We are asked to decide whether a judge correctly determined that a profoundly retarded woman in a persistent vegetative state would choose, were she competent, to terminate her nasoduodenal feeding and hydration. After hearing, the judge made careful, detailed written findings and concluded that the woman, Jane Doe (a pseudonym), would choose to do so. Doe's parents agree with the judge's determination. Doe's permanent guardian (guardian), the guardian ad litem (GAL), and Doe's physicians agree with the judge's determination.
I. Prior proceedings. In September, 1989, the department petitioned the Probate and Family Court Department to appoint a guardian to make medical decisions for Doe. Doe's parents declined to be appointed guardians, and opposed a proposal to replace her nasoduodenal feeding and hydration tube with a surgically-implanted percutaneous endoscopic gastrostomy (PEG) tube.
In May, 1990, Doe's guardian filed a petition requesting the judge to authorize the "withdrawal of the nasoduodenal tube through which [Doe] is presently receiving hydration and nutrition." On the same day, the GAL filed his third and final report with the court. In it, the GAL stated that "[t]here is no hope of either arresting or reversing [Doe's] degenerative neurological disease. If the ultimate question is to only prolong the dying process of a persistent vegetative patient with no hope of regaining cognitive functioning, then ... [Doe] would consent to the withholding of treatment including nutrition and hydration."
The petition filed by Doe's guardian asked the judge "to determine whether [Doe] is capable of making informed decisions regarding the continuation of her medical treatment including, but not limited to, the provision of hydration and nutrition by nasoduodenal tube." The petition further requested the court, if it were to find that Doe was incompetent, to grant authority for "(1) [t]he withholding of invasive medical and surgical procedures; (2) [t]he withholding of life support medications and treatments, including, but not limited to, antibiotics; [and] (3) [t]he withdrawal of the nasoduodenal tube through which [Doe] is presently receiving hydration and nutrition."
The judge held a hearing on June 8, 1990, to consider the guardian's general petition. At the hearing, both the guardian and counsel for Doe agreed that Doe was incompetent, that she existed in a persistent vegetative state, and that there was no hope for improvement in her condition. The guardian also stated that Doe's parents supported the petition.
II. The medical facts. The medical facts are not in dispute and are as follows. Jane Doe is a thirty-three year old, profoundly retarded woman, who exists in a "persistent vegetative state."
Doe spent the first five years of her life at home with her parents and older brother. During the years Doe was at home, she was hospitalized repeatedly for a variety of ailments.
In 1982, Doe had severe difficulty swallowing and repeatedly aspirated food fed to her by conventional means. Doe's physicians moved her to the Wrentham State School Medical Center (infirmary) and employed a nasoduodenal tube for feeding and hydration. Neither Doe nor her parents — nor, indeed, anyone — consented to the placement of the tube. Since 1982, Doe has received all her nutrition and hydration through the nasoduodenal tube.
Doe is dependent on the staff at Wrentham for all aspects of her care.
Doe displays no awareness of herself or her surroundings. Doe "carries out no volitional activity, nor does she show any cognitive response to any type of sensory stimulus" — including stimuli calculated to cause intense pain in a conscious individual.
III. The right to refuse treatment.
The right to refuse treatment or to discontinue treatment is based on a person's strong interest in being free from nonconsensual invasions of the person's bodily integrity. See Munoz, supra at 122-123; Brophy, supra at 430; Harnish v. Children's Hosp. Medical Center, 387 Mass. 152, 154 (1982); Matter of Spring, 380 Mass. 629, 634 (1980); Commissioner of Correction v. Myers, 379 Mass. 255, 261 (1979); Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 738-739 (1977). See Cruzan, 110 S.Ct. 2841, 2846-2847 (1990). In re Storar, 52 N.Y.2d 363, 376-377, cert. denied, 454 U.S. 858 (1981); In re Quinlan, 70 N.J. 10, 38-42, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976). Because "the value of human dignity extends to both [competent and incompetent] individuals," Saikewicz, supra at 745, incompetent individuals have the same rights as competent individuals to refuse and terminate
The doctrine of substituted judgment is the means by which incompetents may exercise their right to refuse or terminate treatment. We have explained the doctrine in the following way. The judge, after hearing, must try to identify the choice "which would be made by the incompetent person, if that person were competent, taking into account the present and future incompetency of the individual as one of the factors which would necessarily enter into the decision-making process of the competent person." Saikewicz, supra at 752-753.
Lack of a prior expressed intention regarding medical treatment does not bar use of the doctrine of substituted judgment. See Moe, supra at 566; Matter of Spring, supra at 640. Accord Foody v. Manchester Memorial Hosp., 40 Conn.Sup. 127 (1984); Guardianship of Barry, 445 So.2d 365, 371 (Fla. App. 1984); Estate of Longeway, 133 Ill.2d 33, 50 (1989). Cf. Guardianship of Weedon, 409 Mass. 196 (1991). We recognize that in situations in which there is an attempt to use substituted judgment for a never-competent person, it is a legal fiction. It is the legal mechanism by which society (at least in Massachusetts) attempts to vindicate liberty interests, albeit through a legal fiction. We are also aware that therefore "the substituted judgment [doctrine] is ... difficult to apply." Guardianship of Roe, 383 Mass. 415, 444 n. 16 (1981). That difficulty, however, "provides inadequate justification for denying its benefits...." Id. "While it may ... be necessary to rely to a greater degree on objective criteria [in the case of a never-competent person] ... the effort to bring the substituted judgment into step with the values and desires of the affected individual must not, and need not, be abandoned." Saikewicz,
IV. Findings as to substituted judgment. After a determination of incompetency has been made,
a. Patient's preferences. In its effort to ascertain what Doe would choose for herself were she competent, the court below made a thorough inquiry into the nasoduodenal feeding and hydration treatment she receives. The judge found that a nasoduodenal tube is "intrusive" and that "[e]xtensive handling and manipulation of [Doe's] body are themselves pervasive bodily intrusions."
Because Doe "has never been in a position to make an informed decision for or against any kind of medical treatment," the judge determined that the views of Doe's parents were "the best mirror of [Doe's] wishes," had she ever been competent to form a preference.
c. Religious beliefs. The judge noted that Doe has "never been in a position to acquire any religious beliefs" and, therefore, that she holds "[no] religious beliefs ... that would" oppose the termination of nasoduodenal feeding and hydration. The judge also remarked that no one — including counsel for Doe — has identified any religious belief of either Doe or her family that would compel the continuation of tube feeding.
d. Prognosis and side effects. If her nasoduodenal tube is not removed, the judge found, the prognosis is an indefinite continuation of Doe's persistent vegetative state. "If the hydration and nutrition treatment by tube is withdrawn," the court explained, "then [Doe] would likely die of dehydration in a matter of days." The medical evidence indicates that, because of Doe's persistent vegetative state, she will not suffer the effects of dehydration. For the same reason, side effects
V. The Commonwealth's interests. In granting the guardian's petition, the judge recognized that a ward's right to refuse treatment through the exercise of substituted judgment is not absolute. See Munoz, supra at 125; Brophy, supra at 432, citing, inter alia, Myers, supra at 261-262; Saikewicz, supra at 740-741. Rather, it may be constrained by at least four important State interests: (1) the preservation of life; (2) the protection of innocent third parties; (3) the prevention of suicide; and (4) the maintenance of the ethical integrity of the medical profession. See Munoz, supra at 125; Brophy, supra at 432; Saikewicz, supra at 741; Matter of Spring, supra at 641; Matter of Hier, 18 Mass.App.Ct. 200, 210 (1984).
a. Preservation of life. The judge emphasized that the Commonwealth's interest in preserving life is of vital importance. "The utmost caution," the judge admonished, "will be required to insure that overriding State interests are appropriately addressed." He nevertheless concluded that the Commonwealth's interest in preserving life was not sufficient in this case to override Doe's substituted judgment to refuse treatment.
The Commonwealth's interest in preserving life is strongest when it is attempting to protect its citizens from abuse or infringement of their rights. Where, however, as here, the appellees are striving to vindicate Doe's right to refuse invasive treatment, Doe's "right to self determination must prevail over the State's interest in preserving life for all." Gray by Gray v. Romeo, 697 F.Supp. 580, 589 (D.R.I. 1988), citing Brophy, supra at 438-439. In re Gardner, 534 A.2d 947, 955 (Me. 1987). Because the judge found that, were she competent, Doe would refuse nasoduodenal feeding, the maintenance of the tube against Doe's wishes "robs her of the right to determine her course of care." Gray, supra at 589.
The judge noted that had he been confronted with a petition to initiate nasoduodenal feeding and hydration, he would
b. Prevention of suicide. Because Doe will commit no act, the court found that the Commonwealth's interest in preventing suicide is not a consideration. It is well settled that withdrawing or refusing life-sustaining medical treatment is not equivalent to attempting suicide. See Munoz, supra at 125, citing Saikewicz, supra at 743 n. 11; Brophy, supra at 439. Accord Conroy, supra at 350-351. Absent an intent to die, there can be no suicide. As we have previously held, a "death which occurs after the removal of life sustaining systems is from natural causes, neither set in motion nor intended by the patient." Brophy, supra at 439, citing Rasmussen v. Fleming, 154 Ariz. 200, 204 (1986), quoting Welfare of Colyer, 99 Wn.2d 114, 123 (1983). As the judge noted, Doe has no ability to commit a volitional act.
The judge determined that Canavan's disease, not the removal of the feeding and hydration tube, would be the death
c. Medical ethics. Finally, the judge noted that "[t]here appears to be no disagreement that the proposed course of action by the guardian does not undermine the integrity of the medical profession."
VI. The judge's determination. After carefully reviewing all the available evidence, and after visiting Doe personally, the judge determined that Doe's "subjective judgment would be to request withdrawal or withholding of treatment" including nasoduodenal feeding and hydration.
In his analysis of the legal issues, the judge concluded that the legal standard to be used as a guide in making his decision was "a `preponderance of the evidence' with an `extra measure of evidentiary protection' [by reason of] specific findings of fact after a `careful review of the evidence.'" Doe's counsel asserts that the judge erred in using this standard. We do not agree. We are firmly convinced that the seriousness of the decision will be more forcefully impressed on judges if they are required to set forth their findings in "meticulous
In Guardianship of Roe, 383 Mass. 405, 425 (1981), we said that, in cases involving important personal rights, "we have refused to apply either the `beyond a reasonable doubt' standard or the `clear and convincing' standard." Rather, we have determined that "fact-finding is enhanced by requiring that it be done in writing and in meticulous detail." This rationale clearly applies to substituted judgment determinations. We are confident that judges, mindful of the serious consequences following entry of substituted judgment orders, will enter such orders only after carefully considering the evidence and entering specific findings on each factor and then balancing the various interests. Id. What we require is careful work and reflection on the part of the judge before entering a substituted judgment order.
On appeal, counsel for Doe relies on cases that he claims require that the standard be clear and convincing evidence: Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489 (1983) (administration of psychotropic medication to inpatient); Roe, supra (administration of antipsychotic medication to noninstitutionalized ward); Doe v. Doe, 377 Mass. 272 (1979) (civil commitment); Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271 (1978) (civil commitment); Santosky v. Kramer, 455 U.S. 745 (1982) (termination of parental rights); Addington v. Texas,
In this case, the judge's findings "make it manifest that the utmost care was devoted to the determination of [substituted judgment]." Custody of a Minor (No. 1), 377 Mass. at 886. After finding the facts and analyzing all the factors, the judge concluded that Doe's "subjective judgment would be to request withdrawal or withholding of treatment." The judge determined that, were Doe competent, she would wish to "go in peace."
The judge's decision and order are affirmed.
NOLAN, J. (dissenting).
The court again decides to play God. Death by starvation and dehydration will not assist Jane Doe in her unquestionable desire to "go in peace." See Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 444 n. 2 (1986) (Lynch, J., dissenting) (detailing physical
There is absolutely no basis on which to conclude that Doe would choose to die by starvation and dehydration if she were competent. The possibility that she wishes to terminate the provision of food and water is no more likely than the possibility that she fears this action and hopes, in her helpless state, that society will continue to meet her basic needs.
As an initial matter, the substituted judgment doctrine, which even the majority opinion recognizes as a "legal fiction," is a completely inappropriate device in cases involving the medical treatment of incompetents.
Even if one were to overlook the basic inappropriateness of using a property law concept in this situation, the substituted judgment doctrine itself, as it developed in property law, bears little resemblance to its use in the area of medical treatment for incompetents. In the first place, the English common law differentiated two types of incompetents: the lunatic, who once possessed a sound mind and was expected to recover, and the idiot, who never possessed a sound mind. Id. at 16. The substituted judgment doctrine in property law applied only to lunatics, for whom there was evidence of their former intentional states, and it was not applied to an incompetent such as the patient in this case for whom there was no evidence of her former intentional state. See id. at 63-64
Even the Whitbread decision, which only concerned a lunatic, generated judicial distrust, and later decisions imposed strict evidentiary constraints upon its use. Id. at 24-25. Chief among these constraints was evidence of the lunatic's former intentional state. Id. at 25. "Subsequent Chancellors looked for a degree of consanguinity, a history of prior warmth and affection, perhaps statements made by the lunatic of his intent to make gifts to the petitioner, or even evidence of past gift-giving on which to hang a moral obligation. He was no longer a generic, reasonable lunatic prone to giving his money away.[
When the substituted judgment doctrine in property law was transported to America, the evidentiary constraints were even stricter than those in England. Harmon, supra at 27. Indeed, a presidential commission stated: "The substituted judgment standard can be used only if a patient was once capable of developing views relevant to the matter at hand; further, there must be reliable evidence of these views." President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life Sustaining Treatment at 133 (1983). How ironic that a property law concept not only has been transformed to our jurisprudence on the rights of incompetents to medical treatment but also has been applied more liberally in this area.
The majority opinion observes, ante at 521, that "[t]he Commonwealth's interest in preserving life is strongest when
The court ostensibly involves itself in this matter to protect the interests of the vulnerable and then takes advantage of Ms. Doe's vulnerability to fashion an argument that she is a social, medical and familial burden and that her simple, fundamental needs should no longer be met. Ms. Doe cannot speak, so the court utters fatal words on her behalf. The court should not guess as to what she would say, if she had the ability to do so. On balance, the only choice which truly respects the value of Ms. Doe's life — indeed, human life — is the recognition and acceptance of our duty to feed and hydrate this dependent member of our society, until her inevitable demise.
"The feeding of the hungry, whether because they are poor or because they are physically unable to feed themselves, is the most fundamental of all human relationships.... It is a most dangerous business to tamper with, or adulterate, so enduring and central a moral emotion." Callahan, On Feeding the Dying, 13 Hastings Center Rep. at 22 (Oct. 1983). Widespread acceptance of this social sentiment is reflected in the fact that, out of thirty-nine living will statutes, twenty explicitly provide that "medically administered nutrition and hydration are not life-sustaining treatments which can be withdrawn pursuant to a directive." Zinberg, Decisions For The Dying: An Empirical Study of Physicians' Responses To
The characterization of the provision of food and water as a medical treatment or a basic entitlement requires a determination of what life means — a task of no small magnitude. Yet, the conclusion easily reached today regrettably answers that profound question, stating, in effect, that those persons who depend on the care of others and technological advances for their comfort and survival do not have "life," or at least do not have a protected interest in it.
Therefore, I dissent.
O'CONNOR, J. (dissenting, with whom Lynch, J., joins).
The judge determined, and the court affirms, that, "were Doe competent, she would wish to `go in peace.'" Ante at 525. As I did in Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417, 448-453 (1986), and Norwood Hosp. v. Munoz, 409 Mass. 116, 131-133 (1991), I protest the court's legal embrace of suicide — and beyond. As recently as 1980, the court stated that, "a competent person has a general right to refuse medical treatment in appropriate circumstances, to be determined by balancing the individual interest against countervailing State interests, particularly the State interest in the preservation of life" (emphasis added). Matter of Spring, 380 Mass. 629, 634 (1980). See also Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 745 (1977). More recently, however, and ominously, the limiting references to appropriate circumstances and State interests have disappeared from the court's definition of the right to refuse life-sustaining treatment. In the present case, the court describes the right this way: "Competent individuals have the right to refuse medical treatment. Norwood Hosp. v. Munoz, 409 Mass. 116, 122 (1991). They have a concomitant right to discontinue medical treatment. Brophy[, supra at] 438." Ante at 517. Then, in order to make clear that the new formulation of the rule is indeed designed to grant competent individuals an unqualified and absolute right of self
Suicide, the purposeful termination of one's own life, is no less suicide when death is accomplished by inaction than when an affirmative act is employed as the agent of death. As Justice Scalia wrote in Cruzan v. Director, Mo. Dep't of Health, 110 S.Ct. 2841, 2861 (1990) (Scalia, J., concurring), "[i]t would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide.... Starving oneself to death is no different from putting a gun to one's temple as far as the common-law definition of suicide is concerned; the cause of death in both cases is the suicide's conscious decision to `put an end to his own existence.' 4 Blackstone, [Commentaries] at *189." Similarly, there is no valid moral or legal distinction between active and passive euthanasia.
I would agree that the law should recognize a competent person's right to refuse or withdraw medical treatment when that choice is not motivated by a desire to die but, instead, is reasonably motivated by a desire to avoid procedures that are in themselves, and not simply because they prolong life, physically or emotionally painful. Suicide, however, is a different matter. Society's respect for the value of every human life without reference to its condition, the cornerstone of
Can it reasonably be doubted that legal acceptance of suicide, assisted suicide, and voluntary euthanasia presents a serious risk that acceptance of involuntary euthanasia (mercy killing not chosen by the affected individual) is soon to follow? Today's decision is most instructive. Indeed, it is a case in point. By a process of substituted judgment, a Probate and Family Court judge, affirmed by this court, attributed to Jane Doe, a woman who has been profoundly retarded since infancy and exists in a persistent vegetative state, a choice to discontinue the tube-feeding and hydration necessary to her
The court states: "We recognize that in situations in which there is an attempt to use substituted judgment for a never-competent person, it is a legal fiction." Ante at 518. Black's Law Dictionary 894 (6th ed. 1990), defines "legal fiction" this way: "Assumption of fact made by court as basis for deciding a legal question. A situation contrived by the law to permit a court to dispose of a matter, though it need not be created improperly; e.g. fiction of lost grant as basis for title by adverse possession." Doe's choice to discontinue nourishment and hydration is indeed a contrivance. By the nature of her illness, she is without pain; "she is without emotion of any sort." Ante at 516. Therefore, nothing related to her own best interests would suggest to her, were she competent, that it is time for her to go in peace. And even if she were hurting, how can anyone say, applying even the minimal preponderance of the evidence standard of proof, that it has been established that Doe, if she were competent, would choose death over life? Almost everyone has known someone who has tenaciously clung to life against all odds despite immense anguish and pain. There are many possible explanations for that in addition to mankind's innate instinct to survive. For example, were she competent, Jane Doe might consider her
The court's attempt to use substituted judgment for a never-competent person is not the only fiction to be found in its opinion. There are several others, but I shall focus on only three. The first of these is that the court's approval of the withdrawal of Jane Doe's nutrition and hydration is given for Jane Doe's benefit. That leads me to ask how she benefits from an early death. She is not burdened by life. She need not "go" to be in peace. For all that appears, with food and drink and care she can "stay" in peace. Any benefit derived from terminating Jane Doe's life is derived by someone else.
The second fiction I wish to address concerns causation. Quoting Brophy, supra at 439, the court claims that "death which occurs after the removal of life sustaining systems is from natural causes, neither set in motion nor intended by the patient." Ante at 522. The court states, with obvious approval, that "[t]he judge determined that Canavan's disease, not the removal of the feeding and hydration tube, would be the death producing agent if the tube is removed." Ante at 522-523. That surely is "[a] situation contrived by the law to permit a court to dispose of a matter." The court employs a
The fiction as to causation is especially disturbing because its apparent purpose is to give support to the further fiction, expressed elsewhere in the court's opinion, that the feeding and hydration of Jane Doe may be discontinued without anyone being responsible for her death. Doe will not be responsible, says the court, because she is incapable of choice ("Doe has no ability to commit a volitional act." Ante at 522). Others will not be responsible because they are only vindicating Jane Doe's choice, not exercising their own. Ante at 522. In any event, the court says, Doe's death will result only from natural causes and not from starvation due to withdrawal of the nasoduodenal tube.
I am not insensitive to the immense burden carried by Jane Doe's family for a long time. Furthermore, I do not underestimate either the complexity of questions that may arise as a result of scientific advancements enabling the prolongation of life, nor am I unaware of associated anguish and stress. Lastly, I do not intend by the expression of my views in this opinion to demonstrate disrespect for those with whom I disagree. However, I must make very clear that I view the court's decision and its reasoning today as seriously wrong. The implications of this decision are frightening, not only for Jane Doe but for others similarly situated, such as the institutionalized, the elderly, and children with "defects" who are too young to make decisions for themselves. I would reverse the judge's order.
Doe's counsel also cites termination-of-treatment cases decided by other courts. To the extent that those States limit their inquiry to express statements of preference, Matter of Westchester Medical Center on Behalf of Mary O'Connor, 72 N.Y.2d 517 (1988); McConnell v. Beverly Enters. - Conn., Inc., 209 Conn. 692 (1989), or do not use substituted judgment analysis, In re Swan, 569 A.2d 1202 (Me. 1990); Couture v. Couture, 48 Ohio App. 3rd 208 (1989); Gardner, supra, they are inapplicable.