1. The Right to be Free from Unwanted Treatment
Generally speaking, people have a right to be free from harmful or offensive physical contact, especially unwanted intrusions into their bodies. When someone intentionally causes harmful or offensive contact without consent, the person receiving the unwanted contact may sue for battery. In her concurring opinion in Cruzan v. Director, Missouri Department of Health, Justice O'Connor notes that, in other contexts, bodily intrusions raise due process and Fourth Amendment concerns, suggesting a related constitutional right to be free from unwanted medical treatment. Specifically, she states that
The State's imposition of medical treatment on an unwilling competent adult necessarily involves some form of restraint and intrusion. A seriously ill or dying patient whose wishes are not honored may feel a captive of the machinery required for life-sustaining measures or other medical interventions. Such forced treatment may burden that individual's liberty interests as much as any state coercion. . . . The State's artificial provision of nutrition and hydration implicates identical concerns.
While the majority in Cruzan do not find that there is a constitutional right to surrogate or advance decision making by an incompetent person to refuse treatment, all fifty states and the District of Columbia have enacted laws allowing advance or surrogate decision-making through living wills, also known as medical advance directives.
Medical advance directives are a way for people to specify what treatments they do and do not wish to receive in the event that they become incapacitated. Typically, medical advance directives focus on end-of-life care. A typical provision from an advance directive comes from the California statutory medical advance directive:
I do not want my life to be prolonged if (1) I have an incurable and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits;
I want my life to be prolonged as long as possible within the limits of generally accepted health care standards.
States generally enforce medical advance directives; for instance, the California Probate Code allows an individual to sue a health care provider who intentionally violates his medical advance directive for $2500 or actual damages, whichever is greater, plus attorney's fees.
Unfortunately, much of the power of a medical advance directive is removed by "conscience" provisions, such as California Probate Code 4734, which provides in part that
A health care provider may decline to comply with an individual health care instruction or health care decision for reasons of conscience.
A conscientious objector must notify the patient and arrange transfer as soon as possible to a health care provider who will comply with the advance directive. Meanwhile, he is to provide "continuing care" to the patient - in many cases, exactly what the patient hoped to avoid by creating an advance directive.
2. Psychiatric Advance Directives and the Americans with Disabilities Act
Psychiatric advance directives contemplate future psychiatric care and specify which treatments a person consents to or refuses. Psychiatric advance directives are much less accepted than ordinary medical advance directives, as forced psychiatric treatment is widely considered to be unquestionably ethical, even if the patient refused it in advance while competent. Even where existent, psychiatric advance directives are typically laughably minimal in scope. A typical psychiatric advance directive provision, published by Protection and Advocacy, Inc. of California, provides in part:
If during my admission or commitment to a mental health treatment facility it is determined that I am engaging in behavior that may make emergency intervention necessary, I prefer the following choices to help me regain control:
- Provide a quiet private place
- Have a staff member of my choice talk with me one-on-one
- Assist me with telephoning a friend or family member
- Allow me to go outside
- Provide me with materials to journal or do artwork
Other common provisions include the refusal of certain medications and the refusal of electroconvulsive therapy.
What I find striking about the above list (aside from its infantilizing nature) is the level of coercion it assumes and accepts as part of treatment ("allow" me to go outside?). Nevertheless, states have often refused to enforce even such minimal provisions.
In 1999, a schizophrenic Vermont woman named Nancy Hargrave executed a psychiatric advance directive refusing "any and all anti-psychotic, neuroleptic, psychotropic or psychoactive medications," and electroconvulsive therapy. She then sued to ensure that her directive would be enforced. The state of Vermont argued that it was free to involuntarily medicate Hargrave in violation of her advance directive because of a state law that allowed for forcible medication of "mentally ill" people who posed a danger to themselves or others - even in non-emergency situations. Hargrave argued that the state policy of refusing to honor the advance directives of people with mental illnesses, but not others, violated the Americans with Disabilities Act. The federal trial court agreed with Hargrave, and the state appealed.
In 2003, the United States Court of Appeal for the Second Circuit ruled that Vermont's discriminatory policy - which applied only to certain mentally ill people - violated the ADA. Hargrave v. State of Vermont, 340 F.3d 27 (2d Cir. 2003). (In 2005, the plaintiffs were granted their attorney's fees.)
It is important to note that this is a very limited victory for psychiatric advance directives. That said, the trial court's position is very promising:
The very nature of a [medical advance directive] is to ensure that individuals, competent at the time of its creation, are protected from unwanted medical interventions at a time when they are no longer competent. For individuals facing physical illness and disability, their ability to preclude certain life saving treatment to which they might be subjected at a later point when they are not competent to voice a decision is protected by a previously executed [directive]. There is no question that at the time a particular medical treatment is at issue, an individual's physical illness might be terminal without the treatment. Thus, a prior decision to forego medical intervention necessary to sustain life is permitted for the physically ill or disabled, even though at the time of the incapacity, rejection of the treatment could be seen as posing a "danger to themselves." In fact, that is the very purpose behind legislation permitting individuals to execute prior health directives such as Vermont's [directive]. While there is no provision in Vermont law to compel an incompetent physically disabled individual to undergo treatment in violation of a [medical advance directive], even if that treatment is needed to save the individual's life, the State would have the Court declare that because a mentally ill individual at a particular point in time poses a danger to herself, her prior wishes to forego medical treatment calculated to abate the danger can be ignored. Hargrave v. State of Vermont, No. 2:99-CV-128 (D. Vt. Jan. 11, 2000). [Bolded emphasis mine; italics in original.]
The Second Circuit likewise focuses on dangerousness to others as the only relevant exception to ADA protection - not danger to oneself - but its language is not nearly as liberty-affirming as that of the trial court.
3. Suicide and the Police Power
An important challenge to the right to die is the idea that the police power of the government applies to the prevention of suicides. Justice Scalia has been a great defender of this idea, as in his concurring opinion in Cruzan. Scalia's position is that not even a competent person has a Constitutional right to be free from bodily interference if that bodily interference is directed toward preventing his suicide. He writes:
It is not even reasonable, much less required by the Constitution, to maintain that, although the State has the right to prevent a person from slashing his wrists, it does not have the power to apply physical force to prevent him from doing so, nor the power, should he succeed, to apply, coercively if necessary, medical measures to stop the flow of blood. The state-run hospital, I am certain, is not liable under 42 U.S.C. § 1983 for violation of constitutional rights, nor the private hospital liable under general tort law, if, in a State where suicide is unlawful, it pumps out the stomach of a person who has intentionally taken an overdose of barbiturates, despite that person's wishes to the contrary.
True to form, Scalia provides no hint of an ethical argument justifying his position; he merely repeatedly refers to the fact that suicide was a felony at common law. He specifically states that, under the Constitution, "the power of the State to prohibit suicide is unquestionable." What is suicide to Justice Scalia? Actually, it includes not only what we would normally consider acts of suicide, but also ordinary advance directives calling for the removal of life support if a person will never regain consciousness.
Scalia is, of course, the same enlightened figure who defended torture because he thought a character on a television show was doing it right. Intellectual giants like Justice Scalia remain on our bench and continue to make decisions that affect the lives - and deaths - of all of us lesser creatures.