Cruzan after Dobbs: What Remains of the Constitutional Right to Refuse Treatment?

In 2022, the U.S. Supreme Court removed constitutional protection from the individual's right to end a pregnancy. In Dobbs v. Jackson Women's Health Organization, the Court invalidated previous rulings protecting that right as part of the individual liberty and privacy interests embedded in the U.S. Constitution. Now, many observers are speculating about the fate of other rights founded on those interests. The Dobbs ruling conflicts with the Court's 1990 Cruzan decision restricting the government's power to interfere with personal medical choices. The language and reasoning in Dobbs and Cruzan offer guidance on how the Court might address future cases involving the right to refuse life-sustaining treatment. The decisions also point to policy strategies for preserving that right.

Life-Sustaining Treatment States in Korean Cancer Patients after Enforcement of Act on Decisions on Life-Sustaining Treatment for Patients at the End of Life.

PURPOSE: In Korea, the "Act on Hospice and Palliative Care and Decisions on Life-sustaining Treatment for Patients at the End of Life" was enacted on February 4, 2018. This study was conducted to analyze the current state of life-sustaining treatment decisions based on National Health Insurance Service (NHIS) data after the law came into force. MATERIALS AND METHODS: The data of 173,028 cancer deaths were extracted from NHIS qualification data between November 2015 and January 2019. RESULTS: The number of cancer deaths complied with the law process was 14,438 of 54,635 cases (26.4%). The rate of patient self-determination was 49.0%. The patients complying with the law process have used a hospice center more frequently (28% vs. 14%). However, the rate of intensive care unit (ICU) admission was similar between the patients who complied with and without the law process (ICU admission, 23% vs. 21%). There was no difference in the proportion of patients who had undergone mechanical ventilation and hemodialysis in the comparative analysis before and after the enforcement of the law and the analysis according to the compliance with the law. The patients who complied with the law process received cardiopulmonary resuscitation at a lower rate. CONCLUSION: The law has positive effects on the rate of life-sustaining treatment decision by patient's determination. However, there was no sufficient effect on the withholding or withdrawing of life-sustaining treatment, which could protect the patient from unnecessary or harmful interventions.

The Situation of Life-Sustaining Treatment One Year after Enforcement of the Act on Decisions on Life-Sustaining Treatment for Patients at the End-of-Life in Korea: Data of National Agency for Management of Life-Sustaining Treatment.

PURPOSE: The "Act on Hospice and Palliative Care and Decisions on Life-Sustaining Treatment for Patients at the End-of-Life" was enacted on February 3, 2016 and went into effect on February 4, 2018 in Korea. This study reviewed the first year of determination to life-sustaining treatment (LST) through data analysis of the National Agency for Management of Life-Sustaining Treatment. MATERIALS AND METHODS: The National Agency for Management of LST provided data between February 4, 2018 and January 31, 2019 anonymously from 33,549 patients. According to the forms patients were defined as either elf-determinants or family-determinants. RESULTS: The median age of the patient was 73 and the majority was male (59.9%). Cancer patients were 59% and self-determinants were 32.1%. Cancer patients had a higher rate of self-determinants than non-cancer (47.3% vs. 10.1%). Plan for hospice service was high in cancer patients among self-determinants (81.0% vs. 37.5%, p < 0.001). In comparison to family-determinants, self-determinants were younger (median age, 67 years vs. 75 years; p < 0.001) and had more cancer diagnosis (87.1% vs. 45.9%, p < 0.001). Decision of withholding or withdrawing of LSTs in cancer patients was higher than non-cancer patients in four items. CONCLUSION: Cancer patients had a higher rate in self-determination and withholding or withdrawing of LSTs than non-cancer patients. Continued revision of the law and education of the public will be able to promote withdrawing or withholding the futile LSTs in patients at end-of-life. Further study following the revision of the law should be evaluated to change of end-of-life care.

Do advance directive attitudes and perceived susceptibility and end-of-life life-sustaining treatment preferences between patients with heart failure and cancer differ?

There is limited evidence on the relationships of preference for end-of-life life-sustaining treatments [LSTs] and diagnostic contexts like heart failure [HF] or cancer, and patient attitudes toward and perceived susceptibility to use advance directives [ADs]. Thus, this study aimed to compare attitudes and perceived susceptibility between HF patients and community-dwelling patients with cancer, and examine the associations of these variables with their preference for each LST (cardiopulmonary resuscitation [CPR], ventilation support, hemodialysis, and hospice care). Secondary data were obtained from 36 outpatients with HF (mean age, 65.44 years; male, 69.4%) and 107 cancer patients (mean age, 67.39 years; male, 32.7%). More patients with HF preferred CPR than cancer patients (41.7% and 15.9%, χ2 = 8.88, P = 0.003). Attitudes and perceived susceptibility were similar between the two diagnostic cohorts. HF patients and those with more positive attitudes had greater odds of preferring CPR (odds ratio [OR] = 3.02, confidence interval [CI] = 1.19, 7.70) and hospice care (OR = 1.14, CI = 1.06, 1.23), respectively. HF diagnosis and AD attitudes increased the preference for CPR and hospice care, respectively. This suggests that it is important to gain positive attitudes toward ADs and consider diagnostic context to facilitate informed decision-making for LSTs.

Conceptions of dignity in the Charlie Gard, Alfie Evans and Isaiah Haastrup cases.

In 2017 and 2018, the English courts were asked to decide whether continued life-sustaining treatment was in the best interests of three infants: Charlie Gard, Alfie Evans and Isaiah Haastrup. Each infant had sustained catastrophic, irrecoverable brain damage. Dignity played an important role in the best interests assessments reached by the Family division of the High Court in each case. Multiple conceptions of dignity circulate, with potentially conflicting implications for infants such as Charlie, Alfie and Isaiah. The judgements do not explicate the conceptions of dignity upon which they rely. This article reconstructs the conceptions of dignity invoked in these judgements, finding that a broadly Kantian, agential conception dominates, under which human dignity requires the prospect of agency. This conception is situated within the broader body of thought on dignity, and the potentially adverse implications of applying the reconstructed conception in best interests assessments for infants with severely restricted consciousness are discussed.

The Briggsian Heresy? Should Previously Expressed Wishes Determine Best Interests in Decisions Relating to Withdrawal of Clinically-Assisted Nutrition and Hydration?

This paper examines the Court of Protection decision in Briggs v Briggs. It considers whether the approach of the Court, which gave effective decisive weight to a patient's previously expressed wishes about whether he should be kept alive in a minimally conscious state, is a proper application of the 'best interests' test under the Mental Capacity Act 2005. It assesses whether the Briggs approach is effectively applying a 'substituted judgement' test and considers the difficulties in ascertaining what a person's actual wishes are.

[Withdrawal of life support in the permanent vegetative state, and a dignified death]. / Suspensión de soporte vital en el estado vegetativo permanente y muerte digna.

Patient relatives often request withdrawal of life support, especially artificial nutrition and hydration, in cases of permanent vegetative or minimally conscious state, and resort to court in case of disagreement. Two recent cases of withdrawal authorized by the courts concerned, one from abroad and one from Argentina, have been controversial. Although it may appear inhuman to stop feeding and hydrating such patients, to continue it only prolongs a state of irreversible biological subsistence. Families tend to increasingly accept withdrawal if the patient status remains unchanged. However, concern persists regarding the suffering that patients may undergo from onset of withdrawal till death, even though such suffering is little conceivable in the absence of cortical function and conscience content. While doctors and the layman consider ethical to withdraw life support, a nonnegligible proportion of doctors consider that vegetative state patients, even more minimally conscious state patients, do experience hunger, thirst and pain. In some countries, like the United Kingdom, strict withdrawal criteria were proposed, together with pharmacological treatment schemes for the distress arising during the withdrawal period, even though its benefit is controversial. In Argentina, two scientific societies have publicly advocated withdrawal, but not issued formal guidelines. In any case, both "dignified death" Law 26.742 and the Civil Code consent withdrawal of life support, if accompanied by appropriate relief of clinical symptoms indicating suffering.

Es frecuente que familiares directos soliciten la suspensión de soporte vital, en particular de la hidratación y nutrición asistidas, en pacientes con estado vegetativo o de mínima conciencia permanente, y que recurran a la justicia en caso de desacuerdo. Dos casos recientes de suspensión, uno del exterior y otro argentino, autorizados por los tribunales respectivos, han sido motivo de controversia. Si bien puede parecer inhumano dejar de alimentar e hidratar, continuar haciéndolo solo prolonga un estado de supervivencia biológica irreversible. Las familias tienden a aceptar la suspensión si el paciente se mantiene sin cambios. Sin embargo, persiste preocupación por el posible sufrimiento desde la suspensión hasta la muerte, aunque el mismo es poco concebible en ausencia de función cortical y de conciencia. Si bien médicos y profanos consideran ético suspender el soporte vital, una cierta proporción de médicos considera que en el estado vegetativo, o más aún, en mínima conciencia, efectivamente se experimenta hambre, sed y dolor. En países como el Reino Unido, se han propuesto criterios de suspensión de soporte vital, y esquemas de tratamiento para el malestar durante el período de suspensión, aunque su beneficio efectivo es controvertido. La Argentina cuenta con recomendaciones de dos sociedades científicas, pero no con criterios reglamentados. Pero tanto la Ley 26.742 de "muerte digna" como el Código Civil consienten la suspensión del soporte vital en el estado vegetativo o de mínima conciencia, si se acompaña de medidas de alivio de los síntomas clínicos que puedan significar sufrimiento.

Suspensión de soporte vital en el estado vegetativo permanente y muerte digna / Withdrawal of life support in the permanent vegetative state, and a dignified death

Es frecuente que familiares directos soliciten la suspensión de soporte vital, en particular de la hidratación y nutrición asistidas, en pacientes con estado vegetativo o de mínima conciencia permanente, y que recurran a la justicia en caso de desacuerdo. Dos casos recientes de suspensión, uno del exterior y otro argentino, autorizados por los tribunales respectivos, han sido motivo de controversia. Si bien puede parecer inhumano dejar de alimentar e hidratar, continuar haciéndolo solo prolonga un estado de supervivencia biológica irreversible. Las familias tienden a aceptar la suspensión si el paciente se mantiene sin cambios. Sin embargo, persiste preocupación por el posible sufrimiento desde la suspensión hasta la muerte, aunque el mismo es poco concebible en ausencia de función cortical y de conciencia. Si bien médicos y profanos consideran ético suspender el soporte vital, una cierta proporción de médicos considera que en el estado vegetativo, o más aún, en mínima conciencia, efectivamente se experimenta hambre, sed y dolor. En países como el Reino Unido, se han propuesto criterios de suspensión de soporte vital, y esquemas de tratamiento para el malestar durante el período de suspensión, aunque su beneficio efectivo es controvertido. La Argentina cuenta con recomendaciones de dos sociedades científicas, pero no con criterios reglamentados. Pero tanto la Ley 26.742 de "muerte digna" como el Código Civil consienten la suspensión del soporte vital en el estado vegetativo o de mínima conciencia, si se acompaña de medidas de alivio de los síntomas clínicos que puedan significar sufrimiento.

Patient relatives often request withdrawal of life support, especially artificial nutrition and hydration, in cases of permanent vegetative or minimally conscious state, and resort to court in case of disagreement. Two recent cases of withdrawal authorized by the courts concerned, one from abroad and one from Argentina, have been controversial. Although it may appear inhuman to stop feeding and hydrating such patients, to continue it only prolongs a state of irreversible biological subsistence. Families tend to increasingly accept withdrawal if the patient status remains unchanged. However, concern persists regarding the suffering that patients may undergo from onset of withdrawal till death, even though such suffering is little conceivable in the absence of cortical function and conscience content. While doctors and the layman consider ethical to withdraw life support, a nonnegligible proportion of doctors consider that vegetative state patients, even more minimally conscious state patients, do experience hunger, thirst and pain. In some countries, like the United Kingdom, strict withdrawal criteria were proposed, together with pharmacological treatment schemes for the distress arising during the withdrawal period, even though its benefit is controversial. In Argentina, two scientific societies have publicly advocated withdrawal, but not issued formal guidelines. In any case, both "dignified death" Law 26.742 and the Civil Code consent withdrawal of life support, if accompanied by appropriate relief of clinical symptoms indicating suffering.

Improving Advanced Care Planning through Physician Orders for Life-Sustaining Treatment (POLST) Expansion across the United States: Lessons Learned from State-Based Developments.

BACKGROUND: The Physician Orders for Life-Sustaining Treatment (POLST) Paradigm is an effective advance care planning tool. However, barriers to implementation persist. In the United States, POLST program development occurs at the state-level. Substantial differences between states has left POLST implementation largely unstandardized. No peer-reviewed studies to date have evaluated state-based POLST program development over time. OBJECTIVE: To assess and learn from the successes and barriers in state-based POLST program development over time to improve the reach of POLST or similar programs across the United States. DESIGN: An exploratory, prospective cohort study that utilized semistructured telephone interviews was conducted over a 3-year period (2012-2015). Stakeholder representatives from state POLST coalitions (n = 14) were repeatedly queried on time-relevant successes, barriers, and innovations during POLST program development with levels of legislative and medical barriers rated 1 to 10. Interviews were transcribed and analyzed using techniques grounded in qualitative theory. RESULTS: All coalition representatives reported continuous POLST expansion with improved outreach and community partnerships. Significant barriers to expansion included difficulty in securing funding for training and infrastructure, lack of statewide metric systems to adequately assess expansion, lack of provider support, and legislative concerns. Medical barriers (mean [standard deviation]: 5.0 [0.2]) were rated higher than legislative (3.0 [0.6]; P < .001). CONCLUSION: POLST programs continue to grow, but not without barriers. Based on the experiences of developing coalitions, we were able to identify strategies to expand POLST programs and overcome barriers. Ultimately the "lessons learned" in this study can serve as a guide to improve the reach of POLST or similar programs.

Making Decisions for Children-Accommodating Parental Choice in Best Interests Determinations: Barts Health NHS Trust v Raqeeb [2019] EWHC 2530 (Fam); Raqeeb and Barts Health NHS Trust [2019] EWHC 2531 (Admin).

Four-year-old Tafida Raqeeb suffered a sudden and catastrophic brain injury resulting from a rare condition. UK doctors would not agree to a transfer of Tafida to a hospital in Italy in circumstances that they considered to be contrary to her best interests. Her parents applied for judicial review of the hospital decision and the hospital Trust applied for a determination of Tafida's best interests. The cases were heard together. The High Court ruled that Tafida could be taken to Italy for treatment. Applying the best interests test, Mr Justice MacDonald found that Tafida was not in pain and ongoing treatment would not be a burden to her. Further treatment would comply with the religious beliefs of her parents. The case is specific to its facts, but MacDonald J's interpretation of the best interests test is likely to have implications. In particular, we explore the separation of medical and overall best interests; the recognition of the relevance of international laws and frameworks to best interests determinations; and reliance not on what Tafida could understand and express but on what she might in future have come to believe had she followed her parents' religious beliefs.

Parens Patriae and Parental Rights: When Should the State Override Parental Medical Decisions?

Alfie Evans was a terminally ill British child whose parents, clinging to hope, were desperately trying to save his life. Hospital authorities disagreed and petitioned the court to enjoin the parents from removing him and taking him elsewhere for treatment. The court stepped in and compelled the hospital to discontinue life support and claimed that further treatment was not in the child's best interest. This note discusses the heartbreaking stories of Alfie and two other children whose parents' medical decisions on their behalf were overridden by the court. It argues that courts should never decide that death is in a child's best interest and compel parents to withdraw life support from their children. Such a decision is outside the scope of the judiciary. Furthermore, it argues that even in those instances when the court may or must intervene, a new framework is necessary because the current framework used by the court to determine the best interest of the child ignores fundamental realities of child psychology. Too often, as a result of the court's mistaken framework, the court illegitimately trespasses into the parental domain. By adopting a new framework, the court will intervene only when actual abuse or neglect is suspected. In all other cases, judicial restraint will be practiced and the court will show greater deference to the parents' wishes.

Looking Back at Withdrawal of Life-Support Law and Policy to See What Lies Ahead for Medical Aid-in-Dying.

Current efforts to legalize medical aid-in-dying in this country follow a half century of remarkable legal developments regarding when, how, and on whose terms to intervene to prevent death and extend life in critically and terminally ill patients. The starting point-which I call the first stage along the path-was the creation in the two decades following World War II of powerful means of keeping very ill, and typically unconscious, patients alive. The second stage began in the late 1960s as physicians (and then others in society) began to grapple with the consequences of maintaining such patients on life-support indefinitely. Over five decades, judicial decisions, followed by implementing statutes and regulations, transformed legal rights and medical practices. Are the current developments-which center on legalizing medical aid-in-dying-a third stage along the same path, or do the striking differences between the issues raised about life-sustaining treatment and euthanasia suggest that they are separate? What lessons might those proceeding along the aid-in-dying path take from the development of the other path, and if the two paths are still distinct today, might they merge in the future?

Withdrawing life-sustaining treatment: a stock-take of the legal and ethical position.

This article, prompted by an extended essay published in the Journal of Medical Ethics by Charles Foster, and the current controversy surrounding the case of Vincent Lambert, analyses the legal and ethical arguments in relation to the withdrawal of life-sustaining treatment from patients with prolonged disorders of consciousness. The article analyses the legal framework through the prism of domestic law, case-law of the European Court of Human Rights and the Convention on the Rights of Persons with Disabilities, and examines the challenge to the ethical consensus made by Foster. It concludes that the right approach remains a version of the approach that has prevailed for the last 25 years since the decision in Airedale NHS Trust v Bland[1993] AC 789, refined to reflect that that there is now, and rightly, a much more limited place for judgments made about the 'burden' of treatment or the quality of life enjoyed by the person made on the basis of assumptions about that person as a category as opposed to investigation of that person as an individual human being.

Waiting for a miracle or best medical practice? End-of-life medical ethical dilemmas in Bahrain.

BACKGROUND AND OBJECTIVES: In Bahrain, maintaining life support at all costs is a cultural value considered to be embedded in the Islamic religion. We explore end-of-life decision making for brain dead patients in an Arab country where medical cultures are dominated by Western ideas and the lay culture is Eastern. METHODS: In-depth interviews were conducted from February to April 2018 with 12 Western-educated Bahraini doctors whose medical practice often included end-of-life decision making. Discussions were about who should make withdrawal of life support decisions, how decisions are made and the context for decision making. To develop results, we used the inductive method of thematic analysis. RESULTS: Informants considered it difficult to engage non-medical people in end-of-life decisions because of people's reluctance to talk about death and no legal clarity about medical responsibilities. There was disagreement about doctors' roles with some saying that end-of-life decisions were purely medical or purely religious but most maintaining that such decisions need to be collectively owned by medicine, patients, families, religious advisors and society. Informants practised in a legal vacuum that made their ethics interpretations and clinical decision making idiosyncratic regarding end-of-life care for brain dead patients. Participants referred to contrasts between their current practice and previous work in other countries, recognising the influences of religious and cultural dimensions on their practice in Bahrain. CONCLUSIONS: End-of-life decisions challenge Western-trained doctors in Bahrain as they grapple with aligning respect for local culture with their training in the ethical practice of Western medicine.

The Search for Consciousness.

In recent years, rapid technological developments in the field of neuroimaging have provided new methods for assessing residual cognition, detecting consciousness, and even communicating with patients who clinically appear to be in a vegetative state. Here, I highlight some of the major implications of these developments, discuss their scientific, clinical, legal, and ethical relevance, and make my own recommendations for future directions in this field.

Supporting families involved in court cases about life-sustaining treatment: Working as academics, advocates and activists.

This article explores the links between our roles as academics, advocates, and activists, focusing on our research on treatment decisions for patients in vegetative and minimally conscious states. We describe how our work evolved from personal experience through traditional social science research to public engagement activities and then to advocacy and activism. We reflect on the challenges we faced in navigating the relationship between our research, advocacy, and activism, and the implications of these challenges for our research ethics and methodology-giving practical examples of how we worked with research participants, wrote up case studies and developed interventions into legal debates. We also address the implications of the impact agenda-imposed by the British Research Excellence Framework- for our actions as scholar-activists. Finally, we ask how practicing at the borders of academia, advocacy, and activism can inform research-helping to contextualize, sensitize, and engage theory with practice, leading to a more robust analysis of data and its implications, and helping to ensure a dialogue between research, theory, lived experience, front-line practice, law, and public policy.

"Hospitals and Clinicians Need Not Apply:" Withdrawing Clinically Assisted Nutrition and Hydration in Undisputed Cases.

In 2018 the United Kingdom Supreme Court decided in An NHS Trust v Y [2018] 3 WLR 751; [2018] UKSC 46 that the time had come to move on from the "good practice" requirement in Airedale NHS Trust v Bland [1993] AC 789 for hospitals and doctors to obtain court approval before life-prolonging treatment can be withheld or withdrawn from a patient in a permanent vegetative state (PVS). It held that it is no longer necessary to involve the court in every case before life-sustaining clinically assisted nutrition and hydration (CANH) can be withdrawn. Provided the provisions of the Mental Capacity Act 2005 (England and Wales) and relevant professional guidance are followed, and there is no difference of medical opinion or lack of agreement from interested parties, in particular family members, with the proposed course of action, legal permission is not required. The ruling applies to PVS patients, as well as, more controversially, those in a minimally conscious state (MCS), the newer diagnosis identified post-Bland. This commentary summarises the Supreme Court's decision, and considers some implications for England and Wales, as well as for Australia and New Zealand, where there is no recommended practice of, much less any legal requirement for hospitals to seek court approval, even in disputed cases.