A Decision That Just Makes Me Angry

I mentioned a few days ago a decision of the Massachusetts Supreme Judicial Court that would have been funny, except that they ruled that someone should be allowed to die, because he was too retarded to communicate whether he wanted to live or die.

I've now worked my way up to the "right to refuse treatment" decision that was based on that "substituted judgment" precedent. Unlike the Saikewicz decision, which made a cold chill run up my spine when I read how casually they decided to let this guy die, Guardianship Of Roe, Matter Of, 421 N.E.2d 40, 383 Mass. 415 (1981) makes me angry.

The facts of the case: a young man, identified as Richard Roe III to protect his identity, started messing with illegal drugs sometime in middle school. At 16, he had a schizophrenic breakdown. Over a period of several years, he became aggressive, violent, and was eventually arrested for unarmed robbery, assault and battery, and receiving stolen property. He was hospitalized at the Southampton State Hospital. While hospitalized the second time, he was violent towards others.

Eventually, because the hospital's capacity was limited, he was released. Roe's father was made his guardian under existing state laws because the son was incapable of holding a coherent conversation, and unable to care for himself. (Even the attorney who represented Roe in this suit didn't dispute that his client was insane.)

The psychiatrists at Southampton believed that anti-psychotic medications were going to be necessary--and because Roe had developed a fierce hostility towards drugs because of his earlier drug abuse, they believed that they might need to give them involuntarily. Roe's father, as guardian, went ahead and authorized this.

In much the same way that the judges decided what Saikewicz would have decided to do about chemotherapy, if he were competent, the judges decided to substitute their judgment for that of Roe’s father:

If the judge determines that the ward, if competent, would accept the medication, he is to order its administration. If the judge determines that the ward's substituted judgment would be to refuse treatment, we set forth … those State interests which are capable of overwhelming the right to refuse antipsychotic medication.

The Court set a very high standard for allowing Roe’s father to authorize involuntary treatment:

Absent an overwhelming State interest, a competent individual has the right to refuse such treatment. To deny this right to persons who are incapable of exercising it personally is to degrade those whose disabilities make them wholly reliant on other, more fortunate, individuals.

What the Court seemed to have missed, however, is that without treatment, Roe would likely remain incompetent to make his own decisions. With treatment, there was at least a chance that Roe would reach a point where he would be sufficiently sane to make his own decisions.

In order to accord proper respect to this basic right of all individuals, we feel that if an incompetent individual refuses antipsychotic drugs, those charged with his protection must seek a judicial determination of substituted judgment. … The determination of what the incompetent individual would do if competent will probe the incompetent individual's values and preferences, and such an inquiry, in a case involving antipsychotic drugs, is best made in courts of competent jurisdiction.

The Court thus decided that judges were more competent to assess Roe’s “values and preferences” than Roe’s father. If there were some evidence presented that Roe’s father was not concerned with his son’s welfare, or that the psychiatrists advising Roe's father did not know what they were doing, there might be a strong question as to whether Roe’s father should be making this decision. But the Court never identified any such reason to be concerned. At most, they discussed some of the side effects of anti-psychotic medications, compared these medicines to electroconvulsive therapy, and pointed to the past abuse and misuse of psychiatric medications as a reason why the father and psychiatrists at the state hospital should not be trusted with such a decision.

Instead, they decided that only an emergency medical decision would justify allowing the father to authorize such treatment. The psychiatrist who testified at trial pointed out that the longer Roe sat untreated, the more likely it was that his condition would become chronic. This was not enough for the Court.

We think that the possibility that the ward's schizophrenia might deteriorate into a chronic, irreversible condition at an uncertain but relatively distant date does not satisfy our definition of emergency, especially where, as here, the course of the illness is measured by years and no crisis has been precipitated.

Because Roe’s father had been given a guardianship over Roe—but no court had formally declared Roe to be incompetent—the Court refused to allow Roe’s father to make a decision on Roe’s behalf. While they acknowledged that Roe was insane (and even Roe’s attorney did not dispute this), they concluded that the Court was right to override the father’s decision because of their objectivity:

Decisions such as the one the guardian wishes to make in this case pose exceedingly difficult problems for even the most capable, detached, and diligent decisionmaker. We intend no criticism of the guardian when we say that few parents could make this substituted judgment determination by its nature a self-centered determination in which the decisionmaker is called upon to ignore all but the implementation of the values and preferences of the ward when the ward, in his present condition, is living at home with other children…. A judicial determination also benefits the guardian, who otherwise might suffer from lingering doubts concerning the propriety of his decision.

The guardian, in this case, Roe’s father, doubtless thanked the justices for helping him with his “lingering doubts” by overriding his judgment, and that of the doctors, by ruling that a violent and insane person could not be treated against his will—dramatically increasing the odds that Roe’s mental illness would become chronic.

I understand that parents are too emotionally involved in the situation to be completely objective. Sometimes parents have an interest in seeing that someone doesn't get well--for example, if there's a history of abuse that the father would like to keep quiet. But this wasn't Roe's father just flipping open the Physicians Desk Reference and saying, "Gee, why don't we put our son on this drug? It sounds like it might work!" This assumption by the justices of the Massachusetts Supreme Judicial Court that they were better suited to make agonizing decisions than the patient's father and psychiatrists is legal arrogance at its worst.

If you don't have kids, or you have never had to make momentous decisions about the care of a child, you may not understand the anguish that a parent goes through in a case like this. If I had been Roe's father, the temptation to go punch out the arrogant idiot that wrote this decision would have been very, very strong.

UPDATE: The deeper it gets, the more apparent it is that the Massachusetts high court must have been smoking a lot of weed when they wrote this one.

The Court finally laid down six criteria for deciding how a judge should decide whether to force treatment. One of these criteria was an open invitation for judges making these decisions to ignore express statements of the patient before he became ill:

If the ward has expressed a preference while not subjected to guardianship and presumably competent, … such an expression is entitled to great weight in determining his substituted judgment unless the judge finds that either: (a) simultaneously with his expression of preference the ward lacked the capacity to make such a medical treatment decision, or (b) the ward, upon reflection and reconsideration, would not act in accordance with his previously expressed preference in the changed circumstances in which he currently finds himself.

But what are a patient’s preferences? How would a judge know that the patient “would have changed his opinion after reflection or in altered circumstances.” This is worse than guessing what Saikewicz might have wanted; here, the Court here encouraged a judge to overturn a patient’s “expressed preferences … made while competent” based on what a judge decided that patient would have done.

The sixth criterion for “substituted judgment” is perhaps the most ludicrous of all:

Sixth, the prognosis with treatment must be examined. The likelihood of improvement or cure enhances the likelihood that an incompetent patient would accept treatment, but it is not conclusive.

After all, a sane person might prefer insanity—you just can’t tell! Or perhaps the lawyers that wrote this opinion weren't entirely sure which was preferable.