Journal Articles

1. Buchanan, A, Medical paternalism or legal imperialism: not the only alternatives for handling Saikewicz-type cases., American Journal of Law & Medicine, vol. 5 no. 2 (January, 1979), pp. 97-117.
   (last updated on 2024/01/01)

   Abstract:
   In 1977, the Supreme Judicial Court of Massachusetts held in the Saikewicz case that the probate court is the proper tribunal for making decisions whether to give or withhold "life-prolonging treatment" for terminally ill incompetent patients. This ruling provoked debate in the medical and legal communities. Dr. Arnold Relman, Editor of The New England Journal of Medicine, argues that Saikewicz encroaches on existing sound medical practice and requires decision-making machinery that is impractical and inhumane. Relman contends that treatment decision for terminally ill incompetents in Saikewicz-type cases should be made by the physician in consultation with the patient's family. Law professor Charles Baron, in contrast, defends Saikewicz's judicialization approach, arguing that such decision must bemade in an adversary framework that approximates the ideal of the rule of law. In the present Article, Professor Buchanan argues that Relman's criticism of Saikewicz rests on a defective, medical paternalist view of the physician-patient relationship, and that Baron's support of Saikewicz is based on an unjustifiable, legal imperalist view of decision making for incompetents. In Buchanan's view, Relman's approach fails to distinguish appropriately between the making of medical judgments and the making of moral judgments and wrongly assumes that the patient's family typically cannot understand the elements of the decision, while Baron's approach unjustifiably extends the sphere of the legal process by ignoring the special moral relationship that usually exists between the family and its incompetent member. Buchanan proposes an alternative decision-making approach that he believes incorporates the merits, while remedying the defects, of both Baron's and Relman's approaches. The alternative is based on three propositions. (1) The proper presumption in Saikewicz-type cases is that the family of an incompetent is to make decisions concerning treatment. (2) This presumption of the family's dominant role in decision making is defeasible: protection of the patient's rights requires that decisions be made within a framework that allows vigorous discussion and accoutability through impartial review and that provides for legal intervention when necessary. (3) The institutional framework for implementing the features listed in the preceding proposition will rely heavily upon an ethics committee that is neither an all-medical prognosis committee nor an administrative agency of the hospital. Besides evaluating and responding to the Relman and Baron approaches, Buchanan examines the contribution to the Saikewicz debate made by law-and-medicine professor George Annas. In essence, Buchanan rejects Annas's argument that, taken together, the Saikewicz opinion and the Quinlan opinion of the Supreme Court of New Jersey delineate a proper division of medical and legal decision-making responsibility concerning terminally ill incompetents. Buchanan concludes that, contrary to Annas's view, those two cases are not reconcilable.