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The Values History: An Innovation in Surrogate Medical Decision-Making

Published online by Cambridge University Press:  29 April 2021

Pam Lambert ,
Joan McIver Gibson  and
Paul Nathanson
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Extract

In the United States we prize our freedom as individuals to make our own decisions, however unwise they might seem to others. This devotion to the principle of autonomy (from the Greek “autos” meaning self and “nomos” meaning rule) is obvious in our legal system as well as in a variety of social rules and customs that govern our daily lives.

Difficulties arise, however, when we lose, either temporarily or permanently, the capacity to make our own decisions. Ideally we would have planned ahead for possible incapacity in order to retain control over the future course of our lives. Unfortunately the ideal situation rarely exists. Most of us avoid anticipating the possibility of our own incapacity, and by implication, loss of control. Until recently attention has not been paid to developing and supplying accessible and understandable information about advance directives that could assist us in such planning. And most of us still prefer (or at least resort to) informal, often uninformed, family decision-making arrangements.

Type
Article
Information
Law, Medicine and Healthcare , Volume 18 , Issue 3 , Fall 1990 , pp. 202 - 212
Copyright
Copyright © 1990 American Society of Law, Medicine & Ethics

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References

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The right of competent adults to accept or refuse medical treatment, including life-sustaining treatment, has become a settled principle in the common law since the seminal California cases of Bartling v. Superior Court, 163 Cal.App.3d 186, 209 Cal.Rptr. 220 (1984), and Bouvia v. Superior Court, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986). See, e.g., the discussion in Matter of Conroy, 486 A.2d 1209 (N.J. 1985) at 1221–1226. Although courts generally qualify this right as subject to certain enumerated state interests (preservation of life, prevention of suicide, integrity of the medical profession, and protection of third parties), no reported case has held any of these interests sufficient to outweigh the right of a competent person to terminate medical treatment. See Pollock, S., “Life and Death Decisions: Who Makes Them and By What Standards?” Rutgers Law Review 41 (1989): 505–540.Google Scholar
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The National Values History Project, an 18-month project at the Institute of Public Law from 1988–90, was funded by a grant from the Ittleson Foundation.Google Scholar
The Medical Treatment Guardian Program, a 12-month project at the Institute of Public Law from 1987–88, was funded by a grant from the Retirement Research Foundation as part of its Personal Autonomy in Long Term Care Initiative.Google Scholar
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