Death - May a Guardian End a Ward's Life Support

Death - May a Guardian End a Ward's Life Support? (#2) (2002-3)

YouKnowItAll.com

©A.Hawkins

Suitability

No special expertise is required. However, some of the concepts, facts and issues may be emotionally difficult.

The CLE Process

1. Study this text.

2. When you finish this text, go to www.YouKnowItAll.com to observe the discussion. There, you may choose to ask questions or make comments, or you may choose to just observe any discussion posted by others.

3. Keep track of your actual study hours and dates. After you complete your study, you certify your actual study hours at www.YouKnowItAll.com and you choose to whether to pay by check or credit card.

4. YouKnowItAll.com provides a certificate of your attendance with the course name, course number, and the CLE credit hours you earned. It appears on your computer screen after you certify your hours and pay.

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The Teacher’s Comment on Our Life and Death Courses

I did not set out to find topics that are as profound as life and death. These topics found me. In 2001, two state Supreme Courts issued major opinions. One was on a dispute over custody of frozen “preembryos” or “test tube babies” that arose when couples divorced before completing in vitro fertilization. The other involved a dispute over a guardian’s power to stop life support of a ward who has only slight cognitive brain function. In 2002, Ted Williams died and his body was preserved for “reanimation” as a living human.

Our courses cover:

• life before life (frozen test tube babies that have not been implanted in the womb);

• life after death (a frozen corpse that awaits “reanimation”); and

• death (removing artificial “life” support for a person with slight cognitive function).

Each topic is interesting in itself, but much more interesting when studied as a group with the concepts compared. For example, compare:

(1) a fertilized human egg frozen for later use to create a baby

with

(2) an 85 year old brain frozen to grow a new body for the brain;

or compare

(1) a person with slight cognitive brain function kept on life support

with

(2) a brain that is frozen for use when a body can be regrown.

The issues are profound. What is life? What is death? What is human life? As technology makes some amazing techniques routine and gives hope for other amazing techniques, courts decide the meaning of life and death. Lawyers represent people who face these issues.

Are lawyers ready for these issues? The cases show that, on both substantive and procedural levels, courts are not ready. Courts don’t know the answers, yet they take years to decide what to do with a test tube baby, a corpse, or a person on life support.

Have you considered whether a frozen “test tube baby” or a frozen corpse which awaits new life is a person or property? Does someone own the “baby” or the corpse? Does the property division upon divorce divide the “babies” in the freezer, or is it the child custody provision that controls? If the “parent” dies, does the residuary clause of the will bequeath the frozen “test tube babies” or does the guardianship appointment give the guardian control over implanting them? If the “frozen test tube babies” are property, may creditors attach them? If they are not property, are they people who have a right to life and a right to a lawyer? If they are “killed,” is it murder? May test tube babies be given away? If they are not property or people, what are they?

When a person no longer has the ability to think, is the “person” still a person and human being? Is the person “alive?” At what point does the law allow, or require, removal of life support? When does a “person” become a “corpse?” May a guardian decide whether to keep a ward on life support or end life support and allow the ward to be declared dead?

Traditionally the decedent’s body was disposed of respectfully by one of many accepted methods. It was not preserved for later use. It was not an asset to be sold. It is no longer simple. Is a corpse property, a human being, or something else? Does a corpse pass as part of the residue of an estate? Can a Will control the disposition of the corpse? Bodies and body parts may be donated for use by others. Today, Ted Williams’s body is preserved for Ted’s personal reuse. You might say that Ted made an anatomical gift of his body to himself. Wow! How the world changes. Is Ted’s corpse property? Is it human? What is it? One of Ted’s daughters said that the plan was to sell Ted’s DNA for use in cloning humans. If that sounds unbelievable, consider that Texas A&M cloned a cat. Perhaps the future will include freezing a corpse, harvesting the DNA to create test tube babies which grow old and are on life support, removing the life support, and freezing the corpse. Perhaps “from dust to dust” will be replaced with “from freezer to freezer.”

Profound issues of life and death are covered by these courses. Lawyers face them with increasing frequency. We hope that this cluster of courses provides useful and interesting insights for you.

This comment is repeated in each life and death course, so you may skip it if you take more than one course.

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This course

Some people have mental deterioration that leaves them in a permanent vegetative state Some have somewhat less mental deterioration and are left in a condition just above a vegetative state. This topic is on American law in the second category of cases. There is still some level of mental awareness, but very little. A feeding tube is required for food and water. This course looks at the American state Supreme Court cases that decide whether a guardian[1] for such an individual may remove a ward’s feeding tube.

This is a courses in two parts. It is in two parts for a simple reason. If it was in one course, it would be too long. Each part covers two cases. Together, they cover all four of the opinions American state supreme courts[2] on the topic. Very little has been omitted because almost all of the opinions are interesting. The facts are important, so they are included in full.

Part #1 covers Conroy and Martin, decided by the New Jersey and Michigan supreme courts in 1985 and 1995.

Part #2 contains Edna M. F., a 1997 Wisconsin Supreme Court case and Wendland, the California Supreme Court case decided in August 2001 which inspired this course. The judges who decided these cases are wordy. They seem determined to appear wise, thoughtful, careful, and caring. They obviously expect these opinions to be read and discussed. Some courts produced multiple opinions. These courts are creating the law as they go along. They see that as their duty. By your study, you may question whether traditional courts are suited to play a role in this kind of case.

The facts and law in the cases in this course raise the issue of what life is, and when it ends. but the courts do not address these fundamental issues. As you review the facts, consider what you think is required to say that a mechanically functioning human body contains human life. Is mental function required? If so, how much and what kind? If not, what is required, in your opinion? Do others agree? Is there a consensus? Is there an accepted cultural norm? Is “human life” a body, a mind, both body and mind, or either body or mind? Medical technology is raising issues that used to be academic. They are not academic any more. The courts do not discuss these concepts in these cases. Is it because they don’t know what to say, or because they didn’t recognize these issues?

Life and death courses raise numerous difficult factual and legal matters. You will have feelings as well as thoughts. In addition to studying as a lawyer, you may also consider what you would want for yourself, if you were the ward or if you were the ward’s guardian, spouse, child, friend, partner, or family. These issues are personal and difficult.

In your opinion, how long is reasonable time for a court to decide the question, “should the ward’s feeding tube be removed?” Is one day reasonable? Is one week? Is one year? No case was decided within a year. That is the same pattern as in the preembryo custody cases. Courts take years to decide these cases of life and death. People die. Preembryos die. Bodies cease to function. Courts ponder ponderously.

A Comment and Prediction by the Teacher

The cases in this course suggest three critically important issues that I have never seen discussed elsewhere. They are not mentioned by these courts. It is unlikely that the judges thought of them. Sooner or later, someone will think of them. You will be prepared.

First, consider the factual situation of a person who dies after the feeding tube is removed and would not have died otherwise.

Second, mix in a legal conclusion that the feeding tube should not have been removed.

Yikes!

The consequence has civil and criminal legal implications.

Was it murder? Maybe so. If not murder, maybe it was another crime against the person. Is the person who removed the tube vulnerable? Sure. Is the person who ordered the removal vulnerable? Sure. Are you vulnerable? Maybe. The person who “commits the murder” is at risk. That might be a medical professional. There might be more than one involved. The one who ordered removal is also at risk. Consider the result of hiring someone to commit a murder. Both the person buying the service, and the murder service provider are subject to criminal penalties. The belief of the killer that the victim should die is not a great defense to a murder charge. What about the risk to those who advise, conspire, aid, abet, and facilitate? It seems impossible to rule out a criminal charge if the advice or other role is substantial. It may be best for a lawyer to be very cautious about their words and representation. Imagine the jury listening to the defendant saying, “my lawyer told me that it was ok to remove the feeding tube and let George die” or “George’s lawyer told me that it to remove the feeding tube and let George die.”

A slayer’s rule issue is present. If the death was caused by a beneficiary, does that beneficiary lose the right to inherit, receive insurance proceeds, or receive other property as a result of the death. This may get sticky. It is a fight between beneficiaries. Feelings may be intense. Imagine a subsequent spouse causing removal of a feeding tube, and the children from a prior marriage seeking to disqualify her as a beneficiary. I expect this issue to be litigated with some frequency when lawyers and laymen realize the implications.

A tort claim is possible. Is wrongful removal of the feeding tube a wrongful death? Will the children in the prior fact situation also sue for all of the spouse’s money? Will they sue for the money of the lawyer who said “go ahead” or the doctor who removed the tube?

I think that the consequences are substantial. All of this is predicated on a removal that is wrongful. Study of these cases will tell you whether that is a risk. However, being right isn’t enough. If you have been charged with murder and acquitted, sued and successfully defended, or charged as a slayer and shown that the killing was not wrongful and that the slayer’s rule does not cause forfeiture, you will realize that the process that you went through was not as much fun as playing golf, but that it cost more than green fees. Even if you are right, the process is horrible.

Comments About the Course Material

This course is a case study in which the cases are presented case by case, rather than issue by issue. In the main text comments by the author are in italics with a wider margin than the quotations from the opinions. Other comments are in footnotes. Quoted court opinions are indented. Cues and comments by the author of this text are included before the text to which they relate. Rhetorical questions are incorporated to stimulate your thoughts.

There are two important terms. “Cognition” is thought. Reflex is not thought. Thoughtful movements indicate cognition. Breathing may be a reflexive response. Eye movements may be random. Intentional winking, when a person is asked to wink, requires cognition. Persistent, or permanent, vegetative state basically means there is no evidence of cognition. The concurring opinion of Justice Bablitch includes a detailed definition and discussion. Justice Bablitch notes that a “persistent vegetative state” is a diagnosis and “permanent vegetative state” is a prognosis, i.e., an irreversible persistent vegetative state.

Table of Contents

Course #1

In the Matter of Claire Conroy 486 A.2d 1209, 48 A.L.R.4th 1, 53 USLW 2372 (New Jersey 1985)

In re Michael Martin 538 N.W.2d 399 450 Mich. 204, 64 USLW 2156, 7 NDLR P 165 (Mich. 1995)

Course #2

In the Matter of the Guardianship and Protective Placement of Edna M.F. 563 N.W.2d 485 (Wis. 1997)

Conservatorship of the Person of Robert Wendland (August 9, Cal. 2001)

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In the Matter of the Guardianship and Protective Placement of Edna M.F.[3] 563 N.W.2d 485 (Wis. 1997)[4]

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Death - May a Guardian End a Ward's Life Support? (#2) (2002-3)

Don’t Ask, Don’t Tell, Just Remove the Tube

Edna’s medical condition is discussed in the concurrences which are must reading. This is a “pass the buck” case in which the court expresses its opinion, avoids responsibility, and suggests that the guardian can try again without asking the court.

Edna Timeline

1988 Permanent feeding tube is surgically implanted.

1994 Ethics Committee Approves removal of feeding tube.

1994 1994 Statement, Medical Aspects of the Persistent Vegetative State was published by the Multi-Society Task Force on Persistent Vegetative State,

1995 Petition filed in trial court.

1997 Opinion issued by Wisconsin Supreme Court[5]

“¶1 DONALD W. STEINMETZ, Judge.

“Betty Spahn (Spahn) seeks review of a decision by the Circuit Court for Wood County, Judge Dennis D. Conway, denying her request to withdraw artificial nutrition from her sister, Edna M.F. The court held that it was without authority to grant Spahn's request because Edna is not in a persistent vegetative state. This case presents this court with two issues:

“¶2 1 Whether the guardian of an incompetent person who has not executed an advance directive and is not in a persistent vegetative state has the authority to direct withdrawal of life sustaining medical treatment from the incompetent person; and

“¶3 2) Whether in this case, notwithstanding the fact that she is not in a persistent vegetative state, there is a clear statement evidenced in the record of Edna's desire to die rather than have extreme measures applied to sustain her life under circumstances such as these.

“¶4 Relying on this court's previous decision in In re Guardianship of L.W.[6] we hold that a guardian may only direct the withdrawal of life-sustaining medical treatment, including nutrition and hydration, if the incompetent ward is in a persistent vegetative state and the decision to withdraw is in the best interests of the ward. We further hold that in this case, where the only indication of Edna's desires was made at least 30 years ago and under different circumstances, there is not a clear statement of intent such that Edna's guardian may authorize the withholding of her nutrition.

“¶5 Edna M.F. is a 71-year old woman who has been diagnosed with dementia of the Alzheimer's type. She is bedridden, but her doctors have indicated that she responds to stimulation from voice and movement. She also appears alert at times, with her eyes open, and she responds to mildly noxious stimuli. 1[7] According to these doctors, her condition does not meet the definition[8] of a persistent vegetative state. In 1988, a permanent feeding tube was surgically inserted in Edna's body. Edna currently breathes without a respirator, but she continues to receive artificial nutrition and hydration. Edna's condition is not likely to improve.

“¶6 Edna's sister and court-appointed guardian, Betty Spahn, seeks permission to direct the withholding of Edna's nutrition, claiming that her sister would not want to live in this condition. However, the only testimony presented at trial regarding Edna's views on the use of life-sustaining medical treatment involves a statement made in 1966 or 1967. At that time, Spahn and Edna were having a conversation about their mother, who was recovering from depression, and Spahn's mother-in-law, who was dying of cancer. Spahn testified that during this conversation, Edna said to her: "I would rather die of cancer than lose my mind." Spahn further testified that this was the only time that she and Edna discussed the subject and that Edna never said anything specifically about withholding or withdrawing life-sustaining medical treatment.

One relative did not sign a consent. That is not the same as disagreeing. No one affirmatively disagreed.

“¶7 In October of 1994, the Ethics Committee at the Marshfield Nursing and Rehabilitation, the facility where Edna lives, met to discuss the issue of withholding artificial nutrition from Edna. The committee approved the withholding of the nutrition if no family member objected. However, one of Edna's nieces refused to sign a statement approving the withdrawal of nutrition.

Since no one opposed removal, the court appointed an attorney to argue against removal.

“¶8 On January 12, 1995, Spahn filed a petition in Wood County Circuit Court as guardian of an incompetent person, Edna M.F., asking the court to issue an order confirming Spahn's decision to withhold nutrition from Edna. On January 13, 1995, the court appointed Mark Wittman (Wittman) as the guardian ad litem. The court denied Spahn's petition. The case is now before this court on a petition to bypass the court of appeals. However, because both Spahn and Wittman are arguing to withhold nutrition, this court has appointed Attorney Howard Eisenberg as respondent-designate to argue for sustaining the life of Edna M.F.

“¶9 The issue of the right to terminate life-sustaining medical treatment first came to the national forefront in the controversial case In re Quinlan.[9] In Quinlan, Joseph Quinlan petitioned the court to be appointed guardian of his 21-year old daughter, Karen. Karen was in a chronic persistent vegetative state 2[10] and her father sought the express power to authorize "the discontinuance of all extraordinary medical procedures now allegedly sustaining Karen's vital processes and hence her life...."[11] Because Karen existed in a persistent vegetative state, and there was no hope of her ever recovering from this state, the court granted Joseph Quinlan's requests.[12]

“¶10 Fourteen years later, the United States Supreme Court considered whether the state of Missouri could require clear and convincing evidence of an incompetent's wishes before authorizing the withdrawal of life-sustaining medical treatment, including nutrition and hydration, when the incompetent is in a persistent vegetative state. 3[13] Cruzan v. Director, Missouri Department of Health[14] In making its decision, the Court determined that the states have an interest in protecting the lives of their citizens and that that interest is demonstrated, among other ways, "by treating homicide as a serious crime."[15] On the other hand, the Court notes that "[i]t cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment."[16] The Court concludes that the rights of the state and the individual must be balanced: "we think a State may properly decline to make judgments about the 'quality' of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual."[17]

“¶11 The Court upheld the decision of the Missouri Supreme Court to require that a guardian meet a "clear and convincing" standard before terminating an incompetent's life-sustaining medical treatment, including artificial nutrition and hydration. 4[18] The Court explained that these life-and-death decisions have great consequences, and that an erroneous decision to terminate cannot be remedied:

An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw of life-sustaining treatment, however, is not susceptible to correction.[19]

“¶12 Two years after the Cruzan decision was rendered, this court was faced with a similar case, In re Guardianship of L.W..[20] In L.W., this court considered the issue of whether an incompetent individual in a persistent vegetative state has the right to refuse life-sustaining medical treatment, including nutrition and hydration. The court further considered whether a court-appointed guardian may exercise that right on behalf of the incompetent patient. This court began its analysis of the situation with an exploration of the possible constitutional rights implicated by these circumstances, and concluded "that an individual's right to refuse unwanted medical treatment emanates from the common law right of self-determination and informed consent, the personal liberties protected by the Fourteenth Amendment, and from the guarantee of liberty in Article I, section I of the Wisconsin Constitution."[21]

“¶13 This court further concluded that the right to refuse unwanted treatment applies to both competent and incompetent individuals, and that the right of the incompetent to refuse may be exercised by his or her guardian.[22] The court in L.W. then faced the choice of what standard the guardian should apply in determining whether to continue life-sustaining medical treatment. The guardian argued for a subjective test considering the ward's past values, wishes, and beliefs (the "substituted judgment" standard), and the guardian ad litem argued in favor of the standard upheld in Cruzan requiring "clear and convincing evidence" of the ward's desires. Noting that this court has rejected the substituted judgment standard in the past 5[23] and that the clear and convincing evidence standard would be too strict, this court concluded that an objective "best interests" standard was the appropriate standard to apply when deciding whether to withdraw life-sustaining medical treatment from an incompetent ward in a persistent vegetative state.[24] The only thing that matters in the decision-making process is what would be in the ward's best interests.[25] Of course, the court noted, if the wishes of the ward are clearly evidenced, then it is in the best interests of the ward to have his or her wishes honored.[26]

“¶14 In sum, this court concluded in L.W. "that an incompetent individual in a persistent vegetative state has a constitutionally protected right to refuse unwanted medical treatment, including artificial nutrition and hydration," and that a guardian may consent to withholding or withdrawal of such treatment without prior approval of the courts if to do so is in the "best interests" of the ward.[27] However, this court stressed the fact that the opinion in L.W. "is limited in scope to persons in a persistent vegetative state."[28]

“¶15 Spahn asks this court to extend L.W. beyond its current scope to include incompetent wards who are not in a persistent vegetative state. Spahn notes that in L.W., this court concluded that the right to refuse unwanted medical treatment applies to competent and incompetent people alike, even if there has been no advance directive on the part of the incompetent ward.

“¶16 In the case In re Guardianship of Eberhardy,[29] this court was faced with the request to authorize a guardian of an incompetent to consent to the sterilization of the incompetent, a mentally disabled woman. The guardian argued that since the competent person has the right to sterilization, that right should not be withheld from the incompetent. This court explained in Eberhardy that even though all citizens have the same constitutional rights, the United States Supreme Court has recognized that "the uninhibited exercise of those rights may be hedged about with restrictions that reflect the public policy of protecting persons of a distinct class."[30] For example, this court notes that the Supreme Court has recognized that the decision by a minor to have an abortion could be circumscribed by action requiring a showing of maturity or "best interests" to make a decision without parental involvement.[31] Additionally, a state may require a physician to notify a minor's parents before agreeing to perform an abortion.[32]

“¶17 The Eberhardy court proceeded to explain that the mentally disabled are a similar class to minors in that they are also subject to "special protections of the state" because many mentally disabled adults are "not competent to exercise a free choice."[33] The court explained that "[w]hile the Constitution would generally mandate a free choice for sui juris adults, a free choice is an empty option for those who cannot exercise it."[34]

“¶18 This brings us to the situation at hand--whether this court should allow surrogate decision makers to decide to withhold or withdraw life-sustaining medical treatment from an incompetent adult who is not in a persistent vegetative state. This court in Eberhardy said that for the purposes of sterilization, incompetent people are to be considered "a distinct class to whom the state owes a special concern."[35] So, although incompetent adults have the same constitutional rights as competent adults, they do not have the same ability to exercise those rights. Someone must instead act in the best interests of that person to make a decision regarding whether to withhold or withdraw life-sustaining treatment. However, if that person is not in a persistent vegetative state, this court has determined that, as a matter of law, it is not in the best interests of the ward to withdraw life-sustaining treatment, including a feeding tube, unless the ward has executed an advance directive or other statement clearly indicating his or her desires.

Is it logical to say that if a person is not in a vegetative state, they therefore feel pain? No. Perhaps they can, perhaps not. The courts statement is unsupported by authority or logic. Could Edna’s pain, if any, be alleviated? If a directive of a person whose pain can’t be alleviated will not be honored, are the statements of the courts which recommend directives misleading? Would the court ignore a directive by Edna? Should it? Also note that the court will not remove the feeding tube of a person who feels pain but will remove it from a person who cannot feel pain. The result is that people who feel pain will continue to do so. Is that a humane concept? Would a person wish to be preserved in a condition in which they can feel pain but not in a condition in which they can’t feel pain?

“¶19 One of the main reasons that this court in L.W. limited the scope of its holdings is the fact that The American Academy of Neurology explains that people in a persistent vegetative state do not feel pain or discomfort. L.W.[36] In the case at bar, Edna M.F. is not in a persistent vegetative state and could therefore likely feel the pain and discomfort of starving to death. Even a competent person cannot order "the withholding or withdrawal of any medication, life-sustaining procedure or feeding tube" if "the withholding or withdrawal will cause the declarant pain or reduce the declarant's comfort" unless the pain or discomfort can be alleviated through further medical means.[37] In the case where withdrawal of life-sustaining medical treatment, including nutrition or hydration, will cause pain or discomfort, then, the competent and incompetent person have exactly the same rights. 6[38]

Is this court deciding based on this case, or based on a hypothetical future case? Are future courts incapable of making proper distinctions?

“¶20 This court has established a bright-line rule in L.W. that the guardian of an incompetent ward possesses the authority to direct withholding or withdrawal of life-sustaining medical treatment, including artificial nutrition and hydration, if it is in the best interests of the ward and the ward is in a persistent vegetative state. Spahn now asks this court to extend the scope of L.W. to include those incompetent patients who are afflicted with incurable or irreversible conditions of health. We decline to go down this slippery slope, for the consequences and the confusion may be great. One author explains as follows:

“While at first euthanasia may be institutionalized only for those in terrible pain, or those who are terminally ill, or those for whom it is otherwise appropriate, the pressure of the allocation of health care resources will inevitably enlarge the class for whom euthanasia is deemed appropriate. Every society has a group who are deemed to be socially unworthy and members of that group--the uneducated, the unemployed, the disabled, for example--will become good candidates for euthanasia.[39]

“This court has drawn a bright-line in L.W., and we will not venture down the slippery slope of extending it when there is insufficient evidence of the ward's desires.

“¶21 Even though Edna M.F. is not currently existing in a persistent vegetative state, if her guardian can demonstrate by a preponderance of the evidence a clear statement of Edna's desires in these circumstances, then it is in the best interests of Edna to honor those wishes. 7[40] [41] The reason this court requires a clear statement of the ward's desires is because of the interest of the state in preserving human life 8[42] and the irreversible nature of the decision to withdraw nutrition from a person. This court explained the magnitude of this type of decision as compared to other, less permanent, decisions in Eberhardy:

Importantly, however, most determinations made in the best interests of a child or an incompetent person are not irreversible; and although a wrong decision may be damaging indeed, there is an opportunity for a certain amount of empiricism in the correction of errors of discretion. Errors of judgment or revisions of decisions by courts and social workers can, in part at least, be rectified when new facts or second thoughts prevail....Sterilization as it is now understood by medical science is, however, substantially irreversible.[43]

“Like sterilization, the decision to withdraw life-sustaining medical treatment is also not reversible, because death is not reversible. It is for this reason, then, that we require a guardian to show a clear statement of the ward's desires by a preponderance of the evidence.

“¶22 We now turn to the case at bar to determine whether there is sufficient evidence in the record to reflect a clear statement of desire by Edna M.F. while she was still competent. The trial court did not make an explicit factual finding as to whether the guardian met this burden. However, it did mention in its memorandum decision that none of the witnesses who presented letters and affidavits to the court ever discussed the matter with Edna M.F., and that the only testimony as to Edna's opinions on the situation dates back to 1966 or 1967. Generally, findings of fact shall not be set aside unless they are clearly erroneous,[44] but in a situation where there are no explicit factual findings, "this court may affirm the judgment if '[a] perusal of the evidence shows that the court reached a result which the evidence would sustain if specifically found.' "[45]

Does the court create an impossible test? Must a person specify their precise future condition? How specific must they be? Do directives contain the level of specificity this court requires? If not, do they have any effect?

“¶23 The record speaks very little to what Edna's desires would be under the current circumstances. We know from the record that she was a vibrant woman, a gifted journalist, and a devout Roman Catholic. We know that she was and is loved dearly by her family and friends, and that the majority of them feel that she "would not want to be kept alive" in this condition. We know that in 1966 or 1967 during a time of family crisis, she said that she "would rather die of cancer than lose [her] mind." But we do not have any clear statement of what her desires would be today, under the current conditions. Her friends and family never had any conversations with her about her feelings or opinions on the withdrawal of nutrition or hydration, and she did not execute any advance directives expressing her wishes while she was competent.

“¶24 There is a presumption that continuing life is in the best interests of the ward.[46] The only evidence in the record of Edna's desires is the general statement she made to her sister in 1966 or 1967. We understand how difficult Edna's illness has been on her loved ones, and we sympathize with their plight, but the evidence contained in the record is simply not sufficient to rebut the presumption[47] that Edna would choose life. A perusal of the record and the insufficiency of the evidence contained therein supports the result the trial court reached, even though there was no explicit factual finding by the trial court on this issue.

“¶25 In conclusion, this court declines to extend the scope of L.W. beyond those incompetent wards who are currently in a persistent vegetative state; we will not apply L.W. to those with incurable or irreversible conditions. As such, we re-affirm the decision of this court in L.W. that the threshold at which this court will authorize the withholding or withdrawal of life-sustaining medical treatment is the point at which trained medical doctors diagnose a patient as being in a persistent vegetative state.

Is the court passing the buck to the doctor? Is the court encouraging the doctor to lie? May the ward shop for a doctor who will find a persistent vegetative state? Is the court avoiding responsibility by placing the responsibility, and liability, upon the doctor? Is the doctor exposed to liability? What happens if the doctor passes the buck back to the court by insisting on a court order? What happens in a situation like the case at bar in which one relative refuses to consent and the medical people require all to consent? Can the doctor or institution be sued for refusing to remove the tube? Will the court refuse the case? Can the court really avoid these cases?

“¶26 Whether or not a patient is in a persistent vegetative state is a medical, not legal, determination. If Edna M.F.'s doctors determine she is now in a persistent vegetative state and the guardian determines that it is in the best interest of Edna, she may be authorized to withhold nutrition and hydration. As it now stands, however, the facts of this case do not support a finding that Edna M.F. is in a persistent vegetative state. That is the rule of L.W. and we decline to extend that rule.

The holding. A persistent vegetative state is a prerequisite. Many questions are raised by this holding. How “recent” is recent? What is the “best interest”? What “circumstances” are not “different” and what is a“clear” statement?”

“¶27 Consequently, we hold that a guardian may only direct the withdrawal of life-sustaining medical treatment, including nutrition and hydration, if the incompetent ward is in a persistent vegetative state and the decision to withdraw is in the best interests of the ward. We further hold that in this case, where the only indication of Edna's desires was made at least 30 years ago and under different circumstances, there is not a clear statement of intent such that Edna's guardian may authorize the withholding of her nutrition.

“The decision of the Wood County Circuit Court is affirmed.

“¶28 SHIRLEY S. ABRAHAMSON, Chief Justice (concurring).

“I join in the mandate. I agree that In the Matter of Guardianship of L.W.,[48] should not be extended to persons not in a persistent vegetative state. 1[49]

“¶29 I write separately because I believe (1) that the majority opinion's characterization of Ms. F.'s condition is incomplete and (2) that further discussion of the application of L.W. to the present case is needed.

“¶30 I write first to explain my disagreement with the majority opinion's characterization of some parts of the record.

“¶31 The majority's discussion of Ms. F.'s condition does not do justice to the factual record. The majority describes Ms. F. as bedridden, responsive to stimulation and appearing alert at times. While this description is true, it conveys an inaccurate picture of Ms. F.'s medical situation. Ms. F. breathes without assistance but in all other respects is dependent on others for her care and continued existence. Ms. F.'s muscles have deteriorated to the point where her limbs are contracted and immobile. She demonstrates no purposeful response, such as withdrawal, to tactile, aural or visual stimuli; she makes non-specific responses to pinching or tapping of the arm or sternum. There is also some testimony suggesting Ms. F. occasionally may track movements in the room with her eyes.

“¶32 Two attending physicians testified; only Dr. Erickson, however, was asked to opine on whether Ms. F. was in a persistent vegetative state at the time of his examination of her. Dr. Erickson testified as follows:

The definition [of persistent vegetative state] as described in the journal of neurology in 1989, January, 1989, requires that there be no behavioral response whatsoever over an extended period of time, and that no voluntary action or behavior of any kind is present. As I testified before, Edna, in my opinion, has provided evidence of some minimal response to stimulation from her surrounding, and so in the strict definition, I would have to say that she approximates but does not entirely meet that definition of the persistent vegetative state.[50]

“¶33 The circuit court made the following finding of fact, in accord with the guardian's position and the evidence presented: "Edna M.F. is a 71 year old woman whose mental condition approximates but does not meet the clinical definition of persistent vegetative state." Given the record in this case the circuit court's finding that Ms. F. is not in a persistent vegetative state is not clearly erroneous.2[51]

“¶34 The other important factual question is whether Ms. F. made a clear expression of her wishes regarding life-sustaining medical treatment. I agree with the majority opinion that the record supports the finding that she did not and the circuit court's memorandum decision implies such a finding. That finding is not clearly erroneous.

II.

“¶35 I have some concern about the majority opinion's characterization of several aspects of the L.W. decision.

“¶36 L.W. largely controls our decision in the present case. L.W. held that a guardian may consent to the withholding or withdrawal of life-sustaining medical treatment on behalf of one who was never competent, or a once competent person whose conduct was never of a kind from which one could draw a reasonable inference upon which to make a substituted judgment, 3 [52] when: (1) the attending physician and independent physicians determine with reasonable medical certainty that the patient is in a persistent vegetative state and has no reasonable chance of recovery to a cognitive and sentient life; and (2) the guardian determines in good faith that the withholding or withdrawal of treatment is in the ward's best interests.[53]

“¶37 I feel it necessary to state what I believe L.W. does and does not stand for and to offer further discussion of the application of L.W. to the facts of this case.

“¶38 First, L.W. held that a person's right to refuse life-sustaining medical treatment includes the right to refuse the provision of nutrition and hydration.[54] 4[55] It is therefore of no moment that the United States Supreme Court "merely assumed" this fact in Cruzan v. Director, Missouri Dep't of Health,[56] as the majority opinion states.[57] There is no longer any doubt that the provisions of nutrition and hydration by artificial means are forms of medical treatment in Wisconsin.

“¶39 Second, L.W. held that a surrogate decision maker must apply a best interests test to determine the propriety of withholding life-sustaining medical treatment to a person who was never competent or a person whose conduct while competent was never of a kind from which one could draw a reasonable inference upon which to make a substituted judgment.[58] L.W. did not establish whether a substituted judgment test or other test is appropriate to determine the propriety of withholding life-sustaining medical treatment from a person who gave indication while competent of his or her wishes regarding such treatment. Nor did L.W. address the proper test to be used when the incompetent person is not in a persistent vegetative state. L.W. was concerned with a person in a persistent vegetative state who by all indications had never been competent. There was, therefore, no basis on which a guardian or a court could make a substituted judgment and only under such circumstances did the court rule out a substituted judgment test.[59] It would be inaccurate to conclude that the substituted judgment test has been rejected in other circumstances.

“¶40 I take the majority opinion to imply that L.W. rejected the substituted judgment test for all persons in a persistent vegetative state:

Noting that this court has rejected the substituted judgment standard in the past[60] and that the clear and convincing evidence standard would be too strict, this court [in L.W.] concluded that an objective "best interests" standard was the appropriate standard to apply when deciding whether to withdraw life-sustaining medical treatment from an incompetent ward in a persistent vegetative state.[61] The only thing that matters in the decision-making process is what would be in the ward's best interests.[62]

But the court in L.W., having considered the two cases cited by the majority opinion in the present case, Pescinski and Eberhardy, stated explicitly that substituted judgment may be the appropriate test in some circumstances:

[N]either of these cases should be construed to mean that a surrogate decision maker could not make a substituted judgment or decision that was designed to carry out the wishes of the incompetent if the incompetent's wishes were knowable.... To hold that all substituted judgments are ipso facto rejected would probably constitute an unconstitutional holding for it would deprive an incompetent of the constitutional right of choice a right that is universally recognized when the choice is ascertainable.[63]

The court has no reason to address the appropriate test in the present case because according to the record Ms. F. was not in a persistent vegetative state and her wishes were not knowable. The majority opinion therefore should not be read to change or add to L.W.'s limited statement regarding the appropriate test for a court or guardian to apply in determining the propriety of withholding life-sustaining medical treatment. 5[64]

This opinion is issued two years after the hearing. The acknowledgement that “court are poorly equipped to handle these matters is a breathtaking understatement..If the patient’s directive was “recent” in 1988 when the feeding tube was surgically implanted, is it still “recent” in 1995 when the hearing is held or 1997 when this opinion is issued? Is a court system that takes two years to issue the opinion in this case capable of functioning in these matters? What is a reasonable and humane length of time for the court process in this case? Either the courts could have acted faster, but didn’t, or they can’t act faster. Which is most troubling? Note that no justice mentions this institutional incapacity.

“¶41 Third, pursuant to L.W., the court's ruling today is limited to Ms. F.'s condition in the spring of 1995. The decision whether to seek additional diagnoses when this case is completed properly belongs to the guardian and not to the court. It is a fundamental premise of L.W. that ordinarily decisions to withhold or withdraw life-sustaining medical treatment of a ward are to be made by a guardian in conjunction with doctors and the family, not by the courts. As L.W. stated, courts are poorly equipped to handle these matters.[65]

“¶42 If the guardian chooses to seek further diagnoses and if the doctors, applying current medical knowledge, determine that Ms. F. is at the time of examination in a persistent vegetative state, the guardian may consent to withdrawal of nutrition or the guardian may decide not to withdraw nutrition. In either event, no further circuit court proceeding is available or required unless an interested person objects to the withdrawal of nutrition.

Is this “don’t ask, don’t tell,” “just do it”?

“¶43 The diagnosis of a persistent vegetative state or its absence is made by qualified physicians using scientifically current information and standards. Guardians and doctors must be allowed to adopt the medical community's most advanced thinking on the subject. 6[66] It is similarly important that physicians who are called upon to make the apparently difficult diagnosis of a persistent vegetative state be expert in this area of medicine. Court review of the guardian's determination is necessary only if a party in interest objects.[67]

“¶44 Fourth, the holding in L.W. should be understood to state the principle that the fact that the ward is in a persistent vegetative state is a significant legal threshold.

“¶45 Under L.W. the opinion of an attending physician is essential for the withdrawal of nutrition. Dr. Erickson, one of the attending physicians, was an internist, had extensive experience with older persons including treating Alzheimer's patients, and held a certificate of added qualifications in geriatrics. While the guardian and guardian ad litem believe that withdrawal of life-sustaining treatment for Ms. F. is appropriate, they relied on the diagnosis of Ms. F.'s attending physicians, as they were required to do under L.W.

“¶46 When the attending physician did not diagnose Ms. F. as in a persistent vegetative state, there was no point in consulting independent physicians. The issue of who should be the independent physicians to diagnose Ms. F.'s condition is thus not raised in this case and has not been briefed by the parties. Furthermore, L.W. does not address the difficult question of what procedure should be followed when there is disagreement among the consulted physicians whether the patient is in a persistent vegetative state. Again, this question is not raised or briefed in this case.

“¶47 To the extent it may be necessary or appropriate for the court to change, add to, or expand upon the standards set forth in L.W., the court should do so only with the benefit of full adversarial briefing in a case presenting a real controversy framed by adversarial parties.[68]

“¶48 I view L.W. as the first step in addressing withdrawal of life-sustaining medical treatment from persons in a persistent vegetative state who have not clearly expressed their wishes. As is evident in this case, L.W. has not answered all the questions that will be raised in this complex and troubling area. I have tried to take care, however, not to use the present case as the vehicle to offer answers to unresolved complex questions that have been neither raised nor briefed. I am concerned that I not engage in appellate decision making of the sort Attorney Bernard Witkin has characterized as "Have Opinion, Need Case."[69]

“¶49 Fifth, L.W. commented favorably on the role of the health care provider's ethics committee. 7[70] Hospital or nursing home[71] ethics committees provide an important forum for careful deliberation about the decision to withhold life-sustaining medical treatment. Based on the limited record before us, it appears that the committee reviewing the request by Ms. F.'s guardian did not function effectively. Had Ms. F. been in a persistent vegetative state and had an interested person objected to the withdrawal of nutrition, the circuit court stated that it would have been unable to give weight to the committee's purported determination that withholding of nutrition was the ethically proper course. The circuit court noted that no formal minutes or report of the meeting was produced at the hearing and that the committee members apparently functioned without either a shared body of rules or training in ethics. In fairness to the committee members in this case, it must be noted that the committee had only recently been formed and had deliberated in perhaps only one other case.

This justice thinks the facility was worried about responsibility and liability. Does this court avoid responsibility even though it has judicial immunity? If the doctor or hospital removes the feeding tube, and is sued, will the court exempt them from liability? Will it hold them liable and remind them not to worry about liability? Does this create liability for the doctor and facility if they refuse to remove the feeding tube?

“¶50 The circuit court also seemed troubled, as am I, with the apparent focus of the ethics committee's investigation. The committee seemed to understand that its function was to reach a determination that would insulate the facility from legal liability rather than the determination that best comported with medical ethics. 8[72] The focus of all participants in this fateful and difficult process should be on the propriety of taking action which will lead to a person's death. The health care facility's liability concerns must not be allowed to interfere with the guardian's efforts to assure the exercise of the ward's right to be free of unwanted life-sustaining medical treatment when the guardian has determined, in consultation with the physicians, that the ward is in a persistent vegetative state and it is in the ward's best interests to withhold such treatment.

“¶51 For the foregoing reasons I write separately.

Must Reading!

“¶52 WILLIAM A. BABLITCH, Justice (concurring).

“The medical determination of the existence of a persistent vegetative state is, literally, one of life or death. It is important the doctors get it right. It is equally important that we get the law right.

“¶53 The majority and the concurring opinions, and this writer, agree that if a person is not in a persistent vegetative state, medical treatment cannot be withdrawn.

“¶54 We further agree that if Ms. F. is diagnosed again and the doctors determine that she meets the current medical definition of persistent vegetative state, medical treatment may be withdrawn even if her physical condition has not changed from the time of the diagnosis rendered in this case.

“¶55 But then we part company.

“¶56 Regrettably, the majority and the concurring opinions fail to establish a significant safeguard designed to ensure the accuracy of that determination. They would allow any person with a medical degree to make the critical diagnosis that drives the ultimate decision to withdraw or continue life sustaining medical treatment. Furthermore, they insist on the presence of three doctors only when the decision is to withdraw life sustaining medical support. Respectfully, I cannot join such a decision.

Are the judges simply imposing their personal views? Is there a constitutional or legal basis or is it just what they think is a good idea?

“¶57 I would direct as a matter of law that anytime a guardian requests a diagnosis for the purpose of determining the presence or absence of a persistent vegetative state in order to ascertain whether life sustaining medical treatment can be withdrawn, three conditions must be met. First, the diagnosis must be made by the attending physician and two independent doctors. Second, at least one of the independent doctors must be a specialist in the medical field relevant to the patient's condition. 1[73] Third, I join with the concurring opinion that the doctors must rely on current medical authority generally accepted in that specialty. Inasmuch as Alzheimer's is a neurological disease, I would direct that in the case of Ms. F. one of the independent doctors be a neurologist relying on current medical authority accepted in the field of neurological medicine.

“¶58 The majority and concurring opinions fail to require that one of the attending physicians be a specialist in the medical field relevant to the patient's condition.

“¶59 This case amply demonstrates the need for such protection. Neither of the two physicians who examined Ms. F. were neurologists. The only doctor who was asked his opinion on whether Ms. F. was in a persistent vegetative testified she was not. However, he testified that his diagnosis was based on a January 1989 article in the medical journal, Neurology. The authority he relied on was arguably outdated.

Note the dates. The tube was implanted in 1988. The trial court proceeding was filed in 1995. Did the definition of “persistent vegetative state” change to make Edna’s condition qualify for the definition while she was in that condition? If the change in the definition changes the result, power to decide results is delegated to those who define a medical term. Is that desirable, proper, or legal? Does it create potential liability for those who define the term? What happens if there are multiple definitions from multiple sources?

“¶60 The entire 1989 Statement upon which the doctor relied covered two pages in that journal. In 1991, the Multi-Society Task Force on Persistent Vegetative State was created. 2[74] The Task Force's 1994 Statement, a far more exhaustive treatment of persistent vegetative state, summarizes current knowledge of the medical aspects of persistent vegetative state. 3[75] The 1994 Statement explains, refines and substantially augments the 1989 definition of persistent vegetative state applied by Ms. F.'s doctor in his diagnosis.

The doctor erred.

“¶61 As more fully discussed below, the 1994 Statement appears to call into serious question the accuracy of the diagnosis made by Dr. Erickson.

Doctors err.

“¶62 Unless this court directs that at least one of the doctors be a specialist current in his or her field, there is nothing to stop this from happening again. The potential for serious error, as possibly occurred here where Ms. F. was diagnosed as not being in a persistent vegetative state, is patent. The potential for serious error in cases involving a patient diagnosed as being in a persistent vegetative is equally apparent.

L.W. needs safeguards.

“¶63 In retrospect, L.W. should have insisted upon, rather than recommended, a specialist in the field. It did not, and the majority and concurring opinions continue in that error. In a justifiable desire to leave these decisions as much as reasonably possible to family members and their physicians and not the courts, the majority and concurring opinions abdicate too much. They are willing to allow any person with a medical degree to diagnose the presence or absence of a persistent vegetative state.

Doesn’t trust all doctors.

“¶64 I am not.

The doctors are the key.

“¶65 A diagnosis of the presence or absence of a persistent vegetative state drives the ultimate decision to withdraw or continue life sustaining medical treatment. It is far too important and critical a decision to leave in the hands of anybody with a medical degree. A level of expertise beyond a medical degree should be demanded.

Other States

“¶66 Other states and commentators have recognized this problem. One legal scholar cites the risk of an erroneous medical diagnosis as one of the three major factors that contribute to the risk of an improper decision to continue or to withhold life sustaining medical treatment.[76] Professor Fentiman notes that a number of courts have implicitly recognized this possibility of a mistaken diagnosis.[77]

New Jersey

“¶67 The New Jersey Supreme Court, which set the stage for decision making analysis in these cases with the Quinlan decision, expressly recognized the risk of an erroneous diagnosis.[78] To guard against the risk of such an error and to ensure the preservation of medical ethics, the surrogate decision maker must secure statements from "at least two independent physicians knowledgeable in neurology that the patient is in a persistent vegetative state."[79]

Washington

“¶68 Acknowledging that the prognosis determination is a medical one, the Washington Supreme Court held that even this prong of the life-sustaining medical treatment decision making process must incorporate safeguards to protect patients from an inaccurate diagnosis.[80]

“¶69 The concurring opinion recognizes to some extent these problems by stating that "It is similarly important that physicians who are called upon to make the apparently difficult diagnosis of a persistent vegetative state be expert in this area of medicine."

Doctors must be competent.

“¶70 It is more than "important." It is critical. I would not recommend, I would direct. The absence of this safeguard in the majority and concurring opinions charts a perilous course.

This doctor erred.

“¶71 Dr. Erickson, who is not a neurologist, relying on arguably outdated medical authority, diagnosed Ms. F. and testified that she approximates but does not meet the strict definition of persistent vegetative state. If he was in error, important constitutional rights were denied Ms. F. This record raises serious concern in my mind that he may have been in error. At the very least, his testimony did not indicate a knowledge of the 1994 Statement. A neurologist might well have been aware. It might have changed the diagnosis.

Erroneous refusal to remove the tube can be corrected. Is that true? If Edna was erroneously kept on the feeding tube for years, can that be undone? Does removal of the tube years later “correct” error?

“¶72 Nevertheless, if there was an error made in the diagnosis of Ms. F., or others like her, it was an error made on the side of life. It can be corrected. Not so in the case of a diagnosis of a persistent vegetative state of a person who is in fact not in a persistent vegetative state. Once medical treatment is withdrawn, life will cease: misdiagnosis in that event cannot be corrected. Surely some minimum safeguards speaking to the expertise and knowledge of the doctors should be present. The majority requires nothing other than a medical degree.

The “law” seems to be just the preference of the justices.

“¶73 I would require more.

II.

“¶74 Unfortunately, the majority and concurring opinions require three doctors only when life sustaining support is to be withdrawn. They are silent as to the threshold stage in any case involving these issues: the decision of the guardian to seek a diagnosis.

“¶75 I would require three doctors anytime a guardian requests a diagnosis for the purpose of determining the presence or absence of a persistent vegetative state. The importance of that requirement is demonstrated by this case. Once the attending physician determined that Ms. F. was close but not actually in a persistent vegetative state, the inquiry was ended. But if Ms. F. was incorrectly diagnosed, as I believe is suggested in this record, important constitutional rights were denied her.

“¶76 We require three doctors when the decision to withdraw life support is made. Is it not equally important to require the same number of doctors at the threshold inquiry which, in a case like this, is determinative of constitutional rights?

“¶77 I would require that once the guardian determines that the question of withdrawal of life sustaining medical support is presented, the attending physician and two independent doctors must be consulted.

III.

“¶78 Fortunately, the concurring opinion recognizes the importance of using current medical authority, and directs that it be used.[81] I join that part of the concurring opinion. Accordingly, that requirement has the support of a majority of this court.

The definition changes. How can the common “law” be based on medical definitions that can change without court involvement?

“¶79 The importance of using current medical authority is amply demonstrated in this record. Dr. Erickson, relying on a January, 1989, journal of neurology, testified that the standards expressed therein required "that there be no behavioral response whatsoever over an extended period of time." Further, he testified that those 1989 standards required there be "no voluntary action or behavior of any kind [present]." Because there was "some minimal response to stimulation from her surroundings" the doctor concluded Ms. F. "approximates but does not entirely meet that definition of the persistent vegetative state."

What does “persistent vegetative state” mean? Note the dates. The 1994 definition was rather recent in 1995.

“¶80 This testimony was crucial. No one disputed the doctor's finding that Ms. F. was not in a persistent vegetative state. The circuit court had no choice but to agree. But current medical authority, the 1994 Statement, contradicts or at the very least calls into serious question Dr. Erickson's conclusion. It does not require "no behavioral response whatsoever" for the presence of a persistent vegetative state; rather, it requires no evidence of "sustained" behavior of that kind.

Is Edna really in a persistent vegetative state?

“¶81 In order to more fully understand why the 1994 Statement seriously undercuts the doctor's conclusion, it is necessary to first understand more completely the condition of Ms. F. with respect to her response to stimulation. 4[82]

“¶82 Although she appears to respond to voices or noises in her room, she makes no meaningful response to questions or commands. 5[83] Several medical professionals who had regular contact with Ms. F. described her condition. Licensed practical nurse, Patricia Rohmeyer (Rohmeyer), has had regular contact with Ms. F. since 1986. Rohmeyer testified that she "[d]oes not respond most of the time when you speak to her, either by blinking her eyes or opening her eyes." Edna F. does not respond when Rohmeyer places a finger in her hand and asks her to squeeze the finger. When asked whether Ms. F. looked toward a person who called her name, Rohmeyer responded that "[s]he wasn't able to today." She described Ms. F.'s condition as "progressive through the years."

“¶83 Spahn described her sister's condition to the circuit court: "Sometimes I can get her to look at me.... Sometimes I can get her to look. Not very often. The last couple times I have been in I've gotten--I did get her to open her eyes, but not to look at me."

“¶84 Even more telling was the testimony of Dr. Erickson. He described Ms. F.'s condition on December 19, 1994:

She did respond to voice by opening her eyes, but did not respond to command.... She opened her eyes and looked, but not in any meaningful way at me. She simply appeared to respond to a voice or to a noise in the room. I discussed with the nursing staff at that time, although I did not notice that she would occasionally track movement in the room. The level of alertness that I found at that time in discussion with the nursing staff was consistent with what they had observed on a day to day basis.... Periodically she would follow movement in the room, or she may respond to tactile stimulation or voice by opening her eyes. But there was no meaningful response to command or attempts at communication.

“¶85 The record reveals that upon application of mildly noxious stimuli, Ms. F. might open her eyes or grimace but, her doctors say, she fails to make a consistent effort to withdraw from or to remove the stimulation.

“¶86 Dr. Przyblinski described Ms. F.'s response to mildly noxious stimuli: "When I gave her tactile stimulation which I considered mildly noxious, either pinching her forearm or her leg or rubbing her sternum, she grimaced and she did make a moaning sound. She did not make any attempt to push my hand away or pull her arm or leg away, so I didn't see anything that I would see as purposeful movement with that kind of stimulation." He further states that she is no longer aware of, nor can she interact in any purposeful manner, with her surroundings, or the people who are attending to her.

“¶87 Dr. Erickson has never observed a consistent effort by Ms. F. to withdraw from noxious stimuli. When he touches her face, or presses gently on her sternum, she might make a minimal response, i.e., a movement or facial expression, acknowledging the stimulation, but he has observed no consistent effort to withdraw or to remove the stimuli. When doctors subject her to noxious stimuli, Ms. F.'s vital signs remain stable.

This is the 1994 definition of a persistent vegetative state.

“¶88 The 1994 Statement lists the following criteria according to which the vegetative state can be diagnosed:

(1) no evidence of awareness of self or environment and an inability to interact with others;

(2) no evidence of sustained, reproducible, purposeful, or voluntary behavioral responses to visual, auditory, tactile, or noxious stimuli;

(3) no evidence of language comprehension or expression;

(4) intermittent wakefulness manifested by the presence of sleep-wake cycles;

(5) sufficiently preserved hypothalamic and brain-stem autonomic functions to permit survival with medical and nursing care;

(6) bowel and bladder incontinence; and

(7) variably preserved cranial-nerve reflexes (pupillary, oculocephalic, corneal, vestibulo-ocular, and gag) and spinal reflexes.

“¶89 Dr. Erickson testified that a persistent vegetative state required "no behavioral response whatsoever." As seen from the above 1994 Statement, that appears to be an incorrect conclusion: "no evidence of sustained, reproducible, or voluntary behavioral responses to ... stimuli." The 1994 Statement further cautions that motor or eye movements and facial expressions in response to various stimuli also occur in persons in an irreversible vegetative state. These movements and expressions occur in stereotyped patterns that indicate reflexive responses integrated at deep subcortical levels, and are not indicative of learned voluntary acts. The presence of these responses is consistent with complete unawareness. The 1989 Statement does not discuss the subtle distinctions between the visual pursuit of a person who is aware of the surroundings and a person in a persistent vegetative state.

This justice suggests that Edna was in a persistent vegetative state after all, and that the court is sending the case back so that the doctor can change the diagnosis. Yes, two years after the hearing, the doctor is asked to try diagnosing Edna again so the tube can be removed. That seems to be the practical result of this case.

“¶90 Given that Dr. Erickson believed the existence of a persistent vegetative state required no behavioral response whatsoever, given that he testified Ms. F.'s responses were "minimal," and given the above quoted texts from the 1994 Statement, I conclude a serious question exists as to the accuracy of his diagnosis. If so, important constitutional rights have been denied Ms. F. The use of current medical authority might well have changed his diagnosis. Fortunately, that is now the mandate of this court.

Summary

“¶91 In summation, I would hold that anytime a guardian requests a diagnosis for the purpose of determining the presence or absence of a persistent vegetative state to ascertain whether life sustaining medical treatment may be withdrawn, three conditions must be met: 1) the diagnosis must be made by the attending physician together with two independent doctors; 2) at least one of the independent doctors must be a specialist in the medical field relevant to the patient's condition; and, 3) the diagnosis must rely on current medical authority generally accepted in that specialty.

Is the message that the doctor should change the diagnosis so that Edna’s feeding tube can be removed without it being the decision of this court? Is it “don’t ask, don’t tell, just remove the tube?”

“¶92 If indeed Ms. F.'s original diagnosis was incorrect, needless suffering has been endured by her family and loved ones as they have been forced to sit helplessly by watching this woman they love continue an emptiness that only the most literal would call life. Had the procedures I recommend been utilized, this might have been avoided. Fortunately, if error has been made it can be corrected. All members of this court agree that she can be re-diagnosed. If her attending physician and two independent doctors agree that she meets the current medical definition of persistent vegetative state, and no one objects, medical treatment may be withdrawn without further recourse to the courts. This is so even if her physical condition has not changed from the time of the original diagnosis rendered in this case.

This justice thinks Edna will be fortunate if the feeding tube is removed. If so, why not just approve removal?

“¶93 Others may not be as fortunate.

“¶94 For the above stated reasons, I respectfully concur. 6[84]

“¶95 JANINE P. GESKE, Justice (concurring).

“I join both the majority opinion authored by Justice Donald W. Steinmetz and the concurring opinion authored by Chief Justice Shirley S. Abrahamson.

“¶96 ANN WALSH BRADLEY, Justice (concurring).

“I join both the majority opinion authored by Justice Donald W. Steinmetz and the concurring opinion authored by Chief Justice Shirley S. Abrahamson.

* * * * *

Practical and Emotional Issues In Feeding Tube Removal Cases

The Wendland case percolated though the courts for five years after the wife who was the guardian requested approval for removing the feeding tube. Robert Wendland remained on a feeding tube until he died. This case case became moot, but the court had an opinion, so it issued it. The opinion is based on the facts at the time of the hearing. The five year court process raises the question of whether the California courts are capable of resolving feeding tube removal disputes in a reasonable and humane manner. Is there any point to a court process that takes five years? Is a five year process humane? Is it reasonable? Is justice delayed, justice denied?

* * * * *

Wendland

Wendland Timeline

1993 Accident & Coma

1995 Robert Comes Out of Coma and has some cognition

1995 Removal of Feeding Tube is Proposed

1996 Court of Appeals Ordered Appointment of Independent Counsel

2000 Court of Appeals Opinion Issued

2001 Death of Robert Wendland between oral argument and opinion

2001 California Supreme Court Opinion Issued

Issues Which the Courts Neglects

There are many issues that are ignored by all of the state supreme courts which have issued opinions on this topic.

Who bears the financial burden of the medical care and litigation? What is the status of a spouse of a person like Robert? What advice would you give a person whose spouse is in Robert’s condition. Would you recommend a divorce for emotional or financial reasons or to become eligible for remarriage? What are the moral issues facing a spouse. For example, assume that a spouse is a childless 30 year old woman who was married two months before an accident caused her husband to be Robert Wendland’s condition, and that she had married with the hope and expectation of motherhood. Would the cause of the accident matter? Would fault for the accident matter? Do the wishes of the injured spouse matter? While both are competent, should couples decide whether, if one fully incapacitated, the healthy spouse should divorce or date? Should couples execute written agreements covering dating or divorce in those circumstances? What if the couple has frozen fertilized preembryos (test tube babies) in storage. What do you think of a wife, while the husband is in Robert’s condition, implanting frozen fertilized preembryos that she and her husband created when both were competent? The variations of facts and law are potentially endless. The issues are difficult and troubling. Discussing them may bring up feelings and views that create disagreements. Should these issues be ignored because they are difficult?

Do you advise clients to discuss these dating and divorce issues and to execute advance agreements and directives related to them? Do you draft them? What effect does the advance discussion of these issues have on the couple’s relationship?

What emotions are appropriate for a spouse, child, sister, or other family member between the time they decide to request removal of the feeding tube, and the time it is removed? What emotions are appropriate between the time of the request and the time the court decides not to allow removal?

If the courts decision whether to remove the tube is issued years after the facts are examined, how can the court decide without concern that the facts have changed in a way that would change the result? If an appellate court wants the right decision, should it remand every feeding tube removal case for an examination of the current facts? Would there be a perpetual cycling of the case as the new decision is appealed, and each appeal takes so long that remand is required?

Should the legislature take the authority from the court and give it to a person who makes the decision without appeal? When you read the California statute, consider whether that is what the legislature did. If the legislature rejects Wendland and precludes court involvement, will this court accept that law?

Conservatorship of the Person of Robert Wendland [85] (Cal. August 9, 2001)[86]

Note the participants listed in this footnote.[87]

Counsel who argued are listed in this footnote[88]

The issue and resolution of the issue. The courts footnote #1 states that Robert died after oral argument and before the court issued this opinion.

In this case we consider whether a conservator of the person may withhold artificial[89] nutrition and hydration from a conscious conservatee who is not terminally ill, comatose, or in a persistent vegetative state, and who has not left formal instructions for health care or appointed an agent or surrogate for health care decisions. Interpreting Probate Code section 2355 in light of the relevant provisions of the California Constitution, we conclude a conservator may not withhold artificial nutrition and hydration from such a person absent clear and convincing evidence the conservator's decision is in accordance with either the conservatee's own wishes or best interest.(FN1)[90]

The results below.

The trial court . . . applying the clear and convincing evidence standard, found the evidence on both points insufficient and, thus, denied the conservator's request for authority to withhold artificial nutrition and hydration. The Court of Appeal, which believed the trial court was required to defer to the conservator's good faith decision, reversed. We reverse the decision of the Court of Appeal.

I. FACTS AND PROCEDURAL HISTORY

The parties. The feeding tube is described in the court’s footnote 2.

On September 29, 1993, Robert Wendland rolled his truck at high speed in a solo accident while driving under the influence of alcohol. The accident injured Robert's brain, leaving him conscious yet severely disabled, both mentally and physically, and dependent on artificial nutrition and hydration.(FN2)[91] Two years later Rose Wendland, Robert's wife and conservator, proposed to direct his physician to remove his feeding tube and allow him to die. Florence Wendland and Rebekah Vinson (respectively Robert's mother and sister) objected to the conservator's decision. This proceeding arose under the provisions of the Probate Code authorizing courts to settle such disputes.[92] (FN3)[93]

Months of coma and daily visits by Robert’s wife.

Following the accident, Robert remained in a coma, totally unresponsive, for several months. During this period Rose visited him daily, often with their children, and authorized treatment as necessary to maintain his health.

Robert’s partial recovery.

Robert eventually regained consciousness. His subsequent medical history is described in a comprehensive medical evaluation later submitted to the court. According to the report, Rose "first noticed signs of responsiveness sometime in late 1994 or early 1995 and alerted [Robert's] physicians and nursing staff." Intensive therapy followed. Robert's "cognitive responsiveness was observed to improve over a period of several months such that by late spring of 1995 the family and most of his health care providers agreed that he was inconsistently interacting with his environment. A video recording (FN4)[94] of [Robert] in July 1995 demonstrated clear, though inconsistent, interaction with his environment in response to simple commands. At his highest level of function between February and July, 1995, Robert was able to do such things as throw and catch a ball, operate an electric wheelchair with assistance, turn pages, draw circles, draw an 'R' and perform two-step commands." For example, "[h]e was able to respond appropriately to the command 'close your eyes and open them when I say the number 3.' . . . He could choose a requested color block out of four color blocks. He could set the right peg in a pegboard. Augmented communication(FN5)[95] was met with inconsistent success. He remained unable to vocalize. Eye blinking was successfully used as a communication mode for a while, however no consistent method of communication was developed."

Despite improvements made in therapy, Robert remained severely disabled, both mentally and physically.(FN6)[96] The same medical report summarized his continuing impairments as follows: "severe cognitive impairment that is not possible to fully appreciate due to the concurrent motor and communication impairments . . ."; "maladaptive behavior characterized by agitation, aggressiveness and non-compliance"; "severe paralysis on the right and moderate paralysis on the left"; "severely impaired communication, without compensatory augmentative communication system"; "severe swallowing dysfunction, dependent upon non-oral enteric tube feeding for nutrition and hydration"; "incontinence of bowel and bladder"; "moderate spasticity"; "mild to moderate contractures"; "general dysphoria"; "recurrent medical illnesses, including pneumonia, bladder infections, sinusitis"; and "dental issues."

In 1995, everyone agreed not to reinsert the feeding tube. The doctor inserted it anyway.

After Robert regained consciousness and while he was undergoing therapy, Rose authorized surgery three times to replace dislodged feeding tubes. When physicians sought her permission a fourth time, she declined. She discussed the decision with her daughters and with Robert's brother Michael, all of whom believed that Robert would not have approved the procedure even if necessary to sustain his life. Rose also discussed the decision with Robert's treating physician, Dr. Kass, other physicians, and the hospital's ombudsman, all of whom apparently supported her decision. Dr. Kass, however, inserted a nasogastric feeding tube to keep Robert alive pending input from the hospital's ethics committee.

All agreed to remove the feeding tube.

Eventually, the 20-member ethics committee unanimously approved Rose's decision. In the course of their deliberations, however, the committee did not speak with Robert's mother or sister. Florence learned, apparently through an anonymous telephone call, that Dr. Kass planned to remove Robert's feeding tube. Florence and Rebekah applied for a temporary restraining order to bar him from so doing, and the court granted the motion ex parte.

But, Robert’s sister and mother weren’t asked, and did object.

Rose immediately thereafter petitioned for appointment as Robert's conservator. In the petition, she asked the court to determine that Robert lacked the capacity to give informed consent for medical treatment and to confirm her authority "to withdraw and/or withhold medical treatment and/or life-sustaining treatment, including, but not limited to, withholding nutrition and hydration." Florence and Rebekah (hereafter sometimes objectors) opposed the petition. After a hearing, the court appointed Rose as conservator but reserved judgment on her request for authority to remove Robert's feeding tube. The court ordered the conservator to continue the current plan of physical therapy for 60 days and then to report back to the court. The court also visited Robert in the hospital.

Independent counsel was appointed, and supported removal of the feeding tube.

After the 60-day period elapsed without significant improvement in Robert's condition, the conservator renewed her request for authority to remove his feeding tube. The objectors asked the trial court to appoint independent counsel for the conservatee. The trial court declined, and the Court of Appeal summarily denied the objectors' petition for writ of mandate. We granted review and transferred the case to the Court of Appeal, which then directed the trial court to appoint counsel.[97] Appointed counsel, exercising his independent judgment (see generally Conservatorship of Drabick[98] (Drabick)), decided to support the conservator's decision. (Because the conservator's and appointed counsel's positions in this court are essentially identical, we will henceforth refer solely to the conservator for brevity's sake.)

The trial court.

The ensuing proceeding generated two decisions. In the first, the court set out the law to be applied at trial. The court found no "clear cut guidance" on how to evaluate a conservator's proposal to end the life of a conscious conservatee who was neither terminally ill nor in a persistent vegetative state. Nevertheless, drawing what assistance it could from cases involving persistently vegetative patients,[99] the court held the conservator would be allowed to withhold artificial nutrition and hydration only if that would be in the conservatee's best interest, taking into account any pertinent wishes the conservatee may have expressed before becoming incompetent. The court also determined the conservator would have to prove the facts justifying her decision by clear and convincing evidence. A decision by a conservator to withhold life-sustaining treatment, the court reasoned, "should be premised on no lesser showing" than that required to justify involuntary medical treatment not likely to cause death. On this point, the court drew an analogy to Lillian F. v. Superior Court,[100] which requires clear and convincing evidence of a conservatee's inability to make treatment decisions as a prerequisite to involuntary electroconvulsive treatment. Finally, the court held the conservator would bear the burdens both of producing evidence and of persuasion. "[F]inding itself in uncharted territory" on this subject too, the court explained that "[w]hen a situation arises where it is proposed to terminate the life of a conscious but severely cognitively impaired person, it seems more rational . . . to ask 'why?' of the party proposing the act rather than 'why not?' of the party challenging it."

The evidence.

The medical condition.

The trial generated the evidence set out above. The testifying physicians agreed that Robert would not likely experience further cognitive recovery. Dr. Kass, Robert's treating physician, testified that, to the highest degree of medical certainty, Robert would never be able to make medical treatment decisions, walk, talk, feed himself, eat, drink, or control his bowel and bladder functions. Robert was able, however, according to Dr. Kass, to express "certain desires . . . . Like if he's getting tired in therapy of if he wants to quit therapy, he's usually very adamant about that. He'll either strike out or he'll refuse to perform the task." Dr. Kobrin, Robert's neurologist, testified that Robert recognized certain caregivers and would allow only specific caregivers to bathe and help him. Both Dr. Kass and Dr. Kobrin had prescribed medication for Robert's behavioral problems. Dr. Sundance, who was retained by appointed counsel to evaluate Robert, described him as being in a "minimally conscious state in that he does have some cognitive function" and the ability to "respond to his environment," but not to "interact" with it "in a more proactive way."

On April 29, 1997, Dr. Kass asked Robert a series of questions using an augmented communications device, or "yes/no board." [101] After a series of questions about Robert's physical state, such as "Are you sitting up?" and "Are you lying down?" that Robert appeared to answer correctly "most times," Dr. Kass asked the following questions and received the following answers:

"Do you have pain? Yes.

"Do your legs hurt? No.

"Does your buttocks hurt? No

"Do you want us to leave you alone? Yes.

"Do you want more therapy? No.

"Do you want to get into the chair? Yes.

"Do you want to go back to bed? No.

"Do you want to die? No answer.

"Are you angry? Yes.

"At somebody? No."

So far as Dr. Kass knew, no one had previously asked Robert the same questions. Dr. Kass acknowledged there was no way to verify whether Robert "really understood the questions or not," but "[t]he reason I asked those questions," Dr. Kass continued, "is because [Robert] was able to answer the previous questions mostly correctly. So I thought perhaps he could understand more questions." Dr. Kass believed Robert probably understood some but not all of the questions. Robert's speech pathologist, Lowana Brauer, testified generally that Robert used the augmented communications device primarily as therapy and not with enough consistency to justify leaving the device in his room for communication with other people. She did not, however, testify specifically about the interaction between Robert and Dr. Kass.

Robert’s statements made when competent.

Robert's wife, brother and daughter recounted pre-accident statements Robert had made about his attitude towards life-sustaining health care. Robert's wife recounted specific statements on two occasions. The first occasion was Rose's decision whether to turn off a respirator sustaining the life of her father, who was near death from gangrene. Rose recalls Robert saying: "I would never want to live like that, and I wouldn't want my children to see me like that and look at the hurt you're going through as an adult seeing your father like that." On cross-examination, Rose acknowledged Robert said on this occasion that Rose's father "wouldn't want to live like a vegetable" and "wouldn't want to live in a comatose state."

After his father-in-law's death, Robert developed a serious drinking problem. After a particular incident, Rose asked Michael, Robert's brother, to talk to him. When Robert arrived home the next day he was angry to see Michael there, interfering in what he considered a private family matter. Rose remembers Michael telling Robert: "I'm going to get a call from Rosie one day, and you're going to be in a terrible accident." Robert replied: "If that ever happened to me, you know what my feelings are. Don't let that happen to me. Just let me go. Leave me alone." Robert's brother Michael testified about the same conversation. Michael told Robert: "you're drinking; you're going to get drunk. . . . [Y]ou're either going to go out and kill yourself or kill someone else, or you're going to end up in the hospital like a vegetable-laying in bed just like a vegetable." Michael remembers Robert saying in response, "Mike, whatever you do[,] don't let that happen. Don't let them do that to me." Robert's daughter Katie remembers him saying on this occasion that "if he could not be a provider for his family, if he could not do all the things that he enjoyed doing, just enjoying the outdoors, just basic things, feeding himself, talking, communicating, if he could not do those things, he would not want to live."

The trial court decision on the facts and law.

Based on all the evidence, the court issued a second decision setting out its findings of fact and conclusions of law. Specifically, the court found the conservator "ha[d] not met her duty and burden to show by clear and convincing evidence that conservatee Robert Wendland, who is not in a persistent vegetative state nor suffering from a terminal illness would, under the circumstances, want to die. Conservator has likewise not met her burden of establishing that the withdrawal of artificially delivered nutrition and hydration is commensurate with conservatee's best interests, consistent with California Law as embodied in Barber[102] and Drabick.[103]" Based on these findings, the court granted the objectors' motion for judgment,[104] thus denying the conservator's request for confirmation of her proposal to withdraw treatment. The court also found the conservator had acted in good faith and would be permitted to remain in that office. Nevertheless, the court limited her powers by ordering that she would "have no authority to direct . . . [any] health care provider to remove the conservatee's life sustaining medical treatment in the form of withholding nutrition and hydration."[105] (FN7)[106]

The Court of Appeals

The conservator appealed this decision. The Court of Appeal reversed. In the Court of Appeal's view, "[t]he trial court properly placed the burden of producing evidence on [the conservator] and properly applied a clear and convincing evidence standard. However, the court erred in requiring [the conservator] to prove that [the conservatee], while competent, expressed a desire to die in the circumstances and in substituting its own judgment concerning [the conservatee's] best interests . . . ." Instead, the trial court's role was "merely to satisfy itself that the conservator had considered the conservatee's best interests in good faith . . . ." This limited judicial role, the Court of Appeal concluded, was mandated by section 2355, as interpreted in Drabick.[107] While acknowledging the trial court had already found the conservator had acted in good faith, the Court of Appeal nevertheless declined to enter judgment for the conservator. Instead, the court remanded to permit the objectors to present any evidence rebutting the conservator's case-in-chief. Finally, recognizing that an amended version of section 2355, effective on July 1, 2000, might "be a factor upon remand," the court determined the new law did not affect the outcome. We granted review of this decision.

The California Supreme Court Opinion.

II. DISCUSSION

A. The Relevant Legal Principles

The ultimate focus of our analysis must be section 2355, the statute under which the conservator has claimed the authority to end the conservatee's life and the only statute under which such authority might plausibly be found. Nevertheless, the statute speaks in the context of an array of constitutional, common law, and statutory principles. The Law Revision Commission, which drafted the statute's current version, was aware of these principles and cited them to explain and justify the proposed legislation. Because these principles provide essential background, we set them out briefly here, followed by the history of the statute.(FN8)[108]

The common law

A competent adult may refuse care.

1. Constitutional and common law principles

One relatively certain principle is that a competent adult has the right to refuse medical treatment, even treatment necessary to sustain life. The Legislature has cited this principle to justify legislation governing medical care decisions,[109] and courts have invoked it as a starting point for analysis, even in cases examining the rights of incompetent persons and the duties of surrogate decision makers.[110] This case requires us to look beyond the rights of a competent person to the rights of incompetent conservatees and the duties of conservators, but the principle just mentioned is a logical place to begin.

That a competent person has the right to refuse treatment is a statement both of common law and of state constitutional law. In its common law form, the principle is often traced to Union Pacific Railway Co. v. Botsford,[111] in which the United States Supreme Court wrote that "[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Applying this principle, the high court held that the plaintiff in a personal injury case was not required to submit to a surgical examination intended to reveal the extent of her injuries.[112] Courts in subsequent cases relied on the same principle to award damages for operations performed without the patient's consent. The landmark case is Schloendorff v. Society of New York Hospital,[113] in which Judge Cardozo wrote that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages." We adopted this principle in Cobbs v. Grant[114] adding that "the patient's consent to treatment, to be effective, must be an informed consent." Most recently, in Thor v. Superior Court,[115] we held that the common law right of a competent adult to refuse life-sustaining treatment extends even to a state prisoner; we thus absolved prison officials and medical personnel of any duty to provide artificial hydration and nutrition against the will of a quadriplegic prisoner who needed such treatment to survive.

The Courts of Appeal have found another source for the same right in the California Constitution's privacy clause.[116] The court in Bartling v. Superior Court[117] held that a competent adult with serious, probably incurable illnesses was entitled to have life-support equipment disconnected over his physicians' objection even though that would hasten his death. "The right of a competent adult patient to refuse medical treatment," the court explained, "has its origins in the constitutional right of privacy. This right is specifically guaranteed by the California Constitution[118] . . . . The constitutional right of privacy guarantees to the individual the freedom to choose to reject, or refuse to consent to, intrusions of his bodily integrity."[119] To the same effect is the decision in Bouvia v. Superior Court,[120] in which the court directed injunctive relief requiring a public hospital to comply with a competent, terminally ill patient's direction to remove a nasogastric feeding tube. "The right to refuse medical treatment," the court wrote, "is basic and fundamental. . . . Its exercise requires no one's approval. It is not merely one vote subject to being overridden by medical opinion."[121]

In Thor v. Superior Court,[122] as mentioned, we based our conclusion that a prisoner had the right to refuse life-sustaining treatment solely on the common law without also considering whether the state Constitution provided similar protection. But Thor does not reject the state Constitution as a basis for the right. More importantly, we have since Thor determined that the privacy clause does protect the fundamental interest in personal autonomy. "Where the case involves an obvious invasion of an interest fundamental to personal autonomy, e.g., freedom from involuntary sterilization or the freedom to pursue consensual familial relationships, a 'compelling interest' must be present to overcome the vital privacy interest."[123] In comparison with these examples, the competent adult's decision to refuse life-sustaining medical treatment must also be seen as fundamental.

Federal law.

Federal law has little to say about the competent person's right to refuse treatment, but what it does say is not to the contrary. The United States Supreme Court spoke provisionally to the point in Cruzan v. Director, Missouri Dept. of Health[124] At issue was the constitutionality of a Missouri law permitting a conservator to withhold artificial nutrition and hydration from a conservatee in a persistent vegetative state only upon clear and convincing evidence that the conservatee, while competent, had expressed the desire to refuse such treatment. The court concluded the law was constitutional. While the case thus did not present the issue, the court nevertheless acknowledged that "a competent person['s] . . . constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred"[125] from prior decisions holding that state laws requiring persons to submit to involuntary medical procedures must be justified by countervailing state interests. The "logic" of such cases would, the court thought, implicate a competent person's liberty interest in refusing artificially delivered food and water essential to life.[126] Whether any given state law infringed such a liberty interest, however, would have to be determined by balancing the liberty interest against the relevant state interests, in particular the state's interest in preserving life.[127]

In view of these authorities, the competent adult's right to refuse medical treatment may be safely considered established, at least in California.

The right to refuse survives incompetence if the patient complied with the statutory requirements.

The same right survives incapacity, in a practical sense, if exercised while competent pursuant to a law giving that act lasting validity. For some time, California law has given competent adults the power to leave formal directions for health care in the event they later become incompetent; over time, the Legislature has afforded ever greater scope to that power. The former Natural Death Act,[128] as first enacted in 1976, authorized competent adults to direct health care providers to withhold or withdraw life-sustaining procedures under very narrow circumstances only: specifically, in the event of an incurable condition that would cause death regardless of such procedures and where such procedures would serve only to postpone the moment of death. In findings accompanying the law, the Legislature expressly found "that adult persons have the fundamental right to control the decisions relating to the rendering of their own medical care"[129] and explained the law as giving lasting effect to that right: "In recognition of the dignity and privacy which patients have a right to expect, the Legislature hereby declares that the laws of the State of California shall recognize the right of an adult person to make a written directive instructing his physician to withhold or withdraw life-sustaining procedures in the event of a terminal condition."[130] In 1991, the Legislature amended the law to permit competent adults to refuse, in advance, life-sustaining procedures in the event of a "permanent unconscious condition," defined as an "irreversible coma or persistent vegetative state."[131] Intervening legislation also enabled a competent adult to execute a durable power of attorney authorizing an agent to "withhold[] or withdraw[] . . . health care . . . so as to permit the natural process of dying," and to make other health care decisions, in the event of the principal's incompetence.[132]

The California statute changed in 2000.

Effective July 1, 2000, the Health Care Decisions Law[133] gives competent adults extremely broad power to direct all aspects of their health care in the event they become incompetent. The new law, which repeals the former Natural Death Act and amends the durable power of attorney law, draws heavily from the Uniform Health-Care Decisions Act adopted in 1993 by the National Conference of Commissioners on Uniform State Laws.[134] Briefly, and as relevant here, the new law permits a competent person to execute an advance directive about "any aspect" of health care.[135] Among other things, a person may direct that life-sustaining treatment be withheld or withdrawn under conditions specified by the person and not limited to terminal illness, permanent coma, or persistent vegetative state. A competent person may still use a power of attorney for health care to give an agent the power to make health care decisions,[136] but a patient may also orally designate a surrogate to make such decisions by personally informing the patient's supervising health care provider.[137] Under the new law, agents and surrogates are required to make health care decisions "in accordance with the principal's individual health care instructions, if any, and other wishes to the extent known to the agent."[138]

These laws respect the decisions made when competent.

All of the laws just mentioned merely give effect to the decision of a competent person, in the form either of instructions for health care or the designation of an agent or surrogate for health care decisions. Such laws may accurately be described, as the Legislature has described them, as a means to respect personal autonomy by giving effect to competent decisions: "In recognition of the dignity and privacy a person has a right to expect, the law recognizes that an adult has the fundamental right to control the decisions relating to his or her own health care, including the decision to have life-sustaining treatment withheld or withdrawn."[139] This court made essentially the same point in Thor v. Superior Court,[140] where we described "the [former] Natural Death Act and other statutory provisions permitting an individual or designated surrogate to exercise conclusive control over the administration of life-sustaining treatment [as] evidenc[ing] legislative recognition that fostering self-determination in such matters enhances rather than deprecates the value of life."

Parens Patrie

In contrast, decisions made by conservators typically derive their authority from a different basis-the parens patriae power of the state to protect incompetent persons. Unlike an agent or a surrogate for health care, who is voluntarily appointed by a competent person, a conservator is appointed by the court because the conservatee "has been adjudicated to lack the capacity to make health care decisions."[141] In 1988, the court in Drabick,[142] confused these two distinct concepts-the voluntary act of a competent person and the state's parens patriae power-and on that questionable basis took to a novel conclusion the idea that a person's right to refuse treatment survives incompetence. Drabick figures prominently both in the legislative history of section 2355-the statute governing this case-and the parties' arguments. It therefore deserves close attention.

Drabick and the court of Appeals reliance on Drabick..

At issue in Drabick,[143] was a conservator's proposal to end the life of a conservatee by removing a nasogastric feeding tube. The formerly competent conservatee had been unconscious for five years in a persistent vegetative state; physicians opined he would never regain consciousness. While the conservatee had expressed informally his desire not to be kept alive by artificial life support systems, he had not left formal directions for his health care. Former Probate Code section 2355, subdivision (a)[144] gave the conservator "exclusive authority to give consent for such medical treatment . . . as the conservator in good faith based on medical advice determines to be necessary." The court construed this language as also giving the conservator, "by necessary implication, . . . power to withhold or withdraw consent to medical treatment under appropriate circumstances."[145] Treatment to sustain the life of a permanently unconscious person was not " 'necessary' " within the meaning of former section 2355, the court reasoned, "if it offers no reasonable possibility of returning the conservatee to cognitive life and if it is not otherwise in the conservatee's best interests, as determined by the conservator in good faith."[146]

Counsel appointed to represent the conservatee in Drabick,[147] argued that the state's interest in preserving life justified the court in limiting the conservator's powers. The court disagreed. Rather than presenting a conflict between the conservator's decision to terminate life support and the state's interest in preserving life, the Drabick court thought the case was more appropriately viewed as presenting a conflict between two rights belonging to the conservatee: "Both the fundamental right to life-to continue receiving treatment-and the right to terminate unwanted treatment deserve consideration. Someone acting in [the conservatee's] best interests can and must choose between them."[148] Viewing the case in this way, the court was "convinced that [it would] deprive [the conservatee] of a fundamental right" were it to bar the conservator from withholding treatment.[149] The court candidly acknowledged that "to claim [a permanently unconscious conservatee's] 'right to choose' survives incompetence is a legal fiction at best."[150] Indeed, such a person's "noncognitive state prevents him from choosing anything."[151] Nevertheless, the court concluded, "incompetence does not cause the loss of a fundamental right from which the incompetent person can still benefit" through its vicarious exercise by a conservator.[152] As precedent for this analysis, the Drabick court relied on Conservatorship of Valerie N.[153] in which this court held unconstitutional a statute[154] barring use of the conservator's statutory powers to authorize sterilization of wards and conservatees. Just as this court in Valerie N. permitted conservators of developmentally disabled women to exercise vicariously their conservatees' right to choose sterilization, the Drabick court explained, the conservator of a persistently vegetative conservatee may exercise vicariously the conservatee's right to refuse medical treatment.[155] (FN9)[156]

Having expressly recognized the "fiction[al]" aspect of its analysis[157] and seeking perhaps to place its conclusion on firmer ground, the court in Drabick offered this alternative rationale: "In the years since the Quinlan[158] decision," the Drabick court wrote, "most courts have adopted the formula that a patient's 'right to choose' or 'right to refuse' medical treatment survives incompetence. It would be more accurate to say that incompetent patients retain the right to have appropriate medical decisions made on their behalf. An appropriate medical decision is one that is made in the patient's best interests, as opposed to the interests of the hospital, the physicians, the legal system, or someone else."[159] We do not question the Drabick court's conclusion that incompetent persons have a right, based in the California Constitution, to appropriate medical decisions that reflect their own interests and values.[160] But the right to an appropriate decision by a court-appointed conservator does not necessarily equate with the conservatee's right to refuse treatment, or obviously take precedence over the conservatee's right to life or the state's interest in preserving life.

No published decision in this state has rejected the Drabick court's conclusions. Seven months after Drabick, the court in Conservatorship of Morrison,[161] viewed Drabick as having settled the question whether former section 2355 empowered a conservator to end the life of a persistently vegetative conservatee by withholding artificial nutrition and hydration. But neither, until the decision presently on review, has the holding in Drabick been extended to cases involving conservatees other than those in persistent vegetative states. This, almost certainly, is because the Drabick court strictly limited its decision to such persons. The "opinion's reasoning," the court wrote, "is predicated upon its subject being a patient for whom there is no reasonable hope of a return to cognitive life. We have not considered any other case, and this opinion would not support a decision to forego treatment if this factual predicate could not be satisfied." [162] Although the court did not explain how its reasoning was predicated on the conservatee's permanently unconscious state, the decision's self-imposed limitation avoids or mitigates a serious constitutional problem: A person whose permanent unconsciousness prevents him from perceiving that artificial hydration and nutrition are being withdrawn arguably has a more attenuated interest in avoiding that result than a person who may consciously perceive the effects of dehydration and starvation.

The statute. §2355.

2. Section 2355

The ultimate focus of our analysis, as mentioned at the outset, must be section 2355, the statute under which the conservator claims the authority to end the conservatee's life. The statute's history indicates that the Law Revision Commission, which drafted the current version, was aware of and intended to incorporate some, but not all, of the Drabick[163] court's construction of the former statute.

As originally enacted in 1979, and at the time the lower courts ruled in this case, section 2355 provided: "If the conservatee has been adjudicated to lack the capacity to give informed consent for medical treatment, the conservator has the exclusive authority to give consent for such medical treatment to be performed on the conservatee as the conservator in good faith based on medical advice determines to be necessary and the conservator may require the conservatee to receive such medical treatment, whether or not the conservatee objects."[164]

This language arguably was broad enough to cover the entire range of medical decisions a conservator might be called upon to make. Historical evidence is lacking, however, that the Legislature in 1979 actually contemplated that the statute would be understood as authorizing a conservator to deliberately end the life of a conservatee by withholding artificially delivered food and water. Such authority, if it indeed existed, would have been merely implicit, as a consequence of the statute's broad language. The claim that section 2355 conferred that authority was first considered and accepted in 1988 by the court in Drabick.[165]

The Drabick court also read former section 2355 as severely restricting the role of courts in supervising conservators' treatment decisions. "[W]e do not believe," the court wrote, "that it is the [trial] court's role to substitute its judgment for the conservator's. Instead, when the conservator or another interested person has requested the court's approval the court should confine its involvement to ensuring that the conservator has made the type of decision for which the Probate Code expressly calls: a 'good faith' decision 'based on medical advice' whether treatment is 'necessary.' "[166] The required decision, the court explained, is the conservator's assessment of the conservatee's best interests. While acknowledging that the conservator would be bound by the conservatee's formal health care directions in a durable power of attorney or living will,[167] the court rejected "the different idea . . . that [the conservatee's] own prior informal statements compel either the continuation or cessation of treatment in a particular case."[168] Instead, "the conservatee's prior statements [merely] inform the decision of the conservator, who must vicariously exercise the conservatee's rights. Such statements do not in themselves amount to the exercise of a right. The statute gives the conservator the exclusive authority to exercise the conservatee's rights, and it is the conservator who must make the final treatment decision regardless of how much or how little information about the conservatee's preferences is available. There is no necessity or authority," the court concluded, "for adopting a rule to the effect that the conservatee's desire to have medical treatment withdrawn must be proved by clear and convincing evidence or another standard. Acknowledging that the patient's expressed preferences are relevant, it is enough for the conservator, who must act in the conservatee's best interests, to consider them in good faith."[169]

In 1990, the Legislature repealed and reenacted former section 2355 without change while reorganizing the Probate Code. But in 1999, section 2355 changed significantly with the Legislature's adoption of the Health Care Decisions Law.[170] That law took effect on July 1, 2000, about four months after the Court of Appeal filed the opinion on review. Many of the new law's provisions, as already noted, are the same as, or drawn from, the Uniform Health-Care Decisions Act.[171] Section 2355, as a statute addressing medical treatment decisions, was revised to conform to the new law.

The main purpose of the Health Care Decisions Law is to provide "procedures and standards" governing "health care decisions to be made for adults at a time when they are incapable of making decisions on their own and [to] provide[] mechanisms for directing their health care in anticipation of a time when they may become incapacitated."[172] The core provision of the new law, which comes directly from the Uniform Health-Care Decisions Act, sets out uniform standards for the making of health care decisions by third parties. The language embodying this core provision now appears in statutes governing decisions by conservators,[173] agents,[174] and surrogates.[175] This language is set out below in italics, as it appears in the context of section 2355:

"If the conservatee has been adjudicated to lack the capacity to make health care decisions, the conservator has the exclusive authority to make health care decisions for the conservatee that the conservator in good faith based on medical advice determines to be necessary. The conservator shall make health care decisions for the conservatee in accordance with the conservatee's individual health care instructions, if any, and other wishes to the extent known to the conservator. Otherwise, the conservator shall make the decision in accordance with the conservator's determination of the conservatee's best interest. In determining the conservatee's best interest, the conservator shall consider the conservatee's personal values to the extent known to the conservator. The conservator may require the conservatee to receive the health care, whether or not the conservatee objects. In this case, the health care decision of the conservator alone is sufficient and no person is liable because the health care is administered to the conservatee without the conservatee's consent. For the purposes of this subdivision, 'health care' and 'health care decision' have the meanings provided in Sections 4615 and 4617, respectively."[176]

The last sentence of section 2355, subdivision (a), set out above, incorporates definitional provisions of the Health Care Decisions Law. Of these, section 4615 defines " '[h]ealth care' " as "any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a patient's physical or mental condition." Section 4617 defines " '[h]ealth care decision' " as "a decision made by a patient or the patient's agent, conservator, or surrogate, regarding the patient's health care, including the following:

(a) Selection and discharge of health care providers and institutions.

(b) Approval or disapproval of diagnostic tests, surgical procedures, and programs of medication.

(c) Directions to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation."

These revisions to section 2355, like the remainder of the Health Care Decisions Law, were drafted by the Law Revision Commission. In its official comment to section 2355, the commission wrote that subdivision (a), as amended, "is consistent with . . . Drabick[177] . . . ."[178] In the comment, the commission also set out important passages from the Drabick opinion, presumably as indicative of the drafters' intent. Indeed, the new law is consistent with Drabick in recognizing the power of conservators to refuse consent to health care, even health care necessary to sustain life, and in treating the decision to withhold artificial nutrition and hydration as a health care decision.

In other respects, the current version of section 2355 departs from the decision in Drabick.[179] The Drabick court viewed the informally expressed wishes of the incompetent conservatee simply as a factor for the conservator to consider in determining the conservatee's best interest.[180] In contrast to Drabick, section 2355 assigns dispositive weight to the conservatee's informally expressed wishes, when known. Under the statute, "[t]he conservator shall make health care decisions for the conservatee in accordance with the conservatee's individual health care instructions, if any, and other wishes to the extent known to the conservator."[181] The best interest standard applies only when the conservatee's wishes are not known, as a fall-back standard embodied in the statute's next sentence:

"Otherwise, the conservator shall make the decision in accordance with the conservator's determination of the conservatee's best interest. In determining the conservatee's best interest, the conservator shall consider the conservatee's personal values to the extent known to the conservator."[182]

B. The Present Case

The positions of the parties.

This background illuminates the parties' arguments, which reduce in essence to this: The conservator has claimed the power under section 2355, as she interprets it, to direct the conservatee's health care providers to cease providing artificial nutrition and hydration. In opposition, the objectors have contended the statute violates the conservatee's rights to privacy and life under the facts of this case if the conservator's interpretation of the statute is correct.(FN10)[183]

A few points of the conservator's argument may be taken for granted. Certainly the "health care decisions" that section 2355 empowers a conservator to make include, under appropriate circumstances, the decision "to provide, withhold, or withdraw artificial nutrition and hydration and all other forms of health care . . . ."[184] Section 4617, which defines "health care decisions" for purposes of section 2355, says precisely that. Furthermore, as the conservator also argues, the conditions under which such a decision might be appropriate must be determined by reference to the standards for decisionmaking set out in section 2355. The next step in the analysis is to apply the dual standard set out in section 2355 to the facts of the case.

The patient’s wishes.

1. The primary standard: a decision in accordance with the conservatee's wishes

The conservator asserts she offered sufficient evidence at trial to satisfy the primary statutory standard, which contemplates a decision "in accordance with the conservatee's . . . wishes . . . ."[185] The trial court . . . determined the evidence on this point was insufficient. The conservator did "not [meet] her duty and burden," the court expressly found, "to show by clear and convincing evidence that [the] conservatee . . . , who is not in a persistent vegetative state nor suffering from a terminal illness would, under the circumstances, want to die." To be sure, the court made this finding under former section 2355 rather than the current version-and not because the former statute expressly called for such a finding but under the belief that case law required it. But the finding's relevance under the new statute cannot easily be dismissed: The new statute expressly requires the conservator to follow the conservatee's wishes, if known.[186]

The court declares that the legislature did not know what it was doing, the commentary is too long for the legislature to read, and the legislature did not intend to do what the commentary says it intended to do.

The conservator argues the Legislature understood and intended that the low preponderance of the evidence standard would apply. Certainly this was the Law Revision Commission's understanding.[187] On this subject, the commission wrote: "[Section 2355] does not specify any special evidentiary standard for the determination of the conservatee's wishes or best interest. Consequently, the general rule applies: the standard is by preponderance of the evidence. Proof is not required by clear and convincing evidence."[188] We have said that "[e]xplanatory comments by a law revision commission are persuasive evidence of the intent of the Legislature in subsequently enacting its recommendations into law."[189] Nevertheless, one may legitimately question whether the Legislature can fairly be assumed to have read and endorsed every statement in the commission's 280-page report on the Health Care Decisions Law.[190]

The objectors, in opposition, argue that section 2355 would be unconstitutional if construed to permit a conservator to end the life of a conscious conservatee based on a finding by the low preponderance of the evidence standard that the latter would not want to live. We see no basis for holding the statute unconstitutional on its face. We do, however, find merit in the objectors' argument. We therefore construe the statute to minimize the possibility of its unconstitutional application by requiring clear and convincing evidence of a conscious conservatee's wish to refuse life-sustaining treatment when the conservator relies on that asserted wish to justify withholding life-sustaining treatment. This construction does not entail a deviation from the language of the statute and constitutes only a partial rejection of the Law Revision Commission's understanding that the preponderance of the evidence standard would apply; we see no constitutional reason[191] to apply the higher evidentiary standard to the majority of health care decisions made by conservators not contemplating a conscious conservatee's death. Our reasons are as follows:

At the time the Legislature was considering the present version of section 2355, no court had interpreted any prior version of the statute as permitting a conservator deliberately to end the life of a conscious conservatee. Even today, only the decision on review so holds. The court in Drabick,[192] as we have seen, found sufficient authority in the statute to confirm a conservator's decision that artificial hydration and nutrition was not in the best interest of a permanently unconscious, persistently vegetative conservatee. The Drabick court, however, expressly limited its decision to cases involving conservatees in the same medical condition and stated that its reasoning was, in some unexplained way, predicated on such facts.[193] While the conservator embraces Drabick in other respects, the authoring court, she writes, "was flat-out wrong to limit the applicability of [section] 2355, of its statutory analysis, and of its constitutional insights to permanently unconscious conservatees as these limitations ignore the plain language of the statute as well as logic." To the contrary, by limiting its decision in this way the Drabick court thereby avoided the constitutional problem we confront here, namely, the propriety of a decision to withhold artificial nutrition and hydration from a conscious conservatee who, while incompetent, may nevertheless subjectively perceive the effects of dehydration and starvation.

In amending section 2355 in 1999, neither the Legislature, nor the Law Revision Commission in its official report to the Legislature, alluded to the possibility that the statute might be invoked to justify withholding artificial nutrition and hydration from a conscious patient. The conservator sees evidence of specific legislative authority for such a decision in the findings that accompanied the Health Care Decisions Law, but we do not. These findings, which first entered California law as part of the former Natural Death Act,[194] were revised and recodified in the new legislation as Probate Code section 4650.(FN11)[195] The Law Revision Commission in its report accurately explained the proposed change in the findings as follows:

"The earlier legislative findings were limited to persons with a terminal condition or permanent unconscious condition. This restriction is not continued here in recognition of the broader scope of this division and the development of case law since enactment of the original Natural Death Act in 1976."[196]

From this history, the conservator deduces that the commission, and by inference the Legislature, intended to give conservators the power she has sought in this case to end a conscious conservatee's life. Considering, however, the subject's importance and potentially controversial nature, it seems extremely unlikely that the Legislature intended to regulate the subject through the deletion of a few limiting words from a legislative finding. In any event, the commission's reference to "the broader scope"[197] of the new law more plausibly refers simply to the fact that the new law, unlike the former Natural Death Act, permits a competent person to provide by advance directive for virtually all aspects of his or her future health care rather than, as previously, simply the withdrawal of life support under narrowly circumscribed facts. Certainly the commission's reference to "the development of case law" since 1976 cannot be understood as suggesting that conservators may end the life of conscious patients. At the time the commission wrote, no California case had addressed the subject. Moreover, of the four cases the commission cites, two involved competent patients,[198] and two concerned patients in persistent vegetative states;[199] none involved withdrawal of life support from a conscious but incompetent patient. One also finds in the commission's lengthy report, albeit in a different comment, the cryptic statement that the amended version of section 2355 is "consistent with . . . Drabick."[200] But Drabick was expressly limited to patients in persistent vegetative states.[201] Consistency with Drabick on this point does not support the conservator's position. For all these reasons, we are not convinced the Legislature gave any consideration to the particular problem before us in this case. The prefatory note and comments to the Uniform Health-Care Decisions Act are also silent on the point.

Notwithstanding the foregoing, one must acknowledge that the primary standard for decisionmaking set out in section 2355 does articulate what will in some cases form a constitutional basis for a conservator's decision to end the life of a conscious patient: deference to the patient's own wishes. This standard also appears in the new provisions governing decisions by agents and surrogates designated by competent adults.[202] As applied in that context, the requirement that decisions be made "in accordance with the principal's individual health care instructions . . . and other wishes"[203] merely respects the principal-agent relationship and gives effect to the properly expressed wishes of a competent adult. Because a competent adult may refuse life-sustaining treatment, it follows that an agent properly and voluntarily designated by the principal may refuse treatment on the principal's behalf unless, of course, such authority is revoked.[204]

The only apparent purpose of requiring conservators to make decisions in accordance with the conservatee's wishes, when those wishes are known, is to enforce the fundamental principle of personal autonomy. The same requirement, as applied to agents and surrogates freely designated by competent persons, enforces the principles of agency. A reasonable person presumably will designate for such purposes only a person in whom the former reposes the highest degree of confidence. A conservator, in contrast, is not an agent of the conservatee, and unlike a freely designated agent cannot be presumed to have special knowledge of the conservatee's health care wishes. A person with "sufficient capacity . . . to form an intelligent preference" may nominate his or her own conservator,[205] but the nomination is not binding because the appointment remains "solely in the discretion of the court"[206] Furthermore, while statutory law gives preference to spouses and other persons related to the conservatee,[207] who might know something of the conservatee's health care preferences, the law also permits the court in its sole discretion to appoint unrelated persons and even public conservators.[208] While it may be constitutionally permissible to assume that an agent freely designated by a formerly competent person to make all health care decisions, including life-ending ones, will resolve such questions "in accordance with the principal's . . . wishes"[209] one cannot apply the same assumption to conservators and conservatees.[210] For this reason, when the legal premise of a conservator's decision to end a conservatee's life by withholding medical care is that the conservatee would refuse such care, to apply a high standard of proof will help to ensure the reliability of the decision.

The function of a standard of proof is to instruct the fact finder concerning the degree of confidence our society deems necessary in the correctness of factual conclusions for a particular type of adjudication, to allocate the risk of error between the litigants, and to indicate the relative importance attached to the ultimate decision. [211] Thus, "the standard of proof may depend upon the 'gravity of the consequences that would result from an erroneous determination of the issue involved.' "[212] The default standard of proof in civil cases is the preponderance of the evidence.[213] (FN12)[214] Nevertheless, courts have applied the clear and convincing evidence standard when necessary to protect important rights.

We applied the clear and convincing evidence standard, for example, in Conservatorship of Valerie N.[215] to ensure that a conservator's decision to authorize sterilization of a developmentally disabled conservatee was truly in the latter's best interests. We have also applied the clear and convincing evidence standard to findings necessary to terminate parental rights[216] and to findings supporting the discipline of judges.[217] The Courts of Appeal have required clear and convincing evidence of a person's inability to provide for his or her personal needs as a prerequisite to the appointment of a conservator,[218] and of a conservatee's incompetence to accept or reject treatment as a prerequisite to permitting involuntary electroconvulsive therapy.[219] Similarly, the United States Supreme Court has applied the clear and convincing evidence standard in cases implicating fundamental liberty interests protected by the Fourteenth Amendment, such as proceedings to terminate parental rights,[220] to commit to a mental hospital,[221] and to deport.[222]

In this case, the importance of the ultimate decision and the risk of error are manifest. So too should be the degree of confidence required in the necessary findings of fact. The ultimate decision is whether a conservatee lives or dies, and the risk is that a conservator, claiming statutory authority to end a conscious conservatee's life "in accordance with the conservatee's . . . wishes"[223] by withdrawing artificial nutrition and hydration, will make a decision with which the conservatee subjectively disagrees and which subjects the conservatee to starvation, dehydration and death. This would represent the gravest possible affront to a conservatee's state constitutional right to privacy, in the sense of freedom from unwanted bodily intrusions, and to life. While the practical ability to make autonomous health care decisions does not survive incompetence,(FN13)[224] the ability to perceive unwanted intrusions may. Certainly it is possible, as the conservator here urges, that an incompetent and uncommunicative but conscious conservatee might perceive the efforts to keep him alive as unwanted intrusion and the withdrawal of those efforts as welcome release. But the decision to treat is reversible. The decision to withdraw treatment is not. The role of a high evidentiary standard in such a case is to adjust the risk of error to favor the less perilous result. The high court has aptly explained the benefits of a high evidentiary standard in a similar context: "An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction."(FN14)[225] [226]

In conclusion, to interpret section 2355 to permit a conservator to withdraw artificial nutrition and hydration from a conscious conservatee based on a finding, by a mere preponderance of the evidence, that the conservatee would refuse treatment creates a serious risk that the law will be unconstitutionally applied in some cases, with grave injury to fundamental rights. Under these circumstances, we may properly ask whether the statute may be construed in a way that mitigates the risk. "If a statute is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional in whole or in part, or raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality, even though the other construction is equally reasonable.[227] The basis of this rule is the presumption that the Legislature intended, not to violate the Constitution, but to enact a valid statute within the scope of its constitutional powers."[228] Here, where the risk to conservatees' rights is grave and the proposed construction is consistent with the language of the statute, to construe the statute to avoid the constitutional risk is an appropriate exercise of judicial power.

We base our decision on California law. It is nevertheless worth mentioning that no decision of which we are aware has approved a conservator's or guardian's proposal to withdraw artificial nutrition and hydration from a conscious conservatee or ward.

Discussion of Martin

The highest courts of three other states have spoken to the matter. Of these decisions, In re Martin[229] is most like the case before us. Conservatee Michael Martin, like the conservatee here, suffered a head injury in an automobile accident that left him minimally conscious, unable to walk or talk, and dependent on artificial nutrition and hydration. At his highest level of functioning, Michael could move his leg or arm in response to a therapist's request and move his head in response to questions seeking a yes or no answer. On one occasion he indicated "no" in response to the question whether there were ever times when he felt he did not want to go on living; the witnesses, however, disagreed about the consistency and significance of Michael's responses to questions.[230] The Supreme Court of Michigan, applying that state's common law, did not permit the conservator, Michael's wife, to withdraw artificial nutrition and hydration because clear and convincing evidence did not show he had expressed a desire to refuse such treatment under his present circumstances. The court adopted the clear and convincing standard for essentially the same reasons we do so here, namely, to ensure that a decision to refuse treatment drawing its legal justification from the conservatee's right to make autonomous medical decisions actually enjoys the conservatee's approval,[231] and to impose the risk of an erroneous decision on those seeking to withdraw treatment in view of the decision's grave consequences.[232] "Only when the patient's prior statements," the court held, "clearly illustrate a serious, well thought out, consistent decision to refuse treatment under these exact circumstances, or circumstances highly similar to the current situation, should treatment be refused or withdrawn."[233] Michael's wife testified that he had demanded she promise not to let him live "like a vegetable" or "on machines" in reaction to movies depicting persons who were vegetative, had terminal illnesses, or could not care for themselves because of serious disabilities.[234] Michael's coworkers also testified that he had expressed disdain for living in a vegetative state, but they did not understand him as having referred to his present, minimally conscious condition. Considering all this evidence, the court did not find clear and convincing evidence of a "decision to refuse life-sustaining medical treatment under the present circumstances."[235]

Discussion of Edna M.F.

The Supreme Courts of Wisconsin and New Jersey have also refused permission, under their own states' common law, to withhold artificial nutrition and hydration from incompetent but conscious patients. The Wisconsin court required a "clear statement" of the conservatee's desires, proved by a preponderance of the evidence.[236] The court described the necessary "clear statement" as an exceptional requirement, not applicable to "other, less permanent, decisions," and justified by "the interest of the state in preserving human life and the irreversible nature of the decision to withdraw nutrition from a person."[237] Ruling in the case of a woman with Alzheimer's dementia, the court did not find a sufficiently clear statement of the desire to refuse treatment in her pre-dementia comment that she " 'would rather die of cancer than lose [her] mind' "; she had not, the court noted, said anything specifically about withdrawing life-sustaining medical treatment.[238] The court also specifically refused to extend to conscious patients its earlier decision giving conservators, as a matter of law, the power to withhold life-sustaining treatment from persistently vegetative patients.[239]

Discussion of Conroy.

The Supreme Court of New Jersey, articulating that state's common law, adopted a fairly complex three-part test.[240] Under a "pure-objective test"[241] essentially a best interests test, the court would not require any evidence of the patient's wishes when the patient was in such "recurring, unavoidable and severe pain . . . that the effect of administering life-sustaining treatment would be inhumane."[242] Under a "limited-objective test"[243] the court would permit treatment to be withdrawn for those in "unavoidable pain" of less severity when there is "some trustworthy evidence" the patient would have refused treatment and "it is clear that the burdens of the patient's continued life with the treatment outweigh the benefits of that life for him."[244] In other circumstances, however, the court would permit treatment to be withdrawn only "when it is clear that the particular patient would have refused the treatment under the circumstances involved."[245] That standard, the court explained, "is a subjective one, consistent with the notion that the right that we are seeking to effectuate is a very personal right to control one's own life. The question is not what a reasonable or average person would have chosen to do under the circumstances but what the particular patient would have done if able to choose for himself."[246] Under this "subjective test," the court did not find a sufficiently " 'clear' showing of intent" to refuse treatment in a bedridden, severely demented and unresponsive woman's history of scorning medicine and refusing hospitalization.[247]

The requirement of a clear statement.

About these three decisions one point deserves emphasis: In each case, the court required a clear statement by the patient of the intent to refuse life-sustaining treatment when a conservator or guardian proposed to withdraw treatment from a conscious conservatee or ward in order to effectuate the latter's own right to refuse treatment.[248] As we have explained, the only apparent purpose of California's statutory language requiring a decision "in accordance with the conservatee's . . . wishes"[249] is to enforce the fundamental principle of personal autonomy, in the same way that the identical language in other provisions[250] governing agents and surrogates freely designated by competent persons enforces the principles of agency. While we place no great emphasis on the out-of-state cases, they nevertheless support the fundamental principles that underlie our conclusions, including the imposition of a high standard of proof.

Amicus

One amicus curiae argues that "[i]mposing so high an evidentiary burden [i.e., clear and convincing evidence] would . . . frustrate many genuine treatment desires-particularly the choices of young people, who are less likely than older people to envision the need for advanced directives, or poor people, who are less likely than affluent people to have the resources to obtain formal legal documents." But the Legislature has already accommodated this concern in large part by permitting patients to nominate surrogate decision makers by orally informing a supervising physician[251] and by giving effect to specific oral health care instructions.[252] To go still farther, by giving conclusive effect to wishes inferred from informal, oral statements proved only by a preponderance of the evidence, may serve the interests of incompetent persons whose wishes are correctly determined, but to do so also poses an unacceptable risk of violating other incompetent patients' rights to privacy and life, as already explained. To the argument that applying a high standard of proof in such cases impermissibly burdens the right to determine one's own medical treatment, one need only repeat the United States Supreme Court's response to the same assertion: "The differences between the choice made by a competent person to refuse medical treatment, and the choice made for an incompetent person by someone else to refuse medical treatment, are so obviously different that the State is warranted in establishing rigorous procedures for the latter class of cases which do not apply to the former class."[253]

More Amici

On the same general subject, a group of amici curiae contends as follows: "If this court decides that physicians may not follow a surrogate's instruction to withdraw life-sustaining treatment unless the evidence of the patient's wishes satisfies a 'clear and convincing' standard of proof, many physicians will refuse to do so without judicial approval." But this will not be a valid concern, as we have already explained, in the case of patients who have personally appointed agents or surrogates for health care decisions or left formal instructions for health care, nor in the vast majority of health care decisions, i.e., those less weighty than the decision to withdraw life-sustaining treatment from a conscious patient. The constitutional considerations on which we rely justify applying the clear and convincing evidence standard only when a conservator seeks to withdraw life-sustaining treatment from a conscious, incompetent patient who has not left legally cognizable instructions for health care or appointed an agent or surrogate for health care decisions.

The case at bar.

In the case before us, the trial court found that the conservator failed to show "by clear and convincing evidence that conservatee Robert Wendland, who is not in a persistent vegetative state nor suffering from a terminal illness would, under the circumstances, want to die." The conservator does not appear to challenge the trial court's finding on this point; her challenge, rather, is to the trial court's understanding of the law. For these reasons, we need not review the sufficiency of the evidence to support the finding. Nevertheless, given the exceptional circumstances of this case, we note that the finding appears to be correct.

The "clear and convincing evidence" test requires a finding of high probability, based on evidence " ' "so clear as to leave no substantial doubt" [and] "sufficiently strong to command the unhesitating assent of every reasonable mind." ' "[254] Applying that standard here, we ask whether the evidence the conservatee would have refused treatment under the circumstances of this case has that degree of clarity, bearing in mind that what we are asking, in essence, is whether the conservatee would actually have wished to die.

On this point the trial court wrote: "[T]he testimony adduced focuses upon two pre-accident conversations during which the conservatee allegedly expressed a desire not to live like a 'vegetable.' These two conversations do not establish by clear and convincing evidence that the conservatee would desire to have his life-sustaining medical treatment terminated under the circumstances in which he now finds himself. One of these conversations allegedly occurred when the conservatee was apparently recovering from a night's bout of drinking. The other alleged conversation occurred following the loss of conservatee's father-in-law, with whom he was very close. The court finds that neither of these conversations reflect an exact 'on all-fours' description of conservatee's present medical condition. More explicit direction than just 'I don't want to live like a vegetable' is required in order to justify a surrogate decision-maker terminating the life of . . . someone who is not in a PVS [persistent vegetative state]." We agree with the trial court's assessment of the evidence. That assessment is essentially in accord with the only case directly on point, in which the Michigan Supreme Court found no clear and convincing evidence of a desire to refuse treatment under very similar facts.[255] We add to the trial court's assessment only that Rose acknowledged Robert did not describe the precise condition in which he later found himself and that, while experts dispute the consistency and accuracy of Robert's responses to questions, it is difficult to ignore the fact that he declined to answer the question "Do you want to die?" while giving facially plausible "yes" or "no" answers to a variety of other questions about his wishes. On this record, we see no reason to hold that the evidence does not support the trial court's finding.

2. The best interest standard

Having rejected the conservator's argument that withdrawing artificial hydration and nutrition would have been "in accordance with the conservatee's . . . wishes"[256] we must next consider her contention that the same action would have been proper under the fall-back best interest standard. Under that standard, "the conservator shall make the decision in accordance with the conservator's determination of the conservatee's best interest. In determining the conservatee's best interest, the conservator shall consider the conservatee's personal values to the extent known to the conservator."[257] The trial court, as noted, ruled the conservator had the burden of establishing that the withdrawal of artificially delivered nutrition and hydration was in the conservatee's best interest, and had not met that burden.

Here, as before, the conservator argues that the trial court applied too high a standard of proof. This follows, she contends, from section 2355, which gives her as conservator "the exclusive authority" to give consent for such medical treatment as she "in good faith based on medical advice determines to be necessary"[258] and from the decision in Drabick,[259] which emphasized that a court should not substitute its judgment for the conservator's. The legislative findings to the Health Care Decisions Law, the conservator notes, declare that "[i]n the absence of controversy, a court is normally not the proper forum in which to make health care decisions, including decisions regarding life-sustaining treatment"[260] similarly, the Law Revision Commission has explained that "[c]ourt control or intervention in this process is neither required by statute, nor desired by the courts."[261] Based on these statements, the conservator argues the trial court has no power other than to verify that she has made the decision for which the Probate Code expressly calls: a "good faith" decision "based on medical advice" and "consider[ing] the conservatee's personal values" whether treatment is "necessary" in the conservatee's "best interest."[262] The trial court, as noted, rejected the conservator's assessment of the conservatee's best interest but nevertheless found by clear and convincing evidence that she had acted "in good faith, based on medical evidence and after consideration of the conservatee's best interests, including his likely wishes, based on his previous statements." This finding, the conservator concludes, should end the litigation as a matter of law in her favor.

The conservator's understanding of section 2355 is not correct. To be sure, the statute provides that "the conservator shall make the decision in accordance with the conservator's determination of the conservatee's best interest."[263] But the conservator herself concedes the court must be able to review her decision for abuse of discretion. This much, at least, follows from the conservator's status as an officer of the court subject to judicial supervision. While the assessment of a conservatee's best interest belongs in the first instance to the conservator, this does not mean the court must invariably defer to the conservator regardless of the evidence.

The legislature didn’t mean it. The language can’t be taken literally. The California Supreme Court alters the requirement to avoid grave injury to the rights of the conscious incompetent.

In the exceptional case where a conservator proposes to end the life of a conscious but incompetent conservatee, we believe the same factor that principally justifies applying the clear and convincing evidence standard to a determination of the conservatee's wishes also justifies applying that standard to a determination of the conservatee's best interest: The decision threatens the conservatee's fundamental rights to privacy and life. While section 2355 is written with sufficient breadth to cover all health care decisions, the Legislature cannot have intended to authorize every conceivable application without meaningful judicial review.[264] Taken to its literal extremes, the statute would permit a conservator to withdraw health care necessary to life from any conservatee who had been adjudicated incompetent to make health care decisions, regardless of the degree of mental and physical impairment, and on no greater showing than that the conservator in good faith considered treatment not to be in the conservatee's best interest.[265] The result would be to permit a conservator freely to end a conservatee's life based on the conservator's subjective assessment, albeit "in good faith [and] based on medical advice"[266] that the conservatee enjoys an unacceptable quality of life. We find no reason to believe the Legislature intended[267] section 2355 to confer power so unlimited and no authority for such a result in any judicial decision. Under these circumstances, we may properly construe the statute to require proof by clear and convincing evidence to avoid grave injury to the fundamental rights of conscious but incompetent conservatees.

We need not in this case attempt to define the extreme factual predicates that, if proved by clear and convincing evidence, might support a conservator's decision that withdrawing life support would be in the best interest of a conscious conservatee. Here, the conservator offered no basis for such a finding other than her own subjective judgment that the conservatee did not enjoy a satisfactory quality of life and legally insufficient evidence to the effect that he would have wished to die. On this record, the trial court's decision was correct.

III. CONCLUSION

Conclusion

For the reasons set out above, we conclude the superior court correctly required the conservator to prove, by clear and convincing evidence, either that the conservatee wished to refuse life-sustaining treatment or that to withhold such treatment would have been in his best interest; lacking such evidence, the superior court correctly denied the conservator's request for permission to withdraw artificial hydration and nutrition. We emphasize, however, that the clear and convincing evidence standard does not apply to the vast majority of health care decisions made by conservators under section 2355. Only the decision to withdraw life-sustaining treatment, because of its effect on a conscious conservatee's fundamental rights, justifies imposing that high standard of proof. Therefore, our decision today affects only a narrow class of persons: conscious conservatees who have not left formal directions for health care and whose conservators propose to withhold life-sustaining treatment for the purpose of causing their conservatees' deaths. Our conclusion does not affect permanently unconscious patients, including those who are comatose or in a persistent vegetative state,[268] persons who have left legally cognizable instructions for health care,[269] persons who have designated agents or other surrogates for health care,[270] or conservatees for whom conservators have made medical decisions other than those intended to bring about the death of a conscious conservatee.

The result. [The real result is that Robert is dead and the case is moot.]

The decision of the Court of Appeal is reversed.

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