Cruzan after Dobbs: What Remains of the Constitutional Right to Refuse Treatment?

In 2022, the U.S. Supreme Court removed constitutional protection from the individual's right to end a pregnancy. In Dobbs v. Jackson Women's Health Organization, the Court invalidated previous rulings protecting that right as part of the individual liberty and privacy interests embedded in the U.S. Constitution. Now, many observers are speculating about the fate of other rights founded on those interests. The Dobbs ruling conflicts with the Court's 1990 Cruzan decision restricting the government's power to interfere with personal medical choices. The language and reasoning in Dobbs and Cruzan offer guidance on how the Court might address future cases involving the right to refuse life-sustaining treatment. The decisions also point to policy strategies for preserving that right.

Ourselves, with Dementia

Fear of dementia leads some people to demand an opportunity to choose death over life with the illness. They want the power to make advance euthanasia directives and to refuse hand feeding at some point in the dementia process. But the choices we make in advance aren't always suited to the people we become. Experts and family members say people with dementia often adapt, becoming content with their lives. People should care about their future selves with dementia. Their advance instructions about dementia care should give others freedom to respond to the up-to-date information required for good medical decision-making.

The UN Challenge to Guardianship and Surrogate Decision-Making

In 2006, the United Nations issued the Convention on the Rights of Persons with Disabilities. The Convention, together with an accompanying commentary, urges governments to abandon laws authorizing guardianship and substitute decision-making for people with intellectual disabilities and to replace them with supportive decision-making laws that give all individuals the freedom to make choices reflecting their "will and preferences." Although critics point to ethical and legal problems with this approach, the Convention and commentary offer guidance to clinicians, ethicists, and others involved in evaluating medical decision-making. Whether or not it leads to formal legal action, the Convention rightly urges us to give people with cognitive impairments a greater role in decisions about their lives.

The Limited Value of Dementia-Specific Advance Directives

Many people are worried about developing dementia, fearing the losses and burdens that accompany the condition. Dementia-specific advance directives are intended to address dementia's progressive effects, allowing individuals to express their treatment preferences for different stages of the condition. But enthusiasm for dementia-specific advance directives should be tempered by recognition of the legal, ethical, and practical issues they raise. Dementia-specific advance directives are a simplistic response to a complicated situation. Although they enable people to register their future care preferences, in many cases, those preferences will not, and should not, determine their later care.

A Tangled Web: Deception in Everyday Dementia Care

Care workers and families often engage in deception in everyday interactions with people affected by dementia. While benevolent deception can be justified, there are often more respectful and less risky ways to help people with dementia seeking to make sense of their lives.

Dementia and the Death Penalty

During its 2018-2019 term, the United States Supreme Court considered the constitutionality of executing a prisoner with dementia. In Madison v. Alabama, the Court ruled that, in certain circumstances, executing a prisoner with dementia violates the Eighth Amendment's ban on cruel and unusual punishment. Vernon Madison was sentenced to death for killing a police officer in 1985. After many years on Alabama's death row, he had a series of strokes and was diagnosed with vascular dementia. In 2016, Madison's lawyers unsuccessfully sought a stay of execution, arguing that, in light of his cognitive impairments, imposing the death penalty would violate the Constitution. After Alabama set a 2018 execution date, lawyers returned to the state court, arguing that the finding of competence should be reversed because Madison's cognitive impairments had worsened. When the trial court refused to grant the stay of execution, Madison's lawyers asked the Supreme Court to review the constitutionality of the state court decision.

The Reasonable Person Standard for Research Disclosure: A Reasonable Addition to the Common Rule

The revised Common Rule adopts the reasonable person standard to guide research disclosure. Some members of the research community contend that the standard is confusing and ill-suited to the research oversight system. Yet the revised rule is not as radical as it might seem. During the 1970s, judges started using the standard to evaluate negligence claims brought by injured patients who said doctors had failed to obtain informed consent to the harmful procedures. In its influential Belmont Report, the National Commission recommended application of a "reasonable volunteer standard" to guide IRBs evaluating research disclosures. Evidence also suggests that IRBs often invoke the reasonable person standard in deliberations about consent forms. But past application of the standard has been informal and uneven. Robust application of the reasonable person standard will require researchers and IRBs to learn more about what ordinary people want and need to know about the studies they are invited to join. Input from people with personal experience as study participants could be particularly useful to this effort.

Advance euthanasia directives: a controversial case and its ethical implications

Authorising euthanasia and assisted suicide with advance euthanasia directives (AEDs) is permitted, yet debated, in the Netherlands. We focus on a recent controversial case in which a Dutch woman with Alzheimer's disease was euthanised based on her AED. A Dutch euthanasia review committee found that the physician performing the euthanasia failed to follow due care requirements for euthanasia and assisted suicide. This case is notable because it is the first case to trigger a criminal investigation since the 2002 Dutch euthanasia law was enacted. Thus far, only brief descriptions of the case have been reported in English language journals and media. We provide a detailed description of the case, review the main challenges of preparing and applying AEDs for persons with dementia and briefly assess the adequacy of the current oversight system governing AEDs.

Research Information for Reasonable People

In 2017, federal officials issued a revised version of the Common Rule, the federal regulations that govern much of the human subject research conducted in the United States. Two provisions on information disclosure have reportedly provoked confusion among researchers and people responsible for research oversight. These provisions incorporate the familiar and foundational legal concept known as the reasonable person standard, applying this to research disclosure. Although other, long-standing Common Rule provisions require reasonableness judgments, the new provisions differ in that they require reasonableness to be judged from the ordinary person's perspective instead of the perspective of scientists, clinicians, and other experts generally involved in designing and reviewing human studies.

Preferences for learning different types of genome sequencing results among young breast cancer patients: Role of psychological and clinical factors

The growing importance of genome sequencing means that patients will increasingly face decisions regarding what results they would like to learn. The present study examined psychological and clinical factors that might affect these preferences. 1,080 women diagnosed with breast cancer at age 40 or younger completed an online survey. We assessed their interest in learning various types of genome sequencing results: risk of preventable disease or unpreventable disease, cancer treatment response, uncertain meaning, risk to relatives' health, and ancestry/physical traits. Multivariable logistic regression was used to examine whether being "very" interested in each result type was associated with clinical factors: BRCA1/2 mutation status, prior genetic testing, family history of breast cancer, and psychological factors: cancer recurrence worry, genetic risk worry, future orientation, health information orientation, and genome sequencing knowledge. The proportion of respondents who were very interested in learning each type of result ranged from 16% to 77%. In all multivariable models, those who were very interested in learning a result type had significantly higher knowledge about sequencing benefits, greater genetic risks worry, and stronger health information orientation compared to those with less interest (p-values < .05). Our findings indicate that high interest in return of various types of genome sequencing results was more closely related to psychological factors. Shared decision-making approaches that increase knowledge about genome sequencing and incorporate patient preferences for health information and learning about genetic risks may help support patients' informed choices about learning different types of sequencing results.

Medicare and Advance Planning: The Importance of Context

In January 2016, a long-delayed Medicare change took effect. The Medicare program will now reimburse doctors for time they spend talking with patients about end-of-life care. This is the move that Sarah Palin and other Affordable Care Act critics said would authorize government "death panels" to decide whether older Americans should live or die. Today virtually no one buys into Palin's death panel rhetoric. But many people do think the Medicare change is a big deal. Representative Earl Blumenauer, a Democrat from Oregon who sponsored the original ACA reimbursement proposal, lauded the Medicare provision as "a turning point in end-of-life care." Others are not so sure about that. After all, laws promoting advance care planning have existed for decades. The federal Patient Self-Determination Act of 1990 and the many court decisions and state laws supporting advance care planning have had relatively little impact. Similarly, legal recognition of physician orders for life-sustaining treatment as advance planning instruments have not produced the improvements that were predicted. And from a broad perspective, advance care planning is a small piece of the puzzle. The effort to improve end-of-life care must take into account the limitations of advance decision-making, as well as the overriding importance of the general standard of care for terminally ill patients.

A Deep Dive into Community Engagement

Community engagement offers opportunities to enhance the value of health research. Through engaging with community partners, researchers can pursue projects that produce meaningful benefits for study populations. At the same time, engagement presents challenges for everyone involved. High-quality engagement requires attending to the choice of community partners, the ethics of engagement, education for researchers and community partners, project planning, and the distinct knowledge that experienced research subjects can contribute to engagement activities.

Inclusion, Access, and Civility in Public Bioethics

I could tell many war stories about my experience serving on the President's Council on Bioethics-one of the most controversial national bioethics commissions so far-but I want to focus instead on how the experience influenced my views on bioethics, politics, and the potential contributions of national commissions. The executive order that established the Council directed it to consider policy questions, but it spoke primarily of providing a forum for national discussion, inquiry, and education. In this sense, the Council's mission departed from that of other national bioethics commissions, which have had more direct policy functions. Most bioethics commissions consider a range of ethical positions in their reports, but their primary objective has been to develop consensus recommendations on whatever topic they are addressing. The Council's executive order moved away from the consensus-based policy model and called for deep attention to contested ideas. Although the search for consensus may be the most suitable approach for policy activities, it can lead to a bland and anemic version of bioethics. The Council sought to contribute thick bioethical analysis.

First-in-human HIV-remission studies: reducing and justifying risk

Interest and excitement surround the possibility of developing measures that produce sustained or permanent HIV remission in infected individuals. First-in-human (FIH) trials are one step in exploring this possibility. Initial human trials raise the usual ethical issues associated with human research, and a set of distinct issues. Because the potential direct benefits to FIH trial volunteers will be either small or non-existent, trial risks must be justified by the social value of the information the trials are expected to produce. To minimise and justify risks, researchers must have solid preclinical evidence that FIH trials will be safe and produce information relevant to human health improvements. Researchers must also adopt adequate study safeguards to protect FIH subjects. An ethically defensible study population must be selected as well.

A Tale of Two Disciplines: Law and Bioethics

Fascination with In re Quinlan, the first high-profile right-to-die case in the United States, led the author to law school. By the time she received her law degree, bioethics was emerging as a field of study, and law and bioethics became her field. The mission of legal education is to teach students to "think like a lawyer," which can be a productive way to approach issues in many fields, including bioethics. Legal education can also teach individuals to respect people whose views on bioethics issues differ from their own. This essay describes three areas in which legal training influenced the author's work in bioethics: treatment decisions, research misconduct, and stem cell research.

How, who, and when: preferences for delivery of genome sequencing results among women diagnosed with breast cancer at a young age

Background

The increasing use of genome sequencing with patients raises a critical communication challenge: return of secondary findings. While the issue of what sequencing results should be returned to patients has been examined, much less attention has been paid to developing strategies to return these results in ways that meet patients' needs and preferences. To address this, we investigated delivery preferences (i.e., who, how, when) for individual genome sequencing results among women diagnosed with breast cancer at age 40 or younger.

Methods

We conducted 60 semistructured, in‐person individual interviews to examine preferences for the return of different types of genome sequencing results and the reasons underlying these preferences. Two coders independently coded interview transcripts; analysis was conducted using NVivo 10.

Results

The major findings from the study were that: (1) many participants wanted sequencing results as soon as possible, even at the time of breast cancer diagnosis; (2) participants wanted an opportunity for an in‐person discussion of results; and (3) they put less emphasis on the type of person delivering results than on the knowledge and communicative skills of that person. Participants also emphasized the importance of a results return process tailored to a patient's individual circumstances and one that she has a voice in determining.

Conclusions

A critical goal for future transdisciplinary research including clinicians, patients, and communication researchers may be to develop decision‐making processes to help patients make decisions about how they would like various sequencing results returned.

While the issue of what genome sequencing results should be returned to patients has been examined, much less attention has been paid to developing strategies to return these results in ways that meet patients' needs and preferences. To address this, we investigated delivery preferences (i.e., who, how, when) for individual genome sequencing results among women diagnosed with breast cancer at age 40 or younger. The major findings from the study were that: (1) many participants wanted sequencing results as soon as possible, even at the time of breast cancer diagnosis; (2) participants wanted an opportunity for an in‐person discussion of results; and (3) they put less emphasis on the type of person delivering results than on the knowledge and communicative skills of that person.

Preferences for return of incidental findings from genome sequencing among women diagnosed with breast cancer at a young age

While experts have made recommendations, information is needed regarding what genome sequencing results patients would want returned. We investigated what results women diagnosed with breast cancer at a young age would want returned and why. We conducted 60 semi-structured, in-person individual interviews with women diagnosed with breast cancer at age 40 or younger. We examined interest in six types of incidental findings and reasons for interest or disinterest in each type. Two coders independently coded interview transcripts; analysis was conducted using NVivo 10. Most participants were at least somewhat interested in all six result types, but strongest interest was in actionable results (i.e. variants affecting risk of a preventable or treatable disease and treatment response). Reasons for interest varied between different result types. Some participants were not interested or ambivalent about results not seen as currently actionable. Participants wanted to be able to choose what results are returned. Participants distinguished between types of individual genome sequencing results, with different reasons for wanting different types of information. The findings suggest that a focus on actionable results can be a common ground for all stakeholders in developing a policy for returning individual genome sequencing results.

Personal knowledge and study participation

Scientists in earlier times considered personal research participation an essential component of their work.Exposing themselves to untested interventions was seen as the most ethical way to gauge the human response to those interventions. The practice was also educational, for it generated useful information that helped researchers plan subsequent human studies.Self-experimentation was eventually replaced by more comprehensive ethical codes governing human research.But it is time to bring back the practice of self-experimentation, albeit in modified form. Through serving as a study subject, investigators and other research professionals can obtain valuable information about their work.

Edmund Pellegrino and the art of civilized dialectics

I had the good fortune to work with Edmund Pellegrino from 2005 until 2009, while he was chairman and I was a member of the President's Council on Bioethics. We came from different disciplines--medicine and law--and from different generations. Until that point, our paths had rarely crossed. I am so glad that I finally did have an opportunity to get to know him. Pellegrino contributed a great deal to the council during his time as chairman. I cannot begin to cover all that he brought to the council during his four years of leadership. In this essay, I describe how his views of both public bioethics and clinical ethics shaped his council participation.

Public preferences and the challenge to genetic research policy

Modern genetic research requires scientists to collect, store, and study DNA samples and health information from thousands of people. Longstanding policy allows researchers to use samples and information without a person's informed consent as long as the person's identity is protected. Under existing policy, researchers must neither disclose study results to interested research participants nor compensate people who contribute to genetic research. Research and ethics experts developed these policy approaches without input from the people whose contributions are essential to the genetic research enterprise. A growing body of evidence shows that many research participants and would-be participants disagree with the current policy approaches. For ethical and practical reasons, participants should have a greater role in determining how genetic research is conducted.

Law, ethics, and the patient preference predictor

The Patient Preference Predictor (PPP) is intended to improve treatment decision making for incapacitated patients. The PPP would collect information about the treatment preferences of people with different demographic and other characteristics. It could be used to indicate which treatment option an individual patient would be most likely to prefer, based on data about the preferences of people who resemble the patient. The PPP could be incorporated into existing US law governing treatment for incapacitated patients, although it is unclear whether it would be classified as evidence of a specific patient's preferences or those of a reasonable person sharing certain characteristics with the patient. Ethical concerns about the quality and significance of PPP choices could influence legal decision makers' views of the PPP.

Subversive subjects: rule-breaking and deception in clinical trials

Research subjects do not always conform to research requirements. When their personal interests conflict with the demands of participation, some subjects surreptitiously break the rules. These subjects are subversive--they undermine the research endeavor. In rejecting the restrictions research imposes, subversive subjects diminish the value of research results. From one vantage point, subversive subjects engage in unethical behavior. They create risks to themselves and others; they also disregard ethical responsibilities to adhere to research agreements and tell the truth. At the same time, subversive subjects expose ethical problems in the design and conduct of clinical trials. Features of the research environment create fertile ground for subject subversion. Intensified policing and guidance are two common strategies for reducing subject subversion, but collaborative reforms are more consistent with the partnership model of clinical research.

Taking bioethics personally

This narrative symposium examines the relationship of bioethics practice to personal experiences of illness. A call for stories was developed by Tod Chambers, the symposium editor, and editorial staff and was sent to several commonly used bioethics listservs and posted on the Narrative Inquiry in Bioethics website. The call asked authors to relate a personal story of being ill or caring for a person who is ill, and to describe how this affected how they think about bioethical questions and the practice of medicine. Eighteen individuals were invited to submit full stories based on review of their proposals. Twelve stories are published in this symposium, and six supplemental stories are published online only through Project MUSE. Authors explore themes of vulnerability, suffering, communication, voluntariness, cultural barriers, and flaws in local healthcare systems through stories about their own illnesses or about caring for children, partners, parents and grandparents. Commentary articles by Arthur Frank, Bradley Lewis, and Carol Taylor follow the collection of personal narratives.

Research ethics. Aligning regulations and ethics in human research

New U.S. rules should ensure assessment of subjects' understanding, compensation for injury, and standards of study quality.

Alive and well: the research imperative

Many features of the existing biomedical research enterprise rest on questionable judgments about the value of research. Policymakers and research ethicists make assumptions about research value that aren't necessarily warranted. A more balanced view of research value could contribute to more defensible decisions about research policy and practice.

Building an ethical foundation for first-in-human nanotrials

Novel nanomedical interventions require human testing to evaluate their safety and effectiveness. To establish a proper evidentiary basis for human trials, nanomedical innovations must first be subjected to animal and other laboratory testing. But it is uncertain whether the traditional laboratory approaches to safety evaluation will supply adequate information on nanotechnology risks to humans. This uncertainty, together with other features of nanomedical innovation, heightens the ethical challenges in conducting FIH nanotrials.