At Law: Where Is the Sure Interpreter?

The continued efforts of courts and legislatures to answer Sandburg's question about the sure interpreter - especially for those incompetent patients who have never been capable of expressing preferences or appointing a health care agent - have borne notable fruit in recent months. Like the Indiana court in the Lawrance case,[1] the New York State Task Force on Life and the Law, in a March 1992 legislative proposal, favored families as surrogate decisionmakers.[2] The following month, the Wisconsin Supreme Court focused on decisionmaking by court-appointed guardians on behalf of patients in the persistent vegetative state (PVS).[3] In addition, the Wisconsin court addressed another major issue - whether PVS patients are handicapped for the purpose of antidiscrimination laws - with which the Indiana court had also wrestled in Lawrance. Families and Substituted Judgment To complement existing law in New York that permits people to name health care agents, the task force proposed legislation comparable to that enacted in the past several years in about twenty other states, addressing the common situation in which a patient has failed to name an agent before becoming incompetent. These so-called acts formalize the age-old custom of turning to the next of kin for guidance about treatment when a patient is unable to make decisions personally. The priority list recommended in New York is similar to that in most states - it begins with court-appointed guardians, moves on to spouse, adult children, parents, and adult siblings, and concludes with close friends and extended family. The New York proposal is unusual, however, in ranking second any person who the others on the list have mutually agreed should act as the surrogate. By permitting flexibility in the hierarchy, the act recognizes that one person may live closer to the patient, may have professional medical training, or may be the one who generally handles family matters. In sum, the others on the list might want that person to be the health care surrogate. Families prone to dispute may also find that if they can mutually agree on a particular person as the surrogate, better and more acceptable decisions will be made than if they all attempted to arrive at each decision together. At the heart of the task force's recommendation is the view that families are better surrogates for patients than are courts or other entities. This conclusion is in line with the recent report of a council sponsored by the National Center for State Courts, which took the view that decisions about life-sustaining treatment ought not be routinely reviewed by the courts.[4] The increasingly formal prominence given to the role of families in making treatment decisions for incompetent patients is based on two separate assumptions. First, when a patient's wishes are knowable (albeit not reduced to specific instructions that precisely cover the instant circumstances), it is thought that families are most likely to understand those wishes and the patient's general values and preferences, and that they are also best able to apply these wishes, values, and preferences to the medical circumstances. Of course, the intimate connections and history that typically bind members of a family together can be a weakness as well. Family members may have significant emotional and financial conflicts, and they may be prone to confuse their own values and preferences with those of the patient. These concerns have at least some legitimacy; as several studies have shown, relatives (like treating physicians) are not very good at predicting what treatment options a patient would actually prefer. Nonetheless, the alternative - namely, greater governmental involvement in treatment decisionmaking, ultimately including judicial review of all decisions regarding treatment of incompetent patients - would be worse. The courts do not have the resources for such proceedings, nor is there any reason to think that they would come to better decisions in the vast majority of cases. …