CASEYFRANK

Attorney & Counselor

ARTICLES

WHAT DOES "CONSENSUS" MEAN WHEN CHOOSING A PROXY DECISION MAKER FOR MEDICAL TREATMENT?


FIRST: THE PROXY-DECISION STATUTE


1. There is an ambiguous aspect of the Colorado statute authorizing proxy decision-makers for medical treatment. There are no interpretive Colorado court decisions.


2. The proxy-statute applies if there has been no health care agent explicitly appointed by an ill and incapacitated patient, who then needs health care decisions made. The proxy-statute pro-vides a procedure to assemble interested persons, and have to choose a proxy decision maker, who has the authority of a health care agent (with one limitation). The interested persons must choose the decision maker by consensus.


3. If consensus means unanimity, then all of the assembled interested persons must make an identical choice. But if consensus means a bare majority, then just one more than half of the interested persons must agree. Other views interpret consensus to mean something more than a majority, but less than a unanimous agreement.


4. Where there are several candidates to be the proxy, and if there is a good-faith difference of opinion between them, not to mention antagonism, a majority agreement would be easier to achieve, rather than unanimity, on the appointment of one person to be the proxy.


5. Depending upon the interpretation of consensus, in C.R.S. § 15-18.5-103(4)(a), the mission of an ethics consult will thus be more or less difficult. The relevant part of the statute is:


It shall be the responsibility of the interested persons specified in subsection (3) of this section to make reasonable efforts to reach a consensus as to whom among them shall make medical treatment decisions on behalf of the patient . . . If any of the interested per-sons specified in subsection (3) of this section disagrees with the selection or the decision of the proxy decision-maker or, if, after reasonable efforts, the interested persons speci-fied in subsection (3) of this section are unable to reach a consensus as to who should act as the proxy decision-maker, then any of the interested persons specified in subsection (3) of this section may seek guardianship of the patient by initiating guardianship proceed-ings pursuant to part 3 of article 14 of this title (emphasis added).


SECOND: STATUTORY INTERPRETATION


1. Rules of Interpretation: Interpretation of a statute uses a few classic rules: “In enacting a statute, it is presumed that . . . the entire statute is intended to be effective.” C.R.S. § 2-4-201; See also United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152, 1157 (Colo. 2000) (“construe the legislation as a whole and, where possible, give a harmonious effect to each of its parts”). Also, specific provisions prevail over, and are exceptions to, general pro-visions in a statute. C.R.S § 2-4-205.


2. The First Provision for Guardian Is Consistent with Consensus as Mere Majority Vote: The proxy-statute allows “any of the interested persons . . . who disagrees with the selection” of a particular proxy to petition for a guardian. This implies that a proxy would have been first selected — without a dissenter’s consent. If so, then that consensus would have had to have been less than unanimous. Otherwise, there could not have been a proxy selected in the first place.


In this example, if a mere majority constitutes a consensus, there are three interested per-sons, two persons agree on the selection of a proxy, and the third dissents — there is a con-sensus, a proxy is chosen, but the third, dissenting person could petition for a guardian.


3. The Second Provision for Guardian Is Also Consistent with Consensus as Mere Majority Vote: In addition to the dissenter above, “any of the interested persons” can petition for a guardian, when they are “unable to reach a consensus.” The petition for guardianship hap-pens after the selection of a proxy, and this one because there is no consensus to select one in the first place. This second dissent provision — where there is no consensus — would be re-dundant unless there was consensus-by-majority in ¶ 2, above. Thus, based on the rule in ¶ 1, that an “entire statute is intended to be effective,” this interpretation is valid.


In this example, if a majority constitutes a consensus, there are three interested persons, and none agree on the selection of a proxy, there is no consensus — and any person could peti-tion for a guardian.


4. The First Provision for Guardian Is Also Consistent with Consensus as Unanimity: The statute allows “any of the interested persons . . . who disagrees with the selection” of a par-ticular proxy to petition for a guardian. This could simply mean the dissent from a proposed proxy when there was no unanimous agreement.


In this example, if a consensus requires a unanimous vote, there are three interested persons, two persons agree on the selection of a proxy, the third dissents, then there is no consensus — and any person could petition for a guardian.


5. The Second Provision for Guardian Is Not Consistent with Consensus as Unanimity: In addition to the dissenter above, “any of the interested persons” can petition for a guardian, when they are “unable to reach a consensus.” This second dissent provision would be redun-dant if consensus required unanimity, because it is covered in the first provision for dissent in ¶ 4. Thus, based on the rule in ¶ 1, that an “entire statute is intended to be effective,” this in-terpretation is not validated.


6. Deduction as to Statutory Interpretation: A careful reading of the statute is more consis-tent with the interpretation of consensus as meaning a majority vote. It is not completely con-sistent with the interpretation of consensus as meaning a unanimous vote. Pity that the legislature could have used “majority” or “unanimity” to make clear its intent.


THIRD: DICTIONARY DEFINITIONS


1. As to dictionary definitions, there is both a legal one and a contrasting non-legal one.


2. Legal: A strict Black’s Law Dictionary (7th ed. 1999) defines consensus ad idem as “An agreement of parties as to the same thing; a meeting of minds.” Merriam-Webster’s Diction-ary of Law (1996) defines consensus ad idem the same way, as an “agreement with respect to the same thing: meeting of the minds.” Plain “Consensus” is not defined in either source.


3. Non-Legal:


These definitions are looser. Merriam-Webster's Collegiate Dictionary (11th Ed. Online) de-fines it this way: “1 a: general agreement: unanimity <the consensus of their opinion, based on reports…from the border — John Hersey> b: the judgment arrived at by most of those concerned <the consensus was to go ahead>; 2: group solidarity in sentiment and belief.”


Webster’s New World Dictionary (2nd College Ed. 1978) defines it as “an opinion held by all or most; general agreement, esp. in opinion.”


Webster’s New Collegiate Dictionary (1st ed. 1979) states: “A consensus is defined as group solidarity in sentiment and belief.”


Microsoft’s Bookshelf Dictionary (1998) defines it as: “An opinion or position reached by a group as a whole or by majority will . . . General agreement or accord.”


Deduction as to Definitions: The legal definition refers to the achievement of a legally bind-ing agreement or contract, similar to choosing a proxy, but since it is not identical, and the plain word consensus is not defined, this seems indeterminate.


FOURTH: COURT INTERPRETATIONS


1. There are many Colorado cases which contain the word consensus, and none which contain consensus ad idem. Most references are ambiguous, but those which use consensus in a man-ner that can be quantified distribute themselves into two uses.


2. Definable, Identifiable Groups:


a) Contracts: The interpretation of consensus ad idem as requiring unanimity is settled in contract law. Colowyo Coal Co. v. City of Colorado Springs, 879 P.2d 438, 443 (Colo. App. 1994) (“The consensus of both parties is required in order to modify or to supplant a valid contract”); Colfax Envelope Corp. v. Local No. 458, 20 F.3d 750 (7th Cir. 1994) (“no contract has been formed because there is no consensus ad idem — no agreement on the same thing”).


b) Juries: Consensus means unanimous consent in jury deliberations, requiring unanimous agreement. See People v. Marquez, 692 P.2d 1089, 1105 (Colo. 1984) (“Requiring the vote of twelve jurors to convict a defendant does little to insure that his right to a unani-mous verdict is protected unless this prerequisite of jury consensus as to the defendant’s course of action is also required”); Accord Apodaca v. Oregon, 406 U.S. 404 (1972) (“The final explanation is that jury unanimity arose out of the medieval concept of con-sent. Indeed, ‘the word consent (consensus) carried with it the idea of concordia or una-nimity . . .’”).


c) Other Discrete Groups: Where there is a smaller, discrete group, consensus means unanimity. See S.F.E. ex rel. T.I.E., 981 P.2d 642, 645 (Colo. App. 1998) (“the [divorced] parties cannot come to a consensus concerning matters of importance to [the child]”); In re Marriage of Barnes, 907 P.2d 679, 683 (Colo. App. 1995) (“There was, therefore, no consensus reached [between two different state’s courts] as to which was the more ap-propriate forum to adjudicate the custody issue”); Hibbard v. County of Adams, 900 P.2d 1254, 1261 (Colo. App. 1994) (two county attorneys and county’s zoning administrator agreed to demolish a building by reaching a consensus).


d) Deduction as to Defined Groups: When a circumscribed group has a particular task to accomplish, courts appear to define consensus as meaning unanimity. It appears similar enough to the interested persons choosing a proxy decision maker to argue for consensus meaning unanimity.


3. Inchoate Groups: Where there is a larger, often vaguer group reaching consensus, it appears to mean a general agreement or accord, but not unanimity, though there is no precise defini-tion. Here we are dealing with groups that could not even be identified fully, much less could there ever be unanimity as to a decision.


a) Societal consensus: People v. Dunlap, 975 P.2d 723, 735 (Colo. 1999) (“a societal con-sensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense”).


b) View among courts: People v. Eppens, 979 P.2d 14, 21 (Colo. 1999) (“consensus view among courts is that prior consistent statements are admissible for rehabilitative pur-poses”).


c) Medical opinion: Neodata Services v. Industrial Claim Appeals Office, 805 P.2d 1180, 1183 (Colo. App. 1991) (petitioners’ expert witness disagrees, but “the consensus of medical opinion is that claimant should avoid stressful work”).


d) Local governments and citizens: Dill v. Board of County Com’rs of Lincoln County, 928 P.2d 809, 813 (Colo. App. 1996) (“Local governments and their citizens should be encouraged to work toward consensus concerning their solid waste disposal needs”).


e) Law enforcement: Robertson v. City and County of Denver, 874 P.2d 325, 350 (Colo. 1994) (“It is the general consensus of law enforcement officials that the ever-increasing presence of assault-type rifles in the illicit drug trade and in other types of crime places the safety and the very lives of the American public in immediate peril”).


f) Scientific Consensus: Contrast Brooks v. People, 975 P.2d 1105, 1112 (Colo. 1999) (“even if there were a universally accepted theory explaining the canine ability to track scent, such consensus would be of little use in analyzing the evidentiary validity” of a specific dog”); Lindsey v. People, 892 P.2d 281, 289 (Colo. 1995) (“First, we should make clear ‘general acceptance’ does not require unanimity, a consensus of opinion or even majority support by the scientific community”).


g) Deduction as to Inchoate Groups: Where there is a larger, less defined group reaching consensus, it appears to mean general agreement but not unanimity. However, since these groups that could not even be fully identified fully, unanimity would be impossible. It does not seem analogous to the selection of a proxy decision maker.


FIFTH: CONCLUSION


Consensus means different things to different people in different circumstances. It is like “semi-annual” and “bi-annual,” both of which have come to mean either twice a year or every two years, and are thus useless for precise language.


Consensus among interested persons can be interpreted as being either unanimity or a majority. The language of the statute prefers a meaning of mere majority, while courts view consensus among discrete groups as unanimity — analogous to the interested persons.


Consensus as unanimous consent is more difficult to achieve, but would reduce downstream dis-sent if achieved. It is worth striving for, but if there is an irreconcilable group of interested per-sons, it would be fair a majority to prevail.

Frank, Casey. (2009, May 21).