Shifting the Burden of Proof in Right-To-Die Cases

Our legal system includes many...presumptions, or societal defaults : if you do not state a preference, the law presumes a preference for you.For example, if you do not name someone to make decisions for you should you become unable, the law assumes that your spouse will play that role. When we make health care decisions at the end of life, we often are also working in a context of societal defaults. Unfortunately, as our society\u27s needs and our perspectives on health care have changed, we have not always changed the defaults to keep pace. That describes the current situation regarding removal of nutrition and hydration from patients in persistent vegetative states (PVS). At present, the law presumes that patients in PVS do not want life support withdrawn; thus the burden of proof is on those, like the family of Nancy Beth Cruzan, who would have it removed. This assumption is strongly defended by legal scholar John D. Gray: [S]ince our experiences in life teach us that all creatures strive hard to continue life, it should follow that a patient would also want life preserving procedures continued, not discontinued. Thus, in a right to die case involving an incompetent or comatose patient, the court ought to start out with the presumption that the patient would wish to continue, not end, his life. As a result, the burden should be placed on the party seeking to act against this natural assumption. (1990:40) Three recent polls have asked Americans what they would want done for them if they were in a persistent vegetative state. Although opinion-poll results must always be received with caution, the evidence cannot be ignored: most Americans do not want artificial nutrition and hydration under those conditions. In a study reported in the New England Journal of Medicine, 405 primary-care outpatients and 102 members of the general public were asked to choose among 13 specified interventions in four clinical scenarios. When the diagnosis was PVS, 83 percent rejected intravenous fluids, and 85 percent rejected artificial nutrition (Emanuel et al.1991). In a 1990 New York Times poll, 81 percent supported removal of a feeding tube for a person described to fit the profile of Nancy Cruzan, and 85 percent would want removal of a feeding tube if they themselves were in that condition ( Right to Die 1990). And in a 1991 poll conducted by the National Law Journal, 80 percent of respondents said they would want life support discontinued ( Bioethics Debate 1991)