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«I. INTRODUCTION: THE IMPORTANCE OF FUTILITY Despite twenty years of development in patient rights, end-of-life decisions still trouble law and ...»

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1248 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 suicide since the underlying medical condition caused death.117 Extending this reasoning to futility, this might indicate that disease, not the medical decision, causes death. In contrast to the facts in Bartling, but adopting the same reasoning, the medical condition, rather than a doctor’s decision not to provide life-sustaining but medically ineffective treatment, would be the cause of death. This reversal of logic would probably not be sustained if the patient and physician roles were reversed as they are in cases of futile treatment. Accepting the given jurisprudence, a physician would probably not be allowed to withdraw unilaterally. Other court decisions have clearly constrained the physician’s abilities to cease treatment. Applying proportionality reasoning, courts have said a patient could cease treatment, but the appropriate response for the physician was to attempt to withdraw from treatment.118 While making these strong pronouncements, the court has stated that the “decision to forego treatment for a persistently vegetative patient is primarily ethical and not legal.”119 This indicates the court’s reluctance to address these questions. Such a position emphasizes the moral ambiguity of end-of-life decisions, and a belief that, more so than a trial court, the patient and physician have the factual insight to make appropriate decisions. This suggests wide latitude in consideration, but a latitude that focuses on the individual moral realities in a given physician-patient relationship.

While the California courts insinuate that some treatments may be technically futile, they generally defer to a patient-initiated balancing test to determine the appropriate goal. The patient is at the heart of the decision, and, to some degree, the physician is instrumental to that decision. The courts do not absolutely chain the physician to the patient’s end-of-life decisions, but provide, at best, only a common law option of opting out of the care-providing role or relationship. The focus on the patient indicates that non-technical decisions are at the heart of end-of-life decisions.

Technical considerations and definitions of propriety are merely instrumental. While a physician might provide the range of options, the moral process at the end-of-life requires participation of patient and physician to determine appropriate care.

–  –  –


Most of the UHCDA addresses the personal power of a patient to establish his or her own wishes in medical decisionmaking. 120 This reiterates previous law or refines the power of the individual to govern decisions without directly addressing the physician’s role. When a patient’s wishes are unknown, no surrogate is in place, and no conservatorship is defined, however, the statute explicitly allows courts to make determinations of best interest.121 It allows for withholding or withdrawing treatment, but requires consideration of two factors: (1) the extent to which the decision is in the patient’s best interests, including personal value; and (2) the fact that the patient is clearly unable to consent independently. 122 This judicial position accepts a large degree of indeterminacy. For example, the first factor, which requires the pursuit of best interest, explicitly includes personal values. Personal values certainly vary, but are nonetheless the central consideration. No concrete right or wrong answer is prescribed. There is neither a proscription against withdrawal nor a requirement to withdraw. Instead, the court again adopts a very fact-based balancing test. Faced with ultimate, end-of-life decisions independent of patient input, the court uses patient autonomy to ensure that the patient’s interests are considered and met. To define those interests, the law officially adopts a utilitarian balancing test as the outer edge of the boundary of medical-legal reasoning as it applies to end-of-life decisions.

This definition of the court role ultimately frames the decision of health care providers. Physicians frequently cite fear of suit as a rationale for the seemingly contradictory positions of overzealous treatment and reluctance to withdraw unnecessary treatment.123 Despite statements that such judicial intervention is unlikely, cases that challenge the ethical questions at the margin of established practice often fall to the courts.

When medical torts, malpractice, and even murder charges become published cases, there may be a reasonable degree of concern. Given these constraints, working within the legal framework is prudent. Despite the court’s indication that end-of-life decisions are ethical, the public discourse—as expressed in judicial and legislative pronouncement—frames interpersonal relationships like that of doctor and patient. Thus, the law necessarily informs the communication.

120. For a summary, see Lewis, supra note 1, at 507–08; Zolla & Zolla, supra note 8, at 42–44.

121. CAL. P ROB CODE § 3208(a)–(b) (West 2000).

122. Id. § 3208(c).

123. SCHNEIDERMAN & JECKER, supra note 37, at 85.

1250 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 More importantly, judicial intervention expresses the legislative will regarding doubtful cases. If no doctor or surrogate is involved, the statute recommends a default position. This position defines an outside boundary for actions, but allows much variation as to the content of the particular decision. A physician must have some reasoning, at least as justified as the judicial balancing test, to withdraw treatment. This currently leaves a wide area of latitude that is without definitive form. If a judge is faced with the patient’s request and no other physician or institution is willing to comply with it, the judge would seemingly have to adopt the default position commensurate with the common law tradition: Respect the patient’s right to determine the course of her treatment.

The statute certainly leaves room for a doctor to withdraw, but a judge might reasonably be worried about safeguards to ensure this decision is not taken lightly and could very well value the strong state interest in promoting life and autonomy of the patient so as to compel continued treatment. If the determination that treatment is futile followed a carefully structured decisionmaking process, a judge might be more willing to allow withdrawal. Such an approach requires that the court abandon strictly principled or utilitarian calculations to arrive at the correct outcome.

Instead, it asks the court to ensure that the decision process is complete and fair. While this is a shift in jurisprudence, it is not one that exceeds the ability or expertise of the court. Courts, familiar with balancing procedures and questions of due process, are capable of reviewing the schematic outline of a decision process while deferring judgment on the outcome.

The courts can review the process rather than direct the moral decision.

This process review approach would enable patients and physicians to create an appropriate approach—or even opt out of the relationship. Yet, it would not force one or the other to adopt a course of action simply because the court imposes a moral structure.


UHCDA Adopting a plain language reading of sections 4734 and 4735, it might appear that physicians can opt out of following a patient’s directives. The statute does provide, however, some explicit constraints. Despite the focus on conscientious and medical futility, the UHCDA stresses the importance of the general responsibility to follow the wishes contained in advance directives and emphasizes that the patient’s surrogate should not be 2002] FUTILITY AND THE UHCDA 1251 ignored. The physician has a responsibility to determine the patient’s wishes and whether an advance directive or surrogate exists.124 There are two possible foundations for this duty. First, the ascendance of the principles of autonomy and self-determination require that the physician affirmatively promote these patient rights. This denies a merely technical role for the physician. It relies on a principled sense of morality—the creation of affirmative duties requiring that the patient be treated as a source of duties that extend beyond the merely contractarian.

The physician is not merely a technical adviser, but an agent ensuring that the rights of the patient are realized. It relies upon the “given” values that have been reasoned and esteemed in a western democracy. Courts, however, are unlikely to enforce affirmative duties. Given the unique relationship between a physician and patient, there may be a moral obligation for the physician to adopt and promote the patient’s goals.

A second possible interpretation is that the duty to promote the patient’s rights is merely a legal recognition that physicians and patients are inherently engaged in a human relationship. From a caring perspective, this requirement ensures that the physician be receptive to the patient and create an appropriate course of action based on a cocreated reality. This perspective again emphasizes the individualized differences in each factual situation and does not lionize a right or fundamental responsibility. One taking the caring position need not deny the fact that the individual does have some rights and autonomy, but these aspects would not be paramount.

Rather, the fostering and legal affirmation of the communicative process would be emphasized and valued.

While a proponent of the caring ethic may champion the second approach, the legal philosophy seems unlikely to rely on such “fuzzy” moral reasoning. The statute does, however, give further affirmation of this position. First, by casting these decisions as ethical, not legal, the courts acknowledge the pantheon of possible goals and values.125 Second, if a physician does not want to comply with advance directives, a process of communication is activated. The law recognizes that, within a relationship, the physician as well as the patient has a moral role that requires communication of goals.

Section 4733, which explains the general duties of a physician to comply with patient goals, explicitly lists sections 4734 and 4735 as exceptions to these general duties.126 It would seem that this dismisses the

124. CAL. P ROB. CODE §§ 4731, 4733 (West 2000).

125. See, e.g., Bartling v. Superior Court, 209 Cal. Rptr. 220, 230 (Ct. App. 1984).

126. CAL. P ROB. CODE § 4733 (West 2000).

1252 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:1217 care-provider’s entire duty to consider the patient’s request if contrary to policy or conscience. It is clear, however, that to some degree, the careprovider must consider such a request, even if to determine that it does indeed differ from the conscience or accepted medical standard. Once this is determined, the care-provider’s responsibility to consider the request has seemingly concluded. While there are steps to discharge this duty, the exception offers a clear cancellation of the ethical duty. In a rightsprincipled-based reasoning, such a blanket excuse may be acceptable.

When given conflicting duties, the law offers a standard by which one duty could be discharged merely by invoking another valid right. Indeed, the law seems to recognize one of the conflicts within Kantian or principled reasons—that these principles and duties often do conflict and one must be relieved. The doctor need not violate one duty in order to fulfill another duty—to the patient.

When one considers the roots of opting out, such a rights-based abrogation is clearer. The preeminent statutory right of a physician’s conscientious abstention stems from legislative intent to prohibit compelling doctors to perform abortions. 127 Given that some doctors have strong moral or religious-based objections to abortion, the law recognizes a right to decline to perform despite a conflict with the duty to treat the mother. Here, the law elects for an opting out by the care-provider when a conflict arises. In the absolutist terms of rights and principles, there appears to be a complete excuse to not fulfill a duty to treat.

In contrast, the care-communicative theory would approach this “opting out” more critically. Because the care-provider and patient are inherently engaged in a relationship, there cannot be a simple abandonment by the care-provider should conflict arise. Even though the law suggests that this right to leave unilaterally ends the relationship, such an exit would violate the caring model. In caring, it is incumbent upon the care-provider to discover with the patient (or surrogate) the source of the conflict and make clear the nature of the difference. It should be noted that the patient and surrogate have a reciprocal role to do the same. The “out” in section 4734 should not be seen as license to leave the relationship (no matter how gracefully), but to reexamine the meaning and purpose of the caring/caredfor relationship.

Within the UHCDA, there are some indications that this caringcommunicative path is encouraged and promoted. Specifically, section 4736 requires that if the care-provider cannot comply, they must “[p]romptly so inform the patient, if possible, and any person then

127. See Levine, supra note 4, at 94–95.2002] FUTILITY AND THE UHCDA 1253

authorized to make health care decisions for the patient.”128 This provision seems to require the very communication foreseen by a caringcommunicative ethic. The physician is expected to communicate the disagreement, attempt a transfer, and only then, withdraw. This appears to be a sensitive approach to futility, but a closer reading suggests otherwise.

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