State, Department of Human Services v. Northern

DROWOTA, Judge,

concurring.

While I am in complete agreement with the opinion of the Court, I believe it worthwhile to try to elucidate and emphasize the central issue around which this entire litigation revolves: Is Miss Mary Northern at this time mentally and emotionally competent to decide whether or not to permit amputation of her gangrenous feet? There appears to be some confusion, reflected in some of the arguments advanced to us, as to what this issue means and how this Court has treated it in the instant case. The arguments of both the guardian ad litem and the amicus curiae at times suggest that the crux of the matter is the legal question of whether an individual possesses the right to accept or reject medical treatment in a life-threatening situation, sometimes popularly referred to as a “right to die.” In this opinion, I would like to make it clear that this Court has little or no quarrel with such a legal principle, and that the crux of this case is the issue of Miss Northern’s competence, gauged to the best of the Court’s ability from the facts presented to us, to exercise her legal right to choose.

Many features remove this case from the realm of the ordinary, but one of the most striking is the absence of the usual presentation to the Court of diametrically opposite points of view. This is not a true adversary proceeding, as are most cases. All the parties and participants in the suit, as well as the Court, are acting in a good faith attempt to serve the best interest of Miss Northern. Due to the life-threatening character of Miss Northern’s problem, her unwillingness to recognize it and her reluctance to discuss it, the publicity attending the case, and the varying vantage points of those concerned, there are naturally differing opinions on what is in her best interests. Medically, there is little question that she is or soon will be in imminent danger of death from the gangrenous condition of her feet. The legal question to be answered is what, if anything, should be done about this situation. The answer to this question, of course, depends on both the particular facts of the case and the principles which the Court applies to them. The difficulties in this case arise because of the delicacy and closeness of the factual question of Miss Northern’s competence in this very unusual situation, while much of the reaction to the case has dealt with whether or how far the Court is recognizing the principle that a person should not be forced to undergo medical treatment against his or her will. The decision in this case does not conflict with that principle.

We have been cited to authority stating that a person has a right to refuse medical treatment even if death will result, and even if his choice would be considered foolish by many people. See Application of President & Directors of Georgetown College, Inc., 118 U.S.App.D.C. 80 , 331 F.2d 1010, 1017 (1964) (dissenting opinion). The relatively few reported cases in this area are discussed at length in two law review *213 articles to which we have been referred. Byrn, Compulsory Lifesaving Treatment for the Competent Adult, 44 Fordham L.Rev. 1 (1975); Cantor, A Patient's Decision to Decline Lifesaving Medical Treatment: Bodily Integrity versus the Preservation of Life, 26 Rutgers L.Rev. 228 (1973). An example of the cases discussed is In re Yetter, 62 Pa.D. & C.2d 619 (C.P., Northampton County 1973). There, the court refused to order diagnostic and corrective surgery for an allegedly incompetent woman who did not want it. The woman had developed delusional reasons for refusing surgery, but the court based its decision on findings that her refusal of the same treatment at an earlier time had been made while she was competent and indicated her true desire, and that her subsequent delusions were not her primary reason for rejecting treatment. Similarly, in In re Estate of Brooks, 32 Ill.2d 361 , 205 N.E.2d 435 (1965), the Court held it proper to refuse to order an emergency blood transfusion for a woman who, though disoriented when admitted to the hospital, in the past had repeatedly stated her religious opposition to receiving such treatment. Other decisions upholding the individual’s right to refuse treatment against various asserted state interests in preserving his life are discussed in the two articles.

The question of when a competent individual may refuse lifesaving medical treatment has not been addressed in this State, nor has it now been decided in this case. Since the question has received so much undue attention with regard to this case, however, I wish to state that I am generally in agreement with the principles espoused in the authorities mentioned above, and I believe that the other members of this Court are as well. Yet these principles are not at issue in the instant case, in which the controlling question is one of competence. The applicable principle here, recognized even in authority vigorously defending the right to choose in most situations, is that “[t]he state, as parens patriae, has a special duty to help the person who is mentally incompetent to make such vital decisions as whether to submit to necessary treatment.” Byrn, supra, at 24. The initial assumption must be that the patient desires lifesaving treatment, unless that assumption is contradicted by previous statements competently made as in Yetter and Brooks. In cases of incompetence to choose, the court’s function is “to make a good faith finding with respect to what the desires of the patient would have been had he been conscious and competent.” Byrn, supra, at 25.

In the instant case, a statute guides the courts in proceeding properly in such cases. The two basic safeguards against unconstitutional use of T.C.A. § 14-2306(a) are that it cannot be invoked absent proof to the court “that the elderly person is in imminent danger of death . . . and lacks capacity to consent to protective services.” These decisions are necessarily made on an ad hoc basis, case by case. Although the statute does not spell it out, it is clear that valid decisions on these two issues can only be made, and will only be upheld, if they are based on information as complete as time permits to be collected. This will generally require evidence such as medical opinions, psychiatric examination results, lay witness testimony, and any testimony it is possible to obtain from the patient. If, based on such evidence, there is a finding by the court that the patient is in imminent danger of death and lacks capacity to consent, the court must proceed to make its good faith judgment as to what should be done.

In the instant case, the Court found that Miss Northern does not have the capacity to decide whether her feet should or should not be amputated. This finding is not based on any belief by this Court that a competent adult should not be permitted to reject lifesaving treatment. It is not, as has been argued to us, based on any idea of this Court that any person who refuses treatment we subjectively think a “normal” or “rational” person would choose is “incompetent” merely because of that refusal. It is based on the Court’s finding that Miss Northern is unable or unwilling to comprehend even dimly certain very basic facts, without which no one, whether elderly lady, doctor, or judge, would be competent to make such a decision. These facts include *214 the appearance of her feet, which are disfigured, coal black, crusty, cracking, oozing, and rancid. Yet, Miss Northern looks at them and insists that nothing is wrong. Also included is the fact that her doctors are of the opinion that her life is in danger, yet she has expressed no understanding of either the gravity or the consequences of her medical condition. Again, this Court respects Miss Northern’s right to disagree with medical opinions and advice. Again, if this Court in good faith could find that she perceived as facts that her feet do look and smell as they do, and that her doctors are telling her that she needs surgery to save her life, we would not interfere with whatever decision she made regardless of how much it conflicted with the substance of her medical advice or with what we ourselves might have chosen. But from our honest evaluation of the facts and evidence of this case, we have been forced to conclude that Miss Northern does not comprehend such basic facts and hence is currently incompetent to decide this particular question. While this finding was made more difficult by Miss Northern’s apparent ability to grasp facts not related to the condition of her feet, it is nonetheless correct.

Since Miss Northern was not competent to decide the question of amputation, it fell to the Chancellor and then to this Court to do so. Again, the question for me is what would Miss Northern decide if she understood the facts. The presumption with any person must be that he would want surgery that would increase the chance of life from 5-10% to 50%, unless some statement made or attitude held while the patient was competent contradicts the presumption. No such contradiction exists in Miss Northern’s case. Further, the presumption is strengthened, if anything, by Miss Northern’s assertions that she does not want to die. Medically, her feet are dead and lost to her whether or not they are amputated. Psychotic effects are likely if surgery is done, but are quite possible even if Miss Northern survives and loses her feet without surgery. Her prognosis is poor either way, but there is a substantially better chance of life if the surgery is performed. In these circumstances, this Court simply could not find that Miss Northern, if she had a basic understanding of the situation, would not choose the substantially greater chance of life that surgery offers. Our decision has been made accordingly, but we have modified and narrowed the Chancellor’s order so that consent may only be given by one responsible individual and only when Miss Northern’s doctors certify that surgery is necessary immediately to save her life. This is our best approximation of what a competent Mary Northern would want under these circumstances.

To make a final point, I return to the legal principle that a competent adult is free to accept or reject lifesaving medical treatment. The point is that, while I have said that I and the other members of this Court fully support that view, it is by no means universally adhered to. The articles by Byrn and Cantor, supra, recognize that some courts have held against such a principle in various situations. Indeed, our own State Supreme Court may well be one of these. In a so-called “snake-handling” case, this Court held that, while provisions must be made to protect onlookers and children, handling of poisonous snakes pursuant to religious beliefs could not constitutionally be banned as a nuisance or to protect the lives and health of the handlers themselves. State ex rel. Swann v. Pack, unreported opinion Tenn.Ct.App., Eastern Section, October 25, 1974. Our Supreme Court, however, unanimously reversed this holding and declared that both snake-handling and the drinking of strychnine could be enjoined constitutionally by the State. Finding that the State has a “compelling interest” in a “strong, healthy, robust, taxpaying citizenry,” the Court said “Yes, the state has a right to protect a person from himself and to demand that he protect his own life.” State ex rel. Swann v. Pack, 527 S.W.2d 99, 113 (Tenn.1975). While I do not agree with this statement, much less with any attempt to extend it beyond the facts of Pack , I point out the possibility that this legal rationale could be used by another court to “protect” Mary Northern against herself by *215 imposing surgery on her against her will even were she competent to make her own decision.

The instant case has been a difficult one. My only purpose in writing this concurring opinion is to emphasize that the difficulty lay not in legal principles and the constitutional rights of competent citizens, but in the factual question of whether or not Mary Northern is competent to exercise the right to choose in this case. I have also tried to emphasize that this Court bases its negative answer to that question not on Miss Northern’s failure to “conform” or to do what we or the community might think is “sensible,” but on her inability to comprehend basic concrete facts relating to her condition. No one lacking such comprehension of facts essential to an informed decision would be competent to make that decision. Though Miss Northern’s case is, to me, undoubtedly close to the constitutional limits of the state’s power over an individual, it is within those limits. It is clear to me that the Court has correctly and constitutionally found Miss Northern incompetent to decide the question of amputation of her feet, and has correctly resolved that question in her best interests to the best of its ability.