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

In the Supreme Court of the United States “7

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 OF CERTIORARI TO THE MISSOURI SUPREME COURT

BRIEF OF MISSOURI HOSPITALS, HOSPITAL

ETHICS COMMITTEES, MEDICAL SCHOOLS, HOS-

PITAL CHAPLAINS, HOSPICE ORGANIZATION

AND LAW PROFESSORS AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

*Mark A. THORNHILL JOHN C. SHEPHERD

Peccy F. SCHMITT KENNETH W. BEAN

E. J. HOLLAND, JR. SHEPHERD, SANDBERG &

CHARLES F. MYERS PHOENIX, P.C.

SPENCER FANE Britt & One City Centre,

BROWNE Suite 1500 _

1000 Walnut Street, St. Louis, MO 63101

Suite 1400 (314) 231-3332

Kansas City, MO 64106

(816) 474-8100

*Counsel of Record

September 1, 1989

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

TABLE OF CONTENTS

a” EIT A aS IE RD II

STATEMENT OF INTEREST OF THE AMICI

> TEI pesecosesnnceaspediniiitdidbepdatunsedaestsineresnnishobataessteansedtateniiaane 1

SUMMARY OF ARGUMENT 000. 8

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II

TABLE OF AUTHORITIES

Cases:

Bowen v. American Hospital Association, 476 U.S.

EE EEE ES SOc 11

Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert.

denied, 409 U.S. 1064 (1972) —........22.02..2...ccceceeceeeeeee 11

Davis v. Hubbard, 506 F.Supp. 915 (N.D. Ohio 1980) 12

Griswold v. Connecticut, 381 U.S. 479 (1965) _.......... 14

Hartke v. McKelway, 707 F.2d 1544 (D.C. Cir.), cert.

Gomes, Ge US. Gee (E088) .......................................... 12

In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985) ....... 24

In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987) _...... 19

In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987) ....... 14,17

In re Roe, 383 Mass. 415, 421 N.E.2d 40 (1981) _...... 17

Lambert v. Park, 597 F.2d 236 (10th Cir. 1979) ...... 12

Large v. Superior Court, 148 Ariz. 229, 714 P.2d 399

ES 12

Lojuk v. Quandt, 706 F.2d 1456 (7th Cir. 1983), cert.

denied, 474 U.S. 1067 (1986) —...00.. ene... 13

Meyer v. Nebraska, 262 U.S. 390 (1923) ..................... 8, 12

Parham v. J.R., 442 U.S. 584 (1979) 00. 13, 14

Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674

REG Ee 9, 21

Skinner v. Oklahoma, 316 U.S. 535 (1942) —................ 12

Superintendent of Belchertown State School v. Saike-

wicz, 373 Mass. 728, 370 N.E.2d 417 (1977) -~............... 15

Thompson v. Oklahoma, 487 U.S. ........ , 108 S.Ct. 2687

lk teat sada cndscenetemsnanpenaneccnnnmnnnane sailesinii 9,13

Thornburgh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747 (1986) —.... 11

III

Union Pacific Ry. Co. v. Botsford, 141 U.S. 250 (1891)

United States v. Charters, 829 F.2d 479 (4th Cir. 1987),

modified on other grounds, 863 F.2d 302 (4th Cir.

1988)... aca aleiadesidedaaintaiaabébedsoniinsmnadiennsisadaubinimesevrniacaunianvel 8,12

Youngberg v. Romeo, 457 U.S. 307 (1982) 0.000... 9,13

Statutes:

Mo. Rev. Stat. § 334.100.2(4) (1986) 20000000... 19

Mo. Rev. Stat. § 459.010.3 (1986) 200000. 18

Mo. Rev. Stat. § 475.120.2 (1986) 200000. 21

Mo. Rev. Stat. § 475.120.3 (1986) 0000 nn. 20, 21

Other:

President’s Commission for the Study of Ethical Prob-

lems in Medicine and Biomedical and Behavioral

Research, Deciding To Forego Life-Sustaining Treat-

TIN 50 intaidesniddaubainnsnssidninsssennaninnbess sooncisepasesinsete 24

ee

No. 88-1503

In the Supreme Court of the United States

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 oF CERTIORARI TO THE MISSOURI SUPREME COURT

BRIEF OF MISSOURI HOSPITALS, HOSPITAL

ETHICS COMMITTEES, MEDICAL SCHOOLS, HOS-

PITAL CHAPLAINS, HOSPICE ORGANIZATION

AND LAW PROFESSORS AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

STATEMENT OF INTEREST OF THE

AMICI CURIAE

This brief is submitted on behalf of Missouri institu-

tions and persons who focus either on health care or the

2

law.’ The health care amici include Missouri hospitals,

hospital ethics committees, medical schools and health care

professionals. The law amici are comprised of Missouri

law professors.

The amici represent differing missions and profes-

sions. They share, however, the conviction that the court

below wrongly decided the petition of Nancy Cruzan’s

family. The amici are convinced that Nancy Cruzan

should be allowed to die in accordance with her wishes

and with dignity. Further, the amici believe the de-

cision of the court below is incompatible with responsible

and ethical medical practice. The decision below directly

affects the day-to-day practice of many of the amici and

is of the utmost concern to all who participate in this

brief. Consequently, the amici urge this Court to reverse

the decision of the Missouri Supreme Court.

The health care amici include twenty-seven Missouri

hospitals or hospital ethics committees. Collectively, the

hospitals provide more than 6,900 beds to Missourians in

need of care. The participating hospitals are located

throughout the state and include urban research and

teaching facilities as well as rural regional medical centers.

The participating hospitals and hospital ethics committees

are:

Audrain Medical Center, Mexico

Barnes Hospital, St. Louis

Bethesda General Hospital, St. Louis

Center for Health Care Ethics of St. Louis University

Medical Center, St. Louis

Central Medical Cenier, St. Louis

1. The parties to this litigation have consented to the filing

of this Amici Curiae Brief via letters on file with the Clerk.

Dexter Memorial Hospital, Dexter

Heartland Hospital West, St. Joseph

Heartland Hospital East, St. Joseph

Independence Regional Health Center Ethics Com-

mittee, Independence

John Fitzgibbon Memorial Hospital, Marshall

Kirksville Osteopathic Medical Center, Kirksville

Lakeside Hospital, Kansas City

Madison Memorial Hospital, Fredericktown

McKune-Brooks Hospital, Carthage

Medical Center of Independence, Inc., Independence

Metropolitan Medical Center, St. Louis

Moberly Regional Medical Center, Moberly

North Kansas City Hospital, North Kansas City

Oak Hill Hospital, Joplin

Ozark Medical Center, West Plains

Perry County Memorial Hospital, Perryville

St. Francis Medical Center, Cape Girardeau

St. Louis Children’s Hospital, St. Louis

St. Luke’s Hospital, Kansas City

Southeast Missouri Hospital, Cape Girardeau

Springfield Park Central Hospital, Springfield

The Jewish Hospital, St. Louis .

Trinity Lutheran Hospital Ethics Committee, Kansas

City

The Biomedical Ethics Committee of Hutzel Hospital,

Detroit Medical Center, Detroit Michigan, also

participates

4

Two Missouri medical schools—one public and one

private—also participate in this brief. The medical schools

provide instruction to nearly 1,000 students every year.

The participating medical schools are:

The University of Missouri-Columbia School of Med-

icine, Columbia

The University of Health Sciences College of Osteo-

pathic Medicine, Kansas City

The health care amici also include the Missouri Chap-

lains’ Association, a Missouri hospice care group, Hospice

Care of the VNA in Kansas City, and Stockhoff Memorial

Nursing Home in Fredericktown. These amici provide

counseling and care to many thousands of Missourians

each year. The chaplains work at state hospitals, prisons

and mental health institutions as well as at private hos-

pitals. The hospice care personnel offer services ranging

from skilled nursing care to death-and-dying counseling

to terminally ill persons and their families.

The law amici are sixty-four Missouri law professors.

The law professor-participants are members of the faculty

at Missouri’s two public and two private law schools. The

law professor-participants are:

Herbert Eastman

Susan FitzGibbon

Barbara Gilchrist

Roger Goldman

Jesse Goldner

Thomas Greaney

John Griesbach

Alan Howard

Sandra H. Johnson

Rochelle Kaskowitz

Terry Lueckenhoff

Josef Rohlik

Peter Salsich, Jr.

Gene Schultz

Eileen Searls

Alan Weinberger

Michael Wolff

Amy Ziegler

All of St. Louis University

Douglas Abrams

Robert Bailey

Susan Csaky

Melody Daily

Peter Davis

Kenneth Dean

David Fisher

Timothy Heinsz

William Henning

Edward Hunvald

Candice Johnson

Nanette Laughrey

Michael Middleton

Leonard Riskin

Richard Tyler

George Wallach

All of the University of Missouri-Columbia

David Achtenberg

William B. Anderson

Mark Berger

Jeffrey Berman

Corinne Cooper

Dennis Corgill

Robert C. Downs

Robert Hayman

Edwin T. Hood

Christopher Hoyt

Patrick D. Kelly

Mary Kay Kisthardt

Nancy Levit

Douglas O. Linder

Joan Mahoney

Robert Popper

John Ragsdale

Pat Randolph

Ellen Suni ~*

G. Ray Warner

All of the University of Missouri-Kansas City

Susan Applecon

Merton Bernstein

M. Susan Carlson

John Drobak

Thomas Glassberg

Michael Greenfield

Laura Mellas

Bernard D. Reams, Jr.

Robin Wellford

Debra Carlson Wood

A! lof Washington University

7

The decision of the majority of the Missouri Supreme

Court eliminates the ability of families, in consultation

with physicians, to order withdrawal of certain meuical

treatment. The Missouri court did not focus on the fact

that medical treatment often is commenced only because

there then exists some reasonable hope for the patient’s

recovery. Under the decision of the Missouri court, treat-

ment must continue even after the hope of recovery or

improvement in the patient’s condition is foreclosed. This

rule applies even though it is subsequently determined

that the medical treatment has absolutely no positive

effect for the patient.

The amici object to the Missouri court’s decision to

reject a person’s right to die with dignity, in favor of an

amorphous state interest in continuing life devoid of any

emotions, sensory perceptions or other cognitive func-

tions. The amici believe that if the decision below is af-

firmed, families and thyir physicians may decline to ini-

tiate medical treatment where the probability is low that

the patient will recover. The amici also fear that the

decision below may force the initiation of aggressive

medical treatrnent for incapacitated terminally-ill patients,

contrary to the patient’s expressed wishes. The Missouri

court’s decision thus makes the patient a prisoner of med-

ical treatment and places an overwhelming burden on

the patient’s family as they cope with the death of a loved

one, artificially extended for an indeterminate time.

The decision below also may restrict the ability of

competent persons to declare the medical treatment they

desire for the prolongation of their life and the circum-

stances under which they want nature’s course to prevail.

The individual’s rights to make these decisions are rooted

8

in our common and constitutional law, yet the majority

below appears to have disregarded the importance of the

individual’s protected rights in favor of a rigid scheme of

forced treatment.

The amici believe the decision below, if affirmed,

would fundamentally alter the traditional practice of pro-

viding meaningful medical treatment consistent with the

patient’s desires. Forcing treatment on a patient who

cannot respond is contrary to the tenets subscribed to by

the health care amici. Removing the input of family mem-

bers from medica] treatment decisions, on behalf of the

persons they love and best know, is contrary to the legal

and ethical principles held by all the amici.

For these reasons, and the reasons stated below, the

amici urge this Court to reverse the decision of the Mis-

souri Supreme Court.

SUMMARY OF ARGUMENT

I. A. All persons possess the right of self-determination,

which includes the right to control over one’s own person.

Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).

Implicit in this right is the right to choose whether to

accept or reject offered medical treatment. The Four-

teenth Amendment’s protection of traditional liberty in-

terests, Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923),

grants constitutional protection of this common law right

to be free from unwarranted state interference. Lower

courts have held this liberty interest to include the right

to refuse medical treatment. United States v. Charters,

829 F.2d 479, 491 (4th Cir. 1987), modified on other

grounds, 863 F.2d 302 (4th Cir. 1988).

9

B. Incompetency does not deprive a person of con-

stitutional rights. Youngberg v. Romeo, 457 U.S. 307.

315-16 (1982). The rights of persons unable to exercise

choice “are only meaningful as they are exercised by

agents acting with the best interests of their principals

in mind.” Thompson v. Oklahoma, 487 U.S. ....... , 108 S.Ct.

2687, 2693 n. 23 (1988). Traditionally, family members, as

the persons most familiar with the values and beliefs of

the incompetent person, have acted as surrogate medical

treatment decisionmakers. ~

II. A. The court below erred in its balancing of the

common law and constitutional rights of Nancy Cruzan

and the interests of the state. Ms. Cruzan is in a persistent

vegetative state (also, “PVS”). The Missouri court re-

duced her rights by narrowly defining what constituted a

burden to her and by ignoring both her previously ex-

pressed values and beliefs and whether the medical treat-

ment was of any benefit to her. The Missouri court then

excessively elevated the state’s interest in life, finding that

interest “unqualified”, and ignored the state’s interest in

the integrity of the medical profession, whose stated posi-

tion supports the decision urged by the petitioners. The

result of the court’s “balancing” test is predetermined:

a person in a PVS must submit to all life-sustaining treat-

ment in furtherance of the state’s “unqualified” interest

in life.

B. The Missouri court further erred in holding that

guardians do not possess the authority to refuse medical

treatment on behalf of a ward. The right to consent to

medical treatment must include the reciprocal right to

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

674, 688 (1987) (en banc). The lower court’s interpreta-

tion of a guardian’s authority prevents the recognition

and exercise of the ward’s constitutional rights. 4

10

III. The decision of the Missouri court severely distorts

the process by which medical treatment decisions will be

made in Missouri. If surrogates are denied the right to

withdraw medical treatment once a diagnosis of persistent

vegetative state is confirmed, they may feel compelled to

refuse consent to the initiation of treatment. Further,

physicians may be reluctant to recommend the initiation

of treatment if their recommendation must include the

caveat that the treatment may never be withdrawn.

The decision below may also create the risk that per-

sons in a PVS in Missouri will become the victims of

medical technology. Surrogates, physicians or the state

may believe that they are now required to provide such

persons any and all medical treatment that could further

the state’s “unqualified” interest in life, regardless of

whether the patient benefits from the prolongation of life

in a vegetative state. -

~

The Missouri court’s decision also has effects beyond

those for patients in a PVS. As a result of the decision,

it is unclear whether a competent person can effectively

declare a refusal of medical treatment, to be effective in

the event of future incompetency. The decision also

clouds the ability of Missouri guardians to exercise the

common law and constitutional rights held by their wards.

11

ARGUMENT

I. ALL PERSONS HAVE A RIGHT TO ACCEPT

OR REJECT MEDICAL TREATMENT.

A. The Right To Accept Or Reject Medical

Treatment Arises From The Common Law

And Constitutional Lav.

This Court has long recognized the cummon law right

of self-determination. In Union Pacific Ry. Co. v. Bots-

ford, 141 U.S. 250, 251 (1891), the Court explained that

the right commits to each citizen “the possession and

control of his own person.” The court found self-deter-

mination to be paramount among the people’s rights and

privileges. Id.

The right of self-determination includes each person’s

right to accept or reject medical treatment. This right has

been identified as the source of the doctrine of informed

consent:

The root premise is the concept, fundamental in

American jurisprudence, that “[e]very human being

of adult years and sound mind has a right to deter-

mine 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) citing Schloendorff v. Society

of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914,.”

Implicit in the doctrine of informed consent is the right

of each person to balance the benefits and the burdens of

offered medical treatment in light of the person’s uniq‘e

2. Recent opinions of this Court have also recognized the

doctrine-.of informed consent. See e.g., Bowen v. American

Hospital Association, 476 U.S. 610 (1986); Thornburgh v. Amer-

ican College of Obstetricians & Gynecologists, 476 U.S. 747, 803

(1986) (White, J. dissenting).

12

Situation. Hartke v. McKelway, 707 F.2d 1544, 1548-49

(D.C. Cir.), cert. denied, 464 U.S. 983 (1983); Lambert v.

Park, 597 F.2d 236, 237 n. 1 (10th Cir. 1979).

The patient’s right to accept or reject medical treat-

ment also has constitutional foundations. The due process

clause of the Fourteenth Amendment serves to protect

the liberty interest of citizens from unwarranted inter-

ference by the state. Meyer v. Nebraska, 262 U.S. 390,

399-401 (1923); Skinner v. Oklahoma, 316 U.S. 535, 541-43

(1942). Lower courts have found that the liberty interest

protects citizens from state interference in their medical

treatment decisions:

The right to be free of unwanted physical invasions

has been recognized as an integral part of the in-

dividual’s constitutional freedoms, whether termed a

liberty interest protected by the Due Process Clause,

or an aspect of the right to privacy contained in the

notions of personal freedom which underwrote the

Bill of Rights. The right to refuse medical treatment

has been specifically recognized as a subject of con-

stitutional protection.

United States v. Charters, 829 F.2d 479, 491 (4th Cir. 1987)

(footnotes omitted), modified on other grounds,863 F.2d

302 (4th Cir. 1988). Davis v. Hubbard, 506 F.Supp. 915,

929 (N.D. Ohio 1980); Cf. Large v. Superior Court, 148

Ariz. 229, 714 P.2d 399, 406 (1986) (en banc) (protection

guaranteed by liberty interest of state constitution’s due

process clause).

B. The Right Te Accept Or Reject Medical

Treatment Extends To Incompetent Persons.

A person’s right to accept or reject medical treatment

does not hinge on that person’s competency or present

13

ability to exercise the right. Thus, this Court has recog-

nized that an incompetent person, involuntarily committed,

retains liberty interests under the due process clause of

the Fourteenth Amendment, including the right to be

free from bodily restraint. Youngberg v. Romeo, 457 U.S.

307, 315-16 (1982). Similarly, this Court has recognized

that a retarded child “has a substantial liberty interest

in not being confined unnecessarily for medical treatment

..” Parham v. J.R., 442 U.S. 584, 600 (1979).

Incompetent persons, however, are by definition in-

capable of asserting the right to refuse medical treatment.*

Consequently, an incompetent person’s rights should be

“exercised by agents acting with the best interests of

their principals in mind.” Thompson v. Oklahoma, 487

_ ee , 108 S.Ct. 2687, 2693 n. 23 (1988). This Court’s

directive in Thompson previously was applied in the con-

text of medical treatment decisions:

[A] patient’s incompetency should not deprive him

of a liberty interest in “making” treatment decisions.

Such a rule would have the absurd result of granting

less protection to those incompetent patients who are

in greater need of it. It is of course evident that a

patient who is by definition incompetent will not

really be able to “make” these decisions on his own.

But this simply means that someone else acting in

the patient’s best interests will have to make the de-

cision for him.

Lojuk v. Quandt, 706 F.2d 1456, 1466 (7th Cir. 1983), cert.

denied, 474 U.S. 1067 (1986).

3. An exception to this rule exists in the case of advance

directives, such as a “living will”, executed while the presently

incompetent person was competent. No such formalized advance

directive is involved in this case.

14

Medical treatment decisions for incompetent persons

usually are made by the closest family member, or a con-

sensus of the close family members. The practice is sup-

ported by decisions of this Court recognizing the im-

portance of the family structure in our society. See e.g.,

Parham v. J.R., 442 U.S. 584, 602 (1979); Griswold v.

Connecticut, 381 U.S. 479, 496 (1965). The practice has

been expressly approved by the New Jersey Supreme

Court based on its understanding that family members

are most familiar with the values previously expressed by

the incompetent person and are most concerned with the

best interests of that person: ~

Family members are best qualified to make substi-

tuted judgments for incompetent patients not only

because of their peculiar grasp of the patient’s ap-

proach to life, but also because of their special bonds

with him or her. Our common human experience in-

forms us that family members are generally most

concerned with the welfare of a patient. It is they

who provide for the patient’s comfort, care, and best

interests, (citations omitted), and they who treat the

patient as a person, rather than a symbol of a cause.

In re Jobes, 108 N.J. 394, 529 A.2d 434, 445 (1987) (right

of patient in irreversibly vegetative state to determine

whether to refuse life-sustaining medical treatment may

be exercised by family or close friend).

The designation of a surrogate decisionmaker may

occur informally, on the basis of the health care pro-

fessionals’ knowledge of the family structure, or formally

through a guardianship appointment. Whether desig-

nated formally or informally, the surrogate decisionmaker

determines whether to accept or reject medica] treatment

15

under the substituted judgment doctrine. The goal of

this doctrine is that:

the decision . . . should be that which would be

made by the incompetent person, if that person were

competent, but taking into account the present and

future incompetency of the individual as one of the

factors which would necessarily enter into the deci-

sion-making process of the competent person.

Superintendent of Belchertown State School v. Saikewicz,

373 Mass. 728, 370 N.E.2d 417, 431 (1977).

The courts have recognized for many years the in-

dividual’s right to reject medical treatment. That right

extends to incompetent persons and traditionally is ex-

ercised for the incompetent person by close family mem-

bers. The Missouri Supreme Court ignored these con-

stitutional rights and traditional values. As a result, it

erred in rejecting the Cruzan family’s request to exer-

cise their daughter’s right to be free of unwanted med-

ical treatment.

Il. THE DECISION BELOW VIOLATES NANCY

CRUZAN’S COMMON LAW AND CONSTITU-

TIONAL RIGHT TO REJECT MEDICAL

TREATMENT.

A. Nancy Cruzan’s Right To Refuse Medical

Treatment Includes The Right To Have A

Decision Made By Her Family.

Nancy Cruzan is in a persistent vegetative state

(also, “PVS’’) from which she has no hope of recovery.

Through her partially functioning brain stem, she is able

to breathe without assistance, but she has lost the abil-

16

ity to swallow food or water. She is totally and per-

manently unconscious and has lost all capacity for thought

and sensation.

Nancy Cruzan is absolutely powerless to assert any

control over her own medical treatment. Her inability

to assert control, however, does not strip her of the right

to accept or reject medical treatment. Nancy retains

the right to medical treatment decisions consistent with

her values and beliefs; only the method by which the

right is exercised changes. Joe and Joyce Cruzan, as

Nancy’s parents, are the persons best able to assert her

right to accept or refuse medical treatment.

The court below held “that the co-guardians do not

have authority to order the withdrawal of hydration

and nutrition to Nancy.” Cruzan, Pet. App. at A42. In

so holding, the Missouri Supreme Court has deprived

Nancy Cruzan of the right to have her medical treat-

ment decisions made by those persons most familiar with

her value system and most concerned about her best

interest.

In reaching its conclusion, the Missouri court pur-

ported to construct a “balancing” test, weighing the

burdens from continued treatment against the state’s in-

terest in continued life. In fact, the court engaged in

no meaningful examination ot what it viewed to be com-

peting interests of Nancy and the state.

In analyzing the Cruzan family’s request, the Mis-

souri court held that “we do not believe the care pro-

vided by artificial hydration and nutrition is oppressively

burdensome to Nancy in this case.” Cruzan, Pet. App.

at A37 (emphasis in original). Thus, the Missouri court

ruled that the only issue on Nancy’s side of the balance

17

is whether the continued nutrition and hydration is pain-

ful to her. Since, by definition, persons in a PVS can not

experience pain, no medical treatment could ever be

found to be “oppressively burdensome” to them.

The Missouri court ignored many factors which

should have entered Nancy’s side of the balance. Cer-

tainly patients, or their surrogates, facing important med-

ical treatment decisions focus on the efficacy of proposed

treatment, the post-treatment effect on their body and

spirit and the burdens which the proposed treatment will

place on their family.’ These factors are considered in

connection with the likelihood that the patient will ap-

preciate some benefit from the treatment. The Missouri

court, however, could not identify any benefit the contin-

uation of medical treatment can have for a person who

has existed in a persistent vegetative state for over six

years. In fact, the court admitted that “the evidence is

clear and convincing that Nancy will never interact mean-

ingfully with her environment again.” Cruzan, Pet. App.

at A34.

5. Other state courts have recognized that a surrogate

decisionmaker “might consider the patient’s likely attitude toward

the impact of his or her choice of medical treatment on his or

her loved ones... .” In re Jobes, 108 N.J. 394, 529 A.2d 434,

444 n. 10 (1987); see, In re Roe, 383 Mass. 415, 446, 421 N.E.2d

40, 58 (1981):

An individual who is part of a closely knit family would

doubtless take into account the impact his acceptance or

refusal of treatment would likely have on his family. Such

a factor is likewise to be considered in determining the

probable wishes of one who is incapable of formulating or

expressing them himself. In any choice between proposed

treatments which entail grossly different expenditures of

time or money by the incompetent’s family, it would be ap-

propriate to consider whether a factor in the incompetent’s

decision would have been:the desire to minimize the burden

on his family.

18

The Missouri court “balanced” the other side of its

scale only with the state interest in preserving life.

Cruzan, Pet. App. at A25. The court found this interest

to be “unqualified”. Cruzan, Pet. App. at A33.° Given

the lower court’s narrow view of what can be a burden

to Nancy and its expansive view of the state’s interest

in the preservation of life, the outcome of the “balancing

test” is predetermined: a patient in a persistent vegeta-

tive state must submit to the continuation of all life-sus-

taining medical treatment. The court incorrectly found

that the state’s interest in life is “unqualified,” and then

relied on that finding as justification for usurping the

traditional approach taken by physicians and patients, or

patients’ surrogates, in making medical treatment deci-

sions."

In identifying an exclusive state interest, the Missouri

court found unimportant the state’s interest in the in-

tegrity of the medical profession. This is contrary to the

6. The majority’s conclusion of the state’s “unqualified”

interest in life was challenged by a dissenting justice of the

Missouri Supreme Court:

The very exisience of capital punishment demonstrates a

relativity of values by establishing the proposition that

some lives are not worth preserving. Furthermore, the

“Living Will” statute, which the majority finds to be “an

expression of the policy of this state with regard to sanctity

of life,” in fact allows and encourages the pre-planned ter-

mination of life.

Cruzan, Pet. App. at A49 (Blackmar, J., dissenting).

7. In reaching its conclusion regarding the state’s “un-

qualified” interest in life, the Missouri court considered as rele-

vant evidence, part of the Missouri “Living Will” statute. The

court focused on the statute’s exemption of “any procedure to

provide nutrition or hydration” from those death-prolonging

medical procedures which a competent person may refuse in

the event of future incompetency. Mo. Rev. Stat. § 459.010.3

(1986). Cruzan, Pet. App. at A29. The court’s focus was im-

proper because the statute’s exemption violates the common law

and constitutional right of competent persons to exercise choice

concerning future medical treatment decisions.

19

express findings of the New Jersey Supreme Court. In

re Farrell, 108 N.J. 335, 529 A.2d 404, 410-11 (1987)

(right to refuse medical treatment must be balanced with

the state’s interest in the preservation of life, the preven-

tion of suicide, the protection of innocent third parties,

and the integrity of the medical profession). Further, the

Missouri court’s view is inconsistent with the Missouri

statute authorizing revocation of a physician’s license for

“unethical conduct,” Mo. Rev. Stat. § 334.100.2(4) (1986).

The Missouri court’s disregard of the state’s interest

in ethical medical practice has been criticized by the Mis-

souri State Medical Association (“MSMA”). The MSMA

believes the decision below is irreconcilable with conduct

which its members believe to be appropriate. On April

15, 1989, the MSMA adopted a resolution titled “Right to

Forego Life Support” (Appendix A). The resolution

states, in part:

[T]he decision to withdraw artificial hydration and/or

nutrition (tube feeding) from terminally ill or irre-

versibly comatose patients should be allowed when

directed by the patient, family, medical proxy, or by

prior “Living Will” declaration of the patient; .. .

RESOLVED, that ethical decisions such as the right

to refuse treatment be left to the individual, family

and/or Health Care Surrogate, and not to the state.

The members of the MSMA also adhere to all opinions

issued by the American Medical Association’s Ethical and

Judicial Counsel, including AMA Statement 2.18, issued

in 1986. The AMA Statement acknowledges that

Even if death is not imminent but a patient’s coma

is beycnd doubt irreversible and there are adequate

safeguards to confirm the accuracy of the diagnosis

20

and with the concurrence of those who have respon-

sibility for the care of the patient, it is not unethical

to discontinue all means of life-prolonging medical

treatment.

It is clear that recognition of Nancy Cruzan’s right

to refuse medical treatment is consistent with the ethical

positions adopted by Missouri physicians. The Missouri

court’s decision to force treatment on Nancy, or any other

person in a PVS, compromises these positions and compels

Missouri physicians to violate their own tenets regarding

ethical practice.

Nancy Cruzan has a right to refuse medical treat-

ment and that right may be exercised by her family,

guided by Nancy’s values and beliefs. Although Nancy’s

right is not absolute and may be balanced against recog-

nized state interests, the Missouri court seriously erred

in its balancing. The court erred by discounting an in-

competent person’s common law and constitutional right

to refuse medical treatment, by excessively elevating the

state interest in life and by ignoring the ethical integrity

of the medical profession. Had the Missouri court prop-

erly weighed the individual rights and state interests, it

would have found the balance to be in Nancy’s favor.

B. Nancy Cruzan’s Right To Refuse Medical

Treatment Is Not Altered By The Appoint-

ment Of Her Parents As Co-Guardians.

The Missouri court disposed of the Cruzan family’s

request to terminate Nancy’s medical treatment by ref-

erence to a portion of the Missouri guardianship statute,

Mo. Rev. Stat. § 475.120.3 (1986). The court stated that

“(t]he statute makes no provision for the termination

of medical treatment.” “Cruzan, Pet. App. at A39.

21

The Missouri court ignored, however, the section of

the guardianship statute providing that “[a] guardian

or limited guardian of an incapacitated person shall

act in the best interest of the ward.” Mo. Rev. Stat.

§ 475.120.2 (1986). Implicit in this charge is the prin-

ciple that the guardian must have discretion to choose,

among the available alternatives, that option which the

guardian believes to be in the ward’s best interest. Among

those options is the option to decline medical treatment.

Furthermore, the Missouri court essentially ruled

that the guardian may not exercise any judgment in

performing the statutory duties to “[a]ssure that the

ward receives medical care” and to “provide required

consents on behalf of the ward’’. Mo. Rev. Stat. § 475.120.3

(1986). The Missouri court’s interpretation turns guard-

ians into mere state functionaries, obligated to seek out

all medical care which could possibly serve to further

the state’s “unqualified” interest in life, regardless of

the impact on the ward.®

The Missouri court’s decision also is in conflict with

standard principles and practices of obtaining informed

consent to medical treatment. The right to consent to

8. The Arizona Supreme Court, addressing the issue of

whether a guardian’s right to consent to treatment on behalf

of ; : ward i~cluded the right to refuse or withdraw treatment,

held:

In our opinion, the right to consent or approve the delivery

of medicai care must necessarily include the right to con-

sent to or approve the delivery of no medical care. To

hold otherwise would, as the Washington and Minnesota

supreme courts observed, ignore the fact that oftentimes a

patient’s interests are best served when medical treatment

is withheld or withdrawn.

Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674, 688 (1987)

(en banc). The court found that the guardian “had the im-

plied, if not express, statutory authority to exercise [the ward’s]

right to refuse medical treatment.” Id.

22

medical treatment must, by necessity, confer the recip-

rocal right to refuse medical treatment. This right to

refuse is not forfeited by the guardianship process. It

may be asserted by the guardian, on behalf of the ward,

either when the treatment is first proposed or after

treatment has been initiated if it becomes apparent that

continuation of the treatment is not in the ward’s best

interest.

In support of its opinion that the guardianship stat-

ute confers no right to refuse or withdraw medical treat-

ment, the Missouri court considered the source of the

guardian’s authority to decide. The court found that:

“la] guarditam’s-power to exercise third party choice

arises from the state’s authority, not the constitu-

tional rights of the ward. The guardian is the del-

egatee of the state’s parens patriae power.

Cruzan, Pet. App. at A41 citing In re Link, 713 S.W.2d

487, 493 (Mo. 1986) (en banc). This interpretation of

a guardian’s role serves to defeat the very essence of the

guardianship process: to ensure that decisions are made

in the ward’s best interest. Taken to its logical con-

clusion, a guardian in Missouri now is required -to act

in the state’s best interest, ignoring the common law

and constitutional rights of the ward whenever there

is a conflict between the best interest of the ward and

the state’s “unqualified” interest in life. Such results

clearly violate the constitutional rights of the ward and

are not permissible.

The function of the surrogate medical decisionmaker.

whether informally designated or formally appointed

under a guardianship statute. is to make certain that

the rights and best interests of the incapacitated person

23

are protected. Whether such protection is accomplished

by accepting or rejecting specific medical treatment is

a situation-dependent determination. The type and

amount of information available to the surrogate deci-

sionmakers will differ with each incompetent person for

whom decisions must be made - from specific statements

concerning the desire not to be maintained on specific

types of artificial life-sustaining treatment when no chance

of recovery remains, to general statements concerning

attitudes toward life and death. The determination is

best made by family members or friends in closest con-

tact with the incapacitated person, in consultation with

the physicians responsible for that person’s care.

Ill. THE DECISION TELOW SEVERELY DIS-

TORTS MEDICAL TREATMENT DECISIONS

IN MISSOURI.

The Missouri court severely distorted the process of

making medical treatment decisions in Missouri. Given

the uncontroverted fact that a person in a PVS cannot

experience pain and therefore cannot be “burdened” as

that term is defined by the majority below, there is

nothing to be “baianced” on behalf of such person against

the state’s interest in life. The decision below essentially

requires that a person in a persistent vegetative state

submit to the continuation, and perhaps even the institu-

tion, of all medical treatment that could be classified as

life-sustaining, in furtherance of the state’s interest in life.

The adverse consequences of the Missouri court’s de-

cision in this case are significant and varied. In fact, the

opinion may serve to accomplish the exact opposite of its

purported goal: fear of not being able to withdraw life-

sustaining treatment may lead physicians and family mem-

24

bers to err on the side of not treating an incapacitated

patient when the chances for recovery are uncertain. This

danger was recognized by a court presented with a guard-

ian’s request to remove a gastrostomy tube on behalf of

a comatose patient:

Moreover, from a policy standpoint, it might well be

unwise to forbid persons from discontinuing a treat-

ment under circumstances in which the treatment

could permissibly be withheld. Such a rule could

discourage families and doctors from even attempting

certain types of care and could thereby force them

into hasty and premature decisions to allow a patient

to die.

In re Conroy, 98 N.J. 321, 486 A.2d 1209, 1234 (1985).

See also, President’s Commission for the Study of Ethical

Problems in Medicine and Biomedical and Behavioral Re-

search, Deciding To Forego Life-Sustaining Treatment 75

(1983), (“An even more troubling wrong occurs when a

treatment that might save life or improve health is not

started because the health care personnel] are afraid that

they will find it very difficult to stop the treatment if,

as is fairly likely, it proves to be of little benefit and

greatly burdens the patient.”).

Decisions of whether to institute, continue or with-

draw a given medical treatment should be made on the

basis of the best information currently available to the

physician and the surrogate decisionmakers. As the in-

competent person’s condition changes, or more information

concerning his or her condition becomes available, the ap-

propriateness of particular medical treatment will change.

Physicians and surrogate decisionmakers should not be

forced to consider, as one of the risks of instituting medical

treatment, the risk of never being allowed to withdraw

25

that treatment. The right to consent to treatment on be-

half of an incompetent person must contain the right to

withdraw the treatment when to do so serves the best

interests of that person.

The decision below also creates the risk that a person

in a PVS will become the prisoner of medical technology.

The Missouri court’s ruling may require that persons in

a persistent vegetative state receive all medical treatment

that could in any way further the state’s interest in that

person’s life. Since the person will not be “burdened”

by the treatment, the state’s interest in life will always

tip the scale in favor of treatment.

Although the majority below purports to limit its

holding to the narrow facts presented,® the opinion has

effects reaching far beyond those for patients in a PVS.

The Missouri court’s finding that the state’s interest in

life is “unqualified” has implications for competent per-

sons attempting to exercise the right to refuse life-sustain-

ing medical treatment - either directly while competent

or through an advance directive to be used in the event

of incompetency. Under the court’s “balancing test”, it

is unclear whether even a competent person’s effort to

exercise the right to refuse medical treatment could out-

weigh the state’s interest in preservation of life.

The opinion also has significant effects on the ability

of guardians to exercise rights of wards who are not in a

PVS. Under the Missouri court’s interpretation, a guard-

ian’s role in medical treatment decisionmaking is limited

to assuring that the ward receives medical care and to

9. The majority stated that “[a] single issue is presented:

May a guardian order that all nutrition and hydration be with-

held from an incompetent ward who is in a persistent vegetative

state, who is neither dead withir the meaning of Section 194.005,

RSMo 1986, nor terminally ill?” Cruzan, Pet App. at A6.

26

providing all required consents. The guardian has no dis-

cretion to refuse any care on behalf of the ward, and

arguably, will now be required to obtain and consent to

all medical care which has the slightest chance of prolong-

ing the ward’s life without causing pain. The court’s

finding that the guardian’s power arises from the state’s

authority, and not the constitutional rights of the ward,

essentially deprives all wards in Missouri of the exercise

of all constitutional rights.

Decisions concerning whether to initiate, continue or

withdraw life-sustaining medical treatment on behalf of

an incompetent person are extremely complex and per-

sonal. They require the consideration of a multiplicity of

factors, ranging from the incompetent patient’s medical

condition to his or her value system. These decisions have

traditionally been made by the patient’s family in con-

junction with the advice and information provided by the

treating physicians and, if available, the hospital ethics

committee. Incompetent patients have common law and

constitutional rights in this decision-making process.

Those rights may not be violated by state courts’ or legis-

latures’ attempt to draw bright-line rules.

27

CONCLUSION

For the foregoing reasons, and those stated in the

briefs of petitioners and other amici, the judgment of the

Missouri Supreme Court should be reversed.

Respectfully submitted,

*Mark A. THORNHILL

Preccy F. ScHMITT

E. J. HOLLAND, Jr. .

CHARLES F. Myers

SPENCER FANE Britt & BROWNE

1000 Walnut Street, Suite 1400

Kansas City, Missouri 64106-2140

(816) 474-8100

JOHN C. SHEPHERD

KENNETH W. BEAN

SHEPHERD, SANDBERG & PHOENIX, P.C.

One City Centre, Suite 1500

St. Louis, Missouri 63101

(314) 231-3332

Counsel for amici Missouri Hos-

pitals, Hospital Ethics Commit-

tees, Medical Schools, Hospital

Chaplains, Hospice Organization

and Law Professors

*Counsel of Record

September 1, 1989

~

ee

Al

APPENDIX

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

hydration and/or nutrition (tube feeding) from ter-

minally ili 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

Declaration on Life Support (Living Will)” prohibits

withdrawal of artificial nutrition/hydration and is

clearly an infringement upon the rights of the indi-

vidual by the State of Missouri; and

WHEREAS, many states along with the Presi-

dent’s Commission on Biomedical Ethics (1983) have

favored “Health Care Surrogate” legislation over

“Living Will” laws (459.010-459.030) to preserve pa-

tients’ right of self-determination when decision

making capacity is lost; therefore, be it

A2

RESOLVED, that the Missouri State Medical

Association calls upon the Legislature of the State of

Missouri to delete the phrase in section 459.010(3)

of the “Missouri Declaration on Life Support” which

defines providing artificial hydration or nutrition

(tube feeding) as “not being a death-prolonging pro-

cedure”; and be it further

RESOLVED, that the Missouri State Medical As-

sociation supports additional legislation which affirms

the rights of Missouri citizens to appoint a “Health

Care Surrogate”. This individual(s) could be chosen

by a competent patient to act as his/her medical

proxy making health care decisions when patient de-

cision making capacity 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 feed-

ing), when the burdens of such treatment outweigh

the benefits and/or such treatment would violate the

wishes of the patient as known by the proxy. Mis-

souri physicians therefore support prompt legislative

approval of a Health Care Surrogacy Act or its equiv-

alent to help insure our citizens’ right of self-deter-

mination; and be it further

RESOLVED, upon passage of satisfactory health

care surrogate legislation and deletion of the restric-

tive phrase in Section 459.010(3), MSMA will sup-

port 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 the individual,

family and/or Health Care Surrogate, and not to

the State.