On Behalf of John Robertson: May Guardians Terminate Treatment Without Judicial Review?

By John Robertson

Legal questions about end-of-life decisions have moved on since the paradigm-setting battles in the 1980’s and 1990’s.  It is now clearly established that a competent person has the right to refuse needed medical treatment and to make binding advance directives about treatment if she becomes incompetent.  Physician-assisted suicide is a policy choice for states, not a constitutional right.  National debate now focuses on providing palliative care rather than high-tech interventions to prolong  fading life.  Cost reduction consistent with these values remain an omnipresent dilemma.

Sticky legal issues, however, remain, particularly with regard to the care of incompetent patients, as a Minnesota trial court recently reminded us (In re the Guardianship of Jeffers J. Tschumy, Hennepin County District Court, Fourth Judicial District, #27-GC-PR-07-496, October 18, 2012).   The question before the court was whether a broad grant of power to a guardian to make decisions about consenting or not consenting to medical treatment includes the power to have treatment terminated that will result in the ward’s death.  While allowing treatment to be withheld in that case, the court decided that only a judge, not the guardian on his own, could make that decision.  An appeal is now pending.

The court’s opinion catalogued the main arguments for each position before coming down on the side of judicial review.  Allowing the guardian to decide without court review was supported by the broad language of powers granted to guardians—to make decision about providing or withholding medical treatment—and the legislature’s failure to list termination of treatment as something that was explicitly denied the guardian (as it had done with certain other procedures).  It would also be quicker and less cumbersome, expensive, and burdensome  both for judges and family members to have guardians empowered to terminate treatment.

On the other side were the argument that the awesome power to end life was not specifically granted the guardian, and the fact that guardians are often appointed years before such decisions must be made.  At that time of appointment there is usually little thought of ending the life at some future time, and guardians so appointed may have not expertise or training in such matters.  The court concluded that until the legislature decided otherwise, a guardian would have to return to court for permission to end treatment that would result in the ward’s death.

The court’s concern about the expertise of guardians and the often long time gap between when they are appointed and when such a decision has to be made are reasonable, and may well be determinative for the legislature when it faces this issue.   Perhaps courts should be involved in the ultimate decision, but it does not follow that they have to make the decision in each case.  It may be enough that guardians return to court at a later time to have that power specifically granted them, if the court finds them fit to make such a decision.  Even if the legislature requires courts to make the termination decision, it should not require that an independent advocate for the ward then be appointed, as occurred in the Tschumay case.  It should be enough that the court reviews the basis for the guardian’s decision to terminate treatment.  An affadavit or testimony from a physician might suffice here together with evidence from family members or others who know the ward and the situation.

With 12,000 persons under guardianship in Minnesota, many of whom at some point may face life-determining medical decisions, the question is not trivial.  Many other states will have to face the same issue.  Indeed, such decisions will eventually intersect with measures to restrict costs.  It would be shocking if cost-control measures were explicitly guided by the incompetence/competence of the patient, or indeed, any assessment of mental status as such.  Yet those considerations might come into play surreptitiously as guardians and courts come to terms with providing treatment, including hospitalization and expensive procedures, to incompetent patients with bleak prospects for recovering their well-being.

Perhaps the most interesting point of all in the court’s decision was the sharp line it drew between its punctiliousness for incompetent patients under guardianship and its lack thereof for incompetent patients under the decisional authority of a proxy whom they have designated in a health care directive.  No court review is required in the latter case.  There is, of course, no reason to think that proxies appointed by directive are any better decision-makers than earlier court-appointed guardians, especially if the guardian is a close family member or a professional with training and experience in end-of-life matters. However, the source of authority for each differs–one is by the parens patriae power of the state and the other is by the patient herself when competent.   Either decision-maker, however, is prone to the systematic errors and biases that creep into proxy decision-making—the tendency to view Time 2 interests when incompetent through the lens of Time 1 competency and interests when the directive is made.

The importance of the guardian’s power vs the patient’s power to designate a proxy may be swallowed up by the greater problems of extending palliative care to all and drawing the right balance between cost control and end-of-life interests.  Still, such questions remind us of the many legal challenges that will arise in end-of-life settings as policy evolves.


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