Respondents Brief — Cruzan Ex Rel. Cruzan v. Director, Missouri Department of Health

Suereme Court, U.S.

~} | YiLeED

OCTOBER TERM, 1989

NANCY BETH CRUZAN, by her parents and co-guardians,

LESTER L. and JOYCE CRUZAN,

Petitioners,

vs.

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH

and ADMINISTRATOR OF THE MISSOURI

REHABILITATION CENTER AT

MT. VERNON,

Respondents,

VS.

THAD C. McCANSE, Guardian ad litem,

Respondent.

On Writ or CERTIORARI TO THE SUPREME COURT

OF MISSOURI

RESPONDENT GUARDIAN AD LITEM’S BRIEF

THap C. McCanse*

Davip B. Mouton

FLANIGAN, McCanse & LASLEY

Attorneys at Law

P. O. Box 272

Carthage, Missouri 64836

— Telephone 417/358-2127

*Counsel of Record

Counsel for Respondent Guardian ad litem

October 5, 1989

E. L. MenpenHatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

—— ee

BEST AVAILABLE COPY oritt

QUESTIONS PRESENTED

1. Does an incompetent person whose life is being

maintained by medically supplied artificial means have

constitutional rights of privacy, liberty and equal pro-

tection of the law to refuse further treatment which are

superior to a state’s general interest in preservation of life?

2. If the incompetent has such rights, under what

circumstances may they be exercised by a third person?

II

TABLE OF CONTENTS

QUESTIONS PRESENTED ....W.2....2.--2-2--.---cscc-cecececceeeeeees

TABLE OF AUTHORITIES. ............-......----.-0ccc:cscsseeeeeseees

SUMMARY OF ARGUMENT W002. eee eee

ARGUMENT—

I. An Adult’s Right to Refuse Medical Treat-

ITT.

ment Is a Liberty Interest Under the Due

Process Clause and Is a Fundamental In-

terest Traditionally Protected by Our Society

Which Is Beyond the Power of the State to

Deny 7 . siieinieenaadapestiniiaeerancneen

As a Competent Adult Has a Constitution-

ally Protected Right to Refuse Medical Treat-

ment, the Missouri Supreme Court in Refus-

ing to Allow the Right to Refuse Treatment

to Extend to an Incompetent Denies Incom-

petents Equal Protection of Law in Violation

of the Fourteenth Amendment ........................

The Missouri Supreme Court Erred in Hold-

ing That There Was Not Sufficient Evidence

of Nancy Cruzan’s Refusal of Life-Prolonging

Medical Treatment, in Not Allowing Her

Family to Exercise Substituted Judgment in

Making a Decision to Withdraw the Feeding

Tube, and in Failing to Find That It Was

in Nancy Cruzan’s Best Interest That the

Feeding Tube Be Removed ..............................

A. Self-Determination —.......200...20...2000.2002-2...

B. Substituted Judgment -................................

Ee

CONCLUSION

III

IV. Under the Facts of This Case, the State’s In-

terest in Preservation of Life Is Not Superior

to Nancy’s Right to Discontinue Further

Treatment. The Missouri Court Erred in

Holding That the State Has the Paramount

Right to Demand That the Artificial Life Sup-

port System Be Maintained

RRR Ree eee eee eee neeeee

ee rer eee TTT TTT eT TT eee eee

IV

TABLE OF AUTHORITIES

Cases

Barber v. Superior Court, 147 Cal. App. 3rd 1006,

BOD Came, Tate. GB CIID catccnccressnstensstccttncntncriicsstccsrcenmene 13

Bartling v. Superior Court, 163 Cal. App. 3rd 186, 209

eS OF ee 2

Bouvia v. The Superior Court of Los Angeles County,

179 Cal. App. 3rd 1127, 225 Cal. Rptr. 297 (1986)

Brophy v. New England Sinai Hospital, Inc., 497 N.E.2d

I GE 10, 25, 29

Bullock v. Carter, 405 U.S. 134 (1972) -..........------------------- 11

Corbett v. D’Alessandro, 487 So.2d 369 (Fla. 1986) ...... 21

Delio v. Westchester County Medical Center, 129 A.D.

2d 1, SIG N.V.S.2d C77 (1GBT) .....-..-.---0cneeceoeenesseeeeeees 29

Eichner v. Dillon, 73 A.D.2d 431, 246 N.Y.S.2d 517,

420 N.E.2d 64 (N.Y. App. Div. 1980) ................... 10, 15

Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.

DR BED CIID occrecenctrssenccnenccessttinceninssinnensiniscameimiensensin 11

Foody v. Manchester Memorial Hospital, 482 A.2d 713

‘(e ___ | OEE 29

Gray v. Romeo, 697 F.Supp. 580 (D.C.R.I. 1988) ....7, 13, 21,

28, 29

Griswold v. Connecticut, 381 U.S. 479 (1965) ................ 10

In the Matter of the Conservatorship of Torres, 357

ee 20, 29

In re Colyer, 660 P.2d 738 (Wash. 1983) ........7, 9, 21, 29

In re Conroy, 486 A.2d 1209 (Sup.Ct., N.J. 1985) -......... 21

In re Conroy, 486 A.2d 1222 (NJ. 1985) -.................. 13

In re Drabick, 245 Cal. Rptr. 840 (1988) ....18, 19, 23, 29

In re Gardner, 534 A.2d 947 (Me. 1987) ........ 13, 15, 21, 29

Vv

In re Hamlin, 102 Wash. 2d 817, 689 P.2d 1372

TE -sabseeresebiticleceshaialeipsaitrinmeiidediisislinbcisnteitatidebadadeniaial 9, 20

In re Jobes, 529 A.2d 434 (NJ. 1987) ........ 13, 15, 18, 28

In re Link, 713 S.W.2d 487 (Mo. banc 1986) ................ 21, 22

In re M--, 446 S.W.2d 508 (Mo. App. 1969) 0000000. 22

In re O’Connor, 531 N.E.2d 607 (N.Y. 1988) 00000... 12

In re Quinlan, 355 A.2d 647 (NJ. 1976) 00... 7,17, 21

John F. Kennedy Hospital v. Bludworth, 452 So.2d 921

RRR nec ae ee ee ee eo OE 29

Massachusetts Board of Retirement v. Murgia, 427 U.S.

See SITE satclisiinclscbibcainanacaiabssiethsinimanedancadesimseiinastiinivantuaiteddaiass 10

McConnell v. Beverly Enterprises, 209 Conn. 692

RE. sbiidtancninietinpsintenoachtenileniiensiabohiesiabistalotlebiobladlossitcdiubaleteass 18

Michael H. v. Gerald D., 109 S.Ct. 2333 (1989) ........ 6,7

Olmstead v. United States, 277 U.S. 438 (1928) ....... 6

Rasmussen v. Fleming, 741 P.2d 674 (Ariz. banc

GED enenccensssneniierecesnsencdenesoninsatencetanepaanecesesneness 7, 13, 20, 29

Rochin v. California, 342 U.S. 165 (1952) 000... 6

Roe v. Wade, 410 U.S. 113 (1973) 22 coececeeeeee 10

San Antonio Independent School District v. Rodriquez,

411 US. 1, 93 S.Ct. 1278, 36 L.Ed. 2d 16 (1973) ........... 11

Satz v. Perlmutter, 362 So.2d 359 (Dist. Ct. App. 1978) 21

Schmerber v. California, 384 U.S. 757 (1966) ........... 6

Shapiro v. Thompson, 394 U.S. 618 (1969) 2000... 11

Shelley v. Kraemer, 334 U.S. 1 (1948) 2000... 9

Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

Sa, MEIN = Secenniceiciicseshudioniveateistiinthetiiioeciasisantsiinenenscaninssliluiion 6,11

Superintendent of Belchertown State School v. Saike-

wicz, 370 N.E.2d 417 (Mass. 1977) ............ 7, 9, 13, 21, 23

Thompson v. Oklahoma, ........ a , 108 S.Ct. 2687

SENT seiliGccsiccdiiesssptbistalddonaspnnninnaannniidinnssaninaananiassiiabiidinionssiine 4

vI

Union Pacific Railway Company v. Botsford, 11 S.Ct.

I TOD. ctassenteseserenisneinenesninnnnensnantnsianennstiinornsansiiain 6

U.S. v. Solomon, et al., 563 F.2d 1121 (4th Cir. 1977) . 27

Williams v. Rhodes, 393 U.S. 23 (1968) ............................ 11

Winston v. Lee, 470 U.S. 753 (1985) ...............-...------- 6

Constitutional Provisions

United States Constitution, Fourteenth Amend-

Do oo ce csehelchiaealiepesadeaiipbaneniaiceediantnpcieneconnsinanaiiindl passim

Statutes

Cal. Probate Code, Section 2355(a) -...............------------------ 19

"| § $$ i 19

SUMMARY OF ARGUMENT

I

A competent adult has a clearly established common

law right to either receive or refuse medical treatment.

Under the doctrine of informed consent, if one can con-

sent to treatment, one can also refuse it. As this is a

decision of the individual, a state cannot force a person

to continue with unwanted medical treatment where, as

here, no innocent third parties are involved. This prop-

osition is deeply embedded in the traditions of this

country.

Although the right to accept or refuse medical treat-

ment is not mentioned in the Constitution of the United

States, by logical extension of this court’s holdings, the

right becomes constitutional in nature as a liberty right

under the Fourteenth Amendment or a right of privacy

concerning traditional personal values and matters. Also,

this court has protected persons from bodily invasions

by the state against the will of the individual.

II

As a competent adult has a constitutional right to

refuse medical treatment where no innocent third party

is concerned, there is no rational reason for holding that

an incompetent person loses that constitutional right by

reason of the incompetency. The holding of the Missouri

Supreme Court in this case that a refusal of medical

treatment is a personal decision and, therefore, no one

can exercise it on the incompetent’s behalf is illogical

and indefensible.

On the face of it, the Missouri Supreme Court deci-

sion denies the incompetent equal protection of the law.

In all cases where the incompetent has not made a for-

mal declaration, under the Cruzan decision, there can be

no balancing between the incompetent’s rights and the

2

state’s interest in preserving life. As neither the incom-

petent nor anyone else can exercise the right of refusal,

the state always prevails.

In holding this, the Supreme Court of Missouri has

mafriiated that the incompetent becomes a second-class

citizen in spite of a fundamental constitutional right.

The people of this country cannot be divided into two

classes where fundamental constitutional rights are con-

cerned. No legitimate government purpose or objective

is served by this holding. If a competent person can

refuse life saving or life prolonging medical treatment,

then an incompetent must have the same right.

III

As Nancy Cruzan is incompetent, her constitutional

right to refuse medical treatment necessarily must be

exercised by someone on her behalf under appropriate

standards or guidelines. The appropriate methods are:

evidence of self-determination, substituted judgment or

a determination of the incompetent’s best interests.

The undisputed evidence in this case is that Nancy

Cruzan has severe and permanent damage to her brain

and is physically totally and permanently disabled and

totally and permanently dependent on others for all her

care. She is incontinent of bowel and bladder. Essen-

tially, she has no mind or ability to interact with others

or with her environment. If she feels anything at all,

it is discomfort. She could live in this condition for

perhaps as long as thirty years. Before the accident,

she was described by those who knew her best as inde-

pendent, active, fun-loving, and outgoing. These facts,

together with her prior statements to her friend and a

sister clearly support a finding that she would not choose

to be maintained indefinitely in her present condition.

3

Under all the evidence there has been a self-determina-

tion by Nancy to refuse further treatment.

Even if there were not such clear and convincing

evidence, her family, admittedly caring and deeply con-

cerned for her welfare, are the ones who should make

the substituted judgment for her. Their decision to see

an end of machine-supplied nutrition and hydration was

made long after all hope of any recovery or improve-

ment was gone, and after a careful study cf the entire

situation.

In addition, the court-appointed independent guard-

ians ad litem and attorneys for Nancy Cruzan, have

concluded that her interests would be served best by

allowing the feeding tube to be removed. There can

be no overriding state interest in the preservation of a

life with little, if any, humanity or dignity merely be-

cause she does not appear to be in deep pain. This life

is a burden without a corresponding benefit. She can-

not walk, talk, see, communicate, experience human emo-

tions and sensations or recognize those she loved best.

It is not necessary to require a finding of intense pain

in order to determine that no interest of hers is being

served by the state requiring her to continue indefinitely

as the biological remains of a human being.

Under any of these tests, the parents and guardians

of Nancy Cruzan were entitled to the relief they re-

quested. The Missouri Supreme Court was in error in

reversing the Trial Court’s decision.

IV

The state’s interest in the preservation of life does

not override Nancy Cruzan’s fundamental right to re-

fuse medical treatment. The state’s interest in the pres-

ervation of life must always be balanced with conflicting

4

interests of the individual. But in the case of this in-

competent, the Missouri Supreme Court’s decision is un-

balanced.

The court refused to consider Nancy’s quality of life

in arriving at its decision holding that the state’s interest

in life is unqualified. But quality of life is always an

important factor when an individual makes a medical de-

cision to accept or refuse treatment. The court’s refusal

to consider quality of life from the individual’s point of

view was clear error.

Another inherent flaw in the Missouri Supreme Court

decision is that the majority did not limit the decision to

the individual involved, but instead took into account

the impact of a decision on incompetent persons who

may wish to live despite a severely diminished quality of

life. That approach begs the question, for if there is

evidence an incompetent would choose to live, that per-

sonal choice should be upheld. There was no substantial

evidence that Nancy would choose to live. The court

was in error in basing its decision on speculation about

a set of facts not before it.

This approach of the Missouri Supreme Court has

made Nancy Cruzan a prisoner of medical technology. As

that technology improves, her biological life may be ex-

tended indefinitely. It has become a form of involuntary

servitude. She did not consent to the surgical insertion

of the tube in the first place, and does not consent to

this life sentence now. The state is making the medical

decisions, not the individual and not the family.

No compelling state interest has been shown in this

case to overcome-the facts presented here of the_indi-

vidual’s right to choose-to be allowed to die. The decision

of the Missouri Supreme Court is basically flawed and

should be reversed.

An Adult’s Right to Refuse Medical Treatment Is

a Liberty Interest Under the Due Process Clause and

Is a Fundamental Interest Traditionally Protected

by Our Society Which Is Beyond the Power of the

State to Deny.

The Missouri Supreme Court recognized a common

law right of individual autonomy over decisions relating

to an individual’s health and welfare. Pet. App. A20.’

It then concluded that if there was a right under the

United States Constitution, it must be a right to privacy

under Roe v. Wade, Pet. App. A22. But, as the United

States Supreme Court has not held specifically that the

right of privacy permits a patient or her guardian to

direct the withdrawal of food and water, it refused to use

Roe v. Wace as authority to do so. Pet. App. A23. It

also declined to decide any issue relating to the authority

of competent persons to suspend life-sustaining treat-

ment in the face of terminal illness or otherwise. Pet.

App. A38.

In order to determine the extent of the rights of an

incompetent, it must be first decided whether a compe-

tent adult has a right based on the United States Con-

stitution to refuse unwanted medical treatment. In

making an analysis of the extent of ‘he constitutional

liberty interest, it must be determined whether or not

a refusal of medical treatment is an interest traditionally

1. The Cruzan decision of the Missouri Supreme Court is

reported at 760 S.W.2d 408 end is set forth in petitioner’s ap-

pendix to the petition for a Writ of Certiorari. References to

the appendix are identified as “Pet. App.”

6

protected by our society. See Michael H. v. Gerald D.,

109 S.Ct. 2333 (1989).

In 1891, this court in Union Pacific Railway Company

v. Botsford, 11 S.Ct. 1000, stated:

“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.” Id. at 1001.

Justice Brandeis used similar terminology in de-

scribing the fundamental right of liberty protected by

the Due Process Clause, namely “the right to be let alone—

the most comprehensive of rights and the right most

valued by civilized men.” Olmstead v. United States,

277 U.S. 438, 478 (1928) (Brandeis J. dissenting).

Freedom from unconsented invasion of the person

has been upheld by this court in other settings. In Skinner

v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), the

court invalidated on equal protection grounds the steriliza-

tion of habitual criminals. In Winston v. Lee, 470 U.S.

753 (1985), it was held that a criminal defendant could

not be compelled to submit to surgery to remove a bullet

on the ground “that such an intrusion invades the in-

dividual’s sense of personal privacy and security. In

Schmerber v. California, 384 U.S. 757 (1966), this court

stated that the integrity of an individual’s person is a

cherished value of our society. Id. at 772. In Rochin v.

California, 342 U.S. 165 (1952) it prohibited forced stom-

ach pumping to acquire evidence in a criminal case as

offensive to human dignity under the Due Process Clause

of the Fourteenth Amendment.

7

State Appellate Courts specifically have found a

federal constitutional right to refuse medical treatment

of a life-prolonging nature. See, eg., Rasmussen v.

Fleming, 741 P.2d 674 (Ariz. banc 1987); Bouvia v. The

Superior Court of Los Angeles County, 179 Cal. App.

3rd 1127, 225 Cal. Rptr. 297; In re Colyer, 660 P.2d 738

(Wash. 1983); In re Quinlan, 355 A.2d 647 (N.J. 1976);

Superintendent of Belchertown State School v. Saikewicz,

370 N.E.2d 417 (Mass. 1977). See also Gray v. Romeo,

697 F.Supp. 580 (D.C.R.I. 1988). In Bouvia the court

described the right to refuse medical treatment as the

right of self-determination or a .principle of personal

autonomy properly grounded in the liberties protected

by the Fourteenth Amendment’s Due Process Clause.

Also, in Gray v. Romeo it was held that the right to

tefuse medical treatment, whether described as the prin-

ciple of personal autonomy, the right of self-determina-

tion or the right of property, is properly grounded in

the liberties protected by the Fourteenth Amendment’s

Due Process Clause and as a right grounded in the no-

tion of an individual’s dignity and interest in bodily in-

tegrity.

The deeply personal decision to accept or refuse

medical treatment affecting one’s own body has been

recognized as a part of the tradition of our society for

almost a hundred years and, thus, under an extension

of this court’s holdings in a number of cases cited above

becomes a constitutional right. See Michael H. v. Gerald

D., 109 S.Ct. 2333 (1989).

8

II

As a Competent Adult Has a Constitutionally Pro-

tected Right to Refuse Medical Treatment, the Mis-

souri Supreme Court in Refusing to Allow the Right

to Refuse Treatment to Extend to an Incompetent

Denies Incompetents Equal Protection of Law in Vio-

lation of the Fourteenth Amendment.

In its analysis of this case, the Missouri Supreme

Court reasoned that a decision as to medical treatment

must be informed and that three elements must be

present: the patient must have capacity to reason and

make judgments, the decision must be made voluntarily

and without coercion, and the patient must have a clear

understanding of the risks and benefits of the proposed

treatment alternatives or nontreatment along with a full

understanding of the nature of the disease and the prog-

nosis. Pet. App. A21.

The court held that a decision to refuse treatment

should be as informed as the decision to accept treat-

ment.? Pet. App. A37. It then went on to hold that

the common law right to refuse treatment is founded

in personal autonomy and could not be exercised by a

third party “absent formalities” and, therefore, the co-

guardians did not have authority to order the withdrawal

of hydration and nutrition to Nancy. Pet. App. A41-42.

What this means is that an incompetent merely by rea-

son of the incompetency, loses the right of refusal of

medical treatment that a competent person can exercise.

2. In this case the consent for the insertion of the tube was

given by her then husband, Paul Davis. Pet. Ex. 10, Tr. 423.

Nancy then, as now, was unable to communicate. The trial

transcript is part of tre record transmitted to this Court by the

Missouri Supreme Court. References to it are identified by the

abbreviation “Tr.”

9

Two classes of personal rights are thereby established,

one for competents and one for incompetents.

As a competent adult’s right of refusal of medical

treatment is constitutional in nature, as well as based

on common law, the Missouri Supreme Court in denying

this right to Nancy Cruzan simply by reason of her in-

competency, denies her the equal protection of the law.’

In the case of a patient in a persistent vegetative state

(PVS) such as Nancy, obviously her rights must be ex-

ercised by another or they are lost. This Court recog-

nized this in Thompson v. Oklahoma, ........ a , 108

S.Ct. 2687 (1988) (Plurality Opinion),

“The law must often adjust the manner in which it

affords rights to those whose status renders them

unable to exercise choice freely and rationally. Chil-

dren, the insane, and those who are irreversibly ill

with loss of brain function, for instance, all retain

‘rights,’ to be sure, but often such rights are only

meaningful as they are exercised by agents acting

with the best interests of their principal in mind.”

Id. at 2693, n.23.

In Superintendent of Belchertown State School v.

Saikewicz, 370 N.E.2d 417 (SJC, Mass. 1977), the court

held that, based on principles of equality and respect

for all individuals, the right to refuse medical treatment

must extend to an incompetent as well as a competent

patient because the value of human dignity extends to

both. An incompetent individual does not lose the right

to have life-sustaining treatment withheld by virtue of

his or her incompetency, In re Hamlin, 689 P.2d 1372

(Wash. 1984); and In re Colyer, 660 P.2d 738 (1983).

3. The action of state courts in their official capacities is

regarded as action of the state within the meaning of the Four-

teenth Amendment. Shelley v. Kraemer, 334 U.S. 1, 14 (1948).

10

“It does not advance the interest of the state or the

ward to treat the ward as a person of lesser status

or dignity of others. To protect the incompetent

person within its power, the State must recognize

the dignity of worth of such a person and afford to

that person the same panoply of rights and choices

it recognizes in competent persons.”” Brophy v. New

England Sinai Hospital, Inc., 497 N.E.2d 626 (Mass.

1986), quoting from Saikewicz, supra.

The reason for this holding is stated forcefully in

Eichner v. Dillon, 73 A.D.2d 431, 420 N.E.2d 64:

“(Bly standards of logic, morality, and medicine,

the terminally ill shall be treated equally, whether

competent or incompetent. Can it be doubted that

the ‘value of human dignity extends to both?’

[A]ny state scheme which irrationally denies to the

terminally ill incompetent that which it grants to

the terminally ill competent patient is plainly subject

to constitutional attack.” 73 A.D.2d at 464-75.

To determine whether or not a classification denies

equal protection of law under the Fourteenth Amendment,

the purpose of the classification must be examined. If

the classification impermissibly interferes with the ex-

ercise of a fundamental right or operates to the peculiar

disadvantage of a suspect class, the test is strict scrutiny.

Massachusetts Board of Retirement v. Murgia, 427 US.

307 (1976). Fundamental rights are those of a uniquely

personal nature, such as the right to marital privacy,

Griswold v. Connecticut, 381 U.S. 479 (1965), and to an

abortion, Roe v. Wade, 410 U.S. 113 (1973).* Other ex-

4. There is no innocent third party in this case. The

vexing questions of when a fetus becomes a whole persor or

when the state’s interests in protecting potential human life - e-

comes compelling are not involved here.

11

amples include the right to vote discussed in Bullock v.

Carter, 405 U.S. 134 (1972); the right of interstate travel,

Shapiro v. Thompson, 394 U.S. 618 (1969); first amend-

ment rights, Williams v. Rhodes, 393 U.S. 23 (1968);

and the right to procreate, Skinner v. Oklahoma ex rel.

Williamson, 316 U.S. 535 (1942).

The right to accept or refuse medical treatment is

just as much of a fundamental, uniquely personal right

as those just mentioned. Yet, the court’s holding that as

it was a personal right, it could not be exercised by others

is completely inconsistent with equal protection of law

under the Fourteenth Amendment.

An equal protection analysis in this case requires

strict scrutiny of the classification of competents and in-

competents to see whether it is necessary to the achieve-

ment of a compelling state interest. Eisenstadt v. Baird,

405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed. 2d 349 (1972). As

the right to refuse medical treatment is implicitly guar-

anteed by the Constitution, the state has the burden of

justifying the classification. See San Antonio Independent

School District v. Rodriquez, 411 US. 1, 93 S.Ct. 1278,

36 L.Ed. 2d 16 (1973). This burden was not met in the

Cruzan case.

The Supreme Court of Missouri conceded that the only

compelling state interest in this case is the preservation

of life. Pet. App. A25. It stated this as an interest in

prolonging the life of an individual and an interest in the

sanctity of life itself. But, of course, that interest would

apply equally to a competent person.

The decision turned out to be self-contradictory. The

court found a state policy favoring life in the Uniform

5. The court seemed to permit the exercise of the right if

there was clear and convincing, inherently reliable evidence. Pet.

App. Aé4l.

12

Rights of the Terminally Ill Act (URTIA) which permits

a competent person to execute a formal document allow-

ing that person to refuse death-prolonging medical treat-

ment in the event of a terminal illness and in the event

that the person became incompetent and unable to re-

fuse such treatment as a result. This simply means that

a competent person can choose to execute a document

permitting the withholding or withdrawal of artificial

life-support measures (not including nutrition and hydra-

tion) and thereby hasten death. But the right to withhold

artificial life-support measures is denied to an incompetent.

The court specifically declined to decide the issue

whether a competent person could suspend life-sustaining

treatment in the face of terminal illness or otherwise.

Pet. App. A38. By leaving the issue open it seems to be

implying that it might decree that a competent adult

might have to receive life-sustaining medical treatment

if the state says so. To even imply that if you are injured

in some respect, you have to go to a doctor or a hospital

whether you want to or not is a long step down the road

to tyranny. Certainly, it is inconsistent with the living

will act provision that a person can have death prolonging

medical treatment withheld or withdrawn. Again, the

decision is unstable.

Other courts have held uniformly that a competent

person has a right to refuse life-prolonging treatment,

even if the decision means the person might or will die.

Among these decisions are In re O’Connor, 531 N.E.2d

607 (N.Y. 1988) ;* Bouvia v. Superior Court, 179 Cal. App.

- 6. Relief was denied the incompent in the O’Connor case.

But the court pointed out specifically that it was not holding

that an incompetent cannot forego the use of artificial life-

sustaining machines offering no hope of improvement or hope

of cure.

13

3rd 1127, 225 Cal. Rptr. 297 (1986); and Barber v. Supe-

rior Court, 147 Cal. App. 3rd 1006, 195 Cal. Rptr. 44

(1983); In re Gardner, 534 A.2d 947 (Me. 1987); In re

Conroy, 486 A.2d 1222 (N.J. 1985); and Gray v. Romeo,

697 F.Supp. 580 (D.R.I. 1988). It would seem that the

only valid reason for treating incompetents differently

than competents would be a concern for those unable

to protect themselves. But in this case, as in others,

independent guardians ad litem were appointed whose

responsibility was to protect the interests of the ward.

Superintendent of Belchertown State School v. Saikewicz,

370 N.E.2d 417 (Mass. 1977); Rasmussen v. Fleming, 741

P.2d 674 (Ariz. 1987); In re Gardner, 534 A.2d 947 (Me.

1987); In re Jobes, 529 A.2d 434 (N.J. 1987); and Gray

v. Romeo, 697 F.Supp. 580 (D.R.I. 1988). Thus, incom-

petents’ interests may be fully protected without denying

them fundamental rights. No compelling state interest

is achieved by putting incompetents in a separate class

in this situation.

In view of the foregoing, the classification by the

Missouri: Supreme Court between rights of competents

and incompetents in regard to refusal of medical treat-

ment will not stand strict scrutiny, nor is it based on

any rational state purpose.

14

III

The Missouri Supreme Court Erred in Holding

That There Was Not Sufficient Evidence of Nancy

Cruzan’s Refusal of Life-Prolonging Medical Treat-

ment, in Not Allowing Her Family to Exercise Sub-

stituted Judgment in Making a Decision to Withdraw

the Feeding Tube, and in Failing to Find That It

Was in Nancy Cruzan’s Best Interest That the Feed-

ing Tube Be Removed.

A

_ Self-Determination

The Missouri Supreme Court determined that there

was no inherently reliable evidence of Nancy Cruzan’s

wishes based on her statements alone. It required a

formal declaration made while the person was competent

in order to determine a person’s wishes. It refused to

allow the family members to substitute their judgment

based on their knowledge of Nancy in determining

whether the tube feeding should be discontinued. It

also refused to find that it was in Nancy Cruzan’s best

interest that the tube feeding be discontinued.

All of the medical testimony in this case was that

Nancy Cruzan suffered severe and permanent damage

to the higher parts of the brain that control the’ con-

scious mind, the abiliy to think and react to the envi-

ronment. All who testified agreed that this was due

to a significant lack of oxygen at the time that she was

involved in the automobile accident. All agreed that

she is physically totally disabled and will never recover

from that condition. All agreed that she is totally de-

pendent on others for all of her care and always will be.

15

Petitioners argue that a high standard of proof set

up for incompetent persons will in practical effect deny

virtually all incompetent persons, as a class, the right

of fundamental liberties. Pet. Br. p. 41. If petitioners

are referring to the requirement of a formal declaration

of a refusal to consent to many life-sustaining medical

treatments, these respondents agree. However, respon-

dents also feel that in a case such as this, the evidence

should be clear and convincing, not only as to the med-

ical condition and prognosis, but as to evidence bearing

on the issue of self-determination. See In re Eichner,

73 A.D.2d 431, 246 N.Y.S.2d 517 (N.Y. App. Div. 1980);

In re Jobes, 529 A.2d 434 (NJ. 1987); In re Gardner,

534 A.2d 947 (Me. 1987).

The evidence to support an incompetent’s right of

self-determination is just as important as the medical

prognosis or condition especially, as in this case, where

the withdrawal of the support will result in the patient’s

death. However, respondents believe that the evidence

in this case was clear arid convincing. Not only did

Nancy Cruzan tell her housemate that she would not

want to live as a vegetable, Tr. 389-90, 395-96, she also

said that “if she was going to live, she wanted to be

able to live, not to just lay in a bed and not be able to

move because you can’t do anything for yourself or go

enjoy your life or do what you want to do.” Tr. 396.

Witness after witness who knew Nancy, family,

friends, and fellow workers, in describing her character

invariably used the word “independent.” Tr. 397, 415,

511, 546, 557, 580, 588. She was also described as viva-

cious, outgoing, proud, fun-loving, and active. Tr. 397,

398, 411, 511-13, 534-35, 557, 580, 588. As guardians ad

litem, it was our opinion that, taking into account the

16

statements that Nancy made to her sister and her friend,

together with her personality, character, and lifestyle,

the evidence was clear and convincing that were she

able to forecast her present condition, she would de-

mand that the feeding tubes be removed. Yet, most

of this evidence was ignored by the Missouri Supreme

Court.

The Missouri Supreme Court viewed the evidence

of Nancy’s profoundly diminished capacity as quality of

life considerations which cannot support a decision to

cause death. Pet. App. A34.* Yet, when the court argues

that the issue is not whether continued feeding and

hydration for Nancy is medical treatment, and the issue

is whether providing food and liquid is a burden to her,

the court is really talking about quality of life. We can

all agree that the state has no right to determine whether

or not a person should die based on quality of life. But

certainly, quality of life is always a factor on the part

of an individual, competent or otherwise, in determining

medical treatment choices. That choice should be by

or for the individual, certainly not by the state.

Judge Higgins, in his dissent, correctly accuses the

majority of refinding the facts to support its result. Pet.

App. A65-66. The majority in holding that the evidence

of her wishes was inherently unreliable improperly chose

to ignore a great deal of the evidence on the subject.

7. The court resolutely refused to acknowledge that the

cause of the death would be the underlying condition, not the

— os the artificial support system. See discussion in Point

infra.

17

B

Substituted Judgment

A second method used by some courts in similar

cases is substituted judgment of a family where there

has been no clear direction by the incompetent. In this

case, the majority recognized that the family was a car-

ing, committed group and that there was no malevolent

purpose that could be ascribed to them. Pet. App. A9-10.

The substituted judgment approach by family members

is especially appropriate in this case for Nancy was very

close to her family and was greatly loved by them. Tr.

415, 446, 526, 532. The family knew her completely. No

financial or ulterior motive is shown on their part. Nor

was this a hasty decision on their part, but one reached

only after a long time had passed and after a great deal

of personal anguish and soul-searching. Tr. 432-34, 496-97,

519.

The request to discontinue the life support was made

in May of 1987, Tr. 436, well over four years after the

accident. Both parents consulted a psychologis’ who de-

scribed the process of realizing that there was no hope

as long and gradual. Tr. 497. There were also discussions

with the family doctor and conversations with support

groups and with numerous other people. The family is

convinced that what they are asking is what Nancy would

want to do. Tr. 519-20. Their oldest daughter, who was

Nancy’s closest friend, was a part of the decision-making

process and in full accord with it. Tr. 438.

This family situation is similar to the one In re

Quinlan, 355 A.2d 647 (N.J. 1976) where the incompe-

tent’s father was appointed guardian and given the right

to exercise his best judgment, subject to certain guide-

18

lines, to terminate a permanent noncognitive vegetative

existence. The father was described as very sincere,

moral, ethical, and religious. In re Jobes, 529 A.2}, it

also was held that if there are close and caring family |

members willing to make a decision to terminate a life-

support system, they are the best qualified to make sub-

stituted judgment not only because of their special grasp

of the patient’s approach to life, but also because of their

special bond with the patient."

In McConnell v. Beverly Enterprises, 209 Conn. 692

(1988), the court pointed out that when a family is unan-

imous, the court must place great weight on their decision

to enforce the desires of their loved one. A united caring

family is in the position to assess most directly what the

incompetent’s decision would be and the effect of that

decision would be most deeply felt by them. The patient’s

wishes could thus be subjectively determined by the

surrogate decision makers. That is exactly the situation

in this case. ;

The Missouri Supreme Court contended that the cases

which relied on the doctrine of substituted judgment to

permit guardians to choose termination of life support

failed to consider the source of the guardian’s authority,

the state’s parens patriae power. That simply is not true.

In In re Drabick, 245 Cal. Rptr. 840 (1988), the incom-

petent’s brother was appointed as conservator. The

California Probate Code allowed the conservator to have

the exclusive authority to give consent for medical treat-

8. As noted in the Jobes case, if there is a dispute among

members of a patient’s family, any interested party can invoke

judicial aid to insure that the patient is protected. In the pend-

ing case where the Trial Court appointed independent attorneys

and guardians ad litem because of the possible conflict of in-

terest between the guardians and the ward.

19

.

ment if the conservatee has been adjudged incapacitated.

The court stated,

“We are satisfied that this statute, by necessary im-

plication, gives the conservator power to withhold

or withdraw consent to medical treatment under ap-

propriate circumstances.”* 245 Cal. Rptr.

The California Probate Code contemplates that a con-

servator faced with a decision about medical care will

exercise -his judgment. Following this process the con-

servator may consent to treatment, but just as importantly,

he may also withhold consent. Unless the Probate Code

is read to include the correlative power, the statute would

simply—and absurdly—require the conservator to ap-

prove blindly all medical recommendations. The court

said this cannot be what the legislature intended since

to deny conservators the power to withhold consent

would render meaningless the statutory reference to a

decisional process.

Section 475.120.3, RSMo. 1986, quoted by the Mis-

souri Supreme Court in the Cruzan decision, Pet. App.

A39, provides that the guardian of an incapacitated ward

has power to:

“(2) Assure that the ward receives medical care

and other services that are needed.’’ (Emphasis sup-

plied. )

The determination of necessity of medical care ob-

viously involves the discretion of the Missouri guardian

just as much as in the case of the California conservator.

9. The California Probate Code gave the conservator: “The

exclusive authority to give consent for such medical treatment

to be performed on the conservatee as the conservator in good

faith based on medical advice determines to be necessary .. .”

Cal. Probate Code, Section 2355(a).

20

In both situations to claim that the guardian or conserv-

ator must follow all medical recommendations is absurd.

In Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d

674 (1987) (en banc), a statute provided that a guardian

may give any consents or approvals that may be neces-

sary to enable the ward to receive medical or other pro-

fessional care, counsel, treatment or service. Neverthe-

less, the Supreme Court of Arizona held:

“(T]he right to consent to or approve the delivery

of medical care must necessarily include the right

to consent to or approve the delivery of no medical

care. To hold otherwise would . . . ignore the fact

.. that oftentimes a patient’s interests are best served

when medical treatment is withheld or withdrawn.

To hold otherwise would also reduce the guardian’s

control over medical treatment to little more than a

mechanistic rubber stamp for the wishes of the med-

ical treatment team.” 741 P.2d at 688.

In reaching this decision, it relied on similar holdings In

the Matter of the Guardianship of Hamlin, 102 Wash. 2d

817, 689 P.2d 1372 (1984) and In the Matter of the Con-

servatorship of Torres, 357 N.W.2d 332 (Minn. 1984).

The Missouri court’s rejection of the doctrine of sub-

stituted judgment in determining treatment decisions is

based on the assumption that the doctrine authorizes a

guardian to cause the death of a ward unilaterally, with-

out interference by the state and contrary to the state’s

interest in preserving life and assuring the safekeeping

of those who cannot care for themselves. The court re-

fused to recognize that in this case the guardians are not

causing the death of the ward, but are allowing her to die

from the injuries she received. In other jurisdictions

similar cases have held uniformly that the patient is not

21

being killed, but is being allowed to die from the in-

jury, disease or condition that incapacitated the patient in

the first place. Some examples are Gray v. Romeo, 697

F.Supp. 580 (D.R.I. 1988); In re Conroy, 486 A.2d 1209

(Sup.Ct., N.J. 1985); Satz v. Perlmutter, 362 So.2d 359

(Dist. Ct. App. 1978); In re Colyer, 660 P.2d 738 (Wash.

1983); Superintendent of Belchertown State School v.

Saikewicz, 370 N.E.2d 417 (Mass. 1977); Corbett ov.

D’Alessandro, 487 So.2d 369 (Fla. 1986); In re Gardner,

524 A.2d 947 (Me. 1987); Bartling v. Superior Court,

163 Cal. App. 3rd 186, 209 Cal. Rptr. 220 (1984); and

In re Quinlan, 355 A.2d 647 (N.J. 1976).

The reasoning is that the patients were being kept

alive by artificial means. In all cases, the treatment

was not designed to cure, but rather to maintain an

incurable maJady. The removal of the artificial support

was simply allowing nature to take its course. The Mis-

sori Supreme Court was in error in refusing to accept

the substituted judgment of the family members.

C

Best Interests

The third test for determining whether an incom-

petent’s life-sustaining systems may be withdrawn is the

question of whether it is in the incompetent’s best in-

terests. The Missouri Supreme Court simply ignored this

test, even though the independent court-appointed guard-

ians ad litem and attorneys for Nancy Cruzan concluded

that under the evidence, it was in her best interests that

the life-support system be terminated.

In In re Link, 713 S.W.2d 487 (Mo. banc 1986), the

Supreme Court of Missouri held that appointed counsel

is a valuable guarantor of the alleged incompetent’s

22

righis. In In re M--, 446 S.W.2d 508 (Mo. App. 1969),

the court held that a guardian ad litem is required to

take all steps reasonably necessary to protect and pro-

mote the interests of the ward in the litigation. The

court in Link held that although several rights are enu-

merated in the statutes, the attorney for the ward could

waive those rights if that was in the ward’s best in-

terest. This included waiver of a jury trial. The pri-

mary concern is whether the action would promote the

best interests of the ward.

As guardians ad litem and attorneys, we have no

right to demand that the feeding tube be withdrawn.

But, we took an active part in the hearing, produced

nine witnesses, offered twelve exhibits, wrote trial and

posttrial briefs, and took part in oral argument before

the Missouri Supreme Court. Yet, our recommendations

that it was in Nancy’s best interests to have the artifi-

cially supplied nutrition and hydration terminated were

ignored.

Although the Supreme Court of Missouri stated that

Nancy will remain in a persistent vegetative state until

her death, Pet. App. A34, and that a feeding by a ‘ube

already in place would not be a painful invasion, the

Trial Court found that

. “Her highest cognitive brain function is exhibited

by her grimacing, perhaps in recognition of ordinar-

ily painful stimuli, indicating the experience of pain

and apparent response to sound.” Pet. App. A965.

Nancy’s present condition is that she has contrac-

tures in both upper and lower extremities which are

irreversible changes in tendon and joints. Her wrists,

fingers, and hands are frozen at that posture and nothing

23

can be done to unfreeze them. Tr. 143-44. She cannot

swallow normally, Tr. 164, and she is totally dependent

on others. Tr. 193. She is incontinent of bowel and

bladder and changes are made in the linen when this

occurs. Tr. 317. She has no future from a medical or

mental point of view. Tr. 337. Her face is usually

red, arms are drawn up and directed in and her legs

are drawn toward her chest. Tr. 371. She drools, her

hair gets wet, as do her gown and sheets. Tr. 444-45.

Her mother, father, and older sister all feel that it is

in her best interests that the feeding tube be discon-

tinued. Tr. 444, 521, 543.

The attitude of the Supreme Court of Missouri is

that Nancy can feel no pain, and the burden of the

feeding tube is not substantial for her, therefore the

state’s interest in the preservation of life outweighs any

rights invoked on Nancy’s behalf. Pet. App. A43. Al-

though the court referred to the benefit that life con-

veys both to Nancy and her loved ones, Pet. App. AQ,

nowhere is that benefit explained. It ignored the fact

that a PVS patient cannot experience either benefits or

burdens of treatment. Tr. 196.

Although some courts have determined that where a

continued existence is painful, it is in the ward’s best

interests to have life-support systems terminated, Super-

intendent of Belchertown State School v. Saikewicz, supra,

other courts have found that the discontinuance of life-

support systems in persistent vegetative state patients

was in their best interests even though they can experience

no pain.

In re Dravick, 200 Cal. App. 3d 185, the court pointed

out that the PVS patient’s life was prolonged because it

was possible, not because anyone purporting to speak

24

for him has decided that it was the best or the wisest

course. The court:

“Life-sustaining treatment is not ‘necessary’ under

Probate Code Section 2355 if it offers no reasonable

possibility of returning the conservatee to cognitive

life and if it is not otherwise in the conservatee’s best

interests, as determined by the conservator in good

faith.”

It may be possible, as the doctors have testified, to

keep Nancy in this condition for thirty years or more.

However, at some time her brainstem will stop function-

ing and she will be legally dead. She will not improve any

before that time. It is impossible to see how her in-

terests are being best served by maintaining her in this

condition until that inevitable time comes. No aspect

of the life she used to know is possible now. Neither

should she be maintained in this limbo because of spec-

ulation by the court that its decision might affect the

right of some unknown person who might choose to

remain in a similar condition although never having

expressed that choice. This is Nancy’s case, not that of

someone else under some other set of facts. Again, the

Missouri court contradicted itself, for it started by saying

the decision was limited to a single issue, Pet. App. A6,

A9, and then extended its holding to protect others in

hypothetical situations. Pet. App. Al0, A43, A465.

There is ample evidence to uphold the Trial Court’s

decision to allow the feeding tube to be disconnected under

any of the three tests outlined above. The Supreme Court

of Missouri erroneously failed to recognize this in its

decision.

25

IV

Under the Facts of This Case, the State’s Interest

in Preservation of Life Is Not Superior to Nancy’s

Right to Discontinue Further Treatment. The Mis-

souri Court Erred in Holding That the State Has the

Paramount Right to Demand That the Artificia! Life

Support System Be Maintained.

In cases involving questions of the removal! of life-

support systems, four state interests have been identified:

preservation of life, prevention of homicide and suicide,

protection of innocent third parties and maintenance of

the ethical integrity of the medical profession. Pet. App.

A25. Brophy v. New England Sinai Hospital, Inc., 497

N.E.2d 626 (Mass. 1986). In this case the Missouri Su-

preme Court majority conceded that only the state’s in-

terest in the preservation of life is implicated. Pet.

App. A25.

The majority argued that the state’s interest in life

embraces an interest in prolongation of life of the in-

dividual and an interest in the sanctity of life itself. Pet.

App. A25. It found the prolongation interest particularly

valid in Nancy’s case for she is not terminally ill and

will continue a life of relatively normal duration if al-

lowed basic sustenance. Pet. App. A26. However, the

fact that her life is not normal in any other sense of the

word was not a part of the court’s consideration as to

the balancing test of individual rights versus state’s rights.

The majority claims that life is precious and worthy of

preservation without regard to its quality, and states that

any substantive principle of law they adopt must provide

shelter for those who would choose to live—if able to

choose—despite the inconvenience that choice may cause

others.

26

Again, the court has strayed from the facts before |

it for the inconvenience to the family was never a factor

in the decision of Nancy’s parents and guardians to ask

for removal of the tube. There is absolutely no evidence

that Nancy’s parents and guardians were motivated in

the slightest by any personal inconvenience. It was the

inconvenience and the loss to Nancy that motivated them.

Tr. 452. Their suffering only became important because

they knew that Nancy would not want that to occur and,

therefore, became part of her choice. Tr. 446, 544.

Another example of the majority’s misunderstanding

of the issues involved is the statement:

“But the state’s interest is not in quality of life.

The broad policy statements of the legislature make

no such distinction; nor shall we. Were quality of

life at issue, persons with all matters of handicaps

might find the state seeking to terminate their lives.

Instead, the state’s interest is in life; that interest

is unqualified.” Pet. App. A29.

In this case, it is not the state which is seeking to

terminate life. Instead, it is the individual through her

parents and guardians who are asking that she be al-

lowed to die from her original injuries. We can all

agree that the state has no right to determine who shall

live where capital crimes are not involved, but that is

not the point under consideration. Quality of life issues

are critical to the patient in many situations. Should

one undergo an amputation, or cisk a shortened life?

Should a painful course of treatment be accepted in the

hope of some prolongation of life? Treatment risks and

alternatives are always a factor and quality of life is

always a major consideration in medical decisions.

27

At some point Nancy is going to die. At some point

she will become terminally ill. Yet, the Missouri court’s

decision leaves the guardians, or anyone who may be

then acting on Nancy’s behalf if she outlives her parents,

with the duty to prolong her life as she had never made

a formal statement to the contrary.

As the Missouri Supreme Court has mandated that

this care must continue, Nancy Cruzan is, indeed, a pris-

oner of medical technology to which she has not con-

sented and of which there is substantial evidence that

she would not choose. In a sense, it is a form of in-

voluntary servitude, for neither she nor anyone else has

any choice but to allow the continuation of the medical

treatment. See U. S. v. Solomon, et al., 563 F.2d 1121

(4th Cir. 1977). 7

The Missouri Supreme Court stated four standards

of review of a court-tried case: whether there is sub-

stantial evidence to support the Trial Court’s decision,

whether the decision is against the weight of the evi-

dence, whether it erroneously declares a law or whether

it erroneously applies a law. The majority’s decision

was not based on a lack of substantial evidence or on

the theory it was against the weight of the evidence.

Instead, the court found that the Trial Court errone-

ously declared the law and, therefore, they reversed the

decision. Pet. App. A6. But after apparentiy conceding

that the Trial Court’s decision was substantially sup-

ported by the evidence, and was not against the weight

of the evidence, it overruled the court based on a lack

of evidence. This is another inconsistency in the opin-

ion.*°

10. Another inconsistency is that the deciding vote was cast

by a lower court judge. Even in a case of this magnitude, the

(Continued on following page)

28

If there is any theme or direction to the decision,

it is the preservation of life or the sanctity of life. Under

the court’s rationale, it would almost never allow ter-

mination of life support systems except as directed by

the Living Will Act. Yet, in a case of almost the same

set of facts, the Supreme Court of New Jersey, In re

Jobes, 529 A.2d 434 (N.J. 1987) held exactly the oppo-

site. The Missouri court considered the Jobes case only

in the context that the statements made by the incom-

petent before her accident were remote, general, spon-

taneous, and made in casual circumstances. Pet. App.

A37. It rejected the idea that the family could make

the determination to remove life-support. The Missouri

majority did not accept the New Jersey court’s reasoning

in Jobes when it determined that the state’s interest

in prolonging life weakened as the degree of bodily in-

vasion increases and the prognosis for recovery to a

cognitive sapient state dims. The Jobes court found it

difficult to conceive of a case in which the state could

have an interest strong enough to subordinate a patient’s

right to choose not to be sustained in a persistent vege-

tative state. That is just the situation in the Cruzan case.

The proposition of the state’s interest in preserving

life was also discussed in Gray v. Romeo, 697 F.Supp.

580 (D.R.I. 1988), where the court stated:

“Esseatially, this controversy concerns the question

of whether or not the State can insist that a person

in a vegetative state incapable of intelligent sensa-

tion, whose condition is irreversible, may be required

Footnote continued—

Missouri Supreme Court chose to ignore its own r-jes and a

state statute dealing with special judges. Welliver, J., dissent-

ing from the denial of the motion for a rehearing. Pet. App.

A87-88.

29

to submit to medical care under circumstances under

which the patient prefers not to do so. In this

light the issues presented do not essentially involve

death, but essentially relate to life and its circum-

stances.” Id. at 584.

There were no formal declarations by the patient

in the Gray case, yet the court held that her wishes

should prevail over the state’s rights involving the con-

tinuation of provision of nourishment and hydration.

A number of other states have also held that the

right to refuse treatment survives incompetence and out-

weighs the state’s interest in preserving life; In re

Drabick, 245 Cal. Rptr. 840 (Cal. App. 1988); In re Gard-

ner, 534 A.2d 947 (Me. 1987); Rasmussen v. Fleming,

741 P.2d 674 (Ariz. 1987); Delio v. Westchester County

Medical Center, 129 A.D.2d 1, 516 N.Y.S.2d 677 (1987);

Brophy v. New England Sinai Hospital, Inc., 497 N.E.2d

626 (Mass. 1986); Matter of Conservatorship of Torres,

357 N.W.2d 332 (Minn. 1984); In re Colyer, 660 P.2d 738

(Wash. 1983); Foody v. Manchester Memorial Hospital,

482 A.2d 713 (Conn. 1984); John F. Kennedy Hospital

v. Bludworth, 452 So.2Zd 921 (Fla. 1984).

In effect, the Missouri majority has made the state’s

interest in preserving the life of an incompetent abso-

lute where the incompetent has not executed a living

will or some other formal document. No other state

has gone this far. A PVS patient’s right of refusal of

life-sustaining medical treatment depends on where that

person lives. In Missouri, he or she has no choice.

30

CONCLUSION

The questions presented in this brief are answered

as follows:

1. An incompetent person whose life is being main-

tained by medically sv vlied artificial means has a con-

stitutional right to refuse treatment, which rights are

superior to the state’s interest in the preservation or

prolongation of life; and

2. These rights may be exercised on the incompe-

tent’s behalf either in accordance with evidence of self-

determination, by substituted judgment of the family or

by evidence that the termination would be in the in-

competent’s best interests.

For refusing to recognize and uphold these rights,

the decision of the Missouri Supreme Court is erroneous

and should be reversed.

Respectfully submitted,

THap C. McCanse*

Davin B. Mouton

FLANIGAN, McCanse & LASLEY

P. O. Box 272

Carthage, Missouri 64836

Telephone 417/358-2127

*Counsel of Record

Counsel for Respondent Guardian ad litem

ae ee O ee ee ee ete et