# Keiner v. Community Convalescent Center

> Illinois Supreme Court · November 13, 1989 · 133 Ill. 2d 33

URL: https://www.frixlaw.com/law-library/cases/6984910

## Case

- **Full name:** In re ESTATE OF LONGEWAY (Bonnie Keiner v. Community Convalescent Center, Appellee)
- **Court:** Illinois Supreme Court
- **Decided:** November 13, 1989
- **Citations:** 133 Ill. 2d 33; 139 Ill. Dec. 780; 549 N.E.2d 292; 1989 Ill. LEXIS 152
- **Precedential status:** Published
- **Opinion:** Dissent by Ward
- **Judges:** Clark, Ryan, Ward
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6984910

## Opinion text

JUSTICE WARD, dissenting:
In human terms the most awesome of this court’s responsibilities is judging whether the imposition of the death penalty following a criminal trial should be carried out. Our legislature has authorized the imposition of that penalty and no one would suggest that in the absence of that legislative empowerment, this court could direct the taking of the life of the most depraved criminal. Justice Clark in his dissent convincingly observes that, not only has the legislature not authorized the withdrawal of life-sustaining food and fluids for the purpose of causing death, but in express terms has prohibited it in the absence of conditions not present here. Cases like this are among the most melancholy in the human experience, but the agony of deciding does not give license to act without, and even more, to act in disregard of, the legislative will.
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 majority’s holding that an incompetent person has a common law right to refuse artificial nutrition and hydration and that, as an expedient, I suggest, it is said that this right may be exercised by a third person substituting for the incompetent person. The majority states:
“Under substituted judgment, a surrogate decision-maker attempts to establish, with as much accuracy as possible, what decision the patient would make if he were competent to do so.” 133 Ill. 2d at 49.
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, Taussig & Van Eys, The Physician’s Responsibility Toward Hopelessly Ill Patients, 310 New Eng. J. Med. 955 , 957 (1984).) In the absence of these prerequisites, a person cannot make an informed decision to consent to or to refuse a particular form of treatment. In re Conroy, 98 N.J. at 347 , 486 A.2d at 1222 ; Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408 .
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 other courts that have spoken of the incompetent patient’s “right” to refuse life-sustaining treatment. In the effort to support the incompetent patient’s “right to choose” to refuse life-sustaining treatment, the majority does not consider that the right to refuse treatment is rooted in and dependent upon the patient’s capacity for informed decision, which an incompetent patient, of course, does not possess.
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 only practical way to prevent destruction of the right is to permit the guardian and family of Karen to render their best judgment *** as to whether she would exercise it in these circumstances.” 70 N.J. at 41 , 355 A.2d at 664 .
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 Quinlan would want if she could decide for herself. “What the court is really saying, I believe, is that if Karen’s constitutional right of privacy includes a right to elect to die and that she presently lacks the capacity to choose and we cannot discern from her previous statement how she as a particular individual would have chosen, we may surmise that she would have chosen to die because we presume that the great majority of those in her situation would so choose.” (Emphasis in original.) (1979 U. Ill. L.E at 518 n.238.) Kamisar continues: “If, in the absence of hard evidence about a patient’s wishes when actually put in a Quinlan-type situation, a court is to indulge in presumptions, one would think that it would presume just the opposite of what it did in Quinlan.” (Emphasis in original.) 1979 U. Ill. L.F. at 518 n.238.
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).
The majority discusses the termination of life-sustaining treatment under the substituted-judgment approach as though the surrogate will simply effectuate the incompetent patient’s intent. Typically, however, there is no direct evidence that the incompetent patient intended to refuse the treatment. Instead, the majority must presume that a surrogate decisionmaker will acquire such intimate knowledge of the patient’s basic views or philosophy that the surrogate can formulate a reliable opinion regarding how the incompetent would have reacted to his current predicament even if the incompetent had never previously expressed views upon the subject. (Jobes, 108 N.J. at 438, 529 A.2d at 457.) The majority also seemingly presumes that the choice made by a surrogate is equivalent to the choice the incompetent patient would make if competent. In doing so, the majority ignores the inherent differences between choices made by individuals who are competent and choices made for individuals who are not. Because Mrs. Longeway’s incompetent condition makes it impossible to definitively ascertain her present intent toward the withdrawal of nutrition and hydration, allowing a third party to make a substituted judgment on her behalf may violate, rather than exercise, her right to self-determination and to control her own body. As the court in Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408 , which is now before the Supreme Court, noted, “courts seldom indulge the temptation to determine whether one person’s autonomy and self-determination can be exercised by another, though the very terms seem to indicate that these rights are not alienable, unless so determined by the person for whom they are exercised.” (Cruzan v. Harmon (Mo. 1988), 760 S.W.2d 408 , 416 n.11.) By claiming to preserve the incompetent patient’s right to self-determination, the majority is relieved of the burden of acknowledging that it is actually allowing third parties to decide how that right shall be exercised.
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 other than the patient’s suggested wish, such as the quality of the patient’s life, may intrude upon the decisionmaking. Under substituted judgment, a surrogate may decide that the incompetent patient would not want to live in his present condition. The surrogate arrives at that decision, however, by placing himself in the position of the incompetent patient and then using his own subjective standard and personal value system to judge the incompetent’s quality of life. Such a determination is obviously fraught with the danger that the surrogate’s decision will reflect the surrogate’s value system (or a mistaken view of the incompetent’s value system) and be opposed to the patient’s personal value system. Because the surrogate is judging the quality of the patient’s life on the surrogate’s own terms, there is always the risk that the surrogate will allow the patient to die simply because he is incompetent. (Note, Live or Let Die; Who Decides an Incompetent’s Fate? In re Storar and In re Eichner, 1982 B.Y.U. L. Rev. 387, 393.) This concern prompted the New York Court of Appeals to reject the “substituted judgment” approach as “inconsistent with our fundamental commitment to the notion that no person or court should substitute its judgment as to what would be an acceptable quality of life for another.” (In re O’Connor (1988), 72 N.Y.2d 517, 530 , 531 N.E.2d 607, 613 , 534 N.Y.S.2d 886, 892 .) Allowing a guardian to substitute his judgment for that of an incompetent ward creates a grave risk that due to the guardian’s own personal values, biases, or mistaken beliefs concerning the ward, there will be wards who will undergo the death described in frightening terms in the majority opinion, without ever having had such an intent to do so. It is fully understandable that the inherent risks of and the consequences of mistake which necessarily accompany the decision to terminate another person’s life-sustaining treatment and take his life have led thoughtful commentators to reject the notion of substituted judgment. See L. Tribe, American Constitutional Law 1369 (1978); Kamisar, Some Non-Religious Views Against Proposed “Mercy-Killing” Legislation, 42 Minn. L. Rev. 969 (1958).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6984910. Public record. Not legal advice.