The Saikewicz Precedent: What's Good for an Incompetent Patient?

O n November 28, 1977, Supreme Judicial Court of Massachusetts handed down its opinion1 that Joseph Saikewicz not be treated-nearly one and a half years after its ruling to that effect and more than fourteen months after his death on September 4, 1976, of bronchial pneumonia. George J. Annas2 argues that opinion written at leisure makes for greater objectivity in court's reasoning, in comparison with similar life-or-death opinions written while outcome is still in doubt. A contrary argument seems equally plausible, though I do not make it here. Joseph Saikewicz was a sixty-seven-year-old incompetent, profoundly mentally retarded, said to have an IQ of ten and a mental age of about three years. On April 19, 1967, he was diagnosed to have acute myeloblastic monocytic leukemia. This is not place to review reasons put forward for treating or for not treating this patient.3 We are concerned rather to ferret out reasons Supreme Judicial Court judged it proper to substitute its opinion for Saikewicz's unknown and unknowable opinion concerning accepting or refusing treatment. Speaking for a unanimous court, Justice Liacos held that probate court had full and sole authority to make such a determination; and, for an undisclosed numerical majority, held that Judge Jekanowiski had made a proper decision in this particular case. The court (1) rejected Quinlan's privatizing similar decisions; (2) jettisoned Judge Jekanowiski's reference to the quality of life possible to him even if treatment does bring about remission among his reasons against treatment (To extent that this formulation equates value of life with any measure of quality of life, we firmly reject it); and (3) turned thumbs down on any need to ask whether many or most competent patients choose treatment (Nor do statistical factors indicating that a majority of competent persons similarly situated choose treatment resolve issue). All three of these points may help to prevent New Jersey Supreme Court's decision in Quinlan case4 from racing through American law. At same time these points, taken together, locate Joseph Saikewicz's exercise of his privacy right for or against medical intrusions in impenetrable unknown, beyond possible discovery by any human court. But then, what were grounds for Massachusetts court's substituted judgment doctrine? Where Judge Muir in lower New Jersey