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

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SEP eke 1969

No. 88-1503 JOSEPH P. SPANIOL, JR.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

4

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

LESTER L. and JOYCE CRUZAN,

Petitioners,

V.

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,

and ADMINISTRATOR OF THE MISSOURI

REHABILITATION CENTER AT

MOUNT VERNON,

Respondents,

V.

THAD C. MCCANSE, Guardian ad litem,

Respondent.

On Writ of Certiorari to the Missouri Supreme Court

JOINT BRIEF OF AMICI CURIAE, THE AMERICAN

NURSES ASSOCIATION AND THE AMERICAN

ASSOCIATION OF NURSE ATTORNEYS

IN SUPPORT OF PETITIONERS

DIANE TRACE WARLICK, RN, JD

Attorney at Law

P.O. Box 2567 Christiansted

St. Croix,

U.S. Virgin Islands 00822

September 1, 1989 (809) 773-7700

Witeon - Eras PrintinG Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

® 60

— —E ————

TABLE OF CONTENTS

ee eC I cessterecseicicnrncsoctcerennsunstncnnsicen

INTEREST OF AMICI CURIAE ..W02..2......eeeeeeeseeeeeee

SUMMARY OF ARGUMENT .........2.20.22..2.2.---eceoeeeee

ARGUMENT

eee eee eee eer eee eee eee ee eee eee ee

I. THE DECISION BELOW VIOLATES THE

If,

Ill.

MOST FUNDAMENTAL RIGHT TO PER-

SONAL SECURITY AND AUTONOMY

WHICH IS PROTECTED BY THE FOUR-

TEENTH AMENDMENT TO THE CONSTI-

OE sutcinccinntesinssianiianisionie paidieaiiddelasiaddtintiassineneness

A. The Right to Autonomy and Security in

One’s Own Person Is a Fundamental Right..

B. The Fundamental Right to Autonomy and

Self-Determination Overrides the State In-

terest in the Preservation of Life ................

C. Where the Patient Is Incompetent, His

Wishes Will Most Likely Be Effectuated by

the Family in Collaboration With the Health

RE SERS epics nc enE ENR Bremen eam Cr

THE DECISION BELOW WOULD REQUIRE

PROFESSIONAL NURSES TO VIOLATE THE

FUNDAMENTAL PRINCIPLES OF NURS-

ee III ieerrsnaniverirsciashamtsmanionsanisedinsieetsineiinn

A. The Nurse Is Required to Be an Advocate

ESET Re ie ae

B. The Rights of the Providers to Practice in

Accordance With Ethics and Standards of

Nursing Practice are Entitled to Protection..

THE ISSUE BEFORE THIS COURT CANNOT

BE ISOLATED FROM ITS POTENTIAL IM-

PACT UPON THE HEALTH CARE SYSTEM...

TT ssnesinsinibsstictauricisoasesvinideaiidsatilaainanidiateddiaindibe

Page

14

16

16

19

20

23

ii

TABLE OF AUTHORITIES

CASES Page

SUPREME COURT:

Boddie v. Connecticut, 401 U.S. 371 (1971) —....... 7

Bowers v. Hardwick, 478 U.S. 186 (1985) —........... 7

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

QOD .nnunnnescesemnttiniiimea 8-9

Cobbs v. Grant, 502 P.2d 1 (Cal. 1972) -................. 9

Griswold v. Connecticut, 381 U.S. 479 (1965)... 6, 11

“ Loving v. Virginia, 388 U.S. 1 (1967) —............. 7

Meyer v. Nebraska, 262 U.S. 390 (1923) -............... 6

Mobile v. Bolden, 446 U.S. 55 (1980) -...........-.-...... 11

Pierce v. Society of Sisters, 269 U.S. 510 (1925) .. 7

Prince v. Massachusetts, 321 U.S. 158 (1943) _._... 14

Shapiro v. Thompson, 394 U.S. 618 (1963) ............ 11

Skinner v. Oklahoma, 315 U.S. 535 (1942)............. 7

Thompson v. Oklahoma, —— U.S. ——, 108 S.Ct.

2687 (1988) (plurality opinion) —......................... 10

Thornburgh v. American College of Obstetrics and

Gynecology, 476 U.S. 747 (1985) ......... seanrinniesenta 9,15

Union Pacific Railroad v. Botsford, 141 U.S. 250

CIID eencecsesinssieecttncisinenesntcninnihantamaiemimnasee 6

FEDERAL COURTS:

Gray by Gray v. Romeo, 697 F.Supp. 580 (D.R.I.

ED vcceccsenstsntititinsiiitimpime nn 7,11, 12,19

Tune v. Walter Reed Army Medical Hospital, 602

PDBu. 16GB CDA. TOG cceccccsrsistmssmnnn 11

STATE COURTS:

Bouvia v. Superior Court, 225 Cal. Rptr. 297 (Cal.

TS FF 7

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

N.E.2d 626 (Mass. 1986) ................................. 7,9, 12,14

Conservatorship of Drabick, 245 Cal. Rptr. 840

(>) EF 19

Cruzan by Cruzan v. Harmon, 760 S.W.2d 408

1 ee passim

In re Gardner, 534 A.2d 947 (Me. 1987) ................. 7

iii

TABLE OF AUTHORITIES—Continued

Page

In re Guardianship of Barry, 445 So.2d 365 (Fla.

a 9

Matter of Conroy, 486 A.2d 1209 (N.J. 1985) ...... 21

Matter of Conservatorship of Torres, 357 N.W.2d

Nee ivecnsesoncovsce 13

Matter of Jobes, 529 A.2d 434 (N. J. 1987) ........... 7, 13,14

Matter of Peter by Johanning, 529 A.2d 419 (N.J.

a __ceaswacsonsccosecs 12

Matter of Quinlan, 355 A.2d 647 (N.J.), cert. de-

nied sub nom. Garger v. New Jersey, 429 U.S.

Tenn snsceceseesnenecs 9

Rasmussen by Fleming v. Mitchell, 741 P.2d (Ariz.

Cs ccsssnvcowcovecs 7,21

Severns v. Wilmington Medical Center, Inc., 421

nn ccccccnececccerenevess 9

Superintendent of Belchertown v. Saikowitz, 370

se swenseensoesece 22

STATUTES

U.S. Constitution

a ccenteceussecessccecs 6

Fourteenth Amendment ............... oe 7

CAL. ADMIN. CODE, sec. 70707 (West) 0.000.000.0000... 20

Mo. Rev. Stat. sec. 459.010(3) 0... + hae 10

SECONDARY AUTHORITIES

Blackstone’s Commentaries, 1:120-135 (1765)... 5, 6

Code for Nurses with Interpretive Statements,

American Nurses Association, 1985 3, 16, 17

Cowles, K. and E. Murphy, Nursing Practice in the

Care of the Dying (ANA, 1982) .....................16, 17, 18

Cranford, R., M.D. and Smith, D., J.D., “Con-

sciousness: The Most Critical Moral (Constitu-

tional) Standard for Human Personhood”’, 13

American Journal of Law and Medicine, 221

asia iettnatsseeresavreqsecssceesctececsonsenecseee 21

iv

TABLE OF AUTHORITIES—Continued

Dufault, K., “What is Nurse’s Role When Adults

Forego Treatment?”, Ethical Dilemmas Con-

fronting Nurses, 9 (ANA Committee on Ethics,

SUTUTTIED ‘sicccseinéscsnsincicicicuidebibiinstcincuiteeipinpgpaeinadidlaltaheaitasbdei

Guidelines on the Termination of Life-Sustaining

Treatment and the Care of the Dying (The

Page

15, 19

Hastings Center, 1987) ................-22...--.-...-.------- 14, 16, 19

Guidelines on Withdrawing or Withholding Food

and Fluid, ANA Committee on Ethics, Jan.

TTI ischecanieitesicsiccieinsiesantibiieienieeiiainidtanbbaceediaeanbidaeiatamiaaiinitiinideie

Konstantinides, N. and Shronts, E., “Tube Feed-

ing: Managing the Basics”, American Journal

of Nursing, 1812 (Sept. 1983) -.................00.......

Mill, J., “On Liberty”, 48 Great Books of the West-

ern World 271 (R. Hutchins ed. 1952) ................

President’s Commission for the Study of Ethical

Problems in Medicine and Biomedical and Be-

havorial Research, Deciding to Forego Life-

Sustaining Treatment (19838) ....................-....--.----

Riddle, M., ““Prophylactics”, American Journal of

Nereing, 1:40 (Oct. 1900) ................0c....cccceeceeesee

Rubin, M., “The Physiology of Bedrest’”’, American

Journal of Nursing, 50 (Jan. 1988) .....................

The Medicare Handbook, U.S. Dept. of Health and

Human Services at 10-11 (1989) .......................

“What People Can Expect of Modern Nursing

Practice”, Position Statement (National League

for Nursing, 1959) ........... oT saelraeigemeaisesiaaaeinsalsmamaaiad

18

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,

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,

and ADMINISTRATOR OF THE MISSOURI

REHABILITATION CENTER AT

MOUNT VERNON,

. Respondents,

THAD C. MCCANSE, Guardian ad litem,

Respondent.

On Writ of Certiorari to the Missouri Supreme Court

JOINT BRIEF OF AMICI CURIAE, THE AMERICAN

NURSES ASSOCIATION AND THE AMERICAN

ASSOCIATION OF NURSE ATTORNEYS

IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE!

American Nurses Association:

The American Nurses Association (ANA) is an asso-

ciation of registered nurses that is dedicated to the

advancement of the goals and interests of registered

1The parties to this case have consented to the filing of this

amicus brief. The letters providing consent have been filed with the

Clerk of this Court.

2

nurses and of the nursing profession generally. It was

founded in 1897 to promote the professional and educa-

tional advancement of nurses and to establish and main-

tain a code of ethics for the nursing profession. The

ANA currently represents the 2.1 million registered

nurses in the United States and its territories through

its 53 constituent member organizations. The ANA

establishes professional standards for nursing practice,

nursing education, nursing services and a code of ethical

conduct for nurses. Through the code of ethics, the ANA

is mandated to work for the improvement of health stand-

ards and the availability of health care to all persons,

regardless of their social or economic status, lifestyle or

individual value system, or nature of their health prob-

lems.

The American Association of Nurse Attorneys:

The American Association of Nurse Attorneys

(TAANA) is a voluntary non-profit professional associa-

tion whose members have combined the professions of

nursing and law. Established in 1982, its membership is

comprised of individuals who hold professional degrees

in both nursing and law, or have completed the require-

ments for one profession and are actively pursuing a

professional degree in the other. It’s membership pres-

ently numbers over 500. TAANA is dedicated to the

education of nurses on legal issues relevant to the pro-

fession. It is also committed to educating the public and

members of the legal profession about the nature and

standards of nursing practice.

Interest of Amici:

The ANA’s and TAANA’s interest in the present case

is related to the unique role of registered nurses in the

provision of health care. “There is no other professional

provider in the hospital or nursing home who has the

continuous relationships with patients that characterizes

_

3

nursing practice.” * The continuous presence of the nurse

and the intimate nature of nursing care create a sensi-

tivity to client needs and concerns, including the needs

demonstrated by the petitioner. In the case of individuals

in a persistent vegetative state who can do nothing for

themselves, it is the nursing staff who must meet the

client’s physical needs, protect the client’s dignity and

provide emotional support for the family.

Registered nurses constitute the largest group of health

care providers in this country; presently numbering 2.1

million. The Code of Nurses* recognizes that autonomy

in decisions affecting personal health care is fundamental

to respecting the human dignity of each client. As client

advocates, nurses are ethically bound to assist the client

in maintaining control over his or her individual life in

order to assure the client’s dignity and self-esteem. The

decision of the Missouri Supreme Court has created a

tension between the law as found by the court and the

ethical obligations ef the nursing profession. The outcome

of this case on appeal will directly affect the professional

services provided by members of the nursing profession

and the clients they serve. Accordingly, amici wish to

present their views concerning the issues presented on

appeal.

The amici are joined in this brief by the New Jersey

State Nurses Association, the Missouri State Nurses As-

sociation, the American Association of Critical-Care

Nurses, and the Emergency Nurses Association.

2 Statement of Lucille Joel, ANA President, to the President of

the Joint Commission on Accreditation of Healthcare Organizations,

reported in The American Nurse, June 1989 at pg 26.

% Code for Nurses with Interpretive Statements, ANA, 1985.

4

SUMMARY OF ARGUMENT

The right to decide for one’s self whether to submit to

medical treatment is a fundamental interest, deeply rooted

in this nation’s history, and stringently guarded from

state interference by the Constitution of the United

States. The Missouri Supreme Court held that this right

to personal autonomy and self-determination in health

care was outweighed by the state’s interest in the preser-

vation of life in the case of the incompetent before the

court and similarly situated individuals. The decision

below has a very broad reach, and makes no attempt to

narrow its application to those situations where there

is no reasonable basis for determining what the incom-

petent individual would decide.

The decision of the Missouri Supreme Court not only

violates the constitutional rights of incompetent patients

with no hope of recovery, but would require professional

nurses to violate the most fundamental ethic of nursing

practice—the obligation to ascertain and carry out the

wishes of the patient, whether competent or incompetent,

in all situations. It ignores the nurse’s role as patient

advocate, and the ability of the nurse in collaboration

with other health care providers to adequately protect the

state’s interest in the preservation of life. The amici

therefore urge this Court, for the reasons which follow

to reverse the decision below, and to grant the relief re-

quested by the petitioner herein.

5

ARGUMENT

I. THE DECISION BELOW VIOLATES THE MOST

FUNDAMENTAL RIGHT TO PERSONAL SECUR-

ITY AND AUTONOMY WHICH IS PROTECTED BY

THE FOURTEENTH AMENDMENT TO THE CON-

STITUTION

A. The Right to Autonomy and Security in One’s Own

Person Is a Fundamental Right

In a 4-3 decision over vigorous dissent, the Missouri

Supreme Court decided that Nancy Cruzan, an incom-

petent patient with a close and loving family, no longer

has the right to refuse continued medical intervention

which keeps her body functioning. The majority sup-

ported its decision by drawing distinctions rejected by

other courts, relying upon medical “facts” that are not

borne out. by the testimony or medical evidence, and find-

ing an “unqualified state interest in the preservation of

life’. Cruzan by Cruzan v. Harmon, 760 S.W.2d 408,

420 (Mo. banc, 1988). The right to personal security is

a fundamental right which long pre-dates the Constitu-

tion and is inviolate unless and until the rights of an

innocent third party may be affected.

In Blackstone’s Commentaries, 1:125, 136 (1765), he

wrote that the right of security in one’s person is one

of the three “principal absolute rights of every [person]

... Which are founded on nature and reason .. .”, which

are “fundamental laws” and which may not “be sacri-

ficed to public convenience”. This right of personal secu-

rity includes the right “. . . to the preservation of a man’s

health from such practices as may prejudice or annoy it.”

Id. at 130. These rights were first guaranteed to the

people of England under King John’s Great Charter of

Liberties in the Thirteenth Century A.D. They are not

the creation of the Constitution. To the contrary, the

protection and preservation of these important natural

rights is the raison d’etre of the Constitution.

6

For the principal aim of society is to protect individ-

uals in the enjoyment of those absolute rights, which

were vested in them by the immutable laws of na-

ture; ...and are usually summed up in the one gen-

eral appellation, and denominated the liberty of man-

kind.

Blackstone, supra, at 1:120-21. While this Court has

hesitated to protect the right to privacy based upon a

“natural law” approach,‘ the right to be free from un-

consented medical treatment is clearly a fundameatal

right.

The Constitution was ordained and established to

“secure the Blessings of Liberty to ourselves and our

posterity”. U.S. Const., Preamble. The liberty thus

guaranteed “without doubt . . . denotes freedom from

bodily restraint, . . . to marry, to establish a home and

to bring up children . . . and generally to enjoy those

privileges long recognized at common law as essential to

the orderly pursuit of happiness by free men.” Meyer v.

Nebraska, 262 U.S. 390, 399 (1923).

The fundamental nature of the individual’s right to be

free from unconsented medical treatment was recognized

by this Court as early as 1891. In holding that a claim-

ant in a personal injury suit could not be forced to

undergo a physical examination without her consent, this

Court stated that:

“(Njo right is held more sacred, or is more care-

fully guarded by the common law, than the right of

every individual to the possession of his own person,

free from all restraint or interference by others, un-

less by clear and unquestionable authority of law.”

Union Pacific Railroad v. Botsford, 141 U.S. 250, 251

- (1891). Whatever the specific Constitutional language

under which this right is recognized, the interest in free-

dom from unconsented medical care is more personal and

4 See, Griswold v. Connecticut, 381 U.S. 479, 499 (1965) (Harlan,

J. concurring).

7

less likely to affect the rights of third parties than the

rights to freedom of choice in marital decisions,° child

bearing,® and child rearing.’ The Court below relied upon

Bowers v. Hardwick, 478 U.S. 186 (1985) (upholding

the constitutionality of a state statute prohibiting sod-

omy) to disavow the existence of a fundamental right in

this case. Cruzan, 760 S.W.2d at 418. Unlike the con-

duct in question in Bowers, however, the right to control

one’s person, particularly in regard to health care free

from unwanted interference by the state, is “deeply rooted

in this Nation’s history and tradition” and “implicit in

the concept of ordered liberty”. 478 U.S. at 190-91.

The right of the individual to self-determination in

‘health care has been recognized by virtually every court

which has addressed the issue. E.g., Gray by Gray v.

Romeo, 697 F.Supp. 580 (D.R.I. 1988) ; Matter of Jobes,

529 A.2d 434 (N.J. 1987); In re Gardner, 534 A.2d 947

(Me. 1987); Rasmussen by Fleming v. Mitchell, 741 P.2d

674 (Ariz. 1987); Brophy v. New England Sinai Hos-

pital, Inc., 497 N.E.2d 626, 633 (Mass. 1986); Bouvia v.

Superior Court, 225 Cal. Rptr. 297 (Cal. App. 2 Dist.

1986). Nancy Cruzan’s fundamental right to be free

from unconsented medical care has clearly been infringed

by the State of Missouri. If the decision below is allowed

to stand, the state will be allowed to pursue unchecked,

its policy of holding incompetent patients hostage through

medical technology, irrespective of their wishes.

B. The Fundamental Right to Autonomy and Self-

Determination Overrides the State Interest in the

Preservation of Life

The Missouri court acknowledged a common law right

to refuse treatment that is “not absolute” and which may

5 Broddie v. Connecticut, 401 U.S. 371 (1971) ; Loving v. Virginia,

388 U.S. 1, 12 (1967).

6 Skinner v. Oklahoma, 315 U.S. 535 (1942).

t Pierce v. Society of Sisters, 269 U.S. 510, 535 (1925); Meyer

v. Nebraska, 262 U.S. 390, 399 (1923).

8

not be exercised by the parents of an incompetent patient

in accordance with their belief as to what she would

decide if she could. The court held that despite the una-

nimity of medical opinion regarding Nancy’s medical condi-

tion, consent of the guardian ad litem, and court approval

following a full hearing of the issues, the gastrostomy

tube could not be withdrawn. Cruzan, 760 S.W.2d at 421.

In reaching its decision, the court focused upon Nancy’s

inability to give informed consent to the withdrawal of the

artificial nutrition, since she is not capable of making a

personally informed decision. Yet, at the time consent

was given to surgically implant the feeding tube, she was

no more capable of personally giving informed consent

than at the present time. The Missouri court totally

ignores this aspect of the case, although it starts from

the premise that “a decision as to medical treatment must

be informed.” Jd. at 417. The court below rationalized

that since the insertion of the gastrostomy tube has al-

ready been accomplished, albeit without Nancy’s consent,

consent is not required to continue the “introduction of

food and water” through the tube. Jd. at 422-23.

The court below failed however to recognize that the

continuance of tube (enteral) feedings is not without risks

of complications. See Konstantinides, N. and Shronts,

E., “Tube Feeding: Managing the Basics”, American

Journal of Nursing, 1312, 1319-20 (Sept. 1983). Compli-

cations associated with tube feeding include mechanical,

metabolic and gastrointestinal problems, some of whch

may be life-threatening. Jd. The risks of complication

from enteral therapy are not the only potential medical

problems faced by patients in Nancy Cruzan’s condition,

however. Constant bedrest alone has a seriously detri-

mental affect on all the body’s major organs. See, Rubin,

M., “The Physiology of Bedrest”, American Journal of

Nursing, 50 (Jan. 1988).

The right to be free from nonconsensual invasions of

one’s bodily integrity lies at the heart of the doctrine of

informed consent. E.g., Canterbury v. Spence, 464 F.2d

9

772 (D.C. Cir. 1972); Cobbs v. Grant, 502 P.2d 1 (Cal.

1972). The Cruzan court would deny this right where

the treatment is deemed to be “not heroically invasive”

and the patient is incompetent. 760 S.W.2d at 423. As

this Court noted in Thornburgh v. American College of

Obstetrics and Gynecology, “. . . this is, or comes close

to ‘state medicine’ . . .” being imposed upon those un-

fortunate persons in Nancy Cruzan’s condition. 476 U.S.

747, 763 (1985).

A fundamental right of this magnitude cannot be

denied merely because there is no means of obtaining a

personally informed consent. In re Guardianship of

Barry, 445 So. 2d 365, 370 (Fia. Dist. Ct. App. 1984)

(“The constitutional right of privacy would be an empty

right if one who is incompetent were not granted his

rights.”) Severns v. Wilmington Medical Center, Inc.,

421 A.2d 1334, 1887 (Del.Ch. 1980) (“[T]o deny the

exercise because the patient is unconscious would be to

deny the right.”) Matter of Quinian, 355 A.2d 647, 664

(N.J.), cert. denied sub nom. Garger v. New Jersey, 429

U.S. 922 (1976). (“If a putative decision by Karen to

permit this non-cognitive, vegetative existence to termi-

nate by natural forces is regarded as a valuable incident

of her right to privacy . . . then it should not be dis-

carded solely on the basis that her condition prevents

her conscious exercise 7f the choice.””) The Massachusetts

Supreme Court has held that the maintenance of a person

in a persistent vegetative state for a period of years is

intrusive treatment as a matter of law. Brophy, 497

N.E.2d at 636.

The position of the majority below ignores the funda-

mental rights of incompetent individuals who have abso-

lutely no hope of recovering any cognitive function to

decide, at some point, to “allow the natural processes of

a disease or affliction to bring about a death with dig-

nity.” Jd. This Court has previously recognized that the

‘law must often adjust the manner in which it affords

rights to those whose status renders them unable to exer-

10

cise the choice freely”, noting that “those who are irre-

versibly ill with loss of brain function . . . retain ‘rights’

to be sure, but often those rights are only meaningful

as they are exercised by agents acting with the best

interests of their principals in mind.” Thompson v. Okla-

homa, —— USS. . n.23, 108 S.Ct. 2687, 2693

n.23 (1988) (plurality opinion). The Cruzan majority

purports to protect the right of incompetents to exercise

their right to refuse treatment by acknowledging the

power of a guardian, but states that the third party may

not do so “absent the most rigid of formalities.” 760

S.W.2d at 425. It’s edict mandating the “formalities re-

quired under the Missouri Living Will Statute” * or “clear

and convincing, inherently reliable evidence absent here”’

be met renders the Missouri court’s position illusory at

best.

The court below noted that it is impossible for consent

to refuse treatment to be given under “hypothetical cir-

eumstances”. Jd. at 417. Since the expression of an in-

dividual’s wishes as to the termination of treatment, if

and when the individual ever were to become incompetent,

must necessarily be based upon a hypothetical, nothing

less than compliance with the formalities of the Missouri

Living Will Statute, swpra, would ever meet the stand-

ards demanded. Since the living will statute precludes

the withdrawal of nutrition and hydration in any event,

persons cannot utilize the procedures established by the

act to give an advance directive to withdraw a feeding

tube that will be respected by the Missouri courts. Thus,

despite the Cruzan majority’s note that “[t]his is not a

matter of a forfeiture of a constitutional right because

that term implies some state action which deliberately

removes or limits a constitutional right”, 760 S.W.2d at

418 n.14, the constitutional rights of Nancy Cruzan, and

all others similarly situated are clearly implicated.

“A person has a paramount right to control the

disposition to be made of his or her body, absent a com-

8 Mo.Rev.Stat. sec. 459.010 et seq.

11

pelling countervailing governmental interest.” Gray by

Gray, 697 F.Supp. at 585, citing, Tune v. Walter Reed

Army Medical Hospital, 602 F.Supp. 1452, 1454 (D.D.C.

1985). A state law which infringes a fundamental right

is presumptively unconstitutional. Mobile v. Bolden, 446

U.S. 55, 76 (1980). As John Stuart Mill explained,

[T]he only purpose for which power can be right-

fully exercised over any member of a civilized com-

munity, against his will, is to prevent harm to others.

His own good, either physical or moral, is not a suf-

ficient warrant. He cannot rightfully be compelled

to do or forbear because it will be better for him

to do so, because it will make him happier, because

in the opinion of others, to do so would be wise or

even right.

Mill, J., “On Liberty”, 43 Great Books of the Western

World 271 (R. Hutchins ed. 1952).

The decision below was not premised upon the neces-

sity to protect the rights of third parties, but upon a

nebulous state interest in the preservation of life ex-

pressed in the subsequently enacted living will statute.

The majority did not attempt to find a means to protect

the rights of incompetents who would not wish to con-

tinue a vegetative existence in the face of a hopeless prog-

nosis. To the contrary, the court held that the state’s

strong interest overrides “any rights invoked on Nancy’s

behalf to terminate treatment”, period. Cruzan, 760

S.W.2d at 426. The interest of the state and the “formali-

ties’ required by the majority do not withstand review

under the compelling state interest test in this situation.

Not only must the state interest be compelling as a

matter of law, but any limitations imposed by the state

upon the exercise of a fundamental right must be nar-

rowly drawn and reasonably related to the legitimate

state interest at stake. E.g., Griswold v. Connecticut,

381 U.S. at 485; Shapiro v. Thompson, 304 U.S. 618

(1963).

12

The Missouri court attempts to protect the rights of

incompetent patients who would choose to continue treat-

ment in an extremely broad manner, and without regard

to the rights of those who would choose to terminate the

treatment.* Allowing the state to take any option away

from incompetent patients by default cannot withstand

constitutional muster. The court must fashion a pro-

cedure for surrogate decision making which will recog-

nize the patient’s rights, and to the maximum extent

feasible assure that the patient’s wishes are given effect.

Every court that has considered the issue has been

able to develop a mechanism and standards which it was

confident would protect the rights of the incompetent

without compromising legitimate state interests." While

the courts are not in complete agreement as to the exact

procedures to be followed, the courts have unanimously

found that the rights of the incompetent outweigh any

countervailing state interest in the preservation of life.

E.g., Gray, 697 F.Supp. at 589 (the continued use of a

gastrostomy tube against the incompetent’s wishes as de-

termined by her family and a court appointed guardian

ad litem, robs her of the right to self-determination in

her medical care, which outweighs the state’s interest in

the preservation of life for all); Brophy, 497 N.E.2d at

635 (duty of state to preserve life must recognize indi-

vidual’s right to avoid circumstances in which the indi-

vidual himself would feel that efforts to sustain life

demean or degrade his humanity); Matter of Peter by

Johanning, 529 A.2d 419, 427 (N.J. 1987) ( the court

finds it “difficult to conceive of a case in which the

state could have an interest strong enough to subordinate

® This decision cannot be viewed in a vacuum. The impact upon

other incompetent PVS patients must be considered given the

breadth of the holding below.

10 See, bibliography of cases compiled by the majority in Cruzan,

760 S.W.2d at 412 n.4.

13

a patient’s right to choose not to be artificially sustained

in a persistent vegetative state). In cases of temporary

incompetency due to medical conditions, patient’s families

routinely make decisions for the incompetent, without

judicial involvement of any nature."

The ethical integrity of health care providers is re-

spected and protected by the courts. The New Jersey

Supreme Court has specifically recognized that the state

interest in the preservation of life is sufficiently protected

by the ethical, moral and legal obligations of physicians

and other health care personnel. Jd. at 448 n.15. Matter

of Jobes, 529 A.2d at 448. The ANA Code requires the

nurse

[a]s advocate for the client ... [to] be alert to and

take appropriate action regarding any instances of

incompetent, unethical, or illegal practice by any

member of the health care team or the health care

system, or any action on the part of others that

places the rights or best interests of the client in

jeopardy.

ANA Code, supra, at 6. The Code also requires nurses

to “take all reasonable means to protect and preserve

human life when there is hope of recovery or reasonable

hope of benefit from life-prolonging treatment.” Jd. at 2.

The mandate of the nursing profession’s code of ethics

in conjunction with the similar obligations of other mem-

bers of the health care team assures that the govern-

mental interest in the preservation of life will be pro-

tected, at the same time that the rights of incompetent

patients are preserved.

It is reported that “on an average about 10 life support sys-

tems are disconnected weekly in Minnesota.” Matter of Conserva-

torship of Torres, 357 N.W.2d 332, 341 n.4 (Minn. 1986). The

President’s Commission Report states that life supporting treat-

ment is withdrawn from many of the nation’s permanently un-

conscious patients. President’s Commission for the Study of Ethi-

cal Problems in Medicine and Biomedical and Behavioral Research,

Deciding to Forego Life-Sustaining Treatment, at 176-77 n.15

(1983).

12 F.g., see brief of amicus curiae the American Medical Asso-

ciation.

14

The Missouri court reached a decision below which is

diametrically opposed to virtually every other judicial

opinion on the issue. In weighing the benefits and burdens

of continuing the treatment, the court conveniently ig-

nored pertinent medical facts to achieve its objective. In

conclusory terms, the court finds that Nancy’s current

condition and total care requirements are not sufficiently

burdensome to her to outweigh the state’s interest in the

preservation of life. Cruzan, 760 S.W.2d at 424. It is

significant to note that the court omitted mention of any

countervailing benefit to Nancy.’’ The position of the

Missouri court totally ignores the individual’s right to

maintain human dignity even in the absence of mental

awareness. Nancy lies helplessly in bed, with no control

over her intimate bodily functions. She must be bathed

and have her bowel and bladder functions taken care of

by strangers. Her extremities are so permanently flexed

from the combined effect of brain damage and muscular

contractures that she lies in what is approaching a fetal

position, unable to turn or move on her own. Even with

assistance she can no longer straighten her arms or legs.

Her wrists and elbows are so contracted that her finger-

nails grow into her wrists and forearms. For a woman

who was outgoing and independent, 760 S.W.2d at 432,

the impact of her condition on her dignity must be given

consideration, even though she is no longer competent,

e.g., Brophy, 497 N.E.2d at 635.

C. Where the Patient Is Incompetent, His Wishes Will

Most Likely Be Effectuated by the Family in Col-

laboration With the Health Care Team

This court has long recognized that there is a “realm

of family life which the state cannot enter” without sub-

stantial justification. Prince v. Massachusetts, 321 U.S.

13 The Hastings Center Report finds that “the only possible bene-

fit to [patients who are permanently unconscious] of life-sustaining

treatment is the possibility that the diagnosis of irreversible un-

consciousness is wrong and they will regain consciousness.” Guide-

lines on the Termination of Life-Sustaining Treatment and the

Care of the Dying, 29 (The Hastings Center, 1987) (hereinafter

“Hastings Center Report”).

15

158, 166 (1943). Justice Stevens has summarized the

privacy decisions as recognizing the right of individuals

to make “certain unusually important decisions that will

affect his own, or his family’s destiny,” Thornburgh, 476

U.S. at 781 (concurring opinion). Surely no decision

subsequent to one’s birth is more important than the man-

ner of one’s death, when faced with a choice. The special

role of the family in the case of incompent individuals

has been firmly established by the courts, the healing

professions and the nation’s leading ethicists.

“Family members are best qualified to make sub-

stituted judgments for incompetent patients not only

because of their peculiar grasp of the patients ap-

proach to life, but also because of their special bonds

with him or her. Our common human experience

informs us that family members are generally most

concerned with the welfare of a patient. It is they

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

best interest, and they who treat the patient as a

person rather than a symbol of a cause.”

In Re Jobes, 529 A.2d at 445.

Where an individual lacks the capacity to make his or

her own informed health care decisions, “. . . the respon-

sibility rests on those presumed to know what the person

would desire. .. .”. Dufault, K., “What is Nurse’s Role

When Adults Forego Treatment?”, Ethical Dilemmas Con-

fronting Nurses, 9 (ANA Committee on Ethics, 1985).

In the present case, all of the extensive medical care and

numerous invasive procedures Nancy has been subjected

to were consented to by her husband and parents without

court involvement. Following an extensive study of the

issues involved, The Presidents Commission concluded:

The decisions of patients’ families should determine

what sort of medical care permanently unconscious

patients receive. Other than requiring appropriate

decisionmaking procedures for these patients, the

law does not and should not require any particular

therapies to be applied or continued, with the excep-

16

tion of basic nursing care that is needed to ensure

dignified and respectful treatment of the patient.

President’s Commission Report, supra at 4-5. Where the

patient has left no advance directive, the goal in identify-

ing a surrogate decision maker must be “to find the per-

son who is most involved with the patient, and most

knowledgeable about the patient’s present and past feel-

ings and preferences. Hastings Center Guidelines, supra,

at 24.

By virtue of the amount of time spent with the client

and the client’s family, the nurse is in a unique position

to identify the most appropriate surrogate in a particu-

lar case, and to be aware of the wishes of the incompe-

tent. See, Cowles, K. and E. Murphy, Nursing Practice

in the Care of the Dying, 10 (ANA, 1982). The court in

Matter of Jobes found that surrogate decision making

by the families of incompetent patients is strong:y sup-

ported by public opinion. 529 A.2d at 446. The patients’

wishes remain paramount, and in the case of the incom-

petent adult, it is the family who is most likely to know

what those wishes would be. Jd. Thus, the family in col-

laboration with the nurse and other members of the

health care team is the most appropriate surrogate de-

cision maker in those cases where the incompetent patient

is fortunate enough to have a close and loving family.

II. THE DECISION BELOW WOULD REQUIRE PRO-

FESSIONAL NURSES TO VIOLATE THE FUNDA-

MENTAL PRINCIPLES OF NURSING PRACTICE

A. The Nurse Is Required to Be an Advocate for Her

Clients

The ANA Code for Nurses with Interpretive State-

ments states in its Preamble:

The Code for Nurses is based upon a belief about

the nature of individuals, nursing, health and so-

ciety. Nursing encompasses the protection, promo-

17

tion and restoration of health; the prevention of ill-

ness; and the alleviation of suffering in the care of

clients including individuals, families, groups and

communities. In the context of these functions, nurs-

ing is defined as the diagnosis and treatment of hu-

man responses to actual or potential health problems.

Since clients themselves are the primary decision

makers in matters concerning their own health, treat-

ment, and well-being, the goal of nursing actions is

to support and enhance the client’s responsibility and

self-determination to the greatest extent possible. |

ANA Code at i.

The ANA Code was first adopted in 1950, formalizing

the basic philosophical: values of the nursing profession.

Its principles “. . . are not open to negotiation in em-

ployment settings. ..”. Jd. at iv.

The nurse’s role as an advocate for her patients has

long been recognized by the profession. Reference to this

rele appears early in the nursing literature. “The nurse

. . is the picket-guard. On her care and watchfulness

the well-being of the patient very largely depends. Riddle,

M., “Prophylactics”, American Journal of Nursing, 1:40

(Oct. 1900). The nurses obligation to safeguard the

client’s moral right to self-determination will be seriously

undermined if the decision below is allowed to stand.

“The fundamental principle of nursing practice is re-

spect for the inherent dignity and worth of every client”.

ANA Code at 2. Every person is the product of a differ-

ent collection of experiences and realities that make him

or her an individual, with a unique perspective. Respect

for the individual requires an evaluation of that person’s

values as reflected in his lifestyle, religious values, priori-

ties and opinions. See; Cowles, supra at 3. The decision

of the Missouri Supreme Court would require nurses to

disregard the client’s wishes, by requiring every person

to be treated identically despite his or her unique per-

18

spective. The decision below thus ignores the dignity

of the individual.

The ANA recognizes that it is morally permissible to

withhold food and fluid at the request of a competent, re-

flective adult. Guidelines on Withdrawing or Withhold-

ing Food and Fluid, ANA Committee on Ethics, Jan.

1988. Although the issue is clearly more difficult when

the patient is no longer competent, the nurse is still re-

quired to respect the client’s wishes “when it is possible

to establish with certainty the patient’s projected re-

fusal.” Jd. at 2. The Guidelines recognize that appro-

priately validated advance directives may be “aids in dis-

cerning the patient’s view.” Likewise, the opinions of

the family as the persons most likely to be familiar with

the incompetent individual’s values and preferences, should

be taken into consideration.

The application of a previously stated refusal will,

of necessity, require judgment—both clinical and

moral—of nurses and other caregivers as to whether

the current situation is one to which the patient in-

tended her or his refusal to apply. In general, Ad-

vance Directives, even those involving the withhold-

ing or withdrawing of food and fluid should carry

great weight in caregiver’s discussions with the pa-

tient’s family or surrogate. It is imperative, in this

process, that nurses not substitute their own views

about which lives are worth saving and living for

the views of their competent or formerly competent

patients.

Id.

The withholding or withdrawing of food and fluid does

not terminate all care the client had been receiving. To

the contrary, while medical treatment may be terminated,

nursing care must continue. Nursing Practice in the

Care of the Dying, supra, at 10.

When the choice is made to forego life-sustaining

treatments, greater emphasis is placed on human

19

contact. Care is then directed toward prevention and

relief of the suffering commonly associated with the

process of dying. Nursing care will determine to a

great degree how this final experience is lived and

the peace and dignity with which death is approached.

Dufault, “What is the Nurse’s Role When Adults Forego

Treatment”, supra, at 10. Most nursing measures are

of a supportive and caring nature. The measures that

would appropriately be continued where a decision has

been made to withdraw food and fluids include skin care

and turning to prevent skin breakdown; mouth care to

keep the mouth clean, mucous membranes moist and lips

from cracking or blistering; keeping the bed linen clean

and dry and otherwise maintaining patient hygiene and

comfort. See, Conservatorship of Drabick, 245 Cal. Rptr.

840, 845 (Cal. App. 6 Dist. 1988).

B. The Rights of the Providers to Practice in Accord-

ance With Ethics and Standards of Nursing Prac-

tice are Entitled to Protection

Much has been written and the courts have long recog-

nized the preservation of the ethical integrity of the

medical profession as a legitimate consideration in the

balancing of individual rights in health care matters

against the interests of the state. E.g., Gray, 697 F.

Supp. at 588; Brophy, 497 N.E.2d at 634; Hastings Cen-

ter Guidelines, supra at 19-20. The Cruzan court, to-

gether with virtually all other courts addressing the issue

of withdrawal of life-sustaining treatment has recognized

this interest. 760 S.W.2d at 419. Ethical concerns in the

provision of health care services are not limited to the

medical profession. The care of patients in a persistent

vegetative state is primarily nursing care, not medical

care. It is the nurse who spends the many hours at the

patient’s bedside, while the physician may stop in to

check on the patient on a daily basis, or even less fre-

quently in the case of longterm patients with chronic

conditions. Thus, the courts must also recognize and

protect the ethical integrity of the nursing profession.

20

Nursing was the first professional group to issue a

statement recognizing patients rights, in 1959. “What

People Can Expect of Modern Nursing Practice”, Position

Statement (National League for Nursing, 1959). The

patient’s right to autonomy and self determination in

health care decisions is now widely recognized by health

care institutions, in the form of a patient’s Bill of Rights.

The American Hospital Association (AHA) issued its

first “Statement on a Patient’s Bi:) of Rights” in 1973.

Many organizations and some states have subsequently

followed the lead of professional nursing in recognizing

and mandating that patients be afforded their funda-

mental rights in healthcare facilities. E.g., “A Model

Patient’s Bill of Rights”, American Civil Liberties Union;

Policy and Statement of Patients’ Choices of Treatment

Options’, AHA 1985; CAL. ADMIN. CODE, sec. 70707

(West). Uniformly, these patient’s rights statements rec-

ognize the right to autonomy and self determination in

deciding whether to undertake or forego medical care.

Nurses practicing in these institutions are entitled to fol-

low these precepts which the profession was so instru-

mental in developing.

The Cruzan majority would require the nurse to violate

the most fundamental moral principle which prescribes

and justifies nursing actions: respect for individuals and

their personal autonomy. The state interest in maintain-

ing the ethical integrity of the nursing »rofession re-

quires that the decision below be reversed.

Ill. THE ISSUE BEFORE THIS COURT CANNOT BE

ISOLATED FROM ITS POTENTIAL IMPACT UPON

THE HEALTH CARE SYSTEM

The opinion of the Cruzan majority creates numerous

public policy concerns without addressing any potential

resolutions. While courts generally refrain from deciding

questions not directly before them, the decision in this

matter cannot be totally divorced from the potential con-

21

sequences and underlying policy concerns. Many courts

which have addressed the issue presented have done so

against challenges of mootness because of the intervening

death of the incompetent individual whose rights are in

question. E.g., Rasmussen, 741 P.2d at 680; c.f. Matter

of Conroy, 486 A.2d 1209 (N.J. 1985). These courts have

nevertheless heard the case as one which is “capable of

repetition yet likely to evade review”. In this situation,

where the rights of many individuals are likely to be

affected before this court has another opportunity to

address the issue, the policy questions must be given con-

sideration, and guidance given to the lower courts.

The allocation of increasingly scarce health care re-

sources, while an unpleasant subject, is a policy issue

which cannot be ignored. It was reported in 1987 there

are between 5,000 to 10,000 persons in a persistent vege-

tative state in this country at any one time, and the

number is expected to increase. Cranford, R., M.D. and

Smith, D., J.D., “Consciousness: The Most Critical

Moral (Constitutional) Standard for Human Person-

hood’, 13 American Journal of Law and Medicine, 231,

238 (1987). The Massachusetts Supreme Court found

that Mr. Brophy received 7.5 hours of nursing care per

day to meet his basic needs. 497 N.E.2d at 631. The

federal Medicare program presently pays for only 3.5

hours of nursing care per day, but only if skilled nursing

care is required, and then, only for 150 days per year.

The Medical Handbook, U.S. Dept. of Health and Human

Services at 10-11 (1989).

Nancy Cruzan lies in a state institution, and the court

below found that the state of Missouri “is apparently

willing to maintain Nency as long as she lives without

expense to her parents or others”. Cruzan, 760 S.W.2d

at 427. Her care is reported to cost the state of Missouri

$130,000.00 per year. See, Petitioner’s Brief, Statement

of Facts. There is a serious question whether the state

of Missouri has actually allocated sufficient resources to

22

to provide care to Nancy that meets accepted nursing

standards however, the fact that her contractures are

still progressing raises concern of professional nursing as

to whether every nursing measure that can be taken to

maintain her comfort and dignity has been taken.

Not all patients similarly situated as Nancy Cruzan

are in state institutions. When the private insurance, if

any, runs out, who will pay? The American Hospital

Association has reported that in 1988, eighty-one U.S.

community hospitals closed. The American Nurse, March

1989 at 11. A major reason for the closures is inadequate

Medicare and Medicaid payments for services rendered to

the elderly and the poor._Im_recent years, seven out of

ten rural hospitals and fifty percent of the nation’s urban

hospitals have lost money. Jd. Judge Blackmar, in his

dissent below has pointed out that the State of Missouri

has not shown a willingness to “finance the preservation

of life, without regard to cost” in very many cases.

Cruzan, 760 S.W.2d at 429.

Many courts addressing the withdrawal of life-

sustaining treatments have recognized serious policy con-

cerns in regard to precluding the withdrawal of treat-

ments which may legally and morally be withheld in the

first instance. Will the prohibition encourage patients,

their families and health care providers to decide not to

start enteral therapy, or to refuse consent to surgically

implant a feeding tube in the fear that they may there-

after be legally mandated to continue the treatment even

though no hope of recovery or long-term improvement

remains? The Massachusetts Supreme Court pointed out

that these decisions are becoming more difficult as the

medical profession has begun to realize that life-sustaining

measures in many cases serve only “to prolong suffering,

isolate the family from their loved one at a time they

may be close at hand or result in economic ruin for the

family.” Superintendent of Belchertown v. Saikowitz,

370 N.E.2d 417, 423 (1977).

ail

23

CONCLUSION

The amici herein have no answers to these difficult

policy issues. Nonetheless, they are questions which

nurses and other health care providers will face with

increasing frequency if the decision below is allowed to

stand. For the reasons set forth above, the amici urge

this court to recognize and give effect to the rights of

incompetent patients to autonomy and self-determination

in health care decisions, to support the ethical values of

the nursing profession and allow health care providers

to determine and carry out the wishes of incompetent

patients in collaboration with families or other appro-

priate surrogate decision makers.

Respectfully submitted,

DIANE TRACE WARLICK, RN, JD

Attorney at Law

P.O. Box 2567 Christiansted

St. Croix,

U.S. Virgin Islands 00822

September 1, 1989 (809) 773-7700