McKUSICK, Chief Justice.
This case poses the sensitive question, novel to us, of when life-sustaining procedures may be discontinued for a hospital patient in a persistent vegetative state with no hope for improvement. The Superior Court (Androscoggin County) declared that in the specific circumstances presented by
Requiring proof by clear and convincing evidence, the Superior Court after extensive hearings found the following facts among others: On May 11, 1985, Joseph V. Gardner, then nearly 23 years of age, suffered "severe, permanent and totally disabling" injuries to his head when he fell from the back of a moving pickup truck. Despite heroic surgical and rehabilitative efforts and the best of medical care and treatment, Gardner since the accident "has never regained consciousness" and has been "in a chronic and persistent vegetative state without hope of regaining any cognitive or voluntary bodily functions by any known or anticipated medical procedures." "He is totally incapable of feeding himself or ingesting food or drink by normal means. He is unable to chew or swallow." A patient at Central Maine Medical Center (CMMC) in Lewiston, Gardner is kept alive by the artificial introduction of nutrition and hydration through a so-called Dobbhoff nasogastric (NG) tube inserted by medical personnel through his nose and esophagus into his stomach and intestines. His "body is almost totally spastic" and so rigid that the nurses must pry his legs apart to wash him. He has no control over his bowel, bladder and other bodily functions. "He cannot ... voluntarily move any parts of his body." "There is no evidence of any thought process, emotion or pain." Prior to the 1985 accident Gardner had declared his "intent and desire that he not be maintained on the nasogastric tube"; that he would rather die than be maintained in a persistent vegetative state by artificial means. In the event that Gardner's stated wish is respected, his "death will be without conscious pain or discomfort" and will come within three to fourteen days.
The Superior Court held that "[t]he State's right to preserve life and prevent suicide does not overcome Gardner's inherent right ... to make a decision to terminate or withdraw life-sustaining treatment" and declared that Gardner's mother acting as his guardian has the authority to have carried out his stated wish for the removal of the NG tube as well as any other life-sustaining procedures. In addition, the Superior Court declared that no health care facility or personnel are subject to any criminal or civil liability or profesional discipline for permitting such removal, and that any such facility or personnel may affirmatively decline to participate in such removal subject to a duty to take reasonable steps to effect or assist with a transfer of Gardner to another facility if requested. All of Gardner's family and close friends who testified at trial had urged the Superior Court that Gardner's pre-accident decision not to be kept alive artificially in a persistent vegetative state should be respected. So also had the Maine Department of Human Services
The Superior Court based its holding in part upon Gardner's own personal decision declared prior to his accident, and in part upon a theory of "substituted judgment"; namely, the exercise of judgment on behalf of a now incompetent Gardner as to what he, if he were currently competent and conscious, would want done. On the basis of clear and convincing evidence, the court made findings that fully support both grounds for its holding. In affirming the judgment of the Superior Court, however,
Any resolution of that narrow question must begin with a recognition of the longstanding importance in our Anglo-American legal tradition of personal autonomy and the right of self-determination. John Stuart Mill, in his classic defense of individual autonomy, set forth what he perceived as the proper scope of personal liberty:
J.S. Mill, On Liberty, reprinted in Three Essays 5, 15 (1975) (first published in 1859). A recent article on patient autonomy modified, as concerns medical treatment, Mill's description of the scope of self-determination, stating: "In general, the more intense and personal the consequences of a choice and the less direct or significant the impact of that choice upon others, the more compelling the claim to autonomy in the making of a given decision." Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 Yale L.J. 219, 220 (1985).
American courts and commentators have long emphasized the importance of personal autonomy, especially in the realm of medical care. Before the turn of the century, Justice Gray writing for the United States Supreme Court declared:
Union Pacific Ry. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). Writing for the New York Court of Appeals two decades later, Judge Cardozo, in Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914), concurred:
See, e.g., Canterbury v. Spence, 464 F.2d 772, 780 (D.C.Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972); Natanson v. Kline, 186 Kan. 393, 406-07, 350 P.2d 1093, 1104 (1960). In its recently published report on the termination of life-sustaining treatment, the Hastings Center, which devotes itself to the research of ethical problems in medicine, biology, and the life sciences, states:
Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying 7 (1987) [hereinafter Hastings Center, Terminating Life-Sustaining Treatment]. A presidential commission
Reflecting the central importance of personal autonomy in our legal tradition, many courts have now recognized the right of an individual to refuse the continuation of life-sustaining care. See, e.g., Bartling v. Superior Court, 163 Cal.App.3d 186, 209 Cal.Rptr. 220 (1984) (allowing a nonterminally ill competent patient to refuse all life-sustaining procedures); Satz v. Perlmutter, 362 So.2d 160, 162 (Fla.Dist.Ct.App.1978), aff'd, 379 So.2d 359 (Fla.1980) (allowing a terminally ill competent patient to order withdrawal of a respirator); Brophy v. New England Sinai Hosp., 398 Mass. 417, 439-42, 497 N.E.2d 626, 638-40 (1986) (allowing discontinuation of the nutrition and hydration of a nonterminally ill incompetent patient); In re Farrell, 108 N.J. 335, 358, 529 A.2d 404, 416 (1987) (allowing terminally ill competent person to compel discontinuation of life-sustaining care). In recognizing the patient's right to control his medical care, the Massachusetts Supreme Judicial Court has emphasized the individual's "strong interest in being free from nonconsensual invasion of his bodily integrity." Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 739, 370 N.E.2d 417, 424 (1977) [hereinafter Saikewicz].
The personal right to refuse lifesustaining treatment is now firmly anchored in the common law doctrine of informed consent, which requires the patient's informed consent to the administration of any medical care. See Saikewicz, 373 Mass. at 738-39, 370 N.E.2d at 424; In re Jobes, 108 N.J. 394, 430-32 & n. 3, 529 A.2d 434, 453-54 & n. 3 (1987) (Handler, J., concurring); In re Conroy, 98 N.J. 321, 348, 486 A.2d 1209, 1222-23 (1985) (right to decline medical treatment is "embraced within the common-law right to self-determination"). Under this common law doctrine, "[t]he patient's ability to control his bodily integrity through informed consent is significant only when one recognizes that this right also encompasses a right to informed refusal." Conroy, 98 N.J. at 347, 486 A.2d at 1222.
We have noted in the past that Maine's law of informed consent supports the right of an individual to decline medical care. In Downer v. Veilleux, 322 A.2d 82, 90-91 (Me.1974), we joined the majority of states that have "recognized the doctrine of informed consent as an actionable species of medical negligence." Woolley v. Henderson, 418 A.2d 1123, 1128 & n. 3 (Me.1980). When the principles of informed consent are viewed in the context of a medical malpractice action, a court focuses less on the patient's interest in self-determination than on the doctor's compliance with reasonable medical practices. Id. at 1129-30. Nevertheless, we have continued to recognize the validity of a battery analysis, with its focus on the patient's right to be free from nonconsensual invasions of his bodily integrity, when the treatment applied by the doctor "is either against the patient's will or substantially at variance with the consent given." Downer v. Veilleux, 322 A.2d at 89. See also Woolley v. Henderson, 418 A.2d at 1133 & n. 11. Thus when a competent patient has expressly refused to receive some form of medical care, a doctor would be acting tortiously if he insisted on providing the treatment against his patient's will. As we explained in Downer:
Downer v. Veilleux, 322 A.2d at 91. An individual's right to control his medical care is not lessened when the treatment at issue involves life-sustaining medical procedures. See, e.g., John F. Kennedy Memorial
Courts have wrestled with the difficulty of protecting the right of self-determination in cases where the patient who has previously made no controlling medical decision has come into a persistent vegetative state and is therefore no longer able to make or communicate any personal decision. In that situation many courts have followed the lead of the Massachusetts court, Saikewicz, 373 Mass. at 750-53, 370 N.E.2d at 430-31, in using a "substituted judgment" test to determine whether a now incompetent person would have chosen, if he were competent, to order discontinuation of the life-sustaining system. See In re Conroy, 98 N.J. at 360-61, 486 A.2d at 1229. As we at the outset noted, however, we affirm the result reached by the Superior Court in this case without any reliance upon the court's finding of substituted judgment. The court's finding of a pre-accident decision by Gardner himself fully supports the relief granted without more.
This case parallels closely the circumstances addressed by the New York Court of Appeals in In re Storar, 52 N.Y.2d 363, 376-80, 420 N.E.2d 64, 70-72, 438 N.Y.S.2d 266, 272-74, cert. denied, 454 U.S. 858, 102 S.Ct. 309, 70 L.Ed.2d 153 (1981). One of the cases consolidated in the Storar decision involved the withdrawal of the respirator keeping alive Brother Fox, a member of a Catholic religious order, who was in a persistent vegetative state without any chance of recovery. Id. at 370-71, 420 N.E.2d at 67-68, 438 N.Y.S. 2d at 269-70. Before he lost competency Brother Fox had said to others that if he came to be in a vegetative state he would not want to be maintained by life-sustaining procedures. Id. at 371-72, 420 N.E.2d at 68, 438 N.Y.S.2d at 270. The district attorney objected to discontinuing the life-sustaining treatment, claiming that no
The Superior Court properly applied a "clear and convincing"
The record amply supports the Superior Court's determination that it was Gardner's "declaration of intent and desire that he not be maintained" in his present persistent vegetative state by life-sustaining procedures. He had specifically talked with several of his family and friends about not wanting to be kept alive artificially, if he should meet a medical disaster. For example, Gardner told his girl friend, Deborah Mason, at a time in 1983 when she was working at a nursing home, that people kept alive only by life-sustaining procedures lose their dignity as a result of such treatment and that "he would want to die" rather than be maintained in that condition. Gardner said to Ms. Mason, "I would not want to live ... that way." In addition, only a month before Gardner's accident he discussed with Alan Holbrook, one of his closest friends, the possibility of being kept alive in a vegetative state by life-sustaining procedures. Gardner had said to Holbrook in a very serious manner that he "would definitely want to die if he was ever in a vegetable state." Both his mother and his brother recalled that Gardner had specifically observed friends and neighbors in desperate medical straits and had declared that he did not want to be kept alive artificially if he ever came into that condition. It is apparent from the testimony that what was on Gardner's mind was not only the invasiveness of life-sustaining systems, such as the NG tube, upon the integrity of his body. It was also the utter helplessness of the permanently comatose person, the wasting of a once strong body, and the submission of the most private bodily functions to the attention of others. In the face of those understandable concerns, "[t]he law recognizes the individual's right to preserve his humanity, even if to preserve his humanity means to allow the natural processes of a disease or affliction to bring about a death with dignity." Brophy v. New England Sinai Hosp., 398 Mass. at 434, 497 N.E.2d at 635.
A different result is not warranted simply because the life-sustaining procedure at issue involves the artificial provision of nutrition and hydration. There is no meaningful ground for distinguishing the artificial provision of nutrition and hydration through an NG tube from other forms of life-sustaining procedures such as a respirator, which provides another essential of life, oxygen, or a dialysis machine, which attends to another essential of life, waste disposal.
Some commentators have suggested a special symbolic importance in providing nutrition and hydration, as opposed to other forms of treatment, to those unable to care for themselves. See, e.g., "On Feeding the Dying," Hastings Center Report, Oct. 1983, at 22. Yet any such symbolism lies in the reciprocity of giving and receiving, such as occurs between parent and
Other courts have noted that in some circumstances certain state interests may outweigh the patient's right to compel discontinuation of life-sustaining care. See, e.g., Satz v. Perlmutter, 362 So.2d at 162; Brophy v. New England Sinai Hosp., 398 Mass. at 432, 497 N.E.2d at 634; In re Peter, 108 N.J. at 426, 529 A.2d at 427. On the specific facts of this case, however, we can identify no state interests sufficiently strong to outweigh Gardner's specific personal decision made prior to his injury that life-sustaining procedures not be used to maintain him in the condition caused by his tragic accident. Generally, the most important state interest that will arise when a patient is incompetent at the time life-sustaining procedures are to be removed is the interest in protecting from abuse those persons no longer able to care for themselves. See Adult Protective Services Act, 22 M.R. S.A. § 3473 (Supp.1986) (Act's purpose is to protect incapacitated adults in circumstances "which present a substantial risk of abuse").
Similarly, we do not believe that a decision to allow discontinuation of life-sustaining procedures in the narrow circumstances of the present case in any way rests upon a quality-of-life determination— by the courts or by anyone else other than Gardner. The Superior Court found that Gardner decided for himself that he does not want life-sustaining procedures in a situation like his present one. Thus Gardner has himself done the balancing of his own values and their bearing on the question of whether to be kept alive in a persistent vegetative state by artificial means. That personal weighing of values is the essence of self-determination. In ruling to respect the personal choice made by Gardner, therefore, we judges do not ourselves engage in an independent assessment of the value of his life. See Hastings Center, Terminating Life-Sustaining Treatment 134 (1987). We are only recognizing and effectuating his right of self-determination.
Gardner's decision to live without artificial life-sustaining procedures would not constitute suicide since the grievous injuries resulting in his present condition were not self-inflicted. He in no sense has decided to kill himself. Gardner did not suffer his injuries by intentionally placing himself in such a position that his continued biological existence would depend upon the provision of life-sustaining procedures. Accident has brought him to that state. Following his mishap Gardner is simply exercising his right to control the course of his medical care. Because of the unfortunate condition into which his 1985 accident put him, his refusal of all artificial feeding will be followed by death. Yet this coupling of his treatment decision and his ultimate
The Superior Court correctly ruled that no health care facility or health care personnel will be subject to criminal or civil liability or professional discipline for participating in the discontinuation of Gardner's life-sustaining procedures in these circumstances. The court's ruling that Gardner is entitled to have his own personal decision to refuse life-sustaining procedures carried out in his present condition precludes a finding that anyone who assists the discontinuation of those procedures in a responsible and humane manner could be guilty of either a criminal offense or a breach of due care or professional responsibility. See In re Storar, 52 N.Y.2d at 377, 420 N.E.2d at 71, 438 N.Y.S.2d at 273.
When Gardner suffered his tragic accident two and a half years ago, he by reason of the resulting incapacity lost none of his personal and civil rights, least of all his right to have his own decisions carried out on what should or should not be done to care for his body. The common law of Maine recognizes Gardner's right of self-determination in matters of health care to be essential to the integrity and dignity of his person. Once the Superior Court determined by clear and convincing evidence that Gardner had made a pre-accident decision as to what treatment he should receive in the event he got into the unfortunate state to which his accident has now brought him, the court had no other course than to respect that personal decision and to authorize its effectuation. In carrying out Gardner's decision, his guardian should of course ensure that he continues to receive the palliative care necessary to deal with his physical condition in a humane manner.
The entry is:
NICHOLS, GLASSMAN and SCOLNIK, JJ., concurring.
CLIFFORD, Justice, with whom ROBERTS and WATHEN, JJ., join, dissenting.
I respectfully dissent.
I agree that the evidence supports the finding of the Superior Court as to Joseph Gardner's persistent, vegetative and incognitive condition.
I do not agree that the Superior Court's finding that Gardner would want the nasogastric feeding and hydration tube removed is based on sufficiently clear and convincing evidence so as to constitute an informed refusal. Moreover, this Court has failed to properly assess and balance the right to refuse life-sustaining procedures and the state's legitimate interest in preserving life and preventing suicide.
This Court grounds its decision on the right to refuse medical treatment and determines that right to be firmly anchored in the common law doctrine of informed consent. 534 A.2d at 951. Before a consent to undergo medical treatment can be said to be "informed," a patient must be provided with sufficient information to enable the patient to understand the procedures and inherent risks and hazards involved in the treatment. Downer v. Veilleux, 322 A.2d 82, 90-91 (Me.1974); 24 M.R.S.A. § 2905 (Supp.1987). In view of the strong public policy in favor of preserving life, see In re Conroy, 98 N.J. 321, 486 A.2d 1209, 1233 (1985), the decision to refuse medical treatment, especially where certain death will result, should be at least as informed as the decision to consent to treatment.
There is no evidence that Joseph Gardner ever expressed his wishes in writing or orally as to specific circumstances under which he wished life-sustaining measures to be discontinued, and the Superior Court acknowledged that the conversations of Gardner upon which it relied were "casual and of a general nature rather than about specific cases." The court relied in large measure upon Gardner's active life-style in finding that he would want the feeding tube removed. That type of evidence, if offered to support a decision of informed consent, would be woefully inadequate. It is all the more inadequate to support a refusal that will result in certain death. In the present case there is no basis for concluding that Joseph Gardner's refusal is informed.
Even if the evidence did support the trial court's determination of Joseph Gardner's intent, I would not affirm the judgment. I do not dispute this Court's holding that a person has a substantial right to refuse medical treatment, including life-sustaining medical procedures. That right, however, is not absolute and must be measured against the interests of the state in requiring that certain medical procedures be undertaken or in insuring that certain treatment is not withdrawn. Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 425 (1977).
Those state interests are a) the preservation of life, b) the protection of the interests of third parties,
The state has an interest in preserving the life of Joseph Gardner as an individual and in preserving life in general. Conroy, 486 A.2d at 1223. This interest in preserving life derives from our instinct for self-preservation and is essential to our survival as a civilization. That we protect the lives of the weakest and most vulnerable of our society shows us to be a humane and caring society. See 42 U.S.C.A. §§ 5101-5103 (1983 & Supp.1987); 22 M.R.S.A. §§ 3470-3478 (Supp.1987). Likewise, the state's interest in preventing suicide has long been recognized and is reflected in our criminal code. 17-A M.R.S.A. §§ 106(6),
The right to refuse life-sustaining procedures should be respected if the refusal is based on the nature of the procedures, i.e., that they are invasive or painful or produce risks or are of minimum benefit to the patient. Saikewicz, 370 N.E.2d at 431-32. To the extent that the Superior Court addressed the use of the nasogastric tube involved in this case, the procedure was shown to be minimally invasive, causing no pain nor risk of any disease or infection, yet sustaining Joseph Gardner with nutrients and water.
We are not faced with a request to withdraw treatment because it is unnecessarily invasive or detrimental to the patient. Rather, the guardian has requested simply that Joseph Gardner "be permitted to die." The Superior Court repeatedly referred to evidence of Joseph Gardner's statements of not wanting to live in a vegetative state, and concluded that he would "want to die." The Superior Court implicitly found that the quality of Joseph Gardner's life is poor and granted to others the right to end his life. By affirming the Superior Court, this Court ignores the legitimate interest our society has in preventing such decisions from being based on the quality of life.
This Court suggests that death will come from the inability of Joseph Gardner to swallow, a result of the tragic accident, and that "[f]orcing upon him the life-sustaining procedures he has decided to refuse would only prolong the ultimate moment of his death." 534 A.2d at 956. But Joseph Gardner is not terminally ill and if the feeding tube is withdrawn, he will starve to death. Drawing a chain of proximate causation from the accident to his death does not lessen the impact of this stark result. The outcome in such a case should not turn on whether the patient has the capacity to swallow, to lift his head, or to sip from a cup.
The Maine Legislature has treated nutrition and hydration differently than other medical or life-sustaining procedures. Nutrition and hydration may not be withdrawn under 22 M.R.S.A. §§ 2921-2931 (Supp.1987), the Maine Living Wills Act, even though the patient has formally executed a will requesting withdrawal. 22 M.R.S.A. § 2921(4). Indeed, no life-sustaining treatment may be withheld or withdrawn under the Act except from a terminally ill patient. 22 M.R.S.A. § 2922(3)(B). This legislative enactment reflects the value placed on life and the significance of food and water to our survival.
We need not decide if nutrition and hydration must always be treated differently than other medical or life-sustaining procedures. Here, however, where food and water are being provided in a non-invasive, pain-free manner to a non-terminally ill patient, the withdrawal of such a feeding tube for the purpose of causing his death ignores the legitimate and longstanding interest of the state in preserving life and preventing suicide, exposes many members of our society to potential abuse, and should not be sanctioned.
Our status as a civilized society is significantly discredited when we abdicate our responsibility to care for those who are unable to care for themselves. The provision of sustenance to the most vulnerable among us serves as a binding value in our society and is an obligation we cannot ignore. This Court's decision, premised on the unarticulated notion that Joseph Gardner's life is not worth maintaining, creates a troubling precedent. Those in our society least able to care for themselves, the disabled, the retarded, the elderly, will not fare well under a quality of life assessment, implicitly used here.
The authorities relied upon by this Court are contrary to values expressed by our legislature and essential to our survival as a caring society. They do not persuade me that the Superior Court judgment should be affirmed. See Comment, Maine's Living
I would vacate the judgment.
Id. (citation omitted).
Major, "The Medical Procedures for Providing Food and Water: Indications and Effects," in By No Extraordinary Means: The Choice to Forgo Life-Sustaining Food and Water 21, 27 (J. Lynn ed. 1986).