The Limits of Law in Regulating Health Care Decisions

The case for legal regulation of biomedical technology used to be easy to argue. A decade ago, it was clear that this technology had a dramatic impact on issues of far-reaching public significance, that many of these issues were not being systematically addressed by anyone, and that others were being considered only by physicians and biological scientists from a very narrow perspective. The argument for systematic law-making in the resolution of these issues was easy and, during the past few years, that argument seems in large part to have prevailed. Congressional establishment of the National Commission for Protection of Human Subjects of Behavioral and Biomedical Research, with its wide-ranging statutory jurisdiction, is one indication of this trend. The California "Natural Death Act" is another. A third indication is the current willingness of judges to enter into previously sacrosanct medical territory, to proclaim principles of "informed consent" for doctor/patient relations or "rights to treatment" for institutionalized mentally ill or retarded persons. There is of course considerable controversy about the substance of these new legal rules. But there seems to be remarkable agreement on one underlying premise-that there should be new rules. Thus, although many doctors may be arguing for their traditional prerogatives to make treatment choices for their patients, few doctors are arguing against clarification of the rules by legislatures or courts. This is the attitude that always underlies calls for some authoritative resolution of disputed matters-for law-making. There are, however, some special dangers in succumbing too readily to this attitude for many disputed issues. In