Thor v. Superior Court of Solano County, 5 Cal. 4th 725, 855 P.2d 375, 21 Cal. Rptr. 2d 357 (Cal. 07/26/1993)

[1] SUPREME COURT OF CALIFORNIA


[2] No. S026393


[3] 1993, 5 Cal. 4th 725; 21 Cal. Rptr. 2d 357; 855 P.2d 375


[4] Decided: July 26, 1993.


[5] DANIEL THOR, PETITIONER,
v.
THE SUPERIOR COURT OF SOLANO COUNTY, RESPONDENT; HOWARD ANDREWS, REAL PARTY IN INTEREST.


[6] Superior Court of Solano County, No. 5360, Dennis Bunting, Judge.


[7] Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Kenneth C. Young, Assistant Attorney General, Bruce M. Slavin, Morris Lenk, George D. Prince and Robert R. Granucci, Deputy Attorneys General, for Petitioner.


[8] No appearance for Respondent.


[9] Steven Fama, under appointment by the Supreme Court, for Real Party in Interest.


[10] Catherine I. Hanson and Alice P. Mead as Amici Curiae.


[11] Opinion by Arabian, J., expressing the unanimous view of the court.


[12] Arabian


[5 Cal4th Page 731]


[13] More than a century ago, the United States Supreme Court declared, "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. . . . 'The right to one's person may be said to be a right of complete immunity: to be let alone.' [Citation.]" (Union Pacific Railway Co. v. Botsford (1891) 141 U.S. 250, 251 [35 L.Ed. 734, 737, 11 S.Ct. 1000].) Speaking for the New York Court of Appeals, Justice Benjamin Cardozo echoed this precept of personal autonomy in observing, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body . . .." (Schloendorff v. Society of New York Hospital (1914) 211 N.Y. 125 [105 N.E. 92, 93], overruled on other grounds in Bing v. Thunig (1957) 2 N.Y.2d 656 [163 N.Y.S.2d 3, 143 N.E.2d 3].) And over two decades ago, Justice Mosk reiterated the same principle for this court: "[A] person of adult years and in sound mind has the right, in the exercise of control over his body, to determine whether or not to submit to lawful medical treatment." (Cobbs v. Grant (1972) 8 Cal. 3d 229, 242 [104 Cal. Rptr. 505, 502 P.2d 1].)


[5 Cal4th Page 732]


[14] Although seemingly categorical, these pronouncements predate the recent rapid advancements in medical technology with their attendant ethical, moral, and social implications. Illnesses and injuries that once brought the clergy to the bedside of the afflicted now may bring a team of highly skilled medical personnel fully equipped with sophisticated, life-preserving machinery. Increasingly, the courts are drawn into the wake of this technological progress to mediate among the myriad concerns it has generated.


[15] Here, we must determine whether the right to "exercise of control over [one's] body" is sufficiently broad to permit an individual to decline life-sustaining treatment, even if to do so will cause or hasten death. Drawing upon the wisdom and insight of the courts preceding us into this sensitive territory, we approach our undertaking with caution and humility, fully appreciative of the profound considerations, both philosophical and personal, at issue. After due deliberation, we hold that under California law a competent, informed adult has a fundamental right of self-determination to refuse or demand the withdrawal of medical treatment of any form irrespective of the personal consequences. Under the facts of this case, we further conclude that in the absence of evidence demonstrating a threat to institutional security or public safety, prison officials, including medical personnel, have no affirmative duty to administer such treatment and may not deny a person incarcerated in state prison this freedom of choice. (Pen. Code, § 2600.)


[16] I.


[17] Real party in interest Howard Andrews (Andrews) is confined to the California Medical Facility at Vacaville serving a life term. On May 24, 1991, Andrews jumped or fell from a wall while in prison, fracturing a cervical vertebrae and rendering himself a quadriplegic. As a result, he lacks any physical sensation or control of his body below the shoulders. The condition is irreversible. Medical personnel must assist in the performance of all bodily functions, and Andrews must cooperate with them during his feeding and the administration of medication.


[18] Petitioner Daniel Thor (petitioner) is a licensed physician attending Andrews as a staff member of the medical facility at Vacaville. Petitioner alleges that since October 11, 1991, Andrews "has intermittently refused to be fed," causing severe weight loss and threatening his health. He also has refused necessary medication and treatment for his general care. Consequently, he is at substantial risk of death due to possible pulmonary emboli, starvation, infection, and renal failure. Staff psychiatrists have examined Andrews and found him depressed about his quadriplegic condition but mentally competent to understand and appreciate his circumstances.


[5 Cal4th Page 733]


[19] On November 22, 1991, petitioner initiated an ex parte proceeding in the superior court seeking an order allowing him to use a gastrojejunostomy tube or percutaneous gastrostomy tube to feed and medicate Andrews notwithstanding his refusal to consent to such procedures.*fn1 The court ruled as a matter of law that Andrews had a right to refuse medical intervention under the facts alleged. Petitioner sought a writ of mandate in the Court of Appeal, which appointed counsel for Andrews and solicited responsive pleadings. Counsel filed a demurrer and answer, admitting the substance of the factual allegations, but asserting Andrews's right to make decisions regarding his care and treatment and denying any intention to engage in a hunger strike as alleged by petitioner.*fn2


[20] The Court of Appeal summarily denied the petition but provided a statement of reasons. Relying on Bouvia v. Superior Court (1986) 179 Cal. App. 3d 1127 [225 Cal. Rptr. 297] (Bouvia) and Bartling v. Superior Court (1984) 163 Cal. App. 3d 186 [209 Cal. Rptr. 220] (Bartling), the court concluded Andrews "had a right to refuse unwanted medical treatment, including sustenance." We granted review to address these transcendent issues of statewide importance.*fn3


[21] II.


[22] Petitioner posits a duty to force-feed and provide other nonconsensual treatment as he deems appropriate and necessary because, although competent, Andrews is subject to his custodial care as a state


[5 Cal4th Page 734]


[23] prisoner.*fn4 (Estelle v. Gamble, supra, 429 U.S. at p. 104 [50 L.Ed.2d at p. 260]; Cal. Code Regs., tit. 15, § 3351.) Unless permitted to provide such care, petitioner fears he could be subject to possible civil and criminal liability. Andrews counters that regardless of his status he has the right to refuse treatment even if the refusal may hasten his death, and his decision must prevail over any interest asserted by petitioner. (See generally Bouvia, supra, 179 Cal. App. 3d 1127.)


[24] Penal Code section 2600 provides in part that a prisoner "may . . . be deprived of such rights, and only such rights, as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public." Accordingly, to resolve this conflict we must initially remove it from the prison context and determine whether Andrews would otherwise have the right to prevent petitioner from administering any medical procedure to which he has not consented, irrespective of the personal consequences.


[25] A.


[26] Until recently, the question of a patient's right to refuse life-sustaining treatment has implicated potentially conflicting medical, legal, and ethical considerations. The developing interdisciplinary consensus, however, now uniformly recognizes the patient's right of control over bodily integrity as the subsuming essential in determining the relative balance of interests. (See In the Matter of Farrell (1987) 108 N.J. 335 [529 A.2d 404, 410-412] and cases cited.) This preeminent deference derives principally from "the long-standing importance in our Anglo-American legal tradition of personal autonomy and the right of self- determination." (In re Gardner (Me. 1987) 534 A.2d 947, 950; see Rasmussen v. Fleming (1987) 154 Ariz. 207


[5 Cal4th Page 735]


[27] [741 P.2d 674, 682-683]; Satz v. Perlmutter (Fla.Dist.Ct.App. 1978) 362 So.2d 160, 162, affd. (1980) 379 So.2d 359; Brophy v. New England Sinai Hospital, Inc. (1986) 398 Mass. 417 [497 N.E.2d 626, 633] (Brophy); In the Matter of Farrell, supra, 108 N.J. 335 [529 A.2d at p. 410].) As John Stuart Mill succinctly stated, "Over himself, over his own body and mind, the individual is sovereign." (Mill, On Liberty (1859) p. 13.)*fn5


[28] The common law has long recognized this principle: A physician who performs any medical procedure without the patient's consent commits a battery irrespective of the skill or care used. (Estrada v. Orwitz (1946) 75 Cal. App. 2d 54, 57 [170 P.2d 43]; Valdez v. Percy (1939) 35 Cal. App. 2d 485, 491 [96 P.2d 142]; Schloendorff v. Society of New York Hospital, supra, 211 N.Y. 125 [105 N.E. at p. 93]; see Union Pacific Railway Co. v. Botsford, supra, 141 U.S. at p. 252 [35 L.Ed.2d at pp. 737-738]; Mohr v. Williams (1905) 95 Minn. 261 [104 N.W. 12, 14- 15], overruled on other grounds in Genzel v. Halvorson (1957) 95 Minn. 261 [80 N.W.2d 854, 859]; Prosser on Torts (4th ed. 1971) § 18, pp. 104-106; Rest.2d Torts, § 49.) As a corollary, the law has evolved the doctrine of informed consent. (See Cobbs v. Grant, supra, 8 Cal. 3d at pp. 239-241.) "Under this doctrine, 'the patient must have the capacity to reason and make judgments, the decision must be made voluntarily and without coercion, and the patient must have a clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment, along with a full understanding of the nature of the disease and the prognosis.' [Citations.]" (Rasmussen v. Fleming, supra, 154 Ariz. 207 [741 P.2d at p. 683].)


[29] While the physician has the professional and ethical responsibility to provide the medical evaluation upon which informed consent is predicated, the patient still retains the sole prerogative to make the subjective treatment decision based upon an understanding of the circumstances. (In re Gardner, supra, 534 A.2d at p. 951; In the Matter of Conroy (1985) 98 N.J. 321 [486 A.2d 1209, 1222, 48 A.L.R.4th 1].) Accordingly, the right to refuse medical


[5 Cal4th Page 736]


[30] treatment is equally "basic and fundamental" and integral to the concept of informed consent.*fn6 (Bouvia, supra, 179 Cal. App. 3d at p. 1137; Bartling, supra, 163 Cal. App. 3d at p. 195; Cruzan v. Director, Missouri Dept. of Health, supra, 497 U.S. at p. 277 [111 L.Ed.2d at p. 241__ (Cruzan); In re Gardner, supra, 534 A.2d at p. 951; Brophy, supra, 398 Mass. 417 [497 N.E.2d at p. 633]; In the Matter of Conroy, supra, 98 N.J. 321 [486 A.2d at p. 1222].) "The purpose underlying the doctrine of informed consent is defeated somewhat if, after receiving all information necessary to make an informed decision, the patient is forced to choose only from alternative methods of treatment and precluded from foregoing all treatment whatsoever." (Rasmussen v. Fleming, supra, 154 Ariz. 207 [741 P.2d at p. 683].) "Obviously, if a patient is powerless to decline medical treatment upon being properly informed of its implications, the requirement of consent would be meaningless." (McKay v. Bergstedt (1990) 106 Nev. 808 [801 P.2d 617, 621]; see Cal. Code Regs., tit. 22, § 70707, subd. (6) [under administrative regulations patients have right to "[p]articipate actively in decisions regarding medical care. To the extent permitted by law, this includes the right to refuse treatment."].)


[31] Because health care decisions intrinsically concern one's subjective sense of well-being, this right of personal autonomy does not turn on the wisdom, i.e., medical rationality, of the individual's choice. (Lane v. Candura (1978) 6 Mass.App. 377 [376 N.E.2d 1232, 1236, 93 A.L.R.3d 59]; In re Gardner, supra, 534 A.2d at p. 951; see also Bouvia, supra, 179 Cal. App. 3d at p. 1143.) "Anglo-American law starts with the premise of thorough-going self determination. It follows that each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of life-saving surgery, or other medical treatment. A doctor might well believe that an operation or form of treatment is desirable or necessary, but the law does not permit him to substitute his own judgment for that of the patient by any form of artifice or deception."*fn7 (Natanson v. Kline (1960) 186 Kan. 393, 406-407 [350 P.2d 1093, 1104].)


[5 Cal4th Page 737]


[32] Moreover, in this regard both courts and commentators generally reject attempts to draw distinctions between, for example, "ordinary" and "extraordinary" procedures,*fn8 or "terminal" and "nonterminal" conditions,*fn9 or "withholding" and "withdrawing" life- sustaining treatment. (See generally, President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Rep. (President's Com., Rep.) (1983) Deciding to Forego Life-Sustaining Treatment, pp. 60-90.) Rather, effectuating the patient's freedom of choice remains the ultimate arbiter. (In re Gardner, supra, 534 A.2d at p. 955; cf. Health & Saf. Code, § 7191.5, subd. (e) ["This chapter [Natural Death Act] does not affect the right of a patient to make decisions regarding use of life-sustaining treatment, so long as the patient is able to do so, or impair or supersede a right or responsibility that a person has to effect the withholding or withdrawal of medical care."].)


[33] Other, nonlegal sources uniformly reaffirm these tenets. Reports by the presidential commission studying these interrelated issues emphasize the necessity and value of personal autonomy with respect to both informed consent generally (President's Com., Rep. (1982) Making Health Care Decisions, pp. 43-51) and decisions to forego life-sustaining treatment (President's Com., Rep., supra, Deciding to Forego Life-Sustaining Treatment, pp. 2-4, 23-41). In a publication discussing the termination of such procedures, the Hastings Center, which devotes itself to the research of ethical problems in medicine, biology, and the life sciences, stated: "[O]ur ethical framework draws on the value of patient autonomy or self-determination, which establishes the right of the patient to determine the nature of his or her own medical care. This value reflects our society's long-standing tradition of recognizing the unique worth of the individual. We respect human dignity by granting individuals the freedom to make choices in accordance with their


[5 Cal4th Page 738]


[34] own values. The principle of autonomy is the moral basis for the legal doctrine of informed consent, which includes the right of informed refusal." (Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying (1987) p. 7; see also Bouvia, supra, 179 Cal. App. 3d at pp. 1140-1141 [citing medical association statements affirming the preeminence of patient autonomy].)


[35] Given the well- and long-established legal and philosophical underpinnings of the principle of self-determination, as well as the broad consensus that it fully embraces all aspects of medical decisionmaking by the competent adult, we conclude as a general proposition that a physician has no duty to treat an individual who declines medical intervention after "reasonable disclosure of the available choices with respect to proposed therapy [including nontreatment] and of the dangers inherently and potentially involved in each." (Cobbs v. Grant, supra, 8 Cal. 3d at p. 243.) The competent adult patient's "informed refusal" supersedes and discharges the obligation to render further treatment.


[36] B.


[37] Having reached this Conclusion, we nevertheless recognize that, while fundamentally compelling, the right to be free from nonconsensual invasions of bodily integrity is not absolute. Four state interests generally identify the countervailing considerations in determining the scope of patient autonomy: preserving life, preventing suicide, maintaining the integrity of the medical profession, and protecting innocent third parties. (Bouvia, supra, 179 Cal. App. 3d at p. 1142; Brophy, supra, 497 N.E.2d at p. 634; In the Matter of Conroy, supra, 98 N.J. 321 [486 A.2d at p. 1223].) In this case, petitioner asserts that all four undergird his duty to treat Andrews and therefore prevail despite the lack of consent.*fn10


[38] The state's paramount concern is the preservation of life, which embraces two separate but related aspects: an interest in preserving the life of the particular patient and an interest in preserving the sanctity of all life. In this context, however, these considerations can only assert themselves at


[5 Cal4th Page 739]


[39] the expense of self-determination and bodily integrity, matters all the more intensely personal when disease or physical disability renders normal health and vitality impossible. Accordingly, "[t]he duty of the State to preserve life must encompass a recognition of an individual's right to avoid circumstances in which the individual himself would feel that efforts to sustain life demean or degrade his humanity. [Citation.] It is antithetical to our scheme of ordered liberty and to our respect for the autonomy of the individual for the State to make decisions regarding the individual's quality of life. It is for the patient to decide such issues." (Brophy, supra, 497 N.E.2d at p. 635; McKay v. Bergstedt, supra, 801 P.2d at pp. 624, 627.) In this situation, "the value of life is desecrated not by a decision to refuse medical treatment but 'by the failure to allow a competent human being the right of choice.' [Citations.]" (In the Matter of Farrell, supra, 108 N.J. 335 [529 A.2d at p. 411], quoting Superintendent of Belchertown State School v. Saikewicz (1977) 373 Mass. 728 [370 N.E.2d 417, 426] (Saikewicz).)


[40] The fact that an individual's decision to forego medical intervention may cause or hasten death does not qualify the right to make that decision in the first instance. (Bouvia, supra, 179 Cal. App. 3d at pp. 1143, 1144; In the Matter of Farrell, supra, 108 N.J. 335 [529 A.2d at p. 410].) Particularly in this day of sophisticated technology, the potential medical benefit of a proposed treatment is only one of the factors a patient must evaluate in assessing his or her perception of a meaningful existence. Since death is the natural Conclusion of all life, the precise moment may be less critical than the quality of time preceding it. Especially when the prognosis for full recovery from serious illness or incapacitation is dim, the relative balance of benefit and burden must lie within the patient's exclusive estimation: "That personal weighing of values is the essence of self-determination." (In re Gardner, supra, 534 A.2d at p. 955; Conservatorship of Drabick (1988) 200 Cal. App. 3d 185, 208 [245 Cal. Rptr. 840]; Barber, supra, 147 Cal. App. 3d at p. 1019; Rasmussen v. Fleming, supra, 154 Ariz. 207 [741 P.2d at p. 683].) As Justice Brennan explained in his Dissenting opinion in Cruzan, supra, "The possibility of a medical miracle [may] indeed [be] part of the calculus, but it is a part of the patient's calculus." (497 U.S. at p. 321 [111 L.Ed.2d at p. 269] (dis. opn. of Brennan, J.), italics in the original.)


[41] Thus, "[w]hile both of the[] state interests in life are certainly strong, in themselves they will usually not foreclose a competent person from declining life-sustaining medical treatment . . .. This is because the life that the state is seeking to protect in such a situation is the life of the same person who has competently decided to forego the medical intervention; it is not some other actual or potential life that cannot adequately protect itself. [Citations.]" (In the Matter of Conroy, supra, 98 N.J. 321 [486 A.2d at p.


[5 Cal4th Page 740]


[42] 1223]; see also Bouvia, supra, 179 Cal. App. 3d at p. 1143; Cruzan, supra, 497 U.S. at p. 313 [111 L.Ed.2d at pp. 263-264] (dis. opn. of Brennan, J.); In re Gardner, supra, 534 A.2d at p. 955; Brophy, supra, 497 N.E.2d at p. 636; Myers, supra, 399 N.E.2d at p. 458; McKay v. Bergstedt, supra, 801 P.2d at pp. 622-623.)


[43] Moreover, the state has not embraced an unqualified or undifferentiated policy of preserving life at the expense of personal autonomy. (See Cruzan, supra, 497 U.S. at p. 314, fn. 15 [111 L.Ed.2d at p. 265] (dis. opn. of Brennan, J.).) As a general proposition, "[t]he notion that the individual exists for the good of the state is, of course, quite antithetical to our fundamental thesis that the role of the state is to ensure a maximum of individual freedom of choice and conduct." (In re Osborne (D.C. 1972) 294 A.2d 372, 375, fn. 5.) In California, the Natural Death Act and other statutory provisions permitting an individual or designated surrogate to exercise conclusive control over the administration of life-sustaining treatment evidence legislative recognition that fostering self-determination in such matters enhances rather than deprecates the value of life. (Health & Saf. Code, § 7185 et seq.; Civ. Code, § 2500 et seq.; see also McKay v. Bergstedt, supra, 801 P.2d at p. 623; In the Matter of Conroy, supra, 98 N.J. 321 [486 A.2d at pp. 1223- 1224].)


[44] Examining the facts of the present case in light of the foregoing considerations, we find no countervailing state interest in the preservation of life sufficient to sustain a duty on the part of petitioner superseding the right to refuse unwanted medical treatment. Andrews suffers from a profoundly disabling and irreversible physical condition, which not only imposes total dependence on others for all bodily functions but renders him susceptible to illness and infection requiring further medical attention. (See Bouvia, supra, 179 Cal. App. 3d at p. 1143; Brophy, supra, 497 N.E.2d at p. 631, fn. 21; McKay v. Bergstedt, supra, 801 P.2d at p. 624.) The treatment proposed by petitioner involves a substantial surgical procedure, with the potential not only to cause discomfort and pain but also to create additional risks. (See In re Gardner, supra, 534 A.2d at p. 954, fn. 7; cf. Schmerber v. California, supra, 384 U.S. 757 [routine blood test was reasonable bodily intrusion in light of state's interest to preserve evidence of criminal conduct]; Jacobson v. Massachusetts (1905) 197 U.S. 11 [49 L.Ed. 643, 25 S.Ct. 358] [simple vaccination permissible to protect public health].) While it may serve to extend Andrews's life, it offers no hope of reversing his affliction. It remains palliative at best. "[A]s the quality of life diminishes because of physical deterioration, the State's interest in preserving life may correspondingly decrease." (McKay v. Bergstedt, supra, 801 P.2d at p. 622; see also Bouvia, supra, 179 Cal. App. 3d at pp. 1143-1144.)


[5 Cal4th Page 741]


[45] Petitioner contends, however, that Andrews does not suffer the same degree of debilitation as the patients in Bouvia and Bartling, for whom chronic pain and dependence made life hopeless and "intolerable." (Bartling, supra, 163 Cal. App. 3d at p. 193; Bouvia, supra, 179 Cal. App. 3d at pp. 1142-1143.) According to petitioner, Andrews does not endure their "unending agony" and therefore is entitled to a proportionately smaller measure of control over bodily intrusions. This argument misapprehends the intensely individual nature and broadly based scope of the right to personal autonomy, which simply will not accommodate the kind of parsing petitioner invites.*fn11 For self-determination to have any meaning, it cannot be subject to the scrutiny of anyone else's conscience or sensibilities. It is the individual who must live or die with the course of treatment chosen or rejected, not the state. Particularly when the restoration of normal health and vitality is impossible, only the person whose moment-to-moment existence lies in the balance can resolve the difficult and uniquely subjective questions involved.*fn12 Regardless of the consequences, the courts, the medical profession, and even family and friends must accept the decision with understanding and compassion. We therefore hold that Andrews's right of self-determination and bodily integrity prevails over any countervailing duty to preserve life. (Myers, supra, 399 N.E.2d at p. 458.)


[46] With respect to the prevention of suicide, the state has expressed a limited interest at best since it imposes no criminal or civil sanction for intentional acts of self-destruction. Moreover, "[n]o state interest is compromised by allowing [an individual] to experience a dignified death rather than an excruciatingly painful life." (Donaldson v. Lungren, supra, 2 Cal. App. 4th at p. 1622.)


[47] Judicial authority also uniformly rejects the contention that acquiescence in the decision to forego a life-sustaining procedure subjects the physician to liability for aiding and abetting suicide and therefore permits countermanding a patient's control over the course of treatment. In the first place, "[t]his state interest in protecting people from direct and purposeful self-destruction is motivated by, if not encompassed within, the state's more basic interest in preserving life. Thus, it is questionable whether it is a distinct state interest


[5 Cal4th Page 742]


[48] worthy of independent consideration." (In the Matter of Conroy, supra, 98 N.J. 321 [486 A.2d at p. 1224]; cf. In re Caulk (1984) 125 N.H. 226 [480 A.2d 93, 96-97] [medical intervention permitted when otherwise healthy prisoner expressed preference for death to life in prison and refused to eat].)


[49] Second, a necessary distinction exists between a person suffering from a serious life-threatening disease or debilitating injury who rejects medical intervention that only prolongs but never cures the affliction and an individual who deliberately sets in motion a course of events aimed at his or her own demise and attempts to enlist the assistance of others.*fn13 In this respect, we agree with the Supreme Court of Nevada: "If a competent adult is beset with an irreversible condition such as quadriplegia, where life must be sustained artificially and under circumstances of total dependence, the adult's attitude or motive may be presumed not to be suicidal." (McKay v. Bergstedt, supra, 801 P.2d at p. 627.) Accordingly, petitioner would not be aiding and abetting a suicide (see Pen. Code, § 401) and has no duty to intervene on this basis.


[50] The state's concern for maintaining the ethical integrity of the medical profession also warrants due consideration. However, we perceive no threat to this interest in upholding the individual's right to self- determination in medical decisionmaking, including the right to decline life- sustaining treatment. (See Bouvia, supra, 179 Cal. App. 3d at pp. 1140-1141; Brophy, supra, 497 N.E.2d at p. 638; Myers, supra, 399 N.E.2d at p. 458.) To begin with, notwithstanding rigorous standards respecting the duty to preserve life, "[p]revailing medical ethical practice does not, without exception, demand that all efforts toward life prolongation be made in all circumstances." (Satz v. Perlmutter, supra, 362 So.2d at p. 163.)


[51] Moreover, these standards cannot exist in a social and moral vacuum, thereby encouraging a form of medical paternalism under which the physician's determination of what is "best," i.e., medically desirable, controls over patient autonomy. Doctors have the responsibility to advise patients fully of those matters relevant and necessary to making a voluntary and intelligent choice. Once that obligation is fulfilled, "[i]f the patient rejected the doctor's advice, the onus of that decision would rest on the patient, not


[5 Cal4th Page 743]


[52] the doctor. Indeed, if the patient's right to informed consent is to have any meaning at all, it must be accorded respect even when it conflicts with the advice of the doctor or the values of the medical profession as a whole." (In the Matter of Conroy, supra, 98 N.J. 321 [486 A.2d at p. 1225]; Bartling, supra, 163 Cal. App. 3d at p. 195; Saikewicz, supra, 370 N.E.2d at p. 427.)


[53] Amicus curiae California Medical Association, representing over 30,000 physicians statewide, fully supports the "primacy of patient autonomy" and urges this court "to affirm that a mentally competent [person] has a virtually unqualified right to refuse unwanted medical treatment." While the facts of this case necessarily circumscribe our holding short of such a sweeping declaration, this advocacy underscores the growing perception both in the medical and legal professions and in society at large that these principles do not compromise the ethical standards of physicians. (See, e.g., Health & Saf. Code, § 7190, 7191 [physician unwilling to comply with declaration under Natural Death Act must transfer patient or be subject to misdemeanor charges].)


[54] Our Conclusion that the patient's choice must be respected regardless of the doctor's judgment does not denigrate professional standards of care. Rather, it attests to their continuing and critical importance in maximizing the broader precept of self-determination that transcends a particular course of treatment. Patient autonomy and medical ethics are not reciprocals; one does not come at the expense of the other. The latter is a necessary component and complement of the former and should serve to enhance rather than constrict the individual's ability to resolve a medical decision in his or her best overall interests.


[55] Petitioner also raises concerns for potential criminal and civil liability. While such apprehensions are not always unfounded, they are unsubstantiated under these circumstances. When a competent, informed adult directs the withholding or withdrawal of medical treatment, even at the risk of hastening or causing death, medical professionals who respect that determination will not incur criminal or civil liability; the patient's decision discharges the physician's duty. (Bouvia, supra, 179 Cal. App. 3d at p. 1145; Bartling, supra, 163 Cal. App. 3d at p. 197; Barber, supra, 147 Cal. App. 3d at pp. 1017-1018; see Kirby v. Spivey (1983) 167 Ga.App. 751 [307 S.E.2d 538, 540]; In re Gardner, supra, 534 A.2d at p. 956; Saikewicz, supra, 370 N.E.2d at p. 427, fn. 12; In the Matter of Farrell, supra, 108 N.J. 335 [529 A.2d at pp. 415-416]; see also Civ. Code, § 2512 [no liability for acting in good faith reliance on durable power of attorney for health care decisions]; Health & Saf. Code, § 7190.5 [no civil or criminal liability for giving effect to declaration under Natural Death Act]; cf. Donaldson v. Lungren, supra, 2 Cal. App. 4th at pp. 1624-1625 [criminal liability for assisting suicide].)


[5 Cal4th Page 744]


[56] The final consideration is the protection of innocent third parties. Contrary to petitioner's allegations, neither he nor any other prison personnel come within the class of persons encompassed by this state interest. Generally, this concern arises when the refusal of medical treatment endangers public health or implicates the emotional or financial welfare of the patient's minor children. (Byrn, Compulsory Lifesaving Treatment for the Competent Adult, supra, 44 Fordham L.Rev. at pp. 33- 34; In re Gardner, supra, 534 A.2d at p. 953, fn. 5; see, e.g., Application of President & Directors of Georgetown Col. (D.C.Cir. 1964) 331 F.2d 1000, 1008, opn. filed on den. rehg., 331 F.2d 1010; but see In re Osborne, supra, 294 A.2d at p. 375 [declining to order blood transfusion for father with two young children in light of family support].) This case involves neither circumstance.


[57] In summary, we conclude that a competent, informed adult, in the exercise of self-determination and control of bodily integrity, has the right to direct the withholding or withdrawal of life-sustaining medical treatment, even at the risk of death, which ordinarily outweighs any countervailing state interest. The right does not depend upon the nature of the treatment refused or withdrawn; nor is it reserved to those suffering from terminal conditions. Once a patient has declined further medical intervention, the physician's duty to provide such care ceases.


[58] III.


[59] A.


[60] The question remains as to the extent to which Andrews, as a state prison inmate, may exercise this right. By its nature, incarceration inevitably restricts an individual's freedom. Beyond the obvious fact of confinement, the need to ensure institutional security may place substantial limitations on a prisoner's ability to exercise rights of association, expression, and privacy, among others. (See, e.g., In re Cummings (1982) 30 Cal. 3d 870 [180 Cal. Rptr. 826, 640 P.2d 1101, 29 A.L.R.4th 1207]; In re Alcala (1990) 222 Cal. App. 3d 345 [271 Cal Rptr. 674]; In re Gallego (1982) 133 Cal. App. 3d 75 [183 Cal. Rptr. 715].) For example, in In re Alcala, the Court of Appeal upheld the authority of prison administrators to prohibit the possession of certain items of personal clothing despite the infringement on various constitutional and statutory interests because of a demonstrated threat to custodial control. (222 Cal. App. 3d at pp. 372-377.)


[61] Prison administrative authority is not unqualified, however. As we have already alluded, Penal Code section 2600 expressly provides that a prisoner


[5 Cal4th Page 745]


[62] "may . . . be deprived of such rights, and only such rights, as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public." (See also Bell v. Wolfish (1979) 441 U.S. 520, 545- 547 [60 L.Ed.2d 447, 472-474, 99 S.Ct. 1861].) Under California law persons sentenced to prison no longer suffer "civil death" (Stats. 1850, ch. 99, § 145, p. 247; see Hayashi v. Lorenz (1954) 42 Cal. 2d 848, 852 [271 P.2d 18]) but "retain the rights of free persons," unless safety or security may be compromised. (De Lancie v. Superior Court (1982) 31 Cal. 3d 865, 868 [183 Cal. Rptr. 866, 647 P.2d 142]; see, e.g., In re Reynolds (1979) 25 Cal. 3d 131 [157 Cal. Rptr. 892, 599 P.2d 86] [prisoners permitted to wear union lapel button absent evidence of disruption]; Keyhea v. Rushen (1986) 178 Cal. App. 3d 526 [223 Cal. Rptr. 746] [affording prisoner competency hearing prior to involuntary psychotropic medication did not threaten prison security].)


[63] In refusing to consent to further treatment, Andrews is exercising his fundamental right of self-determination in medical decisions. Petitioner has offered no evidence that allowing him to do so undermines prison integrity or endangers the public.*fn14 Thus, considering the magnitude of the right at issue in light of the clear legislative directive articulated in Penal Code section 2600, we hold that petitioner must accede to Andrews's decision and may not force him to accept unwanted treatment or care. (See Keyhea v. Rushen, supra, 178 Cal. App. 3d 526; Runnels v. Rosendale (9th Cir. 1974) 499 F.2d 733, 735; Zant v. Prevatte (1982) 248 Ga. 832 [286 S.E.2d 715]; cf. Coffin v. Reichard (6th Cir. 1944) 143 F.2d 443, 445 [155 A.L.R. 143] [prisoner has "right to personal security against unlawful invasion"]; but see Washington v. Harper (1990) 494 U.S. 210 [108 L.Ed.2d 178, 110 S.Ct. 1028] [officials may administer unwanted psychotropic drugs when inmate's mental disability poses threat to himself or prison safety].)


[64] We are not unmindful of the difficulties involved in maintaining an orderly and secure penal institution; and our holding does not imply any attenuation of the deference accorded the experience and expertise of administrative officials in such matters. (Bailey v. Loggins (1982) 32 Cal. 3d 907, 922 [187 Cal. Rptr. 575, 654 P.2d 758]; In re Alcala, supra, 222 Cal. App. 3d at pp. 372-373; see also Jones v. North Carolina Prisoners' Union (1977) 433 U.S. 119, 126 [53 L.Ed.2d 629, 638-639, 97 S.Ct. 2532].) In another case, or in this case if a change of circumstances warrant, we do not preclude


[5 Cal4th Page 746]


[65] prison authorities from establishing the need to override an inmate's choice to decline medical intervention. (Bailey v. Loggins, supra, 32 Cal. 3d at p. 922.) A custodial environment is uniquely susceptible to the catalytic effect of disruptive conduct; and courts will not interfere with reasonable measures required to forestall such untoward consequences. (See, e.g., Myers, supra, 399 N.E.2d at pp. 457-458; cf. In re Caulk, supra, 480 A.2d at pp. 95-96 [authorities could intervene with medical treatment when otherwise healthy prisoner's attempt to starve himself threatened prison discipline and security]; Von Holden v. Chapman (1982) 87 A.D.2d 66 [450 N.Y.S.2d 623, 625] [same].) However, such measures must be demonstrably "reasonable" and "necessary," not a matter of conjecture.


[66] B.


[67] Apart from institutional concerns, petitioner also asserts a duty to override Andrews's lack of consent based on the decision of Estelle v. Gamble, supra, 429 U.S. 97, in which the United States Supreme Court concluded "that deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' [citation] proscribed by the Eighth Amendment." (Id., at p. 104 [50 L.Ed.2d at p. 260]; cf. Cal. Code Regs., tit. 15, § 3351 [under California Department of Corrections rule, physician may administer unconsented medical treatment in emergency "to save the life or avoid serious physical damage to an inmate."];*fn15 DeShaney v. Winnebago Cty. Soc. Serv. Dept. (1989) 489 U.S. 189 [103 L.Ed.2d 249, 109 S.Ct. 998] [state has affirmative responsibility for general well-being of persons taken into custody and held].) Petitioner misconceives the import of this holding. The constitutional obligation of medical personnel to provide treatment has no independent origin; it necessarily derives from and complements the prisoner's right to receive needed medical attention. Waiver of treatment discharges the duty to treat and negates the possibility of "deliberate indifference." (See McCracken v. Jones (10th Cir. 1977) 562 F.2d 22, 25.) The principle articulated in Estelle v. Gamble, supra, 429 U.S. 97, does not render inmates captives of unwanted ministrations; we decline to transmute the prisoner's shield into the physician's sword.


[5 Cal4th Page 747]


[68] By the same token, we will not sanction or condone manipulation of a prisoner's medical circumstances to the prejudice of either institutional safety and security or the constitutional and regulatory obligations of prison authorities. (See Myers, supra, 399 N.E.2d at p. 458; cf. In re Caulk, supra, 480 A.2d at p. 96; State ex rel. White v. Narick (W.Va. 1982) 292 S.E.2d 54, 58.) Officials are not precluded from considering purpose or motive in determining whether the exercise of rights "is likely to be . . . disruptive . . ., or otherwise detrimental to the effective administration of the [state] prison system." (Jones v. North Carolina Prisoners' Union, supra, 433 U.S. at p. 126, fn. 4 [53 L.Ed.2d at p. 639]; cf. Bouvia, supra, 179 Cal. App. 3d at p. 1145 [patient's "motive" in refusing treatment not subject to approval].) Thus, for example, an inmate may not seek to gain an advantage in placement within the prison system by rejecting necessary medical treatment. (Myers, supra, 399 N.E.2d 452.)*fn16


[69] Amicus curiae raises a collateral concern unique to the prison context: The possible inadequacy of medical and related support services for ill or injured inmate patients may compromise the voluntariness of their decision to forego life-sustaining treatment. For example, in the case of a seriously disabled prisoner, the lack of rehabilitative personnel or facilities, psychological counseling, or necessary physical accommodations of the disability may unduly influence the individual's choice to reject further medical intervention even of a palliative nature. Given the potential vulnerability of such patients, amicus curiae proposes some form of mandatory judicial intercession, which would include the appointment of "an independent expert to assess the adequacy of the prisoner's environment on the prisoner's capacity to make a 'rational' choice."


[70] Although we appreciate the significance of these considerations, we are reluctant for several reasons to formulate any particular procedure for determining a competent prisoner's right to control decisionmaking with respect to his or her own health care. First, as a general proposition, judicial intervention of the type proposed tends to denigrate the principle of personal autonomy, substituting a species of legal paternalism for the medical paternalism the concept of informed consent seeks to eschew. "Rationality" is for the patient to determine. Judicial scrutiny therefore should be considered as a course of last resort. (See Barber, supra, 147 Cal. App. 3d at pp. 1021-1022;


[5 Cal4th Page 748]


[71] In the Matter of Farrell, supra, 108 N.J. 335 [529 A.2d at p. 415].) Second, on the record before us, we have no reason to believe that the factors identified by amicus curiae have influenced Andrews's refusal of further medical intervention. Nor does the record at this point raise unanswered questions implying a possible lack of voluntariness.*fn17


[72] Third, any individual who suffers a debilitating or life-threatening disease or injury inevitably faces choices in medical decisionmaking affected or even dictated by his or her life circumstances, including resultant depression, limited financial resources, and minimal family or social support systems. (See, e.g., McKay v. Bergstedt, supra, 801 P.2d 617.) Although in some respects unique, the prison environment is simply one such circumstance in the individual's personal calculus; and we have no basis for assuming it inherently jeopardizes the voluntariness of that process for inmates.


[73] Finally, while we presume medical facilities within prison walls meet the same professional standards as those without (see Pen. Code, § 5068, 5079; cf. Evid. Code, § 664), we recognize amicus curiae has expressed a legitimate concern for their adequacy to handle the special needs of certain inmate patients. However, absent evidence of a specific deficiency, we conclude that constitutional and administrative protections guaranteeing an inmate proper treatment commensurate with his or her medical condition suffice to address this contingency. (Estelle v. Gamble, supra, 429 U.S. at pp. 104-106 [50 L.Ed.2d at pp. 260-261]; Cal. Code Regs., tit. 15, § 3350 et seq. [standards for prison medical services], 3360 et seq. [standards for prison mental health services].) State regulations governing the Department of Corrections provide for administrative proceedings in the event a prisoner challenges the adequacy of medical care. (See Cal. Code Regs., tit. 15, § 3084.1, subd. (a) [inmate may appeal to departmental review board any condition perceived as adversely affecting welfare].) Once administrative remedies are exhausted, the inmate patient may seek habeas corpus relief. (See, e.g., In re Coca (1978) 85 Cal. App. 3d 493, 501-503 [149 Cal. Rptr. 465]; In re Ingram (1978) 76 Cal. App. 3d 495, 501, fn. 2 [142 Cal. Rptr. 825]; In re Berry (1952) 113 Cal. App. 2d 613, 614 [248 P.2d 420].) Prisoners also have recourse to federal court to rectify deficiencies in their medical care. (42 U.S.C. § 1983; see Estelle v. Gamble, supra, 429 U.S. at p. 101 [50 L.Ed.2d at p. 258]; Runnels v. Rosendale, supra, 499 F.2d 733.) Accordingly, we perceive no need at this time to mandate a different or separate judicial procedure for situations involving the refusal of treatment, assuming the question does not involve the inmate's competence.


[5 Cal4th Page 749]


[74] Howard Andrews has refused to consent to the administration of nutrition or medication to him by means of a feeding tube. The parties agree Andrews is competent to make this decision and is aware of its consequences. The record substantiates no countervailing state interest sufficient to override the exercise of his right to self-determination in this respect. Accordingly, we find no duty on the part of petitioner as his physician to provide further life-sustaining procedures and therefore decline to authorize him to take any action inconsistent with or contrary to Andrews's express choice regarding the course of his medical treatment.


[75] IV.


[76] We confront here the development and evolution of medical-legal relationships, which call for the setting of bounds reflecting the wisdom and spirit of our times. The balance of rights and responsibilities must not endanger the dignity of the law or of human beings. In considering the lessons of history and progress, our duty is inevitable, and in accord with the enlightenment of modern circumstances.


[77] V.


[78] The alternative writ issued June 8, 1992, is discharged; and the stay order issued May 1, 1992, is vacated. The petition for writ of mandate is denied.


[79] Lucas, C. J., Mosk, J., Panelli, J., Kennard, J., Baxter, J., and George, J., concurred.


[80] Disposition


[81] The alternative writ issued June 8, 1992, is discharged; and the stay order issued May 1, 1992, is vacated. The petition for writ of mandate is denied.



--------------------------------------------------------------------------------

Opinion Footnotes

--------------------------------------------------------------------------------

[82] *fn1 A "gastrojejunostomy" is "[a] surgical operation for the creation of an anastomosis (artificial communication) between the stomach and the jejunum [forming a bypass for food]. The jejunum is the second part of the small intestine, separated from the stomach by the intervening duodenum." (2 Schmidt, Attorneys' Dict. of Medicine (1991) p. G-25.) A "gastrostomy" is "[t]he surgical cutting of an opening into the stomach wall through the wall of the abdomen, usually in order to create a channel for artificial feeding . . .." (Id., at p. G-27.)


[83] *fn2 The ex parte and summary nature of the hearing below, which does not appear to have been precipitated by any actual emergency, has somewhat constrained our analysis in part for lack of a thorough exposition of the facts. The informality of the procedures did more than potentially compromise the record for review, however: it denied fundamental due process. The unnecessary exclusion of the critical party from meaningful participation in a determination of his right to direct the course of medical treatment contravenes the basic tenets of our judicial system and affronts the principles of individual integrity that sustain it.
Accordingly, except in cases of imminent danger to the life or health of the patient or a similar exigency, we disapprove any procedure that denies or limits any relevant party access to the proceedings and the opportunity to be heard. In the event such denial or limitation has occurred and thereby impaired review, an appellate court may remand the matter for amplification of the record to safeguard the interests of all concerned.



[84] *fn3 This court also issued a stay order authorizing, on an emergency basis, nonconsensual medical treatment if necessary to prevent Andrews's death pending resolution.


[85] *fn4 Preliminarily, we note the question of petitioner's standing to seek an order permitting nonconsensual medical treatment under these facts. Petitioner asserts that he has a duty arising under both California regulatory authority and the federal Constitution to administer any procedure necessary to maintain the health of prisoners within his care, including Andrews, and that the failure to discharge this duty could subject him to various liabilities. (See Cal. Code Regs., tit. 15, § 3351 ["Medical treatment, including medication, will not be forced over the objections of a mentally competent inmate . . . except when immediate action is necessary to save the life or avoid serious physical damage to an inmate."]; Estelle v. Gamble (1976) 429 U.S. 97, 104 [50 L.Ed.2d 251, 260, 97 S.Ct. 285] ["deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' [citation] proscribed by the Eighth Amendment."].)
As we explain subsequently, neither administrative regulation nor the Eighth Amendment authorizes prison officials to disregard a competent prisoner's refusal to consent to medical treatment. (See, post, pt. III.B. and fn. 15.) Nevertheless, we find that petitioner's concern for a judicial determination of his duty in these circumstances justifies resolution by this court. (Cf. Code Civ. Proc., § 525 et seq. [injunctive relief], 1138 [declaratory relief]; Donaldson v. Lungren (1992) 2 Cal. App. 4th 1614 [4 Cal. Rptr. 2d 59].)



[86] *fn5 See also Cruzan v. Director, Missouri Dept. of Health (1990) 497 U.S. 261, 343 [111 L.Ed.2d 224, 282, 110 S.Ct. 2841] (dis. opn. of Stevens, J.) ("[T] the constitutional protection for the human body is surely inseparable from concern for the mind and spirit that dwell therein."); id., at pages 279, 287-289 (conc. opn. of O'Connor, J.), 304-306 (dis. opn. of Brennan, J.) [111 L.Ed.2d at pages 242, 247-248, 258-260]; Schmerber v. California (1966) 384 U.S. 757, 767 [16 L.Ed.2d 908, 917, 86 S.Ct. 1826] ("The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State."); Olmstead v. United States (1928) 277 U.S. 438, 478 [72 L.Ed. 944, 956, 48 S.Ct. 564, 66 A.L.R. 376] (dis. opn. of Brandeis, J.) ("The makers of our Constitution . . . conferred, as against the Government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized man."); cf. Stanley v. Georgia (1969) 394 U.S. 557, 565 [22 L.Ed.2d 542, 550, 89 S.Ct. 1243] ("Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.").


[87] *fn6 Supreme courts in several sister jurisdictions also have concluded that their state constitutional rights of privacy encompass the right to refuse life-saving medical treatment. (See, e.g., Rasmussen v. Fleming, supra, 154 Ariz. 207 [741 P.2d at p. 682], and cases cited at p. 682, fn. 8 [Arizona]; Satz v. Perlmutter, supra, 379 So.2d at p. 360 [Florida]; Hondroulis v. Schuhmacher (La. 1989) 553 So.2d 398, 415 [Louisiana]; In the Matter of Quinlan (1976) 70 N.J. 10 [355 A.2d 647, 663] [New Jersey]; In the Matter of Welfare of Colyer (1983) 99 Wn.2d 114 [660 P.2d 738, 742] [Washington]; cf. Bouvia, supra, 179 Cal. App. 3d at p. 1137.)


[88] *fn7 Then Circuit Judge Warren Burger clearly explicated this concept in his opinion on the denial of rehearing in Application of President & Directors of Georgetown Col. (D.C. Cir. 1964) 331 F.2d 1010 [118 App.D.C. 90]: "Mr. Justice Brandeis, whose views have inspired much of the 'right to be let alone' philosophy, said in Olmstead v. United States . . .. 'The makers of our Constitution . . . sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized man.' Nothing in this utterance suggests that Justice Brandeis thought an individual possessed these rights only as to sensible beliefs, valid thoughts, reasonable emotions, or well- founded sensations. I suggest he intended to include a great many foolish, unreasonable and even absurd ideas which do not conform, such as refusing medical treatment even at great risk." (Id., at pp. 1016- 1017; cf. Huxley, Brave New World (1960) p. 163.)


[89] *fn8 See, e.g., Bouvia, supra, 179 Cal. App. 3d at page 1137; Barber v. Superior Court (1983) 147 Cal. App. 3d 1006, 1016-1017 [195 Cal. Rptr. 484, 47 A.L.R.4th 1] (Barber); Cruzan, supra, 497 U.S. at page 288 [111 L.Ed.2d at page 248] (conc. opn. of O'Connor, J.); Brophy, supra, 497 N.E.2d at page 637; In the Matter of Conroy, supra, 98 N.J. 321 [486 A.2d at pages 1233-1236].


[90] *fn9 See, e.g., Bouvia, supra, 179 Cal. App. 3d at pages 1139-1140; Bartling, supra, 163 Cal. App. 3d at page 193; In the Matter of Conroy, supra, 98 N.J. 321 [486 A.2d at page 1226]; see also Brophy, supra, 497 N.E.2d 626; Commissioner of Correction v. Myers (1979) 379 Mass. 728 [399 N.E.2d 452] (Myers); McKay v. Bergstedt, supra, 801 P.2d 617. In this context, "terminal" refers to patients whose underlying condition is likely to cause death within a relatively short period, generally six months or less, with or without medical intervention. (See, e.g., Health & Saf. Code, § 7186, subd. (j).)


[91] *fn10 Because they are denominated "state" interests, the question may arise whether petitioner has standing to assert them as an individual physician. Generally in these cases, the countervailing concerns are considered in the context of determining the scope of the patient's right to assert self-determination in the context of a given medical decision. This case assumes a somewhat different procedural posture. However, in light of petitioner's contention that these state interests reinforce an affirmative duty to administer medical treatment despite the lack of consent and that he may be civilly or criminally liable for not doing so, we find he may assert them in support of his position. The fact that the state, as petitioner's employer, would bear ultimate liability for his action or inaction further confirms the propriety of considering them in fully resolving all relevant issues.


[92] *fn11 For example, a person suffering from cancer may be experiencing no pain or other symptoms at the time he or she decides to forego surgery, chemotherapy, or similar medical intervention that might effect a cure or at least prolong life. Nevertheless, that individual retains the right to decline such treatment irrespective of the present quality of life.


[93] *fn12 Clearly, many individuals with profound disabilities courageously confront and overcome daunting physical challenges to lead productive and satisfying lives, reflecting the vast potential and determination of the human spirit. (See, e.g., In re Marriage of Carney (1979) 24 Cal. 3d 725, 734-740 [157 Cal. Rptr. 383, 598 P.2d 36, 3 A.L.R.4th 1028].) Nevertheless, this fact does not dictate a similar choice for others.


[94] *fn13 Bouvia, supra, 179 Cal. App. 3d at page 1145; Rasmussen v. Fleming, supra, 154 Ariz. 207 [741 P.2d at page 685]; Brophy, supra, 497 N.E.2d at page 638; McKay v. Bergstedt, supra, 801 P.2d at pages 626-627; In re Matter of Farrell, supra, 108 N.J. 335 [529 A.2d at page 411]; see Donaldson v. Lungren, supra, 2 Cal. App. 4th at pages 1621-1624; see generally Byrn, Compulsory Lifesaving Treatment for the Competent Adult (1975) 44 Fordham L.Rev. 1, 19-24; compare Health and Safety Code section 7191.5, subdivision (a) (death resulting from withholding or withdrawal of life-sustaining treatment pursuant to Natural Death Act does not constitute suicide).


[95] *fn14 In the Court of Appeal, petitioner asserted that Andrews's actions hypothetically threaten security, but he failed to substantiate those speculations. On review, petitioner abandons the argument altogether. Consequently, we do not address the question of whether a member of the prison medical staff has standing to raise concerns for institutional security or whether such matters lie within the exclusive province of administrative authorities.


[96] *fn15 California Code of Regulations, title 15, section 3351, provides, "Medical treatment, including medication, will not be forced over the objections of a mentally competent inmate . . . except when immediate action is necessary to save the life or avoid serious physical damage to an inmate." Petitioner contends that because Andrews may die or substantially suffer without forced feeding, this regulation authorizes nonconsensual treatment. We do not construe section 3351 so broadly as to sanction infringement of the right to self- determination in medical decisions under these circumstances. Rather, the exception appears to be simply a statement of "the general rule that in cases of emergency, or unanticipated conditions where immediate action is found necessary for the preservation of the life or health of a patient and it is impracticable to first obtain consent to the operation or treatment," consent will be presumed and the physician may proceed. (Preston v. Hubbell (1948) 87 Cal. App. 2d 53, 57-58 [196 P.2d 113].)


[97] *fn16 Under the facts of this case, we have no occasion to address, and therefore do not decide, any related issues that might arise in the event an otherwise healthy inmate with no underlying affliction engages in a course of conduct for nonmedical reasons, such as a hunger strike, that subsequently necessitates therapeutic intervention to prevent death. (See, e.g., In re Caulk, supra, 480 A.2d 93; Zant v. Prevatte, supra, 286 S.E.2d 715; Von Holden v. Chapman, supra, 87 A.D.2d 66 [450 N.Y.S.2d 623]; State ex rel. White v. Narick, supra, 292 S.E.2d 54.)


[98] *fn17 Although proceedings in the superior court were ex parte and resolved before Andrews had any opportunity to respond, he has been ably represented by counsel since petitioner sought writ review in the Court of Appeal. From the record, counsel appears knowledgeable about state prison medical facilities in general as well as the particulars of this case.

Degrella v. Elston, 858 S.W.2d 698 (Ky. 07/15/1993)

[1] SUPREME COURT OF KENTUCKY


[2] No. 92-SC-756-TG


[3] 1993.KY, 858 S.W.2d 698


[4] Rendered: July 15, 1993.


[5] MARTHA SUE DEGRELLA, BY AND THROUGH HER GUARDIAN AD LITEM, HOMER PARRENT, III, APPELLANT
v.
JOSEPH G. ELSTON, APPELLEE


[6] ON TRANSFER FROM COURT OF APPEALS. NO. 92-CA-2173. APPEAL FROM JEFFERSON CIRCUIT COURT. HON. JOSEPH H. ECKERT, JUDGE. NO. 92-CI-1099


[7] ATTORNEY FOR APPELLANT: Homer Parrent, III, PARRENT, VISH & SMITHER, 700 Ky. Home Life Bldg., Louisville, KY 40202.


[8] ATTORNEY FOR APPELLEE: Mary Z. Ceridan, Bill V. Seiller, HANDMAKER & SEILLER, ACLU Cooperating Attorneys, 2200 Meidinger Tower, Louisville, KY 40202. David A. Friedman, General Counsel, AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, 425 W. Muhammad Ali Blvd., Louisville, KY 40202.


[9] ATTORNEY FOR AMICUS, ETHICS & ADVOCACY TASK FORCE: Vincent F. Heuser, Jr., 904 Cannons Lane, P. O. Box 35111, Louisville, KY 40232-5111. James Bopp, Jr., Thomas J. Marzen, Daniel Avila, John Altmare, 50 S. Meridan St., Ste. 605, Indianapolis, IN 46204-3541.


[10] ATTORNEY FOR AMICUS, KIRVEN, MEMBER OF THE BAR: Gerald Kirven, 2700 First National Tower, Louisville, KY 40202-3174.


[11] ATTORNEY FOR AMICUS, KY. ASSOC. OF HOSPICES: Laurance B. VanMeter, STOLL, KEENON & PARK, 201 E. Main St., Ste. 1000, Lexington, KY 40507.


[12] ATTORNEY FOR AMICUS, JANE DOE: Benjamin J. Lookofsky, P. O. Box 696, Mayfield, KY 42066.


[13] ATTORNEY FOR AMICUS, JEFFERSON CO. MEDICAL SOCIETY: Charles J. Cronan, IV, Martha J. Hasselbacher, STITES & HARBISON, 600 W. Main Street, Louisville, KY 40202.


[14] ATTORNEY FOR AMICUS, ATTORNEY GENERAL: Chris Gorman, Attorney General, Thomas J. Hellmann, Assistant Attorney General, Civil Division, 700 Capitol Avenue, Frankfort, KY 40601-3494.


[15] ATTORNEY FOR AMICUS, KENTUCKY HOSPITAL ASSOC.: Edgar A. Zingman, Susan B. Turner, Carole D. Christian, Lori E. Raff, WYATT, TARRANT & COMBS, Citizens Plaza, Louisville, KY 40202.


[16] ATTORNEY FOR AMICUS, CHOICE IN DYING, INC.: Ann E. Fade, Director of Legal Services, Choice in Dying, Inc., 200 Varick Street, New York, NY 10014. Patricia Walker Fitzgerald, WALKER & RADIGAN, 504 Republic Bldg., 429 W. Muhammad Ali Blvd., Louisville, KY 40202.


[17] Stephens, C.J., Combs, Leibson, and Spain, JJ., concur. Lambert, J., concurs by separate opinion. Wintersheimer, J., Dissents by separate opinion in which Reynolds, J., joins.


[18] Leibson


[19] Opinion OF THE COURT BY JUSTICE LEIBSON


[20] This is the first of the so-called "right to die" cases, spawned by modern medical technology, to reach this Court.*fn1


[21] As a result of a tragic beating inflicted upon her on February 22, 1983, Martha Sue DeGrella (Sue) sustained an acute subdural hematoma causing severe brain damage for which medical treatment was of no benefit. She now languishes, slowly wasting away, in a persistent vegetative state at the Lyndon Lane Nursing Home in Jefferson County, Kentucky. She receives nourishment and water through a gastrostomy tube surgically implanted into her stomach. She breathes through a tracheotomy tube inserted into her throat. These medical devices have been in place since March 4, 1983, with no significant possibility of improvement in her condition. With artificially supplied nutrition and hydration she may linger on many years in this condition. The doctors advise there is no "serious" report of a case where such a patient has recovered.


[22] Martha Elston, Sue's mother, was appointed her daughter's legal guardian by Order of Jefferson District Court in October 1991, and in February 1992, she filed the within action, naming Sue as the respondent and asking the appointment of a Guardian Ad Litem to advocate Sue's interests. Her petition seeks a declaratory judgment acknowledging Sue's persistent vegetative state and asking the court to declare that "Martha Elston, as mother of Sue DeGrella, is permitted by Kentucky law to substitute her judgment for that of her daughter." Strictly speaking, Martha Elston, the petitioner, does not seek a court order to disconnect the gastrostomy tubes used to provide nourishment and water for her ward and daughter, but a court declaration that she, as Sue's mother and Guardian, has the right to direct such discontinuation. The petition alleges, and she has now proved to the satisfaction of the trial Judge by clear and convincing evidence, that "if she [Sue] could speak, she would say, 'Let me go.'"


[23] This case is not in court because there is a dispute between the family members as to the patient's wishes, or between the physicians as to the medical evidence. The case is before our Court because Sue's attending physician and the nursing home rear legal sanctions, administrative, civil or even criminal, should they carry out the wishes of the patient as expressed through her mother and legal guardian. Being thus concerned, they have advised the family they require court authorization before permitting or participating in the removal of the medical device which provides Sue with nourishment and water.


[24] The Guardian Ad Litem did not file a response controverting the factual allegations of the petition, all of which now have been proved at trial. Nevertheless, the Guardian Ad Litem attended the trial, which took place over a two-day period in July 1992, appropriately tested the witnesses by cross-examination, and after the trial submitted a final report in which he recommended "that the court deny the relief sought." He stated:


[25] "Despite the horrendous situation in which the Elston family finds itself, your Guardian Ad Litem simply does not believe that there is anything in present Kentucky law which authorizes what the Plaintiff seeks. . . ."


[26] In Brief and oral argument the Guardian Ad Litem, who is now the appellant, has conceded that there is no dispute about (1) Sue's present condition, (2) the feelings she expressed as a competent adult about the subject at issue before this devastating condition was forced upon her, and (3) her medical prognosis. The court below decided that Sue DeGrella's mother and legal guardian,*fn2 has the right to direct her attending physician and the nursing home there Sue resides to disconnect the feeding tube that is maintaining her existence, and let her die. The Guardian Ad Litem challenges the legality of this decision, but fully agrees the facts are fairly stated in the trial court's Opinion.


[27] Within the context of this case, the issues are: (1) whether there is a right to choose to die as well as a right to live; (2) whether a person who has clearly stated, as a competent adult, that she would choose to die if ever reduced to the conditions presented, retains the right to do so after a devastating injury has rendered her incompetent and left her in a persistent vegetative state; and (3) if the answers to these two questions are in the affirmative, whether the right she retains may be exercised through a surrogate, in this case Sue's next of kin and legal guardian.


[28] In addressing these issues we must confront several subissues. If there is a right to choose to die in present circumstances: (1) what is the impact upon such right of two statutes enacted in 1990, the Kentucky Living Will Act (KRS 311.622-.644) and the Health Care Surrogate Act of Kentucky (KRS 311.970-.986); (2) do statements made by a person when competent regarding the desire to forego medical treatment in the future under certain conditions provide an evidentiary basis for surrogate decision-making when the patient is rendered incompetent; (3) do the powers of a legal guardian or next of kin ever extend to authorizing the withdrawal of life prolonging medical treatment, even with a person in Sue's condition; and (4) to what extent, if any, should courts be authorized or required to play a role in the decision-making process?


[29] There is one prefatory issue which we must address before embarking on this Discussion lest our words be misunderstood as he first step onto a slippery slope, or misapplied by trial courts in future cases: that is the quality-of-life issue. As long as the case is confined to substitute decision-making by a surrogate in conformity with the patient's previously expressed wishes, the case involves only the right of self-determination and not the quality of life. However, as evidence regarding the patient's wishes weakens, the case moves from self-determination towards a quality-of-life test. At the point where the withdrawal of life-prolonging medical treatment becomes solely another person's decision about the patient's quality of life, the individual's "inalienable right to life," as so declared in the United States Declaration of Independence and protected by Section One (1) of our Kentucky constitution, outweighs any consideration of the quality of the life, or the value of the life, at stake. Nothing in this Opinion should be construed as sanctioning or supporting euthanasia, or mercy killing. We do not approve permitting anyone to decide when another should die on any basis other than clear and convincing evidence that the patient would choose to do so. This was the decision of the trial court in this case, and it is this decision which we affirm.


[30] The trial court's Findings of Fact, Conclusions of Law and Judgment, entered September 3, 1992, comprise some 49 pages and ban hardly be summarized within the confines of this Opinion. Eleven witnesses testified, including Sue's mother, two brothers, a sister, her former husband, three doctors, the nursing home administrator, and two theologians. Irreversible brain damage has destroyed Sue's higher brain functioning. Only her brain stem continues to function, continuing to operate her respiration and heart. With continued feeding she may live many years. However, her brain and her body will continue to wither. She reacts only at a reflexive level, meaning she will withdraw from painful stimulus, but does not experience pain by cognitive thought. Ceasing the nutrition and hydration will cause no pain, although, likewise, continuing treatment causes no pain. With the withdrawal of the feeding tube, all signs of life will expire in about ten to twelve days.


[31] The finding of the trial court, supported by the uncontroverted medical evidence, is:


[32] "The provision of nutrition and hydration by way of a gastrostomy tube is found to be an artificial intrusion into the body of Sue DeGrella and under the circumstances of this case is deemed by the Court to be an extraordinary measure utilized to perpetuate her life signs."


[33] The trial court found by "clear and convincing evidence" that the proof sustained the allegations of the Complaint, both as to the medical facts regarding Sue's condition and prognosis and as to her choice as she expressed it to family members on different occasions and in different contexts; specifically, as the subject came up in conversation on various occasions, that if she were ever faced with a devastating injury or illness incapacitating her such as she is now incapacitated, she would want her treatment terminated rather than having her life prolonged by artificial means. As stated by the trial court:


[34] "She repeatedly expressed the view that she would not want to be kept alive by artificial means. She found the plight of Karen Ann Quinlan and Quinlan's continued treatment to be abhorrent to her.*fn3 She hated any limitations on her abilities and she feared being reduced to being dependent on others. She went so far as to protest being put on a respirator after her second automobile accident, even though no question ever existed that she would recover.


[35] While she never specifically stated that she did not want nutrition and hydration in the event she was in a persistent vegetative state, it would be unreasonable to require such a high degree of specificity on her part."


[36] The trial court found that the respondent:


[37] ". . . rejected during her life time and at times when she was competent the principle that life must be maintained at any cost. To the contrary she expressed explicitly on many occasions her desire that her life not be maintained if she would come to be under conditions which would require extraordinary means to preserve her life."


[38] Based on this evidence the trial court held, inter alia:


[39] "(6) The Petitioner, mother of the Respondent, as surrogate as well as next of kin, has the power to act in the stead of Sue DeGrella. In such capacity she may elect to direct the discontinuance of further life saving treatment on behalf of Sue DeGrella."


[40] The question raised by this case is of profound public importance: can the trial court lawfully sanction the right of the legal guardian and next of kin of an incompetent person in a persistent vegetative state to terminate artificial nutrition and hydration? Thus, when the Guardian Ad Litem appealed the trial court's final judgment, we granted transfer.


[41] At the outset, we note the appellant does not question the common law right of a competent person to forego medical treatment, either by refusal or withdrawal. As stated in Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 35 L.Ed. 734 (1891):


[42] "No 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 other, unless by clear and unquestionable authority of law."


[43] This right was expressed by Judge Benjamin Cardozo, during his tenure on the high court of New York, as follows:


[44] "Every 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." Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 130, 105 N.E. 92, 93 (1914).


[45] This same right was duly noted by our Court in Tabor v. Scobee, Ky., 254 S.W.2d 474 (1951), a suit against a surgeon who discovered that his patient's Fallopian tubes were infected and diseased during an operation for appendicitis, and who removed them without first obtaining the consent of the patient's stepmother who was nearby. Our Court held the facts stated constituted a cause of action against the surgeon even though the surgeon's treatment was approved by the testimony of his professional colleagues" (Id. at 475); the patient, who was a minor, through her stepmother, had the right to decide whether she wished to undergo or refuse this medical procedure unless an immediate life-threatening emergency made it impractical for the surgeon to obtain the stepmother's consent before removing the patient's Fallopian tubes.


[46] Tabor v. Scobee holds that the person with parental authority was to be consulted to obtain consent on behalf of her underage stepdaughter unconscious on the operating table. From this we infer that here Martha Elston had similar authority to refuse further medical treatment on behalf of her adult incompetent child, not in all circumstances, but in appropriate circumstances where there is no state interest in sustaining life specifically identified which is of sufficient importance to outweigh it. Certainly the facts in Tabor v. Scobee tear at the heart of the appellant's contention that, although a competent adult has a common law right to refuse or forego medical treatment or surgical intervention, no one has authority to engage in surrogate decision-making for an incompetent, as Martha Elston sought to do for her daughter in present circumstances.


[47] The only other Kentucky case of which we have knowledge having any bearing on the issue presented is Strunk v. Strunk, Ky., 445 S.W.2d 145 (1969). Strunk was a petition by the mother of an adult, incompetent son, who had been appointed as his committee, asking the court to recognize her authority to authorize the transplant of this son's healthy kidney as a donor to his brother who was suffering from a fatal kidney disease.


[48] "The [trial] court found that the [brother's] operation was necessary, that under the peculiar circumstances of this case it would not only be beneficial to [the donee] but also beneficial to [the incompetent donor] because [the donor] was greatly dependent upon [the donee], emotionally and psychologically, and that his well-being would be jeopardized more severely by the loss of his brother than by the removal of a kidney.


[49] Id. at 146.


[50] Our Court affirmed the trial court, recognizing "the inherent power of the equity courts with regard to incompetents." Id. at 147. The decision engages the subject of "substitute judgment," refuting the Guardian Ad Litem's claim in the present case that the guardianship statutes do not specifically authorize a legal guardian to make personal decisions of this nature. In Strunk we state:


[51] "The right to act for the incompetent in all cases has become recognized in this country as the doctrine of substituted judgment and is broad enough not only to cover property but also to cover all matters touching on the well-being of the ward." Id. at 148.


[52] We quote from a legal treatise:


[53] "Where legal disability of the individual is shown, the jurisdiction of the court is plenary and potent to afford whatever belief may be necessary to protect his interests and preserve his estates. . . . While this is indeed a special exercise of equity jurisdiction, it Is beyond question that by virtue thereof the court may pass upon purely personal rights." Id. at 147.


[54] The operation contemplated in Strunk had no bearing on the physical well-being of the incompetent brother. Our court was approving the guardian's choice as to what would be "beneficial to Tommy" based on psychological and emotional considerations of the ward that outweighed physical health and mere survival. Again quoting from a treatise, the court referred for authority to an English case where the


[55] ". . . Lord Chancellor permitted the allowance of an annuity out of the income of the estate of [a] lunatic earl as a retiring pension to the latter's aged personal servant" because the court was "'satisfied that the Earl of Carysfort would have approved if he had been capable of acting himself.'" Id. at 148.


[56] The appellant cites us no authority to the contrary. The appellant relies solely on the failure of the Kentucky statutes related to guardianship to cover specifically the present situation. We view the statutes related to "Guardianship and Conservatorship for Disabled Persons," KRS 387.500 et seq., as remedial rather than exclusive. These statutes intend to provide services for incompetent persons not only as specifically articulated but also as reasonably inferable from the nature of the powers of a guardian, which include in KRS 387.660:


[57] "(2) To make provision for the ward's care, comfort and maintenance. . . .


[58] (3) To give any necessary consent or approval to enable the ward to receive medical or other professional care, counsel, treatment or service [with the exception of certain procedures which require court approval except in an emergency situation].


[59] (4) Do act with respect to the ward in a manner which limits the deprivation of civil rights and restricts his personal freedom only to the extent necessary to provide needed care and services to him."


[60] We quote from Rasmussen By Mitchell v. Fleming, 741 P.2d 674 (Ariz. 1987), addressing the right of a guardian to terminate nutrition and hydration for a person in a persistent vegetative state:


[61] "A competent person clearly has the ability to exercise the right to refuse medical treatment. So, too, does an incompetent individual who has made his or her medical desires known prior to becoming incompetent. Id. at 685-86.


[62] The guardian ad litem argues that a guardian's right to consent to or approve medical treatment does not include the right to refuse medical treatment. . . .


[63] First, we approve of the following quote from Rasmussen:


[64] "The consequences of a decision to terminate medical treatment will often be irreversible. Therefore, the court in any dispute will assume that the patient wishes to continue receiving medical treatment, and the burden to prove otherwise will rest on the party or parties desiring to terminate the treatment." Id. at 691.


[65] We view "best interest," in present context, exclusively from the standpoint of the health and well-being of the ward and synonymous with the decision the ward would choose to make if conscious and competent to do so.


[66] "Under the substituted judgment standard, the guardian 'attempt[s] to reach the decision that the incapacitated person would make if he or she were able to choose. ' . . . This standard best guides a guardian's decisionmaking when a patient has manifested his or her intent while competent." Id. at 688.


[67] We do not go the next step, as the Arizona court did in the Rasmussen case, to decide that "best interest" can extend to terminating life-sustaining medical treatment where the wishes of the ward are unknown.


[68] The position of the appellant is that "a guardian is a fiduciary and it is unthinkable that a fiduciary could properly act so as to bring about the ward's death." While we recognize that this argument has superficial appeal, the courts in seventeen of our sister states which have pondered the same issue presented here have not found it "unthinkable." Indeed, every state that has considered the matter has upheld the right of patients in a persistent vegetative state, through surrogates, to elect to withdraw such medical care: some courts based their decision on common law rights and some on common law viewed as constitutionally protected. These seventeen states are Arizona, California, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Maine, Massachusetts, Minnesota, Missouri, New Jersey, New York, Ohio, Rhode Island, and Washington.*fn4 Most of these cases are covered in the Opinion of the United States Supreme Court in Cruzan v. Director Missouri Depart. of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990). The decisions reviewed in Cruzan reason that where the wishes of the patient are plainly manifest from statements made when competent, the right of self-determination should not be lost merely because an individual is no longer able to sense a violation of such right.


[69] In every state, when the court has been persuaded of the wishes of the incompetent patient, the court has honored those wishes. In all but two states, Missouri and New York, even when the court has been unable to precisely determine the express wishes of the patient, it has allowed the patient's family, or the patient's guardian, to exercise substituted judgment as to what the patient would wish. The cases from Missouri and New York, Cruzan v. Harmon, 760 S.W.2d 408 (Mo. banc 1988) and Matter of Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (N.Y. 1981), recognize the common law right to refuse treatment is retained by an incompetent, but require clear and convincing evidence that the incompetent person, while competent, expressed the desire that such treatment be refused in the circumstances presented. In the present case the trial court used "clear and convincing evidence" as the standard for making its decisions, so we need not decide whether a mere preponderance of evidence would have sufficed. Clear and convincing evidence was introduced, of both the patient's irreversible persistent vegetative state and the strength of the patient's commitment to the termination of life in such circumstances. Once we recognize the possibility of any circumstances where the right of self-determination of terminating medical treatment can still be exercised through a surrogate, the present circumstances qualify for its application.


[70] The appellant contends the common law right of self-determination in, and informed consent to, obtaining medical treatment has been attenuated by legislative policy expressed in the Kentucky Living Will Act, supra, and the Health Care Surrogate Act of Kentucky, supra, to the extent that it can no longer be said to apply to an incompetent person in a persistent vegetative state. But neither of these statutes specifically applies to the present situation, and when we study them looking for a policy overriding the common law right to refuse medical treatment, they send mixed messages.


[71] For example, the Living Will Act begins with a reaffirmation of the common law right, a legislative finding "that all adults have the fundamental right to control the decisions relating to their own medical care, including the decision to have medical or surgical means or procedures calculated to prolong their lives provided, withheld, or withdrawn." KRS 311.622(1). The statute goes on from there to specify one method by which a competent adult, through a "living will" as detailed in the Act, can "make a written declaration. . .instructing the adult's physician to withhold or withdraw life-prolonging treatment in the event such person is diagnosed as having a terminal condition." KRS 311.622(2). But it does not purport to be exclusive, or to supersede common law rights.


[72] KRS 311.624(5)(b) specifies that in a living will document executed pursuant to the statute "'life-prolonging treatment' shall not include the administration of medication or the performance of any medical procedure deemed necessary to alleviate pain or for nutrition or hydration." But the argument that the limitations in the Living Will Act express a policy for situations beyond the scope of the statute is conclusively refuted by KRS 311.640, which specifies in subsection (1) that the Act "creates no presumption concerning the intention of an adult who has revoked or has not executed a declaration" using the Act, and in subsection (2) that the Act "shall not. . .impair or supersede any common law or statutory right that an adult has to effect the withholding or withdrawal of medical care."


[73] KRS 311.636, states that "nothing in [the Living Will Act] shall be construed to condone, authorize or approve mercy killing or euthanasia, or to permit any affirmative or deliberate act to end life other than to permit the natural process of dying. " (Emphasis added.) "Mercy killing" and "euthanasia" or any other "affirmative or deliberate act to end life" are fundamental violations of the common law. The key phrase is the last phrase, "other than to permit the natural process of dying," and this phrase explains, clarifies and limits what is meant by an "affirmative or deliberate act to end life." This phrase recognizes that the advances of medical technology have made it possible to sustain existence when life has ended except for the "natural process of dying." This is not an objective inquiry into the quality of life, but a subjective inquiry into whether the patient wishes the continuation of medical procedures to interdict "the natural process of dying."


[74] The withdrawal of nutrition and hydration from a person in Sue DeGrella's state, irreversible brain damage and a prolonged period in a persistent vegetative state, is medically recognized as fitting the definition of "permitting the natural process of dying" as documented by the evidence in the record before us.*fn5 We could not reach a different definition, even if we were so inclined, except by indulging in an abstract Discussion about the "meaning of life" or "quality of life" that would substitute our personal opinions for the evidence introduced at trial as expressed through the findings of the trial Judge.


[75] Likewise, we find no special meaning in the bundle of rights legislatively provided by the "Health Care surrogate Act of Kentucky," supra, that limits or contravenes the patient's common law rights in the present situation. This Act grants a person "with decisional capacity" the right to "designate" others "as a surrogate or successor surrogate to make any health care decision on behalf of the grantor, excluding the right to withhold or withdraw artificial nutrition and hydration," except


[76] "when the burden of the provision of artificial nutrition and hydration itself shall outweigh its benefit, provided the determination of burden shall refer to the provision itself and not to the quality of the continued life of the person." KRS 311.978(3)(c).


[77] It is difficult to interpret what the statute means by the word "burden" for a person in a persistent vegetative state. We need not decide for a person like Sue DeGrella who has clearly stated, while competent, that should she ever be reduced to a condition such as she is now in, she would want treatment terminated. Sue has established that for her "the burden of the provision of artificial nutrition and hydration. . .outweighs its benefit."


[78] In any event, the Health Care Surrogate Act, just as the Living Will Act, specifies that it supplements rather than limits common law rights. In KRS 311.984(5) it states that the Act "shall not. . .impair or supersede any common law or statutory right that an adult has to effect the withholding or withdrawing of medical care."


[79] Having determined that neither the Living Will Act nor the Health Care Surrogate Act intends or attempts to contravene or supersede Sue DeGrella's common law rights, we need not, and do not, extend this Opinion by addressing constitutional questions which would arise if the contrary were so. Constitutional questions would arise only if these Acts were interpreted as a legislative effort to impair rights of self-determination or personal autonomy which the constitution protects. Several of the decisions from our sister states have recognized constitutional protection for the right of the incompetent individual in Sue DeGrella's circumstances to have nutrition and hydration withdrawn through the process of surrogate decision-making, usually based on protection of a constitutional right of privacy. That question is moot in this case because, as we interpret the acts of the General Assembly, they leave common law rights intact.


[80] Now we turn our attention to the evidence question. As previously stated, the Guardian Ad Litem questions how Sue's prior statements against being maintained on an artificial life-support system, no matter how credibly attested to by other persons, may constitute a legal basis for a surrogate decisionmaker ("whether a guardian, a family member or a Judge") to later decide to terminate life-prolonging medical treatment. He presents no authority in point. Instead he argues: (1) an analogy to statutes which, in some instances require written proof of an action taken before it can be given effect, statutes such as KRS 394.040, the requisites of a valid will; and (2) the possibility the now incompetent person may have experienced an unknown change of heart after having voiced the choices her family is now trying to effectuate.


[81] The analogy to the formalities required in the making of a will is unsound because the right to refuse or terminate medical treatment, unlike the power to devise property by will, does not come from the state. It inheres in a person's right of self-determination in the choice of medical treatment, and as yet the state has not attempted to interfere in its exercise.


[82] As to the more difficult question, the evidentiary value of past statements of preferences to govern subsequent treatment decisions, these comments made by Justice William Brennan fairly frame the issue:


[83] "When a person tells family or close friends that she does not want her life sustained artificially, she is 'expressing her wishes in the only terms familiar to her, and . . . as clearly as a lay person should be asked to express them. To require more is unrealistic, and for all practical purposes, it precludes the rights of patients to forego life-sustaining treatment." 110 S. Ct. at 2875.


[84] We recognize that previous oral statements cannot be considered conclusive in nature. The oral directives the patient gives to a family member, friend or health care provider are of significant value as a relevant evidentiary consideration, but there are other evidentiary matters which may outweigh such statements, such as written directives to the contrary, reactions the patient voiced regarding particular types of medical treatment, religious beliefs and the tenets of that religion, or the patient's consistent pattern of conduct with respect to prior decisions about his own medical care. These considerations are discussed in In re Conroy, supra, 98 N.J. at 361, 486 A.2d at 1229-30. But the fact that other evidentiary considerations, where available, may outweigh oral statements does not rule them out as reliable evidence to guide surrogate decision-making, where such statements have been made as in the present case.


[85] On the contrary, such evidence falls within the parameters of the exception to the hearsay rule now codified in the Kentucky Rules of Evidence, KRE 803(3), recognizing the admissibility of a "statement of he declarant's then existing state of mind, emotion, sensation, or physical condition" where relevant to the issue at hand. For instance, in L.K.M. v. Dept. for Human Resources, Ky.App., 621 S.W.2d 38 (1981), a termination of parental rights case depending upon proof by clear and convincing evidence (the same standard used in the present case), the court said it was proper to use previous out-of-court statements of children offered to prove "intense fear" of their parents, even though the pertinent state of mind was at the time of trial. Likewise, in Jefferson Standard Life Ins. Co. v. Hewlett, 307 Ky. 171, 210 S.W.2d 352 (1948), an action to recover the life insurance proceeds on a person who had disappeared, our Court permitted the beneficiary to prove that the insured had previously expressed intentions to commit suicide. And in Wilson v. Commonwealth, Ky., 551 S.W.2d 569 (1977), our Court ruled that statements showing the deceased's previously expressed intention to kill the appellant should have been admitted as proof that the victim was the initial aggressor.


[86] As stated in Lawson's treatise, The Kentucky Evidence Law Handbook, 3rd Ed., Sec. 8.50, p. 435 (1993):


[87] "It is well-settled that relevancy of expressions of states of mind can exist without a concurrence in point of time between the making of the statements and states of mind required to be proved."


[88] Sue DeGrella's statements of choice made before she became incompetent, while not dispositive of the question at hand, are competent evidence upon which a surrogate decision-maker could exercise substitute judgment in the circumstances presented.


[89] They conclude the right to withdrawal of further medical treatment for a person in a persistent vegetative state exists within the framework of the individual's common law rights of self-determination and informed consent in obtaining medical treatment. In this Opinion we have recognized these rights can be exercised by an incompetent person through the process of surrogate decision-making so long as the wishes of the patient are known. The right to terminate medical treatment is not a power belonging to the judiciary to grant or withhold. The purpose of a declaratory judgment action is to judicially define the rights the parties already have, not to create new rights where none exist, or to withhold them. This case came to the trial court because the attending physician and nursing home would not recognize the patient's right to choose to refuse treatment through her surrogate, not because there is any law requiring the court's prior consent to the exercise of the patient's right. Courts are, and must be, open to decide cases where a controversy exists, including a controversy in a case of this nature. Controversy exists only when someone challenges the existence of a right or the facts to support its exercise. Here, the lawfulness of the act of withholding further treatment depends on the existence of the underlying facts that established the patient's condition, her wishes in such condition, and the irreversible nature of the condition.


[90] The appellant does not challenge these facts; the appellant challenges the existence of the right even though the facts exist, and we affirm the existence of such right. The subject matter of this action is not judicial power to terminate treatment, but Sue DeGrella's right to terminate treatment, a choice she made before she was reduced to her present state, and retained when this tragedy befell her. Thus, though the courts are open for such cases, if no one challenges the existence of the underlying facts, legal action is not essential to the exercise of the patient's right.


[91] The question to be decided is a factual one, not a legal one. If the attending physician, the hospital or nursing home ethics committee where the patient resides, and the legal guardian or next of kin, all agree and document the patient's wishes and the patient's condition, and if no one disputes their decision, no court order is required to proceed to carry out the patient's wishes. Future criminal sanctions or civil liability turn not on the existence or absence of a court order, but on the facts of the case. Judicial intervention into private decision-making of this sort is expensive and intrusive. No liability attaches to a decision to refuse or withdraw treatment in a case of this nature once the necessary facts are established and carefully documented by the parties involved. On the other hand the court cannot absolve the parties from liability where the facts do not exist to support the action taken. A false or fraudulent, and collusive, decision is beyond the power of a court to approve before or after the termination of life-sustaining medical treatment.


[92] Because of the advances in modern medical technology, the time has come for people to give serious consideration to their choices if a tragedy of this nature should befall them, to decide what they would want done in such circumstances, and to make their wishes known so that family and health care providers can respect their decision.


[93] For the reasons stated, we affirm the judgment of the trial court.


[94] Stephens, C.J., Combs, Leibson, and Spain, JJ., concur. Lambert, J., concurs by separate opinion. Wintersheimer, J., Dissents by separate opinion in which Reynolds, J., joins.


[95] Disposition


[96] AFFIRMING


[97] CONCURRING OPINION BY JUSTICE LAMBERT


[98] While I concur with the result achieved by the majority, I write separately to express my reservations with respect to dictum in the opinion and the potential created for an erroneous application of the legal principles involved.


[99] The result here is compelled by the evidence. Kentucky and virtually every common law jurisdiction have long recognized the principle that a person has a right to refuse medical treatment. Taylor v. Scobee, Ky., 254 S.W.2d 474 (1951). From the evidence presented and as found by the trial court, it appears that Ms. DeGrella had on numerous occasions expressed the firmly held view that her life should not be prolonged artificially and that the normal process of dying be permitted to occur. As such, it makes little difference in this case as to what legal standard is applied for the outcome would be the same.


[100] I am deeply concerned, however, that the majority opinion may be understood to authorize surrogate decision making or substituted judgment'*fn1 as a legal standard whereby the judgment of a close family member or other person would prevail as to what the patient would have wanted even in the absence of a clear declaration of such by the patient. Such a standard is a significant step beyond merely allowing relatives, friends, medical personnel, or other credible sources, including writings, to report the wishes of the patient as expressed prior to the time of incompetence. While it is obvious that substituted judgment for the termination of medical treatment is rife with the potential for abuse, a more fundamental objection is that the perceived moral and ethical values of the patient may be lost or significantly influenced by the values of the surrogate. Moreover, there is a substantial danger that "quality of life" considerations may leak into the analytical process. As it is commonly understood, substituted judgment would likely be so subjective as to undermine any confidence that the patient's wishes were being truly observed. We should declare in this case that neither family members nor doctors and certainly not Judges possess the power to authorize cessation of medical treatment in the absence of clear and convincing evidence that the stricken person had (not would have) expressed the desire to avoid continuation of life in a persistent vegetative state.


[101] While the majority has established "clear and convincing evidence" as the standard for decision making, I remain uncertain as to whether this standard applies to assessment of the patient's medical condition or determining the patient's wishes with respect to discontinuation of medical treatment. While the majority is correct in saying that the evidence here is clear and convincing with respect to both questions, we should state unmistakably that such evidence with respect to the patient's wishes must be present whenever discontinuation of medical treatment is contemplated.


[102] My greatest misgiving about the majority opinion is in what appears to be its amalgamation of the relevant concepts: (1) dispositive declarations prior to incompetence and (2) substituted judgment. The majority has said:


[103] "Sue DeGrella's statements of choice made before she became incompetent, while not dispositive of the question at hand, are competent evidence upon which a surrogate decision-maker could exercise substitute judgment in the circumstances presented.


[104] ". . . In this Opinion we have recognized these rights [self- determination and informed consent] can be exercised by an incompetent person through the process of surrogate decision-making so long as the wishes of the patient are known."


[105] I regard the foregoing as contradictory or misleading as substituted judgment is unnecessary in circumstances as prevail here where the wishes of the patient are known and evidenced clearly and convincingly. True substituted judgment would be necessary, if lawful, only when the wishes of the patient were not clearly ascertainable.


[106] Finally, the majority has sought to prevent litigation in cases of this type by declaring that:


[107] "If the attending physician, the hospital or nursing home ethics committee where the patient resides, and the legal guardian or next of kin, all agree and document the patient's wishes and the patient's condition, and if no one disputes their decision, no court order is required to proceed to carry out the patient's wishes. Future criminal sanctions or civil liability turn not on the existence or absence of a court order, but on the facts of the case.


[108] While I concur fully with this view, it must not be overlooked that all such persons are charged with the duty of rightly estimating the situation and upon failure to do so, may be held legally accountable. As this Court said in Bailey v. Commonwealth, 235 Ky. 173, 30 S.W.2d 879, 880 (1930), and reiterated in O'Leary v. Commonwealth, Ky., 441 S.W.2d 150, 155 (1969):


[109] "It is firmly established by decisions of equal authority that a criminal law is not unconstitutional [or void for vagueness] merely because it throws upon people the risk of rightly estimating a matter of degree which deals with fixed and actual, as distinguished from imaginary and unascertained, conditions."


[110] The majority has accurately stated:


[111] "The court cannot absolve the parties from liability where the facts do not exist to support the action taken."


[112] Those who undertake to carry out the wishes of one in a persistent vegetative state should be admonished to exercise the utmost good faith and absolute obedience to the directions which have been given by the patient.


[113] ING OPINION BY JUSTICE WINTERSHEIMER


[114] I respectfully Dissent from the majority opinion because I believe the court system lacks the authority to grant the relief sought and the standard of proof required is not sufficiently high in this type of case.


[115] This is an action for declaratory relief brought originally by Sue DeGrella's mother seeking approval to withdraw a feeding and hydration tube from her 44 year-old daughter who has been in a persistent vegetative state for approximately 10 years. The mother sought a declaration of rights to the effect that she would be permitted by Kentucky law to substitute her judgment for that of her daughter and that she has the right to direct the discontinuation of gastrostomy tubes used to provide nourishment and water to her daughter.


[116] This case brings into sharp focus much of the current Discussion about the so-called right to die. It is of great importance to define the terms of this case and its application both specifically and generally. There is an enormous difference between the withdrawal of food and water, also called nutrition and hydration and the withdrawal of medical treatment. In my view, the majority merges the concepts by stating that the artificial feeding of a patient by a tube amounts to extraordinary medical treatment. I disagree. Sue DeGrella is not really being treated, she is being maintained through nourishment.


[117] Withdrawal of food and water will result in death by starvation or dehydration. There is a danger in an over generalization of the specific problem presented here and its application to a broad class of people and the potential consequences arising therefrom. We must carefully consider the classes of people who could possibly be affected by this decision. 1) Sue DeGrella and her family. 2) Those in nursing homes and the handicapped in similar situations. 3) The rest of the population of Kentucky who may face a similar situation in the future. In addition, there is the ever-present problem of factoring in the economic ingredient of public taxpayer funding of Medicare and medical support for those in nursing homes or in a persistent vegetative state.


[118] Death is a very private and personal matter between the individual and the Creator. However, as with every other human event it has an impact on other people both direct and indirect, as well as immediate and remote. Human beings are endowed by their Creator with an independent free will. Such free will can be exercised freely, subject only to moral accountability. Courts and governments have no place in such an equation.


[119] This decision is a purely secular one. However, certain ethical values are at the very foundation of our modern civilization. They are based on the moral law and expressed through the natural and civil law. It is always a struggle for the judicial system to properly resolve such weighty questions.


[120] The problem presented here is how does a civilized society react when an individual is incompetent to express her own wishes and her entire family and medical and hospital support believes she should be allowed to die. The individual circumstances are indeed tragic and have caused the members of the DeGrella family great anguish. More than the individual case, this situation has the potential for establishing a rule of law that could be applied to other individuals similarly situated who would have a different reaction and approach. I believe that judicial intervention into private decision-making of this sort is expensive and intrusive. The right to terminate medical treatment is not a power belonging to the judiciary to grant or withhold. This case is here only because the attending physician and the nursing home would not recognize the wishes of the family to refuse nutrition through her surrogate or guardian. There is no law requiring prior consent by any court for the exercise of such a decision. There has long been a common law right to refuse medical treatment by a competent adult. This is a question of whether food and water provided by a tube is an artificial means of life support. It is not medical treatment.


[121] Sue DeGrella is unable to eat, chew or swallow. She receives food and water by means of a gastrostomy tube which has been surgically inserted in her abdomen. Without the use of the tube she would ultimately die by starvation or dehydration. She experiences no discomfort or any pain by reason of the use of the feeding tube. Although some medical literature has references to individual who have recovered from this condition at least in part, the general medical opinion is that a persistent vegetative state is irreversible and one of the witnesses testified that her chances for recovery were infinitesimal but not nil.


[122] Sue DeGrella did not execute what is now known as a Living Will pursuant to K.R.S. 311.624 or designate a health care surrogate pursuant to K.R.S. 311.978. She could not have done so prior to her injury because these statutes did not exist at that time.


[123] In reaching a decision based largely on a judicial interpretation of public policy as expressed by the legislature I believe it is important to consider the existing Living Will legislation in order to determine such public policy in this case. The medical evidence indicates that Sue DeGrella is not terminally ill. She could not soon die because of her injuries. Even if she were terminally ill and had a Living Will, the remedy sought here could not be granted under the terms of that statute. The withdrawal of nutrition and hydration is not authorized in a terminal case and even where the statute with its precise requirements for execution has been followed, the only reasonable interpretation of the public policy supporting the statute is that such withdrawal must necessarily be inappropriate and unauthorized in circumstances where death is not otherwise imminent, as in this case. The Living Will Act applies only to terminally ill patients.


[124] The absence of any statute in Kentucky directly on point increased the need to resort to a careful public policy analysis. An objective review of these statutes requires a logical Conclusion that the withdrawal of food and water from a nonterminally ill comatose individual violates the public policy of this State.


[125] K.R.S. 311.978 (3) provides in part that nutrition and hydration ". . . always be provided." I believe this phrase captures the thrust of the legislative intention in the clear language expressed. In the 1992 regular session of the General Assembly, the so-called "No food and water" amendment offered to the Kentucky Living Will Statute was defeated. I believe this is further evidence that the General Assembly had a preference for providing basic necessities such as food and water.


[126] In the circumstances of this particular case, it is very questionable if the prior statements of a now incompetent person can form a proper legal basis for a decision to withdraw nutrition and hydration from that person. There is almost unanimous testimony that Sue DeGrella had expressed her feelings against being maintained on an artificial life support system. It should be noted that none of the testimony indicated that she had specifically considered the question of the withdrawal of nutrition and hydration.


[127] The fundamental legal issue is whether such verbal statements, regardless of the credibility of the witnesses who attest to them, can become the legal basis for the discontinuance of a life support system and specifically nutrition and hydration. This is not a new concern. See Cruzan v. Harmon, 760 S.W.2d 480 (Mo. 1986); In Re Jobes, 108 N.J. 394, 529 A.2d 434 (N.J. 1987).


[128] Matters of far less importance than death or life may not legally be based on purely oral expression. Such matters include: the enforceability of various contracts under the Statute of Frauds, K.R.S. 371.010; the prohibition against Wills other than in writing, K.R.S. 394.040. Of additional concern is the obvious impossibility to really know whether the patient ever had a change of heart, either expressed or unexpressed when actually faced with a life or death decision. Here there was repeated testimony about generalized opposition to artificial life supports by the patient before she suffered her injuries.


[129] In addition, there is a technical legal argument that authority to withdraw life supports is governed by agency law. Oral authority such as testified to in his case, does not meet the requirements of a durable power of appointment pursuant to K.R.S. 386.093. The common law principle is that the authority of the agent terminates upon the incapacity of the principal. Cf. Rice v. Floyd, Ky., 768 S.W.2d 57 (1989). The seriousness of this situation must be balanced and reconciled with existing laws governing existing situations which apply to all persons.


[130] In my view, under Kentucky law neither the guardian or the family of a nonterminally ill patient may use substituted judgment to make a decision which results in the death of the patient. I cannot agree that a substituted judgment standard exists in Kentucky because of Strunk v. Strunk, Ky., 445 S.W.2d 145 (1969).


[131] As noted by the trial Judge in his lengthy opinion, Cruzan I supra, stated that there was ". . . no principal legal basis which permits the co-guardians in this case to chose the death of their ward."


[132] Kentucky law regarding the power of a guardian is expressed in K.R.S. 387.660(3). The authority of a guardian pursuant to the Kentucky statutes can only be exercised in limited categories for the purpose of achieving the life, health and appropriate care of the ward. A guardian is a fiduciary and it is difficult to understand any circumstances that would cause the death of a ward through the proper exercise of guardian responsibility. The right to refuse medical treatment in the case of a nonterminally ill person is a personal decision and is not the type of decision which a guardian appointed under Kentucky statutes may make on behalf of an incompetent.


[133] Reliance on Strunk, supra, is of marginal value. This Court in a 4 to 3 decision held that a guardian could consent to the removal of one of the ward's kidneys for transplant to the ward's brother in order to save the brother's life. This case is based on entirely different facts. Here the act sought to be performed under the authority of the substituted judgment rule would result ultimately in the death of the ward. That was not the case in Strunk. I do not believe that the holding in Strunk is sufficient authority to authorize the withdrawal of food and water under the substituted judgment rule in this case. In addition, Strunk has been eroded by the enactment of K.R.S. 387.660(3).


[134] Regardless of how sincere the witnesses and family are, or how much we can sympathize with them, I do not believe Strunk should be extended so as to permit death because another person or court believes that it is in her best interest. See Justice Steinfeld's Dissent in Strunk.


[135] II - CONSTITUTIONAL QUESTIONS AND GUIDELINES


[136] In reviewing this type of case, there must be precise attention to the specific subject matter presented. The broad substantive issues connected with mercy killing or euthanasia, assisted suicide, or life-sustaining medical treatment, must be distinguished from the removal of essential food and water to the patient. If as a result of this decision Sue DeGrella's death ultimately follows, it will not be from being in a persistent vegetative state, nor from the effects of the vicious beating. She will die or be killed, as you prefer, by the inherently lethal action of withholding food and water. Probably that can be accomplished either by the surgical removal of the feeding tube, or by the withholding of food and water. The result is the same: death from starvation.


[137] It could be argued that the long-term use of a feeding the is an artificial intrusion, but the supply of food and water to one who is unable to supply themselves is certainly not artificial. Can a valid distinction be drawn between the feeling of a patient and the force feeding of an infant by a parent? This case is about an incompetent adult who cannot express her wish as to life or death and who did not so express a wish prior to her injuries.


[138] This matter cannot be fully considered without reference to constitutional questions particularly in view of the recent decision in Doe v. Cowherd, 965 F.2d 109 (6th Cir. 1992). In a case involving an incompetent, matters relating to the so-called "right to die" also involve questions relating to the constitutionally protected right to live and to accept treatment.


[139] As a ward of the State, Sue DeGrella enjoys the constitutionally protected right to live and to accept life-sustaining treatment that should not be deprived of her by anyone without due process of law or equal protection considerations.


[140] In this case, the patient is an adult ward of Kentucky and because of her disabilities, receives state and federal payments for her care and treatment. Any decision to permit the discontinuance of nutrition or a delegation of that authority would be state action subject to constitutional restraint and review. Cf. In re Longeway, 133 Ill. 2d 33, 549 N.E.2d 292, 139 Ill. Dec. 780 (Ill. 1989); In re Lawrance, 579 N.E.2d 32 (Ind. 1991); In re Colyer, 99 Wash. 2d 114, 660 P.2d 738 (Wash. 1983).


[141] Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), characterized the decision by a guardian to withdraw a feeding tube as a decision to terminate a person's life. There would be an obvious contradiction if Kentucky would attempt to avoid its statutory system to assist persons with disabilities as provided in 92 KAR 20:026 § 3(5)(a) and 907 KAR 1:022 § 3(2)(b) (1992). There is a very fine line in allowing death because of natural circumstances when assistance is abandoned and actively participating in the onset of death by withdrawal of support. Constitutional values relating to the patient's interest in life must be part of the decision-making process. See The Due Process Right to Life in Cruzan and its Impact on Right to Die Laws, 53 University of Pittsburgh Law Review 193, 208 through 212 (1992).


[142] There is no doubt that the patient would have a right to refuse treatment and as such a voluntary refusal would be a waiver of her right to live in a legal sense. The law requires waivers of constitutional interests and other important rights be subject to very careful review. Cf. Fuentes v. Schevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1971). Even though the right to live may not be absolute, it precedes the right to chose because the right to live is the ultimate right or the right to have rights. Cf. Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Brennan, J. Concurring Opinion).


[143] It is asserted by one of the Amicus that approximately 900 medicaid residents of long-term care facilities in Kentucky receive nourishment and fluids through a feeding tube. Healthcare Financing Administration, U.S. Department of Health & Human Services, User defined Summary Report for User Selected Criteria: Total Number of Facilities and Residents with Assistance in Feeding, June 27, 1991. The treatment provided in this case may be considered on the same level with the treatment received by many other similarly situated people in this State.


[144] The real problem with the analysis presented by the majority opinion lies in its potential application to future persons in a similar situation. The majority opinion apparently adopts the view that there are no significant distinctions between terminating food and water and withholding or withdrawing life-sustaining medical treatment. It is troubling that support or such an opinion is found only in a footnote that deals with medical treatment. I am not sure if this statement is to be considered as holding in this case or whether it is applicable to future similar situations.


[145] Certainly there is room for consideration of the principle of double effect. Philosophically you may foresee the result but not intend it. The hard questions are those that require a choice between what is extraordinary means and what is ordinary means. Without question, it generally depends on the circumstances of each case. A competent adult could always refuse to accept medical treatment, but whether nourishment or food and water received through a tube may be placed in the same category as treatment is a significantly different question.


[146] The Federal and State Constitutions provide limits on the decision by a guardian to change the current level of treatment for this patient to the degree which would result in her death. There should be a presumption that her present treatment served the patient's best interests in living because it sustained her life in a nonburdensome manner. Such a presumption should stand unless there is some compelling reason to override it. There should not be an arbitrary presumption that the patient would waive her right to live by rejecting her present treatment without producing sufficiently clear evidence of her prior refusal. There should not be any reduction in her interest in living based only on an assessment of her quality of life, but rather it should be evaluated on the benefits her treatment provides. How these considerations apply depend on various factors as raised in Doe v. Cowherd, supra.


[147] In Cowherd, the U.S. Sixth Circuit determined that Kentucky law requires that the same level of due process given to defendants in criminal proceedings must be given in any other state proceeding involving the intentional deprivation of an individual's constitutionally protected interests. See Denton v. Commonwealth, Ky., 383 S.W.2d 681 (1964).


[148] Cowherd held that Kentucky violated the constitutional guarantee of equal protection by using different procedural standards for persons with mental illness and those with mental retardation even though both classes were threatened with the same loss of constitutional interests. Kentucky applies the "beyond reasonable doubt" standard in civil proceedings affecting mental illness and it must apply the same criteria to mental retardation cases. Such a constitutional analysis applies in this case and in cases which may follow it.


[149] The "beyond reasonable doubt" standard was used by the California Supreme Court in a commitment proceeding in which that court said the liberty against confinement is second only to life itself. In re Hop, 29 Cal. 3d 82, 623 P.2d 282, 171 Cal. Rptr. 721 (Cal. 1981). Certainly stale actions threatening the life of a person or a ward should be conducted with at least as many protections, if not more, as are provided against state action threatening the liberty of a ward.


[150] In Kentucky, the test whether the deliberations relating to the life or death decisions for this patient are "quasi-criminal" in nature. Denton, supra. Surely this patient and any others should be afforded the same constitutional protection given to an accused in a criminal prosecution. Therefore, the "beyond reasonable doubt" standard of evidence should be applied in this type of case. See Messer v. Roney, Ky.App., 772 S.W.2d 648 (1989).


[151] In applying Kentucky law, the U.S. Sixth Circuit Court has indicated that the authority of a guardian to vindicate one interest of a patient must be carefully scrutinized if it potentially interferes with another interest of the patient. Cf. Doe ex rel v. Austin, 668 F. Supp. 597 (W.D.Ky. 1986).


[152] The legitimate interest of a patient to live did not suddenly disappear when her guardian, relatives, physician or hospital caregiver declared their intent to end treatment allegedly in pursuit of her wishes.


[153] If the evidentiary standard is reasonable doubt for proving prior intent, it would necessarily prevent a surrogate waiver based on substituted judgment. See Cruzan v. Director at p. 2855.


[154] In this case, it is troubling to read some of the expert testimony presented at trial. It is disturbing that one physician referred to this patient's life as "no longer meaningful" and that her continued care would weaken society's commitment to preserving "meaningful" lives. Other testimony was to the effect that she was "dead" and "no longer a person" because she no longer reflected a divine image; and other testimony that even if she is alive, there is no "medical benefit" to continuing her care. Such sworn statements demonstrate this type of patient's vulnerability and raise serious concern that a decision not to treat could be based on unconstitutional biases against persons with disabilities.


[155] If a patient is to die from refusal of food or fluids, then this should be an informed choice and not as a result of a decision rendered without appropriate due process and equal protection considerations. There is much that we do not know or understand about life in general or life under such distressing circumstances as presented here.


[156] The contemporary media-driven culture refers to this as a "right to die" case. It is an easy phrase and simple to remember but difficult to apply. There is a false premise inherent in it which assumes that human beings have a choice regarding death. As noted by one of the Amicus in this case, the real issue is whether persons may chose between allowing disease to proceed naturally to death or delaying ultimate death by medical intervention.


[157] It is interesting to note that in the Federal Cruzan, supra, case the court found that her statements to others regarding her desire to live or die under certain conditions were unreliable for the purpose of determining her intent and insufficient to support a claim for substituted judgment. In Cruzan, Justice Scalia delivers an excellent Concurring opinion specifying the problems associated with this type of decision.


[158] The guidelines suggested by the majority opinion by their very title relate to life-sustaining medical treatment. This is not such a case. It is a case about the withdrawal of a hydration system through which the patient receives nourishment and water. Food and water are basic human needs and the process of feeding is not medical treatment under any circumstances. Cf. Justice Nolan's Dissent in Brophy v. New England Sinai Hospital, 398 Mass. 417, 497 N.E.2d 626 (Mass. 1986); Bannon, Rx: Death by Dehydration, 12 Human Life Review., 70 No. 3 (1986).


[159] The only state interest present in such a case is its interest in preserving life. There can be no transfer of that goal to a state interest in assuring that the patient's wishes are accurately determined. Primarily, the decision-making process should remain private and I believe that the judicial system should remain open to hear matters relating to the termination of life-sustaining treatment only when a dispute arises among the appropriate parties.


[160] These cases must be limited to a specific and individual basis. The removal of tube feeding cannot be applied automatically to an entire class of patients such as the permanently unconscious. There are legitimate concerns by everyone in our society about the trend toward euthanasia or mercy killing and assisted suicide. The careful "beyond a reasonable doubt" standard might conceivably serve as a "stopper" on the "slippery slope" toward euthanasia and mercy killing. Our society cannot accept a culture of death, but rather a culture of life.


[161] An extreme illustration of the "slippery slope" problem is presented in Alexander, Medical Science under Dictatorship, The New England Journal of Medicine, Vol. 241, No. 2 at 39 (July 14, 1949) and is noted in Footnote 11 in the majority opinion in Mack v. Mack, 329 Md. 188, 618 A.2d 744 (Md. 1993).


[162] I believe that any judicial intervention is appropriate only in those individual and specific cases in which the family, the physician and the hospital cannot agree. In this case the trial Judge used a "clear and convincing" standard. He should not be faulted for that because this was certainly a matter of first impression. I would not direct a "beyond a reasonable doubt" rule retroactively but only prospectively.


[163] The development of standards in this type of situation is best left to the wisdom of the General Assembly. Reliance or Guidelines for State Court Decision-making in Life Sustaining Medical Treatment requires an expansion on the concept of medical treatment. In a representative democratic society, it is part of the legislative function to decide matters of public policy. Certainly, there could be no greater question of public policy than the matter of life-sustaining treatment or hydration. A variety of medical, ethical and philosophic considerations must be addressed when deciding such serious matters which affect each and every individual. The judicial system is better suited for the application and interpretation of the laws once they are established by a democratically elected legislative body.


[164] Therefore, I must respectfully Dissent from the decision enunciated in the majority opinion because I believe that the judicial system lacks the authority to grant the relief requested and that the proper standard of proof should be "beyond a reasonable doubt."


[165] Reynolds, J., joins in this Dissent.



--------------------------------------------------------------------------------

Opinion Footnotes

--------------------------------------------------------------------------------

[166] *fn1 The Coordinating Council on Life-Sustaining Medical Treatment Decision Making by the Courts, a project of the National Center for State Courts funded by the State Justice Institute, has written "Guidelines for State Court Decision Making in Life-Sustaining Medical Treatment Cases (Second Edition, 1992)." NCSC Publication No. R-135. These guidelines provide useful advice for trial courts to consider in future cases of this nature.


[167] *fn2 Ironically, while Sue persists despite her condition, her mother (the petitioner) has died and Sue's brother, Joseph G. Elston, has now qualified as her legal guardian and has been substituted as appellee by Order of this Court.


[168] *fn3 See In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922 (1976), a case highly publicized in the news media.


[169] *fn4 The cases are: Rasmussen by Mitchell v. Fleming, 154 Ariz. 207, 741 P.2d 674 (Ariz. 1987); Conservatorship of Drabick, 200 Cal. App. 3d 185, 245 Cal.Rptr. 840 (Cal.App. 6 Dist. 1988); McConnell v. Beverly Enterprises-Conn., Inc., 209 Conn. 692, 553 A.2d 596 (Conn. 1989); In re Severns, 425 A.2d 156 (Del. Ch. 1980); Corbett v. D'Alessandro, 487 So. 2d 368 (Fla.App. 1986); In re L.H.R., 253 Ga. 439, 321 S.E.2d 716 (Ga. 1984); In re Estate of Longeway, 133 Ill. 2d 33, 549 N.E.2d 292 (Ill. 1989); In re Lawrance, 579 N.E.2d 32 (Ind. 1991); In re Gardner, 534 A.2d 947 (Me. 1987); Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 497 N.E.2d 626 (Mass. 1986); Matter of Conservatorship of Torres, 357 N.W.2d 332 (Minn. 1984); Cruzan v. Harmon, 760 S.W.2d 408 (Mo. banc 1988); In re Jobes, 108 N.J. 394, 529 A.2d 434 (N.J. 1987); In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (N.Y. 1981); Leach v. Akron Gen. Med. Ctr., 68 Ohio 1, 426 N.E.2d 809 (Ohio 1980); Gray v. Romeo, 697 F. Supp. 580 (R.I. 1988); In re Grant, 109 Wash. 2d 545, 747 P.2d 445 (Wash. 1987).
We note that the Rhode Island case was decided in federal court, Gray v. Romeo, supra, and that the Indiana case, Matter of Lawrance, supra, was based in part on Indiana statutes.



[170] *fn5 See also, Guidelines for State Court Decision Making in Life-Sustaining Medical Treatment Cases, National Center for State Courts, 2nd ed., 143-45 (1992). "It is important to note that a consensus has already developed on major medical-ethical issues relevant to LSMT (n. 248). They include the following:
(1) There are no significant distinctions between withholding or withdrawing (stopping and not starting) LSMT. (2) The use of terms such as 'terminal illness,' 'terminal condition,' and 'imminently dying' often create more confusion than clarity in LSMT decisions. Regardless of the patient's condition, the overriding concerns for the health-care provider in the forgoing of LSMT are: (a) respecting patient autonomy self-determination), and (b) improving patient well-being (the weighing of benefits and burdens of one plan of care in comparison with alternatives). (3) Health care professionals have a duty to promote the welfare of their patients. However, this does not necessarily include the duty to preserve life at all costs. Where LSMT fails to promote a patient's welfare, there is no longer an ethical obligation to provide it, and treatments no longer beneficial to the patient may be stopped. (4) LSMT can take many forms, from something as simple as a penicillin pill to something as complex as a respirator, depending upon the patient's circumstances. It is these circumstances that are important in making decisions and the potential to benefit the patient, and no labels such as 'extraordinary,' 'ordinary, and 'heroic,' which are of little value in actually making the LSMT decision. Indeed, they tend to confuse the decision making. (5) Artificial nutrition and hydration are forms of medical treatment; in general, their use or discontinuation should be governed by the same principles and practices that govern other forms of medical treatment. Although issues involving artificial nutrition and hydration are often presented more emotionally, from a moral and legal standpoint, they raise the same questions as do other forms of medical treatment. (6) There are significant moral and legal distinctions between letting die (including the use of medications to relieve suffering during the dying process) and killing (assisted suicide/euthanasia). In letting die, the cause of death is seen as the underlying disease process or trauma. In assisted suicide/euthanasia, the cause of death is seen as the inherently lethal action itself. (n. 248) The major articulated LSMT medical-ethical standards include: American Academy of Neurology, Position of the American Academy of Neurology on Certain Aspects of the Care and Management of the Persistent Vegetative State Patient (1988); American Geriatrics Society, AGS Position Statement: Medical Treatment Decisions Concerning Elderly Persons (1987); Council on Ethical and Judicial Affairs of the American Medical Association, Withholding or Withdrawing Life-Prolonging Medical Treatment (1986, 1989); The Hastings Center Guidelines, supra note 9; President's Commission Report, supra note 9; U.S. Congress, Office of Technology Assessment, Life-Sustaining Technologies and the Elderly (1987)."




--------------------------------------------------------------------------------

Concurrence Footnotes

--------------------------------------------------------------------------------

[171] *fn1 At several places in the majority opinion, the phrase "substitute judgment" is utilized. In Guidelines for State Court Decision Making in Life-Sustaining Medical Treatment Cases, National Center for State Courts, 2nd ed., 187 (1992), this term is defined as follows:
"Substituted Judgment (standard): A legal standard for surrogate decisionmaking. By this standard, the surrogate makes the decision on the basis of what is known about the patient's personal values and preferences. Compare best interest [standard]."