The Limits of Law in Regulating Health Care Decisions

Abstract

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. Congres- sional establishment of the National Commission for Pro- tection 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 con- sent" for doctor/patient relations or "rights to treatment" for institutionalized mentally ill or retarded persons.