If more than one person has an influence on treatment decisions, a meeting of all interested parties may be helpful, especially to discuss the patient`s condition, prognosis, and available treatment options. This meeting may have to take place several times, especially if there are dramatic changes in the patient`s course or complications.54 This chapter deals with the most notorious and controversial aspect of Marxist legal theory: the continuing hostility that Marxists have shown to the law. Two closely related claims have been made by Marxists. First, it was predicted that there would be no law in a communist society. The second argument against the necessity of law goes even further: not only will law disappear under communism, but it is also argued that legal systems are the deepest evils of modern social formations and that the absence of law will be a key feature of a truly free society. Before explaining and defending these bold claims, the chapter examines a preliminary attack by Marxists on the opposing view that the law is necessary for human civilization. This orthodoxy of modern political theory is called “fetishism of law” by Marxists. This means that it is a false assumption that leads to a distorted understanding of the world. After examining how this misconception has become so widespread and why it is false, the chapter turns to the arguments that prove the thesis that the law is useless and that it will disappear in a communist society.
Jurisdiction is a legal term for people who “possess sufficient capacity. possession of the necessary physical or legal qualifications” to participate in a particular business.2(p. 257) Unfortunately, this definition is a broad term that encompasses many legally recognized activities, such as the ability to enter into a contract, prepare a will, undergo a trial, make medical decisions, etc. The definition therefore needs to be clarified according to the issue. Simply put, jurisdiction refers to the mental and cognitive capacities required to rationally perform a legally recognized act.3 The determination of incapacity is a judicial decision, i.e. decided by the court. A person found by the court to be incompetent is called de jure incompetent. After determining that the legally incapable person cannot make prudent decisions in his or her own best interests, the court appoints a guardian to make decisions on behalf of the person.4,5 The physician should speak as explicitly as possible about the patient`s condition and prognosis. Treatment options should be presented to surrogates clearly and without the use of medical jargon, along with the possible benefits, risks and outcomes. When discussing specific treatment approaches that should be done with the surrogate(s), avoid vague requests such as “Do you want us to do everything we can?” Such investigations are likely to confuse the surrogate about what “everything” entails.67 In addition, surrogates may fear or wonder if the patient is experiencing pain or discomfort, or will be abandoned by the physician if there is no positive response. Regardless of the choices made, surrogates must ensure that pain and discomfort will be treated appropriately.
Surrogates may need to be asked to make treatment decisions based on what they think the patient would prefer (substitute judgment) versus what they would prefer for themselves (best interests standard). Medical records relate to past performance, but rarely include a “prognosis” (i.e., a reasoned prediction about a medical condition, such as how a scar will heal or when a disability will end). A physician must recognize that the ability to make informed decisions is task-specific. Therefore, it is conceivable that a patient may not be able to make informed medical decisions, but may choose a substitute decision-maker. Therefore, the request for a representative should be addressed to the patient. If the patient is unable to express a preference for a substitute decision-maker or cannot choose or refuse a power of attorney, the physician should limit herself to available surrogates. Some states require that family members be allowed to make decisions on behalf of the patient. In other jurisdictions, a formal application to a court for a declaration of incapacity and the appointment of a guardian acting on behalf of the patient is required. Still other jurisdictions may require a committee of physicians, hospital administrators and spouses or other family members to make decisions about the treatment of a patient who is unable to do so. Consulting with competent legal counsel in your own jurisdiction can be particularly helpful in clarifying which of these rules applies.
These reports are called “forensic reports,” and the final report is often referred to as a “prognosis report” to distinguish it from previous reports. A prognosis report may include: Often, medical decisions are made on behalf of the patient with a disability by the family, even if the family does not have the legal authority to do so.53 Family members may be in the best position to make these decisions because they are likely to know the patient`s wishes and values and, Hopefully, to have the patient`s best interests in mind. It is important to remember that a family can be made up of people outside of traditional family definitions, such as a life partner, a homosexual life partner, a friend, a roommate.
