As a general
matter, it's always seemed to me that determinations of mental competence
with respect to a specific judgment should not be based solely on the
"rationality" of that specific judgment, but should look
instead to the entirety of a person's mental state.
Even
putting that view to one side, though, the crucial question in this case,
I think, is not whether J.M. believes in miracles, even to a degree that
the rest of us would find over-optimistic, but whether she understands,
as a matter of pure fact, that a miracle would be necessary to save her
life.
I'm also
bothered by the focus on the "inconsistency" and unorthodoxy of
her views. If the case is viewed through the lens of religious
liberty, it should be clear that protected religious commitments need be
neither consistent nor orthodox. And if the case is simply viewed
under the rubric of patient autonomy, it seems odd that
"irrational" decisions "unsupported by medical
evidence" would be protected, but confidence in miracles (however
unreasonable, inconsistent, or unorthodox that confidence is) would not
be.
Finally,
as to consistency: Even a non-religious person with no faith in
miracles might well distinguish between blood transfusions and
resuscitation, which are one-time life-saving procedures, and dialysis,
which involves an indefinite course of often enervating, dispiriting,
treatment. The point in that non-religious case would not be that
the person wanted to die, but that he or she was willing to undergo some
procedures but not others, in order to live. In the case of J.M.,
it might be that she thinks that God wants her to look to doctors to save
her life through transfusions, resuscitation, etc., but would intervene
miraculously to avoid her having to suffer the torment of dialysis.
This is not a judgment I would make, but I'm not J.M.
Take
care.
Perry
From: "Volokh, Eugene"
<vol...@law.ucla.edu>
Date: Thu, 15 Jul 2010 14:58:50 -0700
From
In
re
Matter of J.M. (N.J. Super. Ct.),
http://www.judiciary.state.nj.us/decisions/BER_P_036_10.pdf, just
released earlier this month (for some interesting reader comments, see
http://volokh.com/2010/07/15/is-a-patient-who-believes-jesus-would-save-me-competent-to-refuse-life-saving-medical-treatment/#comments):
A patient has capacity to consent to medical treatment if she can
reasonably understand her condition, the effect of the proposed
treatment, and the risks of both undergoing and refusing the treatment.
In re Conroy, 98 N.J. 321, 382 (1985). Of the three psychiatrists
who testified, two of them determined J.M. lacked capacity to refuse
dialysis. Dr. Psemar indicated J.M. does not acknowledge the risk of
refusing dialysis. She demonstrated anxiety, depression, and an inability
to problem-solve. Dr. Dealwis testified J.M. did not believe she would
die if not treated, and therefore, was not making a reasoned decision to
choose death over dialysis. They both believed that because she did not
understand the likely consequences of refusing treatment, she lacked
capacity to make decisions about her health. The dissenting psychiatrist,
Dr. Scham, acknowledged that he is not an expert in competency
evaluations and only does five to six of them every year. He said J.M.s
mental status is clear and she has adequate judgment, but he also
acknowledged her views were inconsistent in that she accepted blood
transfusions and resuscitation, but not dialysis. Dr. Scham believed that
J.M. understood she would die without dialysis, yet he also testified
J.M. stated God would save her. When J.M. herself testified, she
asserted that she would not die without dialysis because Jesus would save
her....
A competent patient is able to choose his course of treatment even if his
medical decision may seem irrational or unsupported by medical evidence.
[Footnote: New Jersey courts have ruled that a patient found to be
competent and aware of the consequences of her decision may exercise her
right to refuse treatment for any reason, including when treatment
violates the tenets of her religion. Further, guardians of incompetent
patients must consider the tenets of a patients religion when
determining the proper course of treatment. J.M.s refusal of treatment
was not premised upon an established tenet of her religion precluding
certain medical procedures, as evidenced by her consent to all other
medical treatment and her pastors attempt to convince her to undergo
dialysis. As a result, her belief that God would save her does not
preclude her from being found incompetent, nor does the appointed
guardian need to act on that professed belief.] If a patient is unable to
understand the consequences of the decision, however, that patient is
unable to give informed consent and is therefore incapacitated.
The Court found, by clear and convincing evidence, that J.M. does not
have the capacity to make a decision regarding dialysis. She had no
long-lasting psychiatric disability, but rather demonstrated a lack of
understanding of the high risk of death without dialysis. She refused to
acknowledge the risk inherent in her refusal of treatment and through her
other medical choices had demonstrated an unequivocal desire to
live.
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