Two-step fantastic: the continuing case of Brother Fox.

This article is a sequel to the note by Richard A. McCormick, S.J., and Robert Veatch on the Eichner case. They commented on the decision of Justice Robert Meade on December 6,1979. That decision was appealed, and on March 27, 1980, the Supreme Court, Nassau County, handed down its opinion. McCormick/Veatch agree with the ruling of the trial court but not with its reasoning. Judge Meade refused to base his ruling on Brother Joseph Charles Fox's right of privacy. He did not see how anyone (courts, physicians, family, guardians) could validly exercise by proxy an incompetent patient's right of bodily self-determination. His ruling that Father Philip K. Eichner be appointed the "committee" (guardian) for Brother Fox for the purpose of ordering the respirator discontinued was based, instead, on the probative value of Brother Fox's voicing his own wishes, while competent, never to be subjected to extraordinary treatments. Thus, even if courts should, in medical decisions such as this, substitute their judgments for that of patients, Judge Meade saw no need to do so in this case. There would have been nothing extraordinary about a recognition in case law of, in effect, a "living will" without statutory legislation. McCormick/Veatch list dire consequences to come from Judge Meade's reasoning. Positively, they appeal to substitute judgments concerning such a patient's "benefit" or "best interests." As to who shall make such a decision, the authors say: the family. "Familial autonomy" and "familial self-determination" should be given the initiative. For family surrogates are "normally in the best position to judge the real interests of the incompetent"; they know his "life style, preferences, and values" (presumably whether or not expressed in anticipatory self-management of that patient's dying). "The family knows those treatments that might be particularly disturbing and those that the patient may have accepted without distress in the past." In passing, I may note this says nothing about the never-competent patient; nor do the facts evident in neonatal practice today support the view that families are usually the best judge concerning the best interest