into an analysis that has focused almost entirely on autonomy and self determination. Thus, informed consent has had an effect on physicians' attitudes, probably on their behavior, and certainly on how prominent physicians and ethicists describe the ideal physician-patient relationship that is far out of proportion to the doctrine's actual significance as a basis for recovery. It has been an influence for good of which the law can be proud, even if judges-like the rest of us-need some time getting used to the full implications of what they have written. As manifested by the leading cases on informed consent, good reasons certainly exist for courts to become involved in some bioethics cases. When circumstances change in important ways--as in medicine over the past several decades-and existing doctrines seem inadequate or of unclear import, the courts perform a vital law-making function through their opinions in landmark cases. What I find to be troubling, however, is both our increasing proclivity to turn to the courts routinely, especially in treatment-termination cases, and judges' greater willingness "to yield to spasmodic sentiment, to vague and unregulated benevolence," in the trenchant phrase of Judge Cardozo. (5) In this article, I will initially take the typical bioethics case to involve a disagreement about the recommended medical intervention (though later I will attempt to generalize some conclusions to a more diverse group of cases). The clear implication of the informed consent cases is that when disagreements occur, a patient's refusal of recommended treatment will be respected. Formally, courts have supported the notion of informed refusal. Yet the courts have been less robust in support of patient choice when the issue is not liability for inadequate disclosure but disagreement over the refusal itself. …