HOWARD, Presiding Judge.
This appeal arises out of a determination by the lower court that the guardian of an incapacitated person has the authority to refuse medical care for his or her ward.
While this case was on appeal, Mildred Rasmussen died of complications following pneumonia. It is within our discretion to decide questions which have become moot. Miceli v. Industrial Commission of Arizona, 135 Ariz. 71, 659 P.2d 30 (1983). The issues presented here are of great importance to legal practitioners, families, guardians, doctors, hospitals and nursing home staff who face similar situations on a daily basis; therefore, we retain the matter for decision.
Mildred Rasmussen is now deceased, but we mention the facts of her condition to give perspective to the problems faced by those who are involved in making life and death decisions for an incapacitated person.
Mildred Rasmussen was a 70 year-old county care patient who had been residing at the Posada Del Sol Nursing Home in Tucson, Arizona, for about six years. Prior to admission at Posada Del Sol, Rasmussen had led an independent life and had practiced as a chiropractor in Tucson. She had two brothers and one sister, all of whom resided in Iowa, but no other immediate family. She had been diagnosed as suffering from three strokes, a degenerative neural muscular disease, and/or an organic brain syndrome. Her mental and physical condition deteriorated during her stay at Posada Del Sol Nursing Home to the extent that she was sustained through a nasal gastric tube which was in place for two and one-half years and was removed only prior to the filing of the petition for appointment of a guardian in this case.
Rasmussen became unable to care for herself and spent all of her time in bed in a curled-up position. Her basic care was provided by nurses who administered medication and turned her from side to side on a regular basis to avoid development of bed sores. She was fed by a syringe and was able to swallow liquids on her own.
The testimony regarding Rasmussen's ability to understand and communicate was inconsistent. Her treating physician and an independent neurologist testified that she was unable to comprehend and respond to external stimuli in a meaningful way and was unable to communicate. On the other
During the pendency of this appeal, Rasmussen's medical chart at Posada Del Sol had "do not resuscitate" (DNR), and "do not hospitalize" (DNH) orders placed on it. The DNR order was a directive that she not be resuscitated should she suffer from cardiac arrest or a similar condition. The DNH order was intended to prevent immediate and presumptive hospitalization for medical treatment. Medical personnel would only provide comfort care and the absence of extreme medical intervention would allow certain diseases such as gangrene, pneumonia, or urinary tract infections to take their normal course and eventually kill the patient. Those orders were placed on Rasmussen's medical chart by the treating physician after consideration of her medical diagnosis and prognosis.
Rasmussen was unable to communicate her thoughts concerning the propriety of continued medical treatment. There was no evidence that she ever communicated her desires to others with regard to maintaining her life through extraordinary medical care measures. Although the family members were not actively involved in Rasmussen's medical treatment, after consultation, they were willing to abide by the decision of the treating physician to place the DNR and DNH orders.
The Pima County Public Fiduciary had served as guardian for Rasmussen from May 8, 1979, until July 27, 1982, when the guardianship was terminated. On May 29, 1985, the Pima County Public Fiduciary again petitioned for appointment as guardian for the purpose of consenting to the removal of the nasal gastric tube which was sustaining Rasmussen's life.
A guardian ad litem was appointed and the immediate family members were notified. The guardian ad litem was informed that Rasmussen had been taught to ingest food on her own but that there still were DNR and DNH orders on her medical chart. The guardian ad litem objected to the appointment of the public fiduciary or any other guardian unless there was an affirmative order that the guardian remove the DNH and DNR orders from the medical chart. Both the guardian and the guardian ad litem stipulated to the fact that Rasmussen was incapacitated. After a two-day evidentiary hearing, the court, on October 29, 1985, appointed the Pima County Public Fiduciary's Office as guardian without restriction. The court made extensive findings of fact and specifically found that a Title 14 guardian has the authority to withhold medical care from his or her ward. As a result, this appeal ensued.
The legal issues which we will consider are: (1) Is the Medical Treatment Decision Act, A.R.S. §§ 36-3201 to 3210, applicable in this case? (2) Does the constitutional right of privacy extend to the withdrawal or withholding of life-sustaining medical treatment? (3) Do any of the competing state interests outweigh this right of privacy? (4) May the constitutional rights of the incompetent be asserted vicariously? (5) What is the proper procedure for either the court or guardian to withhold or withdraw medical treatment from a ward? (6) What are the appropriate factors for the court and/or guardian to consider in restricting medical care?
MEDICAL TREATMENT DECISION ACT
Appellant argues that the Medical Treatment Decision Act, A.R.S. §§ 36-3201 to 3210, controls and prohibits the relief sought: removal of Rasmussen's nasal gastric tube and approval of the DNR and DNH orders on Rasmussen's medical chart. The Act provides that a person may direct, in advance, that life sustaining procedures, which serve only to "prolong the dying
RIGHT OF PRIVACY
The right of a competent adult to refuse medical treatment has its origins in the constitutional right of privacy. In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) the court held that the application of Connecticut statutes which prohibited the use of contraceptive devices by married persons violated the due process clause because they invaded marital "privacy." The majority opinion by Justice Douglas found that the "penumbras" of the several guarantees of the Bill of Rights established this right of privacy. Justice Harlan concurred, finding that the due process clause protected fundamental liberties which were not specifically expressed in the Bill of Rights.
In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court overturned a Texas statute which proscribed procuring or attempting the abortion of a fetus except when necessary to save the life of the mother. The court held that the statute violated the due process clause of the Fourteenth Amendment in that it unnecessarily infringed on a woman's right to privacy. In conjunction with Roe v. Wade, supra, in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the court invalidated a number of statutory procedural restrictions placed on a woman's ability to secure an abortion, and held that the provisions unnecessarily restricted a woman's right to privacy and therefore violated due process. In a concurring opinion, Justice Douglas stated that "freedom to care for one's health and person" is part of the right of privacy. Doe v. Bolton, 410 U.S. at 213, 93 S.Ct. at 758.
Finally, perhaps the most significant attempt of the Supreme Court to define the constitutional right of privacy came in Whalen v. Roe, 429 U.S. 589, 598-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64, 73 (1977). The court stated:
Although the constitution does not explicitly mention a right of privacy, Supreme Court decisions have recognized that a right of personal privacy exists and that certain areas of privacy are guaranteed under the constitution. Matter of Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976). See Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Although the United States Supreme Court has not addressed the precise issue of whether the right of privacy includes the right to refuse medical treatment, several states have held that such a constitutional right exists. Bouvia v. Superior Court, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986); Bartling v. Superior Court, 163 Cal.App.3d 186, 209 Cal.Rptr. 220 (1984); Foody v. Manchester Memorial Hospital, 40 Conn.Sup. 127, 482 A.2d 713 (Super.Ct. 1984); Severns v. Wilmington Medical Center Incorporated, 421 A.2d 1334 (Del. 1980); Guardianship of Barry, 445 So.2d 365 (Fla.App.2d 1984); Satz v. Perlmutter, 362 So.2d 160 (Fla. App. 1978), approved by Satz v. Perlmutter, 379 So.2d 359 (Fla. 1980); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); Guardianship of Roe, 383 Mass. 415, 421 N.E.2d 40 (1981); Matter of Spring, 380 Mass. 629, 405 N.E.2d 115 (1980); Conservatorship of Torres, 357 N.W.2d 332 (Minn. 1984); Matter of Conroy, 98 N.J. 321, 486 A.2d 1209 (1985);
COMPETING STATE INTEREST
Next we must decide whether any of the competing state interests outweigh the constitutionally protected right to refuse treatment. See, Youngberg v. Romeo, 457 U.S. 307, 319-320, 102 S.Ct. 2452, 2460, 73 L.Ed.2d 28, 39-40 (1982); Bell v. Wolfish, 441 U.S. 520, 560, 99 S.Ct. 1861, 1885, 60 L.Ed.2d 447, 482 (1979); Roe v. Wade, supra, 410 U.S. at 153-154, 93 S.Ct. at 727, 35 L.Ed.2d at 177; Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905). The right to refuse treatment is not absolute. It must be weighed against the following state interests: (1) preservation of life; (2) protection of the interests of innocent third parties; (3) prevention of suicide; and (4) maintenance of the ethical integrity of the medical profession. Superintendent of Belchertown State School v. Saikewicz, supra, 370 N.E.2d at 425. The lower court in this case did not base its decision on the constitutional right of privacy. For illustrative purposes only, we will utilize the facts of this case and decide whether the competing state interests outweigh the constitutional right of privacy.
Clearly, the most significant state interest is the preservation of human life. We agree with the Quinlan court that "the State's interest contra weakens and the individual's right to privacy grows as the degree of bodily invasion increases and the prognosis dims." Matter of Quinlan, supra, 70 N.J. at 41, 355 A.2d at 664. Similarly, the Saikewicz court discussed the relationship between an individual's right of privacy and the state's interest in preservation of life as follows:
The medical evidence before the court established that there was "zero" hope of Rasmussen ever returning to a cognitive state. It also established that Rasmussen was in pain and thrashed about when the nasal gastric tube was inserted. Furthermore, there was no indication that Rasmussen's condition was curable or would improve with treatment; the treatment she received merely sustained the status quo. Based on these facts a court could conclude that Rasmussen's privacy right to refuse treatment outweighed the state's interest in preservation of life.
The other state interests do not mandate a different conclusion. Rasmussen had no children and her remaining family, two brothers and a sister from out of state, agreed to abide by the physician's decision. Thus, no third party interest needed to be protected. Welfare of Colyer, supra.
Prevention of suicide is also an inapplicable consideration in the case sub judice. "A death which occurs after the removal of life sustaining systems is from natural causes, neither set in motion nor intended by the patient." Welfare of Colyer, 660 P.2d at 743. See also, Superintendent of Belchertown State School v. Saikewicz, supra.
Finally, the medical profession's ethical integrity is enhanced by allowing, in appropriate cases, the removal or withholding of life-prolonging medical treatment. The American Medical Association's Council on Ethical and Judicial Affairs adopted the following statement on March 15, 1986,
Finding no state interest sufficient to counterbalance Rasmussen's right of privacy, the court could have concluded that the removal of the nasal gastric tube and placement of the DNH and DNR orders on her medical chart were appropriate.
We must decide who may exercise this constitutional right to refuse treatment. Clearly, a competent patient may exercise the right on his or her own behalf or may provide in advance of incompetency what should be done. In this case, we are faced with the question of whether someone other than the patient may assert the patient's right to refuse treatment if the patient has not done so and is unable to communicate his or her desires. In cases permitting the assertion of constitutional rights of one by another, the Supreme Court has noted three considerations: (1) presence of some substantial relationship between the claimant and the third party; (2) impossibility of the rightholder's assertion of the constitutional rights; and (3) need to avoid a dilution of the rightholder's constitutional rights that would result if the assertion of jus tertii were not permitted. Eisenstadt v. Baird, supra, 405 U.S. at 445, 92 S.Ct. at 1034, 31 L.Ed.2d at 358; Griswold v. Connecticut, supra 381 U.S. at 481, 85 S.Ct. at 1680, 14 L.Ed.2d at 513; N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 458-59, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488, 1497-98 (1958).
We find that either a family member or guardian may assert the constitutional rights of the patient to refuse medical treatment. The Court's three-prong test is easily met in these types of cases. Certainly a family member or guardian stands in some "substantial relationship" to the patient. Furthermore, an incompetent person is incapable of asserting his constitutional rights and those rights will be diluted if not asserted. Other courts have also found that an incompetent should not lose his right to refuse treatment by virtue of his incompetency. As the Saikewicz court noted:
See also, Severns v. Wilmington Medical Center Incorporated, supra; John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So.2d 921 (Fla. 1984); In re P.V.W., 424 So.2d 1015 (La. 1982); Matter of Spring, supra; Matter of Quinlan, supra; Leach v. Akron General Medical Center, supra; Guardianship of Ingram, supra; Guardianship of Hamlin, 102 Wn.2d 810, 689 P.2d 1372 (1984); Welfare of Colyer, supra.
The public fiduciary petitioned the court to become Rasmussen's guardian in order to consent to placement of the DNR and DNH orders and removal of the nasal gastric tube. Appellant contends that the trial court erred when it appointed the Pima County Public Fiduciary's Office as guardian of Rasmussen, without any specific instructions or restrictions. We disagree.
There was conflicting testimony as to whether or not Rasmussen possessed any cognitive abilities. Based on the record, we must conclude that the trial judge, after hearing the evidence presented by both parties, resolved the conflict in favor of the petitioning guardian's position since she ordered that the petitioning guardian be given authority to make the decision.
In the future, however, to minimize the amount of judicial intervention in these cases, and in the absence of any legislation on the subject in Arizona,
FACTORS IN MEDICAL TREATMENT DECISIONS
The trial court in this case adopted the "best interests" doctrine and directed that it be employed to guide the guardian's decision. We agree that this is the appropriate standard to apply in cases of incompetent patients who have never voiced their desires regarding life-sustaining extraordinary medical procedures. When a patient's likely decision with regard to medical treatment
We emphasize that it is not always in the best interest to require submission to treatment.
In a case such as this, where there is no evidence of what the patient's wishes might be with regard to withdrawal of medical treatment, we begin with the presumption that she would want to live. It is possible, however, to overcome this presumption when, upon consideration of all of the factors, it would be in the ward's "best interests" to withdraw or withhold medical treatment.
The guardian argues that "substituted judgment" is also the appropriate standard to use in cases involving persons who have never been competent. We disagree. In those cases, there is no evidence from which a guardian may substitute his judgment for what he believes the ward would have done under the circumstances and he can only use the best interests standard. The President's Commission For The Study Of Ethical Problems In Medicine And Biomedical And Behavioral Research stated, and we agree, that:
Affirmed as modified.
HATHAWAY, C.J. and FERNANDEZ, J., concur.