Saturday, September 26, 2020
David Orentlicher (University of Nevada), Cruzan and Surrogate Decision-Making, 73 (1) SMU L. Rev. 155 (2020):
When the U.S. Supreme Court issued its landmark “right to die” decision in Cruzan v. Director, Missouri Department of Health thirty years ago, the dissenting Justices and many observers criticized the Court for rejecting a right of Nancy Cruzan’s parents to refuse medical care on her behalf. Ms. Cruzan had not written a living will or a durable power of attorney, nor did it appear that she had left clear oral instructions about her wishes. But she did have loving parents who were dedicated to doing what was best for her. Nevertheless, according to the Cruzan Court, “If the State were required by the United States Constitution to repose a right of ‘substituted judgment’ with anyone, the Cruzans would surely qualify. But we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself.” This article argues that the Cruzan Court neglected an important justification for the right of patients to have medical decisions made for them by family members. If patients leave clear evidence of their treatment preferences, treatment must be based on those preferences. Similarly, if patients leave clear evidence that they would want a spouse or other family member to make medical decisions for them, the desired surrogate should be able to make medical decisions for the patient. A formal power of attorney appointment is an important way to provide clear evidence, and just as oral statements and other evidence can be used to establish the patient’s treatment preferences, so should oral statements and other evidence be able to establish the patient’s preferences for a surrogate decision-maker.