At Law: Gang Aft Agley

Abstract

The amount of law is relatively small which a modern legislature can successfully impose. The reason for this is that unless the enforcement of the law is taken in hand by the citizenry, the officials as such are quite helpless.... For what gives law reality is not that it is commanded by the sovereign but that it brings the organized force of the state to the aid of those citizens who believe in the law. --Walter Lippmann A Preface to Morals In my last contribution to this column (HCR, July-August 2000), I argued that the law of bioethics has repeatedly failed to achieve the hopes cherished for it. I presented evidence, for example, that most doctors breach the duty of informed consent, that advance directives do not direct patients' care, and that repeated legal attempts to increase organ donation have failed to find the success predicted for them. I closed that column by promising to try to explain this chastening experience. It would, of course, take a lifetime of columns to capture all the reasons the law of bioethics has so often disappointed.[1] Here I want to discuss only one, albeit a crucial one: Legal regulation of human behavior is insistently difficult because human behavior and social institutions are bafflingly complex. It is maddeningly hard to mold that behavior and those institutions because they are shaped by many potent forces besides the law and because lawmakers so often cannot accurately identify all those forces and devise reliable methods of altering enough of them in sufficiently precise and predictable ways to achieve the result intended. It is even hard for law to rule in its own house--for example, to shape litigation in useful ways. The law of bioethics illustrates both the general problem (influencing social behavior) and its particular instantiation (influencing legal institutions). Let me once again adduce empirical evidence to show how. Living wills exemplify the first problem. Living wills seemed an obvious solution to the perplexity of making end of life decisions for incompetent patients, but they have betrayed the expectations faithfully nurtured for them. To see why, consider the chain of circumstances necessary for living wills to be well and widely used. First, people must want a living will. Some people say they do not, many of them because they think satisfactory decisions will be made for them without one. Many people believe they want a living will, but very many of these have not signed one even though they know about advance directives. Programs to persuade people to sign living wills have not been conspicuously successful. Is this, perhaps, because people do not actually want them, or do not actually want them enough to overcome ambivalence about them? Second, people must know what treatment they would want should they become incompetent. This requirement has several components. To begin with, people must (a) obtain accurate information about what their choices would be and (b) understand that information. But patients will encounter all the problems acquiring and analyzing information that have become notorious through studies of informed consent. And empirical investigation suggests that doctors are neither anxious to have conversations about living wills nor adept at conducting them.[2] Furthermore, unless people are assisted with exceptional care, they must decipher the advance directive itself. This is no small undertaking. Living wills are often execrably drafted. And even if they were drafted by angels, [i]n the largest study of functional health literacy in the United States.... 42% of ... [English-speaking patients] were unable to comprehend directions for taking medication on an empty stomach, 26% could not understand information on an appointment slip, and 60% could not understand a standard consent form.[3] In addition, people preparing advance directives not only confront all the perplexities of medical decisions; they also face the special problems of making decisions for a hypothetical future. …