Earle N. Spring, an incompetent person, was receiving life-prolonging hemodialysis treatment. On the petition of his wife and his son, who was his temporary guardian, a judge of the Probate Court found that the ward "would, if competent, choose not to receive the life prolonging treatment," and ordered the entry of judgment that "the ward's attending physician together with the ward's wife and son are to make the decision with reference to the continuance or termination of the dialysis treatment." The Appeals Court affirmed the judgment. Matter of Spring, 8 Mass.App.Ct. 831 (1979).
We allowed an application by the guardian ad litem for further appellate review. We concluded that the finding quoted above was warranted by the evidence, but on the authority of Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728 (1977), we concluded that it was error to delegate the decision to the attending physician and the ward's wife and son. We issued an order reversing the judgment of the Probate Court and remanding the case for the entry of a new judgment ordering the temporary guardian to refrain from authorizing any further life-prolonging treatment except by further order of the Probate Court. We
1. The proceedings. In November, 1978, the son filed a petition that he be appointed conservator of the property of his father, and the appointment was made on January 16, 1979. On January 25, 1979, the son was appointed temporary guardian of his father, and the same day the son and the wife of the ward filed a petition for an order that no life-prolonging medical treatment be administered to the ward by his physicians. The probate judge appointed a guardian ad litem, who filed a report on February 12, 1979.
After an evidentiary hearing on April 5, the judge on May 15, 1979, ordered that the temporary guardian refrain from authorizing any further life-prolonging medical treatment. On motion of the guardian ad litem the order was stayed, and the guardian ad litem appealed to the Appeals Court. After further consideration, on July 2, 1979, the judge filed "Findings, Rulings and Order for Entry of Judgment," vacated the order of May 15, and ordered the entry of judgment that "the ward's attending physician together with the ward's wife and son are to make the decision with reference to the continuance or termination of the dialysis treatment."
The July 2 judgment was stayed, but no further appeal was taken, and no application was made for direct appellate review by this court. The case was argued in the Appeals Court in September, and an opinion affirming the July 2 judgment was released on December 21, 1979. The guardian ad litem filed an application for further appellate review on December 31, 1979. The case was argued before this court on January 10, 1980, and our order was issued January 14, 1980.
Without the dialysis treatment the ward would die; with it he might survive for months. Survival for five years would be not probable, but conceivable. The treatment did not cause a remission of the disease or restore him even temporarily to a normal, cognitive, integrated, functioning existence, but simply kept him alive. He experienced unpleasant side effects such as dizziness, leg cramps, and headaches; on occasion he kicked nurses, resisted transportation for dialysis, and pulled the dialysis needles out of his arm. His disruptive behavior was controlled through heavy sedation. He would not have suffered any discomfort if the dialysis had been terminated. There was no evidence that
3. The legal setting. This is another in a series of recent cases in which we have been called upon to apply legal principles to questions of life and death presented by modern medical procedures. Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728 (1977) (order withholding chemotherapy from incompetent and profoundly retarded leukemia patient at State school). Custody of a Minor, 375 Mass. 733 (1978) (order permitting chemotherapy for a minor leukemia patient over parental objection). Custody of a Minor (No. 3), 378 Mass. 732 (1979) (same). Commissioner of Correction v. Myers, 379 Mass. 255 (1979) (order for involuntary hemodialysis for prisoner). See Commonwealth v. Golston, 373 Mass. 249, 252-256 (1977), cert. denied, 434 U.S. 1039 (1978) (upholding finding of "brain death" before removal of respirator from murder victim); Commonwealth v. Edelin, 371 Mass. 497, 516-517 (1976) (insufficient evidence of recklessness of physician with respect to aborted fetus); Matter of Dinnerstein, 6 Mass.App.Ct. 466 (1978) (declaration that validity of order not to resuscitate patient with Alzheimer's disease did not depend on prior court approval); Lane v. Candura, 6 Mass.App.Ct. 377 (1978) (denial of authority to amputate leg of nonconsenting competent adult).
Similar questions have arisen in other jurisdictions as well. Rogers v. Okin, 478 F.Supp. 1342, 1360-1371 (D. Mass. 1979) (injunction against involuntary treatment of mental patients with psychotropic drugs). In re Boyd, 403 A.2d 744 (D.C. App. 1979) (remand to consider bearing of incompetent patient's religious beliefs on her putative rejection of psychotropic drugs). Satz v. Perlmutter, 362 So.2d 160 (Fla. Dist. Ct. App. 1978) (authorizing removal of respirator as desired by competent, terminally ill patient). In re Quinlan, 70 N.J. 10, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976) (authorizing removal of
These materials suggest that there is something approaching consensus in support of some of the principles elaborated in the Saikewicz opinion. A person has a strong interest in being free from nonconsensual invasion of his bodily integrity, and a constitutional right of privacy that may be asserted to prevent unwanted infringements of bodily integrity. Thus a competent person has a general right to refuse medical treatment in appropriate circumstances, to be determined by balancing the individual interest against countervailing State interests, particularly the State interest in the preservation of life. In striking that balance account is to be taken of the prognosis and of the magnitude of the proposed invasion. The same right is also extended to an incompetent person, to be exercised through a "substituted judgment" on his behalf. The decision should be that which would be made by the incompetent person, if he were competent, taking into account his actual interests and preferences and also his present and future incompetency.
The procedure to be followed in such cases, however, has been more controversial. It is reported that our Saikewicz decision was interpreted by some as requiring judicial approval before life-prolonging treatment could be withheld from an incompetent patient, even in cases of "brain death." See Annas, supra at 387. We therefore take this occasion to point out that neither the Saikewicz case nor the present case presented any issue as to the legal consequences of action taken without court approval. In the Golston case we held that "brain death," "in the opinion of a licensed physician, based on ordinary and accepted standards of medical
In the Saikewicz case the patient was a profoundly retarded resident of a State school, and was incompetent to give informed consent to medical treatment. The superintendent of the school and a staff attorney filed a petition with the Probate Court for the appointment of a guardian with authority to make the necessary decisions. We held that the proceeding was properly initiated, and that the judge appropriately decided that the proposed chemotherapy should be withheld. We also indicated that, if the judge in such a case was not persuaded that the incompetent individual's choice, as determined by the "substituted judgment" standard, would have been to forgo potentially life-prolonging treatment, or if the interests of the State required it, the treatment was to be ordered. We approved the consideration of findings of medical ethics committees or panels, as well as the testimony of attending physicians and other medical experts, but we disapproved the delegation of the ultimate decision-making responsibility to any committee, panel or group, ad hoc or permanent. As applied to the situation there in issue, we reaffirm our decision and our reasoning.
In the present case, as in the Saikewicz case, there was no dispute as to the patient's lack of competence.
4. The need for a court order. Neither the present case nor the Saikewicz case involved the legality of action taken without judicial authority, and our opinions should not be taken to establish any requirement of prior judicial approval that would not otherwise exist. The cases and other materials we have cited suggest a variety of circumstances to be
Action taken without judicial approval might be the subject of either criminal or civil liability. Little need be said about criminal liability: there is precious little precedent, and what there is suggests that the doctor will be protected if he acts on a good faith judgment that is not grievously unreasonable by medical standards. See Commonwealth v. Edelin, 371 Mass. 497, 514-517 (1976), id. at 544 (dissenting opinion of Hennessey, C.J.). It is reported that apparently no prosecutor has proceeded to trial in a case where a physician chose to terminate life-preserving treatment or omit emergency treatment in a hopeless case. See Collester, Death, Dying and the Law: A Prosecutorial View of the Quinlan Case, 30 Rutgers L. Rev. 304, 310-311 (1977).
The law governing civil liability has been more fully developed. See G.L.c. 111, § 70E; Sharp & Crofts, Death
Withholding of treatment does not fit neatly into the category of battery. A physician who has undertaken to render
What, then, is the significance of our disapproval of a shift of ultimate responsibility away from the courts? We in no way disapprove the practice of committee review of decisions by members of a hospital staff. But private medical decisions must be made responsibly, subject to judicial scrutiny if good faith or due care is brought into question in subsequent litigation, although the concurrence of qualified consultants may be highly persuasive on issues of good faith and good medical practice. This is true of medical decisions generally, and is no less true of a decision to withhold medical treatment from an incompetent patient. When a court is properly presented with the legal question, whether treatment may be withheld, it must decide that question and not delegate it to some private person or group. Subsidiary questions as to how to carry out the decision, particularly purely medical questions, must almost inevitably be left to private decision, but with no immunity for action taken in bad faith or action that is grievously unreasonable.
The medical testimony was consistent with the critical finding. The testimony concerning the magnitude of the invasion occasioned by hemodialysis was similar to that in Commissioner of Correction v. Myers, 379 Mass. 255, 263 (1979); it was unlike "the relatively simple and risk-free treatments of supportive oral or intravenous medications." In the Myers case the prognosis was far more positive. When the treatments began in the present case, there was hope that the ward's mental condition would improve. Instead, it became much worse. He could not understand the need for the treatments and the accompanying discomfort; he was uncooperative and had to be heavily sedated. Hence we agree with the Appeals Court that the critical finding was not clearly erroneous. The problem of impairment of "quality of life" associated with Saikewicz's mental retardation has no analogue in the present case.
The balance between the putative desire of the ward and the possible countervailing State interests was much like
6. Revision of findings. Thus the judge's findings were not clearly erroneous and the judge's May 15 order was in accordance with law. In an ordinary civil action that would be the end of the matter, and there would be no occasion to suggest to the judge that his findings could be revised. But this was not an ordinary civil action; it presented an issue of life and death in an ongoing situation. Nine months had elapsed between the evidentiary hearing and the entry of our order, and the ward's lack of competence had been conceded rather than litigated. The possibility seemed remote that the ward might regain competence, experience lucid intervals, or even be able to express a "sensible opinion" as to his desire. See Doe v. Doe, 377 Mass. 272, 278-279 (1979). But even a possibility of some change of circumstances might warrant reconsideration. Accordingly, we "emphasized" the possibility of a further order.
Nevertheless, we recognize that there are serious costs attendant upon lack of finality. The principal objection to a practice of seeking prior court approval for a decision to withhold treatment is that "it would be impossibly cumbersome." In re Quinlan, 70 N.J. 10, 50 (1976). In the present case the ward died more than a year after the petition was filed, and the issue was still unresolved. The ward himself was doubtless unaware of the numerous appraisals and reappraisals of his situation, but a fearful strain was imposed upon others concerned.
Without criticizing anyone for the course of these proceedings, we stress the desirability of expediting such cases. In particular, the guardian ad litem diligently carried out his
We think it proper to point out that a probate judge can act with dispatch on an application for appointment of a temporary guardian. G.L.c. 201, § 14. Rule 29B of the Probate Courts (1975). Unless there is an emergency, it is often desirable to appoint a guardian ad litem and to allow him a reasonable time to investigate and report. See Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 757 (1977). The probate judge may expedite the subsequent hearing,