At Law: The Conscious Incompetent Patient

2002 ◽  
Vol 32 (3) ◽  
pp. 9 ◽  
Author(s):  
Rebecca Dresser
Keyword(s):  
Incompetent Patient

Ethical Issues in the Care of Handicapped, Chronically III, and Dying Children

1985 ◽  
Vol 6 (10) ◽  
pp. 291-296
Author(s):  
Norman C. Fost
Keyword(s):  
Lung Disease ◽  
Ethical Issues ◽  
Court Order ◽  
Behavior Control ◽  
Incompetent Patient ◽  
Dying Children ◽  
Broad Consensus

There is presently broad consensus that involuntary sterilization of an incompetent patient should be done only in the following unusual circumstances, and then only after approval by a court: 1. If the progeny would be so severely damaged that their lives would be arguably worse than nonexistence (eg, a disorder such as Lesch-Nyhan syndrome), OR a retarded female's physical or psychologic health would be seriously jeopardized by a pregnancy and/or abortion (eg, severe heart or lung disease), AND 2. There are no alternative, less restrictive ways of avoiding pregnancy (such as segregation, supervision, behavior control, or reversible forms of contraception), AND 3. There has been a court order, following a process designed to ensure that the procedure is necessary to protect the interests of the patient.

The Saikewicz Decision: A Medical Viewpoint

1978 ◽  
Vol 4 (3) ◽  
pp. 233-242
Author(s):  
Arnold S. Relman
Keyword(s):  
England Journal ◽  
Acute Leukemia ◽  
New England ◽  
Treatment Decision ◽  
Next Of Kin ◽  
Incompetent Patient ◽  
Medical Tradition ◽  
The Family ◽  
Attending Physicians ◽  
Seriously Ill

AbstractIn this Article, Dr. Arnold S. Relman, the Editor of The New England Journal of Medicine, takes issue with the 1977 Saikewicz decision of the Massachusetts Supreme Judicial Court, which addressed the question of whether chemotherapy should be provided to a severely retarded 67-year-old man who had developed acute leukemia. Dr. Relman interprets Saikewicz as requiring that medical treatment decisions involving the life or death of incompetent patients must receive judicial resolution instead of resolution by the patient's family and physicians. This rule, he asserts, violates medical tradition, and its application will result in serious problems, such as the unnecessary prolongation of the suffering of many seriously ill persons. Dr. Relman proposes, as an alternative to the Saikewicz approach, that in such cases judicial resolution should occur only when there is disagreement, concerning treatment, among next of kin, or between next of kin and attending physicians, or when there is a complaint of injury or of wrongdoing. In all other situations, resolution solely by next of kin and attending physicians should be sufficient. Adequate protection of the interests of the incompetent patient could be achieved by a requirement that the physician in charge document in the medical record that the treatment decision received the concurrence of the family and advance approval of a group of the physician's professional colleagues who have no vested interest in the outcome of the decision.

Exceptions to the Legal Requirements: Incompetence

2001 ◽  
Author(s):  
Jessica W. Berg ◽  
Paul S. Appelbaum ◽  
Charles W. Lidz ◽  
Lisa S. Parker
Keyword(s):  
Informed Consent ◽  
Legal Framework ◽  
Legal Requirements ◽  
Legal Doctrine ◽  
Legal Cases ◽  
Incompetent Patient ◽  
Consent To Treatment ◽  
Surrogate Decision ◽  
Usual Process ◽  
Patient Competence

It might seem strange to locate discussion of incompetence under the heading of “exceptions.” Although patient competence serves as a prerequisite for informed consent, surely patient incompetence cannot serve to relieve physicians of all obligations, either ethical or legal, under the doctrine of informed consent. The goals of informed consent—safeguarding patient welfare and autonomy—apply no less to incompetent patients, although they must be pursued differently. The goals of informed consent are pursued on behalf of an incompetent patient by a process of surrogate decision making. A surrogate or proxy participates in the informed consent process on behalf of the incompetent patient. Yet, from the perspective of the physician, the patient’s incompetence constitutes an exception to the usual process of informed consent. A determination of incompetence alters the legal requirements for physician disclosure and for patient consent and thus it is properly regarded as an exception in this sense. This chapter, like the previous two, focuses on the legal doctrine of informed consent and addresses the variation in the legal requirements occasioned by a patient’s incompetence. We leave to others to examine in greater detail the ethical justifications for the legal framework surrounding treatment of incompetent patients (3). It has been recognized since the earliest legal cases dealing with consent that certain individuals are incompetent to consent to treatment and that they may be treated without their consent (4,5). One alternative to treatment without the patient’s consent would be no treatment at all (6), a result that would make a fetish of consent, for it would mean that those lacking the ability to make medical decisions would be required to forgo medical care. The exception for incompetent patients is closely related to the emergency exception. In fact, many situations involve an overlap of the two exceptions, since a number of cases of genuine emergency treatment involve unconscious (and thus incompetent) patients. However, the class of incompetent patients includes more than just those who are unconscious, and situations arise involving the treatment of incompetent patients that are not emergencies.

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