The various commentaries in this issue’s Case Corner illustrate once again how different perspectives can sometimes lead to very similar conclusions. Coming from different cultural and professional backgrounds, the commentators share with the readers different ways of approaching the case and appeal to considerations that are similar in some respects but dissimilar in others.
One approach described in the commentaries comes from Darwish of Egypt: “In deciding for an incompetent patient, or even for themselves, most members of families appeal to their attendant physicians to decide …” But this is paternalistic deference with a religious flavour: “They think that their physicians better know the governing laws and the Islamic Sharia rules for their case, … and Islamic Sharia in most cases affects and shapes the ethical and legal responses to the ethical challenges of medicine.” This does not mean that the physicians are regarded as religious authorities. There is merely a presumption that they have greater familiarity with the Sharia rules pertaining to cases associated with their medical practice. At the end of the day, people may doubt the reliability of a physician’s verdict on a particular case and consult a religious scholar. But it is interesting to note the concentration of authority that may be vested in physicians in a setting where the patient and the family turn to them not only for medical advice but also for presumptive religious knowledge.
The commentator also observes that Egyptian society is not only paternal-istic but also masculine. Thus, “if the incompetent patient is the husband, the decision can be his brothers’ or the father’s,” rather than that of the wife, [End Page 81] particularly when there are no male children or when male children are still lacking in competence. Where the patient is the wife, the paternalistic authority may not lie solely in the husband or the male children. The bigger family that includes brothers and/or parents could be involved in decision-making.
When treatment options are also determined by the ability to pay — as when fees have to be paid to a private hospital — traditional family structures have to adapt. The commentator tells us that the decision on the care of an incompetent patient could rest on the socially strongest member of the family, who may not necessarily be the husband, the children or the wife.
The commentary by Tan focuses on this question: what should families consider when deciding for the incompetent patient? Tan speaks of two audiences to whom the above question is addressed — the first consists of attending physicians and the second consists of the family. She speaks of a challenge that arises when physicians have to endorse treatment options to families on the strength of bioethical principles and families examine those options on the basis of “grounds that may be unacceptable to the attending physician”. What she thus highlights are the difficulties faced by physicians in trying to explain the situation to patients and their families and trying to understand what those patients and families want to say. Statements like “I do not want to die” are amenable to multiple interpretations and could not be taken at face value. It is the role of the physician, according to Tan, to ask questions that would help to clarify the real meaning of statements made by the patient or members of the family.
One should emphasise also the commentator’s reminder to assess the competence of the family. Competence is usually mentioned in relation to patients since they are the ones who might be weighed down by disease-related mental incapacity. However, it may be equally important to examine the competence of relatives as they could play an equally (if not more) significant role in the decision-making process. A realistic assessment has to take into account the family dynamics, including the specific state of relationships between various members and the incompetent patient. Thus, one has to be in a position to assess whether a particular relationship is characterized by devotion or resentment, or by self-interest or true disinterestedness.
Arima and Nakayama call attention to the Japanese jurisprudence...