Letting Patients Die: Legal and Moral Reflections, 80 Cal. L. Rev. 857 (1992)
Fifty years of medical advances have profoundly challenged some of our most deeply held moral belie~ about life and death. Doctors and hospitals that once would have prolonged life now routinely discontinue life-sustaining treatment. Professor Kadish examines the legal and moral aspects of these decisions. Courts have justified discontinuing treatment on grounds of the patient's right to autonomy. While they have sought to confine their decisions to letting-die situations, the strategy creates an instability, since in principle the right of autonomy extends to choices of suicide, assisted suicide, and active euthanasia. Professor Kadish then considers advance directives and the doctrine courts use when there has been no advance directive, the doctrine of substituted judgment. He argues that advance directives lack the full moral force of contemporary choices and should yield to the current compassionate interests of the patient, as well as to the patient's choice to live even if less than fully competent. Finally, he concludes that courts have gone astray by invoking the principle of autonomy in substituted judgment situations, because autonomy cannot be at issue when the patient has made no choice. Instead, Professor Kadish favors a decision based on the best interests of the patient, taken to mean a decision in conformity with the values and commitments that guided the patient's competent life, and one regardful of the quality of the experiences of the present patient. He rejects a standard that would seek a decision designed to make the patient's life as a whole a better one in any objective sense.