For most of the first season of Agents of S.H.I.E.L.D. I wondered what on earth I could write about. Comparatively little of the series raised any interesting legal questions, at least ones that could be answered in any kind of concrete way based on the information presented in the series and the Marvel Cinematic Universe. For example, S.H.I.E.L.D.’s jurisdiction is still kind of an open question, with the agency operating freely in some countries but not others. This suggests some kind of treaty, but there just aren’t enough details to do more than speculate.
And then, finally, near the end of the season I received an email from a reader asking some great questions. Massive spoilers for Agents of S.H.I.E.L.D. below, so if you haven’t seen season one and don’t want to be spoiled, stop reading now.
I’m going to quote at length from Megan’s email, since she did a good job of summarizing the back story leading into her questions:
In the movie Avengers, Agent Coulson is killed by Loki. In the scene where Director Fury finds him bleeding out on the floor, this conversation ensues:
Coulson: “Sorry boss, the god rabbited.”
Fury: “Just stay awake. Eyes on me.”
Coulson: “No, I’m clocking out here.”
Fury: “Not an option.”
Coulson: “It’s okay, boss. This was never gonna work if they didn’t have something to…” *dies*
In the course of the show Agents of SHIELD, we learn that Coulson is still alive and the mystery of how he survived has been a big plot arc. At the beginning, it’s implied that he was only dead for somewhere between 8-40 seconds before he was revived, and that Fury lied to the Avengers about his death in order to motivate them to fight. As the show progresses, however, we learn that Coulson has no memory of his recovery in a hospital – just being on Tahiti with a physical therapist until he was recovered enough to assume active duty again. Then we learn that Coulson was dead for several days before he was revived/resurrected – at which point we see a scene of a rather sinister looking robot doing something to his brain, and Coulson begging for them to just let him die, but his wishes being ignored. From there, we learn that Coulson’s memory was tampered with because it was believed that being brought back to life had left him nearly suicidal, and they were trying to give him a pleasant memory of his recovery to counter any suicidal tendencies.
In recent episodes, we’ve learned that they used an experimental drug (apparently harvested from a Kree) which caused complete cellular regeneration and thus brought Coulson to life. Last night’s episode found us discovering that Coulson knew about this project pre-Avengers and was directly in charge of it. It was designed to save the life of a mortally wounded Avenger, but that while the injuries were repaired, the drugs caused mental degradation and instability, so Coulson recommended that the project be scrapped and never used again. In regards to stopping the mental degradation, he stated that “the only course of action that showed any promise of stemming these side effects was memory replacement – erasing completely the awareness of what they’d been through.” He went so far as to tender his resignation to Fury (whether as the director of this project, or completely from SHIELD is rather vague).
The first question I have is related to the “resurrecting superheroes” posts you’ve done in the past. Coulson was – as far as we’ve been told – an ordinary citizen working for a government agency. Did his speech to Fury in Avengers essentially amount to a DNR request, and what rights did Fury violate by resurrecting Coulson – apparently against his will? I understand life-saving attempts wouldn’t apply in this case, since we do see a medical response team try to bring Coulson back, but given that it was several days after Coulson was declared dead, did Fury have the right to order this procedure done?
Second: If Coulson was brought back and regained enough awareness that he was essentially asking the doctors to “let me die” would they have been obligated to stop the process and allow Coulson to die, or would he have been considered mentally compromised enough to not realize what was happening?
We later learn that Fury considered Coulson an Avenger, at least for purposes of deciding whether to administer the drug. Ultimately, Coulson seems mollified by Fury’s explanation. But the questions remain: was it legal to begin the process in the first place and was it legal to continue the process once Coulson was conscious enough to ask for it to stop?
I. Advance Directives and Do Not Resuscitate Orders
In the question Megan refers to a “DNR request”, which is to say a Do Not Resuscitate request, more properly called a Do Not Resuscitate order or directive. There is a lot of confusion and popular misinformation about DNR orders. A DNR order is a medical order issued by a physician, typically in a case involving a terminally-ill patient. The law governing DNR orders varies from state to state, but in general a properly executed DNR is legally binding.
DNR orders must be contrasted against advance directives and living wills, which are non-binding documents that basically amount to suggestions regarding how a person would like to be cared for if they are not competent to make their own health care decisions. Advance directives can be written or oral, and they will often be respected, but they aren’t legally binding.
So in this case Coulson’s objection to the program would not qualify as a DNR order. At best it could be considered an advance directive that he did not agree with its use and so certainly would not want it to be used on him. But once he was unconscious he was no longer competent. Since his advance directive wasn’t legally binding, whoever held the power of attorney to make healthcare decisions for him (Directory Fury, apparently) was free to ignore it and request use of the drug. The physicians caring for him were likewise free to exercise medical judgment and decide that using the drug was, in fact, medically appropriate despite Coulson’s objections.
As far as Coulson being declared dead goes, death is generally legally defined thus:
An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.
Since the drug worked and the cessation of those functions was clearly not irreversible, Coulson wasn’t legally dead, though he may have been medically dead from the perspective of any doctor who didn’t know about the secret wonder drug.
II. Competency and the Right to Terminate Treatment
Now we get to an even stickier issue. For some reason it was necessary for Coulson to be conscious during part of the procedure. Coulson spent most of that time begging for the procedure to end and to be allowed to die. The torment of that experience is what was replaced with memories of Tahiti.
If a patient wakes up on the operating table and says they’d rather die than continue in such pain, should the doctors honor that request or go on with the procedure? What if the patient had previously stated that they didn’t approve of the procedure, albeit in a non-binding way?
The easy answer is to say that it doesn’t matter because Coulson was still incompetent, either because his mind was still in tatters from his injuries, or because of the trauma of the treatment, or because of the influence of whatever drugs he had been administered. This is somewhat difficult to reconcile with the fact that he was clearly articulating a consistent position on the issue of the use of the drug, but let’s consider the argument anyway.
A common three-part test for determining patient competency is this one:
1. Is the patient aware of his or her needs and alternatives for meeting them?
2. Is the patient able to express a preference regarding the alternatives?
3. Does the patient demonstrate a factual understanding of the risks, benefits, and alternatives of treatment or no treatment?
It isn’t clear from what we see of the operating scene that Coulson understands much more than that he is in pain (either physical or emotional) and wants it to end. It isn’t clear that, in that moment, he has “a factual understanding of the risks, benefits, and alternatives of treatment or no treatment.”
If Coulson was incompetent, then a lot more deference would be given to the state interest in maintaining human life, and the operation could probably proceed legally, if under ethically questionable circumstances. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990).
But if Coulson was competent in that moment, then the doctors had an obligation to terminate treatment because competent adults have the right to refuse unwanted treatment, even if it means dying as a result. Washington v. Glucksberg, 521 U.S. 702 (1997).
Whether Coulson was or wasn’t competent at the time is difficult to say, but that is what the answer hinges on.