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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Sunday, December 21, 2014

Long Goodbye: The Deaths of Nancy Cruzan

And Also: The Eagles (against a bad team) and SF just wanted to lose yesterday, didn't they?
An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated.
The title book is a very good account that could have just as well been a fictional narrative of a family -- particular a sheet-worker from the Midwest named "Joe" (a nickname) Cruzan  -- dealing with a horrible tragedy.  As noted here, the book does cover the legal matters very well, but ultimately it is a personal story with Joe Cruzan at the center. The book was written by the pro bono lawyer that took their case, thinking it would be a fairly simple probate matter.  It was written over a decade after the case cited above, providing time for contemplation.  He later wrote a general book on end of life issues, which I plan to read soon.

In the early 1980s, a twenty-something woman (his daughter, then married) was in a car accident.  Though a few of her caregivers claimed to see a few cases of recognition and even tears from a Valentine Day's card, all other appearances (including by doctors and the family, who took her home for Christmas at the end of the first year) she was in a permanent vegetate state (PVS).  As a dissent state judge noted later on, even if she was not, some form of recognition of her state would be a form of "living hell."

After a few years, treatment not doing anything and transfer made to a state hospital known for long term care (earlier special treatment paid by insurance she obtained via her job), it was determined that it would be best to end her life. This is what in effect what would happen by taking out her (to quote the USSC) "artificial feeding and hydration equipment."  Note that by this time, the state was paying for her care, but in other cases such fiscal concerns might be an issue. Also, there was the ongoing trauma to the family of dealing with her horrible existence.  It is unclear -- though here it seems enough -- if merely her own rights and dignity should factor into the decision-making here. IOW, if somehow, the family's well-being was part of the decision process, but it still was found to be in her own best interests, the former should not be disqualifying.  This so even though it is granted obviously that such third party concerns can in certain cases result in pressure to do things of a dubious nature.

The problem was that she did not provide any sort of living will, and (not noted by the book) akin to NY, Missouri had stricter rule -- as interpreted by the Missouri Supreme Court (4-3) (or, perhaps I should say, going by the book, on how the USSC interpreted what that court did) -- "clear and convincing" evidence had to be provided.  By this time, her parents were appointed guardians (her husband accepted a petition of divorce on her behalf and apparently basically exited the picture), but special concern for "life" per state policy required more for even this sort of third party to remove such treatment. This so even though the guardian appointed to represent Nancy Cruzan and the probate judge long involved in her case agreed it was in her best interests to do so. The USSC upheld the state supreme court 5-4.

This was one more loss in a series for the family (the book centered on the trio of the parents and her sister; a third sister was mostly off-stage) over the 1980s.  But, this is one of the many cases -- such as a criminal case where relief is later obtained in state court -- where the "loss" was mixed. First, the Cruzan opinion did grant, at least for sake of argument, a constitutional liberty interest to refuse treatment. This included the artificial nutrition provided here, something the state challenged. Five justices recognized this as a fundamental right (O'Connor plus the four dissenters).  The opinion was a narrow one -- a clear and convincing standard was an acceptable rule in a case like this, even though the family were the decision-makers.  If Missouri, e.g., refused to even allow this if she stated her desire for it via a living will, that would be a separate case.

The dissents by Brennan and Stevens (Scalia concurred to say that even the majority went too far) were eloquent and Stevens in particular is good reading for those who like that sort of thing.  Stevens in effect said that the state can't have a bare interest in defining life that allows them to override those who have different understandings. The guardian appointed to represent the patient's interests and fact-finding by the judge here provide safeguards. Use of Nancy Cruzan in effect as a means here is "unconscionable." And, note there is some argument there -- for instance, many (by no means all) of her caregivers were strongly against removing her feeding tube. The mind-set is understandable, especially for those whose job is to care for people like herself.  But, would they feel much different if some signed living will popped up? I think not. 

The range of horribles about killing the mentally retarded and the like had a certain ironic tinge.  One of the people who testified at the trial was wife of Paul Brophy, whose treatment was also removed. She supported the Cruzans.  She was a nurse for the mentally retarded.  Nancy Cruzan herself worked as an aide to care for the mentally retarded. In fact, the "new evidence" -- a key reason why the USSC opinion was not a total loss -- that ultimately was recognized as "clear and convincing" came by her two co-workers there.  [Another witness was added too, but the lawyer thinks he was much less important.] They reported her saying that she did not want to live like that.  Another remark made regarding her grandmother to her friend was not deemed enough, nor the family's general ability to understand her wishes. But, Nancy Cruzan's comments, in particular about a young girl that she bluntly called a "vegetable," here did the trick.

So, the state bowing out of the case after the Supreme Court ruling, the Cruzan family could finally after seven or so years have closure. But, showing in a different context how an execution might not do that (I do not think this was an "execution" -- it's a "different context"), the father did not truly move on.  A few years later, he committed suicide.  The mother died of cancer a few years later.  And, such stories continue, including when some wish a more active form of euthanasia, like the young woman who recently ended her life in Oregon.


* [ETA] The questionable biased assumptions here are also found in the abortion context. Special burdensome measures, such as counseling, is repeatedly only required when abortion is chosen. A person might arguably in various cases be making a questionable decision to have a child, but that is not deemed to warrant special state involvement.  A "state interest in life" or some such is cited there, but that's debatable. Who is to say that  such a state interest at least would warrant counseling in all cases?

Re-reading Brennan's dissent, the Cruzan case has a similar issue. If anything, it might be the case that most people, even without living wills, would want their guardians to do what the parents did here. But, non-action that would clash with this desire did not require special safeguards, a special hearing to reject the interests of the parents. Only removing the treatment did.  More so perhaps than in the abortion context (a child is surely not the "status quo" any more than an abortion), I can understand the different standard up to a point. But, the second guessing here is problematic all the same.  He has a point.

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