Coombs on Schiavo

New on SSRN: Mary Coombs, Schiavo: The Road Not Taken, 61 U. Miami L. Rev. ___ (forthcoming 2007). The abstract:

Using the Schiavo case as a springboard, this article explores how a bioethics process could provide, in some situations, a better way of dealing with dilemmas over withdrawal of life-saving medical treatment. It briefly examines the different kinds of processes that health care facilities have to deal with these problems and focuses on a bioethics consultation/mediation, in which a trained person helps the participants - the health care team, the patient to the extent he or she is able to communicate, the proxy, if any, and the family - to reach a decision on what should be done. It recognizes the risks of such a process and calls for a constrained deference, in which the consultant/mediator will seek to ensure an adequate, open discourse and to deflect the participants from any outcomes that are ethically problematic.

It then compares such a process with adjudication, both in terms of process values and likely substantive outcomes. In regard to substance, it distinguishes between those situations in which the patient had provided an advance directive, where his or her wishes should be followed even if the active participants might prefer a different outcome and those where there is no advance directive. In the latter situation, the decision reached by a consensus among the parties should ordinarily be followed, given the values furthered by doing so and the relative lack of certainty regarding what specific outcome the patient would have wanted.