Cassandra C. Goes Home – Connecticut Misses an Opportunity

By Jonathan F. Will

On Monday Cassandra C. was sent home from the hospital.  Her cancer is in remission after responding well to treatments.  Many will recall that those treatments were forced on Cassandra against her wishes and those of her mother.   Back in January, the Connecticut Supreme Court issued a two-page order agreeing with state officials that Cassandra, at seventeen years three months, should be compelled to undergo chemotherapy to treat her Hodgkin’s Lymphoma.

The success of this medical treatment may be viewed by some to vindicate the comments of those like bioethicist Art Caplan and Fox News legal analyst Peter Johnson, Jr., who agreed with the decision.  Indeed, Mr. Johnson, after giving a personal anecdote of his own history with Hodgkin’s Disease, declared this decision to be right on the law, right on the ethics, and right on humanity.

Mr. Johnson gave the impression that a minor should never be permitted to make such a medical decision, while Dr. Caplan at least implied that his conclusion might be different if the refusal was based on religious beliefs.  Then you have a commentator in The Economist who came to the exact opposite conclusion.  He expressed concerns about Cassandra’s liberty and the rights of her mother to make decisions on her behalf.

I’m not so easily convinced by their arguments.

And for my money, the Connecticut Supreme Court missed an opportunity to provide meaningful guidance to the lower courts and/or the legislature to deal with these types of situations in the future.   Cases involving medical-decision making by minors are very complicated, particularly when they involve life-and-death consequences.

It is well-settled that parents are not permitted to make martyrs of their children by making medical decisions that imperil their lives.  Therefore, Cassandra’s mother could not legally refuse the chemotherapy for her daughter given the 85% likelihood of success with treatment.  But the law also presumes that those under the age of eighteen lack the competence to make certain important decisions (including most medical decisions), and that is why Connecticut intervened to protect Cassandra using its power as parens patriae (parent of his/her country).

For their part, Cassandra’s attorneys suggested that such protection was unnecessary.  They argued that Connecticut should adopt some version of the Mature Minor Doctrine (MMD), which exists largely as a creature of common law, and is not acknowledged by many states.

MMD is based on a straightforward principle: certain individuals (even before the age of eighteen) possess the requisite capacities to make these decisions for themselves.  In ethical terms, we might say that such persons are capable of making autonomous decisions deserving of respect as such, and there is nothing magical about the eighteenth birthday that bestows the relevant attributes.   States like Illinois that have adopted MMD possess more flexibility to make determinations in difficult cases.

And Cassandra’s case is difficult.  It is too simplistic to say that because she is only months shy of her eighteenth birthday she should be permitted (or not permitted) to make the decision for herself, particularly given that her competence will not be meaningfully different on her next birthday.

Properly understood, MMD requires a fact driven inquiry into the decision-making capacity of any minor seeking to rebut the presumption of incompetence.  How well does the minor understand the risks/benefits/alternatives associated with the medical decision?  Substantially autonomous decisions (those deserving of legal respect) are decisions made based on adequate understanding, while remaining free from controlling interference.

No decisions are made in a vacuum.  Interference is inevitable.  But certain interference prevents autonomous choice.  Ignorance is a great example, and informed consent laws seek to alleviate it.  There can also be interferences from social forces, including family and religious leaders.  It is concerning that some sources reported that Cassandra’s mother was in the “driver’s seat” trying to convince Cassandra of the mother’s own views regarding chemotherapy as a toxin worse than the cancer itself.  The Supreme Court of Connecticut’s order compelling treatment made no reference to this, though a primary inquiry ought to have been made into whether the decision was truly Cassandra’s own.

To be sure, it can be difficult to reconcile the mother’s right to raise Cassandra as she sees fit with the mother’s inability to make Cassandra a martyr by refusing treatment on her behalf.  Further, the point at which persuasion becomes coercion can be hazy (new informed consent laws in the abortion context provide a good example).

But the response to difficulty should not be to cop out – either by forcing treatment or by saying Cassandra is “close enough” to make the decision for herself.  Connecticut courts seem willing to entertain evidence regarding maturity; however, by avoiding the ultimate question of whether Connecticut ought to adopt MMD (either through case law or some sort of legislation), the Connecticut Supreme Court missed an opportunity to provide meaningful guidance for future cases.

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