Assuring ‘Detached but Passionate Investigation and Decision’: The Role of Guardians Ad Litem in Saikewicz-type Cases

Abstract

AbstractThe author focuses this Article upon the aspect of the Saikewicz decision which determines that the kind of “proxy consent” question involved in that case requires for its decision “the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created.” This aspect of the decision has drawn much criticism from the medical community on the ground that it embroils what doctors believe to be a medical question in the adversarial processes of the court system. The author criticizes the decision from an entirely opposite perspective, arguing that the court's opinion fails in not laying down guidelines that would assure a truly adversary process in Saikewicz-type cases. He agrees with the Saikewicz court that our democratic institutional structure and societal commitment to individual liberty require that persons not competent to consent for themselves to acts of euthanasia be protected by a process of “detached but passionate investigation and decision.” However, he points out that this ideal of the court system was not realized in Saikewicz itself and is not likely to be realized in other cases without reform of some of the procedures currently being employed by the courts in “proxy consent” cases. Drawing on previous articles that he has written in related areas, he then proposes a set of guidelines that he believes not only will remove existing procedural deficiencies, but also may reform some aspects of the existing system that have drawn criticism from the medical community.