The death of William Schroeder in Louisville, Kentucky, on August 6, 1986, brought to a close a remarkable chapter in public human experimentation. Artificial heart implants represent the most public experiments in the history of the world. The manner in which they are conducted is a matter of utmost public and professional concern, since it graphically portrays the seriousness with which we take our laws and ethical rules regarding the protection of the rights and welfare of human subjects. Unfortunately, the brief history of artificial heart implants is neither a happy nor a proud one. Begun with high hopes and therapeutic intentions with the Barney Clark implant, the permanent procedures rapidly became little more than publicity stunts used to advertise Humana, Inc., a for-profit hospital chain. Indeed, on the night Mr. Schroeder died, Humana Hospital Audubon sent its public relations director to justify the experiment to a national television audience on Nightline, apparently because no physician at the hospital was willing or able to publicly defend the experiment.

A pharmacist may be liable to a patient for negligence in filling a prescription, even if the pharmacist correctly fills the prescription as written by the prescribing physicion. The holding in Riff v. Morgan Pharmacy is that each member of the health care team “has a duty to be, to a limited extent, his brother's keeper.“ The court in Riff boldly and eloquently justifies this position by noting:

Most medical practice in the United Kingdom is carried out within the National Health Service (NHS), which offers a comprehensive service essentially free of charge to all citizens. Courts of law cannot take the availability of free care into account in determining the level of damages to be awarded to the patient—in other words, in assessing the cost of putting right the damage sustained by the patient, it is assumed that the restorative treatment will be obtained privately. Nevertheless, the fact that the patient did not have to pay directly for the treatment in the first place is in itself a disincentive to bringing actions in negligence against a doctor or health authority. As Professor Miller has put it, “Since disposable income is not diminished by paying for medical services patients are less likely to express their unhappiness about unsatisfactory results in a manner that seeks monetary results.”

In Mount Isa Mines Limited v. Pusey, Windeyer, justice of the High Court of Australia, wrote of “[l]aw, marching with medicine but in the rear and limping a little.“ This remark, characterizing the stumbling approach of the law in providing damages for nervous shock occasioned by negligence, may be too kind when applied to the response of family law to the remarkable advances of knowledge and technology affecting human sexuality and conception.

Nowadays, there is a growing sense of urgency and impatience about the response of the law to medical developments. One writer trained both in law and medicine observed from his informed standpoint:

I want to begin by making the fundamental point that the question is not whether decisions to end human lives ought to be made but, rather, who makes these decisions, and on the basis of what principles or values. For the fact is that such decisions are already being made, and inevitably must be made, in modern hospitals.

For almost any life-threatening condition, modern medical technology can now delay the moment of death. Death will often not occur until and unless the decision has been made to withhold or withdraw life-sustaining treatment. In other words, when and how a patient dies is increasingly the outcome of a deliberate human decision. Such decisions—not to resuscitate a terminally ill patient, not to continue to sustain the life of a permanently comatose patient. or to withhold antibiotics from the deaf and blind octogenarian—are all instances of the intentional termination of life and, if done for the patient's sake, are cases of passive euthanasia.

Jeremy Bentham, the founding father of utilitarianism, would have been delighted by technology assessment. Contemporary health policy planners are, unwittingly, aping the great man's felicific calculus, as they attempt to discern the efficacy and safety of magnetic resonance imaging or cardiac bypass surgery or extracorporeal shockwave lithotripsy. They try to design methods to calculate the effects of these technologies on mortality and morbidity and to compare the costs of one to the costs of alternatives. In recent years, the methods of technology assessment have been refined, but they remain, in essence, a copy of Bentham's proposal to plan and effect a rational course of action and to create a rational world.

The great philosopher and social reformer is, of course, still with us in a dessicated form. He bequeathed his body to the fellows of University College, London, and to this day his mummified figure is encased in a glass box, sitting in his favorite chair, dressed in his own clothes, his waxen face peering out with a bemused smile.

It is often said that all human life, irrespective of its quality or kind, is equally valuable and that our life-and-death decisions for seriously ill or handicapped infants must not be based on the quality or kind of life in question. As the Protestant theologian Paul Ramsey has put it:

The view that all human life—irrespective of its quality or kind—has equal worth may well be the simplest answer to the difficult issues raised about the treatment of infants born seriously ill or with major handicaps; but there are two questions that need to be asked about this simple answer.

Canadian mental health law has traditionally held many themes in common with the mental health law of other Commonwealth countries such as Britain, Australia, and New Zealand. Until recently, this body of law bore only a passing resemblance to the system of mental health law that has emerged in the United States.

The existence of an entrenched Bill of Rights in the United States has meant that many major issues relating to the rights of mental health patients have been dealt with as constitutional matters of great import. Consequently, the 1960s and 1970s witnessed the burgeoning of an exciting body of case law establishing a number of critical rights for a constituency that had hitherto been powerless and tragically neglected. While many of the rights established in the so-called landmark cases were subsequently limited in their scope or were just not affirmed by the appellate courts, the widespread use of constitutional challenges by mental health advocates wrought wholesale changes in both federal and state legislation and permanently altered the balance of power between mental health professionals and their patients.

What has happened to death? Why is this subject—virtually taboo in social and even in medical conversations a few decades ago—now so much a matter of debate in public policy settings, especially the courts? Four factors are primarily responsible, in my view. The first two—changes in the locale of death and development of ever more sophisticated forms of life-support—are by now familiar. Of growing significance are two further factors: increased fear of liability and the polarization of decisions about life-support as those decisions get swept up (at least in the United States) in the ferocious battles between freedom-of-choice and right-to-life supporters.

This paper attempts to analyze these four factors and, I hope, to uncover some of the confusion they have produced. I will then argue that despite consistent judicial endorsement of the right of competent adults to decide what medical care they wish to receive—even if they decide to forgo life-sustaining treatment, that is, to die—legal (like medical) attitudes are in fact ambivalent.

The question in my title—a deliberate inversion of Kuhse and Singer's now-famous question, “Should the baby live?”—is one that is being asked more and more frequently. As Gerald Gruman has observed:

The medical care needs of aged persons, and how we, as individuals and societies, will fulfill these needs in an era of a perceived scarcity of medical resources, are a frequent topic of discussion today. The “scarcity” of medical resources is frequently a given in discussions of allocation priorities.

By now nearly everyone knows about the liability crisis. Municipalities, doctors, businesses, and others are paying soaring premiums for their liability insurance. The unlucky ones cannot find coverage at any price. The result is that services are becoming increasingly scarce and expensive. Curiously, the causes sound even more familiar. A new booklet being circulated by the Insurance Information Institute puts them succintly: “While our judicial system is basically a good one, it has been handicapped by unnecessary lawsuits, … exorbitant awards, and unpredictable results.”

Thus, the liability crisis is seen as a lawsuit crisis. The press and industry lobbyists overflow with stories of frivolous lawsuits, out-of-control damage awards, and a nation turned litigious. Accordingly, state legislatures around the country are preparing to solve the problem by modifying the laws that permit injured plaintiffs to seek compensation for their injuries through the courts.

If the lawsuit crisis exists, serious evidence of it should not be too difficult to find. in fact, the more awful the problem, the more plentiful and glaring should be the evidence. I have begun such an inquiry, but so far the hard evidence has been, to put it mildly, elusive.

The largest single group of hospitals in the country is composed of private nonprofit hospitals, which are exempt from taxation under the Internal Revenue Code. The second largest group of hospitals consists of for-profit hospital corporations. The third and fourth largest groups are, respectively, municipal hospitals and state and federal specialty hospitals, such as mental health facilities and public health hospitals.

Although the idea of hospitals engaging in business activities used to arouse scorn, the concept has now gained acceptance. This change began in the late 196Os, when the enactment of the Medicare and Medicaid programs forced hospitals to become more so phisticated in handling reimbursement issues, certification-of-need, unrelated business income, and productivity.

By 1981, the percentage of hospital charges reimbursed by the Medicare system had declined to 68.7 percent, from its 1974 level of 75.4 percent. In 1982, with the signing of the Tax Equity and Fiscal Responsibility Art (TEFRA), hospitals were essentially told that they must find their own solution to the problem of inadequate funding.

By now nearly everyone knows about the liability crisis. Municipalities, doctors, businesses, and others are paying soaring premiums for their liability insurance. The unlucky ones cannot find coverage at any price. The result is that services are becoming increasingly scarce and expensive. Curiously, the causes sound even more familiar. A new booklet being circulated by the Insurance Information Institute puts them succintly: “While our judicial system is basically a good one, it has been handicapped by unnecessary lawsuits, … exorbitant awards, and unpredictable results.”

Thus, the liability crisis is seen as a lawsuit crisis. The press and industry lobbyists overflow with stories of frivolous lawsuits, out-of-control damage awards, and a nation turned litigious. Accordingly, state legislatures around the country are preparing to solve the problem by modifying the laws that permit injured plaintiffs to seek compensation for their injuries through the courts.

If the lawsuit crisis exists, serious evidence of it should not be too difficult to find. in fact, the more awful the problem, the more plentiful and glaring should be the evidence. I have begun such an inquiry, but so far the hard evidence has been, to put it mildly, elusive.