Reversed and remanded.
JUSTICE RYAN delivered the opinion of the court:
Bonnie Keiner, daughter and guardian of the estate and person of Dorothy M. Longeway, petitioned the circuit court of Du Page County to enter an order permitting her to withdraw the artificially administered nutrition and hydration currently sustaining her mother. Community Convalescent Center, the nursing facility where Longeway now resides, intervened and filed a motion to dismiss. The court granted this motion, and we agreed to hear a direct appeal of this dismissal pursuant to Supreme Court Rule 302(b) (107 Ill.2d R. 302(b)). We reverse and remand.
Beginning in 1976, Dorothy M. Longeway suffered a series of strokes and other illnesses which eventually rendered her unconscious. According to the guardian's petition, Longeway, now 76 years old, has lost all personality, memory, purposeful action, social interaction, thought and emotion, due to severe brain damage. Her prognosis is very poor; although she is not medically "brain dead," the neurological damage is so extensive that she will never regain consciousness. Longeway cannot communicate, but opens her eyes and responds to verbal commands and painful stimuli. She breathes without assistance, but cannot chew or swallow, and requires a surgically implanted gastrostomy tube to receive food and water.
The guardian's petition alleged that Longeway, while still conscious and competent, indicated on several occasions that she did not wish to be kept alive by a machine or device, and would rather die naturally than linger. She did not, however, execute a living will (see Ill. Rev. Stat. 1987, ch. 110 1/2, par. 701 et seq.) or a health care power of attorney (see Ill. Rev. Stat. 1987, ch. 110 1/2,
The circuit court summarily dismissed the "best interests" count, but set a hearing date on the "substituted judgment" count. The court may have felt that substituted judgment was an acceptable procedure for dealing with terminally ill incompetent patients because of the recent appellate court decision in In re Estate of Prange (1988), 166 Ill.App.3d 1091. This court subsequently vacated the appellate court decision in Prange and dismissed the appeal in this court after the patient's death. (In re Estate of Prange (1988), 121 Ill.2d 570.) When informed of our action in Prange, the circuit court then cancelled the scheduled hearing and dismissed the substituted-judgment count. The guardian appeals the dismissal of both counts.
The issue in this case is whether the guardian of an incompetent, seriously ill patient may exercise a right to refuse artificial nutrition and hydration on behalf of his ward and, if so, how this right may be exercised.
A number of State courts have addressed the question of whether life-sustaining measures may be withdrawn from incompetent patients: Arizona (Rasmussen v. Fleming (1987), 154 Ariz. 207, 741 P.2d 674), California (Barber v. Superior Court (1983), 147 Cal.App.3d 1006, 195 Cal.Rptr. 484), Connecticut (Foody v. Manchester Memorial Hospital (Super. 1984), 40 Conn.Sup. 127, 482 A.2d 713), Delaware (Severns v. Wilmington Medical Center, Inc. (Del. Ch. 1980), 425 A.2d 156), Florida (John F. Kennedy Memorial Hospital, Inc. v. Bludworth (Fla. 1984), 452 So.2d 921), Georgia (In re L.H.R. (1984), 253 Ga. 439, 321 S.E.2d 716), Louisiana
The courts which have grappled with the issue of "the right to die," or as it is often termed, "the right to
The problem becomes more acute when dealing with artificial nutrition and hydration. Food and water are emotionally symbolic in that food and water are basic necessities of life, and the feeding of those who are unable to feed themselves is the most fundamental of all human relationships. (See In re Grant (1987), 109 Wn.2d 545, 559-60, 747 P.2d 445, 453.) Also, the removal of food and
Persistently comatose patients, however, are said to lack the capacity to feel pain and suffering, thus ameliorating concerns of a horrifying death. (American Academy of Neurology, Position of the American Academy of Neurology on Certain Aspects of the Care and Management of the Persistently Vegetative State Patient (Adopted April 21, 1988).) If indeed they feel no pain, the concern about these patients then shifts to the prospect of remaining comatose and sustained by artificial feeding for long periods of time until death finally occurs. (See Brophy, 398
Artificial nutrition and hydration is considered a medical life-prolonging treatment by the American Medical Association. In a recent ethics opinion, the AMA states:
Artificial nutrition and hydration are also considered as death-delaying procedures in the Living Will Act (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 702(d)) and as health care in the Powers of Attorney for Health Care Law (Ill. Rev. Stat. 1987, ch. 110 1/2, pars. 804-10(a), (b)(1)).
State courts which have allowed nutrition and hydration to be withdrawn from incurably ill patients have agreed that nasogastric tubes, gastrostomies, or intravenous infusions are medical treatments and therefore analytically distinguishable from spoon-feeding or bottle-feeding. (See, e.g., In re Conroy (1985), 98 N.J. 321, 372-73, 486 A.2d 1209, 1236; Delio v. Westchester County Medical Center (1987), 129 A.D.2d 1, 18-19, 516 N.Y.S.2d 677, 688-89; Corbett v. D'Alessandro (Fla. App.
The seminal case which addressed the issue of withdrawing life-sustaining medical procedures was In re Quinlan (1976), 70 N.J. 10, 355 A.2d 647. In that case, 22-year-old Karen Ann Quinlan was in a comatose, persistently vegetative state. The New Jersey Supreme Court allowed Quinlan's father, acting as her guardian, to direct the removal of life-supporting apparatus. (Artificial nutrition and hydration, however, were not removed.) Although Quinlan's father asserted several different constitutionally based theories in support of the relief requested, the court found that the right to refuse treatment was premised on the constitutional right of privacy.
Other theories which the Quinlan court considered and rejected included the constitutional rights of free exercise of religion (U.S. Const., amend. 1) and freedom from cruel and unusual punishment (U.S. Const., amend. VIII). Subsequent decisions allowing the refusal of life-sustaining medical treatment have been premised upon Federal privacy rights (In re L.H.R. (1984), 253 Ga. 439, 321 S.E.2d 716), State constitutional guarantees of privacy (Corbett v. D'Alessandro (Fla. App. 1986), 487 So.2d 368),
Examining the Federal right of privacy, we note that this right is not explicitly mentioned in the United States Constitution. Nevertheless, the Supreme Court held in Griswold v. Connecticut (1965), 381 U.S. 479, 14 L.Ed.2d 510, 85 S.Ct. 1678, that a constitutional right of privacy exists in penumbras emanating from the various guarantees in the Bill of Rights. Constitutional privacy, however, encompasses only personal rights which are fundamental or implicit in the concept of ordered liberty (Roe v. Wade (1973), 410 U.S. 113, 152, 35 L.Ed.2d 147, 176, 93 S.Ct. 705, 726), or which are "`deeply rooted in this Nation's history and tradition.'" (Bowers v. Hardwick (1986), 478 U.S. 186, 192, 92 L.Ed.2d 140, 146, 106 S.Ct. 2841, 2844, quoting Moore v. City of East Cleveland (1977), 431 U.S. 494, 503, 52 L.Ed.2d 531, 540, 97 S.Ct. 1932, 1938.) The Supreme Court has never ruled on whether the right of privacy guarantees a right to refuse medical care. In fact, in Roe, the Court noted that the right of privacy is not absolute, and rejected the idea that "one has an unlimited right to do with one's body as one pleases." (Roe, 410 U.S. at 154, 35 L.Ed.2d at 177, 93 S.Ct. at 739.) Moreover, the Supreme Court recently declined to expand the number of rights deemed fundamental and therefore protected by the zone of privacy. Bowers, 478 U.S. at 194-95, 92 L.Ed.2d at 148, 106 S.Ct. at 2846 (holding that homosexual acts are not constitutionally protected).
Under common law, a patient normally must consent to medical treatment of any kind. Consent is required to maintain the right of personal inviolability: "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 others, unless by clear and unquestionable authority of law." (Union Pacific Ry. Co. v. Botsford (1891), 141 U.S. 250, 251, 35 L.Ed. 734, 737, 11 S.Ct. 1000, 1001.) Viewing this right in the context of medical treatment, Justice Cardozo stated, "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 (1914), 211 N.Y. 125, 129-30, 105 N.E. 92, 93.) This court has held that informed consent is a prerequisite to surgery. (Pratt v. Davis (1906), 224 Ill. 300.)
Furthermore, because a physician must obtain consent from a patient prior to initiating medical treatment, it is logical that the patient has a common law right to withhold consent and thus refuse treatment. This right incorporates all types of medical treatment, including life-saving or life-sustaining procedures. Many of our sister States have based the right to refuse life-sustaining treatment wholly or partly on this common law basis. (See, e.g., Conroy, 98 N.J. 321, 486 A.2d 1209; Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266; Drabick, 200 Cal.App.3d 185, 245 Cal.Rptr. 840; Rasmussen, 154 Ariz. 207, 741 P.2d 674; Gardner, 534 A.2d 947.) We find the reasoning of these opinions persuasive, and hold that in Illinois, the common law right to refuse medical treatment includes, under appropriate circumstances, artificial nutrition and hydration.
Because we are concerned here not with the right of a patient's personal refusal of medical treatment, but rather with the exercise of this common law right through a surrogate, we must examine relevant provisions of the Probate Act to see if a guardian may act as that surrogate. We find that the Probate Act impliedly authorizes a guardian to exercise the right to refuse artificial sustenance on her ward's behalf. Section 11a-17 of the Probate Act specifically permits a guardian to make provisions for her ward's "support, care, comfort, health, education and maintenance." (Ill. Rev. Stat.
It is argued that a guardian cannot have this power because of this court's decision in In re Marriage of Drews (1986), 115 Ill.2d 201. In Drews, we held that a guardian had no standing to file suit to dissolve her ward's marriage, finding nothing in the Probate Act that "grants [a] guardian standing to maintain or defend any legal proceeding." (Emphasis in original.) (Drews, 115 Ill.2d at 206.) Here, however, the guardian is not instituting a legal proceeding or suit on behalf of a ward, but is merely petitioning the court for authority to perform an act which is within the implied authority granted by the Probate Act. Consequently, we find Drews inapposite to the case at bar and hold that a guardian may exercise the right to refuse artificial sustenance on behalf of a ward in accordance with the guidelines discussed below.
Finally, the accuracy of the diagnosis must be safeguarded. Consequently, the patient's attending physician
The next step is to balance an eligible patient's right to discontinue sustenance against any interests the State may have in continuing it. The cases identify four countervailing State interests: "(1) the preservation of life; (2) the protection of the interests of innocent third parties; (3) the prevention of suicide; and (4) maintaining the ethical integrity of the medical profession." (Superintendent of Belchertown State School v. Saikewicz (1977), 373 Mass. 728, 741, 370 N.E.2d 417, 425.) Normally, none of these interests will override a patient's refusal of artificially administered food and water. Adequate safeguards exist to protect life and third parties, and to prevent suicide. Moreover, the ethical integrity of the medical profession can be ensured by not compelling (by court order or any other means) any medical facility or its staff to act contrary to their moral principles. The patient can be transferred to a different facility or a new physician can be appointed to carry out the patient's wishes, if the current staff or physician cannot. See Brophy, 398 Mass. at 439-41, 497 N.E.2d at 638-39.
The next step is to detail how the patient's wishes can be ascertained. Obviously, a patient who is irreversibly comatose or in a vegetative state will be incompetent, unable to communicate his intent. The courts have generally employed one of two theories in ascertaining an incompetent patient's wishes: "best interests" or "substituted judgment."
The best-interests approach has been utilized by several courts dealing with this issue. (See, e.g., Drabick, 200 Cal. App.3d. 185, 245 Cal.Rptr. 840; Rasmussen, 154 Ariz. 207, 741 P.2d 674; Torres, 357 N.W.2d 332.) Under the best-interests test, a surrogate decisionmaker chooses for the incompetent patient which medical procedures
Under substituted judgment, a surrogate decisionmaker attempts to establish, with as much accuracy as possible, what decision the patient would make if he were competent to do so. Employing this theory, the surrogate first tries to determine if the patient had expressed explicit intent regarding this type of medical treatment prior to becoming incompetent. (See In re O'Connor (1988), 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886.) Where no clear intent exists, the patient's personal value system must guide the surrogate:
Actual, expressed intent of a desire to have artificial sustenance withdrawn is what the New York Court of Appeals required in the recent decision, In re O'Connor (1988), 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886. There, the court held that "despite its pitfalls and inevitable uncertainties, the inquiry must always be narrowed to the patient's expressed intent, with every effort made to minimize the opportunity for error." (O'Connor, 72 N.Y.2d at 530, 531 N.E.2d at 613, 534 N.Y.S.2d at 892.) The concurring opinion, however, criticizes this specific-subjective-intent rule, stating that what it requires is factually impossible because there is no way to determine what the actual, present intent of an incompetent patient is. Moreover, the concurrence states that the result in O'Connor under the specific-subjective-intent rule and under a substituted-judgment test would be the same. Consequently, we find that although actual, specific express intent would be helpful and compelling, the same is not necessary for the exercise of substituted judgment by a surrogate. In this case, Mrs. Longeway's guardian must substitute her judgment for that of Longeway's, based upon other clear and convincing evidence
The final step in a patient's exercise of the right to refuse life-sustaining treatment is to determine the role of the court. The majority of the cases addressing the issue do not specifically require a court order to withdraw artificial life support. (Rasmussen, 154 Ariz. 207, 741 P.2d 674; Drabick, 200 Cal.App.3d 185, 245 Cal.Rptr. 840; Jobes, 108 N.J. 394, 529 A.2d 434; Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266; contra In re P.V.W. (La. 1982), 424 So.2d 1015.) Nevertheless, we feel that to halt artificial sustenance, the intervention of a judge is proper for several reasons.
First, Illinois has a strong public policy of preserving the sanctity of human life, even if in an imperfect state. (Siemieniec v. Lutheran General Hospital (1987), 117 Ill.2d 230, 249.) "`Health care professionals serve patients best by maintaining a presumption in favor of sustaining life, while recognizing that competent patients are entitled to choose to forego any treatments, including those that sustain life.'" (In re Farrell (1987), 108 N.J. 335, 351, 529 A.2d 404, 412, quoting President's Commission for the Study of Ethical Problems in Medicine and Bio-medical & Behavioral Research, Deciding to Forego Life Sustaining Treatment 3 (1983).) Because we agree that a presumption exists favoring life, we find that scrutiny by a judge is appropriate in these cases. Furthermore, since the key element in deciding to refuse or withdraw artificial sustenance is determining the patient's intent, we require proof of this element by clear and convincing evidence. Accord Rasmussen, 154 Ariz. 207, 741 P.2d 674; P.V.W., 424 So.2d 1015; Gardner, 534 A.2d 947; A.2d 947; Storar,
Second, court intervention is necessary to guard against the remote, yet real possibility that greed may taint the judgment of the surrogate decisionmaker. (See generally Drabick, 200 Cal. App.3d at 218, 245 Cal. Rptr. at 861.) We stress that the record in the case before us reveals no such problems and we do not imply that greed is present here. We can foresee other cases, however, where the surrogate decisionmaker stands to profit from the patient's demise and covets ill-gotten wealth to the point of fatal attraction. Generally, no penetrating investigation will be required. Nevertheless, the judge is free to inquire as to the beneficiaries and extent of the patient's estate, if it appears necessary to do so.
Third, the courts have a parens patriae power which enables them to protect the estate and person of incompetents. (Quinlan, 70 N.J. at 44, 355 A.2d at 666; 27 Am.Jur.2d Equity § 69 (1966).) Moreover, if the surrogate decisionmaker is a court-appointed guardian, procedural due process questions involving deprivation of life may arise. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2.) Although it is uncertain whether sufficient State action is present to invoke the protections of procedural due process, utilizing a court to oversee the guardian's decision as to the termination of artificial nutrition and hydration will forestall any potential constitutional infirmities.
We recognize that some will consider court intervention objectionable. The medical profession may rightfully resent judicial intrusion into its domain. The slow, deliberate nature of the court system may frustrate the family and loved ones of the patient. Although we feel that the courts can act expeditiously in clear-cut uncontested cases, we acknowledge these objections and the difficulty in reaching a balanced approach to this dilemma. For
Our legislature has peripherally addressed the question before us in both the Living Will Act (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 701 et seq.) and the Powers of Attorney for Health Care Law (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 801-1 et seq.). However, neither a living will nor a health care power of attorney is involved in this case. Therefore, neither law is helpful, except as it may reflect legislative intent or public policy. The Living Will Act specifically includes intravenous feeding and tube feeding as death-delaying procedures which, under the
In the Powers of Attorney for Health Care Law, it is specifically authorized that food and water and other life-sustaining measures may be withdrawn (Ill. Rev. Stat. 1987, ch. 110 1/2, pars. 804-10(a), (b)(1)) without any limitation on the exercise of that power, if death would result solely from dehydration or starvation rather than the existing terminal condition. Thus, it cannot be said that the limitation on the withdrawal of nutrition and hydration in the Living Will Act expresses the public policy of this State and prohibits all such withdrawal if it would result in death solely from dehydration or starvation, rather than from the existing terminal condition, because, as noted, the Powers of Attorney for Health Care Law contains no such limitation on the power of the agent to withdraw food and water. Furthermore, the Powers of Attorney for Health Care Law specifically provides that that law prevails over all inconsistent acts and "[i]f the principal has a living will * * * the living will shall not be operative so long as an agent is available who is authorized by a health care agency to deal with the subject of life-sustaining or death-delaying procedures for and on behalf of the principal." Ill. Rev. Stat. 1987, ch. 110 1/2, par. 804-11.
In 1988, House Bill 4094 was introduced in the General Assembly. This was a new act not referring to or amending the Living Will Act or the Powers of Attorney for Health Care Law. House Bill 4094 created a presumption that nutrition and hydration are to be given unless refused by the patient while competent, with certain
We therefore find no law or expression by the legislature of public policy which prohibits the exercise of the power of the guardian to withdraw nutrition and hydration in this case. We acknowledged above that the legislature is in a better position than are the courts to resolve the sensitive issues presented in this case. However, we have this case before us for decision and we must decide it in light of the law and the public policy which now exists. We cannot defer to the legislature for some possible future expression from that body as to public policy, which may or may not be forthcoming. As we have read the present law and the expression of the General Assembly as to public policy, as noted above, we see nothing which would prohibit the guardian from acting in the manner directed in this opinion.
Until legislative action directing otherwise, however, any exercise of the common law right to refuse or withdraw artificial nutrition and hydration by a surrogate must follow the guidelines of this opinion. Consequently, the decision of the trial court in this case is reversed, and the cause remanded for further proceedings consistent with this opinion.
Reversed and remanded.
JUSTICE CALVO took no part in the consideration or decision of this case.
JUSTICE WARD, dissenting:
In human terms the most awesome of this court's responsibilities is judging whether the imposition of the
Today's holding will of course reach beyond Mrs. Longeway. A public guardian in an appeal before this court which closely resembles this case has acknowledged that several thousand Illinois residents are disabled by conditions related to age, traumatic injury or congenital defect and require tube-feeding. These persons comprise one of the most vulnerable groups in our society. A recent Federal survey reports that 19.4% of all patients in Illinois' 237 intermediate care facilities and 33.8% of all residents in this State's skilled nursing homes receive tube-feeding or need assistance to obtain sustenance. (Health Standards & Quality Bureau, United States Health Care Financing Administration, Medicare/Medicaid Nursing Home Information 87/88, 1 Report on Illinois 1, 4 (Dec. 1, 1988).) The number of these patients in Mrs. Longeway's condition and who are under comparable circumstances is unknown.
In cases where abortion is the issue the inquiry is when the protection of being a human begins; here, in a real sense, the majority determines that a third person may judge when that protection has been lost by an incompetent person. That determination results from the
The determination of whether there is a common law right to withdraw or withhold life-sustaining treatment from an incompetent patient must be measured from a consideration of the nature of the right a competent patient possesses to accept or reject medical care. The right of a competent adult to refuse medical treatment is anchored in the common law doctrine which requires the patient's informed consent to the administration of medical care. The doctrine of informed consent developed as a means of protecting an individual's right to self-determination and personal independence in making decisions of great personal importance. Under the doctrine, a physician may be held civilly liable if a medical procedure is performed upon a competent adult patient without the patient's consent. (In re Storar (1981), 52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266.) The doctrine of informed consent presupposes that the patient has the information necessary to make an informed decision and is able to evaluate that information. Thus, to make an "informed" decision to accept or refuse treatment, the patient must have a full understanding of the nature of the illness and the prognosis, the information necessary to evaluate the risks and benefits of all the available treatment options, and the competency to make a reasoned and voluntary decision. (In re Conroy (1985), 98 N.J. 321, 347, 486 A.2d 1209, 1222, quoting Wanzer, Adelstein, Cranford, Federman, Hook, Moertel, Safar, Stone,
The majority simply assumes, without discussion, that the common law right to refuse medical treatment applies to all persons, whether or not they are competent to exercise that right. In doing so, the majority fails to consider fundamental distinctions between competent and incompetent patients. It must be said that the majority of courts that have held as the majority does here have ignored this troublesome problem and have said that the common law right to refuse life-sustaining treatment survives becoming incompetent. (See, e.g., Superintendent of Belchertown State School v. Saikewicz (1977), 373 Mass. 728, 741, 370 N.E.2d 417, 423; Jobes, 108 N.J. at 426-27, 529 A.2d at 451; Gardner, 534 A.2d at 952.) There are constitutional scholars, however, who have rejected the notion that the right to refuse treatment applies equally to competent and incompetent patients.
For example, Professor Laurence Tribe observed that conceptual and practical difficulties arise when one attributes "rights" to patients who are irreversibly comatose or in a chronic vegetative state. He observed that, while such patients are not dead in any legal sense, it is difficult to give content to the notion that they have rights in the face of the recognition that they cannot make decisions about how to exercise such rights. L. Tribe, American Constitutional Law 936-37 (1978).
Tribe, of course, was not suggesting that incompetent persons do not have any rights. He simply recognized what is the basic flaw in the view of the majority and
Undaunted by conceptual and practical difficulties which arise when one speaks of a "right to refuse medical care" in the case of incompetent persons, the majority simply assumes that incompetent patients must be considered the same as competent patients in regard to the right to refuse life-sustaining treatment. As incompetent patients are incapable of making a choice or giving consent, the majority would confer the power to choose and consent to third parties through the fiction of substituted consent.
The Quinlan court was the first to authorize third persons to terminate life-sustaining treatment from an incompetent ward under the notion of substituted consent. (In re Quinlan (1976), 70 N.J. 10, 355 A.2d 647.) There, 22-year-old Karen Ann Quinlan was living in a "non-cognitive, vegetative" state. (Quinlan, 70 N.J. at 41, 355 A.2d at 664.) Karen's father sought judicial permission to disconnect the respirator that assisted his daughter's breathing, making several different constitutional arguments in support of the asked-for relief. The court, stating that the right to refuse treatment was premised on Karen's constitutional right of privacy, held that Karen had the right to decide to terminate her vegetative existence. Quinlan, 70 N.J. at 41, 355 A.2d 664.
Regarding Karen's inability to decide whether to exercise this right, the court stated:
The court authorized her father to direct the removal of life-support systems. (Quinlan, 70 N.J. at 42, 355 A.2d at 664.) Although her physicians believed that Karen could not survive without the respirator, she lived for nine years after it had been disconnected. (Artificial nutrition and hydration were not removed. When asked if he wanted Karen's nasogastric feeding tube removed, her father replied, "Oh no, that is her nourishment." Ramsey, Prolonged Dying: Not Medically Indicated, 6 Hastings Cent. Rep. 14 (1976).)
The court's constitutional analysis, as well as its use of the substituted-judgment and substituted-consent doctrines, have been strongly criticized. Professor Tribe has suggested that, rather than effectuating Karen Quinlan's "rights," the court gave constitutional status to her family's desire to be rid of their torment and the interest of society in freeing medical decisionmakers from blind adherence to a practice of keeping vegetative persons alive out of fear of prosecution. L. Tribe, American Constitutional Law 936-37 (1978).
Professor Yale Kamisar's criticism of the Quinlan decision focused upon the court's invocation of the substituted-consent doctrine. He has suggested that Quinlan provided "euthanasia proponents with something that has eluded them for decades — the bridge between voluntary and involuntary euthanasia, between the `right to die' and the `right to kill.'" (Kamisar, A Life Not (or No Longer) Worth Living: Are We Deciding the Issue Without Facing It? (Nov. 10, 1977), Mitchell Lecture delivered at the State University of New York at Buffalo, quoted in Note, Due Process, Privacy & the Path of Progress, 1979 U. Ill. L.F. 469, 518 n. 239.) Kamisar also criticized the court's willingness to guess at what Karen
Courts permitting, despite criticism of Quinlan, a third party to exercise the right to refuse life-sustaining treatment on behalf of the incompetent ward have adopted one of three grounds to define when the third party may exercise a patient's right to refuse treatment: the best interests, the substituted judgment or the subjective intent of the patient. The majority opinion explains and here adopts the substituted-judgment ground.
The substituted-judgment approach is appealing because it purports to preserve the incompetent patient's personal right of self-determination and bodily integrity. The analysis, however, is based upon a legal fiction: that the incompetent patient actually chooses to refuse life-sustaining treatment, and the court and litigants simply effectuate or carry out the patient's intent. Responsibility for the decision to terminate treatment rests with the incompetent patient, while the court and guardian become blameless, choiceless assistants. Weber, Substituted Judgment Doctrine: A Critical Analysis, 1 Issues in L. & Med. 131, 137 (1985).
Too, risk of error is inherent under the "substituted-judgment" approach, because the surrogate, and ultimately the court that authorizes the termination of nutrition and hydration, must attempt to ascertain the patient's intent from sources external to the incompetent individual. A surrogate and the court must piece together any available testimony from relatives and other sources to construct a persona. They say that that image, if you will, then represents and decides for the incompetent person. The entire effort is more of an exercise in fictional characterization than it is an execution of the patient's intent and rights. (Weber, Substituted Judgment Doctrine: A Critical Analysis, 1 Issues in L. & Med. 131, 137 (1985).) I believe it to be incongruous to say, as the majority does, that the "guardian must substitute her judgment for that of Longeway's, based upon other clear and convincing evidence of Longeway's intent." (133 Ill.2d at 50-51.) If there were clear and convincing evidence of an incompetent's intent, a surrogate's substituted intent and judgment would not be necessary. It has been observed that the substituted-judgment approach "allows the truly involuntary to be declared voluntary, thus bypassing constitutional, ethical and moral questions, and avoiding the violation of taboos. Third party consent is a miraculous creation of the law — adroit, flexible, and useful in covering the unseemly reality of conflict with the patina of cooperation." Price & Burt, Sterilization, State Action, and the Concept of Consent, Law & Psychology Rev. 58 (Spring 1975).
The majority assumes that the substituted judgment to terminate nutrition and hydration will be made, as it will be here, by the patient's loving family. Many elderly persons, however, have few or no surviving relatives or friends and are socially isolated. Too, considerations
JUSTICE CLARK, also dissenting:
I must emphatically and categorically dissent from what I view as this court's sad foray into the legislative realm, a realm that most certainly does not belong to the members of the judiciary. Although the majority recognizes that the "legislature is the appropriate forum for the ultimate resolution of the questions surrounding the right to die" (133 Ill.2d at 53), they nevertheless refuse to exercise the proper restraint. Rather, they plunge heedlessly and needlessly into the abysmal abyss created by those who attempt to too quickly solve what they perceive to be life's tragedies.
The majority's venture into legislation making is both dangerous and, in this case, utterly unnecessary. Based on even the majority's description of Longeway's condition (i.e., "opens her eyes and responds to verbal commands and painful stimuli" (133 Ill.2d at 36)), under the majority's five-part test, as I read it, a test designed to potentially permit withdrawal of the nasogastric tube, it would seem that Mrs. Longeway does not qualify for withdrawal. Thus the majority has fashioned a remedy that this court and the residents of this State will be required to apply, but which, in all probability, does not do what the majority set out to do: "help this poor patient."
The majority justifies this step into legislation making by implying that the legislature has not to date taken any initiative on this question. The majority contends that "[w]e cannot defer to the legislature for some possible future expression from that body as to public policy,
The majority bases its decision that there exists a right to refuse "life-sustaining medical treatment in our State's common law and in provisions of the Illinois Probate Act." (133 Ill.2d at 44.) As the majority properly notes, Longeway did not execute a living will (see Ill. Rev. Stat. 1987, ch. 110 1/2, par. 701 et seq.) or a health care power of attorney (see Ill. Rev. Stat. 1987, ch. 110 1/2, par. 804-1 et seq.); therefore this case does not, strictly speaking, involve application of these statutory provisions. It is well accepted, however, that when legislation and the common law address the same issue (here that issue is the right to refuse treatment, or right to die), "legislation will govern because it is the latest expression of the law." (2A N. Singer, Sutherland on Statutory Construction § 50.01, at 421 (4th ed. 1984).) Additionally well settled is the concept that "[c]onstitutionally valid legislation that is enacted in response to current demands serves as a valuable evidentiary source of public policy." (2A N. Singer, Sutherland on Statutory Construction § 56.02, at 629 (4th ed. 1984).) Both the Living Will Act and the Health Care Power of Attorney Act provide a fertile "source of public policy"; further development and refinement of that public policy ought to be left to the able hands of the legislators, not imposed by the judiciary.
That this issue should be addressed by the legislature as an elected representative body has been recognized not only by this court (133 Ill.2d at 52-53) but has been
The legislature has indeed confronted the issue of an individual's rights to terminate medical treatment in certain circumstances. In 1983 the legislature passed "An Act to provide for the authorization by terminally ill persons of the discontinuance of medical procedures" (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 701 et seq.), which became effective January 1, 1984. The act is commonly referred to as the Living Will Act. (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 710.) In 1983, the bill creating the Living Will Act passed by a substantial margin; this was in sharp contrast to the first time such a bill had been introduced in the legislature 15 years earlier, when it received one solitary vote. This legislative action, though not controlling in the case before us, provides fertile groundwork for this court's review.
I note that one thing stands out clearly when the legislative debates on the Living Will Act are reviewed: the
Similar concerns were voiced during the Senate debates. In supporting the bill, Senator Sangmeister had this to say:
Senator DeAngelis supported the passage of the bill because, he said, the choice is "being [made] today but it's not being done by the person who should make the ultimate decision"; this bill assures that, rather than the family making the decision, the patient makes his own individual choice. 83d Ill. Gen. Assem., Senate Proceedings, June 27, 1983, at 183.
Four years later (1987) the Living Will Act was amended, with changes effective January 1, 1988. Senate Bill 1147, which effectuated the changes, "satisf[ied] the concerns of the Medical Society and Right-to-Life groups regarding the withholding of nutrition and water." (83d Ill. Gen. Assem., Senate Proceedings, May 12, 1983, at 153.) The primary change occurred in section 2(d), which originally had been titled "Life-sustaining procedure". The original provision read:
The Act as amended renames the procedure and specifically states that some choices are prohibited:
The Illinois living will legislation was initially effective over 1 1/2 years prior to the National Conference of Commissioners on Uniform State Laws approval and recommendation of the Uniform Rights of the Terminally Ill Act (URTIA). Though the legislature did not indicate any reliance on URTIA, I note that the amendments made by the Illinois legislature were only enacted after the Commission's recommendations were accepted and URTIA was available for State use.
In a prefatory note to URTIA, the commissioners acknowledged that the scope of the act is narrow; however, in drawing upon existing legislation they drafted an act which, they indicated, was intended to avoid complexity, simplify procedures, improve drafting and clarify language. URTIA defines "Life-sustaining treatment" as "any medical procedure or intervention that, when administered to a qualified patient, will serve only to prolong the process of dying."
Prior to approval of URTIA, the commissioners were apparently faced with questions regarding administration of nutrition and hydration under a definition of "Life-sustaining treatment" and therefore prepared a specific response entitled "Nutrition and Hydration in the Rights of the Terminally Ill Act." Two points raised in that response are of interest:
In summarizing the points raised, the commissioners concluded:
Our legislature, rather than leave the issue of nutrition and hydration to possible ambiguous interpretation, instead unequivocally indicated that it rejected any removal or withdrawal of medical procedures which would lead to death by dehydration or starvation. Thus, while acknowledging that there may be some "appropriate circumstances" in which nutrition and hydration may be withheld, the Illinois legislature made it clear that such circumstances could only be found when the procedure would have no impact upon an already imminent death, not when the removal would actually cause the death by starvation and dehydration. A death by starvation and dehydration is extremely painful (133 Ill.2d at 39-40) and not one which should be cavalierly imposed upon an incompetent individual.
While the majority at one point indicated their conviction that there is no law or public policy that precludes the decision announced today, they inexplicably acquiesced to the fact that, although the Living Will Act is
Obviously, defeated bills are not controlling, but rather merely instructive, useful evidence; thus, a bill that winds its way through three readings in the House and Senate, with full opportunity for vigorous debate, may
House Bill 4094 was defeated in the Senate, as the majority noted (133 Ill.2d at 54-55). We need not speculate on the reasons why; however, a review of the legislative debates will aid our "full appreciation" of the legislative trend. As the majority noted, House Bill 4094, introduced into the General Assembly in 1988, attempted to create a new act with a "presumption that nutrition and hydration are to be given unless refused by the patient while competent, with certain exceptions." (133 Ill.2d at 54-55.) In supporting the bill before the House (where the bill passed with a vote of 102 ayes, 12 present), Representative Curran indicated that, in his view,
When the bill went before the Senate, Senator Poshard spoke in favor of its passage:
Later in the same session, Senator Poshard indicated that he, by supporting the bill, did not intend or want to:
While many senators spoke, I will quote only one more in this review. Senator Kelly, in speaking in support of the bill, indicated:
House Bill 4094 did not go through the normal legislative committee process; this raised a concern for some of the senators, as Senator Rock pointed out in the course of the debates. The vote on the bill in the Senate — 26
Some might counter that these arguments are hollow based on the fact that a House Judiciary Committee, when presented in early May 1989 with a bill said to be similar to House Bill 4094, defeated the bill in committee. A defeat in committee, however, does not provide the same level of information and insight as may be gained from a full debate on the floor of the House or Senate. (See Gerill Corp. v. Hargrove Builders, Inc. (1989), 128 Ill.2d 179, 205-06.) Additionally, I note that the very complexity and gravity of this issue, evidenced by the legislature's continuing struggle, is further support that any expansion or restriction of the right to die must be left to the elected representatives in the legislature.
As the portions of the legislative debates quoted begin to show, the withdrawal of nutrition and hydration is a gravely important issue to the people of this State. Its very life and death importance demands that this court not rush in to "do something for this poor patient" but that the matter be more fully studied and reviewed by the legislature.
Our legislature would not be addressing this issue in a vacuum. The issue of third parties making decisions for incompetent patients has been addressed in the recent work of the drafting committee on amendments to the Uniform Rights of the Terminally Ill Act. The drafting committee has prepared an amendment to the act which would add a new and separate section. The proposed amendment, to be presented to the National Conference of Commissioners on Uniform State Laws during their annual meeting in August 1989, specifically addresses health care decisions made by others when the patient is incompetent.
This same language is incorporated, by explicit reference, through an amendment to section 4-1, the purpose section of the Powers of Attorney for Health Care Law.
Representative McCracken described the amendment as an "agreed Amendment" which "seeks to * * * expressly specify that the Act does not authorize or approve of euthanasia or suicide and that certain other
The act before this court as we decide this case indicates that under the Powers of Attorney for Health Care Law, the agent has no greater power than the principal. Additionally, the Act stresses that any actions undertaken on behalf of the principal must comport with the "public policy" of the statutes and case law of this State. As has already been elucidated above, the public policy again and again enunciated by the legislature is clearly one of favoring life. Similarly, our case law favors life.
This court addressed the issue of life as opposed to nonlife in Siemieniec v. Lutheran General Hospital (1987), 117 Ill.2d 230. In Siemieniec this court held that there is a strong public policy of preserving "the sanctity of human life, even in its imperfect state." (117 Ill.2d at 249.) The interest in life is no less merely because we are dealing here with those who may be close to the end of life rather than at its very beginning. In Siemieniec this court found persuasive the reasoning of the supreme courts of Idaho, Kansas, Alabama and New Jersey, which each found life precious. (Siemieniec, 117 Ill.2d at 250-51.) That reasoning is still persuasive. See Blake v. Cruz (1984), 108 Idaho 253, 260, 698 P.2d 315, 322 ("Basic to our culture is the precept that life is precious. As a society, therefore, our laws have as their driving force the purpose of protecting, preserving and improving the quality of human existence"); Bruggeman
In sum, the agent is limited to actions which the principal could take and which would be permissible under the public policy as established in the statutes and case law. Based on the public policy of this State as described above, termination of a life by starvation and dehydration is not a viable choice for an individual to make for himself through a living will executed while competent, let alone to make such a choice for another who is already incompetent. Under the majority's reasoning, if the agent would not have the authority to terminate nutrition and hydration, the guardian would not have that authority either.
That such policy decisions ought not to be made by four, or even seven, individuals on a court of law, but should rather be left to the larger elected legislative branch of government, is supported by a careful reading of history wherein we are reminded repeatedly of the importance of each small step taken in a particular direction. The concept of "one small step for man, one giant leap for mankind" has evidenced itself for both good and evil in our society. Dr. Leo Alexander, a professor of medicine who served as a medical consultant at the war-crimes trial of German physicians at the end of World War II, had the following to say about the atrocities perpetrated during the war:
I do not mean, by offering this quote from Dr. Alexander, to equate the decision before this court in any manner to the horror of decisions and actions made before and during the war. I fully recognize that we are here confronted by a loving family who is deeply concerned about a fellow family member whom they deeply love. However, an action taken by this court affects more than Mrs. Longeway. Every step taken in a certain direction does have a profound effect for those who follow. The direction which the people of this State ought to go must be based on more in-depth analysis than is possible for a court of law.
For these reasons alone I would vehemently dissent from the majority opinion; however I must continue by addressing other issues raised in the majority opinion which are based on faulty reasoning and which so utterly fail to recognize an already established State policy. The majority points to eight State courts which have addressed
When faced with a case of first impression, our court has in the past looked to decisions of sister States. This process is not to facilitate an engagement in a game of "Follow the Leader," but to assist the court by allowing for an analysis of other approaches and reasoning in arriving at our own independent decision. I do not believe that in this case it is necessary to look at what other States are doing. As I have already discussed, our legislature has already begun the process of addressing this issue. It is for this State alone to determine what is best for its residents based on our own enunciated public policy. However, because the majority has relied on decisions reached by other courts, I examine these cases more closely in order to point out the fallacy of their use here. I limit my discussion to decisions rendered by a State's highest court which specifically address the issue
I initially look to New Jersey, the first State supreme court which addressed the issue of withdrawal of nutrition and hydration. In In re Conroy (1985), 98 N.J. 321, 486 A.2d 1209, the court was confronted with a nephew's request to remove an incompetent 84-year-old nursing home resident from a nasogastric tube. Claire Conroy was not brain dead, comatose, or in a chronic vegetative state. The court framed the issue before it as one of determining "the circumstances under which life-sustaining treatment may be withheld or withdrawn from [an] incompetent, institutionalized, elderly patient with severe and permanent mental and physical impairments and a limited life expectancy." (98 N.J. at 335, 486 A.2d at 1216.) The New Jersey Supreme Court found that, based on a competent adult's common law right to self-determination, life-sustaining treatment may be withheld or withdrawn from an incompetent patient when it is clear that the particular patient would have refused the particular treatment involved under the circumstances (the "subjective test"). Life-sustaining treatment may also be withheld or withdrawn if either of two "best interests" test — a "limited-objective" or "pure-objective" test — is satisfied, the court held. However, based on the record before the court, and with the knowledge that Claire Conroy had already died, the court determined that had she been alive she would not have met the test that they set out and would have had to remain connected to the nasogastric tubes.
Why did the New Jersey court base their decision on the common law? Simple! The State had no legislation which even peripherally addressed the termination of medical treatment. (98 N.J. at 344 n. 2, 486 A.2d at 1220 n. 2.) The court recognized, however, that the legislature was the more appropriate agency to address the issue:
The court concluded, however, that "in the absence of specific legislation on the termination of life-sustaining treatment, we may not properly avoid the issue * * *." (98 N.J. at 345, 486 A.2d at 1221.) The court had only the common law on which to base their decision. Without any legislative enactment indicating a limitation or extension of the common law, the court was limited in their review. The legal reality faced by the New Jersey court was vastly different than our own present situation in Illinois.
Two years later the New Jersey Supreme Court was again faced with issues relating to termination of medical care. Although a trilogy of cases addressing termination of treatment were released on the same day, only one is of particular interest here. In re Jobes (1987), 108 N.J. 394, 529 A.2d 434, involved a husband's petition to remove a life-sustaining nutrition system from his comatose, 31-year-old wife who was residing in a nursing home. Because the incompetent patient had "failed to express adequately her attitude toward such treatment," the court was left to "determine who decides for the incompetent patient, the standard that the surrogate decisionmaker must use." (108 N.J. at 399, 529 A.2d at 436.) As was the case in Conroy, the court had to make this decision without the benefit of any legislative guidance.
In reaching a decision, the court described the patient's condition at length. Justice Handler, in a concurring opinion, summarized the patient's condition with the following description:
In finding that the right of such an irreversibly comatose patient to refuse life-sustaining medical treatment may be exercised by the patient's family under certain conditions, the court was painfully aware that "[t]hese considerations, spanning difficult individual and societal interests, argue forcefully for legislative intercession and resolution. In the meantime, the Court cannot responsibly evade its own duty * * *." 108 N.J. at 447, 529 A.2d at 461 (Handler, J., concurring).
Why is the legislature better suited to resolve these matters? Jobes addresses that very issue:
My research indicates that, to date, New Jersey has no legislative enactments affecting an individual's rights to terminate treatment. Unlike our State, New Jersey has not enacted a living will statute protecting the rights of even a competent individual to refuse treatment, nor has the State defined such terms as "life-sustaining procedure" or "death-prolonging procedure" in any other legislation.
While I jumped the time sequence above in order to discuss the New Jersey Jobes case, following Conroy, the Massachusetts Supreme Court was the next to address the issue of termination of treatment. Brophy v. New England Sinai Hospital, Inc. (1986), 398 Mass. 417, 497 N.E.2d 626, concerned a wife's petition to remove or clamp her husband's nasogastric tube. The court found that "Brophy is now in a condition described as a `persistent vegetative state.'" (398 Mass. at 421, 497 N.E.2d at 628.) In a decision based on both the common law and constitutional law, the court held that, because "Brophy's judgment would be to decline the provision of food and water and to terminate his life" (398 Mass. at 427, 497 N.E.2d at 631), a theory of substituted judgment would permit the treatment to be discontinued.
As becomes clear when reviewing the termination cases, these are extremely difficult cases and are not conducive to a unanimous disposition. Brophy, like the case now before this court, was not a unanimous decision. Three separate and impassioned dissents were written. One justice indicated that the majority opinion "affront[ed] logic, ethics, and the dignity of the human person" by "endors[ing] euthanasia and suicide." (398 Mass. at 442, 497 N.E.2d at 640 (Nolan, J., dissenting).) Another justice indicated that his principal objection
To the extent that Brophy was decided on constitutional grounds, the majority's reasoning is not applicable to the case before us. To the extent that its decision is based on the common law, I note that, like New Jersey, there were no legislative enactments addressing the issue of termination of treatment for competent patients or for incompetent patients, no legislatively defined terms. My current research indicates that Massachusetts still has not enacted any legislation which would stipulate the public policy of the State in regards to termination of medical procedures or define such terms as "life-sustaining
The supreme court of Maine was the next State high court to address the issue of removal of nutrition and hydration from an incompetent patient. In re Gardner (Me. 1987), 534 A.2d 947, like Brophy, was a 4-3 decision with a strong dissent. Joseph Gardner, at approximately 23 years of age, suffered permanent and totally disabling injuries to his head when he fell from the back of a moving truck. The court described him as being in a chronic and persistent vegetative state, though not terminally ill; moreover, he showed no evidence of any thought process, emotion or pain. As the supreme court of Maine noted, the trial court found that, prior to his 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." 534 A.2d at 949.
The Gardner majority based its decision to allow the removal of the feeding tubes on the common law right to refuse treatment, citing particularly to the precedents set by Massachusetts and New Jersey decisions which I discussed above. (534 A.2d at 951-52.) A major point of contention between the majority and the dissenters' interpretations of the law revolved around the import accorded the State's living will legislation, which "narrowly defined the life-sustaining procedures that could be discontinued under the Act to exclude nutrition and hydration." (534 A.2d at 952 n. 3.) The majority determined that the limitation in the living will legislation did "not limit our power to read more broadly under Maine common law the right of a patient to make decisions
The dissent, in rejecting the majority's analysis, recognized that the Maine legislature had specifically treated nutrition and hydration differently than other life-sustaining procedures under the Maine Living Will Act (22 M.R.S.A. § 2921(4) (Supp. 1987)): "[t]his legislative enactment reflects the value placed on life and the significance of food and water to our survival." (534 A.2d at 958 (Clifford, J., dissenting).) The State has, the dissenters indicated, "an interest in preserving the life of Joseph Gardner as an individual and in preserving life in general. [Citation.] This interest in preserving life derives from our instinct for self-preservation and is essential to our survival as a civilization." 534 A.2d at 957 (Clifford, J., dissenting).
Maine's Living Will Act defines a life-sustaining procedure as "any medical procedure or intervention that, when administered to a qualified patient, will serve only to prolong the dying process and shall not include nutrition and hydration." (Me. Rev. Stat. Ann. tit. 22, § 2921(4) (Supp. 1988).) Rather than analyze its own internal State policies, however, the Maine majority searched for support in the common law of fellow States, States which did not have such legislative indications of policy. While I would find this error fatal, as I do with the instant case, I also note that Gardner is distinguishable
Washington's Supreme Court addressed the issue of continued medical treatment for a terminally ill 22-year-old woman who was suffering from Batten's disease and who had been declared an incompetent at the age of 14. In re Guardianship of Grant (1987), 109 Wn.2d 545, 747 P.2d 445, was a 5-4 decision; the two separate dissents each disagreed with the majority's reasoning regarding its allowance of a refusal of nutrition and hydration.
Batten's disease is a "genetic, neurological, degenerative condition of the central nervous system. There is no known cure. Most victims die in their teens or early twenties." (109 Wash.2d at 547, 747 P.2d at 446.) The court further described the disease as follows:
Expert witnesses and caregivers testified that "Barbara is in the terminal stages of the disease and `in an almost vegetative state with little if any response to human contact.'" 109 Wash.2d at 550, 747 P.2d at 447-48.
Because the provisions of the statute did not apply, the majority found that Barbara had a right to refuse treatment based on a constitutional right of privacy and on the common law. (109 Wash.2d at 553, 747 P.2d at 449.) We look only at the court's common law rationale here. While the court fairly quickly addressed the issue of withholding resuscitation procedures, the court went to greater lengths to address the withholding of nutrition and hydration. (See 109 Wash.2d at 559-65, 747 P.2d at 452-55.) The majority relied on New Jersey's Conroy and intermediate court decisions in California and Florida to support their conclusion that nasogastric
It is this last point with which the dissenters most ardently disagreed, as noted in one of the separate opinions:
In another separate dissent the majority opinion was characterized as "in direct conflict with this court's duty to preserve life." (109 Wash.2d at 575, 747 P.2d at 460 (Goodloe, J., dissenting).) Additionally, by allowing nutrition and hydration to be withheld, "the majority authorizes death by starvation and dehydration," an authorization which "for all intents and purposes * * * authorizes mercy killing, arguably of a cruel nature." (109 Wash.2d at 576, 747 P.2d at 461 (Goodloe, J., dissenting).) The dissent further characterized the majority's decision as an extension of a legislative act, an extension which, after several attempts in the legislature, the legislature itself had not as yet seen fit to make. (109 Wash.2d at 577-80, 747 P.2d at 462-63 (Goodloe, J., dissenting).) As the dissent noted, "[t]he failure of the Legislature to extend the [Natural Death Act] demonstrates that, unlike the majority, the Legislature is having a difficult time determining the extent of authority which guardians ought to have in deciding matters of life and death for
New York's highest court was the next to issue a decision about the withdrawal of nutrition and hydration in In re O'Connor (1988), 72 N.Y.2d 517, 531 N.E.2d 607, 534 N.Y.S.2d 886. While the court refused to allow the withdrawal of nutrition and hydration, O'Connor provides a further example of a case in which this issue seriously divides a court. O'Connor involved an elderly hospital patient who, as a result of several strokes, was left mentally incompetent. Her daughters sought to prevent the insertion of a nasogastric tube to provide nutrition and hydration to the patient based on O'Connor's statements to the effect that she did not want to be a burden to anyone.
New York, like New Jersey and Massachusetts, has no legislation authorizing the execution of a living will; however, the New York legislature has enacted a law, effective April 1, 1988, which allows third parties to issue a "Do Not Resuscitate" order for incompetent patients under certain limited circumstances. (N.Y. Pub. Health Law §§ 2960 through 2978 (McKinney Supp. 1989).) Because there were no statutory provisions which addressed the issue of nutrition and hydration, the court looked solely to the common law of the State. In fashioning a test, based on the common law right of an individual to refuse treatment, the court extended, to a limited degree, the rights of the competent which may be applied
A concurring opinion, submitted by one justice, was filed. The concurring opinion called for a change in the present New York rule to assist in future decisions which may "involv[e] circumstances more extreme than those presented here." (72 N.Y.2d at 535, 531 N.E.2d at 616, 534 N.Y.S.2d at 895 (Hancock, J., concurring).) However, the justice noted that "[t]he particular circumstances here — e.g., the patient is neither terminal, comatose nor vegetative; she is awake, responsive and experiencing no pain; and the prescribed procedure is relatively simple and routine —  weigh heavily in favor of continuing the medically-assisted feeding under any of the approaches adopted by other State courts or recommended in the pertinent literature." 72 N.Y.2d at 535, 531 N.E.2d at 616, 534 N.Y.S.2d at 895 (Hancock, J., concurring).
The dissent in O'Connor appeared to recognize that, based on established law in New York, the majority's decision was correct; however, the dissent argued that "simple decency requires that a remedy be found" and that the court should "provide relief" by broadening New York's limited rule. Following an extensive description of O'Connor's physical condition, the dissent indicated that the test devised by the majority, that is, the clear and convincing test, was "unworkable because it
In Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408, Missouri's highest court, like New York's, refused to allow nutrition and hydration to be withheld from an incompetent ward who was in a persistent vegetative state and not terminally ill. (Cruzan, 760 S.W.2d at 411-12.) In denying the co-guardians' request to terminate treatment, the court noted:
In refusing to find the cost too great, the court stressed the State's interest in preserving life, an interest which encompasses both "the prolongation of the life of the individual patient and an interest in the sanctity of life itself." (760 S.W.2d at 419.) The court looked to the State's policy "strongly favoring life" (760 S.W.2d at 419) embodied in the State living will statute.
The import of the statute is not that its provisions were here applicable, the court concluded, but rather that it contains an "expression of the policy of this State with regard to the sanctity of life." 760 S.W.2d at 420.
The Cruzan court noted that a common law right to refuse treatment is not absolute, it must be balanced against the State's interest in life. That interest is not in the quality of life, but is "an unqualified interest in life." (760 S.W.2d at 422.) Based on the State's strong policy favoring life, the majority concluded:
In looking at and reviewing the cases, it is interesting to note that Missouri's statutory position is similar to ours in Illinois.
One last case, not cited by the majority, is Connecticut's McConnell v. Beverly Enterprises-Connecticut, Inc. (1989), 209 Conn. 692, 553 A.2d 596. The McConnell case was initiated on behalf of a "patient who is presently in a terminal coma, to implement the patient's clearly expressed wish for the removal of a gastrostomy tube that is artificially providing nutrition and hydration." (209 Conn. at 695, 553 A.2d at 598.) The patient here in question was a registered nurse who had "expressly and repeatedly told her family and her co-workers that, in the event of her permanent total incapacity, she did not want to be kept alive by any artificial means, including life-sustaining feeding tubes." 209 Conn. at 696, 553 A.2d at 599.
The court in McConnell approved the removal of nutrition and hydration tubes by construing the provisions of the State's "Removal of Life Support Systems Act" (Conn. Gen. Stat. § 19a-570 et seq. (Supp. 1989)). The act defines a life-support system which may be removed pursuant to its provisions as "any mechanical or electronic device, excluding the provision of nutrition and hydration, utilized by any physician or licensed medical facility in order to replace, assist or supplement the function of any human vital organ or combination of organs and which prolongs the dying process." (Conn.
A concurring opinion submitted by one justice disagreed with the majority's interpretation of the statute; rather, the justice determined, the decision should be based on the common law.
I am left to wonder what Connecticut's majority would have classified as "normal nutritional aids" had the decision been written in 1885, the year before the drinking straw was first marketed. And what would have been "normal" before the advent of the spoon? Are such life and death matters to be decided on the basis of distinguishing what is "normal" and what is not at a particular point in time? I cannot fathom that such rationalization is adequate in deciding who shall live and who shall die. Such an interpretation of statutory language, in my mind, defies logic!
Thus, by my analysis, that long list of cases decided in sister States which the majority offered as applicable to our situation in Illinois has been whittled down to two cases: Maine's In re Gardner (Me. 1987), 534 A.2d 947, and Missouri's Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408. Both cases were vehement 4-3 decisions, yet each reached a different conclusion. Gardner's majority relied solely on the common law, as enunciated and highlighted by two prior decisions from States which did not
Whose reasoning is more persuasive? This certainly does not form the great "consensus" that the majority alluded to. Were we to look at the record before us, a record which does not present a picture of a patient who clearly and convincingly indicated that she would refuse the nutrition and hydration as did the patient in Gardner, we are left only with the Cruzan decision.
It is obvious that the question of who may make decisions for incompetent patients, and to what degree a third party may go in making those decisions, is a question that is of vital importance to the citizens of this State. Not only in the case before our court, but in a myriad of situations in hospitals across our State, individuals are seeking guidance as they confront the most heartrending physical conditions. I am not unaware of the pain experienced by family members as they watch and experience the slow death of their loved ones. I dissent from the majority opinion precisely because the question is of such vital importance to our society; this is not a decision for our court to be making.