Eight out of 10 people die in hospitals, and the excruciating decisions about how to take care of them are usually made by someone else.
Harvard Law School professor Martha L. Minow, delivering the 25th annual William H. Leary Lecture at the University of Utah College of Law, said Thursday that a recent Supreme Court decision has complicated these situations because families will have to make decisions that they will not be able to rescind later.Minow, an expert on the role of the family in choosing medical treatment for other family members, recently worked with a Boston public television documentary crew filming doctors and families faced with literal life-and-death decisions.
She thought it would be a familiar situation - after all, she has both written and read books on the subject of informed consent.
"Nothing I have written and nothing I have read resembled what I watched," Minow said. "What goes on is a very, very complicated dance in which the doctors (ask) questions that can't be answered by the family, and the family looks to doctors for answers they cannot give."
At the root of the problem, she said, are ethical questions the courts have not answered with consistent reasoning.
The Supreme Court has been inconsistent in a pair of recent rulings on family involvement in medical decisions, she said, suggesting that the inconsistencies are inevitable when jurists reason abstractly instead of considering real-life situations.
The two cases - Cruzan vs. Director of the Missouri Department of Health and Ohio vs. the Akron Center for Reproductive Health - both dealt with the roles families play in medical decisions.
In the first case, the parents of 32-year-old Nancy Cruzan argued unsuccessfully that feeding tubes should be removed from their daughter, who since a car crash in 1983 has been in a persistent vegetative state that doctors say will not end.
The justices, in upholding the Missouri decision to keep Cruzan alive, took great pains to note that it would be in her best interest to be taken off life support, Minow said. But because Cruzan hadn't left binding instructions when she was still competent about what to do in the event of a situation like the one she is now in, the court ruled that her parents could not speak for her, nor could they order the termination of medical treatment.
In the second case, the court upheld the state of Ohio's requirement that the parents of minors be notified if their children seek abortions.
In the first case, Minow said, the court denied parental participation in medical treatment; in the second, the court required it. The justices in one case wrote of the possibility of bad parents making bad decisions; in the other, asserted that most families are caring and would support a pregnant child.
The decisions were wrong, Minow said, as well as inconsistent, and could have devastating effects on doctors and families in the future, because once the medical profession is called in, so is the legal profession.
For example, once the consent has been given to insert a feeding tube into a patient, the family may not decide to have it removed. The ramifications of decisions made early in a medical crisis are so far-reaching that it would not be unreasonable for a family to make the decision not to call an ambulance at all.
With both cases, the underlying assumptions about the competence of parents and children aren't always borne out by fact. Treating life-and-death situations requires looking at facts, Minow said.
"Inconsistency appears if we couch the situations abstractly," she said.
Minow, who at Harvard teaches civil procedure, family law and jurisprudence, has written extensively about discrimination law affecting women, children, disabled people and members of ethnic, racial or religious minorities.
She is also on the faculty of the Brandeis University "Doing Justice" program, which introduces judges to great works of literature as material for reflecting on the tasks of judging.
Prior to joining Harvard's law faculty, she was a law clerk for Supreme Court Justice Thurgood Marshall and U.S. Court of Appeals, Washington, D.C., Judge David Balezon.