The opinion of the Court was delivered by MICHELS, P.J.A.D.
John J. DeLaney, Jr. (DeLaney), guardian ad litem of Claire C. Conroy (Conroy), appeals from a judgment of the Chancery Division entered following a plenary trial, which declared that Thomas C. Whittemore (Whittemore) as guardian of Claire C. Conroy had "the right to cause the removal of the nasogastric
The facts relevant to this appeal are not in substantial dispute. From her teens until her retirement at age 62 or 63, Conroy was employed by a cosmetics company. She never married, but was devoted to her three sisters and her several cats. The last of her sisters died in 1975, leaving her nephew Whittemore as her only living relative. According to Whittemore, Conroy began to show signs of confusion some time before 1979. In 1979 he petitioned for and was granted guardianship of Conroy, whom he then placed in the Parklane Nursing Home (Parklane). According to Dr. Ahmed Kazemi, Conroy's physician at Parklane, Conroy was ambulatory upon her admission but was somewhat confused as the result of organic brain syndrome.
On July 23, 1982, after observing that Conroy was not eating, Dr. Kazemi placed her on a nasogastric tube, which is a simple
Dr. Kazemi further testified at trial that Conroy was not brain dead,
Neither physician could determine whether Conroy could feel pain. They speculated that although her gangrene and ulcers did not seem to be a source of pain, the leg contractions probably were. According to the physicians' testimony, if the nasogastric tube were to have been removed, Conroy would have died of dehydration and starvation in about a week. Dr. Kazemi described this as a painful death. Moreover, the trial judge recognized that "the removal of the tube will lead to suffering and death," and ordered the guardian and health care personnel "to take reasonable steps to minimize [Conroy's] discomfort ... during her passage from life." 188 N.J. Super. at 532.
The physicians agreed there was no chance of an improvement in Conroy's mental condition. Dr. Davidoff observed, however, that none of Conroy's medical conditions was fatal and therefore that it could not be predicted when or from what cause Conroy would die.
THE ISSUE OF MOOTNESS
We first address the guardian ad litem's contention (withdrawn at oral argument) that this appeal should be dismissed because it has become moot. It is true, of course, that Conroy's death has rendered the issues that underlie this appeal moot. There no longer is a threat that the State will compel the continued treatment of Conroy against the exercise of her right to privacy or that the nasogastric tube will be removed contrary either to her best interests or to the State's interest in the preservation of life. Therefore, the conflict between the parties has become merely hypothetical. Nevertheless, we conclude that the importance of the issues presented by this appeal requires their resolution notwithstanding their mootness.
Nevertheless, our courts will decide a moot case that presents issues of great public importance or is based upon a controversy capable of repetition, yet evading review because of the short duration of any single plaintiff's interest. See e.g., Guttenberg Sav. & Loan Ass'n v. Rivera, 85 N.J. 617, 622-623 (1981); Dunellen Educ. Bd. v. Dunellen Educ. Ass'n, 64 N.J. 17, 22 (1973); John F. Kennedy Mem. Hosp. v. Heston, 58 N.J. 576, 579 (1971); State v. Union Cty. Park Comm'n, 48 N.J. 246, 248-249 (1966); East Brunswick Tp. Educ. Bd. v. E. Brunswick Tp. Council, 48 N.J. 94, 109 (1966); State v. Perricone, 37 N.J. 463, 469, cert. den. 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962); Playcrafters Student Members v. Teaneck Tp. Educ. Bd., 177 N.J.Super. 66, 73-74 (App.Div.), aff'd o.b. 88 N.J. 74 (1981); Humane Society of the U.S. v. Guido, 173 N.J.Super. 223, 228 (App.Div. 1980). See generally Busik v. Levine, 63 N.J. 351, 363-364, appeal dismissed 414 U.S. 1106, 94 S.Ct. 831, 38 L.Ed.2d 733 (1973).
The issues presented by this appeal are of such great public importance that their resolution is clearly warranted. This appeal offers an opportunity to provide guidance to family members, guardians, physicians and hospitals, the need for which extends far beyond the facts of this case. Moreover, this
CONROY'S RIGHT TO PRIVACY
We turn, then, to the merits of this appeal.
The right to privacy is recognized under the United States Constitution as a "penumbra" derived from several more specific constitutional guarantees. See Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965). This right is also protected by N.J. Const. (1947), Art. I, par. 1. In re Grady, 85 N.J. 235, 249 (1981); State v. Saunders, 75 N.J. 200, 210-217 (1977). The right to privacy is not absolute, however; it must yield to important state interests in areas protected by that right. Roe v. Wade, supra, 410 U.S. at 155, 93 S.Ct. at 727-28. In In re Quinlan, supra, the Supreme Court of New Jersey applied the right to privacy balance to a comatose patient's petition to discontinue extraordinary life-sustaining treatment.
When the Quinlan case was decided, its subject — Karen Ann Quinlan — was a 22-year-old woman in an irreversible coma, a symptom of severe brain damage caused by prolonged anoxia. Karen was in a "chronic vegetative state," in which she retained neurological control over her blood pressure, heart rate, chewing, swallowing, sleeping and waking, but lost all more sophisticated brain stem and higher neurological functions. Thus, although she reacted to light, sound and noxious stimuli on a primitive reflex level, she was not consciously aware of her surroundings: she had no cognitive function. No existing medical technique could have been expected to restore her to cognitive or sapient life.
One of the brain stem functions Karen Quinlan was believed to have lost was the ability to breathe unassisted. Therefore she was connected to a respirator, described by the Quinlan
Karen's father, Joseph Quinlan, sought an adjudication that his daughter was incompetent and a declaration that he be her guardian with the power to authorize discontinuance of "all extraordinary medical procedures now allegedly sustaining Karen's vital processes and hence her life."
A similar legal analysis has been employed by other jurisdictions in this type of case. See In re Severns, 425 A.2d 156, 158-159 (Del. Ch. 1980); Satz v. Perlmutter, 362 So.2d 160, 162-163 (Fla.App. 1978), aff'd o.b. 379 So.2d 359 (Fla.Sup.Ct. 1980); Matter of Spring, supra, 380 Mass at 639-42, 405 N.E.2d at 122-123; Superintendent of Belchertown v. Saikewicz, supra, 373 Mass. at 740-45, 370 N.E.2d at 425-427; Leach v. Akron Gen. Med. Ctr., 68 Ohio Misc. 1, 426 N.E.2d 809, 814-815 (Ct. Common Pleas 1980); Matter of Welfare of Colyer, 99 Wn.2d 114, 660 P.2d 738, 741-744 (1983). The New York Court of Appeals, though it based its decision on nonconstitutional grounds, has adopted a similar balance of interests standard in resolving this type of case. Matter of Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 275-276, 420 N.E.2d 64, 73-74, cert. den. 454 U.S. 858, 102 S.Ct. 309, 70 L.Ed.2d 153 (1981).
Application of the Quinlan right to privacy standard requries an examination of the relative interests of the State and the patient in the continuation or withdrawal of treatment.
The Patient's Prognosis as Determining the State's Interest
The State's interest in preserving a patient's life is small with regard to the hopelessly ill or irreversibly comatose patient, but great with regard to the patient whose condition will substantially improve as the result of continued treatment. This distinction is borne our by the case law. In John F. Kennedy Mem. Hosp. v. Heston, supra, 58 N.J. at 581-585, our Supreme Court ordered blood transfusions for a young woman who required surgery to save her life, despite her mother's objections on religious grounds. The court emphasized the State's interest in preserving the life of a patient who, if treated, may enjoy long life and good health:
See also Raleigh Fitkin-Paul Morgan Mem. Hosp. v. Anderson, 42 N.J. 421, 423, cert. den. 377 U.S. 985, 84 S.Ct. 1894, 12 L.Ed.2d 1032 (1964); State v. Perricone, supra, 37 N.J. at 475-477.
This distinction has been recognized by the Supreme Judicial Court of Massachusetts. In Superintendent of Belchertown v. Saikewicz, supra, that court granted an application to discontinue chemotherapy in the case of a 67-year-old man suffering from terminal and incurable leukemia. However, the opposite result was reached in Commissioner of Correction v. Myers, 379 Mass. 255, 399 N.E.2d 452 (1979). The patient in that case was a 24-year-old prisoner who suffered from a chronic kidney condition. Dialysis would have allowed him to lead a relatively normal and healthy life; without the dialysis, he would have died within ten to fifteen days. The court found that the balance of interests tipped toward the State. It observed:
By contrast, courts have been far more ready to allow an irreversibly comatose or incurably terminally ill person to refuse treatment. See, e.g., In re Severns, supra (comatose chronic vegetative patient); Satz v. Perlmutter, supra (patient suffering from incurable terminal amyotrophic lateral sclerosis); Matter of Spring, supra (comatose chronic vegetative patient); Leach v. Akron Gen. Med. Ctr., supra (semi-comatose, vegetative patient suffering from terminal amyotrophic lateral sclerosis); Matter of Welfare of Colyer, supra (comatose chronic vegetative patient). See also In re Quackenbush, 156 N.J.Super. 282, 288-290 (Cty.Ct. 1978).
We conclude that Conroy's prognosis supports a significantly greater state interest in continued treatment than in the cases cited above. At the time of trial, Conroy was unable to move from a fetal position and had a severely limited ability to respond to her surroundings. However, she was not in a chronic vegetative state; she was simply very confused. Dr. Kazemi testified that because Conroy was aware of some external stimuli and responded to them, she was neither vegetative nor comatose. This testimony draws a very different picture from that drawn in the Quinlan case. It seems to describe a woman who, like an infant less than a year old, experienced and responded to her surroundings but lacked the intellectual capacity to understand most of them. By comparison, Karen Quinlan was unaware of her environment and had only the most reflexive reactions to outside stimuli:
The distinction between an "awake" but confused patient like Conroy and an "asleep," vegetative patient like Karen Quinlan is material and is determinative in this case. The Quinlan court held that the State's interest in preserving a patient's life depends on whether the patient ever will return to cognitive, sapient life. 70 N.J. at 41. Thus, it is plain that Quinlan applies only to noncognitive, vegetative patients.
We are also troubled by the trial judge's framing of the issue as whether the patient will return "to some meaningful level of intellectual functioning." Put simply, to allow a physician or family member to discontinue life-sustaining treatment to a person solely because that person's lack of intellectual capacity precludes him from enjoying a meaningful quality of life would establish a dangerous precedent that logically could be extended far beyond the facts of the case now before us. In our view, the right to terminate life-sustaining treatment based on a guardian's substituted judgment should be limited to incurable and terminally ill patients who are brain dead, irreversibly comatose or vegetative and who would gain no medical benefit from continued treatment. A fortiori, there can be no justification for withholding nourishment, which is really not "treatment" at all (see § IIB below), from a patient who does not
The Nature of Treatment as Defining the Patient's Interest
"[T]he individual's right to privacy grows as the degree of bodily invasion increases." In re Quinlan, supra, 70 N.J. at 41. In our view, "bodily invasion" means not only the degree of physical discomfort, incapacitation or debilitation a given treatment will cause a patient, but also the feelings of helplessness, dependence and loss of dignity the treatment will engender. Thus, the patient's interest in privacy is greater when his medical condition requires 24-hour care, dependence on machines to carry on bodily functions, or regular exposure and handling of his body. See ibid. The courts seem to have accepted this rule, in that they have been far more willing to allow patients to refuse complex, highly intrusive treatments like respirators (In re Severns, supra; In re Quinlan, supra; Leach v. Akron Gen. Med. Ctr., supra; Matter of Colyer, supra), hemodialysis (In re Spring, supra), chemotherapy (Superintendent of Belchertown v. Saikewicz, supra) or amputation (In re Quackenbush, supra) than to refuse a simple and routine treatment like a blood transfusion (see John F. Kennedy Mem. Hosp. v. Heston, supra; State v. Perricone, supra). As the court explained in In re Quackenbush,
In this light, the treatment given to Conroy differs significantly from that given Karen Quinlan. The bodily invasion necessary to treat Karen Quinlan was "very great." 70 N.J. at 41. It included 24-hour intensive nursing care, antibiotics and the assistance of a respirator, a catheter and a feeding tube. As a result, her personal dignity was taken from her and she was placed in a position of helplessness and dependence. In contrast, Conroy was in the less restrictive environment of a nursing home, was not subject to intensive nursing care, and had none of her bodily functions replaced by a machine. The nasogastric tube was no more than a simple device which was part of Conroy's routine nursing care. It was not really "medical treatment" at all. In truth, Conroy was little different from the many other ill, senile or mentally disabled persons who are bedridden and cared for in nursing homes. Consequently, the bodily invasion she suffered as the result of her treatment was small, and should not be held to outweigh the State's interest in preserving her life.
No reported case has considered whether an artificial means of feeding may be withdrawn from an irreversibly ill or comatose patient. However, similar considerations were before the New York Court of Appeals in In re Storar, supra, 438 N.Y.S.2d at 275-276, 420 N.E.2d at 73-74. The patient in that case was a 52-year-old profoundly retarded man who was diagnosed as
The same reasoning applies to the withdrawal of food and water from a patient. Nourishment does not itself cure disease. Neither is it an artificial life-sustaining device. Rather it is a basic necessity of life whose withdrawal causes death and whose provision permits life to continue until the patient dies of his illness or injury. Whether nourishment may ever be withdrawn from a patient whose medical condition is unlikely to improve is not the issue here. We hold only that when nutrition will continue the life of a patient who is not comatose, brain dead or vegetative, and whose death is not irreversibly imminent,
THE ETHICAL QUESTIONS
While we are satisfied that the proper balance between the preservation of life and the patient's right to privacy requires the result we have here reached, we are also persuaded that this result is dictated by ethical concerns as well.
The ethical question implicit in the decision whether to discontinue life-sustaining measures has traditionally been expressed by the distinction between "ordinary" and "extraordinary" treatment. The standard definition of these terms is given as follows:
An alternative formulation is proposed in Lewis, "Machine Medicine and its Relation to the Fatally Ill," 206 J.A.M.A. 387, 390 (1968), as follows:
Thus, the definition of "extraordinary treatment" is fluid, and depends on both the nature of the treatment and the patient's
There is substantial disagreement among ethicists whether the provision of food and water should ever be considered extraordinary treatment. It is in fact recognized that the terms "extraordinary treatment" and "ordinary treatment" elude certain definition. To some, the natural and ordinary quality of feeding dictates that it should never be withdrawn. See Healy, Medical Ethics 61-77 (1960); McFadden, Medical Ethics 227-247 (1961); O'Donnell, Morals in Medicine 57, 66-68 (1959). A code of treatment for severely ill children, drafted by the Nassau (N.Y.) Pediatric Society Committee on Ethics and Survival, provides that "ordinary measures are food, fluids, oxygen, antibiotics and pain killers." Waldman, "Medical Ethics and the Hopelessly Ill Child," 88 J.Ped. 890, 892 (1976). This position recently was summed up by Surgeon General C. Everett Koop as follows: "Withholding fluids or nourishment at any time is an immoral act." Time, April 11, 1983, at 69.
Nevertheless, several scholars are of the opinion that if the patient is beyond all hope of recovery, the burden of continued feeding is disproportionate to the benefit it will effect. See Wilson, Death by Decision 70-71 (1975); Ramsey, "Prolonged Dying: Not Medically Indicated," 6 Hastings Ctr. Rep. ___ 14 (1976). The American Medical Association Judicial Council, in Opinion 2.11 (Jan. 10, 1981), reprinted at 45 Conn.Med. 721 (1981), concludes that when a patient is irreversibly comatose or
The present appeal is not the proper vehicle by which to resolve this issue, and we expressly decline to do so. Even those ethicists who advocate the withdrawal of nourishment do so only when nourishment would offer no benefit to the patient, as when the patient is irreversibly comatose or permanently vegetative. In the words of Ramsey, supra, 6 Hastings Ctr. Rep. at 14:
If, as here, the patient is not comatose and does not face imminent and inevitable death, nourishment accomplishes the substantial benefit of sustaining life until the illness takes its natural course. Under such circumstances nourishment always will be an essential element of ordinary care which physicians are ethically obligated to provide.
There are involved here, moreover, ethical considerations which far transcend the ordinary-extraordinary dichotomy and its implications. In Quinlan the court reaffirmed the concept of the nondelegable judicial responsibility to determine issues involving the underlying and competing human values and rights here implicated. It also acknowledged that these determinations "must, in the ultimate, be responsive not only to the concepts of medicine but also to the common moral judgment of the community at large." 70 N.J. at 44. Thus, Quinlan made clear that when the medical issue is no longer "curing the ill but conforting and easing the dying" (id. at 47), the medical judgment is entitled to deference by the courts and society only in those cases in which, because of the condition of the patient and the nature of the life support system, the issue of sustaining life is not readily amenable to judicial resolution but is a matter for medical consensus based upon prevailing standards of practice and ethics. Id. at 47-48. Quinlan, involving an irreversibly comatose patient sustained by sophisticated and complex devices, presented just such a situation. This case does not. In our view, withdrawal of a nasogastric tube from a noncomatose patient not facing imminent death is not a method of "comforting and easing the dying" which either the courts or society can tolerate.
We are further convinced that the withdrawal of the feeding tube here would also violate medical ethics. It is clear that the physician's primary obligation is primum non nocere: First do
Thus, the American Medical Association Judicial Council has recommended that the following standard be adopted by courts and legislatures faced with issues of euthanasia or terminal illness:
The trial judge in the present case in effect authorized euthanasia rather than antidysthanasia. At the time of trial, Conroy, unlike the patients permitted to discontinue treatment in the other reported cases, was neither terminally ill nor critically injured and kept alive only by artificial means. She suffered from no specific life-threatening illness or injury, and she was not, apparently, suffering any pain. Her treatment consisted basically of providing the comforts of routine nursing care. If the trial judge's order had been enforced, Conroy would not have died as the result of an existing medical condition, but rather she would have died, and painfully so, as the result of a new and independent condition: dehydration and starvation. Thus, she would have been actively killed by independent means rather than allowed to die of existing illness or injury. Instead of easing her passage from life, the result of the judge's order would have been to inflict new suffering.
Such a result has frightening implications. When a patient, guardian or physician is permitted to decide that a nonterminal
In sum, the trial judge erred in holding that a non-comatose, non-brain-dead patient not facing imminent death, not maintained by any life-support machine, and not able to speak for herself should be painfully put to death by dehydration and starvation. Accordingly, the judgment so ordering is reversed.