# Amicus Curiae Brief — Cruzan Ex Rel. Cruzan v. Director, Missouri Department of Health > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0463%3A22 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 497 U.S. 261 ## Text 7" Supreme Court, U.S. ~Y FILED Supreme Court of the United Stews © oo +e OCTOBER TERM, 1989 OO, et NANCY BETH CRUZAN, by her parents and co-guardians, LESTER L. and JOYCE CRUZAN, ‘ Petitioners, DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH, et al., Respondents. On Writ of Certiorari to the Missouri Supreme Court BRIEF OF THE AMERICAN MEDICAL ASSOCIATION, AMERICAN ACADEMY OF FAMILY PHYSICIANS, AMERICAN ASSOCIATION OF NEUROLOGICAL SURGEONS, AMERICAN COLLEGE OF SURGEONS, AMERICAN MEDICAL WOMEN’S ASSOCIATION, AMERICAN SOCIETY FOR PARENTERAL & ENTERAL NUTRITION, MISSOURI STATE MEDICAL ASSOCIATION, AND MISSOURI STATE NEUROSURGICAL SOCIETY AS AMICI CURIAE IN SUPPORT OF PETITIONERS - KiRK B. JOHNSON Rex E. LEE * EDWARD B. HIRSHFELD CARTER G. PHILLIPS DAVID ORENTLICHER ELIZABETH H. Esty AMERICAN MEDICAL ASSOCIATION MARK E. HADDAD — 5635 North Dearborn Street SIDLEY & AUSTIN Chicago, Illinois 60610 1722 Eye Street, N.W. (312) 645-4600 Washington, D.C. 20006 SLIZABETH M. GALLUP (398) 59-4000 AMERICAN ACADEMY OF JACK R. BIERIG FAMILY PHYSICIANS SIDLEY & AUSTIN 8880 Ward Parkway 1 First National Plaza Kansas City, Missouri Chicago, Illinois 60603 64114-2797 (312) 853-7000 (800) 274-2237 (List of Counsel Continued on Inside Cover) September 1, 1989 * Counsel of Record WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 x RUSSELL M. PELTON BRENDA A. BESWICK PETERSON, Ross, SCHLOERB & SEIDEL (Counsel to the American Association of Neurological Surgeons) 200 East Randolph Drive Chicago, Illinois 60601 (312) 861-1400 PAUL G. GEBHARD DOUGLAS J. POLK VEDDER, PRICE, KAUFMAN & KAMMHOLZ (Counsel to the American College of Surgeons) 222 North LaSalle Street Chicago, Illinois 60601-1003 (312) 609-7500 . LAURIE R. ROCKETT HOLLYER, JONES, BRADY, SMITH, TOXELL, BARRETT & CHIRA (Counsel to the American Medical Women’s Association, Inc.) 342 Madison Avenue New York, N.Y. 10173 (212) 818-1110 HENRY HART HAZEL, THOMAS, FISKE, BECKHORN & HANES (Counsel to the American Society for Parenteral and Enteral Nutrition) 3110 Fairview Park Drive Suite 1400 Falls Church, Virginia 22042 (703) 641-4200 QUESTION PRESENTED Amici curiae will address the following question: Whether the fundamental right protected by the Due Process Clause of the Fourteenth Amendment of a pa- tient in a persistent vegetative state to have life-prolong- ing treatment withdrawn is outweighed solely by a state’s general interest in prolonging life. (i) TABLE OF CONTENTS QUESTION PRESENTED. ...0000..2..22.........scscesscesceseeseneee TABLE OF AUTHORITIES ........................ INTEREST OF THE AMICI CURIAE ........................ ET siridteetctntuniineiimpsnenmnenmmmnnmeceneemmemmmmmmannaten MEDICAL BACKGROUND 200....o.....2.2220..cccceeeeeeceeeeeeeeee The Persistent Vegetative State 0000000. Enteral Nutrition and Feeding Tubes ..................... SUMMARY OF ARGUMENT ..QWW22.22.22.22.2....ssecceeeees ITE nt privilege. Id. at 1532. 30 See Slater & Baker v. Stapleton, 95 Eng. Rep. 860 (K.B. 1767) (two physicians held liable for disuniting partially healed fracture without patient’s consent); see also Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 15-16 (1905). The battery analysis has been applied not only to nonconsensual surgical intervention, but to any form of medical treatment imposed against the patient’s will. Winters Vv. Miller, 446 F.2d 65, 68 (2d Cir.), cert. denied, 404 US. 985 (1971) (giving patient forced medication over her objections constituted common law assault and battery); Cooper v. Roberts, 220 Pa. Super. 260, 286 A.2d 647, 649 & n.2 (1971) (same duty of disclosure applies whether or not the gastroscopic examination at issue could technically be termed a surgical operation). 31 See generally P. Appelbaum, C. Lidz & A. Meisel, Informed Consent: Legal Theory and Clinical Practice (1987) ; J. Katz, The Silent World of Doctor and Patient (1984); Schultz, From In- formed Consent to Patient Choice: A New Protected Interest, 95 Yale L.J. 219 (1985). ee ee 27 a right to determine what shall be done with his own body... .’” Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir.), cert. denied, 409 U.S. 1064 (1972) (quoting Schloendor ff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914) (Cardozo, J.) ). The principle of informed consent and its corollary right to refuse treatment have traditionally not been qualified hy ine “nature or purpose of the treatment, or the gravity of the consequences [to the individual] of ac- ceding to or foregoing it.” ** Tune v. Walter Reed Army Medical Hospital, 602 F. Supp. 1452, 1455 (D.D.C. 1985). Patients have been entitled to decline “even cure” if the treatment would entail what for them would be intoler- able burdens, “however unwise [their] sense of values may be to others.” In re Gardner, 534 A.2d 947, 951 (Me. 1987) (quotine Downer v. Veilleux, 322 A.2d 82, 91 (Me. 1974) ). In accordance with these principles, state courts have consistently held that the patient’s right to refuse even life-saving and life-prolonging treatment outweighs the state’s interest in preserving life.** In the relatively rare 82 The right historically has been qualified to protect innocent third parties, such as minor dependents of the patient. See notes 34 and 50, infra. 83 According to one estimate, the right to refuse medical treat- ment has been upheld in more than 80 court decisions. See Wanzer, Federman, et al., The Physician’s Responsibility Toward Hopelessly lll Patients, 320 New Eng. J. Med. 844, 844 (1989). For cases involving patients in a persistent vegetative state, see cases, supra, note 26; for cases involving terminally ill, incompetent patients, see In re Beth Israel Medical Center, 136 Misc. 2d 931, 519 N.Y.S. 2d 511 (Sup. Ct. 1987); In re L.H.R., 253 Ga. 439, 321 S.E.2d 716 (1984) ; Superintendent of Belchertown State School v. Saikewicz, 873 Mass. 728. 370 N.E.2d 417 (1977); for cases involving com- petent patients, see Satz v. Perlmutter, 379 So.2d 359 (Fla. 1980) ; Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 225 Cal. Rptr. 297 (1986); St. Mary’s Hospital v. Ramsey, 465 So.2d 666 (Fla. Dist. Ct. App. 1985); Bartling v. Superior Court, 163 Cal. App. 3d 186, 209 Cal. Rptr. 220 (1984); In re Lydia E. Hall Hospital, 116 Misc. 2d 477, 455 N.Y.S.2d 706 (1982); Lane v. Candura, 6 Mass. App. 28 instances where courts have refused to uphold the patient’s refusal, the courts’ decisions typically have been based on the need to protect minors dependent on the patient.** Furthermore, over the past decade, most state legislatures have taken steps to facilitate the ability of patients in certain circumstances to exercise their right to refuse life-prolonging medical treatment. At least 38 states now have “living will” acts, which allow patients to dictate in advance whether their lives will be prolonged in the event they become terminally ill, and at least 15 states have statutes that enable persons to authorize a surrogate decisionmaker to make health care decisions for them in the event of incompetency. Wanzer, Federman et al., The Physician’s Responsibility Toward Hopelessly Ill Pa- tients, 320 New Eng. J. Med. 844, 844 (1989); Areen, The Legal Status of Consent Obtained From Families of Adult Patients to Withhold or Withdraw Treatment, 258 J.A.M.A. 229, 230 (1987). Like many of these statutes, the Missouri Living Will Act expressly states that the procedures it provides are entirely cumulative, and do not displace or preempt a person’s common law right to refuse treatment.” 377, 376 N.E.2d 1232 (1978); In re Quackenbush, 156 N.J. Super. 282, 383 A.2d 785 (1978) ; In re Yetter, 62 Pa. D. & C. 619 (1973) In re Brown, 478 So.2d 1033 (Miss. 1985); see also Tune v. Walter Reed Army Medical Hosp., 602 F. Supp. 1452 (D.D.C. 1985). 34 See, e.g., Powell v. Columbian Presbyterian Medical Center, 49 Misc. 2d 215, 267 N.Y.S.2d 450, 451 (1965) (transfusion ordered where patient’s spouse and minor children objected to patient’s refusal and patient’s objection was not to transfusion itself but to signing the authorization). Cf. In re Westchester County Medical Center, 72 N.Y.2d 517, 531 N.E.2d 607 (1988) (recognizing the right to have treatment withheld, but refusing to authorize it in this instance because of ambiguity surrounding the wishes of the patient, who was neither unconscious nor terminally ill). 85 See Mo. Ann. Stat. § 459.055 (Vernon 1988). Statutes pro- viding for surrogate decisionmakers, such as Illinois’ Powers of Attorney for Health Care Act, also expressly state that their pro- visions are cumulative. See, e.g., Ill. Ann. Stat. ch. 110 1/2, J 804-3 (Smith Hurd 1989). - es 29 C. The Right To Have Life-Prolonging Medical Treat- ment Withdrawn Is Not Lost Upon Incompetency. By its terms, the Fourteenth Amendment applies to “any person,” and it is well-established that the protec- tion of an individual’s liberty is not lost upon incom- petency. Youngberg v. Romeo, 457 U.S. 307, 314-15 & n.16 (1982) ; cf. Thompson v. Oklahoma, 108 S. Ct. 2687, 2693 n.23 (1988) (plurality opinion) .** Indeed, a judicial doctrine that constrains the protection afforded to in- competent patients plainly invites a serious challenge un- der the Equal Protection Clause. See Jn re Eichner, 73 A.D.2d 431, 465, 426 N.Y.S.2d 517, 542 (N.Y. App. Div. 1980), modified on other grounds sub nom. In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, cert. denied, 454 U.S. 858 (1981). Accordingly, a person who, prior to losing competency, has made a decision not to be kept alive by artificial treat- ment is entitled to have that decision honored. A person should not lose the right to have that choice enforced sim- ply because of incompetence at the time withdrawal of treatment is to occur. The fact that one is not consciously aware that one’s body is being invaded or one’s dignity destroyed is no reason to countenance such an invasion. Were the State of Missouri to propose performing medi- cal experiments upon one of its patients being kept alive in a persistent vegetative state, there is little doubt that a permanent restraining order would quickly issue. “There are limits to the extent to which a legislatively represented majority may conduct biological experiments 36 Among the state cases so holding are Jn re Conroy, 98 N.J. 321, 486 A.2d 1209, 1229 (1985); Foody v. Manchester Memorial Hospital, 40 Conn. Supp. 127, 482 A.2d 713, 718 (1984); In re L.H.R., 253 Ga. 439, 321 S.E.2d 716, 722 (1984) ; In re Torres, 357 N.W.2d 332, 339 (Minn. 1984); John F. Kennedy Memorial Hos- pital v. Bludworth, 452 So.2d 921, 923 (Fla. 1984); In re Colyer, 99 Wash. 2d 114, 660 P.2d 738, 742 (1983), modified on other grounds, In re Hamlin, 102 Wash. 2d 810, 689 P.2d 1372, 1376 (1984); In re Quinlan, 70 N.J. 10, 355 A.2d 647, 664, cert. denied, 429 U.S. 922 (1976). 30 at the expense of the dignity and personality and natural powers of a minority.” Skinner, 316 U.S. at 546 (Jack- son, J., concurring). See United States v. Stanley, 483 U.S. 669, 709 (1987) (O’Connor, J., concurring in part and dissenting in part); Poe, 367 U.S. at 555 (Harlan, J., dissenting). Like the prohibition on experimentation without con- sent, the prohibition on treatment without consent “ ‘must extend to the case of an incompetent, as well as a compe- tent, patient because the value of human dignity extends to both.” Brophy, 497 N.E.2d at 634 (quoting Superin- tendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 427 (1977)). For these rea- sons, every state supreme court, except Missouri’s, that has reached the issue has concluded that an incompetent patient has a fundamental right to have life-prolonging medical treatment withdrawn.” II. DUE PROCESS REQUIRES THAT INCOMPETENT PATIENTS BE GIVEN A REASONABLE OPPOR- TUNITY TO HAVE IMPLEMENTED THE TREAT- MENT CHOICE THEY WOULD HAVE WANTED. The “ ‘private realm of family life which the state can- not enter’ . . . has been afforded both substantive and procedural protection.” Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 842 (1977) (empasis added, quotations and footnotes omitted). Mis- souri, however, has provided neither. In rejecting peti- tioners’ request for an order directing that life-prolonging treatment be withdrawn, the Missouri Supreme Court held that, in the absence of a patient’s explicit prior directive, it need not consider the significance of the views that Nancy Cruzan expressed prior to her accident nor the testimony of her parents, sister and close friends as to what she would have wanted. Pet. App. A37, A42-A43. In effect, the State has seized on Nancy Cruzan’s failure formally to record her preferences as a basis for impos- ing upon her its own judgment as to what constitutes 87 See supra notes 26, 33. 31 appropriate treatment. This approach fails to afford Nancy Cruzan and her parents the kind of fair oppor- tunity to protect her fundamental right to have treat- ment withdrawn that the Due Process Clause requires. “A fundamental requirement of due process is ‘the opportunity to be heard’... at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (citation omitted). The type of hearing and accompanying procedures that due process requires vary, because “due process is flexible and calls for such procedural protections as the particular situation de- mands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Nevertheless, to meet the dictates of due process, a state must provide procedures appropriate to “the nature of the ultimate decision that is being made.” Parham v. J.R., 442 U.S. 584, 608 (1979); see Stanley v. Illinois, 405 U.S. 645, 650-51 (1972); Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) ; Goldberg v. Kelly, 397 U.S. 254, 263 (1970). By demanding the execution of an express directive equivalent to a living will, Missouri unreason- ably limits the means by which a person can exercise the right to have treatment withdrawn. A. Missouri Law Unconstitutionally Limits A Person’s Ability To Exercise The Fundamental Right To Refuse Life-Prolonging Medical Treatment. The theoretical possibility that Nancy Cruzan could have executed an express prior directive is not a con- stitutionally sufficient means to protect her interests. Rel- atively few persons have executed living wills.** As one court has explained, “the typically human characteristics of procrastination and reluctance to contemplate the need for . . . arrangements [such as living wills] . . . makes [such wills] a tool which will all too often go unused by those who might desire it.” Barber v. Superior Court, 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484, 489 (1983). 38 Wanzer, Federman, et al., The Physician’s Responsibility To- ward Hopelessly Ill Patients, 320 New Eng. J. Med. 844, 845 (1989). 32 A natural reluctance to plan formally for one’s death is particularly understandable in a young person, and the expectation that a healthy 25 year old will have taken formal steps to record her treatment choices about an eventuality as unlikely as being sustained in a persistent vegetative state is extremely unreasonable.” Second, the fact that a person has not executed a writ- ten document or provided a comparable oral directive does not mean that person has no developed views about the withdrawal of life-prolonging treatment or that those views are unknown to others. It is precisely in relaxed, unforced conversations with family and close friends when a person will most likely reveal private thoughts about such questions as being sustained in a vegetative state. E.g., In re Conroy, 98 N.J. 321, 486 A.2d 1209, 1230 (1985) (it is error to disregard evidence of patient’s statements to friends concerning artificial prolongation of lives of others who were terminally ill). It is evidence of just such conversations that petitioners introduced at trial here, and that the trial court and other courts have found to constitute convincing evidence of a person’s prefer- ences. E.g., Pet. App. A97-A98; Gardner, 534 A.2d at 953; Gray, 697 F. Supp. at 583; Brophy, 497 N.E.2d at 632 n.22. Third, the patient’s treatment choice may be plain from evidence other than personal statements on that subject. A person’s views on death and dying are inextricably connected with views on life and how it should be lived. Family members are uniquely qualified to weigh and cer- tify the validity of these elements of expression, not only because of their unique understanding of the patient’s approach to life, but also because of the special, familial 8® The expectation is all the more unreasonable given that Mis- souri did not have a living will statute at the time of Nancy Cru- zan’s accident, nor would the living will statute that Missouri did pass in 1985 have applied to her present condition. See Mo. Ann. Stat. §§ 459.010 et seq. (Vernon 1988); Johnson, The Death- Prolonging Procedures Act and Refusal of Treatment in Missouri, 30 St. Louis U.L.J. 805 (1986). 33 bonds that exist. In re Jobes, 108 N.J. 394, 529 A.2d 434, 445 (1987) .* Accordingly, the rule adopted by the vast majority of courts is that neither a written nor a highly specific oral expression by the patient is required. See, e.g., In re Drabick, 200 Cal. App. 8d 185, 245 Cal. Rptr. 840, 859 (1988); Foody v. Manchester Memorial Hospital, 40 Conn. Supp. 127, 482 A.2d 718, 721 (1984). Instead, factors such as the patient’s religious beliefs and values, consistent patterns of conduct in prior decisions about medical care, and reactions the patient voiced regarding medical treatment administered to others who became in- competent are all relevant to determining what the patient would want. Conroy, 486 A.2d at 1230; In re Storar (Eichner v. Dillon), 420 N.E.2d 64, 68, cert. denied, 454 U.S. 858 (1981). Finally, Missouri’s rule is inconsistent with all con- temporary information about the decision most people would make if they were to find themselves in Nancy Cruzan’s predicament. The available survey evidence suggests that most people would not want such treat- ment continued, and would want their families and others to have legal authority to request the withdrawal of life- support systems, including artificial nutrition and hydra- tion.** The positions of the AMA * and co-amici and the *° Western tradition has never required individuals to record precisely and in advance their basic beliefs about human dignity and life by which they wish tc be remembered. See P. Aries, West- ern Attitudes Toward Death: From the Middle Ages to the Present 63-65 (1974). 41 See surveys cited in Jobes, 529 A.2d at 446-47 n.11; Wanzer, Federman, et al., 320 New Eng. J. Med. at 844; Brief of the So- ciety for the Right to Die in Support of the Petition for Certio- rari 8. 42 According to AMA Ethics Opinion 2.20, when there are ade- quate safeguards to confirm the accuracy of a diagnosis of per- manent unconsciousness and a decision to withdraw treatment ful- 34 overwhelming weight of opinion among health care pro- fessionals is that withdrawal of treatment in such cir- cumstances is ethically permissible.** And, most im- portant, such withdrawal is permitted in virtually all states that have considered the iss: e.** In these circum- stances, the fundamental fairness required by the Due Process Clause precludes «. state from imposing proce- dural prerequisites that predictably foreclose any realistic opportunity for persons to exercise their right to have life-prolonging treatment withdrawn. B. Missouri Law Unconstitutionally Preempts The Right Of Incompetent Patients To Have Family Members Manage Their Treatments. By imposing on Nancy Cruzan the treatment choice that the Missouri Supreme Court finds consistent with the policy of the Missouri legislature, the Missouri Su- preme Court has effectively foreclosed Nancy Cruzan’s parents from participating in the treatment decision made regarding their daughter. This decision contravenes the historic tradition of procedural protection that this Court has guaranteed to families in matters of unique importance to them. See Pierce, 268 U.S. at 535; Meyer v. Nebraska, 262 U.S. 390, 399, 402 (1923); Wisconsin v. Yoder, 406 U.S. 205, 213, 232 (1972). This tradition recognizes that family members are gen- erally best suited to determine what the incompetent pa- tiert would have chosen. Family members are most likely to have had conversations with the patient specifi- cally about the withdrawal of life-prolonging treatment. In addition, because an individual’s values are developed primarily in the context of the family, family members have the most intimate understanding of the patient’s fils the previously expressed preferences of the patient, “it is not unethical to discontinue all means of life-prolonging medical treat- ment.” App. at la. 43 See supra, notes 20-23. 44 See supra, note 33 (citing cases). 35 perspectives. Parents understand their children’s values because they helped form them, and children understand their parents’ values because they were taught them. Rhoden, Litigating Life and Death, 102 Harv. L. Rev. 375, 437-39 (1988). Family members best know the patient’s philosophical, religious and moral views, the patient’s values about life and the way it should be lived, and the patient’s attitudes toward sickness, suffer- ing, medical procedures and death. See Jobes, 529 A.2d at 445 (quoting Newman, Treatment Refusals for the Criti- cally Ill: Proposed Rules for the Family, the Physician and the State, III N.Y.L.J. Human Rights Annual 45-46 (1985) ). Moreover, family members are generally the most con- cerned with the patient’s welfare. “It is they who provide for the patient’s comfort [and] care . . . and-they who treat the patient as a person, rather than a symbol of a cause.” Jobes, 529 A.2d at 445. Accordingly, the family has historically served as the “usual place of recourse for sick persons.” Demos, The American Family in Past Time, 43 Am. Scholar 422, 424 (1974). Recognizing the importance and intensity of family bonds,*® this Court has consistently protected “[{t]he fun- damental liberty interest of natural parents in the care, custody, and management of their child.” Santosky v. Kramer, 455 U.S. 745, 747-48 (1982). See Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents.”). Hence, in Parham v. J.R., 442 U.S. 584 (1979), the Court upheld state procedures for voluntary commitment to state mental hospitals of minor children precisely because these procedures ac- corded appropriate deference to the views of parents and 45 Family bonds have deep roots in American society. See Demos, 43 Am. Scholar at 425, 441 (stating that “[i]t is now clear that nu- clear households have been the norm in America since the time of the first settlements,” and concluding that trends in family life since then point to “a deep intensification of the parent-child bond”). 36 medical professionals. See id. at 621 (Stewart, J., con- curring). Similarly, in Santosky v. Kramer, 455 U.S. 745 (1982), the Court required states to employ the clear and convincing standard of proof before terminating the rights of natural parents to raise their children. This constitutional respect for the role of parents in making decisions regarding the care and custody of their children has been recognized by the common law for cen- turies. Parham, 442 U.S. at 602 (“[Hl]istorically, [the common law] has recognized that natural bonds of affec- tion lead parents to act in the best interests of their chil- dren. 1 W. Blackstone, Commentaries, *447; 2 J. Kent, Commentaries on American Law *90.”); id. at 621 & n.1 (Stewart, J., concurring). Indeed, parents have tra- ditionally enjoyed a strong presumption under the com- mon law that they are the appropriate medical decision- makers for their children. Bowen v. American Hospital Ass’n, 476 U.S. 610, 627 n.13 (1986). While the state must intervene to prstect against abuse, parental deci- sions are almost never overturned as long as the parents choose from among professionally accepted treatment op- tions. Id.** Recognizing that the family’s response to an incompet- ent family member is substantially similar to the fam- ily’s concerns for a minor child, courts have asserted that the family, as surrogate decisionmaker, may exercise the incompetent patient’s right to refuse medical treatment.* 46 This common law tradition has been codified in many states. Informed consent statutes routinely recognize family members 4s the appropriate decisionmakers for their minor children or other incompetent family members. See, e.g., Ark Code Ann. § 20-9-602; Ga. Code Ann. § 88-2904; Idaho Code § 39-4303; La. Rev. Stat. Ann. § 40:1299.53. 47 See Foody v. Manchester Memorial Hospital, 40 Conn. Supp. 127, 482 A.2d 713, 720-21 (1984) (family could lawfully act as sub- stitute decisionmaker for 42-year-old irreversibly incompetent pa- tient); In re P.V.W., 424 So.2d 1015 (La. 1982) (parents of irre- versibly brain-damaged infant may assert child’s right to remove life support systems) ; see also In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922 (1976). es ob et! me ey 37 Here, moreover, the parents seek not simply to authorize the treatment decision that they believe to be in their daughter’s best interests, but the treatment decision they believe their daughter would want made.** Their stake in having the hospital honor their daughter’s treatment pref- erence is suistantial indeed. The Ccurt has lrag recog- nized “the importance of the familial relationship, to the individuals involved and to the society, [which] stems from the emotional attachments that derive from the in- timacy of daily association.” Smith v. Organization of Foster Families, 431 U.S. at 844. To disregard the par- ents’ desire to protect their daughter’s fundamental right is to disregard “the historic respect—indeed, sanctity would not be too strong a term—traditionally accorded to the relationships that develop within the unitary family.” Michael H. v. Gerald D., 109 S. Ct. 2333, 2342 (1989) (plurality opinion) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972) ) ; Quilloin v. Walcott, 434 U.S. 246, 254- 55 (1978); Caban v. Mohammed, 441 U.S. 380, 389 (1979) ; Lehr v. Robertson, 463 U.S. 248, 261 (1983) ).* 48 Since Quinlan, most courts to reach the issue have concluded that surrogate decisionmakers should be guided by preferences that the patient may have expressed, like Nancy Cruzan, while competent. See, e.g., Gray Vv. Romeo, 697 F. Supp. 580, 587-88 (D.R.I. 1988) ; In re Grant, 109 Wash. 2d 545, 747 P.2d 445, 457 (1987) (en banc), modified, 757 P.2d 534 (1988); Jobes, 529 A.2d at 444; Conroy, 486 A.2d at 1229; In re Storar, 420 N.E.2d 156, 159 (Del. Ch. 1980). Long used in the administration of the estates of incompetent per- sons, see Ex parte Whitbread in re Hinde, a Lunatic, 35 Eng. Rep. 878 (1816), the principle of substituted judgment has regularly been applied in cases involving medical treatment as the best means of promoting the important underlying value of self-determination. See 1 President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions 180 (1982). 49 The State’s desire to err on the side of life is understandable. But it is a sentiment that we al! share, particularly for those we care most about. Consequently, it is a sentiment that family mem- bers will include in their decisionmaking on behalf of incompetent patients. 38 _ Missouri’s unprecedented exclusion of family members from such a vital decision thus unconstitutionally deprives Nancy Cruzan of her right to have her parents meaning- fully participate in the decisionmaking regarding her cus- tody and to protect her fundamental rights. Ill. THE STATE’S INTEREST IN THE UNQUALIFIED PROTECTION OF LIFE IS NOT SUFFICIENT TO JUSTIFY ABRIDGING PETITIONERS’ RIGHTS, NOR ARE THE STATE’S MEANS OF PROTECTING THAT INTEREST NARROWLY TAILORED. In reversing the decision of the state circuit court, the Missouri Supreme Court relied exclusively on its “un- qualified” interest in life. Pet. App. A25, A29. The es- sence of its ruling is that a presumption in favor of pro- longing treatment for all patients in a persistent vegeta- tive state, which is rebuttable, if at all, only by means of a formal directive, is the only way adequately to protect the interests-ofthose patients and of severely handicap- ped and other vulnerable citizens. The State’s abstract commitment to life, however, is insufficient to outweigh the patient’s right to have life-prolonging treatment with- drawn. In addition, the State’s legitimate interest in protecting incompetent and severely handicapped patients can be fully protected by other means far less harmful to fundamental liberties. A. The State’s Abstract Interest In Protecting The Sanctity Of Life Does Not Outweigh An Individ- ual’s Right To Have Life-Prolonging Treatment Withdrawn. The very existence of a fundamental right to refuse life-prolonging treatment means that the state’s contrary interest in preserving life is not dispositive. To justify abridging a fundamental right, the state’s interest must be “unrelated” to preventing individuals from exercising that right. United States v. O’Brien, 391 U.S. 367, 377 (1968). 39 The State’s interest in protecting the health, safety and ultimately the lives of all of its citizens is well-established. In Prince v. Massachusetts, 321 U.S. 158 (1944), for example, the Court held that the state’s interest in the welfare of minor children was a compelling basis for up- holding a state child labor law that infringed on parental freedom to direct a child’s activities. In that case, as in others upholding state intervention in otherwise personal and family matters,®® courts have found compelling the state’s need to protect the interests of the individual against interference by other family members. In this case, however, the State has misconceived the legitimate bounds of its role as protector of the rights of the individual whose treatment is at issue. The State claims an interest in assuring Nancy Cruzan “a life of relatively normal duration.” Pet. App. A26. Yet this interest has no meaning for Nancy Cruzan, except in- sofar as it appears she would have wanted such a life. Unlike a minor child whose life lies before her or a se- vercly handicapped person who has at least some con- sciousness or prospect for consciousness, Nancy Cruzan will never become aware of her existence and her envi- ronment. There is thus no prospective benefit to her from continued treatment. Furthermore, in the same way that her ongoing treatment does not currently “burden” her, see Pet. App. A36-A37, the prolongation of her life through artificial means does not benefit her, for she is aware of neither her “burden” nor even her “life.” It is only with reference to what medical care Nancy Cruzan would have wanted, therefore, that we can assess today whether the treatment now being provided her can meaningfully be said to further her interests. The Missouri Supreme Court also relied, apart from its concerns about Nancy Cruzan, on its general interest in prolonging life. Pet. App. A25-A26, A36-A37. In this 50 See, e.g., Jehovah’s Witnesses v. King County Hosp., 278 F. Supp. 488 (W.D. Wash. 1967), aff'd, 390 U.S. 598 (1968); In re Ivey II, 319 So.2d 53 (Fla. Dist. Ct. App. 1975). 40 regard, some have argued that providing food and water to all individuals is a matter of overriding symbolic im- portance, crucial to the preservation of a caring and com- munal society. See, e.g., Callahan, On Feeding the Dying, 13 Hastings Ctr. Rep. 22, 22 (Oct. 1983). The argument has force, but, for several reasons, is ultimately unper- suasive. First, the argument essentially begs the question. The issue is whether the caring and communal qualities of a society would lead it to respect a patient’s desire to have artificial nutrition and hydration withdrawn. The uni- versally accepted duty of society to provide for those who want to be fed, which is a cornerstone of the symbolic ar- gument, does not obviously translate into an obligation to impose tube feeding on those for whom it is unwelcome and who are “no longer able personally to prevent what is being done to [their] bodies.” Gardner, 534 A.2d at 955. Respect for the desire of a patient to have artificial nutrition and hydration withheld in the event of perma- nent unconsciousness serves the same fundamental and symbolic purpose that the provision of food and water to vulnerable individuals serves in other contexts. Society values the provision of food and water to other vulnerable individuals because it prevents suffering, promotes re- spect for individual dignity and integrity and shows that a person’s misfortunes and dependent circumstances are no reason to deny the staples of existence. But this con- cern is rooted, ultimately, in concern for the individual as a person. That concern strongly counsels that society acquiesce in the judgment of the patient that the greater compassion, respect and concern for her humanity will be achieved by withdrawing technologically supplied nutri- ents. That society should have a different response to the permanently unconscious reflects the fact that the sym- bolic importance of providing food and water to those in need arose out of a different historical context than the 4} one in which this case has arisen. For generations, the provision of food and water to those in need meant the provision of food and water to those who consciously sought it because they suffered from hunger and thirst. It is only recently, within the past 20 years, that advances in cardiopulmonary resuscitation have enabled society to re- cover and maintain heartbeats in individuals who will never be able to feed themselves again or feel hunger or thirst. Historically, it was essential to provide nutrients as a means to the recovery of health and the prevention of suffering. When a patient’s unconsciousness becomes permanent, however, the provision of nutrients cannot serve either of these ends. In sum, by insisting on treatment for persistent vege- tative state patients without regard to their individual wishes and preferences, the state is protecting not the in- dividual’s interest, but rather its abstract commitment to life. In effect, the State is using one person without her consent to further general interests that could be fully protected without sacrificing her dignity and autonomy.” Such action is antithetical to the respect for individual autonomy that is “implicit in the concept of ordered lib- erty.” Palko v. Connecticut, 302 U.S. 319, 325 (1937). The utilitarian goals that the State seeks to advance in this case can all be fully met, and in some cases better served, by procedures that do not abrogate the funda- mental dignity and autonomy of the individual patient. B. Missouri’s Decision To Exclude As Inherently Un- reliable All Evidence Of Patient Preferences That Are Not Formally Recorded Is Broader Than Nec- ecessary To Avoid Arbitrary Decisionmaking. In devising a legal framework in which decisions re- garding life-prolonging treatment are made, states prop- erly have an interest in adopting rules that “respect the 51 See, e.g., I. Kant, Critique of Practical Reason, part I, II, 2, reprinted in M. Adler & C. Van Doren, Great Treasury of Western Thought 570 (1977) (every person is “an end in himself [and] can never be used merely as a means by any”). 42 - right to self-determination and yet protect incompetent patients” from decisions inconsistent with their views. Jobes, 529 A.2d at 437. But the rule adopted by the Missouri Supreme Court to exclude as “inherently un- reliable” (Pet. App. A43) all evidence of a patient’s pref- erences that is not formally recorded goes far beyond what is necessary—and in fact is inconsistent with—its asserted goal of avoiding arbitrary treatment decisions. Although the Missouri Supreme Court does not ex- pressly discuss the evidence in the record supporting the Circuit Court’s judgment that Nancy Cruzan would not have wanted to be sustained for decades by an artificial feeding apparatus (see Pet. App. A37), the evidence in the record is precisely the sort that is likely to be available in most cases and that must be considered if any genuine attempt is to be made to determine the patient’s wishes. The evidence includes testimony concerning Nancy’s statements about never wanting to live in a persistent vegetative state as well as her family’s testimony that, based on their knowledge of her, they believe she would choose to have her nutrition and hydration withdrawn. Her statements were not made aimlessly, but were point- edly made in response to recent deaths in her and in a friend’s family. They are comparable to statements relied on by other courts as persuasive evidence of a patient’s preference. E.g., Gardner, 534 A.2d at 953. The Missouri Supreme Court’s decision to dismiss all of this evidence as inherently unreliable in order to “err on the side of preserving life” unconstitutionally restricts the patient’s right to a decision consistent with her pref- erences. Amici do not dispute the state’s basic preroga- tive to adopt a presumption in favor of treating incom- petent patients whose treatment preferences are truly un- 52 See, e.g., Tr. 388-402 (conversation with housemate 13 months before accident in which Nancy said she would never want to live in a persistent vegetative state); Tr. 536-63 (two conversations with sister in which Nancy said it is better in some instances to die than to endure life with serious disabilities). 43 known and unknowable. But in the guise of erring on the side of life, the State is in fact imposing on Nancy Cruzan its own judgment about what treatment she should have, and that judgment is squarely at odds with everything the record tells us about what she would have wanted. Far from protecting incompetent patients from arbitrary deci- sions to cut off treatment against their wishes, Missouri’s rule guarantees that treatment will be imposed against the wishes of many people who have.never formally re- corded their preferences. Other states have devised means that are far less de- structive of these basic liberties but that still serve to protect incompetent patients from decisions they would not have wanted made. Some have used heightened evi- dentiary standards to evaluate the patient’s statements regarding treatment.®® Some require a court to consider whether an ombudsman or guardian ad litem should be appointed to assess what weight to place on family testi- mony and to guard against the possibility of a conflict of interest."* States should have latitude to experiment with various procedures and standards. But the pro cedures they adopt must not be so strict that, like the standard adopted below, they nullify for all practical pur- poses the individual’s right to refuse life-sustaining treat- ment.®® See generally Rhoden, Litigating Life and Death, 102 Harv. L. Rev. 375 (1988). 53 See, e.g., In re Gardner, 534 A.2d 947 (Me. 1987) (adopting clear and convincing standard) ; In re Westchester County Medical Center, 72 N.Y.2d 517, 531 N.E.2d 607 (1988); In re Jobes, 108 N.J. 394, 529 A.2d 434, 443 (1987); Leach v. Akron General Medi- cal Center, 68 Ohio Misc. 1, 426 N.E.2d 809 (1980). 54 See, e.g., Jobes, 529 A.2d at 434, 447 (guardian needed oniy if there are no close family members and patient has not left clear and convincing evidence of wishes) . 55 For example, although the Court need not reach the issue to de- cide this case, amici note that a clear and convincing evidence stand- ard, while appropriate for the medical diagnosis of whether a pa- tient is in a persistent vegetative state, is potentially so strict a standard for evaluating patient wishes as to nullify the exercise 44 C. Protection Of A Persistent Vegetative State Pa- tient’s Right To Have Life-Prolonging Treatment Withdrawn Does Not Undermine The State’s In- terest In Protecting Severely Handicapped Persons. Although the State professes an interest in protecting the right of the patient whose treatment is in question, its overriding concern is with the implications of its deci- sion for other cases involving severely handicapped and other vulnerable persons. The Missouri Supreme Court’s decision is premised on the view that to create a rule applicable only to persons in a persistent vegetative state is to make a “quality of life’ determination, and that such determinations pose the danger that “persons with all manner of handicaps might find the state seeking to terminate their lives.” Pet. App. A29 (emphasis added). This view reflects the Missouri Supreme Court’s failure to appreciate the significance of patient autonomy as a limiting principle against state abuses. So long as the principle of autonomy is the touchstone of decision mak- ing, handicapped persons who wish to have treatment pro- longed will have that treatment prolonged with the full support of the medical community. The Court’s un- founded fear that state action to terminate lives is a possible consequence of allowing a patient to exercise vd right to have treatment withdrawn arises only bec: : the state erroneously equates state protection of tat of the right. Such nullification would occur if the standard oper- ates to limit the exercise of the right to those who had formally recorded their views. An evidentiary standard that requires an individual to prove by clear and convincing evidence that he wants done what the vast majority of citizens would want done, see, e.g., Jobes, 529 A.2d at 446-47 n.11, raises significant due process con- cerns. See Addington v. Texas, 441 U.S. 418 (1979). Most courts that have adopted a clear and convincing standard have avoided these problems, however, by finding that evidence other than formal and explicit directives are sufficient to meet the relevant standard of proof. See, e.g., In re Gardner, 534 A.2d 947 (Me. 1987) ; Foody v. Manchester Memorial Hospital, 40 Conn. Supp. 127, 482 A.2d 713, 720-21 (1984). 45 patient’s right with state endorsement of a general policy of withholding life-prolonging treatment. In fact, the Missouri-Supreme Court’s inadequate pro- tection of patient autonomy poses the greatest danger to handicapped and vulnerable patients. As the tragic history of human experimentation teaches us, a State’s willingness to impose treatments without due regard for a person’s autonomy gravely threatens society’s most vul- nerable persons."” The power of the autonomy principle in protecting vul- nerable individuals is apparent in the cases where courts have intervened on behalf of a minor child. When parents have refused to give consent for the performance of such life-saving measures as a blood transfusion for their minor child, courts have not hesitated to order such measures." The autonomy principle provides clear sup- 56 Amici do not believe that the logical or necessary extension of this principle of autonomy is to “honor” an individual’s wish to commit suicide. All relevant final appellate decisions, as well as Opinion 2.20, recognize a legal and moral distinction between the withdrawal of life-prolonging medical treatment, including nutri- tion and *dration, and homicide or assisted suicide. See, e.g., In re Gardner, 534 A.2d at 956 (the “decision not to receive such [artificial feeding] procedures, far from constituting suicide, is a choice to allow to take its course the natural dying process set in motion by his physiological inability to chew or swallow”); In re Conroy, 98 N.J. 321, 486 A.2d 1209, 1224 (N.J. 1985) (“Refusing medical intervention merely allows the disease to take its natural course; if death were eventually to occur, it would be the result, primarily, of the underlying disease, and not the result of a self- inflicted injury.”) See also May, The Right To Die and the Obliga- tion to Care, in Death and Decision (E. McMillan ed. 1978) 111, 126-28 (distinguishing suicide because, inter alia, it fundamentally expresses a felt need for complete transformation in life that can usually be achieved through therapy and care). “7 See generally J. Katz, Experimentation With Human Beings (1972) (discussing human experiments conducted without consent on Jews, Blacks, and chronically ill patients). 58 See, supra, note 50; see also Custody of a Minor, 375 Mass. 733, 379 N.E.2d 1053, 1063 (1978) (ordering chemotherapy treatment 46 port for such decisions, because such interventions are essential to enable the child to become an independent decisionmaker.” Furthermore, the law’s historic presumption that “nat- ural bonds of affection lead parents to act in the best interests of their children” provides the appropriate point of departure. Parham V. J.R., 442 U.S. 584, 602 (1979). As the Court explained in Parham: That some parents “may at times be acting against the interests of their children” . . . creates a basis for caution, but is hardly a reason to discard whole- sale those pages of human experience that teach that parents generally do act in the child’s best interests. . . The statist notion that governmental power should supersede parental authority in all cases be- cause some parents abuse and neglect children is repugnant to the American tradition. Id. at 602-03 (emphasis in original). So too, in this case, the fact that some patients “may not be surrounded by the loving family with which [Nancy] is blessed.” Pet. App. Al0, is hardly a reason to deny Nancy and her family a fair opportunity to implement her right to have treatment withdrawn. for a child with leukemia when parents sought to use laetrile, and where chemotherapy was the only reasonable treatment that could save the child’s life); In re Vasko, 238 A.D. 128, 263 N.Y.S. 552, 555 (1933) (ordering eye-removal operation for a child whose ma- lignant growth would otherwise result in death). 5° It is true that the autonomy principle alone does not provide a complete answer in cases in which the patient has never been competent and has no prospect of competency. See, e.g., Saikewicz, 370 N.E.2d 417, (treatment decision for person severely retarded at birth who had no prospect of attaining competency). But the mere existence of a more difficult case is no reason to abandon the core principle of autonomy which fairly reconciles the individual and governmental interests in cases involving patients who are or who have been competent, and whose rights of autonomy are mean- ingful and therefore must be of first importance. a 47 D. The Supreme Court Of Missouri Erred In Ignoring The Substantial Impact Of Its Decision On The Practice Of Medicine. The Missouri Supreme Court acknowledged that other state courts in analogous cases had considered the impact on the ethical practice of medicine as part of the assess- ment of the state’s interest. Pet. App. A25, citing Brophy, 497 N.E.2d at 634. Without explanation, however, the court below held that this interest was irrelevant to its decision here. Pet. App. A25. Amici submit that the Missouri Supreme Court’s decision poses a threat of serious harm to the integrity of the doctor/ patient rela- tionship and the practice of medicine. The “core of professional physician ethics” since the time of Hippocrates has been the principle that the physician acts for the benefit of the patient. R. Veatch, A Theory Of Medical Ethics 22 (1981). See also Cassell, “What Is the Function of Medicine,” in Death and Deci- sion 35, 43 (E. McMullin ed. 1978) (for most of its history, medicine has functioned to preserve patient au- tonomy). This traditional understanding is embodied in the first of the seven Principles of Medical Ethics adopted by the American Medical Association, which form the framework for ethical opinions such as Opinion 2.20, App. at la. The AMA’s First Principle states that “[a] physician shall be dedicated to providing competent med- ical service wich compassion and respect for human dig- nity.” Council on Ethical and Judicial Affairs, American Medical Association, Current Opinion ix (1989). With the rapid advance in medical technology in this century, the importance of such a principle to the sound practice of medicine cannot be overemphasized. See Wanzer, Federman, et al., 320 New Eng. J. Med. at 844. The very existence of and momentum behind such tech- nology can generate an imperative that technology be used for its own sake, rather than for the benefit of the patient. The inevitable effect of such an imperative is to decrease the patient’s trust in the physician, and to 48 impede the—physician’s efforts to carry out his funda- mental responsibility to serve the patient. Such are the risks presented here. The State of Mis- souri has insisted that physicians provide a patient with medical treatment that neither the patient nor the family wishes to have provided. This eventuality was not ex- plained to the family, however, at the time they gave consent to the physician surgically to place the gas- trostomy tube in Nancy Cruzan. Having authorized such treatment in order to give her every possible chance at recovery, Nancy Cruzan’s parents now find themselves powerless to stop treatment that no longer serves its original purpose, and that they know their daughter would not have wanted. Such a result only exacerbates the distance and fear created by “the technologically complicated medical environment that often surrounds” the dying patient, id., and increases the likelihood that, out of fear of losing control of their fate, patients and guardians will refuse consent for procedures that could have usefully served them. In the final analysis, the chief threat to the ethical practice of medicine lies not in tech- nological advances in treatment but in the imposition and continuation of such treatment without due regard for the comfort, dignity and autonomy of the patient. Physicians will always strive vigorously to assist those who want help in their struggle against death. Neverthe- less, the reality of modern science is that some patients, though permanently unconscious and thus without hope of recovery, can be sustained solely by means of medical treatment. and sophisticated technology. For these pa- tients, the ultimate judgment about the proper course of medical care should be made by those most directly af- fected—the patient or surrogate—and not by the state based on an abstract commitment to sustaining “life” in all cases. CONCLUSION The judgment of the Missouri Supreme Court should be reversed. s 7 49 Respectfully submitted, KIRK B. JOHNSON Rex E. Lee * EDWARD B. HIRSHFELD CARTER G. PHILLIPS DAVID ORENTLICHER ELIZABETH H. Esty AMERICAN MEDICAL ASSOCIATION MARK E. HADDAD 535 North Dearborn Street SIDLEY & A ~TIN Chicago, Illinois 60610 172? “ye Street, N.W. (312) 645-4600 Washington, D.C. 20006 ELIZABETH M. GALLUP (202) 429-4000 AMERICAN ACADEMY OF JACK R. BIERIG FAMILY PHYSICIANS SIDLEY & AUSTIN 8880 Ward Parkway 1 First National Plaza Kansas City, Missouri Chicago, Illinois 60603 64114-2797 (312) 853-7000 (800) 274-2237 RUSSELL M. PELTON BRENDA A. BESWICK PETERSON, Ross, SCHLOERB & SEIDEL (Counsel to the American Association of Neurological Surgeons) 200 East Randolph Drive Chicago, Illinois 60601 (312) 861-1400 PAUL G. GEBHARD DouG.Las J. PoLK VEDDER, PRICE, KAUFMAN & KAMMHOLZ (Counsel to the American College of Surgeons) 222 North LaSalle Street Chicago, illinois 60601-1003 (312) 609-7500 LAURIE R. ROCKETT HOLLYER, JONES, BRADY, SMITH, TOXELL, BARRETT & CHIRA (Counsel to the American Medical Women’s Association, Inc.) 342 Madison Avenue New York, N.Y. 10173 (212) 818-1110 HENRY HART HAZEL, THOMAS, FISKE, BECKHORN & HANES (Counsel to the American Society for Parenteral and Enteral Nutrition) 3110 Fairview Park Drive Suite 1400 Falls Church, Virginia 22042 (703) 641-4200 September 1, 1989 * Counsel of Record APPENDIX ee en ee a waevtee mat la APPENDIX AMERICAN MEDICAL ASSOCIATION Opinion 2.20 Withholding or Withdrawing Life-Prolonging Medical Treatment (formerly Opinion 2.18) Reprinted from Council on Ethical and Judicial Affairs, American Medical Association, Current Opinions 13 (1989) The social commitment of the physician is to sustain life and relieve suffering. Where the performance of one duty conflicts with the other, the preferences of the pa- tient should prevail. If the patient is incompetent to act in his own behalf and did not previously indicate his pref- erences, the family or other surrogate decisionmaker, in concert with the physician, must act in the best interest of the patient. For humane reasons, with informed consent, a physi- cian may do what is medically necessary to alleviate se- vere pain, or cease or omit treatment to permit a termi- nally ill patient to die when death is imminent. However, the physician should not intentionally cause death. In deciding whether the administration of potentially life- prolonging medical treatment is in the best interest of the patient who is incompetent to act in his own behalf, the surrgoate decisionmaker and physician should con- sider several factors, including: the possibility for ex- tending life under humane and comfortable conditions; the patient’s values about life and the way it should be lived; and the patient’s attitudes toward sickness, suffer- ing, medical procedures, and death. Even if death is not imminent but a patient is beyond doubt permanently unconscious, and there are adequate 2a safeguards to confirm the accuracy of the diagnosis, it is not unethical to discontinue all means of life-prolonging medical treatment. Life-prolonging medical treatment includes medication and artificially or technologically supplied respiration, nutrition or hydration. In treating a terminally ill or permanently unconscious patient, the dignity of the pa- tient should be maintained at all times. (I,III,IV,V) 3a AMERICAN ASSOCIATION OF NEUROLOGICAL SURGEONS—POSITION STATEMENT THE WITHDRAWAL OF MEDICAL TREATMENT Neurosurgery finds itself at the center of social change with regard to the deliberate withdrawal of support sys- tems from patients who are terminally ill. The following recommendations are presented for consideration in these matters: 1. It is of central importance to have as much certainty in the diagnosis of both terminal illness and irreversi- ble coma as possible. Consultation should be obtained where appropriate and whatever confirmatory tests are necessary to establish the diagnosis should be per- formed. 2. If the patient is competent, his or her wishes should be honored. If the neurological surgeon cannot in good faith do this, the appropriate course is to find another neurological surgeon to assume the patient’s care. 3. If the patient is incompetent, major consideration should be given to what the patient would have wanted or, if that cannot be ascertained, to what the patient’s surrogate would have wanted. If the pa- tient’s wishes cannot be ascertained, the guiding principle should be what the neurological surgeon feels is best for the patient. 4. The actual decision-making process is best done by the patient’s family or surrogate in concert with the neurological surgeon. If there is an_ institutional group for helping to make such decisions it can be used. 5. “The withdrawal of care” in terminally ill or perma- nently comatose patients can be used to mean many courses of action. There are situations where an in- stitution’s legal counsel should be consulted before 4a any definitive action is taken. The decision-making process, however, should remain between the neuro- logical surgeon and family. Adopted by the AANS Board of Directors May, 1987 . The AANS Board of Directors adopted a resolution on April 1, 1989 to support the position of the Peti- tioners in the matter of NANCY BETH CRUZAN, by her parents and co-guardians, LESTER L. and JOYCE CRUZAN v. ROBERT HARMON, Director of Missouri Department of Health, and DONALD LAMKINS, Administrator of the Missouri Rehabili- tation Center at Mount Vernon. _— ; ; 4 i ; — > LOOP KE has oe Oy vO EP ene, 5a MISSOURI STATE MEDICAL ASSOCIATION HOUSE OF DELEGATES Resolution #14 (A-89) Introduced by: Cape Girardeau County Area Medical Society Subject: Right to Forego Life Support Referred to: Reference Committee on Constitution and Bylaws WHEREAS, the decision to withdraw artificial hydra- tion and/or nutrition (tube feeding) from terminally ill or irreversibly comatose patients should be allowed when directed by the patient, family, medical proxy, or by prior ‘Living Will” declaration of-the patient; and WHEREAS, Section 459.010(3) of the “Missouri Dec- laration on Life Support (Living Will)” prohibits with- drawal of artificial nutrition/hydration and is clearly an infringement upon the rights of the individual by the State of Missouri; and WHEREAS, many states along with the President’s Commission on Biomedical Ethics (1983) have favored “Health Care Surrogate” legislation over “Living Will” laws (459.010-459.030) to preserve patients’ right of self-determination when decision making capacity is lost; therefore, be it RESOLVED, that the Missouri State Medical Associa- tion calls upon the Legislature of the State of Missouri to delete the phrase in section 459.010/3) of the “Mis- souri Declaration on Life Support” which defines provid- ing artificial hydration or nutrition (tube feeding) as “not being a death-prolonging procedure’”’; and be it fur- ther 6a RESOLVED, that the Missouri State Medical Associa- tion support additional legislation which affirms the rights of Missouri citizens to appoint a “Health Care Surrogate”. This individual(s) could be chosen by a com- petent patient to act as his/her medical proxy making health care decisions when patient decision making capac- ity is lost. Such duly appointed medical proxies should have power to approve or refuse any and all medical treatment, including food and water provided by artificial means (tube feeding), when the burdens of such treat- ment outweigh the benefits and/or such treatment would violate the wishes of the patient as known by the proxy. Missouri physicians therefore support prompt legisla- tive approval of a Health Care Surrogacy Act or its equivalent to help insure our citizens’ right of self- determination ; and be it further RESOLVED, upon passage of satisfactory health care surrogate legislation and deletion of the restrictive phrase in Section 459.019(3), MSMA will support and publicize the value of such legislative changes to Missouri citizens and to physicians and health related professions; and be it further RESOLVED, that ethical decisions such as the right to refuse treatment be left to individual, family and/or Health Care Surrogate, and not to the State. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0463%3A22. Public record. Not legal advice.