# Matter of Jobes

> Supreme Court of New Jersey · June 24, 1987 · 108 N.J. 394

URL: https://www.frixlaw.com/law-library/cases/9702261

## Case

- **Full name:** In the Matter of Nancy Ellen Jobes
- **Court:** Supreme Court of New Jersey
- **Decided:** June 24, 1987
- **Citations:** 108 N.J. 394; 529 A.2d 434; 1987 N.J. LEXIS 346
- **Precedential status:** Published
- **Opinion:** Concurrence by Pollock
- **Judges:** Garibaldi, Handler, Pollock, O'Hern
- **Cited by:** 112 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/9702261

## How later opinions describe it (automated extraction)

- stating that, if a court considers whether the proposed guardian would be an appropriate person to make future medical decisions for the ward, “no further judicial intervention [is] necessary”
- holding this to be “evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.”

## Opinion text

POLLOCK, J.,
concurring.
Subject to the thoughts expressed in this opinion, I join in the opinion of the Court and in the concurring opinion of Justice Handler.
*448 I begin by endorsing the Court’s reliance on a competent patient’s right of autonomy to determine the course of his or her medical treatment. In consultation with physicians and other trusted advisers, a patient generally should have the right to determine when treatment should both begin and end. I also agree with the Court’s recognition of the family as the appropriate social unit to speak for the patient when the patient cannot speak for himself or herself. In death as in life, the interests of family members are bound together.
If a once-competent patient in a persistent vegetative state has not clearly expressed his or her wishes about the termination of treatment, his or her family is remitted to the substituted-judgment approach. In some such cases, evidence of the patient’s wishes will be clearer than in others. As the evidence becomes less persuasive, considerations other than the patient’s preference may manifest themselves, and at some point along the spectrum, a substituted judgment may shade into a best-interests analysis. With respect to an incompetent patient in a persistent vegetative state, such as Nancy Ellen Jobes, a substituted-judgment analysis may take into account the patient’s present condition, a consideration often associated with a best-interests analysis, and lead to the conclusion that a patient would prefer not to be maintained in his or her present condition. Thus, an objective approach, such as a best-interests analysis, “gets intertwined subtly with the subjective self-determination approach depending upon the circumstances.” Ante at 436 (Handler, J., concurring). The blending of the two concepts is not surprising: patients generally want for themselves that treatment or non-treatment that is in their best interests. Thus, in exercising their substituted judgment, family members ordinarily will make a treatment decision that is in the patient’s best interests.
With some patients, such as newborn infants or adults who have always been incompetent, it is practically impossible for anyone to ascertain their preferences. When there is no evidence of a patient’s preferences, the decisionmaker should *449 focus on the best interests of the patient. It is at this point that we must beware of the slippery slope that could lead to the unwarranted termination of life. Courts are not the right place to make utilitarian judgments about the value of human life. As we said in In re Conroy, “we expressly decline to authorize decisionmaking based on assessments of the personal worth or social utility of another’s life, or the value of that life to others.” 98 N.J. 321, 367 (1985).
The interests of the patient and his or her family will not always be identical, and distinguishing those interests can be difficult. The majority opinion recognizes as much and directs that when disagreement arises within a family, between physicians, or between family and physicians, the parties should go to court. Ante at 427. The more difficult problem arises when the family is not certain about the patient’s wishes and, nonetheless, wants to make “the right decision.” That tormenting dilemma may properly lead a family and physician to consider the best interests of the incompetent patient, a consideration that should begin with the premise that those interests ordinarily lead to the decision to continue life. As previously indicated, however, the focus should be on the patient in his or her present condition. So focused, the decision-maker should consider, among other relevant factors, the patient’s age, level of consciousness, condition, and isolation, together with the restrictions on his or her physical freedom. Also to be considered are the invasiveness of the treatment and the pain experienced by the patient. For some patients, life expectancy will be a relevant consideration, but for patients in a persistent vegetative state, the focus should be on the likelihood of the patient’s return to a cognitive and sapient life. In re Peters, 108 N.J. 365 , 374 (1987); In re Quinlan, 70 N.J. 10, 51 , cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 , 97 S.Ct. 319 , 50 L.Ed.2d 289 (1976).
Although the patient’s preferences are more readily associated with the substituted-judgment approach, those preferences, even if not sufficient to support an exercise of substituted *450 judgment, should be considered in a best-interests analysis. In such an analysis, the decisionmakers should consider the totality of the benefits and burdens of the patient’s life in his or her present condition. Ante at 437 (Handler, J., concurring); In re Conroy, supra, 98 N.J. at 398 (Handler, J., concurring). To some extent, the preceding analysis is reminiscent of the statement in Quinlan, supra, 70 N.J. at 41 , that the State’s interest in preserving life weakens “as the degree of bodily invasion increases and the prognosis dims.”
For Nancy Ellen Jobes, a best-interests analysis supports the conclusion that the life-sustaining treatment being administered to her is merely forestalling her inevitable death. Her tragic condition is graphically described in both the majority opinion, ante at 401-407, and in the concurring opinion of Justice Handler, ante at 441-443. Her family and physicians may derive some comfort from knowing that an objective analysis of the best interests of the patient, like their exercise of substituted judgment, points to the conclusion that the time has come to stop prolonging her treatment.
Termination-of-treatment cases involve not only legal and medical, but also ethical, judgments. As an aid to physicians and families, hospitals and other health-care facilities, such as nursing homes, should give serious consideration to making available the services of ethicists and institutional ethics committees. Hospitals that cannot afford or attract a bio-ethicist could, nonetheless, authorize the establishment of an ethics committee. Such a committee can not only perform an educational and policy-making role, but also act as an advisor to the patient’s family and physician.
The suggestion of such a committee traces its origins to In re Quinlan, supra, 70 N.J. at 49-50 , where the Court contemplated an “ethics committee” to confirm the medical prognosis of the patient and, thereby, to immunize the doctor and the hospital from civil and criminal liability. More recently, the President’s Commission endorsed the formation of ethics com *451 mittees “particularly for decisions that have life-or-death consequences for incompetent patients.” President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 5 (1983) (President’s Commission Report); see also Fletcher, Goals and Process of Ethics Consultation in Health Care, 2 Biolaw, A Legal and Ethical Reporter on Medicine, Health Care and BioEngineering S:37 (1986) (describing recent growth of ethics consultation in health care institutions in United States and Canada); Annas, Ethics Committees in Neonatal Care: Substantive Protection or Procedural Diversion?, 74 Am.J. of Pub. Health 843 (1984) (function of ethics committee is to protect both the institution and the patient by aiding in policy as well as individual decisionmaking). The kind of committee envisioned by the President’s Commission is not a prognosis committee, as contemplated by Quinlan , but a committee that could “advise patients, families, and practitioners who are trying to make informed decisions.” President’s Commission Report at 166. Such an ethics committee would include a diverse membership drawing upon physicians, clergy, ethicists, nurses, attorneys, and members of the general public. Id. Through reviewing decisions for prospective treatment “made by the family of an incapacitated person and his or her practitioner * * * the committee would seek to ensure that the interests of all parties, especially those of the incapacitated person, have been adequately represented, and that the decision reached lies within the range of permissible alternatives.” Id. at 164. As envisioned by the President’s Commission, “[w]hen ethics committees serve as reviewers, they do not supplant the principal decisionmaker for incapacitated persons (that is, families and practitioners) but they do provide for efficient review without regularly incurring the liabilities of judicial review.” President’s Commission Report at 164. In this regard, the Public Advocate has urged that “[ejthics committee review can be more sensitive, prompt, and discreet than either judicial review or the Ombudsman’s investigation. This makes such *452 intervention acceptable to both the family and the medical community, while assuring that decisions involving the life and death of incompetent patients will serve their best interests.” (Citation omitted.) Consistent with that suggestion, the New Jersey Hospital Association’s Ethics Task Force, which was formed by the Council on Professional Practice, “recommends that hospitals seriously consider the establishment of institutional ethics committees * * *.” Ethics Task Force, Council on Professional Practice, New Jersey Hospital Association, Considerations and Recommendations for Institutional Ethics Committees 7 (1986). As perceived by the Task Force, an ethics committee “enhances, not replaces, the all important patient/family/physican relationship and affords support for decisions being made within that triad, relying on the courts as a last resort.” Id.
One illustration of an ethics committee is the infant care review committees that consider the treatment of disabled infants suffering from life-threatening conditions. The Department of Health and Human Services has published guidelines in which it “strongly encourages hospitals that provide care to infants, especially those with tertiary level neonatal care units, to establish Infant Care Review Committees * * *.” 50 Fed. Reg. 14894 . Among other things, the infant care review committees may counsel physicians and the infant’s family concerning the withholding or withdrawing of life-sustaining treatment. Id. at 14895-96.
Another illustration is the patient care advisory committees that have been authorized by the Maryland Legislature effective as of July 1, 1987. Md. Health-General Code Ann. §§ 19-870 to -374 (Supp.1986). On request of a “petitioner,” a term that includes, among others, a physician and a family member, § 19-370(d), an advisory committee “shall offer advice in cases involving individuals with life-threatening conditions.” § 19-373(a). Thus, one state has already enacted legislation recognizing the role of ethics committees in decisions involving the termination of treatment.
*453 Eecourse to an ethics committee need not be mandatory, and the decision to seek ethical guidance is best left to the judgment of the patient or someone who can speak on his or her behalf, such as a family member or physician. While leaving the decision to him or her, an ethics committee could provide guidance and support to the ultimate decisionmaker. Creation and implementation of ethics committees raises questions concerning the structure, function, and duties of the committee, as well as the confidentiality of its records and immunity from suit of its members. As the court returns the decisionmaking authority to patients’ families and physicians, the answers to those questions merit the consideration of health care officials and the Legislature.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9702261. Public record. Not legal advice.