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

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| FILED.

rs |

(i SEP di 1909

No. 88-1503

a me JR,

CLERK

IN THE L

Supreme Court of the United States

October Term, 1989

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

LESTER L. and JOYCE CRUZAN,

Petitioners,

Vv.

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,

and ADMINISTRATOR OF THE MISSOURI

REHABILITATION CENTER AT MT. VERNON,

Respondents,

THAD C. McCANSE, Guardian ad litem,

Respondent.

On Writ of Certiorari to

the Missouri Supreme Court

BRIEF OF THE

AMERICAN GERIATRICS SOCIETY

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

KEITH R. ANDERSON

Counsel of Record

ANNA MASTROIANNI BOE

Green, Stewart & Farber

2600 Virginia Avenue, N.W.

Suite 1111

Washington, D.C. 20037

202/342-8700

Attorneys for the

Amencan Ge;. atnics Soctety

September 1, 1989

a LS CE IY OR TT ‘

CASILLAS PRFSS, INC. — 1717 K STREET. N.W., WASHINGTON DC 20036 — 225-1220 ’ ry

(i)

TABLE OF CONTENTS

Page

TAMER OF AUTIIOUITIRS ...... 5... ccc cc ccc ccccccccccccs. i

STATEMENT OF INTEREST OF AMICUS CURIAE .......... 1

SUMMARY OF ARGUMENT .............ccccceccuccuccuce. 5

a 6

I. THE STANDARD FOR GOOD MEDICAL

DECISION-MAKING WILL BE COMPROMISED

BY THE RULING OF THE MISSOURI SUPREME

A. All Choices Among Medical Treatments Should

Be Assessed According to the Standard for

Good Medical Decision-Making..................

“

B. The Missouri Supreme Court Failed To

Properly Consider That Artificial Nutrition

And Hydration Are Forms of Medical

fT ES Oo a an 10

II. PURSUANT TO A RIGHT OF PRIVACY OR A

LIBERTY INTEREST UNDER THE DUE

PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT, THE CONSTITUTION PROTECTS

THE INDIVIDUAL’S RIGHT TO FORGO LIFE-

SUSTAINING MEDICAL TREATMENT................ 15

lil. THE RIGHT OF AN INCOMPETENT PATIENT

TO FORGO LIFE-SUSTAINING MEDICAL TREAT-

MENT MUST BE EXERCISED BY A SURROGATE

DECISION-MAKER TO PREVENT EVISCERATING

, EER ren ee ene 19

IV. IN CRUZAN, THE MISSOURI SUPREME COURT

IMPROPERLY FORMED AND APPLIED THE

BALANCING OF THE PATIENT’S CONSTITUTIONAL

RIGHT AND THE STATE’S INTEREST SO AS TO

IMPINGE UNJUSTIFIABLY ON THIS CONSTITU-

TIONALLY PROTECTED RIGHT .................205- 21

EE cc ct thc GUuuebaaetebhis Céne Web becadunsseees 28

(ii)

TABLE OF AUTHORITIES

Cases: Page

Aiken v. Clary,

308 S.W.28 GBB Gile. BOGID ...nccdecsccsccscnseuneeennee 17

Application of the President and Directors of

Georgetown College, Inc. 33 F.2d 1000, cert. denied,

SIT U.S. GHB COBO. . ooo cccvcceccccsesseseueeeuee 25

Barber v. Superior Court,

147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983) ........... 21

Bartling v. Superior Court,

163 Cal. App. 3d 186, 209 Cal. Rptr. 220 (1984) ...... 15, 22, 25

Bee v. Greaves,

744 F.2d 1387 (10th Cir. 1984), cert. denied, 469 U.S.

BOBS CIBTD 2... cccccccccccccsccccscaseeeuuen anna 15

Benton v. Maryland,

S58 UB. FEB CBGRD. «oc cccccsscccessecacceueuneee 16

Bouvia v. Superior Court,

179 Cal. App. 3d .127, 225 Cal. Rptr. 297 (1986) ........ 15, 25

Bowers v. Hardwick,

698 U.S. 106 CORED ..w oc ccccccvccceccstseuene 16, 19

Brophy v. New England Sinai Hosp.,

398 Mass. 417, 497 N.E.2d 626 (1986) ....... 11, 15, 22, 25, 26

Brune v. Belinkoff,

354 Mass. 102, 235 N.E.2d 793 (1968) .............-2---eee- Q

Carey v. Population Services Int'l,

438 U.S. GIB CRBTT) .. nc cccccvcccecccccenseube nme 19

Cobbs v. Grant,

8 Cal. 3d 229, 104 Cal. Rptr. 505, 502 P.2d 1 (1972) ........ 17

Davis v. Hubbard,

506 F. Supp. 915 (N.D. Ohio 1980) ..................-. 17, 18

(iii)

. Page

Delio v. Westchester County Medical Center,

129 A.D.2d 1, 516 N.Y.S.2d 677 (App. Div. 1987)............ 25

Douthitt v. United States,

491 F. Supp. 891 (E.D. Mo. 1980) ........................ 17

Duncan v. Louisiana

LE 16

Eisenstadt v. Baird,

CE ES 17, 19, 20

Foody v. Manchester Memorial Hosp.,

40 Conn. Supp. 127, 482 A.2d 713 (Super. Ct. 1984)...20, 22, 25

Genzel v. Halvorson,

248 Minn. 527, 80 N.W.2d 854 (1957) ..................... 17

Gray v. Romeo,

697 F. Supp. 580 (D.R.I. 1988) ................. 11, 15, 16, 17

Gridley v. Johnson,

Ne cc cess ccccccccccccss 4

Griswold v. Connecticut,

nw. ccc cccccccccecs ... 16, 17, 20, 21

Ingraham v. Wright,

Ne. oc ucccccccccceces 16

In re Barry,

445 So. 2d 365 (Fla. Dist. Ct. App. 1984) .................. 20

In re Colyer,

99 Wasn. 2d 114, 660 P.2d 738 (1983) ........... 18, 20, 22, 25

In re Conroy,

98 N.J. 321, 486 A.2d 1209 (1985) .............. 11, 20, 22, 25

In re Drabick,

200 Cal. App. 3d 185, 245 Cal. Rptr. 840,

cert. demied, ___ U.S. ___, 109 S. Ct. 399 (1988) .......... ll

(iv)

Page

In re Farrell, j

) Fee Be Fk | Fo errr 22

In re Gardner,

ie ee ED «ss ac endecdssteedesesuneeean 11

In re Guardianship of Grant, |

109 Wash. 2d 545, 747 P.2d 445 (1987), modified,

_ ge | | Sf Rr rT errr rr 15

In re Guardianship of Hamlin,

102 Wash. 2d 810, 689 P.2d 1372 (1984) ................4... 20

In re Jobes,

108 N.J. 394, 529 A.2d 434 (1987) ............05-505. 11, 21, 26

In re KKB,

ee ee ED gk vn nc nusessntedeeeueseeencoanl 16

In re Peter,

Fre BF Fe FP FPP 11

In re Quinlan, i

70 N.J. 10, 355 A.2d 647, cert. ‘

ED cc cca auaneshabenenusanns 11, 16, 20, 21

In re Spring,

380 Mass. 629, 405 N.E.2d 115 (1980)................-.065. 11

In re Storar,

52 N.Y.2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266,

cert. dented, 454 U.S. 856 (1961) ........... cece eee neee 18, 20

John F. Kennedy Memonal Hospital v. Biudworth,

ee es i eecieeneeun ned 20, 22

Lane v. Candura,

6 Mass. App. 377, 376 N.E.2d 1232 (1978) ..............--. 18

Loving v. Virginia,

Se ee: SD vc od veneeteosenneneencekiaeeeneees 19

(v)

Page

McConnell rv. Beveriy Enterprises,

209 Conn. 692, 553 A.2d 596 (1989) ._... sake deediveee

Michael H. v. Gerald D..,

—_ eee 6 SUL rns 16

Mills v. Rogers.

Se NN ED sas suo cs cu acdcvcecaceecdcocecten 15, 18

Mohr v. Williams,

95 Minn. 261, 104 N.W. 12 (1905) ........................ 37

Moore v. City of E Cleveland,

438 U.S. 466 1977). ............... ‘cuss. ¥eseeecerunueu 16

Palko v. Connecticut,

I coop tone eet 16

Paul v. Davis,

gf RE Ry en eee ee 16. 19

Pratt v. Davis,

224 Ill. 300, 79 N.E. 562 (1906) .......................... 17

Pnnce v. Massachusetts,

ee I I oo 5-5 65a ha Va See bec ce ciccc mabe uncasn. 19

Rasmussen v. Fleming,

154 Ariz. 207. 741 P.2d 674 (1987) ........ . 15, 18, 20. 22. 25

Roe v. Wade,

GP Us ID occ ck dw Wab dv vee vncweccecan 16, 17, 19, 21

Rogers v. Oktn,

oe ee 15

Rogers v. Ok1n,

634 F.2d 650 (1st Cir. 1980) ...... VETS CRY POT es

Rolater 1. Strain,

39 Okla. 572, 137 P. 96 (1913) ...... igh es! Je oree sare

(vi)

Page

Satz v. Perlmutter,

362 So. 2d 160 (Fla. Dist. Ct. App. 1978),

aff'd, 379 So. 2d 359 (Fla. 1980) ...... 0.2... ee ee eee ees 15, 22

Schloendorff v. Society of New York Hospital,

211 N.Y. 125, 105 N.E. 92 (1914), overruled on

other grounds, Bing v. Thunig, 2 N.Y.2d 656,

143 N.E.2d 3, 163 N.Y.S.2d 3 (1957) ............---- eee = 17

Severns v. Wilmington Medical Center, Inc.,

Oe Be Bie Ge, Gs BED cccccecescvecccccccccescsees 20

Skinner v. Oklahoma ex rel. Williamson,

en a eee chi hicanee seus ¥ONeA 19

Snyder v. Massachusetts,

cade cncccessbseunsenvesesosennes 16

Stanley v. Georgia,

nn nd cac chant cousekeeureceseuccerss 19

Superintendent of Belchertown State School v. Saikewtcz,

373 Mass. 728, 370 N.E.2d 417 (1977) ....... 16, 18, 20, 22, 25

Thompson v. Oklahoma,

ee! ee | UL Pe 20

Tune v. Walter Reed Army Medical Hospital,

Ge FH. B. BE GG. Tie co cece ccccccccccccnenn 22, 25

Union Pacific Ry. Co. v. Botsford,

a a a cope unhenseeebedesen 17

Webster v. Reproductive Health Services,

See § eee ee 17

Wells v. Van Nort,

100 Ohio St. 101, 125 N.E. 910 (1919) ............--- eee 17

Whalen v. Roe,

Ee OD 6 von ccs cneeccureescucccentsfneveveses 19

(vii)

Page

Constitution, Statutes and Regulations:

iin ik cn diey abet daa nacees sane econ 16

Es icin cpendumeceeseebestbeseduvececes 16

oa a ce ae cas euakdacenavvuseacesekh 16

ee Ts esa cub evn sae adwansedenaukdenbacnar 16

U.S. Const. amend. IX .............. ereer reer erry ore Pr rer 16

ee I I ME nce dun ubndceudubevensscacuss 15, 16, 21

Mo. Ann. Stat. § 191.227 (Vernon Supp. 1989)................. 18

Mo. Ann. Stat. § 431.061 (Vernon Supp. 1989)................. 17

Mo. Rev. Stat. § 450.06G(1) (1006)................cccccecees 22

Mo. Ann. Stat. § 475.045 (Vernon Supp. 1989)................. 21

Mo. Ann. Stat. § 475.050 (Vernon Supp. 1989)................. 21

Mo. Ann. Stat. § 491.060 (Vernon Supp. 1989)................. 18

Mo. Ann. Stat. § 565.080 (Vernon 1979) ..................... 17

oe 14

45 C.F.R. § 1340.15(b)(2)(i) (1989)... oo ov cccc cece ceeeee. 27

Miscellaneous:

61 Am. Jur. 2d Physicians, Surgeons and Other

CE cneeedeuueuuce 4

ABA, Advanced Age of the Alleged Incompetent, Report

106 A, B, § II.C, in Summary of Actions of the House

of Delegates: 1987 Annual Meeting (Aug. 1987) ................. 4

(viii)

American Academy of Neurology, Position of the

American Academy of Neurology on Certain Aspects

of the Care and Management of the Persistent

Vegetative State Patient, reprinted in 39 Neurology —

OD CID og ccc cccneccccccccencscussevscecsssccccceces :

American Academy of Neurology, Bnef of the American

Academy of Neurology as Amicus Curae in Support of

the Petition, Cruzan v. Director of Missoun Dept. of

Health, on Petition for a Writ of Certioran to the ”

Supreme Court of the State of Missouri (No. 88-1503) Pea eawae

American College of Physicians Ethics Manual, 6

111 Annals Internal Med. 327 (1989) ........ 6... 6c eee eee eens

American College of Physicians, Parenteral Nutrition in

Patients Receiving Cancer Therapy, 110 Annals Internal “

Dlad, TBE CIGED) 2... ccc ccc ccc ccccccceneseveccencccccess

rican Dietetic Association, Position of the Amencan

powers Association: Issues in Feeding the Terminally III

Adult, 87 ADA Reports 78 (1987) .........--00000ee seen eeeees

American Medical Association Council of Ethical and

Judicial Affairs, Current Opinions of the Council on

Ethical and Judicial Affairs of the American Medical —

Association (1986) ...........cee cece cece erence eee eeeees ’

American Nurses’ Association, Committee on Ethics:

American Society for Parenteral and Enteral Nutrition,

Standards for Nutrition Support: Hospitalized Patients ee

Gam. 1986) 0... cece ccc eccvcccnccncvncncceccrscseccccrees

Baines, Control of Other Symptoms, in The Management -

of Terminal Disease (1978) ....... 0-00-0020 eee e eee ener nes

Baines, Control of Other Symptoms, in The Management ”

of Terminal Malignant Disease (2d ed. 1984) .....-.------+++>>

(ix)

Billings, Comfort Measures for the Terminally Ill: Is

Dehydration Painful?, 33 J. Am. Geriatrics Soc’ y

PB A8 0 ode EP UAKneand ke ibeheeG-c Ki vbbkscoceccceees

Buchanan, The Limits of Proxy Decistonmaking for

Incompetents, 29 UCLA L. Rev. 393 (1981)

Callahan, Feeding the Dying Elderly, Generations 15

WE, MI bbs bn Se Weak orl snk o Env 6K ocoe eee gece

Canizaro, Methods of Nutritional Support in the Surgical /

Patient, in Surgical Nutrition 13 (1981) .......................

Capron, /ronies and Tensions in Feeding the Dying,

Hastings Center Report 32 (Oct. 1984) .......................

Carson, The Symbolic Significance of Giving to Eat

and Dnnk, in By No Extraordinary Means 84

PE hai detveri crete

Cohen & Ejisdorfer, Dementing Disorders, in The

Practice of Geriatrics (1986) ................................

Concern for Dying, Brief of Amicus Curiae Concern

for Dying at 9-10, In re Browning, (Fla.) pending

(No. 74-174)

Cox, Is Dehydration Painful?, 9 Ethics and Medics 102

(1987)

ie ere Sie oe eS eee OSCR EROS EO.H 6 6684 Cae Oe kh OES ee eee

Crowther, Management of Other Common Symptoms of

the Terminally Ill, in The Dying Patient (1982) .................

Derr, Why Food and Fluids Can Never Be Withdrawn,

Hastings Center Report 28 (1986) ...........................

Dresser, When Patients Resist Feeding: Medical, Ethical

and Legal Considerations, 33 J. Am. Geriatrics Soc’y

790 (1985)

et Tt he ee! Ce oe hs 2 2 ge a a

Faintauch & Dietel, Complications of Intravenous

Hyperalimentation: Technical and Metabolic Aspects,

in Nutrition in Clinical Surgery (1980)

eee etcese eee ee se 6 oe 6 CCS OD SOD

(x)

Page

Food Drug Cosm. L. Rep. (CCH) 4 41,095

os ch d a Ud el a ee eueuwaseeeees 14

Glover, A Philosophical Analysis of Substitute Dectston-

Making: The Case of Ms. Nancy Cruzan, in 5 Midwest

ER A a ee ere 14

High, All in the Family: Extended Autonomy and

Expectations in Surrogate Decision-Making, 28

Fe a Gy GD oo ce cece necccditccsccccensccccsces 8

Hushen, Questioning TPN as the Answer, 82 Nursing

te ee rake yeseese ees 13

Jahnigen, Hannon, Laxson & LaForce, Jatrogenic

Disease in Hospitalized Elderly Veterans, 30 J. Am.

I BI Ble Do cccccecvscecosccisssccvecccccees 15

Konstantinedes & Shronts, Tube Feeding, Managing

the Basics, Am. J. Nursing 1312 (Sept. 1983).................. 12

Lo & Dornbrand, Guiding the Hand That Feeds,

Caring for the Demented Elderly, 311 New Eng. J.

PE EOE Ee ey eee 15

Lynn & Childress, Must Patients Always be Given

Food and Water?, in By No Extraordinary Means,

I SD os vn cnn creecachuecisendsicsesccasessees 27

Michel, Serrano & Malt, Nutritional Support of

Hospitalized Patients, 304 New Eng. J. Med. 1147 (1981) ....... 12

Norberg, Norberg, Gittert & Bexell, Ethical Conflicts

in Long-Term Care of the Aged: Nutritional Problems

and the Patient-Care Worker Relationship, 1 British

"RS £ Re er Or rrr rT rere rr ee 14

Oliver, Terminal Dehydration, ii Lancet 631 (1984).............. 13

Paris & Fletcher, Withholding of Nutrition and Fluids in

the Hopelessly Ill Patient, 14 Clinics in Perinatology 367 (1987)... .27

(xi)

Page

Physicians’ Desk Reference (1987) ......................-.... 14

President’s Commission for the Study of Ethical Issues

in Medicine and Biomedical and Behavioral Research,

Deciding to Forego Life-Sustaining Treatment (1983) . 3, 7, 8, 21, 27

President’s Commission for the Study of Ethical

Issues in Medicine and Biomedical and Behaviorial

Research, Making Health Care Decisions (1982).......... 3, 6, 7, 8

Rombeau & Caldwell, Enteral and Tube Feeding, in

Clinical Nutrition 1 (2d ed. 1989)

Rosner, Prolonging the Act of Dying, 31 J. Am.

ee 8

Ruark, Raffin & The Stanford University Medical Center

Committee on Ethics, /mitiating and Withdrawing Life

Support: Principles and Practice in Adult Medicine,

318 New Eng. J. Med. 25 (1988) ............... 0... cece eee ee 6

Saunders, Summers & Teller, Hospice: The Living

ME ED a oo hou CU ci Gis ok ca ew eiaks 6-55 ov hoes cae crdes 13

Schmitz & O’Brien, Observations on Nutrition

and Hydration in Dying Cancer Patients, in By No

Extraordinary Means 29 (Lynn ed. 1989) ..................... 11

Silberman & Eisenberg, Parenteral and Enteral

Nutntion for the Hospitalized Patient (1982) ..... BOR Re pete 12

Steinbrook & Lo, Artificial Feeding -- Solid Ground, Not

a Slippery Slope, 318 New Eng. J. Med. 286 (1988) ............ 27

Stell, Gertman, Crescenzi & Panderson, Jatrogenic

Illness on a General Medical Service at a University

Hospital, 304 New Eng. J. Med. 638 (1981) .................. 15

Stroot, Fluids and Electrolytes: A Practical Approach

PE cn Ghde pidbcaddukeurcewstvdde tubeless ceecdioe. 12

(xii)

Page

The Hastings Center, Guidelines on the Termination

of Life-Sustaining Treatment and the Care of the

Dying (1987) ..... 2 ccc cccccccccccccccscccccecesress 3, 6, 7, 37

Tribe ~American Constitutional Law (2d ed. 1988).........-. 23, 26

U.S. Congress, Office of Technology Assessment, Life

Sustaining Technologies and the Elderly, OTA-BA-306 :

EE cin kode ckeedeubecndsGseNebetes bead see vensesees a

Wanzer, Adelstein, Cranford, Federman, Hook, Moertel,

Safar, Stone, Taussig, van Eys, The Physician's

Responsibility Toward Hopelessly Ill Patients, 310 New

Eng. J. Med. 955 (1984) ........... cece eee e eee renee ences 27

Wanzer, Federman, Adelstein, Cassel, Cassem, Cranford,

Hook, Lo, Moertel, Safar, Stone & van Eys, The .

Physician’s Responsibility Toward Hopelessly Ill Patients:

A Second Look, 320 New Eng. J. Med. 844 (1989) ............. 27

Zerwekh, The Dehydration Question, Nursing 47

ie, BOT occ cv ncccencngvnsctssersesvenvessscccsceusses 13

IN THE

Supreme Court of the United States

October Term, 1989

No. 88-1503

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

LESTER-L. and JOYCE CRUZAN,

Petitioners,

Vv.

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH.

and ADMINISTRATOR OF THE MISSO!'RI

REHABILITATION CENTER AT MT. VERNON,

Respondents,

THAD C. McCANSE, Guardian ad litem.

Respondent.

On Writ of Certiorari to

the Missouri Supreme Court

BRIEF OF

THE AMERICAN GERIATRICS SOCIETY

AS AMICUS CURIAF

IN SUPPORT OF THE PETITIONERS

STATEMENT OF INTEREST

OF AMICUS CURIAE

The American Geriatrics Society (AGS) is an organization of physi-

cians and related professional health care providers whose specia!

concern is with the health care needs of elderly persons. The AGS

was founded in 1942 and currently maintains a roster of approx-

imately 5,300 dues-paying members. The AGS sponsors conferences

and seminars, provides for collegial information-sharing, publishes

a pre-eminent professional journal (The Journal of the American

Genatncs Society), and encourages improved health care services

for elderly persons and research on the illnesses from which they

suffer.

The AGS and its members have had a long tradition of concern

about the establishment of standards regarding care of ill or depen-

dent elderly persons. The AGS has tried to assure that even those

elderly persons with severe dependency and limited personal and

community resources gain access to the best possible health and

supportive services. To that end, AGS has placed a high priority

upon encouraging health care providers, the elderly, and their

families to adopt an optimistic and energetic approach to treatment

of illness.

Although Nancy Cruzan is only 32 years old, the ultimate disposi-

tion of the issue in this case will have serious implications for the

care of the elderly. How the Court addresses this issue will deter-

mine substantially the choices available to the elderly to plan the

ways they will live, and particularly the ways they will die. The AGS

urges that all parties involved not lose sight of the tragedy and

poignancy of the experience of suffering patients and families.

In its Position Statement, Medical Treatment Decisions Concer-

ning Elderly Persons, the AGS affirms:

(a) A strong commitment to personal autonomy of

patients;

(b) Both an appreciation of the beneficial potential of

modern medicine and honesty regarding its side ef-

fects and limitations;

(d) A clear recognition of the inevitability of death.

‘App. at la.

Central to the AGS’s commitment to these principles is the pro-

tection of the standard for good medical decision-making. This stan-

dard takes into account the well-being of the patient as understood

according to the patient’s own values and life goals, to the extent

that they can be known. A critical obligation of health care profes-

sionals is to ascertain the potential treatment options for a patient

and, together with the patient or the patient’s representative, deter-

mine which course of action best promotes the patient’s interests.”

In its Position Statement, the AGS states as follows:

Patients’ interests are not always best served by apply-

ing all theoretically beneficial treatments. Instead, the

choice made should reflect that patients often have

legitimate concerns about avoiding suffering, advancing

their occupational or family concerns, mitigating disabili-

ty, and sustaining independence. Particwar medical in-

terventions may not be warranted in light of overall ef-

fects on well being, although they may be expected to

help a particular medical condition.

When patients cannot be informed or cannot reason about

the available options in light of their own preferences and

goals, the physician should, for any important decision

or ambiguous choice, involve someone who knows the

patient and can represent the patient’s wishes in mak-

ing the choice.

*U.S. Congress, Office of Technology Assessment, Life Sustaining

Technologies and the Elderly, OTA-BA-306 141-166 (1987) [hereinafter

OTA]; The Hastings Center, Guidelines on the Termination of Life-

Sustaining Treatment and the Care of the Dying 18-34 (1987) [hereinafter

Hastings Center Guidelines]; President's Commission for the Study of

Ethical Issues in Medicine and Biomedical and Behavioral Research, Mak-

ing Health Care Decisions 15-39 (1982) (hereinafter President's Commis-

sion, Making Health Care Decisions]; President's Commission for the

Study of Ethical Problems in Medicine and Biomedical and Behavioral

Research, Deciding to Forego Life-Sustaining Treatment 43-90 (1983)

[hereinafter President’s Commission, Deciding to Forego).

Caregiving professionals and institutions should make

available to patients a full range of options for treatment,

including the option of supportive care for dying patients.*

Most of the patients served by members of the AGS are individuals

who have long life histories. Over many decades they have developed

an ordered set of preferences, made choices based on religious and

other value commitments, and have been substantially in control

of their own lives. AGS members have been in the forefront of ef-

forts to recognize and respect this fact and have worked to ameliorate

the common age-based abrogation of a person’s authority to con-

tinue to direct the course of his or her life. AGS is committed to

protecting the authority of the patient to make choices concerning

future medical care, including the forgoing of artificial nutrition and

hydration, regardless of whether decision-making capacity may

become impaired.

The question of forgoing nutritional support is of particular con-

cern to elderly patients. There are common conditions among the

elderly, such as stroke and dementia, in which patients can be main-

tained through the medical provision of nutrition and hydration for

long periods. Elderly patients are also especially likely to suffer from

the side effects of providing nutritional support including

rehospitalizations, restraints, infections, and bedsores. Some might

reasonably choose to avoid these burdens and accept an earlier

death. Incapacity to make decisions is also a common problem for

the elderly- Nearly a quarter of all adults surviving to age 80 will

suffer a progressive dementing disorder prior to death,® and the vast

majority of Americans will have a time in their lives when they do

not have the capacity to make health care decisions, because of acute

illness, dementia, or disorientation near death. To interfere with

3App. at la-2a.

*ABA, Advanced Age of the Alleged Incompetent, Report 106 A, B, § Ii.C,

in Summary of Actions of the House of Delegates: 1987 Annuai Meeting

14-18 (Aug. 1987).

5Cohen & Eisdorfer, Dementing Disorders, in The Practice of Genatncs

194 (1986).

a patient-centered standard for decision-making would be to deny

millions of elderly patients and other adults an individualized deci-

sion regarding their health care and could require physicians to prac-

tice medicine in violation of their professional standards.

For the foregoing reasons, the AGS wishes to offer to this Court

its view on the issues in this case. Pursuant to Rule 36 of the Rules

of this Court, the parties have consented to the filing of this brief.

Letters of consent have been filed with the Clerk of the Court.

SUMMARY OF ARGUMENT

In the decisicn below, a severely divided Supreme Court of

Missouri precluded the cessation of life-sustaining medical treat-

ment -- artifcial hydration and nutrition -- to Nancy Cruzan because

of the state’s purported unqualified interest in life and the fact that

the treatment was not burdensome to Ms. Cruzan. The majority

eviscerates the patient’s constitutionally protected right to forgo

medical treatment and significantly limits the ability of a mentally

disabled patient .o exercise this right. The majority also jeopardizes

the ethical integrity of the medical profession by allowing the state

to interfere in the medical decision-making process.

The well established standard for good medical decision-making

is patient-centered, promoting the individual's well-being according

to his or her own values and preferences, and involves the participa-

tion of the individual, the physician, and frequently the individual's

family members. The decision of the court below significantly

disrupts the decision-making process by dictating the result of the

decision-making process without regard to an individualized assess-

ment of the patient’s well-being and in most, if not all, cases caus-

ing prolongation of the dying process.

The right to forgo life-sustaining medical treatment is encompassed

within the right of privacy or pruperly characterized as a liberty in-

terest protected by the Due Process Clause of the Fourteenth

Amendment. Since the right is not absolute, it must be balanced

against competing state interests. The court below failed to accord

due weight to the patient’s constitutional rights and predetermin-

ed the result of the balancing by finding an unqualified state interest

in life and by disregarding the other three recognized state interests.

Most importantly, the Missouri Supreme Court overlooked the

state’s interest in maintaining the ethical integrity of the medical

profession. Had that interest been considered, the state would have

assumed the proper role of overseeing procedures and arbitrating

disputes in the decision-making process currently recognized and

practiced by the medical community.

ARGUMENT

I. THE STANDARD FOR GOOD MEDICAL DECISION-

MAKING WILL BE COMPROMISED BY THE RUL-

ING OF THE MISSOURI SUPREME COURT.

Through the long, thoughtful efforts of doctors, ethicists, and com-

munity leaders, a model for good medical decision-making has

evolved and become a well-accepted practice among health care pro-

viders.® For good medical decision-making practices to function ef-

fectively and fulfill the purpose of promoting patient well-being, each

individual must have the right to forgo’ life-sustaining medical treat-

ment. This right must be afforded constitutional protection, either

under a right of privacy or as a liberty interest under the Due Pro-

cess Clause of the Fourteenth Amendment. However, the barriers

erecied by the Missouri Supreme Court to forgoing life-sustaining

medical treatment effectively deprive patients of their constitutional

protections and cause a significant adverse disruption of the medical

decision-making process.

6President’s Commission, Making Health Care Dectstons, supra note

2: Hastings Center Guidelines, supra note 2; American College of Physi-

cians, American College of Physicians Ethics Manual, 111 Annals Internal

Med. 327 (1989); Ruark, Raffin & The Stanford University Medical Center

Committee on Ethics, Initiating and Withdrawing Life Support: Principles

and Practice in Adult Medicine, 318 New Eng. J. Med. 25-30 (1988).

’The term, ‘“‘right to forgo,’’ refers to both the withdrawal and

withholding of a particular medical treatment.

A. All Choices Among Medical Treatments Should

Be Assessed According to the Standard for Good

Medical Decision-Making.

The standard for good medical decision-making under any cir-

cumstance is that the choice made among treatment alternatives

pursues the well-being of the patient, understood according to the

patient's own values and life goals to the extent they can be known.

The obligation of health care professionals and others interested

in the patient’s well-being is to ascertain the potential treatment

options for a patient and, together with the patient or the patient's

representative, decide which actions best promote the patient's in-

terests. These interests may vary widely among different in-

dividuals,* for each individual has unique goals and values.

Respect for persons and for the integrity of their individual values

is an essential feature of good medical decision-making. Society

values the uniquely human freedom to structure a meaningful life

and to make choices about how best to live that life. When this

freedom is limited, it must be done carefully, for there is a risk of

devaluing individual lives based on some universalized ranking of

values.

When deficits in understanding, communication, or reasoning make

a patient unable to be responsible for his or her own decisions,?

the standard for medical decision-making requires that the decision

be made by a surrogate decision-maker collaborating with the physi-

cian. An appropriate surrogate decision-maker is one who knows

the patient well. The patient’s family and, in some situations, the

patient's close friends, best fit this requirement. Elderly persons

strongly prefer and even assume that families will serve as sur-

rogates, and see this as a way to extend autonomy to future situa-

®See supra note 2.

*Such a patient may or may not have been determined to be incompe-

tent by a court.

tions of decisional incapacity.!° Also, to diminish the family’s role

to mere recorders of past conversations about life-sustaining

therapies is to denigrate the values of families and other relationships.

When the person cannot choose for himself or herself, it is im-

portant that surrogates be very protective of the patient’s life and

reluctant to allow it to be foreshortened.!! However, hesitance and

caution should not indicate a sweéping refusal to allow death to oc-

cur. There are some conditions that entail such substantial suffer-

ing and isolation from loved ones that treatment to prolong such

a life should not be required.'? If it were, the decision-making in-

capacity itself would become the barrier to the morally correct

withdrawal of a treatment which had become unwarranted and

harmful.

The Missouri Supreme Court’s decision, by excluding certain

categories of decisions from the list of alternatives that can be

chosen, conflicts with the goal of medicine: to promote the well-

being of patients according to their unique values and life goals. One

of the factors that te Missouri Supreme Court relies upon in

reaching their decision is that Nancy Cruzan is not ‘‘terminally ill.’’

760 S.W.2d at 412, 419. To allow this issue to enter into the analysis

is to claim that the standard for good medical decision-making should

depend on how close a person is to the time of death. Such a claim

has several difficulties.

First, delaying the actual time of death is a value that some may

desire to trade-off for other values, such as increased comfort or

capacity to interact with others.

\0High, All in the Family: Extended Autonomy and Expectations in Sur-

rogate Decision-Making, 28 The Gerontologist 46-51 (1988).

11President’s Commission, Making Health Care Decisions, supra note

2, at 177-181; President’s Commission, Deciding to Forego, supra note

2, at 132-136. See also Buchanan, The Limits of Proxy Dectsionmaking

for Incompetents, 29 UCLA L. Rev. 393 (1981).

'2President’s Commission, Deciding to Forego, supra note 2 at 3. See

also Rosner, Prolonging the Act of Dying, 31 J. Am. Geriatrics Soc’ y 382

(1983).

Second, the empirical data upon which one can base a prognostica-

tion of ‘‘terminal illness’’ is necessarily limited. Statutes and public

policy statements that use ‘‘terminal illness’’ fail to consider that

the prognostication is a statistical one. Statistical data can give on-

ly very broad estimates of survival, and are very imprecise when

applied to a particular patient.

Third, the definition of ‘‘terminal’’ is itself quite vague. Does it

refer to patients who will die soon without therapy, or only to those

who will die soon in spite of all therapy? To choose the latter would

seriously restrict the control that millions of elderly patients could

exercise over lives affected by chronic debilitating and dementing

illness.

Finally, a decision to uphold the Missouri Supreme Court’s rul-

ing would have the effect of granting each state the authority to

alter the standard of patient-centered decision-making and would

be devastating to patients and the health care profession. The obliga-

tion to respect persons and their authority over their own lives is

universal and certainly cannot depend on the individual's state o<

residence or on the fact that the individual may live im a state-

supported institution. Substantial variations would undermine na-

tional standards of care!* and the interstate mobility of health care

professionals. An incompetent person under guardianship wouic pre-

sent a dilemma if the family wished to move the patient to a state

more tolerant of forgoing life-sustaining treatment. Interstate varia-

tion would also affect federal regulation of what care is warranted

and how quality of care is to be measured under Medicare and other

federal programs.

\3Legally, the medical profession is measured by national standards. For

example, the modern trend in medical malpractice cases has been to replace

the locality or community standard of due care with a standard that does

not rest on geographic locality. See, e.g., Gridley v. Johnson, 476 S.W.2d

475, 482 (Mo. 1972); Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d

793, 798 (1968); 61 Am. Jur. 2d Physicians, Surgeons and Other Healers

§ 219 (1981).

B. The Missouri Supreme Court Failed To Consider

Properly That Artificial Nutrition And Hydration

Are Forms Of Medical Treatment.

The Missouri Supreme Court assumes that the medical provi-

sion of hydration and nutrition ought to be considered differently

from other medical treatments. Although the Court expressly con-

sidered the equating of nutritional support with medical treatment

as a ‘‘semantic dilemma,’’ 760 S.W.2d at 423, the tone of the opi-

nion implies that the majority viewed the distinction as profound.

Their analysis begins with the powerful statement, ‘‘[t]his is a case

in which we are asked to allow the medical profession to make Nancy

die by starvation and dehydration,’’ 760 S.W.2d at 412, and fur-

ther continues with the statement that ‘‘common sense tells us that

food and water do not treat an illness, they maintain a life.’’ Jd.

at 423.

The ‘‘common sense’’ distinction drawn by the Missouri Supreme

Court lacks coherence for two reasons: First, ‘‘common sense”’

might well dictate that a particular treatment for an illness is cen-

tral to the maintenance of life; yet, no claim is made, or could

reasonably be made, that all treatment maintaining life must be im-

posed upon all potential patients. Second, the cause of death in a

situation where medical provision of nutrition and hydration is

withheld is not ordinarily understood to be the inoperation of the

mechanical means for feeding; rather, death is caused by the underiy-

ing condition that prevents the patient from taking nutrition ‘‘nat-

urally.’” When a treatment decision removes a patient from a life-

sustaining respirator, the death certificate does not list the removal

of the machine as the cause of death, instead it lists the underlying

condition that created the inability to breathe on one’s own. This

‘‘semantic’’ problem, as the Missouri court labels it, is important

because it relates to the way in which causation is perceived and

understood in a medical context. There are multiple factors, both

behavioral and pathophysiological, contributing to any death, and

the naming of a single cause is a normative and social endeavor,

not merely a descriptive task.

Additionally, the rationale expressed by the Missouri Supreme

Court in claiming that nutrition and hydration is merely needed for

survival fails to distinguish nutrition and hydration from other life-

sustaining medical treatments. For example, oxygen exchange is

needed by all, but artificial respiration can be halted; the removal

of soluble toxins is needed by all persons, but dialysis can be halted. !4

__ Courts addressing this issue have acknowledged no distinction bet-

ween the decision to forgo artificial hydration and nutrition and the

decision to forgo other life-sustaining medical treatments. 5

Another common misunderstanding causing distortion of a discus-

sion of forgoing nutritional support concerns the patient’s actual ex-

perience of dehydration and malnutrition versus the chemical im-

balance indicated by certain diagnostic test results. There is a univer-

sal obligation to attend to a patient’s experience of hunger and thirst,

but patients who are dehydrated and malnourished according to

laboratory tests may not feel hunger or thirst -- most dying or

seriously ill patients do not.'* The value of nutritional therapy must

be assessed according to the well-being of the particular patient and

sometimes that assessment indicates that efforts should not be made

to correct the chemical imbalances. Spoon-feeding can still be of-

4See, e.g., In re Quinlan, 70 N.J. 10, 355 A.2d 647 (respirator), cert.

denied, 429 U.S. 922 (1976); In re Spring, 380 Mass. 629, 405 N.E.2d

114 (1980) (dialysis).

'SGray v. Romeo, 697 F. Supp. 580, 587 (D.R.1. 1988); Jn re Conroy,

98 N.J. 321, 372-374, 486 A.2d 1209, 1235-37 (1985); Brophy v. New

England Sinai Hosp ., 398 Mass. 417, 438-39, 497 N.E.2d 626, 636-38

(1986); In re Peter, 108 N.J. 365, 380-382, 529 A.2d 419, 427-28 (1987);

In re Jobes, 108 N.J. 394, 413 n. 9, 529 A.2d 434, 444 n. 9 (1987); In

re Gardner, 534 A.2d 947, 954-55 (Me. 1987); Im re Drabick, 200 Cal.

App. 3d 185, 245 Cal. Rptr. 840, cert. denied, U.S. , 109 S. Ct.

399 (1988); McConnell v. Beverly Enterprises, 209 Conn. 692, 705, 553

A.2d 596, 603 (1989). ‘

'6See e.g., Schmitz & O’Brien, Observations on Nutrition and Hydra-

tion in Dying Cancer Patients, in By No Extraordinary Means 29-38 (Lynn

ed. 1989); Cox, Js Dehydration Painful?, 9 Ethics and Medics 1-2 (1987):

Baines, Control of Other Symptoms, in The Management of Terminal Disease

(1978); Crowther, Management of Other Common Symptoms of the Ter-

minally Ill, in The Dying Patient (1982).

fered to the patient, both to remain open to the possibility that the

patient could eat and to acknowledge the social importance c. in-

cluding the patient in the community of caring throughout dying.

Patients in persistent vegetative state (PVS), like Nancy Cruzan,

ordinarily can reflexively swallow their own saliva and at least small

amounts of food and water.

For the vast majority of patients, medical provision of nutrition

and hydration offers substantial benefits that clearly overcome the

burdens inherent in the proposed treatment. However, like other

forms of medical treatment, the provision of nutritional support itself

sometimes cannot succeed even in achieving its physiologic ends

and also always carries with it risks and problematic side effects.'’

Nasugastric tube feedings (from the nose to the stomach) commonly

cause annoyance and discomfort and frequently require that the pa-

tient be placed in restraints. They also may involve a substantial

risk of sinus and lung infections or bleeding from the esophagus or

stomach, and diarrhea. Gastrostomy feedings (through the abdominal

wall to the stomach) require surgical placement of the tube, with

associated anesthesia and wound-healing risks, as well as most of

the risks of nasogastric feedings. Intravenous fluid therapy (pro-

viding soluble nutrients and liquids into a vein in the arm or leg)

or parenteral hyperalimination (providing a balanced chemical diet

into a large vein in the chest) frequently cause serious ill-effects

such as metabolic abnormalities and fluid overload. Any of these

procedures commonly entail increased monitoring of blood chemistry

and urine output which, themselves, incur risks. There are clear

instances where adequate nutritional support causes more harm than

17See, e.g., Canizaro, Methods of Nutritional Support in the Surgical Pa-

tient, in Surgical Nutnition 13 (1981); Silberman & Eisenberg, Parenteral

and Enteral Nutrition for the Hospitalized Patient (1982); Michel, Serrano

& Malt, Nutritional Support of Hosfitalized Patients, 304 New Eng. J. Med.

1147 (1981); Faintauch & Dietel, Complications of Intravenous

Hyperalimentation: Technical and MetabolicAspects, in Nutnition in Clinical

Surgery (1980); Rombeau & Caldwell, Enteral and Tube Feeding, in

Clinical Nutrition 1 (2d ed. 1989); Konstantinedes & Shronts, Tube

Feeding, Managing the Basics, Am. J. Nursing 1312 (Sept. 1983); Stroot,

Fluids and Electrolytes: A Practical Approach (2d ed. 1977).

good.'* Dying cancer patients, for example, if given fluids may re-

quire uncomfortable suctioning of excess secretions: the condition

of patients in heart or kidney failure may actually worsen if fluids

are provided. '9

Many, including the court below, are reluctant to consider the

possibility that the risks and harm associated with the medical pro-

vision of hydration and nutrition might support a decision to forgo

that treatment. The provision of food and water is ordinarily cv.

sidered to be a basic expression of caring and there is a strong sen-

timent that all people benefit from its being provided. The evidence,

however, is to the contrary.

In much of the literature discussing the issue of forgoing nutri-

tional support, there is concern expressed about the symbolic nature

of providing food and water.?° Society is filled with powerful im-

ages surrounding shared meals. Eating and drinking together is an

essential part of many cultural and religious rituals. The provision

of food and water ordinarily demonstrates loyalty, steadfastness,

and commitment to care. However, the medical treatment of severe-

'SZerwekh, The Dehydration Question, Nursing 47-51 (Jan. 1983):

Hushen, Questioning TPN as the Answer, 82 Nursing 852-854 (1982):

Saunders, Summers & Teller, Hospice: The Living Idea (1981); Baines,

Control of Other Symptoms, in The Manayement of Terminal Malignant

Disease (2d ed. 1984); Billings, Comfort Measures for the Terminally III:

Is Dehydration Painful?, 33 J. Am. Geriatrics Soc’ y 808-10 (1985); Oliver,

Terminal Dehydration, ii Lancet 631 (1984).

19A recent review of nutritional support in dying cancer patients receiv-

ing chemotherapy could find no subgroup of malnourished patients who

actually benefitted. American College of Physicians, Parenteral Nutrition

in Patients Receiving Cancer Therapy, 110 Annals Internal Med. 734-736

(1989).

2°Derr, Why Food and Fluids Can Never Be Withdrawn, Hastings Center

Report 28-30 (1986); Callahan, Feeding the Dying Elderly, Generations

15-17 (Winter 1985); Capron, Jronies and Tensions in Feeding the Dying,

Hastings Center Report 32-35 (Oct. 1984); Dresser, When Patients Resist

Feeding: Medical, Ethical and Legal Considerations, 33 J. Am. Geriatrics

Soc’y 790 (1985); Carson, The Symbolic Significance of Giving to Eat and

Dnnk, in By No Extraordinary Means 84-88 (Lynn ed. 1989).

ly ill persons sometimes challenges these sentiments.?! The usual

community sentiment encouraged by the sharing of meals is difficult

to envision when the food is a chemical mixture being dripped through

an ertifically created opening into the body.2?

It is, ndeed, essential to maintain community attitudes of caring

that are represented in actions that advance our shared values. Ac-

tions that also symbolize-a broader context of caring help to sus-

tain and renew values for future generations. The strong presump-

tion in favor of providing nutritional support can be justified on these

grounds. However, such a presumption cannot legitimately be ex-

panded to an imperative always to provide nutritional support since,

in some circumstances, nutritional support is harmful. It is hard to

imagine how an act that is harmful to its recipient can be regarded

at the same time as a symbol of caring.”°

A distinction drawn by the Supreme Court between nutritional

support and other medical treatments would have a profound im-

pact on the care of the elderly who are able to suffer the adverse

side effects of artificial nutrition and hydration. Such a result would

21Norberg, Norberg, Gittert & Bexell, Ethical Conflicts in Long-Term

Care of the Aged: Nutritional Problems and the Patient-Care Worker Rela-

tionship, 1 British Med. J. 377-378 (1980).

22In medical settings, the medical nature of artificial nutrition and hydra-

tion becomes apparent. A gastrostomy, for example, is a medically in-

vasive procedure requiring surgical or endoscopic placement of a feeding

tube through the abdominal wall into the stomach. The federal govern-

ment through the Food and Drug Administration (FDA) regulates feeding

tubes as medical devices, 21 C.F.R. § 876.5980 (1989), and the ‘‘food’’

provided through the tubes is described in the Physicians’ Desk Reference,

a physicians’ guide to pharmaceuticals and diagnostic products. See, e.g.,

Physicians’ Desk Reference 1742 (1987). The FDA has issued warnings

to medical practitioners of the side effects of such formulas, cautioning

that certain formulas are ‘‘superb media’’ for bacteria that might cause

gastroententis and sepsis. Food Drug Cosm. L. Rep. (CCH) 4 41,095

(Nov. 1988). See also Brief of Amicus Curiae Concern for Dying at 9-10,

In re Browning, (Fla.), pending, (No. 74-174).

23Glover, A Philosophical Analysis of Substitute Decision-Making: The

Case of Ms. Nancy Cruzan, in 5 Midwest Med. Ethics 10, 13 (1989).

harm not only those who would thereby need to be restrained or

operated upon, for example, but also those seriously ill and dying

patients at home who would be forced to return to institutions which

may be alien, frightening, limiting to freedom, and possibly even

hazardous.24 Thus, a needless barrier will have been erected against

the peaceful dying at home that many people would prefer.

II. PURSUANT TO A RIGHT OF PRIVACY OR A

LIBERTY INTEREST UNDER THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT,

THE CONSTITUTION PROTECTS THE INDIVID-

UAL’S RIGHT TO FORGO LIFE-SUSTAINING

MEDICAL TREATMENT.

Federal and state courts have recognized that a patient's nght

to refuse medical treatment is constitutionally protected, whether

characterized as within the penumbral right of privacy or as a due

process liberty interest in bodily integrity.25 Since an individual's

24See, e.g., Jahnigen, Hannon, Laxson & LaForce, /atrogenic Disease

in Hospitalized Elderly Veterans, 30 J. Am. Geriatrics Soc’y 387 (1982);

Stell, Gertman, Crescenzi & Panderson, /atrogenic Iliness on a General

Medical Service at a University Hospital, 304 New Eng. J. Med. 638 (1981);

Lo & Dornbrand, Guiding the Hand That Feeds, Caring for the Demented

Elderly, 311 New Eng. J. Med. 402-404 (1984).

25See, e.g., Bee v. Greaves, 744 F.2d 1387, 1393-94 (10th Cir. 184),

cert. denied, 469 U.S. 1214 (1985) (privacy and liberty interests); Rogers

v. Okin, 634 F.2d 650, 653 (1st Cir. 1980), vacated and remanded on other

grounds sub nom. Mills v. Rogers, 457 U.S. 291 (1982), on remand sub

nom. Rogers v. Okin, 738 F.2d 1 (1st Cir. 1984) (Fourteenth Amendment

due process interest and right of privacy, bodily integrity, or personal

security); Gray v. Romeo, 697 F. Supp. at 585-86 (liberty interest pro-

tected by Fourteenth Amendment): Jn re Guardianship of Grant, 109

Wash. 2d 545, 552-53, 747 P.2d 445, 449 (1987) (en banc), modified, 757

P.2d 534 (Wash. 1988) (right to privacy); Rasmussen v. Fleming, 154 Anz.

207, 741 P.2d 674, 682 (1987) (right of privacy); Brophy, 398 Mass. at

430-32, 497 N.E.2d at 633-34 (night of privacy, self-determination and

individual autonomy, bodily integrity); Bouvia v. Superior Court, 179 Cal.

App. 3d 1127, 1137, 225 Cal._Rptr. 297, 301 (1986) (night of privacy);

Bartling v. Superior Court, 163 Cal. App. 3d 186, 195, 209 Cal. Rptr.

220, 225 (1984) (nght of privacy, bodily integrity); Satz v. Perlmutter, 362

rights to be free from nonconsensual invasions of the body and of

personal autonomy and security are fundamental and deeply rooted

in this Nation’s history, the right of privacy and liberty guarantee

of the Fourteenth Amendment properly encompass a patient’s night

to forgo life-sustaining medical treatment.

The right of privacy is grounded in the penumbras of the First,

Third, Fourth, and Fifth Amendments, together with the rule of

construction of the Ninth Amendment. Griswold v. Connecticut, 381

U.S. 479, 484 (1965). While the Court has cautioned against an ex-

pansive interpretation of the right of privacy, Roe v. Wade, 410 U.S.

113, 154 (1973), Bowers v. Hardwick, 478 U.S. 186, 190 (1986),

it has recognized that privacy appropriately protects personal deci-

sions ‘‘implicit in the concept of ordered liberty,’’ Palko v. Con-

necticut, 302 U.S. 319, 325, 326 (1937), overruled on other grounds,

Duncan v. Louisiana, 391 U.S. 145 (1968) and Benton v. Maryland,

395 U.S. 743 (1969), or those interests that are ‘‘deeply rooted

in this Nation’s history and tradition.’’ Moore v. City of East

Cleveland, 431 U.S. 494, 503 (1977). See also Bowers, 478 U.S.

at 191; Paul v. Davis, 424 U.S. 693, 713 (1976); Gray v. Romeo,

697 F. Supp. 580, 584, 585 (D.R.I. 1988).

Under the Fourteenth Amendment, a protected liberty interest

must be on ‘‘so rooted in the traditions and conscience of our peo-

ple as to be ranked fundamental.’’ Snyder v. Massachusetts, 291

U.S. 97, 105 (1934) (Cardozo, J.), quoted in Michael H. v. Gerald

D., ___ U.S. ___, 109 S. Ct. 2333, 2341 (1989). Protected liberty

interests include the right ‘‘generally to enjoy those privileges long

recognized at common law as essential to the orderly pursuit of hap-

piness by free men.’’ Ingraham v. Wnght, 430 U.S. 651, 673 (1977).

That the right of each individual to control medical decisions af-

fecting one’s body is deeply rooted in our country’s history, tradi- —

tion, and conscience is reflected in notions of bodily integrity that

So. 2d 160, 161-62 (Fla. Dist. Ct. App. 1978), aff'd, 379 So. 2d 359 (Fila.

1980) (right of privacy); Jn re KKB, 609 P.2d 747, 751 (Okla. 1980) (night

of privacy); Superintendent of Belchertown State School v. Satkewicz, 373

Mass. 728, 370 N.E.2d 417, 424 (1977) (right of privacy, bodily integn-

ty); In re Quinlan, 70 N.J. at 39, 355 A.2d at 663 (right of privacy).

have been recognized since 1891.26 Union Pacific Ry. Co. v.

Botsford, 141 U.S. 250 (1891); see Roe v. Wade, 410 U.S. at 152-53

(Blackmun, J., for the Court), 168 (Stewart, J., concurring);

E:senstadt v. Baird, 405 U.S. 438, 453 (1972); Gray, 697 F. Supp.

at 584-86; see also Webster v. Reproductive Health Services,

U.S. ___, 109 S. Ct. 3040, 3058 (1989) (plurality opinion);

Gnswold, 381 U.S. at 486 (Goldberg, J., concurring). ‘‘In the history

of the common law, there is perhaps no right which is older than

a person’s right to be free from unwarranted personal contact.’’

Davis v. Hubbard, 506 F. Supp. 915, 930-31 (N.D. Ohio 1980).

It has long been the case that medical treatment by a physician in

a non-emergency that is rendered without the patient’s informed

consent, or exceeds the consent given, has been deemed actionable

as a battery or trespass of the person.?’

As have most states, Missouri has recognized the duty of a physi-

cian to inform the patient sufficiently to enable him to make an in-

formed decision regarding the treatment options. Azken v. Clary,

396 S.W.2d 668, 673 (Mo. 1965); see Douthitt v. United States, 491

F. Supp. 891, 894 (E.D. Mo. 1980); see also Mo. Ann. Stat.

§ 431.061 (Vernon Supp. 1989) (consent to medical treatment). The

principle which supports the doctrine of informed consent is that

only the patient has the night to weigh the risks attending the par-

26‘*No right is held more sacred, or is more carefully guarded . . . than

the right of every individual to the possession and control of his own per-

son, free from all restraints or interference of others, unless by clear and

unquestionable authority of law."’ Unton Pacific Ry. Co. v. Botsford, 141

U.S. 250, 251 (1891).

27 Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 14-15 (1905), overrul-

ed on other grounds, Genzel v. Halvorson, 248 Minn. 527, 80 N.W.2d 854

(1957); Pratt v. Davis, 224 Ill. 300, 79 N.E. 562, 564 (1906); Rolater v.

Strain, 39 Okla. 572, 137 P. 96, 98 (1913); Schloendorff v. Society of New

York Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914) (Cardozo, J.), over-

ruled on other grounds, Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3

(1957); Wells v. Van Nort, 100 Ohio St. 101, 125 N.E. 910, 911 (1919);

Cobbs v. Grant, 8 Cal. 3d 229, 104 Cal. Rptr. 505, 502 P.2d 1, 7 (1972)

(in bank). Missouri recognizes that consent is a defense to assault and

battery. Mo. Ann. Stat. § 565.080 (Vernon 1979).

ticular treatment and decide for himself what course of action is best

suited for him. Davis, 506 F. Supp. at 932. Thus, a common law

right to refuse medical treatment emerged from the doctrines of

trespass and battery, as they were applied to unconsented touchings

by a physician. Mills v. Rogers, 457 U.S. 291, 294 n.4, 102 S. Ct.

2442, 2446 n.4 (1982); Rasmussen, 741 P.2d at 683; In re Colyer,

99 Wash. 2d 114, 660 P.2d 738, 743 (1983) (en banc); Saikewicz,

373 Mass. at 738-39, 370 N.E.2d at 424. Today, there is a well-

established common law right to forgo medical treatment, including

life-sustaining treatment. See, e.g. Rasmussen, 741 P.2d at 683;

In re Colyer, 660 P.2d at 743; In re Storar, 52 N.Y.2d 363, 420

N.E.2d 64, 70, 42° N.Y.S.2d 266, cert. denied, 454 U.S. 858 (1981);

Lane v. Candura, 6 Mass. App. Ct. 377, 383, 376 N.E.2d 1232,

1233 (1978).

In addition, society in general, and Missouri particularly, has tradi-

tionally accorded a high degree of protection to the doctor-patient

relationship. See Mo. Ann. Stat. §§ 191.227 (restricted release of

medical records), 491.060 (codification of physician-patient privile:,<)

(Vernon Supp. 1989). Through the relationship that has evolved,

a doctor and patient work together to discern medicz! treatment

options and the patient then has the authority to make the ultimate

determination of the appropriate course of action, consistent with

his or her own values.

Given this long history of a common law right to bodily integrity

and personal autonomy, a patient’s right to make a personal deci-

sion to accept or forgo life-sustaining medical treatment is so

embedded in this Nation’s history and tradition as properly to be

within the right of privacy or to constitute a fundamental liberty in-

terest under the Due Process Clause. In fact, the Missouri Supreme

Court reluctantly acknowledged that a right to forgo life-sustaining

medical treatment could be protected under the federal constitu-

tional right of privacy. 760 S.W.2d at 418-19.

Extending such constitutional protections is consistent with the

Court’s earlier decisions. An individual has a privacy interest ‘in

independence in making certain kinds of important decisions.

Whalen v. Roe, 429 U.S. 589, at 599-600 (1977) (footnote omit-

ted). Matters relating to marriage, procreation, contraception, family

relationships, and child-rearing and education generally have been

within this right of privacy.”® Paul, 424 U.S. at 713. Thus, the in-

tensely personal decision to forgo life-sustaining medical treatment

falls squarely within the acknowledged bounds of the right of privacy.

Unlike Bowers, decisions to forgo such medical treatment have a

well-accepted basis in this Nation’s history and common law. In the

case at bar, new rights are not being discovered, but rather ex-

isting protections are being afforded to decisions made necessary

by the development of new medical technologies and the resulting

artificial prolongation of dying.

III. THE RIGHT OF AN INCOMPETENT PATIENT TO

FOREGO LIFE-SUSTAINING MEDICAL TREAT-

MENT MUST BE EXERCISED BY A SURROGATE

DECISION-MAKER TO PREVENT EVISCERAT-

ING THIS RIGHT.

The Missouri Supreme Court held that Nancy Cruzan’s co-

guardians did not have the authority to order the withdrawal of hydra-

tion and nutrition from Ms. Cruzan. 730 S.W.2d at 426. In deciding

that a ‘‘guardian’s power to exercise third-party choice arises from

the state’s authority, not the constitutional rights of the ward,’’ 760

S.W.2d at 425, the holding effectively denies an individual a con-

stitutional right soleiy on the basis of her decision-making capacity.

This is a dangerous precedent for it suggests that an individual's

constitutional rights increase or decrease in relation to her intellectual

28See, e.g., Carey v. Population Services Int'l, 431 U.S. 678 (1977) (child

rearing and education); Roe v. Wade, 410 U.S. 113 (1973) (abortion):

E:senstadt v. Baird, 405 U.S. 438 (1972) (co:.craception); Stanley v.

Georgia, 394 U.S. 557 (1969) (possession of obscene material in own

home); Loving v. Virgimia, 388 U.S. 1 (1967) (marriage); Prince v.

Massachusetts, 321 U.S. 158 (1944) (family relationships): Skinner v.

Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (sterilization: procrea-

tion). But see Bowers v. Hardwick, 478 U.S. 186 (1986) (right of privacy

does not encompass right to engage in homosexua! sodomy in own home).

capacity and it allows the state to intervene unjustifiably in the

decision-making process.

The Supreme Court has recognized that a third party has stan-

ding to assert the constitutional rights of others if a substantial rela-

tionship exists between the claimant and the third party, assertion

of the constitutional night is impossible and the claimant's constitu-

tional right will be diluted or adversely affected if the third party

is not allowed to assert it. See Eisenstadt v. Baird, 405 U.S. at

445-46; Griswold v. Connecticut, 381 U.S. at 481 (1965). Consis-

tent with this position, the Supreme Court has acknowledged that

‘‘(t]he law must often adjust the manner in which it affords nghts

to those whose status renders them unable to exercise choice freely

and rationally. . . .[T]hose who are irreversibly ill with loss of brain

function. . .retain ‘rights’. . .but often such nghts are only mean-

ingful as they are exercised by agents acting with the best interest

of their principals in mind.’’ Thompson v. Oklahoma, ____ U.S.

____, 108 S. Ct. 2687, 2693 n. 23 (1988) (plurality opinion).

Numerous jurisdictions have recognized that the nght to forgo

life-sustaining medical treatment survives incompetency of an in-

dividual and also explictly or implicitly recognize the necessity of

a surrogate decision-maker to exercise the individual's nght.?° As

recognized by state courts, legislatures, and the ethical standards

of the medical community, the appropriate surrogate decision-maker,

29See, e.g., Rasmussen, 154 Ariz. at 219, 221, 741 P.2d at 686, 688;

In re Conroy, 98 N.J. at 359, 486 A.2d at 1229; Foody v. Manchester

Memonal Hosp., 40 Conn. Supp. at 127, 482 A.2d 713, 718 (Super. Ct.

1984); John F. Kennedy Memonial Hosp. v. Bludworth, 452 So. 2d 921,

923 (Fla. 1984); In re Barry, 445 So. 2d 365, 370 (Fla. Dist. Ct. App.

1984); In re Colyer, 99 Wash. 2d at 123, 660 P.2d at 744, modified on

other grounds, In re Guardianship of Hamlin, 102 Wash. 2d 810, 689 P.2d

1372 (1984); Severns v. Wilmington Medical Center, Inc., 421 A.2d 1334,

1347 (Del. 1980); Saikewicz, 373 Mass. at 736, 744, 370 N.E.2d at 423,

427; In re Quinlan, 70 N.J. at 41, 355 A.2d at 664; In re Storar, 52 N.Y.

2d 363, 420 N.E.2d 64, 438 N.Y. 2d 266, cert. demied, 454 U.S. 858 (1981).

in most circumstances, is the family and close loved ones of the

patient.°°

IV. IN CRUZAN, THE MISSOURI SUPREME COURT

IMPROPERLY FORMED AND APPLIED THE

BALANCING OF THE PATIENT’S CONSTITU-

TIONAL RIGHT AND THE STATE’S INTEREST SO

AS TO IMPINGE UNJUSTIFIABLY ON THIS CON-

STITUTIONALLY PROTECTED RIGHT.

Whether under the right of privacy or the Fourteenth Amend-

ment Due Process Clause, the right to forgo life-sustaining medical

treatment is not absolute when faced with a competing state interest.

Roe v. Wade, 410 U.S. at 154; Griswold v. Connecticut, 381 U.S.

at 485. An individual’s right to forgo medical treatment is to be

balanced against the purported state’s interest. The Missouri

Supreme Court erroneously formed and applied the balancing of Nan-

cy Cruzan’s right and the state’s interests in that it effectively

predetermined the outcome in favor of the state in most, if not all,

cases. Such a balancing test is erroneous as a factual matter and

is unconstitutional as an impingement on the patient's right of privacv

or due process liberty right.

The Missouri Supreme Court identified four state interests to be

balanced against the patient’s right to forgo medical treatment: (1)

‘the preservation of life;’’ (2)‘‘the prevention of homicide and

suicide;’’ (3) ‘‘the protection of interests of innocent third parties;’’

(4) ‘‘the maintenance of the ethical integrity of the medical profes-

30See, e.g., Barber v. Superior Court, 147 Cal. App. 3d 1006, 1021, 195

Cal. Rptr. 484, 492 (1983); Jobes, 108 N.J. 394, 529 A.2d 434, 444-47:

Quinlan, 70 N.J. at 41, 355 A.2d at 671. Missouri recognizes a guardian-

ship preference for blood relatives. Mo. Ann. Stat. §§ 475.050, 475.045

(Vernon Supp. 1989). See also AGS Position Statement, App. at 2a; Presi-

dent’s Commission, Deciding to Forego, supra note 2, at 4-5.

sion.’’ 760 S.W.2d at 419 (citing to Mo. Rev. Stat. § 459.055(1)

(1986) and Brophy, 497 N.E.2d at 634).* In balancing, the Missouri

Supreme Court only considered the state interest in the preserva-

tion of life, and improperly disregarded the three other legitimate

state interests.32 760 S.W.2d at 419. By interpreting the state in-

terest in the preservation of life as unqualified, the court understated

the role of quality of life in the context of medical decision-making.

The court also improperly considered the absence of burden-

someness to the patient in the balancing analysis. In this way, the

Missouri Supreme Court erected a framework for balancing that

will, in almost all cases, predetermine a result in favor of the state’s

interests, allowing the state effectively to become the ultimate

decision-maker, thus impinging on the patient’s constitutionally pro-

tected rights. With the recognition of the state’s mterest in the

maintenance of the ethical integrity of the medical profession, the

state’s proper role becomes the monitoring of medical treatment

decisions by insuring that the decision-making process is im-

plemented in good faith and without serious conflicts of interest.

By recognizing only an unqualified state interest in the preser-

vation of life 33 the Missouri Supreme Court effectively predeter-

mines the outcome of the balancing test; the patient’s constitutionally

protected interests cannot survive the balancing under any cir-

cumstance and all other state’s interests are subsumed. The

31 See, e.g., Tune, 602 F. Supp. at 1455; Rasmussen, 154 Ariz. at 216,

741 P. 2d at 683; Bartling, 163 Cal. App. 3d at 195, 209 Cal. Rptr. at

225; Foody, 40 Conn. Supp. at 132-34, 482 A.2d at 718; Bludworth, 452

So. 2d at 924; Satz, 362 So. 2d at 162; Conroy, 98 N.J. at 348, 486 A.2d

at 1223; Im re Farrell, 108 N.J. 335, 529 A.2d 404, 410-11 (1987);

Satkewicz, 373 Mass. at 740, 370 N.E.2d at 425; Colyer, 99 Wash. 2d

at 122, 660 P.2d at 743.

32The decision by the Missouri Supreme Court goes against the clear

intent of the statute relied upon to express the interest in life, Mo. Rev.

Stat. § 459.055(1) (1986), by ignoring the three remaining interests.

33The Missouri Supreme Court defines the state interest in life as em-

bracing two separate concerns: (1) an ‘‘interest in the prolongation of life

of the individual patient,’’ and (2) an ‘‘interest in the sanctity of life itself,’’

760 S.W.2d at 419.

Missouri Supreme Court also understated the role of quality of life

concerns in the context of medical decision-making. As the Missouri

court states:

[S]ome courts find quality of life a convenient focus when

justifying the termination of treatment. . . . Were quali-

ty of life at issue, persons with all manner of handicaps

might find the state seeking to terminate their lives. In-

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

unqualified.

760 S.W.2d at 420.

The court below correctly raises the concern that the state should

never make quality of life determinations, but it fundamentally

misstates the proper role of ‘‘quality of life’’ in the decision-making

process. It is the patient or the patient’s representative, not the

state, who is presented with the set of treatment options and who

chooses an option, based on how the patient does (or would) judge

the relative merits of the quality and length of life offered by each

alternative. The decision is not and must not be allowed to be the

proper domain of the state -- to allow the state this roie would bring

life to the Missouri Supreme Court’s concerns. The state’s only

relationship to this decision must be limited, but is critical: To en-

sure a procedural environment in which the decision can properly

be made in good faith. See L. Tribe, American Constitutional Law,

§ 16-31, at 1598-1601 (2d ed. 1988).

In fact, the feared world in which the state would seek to put

the handicapped or ‘‘undesirables’’ to death seems more likely when,

as under the rationale of the court below, the decision as to the

patient's fate is the state’s rather than when it is left to the patient

or those, such as the patient’s family, who love the patient and must

live with the decision. Again, the decision to continue life-sustaining

medical treatment is a decision in itself. Allowing the state a heavy-

handed authority to ‘‘err on the side of life,’’ 760 S.W.2d at 422,

426, is very different from allowing the family to individualize the

decision; it not only is a disservice to present patients, but also leaves

open the possibility that someday the state might decide to ‘‘err’’

tne other way. This dangerous and illegitimate role for the state

is inconsistent with a free and open society.

To acknowledge that all medical decisions involve how a life gets

lived is also to acknowledge that medicine, like other human

endeavors, is concerned primarily with enhancing or, at least, not

diminishing the quality of people’s lives. Medicine can rarely substan-

tially prolong life, can never do so indefinitely, and can mainly af-

fect the comfort or ease with which a life is lived. Thus, it is dif-

ficult, if not impossible, for the medical community to practice ac-

cording to an unqualified interest in the preservation of life.

The AGS concurs with the American Neurological Association that

the ruling of the Missouri Supreme Court ultimately undermines

the state’s asserted mterest in preserving life by discouraging

medical practitioners from urging a patient (through patient’s fami-

ly or guardian) to employ artificial life support, because they know

that such a decision will subsequently be irrevocable.** The prac--——

tice of medicine is necessarily imprecise and often the best infor-

mation as to likely outcome is generated by a trial of treatment.

The Missouri Supreme Court ruling would make such trials very

troubling, for they could result in an inescapable prolongation of

suffering. '

In failing to consider the remaiming state’s mterests, the Missouri

Supreme Court has overlooked any consideration of the state’s in-

terest in the maintenance of the ethical integrity of the medical pro-

fession.*> By ignoring this factor, the court has threatened one of

Brief of the American Academy of Neurology as Amicus Curiae in Sup-

port of the Petition at 8-9, Cruzan v. Director of Missouri Dept. of Health,

On Petition for a Writ of Certiorari to the Supreme Court of the State

of Missouri (No. 88-1503).

35The ethical integrity of individual caregivers is separable from the

ethical integrity of the medical profession as a whole. Conscientious ob-

jection by a caregiver to a proposed plan of care, including the forgoing

of artificial nutrition and hydration by any patient, can be, and ordinarily

is, either accommodated by a transfer of the patient to another facility

or to the patient’s home, or a change in the attending caregiver within

ee a al ome

the bases of the medical profession’s ethical integrity: an accepted

and practiced ethical model for good medical decision-making .**

Previous court decisions*’ have concluded that the state interest

in the ethical integrity of the medical profession is not at issue since

many professional organizations’ pronouncements have favored

allowing the forgoing of nutrition and hydration in certain cir-

cumstances.3* For the Missouri Supreme Court to claim that the

The prevention of homicide and suicide is a valid state concern which

is reflected in and likely protected by the state interest in the preserva-

tion of life. Although the Missouri Supreme Court did not express a ra-

tionale for its dismissal of this state interest, health care professionals are

particularly concerned about the circumstances under which a decision to

forgo artificial nutrition and hydration, and other forms of life-sustaining

treatment, might be construed as homicide or assisted suicide. Other

courts have stated that such forgoing should not be thus construed. Tune,

602 F. Supp. at 1455 n. 8; Rasmussen v. Fleming, 154 Ariz. 207, 741

P.2d 674, 685 (1987); Bartling v. Superior Court, 163 Cal. App. 3d 186,

209 Cal. Rptr. 220, 225-26 (1984); Bouvia, 179 Cal. App. 3d at 1127,

225 Cal. Rptr. at 297; Foody, 40 Conn. Supp. at 137, 482 A.2d at 720;

Satkewicz, 373 Mass. at 743 n. 11, 370 N.E.2d at 426 n. 11; Colyer,.99

Wash. 2d at 121, 660 P.2d at 743. The state’s interest in the protection

of the interests of innocent third parties, also was disregarded by the

Missouri Supreme Court. Other courts have limited this interest to situa-

tions in which a dependent of the patient might be adversely affected by

the patient’s decision. See, e.g., In re Conroy, 98 N.J. at 353, 486 A.2d

at 1225; Delio v. Westchester County Medical Center, 129 A.D. 2d 1, 516

N.Y.S. 2d 677, 693 (App. Div. 1987); Application of the President and Direc-

tors of Georgetown College, Inc., 331 F.2d 1000, 1008 (D.C. Cir.), cert.

denied, 377 U.S. 978 (1964).

37See, e.g., Brophy v. New England Sinai Hosp., 398 Mass. 417, 497

N.E.2d 626, 638 (1986); In re Conroy, 98 N.J. 321, 486 A.2d 1209, 1224-25

(1985); Satkewicz, 373 Mass. 728, 370 N.E.2d 417, 426.

%’American Medical Association Council of Ethical and Judicial Affairs,

Current Opinions of the Council on Ethical and Judicial Affairs of the

American Medical Association 12-13 (1986); American Nurses’ Associa-

tion, Committee on Ethics: Guidelines on Withdrawing or Withholding Food

and Fluid Jan. 1988); American Academy of Neurology, Position of the

Amencan Academy of Neurology on Certain Aspects of the Care and Manage-

ment of the Persistent Vegetative State Patient, reprinted in 39 Neurology

125 (1989); American Society for Parenteral and Enteral Nutrition, Stan-

foregoing of artificial nutrition and hydration should categorically be

proscribed is to deny professional judgment of whether this forgo-

ing is ethically permissible in a particular case.

The decision of the Missour: Supreme Court has jeopardized the

ethical integrity of the medical profession by directly interfering in

the decision-making process, forcing health care professionals to

disregard the patient-centered standard for good decision-making.

Properly stated, the role of the state should be to oversee the medical

decision-making process, not to be the surrogate decision-maker.

‘*The state should stand ready to provide a neutral inquiry into the

basis of the treatment decision.’’ L. Tribe, supra, p. 23, § 16-31,

p. 1601.

Further, the Missouri Supreme Court’s analysis of the burden

of treatment, 760 S.W.2d at 423-24, is defective because it would

require treatment for at least all patients that could not feel or ex-

perience pain. This analysis is not grounded in the principles of

medical decision-making and suggests that no treatment would ever

be burdensome or otherwise contrary to the interests of patients

suffering from a loss of sensation and mentation. The Missouri court

identified a diagnosis of PVS as recuiring unique consideration. Under

their analysis, Nancy Cruzan is not terminally ill, and cannot be harm-

ed by the continuation of gastrostomy feeding. 760 S.W.2d at 424.

They conchide, therefore, that there is no justification for the feeding

to be stopped.**

PVS is characterized by the permanent loss of all possibility for

experience.*® People reasonably differ as to whether such a per-

dards for Nutrition Support: Hospitalized Patients (Jan. 1984); Position of

the American Dietetic Association: Issues in Feeding the Terminally Ill Adult,

87 ADA Reports 78-85 (1987).

39]f this court rules that nutritional support cannot be withdrawn from

Nancy Cruzan, it should, however, carefully restrict the epplication of its

rationale only to PVS patients, since all others can be quite directly made

to suffer by imposed and unwarranted treatment.

40American Academy of Neurology, Position of the American Academy

of Neurology on Certain Aspects of the Care and Management of the Persts-

tent Vegetative State Patient, reprinted in 39 Neurology 125 (1989). See

generally In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987); Brophy, 398 Mass.

417, 497 N.E.2d 626.

et aoe ae,

Ne ee ee ee

esos 8 es oe

ey et no el li ARE te

son should be given medical treatment aimed to delay death, aid

whether they would want continued treatment in a similar situa-

tion. Most of the reasons for treatment are gone: better function,

fewer symptoms, or greater opportunities to achieve life’s ends.

Many individuals value the opportunity for human interaction above

the mere absence of pain. In addition to publications and court cases

that the majority opinion itself quotes,*! the most recent Baby Doe

regulations, that are intended to ensure protection for the sanctity

of life, also regard irreversible coma as a condition that does not

require life-sustaining treatment.4? Many would argue that it is moral-

ly permissible to forgo all life-sustaining treatment in patients that

are permanently unconscious.‘

To be meaningful and to ensure protection of a patient's constitu-

tional nights, the balancing test must give due weight to the patient’s

wishes and interests, as ethical medical care now demands, and the

state must be limited to ensuring that the medical decision-making

process is implemented fully and in good faith. In all but the rarest

circumstances, the state should yield to a decision that ensues from

that process.

41See 760 S.W.2d at 412, 413 n.4.

424~ C.F.R. y 1340.15 (b)(2)(i) (1989).

*3See also Paris & Fletcher, Withholding of Nutrition and Fluids in the

Hopelessly Ill Patient, 14 Clinics in Perinatology 367-77 (1987); OTA, supra

note 2, at 275-332; Hastings Center, Guidelines, supra note 2, at 57-62;

President’s Commission, Deciding to Forego, supra note 2, at 190; Wanzer,

Adelstein, Cranford, Federman, Hook, Moertel, Safar, Stone, Taussig &

van Eys, The Physician's Obligation Toward Hopelessly Ill Patients, 310

New Eng. J. Med. 955, 958 (1984); Wanzer, Federman, Adelstein, Cassel,

Cassem, Cranford, Hook, Lo, Moertel, Safar, Stone & van Eys, The Physi-

cian's Responsibility Toward Hopelessly Ill Patients: A Second Look, 320

New Eng. J. Med. 844-849 (1989); Lynn & Childress, Must Patients

Always Be Given Food and Water?, in By No Extraordinary Means 47-60

(Lynn ed. 1989); Steinbrook & Lo, Artificial Feeding -- Solid Ground, Not

a Slippery Slope, 318 New Eng. J. Med. 286-290 (1988); American Medical

Association, supra note 38, at Opinion 2.18.

CONCLUSION

For the foregoing reasons, the American Genatrics Society as

amicus curiae respectfully requests that the Missouri Supreme Court

decision be reversed and the case remanded for a decision consis-

tent with the Court’s opinion ensuring the ethical integrity of the

medical decision-making process and recognizing the authority of

patients, through their surrogates, to forgo life-sustaining medical

treatment. -

Respectfully submitted,

KEITH R. ANDERSON

Counsel of Record

ANNA MASTROIANNI BOE

Green, Stewart & Farber

2600 Virginia Avenue, N.W.

Suite 1111

Washington, D.C. 20037

(202) 342-8700

Attorneys for the

Amencan Genatncs Society

APPENDIX

AGS POSITION STATEMENT

MEDICAL TREATMENT DECISIONS

CONCERNING ELDERLY PERSONS

(NOTE: This position paper was developed by the Public Policy

Committee and approved by the Board of Directors in May 1987.)

Background

The past few decades have seen much controversy and confusion

over the limits of medical intervention. This is due to reasons such

as increasing efficacy of medical techniques, the increasing burden

of chronic illness in the population, the declining availability of close

family, and increasing litigation. Decisions regarding the application

of medical treatments to parucular patients once concerned only

a small group of involved persons. However, these decisions are

now commonly subject to the attention of the public, of large groups

of people providing care in institutional settings, and of law enforce-

ment officials. This change has led to a need to be explicit about

values, and, as would be expected in this pluralistic society, there

have arisen profound disagreements over these values. Carefully

developed guidelines for standards and procedures can prove helpful

to guide caregivers, patients, and public policy. Such guidelines

reflect (1) a strong commitment to personal autonomy; (2) both an

appreciation of the beneficial potential of modern medicine and hones-

ty regarding its side effects and limitations; and (3) an affirmation

of the inestimable value of life and a clear recognition of the inevitabili-

ty of death.

POSITIONS

1. Patients’ interests are not always best served by apply-

ing all theoretically beneficial treatments. Instead, the

choice made should reflect that patients often have

legitimate concerns about avoiding suffering, advancing

their occupational or family concerns, mitigating disabili-

ty, and sustaining independence. Particular medical in-

terventions may not be warranted in light of overall ef-

fects on well being, although they may be expected to

help a particular medical condition.

Physicians have the responsibility to communicate with

patients and families so that informed choices regarding

care reflect each patient’s own priorities and evaluations

of various projected outcomes.

Informed competent patients are capable of making

reasoned choices that are determinant of medical care,

except when there are substantially detrimental effects

upon others or the choices conflict with legal or profes-

sional standards.

When patients cannot be informed or cannot reason about

the available options in light of their own preferences and

goals, the physician should, for any important decision

or ambiguous choice, involve someone who knows the

patient and can represent the patient’s wishes in mak-

ing a choice. This surrogate is often a close family member

or could be a concerned friend. If the patient has no ap-

propriate surrogate, practitioners and institutions should

arrange for substitutes by developing procedures (such

as biomedical ethics committees) that do not require

routine recourse to formal guardianship proceedings.

Whenever possible the patient should be encouraged to

state his or her preferences in advance of decision-making

incapacity. Such a statement can be informal but should

be appropriately noted in the medical record. Also, pa-

tients should be encouraged to make appropriate use of

durable power of attorney and living will statutes.

Caregiving professionals and institutions should make

available to patients a full range of options for treatment,

including the option of supportive care for dying patients.

We encourage legislation at the state level to insure the

availability of a range of options for patients, including

statues defining durable powers of attorney for health and

carefully structured living wills. Such legislation would

provide authority, in most cases, for decision-making by

appropriate surrogates and physicians without needing

formal guardianship proceedings.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.